Punjab-Haryana High Court
Sarjo Devi And Ors vs Shamsher Singh And Ors on 12 September, 2023
2023:PHHC:119043
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-235-1999 (O&M) and
Date of Decision: September 12, 2023
Sarjo Devi and others
...Appellants
VERSUS
Shamsher Singh and others
...Respondents
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Munish Kumar Garg, Mr.Tajveer Singh and
Mr.Vikas Mehra, Advocates
for the appellants.
Respondents No.1 and 3-ex parte.
Mr.R.S.Chahal, Advocate
for respondent No.2.
Mr.Aseem Aggarwal, Advocate
for respondent No.4-insurance company.
****
ARCHANA PURI, J.
The present appeal has been filed by the appellants-claimants,
thereby, assailing the judgment dated 09.10.1998 passed by learned Motor
Accident Claims Tribunal, whereby, the claim petition filed by the claimants
was dismissed.
The essential facts to be noticed are as herein given:-
That, on 14.12.1993, at about 11.30 p.m., Balwan Singh was returning
to Jind from Narnaund, while on scooter, after completion of his private
work. When he reached near village Gulkani, a Trax/Jeep bearing
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registration No.DL-5C-5884, which was being driven by respondent No.1-
Shamsher Singh, came from his back side i.e. from Hansi side, at a very high
speed. It was being driven, rashly and negligently and it hit the scooter, as a
result whereof, Balwan Singh fell down and suffered serious multiple
injuries, on his head. He was taken to Civil Hospital, Jind, where he was
declared dead. The accident was witnessed by one Ram Kumar. Krishan
Kumar, registered owner of the Trax/Jeep bearing registration No.DL-5C-
5884 and the National Insurance Company, being insurer of the offending
vehicle, were also impleaded as respondents No.1 and 2, respectively, but
however, at later stage, in pursuance of disclosure made about Krishan
Kumar to have sold the vehicle in question to Sehdev Singh s/o Mukhtiar
Singh, said Sehdev Singh was arrayed as respondent No.2-A.
In pursuance of the notice issued, respondent No.1-Shamsher
Singh made appearance and filed reply, wherein, he though admitted about
the accident to have taken place, but however, he asserted the same to have
taken place due to fault of Balwan Singh deceased, as the latter was driving
his scooter, in a rash and negligent manner. However, respondent No.2-
Krishan Kumar had asserted in reply, about himself to be not owner of
Trax/Jeep in question, on the date of accident i.e. 14.12.1993, as he had
already sold the said vehicle to one Sehdev Singh s/o Mukhtiar Singh.
Further, Sehdev Singh, the subsequent purchaser was impleaded as
respondent No.2-A on 18.05.1992 and he pleaded that the petition should be
dismissed qua him. Thereafter, he was proceeded against ex-parte.
Respondent No.3-insurance company, in fact contested the claim
petition and filed an application under Section 170(a) and (b) of the Motor
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Vehicles act, for taking over the defence of the claim, in the name of the
insured and the same was allowed. In fact, the plea taken by the insurance
company is about no accident to have taken place on 14.12.1993, with
Trax/Jeep bearing registration No.DL-5C-5884. In fact, it took the plea
about claimants to have colluded with driver and owner of the vehicle in
question, in order to get compensation.
On the basis of the evidence, coming forth, following issues
were framed:-
1. Whether Balwan Singh died as a result of injuries
sustained by him in a motor-vehicular accident on
15.12.1993 in the area of village Gulkani due to rash and
negligent driving of Trax/jeep No.DL-5C-5884 by
respondent Shamsher Singh?OPP.
2. Whether the accident took place because of fault and rash
and negligent driving of scooter No.DL-IS(T)/B-0746 by
deceased himself?OPR.
3. Whether the petitioner are the legal heirs/dependents of
deceased Balwan Singh?OPP.
4. How much the petitioners are entitled to receive as
compensation and from whom?OPP.
5. Whether respondent Shamsher Singh was not holding
valid driving licence on the date of accident?OPR-3.
6. Whether respondent Krishan Kumar is not liable for the
reason that he had sold the offending trax to respondent
No.2A, Sehdev Singh, prior to the accident?OPR-2.
7. Relief.
To so substantiate their claim, Ved Kaur, widow of deceased
stepped into witness box as PW-4. Besides deposing about her relationship
with the deceased and the avocation followed by the deceased, she also
deposed about her parents-in-law, herself as well as her children, to be
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dependent upon the income of the deceased. She also deposed about death
of her husband and that they had no source of earnings to meet the
household expenses.
Besides the aforesaid, appellants-claimants also examined PW-
1 Dr.G.D.Gupta, Medical Officer, District T.B. Office, Jind, who had proved
the post-mortem report Ex.P1.
PW-2 MHC Satpal, Police Station Sadar had deposed about
registration of FIR in the present case, which is Ex.P2 and further deposed
about challan in the said FIR, having been presented in the Court of ACJM,
Jind.
PW-3 Amar Parkash, CRC, S.P. Office, Jind, had brought the service
record of ASI Balwan Singh and deposed about his salary to be Rs.3679/-
per month, at the time of his death. He deposed about date of birth of
Balwan Singh to be 03.07.1954 and the date of superannuation from service
to be 31.07.2012. He proved the salary certificate, which is Ex.P3.
PW-5 Ram Kumar, is an eye witness to the accident in question. He
had deposed about the manner of taking place of the accident, which led to
death of Balwan Singh.
PW-6 Dharambir, deposed about Shamsher Singh, driver of the
offending vehicle, to have made extra-judicial confession before him on
15.12.1993.
Thereafter, learned counsel for the claimants, tendered into
evidence photocopy matriculation certificate of Balwan Singh Ex.P6 and
closed evidence, on behalf of the claimants.
Thereupon, learned counsel for respondent No.1-Shamsher
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Singh, had tendered into evidence, photocopies of driving licence of
Shamsher Singh Ex.R1, Registration Certificate of vehicle No.DL-5C-5884
Ex.R2 and closed the evidence, on behalf of respondent No.1.
Thereafter, learned counsel for respondent No.3 had examined RW-1
Sudesh w/o Randhir, RW-2 Bhagwan, RW-3 Har Kirat Singh RW-4 Krishan
Kumar, registered owner, RW-5 Mukhtiara and then, learned counsel for
respondent No.3, tendered into evidence, copies of jamabandis, voter lists
and pedigree-table as Ex.R3 to R7. Furthermore, also tendered into
evidence, copy of insurance policy Ex.R8, copies of mutations Ex.R9 to R12
and copy of jamabandi Ex.R13 and closed the evidence.
On appraisal of the evidence brought on record, learned
Tribunal reached the conclusion that testimony of an eye witness does not
inspire confidence and there is no reliable and probable evidence on file to
hold that Balwan Singh, died in an accident caused by Trax/Jeep bearing
registration No.DL-5C-5884, which was allegedly being driven by
respondent No.1-Shamsher Singh. Consequently, issues No.1 and 2 were
decided against the claimants and resultantly, vide impugned judgment, the
claim petition was dismissed.
Feeling aggrieved by the aforesaid dismissal of the claim
petition, the appellants-claimants have filed the present appeal.
In pursuance to the notice issued, the contesting respondents
made appearance, whereas, respondents No.1 and 3 were proceeded against
ex-parte.
I have heard learned counsel for the parties and perused the
lower Court record.
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At the very outset, learned counsel representing the appellants-
claimants had submitted that before learned Tribunal, the appellants-
claimants were required to prove their case by preponderance of
probabilities and to so substantiate the fact of accident and manner of taking
place of the same, which resulted into death of Balwan Singh, the claimants
have examined PW-5 Ram Kumar and PW-6 Dharambir. Moreover, it is
submitted that even the fact of accident, is not disputed by respondent No.1,
though, he has disputed the rashness and negligence, on his part. In fact, it is
submitted that respondent No.1-Shamsher Singh himself has not stepped
into witness box. In the light of such evidence, coming on record, it is
submitted that learned Tribunal had erroneously reached the conclusion
about the fact of accident and involvement of Trax/Jeep bearing registration
No.DL-5C-5884, to be not established.
Per contra, learned counsel representing the insurance company
vehemently contends that the appellants-claimants neither proved the
involvement of the vehicle in question nor proved the respondent No.1-
Shamsher Singh was rash and negligent in driving the insured vehicle.
Learned counsel has critically referred to the testimony of PW-5 Ram
Kumar, alleged eye witness to the accident and also made reference to
testimony of PW-6 Dharambir, to bring home his contention.
In fact, it is submitted that when the evidence, as a whole is read, it
stands amply established that it was at the maximum, a case of 'hit and run',
and the accident now is wrongly projected to have been caused by Trax/Jeep
bearing registration No.DL-5C-5884, driven by Shamsher Singh, in a rash
and negligent manner and that the same resulted into death of Balwan Singh.
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In fact, it is submitted by learned counsel for the insurance company that
learned Tribunal had appraised the evidence in correct perspective and
reached the right decision of dismissal of the claim petition and the said
conclusion, calls for no interference and as such, appeal sans merit.
During the course of arguments, reference has been made to the
judgment passed in Sunita Vs. Rajasthan State Road Transport Corporation,
AIR 2019(SC) 994, wherein, it was held by the Hon'ble Supreme Court that
in motor accident claim cases, the Tribunal is required to examine the case
on the preponderance of probabilities and should not insist upon proving the
case on strict standard of proof i.e. beyond all reasonable doubt. However,
this Court does not dispute about the manner of appraisal of the evidence, in
the motor accident claim case, as held in the aforesaid case law.
However, reference ought to be made to Section 3 of the Indian
Evidence Act, 1872, which defines the expressions, 'proved', 'disproved'
and 'not proved', as herein given:-
"Proved". -- A fact is said to be proved when, after considering
the matters before it, the Court; either believes it to exist, or
considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the
supposition that it exists.
"Disproved". -- A fact is said to be disproved when, after
considering the matters before it, the Court either believes that
it does not exist, or considers its nonexistence so probable that a
prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it does not exist.
"Not proved". -- A fact is said not to be proved when it is
neither proved nor disproved."
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A careful reading of the aforesaid three clauses indicate the degree of
certainty, which is required to treat a fact as proved. Basically, the test is
whether a prudent man, under the peculiar circumstances of the case, assume
the existence of a certain fact as true or disbelieve it. The proof of effect of
the evidence adduced, depends not upon the accuracy of the statements, but
upon the probability of their existence. As per the Indian Evidence Act,
1872, the anvil of testing "proved" "disproved" and "not proved" is the same
in both civil and criminal cases, which is that of a prudent man. The
Presiding Officer is required to test every evidence in this light before
relying upon it, in both civil and criminal proceedings.
Considering the civil and criminal cases, the difference lies only
in the standard of proof, which is higher in criminal cases i.e., the facts must
be proved beyond all reasonable doubt, but in civil cases, the party only has
to convince the Court of preponderance of probabilities in his favour.
Further, Section 101 of the Indian Evidence Act, 1872, deals
with the burden of proof, which provides that 'whosoever desires any Court
to give judgment in his favour, on the basis of certain facts, must establish
the existence of those facts. Even, Section 103 of the aforesaid Act,
provides that burden of proof of particular fact lies on the person, who
wishes the Court to believe in it.
All the aforesaid provisions, form a part of one binding thread,
which calls upon the plaintiff/claimant, an undisputed burden to establish the
foundational facts of the case and bring evidence for all the facts, which he
relies upon to convince the Court that in the mind of a reasonable man, such
facts should be believed to be true. It is only, thereupon, that the doctrine of
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preponderance of probabilities will come into picture and the Court after
being reasonably satisfied, will not demand strict proof of evidence or any
further evidence, to prove the same fact, in case of civil proceedings.
However, so far as, criminal cases are concerned, such fact may be required
to be proved/endorsed, by way of additional evidence or corroboration. In
the light of the same, the difference, therefore, lies in the probative force,
attached to the evidence and not in the test of its proof (degree of proof).
The Court in a civil trial applies a standard of proof governed
by a preponderance of probabilities. This standard is also described
sometimes, as a balance of probability or the preponderance of the evidence.
Proof of a fact depends upon the probability of its existence. The finding of
the court must be based on:
1. The test of a prudent person, who acts under the supposition that a
fact exists and;
2. In the context and circumstances of a particular case.
Thus, it is evident that the doctrine of preponderance of
probabilities of evidence, does not mean that the Civil Court/Tribunal is not
required to apply basic test that whether a particular fact is proved or not.
Even, if the standard of proof in civil cases is lower, such requirement is not
dispensed with.
In this backdrop, now adverting to the case in hand. With the
able assistance of learned counsel for the appellants-claimants, the testimony
of PW-5 Ram Kumar, an alleged eye witness to the accident, has been
appraised threadbare by learned Tribunal, in the impugned judgment.
Though, the said witness, in his examination-in-chief has stated about
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having witnessed the accident, which was caused due to rash and negligent
driving of Trax/Jeep by Shamsher Singh-respondent No.1, but however,
while facing cross-examination, certain facts have come on record, which do
not inspire about the accident, having witnessed by the said witness as
claimed. In fact, it is pertinent to mention that FIR Ex.P2 is the first version
of the accident, coming forth, which was got recorded, at the behest of
Constable Prem Singh, on 15.12.1993 at 10.30 a.m. The version given
therein, was that death had occurred, in the morning of 15.12.1993, on
account of an unknown vehicle, having struck against the scooter of Balwan
from rear side. It has been rightly observed by learned Tribunal that in other
words, as per the facts given in the FIR, it was firstly a case of 'Hit and Run'
accident and secondly, none had seen the accident taking place.
Considering this manner of the first version, coming forth, the
version, set up by PW-5 Ram Kumar about having witnessed the accident
and his conduct, soon thereafter, does not inspire confidence. Although, he
had asserted about his presence at the spot of accident, on the dark wintery
night and that driver Shamsher Singh had stopped his vehicle, soon after the
accident and disclosed his particulars, but however, the said witness had
never bothered to have taken the injured to the hospital. If he had so
stopped, then the normal human conduct required him to have escorted the
injured to the hospital. Rather, he had stated that he had instructed
Shamsher Singh, the driver of the offending vehicle, to take the injured to
the hospital, which is highly improbable. Thereafter, the said witness had
asserted himself to have left the place of accident and that he had gone to
Delhi for sale of poultry-birds. It was only on 16.12.1993, when he returned
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from Delhi and on reaching home (in village Rajthali), he came to know that
the name of the person, who had met with the accident, was ASI Balwan
Singh and that the latter had expired, on the spot, as the driver of the
Trax/Jeep did not take him to the hospital. He also claimed that thereafter,
he had gone to the police station and told the name of driver and registration
number of the Trax/Jeep. His presence at the spot i.e. Jind-Rajthali road, on
the chilly night of the month of December, has not been explained.
Furthermore, it was 'amavas' night and the number of offending vehicle,
would not have been visible to the rider of moving vehicle i.e. Ram Kumar,
who was coming on scooter from the opposite side. Otherwise also, his
testimony does not appear to be natural and probable, as nowhere the said
witness was related to the deceased or deceased Balwan Singh was never
known to him. Then, all the more, after coming back to his hometown i.e.
Rajthali, why would he, all the way, come to Jind to report to the police
station.
In the given circumstances, his testimony has been correctly appraised
by learned Tribunal and has been believed to be unnatural and unreliable.
Not only this, even PW-6 Dharambir has been examined by the
appellants-claimants before learned Tribunal, who had set up the version of
extra-judicial confession of guilt, having made by Shamsher Singh-
respondent No.1 before him on 15.12.1993 and that he had asked him to
come on the next day, but he never turned up. This also carries a ring of
falsehood, as while facing cross-examination, the said witness has not been
able to disclose about having relationship with Shamsher Singh and that why
he had not taken Shamsher Singh to the police station, at the time, when he
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made alleged confession. Why would Shamsher Singh-respondent No.1,
come forward to make extra-judicial confession, when he had slipped away
from the place of accident, while leaving the injured there. In these
circumstances, even testimony of PW-6 Dharambir, is not probable and
natural and thus, rightly concluded to be not inspiring confidence.
Furthermore, it should also be noted that it has been
categorically observed by learned Tribunal about order of acquittal having
secured by Shamsher Singh-respondent No.1, on account of Ram Kumar and
Dharambir, the aforesaid witnesses, having not stepped into witness box.
This conduct of the aforesaid witnesses, also belies to great extent, the
version of having witnessed the accident and about Shamsher Singh to have
made confession of guilt before Dharambir.
Besides the aforesaid, in view of the pedigree table Ex.R7,
coming on record, it stands established that Shamsher Singh (respondent
No.1) and Sehdev Singh (respondent No.2A) are real brothers and this fact
has also been admitted by RW-5 Mukhtiara. Although, RW-1 Sudesh, who
is wife of Randhir, younger brother of Balwan, had made an attempt to
conceal the relationship, but it becomes evident from the various witnesses
examined by the insurance company, about Sehdev Singh (alleged owner of
offending vehicle) and Shamsher Singh (driver) to be grandsons of Mauji
brother of Bhagwana, while Sudesh RW-1 is grand-daughter of Mauji. Out
of the said two respondents, Sehdev Singh did not contest the claim petition
and got himself proceeded ex-parte, while Shamsher Singh did not dispute
the factum of accident, which in itself is a pointer to the alleged collusion, at
the behest of the claimants, as so asserted by the insurance company.
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Taken as a whole, the evidence, as such, coming on record, with
regard to the fact of accident and the involvement of the Trax/Jeep bearing
registration No.DL-5C-5884 and about the same having resulted into
causing of fatal injuries to Balwan Singh, as such, do not stand established.
In the light of the same, learned Tribunal has rightly appraised the evidence,
brought on record and reached the correct conclusion, about the appellants-
claimants to have failed to prove the issues No.1 and 2 and thus, had
correctly decided the said issues, in favour of the insurance company, which
had taken over the defence of the claim, in the name of insured.
In view of the aforesaid discussion, the impugned judgment
calls for no interference and as such, the appeal sans merit and the same is
hereby dismissed.
September 12, 2023 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
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