Rajasthan High Court - Jodhpur
Shyama Devi And Ors vs Nemi Chand And Ors on 16 September, 2020
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 878/2012
United India Insurance Company Limited, Fort Road, Nagaur
through its Legally Constituted Authority, Divisional Office, 12-D
Residency Road, Jodhpur.
----Appellant
Versus
1. Smt.Shyama Devi W/o Lt. Sh. Parsaram.
2. Ram Prakash S/o Late Sh. Parsaram.
3. Mst. Manju D/o Late Sh. Parsaram (Minor).
4. Gyan Prakash S/o Late Sh. Parsaram (Minor).
Minors are represented through their natural guardian mother
Smt. Shyama Devi.
All by caste Jat, Residents of Village Asawari, Tehsil & District
Nagaur.
5. Nemi Chand S/o Shri Madanlal mali, resident of Hospital
Road, Kuchera, District Nagaur.
6. Haidar Ali S/o Mohd. Mazid, resident of Roon, Tehsil &
District Nagaur.
7. Mada Ram S/o Shri Bhikha Ram Jat, Resident of Village
Barani Khurd, Bhopalgarh, District Jodhpur.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 639/2012
1. Shyama Devi W/o Late Shri Parasram, aged 45 years,
2. Ram Prakash S/o Late Shri Parasram, aged 17 years,
3. Manju D/o Late Shri Parasram, aged 15 years,
4. Gyanprakash S/o Late Shri Parasram, aged 11 years,
All by caste Jat, Residents of Village Asawari, Tehsil & District
Nagaur. (The appellant no.2 to 4 being minor through natural
guardian mother Shyama Devi)
----Appellants
Versus
1. Nemi Chand S/o Shri Madan Lal, by caste Mali, resident of
Hospital Road Kuchera, District Nagaur.
2. Haidar Ali S/o Shri Mohammed Mazid, by caste Musalman,
resident of Village Roon, Tehsil & District Nagaur.
3. Mada Ram S/o Shri Bhikha Ram, by caste Jat, resident of
Village Barani Khurd, Bhopalgarh, District Jodhpur.
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4. United India Insurance Co. Ltd. through Branch Manager,
Branch Office Fort Road, Nagaur.
----Respondents
For Appellant(s) : Mr.Jagdish Vyas.
For Respondent(s) : Mr.Mahendra Choudhary.
Mr.RS Choudhary.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
07/09/2020
1. In wake of onslaught of COVID-19, abundant caution is
being taken while hearing the matters in Court.
2. The insurance company has preferred Civil Misc. Appeal
No.878/2012 challenging the judgment dated 20.01.2012 passed
by Motor Accident Claims Tribunal, Nagaur whereas the claimants
have preferred Civil Misc. Appeal No.639/2012 seeking
enhancement of the compensation awarded vide aforesaid
judgment.
3. The unfortunate accident happened on 11.7.2009 at
about 6:00 PM while Parsaram (since deceased) was going on
motorcycle bearing registration No.RJ-21-3M-7518 from Village
Roon to Merta Road, a jeep bearing registration no.RJ-19C-9710
came from opposite direction and hit the motorcycle as a result
whereof, Parsaram suffered grievous injuries and died during the
course of treatment.
4. Learned counsel for the appellant insurance company
submitted that the learned Tribunal has substantially relied upon
criminal case documents particularly, FIR, site plan, site inspection
memo etc. without actually recording the nature of involvement of
the jeep in question in the accident. Learned counsel for the
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appellant insurance company submitted that while the accident
had happened on 11.7.2009, the FIR was lodged on 12.7.2009
without giving the registration number of the jeep in question and
it was only at a belated stage on 3.9.2009, Ex.6 Fard Jabti was
prepared when the driver of the jeep in question has brought the
same before the police authority. Learned counsel for the
appellant insurance company submitted that on the same day i.e.
3.9.2009 when the Fard Jabti was recorded and the vehicle in
question i.e. Jeep No.RJ-19C-9710 for the first time came into
picture, the notice under Section 133 of the Motor Vehicles Act
was given. Learned counsel for the appellant insurance company
further submitted that the challan documents do not deal with any
explanation regarding the tracing of the vehicle and the vehicle
coming into picture is a blurred fact which ought not to be taken
into consideration by the learned Tribunal. Learned counsel for the
appellant insurance company further submitted that the criminal
case resulted into acquittal. Learned counsel for the appellant
insurance company further submitted that the criminal case
documents cannot be the sole reason of granting compensation.
Learned counsel for the appellant insurance company further
submitted that there were no eye witnesses in the case. In
support of his submissions, learned counsel for the appellant
insurance company has relied upon the following judgments :-
(I) Certified copy of the judgment dated 10.11.2017 passed in
Criminal Original No.355/2009 in this accident against the driver
Nemichand wherein all the eye witnesses were declared hostile,
relevant paras no.9, 10, 11, 12, 13, 14 and 23 whereof read as
under :-
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9- mDr lk{kh ih-M- 01 ds dFkukuqlkj fouksn ?kVuk dk izR;{kn'khZ lk{kh
gSA vfHk;kstu lk{kh fouksn dqekj ih-M- 04 us vius l'kiFk dFkuksa esa ;g dgk
gS fd fnukad 11-07-09 dks ?kjsyw dke ds fy, :.k x;k FkkA 'kke 5-30 cts
okfil xkao :.k vk jgk FkkA rc ,d thi rst LihM ls vksojVsd djds
fudyh mDr thi Qkjlkjke ds VDdj ekjdj pyh xbZA fQj jkts'k dks Qksu
djds cqyk;k blds ckn Qjlkjke dks thi esa Mkydj vlkojh o tks/kiqj
ysdj x,A Qjlkjke ckn esa [kRe gks x;kA
izfrijh{kk esa mDr lk{kh ih-M- 04 fouksn dqekj us ;g cryk;k gS fd
mlds thi ds uEcj rFkk thi ds pkyd ds ckjs esa /;ku ugha gSA
bl izdkj mDr vfHk;kstu lk{kh ih-M- 04 fouksn dqekj us Hkh uk rks
Li"V :i ls nq?kZVuk dkfjr djus okys thi jftLVªs'ku la[;k vkj ts 19 lh
9710 dks gksuk crk;k uk gh mDr thi dk oDr nq?kZVuk pkyd vfHk;qDr dks
gksuk crk;k gSA
bl izdkj mDr izR;{kn'khZ lk{kh ih-M- 04 fouksn dqdkj ds c;kuksa ls
Hkh mDr rF; dh rkbZn ugha gksrh gS fd nq?kZVuk mDr thi jftLVªs'ku la[;k
vkj-ts- 19 lh 9710 ls dkfjr gqbZ gks rFkk mDr thi dk pkyd vfHk;qDr
gksA
10- vfHk;kstu la[;k ih-M- 10 jkepUnz us Hkh vius l'kiFk dFkuksa esa ;g
dgk gS fd mlds U;k;ky; esa c;ku nsus ds djhc rhu lky igys 'kke djhc
6-15 cts og rFkk f'kojke :.k tkus okyh jksM+ ij ugha [kM+s Fks uk gh thi
jftLVªs'ku ua- vkj-ts- 19 lh 9710 ds pkyd dus gekjs ikl mDr thi jksdh
vkSj uk gh mDr thi ls eksVjlkbfdy dk ,DlhMsUV gksus dh ckr crkbZA bl
izdkj mDr vfHk;kstu lk{kh us Hkh mDr rF; dh rkbZn ugha dh gS fd nq?kZVuk
mDr thi jftLVªs'ku la[;k vkj ts 19 lh 9710 ls dkfjr gqbZ gks rFkk mDr
thi dk pkyd vfHk;qDr gksA
11- vfHk;kstu lk{kh ih-M- 11 jkeizlkn us vius l'kiFk dFkuksa esa ;g dgk
gS fd eksVjlkbfdy ij lokj Qjlkjke ds ,d thi tks rstxfr jQrkj ls
vkbZ Fkh] us VDdj ekjhA Qjlkjke ds ?kjokyksa dks Qksu fd;k rFkk mldks
bZykt ds fy, vLirky ys x,A vkxs mDr lk{kh vius ekSf[kd ijh{k.k esa
gh ;g dfFkr djrk gS fd thi dk pkyd dkSu Fkk mls irk ughaA mDr
lk{kh i{knzksgh ?kksf"kr gqvk gS rFkk fo}ku vfHk;kstu vf/kdkjh us mDr lk{kh ls
foLr`r ftjg dh gSA ftjg esa Hkh mDr lk{kh iqfyl c;ku izn'kZ ih- 10 esa
thi pkyd usehpan dk uke ugha fy[kk;k tkuk Lohdkj fd;k gSA
bl izdkj mDr lk{kh ih-M- 11 jkeizlkn ds c;kuksa ls Hkh mDr rF;
dh rkbZn ugha gksrh gS fd nq?kZVuk mDr thi jftLVªs'ku la[;k vkj-ts- 19 lh
9710 ls dkfjr gqbZ gks rFkk mDr thi dk pkyd vfHk;qDr gksA
12- vfHk;kstu lk{kh ih-M- 13 txnh'k us vius l'kiFk c;kuksa esa ;g dgk
gS fd pkj lky igys og eksVjlkbfdy ls :.k tk jgk Fkk mlds lkFk esa
eksgujke tkVk FkkA :.k o /kok ds chp ,DlhMsaV gqvk FkkA ,DlhMsaV fdl
lk/ku ls gqvk rFkk mldk pkyd dkSu Fkk mls tkudkjh ugha gSA bl izdkj
mDr p'enhn lk{kh us vfHk;kstu dgkuh dks lEcy iznku ugha fd;k gS rFkk
i{knzksgh ?kksf"kr gqvk gSA izfrijh{kk esa mDr lk{kh us Li"V ;g LohdkjksfDr dh
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gS fd mlus usekjke dh thi ls ,DlhMsaV gksrs ugha ns[kkA
13- vfHk;kstu lk{kh ih-M- 15 f'kojke us Hkh vius l'kiFk c;kuksa esa nq?kZVuk
dkfjr djus okys lk/kku ds :i esa thi jftLVªs'ku la[;k vkj ts 19 lh
9710 dks ugha crk;k gS uk gh oDr nq?kZVuk mDr thi dk pkyd vfHk;qDr
dk gksuk crk;k gSA bl izdkj mDr lk{kh ds c;kuksa ls Hkh bl rF; dh iqf"V
ugha gksrh gS fd nq?kZVuk mDr okgu thi jftLVªs'ku la[;k vkj ts 19 lh
9710 ls dkfjr gqbZ gks rFkk mDr thi dk pkyd vfHk;qDr gksA
14- vfHk;kstu lk{kh ih-M- 16 thoujke us nq?kZVuk ugha ns[kuk Lohdkj
fd;k gSA bl izdkj mDr lk{kh us Hkh bl rF; dh ys'kek= Hkh rkbZn ugha dh
gS fd nq?kZVuk mDr okgu thi jftLVªs'ku la[;k vkj ts 19 lh 9710 ls
dkfjr gqbZ gks rFkk mDr thi dk pkyd vfHk;qDr gksA
23- vc gesa bl rf; dk fu/kkZj.k djuk gS fd mDr nq?kZVuk vfHk;qDr }kjk
mDr okgu thi jftLVªs'ku la[;k vkj ts 19 lh 9710 dks rstxfr
mrkoysiu o mis{kkiw.kZ rjhds ls pykdj dkfjr dh xbZA mDr rF; ds lEcU/
k esa iwoZ esa foLrkj ls foospu fd;k tk pqdk gS fd oDr nq?kZVuk mDr okgu
thi jftLVªs'ku la[;k vkj ts 19 lh 9710 dk pkyd vfHk;qDr dk gksuk
vfHk;kstu i{k dh lk{; ls izekf.kr ugha gqvk gSA blds vfrfjDr ifjoknh
jkts'k dqekj us vis izfrijh{kk esa ekSds ij mifLFkr ugha gksuk Lohdkj fd;kA
vfHk;kstu dgkuh ds vuqlkj ?kVuk ds izR;{kn'khZ lk{khx.k rFkk ?kVukLFky
ij ?kVuk ds rqjUr i'pkr igqp a us okys lk{khx.k ih-M- 10 jkepUnz o ih-M- 11
jkeizlkn] ih-M- 13 txnh'k] ih-M- 15 f'kojke o ih-M- 16 thoujke us
vfHk;kstu dgkuh dh rkbZn ugha dh gSA mDr leLr lk{khx.k i{knzksgh ?kksf"kr
gq, gSA bl izdkj i=koyh ij miyC/k leLr ekSf[kd lk{; ls ;g rF;
HkyhHkkafr izekf.kr ugha gqvk gS fd mDr nq?kZVuk dkfjr djus esa vfHk;qDr dh
mis{kk] xyrh ;k ykijokgh jgh gksA bl izdkj vfHk;kstu i{k ;g
rf; ;qfDr;qDr :i ls lansg ls ijs izekf.kr djus esa vleFkZ jgk gS fd mDr
nq?kZVuk vfHk;qDr }kjk mDr okgu thi jftLVªs'ku la[;k vkj ts 19 lh 9710
dks rstxfr mrkoysiu o mis{kkiw.kZ rjhds ls pykdj dkfjr dh xbZA
blh izdkj vfHk;qDr ds fo:) fdlh Hkh lk{kh us bl ckjs esa dksbZ
dFku ugha fd;k gS fd vfHk;qDr oDr nq?kZVuk ekSds ls Hkkx x;k gks vkSj
vkgr dks fpfdRldh; lqfo/kk ugha iznku djk, rFkk ?kVuk dh lwpuk
fudVre iqfyl Fkkuk dks ugha nhA
(II) Cholamandalam General Insurance Co. Ltd. vs. Smt. Badami
& Ors. reported in 2018(2) RAR 587 (Raj.), relevant para no.6
whereof reads as under :-
"6. In order to prove Issue No.1 claimants had failed
to examine any eye-witness. The only witness examined by
the claimants was A.W.1 Shri Pema. The said witness had not
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witnessed the accident. It was necessary for the claimants to
have proved that the accident had occurred on account of
rash and negligent driving of respondent No.5 while driving
the offending vehicle. Merely because challan had been
presented in the criminal case, was not sufficient to decide
Issue No.1 in favour of the claimants. The driver of the
offending vehicle could be acquitted in the criminal case. So
far as the claim petition was concerned, the claimants were
required to examine the eye-witnesses to establish the
manner of accident. Opposite party would have got an an
opportunity to cross-examine the eye-witness to test his
testimony with regard to the manner of accident. In the
absence of examination of the eye-witness before the
Tribunal, the opposite party has been denied its valuable right
to cross-examine the said witness and establish their own
plea. Although, as per the judgments relied upon by the
learned counsel for the claimants given by Coordinate Bench
of this Court (Single Bench), claim petition could be allowed
in the absence of examination of eye-witness but in the
considered opinion of this court, examination of an eye-
witness before a claim petition could be allowed was
essential. In case it is to be held that there was no need to
examine an eye-witness and the claim petition could be
allowed merely on the basis of the documents attached with
the challan in the criminal case, then there is no need even to
issue notice to the opposite party and the compensation could
be granted merely on the filing of the claim petition alongwith
challan papers. However, it cannot be done so. Before a claim
petition could be allowed, the other party has to be heard.
Claimants have to examine witnesses to prove the issues qua
which onus is upon them. Other party gets a chance to cross-
examine the witnesses and test the truthfulness of the said
witnesses."
(III) Mataji Bewa and others. vs. Hemanta Kumar Jena and
another, reported in 1994 ACJ 1303, relevant para no.6 whereof
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reads as under :-
"6. In view of the rival submissions of the parties, the
first question that arises for consideration is whether the
Tribunal was justified in holding that the deceased was
travelling on the offending truck as a passenger and
succumbed to the injury on account of the accident of the
truck in question. The sole basis for the Tribunal to come to
the aforesaid conclusion is the contents of a charge-sheet
filed in the criminal case. The contents of a charge-sheet
cannot possibly be treated as an evidence in the claim
proceedings. The Tribunal obviously committed gross error of
law in relying upon the said charge-sheet to come to the
conclusion that the deceased was travelling on the truck as a
passenger. On the other hand, the positive evidence of the
claimants that the deceased was a pedestrian and the truck
came and knocked him down has not been impeached in any
manner by way of cross-examination. There was no
justification on the part of the Tribunal to ignore that
evidence of the claimants. In the aforesaid premises, the
finding of the Tribunal that the deceased was travelling on
the truck cannot be sustained and the said finding is
accordingly set aside. On the evidence on record, it must be
held that the deceased was a pedestrian and while going on
the road, the offending truck came and knocked him down."
(IV) Mahesh Kumar Sharma and another. vs. United India
Insurance Co. Ltd. and others, reported in 2008 RAR 72 (Raj.),
relevant para no.10 whereof reads as under :-
"10. Since learned Tribunal placed reliance on the
statements of witnesses recorded u/S. 161 CrPC. I deem it
appropriate to examine the scope and object of this section.
It is well settled that examination contemplated by Sec. 161
CRPC is not of judicial character. The statements of persons
made before the police and before the Court on oath cannot
be treated as identical and do not stand on the same footing.
Sec. 162(1) contain a mandate to Investigating Police Officer
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not to obtain signature of the person whose statement is
reduced in writing. Thus every valid and lawful case diary is
unsigned by the witness. The statement recorded u/S. 161
CrPC cannot be used as a substantive piece of evidence. It
could only be utilised for the purpose of contradicting the
evidence of prosecution witnesses. Statement recorded U/S.
161 CrPC cannot be used for any other purpose except
specify u/S. 162 CrPC."
(V) Oriental Insurance Company Limited vs. Meena Variyal and
Ors, reported in (2007) 5 SCC 428, relevant paras no.10 & 11
whereof read as under :-
"10. Before we proceed to consider the main aspect
arising for decision in this Appeal, we would like to make
certain general observations. It may be true that the Motor
Vehicles Act, insofar as it relates to claims for compensation
arising out of accidents, is a beneficent piece of legislation. It
may also be true that subject to the rules made in that
behalf, the Tribunal may follow a summary procedure in
dealing with a claim. That does not mean that a Tribunal
approached with a claim for compensation under the Act
should ignore all basic principles of law in determining the
claim for compensation. Ordinarily, a contract of insurance is
a contract of indemnity. When a car belonging to an owner is
insured with the insurance company and it is being driven by
a driver employed by the insured, when it meets with an
accident, the primary liability under law for payment of
compensation is that of the driver. Once the driver is liable,
the owner of the vehicle becomes vicariously liable for
payment of compensation. It is this vicarious liability of the
owner that is indemnified by the insurance company. A third
party for whose benefit the insurance is taken, is therefore
entitled to show, when he moves under Section 166 of the
Motor Vehicles Act, that the driver was negligent in driving
the vehicle resulting in the accident; that the owner was
vicariously liable and that the insurance company was bound
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to indemnify the owner and consequently, satisfy the award
made. Therefore, under general principles, one would expect
the driver to be impleaded before an adjudication is claimed
under Section 166 of the Act as to whether a claimant before
the Tribunal is entitled to compensation for an accident that
has occurred due to alleged negligence of the driver. Why
should not a Tribunal insist on the driver of the vehicle being
impleaded when a claim is being filed?
11. As we have noticed, the relevant provisions of the
Act are not intended to jettison all principles of law relating
to a claim for compensation which is still based on a tortious
liability. The Tribunal ought to have, in the case on hand,
directed the claimant to implead Mahmood Hasan who was
allegedly driving the vehicle at the time of the accident.
Here, there was also controversy whether it was Mahmood
Hasan who was driving the vehicle or it was the deceased
himself. Surely, such a question could have been decided
only in the presence of Mahmood Hasan who would have
been principally liable for any compensation that might be
decreed in case he was driving the vehicle. Secondly, the
deceased was employed in a limited company. It was
necessary for the claimants to establish what was the
monthly income and what was the dependency on the basis
of which the compensation could be adjudged as payable.
Should not any Tribunal trained in law ask the claimants to
produce evidence in support of the monthly salary or income
earned by the deceased from his employer Company? Is
there anything in the Motor Vehicles Act which stands in the
way of the Tribunal asking for the best evidence, acceptable
evidence? We think not. Here again, the position that the
Motor Vehicles Act vis-a-vis claim for compensation arising
out of an accident is a beneficent piece of legislation, cannot
lead a Tribunal trained in law to forget all basic principles of
establishing liability and establishing the quantum of
compensation payable. The Tribunal, in this case, has chosen
to merely go by the oral evidence of the widow when without
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any difficulty the claimants could have got the employer -
company to produce the relevant documents to show the
income that was being derived by the deceased from his
employment. Of course, in this case, the above two aspects
become relevant only if we find the insurance company
liable. If we find that only the owner of the vehicle, the
employer of the deceased was liable, there will be no
occasion to further consider these aspects since the owner
has acquiesced in the award passed by the Tribunal against
it.
(VI) United India Insurance Co. Ltd. vs. Pawan Tikkiwal and Ors.
reported in 2008 RAR 56 (Raj.), relevant para no.7 whereof reads
as under :-
"7. One of the settled principle of the law of evidence
is that the first version of an incident contains the kernel of
truth. For, it is the tendency of human beings to speak the
truth immediately. Subsequently, after due deliberations, the
facts can be changed, the story can be embroidered and a
fictional version can be created. Thus, while appreciating the
evidence, the courts consider the initial statement as
containing the substratum of truth. In case there is a change
in the factual foundation of the case, the court should be put
on alert and should scrutinise the evidence meticulously so
as to separate the wheat from the sheff."
5. Learned counsel for the claimants categorically
submitted that the appellant insurance company is trying to create
a mistrust in the mind of the Court even when the findings arrived
at by the learned Tribunal are well reasoned and in accordance
with law. Learned counsel for the claimants submitted that in case
any doubt was there upon the story of prosecution, then the
investigating officer should have been called by the insurance
company to negate the facts on record of the charge-sheet. There
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was no cross examination whatsoever on the part of the insurance
company to refute the implication of the vehicle in question.
Learned counsel for the claimants further submitted that a
possibility of preponderance was created when the charge-sheet
was filed and it was for the insurance company to point out the
loophole, if any, in the prosecution story. Learned counsel for the
claimants in support of his submissions has relied upon the
following judgments :-
(I) National Insurance Co. Ltd. vs. Rajendra Singh & Ors.
reported in MACD 2013(3) (Raj.) 1353, judgment whereof reads
as under :-
"This appeal is directed against the judgment and
award dated 24.8.2005 passed by the Motor Accident Claims
Tribunal, Sriganganagar, Camp at Suratgarh ('the Tribunal'),
whereby the Tribunal has awarded a sum of Rs.6,66,000/- as
compensation for the death of one Gulab Singh.
2. The facts in brief are that an application for
compensation under Section 166 was filed before the
Tribunal by the parents and wife of Gulab Singh with the
averments that on 27.2.2002 their son / husband Gulab
Singh was going on the road when Truck No. RRC-828 came
from behind, which was being driven rashly and negligently
by Awatar Singh and hit Gulab Singh from behind, the truck
driver and owner of the vehicle admitted Gulab Singh at
Suratgarh Hospital where he succumbed to injuries. It was
indicated that the FIR of the said incident was lodged at
Police Station Suratgarh and after investigation, the police
has filed challan against the truck driver Awatar Singh. The
claimants claimed a sum of Rs.25,80,000/- as compensation
for untimely death of Gulab Singh, who was aged 27 years
and was employed as a truck driver.
3. A reply to the application was filed by the owners
and driver of the truck and it was contended that the fact of
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the matter was that while going on the road from Bikaner to
Suratgarh, they found a injured person lying at side of the
road and it was found that he was Gulab Singh, who was
related to Amarjeet Singh, the owner of the truck, therefore,
they took the injured to the hospital and lodged the FIR
against the unknown driver. However, subsequently, the
relatives, only with a view to claim compensation, have
lodged false case against them and denied the factum of
accident. However, it was stated that if they are found liable
then the liability for compensation for the death will be of the
appellant-Insurance Company only.
4. The appellant-Insurance Company also filed its
reply to the application and denied the involvement of the
vehicle in the accident. Several other pleas seeking to
dispute its liability based on the violation of policy conditions
were also raised. Ultimately, it was prayed that claim
application be dismissed.
5. The Tribunal framed four issues and on behalf of
the claimants AW-1 Puja wife of the deceased was examined
and on behalf of the appellant-Insurance Company NAW-1
Satyanarayan was examined. No other evidence was led by
any of the parties.
6. The Tribunal after hearing the parties came to the
conclusion that the accident occurred on account of rash and
negligent driving by the driver Awatar Singh and awarded
compensation of Rs.6,66,000/- alongwith interest @ 9% p.a.
from the date of filing the application.
7. It was contended by learned counsel for the
appellant-Insurance Company that the non-involvement of
the vehicle in question is writ large on the record of the case,
inasmuch as, the FIR was lodged by Amarjeet Singh, the
owner of the vehicle, who was himself with the vehicle at the
time of accident and incidentally, Gulab Singh, the deceased
was the relative, they took him to hospital, where he
succumbed. It was submitted that the claimants have failed
to lead any evidence and the evidence of AW-1 Puja is no
evidence in the eye of law as she has specifically stated in
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(13 of 28) [CMA-878/2012]
her statement that she was not a eyewitness and she was
giving the statement as told to her by her father-in-law.
Consequently, the finding recorded by the Tribunal which is
based on merely drawing adverse inference on account of
non-examination of the driver of the vehicle-in-question
cannot be the basis.
8. It was submitted that as the owner and driver
failed to contest the claim by leading any evidence, the
appellant-Insurance Company's application under Section
170 was allowed and thereafter, the evidence was led and
the officers of the appellant-Insurance Company have
specifically stated that the vehicle-in-question was not
involved.
9. Learned counsel Mr. Joshi appearing for the
respondent No.3 duly supported the award impugned.
10. I have considered the rival submissions.
11. It is true that in the present case there has been
no eyewitness of the accident and, therefore, the matter was
required to be examined on the basis of probability based on
the evidence available on record.
12. On part of the claimants, AW-1 Puja, wife of the
deceased appeared in the witness-box and exhibited the
documents prepared by the police authorities which included
the FIR, Final Report, Postmortem Report and other
supporting documents.
13. On part of the appellant-Insurance Company only
one line statement was made by NAW/4/1 Satyanarayan that
the vehicle-in-question was not involved in the accident. The
driver and owner of the vehicle after filing their written
statement choose not to appear in the witness-box and
looking to the nature of issue which was framed by the
Tribunal as to whether the vehicle was being driven rashly
and negligently by Awatar Singh, which struck Gulab Singh,
which resulted in his death, once the documents prepared by
the police authorities wherein challan was filed against the
driver of the vehicle and which documents have been held to
be admissible in evidence by this Court in R.S.R.T.C. v. Nand
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(14 of 28) [CMA-878/2012]
Lal : ACTC 2001 (Raj.) 489 the burden shifted on the owner
and driver of the vehicle and once they chose not to appear
in the witness-box. The finding recorded by the Tribunal of
drawing adverse inference against them cannot be faulted.
14. So far as the fact that FIR was lodged by owner of
the vehicle himself cannot be a solitary sufficient ground to
come to a conclusion that the said vehicle was not involved
in the accident as such a presumption would lead to
undesirable consequences.
15. In that view of the matter, the finding recorded by
the Tribunal on issue No.1 cannot be faulted and the same
does not require any interference. No other issue was
pressed during the course of arguments.
16. In view of the above discussions, there is no
substance in the appeal and the same is, therefore,
dismissed. The execution of the award was stayed by this
Court vide order dated 7.8.2006 it shall be required of the
appellant - Insurance Company to comply with the award
within a period of two months in terms of the award.
17. No costs."
(II) New India Assurance Co. Ltd., Thro' Regional Manager, Jaipur
vs. Yugal Kishore Sharma & Ors. reported in 2017(4) DNJ (Raj.)
1513, relevant paras no.7, 8 & 11 whereof read as under :-
"7. mijksDr of.kZr ?kVukdze ds voyksdu ls izdV gksrkgS fd izFke lwpuk
fjiksVZ ?kVuk ds rqjUr i'pkr ntZ djk;k tkukrFkk jkstukepk fjiksVZ o izFke
lwpuk fjiksVZ esa okgu ds fooj.k ds( i'pkr okgu Lokeh dks okgu ds pkyd
o nq?kZVuk ds ckcr uksfVlfn;k tkuk ,oa vuqla/kku ds i'pkr okgu pkyd ds
fo:) vkjksiizekf.kr gksus ij vkjksi i= izLrqr fd;k tkuk izdV gksrk
gS]ftldk foospu v/khuLFk U;k;ky; us vius fu.kZ; esa foLr`r :ils fd;k gSA
v/khuLFk U;k;ky; esa Dyses.V dh vksj ls p'enhnlk{kh ds :i esa ,-M-3 egs'k
dqekj dks ijhf{kr djok;k x;k gSrFkk Dyses.V dh lk{; ds [k.Mu esa chek
dEiuh dh vksj ls u rksnLrkosth lk{; esa chek dEiuh ds tkap
vf/kdkjh }kjk dh xbZtkWap dk fjdkMZ is'k fd;k x;k gS] u chek dEiuh dh
vksj ls[k.Mu esa xokg izLrqr gqvk gSA bl dze esa chek dEiuh dsvf/koDrk ds
}kjk U;k;ky; eas ewy :i ls ;g rdZ j[kk x;kfd ;fn chek dEiuh dh vksj
ls xokg izLrqr ugha Hkh fd;k x;kgS] rc Hkh v/khuLFk U;k;ky; }kjk ikfjr
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(15 of 28) [CMA-878/2012]
fu.kZ; esa ,-M-3 egs'kdqekj 'kekZ dh lk{; ls lacaf/kr okgu dh nq?kZVuk esa
fyIrrklafnX/k gS rFkk v/khuLFk U;k;ky; ds fu.kZ; ls ;g Hkh izdV gksrkgS fd
vuqla/kku ds i'pkr iqfyl }kjk okgu dks nq?kZVuk esa fyIrekus tkus ds ckn
vkjksi i= izLrqr fd;k x;k gS rFkk mDrvuqla/kku o vkjksi i= dks nq?kZVuk esa
okgu dh fyIrrk ugha gksusds ifj.kkeLo:i pqukSrh fn;k tkuk Hkh izdV ugha
gksrk gSA
8 bl U;k;ky; dh jk; esa ;fn okgu dks nq?kZVuk esa feF;k :i ls fyIr
fd;k gksuk ekuk tk, rks ml dze esa chek dEiuh dh vksj ls vuqla/kku
vf/kdkjh dks U;k;ky; esa ryc djkdj mldk ijh{k.k djok;k tkuk
vko';d Fkk] ysfdu v/khuLFk U;k;ky; ds fu.kZ; o rF;ksa ls vuqla/kku
vf/kdkjh dks ryc fd;k tkdj lk{; jsdMZ fd;k tkuk izdV ugha gksrk
gSA ,slh fLFkfr esa vuqla/kku ds ifj.kke ds dze esa v/khuLFk( U;k;ky; }kjk
fu.kZ; ikfjr fd;k x;k gS] mlesa fdlh izdkj dh =qfV ugha gSA
11 mijksDrkuqlkj iqfyl vuqla/kku] vuqla/kku esa miyC/k nLrkosth lk{;]
okgu Lokeh dks fn;s x;s uksfVl ds lkFk&lkFkp'enhn xokg dk U;k;ky; esa
ijh{k.k djus o izLrqr lk{; dkchek dEiuh dh vksj ls [k.Mu ds vHkko ,oa
fook|d la[;k&1 ds dze esa okgu dh nq?kZVuk esa fyIrrk ds ckcr v/khuLFk
U;k;ky; ustks fu"d"kZ fudkyk x;k gS] og iw.kZr% U;k;ksfpr gSA "
(III) National Insurance Co. Ltd. vs. Sinitha & Ors. reported in
2012 AIR (SCW) 10, relevant para no.19 whereof reads as
under :-
"19. To substantiate his second contention, it would be
essential for the petitioner to establish, that Shijo having
occupied the shoes of the owner, cannot be treated as the
third party. Only factual details brought on record through
reliable evidence, can discharge the aforesaid onus. During
the course of hearing, despite our queries, learned counsel
for the petitioner could not point out the relationship
between Shijo and the owner of the motorcycle involved in
the accident. Shijo is not shown to be the employee of the
owner. He was not even shown as the representative of the
owner. In order to establish the relationship between the
Shijo and the owner, the petitioner-Insurance Company could
have easily produced either the owner himself as a witness,
or even the claimants themselves as witnesses. These, or
other witnesses, who could have brought out the relationship
between the owner and Shijo, were not produced by the
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(16 of 28) [CMA-878/2012]
petitioner herein, before the Tribunal. The petitioner has,
therefore, not discharged the onus which rested on its
shoulders. Since the relationship between the Shijo and the
owner has not been established, nor the capacity in which he
was riding the vehicle has been brought out, it is not
possible for us to conclude, that Shijo while riding the
motorcycle on the fateful day, was an agent, employee or
representative of the owner. It was open to the petitioner to
defeat the claim for compensation raised by the respondents
by establishing, that the rider Shijo represented the owner,
and as such, was not a third party, in terms of the judgment
rendered by this Court in Oriental Insurance Company
Limited case (supra). The petitioner failed to discharge the
said onus. In view of the above, it is not possible for us to
accede to the second contention advanced at the hands of
the learned counsel for the petitioner."
(IV) National Insurance Co. Ltd. vs. Smt. Pushpa Rana & Ors.
reported in (2009) ACJ 287, relevant para no.11 whereof reads as
under :-
"11. The last contention of the appellant insurance
company is that the respondents claimants should have
proved negligence on the part of the driver and in this regard
the counsel has placed reliance on the Judgment of the
Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v.
Meena Variyal MANU/SC/7265/2007MANU/SC/7265/2007 :
AIR2007SC1609 . On perusal of the award of the Tribunal, it
becomes clear that the wife of the deceased had produced (i)
certified copy of the criminal record of criminal case in FIR
No. 955/2004, pertaining to involvement of the offending
vehicle, (ii) criminal record showing completion of
investigation of police and issue of charge sheet under
Section 279/304-A, IPC against the driver; (iii) certified copy
of FIR, wherein criminal case against the driver was lodged;
and (iv) recovery memo and mechanical inspection report of
offending vehicle and vehicle of the deceased. These
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(17 of 28) [CMA-878/2012]
documents are sufficient proofs to reach the conclusion that
the driver was negligent. Proceedings under Motor Vehicles
Act are not akin to proceedings in a civil suit and hence strict
rules of evidence are not required to be followed in this
regard. Hence, this contention of the counsel for the
appellant also falls face down. There is ample evidence on
record to prove negligence on the part of the driver."
(V) National Insurance Co. Ltd. vs. Smt. Pushpa Rana & Ors.
reported in (2009) ACJ 287, relevant portion of para no.17
whereof reads as under :-
"...True it is the FIR has not been formally proved, nor
formally tendered in evidence, but then the fact remains
that, from the perusal of the record it is clear that the
certified copy has been produced by the claimants
themselves, and in view of the jdugment of this Court, in is
A.S.R.T.C. v. Nand Kishore, reported in 2002 ACJ 1564,
which proceeds on the basis of the judgment of Hon'ble
Supreme Court Madamanchi Fiamappa v. Muthalum
Bojjappa, reported in AIR 1963 SC 1633, that if the
document is certified copy of the public document, it need
not be proved by calling a witness, and that strict rules of
Evidence Act are not to be insisted on by the Tribunal having
limited jurisdiction. It has also been observed in Nand
Kishore's case that the Tribunal, while dealing with the case
of compensation of motor vehicles accident, are to allow
such summary procedure as it thought fit, and the certified
copy of the FIR, inspection map and site inspection memo,
Panchhnama, injury report, or the postmortem report, as the
case may be and, other relevant documents prepared by the
police or the doctor, while discharging official duty are
admissible in evidence without there being a formal proof. In
that view of the matter it is overwhelmingly clear that, at the
time of accident the vehicle was being used for carrying
passengers for hire and reward."
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(VI) Mangla Ram vs. Oriental Insurance Co. Ltd. reported in 2018
(1) RAR 135 (SC), relevant paras no.16(15), 19, 20 & 21 whereof
read as under :-
"16. ...While dealing with a similar situation, this Court
in Bimla Devi (supra) observed thus:-
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.
19. In Dulcina Fernandes (supra), 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 (supra). In paragraphs 8
& 9, of the reported decision, the dictum in United India
Insurance Co. Ltd. v. Shila Datta (2011) 10 SCC 509, has
been adverted to as under:
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(19 of 28) [CMA-878/2012]
"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.
***
(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 paragraph 10 of the reported decision [Dulcina Fernandes and Ors. (supra)], 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.
20. In the above conspectus, the Appellant is justified in contending that the High Court committed manifest error in reversing the holistic view of the Tribunal in reference to the statements of witnesses forming part of the charge- sheet, FIR, Jeep Seizure Report in particular, to hold that (Downloaded on 16/09/2020 at 08:50:56 PM) (20 of 28) [CMA-878/2012] Jeep No. RST-4701 driven by Respondent No. 2 was involved in the accident in question. Indeed, the High Court was impressed by the Mechanical Investigation Report (Exh. 5) which stated that only a scratch mark on the mudguard of the left tyre of the vehicle had been noted. On that basis, it proceeded to observe that the same was in contradiction to the claim of the Appellant (claimant), ruling out the possibility of involvement of the vehicle in the accident. This conclusion is based on surmises and conjectures and also in disregard of the relevant fact that the vehicle was seized by the police after investigation, only after one month from the date of the accident and the possibility of the same having been repaired in the meantime could not be ruled out. In other words, the reasons which weighed with the High Court for reversing the finding of fact recorded by the Tribunal upon holistic analysis of the entire evidence, about the involvement of Jeep No. RST-4701 in the accident, cannot be countenanced. For, those reasons do not affect the other overwhelming circumstances and evidence which has come on record and commended to the Tribunal about the involvement of the subject jeep in the accident in question. This being the main edifice, for which the High Court allowed the appeal preferred by Respondent Nos. 2 & 3, it must necessarily follow that the finding of fact recorded by the Tribunal on the factum of involvement of Jeep No. RST-4701 in the accident in question will have to be restored for reasons noted hitherto.
21. Another reason which weighed with the High Court to interfere in the First Appeal filed by Respondent Nos. 2 & 3, was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST-4701 was driven rashly and negligently by Respondent No. 2 when it collided with the motorcycle of the Appellant leading to the accident. This can be discerned from the evidence of witnesses and (Downloaded on 16/09/2020 at 08:50:56 PM) (21 of 28) [CMA-878/2012] the contents of the charge-sheet filed by the police, naming Respondent No. 2. This Court in a recent decision in Dulcina Fernandes (supra), noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge-sheet against Respondent No. 2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the Accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal. Reliance placed upon the decisions in Minu B Mehta (supra) and Meena Variyal (supra), by the Respondents, in our opinion, is of no avail. The dictum in these cases is on the matter in issue in the concerned case. Similarly, even the dictum in the case of Surender Kumar Arora (supra) will be of no avail. In the present case, considering the entirety of the pleadings, evidence and circumstances on record and in particular the finding recorded by the Tribunal on the factum of negligence of the Respondent No. 2, the driver of the offending jeep, the High Court committed manifest error in taking a contrary view which, in our opinion, is an error apparent on the face of record and manifestly wrong."
(VII) Sunita and others. vs. Rajasthan State Road Transport Corporation and another reported in AIR 2019 SC 994, relevant paras no.21, 23, 25, 28 & 31 whereof reads as under :-
"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 (Downloaded on 16/09/2020 at 08:50:56 PM) (22 of 28) [CMA-878/2012] 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.
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 chargesheet against respondent No.2 for offences under u/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 chargesheet (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.
25. The Tribunal's reliance upon FIR 247/2011 (Exh. 1) and chargesheet (Exh. 2) also cannot be faulted as these documents indicate the complicity of respondent No.2. The FIR and chargesheet, coupled with the other evidence on record, inarguably establishes the occurrence of the fatal accident and also point towards the negligence of the respondent No.2 in causing the said accident. Even if the final outcome of the criminal proceedings against respondent No.2 is unknown, the same would make no difference atleast (Downloaded on 16/09/2020 at 08:50:56 PM) (23 of 28) [CMA-878/2012] for the purposes of deciding the claim petition under the Act. This Court in Mangla Ram (supra), noted that the nature of proof required to establish culpability under criminal law is far higher than the standard required under the law of torts to create liability.
28. 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 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 eye witnesses 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 (supra) and reiterated in Mangla Ram (supra)] 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 concerned witness. 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.
31. Similarly, the issue of nonexamination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. The approach in examining the evidence in (Downloaded on 16/09/2020 at 08:50:56 PM) (24 of 28) [CMA-878/2012] accident claim cases is not to find fault with non examination of some "best" eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. This court, in Dulcina Fernandes (supra), faced a similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and the respondent was acquitted in the criminal case concerning the accident. This Court, however, took the view that the material on record was prima facie sufficient to establish that the respondent was negligent. In the present case, therefore, the Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident."
(VIII) Bimla Devi and others. vs. Himachal Road Transport Corporation and others reported in 2009 AIR (SCW) 4298, relevant paras no.14 & 15 whereof read as under :-
"14. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate the respondent Nos. 2 and 3. Claimant was not at the place 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. 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 (Downloaded on 16/09/2020 at 08:50:56 PM) (25 of 28) [CMA-878/2012] 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."
(IX) Vimla Devi and others. vs. National Insurance Co. Ltd. and others reported in 2018 DNJ (SC) 1400, relevant para no.16 whereof reads as under :-
"16. 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 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."
6. After hearing learned counsel for the parties and perusing the record of the case, this Court finds that the thrust of the arguments of learned counsel for the appellant insurance company was upon the implication of the vehicle in question i.e. jeep no.RJ-19C-9710 being doubtful as though the accident (Downloaded on 16/09/2020 at 08:50:56 PM) (26 of 28) [CMA-878/2012] happened on 11.7.2009 and the FIR was lodged against an unknown vehicle on 12.7.2009, there is no vehicle in picture until 3.9.2009 when the fard jabti was prepared at the instance of the driver who brought the vehicle in question to the police station and on the same day, the notice under Section 133 of the Motor Vehicles Act (Ex.9) was given. Though the precedent law relied upon by the learned counsel for the appellant insurance company clearly required the learned Tribunal not to believe the criminal proceedings in totality and on the face value, the law regarding the requirement of the learned Tribunal to go into the facts and give independent opinion in the criminal trial, is quite clear. In the given facts and circumstances, this Court takes note of the fact that the insurance company has miserably failed to refute the prosecution story. The precedent law of Yugal Kishore Sharma (supra) clearly lays down that in case the prosecution story has to be refuted, then the investigating officer ought to be called by the insurance company and the insurance company need to produce sufficient documentary evidence that the investigation done by the investigating officer was not correct.
In the present case, there is no indication to reflect that the investigating officer was ever called or any document whatsoever was led by the insurance company to refute the prosecution story.
This Court takes note of the fact that once the documents prepared by the police authorities wherein challan was filed against the driver of the vehicle and which documents have been held to be admissible in evidence by this Court in R.S.R.T.C. vs. Nand Lal, ACTC 2001 (Raj.) 489, the burden shifted on the insurance company, owner and driver of the vehicle. The insurance company in the present case has not called any witnesses so as to (Downloaded on 16/09/2020 at 08:50:56 PM) (27 of 28) [CMA-878/2012] question the implication of the vehicle in question. The learned Tribunal had no reason not to accept the story given by the claimants supported by the charge-sheet filed by the police. The charge-sheet filed by the police is an unrefuted document. The insurance company has made no efforts whatsoever to counter the same or to produce any documentary evidence or to call the investigating officer or any person, which could discharge the burden of proof which shifted upon the insurance company due to the preponderance of possibility. Thus, no interference is called for in the impugned judgment at the instance of the appellant insurance company.
7. In view of the above, the appeal of the Insurance Company no.878/2012, having no merits, is hereby dismissed.
8. Learned counsel for the claimants in the appeal seeking enhancement of the compensation submitted that there is no adversity regarding factual matrix of the case arrived at by the learned Tribunal and he does not press the challenge on merits but prays that the ends of justice would be met if on the factual matrix arrived at by the learned Tribunal, the award is revisited while adhering to the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. ; AIR 2017 SC 5157.
9. At the same time while considering the claimants' appeal no.639/2012, this Court is of the opinion that the limited prayer of adhering to the Pranay Sethi guidelines (supra) deserves to be accepted.
10. In view of the above, learned counsel for the parties were asked to jointly submit the calculation afresh as per the (Downloaded on 16/09/2020 at 08:50:56 PM) (28 of 28) [CMA-878/2012] judgment of Pranay Sethi (supra). Learned counsel have furnished the calculation afresh before this Court, which reads as follows:-
Age of the Deceased 49 years. Multiplier 13 Future Prospects 30% Deduction on count of Personal Expenses 1/4 (4 dependents) Monthly Income of the Deceased 14,125/- Yearly income of the deceased 1,69,500./- Yearly income after deducting income tax 1,68,550/- (169500 - 950) Yearly Income after adding Future 2,19,115/- Prospects (30% of 1,68,550/- = 50,565/-) Yearly Income after deducting Personal 1,64,336/- Expenses (1/45 of 2,19,115= 54,778) Total Income after applying Multiplier of 21,36,368/- 13 Other Conventional Heads 70,000/- Total Compensation 22,06,368/- Compensation awarded by Tribunal 16,67,625/- Enhanced Compensation. 5,38,743/-
11. In light of the precedent law of National Insurance Company Ltd Vs. Pranay Sethi (supra), the enhanced award of Rs.5,38,743/- is granted which shall be payable along with interest @ 6% per annum from the date of filing of claim petition till actual payment is made. The enhanced amount is to be paid within three months from today, failing which the same shall carry interest @ 9% per annum for the subsequent period (i.e. after three months from today) till actual payment is made.
12. The appeal no.639/2012 is accordingly disposed of.
13. All pending applications also stand disposed of.
(DR. PUSHPENDRA SINGH BHATI),J SPhophaliya/-
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