Allahabad High Court
Raj Kumar Hans And Ors. vs Saroj And Ors. on 14 July, 2021
Equivalent citations: AIRONLINE 2021 ALL 1489
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 20 Case :- FIRST APPEAL FROM ORDER No. - 737 of 2013 Appellant :- Raj Kumar Hans And Ors. Respondent :- Saroj And Ors. Counsel for Appellant :- Alok Kr. Misra Counsel for Respondent :- Asit Srivastava Hon'ble Jaspreet Singh,J.
Heard learned counsel for the appellants as well as Sri Asit Srivastava, learned counsel for the New India Insurance Company Ltd.-respondent no. 3, however, despite the service being complete on the respondent nos. 1 and 2 yet none has put in appearance on their behalf.
The instant appeal has been preferred against the award dated 30.04.2013 passed by the M.A.C.T./Additional District Judge, Court No. 1, Lakhimpur Kheri whereby the claim petition of the appellants bearing No. 47 of 2012 has been dismissed by means of the aforesaid award.
The submission of learned counsel for the appellant is that despite the three witnesses having been examined yet the Tribunal has erred in not appreciating the evidence which clearly established the negligence on the part of the offending driver i.e. respondent no. 1. It is further submitted that the claimant-witness nos. 2 and 3 were also examined who also categorically stated the involvement of the vehicle as well as the driver i.e. the respondent no. 1 yet on technical grounds the Claim Petition has been rejected which is contrary to principles as laid down by the Apex Court and ought to have been adhered by the Tribunal while deciding the Claim Petition.
The learned counsel for the respondent no. 3-Insurance Company on the other hand has submitted that the Tribunal was justified in rejecting the Claim Petition, inasmuch as, the persons who were brought on record as witnesses, none of the three witnesses were the eye-witness. They were chance witness who were said to be present at the site and in absence of clear and cogent evidence to indicate that the said witnesses had seen the incident, coupled with the fact that the claimant himself at the initial stage did not mention the number of the vehicle and even the FIR was lodged with delay, hence, neither the negligence nor involvement of the vehicle was proved, thus, under these circumstances, the Tribunal has rightly rejected the claim petition.
Upon hearing the learned counsel for the parties and from the perusal of the impugned judgment, certain brief facts relevant for the adjudication of the instant appeal are being noticed first:-
The Claim Petition No. 47 of 2012 was preferred by the appellant no. 1 namely Raj Kumar Hans wherein he stated that on 26.10.2011, the appellant no. 1 was returning home after visiting Sri Rishi Raj. It is also stated that he was walking on the correct side of the road, however, the motorcycle bearing No. UP 31 N 3781 TVS Star City was being driven rashly and negligently by the respondent no. 1 Sri Saroj who, from behind, hit the appellant no. 1.
The appellant no. 1 received grievous injuries and also fell unconsciousHe was admitted to Navjeewan Nursing Home in Lakhimpur Kheri where considering his condition he was referred to the higher center at King George's Medical University at Lucknow where he was under treatment.
Upon being discharged from the hospital, the appellant no. 1 lodged the First Information Report which was registered as Case No. 1244 of 2011. It was also pleaded that the appellant was 22 years old and he was earning a sum of Rs. 15,000/- per month on the basis of private tutions. It is in the aforesaid circumstances, coupled with the fact that the appellant no. 1 had suffered 45 % disability had claimed a sum of Rs. 11,50,000/- as compensation from the respondent nos 2 and 3 both jointly and severally.
Upon notices being issued by the Tribunal, the respondent nos. 1 and 2 filed their written statement wherein they denied the accident. It was also stated that Sri Saroj did have a valid and subsisting driving licence. It was also stated that he was driving a motorcycle bearing No. UP-31-N-3781 with due care and caution and the alleged accident as stated by the claimant-appellant no. 1 has been concocted merely for the purposes of claiming compensation whereas no such accident took place.
Similarly a written statement was filed by the owner of the vehicle with similar pleas and he too denied the accident and involvement of the motor cycle in question apart from the aforesaid fact he had also taken an additional plea that the vehicle in question was insured with the respondent no. 3 for the period 13.05.2011 to 12.05.2012 and if at all any liability arises, the same would be met by the Insurance Company.
The Insurance Company also filed its written statement denying its liability. On the basis of their pleadings and the documents, the Tribunal framed four issues. The claimant produced three witnesses and also filed documentary evidence. None appeared as witness on behalf of either of the respondents.
The Tribunal primarily dealt with issue no. 1 which was to the effect whether on 26.10.2011, the alleged accident took place on account of the rash and negligent driving by the respondent no. 1 caused by the offending vehicle UP-31-N-3781.
The Tribunal after considering the evidence of three claimant-witnesses held that no satisfactory explanation was given by the claimant to lodge the First Information Report with delay and also that none of the three witnesses had actually seen the occurrence of the accident, thus, the involvement of the vehicle in question was doubtful. In the aforesaid circumstances, the issue no. 1 was decided in the negative. It also recorded a finding that the vehicle was duly insured and the driver did possess a valid and subsisting driving license, however, since the factum of the accident, the negligence of the driver of the offending motorcycle and its involvement was found doubtful, it did not proceed any further and did not decide the issue no. 4 which related to the compensation payable to the claimant and with the aforesaid findings dismissed the claim petition by means of the Award dated 30.04.2013 which is impugned in the above petition.
At the very outset, it will be relevant to notice the decision of the 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.
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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.
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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) "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."
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."
(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.
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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."
(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) If the principles as laid down by the Apex Court in the aforesaid decisions is applied to the facts of the instant case, it would be found that the Tribunal has adopted a hyper-technical approach. The foundational facts as stated by the claimant/appellant no. 1 in support of his claim petition and also in his deposition state that on 26.10.2011 in the evening while he was returning from the house of Rishi Raj and was walking on the correct side of the road, the offending vehicle hit him from behind and the offending vehicle was being driven by Sri Saroj. He also categorically pleaded that he fell unconscious and it is only when he regained conscience , he was informed that he was first admitted in Navjeewan Nursing Home at Lakhimpur Kheri and thereafter was referred to King George's Medical University at Lucknow. Upon being discharged from the hospital, thereafter, he had lodged the First Information Report. The other two claimant-witness No. 2 namely Rustam Lal Pyare deposed that he was walking ahead of the claimant. He further stated that the respondent no. 1 was riding the motorcycle bearing No. UP-31-N-3781 and hit the appellant no. 1 from behind and he sustained injuries. Upon the aforesaid, he reached the site in minutes and found the offending motor cycle and the appellant no. 1 on the road and that appellant no. 1 sustained grievous injuries and he was taken to the hospital.
The third claimant-witness Sri Rishi Raj who is the person whom the appellant had gone to visit and he also deposed that after the appellant no. 1 has left his house, he also went out after 10 minutes and he also saw at the place of occurrence that the offending vehicle was lying on the road and so also the appellant no. 1 who had sustained grievous injuries. The claimant-witness nos. 2 to 3 had clearly deposed that the accident was caused by the rash and negligent driving of the vehicle bearing No. UP-31- N-3781 by the respondent no. 1.
In view of the aforesaid statement, upon their cross-examination by the Insurance Company, the Tribunal has inferred that none of the three witnesses had actually seen the accident. It has also drawn the inference that in case if the aforesaid claimant-witnesses nos. 2 and 3 had seen the accident and the fact that had the offending vehicle as well as the driver were taken into custody then why the First Information Report was not lodged on the same day.
Primarily, on finding discrepancies in the statement recorded as well as during the cross examination the Tribunal found that the factum of the accident as well as the involvement of the vehicle in question was not clearly proved, hence, rejected the claim petition.
Considering the material available on record, this Court finds that the Tribunal has erred in its approach in evaluating the evidence available on record. It has been a clear case of the claimant that the claimant sustained injuries on account of the accident which occurred on 26.10.2011. He was admitted in the hospital and only after he was discharged that he had lodged the First Information Report. The claimant has also brought on record the copy of the First Information Report. He has also brought on record the documents relating to the offending driver being charge-sheeted and being prosecuted in the same accident. A number of documents, relating his initial treatment at Navjeewan Hospital at Lakhimpur Kheri and the documents relating to his treatment at K.G.M.U. has been brought on record, however, none of the aforesaid documents have been considered by the Tribunal in its order. The claimant has also filed a disability certificate indicating that he had suffered 45% disability certificate which has also not been noticed by the Tribunal rather there is no mention, consideration of the said documents in the judgment and why they have been discarded.
As noticed by the Apex Court in the cases relating to motor accidents it is the claimant who has to prove the case on the basis of pre-ponderence of probability. The foundational facts regarding the accident, the treatment, the First Information Report as well as the charge sheet which had been brought on record have not been considered in the correct perspective by the Tribunal. Once the aforesaid foundational facts have been connected with the evidence and considering the fact that neither the owner nor the driver led any evidence to contradict the statement of the claimant and his witnesses and nothing adverse having been elicited in their testimony, thus, the Tribunal has erred in appreciating the evidence on record. It ignored material evidence and has recorded findings which are based on surmises and against the weight of the material on record.
In view of the aforesaid as well as the law laid down by the Apex Court as noted above, this Court is of the considered opinion that the Award dated 02.05.2013 cannot be sustained and is accordingly set aside. Since the documents and the evidence has not been properly appreciated in the correct perspective so also for the reasons that the issue no. 4 relating to the payment of compensation has not been decided, this Court deems it appropriate that the matter be remanded to the M.A.C.T. concerned for its decision afresh in light of the observations made hereinabove.
It is expected that the aforesaid matter shall be decided after hearing the parties concerned within a period of 6 months from the date a certified copy of this order is placed before the Tribunal concerned.
The appeal stands allowed. In the aforesaid facts and circumstances, there shall be no order as to costs.
The record of the case concerned be remitted to the Tribunal concerned within a period of 10 days from today.
(Jaspreet Singh, J.) Order Date :- 14.7.2021 Asheesh