The Oriental Insurance Comp. Ltd. ... vs Smt. Rani Singh And Ors.
2021 Latest Caselaw 8476 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 19
 

 
Case :- FIRST APPEAL FROM ORDER No. - 391 of 2011
 

 
Appellant :- The Oriental Insurance Comp. Ltd. Through Its Manager
 
Respondent :- Smt. Rani Singh And Ors.
 
Counsel for Appellant :- B.C.Pandey
 
Counsel for Respondent :- Janardan Singh,J.K. Rathore,Janardan Singh,Rajeev Kapoor
 

 
Hon'ble Jaspreet Singh,J.

Heard Sri B.C. Pandey, learned counsel for the appellant. Sri Janardan Singh, learned counsel has put in appearance on behalf of the claimant-respondent nos. 1 to 4.

During the pendency of the appeal, respondent nos. 2 to 4 have attained majority. In compliance of the order dated 07.07.2021, Sri Janardan Singh, Advocate, has filed the vakalatnama on behalf of the respondent nos. 2 to 4 who have attained majority now.

The learned counsel for the parties agree that the issue involved in the instant appeal can be decided on the basis of the record which is available and has been annexed with the appeal itself, hence, there is no requirement to summon the record and on the basis of the consent, the Court has proceeded to hear the learned counsel for the parties.

The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 and against the judgment and award dated 21.01.2011 passed by the MACT/Special Judge, E.C. Act, Gonda in Claim Petition No. 29 of 2008 wherein the Tribunal has awarded a sum of Rs. 3,93,500/- along with 6 % interest per annum from the date of the claim application till the date of its actual payment to the claimants-respondents.

The primary submission of the learned counsel for the appellant is that the Tribunal has erred in failing to note tenor of the evidence filed by the owner of the vehicle bearing No. UP 43 B-1405 that it was not at the accident site and rather it was not even in the country and was in the Kingdom of Nepal on the date of the accident i.e. 07.11.2007.

It is further urged that in order to substantiate the aforesaid, the owner of the vehicle had furnished certain octroi receipts so also the receipt of the Check Post on the Indian side indicating that on the date i.e. 07.11.2007 at around 06:00 PM, the said time of the occurrence of the accident, the said truck bearing No. UP 43 B 1405 was not in India but in the Kingdom of Nepal.

It is further submitted that the aforesaid aspect of the matter has not been considered by the Tribunal in the correct perspective and without giving a clear finding regarding the involvement of the truck in the accident, the Tribunal has erred in awarding the sum to the claimants-respondents, thus, the award stands vitiated and the appeal is liable to be allowed on this ground alone.

The learned counsel for the claimant-respondents submits that the findings returned by the Tribunal is based on the proper appreciation of facts. The Tribunal has also noted the discrepancies in the statement of the driver who is said to be driving the said truck but he could not explain cogently the availability of the truck in Nepal and the receipts and the documents furnished by the owner also do not inspire confidence as there were major discrepancies which proved that the said witness was not reliable and could not establish the availability of the truck in the Kingdom of Nepal as alleged in defence. It is further submitted that considering the aforesaid, the Tribunal has rightly passed the award which requires no interference.

The Court has considered the rival submissions and also perused the material available on record.

In order to test the veracity of the submissions of the learned counsel for the appellant, certain brief facts giving rise to the instant appeal are being noticed first

A claim petition came to be filed by Smt Rani Singh and her three minor children namely Ajai Kumar Singh, Shobhit Singh and Km. Anchal. It was stated that Nar Singh, husband of the respondent no. 1 and father of the respondent nos. 2 and 3 was 32 years old and was earning a sum of Rs. 8,000/- per month from agriculture and business.

It is stated that on 07.11.2017 at around 06:00 PM while the deceased Nar Singh was returning from the house of his brother-in-law (Ashok Kumar Singh) resident of Gram Lalpur Chandrabhan Mauja, Madhavpur Chakatta, a truck coming from the wrong side bearing No. UP 43 B 1405 and was being driven rashly and negligently hit Sri Nar Singh, as a result he sustained grievous injuries, consequently, during his treatment died on 08.11.2007 at Mayo Medical Center at Gomti Nagar, Lucknow.

The claim petition was contested by the owner of the truck who filed a written statement along with his driver as well as a separate written statement was filed by the Insurance Company.

The claim petition has been brought on record as Annexure No. 2 and the written statement filed by the National Insurance Company has been filed as Annexure No. 3. From the perusal of the written statement of the Insurance Company, it would indicate that by and large, the Insurance Company has raised formal defences. It neither took any specific plea regarding the non-availability of the aforesaid truck at the accident site in question.

Be that as it may, the Tribunal considering the rival pleadings, framed five issues.

The issue no. 1 related to the fact whether the accident occurred on 07.11.2007 by rash and negligent driving of the Truck bearing No. UP 43 B 1405 which led to the death of Sri Nar Singh. The other issue was regarding whether the driver of the truck had a valid and subsisting driving license. Another issue was framed as to whether the said truck was duly insured with the Insurance Company. The next issue also related as to whether the truck in question had the requisite documents such as fitness certificate, valid permit amongst others and the last issue was regarding the amount of compensation payable to the claimants.

The Tribunal after noticing the deposition of the three claimants-witnesses as well as the documentary evidence and also considering the evidence which was led on behalf of the owner and its driver Sri Khalil held that the accident was an outcome of the rash and negligent driving of the Truck bearing No. UP 43 B 1405 which was being driven by Sri Khalil.

In so far as the availability of the trucks at the time of accident is concerned, the Tribunal has also noticed the documents which was furnished by the owner of the truck as well as the statement of the driver who could not establish the availability of the truck from the material available on record and held that the accident was caused by the said truck wherein Sri Nar Singh had sustained injuries due to which he expired.

In so far as the other issues were concerned, it was found that the driver had valid and subsisting driving license and the truck in question also possessed all valid documents. Considering the age of the deceased as well as the income a total sum of Rs. 3,92,500/- has been awarded along with 6 % interest by means of award dated 21.01.2011 which has been assailed in the instant appeal.

Considering the submissions made by the learned counsel for the appellants, the Court has considered the documents which have been brought on record as Annexure Nos. 4, 5, 6, 7 and 8, in order to establish that the truck in question was not in India but rather was in Nepal.

If the aforesaid documents are noticed, coupled with the deposition of Sri Khalil which was recorded by the Tribunal, it would indicate that the documents filed as Annexure No. 5 is a receipt which is a bill of entry for Home Consumption which is dated 07.11.2007 and it mentions the vehicle No. as UP 43A/5605, however, there is another entry which mentions as U.P. 43 B 1405 which is in respect of the offending vehicle, however, this receipt could not be proved by him in his statement. He has stated that he alone had gone for the lifting of the Gitti (coarse stone). He also could not establish as to why on the said receipt, the number of Truck No. UP. 43 B 5605 was mentioned. He did not have any knowledge regarding the fact that who was the other driver and the vehicle belonging to the owners namely Rajeev Kapoor. The said driver also did not remember or know the number of the vehicle which he was driving on 07.11.2007.

The other document which has been relied by the learned counsel for the appellant is annexure no. 6. This is an octroi receipt which has been issued by the Nepalese Authorities, and it pertains to the vehicle entering the kingdom of Nepal on 07.11.2007. In so far as this receipt is concerned upon being confronted, the witness indicated that the name of Rajeev Kapoor who was the owner of the truck was not mentioned there rather the name of one Sri Vishvanath is mentioned.

The said witness also could not indicate as to which truck he was driving on the said date. Moreover, it is also noted by the Tribunal that as per the version contained in the claim petition. The accident had occurred when the deceased Nursing was returning from his brother-in-law's resident from Gram Lalpur Chandrabhan Mauja, Madhavpur Chakatta.

The Tribunal has also categorically noticed that there is nothing on record to indicate that on the given date and time the vehicle entered in the Kingdom of Nepal even as per the receipt annexed as Annexure No. 4 and which is issued by the Commercial Tax Officer to indicate that the Truck bearing No. UP 43 B 1405 had crossed the check post on 07.11.200 but nevertheless an attempt has been made to connect the aforesaid receipts but if the statement of Sri Khalil is noticed, it would indicate that he had stated that he was returning with the truck on 07.11.2007. He admitted in his cross-examination that the name on the receipt relating to the offending vehicle and the owner of the vehicle is not the same. He also could not connect as well as establish the validity of the receipts bearing Paper No. Ga-75 and 75/4. He had specifically noted that he alone went to Nepal for the lifting of the Gitti (coarse stone) but he could not explain regarding the involvement of another vehicle number mentioned on the said receipt.

Considering the aforesaid, the Tribunal did not find favour with the statement of Khalil and held while deciding issue no. 1 that the accident was caused by rash and negligent driving of the truck by Sri Khalil.

This Court has also considered the statement of the parties. The findings recorded by the Tribunal on the basis of the material available on record and though an attempt was made by the learned counsel for the appellant to point out certain discrepancies but they are not of such importance which can raise questions on the credibility of three witness produced on behalf of the claimants and even from their testimony, there are clear averments regarding the offending truck hitting the deceased.

In light of the aforesaid, the findings recorded by the Tribunal which is based on the material available on record does not suffer from any perversity which may persuade this Court to interfere in the aforesaid matter.

Considering the aforesaid facts and circumstances as well as considering the proposition that the claim petitions are to be decided on the basis of pre-ponderence, this Court is satisfied that the submissions advanced by the learned counsel for the appellant is not sustainable on the basis of material available on record and the findings returned by the Tribunal do not suffer from any error inviting interference of this Court.

Accordingly, the appeal is dismissed. The Award dated 21.01.2011 passed by the Motor Accident Claim Tribunal/Special Judge, E.C. Act, Gonda in Claim Petition No. 29 of 2008 is affirmed. There shall be no order as to costs. The amount deposited before this Court shall be remitted to the Tribunal concerned to be released in favour of the claimants-respondents.

Order Date :- 23.7.2021

Asheesh