1
A.F.R.
Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 390 of 2004
Petitioner :- National Insurance Co. Ltd. Thru R.M. Lucknow
Respondent :- Jai Deo Singh & 2 Ors.
Petitioner Counsel :- R.C. Sharma
Respondent Counsel :- Rajendra Jaiswal
Hon'ble Devi Prasad Singh,J.
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.
4
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/