Shiv Prasad Varma And Ors. vs Deo Nrain Singh Ors.
2021 Latest Caselaw 11393 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 18
 

 
Case :- FIRST APPEAL FROM ORDER No. - 44 of 2013
 

 
Appellant :- Shiv Prasad Varma And Ors.
 
Respondent :- Deo Nrain Singh Ors.
 
Counsel for Appellant :- R.P.Shukla,A.K.Shukla
 
Counsel for Respondent :- Kunwar Bahadur Singh,Waquar Hasim
 

 
Hon'ble J.J. Munir,J.

1. This is a claimants' appeal under Section 173 of the Motor Vehicles Act, 1988.

2. By the impugned judgment and award dated 18.10.2012, the Motor Accident Claims Tribunal/Additional District Judge Court No.2, Faizabad has dismissed the appellants' Claim Petition No. 28 of 2012.

3. The motor accident claim arises from an accident that occurred on 24th of November, 2011 at 5:30 in the evening. The victim was one Surendra Kumar Verma. Verma was on his way to his in-laws from Faizabad after doing his days' work. He was proceeding to Village Pure Kashinath, Haripur Jalalabad, P.S. Cantt, District Faizabad, where his in-laws lived. Verma was hit by a Tata Bus bearing Registration No. UP 42B 1968, that is said to have been driven rashly and negligently. Verma, who was on his side of the road, was hit by the bus and crushed under its wheels. He sustained grievous injuries. The passers-by took him to the District Hospital, Faizabad, but he died on way to the hospital.

4. The claimant-appellant-Phoola Devi is Verma's widow. It is asserted in the claim that Verma was aged 30 years at the time of accident and was a healthy youngman. He was gainfully self employed as a mason and was also into farming. He had an income of Rs.9,000/- per month. The claim petition was instituted by Varma's widow alone, though in the column of dependents, besides the deceased's widow, Shiv Prasad Verma, his father, Bittan Devi, his mother, Vikas Verma, Vishal Verma and Abhishek Verma, his brothers are also shown. The claim made is for a sum of Rs.47,80,000/- together with interest.

5. A written statement was filed on behalf of Deo Narain Singh, who is the owner of the offending vehicle. He has acknowledged the fact of being the registered owner of the vehicle and the further fact that opposite party no. 2 to the claim petition, Awadhesh Kumar Singh, who is the third respondent here, is the driver. It was asserted that Awadhesh Kumar Singh had a valid driving license to drive the bus and commands experience on the job. It was pleaded that no First Information Report about the incident was lodged. It is averred that the offending vehicle is registered with the Oriental Insurance Company Ltd., Faizabad, with a policy valid upto 05.01.2012 until midnight. The further stand taken is that the offending vehicle was not involved in the accident. It was asserted that in the event the Tribunal reached conclusion that the offending vehicle was indeed the one involved, liability would fasten upon the Insurance Company to indemnify.

6. The second opposite party to the claim petition, who are second respondent here, that is to say, the Oriental Insurance Company Ltd., Faizabad, represented by its Regional Manager put in their written statement. The appellants' claim was denied. It was asserted that the Insurance Company dispute the factum of accident as also the involvement of the offending vehicle insured by them. It was pleaded that unless the claimant establishes the factum of accident, the Insurance Company had no onus. It was also pleaded that the Insurance Company deny insuring the offending vehicle as well as its validity, unless the registered owner of the vehicle does not prove those facts. The Insurance Company would have onus about the aforesaid fact after the registered owner established the vehicle's insurance and its validity. It was asserted that the registered owner has to prove that the driver possessed a valid and effective driving license and that in case the driver failed to establish a valid and effective driving license on the date of accident, the Insurance Company would have no liability. A plea was also raised that the owner of the vehicle has to establish the validity of other documents, authorizing him to ply the vehicle. The compensation claimed was dubbed as excessive. It was also pleaded that the claim petition is not in the prescribed proforma and was liable to be rejected.

7. The Tribunal, on the basis of parties' pleadings, framed the following issues (translated into English from Hindi vernacular):-

(i) Whether on 24.11.2011, at about 5:30 in the evening, when Surender Kumar Verma was proceeding from Faizabad after doing his day's work to his in-laws at Village Pure Kashinath, Haripur Jalalabad, P.S. Cantt, District Faizabad, Tata Bus No. UP 42B 1968, coming on from the direction of Faizabad, that was driven rashly and negligently by its driver, hit Surendra Kumar Verma, leading him to suffer serious injuries which resulted in his death?

(ii) Whether at the time of accident the vehicle bearing Registration No. UP 42B 1968 was insured with the office of the Oriental Insurance Company?

(iii) Whether vehicle bearing Registration No. UP 42B 1968, at the time of accident, was driven by a driver possessed of a valid driving license?

(iv) To what relief the claimant is entitled?

8. In support of the claim, a photostat copy of the First Information Report, a photostat copy of photo I.D. Card issued by Election Commission of India, a certified copy of the charge-sheet filed by the Police, a certified copy of the postmortem report, a certified copy of the site plan drawn by the investigating officer in the relative criminal case, besides a photostat copy of the death certificate of the deceased and the basic labour rate list have been filed. Phoola Devi, the claimant, entered the dock and testified in support of the claim petition as CPW1. One Keshav Ram was also examined in support of the claim petition as CPW2. On behalf of the owner and the driver, a photostat copy of the driving license, a photostat copy of the registration certificate of the offending vehicle and a photostat copy of the insurance cover note have been filed. No one testified orally on behalf of the owner and the driver.

9. The Insurance Company did not lead any evidence, either documentary or oral.

10. The crucial issue, on which the event has turned in the claim petition, is issue no.(i). It is about the factum of the accident involving the offending vehicle. This issue has been answered against the claimants and in favour of the respondents/opposite parties. It must be remarked that issue nos. 2 and 3 have been answered in the affirmative, holding that the offending vehicle was insured with the Oriental Insurance Company and that the driver held a valid driving license on the date of the accident. Nevertheless, on the basis of the findings recorded on issue no.1, the claim petition has been ordered to be dismissed.

11. Aggrieved this, the present First Appeal From Order has been preferred by the claimants, who, for some reason here, include all the dependents of the deceased shown in the claim petition.

12. Heard Mr. R.P. Shukla, learned counsel for the appellants and Mr. Waquar Hasim, learned counsel appearing on behalf of the Oriental Insurance Company Ltd. No one appears on behalf of respondent nos.1 and 3.

13. Mr. Shukla, learned counsel for the appellants, submits that the findings on issue no.1 are based on conjectures and are perfunctory. He submits that the Tribunal has rejected the evidence of PW-2- Keshav Ram Verma, who is an eye witness to the incident. by doubting his presence on the scene of accident. He submits that these conclusions have been drawn by the Tribunal by judging the witness's conduct at the time of accident and soon thereafter, which, according to Mr. Shukla, has been projected as an imaginary model about the manner in which the witness ought to have acted, had he really been present at the scene of accident. And then a comparison of the witness's conduct has been made by the Tribunal to that model to disbelieve his presence.

14. The learned counsel for the Insurance Company, on the other hand, submits that the Tribunal has carefully evaluated the evidence on record and disbelieved the factum of accident. The Tribunal has considered the conduct of PW-2- Keshav Ram Verma, who claims to be an eyewitness of accident and rightly concluded that he was a got up witness.

15. Learned counsel for the Insurance Company, Mr. Waquar Hasim, also submits that the Tribunal has rightly opined that the evidence of PW-1 is hardly relevant because she is not an eyewitness at all. Her evidence is hearsay. Learned counsel for the Insurance Company has also laid much emphasis on the fact that the accident occurred at 5:30 in the evening and by that time, it is quite dark in the month of November. The Tribunal has rightly held that the witness's motorcycle was moving ahead of the offending vehicle, when the latter caused the accident and that, therefore, it is not believable that the witness could have seen the vehicle's registration number on the back side. The evidence of PW-2 has also been castigated by the learned counsel for the Insurance Company on the same lines as done by the Tribunal, on ground that this witness has said that he knew Verma personally and yet, after witnessing him suffer a serious accident, did not carry the victim to the hospital. Instead, he went off to Verma's home to inform his relatives about the accident. It is also submitted by the learned counsel for the Insurance Company that the postmortem report has been rightly read and understood by the Tribunal to infer that the injuries sustained by the deceased could well be the result of any kind of violence or occurrence. The injuries shown in the postmortem report do not show the victim's death to have been caused by a motor accident.

16. We have carefully considered the submissions advanced by the learned counsel for both parties and also perused the record.

17. This Court must say at once that the various inferences drawn by the Tribunal about the veracity of PW-2- Keshav Ram are indeed conjectural. The Tribunal has recorded the presence of PW-2 as one made up, because he did not carry Verma to the hospital soon after the accident. To this end, the Tribunal has reasoned that the witness says that he knew Verma and if that were the case, the conduct of the witness in not rushing the victim to the hospital, makes his presence at the scene of the accident impossible to believe. We do not think so. The deceased had suffered an accident, where he was crushed under the wheels of a bus. The precise manner, in which a person would react in a given situation, cannot be judged by stereotypes of behavior. There could be a great variation in responses based on the personality, training, the nature of the injury sustained by the victim and the other circumstances, such as ready help of others to ferry the victim to medical aid. A man with a timid heart or one who lacks confidence or by his training is not used to handling victims of a gory incident, may not have the guts of carrying an acquaintance or a friend in a badly or fatally injured state to the hospital. The decision to do so or not to do so can also be conditioned by the presence of others, who might have volunteered to take the victim to the hospital. Here, there is evidence that the victim was indeed taken to the hospital by the passersby. In these circumstances, if the witness thought it better to inform Verma's relatives about the misshappening, the fact that he did not, in the first instance, rush Verma to hospital, cannot make the presence of PW-2 doubtful. There is no evidence that PW-2 is into a kind of a job, such as a paramedic or a member of the Armed Forces, where he is trained to handle victims of serious injuries or accidents, particularly his acquaintances. Apparently, he is a man with no special training or particular station in life, that would equip him to readily rush the victim of a major accident to the hospital. There could be many more reasons for the witness not to carry the victim to the hospital, but this Court does not want to record further findings in the matter, considering the course of action which we propose to adopt in this case.

18. The other findings of the Tribunal that in case this witness had, in fact, read or noted the number of the offending vehicle, he would have communicated it to the members of Verma's family and in that case, it would have figured in the FIR lodged by the family on the following day, are equally flawed. This again is an assumption not based on responses of men, who were in the midst of a trauma. It is not unreasonable to believe that a person, who has seen a fatal accident, informs the family about it, but omits to mention the registration number of the offending vehicle. The family, who lodged the FIR on the following day, would not be in the best serenity of mind to script the FIR in all its minutest details. It is a bit unreasonable and pedantic to assume that the FIR, in not carrying the registration number of the offending vehicle, when lodged on the following day, shows that the witness PW-2 had never noted that number. In the melee that follows a mishap of this kind, there could be many a slip contributing to omission of the registration number in the FIR or even in a later statement.

19. The matter requires to be considered more carefully. There is then this finding recorded by the Tribunal that PW-2- Keshav Ram was riding a motorcycle and his presence is not believable because he did not give the offending vehicle, a bus, a chase and force it to stop. The Tribunal has most wildly conjectured to say that it is definite that the speed of a motorcycle is far greater than that of a bus and that, therefore, the witness not chasing and apprehending the bus, makes his presence doubtful. It is not always necessary that a motorcycle may move faster than a bus. It depends on the road conditions and many other factors. It also depends on the condition of the motorcycle as well as the bus and the technical specifications. There cannot be a generalization about it in the manner done by the Tribunal also. The task of giving a chase to a large vehicle, like a bus, on a two wheeler and bringing it to a halt, is no trifling, and an untrained man may never have the nerve to do it or the necessary skill. He may even fear for his own life that the once killer bus, in order to escape liability, may turn a twice killer. These are all possibilities that may have legitimately prevented the witness in opting for the course that the Tribunal has thought to be decisive about the falsehood of this witness's testimony.

20. Again, this Court refrains from expressing any final opinion, but wishes to indicate that these are possibilities which require more objective assessment.

21. The adverse inference drawn against the presence of this witness for his inaction in reporting the matter to the Police, has also been given undue weight. In the sequence of events, once the witness thought that he should rush to the family, informing the Police could have become a secondary priority. The victim had already been rushed to the hospital by those present on the spot, and the Police, in any case, had reached the hospital. There is then another finding recorded by the Tribunal, which says that PW-2 has admitted the fact that his motorcycle's headlight was functional, but that of the bus was not. It was, therefore, unnatural for the witness to have noted down the registration number of the vehicle at 5:30 in the evening when it is dark. It is beyond understanding how the non-functional headlight of the bus would prevent the witness, who had a working headlight on his motorcycle, from noting down its registration number. This conclusion recorded by the Tribunal is perverse. It is possible for the witness to have noted down the registration number of the bus from a distance of 10-15 feet at 5:30 in the evening of 24.11.2011, despite darkness setting-in, employing that headlight on his motorcycle that would have caught the rear number plate of the bus.

22. The other findings recorded is about the security personnel employed by the brick kiln, the Students' Hostel or the Mahendra Tractor Agency, not being called as witnesses by the claimant to prove the factum of accident.

23. In our opinion, once PW-2 had testified as an eye-witness to the accident, it was imperative for the Insurance Company to have produced evidence to rebut the claimants' case. The evidence of PW-2 is sufficient to discharge the claimants' onus on principle akin to Section 101 of the Indian Evidence Act, 1872. The Act last mentioned though not applicable to proceedings before the Tribunal proprio vigore, the principle is well established.

24. Onus probandi is the burden to lead evidence on an issue that rests at a particular point of time on the shoulders of one party or the other. It shifts during trial and is different from burden of proof, which is the overall burden to be discharged on an issue. Here, the Insurance Company, as already said, has not led any evidence. The Tribunal, in the absence of any evidence led by the Insurance Company, or for that matter, by the driver or the owner, has committed a manifest error of law in disbelieving the claimants' case. There is too much of conjuncture running through every limb of the findings on issue no.1, recorded by the Tribunal.

25. Nevertheless, this Court does not wish to express a final opinion in the matter, inasmuch as we think that the case should go back to the Tribunal, who should try and re-determine it, affording further opportunity to both parties to lead such evidence, as may be advised.

26. This Court also notices the fact that the findings on issue nos.2 and 3, have been recorded rather cursorily, because the approach of the Tribunal was one under the shadow of its finding on issue no.1. Learned counsel for the Insurance Company says that those findings are also required to be gone into afresh, with opportunity to them to produce evidence in support of the pleas raised in their written statement. Learned counsel for the appellants also submits that the Tribunal has not framed any issue about the quantum of compensation claimed, which ought to have been framed. It is true that if the claim succeeds, as a result of return on other findings, which the Tribunal shall now do afresh, the quantum would have to be worked out. As such, the Tribunal ought to frame an issue about the quantum of compensation payable, about which too, parties would be at liberty to lead evidence.

27. Before parting with the matter, it is made clear that apart from the guidance about the approach of the Tribunal while judging issue no.1, this judgment shall not be regarded as an expression of opinion on the merits of the appellants' claim or against it. The Tribunal shall be free, bearing in mind what has been indicated hereinabove, to try and decide the matter afresh in accordance with law. It is also made clear that the evidence already on record shall be taken into consideration, together with any further evidence that the parties may now be advised to lead.

28. In the circumstances, this appeal partly succeeds and is allowed in part. The impugned judgment and award dated 18.10.2012, passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Faizabad in Claim Petition No.28 of 2012, Phoola Devi vs. Deo Narain and Others, is hereby set aside, with a remit of the matter to the Tribunal to try and decide the claim petition afresh, in accordance with the guidance in this judgment. It is also ordered that the Tribunal shall endeavor to decide the claim petition within a period of six months of the date of receipt a copy of this judgment.

29. Costs easy.

Order Date :- 27.11.2021

Ravi/-

(J.J. Munir, J.)