Allahabad High Court
Uttar Pradesh State Road Transport ... vs Smt. Khalikun Nisha W/O Late Rais Ahmad & ... on 5 November, 2019
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 944 of 2010 Appellant :- Uttar Pradesh State Road Transport Corporation Thru M.D. Respondent :- Smt. Khalikun Nisha W/O Late Rais Ahmad & Ors. Counsel for Appellant :- J.B. Singh,Ambika Prasad Counsel for Respondent :- Brijesh Yadav "Vijay",Sanjai Tripathi,Sanjay Tripathi Hon'ble Jaspreet Singh,J.
Heard Sri Ambika Prasad, learned counsel for the appellant as well as Sri Brijesh Yadav, learned counsel for the respondents.
The instant appeal has been preferred under Section 173 (2) of the Motor Vehicles Act, 1988, being aggrieved against the judgment and award dated 03.03.2010 passed in M.A.C.P. No. 181 of 2009 whereby the tribunal below has awarded a sum of Rs. 3,47,500/- along with 6% per annum interest from the date of the award till the date of its actual payment.
The submission of the learned counsel for the appellant is that the Tribunal has not considered the fact that according to version of the claimant the accident took place at around 10:00 PM at Musafirkhana. It has been submitted that the distance between Musafirkhana and Sultanpur at least takes minimum 40 minutes to 1 hours whereas the bus in question had reached the Sultanpur Depot at around 09:30 PM and an entry to the aforesaid was also maintained in the log book which indicated that the bus had reached the Sultanpur Depot around 09:30 PM, thus, the factum of accident having taken place at Musafirkhana at 10:00 pm apparently is falsified.
The other submission of learned counsel for the appellant is that the Tribunal has erred in taking the age of the deceased as 50 years whereas there was no conclusive proof thereof rather the aforesaid age has been drawn from the postmortem report and accordingly the award has been made on the higher side.
The learned counsel for the respondents has urged that the appellant did not lead cogent evidence to disprove the factum of the accident. It has been submitted that there was variance in the testimony of the two witnesses which were examined on behalf of the appellant and no documentary evidence was brought on record to indicate that the bus had reached the Sultanpur Depot at around 09:30 PM as was stated by the said witnesses, however, even in their cross-examination they could not withstand the testimony which was made by them in the examination-in-chief. Moreover, in light of the fact that an eye-witness was examined as P.W. 2 who clearly narrated the occurrence coupled with the fact that the appellant did not even cross-examine the aforesaid witness on the aforesaid point left the testimony of the eye-witness un-rebutted. In view thereof, the Tribunal has rightly arrived at the conclusion that the accident was on account of rash and negligent driving of the alleged Bus No. UP 50 F 4390.
It has further been submitted that the appellant has not bought any evidence nor ever contradicted the testimony regarding the age of the deceased and from the material available on record the Tribunal has rightly arrived at a finding regarding the age of the deceased at 50 years and has also applied the appropriate multiplier of 13, accordingly, the same does not require any interference and the appeal deserves to be dismissed.
The Court has heard the learned counsel for the parties and also perused the record.
Before dealing with the submissions of the learned counsel for the parties, certain brief facts giving rise to the above appeal may be noted first:-
The respondents had instituted a Claim Petition bearing No. 181 of 2009 with the averment that on 13.03.2009 one Sri Rais Ahmad was returning home after closing the shop and while he was near the State Bank of India at Musafirkhana at around 10:00 PM, a bus bearing No. UP 50 F4390 coming from the side of Lucknow was being driven rashly and negligently and it hit Sri Rais Ahmad along with his fruit cart. In the aforesaid accident Sri Rais Ahmad received grievous inuries and he was taken to the Community Health Center where he was declared dead. A First Information Report was lodged and later at night the driver was apprehended and the vehicle was siezed by the police. The respondents indicated the age of the deceased as 41 years and with the aforesaid averment the Claim Petition was filed before the M.A.C.T./District Judge, Sultanpur.
The appellants who were the opposite parties contested the proceedings by filing a written statement and had taken a specific plea that the bus in question was apparently a new vehicle and no accident took place. It further took the defence that the bus in question had reached the Sultanpur Depot at 09:30 PM, however, there was no question of the accident having occurred at Musafirkhana at 10:00 PM. It was submitted that the alleged First Information Report was only to falsely immplicate the vehicle in question.
The Tribunal framed 3 issues. The parties lead their respective evidence and thereafter the Tribunal while dealing with issue no. 1 recorded a finding that the accident occurred on 13.03.2009 on account of rash and negligent driving of the driver of the bus bearing No. UP 50 F4390. While considering the issue no. 2 it returned a positive finding that the driver Sri Om Prakash Singh was possessed of a valid and effective driving license on the date of the said accident. However, while considering the compensation, the Tribunal awarded a sum of Rs. 3,47,500/- along with simple interest of 6 % per annum from the date of filing of the Claim Petition till the date of its recovery.
It is this award which has been assailed by the appellant on the ground raised and maintained above.
Upon considering the evidence which was brought on record by the appellant, it would indicate that it has examined two witnesses, the driver and the conductor of the bus in question. Between the two of them, there was a discrepancy in so far as the time stated by them regarding leaving Lucknow. The driver had submitted in his evidence that he had left Lucknow at 06:00 PM whereas the conductor had stated that bus left at 06:30 PM. Apart from the fact, the driver himself submitted that they had stopped on the way at Haidergarh for taking dinner. It was also stated by the driver that it usually takes three and a half hours to reach Sultanpur. Considering the aforesaid and the fact that no documentary evidence was brought on record to indicate that the alleged bus had reached the Sultanpur Depot at 09:30 PM. It is quite clear that the bus could not have reached the Sultanpur Depot at 09:30 PM. Considering the fact that it left Lucknow at 06:00 PM, usually it takes three and a half hours coupled with the fact that the bus had also stopped at Haidergarh for taking dinner which is a station prior to Musafirkhana where the alleged accident is said to have taken place.
Another redeeming feature of the aforesaid case is that the claimant had examined Sri Amar Ullah as P.W. 2 who was an eye-witness. He has given details of the occurrence and surprisingly while he was cross-examined yet no question were asked regarding the occurrence to test his veracity in so far as the accident is concerned. He has clearly stated that the accident has occurred in his presence at around 10:00 PM. In the aforesaid circumstances, it cannot be said that the view taken by the Tribunal is erroneous, inasmuch as, a Claim Petition is to be decided on the basis of per-ponderence on probabilities and the standard of proof is not as if a person has to prove a fact beyond a reasonable doubt.
The Hon'ble Apex Court in the case of Sunita & Ors. vs. Rajasthan State Road Transport Corporation & Anr., in Civil Appeal No.1665 of 2019, reported in 2019 SCC Online SC 195 wherein after considering the earlier decision of Mangla Ram vs. Oriental Insurance Company Limited & Ors., (2018) 5 SCC 656, the Hon'ble Apex Court 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 Chand 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 Ammal1, 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) "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 Fernandes, 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 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: (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 no nexamination 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."
Considering the above, this Court has no hesitation to hold that the finding returned by the Tribunal regarding rash and negligent driving coupled with the fact that the accident occurred which led to the death of Sri Rais Ahmad stood proved by cogent evidence and no fault can be found in the finding of the Tribunal in this respect.
Coming to the other argument, regarding the multiplier adopted by the Tribunal in the case of the deceased. The claimants had stated that Sri Rais Ahmad was about 41 years of age, however, from the postmortem report his age was indicated to be around 50 years. Considering that no contrary evidence was led by the appellant before the Tribunal and the Tribunal after taking an overall view coupled with the evidences on record has drawn a safe inference regarding the age of the deceased as 50 years and the same cannot be interfered and in the facts and circumstances of the case its finding is supported by the material on record and the same cannot be discarded or can be termed as perverse.
In view of the above, the second submission of the learned counsel for the appellant also fails.
Considering the submissions of learned counsel for the parties and also from the perusal of the judgment dated 03.03.2010, this Court is satisfied that the award passed by the M.A.C.T./District Judge, Sultanpur in C.P. No. 181 of 2009 does not suffer from any perversity nor does it require any interference of this Court.
Accordingly, the award dated 03.03.2010 is affirmed.
The appeal is devoid of merit and is accordingly dismissed.
The amount deposited before this Court shall be released and be remitted to the Tribunal concerned to be released in favour of the claimants in accordance with the award, the record shall also be remitted to the Tribunal itself within a period of two weeks from today.
With the above, the appeal stands dismissed. There shall be no order as to costs.
Order Date :- 5.11.2019 Asheesh