Punjab-Haryana High Court
Surjit Kaur And Others vs Sukhwinder Singh And Others on 20 July, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
F.A.O. No.701 of 1996
Date of decision: 20th July, 2010
Surjit Kaur and others
... Appellants
Versus
Sukhwinder Singh and others
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Satinder Khanna, Advocate for the appellants.
None for respondents No.1 and 2.
Mr. N.K. Khosla, Advocate for respondent No.3.
KANWALJIT SINGH AHLUWALIA, J.
In the present appeal, the appellants-claimants have assailed the order dated 22.4.1995 passed by the Motor Accident Claims Tribunal, Ludhiana (hereinafter to be referred as, 'the Tribunal'), vide which their claim petition has been dismissed. They have prayed for setting aside the same and accepting the claim petition. A grievance has been made that the Tribunal committed a grave error and acted against law and facts of the case in not awarding compensation to the appellants.
This Court on 12.3.2010 had passed the following order:-
"In this case, the accident took place on 5.10.1990 at 5.00 PM near Sutlej Bridge, G.T. Road, near Village Laddowal, Tehsil and District Ludhiana. In the accident, Mohinder Singh, aged 55 years, expired. His widow, sons and daughters filed a claim petition for award of compensation, to say that in accident truck bearing temporary registration No. BRX-5950 was involved. A reliance was placed upon FIR No.347 dated 5.10.1990 registered at Police Station Sadar Ludhiana at the instance of Chhinder Singh, AW-4. This witness had not F.A.O. No.701 of 1996 2 supported the claimant and resiled from his previous statement i.e. FIR. Since this witness was declared hostile, he was cross- examined by the claimant and contents of FIR were put to him. He denied the same. Rather he had taken a stand that police came to his village and told him that a person of his village had died in an accident and that he should go and identify the body. He went to the spot but since he never knew the deceased so he could not identify the dead body. However, this witness admitted that his signatures were obtained on the FIR, Ex.A-2. The Tribunal had framed Issue no.1 as under.
'1. Whether Mohinder Singh died in a motor vehicle accident on 5.10.90 at 5 P.M. Near Sutlej Bridge near Ladhowal on Ludhiana Jalandhar road on account of the rash and negligent driving of truck bearing temporary registration No.BRX - 5950 with Sukhwinder Singh respondent on its wheels? OPA' The Tribunal, while determining the aforesaid issue, came to the conclusion that it was a blind accident and police had inducted Chhinder Singh just to formalise their records. The Tribunal had further held that even dead body was cremated by the police and legal representatives came to know regarding the death later on. The Tribunal further held that there was not even an iota of evidence to prove the issue under discussion.
Sh. Satinder Khanna, Advocate appearing for the appellants has also contended that Chhinder Singh, despite coercive actions having been initiated by the Tribunal, had not appeared in the witness box and the claim petition was decided against the claimants.
Aggrieved against the same, they have filed FAO No.1684 of 1992 and the abovesaid FIR matter was remanded back to the Tribunal to ensure presence of Chhinder Singh. It is urged that since Chhinder Singh was made to step into witness box under duress, he had not supported the claimants. Be that as it may, the fact remains that there is no legally admissible evidence brought on record to conclude that the accident was caused due to the negligence of the offending vehicle insured with respondent No.3.F.A.O. No.701 of 1996 3
At this stage, Sh. Satinder Khanna, Advocate contends that even though the FIR is not a substantive piece of evidence yet it can be used to confront and corroborate the testimony of the witnesses. There is a judgment in which a legal principle has been propounded that the registration of an FIR can be construed in favour of the claimants as the Motor Vehicle Act is a beneficial legislation. Sh. Satinder Khanna, Advocate assures that the referred judgment will be cited before this Court on the next date of hearing.
On request of Mr. Khanna, case is adjourned to 16.03.2010. In case, Mr. Khanna fails to do so, this Court may decide the present appeal in accordance with law."
In response to order dated 12.3.2010, counsel for the appellants has relied upon a judgment rendered by a Single Bench of this Court in Bansi Yadav and another v. Krishan Kumar and another, 2004(2) PLR
234. It will be pertinent to refer to the following paragraphs of the judgment:-
"6. Shri Kanwaljit Singh, Advocate, learned counsel for the appellants has contended that the Tribunal erred in dismissing the claim petition inasmuch as there is sufficient evidence n record which amongst others includes the FIR which has been exhibited as Exhibit PB and also the post mortem examination report exhibited as Exhibit PA from which it can be clearly shown that the deceased-Siri Ram died due to the motor vehicle accident caused by the offending vehicle driven by Krishan Kumar (respondent No.1). He, further contends that as per the admitted statement of Bansi Yadav, who appeared as PW2, stated that the deceased was earning Rs.700/- per month, out of which he used to send Rs.500/- to his parents, therefore, the compensation as prayed was liable to be awarded.
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9. It is no doubt true that there is no ocular account which may show that Siri Ram died in a motor vehicle accident. However, one cannot lose sight of the fact that case FIR 105 dated 22.7.1985 (Ex.PB) was registered at PS Focal Point, Ludhiana, for the offences under Section 279/338/304-A/427 F.A.O. No.701 of 1996 4 IPC. The said FIR was registered on the statement of one Mukhtiar Mian son of Mani Mian, resident of village Barian, Police Station Katiyan, Distt. Gopalgarh (Bihar). He stated that he alongwith Suresh son of Bhagilu and Jamir had got down from the train at the railway station Ludhiana. They had come to Ludhiana from their village by night train. They got on to a tonga and proceeded towards Viskarma Colony. One of the way the tonga driver boarded one more passenger for focal point. His name later was known as Siri Ram Yadav (deceased) son of Bansi Yadav (claimant). The tonga driver drove the same in the wrong direction and on being told he turned back. At about 2-15 am when the tonga reached 200 yards short of Sherpur bye- pass, one truck came at a high speed without blowing any horn and the bus driver who was driving the bus in a rash and negligent manner struck the tonga on its rear side and they all along with the tonga fell on the left side on the fields and the mare also fell. On hearing the collision, the police officials posted at the round about came at the spot. The tried to stop the bus but it was driven away at a high speed. Due to the accident all received injuries and Siri Ram Yadav died at the spot and another occupant, namely, Jamir died in the hospital. The complainant had noted the number of the bus as HPZ-528. The certified copy of the FIR was tendered in evidence on the statement of the learned counsel for the petitioners appearing before the Tribunal on 9.1.1985. The mode of proof of the FIR or its contents were never challenged by the respondents. Even otherwise, it is well settled that FIR is a public document and certified copy of the same is ex facie admissible in evidence. This is more so in proceedings under the Act where the liability in tort is to be fixed on the preponderance of probabilities. Therefore, the respondents having failed to challenge the mode of proof of the FIR or its contents, it is not for them to now state that the accident did not take place in the manner as is the stand taken by the claimants. Apart from this, the post mortem report is on record as Exhibit PA which has been proved on record on the statement of Dr. S.L.Bansal, Orth. Surgeon, Civil Hospital, Ludhiana who appeared as PW-1. In the post mortem report Exhibit PA, it is mentioned against the column regarding F.A.O. No.701 of 1996 5 Information furnished by police; "Accident injury." Besides the injuries are noted as follows:-
"1. Abrasion 4" x 3" on the forehead.
2. Multiple abrasions on the face.
3. Bleeding from the ears.
4. Abrasion 2" x 2½" on the anterior aspect of the right region.
On exploration of the injury No.1, the skull bone (Parietal right sided) fracture and there is sub-dural haematoma.
The cause of death in my opinion was the injuries sustained by the deceased, which could have been received in a road accident. The copy of the post mortem report Ex.PA and Ex.PA/1 is the pictorial diagram showing the seat of the injuries." (emphasis added) Further reliance has been placed on another Single Bench judgment of this Court rendered in Bara Singh and others v. State of Punjab and others, F.A.O. No.161 of 1988, decided on 20.9.2006. In that case testimony of Mohinder Singh, PW1, author of the FIR was discarded on the ground that he had reached the place of accident 10-15 minutes later.
The Court relying upon the FIR, used it as a corroborative piece of evidence to hold that Mohinder Singh had witnessed the occurrence. The following portion of the judgment is required to be noticed:-
"In these circumstances the statement made in the FIR if has been used for the purpose of contradiction can also be used for the purpose of corroboration. Such is the position of law under Section 162 of Criminal Procedure Code 1973. According to the proviso to Section 162(1) of Cr.P.C, if the statement made in the FIR is proved then the same may be used by the accused and with the permission of the Court by the prosecution to contradict a witness in the manner provided by Section 145 of Evidence Act, 1872 and that any part of the statement made in the FIR could also be used for corroboration. The principle incorporated by Section 162 Cr.P.C. would be applicable and the section itself ipso-facto may not apply. If that F.A.O. No.701 of 1996 6 be so than the FIR and the statement made before the court read together would lead to only one conclusion that there were adequate circumstances supporting the inference that accident was caused by the offending bus which was being driven by Kamikkar Singh, driver-respondent No.4. Therefore, the findings recorded by the Tribunal are liable to be set aside. Even otherwise this Court has held in the case of Girdhari Lal Vs. Radhey Sham reported as 1993(2) PLR 109 that once a driver has been tried of an offence of rash and negligent driving, it is prima-facie safe to conclude that the accident had occurred on that account. I have also gone through the file of the Trial Court in Criminal Case No.137/2/87 which has been decided on 25.9.1992."
Now the question arises that when the author of the FIR has not supported the claimants, can FIR which has been exhibited on the record be relied to hold that driver of the offending vehicle was responsible for causing death of Mohinder Singh deceased due to rash and negligent driving. In the present case, FIR has been exhibited as Ex.A2. The examination-in-chief of Chhinder Singh AW4 reads as under:-
"Mohinder Singh was not known to me. Police came to our village and told me that a person had died of accident and I should go to identify his body. I came to the spot and was asked to identify the deceased. But I told that I could identify him, as I did not know the deceased. (At this stage, the learned counsel for the claimant requests that the witness is suppressing the truth and he may be permitted to ask the questions. On seeing the record, it is noticed that the FIR had been got registered by this witness and now he is apparently, resiling the version, which he had projected in the FIR. Therefore, he is allowed to cross-examine him."
In the present case, Chhinder Singh AW4, author of the FIR, had appeared in the Court and stated in categoric terms that police had F.A.O. No.701 of 1996 7 obtained his signatures on the pretext that they have to get the dead body identified. In cross-examination, the witness stated as under:-
"It is correct that I had not witnessed any occurrence and my signatures on the FIR were obtained by the police without reading over the same."
In this case, authenticity of the FIR which has been described as a public document in Bansi Lal's case (supra), is itself in doubt. As held in Bara Singh's case (supra), FIR can be used to corroborate the testimony of the witness but cannot replace the same. Thus, no reliance can be placed on the FIR to hold that driver of the offending vehicle is responsible for causing death of Mohinder Singh, even though FIR can be considered to the extent that indeed vehicular accident had taken place and police, after registration of the criminal case, had put the driver of the offending vehicle to the trial.
Having said that registration of the FIR is one circumstance, can it be said that the Tribunal had conducted enquiry within the meaning of Section 168 of the Motor Vehicles Act, 1988 (hereinafter referred to as, 'the Act')? Another question which arises for consideration is as to what shall constitute an enquiry, as stated under Section 168 of the Act. It is to be noticed that enquiry under Section 168 of the Act is not the same as is the trial under Codes of Civil or Criminal Procedure. What is the scope of enquiry, it requires determination. Section 168 of the Act reads as under:
"Section 168. Award of the Claims Tribunal- On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the F.A.O. No.701 of 1996 8 vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
Section 169 of the Act further states that the Claims Tribunal may follow such summary procedure, as it thinks fit. Section 169 of the Act reads as under:
"Section 169. Procedure and powers of Claims Tribunals-
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry."F.A.O. No.701 of 1996 9
Registration of the case; follow up action by the police; which includes inquest, post-mortem, recovery of any documents from the spot, site plan of the spot prepared by the Investigating Officer or by the Draftsman; photographs, if any, of the spot, are various circumstances, which can help the Tribunal to take the enquiry to its logical conclusion.
A similar question had engaged the attention of Delhi High Court in 'Mayur Arora v. Amit @ Pange and others' MAC.APP.609/2009 decided on 12th April, 2010. J.R. Midha, J, who has done pioneering work in the Motor Accident Claims Tribunal, noticed the reasons advanced by the Amicus Curiae and made an effort to determine the scope and ambit of the enquiry as envisaged under Sections 168 and 169 of the Act. It will be necessary to extensively rely upon the judgment rendered in Mayur Arora's case (supra). Therefore, the following portions of the said judgment are hereby reproduced:
"9.2. New India Assurance Company Limited vs. Anita, order dated 6th January, 2010 in SLP (Civil) No.35537/2009- The Hon‟ble Supreme Court has held that the summary procedure under Sections 168 and 169 of the Motor Vehicles Act, 1988 should be consistent with the rules of natural justice but the Claims Tribunal is not bound by the technical rules of evidence. The findings of the Hon'ble Supreme Court are reproduced hereunder:-
'We may also observe that a Tribunal constituted under the Act is not a regular Court and it is required to decide applications filed for compensation by adopting a summary procedure consistent with the rules of nature justice (Section 168 and 169(1) of the Act). By virtue of Section 169(2), the Tribunal is clothed with the powers of Civil Court for the purpose of taking evidence on oath, enforcing the attendance of witnesses and compelling the discovery and production of documents and material objects but there is nothing in the Act from which it can be inferred that the Tribunal is bound by the technical rules of evidence. Therefore, the Tribunal cannot be faulted for having allowed the parties to lead secondary F.A.O. No.701 of 1996 10 evidence. Rather, that was the only course available to the Tribunal for doing justice to the parties because the original file was lost in 1994 and the case had to be decided on the basis of reconstructed file.' XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 9.4. Abdul Subhan vs. State (NCT of Delhi), 2007 CriLJ 1089, 133(2006)DLT562-
This Court has issued following directions for proper investigation of road accident cases:-
'13. Before I part with this case I would like to make it known that I have come across various cases of a similar nature involving allegations of rash and/or negligent driving in which I find that the investigations carried out are below par. It is a well-known fact that road accidents are on the rise and many of these accidents result in fatalities. It is also becoming more and more apparent that the investigating agencies are not investigating such accidents in a proper and scientific manner. The result and consequence of which is that even those persons who might have been guilty for having committed offences under Sections 279/304A IPC are being acquitted on the basis of benefit of doubt or lack of evidence. This is not a very happy situation. In cases of road accidents particularly those which result in fatalities, the investigation should be carried out in a swift and scientific manner.
13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the appreciation of courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of the tyre skid marks of the vehicles F.A.O. No.701 of 1996 11 involved in the impact go a long way in indicating the speeds at which the vehicles were traveling. This would enable the courts to examine the evidence in a much more objective manner and the courts would not be faced with vague and subjective expressions such as "high- speed".
13.2. The mechanical inspection reports that are prepared are also, I find, in a majority of cases, of a very superficial and cursory nature. The inspection ought to be carried out by qualified personnel who are able to indicate in their reports the exact physical conditions of the vehicles. They should be able to point out with exactitude the damage suffered by the vehicles as a result of the impact. The mechanical inspection report should indicate all the tell-tale signs of the collision such as the paint of one vehicle rubbing off on the other. It should also indicate as to whether the vehicles were mechanically sound or not prior to the impact so as to enable the court to arrive at a conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control.
13.3. As a rule, photographs ought to be taken not only of the vehicles involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by courts.
13.4. The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5. Furthermore, the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case.
13.6. The drivers of the vehicle involved must also be subjected to tests to reveal whether they had consumed any intoxicants.
13.7. Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who F.A.O. No.701 of 1996 12 are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because, no criminal court would (and ought not to) convict any person merely on the basis of conjectures, assumptions, probabilities. All elements of subjectivity need to be eliminated and the investigation should be such that, when a chargesheet is filed, the court is presented with a case which when taken objectively would lead to the inescapable conclusion that a conviction is maintainable.' XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 9.16. Somari Devi vs. Ragwar Singh in FAO No.884/2003 decided on 22nd May, 2009-
This Court has elaborated the scope of Section 165 of the Indian Evidence Act, 1872. The relevant findings of this Court are reproduced hereunder:-
'12. The learned Tribunal could have invoked Section 165 of the Indian Evidence Act which is reproduced hereunder:-
'SECTION 165. JUDGE'S POWER TO PUT QUESTIONS OR ORDER PRODUCTION -
The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross- examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this Section shall not authorize any Judge to compel any witness to answer any question or F.A.O. No.701 of 1996 13 produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.'
13. This section invests the Judge with plenary powers to put any question to any witness or party; in any form, at any time, about any fact relevant or irrelevant.
Section 165 is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this section is that in order to get to the bottom of the matter before it, the Court will be able to look at and inquire into every fact whatever and thus possibly acquire valuable indicative evidence which may lead to other evidence strictly relevant and admissible. The Court is not, however, permitted to found its judgment on any but relevant statements.
14. A Judge, who at the trial merely sits and records evidence without caring so to conduct the examination of the witnesses that every point is brought out, is not fulfilling his duty.
15. Mr. Edmund Burke arguing in Warren Hastings Trial said that it is the duty of the Judge to receive every offer of evidence, apparently material, suggested to him, though the parties themselves through negligence, ignorance, or corrupt collusion, could not bring it forward. He has a duty of his own, independent of them, and that duty is to investigate the truth. If no prosecutor appears, the Court is obliged through its officer, the clerk of the arraigns, to examine and cross examine every witness who presents himself; and the Judge is to see it done effectively, and to act his own part in it.
F.A.O. No.701 of 1996 1416. In Bartly vs. State, 55 Nebr 294 : 75 N.W.832 Harrison, C.J., said:
'It is undoubtedly necessary that the Judge who presided should acquire as full a knowledge of the facts and circumstances of the case on trial as possible, in order that he may instruct the jury, and correctly, to the extent his duty demands, shape the determination of the litigated matters, that Justice may not miscarry, but may prevail; and doubtless, it is allowable at times, and under some circumstances, for the presiding Judge to interrogate a witness.'
17. The object of a trial is, first to ascertain truth by the light of reason, and then, do justice upon the basis of the truth and the Judge is not only justified but required to elicit a fact, wherever the interest of truth and justice would suffer, if he did not.
18. The framers of the Act, in the Report of the Select Committee published on 1st July, 1871 along with the Bill settled by them, observed as follows:-
'Passing over certain matters which are explained at length in the Bill and report, I come to two matters to which the Committee attach the greatest importance as having peculiar reference to the administration of justice in India. The first of these rules refers to the part taken by the judge in the examination of witnesses; the second, to the effect of the improper admission or rejection of evidence upon the proceedings in case of appeal.
That part of the law of evidence which relates to the manner in which witnesses are to be examined assumes the existence of a well-
educated Bar, co-operating with the Judge and relieving him practically of every other duty than that of deciding questions which may arise between them. I need hardly say that this state of things does not exist in India, and that it would be a great mistake to legislate as if it did. In a great F.A.O. No.701 of 1996 15 number of cases - probably the vast numerical majority - the Judge has to conduct the whole trial himself. In all cases, he has to represent the interests of the public much more distinctly then he does in England. In many cases, he has to get at the truth, or as near to it as he can by the aid of collateral inquiries, which may incidentally tend to something relevant; and it is most unlikely that he should ever wish to push an inquiry needlessly, or to go into matters not really connected with it. We have accordingly thought it right to arm Judges with a general power to ask any questions upon any facts, of any witnesses, at any stage of the proceedings, irrespectively of the rules of evidence binding on the parties and their agents, and we have inserted in the Bill a distinct declaration that it is the duty of the Judge, especially in criminal cases, not merely to listen to the evidence put before him but to inquire to the utmost into the truth of the matter.'
19. The Judge contemplated by Section 165 is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided.' XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX
10. THE 'INQUIRY' CONTEMPLATED UNDER SECTION 168 of MOTOR VEHICLES ACT, 1988 10.1. The inquiry contemplated under Section 168 of the Motor Vehicles Act, 1988 is different from a trial. The inquiry contemplated under Section 168 of the Motor Vehicles Act F.A.O. No.701 of 1996 16 arises out of a complaint filed by a victim of the road accident or an AIR filed by the police under Section 158(6) of the Motor Vehicles Act which is treated as a claim petition under Section 166(4) of the Motor Vehicles Act. These provisions are in the nature of social welfare legislation. Most of the victims of the road accident belong to the lowest strata of the society and, therefore, duty has been cast upon the police to report the accident to the Claims Tribunal and the Claims Tribunal is required by law to treat the Accident Information Report filed by Police as a claim petition. Upon receipt of report from the police or a claim petition from the victim, the Claims Tribunal has to ascertain the facts which are necessary for passing the award. To illustrate, in the case of death of a victim in a road accident, the Tribunal has to ascertain the factum of the accident; accident having being caused due to rash and negligent driving; age, occupation and income of the deceased; number of legal representatives and their age. If the claimants have not produced copies of the record of the criminal case before the Claims Tribunal, the Claims Tribunal is not absolved from the duty to ascertain the truth to do justice and the Claims Tribunal can summon the investigating officer along with the police record.
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12. SUBMISSIONS OF THE LEARNED AMICUS
CURIAE
Dr. Arun Mohan, the learned amicus curiae has, based on his research, made following submissions on the scope of "Inquiry" under Sections 168 and 169 of the Motor Vehicles Act, 1988:-
12.1. In the dispensation of justice, the role of procedure is to enable consistency, accuracy and predictability in the outcome. All judicial procedures have to conform to the principles of Natural Justice where the prime factor is the right to be heard.
12.2. There are broadly two procedural systems: (1) Adversarial; and (2) Inquisitorial.F.A.O. No.701 of 1996 17
12.3. The first, in relation to criminal law also called Accusatorial, is to be found in England (on which pattern our legal system is based), USA, Canada and Australia.
12.4. The second, Inquisitorial, is found in the Continental Europe.
12.5. In broad terms, an Adversarial system refers to the common law system of conducting proceedings in which the parties, and not the Judge, have the primary responsibility for defining the issues in dispute and for investigating and adjudicating the dispute.
12.6. In the Adversarial system, two or more opposing parties gather evidence and present the evidence and their arguments to the Judge. The Judge knows nothing of the litigation until the parties present their cases to him as the decision maker.
12.7. The term „Inquisitorial‟ refers to civil code systems in which the Judge has such primary responsibility.
„Inquisitorial‟ also connotes an Inquiry where the decision maker investigates a matter.
12.8. In the Inquisitorial system, the presiding Judge is not a passive recipient of information. Rather, the presiding Judge is primarily responsible for supervising the gathering of the evidence necessary to resolve the case. He actively steers the search for evidence and questions the witnesses, including the respondent or defendant. The lawyers play a more passive role, suggesting routes of Inquiry for the presiding Judge and following the Judge‟s questioning with questioning of their own.
12.9. An Inquisitorial system is a legal system where the Court or a part of the Court is actively involved in determining the facts of the case, as opposed to an Adversarial system where the role of the Court is solely that of an impartial referee between parties. Inquisitorial systems are used in some countries with civil legal systems as opposed to common law systems.
12.10. The Court procedures in an Inquisitorial system vary from country to country.
12.11. Even countries using common law, including the United States, may use an Inquisitorial system for summary F.A.O. No.701 of 1996 18 hearings in the case of misdemeanors such as minor traffic violations.
12.12. In some jurisdictions, the trial Judge may participate in the fact-finding Inquiry by questioning witnesses even in Adversarial proceedings.
12.13. Even in our criminal trials which are purely Adversarial (or Accusatorial), the recent trend has been for a more active role for the Judge.
12.14. The goal of both the Adversarial system and the Inquisitorial system is to find the truth. But the Adversarial system seeks the truth by pitting the parties against each other in the hope that competition will reveal it, whereas the Inquisitorial system seeks the truth by questioning those most familiar with the events in dispute. The Adversarial system places a premium on the individual rights of the accused, whereas the Inquisitorial system places the rights of the accused secondary to the search for truth.
12.15. The relative merits and demerits of Adversarial systems have been extensively debated.
12.16. The emphasis on „winning at all costs‟ without commensurate concern for truth-seeking dismays some citizens, and a growing number are demanding reforms in the legal system.
12.17. The Adversarial system has severe critics as well as staunch defenders. The Courtroom is seen as a battleground or playing field where contestants vie for victory.
12.18. Although many concede that the Adversary system is imperfect and that it may be subject to abuse and manipulation, many still believe that, by giving all parties and their advocates an opportunity to present evidence and arguments before an impartial Judge, it promotes a free and pluralistic society with the best available means of settling disputes.
12.19. The Code of Civil Procedure, 1908 is a Code which embodies many rules of procedure which were drawn from common law.
12.20. Section 2(g) of the Criminal Procedure Code [1 of 1974] defines 'inquiry' as being every inquiry, other than a trial, conducted under that Code by a Magistrate or Court. The F.A.O. No.701 of 1996 19 Cr.P.C. being primarily Accusatorial, the term 'inquiry' is used more as a forerunner to a trial. Though the term Inquiry has been used also for proceedings which culminate in restraints or other action, but not punishment.
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XXXX XXXX XXXX XXXX
12.23. The term 'Inquiry' can also be of varying kinds. There can be three types of Inquiries:
12.23.1 An Inquiry which is only fact-finding, as for example an Inquiry under the Commissions of Inquiry Act;
12.23.2 An Inquiry which is forerunner to a trial, for example an Inquiry under the Cr.P.C.; and 12.23.3 An Inquiry which culminates in a final decision determining a right or liability and susceptible to a first appeal.
12.24. The procedure for the third type of inquiry has to be somewhat deeper than they would be with an Inquiry that does not culminate in a final decision for determination of rights and liabilities. Further, for this (third) type, there has also to be a mix of the Adversarial element.
12.25. An Inquiry contemplated by Section 168(1) of Motor Vehicles Act, 1988 is of this type. It is a different matter that in practice, before the Claims Tribunals, the typical civil Court mindset - of pure Adversarial - has dominated and the real purpose has been lost.
12.26. The statutory provision is as clear in its wording as it could be. It confers complete powers upon the Presiding Officer of the Claims Tribunal to follow such summary procedures as he thinks fit. Moreover, as noted above, it is an Inquiry as distinct from a trial. Unfortunately, Courts have not viewed the matter in its correct perspective.
12.27. As far as the Claims Tribunal is concerned, it is a lean towards something appropriate which can be loosely called a mix of Inquisitorial and Adversarial procedures which are summary and, more importantly, tailored to the subject. Such F.A.O. No.701 of 1996 20 tailoring being carried out in exercise of the statutory edict -
follow such summary procedure as it (the Presiding Officer / Claims Tribunal) thinks fit.
12.28. The procedure has always been adapted to the needs of the jurisdiction which is being exercised.
12.29. Sections 168 and 169 of the Motor Vehicles Act, 1988 does not use the word 'trial', but uses the word 'inquiry' and that too a 'summary' one. It will need to be a little more detailed - so as to make the right to be heard meaningful - but the overall objective to determine just and fair compensation remains paramount, in which case procedure can be quite short and need not replicate the typical civil Court trial.
12.30. The statute has allowed the Claims Tribunals to follow such summary procedure as it thinks fit, subject to any rules. This really means that a far wider discretion to evolve procedure has been given to the Claims Tribunal than has been given to the civil Court. However, in following the procedure, Claims Tribunal cannot ignore the principles of Natural Justice. The Claims Tribunal has to render a judgment which on facts approximates best with what transpired and on law shows a fair and correct application to the facts as are admitted or as (the disputed ones) are found.
12.31. In our system of jurisprudence, what should be the depth of procedure is a question that must be kept uppermost in the judicial mind. Too shallow and too summary is as wrong as having one so deep, detailed and in-depth that they consume too long a time and defeat the purpose.
12.32. Despite the elapse of over two decades of the new Act plus 25 years of the old Act, one has not seen (except in the recent past) the conceiving and following - as a part of 'as it thinks fit' - of such summary procedure as would be efficient and effective. In my respectful submission, it therefore falls upon the Hon'ble High Court to exercise its jurisdiction to conceive and detail such procedure, and do so as part of issuing a guideline judgment.
12.33. Most of that which has to be proved before or considered by the Claims Tribunal is something that: (1) can be found at the time of investigation, i.e., within a day or two of the accident; and (2) can be verified by a field agent of the F.A.O. No.701 of 1996 21 insurance company as to its authenticity, thus preparing a near complete package from which a matter can be fairly without really anything more material, (adducing of evidence) inquired into/adjudicated upon by the Claims Tribunal though as a matter of tradition, some opportunity to lead evidence may be given.
12.34. Going into this further is necessary, because there are many poor claimants where after years of waiting, the Claims Tribunal has passed an order (to the effect) the claimants have failed to prove and therefore the petition is dismissed. The purpose of the statute is social purpose as the statute uses the word (and rightly) inquiry. It does not use the word 'trial'.
12.35. What does this 'inquiry' mean? The first is the Proportionality; and the second is Tailoring of procedures. For the first, overspeeding by 10 kmph, jumping of a traffic light and the other is a terrorist act where it would be a sentence to death. One can be short and swift and the other will have to be comprehensive. Second, to be able to serve its larger purpose, i.e. hand out efficient and fair justice, a procedure must always be tailored to the subject (or offence). This way, it yields: (1) more accurate justice at minimal costs in terms of money; and (2) minimal time consumption.
12.36. The result is that the deprivation in that one year will defeat justice. It will not apply the balm at a point of time by when the wound can heal and to offer the balm when the wound would have become chronic and not heal, is no justice. If medical attention to the injured in accident needs to must begin well within one hour, the legal attention must also conclude well within one year.
12.37. On the question of material facts, the facts in issue and evidentiary facts, the following excerpts from 'Justice Courts and Delays' (Chapter 6 Topic 4 at page 453 - paras 14 and 15) are relevant:-
'14 The word 'fact' has been used in law of evidence, to mean and include the factum probandum or the principal fact to be proved and the factum probans or the evidentiary fact from which the principal fact follows immediately or by inference. Put differently, 'Facts' may F.A.O. No.701 of 1996 22 be either 'facts-in-issue' which are the principal matters in dispute or merely 'relevant facts' which are evidentiary in nature and purpose, and therefore, directly or by inference, prove or disprove the 'facts-in-issue'.
15 Broadly stated, in current use there are three categories of Facts:
Material facts May or may not be in dispute,
but are necessary to be averred
so as to make the suit
maintainable.
Facts-in-issue Arise from Pleadings (and also
from the contents of a
document, answers to
interrogatories, statement
before issues etc), but do not,
repeat not, include such of the
material facts which are not in
dispute.
Evidentiary Such facts as are necessary to
facts be brought on record so as to
prove or disprove the facts-in-
issue.
The first, 'Material facts' are necessary to be stated in order to constitute a cause of action for a claim, or form the basis of a defence. The Second, or the factum probandum or the facts-in-issue, are the principal matters in dispute and are the facts to be proved. The third -
factum probans - are evidentiary facts, which directly or by inference, prove or disprove the facts-in-issue (factum probandum).' 12.38. There is a duty of the insurance company. Let us
- by picking up a hundred decided cases from the Claims Tribunal - ask ourselves as to that which was adduced as evidence: How much of it was really necessary? How much of it was missing? and, more importantly, how much could have been received as information at the initial stage? and then, after giving an opportunity to the insurance company to ascertain F.A.O. No.701 of 1996 23 and verify (and not simply deny) can be treated as evidence sufficient for the purposes of inquiry.
And, what was that which could not have been collected at the time of investigation and presented as a package to the Claims Tribunal, and required to could not be adduced as evidence at the trial or Inquiry before the Claims Tribunal (assuming it to be a trial).
These questions have to be split as short pointed questions which are placed within a chain of facts where the bulk - hopefully - has been identified and is not disputed. Thus, assuming 20 facts that were necessary to decide the case, at least 15 (or more) are identified and then admitted in the chain of facts. Of the remaining five (or less) also, the scope should be narrow and the onus correctly placed.
To explain the pointed or the narrow range of the issue, and we go here in relation to the income, to have an issue which reads:
'What amount was the deceased earning? is no issue, as that gives a range from a beggar at the street corner on the one side to a big time stock operator on the other.
An issue like this should be preceded by a note based on the investigation and the documents and the positive defence where the prefatory note (or the post- script) could record the admitted facts as to the occupation and then record the range, as for examples Rs.5 lakhs per year as contended by the claimants or only Rs. 50,000 (or minimum wages) per year as contended by the insurance, or anywhere in between.
Similarly, if he left behind five relatives, who all was or was not a relative and if so, a dependent on the deceased ought to be a separate small or sub-issue with prefatory notes and post-scripts.
The material for these prefatory notes or post- scripts ought to be on the basis of information collected soon after the accident, and the positive defence of the insurance company. Many of the papers so collected can be taken as self-proving and the Claims Tribunal can come to a decision.' F.A.O. No.701 of 1996 24 12.39. In a typical civil trial of the 19th century, almost all onus was upon the plaintiff. Here, it is an inquiry, but even if it were a trial, the onus - by reason of:
(a) prior investigation;
(b) documents collected and prima facie showing the state of affairs;
(c) positive defence of the insurance company;
and
(d) presumptions;
has to be placed on the claimant, the insurance company or even the police. However, this is not something which is based on the personal knowledge of the police, but on record and papers that were collected by them during the course of investigation.
All documents in power and possession of the parties which are relevant to the controversy should be produced and the affidavit of discovery and production of documents (on the lines of Form No.5 Appendix C to the Code) should be filed (or ordered) in routine. This responsibility is greater if the party is an instrumentality of the State as many of the insurance companies are.
Insofar as the insurance companies in the private sector are concerned by reason of their placement and their duties towards society generally, in this case the principle would equally apply to the insurance companies in the private sector.
If the Presiding Officer of the Claims Tribunal senses that all documents or a particular document or a copy of the record has not been produced, he can always make an order directing discovery and production of documents on affidavit by way of special discovery (which is discovery relating to a particular document or a class of documents or copy/ies of record) or a general discovery of documents relating to the controversy.
12.40. The aforesaid submissions of the amicus curiae have been noted verbatim with a view to help generate ideas in order to develop more efficient procedures and practices. Number of other submissions made by the amicus curiae have been accepted, but have not been noted above for sake of brevity.
F.A.O. No.701 of 1996 2513. PRINCIPLES APPLICABLE TO INQUIRY UNDER SECTIONS 168 AND 169 OF THE MOTOR VEHICLES ACT, 1988 With respect to the nature of inquiry, this Court accepts the following principles to be applicable to the inquiry under Sections 168 and 169 of the Motor Vehicles Act, 1988:-
13.1. On a fair reading of the statute, the wide power given to the Tribunal, the absence of 'onus' upon the claimant, the general position of the claimants and their wherewithal with the social obligation of the welfare State, all indicate that the procedure of the Claims Tribunal has to be Inquisitorial though keeping in view that most other procedures in the country are Adversarial, it would be proper to conceive and put in practice something which is a mix of the two.
13.2. To explain the difference, the Claims Tribunal would not be simply passive, give both the parties sufficient opportunity to adduce evidence, and at the end of the 'trial' announce who has won. At the same time, he will not assume the role of investigator and of the prosecutor apart from being the Judge in the Inquisitorial system.
13.3. Even in the pure Adversarial (where, in the past, the Judge remained passive and even in civil and criminal litigation), there has been a slow and steady move towards more active participation of the Judge. There have been two factors. The first is to do greater justice by removing imbalance between the two parties (and their lawyers); and the second is to more efficiently manage the cases and bring about efficiency.
13.4. The proceedings before the Claims Tribunal are more of an Inquiry rather than an Adversarial trial. In other words, it is not that the claimant has to allege everything which the insurance can (without bothering to ascertain the facts) deny everything and then the Court expects proof of one and every allegation made in the claim petition.
13.5. Keeping in view the wording of the statute, the use of the phrase 'hold an inquiry' as also particularly the absence of the word 'trial' and; the larger purpose of the statute as demonstrated by the Statement of Objects and Reasons;
observation into what has gone on; the type of the claimants;
F.A.O. No.701 of 1996 26the type of the issues; and the need to bring about efficiency, procedure as are tailored to the subject has to be evolved by the Claims Tribunal.
13.6. The nature of the claims before the Claims Tribunal do not vary as widely as they do before a Civil Court, and there is an element of stereotype in them.
13.7. The facts which are to be ascertained are usually known and it is to be found out whether those facts exist or do not exist. It is only in that sense that an Inquiry is to be carried out.
13.8. Most of these facts are such which are to be proved by documents, generally as copies of records. If these are listed and summoned so that they are before the Claims Tribunal, it can make a world of a difference.
13.9. There is a distinction between proof of a document and what the document proves. Some of the documents can be taken at their face value. In fact, the onus is reversed so that the evidence in proof can be asked only if there is specific denial. The photocopies of documents or entries from the Transport Department can be presumed as correct leaving the onus to disprove on one who disputes it. Every document produced does not require a proof as if it were an unregistered Will leaving a large estate to an outsider.
13.10. If an allegation is denied, the respondent must state his reasons for the denial and if necessary, put forward his own version of events. Subject to certain exceptions, the general rule is that if a defendant fails to deal with an allegation, it is to be taken as an admission.
13.11. If following this procedure which is generally collection of documents, a case appears to be one which can be disposed of at the first hearing, it should be so disposed of. There can, however, be cases where there is need for further inquiry. But that will have to depend upon whether a sufficient defence has been raised.
13.12. If the case needs further inquiry, the Court may frame issues. Issues help as a signpost to how the matter has to be proceeded with. They are signposts of topics (facts). However, before the issues, if a prefatory note on the facts which are not in dispute or not sufficiently in dispute or facts F.A.O. No.701 of 1996 27 that can be taken judicial notice of, is made, the controversy stands narrowed down, the issues are more accurately framed and serve a greater purpose.
13.13. The present practice of framing the issues in a wide form calls for a change. Instead, what the Claims Tribunals as a part of 'following such procedures as it thinks fit' should do is to first go through the file and identify: (i) the chain of material facts and events (most of which are ordinarily not disputed); (ii) the scope of defences that are permissible; (iii) the factual questions that survive for decision; (iv) the missing links, and (v) the points of law which will need application to the facts and determination. After putting down a page or two of written material to depict the aforesaid, and also narrow down the controversy, frame pointed issues which bring out the factual and legal questions. The onus of the sub-issues has to be more correctly placed. The defence expected has to be not a mere denial but a positive one after the Respondents have investigated. The scope of the issues when framed could be narrow and not wide.
13.14. It is not always that if issues have been framed, further evidence is required. The matter can be disposed of after hearing the arguments based on the material on record or some evidence on a specific point may be called for. In any inquiry, there is also a duty of the Court to see that the evidence which could have been brought is brought so that justice is done. A template for a judgment keeping in view the various types of cases that come, can be developed by Claims Tribunal in consultation with each other and then slowly perfected over time.
13.15. For these issues, a form which is more of a checklist can be developed and the Claims Tribunal can simply correlate the claim, the response and the material on record and then come to a conclusion whether any issue arises or is to be treated as an admitted fact or what could the pointed issue that is to be framed.
13.16. These principles may be kept in mind by the Claims Tribunals while dealing with the motor accident claim cases.
F.A.O. No.701 of 1996 2814. SUMMARY OF PROCEDURES The procedure for investigation of motor accident claim cases by the police under Section 158(6) of the Motor Vehicles Act and the inquiry by the Claims Tribunal under Sections 166 (4), 168 and 169 of the Motor Vehicles Act, 1988 read with the Delhi Motor Accidents Claims Tribunal Rules, 2008 in terms of the aforesaid directions issued by the Hon'ble Supreme Court and this Court is summarized as under:-
14.1. Immediately upon the receipt of the intimation of the accident, the Investigating Officer of the police shall inspect the spot of accident, prepare a site plan and also take photographs of the accident spot. The Investigating Officer shall also conduct spot inquiry by examining the eye- witnesses/bystanders.
14.2. The Investigating Officer shall intimate the accident to Accident Claims Tribunal within 48 hours of the accident.
14.3. If the particulars of insurance are available, the intimation of the accident shall also be given to the concerned Insurance Company of the offending vehicle.
14.4. The particulars of the accident shall also be uploaded on the website of Delhi Police.
14.5. Immediately upon receipt of intimation, the Insurance Company shall appoint a Designated Officer for each case. The Designated Officer shall be responsible for dealing/processing of that case and for taking decision for the amount of compensation payable in accordance with law after the Accident Information Report by the police.
14.6. The Investigating Officer shall collect the relevant evidence relating to the accident as well as computation of compensation.
14.7. The Investigating Officer shall file the Accident Information Report with the Claims Tribunal within 30 days of the accident with copy to the Insurance Company and the claimant.
14.8. The Accident Information Report shall be accompanied by certified copies of the FIR, site plan, photographs, registration cover, driving licence, Insurance policy, permit, MLC, post-mortem report, challan and the documents relating to the proof of age, occupation, income and F.A.O. No.701 of 1996 29 the number of legal representatives and their age in death case and proof of injuries and expenditure incurred by the insured in injury cases.
14.9. Where the Investigating Officer is unable to complete the investigation of the case within 30 days for reasons beyond his control, such as cases of hit and run accidents, cases where the parties reside outside the jurisdiction of the Court cases, where the driving licence is issued outside the jurisdiction of the Court, or where the victim has suffered grievous injuries and is undergoing treatment, the Investigating Officer shall approach the Claims Tribunal for extension of time whereupon the Claims Tribunal shall suitably extend the time in the facts of each case.
14.10. The Investigating Officer shall produce the driver, owner, claimant and eye-witnesses before the Claims Tribunals along with the Accident Information Report. However, if the Police is unable to produce the owner, driver, clamant and eye-
witnesses before the Claims Tribunal on the first date of hearing for the reasons beyond its control, the Claims Tribunal shall issue notice to them to be served through the Investigating Officer for a date for appearance not later than 30 days. The Investigating Officer shall give an advance notice to the concerned Insurance Company about the date of filing of the Accident Information Report before the Claims Tribunal so that the nominated counsel for the Insurance Company can remain present on the first date of hearing before the Claims Tribunal.
14.11. The police shall follow the Manual prepared by them for investigation of motor accident claim cases and filed in the case of Rajesh Tyagi vs. Jaibir Singh (supra). The relevant instructions contained in the Police Manual and the standing order No.157/2008 at page Nos.14 to 21 and the check list prepared by the police in this regard are attached to this order for ready reference of the Claims Tribunal.
14.12. The Investigating Officer shall also comply with the directions given by this Court in Rajesh Tyagi vs. Jaibir Singh (supra) and Abdul Subhan vs. State (NCT of Delhi) (supra). The checklist prepared by the police shall be attached to the Accident Information Report.
F.A.O. No.701 of 1996 3014.13. The Claims Tribunals shall examine whether the Accident Information Report is complete in all respects and shall pass appropriate order in this regard. If the Accident Information Report is not complete in any particular respect, the Claims Tribunal shall direct the Investigating Officer to complete the same and shall fix a date for the said completion.
14.14. The Claims Tribunals shall treat the Accident Information Report filed by the Investigating Officer as a claim petition under Section 166(4) of the Motor Vehicles Act. However, where the Police is unable to produce the claimants on the first date of hearing, the Claims Tribunal shall initially register the Accident Information Report as a miscellaneous application which shall be registered as a main claim petition after the appearance of the claimants.
14.15. The Claims Tribunal shall list the miscellaneous Accident Information Report (AIR) for preliminary hearing to enable the police to notify such date to the victim/family of the victim, owner, driver and insurer of the vehicle involved in the accident.
14.16. After the appearance of the claimants, the miscellaneous petition shall be converted and registered as a claim petition. Where the claimant(s) have filed a separate claim petition, the AIR shall be tagged to the claim petition. If no independent claim has been preferred, the Claims Tribunal shall call upon the claimant to submit statement of facts regarding compensation in Form 'G' along with documents mentioned in Rule 8 of the Rules.
14.17. The Claims Tribunal shall also inquire and satisfy itself that the AIR relates to real accident and that is not the result of any collusion/fabrication.
14.18. The notice to the claimant, owner, driver and eye- witness shall be served through the Investigating Officer of the police. The notice to the Insurance Company shall be served through the nominated counsel of each company.
14.19. The Claims Tribunal may examine the claimant on oath to elucidate the material information (Rule 10).
14.20. The Claims Tribunal may visit the site of the accident for local investigation but in such event, must prepare F.A.O. No.701 of 1996 31 a brief memorandum of facts observed, making it part of the record (Rule 15).
14.21. The Claims Tribunal may require production of the vehicle involved in the accident for inspection (Rule 16) 14.22. The Claims Tribunal may summarily examine the Investigating Officer of the police, the eye-witness or any person likely to be able to give information relating to such case, whether such person has been or is to be called as a witness in the case or not and whether any or all of the parties are present or not. The notice to the eye-witness be sent through the police (Rule 17).
14.23. The Claims Tribunal may direct the Medical Officer or the Board of Medical Officers to examine the injured and give opinion indicating the degree and extent of disability, if any suffered within 15 days of receipt of direction (Rule 18).
14.24. The Claims Tribunal shall obtain supplementary information and documents, which may be found necessary from the police, medical and other authorities (Rule 25).
14.25. If the Claims Tribunal finds that the claim petition cannot be disposed of at one hearing, it shall record the reasons which necessitate the adjournment (Rule 29).
14.26. The designated officer of the Insurance company appointed within 10 days of receipt of intimation of the claim, shall take a reasoned decision with respect to the compensation payable in accordance with law to the claimant within 30 days of the receipt of the Accident Information Report and shall submit the same with the Claims Tribunal.
14.27. If there is no defence under Section 149 of the Motor Vehicles Act, 1998, the Claims Tribunal may direct the Insurance companies to deposit the admitted amount according to their computation with the Claims Tribunal following the principles of Order XII Rule 6 of the Code of Civil Procedure. The Tribunal shall by a summary inquiry ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.
14.28. With respect to the pending cases relating to Motor Accident Claims, all the Insurance Companies shall appoint a designated competent officer responsible for F.A.O. No.701 of 1996 32 processing of each case within 10 days and such officer shall process the claim within 30 days and pass a reasoned decision/order in writing about the amount payable in accordance with law. The decision of the designated officer along with the report of the Investigator shall be filed before the learned Tribunal within 20 days of the date of the decision of the designated officer.
14.29. The Tribunal shall categorize the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability. Wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary inquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition. Where the insurer disputes the liability, the Claims Tribunal shall frame the issues.
14.30. Before or at the time of passing of the award, the Claims Tribunals shall examine the claimants to ascertain their financial condition and needs and shall pass an order with regard to their share, mode of disbursement, amount to be kept in fixed deposit and period of fixed deposit according to the financial condition of the claimants. (It has been noticed that, in many cases, the Tribunals have been passing the standard orders of disbursement and fixed deposits without examining the financial condition and needs of the claimants and the poor victims are left at the mercy of either accepting the order or again engaging the counsel to approach the Court for modification).
14.31. At the time of examining the Claimants, the Claims Tribunals shall also ascertain the complete address of the claimants as well as their counsel. In the award, the Claims Tribunals shall specifically direct the Insurance company and/or the owner/driver, as the case may be, to deposit the award amount with the Tribunal and/or the Bank along with the interest upto the date of notice of deposit to the claimants with a copy to their counsel. The names and addresses of the claimants and F.A.O. No.701 of 1996 33 their counsel for issuance of notice of deposit be mentioned in the award.
14.32. If the award amount has been directed to be deposited by the Insurance Company with the bank, copy of the award be sent to the Nodal Officer of the Bank along with the Court stamped copy of the photographs and signatures of the claimants. The photographs and signatures of the claimants be taken at the time of examining them before or at the time of passing the award. Two sets of photographs and signatures should be taken, out of which one set should be sent to the Nodal Officer of the Bank along with the copy of the award and the second set should be retained in the Court record for future reference and/or any irregularity being pointed out. (The forwarding of the Court stamped photographs and the signatures of the claimants would ensure that no attempt is made to defraud the system). If possible, the proof of residence and the details of the Bank Account should also be collected from the claimant at the time of examining them and one stamped set of the same should also be forwarded to the Bank and the second set be retained in the Court record.
14.33. In the award, the Claims Tribunals shall specifically direct the Insurance company and/or the owner/driver, as the case may be, to deposit the award amount with the Tribunal and/or the Bank along with the interest upto the date of notice of deposit to the claimants with a copy to their counsel. The names and addresses of the claimants and their counsel for issuance of notice of deposit be mentioned in the award.
14.34. The Claims Tribunal shall fix a date for reporting compliance in the award itself. The Claims Tribunals shall also direct the Insurance Company and/or driver or owner to place on record the proof of deposit of the award amount, the notice of deposit and the calculation of interest on the date fixed. Upon such proof being filed, the Claims Tribunal shall ensure that the interest upto date of notice of deposit has been deposited by all concerned.
14.35. If the award amount is not deposited within the time provided in the award, the Claims Tribunals shall proceed to recover/execute the award in terms of the directions of this F.A.O. No.701 of 1996 34 Court in the case of New India Assurance Company Ltd. Vs. Kashmiri Lal (supra).
14.36. The Claims Tribunal shall consider keeping the award amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants. For example, if a sum of Rs.5,50,000/- has been awarded to the claimants, Rs.50,000/- may be released immediately and the remaining amount of Rs.5,00,000/- may be kept in 10 fixed deposits of Rs.50,000/- each for a periods of six months, one year, one and a half years, two years and so on till five years or one year, two years, three years and so on till ten years.
14.37. The following conditions may be imposed in respect of the fixed deposit:-
14.37.1. The interest on the aforesaid fixed deposits to be paid monthly by automatic credit of interest in the Savings Account of the claimant.
14.37.2. Withdrawal from the aforesaid account to be permitted to the claimant after due verification and the Bank to issue photo Identity Card to facilitate identity.
14.37.3. No cheque book to be issued to the claimant without the permission of this Court.
14.37.4. The Bank to issue Fixed Deposit Pass Book instead of the FDR to the claimant and the maturity amount of the FDR be automatically credited to the Saving Bank Account of the beneficiary at the maturity of the FDR.
14.37.5. No loan, advance or withdrawal to be allowed on the said fixed deposit receipt without the permission of the Tribunal.
14.37.6. Half yearly statement of account be filed by the Bank in the Tribunal.
14.38. The record of all the awards passed by the Claims Tribunals shall be maintained by the Nazirs in chronological order according to the date of the award in such a manner that it is easy for the Nazir as well as the enquiring litigants/lawyers to ascertain whether the payment of their award has been received or not. The following can be considered as a format:-
a) Date of award
F.A.O. No.701 of 1996 35
b) Case number
c) Title of the case
d) Award amount
e) Date of deposit of the award amount
f) Date of notice of deposit by the depositor.
g) Date of notice of deposit by the Tribunal.
h) Amount of interest upto date of notice of deposit.
i) Whether award amount and complete interest
deposited.
j) Balance outstanding interest.
k) Remarks (Action taken to recover the balance
interest)
14.39. In all pending execution cases, the Claims Tribunals shall follow the directions of this Court in New India Assurance Company Ltd. Vs. Kashmiri Lal (supra). The Claims Tribunals shall direct all the Insurance Companies to provide the name of Banker and their Account number within ten days.
14.40. In respect of pending cheques, the Claims Tribunal shall forthwith issue the notice of deposit to the claimants as well as their counsels.
14.41. In respect of the expired cheques, the Claims Tribunal shall also forthwith issue notice to the Insurance Companies with direction to deposit fresh cheques within 30 days.
14.42. Where the vehicle is not insured, the Claims Tribunal shall ensure that the police has prosecuted the owner/driver of the offending vehicle under Section 196 of the Motor Vehicles Act by calling report from the Police. The Claims Tribunal shall also call for a report from concerned Metropolitan Magistrate to find out whether the owner of the offending vehicle has given security for satisfaction of the award or the vehicle has been sold in terms of Rule 6 of Delhi Motor Accidents Claims Tribunal Rules, 2008. The Claims Tribunal may also direct the owner and driver of the offending vehicle to furnish their affidavit of assets and income in Form-16A, Apprendix-E under Order XXI Rule 41(2) of the Code of Civil F.A.O. No.701 of 1996 36 Procedure and sufficient security under Order XXXVIII Rule 2 of the Code of Civil Procedure.
14.43. Where the Insurance Company has computed the compensation in accordance with law without any delay, has deposited the admitted amount and has contested the case only with respect to the disputed amount or has bonafide defence, the interest should be awarded according to bank rates. However, where the Insurance Company has failed to discharge its obligations or acted capriciously or arbitrarily or negligent exercise or non-exercise of power, which has resulted in harassment and mental suffering to the claimant, the Claims Tribunal may consider awarding higher interest in terms of the judgment of the Apex Court in the case of Ghaziabad Development Authority vs. Balbir Singh, II(2004) CPJ 12 (SC).
14.44. Wherever the lawyer - client agreement is filed before or at the time of final hearing of the case, the cost equivalent to the reasonable fee may be awarded and the Insurance Companies be directed to deposit the said cost by means of a separate cheque in the name of the claimant's counsel to be deposited with the Bank along with the award amount to be released by the Bank directly to the counsel.
14.45. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Sections 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation.
14.46. The Claims Tribunal shall follow the latest precedents rendered on the subject as also principles relating to the nature of inquiry mentioned in paras 9 and 13 above.
14.47. While conducting the inquiry, the Claims Tribunal must be on guard against fanciful or false claims. The victims may deserve sympathy, but the matter has to be approached and decided according to law. Incidence of exaggerated or false claims has to be deftly dealt with. In appropriate cases, the Claims Tribunal should not hesitate to lodge a complaint F.A.O. No.701 of 1996 37 under Section 340 Cr.P.C. Similarly, the Insurance Company which puts forward an evasive or irresponsible defence is liable to be burdened with costs, but where the defence is found to be false, similar action ought to be taken against them. In order to ensure efficiency of procedures and accuracy of the result (determination of the amount), purity in the information received by the Claims Tribunal and veracity of the documents that are placed before the Tribunal, whatever be the source must be brought about.
14.48. The aforesaid observations are without prejudice to the discretion of every Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act.
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17. THE NEED TO BRING ABOUT EFFICIENCIES
17.1. The need to banish delays and bring about efficiencies in the adjudicative process, whether inquisitorial or adversarial, cannot be disputed. To achieve this however it needs more than a mere wish. Fortunately, the statute empowers the Tribunal, but ingrained notions of Civil Court mindset and adherence to tradition has stifled the growth and evolution of practice and procedures, leading thereby to long delays and inefficiencies, or simply injustice. It is this as the avowed goad which should operate as the guiding star to help determine the approach of the Tribunal in every case.
17.2. In our judicial system, the doctrine of precedent plays an important part. The precedent applies both to substantive law as well as procedural law. The High Court, which is the appellate Court, can, in exercise of its appellate jurisdiction, as also its jurisdiction under Article 227 for superintendence of justice administration in the State, lay down a precedent which contains the procedure.
17.3. In other words, the principle of 'as it may think fit' which is with every Claims Tribunal and perforce are also with the appellate Court (which has more power by reason of being a High Court) can always formulate/form procedures as are F.A.O. No.701 of 1996 38 suited, tailored, proportional, efficient, do not breach the rules of Natural Justice, and serve the purpose of speedy justice.
17.4. The scope of these proceedings/this judgment is to visualize and give guidelines as a precedent as to what procedure and practice the Claims Tribunal could adopt as part of summary procedure. It may be made clear that this is only a guide and does not in any way fetter the powers of the Presiding Officer to do what on the facts of a case he thinks fit and right."
In the light of discussions/observations made and the conclusions arrived at in Mayur Arora's case (supra), it is incumbent upon the Tribunal to hold a meaningful enquiry. This Court is of the opinion that the Tribunal had acted too mechanically, in a stereotype fashion and had not discharged its duty to hold an effective enquiry.
Thus, the impugned judgment is set aside and the matter is hereby remanded back to the Tribunal for conducting a fresh enquiry in accordance with provisions of law. The lower Court record be sent to the Tribunal immediately so that a fresh enquiry is conducted by the Tribunal.
With the observations made above, present appeal is disposed of.
[KANWALJIT SINGH AHLUWALIA] JUDGE July 20, 2010 RC/rps