Breach of terms and condition of the insurance policy is a matter between the insurer and the insured, and the Insurance Company cannot be completely absolved of its liability.

JUDGMENT :

1. Insurance Company has preferred appeal against the award of compensation in M.V. Claim Case No 58 of 2005 by the District Judge-Cum-MACT Palamau at Daltonganj under Section 166 of the M.V. Act.

2. Claimants are the parents who lost their young son aged 24 years in a motor vehicle accident while returning home from Delhi where he was working in Metro Railways. The accident took place while he was on way from railway station on a bus to his native place. The claimants have attributed the accident to rash and negligent driving by the driver of the bus.

3. A compensation of Rs.1,20,000/- has been awarded under Section 166 of the Motor Vehicles Act, 1988 (hereinafter called the M.V. Act).

4. The appeal has been surprisingly preferred on the ground that the Tribunal committed an error by treating the claim application as a claim under Section 163A. The further ground of appeal is that the deceased was travelling at the roof top at the time of accident and the accident took place when he fell down and came under the rear wheel of the bus.

5. The main point for determination in the present appeal is whether the deceased was travelling on the roof top? And whether the Insurance Company was not liable to pay the compensation amount on account of breach of the terms and conditions of the insurance policy under Section 149(2) of the M.V. Act?

6. It is not in dispute that the deceased met with the fatal accident while he was travelling by the bus. On Issue No. III the learned Tribunal has held that the accident took place due to rash and negligent driving by the driver of the bus. Altogether four witnesses have been examined in this case, but none have claimed themselves to be the eye witness to the accident and so their testimony on the manner of accident cannot be accepted. Hariharganj PS case no.120/04 (Ext1) was registered on the basis of the statement of Bira Yadav who has stated that he along with the deceased were travelling on the roof top of the vehicle which was being driven rashly and negligently by the driver of the vehicle. The bus took sharp turn on the way, as a result his nephew fell down and came under its rear wheel. The police on investigation found the case true and submitted charge-sheet against the driver of the bus. In the absence of any eye witness account of the accident, the question is whether the FIR can be considered to be evidence on the manner of accident?

7. The nature of enquiry in a motor accident claim tribunal is summary in nature and principles of Evidence Act and CPC do not apply in its absolute rigidity. Bira Yadav the informant of the case, who was the uncle of the deceased was with the deceased at the time of accident could have thrown some light on the manner of accident, but he too has not been examined. In the absence of any other evidence, FIR (Ext 1) which has been relied upon by the claimants themselves can be considered to construct the events that led to the accident. It has been held by Hon’ble the Supreme Court in National Insurance Co. Ltd. v. Rattani, (2009) 2 SCC 75 : (2009) 1 SCC (Civ) 398 :

“8. We are not oblivious of the fact that ordinarily an allegation made in the first information report 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”.

From the plain reading of the FIR it is manifest that at the relevant time of the accident the deceased on the roof top of the bus which was being driven rashly and negligently. The proximate cause of the accident was not that the deceased was travelling on the roof of the vehicle, but that it was being driven rashly and negligently. It cannot be said to be a case of contributory negligence on the part of the deceased. However, permitting the passenger to travel on the roof top was definitely a breach of term and co