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Judgment
Service on the respondents is sufficient, as is mentioned in the order dated 9.11.2009 passed by a coordinate Bench of this Court. However, none has turned up on behalf of the respondents. So, this Court rendered hearing to learned Counsel of the appellant insurance company.
It appears that the accident occurred on 8.2.2007 at around 4.15 PM in Haldwani city in which an adolescent girl Km. Nikita, aged about 8 years, was dashed by a tempo pickup no. U.P.-T-6691. She suffered serious injuries in such accident and passed away during the course of her treatment in the hospital. FIR was lodged on 9.2.2007 against unknown person, as the name of the driver was not known at the time of lodging such report. When the matter was investigated by the concerned Police Station, it was found that such vehicle was being driven at the relevant date and time by its owner himself Mr. Jahir Ahmad. So, chargesheet under Section 279, 338 and 304-A I.P.C. bearing Crime No. 88/2007 was filed before the Magistrate concerned. This Court is not aware about the fate of that chargesheet after culmination of the trial.
Parents as well as one brother of the deceased presented the claim petition no. 35/2007 and the learned Tribunal, vide impugned judgment dated 2.2.2009, awarded the compensation to the tune of rupees one lakh fifty thousand along with 7 per cent per annum simple interest with effect from the date of institution of such petition. Insurance company has challenged the said judgment by preferring this appeal.
Entire amount of compensation was deposited by the appellant. Out of such amount, rupees fifty thousand was directed to be released by a coordinate Bench of this Court vide order dated 27.2.2012. Remaining entire amount of compensation is kept in the form of TDR by the Tribunal concerned.
Learned Counsel for the appellant argued that the name of driver Shyam Lal has been planted by the owner of the offending vehicle Mr. Jahir Ahmad in collusion with the claimants. The name of Shyam Lal was added when it was disclosed by Jahir Ahmad in his written statement. He was got impleaded as the defendant no. 3 because Mr. Jahir Ahmad was not having any driving licence while he was actually driving the said vehicle when the accident took place. So, in order to evade the responsibility, which might have fastened upon him, the name of Shyam Lal was projected by Jahir Ahmad and he was so impleaded, as indicated above.
In addition to arrest, the chargesheet was submitted against Jahir Ahmad holding him prima facie involved in the crime, therefore, it is explicit that Shyam Lal was impleaded later in collusion with the claimants in order to evade the fastening of the liability.
Even if it is considered for a moment that Shyam Lal was driving the vehicle, then also the driving licence produced by him was only for driving the private motor car having the maximum weight of 7500 kilograms in unloaded condition. But in the present case, the weight of tempo pickup involved in the accident was 8040 kilograms in the empty state and such tempo pickup was a transport vehicle meant for transporting the goods.
So, on the above score also, the liability could not have been fastened on the appellant insurance company.
However, the Court is not inclined to enter into the controversy regarding the driving licence of Shyam Lal, but the fact remains that since the chargesheet has been submitted against Jahir Ahmad after due investigation of the case by the Police Station concerned, so prima facie it is evident that Jahir Ahmad was driving the offending vehicle on the relevant date and time and he could not produce any driving licence of him before the Court below. Therefore, the liability is fastened on Jahir Ahmad, instead of the appellant insurance company.
I order accordingly and modify the impugned award to this extent only. Consequently, appeal stands allowed. Remaining entire amount of compensation along with the interest accrued on it shall be returned by the Tribunal to the appellant insurance company. Claimants shall be entitled to recover the remaining amount, due to them, from Jahir Ahmad. Insurance company shall also be at liberty to recover the released amount from Jahir Ahamd.
Let the LCR be sent back.