RANCHI, India, Oct. 2 -- Jharkhand High Court issued the following order on Sept. 2:
Heard, learned counsel for the parties.
1. The appellant- New India Assurance Company Ltd. is in appeal against the impugned judgment /Award dated 14.08.2013 passed by learned District Judge- 3 rd -cum- MACT, Bokaro in T.M.V. No.64 of 2011.
2. The facts of the case are not in dispute that the deceased (Anmana Mishra) while she was going along with her husband (P.W.1) met with an accident involving a Bolero vehicle bearing Registration No.JH09M -8449 and an Ambassador car bearing Registration No.DL2CG-7486. The deceased sustained fatal injuries and died of it.
3. On the basis of the statement of one Anant Kumar Jha, son-in-law of the deceased, an FIR [Ext.7] being Bokaro (Chas) P.S. Case No.192 of 2011 was registered under Sections 279 / 304(A)/ 337 / 338 /427 IPC against the drivers of both the offending vehicles.
4. The Police after investigation found the case true and submitted charge-sheet [Ext.8] against the Drivers of both the offending vehicles.
5. During trial, the husband of the deceased who was driving the motorcycle at the relevant time of the accident was examined as P.W.1.
6. The learned Tribunal recorded a finding that the accident took place due to rash and negligent driving of the Bolero Jeep bearing Registration No.JH09M -8449 and fixed the liability upon the insurer i.e. the appellant- Insurance Company.
7. The instant Misc. Appeal has been preferred mainly on the ground that it was a case of composite negligence of Bolero as well as the Ambassador car, but the learned Tribunal has completely misdirected itself by holding that the accident took place due to rash and negligent driving by the driver of Bolero Jeep.
8. It is pointed out that the learned Tribunal committed an error of record by stating in the impugned judgment at Para-9 that the Driver of the Ambassador car was neither named in the FIR nor in the charge-sheet and the same will be falsified on bare reading of Exts.7 & 8. It is also argued that the testimony of P.W.1 was in contradiction to the statement of the informant which is the basis of the case.
9. Learned counsel for the Respondent No.5- National Insurance Co. Ltd. has defended the impugned judgment of compensation.
10. Having considered the submissions advanced on behalf of the parties and on perusing the materials on record, this Court finds that the learned Tribunal fell in error, to record the judgment that no allegation was imputed against the driver of the Ambassador in the FIR or in the charge-sheet, which is contrary to the materials on record, where they have been specifically referred to.
11. However, this by itself cannot lead to a contrary finding that it was a case of composite negligence and the Driver of the Ambassador was equally liable for the accident. P.W.1 who was admittedly driving the motorcycle which met with the accident and was also injured in it, has attribute the accident to Bolero and not to the Ambassador car. Law is settled that FIR is not a substantive piece of evidence and, therefore, the FIR cannot be given precedence over the testimony given in the Court.
12. Even if it is accepted that there was some inconsistency between FIR and the testimony of P.W.1, still it cannot be regarded as contradiction because P.W.1 was not the author of FIR, and therefore, he cannot be contradicted with the said statement in terms of Section 145 of the Evidence Act.
13. Accordingly, I do not find any infirmity in the impugned judgment of Award passed by the learned Tribunal.
14. As such, the instant M.A. stands dismissed. Pending I.A., if any, also stands disposed of.
15. The statutory amount deposited at the time of preferring the instant Misc. Appeal shall be remitted to learned Tribunal so as to adjust/ disburse to the claimants against the Awarded amount.
16. It goes without saying that the amount already paid to the claimants shall be deducted from the final compensation amount at the time of satisfaction of the impugned Award.
Disclaimer: Curated by HT Syndication.
