Karnataka High Court
Sri T C Mahesh vs The United India Insurance Co Ltd on 11 November, 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11Th DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.2454 OF 2015 (MV)
c/w
MISCELLANEOUS FIRST APPEAL NO.2143 OF 2015 (MV)
IN MFA NO.2454 OF 2015
BETWEEN:
Sri T C Mahesh
S/o late Channaveerappa
Aged about 42 years
R/o Thevadehalli Village
Hagalawadi Hobli
Gubbi Taluk-572 216.
Tumkur District.
Now residing at "Shiva Sadana"
Behind Vivekananda English School
7th Cross, Vidyanagara
Tumkuru City-572 103.
...Appellant
(by Sri V B Siddaramaiah, Advocate)
AND:
1. The United India Insurance Co. Ltd.,
I Floor, Jayadeva Complex
P B No.54, B H Road
Tumkur City-572 101.
Represented by Manager.
2. Sri Narasimhamurthy P H
S/o Huchappa
Aged about 37 years
2
Residing at Kempanahalli
Pinnenahalli, Hosakere Post
Gubbi Taluk-572 126
Tumkur District.
...Respondents
(by Sri B C Seetharama Rao, Advocate for R1;
Sri K Shantharaj, Advocate for R2)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicle Act against the judgment and award
dated 28th October, 2014 passed in MVC No.141 of 2013 on the
file of the Principal Senior Civil Judge, Motor Accident Claims
Tribunal-X, Tumkur, dismissing the claim petition for
compensation.
IN MFA NO. 2143 OF 2015
BETWEEN:
Sri Sunil H N
S/o Narayanamurthi H D
Aged about 25 years
R/o Hoskere Village
Hagalawadi Hobli
Gubbi Taluk-572 216.
Tumkur District.
...Appellant
(by Sri V B Siddaramaiah, Advocate)
AND:
1. The United India Insurance Co. Ltd.,
I Floor, Jayadeva Complex
P B No.54, B H Road
Tumkur City-572 101.
Represented by Manager.
2. Sri Narasimhamurthy P H
S/o Huchappa
Aged about 37 years
Residing at Kempanahalli
Pinnenahalli, Hosakere Post
3
Gubbi Taluk-572 126
Tumkur District.
...Respondents
(by Sri B C Seetharama Rao, Advocate for R1;
Sri K Shantharaj, Advocate for R2)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicle Act against the judgment and award
dated 28th October, 2014 passed in MVC No.142 of 2013 on the
file of the Principal Senior Civil Judge, Motor Accident Claims
Tribunal-X, Tumkur, dismissing the claim petition for
compensation.
These Appeals coming on for hearing, this day, the court
delivered the following:
JUDGMENT
These appeals are filed by the claimants, challenging the common judgment and award dated 28th October, 2014 in MVCs No.141 and 142 of 2013 on the file of the Principal Senior Civil Judge and Motor Accident Claims Tribunal-X at Tumkuru, (for short hereinafter referred to as the 'Tribunal'), dismissing the claim petitions.
2. For the sake of convenience, parties in these appeals are referred to with respect to their ranking before the Tribunal.
3. It is the case of the claimants that on 05th September, 2012, claimants-Mahesh and Sunil were proceeding from Hosakere to Arehalli on Hosakere-Chelur road and at about 9.50 p.m. Sunil went towards the left-side of the road to attend the 4 nature call and Mahesh was standing near Sunil. At that time, the rider of Hero Honda Splendour Plus motorcycle bearing registration No.KA-06/EF-8856 came in a rash and negligent manner and hit the claimants and due to the said impact both the claimants sustained grievous injuries and accordingly, the Sunil H.N. filed MVC No.142 of 2013 and T.C. Mahesh, filed MVC No.141 of 2013 on the file of the Tribunal, seeking compensation.
4. On service of notice, respondents entered appearance and filed detailed written statement. Respondent No.1 contended that the said accident occurred due to the negligence on the part of the claimants and also stated that the vehicle in question is insured with the second respondent and accordingly, contended that the Insurance Company is to be indemnified, if the compensation to be awarded in favour of the claimants.
5. Respondent No.2-Insurance Company contended that the rider of the motorcycle was not having effective driving licence to ride the motorcycle as on the date of the accident and further contended that there was delay of 17 days in filing the complaint and no explanation was made by the claimants with regard to delay in lodging the complaint and therefore, the 5 respondent No.2 Insurance Company had taken a plea that it creates a doubt with regard to occurrence of the accident and accordingly, sought for dismissal of the claim petition.
6. On the basis of the pleadings on record, the Tribunal has formulated issues for its consideration. In order to prove their case, claimants were examined as PW1 and PW2 respectively, and they have examined the Doctor as PW3 and produced 28 documents and the same were marked as Exhibits P1 to P28. Court Commissioner was examined as CW1 and marked two documents as Exhibits C1 and C2. No evidence was adduced by the respondents. The Tribunal, after considering the material on record, by its judgment and award dated 28th October, 2014, dismissed the claim petitions on the ground that the claimants fail to prove with reasonable explanation with regard to delay in lodging complaint and accordingly dismissed the claim petitions. Being aggrieved by the judgment and award made by the Tribunal, claimants have preferred these instant appeals.
7. I have heard Sri V.B. Siddaramaiah, learned counsel appearing for the claimants and Sri B.C. Seetharama Rao, 6 learned counsel appearing for the Insurance Company and Sri K. Shantaraj, learned counsel appearing for the respondent No.2.
8. Sri V.B. Siddaramaiah, learned counsel appearing for the claimants argued that the finding recorded by the Tribunal disallowing the claim petitions on the ground of delay in lodging complaint is contrary to records. In this regard, he invited the attention of the Court to wound certificates-Exhibits P4 and P5. He further contended that Exhibit C1-copy of the MLC Register extract would clearly establish the fact that claimants have sustained injuries on account of road traffic accident and in support of his contention, he relied upon the judgment of the Hon'ble Apex Court in the case of RAVI v. BADRINARAYAN & OTHERS reported in (2011) 4 SCC 693 and in the case of SUMANGALA V. VIRUPAKSHI AND OTHERS reported in 2012 KANT M.A.C. 61 (KANT) and argued that delay in lodging the complaint cannot be a sole basis to reject the claim petition without considering the factual aspects of the case in the right perspective.
9. Per contra, Sri B.C. Seetharama Rao, learned counsel appearing for the respondent Insurance company argued that the finding recorded by the Tribunal is based on the evidence on 7 record and no interference be made in respect of the judgment and award passed by the Tribunal.
10. Sri Shantharaj K, learned counsel appearing for the respondent No.2 supported the impugned judgment and award made by the Tribunal.
11. Having heard the learned counsel appearing for the parties, I have carefully perused the records. Perusal of the record would indicate that the claimants have suffered injuries on account of the road traffic accident occurred on 05th September, 2012. It is the case of the claimants that the rider of the motorcycle belonging to respondent No.2 dashed to the claimants and as a result of the same, the claimants sustained grievous injuries. The Tribunal rejected the claim petitions on the ground that there is an inordinate delay of 17 days in lodging the complaint and as such, expressed doubt with regard to occurrence of the accident. In this regard, perusal of wound certificates-Exhibits P4 and P5, would clearly indicate the fact that the claimants were admitted to the nearby Primary Health Centre of Hosakere, Gubbi Taluk around 9.58 pm on 05th September, 2012. Claimant in MVC No.142 of 2013 was admitted to Srinivasa Hospital on 06th September, 2012. Exhibit 8 P5 would indicate that the claimant-Sunil was admitted to Srinivasa Hospital on 06th September, 2012 from Victoria Hospital. In both the Exhibits P4 and P5, the cause for injury is shown as road traffic accident which would clearly establish the fact that immediately after the occurrence of the accident, the claimants were taken to nearby Primary Health Centre, Hosakere for first aid treatment. I have also noticed from the Exhibit C1- MLC Register Extract produced before the Tribunal which would indicate the fact that the claimant sustained injuries on account of road traffic accident that took place on 05th September, 2012 at about 9.50 pm. In order to discern the truth relating to the reason for delay in lodging the complaint, I have carefully considered the complaint marked as Exhibit-P1(a). The reason assigned in the complaint reads as under:
"£ÀAvÀgÀ AiÀiÁgÀÆ ¸ÀPÁðj ºÉƸÀPÉgÉ D¸ÀàvÉæUÉ ¸ÉÃj¹ aQvÉì PÉÆr¹ £ÀAvÀgÀ vÀĪÀÄPÀÆj£À «£ÁAiÀÄPÀ D¸ÀàvÉæUÉ M¼À gÉÆÃVAiÀiÁV ¸ÉÃj¸ÀÄvÁÛgÉ ªÀÄvÀÄÛ ¸ÀĤ®£À£ÀÄß ºÉaÑ£À aQvÉìUÁV «PÉÆÖÃjAiÀiÁ D¸ÀàvÉæ £ÀAvÀgÀ ¸ÀÄ¢gï gÀªÀgÀ PÀqÉAiÀĪÀgÀÄ ¦AiÀiÁðzÀÄ PÉÆnÖgÀÄvÁÛgÉAzÀÄ w½zÀÄ PÉÆArzÉÝ. DzÀgÉ «ZÁj¸À¯ÁV ¸ÀĤ®ß vÀAzÉ vÁ¬ÄAiÀĪÀgÀÄ aQvÉì PÉÆr¸ÀĪÀ PÁgÀt¢AzÁV ¦AiÀiÁðzÀÄ ¤Ãr¯Áè JAzÀÄ w½¹zÀÝjAzÀ F ¢£À vÀqÀªÁV §AzÀÄ F ¦AiÀiÁð¢AiÀÄ£ÀÄß ¤ÃrgÀÄvÉÛãÉ."9
12. Immediately thereafter, the jurisdiction police have conducted panchanama and mahazar was drawn. Taking into consideration the reason assigned by the claimants insofar as delay in lodging the complaint, I am of the considered view that the Tribunal ought to have appreciated Exhibits P4 and P5 in the right perspective and should have arrived at the conclusion that the claimants have sustained injuries on account of road traffic accident. It is well settled principle of law that delay in lodging the complaint is not fatal to filing of claim petition seeking compensation under Motor Vehicles Act, 1988. However, it is the duty of the Tribunal to appreciate the MLC records taking into consideration, date, time and the treatment given to the victims, inter alia, hospital shall refer the case to the Police as Medico Legal Case. In the instant case, no such steps have been taken by the hospital authorities to inform the jurisdictional Police with regard to the occurrence of the accident. I have also noticed from the Exhibit-P1(a)-complaint, wherein the claimants were under the impression that the complaint had already been registered before the jurisdictional police. It is also forthcoming from wound certificates that the claimant-Sunil has sustained grievous injury viz. traumatic quadripareisis due to cervical cord 10 injury. The MLC record which has been marked as Exhibit C1 and C2 would also substantiate the fact that the claimants sustained injuries on account of accident on 05th September, 2012 and the same is issued by the Primary Health Centre, Hosakere, Gubbi Taluk. In that view of the matter, the Tribunal ought to have exercised its discretion taking into consideration the beneficial legislation of Motor Vehicles Act, 1988, as the claimants suffered injury on account of road traffic accident. In this regard, it is useful to refer to the law declared by the Hon'ble Apex Court in the case of RAVI (supra), wherein at paragraphs 17 to 21 of the judgment, it is observed thus:
"17. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim.
18. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing 11 so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences.
19. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.
20. In the case in hand, the Claims Tribunal as well as the High Court, committed grave error in not appreciating the mental agony through which Suresh was passing, whose son was severely injured. In the light of the aforesaid discussion, we are of the considered opinion that the MACT as well as High Court committed error in 12 coming to the conclusion that lodging the FIR belatedly would result in dismissal of the claim petition.
21. Now, the question comes for consideration as to how much amount can be awarded to the Appellant. Record shows that victim is now aged about 16 years but is still prosecuting his studies in class V only. Apparently, on account of nature of injuries sustained by him, he was unable to prosecute his studies in right earnest and lagged behind in the same. Medical Board Certificate issued by Government R.D.B.P. Jaipuria Hospital, Jaipur dated 17.12.2004 shows that he has suffered the following injuries and was admitted as many as on four occasions in the hospital, intermittently :
"Diagnosis: Abdominal Injury with fractured Pelvis stricture urethra with ruptured urethra couplet transacted urethra (Case No. 020762) IInd Adm. 10.11.2001 to 12.11.2001, IIIrd Adm. 27.11.01 to 12.12.01; IVth Adm. 28.12.01 to 1.1.2002.""
13. In the case of VIMALA DEVI v. NATONAL INSURANCE COMPANY LIMITED reported in (2019)2 SCC 186 at paragraph 15 of the judgment, the Hon'ble Apex Court has observed as follows:
"15. At the outset, we may reiterate as has been consistently said by this Court in a series of cases that the Act is a beneficial piece of legislation enacted to give solace to the victims of the motor accident who suffer bodily injury or die untimely. The Act is designed in a manner, which relieves the victims from 13 ensuring strict compliance provided in law, which are otherwise applicable to the suits and other proceedings while prosecuting the claim petition filed under the Act for claiming compensation for the loss sustained by them in the accident."
14. In relation to provisions contained under the Employees State Insurance Act, being a beneficial legislation, Hon'ble Apex Court in the case of BOMBAY ANAND BHAVAN RESTAURANT v. DEPUTY DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION reported in (2009)9 SCC 61 at paragraph 20 of the judgment, held as follows:
"20. The Employees State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Employees State Insurance Act is a social security legislation and the cannons of interpreting a social legislation is different from the cannons of interpretation of taxation law. The courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so as to promote its objects."14
15. Hon'ble Apex Court in the case of BHAIYA PUNJALAL BHAGAWANDDIN v. DAVE BHAGAWATPRASAD PRABHUPRASAD reported in 1963 AIR 120; and in the case of SHRI PRAKASH CHAND AGARWAL AND OTHERS v. MESSRS. HINDUSTAN STEEL LTD. reported in (1970)2 SCC 806 has held that the discretionary power conferred upon the courts to enforce the rights of victims and their dependents and the intention of the Legislature is to be considered to ensure that substantial justice is not trumped by mere technicalities. In the case of BALAVANT SINGH (DEAD) V. JATDISH (2010)8 SCC 685 at paragraph 25 and 26 of the judgment held as follows:
"25. We may state that even if the term `sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of `reasonableness' as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient 15 cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."
16. In the case of MANIBEN DEVARAJ SHAH v. MUNICIPAL CORPORATION OF BRIHANMUMBAI (2012)5 SCC 157, at paragraph 23 and 24 of the judgment, it is observed thus:
"23. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
24. What colour the expression "sufficient cause"
would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. 16 If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."
17. Undoubtedly, in the present case the sole ground for declining relief to the claimant by the Tribunal is the delay in lodging the complaint. It is not in dispute that the claimants sustained grievous injuries on account of road traffic accident on 05th September, 2012. Medical records produced by the claimants would substantiate the fact regarding occurrence of accident and injuries sustained by them. The claimants have also shown sufficient cause for delay in lodging the complaint to the jurisdictional police as per Exhibit P1(a). It is not forthcoming from the hospital records with regard to forwarding intimation as Medico Legal case to the jurisdictional police by the hospital authorities. The Tribunal has sought for MLC Register extract from the Hospital to discern the truth as per Exhibits C1 and C2. Undisputably, no evidence has been adduced by the respondents to counter the occurrence of the accident as well as the injuries sustained by the claimants. In that view of the matter, I am of the considered view that the finding recorded by the Tribunal is contrary to records and same requires 17 interference in this appeal. It is also well-established principle that, the Tribunal, while considering the claim petitions should not make hyper-technical or trivial approach towards the manner in which the accident occurred so also the involvement of vehicles in question, unless the claimants fail to prove the same with cogent material on record. It is also well-established principle that, the claimants were to establish their case on the basis of preponderance of probability and the Tribunal cannot expect that the standard of proof beyond reasonable doubt could not have been applied. In this regard, I am, supported by the law declared by the Hon'ble Apex Court in the case of SUNITA AND OTHERS v. RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANOTHER reported in AIR 2019 SC 994. At paragraphs 20 to 24 of the judgment, the Hon'ble Supreme Court observed thus:
"20. We have no hesitation in observing that such a hyper- technical and trivial approach of the High Court cannot be sustained in a case for compensation under the Act, in connection with a motor vehicle accident resulting in the death of a family member. Recently, in Mangla Ram Vs. Oriental Insurance Company Limited and Ors., (to which one of us, Khanwilkar, J. was a party), this Court has restated the position as to the approach to be adopted in accident claim cases. In that case, the Court 18 was dealing with a case of an accident between a motorcycle and a jeep, where the Tribunal had relied upon the FIR and charge- sheet, as well as the accompanying statements of the complainant and witnesses, to opine that the police records confirmed the occurrence of an accident and also the identity of the offending jeep but the High Court had overturned that finding inter alia on the ground that the oral evidence supporting such a finding had been discarded by the Tribunal itself and that reliance solely on the document forming part of the police record was insufficient to arrive at such a finding. Disapproving that approach, this Court, after adverting to multitude of cases under the Act, noted as follows:
"22. The question is: Whether this approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in Bimla Devi noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. In paras 11-15, the Court observed thus:19
"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 post-mortem report vis-à-vis the averments made in a claim petition.
12. The deceased was a constable. Death took place near a police station. The post-mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of the constable had taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus-stand and near a police station. In such an event, the Court can presume that the police officers themselves should have taken possession of the dead body.
13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was Supra at footnote 2 absolutely no reason to falsely implicate Respondents 2 and 3. The claimant was not at the place 20 of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the first information report had been lodged in relation to an accident could not have been ignored.
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."
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. 21 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 v. Amir Chand7 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 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 22 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 Ammal, 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 negative 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) "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 23 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 no-fault 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 Fernandes, this Court examined similar situation where the evidence of claimant's 24 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 Datta, 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:
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.25
***
(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 non-examination 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."
It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly 26 bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.
21. In the present case, we find that the Tribunal had followed a just approach in the matter of appreciation of the evidence/materials on record. Whereas, the High Court adopted a strict interpretation of the evidence on the touchstone of proof beyond reasonable doubt to record an adverse finding against the appellants and to reverse the well considered judgment of the Tribunal in a cryptic manner.
22. Reverting to the factual matrix, the actual occurrence of the accident between the motorcycle driven by Sitaram bearing registration number RJ 25 SA 6923 coming from one side and a bus belonging to respondent No.1 (the Rajasthan State Road Transport Corporation) bearing registration number RJ-26/P.A. 0042 coming from the opposite direction, is duly proved. The Tribunal has relied upon the uncontroverted evidence of witnesses A.D.1 and A.D. 3, and the documents presented by them, especially FIR No. 247/2011 (Exh. 1) and charge-sheet (Exh.2) against one Banwari Lal Bairwa (respondent No.2), charging him with offences under Sections 279, 337 and 304A of the IPC and Sections 134/187 of the Act, to establish that on 28.10.2011 at around 7 A.M., Sitaram, along with pillion rider Rajulal Khateek, was riding on a motorcycle bearing number RJ 25 SA 6923 from village 27 Bapuee to Chaut ka Barwad for Daug, to his sister, when, near Mahapura tri- section, bus number RJ-26/P.A. 0042 belonging to respondent No.1 (the Rajasthan State Road Transport Corporation) coming from the opposite direction hit the motorcycle from the front, resulting in the death of Sitaram.
23. The Tribunal had justly accepted the appellants' contention that the respondents did not challenge the propriety of the said FIR No. 247/2011 (Exh. 1) and charge- sheet (Exh. 2) before any authority. The only defence raised by the respondents to this plea was that the said FIR No. 247/2011 was based on wrong facts and was filed in connivance between the appellants/complainants and the police, against which the respondents complained to the in- charge of the police station and the District Superintendent of Police but to no avail. Apart from this bald assertion, no evidence was produced by the respondents before the Tribunal to prove this point. The filing of the FIR was followed by the filing of the charge-sheet against respondent No.2 for offences under Sections 279, 337 and 304A of the IPC and Sections 134/187 of the Act, which, again, reinforces the allegations in the said FIR insofar as the occurrence of the accident was concerned and the role of respondent No.2 in causing such accident. Be that as it may, the High Court has not even made a mention, let alone record a finding, of any impropriety against FIR 247/2011 (Exh. 1) or charge-sheet (Exh. 2) or the conclusion reached by the Tribunal in that regard. Yet, the FIR and the Charge- sheet has been found to be deficient by the High Court. 28
24. Before the Tribunal, respondent No.1 has neither denied that respondent No.2 was in its employment at the time of the accident nor has it denied that respondent No.2 was driving the offending bus no. RJ-26/P.A. 0042 at the time of the accident. The Tribunal has also referred to the Post-mortem report (Exh.4) which establishes that Sitaram died due to shock arising from various fractures on his body, which, undoubtedly, were rendered due to his accident with the offending bus. All of the aforesaid evidence remained uncontroverted. While the Tribunal has accepted these depositions and the evidence presented in that regard, the High Court has, surprisingly, not even referred to it or even the numerous documents presented by the said witnesses as evidence, apart from a passing reference to FIR 247/2011 (Exh.1)."
18. It is also relevant to cite the judgment of the Division Bench of this Court in the case of PRIBHIDAS v. B.N. RENUKA reported in LAWS(KAR) 1982 6 18 wherein at paragraphs 10 to 12 of the judgment, this Court observed thus:
"10. It is not in dispute that the driver of the car bearing Registration No.MYQ 6769, which caused the accident, was charge-sheeted for rash and negligent driving and that he pleaded guilty before the Magistrate and that he was sentenced.
11. It is no doubt true that in the written statement there is an explanation offered by the owner that the driver was coerced by the police to confess 29 before the Court. But the driver discreetly desisted from entering the witness-box and offering himself for cross examination. He did not offer any explanation for his confession.
12. This Court has ruled in the case, Vinobabai v. KSRTC (1979) 1 Kant LJ 257 that when the driver admits his guilt before the Criminal Court and is convicted, it would establish prima facie that he was guilty of rash and negligent driving and we have pointed out above that the driver did not care to enter the witness-box and offer any explanation. The admission, therefore, becomes decision on the facts of the present case that the accident was the result of rash and negligent driving of the car in question by its driver. That is the conclusion arrived at by the Tribunal and we affirm it."
19. The principle laid down by the Division Bench is to be made applicable to the instant case. Further, it is necessary to observe that it is also not disputed by the Insurance Company that the rider of the offending vehicle was charge-sheeted and pleaded guilty before the competent criminal court and the said fact would establish that the rider of the offending vehicle was guilty of rash and negligent driving and the said aspect of the matter could not have been brushed aside by the Tribunal while answering issue No.1. That apart, Motor Vehicles Act being a 30 beneficial legislation, the victims of the road traffic accidents are to be awarded just compensation.
20. In the light of the discussion made above, in my considered opinion, the Tribunal has committed an error in dismissing claim petitions on the ground of delay in lodging the complaint which, admittedly, is not a sole basis or fact to disallow the claim petitions without appreciating the material on record in the right perspective taking into consideration the law declared by the this Court as well as Apex Court referred to above and therefore, the finding recorded by the Tribunal on issue No.1 in both the cases is required to be set aside and the claimants are entitled for just compensation as per Section 166 of the Motor Vehicles Act, 1988.
21. In the light of the discussion made above, the impugned judgment and award passed by the Tribunal is set aside and claim petitions are to be remanded to the Tribunal for fresh consideration in accordance with law for awarding just compensation to the claimants. Hence, the following:
ORDER
1. Appeals are allowed;31
2. Judgment and award dated 28th October, 2014 passed MVCs No.142 and 141 of 2013 on the file of the Principal Sr. Civil Judge and Motor Accident Claims Tribunal-X Tumkur, is set aside remanding the claim petitions to award compensation in accordance with law;
3. In view of the fact that the parties are represented before this Court, parties are directed to appear before the Tribunal on 06th December, 2021 without awaiting for fresh notice in this regard;
4. No order as to costs.
Sd/-
JUDGE lnn