The court clarified that oral evidence can prevail over FIR statements in determining liability and compensation in motor vehicle accident claims.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

Heard, learned counsel for the parties.

1. The claimants have preferred M.A. No.466 of 2015 for enhancement of compensation against the Award dated 27^th March, 2015 passed in Title (M.V.) Suit No.262 of 2013 under Section 166 of the M.V. Act for death of one Naresh Choudhary@ Naresh Pasi in a motor vehicle accident, whereas C.O. No.43 of 2021 has been preferred by the appellant-owner of the offending vehicle against the liability fixed on the owner to pay the compensation amount.

2. It is submitted by the learned counsel for the claimants/ appellants that the judgment/ Award passed by the learned Tribunal is not in accordance with the ratio laid down by Hon’ble the Supreme Court in National Insurance Company Ltd. vs. Pranay Sethi , reported in (2017) 16 SCC 686 as loss of income under the head of Future Prospect has not been considered and further under the conventional head, only Rs.9,500/- has been awarded.

3. It is further argued that the deceased was working as Cook and in the claim application, income of the deceased as Rs.4,500/- per month was made, but the Award has been computed on the basis of monthly income of the deceased as Rs.3,000/-.

C. O. No. 43 of 2021

4. It is argued by learned counsel on behalf of the appellant-owner of the offending vehicle (Tata 407 bearing Registration No.JH10D-6776) that the vehicle was given on hire for carrying goods to the caterer in which the deceased was travelling as a representative of the owner of the goods and, therefore, he will come within the purview of Section 147(1)(b) of the M.V. Act and the insurer will be liable to indemnify the owner as the vehicle was indisputably under insurance cover at the time of accident.

5. It is further submitted on fact that P.W.2 and P.W.3 have specifically stated that it was only the deceased who was travelling with the goods in the offending vehicle at the time of accident, but the learned Tribunal considering the content/ statement made in the FIR (Ext.1) held that 25 to 26 persons were returning to Dhanbad from Katras after completing the catering work on the offending vehicle which met with an accident. The deceased was regarded as gratuitous passenger and the liability was fixed upon the owner. It is submitted that in absence of any contrary oral evidence, it was not logical to the Tribunal to take contrary view on the basis of the FIR which is not a substantive piece of evidence. Reliance is placed on 2021 SCC OnLine SC 849 [National Insurance Company Limited vs. Chamundeshwari and Ors.].

6. It is argued that as per the R.C. Book, two persons were permitted to travel in the said vehicle including the driver and the insurance policy (Ext.X/2) was a comprehensive package policy, therefore the deceased was covered as representing the owner of the goods travelling in the offending vehicle.

7. Learned counsel for the Respondent- Insurance Company has opposed the prayer. It is submitted that so far the appeal for enhancement of compensation is concerned, the monthly income of the deceased was pleaded in the claim application as Rs.4,500/- per month, and the learned Tribunal recorded a finding of fact that the monthly income of the deceased was Rs.3,000/- per month, considering the evidence on record.

8. Further in the Cross-Objection, it is argued that the F.I.R which is the foundational document of criminal case and was recorded on the basis of fardbeyan of Gopal Manjhi, who was one of the co-employees of the deceased has stated that 25 to 26 persons were travelling in the said vehicle. The oral evidence was in contradiction to the evidence as appearing in the F.I.R. After investigation, charge-sheet was also submitted against the driver of the offending vehicle.

9. It has also come in the F.I.R that after the accident, the driver and co-driver fled away from the place of occurrence and, therefore, it goes to show that the deceased was not under the insurance cover and was travelling in the vehicle as a gratuitous p