Punjab-Haryana High Court
Moni Devi And Ors vs Hemant Bhardwaj And Anr on 3 September, 2024
Neutral Citation No:=2024:PHHC:115703
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Reserved on: 27.08.2024
Pronounced on: 03.09.2024
I. FAO-646-2017 (O&M)
ICICI LOMBARD GENERAL INSURANCE COMPANY
. . . . APPELLANT
Vs.
SMT. MONI AND OTHERS
. . . . RESPONDENT
II. FAO-7529-2017 (O&M)
SMT. MONI DEVI AND OTHERS
. . . . APPELLANTS
Vs.
HEMANT BHARDWAJ AND ANOTHER
. . . . RESPONDENTS
CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
Present:- Mr. Rajbir Singh, Advocate,
for the applicant-appellant/Insurance Company,
in FAO-646-2017 and for respondent No.2 in FAO-7529-2017.
Mr. Sanjay Kaushal, Sr. Advocate, with
Mr. Sylvester Stephen and Mr. Ojaswini Gagneja, Advocates,
for respondents No.1 to 4/Claimants in FAO-646-2017 and
for the appellants in FAO-7529-2017.
Mr. Raman Chawla, Advocate,
for respondent No.5-Driver and owner of the offending vehicle in
FAO-646-2017 and for respondent No.1 in FAO-7529-2017.
DEEPAK GUPTA, J.
This order shall disposed of two appeals tilled above, as both of
them have arisen against same award dated 18.10.2016 passed by Ld. Motor
Accident Claims Tribunal, Jhajjar (in short 'the Tribunal').
2.1 In MACP No.103 of 2016 titled 'Smt. Moni and others Vs. Hemant
Bhardwaj and others' filed under Section 166 of the Motor Vehicles Act,
1 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
compensation of ₹79,15,184/- has been awarded by the Tribunal on account of
death of one Vijaypal, an ITBP Constable, against the driver-cum-owner &
insurer of Swift car bearing Registration No.DL-13CA-8486.
2.2 Insurer of the car has filed FAO-646-2017 alleging that involvement
of the car No.DL-13-CA-8486 in causing the accident is not proved and in fact, it
was a hit & run case and that the claimants have filed the claim petition in
collusion with the driver-cum-owner of the vehicle, so as to extort the money
from the insurance company. On the other hands, the claimants have filed
separate FAO-7529-2017 seeking enhancement in compensation amount.
3. Trial Court record was called and with the assistance provided by
counsels for both the filed, the same has been perused.
4.1 As per the case pleaded by the claimants, on 06.02.2016, Vijaypal
(since deceased) was going to his duty on his Motor Cycle No.HR-14F-8469,
followed by his brother Satpal on a separate motorcycle. At about 5.15 AM, as
Vijaypal reached in the area of village Badli while driving his motorcycle at
moderate speed & correct side of the road and was crossing the chowk of
Gurgaon road, the offending car bearing registration No.DL-13CA-8486 came at
very high speed, being driven rashly and negligently by respondent No.1 and hit
the motorcycle of Vijaypal directly. Vijaypal sustained multiple grievous injuries.
Respondent No.1 i.e. driver-cum-owner of the offending vehicle fled away from
the spot along with his vehicle. Satpal, the brother of Vijaypal along with
Sandeep son of Rajpal resident of village Badli and other passerby brought
Vijaypal to General Hospital, Jhajjar, whereas, he was declared dead. It was
further claimed in the petition that Sandeep, the eyewitness had noted down
the registration number of the offending car and also saw respondent No.1. It
was alleged that accident had taken place due to sole rash and negligent driving
of respondent No.1. The income and age of the deceased was also disclosed in
the petition and compensation of ₹60 lakh was claimed. Insurer of the vehicle
was impleaded as respondent N: 2.
4.2 The respondent No.1 i.e. driver-cum-owner of the offending car in
his written statement alleged that a false FIR had been lodged against him in
collusion with the police and in fact, there was no fault on his part in causing the
2 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
accident, as it was caused due to own negligence of the deceased. It was further
pleaded that he was having a valid and effective driving license to drive the car.
The car was duly insured with respondent No.2 and so, in case the Tribunal
comes to the conclusion that petitioners are entitled for any compensation, then
it is the insurance company/respondent No.2, who is liable to pay the same.
4.3 The Respondent N: 2 - insurance company in its written statement
raised some preliminary objections. On merits, it pointed out that FIR was
lodged on the date of accident itself against unknown driver of an unknown
vehicle and so, there was great probability of implantation of the vehicle in
collusion with the respondent No.1 and the police. It was further alleged that
there was no eye-witness to the alleged accident and that offending vehicle had
been later on planted. Further alleging the claimed amount to be highly
exorbitant and without any basis, prayer was made for dismissal of the petition.
4.4 Necessary issues were framed including the issue No.1 on the point
of negligence.
4.5 The Tribunal by taking into account the evidence produced by the
parties, decided the issue of negligence in favour of the claimants by holding
that accident took place due to rash and negligent driving of respondent No.1
while driving car No.DL-13CA-8486 and then went on to assess the
compensation.
5.1 Assailing the finding of the Tribunal on issue No.1 pertaining to
negligence, it is contended by ld. counsel for the appellant of FAO-646-2017 i.e.
the insurance company that though the FIR was lodged on the date of accident
itself i.e. 06.02.2016, but it was lodged by Satpal, the brother of deceased
against unknown driver of an unknown vehicle. It is pointed out that in the FIR,
there is no reference of Sandeep son of Rajpal, the alleged eyewitness. Neither
the statement of said Sandeep son of Rajpal was recorded by the Police nor did
he approach the police to get his statement recorded. It is further pointed out
that as per the newspaper cutting mark 'A', the accident was caused by an
unknown vehicle at about 5.15 AM and that dead body kept lying on the road
for about 1½ hour and it is the passersby, who informed the Police and then the
body was taken to the Hospital. In this regard, ld. counsel has also drawn
3 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
attention towards Ex. R2, as proved by an official of the Govt. Hospital, Jhajjar,
who proved that dead body was brought to the Hospital at 8.10 AM, which
contradicts the statement of PW2 Satpal.
5.2 Ld. counsel then pointed out towards the final report under
Section 173 CrPC Ex.P9, as per which respondent No.1 Hemant was arrested on
16.04.2016 i.e. more than two months after the date of accident and on the
same date i.e. 16.04.2016, the alleged offending car was taken into possession
vide recovery memo Ex.P11 /Ex.R6. Ld. counsel contends that had the
registration number of the offending car was informed to the police on the date
of accident or immediately thereafter, the same must have been taken into
possession accordingly but the same was taken into possession after more than
2 months of the accident.
5.3. Apart from above, the appellant - Insurance Company has also
moved an application (CM-5700-CII-2024) under Order 41 Rule 27 CPC to place
on record the testimony of Satpal, who appeared before SDJM, Bahadurgarh in
the criminal case titled as 'State of Haryana Vs. Hemant' arising out of the same
FIR pertaining to the accident and in which he did not depose anything against
respondent No.1 and based thereon, respondent No.1 was acquitted from the
charge. Ld. counsel sought permission to place on record the judgment of the
trial Court as Annexure A1 and that of the statement of Satpal as Annexure A2.
5.4 It is argued by ld. counsel that both the statements of Satpal i.e.
one made before the Tribunal and the other made before the Criminal Court are
on oath and both of them are completely contradictory. It is argued that in fact,
respondent No.1/driver-cum-owner was clearly colluding with the claimants and
it is because of this reason that he in his written statement impliedly admitted
the involvement of the car by denying the rash and negligence driving and later
on, the alleged eye-witness i.e. brother of the deceased obliged him by making a
somersault and denying the accident to have been caused in his presence and
further denying the involvement of respondent No.1 in the accident and thus,
helped him in getting acquittal.
5.5 By referring to United India Insurance Company Ltd. Vs. Kamla
Devi and others, 2010 (53) RCR (Civil) 651, it is argued by Ld. Counsel that both
4 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
the statements of PW Satbir, one made before the Tribunal and other before the
criminal court, being on oath, he is not worthy of credence because of material
contradictions.
5.6 Reliance is also placed upon The Oriental Insurance Co. Ltd. Vs.
Kamla and others, Law Finder doc ID # 778163 to contend that in similar
circumstances, the judgment of acquittal recorded by criminal court, during
pendency of appeal against award of Tribunal, was allowed to be taken on
record and it was held by this court that court/Tribunal cannot be regarded as
powerless to pass appropriate orders in case it is convinced that order was
wangled through fraud or misrepresentation of such a dimension, as would
affect the very basis of the claim.
5.7 By further making reference to National Insurance Company
Limited Vs. Smt. Billo Devi and others [FAO No.5613 of 2017 decided on
22.05.2018], it is argued that court/tribunal can not shut their eyes to the
friendly match between the claimants and alleged driver/owner of the vehicle,
under which driver/owner helps the claimants in getting compensation payable
by the Insurance Company; and in return, claimants ensures acquittal of the
driver by turning hostile of the complainant/eye witness.
5.8 Ld. Counsel further refers to United India Insurance Co. Ltd. and
others Vs. Gurmeet Singh and others, 2021 (4) RCR (Civil) 625 to contend that
insurance company cannot be made liable to pay compensation in cases, where
accident is either staged or insured vehicle is replaced in place of uninsured
vehicle actually involved in the accident.
5.9 With these submissions, prayer is made for setting aside the award
passed by the Tribunal and to dismiss the claim petition.
6.1 Refuting the aforesaid contentions, it is argued by ld. Senior
advocate for the claimants that as far as the issue relating to involvement of the
offending car is concerned, the respondent No.1 i.e. driver-cum-owner in his
written statement has impliedly admitted the involvement of the car, though he
denied the rash and negligent driving on his part. Ld. counsel then contends that
PW2 Satpal as well as PW3 Sandeep examined before the Tribunal had
specifically deposed that accident was caused due to rash and negligent driving
5 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
of the offending car and that despite their lengthy cross-examination, nothing
could be elicited to disbelieve them. Learned counsel further contends that PW2
Satpal in his cross-examination has clearly stated that he had noted the
incomplete number of the car, though the complete number was later on
disclosed to him by PW3 Sandeep and that he kept on visiting the police station
to initiate the investigation on the basis of information provided by him but due
to the Jat reservation agitation, the police was busy and took time in taking into
possession the offending car and arresting the respondent No.1.
6.2 Ld. Senior advocate submits further that there is no rebuttal on the
part of the respondent No.2/insurance company so as to controvert the
statement of Sandeep and Satpal. It is further argued that judgment of acquittal
recorded by the trial Court or the statement of Satpal made during the Criminal
Court, cannot be taken into consideration in the additional evidence, as the
standard of proof before the criminal Court is entirely different than the
standard of proof as is required before the Claims Tribunal.
6.3 With these submissions, ld. Senior advocate prayed for dismissal of
the appeal filed by the Insurance Company.
6.4 Reply to the application for additional evidence was also filed by
respondents-claimants and same is opposed by contending that acquittal in
criminal proceedings does not exonerate the accused from civil liability. Prayer is
accordingly made to reject the application.
7. Statement is also made by ld. Senior advocate for the claimants
that he does not press his appeal for seeking enhancement in the compensation
amount.
8. No separate submissions have been made by Ld. counsel on behalf
of the driver-cum-owner of the vehicle.
9. I have considered submissions of both the sides and have
appraised the record carefully.
10. Since statement of Satbir (Annexure A2) before criminal court was
recorded, and judgment (Annexure A1) was passed by the court of Ld. SDJM,
Bahadurgarh on 14.09.2023 i.e., after passing of the award by the Tribunal, so
these are permitted to be taken on record, as both these documents pertain to
6 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
the same accident, regarding which impugned award has been passed by the
Tribunal. CM-5700-CII-2024 is accordingly allowed.
11. The initial version of the manner of accident is reflected in the FIR
(Ex.P8). Perusal of the same would reveal that it was recorded on the basis of
statement of Satpal son of Dharampal i.e. brother of the deceased, as per which
on 06.02.2016 at about 05.15 AM, he and his brother Vijaypal started from their
house on separate motorcycles. His brother was ahead of him driving
motorcycling No.HR-14F-8469 and that he (Satpal) was behind him on separate
motor cycle. As they reached at Gurgaon Chowk Badli and his brother was
crossing the chowk, a Swift car came from the side of Badli being driven in rash
and negligent manner and gave a direct hit to the motorcycle of his brother, due
to which his brother Vijaypal sustained multiple injuries. It was further narrated
in the FIR that the car driver fled away from the spot and that due to darkness,
he (Satpal) could not notice the registration number of the offending car. With
the help of passersby, he took his brother to Government Hospital, Jhajjar,
where he was declared dead. Satpal prayed for taking necessary action against
unknown driver of the unknown vehicle.
12. The FIR also contains endorsement of Head Constable Jagdish, the
Investigating Officer of the case, made at 10:30 AM, as per which after receiving
information regarding the accident from control room, he reached Gurgaon
Chowk, where Satpal met him and got recorded the aforesaid statement and
that during that process, Satpal received information on his mobile from
Government Hospital, Jhajjar to the effect that Vijaypal had been declared
brought dead.
13. It is clear from the aforesaid narration in the FIR that the same was
lodged by Satpal i.e. brother of deceased Vijaypal, against unknown driver of an
unknown vehicle. The only description of the offending vehicle as given in the
FIR is that it was a swift car, which had come from the side of Badli chowk
Gurgaon. There is no mention of any person by the name of Sandeep son of
Rajpal to have witnessed the accident or to have helped Satpal in taking Vijaypal
to the hospital. The endorsement of Head Constable Jagdish, the Investigating
Officer of the case made below the statement of Satpal also reveal that it is at
7 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
about 10:30 AM that Satpal received information on his mobile from
Government Hospital, Jhajjar to the effect that Vijaypal had been declared
brought dead.
14. Next came the version of the manner of accident in the claim
petition, in which registration number of the offending Swift car is mentioned to
be DL-13CA-8486 and it is alleged that the same was being driven by respondent
No.1 of the petition i.e. Hemant Bhardwaj. It is further stated in the claim
petition that Vijaypal was taken to the hospital by Satpal along with Sandeep son
of Rajpal resident of village Badli and some nearby persons. It was also stated
that Sandeep, the eyewitness had noted down the registration number of the
offending car.
15. Thereafter, statement of Satpal, the author of FIR was recorded by
the Tribunal as PW2 on 24.08.2016. In his affidavit Ex.PW2/A tendered as
examination-in-chief, he supported the version as made in the claim petition.
However, certain facts disclosed by him during his cross-examination are
material, which are as under: -
It is correct that I know Sandeep and that said Sandeep son of Rajpal
never went to the police post for giving his statement.
I went to the police post several times after 06.02.2016, but did not
make any supplementary statement.
I had reached the General Hospital at about 7:00 AM. Police had
reached the spot at 10:00 AM. Police reached the hospital from the spot at
about 11:00 AM.
I was informed on telephone by the Doctor about the death of Vijaypal
at about 10:30 AM and at that time, I was getting my statement recorded in the
police post.
I had visited police post several times for expeditious investigation but
the police people were busy because of the Jat Andolan.
I had seen respondent No.1 i.e. the driver by face at the spot itself and
that police had got identified said respondent No.1 from me on 16.04.2016 at
Police post.
It is incorrect to suggest that registration number of the car was not
noted by Sandeep son of Rajpal or that he was not an eyewitness of the
8 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
accident.
16.1 At this stage itself, it is relevant to take note of the statement
(Annexure A2) made by Satbir (author of the FIR - brother of the deceased)
before the criminal court on 14.09.2023. As per this testimony, about 7 years
ago in the morning time, he and his elder brother Vijaypal were going on their
separate motorcycles from their village. His brother was a head of him. When
they reached near Badli Chowk, an unknown car hit the motorcycle of his
brother, due to which the motorcycle of his brother fell down. He (PW Satbir)
was engaged to take care of his brother and in the meantime, the car driver fled
away from the spot. He did not see the driver or the registration number of the
car. With the help of passersby, he took his brother to Govt. Hospital, Jhajjar for
treatment, where his brother died. Police reached there and recorded his
statement. Later on, he came to know that motorcycle of his brother was hit by
car No. DL-13CA-8486. This information was provided to him by a passerby, who
had seen the car at the spot. He further stated that accused present in the Court
(referring to Hemant facing trial) was not seen by him nor he was known to him
nor he can say that he was the person, who had hit the motorcycle of his
brother.
16.2 At the request of the ld. Public prosecutor, PW Satbir was declared
hostile and during his cross examination by the prosecution, he stated that he
disclosed the number of the car to the police, which he had come to know later.
He denied the suggestion that he had told the police that swift car No. DL-13CA-
8486 was being driven by accused Hemant. He further denied that he had
verified at his own about the involvement of driver Hemant. He admitted that
when police reached the hospital and his statement was recorded, he neither
disclosed the number of the car nor the name of the driver and volunteered to
explain that he was not aware about the same. He also stated that he did not
remember the name or address of the passerby, who had told him the car
number.
16.3 In this statement, made before the criminal Court, Satbir neither
disclosed that at the time of accident, Sandeep was present there, who had
9 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
helped him in taking care of his brother in shifting him to hospital nor PW Satbir
told before the criminal Court that the name of the passerby, who had told him
the registration number of the offending car was Sandeep. Perusal of the
Challan as well as the judgment (Annexure A1) would indicate that Sandeep was
not even cited as a witness by the prosecution, due to which his statement was
not recorded before the Criminal Court.
17. PW3 Sandeep during his testimony made before the Tribunal on
01.09.2016 stated that on 06.02.2016 at about 5-5:15 AM, he was going for a
morning walk from Village Badli towards bypass of the village and as he reached
near the Badli Bypass, he noticed a person named Vijaypal going on his
motorcycle at moderate speed and by following traffic rules, when a Swift car
bearing Registration No. DL-13CA-8486 came from the Badli side at very high
speed, driven rashly and negligently by respondent No.1 and hit the motorcycle
of Vijaypal, causing multiple injuries to him. He testified further that he noted
the registration number of the offending Swift car. At the time of accident,
Satpal s/o Dharampal was coming on another motorcycle behind the motorcycle
of the Vijaypal and that he (Sandeep) along with Satpal and other passerby took
care of Vijaypal, but in the meantime, respondent No.1 fled away along with
Swift car from the spot. Satpal took Vijaypal to the Government Hospital, Jhajjar,
whereas he (Sandeep) left the spot. He further deposed that later on Satpal
approached him and that he told him the registration number of the offending
car. He also stated that police never approached him to record his statement
despite the fact that he is the eyewitness of the accident. During cross-
examination, following facts were disclosed by him: -
I did not know Vijaypal deceased and Satpal.
Neither Police asked me to make the statement nor I went to the police
station.
I did not tell registration number of the Swift Car to Satpal at that time, as
he thought that Satpal might have noticed the number.
At the spot, I did not have any talk with Satpal, as we became busy in
taking care of deceased Vijaypal.
I stayed at the spot for 40-45 minutes.
10 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
My residence is at the distance of 1-1½ km from the spot of accident and
the Jhajjar Hospital is at a distance of 18-20 kms.
It is incorrect that I was pillion rider on the motorcycle of Satpal or that I
am relation of Satpal.
It is incorrect that I did not witness the accident and have been planted
later on.
18. Although, respondents examined RW1 Dr. Naveen of GH, Jhajjar, to
prove PMR Ex.P4; and RW2 Ravinder, Store Keeper of the said hospital, who
proved that on 6.2.2016, dead body of Vijaypal was brought to the hospital at
8:10 AM, but on the issue of negligence, there is no evidence on the part of
respondents in rebuttal to the evidence of claimants. So much so, respondent
No.1 i.e. driver of offending vehicle did not enter the witness box so as to
controvert the statement of PW2 Satbir & PW3 Sandeep regarding the manner
of accident. In these circumstances, an adverse inference is liable to be drawn
against the respondents that had respondent No.1-driver entered the witness
box, he could not withstand the test of cross-examination.
19. What should have been the criteria for the Claims Tribunal to
evaluate the above evidence produced by the parties on the issue of negligence.
Whether, evidence should have been scrutinized to find out that claimants were
able to prove the negligence of the offending vehicle beyond reasonable doubt
and that same was being driven by respondent N: 1 at the relevant time; or
whether, the evidence was required to be scrutinized to decide issue of
negligence on the basis of 'preponderance of probability'.
20. Let us take note of the legal position in this regard:
In Minu B. Mehta and another Vs. Balkrishna Ramchandra Nayan 1977
A.C.J. 118, it has been held by Hon'ble Supreme Court that it is incumbent
upon the claimants to prove negligence before the owner or insurance
company could be held liable for compensation because the liability of
owner of vehicle to compensate the victim is based on law of Tort.
Hon'ble Supreme Court held further that if compensation is awarded
11 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
without proof of negligence, it would lead to strange results. Further, the
concept of vicarious liability without any negligence is opposed to the
basic principles of law.
At the same time, it has been held by Hon'ble Supreme Court in Kusum
Lata Vs. Satbir 2011(2) RCR (Civil) 379 (SC) by relying upon Bimla Devi
and others v. Himachal Road Transport Corporation and others, (2009)
13 SCC 530 that it is to be kept in mind that it is well settled preposition of
law that requirement of proof in a MACT case is not so stringent as in
criminal case. In a case relating to motor accident claims, the claimants
are not required to prove the case as is required to be proved in criminal
trial. Said distinction must be kept in mind. The claimants are merely to
establish their case on the touchstone of 'preponderance of probability';
and the standard of proof 'beyond reasonable doubt' cannot be applied.
In Kamlesh and others v. Attar Singh and others 2016(1) RCR (Civil) 24,
the Hon'ble Apex Court has held that though the police has registered a
case against the driver of the vehicle and filed the charge sheet but the
same cannot be said to be conclusive.
In Chameli Devi Vs. Mukesh 2016 ACJ 27 (P&H), it has been held by this
court that the fact of driver facing trial in a criminal case in relation to the
accident and the finding arrived therein would not ipso facto establish any
negligence on the part of driver.
In Mukesh Devi Vs. Sandeep 2018 (2) RCR (Civil) 629 (P&H), it was held by
this court that in a petition filed under Section 166 of Motor Vehicles Act,
initial onus is always upon the petitioners to prove the negligence of the
offending vehicle. Mere filing of the challan against respondent no.1,
facing of the trial by him or even the conviction recorded in criminal
proceedings, cannot be sufficient to hold him responsible for causing the
accident in the absence of any evidence produced in the petition. Even the
result of criminal proceedings should not affect claim proceedings under
the Motor Vehicles Act and rather, it is to be established on the evidence
12 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
produced. Same view was taken in Ram Karan Vs. Zile Singh, 2001 (3)
RCR (Civil) (P&H) 582.
In Anguri Devi v. Lakhvinder Singh, 2017(3) PLR 86 (P&H HC), this court
held that it is settled principle of law that mere registration of the FIR and
filing of the challan by the police in the criminal case does not establish
the negligence of the driver as the Tribunal is required to act upon the
evidence adduced before it.
21. Thus, following legal principles emerge:
It is incumbent upon the claimants to prove negligence of the offending
vehicle before the owner / insurance company can be held liable for
compensation, as the liability of owner of vehicle to compensate the
victim is based on law of Tort.
Initial onus is always upon the petitioners to prove the negligence of the
offending vehicle.
The claimants are not required to prove the case as is required to be
proved in criminal trial, as the claimants are merely to establish their case
on the touchstone of 'preponderance of probability'; and the standard of
proof 'beyond reasonable doubt' cannot be applied. Thus, the
requirement of proof in a MACT case is not so stringent as in criminal
case.
Mere filing of the challan against the driver; facing of trial by him or even
the conviction recorded in criminal proceedings, cannot be sufficient to
hold him responsible for causing the accident in the absence of any
evidence produced in the petition.
The result of criminal proceedings should not affect claim proceedings
under the Motor Vehicles Act and rather, it is to be established on the
evidence produced before the Tribunal.
13 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
22. It is, thus, clear that in a claim petition under Section 166 of the
Motor Vehicles Act, 1988, standard of proof is not like criminal case i.e. beyond
reasonable doubt but still the claimants are duty bound to produce such
evidence, which would show on the basis of preponderance of probability that
the accident was caused due to rash & negligent driving of the offending vehicle
as implicated by them in the petition.
23. It is in the light of afore-said legal principles that it is required to be
seen as to whether claimants were able to prove the negligence of the offending
vehicle in the accident or not.
24. The statement of PW2 - Satbir to have witnessed the accident
caused by the offending vehicle on account of rash and negligent driving of its
driver, is supported by the testimony of another eye witness PW3-Sandeep.
Though PW2-Satbir could not notice the registration number of the offending
vehicle at the time of accident, due to which it was not disclosed to the Police at
the time of registration of the FIR but the same was told to him by PW3 -
Sandeep, as has come in the testimony of both these witnesses. The Court
cannot ignore the fact that at the time, when accident occurred, PW2-Satbir was
following his brother i.e. deceased - Vijay Pal. Immediately after the accident,
the first priority of Satbir was to take care of his injured brother and to shift him
to the hospital, rather to note down the registration number of the offending
vehicle and to take note of the fact as to who was helping him in taking care of
his brother in shifting him to the hospital. In these circumstances, in case he
could not record the presence of PW Sandeep in the FIR, the presence of
Sandeep at the time of accident as testified by him cannot be doubted. Similar
were the facts before Hon'ble Supreme Court in the case of Kusum Lata Vs.
Satbir (supra), wherein also in such circumstances, it was held that presence of
the eye witness at the spot of accident could not be doubted, merely because
his presence was not got noted in the FIR by brother of the deceased.
25. Further, no doubt it is true that offending vehicle has been taken
into custody by the Police after more than two months of the accident but due
14 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
explanation is given by PW2-Satbir to the effect that he had been visiting the
Police Station frequently so as to make expeditious investigation, but the Police
was busy because of the Jat Agitation. The said testimony is not rebutted by any
evidence on the part of the respondents. Respondents did not even examine the
Investigating Officer of the criminal case so as to refute the statement of PW2 in
this regard or to refute the claim of the petitioners regarding the involvement of
the offending vehicle, which is duly testified by PW2 & PW3. These statements
of PW2 and PW3 are further supported by the fact that after concluding the
investigation, the Police filed challan against respondent No.1 and the said
respondent No.1 faced trial, though ultimately he was acquitted of the charge by
way of judgment passed dated 14.09.2023 Annexure A1 placed on record by
counsel for the Insurance Company in the additional evidence.
26. It is also important to notice that in his written statement,
respondent No.1 i.e. driver-cum-owner of the offending vehicle has not denied
the involvement of his vehicle in the accident. He merely denied the rash and
negligent driving on his part by blaming the deceased to be himself responsible
in causing of the accident. Once the involvement of the car in the accident was
impliedly admitted by respondent No.1 and there were testimonies of PW2 and
PW3 regarding the negligence of respondent No.1 in causing the accident, it was
for respondent No.1 - driver to rebut the said evidence. However, respondent
No.1 did not dare to appear in the witness box to refute the testimony of PW2
and PW3 regarding his negligence in causing the accident. In these
circumstances, inference is required to be drawn against respondent No.1 that
had he entered the witness box, he could not face the cross-examination.
27. Further, though certain contradictions in the statements of PW2
and PW3 are pointed out by counsel for the Insurance Company, but these are
not so material so as to disbelieve the testimony of these witnesses, once their
statements are found to be materially the same regarding the involvement of
the offending car and the rash and negligent driving of respondent No.1 in
causing the accident resulting into the death of Vijay Pal.
15 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
28. It has been vehemently argued by learned counsel for the
appellant/Insurance Company that respondent No.1-owner-cum-driver of the
offending vehicle was colluding with the claimants. However, merely because
the said respondent No.1 in his written statement impliedly admitted the
involvement of his car in the accident, though denying the negligence on his
part, it does not mean that he was colluding with the claimants. No such
evidence to prove the collusion is brought on record.
29. As far as the testimony of Satbir (Annexure A2) made during
criminal trial is concerned, it is important to notice that this statement was
made by Satbir in 2023 i.e. more than seven years from the date of his testimony
before the Tribunal. Not only this, this statement (Annexure A2) is materially the
same as made before the Tribunal, except that he could not disclose the name of
passerby i.e., Sandeep, who had told him the registration number of the
offending vehicle. He specifically stated in Annexure A2 also that registration
number of the offending car as DL-13CA-8486 was told to him by a passerby and
he himself could not note the same. More importantly, during the statement of
PW Satbir during the criminal trial, he was not confronted with the statement
made by him before the Tribunal. In the absence of any confrontation to the
witness of his prior statement, no weightage can be given to the statement
made by Satbir during the criminal proceedings, which was made more than
seven years after the accident and the statement made before the Tribunal.
30. Further, no doubt that as per the statement of RW2, the dead body
of Vijay Pal was received in the hospital at 08.10 AM but it does not mean that
death was immediately informed to the brother of the deceased i.e. Satbir. As
per the testimony of PW2-Satbir, it is at about 10:30 AM that he was informed
by the doctor about the death of Vijay Pal. It is a normal practice in the hospital
that death of a patient is not immediately informed to the relatives to avoid any
shock.
31. Apart from above, it has already been noticed that as per the legal
position, the issue of rash and negligent driving is to be proved by the claimants
16 of 17
Neutral Citation No:=2024:PHHC:115703
FAO-646-2017 2024:PHHC: 115701
FAO-7529-2017 2024:PHHC: 115703
on the touch-stone of preponderance of availability and not on the standard of
beyond reasonable doubt.
32. On the face of the afore-said discussion, it is held that learned
MACT did not commit any error in coming to the conclusion that accident was
caused due to rash and negligent driving of respondent No.1, which resulted in
the death of Vijay Pal.
33. On account of entire discussion as above, it is held that there is no
merit in the appeal as filed by the Insurance Company. As already noticed that
only the issue of negligence was argued by the Insurance Company. The
assessment of compensation by the Tribunal has not been disputed before this
Court. It has already been noticed that the statement has already been made by
by the Senior counsel for the claimants withdrawing the second appeal filed by
the claimants for seeking enhancement.
34. On account of the entire discussion as above, FAO-646-2017 filed by
the Insurance Company is hereby dismissed; whereas the FAO-7529-2017 filed
by the claimants seeking enhancement is hereby dismissed as withdrawn.
A photocopy of this order be placed on the file of another
connected case.
(DEEPAK GUPTA)
03.09.2024 JUDGE
Vivek
Whether speaking/reasoned? Yes
Whether reportable? No
17 of 17
