Allahabad High Court
Shivani Shah And 3 Others vs Sanjay Nanda And 2 Others on 18 May, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 2152 of 2021 Appellant :- Shivani Shah And 3 Others Respondent :- Sanjay Nanda And 2 Others Counsel for Appellant :- A.K. Mishra,Sati Shanker Tripathi,Satya Deo Ojha Counsel for Respondent :- Mrityunjay Datta Tiwari Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per: Hon'ble Ajai Tyagi, J.)
1. By way of this appeal, the claimants have challenged the judgment and award dated 24.9.2015 passed by Motor Accident Claims Tribunal/Additional District Judge, Mathura (herein after referred to as ''the Tribunal') in M.A.C.P. No.60 of 2018 (Shivani Shah and others vs. Sanjay Nanda and others) by which the Tribunal has dismissed claim petition of the appellants.
2. Brief facts of the case are that a claim petition is filed by the claimants/appellants before the Tribunal on account of death of Dr.Praful Shah in a road accident. As per the averments made in the petition, on 31.10.2010 at about 11:30 p.m., the deceased was travelling in his Car bearing No.UP-85N/6320 along with his wife and two sons. They were going to Vrindavan from Mathura. When they reached in front of the gate of ATV Factory, a truck bearing No.UP-85Q/9361, which was being driven rashly and negligently by its driver, came and stopped the truck all of sudden by turning towards right side by applying the breaks suddenly. The car of the deceased rammed into the truck from behind. There was no back-light in the truck nor the driver blinked any indicator. In the aforesaid accident Dr.Praful Shah and his elder son Yash Shah died on the spot and his wife and younger son received serious injuries. The first information report of the aforesaid accident was lodged at the Police Station-High Way, which was registered as Case Crime No.829 of 2010 under Sections 279, 338, 304A & 427 IPC. It is also averred in the petition that the deceased Dr.Praful Shah was running a private clinic in Vrindavan and his annual income was Rs.3,10,183/-.
3. Heard Shri S.D.Ojha, learned counsel for the appellants and Shri Mrityunjay Datta Tiwari, learned counsel for the respondents.
4. It is submitted by learned counsel for the appellants that learned Tribunal has rejected the claim petition by holding that there was no eye-witness of the accident and the claimants could not prove that the accident had taken place on account of negligence of truck driver. It is submitted that the witness, who lodged the FIR on the information of the brother of the deceased doctor was produced in evidence, but his testimony was not believed by the Tribunal. It is further submitted that the truck driver has admitted the accident in his written statement, therefore, the learned Tribunal ought to have allowed the claim petition. It is also held by learned Tribunal that at the time of accident, the aforesaid truck was duly insured by the Insurance Company and the truck driver was having valid and effective driving-licence. Learned Tribunal ignored the documentary as well as oral evidence on the basis of wrong appreciation of evidence. It is next submitted that the site-plan was prepared by Investigating Officer during investigation and charge-sheet was submitted against the truck driver, but this fact was not considered by learned Tribunal.
5. Learned counsel for the appellants has submitted that this case is covered by the judgment of this Court in Smt.Meenakshi Srivastava and others vs. Dhiraj Pandey and others, 2022 LawSuit All.247.
6. Learned counsel for the Insurance Company vehemently objected the submissions made by learned counsel for the appellants and argued that truck in question was not involved in the accident. It is submitted that the first information report of accident is lodged by Laxman Gupta on information of the brother of the deceased doctor. He was produced on behalf of claimants/appellants as PW1. He has deposed in his testimony that he had reached on the spot of accident after one hour and the truck in question was not found there. Admittedly, PW1 was not eye-witness of the occurrence. Learned counsel further submitted that as per the FIR, the wife of the deceased was best witness, but she was not called before the Tribunal as witness. Hence, learned Tribunal was justified in rejecting the claim petition on the ground that it was not proved that the accident had taken place by the aforesaid truck or the negligence of its driver.
7. We are fortified in our view by the decision of the Apex Court in Anita Sharma vs. New India Assurance Co.Ltd., 2021 (1) SCC 171, in which it is held that standard of proof in claim petition under Motor Vehicles Act, 1988 cannot be equated with the standard of proof as it is in civil or criminal law. There is not requirement to decide the issue of accident in claim petitioners that it should be proved beyond all reasonable, but the standard of proof is much lesser and it should be decided on the basis of preponderance of probabilities keeping in mind the intent of legislature as this is benevolent piece of legislation.
8. The Division Bench of Madras High Court also held in Reliance General Insurance Co. Ltd. Vs. Subbulakshmi and Others, passed in C.MA. No. 1482 of 2017 [C.M.P. No. 7919 of 2017. (CMA Sr. No. 76893 of 2016)] has referred the case of Puspabai Purshottam Udeshi Vs. Ranjit Ginning and Pressing Co., 1977ACJ 343 (SC), in which it is observed that the normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident 'speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care.
9. Record of this case is not before us, but the copy of written statement, filed by driver of the truck, is in paper-book. As per the averments made in para 10 of the aforesaid written statement, the truck-driver has clearly admitted the accident by stating that he turned his truck towards the side of Delhi from Bharatpur from NH-2 and turned the truck towards Agra from the ATV Factory and due to heavy traffic from the side of Delhi, he had to apply break suddenly. Consequently, the Car No.UP-85N/6320 rammed into the truck from behind.
10. Although, learned counsel for the appellants has made submission that the charge-sheet is filed by the Investigating Officer against the truck-driver, but learned Tribunal has mentioned in impugned judgment that no conclusion of investigation is on record, but in our view, the charge-sheet is not substantive piece of evidence. Moreover, the truck driver has not stepped into the witness-box. Insurance Company did not pray to the Tribunal for summoning the truck-driver as a witness, if the Insurance Company takes the stand of collusion as per the averments made in its written statement because the accident is admitted by the truck-driver in his written statement.
11. On the basis of above discussion, we are of the considered opinion that the alleged accident had taken place. Now the issue remains who was negligent and author of the accident.
12. As the record of Tribunal is not before us, we relegate the matter to learned Tribunal for deciding the issue and nature of negligence on the part of any of the drivers of the vehicles involved in the accident and to decide issue of quantum of compensation after hearing both the parties.
13. The issues of insurance of the truck and driving-licence of its driver have been decided by the Tribunal, hence the Tribunal would not enter these issues again.
14. With these observation, the appeal is remanded back to the Tribunal for passing a fresh award in the light of the observations made in this judgment.
(Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.)
Order Date :- 18.05.2022
Lalit N.Tripathi