Madhya Pradesh High Court
Smt.Kamlesh vs Lakhan Baghel on 5 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 MA. No. 379 of 2015
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 5th OF FEBRUARY, 2025
MISC. APPEAL No. 379 of 2015
SMT. KAMLESH AND OTHERS
Versus
LAKHAN BAGHEL AND OTHERS
Appearance:
Shri Ramesh Prasad Gupta - Advocate for appellants.
Shri Shrinivas Gajendragadkar- Advocate for respondent No.3, through video
conferencing.
ORDER
This appeal, under Section 173 of Motor Vehicles Act, 1988, has been filed
against Award dated 28.01.2014 passed by IV Additional Motor Accident Claims
Tribunal, Gwalior (M.P.) in MACC No.157/2013 by which claim petition filed by
the claimants has been rejected on the ground that claimants have failed to prove
that accident was caused by offending motorcycle bearing Registration No.MP07-
MJ-8674.
2. Challenging the dismissal of claim petition, it is submitted by counsel for
appellants that FIR was lodged after three months and the Claims Tribunal has
also disbelieved the evidence of Ramendra Singh Kushwah (AW-2) on the ground
that he had reached the spot within a period of two minutes from the time of
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accident. It is submitted that so far as delay in lodging FIR is concerned, the same
cannot be a ground to reject the claim petition. Furthermore, Claims Tribunal has
wrongly disbelieved the evidence of Ramendra Singh Kushwah (AW-2). It is
submitted that by way of abundant caution even though Claims Tribunal has
assessed the compensation but the amount so assessed by the Claims Tribunal is
on a lower side.
3. Per contra, counsel for respondent No.3 has supported the findings
recorded by the Claims Tribunal.
4. Heard learned counsel for the parties.
5. According to the case of claimants, deceased Sunil Shrivastava along with
his friend Ramendra Singh Kushwah went to Thatipur square for purchasing
vegetables. At about 08 pm, while he was crossing the road, in front of office of
CSP, Thatipur, driver of motorcycle bearing Registration No.MP07-MJ-8674
dashed Sunil Shrivastava by driving the motorcycle in a rash and negligent
manner, as a result Sunil Shrivastava fell on the ground and sustained injuries. He
was taken to J.A. Hospital, Gwalior, by 108 Ambulance where he was treated and
after normal dressing he was discharged. It was also informed by doctors that
bleeding from ear would automatically stop. After the deceased was brought to
his house, his condition did not improve and accordingly he was taken to Morar
Government Hospital where they avoided to treat him on the ground that because
he was treated in J.A. Hospital, therefore, parents of injured should take him to
the Neurological Department of J.A. Hospital. Accordingly, on 30.04.2012,
deceased was admitted in Neurology Ward of J.A. Hospital where X-ray and C.T.
Scan of head and X-ray of chest were done. When deceased did not get any relief,
then operation was performed. However, deceased died on 16.05.2012 during
treatment.
6. It is submitted by counsel for appellants that claim petition has been
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dismissed primarily on the ground that the FIR was lodged belatedly by three
months. In order to disbelieve Ramendra Singh Kushwah (AW-2), Claims
Tribunal has given an undue importance to his admission in cross-examination
that he reached the spot after two minutes. It is submitted that suggestion given to
this witness that he had not seen the incident was specifically denied by him. In
fact stating that he reached the spot after two minutes merely means that he
reached on the spot but it does not mean that he did not see the incident. A person
may see the incident from a distance also. Furthermore, he has stated that the
offending vehicle had stayed for two minutes and thereafter the owner of vehicle
ran away along with his vehicle. This witness has further stated that he informed
family members of deceased on telephone and also went to Madhav Dispensary
by 108 Ambulance. He also gave information to Police Station Thathipur. It is
submitted by counsel for appellants that Crime Details Form (Ex.P-3) was
prepared on the instructions of Ramendra Singh Kushwah (AW-2) which clearly
shows that Ramendra Singh Kushwah (AW-2) had witnessed the incident. Merely
because "unknown vehicle" is mentioned in Crime Details Form (Ex.P-3), it
would not mean that Ramendra Singh Kushwah (AW-2) has not seen the incident
because no suggestion was given to Ramendra Singh Kushwah (AW-2) as to how
unknown vehicle is mentioned in Crime Details Form (Ex.P-3). It is submitted
that unless and until attention of witness is drawn towards his previous statement
as required under Section 145 if the Evidence Act, the aforesaid discrepancy in
the Crime Details Form (Ex.P-3) cannot be considered against appellants.
7. Per contra, appeal is vehemently opposed by counsel for Insurance
Company.
8. Heard learned counsel for parties.
9. It is well established principle of law that claim petitions are to be decided
on the basis of evidence led in the claim petition and mere delay in lodging FIR
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cannot be a ground to dismiss the claim petition.
The Supreme Court in the case of Sunita and others Vs. Rajasthan State
Road Transport Corporation and others reported in (2020) 13 SCC 486 has
held as under:
"21. We have no hesitation in observing that such a hypertechnical 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 v. Oriental Insurance Co. Ltd. [Mangla Ram v. Oriental Insurance
Co. Ltd., (2018) 5 SCC 656 : (2018) 3 SCC (Civ) 335 : (2018) 2 SCC
(Cri) 819] (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 [Pratap
Singh v. Mangla Ram, 2017 SCC OnLine Raj 3765] 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: (Mangla Ram
case [Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 :
(2018) 3 SCC (Civ) 335 : (2018) 2 SCC (Cri) 819] , SCC pp. 667-71,
paras 22-25)
"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 [Bimla Devi v. Himachal RTC, (2009)
13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri)
1101] 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
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pleadings of the parties, its function is to determine the amount
of fair compensation. In paras 11-15, the Court observed thus:
(SCC pp. 533-34)
'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
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
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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.'
(emphasis supplied)
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 [Bimla
Devi v. Himachal RTC, (2009) 13 SCC 530 : (2009) 5 SCC
(Civ) 189 : (2010) 1 SCC (Cri) 1101] , this Court
in Parmeshwari v. Amir Chand [Parmeshwari v. Amir Chand,
(2011) 11 SCC 635 : (2011) 4 SCC (Civ) 828 : (2011) 3 SCC
(Cri) 605] 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 [Amir Chand v. Parmeshwari, 2009
SCC OnLine P&H 9302] on the ground that nobody came from
the office of the SSP to prove the complaint. The Court
appreciated the testimony of the eyewitnesses in paras 12 & 13
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and observed thus: (Parmeshwari case [Parmeshwari v. Amir
Chand, (2011) 11 SCC 635 : (2011) 4 SCC (Civ) 828 : (2011) 3
SCC (Cri) 605] , SCC p. 638)
'12. The other ground on which the High Court dismissed
[Amir Chand v. Parmeshwari, 2009 SCC OnLine P&H
9302] 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 [N.K.V. Bros. (P) Ltd. v. M. Karumai
Ammal, (1980) 3 SCC 457 : 1980 SCC (Cri) 774] , 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 negatived 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
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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 [Dulcina Fernandes v. Joaquim
Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 :
(2014) 1 SCC (Cri) 13] , 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,
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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 [Bimla Devi v. Himachal RTC, (2009) 13 SCC
530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] . In
paras 8 & 9 of the reported decision, the dictum in United India
Insurance Co. Ltd. v. Shila Datta [United India Insurance Co.
Ltd. v. Shila Datta, (2011) 10 SCC 509 : (2012) 3 SCC (Civ) 798
: (2012) 1 SCC (Cri) 328] , has been adverted to as under:
(Dulcina Fernandes case [Dulcina Fernandes v. Joaquim Xavier
Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1
SCC (Cri) 13] , SCC p. 650)
'8. In United India Insurance Co. Ltd. v. Shila
Datta [United India Insurance Co. Ltd. v. Shila Datta,
(2011) 10 SCC 509 : (2012) 3 SCC (Civ) 798 : (2012) 1
SCC (Cri) 328] 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: (SCC p. 518, para 10)
"10. ... (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 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."
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9. The following further observation available in para 10
of the Report would require specific note: (Shila Datta
case [United India Insurance Co. Ltd. v. Shila Datta,
(2011) 10 SCC 509 : (2012) 3 SCC (Civ) 798 : (2012) 1
SCC (Cri) 328] , 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 [Dulcina Fernandes v. Joaquim
Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 :
(2014) 1 SCC (Cri) 13], 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."
22. 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."
10. Furthermore, in the present case, the Marg intimation was given by Dr.
Harish, J.A. Hospital, Gwalior (M.P.) with regard to death of Sunil. The Police
conducted Marg Enquiry and only thereafter FIR was lodged. If the police was
lethargic in conducting marg enquiry, the same cannot be taken as an adverse
circumstance against the appellants. The insurance company did not examine
enquiry officer to explain as to why enquiry was not conducted expeditiously.
Once an explanation has not been sought from the Enquiry Officer with regard to
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delay in recording of police statements, then evidence of witnesses cannot be
discarded only on that ground.
11. So far as the evidence of Ramendra Singh Kushwah (AW-2) is concerned,
since Crime Details Form (Spot Map- Ex.P/3) was prepared on his instructions,
therefore, it is clear that even the police has treated him as an eyewitness.
Although in the Crime Details Form (Ex.P-3), number of vehicle is not mentioned
but that anomaly was required to be clarified by the Investigating Officer.
Furthermore, specific question should have been put to Ramendra Singh
Kushwah (AW-2) as to why the number of offending vehicle was not mentioned
in the crime details form. Until and unless the attention of this witness is drawn to
his previous statement as required under Section 145 of Evidence Act, non-
mentioning of number of offending vehicle in the Crime Details Form cannot be
considered against the interest of appellants.
12. Under these circumstances, this Court is of considered opinion that the
Claims Tribunal has committed material illegality by holding that appellants have
failed to prove the accident, caused by offending vehicle bearing Registration No.
MP07-MJ-8674. Accordingly, it is held that on 29.04.2012 at about 08 pm
deceased Sunil Shrivastava was dashed by Lakhan Baghel by driving motorcycle
bearing Registration No.MP07-MJ-8674 in a rash and negligent manner, thereby
causing grievous injuries to him and ultimately he succumbed to those injuries.
13. The next question for consideration is with regard to quantum of
compensation.
14. Although the Claims Tribunal has calculated the quantum of compensation
but the same is on a lower side. The Claims Tribunal has taken the monthly
income of the deceased as Rs.4,000/- per month by holding that the appellants
have failed to prove the income of the deceased by leading cogent evidence. Once
appellants have failed to prove the income of the deceased, then the notification
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issued under the Minimum Wages Act can be considered. The accident took place
on 29.04.2012 and as per the notification issued under the Minimum Wages Act,
the monthly income of an unskilled labourer was 4,770/-. Since the deceased was
bachelor, therefore, only appellant No.1 shall be entitled to compensation and
personal expenses of the deceased are to be taken as 50%. As the deceased was 30
years' of age, therefore, the multiplier of 17 would apply. So far as as appellant
No.2 is concerned, he is entitled to filial consortium of Rs.40,000/-.
15. Accordingly, appellant No.1 is held entitled for following compensation
amount:
S.No. Head Amount payable to Appellant
(In Rupees)
1. Monthly income of deceased 4,770
2. Future Prospects @ 40% 1,908
3. Total monthly income 6,678
4. Personal Expenses @ 1/2 3,339
5. Yearly loss of income 40,068
6. Multiplier of 17 6,81,156
7. Filial consortium 40,000/- X 2 80,000
8. Loss of Estate 15,000
9. Funeral Expenses 15,000
10. Total Compensation 7,91,156
16. This appeal was filed belatedly with the delay of 342 days. Therefore, the
appellants would not be entitled to interest for the aforesaid period. Accordingly,
the award dated 28.01.2014 passed by IV Additional Motor Accident Claims
Tribunal, Gwalior (M.P.) in MACC No.157/2013 is hereby set aside. Appellant
No.1 is held to be entitled to compensation of Rs.7,91,156/- (Rupees Seven Lacs
Ninety One Thousand One Hundred Fifty Six Only) with interest at the rate of
6% per annum, payable from the date of claim petition till its actual realization. It
is once again clarified that appellant No.1 would not be entitled to interest for a
period of 342 days.
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50% of the aforesaid compensation amount shall be kept in an FDR and the
remaining 50% shall be disbursed to appellant No.1 out of which filial consortium
of Rs.40,000/- shall be released to appellant No.2. The FDR shall be prepared for
a period of five years.
17. With aforesaid observation, the appeal is allowed.
(G.S. Ahluwalia)
Judge
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