Punjab-Haryana High Court
Surta Ram vs Gurgiant Singh And Ors on 14 November, 2024
Neutral Citation No:=2024:PHHC:152505
FAO-627-2005 (O&M)
FAO-628-2005 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
203-s
1. FAO-627-2005 (O&M)
Decided on : 14.11.2024
Surta Ram
. . . Appellant(s)
Versus
Gurgiant Singh and others
. . . Respondent(s)
2. FAO-628-2005 (O&M)
Jasmer Singh
. . . Appellant(s)
Versus
Gurgiant Singh and others
. . . Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Mr. Pritam S. Saini, Advoate and
Ms. Vamika Johar, Advocate,
for the appellants(s).
Mr. Jasmer Singh, Advocate
for respondents No.1 & 2.
Mr. Aseem Aggarwal, Advocate
for respondent No.3 - Insurance Company.
****
SANJAY VASHISTH, J. (Oral)
1. This common order shall dispose of aforementioned two
appeals i.e. FAO-627-2005 (O&M) and FAO-628-2005 (O&M), filed by the
appellants/claimants, as both the appeals are interconnected, and have arisen
out of the same and common award.
2. FAO-627-2005 has been filed by the injured - Surta Ram, by
challenging the award dated 06.10.2004, passed by the learned Motor
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Accidents Claim Tribunal, Ambala (for brevity, 'learned Tribunal'),
whereby, his claim petition bearing MACT Case No.81 (DOI 23.10.2002),
filed under Section 166 of the Motor Vehicles Act, 1988 (in short, 'MV
Act'), has been dismissed.
Another, appeal i.e. FAO-628-2005, has been filed by the
injured - Jasmer Singh, by challenging the award dated 06.10.2004, passed
by the learned Tribunal, whereby, his claim petition bearing MACT Case
No.82 (DOI 24.10.2002), filed under Section 166 of the MV Act, has also
been dismissed.
3. Before deciding the claim petition, learned Tribunal framed
following four issues, which are common in both the cases:-
"1. Whether the claimants Surta Ram and Jasmer Singh suffered
injuries due to rash and negligent driving of Bus No.UP-27-
5950 by respondent no.1? OPP
2. Whether the claimants are entitled to compensation. If so,
how much and from whom? OPP
3. Whether respondent no.1 was not holding a valid driving
licence at the time of accident. If so, its effect? OPR.3.
4. Relief."
4. Regarding issue No.3, learned Tribunal held in specific that no
evidence in support of this issue has been led by respondent No.3, onus to
prove the same was upon him. Thus, same was decided against respondent
No.3.
However, claim petitions in both the cases were dismissed on
account of deciding issue No.1 against the claimants.
5. While hearing appeal on 19.09.2024, following order was
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passed:-
"Present: Mr. Vamika Johar, Advocate for
Mr. Pritam Singh Saini, Advocate
for the appellant(s) (in both appeals).
Mr. Kamal Sharma, Advocate
for respondents No.1 & 2.
Mr. Aseem Aggarwal, Advocate
for respondent No.3 - Insurance Company (in both
appeals).
****
1. Counsel for the appellants submits that the claim
petitions (both injury cases) have been dismissed by the learned
Motor Accidents Claim Tribunal, Ambala (in short, 'Ld. Tribunal'),
primarily on the ground that the claimants after deposing before the
Tribunal, resiled from their statements before the Criminal Court,
where the respondent/driver of the offending vehicle was facing
trial in criminal case. Accordingly, both the witnesses were
declared hostile and the statements of the claimants before the
Criminal Court were taken on record by Ld. Tribunal as Ex.RA and
Ex.RB.
Considering it to be an attempt to mock the legal
system, Ld. Tribunal recorded its finding regarding dismissal of the
claim petitions.
2. While arguing in both appeals before this Court, Ms.
Vamika Johar, Advocate appearing on behalf of Mr. Pritam Singh
Saini, Advocate, submits that a due process required under the
Evidence Act, has not been followed by the Ld. Tribunal, because,
without there being any confrontation of the witnesses with their
earlier statement(s) or the subsequently made statement(s), same
cannot be taken against the interest of the witness, who is making
the statement. It is more for the reason that had the statements
given before the Criminal Court being put to the witnesses i.e.
claimants in the present appeals, there would have been a
possibility of giving some plausible explanation for making any
such statements, and therefore, being taken adversely would
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amount to violation of principles of natural justice i.e. taking notice
of the same for declining the relief, without even giving any
opportunity of hearing to the affected person.
Counsel further relies upon the order dated
22.08.2019, passed by the Coordinate Bench of this Court in FAO-
4426-2019 (O&M), titled as, "Oriental Insurance Company Ltd. vs.
Malkiat Kaur alias Malkiyat Kaur and others", wherein, the factum
of witness turning hostile before the Criminal Court was noticed,
still, claimant was held entitled for the compensation by
considering the evidence led in the claim petition, where the
claimant has to prove his case on the touchstone of the
preponderance of probabilities and not beyond the reasonable
doubt.
3. At this stage, Mr. Aseem Aggarwal, counsel for
respondent No.3 - Insurance Company, seeks an adjournment to
study the position of law.
4. List on 30.09.2024.
Photocopy of this order be placed on the file of other
connected case."
6. Continuing with the submissions, Mr. Pritam Singh Saini,
Advocate, relies upon judgment of this Court rendered in FAO-1778-2016
(O&M), titled as, "Bajaj Allianz General Insurance Company Limited vs.
Ranjit Kaur and others", decided on July 18, 2016, and also upon judgment
of the Hon'ble Apex Court rendered in Janabai wd/o Dinkarrao Ghorpade &
ors. vs. M/s I.C.I.C.I Lambord Insurance Company Ltd., 2022 LiveLaw
(SC) 666. He submits that the deposition in the criminal case or the fate of
the criminal case cannot have any impact over the jurisdiction of the Motor
Accidents Claim Tribunal for deciding the claim petition, which in fact, is to
be decided summarily in conjunction with the aims and objects of this
beneficial legislation, and as per the evidence available on record before the
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learned Tribunal.
7. On the other hand, Mr. Aseem Aggarwal, Advocate, appearing
for respondent No.3 - Insurance Company, is not in a position to controvert
the findings recorded by this Court as well as the Apex Court in the cited
judgments. However, submits that at the time of recording of statement
before the learned tribunal, the statements in the criminal case were not
available, as proceedings in regard to the statement of prosecution witnesses
in the criminal case commenced later in time i.e. after recording of the
statements of the claimants and witnesses before the learned Tribunal. Thus,
this situation did not allow the Company/respondent No.3 to exercise its
right to the earlier statement.
8. I have considered the averments addressed by both the sides and
also gone through the cited judgments.
9. Legal position regarding hostile witnesses, whether they are
claimants or witnesses in the claim petition, has already been discussed by
this Court on the previous date of hearing i.e. 19 th September, 2024 (as ibid).
In another cited judgment i.e. Bajaj Allianz General Insurance Co. Ltd.'s
case (supra), argument raised by the Insurance Company regarding the non-
involvement of the offending vehicle in the accident claiming, it to be a
manipulated version of the claimants, was rejected.
While going through the observations made by the Rajasthan
(Jaipur) High Court in the case i.e. Geeta Devi and others v. Rajesh and
Others 2011(7) R.C.R (Civil) 2097, has examined the issue where the
acquittal was on the ground of the witness turning hostile. It was held that
the Tribunal is not to be influenced by the fact that the eyewitnesses who had
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deposed before the Tribunal had turned hostile during the course of criminal
proceedings. The Tribunal is required to adjudge the case on the basis of
evidence produced before it and not on the basis of testimonies given before
the Criminal Court.
The relevant findings therein is as under:-
"6. A bare perusal of the impugned order clearly reveals
that thee are two witnesses. While A.W. 2, Satish, has been
produced as an eye- witness, NAW-2 Satish has been
produced as the person who lodged the F.I.R. before the
police. According to the learned Tribunal, while A.W. 2
Satish was produced as an eye- witness , NAW-2 Satish was
not an eyewitness . However, the learned Tribunal has relied
more upon the testimony of NAW-2, Satish, and has totally
ignored the testimony of NAW-2 Satish, and has totally
ignored that in the criminal trial, A.W. 2 Satish was not
produced as an eyewitness of the prosecution. Interestingly,
NAW-2 Satish has turned hostile before the learned Tribunal,
although he had supported the case of prosecution in the
criminal trial.
7. Surprisingly, the learned Tribunal has also overlooked
the testimony of A.W. 3, Mahaveer. The learned Tribunal is
also swayed by the fact that there was some delay in lodging
of the F.I.R. before the police. But it has ignored the fact that
after the death of Satyaveer, there was no one left in the
family except the present appellant, an old woman, who
could not have lodged the F.I.R. To say the least, the learned
Tribunal has made much out of the delay in lodging of the
F.I.R., meanwhile forgetting the fact that a woman who has
lost her son may not be in physical or mental position to
immediately lodge the F.I.R.
8. A bare perusal of impugned award also reveals that
the very approach of the learned Tribunal is misplaced.
Instead of analyzing the testimonies of A.W. 2 Satish and
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Mahaveer, the learned Tribunal is influenced by the fact that
those witnesses who were produced as an eye- witness have
turned hostile during the course of criminal proceedings
itself. It is also more influenced by the testimony of NAW 2
Satish. It is, indeed, trite to state that while the finding of a
Civil Court is binding on the Criminal Court, the finding of a
Criminal Court could not and should not influence the
decision of the Tribunal. The Tribunal is supposed to adjudge
the case on the basis of evidence produced before it and not
on the basis of testimonies given before the Criminal Court.
In this view of the matter, the award is hereby quashed and
set aside and the case is remanded back to the concerned
Tribunal. The learned Tribunal is directed to decide this case
within a period of three months from the date of receipt of
certified copy of this judgment."
Thus there is no merit in this argument of the appellant -
Insurance Company."
10. In the case of Janabai wd/o Dinakarrao Ghorpade's case
(supra), factual position, discussed by the Courts was that, with regard to the
accident, an FIR was lodged against an unknown vehicle and an unknown
driver. However, on the basis that the car was ceased and the driver Sanjay
(respondent No.3 therein) was charge-sheeted. Learned Tribunal held that
the offending vehicle i.e. Maruti car was involved in the said accident.
From the judgment above, this Court has noticed the finding
recorded by the Hon'ble Apex Court in its paragraph No.10, which says as
under:-
"10. We find 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 Vehicles Act, 1988 which is
summary in nature. There is no reason to doubt the veracity of
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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. We find that the entire approach of the High
Court is clearly not sustainable."
11. Considering all the aforementioned circumstances, and the cited
law by the appellant, this Court is of the view that that parameters for
evaluating standard of evidence in criminal case and the claim petition in
MV Act, are altogether different. It is a settled proposition of law that, in a
claim petition, claimant has to prove the pleadings on the touchstone of the
preponderance of probabilities and not beyond reasonable doubt.
On the other hand, in the criminal cases, the prosecution agency
is always required to discharge its responsibility to prove the guilt of the
accused beyond the shadow of a reasonable doubt.
12. Needless to say that in the claim petitions, only the evidence,
available before the learned Tribunal on record is to be evaluated. Evidence
which has neither been recorded by it nor has been got confronted by the
affected party, cannot be considered negatively against the other-side. The
arguments advanced by Mr. Aseem Aggarwal, Advocate, for respondent
No.3 that, at the time of recording of the statement before the learned
Tribunal, the prosecution witnesses, who are yet to depose, would not be of
much weight because under the law, still remedy is available to the affected
party to move an application for re-calling the witnesses, or to lead
additional evidence whose statement is required to be confronted with earlier
statement. However, no such efforts were made by the Insurance Company
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in the proceedings before the learned Tribunal. Merely, by placing the
statements on record either by learned Tribunal itself or by the Insurance
Company, would not be of any significance until an opportunity is afforded
to the person, who has actually given that statement in the criminal case. In
the case in hand, even the application for re-examination of the witnesses or
the additional evidence was admittedly never moved by the Insurance
Company.
13. It is not the case of the respondents that at any point of time,
during the proceedings before the learned Tribunal; any such application was
moved by them. Thus, in view of the observations recorded here-above, the
findings qua issues No.1 & 2, are hereby reversed and set-aside.
In view of the law discussed and findings recorded thereon by
this Court, learned Tribunal is required to take decision afresh.
14. The parties are directed to appear before the learned Motor
Accidents Claims Tribunal, Ambala, on 09.12.2024. Claimants and
respondents who are already present before this Court are instructed to
ensure their appearance on the aforementioned date.
The issues shall be re-evaluated by the learned Tribunal on the
basis of the evidence already available on record. However, regarding Issue
No. 2, the parties will be granted three effective opportunities to submit
additional arguments or evidence. These opportunities must be concluded
within a period of two months.
The claim petitions must be finally adjudicated within six
months from the date of appearance before the learned Tribunal.
It is clarified that the finding on Issue No. 3, already recorded
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by the learned Tribunal against the Insurance Company, shall remain final
and will not be reopened.
15. Both the appeals are disposed of accordingly.
Misc. application(s), if any, also stands disposed of.
A photocopy of this order be placed on the file of other
connected case.
(SANJAY VASHISTH)
JUDGE
November 14, 2024
J.Ram
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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