The United India Insurance Co. Ltd ... vs Shiv Narain And 4 Ors.
2017 Latest Caselaw 538 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 18
 

 
Case :- FIRST APPEAL FROM ORDER No. - 698 of 2007
 

 
Appellant :- The United India Insurance Co. Ltd Through Its Regional Mana
 
Respondent :- Shiv Narain And 4 Ors.
 
Counsel for Appellant :- R.C.Sharma
 
Counsel for Respondent :- S.A.Ansari,Mukesh Singh
 

 
Hon'ble Attau Rahman Masoodi,J.

Heard Sri R.C. Sharma learned counsel for the appellant, Sri Mukesh Singh learned counsel who has put in appearance on behalf of respondent nos. 1 to 3. None for respondent nos. 4 and 5 despite service being sufficient.

The motor accident which took place on 29.6.2000 was not reported to the police nor the unknown vehicle which allegedly caused the accident was taken into custody by the police and there is no police report in the instant case. The deceased late Shakuntala died on the same very day in the hospital when the accident is alleged to have taken place. A claim petition was filed by the husband of the deceased nearly after six months joining with his two minor children as claimants wherein the appellant(insurer) was impleaded as defendant no. 1 whereas the owner and driver of the vehicle were also impleaded as defendant nos. 2 and 3 respectively.

Para 23 of the claim petition filed before the tribunal has disclosed the number of offending vehicle(Jeep) as U.P.42/1208 which allegedly was driven rashly by the driver and caused the accident. The claimant was not an eye-witness to the accident, as such, the description of the vehicle as well as rash driving by the driver was based on hearsay information. The insurer and other defendants duly filed their written statements. The insurer in his written statement disputed the alleged vehicle being involved in the accident. The owner of the vehicle also denied involvement of the vehicle in the accident besides denying Shri Mustafa Haider to be the driver at the time of accident. The driver in the written statement filed before the tribunal has admitted the accident in his written statement.

In view of the pleadings set-forth by the respective parties, learned tribunal proceeded to frame issues and as many as four issues were framed by the tribunal, which  are of the following description:-

1. Issue no. 1 was framed in relation to the accident having taken place on 29.6.2000 at 5.00 a.m. by  jeep no. UP 42D 1208 when on account of its rash, negligent driving Smt. Shakuntala sustained serious injuries and later on succumbed to death.

Issue no. 2 was as regards the offending vehicle being insured.

Issue no. 3 related to the validity of transport papers and driving licence.

Issue no. 4 was framed as to the quantum of compensation to which the claimants were entitled.

As noted above, there was no police report in the present case and thus a report under Section 158(6) of the Act was not forwarded to the tribunal in relation to the accident giving rise to the claim. The claimants in such a situation had to prove their case on the strength of independent evidence led before the tribunal.

From the material available on record, it is gathered that the claim was sought to be established on the strength of evidence of one eye-witness namely Ajay Pratap Singh as P.W. 2 and evidence of the claimant himself as P.W. 1. Both of the witnesses were cross-examined by the insurer. The owner and the alleged driver of the vehicle did not appear in evidence before the tribunal despite  filing of the process by the claimants. It may be noted that the insurer as well as owner of the vehicle had denied the involvement of the vehicle whereas the driver in his written statement had admitted involvement of the vehicle in the alleged accident. At the time of recording evidence, P.W. 1 Shiv Narayan in his examination-in-chief at the first instance deposed that a jeep of blue colour was involved in the accident which caused injuries to his wife Shakuntala and the same was taken into custody by the police and released later on. In the cross-examination, P.W. 1 has deposed that he had not himself seen the  alleged vehicle causing accident. Thus, it is clear that P.W. 1 Shiv Narayan was not an eye-witness to the alleged accident. The decisive evidence on the question of involvement of vehicle no. U.P.42/1208 is that of one Sri Ajay Pratap Singh who in his examination-in-chief has clearly disclosed the number of the vehicle as jeep no. U.P.42/1208 and also mentioned the colour of the jeep as blue. Interestingly, in the opening sentence in examination in chief, the eye-witness stated that the accident had taken place in the evening and soon thereafter in the corrected version he stated that the alleged accident had taken place in the morning. The eye-witness in his cross-examination has clearly deposed about his familiarity with the husband of the deceased. At the same time, the witness has denied that the statement made before the tribunal was being made under any influence of his relationship. The eye-witness in his cross-examination has clearly disclosed his presence till the time vehicle was taken into custody by the police, but he neither inquired the name of the driver nor could he know as to which news paper was being transported by the offending vehicle as on the date of occurrence. The presence of the witness in the early hours at the place of occurrence was also not stated in clear terms. The eye-witnesses has also deposed that he accompanied with the injured to the hospital who on being declared dead, the witness is stated to have returned  back  home and did not lodge any police report.

Learned tribunal while appreciating the evidence of the eye-witness has believed the evidence of Ajay Pratap Singh but this evidence led before the tribunal according to the learned counsel for the appellant was not credible to prove the version of the claimants beyond doubt.

Shri R.C. Sharma, learned counsel for the appellant has argued that there was no case set out in the claim petition of the accident having been witnessed by any person and the only statement made in the claim petition was to the effect that the claimants had come to know about the accident through the villagers. It is argued that unless a fact is pleaded in the claim, the same cannot be inferred on the basis of mere evidence and that too when the same is inconsistent and unworthy  of being relied upon.

The other submission made by learned counsel for the appellant relates to the identity of the driver who at the relevant point of time was not seen driving the vehicle by anyone. On this aspect of the matter, the appellant(insurer) in order to make out his defence pleaded in the written statement  produced D.W. 1 who in his examination-in chief has stated that the alleged driver at the relevant point of time was not driving the offending vehicle, inasmuch as, the claimant himself as per the report of private claims tracker was found to have stated  in presence of two witnesses that  on the date of the accident  wherein his wife died, the offending vehicle had hit and run from the place of occurrence.

This deposition according to the defence witness was available in the handwriting of one Hayat Mohammad witnessed by two villagers namely Sitaram and Fayadeen upon which a thumb impression was put by Shiv Narayan(claimant). On the strength of evidence of D.W. 1, it was sought to be established that  the alleged accident was a hit and run case and the evidence of eye-witness i.e. Ajay Pratap Singh was argued to be unbelievable and unreliable.

To meet the defence evidence led before the tribunal, the claimant took support of the other claim petition no. 114 of 2001 which though related to a subsequent accident by the same vehicle but was decided at an earlier point of time. In the said proceedings, the same very owner of the vehicle who is appellant in the present case had clearly admitted Shri Mustafa Haidar to be the driver of the offending vehicle. In that case  Sri Mustafa Haider was established to be the driver of same very vehicle. The learned tribunal proceeded to record a finding in favour of the claimants and disbelieved the evidence of private investigator which the insurer had produced. It is worthwhile to note that P.W. 1 while being cross-examined by the insurer has denied any  such statement being made before Hayat Mohammad. It is to be noted that P.W. 1 at the same time has stated that the version of the statement as filed before the tribunal written in the manner above, his thumb impression was obtained forcibly on a plain paper. The witness also denied his knowledge about any such statement having been drawn in his presence or signed by the witnesses.

The fact remains that the tribunal has recorded its findings on the basis of an independent evidence of the driver having himself accepted the accident which was supported by the admission of appellant himself in claim petition no. 114 of 2001 decided by a competent court of law.

The truthfulness of the alleged accident  in the totality of circumstances turns on the evidence of P.W. 2 Ajay Pratap Singh and the driver whose presence unless disproved, the appeal would not succeed. 

The jeep involved in the accident was engaged in the transport of newspaper and thus non-registration of a police report is not an unusual fact. In so far as the evidence of driver about the accident is concerned, the same was rightly relied upon by the tribunal and his evidence gives support to the evidence of eye-witness  P.W. 2 Shri Ajay Pratap Singh. The minor overlapping as regards the vehicle being taken into custody by the police and yet there being no police report would not make the statement doubtful.

The argument that evidence was led beyond the pleadings in the claim is also devoid of merit, in as much as, the pleadings set out in the claim are proforma based and the Indian Evidence Act does not strictly apply. Thus, the claimant's evidence adduced before the tribunal remained disproved and would thus aid the cause of compensation provided under the welfare legislation and the same cannot be discarded on the grounds urged. The appellant did not argue on any other point.

The findings recorded by the tribunal thus do not call for any interference and the appeal is accordingly rejected.

No order as to cost.

Order Date :- 12.5.2017

kanhaiya