Orissa High Court

Sanjay Kumar Mohanta And Another vs Nabakishore Mohanta And Another on 28 February, 2023

        IN THE HIGH COURT OF ORISSA AT CUTTACK
                        MACA No.717 of 2016

(From the judgment dated 29th March, 2016 of learned 1st MACT,
Mayurbhanj, Baripada passed in MAC No.34 of 2015.)


 Sanjay Kumar Mohanta and Another            ....               Appellant
                           -versus-
 Nabakishore Mohanta and Another             ....           Respondents

Advocate(s) appeared in this case:-

           For Appellant          : Mr. R.K. Rout, Advocate

           For Respondents        : Mr. P.K. Mahali on behalf of Mr.
                                    S.S.   Kanungo,    counsel   for
                                    Respondent No.2

                                    Mr. B.B. Singh,      counsel        for
                                    Respondent No.1

              CORAM: JUSTICE B.P. ROUTRAY
                             JUDGMENT

th 28 February, 2023 B.P. Routray, J.

1. The matter is taken up through hybrid mode.

2. Heard Mr. R.K. Rout, learned counsel for the claimant -

Appellants, Mr. P.K. Mahali on behalf of Mr. S.S. Kanungo, learned

counsel for insurer - Respondent No.2 and Mr. B. Singh, learned counsel

for owner - Respondent No.1.

3. Present appeal by the claimants is against the impugned judgment

dated 29th March, 2016 of learned 1st MACT, Mayurbhanj, Baripada

passed in MAC No.34 of 2015, wherein the tribunal has passed nil

award.

4. The facts of the case are that deceased Arati Mohanta died on 4th

April, 2014 at SCB Medical College and Hospital, Cuttack for injuries

sustained by her in the motor vehicular accident dated 27th March, 2014

while she was going in the motor cycle bearing registration number OR

04M 4592 being driven by one Dusmanta Mohanta at Kadadiha under

Karanjia P.S. Upon death of the deceased at SCB Medical College,

Mangalabag UD PS Case No.484 dated 4th April, 2014 was registered.

Subsequently, on the report lodged by the husband of Arati (the

deceased) namely, Sanjaya Kumar Mohanta (P.W.1), Karanjia P.S. Case

No.103 dated 14th August, 2014 was registered and the enquiry report of

the UD case merged in the same. The police upon completion of

investigation submitted charge-sheet in Karanjia P.S. Case No.103 of

2014 under Section 279/304-A of the I.P.C. against the accused driver

namely Dusmanta Mohanta.

5. In course of enquiry in the Mangalabag UD PS case, the inquest of

the dead body was held under Ext.A in which P.W.1, the husband of the

deceased put his signature as a witness. According to column 9 of the

said inquest report under Ext.A, the reason of death is recorded as

follows:-

"On 27.3.2014 at about 7 P.M. his wife Arati Mohanta after finishing school work while returning to house, near Kadadiha, an Indica Car bearing Regn. No. OR-02-AS-8715 being driven in a rash and negligent manner dashed against her from behind as a result of which she fell down on the road sustaining severe head injury and soon thereafter, she was taken by him to Karanjia Govt. hospital for treatment and as her condition became serious, she was referred to S.C.B. Medical College, Cuttack and while undergoing treatment, she died in the morning of 4.4.14."

6. But in the claim application, according to the claimants, when the

deceased was going as a pillion rider in the motor cycle, the same dashed

against a street dog, as a result of which she fell down and sustained

injuries leading to her death. P.W.1, 2 and 3, the eye witnesses, examined

on behalf of the claimants have stated in the same line. Apart from the

oral evidence of those witnesses, other documentary evidence including

the F.I.R., charge-sheet, etc. were also adduced from the side of the

claimants.

7. The insurance company though did not examine any witness on

their behalf, but adduced the certified copy of the inquest report, seizure

list and Zimanama as Ext.A, Ext.B and Ext.C respectively on their

behalf.

8. The tribunal on analysis of evidence adduced from both sides,

placed reliance on the endorsement made at column 9 under Ext.A and

disbelieved the case of the claimants regarding death of the deceased by

fall from the motor cycle without involvement of the car. The tribunal

further held that the involvement of the Indica car to cause the accident is

established on record and therefore, negligence on the part of the driver

of motor cycle bearing registration number OR 04M 4592 is

unbelievable, which has been implanted to manage compensation.

Resultantly, the tribunal refused to grant any compensation.

9. It needs to be mentioned at the outset that the tribunal though has

framed four issues regarding maintainability of the claim application,

negligence and involvement of the offending motor cycle in the accident,

and the entitlement of the claimants to get compensation, but did not

answer all those issues except the negligence aspect. The tribunal has

finally opined that the claimants are not entitled to get any compensation

since they have implanted the motor cycle bearing registration number

OR 04M 4592 in the accident.

10. Upon perusal of the analysis made by the Tribunal under issue

number 2 and 3, it is seen that the tribunal has disbelieved such oral

evidence and submission of charge-sheet by police mainly on the ground

that P.W.1, the husband of the deceased is a teacher and therefore, what

is mentioned at column 9 of the inquest report is within his knowledge,

which he is subsequently trying to avoid. On analysis of such reasons

given by the tribunal to disbelieve the case of the claimants, this court is

unable agree with the conclusion of the tribunal. It is for the reasons

discussed below.

11. First of all, admittedly, the endorsement made at column 9 of

Ext.A, the inquest report is not in the hand-writing of P.W.1. It is not

known who has made such endorsement in the inquest report. While

cross-examining this P.W.1, the insurer has not asked any question to

him to suggest anything that the endorsement at column 9 is in his hand

writing.

12. Secondly, this inquest report under Ext.A was prepared in course

of enquiry of Mangalabag UD PS case. Neither the author of this inquest

report, i.e. Enquiry Officer in the UD Case, nor the investigating officer

in Karanjia P.S. Case No.103 of 2014 has been examined by the insurer

to prove the contents of Ext.A. Admission of a document does not make

its contents proved automatically. Section 61 of the Indian Evidence Act

prescribes the manner in which a primary evidence is to be led in respect

of a document. This is not followed in the case at hand and therefore, the

contents of Ext.A, particularly at column 9, cannot be said to have

proved on record.

13. Thirdly, it is the consistent case of the claimants that the deceased

sustained such injuries due to fall from the motor cycle while going as a

pillion rider as the same hit against a street dog. P.W.2 and P.W.3, both

are eye witnesses to the occurrence who have categorically stated that the

deceased was going as a pillion rider in the motor cycle driven by

Dusmanta Kumar Mohanta at the time of accident and fell down from the

same. Their evidences remain unassailed in cross-examination. So, in

absence of any rebuttal evidence to the oral evidence of direct witnesses,

they cannot be disbelieved.

14. The other ground mentioned by the tribunal that the delay in

lodging the F.I.R. has not been explained by the claimant - P.W.1, is not

a material ground to disbelieve the F.I.R. story. The standard of evidence

and its appreciation in accident compensation cases is different from the

standard of proof required in any other case. The Hon'ble Supreme Court

in the case of Bimla Devi and others vs- Satbir Singh and others, (2013)

14 SCC 345, have observed that, "in Claim Case, it is difficult to get

witnesses, much less eye witness, thus extremely strict proof of facts in

accordance with provision of Indian Evidence Act may not be adhered to

religiously. Some amount of flexibility has to be given to those cases, but

it may not be construed that a complete go-by is to be given to the Indian

Evidence Act."

15. Further, in the case of Sunita and others vs- Rajasthan State

Road Transport Corporation and others, (2020) 13 SCC 486, the

Supreme court have 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. It is

held that,

"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."

16. Thus in the instant case, on analysis of the materials in its entirety,

this court being not agreeing with the finding of the tribunal, the

impugned judgment is set side. Since the tribunal has not determined the

computation of compensation it is felt appropriate to remand back the

matter to the tribunal for fresh adjudication.

17. In view of the discussions made above, it is held that the deceased

Arati Mohanta died due to the injuries sustained in the motor vehicular

accident dated 27th March, 2014 involving the motor cycle bearing

registration number OR 04M 4592 being driven by the accused driver

Dusmanta Mohanta. Accordingly issue number 2 and 3 as framed by the

tribunal are answered by this court. The matter is remitted back to the

tribunal to give its finding on issue number 1 and 4 for the said purpose.