IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4456 of 2009 (O&M) Date of decision:23.12.2010 Rattan Convent School ....Appellant versus New India Assurance Company Limited and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Manoj Bajaj, Advocate, for the appellant. Mr. Puneet Sharma, Advocate, for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. 1. The appeal has been filed at the instance of the owner of the vehicle that was involved in the accident. The involvement of the vehicle and the rashness attributed to the driver of the vehicle in causing the accident and causing injuries to the claimant are also admitted. The dispute revolves around the name and identity of the person, who drove the vehicle that belonged to the appellant at the relevant time of the accident. The name as described in the cause title is 'Sajender Singh alias Fauji son of Shri Kirpal Singh alias Raghuvar'. The Insurance Company had filed the written statement generally denying the accident and the details of insurance but during the course of trial, a petition had been FAO No.4456 of 2009 (O&M) - 2 - filed by the insurer under Section 170 suggesting collusion between the claimant and the owner and making an express averment that the person that drove the vehicle was Fauji and he did not have an alias Sajender Singh. Fauji was son of Raghuvar and Sajender Singh was son of Kirpal Singh. The contention was that name was substituted at the trial by the appellant in collusion with the police only to make the insurer liable. Permission had been granted to the Insurance Company to contest the case on all grounds under Section 170. 2. The Tribunal, while deciding the case, found that the police had in connivance with the appellant substituted the name of Fauji son of Raghuvar as Sajender Singh son of Kirpal Singh and added also aliases to conform to the licence details found in the driving licence produced before the Court. The Tribunal found that the person, who had driven the vehicle was someone else and there was no proof that the said person had a valid driving licence and accordingly, exonerated the Insurance Company of its liability. 3. In appeal, it is contended that there was no plea at all by the Insurance Company that the 1st respondent Sajender Singh did not drive the vehicle or that he did not have an alias Fauji. According to the appellant, an objection had been permitted to be taken without any specific plea in the written statement filed by the Insurance Company and, therefore, the Tribunal was also not justified in finding that the 1st respondent was not actually the driver of the vehicle and that the alias attributed to him was not true. 4. It is admitted that in the FIR lodged with the police, there FAO No.4456 of 2009 (O&M) - 3 - had been a reference only to the particular vehicle with the details of registration number. Statement was said to have been elicited by the police from PW4 Dinesh that at the relevant time, the driver was one Fauji son of Raghuvar. The statement with the police itself had been marked but it is doubtful whether this can offer any substantive proof of what he stated to the police, especially when the Investigating Officer himself had not been examined. 5. Even in summary proceedings, the Tribunal shall be careful while according a status of exhibit to a statement of a living person. A previous statement of a witness could be used only for contradiction for what he speaks before the Court on oath. Even the statement that is contradicted in the witness stand shall be proved by securing the attendance of the Investigating Officer and eliciting from the Investigating Officer the particular statement attributed to the witness. A previous statement in Court on oath and duly authenticated copies secured from the Court could be put to a witness for contradiction in a subsequent proceeding and no further proof of the authenticity of the statement would be necessary since a statement recorded by Court on oath is a public document. The same status cannot be attributed to a statement recorded by the police under Section 161 CrPC. I will, therefore, discard the statement alleged to have been made to the police and only examine the case with what the witnesses had spoken about the identity of the driver. 6. Dinesh, who was the only witness that spoke about the identity of the driver, had stated that he had not himself known the name FAO No.4456 of 2009 (O&M) - 4 - of the driver but he had known the name of the driver from the village 4/5 days after the accident. He also said that he did not himself tell the name of the driver to the police. The Inspector, Narender Singh was examined in this case and he had produced the list of witnesses and statement of witnesses as R5 to R7. I have already pointed out that the statement of Investigating Officer cannot simply be filed without eliciting from him of what the witness said on matters which are intended to serve as corroboration or contradiction. I have seen from the evidence of RW1 that he had not investigated the case himself and he had merely presented the challan. He was also not the person, who had registered the FIR. I find again that the counsel for the owner and the driver did not examine any witness but merely rest contended with filing the insurance cover note and the driving licence of RW2 issued in the name of Sajender Singh. Sajender Singh himself was not examined to say that he had an alias Fauji and his father Kirpal Singh also had an alias Raghuvar. This assumes significance for the consistent line of defence at the trial was that the driver's name had been changed with the connivance of the police so as to make available a valid driving licence for a person when Fauji alias Raghuvar himself did not have any driving licence. I cannot discard this evidence by the only fact that the Insurance Company had not stated initially in the written statement that the name of the driver had been subsequently changed. It is no doubt true that the pleadings ought to be the bedrock for assessing the respective positions of the parties at the trial and for an erecting edifice of the case through evidence. In this case, the Insurance Company had specifically come with the statement in FAO No.4456 of 2009 (O&M) - 5 - its application under Section 170 that it had come to know during their own investigation that the identity of the driver had been specifically changed to suit the convenience and to make the insurer liable. The parties fully knew how the battle lines had been drawn. The Insurance Company had been granted permission to take up the defence on all grounds and to each one of the witnesses on the petitioner's side, the cross-examination had been done on searching lines that the driver was Fauji and that the driver, who had been implicated as having been responsible for the accident was not really driving the vehicle. 7. A school establishment which was the owner of the vehicle was bound to produce appropriate evidence to show that Sajender Singh had an alias Fauji and even his father Kirpal Singh had an alias Raghuvar. The driver himself must have been examined to speak to such a fact if it was true. Some times the aliases are verbal abbreviations of longer names and could be phonetically similar. Even if they are not similar, the most competent person would have been the driver himself to vouch for such a fact. The school ought to have had attendance registers or other documentary proof that Sajender Singh had an alias. The appellant has not placed the best evidence that was possible and has withheld the relevant evidence which would have been material to establish the identity of the driver. I would draw an adverse inference from the fact that the driver was not himself examined in the case and also from the fact that even documentary evidence relating to the appointment of a person called Fauji son of Raghuvar with the respective aliases of the driver and his father's names to be taken as circumstances FAO No.4456 of 2009 (O&M) - 6 - against the appellant's contentions. 8. In my view, the Tribunal has correctly approached the factual issue relating to the identity of the driver and I would uphold the same. The award of the Tribunal making the appellant liable is, under the circumstances, justified and the appeal is dismissed. (K.KANNAN) JUDGE 23.12.2010 sanjeev