This Misc. Appeal under Section 173 of Motor Vehicles Act has been filed against the award dated 16-10-2014 passed by Member, Motor Accident Claims Tribunal, Morena in Claim Case No. 318/2013.
Cross Objection has been filed by the respondents no. 1 to 5
Necessary facts for the disposal of the present appeal in short are that the respondents no.1 to 5 filed a claim petition under Section 166 of Motor Vehicles Act, on the ground that the deceased Kaushal Kumar Singh was working on the post of Head Constable in Police Department. An information was received in the police station Dimani, that one accused Mahesh Gurjar who is wanted is likely to come to attend one marriage ceremony in town Ambah and after informing the senior police officers, the deceased went to Ambah on his motor cycle bearing registration no. MP 07 MJ 0116, in civil dress to verify the information. The deceased was going on his side at normal speed. When he reached near well of Junnu Jain, village Bareh, the driver of the truck bearing registration no. MP 06 HC2611, dashed the motor cycle of the deceased, as a result of which he sustained injuries. Some by-passers chased the truck but could not be stopped. Merg under Section 174 of Cr.P.C. was registered and later on, F.I.R. in crime no.299/2013 was lodged for offence under Sections 304A of I.P.C.
During the investigation, the police seized the damaged motor cycle, spot map was prepared and other articles were seized. The statements of the witnesses were recorded and accordingly, the driver of truck no.MP 06 HC 2611 was arrested. His licence and permit were seized. The mechanical examination of the offending truck was got done, and accordingly, charge sheet has been filed. It was claimed that the monthly salary of the deceased was Rs. 22,181/-. Accordingly, claim petition was filed for recovery of Rs.1,71,16,700 (One Crore Seventy One Lac Sixteen thousand and Seven Hundred).
The defendant no.2/owner filed his written statement and stated that he was informed by the driver that while he was coming back to Morena, his truck had dashed one motor cycle who lateron expired. Therefore, he has removed the defendant no.1 from his service. The fitness certificate, Insurance Policy, Permit and driving licence were also filed by defendant no.2.
The defendant no.3 denied the claim averment and specifically took a stand that in fact no accident had taken place with the offending truck bearing registration No. MP 06 HC 2611.
The Claims Tribunal by the impugned award has allowed the claim petition and awarded Rs.38,78,302/-.
Challenging the award, it is submitted by the Counsel for the Insurance Company, that in fact, no accident had taken place with the offending Truck No.MP06HC2611, whereas the Counsel for the claimants/respondents no.1 to 5, supported the award but also claimed enhancement of compensation amount.
Heard the learned Counsel for the parties.
It is well established principle of law that the documents of the criminal case are not decisive factors for deciding the claim petition and the claim petitions are to be decided on the basis of evidence led in the claim petition.
The Supreme Court in the case of Mangla Ram Vs. Oriental Insurance Co. Ltd. reported in (2018) 5 SCC 656 has held as under :-
''24. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court 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 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 no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard.”
25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant’s eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi. In paras 8 & 9 of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta, has been adverted to as under: (Dulcina Fernandes case, SCC p. 650)
“8. In United India Insurance Co. Ltd. v.Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10)
‘10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.
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(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. …
(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.’
9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, SCC p. 519)
‘10. … We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.’”
In para 10 of Dulcina Fernandes, the Court opined that 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.''
The Supreme Court in the case of Halappa Vs. Malik Sub. reported in (2018) 12 SCC 15 has held as under:-
"8. The judgment of the Tribunal indicates that the defence of the insurer based on the first information report, the complaint Ext. P-1 and the supplementary statement of the appellant at Ext. P-2 was duly evaluated. The Tribunal, however, observed thus:
“… Respondent 3 and RW 1 submitted that the petitioner has invited the alleged unfortunate accident but except the FIR and complaint Ext. P-1 Respondent 3 has not produced any documents to show that at the time of accident the petitioner was travelling as a passenger by sitting on the engine of the tractor in question. During the course of cross-examination RW 1 has admitted that Respondent 3 has maintained a separate file in respect of accident in question and he has also admitted that Respondent 3 has not produced the investigator’s report of this case. Admittedly Respondent 3 has not examined any independent eyewitness to the accident to prove that on the relevant date and time of the accident the petitioner was travelling as a passenger by sitting on the engine of the tractor. If really the petitioner has sustained grievous injuries by falling down from the engine of said tractor Respondent 3 insurer could have produced the separate file maintained by it in respect of the accident in question and it could have also produced investigator’s report in respect of the said accident but admittedly Respondent 3 has not produced the said separate file and investigator’s report in respect of the accident in question for the reasons best known to it. On the other hand as already stated above it is clear from the statement of petitioner on oath and eyewitness and from the supplementary statement of petitioner at Ext. P-2 and police statement of witnesses at Ext. P-3 and chargesheet at Ext. P-6 it is clear that due to rash and negligent driving of said tractor by Respondent 1 the said tractor turtled down and fell over the petitioner who was about to board the tractor and as a result of which the petitioner has sustained grievous injuries. Moreover as already stated above the Investigating Officer concerned after detail investigation has filed the charge-sheet against Respondent 1 for the offences punishable under Sections 279 and 338 IPC…”
9. The High Court has proceeded to reverse the finding of the Tribunal purely on the basis that the FIR which was lodged on the complaint of the appellant contained a version which was at variance with the evidence which emerged before the Tribunal. The Tribunal had noted the admission of RW 1 in the course of his cross-examination that the insurer had maintained a separate file in respect of the accident. The insurer did not produce either the file or the report of the investigator in the case. Moreover, no independent witness was produced by the insurer to displace the version of the incident as deposed to by the appellant and by PW 3. The cogent analysis of the evidence by the Tribunal has been displaced by the High Court without considering material aspects of the evidence on the record. The High Court was not justified in holding that the Tribunal had arrived at a finding of fact without applying its mind to the documents produced by the claimant or that it had casually entered a finding of fact. On the contrary, we find that the reversal of the finding by the High Court was without considering the material aspects of the evidence which justifiably weighed with the Tribunal. We are, therefore, of the view that the finding of the High Court is manifestly erroneous and that the finding of fact by the Tribunal was correct."
The Supreme Court in the case of State of M.P. Vs. Surbhan reported in AIR 1996 SC 3345 has held as under :
"7. It is contended that the FIR mentions the names of above persons who were specifically mentioned and it lends corroboration to the evidence of P.W. 2. We find no substance in this contention. The FIR cannot be used as substantive evidence or corroborating a statement of third party, i.e., P.W. 2. FIR cannot be used to corroborate the evidence of P.W.2. It can be used either to corroborate or for contradiction of its maker."
The Division Bench of this Court in the case of Dhanwanti and others Vs. Kulwant singh and others reported in 1994 ACJ 708 has held as under :-
"10. ....It is a well settled proposition of law that evidence recorded in criminal court and the findings arrived at thereon should not be used in claim cases. Such evidence for the purposes of claim cases is inadmissible. [See Shabbir Ahmed Vs. M.P.S.R.T.C., Bhopal, 1984 ACJ 525 (M.P.)]"
The co-ordinate bench of this Court in the case of Oriental Insurance Co. Ltd. Vs. Kamli and others reported in 2010 ACJ 1340 has held as under :
"F.I.R. is not a substantive piece of evidence and as such, it cannot be placed on pedestal higher than the statement made before the Claims Tribunal on oath..... therefore, we do not find any illegality in the approach of the Claims Tribunal while coming to the conclusion that the deceased was not travelling in the tractor-trolley."
The Supreme Court by judgment dated 14.2.2019 passed in Civil Appeal No.1665/2019 (Sunita and Ors. Vs. Rajasthan State Road Transport Corporation & Anr.) has held as under :-
"20........ It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal’s role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases."
However, in order to consider the reliability and credibility of witnesses, examined by the claimants, this Court may incidentally refer to the documents of criminal case relied upon by the claimants.
FIR, Ex. P.3 relied upon by the claimants reads as under ;
Thus, it is clear that the initial information, which was received by the police was that some unknown four wheeler vehicle (which cannot be a truck) has dashed a motor cyclist as a result of which he has expired.
However, the claimants have examined one Kishan Singh (P.W.3) as an eye witness. This witness has stated that on 2-6-2013 in the night, he was coming from Barwai and was going to Morena on his car. When he reached near Bareh village, one truck which was being driven in a rash and negligent manner crossed his car and dashed the motor cycle which was coming from opposite direction. The number of truck was MP 06 HC 2611. He chased the truck but could not locate after Dimani. About one month after the incident, he received a phone call from Police Station Ambah and informed that one constable has expired in the accident and, therefore, he was called in the police station, and accordingly he gave his statement. In cross-examination, this witness has stated that the place of accident is about 5-6 kilometers away from Ambah Police Station. He further stated that the truck had crossed his car about 100 to 125 meters away from the place of accident. After noticing the accident, he did not stop the car to look at the motor cyclist. He further stated that he had chased the truck for 7-8 kms and when he reached in front of Dimani Police Station, he was about 300-400 meters behind the truck. He further admitted that during this chase, he had passed in front of Dimani Police Station, Badagaon Police Station. He also admitted that even after giving up the chase, he didnot inform Dimani Police Station or Police Outpost situated near over-bridge. He further admitted that he never informed any police station. Only after receiving instructions from Police Station Ambah, he went to the police station for recording his evidence.
Thus if the evidence of this witness is considered, then it is clear that he was called by the police. However, there is nothing on record to show as to how the police came to know that this witness had not only witnessed the incident, but had also chased the offending truck. During the course of arguments, it was fairly conceded by the Counsel for the claimants/respondents no.1 to 5 that there is no toll booth on either side of the road, from where the police could have gathered the information of the vehicles. It is clear from the statement of this witness, that it was recorded by the police on 6-7-2013 (originally date was written as 7-7- 2013 but it was changed to 6-7-2013 by overwriting) Ex.P.12, whereas the accident took place on 3-6-2013 i.e., one month prior to the recording of statement of Kishan Singh under Section 161 of Cr.P.C. Further the offending truck was seized on 8-7-2013, Ex.P.8 and the driver was also arrested on 8-7-2013, Ex.P.9 and the mechanical examination of the offending truck was also got done on 8-7-2013, Ex. P.10. No defect was found in the offending truck. The charge-sheet was also prepared and filed on 8-7-2013. Thus, in absence of any clinching evidence as to how the police came to know that the accident was witnessed by Kishan Singh (P.W.3), this Court is of the considered opinion, that in fact Kishan Singh (P.W.3) had not witnessed the accident and is a planted witness. Since, the deceased was a Head Constable in the police department, therefore, mala fide investigation by the investigating officer, is also not ruled out. Further more, as per the F.I.R., Ex. P.1, lodged by Nathilal who was the eye witness, the accident was caused by a four wheeler vehicle but according to Kishan Singh (P.W.3) the accident was caused by a truck.
Thus, considering the discrepancies in the evidence of Kishan Lal (P.W.3) as well as his subsequent conduct of not informing the police, or even not informing the police station,
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in front of which he had passed while alleged chase by him, it is held that Kishan Singh (P.W.3) is not a reliable witness and cannot be believed. No other eye witness was examined by the claimants. Even Nathilal who had informed the police for the first time, was also not examined. Although the owner of the truck had filed his written statement admitting the fact that his driver had caused accident with the offending truck, but could not dare to come to the witness-box for facing the cross-examination. Therefore, the admissions made by defendant no.2 in his written statement cannot be considered as an admission on the part of the owner as the Claims Tribunal had not passed the award on the basis of admission. Therefore, it is held that the claimants have failed to prove that the deceased Kaushal Kumar Singh died in an accident caused by Truck bearing registration No. MP 06 HC 2611. In view of the above-mentioned findings, nothing more is required to be adjudicated. Accordingly, the award dated 16-10-2014 passed by Member, Motor Accident Claims Tribunal, Morena in Claim Case No.318/2013 is hereby set aside. This Court by order dated 24-2-2015 had directed that ''if the entire award amount is deposited then the effect and operation of the impugned award shall remain stayed and the amount shall be deposited in a short term deposit in Nationalized Bank. Disbursement of the aforesaid amount so deposited shall be subject to the orders passed by this Court''. No direction has been given for disbursement of the awarded amount. Therefore, it appears that the amount has not been disbursed. Accordingly, it is directed that the Insurance Company is entitled to get the refund of the amount along with the interest which must have accrued. For any reason, if the amount has been disbursed to the claimants, then the same shall be refunded within a period of 2 months from today, otherwise, the delayed payment shall carry the interest @ 6% p.a. The Appeal succeeds and is hereby Allowed and the Cross objection is hereby Dismissed.