Kana Ram vs Prema Ram

Pratap Krishna Lohra, J.—Appellant-claimants have filed this appeal under Section 173 of Motor Vehicles Act, 1988 (for short, ''the Act of 1988'') for assailing the impugned judgment and award dated 20.11.1998 passed by the Motor Accident Claims Tribunal, Barmer (for short, ''the learned Tribunal'') whereby their Claim Petition No. 157/1997 under Section 166 of the Act of 1988 is dismissed by the learned Tribunal.

Succinctly stated, the facts of the case are that on 19.03.1997 when deceased-Kutala Ram was travelling in truck No. RJ-04/G-0781 as Khalasi on the route of Pilibanga to Suratgarh at about 8.30 P.M., the truck dashed with a Jonga Jeep No. RJ-21-C-0076. The accident occurred due to rash and negligent driving of the truck by its driver Prema Ram and due to its high speed, the driver lost control on the vehicle and hit Jonga from behind and thereafter the truck fell down to a nearby deep splash area and submerged into water up to its bumper. The impact of accident was so severe that deceased Kutla Ram suffered grave and serious injuries on his head and eventually succumbed to the injuries on the spot. The accident was immediately reported to Police Station, Suratgarh. On the strength of these averments, the appellant-claimants quantified the total amount of compensation to the tune of Rs. 22 Lacs in their claim petition by asserting that deceased was employed as a Khalasi earning monthly wages of Rs. 3,000/- and at the time of his death he was 45 years old. Under different heads, the total amount of compensation is worked out.

On behalf of respondents No. 1 & 2, reply to the claim petition is submitted. The reply to the claim petition is of bare denial about some of the factual aspects but while adverting to the cause of accident, the respondents have pleaded that accident has occurred not due to negligence of the driver of the truck but on account of some negligence or overt act of deceased Kutla Ram. The facts regarding quantum of compensation were also refuted. The Insurer has also submitted its reply almost on the same lines as that of the reply of the other respondents. The respondent-Insurance Company has denied that deceased Kutla Ram was working as Khalasi with the offending vehicle. As regards the factum of insurance of the offending vehicle, the reply of the Insurance Company is evasive inasmuch as neither it has admitted the factum of insurance, nor it has denied the same. The amount of compensation is also seriously disputed. Some other legal objections were also incorporated in the pleadings.

On the basis of pleadings of rival parties, the learned Tribunal settled three issues for determination. The appellant-claimants examined three witnesses, and on behalf of respondents one witness appeared and testified on oath. The learned Tribunal, while adjudicating the claim decided Issue No. 1 regarding rash and negligent driving of the truck by its driver against the appellants and in favour of respondents. While recording its finding, the learned Tribunal has disbelieved the version of the alleged eye witness, and has also observed that as the first informant, who has lodged FIR, has not appeared in the witness box, contents of the FIR cannot be relied upon. In totality, the learned Tribunal has found that there is no proof about the fact that accident has occurred due to rash and negligent driving of the truck by its driver. While taking note of the finding on Issue No. 1, no adjudication as such is made by learned Tribunal on Issue No. 2 regarding quantum of compensation and the same is also decided against the appellants. Adverting to Issue No. 3, the learned Tribunal on evaluation of evidence and other materials available on record has found that at the time of accident offending vehicle truck was insured with the respondent-Insurance Company, and accordingly, the said issue is decided in favour of appellant-claimants.

Learned counsel for the appellants Mr. Khatri has vehemently argued that learned Tribunal has seriously erred in deciding Issue No. 1 against the appellants inasmuch as umpteen material was available on record to show that accident has occurred and as a consequence of accident, Kutla Ram has died. Mr. Khatri submits that proceedings under Section 166 of the Act of 1988 are akin to summary proceedings and standard of proof in these proceedings are not at par with a criminal case. Elaborating his submission, learned counsel has urged that conclusions in such proceedings can be drawn on the basis of preponderance of probabilities and it is not necessary for the appellant-claimants to prove factum of accident and rash and negligent driving of the offending vehicle by its driver beyond all reasonable doubts. According to Mr. Khatri, learned Tribunal has misdirected it while deciding Issue No. 1 without considering the challan papers, which were prima facie proof about the occurrence of accident and rash and negligent driving of the offending vehicle by its driver. Lastly, Mr. Khatri has urged that as the finding and conclusion of the learned Tribunal on Issue No. 1 are per se bad in law and contrary to the materials available on record, rejection of the claim by the impugned award cannot be sustained.

Per contra Mr. Rathore, learned counsel for the Insurance Company, submits that learned Tribunal has examined the matter threadbare and thereafter recorded its finding against the appellants that accident has not occurred due to rash and negligent driving of the offending vehicle by its driver. Stoutly defending the impugned award, Mr. Rathore submits that in want of proof about rash and negligent driving of the offending vehicle by its driver, the learned Tribunal has rightly dismissed the claim petition, which calls for no interference in this appeal.

I have heard learned counsel for the parties and perused the impugned award and scanned the entire record of the learned Tribunal.

After giving my thoughtful consideration to the arguments advanced at bar and on thorough examination of the evidence and other materials on record in conjunction with the impugned award, in my considered opinion, the learned Tribunal while deciding Issue No. 1 has not at all cared to examine the available material. The conclusion of the learned Tribunal that A.W. 3-Kishna Ram who has appeared in the witness box as eye witness is a doubtful witness is wholly perverse. It is not necessary that in proving an accident the informant of FIR is to be examined as a witness because any other witness can prove occurrence of the accident. The learned Tribunal, while deciding Issue No. 1, has in fact applied the parameters which are to be pressed into service vis-a-vis a criminal trial, and not a case of accident claim under Section 166 of the Act of 1988. It is trite that in accident claim cases strict rules of evidence are not applicable and standard of proof in such trials is not akin to a criminal trial. The conclusion in such trials on any issue can be drawn on the basis of preponderance of probabilities. In view of ocular witness appeared on behalf of appellant-claimants and the other umpteen material available on record to prove the factum of accident the learned Tribunal has seriously erred in deciding Issue No. 1 against the appellant and in favour of respondents. The finding on Issue No. 1 is based on mere ipse dixit of the learned Tribunal, which cannot be sustained. As the finding on Issue No. 2 is based on the adverse finding against the appellants on Issue No. 1 and as a matter of fact learned Tribunal has not even cared to examine that issue in the light of evidence and other materials available on record, the said finding too cannot be sustained.

In totality, in my considered opinion, the impugned award cannot be sustained and same is hereby quashed and set aside. The matter is remanded back to the learned Tribunal for its decision afresh strictly in accordance with law.

The original claim was laid by the appellant-claimants in the year 1997, therefore it is expected of the learned Tribunal to decide the same as expeditiously as possible preferably within a period of six months from the date of receipt of the record. The learned Tribunal shall also make endeavor to summon the respective parties before proceedings with de novo trial from the stage of conclusion of evidence.

Let the record of the learned Tribunal be sent to the learned Tribunal forthwith. No order as to costs.