Rajasthan High Court - JodhpurShyama Devi And Ors vs Nemi Chand And Ors on 16 September, 2020Author:Pushpendra Singh BhatiBench:Pushpendra Singh BhatiHIGH COURT OF JUDICATURE FOR RAJASTHAN AT\n                        JODHPUR\n                 S.B. Civil Misc. Appeal No. 878/2012\n\nUnited India Insurance Company Limited, Fort Road, Nagaur\nthrough its Legally Constituted Authority, Divisional Office, 12-D\nResidency Road, Jodhpur.\n                                                                    ----Appellant\n                                    Versus\n1. Smt.Shyama Devi W/o Lt. Sh. Parsaram.\n2. Ram Prakash S/o Late Sh. Parsaram.\n3. Mst. Manju D/o Late Sh. Parsaram (Minor).\n4. Gyan Prakash S/o Late Sh. Parsaram (Minor).\n     Minors are represented through their natural guardian mother\nSmt. Shyama Devi.\n     All by caste Jat, Residents of Village Asawari, Tehsil & District\nNagaur.\n5.     Nemi Chand S/o Shri Madanlal mali, resident of Hospital\nRoad, Kuchera, District Nagaur.\n6.      Haidar Ali S/o Mohd. Mazid, resident of Roon, Tehsil &\nDistrict Nagaur.\n7.     Mada Ram S/o Shri Bhikha Ram Jat, Resident of Village\nBarani Khurd, Bhopalgarh, District Jodhpur.\n                                                                 ----Respondents\n                              Connected With\n                 S.B. Civil Misc. Appeal No. 639/2012\n1. Shyama Devi W/o Late Shri Parasram, aged 45 years,\n2. Ram Prakash S/o Late Shri Parasram, aged 17 years,\n3. Manju D/o Late Shri Parasram, aged 15 years,\n4. Gyanprakash S/o Late Shri Parasram, aged 11 years,\n     All by caste Jat, Residents of Village Asawari, Tehsil & District\nNagaur. (The appellant no.2 to 4 being minor through natural\nguardian mother Shyama Devi)\n                                                                   ----Appellants\n                                    Versus\n1.    Nemi Chand S/o Shri Madan Lal, by caste Mali, resident of\nHospital Road Kuchera, District Nagaur.\n2.     Haidar Ali S/o Shri Mohammed Mazid, by caste Musalman,\nresident of Village Roon, Tehsil & District Nagaur.\n3.    Mada Ram S/o Shri Bhikha Ram, by caste Jat, resident of\nVillage Barani Khurd, Bhopalgarh, District Jodhpur.\n\n                     (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                           (2 of 28)                 [CMA-878/2012]\n\n\n4.     United India Insurance Co. Ltd. through Branch Manager,\nBranch Office Fort Road, Nagaur.\n                                                                 ----Respondents\n\n\nFor Appellant(s)           :    Mr.Jagdish Vyas.\nFor Respondent(s)          :    Mr.Mahendra Choudhary.\n                                Mr.RS Choudhary.\n\n\n\n       HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI\n\n                                 Judgment\n\n07/09/2020\n\n1.          In wake of onslaught of COVID-19, abundant caution is\n\nbeing taken while hearing the matters in Court.\n\n2.          The insurance company has preferred Civil Misc. Appeal\n\nNo.878/2012 challenging the judgment dated 20.01.2012 passed\n\nby Motor Accident Claims Tribunal, Nagaur whereas the claimants\n\nhave    preferred    Civil      Misc.     Appeal        No.639/2012       seeking\n\nenhancement     of   the       compensation           awarded     vide   aforesaid\n\njudgment.\n\n3.          The unfortunate accident happened on 11.7.2009 at\n\nabout 6:00 PM while Parsaram (since deceased) was going on\n\nmotorcycle bearing registration No.RJ-21-3M-7518 from Village\n\nRoon to Merta Road, a jeep bearing registration no.RJ-19C-9710\n\ncame from opposite direction and hit the motorcycle as a result\n\nwhereof, Parsaram suffered grievous injuries and died during the\n\ncourse of treatment.\n\n4.          Learned counsel for the appellant insurance company\n\nsubmitted that the learned Tribunal has substantially relied upon\n\ncriminal case documents particularly, FIR, site plan, site inspection\n\nmemo etc. without actually recording the nature of involvement of\n\nthe jeep in question in the accident. Learned counsel for the\n\n                     (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                         (3 of 28)              [CMA-878/2012]\n\n\n\nappellant insurance company submitted that while the accident\n\nhad happened on 11.7.2009, the FIR was lodged on 12.7.2009\n\nwithout giving the registration number of the jeep in question and\n\nit was only at a belated stage on 3.9.2009, Ex.6 Fard Jabti was\n\nprepared when the driver of the jeep in question has brought the\n\nsame before the police authority. Learned counsel for the\n\nappellant insurance company submitted that on the same day i.e.\n\n3.9.2009 when the Fard Jabti was recorded and the vehicle in\n\nquestion i.e. Jeep No.RJ-19C-9710 for the first time came into\n\npicture, the notice underSection 133of the Motor Vehicles Act\n\nwas given. Learned counsel for the appellant insurance company\n\nfurther submitted that the challan documents do not deal with any\n\nexplanation regarding the tracing of the vehicle and the vehicle\n\ncoming into picture is a blurred fact which ought not to be taken\n\ninto consideration by the learned Tribunal. Learned counsel for the\n\nappellant insurance company further submitted that the criminal\n\ncase resulted into acquittal. Learned counsel for the appellant\n\ninsurance company further submitted that the criminal case\n\ndocuments cannot be the sole reason of granting compensation.\n\nLearned counsel for the appellant insurance company further\n\nsubmitted that there were no eye witnesses in the case. In\n\nsupport of his submissions, learned counsel for the appellant\n\ninsurance company has relied upon the following judgments :-\n\n\n(I)   Certified copy of the judgment dated 10.11.2017 passed in\n\nCriminal Original No.355/2009 in this accident against the driver\n\nNemichand wherein all the eye witnesses were declared hostile,\n\nrelevant paras no.9, 10, 11, 12, 13, 14 and 23 whereof read as\n\nunder :-\n\n\n                   (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                       (4 of 28)              [CMA-878/2012]\n\n9-     mDr lk{kh ih-M- 01 ds dFkukuqlkj fouksn ?kVuk dk izR;{kn'khZ lk{kh\ngSA vfHk;kstu lk{kh fouksn dqekj ih-M- 04 us vius l'kiFk dFkuksa esa ;g dgk\ngS fd fnukad 11-07-09 dks ?kjsyw dke ds fy, :.k x;k FkkA 'kke 5-30 cts\nokfil xkao :.k vk jgk FkkA rc ,d thi rst LihM ls vksojVsd djds\nfudyh mDr thi Qkjlkjke ds VDdj ekjdj pyh xbZA fQj jkts'k dks Qksu\ndjds cqyk;k blds ckn Qjlkjke dks thi esa Mkydj vlkojh o tks/kiqj\nysdj x,A Qjlkjke ckn esa [kRe gks x;kA\n       izfrijh{kk esa mDr lk{kh ih-M- 04 fouksn dqekj us ;g cryk;k gS fd\nmlds thi ds uEcj rFkk thi ds pkyd ds ckjs esa /;ku ugha gSA\n       bl izdkj mDr vfHk;kstu lk{kh ih-M- 04 fouksn dqekj us Hkh uk rks\nLi"V :i ls nq?kZVuk dkfjr djus okys thi jftLVªs'ku la[;k vkj ts 19 lh\n9710 dks gksuk crk;k uk gh mDr thi dk oDr nq?kZVuk pkyd vfHk;qDr dks\ngksuk crk;k gSA\n       bl izdkj mDr izR;{kn'khZ lk{kh ih-M- 04 fouksn dqdkj ds c;kuksa ls\nHkh mDr rF; dh rkbZn ugha gksrh gS fd nq?kZVuk mDr thi jftLVªs'ku la[;k\nvkj-ts- 19 lh 9710 ls dkfjr gqbZ gks rFkk mDr thi dk pkyd vfHk;qDr\ngksA\n\n10- vfHk;kstu la[;k ih-M- 10 jkepUnz us Hkh vius l'kiFk dFkuksa esa ;g\ndgk gS fd mlds U;k;ky; esa c;ku nsus ds djhc rhu lky igys 'kke djhc\n6-15 cts og rFkk f'kojke :.k tkus okyh jksM+ ij ugha [kM+s Fks uk gh thi\njftLVªs'ku ua- vkj-ts- 19 lh 9710 ds pkyd dus gekjs ikl mDr thi jksdh\nvkSj uk gh mDr thi ls eksVjlkbfdy dk ,DlhMsUV gksus dh ckr crkbZA bl\nizdkj mDr vfHk;kstu lk{kh us Hkh mDr rF; dh rkbZn ugha dh gS fd nq?kZVuk\nmDr thi jftLVªs'ku la[;k vkj ts 19 lh 9710 ls dkfjr gqbZ gks rFkk mDr\nthi dk pkyd vfHk;qDr gksA\n\n11- vfHk;kstu lk{kh ih-M- 11 jkeizlkn us vius l'kiFk dFkuksa esa ;g dgk\ngS fd eksVjlkbfdy ij lokj Qjlkjke ds ,d thi tks rstxfr jQrkj ls\nvkbZ Fkh] us VDdj ekjhA Qjlkjke ds ?kjokyksa dks Qksu fd;k rFkk mldks\nbZykt ds fy, vLirky ys x,A vkxs mDr lk{kh vius ekSf[kd ijh{k.k esa\ngh ;g dfFkr djrk gS fd thi dk pkyd dkSu Fkk mls irk ughaA mDr\nlk{kh i{knzksgh ?kksf"kr gqvk gS rFkk fo}ku vfHk;kstu vf/kdkjh us mDr lk{kh ls\nfoLr`r ftjg dh gSA ftjg esa Hkh mDr lk{kh iqfyl c;ku izn'kZ ih- 10 esa\nthi pkyd usehpan dk uke ugha fy[kk;k tkuk Lohdkj fd;k gSA\n       bl izdkj mDr lk{kh ih-M- 11 jkeizlkn ds c;kuksa ls Hkh mDr rF;\ndh rkbZn ugha gksrh gS fd nq?kZVuk mDr thi jftLVªs'ku la[;k vkj-ts- 19 lh\n9710 ls dkfjr gqbZ gks rFkk mDr thi dk pkyd vfHk;qDr gksA\n\n12- vfHk;kstu lk{kh ih-M- 13 txnh'k us vius l'kiFk c;kuksa esa ;g dgk\ngS fd pkj lky igys og eksVjlkbfdy ls :.k tk jgk Fkk mlds lkFk esa\neksgujke tkVk FkkA :.k o /kok ds chp ,DlhMsaV gqvk FkkA ,DlhMsaV fdl\nlk/ku ls gqvk rFkk mldk pkyd dkSu Fkk mls tkudkjh ugha gSA bl izdkj\nmDr p'enhn lk{kh us vfHk;kstu dgkuh dks lEcy iznku ugha fd;k gS rFkk\ni{knzksgh ?kksf"kr gqvk gSA izfrijh{kk esa mDr lk{kh us Li"V ;g LohdkjksfDr dh\n\n                 (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                            (5 of 28)              [CMA-878/2012]\n\n     gS fd mlus usekjke dh thi ls ,DlhMsaV gksrs ugha ns[kkA\n\n     13- vfHk;kstu lk{kh ih-M- 15 f'kojke us Hkh vius l'kiFk c;kuksa esa nq?kZVuk\n     dkfjr djus okys lk/kku ds :i esa thi jftLVªs'ku la[;k vkj ts 19 lh\n     9710 dks ugha crk;k gS uk gh oDr nq?kZVuk mDr thi dk pkyd vfHk;qDr\n     dk gksuk crk;k gSA bl izdkj mDr lk{kh ds c;kuksa ls Hkh bl rF; dh iqf"V\n     ugha gksrh gS fd nq?kZVuk mDr okgu thi jftLVªs'ku la[;k vkj ts 19 lh\n     9710 ls dkfjr gqbZ gks rFkk mDr thi dk pkyd vfHk;qDr gksA\n\n     14- vfHk;kstu lk{kh ih-M- 16 thoujke us nq?kZVuk ugha ns[kuk Lohdkj\n     fd;k gSA bl izdkj mDr lk{kh us Hkh bl rF; dh ys'kek= Hkh rkbZn ugha dh\n     gS fd nq?kZVuk mDr okgu thi jftLVªs'ku la[;k vkj ts 19 lh 9710 ls\n     dkfjr gqbZ gks rFkk mDr thi dk pkyd vfHk;qDr gksA\n\n     23- vc gesa bl rf; dk fu/kkZj.k djuk gS fd mDr nq?kZVuk vfHk;qDr }kjk\n     mDr okgu thi jftLVªs'ku la[;k vkj ts 19 lh 9710 dks rstxfr\n     mrkoysiu o mis{kkiw.kZ rjhds ls pykdj dkfjr dh xbZA mDr rF; ds lEcU/\n     k esa iwoZ esa foLrkj ls foospu fd;k tk pqdk gS fd oDr nq?kZVuk mDr okgu\n     thi jftLVªs'ku la[;k vkj ts 19 lh 9710 dk pkyd vfHk;qDr dk gksuk\n     vfHk;kstu i{k dh lk{; ls izekf.kr ugha gqvk gSA blds vfrfjDr ifjoknh\n     jkts'k dqekj us vis izfrijh{kk esa ekSds ij mifLFkr ugha gksuk Lohdkj fd;kA\n     vfHk;kstu dgkuh ds vuqlkj ?kVuk ds izR;{kn'khZ lk{khx.k rFkk ?kVukLFky\n     ij ?kVuk ds rqjUr i'pkr igqp    a us okys lk{khx.k ih-M- 10 jkepUnz o ih-M- 11\n     jkeizlkn] ih-M- 13 txnh'k] ih-M- 15 f'kojke o ih-M- 16 thoujke us\n     vfHk;kstu dgkuh dh rkbZn ugha dh gSA mDr leLr lk{khx.k i{knzksgh ?kksf"kr\n     gq, gSA bl izdkj i=koyh ij miyC/k leLr ekSf[kd lk{; ls ;g rF;\n     HkyhHkkafr izekf.kr ugha gqvk gS fd mDr nq?kZVuk dkfjr djus esa vfHk;qDr dh\n     mis{kk] xyrh ;k ykijokgh jgh gksA bl izdkj vfHk;kstu i{k ;g\n     rf; ;qfDr;qDr :i ls lansg ls ijs izekf.kr djus esa vleFkZ jgk gS fd mDr\n     nq?kZVuk vfHk;qDr }kjk mDr okgu thi jftLVªs'ku la[;k vkj ts 19 lh 9710\n     dks rstxfr mrkoysiu o mis{kkiw.kZ rjhds ls pykdj dkfjr dh xbZA\n              blh izdkj vfHk;qDr ds fo:) fdlh Hkh lk{kh us bl ckjs esa dksbZ\n     dFku ugha fd;k gS fd vfHk;qDr oDr nq?kZVuk ekSds ls Hkkx x;k gks vkSj\n     vkgr dks fpfdRldh; lqfo/kk ugha iznku djk, rFkk ?kVuk dh lwpuk\n     fudVre iqfyl Fkkuk dks ugha nhA\n\n(II) Cholamandalam General Insurance Co. Ltd. vs. Smt. Badami\n\n& Ors. reported in 2018(2) RAR 587 (Raj.), relevant para no.6\n\nwhereof reads as under :-\n\n\n          "6.    In order to prove Issue No.1 claimants had failed\n    to examine any eye-witness. The only witness examined by\n    the claimants was A.W.1 Shri Pema. The said witness had not\n\n                      (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                        (6 of 28)              [CMA-878/2012]\n\n\n    witnessed the accident. It was necessary for the claimants to\n    have proved that the accident had occurred on account of\n    rash and negligent driving of respondent No.5 while driving\n    the offending vehicle. Merely because challan had been\n    presented in the criminal case, was not sufficient to decide\n    Issue No.1 in favour of the claimants. The driver of the\n    offending vehicle could be acquitted in the criminal case. So\n    far as the claim petition was concerned, the claimants were\n    required to examine the eye-witnesses to establish the\n    manner of accident. Opposite party would have got an an\n    opportunity to cross-examine the eye-witness to test his\n    testimony with regard to the manner of accident. In the\n    absence of examination of the eye-witness before the\n    Tribunal, the opposite party has been denied its valuable right\n    to cross-examine the said witness and establish their own\n    plea. Although, as per the judgments relied upon by the\n    learned counsel for the claimants given by Coordinate Bench\n    of this Court (Single Bench), claim petition could be allowed\n    in the absence of examination of eye-witness but in the\n    considered opinion of this court, examination of an eye-\n    witness before a claim petition could be allowed was\n    essential. In case it is to be held that there was no need to\n    examine an eye-witness and the claim petition could be\n    allowed merely on the basis of the documents attached with\n    the challan in the criminal case, then there is no need even to\n    issue notice to the opposite party and the compensation could\n    be granted merely on the filing of the claim petition alongwith\n    challan papers. However, it cannot be done so. Before a claim\n    petition could be allowed, the other party has to be heard.\n    Claimants have to examine witnesses to prove the issues qua\n    which onus is upon them. Other party gets a chance to cross-\n    examine the witnesses and test the truthfulness of the said\n    witnesses."\n\n(III) Mataji Bewa and others. vs. Hemanta Kumar Jena and\n\nanother, reported in 1994 ACJ 1303, relevant para no.6 whereof\n\n\n\n                  (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                           (7 of 28)                [CMA-878/2012]\n\n\n\nreads as under :-\n\n\n          "6.   In view of the rival submissions of the parties, the\n     first question that arises for consideration is whether the\n     Tribunal was justified in holding that the deceased was\n     travelling on the offending truck as a passenger and\n     succumbed to the injury on account of the accident of the\n     truck in question. The sole basis for the Tribunal to come to\n     the aforesaid conclusion is the contents of a charge-sheet\n     filed in the criminal case. The contents of a charge-sheet\n     cannot possibly be treated as an evidence in the claim\n     proceedings. The Tribunal obviously committed gross error of\n     law in relying upon the said charge-sheet to come to the\n     conclusion that the deceased was travelling on the truck as a\n     passenger. On the other hand, the positive evidence of the\n     claimants that the deceased was a pedestrian and the truck\n     came and knocked him down has not been impeached in any\n     manner     by   way      of    cross-examination.           There   was   no\n     justification on the part of the Tribunal to ignore that\n     evidence of the claimants. In the aforesaid premises, the\n     finding of the Tribunal that the deceased was travelling on\n     the truck cannot be sustained and the said finding is\n     accordingly set aside. On the evidence on record, it must be\n     held that the deceased was a pedestrian and while going on\n     the road, the offending truck came and knocked him down."\n\n(IV) Mahesh Kumar Sharma and another. vs. United India\n\nInsurance Co. Ltd. and others, reported in 2008 RAR 72 (Raj.),\n\nrelevant para no.10 whereof reads as under :-\n           "10. Since learned Tribunal placed reliance on the\n     statements of witnesses recordedu/S. 161CrPC. I deem it\n     appropriate to examine the scope and object of this section.\n     It is well settled that examination contemplated bySec. 161CRPC is not of judicial character. The statements of persons\n     made before the police and before the Court on oath cannot\n     be treated as identical and do not stand on the same footing.Sec. 162(1)contain a mandate to Investigating Police Officer\n\n                     (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                           (8 of 28)              [CMA-878/2012]\n\n\n      not to obtain signature of the person whose statement is\n      reduced in writing. Thus every valid and lawful case diary is\n      unsigned by the witness. The statement recordedu/S. 161CrPC cannot be used as a substantive piece of evidence. It\n      could only be utilised for the purpose of contradicting the\n      evidence of prosecution witnesses. Statement recorded U/S.\n      161CrPC cannot be used for any other purpose except\n      specifyu/S. 162CrPC."\n\n\n(V)   Oriental Insurance Company Limited vs. Meena Variyal and\n\nOrs, reported in (2007) 5 SCC 428, relevant paras no.10 & 11\n\nwhereof read as under :-\n\n           "10. Before we proceed to consider the main aspect\n      arising for decision in this Appeal, we would like to make\n      certain general observations. It may be true that theMotor\n      Vehicles Act, insofar as it relates to claims for compensation\n      arising out of accidents, is a beneficent piece of legislation. It\n      may also be true that subject to the rules made in that\n      behalf, the Tribunal may follow a summary procedure in\n      dealing with a claim. That does not mean that a Tribunal\n      approached with a claim for compensation under the Act\n      should ignore all basic principles of law in determining the\n      claim for compensation. Ordinarily, a contract of insurance is\n      a contract of indemnity. When a car belonging to an owner is\n      insured with the insurance company and it is being driven by\n      a driver employed by the insured, when it meets with an\n      accident, the primary liability under law for payment of\n      compensation is that of the driver. Once the driver is liable,\n      the owner of the vehicle becomes vicariously liable for\n      payment of compensation. It is this vicarious liability of the\n      owner that is indemnified by the insurance company. A third\n      party for whose benefit the insurance is taken, is therefore\n      entitled to show, when he moves underSection 166of the\n      Motor Vehicles Act, that the driver was negligent in driving\n      the vehicle resulting in the accident; that the owner was\n      vicariously liable and that the insurance company was bound\n\n                     (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                     (9 of 28)                    [CMA-878/2012]\n\n\nto indemnify the owner and consequently, satisfy the award\nmade. Therefore, under general principles, one would expect\nthe driver to be impleaded before an adjudication is claimed\nunderSection 166of the Act as to whether a claimant before\nthe Tribunal is entitled to compensation for an accident that\nhas occurred due to alleged negligence of the driver. Why\nshould not a Tribunal insist on the driver of the vehicle being\nimpleaded when a claim is being filed?\n\n\n     11.   As we have noticed, the relevant provisions of the\nAct are not intended to jettison all principles of law relating\nto a claim for compensation which is still based on a tortious\nliability. The Tribunal ought to have, in the case on hand,\ndirected the claimant to implead Mahmood Hasan who was\nallegedly driving the vehicle at the time of the accident.\nHere, there was also controversy whether it was Mahmood\nHasan who was driving the vehicle or it was the deceased\nhimself. Surely, such a question could have been decided\nonly in the presence of Mahmood Hasan who would have\nbeen principally liable for any compensation that might be\ndecreed in case he was driving the vehicle. Secondly, the\ndeceased was employed in a limited company. It was\nnecessary for the claimants to establish what was the\nmonthly income and what was the dependency on the basis\nof which the compensation could be adjudged as payable.\nShould not any Tribunal trained in law ask the claimants to\nproduce evidence in support of the monthly salary or income\nearned by the deceased from his employer Company? Is\nthere anything in theMotor Vehicles Actwhich stands in the\nway of the Tribunal asking for the best evidence, acceptable\nevidence? We think not. Here again, the position that theMotor Vehicles Actvis-a-vis claim for compensation arising\nout of an accident is a beneficent piece of legislation, cannot\nlead a Tribunal trained in law to forget all basic principles of\nestablishing   liability    and      establishing          the   quantum    of\ncompensation payable. The Tribunal, in this case, has chosen\nto merely go by the oral evidence of the widow when without\n\n               (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                           (10 of 28)               [CMA-878/2012]\n\n\n     any difficulty the claimants could have got the employer -\n     company to produce the relevant documents to show the\n     income that was being derived by the deceased from his\n     employment. Of course, in this case, the above two aspects\n     become relevant only if we find the insurance company\n     liable. If we find that only the owner of the vehicle, the\n     employer of the deceased was liable, there will be no\n     occasion to further consider these aspects since the owner\n     has acquiesced in the award passed by the Tribunal against\n     it.\n\n\n(VI) United India Insurance Co. Ltd. vs. Pawan Tikkiwal and Ors.\n\nreported in 2008 RAR 56 (Raj.), relevant para no.7 whereof reads\n\nas under :-\n           "7.   One of the settled principle of the law of evidence\n     is that the first version of an incident contains the kernel of\n     truth. For, it is the tendency of human beings to speak the\n     truth immediately. Subsequently, after due deliberations, the\n     facts can be changed, the story can be embroidered and a\n     fictional version can be created. Thus, while appreciating the\n     evidence, the courts consider the initial statement as\n     containing the substratum of truth. In case there is a change\n     in the factual foundation of the case, the court should be put\n     on alert and should scrutinise the evidence meticulously so\n     as to separate the wheat from the sheff."\n\n\n5.         Learned     counsel        for     the      claimants   categorically\n\nsubmitted that the appellant insurance company is trying to create\n\na mistrust in the mind of the Court even when the findings arrived\n\nat by the learned Tribunal are well reasoned and in accordance\n\nwith law. Learned counsel for the claimants submitted that in case\n\nany doubt was there upon the story of prosecution, then the\n\ninvestigating officer should have been called by the insurance\n\ncompany to negate the facts on record of the charge-sheet. There\n\n\n                     (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                         (11 of 28)             [CMA-878/2012]\n\n\n\nwas no cross examination whatsoever on the part of the insurance\n\ncompany to refute the implication of the vehicle in question.\n\nLearned counsel for the claimants further submitted that a\n\npossibility of preponderance was created when the charge-sheet\n\nwas filed and it was for the insurance company to point out the\n\nloophole, if any, in the prosecution story. Learned counsel for the\n\nclaimants in support of his submissions has relied upon the\n\nfollowing judgments :-\n\n\n(I)   National Insurance Co. Ltd. vs. Rajendra Singh & Ors.\n\nreported in MACD 2013(3) (Raj.) 1353, judgment whereof reads\n\nas under :-\n           "This appeal is directed against the judgment and\n      award dated 24.8.2005 passed by the Motor Accident Claims\n      Tribunal, Sriganganagar, Camp at Suratgarh ('the Tribunal'),\n      whereby the Tribunal has awarded a sum of Rs.6,66,000/- as\n      compensation for the death of one Gulab Singh.\n           2.   The facts in brief are that an application for\n      compensation underSection 166was filed before the\n      Tribunal by the parents and wife of Gulab Singh with the\n      averments that on 27.2.2002 their son / husband Gulab\n      Singh was going on the road when Truck No. RRC-828 came\n      from behind, which was being driven rashly and negligently\n      by Awatar Singh and hit Gulab Singh from behind, the truck\n      driver and owner of the vehicle admitted Gulab Singh at\n      Suratgarh Hospital where he succumbed to injuries. It was\n      indicated that the FIR of the said incident was lodged at\n      Police Station Suratgarh and after investigation, the police\n      has filed challan against the truck driver Awatar Singh. The\n      claimants claimed a sum of Rs.25,80,000/- as compensation\n      for untimely death of Gulab Singh, who was aged 27 years\n      and was employed as a truck driver.\n           3.   A reply to the application was filed by the owners\n      and driver of the truck and it was contended that the fact of\n\n                   (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                    (12 of 28)             [CMA-878/2012]\n\n\nthe matter was that while going on the road from Bikaner to\nSuratgarh, they found a injured person lying at side of the\nroad and it was found that he was Gulab Singh, who was\nrelated to Amarjeet Singh, the owner of the truck, therefore,\nthey took the injured to the hospital and lodged the FIR\nagainst the unknown driver. However, subsequently, the\nrelatives, only with a view to claim compensation, have\nlodged false case against them and denied the factum of\naccident. However, it was stated that if they are found liable\nthen the liability for compensation for the death will be of the\nappellant-Insurance Company only.\n     4.    The appellant-Insurance Company also filed its\nreply to the application and denied the involvement of the\nvehicle in the accident. Several other pleas seeking to\ndispute its liability based on the violation of policy conditions\nwere also raised. Ultimately, it was prayed that claim\napplication be dismissed.\n     5.    The Tribunal framed four issues and on behalf of\nthe claimants AW-1 Puja wife of the deceased was examined\nand on behalf of the appellant-Insurance Company NAW-1\nSatyanarayan was examined. No other evidence was led by\nany of the parties.\n     6.    The Tribunal after hearing the parties came to the\nconclusion that the accident occurred on account of rash and\nnegligent driving by the driver Awatar Singh and awarded\ncompensation of Rs.6,66,000/- alongwith interest @ 9% p.a.\nfrom the date of filing the application.\n     7.    It was contended by learned counsel for the\nappellant-Insurance Company that the non-involvement of\nthe vehicle in question is writ large on the record of the case,\ninasmuch as, the FIR was lodged by Amarjeet Singh, the\nowner of the vehicle, who was himself with the vehicle at the\ntime of accident and incidentally, Gulab Singh, the deceased\nwas the relative, they took him to hospital, where he\nsuccumbed. It was submitted that the claimants have failed\nto lead any evidence and the evidence of AW-1 Puja is no\nevidence in the eye of law as she has specifically stated in\n\n              (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                       (13 of 28)                      [CMA-878/2012]\n\n\nher statement that she was not a eyewitness and she was\ngiving the statement as told to her by her father-in-law.\nConsequently, the finding recorded by the Tribunal which is\nbased on merely drawing adverse inference on account of\nnon-examination of the driver of the vehicle-in-question\ncannot be the basis.\n      8.     It was submitted that as the owner and driver\nfailed to contest the claim by leading any evidence, the\nappellant-Insurance Company's application underSection\n170was allowed and thereafter, the evidence was led and\nthe   officers   of    the     appellant-Insurance              Company       have\nspecifically stated that the vehicle-in-question was not\ninvolved.\n      9.     Learned counsel Mr. Joshi appearing for the\nrespondent No.3 duly supported the award impugned.\n      10.    I have considered the rival submissions.\n      11.    It is true that in the present case there has been\nno eyewitness of the accident and, therefore, the matter was\nrequired to be examined on the basis of probability based on\nthe evidence available on record.\n      12.    On part of the claimants, AW-1 Puja, wife of the\ndeceased appeared in the witness-box and exhibited the\ndocuments prepared by the police authorities which included\nthe   FIR,   Final     Report,       Postmortem              Report    and    other\nsupporting documents.\n      13.    On part of the appellant-Insurance Company only\none line statement was made by NAW/4/1 Satyanarayan that\nthe vehicle-in-question was not involved in the accident. The\ndriver and owner of the vehicle after filing their written\nstatement choose not to appear in the witness-box and\nlooking to the nature of issue which was framed by the\nTribunal as to whether the vehicle was being driven rashly\nand negligently by Awatar Singh, which struck Gulab Singh,\nwhich resulted in his death, once the documents prepared by\nthe police authorities wherein challan was filed against the\ndriver of the vehicle and which documents have been held to\nbe admissible in evidence by this Court in R.S.R.T.C. v. Nand\n\n                 (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                           (14 of 28)             [CMA-878/2012]\n\n\n     Lal : ACTC 2001 (Raj.) 489 the burden shifted on the owner\n     and driver of the vehicle and once they chose not to appear\n     in the witness-box. The finding recorded by the Tribunal of\n     drawing adverse inference against them cannot be faulted.\n           14.   So far as the fact that FIR was lodged by owner of\n     the vehicle himself cannot be a solitary sufficient ground to\n     come to a conclusion that the said vehicle was not involved\n     in the accident as such a presumption would lead to\n     undesirable consequences.\n           15.   In that view of the matter, the finding recorded by\n     the Tribunal on issue No.1 cannot be faulted and the same\n     does not require any interference. No other issue was\n     pressed during the course of arguments.\n           16.   In view of the above discussions, there is no\n     substance in the appeal and the same is, therefore,\n     dismissed. The execution of the award was stayed by this\n     Court vide order dated 7.8.2006 it shall be required of the\n     appellant - Insurance Company to comply with the award\n     within a period of two months in terms of the award.\n           17.   No costs."\n\n\n(II) New India Assurance Co. Ltd., Thro' Regional Manager, Jaipur\n\nvs. Yugal Kishore Sharma & Ors. reported in 2017(4) DNJ (Raj.)\n\n1513, relevant paras no.7, 8 & 11 whereof read as under :-\n\n\n     "7. mijksDr of.kZr ?kVukdze ds voyksdu ls izdV gksrkgS fd izFke lwpuk\n     fjiksVZ ?kVuk ds rqjUr i'pkr ntZ djk;k tkukrFkk jkstukepk fjiksVZ o izFke\n     lwpuk fjiksVZ esa okgu ds fooj.k ds( i'pkr okgu Lokeh dks okgu ds pkyd\n     o nq?kZVuk ds ckcr uksfVlfn;k tkuk ,oa vuqla/kku ds i'pkr okgu pkyd ds\n     fo:) vkjksiizekf.kr gksus ij vkjksi i= izLrqr fd;k tkuk izdV gksrk\n     gS]ftldk foospu v/khuLFk U;k;ky; us vius fu.kZ; esa foLr`r :ils fd;k gSA\n     v/khuLFk U;k;ky; esa Dyses.V dh vksj ls p'enhnlk{kh ds :i esa ,-M-3 egs'k\n     dqekj dks ijhf{kr djok;k x;k gSrFkk Dyses.V dh lk{; ds [k.Mu esa chek\n     dEiuh dh vksj ls u rksnLrkosth lk{; esa chek dEiuh ds tkap\n     vf/kdkjh }kjk dh xbZtkWap dk fjdkMZ is'k fd;k x;k gS] u chek dEiuh dh\n     vksj ls[k.Mu esa xokg izLrqr gqvk gSA bl dze esa chek dEiuh dsvf/koDrk ds\n     }kjk U;k;ky; eas ewy :i ls ;g rdZ j[kk x;kfd ;fn chek dEiuh dh vksj\n     ls xokg izLrqr ugha Hkh fd;k x;kgS] rc Hkh v/khuLFk U;k;ky; }kjk ikfjr\n\n                     (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                            (15 of 28)             [CMA-878/2012]\n\n     fu.kZ; esa ,-M-3 egs'kdqekj 'kekZ dh lk{; ls lacaf/kr okgu dh nq?kZVuk esa\n     fyIrrklafnX/k gS rFkk v/khuLFk U;k;ky; ds fu.kZ; ls ;g Hkh izdV gksrkgS fd\n     vuqla/kku ds i'pkr iqfyl }kjk okgu dks nq?kZVuk esa fyIrekus tkus ds ckn\n     vkjksi i= izLrqr fd;k x;k gS rFkk mDrvuqla/kku o vkjksi i= dks nq?kZVuk esa\n     okgu dh fyIrrk ugha gksusds ifj.kkeLo:i pqukSrh fn;k tkuk Hkh izdV ugha\n     gksrk gSA\n\n     8 bl U;k;ky; dh jk; esa ;fn okgu dks nq?kZVuk esa feF;k :i ls fyIr\n     fd;k gksuk ekuk tk, rks ml dze esa chek dEiuh dh vksj ls vuqla/kku\n     vf/kdkjh dks U;k;ky; esa ryc djkdj mldk ijh{k.k djok;k tkuk\n     vko';d Fkk] ysfdu v/khuLFk U;k;ky; ds fu.kZ; o rF;ksa ls vuqla/kku\n     vf/kdkjh dks ryc fd;k tkdj lk{; jsdMZ fd;k tkuk izdV ugha gksrk\n     gSA ,slh fLFkfr esa vuqla/kku ds ifj.kke ds dze esa v/khuLFk( U;k;ky; }kjk\n     fu.kZ; ikfjr fd;k x;k gS] mlesa fdlh izdkj dh =qfV ugha gSA\n\n     11 mijksDrkuqlkj iqfyl vuqla/kku] vuqla/kku esa miyC/k nLrkosth lk{;]\n     okgu Lokeh dks fn;s x;s uksfVl ds lkFk&lkFkp'enhn xokg dk U;k;ky; esa\n     ijh{k.k djus o izLrqr lk{; dkchek dEiuh dh vksj ls [k.Mu ds vHkko ,oa\n     fook|d la[;k&1 ds dze esa okgu dh nq?kZVuk esa fyIrrk ds ckcr v/khuLFk\n     U;k;ky; ustks fu"d"kZ fudkyk x;k gS] og iw.kZr% U;k;ksfpr gSA "\n\n(III) National Insurance Co. Ltd. vs. Sinitha & Ors. reported in\n\n2012 AIR (SCW) 10, relevant para no.19 whereof reads as\n\nunder :-\n           "19. To substantiate his second contention, it would be\n     essential for the petitioner to establish, that Shijo having\n     occupied the shoes of the owner, cannot be treated as the\n     third party. Only factual details brought on record through\n     reliable evidence, can discharge the aforesaid onus. During\n     the course of hearing, despite our queries, learned counsel\n     for the petitioner could not point out the relationship\n     between Shijo and the owner of the motorcycle involved in\n     the accident. Shijo is not shown to be the employee of the\n     owner. He was not even shown as the representative of the\n     owner. In order to establish the relationship between the\n     Shijo and the owner, the petitioner-Insurance Company could\n     have easily produced either the owner himself as a witness,\n     or even the claimants themselves as witnesses. These, or\n     other witnesses, who could have brought out the relationship\n     between the owner and Shijo, were not produced by the\n\n                      (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                             (16 of 28)               [CMA-878/2012]\n\n\n     petitioner herein, before the Tribunal. The petitioner has,\n     therefore, not discharged the onus which rested on its\n     shoulders. Since the relationship between the Shijo and the\n     owner has not been established, nor the capacity in which he\n     was riding the vehicle has been brought out, it is not\n     possible for us to conclude, that Shijo while riding the\n     motorcycle on the fateful day, was an agent, employee or\n     representative of the owner. It was open to the petitioner to\n     defeat the claim for compensation raised by the respondents\n     by establishing, that the rider Shijo represented the owner,\n     and as such, was not a third party, in terms of the judgment\n     rendered by this Court in Oriental Insurance Company\n     Limited case (supra). The petitioner failed to discharge the\n     said onus. In view of the above, it is not possible for us to\n     accede to the second contention advanced at the hands of\n     the learned counsel for the petitioner."\n\n\n(IV) National Insurance Co. Ltd. vs. Smt. Pushpa Rana & Ors.\n\nreported in (2009) ACJ 287, relevant para no.11 whereof reads as\n\nunder :-\n           "11. The last contention of the appellant insurance\n     company is that the respondents claimants should have\n     proved negligence on the part of the driver and in this regard\n     the counsel has placed reliance on the Judgment of the\n     Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v.\n     Meena Variyal MANU/SC/7265/2007MANU/SC/7265/2007 :\n     AIR2007SC1609 . On perusal of the award of the Tribunal, it\n     becomes clear that the wife of the deceased had produced (i)\n     certified copy of the criminal record of criminal case in FIR\n     No. 955/2004, pertaining to involvement of the offending\n     vehicle,   (ii)     criminal        record       showing      completion   of\n     investigation of police and issue of charge sheet underSection 279/304-A, IPC against the driver; (iii) certified copy\n     of FIR, wherein criminal case against the driver was lodged;\n     and (iv) recovery memo and mechanical inspection report of\n     offending vehicle and vehicle of the deceased. These\n\n\n                       (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                           (17 of 28)                    [CMA-878/2012]\n\n\n      documents are sufficient proofs to reach the conclusion that\n      the driver was negligent. Proceedings underMotor Vehicles\n      Actare not akin to proceedings in a civil suit and hence strict\n      rules of evidence are not required to be followed in this\n      regard. Hence, this contention of the counsel for the\n      appellant also falls face down. There is ample evidence on\n      record to prove negligence on the part of the driver."\n\n\n(V)   National Insurance Co. Ltd. vs. Smt. Pushpa Rana & Ors.\n\nreported in (2009) ACJ 287, relevant portion of para no.17\n\nwhereof reads as under :-\n\n\n            "...True it is the FIR has not been formally proved, nor\n      formally tendered in evidence, but then the fact remains\n      that, from the perusal of the record it is clear that the\n      certified   copy     has    been       produced            by   the   claimants\n      themselves, and in view of the jdugment of this Court, in is\n      A.S.R.T.C. v. Nand Kishore, reported in 2002 ACJ 1564,\n      which proceeds on the basis of the judgment of Hon'ble\n      Supreme      Court     Madamanchi             Fiamappa          v.    Muthalum\n      Bojjappa, reported in AIR 1963 SC 1633, that if the\n      document is certified copy of the public document, it need\n      not be proved by calling a witness, and that strict rules ofEvidence Actare not to be insisted on by the Tribunal having\n      limited jurisdiction. It has also been observed in Nand\n      Kishore's case that the Tribunal, while dealing with the case\n      of compensation of motor vehicles accident, are to allow\n      such summary procedure as it thought fit, and the certified\n      copy of the FIR, inspection map and site inspection memo,\n      Panchhnama, injury report, or the postmortem report, as the\n      case may be and, other relevant documents prepared by the\n      police or the doctor, while discharging official duty are\n      admissible in evidence without there being a formal proof. In\n      that view of the matter it is overwhelmingly clear that, at the\n      time of accident the vehicle was being used for carrying\n      passengers for hire and reward."\n\n\n                     (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                           (18 of 28)                 [CMA-878/2012]\n\n\n\n\n(VI) Mangla Ram vs. Oriental Insurance Co. Ltd. reported in 2018\n\n(1) RAR 135 (SC), relevant paras no.16(15), 19, 20 & 21 whereof\n\nread as under :-\n\n          "16. ...While dealing with a similar situation, this Court\n     in Bimla Devi (supra) observed thus:-\n          15. In a situation of this nature, the Tribunal has rightly\n          taken a holistic view of the matter. It was necessary to\n          be borne in mind that strict proof of an accident caused\n          by a particular bus in a particular manner may not be\n          possible to be done by the claimants. The claimants\n          were merely to establish their case on the touchstone\n          of preponderance of probability. The standard of proof\n          beyond reasonable doubt could not have been applied.\n          For the said purpose, the High Court should have taken\n          into consideration the respective stories set forth by\n          both the parties.\n\n\n          19.   In     Dulcina        Fernandes           (supra),    this   Court\n     examined similar situation where the evidence of claimant's\n     eyewitness was discarded by the Tribunal and that the\n     Respondent in that case was acquitted in the criminal case\n     concerning the accident. This Court, however, opined that it\n     cannot be overlooked that upon investigation of the case\n     registered against the Respondent, prima facie, materials\n     showing negligence were found to put him on trial. The Court\n     restated the settled principle that the evidence of the\n     claimants ought to be examined by the Tribunal on the\n     touchstone of preponderance of probability and certainly the\n     standard of proof beyond reasonable doubt could not have\n     been applied as noted in Bimla Devi (supra). In paragraphs 8\n     & 9, of the reported decision, the dictum in United India\n     Insurance Co. Ltd. v. Shila Datta (2011) 10 SCC 509, has\n     been adverted to as under:\n\n\n\n\n                     (Downloaded on 16/09/2020 at 08:50:56 PM)\n                                    (19 of 28)             [CMA-878/2012]\n\n\n     "8. In United India Insurance Co. Ltd. v. Shila Datta\n     while considering the nature of a claim petition under\n     theMotor Vehicles Act, 1988a three-Judge Bench of\n     this Court has culled out certain propositions of which\n     Propositions (ii), (v) and (vi) would be relevant to the\n     facts of the present case and, therefore, may be\n     extracted hereinbelow: (SCC p. 518, para 10)\n           10. (ii) The Rules of the pleadings do not strictly\n     apply as the claimant is required to make an\n     application in a form prescribed under the Act. In fact,\n     there is no pleading where the proceedings are suo\n     motu initiated by the Tribunal.\n           ***(v) Though the Tribunal adjudicates on a claim\n     and determines the compensation, it does not do so as\n     in an adversarial litigation. ...(vi) The Tribunal is required to follow such\n     summary procedure as it thinks fit. It may choose one\n     or more persons possessing special knowledge of and\n     matters relevant to inquiry, to assist it in holding the\n     enquiry.9. The following further observation available in\n     para 10 of the Report would require specific note:(Shila Datta case, SCC p. 519)10. ... We have referred to the aforesaid provisions\n     to show that an award by the Tribunal cannot be seen\n     as an adversarial adjudication between the litigating\n     parties to a dispute, but a statutory determination of\n     compensation on the occurrence of an accident, after\n     due enquiry, in accordance with the statute.In paragraph 10 of the reported decision [Dulcina\nFernandes and Ors. (supra)], the Court opined that non-\nexamination of witness per se cannot be treated as fatal to\nthe claim set up before the Tribunal. In other words, the\napproach of the Tribunal should be holistic analysis of the\nentire pleadings and evidence by applying the principles of\npreponderance of probability.20. In the above conspectus, the Appellant is justified\nin contending that the High Court committed manifest error\nin reversing the holistic view of the Tribunal in reference to\nthe statements of witnesses forming part of the charge-\nsheet, FIR, Jeep Seizure Report in particular, to hold that(Downloaded on 16/09/2020 at 08:50:56 PM)(20 of 28)             [CMA-878/2012]\n\n\nJeep No. RST-4701 driven by Respondent No. 2 was involved\nin the accident in question. Indeed, the High Court was\nimpressed by the Mechanical Investigation Report (Exh. 5)\nwhich stated that only a scratch mark on the mudguard of\nthe left tyre of the vehicle had been noted. On that basis, it\nproceeded to observe that the same was in contradiction to\nthe claim of the Appellant (claimant), ruling out the\npossibility of involvement of the vehicle in the accident. This\nconclusion is based on surmises and conjectures and also in\ndisregard of the relevant fact that the vehicle was seized by\nthe police after investigation, only after one month from the\ndate of the accident and the possibility of the same having\nbeen repaired in the meantime could not be ruled out. In\nother words, the reasons which weighed with the High Court\nfor reversing the finding of fact recorded by the Tribunal\nupon holistic analysis of the entire evidence, about the\ninvolvement of Jeep No. RST-4701 in the accident, cannot be\ncountenanced. For, those reasons do not affect the other\noverwhelming circumstances and evidence which has come\non record and commended to the Tribunal about the\ninvolvement of the subject jeep in the accident in question.\nThis being the main edifice, for which the High Court allowed\nthe appeal preferred by Respondent Nos. 2 & 3, it must\nnecessarily follow that the finding of fact recorded by the\nTribunal on the factum of involvement of Jeep No. RST-4701\nin the accident in question will have to be restored for\nreasons noted hitherto.21. Another reason which weighed with the High Court to\ninterfere in the First Appeal filed by Respondent Nos. 2 & 3,\nwas absence of finding by the Tribunal about the factum of\nnegligence of the driver of the subject jeep. Factually, this\nview is untenable. Our understanding of the analysis done by\nthe Tribunal is to hold that Jeep No. RST-4701 was driven\nrashly and negligently by Respondent No. 2 when it collided\nwith the motorcycle of the Appellant leading to the accident.\nThis can be discerned from the evidence of witnesses and(Downloaded on 16/09/2020 at 08:50:56 PM)(21 of 28)                  [CMA-878/2012]\n\n\n     the contents of the charge-sheet filed by the police, naming\n     Respondent No. 2. This Court in a recent decision in Dulcina\n     Fernandes (supra), noted that the key of negligence on the\n     part of the driver of the offending vehicle as set up by the\n     claimants was required to be decided by the Tribunal on the\n     touchstone of preponderance of probability and certainly not\n     by standard of proof beyond reasonable doubt. Suffice it to\n     observe that the exposition in the judgments already\n     adverted to by us, filing of charge-sheet against Respondent\n     No. 2 prima facie points towards his complicity in driving the\n     vehicle negligently and rashly. Further, even when the\n     Accused were to be acquitted in the criminal case, this Court\n     opined that the same may be of no effect on the assessment\n     of the liability required in respect of motor accident cases by\n     the Tribunal. Reliance placed upon the decisions in Minu B\n     Mehta   (supra)     and      Meena         Variyal        (supra),   by   the\n     Respondents, in our opinion, is of no avail. The dictum in\n     these cases is on the matter in issue in the concerned case.\n     Similarly, even the dictum in the case of Surender Kumar\n     Arora (supra) will be of no avail. In the present case,\n     considering the entirety of the pleadings, evidence and\n     circumstances on record and in particular the finding\n     recorded by the Tribunal on the factum of negligence of the\n     Respondent No. 2, the driver of the offending jeep, the High\n     Court committed manifest error in taking a contrary view\n     which, in our opinion, is an error apparent on the face of\n     record and manifestly wrong."(VII) Sunita and others. vs. Rajasthan State Road Transport\n\nCorporation and another reported in AIR 2019 SC 994, relevant\n\nparas no.21, 23, 25, 28 & 31 whereof reads as under :-"21. In the present case, we find that the Tribunal had\n     followed a just approach in the matter of appreciation of the\n     evidence/materials on record. Whereas, the High Court\n     adopted a strict interpretation of the evidence on the(Downloaded on 16/09/2020 at 08:50:56 PM)(22 of 28)                 [CMA-878/2012]\n\n\ntouchstone of proof beyond reasonable doubt to record an\nadverse finding against the appellants and to reverse the\nwell considered judgment of the Tribunal in a cryptic manner.23. The Tribunal had justly accepted the appellants'\ncontention that the respondents did not challenge the\npropriety of the said FIR No. 247/2011 (Exh. 1) and charge\nsheet (Exh. 2) before any authority. The only defence raised\nby the respondents to this plea was that the said FIR No.\n247/2011 was based on wrong facts and was filed in\nconnivance between the appellants/complainants and the\npolice, against which the respondents complained to the in\ncharge of the police station and the District Superintendent\nof Police but to no avail. Apart from this bald assertion, no\nevidence was produced by the respondents before the\nTribunal to prove this point. The filing of the FIR was\nfollowed by the filing of the chargesheet against respondent\nNo.2 for offences under u/Sections 279,337and304Aof the\nIPC   andSections     134/187of    the     Act,   which,   again,\nreinforces the allegations in the said FIR insofar as the\noccurrence of the accident was concerned and the role of\nrespondent No.2 in causing such accident. Be that as it may,\nthe High Court has not even made a mention, let alone\nrecord a finding, of any impropriety against FIR 247/2011\n(Exh. 1) or chargesheet (Exh. 2) or the conclusion reached\nby the Tribunal in that regard. Yet, the FIR and the Charge\nsheet has been found to be deficient by the High Court.25. The Tribunal's reliance upon FIR 247/2011 (Exh. 1)\nand chargesheet (Exh. 2) also cannot be faulted as these\ndocuments indicate the complicity of respondent No.2. The\nFIR and chargesheet, coupled with the other evidence on\nrecord, inarguably establishes the occurrence of the fatal\naccident and also point towards the negligence of the\nrespondent No.2 in causing the said accident. Even if the\nfinal outcome of the criminal proceedings against respondent\nNo.2 is unknown, the same would make no difference atleast(Downloaded on 16/09/2020 at 08:50:56 PM)(23 of 28)                   [CMA-878/2012]\n\n\nfor the purposes of deciding the claim petition under the Act.\nThis Court in Mangla Ram (supra), noted that the nature of\nproof required to establish culpability under criminal law is\nfar higher than the standard required under the law of torts\nto create liability.28. Clearly, the evidence given by Bhagchand withstood\nthe respondents' scrutiny and the respondents were unable\nto shake his evidence. In turn, the High Court has failed to\ntake note of the absence of cross examination of this witness\nby the respondents, leave alone the Tribunal's finding on the\nsame,    and     instead,       deliberated         on       the   reliability   of\nBhagchand's (A.D.2) evidence from the viewpoint of him not\nbeing named in the list of eye witnesses in the criminal\nproceedings, without even mentioning as to why such\nabsence from the list is fatal to the case of the appellants.\nThis approach of the High Court is mystifying, especially in\nlight of this Court's observation [as set out in Parmeshwari\n(supra) and reiterated in Mangla Ram (supra)] that the strict\nprinciples of proof in a criminal case will not be applicable in\na claim for compensation under the Act and further, that the\nstandard    to    be     followed        in    such      claims      is   one    of\npreponderance of probability rather than one of proof beyond\nreasonable doubt. There is nothing in the Act to preclude\nciting of a witness in motor accident claim who has not been\nnamed in the list of witnesses in the criminal case. What is\nessential is that the opposite party should get a fair\nopportunity to cross examine the concerned witness. Once\nthat is done, it will not be open to them to complain about\nany prejudice caused to them. If there was any doubt to be\ncast on the veracity of the witness, the same should have\ncome out in cross examination, for which opportunity was\ngranted to the respondents by the Tribunal.31. Similarly, the issue of nonexamination of the pillion\nrider, Rajulal Khateek, would not be fatal to the case of the\nappellants. The approach in examining the evidence in(Downloaded on 16/09/2020 at 08:50:56 PM)(24 of 28)                      [CMA-878/2012]\n\n\n     accident claim cases is not to find fault with non examination\n     of some "best" eye witness in the case but to analyse the\n     evidence already on record to ascertain whether that is\n     sufficient to answer the matters in issue on the touchstone of\n     preponderance     of     probability.        This         court,    in   Dulcina\n     Fernandes (supra), faced a similar situation where the\n     evidence of claimant's eyewitness was discarded by the\n     Tribunal and the respondent was acquitted in the criminal\n     case concerning the accident. This Court, however, took the\n     view that the material on record was prima facie sufficient to\n     establish that the respondent was negligent. In the present\n     case, therefore, the Tribunal was right in accepting the claim\n     of the appellants even without the deposition of the pillion\n     rider, Rajulal Khateek, since the other evidence on record\n     was good enough to prima facie establish the manner in\n     which the accident had occurred and the identity of the\n     parties involved in the accident."(VIII)    Bimla Devi and others. vs. Himachal Road Transport\n\nCorporation and others reported in 2009 AIR (SCW) 4298,\n\nrelevant paras no.14 & 15 whereof read as under :-"14. The learned Tribunal, in our opinion, has rightly\n     proceeded on the basis that apparently there was absolutely\n     no reason to falsely implicate the respondent Nos. 2 and 3.\n     Claimant was not at the place of occurrence. She, therefore,\n     might not be aware of the details as to how the accident\n     took place but the fact that the First Information Report had\n     been lodged in relation to an accident could not have been\n     ignored.   Some    discrepancies          in    the       evidences      of   the\n     claimant's witnesses might have occurred but the core\n     question before the Tribunal and consequently before the\n     High Court was as to whether the bus in question was\n     involved in the accident or not. For the purpose of\n     determining the said issue, the Court was required to apply\n     the principle underlying burden of proof in terms of the\n     provisions ofSection 106of the Indian Evidence Act as to(Downloaded on 16/09/2020 at 08:50:56 PM)(25 of 28)             [CMA-878/2012]\n\n\n     whether a dead body wrapped in a blanket had been found\n     at the spot at such an early hour, which was required to be\n     proved by the respondent Nos. 2 and 3.15. In a situation of this nature, the Tribunal has rightly\n     taken a holistic view of the matter. It was necessary to be\n     borne in mind that strict proof of an accident caused by a\n     particular bus in a particular manner may not be possible to\n     be done by the claimants. The claimants were merely to\n     establish their case on the touchstone of preponderance of\n     probability. The standard of proof beyond reasonable doubt\n     could not have been applied. For the said purpose, the High\n     Court should have taken into consideration the respective\n     stories set forth by both the parties."(IX) Vimla Devi and others. vs. National Insurance Co. Ltd. and\n\nothers reported in 2018 DNJ (SC) 1400, relevant para no.16\n\nwhereof reads as under :-"16. At the outset, we may reiterate as has been\n     consistently said by this Court in a series of cases that the\n     Act is a beneficial piece of legislation enacted to give solace\n     to the victims of the motor accident who suffer bodily injury\n     or die untimely.The Actis designed in a manner, which\n     relieves the victims from ensuring strict compliance provided\n     in law, which are otherwise applicable to the suits and other\n     proceedings while prosecuting the claim petition filed under\n     the Act for claiming compensation for the loss sustained by\n     them in the accident."6.        After hearing learned counsel for the parties and\n\nperusing the record of the case, this Court finds that the thrust of\n\nthe arguments of learned counsel for the appellant insurance\n\ncompany was upon the implication of the vehicle in question i.e.\n\njeep no.RJ-19C-9710 being doubtful as though the accident(Downloaded on 16/09/2020 at 08:50:56 PM)(26 of 28)             [CMA-878/2012]\n\n\n\nhappened on 11.7.2009 and the FIR was lodged against an\n\nunknown vehicle on 12.7.2009, there is no vehicle in picture until\n\n3.9.2009 when the fard jabti was prepared at the instance of the\n\ndriver who brought the vehicle in question to the police station\n\nand on the same day, the notice underSection 133of the Motor\n\nVehicles Act (Ex.9) was given. Though the precedent law relied\n\nupon by the learned counsel for the appellant insurance company\n\nclearly required the learned Tribunal not to believe the criminal\n\nproceedings in totality and on the face value, the law regarding\n\nthe requirement of the learned Tribunal to go into the facts and\n\ngive independent opinion in the criminal trial, is quite clear. In the\n\ngiven facts and circumstances, this Court takes note of the fact\n\nthat the insurance company has miserably failed to refute the\n\nprosecution story. The precedent law of Yugal Kishore Sharma\n\n(supra) clearly lays down that in case the prosecution story has to\n\nbe refuted, then the investigating officer ought to be called by the\n\ninsurance company and the insurance company need to produce\n\nsufficient documentary evidence that the investigation done by the\n\ninvestigating officer was not correct.In the present case, there is no indication to reflect that the\n\ninvestigating officer was ever called or any document whatsoever\n\nwas led by the insurance company to refute the prosecution story.This Court takes note of the fact that once the documents\n\nprepared by the police authorities wherein challan was filed\n\nagainst the driver of the vehicle and which documents have been\n\nheld to be admissible in evidence by this Court inR.S.R.T.C. vs.\n\nNand Lal, ACTC2001 (Raj.) 489, the burden shifted on the\n\ninsurance company, owner and driver of the vehicle. The insurance\n\ncompany in the present case has not called any witnesses so as to(Downloaded on 16/09/2020 at 08:50:56 PM)(27 of 28)             [CMA-878/2012]\n\n\n\nquestion the implication of the vehicle in question. The learned\n\nTribunal had no reason not to accept the story given by the\n\nclaimants supported by the charge-sheet filed by the police. The\n\ncharge-sheet filed by the police is an unrefuted document. The\n\ninsurance company has made no efforts whatsoever to counter the\n\nsame or to produce any documentary evidence or to call the\n\ninvestigating officer or any person, which could discharge the\n\nburden of proof which shifted upon the insurance company due to\n\nthe preponderance of possibility. Thus, no interference is called for\n\nin the impugned judgment at the instance of the appellant\n\ninsurance company.7.         In view of the above, the appeal of the Insurance\n\nCompany no.878/2012, having no merits, is hereby dismissed.8.         Learned counsel for the claimants in the appeal seeking\n\nenhancement of the compensation submitted that there is no\n\nadversity regarding factual matrix of the case arrived at by the\n\nlearned Tribunal and he does not press the challenge on merits\n\nbut prays that the ends of justice would be met if on the factual\n\nmatrix arrived at by the learned Tribunal, the award is revisited\n\nwhile adhering to the judgment of the Hon'ble Supreme Court in\n\nthe case ofNational Insurance Company Limited Vs. Pranay\n\nSethi & Ors.; AIR 2017 SC 5157.9.         At the same time while considering the claimants'\n\nappeal no.639/2012, this Court is of the opinion that the limited\n\nprayer of adhering to the Pranay Sethi guidelines (supra) deserves\n\nto be accepted.10.In view of the above, learned counsel for the parties\n\nwere asked to jointly submit the calculation afresh as per the(Downloaded on 16/09/2020 at 08:50:56 PM)(28 of 28)             [CMA-878/2012]\n\n\n\n                                   judgment ofPranay Sethi(supra). Learned counsel have furnished\n\n                                   the calculation afresh before this Court, which reads as follows:-Age of the Deceased                           49 years.Multiplier                                    13Future Prospects                              30%\n                                   Deduction on count of Personal Expenses       1/4\n                                   (4 dependents)\n                                   Monthly Income of the Deceased                14,125/-\n                                   Yearly income of the deceased                 1,69,500./-\n                                   Yearly income after deducting income tax      1,68,550/-\n                                   (169500 - 950)\n                                   Yearly Income after adding Future             2,19,115/-\n                                   Prospects (30% of 1,68,550/- = 50,565/-)\n                                   Yearly Income after deducting Personal        1,64,336/-\n                                   Expenses (1/45 of 2,19,115= 54,778)\n                                   Total Income after applying Multiplier of     21,36,368/-13Other Conventional Heads                      70,000/-\n                                   Total Compensation                            22,06,368/-\n                                   Compensation awarded by Tribunal              16,67,625/-\n                                   Enhanced Compensation.                        5,38,743/-11.In light of the precedent law ofNational Insurance\n\n                                   Company Ltd Vs. Pranay Sethi(supra), the enhanced award of\n\n                                   Rs.5,38,743/- is granted which shall be payable along with\n\n                                   interest @ 6% per annum from the date of filing of claim petition\n\n                                   till actual payment is made. The enhanced amount is to be paid\n\n                                   within three months from today, failing which the same shall carry\n\n                                   interest @ 9% per annum for the subsequent period (i.e. after\n\n                                   three months from today) till actual payment is made.12.          The appeal no.639/2012 is accordingly disposed of.13.          All pending applications also stand disposed of.(DR. PUSHPENDRA SINGH BHATI),J\n\n                                    SPhophaliya/-(Downloaded on 16/09/2020 at 08:50:56 PM)Powered by TCPDF (www.tcpdf.org)