Union of India (UOI) and Others vs Shahnaz and Others

Mansoor Ahmad Mir, J.—This appeal is directed against the award dated 12.05.2003 (hereinafter referred to as impugned award) passed

by Motor Accident Claims Tribunal, Srinagar, in the claim petition No. 107 titled as Mst. Shahnaz and Ors. v. Union of India and Ors., whereby

an award of Rs. 11,08,500/- with 9% interests from the date of application till final realization came to be passed in favour of claimants 1 to 3 and

against the appellants/non-applicants therein.

Appellants have assailed the impugned award on the grounds that impugned award has been passed without any evidence and is illegal on the

face of it. The driver of appellants, Bika Ram, has not driven the vehicle rashly and negligently but in fact it was deceased, scootorist, who has

driven the scooter rashly and negligently. The Motor Accident Claims Tribunal, Srinagar, has illegally and without any evidence decided the issue

No. l in favour of the claimants and saddled the non-applicant with liability.

It is useful to notice the facts of the case herein:

The case of claimants/respondents 1 to 4 is that deceased, namely, Aijaz Hussain Rather, was driving scooter on 8th May, 1998 and coming from

Jawahar Nagar, and the appellant No. 3, Bika Ram, was driving the truck bearing registration No. DEL/3096 of 44th Bn., CRPF rashly and

negligently at the relevant time and hit the scooter. The scootorist, namely, Aijaz Hussain Rather, his wife and child who were pillion riders

sustained injuries. Aijaz Hussain Rather succumbed to the injuries. The claimants claimed compensation to the tune of Rs. 20 lakhs as per break-

up given in para-9 of the claim petition.

Respondents appeared and filed written statement. The following issues came to be framed in the claim petition on 7th August, 1999;-

That whether respondent No. 3 namely Beka Ram Driver has driven the offending vehicle truck bearing registration No. DEL-3096 of 44th Bn.

C.R.P.F. rashly and negligently on 8.5.98 at general road near Indore Stadium, Tagore Hall, Main Gate and thereby hit the deceased namely Ajaz

Hussain Rather who succumbed to injuries ? OPP

If issue No. l is proved in affirmative then, to what amount of compensation the petitioners are entitled to, from whom and in which proportion ?

OPP

Relief.

The parties have lead evidence. Motor Accident Claims Tribunal, Srinagar, after appreciating the evidence and hearing learned Counsel for the

parties passed the impugned award in favour of the claimants/respondents 1 to 3 and against the appellants (non-applicant).

Mr. Khan, learned Counsel for the appellants, argued that the appellant No. 3, Bika Ram has not driven the vehicle i.e. truck bearing

registration No. DEL/3096 rashly and negligently on the date of accident. But in fact the deceased who was driving the scooter rashly and

negligently could not control the speed of the scooter and fell down. The deceased sustained injuries and succumbed to the injuries.

The question is whether the appellants have proved the said fact before the Tribunal?

Petitioners have examined Sajad Ahmad Dar, Fayaz Ahmad Laway, Binder Paul Singh, Iqbal Ahmad Shahmeeri, Ghulam Mohammad ASI and

Mst. Shahnaz.

Respondents have examined H. N. Barroo, driver Bakshi Singh, D.S.Behu, P.D. Gudiya, Sochi Satpal and Bika Ram, appellant No. 3.

The witnesses examined by the claimants/respondents herein have categorically deposed that deceased Aijaz Hussain Rather was coming from

Jawahar Nagar towards Bakshi Stadium on scooter along with his wife and child. The driver of the truck suddenly, near Indoor Stadium, took a

turn and hit the scooter and the scooterist sustained injuries. The Investigating Officer, Binder Paul Singh and other witnesses have deposed that

the accident occurred due to rash and negligent driving of Bika Ram.

The witnesses of the appellants, namely, Hawaldar Driver Bakshi Singh, D.S. Behu, P.D. Gudia and Sochi Satpal have categorically deposed

that they do not remember that how accident occurred and had no knowledge about the occurrence. The other two witnesses Bika Ram and H.N.

Barroo have tried to introduce a story which is not pleaded by the respondents. In para-8 of the written statement, the appellants have taken stand

that Aijaz Hussain Rather was driving scooter perhaps on high speed although he applied break but could not stop the scooter and dashed on the

left side of the vehicle.

H.N. Barroo has deposed that scooterist was following the offending vehicle at a fast speed and while taking a sharp turn could not control the

scooter and was thrown on the ground.

Bika Ram has deposed that scooter and vehicle did not slightly touched each other.

In the given circumstances, the petitioner/respondents herein 1 to 4 have proved that Beka Ram driver of vehicle No. DEL/3096 has driven

the vehicle rashly and negligently on 08.05.1998 and has caused the accident. The learned Presiding Officer has rightly returned the finding and

decided the issue No. l in favour of the claimants.

Appellants have taken a stand that they cannot be fastened with the liability because Beka Ram came to be exonerated by the Court Marshal

and acquitted by the Criminal Court. This aspect has also been rightly thrashed out by the learned Presiding Officer.

The strict proof is required in the criminal proceedings. Charge(s) is(are) to be proved beyond any reasonable doubt whileas proceeding

before the Motor Accident Claims Tribunal are summary in nature and strict proof of evidence is not required. The standard of proof in Criminal

Courts is altogether different as compared to the proof in these proceedings.

It is now well settled law that when the driver is convicted in a regular trial before the Criminal Court, the fact that he is convicted becomes

admissible in evidence in a civil proceeding that it becomes prima facie evidence that the driver was culpably negligent in causing the accident. The

converse is not true because higher degree of culpability is required to bring home an offence.

I am of the considered view that if the accused is acquitted in the criminal case or is exonerated by the Court Marshal that cannot be the

ground for holding that the driver was not negligent in these proceedings. My this view is fortified by the Apex Court judgment in a case titled as

N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and Others, . It is profitable to reproduce relevant portion of para 2 and para 3 of the said

judgment herein:

2...The plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rejected and rightly. The

requirement of culpable rashness u/s 304A, I.P.C. is more drastic than negligence sufficient under the law of tort to create liability. The quantum of

compensation was moderately fixed and although there was, perhaps, a case for enhancement, the High Court dismissed the cross-claims also.

Being questions of fact, we are obviously unwilling to re-open the holdings on culpability and compensation.

Road accidents are one of the top killers in our country, specially when truck and bus driver 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 pain 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 emphasizing this aspect because we are

often distressed by transport operators getting away with it thanks to judicial laxity despite the fact that they do no exercise sufficient disciplinary

control over the driver s 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 parcimony practiced 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 State must appoint sufficient number of tribunals and the High Court 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.

This view is also fortified by the judgment reported in 1979 ACJ 282 : AIR 1977 1735 : 1984 ACJ 525.

It is profitable to reproduce para-8 of the judgment delivered by Karnataka High Court in Vinobabai and Ors. v. K.S.R.T.C. and Anr.

reported"" in 1979 ACJ 282 as under:

It is in the evidence of the driver that he was charge-sheeted before the Magistrate at Badami for the offence committed in the very accident and

that he was convicted and treated under the provision of the Probation of Offenders Act. The Tribunal has not appreciated this aspect at all. In the

case of Nettleship v. Weston, Lord Denning M.R. who delivered the judgment for the Bench in the Court of Appeal has observed at para-5 of the

judgment thus:

So the criminal law is clear. No one would dream of throwing any doubt on it. Mrs. Weston was convicted in accordance with it. The conviction is

admissible in civil proceedings as prima facie evidence of negligence: See Stupple v. Royal Insurance Co. Ltd.

The Apex Court in case Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, has held as

under:

The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable 'hardship' is caused to the plaintiff as the true

cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but

cannot prove how it happened toestablish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle

of res ipsa loquitur. The general purport of the words re ipsa loquitur is that the accident ""speaks for itself or tells its own story. There are cases in

which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to

establish that the accident happened due to some other cause than his own negligence....

On the facts made out the doctrine is applicable and it is for the opponents to prove that the incident did not take place due to their negligence....

The learned Counsel for the appellant while addressing arguments has not challenged the quantum. However, petitioners/claimants have proved

that deceased at the relevant time was posted in Water Works Department and was drawing salary of Rs. 8,063/- per month. The age of the

deceased was 36 years at the relevant time. The learned Presiding Officer has rightly, after deducting one third of his salary has taken loss of

dependency at Rs. 5375/- and applied the multiplier 17. Accordingly, I found no error in the impugned award.

Viewed thus, the appeal merits dismissal which is accordingly dismissed along with all connected CMP(s).