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CASE NO.: Appeal (civil)  2526 of 2007

PETITIONER: Oriental Insurance Co. Ltd

RESPONDENT: Premlata Shukla & Ors

DATE OF JUDGMENT: 15/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.2526 of  2007 [Arising out of S.L.P. (C) No. 2427 of 2006]

S.B. SINHA, J.

1.      Leave granted.

2.      Deceased Shivnandan Prasad Shukla was travelling in a Tempo Trax  for going to Allahabad from Bhopal.   It collided with a truck.  Registration  Number of truck could not be noticed.   The truck also could not be traced.   A First Information Report was lodged by one of the occupants of the  Tempo Trax.  An investigation on the basis of the said First Information  Report for commission of an offence under Section 304-A of the Indian  Penal Code was registered against the driver of the said truck. As during  investigation the truck could not be traced out, the case was closed.  A Claim  Petition was filed before the Motor Vehicles Accident Claims Tribunal  against the driver, owner and the Insurance Company with which the Tempo  Trax was insured.  The Tribunal upon analyzing the materials brought on  record by the parties, including the First Information Report, arrived at a  finding of fact that the driver of the Tempo Trax was not driving the vehicle  rashly and negligently.  It, therefore, dismissed the claim petition opining: "16.  On the basis of the above discussions, I come to  this conclusion that the applicants on the basis of the  discussions in issue No. 1, have failed to prove that  the accident dated 23rd January, 2001 was caused by  rash and negligent driving of tempo trax No. MP-04- H-5525.   In these circumstances the driver and  insurance company of tempo trax No. MP-04-H-5525  cannot be held responsible for the accident.  As a  result, the present claim petition is dismissed."

3.      In support of its finding, the decision of this Court in Kaushnuma  Begum & Ors. v New India Assurance [2001 ACJ 428 : (2001) 2 SCC 9]  which was relied upon by both the parties was referred to wherein it was  held: "18.   Like any other common law principle, which is  acceptable to our jurisprudence, the rule in Rylands v.  Fletcher, 1861-73 ALL ER 1, can be followed at least  until any other new principle which excels the former  can be evolved, or until legislation provides differently.   Hence, we are disposed to adopt the Rule in claims for  compensation made in respect of motor accidents.

19.     ’No fault liability’ envisaged in section 140 of  the MV Act is distinguishable from the rule of strict  liability. In the former the compensation amount is

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fixed and is payable even if any one of the exceptions  to the rule can be applied.  It is a statutory liability  created without which the claimant should not get any  amount under that count.  Compensation on account of  accident arising from the use of motor vehicles can be  claimed under the common law even without the aid of  a statute.  The provisions of the MV Act permit that  compensation paid under ’no fault liability’ can be  deducted from the final amount awarded by the  Tribunal.  Therefore, these two are resting on two  different premises.  We are, therefore, of the opinion  that even apart from section 140 of the MV Act, a  victim in an accident which occurred while using a  motor vehicle, is entitled to get compensation from a  Tribunal unless any one of the exceptions would apply.   The Tribunal and the High Court have, therefore, gone  into error in divesting the claimants of the  compensation payable to them.

4.      Claimants being aggrieved by and dissatisfied with the said Award  preferred an appeal before the High Court. The High Court principally  relying on the depositions of depositions of Shri R.K. Sharma and Smt.  Premlata Shukla, wherein allegations were made that the tempo trax was  driven in a rash and negligent manner, opined that the First Information  Report having been legally not proved, the driver of the Tempo Trax should  be held to be guilty of driving rashly and negligently.          5.      It is to be noted that in the claim petition itself a reference was made  to the lodging of the First Information Report.   

6.      The learned counsel appearing on behalf of the appellant would  submit that as the respondents themselves relied on the First Information  Report, the High Court could not have ignored the same.  Reliance in this  behalf has been placed on Hukam Singh and Others v Smt. Udham Kaur  [1969 PLR 908].

7.      The learned counsel appearing on behalf of the respondent, on the  other hand, would submit that only because First Information Report was  relied upon for the purpose of proving the accident, the contents thereof ipso  facto cannot be said to have been proved.  In support of the said contention,  reference has been made on Narbada Devi Gupta v Birendra Kumar Jaiswal  and Another [(2003) 8 SCC 745].           8.      It is not known whether the Central Government has yet framed any  scheme in respect of the hit and run cases. We are not, however, concerned  therewith in this case.   Respondent had filed an application under Section  166 of the Motor Vehicles Act, 1988.  It was required to be determined in  accordance with the procedures laid down therefor. It will, however, be  pertinent to refer to Deepal Girishbhai Soni and Ors. v. United India  Insurance Co. Ltd., Baroda [(2004) 5 SCC 385] on this aspect, wherein it  was observed: "The Law Commission furthermore recommended  for laying of a scheme in terms where of the victims  of ’hit and run accident’ could claim compensation  where the identity of the vehicle involved in the  accident was unknown. Yet again, the 199th Law  Commission in its report submitted in 1987 stated  the law as it stood them in the following terms: "the law as it stands present, save the provisions in  chapter VIIA inserted by the Motor Vehicles  (Amendment) Act, 1982, enables the victim or the  dependants of the victim in the event of death to  recover compensation on proof of fault of the person  liable to pay the compensation and which fault

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caused the harm."

9.      Where an accident occurs owing to rash and negligent driving by the  driver of the vehicle, resulting in sufferance of injury or death by any third  party, the driver would be liable to pay compensation therefor.   Owner of  the vehicle in terms of the Act also becomes liable under the 1988 Act. In  the event vehicle is insured, which in the case of a third party, having regard  to sub-section (2) of Section 147 of the Act, is mandatory in character, the  Insurance Company would statutorily be enjoined to indemnify the owner.

10.     The insurer, however, would be liable to re-imburse the insured to the  extent of the damages payable by the owner to the claimants subject of  course to the limit of its liability as  laid down in the Act or the contract of  insurance.   Proof of rashness and negligence on the part of the driver of the  vehicle, is therefore, sine qua non for maintaining an application under  Section 166 of the Act.   

11.     The learned counsel appearing on behalf of the respondent contended  that First Information Report was brought on record for the purpose of  proving the accident and not for fixing the liability on the part of driver of  the vehicle involved therein.

12.     In Narbada Devi (supra) whereupon reliance has been placed, this  Court held that contents of a document are not automatically proved only  because the same is marked as an Exhibit.  There is no dispute with regard to  the said legal proposition.   

13.     However, the factum of an accident could also be proved from the  First Information Report. It is also to be noted that once a part of the  contents of the document is admitted in evidence, the party bringing the  same on record cannot be permitted to turn round and contend that the other  contents contained in the rest part thereof had not been proved.   Both the  parties have relied thereupon.  It was marked as an Exhibit as both the  parties intended to rely upon them. 14.     Once a part of it is relied upon by both the parties, the learned  Tribunal cannot be said to have committed any illegality in relying upon the  other part, irrespective of the contents of the document been proved or not.   If the contents have been proved, the question of reliance thereupon only  upon a part thereof and not upon the rest, on the technical ground that the  same had not been proved in accordance with law, would not arise.

15.     A party objecting to the admissibility of a document must raise its  objection at the appropriate time.   If the objection is not raised and the  document is allowed to be marked and that too at the instance of a party  which had proved the same and wherefor consent of the other party has been  obtained, the former in our opinion cannot be permitted to turn round and  raise a contention that the contents of the documents had not been proved  and, thus, should not be relied upon.  In Hukam Singh (supra),  the law was  correctly been laid down by the Punjab and Haryana High Court stating; "8. Mr. G.C. Mittal, learned counsel for the  respondent contended that Ram Partap had produced  only his former deposition and gave no evidence in  Court which could be considered by the Additional  District Judge.  I am afraid there is no merit in this  contention. The Trial Court had discussed the  evidence of Ram Partap in the light of the report  Exhibit D.1 produced by him. The Additional District  Judge while hearing the appeal could have  commented on that evidence and held it to be  inadmissible if law so permitted.  But he did not at all  have this evidence before his mind. It was not a case  of inadmissible evidence either. No doubt the  procedure adopted by the trial Court in letting in a  certified copy of the previous deposition of Ram  Partap made in the criminal proceedings and allowing

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the same to be proved by Ram Partap himself was not  correct and he should have been examined again in  regard to all that he had stated earlier in the statement  the parties in order to save time did not object to the  previous deposition being proved by Ram Partap  himself who was only cross-examined.  It is not a case  where irrelevant evidence had been let in with the  consent of the parties but the only objection is that the  procedure followed in the matter of giving evidence in  Court was not correct. When the parties themselves  have allowed certain statements to be placed on the  record as a part of their evidence, it is not open to  them to urge later either in the same Court or in a  court of appeal that the evidence produced was  inadmissible. To allow them to do so would indeed be  permitting them both to appropriate and reprobate."

16.     For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.   The Appeal is allowed.  In the  facts and circumstances of this case, however, there shall be no order as to  costs.