Allahabad High Court
Ashok Kumar vs National Insrance Comp Ltd. ... on 8 August, 2018
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 18
Case :- FIRST APPEAL FROM ORDER No. - 527 of 2012
Appellant :- Ashok Kumar
Respondent :- National Insrance Comp Ltd. Ambala And Ors.
Counsel for Appellant :- R.K.S.Suryvanshi,Anshul Baranwal,Ashish Raman Mishra
Counsel for Respondent :- Rajesh Kr. Tripathi,Waquar Hashim
Hon'ble Rajnish Kumar,J.
The instant appeal has been filed against the judgment and award dated 30.11.2010, passed by the Motor Accident Claims Tribunal/Additional District Judge Court No.1, Sitapur in Motor Accident Claim Petition No.269 of 2003, by means of which the Claim Petition has been allowed for an amount of Rs.1,77,000/- against the appellant alongwith 7% simple annual interest from the date of filing of the claim petition. It has further been provided that after payment of the amount the same would be distributed in accordance with the directions of the Hon'ble Supreme Court in the case of Sushma Thamos.
The claim petition was filed by the respondent nos.2, 3 and 4, who are the husband and children of the deceased Smt.Ranno Devi. The claim petition was filed with the averment that late Smt.Ranno Devi was coming back from toilet at the road side on 05.08.2003, suddenly a Truck bearing No.HR-37-B-6348 hit her, in which Ranno Devi died leaving behind her husband and two children. It appears that the claim petition was allowed exparte vide judgment and award dated 18.08.2004 by the Motor Accident Claims Tribunal.
On coming to know about the judgment and award through the recovery notice issued by the Claims Tribunal, which was served on the appellant through Tehsildar, the appellant moved a recall application before the Claims Tribunal on 30.09.2008. The recall application was allowed and the judgment and award dated 18.08.2004 was set aside and the appellant was allowed to file his written statement. The written statement was filed by the appellant on 22.02.2010.
On the basis of the pleadings five issues were framed. The claimant-respondents had produced three witnesses, namely, P.W.-1-Amar Singh, PW-2-Shyam Lal and PW-3-Shri Chandra. The claimants had also filed certified copies of the First Information Report, Post Mortem Report, Charge-sheet, Family Register and site plan etc. in evidence. On behalf of respondents-i.e. the present appellant OPW-1-Gurunam Singh was got examined as Driver.After hearing both the parties and considering the material available on record the claim petition has been allowed as aforesaid.
Heard learned counsel for the parties.
Submission of learned counsel for the appellant is that at the time of alleged accident the vehicle was being driven by one Shri Gurunam Singh and despite specific plea in the written statement, he was not arrayed as a party to the claim petition. It has wrongly been shown that the appellant, who is owner of the vehicle, was driving the vehicle at the time of accident. The appellant is a patient and under the treatment in SGPGI, Chandigarh. He was not in a condition to drive the vehicle, specially the heavy vehicle like truck. The appellant has neither any licence of driving the heavy vehicle nor he has driven the heavy vehicle. It has further been submitted that the appellant had produced the driver of the alleged vehicle Shri Gurunam Singh as OPW-1, who had stated that he is driver of the vehicle, but learned Tribunal erred in holding that the appellant, who is owner of the vehicle, was driving the vehicle at the time of accident and he was not having valid driving license to drive the vehicle (truck) involved in the accident. Accordingly concluded that the vehicle was being driven against the terms and conditions of the policy and exempted the Insurance Company from his liability.
The aforesaid finding of the learned Tribunal has been sought to be challenged on the ground that neither the vehicle has been caught on the spot nor any arrest has been made against the First Information Report and no one has seen the appellant driving the vehicle. Only on the presumption the charge sheet has been filed against the appellant in the criminal case. The appellant has falsely been implicated in the criminal case and learned Tribunal has erred in relying on the charge sheet and driver mentioned therein. It has further been submitted that the truck was being driven by the driver Shri Gurunam Singh, who was having valid driving licence in accordance with the terms and conditions of the Insurance policy. Accordingly even if the learned Tribunal came to the conclusion that the vehicle of the appellant was involved in the accident, the liability, if any, for the payment of the compensation is that of the Insurance Company and not of the appellant.
Learned counsel for the appellant has relied on a judgment of this Court passed in the case of National Insurance Company Limited Versus Jai Deo Singh and 2 others; 2010(28) LCD 499.
Per contra, learned counsel for the respondents submitted that no information of the accident was given by the vehicle owner to the Insurance Company. He further submitted that the necessary documents, such as site plan etc. have not been annexed with the Claim petition,therefore it cannot be said that any accident took place. He further submitted that the driver of the vehicle was not having a valid driving licence at the time of accident and the vehicle was also not having the permit and valid registration certificate, as such there is violation of the Insurance Policy. Learned counsel for the respondents further submitted that the alleged driver of the vehicle Shri Gurunam Singh was got examined by the appellant. He in his statement had stated that he was driving the vehicle and no accident took place from his vehicle. But in the cross examination he had stated that he had loaded the goods from Haryana and unloaded at Delhi, but he failed to produce any evidence in this regard. As such his evidence has rightly not been accepted by the learned Tribunal. He has further submitted that the criminal prosecution has also been lodged against the appellant and a charge sheet has been filed against him. Therefore it is clear that the appellant was driving the vehicle at the time of accident and he was not having the valid driving licence to drive the truck.
On the basis of above, submission of the learned counsel for the respondents is that the vehicle was being driven against the terms and conditions of the Insurance Policy so the Insurance Company has rightly not been held responsible for payment of the compensation. The learned Tribunal has rightly allowed the claim petition in accordance with law after considering the pleadings,evidence and material available on record against the appellant.
I have considered the submissions of the parties and perused the records.
The submission of the learned counsel for the appellant is that on 05.08.2003 the deceased Ranno Devi was coming from toilet on a road side, suddenly the truck no.HR-37-B-6348 hit her in which she died. Learned Tribunal, after considering the evidence of the witnesses,material on record has come to the conclusion that the driver of the truck no.HR-37-B-6348 hit the deceased while he was driving the truck rashly and negligently. P.W.-2 and P.W.-3 have deposed in their statement that they had seen the aforesaid truck hitting the deceased and they had noted down the truck number. The First Information Report was lodged in respect of the accident and the First Information Report, post mortem report of the deceased and the site plan have also proved the evidence adduced before it. The charge sheet has also been filed against the appellant. Therefore, the submission of the learned counsel for the appellant that the truck of the appellant bearing no.HR-37-B-6348 was not involved in the accident, cannot be accepted and is liable to be rejected.
The submission of the learned counsel for the appellant that the truck was not being driven by the appellant and the charge sheet has wrongly been filed against the appellant because the truck was being driven by his driver Shri Gurunam Singh, is also not acceptable. The alleged driver Shri Gurunam Singh was got examined as OPW-1. He, in his statement, has stated that he was driving the vehicle on the date of accident and he had loaded the goods from Haryana and unloaded at Delhi. It is further to be noted that Shri Gurunam Singh has stated in his cross examination that he had loaded the goods from Haryana, but no specific place has been indicated. The statement of the alleged driver Sri Gurunam Singh has not been proved by any cogent evidence and no documentary proof has been produced in regard to the loading and unloading of the goods.
In view of above, the evidence led by the appellant regarding the driver is not acceptable as the appellant could not prove from any cogent evidence that he was driving the vehicle, so the question of shifting burden does not arise.Therefore the reliance placed by the appellant on the case of this Court in the case of National Insurance Co.(supra) is mis-conceived.
The burden of proof lies on the person who asserts it as provided in Section 101 of Indian Evidence Act,1872.
The Apex Court in the case of Rangammal versus Kuppuswami and another; (2011) 12 SCC 220, has held as under:-
"21. Section 101 of the Evidence Act, 1872 defines "burden of proof" which clearly lays down that:
101. Burden of proof-Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person"
Thus the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives as such conclusion, he cannot proceed on the basis of weakness of the other party."
Accordingly, the evidence of Shri Gurunam Singh has rightly not been accepted by the learned Tribunal. The learned Tribunal has rightly recorded the finding on the basis of the charge sheet and the evidence of the witnesses that the appellant was driving the vehicle at the time of accident. The appellant has not produced any licence of driving the truck.Therefore there was a clear violation of the terms and conditions of the policy so the appellant has rightly been held liable for the compensation.
The submission of learned counsel for the appellant that the vehicle was neither caught on the spot nor any arrest was made against the First Information Report and the charge sheet has been filed merely on presumption, is misconceived because the appellant could not prove that somebody else was driving the vehicle, involved in accident, at the time of accident.
In view of above,the judgement and award passed by the learned Claims Tribunal is based on cogent evidence and reasoning. The appeal has been filed by the appellant on misconceived and baseless grounds and lacks merit. Hence it is liable to be dismissed.
The appeal is dismissed.
No order as to costs.
The money, if any, deposited before this Court shall be remitted to the concerned Tribunal for adjusting towards the compliance of the order.
Order Date :- 8.8.2018
Banswar /Akanksha S. (Rajnish Kumar,J.)
