Allahabad High Court
Oriental Insurance Company Ltd.Thru ... vs Smt.Urmila Devi And Ors. on 30 July, 2021
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 19 Case :- FIRST APPEAL FROM ORDER No. - 908 of 2015 Appellant :- Oriental Insurance Company Ltd.Thru Its Dy.Manager Respondent :- Smt.Urmila Devi And Ors. Counsel for Appellant :- S.C.Gulati Counsel for Respondent :- Ravindra Pratap Singh Along with Case :- FIRST APPEAL FROM ORDER No. - 911 of 2015 Appellant :- Oriental Insurance Company Ltd.Thru Its Deputy Manager Respondent :- Smt. Ramkali Alias Lakhraja And Ors. Counsel for Appellant :- S.C.Gulati Counsel for Respondent :- Ravindra Pratap Singh Hon'ble Jaspreet Singh,J.
1. Heard Ms. Pooja Arora, holding brief of Sri S.C. Gulati, learned counsel for the appellant as well as Sri Ravindra Pratap Singh, learned counsel for the claimant-respondents.
2. The instant two appeals arise out of the same accident which occurred on 09.12.2007 wherein two persons namely Ram Kishun and Molhey expired. The claim petition filed by the legal heirs of Ram Kishun bearing M.A.C.P. No. 568 of 2010 was decided by the MACT/ADJ, Court No. 2, Barabanki by means of judgment and award dated 05.08.2015 wherein a sum of Rs. 3, 07,166/- along with 7% interest has been awarded in favour of the claimant. The Tribunal has directed that the award shall be satisfied by the Insurance Company with liberty to recover the sum from the owner. Against this award passed in MACP No. 568 of 2010, the appellants have preferred F.A.F.O. No. 908 of 2015.
3. Similarly, the claim petition preferred by the legal heirs of Molhey was registered as M.A.C.P. No. 569 of 2010 which was also decided by the MACT/ADJ, Court No. 2, Barabanki by means of judgment and award dated 01.08.2015 and a sum of Rs. 3,69,500/- along with 7% interest has been awarded in favour of the claimants. In this case too, the time the appellant has been directed to satisfy the award with liberty to recover the same from the owner of the offending vehicle. The award passed in M.A.C.P. No. 569 of 2010 has been assailed in F.A.F.O. No. 911 of 2015. It is in this manner that the two aforesaid appeals have been connected. Since the questions of fact and law raised by the parties are similar in both the matters, accordingly, both the appeals are being decided by this common judgment.
4. The learned counsel for the appellants has strenuously urged that the Tribunal has erred in granting the right to recovery to the appellant. It is submitted that it was a case where the license of the driver of the offending vehicle was found to be fake. It was clearly established that not only the license of the driver was fake but the tractor in question was being utilized for the purposes other than agriculture and that is a clear violation of the policy conditions, in such a case, there was no occasion for the Tribunal to have fastened the liability on the Insurance Company rather the entire award ought to have been passed against the owner and driver and no liability could have been fastened on the Insurance Company.
5. The other limb of the submission of the learned counsel for the appellant is that the claimant was not entitled to get the compensation for the reason that there were discrepancies in the statement made in his pleadings as well as the proof filed by the claimants and where there is a variance between pleadings and proof, the claimant could not be granted the benefit and for the said reason, the award passed by the Tribunal is erroneous.
6. Elaborating her submissions further, Ms. Arora has submitted that a First Information Report was lodged which was a document filed by the claimant themselves, the version as indicated in the First Information Report was quite contrary to the facts as alleged in their claim petition.
7. It is further urged that once the documentary evidence in shape of First Information Report was available on record, any contrary evidence which was led by the claimants-witnesses would not override the same and ignoring this aspect the Tribunal has committed an error in allowing the claim petition.
8. In support of her submissions, the learned counsel for the appellants has relied upon the decision of the Apex Court in the case of (i) Beli Ram Vs. Rajinder Kumar and Another reported in 2020 (3) TAC 673; (ii) Bharti Axa General Insurance Co. Ltd. Vs. Aandi and Others, a Division Bench judgment of the Madras High Court, reported in 2020 (1) TAC 894; (iii) The National Textile Corporation Ltd. Vs. Naresh Kumar Badri Kumar Jagad and Others reported in 2011 (29) LCD 1793, (iv) United India Insurance Company Ltd. through its Divisional Manager Vs. Sujata Arora and Others reported in 2013 (3) TAC 2; (v) Oriental Insurance Company Ltd. Vs. Premlata Shukla and Others reported in 2007 ACJ 1928; a decision of the Karnataka High Court in the case of (vi) United India Insurance Co. Ltd. Vs. Hussain Sab and Others reported in 2006 ACJ 1352 and also on the case of National Insurance Company Ltd. Vs. Smt. Leela @ Vimla reported in 2015 (2) TAC 120.
9. Drawing strength from the aforesaid decision, it is urged that where there is ample evidence on record including a report from the Road Transport Officer to indicate that the license was fake and the driver as well as the owner did not contest the proceedings to belie the aforesaid report, in such circumstances, the only necessary corollary is that the owner was aware that the license of the driver was fake and the Insurance Company by bringing on record the aforesaid documents had very well discharged their burden and in such circumstances no liability could have been fastened upon the appellant.
10. The learned counsel for the appellant submits that in some of the decisions relied by the learned counsel for the appellant it has been noticed that if the documents are filed by the claimants it would become binding on them and any variation in their statement qua the documents adduced, then it would be the documents which would prevail and for the said reasons, it has been argued that the First Information Report, the site plan as well as the technical inspection report clearly belies the stand of the claimants and for the said reason, they cannot be granted the benefit and the Claim Tribunal ought to have rejected the claim petition.
11. Per contra, Sri R.P. Singh, learned counsel for the claimants-respondents has submitted that the Tribunal after considering the evidence on record including that of the eye-witnesses, held, that as far as the deceased persons are concerned, they were neither travelling in trolley which was accompanied by the offending tractor rather they were standing at the road side. The manner in which the accident has been described clearly indicates that the deceased were standing at the road side while the tractor accompanying the trolley was being driven rashly and negligently. Another truck is said to have hit the trolley from behind as a result the tractor trolley turned turtle and the deceased were buried thereunder and they succumbed to their injuries.
12. It is also urged by Sri Singh that the claimant-witnesses clearly indicated that in so far as the deceased persons are concerned, they were not travelling in the trolley. In case if any violation has occurred on account of breach of the policy or even on account of fake license, the rights of the third party cannot be hampered and in so far as the grant of compensation is concerned, the same is absolutely justified. He has further submitted that since the Tribunal has taken care of and protected the rights of the appellant by granting the right to recover, no error can be found in the award of te Tribunal especially in light of the decision of the Apex Court in the case of National Insurance Company Ltd. vs. Swaran Singh, reported in (2004) 3 SCC 297.
13. He has further submitted that the decision of Swaran Singh (Supra) has not been noticed in the judgment cited by the learned counsel for the appellant. He has also urged that there has been a consistent view that in so far as the claimants are concerned, their rights cannot be hampered on account of any breach or the violations of the policy conditions or for want of proper license. In all such cases, the right of recovery is always granted to the Insurance Company to protect their rights. In the instant case where the claimants were found to be third parties standing at the road side and having succumbed to their injuries on account of rash and negligent act of the offending vehicle and their claim petitions are under Section 163-A of the Motor Vehicles Act, which 1988 has been allowed on proper appreciation of evidence and findings of fact has been recorded which requires no interference.
14. Sri R.P. Singh in support of his contention has relied upon the decision of the Apex Court in the case of (i) Parvinder Singh Vs. New India Assurance Co. Ltd. and Others reported in 2019 (3) TAC 353; (ii) Halappa Vs. Malik Sab reported in 2018 (1) TAC 340; (iii) Shamanna and Another Vs. Divisional Manager, Oriental Insurance Company Ltd. and Others reported in 2018 (3) TAC 677 and a Division Bench judgment of this Court in the case of (iv) National Insurance Company Ltd. Vs. Jai Deo Singh and Others reported in 2010 (28) LCD 499.
15. In order to consider the submissions of the respective parties and to decide the controversy, it will be relevant to notice certain brief facts giving rise to the instant appeals.
16. It is the case of the claimants that on 09.12.2007 at around 09:00 PM In Gram Kathaura, P.S. Kumbhrauli, District Sultanpur, the deceased Ram Kishun and Molhey were standing at the road side on the Sultanpur-Lucknow State Highway. At the relevant time, a tractor bearing No. UP 41 J 1093 was coming from the Kathaura. A truck which was coming behind the said tractor hit the aforesaid tractor, as a result, the tractor and the trolley turned turtle, as a result, the deceased Ram Kishun and Molhey sustained grievous injuries. ultimately they succumbed to their death. It was further stated that in so far as the deceased are concerned they were earning Rs. 3.000/- per month and it is in view of the aforesaid, the petition under Section 163-A of the Motor Vehicles Act was filed.
17. The claim petition filed by the legal heirs of Ram Kishun was registered as M.A.C.P. No. 568 of 2010 whereas the M.A.C.P. filed by the legal heirs of the Molhey was registered as M.A.C.P. No. 569 of 2010. In both the cases, the owner was impleaded as defendant no. 2 but he did not appear. It is only the Insurance Company which contested the Claim Petition.
18. After considering the pleadings, the Tribunal framed 6 issues. Considering the issue no. 1, the Tribunal arrived at a finding that the death of the deceased Molhey and Ram Kishun occurred on account of the fact that the tractor was moving on the Kathaura crossing and was hit by an unknown truck which resulted in the tractor and trolley turning turtle and in the aforesaid accident both Ram Kishun and Molhey expired.
19. The Tribunal also found that in so far as the license is concerned, the same was found to be fake and also that the tractor was being driven contrary to the policy conditions. Thereafter it proceeded to consider the quantum, and in the case of Ram Kishun, a sum of Rs. 3,07,166/- along with 7% was awarded whereas in the case of Molhey, a sum of Rs. 3,69,500/- along with 7% interest was awarded. It is these two awards which are challenged in the aforesaid respective appeals.
20. The core question raised in the aforesaid appeals which requires determination is two fold: (i) Whether the documents which were filed by the claimants would be binding on them per-se and in case of variance between pleadings and proof, the claim petition was liable to fail. (ii) Whether in the facts and circumstances where the license of the offending vehicle was found to be fake, in such circumstances whether the Tribunal has erred in granting the right of recovery to the Insurance Company or the entire award ought to have been fastened upon the owner of the vehicle.
21. In order to answer the aforesaid issues, it will be relevant to notice the documents filed by the claimants, inter-alia amongst others were:- a copy of the First Information Report, lodged by one Sri Siraj son of Sri Badassur, the site plan, the technical inspection report, the final report, the registration papers of the offending tractor bearing U.P. No. 41J 1093, the policy of insurance as well as certain other documents relating to the treatment in the hospital as well as the death certificate of the deceased along with the postmortem report.
22. The claimants in the case of Ram Kishun had examined his wife as P.W.1 and Durgesh Kumar as P.W. 2 and Ashfaq Amad as P.W. 3. P.W. 2 and P.W. 3 are said to be the eye-witnesses. Similarly, in the case of Molhey similar documents have been filed and the wife of Molhey Smt. Ram Kali was examined as the P.W.1 whereas Sri Durgesh Kumar and Ashfaq Ahmad appeared as P.W. 2 and P.W. 3 respectively.
23. From the perusal of the pleadings available on record, it would indicate that in the claim petitions filed by the respective claimants, it was alleged that the deceased sustained injuries in an accident which took place on 09.12.2007 at around 09:00 PM. It is further stated that on account of the rash and negligence of the tractor bearing No. UP 41 J 1093, the accident occurred. It was also stated that an unknown truck coming from behind the said tractor from the Sultanpur side negligently dashed against the aforesaid tractor as a result, the tractor and trolley lost the control and turned turtle resulting in the death of the deceased who were standing at side of the road.
24. As already noticed above, the owner of the truck did not contest the proceedings. The matter remain ex-parte against him. It is only the Insurance Company who filed its written statement which is available on record as Paper No. Ga-21. In the aforesaid written statement, the pleas regarding the tractor being utilized for non-agriculture purpose has been raised in paragraph 17 as well as the fact that unless and until the license of the driver is found to be valid, no liability can be fastened on the Insurance Company has been raised.
25. Dealing with the first submission of the learned counsel for the appellant that there is variance in the pleadings and proof and to buttress her submissions, the learned counsel for the appellant has drawn the attention of the Court to the copy of the First Information Report wherein it is indicated that the father of the informant along with Ram Dev and few others were returning to their Village on the tractor-trolley and around 09:00 PM near the Kathaura crossing, a truck came from behind which hit the tractor-trolley as a result the same turned turtle and one Sri Jagdeo died.
26. It was also indicated in the First Information Report that few other persons sustained injuries and they were admitted in the Indo Gulf Hospital. On the basis of the aforesaid document, it is urged by the learned counsel for the appellant that there is no reference of the deceased Ram Kishun and Molhey to be standing at the road side, nor there is any reference that there were any bye-standers who were also injured and succumbed to their death.
27. Referring to the site plan, it is urged that the site plan only indicates that the manner in which the tractor was moving as well as the alleged truck coming from behind and the place where the body of the deceased was found, however, the same does not indicate in any manner that the alleged deceased were standing on the road side while the inference is that since the trolley was carrying persons and it is the case of the informant who informed the police of the accident that only Jagdeo expired. There is reference to certain other persons also travelling in the said tractor-trolley who sustained injuries and actually it is the deceased persons who were also amongst the said persons travelling in the trolley. Thus, for the said reason, the claimants could not have been granted compensation in respect of such accident where the deceased themselves was travelling in the trolley.
28. Referring to the technical inspection report, it has been urged that the claimants-witnesses stated that the truck did not have any number whereas in the technical inspection report, there is a clear indication that the tractor did not bear any registration number either in the front or on the back, thus, the case of the claimants was doubtful as to whether in absence any tractor number, it could be ascertained that it was the offending tractor-trolley which was involved in the accident.
29. It has been further urged that the record would indicate that even the version that an unknown truck had hit the tractor from behind was also not corroborated, inasmuch as, even the police filed a final report which belied the manner in which the alleged accident is said to have occurred as per pleadings.
30. It is in view thereof it has been submitted that where the case of the claimants was categorical that an unknown truck had hit the tractor and the deceased were the bye-standers who suffered injuries and succumbed to their death was not proved apart from the fact that in all probability they themselves were travelling in the trolley along with the other persons, hence, the case as carved out in the pleadings and what has transpired from the documentary evidence on record is quite different, hence, in such circumstances, the claimants were not entitled to any benefit.
31. At the very outset, if the submission of the learned counsel for the appellant is considered, it would be noticed that the instant petitions had been preferred under Section 163-A of the Motor Vehicles Act, 1988. The clear case of the claimant is that the deceased were standing on the road side on the State-Highway. It has been stated by them that the tractor trolley was approaching the Kathaura crossing when an unknown truck hit the said tractor-trolley from behind which resulted in the tractor-trolley losing its control and it turned turtle, as a result the bye-standers got buried under it and sustained injuries and finally succumbed to their death.
32. In order to establish the aforesaid, the widow of the respective deceased were produced as P.W. 1 in both the claim petitions, who have materially corroborated the statement contained in the claim petition, however, they are not the eye-witness and for the said reason, they are formal witness in so far as the occurrence is concerned.
33. However, it will be relevant to notice the statement of the P.W. 2 and P.W.3 who are the eye-witness. In so far as P.W. 2 Durgesh Kumar is concerned, he has clearly stated that he was riding his scooter on which he had some goods laden thereon and for the said purpose he was driving slowly. He further stated that the said tractor and trolley had overtaken him and thereafter he had seen that an unknown truck had come and hit the aforesaid tractor-trolley from behind which has caused the accident wherein two bye-standers also succumbed to their death.
34. From the perusal of the entire statement of P.W.2, it cannot be inferred by any stretch of imagination that there was any suggestion or statement that the two bye-standers who succumbed to their death were travelling in the said trolley. Thus, it cannot be said that the Tribunal has arrived at an incorrect finding. Considering the fact that the P.W. 2 was an eye-witness and he had been subjected to cross-examination while nothing has been elicited which can adversely impact the evidence on record.
35. Similarly, if the statement of P.W. 3 Ashfaq Ahmad is seen, he himself has stated that he was travelling in the offending tractor-trolley. This witness of fact who himself sustained injuries in the said accident is a prime witness. Even in his examination as well as in his cross-examination there is no statement to indicate that the deceased were also travelling with the said witness in the tractor-trolley, though, he has indicated the name of certain persons who were travelling along with him in the trolley but nonetheless it does not include the names of two bye-standers i.e. Ram Kishun and Molhey who expired.
36. In light thereof, this Court finds that there is no error which has been committed by the Tribunal to arrive at a finding that the bye-standers were not travelling in the trolley but had died on account of the accident and as such their claim petition under Section 163-A of the Motor Vehicles Act was rightly allowed.
37. As far as the variance between the pleadings and the proof is concerned, the submission of learned counsel for the appellant is misconceived as neither the First Information Report was lodged by the claimants rather it was lodged by the son of the person who was travelling in the said trolley accompanied with the tractor.
38. The First Information Report merely indicates that an accident or an incident had taken place which has been reported to the police. The said document has been brought on record only for a limited purpose to indicate that an accident had taken place but nowhere it actually corroborates the statements contained in the First Information Report as far as the manner in which the accident had occurred, more so, the contents were not got written by the claimant themselves. In view of the aforesaid, the contention of the learned counsel for the appellant does not find favour with the Court.
39. In so far as the other documents are concerned, the site plan as well as the technical inspection report also does not have much relevance for the simple reason that one of the eye-witnesses had mentioned the truck number. Even on the technical inspection report, there is a mention of the vehicle in question, however, a note has been appended that there was no registration number affixed on the tractor either on the front or on the back. This minor discrepancy in any case is not going to affect the right of the third party who have sustained injuries that finally led to his death and moreso when the factum of accident was established by eye-witnesses and no other witness was produced by the owner/driver to contradict their testimony.
40. In any case, it is not disputed that it is the aforesaid tractor in question which has caused the accident or was the cause of death of the deceased Ram Kishun and Molhey and for the said reason certain discrepancy does not have any material bearing on the finding recorded by the Tribunal especially in light of the decision of the Apex Court in the case of Sunita and Others Vs. Rajasthan State Road Transport Corporation & Another in Civil Appeal No. 1665 of 2019, reported in 2019 SCC Online SC 195 as well as in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation reported in (2009)13 SCC 530
41. Taking note of the decision cited by the appellant on the point regarding variance between the pleadings and proof the learned counsel for the appellant has heavily relied on the decision of The National Textile Corporation (Supra). From a reading of the aforesaid decision, it would indicate that first of all it does not emenate from a motor accident case where the rules of pleadings and proof are not so strictly complied. Rather the case of the National Textile Corporation (Supra) arises out of a core civil litigation governed by the rigors of C.P.C. and the Evidence Act. Hence, the same proposition cannot be extended to the extent in the proceedings under the Motor Accident Compensation Cases.
42. Similarly, in the case of Premlata Shukla (Supra) and Hussain Saab (Supra) the facts of two cases are quite different even the proposition therein does not got attracted in the instant case and therefore the same are clearly distinguishable.
43. On the other hand if the Division Bench decision of Jai Deo Singh is noted, it would indicate that in paragraph nos. 8 and 9, the Division Bench has considered the aspect of the matter in the following words:-
....8. The trial in a criminal case and the proceeding of the tribunal under Motor Vehicles Act, are governed by different law and the finding recorded by the police while recording statement under Section 161 CrPC or while filing charge-sheet is not a substantive evidence. It is settled law that the contents in the First Information Report or the statement recorded under Section 161 CrPC are not a substantive evidence. It shall always be incumbent on the concerned party that while relying upon such statement, he or she should also prove the same like other evidence in accordance with the provisions contained in the Evidence Act. The burden was on the appellant insurance company to prove by cogent and trustworthy evidence that the vehicle was being driven by Kallu Bajpai. Without any corroborative evidence, the contents of the charge-sheet or the statement recorded under Section 161 CrPC or the First Information Report may not be taken as substantive evidence. Moreover, the contents of Section 161 CrPC or the charge-sheet are the statement given before the police and lacks evidentiary value unless proved in accordance to law.
9. Accordingly, submission of the petitioner's counsel to treat the contents of statement recorded under Section 161 CrPC or the charge-sheet or the First Information Report as substantive evidence in the case in hand before the tribunal seems to be mis- conceived and not sustainable. The sole witness of the appellant Shri Sanjai Trivedi (DW 2) has stated that he does not know Kallu Bajpai.
44. At this stage, it will be relevant to notice the Division Bench decision of this Court in the case of Shiv Murti Singh Vs. Nawab Khan, reported in 2014 (32) LCD 1533 wherein it has been held as under:-
"(11) In United India Insurance Company Ltd. Vs. Shila Dutta and others (2011)10 SCC 509, a three Judges Bench of Hon'ble Supreme Court culled out certain underlying principles and propositions for deciding claim petitions under the Act. Some of them as relevant to the facts of present case are :-
1. The rules of the pleadings in principle do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo moto initiated by the Tribunal.
2. That, though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in adversarial litigation.
3. The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of the matters relevant to inquiry, to assist it in holding the enquiry.
4. The Tribunal while passing the award makes a statutory determination of compensation on the occurrence of an accident after due enquiry in accordance to the statute.
(12) In Bimla Devi and others Vs. Himachal Road Transport Corporation (2009)13 SCC 530, Hon'ble Supreme Court held that a motor accident claim petition is required to be decided by the Tribunal on the touch stone of preponderance of probability and not on the basis of proof beyond reasonable doubt.
(13) In Dulcina Fernandes and others Vs. Joaguim Xavier Cruz and another, (2013) 31 LCD 2432, Hon'ble Supreme Court following the dictum laid down by it in Shila Dutta and Bimla Devi's Cases (Supra) held that the rules of pleadings do not strictly apply to motor accident claim cases and that the plea of negligence is required to be decided by the Tribunal on the touch stone of preponderance of probability and not on the basis of proof beyond reasonable doubt."
45. The This Court had the occasion to consider the aforesaid aspect in F.A.F.O. No. 737 of 2013 (Raj Kumar Hans and Others Vs. Saroj and Others), decided on 14.07.2021 the Court noticed the decisions of the Apex Court in the case of Sunita and Others Vs. Rajasthan State Road Transport Corporation & Another in Civil Appeal No. 1665 of 2019, reported in 2019 SCC Online SC 195 wherein it has held as under:-
"11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a postmortem report vis-a-vis the averments made in a claim petition.
14. Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.
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." (emphasis supplied) The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside.
23. Following the enunciation in Bimla Devi case, this Court in Parmeshwari vs. Amir Chand1 noted that when filing of the complaint was not disputed, the decision of the Tribunal ought not to have been reversed by the High Court on the ground that nobody came from the office of the SSP to prove the complaint. The Court appreciated 7 (2011) 11 SCC 635 21 the testimony of the eyewitnesses in paras 12 & 13 and observed thus: (Parmeshwari case, SCC p. 638) "12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.
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. ..."
24. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal2, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in para 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus: (SCC pp. 458-59)
1. "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 8 (1980) 3 SCC 457 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. Indeed, the State must seriously consider nofault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard."
25. In Dulcina Fernandes3, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi. In paras 8 & 9 of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta4, has been adverted to as under: (Dulcina Fernandes case, SCC p. 650) "8. In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10) ''10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.
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(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation.
(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.'
9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, SCC p. 519) ''10. ... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.'"
In para 10 of Dulcina Fernandes, the Court opined that nonexamination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability."
46. Similarly, the Apex Court in the recent case of Anita Sharma and Others Vs. New India Assurance Company Limited and Another reported in 2021 (1) SCC 171 has held as under.
".......18. The failure of the respondents to cross-examine the solitary eyewitness or confront him with their version, despite adequate opportunity, must lead to an inference of tacit admission on their part. They did not even suggest the witness that he was siding with the claimants. The High Court has failed to appreciate the legal effect of this absence of cross-examination of a crucial witness.
19. The importance of cross-examination has been elucidated on several occasions by this Court, including by a Constitution Bench in Kartar Singh v. State of Punjab [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899] , which laid down as follows: (SCC p. 686, paras 278-79) "278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:
(1) to destroy or weaken the evidentiary value of the witness of his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;
and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.
279. The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimised by any false and invented evidence that may be tendered by the adversary party."
47. (emphasis supplied)
20. Relying upon Kartar Singh [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899] , in a MACT case this Court in Sunita v. Rajasthan SRTC [Sunita v. Rajasthan SRTC, (2020) 13 SCC 486] considered the effect of non-examination of the pillion rider as a witness in a claim petition filed by the dependants of the deceased motorcyclist and held as follows: (SCC p. 502, paras 30 and 32) ****** "30. Clearly, the evidence given by Bhagchand withstood the respondents' scrutiny and the respondents were unable to shake his evidence. In turn, the High Court has failed [Rajasthan SRTC v. Sunita, CMA No. 521 of 2017, order dated 25-7-2018 (Raj)] to take note of the absence of cross-examination of this witness by the respondents, leave alone the Tribunal's finding on the same, and instead, deliberated on the reliability of Bhagchand's (A.D. 2) evidence from the viewpoint of him not being named in the list of eyewitnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Court's observation [as set out in Parmeshwari [Parmeshwari v. Amir Chand, (2011) 11 SCC 635 : (2011) 4 SCC (Civ) 828 : (2011) 3 SCC (Cri) 605] and reiterated in Mangla Ram [Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 : (2018) 3 SCC (Civ) 335 : (2018) 2 SCC (Cri) 819] ] that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross-examine the witness concerned. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross-examination, for which opportunity was granted to the respondents by the Tribunal.
*****
32. The High Court has not held that the respondents were successful in challenging the witnesses' version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D. 2) was cross-examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondent's case, without any proper reasoning."
48. (emphasis supplied)
21. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyse the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true.
22. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz [Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1 SCC (Cri) 13] wherein this Court reiterated that: (SCC p. 650, para 7) "7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal RTC [Bimla Devi v. Himachal RTC, (2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] .)"
(emphasis supplied)
47. Thus, in view of the aforesaid, this Court is not inclined to accept the submissions of learned counsel for the appellant in respect of the first question.
48. Now, coming to the other questions raised regarding the correctness of the Tribunal in granting the right of recovery to the appellant. It is not disputed that the license was found to be fake. It is also not in dispute that the tractor was being utilized for any other purpose other than agriculture. Now the only contention is whether the rights of the claimants had to be balanced qua the rights of the Insurance Company. In this aspect of the matter, it will be relevant to notice the findings recorded by the Apex Court in the case of Swarn Singh (Supra) which reads as under:-
"(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case."
49. The Division Bench of this Court in the case of National Insurance Company Ltd. vs. Mohd. Anees & Ors., (supra) also relying upon the judgment of the Hon'ble Apex Court in the case of Swaran Singh held as under:-
"(18) From the above, it is clear that insurer has to prove its defence that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(19) The Learned Tribunal has held that Insurance Company has not given any evidence to show that truck owner was having knowledge that the driver was not having a valid and effective driving licence. In view of this, the Tribunal has rightly held that the compensation amount is to be paid by the opposite party no.3, National Insurance Company (appellant)."
50. This decision of Swaran Singh till date holds the field and has not been distinguished or its correctness has not been doubted. However, its decision has also been followed in various other cases including the decision in the case of Nirmala Kothari Vs. United India Insurance Company Ltd. reported in 2020(4) SCC 49.
51. In so far as the grant of recovery rights to the Insurance Company is concerned, the same has been upheld by the Apex Court in the case of Parvinder Singh (Supra) as well as Hallappa (Supra) and Shamanna (Supra) These cases also refer to the proposition which have been laid down by the Apex Court in the case of Swaran Singh (Supra).
52. Considering the submissions of learned counsel for the appellants who has placed heavy reliance on the decision of the Apex Court in the case of Beli Ram (Supra) and has urged that in the said case the decisions of the Swaran Singh (Supra), Nirmala Kothari (Supra) have already been considered and therefore in the aforesaid context, it has been held that where the driver was driving the offending vehicle on the expired license for over a period of 3 years in such circumstances the liability on the Insurance Company was absolved.
53. However, upon a careful reading of the decision of the Apex Court in the case of Beli Ram (Supra), it would indicate that the case arises out of the Employees' Compensation Act, 1923, though, the Apex Court has considered the principles recorded in the case of Swaran Singh (Supra) but nevertheless there is no attempt to dilute or distinguish the same. The Apex Court has also taken note of the fact recorded in paragraph 16 of the aforesaid report to indicate that in the present case the Court was considering the entire issue only in respect of Employees' Compensation Act and not in respect of the matter arising out of the Motor Accident Claims Tribunal Act.
54. It is also well known that the precedent value of a decision is based on what has been decided in the judgment and not what can be inferred therefrom.
55. This Court is fortified in its view in light of the decision of the Apex Court in the case of Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others reported in 2003 (2) SCC 111.
"59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [See Ram Rakhi v. Union of India [AIR 2002 Del 458 (FB)], Delhi Admn. (NCT of Delhi) v. Manohar Lal [(2002) 7 SCC 222 : 2002 SCC (Cri) 1670 : AIR 2002 SC 3088], Haryana Financial Corpn. v. Jagdamba Oil Mills[(2002) 3 SCC 496 : JT (2002) 1 SC 482] and Nalini Mahajan (Dr) v. Director of Income Tax (Investigation) [(2002) 257 ITR 123 (Del)] .]"
56. Thus, in view of the aforesaid, this Court is of the considered view that the decision of the Beli Ram (Supra) does not come to the rescue of the appellant.
57. From the perusal of the same, it would indicate that the fact situation is quite different and for the said reason, the case in hand is quite different, therefore, this Court is bound by the decision of the Apex Court in the case of Swaran Singh (Supra).
58. The learned counsel for the appellant has placed heavy reliance on the case of Sujata Arora (supra). However, from the perusal of the said decision, it would indicate that it does not take note of the earlier binding decision of Swaran Singh (Supra) nor does it deal with the issue regarding fake license elaborately.
59. For the aforesaid reasons, the decision of the Division Bench judgment of Madras High Court in the case of Bharti Axa General Life Insurance (supra) also does not help the appellant. The decision of a learned Single Judge of this Court in the case of Smt. Leela @ Vimla also does not take note of the earlier binding decision of the Swaran Singh, hence, for the same reason, it does not help the appellant.
60. Where as the decisions of the Apex Court in the case of Parvinder Singh (Supra) after considering Swaran Singh (Supra) has dealt with the scope of principal of pay and recover. The decision of Shamanna has further been followed in the later decision of Parvinder Singh (supra).
61. In light of the aforesaid decisions, it can be clearly culled out that where the driver does not have a valid license or its a case of fake license in such cases pay and recover can be provided in case of third party risk and in order to avoid liability it must be established that the owner had taken adequate care to find out whether the driver had a license which fulfills the requirement of law. No such evidence is there on record to show that the owner did not take such care, hence, even the second submission of the learned counsel for the appellant fails.
62. In light of what has been stated above, this Court is of the considered view that there is no error committed by the Tribunal while allowing the claim petition and granting the right of recovery to the appellant.
63. In view of what has been stated above, the appeals are devoid of merits and are consequently dismissed. In the facts and circumstances, there shall be no order as to costs.
64. Any amount deposited before this Court shall be remitted to the Tribunal concerned for being released to the claimant-respondents and the remaining amount under the award with up to date interest shall also be deposited by the Insurance Company within a period of four weeks from today to be released in favour of the claimants thereafter the Insurance Company shall be at liberty of recovering the same from the owner of the offending vehicle in accordance with law.
65. The record of the Tribunal shall also be remitted within a period of one week from today.
(Jaspreet Singh, J.) Order Date :- 30.07.2021/Asheesh