Sunita And Others vs Rajasthan State Road Transport Corporation And Another

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1665 OF 2019 (Arising out of SLP (Civil) No. 33757 of 2018)

Sunita & Ors. …Appellants

:Versus: Rajasthan State Road Transport Corporation & Anr. ….Respondents

JUDGMENT

A.M. Khanwilkar, J.

1. Leave granted.

2. The captioned appeal assails the decision of the High

Court of Judicature for Rajasthan, Jaipur Bench, dated 25 th

July, 2018 in S.B. Civil Miscellaneous Appeal No. 521 of

2017, whereby the appeal filed by respondent No.1 (The

Rajasthan State Road Transport Corporation) owner of the Signature Not Verified Digitally signed by NEETU KHAJURIA offending vehicle, was allowed. The High Court was pleased Date: 2019.02.14 17:50:52 IST Reason:

to set aside the Award passed by the Motor Accident Claims 2

Tribunal, Sawai Madhopur (for short “the Tribunal”) in

favour of the appellants/claimants for the death of their

family member, Sitaram and consequently dismissed the

SBCMA No.581/2017 filed by the appellants for

enhancement of the compensation amount granted by the

Tribunal.

3. Briefly stated, on 28th October, 2011 at around 7 A.M.,

Sitaram (husband of appellant No.1 and father of appellant

Nos.2 and 3, minor children) was riding a motorcycle,

bearing registration number RJ­25 SA 6923, along with a

pillion rider, one Rajulal Khateek, when the motorcycle

collided with a bus coming from the opposite direction

bearing registration number RJ­26/P.A. 0042, owned by

respondent No.1 and rashly and negligently driven by

respondent No.2. The accident resulted in the death of

Sitaram and severe injuries to the pillion rider, Rajulal

Khateek. Thereafter, the appellants and the parents of the

deceased Sitaram filed two separate petitions before the

Tribunal seeking compensation for the death of Sitaram,

who was a senior teacher in a Government school, from the 3

respondents, to the tune of Rs.2,62,02,408/­ and

Rs.1,13,42,984/­, respectively.

4. The respondents resisted the said claim petitions. They

denied that the offending bus had caused the accident. They

contended that the accident was caused due to the mistake

and negligence on the part of the deceased Sitaram himself

as he was riding on the wrong side of the road and he did

not know how to ride the motorcycle. He did not have a

valid driving licence and was not wearing a helmet at the

time of the accident, which was in violation of traffic rules.

The respondents also doubted the validity of the evidence

and witnesses on record.

5. The Tribunal in its judgment dated 14th December,

2016, extensively analysed the evidence on record. It

considered the evidence of the deceased’s wife Sunita

(appellant No.1 herein), who deposed about the accident

which resulted in Sitaram’s death. The father of Sitaram,

Mool Chand Kirad (A.D.3), also deposed about the accident

of the offending bus with the motorcycle causing the death 4

of Sitaram at the spot of the accident. The Tribunal also

considered FIR No.247/2011 (Exh.1) and charge­sheet

(Exh.2) filed against respondent No.2 for offences

punishable under Sections 279, 337 and 304A of the Indian

Penal Code (‘IPC’) and Sections 134/187 of the Motor

Vehicles Act (for short “the Act”). It noted that the

respondents had not challenged the FIR or the charge­sheet

before any authority.

6. The Tribunal also examined the deposition of

Bhagchand Khateek (A.D.2), a witness to the incident who

deposed that he had gone to his brother’s house at Shivad

village, one day prior to the date of the accident. At the time

of the accident, he had gone to relieve himself and was

walking on the left side of the road when he saw the

motorcycle with number RJ 25 SA 6923, which was also on

the left side of the road, being hit by the offending bus

bearing registration No. RJ­26/P.A. 0042, being driven at a

high speed coming on to the wrong side of the road,

resulting in the instant death of the rider of the motorcycle.

He further deposed that the name of the driver of the 5

offending bus was Banwari (respondent No.2). In his cross­

examination, Bhagchand revealed that he did not see

Banwari (respondent No.2) after the accident and further,

that there was a pillion rider on the motorcycle who was a

man, but he couldn’t identify the man’s age.

7. The respondents challenged the evidence of

Bhagchand (A.D.2) on the ground that his name was not

mentioned in the list of witnesses set out in the charge­

sheet (Exh.2) and could not have been near the spot when

the accident occurred. For, he was a resident of Pakhala

village, which was 3 (three) Kilometres away from the

alleged accident spot. Despite these objections, the Tribunal

accepted the veracity of Bhagchand’s deposition. It held that

not all the eye­witnesses to the incident needed to be named

in the charge­sheet and that the respondents had failed to

ask Bhagchand any question during the cross examination

so as to cast any doubt on the veracity of his statement.

Further, the respondents had also failed to ask Bhagchand

about giving any statement to the police. Bhagchand had

deposed that on the day of incident, he was at his brother’s 6

house in Shivad village, which did not preclude him from

being an eye­witness to the incident.

8. The Tribunal then noted that respondent No.2 driver of

the offending bus, Banwari Lal, had not been examined as a

witness by the respondents. Additionally, it found that the

site map of the accident (Exh.3) showed that the accident

had occurred at a turning in the road, and yet the offending

vehicle was driven at a high speed. This aspect was read

with the unchallenged evidence of the witness Bhagchand

Khateek (A.D.2), who inter alia deposed that at the time of

the accident, the offending bus was being driven recklessly

at a high speed and also that the respondents had failed to

ask the said witness Bhagchand any question about the

purported negligence of the rider of the motorcycle, Sitaram.

Further, the respondents had failed to show that they had

challenged the filing of the charge­sheet (Exh.2) against

respondent No.2 driver of the offending vehicle. Finally, the

Tribunal adverted to the post­mortem report (Exh.4)

wherein it was recorded that the deceased had died due to 7

shock arising from various fractures on his body. The

Tribunal also took into account the notice under Section

134 of the Act (Exh.7), wherein respondent No.2 had not

made any statement that the accident had occurred due to

the negligence of the motorcycle rider. On a combined

reading of the aforesaid evidence, the Tribunal held that

there was no negligence on the part of the deceased

Sitaram, while riding the motorcycle and that he was fatally

hit by the bus being driven recklessly and at a high speed

by respondent No.2.

9. The Tribunal also examined the notice under Section

133 of the Act (Exh.6) in which the Assistant Transport

Inspector, Tonk Bus Depot, stated that respondent No.2

was the driver of the offending bus bearing registration

number RJ­26/P.A. 0042. It then examined the notice

under Section 134 of the Act (Exh.7), wherein respondent

No.2 stated that the offending bus bearing registration

number RJ­26/P.A. 0042 was being operated by him on the

date and place of the accident. The Tribunal thus concluded

that respondent No.2 was under the employment of 8

respondent No.1 at the time of the accident and was driving

the offending bus which caused the accident.

10. On the basis of the aforesaid findings and

observations, the Tribunal partly allowed the two claim

petitions. After deducting income tax payable on the

income received by Sitaram, the Tribunal awarded

compensation of Rs.48,33,235 (Rupees Forty Eight Lakh

Thirty Three Thousand Two Hundred and Thirty Five only)

jointly and severally to the appellants and the parents of

Sitaram, along with interest. The Tribunal observed that

there was evidence on record to show that Sunita (appellant

No.1) wife of the deceased was having estranged relations

with her husband and thus ordered that the compensation

be divided in such a way that the appellants herein would

receive Rs.38,33,235 (Rupees Thirty Eight Lakh Thirty

Three Thousand Two Hundred and Thirty Five only) and the

remaining amount of Rs.10,00,000 (Rupees Ten Lakh only)

would be given to the parents of the deceased. 9

11. The appellants, aggrieved by the deduction of income

tax from the calculated income of the deceased, filed S.B.

Civil Miscellaneous Appeal No.581 of 2017 while the

respondents filed two appeals viz. S.B. Civil Miscellaneous

Appeal No.521 of 2017 and S.B. Civil Miscellaneous Appeal

No.522 of 2017, before the High Court of Rajasthan, Jaipur

Bench. Vide a common judgment dated 25 th July, 2018, the

High Court set aside the Tribunal’s judgment in entirety, on

the grounds that non­examination of the pillion rider,

Rajulal Khateek, was fatal to the case of the appellants,

that the witness Bhagchand (A.D. 2) was unreliable and his

evidence could not be reckoned and that the site map of the

accident (Exh.3) showed that the deceased Sitaram was

riding his motorcycle on the wrong side of the road at the

time when the accident occurred, thus, proving that it was

Sitaram, and not respondent No.2 (bus driver), who was

guilty of negligence. The High Court thus allowed the two

appeals filed by the respondents and set aside the

Tribunal’s judgment, and consequently dismissed the

appeal filed by the appellants.

10

12. We have heard Mr. Anuj Bhandari, learned counsel

appearing for the appellants and Mr. S.K. Bhattacharya,

learned counsel appearing for the respondents. Mr.

Bhandari submits that the Motor Accident Claims are

summary proceedings so as to adjudicate the adequate

amount of compensation in case of an accident and that a

claim under the Act has to be decided on the touchstone of

preponderance of probability rather than on the standard of

proof beyond reasonable doubt which applies in criminal

matters. He submits that evidence of Bhagchand (A.D.2)

was justly accepted by the Tribunal and the High Court

discarded the same on specious ground that he was not

cited as a witness in the criminal case registered by the

local police in respect of the subject accident and was

unable to tell the age of the pillion rider. Further, the non­

examination of a witness cited in the charge sheet would not

be fatal to the appellant’s claim and the entire claim could

not be rejected merely on such ground. Besides, the

statement of the pillion rider Rajulal Khateek, as recorded

by the police under Section 161 of the Criminal Procedure

Code (‘CrPC’), clearly stated that the offending bus was 11

being driven in a rash and negligent manner and on the

wrong side of the road and although this witness has not

been examined in these proceedings, his statement

nevertheless remained on the record as part of the final

report filed under Section 173 CrPC and hence, that could

not be discarded merely for lack of examination of the said

witness.

13. Mr. Bhandari also submits that on the issue of

negligence by the rider of the motorcycle and the said

motorcycle being driven on the wrong side of the road, the

High Court came to a diametrically opposite finding from

the Tribunal, merely by reference to the site plan, on the

basis of conjuncture and surmises and in complete

disregard of the other evidence and, in particular, the

factual position as set out in the site plan (Exh.3). He

submits that the Tribunal had justly opined that the site

plan indicated that the offending bus was being driven at a

high speed and after hitting the motorcycle, it went further

ahead and rammed into an electricity pole off the road, well 12

past the accident spot. The Tribunal’s judgment was a well­

reasoned decision and a plausible view of the matter. Thus,

the High Court committed grave illegality in setting aside

the said decision. He relied upon Kusum Lata and Ors. Vs.

Satbir and Ors.1, Bimla Devi and Ors. Vs. Himachal

Road Transport Corporation and Ors.2, United India

Insurance Company Limited Vs. Shila Datta and Ors.,3

and Dulcina Fernandes and Ors. Vs. Joaquim Xavier

Cruz and Anr. 4, in support of his arguments.

14. Per contra, Mr. S.K. Bhattacharya, learned counsel for

the respondents, argues that the Tribunal’s decision was

wholly untenable. Not only did the appellants failed to

examine any independent witness to the case but also, the

testimony of Bhagchand (A.D. 2) was not credible as neither

was his name set out in the list of witnesses nor could he

identify the age of the pillion rider on the motorcycle.

However, the same witness could clearly identify both, the

1 (2011) 3 SCC 646 2 (2009) 13 SCC 530 3 (2011) 10 SCC 509 4 (2013) 10 SCC 646 13

number of the motorcycle and the number of the offending

bus, thus indicative of the fact that the witness was tutored

and not a natural witness. Mr. Bhattacharya submits that

the Tribunal’s opinion, that not all witnesses named in the

charge­sheet were required to be presented by the

investigating agency rather, only the spot witnesses were

required, was contradictory, since the pillion rider on the

motorcycle, Rajulal Khateek, was mentioned as a witness in

the charge­sheet but the said person was not presented for

examination.

15. Mr. Bhattacharya further argues that the two

principles applicable to the assessment of evidence in

matters of reckless driving and negligence are res ipsa

loquitor and preponderance of probability. That principle

casts a burden on the appellants/claimants to show that

the deceased Sitaram was not negligent in riding his

motorcycle. The facts, however, indicate that the accident

occurred in the middle of the road and although the

offending bus was being driven in the middle of the road, 14

the fault lay with the lighter vehicle namely, the motorcycle.

Merely because the bus was being driven fast, it does not

follow that the same was also being driven negligently. The

evidence on record lacked basic requirements to prove the

guilt of respondent No.2 driver, let alone on the

preponderance of probability and there was no evidence to

indicate the callousness or negligence of the bus driver.

There was no assessment of contributory negligence on the

part of the deceased Sitaram and the appellants failed to

prove any negligence on behalf of the respondents.

16. Finally, Mr. Bhattacharya submits that the

compensation awarded by the Tribunal to the parents of the

deceased Sitaram was incorrect since there was no evidence

on record to show that the parents were dependent on the

deceased or that they were staying with him. Sitaram was

admittedly not a bachelor and was not staying with his

parents. While the parents did have the right to filial

consortium, however, compensation under such head was

to be awarded separately and not on a structured basis. 15

17. We have cogitated over the above submissions and

have examined the relevant record. The pivotal question is

about the correctness of the approach of the High Court in

setting aside the findings of fact recorded by the Tribunal.

Further, whether the circumstances emanating from the

evidence produced by the parties justify the conclusion

reached by the High Court on the factum of negligence on

the part of the motorcycle rider, the deceased Sitaram, in

causing the accident with the offending bus driven by

respondent No.2.

18. Indeed, we are conscious of the scope of an appeal

under Article 136 of the Constitution of India. This Court

ordinarily does not re­examine or re­appreciate the

evidence. But it is certainly open to this Court to interfere if

the findings recorded in the judgment under appeal are

found to be manifestly wrong or perverse.

19. We may immediately turn to the manner in which the

well­considered and exhaustive judgment of the Tribunal

running into over 24 pages came to be reversed by the High 16

Court, if we may say so, in a cryptic manner in 5 pages. The

relevant portion of the High Court judgment under appeal,

after recording facts and submissions of the counsel, reads

thus:

“In order to prove Issue No.1, claimants examined AW­2 Bhagchand. The said witness deposed that on 28.10.2011, while he was returning after answering the call of nature, he saw that a motorcycle was coming from village Manhapura side. The Roadsways but came from opposite direction and struck against the motorcycle. As a result, one person, who was sitting on the motorcycle died.

In his cross­examination, he deposed that one more person was also sitting on the motorcycle. However, he could not tell if the said person was young, old or a child.

FIR Exhibit­1 was lodged by Kailash Chand with regard to the accident in question. A perusal of the same reveals that the motorcycle was being driven by Sita Ram and Raju Lal Khateek was sitting on the pillion seat. Best eye­witness in the present case can be said to be Raju Lal Khateek, who was travelling with the deceased at the time of accident. However, Raju Lal Khateek has not been examined by the claimants before the Tribunal. The name of Bhagchand is not shown in the list of witnesses as an eye­witness in the criminal case. In the criminal case, Raju Lal Khateek has been shown as an eye­witness. A perusal of the site plan Exhibit­3 reveals that the bus was going on its correct side of the road, whereas, the motorcycle was coming on the wrong side of the road, had struck against the bus.

In the facts and circumstances of the present case, no reliance can be placed on the statement of AW­2 Bhagchand, who had been examined by the claimants as an eye­witness to the accident. The said witness could not even tell in his cross­examination with regard to the age of the person, who was sitting on the pillion seat. Thus, the learned Tribunal fell in error in deciding Issue No.1 in favour of the claimants. Accordingly, finding of the 17

Tribunal on Issue No.1 is reversed and the said issue is decided against the claimants.”

This is the only analysis/discussion in the entire judgment

to reverse the exhaustive analysis done by the Tribunal to

which we have set out in brief in paragraphs 5 to 9 above.

The thrust of the reasoning given by the High Court rests on

the unreliability of the witnesses presented by the

appellants: first, that the evidence given by Bhagchand

(A.D.2) was unreliable because he was not shown as a

witness in the list of witnesses mentioned in the charge

sheet filed by the police and that the said witness could not

identify the age of the pillion rider, Rajulal Khateek. Second,

the said pillion rider himself, Rajulal Khateek, who was the

“best” witness in the matter, was not presented for

examination by the appellants. The High Court also relies

on the site map (Exh.3) to record the finding on the factum

of negligence of the deceased Sitaram in causing the

accident which resulted in his death.

20. We have no hesitation in observing that such a hyper­

technical and trivial approach of the High Court cannot be 18

sustained in a case for compensation under the Act, in

connection with a motor vehicle accident resulting in the

death of a family member. Recently, in Mangla Ram Vs.

Oriental Insurance Company Limited and Ors.5, (to

which one of us, Khanwilkar, J. was a party), this Court has

restated the position as to the approach to be adopted in

accident claim cases. In that case, the Court was dealing

with a case of an accident between a motorcycle and a jeep,

where the Tribunal had relied upon the FIR and charge­

sheet, as well as the accompanying statements of the

complainant and witnesses, to opine that the police records

confirmed the occurrence of an accident and also the

identity of the offending jeep but the High Court had

overturned that finding inter alia on the ground that the oral

evidence supporting such a finding had been discarded by

the Tribunal itself and that reliance solely on the document

forming part of the police record was insufficient to arrive at

such a finding. Disapproving that approach, this Court,

after adverting to multitude of cases under the Act, noted as

follows:

5 (2018) 5 SCC 656 19

“22. The question is: Whether this approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in Bimla Devi6 noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. In paras 11­15, the Court observed thus: (SCC pp. 533­34) “11. 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 post­mortem report vis­à­vis the averments made in a claim petition.

12. The deceased was a constable. Death took place near a police station. The post­mortem 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 the constable had 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 bus­stand 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.

13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was 6 Supra at footnote 2 20

absolutely no reason to falsely implicate Respondents 2 and 3. The 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.

14. Some discrepancies in the evidence 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 the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 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 Respondents 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 applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.” (emphasis supplied)

The Court 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.

Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside.

23. Following the enunciation in Bimla Devi case, this Court in Parmeshwari v. Amir Chand7 noted that when filing of the complaint was not disputed, the decision of the Tribunal ought not to have been reversed by the High Court on the ground that nobody came from the office of the SSP to prove the complaint. The Court appreciated

7 (2011) 11 SCC 635 21

the testimony of the eyewitnesses in paras 12 & 13 and observed thus: (Parmeshwari case, SCC p. 638) “12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor’s chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.

13. The other so­called reason in the High Court’s order was that as the claim petition was filed after four months of the accident, the same is “a device to grab money from the insurance company”. This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. …”

24. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal8, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in para 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus: (SCC pp. 458­59) “3. Road accidents are one of the top killers in our country, specially when truck and bus drivers 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

8 (1980) 3 SCC 457 22

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 plain 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 emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers 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 no­fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised 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 States must appoint sufficient number of tribunals and the High Courts 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.”

25. In Dulcina Fernandes9, this Court examined similar situation where the evidence of claimant’s eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi. In paras 8 & 9

9 Supra at footnote 4 23

of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta10, has been adverted to as under: (Dulcina Fernandes case, SCC p. 650) “8. In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three­Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10) ‘10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.

* * *

(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. …

(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.’

9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, SCC p. 519) ‘10. … We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.’”

In para 10 of Dulcina Fernandes, the Court opined that non­examination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability.”

10 (2011) 10 SCC 509 24

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.

21. In the present case, we find that the Tribunal had

followed a just approach in the matter of appreciation of the

evidence/materials on record. Whereas, the High Court

adopted a strict interpretation of the evidence on the

touchstone of proof beyond reasonable doubt to record an

adverse finding against the appellants and to reverse the

well considered judgment of the Tribunal in a cryptic

manner.

25

22. Reverting to the factual matrix, the actual occurrence

of the accident between the motorcycle driven by Sitaram

bearing registration number RJ 25 SA 6923 coming from

one side and a bus belonging to respondent No.1 (the

Rajasthan State Road Transport Corporation) bearing

registration number RJ­26/P.A. 0042 coming from the

opposite direction, is duly proved. The Tribunal has relied

upon the uncontroverted evidence of witnesses A.D.1 and

A.D. 3, and the documents presented by them, especially

FIR No. 247/2011 (Exh. 1) and charge­sheet (Exh.2) against

one Banwari Lal Bairwa (respondent No.2), charging him

with offences under Sections 279, 337 and 304A of the IPC

and Sections 134/187 of the Act, to establish that on

28.10.2011 at around 7 A.M., Sitaram, along with pillion

rider Rajulal Khateek, was riding on a motorcycle bearing

number RJ 25 SA 6923 from village Bapuee to Chaut ka

Barwad for Daug, to his sister, when, near Mahapura tri­

section, bus number RJ­26/P.A. 0042 belonging to

respondent No.1 (the Rajasthan State Road Transport 26

Corporation) coming from the opposite direction hit the

motorcycle from the front, resulting in the death of Sitaram.

23. The Tribunal had justly accepted the appellants’

contention that the respondents did not challenge the

propriety of the said FIR No. 247/2011 (Exh. 1) and charge­

sheet (Exh. 2) before any authority. The only defence raised

by the respondents to this plea was that the said FIR No.

247/2011 was based on wrong facts and was filed in

connivance between the appellants/complainants and the

police, against which the respondents complained to the in­

charge of the police station and the District Superintendent

of Police but to no avail. Apart from this bald assertion, no

evidence was produced by the respondents before the

Tribunal to prove this point. The filing of the FIR was

followed by the filing of the charge­sheet against respondent

No.2 for offences under u/Sections 279, 337 and 304A of

the IPC and Sections 134/187 of the Act, which, again,

reinforces the allegations in the said FIR insofar as the

occurrence of the accident was concerned and the role of

respondent No.2 in causing such accident. Be that as it 27

may, the High Court has not even made a mention, let alone

record a finding, of any impropriety against FIR 247/2011

(Exh. 1) or charge­sheet (Exh. 2) or the conclusion reached

by the Tribunal in that regard. Yet, the FIR and the Charge­

sheet has been found to be deficient by the High Court.

24. Before the Tribunal, respondent No.1 has neither

denied that respondent No.2 was in its employment at the

time of the accident nor has it denied that respondent No.2

was driving the offending bus no. RJ­26/P.A. 0042 at the

time of the accident. The Tribunal has also referred to the

Post­mortem report (Exh.4) which establishes that Sitaram

died due to shock arising from various fractures on his

body, which, undoubtedly, were rendered due to his

accident with the offending bus. All of the aforesaid evidence

remained uncontroverted. While the Tribunal has accepted

these depositions and the evidence presented in that regard,

the High Court has, surprisingly, not even referred to it or

even the numerous documents presented by the said

witnesses as evidence, apart from a passing reference to FIR

247/2011 (Exh.1).

28

25. The Tribunal’s reliance upon FIR 247/2011 (Exh. 1)

and charge­sheet (Exh. 2) also cannot be faulted as these

documents indicate the complicity of respondent No.2. The

FIR and charge­sheet, coupled with the other evidence on

record, inarguably establishes the occurrence of the fatal

accident and also point towards the negligence of the

respondent No.2 in causing the said accident. Even if the

final outcome of the criminal proceedings against

respondent No.2 is unknown, the same would make no

difference atleast for the purposes of deciding the claim

petition under the Act. This Court in Mangla Ram (supra),

noted that the nature of proof required to establish

culpability under criminal law is far higher than the

standard required under the law of torts to create liability.

26. Accordingly, we have no hesitation in upholding the

finding recorded by the Tribunal that there was an accident

on 28­10­2011 at around 7AM between the motorcycle

driven by Sitaram bearing registration number RJ 25 SA

6923 and a bus belonging to respondent No.1. (the 29

Rajasthan State Road Transport Corporation) bearing

registration number RJ­26/P.A. 0042 coming from the

opposite direction and being driven rashly and negligently

by respondent No.2, which resulted in the death of Sitaram.

27. The next question is whether the purported

shortcomings in the evidence of Bhagchand Khateek (A.D.2)

and the lack of evidence of the pillion rider on the

motorcycle, Rajulal Khateek, would be fatal to the

appellants’ case. As regards the evidence of Bhagchand, the

High Court found that the deposition of the said witness

was unreliable because his name was not mentioned in the

list of witnesses in the criminal proceedings and also

because he was unable to tell the age of the pillion rider.

Besides, the said witness lived in Pakhala village, which was

3 (three) kilometres away from the accident spot and hence,

he could not have been near the said spot when the

accident occurred. The Tribunal had dealt with these

objections quite substantially and, in our opinion, correctly,

in its judgment, wherein it records:

30

“ In the present case the petitioners have got examined the eye­witness A.D.2 Bhag Chand son of Ram Dev. Admittedly the name of the witness Bhag Chand is not mentioned in the list of witnesses in exhibit­2 charge sheet but if the interrogation with this witness is perused then the opponent in order of not considering this witness as eye­witness, has not asked about giving police statement or not having his name in the list of witnesses. The witness A.D.2 Bhag Chand Khateek, in interrogation on behalf of opponents has accepted this that he neither knows Banwari nor after the incident he has seen Banwari.

During interrogation the statement of the witness has been that I was near the place of incident itself. That time I was returning after relieving myself. The argument of the opponents has been that the witness Bhag Chand is resident of village Pakhala whereas the place of incident is at distance of 3 k.m. therefore, the statement of going to toilet is false. Therefore, he should not be considered eye­witness. But the witness A.D.2 Bhag Chand Khateek has stated in his main statement that one day from dated 28.10.2011, he had come to his brother’s house at village Shivad. In such a Situation, in our humble opinion, the witness being at a distance of 3 k.m. from spot of incident, being resident of Pakhala village, this cannot be considered that this witness would not be considered eye­witness.

Whereas there is question of his name not being in the charge­sheet as witness, definitely due to this fact, each such witness cannot be considered eyewitness who gives little statement about incident. But the evidence which the witness A.D.2 Bhag Chand Khateek has given on oath, in order to prove that distrust worthy, the opponents have not done any such interrogation from which there is suspicion in the statements of witness. The witness Bhag Chand Khateek was not even this suggestion that his police statement was not taken or the police had not interrogated him. In our humble opinion, in cases like accident occurring suddenly, the persons present near the place of incident are eye­witness of the incident. But during investigation this is not necessary that the investigation agency should name all the eye­witnesses as witness in the charge sheet. Therefore, the statement 31

of witness A.D.2 Bhag Chand Khateek cannot be considered distrust worthy that his name in the charge sheet is not mentioned as witness.”

(emphasis supplied)

28. Clearly, the evidence given by Bhagchand withstood

the respondents’ scrutiny and the respondents were unable

to shake his evidence. In turn, the High Court has failed to

take note of the absence of cross examination of this

witness by the respondents, leave alone the Tribunal’s

finding on the same, and instead, deliberated on the

reliability of Bhagchand’s (A.D.2) evidence from the

viewpoint of him not being named in the list of eye

witnesses in the criminal proceedings, without even

mentioning as to why such absence from the list is fatal to

the case of the appellants. This approach of the High Court

is mystifying, especially in light of this Court’s observation

[as set out in Parmeshwari (supra) and reiterated in

Mangla Ram (supra)] that the strict principles of proof in a

criminal case will not be applicable in a claim for

compensation under the Act and further, that the standard

to be followed in such claims is one of preponderance of 32

probability rather than one of proof beyond reasonable

doubt. There is nothing in the Act to preclude citing of a

witness in motor accident claim who has not been named in

the list of witnesses in the criminal case. What is essential

is that the opposite party should get a fair opportunity to

cross examine the concerned witness. Once that is done, it

will not be open to them to complain about any prejudice

caused to them. If there was any doubt to be cast on the

veracity of the witness, the same should have come out in

cross examination, for which opportunity was granted to the

respondents by the Tribunal.

29. The importance of cross­examining a witness has been

elucidated by this Court on several occasions, notably in

Kartar Singh Vs. State of Punjab,11 where a Five­Judge

Bench of this Court elaborated:

“278. Section 137 of the Evidence Act defines what cross­ examination means and Sections 139 and 145 speak of the mode of cross­examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross­examination is an acid­test of the truthfulness of the statement made by a witness on oath in examination­in­chief, the objects of which are:

11 (1994) 3 SCC 569 33

(1) to destroy or weaken the evidentiary value of the witness of his adversary;

(2) to elicit facts in favour of the cross­ examining lawyer's client from the mouth of the witness of the adversary party;

(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in the course of cross­ examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.

279. The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimized by any false and invented evidence that may be tendered by the adversary party.” (emphasis supplied)

The High Court has not held that the respondents were

successful in challenging the witnesses’ version of events,

despite being given the opportunity to do so. The High Court

accepts that the said witness (A.D.2) was cross examined by

the respondents but nevertheless reaches a conclusion

different from that of the Tribunal, by selectively overlooking

the deficiencies in the respondent’s case, without any

proper reasoning.

30. The High Court discarded the evidence of Bhagchand

(A.D. 2) also because he could not recollect the age of the 34

pillion rider. The inability of the witness to identify the age

of the pillion rider cannot, per se, be a militating factor to

discard his entire version especially since the presence of

the witness at the time and place of the accident has

remained unshaken and including his deposition regarding

the manner of occurrence of the accident and identity of the

driver of the offending vehicle. The filing of FIR

No.247/2011 (Exh.1) and the subsequent filing of the

charge­sheet (Exh.2) corroborate the witnesses’ evidence.

The view taken by the Tribunal therefore, on the veracity of

the evidence of A.D. 2, is unexceptionable and there was no

reason for the High Court to interfere with the same.

31. Similarly, the issue of non­examination of the pillion

rider, Rajulal Khateek, would not be fatal to the case of the

appellants. The approach in examining the evidence in

accident claim cases is not to find fault with non

examination of some “best” eye witness in the case but to

analyse the evidence already on record to ascertain whether

that is sufficient to answer the matters in issue on the

touchstone of preponderance of probability. This court, in 35 Dulcina Fernandes (supra), faced a similar situation where

the evidence of claimant's eyewitness was discarded by the

Tribunal and the respondent was acquitted in the criminal

case concerning the accident. This Court, however, took the

view that the material on record was prima facie sufficient

to establish that the respondent was negligent. In the

present case, therefore, the Tribunal was right in accepting

the claim of the appellants even without the deposition of

the pillion rider, Rajulal Khateek, since the other evidence

on record was good enough to prima facie establish the

manner in which the accident had occurred and the identity

of the parties involved in the accident.

32. On the issue of negligence by the deceased Sitaram in

causing the accident, the Tribunal has referred to the notice

issued under Section 134 of the Act (Exh. 7) to the driver of

the offending vehicle, respondent No.2. It records that in the

said notice, respondent No.2 failed to give any statement

indicating that the accident occurred due to any mistake by

the rider of the motorcycle, Sitaram. The Tribunal has

further relied upon the evidence of Bhagchand (A.D.2) and 36

also upon the site plan of the accident (Exh. 3) to reach a

conclusion that respondent No.2 recklessly drove the

speeding bus on the wrong side of the road, into the

motorcycle being ridden by Sitaram, who was on the correct

side of the road, and caused his death. Whereas, the High

Court has disregarded the evidence of Bhagchand. Further,

the site plan (Exh. 3) cannot be read in isolation. It will have

to be examined in conjunction with the other evidence.

33. The site plan (Exh. 3) has been produced in evidence

before the Tribunal by witness A.D. 1 (appellant No.1

herein) and the record seems to indicate that the accident

occurred in the middle of the road. However, the exact

location of the accident, as marked out in the site plan, has

not been explained muchless proved through a competent

witness by the respondents to substantiate their defence.

Besides, the concerned police official who prepared the site

plan has also not been examined. While the existence of the

site plan may not be in doubt, it is difficult to accept the

theory propounded on the basis of the site plan to record a

finding against the appellants regarding negligence 37

attributable to deceased Sitaram, moreso in absence of

ocular evidence to prove and explain the contents of the site

plan.

34. Be it noted that the evidence of witness A.D.2

(Bhagchand) unequivocally states that the respondent No.2

bus driver was negligent in driving recklessly at a high

speed on the wrong side of the road, thus, resulting in the

accident which caused the death of Sitaram. It was not open

to the High Court to discard this evidence. Additionally, the

Tribunal had justly placed reliance on the contents of FIR

No.247/2011 (Exh. 1) and charge­sheet (Exh.2) which

prima facie indicate the negligence of respondent No.2 in

driving the bus. We once again remind ourselves of the

dictum in Dulcina Fernandes (supra) and thereafter in

Mangla Ram (supra), and answer the factum of negligence

of the driver of the offending vehicle against the

respondents.

35. Reverting to the question of adequacy of compensation

amount determined by the Tribunal, the appellants have not 38

assailed the order of the High Court rejecting their appeal.

Further, in their appeal before the High Court (SBCMA

No.581 of 2017), the limited grievance was about deduction

of income tax from the calculated income. That ground is

unsustainable in light of the decision in National

Insurance Company Limited Vs. Pranay Sethi and Ors.12

We cannot permit the appellants to widen the scope in the

present appeal, muchless pray for enhanced compensation.

We are instead inclined to restore the Award passed by the

Tribunal as it has determined the just compensation

amount, keeping in mind all the relevant parameters

including the apportionment thereof between the family

members of the deceased. Upholding that Award would be

doing complete justice.

36. Resultantly, this appeal must succeed. We hold that

the impugned judgment and order of the High Court

deserves to be set aside and instead, the Award passed by

the Tribunal dated 14th December, 2016 be restored.

12 (2017) 16 SCC 680 39

37. Appeal is allowed in the above terms. No order as to

costs.

................................J (A.M. Khanwilkar)

................................J (Ajay Rastogi) New Delhi.

February 14, 2019.