FAO/487/2012 on 29 December 2023

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 487 of 2012 Reserved on: 29.11.2023 Date of decision: 29.12.2023 ____________________________________________________ Oriental Insurance Company Ltd. …..Appellant Versus Hansa Devi and others ……Respondents ____________________________________________________

Coram

Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting? ____________________________________________________ For the appellant: Mr. P.S. Chandel, Advocate. For respondents No.1 to 4: Mr. G.R. Palsra, Advocate. For respondents No.5 & 6: Ms. Leena Guleria, Advocate. ____________________________________________________ Sushil Kukreja, Judge The present appeal is maintained by the appellant- Oriental Insurance Company (hereinafter referred to as “the appellant”), under Section 30 of the Workman’s Compensation Act, 1923 (for short “the Act”), against the order dated 27.07.2012, passed by the learned Civil Judge (Sr. Division), Mandi, District Mandi, H.P., exercising the power under Workman’s Compensation Act, in W.C. Petition No.12/2006

Whether reporters of Local Papers may be allowed to see the judgment?

(26/2011), whereby compensation of Rs.4,07,700/- alongwith interest @ 12% per annum w.e.f. 13.01.2003 till the realization of the entire award amount, has been awarded in favour of the petitioners (respondents No.1 to 4 herein) and against respondent No.3 (appellant herein).

2. Briefly stated the facts of the case, giving rise to the present appeal, are that the petitioners (respondents No.1 to 4 herein) filed a petition under Section 22 of the Act for grant of compensation, stating therein that the deceased Narayan Singh, who was husband of petitioner No.1, father of petitioners No.2 & 3 and son of petitioner No. 4, was employed as driver by Bhagat Ram Chauhan (respondent No.6 herein) over his tractor bearing registration No. HP-33-5980. On 12.12.2022 when Narayan Singh was doing the agriculture work in the land of Bhagat Ram Chauhan by the aforesaid tractor at place Bari-Gumanu and was leveling the agricultural fields, Harish Kumar (respondent No.5 herein), who was also working as driver over tractor bearing registration No.HP-33-4980, owned by the wife of said Bhagat Ram Chauhan, visited Bari Gamunu and told Narayan Singh that tractor No.HP-33-4980 had got some technical defect at Khad

Kalyana, which was to be brought to a mechanical shop and asked him to take tractor No.HP-33-5980 for towing the aforesaid tractor No.HP-33-4980 to the shop. When the said tractor reached near village Arthi, it collided with the left side of the road due to which Narayan Singh fell down from the tractor, as a result of which, he suffered multiple injuries and was shifted to Zonal Hospital, Mandi, where he succumbed to his injuries. As per the petitioners, the monthly wages of the deceased were Rs.4,000/- and respondent No.6 used to give him Rs.100/- per day extra. The offending vehicle was insured with the appellant (Insurance Company) and the accident took place during the employment of the deceased. Lastly, a prayer had been made to allow the claim petition.

3. Respondents No.1 and 2 (respondents No.5 & 6 herein) filed joint reply to the claim petition, wherein preliminary objection of maintainability of the claim petition was taken. On merits, it was averred that tractor bearing registration No.HP-33- 5980 was owned by respondent No.2, who had employed deceased Narayan Singh as driver. It was denied that the aforesaid tractor was being driven by respondent No.1 at the time

of the accident. It was further averred that at the time of the accident, the deceased was driving the tractor and due to the accident, he sustained injuries and ultimately died during the course of employment. The registration of the FIR was admitted, but its contents were denied. It has also been averred that the offending vehicle was insured with the respondent No.3 (appellant herein), vide policy/cover note No.AMB-C 201091, dated 11.03.2002, which was valid up to 10.03.2003.

4. Respondent No.3-Insurance Company (appellant herein) filed separate reply to the petition, contending therein that there was a breach of terms and conditions of insurance policy as the vehicle was not having valid and effective registration certificate, fitness certificate and the driver was also not holding a valid and effective driving license. It was further averred that the deceased was neither driver over tractor bearing registration No.HP33-5980, nor he was employed as driver by the owner of the vehicle. As per respondent No.3, the deceased had not died during the course of his employment as he was the driver with vehicle No.HP-33-4980, hence, it was not liable to pay any compensation to the petitioners. It was contended that infact

respondent No.1-Harish Kumar was the driver of tractor No.HP- 33-5980 and the deceased was the driver of tractor No.HP-33- 4980 and FIR was also lodged against the actual driver, i.e., Harish Kumar. It was also contended that the deceased had not died during the course of his employment as driver with tractor No.HP-33-5980, however, he was an unauthorized passenger on the tractor in question. The owner of the vehicle, i.e., respondent No.2-Bhagat Ram in connivance with the petitioners was trying to help them by filing reply against the actual facts.

5. The petitioners filed rejoinder to the replies filed by the respondents, wherein averments made in the claim petition were reiterated.

6. The learned Commissioner below framed the following issues on 17.04.2007:- “1. Whether the deceased was workman with respondent No.2 within the meaning of the Act? OPP

2. Whether the accident arose out in the course of employment of deceased? OPP

3. Whether the petitioners are entitled to receive compensation from respondents, to what amount? OPP

4. Whether the vehicle was insured with respondent No. 3 at the relevant time? OPR-3

5. Whether the deceased was traveling as gratuitous passenger at the time of accident? OPR-3

6. Relief.” After deciding issues No.1 to 3 in favour of the petitioners and issues No.4 & 5 against respondent No.3, the learned Commissioner allowed the petition, thereby the petitioners were held entitled to compensation of Rs.4,07,700/- and apart from this, respondent No.3/Insurance Company was directed to pay interest @ 12% per annum w.e.f. 13.01.2003 till the realization of the entire awarded amount. Respondent No.3 was directed to deposit the awarded amount alongwith interest within 30 days and the insurance company was also held liable to pay funeral expenses to the tune of Rs.5,000/- to petitioner No.4.

7. Feeling dissatisfied, the appellant-Insurance Company preferred the instant appeal under Section 30 of the Workmen Compensation Act, 1923.

8. On 29.11.2023, the appeal was admitted for hearing on the following substantial questions of law:- “1. Whether the liability for payment of compensation and interest could be foisted upon the appellant/Insurance Company when the deceased was neither the driver on insured vehicle nor he has died during the course of employment on the

said vehicle on the date of accident?

2. Whether the liability could be fastened upon the appellant/Insurance Company when there is admission on the part of the applicants to the effect that deceased was travelling in the tractor along with its driver against the seating capacity of one only?”

9. I have heard learned counsel for the appellant as well as the learned counsel for the respondents No.1 to 4 and learned counsel for the respondents 5 & 6 and also carefully examined the entire record.

10. Learned counsel for the appellant-Insurance Company contended that the deceased was neither the driver on the offending vehicle, nor he had died during the course of employment, rather he was travelling on the tractor in question alongwith its driver as a gratuitous passenger, therefore, the insurance company could not have been held liable to indemnify the insured.

11. It is not in dispute that deceased Narayan Singh had died in the accident on 12.12.2002 and the vehicle in question was insured with the appellant-insurance company. The case of the appellant-insurance company is that respondent No.5 Harish Kumar was the driver of tractor bearing registration No. HP-33-

5980, whereas, deceased Narayan Singh was employed as driver over tractor bearing registration No.HP-33-4980 and the FIR was also lodged against the actual driver of tractor bearing registration No.HP-33-5980, i.e. respondent No.5. On the other hand, the case of the petitioners is that deceased Narayan Singh was driving the offending tractor at the time of the accident, who died during the course of employment and the FIR was lodged on the statement of one Nek Ram (brother of deceased Narayan Singh) under some mistaken belief as he was not present on the spot at the time of the accident.

12. Learned counsel for the appellant-Insurance Company has laid a great deal of stress on the FIR Ext. PW1/C , which had been got recorded by PW- 2 Nek Ram in the hospital. It cannot be overemphasized that First Information Report (FIR) is not a substantive piece of evidence. Any statement made by a person, including the FIR, recorded before the police is not on oath and as such, it cannot be kept at the same pedestal as the deposition made by a witness before a Court of law. At the outset, it needs to be reiterated that the accident claim cases stand on a different footing and cannot be kept at par with the criminal cases.

In accident claim cases, the claimants are required to prove their case on the touchstone of preponderance of probabilities while in criminal cases, the case of the prosecution is to be proved beyond reasonable doubt. The legal position regarding the evidentiary value of a First Information Report was stated and reiterated by the Apex Court in the case of Baldev Singh & another Vs. State of Punjab, AIR 1996 SC 372. In paragraph 10 of the said judgment, it has been observed as under:- “10……………….State briefly, FIR is not a substantive piece of evidence, it is only relevant in judging the veracity of prosecution case and the value to be attached to it depends on the facts of each case. Only the essential or broad picture need be stated in the FIR and all minute details need not be mentioned therein. It is not a verbatim summary of the prosecution case. It need not contain details of the occurrence as if it were an "encyclopaedia" of the occurrence. It may not be even necessary to catalogue the overact acts therein. Non mentioning of some facts or vague reference to some others are not fatal…………."

13. This has also been further reiterated by the Apex Court in the case of C. Magesh and others Vs. State of Karnataka, (2010) 5 SCC 645. In para 24 of the said judgment, it has been observed as under:- “24. It is settled law on the point that FIR is not a substantive piece of evidence. However the FIR cannot be given a complete go-by since it can be used to corroborate the evidence of the person lodging the same. In the judgment of this Court titled Baldev Singh vs. State of Punjab reported in (1990) 4 SCC 692, it was held that as

far as the evidentiary value of the FIR is concerned it can only be used to for corroboration of its maker, but the FIR can not be used as substantial evidence or corroborating a statement of third party."

14. In a recent judgment of the Apex Court in the case of Anita Sharma and Others Vs. New India Assurance Company Limited and another, (2021) 1 SCC 171, in paragraphs 21 & 22 held as follows:- "21.Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true.

22. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz wherein this Court reiterated that: "7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt."

15. Adverting to the case in hand, perusal of the FIR Ext. PW1/C shows that complainant Nek Ram was not present on the spot at the time of the accident. He had given his statement under Section 154 Cr. PC on the basis of hearsay evidence.

While appearing in the witness box as PW-2, Nek Ram categorically deposed that on 12.12.2002 at about 11:00 p.m., he received a telephonic information to the effect that his brother Narayan Singh met with an accident, who was taken to the hospital and thereafter on reaching the hospital, he came to know that due to the injuries in the accident, his brother Narayan Singh had died. He also deposed that deceased Narayan Singh was employed as driver over tractor bearing registration No.HP- 33-5980 by respondent No.2 Bhagat Ram Chauhan and on the aforesaid day of the accident, deceased Narayan Singh was doing the work of levelling the fields of respondent No.2. He further deposed that when he reached the hospital, the police was already there and they did not record his statement and only his signatures were obtained. He had not made any statement to the police that the tractor was being driven by Harish Kumar. During cross-examination, he admitted that a criminal case was registered against respondent No.5 and he was acquitted by the Criminal Court. He also admitted that the accident had not taken place in his presence. He denied that the deceased was employed as driver over tractor bearing registration No.HP-33-

4980, which was owned by the wife of respondent No.2. He volunteered that at the time of the accident, the deceased was driving tractor No.HP-33-5980. Bhagat Ram Chauhan, the owner of the tractor (respondent No.2), while appearing in the witnesses box as RW-1, filed his affidavit Ext.RW1/A by way of examination- in-chief, wherein he categorically deposed that he had employed deceased Narayan Singh as driver over tractor bearing registration No.HP-33-5980. He also deposed that on the date of accident, deceased Narayan Singh was doing the agriculture work by the tractor at place Bari Gumanu and when the deceased was lavelling his fields with the tractor, Harish Kumar (respondent No.1), who was also employed as driver in another tractor No.HP-33-4980, visited Bari Gumanu and told the deceased that the another tractor, which was belonging to his (respondent No.2) wife, got some mechanical defect and the same was to be brought to the mechanic shop by towing. He further deposed that the deceased started to Khad Kalyan alongwith Harish Kumar and on the way, the said tractor met with an accident and the deceased suffered multiple injuries and died due to the said accident. He was cross-examined at length, but nothing

favourable could be elicited from his cross-examination.

16. Therefore, in view of the evidence led on record, it has become clear that the deceased was driving tractor bearing registration No.HP-33-5980 at the time of the accident and he died during the course of employment. No evidence to the contrary has been led by the appellant-Insurance Company and it had failed to discharge its burden that the deceased was travelling over the offending tractor as a gratuitous passenger. In the absence of any satisfactory evidence on record, the reliance placed upon by insurer on the FIR Ext. PW1/C cannot be a determinative factor or actual proof of the occurrence of the accident, particularly in view of the fact that Nek Ram, who was the author of the FIR, categorically deposed that the accident had not taken place in his presence and he had lodged the FIR on the basis of the information received by him on telephone. Moreover, the owner of the tractor Bhagat Ram categorically deposed that on the date of the accident, deceased Narayan Singh was driving the offending tractor and due to the multiple injuries suffered by him, he died in the accident.

17. Therefore, in view of the entire evidence, it cannot be

said that the deceased was travelling over the tractor in question as a gratuitous passenger, rather it has been proved on record that he was driving the tractor bearing registration No.HP-33- 5980 at the time of the accident and had died during the course of his employment on the said vehicle.

18. In view of what has been discussed hereinabove, the substantial questions of law are answered accordingly and the appeal, which sans merits, deserves dismissal and is dismissed accordingly.

( Sushil Kukreja ) Judge December 29, 2023 (VH)