Hon'ble Vivek Varma,J.
(Delivered by: Hon'ble Vivek Varma, J.)
1. Heard Sri S.D. Ojha, learned counsel for the appellants, Sri Mohan Srivastava, learned counsel for respondent no. 1 i.e. Insurance Company, and Sri Sudhanshu Pandey, learned counsel for respondent no. 3 i.e. driver of the vehicle.
2. The present first appeal from order has been preferred by the claimants-appellants against the judgment and order dated 20.03.2018 passed by the Motor Accident Claims Tribunal/ Additional District Judge, Court No. 3, Ballia (hereinafter referred to as the "Tribunal") in Motor Accident Claim Petition No. 56 of 2016 (Smt. Poonam Devi and others v. Prabandhak, United India Insurance Co. and others), whereby the claim petition has been rejected.
3. It is the case of the appellants that on 10.03.2016 Sri Suraj Pratap Singh (deceased) was travelling from Azamgarh to Lucknow by Scorpio Jeep, bearing Registration No. UP60 X 2715 (hereinafter referred to as the "vehicle"), along with respondent nos. 2 and 3 and two others. The respondent no. 3- Sri Gajendra Bahadur Singh was driving the vehicle. All of a sudden a Neelgai appeared on the road. While trying to save the Neelgai, the car collided against the divider and all the passengers in the vehicle were injured. Sri Suraj Pratap Singh was taken to King George Medical College, Lucknow but he succumbed to his injuries on 10.03.2016.
4. The claimants-appellants filed a claim petition before the Tribunal seeking compensation for Rs.90,78,000/- on 11.04.2016 alleging inter alia that Suraj Pratap Singh died as a result of injuries suffered in the abovementioned accident of 10.03.2016, which occurred due to negligent driving of Gajendra Bahadur Singh, who was the driver of the vehicle, in which the deceased was travelling. The insurer of the vehicle-United India Insurance Company Limited as well as owner and driver of the vehicle were impleaded as party respondent nos. 1, 2 and 3 respectively.
5. The respondent no. 1- insurance company filed its written statement and denied the accident and the involvement of the vehicle. The insurance company asserted that the claim petition was based on incorrect facts and was liable to be rejected.
6. Following issues were framed by the Tribunal on 27.10.2016:
"1) Whether on 10-03-2016 at about 05.00 A.M. near Sursanda Petrol Pump, P.S. Masauli, district Barabanki, an accident took place due to rash and negligent driving by the driver of vehicle Scorpio No. UP60X/2715 as a result of which, Suraj Pratap Singh @ Ravi Singh sustained injuries and died? If so, its' effect?
2) Whether the driver of the offending vehicle No. UP60X/2715 was not having a valid and effective driving licence at the time of accident? If so, its' effect?
3) Whether the offending vehicle No. UP60X/2715 was not validly and effectively insured with opposite party No. 1 United India Insurance Co. Ltd.? If so, its' effect?
4) Whether the offending vehicle No. UP60X/2715 was plied according to the provisions of insurance policy?
5) To what amount of compensation, are the petitioners entitled? And from whom?"
7. Subsequently, the Tribunal vide its judgment dated 20.03.2018 considered the following points:
"1. Whether the petitioners have cause of action in the matter?
2. To what relief the petitioners are entitled for?"
8. The Tribunal while considering the aforesaid points referred to the statement of P.W.-1 Smt. Poonam Devi, who is the mother of the deceased. She deposed that the deceased was on his way to Lucknow for medical treatment when the accident occurred. During cross-examination she stated that she is not an eye witness of the occurrence and the respondent nos. 2 and 3 were present at the time of accident and the entire story was narrated by them to her. Thereafter, the Tribunal considered the cross-examination of P.W.-2 Sri Satendra Nath. It was stated by P.W.-2 Sri Satendra Nath that he along with the deceased and other friends were going to Lucknow as Suraj Pratap Singh, Nilesh and Brijesh had to purchase land at Lucknow. He deposed that he admitted the injured persons. He further stated that he did not inform the police regarding the incident.
9. The Tribunal relying upon the inconsistencies in the statements of P.W.-1 and P.W.-2 and further taking into consideration that P.W.-2 having failed to adduce any evidence that he himself was injured and further being an eye witness having not informed the police regarding the incident, discarded his evidence and came to the conclusion that the assertions of the appellants are false and consequently, rejected the claim petition.
10. Sri S.D. Ojha, learned counsel for the appellants, submits that the Tribunal vide impugned judgment rejected the claim petition of the claimants in a cryptic manner without dealing with the issues framed on 27.10.2016. He further submitted that the Tribunal was required to decide the claim petition on the touchstone of preponderance of the probabilities and not on the basis of the proof beyond reasonable doubt. In support of his submissions, Sri Ojha has placed reliance on a judgment of the Supreme Court in the case of Anita Sharma and others v. The New India Assurance Co. Ltd. and another, 2020 0 Supreme (SC) 704.
11. On the other hand, learned counsel appearing for the respondents submitted that there is no legal evidence, much less sufficient to record a finding that the vehicle was involved in the accident. The judgment of the Tribunal does not call for any interference by this Court.
12. The moot question which arises for consideration in this appeal is about the correctness of the Tribunal in discarding the evidence of P.W.-2 on the ground that he failed to inform the police regarding the incident.
13. It is not in dispute that the deceased was taken to hospital. The police must have reached the hospital as it was mentioned in the inquest report that the deceased was brought by Constable Deepak Kumar. The finding recorded by the Tribunal cannot be sustained for two reasons. Firstly, P.W.-1 was admittedly not an eye witness, her version is hearsay and cannot be relied upon; and secondly, if PW.-2 had himself received injuries, he could not have simultaneously gone to police station to lodge the first information report. The Tribunal ought not to have drawn any adverse inference against him for his failure to report the matter to the police.
14. Further, the Tribunal in a highly technical and cryptic manner arrived at the conclusion that the claim of the appellants 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 accidents 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.
15. The evidence on record shows that the father of the deceased submitted an application on 06.04.2016 to the police authorities for registration of the first information report. The Tribunal ought to have taken into consideration the police report filed under Section 173 Cr.P.C. also while arriving at a conclusion regarding the genuineness of the claim set up by the claimants-appellants.
16. It also needs to be emphasized here that the driver of the vehicle P.W-3 was also not examined by the Tribunal and as such, the approach of the Tribunal cannot be justified.
17. The claim petition ought not to have been rejected solely on the ground that P.W.-2 did not produce any evidence that he himself was injured and having failed to inform the police regarding the accident.
18. The Hon'ble Supreme Court in the case of Anita Sharma and others v. The New India Assurance Co. Ltd. and another, 2020 0 Supreme (SC) 704, has observed as follows:
"17. It is quite natural that such a person who had accompanied the injured to the hospital for immediate medical aid, could not have simultaneously gone to the police station to lodge the FIR. The High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police. Further, as the police had themselves reached the hospital upon having received information about the accident, there was perhaps no occasion for AW-3 to lodge a report once again to the police at a later stage either.
18. Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot, or the appellants-claimants' hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometers away in an altogether different State. Close to the facts of the case in hand, this Court in Parmeshwari vs. Amir Chand, (2011) 11 SCC 635, viewed that:
"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.
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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." (emphasis supplied)
19. The failure of the respondents to cross examine the solitary eye witness or confront him with their version, despite adequate opportunity, must lead to an inference of tacit admission on their part. They did not even suggest the witness that he was siding with the claimants. The High Court has failed to appreciate the legal effect of this absence of cross-examination of a crucial witness.
20. The importance of cross-examination has been elucidated on several occasions by this Court, including by a Constitution Bench in Kartar Singh vs. State of Punjab, (1994) 3 SCC 569 which laid down as follows:
"278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:
(1) to destroy or weaken the evidentiary value of the witness of his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;
and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.
279. The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimised by any false and invented evidence that may be tendered by the adversary party." (emphasis supplied)
21. Relying upon Kartar Singh (supra), in a MACT case this Court in Sunita v. Rajasthan State Road Transport Corporation, (2019) SCC Online SC 195 considered the effect of non-examination of the pillion rider as a witness in a claim petition filed by the deceased of the motorcyclist and held as follows:
"30. Clearly, the evidence given by Bhagchand withstood the respondents' scrutiny and the respondents were unable to shake his evidence. In turn, the High Court has failed to take note of the absence of cross examination of this witness by the respondents, leave alone the Tribunal's finding on the same, and instead, deliberated on the reliability of Bhagchand's (A.D.2) evidence from the viewpoint of him not being named in the list of eye witnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Court's observation [as set out in Parmeshwari (supra) and reiterated in Mangla Ram (supra)] 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. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross examination, for which opportunity was granted to the respondents by the Tribunal.
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32. The High Court has not held that the respondents were successful in challenging the witnesses' version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D.2) was cross examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondent's case, without any proper reasoning." (emphasis supplied)
22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes vs. Joaquim Xavier Cruz, (2013) 10 SCC 646 wherein this Court reiterated that:
"7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi vs. Himachal RTC [(2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101])" (emphasis supplied)
23. The observation of the High Court that the author of the FIR (as per its judgment, the owner-cum-driver) had not been examined as a witness, and hence adverse inference ought to be drawn against the appellant-claimants, is wholly misconceived and misdirected. Not only is the owner-cum-driver not the author of the FIR, but instead he is one of the contesting respondents in the Claim Petition who, along with insurance company, is an interested party with a pecuniary stake in the result of the case. If the owner-cum-driver of the car were setting up a defence plea that the accident was a result of not his but the truck driver's carelessness or rashness, then the onus was on him to step into the witness box and explain as to how the accident had taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement, further suggests that he was himself at fault. The High Court, therefore, ought not to have shifted the burden of proof.
24. Further, little reliance can be placed on the contents of the FIR (Exh.-1), and it is liable to be discarded for more than one reasons. First, the author of the FIR, that is, Praveen Kumar Aggarwal does not claim to have witnessed the accident himself. His version is hearsay and cannot be relied upon. Second, it appears from the illegible part of the FIR that the informant had some closeness with the owner-cum-driver of the car and there is thus a strong possibility that his version was influenced or at the behest of Sanjeev Kapoor. Third, the FIR was lodged two days after the accident, on 27.03.2009. The FIR recites that some of the injured including Sandeep Sharma were referred to BHU, Varanasi for treatment, even though as per the medical report this took place only on 26.03.2009, the day after the accident. Therefore the belated FIR appears to be an afterthought attempt to absolve Sanjeev Kapoor from his criminal or civil liabilities. Contrarily, the statement of AW-3 does not suffer from any evil of suspicion and is worthy of reliance. The Tribunal rightly relied upon his statement and decided issue No. 1 in favour of the claimants. The reasoning given by the High Court to disbelieve Ritesh Pandey AW-3, on the other hand, cannot sustain and is liable to be overturned. We hold accordingly."
19. The Apex Court in Vimla Devi and others v. National Insurance Company Limited and another, (2019) 2 SCC 186, Mangla Ram v. Oriental Insurance Company Ltd., (2018) 5 SCC 656, as well as the judgments referred to in Anita Sharma (supra) 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. Therefore, also we cannot concur with the view of the Tribunal. The Tribunal while dismissing the claim petition has held that there is false assertion made by the claimants. The judgments in Munna Lal Jain v. Vipin Kumar Sharma, 2016 (2) ACCD 1094, Smt. Sarla Verma v. Delhi Transport Corporation and Another, 2009 (2) ACCD 924, Vinod Shankar Shukla v. Bhoruka Logistic Pvt. Ltd., 2017 (1) DMP 232, Sumitra Kaur v. New India Assurance Co. Ltd., 2013 (1) ACCD 60, and Reliance General Insurance Co. Ltd. v. Rekha Devi, 2018 (1) ACCD 301, have been misread by the Tribunal. Just because Smt. Poonam Devi, who was not an eye witness, deposed that her son was going for medical treatment, cannot be a ground of disbelieving the case. It is an admitted position of fact that she was not an eye witness. The statements of P.W.-2 and P.W.-3 are not contradicted and they have withstood the cross-examination by the insurance company. The only difference in the statements of P.W.-1 and P.W.-2 is that P.W.-2 stated that they were going to purchase land.
20. Just because the accident was not reported by P.W.-2 cannot be a ground for dismissing the claim petition. The Tribunal ought to have considered the judgments of the Apex Court which have made it obligatory on the police officials to forward to the Claims Tribunal the accident information report. In the case of Jai Prakash v. National Insurance Company Limited, 2010 (2) GLR 1787 (SC), detailed guidelines are given and, therefore, the Tribunal ought to have considered this aspect also before rejecting the claim petition on the basis of only one minor contradiction, even though the evidence of the eye witness was unshaken. The post-mortem report, G.D. entry and the Panchanama of the place of occurrence, where the accident occurred, also showed that the death was because of involvement of a vehicle. One more aspect which required attention of the Tribunal was when the deceased was taken to hospital, there is a mention about the accidental injuries and, therefore, just because the mother, who is not an eye witness and is a rustic lady, deposed that her son was going for medical treatment, cannot be the sole ground of rejection of the claim petition. The accident occurred on 10.03.2016 and the deceased was taken to the Government Hospital by an ambulance, this fact is also proved from the evidence of P.W.-1 and 2. The respondents have not examined anybody on oath, who would shake the evidence led before the Tribunal. The number of the vehicle is mentioned. The factum that it had collided against the divider has also been mentioned. All these facts go to show that the accident occurred when the deceased was in the vehicle and the use of the vehicle is proved. The Tribunal on the basis of the surmises and conjectures without there being any concurrent evidence to disbelieve the witnesses, has dismissed the claim petition. Our view is fortified by the recent decision of the Apex Court in the case of Vimla Devi (supra) and we rely on the judgment of the Division Bench of this Court in First Appeal From Order No. 3481 of 2012 (Smt. Saroj and another v. Rajendra Singh and another), decided on 13.08.2021. Thus, the appeal has to be allowed.
21. 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.
22. Hence, the impugned judgment and award dated 20.03.2018 passed by the Tribunal is set aside. The matter is remitted to the Tribunal to consider the compensation awardable to the claimants-appellants in accordance with law as the deceased was a non-tort feaser and the accident occurred on account of the negligence of the driver of the vehicle, for which we have given our findings. As the evidence is already over and the pay-slips are before the Tribunal, the compensation as awardable in the light of the decisions of the Apex Court be granted within six weeks of receipt of the record by the Tribunal.
23. Accordingly, the appeal is allowed.
24. Let the lower court record be sent back to the Tribunal.
Order Date :- 28.09.2021 SKT/-