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2024 DIGILAW 617 (ALL)

National Insurance Co. Ltd. v. Shanti Devi

2024-02-27

ARUN KUMAR SINGH DESHWAL

body2024
JUDGMENT Arun Kumar Singh Deshwal, J. Heard learned counsel for the appellant. No one has appeared on behalf of the respondents even in the revised list. 2. Present appeal has been filed with the following main relief: "To allow this appeal and set aside and quash the impugned award dated 05.01.2001, passed by the Ist A.D.J./M.A.C.T. Sultanpur, in Claim Petitioner No.153/1996 (Smt. Shanti Devi and Ors. v. Ram Bibhooti Singh and Ors.)" 3. The facts of the present case are that that the claimant/respondents no.1 to 6 had filed claim petition mentioning therein that husband of the respondent no.1/ Rajdev was going on his cycle to Sultanpur on 20.09.196 at 11:00 am. Thereafter, he suddenly dashed by a jeep bearing no. UP 44 A 3901 (hereinafter referred to as "offending vehicle') and because of this accident, husband of respondent no.1, namely, Rajdev had died. 4. In support of the aforesaid claim, the claimants have also filed the FIR dated 20.09.1996 lodged by one Shambhu Prasad at 01:35 pm regarding the aforesaid accident. Apart from the above FIR, the claimants have also filed charge sheet dated 20.11.1996 in the aforesaid case as the same was filed against the owner of the offending vehicle (respondent no.7). The respondent no.1/Shanti Devi who is the wife of the deceased Rajdev examined herself as PW-1, though she was not the eyewitness of the incident, however, PW-2 appeared before the learned The Motor Accidents Claims Tribunal (in short the 'Tribunal') claiming himself as eye-witness of the accident. In his statement, though, he has supported the incident of accident caused by the offending vehicle but he also stated that he could not recognize the driver of vehicle because after the accident, the driver of the offending vehicle had run away leaving the offending vehicle on the spot. 5. The WS (written statement) was also filed by the owner of the offending vehicle, namely, Ram Bibhooti Singh (respondent no.7) as well as driver of the vehicle, namely, Vijay Shanker Yadav (respondent no.8) in which respondents no.7 and 8 admitted that the offending vehicle was being driven by the respondent no.8 at the time of accident. 6. Present appellant/ the National Insurance Co. Ltd. has also filed WS denying the aforesaid accident but did not pleaded anything in its WS as to who was the driver of the offending vehicle at the time of accident. 6. Present appellant/ the National Insurance Co. Ltd. has also filed WS denying the aforesaid accident but did not pleaded anything in its WS as to who was the driver of the offending vehicle at the time of accident. Though, the driving license of the respondent no.8 was also filed by the claimants. The learned Tribunal vide impugned order dated 05.01.2001 allowed the claim of the claimants and directed the present appellant, who was the insurer of the offending vehicle, to pay the compensation of Rs. 3,84,808/- to the claimants, along with interest @ 6%. 7. Counsel for the appellant has submitted that the amount awarded is absolutely erroneous as the same was passed without considering the evidence on record and also ignoring the fact that the charge sheet was filed against the respondent no.7 who was the owner of offending vehicle and he did not produce his driving license, while in the claim petition, it is alleged that the respondent no.8 was the driver. It was further contended by the counsel for the appellant that PW-2 in his statement did not state that while driving the vehicle, the driver of the offending vehicle was negligent which is the basic requirement for awarding the compensation under Section 166 of Motor Vehicle Act, 1988 (in short M.V. Act). 8. It was lastly contended by the counsel for the appellant that if any liability arises, that will be of the owner of the offending vehicle, against whom the charge sheet has been filed because the owner of the offending vehicle has not filed any driving license. In support of his contention, counsel for the appellant has also relied upon the judgment of Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. Gian Chand and Others 1998 Vol-I T.A.C. 36 (S.C.), in which the Hon'ble Supreme Court observed that if the driver of the offending vehicle does not have a driving license, then there will be no liability upon the insurance company to pay the compensation and the liability will be of the owner of the offending vehicle. 9. Ltd. v. Gian Chand and Others 1998 Vol-I T.A.C. 36 (S.C.), in which the Hon'ble Supreme Court observed that if the driver of the offending vehicle does not have a driving license, then there will be no liability upon the insurance company to pay the compensation and the liability will be of the owner of the offending vehicle. 9. Counsel for the appellant has also relied upon another judgement of the Hon'ble Supreme Court passed in the case of Lachoo Ram and Other v. Himachal Road Transport Corporation 2014 Vol-I T.A.C. 724 (S.C.) in which the Hon'ble Supreme Court observed that unless there is substantial material on record to prove that the accident was caused by rash and negligent act of driver, the compensation under Section 166 of the M.V. Act cannot be awarded because the basic foundation for awarding compensation under Section 166 of the M.V. Act is the negligent driving. 10. After hearing the contention of counsel for the appellant and upon perusal of material on record, it is clear that though the charge sheet was filed against the respondent no.7 being the owner and driver of the offending vehicle but the claim petition was filed with the specific averment that the offending vehicle was being driven by the respondent no.8 and respondent no.7 is the owner of that vehicle. 11. Even in the written statement filed by the respondents no.7 & 8 jointly, it was clearly stated that at the time of accident, the offending vehicle was being driven by respondent no.8 and not by respondent no.7 and driving license of the respondent no.8 was also filed before the learned Tribunal but this fact was not denied by the insurance company in its written statement and no positive averment was also made in the written statement of insurance company that the vehicle in question had been driven by the respondent no.7, not by the respondent no.8. In the written statement of insurance company, the only averment was that the offending vehicle was not insured with him and the driving license of the respondent no.8 filed by the claimant is forged but during argument, counsel for the insurance company has stated that the charge sheet was filed against the respondent no.7 who is the owner of the vehicle, therefore, it would be presumed that the owner of the vehicle himself was driving the vehicle at the time of the accident, therefore, there is liability of owner of vehicle to pay the compensation and not of the insurance company. 12. Upon perusal of the statement of PW-2, it is clear that he was the eye-witness of the accident in question, though, he has not specifically mentioned that the driver of the offending vehicle was negligent while driving the vehicle but so far as the negligent driving of vehicle is concerned, the charge sheet filed by the police in the present case is sufficient evidence of negligent driving by the driver of the offending vehicle. 13. Rule 212 (2) of U.P. Motor Vehicles Rules, 1998 (hereinafter referred to as 'Rules of 1998') provides that medico legal report papers submitted by the Investigating Officer shall be admitted as evidence without formal proof. Rule 212 of the Rules of 1998 read as under:- "212. Method of recording evidence - (1) The Claims Tribunal shall, as examination of a party or a witness proceeds, make a brief memorandum of the substance of what is deposed and such memorandum shall be written and signed by the Claims Tribunal and shall form part of the record : Provided that the evidence of any medical witness shall, as nearly as may be, be taken down word for word : Provided further that where the Claims Tribunal is unable to make a memorandum it shall cause the reason of such inability to be recorded and shall cause the memorandum to be made in writing from its dictation. (2) The copies of medico-legal reports, post-mortem reports, papers relating to reports submitted by Investigating Police Officer or any other person which the Claims Tribunal deems appropriate, shall be admissible in evidence without formal proof thereof. However, the witness relating to these documents and papers may be examined on oath if required necessary in the circumstances of the case." 14. (2) The copies of medico-legal reports, post-mortem reports, papers relating to reports submitted by Investigating Police Officer or any other person which the Claims Tribunal deems appropriate, shall be admissible in evidence without formal proof thereof. However, the witness relating to these documents and papers may be examined on oath if required necessary in the circumstances of the case." 14. From the perusal of Rule 212 of the Rules of 1998, it is clear that if the charge sheet is filed against the offending vehicle under Section 279/304A/427 IPC and Section 187 of M.V. Act, then it would be presumed that the offending vehicle was being driven negligently and no further proof is required. Even otherwise, in the written statement of insurance company/present appellant, it was not the case that the vehicle was not being driven by respondent no.8 but by the respondent no.7 and even during the argument, counsel for the insurance company has not argued before the Tribunal that liability of owner of offending vehicle will come up because he has not filed any driving license. On the contrary, it was pleaded in the written statement and also argued that the driving license filed by the respondent no.8 (driver of the offending vehicle) was forged, though, the same was subsequently found to be correct. 15. In view of the above, this Court is of the opinion that there are substantial evidence on record that accident was caused due to negligent driving of the offending vehicle which was insured with the present appellant/insurance company, therefore, this Court does not find any illegality or infirmity in the impugned award passed by the learned Tribunal, hence the presence appeal is liable to be dismissed and is accordingly dismissed. 16. It is further directed that as the entire amount has already been deposited by the claimant, if not already paid, the same shall be released to the claimant/respondents.