The United India Insurance Co. Ltd vs 1. Smt. Vajarabai Narayan Sadaram ...
2021 Latest Caselaw 16833 Bom

                                                FA1072-2007.DOC

                                                        Santosh
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CIVIL APPELLATE JURISDICTION


                FIRST APPEAL NO. 1072 OF 2007

     The United India Insurance Co. Ltd.
     Priyadarshani, 1st Floor, Eastern
     Express Highway, Sion, Mumbai 400
     022.                                         ...Appellant

                      Versus

1.   Smt. Vajarabai Narayan Sadaram
     Age : 53 years (widow of deceased)
2.   Mr. Ashok Narayan Sadaram
     Age : 22 years (son of deceased)
     Both residing at Pooja Enclave,
     R. No.03, C - Wing, Kalina Village,
     Santacruz, Mumbai - 400 029.
3.   Babu Narayan Sadaram
     Age : 36 years (married son of deceased)
     R/at Pooja Enclave, R.No.202, IInd
     floor, C-Wing, Kalina Village, CST Road,
     Santacruz, Mumbai 400 029.
4.   Carvan Motor Services,
     A-3/1, Sector no.2, CBD Colony,
     Opp. Kokan Bhuvan, Navi Mumbai
                                                ...Respondents

Ms. Varsha Chavan, for the Appellant.
Mr. T. J. Mendon, for Respondent nos.2 and 3.


                           CORAM: N. J. JAMADAR, J.

RESERVED ON: 22nd NOVEMBER, 2021 PRONOUNCED ON: 4th DECEMBER, 2021

JUDGMENT:-

1. This appeal is directed against the judgment and award

dated 7th November, 2006, in MACP No.1971 of 2002, passed by

FA1072-2007.DOC

the learned Member, Motor Accident Claims Tribunal, Mumbai

("the Tribunal"), whereby the petition came to be allowed and

opponent no.1, the owner of the vehicle and opponent no.2, the

insurer - appellant herein, were ordered to jointly and severally

pay a sum of Rs.3,70,000/- along with simple interest at the

rate of 7.5.% p.a. from the date of the petition till realization, by

way of compensation for the death of Narayan Sadaram ("the

deceased") on account of use of the motor bus bearing no. MH-

04/G-1071, under Section 166 of the Motor Vehicles Act, 1988

("the M.V. Act, 1988").

2. The background facts leading to this appeal can be stated

in brief as under:

(a) Late Narayan was the husband of applicant no.1 and

father of applicant nos.2 and 3. He was employed in Air India

canteen. He drew a salary of Rs.11,074/- per month. The

deceased was also supplying the milk by door to door delivery.

On 26th June, 2002, at about 5.30 am., while the deceased was

riding the bicycle to deliver the milk, the motor bus bearing

registration no. MH-04/G-1071, gave a violent dash to the

deceased on Kalina - Kurla road opposite Lucky Hotel, Kalina

Santacruz (E). The deceased succumbed to the injuries

sustained in the said accident. Crime was registered at CR

FA1072-2007.DOC

No.247/2002 under Sections 279 and 304A of the Indian Penal

Code, 1860, at Wakola Police Station. As the death occurred on

account of rash and negligent driving by the driver of the above-

numbered bus, which was owned by opponent no.1 and insured

with opponent no.2, the applicants preferred a claim for

compensation under Section 166 of the M.V. Act, 1988.

(b) Opponent no.1 - owner did not appear despite

service of notice. Hence the application proceeded ex parte

against opponent no.1. Opponent no.2 - insurer entered

appearance. However no written statement was filed. Hence the

application proceeded without written statement against

opponent no.2.

(c) The learned Member after appraisal of the evidence

of Smt. Vajarabai Sadaram (PW-1), the wife of the deceased and

Mr. Deepak Sanghal (DW-1) for opponent no.2 - insurer, and the

documents tendered for his perusal, was persuaded to record

the finding that the deceased suffered death in an accident

involving the motor-bus bearing No.MH-04/G-1071, on account

of negligent driving on the part of the driver of the said bus.

The learned Member thus proceeded to determine the

compensation under the head of loss of dependency and the

conventional heads and directed opponent nos.1 and 2 to jointly

FA1072-2007.DOC

and severally pay the sum of Rs.3,70,000/- along with simple

interest at the rate of 7.5% p.a. from the date of the application.

3. Being aggrieved by and dissatisfied with the aforesaid

judgment and award opponent no.2 - insurer has preferred this

appeal. The principal ground of challenge is the absence of

reliable evidence to establish the involvement of the motor-bus

bearing No.MH-04/G-1071 in the accident, in which the

deceased allegedly met death. In the absence of clear proof of

the involvement of the said vehicle the insurer could not have

been fastened with the liability to pay the compensation, is the

substantive ground of challenge to the impugned judgment and

award.

4. I have heard Ms. Chavan, the learned Counsel for the

appellant and Mr. Mendon, the learned Counsel for the

respondents - original applicants, at length. With the

assistance of the learned Counsels, I have also perused the

pleading, the deposition of witnesses and the documents

tendered for the perusal of the learned Member, which form

part of the record and proceedings requisitioned by this Court.

5. Ms. Chavan, the learned Counsel for the appellant,

strenuously submitted that the impugned judgment and award

is wholly unsustainable for the singular reason of absence of

FA1072-2007.DOC

proof of involvement of the bus bearing no.MH-04/G-1071,

which was insured with opponent no.2. Since the application

was under Section 166 of M. V. Act, 1988, it was incumbent

upon the applicants to establish negligence on the part of the

driver of the said vehicle. In the absence of proof of involvement

of the said vehicle in the accident, the learned Member

committed a manifest error in returning a finding that the

accident occurred due to the negligence on the part of the driver

of the said bus. The edifice of this submission was sought to be

built on the premise that in the first information report the

vehicle number was not at all mentioned and the report was

lodged to the effect that an unknown vehicle had knocked down

the deceased.

6. Ms. Chavan further urged with a degree of vehemence that

the learned Member committed a grave procedural error in

allowing the applicants to place on record a copy of the charge-

sheet lodged in CR No.247/2002, after conclusion of the hearing

and, thereupon, arriving at the conclusion that the involvement

and negligence were proved. On the first principles of law,

according to Ms. Chavan, the charge-sheet could not have been

read in evidence without providing an opportunity of hearing to

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the opponents. Thus, the impugned judgment and award

deserves to be quashed and set aside, urged Ms. Chavan.

7. As against this, Mr. Mendon, the learned Counsel for the

respondents - original applicants, would urge that the

endeavour on the part of the appellant - insurer to now question

the involvement of the vehicle does not deserve countenance.

Emphasis was laid on the fact that no such defence was raised

before the Tribunal by filing a written statement and the

application proceeded without written statement against

opponent no.2 - insurer. Secondly, there was adequate material

before the learned Member to arrive at the justifiable conclusion

that the offending vehicle was involved in the accident, in the

form of FIR and the statements of the witnesses recorded during

the course of investigation. Thirdly, the charge-sheet was placed

on record by the applicants pursuant to the direction of the

learned Member of the Tribunal.

8. Mr. Mendon would further urge that having regard to the

nature of the proceeding and the beneficial object of the M. V.

Act, 1988, strict rules of evidence cannot be made applicable to

the applications under Section 166 of the M. V. Act, 1988.

What has to be seen is whether the death occurred on account

of the "use" of the vehicle in question. In the case at hand,

FA1072-2007.DOC

according to Mr. Mendon, the applicants have established

beyond the pale of controversy that the offending vehicle was

involved in the accident and it occurred due to negligence on the

part of the driver of the said vehicle. Resultantly, there is no

substance in the appeal, urged Mr. Mendon.

9. I have given anxious consideration to the aforesaid

submissions. First and foremost the fact that the appellant -

original opponent no.2/insurer did not file written statement

before the Tribunal, cannot be lost sight of. The averments in

the application thus went untraversed. It is trite that in the

absence of pleadings, no amount of evidence can be of any

assistance to a party to substantiate its case. In view of the

failure on the part of opponent no.2 to controvert the assertions

in the application that the deceased met death on account of

the accident involving the offending vehicle, insured with

opponent no.2, the issue could have been decided against

opponent no.2, on the principle of non-traverse alone.

10. The learned Member of the Tribunal appraised the

evidence of applicant no.1 - Smt. Vajarabai Sadaram (PW-1) and

found support to her claim in the FIR (Exhibit-9), scene of

occurrence panchnama (Exhibit-10), inquest on the body of the

deceased (Exhibit-11) and the postmortem report (Exhibit-12).

FA1072-2007.DOC

The latter indicated that the autopsy surgeon was of the opinion

that the cause of death of the deceased was hemorrhage and

shock due to multiple injuries (unnatural). Indisputably, first

information report No.247/2002 was lodged against the driver of

an unidentified vehicle. The identity of the vehicle, however,

seems to have been revealed during the course of investigation,

especially in the statement of Mohan Kakade, who informed the

police that the bus bearing No.MH-04/G-1071 gave dash to the

deceased. It is pertinent to note that Malaiyya Kayate, the first

informant, refers to the said Mohan as the person as who gave

the intimation about the accident which the deceased met.

11. In the backdrop of the aforesaid facts, Ms. Chavan

canvassed a two-pronged submission. One, the involvement of

the vehicle cannot be said to have been established as the said

Mohan Kakade was not examined as a witness for the

applicants. Two, an inference about the involvement of the

vehicle could not have been drawn on the basis of the

conclusion arrived at by the investigating officer in the report

submitted under Section 173 of the Code of Criminal Procedure,

1973 ("the Code"), post completion of investigation in FIR

No.247/2002, which was filed after the conclusion of the

hearing along with the application Exhibit-23.

FA1072-2007.DOC

12. At the outset, it is imperative to note that, the roznama of

the proceedings before the Tribunal reveal that the Tribunal had

directed the applicants to place on record the copy of the

charge-sheet, as is evident from order dated 18th September,

2006, and the order sheet of even date. Pursuant to the said

direction, the applicants had placed copy of the charge-sheet on

the record of the Tribunal, which reveals that the driver of the

offending vehicle was prosecuted for the offence punishable

under Section 304-A of the Penal Code and Section 134(a) and

(b) of the M. V. Act, 1988, for having caused death of the

deceased by driving the offending vehicle baring No.MH-04/G-

1071, in a rash and negligent manner.

13. Whether the aforesaid approach of the Tribunal is

justifiable? Ms. Chavan, the learned Counsel for the appellant

urged that it was not, as it was incumbent upon the applicants

to establish that the offending vehicle was involved in the

accident and the impact occurred due to the negligence on the

part of the driver of the offending vehicle. To bolster up this

submission, the learned Counsel for the appellant placed

reliance on the judgments in the cases of Minu B. Mehta vs.

Balkrishna Ramchandra Nayan,1 Ranjana Prakash and others

1(1977) 2 SCC 441.

FA1072-2007.DOC

vs. Divisional Manager and another2, The New India Assurance

Co. Ltd. vs. Smt. Alpa Rajesh Shah, 3 Surendra Kumar Arora

and anr. vs. Dr. Manoj Bisla & ors.4 and Mr. Pukh Raj Bumb vs.

Jagannath Naik and ors.5

14. I have perused the aforesaid pronouncements. Reference

to the principles enunciated therein, does not seem warranted

for the purpose of the determination of the controversy at hand

as the same hinges upon the correct appreciation of the nature

of the proceedings under Section 166 of the M.V. Act, 1988, the

standard of proof to decide the aspect of negligence, and the

approach expected of the Tribunal and Court in determining the

claim for compensation.

15. Mr. Mendon, the learned Counsel for the respondents,

rightly placed reliance on the judgment of the Supreme Court in

the case of Bimla Devi and others vs. Himachal Road Transport

Corpn. & ors.6, wherein the Supreme Court expounded the

nature of the proceedings under Section 166 of the M. V. Act,

1988, and the function of the Tribunal. The observations in

paragraphs 11 to 15 are material and hence extracted below:

2(2011) 4 SCC 639.

32014(2) MhLJ 17.

4(2012) 4 SCC 552.

52014(4) MhLJ 447.

6(2009) 13 Supreme Court Cases 530.

FA1072-2007.DOC

"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 post- mortem report vis-a-vis the averments made in a claim petition.

12. The deceased was a Constable. Death took place near a police station. The post-mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of a constable has taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus- stand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body.

13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate the respondent Nos.2 and 3. Claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the First Information Report had been lodged in relation to an accident could not have been ignored.

14. Some discrepancies in the evidences of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying burden of proof in terms of the provisions of Section 106 of the Indian Evidence Act as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by the respondent Nos.2 and 3.

15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to

FA1072-2007.DOC

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."

16. The Supreme Court has enunciated the law that while

dealing with an application under Section 166 of the M. V. Act,

1988, a Tribunal stricto sensu is not bound by the pleadings of

the parties. Strict proof of an accident caused by a particular

vehicle in a particular manner may not be possible to be done

by the claimants. These aspects are to be established on the

touchstone of preponderance of probability.

17. The issue of nature of proceedings again came up for

consideration before a Three Judge Bench of the Supreme Court

in the case of United India Insurance Company Limited vs. Shila

Datta and others.7 The Supreme Court enunciated in clear and

explicit terms that a claim for compensation filed before the

Tribunal is neither a suit nor an adversarial lis in a traditional

sense. It is a proceeding in terms of and regulated by the

provisions of Chapter XII of the Act, which is a complete Code in

itself. The Supreme Court enumerated the significant aspects

as regards the determination of compensation by the Tribunal.

The following propositions are instructive and, thus, extracted

below:

7(2011) 10 Supreme Court Cases 509.

FA1072-2007.DOC

"(i) ....

(ii) The rules of 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 moto initiated by the Tribunal.

(iii) .... (iv) ....

(v) Though the tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. On receipt of an application (either from the applicant or suo motu registration), the Tribunal gives notice to the insurer under Section 149(2) of the Act, gives an opportunity of being heard to the parties to the claim petition as also the insurer, holds an inquiry into the claim and makes an award determining the amount of compensation which appears to it to be just. (Vide Section 168 of the Act).

(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 the assist it in holding the enquiry (vide Section 169 of the Act).

(vii) .... (viii) ....

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."

18. A profitable reference can also be made to the judgment of

the Supreme Court in the case of Dulcina Fernandes and others

vs. Joaquim Xavier Cruz and another8 in the said case, the

claimants were non-suited by the Tribunal on the premise that

the claimants failed to prove negligence on the part of the driver

of the offending vehicle. One of the reasons ascribed was the

non-examination of pillion rider by the claimants, in support of

the claim.

8(2013) 10 Supreme Court Cases 646.

FA1072-2007.DOC

19. Adverting to the pronouncement of the Supreme Court in

the cases of Bimla Devi (supra) and Shila Datta (supra), the

Supreme Court held that keeping in view of the nature of the

jurisdiction that is exercised by a Tribunal under the Act, it was

not correct on the part of the Tribunal to hold against the

claimants for their failure to examine the pillion rider. The fact

that a criminal case was registered against the driver of the

offending vehicle and he was sent up for trial was considered by

the Supreme Court, despite the acquittal of the said driver in

the resultant prosecution, holding, inter alia, that what cannot

be overlooked is the fact that upon the investigation of the case

registered against the first respondent, prima facie, materials

showing negligence were found to put him on trial.

20. In the case of Mangala Ram vs. Oriental Insurance

Company Limited and others,9 the Tribunal had recorded the

finding of negligence against the driver of the offending vehicle,

on the basis of the FIR and the charge-sheet. The Tribunal had

proceeded on the premise that there was no reason to disagree

with the opinion of the investigating agency as regards the

negligence on the part of the driver of the offending vehicle. The

High Court had, however, reveresed the finding on the premise

that since the oral evidence regarding the involvement of the

9(2018) 5 Supreme Court Cases 656.

FA1072-2007.DOC

offending vehicle was discarded by the Tribunal, a contrary

finding could not have been recorded on the basis of the police

papers. The Supreme Court referred to its previous

pronouncements, including the decisions in the case of Bimla

Devi (supra) and Dulcina Fernandes (supra), and ruled that the

High Court committed manifest error in reversing the holistic

view of the Tribunal with reference to the statements of

witnesses forming part of the charge-sheet, FIR, jeep seizure

report in particular.

21. The aforesaid pronouncements indicate that the legal

position has crystallized to the effect that the Tribunal

constituted under Section 165 of the M. V. Act, 1988, is not to

be hidebound by the strict rules of procedure and evidence. In

the light of the jurisdiction exercised by the Tribunal, it is

enjoined to take a holistic view of the matter, and, on the basis

of the material placed before it, arrive at a justifiable conclusion

as regards the involvement of the vehicle and negligence on the

touchstone of preponderance of probability. Such a finding of

involvement and negligence can, in a given case, be based on

the report filed by the police under Section 173 of the Code, post

investigation into the report of death or injury having been

caused by driving the vehicle in a rash and negligent manner.

FA1072-2007.DOC

There is no warrant to discard the investigation papers as

untrustworthy. Often they reflect the contemporaneous state of

affairs.

22. On the aforesaid touchstone, reverting to the facts of the

case, in my considered view, the approach of the learned

Tribunal in calling for the charge-sheet was commendable. It is

not the case that on the day of occurrence, the identity of the

offending vehicle was not revealed. The statement of Mohan

Kakade recorded on the very day of occurrence revealed the

identity of the offending vehicle. What is of significance is the

fact that the source of information of the first informant was the

narration of facts by the said Mohan Kakade, which is

specifically mentioned in the first information report. In this

view of the matter, the Tribunal was within its rights in taking

into the account the report under Section 173 of the Code and

the conclusion arrived at by the investigating agency regarding

the negligence on the part of the driver of the offending vehicle.

23. I do not find any justifiable reason to take a different view

of the matter. Thus, I am not persuaded to accede to the

submission on behalf of the appellant that the aspects of

involvement and negligence have not been proved. Resultantly,

the appeal fails.

FA1072-2007.DOC

24. Hence, the following order:

:ORDER:

(i) The appeal stands dismissed with costs.

(ii) Award be drawn accordingly.

[N. J. JAMADAR, J.]

SANTOSH SUBHASH KULKARNI Digitally signed by SANTOSH SUBHASH KULKARNI Date: 2021.12.04 14:32:53 +0530