Allahabad High Court
Daya Shankar Mishra vs Virendra Kumar Singh And Others on 2 May, 2024
Author: Vipin Chandra Dixit
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:78947
Court No. - 9
Case :- FIRST APPEAL FROM ORDER No. - 2303 of 2009
Appellant :- Daya Shankar Mishra
Respondent :- Virendra Kumar Singh And Others
Counsel for Appellant :- Vinay Kumar Pathak
Counsel for Respondent :- S.K. Tiwari,Angira Prasad,Nagendra Kumar Srivastava
Hon'ble Vipin Chandra Dixit,J.
Heard Sri V.K. Pathak, learned counsel for the appellant, Sri Angira Prasad, learned counsel appearing on behalf of claimants-respondents Sri Nagendra Kumar Srivastava, learned counsel appearing on behalf of respondent no. 3 Insurance Company and perused the record.
This first appeal from order has been filed by the appellant/owner of the vehicle against the judgment and award dated 12.12.2008, passed by Motor Accident Claims Tribunal / Additional District Judge / Special Judge (E.C. Act), Basti, in M.A.C.P. No. 9 of 2002 (Virendra Kumar Singh and Others vs. Daya Shankar Mishra and Others) by which compensation of Rs. 93,000/- along with 7 % interest has been awarded in favour of claimants-respondents and the liability has been fixed upon the appellant being owner of the offending vehicle.
It is submitted by learned counsel for the appellant that the vehicle in question / jeep of the appellant was duly insured with the respondent no. 3 Insurance Company at the time of accident and all the papers were valid and effective and the claims tribunal has erred in fixing the liability upon the appellant on account of breach of policy. It was the specific case of the appellant before the claims tribunal that the jeep of the appellant was driven by one Sunil Kumar at the time of accident and his driving licence was produced before the claims tribunal. The claims tribunal has committed gross illegality in deciding issue no. 2 holding that one Jhamad Chaudhery was driving the vehicle who has no driving licence. Jhamad Chaudhery, who was impleaded as opposite party no. 2 in the claim petition was appeared before the claims tribunal as DW-1 and has stated on oath that he was not driving the jeep at the time of accident. The evidence of DW-1 was disbelieved by the claims tribunal without assigning any reason. The claims tribunal itself has recorded the finding that the Insurance Company has failed to produce any evidence that there was any breach of terms of policy condition. The claims tribunal has relied the evidence of claimants that at the time of accident Jhamad Chaudhery was not the driver, whereas, the claimants were not present at the place of accident. The findings recorded by the claims tribunal while deciding issue no. 2 that the vehicle was driven by Jhamad Chaudhery is perverse and against the evidence available on record.
Learned counsel appearing on behalf of respondent no. 3 Insurance Company submits that the claims tribunal has rightly decided issue no. 2 holding that the jeep was driven by Jhamad Chaudhery and the liability has rightly been fixed upon the appellant who is owner of the vehicle.
Considered the rival submissions of learned counsel for the parties and perused the record.
Admittedly, the first information report was lodged regarding accident but no charge sheet has been submitted by the I.O. against the driver. It was the case of owner of the vehicle that at the time of accident his jeep was driven by Sunil Pandey who had valid driving licence. The insurance Company has not led any evidence that the vehicle was not driven by Sunil Pandey. Jhamad Chaudhery was impleaded as opposite party and he appeared before the claims tribunal and has stated on oath that he was not driving the jeep at the time of accident.
In absence of any cogent evidence that who was driving the jeep at the time of accident, the claims tribunal has committed gross illegality in deciding issue no. 2 that Jhamad Chaudhery was driving the jeep in absence of any cogent evidence. The insurance of the jeep at the time of accident has not been denied by the Insurance Company.
The claims tribunal has recorded perverse finding while deciding issue no. 2 the Jhamad Chaudhery was driving the vehicle ignoring the evidence that one Sunil Pandey was the driver who has the valid driving licence. Finding recorded by claims tribunal in respect of driving licence is perverse and is set aside.
In view of above, the first appeal from order is allowed and the judgment and award of the claims tribunal dated 12.12.2008 is modified to the extent that respondent no. 3 Insurance Company is liable to pay the awarded amount to the claimants.
The appellant is entitled to recover the amount which has been deposited by appellant in compliance of order of this Court dated 03.03.2009 from the Insurance Company.
Interim order, if any, stands discharged.
Order Date :- 2.5.2024
sailesh
