# Rajesh Kumar v. Smt. Nanhakai & Ors

- **Citation:** (2022) 7 ILRA 557
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-03
- **Case number:** First Appeal From Order No. 509 of 2013
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-v-smt-nanhakai-ors-48801
- **Pages:** 9

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Section 173 - Indian Penal Code, 1860 -
Sections 337, 338, 304 & 427- Civil
Procedure Code, 1908 - Order XLI , Rule
27 - Owner's Appeal - Award - 'hit & run'
case - Insurance company taken Plea (i)
'Non-joinder
of
necessary
party'
(ii)
claimants are fails to supplied the cover
note or the policy, driving licences (DL) as
well as copies of the FIR, charge-sheet,
site plane, injury report, post-mortem
report etc (iii) Motorcycle was driven by a
person
different
from
the
owner
-
Application to admit additional evidence -
Tribunal
decided
the
question
of
admissibility of a Photostat copy of the DL
or the insurance Policy in favour of the
insurers - and relived the insurers from
558 INDIAN LAW REPORTS ALLAHABAD SERIES
their liability to pay the compensation is
inadmissible - court held that, it was the
duty of insurers to rebut and/or lead the
evidences to establish that the vehicle
was not insured or DL was fake - the
police report is result of an official act and
cannot be totally discounted - conclusion
to the contrary, recorded by the tribunal
holding that offending vehicle was not
ridden by the owner is not sustainable -
held, owner had a valid DL & insurance -
hence, appeal allowed, award modified,
compensation would be paid by the
insurers.(Para - 11, 20, 21, 24, 27, 28)

Appeal - allowed. (E-11)

List of Cases cited: -

## Text

7 All. Rajesh Kumar Vs. Smt. Nanhakai & Ors.
557
of
tractor-trolley
and
the
insurance
company is not liable to indemnify the loss.

12.
Similar
view
has
been
expressed by the Apex Court in National
Insurance Co. Ltd. v. V. Chinnamma, 2004
ACJ 1909 (SC). In the said case the tractor
and the trolley attached to it were used for
transporting vegetables for sale in the
market and not for agricultural purposes. It
was held that the tractor was meant to be
used for agricultural purposes. It cannot be
used as a transport vehicle. The trailer or
the trolley attached to the tractor would
also be required to be used for agricultural
purposes unless registered otherwise. In
view of aforesaid facts and cir cumstances,
there is no force in the appeal and the same
is dismissed as devoid of merit."

15. The same principle has been
followed in a more recent decision of this
Court in Oriental Insurance Company
Ltd. v. Biddo Devi (Deceased) and
others, 2018 SCC OnLine All 6027.

16. Bearing in mind the fact that the
deceased was travelling on board a tractortrolley on a public road, proceeding to the
cremation ground to participate in the
funeral rites of Radhey Lal's mother, it was
certainly not a case of an injury or death
sustained by a third party in the course of
use of the tractor for an agricultural
purpose. The insurers cannot be held liable
at all under the policy to satisfy the award
or indemnify the owner. The finding
recorded by the Tribunal, therefore, on
Issue No. 3 is patently flawed and liable to
be set aside.

17. In the result, this appeal succeeds
and is allowed. The impugned award dated
05.07.2002 passed by the Tribunal is
modified.
It
is
ordered
that
the
compensation awarded shall be recoverable
from the owners. The insurers shall stand
discharged of their liability. The statutory
deposit of Rs. 25,000/- made in this appeal
shall be permitted to be withdrawn by the
insurers.

18. Costs easy.
----------
(2022)07ILR A557
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.06.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 509 of 2013

Rajesh Kumar ...Appellant
Versus
Smt. Nanhakai & Ors. ...Respondents

Counsel for the Appellant:
Sri Ashish Verma, Sri Rajesh Kumar Shukla,
Sri Shakeel Ahmad Ansari

Counsel for the Respondents:
Sri Rajesh Trivedi, Sri Subash Chandra
Gulati

Civil Law - Motor Vehicles Act, 1988 -
Section 173 - Indian Penal Code, 1860 -
Sections 337, 338, 304 & 427- Civil
Procedure Code, 1908 - Order XLI , Rule
27 - Owner's Appeal - Award - 'hit & run'
case - Insurance company taken Plea (i)
'Non-joinder
of
necessary
party'
(ii)
claimants are fails to supplied the cover
note or the policy, driving licences (DL) as
well as copies of the FIR, charge-sheet,
site plane, injury report, post-mortem
report etc (iii) Motorcycle was driven by a
person
different
from
the
owner
-
Application to admit additional evidence -
Tribunal
decided
the
question
of
admissibility of a Photostat copy of the DL
or the insurance Policy in favour of the
insurers - and relived the insurers from
558 INDIAN LAW REPORTS ALLAHABAD SERIES
their liability to pay the compensation is
inadmissible - court held that, it was the
duty of insurers to rebut and/or lead the
evidences to establish that the vehicle
was not insured or DL was fake - the
police report is result of an official act and
cannot be totally discounted - conclusion
to the contrary, recorded by the tribunal
holding that offending vehicle was not
ridden by the owner is not sustainable -
held, owner had a valid DL & insurance -
hence, appeal allowed, award modified,
compensation would be paid by the
insurers.(Para - 11, 20, 21, 24, 27, 28)

Appeal - allowed. (E-11)

List of Cases cited: -

1. National Insurance Co. Ltd. New Delhi Vs
Jugal Kishore & ors. (1988 (1) SCC 626),

2. Baij Nath Chaudhary Vs Sardar Avtar Singh &
ors.
(FAFO
No.
838/1995
decided
on
11.12.2019),

(Delivered by Hon'ble J.J. Munir, J.)

1. This is an owner's appeal, arising out
of a judgment and award passed by the Motor
Accident
Claims
Tribunal,
awarding
compensation to the claimants, but relieving
the insurers of their liability.

2. The accident giving rise to this claim
happened on 03.07.2009 at about 12:00 noon
within the local limits of Police Station
Mohanlalganj. The deceased, Ram Kumar
alias Kunware was proceeding on a bicycle
along with his daughter. As he reached the
Dahiar
Turn,
a
motorcycle
bearing
Registration No. UP-32CQ-7136 proceeded
from the side of Mohanlalganj, which was
driven at a high speed and negligently. It hit
Ram Kumar, leading to grievous injuries. He
was rushed to the Government Hospital,
Mohanlalganj, but before any aid could be
extended, he passed away. The claimants are
six in number. Smt. Nanhakai is the
deceased's widow, whereas Rupesh, Dileep
and Sandeep are his sons. Km. Mamta and
Km. Renu are the deceased's daughters.
When the cause of action arose, out of the
five children of the deceased, Rupesh alone
was a major, aged 20 years. Dileep was aged
17 years, whereas Sandeep, 15. Km. Mamta
and Km. Renu were aged 12 years and 8
years respectively. All the six claimants are
arrayed as respondent nos. 1 to 6 to this
appeal. The owner of the motorcycle is the
appellant, whereas respondent no. 7, the
National
Insurance
Company
Limited
through its Zonal Manager, Nawal Kishore
Road, Hazaratganj, Lucknow is arrayed as
respondent no. 7.

3. The claim petition was brought by
the six respondents to this appeal, who shall
hereinafter be called the 'claimants', arraying
Rajesh Kumar and the National Insurance
Company Limited as the two opposite
parties. Rajesh Kumar shall hereinafter be
referred to as 'the owner' whereas the
National
Insurance
Company
Limited
aforesaid shall be called 'the insurers', unless
the context necessitates a particular reference.

4. The claimants asked for a
compensation in the sum of Rs.15,30,500/-.
The Tribunal, after trying the petition, has
allowed it in part, awarding a compensation
of Rs.3,16,800/- with 7% interest from the
date of the award (for short, 'the impugned
award') until realization. The awarded
compensation has been directed to be paid by
the owner, relieving the insurers of their
liability.

5. Aggrieved, this appeal has been
preferred by the owner.

6. Eschewing unnecessary details
about the owner's and the insurers' case
pleaded in the written statement, it would
7 All. Rajesh Kumar Vs. Smt. Nanhakai & Ors.
559
suffice to record that the owner has denied
the accident and said that he reached the
site of accident after it had already taken
place. He stopped by the wayside upon
coming across the accident. He was
surrounded by the locals and implicated as
the perpetrator. The stand of the owner is
not to the effect that he was not the one
who was riding the offending motorcycle.
To the contrary, the owner's stand is that
his vehicle was not involved in the
accident, but while riding it, he chanced
upon the site of accident. His vehicle was
duly insured with the insurers and he was
riding it with a valid and effective driving
licence. His registration certificate and all
necessary documents were in order. The
owner raised a plea that liability, if any,
would be that of the insurers.

7. The insurers put in their written
statement, where they not only denied the
factum of the accident or the involvement of
the offending vehicle, but also pleaded that
the claimants have neither supplied a copy of
the cover note or the policy, so as to enable
the insurers to ascertain whether the
offending vehicle was insured with them. It
was also stated in the insurers' pleadings that
the claimants had not served a copy of the
First Information Report, the charge-sheet in
the criminal case and the site-plan. Also, a
copy of the injury report, postmortem report
etc. were not available in order to enable the
insurers to ascertain the cause of death, and if
it was referable to the injuries sustained by
the deceased. A plea was also raised on
behalf of the insurers that the claimants have
neither impleaded the rider, who was
operating the motorcycle at the relevant time
or filed a copy of his driving license. Thus,
apart from raising a plea of non-joinder of
necessary party, that is to say, the rider, the
crux of the insurers' case was that the
motorcycle was operated by a person
different from the owner, Rajesh Kumar.

8. It must be remarked here that the
name of the motorcyclist operating the
offending vehicle, has figured later on in the
evidence as one Satish Kumar, a man
different from its owner, Rajesh Kumar.

9. On the pleadings of parties, the
Tribunal
framed
the
following
issues
(translated into English from Hindi) :

(1) Whether on 30.07.2009 at
about 12:00 noon at Mohanlalganj, Lucknow
when the deceased, Ram Kumar @ Kunware
was riding his bicycle along with his
daughter, the rider of motorcycle bearing
Registration No. UP-32CQ-7136, riding it at
a high speed and negligently, hit the bicycle,
that led the deceased to sustain injuries,
causing his death by the time he reached
hospital?

(2) Whether on the date and time of
the accident, the offending motorcycle No.
UP-32CQ-7136 was insured with opposite
party no.2 and its insurance was valid and
effective?

(3) Whether on the date and time of
the accident, the rider of the offending
motorcycle No. UP-32CQ-7136 was in
possession of a valid and effective driving
licence?

(4) Whether the accident occurred
on account of contributory negligence of the
deceased riding the bicycle?

(5) Whether the rider of the
motorcycle is a necessary party and his nonimpleadment to the claim petition makes it
bad for non-joinder?
560 INDIAN LAW REPORTS ALLAHABAD SERIES

(6) Whether the claimants are
entitled to any relief? If yes, from whom
and how much?

10. In support of the claim, the
claimants led documentary evidence, which
includes a copy of the FIR relating to
Crime No. 417 of 2009, under Sections
337, 338, 304, 427 IPC, Police Station
Mohanlalganj, District Lucknow, Paper No.
C5/2, and a photostat copy of the
postmortem report, Paper Nos. C5/3 and
5/4.
In
addition,
more
documentary
evidence was filed through a subsequent
list, Paper No. C16 that includes a certified
copy of the charge-sheet, a certified copy
of the check FIR, a certified copy of the
site-plan, a certified copy of the accident
inspection report, a certified copy of the
postmortem report, registration certificate
of the offending motorcycle and the
insurance papers. The insurers filed a
certified copy of the deceased's family
register, a photostat copy of the ration card,
a copy of an order dated 28.12.2009 passed
by the Circle Officer, Mohanlalganj. Along
with these papers, a photostat copy of
Rajesh Kumar's driving licence was also
filed. The claimants examined Nanhakai as
PW-1, the widow of the deceased and Km.
Renu, the deceased's daughter, who was the
pillion rider of the ill-fated bicycle, as PW2. No oral evidence was led on behalf of
the owner or the insurers.

11. Before commencement of hearing
in the appeal, an application under Order
XLI Rule 27 CPC was made on behalf of
the owner, seeking to bring on record the
original insurance policy and the driving
licence.
Before
the
application
was
considered
and
allowed,
the
learned
Counsel for the insurers was required to
seek
instructions
and
verify
the
genuineness of the owner's driving licence
and the insurance policy relating to the
Insurance Company. This opportunity was
granted vide order dated 27.11.2021. The
application to admit additional evidence
was allowed vide order dated 06.12.2021.
Both the documents, that is to say, the
insurance policy and the driving licence,
were admitted to record and marked as
Appellant Exhibits Nos. A1 and A2. The
hearing
of
the
appeal
proceeded
immediately thereafter and judgment was
reserved.

12. Heard Mr. Rajesh Kumar Shukla,
learned Counsel for the owner, Ms. Pooja
Arora, Advocate holding brief of Mr. S.C.
Gulati, learned Counsel appearing on
behalf of the insurers and Mr. Rajesh
Trivedi, learned Counsel for the claimants.

13. The learned Counsel for the
owner has argued that his motorcycle was
never involved in the accident and it was a
case of 'hit and run'. He happened to reach
the
scene
of
occurrence
riding
his
motorcycle, the offending vehicle and was
framed in the case by the locals. This issue
has been examined by the Tribunal and the
evidence of PW-2, Renu, who was the
pillion rider of the ill-fated bicycle along
with the deceased, has been believed to
hold the owner's motorcycle as the
offending vehicle. The Tribunal has also
concluded, from the evidence of PW-2, that
the offending vehicle was being driven at a
high speed and negligently, which resulted
in the fatal accident. The Tribunal has also
looked into the site-plan to hold it to be a
case of the motorcyclist's negligence.

14. This Court has looked into the
evidence of PW-2 as well, who is a very
important witness, and must say that the
conclusions of the Tribunal on the first
issue cannot be faulted. Rather, the owner
7 All. Rajesh Kumar Vs. Smt. Nanhakai & Ors.
561
does not dispute the fact that he was riding
the offending vehicle and chanced upon the
accident, which caused him to stop as an
onlooker. His case is that he was
implicated, because the real perpetrator had
fled. There is not a shred of evidence to
suggest any case of false implication or
there being another vehicle that did a 'hit
and run'. The finding returned by the
Tribunal on the first issue, that the
offending vehicle is the one responsible for
the accident, therefore, is flawless and must
receive our affirmation.

15. It is the second and the third
issues, where there has been serious
contention between parties about the fact
whether the offending vehicle was driven
by the owner, that is to say, Rajesh Kumar,
or by another man called Satish Kumar, son
of Sundar Lal. This name does not figure in
the pleadings of the insurers, but has been
mentioned in the FIR lodged by the
deceased's son, Rupesh.

16. The contention of the learned
Counsel for the owner is that the mention of
Satish Kumar's name in the FIR is a matter of
incorrect information, inasmuch as the
informant was not an eye-witness. He lodged
the information on the basis of whatever was
conveyed to him by his sister, or may be,
some other person present at the site of the
accident. The FIR was lodged very promptly,
that is to say, within an hour and a half of the
occurrence. In the circumstances, there is a
strong possibility about the name of the rider
being mistaken or misunderstood at any step
in the communication from the eye-witness to
the informant. Learned Counsel for the owner
emphasizes
that
the
Police,
after
ascertainment of the identity of the offending
vehicle's rider, charge-sheeted the owner and
not Satish Kumar, who is, in no way,
connected to the accident. It is submitted that
the owner does not dispute his presence on
the spot though he denies the involvement of
his vehicle in the accident, a fact not believed
by the Tribunal. As such, to hold that it was
some Satish Kumar who was driving the
offending vehicle and not the owner, is
acknowledgment of a patently unbelievable
stand by the insurers to wriggle out of their
liability under the policy.

17. The contention of the learned
Counsel for the insurers, on the other hand, is
that even if the owner had a valid driving
licence and an insurance policy also,
purchased from them, that was valid and
effective on the date of accident, the insurers
would nevertheless not be liable, because the
vehicle was driven by another man called
Satish Kumar. According to the learned
Counsel for the insurers, it has not been
shown that Satish Kumar too had a valid and
effective driving licence on the date of
accident. It is also argued that the claimants
are in collusion with the owner, inasmuch as
in the FIR lodged by the deceased's son, the
rider of the offending vehicle has been clearly
named as Satish Kumar with his parentage,
but later on, the Police, during investigation,
have deliberately framed the owner as the one
responsible for the fatal accident. Learned
Counsel for the insurers submits that it is
clearly a case of an unauthorized man called
Satish Kumar driving the owner's vehicle
without a valid driving licence and causing
the accident, but later on, in order to saddle
the insurers with the liability, the owner in
collusion with the claimants and the Police
has taken the responsibility upon himself.

18. This Court has considered the
rival submissions on the point and carefully
perused the record.

19. The Tribunal in its finding has
relieved the insurers of the liability firstly
562 INDIAN LAW REPORTS ALLAHABAD SERIES
on the ground that a photostat copy of the
driving licence and the insurance policy,
besides the registration certificate, have
been filed that are not even attested.

20. The other ground that has
weighed with the Tribunal to relieve the
insurers of their liability is an acceptance of
the insurers' case that the offending vehicle
was driven by a man, going by the name
Satish Kumar and not the owner. As
already noticed, a case of collusion
between the owner, the claimants and the
Police has been mooted by the insurers to
shake off their liability under the insurance
policy.
So
far
as
the
question
of
admissibility of a photostat copy of the
driving license or the insurance policy, or
for that matter, the registration certificate is
concerned, the Tribunal has gone wrong in
holding the same to be inadmissible. Once
photostat copies of these documents were
produced by the claimant or even if not
produced, it was the duty of the Insurance
Company to have verified the existence of
an insurance policy issued by them in
relation to the offending vehicle and also
the genuineness of the license, upon which
reliance was placed by the claimants. Of
course, so far as the driving license is
concerned, the burden of the Insurance
Company to verify its genuineness would
not be in derogation of their case that the
vehicle was not driven by the owner, whose
license was put in evidence, but by another
man Satish Kumar. Likewise, in case of the
registration certificate, it was the duty of
the insurers to have verified the fact
whether the offending vehicle was plying
under a valid registration certificate, issued
by the competent Registration Authority.
The claimants cannot be subjected to the
burden of producing and proving the
original or attested copies of these
documents. In this connection, reference
may be made to the decision of the
Supreme Court in National Insurance
Company Ltd., New Delhi v. Jugal
Kishore and others1 which was a motor
accident claim case arising under the Motor
Vehicles Act, 19392. Apart from the
principles laid down there, specific to
Section 95 of the Act of 1939, a principle
of wide import in the matter of burden of
proof regarding production of the Insurance
Policy and the Driving License in an
accident claim case was stated thus :

10. Before parting with the case,
we consider it necessary to refer to the
attitude often adopted by the Insurance
Companies, as was adopted even in this
case, of not filing a copy of the policy
before the Tribunal and even before the
High Court in appeal. In this connection
what is of significance is that the
claimants for compensation under the
Act are invariably not possessed of either
the policy or a copy thereof. This Court
has consistently emphasised that it is the
duty of the party which is in possession
of a document which would be helpful in
doing justice in the cause to produce the
said document and such party should not
be permitted to take shelter behind the
abstract doctrine of burden of proof.
This duty is greater in the case of
instrumentalities of the State such as the
appellant who are under an obligation to
act fairly. In many cases even the owner of
the vehicle for reasons known to him does
not choose to produce the policy or a copy
thereof.
We
accordingly
wish
to
emphasise that in all such cases where
the
Insurance
Company
concerned
wishes to take a defence in a claim
petition that its liability is not in excess
of the statutory liability it should file a
copy of the insurance policy along with
its defence. Even in the instant case had
7 All. Rajesh Kumar Vs. Smt. Nanhakai & Ors.
563
it been done so at the appropriate stage
necessity of approaching this Court in
civil appeal would in all probability have
been avoided. Filing a copy of the policy,
therefore, not only cuts short avoidable
litigation but also helps the court in
doing justice between the parties. The
obligation on the part of the State or its
instrumentalities to act fairly can never
be over-emphasised.

(Emphasis by Court)

21. Following the aforesaid decision
of the Supreme Court, this Court in Baij
Nath Chaudhary v. Sardar Avtar Singh
and others3 held that it was the duty of the
insurers to rebut and/or lead evidence to
establish that the vehicle was not insured
with it or that the driver's license was fake.
The objection, in any case, is no longer
available, inasmuch as the originals of the
driving license and the insurance policy
were produced before this Court and sought
to be admitted in evidence through an
application under Order XLI Rule 27 CPC.
That application has been allowed and both
the documents have been admitted to
record and marked as exhibits. Therefore,
before this Court, it cannot be contended in
any case that the offending vehicle was not
insured with the insurers or that the driving
license produced was fake. In fact, no
evidence to dispute any of the papers
regarding the offending vehicle has been
led by the insurers. But, the vehicle plied
on authorized papers, notwithstanding the
insurers' case about the motorcycle being
driven by Satish Kumar, a person other
than the owner, who is alleged by the
claimants to be operating the motorcycle,
has to be examined. It is so because the
Tribunal has opined that it was not the
owner who was driving the motorcycle on
the fateful day, but Satish Kumar, whose
name has figured in the First Information
Report. About Satish Kumar, if he be the
rider operating the offending motorcycle,
not an iota of evidence has been placed on
record to show that he held a valid driving
license by any of the parties. Therefore, if
Satish Kumar were indeed operating the
motorcycle, the insurers may or may not be
liable. The insurers could still be liable,
because they have not come up with a
positive stand and evidence after due
inquiry, that Satish Kumar, who, according
to them, was operating the motorcycle, did
not hold a valid license, so as to constitute
a violation of the insurance policy covering
the offending vehicle.

22. But, in this case, this Court may
not be required to go that far. It would first
have to be determined whether for a fact,
the Tribunal was right in opining that it was
not the owner who was operating the
motorcycle on the date of accident, but
another man called Satish Kumar. The
Tribunal, in order to opine that way, has
taken note of an order dated 28.12.2009
issued by the Circle Officer (of Police) that
mentions the fact that Rupesh Kumar, the
first informant, had said that the Police had
wrongfully charge-sheeted Rajesh Kumar.
The Tribunal has taken the aforesaid piece
of evidence, together with the First
Information
into
consideration,
where
Satish Kumar has been named as the person
operating the offending vehicle at the time
of the accident, by the first informant
Rupesh
Kumar.
The
Tribunal
has
connected these two facts with the failure
of the claimants to examine Rupesh Kumar
as a witness on their behalf. The Tribunal
has also taken into account the testimony of
P.W.1 Smt. Nanhakai to the effect that her
son had told this witness that it was Satish
Kumar who was operating the offending
vehicle. About the testimony of P.W.2,
Renu, who is the only eye-witness of the
564 INDIAN LAW REPORTS ALLAHABAD SERIES
accident, the Tribunal has remarked that
she too has not denied the fact that Satish
Kumar was operating the vehicle and has
not testified about the fact as to who was
actually operating it. The Tribunal has also
taken into account the circumstance that
Satish Kumar had sustained injuries,
whereas Rajesh Kumar had none. The
conclusions of the Tribunal may seem
based on a thorough consideration of the
evidence on record, but this Court, for
reasons indicated, is of opinion that the
conclusions reached on the basis of
evidence on record are not sound. The
Tribunal has been much influenced by the
fact that in the First Information Report
lodged by Rupesh Kumar, Satish Kumar
with his parentage has been named as the
man operating the offending vehicle at the
time of the accident.

23. This Court has noted as well that
the First Information Report was lodged by
Rupesh Kumar within an hour and a half of
the accident and he was not an eye-witness.
He has lodged the report upon information
by others; may be by his sister Renu. Now,
as Renu's testimony would show, she could
identify the person operating the offending
vehicle at the time of the accident, but did
not know his name. Any information
passed on by her to the first informant or
gathered by the informant from other
sources could be much flawed. It is true
that a police report, charge-sheeeting a
person in the criminal case subject matter
of motor accident claim, is not conclusive
about the identity of the rider, or for that
matter, any fact that is up for trial before
the Tribunal, but the police report is
certainly a valid piece of evidence. The
Police, after investigation, contrary to the
man named in the FIR as the one riding the
motorcycle, have concluded that it was the
owner who was riding the offending
vehicle and operating it at the time of the
accident.

24. A police report filed after
investigation is the result of an official act
and cannot be totally discounted, when it
comes to fixing the identity of the person
who was operating the offending vehicle.
Quite apart, of the highest relevance, is the
evidence of P.W.2, Renu, who is the only
eye-witness of the accident. This witness
was cross-examined, where she has said
that she did not know the name of the man
who was operating the motorcycle, but he
is present in Court. This reference is
obviously to Rajesh Kumar and not Satish,
because Satish was not a party to the case
and there is no record that he ever appeared
before the Tribunal. The remark of the
Tribunal that it was Satish Kumar who was
operating the vehicle, as the deposition by
P.W.1 on information from her son has not
been denied by P.W.2, is not borne out
from the record. P.W.2, in her testimony,
including
the
cross-examination,
has
nowhere accepted the fact that it was Satish
Kumar who was operating the offending
vehicle. Rather, the testimony of P.W.2
indicates that no question was put to her at
any point of time or a suggestion given that
it was Satish Kumar, who was operating
the offending vehicle. The further remark
of the Tribunal, therefore, that P.W.2 has
not said anything in her evidence as to who
was operating the offending vehicle, is
contrary to the record. She has pointed out
to a person standing in Court that he was
the man operating the offending vehicle,
but has not taken the man's name, because
she did not know it, a fact which she has
clearly asserted. If the man standing in
Court, who is very unlikely to have been
Satish Kumar, whom the witness said was
the one operating the vehicle, was indeed
Satish Kumar, the evidence about that
7 All. Angad Tiwari & Anr. Vs. National Insurance Co. Ltd. & Anr.
565
man's identity could be produced by the
insurers by calling him as a witness, or
requesting the Court to ascertain it. Far
from it, no suggestion was given to P.W.1
that the man whom she was identifying was
Satish Kumar.

25. So far as P.W.1 Nanhakai is
concerned, like her son, the first informant
Rupesh Kumar, she was not an eyewitness of the accident and her evidence
that it was Satish Kumar who was
operating the offending vehicle is a remote
hearsay based upon her son's information,
who had himself heard about the fact and
not seen it.

26. On going through a xerox copy of
the record, on the basis of which this appeal
has been heard, this Court did not find any
medical examination report on record
regarding the injuries sustained by Satish
Kumar, on the foot of which, the Tribunal
has remarked that Satish Kumar has
sustained injuries, whereas Rajesh Kumar
has not. There is no other evidence
discernible from the record that led the
Tribunal to say this. The circumstantial
evidence, on the foot of which the Tribunal
has supported its conclusions to hold that it
was Satish Kumar who was operating the
offending vehicle, therefore, also appears to
be unreliable.

27. The conclusion, therefore, would
be that the offending vehicle was ridden by
the owner at the relevant time and not
Satish Kumar. The conclusion, to the
contrary, recorded by the Tribunal is not
sustainable. The owner had a valid driving
license and insurance policy, and there is
no other facet of the quarrel between
parties about a breach of the terms of the
policy, entitling the insurers to be relieved
of their obligation to satisfy the award.

28. In the result, this appeal succeeds
and stands allowed. The impugned award
passed by the Tribunal is modified to the
extent that the compensation awarded and
directed to be paid by the owner shall be
payable by the insurers.

29. Costs easy.
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(2022)07ILR A565
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 747 of 2013

Angad Tiwari & Anr. ...Appellants
Versus
National Insurance Co. Ltd. & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Mukesh Singh

Counsel for the Respondents:
Sri Deepak Mehrotra, Sri Vikas Pandey

(A) Civil Law - Motor Vehicles Act, 1988 -
Sections 168, 173 - UP Motor Vehicles
Rules, 1998 - Rule-220-A(2)(i), 220-A(3),
220-A(3)(iii), 220-A(4) - Indian Penal
Code,1860 - Section-275, 304-A, 337, 338
& 427: - Claimant's Appeal - non-joinder
of party - appreciation of evidence &
factum of accident - denial of liabilities by
insurers - accident cause by offending
vehicle being driven negligently & hit the
tempo at high speed - deceased was died
on spot - owner of truck & driver filed
their DL, Insurance papers, etc - No any
oral
or
documentary
evidence
from
insurance company filed only raise issue
of non-joinder of parties - Tribunal framed
issues
-
after
considering
all
the
documentary & oral evidences, decided all
the issues positively - held, non-joinder of