Shaktabhai Ramabhai Patel vs Meghabhai Bhemabhai Patel
2023 Latest Caselaw 6352 Guj

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                C/FA/1788/2022           JUDGMENT DATED: 31/08/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO. 1788 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                    SHAKTABHAI RAMABHAI PATEL
                              Versus
                    MEGHABHAI BHEMABHAI PATEL
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,2,3
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 31/08/2023

                                 ORAL JUDGMENT

1. The claimant has challenged the judgment

of dismissal passed in M.A.C.P. No.3417 of 2009

by Motor Accident Claims Tribunal (Auxi.),

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Banskantha at Deesa on 29.11.2021, which was

originally recorded as M.A.C.P. No.484 of 2007.

The notice has been served for final hearing, but

none has appeared for the respondents.

2. Advocate Mr. Vishal C.Mehta for the

appellant submitted that the Tribunal has erred

in not appreciating the materials and the

documents on record and has erred in disbeliving

the rash and negligent driving on the part of the

driver of the offending motorcycle, and has erred

in not appreciating the fact that the complaint,

Exh.37, was filed by the motorcyclist himself,

who was driving in excessive speed and due to

sudden application of the brakes, the accident

had led to injuries sustained by the claimant.

2.1 Advocate Mr. Mehta submitted that the

respondent no.3's version, as a driver of the

offending vehicle, gets corroborated in the

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panchnama at the place of accident, at Exh.38;

brake marks are clearly mentioned, which proves

the excessive speed and rash and negligent

driving. Advocate Mr. Mehta further stated that

the learned Tribunal ought to have considered the

fact that the evidence produced on record has not

been controverted by the respondents, where, in

the present case, necessary documents in the form

of medical evidence, complaint, panchnama,

insurance policy as well as counterfoil of the

charge-sheet were placed on record, and, even if

documents with regard to the income was placed in

support of the evidence of the claimant, which

was in the form of examination-in-chief, at

Exh.25. He submits that disability certificate,

discharge card and case papers along with medical

bills proves the fact that claimant had suffered

injuries because of vehicular accident.

2.2 Advocate Mr. Mehta stated that the

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complainant is the motorcyclist, who had not

immediately filed the FIR, and according to the

facts of the case, the claimant - injured, was

riding on Motorcycle bearing No.GJ-8L-5831, as a

pillion rider driven by complainant Maheshbhai

Ranchhodbhai Patel, and were going to Radhanpur.

The motorcycle was driven in full speed in rash

and negligent manner and when they were on

Ratanpur to Gharvadi Road, suddenly to save a dog

crossing the road, the motorcyclist applied

brakes and, therefore, the motorcycle got slipped

and accident occurred.

2.3 Advocate Mr. Vishal Mehta submitted that

the learned Tribunal has erred by dismissing the

claim petition coming to conclusion that mere

driving of a vehicle at a high speed would not

lead to an inference that it was driven

negligently and rashly to have caused accident

resulting into injuries to the appellant.

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2.4 Advocate Mr. Mehta submitted that the

Tribunal has erroneously come to a conclusion

that speed is no criteria to establish the fact

of rash and negligent driving and form an opinion

that it was a case of speeding of vehicle which

does not amount to rash and negligent driving of

the motorcyclist and on that ground had avoided

deciding the quantum and liability, observing

that the applicant has failed to prove the issue

of negligence, and, the injuries sustained were

actually out of the alleged accident; hence,

concluded that the applicant was not legally

entitled to claim the compensation amount from

the respondents.

2.5 Advocate Mr. Vishal Mehta stated that

the injured claimant himself had entered into the

witness box to prove the fact of rash and

negligent driving. Further stated that the

complaint was given by tortfeasor himself, hence,

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the words like "rash and negligent driving" would

never be incorporated in his own complaint, and,

further there is no denial of the accident by

respondent no.3 himself, who was the driver of

the motorcycle at the time of the accident.

2.6 Referring to the judgment of Ravi Vs.

Badrinarayan, reported in (2011) 4 SCC 693,

Advocate Mr. Vishal Mehta submitted that the

delay in lodging the FIR could not be considered

as fatal in a case for compensation for the

injuries sustained in the accident, submitting

the delay in lodging the FIR cannot be made a

ground for dismissing the claim compensation.

3. In United India Insurance Company Ltd.

Vs. Shila Datta & Ors., reported in (2011) 10 SCC

509, it was observed that rule of pleadings do

not strictly applied in the claim petition under

Motor Vehicle Act. The Tribunal considers the

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claim and determines the compensation, not by way

of adversarial system, while summary procedure is

required to be followed.

3.1 In New India Assurance Co. Ltd. Vs.

G.Vijaya Kandiban & Anr., rendered by Madras High

Court, it was held that, the FIR cannot be raised

to pedestrial higher than the statement on oath,

wherein a defense was raised that there had been

no accident between two vehicles, as the claimant

and the owner of the vehicles are closed friends

and that the claim has been raised on collision

to receive compensation from the Insurance

Company.

3.2 While in Brestu Ram Vs. Anant Ram And

Ors., reported in 1990 ACJ 333, it was observed

that even if, there is no report to the police,

no adverse inference could be drawn and it was

held that Tribunal cannot draw inference as if it

was trying Criminal Case.

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3.3 In Mangla Ram Vs. Oriental Insurance

Company Limited And Ors., reported in (2018) 5

SCC 656, the Hon'ble Supreme Court has noted the

decision of Dulcina Fernandes Vs. Joaquim Xavier

Cruz, reported in (2013) 10 SCC 646, where the

Court had examined the similar situation, that

the evidence of claimant's eyewitness was

discarded by the Tribunal, and the respondent in

that case was acquitted in the criminal case

concerning the accident. The Apex Court was an

opinion that upon investigation of the case

registered against the respondent, prima facie

materials showing negligence were found to put

him on trial, this fact could not be overlooked.

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 has been noted in case of Bimla Devi

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Vs. Himachal RTC, reported in (2009) 13 SCC 530.

3.4 In Mangla Ram Vs. Oriental Insurance

Company Limited And Ors. (supra), the Apex Court

has explained the concept of negligence in

connection with the claim compensation cases in

the motor vehicular accident. The relevant

observation is as under:

                 "Negligence             is      only        one       of
         the      species        for        compensation               in
         respect          of    the      accident            arising

out of the use of motor vehicles. There are other premises for such cause of action. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the rule in Fletcher,

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(1868) LR 3 HL 330 can apply in motor accident cases. Like any other common law principle, which is acceptable to out jurisprudence, the rule in Rylands case can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, said rule is adopted in claims for compensation made in respect of motor accidents."

3.5 Further referring to the standard of

proof, the necessary ingress of claim petition

under section 166 of the Motor Vehicle Act, the

Apex Court has held as under:

"While dealing with the 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

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compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. The Tribunal has to take a holistic view of the matter. A strict proof of an accident caused by a particular vehicle in a particular manner may not be possible. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt cannot be applied. The approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability."

4. In the present matter, the learned

Tribunal appears to be carried away with the fact

that the expression "rash and negligent driving"

has not been mentioned in the F.I.R., and further

the complainant in his complaint had stated that

his motorcycle during the night time was in full

speed and in order to protect a dog on the road,

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he had applied brakes and, therefore, the

incident had occurred. The learned Tribunal on

such facts of the F.I.R. was of the view that the

complainant, who was driving the motorcycle, has

himself mentioned about the said facts in the

last line of the complaint given by him, and, in

spite of that, as per the Tribunal just to create

the cause of filing false MACP Case, has observed

in the judgment in Bold Letters of the

complainant that 'he was driving his motorcycle

at the full speed and in order to save a dog on

the road, he had applied brakes and the incident

had occurred', was purposefully and deliberately

not stated in the main claim petition, Exhibit-1,

and also on the deposition of the applicant vide

Exhibit-25.

4.1 The learned Judge, thus, to that facts

of the matter has observed in paragraph 11.8, as

under:

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"11.8 Above act of the applicant and his ld. Advocate itself speaks about the fact that, before drafting the pleadings of present macp case on hand, it was noticed by the ld. Advocate, that if version of the complaint is produced in as it manner then the applicant wont be legally entitled to receive the compensation amount from the opponents, and therefore in order to fill up the lacuna, version of the original complaint vide Ex.37, is changed and manipulated and thereafter said additions and omissions are done purposefully and deliberately in the main claim petition and in the deposition given on oath, by the applicant."

5. Here, in this case, the factum of

vehicular accident was proved by the evidence of

the claimant. Further, reference has also been

made in the medical documents produced by him

about the accident and the same gets corroborated

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by the complaint given by respondent the no.3, as

well supported by the counterfoil of the charge-

sheet, which shows that the complainant himself

is an accused for the proceeding under sections

279, 338 and 337 of the PIC and section 177 and

184 of the M.V. Act. The learned Tribunal, in the

present matter, has gone into the details, which

were not warranted in the motor accident claim

compensation cases, where the learned Tribunal

had adopted the principle of proving the case

"beyond reasonable doubt", where actually the

proceeding under Motor Vehicle Act, was required

to be decided on the basis of preponderance of

probability, and, thus the degree of proof

require is much less in the claim proceedings,

and as has been held in Mangla Ram Vs. Oriental

Insurance Company Limited And Ors. (supra), even

if there is no negligence on the part of the

driver and an accident happens while vehicle was

used, the owner and the insurance company of the

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vehicle are required to be held liable for the

damages to the person, who suffered on account of

such accident. The claimants are merely required

to establish a case on the touchstone of

preponderance of probability and certainly the

standard of proof beyond reasonable doubt cannot

be applied.

6. The learned Tribunal has erred in laying

down the burden on the claimant to establish

beyond reasonable doubt. The respondent no.3 -

driver, has failed to contradict the deposition

of the claimant and even respondent no.1 - owner

of the vehicle has failed to bring any adverse

evidence on record to contradict the say of the

claimant having sustained the injury because of

the vehicular accident.

7. In view of the above and to the reasons

given hereinabove, and as the motorcycle of

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respondent no.1 was driven by respondent no.3,

considering the evidence on record, the factum of

accident being proved by the documentary evidence

by way of complaint, medical evidence and the

evidence of the claimant as a pillion rider being

the eye witness to the accident, following the

judgment of Mangla Ram Vs. Oriental Insurance

Company Limited And Ors. (supra), the respondent

no.3 would be solely negligent for the accident,

and, therefore respondent nos.1 to 3 would be

jointly and severely liable to pay the

compensation.

8. In the result the judgment, order and

award dated 29.11.2021 in M.A.C.P. No.3417 of

2009 is quashed and set aside. The matter is

remitted back to the concerned Tribunal, since

the quantum has not been decided in accordance to

the evidence of the income. The learned Tribunal

is directed to decide the compensation for the

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claimant, providing opportunity to all the

concerned on record to give the evidence, now

only with respect to the quantum of compensation.

The matter be decided within a period of Four

Months from the date of receipt of writ of this

order.

9. Record and Proceedings be sent back to

the concerned Court forthwith.

(GITA GOPI,J) Pankaj