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Chandrabhan Srivastava Vs. Badri Prasad Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in1(1985)ACC253
AppellantChandrabhan Srivastava
RespondentBadri Prasad Gupta and ors.
Excerpt:
- - the tribunal held that the claimant failed to prove service of notice and as such his claim could not succeed. he further urged that the claimant bad received injury in his right leg in the accident and inspite of the finding by the tribunal that the bus was being driven rashly and negligently by respondent no. 6. we have examined the evidence on the record, considered the arguments of the learned counsel and we are satisfied that the tribunal has not committed any error of law in the appraisal of the evidence to come to the conclusion that the claimant has failed to prove that the respondents 1 and 2 were the owners of the vehicle. the tribunal has also rightly observed that the claimant failed to prove that he had received injuries as alleged by him......the claimant had not been able to prove that the bus upi 2455 was owned by badri prasad gupta. the tribunal held that ram chandra, respondent no. 3, was driving the bus at the time of the accident and it was being driven rashly and negligently by him. on the question whether the claimant was travelling in the said bus and had received injuries, the tribunal held that the issue had not been proved according to law and decided it in the negative. it held that the claimant had not examined any doctor, who had either examined him or prepared injury report or treated him. the tribunal observed that the solitary testimony of the claimant would not be regarded as sufficient for proving the injury as alleged. the tribunal further held that the claimant had not filed any document to prove that he.....
Judgment:

A. Banerjee, J.

1. This is an appeal under Section 110-D of the Motor Vehicles Act, 1939, hereinafter referred to as the Act, by the claimant Chandra Bhan Srivastava. He claimed a sum of Rs. 80,040/- by way of damages and expenses incurred for treatment of injuries received during the accident while he was a passenger in Bus No. UPI 2455. The owners of the Bus were respondents 1 and 2, Badri Prasad Gupta and Ram Prasad, and the Bus was being driven by Ram Chandra, respondent No. 3. His case further was that the Bus was being driven rashly and negligently, inasmuch as it had left the road on the right side, injured an old man and then crashed against a tree. He became unconscious and suffered a fracture in his right leg and had to remain in hospital for some time. His further case was that he had lost Rs. 500/- which he had in his pocket at the time of the accident. He had spent Rs. 500/- on medicines; Rs. 200/- on attendants and Rs. 60/- on consultation. He claimed Rs. 54,000/- as compensation for agricultural loss of income for 15 years after retirement. He further claimed a sum of Rs. 15,000/- as agricultural loss of income from the date of the accident to the retirement. He also claimed Rs. 19,000/- as loss of seniority in service, increment etc., and a sum of Rs. 2,040/- incurred by him on special diet from the date of the accident till 16-2-1979 on the advice of the doctor.

2. Notice of the claim is said to have been sent to the owners and the driver but only the driver appeared and contested the claim and not the owners. The driver Ram Chandra denied that there was any accident involving the Bus or that the claimant had received any injury during the course of the accident. He claimed of having driven the Bus on the date alleged or of having driven it rashly and negligently. He specifically raised a plea in his written statement that respondents 1 and 2 were not the owners of the Bus. Notice was issued to respondent No. 4, General Insurance Society Ltd. on whose behalf a written statement was filed by the Divisional Manager, National Insurance Co. Ltd., Kanpur. They denied the factum of the accident and the liability of the Insurer. They also denied their liability to pay compensation and pleaded that the claimant was not entitled to any compensation. They specifically pleaded that in the absence of the particulars of the policy the answering respondent was not in a position to varify as to whether the vehicle was insured with the answering respondent.

3. The Claims Tribunal framed as many is as 13 issued. It held that the claimant had not been able to prove that the Bus UPI 2455 was owned by Badri Prasad Gupta. The Tribunal held that Ram Chandra, respondent No. 3, was driving the Bus at the time of the accident and it was being driven rashly and negligently by him. On the question whether the claimant was travelling in the said Bus and had received injuries, the Tribunal held that the issue had not been proved according to law and decided it in the negative. It held that the claimant had not examined any doctor, who had either examined him or prepared injury report or treated him. The Tribunal observed that the solitary testimony of the claimant would not be regarded as sufficient for proving the injury as alleged. The Tribunal further held that the claimant had not filed any document to prove that he was a Government servant at the time of the accident. Regarding service of notice on respondents 1 and 2 postal receipts of sending notice by registered post were filed, but the acknowledgment cards were not proved according to law. The Tribunal held that the claimant failed to prove service of notice and as such his claim could not succeed. The claim was, however, held not to be barred by time. The Tribunal further held that the claimant filed a risk note but he neither proved it nor had it been admitted by the counsel for the opposite parties. On these findings, the Tribunal was of the opinion that the claimant was not entitled to any amount from any one was claimed, and the petition was dismissed with costs.

4. In this appeal, learned Counsel for the appellant, Mr. Yatindra Singh, argued that the Tribunal erred in law and facts in dismissing the claim petition. He urged that the evidence on record had not been properly appraised. He further urged that the claimant bad received injury in his right leg in the accident and inspite of the finding by the Tribunal that the Bus was being driven rashly and negligently by respondent No. 3, no compensation had been awarded to the claimant. He further urged that respondents 1 and 2 were the owners of the Bus and they had not entered appearance nor contested the matter. The finding of the Tribunal that the claimant had not been able to prove that they were the owners of the Bus was erroneous, however, during the course of the agreement, he moved an application under Order 41 Rule 27 of the Code of Civil Procedure to take on record a certified copy of registration issued by Assistant Regional Transport Officer (Admn), Banda, which showed that Shri Badri Prasad Gupta was recorded as the owner of the Bus UPI 2455. It was urged that this paper could not be filed earlier, as he was informed by his counsel that since the owners were not disputing their ownership, it was not necessary to file any document or to give any oral evidence about the same. We have rejected this application by a separate order today.

5. The basic requirement of law is that when a claimant files an application claiming compensation for injuries received during accident caused by a motor vehicle, notice must be sent to the owner or the owners of the vehicle as also to the driver. He is also required to ask them to disclose the name of the Insurer, if any, so that an application may be made to the Insurer a party in the proceeding. The finding in this case is that the service of the notice on the respondents was not proved. However, the driver appeared and contested he claim and also gave his evidence. He raised a plea that Badri Prasad Gupta and Ram Prasad were not the owners of the vehicle, Of course, this plea was not taken by respondents 1 and 2 but in view of the fact that a plea was taken about their not being the owners of the vehicle, it was incumbent upon the claimant to establish by evidence documentary evidence, that they were the owners of the vehicle. It is elementary. Once a finding is given that the accident was caused due to rash and negligent driving by the driver, the liability passes on vicariously to the owner and thereafter to the Insurer. But if the owner is not known the question of liability of the Insurer does not arise. It was, therefore, incumbent on the claimant to have proved as to who were the owners of the vehicle.

6. We have examined the evidence on the record, considered the arguments of the learned Counsel and we are satisfied that the Tribunal has not committed any error of law in the appraisal of the evidence to come to the conclusion that the claimant has failed to prove that the respondents 1 and 2 were the owners of the vehicle.

7. Reference was made to the paper on page 62 of the Paper-book. This is a photostat copy or certificate of Insurance issued by the General Assurance Society Ltd. On an examination of the original paper on the record, it is apparent that this paper was not admitted as exhibit nor marked as such. Consequently, it cannot taken into consideration. We find another difficulty. Respondent No. 4 is the General Insurance Society Ltd., 5 Mission Road, Calcutta, whereas the document on page 62 of the Paper-Book shows General Assurance Society Ltd., 8, Dalhouse Square East, Calcutta-1, 5 Mission Road, Calcutta. This does not appear to pertain to respondent No. 4. In view of the above, we do not see how either the owners of the Insurer can be saddled with any liability.

8. There is another aspect of the matter. The finding by the Tribunal that the claimant did not receive injury in the accident is significant. If the claimant did not receive any injury in the accident as alleged by him, then he is not entitled to any compensation at all. The Tribunal has also rightly observed that the claimant failed to prove that he had received injuries as alleged by him. He did not examine any doctor who had treated him at any stage. He had filed a report about the injuries on his right leg and the X-ray report, but they are not sufficient to prove that these injuries were received by him in the course of the accident as alleged by him. The burden was on him to prove that he had received injuries in the course of the accident. In view of the fact that the claimant has not been able to prove the above fact, he is not entitled to any damages at all.

9. In our view, no other point needs to be gone into in view of the above conclusion arrived at by us.

10. Since the case set up by the appellant fails, he is not entitled to any relief in this appeal.

11. In the result, therefore, the appeal fails and is dismissed, but there will be no order as to costs.


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