Bimla Devi & Ors vs Himachal Road Transport Corpn. & Ors

Bimla Devi & Ors. ... Appellant

Versus

Himachal Road Transport Corpn. & Ors. ... Respondents

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against a judgment and order dated

22.8.2005 passed by the High Court of Himachal Pradesh, Shimla in FAO

No.127 of 1999 whereby and whereunder an appeal preferred against a

judgment and award dated 28.10.1998 passed by the Motor Accident

Claims Tribunal-II [MACT (I), Nahan] in MAC Petition No.21-NL/2 of

1997, was set aside.

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3. One Jawala Ram, husband of the first appellant herein, was a

Police Constable. He was posted at Police Station Dharampur. On

11.2.1997 at about 7 or 8 am, he was standing near the shop of one Chand

Kishore. A bus bearing registration No.HP-14-3596 owned by the first

respondent was parked there. The second respondent Vijay Kumar was

the driver and the third respondent Om Dutt was the conductor of the

aforementioned bus. Allegedly, the driver of the bus, Vijay Kumar,

reversed the bus without blowing any horn as a result whereof Jawala

Ram died on the spot. Allegedly, conductor also did not bother to check

whether any person was standing behind the bus.

4. Respondents, however, denied and disputed occurrence of the said

accident. According to them, the deceased died the previous evening and

finding the dead body of a person wrapped in a blanket lying at some

distance from the bus; they informed the police personnel, whereafter the

driver was falsely implicated.

5. The factum of accident, thus, being denied and disputed; one of the

issues framed by learned Tribunal on the claim application filed by the

appellants herein for grant of compensation in terms of Section 166 of the

Motor Vehicles Act, 1988 was:

"Whether Sh. Jawala Ram died on 11.2.1997 near Dharampur, due to rash and negligent of Bus No.HP-14-3596 by respondent No.2 and 3

negligent conduct of respondent No.3 as alleged?"

6. The learned Tribunal upon consideration of the evidence adduced

on behalf of the appellant and the first respondent, opined :

(1) Death of Jawala Ram on 11.2.1997 at Dharampur was not disputed.

(2) First Information Report was registered at Police Station,

Dharampur on the said date also stands admitted.

(3) Even if the allegations made in the First Information Report are not

taken into consideration, the death of Jawala Ram in an accident

stood proved by the post mortem examination report (Exhibit-PY)

in terms whereof he had died due to brain injury.

(4) Death of Jawala Ram in an accident has also been proved by Shri

Dharam Pal (PW3) who was an eye-witness to the occurrence.

7. The driver and conductor of the bus admitted their presence at the

scene of occurrence. Vijay Kumar (RW1) alleged that he had seen the

dead body wrapped in a blanket behind the bus when he was still to start

the bus. The Tribunal did not find his statement to be reliable. Bhawani

Dutt (RW2) did not support the version of the respondent as he stated that

the driver and conductor of the bus had gone to the police station and the

people gathered there stated that someone had been lying dead. He, 4

according to the Tribunal, also could not deny positively that the accident

had not taken place because of the use of the bus in question.

It is difficult to believe that the Police Officers would fabricate a

case against the respondents. The learned Tribunal opined:

"Therefore, keeping in view the statement of PW, Dharam Pal, the death of Jawala Ram because of injuries, the presence of the Bus of the respondents and place and time of the occurrence and the other circumstances of the case, I am convinced that the death of Jawala Ram took place after being hit by the Bus when it was being reversed in backward directions. Once, it is so held, the respondents, driver and conductor shall have to be held negligent in reversing the bus in backward directions without blowing horn or whistle or giving indication to the persons standing there. Had the driver and conductor of the bus taken care to blow horn or to forewarn the persons standing there before reversing the bus, Jawala Ram, who was stated to be standing behind the bus would not have been crushed. Consequently, it is held that Jawala Ram had died because of the injuries sustained by him in the course of Bus accident because of rashness and negligence of the respondents, driver and conductor of the Bus."

8. The said issue, on the basis of the aforementioned findings, was

decided in favour of the appellant.

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On an appeal preferred therefrom by the respondents before the

High Court, however, the said finding of fact was reversed by it, inter

alia, opining:

"In the post mortem report there is no details of any such crush injuries of tyre marks in fact the thorax and abdomen region have been found by and large normal. Even to the muscle bones and joints there are no serious injuries. The main injury is to the head only. It is not the case of the claimants that only the head of the deceased was crushed under the tyres. Therefore, the version of the claimants is difficult to believe."

The High Court furthermore held that the deceased might have died

in some accident and the Police officials wrongly lodged the first

information report against the driver of the bus.

Appellant is, thus, before us.

9. Mr. Dinesh Verma, learned counsel appearing on behalf of the

appellant, would submit that having regard to the reasons assigned by the

learned Tribunal, the High Court must be held to have committed serious

error in passing the impugned judgment.

10. Mr. Maheshwari, learned counsel appearing on behalf of the

respondents, however, supported the judgment of the High Court.

11. The post mortem report clearly stated of a head injury. 6

12. 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-`-vis the averments made in a claim petition.

13. 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 a constable has 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.

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14. The learned Tribunal, in our opinion, has rightly proceeded on the

basis that apparently there was absolutely no reason to falsely implicate

the respondent Nos.2 and 3. 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 evidences 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 burden of proof in

terms of the provisions of Section 106 of the Indian Evidence Act 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 the respondent

Nos.2 and 3.

15. 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 8

applied. For the said purpose, the High Court should have taken into

consideration the respective stories set forth by both the parties.

16. The judgment of the High Court to a great extent is based on

conjectures and surmises. While holding that the police might have

implicated the respondents, no reason has been assigned in support

thereof. No material brought on record has been referred to for the said

purpose.

17. For the reasons aforementioned, the impugned judgment cannot be

sustained. It is set aside accordingly. The appeal is allowed. However,

in the facts and circumstances of the case, there shall be no order as to

costs.

.....................................J. [S.B. Sinha]

..................................

...J. [P. Sathasivam] New Delhi;

April 15, 2009