Chattisgarh High Court
Smt. M. Vijay Laxmi vs Laxmi Prasad Yadav on 26 August, 2016
Author: Pritinker Diwaker
Bench: Pritinker Diwaker
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MAC No. 1201 of 2015
Judgment reserved on: 29.07.2016
Judgment delivered on: 26.08.2016
• Smt. M. Vijay Laxmi W/o Sh. M. Laxman Rao, Aged About 50 Years
• M. Laxman Rao S/o Late M. Appal Raju, Aged About 53 Years
All R/o Railway Colony, Kargi Road, Kota, District Bilaspur
(Chhattisgarh)
---- Appellants
Claimants
Versus
• Laxmi Prasad Yadav S/o Vishnu Ram Yadav, R/o Village Khaira, P. S.
Masturi, District Bilaspur (Chhattisgarh) Pin Code - 495001...........
(Driver Of Offending Vehicle, Bolero Jeep Bearing Registration No. C
G 04 H B - 3304)
• Rajesh Kumar Bor S/o Narayan Singh Bor, R/o Devendra Nagar,
Sector - 2, Raipur, Tahsil & District Raipur (Chhattisgarh) Pin Code -
495002..........(Owner Of Offending Vehicle, Bolero Jeep Bearing
Resistration No. C G 04 H B - 3304)
• The Oriental Insurance Company Limited Through Divisional
Manager, Divisional Office, Opposite Rajeev Plaza, Bus Stand, Tahsil
& District Bilaspur (Chhattisgarh) Pin Code 495001.........(Insurer Of
Offending Vehicle, Bolero Jeep Bearing Registration No. C G 04 H B
3304)
---- Respondent
For Appellants : Shri S.S. Rajput, Advocate under the authority of Shri Sushobhit Singh, Advocate.
For Respondent No.1 : Shri Amit Kumar, Advocate. For Respondent No.2 : None.
For Respondent No.3 : Shri H.P. Agrawal, Advocate.
Hon'ble Shri Justice Pritinker Diwaker C.A.V. Judgment 26/08/2016 With the consent of the parties, the matter is heard finally.
02. Challenge in this appeal filed under Section 173 of the Motor Vehicles Act, 1988 is to the award dated 4.9.2015 passed by the Motor Accident Claims Tribuna, Bilaspur (CG) (in short "Tribunal") in MACT No. 50/2015 dismissing the case of the claimants for compensation of Rs.20.50 lacs.
03. Brief facts of the case are that on 25.2.2012 one M. Manoj @ Nanni Rao, son of the appellants/claimants, met with an accident when his motorcycle collided with four wheeler - Bolero bearing registration No. CG-04-HB-3304 (hereinafter referred to as "offending vehicle"). An application was filed by the claimants claiming compensation to the tune of Rs.20.50 lacs under various heads, inter alia, pleading that the accident occurred on account of rash and negligent driving of the offending vehicle by respondent No.1. It was pleaded that as respondent No.2 was owner of the offending vehicle and it was insured with respondent No.3, the respondents are jointly and severely liable for payment of compensation to the claimants.
Respondents No. 1 & 2 i.e. driver and owner of the offending vehicle chose to remain ex-parte and it is the insurance company/respondent No.3 alone who contested the claim case. The insurance company took a plea of contributory negligence and did not specifically deny the occurrence of accident. In support of their contention, claimant/appellant No.2 examined himself as witness whereas on behalf of insurance company one Surendra Kumar Agrawal, Administrative Officer, was examined who deposed about violation of terms and conditions of insurance policy by owner of the offending vehicle saying that the vehicle was registered as a private vehicle but was being used as commercial vehicle - Ambulance. However, no evidence whatsoever has been adduced by the insurance company on the point of contributory negligence.
04. By the impugned award, the Tribunal dismissed the entire claim of the claimants mainly on the point of non-examination of eyewitness to the accident to prove the fact that it was the offending vehicle - Bolero which was being driven rashly and negligently and responsible for causing the accident.
05. Counsel for the appellants submits as under:
• that while considering the claim case of the claimants, the Tribunal ought to have taken into account the fact that proceedings of the Tribunal are like summary proceedings and normally, strict rule of evidence should not be insisted upon in claim cases, • in the present case after merg enquiry, FIR was registered against the driver of the offending vehicle clearly mentioning therein the number of the offending vehicle and once the said FIR was filed in the claim case and duly exhibited, no further evidence is required to be adduced by the claimants showing that the offending vehicle was being driven rashly and negligently unless the contrary is proved by any of the non- applicants.
• if the ground taken by the Tribunal while dismissing the claim case is allowed to stand, in most of the cases the claim petition would be dismissed because it is very difficult for the claimant to produce eyewitness of the accident. Likewise, in most of the cases, claimants are dependent on the deceased and normally they are not present at the place of occurrence. As such, it is very difficult for the claimant to contact the eyewitness and produce him in the Court.
• indisputably, after registration of criminal case, driver of the offending vehicle was arrested and is facing trial for offence under Section 304A of IPC, which is pending consideration.
• if the offending vehicle was not involved in the accident, owner or driver of the vehicle must have approached the higher authorities or higher forum praying that their vehicle has wrongly been shown to be involved in the accident whereas nothing like that has been done in the present case.
• even in the criminal case, the driver can be convicted solely on the basis of circumstantial evidence like spot map and other attending circumstances and thus, asking the claimants to examine eyewitness to the accident would not only be contrary to law but would also be too harsh.
• that the claimants are required to prove their case on the touchstone of preponderance of probabilities and applying the principles of res ipsa loquitur, it can easily be ascertained that the deceased died in an accident involving the offending vehicle which was driven by rashly and negligently.
• when the driver and owner of the offending vehicle have chosen not to appear in the case, the insurance company is not specifically disputing the accident and is rather taking a plea of contributory negligence, in these circumstances, the Tribunal was under an obligation to decide the claim by awarding adequate compensation to the claimants.
• had it been a case of negligence on the part of the deceased, the insurance company ought to have examined some witness to this effect but they have examined only one witness and that too, on the point of breach of policy conditions.
• once no evidence has been led by the insurance company regarding contributory negligence, the claim case filed by the claimants ought to have been allowed by the Tribunal.
06. On the other hand, supporting the impugned award it has been argued on behalf of the insurance company as under:
• that the award impugned is strictly in accordance with law and there is no infirmity in the same.
• unless the point of negligence on the part of the driver is proved by the claimants, no award can be passed in their favour, especially liability of the insurance company cannot be fastened. • that the insurance company has not admitted the fact that the vehicle in question was involved in the accident in any manner.
• that even if the insurance company has not examined any witness regarding contributory negligence, they are fully justified in taking the said plea.
• that the insurance company has denied the occurrence of the accident from the vehicle in question.
• that neither it has been properly pleaded by the claimants that the vehicle in question was being driven rashly and negligently by its driver nor any such evidence has been adduced and thus, in absence of the same, the Tribunal was justified in dismissing the entire claim of the claimants.
• that the claimants have even not bothered to plead as to from which direction the deceased was coming and from which direction the offending vehicle was coming and as to how the accident occurred.
In support of his contentions, he has placed reliance on the judgments in the matters of Surendra Kumar Arora and another Vs. Dr. Manoj Bisla and others, (2012) 4 SCC 552, and Lachoo Ram and others Vs. Himachal Road Transport Corporation, (2014) 13 SCC 254.
07. Counsel appearing for respondent No.1 though admitted the accident but denied that it was on account of rashness and negligence on the part of respondent No.1. He submitted that the accident occurred due to negligence of the deceased himself.
08. Heard learned counsel for the parties and perused the material available on record.
09. Before adverting to the facts of the case and analyzing the same, it would be apposite to discuss certain judgments passed by the Hon'ble Supreme Court and other High Courts relating to the issue involved in the present case.
10. In the matters of Bimla Devi and others Vs. Himachal Road Transport Corporation, (2009) 13 SCC 530, it has been observed by the Apex Court as under:
4. Respondents, however, denied and disputed occurrence of the said accident. According to them, the deceased died the previous evening and finding the dead body of a person wrapped in a blanket lying at some distance from the bus; they informed the police personnel, whereafter the driver was falsely implicated.
5. The factum of accident, thus, being denied and disputed; one of the issues framed by learned Tribunal on the claim application filed by the appellants herein for grant of compensation in terms of Section 166 of the Motor Vehicles Act, 1988 was:
"Whether Sh. Jawala Ram died on 11.2.1997 near Dharampur, due to rash and negligent of Bus No.HP- 14-3596 by respondent No.2 and negligent conduct of respondent No.3 as alleged?"
7. The driver and conductor of the bus admitted their presence at the scene of occurrence. Vijay Kumar (RW1) alleged that he had seen the dead body wrapped in a blanket behind the bus when he was still to start the bus. The Tribunal did not find his statement to be reliable. Bhawani Dutt (RW2) did not support the version of the respondent as he stated that the driver and conductor of the bus had gone to the police station and the people gathered there stated that someone had been lying dead. He, according to the Tribunal, also could not deny positively that the accident had not taken place because of the use of the bus in question.
It is difficult to believe that the Police Officers would fabricate a case against the respondents. The learned Tribunal opined:
"Therefore, keeping in view the statement of PW, Dharam Pal, the death of Jawala Ram because of injuries, the presence of the Bus of the respondents and place and time of the occurrence and the other circumstances of the case, I am convinced that the death of Jawala Ram took place after being hit by the Bus when it was being reversed in backward directions. Once, it is so held, the respondents, driver and conductor shall have to be held negligent in reversing the bus in backward directions without blowing horn or whistle or giving indication to the persons standing there. Had the driver and conductor of the bus taken care to blow horn or to forewarn the persons standing there before reversing the bus, Jawala Ram, who was stated to be standing behind the bus would not have been crushed. Consequently, it is held that Jawala Ram had died because of the injuries sustained by him in the course of Bus accident because of rashness and negligence of the respondents, driver and conductor of the Bus."
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
11. In the case of Parmeshwari Vs. Amir Chand and others, (2011) 11 SCC 635, it has been held as under:
"4. The material facts are that on 22.01.2003 at about 12.00 noon the appellant herein, the claimant before the Tribunal, respondent No.1 before the High Court, was going from Baganwala to Tosham on a Motor Cycle (No.HR 16C-8379), driven by Balwan with the claimant on the pillion seat. When the Motor Cycle was half a kilometer away from Baganwala, Suresh
- respondent No.2 herein, came from the other direction in another scooter (No.HR 20-5793) from the wrong side and hit the right leg of the appellant as a result of which she fell down and her right leg was fractured and she received multiple injuries.
6. The Tribunal in its judgment considered the evidence of PW.1- Umed Singh as also the evidence of Dr. Parveen Chawla-PW.2, Dr. R.S. Dalal as PW.5 apart from examining the appellant-PW.4 and also one Satbir Singh as PW.3. It has come on evidence of PW.2-Dr. Parveen Chawla that on 22.1.2003 the appellant was admitted with diagnosis of fracture of tibia. Plating and bone grafting was done by P.W.2-Dr. Parveen Chawla and the appellant was discharged on 6.2.2003. The discharge card was also proved. PW.3-Satbir Singh deposed that the appellant moved a complaint in the office of SSP Hisar on 11.3.2003 and the same was sent in original on 2.4.2003 by SSP Hisar to SSP Hanumangarh.
13. The other so-called reason in the High Court's order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. The following observations of this Court in Bimla Devi and others vs. Himachal Road Transport Corporation and others [(2009) 13 SCC 530] are very pertinent.
"In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
12. In the case of Kaushnuma Begum Vs. New India Assurance Company Ltd., (2001) 2 SCC 9, the Apex Court observed as under:
"It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action."
13. In the matters of Pushpabai Parshottam Udeshi Vs. Ranjit Ginning and Pressing Co. Pvt. Ltd., (1977) 2 SCC 745, the Supreme Court observed as under:
"2. The Motor Accidents Claims Tribunal, Jabalpur, found that the accident of the motor vehicle was as a result of negligent driving of the vehicle by the Manager, Madhavjibhai Mathuradas Ved, the driver of the vehicle. It also found that the first respondent, the owner of the company, is liable to pay compensation to the claimants on account of the negligence of their employee Madhavjibhai which caused the death of Purshottam Tulsidas Udeshi. Regarding the compensation payable the Tribunal fixed Rs. 31,209.15 as general damages in addition to Rs. 2,000 as special damages for funeral and post-funeral expenses. The owner, first opponent, preferred an appeal to the High Court impleading the claimants and the insurance company as respondents against the award passed by the. Claims Tribunal. The High Court did not decide the question as to whether the accident was due to the rash and negligent driving or the quantum of compensation to which the claimants were entitled to as it allowed the appeal by the owner on the ground that the owner cannot be held vicariously liable for the act of Madhavjibhai in taking Purshottam as a passenger as the said act was neither in the course of his employment nor under any authority whatsoever and that there was no evidence that the owners of the vehicle were aware that Purshottam was being taken in the car as a passenger by their Manager, Madhavjibhai. Holding that so far as the owners are concerned Purshottam was no better than a trespasser the High Court held that the owners were not vicariously liable. On an application by the claimants the High Court granted a certificate and thus this appeal has come before this Court.
5. The High Court has not gone into the question as to whether the car was being driven rashly and negligently by the owner's employee as it held that the act was not in the course of his employment. We feel that the question as to whether the car was being driven rashly and negligently would have to be decided on the facts of the case first for, if the claimants fail to establish rash' and negligent act no other question would arise. We would therefore proceed to deal with this question first. The claimants did not lead any direct evidence as to how the accident occurred. No eye-witness was examined. But P.W. 1, the younger brother of the deceased Purshottam Udeshi, who went to the spot soon after the accident was examined. He stated that he went with one of his relatives and an employee of his brother's employer and saw that the car had dashed against a tree while proceeding from Nagpur to Pandurna. The tree was on the right hand side of the road, four feet away from the right hand side of the main metalled road. The vehicle will have to proceed on the left hand side of the road. The road was 15 feet wide and was a straight metalled road. On either side of the road there were fields. The fields were of lower level. The tree against which the car dashed was uprooted about 9 to 10 inches from the ground. The car dashed so heavily that it was broken in the front side. A photograph taken at that time was also filed. According to the witness the vehicle struck so heavily that the machine of the car from its original position went back about a foot. The steering wheel and the engine of the car receded back on driver's side and by the said impact the occupants died and front seat also moved back. The witness was not cross-examined on what he saw about the state of the car and the tree. It was not suggested to him that the car was not driven in a rash and negligent manner. In fact there is no cross- examination on the aspect of rash and negligent driving. The Claims Tribunal on this evidence found that "it was admittedly a mishap on the right side of the road wherein the vehicle had dashed against a tree beyond the pavement so violently as not only to damage the vehicle badly but also entailing death of its three occupants, maxim 'res ipsa loquitur' applies (See Ellor v. Selfridge [1930], 46 T.L.R. 236)". The Tribunal proceeded to discuss the evidence of P.W. 1 and found on the evidence that it cannot help concluding that the dashing of the car against the tree was most violent and that it was for the respondents to establish that it was a case of inevitable accident. They have led no evidence. It may at once be stated that though the opposite parties had pleaded that this is a case of inevitable accident they have not led any evidence to establish their plea. The burden rests on the opposite party to prove the inevitable accident. To succeed in such a defence the opposite party will have to establish that the cause of the accident could not have been avoided by exercise of ordinary care and caution. "To establish a defence of inevitable accident the defendant must either show what caused the accident and that the result was inevitable, or he must show all possible causes, one or more of which produced the effect, and with regard to each of such possible causes he must show that the result could not have been avoided." (Halsbury's Laws of England, Third Ed., Vol. 28, p. 81). No such attempt was made and before us the plea of inevitable accident was not raised. We have therefore to consider whether the claimants have made out a case of rash and negligent driving. As found by the Tribunal there is no eye-witness and therefore the question is whether from the facts established the case of rash and negligent act could be inferred. The Tribunal has applied the doctrine of "res ipsa loquitur". It has to be considered whether under the circumstances the Tribunal was justified in applying the doctrine.
6. 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 that his own negligence. Salmond on the Law of Torts (15th Ed.) at p. 306 states: "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused." In Halsbury's Laws of England, 3rd Ed., Vol. 28, at p. 77, the position is stated thus: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is, that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence "tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous." 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."
14. In the case of NKV Bros (P) Ltd. Vs. M Karumai Ammal, (1980) 3 SCC 457, it was observed as under:
"3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their 'neighbour'."
15. In Bala and others Vs. Motichand Gupta and others, 2006 ACC 337, it has been held by the High Court as under:
"6. Plain reading of Section 158(6) and Section 166(4) of the Act shows that even the charge-sheet submitted by the police officer to the Tribunal is to be treated as an application for compensation by the Claims Tribunal. Once the charge-sheet is forwarded to the Claims Tribunal, the Tribunal is immediately made aware that the accident has been caused by the offending vehicle and the Tribunal in that case is not required to go into any further technicality to direct the claimants to still prove that the offending vehicle was involved in the accident unless, of course, the party opposing the petition denies the involvement of such vehicle. In the present case, neither the owner nor the driver denied the involvement of the offending vehicle in the accident. In that view of the matter, immediately after the report was filed, either by the police officer under Section 158(6) of the Act or was produced in Court by the claimants as certified copy Exh. P-1, in my opinion, Claims Tribunal ought not have discarded the same. As the Tribunal has itself observed that strict rules of evidence are not observed in proceedings before the Tribunal, the Tribunal should not have taken a technical view that the charge-sheet and other documents certified copies of which were produced before it, should have still been proved by a witness. A perusal of the charge-sheet clearly shows that it was the offending vehicle, which was involved in the accident and the driver of that vehicle had been charged to face trial for an offence punishable under Sections 279/304-A of the Indian Penal Code. In this view of the matter, the Tribunal has clearly misdirected itself in observing that the documents Exhs. P-l to P-19 could not be treated as substantive evidence and could not be read in support of the case of the appellant."
16. In the case of MP State Road Transport Corporation Vs. Vaijanti, 1995 ACJ 560, it has been observed thus:
"13 Besides, the owner and the insurance company were having opportunity to produce the driver to establish that there was no rash and negligent act of the driver of the truck, more particularly when the issue No. 1(b) was raised by the Tribunal. No reason has been assigned by the owner and the insurance Company for non-examination of the truck driver. In accident cases, it is absolutely necessary to have the first hand report from the driver. It may be that the driver does not always speak the truth, but the driver's version is the one which is to be given the best consideration. He is the person who knows about the occurrence. He also knows as to what actually happened. Therefore, the driver having not been examined, necessarily, an adverse inference arises against him. See, the decisions of this Court in R.H. Kumariji v. N.I.A. Co. Ltd. (1974) MPLJ 462) and in K.K. Jain v. Masroor Anwar (1990 ACJ 299): (AIR 1990 Madh Pra 87). Therefore, in the circumstances, the finding recorded on issue Nos. 1(a) and (b) that both the drivers were equally responsible for the accident, is based on appreciation of evidence adduced by the parties. Hence, no interference is warranted in appeal."
17. Further, in the matters of Shri Ram General Insurance Company Vs. Santosh and others (FAO No.10077 of 2014) decided on 15th December, 2014, Punjab & Haryana High Court held as under:
"3. Learned Tribunal framed issues, took evidence and on appreciation of the evidence adduced on record by the parties came to the conclusion that the accident took place due to rash and negligent driving of the vehicle bearing registration No. HR 46 2344 being driven by Rajesh Kumar, respondent No. 5 and while dismissing the claim application qua respondent No.4, awarded compensation in favour of the claimants (respondents No. 1 to 3) holding the appellant and respondent No. 5, Rajesh Kumar, driver and respondent No. 6, Roshan Lal, owner of the offending vehicle, jointly and severally liable to pay the compensation.
9. While deciding issue No. 1 pertaining to factum and manner of accident, learned Tribunal has relied upon evidence of PW3, Budh Ram an eye witness of the occurrence, PW4, Satish Kumar, who reported the matter to the police after he was informed about the factum and manner of occurrence by PW3, Budh Ram, report (Exhibit P2) submitted by the investigating agency under Section 173 of the Criminal Procedure Code, 1973, charge sheet, Exhibit P1, whereby the learned Criminal Court framed charge against respondent No.5 after having found a prima facie case against him, statement (Exhibit P4) made by PW4 Satish Kumar under Section 161 of the Criminal Procedure Code, 1973, Site Plan of the place of occurrence, Exhibit P5, Memorandum of Recovery, Exhibit P7, whereby the offending vehicle was taken in possession by the investigating agency and Post Mortem Report, Exhibit P6, with regard to cause of death of the deceased. Not only PW3, Budh Ram has given an eye-
witness account of the accident but from the charge sheet, Exhibit P1, it is clearly made out the respondent No. 5, driver of the offending vehicle, is facing criminal proceedings arising out of the occurrence that claimed life of the deceased. In case, respondent Rajesh Kumar was not negligent in driving the offending vehicle at the time of accident, resulting into the death of Kuldeep VIRENDRA SINGH ADHIKARI 2014.12.16 13:36 I attest to the accuracy and authenticity of this document High Court Chandigarh Singh, he could make a statement before the police officials to this effect. In case, the police officials of the concerned Police Station were not ready to hear him, he could certainly approach the higher police authorities to say that he had been falsely implicated in the criminal case and/or the accident did not take place in the manner as alleged in the First Information Report. He, however, is not shown to have done so. His long silence in itself is sufficient to presume that at the relevant time he was negligent in driving the offending vehicle as a result whereof the accident leading to the death of Kuldeep Singh took place. In this regard a reference may also be made to Girdhari Lal V. Radhey Shyam, 1993 (2) PLR 109, Sudama Devi & Ors. Versus Kewal Ram & Ors., CXLIX-(2008-1) The PLR 444 and Ram Sarup & Ors.
Versus Om Parkash & Ors., CXLIX-(2008-1) The PLR
461."
18. In the case of Rajasthan State Road Transportation Vs. Nand Kishore and others, 2002 ACJ 1564, it has been observed thus:
"4. It is contended by the learned counsel for the appellant that Tribunal fell in error in holding that the driver of the offending bus was negligent in causing accident. He contended that no eyewitness to the occurrence has been produced by the claimants and, therefore, according to him claimants failed to prove issue of negligence.
6. It has been observed in Zeenath Tej v. Prince of Wales Medical College Patna AIR 1971 Patna 43, as follows (para
7):
"There is a presumption that every person whether in his private or official character does his duty and unless the contrary is proved, it is presumed that all things are rightly and regularly done. This presumption applies with greater force to official acts."
10. Thus, strict rules of Evidence Act are not to be insisted on by the Tribunal on being limited jurisdiction. A similar view has also been taken by the Kerala High Court in Philippose Cherian v. T.A. Edward Lobo 1991 ACJ 634 (Kerala).
11. More so, no objection was raised at the time of marking exhibit of those documents by the respondents and as such reliance on these documents can safely be placed. Document Exh. 9 clearly shows that the offending bus was plying off the road that too by 5-7 ft. away from the metalled portion of the road and hit the deceased. Not only this, offending bus went in kachha and covered the distance of 61 ft. after having hit the deceased. This itself goes to show that the respondent bus driver was grossly negligent in driving the bus. In the facts and circumstances of this case, maxim res ipsa loquitur is fully attracted which means accident speaks for itself or accident tells its own story. There are cases in which accident speaks for itself, therefore, in such cases it is sufficient for the claimants to prove the accident and nothing more.
12. Maxim res ipsa loquitur-whenever it is so improbable with such accident whenever have happened. In the instant case, there can be no dispute that offending bus would not have gone to the kachhi patri which is about 5-6 ft. away from the main road and could not have travelled for such a long distance off the road and hit the deceased without there being any negligence on the part of the driver."
19. Before applying the above principles of law as laid down by the Apex Court and other High Courts, it would be further necessary to refer to the written statement filed by the insurance company. Paras 3, 7, 9 & 10 being relevant are reproduced hereunder:
"3- ;g fd vkosnu i= ds dafMdk dzekad & 5 vLohdkj gSA ;g vLohdkj gS fd fnukad 25@02@2012 dks e`rd jke eukst eksVj lk;fdy dks lkekU; xfr ls pyk jgk FkkA ;g vLohdkj gS fd vukosnd dzekad &1 }kjk cksysjks thi dzekad lh th@04@,p-ch-@3304 dks rsth o ykijokgh ls pykrs gq, ,e- eukst dks Bksdj ekj fn;kA e` r d viu s ek sV j lk;fdy dk s vR; ar r st h o ykijokgh l s pykr s gq , Lo; a Vdjk;k gS A ek sV j lk;fdy dk Lokeh ,o a chek d ai uh vko';d i{kdkj gS ] D;k saf d nq ? kZ V uk ek sV j lk;fdy pkyd d s ykijokgh l s ek sV j lk;fdy pyku s d s dkj.k gq b Z gS A vuko sn d dz e k ad &1 }kjk okgu pyku s e sa dk sb Z r st h o ykijokgh ugh a cjrh x;h gS A vU; ckr sa vLohdkj gS A 7- ;g fd vkosnu i= ds dafMdk dzekad&13 ] 14] 15] 16 vkSipkfjd gksus ls mRrj nsus dh vko';drk ugha gSA e` r d viu s Lo; a d s ykijokgh l s ek sV j lk;fdy pyku s d s dkj.k gq b Z nq ? kZ V uk d s fy, dk sb Z {kfri wf rZ iku s dk vf/kdkjh ugh a gS A 9- ;g fd vuko sn d dz e k ad &2 }kjk chek ikfylh 'krk sZ a dk mYy a? ku dju s d s dkj.k rFkk okgu l ac a/ kh nLrko st ] jftLVª s' ku rFkk Mª k ;fo ax yk;l sal iz L rq r u dju s d s dkj.k vuko sn d dz e k ad &3 {kfri wf rZ g sr q ftEe sn kj ugh a gS A eksVj ;ku vf/kfu;e dh /kkjk 158 dk Hkkx 6 ,oa /kkjk 134 dk Hkkx *lh^ ds vuqlkj tkudkjh fn;k tkuk vkKkid gSA vr% chfer okgu ls dfFkr nq?kZVuk ugha gqbZ gS vkSj u gh chfer okgu ls dfFkr nq? kZVuk esa 'kkfey FkhA chfer okgu dks ek= jkf'k izkfIr ds vk'k; ls fy;k gksuk crk;k tk jgk gSA vr% vkosnd dk nkok vkosnu fujLr djus ;ksX; gSA 10- ;g fd nq?kZVuk nks okguksa ds chp gqbZ gSA mDr nq?kZVuk e`rd ds Lo;a ds ykijokgh ls gqbZ gSA eksVj lk;fdy ds Lokeh ,oa chek daiuh vko';d i{kdkj gs rFkk {kfriwfrZ ds fy, ftEesnkj gSA vukosnd dzekad&1 }kjk okgu pykus esa dksbZ rsth o ykijokgh ugha cjrh gSA fQj Hkh ekuuh; U;k;ky; bl fu"d"kZ ij igqaprh gS fd mDr nq?kZVuk ds fy, vukosnd dzekad &1 Hkh ftEesnkj gSA pwafd nq?kZVuk nks okguksa ds chp gqbZ gSA nksuksa gh okgu pkydksa }kjk i;kZIr nwjh rFkk VªsfQd fi;eksa dk ikyu u djrs gq, okgu pyk;k x;k gSA bl dkj.k nksuks gh pkydksa ds la;qDr lgnk;h mis{kk (Contributory Negligence) ds dkj.k nq?kZVuk gksuk ekuk tkuk pkfg,A"
From the above, it is clear that only in para-9 of the written statement under the head "Additional Statement" it has been stated by the insurance company that there was violation of policy conditions, relevant documents of the vehicle have not been produced and therefore, the insurance company cannot be held liable to pay compensation. Further, it has been pleaded that Sections 158 and 134 of the Motor Vehicles Act have not been followed, therefore, the vehicle in question was not involved in the accident. Thus, it appears that there is no specific denial by the insurance company that the accident had not occurred from the vehicle in question. In fact, the contents of the written statement filed by the insurance company makes it clear that the main defence taken by the insurance company is negligence of the deceased or contributory negligence of the driver of the offending vehicle and the deceased.
20. Before deciding claim cases, one important aspect which is to be kept in mind by the Tribunal is that the provisions of Motor Vehicles Act are benevolent in nature, they are made to safeguard the interests of the claimants and the claimants should not be victimized or deprived of their legal entitlement. True it is that grant of compensation is not a charity but all the same it is to be ensured by the Courts/Tribunals that justice is done to the claimant who approaches the Court, with its limitations. In the present case, even if the eyewitness has not been examined by the claimant but the fact remains that the claimants have specifically pleaded and adduced evidence that there was accident involving the vehicle in question in which the deceased suffered grievous injuries and succumbed to the same. Most importantly, record of the criminal case was also filed before the Tribunal wherein there are documents exhibited. Even if the Tribunal was not satisfied, then instead of rejecting the claim of the claimants outright, in the facts and circumstances of the case, it was under an obligation to conduct an enquiry as envisaged under Section 168 of Motor Vehicles Act to ascertain the truth.
Yet another important aspect of the matter which has been completely overlooked by the Tribunal is that the driver and the owner of the offending vehicle did not appear before the Tribunal and also did not file written statement. Though evidence has been adduced by the insurance company but their witness has not uttered even a single word that the accident has not occurred or that the vehicle in question was not involved in the accident. The basic principle of res ipsa loquitur has been completely ignored by the Tribunal while deciding the claim case. Section 158(6) read with Section 166(4) of the Motor Vehicles Act, make it clear that that even on the basis of FIR, the Tribunal may decide the claim case and filing of claim petition at times is not necessary. While dealing with this aspect, the Apex Court in the matters of Jai Prakash Vs. National Insurance Company Ltd. and others (2010) 2 SCC 607, has observed thus:
"20. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents received under Section 158(6) of the Act as applications for compensation under Section 166(4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Register General shall ensure that necessary registers, forms and others support is extended to the Tribunal to give effect to Section 166(4) of the Act."
21. As regards the judgments relied upon by the insurance company, the same being entirely distinguishable on facts are of no help to it. In the case of Surendra Kumar Arora and another (supra), only charge sheet was filed in the criminal case and before the police no action was sought against the driver of the offending vehicle. Likewise, in the case of Lachoo Ram and others (supra), in rebuttal there was evidence on behalf of driver regarding negligence and further, there was evidence that the accident occurred in a place which was very narrow. However, in the present case, no such evidence has been adduced by the respondents. Even before this Court, respondent No.1 has admitted the accident and stated that the accident occurred due to negligence of the deceased and not the driver of the offending vehicle. Being so, it is clear that the factum of involvement of the offending vehicle in the accident has not been disputed by any of the parties.
22. In the present case, it appears that while dismissing the claim case the Tribunal failed to take into account the settled legal position that strict rules of Evidence Act are not to be insisted on by the Tribunal on being limited jurisdiction. In the facts and circumstances of the case, maxim res ipsa loquitur is fully attracted which means accident speaks for itself or accident tells its own story. In such a case, the claimant is required to prove the accident only and nothing more. The claimants are merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. None of the parties have specifically denied the factum of accident, record of the criminal case instituted against driver of the offending vehicle was with the Tribunal and therefore, as per Sections 158(6) and 166(4) of the Motor Vehicles Act, the Tribunal was not required to go into any further technicality by directing the claimants to still prove that the offending vehicle was involved in the accident unless, of course, the party opposing the petition specifically denies the involvement of such vehicle.
23. Thus, having examined the facts and circumstances of the present case in the light of above principles of law governing the field, this Court is of the considered view that the Tribunal was not justified in dismissing the claim case merely on the ground that the claimants failed to prove that the deceased died in an accident involving the offending vehicle. The Tribunal has further erred in law in holding that case of the claimants is liable to be dismissed on the ground of non- examination of eyewitness.
24. In the result, the appeal is allowed and the impugned award is hereby set aside. The matter is remanded to the Tribunal for deciding the claim case filed by the claimants afresh in accordance with law.
25. Parties to appear before the Tribunal on 19th September, 2016.
26. Considering the fact that entire evidence has already been adduced by the parties and only award is to be passed, let this be done within a month from the date of appearance of the parties.
Sd/ (Pritinker Diwaker) Judge Khan