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2004 DIGILAW 365 (UTT)

Mohd. Mozammil v. Rabina Begum

2004-12-10

B.S.VERMA, IRSHAD HUSSAIN

body2004
JUDGMENT Hon'ble B.S. Verma, .J.-This appeal under Section 173 of the Motor Vehicles Act (in short 'the Act') is directed against the judgment and award dated 2.6.1999 passed by Motor Accident Claims Tribunal/II Addl. District Judge Nainital (for short 'the Tribunal'), in Claim Petition No. 101 of 1994, whereby compensation of Rs.1,35,000/- alongwith interest @ 9% per annum was awarded against owner and driver of the vehicle. Aggrieved, the owner has come up in appeal mainly on the ground Kamal Singh was not driver at the relevant time and the vehicle being duly insured, the Insurance Company was liable for compensation. 2. Mahfooz Ahmad, aged 25 years and earning Rs.2,500/- per month lost his life in a motor vehicle accident which occurred on 8.3.1994 at 11 p.m. near Bara Patthar on Nainital-Kaladhungi road, Mallital, Nainital. According to the claimants, the deceased was hit by offending Truck No. U.P. 02/5317 due to rash and negligent driving by its driver. Hence the claim petition was filed by the dependents/legal heirs of the deceased claiming Rs.15,00.000/as compensation. 3. Kamal Singh, driver of the truck, did not contest the claim petition, therefore, case proceeded ex-parte against him. 4. The .owner-appellant admitted the .ownership of the vehicle. In the written statement, he asserted that the truck was insured with National Insurance Company far the period 15.9.1993 to 14.9.1994, but denied that Kamal Singh was ever engaged/employed as driver by him. It was also pleaded that his vehicle was always driven by an experienced driver having a valid driving licence and that the liability for compensation rests on the Insurance Company. 5. The insurer of the vehicle filed its written statement alleging therein that the owner was required to prove insurance of the vehicle and that the vehicle was being driven by a person having valid driving licence and there were valid papers in respect of the vehicle. Quantum of compensation was also disputed. 6. Learned Tribunal framed relevant issues in the case. It held that the accident occurred due to rash and negligent driving by the driver of the offending truck. It held that there was no evidence to show that Kamal Singh, driver, was having a valid driving licence at the time of accident, hence the Tribunal fastened liability to pay compensation an the .owner and driver of the vehicle. Ultimately, the Tribunal awarded compensation of Rs.1,35,000/alang with interest @ 9% per annum. 7. It held that there was no evidence to show that Kamal Singh, driver, was having a valid driving licence at the time of accident, hence the Tribunal fastened liability to pay compensation an the .owner and driver of the vehicle. Ultimately, the Tribunal awarded compensation of Rs.1,35,000/alang with interest @ 9% per annum. 7. It was submitted an behalf of the appellant the Kamal Singh was wrongly held to be driver of the truck, therefore, the finding is contrary to the evidence an record. The argument .of the learned counsel is not acceptable. In the written statement, filed by the appellant, it was categorically urged that Kamal Singh was never under his employment as driver; but he could not disclose as to who was driver of his truck. Moreover, it was not disputed that a case was registered against Kamal Singh, who was charge-sheeted by the police. Kamal Singh, driver was arrested by the police and the .offending Truck was also seized. D.W1 Mohd. Mozammil in his cross-examination admitted that he gat the truck released. The appellant far the first time disclosed in his evidence as D.W1 that the truck was being driven by his elder brother Mohd. Farookh. Had there been an iota of truth in his statement, there was no reason why the name of his brother found no mention in the written statement. The appellant also could not dare to produce Mohd. Farookh, the alleged driver, in the witness box. Moreover, he could not explain as to why Kamal Singh was charge-sheeted, when he was not the driver of the truck at the relevant time. Kamal Singh would have been the best witness to testify before the Tribunal that he was not driving the vehicle, but he was also not produced. Learned counsel for the appellant submitted that the case against Kamal Singh ended in acquittal, therefore, there was no effect of the charge-sheet submitted against him. The submission is misconceived. Kamal Singh was acquitted vide judgment and order dated 18.12.1998 an the ground that the material witnesses turned hostile to the prosecution. There is another important circumstance which goes against the appellant is that an technical examination of the vehicle, police found blood-stains an the rear wheel and rim of the truck. This circumstance further found support from the entries made in the General Diary. There is another important circumstance which goes against the appellant is that an technical examination of the vehicle, police found blood-stains an the rear wheel and rim of the truck. This circumstance further found support from the entries made in the General Diary. The claimants have examined P.W2 Ramjan, who has testified that an 8.3.1994, at 11 p.m., he went to graveyard. He saw a bay coming from opposite direction on his left side. In the meantime, the offending truck appeared, which hit the said boy. The witness had given ocular account of the accident in a natural manner. The testimony of P.W.2 coupled with the prompt F.I.R., Post Mortem Report, charge-sheet submitted against Kamal Singh by the police is sufficient to hold that Kamal Singh was driving the truck at the relevant time. On the basis of evidence, the Tribunal rightly held that the offending truck was driven by Kamal Singh and the conclusion arrived at by it does not require any interference. 8. Another question for consideration before us is whether liability for compensation can be fastened upon the driver and owner, when the vehicle was insured. The insurance of the truck with National Insurance Company is not disputed. The owner of the vehicle (appellant) denied that Kamal Singh was not the driver of the truck. therefore, it was incumbent upon him to have shown that the driver was having a valid driving licence so as to shift the liability for compensation on the Insurance Company. The owner has failed to discharge the burden that the driver of the vehicle was having a valid driving licence. Admittedly, Kamal Singh, the driver, did not come forward to contest the case before the Tribunal. The owner-appellant failed to substantiate his contention that the truck was not driven by Kamal Singh, rather the conduct of the owner militates against him. Therefore, the Tribunal rightly held both the owner and driver of the vehicle liable to pay compensation. The owner of the vehicle got the truck released in his favour after the same was seized due to accident and driver Kamal Singh was apprehended by the police, but even then he went on saying on oath that Kamal Singh was never engaged as driver by him. The owner of the vehicle got the truck released in his favour after the same was seized due to accident and driver Kamal Singh was apprehended by the police, but even then he went on saying on oath that Kamal Singh was never engaged as driver by him. In view of the peculiar circumstances of the case, particularly when the driver of the truck fdid not turn up to contest the case and the owner of the truck had not come with clean hands before the Tribunal, the Tribunal committed no illegality or infirmity in fastening the liability on the owner and the driver of the vehicle both. 9. Learned counsel for the appellant lastly submitted that in any view of the matter, the Insurance Company was liable to pay compensation. Reliance was plcaced on a decision of the Apex Court in the Case of National Insurance Company Limited v. Swaran Singh and others [(2004) 3 S.C.C. 297]. The ratio of the reported case cannot be disputed. But in the instant case, the owner himself disowned the driver Kamal Singh and he failed to produce any valid driving licence on record, therefore, in the circumstances of the case, the burden of proof shifted on the owner, which he failed to discharge, as mentioned earlier. The said case-law is not helpful to the appellant. 10. The appeal has no force and is liable to be dismissed. 11. The appeal is dismissed. The judgment and award dated 2.6.1999 is affirmed. No order as to costs. 12. The amount in deposit with this Court be remitted to the Motor Accident Claims Tribunal concerned, for being paid to the claimants.