Hon'ble S.C. Chaurasia,J.
Heard Shri R.C. Sharma, learned counsel for the appellant and Mr. Rajendra Jaiswal, learned counsel appearing for the claimant respondents.
In brief, the deceased Pradeep Kumar Singh alias Dipu Singh while going from Unnao to Bahurajmau along with one Manoj Singh suffered with an accident on 25.11.2000 at about 10.30a.m. with Jeep No.UP 35-A/7510. It has been stated that the driver of the jeep was driving the vehicle rashly and negligently and in consequence thereof, the accident occurred. In the said accident, the pillion rider of the motorcycle suffered with grievous injuries and later on Pradeep Kumar Singh alias Deepu Singh succumbed to the injuries. The deceased was aged about 20 years and was a student of B.Com. The monthly income has been stated to the tune of Rs.3,000/- per month. A First Information Report was lodged and the dependents of the deceased approached the tribunal for payment of compensation for an amount of Rs.7,55,000/-.
The tribunal has framed four issues, out of which issue No.1 relates to the accident alleged to have occurred on 25.11.2000 at about 10.30 with jeep. Issue No.2 relates to insurance of the jeep and issue No.3 relates to driving licence. The tribunal recorded a finding that the accident was occurred because of rash and negligent driving of Jeep No.UP 35-A/7510. The prosecution has produced oral witnesses, i.e. PW 1 Jaidev Singh, claimant petitioner and P.W.2 Rajveer Singh. Shri Rahul Bajpai, owner of 2 the vehicle himself appeared as D.W.1 whereas on behalf of the appellant National Insurance Company, one Sanjay Trivedi appeared as D.W.2. The factum of accident was duly proved by the witnesses. It has also been proved that the jeep was insured by the appellant insurance company and after the accident, Sanjay Bajpai had moved appropriate application for payment of insured amount to the appellant insurance company.
However, the argument advanced by the appellant's counsel relates to the driving licence. Mr. R.C. Sharma, learned counsel for the appellant submits that the jeep was driven by one Kallu Bajpai who did not possess driving licence. In the criminal case, a charge- sheet was filed against Kallu Bajpai.
On the other hand, a defence was taken by the owner of the vehicle that the jeep was driven by Anuj Kumar Bajpai who was having driving licence. The tribunal observed that it was the duty of the owner of the vehicle to inform the name of person who was driving the vehicle. Before the tribunal, attention of the Court was invited to the copy of the application dated 19.12.2000, filed by the owner of the vehicle as paper No.45-Ga/14. While moving application for release of the vehicle, the owner of the vehicle has indicated the name of the driver as Anuj Kumar Bajpai. Anuj Kumar Bajpai was possessing driving licence and copy of form 54 issued by the licensing authority was placed on record as paper No.45- Ga/5. It has been observed by the tribunal that after accepting the version of the owner of the vehicle with regard to the fact that Anuj Kumar Bajpai was driving the jeep, the appellant insurance company has submitted a reply for payment of compensation in terms of the insurance policy.
So far as the defence taken by the appellant that Kallu Bajpai was driving the vehicle on the basis of the charge-sheet filed in the criminal case, is concerned, it appears that on the request of the appellant, non-bailable warrant was issued to Kallu Bajpai but he did not turn up. The statement of D.W.2 Sanjai Trivedi who appeared on behalf of the appellant insurance company also does 3 not establish that Kallu Bajpai was driving the vehicle. In case, Kallu Bajpai had not appeared, then it was incumbent on the appellant insurance company to take other recourse in accordance with law to procure the attendance of Kallu Bajpai but the same has not been done.
Once the owner of the vehicle has taken a plea that the driver of the vehicle was Anuj Kumar Bajpai and accordingly, an application was also moved to the insurance company for payment of the insured amount, then the burden to prove that Kallu Bajpai was driving the vehicle shifts on the shoulder of the appellant insurance company. In that regard, the appellant insurance company has not produced any evidence which may establish that Kallu Bajpai was driving the vehicle. Merely because the name of Kallu Bajpai has been given in the charge-sheet, filed by the appellant without any further proof shall not be sufficient evidence to establish that the vehicle was not driven by Anuj Kumar Bajpai.
The trial in a criminal case and the proceeding of the tribunal under Motor Vehicles Act, are governed by different law and the finding recorded by the police while recording statement under Section 161 CrPC or while filing charge-sheet is not a substantive evidence. It is settled law that the contents in the First Information Report or the statement recorded under Section 161 CrPC are not a substantive evidence. It shall always be incumbent on the concerned party that while relying upon such statement, he or she should also prove the same like other evidence in accordance with the provisions contained in the Evidence Act. The burden was on the appellant insurance company to prove by cogent and trustworthy evidence that the vehicle was being driven by Kallu Bajpai. Without any corroborative evidence, the contents of the charge-sheet or the statement recorded under Section 161 CrPC or the First Information Report may not be taken as substantive evidence. Moreover, the contents of Section 161 CrPC or the charge-sheet are the statement given before the police and lacks evidentiary value unless proved in accordance to law.
Accordingly, submission of the petitioner's counsel to treat the contents of statement recorded under Section 161 CrPC or the charge-sheet or the First Information Report as substantive evidence in the case in hand before the tribunal seems to be mis- conceived and not sustainable. The sole witness of the appellant Shri Sanjai Trivedi (DW 2) has stated that he does not know Kallu Bajpai.
In view of above, the argument advanced by the learned counsel for the appellant that the vehicle was being driven by Kallu Bajpai, in absence of any corroborative evidence, seems to be not acceptable. The burden was on the appellant to prove by cogent and trustworthy evidence that the vehicle was driven by Kallu Bajpai and not by Anuj Kumar Bajpai as stated by the owner during course of trial. The tribunal has rightly believed the evidence led by owner with regard to the driver of the vehicle and seems to not suffer from any perversity or illegality.
Learned counsel for the appellant has relied upon a Division Bench judgment, reported in 2003 ALJ 873 National Insurance Company Limited versus Brijpal Singh. In the case of Brij Pal Singh (supra), the Division Bench held that the insurance company shall be liable only when it is proved that the driver of the offending vehicle has valid licence. The burden to prove that the driver had valid licence is on the owner of the vehicle and not on the insurer. There is no dispute with regard to the proposition of law laid down by the Division Bench of this Court but seems to be not applicable under the facts and circumstances of present case.
In the present case, as discussed hereinabove, the owner of the vehicle has set up a case that Anuj Kumar Bajpai was driving the vehicle. The evidence led by the owner with regard to the driver of the vehicle was rebuttable and it could have been controverted by the appellant by leading evidence to establish that the vehicle was being driven by Kallu Bajpai who was not possessing driving licence. As observed hereinabove, the sole witness of the appellant Sanjai Trivedi had not proved that the 5 vehicle was driven by Kallu Bajpai. For the reasons, discussed hereinabove, the statement recorded by the police in the charge- sheet or in the statement under Section 161 CrPC cannot be taken as a substantive evidence in absence of any corroborative evidence led by the appellant to assail the impugned award.
In view of above, the appeal lacks merit and is dismissed. The amount deposited in the tribunal shall be released in terms of award. The appellant shall deposit the entire dues within a period of two months.
No order as to costs.
Order Date :- 12. 1.2010 kkb/