HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 21 Case :- FIRST APPEAL FROM ORDER No. - 1804 of 2014 Appellant :- Sushil Kumar Gupta Respondent :- Smt. Krishna Devi And 4 Ors. Counsel for Appellant :- Virendra Prasad Mishra,J. Nagar,Manish Tandan Counsel for Respondent :- Vidya Kant Shukla Hon'ble Huluvadi G. Ramesh,J.
Hon'ble Shamsher Bahadur Singh,J.
(Per: Justice Shamsher Bahadur Singh) Heard Sri V.P. Mishra along with Sri J. Nagar and Manish Tandan, learned counsels for the appellant and Sri Vidya Kant Shukla, learned counsel for the respondents claimants and have gone through the record.
This First Appeal From Order has been filed by the appellant/owner against the award dated 26.2.2014, passed by the Motor Accident Claims Tribunal/ Additional District Judge, Court 14, Kanpur Nagar in M.A.C.P. No. 719 of 2010 (Smt. Krishna Devi and others vs. Sushil Kumar Gupta), whereby directing the appellant to pay a sum of Rs.14,47,818/- along with interest @ 6% per annum to be payable from the date of petition.
The factual matrix of the case is as follows :
That Suryapal Singh (since deceased) met with an accident on 21.5.2010 at 8 p.m. near the bridge ahead to village Banthari within P.S. Sumerpur, District Hamirpur, while Truck No. U.P. 78-N-9840 hit from back the motorcycle No. U.P. 91- B-1833 which was being driven by him and his real brother Surendra Singh was the pillion rider. According to the claimants-respondents, Suryapal Singh sustained serious injuries over his head and other parts of the body and the motorcycle was also badly damaged. The injured was initially treated in District Hospital, Hamirpur but was referred for further treatment. The injured received further treatment in the Regency Hospital, Kanpur Nagar, however, he succumbed to injuries on 29.5.2010. The pillion rider Surendra Singh went to police station on 31.5.2010 to lodge the F.I.R. but no report was written. Thereafter on 4.6.2010 and 11.1.2011 two typed reports were sent by registered post to S.P., Hamirpur. As no report was written, therefore, on application under Section 156(3) Cr.P.C. moved by Surendra Singh first information report at Crime No. 1019 of 2011 dated 11.6.2011 was registered against unknown driver of offending truck registration No. U.P. 78-N-9840 at P.S. Sumerpur, District Hamirpur. Alleging that the deceased was a tube well operator in the Irrigation Department, U.P. and earning a sum of Rs.13,225/- per month, the claim petition was filed by the legal representatives of the deceased for compensation of Rs.17,93,000/-.
The sole appellant owner contested the petition by way of filing a written statement dated 27.9.2011 with averment that no such accident as alleged by the claimants had ever taken place with his Truck No. U.P. 78-N-9840. It was further stated that the truck on 11.3.2010 about 8 p.m. in between village Hamiramau and Ajyouri on Kanpur Hamirpur road turned turtle and was in such a bad condition that it could not be plied on the road and was lifted by crane and brought to Indrani Auto Motor and Garage Transport Nagar, Kanpur Nagar for extensive repairs. The truck remained stranded in the said garage from 13.3.2010 to 10.8.2010 and was not plied on any route. The case of the owner appellant was that the claim petition was filed on false and manipulated grounds simply to extract money by using his truck number and petition was liable to be dismissed.
The learned tribunal on the basis of the pleadings of the parties formulated four issues and after appreciating the oral and documentary evidence led by both the parties recorded a finding against the owner appellant that the accident took place on 21.5.2010 at about 8 p.m. due to rash and negligence driving of truck bearing registration no. U.P. 78-N-9840 near the bridge ahead to village Banthari within P.S. Sumer, while Suryapal Singh was driving his motorcycle no. U.P. 91 B - 1833 and was returning to his village along with pillion rider Surendra Singh (brother). The said motorcycle was hit from back by the said truck, causing injuries to Suryapal Singh, who died on 29.5.2010 during treatment. The defence version of the appellant owner was rejected and issue no.1 was decided in affirmative.
Feeling aggrieved by the impugned award dated 26.5.2014, the appellant owner has filed appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as Act).
The case of appellant is that during the pendency of the appeal, the appellant came to know that the son of the deceased namely Jayant Singh (respondent no.4) had himself filed a written report dated 11.6.2010 at P.S. Sumerpur. The English translation of above report is as under :
"that on 21.5.2010, while his father Suryapal Singh @ Suraj Singh was returning home from Hamirpur by driving his motorcycle no. U.P. 91-B-1833, along with pillion rider Dwarika Kushwaha, R/o village Pachkhura Khurd, the front tire of the motorcycle burst by itself, whereby the motorcycle became disbalanced and his father fell on the road and sustained serious injuries on his head. In the incident the pillion rider Dwarika Kushwaha also sustained injuries. Both were taken for treatment to District Hospital Hamirpur. However, his father Suryapal Singh @ Suraj Singh was referred for treatment to Kanpur Nagar as his condition was serious. At Kanpur during treatment his father expired on 29.5.2010. Hence, it was prayed that necessary action be taken in the matter.
(Applicant) Jayant Singh (signed Jayant Singh) S/o Suraj Singh, R/o Bhauniya, P.S. Dt. 11.6.2010 Sumerpur, District Hamirpur,"
That on the basis of the information an entry was made in G.D. No. 18 dated 11.6.2010 at P.S. Sumerpur, clearly indicating filing of written report by Jayant Singh and copy of same was forwarded to S.I. Shiv Prasad for inquiry and action. The case of the appellant is that the injured pillion rider Dwarika Kushwaha was admitted in the same hospital at Hamirpur as a patient having registration No. 2818 dated 21.5.2010 and also sustained several injuries over his head and other parts of the body. Injured Dwarika Kushwaha remained hospitalised from 21.5.2010 to 29.5.2010 and thereafter continued receiving treatment from 31.5.2010 to 6.6.2010. In this view of the matter, it was contended on behalf of the appellant that on the date of alleged accident the pillion rider on motorcycle driven by Suryapal Singh was Dwarika Kushwaha as per report submitted by Jayant Singh himself and this fact fully negates the presence of Surendra Singh on motorcycle as a pillion rider at the time of accident as well as case of claimants. Further he contended that in Case Crime No. 1019 of 2011 under Sections 279, 304-A IPC the police of P.S. Sumerpur submitted final report no. 15 on 4.7.2011 before Magistrate concerned which was accepted at later stage without any protest on behalf of the claimants. Further he contended that in the accident dated 11.3.2010 at about 8 p.m. in between villages Hamiramau and Ajyouri by the truck owned by appellant the driver Durga Shankar Pandey succumbed to injuries and a Motor Accident Claim Petition No. 613 of 2010 (Smt. Ramadevi and others vs. Sushil Kumar Gupta) was filed by the legal representatives of the deceased driver Durga Shankar Pandey and the said petition was decided on 28.8.2014 after judgment and award dated 26.2.2014, which is under challenge in the present appeal. He further contended that inspite of sincere efforts and exercise of due diligence the papers relating to submission of report by Jayant Singh, G.D. Entry, final report and judgment and award passed in M.A.C.P. No. 613 of 2010 were not within the knowledge of the appellant and, therefore, could not be produced before the tribunal at the time when the judgment and award was passed against the appellant.
In the background of aforesaid set of facts and circumstances an application under Order XLI Rule 27 and Section 151 of Code of Civil Procedure (hereinafter referred to as Code) has been moved by the appellant before the Court to take on record the affidavit along with six enclosures for hearing and just decision of appeal. In reply to above, the respondents have filed counter affidavit of Smt. Krishna Devi, respondent no.1 along with affidavit dated 18.4.2015 of Dwarika Kushwaha (Annexure-1) and an intimation dated 4.6.2010 by Surendra Singh to S.P., Hamirpur through post for registration of first information report (Annexure-2).
Learned counsel for the respondents contended that in view of provision under Rule 221 of the U.P. Motor Vehicle Rules 1998 (hereinafter referred to as 'Rules') the provisions of Order XLI Rule 27 of Code are not applicable in the cases of compensation under Motor Vehicles Act and he further contends that the appellant has also failed to show that the aforesaid papers were not within his knowledge in spite of exercise of due diligence.
Per contra, learned counsel for the appellant submitted that the enclosures of affidavit reveals that the copies of documents, proposed to be filed were issued after the impugned award and the appellant inspite of best efforts and due diligence could not produce the above documents before tribunal as he was not aware of the facts pertaining to documents. Learned counsel further contended that in view of provision under Section 169 of the Act the additional evidence may be produced at appellate stage and provisions of Order XLI Rule 27 of the Code will be applicable for just decision of case and adjudication of right and lis between the parties.
Now the issue for consideration before this Court is whether the documents filed by the appellant can be taken on record for decision of case at appellate stage. The relevant provisions so far as the applicability of provisions of Code are concerned finds place under Rule 221 of the Rules, which runs as under :
"221. Code of Civil Procedure of apply in certain cases.- The following provisions of the First Schedule to the Code of Civil Procedure, 1908 shall so far as may be apply to proceedings before the Claims Tribunal, namely, Rules 9 to 13 and 15 to 30 of Order V; Order IX, Rules 3 to 10 of Order XIII, Rules 2 to 21 of Order XVI; Order XVII; and Rules 1 to 3 of Order XXIII."
Plain reading of the aforesaid rules provides that provisions of Order XLI Rule 27 of the Code are not applicable in motor accident claim petition. But the provisions of Section 169 of the Act, 1988 are as under :
"169. Procedure and powers of Claims Tribunals.- (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry."
The provisions relating to production of additional evidence at appellate stage are enunciated under Order XLI Rule 27 of the Code, which is as under:
"Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
The Motor Accident Claims Tribunal is a quasi judicial body and is vested with limited powers. The technical and complex rules of procedure are not attracted while imparting justice on the basis of claim petition. The basic laws and principles of procedure and evidence are applicable. Analogy is drawn from the rules of procedure provided in Code and Evidence Act to do substantial justice between the parties in a lis under Motor Vehicle Act before tribunal. Section169 of the Act in principle has adopted the concept of acceptance of evidence while deciding the claim petition, whereas Rule 221 framed by U.P. Government confines the applicability to very limited provisions of Code. In motor accident claims adjudication Order XLI Rule 27 of the Code is a provision authorising the appellate Court to exercise power to advance the cause of justice. All the provisions relating to procedure are meant to impart substantial justice between the parties. It is an established proposition of law that all the provisions to advance the cause of justice should harmoniously interpreted. On the harmonious constructions of provisions referred above it can be safely inferred that analogy may be drawn from Order XLI Rule 27 of the Code for accepting additional evidence while exercising appellate jurisdiction by High Court to advance the cause of justice or to impart substantial justice between the parties. Further the proceedings before tribunal are summary in nature and this appears to be a reason for incorporation of Rule 221 confining application of only few provisions of Code. This necessarily does not mean that the provisions of Section 169 of Act, and the other provisions of Code are in conflict to Rule 221.
In the facts and circumstances, at the very outset, it is observed that the tribunal exercises quasi judicial power and there appears no bar to powers of appellate courts for admission of additional evidence in the appeal although as per Rule 221 the provisions of Order XLI Rule 27 of Code are not applicable in Motor Accident Claims Petition.
In exercise of inherent power also the Court can accept additional evidence under provisions of Code provided facts and circumstances permit to do so. This view has been expressed by the Hon'ble Apex Court in following decisions.
In case of M/s Atma Ram Properties (P) Ltd. vs. M/s Federal Motors (P) Ltd. 2005 (58) ALR 650 the Hon'ble Apex Court has held as under :
"5. The order or eviction passed by Rent Controller is appealable to the Rent Control Tribunal under Section 38 of the Act. There is no specific provision in the Act conferring power on the Tribunal to grant stay on the execution of the order of eviction passed by the Controller, but sub-section (3) of Section 38 confers the Tribunal with all the powers vested in a Court under the code of Civil Procedure, 1908 while hearing an appeal. The provision empowers the Tribunal to pass an order of stay by reference to Rule 5 of Order 41 of the Code of Civil Procedure, 1908 (hereinafter 'the Code' for short). This position was not disputed by the learned Senior counsel appearing for either of the parties."
Further in case of State of U.P. and others vs. Roshan Singh (Dead) By Lrs. and others reported in2008 (71) ALR page 1 the Hon'ble Apex Court has held as under :
"7. The principles which regulate the exercise of inherent powers by a Court have been highlighted in many cases. In matters with which the C.P.C. does not deal with, the Court will exercise its inherent power to do justice between the parties which is warranted under the circumstances and which the necessities of the case require. If there are specific provisions of the C.P.C. dealing with the particular topic and they expressly or necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent powers of the Court cannot be invoked in order to cut across the powers conferred by the C.P.C. The inherent powers of the Court are not to be used for the benefit of a litigant who has remedy under the C.P.C. Similar is the position vis-a-vis other statutes. The object of section 151, C.P.C. is to supplement and not to replace the remedies provided for in the C.P.C. section 151, C.P.C. will not be available when there is alternative remedy and same is accepted to be a well-settled ratio of law. The operative field of power being thus restricted, the same cannot be risen to inherent power. The inherent powers of the Court are in addition to the powers specifically conferred to it. If there are express provisions covering a particular topic, such power cannot be exercised in that regard. The section confers on the Court power of making such orders as may be necessary for the ends of justice of the Court. Section 151, C.P.C. cannot be invoked when there is express provision even under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are concerned. Undisputedly, an aggrieved person is not remediless under the Act."
Again in the case of Bimla Devi and others vs. Himachal Road Transport Corpn. and others AIR 2009 (SC) 2819 the Hon'ble Apex Court has held as under :
"that in cases of motor accident claim strict proof of accident is not possible to be given by the claimants. The claimants have to establish their case merely on touchstone of preponderance of probability. Standard of proof beyond reasonable doubt cannot be applied."
In view of law laid down in the aforesaid decisions the respondents-claimants have to establish their case merely on touchstone of preponderance of probability but report dated 11.6.2010 submitted by master Jayant (aged about 17 years at the time of filing petition) narrates altogether different manner and mode of accident as well as death of his father due to injuries and also who was the pillion rider. Under such facts and circumstances in the interest of justice and just decision of the case, it is necessary for this Court to invoke inherent jurisdiction to admit the additional evidence filed by the appellant as well as counter affidavit along with two annexures of respondents. Further it would not be out of place to mention that the provisions of Section 169 of the Act do permit to claim tribunal all powers of civil Court for the purposes of taking evidence on oath. Therefore, in the interest of justice additional evidence filed by way of affidavit and counter affidavit along with annexures are taken on record for just decision of case. Learned counsel for the appellant contended that if the report dated 11.6.2010 is taken to be true then entire story setup by claimants in the petition has no legs to stand. At the time of filing of petition Jaynat Singh son of deceased was about 17 years and it cannot be said that he has no knowledge about the accident and consequence of his report. Jayant Singh being one of the claimant has not denied the fact that he is not author of report dated 11.6.2010. The documents like report dated 11.6.2010, G.D. entry and final report are the documents being issued from public office, police station concerned and they could not be presumed to have been prepared by appellant for success of appeal.
Learned counsel for the appellant further contended that the claimants respondents have played a fraud in the matter and knowingly and intentionally they have suppressed true material facts and claim petition has been filed implicating the truck owned by the appellant just to obtain the compensation.
This Court is not inclined to observe or record anything adverse to the interest of claimants-respondents but in the background of facts of case in hand narration of certain observation made by the Hon'ble Apex Court in following decision appears to be an eye opener.
In the case of State of Andhra Pradesh vs. T. Surya Chandra Rao AIR 2005 SC 3110 the Hon'ble Supreme Court has held as follows :
"by fraud is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression 'fraud' involves to elements, deceit and injury to the person deceived. Injury is something other than economic loss, i.e. deprivation of property, whether movable or immovable or of money and it will include any harm whatsoever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary. A benefit for advantage to the deceiver, almost cause loss or detriment to the deceived. Even in those cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied." (Para 7) In the same judgment, referring to a previous judgment in the case of S.P. Chengalvaraya Naidu vs. Jagannath; [1994 (1) SCC1], it was further held that- "a 'fraud' is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is deception in order to gain by another's loss. It is a cheating intended to get an advantages". (para 8) The Hon'ble Apex Court in the case of S.P. Chengalvaraya Naidu vs. Jagannath; [1994 (1) SCC 1] has further held that-
"......the short question was whether in the facts and circumstances in this case, Jagannath obtained the preliminary decree by playing fraud on the Court...... The principle of finality of litigation cannot be pressed to the extent of such an obsurdity that it becomes an engine of fraud in the hand of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the Court process, a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on false-hood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation (para 7)".
The Hon'ble Apex Court in the said judgment, has further held that -
"A litigant, who approaches to Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital documents in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the opposite party (para 8)"
It is very well settled position of law that fraud vitiates every solemn act. Fraud and justice never dwell together and fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. Suppression of material document would also amount to a fraud on the Court. Reference may be made to the decision of Gowri Shanker vs. Joshi Amba Shanker Family Trust; 1996 (3) SCC and S.P. Chengalvaraya Naidu vs. Jagannath; [1994 (1) SCC 1] (supra). The Hon'ble Supreme Court in the case of Ram Chandra Singh vs. Savitri Singh; 2003 (8) SCC 319, referring to large number of judicial pronouncement has summarized the entire legal position on the subject and has held that-
"An act of fraud is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the other in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous (para 22) ..... In the same decision referring to an earlier decision given in the case of Indian Bank vs. Satyam fibres India Pvt. Ltd. (1996) 5 SCC 550, it was further held that "the judicial in India also possesses inherent power, specially, under Section - 151 CPC to recall its judgment or order if it is obtained by fraud on Court ..... Inherent powers are powers, are resident in all Courts especially of superior jurisdiction. These power spring not from legislation but from the nature and constitution of the tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect it s officers from indignity and wrong to punish unseemly behaviour. This power is necessary for the orderly administration of the Courts business."
From perusal of the report dated 11.6.2010 submitted by Jayant Singh, G.D. Entry dated 11.6.2010 and final report dated 4.7.2011 as well as avermenrs made in first information report at Crime No. 1019 of 2011, two versions of alleged accident have emerged along with two different pillion riders namely Surendra Singh and Dwarika Kushwaha. The above papers have been filed as Annexures 1 to 4 of affidavit of appellant at appellate stage. In counter affidavit too, photocopy of the affidavit dated 18.4.2015 of Dwarika Kushwaha has been filed where he has stated that on 21.5.2010 at about 8 p.m. when he was on way to his village Pachkhura on foot, at some distance ahead to village Pandhari he saw that an unknown truck dashed the motorcycle and thereafter also dashed him. The truck ran away after accident and he could not see the number. Surendra Singh and Suraj Singh @ Suryapal Singh, R/o village Bhawania were on motorcycle. He and another injured Suryapal Singh were brought to District Hospital, Hamirpur by Surendra Singh. In what context this affidavit was prepared and whether actually submitted before "Saksham Adhikari" after the impugned judgment and award can be explained either by Smt. Krishna Devi, who has filed it, or Dwarika Kushwaha himself.
Now another question for consideration before this Court is that whether the report dated 11.6.2010 submitted by Jayant Singh and affidavit of Dwarika Kushwaha can be read in evidence without giving an opportunity to both to state in respect to above report and affidavit. The provision of section 145 of Indian Evidence Act, 1872 is as under :
"145. Cross-examination as to previous statements in writing. - A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
A bare perusal of the aforesaid provision reveals that the report and affidavit submitted by Jayant Singh as well as Dwarika Kushwaha, are their previous statement made by them in writing and they are relevant for just decision of the petition and it is necessary to afford an opportunity to above. It appears that the aforesaid material documents were within the knowledge of respondents-claimants but without affording an opportunity of explaining the facts and circumstances, under which document could not be produced before the tribunal or this Court, no opinion can be expressed to the effect that the respondents suppressed material documents and made an attempt to defraud the Court.
In the peculiar facts and circumstances of the case, we are of the view that the impugned judgment and award deserves to be set aside and matter be relegated to the tribunal for a fresh decision of motor accident claim petition after giving an opportunity to both the parties to file certified copies of all documents filed at appellate stage and also by examining Jayant Singh and Dwarika Kushwaha to narrate facts leading to submission of report dated 11.6.2010 and affidavit dated 18.4.2015. In this process the appellant will have opportunity of cross-examining both witnesses.
In the result, the appeal is allowed and the impugned judgment and award dated 26.2.2014 passed by the Motor Accident Claims Tribunal/ Additional District Judge, Court 14, Kanpur Nagar in M.A.C.P. No. 719 of 2010 (Smt. Krishna Devi and others vs. Sushil Kumar Gupta) is set aside. The matter is relegated to Motor Accident Claims Tribunal for a fresh decision according to law in view of the above observation. We hope and trust that the tribunal will make all sincere endeavour to decide the petition preferably within a period of three months. The parties are directed to appear before the Tribunal on 12.10.2015.
Order Date :- 29.09.2015 S.S.