Madhya Pradesh High Court
Smt. Rashmi Maravi vs Sanjay Kumar Pandey on 17 May, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISCALLNEOUS APPEAL No.7546 of 2023
SMT. RASHMI MARAVI AND OTHERS
Versus
SANJAY KUMAR PANDEY AND OTHERS
......................................................................................................
Appearance:-
Shri Durgesh Kumar Singrore - Advocate for the appellants.
None on behalf of respondent No. 1 and 2.
Ms. Asgari Khan - Advocate for the respondent No.3.
.................................................................................
RESERVED ON : 07.04.2025
PRONOUNCED ON : 17.05.2025
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This appeal having been heard and reserved for judgment,
coming on for pronouncement on this day, the Court passed the
following:-
ORDER
This appeal has been filed by the appellants/ claimants under
Section 173 (1) of the Motor Vehicles Act, 1988 against the award
dated 17.10.2023 passed in Claim Case No.403 of 2020 (Smt. Rashmi
Maravi and Others Vs. Sanjay Kumar Pandey and Others) by
Member, M.A.C.T Mandla, District-Mandla whereby
appellants/claimants petition under Section 166 of The Motor
Vehicles Act, 1988, has been dismissed.
2. Brief facts relevant for disposal of present appeal are that
appellants/claimants filed a claim petition under Section 166 of
Motor Vehicle Act on the ground that on 16.05.2020, deceased had
come to Jabalpur for official work and thereafter, he was returning to
his house Mandla on motorcycle. As soon as, deceased reached near
main road, Village Nagai, Near Hanuman temple at about 6:30 in the
evening, then, at that time, truck bearing registration No.MP-19-GA-
0884 (hereinafter referred to as "offending vehicle") coming from
Kundam side, which was being driven rashly and negligently by
respondent No.1, hit deceased's motorcycle. Later-on, deceased
succumbed to injuries sustained as above.
3. Learned counsel for the appellants submits that learned Tribunal
has wrongly dismissed appellants' claim petition on the ground that
FIR is delayed. It is also urged that merg (Ex.P/4) was registered on
21.05.2020. Thereafter, merg enquiry was conducted and on the basis
of merg enquiry, FIR (Ex.P/2) was registered and therein number of
vehicle has been mentioned. It is also urged that at relevant point of
time, there was lock-down on account of COVID. Therefore, means
of conveyance were not available. It is also urged that
respondent/Insurance Company has not examined Investigating
Officer to prove that offending vehicle was not involved in the
incident. With respect to aforesaid submissions, learned counsel for
the appellants has relied upon The Oriental Company Ltd. Vs.
Rooplal Uike and Others (MA.No.1872 of 2017 decided on
25.10.2023). Further, it is also urged that unladen weight of
offending vehicle is 7,000 kgs and driver of offending vehicle was
having licence to drive LMV. Hence, in view of law laid down in
Mukund Dewangan Vs. Oriental Insurance Company Limited
(2016) 4 SCC 298 and Ms. Bajaj Alliance General Insurance Co.
Ltd Vs. Rambha Devi & Ors, (2025) 3 SCC 95, it cannot be said that
at the time of accident, offending vehicle was being driven in
violation of terms and conditions of Insurance policy. On above
grounds, it is urged that impugned award passed by the Tribunal be
set aside and compensation be awarded to appellants.
4. Learned counsel for the respondent No.3-Insurance Company
submits that initially, merg information was lodged against unknown
vehicle. FIR is a manipulated document. Appellants were required to
prove that accident has occurred on account of rash and negligent
driving on the part of driver of offending vehicle. It is also urged that
Mir Roshan Tahir Ali was eye-witness to the incident but he has not
been examined. Instead, appellants have examined one Dhaneshwar
Jhariya and his name is not mentioned in witness list attached to the
charge-sheet. After referring to testimony of Dhaneshwar Jhariya, it
is urged that this witness is not a reliable witness. Though, this
witness claims to have seen the accident but he did not inform
police/family members of deceased. With respect to accident, this
witness also did not inform 108. Therefore, learned Tribunal has
rightly dismissed appellants' claim petition. With respect to above,
learned counsel for the respondent has relied upon Branch Manager
New India Assurance Company Limited Vs. Smt. Tara Yadav and
Others (M.A.No.2175 of 2023 decided on 19.12.2023) and Branch
Manager New India Assurance Company Limited Vs. Smt. Pushpa
Rungirey and Others (M.A.No.1544 of 2023 decided on
29.05.2024). Hence, appeal filed by the appellants be dismissed and
findings recorded by the Tribunal be affirmed.
5. Heard. Perused record of the case.
ANALYSIS AND FINDINGS:-
6. Perusal of record of the case as well as submissions of both the
parties reveal that appellants/applicants tried to prove the factum of
accident by offending vehicle, including the fact that at relevant point
of time, it was being driven rashly and negligently by respondent
No.1, by examining applicant witness Dhaneshwar Kumar Jhariya as
eye-witness and with charge-sheet as well as documents attached with
the charge-sheet. Tribunal held that applicant witness Dhaneshwar
Jhariya is not a reliable witness and also held that appellants failed to
prove that instant accident occurred from offending vehicle and that it
was being driven rashly and negligently by respondent No.1. Case of
respondent/Insurance is that applicant witness Dhaneshwar Jhariya is
not an eye-witness to the incident and his name is not mentioned in
the witness list attached with charge-sheet and factum of accident
from offending vehicle, cannot be proved solely by filing of charge-
sheet.
7. Having regard to facts of the case as well as issue involved in the
case, the question arises as to what should be the approach of the
Court while assessing and examining the evidence in a claim case,
including as to what is required /expected from applicant/claimant to
prove the factum of involvement of a particular vehicle (including
driver) and manner in which accident took place i.e rashness and
negligence on the part of driver of the offending vehicle and how and
in what manner applicant/claimant can prove the aforesaid.
8. It is but common that generally, grounds taken by the
insurance company /owner and driver of offending vehicle in a claim
case are that, report has not been lodged immediately after the
accident; name of driver/number of offending vehicle is not
mentioned in the earliest report; report was not lodged; name of
witnesses examined by the applicant/claimant, as eye witnesses, have
not been mentioned in the witness list of charge sheet; person
travelling along with deceased has not been examined; best witness
has not been examined; witness examined by the applicant/claimant
did not himself report the matter immediately after the accident; eye
witnesses have not been examined; in criminal case/trial, driver has
been acquitted; except charge-sheet and documents filed along with
the charge sheet, there is no evidence in support of applicant/claimant
case.
9. Aforesaid issues, including the effect and use of charge sheet
filed against the driver of offending vehicle in establishing the case of
applicant /claimant, have been examined and dealt with by Hon'ble
Apex Court in a Catena of decisions. Hon'ble Apex Court in Mangla
Ram Vs. Oriental Insurance CompanyLimited and Others (2018) 5
SCC 656, while dealing with the aforesaid, has held as under:-
"9. The High Court noted that the Tribunal was not convinced
about the involvement of the vehicle, despite which it held that
involvement was proved. Furthermore, no finding regarding
negligence of the driver of the jeep had been recorded by the
Tribunal rather it found that the appellant was negligent while
riding his motorcycle. The High Court took the view that mere
filing of a charge-sheet, without any finding of conviction, was
insufficient to prove negligence by Respondents 2 and 3.
Additionally, the High Court also held that the statement of the
appellant, wherein he claimed that the bumper of the jeep had
hit the rear of his motorcycle, was contradicted by the
investigation report of the jeep which recorded that it did not
bear out that the jeep had been involved in an accident. The
High Court, therefore, was pleased to set aside the Tribunal's
award and allowed the appeal filed by the driver and owner of
the jeep (Respondents 2 and 3 respectively) while dismissing
the appeal filed by the appellant.
15. The moot question which arises for our consideration in
these appeals is about the justness of the decision of the High
Court in reversing the finding of fact recorded by the Tribunal
on the factum of involvement of Jeep No. RST 4701 in the
accident occurred on 10-2-1990 at about 8.00-8.30 p.m. and
also on the factum of negligence of the driver of the jeep
causing the accident in question. On the first aspect, the High
Court has noted that the Tribunal having discarded the oral
evidence adduced by the appellant claimant could not have
based its finding merely on the basis of the FIR and the charge-
sheet filed against the driver of the offending vehicle and also
because the mechanical investigation report (Ext. 5) merely
indicated that on the left side of the offending vehicle a scratch
mark was noticed on the mudguard of the left tyre which
contradicted the statement of the claimant and the Police
Investigation Report much less showing involvement of the
vehicle in the accident. As regards the second aspect on the
factum of negligence, the High Court noted that the Tribunal
did not record any finding about the negligence of the driver of
the jeep and the site map (Ext. 2) would indicate that the
appellant claimant himself was negligent in driving the
motorcycle in the middle of the road.
18.The debatable issue is about the factum of involvement of
Jeep No. RST 4701 allegedly driven by Respondent 2 and
whether it was driven rashly and negligently as a result of which
the accident occurred.
20. Nevertheless, the Tribunal then adverted to the FIR and the
charge-sheet filed in respect of the accident naming Respondent
2 as accused. The Tribunal placed reliance upon the copy of
challan (Ext. 1), copy of FIR (Ext. 32), site map (Exts. 3 & 4),
jeep seizure report (Ext. 5), x-ray (Ext. 6) and injury report (Ext.
7), to opine that these police records gathered during the
investigation of the crime not only confirmed that an accident
had occurred but also indicated the involvement of the
offending Jeep No. RST 4701, which was driven by Respondent
2 at the relevant time. The Tribunal went on to conclude that
there was no reason to disagree with the opinion of the
Investigating Agency in that behalf. The charge-sheet was
accompanied by the statements of the appellant and the
witnesses Rooparam, Thanaram and Pratap Singh. On the basis
of the entirety of the evidence, the Tribunal had held that Jeep
No. RST 4701 which was driven by Respondent 2 at the
relevant time was involved in the accident in question, causing
severe injuries to the appellant.
21.The High Court, however, reversed this finding of fact
rendered by the Tribunal essentially on two counts : First, that
the Tribunal having discarded the oral evidence about the
involvement of Jeep No. RST 4701 in the accident in question,
allegedly driven by Respondent 2, could not and ought not to
have recorded the finding on the relevant issue against
Respondents 2 & 3 merely by relying on the documents forming
part of the police charge-sheet. Second, the jeep seizure report
(Ext. 5) indicated that only a scratch on the mudguard of the left
tyre of the vehicle was noticed, which contradicted the claim of
the appellant about the involvement of the vehicle.
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 v. Himachal RTC, (2009) 13 SCC 530
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
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
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 v. Himachal RTC,
(2009) 13 SCC 530, this Court in Parmeshwari v. Amir Chand,
(2011) 11 SCC 635 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 Parmeshwari v. Amir Chand, (2011) 11 SCC 635
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 and observed thus: (Parmeshwari
Case)
"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 (1980) 3 SCC 457, 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 :
"3. Road accidents are one of the top killers in
our country, especially 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 v. Joaquim Xavier Cruz, (2013) 10 SCC
646, 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 v. Himachal RTC, (2009) 13 SCC
530. In paras 8 & 9 of the reported decision, the dictum in United
India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC, has been
adverted to as under : (Dulcina Fernandes case)
"8. In United India Insurance Co. Ltd. v. Shila Datta (2011)
10 SCC 509, 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 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)
''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 v. Joaquim Xavier Cruz, (2013)
10 SCC 646 , 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.
26.In the above conspectus, the appellant is justified in contending
that the High Court committed manifest error in reversing the holistic
view of the Tribunal in reference to the statements of witnesses
forming part of the charge-sheet, FIR, jeep seizure report in
particular, to hold that Jeep No. RST 4701 driven by Respondent 2
was involved in the accident in question. Indeed, the High Court was
impressed by the mechanical investigation report (Ext. 5) which
stated that only a scratch mark on the mudguard of the left tyre of the
vehicle had been noted. On that basis, it proceeded to observe that the
same was in contradiction to the claim of the appellant claimant,
ruling out the possibility of involvement of the vehicle in the
accident. This conclusion is based on surmises and conjectures and
also in disregard of the relevant fact that the vehicle was seized by the
police after investigation, only after one month from the date of the
accident and the possibility of the same having been repaired in the
meantime could not be ruled out. In other words, the reasons which
weighed with the High Court for reversing the finding of fact
recorded by the Tribunal upon holistic analysis of the entire evidence,
about the involvement of Jeep No. RST 4701 in the accident, cannot
be countenanced. For, those reasons do not affect the other
overwhelming circumstances and evidence which has come on record
and commended to the Tribunal about the involvement of the subject
jeep in the accident in question. This being the main edifice, for
which the High Court allowed the appeal preferred by Respondents 2
& 3, it must necessarily follow that the finding of fact recorded by the
Tribunal on the factum of involvement of Jeep No. RST 4701 in the
accident in question will have to be restored for reasons noted
hitherto.
27. Another reason which weighed with the High Court to interfere
in the first appeal filed by Respondents 2 & 3, was absence of finding
by the Tribunal about the factum of negligence of the driver of the
subject jeep. Factually, this view is untenable. Our understanding of
the analysis done by the Tribunal is to hold that Jeep No. RST 4701
was driven rashly and negligently by Respondent 2 when it collided
with the motorcycle of the appellant leading to the accident. This can
be discerned from the evidence of witnesses and the contents of the
charge-sheet filed by the police, naming Respondent 2. This Court in
a recent decision in Dulcina Fernandes v. Joaquim Xavier Cruz,
(2013) 10 SCC 646, noted that the key of negligence on the part of
the driver of the offending vehicle as set up by the claimants was
required to be decided by the Tribunal on the touchstone of
preponderance of probability and certainly not by standard of proof
beyond reasonable doubt. Suffice it to observe that the exposition in
the judgments already adverted to by us, filing of charge-sheet against
Respondent 2 prima facie points towards his complicity in driving the
vehicle negligently and rashly. Further, even when the accused were
to be acquitted in the criminal case, this Court opined that the same
may be of no effect on the assessment of the liability required in
respect of motor accident cases by the Tribunal.
28. Reliance placed upon the decisions in Minu B. Mehta v.
Balkrishna Ramchandra Nayan, (1977) 2 SCC 441] and Oriental
Insurance Co. Ltd. v. Meena Variyal, (2007) 5 SCC 428, by the
respondents, in our opinion, is of no avail. The dictum in these cases
is on the matter in issue in the case concerned. Similarly, even the
dictum in Surender Kumar Arora v. Manoj Bisla, (2012) 4 SCC 552
will be of no avail. In the present case, considering the entirety of the
pleadings, evidence and circumstances on record and in particular the
finding recorded by the Tribunal on the factum of negligence of
Respondent 2, the driver of the offending jeep, the High Court
committed manifest error in taking a contrary view which, in our
opinion, is an error apparent on the face of record and manifestly
wrong."
10. Hon'ble Apex Court in Sunita and Others Vs. Rajasthan
State Road Transport Corporation and Others, (2020) 13 SCC
486 has also discussed the aforesaid issues and has held as under:-
"20. The thrust of the reasoning given by the High Court
rests on the unreliability of the witnesses presented by the
appellants: first, that the evidence given by Bhagchand
(AD 2) was unreliable because he was not shown as a
witness in the list of witnesses mentioned in the charge-
sheet filed by the police and that the said witness could not
identify the age of the pillion rider, Rajulal Khateek.
Second, the said pillion rider himself, Rajulal Khateek,
who was the "best" witness in the matter, was not
presented for examination by the appellants. The High
Court also relies on the site map (Ext. 3) to record the
finding on the factum of negligence of the deceased
Sitaram in causing the accident which resulted in his death.
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.(2018) 5 SCC 656 :
(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: (Mangla Ram case)
"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 v. Himachal
RTC, (2009) 13 SCC 530 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: (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.**********************************
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. ***********************************
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 v. Himachal RTC,
(2009) 13 SCC 530 this Court in Parmeshwari v. Amir Chand,
(2011) 11 SCC 635 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 the testimony
of the eyewitnesses in paras 12 & 13 and observed thus:
(Parmeshwari case).
"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, (1980) 3 SCC 457 , 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
country, especially 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 v. Joaquim Xavier Cruz, (2013) 10 SCC
646, 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 v. Himachal RTC, (2009) 13 SCC
530. In paras 8 & 9 of the reported decision, the dictum in United
India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC 509:, has
been adverted to as under (Dulcina Fernandes case)
"8. In United India Insurance Co. Ltd. v. Shila
Datta (2011) 10 SCC 509, 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."
9.The following further observation available in para 10 of the
Report would require specific note: [United India Insurance Co.
Ltd. v. Shila Datta, (2011) 10 SCC 509
"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 v. Joaquim Xavier Cruz, (2013)
10 SCC 646, 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.
27. The Tribunal's reliance upon FIR No. 247/2011 (Ext. 1)
and charge-sheet (Ext. 2) also cannot be faulted as these
documents indicate the complicity of Respondent 2. The
FIR and charge-sheet, coupled with the other evidence on
record, inarguably establishes the occurrence of the fatal
accident and also point towards the negligence of
Respondent 2 in causing the said accident. Even if the final
outcome of the criminal proceedings against Respondent 2
is unknown, the same would make no difference at least for
the purposes of deciding the claim petition under the Act.
This Court in Mangla Ram v. Oriental Insurance Co.
Ltd., (2018) 5 SCC 656, noted that the nature of proof
required to establish culpability under criminal law is far
higher than the standard required under the law of torts to
create liability.
30.Clearly, the evidence given by Bhagchand withstood the
respondents' scrutiny and the respondents were unable to
shake his evidence. In turn, the High Court has failed to take
note of the absence of cross-examination of this witness by
the respondents, leave alone the Tribunal's finding on the
same, and instead, deliberated on the reliability of
Bhagchand's (AD 2) evidence from the viewpoint of him
not being named in the list of eyewitnesses in the criminal
proceedings, without even mentioning as to why such
absence from the list is fatal to the case of the appellants.
This approach of the High Court is mystifying, especially in
light of this Court's observation (as set out in Parmeshwari
v. Amir Chand, (2011) 11 SCC 635 and reiterated in
Mangal Ram v. Oriental Insurance Co. Ltd., (2018) 5
SCC 656) that the strict principles of proof in a criminal
case will not be applicable in a claim for compensation
under the Act and further, that the standard to be followed in
such claims is one of preponderance of probability rather
than one of proof beyond reasonable doubt. There is nothing
in the Act to preclude citing of a witness in motor accident
claim who has not been named in the list of witnesses in the
criminal case. What is essential is that the opposite party
should get a fair opportunity to cross-examine the witness
concerned. Once that is done, it will not be open to them to
complain about any prejudice caused to them. If there was
any doubt to be cast on the veracity of the witness, the same
should have come out in cross-examination, for which
opportunity was granted to the respondents by the Tribunal.
34. Similarly, the issue of non-examination of the pillion
rider, Rajulal Khateek, would not be fatal to the case of the
appellants. The approach in examining the evidence in
accident claim cases is not to find fault with non-
examination of some "best" eyewitness in the case but to
analyse the evidence already on record to ascertain whether
that is sufficient to answer the matters in issue on the
touchstone of preponderance of probability. This Court, in
Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10
SCC 646, faced a similar situation where the evidence of
the claimant's eyewitness was discarded by the Tribunal and
the respondent was acquitted in the criminal case
concerning the accident. This Court, however, took the view
that the material on record was prima facie sufficient to
establish that the respondent was negligent. In the present
case, therefore, the Tribunal was right in accepting the claim
of the appellants even without the deposition of the pillion
rider, Rajulal Khateek, since the other evidence on record
was good enough to prima facie establish the manner in
which the accident had occurred and the identity of the
parties involved in the accident."
11. Recently, Honble Apex Court in ICICI Lombard General
Insurance Company Limited Vs. Rajani Sahoo and Others (2025) 2
SCC 599, has also dealt with the issues involved in the case and has
held as under:-
"7. The core contention of the appellant is that the Tribunal
as also the High Court relied on the fraudulent charge-sheet
prepared by the respondents in connivance with the police. In
short, the contention of the appellant is that the High Court
erred in relying on the charge-sheet to arrive at the
conclusion that the accident in question in which Udayanath
Sahoo lost his life had occurred due to the rash and negligent
driving of the truck insured with the appellant. Though
Respondents 1 and 2 did not file any counter-affidavit, the
learned counsel appearing for them would submit that there is
absolutely no illegality in relying on such documents
consisting of FIR and the final report prepared in relation to
the accident in question by the police, for the purpose of
considering the question of negligence in a motor vehicle
accident case. That apart, it is contended that the appellant
despite attributing connivance of the respondents with the
police, the appellant failed to prove the same. In short, it is
submitted that the appeal is devoid of merit and the same is
liable to be dismissed.
8. As regards the reliability of charge-sheet and other
documents collected by the police during the investigation in
motor accident cases, this Court in Mangla Ram v. Oriental
Insurance Co. Ltd., (2018) 5 SCC 656, held in para 27, thus :
"27. Another reason which weighed with the High
Court to interfere in the first appeal filed by
Respondents 2 and 3, was absence of finding by the
Tribunal about the factum of negligence of the driver of
the subject jeep. Factually, this view is untenable. Our
understanding of the analysis done by the Tribunal is to
hold that Jeep No. RST 4701 was driven rashly and
negligently by Respondent 2 when it collided with the
motorcycle of the appellant leading to the accident. This
can be discerned from the evidence of witnesses and the
contents of the charge-sheet filed by the police, naming
Respondent 2. This Court in a recent decision in Dulcina
Fernandes [Dulcina Fernandes v. Joaquim Xavier Cruz,
(2013) 10 SCC 646, noted that the key of negligence on
the part of the driver of the offending vehicle as set up
by the claimants was required to be decided by the
Tribunal on the touchstone of preponderance of
probability and certainly not by standard of proof
beyond reasonable doubt. Suffice it to observe that the
exposition in the judgments already adverted to by us,
filing of charge-sheet against Respondent 2 prima facie
points towards his complicity in driving the vehicle
negligently and rashly. Further, even when the accused
were to be acquitted in the criminal case, this Court
opined that the same may be of no effect on the
assessment of the liability required in respect of motor
accident cases by the tribunal."
(emphasis supplied)
9. It is true that the Tribunal had looked into the oral and
documentary evidence including the FIR, final report and such other
documents prepared by the police in connection with the accident in
question. The Tribunal had also taken note of the fact that based on
the final report, the driver of the offending truck was tried and found
guilty for rash and negligent driving. The High Court took note of
such aspects and found no illegality in the procedure adopted by the
Tribunal and consequently dismissed the appeal.
10. In the contextual situation it is relevant to refer to a decision of
this Court in Mathew Alexander v. Mohd. Shafi (2023) 13 SCC
510, this Court held thus: (SCC p. 514, para 12)
"12. ... A holistic view of the evidence has to be taken
into consideration by the Tribunal and strict proof of an
accident caused by a particular vehicle in a particular
manner need not be established by the claimants. The
claimants have to establish their case on the touchstone of
preponderance of probabilities. The standard of proof
beyond reasonable doubt cannot be applied while
considering the petition seeking compensation on account
of death or injury in a road traffic accident. To the same
effect is the observation made by this Court in Dulcina
Fernandes v. Joaquim Xavier Cruz (2013) 10 SCC 646
which has referred to the aforesaid judgment in Bimla
Devi v. Himachal RTC, (2009) 13 SCC 530."
11. Thus, there can be no dispute with respect to the
position that the question regarding negligence which is
essential for passing an award in a motor vehicle accident
claim should be considered based on the evidence
available before the Tribunal. If the police records are
available before the Tribunal, taking note of the purpose of
the Act it cannot be said that looking into such documents
for the aforesaid purpose is impermissible or inadmissible.
12. It is also a fact that the appellant had attributed that
the respondent claimants connived with police and
fraudulently prepared the charge-sheet. The contention is
that the vehicle insured with the appellant was not
involved in the accident and the accident had occurred
solely due to the rash and negligence on the part of the
deceased. But the evidence on record would reveal that
pursuant to the filing of the final report, cognizance was
taken for rash and negligent driving which resulted in the
death of Udayanath Sahoo."
12. Recently in Ranjeet and Another Vs. Abdul Kayam Neb and
Another (Arising out of SLP (C) No.10351 of 2019 decided on
25.2.2025), also Hon'ble Apex Court has discussed the aforesaid
issues and has held as under:-
"3. In an accident which took place on 13.06.2006, one
'Ramkaran' was alleged to have been hit by the bus
leading to his death. An FIR was lodged wherein charge
sheet was submitted against the driver of the bus. On the
claim being preferred to the Motor Accident Claims
Tribunal1, since, the eye-witnesses were not produced,
the Tribunal refused to grant any compensation. The
decision of the Tribunal was upheld by the High Court.
4. It is settled in law that once a charge sheet has been
filed and the driver has been held negligent, no further
evidence is required to prove that the bus was being
negligently driven by the bus driver. Even if the eye-
witnesses are not examined, that will not be fatal to prove
the death of the deceased due to negligence of the bus
driver.
5.In view of the aforesaid facts, we are of the opinion
that the Tribunal and the High Court both manifestly
erred in law in refusing to grant any compensation to the
claimants."
13. Keeping in mind the principles of law laid down/observations
made in aforesaid pronouncements, broadly basic prepositions of law
pertaining to, as to what should be the approach of the Court while
dealing with the cases of compensation arising out of use of motor
vehicles, including as to how and in what manner facts and evidence
of the case are to be examined and assessed and for aforesaid
purposes what factors etc. should be kept in mind and other related
issues, can be summarized as under:-
(i) that, section 166 and other provisions of the Motor Vehicle
Act, 1988 pertaining to claim of compensation arising out of use of
motor vehicle are part of welfare legislation and they have to be
interpreted and construed accordingly liberally;
(ii) that, applicant/claimant is not required to prove his case,
especially the factum of accident, including the number of offending
vehicle/name of driver of offending vehicle and the manner in which
the accident took place, beyond reasonable doubt. Applicant/ claimant
can prove his case by preponderance of probabilities and standard of
proof beyond reasonable doubt cannot be applied to such cases;
(iii) that, while determining the evidentiary value and the
weight to be attached to filing of charge-sheet, along with documents,
against driver of offending vehicle, filed after investigation into the
accident, as a piece of evidence for proving the case of
applicant/claimant, it has to be kept in mind that the charge sheet has
been filed by a public servant, who represents the State. Therefore, a
Court cannot at the very outset/threshold ask/require
applicant/claimant to prove the charge sheet and documents filed
along therewith and they (charge sheet and documents filed along
with the charge sheet) cannot be brushed aside lightly;
(iv) that, with respect to aforesaid, following observations of
Hon'ble Apex Court in State (NCT of Delhi) Vs. Sunil, (2001) 1
SCC 652 are relevant and they are as under:-
"21.We feel that it is an archaic notion that actions of the
police officer should be approached with initial distrust.
We are aware that such a notion was lavishly entertained
during British period and policemen also knew about it. Its
hang over persisted during post-independent years but it is
time now to start placing at least initial trust on the actions
and the documents made by the police. At any rate, the
court cannot start with the presumption that the police
records are untrustworthy. As a proposition of law the
presumption should be the other way around. That official
acts of the police have been regularly performed is a wise
principle of presumption and recognised even by the
legislature..............................................................................
................................"
(v) that, hence, unless otherwise, it is shown that there was
some nexus/connivance between the applicant/claimant, owner/ driver
of the offending vehicle and investigating officer etc. or investigation
officer had any enmity or motive to falsely implicate owner/ driver of
offending vehicle and in absence of any evidence pertaining thereto,
applicant/claimant can rely upon the charge sheet and documents filed
along with the charge-sheet, to establish that the accident has
occurred on account of rash and negligent driving of the driver of the
offending vehicle;
(vi) that, applicant/claimant's case cannot be dismissed
solely on the ground of delay in lodging the FIR/ acquittal in criminal
case/name and number of driver of offending vehicle was not
mentioned in the FIR/best witness has not been examined; person
travelling with the deceased or injured has not been examined/ best
eye witness has not been examined;
(vii) that, testimony of an applicant witness cannot be
discarded treating him as wholly unreliable, solely on the ground that
his name is not mentioned in the witness list attached with the charge
sheet/he did not inform the family members/relatives about the
accident, including name of driver and number of offending
vehicle/he himself did not report the matter to police etc.;
(viii). that, it has also to be kept in mind that as to whether
driver and owner of offending vehicle have remained present before
the Tribunal and whether they have filed reply and have also cross-
examined applicant witnesses and whether or not driver and owner of
offending vehicle got examined themselves or adduced any evidence
and also as to whether owner/driver of offending vehicle initially
appeared before the Court but was later on, proceeded ex-parte;
(ix). that, it has also to be kept in mind that having regard to
the time and place of accident, what type of evidence could have been
produced by the applicant/claimant and whether, looking to the time
and place of accident, it was possible for the applicant/claimant to
produce any oral evidence. A Court cannot ask or require a person to
do something that it is not possible for him to do;
(x) that, in view of aforesaid and having regard to object of
legislation, a Court should also keep in mind the relative
status/resources of the parties, involved in the case, i.e. private
applicant/claimant, owner/driver of offending vehicle, insurance
company and state through police authorities, who are duty bound to
investigate accident cases;
(xi) that, though, it is true that provisions of law are in the
nature of welfare legislation and the Court should adopt liberal
approach and applicant/claimant is not required to prove its case by
standard of proof beyond reasonable doubt and it can prove its case
by preponderance of probabilities;
(xii) But at the same time, if there is any one or more than one
suspicious circumstances, casting shadow of doubt on the
genuineness/veracity of applicant/claimant's case/version, then, the
Court would be more than justified in adopting a more cautious
approach and look for something more, which inspires Court's
confidence;
(xiii) that, further, in such cases, the Court should not
let/permit its liberal approach be misused by unscrupulous elements.
Hence, Court should always be on guard and make sure that there is
no nexus between the applicant/owner and driver of offending vehicle
and other persons and that its liberal approach is not being misused by
unscrupulous elements;
(xiv). that, it has also to be examined as to whether there is
anything on record to suggest that it is a case of connivance between
applicant and owner driver etc. and whether there is any probability
of false implication etc.;
(xv) that, with respect to aforesaid, pleadings of the parties
and overall facts and circumstances of each case, along with evidence
on record, have to be examined and assessed conjointly/cumulatively;
(xvi). that, each case has to be examined and assessed in the
light of factual matrix of the case and no straight jacket formula can
be laid down as to whether applicant/claimant has succeeded in
proving his case.
FACTUAL ANALYSIS OF THE CASE:-
14. So far as factum of accident is concerned, perusal of record of
the case reveals that appellants/claimants have examined Dhaneshwar
Jharia as eye witness to the accident and has also filed charge sheet as
well as documents attached therewith, to establish his case.
15. For examining and assessing the evidentiary value of applicant
witness Dhaneshwar Jharia, it would be appropriate to reproduce
examination-in-chief as well as cross-examination of Dhaneshwar
Jharia, which is as under:-
eq[; ijh{k.k }kjk Jh th-ih- jtd vf/koDrk okLrs vkosndx.k
1- ?kVuk fnukad 16-05-2020 dks ''kke djhc 6&7 cts xzke uSxbZ
guqeku eafnj ds ikl dh gSA eSa ?kVuk fnukad dks tcyiqj ls okil vius xzke
?kqy?kqyVksyk tk jgk FkkA eS tSls gh xzke uSxbZ guqeku eafnj ds ikl igqapk Fkk ml
le; eSus ns[kk fd ,d V~zd okgu tks fd dq.Me dh vksj ls tcyiqj dh vksj tk jgk
FkkA mlus ,d eksVj lkbZfdy dks tks fd tcyiqj ls dq.Me dh vksj tk jgh Fkh mls
VDdj ekjdj nq?kZVuk dkfjr dj fn;k Fkk vkSj V~zd okgu ekSds ls Hkkx x;k FkkA eSus
V~zd dk dzekad ns[kk Fkk tks ,e-ih-19&th-,- 0884 FkkA mDr V~zd dks mldk pkyd
nq?kZVuk ds le; ygjkrs gq;s pyk jgk FkkA eksVjlkbZfdy pkyd dks iwjs 'kjhj esa pksVsa
dkfjr gqbZ FkhA mlh le; ,d HkkbZtku fM.MkSjh rjQ ls vk;k ftlus 108 esa Qksu
yxk;k Fkk rc ,Ecwysal ekSds ij vk;h Fkh vkSj ge yksxksas us ?kk;y O;fDr dks ,Ecwyal
s
esa j[kk FkkA mlds ckn eS vius ?kj pyk x;k FkkA ckn esa tkudkjh izkIr gqbZ Fkh fd
mDr eksVjlkbZfdy lokj ?kk;y O;fDr dh ekSr gks x;h gSA eq>s tkudkjh yxh Fkh fd
e`rd vkseizdk'k ejkoh e.Mh baLisDVj ds in ij FkkA
vukosnd dza- 1 ,oa 2 %& ,d i{kh; A
izfrijh{k.k }kjk lqJh nhfIr 'kkL=h vf/koDrk okLrs vukosnd dza&3
2- eS tcyiqj ls ?kVuk fnuakd dks okil ?kqy?kqyVksyk tkjgk Fkk bl
lEcU/k esa dksbZ nLrkosth lk{; esjs ikl ugha gSA eSA jf'e ejkoh vkSj mlds ifjtuksa
dks ikgys ls ugha tkurk Fkk] dy oks esjs ikl vk;s FksA ;g dguk lgh gS fd eSus dy
fnukad 02-07-2023 ds iwoZ jf'e ejkoh vkSj mlds ifjtuksa dks ;g ugh crk;k Fkk fd
eSus vkseizdk'k ejkoh dh ?kVuk ns[kh gSA eSus viuh vksj ls iqfyl dks Hkh ?kVuk ds
lEcU/k essa dksbZ tkudkjh ugha nh Fkh vkSju gh iqfylokys ?kVuk ds lEcU/k esa eq>ls
iwNrkN djus vk;s FksA ;g dguk lgh gS fd vkt ls iwoZ eSus fdlh Hkh vnkyr esa ;g
ugha crk;k fd eSus vkseizdk'k dh ?kVuk ns[kh gSA ;g dguk lgh gS fd ekSds ij
iqfyl ds vk tkus ds ckn Hkh eSus iqfyl dks ;g ugh crk;k Fkk fd eSus vkse izdk'k
dh ?kVuk ns[kh FkhA ;g dguk xyr gS fd eSus ?kVuk gksrs gq;s ugha ns[kh Fkh A ;g
dguk xyr gS fd eS vkt ?kVuk ns[ks tkus ds lEcU/k esa vlR; dFku dj jgk gwaA
izfrijh{k.k }kjk Jh c`ts'k pkSjfl;k vf/koDrk okLrs vukosnd dza&4 ,oa 5
3- dqN ugha A
iqu% ijh{k.k & dqN ughaA
16. Now question arises as to whether applicant witness
Dhaneshwar Jharia is a reliable and trustworthy witness and as to
whether, he is an eye witness to the accident or not ?
17. It is correct that name of Dhaneshwar Jharia is not mentioned
in the witness list attached to charge sheet. In view of discussion in
the foregoing paras, in this Court's considered opinion, testimony of
Dhaneshwar Jharia cannot be discarded solely on aforesaid ground
and it cannot be said that he is not an eye witness but perusal of cross-
examination of aforesaid witness reveals that he did not already know
appellant/claimant Rashmi Maravi and her family members and they
came to him on 02.07.2023 and before 02.07.2023, he did not inform
Rashmi Maravi and her family members that he has witnessed the
accident. Now question arises that if applicant witness Dhaneshwar
Jharia and appellants were not acquainted with each other, then, how
appellants came to know that witness Dhaneshwar Jharia has
witnessed the accident. It is not so that name of witness was
mentioned in the witness list of charge sheet.
18. Therefore, in view of aforesaid, in this Court's considered
opinion, applicant witness Dhaneshwar Jharia does not appear to be a
reliable or trustworthy witness and there is serious doubt about him
having witnessed the accident. Therefore, learned Tribunal has rightly
disbelieved the applicant witness Dhaneshwar Jharia.
19. So far as documentary evidence is concerned, perusal of
Charge sheet (Ex.P/1) and FIR (Ex.P/2) reveals that on the basis of
statement of Mir Roshan Tahir Ali, number of offending vehicle
/truck has been mentioned in the FIR and it is also mentioned in the
FIR that on account of rash and negligent driving by driver of the
truck bearing registration number MP-19-GA-0884, accident occurred
and offending vehicle hit the deceased motorcycle and on account of
the same, deceased fell on the road along with the motorcycle and
sustained injuries. Name of Mir Roshan Tahir Ali is mentioned in the
witness list of charge sheet (Ex.P/1). Accident has occurred on
16.05.2020 and FIR (Ex.P/2) has been lodged on 06.06.2020, after
merg enquiry. Further, perusal of seizure memo (Ex.P/11) reveals that
offending truck, along with documents, has been seized from the
respondent/non-applicant No.1 Sanjay Kumar Pandey, driver of
offending vehicle on 08.06.2020.
20. Perusal of record of the case reveals that driver and owner of
offending vehicle had appeared before the Tribunal after service of
notice and at the stage of filing of written statement, on account of
their non appearance, they were proceeded ex-parte. Applicants are
resident of Village Badikhera, District Mandla, driver of offending
vehicle is resident of Allahabad, U.P. and presently residing in
Village Bhikampur, District Mandla and owner of offending vehicle
is resident of Jabalpur and presently residing in Niwas, District
Mandla.
21. There is nothing on record to show that appellants/claimants
have conspired/connived with owner and driver of offending
vehicle/Investigating authorities in any manner whatsoever.
Respondent/non-applicant Insurance Company has examined Mohit
Ghadigavkar (Office Assistant) but perusal of his testimony reveals
that he is completely silent as to how accident occurred. This witness
is completely silent on the point of factum of accident. This witness
has also admitted that insurance company has investigated the matter
through its own investigator but this report has not been filed in the
instant case.
22. Thus, there is nothing on record to cast shadow of doubt over
genuineness/authenticity of investigation proceedings. Further, in
absence of any contrary evidence on record, investigation
proceedings, including filing of charge-sheet, after investigation into
the accident, cannot be doubted. It is correct that appellants/claimants
have not examined Mir Roshan Tahir Ali but just on the ground of
non-examination of aforesaid witness, appellants/claimants' claim
petition cannot be dismissed. If respondents, including owner and
driver of offending vehicle/insurance Company, have any doubt over
genuineness/authenticity of investigation proceedings/filing of charge
sheet, then, they should have examined investigating officer/Mir
Roshan Tahir Ali. In this respect, co-ordinate Bench of this Court in
The Oriental Insurance Company Ltd. Vs. Rooplal Uike and
others (M.A.No.1872/2017, decided on 25.10.2023) has held as
under:-
"4. It is true that he is not an eye witness but at
the same time, insurance company did not discharge its
burden by examining the I.O. of the case as to how they
had collected the number of the offending vehicle. There
is no protest application on behalf of the owner, driver of
the offending vehicle to cause dispute in regard to his
involvement, therefore, when all these facts are examined,
there is no infirmity in the impugned award calling for
interference."
23. From principles of law as discussed in preceding paras, it is
established that in appropriate cases, appellants/claimants can prove
their case by filing of charge-sheet and documents attached therewith.
Further, claimants have to prove their case by preponderance of
probabilities and not beyond reasonable doubt.
24. In the instant case, owner and driver of offending vehicle
appeared before the Tribunal but they did not contest the petition filed
by the appellants/claimants and they have not examined themselves
and have not cross-examined applicant witness. Further, there is
nothing on record to show that owner/driver of offending vehicle
complained to higher police authorities that driver of offending
vehicle/offending vehicle has been falsely implicated in the instant
case.
25. Therefore, having regard to factual differences as well as
principles of law laid down by Apex Court in the preceding paras,
principle of law laid down in Branch Manager New India
Assurance Vs. Smt. Tara and Branch Manager New India
Assurance Company Vs. Smt. Pushpa Rungirey, do not help the
appellants in any manner whatsoever.
26. Hence, in view of discussion in the foregoing paras and having
regard to pronouncements, as referred and discussed in the preceding
paras, in this Court's considered opinion, from evidence available on
record, it is clearly established that appellants/claimants have
succeeded in establishing that driver of offending vehicle caused
accident by driving the offending vehicle rashly and negligently.
Resultantly, findings of the Tribunal with respect to aforesaid are
hereby set-aside.
27. Next question before this Court is whether at the time of
accident, offending vehicle was being driven in violation of terms and
conditions of insurance policy?
28. From findings recorded by the Tribunal in the impugned
award as well as from testimony of non-applicant witness Mohit
Ghadigavkar and Ex.D/2 and Ex.D/3, it is evident that at the time of
accident, driver of offending vehicle was having license to drive
LMV (non-transport) vehicle. Learned counsel for the appellants,
after referring and relying upon Mukund Dewangan (supra) as well
as Ex.D/1 and Ex.D/5 submits that unladen weight of offending
vehicle is 7000 kgs. Therefore, in view of principle of law laid down
in Mukund Dewangan (supra), driver of offending vehicle was
legally entitled to drive the offending vehicle. Therefore, it cannot be
said that at the time of accident, offending vehicle was being driven in
violation of terms and conditions of insurance policy.
29. A five Judge Bench of Hon'ble Apex Court in Bajaj Alliance
General Insurance Company Limited Vs. Rambha Devi and
others, (2025) 3 SCC 95, has examined aforesaid issue and has held
as under:-
181. Our conclusions following the above
discussion are as under:-
181.1 A driver holding a license for Light Motor
Vehicle (LMV) class, under Section 10(2)(d) for
vehicles with a gross vehicle weight under 7,500
kg, is permitted to operate a 'Transport Vehicle'
without needing additional authorization under
Section 10(2)(e) of the MV Act specifically for the
'Transport Vehicle' class. For licensing purposes,
LMVs and Transport Vehicles are not entirely
separate classes. An overlap exists between the
two. The special eligibility requirements will
however continue to apply for, inter alia, e-carts,
e- rickshaws, and vehicles carrying hazardous
goods.
181.2 The second part of Section 3(1), which
emphasizes the necessity of a specific requirement
to drive a 'Transport Vehicle,' does not supersede
the definition of LMV provided in Section 2(21) of
the MV Act.
181.3 The additional eligibility criteria specified
in the MV Act and MV Rules generally for driving
'transport vehicles' would apply only to those
intending to operate vehicles with gross vehicle
weight exceeding 7,500 kg i.e. 'medium goods
vehicle', 'medium passenger vehicle', 'heavy
goods vehicle' and 'heavy passenger vehicle'.
181.4 The decision in Mukund Dewangan (2017)
14 SCC 663 is upheld but for reasons as
explained by us in this judgment. In the absence of
any obtrusive omission, the decision is not per
incuriam, even if certain provisions of the MV Act
and MV Rules were not considered in the said
judgment.
30. Thus, gross vehicle weight of offending vehicle is 16200 Kgs.
Therefore, in view of law laid down by Honble Apex Court in the
case of Bajaj Alliance General Insurance Company Limited Vs.
Rambha Devi and others, (2025) 3 SCC 95, driver of offending
vehicle was not entitled to drive the offending vehicle as he was
having driving licence to drive the light motor vehicle (non-
transport). Therefore, in the instant case, it is established that at the
time of accident, offending vehicle was being driven in violation of
terms and conditions of insurance policy.
31. So far as compensation is concerned, death of deceased Om
Prakash Maravi in motor vehicle accident is not in dispute. So far as
age of deceased, at the time of accident, is concerned, learned
Tribunal in para 25 of the impugned award has determined deceased's
age as 35 years and as per findings recorded by the Tribunal in para
27 of the impugned award, number of dependent on deceased is four.
32. Hence, in view of law laid down in Sarla Verma & Others
Vs. Delhi Transport Corporation and Anr. (AIR 2009 SC 3104)
and National Insurance Company Limited Vs. Pranay Sethi (AIR
2017 SC 5157), multiplier of 16 is to be applied and 1/4th is to be
deducted for personal and living expenses. From testimony of
applicant witness Ganesh Prasad Koshta (DW-2) and Ex.P/12, it is
established that at the time of accident, deceased was working as
Assistant Sub-Inspector in Krishi Upaj Mandi, Jabalpur. Therefore, in
view of law laid down by Hon'ble Apex Court in Pranay Sethi
(supra) and having regard to the age and nature of job of deceased,
50% is to be added as future prospects.
33. So far as income of deceased is concerned, from testimony of
appellants/claimants witness Ganesh Prasad Koshta (Accountant) and
Ex.P/12's salary slip, it is evident that at the time of accident, gross
salary of deceased was 28,737/-. From aforesaid amount, Rs.250/- for
professional tax and Rs.200/- for conveyance allowance has to be
deducted. After deducting professional tax and conveyance
allowance, salary of deceased comes to Rs.28,287/-.
34. Having regard to aforesaid, compensation amount is
calculated as under:-
Sr.NO. HEADS COMPENSATION
1. Monthly income of deceased Rs.28,287/-
2. After deducting 10% tax Rs.25,458/-
3. Yearly income of deceased Rs.3,05,496/-
4. Future Prospects 50% Rs.4,58,244/-
5. 1 /4th deductions for Personal and Rs.3,43,683/-
living expenses
6. Multiplier of 16 Rs.54,98,928/-
7. Funeral Expenses Rs.15,000/-
8. Loss of Estate Rs.15,000/-
9. Consortium Rs.1,60,000/-
10. Total Compensation Rs.56,88,928/-
35. Now question arises as to whether, appellants/claimants and
respondents No. 4 and 5 are entitled to receive Rs.56,88,928/- as
compensation. With respect to aforesaid, it has to be kept in mind that
appellant/claimant Rashmi Maravi has admitted in her cross-
examination that after death of her husband, she has got
compassionate appointment. Therefore, having regard to principle of
law laid down by Hon'ble Apex Court in New India Assurance
Company Limited Vs. Sunita Sharma and others (SLP
No.9515/2020, decided on 08.04.2025) as well as Krishna and
others Vs. Tekchand (SLP) C.No.5044/2019, decided on
05.02.2024 (SC), it would be appropriate to deduct 25% from
compensation amount. Resultantly, appellants/claimants and
respondents No.4 and 5 are entitled to receive Rs.42,66,696/- as
compensation along with interest at the rate of 6% per annum from
the date of application.
36. It is already clear from the discussion in earlier paras that on
the date of accident, respondent No.1 was driver and respondent No.2
was owner of offending vehicle involved in the accident and it was
insured with respondent No.3. It is also proved that the offending
vehicle was being driven in violation of terms and conditions of
insurance policy. Admittedly, in the present case, deceased is a third
party. Therefore, it is a fit case to apply the principle of pay and
recover (National Insurance Co. Ltd. Vs.Swaran Singh & Others-
2004 ACJ 1 (SC); Amrit Paul singh Vs. TATAAIG General
Insurance Co. Ltd.-AIR 2018 SC 2662 relied on).
37. So far as payment of adjudged compensation and interest is
concerned, respondent no.1, being driver and respondent No.2 being
owner of the offending vehicle involved in the accident, are
personally liable to pay the compensation to the appellants and
respondent Nos. 4 and 5 and though the offending vehicle involved in
the accident was insured with respondent No.3, but, as it was being
driven in violation of terms and conditions of insurance policy,
respondent no.3 is not liable to pay the adjudged compensation and
interest, and therefore, it is exonerated from liability to pay the same.
Therefore, respondents no.1 and 2 are liable to pay the above
compensation along with above interest to the appellants and
respondents No. 4 and 5 jointly and severely. But as the principle of
pay and recover has been applied in the instant case, therefore, it is
directed that respondent No.3, insurance company, shall at the first
instance pay the adjudged compensation along with interest as
adjudged to the appellants and respondents No.4 and 5 but respondent
no.3, insurance company, shall be entitled to /shall be at liberty to
recover the same from respondent no.1 and 2 (driver and owner of
offending vehicle) in the manner as provided in National Insurance
Co. Ltd. Vs. Swaran Singh & Others-2004 ACJ 1 (SC); Amrit
Paul Singh Vs. TATAAIG General Insurance Co. Ltd.-AIR 2018
SC 2662; Shammana Vs. Divisional Manager Oriental Insurance
Co. Ltd.-AIR 2018 SC 3726/section 174 Motor Vehicles Act.
38. Accordingly, appeal filed by the appellant is allowed and
disposed off.
(ACHAL KUMAR PALIWAL)
JUDGE
hashmi
