Allahabad High Court
United India Insurance Co. Ltd. Thru ... vs Mushtaq Ahmad & 2 Ors. on 9 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2897
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Case :- FIRST APPEAL FROM ORDER No. - 839 of 2005 Appellant :- United India Insurance Co. Ltd. Thru Manager Respondent :- Mushtaq Ahmad & 2 Ors. Counsel for Appellant :- T.J.S. Makkar Counsel for Respondent :- L P Shukla-Ii Hon'ble Rajnish Kumar,J.
1. Heard, Sri T.J.S. Makkar, learned counsel for the appellant and Sri L.P. Shukla, II, learned counsel for the respondents.
2. The instant appeal has emanated from the judgment and award dated 31.08.2005 passed in M.A.C.T. No.127 of 2003 by the Motor Accident Claims Tribunal/ Additional District Judge, Court No.7,Sitapur, by means of which the claim petition has been allowed and an amount of Rs.1,57,000/- with interest @ 5% p.a. has been awarded as compensation to be paid as provided in the order.
3. The facts in brief, for adjudication of the present case are that the deceased Naseer Ahmad, who was a carpenter had gone to Gujra Bajar by his cycle on the fateful day of 15.04.2003. While he was returning and reached near the village, a Marshall having registration No. U.P. 32 T-C/ 0331 which was going with a high speed from Sitapur to Lakhimpurkheri rashly and negligently hit the deceased at about 6:00 p.m. The vehicle and the driver were caught by the villagers. The deceased had suffered serious injuries and he was immediately admitted in District Hospital, Sitapur where he died between 8:00 -10:00 p.m. With the aforesaid allegations, the claim petition was filed claiming compensation. The claim petition was contested by the opposite parties denying the averments made in the claim petition.
4. On the basis of pleadings of the parties, four issues were framed and after evidence the claim petition was decided after hearing learned counsel for the parties and considering the material available on record.
5. The sole argument advanced by learned counsel for the appellant was that the claim petition was filed under Section 166 of the Motor Vehicles Act 1988 therefore the respondent claimant was liable to prove the negligence of the driver of the offending vehicle but it was not proved. Even then the claim petition has been allowed on the ground that the appellant Insurance Company has not produced the driver of the offending vehicle.
6. On the other hand, learned counsel for the respondent submitted that the deceased was a 12 year boy. The chargesheet has been filed against the driver of the vehicle in question and the deceased was taken in the same vehicle therefore it cannot be said that there was no negligence on the part of the driver of the offending vehicle. The learned Tribunal after considering the pleadings and evidence has rightly allowed the claim petition and the present appeal has been filed on mis-conceived grounds so it is liable to be dismissed with cost.
7. I have considered the submissions of learned counsel for the parties and perused the records.
8. The deceased Naseer Ahmad had died in the accident which occurred on 15.04.2003 by a Marshall having registration No.U.P. 32 T-C/ 0331. The fact of accident has not been denied by the opposite parties. The only argument advanced is that since the claim petition was filed under Section 166 of the Motor Vehicles Act, therefore, the negligence of the driver of the offending vehicle is to be proved by the claimants and unless it is proved, the compensation cannot be allowed.
9. On perusal of the file of the claims tribunal it has been found that specific plea has been taken in paragraph 23 of the claim petition that the accident had occurred on account of complete negligence and rashness of the driver of Marshall. In the written statement filed by the Insurance Company, it has been stated in paragraph 27 that the alleged accident, if any, caused due to rash and sole negligence of the alleged deceased as such the answering opposite party is not liable to pay any compensation and as per the abbarations in the plaint, it is a case of contributory negligence. It is true that the witnesses produced by the claimants are not eye witnesses. However, the P.W. 1 has stated in his evidence that the accident had occurred due to complete negligence of the driver of the jeep. In the cross examination nothing could be extracted to contradict the statement except that he reached after 5-10 minutes of the accident and he had also stated that he came to know from others about the accident. An F.I.R. was lodged against the driver of the vehicle and after investigation a charge sheet has been filed against the driver. The learned Tribunal after considering the pleadings and evidence has recorded a finding that there was negligence of the driver of the vehicle in question. It is also apparent from the judgment of the Claims tribunal that the only argument advanced by learned counsel for the respondent was that there was contributory negligence of the deceased Naseer also. Therefore the negligence of the driver of offending vehicle has not been denied.
10. The learned Tribunal on the basis of a judgment of the Division Bench of this Court in the case of Yogendra Pal Singh vs Motor Accidents Claims Tribunal; 1995 (2) T.A.C. 153 (DB) has held that in case the driver of the vehicle involved in the accident is not got examined then an adverse inference shall be drawn.
11. Learned counsel for the appellant had relied on a judgment of this Court in the case of Surendra Kumar Arora and another versus Dr. Manoj Bisla and another, 2012 ACJ 1305. In the said case, it was not the case of the parents of the deceased that the vehicle in question was driven by the driver in a rash and negligent manner on the fateful day. The driver was also examined as witness and after considering the evidence and pleadings, the Tribunal had come to the conclusion that the driver of the vehicle was not driving the vehicle in rash and negligent manner.
12. The Hon'ble Apex Court found the aforesaid case covered by the decision of the Hon'ble Apex Court in the case of Oriental Insurance Company Ltd. Versus Meena Variyal; 2007 ACJ 1284 (SC). The said case has been considered by the Hon'ble Apex Court in a recent judgment of Mangla Ram versus The Oriental Insurance Company Ltd.:2018 5 SCC 656 in which it has been held that the finding of the Tribunal about the factum of negligence of the driver of the subject jeep was not tenable in view of the evidence of witness and the contents of the chargeshet filed by the police naming the respondent no.2. The relevant paragraphs 27 and 28 of the said judgment is reproduced as under:-
"27.Another reason which weighed with the High court to interfere in the First Appeal filed by respondent nos. 2 and 3, was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST 4701 was driven rashly and negligently by respondent no.2 when it collided with the motorcycle of the appellant leading to the accident. This can be discerned from the evidence of witnesses and the contents of the charge sheet filed by the police, naming respondent no.2. This Court in a recent decision in Dulcina Fernandes(supra) noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of chargesheet against respondent no.2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal.
28.Reliance placed upon the decisions in Minu B Mehta (supra) and Meena Variyal (supra) by the respondents in our opinion is of no avail. The dictum in these cases is on the matter in issue in the concerned case. Similarly, even the dictum in the case of Surendra Kumar Arora (supra) will be of no avail. In the present case, considering the entierty of the pleadings, evidence and circumstances on record and in particular the finding recorded by the Tribunal on the factum of negligence of the respondent no.2, the driver of the offending jeep, the High Court committed manifest error in taking a contrary view which, in our opinion, is an error apparent on the face of record and is manifestly wrong."
13. The Hon'ble Apex Court in the case of Dulcina Fernandes and others versus Joaquim Xavier Cruz and another: (2013) 10 SCC 646 has held that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. and the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied.
14. On examining the evidence and pleadings of the present case and in view of the aforesaid discussion and judgments of Hon'ble Apex Court, this Court finds that the factum of accident and negligence by the driver of the offending vehicle has not been denied by the respondents and the same was proved by the respondent-claimant. Only plea of contributory negligence was raised. The chargesheet has also been filed against the driver of the offending vehicle which has also not been doubted or challenged. Therefore if the appellant was of the view that there was no negligence of the offending vehicle and there was contributory negligence on the part of the deceased then he ought to have produced and examined the driver of the offending vehicle. Therefore this Court is of the view that the learned Tribunal has rightly and in accordance with law has decided the issue of accident and negligence of the driver of the vehicle and held that since no evidence was produced by the respondents which may prove the contributory negligence of the deceased Naseer and the accident had occurred due to negligence of the driver of Vehicle No. U.P. 32 T-C/ 0331. Therefore this appeal has been filed on misconceived grounds which lacks merit.
15. The appeal is, accordingly, dismissed. No order as to costs.
(Rajnish Kumar,J.) Order date:-09.12.2019 Akanksha