Tiki Sethi vs Bhagaban Das Agarwalla And ...
2023 Latest Caselaw 5721 Ori

                                       IN THE HIGH COURT OF ORISSA AT CUTTACK

                                           MACA No.366 of 2006 & MACA No.385 of 2006

                             (From the order dated 16th December, 2005 passed by the 1st Motor
                             Accident Claims Tribunal, Mayurbhanj, Baripada, in M.A.C.T. Misc.
                             Case Nos.116/03 & 117/03)
                                                            -----

                             MACA No.366 of 2006
                             Tiki Sethi                                             ......           Appellant

                                                                               Versus


                             Bhagaban Das Agarwalla and another                     .......          Respondents

                             Advocate(s) appeared in this case:-

                              For Appellant                    :        Mr.B.N.Rath, Advocate

                              For Respondents                  :        Mr.G.P.Dutta, Advocate
                                                                        (For Respondent No.2)

                             MACA No.385 of 2006
                             Padma Marandi                                          ......           Appellant

                                                                               Versus

                             Bhagaban Das Agarwalla and another                     .......          Respondents


                             Advocate(s) appeared in this case:-

                              For Appellant                    :        Mr.B.B.Singh, Advocate

                              For Respondents                  :        Mr.G.P.Dutta, Advocate
                                                                        (For Respondent No.2)
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 16-May-2023 10:49:39         MACA No.366 of 2006 & MACA No.385 of 2006                     Page 1 of 10
                                                 CORAM : JUSTICE B.P. ROUTRAY

                                                                 JUDGMENT

11th May, 2023

B.P. Routray,J.

1. Heard Mr.Rath and Mr.Singh, learned counsel for the claimants and Mr.Dutta, learned counsel for the Insurer-Respondent No.2.

2. Both the appeals are directed against the common impugned judgment dated 16th December, 2005 passed by 1st Motor Accident Claims Tribunal, Mayurbhanj, Baripada, in M.A.C.T. Misc. Case Nos.116/03 & 117/03, wherein the Tribunal has refused to grant any compensation by disbelieving the case of claimants regarding death of the deceased persons in a motor vehicular accident.

3. MACA No.366 of 2006 is in respect of M.A.C.T. Misc. Case Nos.116/03 and MACA No.385 of 2006 is in respect of M.A.C.T. Misc. Case Nos.117/03 concerning death of Muna Sethi and Laxman Marandi respectively.

4. According to the claimants, both the deceased persons while standing on Tarakothi Bridge under Betnoti Police Station on 3rd March 2002 were dashed by offending truck bearing Registration No.ORM-2655 being driven in rash and negligent manner. The deceased Muna Sethi died at the spot and Laxman Marandi was shifted to the hospital where he succumbed to injures while undergoing treatment. Initially F.I.R. was lodged by the treating doctor stating unknown Signature Not Verified Digitally Signed vehicle and accordingly, police report was submitted stating 'no clue'. Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2023 10:49:39

Subsequently, a complaint case was filed and on the basis of direction of the concerned criminal court, the case was reopened and supplementary charge-sheet was submitted on 11th July, 2003 against the driver of offending truck for commission of offences under Sections 279/304-A of the IPC and Section 187 of the M.V.Act.

5. Six witnesses were examined from the side of claimants besides filing of copies of different documents including certified copies of police papers. The Insurance Company though did not examine any witness but relied on the copies of police papers in support of their stance.

6. The Tribunal, upon analysis of the evidences, disbelieved death of the deceased persons in the accident involving offending vehicle. The Tribunal founded its conclusion mainly on the reasons that, first, the evidences of the eyewitness viz. P.W.2 & 5 are not believable and secondly, the claimants have received compensation of Rs.25,000/- each from the District Collector for death of deceased persons in hit and run case.

7. Mr.Rath as well as Mr.Singh submits on behalf of the claimants that the claimants have received a sum of Rs.25,000/- each from the District Collector without knowing implications of the same as they are illiterate persons. They further submit that receipt of aforesaid amounts of Rs.25,000/- does not disentitle them to claim compensation under Section 166 of the M.V.Act and for this purpose, aforesaid amounts received by them can be adjusted from the compensation Signature Not Verified amount.

Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2023 10:49:39

It is again submitted on behalf of the claimants that evidences of the eyewitnesses as well as the driver and the owner of offending truck has been disbelieved by learned Tribunal without satisfactory reasons and the Tribunal did not appreciate the evidences of the eyewitnesses properly.

8. Mr.Dutta, on the other hand, submits for the Insurer that the evidences of P.W.2 & 5, the eyewitnesses, cannot be believed on analysis of their statements and for the reason that they did not report the same before the police immediately after the accident. He again contends that once the sum of Rs.25,000/- was received by each claimant from the District Collector on 3rd April and 22nd July, 2003 respectively for death due to hit and run case, their conduct to implicate offending vehicle in the accident is suspicious and deliberate.

9. As seen from record, P.W.2 & 5 have stated to have seen the accident. P.W.4 is the driver of the offending truck and P.W.6 is the owner thereof. P.W.1 & 3 are the respective claimants. Admittedly, P.W.1, 3 & 6 have not seen the accident. But P.W.6 admits the accident based on the statement made by P.W.4, his driver, before him. The fact remains that P.W.6 being the owner admits involvement of the offending vehicle in the accident causing death of the deceased persons. So far as P.W.2 is concerned, his evidence reveals that he saw the accident from a distance of 200 to 300 meters away and though he did not confirm the registration number of offending vehicle but says that it was a local vehicle. The evidence of P.W.5 is clear and categorical to the extent that he saw the offending vehicle causing the accident Signature Not Verified Digitally Signed resulting death of deceased persons as well as injury to his motorcycle Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2023 10:49:39

which he had kept near the spot and went for urination. This part of the statement of P.W.5 has though not been rebutted in cross-examination but the Tribunal has gone to disbelieve the same on the ground that he did not tell about the occurrence to the police earlier. Here it is important to point out a relevant fact, as has been taken a ground in the appeal memo (MACA No.385 of 2006), that, P.W.5 has raised a claim in respect of damages done to his motorcycle bearing Registration No. OR-11A-4446 against the offending vehicle before the Consumer Forum, Baripada in C.D.Case No.122 of 2004 towards own damage claim against the insurer of the motorcycle i.e. Oriental Insurance Co. Ltd. The Consumer Forum has granted a sum of Rs.14,585/- in favour of P.W.5 with direction to Oriental Insurance Co. Ltd. to pay the amount.

10. Coming to see the evidence of P.W.4, who is none other than the driver of the offending truck, he has admitted about hitting of the Dala of truck to the deceased persons unknowingly, which he came to know subsequently after many days. P.W.6 being owner of the vehicle has endorsed the statement of P.W.4 made before him.

11. Undisputedly, police submitted supplementary charge-sheet against P.W.4, the driver of the offending truck for commission of such offences under the I.P.C. as well as the M.V.Act. Neither P.W.4 nor P.W.6 challenged the same.

12. In a case for compensation relating to motor accident case, the standard of proof to be adduced has been well settled in different decisions of the Supreme Court. In Bimal Devi and others vrs. Satbir Signature Not Verified Singh and others, (2013)14 SCC 345, it has been observed that it is Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary difficult to get witnesses in claim cases, much less eyewitnesses, thus Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2023 10:49:39

extremely strict proof of facts in accordance with provisions of the Evidence Act may not be adhered to religiously and some amount of flexibility has to be given to those cases. In Bimala Devi and others vrs. Himachal Road Transport Corporation and others ((2009)13 SCC 530, the Supreme Court has observed, "11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal strict 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."

13. Further, in Sunita and others vrs. Rajasthan State Road Transport Corporation and others, (2020) 13 SCC 484, it is observed that the claimants are merely to establish their case on the touchstone of preponderance of probability where the standard of proof beyond reasonable doubt cannot be applied by the tribunal. In the case of Anita Sharma and others vs- New India Assurance Company Limited and another, (2021) 1 SCC 171, the relevant observations are reproduced below:

"16. It is quite natural that such a person who had Signature Not Verified accompanied the injured to the hospital for immediate Digitally Signed medical aid, could not have simultaneously gone to the Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2023 10:49:39

police station to lodge the FIR. The High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to the police. Further, as the police had themselves reached the hospital upon having received information about the accident, there was perhaps no occasion for AW 3 to lodge a report once again to the police at a later stage either.

17. Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot, or the appellant-claimants' hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometers away in an altogether different State. Close to the facts of the case in hand, this Court in Parmeshwari v. Amir Chand, viewed that: (SCC p. 638, para12)

"12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but 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 sensitized enough to appreciate the plight of the victim.

* * *

15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a Signature Not Verified particular bus in a particular manner may not be possible to Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary be done by the claimants. The claimants were merely to Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2023 10:49:39

establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."

In the case of Janabai and others vs- I.C.I.C.I. Lambord Insurance Company Ltd., 2022 SCC OnLine SC 994, it has been stated that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 of the Motor Vehicle Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of Appellant No.1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial.

14. In the case at hand, and as seen from the evidence of P.W.2, 4, 5 & 6, no inconsistency or discrepancy is seen with regard to date, time and place of accident. Their evidences are found corroborating in respect of involvement of the offending truck and hitting of its backside Dala to the deceased persons. So in absence of any rebuttal adduced from the side of the Insurer, such corroborating evidences adduced by the eyewitnesses coupled with findings given in the charge-sheet by the police cannot be discarded out for the only reason that they have not earlier reported about involvement of the offending truck before police. It is not that the death of the deceased persons relating to motor vehicular accident is disputed, but the dispute is only to the extent of involvement of the offending vehicle. On analysis of evidences of the witnesses and corroborated with the Signature Not Verified findings of police stated in the charge-sheet, in the opinion of this Court, Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary the claimants have successfully established their case regarding Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2023 10:49:39

involvement of the offending vehicle in the accident and negligence on the part of its driver for causing death of the deceased persons. The same is accordingly concluded.

15. So far as the grant of compensation given by the District Collector in favour of the claimants is concerned, it is seen that the Collector has granted compensation of Rs.25,000/- each in favour of the claimants out of the solatium fund for death of the deceased persons in hit and run cases. The status of the claimants is that they belong to poorer section of the society and they are illiterate. It is not excepted on the part of claimants to deny for the offer of amounts given to them by the Collector keeping in view their economic status and educational background, that too in a remote place in the district of Mayurbhanj. So receipt of such amount on their part from the District Collector would certainly not take away their right to claim compensation under Section 166 of the M.V.Act. Accordingly, the claimants are found entitled for compensation as would be found just and proper.

16. As per the claimants, the deceased Muna Sethi and Laxman Marandi were young men aged about 25 years and 27 years respectively. Both of them were daily labourers. When Laxman Marandi was unmarried and his mother is the claimant, Muna Sethi was married and his wife is the claimant. The accident took place on 3rd June, 2002 when the prescribed minimum wage rate was Rs.50/- per day in respect of unskilled labourers as per Government of Odisha in Labour Department Notification No.18105 dated 29th December 2001. Accordingly, computing their income at Rs.1500/- per month and future prospects to Signature Not Verified Digitally Signed the extent of 40%, with necessary deduction towards personal expenses Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2023 10:49:39

and addition of general damages, and consequential interest @6% per annum, a consolidated sum of Rs.5,50,000/-(Five lakhs fifty thousand) and Rs.5,00,000/-(Five lakhs) are proposed to the parties in respect of death of Muna Sethi and Laxman Marandi respectively taking note of the amounts received by them from the District Collector. Mr.Rath as well as Mr.Singh, learned counsels appearing for the claimants agree to the aforesaid amount.

17. In the result, both the appeals are disposed of with a direction to the Insurer i.e. New India Assurance Co. Ltd. to deposit the consolidated sum of Rs.5,50,000/- (Five lakhs fifty thousand) in MACA No.366 of 2006 and Rs.5,00,000/- (Five lakhs) in MACA No.385 of 2006 before the Tribunal within a period of two months from today; where-after the same shall be disbursed in favour of the claimants on such terms and proportion to be decided by the Tribunal.

(B.P. Routray) Judge

C.R.Biswal, Secy.

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2023 10:49:39