Loading judgment…
No AI summary yet for this case.
__________________
Whether reporters of the local papers may be allowed to see the judgment? Yes
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 123 of 2016 along with
Cross Objections No.94 of 2016
Reserved on: 20.10.2023
Date of Decision: 21st November, 2023
Oriental Insurance Company Ltd. ....Appellant Versus Smt. Ram Piyari & others
....Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? Yes For the Appellant : Dr. Lalit Kumar Sharma, Advocate. For Respondents No.1 to 4.
: Mr. Tara Singh Chauhan, Advocate. For Respondent No.5 : Mr. Sanket Sankhyan, Advocate.
Rakesh Kainthla,Judge.
The present appeal and the cross objections are directed against the Award dated 10.12.2015, passed by learned Motor Accident Claims Tribunal (in short MACT), Bilaspur, H.P.,vide which, compensation of ₹ 16,44,820/- was awarded in favour of respondents no.1 to 4 (claimants before the learned
2 MACT).(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned MACT for convenience). 2.
Briefly stated, the facts giving rise to the present appeal are that the claimants filed a claim petition before the learned MACT for seeking compensation for the death of Jai Kishan caused in a motor vehicle accident involving the vehicle bearing registration no.HP24-A-7829 being driven by respondent no.1. It was asserted that Jai Kishan was going to his home on 05.05.2012. A jeep bearing registration no. HP24-A-7829 came from Galua at a high speed. Jai Kishan signalled the driver to stop the vehicle. However, the driver could not control the vehicle and hit the deceased. He fell and sustained multiple injuries. Jai Kishan was working as a Helper in the IPH department and he was getting a salary of ₹ 16,845/-. He was an agriculturist and earned ₹4,000/- per month from agriculture. The claimants were dependent upon the earnings of Jai Kishan and have been left with no source of income after his death. The accident had occurred due to the negligence of respondent no.1. The matter was also reported to the police and an F.I.R. No. 40/12 was registered for the commission of offences punishable under Sections 279, 337
3 and 304-A of IPC in Police Station Kot-Kehloor, District Bilaspur, H.P. Respondent No. 2 had insured the vehicle. Hence, the present petition was filed for seeking compensation from the respondents jointly and severally. 3.
The petition was opposed by respondent no.1, by filing a reply, taking preliminary objection regarding the petition being false. The contents of the petition were denied on merits. It was asserted that the F.I.R. was registered against Harbans Singh and not against respondent no. 1. The police also verified on the spot that Jai Kishan had died due to the rash and negligent driving of Harbans Singh. This fact was mentioned in the inquest papers prepared by the police. A news item was published in the newspaper stating that Jai Kishan had died due to the negligence of Harbans. Subsequently, this version was changed and it was mentioned that the accident had occurred with the Jeep of respondent no.1. A false case was made against respondent no.1. The deceased never travelled in the vehicle of respondent no. 1.Therefore, it was prayed that the petition be dismissed against respondent no.1.
4 4.
Respondent No.2 filed a separate reply taking preliminary objections regarding lack of maintainability, absence of policy, and the vehicle being driven without valid registration and driving license in violation of the terms and conditions of the insurance policy. The contents of the petition were denied on merits. It was asserted that a highly exaggerated and exorbitant compensation has been sought. The claim petition was filed on false facts. Therefore, it was prayed that the petition be dismissed. 5.
No rejoinder was filed. 6.
The learned MACT framed the following issues on 20.02.2015: 1. Whether on 5.05.2012 at about 6:30 p.m. near Galua Jai Kishan died on account of rash and negligent driving of respondent No.1, owner-cum-driver of jeep bearing No. HP24A-7829? OPP 2. If issue No.1 above is proved in affirmative, whether the petitioner is entitled for compensation and if so, to what amount and from whom? OPP 3. Whether the petition is not maintainable? OPR-2 4. Whether respondent No.1 was not having a valid and effective driving licence?OPR-2 5. Whether the offending vehicle was being driven without any valid documents?OPR-2. 6. Relief.
5 7.
The parties were called upon to lead their evidence. The claimants examined Krishan Chand (PW-1), Virender Singh (PW-2), Claimant No.1, Ram Piari (PW-3), Harbans Lal (PW-4), Sanjay Kumar (PW-5) and Tarsem Singh (PW-6). The respondents examined Anoop Kumar (RW-1) and Sanjeev Kumar (RW-2). 8.
Learned MACT held that version of the petitioner that Jai Kishan had died in a motor vehicle accident was duly proved. The F.I.R. was lodged against Harbans Singh but the police found after the investigations that the accident had occurred due to the negligence of respondent no.1 and filed a chargesheet against him. The standard of proof in a motor accident claimed case is not beyond reasonable doubt but the preponderance of probability. The deceased was earning ₹ 16,845/- per month An increase of 15% was to be made towards future prospects. The deduction was made towards the personal and living expenses and after applying the multiplier of 9, the claimants were held entitled to ₹13,94,820/- towards loss of dependency.₹1,00,000/- were awarded to claimants no. 2 and 4 for the loss of love, affection, care and guidance. ₹1,00,000/- was awarded to the claimant no. 1 for the loss of consortium. An amount of ₹50,000/- was awarded
6 towards the funeral expenses. Hence, the learned MACT awarded an amount of ₹16,44,820/- alongwith interest @9% per annum from the date of institution of the petition till realization. The vehicle was duly insured with respondent no. 2 and it was liable to indemnify respondent no.1. There was no violation of the terms and conditions of the insurance policy. Hence, both the respondents were held liable jointly and severally. 9.
Being aggrieved from the award passed by learned MACT, the present appeal has been filed asserting that learned MACT passed the award based on conjectures and surmises. The claimants did not dispute the contents of F.I.R. No. 40/2012. It was specifically mentioned in the F.I.R. that Jai Kishan took liquor alongwith Ranjeet and Harbans Lal. Jai Kishan died due to the negligence of Harbans. Respondent No.1 stated on oath that no accident had taken place with his jeep. There was no evidence to show that Jai Kishan had died in an accident involving the jeep of respondent no.1 and the learned MACT erred in holding otherwise. It was mentioned in the final report that the deceased was travelling as a gratuitous passager, which was a violation of the policy. The interest was wrongly awarded @9% per annum. The increase of 15% was wrongly granted. Therefore, it was prayed
7 that the present appeal be allowed and the award passed by learned MACT be set aside. 10.
The claimants also preferred cross-objections asserting that the deceased was an agriculturist. He was earning ₹4,000/- per month. The Tribunal did not consider the income of the deceased from agriculture. The Multiplier of 9 was wrongly applied and a multiplier of 12 should have been applied. The interest should have been awarded @12% instead of 9% per annum. Hence, it was prayed that the Award passed by the learned MACT be enhanced to ₹25,00,000/-. 11.
I have heard Dr. Lalit Kumar Sharma, learned counsel for the appellant/respondent no. 2. Mr Tara Singh Chauhan, learned counsel for respondent no.1 to 4/claimants and Mr Sanket Sankhyan, learned counsel for respondent no.1/owner-cum- driver. 12.
Dr. Lalit Kumar Sharma, learned counsel for the appellant/respondent no.2 submitted that the learned MACT erred in holding that the accident had taken place with the jeep owned and driven by respondent no. 1. It was duly proved by the F.I.R. that the accident had occurred not by the Jeep but by a motorcycle
8 being driven by Harbans. The police filed a chargesheet against respondent no.1 at the instance of the claimants to enable them to get compensation from respondents no.1 and 2. The learned MACT erred in awarding the compensation of ₹50,000/- towards the funeral expenses and ₹1,00,000/- for the loss of love, affection, care and guidance to claimants no. 2 and 4 and ₹1,00,000/- to claimant for the loss of consortium. This violates the judgment of the Hon’ble Supreme Court in Sarla Verma & others vs. Delhi Transport Corporation & another (2009) 6 SCC 121,wherein the compensation for loss of consortium has been fixed as ₹40,000/-. The deductions from salary were not considered and the loss of dependency was calculated on the gross income. Therefore, he prayed that the present appeal be allowed and the Award passed by the learned MACT be set aside. 13.
Mr. Tara Singh Chauhan, learned counsel for respondents no. 1 to 4/claimants submitted that the learned MACT did not consider the agricultural income of the deceased, applied the wrong multiplier and wrongly awarded the interest @ 9%. Per annum. Hence, he prayed that the compensation be enhanced.
9 14.
Mr. Sanket Sankhyan, learned counsel for respondent no.1/owner-cum-driver submitted that the jeep owned and driven by respondent no.1 did not cause any accident and a false petition was filed against him. The vehicle was duly insured with respondent no.2 and respondent no. 2/insurer was rightly held liable to indemnify respondent no.1. Hence, he prayed that the appeal and cross-objections be dismissed. 15.
I have given considerable thought to the rival submissions at the bar and have gone through the records carefully. 16.
F.I.R. (Ext.RW-1/A)/Ext. PW-1/A reads that on 05.05.2012, the informant Ranjeet Singh and Jai Kishan (deceased) repaired the pipeline of Vijay Kumar. The informant, Jai Kishan and Vijay Kumar consumed liquor. The informant and Jai Kishan boarded the motorcycle of Harbans. The informant got down at Galua and went to his home. He came to know in the morning that Jai Kishan had died. He had injuries on his back. It appeared to the informant that Jai Kishan fell on the way due to the high speed or his clothes were trapped in the motorcycle due to which he fell. The accident had occurred due to the negligence of Harbans, the
10 driver of the motorcycle. 17.
It is apparent from the perusal of the F.I.R. that it is not based on the testimony of an eyewitness rather it is based upon the speculation made by the informant. The informant had left the motorcycle at Galua and he was not a witness of the facts, which transpired after he had got down the motorcycle. Therefore, F.I.R. cannot be used as a substantive piece of evidence to determine how the deceased (Jai Kishan) had met with an accident or whose negligence led to the accident. 18.
Harbans Lal (PW-4) stated that he was riding the motorcycle. He met Jai Kishan and Ranjeet. He dropped them at Galua and went to his home. He came to know on the next day that Jai Kishan had died. Jai Kishan was hit by a Jeep. He denied that he consumed the liquor with Jai Kishan and Ranjeet. He denied that he had gone to drop Jai Kishan at his home and Jai Kishan fell from the motorcycle on the way. 19.
Thus Harbans Lal, who was stated to have driven the motorcycle has denied on oath that his negligence led to the accident or Jai Kishan had fallen from his motorcycle. Therefore, the testimony of this witness contradicts the contents of the F.I.R.
11 20.
Sanjeev Kumar (RW-2) stated that no accident had taken place with his Jeep. Jai Kishan did not meet him on the way. He stated in his cross-examination that he came to know about the accident on the next day. He admitted that he had driven the Jeep on 05.05.2012. He denied that he had hit Jai Kishan. He admitted that Sanjay Kumar met him and enquired as to why the Jeep was parked at some distance. He admitted that he left after some time. He volunteered to say that Sanjay told him that some person had fallen from the motorcycle. 21.
Sanjay Kumar (PW-5) stated that he was going to his home in the year 2012. He found one person lying on the road. He stopped the vehicle and returned towards Galua. He told the persons present at Galua about the person lying on the road and they replied that the person must be intoxicated. They advised him to push the person aside. He pushed the person aside. The person was alive at that time. He found the Jeep of Sanjeev Kumar at some distance. He enquired from Sanjeev Kumar as to what he was doing, to which he replied that he was waiting for someone. He enquired about the person lying on the road and Sanjeev Kumar replied that he had not seen any person. He stated in his cross-examination that Ranjeet was employed in IPH and he did
12 not know the cause of death of Jai Kishan. 22.
The statement of Sanjeev Kumar clearly shows that Sanjay had met him on the date of the accident and one person was found lying on the road before meeting Sanjay Kumar. 23.
Sanjeev Kumar, admitted in his cross-examination that the police registered a case against him. A copy of the chargesheet Section 173 of Cr.P.C. (Ext.RW-2/F) shows that the deceased had died in a motor vehicle accident and the accident had occurred due to the negligence of Sanjeev Kumar. 24.
It was laid down by Kerala High Court in New India Assurance Company Ltd versus Pazhaniammal and Others 2012 ACJ 1370, that where the police had filed a charge sheet against a person, the Tribunal should accept the prima facie negligence of the person mentioned in the charge sheet and the burden will shift on the other side to prove the contrary. It was observed:- “[7] In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, such a charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This
13 consumes a lot of judicial time and the heavily overworked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist on better evidence. But as a general rule, it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act A system cannot feed itself on a regular diet of distrust of the police. Prima facie, a charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties does not accept such a charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where a charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases, such a charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. We mean to It was laid down by Hon’ble Kerala High Court in New India Assurance Company Ltd versus Pazhaniammal and Others 2012 ACJ 1370, that where the police had filed a charge sheet against a person, the Tribunal should accept the prima facie negligence of the person mentioned in the charge sheet and the burden will shift on the other side to prove the contrary. It was observed:- “[7] In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, such a charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist
14 on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily overworked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist on better evidence. But as a general rule, it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act A system cannot feed itself on a regular diet of distrust of the police. Prima facie, a charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties does not accept such a charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where a charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases, such a charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. We mean to say that on the production of such a charge sheet, the shifting of burden must take place. It is not as though we are not conscious of the dangers and pitfalls involved in such an approach. But we feel that the adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures.” 16.
This position was reiterated by the Hon’ble High Court of Kerala in National Insurance Co. Ltd. Vs Latha Devi N. and others, 2022 ACJ 2560. say that on the production of such a charge sheet, the shifting of burden must take place. It is not as though we are not conscious of the dangers and pitfalls involved in such an approach. But
15 we feel that the adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures.” 25.
This position was reiterated in National Insurance Co. Ltd. Vs Latha Devi N. and others, 2022 ACJ 2560. 26.
Therefore, the burden was upon the respondents to prove that respondent no.1 was not negligent. 27.
The version of respondent no.1 that his negligence did not lead to the accident is not acceptable. He was found near the place of the accident after one person was found lying on the road. He denied the fact that Sanjay Kumar made an enquiry from him but there is no reason to disbelieve the testimony of Sanjay Kumar. This shows that respondent no.1 is not telling the complete truth before the Court and his explanation is not acceptable. 28.
It was submitted that there is no direct evidence of the accident and the learned MACT erred in relying upon the version of the claimants. It is undisputed that the deceased had died in a motor vehicle accident. The learned MACT had rightly pointed out that the claim petition is to be decided on the preponderance of
16 probability. It was laid down by the Hon'ble Supreme Court in Sunita Versus Rajasthan State Road Transport Corporation 2019 ACJ 801 that a claim petition has to be decided on a preponderance of probability. It was observed: 31. Similarly, the issue of non-examination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. The approach in examining the evidence in accident claim cases is not to find fault with the non- examination of some “best” eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. This court, in Dulcina Fernandes (supra), faced a similar situation where the evidence of the claimant's eyewitness was discarded by the Tribunal and the respondent was acquitted in the criminal case concerning the accident. This Court, however, took the view that the material on record was prima facie sufficient to establish that the respondent was negligent. In the present case, therefore, the Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident. 29.
It was laid down by this Court in National Insurance Company Ltd. Vs Sarita Kumari 2023 (1) Shim. L.C. 131, that the Courts should be sensitive to the plight of the claimants of getting the information about the accident, which occurred at a far-off place from their residence. It was observed:-
17 “13. The claimant is the daughter of the deceased, who belongs to the State of Jharkhand and it would be extremely harsh and otherwise unwarranted to place a very strict proof of the mode and manner of the accident upon the claimant. Rather, this is a fit case where the doctrine of res ipsa loquitur needs to be applied. 14. In taking this view, I am supported by the judgment of the Hon’ble Supreme Court in N.K.V. Bros. (P.) Ltd. vs. M. Karumai Ammal and others, AIR 1980 SC 1354, more particularly, the observations contained in para-3, which read thus:- “3. Road accidents are one of the top killers in our country, especially 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. Accident tribunals must take 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 no-fault 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
18 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 the disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint a 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.” 15. The Hon’ble Supreme Court has otherwise repeatedly held that the approach of the Tribunals while dealing with such matters where it is extremely difficult to get evidence have to be sensitive enough to appreciate the turn of events at the spot or the appellant-claimants’ hardship in tracing witnesses and collecting information for an accident when they themselves were not present at the accident spot. Further, the Courts/Tribunals must be mindful of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable to MACT case as the standard of proof in such like matters is one of the preponderance of probabilities, rather than to prove beyond reasonable doubt. The Courts/Tribunals have to be mindful that the approach and role of Courts/Tribunals while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyse the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true. The Courts/Tribunals in matters of this nature are required to take a holistic view and to bear in mind that strict proof of evidence caused by a particular bus in a specific manner may not be possible to be done by the claimants. The Courts/Tribunals must take into account first the legal effect of the failure to cross- examine the crucial witnesses on crucial issues.
19 16. The Motor Vehicles Act is a benevolent piece of legislation. Certain guiding principles have evolved over the years which form the bedrock for evaluating the evidence and determining the compensation under the Motor Vehicles Act. Some of these principles may be stated thus:- (i) Tribunals are free to evolve their procedure and they are not guided strictly by the principles of the Civil Procedure Code. (ii) The test in the claim petitions is a preponderance of probabilities. The claimant is not required to prove the accident beyond doubt as required under the criminal proceedings. (Bimla Devi vs. Himachal RTC, (2009) 13 SCC 530. (iii) Absence or non-production of FIR or the result of criminal trial does not have any bearing on the result of the claim petition. (Minu Rout vs. Satya Pradyumna Mohapatra, (2013) 10 SCC 695. (iv) Production of FIR and the report filed under Section 173 Cr.P.C. indicting the offending vehicle in the prima facie evidence to prove the accident.(N.K.V. Bros. (P) Ltd. vs. M. Karumai Ammal and Ors., (1980) 3 SCC 457. (v) Examination of some best eyewitnesses is not the requirement in the motor-accident claims. Nonexamination thereof is not fatal. (Anita Sharma vs. New India Assurance Co. Ltd., (2021) 1 SCC 171. (vi) The site plan prepared by the Investigating Agency alone is not sufficient to prove the plea of contributory negligence. The onus to prove the plea of negligence always lies on the respondent.(Sunita and others vs. Rajasthan State Road Transport Co. & Anr. (2020) 13 SCC 486. (vii) Some discrepancies are bound to appear in the ocular evidence as memory fades with the passage of time. (Ram Naresh vs. State of U.P. (2010) 15 SCC 252.
20 (viii) Where best evidence has been withheld by the owner of the offending vehicle, adverse inference has to be drawn. (Smt. Laxmibai vs. Karnataka State Road Transport. (2001) 5 SCC 59. (ix) Admission by the owner of involvement of the vehicle is not binding upon the driver of the vehicle (Saroj and others vs. Het Lal and others, (2011) 1 SCC 388. (x) Failure to cross-examine the witness despite the opportunity having been provided amounts to a tacit admission of the testimony of the said witness. (Anita Sharma vs. New India Assurance Co. Ltd. (2021) 1 SCC 171. (xi) Mere non-lodging of FIR or report by the injured is no ground to reject the claim petition when the other evidence is satisfactory to prove the claim. (Ravi vs. Badrinarayan, (2011) 4 SCC 693. (xii) Whole evidence has to be considered for recording findings. Evidence should not be read in isolated parts. Similarly, hairsplitting of a statement made by the witness is not permissible. Whole testimony has to be seen not isolated sentences. (Sunil Kumar Sambhudayal Gupta and Ors. vs. State of Maharashtra, (2010) 13 SCC 657. 17. In Anita Sharma and others vs. New India Assurance Company Limited and another (2021) 1 SCC 171, the Hon’ble Supreme Court reiterated the view earlier taken in Parmeshwari vs. Amir Chand, (2011) 11 SCC 635 that it is very difficult to trace witnesses and collect information for an accident which took place many hundreds of kilometres away and in a situation of this nature, the Tribunal has rightly taken a holistic view of the matter.” 30.
Thus, there is no infirmity in the standard adopted by the learned MACT. 31.
A heavy reliance was placed upon the contents of the chargesheet to submit that the deceased was travelling in the
21 vehicle at the time of the accident. A similar situation arose before this Court in National Insurance Company Vs Babu 2021 HLJ 879. The FIR recorded that 7-8 persons including the deceased were travelling in the rear of the goods carriage vehicle. The Insurance company relied upon the contents of the FIR to submit that the accident was caused due to the negligence of the deceased. This Court noticed that the submissions of the Insurance Company as under:- 4(i)(b) The Insurance Company in its reply took a stand that the vehicle was carrying 7-8 passengers at the time of the accident. This stand was taken only on the basis of the contents of FIR No. 341 dated 29.9.2014. Learned Senior Counsel for the appellant submits that the FIR Ext. PW1/A has been relied upon by the claimants themselves, therefore, the contents of the FIR have to be read and accepted in their entirety. The FIR states that 7-8 persons including the deceased were standing in the rear of the goods carriage vehicle. This leads to an inference that the accident occurred because of negligence on the part of the deceased himself. Sanjay died due to his own negligence. Learned Senior Counsel for the appellant placed reliance upon the following para from, titled National Insurance Company Limited versus Rattani and Others, 2009 (2) SCC 75:- "8. We are not oblivious to the fact that ordinarily, an allegation made in the first information would not be admissible in evidence per se but as the allegation made in the first information report had been made a part of the claim petition, there is no doubt whatsoever that the Tribunal and consequently the appellate courts would be entitled to look into the
22 same. However, in their depositions, the claimants raised a new plea, namely that the deceased and the other injured persons were travelling in the said truck as representatives of the owner of the goods." 32.
This Court held that the strict principles of evidence do not apply to the proceedings before MACT and the claimant has to prove a fact on the preponderance of probability. It was observed:- “4(i) (c) It is 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 the 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 the preponderance of probability and not the strict standard of proof beyond all reasonable doubts which is followed in criminal cases [Re: titled Sunita & Ors. Vs. Rajasthan State Road Transport Corporation & Anr., 2020 (13) SCC 486] In the titled Anita Sharma and Others Vs. New India Assurance Company Limited and Another 2021 (1) SCC 171, Hon'ble Supreme Court reiterated the well-established principle that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in Motor accident claim cases. The standard of proof in such like matters is one of the preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of courts while examining evidence and material placed on record in accident claim cases is to analyse to ascertain whether the claimant's version is more
23 likely than not true. Relevant paras of the judgment are extracted hereunder:- "17. Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot or the appellant claimants' hardship in tracing witnesses and collecting information for an accident, which took place many hundreds of kilometres away in an altogether different State. Close to the facts of the case in hand, this Court in Parmeshwari v. Amir Chand viewed that: (SCC p.638, para 12). "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. 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 a reasonable doubt could not have been applied." 22. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz, 2013 10 SCC 646, wherein this Court reiterated that: (SCC p.650, para 7)
24 "7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup 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 a reasonable doubt. (Bimla Devi v. Himachal RTC, 2009 13 SCC 530. 33.
The submissions of the Insurance Company was rejected after holding that in the absence of the statement of the informant, the contents of the FIR cannot be relied upon. It was observed:- 4(i)(d) In the instant case, the entire stand of the appellant with respect to the alleged negligence of the deceased in standing in the rear of the vehicle is based upon the contents of the FIR. The best person to prove these specific averments in the FIR was the complainant/informant-Ali Mohd. He has not been examined by the Insurance Company. The suggestion given to PW1 Babu/claimant during his cross-examination on behalf of the appellant that the deceased was standing in the vehicle has been denied by him. PW1 has denied that 7-8 persons including the deceased were travelling in the vehicle as gratuitous passengers. There is no affirmative evidence on record to prove that 7-8 persons including the deceased were standing in the rear of the vehicle. In their joint reply filed to the claim petition, the driver and the owner of the vehicle (respondent No. 3) did not state that the deceased was standing in the rear portion of the vehicle. The owner of the vehicle, though admitted a suggestion given to him by the Insurance Company about the deceased's standing in the vehicle, however, his admission is of no significance as he was not present at the spot. The driver of the vehicle did not step into the witness box. It is even otherwise the pleaded case of respondent No. 4 that the accident was
25 caused because of his driving the vehicle to the extreme side of the road for avoiding collision with an over- speeding truck. The FIR has to be read conjointly with the statements of the claimant, owner of the vehicle and other evidence on record. Therefore, the findings recorded by the learned Tribunal that the accident had occurred because of rash and negligent driving of the vehicle by respondent No. 4, are in order. The finding of the learned Tribunal that the deceased was travelling as a labourer in the goods carriage vehicle and that he was employed by respondent No. 3 also does not call for any interference. It is not only the case of claimants but also of the owner of the vehicle that the deceased was in the employment of respondent No. 3 (owner of the vehicle) and that he was travelling in the vehicle in that capacity as a labourer.” 34.
Therefore, not much advantage can be derived from the contents of the chargesheet. 35.
The claimant Ram Piari (PW-3), stated that the deceased had died due to the accident involving a Jeep. Her version is duly corroborated by Sanjay Kumar and the absence of the proper explanation by respondent no.1. Thus, there is no infirmity in the findings recorded by the learned MACT that Jai Kishan had died in a motor vehicle accident involving the Jeep-owned and driven by respondent no.1. 36.
A heavy reliance was placed upon the photocopy of the News item (Mark “A”) in which it was mentioned that Jai Kishan had fallen from the motorcycle. The person who wrote the news
26 item was not examined before the Court. It was laid down by Hon’ble Supreme Court in S.A. Khan v. Ch. Bhajan Lal, (1993) 3 SCC 151, that the contents of the news item are hearsay and cannot be relied upon unless the author of the news item is examined. It was observed:- “22. In the present case, no evidence has been let in proof of the statement of facts contained in the newspaper report. The absence of any denial by Ch. Bhajan Lal will not absolve the applicant from discharging his obligation of proving the statement of facts as appeared in the Press report. In fact, Ch. Bhajan Lal in his counter-affidavit has taken a stand that the statements attributed to him based on the newspaper report are mere hearsay and cannot in law be relied upon for the purpose of initiating such proceedings. Therefore, in the absence of required legal proof, the Court will not be justified in issuing a suomotu notice for contempt of court.” 37.
This position was reiterated in Dinesh B.S. vs. State of Karnataka MANU/SCOR/113600/2023 wherein it was observed: “15. To show the error in the reasoning of the High Court on laying much credibility on the newspaper reports, the learned Senior Counsel Mr. D. Seshadri Naidu quoted Mark Twain who said, If you don't read the newspaper, you're uninformed. If you read the newspaper, you're misinformed. In the facts of the present case, this Court is inclined to accept the submission of the learned Counsel that an extrajudicial confession cannot be given greater credibility only because it is published in a newspaper and is available to the public at large. It is well-established in law that newspaper reports can at best be treated as secondary evidence. This Court in Laxmi Raj Shetty & Anr. v. State of Tamil Nadu, (1988) 3 SCC 319 held that:
27 25. ...We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in s. 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under s. 81 of the Evidence Act to a newspaper's report cannot be treated as proof of the facts reported therein.” 38.
Therefore, no reliance can be placed upon the news item Mark “A”. 39.
Moreover this item is based upon the F.I.R. which itself was based upon the speculation. Therefore, the news item will not establish the negligence of Harbans. 40.
Virender Singh (PW-2), proved the salary statement for April, 2012 (Ext.PW-2/A), which shows that deceased Jai Kishan was drawing gross pay of ₹ 16,845/-. A deduction of ₹3015/- was being made towards the GPF subscription, insurance fund and savings fund. 41.
Dr. Lalit Kumar Sharma submitted that the learned MACT erred in relying upon the gross income and it should have deducted the various deductions. This submission cannot be accepted. It was laid down by the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Indira Srivastava (2008) 2 SCC 763 that
28 the gross salary of the deceased has to be considered while determining the compensation. This judgment was followed by the Hon'ble Supreme Court in Yerramma & Ors. Versus G. Krishnamurthy & Anr. AIR 2015 Supreme Court 1145 wherein after quoting Indira Srivastava, supra, the Hon'ble Supreme Court held that the gross salary has to be taken into consideration and the High Court had erred in considering the net salary while determining the loss of dependency. It was observed:- “12. Further, with regard to the gross annual income of the deceased, to determine the loss of dependency of the appellants, we refer to the case of National Insurance Co. Ltd. v. Indira Srivastava (2008) 2 SCC 763, wherein this Court has held as under:- “19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted. 20. The term 'income' in P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Ed.) has been defined as under: "The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has a substantial interest in the company and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person
29 aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture." It has also been stated : 'INCOME' signifies 'what comes in' (per Selborne, C., Jones v. Ogle, 42 LJ Ch.336). 'It is as large a word as can be used' to denote a person's receipts '(per Jessel, M.R. Re Huggins, 51 LJ Ch.938.) income is not confined to receipts from business only and means periodical receipts from one's work, lands, investments, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC 511: 1930 MWN 29: 31 MLW 438 AIR 1930 Mad 626: 58 MLJ 337." 13. The Tribunal on examining the salary slip of the deceased for the month of April 2011 determined the salary of the deceased at ₹21,168/- per month after deducting towards P.T. and other statutory deductions. Therefore, the Tribunal arrived at ₹21,168/- per month as the salary of the deceased. The High Court in its impugned judgment and order affirmed the same. We are of the view, that on the facts and circumstances of this case, the net salary of the deceased taken by the Tribunal and the High Court for determination of loss of dependency is erroneous as it is not in accordance with the principles laid down by this Court in this regard. Therefore the same is liable to be set aside as it has to be properly determined by taking the gross income of the deceased. It is clear that the gross income of the deceased at the time of his death as per his salary slip was ₹26,000/- per month. Therefore, we are of the view that a just and reasonable compensation under the head of loss of dependency has not been determined by the courts below. Thus, the impugned judgment and order of the High Court is vitiated both on account of erroneous finding and error in law. The gross salary drawn by the deceased at the time of his death was ₹26,000/- per month. The High Court and the Tribunal have taken the net salary at ₹21,168/- per month, thereby the Courts below have erred in making deductions from the gross salary of the deceased towards P.T. of ₹200/- and other statutory deductions and therefore, arriving at ₹21,168/- per
30 month as the net salary of the deceased is erroneous in law. Therefore, we are of the view that both the Tribunal and the High Court have erred in not following the rules laid down by this Court in Indira Srivastava’s (supra) in not taking the gross income of the deceased to determine the loss of dependency.” 42.
Similarly, it was held in Manasvi Jain Versus Delhi Transport Corporation AIR 2014 SC (Supp) 1746 that while taking the salary of the government servant, contribution in the nature of savings cannot be deducted. However, the income tax paid by the employee has to be deducted. 43.
The salary statement does not show any deduction towards the income tax and no amount is to be deducted towards the income tax. Thus, there is no infirmity in considering the gross pay. 44.
The learned MACT had taken the age of the deceased as 57 years. This is as per the post-mortem report (Ext.PW-1/B) wherein the age of the deceased was mentioned as 57 years. It was laid down by the Hon’ble Supreme Court in National Insurance Company Ltd. vs Pranay Sethi (2017) 16 SCC 680 that an addition of 15% has to be made to the actual salary drawn by the deceased towards the future prospects where his age is between 50 to 60 years. Thus, the learned Tribunal had rightly increased the income
31 by 15% towards the prospects and had taken the income as ₹19,372/-. 45.
The learned MACT noticed that claimants no. 2 to 4 are major and married sons of the deceased and deducted 1/3rd towards the personal and living expenses of the deceased as per the judgment of the Supreme Court in Sarla Verma (supra). Since claimants no. 2 to 4 are not to be considered to be dependents, therefore, learned Tribunal had rightly deducted 1/3rd towards the personal and living expenses of the deceased and had rightly taken the loss of dependency as₹12,915/-. 46.
The deceased was aged 57 years and a multiplier of 9 was to be applied as per the judgment of Sarla Verma (supra) and the loss of dependency was rightly calculated as ₹ 13,94,820/- (₹12,915x9x12). 47.
The learned MACT awarded ₹1,00,000/- towards loss of consortium to claimant no.1 and ₹1,00,000/-to claimants no. 2 to 4 towards the love, affection, care and guidance. It also awarded a sum of ₹ 50,000/- for funeral expenses. Learned MACT erred in doing so. Hon’ble Supreme Court had laid down in Pranay Sethi’s case that a reasonable figure on conventional heads,
32 namely loss of estate, loss of consortium and funeral expenses should be ₹ 15,000/-, ₹ 40,000/- and ₹ 15,000/- respectively and this amount should be enhanced at the rate of 10% in every three years. 48.
Thus, the claimants are entitled to ₹16,500/- for loss of estate and ₹16,500/-towards funeral expenses. 49.
The petition has been filed by four persons. It was laid down by the Hon’ble Supreme Court in Janakbai Vs M/s ICICI Lombard 2022 ACJ 2003(SC) that the consortium of ₹ 40,000/- has to be awarded to each of the claimants and a wife/husband will be entitled to loss of spousal consortium, parents are entitled to the filial consortium and children are entitled to the parental consortium. Reliance was placed upon the judgment of the Hon’ble Supreme Court in United India Insurance Company Vs Satinder Kaur (2021) 11 SCC 780. 50.
The amount of ₹ 40,000/- has to be increased by 10% as per the judgment of the Hon’ble Supreme Court in Pranay Sethi (supra), therefore, each of the claimants will be entitled to ₹44,000/- towards the loss of consortium. Thus, an amount of ₹ 1,76,000/- is awarded towards the loss of consortium.
33 51.
Therefore, the claimants will be entitled to a total compensation of ₹16,03,820/- (₹ 13,94,820+₹16,500+₹16,500+₹ 1,76,000) and learned MACT erred in awarding ₹16,44,820/-. 52.
The claimants did not file any revenue record to show that the deceased had agricultural property, therefore, the learned MACT could not have considered the income from agriculture. The learned MACT had rightly applied the multiplier of 9 as per the judgment of the Hon’ble Supreme Court in Sarla Verma’s case (supra). Therefore, the compensation cannot be enhanced. 53.
The insurer pleaded that no policy was issued by it, however, it is not correct as the policy (Ext.PW2/E), shows that vehicle No. HP24-7829 was insured by respondent no.2 w.e.f. 20.05.2012 till 19.05.2013. Therefore, respondent no.2 had insured the vehicle on 21.05.2012, the date of the accident. 54.
Registration Certificate (Ext.RW-2/B) shows that the vehicle bearing HP24A-7829 was registered on 02.07.2010 and had a valid fitness certificate on 28.06.2012. This fitness certificate was extended till 08.06.2013 vide Ext.RW-2/C. Therefore, the vehicle had a valid Registration Certificate on the date of the accident
34 55.
Copy of driving license (Ext.RW-2/A) shows that the respondent possessed a valid driving license to drive LMV w.e.f. 09.03.2009. It had an endorsement regarding the transport vehicle valid till 20.07.2018. It is not shown that these documents were fake and were not issued by the competent authority. Therefore, the pleas taken by respondent no.2 that the vehicle was being driven without a valid driving license and Registration Certificate have not been proved and the learned MACT had rightly held that respondent no.2 is liable to indemnify respondent no.1. 56.
It was submitted that the learned MACT erred in awarding interest @9% per annum. This is not acceptable. The Hon’ble Supreme Court had awarded the interest @9% per annum on the awarded amount in Neeta W/O Kallappa Kadolkar Vs. Div. Manager, MSRTC, Kolhapur 2015 ACJ 598(SC), National Insurance Company Vs. Birender and others2020 ACJ 759andM/s. Royal Sundaram Alliance Insurance Co. Ltd. v. Mandala Yadagari Goud and Ors 2019 ACJ 1644.Therefore, there is no infirmity in awarding interest @ 9% per annum. 57.
No other point was urged.
35 58.
Therefore, the judgment passed by learned MACT is partly sustainable. 59.
In view of above the appeal is partly allowed and the amount of compensation is reduced from ₹16,44,820/- to ₹16,03,820/-. However, the rest of the award is upheld. Further, in view of the above discussion, the cross-objections filed by the claimants are dismissed. The record of the case be remitted back to the learned MACT.
Pending miscellaneous applications, if any, also stand disposed of.
(Rakesh Kainthla)
Judge 21st November,2023
(Ravinder)