Satar Mohammad vs Pranay Sethi And Others
2021 Latest Caselaw 4235 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 31st DAY OF AUGUST 2021

                            BEFORE

            HON'BLE MS. JUSTICE JYOTSNA REWAL DUA




                                                        .

            FIRST APPEAL FROM ORDER No. 401 of 2019

          Between:-





     1. SATAR MOHAMMAD
        AGED ABOUT 56 YEARS,
        S/O SH. MOHAMMAD SHARIF,
        R/O VILL. JOHRON, P.O. PURWALA,
        TEHSIL PAONTA SAHIB,





        DISTT. SIRMAUR (H.P.)
        OWNER OF TATA ACE
        NO.UK-07CA-0807

     2. KADIR KHAN
        AGED ABOUT 28 YEARS,

        S/O SH. SATAR MOHAMMAD,
        R/O VILL. JOHRON, P.O. PURWALA,
        TEHSIL PAONTA SAHIB,
        DISTT. SIRMAUR (H.P.)


                                       ......APPELLANTS
          (BY SH. OWAIS KHAN PATHAN, ADVOCATE)

          AND




    1.    SMT. HUSNA BEGUM,





          W/O LT. SH. MUSTAQ ALI,
          S/O LT. SH. SHARIF MOHAMMAD





    2.    FIROZ ALI,
          S/O LT. SH. MUSTAQ ALI
    3.    NASEEM ALI,
          S/O LT. SH. MUSTAQ ALI
    4.    MEENA,
          D/O LT. SH. MUSTAQ ALI
    5.    SHABNAM,
          D/O LT. SH. MUSTAQ ALI




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    6.   SMT. SHAKINA BUGUM,
         WD/O LT. SH. SHARIF MOHAMMAD,
         M/O LT. SH. MUSTAQ ALI,
         ALL ARE THE RESIDENTS OF
         VILLAGE KOLAR, TEHSIL PAONTA
         SAHIB, DISTT. SIRMAUR (H.P.)




                                                               .

    7.   THE NATIONAL INSURANCE COMPANY
         THROUGH ITS MANAGER,
         Y-POINT BADRIPUR,





         TEHSIL PAONTA SAHIB,
         DISTT. SIRMAUR (H.P.)
                                               ......RESPONDENTS
         (NONE FOR R1 TO R-6, THOUGH SERVED





         SH. SAMBHAV BHASIN, ADVOCATE VICE
         SH. DEEPAK BHASIN, ADVOCATE, FOR R-7)

           This Appeal coming on for orders this day, the Court

     delivered the following:

                           JUDGMENT

Learned Motor Accident Claims Tribunal-I,

Sirmaur District at Nahan (in short 'Tribunal') awarded a

compensation of Rs.9,82,600/- alongwith interest @ 9% per

annum in favour of the claimants. In terms of the award,

the amount of compensation was to be deposited at the first

instance by the Insurer of the vehicle, who was given a right

to recover the same from its owner. Aggrieved, the

insured/owner of the vehicle as well as its driver have filed

this joint appeal.

2. Facts:-

2(i). Widow, four children and mother of the

deceased Mustaq Ali filed a claim petition under Section

166 of the Motor Vehicles Act on 10.08.2015. It was stated

.

that Mustaq Ali was driving his Motorcycle bearing No.HP-

18B-3881 on 06.04.2015. Sh. Darshan Singh was the

pillion rider. The motorcycle was being driven at a normal

speed and on the correct side of the road. When the

motorcycle reached near Bus Stand Kolar, a Tata Ace

vehicle bearing Registration No.UK-07CA-0807 with a

Mixture Machine tied on its back side, came from the

opposite direction. This vehicle was being driven in a rash

and negligent manner by its driver. When the motorcycle

reached near the offending vehicle, the Mixture Machine got

detached from it and hit the motorcycle. Mustaq Ali and

pillion rider Darshan Singh fell on the road alongwith the

motorcycle. The Mixture Machine struck on the head of

Mustaq Ali. He suffered brain injury and multiple fractures

on his body. Various simple and grievous injuries were

caused to him. Pillion rider also suffered injuries in the

accident. Mustaq Ali was initially taken to Civil Hospital

Paonta Sahib. Thereafter, he was taken to Synergy Institute

of Medical Sciences, Dehradun, Combined Medical Institute

of Dehradun, Emergency Medical Services, Dehradun, Max

Help Care, Dehradun and finally to Post Graduate Institute

of Medical Education and Research, Chandigarh, where he

breathed his last on 30.04.2015.

2(ii). The claimants pleaded that Mustaq Ali remained

.

under intensive medical treatment from 06.04.2015 to

30.04.2015. Rs.5.50 Lakhs were spent on his treatment

including the conveyance charges. Rs.1 Lakh was spent on

the funeral and post death ceremonies of Mustaq Ali.

2(iii). The claimants asserted that Mustaq Ali was 45

years old at the time of accident. He earned Rs.25,000/- per

month from his Motor Mechanic shop at Kolar on National

Highway 72 and Rs.10,000/- per month from agriculture

work and by selling milk. In all, the deceased was stated to

be earning Rs.35,000/- per month from all sources. The

claimants prayed for compensation of Rs.25 Lakhs in all.

2(iv). The owner and the driver of the vehicle filed a

joint reply to the claim petition. They denied that any

accident of any kind involving their vehicle took place with

the motorcycle in question. Their case was that the

claimants had filed imaginary claim against them. It was

also stated that even if it is assumed for the sake of

argument that the Mixture Machine was tied to their

vehicle, then also there was no possibility of the said

Mixture Machine moving on its own to the middle of the

road, thereby hitting the motorcycle causing injuries to

Mustaq Ali. That the vehicle pulling a heavy Mixture

Machine tied on its back, cannot be driven at high speed.

Alternatively, it was pleaded that in case the owner is held

.

liable for payment of compensation, in that event, liability

to pay the compensation amount has to be fastened upon

the Insurance Company with whom the vehicle was

insured.

2(v). The Insurance Company in its reply took a

stand that the Driver of the Vehicle No.UK-07CA-0807 was

not holding a valid and effective driving license at the time

of the accident. The vehicle was being driven in

contravention of terms of insurance policy. The Insurer

denied its liability to pay any compensation on the ground

that the Mixture Machine was neither insured with it nor it

falls under the definition of the Motor Vehicle.

3. After considering the respective pleadings,

evidence and contentions raised by the parties, the learned

Tribunal held that the accident occurred on account of rash

and negligent driving of the driver of Tata Ace Vehicle

No.UK-07CA-0807. The age of Mustaq Ali at the time of

accident was ascertained as 45 years. His income was

assessed at Rs.6000/- per month. Applying the law laid

down by the Hon'ble Apex Court in National Insurance

Company Limited versus Pranay Sethi and others, AIR 2017

SC 5157, 30% income was added for arriving at deemed

income of the deceased keeping in view his age at the time

of the accident. The deemed income of the deceased was

.

thus determined as Rs.6000/- plus 30% of Rs.6000=

Rs.7800/- per month. In accordance with the law laid down

in Smt. Sarla Verma & another Vs. Delhi Transport

Corporation & another, (2009) 6 SCC 121, 1/4th income of

the deceased was deducted towards his personal expenses.

The total contribution by him towards his family was thus

worked out at Rs.5850/- per month, i.e. Rs.70,200/- per

annum. Since the deceased was aged 45 years, therefore,

keeping in view the ratio of Smt. Sarla Verma's case, supra,

the multiplier of 13 was applied and total loss of

dependency was assessed at Rs.9,12,600/-, i.e. Rs.70,200 x

13. Besides this amount, in accordance with the ratio laid

down in Pranay Sethi's case, the widow of the deceased was

held entitled to a sum of Rs.40,000/- on account of loss of

consortium. The claimants were also held entitled for

Rs.15,000/- on account of loss of estate and a sum of

Rs.15,000/- on account of funeral expenses. The total

payable compensation in all was assessed at Rs.9,82,600/-

alongwith interest @ 9% per annum from the date of filing

of petition.

The insurer of the vehicle was directed to pay

the compensation amount in the first instance with a right

to recover the same from the owner of the vehicle.

It is in the aforesaid background that the owner

.

of the vehicle has filed the instant appeal against the award

dated 15.06.2019. The driver of the vehicle has also joined

as an appellant in the appeal.

4. Heard learned counsel for the parties and gone

through the case documents.

During hearing of the case, learned counsel for

the appellants produced the relevant case records, viz.

pleadings, statements and the documents. With the

assistance of learned counsel for the parties, I have gone

through them. In my considered opinion, this appeal

deserves to be dismissed for the following reasons:-

4(i). The motorcycle in question was being driven by

Mustaq Ali on 06.04.2015 and Darshan Singh was the

pillion rider. Darshan Singh is the only eye witness. He

stepped into the witness box as PW2 and tendered in

evidence his affidavit, Ext. PW2/A. In this affidavit, he

stated that on 06.04.2015 at about 2:00 pm, he was the

pillion rider on a motorcycle driven by Mustaq Ali. The

motorcycle was being driven at normal speed. While they

were proceeding from Kolar to Dhaulakuan, a Tata Ace

vehicle bearing No.UK-07CA-0807 came from Nahan side at

a high speed. A Mixture Machine was tied on the backside

of this vehicle. It was being pulled by the Tata Ace vehicle.

When the motorcycle reached near the offending vehicle,

.

the Mixture Machine got detached. It hit the motorcycle.

Because of the impact, the motorcycle fell on the road.

Mustaq Ali and Darshan Singh suffered injuries in the

accident. Mustaq Ali died on 30.04.2015.

4(ii). Darshan Singh also stated that he had lodged

FIR regarding the accident with the police. The FIR was

exhibited as Ext. PW1/B. In his cross-examination, he has

denied the suggestion that the Mixture Machine was not

tied to the vehicle in question. He has denied that neither

the accident occurred due to rash and negligent driving of

appellant No.2 nor any mixture was tied on the backside of

the offending vehicle. He has denied that the accident

occurred due to negligence of the driver of the Motorcycle.

4(iii). The driver of the offending vehicle, i.e. appellant

No.2, also stepped into the witness box as RW1. He stated

that he was driving the Tata Ace vehicle on 06.04.2015.

When he reached at Kolar, a motorcycle came from opposite

side, being driven at a fast speed. It collided with the

Mixture Machine and fell on the road. He stated that the

accident could not be attributed to him. Accident was

caused due to rash and negligent driving of the motorcycle

by the deceased Mustaq Ali. This witness admitted that the

FIR, Ext. PW1/B, was lodged against him. A case under

Sections 279, 337 and 304-A of the Indian Penal Code was

.

registered against him. The FIR states that the accident had

taken place due to the rash and negligent driving of

appellant No.2. In the cross-examination, appellant No.2

denied not producing the permit of the offending vehicle. He

stated that the permit was not required to ply the vehicle in

question and only tax was required to be deposited. He

stated that the Mixture Machine, which was involved in the

accident, was neither tied with the vehicle nor he was

taking the same. He has feigned his ignorance as to

whether the Mixture Machine was insured or not. He stated

that he was not aware that who was the owner of the

mixture. He stated that the said Mixture Machine was not

loaded in his vehicle. He admitted that Mustaq Ali died in

the accident. He also admitted that he was arrested and his

vehicle was impounded at the time of the accident.

4(iv). In 2021 (1) SCC 171, titled Anita Sharma

and Others Vs. New India Assurance Company Limited

and Another, Hon'ble Supreme Court reiterated well

established principle that strict principles of evidence and

standards of proof like in a criminal trial are inapplicable in

MACT claim cases. The standard of proof in such like

matters is one of pre-ponderance of probabilities, rather

than beyond reasonable doubt. One needs to be mindful

that the approach and role of courts while examining

.

evidence in accident claim cases ought not to be to file fault

with non-examination of some best eye witnesses, as may

happen in a criminal trial but instead the material placed

on record should be analysed to ascertain whether

claimant's version is more likely than not true. Relevant

paras of the judgment are extracted hereunder:-

"17. Unfortunately, the approach of the High Court was not

sensitive enough to appreciate the turn of events at the spot,

or the appellant claimants' hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometers away in an altogether different State. Close to the facts of the case in hand, this Court in Parmeshwari v. Amir Chand, viewed that: (SCC p.638, para

12).

"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.

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."

(emphasis supplied)

18. The failure of the respondents to cross examine the solitary eye witness or confront him with their version, despite adequate opportunity, must lead to an inference of tacit admission on their part. They did not even suggest the witness that he was siding with the claimants. The High Court has failed to appreciate the legal effect of this absence of cross-examination of a crucial witness.

21. Equally, we are concerned over the failure of the High Court

.

to be cognizant of the fact that strict principles of evidence

and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be

mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with nonexamination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on

record by the parties to ascertain whether the claimant's version is more likely than not true.

22. A somewhat similar situation arose in Dulcina Fernandes v.

Joaquim Xavier Cruz4 wherein this Court reiterated that: (SCC p.650, para 7) r "7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was

driving the pickup van as set (2013) 10 SCC 646. up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal

RTC" (emphasis supplied)"

Hon'ble Apex Court in Sunita & Ors Vs.

Rajasthan State Road Transport Corporation & Anr.,

2020 (13) SCC 486, held 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.

In the instant case, the only eye witness

Darshan Singh has stepped in the witness box. He stated

that the accident occurred due to rash and negligent driving

of appellant No.2. He also stated that the Mixture Machine

was tied at the backside of the offending vehicle. He has

also stated that he was pillion rider on the motorcycle

driven by deceased Mustaq Ali and that when the

motorcycle reached near the offending vehicle at Kolar, the

Mixture Machine got detached from the offending Tata Ace

vehicle. It collided with their motorcycle. Because of the

impact, the motorcycle fell on the road. In this accident,

severe injuries were caused to Mustaq Ali. Therefore, the

findings recorded by the learned Tribunal that the accident

had occurred because of the negligent driving of appellant

No.2, are in order and do not call for any interference.

4(v). It is not the case of the appellants that the

insurance policy permitted them to attach the Mixture

Machine at the back side of the offending vehicle. Learned

counsel for the appellants has also not advanced any

argument in this regard. It is, therefore, apparent that the

offending Tata Ace vehicle was being driven in

contravention of the provisions of the Insurance Policy. The

Mixture Machine had been tied to the Tata Ace vehicle and

.

was being carried on the road in that manner, without any

authority. Since the offending vehicle was being plied in

violation of the conditions of Insurance policy (Ext. RW1/B),

therefore, the learned Tribunal below did not err in

directing the Insurance Company to pay the compensation

amount to the claimants, being Insurer of the vehicle, with

the stipulation that the Insurance Company shall be

entitled to recover the same from appellant No.1.

No other point was urged.

For all the aforesaid reasons, I find no merit in

the instant appeal and the same is accordingly dismissed.

                                               Jyotsna Rewal Dua
    August 31, 2021                                  Judge
        Mukesh