Reserved
Case :- FIRST APPEAL FROM ORDER No. - 1466 of 2009
Appellant :- Smt. Pushpa And Another
Respondent :- Ram Devi And Another
Counsel for Appellant :- Anju Shukla,Nigamendra Shukla Counsel for Respondent :- Radhey Shyam,Mohammad Farooque Ansari
Hon'ble Subhash Chandra Sharma,J.
1. Heard Sri Nigamendra Shukla, learned counsel for the appellants as well as Mr. Mohammad Farooque Ansari, learned counsel for the respondent no.2- Insurance Company.
2. This appeal under Section 173 of Motor Vehicle Act has been filed by the claimants/appellants challenging the judgment and order dated 04.02.2009 passed by Additional District Judge/M.A.C.T., Court No.8 Bulandshahar in M.A.C. No.18/2004 by which claim petition of claimants/appellants has been dismissed.
3. Facts in brief are that an application under Section 166 of Motor Vehicle Act was filed by the appellants seeking compensation to the tune of Rs.17,55,000/- with 12% interest from the date of institution of application.
4. On 06.12.2003 at about 7:45 P.M. deceased Dheeraj son of appellant was returning to his home from Delhi by motor cycle bearing no. DL 7SS 5240 and reached near police outpost Sikandrabad, Bulandshahr, all of a sudden TATA 407 U.P. 81 F 5154 driven by its driver rashly and negligently came from the side of Bulandshahr and collided with the motor cycle of the deceased in which he got injuries and died on the spot. An F.I.R. in this regard was lodged on 07.12.2003 at about 9:40 P.M. as Crime No.307/2003 under Sections 289, 304A & 427 I.P.C. and post mortem on the dead body of the deceased was done at mortuary Bulandshahr. At the time of accident, age of the deceased was about 22 years and he was working as an Engineer at M/s Engineers and Consultant, Delhi drawing Rs.7500/- per month.
5. Notice on respondent no.1 was served but none appeared on her behalf as a result ex-parte hearing was made against her. Respondent no.2 filed W.S. denying the facts mentioned in the claim application.
6. The tribunal on the basis of pleadings and after appreciation of evidence brought on record by the respective parties both oral and documentary, has held that appellants failed to prove that on 06.12.2003 at about 7:45 P.M. on Sikandrabad, Bulandshahr road near village Bilsuri the driver of TATA 407 U.P. 81 F 5154 dashed the motor cycle driven by the deceased while causing injuries to him as a result he died and also observed that the testimony of PW-2 Purushottam said to be eye-wintess of the accident is not reliable and other eye-witness Jitendra Sharma has not been examined.
7. The tribunal recorded the said finding on the basis of oral testimony of PW-2 Purushottam who was eye-witness of the accident, PW-1 Vedram who is not eye-witness and the final report submitted after investigation of the case.
8. Learned counsel for the appellants submits that learned tribunal has not considered the evidence on record and the fact that deceased Dheeraj Kumar died in an accident caused by the driver of TATA 407 bearing no. U.P. 81 F 5154 while driving it rashly and negligently when deceased was coming by the motor cycle on Sikandrabad, Bulandshahr Road near village Bilsuri. The F.I.R. was lodged on 07.12.2003 and affidavits regarding the fact of accident were given to the police by the witnesses disclosing the detail of the vehicle causing accident but appellants did not conducted the investigation properly and submitted final report which was rejected by the court concerned and sent back to the police for further investigation even then the statements of witnesses were not recorded by the Investigating Officer and final report was submitted again. PW-2 Purushottam was an eye-witness who told the detail of the accident before the tribunal but on the basis of minor inconsistencies learned tribunal has wrongly dismissed the petition with observation that Jitendra Sharma and other eye-witnesses have not been examined, which is against the facts and evidence on record.
9. Learned counsel for the respondents opposed the submission made by learned counsel for the appellants and argued that in this case an F.I.R. was lodged against unknown person. PW-2 Purushottam did not disclose the fact of accident before any person except the claimant. He did not lodge the F.I.R. or informed the appellants about the accident. Other eye-witness Jitendra Sharma was not examined by the appellant before the tribunal. The testimony of PW-2 Purshottam was inconsistent about the facts of accident that was the reason learned tribunal disbelieved it. After investigation final report was submitted by the police even after making further investigation again final report was submitted. The affidavits given by the witnesses were well considered during investigation. It is further argued that after 6-7 months of the occurrence affidavits are said to have been sent to S.S.P. By registered post but no any postal receipt was filed before the tribunal to substantiate this fact. This story of filing affidavits was concocted and for the purpose of obtaining award from the tribunal. All these facts were taken into consideration by the tribunal while passing the judgment and order dated 04.02.2009. There is no evidence on record to show that the accident took place in the way as narrated by the appellants, therefore, the judgment and order passed by learned tribunal cannot be said to be perverse, against the facts and evidence on record.
10. I have considered the arguments advanced on behalf of learned counsel for the parties and perused the record.
11. At the very outset, it is noteworthy that the award of claim under M.V. Act is based on welfare legislation and it is not necessary that in every case F.I.R. has to be registered. Mere registration of an F.I.R. by police against the driver of an unknown vehicle cannot be a ground for throwing away the claimants case. Evidence recorded by the tribunal to be given weightage over contents of F.I.R. in case of contradiction.
12. In the petition, it has been stated by the appellants that when deceased Dheeraj Kumar was returning to his village by motorcycle bearing no. DL 7 SS 5240 and reached near village Bilsuri police outpost on SikaAligarhndrabad, Bulandshahr G.T. Road at about 7:45 P.M., he was dashed by Tata 407 bearing no. UP 81 F 5154 driven rashly and negligently by its driver causing injuries to him in which he died on the spot. On 07.12.2003 at about 9:40 P.M. F.I.R. was lodged against unknown as Crime No.307/2003 under Sections 304A, 427 I.P.C. Respondent has denied the facts in his written statement and stated that no any number of vehicle involved in the accident has been mentioned in the F.I.R. and also accident took place on account of rash and negligent driving of the vehicle bearing no. UP 81 F 5154 but it was a result of rash and negligent driving of deceased himself.
13. Appellant Vedram was examined as PW-1 but he is not eye- witness of the said accident. He has also admitted this fact in his examination-in-chief and stated during cross examination that he got information of the accident after two and a half hours later and went on the spot with other people next day morning. He has also not disclosed about the source of information received by him.
F.I.R. was lodged by Arun Kumar who was also not eye-witness. After investigation final report was submitted by the police concluding that vehicle involved in accident could not be found out, therefore, investigation was closed. In this way, the testimony of PW-1 Vedram and the result of investigation is of no help to the claim of the appellants.
14. Several affidavits including the affidavits of appellant Vedram and eye-witness Purshottam were submitted to the police but the tribunal cannot act on the basis of affidavits submitted before the police. Police report can be taken recourse in support of the other evidence on record. Now the oral testimony of PW-2 Purshottam remains on record on the basis of which conclusion is to be drawn as to whether accident took place on 06.12.2003 in which deceased Dheeraj Kumar while riding on the motorcycle was dashed by TATA 407 bearing no. UP 81 F 5154. Other witness Jitendra Sharma has not been examined before the tribunal on behalf of the appellants.
15. So far as reliability of testimony of PW-2 Purshottam is concerned, it will be expedient to examine his testimony. During his examination-in-chief the witness has stated that on 06.12.2003 at about 7:30 to 7:45 P.M. in the night near village Bilsuri police outpost Sikandrabad accident took place. One motorcyclist reached near to police outpost meanwhile TATA 407 bearing no. UP 81 F 5154 driven rashly and negligently came from the side of Bulandshahr and dashed the motorcycle on the roadside. He saw the accident and also identified the number of TATA 407 after a while two constables came on the spot who asked him about the accident. He told them the number of TATA 407. During cross examination this witness has disclosed that at the time of accident he was going on foot and also stated that police came on the spot after half an hour. He did not give any information about the accident at the police outpost. He gave affidavit to S.S.P. After 6-7 months from the date of accident.
16. The learned tribunal has disbelieved the testimony of Purshottam on the basis that as to how father and brother of deceased reached to Purshottam and how they came to know that he has seen the incident. Purshottam never said that he knew deceased and the petitioners. He also not lodged the F.I.R. and did not go to police station but police took dead body from the place of accident. Inspite of this other eye-witness Jitendra Sharma has not been examined. But learned tribunal has not taken into consideration the fact that informant Arun Kumar gave an application to S.S.P. On 15.12.2003 in which he mentioned the names of Purshottam and Jitendra Kumar as eye-witness of incident. When F.R. was filed by police, he moved protest application on which order for further investigation was made. Informant submitted affidavits of witnesses before S.S.P. to include them in investigation but again F.R. was submitted by police which was questioned by the petitioner before the court concerned with allegation that the husband of owner of vehicle is police man, so police was not taking action against him but submitted F.R. Further on 07.09.2007 petitioner moved an application before the tribunal to summon witness Jitendra Sharma for evidence. On 13.05.2008 petitioner moved other application saying that witness Jitendra Sharma has been held up by the respondent being employed in police and also Purshottam was threatened through Sikandrabad police. It is also pertinent to note that inspite of notice respondent/owner of vehicle did not appear before the tribunal to participate in the proceedings of the case.
17. In this way, it appears that learned tribunal has adopted hyper technical approach in appreciating the evidence on record and tried to test the testimony of witnesses on the touchstone of beyond reasonable doubt whereas in motor accident cases, tribunal is not expected to adopt such hyper technical view and the testimony is to be tested on the touchstone of preponderance of probability and not the standard of proof beyond reasonable doubt.
18. Further, the Tribunal in a highly technical and cryptic manner arrived at the conclusion that the claim of the appellant is false. It needs to be emphasized that there may be some discrepancies in the evidence of the claimants/witnesses, but the Tribunal has to bear in mind that the motor accident claims are summary proceedings so as to adjudicate amount of compensation in case of an accident and that a claim under the Motor Vehicles Act has to be decided on the touchstone of preponderance of probabilities and not on the basis of proof beyond reasonable doubt.
19. In the case of Mangla Ram Vs. The Oriental Insurance Company Ltd. (2018) 5 SCC 656, it was observed that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt.
20. The Apex Court in Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186, Mangla Ram Vs. The Oriental Insurance Company Ltd. (2018) 5 SCC 656, as well as the judgments referred to in Anita Sharma and others Vs. The New India Assurance Co. Ltd. and another, 2020 0 supreme (SC) 704, has held that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in motor accident claim cases. It has further been held that it is commonplace for most people to be hesitant about being involved in legal proceedings and they do not volunteer to become witnesses.
21. Power conferred to Tribunal under Section 168 of the Motor Vehicles Act is an independent power whereby the Tribunal has been required to hold an inquiry with regard to accident and award of compensation. This should be done after providing opportunity of hearing to both parties. Even where no first information report is lodged the Tribunal has ample power to hold an inquiry and admit or reject the claim petition keeping in view the evidence on record.
22. Under U.P. Motor Vehicles Rules, it has been provided that how the Tribunal shall record evidence and deal with the case. Lodging the first information report or inquest report is not necessary. What is required for the Tribunal is that it must ascertain the involvement of the victim in the accident and genuineness of claim. In case the Tribunal is satisfied from the evidence on record that accident occurred and the victim suffered injuries then even if no first information report has been lodged and post-mortem is made available it may award the compensation.
23. Applying the said principles of law as laid down by the Hon'ble Supreme Court in the decisions relied upon herein-above, we find that the approach of the Tribunal in deciding the aforesaid claim petition was not correct and was based on surmises and conjectures and misreading of the evidence on record, as well as the judgments, which were meant for deciding the quantum of compensation.
24. Hence, the impugned judgment and award dated 04.02.2009 passed by the Tribunal is set aside. The matter is remitted to the Tribunal to decide it afresh after giving opportunity of evidence and hearing to the parties according to law.
25. Accordingly, the appeal is allowed.
Order Date :- 23rd December, 2021 Ashok Gupta (Subhash Chandra Sharma,J.)