Rekha Kanwar vs Devichand on 4 February, 2025

[Cites 8, Cited by 0]

Rajasthan High Court - Jodhpur

Rekha Kanwar vs Devichand on 4 February, 2025

1. The present appeal has been preferred against the judgment and award dated 21.07.2023 passed by Motor Accident Claim Tribunal, Sirohi in MAC Case No.53/2016 (C.I.S No.53/2016) whereby the claim petition as preferred on behalf of the claimants stood rejected.

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2. The claim petition was rejected by the learned Tribunal while deciding issue No.1 against the claimants. Issue No.1 read as under:

"(1) आया दिनां क 16.05.2015 को दिन में 4 बजे मालनु गां व से पहले मार्ग पर में अमीरस होटल से मार्ग पर अप्रार्थी संख्या 1 चालक मालिक स्वयं के लाभार्थ एवं हितार्थ तथा अप्रार्थी संख्या 2 की बीमित अवधि में वाहन जीप संख्या RJ-22-

TA-1002 को तेजगति, लापरवाही एवं उपेक्षा से चलाकर मोटर साईकिल संख्या RJ-24-SG-6386 के टक्कर मारी, जिससे मोटर साईकिल चालक जितेन्द्रसिंह, की मृत्यु हुई?"

3. The learned Tribunal, while rejecting the claim petition, recorded a specific finding that the alleged eye-witness Arjun Singh (AW.2) appeared as a witness in the criminal proceedings also (Criminal Case No.408/2015) pertaining to the same accident and the statements of the said witness as recorded by the Criminal Court were got exhibited as Exhibit A-4 in the present petition by the Insurance Company. Before the Criminal Court, the aforesaid witness specifically deposed that he was neither aware how the accident occurred nor had knowledge about the driver or details of the vehicle. Therein, he specifically denied having any information about the said two facts whereas before the learned Tribunal, he deposed that he not only knew the driver of the vehicle but also noted the number of the vehicle before he got unconscious.

4. Arjun Singh (alleged eye witness), in his statement before the learned Tribunal deposed as under:

"cksysjks thi la[;k RJ-22-TA-1002 ds pkyd nsohpan }kjk ?kfVr dh xbZ FkhA eSa nq?kZVuk ls iwoZ ls gh nsohpan dks tkurk Fkk tks djhc 1 o'kZ iwoZ lsA eSa viuh cgu ds ;gka tkrk Fkk bl otg ls pkeqUMsjh esa nsohpan dh nqdku ij vkrk tkrk FkkA ysfdu nsohpan eq>s ugha tkurk (Downloaded on 10/02/2025 at 09:25:21 PM) [2024:RJ-JD:45123] (3 of 13) [CMA-19/2024] FkkA eSaus nq?kZVuk gksus ds i"pkr~ cksysjks thi ds uEcj ns[ks FksA nq?kZVuk gksrs gh eSa fxj x;k FkkA"

Whereas, in statements recorded on 15.10.2019 in Criminal Original Case No.408/2015 before the Judicial Magistrate, Bali he deposed as under:

"gekjh eksVjlkbZfdy ds uEcj vkjts 24 ,lth rd ;kn gS vkxs eksVjlkbZfdy ds uEcj vkt eq>s ;kn ugha gSA ge ekyuw eksM ij igqaps rc lkeus ls ,d cksysjks thi rst xfr o ykijokgh ls vkbZ vkSj gekjh eksVjlkbZfdy ds VDdj ekjhA VDdj yxrs gh ge uhps fxj x, o csgks"k gks x;kA ,DlhMs.V dSls gqvk eq>s irk ughaA fdldh xyrh ls gqvk eq>s irk ughA pkyd dk uke o thi ds uacj eq>s irk ughaA"

5. The learned Tribunal therefore concluded that the alleged eye- witness AW-2 Arjun Singh made stark contradictory statements before both the Courts. The learned Tribunal concluded its finding with the following reasoning:

"gekjk foospu gS fd xokg us mDr vkijkf/kd izdj.k esa vius c;ku lksp le> dj lgh fy[kkuk Lohdkj fd;k gSA bl rjg Lo;a xokg vtqZuflag us flfoy U;k;k/kh"k ,oa U;kf;d eftLVªsV ckyh ds le{k vkijkf/kd izdj.k esa okLrfod dFku djrs gq, vius c;ku izn"kZ&1 ls myV dFku djrs gq, ,DlhMsUV dSls gksus] fdldh xyrh ls gksus rFkk pkyd dk uke o thi ds uEcj irk ugha gksus ds dFku fd;s gSA ;fn okLro esa mlds }kjk ?kVuk ns[kuk rFkk og Lo;a Hkh mDr nq?kZVuk esa pksVxzLr gqvk gS] og vo"; gh vius l"kiFk c;ku izn"kZ ,&1 ds rgr okgu pkyd dk uke o okgu uEcj dk mYys[k djrk fo"ks'kr;k tcfd xokg ,0M0&2 vtqZuflag us vius vf/kdj.k ds le{k l"kiFk c;ku esa dFku fd;k gS ^^eSaus nq?kZVuk gksus ds i"pkr~ cksysjks thi ds uEcj ns[ks FksA mu uEcjksa dks eSaus dkxt ij uksV ugha fd;s Fks cfYd ;kn j[ks FksA** bl rjg xokg ,0M0&2 vtqZuflag ds vyx&vyx txg fn;s x;s c;kuksa esa fojks/kkHkkl gksus ls rF; fHkUurk gSA blds vfrfjDr i=koyh dk voyksdu djus ij xokg ,0M0&2 vtqZuflag us iqfyl c;ku izn"kZ&1 esa mDr nq?kZVuk dks eksrhflag iq= (Downloaded on 10/02/2025 at 09:25:21 PM) [2024:RJ-JD:45123] (4 of 13) [CMA-19/2024] eksgCcrflag }kjk Hkh ns[ks tkus dk dFku fd;k gS rFkk mDr xokg us bl vf/kdj.k esa ftjg esa dFku fd;k fd og eksrhflag iq= eksgCcrflag tkfr jktiqr fuoklh pkeq.Msjh dks ugha tkurk gSA ;fn vtqZuflag ds bl vf/kdj.k esa gq, c;ku dks lgh ekuk tk;s rks eksrhflag }kjk nq?kZVuk gksrs ugha ns[kh gSA tcfd i=koyh ij ekStwn flfoy U;k;k/kh"k ,oa U;kf;d eftLVªsV ckyh ds U;k;ky; esa gq, eksrhflag ds c;ku esa xokg us mDr nq?kZVuk cksysjks ds pkyd }kjk ?kfVr djus dk dFku fd;k gS] ysfdu cksysjks ds uEcj ,oa okgu ds pkyd ds uke dh vufHkKrk tkfgj dhA bl rgj mDr nq?kZVuk ds lEcU/k esa p"enhn xokgku ds c;ku esa fojks/kkHkkl gksus ls rF; fHkUurk jgh gSA blds vfrfjDr Mwaxjflag tks mDr nq?kZVuk dk izFke bZÙkyk fjiksVZ izLrqrdrkZ Fkk] tks bl nq?kZVuk ds lEcU/k esa lcls egRoiw.kZ xokg Fkk ftlus mDr nq?kZVuk dh izFke bZÙkyk fjiksVZ esa eksVj lkbZfdy dks vlarqfyr gksdj Mhi esa fxjus dk dFku fd;k gS rFkk ckn esa iqfyl c;ku esa gq, c;kuksa o uD"kk ekSdk esa okgu cksysjks ds pkyd dh xyrh ,ao ykijokgh crk;k gS tks fdl vk/kkj ij crk;k gS] ds lEcU/k esa dksbZ rF; i=koyh ij ekStwn ugha gS] ysfdu izkFkhZx.k us mDr xokg Mwaxjflag dks bl vf/kdj.k esa is"k dj mlds c;ku ys[kc) ugha djok;s gSA ftlls ;g izekf.kr gks lds fd okLro esa mDr nq?kZVuk ?kfVr gqbZ Fkh ftlesa e`rd ftrsUnzflag o vtqZuflag pksVxzLr gqbZ gks vkSj ftrsUnzflag dh ?kVukLFky ij e`R;q gqbZ gksA bl izdkj xokgku izkFkhZ vtqZuflag ds bl vf/kdj.k esa gq, c;ku ds rF;ksa esa fHkUurk jgh gS] rFkk mDr xokgu }kjk vius c;kuksa esa fdl cksysjks thi la[;k RJ-22-TA-1002 ls eksVj lkbZfdy dks lkeus ls VDdj ekjuk ekSf[kd crk;k gS] ftldk leFkZu i=koyh ij ekStwn nLrkosth lk{; ls ugha gksrk gSA vr% ;g izekf.kr gksrk gS fd izkFkhZ.k us vf/kdj.k ds le{k ek= Dyse ysus gsrq tkucw>dj okgu cksysjks thi la[;k RJ-22-TA-1002 dks fyIr djrs gq, eksVj lkbZfdy dks VDdj ekjus ds lEcU/k esa l"kiFk dFku fd;s gS tks drSbZ ekuus ;ksX; ugha gSA bl rjg i=koyh ij miyC/k mijksDr lk{; ,oa nLrkostks ds foLr`r foospu ls ;g rF; rks fufoZokfnr gS fd fnukad 16-05-2015 dks e`rd ftrsUnzflag pksVxzLr gksus e`R;q vo"; gqbZ Fkh] ysfdu izkFkhZx.k bl rF; dks viuh lk{; ls fl) djus esa vlQy jgs gS fd mDr nq?kZVuk esa cksysjks thi la[;k RJ-22-TA-1002 fyIr jgh gks rFkk mDr okgu ds pkyd vizkFkhZ la[;k ,d dh mis{kk ;k ykijokgh gksA ;g izdj.k /kkjk (Downloaded on 10/02/2025 at 09:25:21 PM) [2024:RJ-JD:45123] (5 of 13) [CMA-19/2024] 166 ds varxZr is"k fd;k x;k gS ftlesa ek= okgu dh fyIrrk fl) ugha djuh gS vfirq okgu ds pkyd dh ykijokgh Hkh fl) djuh gksrh gSA izkFkhZx.k dh vksj ls tks nLrkost is"k fd, x, gS ,oa muds leFkZu esa tks lk{; is"k dh xbZ gS] mldh iqf'V i=koyh ij miyC/k nLrkostksa ls ugha gksrh gSA i=koyh ij ekStwn lk{; lkexzh ls mDr cksysjks thi la[;k RJ- 22-TA-1002 dh fyIrrk o mlds pkyd dh ykijokgh ls pykdj nq?kZVuk dkfjr djuk izekf.kr ugha gksrk gSA izkFkhZx.k dh vksj ls ek= {kfriwfrZ jkf"k izkIr djus ds fy, xyr :i ls cksysjks thi la[;k RJ- 22-TA-1002 dks lafyir dj Dyse izkFkZuk i= izLrqr fd;k gSA vr% mijksDr leLr foospu ls bu fook|dks dk fu.kZ; izkFkhZx.k ds foL) ,oa vizkFkhZx.k ds i{k esa fd;k tkrk gSA"

6. The learned Tribunal further took into consideration the fact that the FIR was lodged by one Dungar Singh and as per his version in the FIR, the accident occurred due to the motorcycle having slipped.

7. In view of the overall facts and also the site plan, the learned Tribunal specifically observed that the vehicle in question that is Bolero Jeep RJ-22-TA-1002 was not involved in the accident and it was implicated subsequently during the police investigation. It therefore recorded a specific finding that the negligence of the driver of the vehicle in question was not proved on record and hence, proceeded on to dismiss the claim petition.

8. Learned counsel for the appellant submitted that the evidence of Arjun Singh (AW.2) remained uncontroverted and hence, the learned Tribunal ought to have relied upon the same. He submitted that the learned Tribunal should have taken a holistic approach while considering the statements made by the eye witness of the accident. Learned counsel placed reliance on Bimla Devi & Ors. Vs. Himachal Road Transport Corpn. & Ors.; (Downloaded on 10/02/2025 at 09:25:21 PM) [2024:RJ-JD:45123] (6 of 13) [CMA-19/2024] 2009 (13) SCC 530 wherein it was observed by the Hon'ble Apex Court that the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. The Hon'ble Apex Court observed as under:

"18. Some discrepancies in the evidences 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 burden of proof in terms of the provisions of Section 106 of the Indian Evidence Act 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 the respondent Nos.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."

9. Learned Counsel further placed reliance on Parmeshwari Vs. Amir Chand and Ors.; AIR 2011 SC 1504 wherein it was held that in a road accident claim, the strict principles of proof as in a criminal case are not attracted.

Counsel therefore submitted that in claim cases the learned Tribunal must take a holistic approach while determining the compensation to the victim and must not decide solely on the basis of documents forming a part of the record. (Downloaded on 10/02/2025 at 09:25:21 PM) [2024:RJ-JD:45123] (7 of 13) [CMA-19/2024]

10. Heard learned counsel for the appellant and perused the material available on record.

11. The only issue which arise for consideration in the present appeal is whether the statements of the alleged eye witness Arjun Singh (AW-2) could have been relied upon by the learned Tribunal and whether the learned Tribunal erred while discarding the evidence of the said witness?

12. What is evident on record is that the alleged eye witness Arjun Singh appeared as a witness even in the criminal proceedings as registered and initiated against the driver of the vehicle qua the accident in question. The statements of the said witness as recorded in the criminal proceedings have been got exhibited in the present matter by the Insurance Company as Exhibit A-4. In the criminal proceedings, Arjun Singh specifically deposed that he was not aware as to how the accident occurred and further as to who was negligent for the accident. Therein, he specifically deposed that he was neither aware of the name of the driver nor the number of the jeep in question.

13. It is further relevant to note that before the Criminal Court the witness was even cross-examined qua the statements made by him during Police Investigation and he therein deposed that the said statements were not given by him to the Police Authorities.

14. Furthermore, before the learned Tribunal when the witness was cross-examined qua the statements given by him in the criminal proceedings (Exhibit A-4), he specifically deposed as under:

"izn"kZ&4 dk G ls H c;ku ^^pkyd uke o thi ds uacj ;kn ugha gksuk fy[kk;k Fkk^^ ;g ckr eSaus lgh fy[kkbZ FkhA"

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[2024:RJ-JD:45123] (8 of 13) [CMA-19/2024] Interestingly, in the very next sentence, he deposed that the statements as made in Exhibit A-4 are wrong and the statements made before the Tribunal are correct. The said witness has even gone to the extent that his statements before the Criminal Court have been wrongly recorded and not as per the statements he deposed.

15. In the specific opinion of this Court and in view of the above facts, the alleged eye witness Arjun Singh could not have been termed to be a reliable witness. The stark contradictions in his statements clearly prove that he is not a 'trustworthy witness' and the learned Tribunal rightly discarded his evidence. In terms of Section 18 of the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as the 'BSA,2023') the statements made by the said witness would clearly amount to 'admissions' and the said admissions made by the alleged eye witness before a Criminal Court have specifically been proved against the claimants by the Insurance Company in terms of Section 19 of the BSA 2023.

16. So far as the effect of the statements made by a witness before a Criminal Court, on the proceedings before a Civil Court is concerned, as per Section 79 of the BSA 2023, the document Exhibit A-4 has to be presumed to be genuine. The document Exhibit A-4 i.e. the evidence given by the witness in a judicial proceeding, recorded in accordance with law and signed by a Judge has to be presumed to be genuine. Furthermore, in the event that the said witness has even been cross-examined on the document Exhibit A-4 i.e. the previous statements made by him in a judicial proceeding, it becomes even more logical to discard the evidence of the said witness.

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17. In view of the above facts, this Court is of the clear opinion that the learned Tribunal rightly discarded the evidence of the alleged eye witness Arjun Singh and hence rightly concluded that it was not proved on record that the vehicle in question was involved in the accident.

18. The conclusion that the vehicle in question was falsely implicated subsequently strengthens further more from the fact that in the FIR as lodged qua the accident in question, the cause of accident was reported to be the skidding of the motorcycle.

19. The learned Tribunal rightly observed that it was a clear case of fake involvement of the vehicle in question as except the evidence of AW-2 Arjun Singh, there is no other evidence available on record to prove the said fact.

20. So far as the judgments relied upon by counsel for the claimants are concerned, there is no dispute regarding the settled position of law that a finding of a Criminal Court is not binding on the Civil Court. But then the present is not a case with regard to the finding of any Court.

The present one is a matter of specific and stark contradictions in the statements of a witness who appeared as a witness and deposed before both the Courts i.e. the Civil and Criminal Court qua the same accident. The said witness on the face of it made total contradictory statements before both the Courts. Further the witness has been cross-examined on his earlier statements made before the Criminal Court to prove that he had earlier admitted that he was not aware of any of the particulars i.e. as to how the accident occurred, who was the driver of the vehicle in question and what was the registration number of the vehicle in question. The said admission of the witness been proved on record, his total (Downloaded on 10/02/2025 at 09:25:21 PM) [2024:RJ-JD:45123] (10 of 13) [CMA-19/2024] contradictory statements before a Civil Court could not have been relied upon.

21. In Oriental Insurance Co. Ltd. Vs. Kamla and Others ; FAO No. 55 of 2013 (decided on 04.03.2016) the Punjab and Haryana High Court dealt with a similar situation wherein the alleged eye-witnesses who deposed before the Civil Court/Tribunal regarding the accident, turned hostile before the Criminal Court so that the accused driver is not put to any harm and thus, cleverly the insurer of the offending vehicle was made to be held liable to pay the compensation. In the said facts, while allowing the appeal as preferred by the Insurance Company, the Court observed as Under:-

"The counsel for the claimants has no answer to the above submissions made on behalf of the Insurance Company. After going through the records, I am convinced that in this case, the claimants successfully misled the Tribunal which recorded the finding that the accident was caused on account of rash and negligent driving of the offending motorcycle by its driver, Sh. Parveen. In-fact, the deceased slipped/skidded from the motorcycle and it is the consistent stand of the relatives that there is no criminal intent. However, after two days, when the patient died, the theory of involvement of the offending vehicle being driven by Sh. Parveen was coined and the same has been proved before the Tribunal.

However, when the case came up before the Criminal Court, the same very eye witness turned hostile so that the accused driver is not put to any harm and thus cleverly the insurer of the offending vehicle has been made to be held liable to pay the compensation on account of death of Sh. Jagdish in the instant case.

There is a massive increase in such like cases of fraud in recent times as the vehicular population has increased manifold. The High Court in its supervisory role has the onerous duty to cleanse the lower Courts of such fraudulent acts. As a consequence, the appeal filed by the Insurance Company bearing No. 55 of 2013 is allowed. The claim petition filed by the claimants is dismissed. The claimants respondents shall be liable to refund the amount already received by (Downloaded on 10/02/2025 at 09:25:21 PM) [2024:RJ-JD:45123] (11 of 13) [CMA-19/2024] them against surety alongwith interest @ 9.5% per annum from the date of such disbursal to the claimants till its refund."

22. The above view of Punjab and Haryana High Court was affirmed by Hon'ble the Apex Court in SLP © No.026487- 026488/2016 (decided on 29.08.2016).

23. Dealing with almost similar facts in United India Insurance Company Limited Vs. Kamla Devi and Ors; F.A.F.O. No.1810 of 2006 (decided on 30.08.2010), the Punjab and Haryana High Court while reiterating the settled position of law with regard to the veracity and reliability of statements deposed by the witness before the Criminal Court and Civil Court observed as under:-

"4. It should still have been possible for the Tribunal to take a decision uninfluenced by any decision that may have come before the criminal Court. The several decisions which have come about on this issue are to the effect that a judgment in a criminal Court is not binding on the Tribunal; the non-filing of a FIR is not material; even the fact of involvement of the vehicle as found by the criminal Court is not binding. While the Tribunal is competent to assess the evidence which is brought before it and take an independent decision, then the point that has to be seen is whether there was any evidence worth its name before the Tribunal to come sic to a finding that the particular vehicle was involved in the accident. It can be either that the version of Sitar Mohd. cannot be relied for he has contradicted himself wholesale with the version given before the criminal Court or looked for other evidence which was placed before the Court. Alternatively if any explanation had been given by the witness as to why he deposed falsehood before the criminal Court, even such an explanation could have been accepted to enter a finding that the accident took place only involving the particular insured's vehicle. In this case, no explanation has been given by the witness as to why he stated before the criminal Court that he did not know which vehicle was involved in the accident. He would, on the other hand, defy that he ever made any such statement before the criminal Court, necessitating the statement made before the criminal Court to be exhibited for contradiction before the Tribunal. It must be (Downloaded on 10/02/2025 at 09:25:21 PM) [2024:RJ-JD:45123] (12 of 13) [CMA-19/2024] remembered a statement in criminal Court case by a witness is also on oath. If he was uttering falsehood, he was liable for perjury. If there was contradiction between the version elicited before the Tribunal to the statement made before the criminal Court then such a witness will be unworthy of acceptance. The Tribunal could have simply rejected the whole evidence. If it was going to pick out one line from chief examination to say that the insured's vehicle was involved in the accident, the Tribunal was doing something which is not a judicial function but a travesty of justice.

5. The decision rendered by the Tribunal,under such a circumstance, relying sic on an untrustworthy witness cannot stand judicial scrutiny before this Court. The Learned Counsel appearing for the claimant would contend with vehemence that the witnesses do give different statements in different Courts and particularly in criminal Court to help the accused to secure an acquittal. It has been the bane in our country that the truth is ever a casualty in Courts. It is not a matter of pride that India records the lowest percentage of conviction which is as low as 8%. If truth is a casualty for Court, untruth cannot lend a premium to a claimant's cause as well. If the claimant must rely such an untrustworthy witness, they have to fail by such evidence. We have come through situations where there have been instances of difficulty of proving the involvement of the particular vehicle. Insurance Companies are themselves not institutions of charity. They are run on public money.

6....

Culpability must be inferred from the circumstances where it is fairly reasonable. It is precisely the issue here. If there was ever a speck of evidence that the vehicle had been involved in the accident, it could have supported the award of the Tribunal. The case suffers from a whole lack of evidence. The award hinges on the most untrustworthy evidence of the person whose version is suspect. It is too fragile for this Court to make an affirmation. The award of the Tribunal is set aside and the appeal by the Insurance Company is, under the circumstances, allowed."

24. In view of the above settled position of law, the above observations and overall analysis, this Court is of the opinion that the learned Tribunal rightly decided the issues in the present claim petition on basis of the evidence as led by the parties and has (Downloaded on 10/02/2025 at 09:25:21 PM) [2024:RJ-JD:45123] (13 of 13) [CMA-19/2024] rightly discarded the evidence of the alleged eye witness. The learned Tribunal has prudently adopted a holistic approach before rejecting the claim petition by carefully considering the material placed on record as well as the statements made by the witnesses. The findings as recorded by the learned Tribunal are totally in consonance with the material/documents placed on record and the same does not deserve any interference.

25. In view of the above discussion, this Court does not find any ground to interfere with the impugned judgment and award dated 21.07.2023 and the present appeal is hence, dismissed.

26. Pending applications, if any, stand disposed of.

(REKHA BORANA),J 171-T.Singh/AbhishekK/-

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Rajasthan High Court - Jodhpur