Gujarat High Court
Abdulbhai Nanabhai Mansuri vs Ramanbhai Ishwarbhai Gohil on 15 September, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/FA/3449/2022 ORDER DATED: 15/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3449 of 2022
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ABDULBHAI NANABHAI MANSURI
Versus
RAMANBHAI ISHWARBHAI GOHIL
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/09/2022
ORAL ORDER
1. The challenged has been given to the dismissal of the claim petition being M.A.C.P. No.61 of 2011 dated 14.10.2019 by Motor Accident Claims Tribunal (Aux.), Vadodara.
2. Mr. Mohsin M.Hakim, learned advocate for the appellant drew the attention of the Court towards the observation made in the judgment, wherein the claim petition came to be dismissed merely on the deposition of the Investigating Officer before the Judicial Magistrate concerned. Mr. Hakim has shown that while giving the Page 1 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 deposition before the Court, it appears that Investigating Officer could not recollect and remember the registration number of the vehicle.
3. Mr. Hakim further submitted that the reliance placed on the deposition of the Investigating Officer in criminal trial ought not to have been relied upon when the registration number of the vehicle was already reflected in the FIR, panchnama and charge-sheet. Reliance has been placed on the case of Mangla Ram Vs. Oriental Insurance Company Limited And Others, reported in (2018) 5 SCC 656.
4. The case of the appellant is that while claiming the compensation under section 166 of the M.V. Act, 1988, it has been stated that on 26.11.2008, the claimant along with his son were returning home at 6:30 p.m., after his masonry work from village-Janjad by driving his Luna Moped No.GJ-06-280, and when they reached near Bangladesh Faliya, opponent no.1 driving Hyundai I-10 Car No.GJ-6-DB-7817 came in excessive speed and in rash Page 2 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 and negligent manner, dashed on the front side of the Luna Moped; as a result, applicant and his son fell down; thus stated that the driver of the offending vehicle - opponent no.1 fled away from the place of the incident. A complaint came to be lodged at Sinor Police Station, vide I-C.R. No.58/2010. Due to the accident, the applicant sustained Tibia Fibia fracture injuries on different parts of his body, therefore, he was shifted to private hospital of Mota Fofaliya for his primary treatment, and thereafter was admitted to S.S.G. Hospital as indoor patient from 26.11.2008 to 10.12.2008, where he was operated and three rods were inserted on his right leg, and thus he was discharged on 10.12.2008 with plaster on his right leg.
5. The affidavit of the applicant was produced at Exhibit-24 and in the cross-examination he had affirmed that no vehicle number has been given in the FIR. From the side of the opponent no.3 - Insurance Company, it was contended that they were not liable to pay compensation, as it is a breach of policy condition and Page 3 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 that vehicle being Hundai I-10 Car No.GJ-6-DB-7817 was not involved.
5.1 While observing the contentions and examining the issues, the learned Tribunal relied on the deposition - Exh.24, FIR - Exh.27, copy of panchnama - Exh.-28, discharge card issued by Dhiraj General Hospital - Exh.29, charge-sheet - Exh.33, R.C. Book of the vehicle Hundai I-10 Car No.GJ-6-DB-7817 - Exh.34, case papers of S.S.G. Hospital - Exh.35 and the medical bills and receipts at Exh.52.
5.2 The opponent no.3 - Insurance Company had produced a certified copy of the statement of accused - opponent no.1, certified copy of deposition of the claimant at Exh.43 in Criminal Case No.499 of 2009, certified copy of the deposition of two witnesses and certified copy of deposition of the I.O. - Laxmanbhai Mangalsinh (ASI) at Exh.46 and certified copy of the judgment of Criminal Case No.499 of 2009 at Exh.48. Page 4 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022
C/FA/3449/2022 ORDER DATED: 15/09/2022 5.3 After examining the FIR, copy of charge-sheet, certified copy of the judgment of the Criminal Case and deposition of the Investigating Officer, the learned Tribunal has observed that involved vehicle in the accident was Hundai I-10 Car No.GJ-6-DB-7817 was not proved by claimant and it was disproved by the Insurance Company by producing the certified copy of deposition of the I.O. The learned Tribunal, in para-9 has observed as under:
".... Moreover, Ld. Advocate of the applicant has argued that as per Exh.33 charge sheet of such accident case -
Criminal case No.499/2009, the involved vehicle number mentioned by I.O. is GJ-DB- 7817, but after charge sheet at the time of evidence, I.O. has given the deposition (Exh.18) before Sinor Magistrate Court, copy produced in this petition at Exh.46 that as per his investigation, involved vehicle in such accident was GJ-6-DB-7817. Even Opponent No.3 produced the such copy of deposition (Exh.18) of the I.O. Page 5 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 Laxmansinh Mangalsinh in present case at Exh.46 if applicant wants to clarify about the vehicle number, then applicant may examine such I.O. Laxmansinh Mangalsinh in present petition, but applicant not tried to examine the such I.O. Laxmansinh to clarify about the involved vehicle number, therefore, applicant fails to prove that as mentioned in Exh.1 petition that accident occurred with the applicant by Hundai I- 10 Car No. GJ-6-DB-7817. Moreover, applicant cited the case law - National Insurance company V/s. Smt. Pushpa Rana & Others of Hon'ble Delhi High Court dated 20/12/2007. Looking to the facts of the present case and the facts of the case of above citation are on different footings, therefore, above case law is not helpful to the applicant's arguments. Looking to the above discussion, applicant fails to prove his claim and the vehicle No. Hyundai I-10 Car No.GJ-6-DB-7817 involved in the accident. Therefore, answer of Issue No.1 &2 are replied accordingly. Therefore, present claim petition liable to be dismissed."
6. Mr. Mohsin M.Hakim referred to the Page 6 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 panchnama of place of accident, panchnama of the vehicle involved, copy of the insurance policy and certificate of registration of vehicle No.GJ-6-DB-7817, for the perusal of the Court. Certificate of registration of motor vehicle gives the brief description of the vehicle as motor car Hundai I-10 Car No.GJ-6-DB-7817 Sportz in the name of the owner as Maheshbhai Babubhai Patel, who is respondent no.2 in the matter. The panchnama of the vehicle reflects the number as GJ-6-DB-7817 and driver - Ramanbhai Ishwarbhai Gohil, opponent no.1, was present at the time of the panchnama and he had accepted before the panchas about the accident by the said vehicle, when it was under his possession and control. The number plate of the vehicle was verified and accordingly panchnama was drawn. The charge-sheet also reflects the vehicle number as I-10 Car No.GJ-6-DB-7817.
7. In the case of Mangla Ram Vs. Oriental Insurance Company Limited And Others, (supra), the Hon'ble Supreme Court held as under:
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C/FA/3449/2022 ORDER DATED: 15/09/2022 "24. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and Ors. 16, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under the IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in paragraph 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus:
"3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims Page 8 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider no fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third Page 9 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard."
25. In Dulcina Fernandes (supra), this Court examined similar situation where the evidence of claimant's eye-witness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted Page 10 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 in Bimla Devi (supra). In paragraphs 8 & 9, of the reported decision, the dictum in United India Insurance Co. Ltd. Vs. Shila Datta, has been adverted to as under:
"8. In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow:
10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo-motu initiated by the Tribunal.
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(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. ...Page 11 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022
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(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.'
9. The following further observation available in para 10 of the Report would require specific note:
'10. ... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.' "
In paragraph 10 of Dulcina Fernandes, the Court opined that non- examination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability."Page 12 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022
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8. In the above referred judgment, the contention was raised to reject the claim petition under Motor Vehicle Act, on the ground of acquittal in Criminal Case. While referring the judgment of United India Insurance Co. Ltd. Vs. Shila Datta & Ors. reported in (2011) 10 SCC 509, the observation made therein were restricted and it was observed that the rules of pleadings do not strictly apply in the claim petition under Motor Vehicle Act. The Tribunal considers the claim and determines the compensation, not by way of adversarial system and the procedure is required to be followed summary procedure. 8.1 In the case of New India Assurance Co. Ltd. Vs. G.Vijaya Kandiban & Anr., it was held that, FIR cannot be raised to pedestrial higher that the statement on oath. The case involves the delay in lodging of FIR. The defense was raised that there had been no accident between two vehicles, as the claimant and the owner of the vehicles are closed friends and that the claim has been raised on collision to receive compensation from the Page 13 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 Insurance Company.
8.2 In Brestu Ram Vs. Anant Ram And Ors., reported in 1990 ACJ 333, it was observed that even if, there is no report to the police, no adverse inference could be drawn and it was held that Tribunal cannot draw inference as if it was trying Criminal Case.
9. It is to be noted that the provisions of compensation under the Motor Vehicles Act, are enacted for the welfare of the victims of the vehicular accident, who sustained injuries or lost the persons upon whom they were dependent. Thus, strict Rule of evidence are not applicable to claims Tribunal. The evidence and findings of the Criminal Courts are not admissible in claims and should not be used in claim cases.
10. Here, in this case, the learned Tribunal placed reliance on the deposition of the Investigating Officer, which was on the evidence recorded in the criminal case. Page 14 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022
C/FA/3449/2022 ORDER DATED: 15/09/2022 The testimony of the Investigating Officer was produced by the Insurance Company.
11. In case of Anita Sharma And Others Vs. New India Assurance Company Limited And Anr., reported in (2021) 1 SCC 171, the Hon'ble Apex Court while explaining the approach to be adopted by the Tribunal and Court under the Motor Vehicles Act, reiterating the principle has held that, in Motor Accident Claims, the standard of proof is one of preponderance of probabilities, rather than beyond reasonable doubt; approach and role of courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in criminal trial; but, instead should be only to analyse material placed on record by parties to ascertain whether claimant's version is more likely than not true. 11.1 The Division Bench of this Court in case of Gujarat State Road Transportation Corporation Vs. Page 15 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 Kamlaben Valjibhai Vora, reported in 2001 (3) GLR 2528, held in paragraph no.12, as under:
"12. Therefore, the first question which is required to be seriously examined is with regard to the cause of accident, accountability and the issue of rashness and negligence pleaded by the claimants and challenged by the appellant.
Undoubtedly, the issue of negligence is an important and integral part of branch of Law of Tort. The burden of proving the negligence is on the party, like that, the claimant or the plaintiff who asserts it. Such a party, therefore, ought to prove the causation. It is not for the wrong-doer to excuse himself by proving that accident was inevitable and due to no negligence of his part. It is, therefore, the person who suffers the harm or injury to prove affirmatively that it was due to the negligence of the tort-feasor or the other side or the defendant, as the case may be. Such a person has to produce reasonable evidence that the accident was the outcome of the negligence of the other side or in a case of road accident, the driver of the vehicle. If primary facts are, Page 16 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 successfully, constituted - by the evidence of the person wronged or by the person who has become the victim of tort, it is for the alleged tort-feasor or the other side to explain the circumstances, under which the questioned accident occurred. It is not necessary for the plaintiff or the claimant to show that the defendant or the tort-
feasor should be, fully, guilty of
negligence. The negligence could be
established even on the touchstone and yardstick of preponderance of probability. In a case of civil liability, the onus of proof of prima facie showing an element of negligence on the part of the tort-feasor or the other side will shift the onus on the other side to explain the circumstances which led to the tortious act or the road accident. At times, direct evidence is seldom obtainable to substantiate the proposition of the plea of negligence for variety of reasons. It is in this context, to mitigate the hardship of doctrine of "res ipsa loquitur" has been evolved in the law of tort, which, in other words would mean, things speak themselves. It is, in this context, in common law of tort, this doctrine has been recognised and very well followed."
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12. The claimants on record had produced the panchnama, which reflect the vehicle involved. The driver who was driving the said involved vehicle, was present during the course of recording panchnama of the vehicle and he has not denied involvement of the vehicle, rather the panchnama suggests that he has affirmed the said vehicle was under his control at the time of accident. The charge-sheet has been filed against the driver of the vehicle and the charge-sheet also reflects the vehicle number, which has been pleaded by the claimant, which itself is a sufficient evidence to consider the involvement of the vehicle, as stated in the deposition of the claimant.
13. The Tribunal has observed in the judgment that at the time of the charge-sheet of the Criminal Case No.499 of 2009, the vehicle number mentioned by the I.O. is GJ-6-DB-7817, which is a conclusive proof with regard to the informant of the vehicle. In the deposition of the I.O., the vehicle number was noted as GJ-6-DB-7817. The Page 18 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 said oral evidence of the I.O. may be recorded without refreshing his memory by referring to the charge-sheet. The charge-sheet was registered by the I.O., which reflects the vehicle number involved. The contradiction in the deposition of the I.O. before the Criminal Court cannot be relied upon, when the charge-sheet papers itself shows the registration number of the vehicle.
14. Thus, for the reasons given above and the discussions made along with the case laws, this Court finds that the observations made by the learned Judge for dismissal of the claim petition is erroneous, against the standard of requirement of proof to the pleadings in the claim petition under the Motor Vehicle Act.
15. Hence, the present appeal is allowed. The judgment and award dated 14.10.2019 in M.A.C.P. No.61 of 2011 by Motor Accident Claims Tribunal (Aux.), Vadodara is quashed and set aside with direction to the Court below to decide the matter afresh by appreciating the evidence in accordance to the standards laid down for Page 19 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022 C/FA/3449/2022 ORDER DATED: 15/09/2022 deciding the claim petition under Motor Vehicle Act, and with, specific instruction that both the sides may, if necessary, adduce evidence in support of their case.
(GITA GOPI, J.) Pankaj Page 20 of 20 Downloaded on : Sun Dec 25 01:53:47 IST 2022