Rajasthan High Court - Jodhpur

Murarilal vs Ricchpal And Ors on 4 October, 2023

Bench: Madan Gopal Vyas

[2023:RJ-JD:32074]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1137/2004

Murarilal Lal S/o Sh. Shanker Lal, by caste Mundhra, resident of Jambheshwar Cloth Store, Jetsar (at present Ward No.15, Anoopgarh, District Sriganganagar)

----Appellant Versus

1. Ricchpal S/o Ladhuram, resident of Satjanda, Tehsil Raishingnagar, District Sriganganagar

2. Smt. Mulidevi W/o Sh. Indrachand, resident of Nachana, Tehsil Pokaran, District Jaisalmer, through Hanuman S/o Sh. Ramnarayan, resident of Satjanda, Tehsil Raisinghnagar, District Sriganganagar

3. The United India Insurance Company Ltd., through Branch Manager, Branch Office- National Highway No.11, Sriganganagar

----Respondent

For Appellant(s) : Mr. MC Bishnoi Mr. Kuldeep Bishnoi For Respondent(s) : Mr. Kuldeep Vaishnav Mr. Pritam Solanki

HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Judgment

DATE OF JUDGMENT 04/10/2023

The present civil misc. appeal under Section 173 of the Motor

Vehicles Act, 1988 has been preferred by the claimant-appellant

against the judgment and award dated 30.4.2004 passed by the

learned Judge, Motor Accident Claims Tribunal, Anoopgarh, District

Sriganganagar in MACT Case No.3/2002, whereby the claim

petition filed by the claimant-appellant was dismissed.

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2. Learned counsel for the claimant-appellant submits that the

learned tribunal committed error while rejecting the claim petition

as a whole. It is submitted that the learned tribunal has wrongly

decided the issue nos. 1, 2 and 3 against the claimant-appellant.

It is submitted that learned tribunal did not assess the evidence of

the claimant in right perspective and has wrongly held that the

accident did not occur due to rash and negligent driving of the

driver of the jeep (respondent no.1 herein), but due to fault of the

claimant-appellant. It is submitted that a bare perusal of the site

plan (Ex.P/3) makes it clear that the jeep was not coming from

the left side, but was coming from the center of the road which in

itself is a violation of traffic rules. Further, the injured crossed the

turning point and was just trying to come on his right side.

Learned counsel submits that even the investigating agency filed

charge-sheet against the driver of the jeep in the FIR No.367

dated 26.11.2001 lodged at Police Station Vijaynagar, District Sri

Ganganagar in relation to the present accident.

3. Learned counsel submits that while considering a petition for

compensation for death or injury in a road accident, the standard

of proof to be applied by the Motor Accident Claims Tribunal, is

that of preponderance of probabilities and not that of proof

beyond reasonable doubt as is applied in criminal cases. Thus, it

is submitted that while dismissing the claim petition, the Tribunal

has grossly erred in law. Lastly, it is prayed that the matter may

be remanded back to the learned Tribunal to be decided afresh.

4. Per contra, learned counsel appearing for the respondents

submit that the learned tribunal has not committed any illegality

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and has passed the judgment in correct perspective and the same

does not want any interference by this Court.

5. I have heard the learned counsel for the parties and have

gone through the record.

6. On perusing the charge-sheet filed by the investigating

agency against the driver of the jeep and material available on

record, this Court finds that there was negligence on part of the

driver of the jeep and on the contrary, the learned tribunal while

giving finding that there was negligence on the part of the

claimant-appellant, rejected the claim petition in its entirity.

7. The Hon'ble Supreme Court in the case of Mathew

Alexander v. Mohammed Shafi & Anr reported in 2023 LiveLaw

(SC) 531 has in para 9 held as under:

"9. Insofar as the claim petition filed by the Appellant herein is concerned, alleged negligence on the part of the driver of the tanker lorry and pickup van in causing the accident has to be proved. That is a matter which has to be considered on the basis of preponderance of the possibilities and not on the basis of proof beyond reasonable doubt. It is left to the parties in the claim petitions filed by the Appellant herein or other claimants to let in their respective evidence and the burden is on them to prove negligence on the part of the driver of the Alto car, the tanker lorry or pickup van, as the case may be, in causing the accident. In such an event, the claim petition would be considered on its own merits. It is needless to observe that if the proof of negligence on the part of the drivers of the three vehicles is not established then, in that event, the claim petition will be disposed of accordingly."

8. In the case of Mangla Ram v. Oriental Insurance

Company Ltd. reported in (2018) 5 SCC 656, the Hon'ble Apex

Court has held as under:

" 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 particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to

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establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."

9. Similarly, the Delhi High Court in the case of New India

Assurance Company Ltd Vs. Harsh Mishra & Ors passed in

MAC App. 592/2011, decided on 29.6.2015 has in paras 17 and 21

held as under:

"17. The question for consideration before me here is whether mere registration of a criminal case is enough to prove the negligence on the touchstone of preponderance of probabilities. To my mind, the answer to this question will be in negative. As stated earlier, negligence is failure to take proper care a reasonable man would have taken under the circumstances. Though it is not always necessary that an eye witness must be produced to prove negligence, every fact must be proved either by direct or indirect evidence.

18. ...

19. ...

20. ...

21. To sum up, in view of the law laid down in Oriental Insurance Company Limited v. Meena Variyal and Ors., (2007) 5 SCC 428, Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr., 1977 (2) SCC 441 and Surender Kumar Arora and Anr. v. Manoj Bisla and Ors., (2012) 4 SCC 552, there is no manner of doubt that negligence is required to be proved by the person claiming compensation under the Act and that negligence is required to be proved on the touchstone of preponderance of probabilities"

10. In view of the above, the present appeal is allowed. The

impugned judgment and award dated 30.4.2004 passed by the

learned tribunal is quashed and set aside. The matter is

remanded back to the learned tribunal to decide the claim petition

afresh in accordance with law after providing opportunity of

hearing to all the parties.

11. All the parties are directed to appear before the learned

tribunal on 16.10.2023.

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12. Office is directed to send a copy of this order to the learned

tribunal either by FAX or email.

13. Office is further directed to send the record to the learned