Madhya Pradesh High Court
Smt Manisha vs Kalyan Sigh on 27 November, 2024
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
ON THE 27TH NOVEMBER, 2024
MISC. APPEAL NO.3258 OF 2022
SMT. MANISHA AND OTHERS
VS.
KALYAN SINGH AND OTHERS
Appearance :
Smt. Meena Singhal- Advocate for appellants.
Shri B.L. Agarwal with Shri Dhruv Agarwal- Advocates for
respondent/Insurance Company.
_______________________________________________________________
ORDER
This Misc. Appeal has been filed, under Section 173 of Motor Vehicles Act, against the award dated 17-6-2022, passed by 3rd Motor Accident Claims Tribunal, Gwalior in Claim Case No.500467/2014, by which the claim petition filed by the appellants has been dismissed on the ground that they have failed to prove that accident was caused by Dumper No. MP 30-H-0356.
2. It is the case of the claimants that on 29-4-2012 at about 21:30, the deceased Sanju @ Sanjeev, Sunil Jatav and Rahul were coming on a single motorcycle. As soon as they reached in front of Samrat Hotel, Bhind Road, a head on collision took place with offending Dumper bearing registration No. MP 30-H-0356 as a result Sanju @ Sanjeev expired on the spot, whereas Sunil Jatav sustained grievous injuries and succumbed to the injuries and Rahul also sustained injuries.
Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 11/28/2024 7:22:20 AM 23. The claimants are the legal representatives of deceased Sanju @ Sanjeev. The Claims Tribunal by impugned award has dismissed the claim petition on the ground that the appellants have failed to prove that accident took place with Dumper No. MP 30-H-0356.
4. Challenging the award passed by the Tribunal, it is submitted by counsel for the appellants that Rahul (P.W.2) has specifically stated that he had disclosed the number of the dumper to the police in his Dehati Nalishi as well as in his police statement. The documents collected by the police are not relevant for deciding the claim petition. Further, the investigating officer had found that the accident was caused by Dumper No. MP 30-H-0356. FIR is not a substantial piece of evidence. It is true that the claimants had not filed the MLC of Rahul but the same was filed by the police along with the charge sheet. The claims are to be decided on the basis of preponderance of probabilities. If the driver and owner of the dumper were falsely implicated, then they should have challenged the proceedings by filing application under Section 482 of Cr.P.C. but even that was not done. To buttress her submissions, the counsel for the appellants has relied upon the judgment passed by Supreme Court in the case of Safiq Ahmad Vs. ICICI Lombard General Insurance Co. Ltd. and others reported in 2021 SCC Online SC 1259, Bimla Devi Vs. Himachal Road Transport Corporation and others reported in 2009 ACJ 1725, Kusum Lata and others Vs. Satbir and others reported in 2011 ACJ 926 passed by this Court in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Pooja Bhargav and others decided on 13-5-2019 in MA No. 1127 of 2015, National Insurance Company Ltd Vs. Smt. Himanshi and others decided on 17-1-2020 in M.A. No. 1069 of 2016, National Insurance Company Ltd. Vs. Rammilan Yadav and others decided on 28-8-2019 in M.A. No. 3496 of 2018, National Insurance Company Ltd. Vs. Smt. Radha Devi and others reported in 2018 (3) TAC 846 (MP), New India Assurance Co. Ltd. Vs. Smt. Rekhabai reported in MACD 2013(3) Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 11/28/2024 7:22:20 AM 3 (MP) 1417, Iffco-Tokio General Ins. Co. Ltd. Vs. Diwakar Singh and others reported in 2023 ACJ 2408, Divisional Manager, New India Assurance Co. Ltd. Vs. Smt. Bhanu Singh reported in 2023(@) TAC 319 (MP), Magma HDI General Insurance Co. Vs. Bhupendra Sharma and other decided on 1-4- 2022 in M.A. NO. 93 of 2017, Shriram General Insurance Co. Ltd. Vs. Smt. KasturiBaiChauhan decided on 19-11-2018 in MA No. 971 of 2014, Oriental Insurance Co. Ltd. Vs. Smt. Mina and others decided on 4-5-2019 in M.A. No. 68 of 2015, and by Punjab and Haryana High Court in the case of Narpal and another Vs. Kanta Devi and others reported in 1993 ACJ 175.
5. Per contra, it is submitted by counsel for Insurance Company that the accident took place on 29-4-2012 at 21:30. Dehati Nalishi was lodged by Rahul in which the Dumper number was not mentioned. The statement of Rahul under Section 161 of Cr.P.C. was recorded on 2-6-2012, and even in said statement, Rahul did not disclose the number of dumper. On 6-6-2012, the statements of Jitendra and Siyaram were recorded by police and for the first time, the Dumper Number was disclosed. The dumper was seized on 7-6-2012 and the driver was also arrested. Thus, it is submitted that the dumper in question was planted after more than 1 month and therefore, the Tribunal has rightly dismissed the claim petition.
6. In reply, it is submitted by counsel for appellants that the Trial Court has convicted the driver and thus, it is clear that even the Criminal Court had found that the dumper in question was involved in accident.
7. Heard the learned counsel for the parties.
8. The appellants have not filed the copy of the judgment passed by JMFC in Criminal Court. However, even if the statement made by counsel for appellants with regard to conviction of driver is accepted, still it would not have any bearing Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 11/28/2024 7:22:20 AM 4 on this case. The question for consideration is that whether the findings recorded by the Criminal Court are binding on the Civil Court or not?
9. The question is no more res integra.
10. The Supreme Court in the case of Kishan Singh v. Gurpal Singh, reported in (2010) 8 SCC 775 has held as under :
11. In Karam Chand Ganga Prasad v. Union of India this Court, while dealing with the same issue, held as under : (SCC p. 695, para 4) "4. ... It is well-established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true."
12. The said judgment was delivered by a three-Judge Bench of this Court without taking note of the Constitution Bench judgment in M.S. Sheriff v. State of Madras on the same issue, wherein this Court has held as under : (AIR p. 399, paras 15-16) "15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just."
13. In V.M. Shah v. State of Maharashtra this Court has held as under :
(SCC p. 770, para 11) Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 11/28/2024 7:22:20 AM 5 "11. As seen that the civil court after full-dressed trial recorded the finding that the appellant had not come into possession through the Company but had independent tenancy rights from the principal landlord and, therefore, the decree for eviction was negatived. Until that finding is duly considered by the appellate court after weighing the evidence afresh and if it so warranted reversed, the findings bind the parties. The findings, recorded by the criminal court, stand superseded by the findings recorded by the civil court. Thereby, the findings of the civil court get precedence over the findings recorded by the trial court, in particular, in summary trial for offences like Section 630. The mere pendency of the appeal does not have the effect of suspending the operation of the decree of the trial court and neither the finding of the civil court gets disturbed nor the decree becomes inoperative."
14. The correctness of the aforesaid judgment in V.M. Shah was doubted by this Court and the case was referred to a larger Bench in K.G. Premshanker v. Inspector of Police. In the said case, the judgment in V.M. Shah was not approved. While deciding the case, this Court placed reliance upon the judgment of the Privy Council in King Emperor v. KhwajaNazir Ahmad wherein it has been held as under :
(IA p. 212) "... It is conceded that the findings in a civil proceeding are not binding in a subsequent prosecution founded [upon] the same or similar allegations. Moreover, the police investigation was stopped, and it cannot be said with certainty that no more information could be obtained. But even if it were not, it is the duty of a criminal court when a prosecution for a crime takes place before it to form its own view and not to reach its conclusion by reference to any previous decision which is not binding [upon] it."
(emphasis added) *
15 . In P. Swaroopa Rani v. M. HariNarayana this Court has held as under : (SCC pp. 769-71, paras 11, 13 & 18) "11. It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the facts and circumstances of each case. ...
***
13. Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute. ...
*** Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 11/28/2024 7:22:20 AM 6
18. It goes without saying that the respondent shall be at liberty to take recourse to such a remedy which is available to him in law. We have interfered with the impugned order only because in law simultaneous proceedings of a civil and a criminal case are permissible." ** 16 . In Iqbal Singh Marwah v. MeenakshiMarwah this Court held as under : (SCC pp. 389-90, para 32) "32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings is entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."
17. In Syed AskariHadi Ali Augustine Imam v. State (Delhi Admn.) this Court considered all the earlier judgments on the issue and held that while deciding the case in Karam Chand, this Court failed to take note of the Constitution Bench judgment in M.S. Sheriff and, therefore, it remains per incuriam and does not lay down the correct law. A similar view has been reiterated by this Court in Vishnu Dutt Sharma v. DayaSapra, wherein it has been held by this Court that the decision in Karam Chand stood overruled in K.G. Premshanker.
18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.
11. Thus, it is held that even if the driver has been convicted by the Trial Court, still the claimants are required to prove in the present case that the dumper in question was involved in accident.
Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 11/28/2024 7:22:20 AM 712. The claimants have examined Rahul (P.W.2) as an eye-witness and the solitary witness to claim that Dumper No. MP 30-H-0356 was involved in the accident.
13. It is not out of place to mention here that it was Rahul who had lodged the Dehati Nalishi on the basis of which FIR was registered. Further Rahul did not disclose the number of Dumper in his Dehati Nalishi. He also did not disclose the number of the dumper in his police statement, Ex. D.1 which was recorded on 2-6-2012. However, when Rahul was cross-examined with regard to omission in his previous statements, then it was stated by him, that he had disclosed the number of Dumper. The Counsel for the appellant is right in submitting that claim cases are to be decided on the basis of evidence led in the claim petition and not on the basis documents of criminal cases. However, in the light of Section 145 of Evidence Act, a witness can be confronted with his previous statement. Thus, this Court can consider the omissions and contradictions in the evidence of the witnesses.
14. According to Rahul Jatav (P.W.2), all the three persons, namely Sanju @ Sanjeev, Sunil Jatav and this witness started from Thatipur Godown Colony at about 5 P.M. and Sanju @ Sanjeev was driving the motor cycle at the speed of 25-30 Km per hour and the distance between the place from where they had started and the place of accident was 65 Kms. It is further stated by him, that they did not stop anywhere. Even if Sanju @ Sanjeev was driving the motor cycle at a speed of 25-30 Km per hour, still they would not have taken 4:30 hours to cover a distance of 65 Kms. By driving at the speed of 25-30 Km per hour, they would have covered the distance of 65 Kms within 2 hours or so. Thus, it is clear that Rahul Jatav (P.W.2) has not narrated the truth with regard to speed at which motor cycle was being driven by deceased Sanju @ Sanjeev.
15. Furthermore, this witness has disowned his police statement, Ex. D.1 and also stated that he had disclosed the number of the dumper to the police. It was Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 11/28/2024 7:22:20 AM 8 further claimed that he remained admitted in the hospital at Bhind for 2 days and he had also sustained injuries. However, he admitted that he has not filed any document to show that he had sustained any injury or he remained hospitalized for 2 days. Thus, Rahul Jatav (P.W.2) tried to take a defence that since, he too had sustained injuries, therefore, he was in an uncomfortable condition and could not notice that dumper number was not mentioned in the Dehati Nalishi. Further in Dehati Nalishi Ex. D.2, Rahul Jatav (P.W.2) has specifically stated that since it was dark therefore, he could not notice the number of Dumper. The accident took place at 21:30 and it is a case of head on collision. Therefore, because of head lights of the dumper it was also not possible for this witness to notice the registration number of dumper. However, neither Rahul Jatav (P.W.2) has filed any document to show that he had had remained hospitalized for 2 days, but he also did not file any claim petition for the injuries sustained by him in the accident. However, the Insurance Company has filed the copy of investigation report as Ex. D.1 along with it has also filed a copy of the MLC of Rahul Jatav (P.W.2). As per the MLC of Rahul Jatav (P.W.2) he had sustained 4 abrasions on right side of forehead, right cheek, left side forehead, and left cheek. All the injuries were simple in nature. Thus, it is clear that an attempt made by Rahul Jatav (P.W.2) to claim that since he had sustained grievous injuries and had remained hospitalized for 2 days is false.
16. Further, the police statement of Rahul Jatav was recorded on 2-6-2012 and in that statement also, Rahul did not disclose the number of dumper but on the contrary it was specifically stated by him, that because of dark, he could not see the number of the dumper. However, just four days thereafter, the police recorded the statements of Jitendra and Siyaram and the number of the dumper was disclosed for first time and on the next day, not only the driver was arrested but the dumper was also seized. From the seizure memo of the dumper, which has been filed along with investigation report, Ex. D.1, it is clear that no damage was found on the vehicle. When there was a head on collision, then some Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 11/28/2024 7:22:20 AM 9 accident marks should have been found on the dumper but even those were not there. Therefore, it is clear that dumper was falsely planted after more than 1 month of accident.
17. Although the Counsel for the appellants is right in holding that claim cases are decided on the basis of preponderance of probabilities, but this Court cannot ignore the provisions of Section 145 of Evidence Act, although strict proof of Evidence is not applicable to the Claim Cases.
18. Furthermore, when the police had cited Jitendra and Siyaram as two eye- witnesses, and the appellants had also filed an affidavit of Siyaram but later on could not produce him for cross-examination, therefore, the affidavit of Siyaram filed under Order 18 Rule 4 CPC cannot be taken note of. No independent witness to the incident was examined by the appellants.
19. It was also contended by the counsel for the appellants that since the police after investigating the matter had come to conclusion that the driver of the dumper No. MP 30-H-0356 had committed the accident, therefore, the evidence of Rahul Jatav should not be discarded. The aforesaid submission made by Counsel for Appellants cannot be accepted and is hereby rejected as misconceived. The opinion formed by investigating officer is merely an opinion and the same cannot be taken as conclusive proof. Furthermore, the counsel for the appellants is right in submitting that the documents of criminal case cannot be the basis for deciding Claim Case.
20. It is next contended by Counsel for the appellants that since the owner and driver of the offending dumper did not file application under Section 482 of Cr.P.C. for quashment of their involvement is concerned, the said principle cannot be applied universally. In the present case, the driver and owner of the dumper remained ex parte. From the facts of the case, it is clear that dumper was deliberately planted and when it was with the consent of the owner and driver of Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 11/28/2024 7:22:20 AM 10 the dumper then there is no question of challenging the same under Section 482 of Cr.P.C. by the owner and driver of the dumper.
21. So far as the contention of the counsel for appellants that FIR is not the substantive piece of evidence is concerned, it is well established principle of law that FIR is not a substantive piece of evidence. However, the FIR can always be used for omission and contradiction purposes. It is not a case where the claimant is trying to rely on the FIR, but Rahul Jatav (P.W.2) is trying to partially disown the FIR, Ex. P.1, therefore, the same can be used for omission and contradiction purposes.
22. Considering the totality of the facts and circumstances of the case, the evidence of Rahul Jatav (P.W.2) so far as it relates to the fact that accident was caused by dumper No. MP 30-H-0356 is not reliable and accordingly, it was rightly rejected by the Tribunal.
23. No other argument is advanced by the Counsel for the appellants.
24. As the appellants have failed to prove that accident was caused by Dumper No. MP 30-H-0356, therefore, the Tribunal rightly rejected the claim of appellants.
25. Ex consequenti, award dated 17-6-2022, passed by 3rd Motor Accident Claims Tribunal, Gwalior in Claim Case No. 500467/2014 is hereby affirmed.
26. The appeal fails and is hereby dismissed.
(G.S. Ahluwalia) Judge pd Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 11/28/2024 7:22:20 AM