Punjab-Haryana High Court
Rachna Devi Etc vs Jagdish Chand Etc on 27 September, 2022
FAO-516-2009 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO-516 -2009 (O&M)
Reserved on: 12.09.2022
Date of Decision: 27.09.2022
Rachna Devi and others ........ Appellants
Versus
Jagdish Chand and others ......... Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present:- Mr. Rajbir Singh, Advocate for the appellants.
Mr. B.S. Rana, Advocate for respondents No.1 and 2.
Mr. Banni Thomas, Advocate
for respondent No.3-Insurance Company.
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HARKESH MANUJA, J.
Present appeal has been filed against the award dated
31.10.2008 passed by learned Motor Accident Claims Tribunal,
(Adhoc) Fast Track Court, Gurdaspur, (for short 'Tribunal'), whereby
the claim petition filed by the claimants/appellants stood dismissed.
The facts, in brief, are that on 27.07.2003, deceased Ram
Parkash was going from Pathankot to Mamoon Cantt. on Scooter
No.PB-54-5984 as a pillion rider being driven by L/Naik Joginder
Singh. Around 7.00 pm, when they reached near Nirankari Bhawan,
Near Chakki Bridge, Pathankot, one Mini Truck bearing No.HP-37-
0396, driven by respondent No.2 came from the opposite direction
and dashed their scooter in which Joginder Singh as well as
deceased-Ram Parkash suffered injuries. Later, Ram Parkash
succumbed to the injuries on 10.08.2003.
SANJAY GUPTA
2022.09.28 13:10
I attest to the accuracy and
authenticity of this order/judgment
FAO-516-2009 (O&M) [2]
Pleading the aforesaid facts, the claimants/ appellants
approached the learned Tribunal for award of compensation of the
tune of Rs.20 lacs alleging rash and negligent driving of respondent
No.2
On the other hand, the version of respondents is that
before the offending vehicle hit the scooter, the same slipped on the
road and both the riders fell down and got themselves injured and
therefore, there was no negligence on the part of respondent No.2
and accordingly the claim petition was liable to be dismissed.
Vide impugned award dated 31.01.2008, learned Tribunal
dismissed the claim petition of the appellants as it found that no one
was at fault and it could not be proved that the injuries were caused
due to the rash and negligent driving of offending vehicle being driven
by respondent No.2.
Hence, the present appeal.
Learned counsel for the appellants argues that the
learned Tribunal has committed an error while passing the impugned
award by placing reliance upon the translated statement of Ashok
Kumar alone which was reproduced in the award and on the basis of
which DDR dated 09.08.2003 was registered. He further argues that
even the testimony of AW2 -Joginder Singh who happens to be an
eye-witness and driver of the vehicle has not been taken into
consideration who has been very categoric that the accident
happened due to the rash and negligent driving of offending vehicle
being driven by respondent No.2.
SANJAY GUPTA
2022.09.28 13:10
I attest to the accuracy and
authenticity of this order/judgment
FAO-516-2009 (O&M) [3]
On the other hand, learned counsel for the respondents
argues that learned Tribunal rightly held that the accident in question
was never caused due to rash and negligent driving of offending
vehicle and for the same, he relied upon the DDR, Ex.A5 coupled
with the delay in its registration.
Having heard learned counsel for the parties and gone
through the paper-book as well as the lower Court records, I am of
the considered view that in the facts and circumstances of the
present case the learned Tribunal has not been able to appreciate the
evidence available on record in its proper perspective. Learned
Tribunal while deciding the matter has relied upon the translated
version of the DDR which has been reproduced in the award itself
and to consider the arguments raised by learned counsel for the
appellants in proper perspective, the same is again reproduced
hereunder:-
"He is working as Supplier in the military. On
27.02.2003 (sic 27.08.2003), he was going on his
Hero Honda motor-cycle to CIA Pathankot in
connection with some personal work. Two persons
were also going ahead on scooter bearing No.PB-
54-5984 towards Mamoon side. When those young
man reached NirankariBhawan, then suddenly the
scooter driven by them slipped and due to this,
scooter fell down. In the meantime, truck No.HP-37-
0396 came from the opposite side. Both the said
injured were taken in the truck to the hospital. One
person told his name as Ram Parkash No.167183
Hav. Unit No.107 Engineering Regiment. The
SANJAY GUPTA
2022.09.28 13:10
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authenticity of this order/judgment
FAO-516-2009 (O&M) [4]
second person told his name as Joginder Singh
No.1883903 L/Naik 107 in Engineering Regiment.
Both the said injured received injuries due to slip of
the scooter being driving by them. No other person
is at fault in this regard."
Learned counsel for the claimants/ appellants pointed out
that in the original version of DDR (Punjabi) dated 09.08.2003, it is
specifically mentioned that "In the meantime, truck No.HP-37-0396
came from the opposite side and hit the scooter". However, in the
translated version reproduced hereinabove, the words "and hit the
scooter" are missing. In view of the above, I am of the considered
opinion that by leaving out these words which are very crucial in the
present context, learned Tribunal has misread the evidence and its
award is based on incomplete reading of the records.
Further the award has been passed by solely relying upon
the version of DDR. Even the statement of AW2 Joginder Singh who
was an eye-witness, has not been considered.
In the present case, the claim petition has been dismissed
by the learned Tribunal on the ground that the appellants/ claimants
failed to prove that the accident in question took place on account of
rash and negligent driving of respondent No.2. The learned Tribunal
has not so seriously doubted the factum of death of Ram Parkash in
the accident dated 27.07.2003. However, the learned Tribunal has
gone wrong while disbelieving the claimants as regards the issue of
rash and negligent driving of respondent No.2on various counts
which may be thus, shortly stated - that there was delay in
SANJAY GUPTA
2022.09.28 13:10
I attest to the accuracy and
authenticity of this order/judgment
FAO-516-2009 (O&M) [5]
registration of FIR; the accident in the present case took place on
27.07.2003 whereas the FIR was got recorded on 09.08.2003;
employer of deceased did not get the FIR registered immediately;
and non-production of Ashok Kumar i.e. the author of DDR as well as
the ownership documents of scooter No.PB-54-5984, driven by
Joginder Singh taken to be fatal to the case of the claimants.
In this regard, a perusal of record as well as the facts and
circumstances, reflect a total converse position. Few most relevant
circumstances and the documents available on record, which missed
the notice of the learned Tribunal and could have changed the course
of reasoning are as follows:-
i) Perusal of Ex.A1, which is a communication dated
27.07.2003 from the Military Hospital to the SHO,
Police Station, Chakki Pull, Division No.2,
Gurdaspur, shows that the factum road accident
involving Ram Parkash was immediately conveyed
on behalf of the employer of the deceased to the
concerned Police Station and as such there was no
delay in providing information to the police and
rather it was the police authorities which did not
recorded FIR promptly.
ii) The accident in this case took place on 27.07.2003
and since then, Ram Parkash remained hospitalized
and underwent surgeries as well; however, he
unfortunately expired on 10.08.2003, as such DDR
SANJAY GUPTA
2022.09.28 13:10
I attest to the accuracy and
authenticity of this order/judgment
FAO-516-2009 (O&M) [6]
recorded on 09.08.2003 cannot be said to be
belated as the primary concern of the family was to
save the injured; rather than reporting the matter to
the police.
iii) The non-appearance of Ashok Kumar, who
happened to be author of DDR Ex.A5, cannot be
held to be fatal in the present case. Since
beginning, the case set up by the appellants was
that the deceased was travelling with one Joginder
on his Scooter. The said eye-witness, namely,
Joginder appeared as AW2 and duly supported the
factum of accident involving the negligence of
respondent No.2. Therefore, the learned Tribunal
committed an error while pressing for quantity of
evidence of evidence; rather than quality.
iv) Non-production of ownership documents of Scooter
by AW2-Joginder cannot be held to be a decisive
factor in the present case. AW2-Joginder very
categorically stated in his cross-examination that
the Scooter was owned by him. He however,
deposed that he was not in possession of any
document in this regard. Neither any suggestion
was put to Joginder to the effect that he was not the
owner of aforesaid Scooter; nor even he was put a
suggestion that he in collusion with the claimants
SANJAY GUPTA
2022.09.28 13:10
I attest to the accuracy and
authenticity of this order/judgment
FAO-516-2009 (O&M) [7]
was deposing falsely about involvement of his
scooter and also as regards the rash and negligent
driving of the offending vehicle. In the absence
thereof, the learned Tribunal committed an error
while dismissing the claim petition.
v) AW2-Joginder Singh in his examination-in-chief
gives a complete description of the accident and
rash & negligent driving of the offending vehicle in
the following manner:-
"....One Mini Truck No.HP-37-0396 which
was being driven by its Driver i.e.
respondent No.2 on a very high speed
without blowing its horn rashly and
negligently came from opposite side and
dashed his above said vehicle by coming
on the extremely wrong side of the road
into the deceased and resultantly, I as well
as the above said Ram Parkash, both fell
down on the road and sustained serious
multiple injuries on us, as a result of which
the deceased Ram Parkash died on
10.08.2003 during his treatment....."
A perusal of cross-examination of AW2 shows
that the aforesaid portion of his examination-in-chief
was never rebutted by putting him any suggestion to the
contrary and thus, amounts to be an admission
regarding the manner in which the accident took place
as described by him in his cross-examination.
SANJAY GUPTA
2022.09.28 13:10
I attest to the accuracy and
authenticity of this order/judgment
FAO-516-2009 (O&M) [8]
vi) However, more than that, once it came on record
through DDR Ex.A5 that the offending vehicle hit
the scooter and it was raining on the fateful day, it
was almost necessary for the Driver of the offending
vehicle, i.e. respondent No.2 to have appeared and
rebutted the averments of rash and negligent driving
against him. The non-appearance of respondent
No.2 as a witness also shows that he had no
courage to present himself for cross-examination
and thus, the learned Tribunal was required to draw
even an adverse inference against him on the point
of rash and negligent driving.
A cumulative perusal of the aforesaid facts and the
careful examination of the evidence available on record undoubtedly
establish that the accident in the present case took place on account
of rash and negligent driving of respondent No.2. The learned
Tribunal fell into an error of law while insisting upon proof with
mathematical certainty regarding the accident in question. The
learned Tribunal even ignored the principle of law expounded by the
Hon'ble Supreme Court in case titled as Anita Sharma Vs. New
India Assurance Company Limited, 2021 (1) RCR (Civil) 200, to
the effect that the standard of proof in motor accident claim
compensation cases has to be on the touch-stone of preponderance
of probabilities and not on the basis of proof beyond reasonable
SANJAY GUPTA
2022.09.28 13:10
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authenticity of this order/judgment
FAO-516-2009 (O&M) [9]
doubt. For reference, relevant portion from para 22 is extracted
hereunder:-
"22. Equally, we are concerned over the failure of the High
Court to be cognizant of the fact that strict principles of
evidence and standards of proof like in a criminal trial are
inapplicable in MACT claim cases. The standard of proof in
such like matters is one of preponderance of probabilities,
rather than beyond reasonable doubt. One needs to be
mindful that the approach and role of Courts while examining
evidence in accident claim cases ought not to be to find fault
with non-examination of some best eyewitnesses, as may
happen in a criminal trial; but, instead should be only to
analyze the material placed on record by the parties to
ascertain whether the claimant's version is more likely than
not true."
In view of the discussion made hereinabove and a
cumulative as well as careful perusal of the entire evidence shows
that the learned Tribunal was not justified in dismissing the claim
petition filed at the instance of appellants by holding that the accident
did not take place on account of rash and negligent driving of
respondent No.2.
Accordingly, the impugned award dated 31.10.2008
passed by learned Tribunal, is hereby set aside by holding that the
accident in question dated 27.07.2003 took place on account of rash
and negligent driving of respondent No.2. In view thereof, the matter
is remanded back to the learned Tribunal for determination of the
quantum of compensation to be awarded in favour of claimants/
appellants.
Disposed of in the aforesaid terms.
SANJAY GUPTA
2022.09.28 13:10
I attest to the accuracy and
authenticity of this order/judgment
FAO-516-2009 (O&M) [10]
Since this matter is decided in presence of counsel for the
parties, therefore, they are directed to appear before the learned
Tribunal on 11.10.2022 and it would be appreciated in case the claim
petition is decided within a period of three months thereafter,
considering the date of accident to be 27.07.2003, in this case.
Pending miscellaneous application(s) if any, shall also
stand disposed of.
September 27, 2022 ( HARKESH MANUJA )
sanjay JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
SANJAY GUPTA
2022.09.28 13:10
I attest to the accuracy and
authenticity of this order/judgment
