SHRIRAM GENERAL INSURANCE CO LTD Vs NAUSHAD NAZ & ORS

Delhi High Court19 October 2023

Citation2023 SCC OnLine Del 6773

Ratio decidendi

The rule this decision rests on

The credibility of an eyewitness's testimony in a motor vehicle accident claim cannot be impeached merely on the ground that the witness failed to sustain personal injury in the accident or because the police did not formally record the witness's statement, where the witness's account is consistent, corroborated by contemporaneous hospital records and police complaints, and the opposing parties failed to cross-examine the witness on material facts or suggest the witness's non-presence at the accident site. In determining claims under the Motor Vehicles Act, 1988, the applicable standard of proof is preponderance of probability and not proof beyond reasonable doubt; the Act being beneficial legislation enacted to provide solace to victims of motor accidents, the claimant's burden is to establish involvement of the offending vehicle and negligent driving on the balance of probabilities rather than to eliminate all reasonable doubt. Where a Motor Accidents Claims Tribunal has found that a claimant has failed to prove involvement of the offending vehicle but has awarded compensation under Section 163A of the Act, and an appellate court finds that the Tribunal's credibility assessment was erroneous and that the evidence on record establishes involvement of the offending vehicle and negligent driving on the touchstone of preponderance of probability, the claim must be treated as falling under Section 166 of the Act rather than Section 163A, and the matter must be remanded to the Tribunal for determination of the quantum of compensation in accordance with the appellate court's findings on liability.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

$~13 & 14*

IN THE HIGH COURT OF DELHI AT NEW DELHIDate of decision: 19.10.2023

(13)+ MAC.APP. 1066/2018 & CM APPL. 49934/2018 &25655/2019SHRIRAM GENERAL INSURANCE CO LTD..... AppellantThrough: Ms.SunandaNimisha&Mr.Surjan Singh, Adv.versusNAUSHAD NAZ & ORSThrough:

..... RespondentsMs.Aruna Mehta, Adv. for R-1& R-2.

(14)+ MAC.APP. 1159/2018 & CM APPL. 54422/2018 &54849/2019NAUSHAD NAZ & ANR..... AppellantsThrough: Ms.Aruna Mehta, Adv.versusMOHD ASIF & ORS (SHIRIRAM GENERAL INSURANCECO LTD)..... RespondentsThrough: Ms.SunandaNimisha&Mr.Surjan Singh, Adv. forInsurance Company.

CORAM:HON'BLE MR. JUSTICE NAVIN CHAWLANAVIN CHAWLA, J. (ORAL)Signature Not VerifiedDigitally Signed By:SUNILSigning Date:21.10.202316:34:37

MAC.APP. 1066/2018 & 1159/2018

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These cross appeals have been filed challenging the

Award dated 08.08.2018 passed by the learned Motor AccidentsClaims Tribunal (Pilot Court), Karkardooma Courts, Delhi inMACT No. 551/2016 titled Smt. Naushad Naz & Anr. v.Mohd. Asif & Ors.2.

By the impugned Award, the learned Tribunal has held

that the claimants had been unable to prove that the accidenthad taken place due to the offending vehicle, that is, the truckbearing registration no. UP 21 N 1098, being driven in a rashand negligent manner. The learned Tribunal has, therefore, bythe Impugned Award, treated the Claim Petition as one underSection 163A of the Motor Vehicles Act, 1988 (hereinafterreferred to as the ‘Act’) and awarded compensation ofRs.5,00,000/- in favour of the claimants.BACKGROUND FACTS3.

Briefly stated, it was the case of the claimants before the

learned Tribunal that the deceased Sh.Avid @ Abid along withhis wife Naushad, on 07.01.2015, was going on a motorcycle toSirsi. At about 12:30 PM, when they reached Wazid Puram, theoffending vehicle came from the front side being driven in arash and negligent manner by Mohd. Asif (respondent no.1 inMAC.APP. 1159/2018) and hit the motorcycle. The offendingvehicle was being driven on the wrong side of the road as it wastrying to escape the checking by the RTO. Due to the accident,the deceased suffered grievous injuries. He was rushed to theSignature Not VerifiedDigitally Signed By:SUNILSigning Date:21.10.202316:34:37

MAC.APP. 1066/2018 & 1159/2018

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Government Hospital in Sambhal, UP by the wife of thedeceased, and from there he was referred to the GovernmentHospital Moradabad. Thereafter he was taken to the SafdarjungHospital, Delhi, where he unfortunately succumbed to hisinjuries on 19.01.2015. The above Claim Petition was filedclaiming compensation for his death in the motor vehicularaccident.4.

As noted hereinabove, the learned Tribunal held that the

claimants had been unable to prove that the accident had takenplace due to the offending vehicle being driven in a rash andnegligent manner. The learned Tribunal granted compensationof Rs.5,00,000/- in favour of the claimants under Section 163Aof the Act.CHALLENGE BY INSURANCE COMPANY5.

The Insurance Company challenges the above Impugned

Award contending therein that the learned Tribunal erred inawarding compensation under Section 163A of the Act to theclaimants as the claimants had been unable to prove theinvolvement of the offending vehicle in the accident.6.

The learned counsel for the Insurance Company submits

that the wife of the deceased gave her evidence as PW-3 beforethe learned Tribunal. The learned Tribunal, however, held thather testimony does not appear to be trustworthy as aneyewitness. Once her testimony is disregarded, there was noother evidence of the involvement of the offending vehicle inthe accident. She submits that, therefore, compensation, evenSignature Not VerifiedDigitally Signed By:SUNILSigning Date:21.10.202316:34:37

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under Section 163A of the Act, could not have been awarded infavour of the claimants.SUBMISSIONS OF THE CLAIMANTS7.

On the other hand, the learned counsel for claimants

submits that the learned Tribunal has erred in not placingreliance on the testimony of the wife of the deceased (PW-3).She submits that from the Casualty Report of the GovernmentHospital, Sambhal, UP, it was evident that it was the PW-3 whoafter the accident had rushed the deceased to the hospital. Thefather of the deceased- Sh.Mehboob Hassan filed a complaintregarding the accident with the police on 08.01.2015, whereinalso he stated that the wife of the deceased was accompanyingthe deceased at the time of the accident. The FIR was alsolodged based on the said complaint. She submits that merelybecause PW-3 could not prove that she had sustained any injuryin the accident, whereas, in fact, it was never the case of thePW-3 that she had indeed suffered any such injury in the saidaccident, the learned Tribunal has erred in doubting herpresence at the place of the accident.8.

She further submits that the evidence of PW-3 was

consistent and could not be demolished by the InsuranceCompany. She submits that though the driver and the owner ofthe offending vehicle had filed their written statement denyingthe involvement of the offending vehicle in the accident, theynever appeared as witnesses before the learned Tribunal norcross-examined PW-3 on the manner of the accident orSignature Not VerifiedDigitally Signed By:SUNILSigning Date:21.10.202316:34:37

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regarding the factum of the involvement of the offending vehicle in the accident. PW-3 was cross-examined only by the Insurance Company, who also did not give any suggestion to the eyewitness disputing her presence at the site of the accident. She submits that the learned Tribunal has, therefore, erred in converting the Claim Petition from one under Section 166 of the Act and awarding compensation only under Section 163A of the Act. ANALYSIS AND FINDINGS 9.

I have considered the submissions made by the learned

counsels for the parties. 10.

From the Causality Report and from the complaint filed

by the father of the deceased, it is evident that the deceased had been rushed to the hospital immediately after the accident by the wife of the deceased, that is, PW-3. The father of the deceased had also reported to the police on the very next day of the accident that the wife of the deceased was accompanying the deceased at the time of the accident. Though the driver and owner of the offending vehicle filed their written statement denying the involvement of the offending vehicle in the accident, they never appeared as witnesses before the learned Tribunal. They also did not cross-examine the PW-3. As far as the Insurance Company is concerned, it did not even give a suggestion to PW-3 that she was not present at the time of the accident and was not an eyewitness to the same. The statement of PW-3 was consistent throughout and could not be shaken in Signature Not Verified Digitally Signed By:SUNIL Signing Date:21.10.2023 16:34:37

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the cross-examination either. 11.

Merely because PW-3 could not prove any injury

suffered by her in the accident, her testimony cannot be disregarded as being not trustworthy. It is not necessary for a pillion rider to also sustain injuries in an accident. In any case, the Claim Petition was not to make a claim for the injury sustained by PW-3 but for the death of the deceased. 12.

The learned Tribunal has further observed that the

testimony of PW-3 stood shattered in her cross-examination as she failed to answer relevant questions during cross examination regarding the mode and manner of the accident; reporting the matter to the police; driving licence of the deceased; recording of her statement by the police, etc.; and she has also not been made as an eyewitness of the accident in the charge-sheet. The Tribunal observed that her name is not referred to either as complainant or witness of the accident. 13.

I am unable to agree with the above reasoning of the

learned Tribunal. PW-3 in her evidence by way of affidavit had narrated the manner of the accident. Her cross-examination on which the learned Tribunal places reliance to disbelief her testimony, is reproduced hereinbelow:“PW-3: Statement of Ms.Naushad Naz W/o. Late Avid recalled for cross-examination after 31.08.2017 On SA xxxxx by Mr. Vimal Kumar, Adv. for defendant no.3/insurance company At the time of the accident I was going from Sambhal to Moradabad on Pulsar Bike. Signature Not Verified Digitally Signed By:SUNIL Signing Date:21.10.2023 16:34:37

MAC.APP. 1066/2018 & 1159/2018

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There was divider on the road/highway where accident had taken place. The truck had hit our motorcycle from its front side (it was case of head on collusion) and at the time of accident truck was being driving in wrong/opposite direction. Bike was being driven on the left side of the road. I can not tell at what distance from extreme left side of the road the bike was being driven. I do not remember whether police recorded my statement regarding the accident at any point of time. After the accident I was conscious but I was mindless. Since I had seen the offending vehicle on the spot so I had noted down the number of the said vehicle. I do not know by whom the FIR got registered. I cannot tell whether my husband was having DL to drive the bike. It is wrong to suggest that accident was caused due to the negligence of my husband. It is wrong to suggest that I have not noted down the number of offending vehicle. It is wrong to suggest that alleged offending vehicle/truck was not involved in the accident. At the time of accident I was residing at Sambhal with my husband. My husband was working as Tailor with Javed Akhtar @ Guddu who was running a tailoring shop named as S.K. Tailor at Tehsil Road, Sambhal, UP. He was getting salary of Rs.12,000/- per month, initially and at the time of his death his salary was Rs.15,000/- per month. He was working with S K Tailors since June 2013. His salary was increased to Rs.15,000/- in the year 2014 but I cannot tell about the month in which salary was increased. He was getting salary in cash. My husband had studied upto 9th class. My husband was not having any certificate regarding any tailoring course. It is wrong to suggest that my husband was not working as Tailor and earning Rs.15,000/- per month. (Vol. Even father of my husband was working as tailor). It is correct that my husband was not income tax assessee. It is wrong to suggest Signature Not Verified Digitally Signed By:SUNIL Signing Date:21.10.2023 16:34:37

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that I have not spent Rs.80,000/- over the treatment of my husband and further a sum of Rs.20,000/- over conveyance. We had taken rented accommodation at Jagjeet Nagar, Usmanpur, Delhi in 01st September, 2016. It is wrong to suggest that no premises was hired at Inderlok during the treatment of my husband. My husband is survived by me and my daughter aged about 6 years. I have not remarried. It is wrong to suggest that I have filed false and fabricated documents.”

14.

Firstly, it is to be noted that the above cross-examination

is conducted by the Insurance Company and not by the owner or the driver of the offending vehicle. Secondly, in her crossexamination as well, PW-3 not only explains the manner of the accident but also appears to be truthful about the police not recording her statement. Merely because the police did not record her statement though she was an eyewitness to the accident, cannot in any manner prejudice her claim before the learned Tribunal. 15.

Keeping in view the above, in my opinion, the testimony

of PW-3 has been wrongly discredited and has been wrongly found untrustworthy by the learned Tribunal. 16.

PW-3 has clearly stated about the involvement of the

offending vehicle and the manner of the accident. 17.

As the Supreme Court has reiterated in its judgment of

Vimla Devi v. National Insurance Co. Ltd., (2019) 2 SCC 186, it is to be remembered that Motor Vehicles Act, 1988 is a beneficial piece of legislation and has been enacted to give Signature Not Verified Digitally Signed By:SUNIL Signing Date:21.10.2023 16:34:37

MAC.APP. 1066/2018 & 1159/2018

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solace to the victims of a motor accident. In a claim arising out of a motor vehicle accident, the claimant is not to prove the claim beyond reasonable doubt but only on a touchstone of preponderance of probability. As for the present case, the said test was made by the claimants. CONCLUSION 18.

In view of the above, I hold that the involvement of the

offending vehicle and the fact that the accident had taken place with the offending vehicle being driven in a rash and negligent manner on the wrong side of the road was duly established by the claimants. The claimants are, therefore, held entitled to compensation under Section 166 of the Act. DIRECTIONS 19.

This leaves me with two options:i)

To determine the compensation myself; or

ii)

To remand the Claim Petition to the learned

Tribunal for determining the compensation. 20.

As the evidence with respect to the income of the

deceased and other parameters which are relevant for the purposes of determining the compensation, has not been discussed by the learned Tribunal in the Impugned Award, I deem it appropriate to adopt the second option available to me, that is, to remand the Claim Petition to the learned Tribunal for determination of the compensation. 21.

It is noticed that the accident had taken place on

07.01.2015 and more than eight years have since passed. The Signature Not Verified Digitally Signed By:SUNIL Signing Date:21.10.2023 16:34:37

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evidence of the parties already stands recorded before the learned Tribunal. 22.

Accordingly, the learned Tribunal is directed to

adjudicate upon the quantum of compensation within a period of two months of the date of remand, after hearing the counsels for the parties. 23.

The Insurance Company has deposited the awarded

amount along with interest with the learned Registrar General of this Court, in compliance with the order dated 30.11.2018. The said amount along with interest accrued thereon shall be released in favour of the claimants. The same shall be duly accounted for by the learned Tribunal while making the final award pursuant to the remand. 24.

The parties shall appear before the learned Tribunal on

16th November, 2023. 25.

The statutory amount deposited by the Insurance

Company along with interest accrued thereon be released to the Insurance Company. 26.

The appeals are disposed of with the above directions.

27.

There shall be no order as to costs.

28.

The Trial Court Record be returned back to the learned

Tribunal forthwith.

NAVIN CHAWLA, J OCTOBER 19, 2023/rv

Signature Not Verified Digitally Signed By:SUNIL Signing Date:21.10.2023 16:34:37

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