Sanjay Kumar Mohanta And Another vs Nabakishore Mohanta And Another

B.P. Routray, J.

The matter is taken up through hybrid mode.

Heard Mr. R.K. Rout, learned counsel for the claimant – Appellants, Mr. P.K. Mahali on behalf of Mr. S.S. Kanungo, learned counsel for insurer – Respondent No.2 and Mr. B. Singh, learned counsel for owner – Respondent No.1.

Present appeal by the claimants is against the impugned judgment dated 29th March, 2016 of learned 1st MACT, Mayurbhanj, Baripada passed in MAC No.34 of 2015, wherein the tribunal has passed nil award.

The facts of the case are that deceased Arati Mohanta died on 4th April, 2014 at SCB Medical College and Hospital, Cuttack for injuries sustained by her in the motor vehicular accident dated 27th March, 2014 while she was going in the motor cycle bearing registration number OR 04M 4592 being driven by one Dusmanta Mohanta at Kadadiha under Karanjia P.S. Upon death of the deceased at SCB Medical College, Mangalabag UD PS Case No.484 dated 4th April, 2014 was registered. Subsequently, on the report lodged by the husband of Arati (the deceased) namely, Sanjaya Kumar Mohanta (P.W.1), Karanjia P.S. Case No.103 dated 14th August, 2014 was registered and the enquiry report of the UD case merged in the same. The police upon completion of investigation submitted charge-sheet in Karanjia P.S. Case No.103 of 2014 under Section 279/304-A of the I.P.C. against the accused driver namely Dusmanta Mohanta.

In course of enquiry in the Mangalabag UD PS case, the inquest of the dead body was held under Ext.A in which P.W.1, the husband of the deceased put his signature as a witness. According to column 9 of the said inquest report under Ext.A, the reason of death is recorded as follows:-

“On 27.3.2014 at about 7 P.M. his wife Arati Mohanta after finishing school work while returning to house, near Kadadiha, an Indica Car bearing Regn. No. OR-02-AS-8715 being driven in a rash and negligent manner dashed against her from behind as a result of which she fell down on the road sustaining severe head injury and soon thereafter, she was taken by him to Karanjia Govt. hospital for treatment and as her condition became serious, she was referred to S.C.B. Medical College, Cuttack and while undergoing treatment, she died in the morning of 4.4.14.”

But in the claim application, according to the claimants, when the deceased was going as a pillion rider in the motor cycle, the same dashed against a street dog, as a result of which she fell down and sustained injuries leading to her death. P.W.1, 2 and 3, the eye witnesses, examined on behalf of the claimants have stated in the same line. Apart from the oral evidence of those witnesses, other documentary evidence including the F.I.R., charge-sheet, etc. were also adduced from the side of the claimants.

The insurance company though did not examine any witness on their behalf, but adduced the certified copy of the inquest report, seizure list and Zimanama as Ext.A, Ext.B and Ext.C respectively on their behalf.

The tribunal on analysis of evidence adduced from both sides, placed reliance on the endorsement made at column 9 under Ext.A and disbelieved the case of the claimants regarding death of the deceased by fall from the motor cycle without involvement of the car. The tribunal further held that the involvement of the Indica car to cause the accident is established on record and therefore, negligence on the part of the driver of motor cycle bearing registration number OR 04M 4592 is unbelievable, which has been implanted to manage compensation. Resultantly, the tribunal refused to grant any compensation.

It needs to be mentioned at the outset that the tribunal though has framed four issues regarding maintainability of the claim application, negligence and involvement of the offending motor cycle in the accident, and the entitlement of the claimants to get compensation, but did not answer all those issues except the negligence aspect. The tribunal has finally opined that the claimants are not entitled to get any compensation since they have implanted the motor cycle bearing registration number OR 04M 4592 in the accident.

Upon perusal of the analysis made by the Tribunal under issue number 2 and 3, it is seen that the tribunal has disbelieved such oral evidence and submission of charge-sheet by police mainly on the ground that P.W.1, the husband of the deceased is a teacher and therefore, what is mentioned at column 9 of the inquest report is within his knowledge, which he is subsequently trying to avoid. On analysis of such reasons given by the tribunal to disbelieve the case of the claimants, this court is unable agree with the conclusion of the tribunal. It is for the reasons discussed below.

First of all, admittedly, the endorsement made at column 9 of Ext.A, the inquest report is not in the hand-writing of P.W.1. It is not known who has made such endorsement in the inquest report. While cross-examining this P.W.1, the insurer has not asked any question to him to suggest anything that the endorsement at column 9 is in his hand writing.

Secondly, this inquest report under Ext.A was prepared in course of enquiry of Mangalabag UD PS case. Neither the author of this inquest report, i.e. Enquiry Officer in the UD Case, nor the investigating officer in Karanjia P.S. Case No.103 of 2014 has been examined by the insurer to prove the contents of Ext.A. Admission of a document does not make its contents proved automatically. Section 61 of the Indian Evidence Act prescribes the manner in which a primary evidence is to be led in respect of a document. This is not followed in the case at hand and therefore, the contents of Ext.A, particularly at column 9, cannot be said to have proved on record.

Thirdly, it is the consistent case of the claimants that the deceased sustained such injuries due to fall from the motor cycle while going as a pillion rider as the same hit against a street dog. P.W.2 and P.W.3, both are eye witnesses to the occurrence who have categorically stated that the deceased was going as a pillion rider in the motor cycle driven by Dusmanta Kumar Mohanta at the time of accident and fell down from the same. Their evidences remain unassailed in cross-examination. So, in absence of any rebuttal evidence to the oral evidence of direct witnesses, they cannot be disbelieved.

The other ground mentioned by the tribunal that the delay in lodging the F.I.R. has not been explained by the claimant – P.W.1, is not a material ground to disbelieve the F.I.R. story. The standard of evidence and its appreciation in accident compensation cases is different from the standard of proof required in any other case. The Hon’ble Supreme Court in the case of Bimla Devi and others vs- Satbir Singh and others, (2013) 14 SCC 345, have observed that, “in Claim Case, it is difficult to get witnesses, much less eye witness, thus extremely strict proof of facts in accordance with provision of Indian Evidence Act may not be adhered to religiously. Some amount of flexibility has to be given to those cases, but it may not be construed that a complete go-by is to be given to the Indian Evidence Act.”

Further, in the case of Sunita and others vs- Rajasthan State Road Transport Corporation and others, (2020) 13 SCC 486, the Supreme court have 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. It is held that,

“22. 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.”

Thus in the instant case, on analysis of the materials in its entirety, this court being not agreeing with the finding of the tribunal, the impugned judgment is set side. Since the tribunal has not determined the computation of compensation it is felt appropriate to remand back the matter to the tribunal for fresh adjudication.

In view of the discussions made above, it is held that the deceased Arati Mohanta died due to the injuries sustained in the motor vehicular accident dated 27th March, 2014 involving the motor cycle bearing registration number OR 04M 4592 being driven by the accused driver Dusmanta Mohanta. Accordingly issue number 2 and 3 as framed by the tribunal are answered by this court. The matter is remitted back to the tribunal to give its finding on issue number 1 and 4 for the said purpose. The tribunal is directed to conclude the adjudication within two months from the date of appearance of the parties. The parties are directed to appear before the tribunal on 20th March, 2023 along with a certified copy of this order.

The copies of depositions and other documents as filed by Mr. Rout in course of hearing are kept on record.

An urgent certified copy of this order be issued as per rules.

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