reliefs.

3. The Opposite Party appeared before the District Forum and in resisting the Complaint denied all the allegations against it. It was contended by the Opposite Party that on verification of documents, it was revealed that according to the Police complaint, the vehicle of the complainant was being driven by one Hathubha Kalaji Sodha. However, the Complainant had failed to produce the Driving License of Hathubha Kalaji Sodha despite several reminders. Hence, the claim of the Complainant was repudiated vide letter dated 16.02.2012. According to the final Survey Report, the vehicle was in total loss as opined by the surveyor. But, as payment cannot be made to the complainant as per norms for total loss, therefore, the claim was repudiated. Hence, the Opposite Party contended that it has not been deficient in service.

4. The Ld. District Forum vide its order dated 08.08.2013 observed that the main contention of the Complainant was that F.I.R. was lodged by Smt. Kanuba Mahendrasinh Sodha, however, as she had no right information about who was driving vehicle at the time of accident, she inadvertently mentioned the name of Hathubha Kalaji Sodha as driver, although the vehicle was being driven by one Anvarbhai Manjothi at the time of the accident. Hence, after filing the Police complaint, an Application along with an Affidavit was given at the Police Station to modify the original complaint with a request to replace the name of Hathubha Kalaji Sodha with that of Anvarbhai Manjothi in the Police complaint because by mistake, the name of driver had wrongly been mentioned. Consequently, the main contention of the Insurance Company was that it was declared in the F.I.R. that at the time of accident, the vehicle was being driven by Hathubha Kalaji Sodha, and, as he had no valid and effective Driving License, the name of the driver had been changed to Anvar Manjothi later. Hence, it was contended by the Opposite Party that at the time of the accident, vehicle was being driven by Hathubha Kalaji Sodha, and he was given the vehicle for driving even without a Driving License. Hence, it was further averred that the Complainant had committed a breach of main condition of the Policy, on account of which, the Insurance Company was not liable to pay the claim.

5. The Ld. District Forum while allowing the Complaint of the Complainant held that-

"…According to our opinion, as F.I.R. itself is not substantive evidence, only on the fact that in F.I.R., name of driver is mentioned as Hathubha Kalaji Sodha, it cannot be believed that at the time of accident the vehicle was driven by Hathubha Kalaji Sodha and Anwar Kasam Manjothi was not driving vehicle. Hence insurance company should have to prove before us that at the time of accident the vehicle was driven by Hathubha Kalaji Sodha and Anwar Kasam Manjothi was not driving vehicle. No such reliable evidence has been produced by insurance company. Hence, according to our opinion complainant has proved through affidavit that at the time of accident this vehicle was driven by Anwar Kasam Manjothi and his driving license was produced before insurance company. However by demanding license of Hathubha Kalaji Sodha and by repudiating the claim for that reason insurance company has shown deficiency in service…" Therefore, the District Forum ordered the Opponent to pay Rs.6,52,525/- according to Insured Declared Value with interest @ 9% from 16.02.2012 and Rs.3,000/- as expenses to the Complainant.

6. Aggrieved by the above order, First Appeal bearing Comp. No. 2009/2013 was filed by Opposite Party (Appellant) against the Complainant/Petitioner before the State Consumer

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Disputes Redressal Commission, Gujarat State, Ahemedabad.

7. The Ld. State Commission vide its impugned Order dated 16.10.2019 allowed the Appeal while setting aside the Order of the District Forum by observing inter-alia -

"…Under the circumstances when there is a mention that vehicle driver was Shri Shri Hakubha (sic. Hatubha) Kalaji Sodha in First Information Report by Kanuba Mahendrasinh Sodha, a person travelling in the vehicle and Spot Panchnama and Charge Sheet and Criminal case there is no reason for not believing above fact of the record. Under the circumstances amendment suggested by documents, letters can not be considered acceptable. Further it cannot be ruled out that subsequent amendment may be after thought. Thus it is clearly established from the documents on record such as FIR, Spot Panchnama, Copy of Chargesheet and proceedings of Criminal case that Shri Hakubha (sic. Hatubha) Kalaji Sodha was driving the vehicle at the time of accident…The order passed by the Forum on the basis of subsequent suggested amendment and affidavit is erroneous… At this stage it is necessary to mention that the Complainant has to prove his case beyond doubt. Many persons might be injured in accident. Their police statements must be there. But the Complainant has not produced the same as supporting evidence. This fact also goes against the Complainant…Appeal of the Appellant is hereby is allowed."

8. Hence, the present Revision Petition has been filed by the Petitioner/ Complainant against the above mentioned impugned order of the Ld. State Commission on the following grounds/ arguments:

That the impugned order is per se illegal, improper and perverse.a. That the alleged Repudiation Letter dated 16.02.2012 is a suspect document as it was never sent by the Respondent to the Petitioner. The said has emerged for the first time only before the District Forum.

b.

That Anwar Kasam Manjothi was driving the vehicle and not Hathuba K. Sodha which is supported by various documents filed by the Petitioner whereas the Respondent has not filed a single document or led any independent evidence in rebuttal to disprove the evidence of Petitioner.

c.

That the contents of FIR cannot be relied upon if the person lodging it has not been examined. A statement recorded in FIR cannot be raised to a higher pedestal than a statement on oath in a court of law. The contents of FIR cannot be treated as substantive evidence.

d.

That the State Commission passed the impugned order without referring to the judgements about evidentiary value of (1) FIR, (2) Panchnama, (3) Depositions before Criminal Court and (4) Judgement of criminal court, Oral Evidences on oath, documentary evidences and without considering the relevant facts pleaded & proved by the petitioner.

e.

The Ld. State Commission erred in basing its findings on documents whereas it should have based its findings on unrebutted oral evidence.

f.

That when the notice is not replied or complied with it is important circumstances supporting the version of the party who has sent the notice.

g.

That the State Commission failed to appreciate that in MACP No. 335/2011 of MACT, Bhuj-Kachchh filed by legal representative of the deceased Smt. Gorbai Kalaji Sodha h.

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Hatubha Kalaji Sodha, Shri Anwarbhai Manjothi was impleaded as the driver of the Jeep Car. The Tribunal had rejected the contentions of Respondent herein and awarded Rs.1,24,500/- together with cost and interest. The respondent herein without filing an appeal had deposited the awarded amount.

Hence, the present Revision Petition has been preferred by the Petitioner.

9. Heard the Ld. Counsels for Parties. Perused the material available on record.

10. The complaint was allowed by the District Forum since it was convinced that the insured vehicle at the relevant time, was being driven by one Anwar Kayan Manjothi and not by Hatuba Kalaji Sodha as was mentioned in the original FIR. The State Commission took a different view and went by the contents of the FIR including name of the driver at the relevant time, as was mentioned therein. The State Commission was also not convinced that such name had been mentioned by the passenger travelling in the car namely Smt. Kanuba Mahendrasinh Sodha who was herself seriously injured in the accident and subsequently submitted an Affidavit stating that having being in a bad physical and mental condition at the time of making the Police complaint, she by mistake had mentioned the name of Shri Hathuba Kalaji Sodha as being the driver. But in the view of the State Commission, such subsequent amendment 'could be an after-thought'. The moot point to be considered at this stage, therefore, is whether a total reliance on the statement in the original FIR, which were subsequently retracted from by the Complainant- Smt. Kanuba Mahendrasinh Sodha in her subsequent Affidavit, could alone be accepted at face value for the purpose of finally deciding the controversy, or the subsequent corrective statement given by her, and proceedings of other judicial and quasi-judicial Fora arising out of the same accident should have been given any credit.

11. Both sides have cited various judicial pronouncements to support their respective contentions. From the side of Respondent, the first and foremost reliance is on a decision of this Commission in "Rakesh Pratap Singh Vs. Oriental Insurance Company & Anr., 2017 SCC Online NCDRC 1322"; in which the claim of the insured was dismissed by this Commission in view of the fact that the vehicle involved in the accident was being driven by the person, who did not possess a valid Driving Licence.

12. Again, in "Oriental Insurance Co. Ltd. Vs. Valsa George, 2012 SCC Online NCDRC 561"; the claim of the insured was dismissed by this Commission in view of the fact that on the date of accident, the vehicle neither had a fitness certificate nor did the person driving the vehicle, at the relevant time, possessed a valid and effective Driving License to drive the same, which required a special endorsement by competent Authority.

13. The last reliance from the Insurance Company is on a decision of Hon'ble Supreme Court in "Dr. Anoop Kumar Bhattacharya and Anr. Vs. National Insurance Co. Ltd., 2021 SCC Online AII 871". The emphasis in this regard from the side of the Insurance Company is on the fact that contents of a FIR should not be ignored in coming to a final decision. The relevant portion of this decision of the Apex Court are set out as below-

"29. We may now revert to the original question whether Tribunal was correct in altogether excluding from evidence the documents such as the FIR, the site plan and

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the charge sheet, which form part of the police record.

30. We have no doubt in our mind that the answer to the aforesaid question must be a resounding "No". The Tribunal opted to ignore the FIR, the charge sheet and the site plan on the ground that they do not establish either that the driver of the offending truck was involved in the accident or that he was guilty of rash and negligent driving. In our opinion, the Tribunal would have been correct had the standard of proof in claim proceedings been that of beyond reasonable doubt as is the case with criminal proceedings. Even in a criminal proceedings, these documents may be considered to corroborate the evidence led in the court and not to be completely disregarded or ignored. In any case, corroborative value of the police record cannot be ignored completely though decision may not be based solely upon them. Moreover, the standard of proof in the claim proceedings is not that of proof beyond reasonable doubt but that of preponderance of probabilities. The Tribunal on assessment of evidence before it had to satisfy itself that it was more likely than not that the events as alleged in the claim petition had transpired. To our mind, the documents such as the FIR, the site map and the charge-sheet, which form part of the police record, even though they do not establish the occurrence when considered holistically and prudently could help draw an informed and intelligent inference as to the degree of probability which lends itself to the case set up by a claimant. Was the FIR promptly lodged or was it lodged after an undue delay? Does the site plan conform to the recital contained in the FIR? Do injuries sustained corroborate the recital contained in the FIR. Does the charge sheet bolster the allegations contained in the FIR? These are the factors which when considered fairly and prudently could help to assess if the case set up by the claimants was more probable or not. As such, we consider it an error to altogether ignore the said documents on the ground that they were not conclusive proof of the occurrence more so since that is not the goal of claim proceedings in the first place.

31. We may also refer to the judgment of the Hon'ble Supreme Court in "Mangla Ram V. Oriental Insurance Company, reported in (2018) 5 SCC 656, wherein a somewhat similar factual situation arose. The claim proceedings arising out of an accident between a motorcycle and a jeep in which the rider of the motorcycle sustained severe injuries, leading to the amputation of his right leg below the knee, came to be instituted before the tribunal. Despite disbelieving the oral evidence adduced by the witnesses examined by the claimant, the tribunal eventually ruled in favour of the claimant placing reliance on the FIR and the charge sheet filed by the police and proceeded to award compensation to the claimant. The matter, thereafter, reached the Rajasthan High Court. The High Court did not concur, taking the view that the tribunal could not have ruled in favour of the claimant by relying solely on the police record and set aside the judgment rendered by the Tribunal. The judgment delivered by the High Court was challenged by the claimant before the Supreme Court. The Supreme Court contradicted the observations of the High Court and confirmed the findings of the tribunal notwithstanding that they were based on documents which formed part of the police record……"

14. From the side of the Petitioner, it has been contended and emphasised that the statement made by the Complainant in an FIR itself cannot be regarded as the final word, especially in

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view of the fact that the said Complainant-Smt. Kanuba Mahendrasinh Sodha, who had herself sustained injuries and then sent up the FIR had subsequently herself submitted to the effect that she was not in a proper condition after the accident, and had by mistake mentioned the name of Hatuba Kalaji Sodha, who was her co-passenger, as driver of the car, and that the actual driver was Anwar Kasam Manjothi. While the State Commission disregarded this retraction by the FIR makers as 'possibly an after-thought' but the submission from the Petitioner's side is that a statement made on oath is to be regarded as much more reliable than the one mentioned in any documents, and to support this contention certain decisions have been cited.

15. In "Smt. Kamla Devi and Ors. Vs. Balwinder Singh and Anr., 1992 SCC OnLine P&H 1120"; the Punjab & Haryana High Court had held inter alia -

"5. Learned Counsel for the appellants has vehemently argued that the finding of the Tribunal as well as of the learned Single Judge cannot be sustained it was contended that when a witness has denerd a fact on oath, mere confronting him with respect to something recorded by a third person, by itself is not sufficient to disbelieve the witness particularly when the scribe of the F.I.R. has not been examined. The statement recorded in the F.I.R. cannot be raised to a Pedestal higher than that of a statement on oath. It does carry a presumption of truth but keeping in view our social conditions where paths still carry a presumption of truth but keeping in view our social conditions where paths still carry a sanctity, it can be reasonably said that out of the two, the statement made on oath should be believed as the truthful statement particularly when the contradiction in the two is not something very material……."

16. In "New India Assurance Co. Ltd., Coimbatore Vs. Manimaran and Anr., 2008 (2) TN MAC 137"; the Madras High Court had held inter alia -

"10. It is well settled that FIR is not an encyclopaedia and merely based on FIR, negligence cannot be fastened. FIR in accident cases is often lodged in a haste manner and the same cannot be substituted for evidence to be let in by the parties before the Tribunal. It is the duty of the Tribunal to assess the evidence both oral and documentary to render a finding on negligence. It is the case of the claimant that in order to avert an accident, he was constrained to turn the vehicle on the left side of the road, which resulted in the accident and it was not due to any negligence. The said statement is corroborated by PW.2."

17. In "The New India Assurance Company Limited Vs. G. Vijaya Kandiban & Anr., 2006(2) TN MAC 37"; similarly the Madras High Court had observed inter alia -

"24. For the reasons recorded above, it is seen on the record that it is proved that the accident was on account of rash and negligent driving of the driver of the van. Similar view has also been taken when a witness has denied a fact with respect to something recoded by a third person, by itself is not sufficient to disbelieve the witness, particularly when the scribe of the first information report has not been examined. The statement recorded in the F.I.R. cannot be raised to the pedestal higher than that of a statement on oath. It does not carry a presumption of truth but keeping in view of our social conditions where oaths still carry a sanctity it can be reasonably said that out of two statements made on oath should be believed as truthful

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statements particularly, when the contradiction in the two is not something very material………"

"27. It is also the Supreme Court's view that the object of First Information Report from the point of view of the informant is to set the Criminal Law in motion. From the point of view of the investigating authorities, it is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The report does not constitute substantive evidence though it is important as conveying the earliest information about the occurrence. It can be used only as a previous statement for the purpose contemplated under the Act.

"28. In the circumstance of the case the evidence and the statements of information of oath have given much credence to the conclusion of the Tribunal and the same was rightly considered by the Tribunal in fixing the negligence on the part of the driver and also the quantum fixed by the Tribunal with 12% interest is proper. Therefore, the decision arrived by the Tribunal is based on the evidence. Though there are certain technicalities raised on the F.I.R., the other aspects pointed out by the Tribunal have confirmed the negligence on the part of the driver. Accordingly, the negligence fixed by the Tribunal is confirmed. There is no reason to interfere with the Tribunal's order and the same is confirmed."

18. In the present case also, the District Forum had taken note of the fact that the Complainant had clarified in her subsequent Affidavit how the name of Hatubha Kalaji Sodha had been entered as driver in the Police complaint. It was further noted that Anwar Kasam Manjothi, who was stated to be the actual driver at the relevant time had himself submitted his Affidavit (Mark 16) and also supported by the Affidavit of Hathuba Kalaji Sodha. As already seen in the decision in "The New India Assurance Company Limited Vs. G. Vijaya Kandiban & Anr." (supra), the view of the Supreme Court is that the object of an First Information Report from the point of view of the informant is to set the Criminal Law in motion. But, from the point of view of the investigating authorities, it is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The report does not constitute substantive evidence though it is important as conveying the earliest information about the occurrence. It can be used only as a previous statement for the purpose contemplated under the Act. As seen from the citation relied upon by the Petitioner's side, a statement on oath is always to be placed at a higher pedestal than that mentioned in a document.

19. It is also noteworthy that the Motor Accident Claims Tribunal (Main), Kachchh at Bhuj, in considering the compensation claimed on account of the death and injuries to some of the victims who died and were injured in the same accident in which the vehicle involved in the present case had been damaged, the Tribunal after having taken appropriate evidence of the contesting sides had accepted that Anwar Bhai Manjothi, who was the OP-1 in the concerned Motor Accident Claim Petition Nos. 332, 333, 334, was actually driving the vehicle in question at the relevant time, when it met with the accident. Consequently, the compensation was awarded to the various claimants against the Respondent-Insurance Company which, as submitted by the Ld. Counsel for the Petitioner was paid to the claimants, and no challenge to the decision by way of any appeal or other proceedings was raised on behalf of the Respondent.

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20. Further, the criminal trial against Hathubha Kalaji Sodha on the charges under Sections 279, 304, 337, 338 of IPC and Sections 177 and 184 of the Motor Vehicles Act which was held in consequence of the Criminal Law by way of the FIR having been lodged against him, also ultimately ended in his acquittal by the Court of the Ld. Judicial Magistrate Nakhatrna, Kachchh, vide its judgment passed on 14.8.2012. It was specifically mentioned in the judgment that the identity of the accused Hathubha Kalaji Sodha, as the person driving the car involved in the accident, was not proved.

21. In the face of such overwhelming evidence to the effect that the vehicle in question was not being driven by Hathubha Kalaji Sodha at the relevant time, but by Anwar Manjothi, who did possess a valid Driving Licence, this Commission is of the view that the approach of the State Commission in discrediting the correctional Affidavit of the Complainant- Smt. Kanuba Mahendrasinh Sodha in the FIR as a 'possible after-thought' was not called for, and setting aside of the decision of the District Forum, which had gone in favour of the Complainant, was also not justified.

22. For the aforesaid reasons, the Revision Petition is allowed after setting aside the Impugned Order passed by the State Commission, and restoring the Order of the District Forum.

Parties to bear their own costs.

Pending applications, if any, also stand disposed off.

......................J

SUDIP AHLUWALIA

PRESIDING MEMBER

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