Bheru Lal @ Kalulal vs Pratap Singh And Ors

The present appeal has been preferred by the appellants against the Judgment and Award dated 17.01.2002 passed by the Motor Accident Claims

Tribunal, Udaipur, in MACT Claim Case No. 449/95 whereby, the claim-petition of the claimants was allowed and an amount of Rs. 1,12,000/- was

awarded as compensation in favour of the appellants-claimants on account of the accident which occurred on 19.06.1995.

The present appeal preferred on behalf of the owner driver of the tractor on account of the fact that the Tribunal directed the respondent - Insurance

Company first to pay compensation to the claimants and thereafter recover the same from the present appellant - owner of the vehicle.

Learned Tribunal after framing the issues, evaluating the evidence on record and hearing the counsel for the parties, partly allowed the claim petition

of the claimants.

Learned counsel for the appellant submits that the findings of the Tribunal recorded on Issue Nos. 3 and 4 are incorrect and unreasoned. He further

submits that it was proved beyond doubt that the appellant was holding a learning license to drive the light motor-vehicle. The fact that one person

named Kuka was sitting along with the appellant and was holding the requisite licence to drive the heavy transport vehicle in his favour. Therefore, the

Tribunal proceeded to examine the matter only on the ground that since the name of Kuka did not figure in the First Information Report or in any of

the statements recorded by the police during the course of investigation, therefore, it was presumed that Kuka was introduced later on, just to cover up

the issue and saving the appellant to pay the compensation. He further submits that Kuka was produced before the Tribunal as NAW-3. As per the

testimony of Kuka, it can safely be presumed that the requisite condition was fulfilled as Kuka was holding a valid license to drive the heavy motor-

vehicle. He further submits that the respondent - Insurance Company was having full opportunity to cross-examine this witness but even in the cross-

examination, nothing adverse to the statement made in the examination-in-chief was recorded. Therefore, the Tribunal fell in error in relying upon the

testimony of NAW-3 Kuka and passed the award only on the basis of the investigations done in pursuance of the FIR. Thus, the order of the Tribunal

with a direction to the respondent - Insurance Company to pay the compensation and recover the same from the owner on the face of it, is incorrect

and liable to be quashed and set side.

Per contra, Mr. Jagdish Vyas learned counsel for the respondent - Insurance Company vehemently supported the findings of the Tribunal on Issue

Nos. 3 and 4 and submitted that the name of Kuka did not figure in the First Information Report. In the reply filed by the appellant to the notice

received under Section 133 of MV Act as well as to the claim-petition, more precisely in Para 26 wherein, nothing was stated about the presence of

Kuka along with the appellant at the time of accident. He further submits that the name of Kuka did not even figure in the testimony of AW-1 Pratap

Singh - injured eye-witness and AW- 2 Sohan Singh, eye-witness of the accident. Not only this, he submits that there is no suggestion from the side of

the appellant with respect to the presence of Kuka along with the appellant at the time of accident. Thus, he submits that the findings recorded by the

Tribunal are just and proper and does not require any interference by this Court.

I have considered the submissions made at the Bar and gone through the Judgment and Award dated 17.01.2002 and the other relevant record of the

case.

The Tribunal while deciding the Issue Nos. 3 and 4 basically proceeded on the premise that at the time of lodging of the FIR, neither the name of

Kuka was mentioned nor as per the investigations conducted by the police in any of the statement recorded during the investigation, his name was

figured. The Tribunal further held that had Kuka been present at the time of accident, his name would have certainly be figured. Since, the name of

Kuka was not figured anywhere in the investigation conducted by the police, therefore, it was presumed that Kuka was introduced as a witness for

the purpose of saving the appellant from paying the compensation in the present case. This was the basis made for discarding the testimony of Kuka.

A perusal of the finding on Issue Nos. 3 and 4 reveals that the Tribunal did not discuss the testimony of NAW-3 Kuka, who specifically stated in his

statement that at the time of accident, he was holding the requisite driving licence to drive the heavy motor- vehicle and was present along with the

appellant on the tractor. Nothing contrary to the examination-in-chief was stated in the cross-examination which was done by the learned counsel for

the respondent - Insurance Company before the Tribunal. Therefore, this Court is of the opinion that discarding the testimony of Kuka in the present

case, was not correct merely because the name of Kuka did not figure in the First Information Report cannot have any bearing to discard the positive

evidence recorded before the learned Tribunal. Further, it is observed that in reply to the notice received by the appellant under Section 133, a specific

question was asked that who was driving the vehicle at the time of accident and the same was replied by the appellant that he was the driver of the

vehicle at the time of accident. Therefore, while replying the notice under Section 133 of the MV Act, there was no occasion for the appellant to

disclose who else was sitting along with him at the time of accident.

As far as, reply to the claim-petition is concerned, although in para 26, the appellant owner replied the query that he was holding the requisite licence

but not mentioning the name of Kuka at the time of accident, in the light of the positive evidence brought before the Tribunal, the inference cannot be

drawn that Kuka was not present at the time of accident.

Thus, the findings recorded by the Tribunal on Issue Nos. 3 and 4 that Kuka was not present at the time of accident is not correct and is required to

be quashed and set aside. It is held that at the time of accident, Kuka was present with the appellant and was holding the requisite licence for driving

the heavy motor- vehicle which fulfills the requisite conditions in the present case.

In view of the discussions made above, the appeal has ample force and the same is allowed. The direction of the Tribunal to pay the compensation to

the claimants by the respondent - Insurance Company with liberty to recover the same from the owner, is set aside and instead, the Insurance

Company is directed to make the payment of the compensation to the claimants in the present case without giving any liberty to recover the same

from the owner. The owner is therefore, discharged from paying any compensation.