The court emphasized that FIRs are not substantive evidence and must be corroborated by eyewitness accounts, while also highlighting the need for appropriate compensation for child victims based on established guidelines.

JUDGMENT :

1. The present appeal has been raised by the Insurance Company challenging the judgment and order dated 21.09.2004, passed by the Motor Accident Claims Tribunal (Aux.), Surendranagar in MACP No.606 of 1994 on the ground of negligence as well as quantum. It is a case of minor claimant.

2. The facts as could be culled out from the impugned judgment are that the applicants of MACP No.606 of 1994 and MACP No.605 of 1994 i.e. son and mother were travelling towards their village Khamblav from Limbadi in a passenger rickshaw bearing No.GJ-13-T-011, on 29.04.1994, at about 8:30 in the evening, when they reached Panshina Road between village Untadi and Chocky on Limbdi, a Tractor bearing No.GJ-13-1201 came from the opposite direction, and it is stated that it collided with each other. As a result of the accident, both the applicants sustained grievous injuries. The rickshaw was insured with the present appellant and the Tractor was insured with M/s. Oriental Insurance Co. Ltd.

3. Learned advocate Ms. Kirti S. Pathak for the Insurance Company stated that the accident was due to sole negligence of the Tractor driver, which was clearly evident from the copy of FIR. Ms. Pathak stated that the learned Tribunal has attributed 60% negligence to the tractor driver, while 40% negligence has been attributed to rickshaw driver, which is contrary to the evidence on record.

3.1 Advocate Ms. Pathak submitted that the FIR, which came to be lodged after the accident, clearly reveals that the tractor came from the opposite direction and on the wrong side dashed the rickshaw.

3.2 Ms. Pathak further stated that the learned Tribunal erred in coming to the conclusion of composite negligence of drivers of both the vehicles based on the panchnama and the statement of claimant in the cross examination to observe that both the vehicles were driven fast. Ms. Pathak stated that the driver of the Tractor has not stepped into the witness box, and, therefore an adverse inference ought to have been drawn against him.

4. Learned advocate Mr. Maulik Shelat while relying upon the evidence recorded before the Tribunal of the claimant eye witness and relying on the judgment of this High Court in New India Assurance Co. Ltd. Vs. Siraz Fatehsinh Mansoori & Ors., reported in 2023 ACJ 1319, and judgment in case of National Insurance Co. Ltd. Vs. Chamundeswari and others, reported in 2021 ACJ 2558, submitted that the evidence, which has been recorded before the Tribunal during the course of the trial has to be given more weightage, and, hence, the Tribunal has rightly considered the statement of eye witness the claimant, and has come to the right conclusion in deciding the negligence aspect.

5. The claimants of MACP No.606 of 1994 and MACP No.605 of 1994, both are mother and son, who were travelling in the passenger rickshaw and as per the evidence of the mother, she had given the complaint Exh.-46, before the police at Limbdi Hospital. In the FIR she has stated that the accident has occurred because of negligence of the driver of Tractor. The FIR was registered at 10.15 hours at night and in accordance to the record next date i.e. on 30.04.1994, at about 7 to 7.30, the panchnama was drawn, which had come on record at Exh.47.

5.1 The Division Bench of Madhya Pradesh High Court in the case of Dhanwanti and Others Vs. Kulwant Singh and Ors., reported in 1994 ACJ 708, had observed that F.I.R. is not a substantive piece of evidence; it can be used only for the purposes of corroboration or contradiction of the maker only. In paragraph no.10 of the said case, it has been noted as under:

“10. Coming to the other contention that the deceased was travelling as a passenger and, therefore, the Insurance Company was not liable to pay any compensation, it has also no merit. True, the F.I.R. (Ex. D/2-C) and the statement of the Investigating Officer gives a version which support the case of the Insurance Company, but even assuming that the F.I.R. is a public document, but it is the rule