These appeals can be conveniently disposed off by this common judgment. They have been filed by original respondent no.1, the owner of the vehicle, and arise from claim petitions nos.107/2003, 30/2006 and 29/2006. The claim petitions were filed to recover compensation on account of the deaths of Selwyn Pereira, Sunil Redkar and Dharmendra Hirve, which took place at about 7.20 p.m. on 18/09/2000 at Basiratganj within the jurisdiction of Ajgain Police Station, Unnao, Uttar Pradesh, while they were proceeding from Kanpur to Lucknow in a Tata Sumo vehicle bearing No.UP-78-S-7983 and involving the bus of the appellant (i.e. respondent no.1 in the said claim petitions) bearing No.UP-42-B-8246. The said deceased persons along with one Santan Carvalho had completed a musical show at I.I.T. Kanpur, having been part of the musical group of Remo Fernandes known as Microwave Poppadums. Except for the said Carvalho all others died in the said accident including the driver of the said Tata Sumo.
52. The claim petitions were filed with the allegation that the said accident had taken place on account of the rash and negligent driving of the said bus by respondent no.2 Shri Deen Dayal belonging to respondent no.1 UP State Road Ways Transport Corporation (the appellant herein).
3. As there were no eye witnesses to the said accident, the claimants had produced in support of their claim petitions certified copies of the FIR lodged by the Police Inspector of the police station concerned, post mortem reports, etc. The learned MACT (Motor Accident Claims Tribunal), as regards issue no.1, came to the conclusion that the accident had taken place due to the rash and negligent driving of the bus by respondent no.2, the said Shri Deen Dayal. As regards issue no.5, the learned MACT came to the conclusion that the petition was not bad for non-joinder of the driver, owner and insurer of the said Tata Sumo. The learned MACT referred to the evidence of the claimant/s and observed that the claimant/s had stated that they had come to know from the FIR and other documents that the accident had occurred due to the rash and negligent driving of the said bus by respondent no.2 and the said FIR which was on record at Exhibit-18 also stated that the 6driver of the said passenger bus had driven the same in a rash and negligent manner and dangerously and gave dash to the Tata Sumo and had caused the death of three persons. The learned MACT then observed that respondent no.2, who was the driver of the said passenger bus, and who had contested the petition, had not entered the witness box when it was his duty to have entered the witness box and give evidence regarding the accident as he was the only witness who had remained and the others who were occupying the Tata Sumo had expired. The learned MACT observed that respondent no.2 had taken the plea that the driver of the Tata Sumo had driven the same rashly and negligently and caused the accident, but did not examine himself or any other witness to prove his case and, therefore, adverse inference was bound to be drawn against respondent no.2.
4. At the hearing of these appeals, Shri Bras De Sa, the learned Counsel appearing on behalf of the appellant/respondent no.1 submits that the FIR was not proved by examining the Police Inspector, who had lodged the same and, therefore, there was no evidence produced by the claimants before the learned MACT to show that respondent no.2 had driven the bus in a rash and negligent manner. In support of his submission Shri Bras De Sa 7has placed reliance on the case of Miyana Hasan Abdulla and Anr. V/s. State of Gujarat (AIR 1962 Gujarat 214) and Sk. Kalu V/s. Kumar Bohera and Anr. (AIR 1997 Orissa (197).
5. Shri Bhobe, the learned Counsel appearing on behalf of the claimants in two of the claim petitions has submitted that the FIR was produced in the claim petition without any objection from the respondents. Learned Counsel submits that the FIR was an admitted document without any objection from the respondents and, therefore, it was not required of the claimants to have proved the same by examining its author. Learned Counsel further submits that assuming the contents of the said FIR are not proved, the fact that it was lodged against respondent no.2 would indicate that he had driven the bus in a rash and negligent manner.
6. In the case of Miyana Hasan Abdulla and Anr. (supra) there was a criminal trial held and two accused were convicted under Section 302 read with 34 IPC, and, the question in the said case was whether Exhibit-7 or Exhibit-51 should have been treated as an FIR, both having been lodged by one Jabubha. The signatures of Jabubha on both the exhibits were proved but the handwriting on Exhibit 7 nor Exhibit 51 were proved. PSI Jadeja had written 8Exhibit 51, but was not examined by the prosecution as he was not available as he had gone to Calcutta. In this context, the learned Division Bench observed that the writing of PSI Jadeja could have been proved in many ways, and one of the ways was to examine someone who knew his handwriting. The handwriting on Exhibit 7 was not proved. It was contended before the learned Division Bench that the signature of PSI Jadeja on Exhibit 51 was proved and it was observed by the learned Division Bench that it was not the case of the prosecution that Jadeja had signed the document as the signatory to the document. What Section 67 of the Evidence Act refers to is the signature of a person who has signed the document. Section 67 does not refer to the signature of a witness who countersigns a document as a person who was present at the time the document was signed by another person. What Section 67 of the Evidence Act requires is that the signature of the person who is alleged to have signed or made the document must be proved. The Division Bench observed that this was not the case where Jadeja and another person are joint signatories of the document. The signature of Jadeja was more or less a signature of a person who signed as before me. It was contended that Dy.S.P. Jethva had proved the signature of Jadeja and that the Dy.S.P. Jethva had not proved the handwriting on Exhibit 7 or 51 and, therefore, the 9Division Bench concluded that Exhibit 7 and 51 were not proved in the manner provided by Section 67 of the Evidence Act. The Division Bench further held that there can be only one complaint of a complainant and only one complaint can be used to corroborate evidence of the complainant. It is only that complaint which is reduced to writing under Section 154 of Criminal Procedure Code, that can be used for the purpose of corroboration. If the police officer in charge of the police station records the whole complaint and subsequently enters the whole statement in the prescribed book, the entry would not be a complaint, because what is to be entered in the prescribed book is to be done after the complaint has been reduced to writing. The first stage is to reduce the complaint to writing and the second stage is to enter the substance of the complaint in the prescribed book. Even if the whole complaint is entered in the prescribed book, that would not become a complaint. Exhibit 51 cannot be regarded as a complaint reduced to writing under Section 154, Criminal Procedure Code, even though in one of the columns the whole statement of the complainant has been entered. It is only Exhibit 7 which can be recorded as the complaint. But, unfortunately, Exhibit 7 has not been proved in the manner required by Section 67 of the Evidence Act. Ultimately, the appeals filed were dismissed.
7. In the case of Sk. Kalu V/s. Kumar Bohera and Anr. (AIR 1997 Orissa 197) it appears that the Insurance Company had produced the FIR and the certified copy of the charge sheet as well as some statements from the relevant Case Diary and the learned Single Judge held that the statements made in the FIR as well as in the Case Diary cannot be utilised as substantive evidence even before the Claims Tribunal for the purpose of finding out about the manner of accident though such statement can be utilised for the purpose of contradicting the witnesses or possibly corroborating them in a claim case. The learned Single Judge further observed that in that case, the FIR was lodged by PW3, who had not seen the accident and the statements of other persons in the Case Diary who were not examined as witnesses in the claim case could not be utilised for any purpose whatsoever.
8. In the cases at hand, the fact situation is quite different. In my view, the observations of the Division Bench in the case of Miyana Hasan Abdulla and Anr. (supra) in a case of a criminal trial would not be applicable to the facts of the case at hand where the standard of proof is much lower. From the case of Sk. Kalu (supra) it is not possible to find out whether the FIR and the certified copy of the charge sheet and other statements from the Case Diary which were marked as Exhibit A,B & C were taken on record with or without any objection from the opposite party, but nevertheless and with respect, I beg to disagree with the view taken by the learned Single Judge. In the case at hand, a certified copy of the FIR was produced which is a public document without any objection from the respondents in the claim petition. Section 77 of the Evidence Act provides that certified copies may be produced in proof of contents of the public documents. In cases such as these, an objection should have been taken when the document itself was tendered in evidence and once the document was admitted in evidence and marked as an Exhibit, the objection that it should not have been admitted in evidence or that the mode adopted in proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit and this principle is based on a rule of fair play. Had the respondents in claim petitions objected to the said FIR being produced then the claimants would have been compelled to call the author of the said document or produce any other evidence to support their claim of rashness or negligence on the part of the said respondents. Failure to raise a prompt and timely objection amounts to waiver of the necessity of insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence and therefore it is impermissible for the appellant now to contend that the document was required to be proved by examining the Investigating Officer. The document i.e. the FIR was prima facie evidence that the accident had taken place on account of the negligence of the respondent no.2, the driver of respondent no.1, in the said claim petitions and, therefore, it was for the respondent no.2 to rebut the said evidence by some other evidence including his/their own. The respondents in the claim petitions gave no evidence whatsoever and, particularly, respondent no.2, the driver and, therefore, it was a fit case to draw adverse inference, against the respondents as was done by the learned MACT. [See R.V.E.V. Gounder V/s. A.V. and V.P. Temple and Anr., 2003 AIR SCW 536].
9. The next submission of Shri Bras De Sa is that the claimants had not made the driver, owner and insurer of the Tata Sumo as parties to the petition. Shri Bhobe has submitted that the claimants did not make them as parties at their own risk as the claimants were fully aware that the accident had taken place on account of rashness and negligence of the driver of the bus. It is to be noted that the claimants had not filed the claim petitions with allegations that the accident was caused due to rash and negligent driving of the said Tata Sumo. The plea taken by respondents which formed subject matter of issue no.5 has been answered by the learned MACT and, in my view rightly, observing that the respondents in the claim petitions had not produced any defence evidence to prove that the driver of the Tata Sumo was rash and negligent in driving or that the accident had taken place on account of the negligence of the said driver who also had died in the accident. The learned MACT observed and in my view rightly, that the claimants had succeeded in proving that the accident had taken place on account of rash and negligent driving of passenger bus of respondent no.1 and, therefore, they had no reason to join the owner and insurer of Tata Sumo as parties to the claim petitions.
10. For reasons aforesaid, I find there is no merit in these appeals and consequently the same are hereby dismissed. N.A. BRITTO, J. NH/-
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