1. The instant F.A.F.O. No.909 of 2006 is connected with the F.A.F.O. No.185 of 2007. Both the appeals arise out of the award dated 12.09.2006 passed by the Motor Accident Claims Tribunal / Additional District Judge, Court No.5, Sultanpur in M.A.C.P. No.26/2005, wherein a sum of Rs.20,000/- has been awarded in favour of the claimants-respondents along with 6% interest.
2. F.A.F.O. No.185 of 2007 has been preferred by the owner and the alleged driver of the offending vehicle in question assailing the findings recorded in respect of issue no.1 wherein the Tribunal has held that the vehicle in question was being driven by Vishal Srivastava, the appellant No.1 and since at the time of the alleged accident, he was a minor, hence, the liability of the award has been fastened on the owner. Hence, to that extent the instant appeal has been preferred whereas the F.A.F.O. No.909 of 2006 has been preferred by the claimants-appellants seeking enhancement of the award.
3. At the very outset, it may be noted that the learned counsel for the claimants-appellants of F.A.F.O. No.909 of 2006 have not appeared to press the aforesaid appeal though Shri Prabhat Kumar and Shri Saurabh Chandra, learned counsel for driver and insuer are present. Consequently, in terms of Order 41 Rule 17 CPC, the Court has no option but to dismiss the aforesaid appeal for want of prosecution.
4. In the connected F.A.F.O. No.185 of 2007, the Court has heard Shri Prabhat Kumar, learned counsel for the appellants and Shri Saurabh Chandra, learned counsel for the respondent no.6. As noted above, none has appeared on behalf of the claimants-respondents No.1 to 5.
5. The submission of the learned counsel for the appellants is that while considering the issue as to who was driving the offending vehicle at the time of the accident, the Tribunal has erred in holding that the vehicle was being driven by Vishal Srivastava, the appellant No.1 whereas there was no material on record to suggest as such.
6. It is further submitted that the Tribunal has merely on the basis of surmises and conjectures have recorded a finding which cannot be upheld in the eyes of law. Consequently, the findings in respect of the aforesaid issue is incorrect and the award to that extent saddling the liability on the appellants be modified and that the award should be indemnified by the respondent no.6 Insurance Company.
7. Learned counsel for the appellants while elaborating his submission has drawn attention of the Court to the findings recorded at the internal page No.8 of the award passed by the Tribunal dated 12.09.2006 and has submitted that the Tribunal while recording the aforesaid finding has noticed that since in the criminal case Vishal Srivastava would have been charge-sheeted and the witnesses must have deposed regarding his complicity, hence, it is on the said basis the aforesaid findings have been recorded while the charge-sheet of the said criminal case was never filed before the Tribunal nor any evidence to the aforesaid effect was led, hence, in absence thereof, the said findings are vulnerable as they are not supported by evidence.
8. Shri Saurabh Chandra, learned counsel for the respondent No.6 on the other hand submitted that first and foremost the appellant no.1 did not enter the witness box, though he was made party, to rebut the statement. It is further submitted that the father of Vishal Srivastava namely Shri Arun Kumar Srivastava was the sole witness, who was examined on behalf of the defendant before the Tribunal.
9. It is further submitted that it was an admitted fact that in the alleged accident, the injured himself had lodged the FIR. In the FIR, the vehicle number was clearly mentioned. It is upon investigation, it was found that the vehicle, at the time of the accident, was being driven by Vishal Srivastava. The fact that Vishal Srivastava was charge-sheeted in the criminal case was admitted to his father, who was the sole witness of the defendant. The very fact that Vishal Srivastava was charge-sheeted indicates that there must have been prima-facie material against him which led to the filing of the charge-sheet. In case, when it was the defendant who was controverting the aforesaid, it was their burden to discharge to indicate that Vishal Srivastava was not driving the vehicle rather some other person was driving. In absence of any such cogent evidence, the Tribunal has arrived at a just and proper findings which cannot be dislodged and the submission that such findings have been recorded on the basis of surmises is quite incorrect, as alleged by the appellant.
10. It is further submitted that a specific ground was taken by the insurer that the defendants had collided amongst each other in order to shift the burden of indemnifying the award on the Insurance Company and to that extent the said self-serving statements were given by the witness which could not be corroborated. In the aforesaid facts and circumstances, the award passed by the Tribunal does not require any interference and the appeal deserves to be rejected.
11. The Court has heard learned counsel for the parties and has also perused the record.
12. Briefly, the facts giving rise to the instant appeals are that Ashok Kumar Upadhyay along with his friend namely Devi Prasad Maurya were driving together on a motorcycle on 13.09.2004 at around 09.00 AM. As they had reached near Chibraha Village at the same time another vehicle bearing Motorcycle No.UP-44-D-9365 was being driven rashly and negligently which hit the motorcycle in question, as a result, Devi Prasad Maurya and Ashok Kumar Upadhyay sustained injuries. Devi Prasad Maurya received injuries whereas Ashok Kumar Upadhyay fractured his right leg. It was also the case that after the accident, the driver of the motorcycle which was involved ran away with the vehicle, however, they had seen the number of the offending vehicle and it is in this view that on the next day i.e. on 14.09.2004, the FIR was lodged.
13. It is in respect of the aforesaid injuries that the claim application which was registered as M.A.C. No.26/2005 came to be filed. Upon notices, the claim petition was contested by the appellants as well as the Insurance Company. The ground of defence by the appellants was that the accident was not caused by the vehicle bearing Motorcycle No.UP-44-D-9365. It was further stated that the vehicle was not being driven by Vishal Srivastava. The Insurance Company also filed their separate written statement and had raised a plea that until and unless the ingredients that the vehicle involved in the accident was insured by the company coupled with the fact that the driver had a valid and subsisting licence and the vehicle was not being driven contrary to the policy conditions only then the award would be indemnified by the Insurance Company and such burden was to be discharged by the owner/insured.
14. Upon pleadings of the parties, the Tribunal framed five issues. Considering the evidence both oral and documentary, the Tribunal recorded a finding that the accident occurred on account of rash and negligent driving of motorcycle bearing No.UP-44-D-9365 and also came to be conclusion that the vehicle in question was being driven by Vishal Srivastava. Thereafter, the Tribunal also recorded that since the vehicle was duly insured but since Vishal Srivastava was a minor and did not possess a valid and effective driving licence, consequently, the burden of discharging the award was fastened on the owner namely Shri Jubair Ahmad. The Tribunal while considering the quantum found that a sum of Rs.20,000/- would be just compensation and thus awarded the said sum in favour of the claimants-respondents for the injury suffered and it is this award dated 12.09.2006, which is under challenge.
15. Considering the limited submission of the learned counsel for the appellants, the Court has perused the record and finds that despite Vishal Srivastava being made a party, he did not enter into the witness-box to give any statement. Though it is true that the FIR in respect of the accident was lodged without disclosing who was driving the vehicle rather the vehicle number was mentioned. Jubair Ahmad had also stated in his written statement that he had given his vehicle to Arun Kumar Srivastava, the father of Vishal Srivastava. There is nothing on record to indicate that at the time when the accident occurred, who was driving the vehicle other than Vishal Srivastava.
16. It is also not disputed that in the investigation, which was commenced on lodging of the FIR in the said case Vishal Srivastava was charge-sheeted. This fact was admitted by the sole witness of the defendant namely Arun Kumar Srivastava. There is no material or evidence on record to indicate that Vishal Srivastava who was charge-sheeted in the said criminal case was not driving the vehicle. Shri Arun Kumar Srivastava also did not file any evidence to reflect what was the basis and material to charge-sheet Vishal Srivastava.
17. It is also the case that the vehicle was being driven by Arun Kumar Srivastava but he also did not come forward to state that he was driving the vehicle. The Tribunal taking note of the aforesaid statements has arrived at the finding that since Vishal Srivastava was charge-sheeted which implied that there must have been prima-facie material for his involvement in the accident and there is no other evidence to the contrary to rebut the aforesaid, thus, applying the principles of preponderance of probabilities, the Tribunal has concluded that the vehicle was being driven by Vishal Srivastava.
18. This Court finds that there is no error committed by the Tribunal in arriving at the finding and it is misconceived to state that the findings are based on surmises, rather the Tribunal has considered the statements of Arun Kumar Srivastava. Since, there was no other evidence which was led by the defendants, hence, this Court is of the clear opinion that the findings recorded by the Tribunal does not suffer from any error which may persuade this Court to interfere in the findings of fact. There is no illegality in the impugned award. Accordingly, the award dated 12.09.2006 passed by the Tribunal is affirmed. The Appeal No.185 of 2007 is devoid of merits. Accordingly, it is dismissed. The other Appeal No.909 of 2006 is also dismissed for want of prosecution.
19. Any amount, if any, deposited before this Court shall be remitted to the Tribunal to be released in favour of the claimants-respondents.
20. The record of the Tribunal shall also be remitted to the Tribunal concerned forthwith.
Order Date :- 25.08.2021 Rakesh/-