Ramesh Chandra Alias Lalla vs Chandra Pal Karwariya & Others
2017 Latest Caselaw 4758 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									A.F.R.
 
Court No. - 28
 

 
Case :- FIRST APPEAL FROM ORDER No. - 71 of 2000
 

 
Appellant :- Ramesh Chandra Alias Lalla
 
Respondent :- Chandra Pal Karwariya & Others
 
Counsel for Appellant :- Samir Sharma,S.B. Dubey
 
Counsel for Respondent :- C.B.Gupta,J.N. Misra,K.S. Amist,Shiv Babu Dubey
 

 
Hon'ble Saumitra Dayal Singh,J.

This appeal has been filed by the owner against the award of Motor Accident Claims Tribunal, Banda dated 5.11.1999, in Motor Accident Claim Petition No. 15/70 of 1992, whereby the Tribunal has made an award of compensation of Rs. 1,81,908/- together with 12% interest arising from the injuries received by the claimant Chandra Pal Karwariya in a motor accident that occurred on 07.11.1991 at about 3 p.m. Therein two three wheeler Tempo bearing registration nos. UGJ-5262 (hereinafter referred to as the insured vehicle), owned by the present appellant and insured by the United India Insurance Co. Ltd. (respondent no.5) collided with another three wheeler Tempo bearing registration no. CPV-8968.

The claimant was travelling in the insured vehicle. In that accident, he lost his left hand (above the elbow) as a result of injuries suffered by him. The Tribunal framed four issues including the first issue as to the negligence a cause of the accident.

In respect of that issue, it was noted, while the claimant impleaded the appellant as owner of the insured vehicle as also others including Umesh alias Baura and one Bhupat son of Pyarey Lal of the insured vehicle.

The owner appellant filed its written statement and in that he specifically pleaded Umesh @ Baura was called deaf and dumb. He did not know how to drive a motor vehicle and he did not have a valid and effective driving licence. Therefore, the appellant further pleaded the insured vehicle was being driven by Bhupat at the time of accident.

The insurer also filed its written statement. In the additional plea raised by the insurer it did not plead who, according to it between Bhupat and Umesh alais Baura was the driver of the insured vehicle at the time of the accident.

It then appears, upon the accident having occurred, an FIR was lodged on 19.11.1991 by Ram Raja Karwariya, brother of the injured claimant wherein it is alleged, he stated the insured vehicle was being driven by Umesh @ Baura at the time of accident. In the police Case Diary also name of Umesh @ Baura appears to have been included.

It is in this background that evidence came to be led before the Tribunal as to the identity of the person driving the insured vehicle.

Admittedly, neither the appellant nor Bhupat nor Umesh @ Baura testified before the Tribunal. The Tribunal has considered the testimony of three witnesses examined by it. In the first place Suresh Chaturvedi (PW-2) was examined. He claimed himself to be a passenger in the other three wheeler tempo CPV 8968. During his cross-examination by the present appellant, he identified the driver of the insured vehicle as Bhupat. However, during his further cross examination, he stated that the driver of the insured vehicle had run away after the accident, by the time he reached the accident spot. Again, during his further cross examination, he stated that it was correct to say that the insurred vehicle was not being driven by Umesh @ Baura at the time of accident.

Then Chandra Pal Karwariya claim was examined. Though he did not name the driver of the insured vehicle in his examination-in-chief, upon being cross-examined he first stated that he did not know the name of the driver of the insured vehicle. However, upon further cross-examination by the present appellant, the claimant stated the insured vehicle was being driven by Bhupat.

Lastly, Natthu (DW-1) was examined. In his examination-in-chief, he stated at the time of accident he was travelling in the insured vehicle being driven by Bhupat. Upon cross-examination by the insurer he stood by his testimony and no inconsistency emerged in such cross-examination.

The Tribunal has considered the aforesaid evidence. It has discarded the evidence of Suresh Chaturvedi and Chandra Pal Karwariya in view of inconsistencies noted above. The same cannot be faulted.

Then the Tribunal completely disbelieved the testimony of Natthu (DW-1) on a solitary reasoning that the said testimony was belated and relying solely on the FIR version of the accident. It has also raised a presumption as to the driver of the insured vehicle being deaf. Consequently, the Tribunal has concluded the insured vehicle was being driven by Umesh alias Baura because he, according to the appellant, was deaf.

Learned counsel for the appellant submits, the Tribunal has completely erred in reaching the conclusion that the insured vehicle was being driven by Umesh @ Baura and not by Bhupat. The Tribunal has, in the first place erred in disbelieving the testimony of Natthu. According to him the testimony of Natthu was recorded during the course of proceeding before the Tribunal and the fact that the testimony of Natthu came to be recorded last does not in any way dilute its evidentiary value. Elaborating his submission further, he contends no question was ever put to Natthu, either by the Tribunal or the insurer as to why he had not led evidence earlier. In any case, he submits, admittedly, that evidence was lead before the Tribunal in the course of the claim proceedings. Therefore, the point of time when it was lead and the fact that Natthu was the last witness examined by the Tribunal is wholly irrelevant.

Second, he submits, the reasoning of the Tribunal that the driver of the insured vehicle must have been Umesh @ Baura is grossly perverse and based on pure presumptions and conjunctures insofar as the Tribunal has reasoned that the driver of the insured vehicle must have been deaf and dumb because according to the claimant's own testimony he did not heed to the warning by the claimant to driver the tempo at a slow speed and carefully. The Tribunal has thus concluded that the driver of the insured vehicle must have been deaf and dumb. It has therefore concluded, it was Umesh @ Baura who was driving the insured vehicle because according to the appellant, that person was mute dumb.

Learned counsel for the appellant submits, such reasoning cannot be accepted. It is wholly imaginary besides being totally conjectural.

Third, reasoning of the Tribunal, it was Umesh @ Baura who was driving the insured vehicle, because his name finds mention in the FIR and in the police Case Diary is wholly perverse inasmuch as the same was not corroborated by any evidence or material on record. In this regard he has placed reliance on a judgment of the Division Bench of this Court in the case of National Insurance Co. Ltd. Vs. Jai Dev Singh and Ors. reported in 2010 (4) ADJ 616 wherein a similar dispute had arisen as to the identity of the driver of the insured vehicle.

Learned counsel for the respondent-insurer has on the other hand supported the award of the Tribunal and submitted that the Tribunal has not made any error in fixing the liability of compensation on the owner as the FIR had been lodged by the brother of the claimant wherein it was stated, it was being lodged upon information given by the claimant.

He also submits, it was for the appellant to have got himself and Bhupat examined before the Tribunal, to prove that the insured vehicle was being driven by Bhupat. Having failed to lead such evidence, the appellant cannot be heard to say that that insured vehicle was being driven by Bhupat and not Umesh @ Baura.

A similar objection has been dealt with by the division bench decision of this Court in the case of National Insurance Co. Ltd. Vs. Jai Dev Singh (supra). In that case, in his written statement, the owner of the vehicle had named Anuj Kumar Bajpai as the driver of the insured vehicle. The insurer claimed Kallu Bajpai was the driver on the basis of charge sheet filed in the criminal case. It also appears, the Tribunal had issued non-bailable warrants to Kallu Bajpai, but he did not appear. No other witness appeared to establish, it was Kallu Bajpai who was driving the vehicle at the time of accident. The Tribunal then believed the owner's case in that regard.

Upon appeal the division bench held as under :

"6....In case, Kallu Bajpai had not appeared, then it was incumbent on the appellant insurance company to take other recourse in accordance with law to procure the attendance of Kallu Bajpai but the same has not been done.

7. Once the owner of the vehicle has taken a plea that the driver of the vehicle was Anuj Kumar Bajpai and accordingly, an application was also moved to the insurance company for payment of the insured amount, then the burden to prove that Kallu Bajpai was driving the vehicles shifts on the shoulder of the appellant insurance company. In that regard, the appellant insurance company has not produced any evidence which may establish that Kallu Bajpai was driving the vehicle. Merely because the name of Kallu Bajpai has been given in the charge-sheet, filed by the appellant without any further proof shall not be sufficient evidence to establish that the vehicle was not driven by Anuj Kumar Bajpai.

8. The trial in a criminal case and the proceeding of the tribunal under Motor Vehicles Act, are governed by different law and the finding recorded by the police while recording statement under Section 161 Cr.P.C. or while filing charge-sheet is not a substantive evidence. It is settled law that the contents in the First Information Report or the statement recorded under Section 161 Cr.P.C. are not a substantive evidence. It shall always be incumbent on the concerned party that while relying upon such statement, he or she should also prove the same like other evidence in accordance with the provisions contained in the Evidence Act. The burden was on the appellant insurance company to prove by cogent and trustworthy evidence that the vehicle was being driven by Kallu Bajpai. Without any corroborative evidence, the contents of the charge-sheet or the statement recorded under Section 161 Cr.P.C. or the First Information Report may not be taken as substantive evidence. Moreover, the contents of Section 161 Cr.P.C. or the charge-sheet are the statement given before the police and lacks evidentiary value unless proved in accordance to law."

In the instant case, besides the pleading in the written statement an independent eye-witness Natthu (DW-1) specifically stated the insured vehicle was being driven by Bhupat and not Umesh @ Baura and no witness examined by the Tribunal supported the case set up by the insurer. In fact the insurer did not even seek to examine, either Bhupat or Umesh alias Baura or the appellant/owner of the insured vehicle.

In that view of the matter, it is seen, there was no evidence to establish that the insured vehicle was being driven by Umesh @ Baura. Merely because the name of Umesh @ Baura finds mention in the FIR and in the police Case Diary, it does not improve the insurer's case as held by the division bench in the above noted judgement of this court.

If the insurer was relying on the FIR version or the police version of the accident, which was clearly contrary to the facts stated and proven by the owner before the Tribunal, it was for the insurer to have led such evidence to rebut the claim of the owner and to establish that the insured vehicle was not being driven by Bhupat.

Insurer having not led any evidence before the Tribunal, it could not rely solely on the basis of the FIR version or the police version to persuade the Tribunal to hold that the vehicle was being driven by Bhupat. The allegation that according to the FIR, information to the first informant had been given by the claimant himself also does not improve the insurer's case as neither the claimant nor the first informant was sought to be examined by the Tribunal. Narration in the FIR itself being not of no evidentiary value, it would make no difference as to who the first informant is and what his source of information may be.

On the other hand, the owner not only pleaded that the insured vehicle was being driven by Bhupat but also proved this fact through independent eye-witness Natthu (DW-1). The testimony of Natthu could not be discrete because it was recorded the last. The fact his testimony was recorded in the proceedings before the Tribunal and also the fact that he was cross-examined, was enough to ensure that his testimony had to be considered in accordance with law. The Tribunal could not have chosen to ignore his testimony solely because, according to it, Tribunal the testimony came to be recorded late. No inconsistency or other doubt having been raised by the Tribunal as to his credibility or reliability or truthfulness of his testimony, the Tribunal grossly erred in rejecting his testimony.

Also, it would not be right to discredit the testimony of Natthu because the appellant did not lead his own evidence or the evidence of Bhupat before the Tribunal. While, in the eyes of the Tribunal, the appellant and Bhupat may have been best witnesses to establish that the insured vehicle was being driven by Bhupat, yet, it cannot be said that this fact could have been established only by the appellant and or Bhupat and no other or that if these witnesses were not examined, it could not be proved that the insured vehicle was being driven by Bhupat.

The choice of witness was not for the Tribunal to exercise. It was for the parties to lead such evidence in support of their respective cases, as they desired. Then, in view of the pleadings and in the state of evidence as was found existing, it was for the Tribunal to judge and decide the issues framed by it. In doing so, it could reject some evidence for reasons to be recorded. In this case, the Tribunal has rejected the testimony of Natthu for no cogent reason but rather whimsically. Therefore, to that extent, the order of the Tribunal is perverse.

Again, reasoning given by the Tribunal that the driver of the insured vehicle must have been deaf and therefore it must have been Umesh @ Baura, is farfetched. It is purely conjectural. The claimant had only stated, he asked the driver of the insured vehicle to drive carefully but he did not pay heed to his advice. Thus the claimant was only seeking to prove the negligent and rash conduct of the driver of the insured vehicle. He did not state that the driver was deaf. On the other hand, the owner had stated in his written statement that Umesh alias Baura was deaf and dumb and he neither knew how to drive a motor vehicle nor he held a driving licence. The conclusion drawn by the Tribunal is therefore based purely on conjectures. It has to be rejected.

Thus, I find, the finding of the Tribunal that the insured vehicle was being driven by Umesh alias Baura and not Bhupat is perverse. In view of the appellant having stated in his written statement the said vehicle was being driven by Bhupat and further having proven that fact by evidence of independent witness, Natthu, there was no breach of terms and conditions of insurance policy. The liability of compensation should therefore have been fixed on the insurer respondent and not the appellant. No reliance can be placed on the alleged FIR version or the alleged police version of the incident as no evidence was led before the Tribunal to prove the same. In such a case the Tribunal could not have relied on that version in preference over the case proven before it.

Then, in respect of interest, learned counsel for the appellant submits that the interest awarded @ 12% is on the higher side. Considering the fact that the accident occurred in the year 1991 and the appeal has remained pending for 26 years, during which period for many years, the rate of interest operating was below 12%, it would meet the ends of justice, if the insurer appellant were to pay interest on the balance decretal amount @ 9% from the date of filing of the claim petition to the date of actual payment.

Under interim order of this Court, an amount of Rs. 50,000/- would have been paid out to the claimant-respondent out of the total award. The insurer-respondent no. 5 shall now deposit, with the Tribunal entire decretal amount together with interest @ 9% (excluding interest on amount Rs. 50,000/- deposited by the present appellant under the interim order of this Court) Rs. 50,000/- thus deposited by the insurer shall be paid out to the appellant while the balance decretal amount together with interest shall be released in favour of the claimant-respondent.

In view of the above, the instant appeal is allowed. No order as to costs.

Order Date :- 21.9.2017

Lbm/-