It is indeed a sordid tale where the appellants who were hardly 4 and 2 years of age at the time of occurrence of the accident, lost their father in the motor accident and few years later the destiny robbed them of their mother and they were turned into orphans fighting to fend for themselves and lost their childhood to harsh cruelties of life. Though the accident occurred in the year 1998 but it is only when the appellants came of age and had attained sufficient maturity that the claim petition came to be filed only in the year 2010.
While filing the claim petition, the claimants had filed the certified copies of the FIR, the postmortem report and the charge-sheet to indicate that on the fateful day, an accident had occurred which resulted into death of their father Ram Prasad. In support of their case, they also examined two witnesses, namely, Ashok Kumar and Ram Babu.
It be noted that on 25.11.1998 at around 7.30 P.M. when Ram Prasad, the father of the appellants was returning to his house on a bicycle and had reached the Phulwariya bypass under Police Station Kotwali Dehat, District Balrampur at the relevant time a truck bearing number U.P. 42 C-4234 coming from the opposite direction and being driven rashly and negligently, hit Ram Prasad who received grievous injury and died on the spot. It was alleged that he was about 45 years of age and he earned Rs.10,000/- per month.
It is in respect thereto a claim petition bearing No.15 of 2010 came to be filed. The same was contested by the respondents no.1 and 2 and they took up the defence that the vehicle in question belonged to Satya Narain Singhal, the father of the respondent no.2 and that the driver of the vehicle, namely, the respondent no.3 Tiger @ Sahaj Ram had an effective driving licence. However, they denied the occurrence of the accident and it was further stated that in the criminal proceedings initiated against the driver Sahaj Ram, he had been acquitted and it was also pleaded that the truck in question was duly insured and had all the relevant papers including the licence of the driver.
The tribunal considering the evidence did not find favour with the version of the claimants and held that since the negligence of the driver of the offending truck bearing number U.P.42 C-4234 could not be established. Thus, the claim petition was dismissed.
The appellants by means of the present first appeal from order filed under Section 173 of the Motor Vehicles Act, 1988 assails the judgment and award dated 23.10.2012 passed in claim petition No.15 of 2010 whereby the motor accidents claim tribunal/Additional District Judge, Balrampur has dismissed the claim petition of the appellants.
The tribunal while discarding the evidence of the claimants held that none of the witnesses were present at the site when the accident occurred and both admittedly stated that they had heard about the accident and had rushed to the spot and when they reached, they found that Ram Prasad was dead, near his body the offending truck was also there. The police had arrived and it is thereafter on the same day, the FIR was also lodged.
Significantly, the occurrence is said to have happened at about 7.30 P.M. and the FIR was lodged on the same day i.e. 25.11.1998 at about 20.40 hours. The postmortem was conducted on the body of Ram Prasad and his age was stated to be about 45 years of age.
It is also not in dispute that in pursuance of the criminal proceedings initiated against Tiger @ Sahaj Ram. A charge-sheet was filed and he contested the criminal case. It is only on 07.02.2008 that Sahaj Ram was acquitted in the criminal proceedings. as the prosecution could not establish the case beyond reasonable doubt and therefore Sahaj Ram was acquitted only giving him the benefit of doubt. This fact has primarily prevailed in the mind of the tribunal while it considered the evidence and dismissed the claim petition.
Heard the learned counsel for the parties.
The submission of the learned counsel for the appellants is that the tribunal has been influenced simply with the fact that the driver Sahajram was acquitted in criminal proceedings and that the manner in which the evidence has been analyzed by the tribunal is not in consonance with the principles as laid down by the court in this case of Shiv Murti Singh vs. Nawab Khan reported in 2014 (32) LCD 1533.
Whereas the respondents have supported the award as no negligence could be established and thus the findings of the tribunal are just and do not require any interfere.
This Court has given its consideration to the rival submission and also perused the record.
Before adverting to the submissions of the parties, this Court notices the leading cases on the point as to what is the standard of proof required while considering the claim petition under the Motor Vehicles Act.
Time and again the Hon'ble Apex Court as well as this Court has held that the standard of proof required in a claim petition is not as high as required in the criminal cases. The claim petitions are decided on the strength of preponderance of probabilities. In this regard, the Hon'ble Apex Court in the case of Sunita & Ors. vs. Rajasthan State Road Transport Corporation & Anr., in Civil Appeal No.1665 of 2019, reported in 2019 SCC Online SC 195 wherein after considering the earlier decision of Mangla Ram vs. Oriental Insurance Company Limited & Ors., (2018) 5 SCC 656, the Hon'ble Apex Court held as under:-
"11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a postmortem report vis-a-vis the averments made in a claim petition.
14. Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.
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 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."
(emphasis supplied) The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside.
23. Following the enunciation in Bimla Devi case, this Court in Parmeshwari vs. Amir Chand1 noted that when filing of the complaint was not disputed, the decision of the Tribunal ought not to have been reversed by the High Court on the ground that nobody came from the office of the SSP to prove the complaint. The Court appreciated 7 (2011) 11 SCC 635 21 the testimony of the eyewitnesses in paras 12 & 13 and observed thus: (Parmeshwari case, SCC p. 638) "12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.
13. The other so-called reason in the High Court's order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. ..."
24. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal2, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in para 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus: (SCC pp. 458-59) "3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take 8 (1980) 3 SCC 457 special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider nofault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard."
25. In Dulcina Fernandes3, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi. In paras 8 & 9 of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta4, has been adverted to as under: (Dulcina Fernandes case, SCC p. 650) "8. In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10) ''10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.
''10. ... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.'"
In para 10 of Dulcina Fernandes, the Court opined that nonexamination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability."
A Division Bench judgment of this Court, reported in 2014 (32) LCD 1533 Shiv Murti Singh vs. Nawab Khan, also lays down similar proposition and wherein it has held as under:-
"(11) In United India Insurance Company Ltd. Vs. Shila Dutta and others (2011)10 SCC 509, a three Judges Bench of Hon'ble Supreme Court culled out certain underlying principles and propositions for deciding claim petitions under the Act. Some of them as relevant to the facts of present case are :-
1. The rules of the pleadings in principle do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo moto initiated by the Tribunal.
2. That, though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in adversarial litigation.
3. The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of the matters relevant to inquiry, to assist it in holding the enquiry.
4. The Tribunal while passing the award makes a statutory determination of compensation on the occurrence of an accident after due enquiry in accordance to the statute.
(12) In Bimla Devi and others Vs. Himachal Road Transport Corporation (2009)13 SCC 530, Hon'ble Supreme Court held that a motor accident claim petition is required to be decided by the Tribunal on the touch stone of preponderance of probability and not on the basis of proof beyond reasonable doubt.
(13) In Dulcina Fernandes and others Vs. Joaguim Xavier Cruz and another, (2013) 31 LCD 2432, Hon'ble Supreme Court following the dictum laid down by it in Shila Dutta and Bimla Devi's Cases (Supra) held that the rules of pleadings do not strictly apply to motor accident claim cases and that the plea of negligence is required to be decided by the Tribunal on the touch stone of preponderance of probability and not on the basis of proof beyond reasonable doubt."
It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.
It is this backdrop that the evidence has to be scrutinized in the present case to ascertain whether its finding of the tribunal are justified. Upon perusal of the evidence led before the tribunal it is not much in dispute that the accident did occur on 25.11.1998 Ram Prasad who was riding a bicycle was found dead and the truck in question was also apprehended at the site. The police had already arrived at the site and merely because the two witnesses examined by the claimants were not present at the actual time of the accident but had reached shortly thereafter and had clearly explained the entire actual scenario which did not give rise to much doubt regarding the occurrence of the accident.
The question whether there was any negligence of the truck driver Sahaj Ram could but be ascertained if Sahaj Ram would have contested the proceeding and would have appeared in the witness box to rebut the positive statement given by the claimants witnesses. However, Sahaj Ram evaded the proceedings and did not appear. Neither the insurance company examined Sahaj Ram as the witness and merely by filing a copy of the judgment passed in the criminal case dated 0702.2008 wherein Sahaj Ram was acquitted would not make it obligatory for the claims tribunal to hold that the driver was not negligent. A person facing trial for being convicted under the Indian Penal Code for an offence of rash and negligent driving, the commission of offence must be established beyond reasonable doubt and that the person guilty has committed the offence but in case if he is giving the benefit of doubt and is acquitted from the criminal charges then it does not ipso facto give rise to a presumption that the said driver was not negligent for the accident under the Motor Vehicles Act.
Another recent judgment of the Apex Court of Vimla Devi and others Vs. National Insurance Company Limited and others 2019 (37) LCD page 333 considering the manner in which claim petitions have to be decided, the facts of which are similar to the present case has held as under:-
"16. At the outset, we may reiterate as has been consistently said by this Court in a series of cases that the Act is a beneficial piece of legislation enacted to give solace to the victims of the motor accident who suffer bodily injury or die untimely. The Act is designed in a manner, which relieves the victims from ensuring strict compliance provided in law, which are otherwise applicable to the suits and other proceedings while prosecuting the claim petition filed under the Act for claiming compensation for the loss sustained by them in the accident.
17. Section 158 of the Act casts a duty on a person driving a motor vehicle to produce certain certificates, driving licence and permit on being required by a police officer to do so in relation to the use of the vehicle. Subsection (6), which was added by way of amendment in 1994 to Section 158 casts a duty on the officer incharge of the police station to forward a copy of the information (FIR)/report regarding any accident involving death or bodily injury to any person within 30 days from the date of information to the Claim Tribunal having jurisdiction and also send one copy to the concerned insurer. This subsection also casts a duty on the owner of the offending vehicle, if a copy of the information is made available to him, to forward the same to the Claims Tribunal and the insurer of the vehicle.
18. The Claims Tribunal is empowered to treat the report of the accident on its receipt as if it is an application made by the claimant for award of the compensation to him under the Act by virtue of Section 166 (4) of the Act and thus has jurisdiction to decide such application on merits in accordance with law.
19. The object of Section 158(6) read with Section 166(4) of the Act is essentially to reduce the period of pendency of claim case and quicken the process of determination of compensation amount by making it mandatory for registration of motor accident claim within one month from the date of receipt of FIR of the accident without the claimants having to file a claim petition. (See Jai Prakash vs. National Insurance Co. Ltd., 2010 (2) SCC 607)."
Thus applying the principal as enunciated by the Apex Court in the case of Vimla Devi (supra) it would be seen that the claims tribunal committed an error in ignoring the weighty evidence of two witnesses and their account of the accident which corroborated with the facts as contained in the FIR.
On the other hand, there was no witness to contradict their version and the best person who could be examined was Sahaj Ram himself who deliberately stayed away from entering the witness box. Even in the cross-examination of the two witnesses, namely, Ashok Kumar and Ram Babu there was no statement which could cast a doubt over their testimony in so far as the factual foundation of the facts and occurrence of the accident is concerned.
Moreover the element of negligence has to be considered in a pragmative manner attendant of prevailing circumstances.
In this regard it will be noticed that ''negligence' has been defined as under:-
"9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p. 3), as follows:
"1. General principles of the law of negligence.--Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent, although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two."
"Negligence in common parlance means and implies failure to exercise due care expected from a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something; in short, it is want of attention and doing of something which is prudent and a reasonable man would not do (vide Black's Law Dictionary).
Though sometimes, the word 'inadvertence' stands and is used as a synonym to negligence, but in effect negligence represents a state of mind which, however, is much serious in nature than mere inadvertence. There is thus existing a differentiation between the two expression whereas inadvertence is a milder form of negligence, 'negligence' by itself means and implies a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow."
The Apex Court has interpreted the word ''negligence' as under:-
In the case of Machindranath Kernath Kasar vs D.S. Mylarappa & Ors. reported in (2008) 13 SCC 198, the Apex Court has held as under:-
"27. The Motor Vehicles Act was enacted to consolidate and amend the law relating to motor vehicles. When a law is enacted to consolidate and amend the law, the Legislature not only takes into consideration the law as it has then been existing but also the law which was prevailing prior thereto. A suit for damages arises out of a tortuous action. For the purpose of such an action, although, there is no statutory definition of negligence, ordinarily, it would mean omission of duty caused either by omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a reasonable or prudent man would not do. See Municipal Corporation of Greater Bombay Vs. Laxman Iyer and Another [(2003) 8 SCC 731, para 6.] "
In the case of Ravi Kapur Vs. State of Rajasthan reported in (2012) 9 SCC 284, the Apex Court has held as under:-
"13.. ''Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.
14. The Court has to adopt another parameter, i.e., ''reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record."
In view of the above, this Court is of the considered view that the tribunal misdirected itself and was swayed by irrelevant consideration while assessing the evidence and in view of the principles laid down by the Apex Court in the case of Sunita and others (supra) and Bimla Devi (supra) the finding of the tribunal on issue no.1 cannot be sustained and is consequently set aside. It is found that the accident occurred on 25.11.1998 on account of rash and negligent driving of truck number UP-42 C-4234 which caused death of Ram Prasad.
Since the finding on issue nos.2 and 3 regarding the truck being duly insured and the driver having a valid an effective driving licence coupled with the finding given by the tribunal considering the income of the deceased Ram Prasad to be Rs.2000/- per month and his age being 45 years, as corroborated from the postmortem report, is not disputed thus under the circumstances that the accident is of the year 1998 and the appeal has also been pending before this Court since 2012, it would be appropriate for this Court to redetermine the compensation rather than to remit the matter.
Since the finding on issue no.1 has been reversed by this Court and in so far as the age and income of the deceased is concerned, there is no dispute consequently this court redetermines the compensation as under:-
Income Rs.2000 Add : Future Prospect @ 25% Income after deduction of 1/3 Rs.1670 (rounded off) Age 45 Multiplier 14 Thus compensation payable:- Rs.1670X12X14= Rs.2,80,560/- Add :- Funeral Expenses Rs.10,000 Add:-Parental Consortium (two claimants) Rs.80,000 Add :- Loss of Estate Rs.10,000 The total compensation payable shall be Rs.3,80,560/- alongwith interest @ 6% per annum from the date of application till payment. Thus the claimants shall be entitled to a sum of Rs.3,80,560/- alongwith 6% interest from the date of the application till the date of the actual payment to be paid by the respondent no.1 within a period of 8 weeks from the date of this judgment.
In view of the above, this first appeal from order stands allowed and the award dated 23.10.2012 passed by Motor Accident Claims Tribunal/Additional District Judge, Balrampur in Claim Petition No.15 of 2010 is set aside and the claim petition is allowed to the extent of Rs.3,80,560/= alongwith 6% interest per annum as provided in this judgment. There shall be no order as to costs.
The record of the lower court shall be remitted to the tribunal concerned within a period of four weeks.
Order Date :- February 27, 2019/ank/-