Allowed

Gulam Ahmad v. Smt. Bhondi and Others

Allahabad HC6 Jul 2018FAFO/4155/2011

Case brief

AI extract

What is this about?

This appeal upheld the claimants against an award that fastened liability on the appellant based on FIR discrepancies. The court reversed an earlier tribunal finding that dismissed the insured driver's valid license claims due to initial police report errors.

What did the court decide?

The award directing the Insurance Company to recover amounts from the appellant is set aside. The appellant must refund the paid amount, and the Insurance Company must indemnify the claimants.

Gulam Ahmad Vs Smt. Bhondi and Others — Motor Accident Claims | Allahabad HC (2018)

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Court No. - 26

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Case :- FIRST APPEAL FROM ORDER No. - 4155 of 2011

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Appellant :- Gulam Ahmad Respondent :- Smt. Bhondi And Others Counsel for Appellant :- Ram Singh Counsel for Respondent :- K.S. Amist,Maya Ram,Nishant Mehrotra,Ram Naresh Singh,Shive Datta Yadav

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Hon'ble Ajit Kumar,J.

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Heard learned counsel for the parties and perused the records.

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This appeal, under Section 173 of the Motor Vehicles Act, 1989, is directed against the award dated 15.11.2011 passed by the Motor Accident Claims Tribunal / Additional District and Sessions Judge (Temporary Ex Cadre Post), Court No.01, Fatehpur, whereby, the Motor Accident Claim Petition No. 82 of 2011 has been allowed for a compensation of Rs. 1,17,000/along with simple interest at the rate of 7 percent in favour of claimants-respondents.

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The facts are that on 16.1.2011 in a road accident that occurred at 7:00 pm near village Usraina, Police Station Thariyawn, District Fatehpur, the husband of the claimant-respondent No.1 suffered fatal injuries and succumbed to the same while under treatment, on 3.2.2011.

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The claim petition had been filed for appropriate compensation for the loss sufferred on account of accidental death of sole bread-earner of the family who was aged about 50 years and was a mason. The monthly income was claimed to be Rs. 7500/- besides agricultural income earned by the deceased. The Tribunal framed five issues regarding the accident, rash and negligent driving by the driver of tortfeasor vehicle and the violation of terms and conditions of the Insurance Policy, the validity of the driving licence of driver and whether the claim petition was bad for non-joinder of necessary part as driver was not impleaded. On all the five issues, the Tribunal has recorded finding in favour of the claimants and awarded compensation accordingly.

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The only argument advanced by the learned counsel for the appellant for assailing the award is that in the First Information Report (for brevity 'FIR'), the name of the driver of the vehicle was taken as Mohd. Saleem and after the filing of the claim petition, the name of Mohd. Yaseen was reduced in writing as a driver before the Magistrate as Mohd. Yaseen had valid driving

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licence. The further argument is that the driver, who was driving the vehicle in question was Mohd. Saleem, had no valid licence. Countering the plea taken by the Insurance Company before the Tribunal, the owner of the vehicle deposed before that it was Mohd. Yaseen, who was driver-employed to run the vehicle and ultimately charge sheet had been filed against him only. It was also stated that the name of Mohd. Saleem was wrongly mentioned in the first information report. The Tribunal having considered and evaluated the ocular evidence has held since the owner of the vehicle had produced the driver Mohd. Yaseen before the Magistrate after filing of the claim petition, therefore, the plea of Insurance Company that name of Mohd. Yaseen was taken subsequently and the original driver whose name occurred in the FIR and who had no driving licence was deliberately not produced, has substance. The Tribunal thus concluded that it was Mohd. Saleem who was driving the vehicle since he had no driving licence, so Insurance Company could not be fastened with the liability to pay against third party claim.

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The Tribunal, however, has also recorded a fact that the driver Mohd. Yaseen, who was produced before it admitted that he was driving the vehicle in question and he had a valid driving license and that was operative between 30.8.2010 and 22.8.2011. The Tribunal also recorded a finding that the insurance cover was there of the vehicle in question. The Tribunal has only noted that there was no sufficient evidence to prove that Mohd. Yaseen was driving the vehicle in question on the fateful day at the relevant point of time.

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Having considered the findings arrived at by the Tribunal and having perused the record carefully, I am of the opinion that merely because in the first information report, the name of Mohd. Saleem had been taken would not render the other evidence led to be unbelievable. The statement of the owner of the vehicle that it was Mohd. Yaseen who was employed to drive the vehicle and then the driver Mohd. Yaseen coming into the witness box deposing that he was driving the vehicle and that he was in possession of valid driving licence at the time of accident are all sufficient enough to record a finding to that effect that it was Mohd. Yaseen who was driving the vehicle in question. Moreover, a First Information Report is nothing but a mere complaint to the Police. It is an information which some times is also based on hearsay but the investigation of the Police in pursuance of the FIR has to be given due weight, in which, it had come that it was Mohd. Yaseen who was driving the vehicle and was involved in the accident and the charge sheet had been filed by the Police after investigation against Mohd. Yaseen.

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In the event of the Insurance Company not coming forward as to under what circumstances and why the testimony of the owner of the vehicle and the driver should be disbelieved and further there being no cogent and convincing evidence except First Information Report that it was Mohd. Saleem who was driving the vehicle, in the opinion of the Court, finding returned by the Tribunal that Mohd. Yaseen could not be proved to be driving the vehicle on the fateful day, is not sound and is not sustainable.

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This Court in the case of New India Assurance Co. Ltd. v. Fashi Ahmad and Others, reported in 2010 (1) ACCD 356 (All) , the statement of owner and driving licence produced was treated as a sufficient valid evidence not only of the happening of the incident but the persons involved. The finding, therefore, of the Tribunal regarding the Issue Nos. 2, 3 and 4 is not sustainable in so far as the liability upon the appellant has been fastened.

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It is not disputed that the vehicle was insured and duly registered and was being plied as per the terms and conditions of Insurance Company. The Insurance Company is liable to indemnify the insured in the present case.

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In view of the above finding of the Tribunal with regard to Issue Nos. 2 and 3 as to whether the vehicle was not being driven by the person having a valid driving licence and, therefore, there was violation of the condition of the Insurance Company is reversed and set aside.

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This Court Court holds, therefore, it was Mohd. Yaseen, who appeared in the witness box before the Tribunal and his driving licence was produced (Exhibit-35C), was driving the vehicle in question on the fateful day and that he was in possession of a valid driving licence and so there was no violation of any condition of Insurance Policy in respect of vehicle in question.

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The Appeal is, accordingly, allowed.

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The award of the Tribunal dated 15.11.2011 passed by the Motor Accident Claims Tribunal / Additional District and Sessions Judge, Fatehpur, in so far it fastens liability upon the appellant in a third party accident claim and directs the Insurance Company-respondent No. 4 to recover the amount from the appellant is set aside.

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The Insurance Company is directed to indemnify / pay back the compensation amount to the extent of 3/4th of the compensation as deposited by the appellant along with simple

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interest @ 7% and also the remaining 1/4th amount under the award shall be deposited by the Insurance Company to be paid to the claimants. The respondent No.4 is directed to refund the amount to the appellant within six weeks from the date of production of certified copy of the order and also to deposit the 1/4th amount with the Tribunal within the same period.

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Order Date :- 6.7.2018 Akram

Gulam Ahmad v. Smt. Bhondi and Others

Case brief

What is this about?

What did the court decide?

Gulam Ahmad v. Smt. Bhondi and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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