IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1560 of 2007 Date of decision:- 28.07.2009. Ramesh Aggarwal ...Appellant Versus Krishna Devi and others ...Respondents CORAM: HON'BLE MR. JUSTICE A.N.JINDAL Present:- Mr. Rakesh Gupta, Advocate for the appellant. None for respondent No.1. Mr. Neeraj Khanna, Advocate for Mr. Ravinder Arora, Advocate for respondent No.2-New India Assurance Company. A.N.JINDAL J. This appeal is directed against the award dated 30.01.2007 passed by Motor Accident Claims Tribunal, Kaithal (herein referred as Tribunal) whereby the compensation of Rs.70,000/- was awarded in favour of the claimant-respondent No.1 alongwith interest @ 7.5% from the date of filing of the petition till realization and respondent No.2-Insurance Company was exonerated on the ground that it was Mukender Singh, who was driving the vehicle and not Balkar Singh and Mukender Singh was not having a valid driving licence. Aggrieved by the said award, the owner Ramesh Aggarwal has preferred this appeal. In brief, the facts are that on 25.09.2004 deceased Manohar Lal alongwith others was coming back to Kaithal from Fatehabad by tata sumo bearing registration No.HR-08D-8781 driven by respondent No.2 Balkar Singh. At about 4 PM, when they reached near the village Saniyana. Balkar Singh started driving the said vehicle rashly and negligently and lost FAO No. 1560 of 2007 -2- control, as such, the vehicle went off the road and turned turtle, consequently Manohar Lal died and other occupants suffered injuries. On death of Manohar Lal, his widow Krishna Devi filed claim petition. Upon notice, respondent No.2 and the appellant put in appearance and filed written statements. While contesting the claim, they also averred that respondent No.2 was falsely challaned in the criminal case. Actually, it was Mukender Singh, who was driving the vehicle and he was not having any valid driving licence. The insurance company further pleaded that no such accident took place and the complaint has been lodged in collusion with the driver and the owner to grab the compensation. From the pleadings of the parties, following issues were framed:- 1. Whether Manohar Lal had died in an accident arising out of the use of a motor vehicle i.e. Tata Sumo No.HR-08D-8781. 2. If issue No.1 is proved, whether the claimant is entitled to compensation. If so to what amount and from whom? OPP 3. Whether there has been any violation of the terms and conditions of the insurance policy, if so to what effect? OPR-3 4. Relief. In order to substantiate the claim, the claimant examined herself (PW1) and examined Chand Kanwar (PW2). After tendering of documents i.e. copy of final report under Section 173 Cr.P.C. (Ex.P-3), copy FAO No. 1560 of 2007 -3- of charge sheet (Ex.P-4), certified copy of site plan (Ex.P-5), certified copy of mechanical report (Ex.P-6), copy of FIR (Ex.P-7), copy of post mortem report (Ex.P-8) and academic certificates (Ex.P-9 and Ex.P-10) closed her evidence. To the contrary, owner-appellant Ramesh Aggarwal appeared as respondent No.1 and placed reliance on copy of registration certificate (Ex.R-2), copy of driving licence (Ex.R-3), copy of insurance cover note (Ex.R-4) and insurance policy (Ex.R-5). While deciding issue No.1 the Tribunal observed that Manohar Lal died as a result of turning of the vehicle bearing No.HR-08D-8781. While deciding issue No.2, it was observed that Balkar Singh was not driving the offending vehicle at the time of accident, therefore, respondent No.1 alone i.e. owner-appellant could be held liable. While deciding issue No.3, it was observed that it was Mukender Singh, who was driving the vehicle and not Balkar Singh. Since Mukender Singh was not holding a valid driving licence, therefore, insurance company was not liable. Hence, the owner-appellant was held liable. As such, he has preferred this appeal. The main grievance is that it was Balkar Singh, who was driving the vehicle, was holding a valid driving licence. Case of insurance company is that Balkar Singh was not driving the vehicle and the driver was Mukender Singh, who was driving the vehicle and he was not having a valid driving license, therefore, insurance company could not be held liable. Heard. Admittedly, in this petition under Section 163(A) of the Motor Vehicles Act, the claimant is only required to prove that the deceased had died in an accident arising out of the use of motor vehicle. The death of FAO No. 1560 of 2007 -4- Manohar Lal in a vehicular accident is clearly proved from the copy of the post mortem report. In addition to it, PW1 Krishana Devi and PW2 Chand Kanwar have also deposed that Manohar Lal died as a result of the use of vehicle. There is also no denying a fact that the respondent No.2 was the insurer of the offending vehicle. The claimants need not further prove the negligence of the driver. It is not an application under Section 166 of the Motor Vehicles Act and the only question remains to determine is “whether the owner had complied with the terms and conditions of the insurance policy”, which traces back to the proof of a valid driving licence by the driver. As such the question again remains to be determined is as to “who was the driver at the time of accident”? It is also not denied by respondent No.2 that Balkar Singh was holding a valid driving license. The claimants have neither set up a case regarding Mukender Singh being the driver nor anything cropped up in evidence led by them or the insurance company to prove that Mukender Singh was driving the vehicle at the time of accident. Chand Kanwar, who was an eye witness to the occurrence, has categorically stated that it was Balkar Singh, who was driving the vehicle. No doubt a name of Mukender Singh was recorded in the FIR but during investigation it came out that it was Balkar Singh, who was driving the vehicle. It was only Balkar Singh, who was challaned for the offence under Section 304-A of IPC for his rash and negligent act. The appellant has proved on file the final report under Section 173 Cr.P.C. (Ex.P-3), copy of charge (Ex.P-4) and copy of site plan (Ex.P-5). The final report (Ex.P-3) and charge report (Ex.P-4) establish that outcome of the investigation was that Balkar Singh was driving the vehicle at the relevant time and he was challaned and tried FAO No. 1560 of 2007 -5- in the case. The FIR so brought on record, cannot be said to be admissible in evidence as it has not been proved by its author. Therefore, the same cannot be taken into consideration. Anyway, if the name of Mukender Singh was recorded in the FIR, that was not found to be correct during investigation, therefore, the same cannot be stated to be conclusive regarding the name of the driver. The FIR is not an encyclopedia and the conclusive evidence for fastening the liability of the owner but it is the entire evidence, which is to be seen for settling the relevant issue. At the same time, it would also be highlighting that insurance company never took this plea that Mukender Singh was driving the vehicle not Balkar Singh. But the insurance company has made blatant denial that no such accident involving the jeep took place. While going further, onus to prove that the driver of the jeep was not holding a valid driving licence was upon respondent No.2-Insurance Company but no evidence has been led to establish that Mukender Singh was not holding valid driving licence. The Tribunal has not taken into consideration the aforesaid aspect and has been impressed by existence of name of Mukender Singh as driver in the FIR but did not examine the other aforesaid aspects of the case. Therefore, the Tribunal has committed error in misappreciating the FIR and in ignoring the other evidence. As such the interference of this court in the award is inevitable. Resultantly, I accept the appeal and set aside the impugned award and hold that it was only Balkar Singh, who was driving the offending vehicle bearing No.HR-08D-8781 at the relevant time and is responsible for the accident and since Balkar Singh was holding a valid FAO No. 1560 of 2007 -6- driving licence, therefore, insurance company is certainly liable to pay the compensation. July 28, 2009 (A.N.JINDAL) vj JUDGE