JUDGMENT Sanjay Misra, J.
1. This first appeal from order has been filed against the award dated 14.12.1995 passed by Motor Accidents Claims Tribunal, Fatehpur, in Motor Accident Claim Petition No. 99 of 1993. When appeal was admitted an interim stay order dated 13.3.1996 was passed wherein it was provided that the appellant insurance company having deposited Rs. 10,000 under Section 173, Motor Vehicles Act, the said amount may be paid to the claimant on furnishing adequate security before the Tribunal.
2. The brief facts giving rise to the claim petition are that Asif alias Shanu was a minor and on 10.2.1993 at about 6 p.m. the jeep bearing registration No. URD 9982 was coming from the north side at very high speed on Banda-Sagar Road and was being driven rashly and negligently hit Asif near the shop of Dr. Siddiqui. Due to said accident, the minor Asif received grievous injuries and both his legs were fractured. It is alleged that the jeep driver was arrested on the spot and a report was lodged at the Police Station, Kotwali, Fatehpur. The claim petition has been filed by the minor who is under the guardianship of his father Mohd. Afsar Khan. Claimant has stated that at the time of accident the minor was aged 5 years. He was given treatment at the District Hospital, Fatehpur where he remained admitted for 8 days.
3. The opposite party No. 1 (respondent No. 2 in this appeal) was owner of the jeep and opposite party No. 2 (respondent No. 3 in this appeal) was said to be driver of the jeep filed a joint written statement and denied the averments of the claim petition. In the written statement it was stated that Ramendra Singh who was arrayed as opposite party No. 2 before the Tribunal was not a driver and actually one Ram Narain was driver. They stated that Ramendra Singh was present in the jeep at the time of alleged accident. The owner of the jeep Sher Singh and Ramendra Singh are the real brothers. It was alleged that claimant came before the jeep all of a sudden and accident took place. Therefore, negligence was on the part of claimant-respondent. At the time of accident, Ram Narain possessed a valid driving licence and the jeep was insured with United India Insurance Co. Ltd.
4. The insurance company also filed written statement and apart from denying the averments of claim petition it also denied the averments made by the owner and driver to the effect that the jeep was not being driven by Ram Narain but that the jeep was being driven by Ramendra Singh, opposite party No. 2. The insurance company has stated that at the time of accident Ramendra Singh did not possess a valid driving licence and, therefore, the insurance company was not liable to pay any compensation.
5. On the pleadings of the parties, the Tribunal framed three issues. The claimant examined himself as well as Zahir Husain Khan as PW 2. They stated that vehicle was being driven rashly and negligently and collided with claimant because it went out of control. They have stated that the accident took place in their presence and the driver Ramendra Singh was arrested on the spot. The owner as well as Ramendra Singh produced Ram Narain as DW 1 and claimed that Ram Narain was driver at the time of accident. Ram Narain in his deposition did not state that he was driving the jeep carefully nor he stated anything as to whether the accident took place due to negligence of the claimant. The only statement made by Ram Narain was that he possessed a valid driving licence and that he was driving the jeep. In his statement Ram Narain has stated that Ramendra Singh was sitting by his side and he stated that after the accident he escaped from the site because of fear. This witness has not rebutted the fact with regard to negligence of the driver nor he has stated anything with regard to negligence of the claimant. The factum of accident was not denied. The Tribunal held that the accident took place due to rash and negligent driving of the jeep driver and decide the issue in favour of the claimant.
6. Issue Nos. 2 and 3 were decided together. The Tribunal after perusing the statement of Ram Narain as well as Mohd. Afsar Khan and Zahir Husain Khan came to the conclusion that it was Ram Narain who was driving the jeep and not Ramendra Singh. The basis made by the Claims Tribunal for coming to this conclusion is twofolds. Firstly, that by paper No. 41C it is disclosed that earlier on 27.8.1992 Ram Narain was challaned by A.R.T.O., Fateh-pur while he was driving jeep No. URD 9982 and secondly, because Tribunal has found that it is but natural for a driver to flee from the spot if an accident is caused by him. The statement of Ram Narain that he was driving the jeep finds favour with the Tribunal. Having recorded the said findings the Tribunal has held that Ram Narain possessed a valid driving licence on the date of accident and hence it would be insurance company which will be liable to compensate the claimant. Thereafter the Tribunal has taken into the consideration the X-ray and other reports filed by the claimant as also the certificate of Chief Medical Officer, District Hospital, Fatehpur declaring that the claimant has been disabled up to the extent of 10 per cent. The age of the claimant was held to be 5 years on the date of accident. Considering the expenses incurred on the treatment, the mental agony, physical pain and future loss the Tribunal has concluded that a sum of Rs. 20,000 would be a just compensation and has awarded interest of 12 per cent per annum from the date of presentation of petition till final payment is made.
7. Heard Mr. A.C. Nigam the learned Counsel for the appellant and Mr. Vipin Behari, the learned Counsel appearing on behalf of claimant-respondent. Mr. A.K. Srivastava who appears on behalf of the respondent Nos. 2 and 3 (owner and the driver) is not present in spite of fact that this case has been adjourned on several occasions and also the list has been revised today, therefore, the matter is being decided in his absence.
8. The learned Counsel for the appellant has submitted that the jeep was driven by Ramendra Singh, respondent No. 3. At the time of accident the said Ramendra Singh did not have a valid driving licence. It was Ramendra Singh who was arrested from the spot and an F.I.R. was lodged against him. The witnesses of claimant-respondent Mohd. Afsar Khan and Zahir Husain Khan have deposed before Tribunal that it was Ramendra Singh who was driving the jeep at the time of accident and these witnesses being present at the spot had seen him and apprehended him on the spot. An F.I.R. was also lodged against Ramendra Singh. The witness has also stated in para 7 of his statement that none of the occupants of the jeep or its driver ran away from the spot after the accident. He stated that he himself caught the driver Ramendra Singh on the spot. It is the case of the appellant that Ramendra Singh is the real brother of the owner of jeep and, therefore, in order to save his brother Ram Narain has been set up. The learned Counsel submits that on a reading of the statement of Ram Narain clearly proves that he is silent regarding issue of rash and negligent driving as well as on the issue as to whether the accident had occurred due to claimant's negligence. The learned Counsel submits that finding of the Tribunal to the contrary is perverse against the evidence on record and has been made on conjectures and surmises.
9. A perusal of the record as well as the impugned judgment indicates that the statement of Mohd. Afsar Khan and Zahir Husain Khan has gone unrebutted on the factum of accident and rash and negligent driving of the driver Ramendra Singh. The statement of Ram Narain has been tried to be proved by the owner of the vehicle by filing paper No. 41C which is a challan by A.R.T.O., Fatehpur dated 27.8.1992 while Ram Narain was driving the jeep in question. Accident has occurred on 10.2.1993. The challan dated 27.8.1992 could not be taken as a piece of evidence to prove that on 10.2.1993 it was Ram Narain who was driving the jeep. It has also come in the joint written statement of the owner and Ramendra Singh that at the time of accident Ramendra Singh was travelling in the jeep along with 3-4 family members who were going to Awas Vikas Colony, Fatehpur. A perusal of the statement of Ram Narain goes to show that he has made no effort to deny his negligence. He has not denied the fact that he was driving the vehicle rashly and negligently. He has not stated a word with respect to cause of accident which according to the owner was negligence of the claimant. Ram Narain appears to have taken the responsibility for causing the accident. The only point canvassed by Ram Narain in his statement was with regard to having a valid driving licence. The presumption arrived at by the Tribunal is that "running from the spot by a driver after the accident is also not unnatural". In the present case, father of the claimant Mohd. Afsar Khan and Zahir Husain Khan were on the spot. Accident took place in front of the shop of Dr. Sid-diqui. Ramendra Singh was apprehended from the spot. An F.I.R. was lodged against Ramendra Singh. It is informed that the charge-sheet had also been filed against Ramendra Singh. From the aforesaid evidence it appears that the finding recorded by Tribunal on issue No. 2 is not correct inasmuch as the Tribunal concluded that Ram Narain was driving the jeep and not Ramendra Singh. The evidence is clear to the fact that Ramendra Singh was driving the vehicle at the time of accident and conclusion arrived at by the Tribunal to the contrary is not based on any reliable evidence. Findings of the Tribunal on this issue are against the evidence on record.
10. The issue of quantum of compensation awarded has not been pressed by the learned Counsel for the appellant insurance company. It is borne out from the record that no effort was made by the owner of the vehicle to produce any driving licence of Ramendra Singh. In the counter affidavit filed by the owner and on behalf of Ramendra Singh before this court, a photocopy of driving licence of Ram Narain has been annexed. However, there is no evidence as to whether Ramendra Singh was in possession of a valid driving licence. In absence of valid driving licence with Ramendra Singh and the accident having taken place due to rash and negligent driving I find that the liability to pay the compensation could not have been fastened on the insurance company. The evidence led by the owner and Ramendra Singh before the Tribunal indicates that they have not denied the fact that vehicle was being driven rashly and negligently. The finding of the Tribunal that Ram Narain was driving the vehicle is bad and is set aside and it is held that at the time of accident the evidence on behalf of the claimant conclusively proves that Ramendra Singh was driving the vehicle. It was Ramendra Singh who was arrested on the spot and it was Ramendra Singh against whom an F.I.R. was lodged at Police Station, Kotwali, Fatehpur as driver of the vehicle. There is nothing on record that Ramendra Singh possessed a valid driving licence on that day.
11. On the basis of the conclusion arrived at above, the impugned order is set aside to the extent where it fastened the liability exclusively on the insurance company and it is held that at the time of the accident Ramendra Singh was the driver. This appeal is, therefore, liable to be partly allowed. Appellant insurance company will pay the balance amount to the claimant-respondent as per award and after having made the said payment it will be open for the insurance company to recover the said amount from the respondent Nos. 2 and 3 (owner and the driver of the vehicle).
Appeal is partly allowed. No order as to costs.