Avinash Sharma S/O Gurvachan Lal Sharma Vs Sobhran Lal S/O Benche Lal and Anr.

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AFR

Neutral Citation No. - 2025:AHC-LKO:18094

Court No. - 5 Case :- FIRST APPEAL FROM ORDER No. - 12 of 2011 Appellant :- Avinash Sharma S/O Gurvachan Lal Sharma Respondent :- Sobhran Lal S/O Benche Lal And Anr. Counsel for Appellant :- Vivek Raj Singh,Avinash Chandra Counsel for Respondent :- Rajendra Jaiswal,Rajesh Kumar Sharma,Waquar Hashim

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And

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Case :- FIRST APPEAL FROM ORDER No. - 529 of 2011 Appellant :- Avinash Sharma Respondent :- Vinod Kumar And Another Counsel for Appellant :- Avinash Chandra Counsel for Respondent :- Pratul Gupta,Rajesh Kumar Sharma,Sandeep Mishra,Waquar Hashim

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And

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Case :- FIRST APPEAL FROM ORDER No. - 10 of 2011 Appellant :- Avinash Sharma S/O Gurvachan Lal Sharma Respondent :- Vinod Kumar S/O Benche Lal And Anr. Counsel for Appellant :- Vivek Raj Singh,Avinash Chandra Counsel for Respondent :- Rajendra Jaiswal,Rajesh Kumar Sharma,Waquar Hashim

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Hon'ble Abdul Moin,J.

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Heard Sri Avinash Chandra, learned counsel for the appellant and Sri Rajesh Kumar Sharma, learned counsel appearing on behalf of the respondent no. 1.

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Learned counsel for the appellant contends that the issue involved in First Appeal From Order No. - 12 Of 2011 (hereinafter referred to as "First Appeal"), First Appeal From Order No. - 529 Of 2011 (hereinafter referred to as "Second Appeal) and First Appeal From Order No. - 10 Of 2011 (hereinafter referred to as "Third Appeal") are the same. As such, the Court proceeds to hear all the appeals together. For the sake of convenience, the facts of first appeal no. 12 of 2011 are being taken.

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The first appeal no. 12 of 2011 has been filed against the

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judgment and order dated 24.09.2010 passed in MACP No. 74 of 2007 Inre; Sobaran Lal Vs. Avinesh Sharma and Ors, second Appeal has been filed against the judgment and order dated 17.02.2011 passed in MACP No. 75 of 2007 Inre; Avinesh Sharma Vs. Vinod Kumar and anr and third appeal has been filed against the judgment and order dated 24.09.2010 passed in MACP No. 73 of 2007. All these judgments and orders have been passed by the learned Motor Accident Claim Tribunal, Lakhimpur Kheri (hereinafter referred to as "Tribunal").

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Bereft of unnecessary details, it is indicated that an accident took place on 28.12.2006. The claim petition was filed by the claimants for the injuries that had been suffered by them in the said accident.

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Learned counsel appearing on behalf of the contesting parties fairly submit that the only question involved pertains to the driver of the alleged vehicle with which the accident took place.

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It is contended that as the learned tribunal has found that the driver of the vehicle with which the accident occurred was not having a valid driving license consequently, the claim has been allowed against the owner of the vehicle, the appellant herein.

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Sri Avinash Chandra, learned counsel for the appellant has argued that the learned tribunal had framed the issue no. 2 which was as to "whether at the time of the alleged accident, all papers relating to vehicle in question were valid and effective and the driver of the alleged vehicle had a valid and effective driving license and if so, its effect."

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Learned tribunal has indicated that although the photocopies of the driving license of one Sri Siraju vide paper no. 43 C has been filed on behalf of the owner of the vehicle/appellant yet from the charge sheet that had been filed in the criminal case that had been lodged, it

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emerged that the driver of the vehicle was one Sri Gurupej Singh @ Gurupesh Singh who was the driver of the vehicle at the time of the alleged incident and that he had no valid and effective driving license on the date of the accident.

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The argument of Sri Avinash Chandra, learned counsel for the appellant is that once the owner of the vehicle i.e the appellant herein had filed a written statement and had also filed along with the "fehrist" (list of documents), the driving license of Sri Siraju which driving license was valid consequently, the learned tribunal has patently erred in not considering the said driving license to be that of the driver of the vehicle and to have placed reliance on the charge sheet to conclude that it was Sri Gurpej Singh @ Gurpesh Singh who was the driver of the vehicle and he having had no valid and effective driving license and the claim has been allowed against the owner of the vehicle.

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In this regard, reliance has been placed on the judgment of this Court in the case of National Insurance Company Vs. Jai deo Singh & 2 Ors- 2010 (28) LCD 499 to contend that this Court has held that the contents of the charge-sheet or the statement recorded under Section 161 Cr.PC or the First Information Report can not be taken as substantive evidence and thus it is argued that the learned tribunal has patently erred in placing reliance on the charge sheet that had been filed against Sri Gurpresh Singh to hold that he was the driver of the vehicle.

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On the other hand, Sri Rajesh Kumar Sharma, learned counsel appearing on behalf of the respondent no. 1 has argued that the learned tribunal has specifically observed in its judgment that while filing the written statement, the owner of the vehicle has not indicated as to who was the driver of the vehicle. It is further argued that although the driving license of one Sri Siraju may have been filed yet

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no evidence was led by the owner of the vehicle to indicate that in fact it was Sri Siraju who was driving the vehicle on the fateful day and thus there was no evidence to indicate that Sri Siraju was driver of the vehicle and consequently, the learned tribunal has not erred in holding that Sri Siraju cannot be said to be the driver of the vehicle on the said fateful day rather the driver was Sri Gurpesh Singh on the basis of the charge sheet that had been filed by the police to conclude that the driver of the vehicle had no effective and valid driving license on the fateful day.

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Heard learned counsel appearing on behalf of the contesting parties and perused the records.

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Perusal of the records it emerges that an accident took place on 28.12.2006 in which the claimants suffered injuries for which they filed the aforesaid claim petition before the learned tribunal.

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A written statement was filed by the owner of the vehicle in which strangely the name of the driver who was driving the vehicle on the fateful day was not disclosed. In the list of documents which was filed by the owner of the vehicle, the driving license of one Sri Siraju was filed . Incidentally, neither the owner of the vehicle nor any other person led evidence to either prove the said driving license or for that matter to indicate as to who was the driver of the vehicle on the fateful day. The learned tribunal has considered this aspect of the matter and on the basis of the charge sheet which had been filed against Sri Gurpej Singh @ Gurpesh Singh has held that he was the driver of the vehicle on the fateful day and was not having a valid and effective driving license and consequently, the owner of the vehicle has been held liable for payment of compensation to the claimant.

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Perusal of the written statement, a copy of which has also been filed as annexure 2 to the appeal would indicate that it has been indicated in the written statement that the vehicle was being driven by

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an experienced and qualified driving license holder but strangely the name of the driver has been withheld in the said written statement.

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Along with the list of documents, the driving license of one Sri Siraju was filed yet nobody put in appearance or led evidence to prove the said driving license nor the owner of the vehicle/ appellant herein led any evidence to prove that on the fateful day, it was the in fact Sri Siraju who was driving the vehicle. In the charge sheet that had been filed by the police it emerged that Sri Gurpej Singh @ Gurpesh Singh was the driver of the vehicle. Thus, before the learned tribunal it was only the charge sheet which has been filed by the police which indicated that the driver of the vehicle was in fact Sri Gurpej Singh @ Gurpesh Singh who was driving the vehicle and in the absence of any evidence being led by the owner of the vehicle to indicate that in fact it was Sri Siraju who was the driver of the vehicle consequently, it emerges that the learned tribunal has correctly concluded that the driver of the vehicle was in fact Sri Gurpej Singh @ Gurpesh Singh who was not having a valid driving license on the fateful day.

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In this regard, the Court may refer to Section 102 of the Evidence Act, 1872 (hereinafter referred to as "Act, 1872") which states that burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.

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Section 105 of the Act, 1872 provides for burden of proving the existence of circumstance by the person accused within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same code or in any law defining the offence and the Court shall presume the absence of such circumstances.

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Section 106 of the Act, 1872 states that when any fact, is especially within the knowledge of any person, the burden of proving that fact is upon him.

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Thus, the knowledge of the vehicle being driven by Sri Siraju was exclusively within the knowledge of the appellant herein and as such, the burden of proof lay on him to prove such fact. However, no witness ever put in appearance on behalf of the appellant before the learned tribunal to proof the burden of establishing that the vehicle was being driven by Sri Siraju i.e the driver who was having a valid driving license.

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Having regard to Section 114 illustration (g) of the Act, 1872, if a party abstains from entering witness box and stating his own case and does not offer himself for cross-examination by the other side, a presumption arises that the case set up by him is not correct.

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In this regard, it would be apt to refer to the judgment of the Apex Court in the case of United India Insurance Co. Ltd Vs. Gian Chand and Ors- (1997) 7 SCC 558 wherein it has been held as under:-

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"10...........it has been clearly held by the Tribunal as well as by the High Court that respondent No.1 who was permitted to drive the vehicle by respondent No.9, the insured, was admittedly not having any driving licence. It was not the case of respondent No.9, the insured, that he did not know that respondent No.1 whom the vehicle was being handed over was not having a valid licence. In fact, once he did not step in the witness box to prove his case, an adverse inference had necessarily to be drawn against him to the effect that the vehicle had been handed over by him for being driven by an unlicensed driver, respondent No.1.....

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(emphasis by the Court)

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From a perusal of the aforesaid judgment it emerges that in case the appellant was asserting that the vehicle was being driven by Sri Siraju who was having a valid driving license consequently, he should have stepped in the witness box to prove his case and not having done so an adverse interference was necessarily to be drawn against him to the effect that the vehicle was being driven by an unlicensed driver.

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So far as the judgment of this Court in the case of Jai Deo

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Singh (supra) is concerned, suffice it to say that in the said case before the learned tribunal, an application was filed by the owner of the vehicle per which the owner had indicated the name of the driver as Sri Anuj Kumar Bajpai who was possessing a valid driving license but the learned tribunal did not consider that aspect of the matter but considered the name of driver indicated in the charge sheet.

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As already indicated above, there was no evidence before the learned tribunal to indicate that the driver of the vehicle on the fateful day was Sri Siraju who was a valid driving license more particularly when the name of the driver of the vehicle was suppressed by the owner of the vehicle while filing the written statement. Thus, the judgment of Jai Deo Singh (supra) would have no applicability in the instant case.

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Keeping in view the aforesaid discussion, no case for interference is made out. Accordingly, the appeal is dismissed.

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Order Date :- 26.3.2025/Pachhere/-

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Digitally signed by :- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench

Avinash Sharma S/O Gurvachan Lal Sharma v. Sobhran Lal S/O Benche Lal and Anr.

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Avinash Sharma S/O Gurvachan Lal Sharma v. Sobhran Lal S/O Benche Lal and Anr.

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