REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  7399      OF 2008 (Arising out of SLP (C) No. 1575 of 2007)

National Insurance Co. Ltd. …. Appellant

Versus

Rattani and others ….. Respondents

J U D G M E N T

S.B.SINHA, J.

1. Leave granted.

2. Appellant  is  before  us  aggrieved  by  and  dissatisfied  with  the

judgment  and  order  dated  31st July,  2006  whereby  and  whereunder  an

appeal preferred by it was dismissed in limine by the High Court of Punjab

and Haryana at Chandigarh stating :-

“ For  the  reasons  in  paras  43  &  44  of  the award  of  the  Tribunal,  we  find  no  ground  to interfere in this matter.

Dismissed.”

3. Ordinarily we would have remitted the matter back to the High Court

as the appeal of the appellant under Section 173(1) of the Motor Vehicles

Act 1988 (for short ‘the Act) has not been considered on merit, but, keeping

in view the fact that the respondent Nos. 1 to 6 being mother, brothers and

sisters of the deceased having been awarded a total amount of compensation

of Rupees one lac forty thousand only, we chose to hear the parties on merit.

4. The  accident  took  place  on  15th May,  2002  when  deceased  Sunil

Kumar alongwith other injured persons,  were travelling as members of a

marriage party in a Tata 407 vehicle bearing registration No. HR-39-9869.

Indisputably it was a goods vehicle.  The first information report was lodged

in relation thereto wherein the driver of the vehicle was made an accused.   

5. Separate  claim  petitions  were  filed  by  the  heirs  and  legal

representatives of the deceased as well as by the injured before the Motor

Vehicles Claims Tribunal, Bhiwani.   

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In the  claim petition in  question,  the  relevant  portion  of  the  claim

form was filled up as under :-

“Was  the  person  in  respect  of  the  whom compensation  is  claimed,  traveling  in  the  motor vehicle  involved  in  the  accident,  if  so,  give  the name  of  station  and  start  of  journey  and  its destination?

Yes, the deceased Sunil  Kumar alongwith others was  traveling  as  a  Barati  in  the  Tata  407  being driven  by  the  respondent  no.1  and  they  were returning  after  attending  the  marriage  function from village Jharli to Kusumbi.”  

Against the column ‘cause of accident with brief descriptions’ it was

stated:-

“Brief facts of the accident are that the deceased Sunil Kumar alongwith others was traveling in the capacity as Barati in Tata 407 in question and after attending  the  marriage  function  were  returning from Jharli  to village Kusumbhi in the Tata 407 which  was being  driven by the  respondent  no.1. The vehicle was being driven rashly, negligently and at a very high speed and inspite of warning to the respondent no.1 to drive the vehicle slowly the respondent  no.1  continued  driving  rashly  and negligently  and  on  15.5.2002  at  about  6.30  PM

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when the vehicle after crossing Railway Phatak of Dhalwas and were going towards Sehlanga due to rash and negligent driving of respondent no. 1, the respondent  no.1  lost  control  on  the  vehicle resulting to turn turtle and several persons suffered grievous  injuries  and  deceased  Sunil  and  one Photographer named Hazari died at the spot.  On the statement of Rameshwar son of Akhey Ram, r/o. Mundhal  Khurd, one of the eye witness and traveling  as  Barati  FIR No.  98  dated  16.5.2002 was  lodged  against  the  respondent  No.1,  which contains the detailed manner of accident   how it took place and be read as part of this petition.  The respondents  being  the driver,  owner and insurer, are  jointly  and  severally  liable  to  pay compensation to the petitioners.”

6. As a reference has been made to the first information report bearing

No. 98 dated 16th May, 2002, which was lodged against  the  driver,  first

respondent in the claim petition, we may also notice the relevant portion of

the contents thereof from the award of the Tribunal.:-

“…He referred to the contents of FIR Ex. P2 wherein  it  is  mentioned  that  all  the  members  of marriage  party  were  the  occupants  of  the  four wheeler  and  there  was  no  mention  that  dowry articles or some furniture etc. were loaded in the vehicle.”

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7. We are not oblivious of the fact that ordinarily an allegation made in

the first information would not be admissible in evidence per se  but as the

allegation made in the first information report had been made a part of the

claim  petition,  there  is  no  doubt  whatsoever  that  the  Tribunal  and

consequently the appellate courts would be entitled to look into the same.  

8. However,  in  their  depositions,  the  claimants  raised  a  new  plea,

namely that the deceased and the other injured persons were travelling in the

said truck as representatives of the owner of the goods.

9. Mr. M.K. Dua, learned counsel appearing on behalf of the appellant

would submit that in the aforementioned situation there is no escape from

the  conclusion  that  the  deceased  and  the  injured  were  members  of  a

marriage  party  only  and  could  not  have  travelled  in  a  goods  vehicle  as

representatives of the owner of the goods.   

10. Mr. Subramonium Prasad, learned counsel appearing on behalf of the

owner  of  the  vehicle,  on  the  other  hand,  submitted  that  it  was  for  the

insurance company to prove breach of conditions of the insurance policy

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and the same having not been done, the judgment of the Tribunal cannot be

assailed.   

In  this  connection  our  attention  has  been  drawn  to  the  following

findings of the Tribunal :-

“In  the  present  case  the  evidence  on  record indicates  that  deceased  Sunil  Kumar  and  other injured  were  occupying  the offending  vehicle  as being  representative  of  the  owner  of  the  goods. No  evidence  was  produced  on  behalf  of  the Insurance Company to the effect that deceased and injured  were  gratuitous  passengers…….All  the injured petitioners were cross examined at length but  nothing  useful  to  the  case  of  Insurance Company  could  be  exacted  from  them.   They deposed  that  for  carrying  members  of  marriage party there was one bus.  Hence it is observed that Insurance  Company  failed  to  prove  that  insured had  violated  the  terms  and  conditions  of  the Insurance  Policy.   Deceased  Sunil  and  injured Maru  and  Rameshwar  were  not  gratuitous passengers  in  the  offending  vehicle  being representative of the owner of the goods.”

11. Ordinarily we would not have entered into the realm of appreciation

of evidence but as the High Court failed and/or neglected to do so, we have

no  other  option  but  to  undertake  the  job  of  the  High  Court.   The  first

information report which was brought on record, clearly proceeded on the

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basis that the deceased and the other injured persons were members of the

marriage party.   

12. Even if the submission of Mr. Subramonium Prasad that in the truck

the goods offered by way of gift by the bride party were being transported is

correct, the deceased and others could not have become the representatives

of the owner of the goods.  Even otherwise in view of the averments made

in  the  claim petition  and the  first  information  report  the  said  contention

cannot be accepted.   

Furthermore in their depositions the witnesses examined on behalf of

the claimants themselves stated that about 30 – 40 persons were travelling

in the tempo truck.  All 30 – 40 persons by no stretch of imagination could

have been the representatives of the owners of goods, meaning thereby, the

articles of gift.

13. The question as to whether burden of proof has been discharged by a

party to the lis or not would depend upon the facts and circumstances of the

case.   If  the  facts  are admitted or,  if  otherwise,  sufficient  materials  have

been  brought  on  record  so  as  to  enable  a  court  to  arrive  at  a  definite

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conclusion, it is idle to contend that the party on whom the burden of proof

lay would  still  be  liable  to  produce  direct  evidence  to  establish  that  the

deceased and the injured passengers were gratuitous passengers.   

As indicated hereinbefore, the First Information Report as such may

or  may not  be  taken  into  consideration  for  the  purpose  of  arriving  at  a

finding in regard to the question raised by the appellant herein, but, when

the  First  Information  Report  itself  has  been  made  a  part  of  the  claim

petition, there cannot be any doubt whatsoever that the same can be looked

into for the aforementioned purpose.

14. An admission made in the pleadings, as is well-known, is admissible

in evidence proprio vigore.  We, thus, are of the opinion that the Tribunal as

also the High Court committed a serious error in opining that the insurance

company was liable.   

Reliance placed by the learned counsel on a decision of this Court in

National Insurance Co. Ltd. v. Baljit Kaur and Others [(2004) 2 SCC 1] is

misplaced.  The question which arose for consideration therein was as to

whether the words “any person” shall include a gratuitous passenger despite

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the amendment  made in  Section  147 of  the Act  by reason of  the Motor

Vehicles (Amendment) Act, 1994.   

Following New India Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC

223], it was categorically held:

“20.  It  is,  therefore,  manifest  that  in spite of the amendment  of  1994,  the  effect  of  the  provision contained in Section 147 with respect  to persons other  than  the  owner  of  the  goods  or  his authorized  representative  remains  the  same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the  liability  of  the  insurer  with  respect  to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of  insurance  was  entered  into,  nor  was  any premium  paid  to  the  extent  of  the  benefit  of insurance to such category of people.”

In  National Insurance Co. Ltd. v.  Cholleti Bharatamma and Others

[(2008) 1 SCC 423], this Court categorically held:

“27.  The  learned  counsel  appearing  for  the respondent,  submitted  that  from  the aforementioned  finding,  it  is  evident  that  the respondent  was  travelling  as  the  owner  of  the

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goods. We do not think that the said submission is correct. PW 2, in his evidence, stated:

“I am doing tamarind business. I witnessed the accident which took place about 3 years back  at  about  6  a.m.  at  Borrampalem junction beyond Talluru. At the time of the accident I was in the crime lorry by the side of  the  driver.  Myself  and  6  others  were carrying tamarind in that lorry belonging to us.  We  boarded  the  lorry  along  with  our load of tamarind at Dharamavaram to go to Rajanagaram. We were selling the tamarind at  Rajanagaram  in  retail  by  taking  the tamarind there in our lorry from our village of Dharamavaram.”

28. The Tribunal, therefore, correctly recorded that according  to  PW  2,  he  was  travelling  with  his goods as owner thereof and not the deceased.”

We, therefore,  in  the facts  and circumstances  of  the  case,  have  no

hesitation to  hold that the victims of  the accidents  were travelling in the

truck as gratuitous passengers and in that view of the matter, the appellant

herein was not liable to pay the amount of compensation to the claimants.  

15. For the  reasons  aforementioned,  the impugned judgment  cannot  be

sustained which is set aside in so far as the liability of the appellant herein is

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concerned.  The appeal is allowed.  However, in the facts and circumstances

of the case, there shall be no order as to costs.

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; December 18, 2008

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