Allahabad High Court
Awadesh Maurya vs Rajesh Kumar Singh on 1 March, 2023
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 27.1.2023
Delivered on 1.3.2023
Court No. - 44
Case :- FIRST APPEAL FROM ORDER No. - 1016 of 1993
Appellant :- Awadesh Maurya
Respondent :- Rajesh Kumar Singh
Counsel for Appellant :- ,Sanjeev Kumar Yadav
Counsel for Respondent :- N.B. Singh,A.K. Shukla,A.K. Singh,Aijaz Ahmad Khan,L.M. Sinha,Ramesh Chandra Yadav,S.N. Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. By way of this appeal the appellants have challenged the judgment and award dated 13.08.1993 passed by IInd Additional District Judge/ Motor Accident Claims Tribunal, Azamgarh in Claim Petition No. 13 of 1989 whereby the learned Tribunal has awarded Rs. 98,000/- as compensation with interest at the rate of 12% per annum.
2. Heard Sri Sanjeev Kumar Yadav, learned counsel for the appellant and Sri A.A. Khan & Sri A.K. Shukla, learned counsel for the respondents.
3. Appellants are the original respondent and respondent Nos. 1 & 2 are the original dependents. Respondent No.3. is the Insurance Company with which the tractor trolley was insured. The petition came to be filed by one Rajesh Kumar Singh and Sushela Devi claiming compensation for the death of Bhupendar Singh. Claimant No.1 is the son and claimant No.2 is the wife of deceased. There are other legal heirs of the deceased namely Ramesh aged about 15 years and Ranjoo Singh, aged 16 years. They are the minor son and minor daughter of the deceased. The deceased was 42 years of age at the time of accident and he was Lekhpal in U.P. Government and was receiving salary of Rs.1500 per month. He was also earning Rs. 500/- from farming and handicraft.
4. The appellants have aggrieved by the judgment of the Tribunal as finding is not based on correct appreciation of evidence. The driver of the vehicle was one Krishna Yadav who had license for plying the said vehicle and the vehicle was insured with the Insurance Company.
5. It is further submitted that even the claimant Rajesh Kumar accepted that it was Krishna Yadav who was driving the vehicle and, therefore, the finding of fact that it was Rajender who was driving the vehicle just because his name was shown in the F.I.R. is bad in the eye of law.
6. The accident having taken place on 16.11.1988 at 3.00 p.m. in the eastern part of Bhaduli Market is not in dispute. The deceased was plying in the offending tractor laden with bricks and it was to be offloaded at the residence of the deceased in village Ranipur. The accident took place because of the negligent driving of the driver of tractor.
7. Before the Tribunal it has been stated by the O.P. Nos. 1 & 3 in their joint written statement that O.P.No.1 is not the owner of the offending vehicle. Its owners are O.P. Nos. 3 to 6. It was further stated that no accident took place involving tractor in question. It came to be registered on 21.11.1988. It was not on the road on 16.11.1988 when the accident was said to have taken place. the death of Bhupendra Singh was not caused by this tractor. It was further stated that the claim is bad for misjoinder of the O.P. Nos. 3 to 6. He has been unnecessarily impleaded as in the written statement of O.P. Nos. 1 & 3. The Tribunal raised about 12 issues. From the beginning, the appellant herein denied the accident having taken place but the finding of fact is against the same.
8. The evidence goes to show that two persons were sitting on the driver seat whose names were Rajender and Krisha Yadav. D.W.2 has also deposed on oath that he was driver of offending tractor. The accident has been accepted by the Tribunal. The claimant according to the Insurance Company has deposed that it was Rajender who was driving the vehicle and, therefore, the Tribunal has held that there is breach of policy condition as vehicle was not being used for agricultural purpose. No other vehicle was involved in the accident. It is submitted by Sri A.K. Shukla, learned Advocate that tractor could not have any person sitting on it and Rajender was the driver and the vehicle was not used for agricultural purpose. The owner has not been examined on oath is the submission of Sri A.K. Shukla as well as counsel for the claimant. The deposition of the driver who has deposed as D.W.2 has not been accepted as he has denied the accident having taken place. The Tribunal has gone on the plea that it was not pleaded in the written statement. The Tribunal has relied on decision of the Privy Council in Siddiq Mohammad vs. Mst. Saran, AIR 1930 P.C. 57 (1). The finding of fact that it was Rajender who was driving the offending tractor is fallacious. Once OP No.2 was deleted from the array of parties he did not have enter into witness box and, therefore, his denial has value. The judgments relied by the Tribunal are for establishing negligence. In this case the vehicle which was insured with the respondent was involved in the accident. The rash and negligent driving has been proved. Which is also a finding of fact by Tribunal in issue No.1.
9. The other issues are not agitated before this Court. The Tribunal has considered several judgments. The question of compensation has not been raised before this Court and therefore there is no need to discuss the same. The vehicle being insured with the Insurance Company. Even if it was held that Rajender's license was not there and that it was not Rajender who was driving the vehicle, the driving license of Krishna Yadav was already there. There is no finding of fact that Rajender did not have valid driving license whereas the Tribunal held that the vehicle was driven by Krishna Yadav. The decision of the Apex Court in National Insurance Company limited Vs. Swaran Singh and others (2004) 3 SCC 297 will come to the aid of the appellants. The Insurance Company would be liable to pay amount of Rs.98,000/- with interest. The Insurance Company would have recovery rights as the vehicle was insured for agricultural purpose and was being used for carrying bricks. The owner have got the vehicle insured with the Insurance Company.
10. In view of the above, this appeal is partly allowed. Judgment and decree stands modified to the aforesaid extent. Record and proceedings be sent back to the Tribunal forthwith.
Order Date :- 1.3.2023
DKS
