Allahabad High Court
Ramesh Chandra And Another vs Smt.Meera Devi And 2 Others on 31 January, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 167 of 2005 Appellant :- Ramesh Chandra And Another Respondent :- Smt.Meera Devi And 2 Others Counsel for Appellant :- S.C.Tewari,A.P.Shukla Counsel for Respondent :- L.P. Shukla Ii,L.P.Shukla Ii,R.C.Sharma Hon'ble Jaspreet Singh,J.
Heard Shri A. P. Shukla, learned counsel for the appellants (owner of the vehicle), Shri R. C. Sharma for (Insurance Company) respondent no.3 and Shri L. P. Shukla for the respondents no.1 and 2 (claimants).
The instant appeal has been preferred against the award dated 17.05.2004 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Sitapur in Claim Petition No.42 of 2000 whereby a sum of rupees one lakh ninety two thousand alongwith interest has been awarded in favour of the claimant-respondents no.1 and 2 by means of the aforesaid award.
Shri A. P. Shkla, learned counsel for the appellants while assailing the award has at the outset submitted that he has made two applications bearing C.M.Application No.118888 of 2019 seeking impleadment of one Janki as a respondent coupled with the fact that another application bearing C.M.Application No.118892 of 2019 for under Order 41 Rule 27 CPC to bring on record the certified copy of the judgment passed by the Chief Judicial Magistrate, Sitapur in criminal case NO.718 of 1998 decided on 15.02.2018. It has been submitted that Janki was impleaded as a defendant before the claims tribunal. However, while filing the aforesaid appeal on account of inadvertence Janki has been left out and therefore, the amendment has been necessitated. It has also been submitted by Shri A. P. Shukla that the entire controversy in the instant petition relates to, who is alleged driver of the offending tractor.
It has been submitted that the case of the claimants was that the tractor was being driven by one Janki. On the other hand, the case of the owners/appellants was that the tractor was being driven by Mohd. Shami. It has also been submitted that Mohd. Shami had filed his driving licence and it was found that the same was valid. However, the tribunal was of the view that the tractor in question was being driven by Janki who did not possess licence and consequently the liability has been saddled on the owners/appellants which has necessitated the appeal and in the aforesaid backdrop the alleged chargesheeted driver Janki has been acquitted in the criminal case and therefore it is necessary to take the judgment of the criminal court on record in terms of Order 41 Rule 27 CPC as that would be effective in delivering a judgment and shall the relevant for the case of the appellants.
Learned counsel for the appellants has further submitted that apart from the above as far as the quantum is concerned, there is not much dispute. The appellants who are admittedly the owners of the tractor which was duly insured by the United India Insurance Company Ltd. and its driver Mohd. Shami had a valid and effective driving licence. In light thereof the liability ought to have been fixed on the insurance company to indemnify the award whereas the tribunal has erred in holding that the tractor was being driven by Janki who did not possess a valid and effective driving licence and erroneously has fastened the liability on the owners.
Shri R. C. Sharma learned counsel for the insurance company has opposed the applications as well as has submitted that on the basis of the evidence available on record, the tribunal has correctly arrived at the finding that the tractor in question was being driven by Janki who did not possess a valid driving licence. In absence of any licence of Janki being on record as well as the fact that the stand of the owners of the tractor was that the accident had not taken place at all with the said tractor rather it was caused by some truck was also not established coupled with the fact that the person against whom the allegation was levelled that he did not drive the alleged tractor was caught at the site of the accident was not examined despite admittedly being the servant of the owners, hence the award is justified.
It has also been submitted that in light of the pleadings, the tribunal had framed issue no.2 to the aforesaid effect and thereafter considering the evidence on record has categorically held that the tractor was being driven by Janki which caused the accident. Consequently this being the findings of fact based on the material available on record does not require any interference.
Shri Sharma while opposing the application for amendment has also submitted that merely because Janki was not impleaded in the appeal as a party does not give a right to the appellants at this late stage to make an application for impleadment for the reason that even if he was made the party, it would not be of much help since Janki despite service before the tribunal did not put in appearance nor filed any written statement nor contested the proceedings, so to that extent even if he is made as a party that would be a formality but once the appeal has been heard, there is no need to defer the hearing even if the court decides to allow the application for impleadment.
Shri Sharma also refuted the submissions of the learned counsel for the appellants relating to the application under Order 41 Rule 27 and submitted that the aforesaid judgment which is sought to be brought on record hardly has any meaning for the reason that even assuming if Janki has been acquitted, the fact remains that the controversy before the criminal court was whether the said accused was driving the tractor rashly and negligently and this fact has not been proved beyond reasonable doubt. It has been submitted that the standard of proof which is required in the criminal case is alltogether different to the one which is required to decided in a claim petition. Since in absence of any evidence Janki has been let off by the criminal court but there is no material on record or any finding to the effect that Janki himself was not driving the tractor at all hence in light of the material already available on record, there is no clinching evidence to indicate that Janki was not driving the tractor and even though if the aforesaid judgment is taken on record that is not going to shed too much of light on the controversy which in any case has been settled by the claims tribunal while passing award in question. Thus, for the said reason, it has been submitted that the application under Order 41 Rule 27 also does not deserve any consideration.
Shri L. P. Shukla, learned counsel for the claimant-respondents has submitted that the appeal has been pending since 2005 and merely a sum of rupees fifty thousand has been released in favour of the claimants and though as far as the quantum of the accident is concerned, there is not much dispute and in the cross fire between the owners and insurance company, it is the claimants who are suffering.
The Court has heard the learned counsel for the parties and also perused the record.
At first, the relevant facts giving rise to the appellants are being noted in short. The claimant-respondents no.1 and 2 had instituted Claim Petition No.42 of 2000 with the averments that on 05.01.1998 at around 4.45 P.M. Shiv Kumar alongwith his relatives was cycling and was going towards Lalgaon. As he had reach Nepalpur at that relevant time a tractor trolley bearing number U P 34/2533 was being driven rashly and negligently, hit Shiv Kumar who received injuries and died on the spot. One Vijai Bahadur who was also alongwith Shiv Kumar also received injuries. The said tractor driver was caught at the accidental site. He identified himself as Janki and in furtherance thereof an FIR was also lodged. It is in respect of the aforesaid accident, the claim petition came to be filed.
The owners of the tractor (appellants herein) filed their written statement and took the defence that the accident was not caused by the tractor at all. It was stated that the tractor in question was being driven by one Mohd. Shami who is an experienced tractor driver. He was driving the tractor carefully at a slow speed. It is Shiv Kumar (deceased) who on account of his own negligence had come in front of a truck. Since the truck driver absconded with the vehicle. It was the tractor which was falsely implicated. Since the driver of the tractor, namely, Mohd. Shami was frightened he also ran leaving the tractor at the site. It was also stated that Janki who was a servant of the appellants and had been entrusted with the duty of safe keep of the goods which were loaded on the trolley, he was caught by the persons at the accidental site and they have unfairly framed him as the driver of the tractor.
Significantly Janki who was impleaded as the respondent no.4 before the claims tribunal did not put in appearance nor contest the proceedings. Upon the pleadings of the parties, the tribunal framed four issues. After considering the evidence, it came to the conclusion that the accident in question was caused by the tractor bearing number U P 34/2533 which led to the death of Shiv Kumar. Issue no.2 was specifically framed regarding the valid licence of the driver of the tractor in question and it was found that the tractor was being driven by Janki and no licence was produced on record. Consequently the said issue was decided against the owners. Thereafter assessing the compensation a sum of rupees one lakh ninety two thousand has been awarded by means of award dated 17.05.2004 which is under challenge in the instant appeal.
It is in this backdrop that the application bearing C. M. Application No.118888 of 2019 seeking impleadment of Janki has been considered. The appeal is of the year 2005. The only ground mentioned in the affidavit accompanying the said application is that on account of inadvertence and mistake Janki has been left out from being impleaded as respondent.
This Court finds that it is quite true that Janki was a party before the claims tribunal as opposite party no.5. It is equally true that being a party before the claims tribunal, he ought to have been impleaded as respondent in the instant appeal as well. Therefore, there is no quarrel that as far as the record is concerned, Janki ought to have been made a party. Since that has been left out accordingly this Cour finds that there is no impediment in allowing the said application and to that extent the application for impleading Janki is allowed. The learned counsel for the appellants shall carry out the necessary amendment during the course of the day itself.
Now the question arises whether it is necessary to issue notice at this stage after the Court has heard the appeal on merits. It would be found that as far as Janki is concerned, he despite service had not put in appearance before the claims tribunal nor had filed his written statement. Since the award is against the appellants who are the owners and to that extent there is no requirement to hear Janki as he neither contested nor appeared as a witness, hence this Court is not inclined to issue notice to Janki and accordingly the notice on Janki is dispensed with.
As far as application under Order 41 Rule 27 CPC is concerned, the sole ground taken by the learned counsel for the appellants is that it has been their case that Janki was merely a servant who was present with the tractor trolley for the purpose of a safe keep of the goods. However, he was not the driver of the tractor. It has been urged by Shri A. P. Shukla that though Janki was chargesheeeted in Case No.718 of 1998 yet he has been acquitted by means of judgment dated 15.02.2018. This judgment if taken on record would completely vindicate the stand of the appellants and thus the sole ground of the appellants that the tractor was being driven by Mohd. Shami who also possessed a valid licence would stand established and the finding returned by the claims tribunal on issue no.2 would be found to be erroneous. Consequently, the aforesaid judgment be taken on record.
The Apex Court in the case of Union of India Vs. Ibrahim udin reported in (2012) 8 SCC 148 after considering the scope of Order 41 Rule 27 CPC has held that in order to consider the aforesaid application, the court must apply its mind to the controversy involved and if it finds that the said document/evidence is necessary to be taken at the stage of final hearing, the Court may exercise its discretion; inasmuch as it is for the Court to consider whether the grounds as enumerated in clause 'a', 'b' and 'bb' are made out or not.
Applying the principles as mentioned in the aforesaid case, this Court finds that as far as ground 'a' is concerned, the same is not applicable. However, the ground 'b' and 'bb' are relevant. Admittedly the judgment has come only during the pendency of the appeal and this judgment could not have been brought on record by the appellants prior or at the time of filing of the aforesaid appeal. The date of the judgment is 15.02.2018 and the same has been brought on record by the application dated 04.10.2019. The judgment also relates to the fact that the chargesheeted driver Janki has been acquitted in the criminal case and it will be just and appropriate for this Court to take note of the same so that the matter is finally decided and for a just and effectual adjudication of the controversy, the same is taken on record. Accordingly, the application under Order 41 Rule 27 CPC stands allowed.
After hearing the parties, the only controversy which needs to be resolved by this Court in the instant appeal whether the finding on issue no.2 has been correctly recorded by the tribunal. In case if it is held that the tractor was being driven by Mohd. Shami then the finding on issue no.2 will have to be reversed by this Court otherwise the appeal would stand dismissed.
In order to answer the aforesaid issue involved, it will be relevant to note that the owners who have filed the written statement had categorically taken a plea denying the factum of the accident with the tractor in question. It has been their case that though the accident did not take place with the tractor but nevertheless the fact that Janki and Mohd. Shami (as alleged) are said to be present at the time of the accident is admitted. The specific case of the claimants has been that the accident was caused by the tractor which was being driven by Janki who was caught by the persons at the accidental site. It is Janki who was chargesheeted and have also faced trial in the criminal case. In the present case at hand, the claimants had also produced an eye witness, namely, Shanti Swaroop who clearly deposed that he was riding his bicycle behind Shiv Kumar (deceased). He had also deposed that it was the tractor bearing number U P 34/2533 which was being driven rashly and negligently which hit Shiv Kumar. He had clearly stated that at the site the persons had apprehended Janki who was driving the tractor. None of the persons either as the claimants or their witnesses ever identified or gave the statement regarding the presence of Mohd. Shami at the accidental site.
The presence of Mohd. Shami at the accident site emerges only from the stand taken by the owners. But one fact is certain and admitted to the parties that as far as Janki is concerned, he was definitely present at the site. It is also admitted to the appellants that Janki was their servant and he was entrusted with the safe keep of the goods loaded in the tractor trolley. Now the fact in question whether the tractor was being driven by Mohd. Shami or by Janki is to be considered. Mohd. Shami has been examined as a witness by the owners who gave a statement that he was driving the tractor at the time of accident. He further brought his licence on record which otherwise is valid and effective. It is further stated in his statement that at the time of accident he was frightened and he left the tractor and ran away. On the other hand, it would be seen that the claimants and the eye witness clearly identified Janki who was later arrested and who obtained bail and faced trial.
At no point of time, any clinching statement was brought on record to indicate that Janki was not driving tractor at all. The owners could have very easily examined Janki as a witness. However, the same has not been done. At this stage, it will be relevant to mention that even the judgment which has been passed by the criminal court does not indicate or gives the finding that Janki was not driving the tractor. The judgment and its evidentiary value is only for the limited purpose to state that Janki was acquitted. The acquittal in a criminal case could be on the ground that Janki may not have been there or for the reason that even if he would have been there yet the rash and negligent driving could not be proved beyond reasonable doubt and therefore he was acquitted.
Be that as it may, though the judgment passed by the criminal court does not deal with the issue and merely since the prosecution could not lead evidence therefore Janki has been acquitted in absence of any evidence led, beyond reasonable doubt, to convict him and that by itself will not give a conclusive finding which may persuade this Court to hold that Janki was not driving the tractor.
There is another reason to hold as such. At the time of institution of the claim petition, Janki was impleaded as opposite party no.5. The owners had filed their written statement and Janki being their servant was under their control in the sense that he was in their employment. At no point of time, any categoric effort was made by the appellants to produce Janki as a witness or even to make him file the written statement where he would state categorically that he was not driving the tractor in question. Since the presence of Mohd. Shami is controversial whereas there is no denial of the fact that Janki was caught by the persons present at the accident site and that he was arrested and enlarged on bail. Subsequently, he was chargesheeted and faced trial and despite the aforesaid, he did not come forward either as is own witness and none of the respondents summoned Janki to testify that he was not driving, this Court finds that the finding returned by the tribunal based on the eye witness account is more plausible and worthy of reliance. The statement of the owners did not have much evidentiary value on the aforesaid point for the reason that they themselves were not present.
In light of the aforesaid discussions, this Court finds that the finding returned by the tribunal on issue no.2 is based on proper appreciation of evidence available on record. Merely because another view may be possible, this Court is not inclined to upset the finding regarding issue no.2.
Learned counsel for the claimants Shri L. P. Shukla has submitted that the tribunal while passing the award though has granted interest but has not clarified the rate of interest. It has been mentioned that rate of interest as prevalent in the National Banks shall be awarded. The rate at the time of the award and prevalent as of today, there is huge disparity and it has been prayed that this Hon'ble Court may clarify and provide reasonable rate of interest.
Considering the totality of the facts and circumstances, this Court finds that the appeal must fail and the award passed by the Motor Accident Claims Tribunal dated 17.05.2004 shall stand affirmed with the modification that it shall carry interest @ 7.5% per cent per annum from the date of application till the date of its payment.
In the result, the appeal fails and is consequently dismissed. There shall be no orders as to costs. The award passed by the tribunal dated 17.05.2004 is affirmed subject to the above modification. The appellants shall have six weeks' time to deposit the remaining sum before the tribunal concerned to be released in favour of the claimants. Any amount deposited in this Court shall also be remitted to the tribunal to be released in favour of the claimants. The record shall also be remitted to the tribunal concerned within a period of two weeks from today.
Order Date :- 31.1.2020 ank