Karnataka High Court
Sri T C Mahesh vs The United India Insurance Co Ltd on 11 November, 2021
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11Th DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.2454 OF 2015 (MV)
c/w
MISCELLANEOUS FIRST APPEAL NO.2143 OF 2015 (MV)
IN MFA NO.2454 OF 2015
BETWEEN:
Sri T C Mahesh
S/o late Channaveerappa
Aged about 42 years
R/o Thevadehalli Village
Hagalawadi Hobli
Gubbi Taluk-572 216.
Tumkur District.
Now residing at "Shiva Sadana"
Behind Vivekananda English School
7th Cross, Vidyanagara
Tumkuru City-572 103.
...Appellant
(by Sri V B Siddaramaiah, Advocate)
AND:
1. The United India Insurance Co. Ltd.,
I Floor, Jayadeva Complex
P B No.54, B H Road
Tumkur City-572 101.
Represented by Manager.
2. Sri Narasimhamurthy P H
S/o Huchappa
Aged about 37 years
2
Residing at Kempanahalli
Pinnenahalli, Hosakere Post
Gubbi Taluk-572 126
Tumkur District.
...Respondents
(by Sri B C Seetharama Rao, Advocate for R1;
Sri K Shantharaj, Advocate for R2)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicle Act against the judgment and award
dated 28th October, 2014 passed in MVC No.141 of 2013 on the
file of the Principal Senior Civil Judge, Motor Accident Claims
Tribunal-X, Tumkur, dismissing the claim petition for
compensation.
IN MFA NO. 2143 OF 2015
BETWEEN:
Sri Sunil H N
S/o Narayanamurthi H D
Aged about 25 years
R/o Hoskere Village
Hagalawadi Hobli
Gubbi Taluk-572 216.
Tumkur District.
...Appellant
(by Sri V B Siddaramaiah, Advocate)
AND:
1. The United India Insurance Co. Ltd.,
I Floor, Jayadeva Complex
P B No.54, B H Road
Tumkur City-572 101.
Represented by Manager.
2. Sri Narasimhamurthy P H
S/o Huchappa
Aged about 37 years
Residing at Kempanahalli
Pinnenahalli, Hosakere Post
3
Gubbi Taluk-572 126
Tumkur District.
...Respondents
(by Sri B C Seetharama Rao, Advocate for R1;
Sri K Shantharaj, Advocate for R2)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicle Act against the judgment and award
dated 28th October, 2014 passed in MVC No.142 of 2013 on the
file of the Principal Senior Civil Judge, Motor Accident Claims
Tribunal-X, Tumkur, dismissing the claim petition for
compensation.
These Appeals coming on for hearing, this day, the court
delivered the following:
JUDGMENT
These appeals are filed by the claimants, challenging the
common judgment and award dated 28th October, 2014 in MVCs
No.141 and 142 of 2013 on the file of the Principal Senior Civil
Judge and Motor Accident Claims Tribunal-X at Tumkuru, (for
short hereinafter referred to as the 'Tribunal'), dismissing the
claim petitions.
2. For the sake of convenience, parties in these appeals
are referred to with respect to their ranking before the Tribunal.
3. It is the case of the claimants that on 05th September,
2012, claimants-Mahesh and Sunil were proceeding from
Hosakere to Arehalli on Hosakere-Chelur road and at about 9.50
p.m. Sunil went towards the left-side of the road to attend the
nature call and Mahesh was standing near Sunil. At that time,
the rider of Hero Honda Splendour Plus motorcycle bearing
registration No.KA-06/EF-8856 came in a rash and negligent
manner and hit the claimants and due to the said impact both
the claimants sustained grievous injuries and accordingly, the
Sunil H.N. filed MVC No.142 of 2013 and T.C. Mahesh, filed MVC
No.141 of 2013 on the file of the Tribunal, seeking
compensation.
4. On service of notice, respondents entered appearance
and filed detailed written statement. Respondent No.1
contended that the said accident occurred due to the negligence
on the part of the claimants and also stated that the vehicle in
question is insured with the second respondent and accordingly,
contended that the Insurance Company is to be indemnified, if
the compensation to be awarded in favour of the claimants.
5. Respondent No.2-Insurance Company contended that
the rider of the motorcycle was not having effective driving
licence to ride the motorcycle as on the date of the accident and
further contended that there was delay of 17 days in filing the
complaint and no explanation was made by the claimants with
regard to delay in lodging the complaint and therefore, the
respondent No.2 Insurance Company had taken a plea that it
creates a doubt with regard to occurrence of the accident and
accordingly, sought for dismissal of the claim petition.
6. On the basis of the pleadings on record, the Tribunal
has formulated issues for its consideration. In order to prove
their case, claimants were examined as PW1 and PW2
respectively, and they have examined the Doctor as PW3 and
produced 28 documents and the same were marked as Exhibits
P1 to P28. Court Commissioner was examined as CW1 and
marked two documents as Exhibits C1 and C2. No evidence was
adduced by the respondents. The Tribunal, after considering the
material on record, by its judgment and award dated 28th
October, 2014, dismissed the claim petitions on the ground that
the claimants fail to prove with reasonable explanation with
regard to delay in lodging complaint and accordingly dismissed
the claim petitions. Being aggrieved by the judgment and award
made by the Tribunal, claimants have preferred these instant
appeals.
7. I have heard Sri V.B. Siddaramaiah, learned counsel
appearing for the claimants and Sri B.C. Seetharama Rao,
learned counsel appearing for the Insurance Company and Sri K.
Shantaraj, learned counsel appearing for the respondent No.2.
8. Sri V.B. Siddaramaiah, learned counsel appearing for
the claimants argued that the finding recorded by the Tribunal
disallowing the claim petitions on the ground of delay in lodging
complaint is contrary to records. In this regard, he invited the
attention of the Court to wound certificates-Exhibits P4 and P5.
He further contended that Exhibit C1-copy of the MLC Register
extract would clearly establish the fact that claimants have
sustained injuries on account of road traffic accident and in
support of his contention, he relied upon the judgment of the
Hon'ble Apex Court in the case of RAVI v. BADRINARAYAN &
OTHERS reported in (2011) 4 SCC 693 and in the case of
SUMANGALA V. VIRUPAKSHI AND OTHERS reported in 2012
KANT M.A.C. 61 (KANT) and argued that delay in lodging the
complaint cannot be a sole basis to reject the claim petition
without considering the factual aspects of the case in the right
perspective.
9. Per contra, Sri B.C. Seetharama Rao, learned counsel
appearing for the respondent Insurance company argued that
the finding recorded by the Tribunal is based on the evidence on
record and no interference be made in respect of the judgment
and award passed by the Tribunal.
10. Sri Shantharaj K, learned counsel appearing for the
respondent No.2 supported the impugned judgment and award
made by the Tribunal.
11. Having heard the learned counsel appearing for the
parties, I have carefully perused the records. Perusal of the
record would indicate that the claimants have suffered injuries
on account of the road traffic accident occurred on 05th
September, 2012. It is the case of the claimants that the rider
of the motorcycle belonging to respondent No.2 dashed to the
claimants and as a result of the same, the claimants sustained
grievous injuries. The Tribunal rejected the claim petitions on
the ground that there is an inordinate delay of 17 days in lodging
the complaint and as such, expressed doubt with regard to
occurrence of the accident. In this regard, perusal of wound
certificates-Exhibits P4 and P5, would clearly indicate the fact
that the claimants were admitted to the nearby Primary Health
Centre of Hosakere, Gubbi Taluk around 9.58 pm on 05th
September, 2012. Claimant in MVC No.142 of 2013 was
admitted to Srinivasa Hospital on 06th September, 2012. Exhibit
P5 would indicate that the claimant-Sunil was admitted to
Srinivasa Hospital on 06th September, 2012 from Victoria
Hospital. In both the Exhibits P4 and P5, the cause for injury is
shown as road traffic accident which would clearly establish the
fact that immediately after the occurrence of the accident, the
claimants were taken to nearby Primary Health Centre, Hosakere
for first aid treatment. I have also noticed from the Exhibit C1-
MLC Register Extract produced before the Tribunal which would
indicate the fact that the claimant sustained injuries on account
of road traffic accident that took place on 05th September, 2012
at about 9.50 pm. In order to discern the truth relating to the
reason for delay in lodging the complaint, I have carefully
considered the complaint marked as Exhibit-P1(a). The reason
assigned in the complaint reads as under:
"£ÀAvÀgÀ AiÀiÁgÀÆ ¸ÀPÁðj ºÉƸÀPÉgÉ D¸ÀàvÉæUÉ ¸ÉÃj¹ aQvÉì PÉÆr¹
£ÀAvÀgÀ vÀĪÀÄPÀÆj£À «£ÁAiÀÄPÀ D¸ÀàvÉæUÉ M¼À gÉÆÃVAiÀiÁV ¸ÉÃj¸ÀÄvÁÛgÉ ªÀÄvÀÄÛ
¸ÀĤ®£À£ÀÄß ºÉaÑ£À aQvÉìUÁV «PÉÆÖÃjAiÀiÁ D¸ÀàvÉæ £ÀAvÀgÀ ¸ÀÄ¢gï gÀªÀgÀ
PÀqÉAiÀĪÀgÀÄ ¦AiÀiÁðzÀÄ PÉÆnÖgÀÄvÁÛgÉAzÀÄ w½zÀÄ PÉÆArzÉÝ. DzÀgÉ
«ZÁj¸À¯ÁV ¸ÀĤ®ß vÀAzÉ vÁ¬ÄAiÀĪÀgÀÄ aQvÉì PÉÆr¸ÀĪÀ PÁgÀt¢AzÁV
¦AiÀiÁðzÀÄ ¤Ãr¯Áè JAzÀÄ w½¹zÀÝjAzÀ F ¢£À vÀqÀªÁV §AzÀÄ F
¦AiÀiÁð¢AiÀÄ£ÀÄß ¤ÃrgÀÄvÉÛãÉ."
12. Immediately thereafter, the jurisdiction police have
conducted panchanama and mahazar was drawn. Taking into
consideration the reason assigned by the claimants insofar as
delay in lodging the complaint, I am of the considered view that
the Tribunal ought to have appreciated Exhibits P4 and P5 in the
right perspective and should have arrived at the conclusion that
the claimants have sustained injuries on account of road traffic
accident. It is well settled principle of law that delay in lodging
the complaint is not fatal to filing of claim petition seeking
compensation under Motor Vehicles Act, 1988. However, it is
the duty of the Tribunal to appreciate the MLC records taking
into consideration, date, time and the treatment given to the
victims, inter alia, hospital shall refer the case to the Police as
Medico Legal Case. In the instant case, no such steps have been
taken by the hospital authorities to inform the jurisdictional
Police with regard to the occurrence of the accident. I have also
noticed from the Exhibit-P1(a)-complaint, wherein the claimants
were under the impression that the complaint had already been
registered before the jurisdictional police. It is also forthcoming
from wound certificates that the claimant-Sunil has sustained
grievous injury viz. traumatic quadripareisis due to cervical cord
injury. The MLC record which has been marked as Exhibit C1
and C2 would also substantiate the fact that the claimants
sustained injuries on account of accident on 05th September,
2012 and the same is issued by the Primary Health Centre,
Hosakere, Gubbi Taluk. In that view of the matter, the Tribunal
ought to have exercised its discretion taking into consideration
the beneficial legislation of Motor Vehicles Act, 1988, as the
claimants suffered injury on account of road traffic accident. In
this regard, it is useful to refer to the law declared by the
Hon'ble Apex Court in the case of RAVI (supra), wherein at
paragraphs 17 to 21 of the judgment, it is observed thus:
"17. It is well-settled that delay in lodging FIR
cannot be a ground to doubt the claimant's case. Knowing
the Indian conditions as they are, we cannot expect a
common man to first rush to the Police Station
immediately after an accident. Human nature and family
responsibilities occupy the mind of kith and kin to such an
extent that they give more importance to get the victim
treated rather than to rush to the Police Station. Under
such circumstances, they are not expected to act
mechanically with promptitude in lodging the FIR with the
Police. Delay in lodging the FIR thus, cannot be the
ground to deny justice to the victim.
18. In cases of delay, the courts are required to
examine the evidence with a closer scrutiny and in doing
so; the contents of the FIR should also be scrutinized
more carefully. If court finds that there is no indication of
fabrication or it has not been concocted or engineered to
implicate innocent persons then, even if there is a delay
in lodging the FIR, the claim case cannot be dismissed
merely on that ground. The purpose of lodging the FIR in
such type of cases is primarily to intimate the police to
initiate investigation of criminal offences.
19. Lodging of FIR certainly proves factum of
accident so that the victim is able to lodge a case for
compensation but delay in doing so cannot be the main
ground for rejecting the claim petition. In other words,
although lodging of FIR is vital in deciding motor accident
claim cases, delay in lodging the same should not be
treated as fatal for such proceedings, if claimant has been
able to demonstrate satisfactory and cogent reasons for
it. There could be variety of reasons in genuine cases for
delayed lodgment of FIR. Unless kith and kin of the victim
are able to regain a certain level of tranquility of mind
and are composed to lodge it, even if, there is delay, the
same deserves to be condoned. In such circumstances,
the authenticity of the FIR assumes much more
significance than delay in lodging thereof supported by
cogent reasons.
20. In the case in hand, the Claims Tribunal as well
as the High Court, committed grave error in not
appreciating the mental agony through which Suresh was
passing, whose son was severely injured. In the light of
the aforesaid discussion, we are of the considered opinion
that the MACT as well as High Court committed error in
coming to the conclusion that lodging the FIR belatedly
would result in dismissal of the claim petition.
21. Now, the question comes for consideration as
to how much amount can be awarded to the Appellant.
Record shows that victim is now aged about 16 years but
is still prosecuting his studies in class V only. Apparently,
on account of nature of injuries sustained by him, he was
unable to prosecute his studies in right earnest and
lagged behind in the same. Medical Board Certificate
issued by Government R.D.B.P. Jaipuria Hospital, Jaipur
dated 17.12.2004 shows that he has suffered the
following injuries and was admitted as many as on four
occasions in the hospital, intermittently :
"Diagnosis: Abdominal Injury with fractured
Pelvis stricture urethra with ruptured urethra
couplet transacted urethra (Case No. 020762) IInd
Adm. 10.11.2001 to 12.11.2001, IIIrd Adm.
27.11.01 to 12.12.01; IVth Adm. 28.12.01 to
1.1.2002.""
13. In the case of VIMALA DEVI v. NATONAL INSURANCE
COMPANY LIMITED reported in (2019)2 SCC 186 at paragraph
15 of the judgment, the Hon'ble Apex Court has observed as
follows:
"15. At the outset, we may reiterate as
has been consistently said by this Court in a series
of cases that the Act is a beneficial piece of legislation
enacted to give solace to the victims of the motor
accident who suffer bodily injury or die untimely. The Act
is designed in a manner, which relieves the victims from
ensuring strict compliance provided in law, which are
otherwise applicable to the suits and other proceedings
while prosecuting the claim petition filed under the Act for
claiming compensation for the loss sustained by them in
the accident."
14. In relation to provisions contained under the
Employees State Insurance Act, being a beneficial legislation,
Hon'ble Apex Court in the case of BOMBAY ANAND BHAVAN
RESTAURANT v. DEPUTY DIRECTOR, EMPLOYEES STATE
INSURANCE CORPORATION reported in (2009)9 SCC 61 at
paragraph 20 of the judgment, held as follows:
"20. The Employees State Insurance Act is a
beneficial legislation. The main purpose of the enactment
as the Preamble suggests, is to provide for certain
benefits to employees of a factory in case of sickness,
maternity and employment injury and to make provision
for certain other matters in relation thereto. The
Employees State Insurance Act is a social security
legislation and the cannons of interpreting a social
legislation is different from the cannons of interpretation
of taxation law. The courts must not countenance any
subterfuge which would defeat the provisions of social
legislation and the courts must even, if necessary, strain
the language of the Act in order to achieve the purpose
which the legislature had in placing this legislation on the
statute book. The Act, therefore, must receive a liberal
construction so as to promote its objects."
15. Hon'ble Apex Court in the case of BHAIYA PUNJALAL
BHAGAWANDDIN v. DAVE BHAGAWATPRASAD PRABHUPRASAD
reported in 1963 AIR 120; and in the case of SHRI PRAKASH
CHAND AGARWAL AND OTHERS v. MESSRS. HINDUSTAN STEEL
LTD. reported in (1970)2 SCC 806 has held that the
discretionary power conferred upon the courts to enforce the
rights of victims and their dependents and the intention of the
Legislature is to be considered to ensure that substantial justice
is not trumped by mere technicalities. In the case of BALAVANT
SINGH (DEAD) V. JATDISH (2010)8 SCC 685 at paragraph 25
and 26 of the judgment held as follows:
"25. We may state that even if the term `sufficient
cause' has to receive liberal construction, it must squarely
fall within the concept of reasonable time and proper
conduct of the concerned party. The purpose of
introducing liberal construction normally is to introduce
the concept of `reasonableness' as it is understood in its
general connotation.
26. The law of limitation is a substantive law and
has definite consequences on the right and obligation of a
party to arise. These principles should be adhered to and
applied appropriately depending on the facts and
circumstances of a given case. Once a valuable right, as
accrued in favour of one party as a result of the failure of
the other party to explain the delay by showing sufficient
cause and its own conduct, it will be unreasonable to take
away that right on the mere asking of the applicant,
particularly when the delay is directly a result of
negligence, default or inaction of that party. Justice must
be done to both parties equally. Then alone the ends of
justice can be achieved. If a party has been thoroughly
negligent in implementing its rights and remedies, it will
be equally unfair to deprive the other party of a valuable
right that has accrued to it in law as a result of his acting
vigilantly."
16. In the case of MANIBEN DEVARAJ SHAH v. MUNICIPAL
CORPORATION OF BRIHANMUMBAI (2012)5 SCC 157, at
paragraph 23 and 24 of the judgment, it is observed thus:
"23. What needs to be emphasised is that even
though a liberal and justice oriented approach is required
to be adopted in the exercise of power under Section 5 of
the Limitation Act and other similar statutes, the Courts
can neither become oblivious of the fact that the
successful litigant has acquired certain rights on the basis
of the judgment under challenge and a lot of time is
consumed at various stages of litigation apart from the
cost.
24. What colour the expression "sufficient cause"
would get in the factual matrix of a given case would
largely depend on bona fide nature of the explanation. If
the Court finds that there has been no negligence on the
part of the applicant and the cause shown for the delay
does not lack bona fides, then it may condone the delay.
If, on the other hand, the explanation given by the
applicant is found to be concocted or he is thoroughly
negligent in prosecuting his cause, then it would be a
legitimate exercise of discretion not to condone the
delay."
17. Undoubtedly, in the present case the sole ground for
declining relief to the claimant by the Tribunal is the delay in
lodging the complaint. It is not in dispute that the claimants
sustained grievous injuries on account of road traffic accident on
05th September, 2012. Medical records produced by the
claimants would substantiate the fact regarding occurrence of
accident and injuries sustained by them. The claimants have
also shown sufficient cause for delay in lodging the complaint to
the jurisdictional police as per Exhibit P1(a). It is not
forthcoming from the hospital records with regard to forwarding
intimation as Medico Legal case to the jurisdictional police by the
hospital authorities. The Tribunal has sought for MLC Register
extract from the Hospital to discern the truth as per Exhibits C1
and C2. Undisputably, no evidence has been adduced by the
respondents to counter the occurrence of the accident as well as
the injuries sustained by the claimants. In that view of the
matter, I am of the considered view that the finding recorded by
the Tribunal is contrary to records and same requires
interference in this appeal. It is also well-established principle
that, the Tribunal, while considering the claim petitions should
not make hyper-technical or trivial approach towards the manner
in which the accident occurred so also the involvement of
vehicles in question, unless the claimants fail to prove the same
with cogent material on record. It is also well-established
principle that, the claimants were to establish their case on the
basis of preponderance of probability and the Tribunal cannot
expect that the standard of proof beyond reasonable doubt could
not have been applied. In this regard, I am, supported by the
law declared by the Hon'ble Apex Court in the case of SUNITA
AND OTHERS v. RAJASTHAN STATE ROAD TRANSPORT
CORPORATION AND ANOTHER reported in AIR 2019 SC 994. At
paragraphs 20 to 24 of the judgment, the Hon'ble Supreme
Court observed thus:
"20. We have no hesitation in observing that such a
hyper- technical and trivial approach of the High Court
cannot be sustained in a case for compensation under the
Act, in connection with a motor vehicle accident resulting
in the death of a family member. Recently, in Mangla
Ram Vs. Oriental Insurance Company Limited and Ors.,
(to which one of us, Khanwilkar, J. was a party), this
Court has restated the position as to the approach to be
adopted in accident claim cases. In that case, the Court
was dealing with a case of an accident between a
motorcycle and a jeep, where the Tribunal had relied
upon the FIR and charge- sheet, as well as the
accompanying statements of the complainant and
witnesses, to opine that the police records confirmed the
occurrence of an accident and also the identity of the
offending jeep but the High Court had overturned that
finding inter alia on the ground that the oral evidence
supporting such a finding had been discarded by the
Tribunal itself and that reliance solely on the document
forming part of the police record was insufficient to arrive
at such a finding. Disapproving that approach, this Court,
after adverting to multitude of cases under the Act, noted
as follows:
"22. The question is: Whether this approach of the
High Court can be sustained in law? While dealing
with a similar situation, this Court in Bimla Devi
noted the defence of the driver and conductor of
the bus which inter alia was to cast a doubt on the
police record indicating that the person standing at
the rear side of the bus, suffered head injury when
the bus was being reversed without blowing any
horn. This Court observed that while dealing with
the claim petition in terms of Section 166 of the
Motor Vehicles Act, 1988, the Tribunal stricto sensu
is not bound by the pleadings of the parties, its
function is to determine the amount of fair
compensation. In paras 11-15, the Court observed
thus:
"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-à-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
the constable had 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 Supra
at footnote 2 absolutely no reason to falsely implicate
Respondents 2 and 3. The 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 evidence 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 the burden of proof in
terms of the provisions of Section 106 of the Evidence
Act, 1872 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 Respondents
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 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."
The Court restated the legal position that the claimants
were merely to establish their case on the touchstone of
preponderance of probability and standard of proof
beyond reasonable doubt cannot be applied by the
Tribunal while dealing with the motor accident cases.
Even in that case, the view taken by the High Court to
reverse similar findings, recorded by the Tribunal was set
aside.
23. Following the enunciation in Bimla Devi case,
this Court in Parmeshwari v. Amir Chand7 noted
that when filing of the complaint was not disputed,
the decision of the Tribunal ought not to have been
reversed by the High Court on the ground that
nobody came from the office of the SSP to prove
the complaint. The Court appreciated 7 (2011) 11
SCC 635 the testimony of the eyewitnesses in
paras 12 & 13 and observed thus: (Parmeshwari
case, SCC p. 638).
"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.
13. The other so-called reason in the High Court's
order was that as the claim petition was filed after
four months of the accident, the same is "a device to
grab money from the insurance company". This
finding in the absence of any material is certainly
perverse. The High Court appears to be not
cognizant of the principle that in a road accident
claim, the strict principles of proof in a criminal case
are not attracted. ..."
24. It will be useful to advert to the dictum in N.K.V.
Bros. (P) Ltd. v. M. Karumai Ammal, wherein it was
contended by the vehicle owner that the criminal case in
relation to the accident had ended in acquittal and for
which reason the claim under the Motor Vehicles Act
ought to be rejected. This Court negative the said
argument by observing that the nature of proof required
to establish culpable rashness, punishable under IPC, is
more stringent than negligence sufficient under the law of
tort to create liability. The observation made in para 3 of
the judgment would throw some light as to what should
be the approach of the Tribunal in motor accident cases.
The same reads thus: (SCC pp. 458-59)
"3. Road accidents are one of the top killers in
our country, specially when truck and bus drivers
operate nocturnally. This proverbial recklessness
often persuades the courts, as has been observed
by us earlier in other cases, to draw an initial
presumption in several cases based on the doctrine
of res ipsa loquitur. Accidents Tribunals must take
special care to see that innocent victims do not
suffer and drivers and owners do not escape
liability merely because of some doubt here or
some obscurity there. Save in plain cases,
culpability must be inferred from the circumstances
where it is fairly reasonable. The court should not
succumb to niceties, technicalities and mystic
maybes. We are emphasising this aspect because
we are often distressed by transport operators
getting away with it thanks to judicial laxity,
despite the fact that they do not exercise sufficient
disciplinary control over the drivers in the matter of
careful driving. The heavy economic impact of
culpable driving of public transport must bring
owner and driver to their responsibility to their
neighbour. Indeed, the State must seriously
consider no-fault liability by legislation. A second
aspect which pains us is the inadequacy of the
compensation or undue parsimony practised by
tribunals. We must remember that judicial tribunals
are State organs and Article 41 of the Constitution
lays the jurisprudential foundation for State relief
against accidental disablement of citizens. There is
no justification for niggardliness in compensation. A
third factor which is harrowing is the enormous
delay in disposal of accident cases resulting in
compensation, even if awarded, being postponed
by several years. The States must appoint
sufficient number of tribunals and the High Courts
should insist upon quick disposals so that the
trauma and tragedy already sustained may not be
magnified by the injustice of delayed justice. Many
States are unjustly indifferent in this regard."
25. In Dulcina Fernandes, this Court examined
similar situation where the evidence of claimant's
eyewitness was discarded by the Tribunal and that
the respondent in that case was acquitted in the
criminal case concerning the accident. This Court,
however, opined that it cannot be overlooked that
upon investigation of the case registered against
the respondent, prima facie, materials showing
negligence were found to put him on trial. 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 noted in Bimla Devi. In paras 8 & 9 of
the reported decision, the dictum in United India
Insurance Co. Ltd. v. Shila Datta, has been
adverted to as under: (Dulcina Fernandes case,
SCC p. 650)
"8. In United India Insurance Co. Ltd. v. Shila
Datta while considering the nature of a claim
petition under the Motor Vehicles Act, 1988 a
three-Judge Bench of this Court has culled out
certain propositions of which Propositions (ii), (v)
and (vi) would be relevant to the facts of the
present case and, therefore, may be extracted
hereinbelow:
10. (ii) The rules of the 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 motu initiated by the
Tribunal.
***
(v) Though the Tribunal adjudicates on a claim and
determines the compensation, it does not do so as in an
adversarial litigation. ...
(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 assist it in holding the enquiry.'
9. The following further observation available in para 10
of the Report would require specific note: (Shila Datta
case, SCC p. 519)
'10. ... 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.'"
In para 10 of Dulcina Fernandes, the Court opined that
non-examination of witness per se cannot be treated as
fatal to the claim set up before the Tribunal. In other
words, the approach of the Tribunal should be holistic
analysis of the entire pleadings and evidence by
applying the principles of preponderance of probability."
It is thus well settled 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.
21. In the present case, we find that the Tribunal had
followed a just approach in the matter of appreciation of
the evidence/materials on record. Whereas, the High
Court adopted a strict interpretation of the evidence on
the touchstone of proof beyond reasonable doubt to
record an adverse finding against the appellants and to
reverse the well considered judgment of the Tribunal in a
cryptic manner.
22. Reverting to the factual matrix, the actual occurrence
of the accident between the motorcycle driven by Sitaram
bearing registration number RJ 25 SA 6923 coming from
one side and a bus belonging to respondent No.1 (the
Rajasthan State Road Transport Corporation) bearing
registration number RJ-26/P.A. 0042 coming from the
opposite direction, is duly proved. The Tribunal has relied
upon the uncontroverted evidence of witnesses A.D.1 and
A.D. 3, and the documents presented by them, especially
FIR No. 247/2011 (Exh. 1) and charge-sheet (Exh.2)
against one Banwari Lal Bairwa (respondent No.2),
charging him with offences under Sections 279, 337 and
304A of the IPC and Sections 134/187 of the Act, to
establish that on 28.10.2011 at around 7 A.M., Sitaram,
along with pillion rider Rajulal Khateek, was riding on a
motorcycle bearing number RJ 25 SA 6923 from village
Bapuee to Chaut ka Barwad for Daug, to his sister, when,
near Mahapura tri- section, bus number RJ-26/P.A. 0042
belonging to respondent No.1 (the Rajasthan State Road
Transport Corporation) coming from the opposite
direction hit the motorcycle from the front, resulting in
the death of Sitaram.
23. The Tribunal had justly accepted the appellants'
contention that the respondents did not challenge the
propriety of the said FIR No. 247/2011 (Exh. 1) and
charge- sheet (Exh. 2) before any authority. The only
defence raised by the respondents to this plea was that
the said FIR No. 247/2011 was based on wrong facts and
was filed in connivance between the
appellants/complainants and the police, against which the
respondents complained to the in- charge of the police
station and the District Superintendent of Police but to no
avail. Apart from this bald assertion, no evidence was
produced by the respondents before the Tribunal to prove
this point. The filing of the FIR was followed by the filing
of the charge-sheet against respondent No.2 for offences
under Sections 279, 337 and 304A of the IPC and
Sections 134/187 of the Act, which, again, reinforces the
allegations in the said FIR insofar as the occurrence of the
accident was concerned and the role of respondent No.2
in causing such accident. Be that as it may, the High
Court has not even made a mention, let alone record a
finding, of any impropriety against FIR 247/2011 (Exh. 1)
or charge-sheet (Exh. 2) or the conclusion reached by the
Tribunal in that regard. Yet, the FIR and the Charge-
sheet has been found to be deficient by the High Court.
24. Before the Tribunal, respondent No.1 has neither
denied that respondent No.2 was in its employment at the
time of the accident nor has it denied that respondent
No.2 was driving the offending bus no. RJ-26/P.A. 0042
at the time of the accident. The Tribunal has also referred
to the Post-mortem report (Exh.4) which establishes that
Sitaram died due to shock arising from various fractures
on his body, which, undoubtedly, were rendered due to
his accident with the offending bus. All of the aforesaid
evidence remained uncontroverted. While the Tribunal
has accepted these depositions and the evidence
presented in that regard, the High Court has, surprisingly,
not even referred to it or even the numerous documents
presented by the said witnesses as evidence, apart from a
passing reference to FIR 247/2011 (Exh.1)."
18. It is also relevant to cite the judgment of the Division
Bench of this Court in the case of PRIBHIDAS v. B.N. RENUKA
reported in LAWS(KAR) 1982 6 18 wherein at paragraphs 10 to
12 of the judgment, this Court observed thus:
"10. It is not in dispute that the driver of the car
bearing Registration No.MYQ 6769, which caused the
accident, was charge-sheeted for rash and negligent
driving and that he pleaded guilty before the Magistrate
and that he was sentenced.
11. It is no doubt true that in the written
statement there is an explanation offered by the owner
that the driver was coerced by the police to confess
before the Court. But the driver discreetly desisted from
entering the witness-box and offering himself for cross
examination. He did not offer any explanation for his
confession.
12. This Court has ruled in the case, Vinobabai v.
KSRTC (1979) 1 Kant LJ 257 that when the driver admits
his guilt before the Criminal Court and is convicted, it
would establish prima facie that he was guilty of rash and
negligent driving and we have pointed out above that the
driver did not care to enter the witness-box and offer any
explanation. The admission, therefore, becomes decision
on the facts of the present case that the accident was the
result of rash and negligent driving of the car in question
by its driver. That is the conclusion arrived at by the
Tribunal and we affirm it."
19. The principle laid down by the Division Bench is to be
made applicable to the instant case. Further, it is necessary to
observe that it is also not disputed by the Insurance Company
that the rider of the offending vehicle was charge-sheeted and
pleaded guilty before the competent criminal court and the said
fact would establish that the rider of the offending vehicle was
guilty of rash and negligent driving and the said aspect of the
matter could not have been brushed aside by the Tribunal while
answering issue No.1. That apart, Motor Vehicles Act being a
beneficial legislation, the victims of the road traffic accidents are
to be awarded just compensation.
20. In the light of the discussion made above, in my
considered opinion, the Tribunal has committed an error in
dismissing claim petitions on the ground of delay in lodging the
complaint which, admittedly, is not a sole basis or fact to
disallow the claim petitions without appreciating the material on
record in the right perspective taking into consideration the law
declared by the this Court as well as Apex Court referred to
above and therefore, the finding recorded by the Tribunal on
issue No.1 in both the cases is required to be set aside and the
claimants are entitled for just compensation as per Section 166
of the Motor Vehicles Act, 1988.
21. In the light of the discussion made above, the
impugned judgment and award passed by the Tribunal is set
aside and claim petitions are to be remanded to the Tribunal for
fresh consideration in accordance with law for awarding just
compensation to the claimants. Hence, the following:
ORDER
1. Appeals are allowed;
2. Judgment and award dated 28th October, 2014
passed MVCs No.142 and 141 of 2013 on the
file of the Principal Sr. Civil Judge and Motor
Accident Claims Tribunal-X Tumkur, is set aside
remanding the claim petitions to award
compensation in accordance with law;
3. In view of the fact that the parties are
represented before this Court, parties are
directed to appear before the Tribunal on 06th
December, 2021 without awaiting for fresh
notice in this regard;
4. No order as to costs.
Sd/-
JUDGE
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