Champa & Ors vs Abdul Hamid & Anr

,

This appeal is preferred against the judgment and award dated 13.10.2000 passed by Motor Accident Claims Tribunal, Sirohi in MACT Case",

No.9/1992.,

The appeal arises out of an unfortunate accident that happened on 17.11.1991 wherein Dr. Premaram, who was riding on his Hero Puck moped",

whilst he was going to his private clinic with medicines from Sheoganj to Pindwara was hit by bus, being driven rashly and negligently, belonging to",

Rajasthan Road Transport Corporation, bearing No.RNP-1383, succumbed to his injuries.",

The Tribunal rejected the claim on the ground that eye-witness Kaluram, failed to disclose bus number and could not recognize the driver and",

merely deposed that the accident in-question happened due to rash and negligent driving of bus, which was being driven at a high speed.",

The learned Tribunal while dealing with the claim held that criminal case being the sole basis for involvement of concerned bus and bus driver in the,

accident in-question, thus, no compensation can be granted to the family members of the deceased.",

Counsel for the appellant Mr. Surendra Surana submits that the accident happened on 17.11.1991 and on the same day, a neutral person i.e. Gyani",

Ram lodged FIR carrying bus number and details. Counsel for the appellant further submits that after thorough investigation, challan was filed against",

respondent no.1 i.e. driver of RSRTC bus, who was officially driving the bus in-question at the relevant time. Counsel for the appellant submits that as",

the case is solely based upon FIR and criminal case alone, thus, probably the learned Tribunal rejected the claim but the instant one is a case which",

was much beyond the facts of the FIR. Counsel for the appellant submits that FIR was immediately lodged by un-known person i.e. Gyani Ram, who",

categorically mentioned bus number. Counsel for the appellant has further drawn attention of this Court towards deposition of Kalaram (AW-3), who",

was eye-witness and got injured in the same accident, deposed that he could not note down number of bus but saw the accident happening because of",

rash and negligent driving of bus driver. He was shocked by the accident, thus, could not note down bus number or recognize the bus driver. Counsel",

for the appellant submits that Otaram (AW-4), who is Investigating Officer of the case, categorically pointed out details of bus and pinned Abdul",

Hameed being driver of the RSRTC bus, which was responsible for causing the accident.",

Counsel for the appellant has drawn attention of this Court to the natural corollary that if nothing of that sort was there, then it was for the respondents",

to come out with log-book of bus to refute evidence regarding non-involvement of the bus concerned. On the contrary driver of bus NAW-1 Abdul,

Hameed deposed before the Tribunal that, though, he was plying the bus on the route in-question on 17.11.1991 but he did not cause any accident,",

however, at the same time admits loss of log-book. Counsel for the appellant heavily relied on MTO Report (Exh.A/6), relevant portion whereof reads",

as follows :-,

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RNP1383 344050236564,

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Counsel for the appellant relied upon the judgment of Hon`ble Supreme Court in the case of Sunita & Ors. Vs. RSRTC & Anr., reported in ACTC",

2019 (1) page 227, relevant portion whereof reads as follows :-",

“20. We have no hesitation in observing that such a hyper-technical and trivial approach of the High Court cannot be sustained in a case for,

compensation under the Act, in connection with a motor vehicle accident resulting in the death of a family member. Recently, in Mangla Ram v.",

Oriental Insurance Co. Limited and Ors., (2018) 5 SCC 656, (to which one of us, Khanwilkar, J. was a party), this Court has restated the position as",

to the approach to be adopted in accident claim cases. In that case, the Court was dealing with a case of an accident between a motorcycle and a",

jeep, where the Tribunal had relied upon the FIR and charge-sheet, as well as the accompanying statements of the complainant and witnesses, to",

opine that the police records confirmed the occurrence of an accident and also the identity of the offending jeep but the High Court had overturned,

that finding inter alia on the ground that the oral evidence supporting such a finding had been discarded by the Tribunal itself and that reliance solely on,

the document forming part of the police record was insufficient to arrive at such a finding. Disapproving that approach, this Court, after adverting to",

multitude of cases under the Act, noted as follows:",

“22. The question is: Whether this approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in Bimla",

Devi1 noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person,

standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while",

dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the",

parties, its function is to determine the amount of fair compensation. In paras 11-15, the Court observed thus: (SCC pp. 533-34)",

“11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the",

pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of,

negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the,

Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's,

predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post-mortem",

report vis-a-vis the averments made in a claim petition.,

The deceased was a constable. Death took place near a police station. The post-mortem report clearly suggests that the deceased died of a brain,

injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the",

bus and in the morning found a dead body wrapped in a blanket. If the death of the constable had taken place earlier, it is wholly unlikely that his dead",

body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus -stand and near a police,

station. In such an event, the Court can presume that the police officers themselves should have taken possession of the dead body.",

The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate",

Respondents 2 and 3. The 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 evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently,

before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the",

Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to",

whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and",

3.,

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 partiesâ€​ (emphasis supplied)",

The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and,

standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view",

taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside.",

Following the enunciation in Bimla Devi case, this Court in Parmeshwari v. Amir Chand, (2011) 11 SCC 635 noted that when filing of the",

complaint was not disputed, the decision of the Tribunal ought not to have been reversed by the High Court on the ground that nobody came from the",

office of the SSP to prove the complaint. The Court appreciated the testimony of the eyewitnesses in paras 12 & 13 and observed thus: (Parmeshwari,

case, SCC p. 638)",

The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of",

the High Court is totally conjectural. Umed Singh is not related to the Appellant but as a good citizen, Umed Singh extended his help to the Appellant",

by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be,

disbelieved just because he did not file a complaint himself.,

We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the",

plight of the victim.,

The other so-called reason in the High Court's order was that as the claim petition was filed after four months of the accident, the same is ""a",

device to grab money from the insurance company"". This finding in the absence of any material is certainly perverse. The High Court appears to be",

not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. ...",

It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal : (1980) 3 SCC 457, 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 Indian Penal Code, 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),

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.,

In Dulcina Fernandes2, 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 : (2011) 10 SCC 509, has been adverted to as under: (Dulcina Fernandes case,",

SCC p. 650),

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",

Age of the Deceased,27 Yrs

Multiplier,17

Future Prospects,40%

Deduction on count of Personal Expenses (5

dependents)",¼

Monthly Income of the Deceased,2700

Monthly Income after adding Future Prospects,3780

Monthly Income after deducting Personal Expenses,2835

Yearly Income of the deceased,34020

Total Income after applying Multiplier,578340

Other Conventional Heads,70000

Total Award,"Rs.6,48,340/-