IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.566 of 2004 UMA SHANKAR RAI Versus KISHUN RAI @ KISHUN PRASAD & ORS. ----------- 8 4.5.2010 Heard the learned counsel for the parties under Order 41 rule 11 C.P.C. and this appeal is being disposed of at the admission stage itself. 2. The owner is O.P.No.2 who is appellant in this appeal has filed this appeal against the Judgment and Award dated 21.9.2004 passed by Sri Prabhat Kumar Jha, the learned 6th Additional District Judge – cum – Motor Accident Claim Tribunal, Saran at Chapra, in Claim Case No.19/03 directing the appellant to pay a sum of Rs.1,87000/- with interest at the rate of 6% per annum. 3. According to the claimants on 18.1.2003 Awadhesh Rai was driving the jeep bearing Registration No.UP 40A – 2077 rashly and negligently and dashed the wife of Kishun Rai as a result of which his wife died. On the basis of fard beyan of Kishun Rai criminal case was instituted. After investigation charge sheet was submitted against the driver – cum – owner, Awadhesh Rai. 4. The husband and the minor children filed Claim case No.19 / 2003 claiming Rs.8,61,072/- as compensation. 5. This appellant was also O.P. No.2 in the court below. He appeared and filed a written statement alleging therein that the vehicle was insured with United India Assurance Company, respondent no.7 in this appeal. It was alleged that 2 Awadhesh Rai was sitting in jeep and one Dashrath Prasad was driving the jeep but because the claimant no.1 was knowing Awadhesh Rai only he named him in the F.I.R. 6. The Insurance Company who was O.P.No.1 appeared and filed a written statement contending that the Driver, Awadhesh Kumar, of the vehicle had no valid driving licence and, therefore, Insurance Company is not liable to pay the compensation. 7. After above pleadings issues were framed and after trial the learned court below by the impugned order found that the owner has not produced any evidence that the vehicle was driven by Dashrath Prasad. The learned court below considered the evidence of the claimants coupled with the F.I.R. and the charge sheet wherein it is clearly mentioned that the Awadhesh Rai was driving the vehicle and he was alone in the jeep. 8. The learned counsel for the appellant submitted that subsequently the appellant has filed the affidavit in the court below stating that on the alleged date of occurrence Dashrath Prasad was driving but because of wrong advice he in his fardbeyan named Awadhesh Rai. So far this is concerned the learned court below has considered this aspect and found that it is the development made by the appellant, in support of the said application/affidavit the claimant Kishun Rai was neither reexamined nor produced by the appellant. The said claimant 3 Kishun Rai who was examined as C.W. I has categorically stated that Awadhesh Rai was driving the vehicle. Therefore, at this stage there is no evidence supporting the so called application said to have been filed by Kishun Rai. It is well settled principles of law that mere pleading is not the proof of the fact. Now, therefore, except the so called application there is nothing on record to show that Awadhesh Rai was not driving the vehicle. 9. In view of the above facts and circumstances of the case as discussed I find that the learned court below after appreciation of the evidences available on record came to the finding that the appellant was driving the vehicle who had no licence. I, therefore, find no reason to set aside that finding. Thus, the impugned Judgment and Award calls for no interference. 10. In the result, I find no merit in this appeal and accordingly this Misc. Appeal is dismissed. 11. The statutory amount deposited by the appellant, i.e., Rs.25,000/- may be transferred to the court below so that it may be paid to the claimants. Anilkr.sinha (Mungeshwar Sahoo,J.)