Allahabad High Court
Rajesh Kumar vs Smt.Nanhakai And Ors. on 3 June, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED A.F.R. Court No. - 24 Case :- FIRST APPEAL FROM ORDER No. - 509 of 2013 Appellant :- Rajesh Kumar Respondent :- Smt. Nanhakai and others Counsel for Appellant :- Ashish Verma,Rajesh Kumar Shukla,Shakeel Ahmad Ansari Counsel for Respondent :- Rajesh Trivedi,Subhash Chandra Gulati Hon'ble J.J. Munir,J.
1. This is an owner's appeal, arising out of a judgment and award passed by the Motor Accident Claims Tribunal, awarding compensation to the claimants, but relieving the insurers of their liability.
2. The accident giving rise to this claim happened on 03.07.2009 at about 12:00 noon within the local limits of Police Station Mohanlalganj. The deceased, Ram Kumar alias Kunware was proceeding on a bicycle along with his daughter. As he reached the Dahiar Turn, a motorcycle bearing Registration No. UP-32CQ-7136 proceeded from the side of Mohanlalganj, which was driven at a high speed and negligently. It hit Ram Kumar, leading to grievous injuries. He was rushed to the Government Hospital, Mohanlalganj, but before any aid could be extended, he passed away. The claimants are six in number. Smt. Nanhakai is the deceased's widow, whereas Rupesh, Dileep and Sandeep are his sons. Km. Mamta and Km. Renu are the deceased's daughters. When the cause of action arose, out of the five children of the deceased, Rupesh alone was a major, aged 20 years. Dileep was aged 17 years, whereas Sandeep, 15. Km. Mamta and Km. Renu were aged 12 years and 8 years respectively. All the six claimants are arrayed as respondent nos. 1 to 6 to this appeal. The owner of the motorcycle is the appellant, whereas respondent no. 7, the National Insurance Company Limited through its Zonal Manager, Nawal Kishore Road, Hazaratganj, Lucknow is arrayed as respondent no. 7.
3. The claim petition was brought by the six respondents to this appeal, who shall hereinafter be called the 'claimants', arraying Rajesh Kumar and the National Insurance Company Limited as the two opposite parties. Rajesh Kumar shall hereinafter be referred to as 'the owner' whereas the National Insurance Company Limited aforesaid shall be called 'the insurers', unless the context necessitates a particular reference.
4. The claimants asked for a compensation in the sum of Rs.15,30,500/-. The Tribunal, after trying the petition, has allowed it in part, awarding a compensation of Rs.3,16,800/- with 7% interest from the date of the award (for short, 'the impugned award') until realization. The awarded compensation has been directed to be paid by the owner, relieving the insurers of their liability.
5. Aggrieved, this appeal has been preferred by the owner.
6. Eschewing unnecessary details about the owner's and the insurers' case pleaded in the written statement, it would suffice to record that the owner has denied the accident and said that he reached the site of accident after it had already taken place. He stopped by the wayside upon coming across the accident. He was surrounded by the locals and implicated as the perpetrator. The stand of the owner is not to the effect that he was not the one who was riding the offending motorcycle. To the contrary, the owner's stand is that his vehicle was not involved in the accident, but while riding it, he chanced upon the site of accident. His vehicle was duly insured with the insurers and he was riding it with a valid and effective driving licence. His registration certificate and all necessary documents were in order. The owner raised a plea that liability, if any, would be that of the insurers.
7. The insurers put in their written statement, where they not only denied the factum of the accident or the involvement of the offending vehicle, but also pleaded that the claimants have neither supplied a copy of the cover note or the policy, so as to enable the insurers to ascertain whether the offending vehicle was insured with them. It was also stated in the insurers' pleadings that the claimants had not served a copy of the First Information Report, the charge-sheet in the criminal case and the site-plan. Also, a copy of the injury report, postmortem report etc. were not available in order to enable the insurers to ascertain the cause of death, and if it was referable to the injuries sustained by the deceased. A plea was also raised on behalf of the insurers that the claimants have neither impleaded the rider, who was operating the motorcycle at the relevant time or filed a copy of his driving license. Thus, apart from raising a plea of non-joinder of necessary party, that is to say, the rider, the crux of the insurers' case was that the motorcycle was operated by a person different from the owner, Rajesh Kumar.
8. It must be remarked here that the name of the motorcyclist operating the offending vehicle, has figured later on in the evidence as one Satish Kumar, a man different from its owner, Rajesh Kumar.
9. On the pleadings of parties, the Tribunal framed the following issues (translated into English from Hindi) :
(1) Whether on 30.07.2009 at about 12:00 noon at Mohanlalganj, Lucknow when the deceased, Ram Kumar @ Kunware was riding his bicycle along with his daughter, the rider of motorcycle bearing Registration No. UP-32CQ-7136, riding it at a high speed and negligently, hit the bicycle, that led the deceased to sustain injuries, causing his death by the time he reached hospital?
(2) Whether on the date and time of the accident, the offending motorcycle No. UP-32CQ-7136 was insured with opposite party no.2 and its insurance was valid and effective?
(3) Whether on the date and time of the accident, the rider of the offending motorcycle No. UP-32CQ-7136 was in possession of a valid and effective driving licence?
(4) Whether the accident occurred on account of contributory negligence of the deceased riding the bicycle?
(5) Whether the rider of the motorcycle is a necessary party and his non-impleadment to the claim petition makes it bad for non-joinder?
(6) Whether the claimants are entitled to any relief? If yes, from whom and how much?
10. In support of the claim, the claimants led documentary evidence, which includes a copy of the FIR relating to Crime No. 417 of 2009, under Sections 337, 338, 304, 427 IPC, Police Station Mohanlalganj, District Lucknow, Paper No. C5/2, and a photostat copy of the postmortem report, Paper Nos. C5/3 and 5/4. In addition, more documentary evidence was filed through a subsequent list, Paper No. C16 that includes a certified copy of the charge-sheet, a certified copy of the check FIR, a certified copy of the site-plan, a certified copy of the accident inspection report, a certified copy of the postmortem report, registration certificate of the offending motorcycle and the insurance papers. The insurers filed a certified copy of the deceased's family register, a photostat copy of the ration card, a copy of an order dated 28.12.2009 passed by the Circle Officer, Mohanlalganj. Along with these papers, a photostat copy of Rajesh Kumar's driving licence was also filed. The claimants examined Nanhakai as PW-1, the widow of the deceased and Km. Renu, the deceased's daughter, who was the pillion rider of the ill-fated bicycle, as PW-2. No oral evidence was led on behalf of the owner or the insurers.
11. Before commencement of hearing in the appeal, an application under Order XLI Rule 27 CPC was made on behalf of the owner, seeking to bring on record the original insurance policy and the driving licence. Before the application was considered and allowed, the learned Counsel for the insurers was required to seek instructions and verify the genuineness of the owner's driving licence and the insurance policy relating to the Insurance Company. This opportunity was granted vide order dated 27.11.2021. The application to admit additional evidence was allowed vide order dated 06.12.2021. Both the documents, that is to say, the insurance policy and the driving licence, were admitted to record and marked as Appellant Exhibits Nos. A1 and A2. The hearing of the appeal proceeded immediately thereafter and judgment was reserved.
12. Heard Mr. Rajesh Kumar Shukla, learned Counsel for the owner, Ms. Pooja Arora, Advocate holding brief of Mr. S.C. Gulati, learned Counsel appearing on behalf of the insurers and Mr. Rajesh Trivedi, learned Counsel for the claimants.
13. The learned Counsel for the owner has argued that his motorcycle was never involved in the accident and it was a case of 'hit and run'. He happened to reach the scene of occurrence riding his motorcycle, the offending vehicle and was framed in the case by the locals. This issue has been examined by the Tribunal and the evidence of PW-2, Renu, who was the pillion rider of the ill-fated bicycle along with the deceased, has been believed to hold the owner's motorcycle as the offending vehicle. The Tribunal has also concluded, from the evidence of PW-2, that the offending vehicle was being driven at a high speed and negligently, which resulted in the fatal accident. The Tribunal has also looked into the site-plan to hold it to be a case of the motorcyclist's negligence.
14. This Court has looked into the evidence of PW-2 as well, who is a very important witness, and must say that the conclusions of the Tribunal on the first issue cannot be faulted. Rather, the owner does not dispute the fact that he was riding the offending vehicle and chanced upon the accident, which caused him to stop as an onlooker. His case is that he was implicated, because the real perpetrator had fled. There is not a shred of evidence to suggest any case of false implication or there being another vehicle that did a 'hit and run'. The finding returned by the Tribunal on the first issue, that the offending vehicle is the one responsible for the accident, therefore, is flawless and must receive our affirmation.
15. It is the second and the third issues, where there has been serious contention between parties about the fact whether the offending vehicle was driven by the owner, that is to say, Rajesh Kumar, or by another man called Satish Kumar, son of Sundar Lal. This name does not figure in the pleadings of the insurers, but has been mentioned in the FIR lodged by the deceased's son, Rupesh.
16. The contention of the learned Counsel for the owner is that the mention of Satish Kumar's name in the FIR is a matter of incorrect information, inasmuch as the informant was not an eye-witness. He lodged the information on the basis of whatever was conveyed to him by his sister, or may be, some other person present at the site of the accident. The FIR was lodged very promptly, that is to say, within an hour and a half of the occurrence. In the circumstances, there is a strong possibility about the name of the rider being mistaken or misunderstood at any step in the communication from the eye-witness to the informant. Learned Counsel for the owner emphasizes that the Police, after ascertainment of the identity of the offending vehicle's rider, charge-sheeted the owner and not Satish Kumar, who is, in no way, connected to the accident. It is submitted that the owner does not dispute his presence on the spot though he denies the involvement of his vehicle in the accident, a fact not believed by the Tribunal. As such, to hold that it was some Satish Kumar who was driving the offending vehicle and not the owner, is acknowledgment of a patently unbelievable stand by the insurers to wriggle out of their liability under the policy.
17. The contention of the learned Counsel for the insurers, on the other hand, is that even if the owner had a valid driving licence and an insurance policy also, purchased from them, that was valid and effective on the date of accident, the insurers would nevertheless not be liable, because the vehicle was driven by another man called Satish Kumar. According to the learned Counsel for the insurers, it has not been shown that Satish Kumar too had a valid and effective driving licence on the date of accident. It is also argued that the claimants are in collusion with the owner, inasmuch as in the FIR lodged by the deceased's son, the rider of the offending vehicle has been clearly named as Satish Kumar with his parentage, but later on, the Police, during investigation, have deliberately framed the owner as the one responsible for the fatal accident. Learned Counsel for the insurers submits that it is clearly a case of an unauthorized man called Satish Kumar driving the owner's vehicle without a valid driving licence and causing the accident, but later on, in order to saddle the insurers with the liability, the owner in collusion with the claimants and the Police has taken the responsibility upon himself.
18. This Court has considered the rival submissions on the point and carefully perused the record.
19. The Tribunal in its finding has relieved the insurers of the liability firstly on the ground that a photostat copy of the driving licence and the insurance policy, besides the registration certificate, have been filed that are not even attested.
20. The other ground that has weighed with the Tribunal to relieve the insurers of their liability is an acceptance of the insurers' case that the offending vehicle was driven by a man, going by the name Satish Kumar and not the owner. As already noticed, a case of collusion between the owner, the claimants and the Police has been mooted by the insurers to shake off their liability under the insurance policy. So far as the question of admissibility of a photostat copy of the driving license or the insurance policy, or for that matter, the registration certificate is concerned, the Tribunal has gone wrong in holding the same to be inadmissible. Once photostat copies of these documents were produced by the claimant or even if not produced, it was the duty of the Insurance Company to have verified the existence of an insurance policy issued by them in relation to the offending vehicle and also the genuineness of the license, upon which reliance was placed by the claimants. Of course, so far as the driving license is concerned, the burden of the Insurance Company to verify its genuineness would not be in derogation of their case that the vehicle was not driven by the owner, whose license was put in evidence, but by another man Satish Kumar. Likewise, in case of the registration certificate, it was the duty of the insurers to have verified the fact whether the offending vehicle was plying under a valid registration certificate, issued by the competent Registration Authority. The claimants cannot be subjected to the burden of producing and proving the original or attested copies of these documents. In this connection, reference may be made to the decision of the Supreme Court in National Insurance Company Ltd., New Delhi v. Jugal Kishore and others1 which was a motor accident claim case arising under the Motor Vehicles Act, 19392. Apart from the principles laid down there, specific to Section 95 of the Act of 1939, a principle of wide import in the matter of burden of proof regarding production of the Insurance Policy and the Driving License in an accident claim case was stated thus :
10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised.
(Emphasis by Court)
21. Following the aforesaid decision of the Supreme Court, this Court in Baij Nath Chaudhary v. Sardar Avtar Singh and others3 held that it was the duty of the insurers to rebut and/or lead evidence to establish that the vehicle was not insured with it or that the driver's license was fake. The objection, in any case, is no longer available, inasmuch as the originals of the driving license and the insurance policy were produced before this Court and sought to be admitted in evidence through an application under Order XLI Rule 27 CPC. That application has been allowed and both the documents have been admitted to record and marked as exhibits. Therefore, before this Court, it cannot be contended in any case that the offending vehicle was not insured with the insurers or that the driving license produced was fake. In fact, no evidence to dispute any of the papers regarding the offending vehicle has been led by the insurers. But, the vehicle plied on authorized papers, notwithstanding the insurers' case about the motorcycle being driven by Satish Kumar, a person other than the owner, who is alleged by the claimants to be operating the motorcycle, has to be examined. It is so because the Tribunal has opined that it was not the owner who was driving the motorcycle on the fateful day, but Satish Kumar, whose name has figured in the First Information Report. About Satish Kumar, if he be the rider operating the offending motorcycle, not an iota of evidence has been placed on record to show that he held a valid driving license by any of the parties. Therefore, if Satish Kumar were indeed operating the motorcycle, the insurers may or may not be liable. The insurers could still be liable, because they have not come up with a positive stand and evidence after due inquiry, that Satish Kumar, who, according to them, was operating the motorcycle, did not hold a valid license, so as to constitute a violation of the insurance policy covering the offending vehicle.
22. But, in this case, this Court may not be required to go that far. It would first have to be determined whether for a fact, the Tribunal was right in opining that it was not the owner who was operating the motorcycle on the date of accident, but another man called Satish Kumar. The Tribunal, in order to opine that way, has taken note of an order dated 28.12.2009 issued by the Circle Officer (of Police) that mentions the fact that Rupesh Kumar, the first informant, had said that the Police had wrongfully charge-sheeted Rajesh Kumar. The Tribunal has taken the aforesaid piece of evidence, together with the First Information into consideration, where Satish Kumar has been named as the person operating the offending vehicle at the time of the accident, by the first informant Rupesh Kumar. The Tribunal has connected these two facts with the failure of the claimants to examine Rupesh Kumar as a witness on their behalf. The Tribunal has also taken into account the testimony of P.W.1 Smt. Nanhakai to the effect that her son had told this witness that it was Satish Kumar who was operating the offending vehicle. About the testimony of P.W.2, Renu, who is the only eye-witness of the accident, the Tribunal has remarked that she too has not denied the fact that Satish Kumar was operating the vehicle and has not testified about the fact as to who was actually operating it. The Tribunal has also taken into account the circumstance that Satish Kumar had sustained injuries, whereas Rajesh Kumar had none. The conclusions of the Tribunal may seem based on a thorough consideration of the evidence on record, but this Court, for reasons indicated, is of opinion that the conclusions reached on the basis of evidence on record are not sound. The Tribunal has been much influenced by the fact that in the First Information Report lodged by Rupesh Kumar, Satish Kumar with his parentage has been named as the man operating the offending vehicle at the time of the accident.
23. This Court has noted as well that the First Information Report was lodged by Rupesh Kumar within an hour and a half of the accident and he was not an eye-witness. He has lodged the report upon information by others; may be by his sister Renu. Now, as Renu's testimony would show, she could identify the person operating the offending vehicle at the time of the accident, but did not know his name. Any information passed on by her to the first informant or gathered by the informant from other sources could be much flawed. It is true that a police report, charge-sheeeting a person in the criminal case subject matter of motor accident claim, is not conclusive about the identity of the rider, or for that matter, any fact that is up for trial before the Tribunal, but the police report is certainly a valid piece of evidence. The Police, after investigation, contrary to the man named in the FIR as the one riding the motorcycle, have concluded that it was the owner who was riding the offending vehicle and operating it at the time of the accident.
24. A police report filed after investigation is the result of an official act and cannot be totally discounted, when it comes to fixing the identity of the person who was operating the offending vehicle. Quite apart, of the highest relevance, is the evidence of P.W.2, Renu, who is the only eye-witness of the accident. This witness was cross-examined, where she has said that she did not know the name of the man who was operating the motorcycle, but he is present in Court. This reference is obviously to Rajesh Kumar and not Satish, because Satish was not a party to the case and there is no record that he ever appeared before the Tribunal. The remark of the Tribunal that it was Satish Kumar who was operating the vehicle, as the deposition by P.W.1 on information from her son has not been denied by P.W.2, is not borne out from the record. P.W.2, in her testimony, including the cross-examination, has nowhere accepted the fact that it was Satish Kumar who was operating the offending vehicle. Rather, the testimony of P.W.2 indicates that no question was put to her at any point of time or a suggestion given that it was Satish Kumar, who was operating the offending vehicle. The further remark of the Tribunal, therefore, that P.W.2 has not said anything in her evidence as to who was operating the offending vehicle, is contrary to the record. She has pointed out to a person standing in Court that he was the man operating the offending vehicle, but has not taken the man's name, because she did not know it, a fact which she has clearly asserted. If the man standing in Court, who is very unlikely to have been Satish Kumar, whom the witness said was the one operating the vehicle, was indeed Satish Kumar, the evidence about that man's identity could be produced by the insurers by calling him as a witness, or requesting the Court to ascertain it. Far from it, no suggestion was given to P.W.1 that the man whom she was identifying was Satish Kumar.
25. So far as P.W.1 Nanhakai is concerned, like her son, the first informant Rupesh Kumar, she was not an eye-witness of the accident and her evidence that it was Satish Kumar who was operating the offending vehicle is a remote hearsay based upon her son's information, who had himself heard about the fact and not seen it.
26. On going through a xerox copy of the record, on the basis of which this appeal has been heard, this Court did not find any medical examination report on record regarding the injuries sustained by Satish Kumar, on the foot of which, the Tribunal has remarked that Satish Kumar has sustained injuries, whereas Rajesh Kumar has not. There is no other evidence discernible from the record that led the Tribunal to say this. The circumstantial evidence, on the foot of which the Tribunal has supported its conclusions to hold that it was Satish Kumar who was operating the offending vehicle, therefore, also appears to be unreliable.
27. The conclusion, therefore, would be that the offending vehicle was ridden by the owner at the relevant time and not Satish Kumar. The conclusion, to the contrary, recorded by the Tribunal is not sustainable. The owner had a valid driving license and insurance policy, and there is no other facet of the quarrel between parties about a breach of the terms of the policy, entitling the insurers to be relieved of their obligation to satisfy the award.
28. In the result, this appeal succeeds and stands allowed. The impugned award passed by the Tribunal is modified to the extent that the compensation awarded and directed to be paid by the owner shall be payable by the insurers.
29. Costs easy.
Order Date :- June the 3rd, 2022 I. Batabyal / Anoop (J.J. Munir, J.)