High Court · 2025 on 02 Jul 2025

Judgment

1. Heard Shri Mahendra Kumar Mishra, learned counsel for the appellant and Shri Satish Kumar learned counsel appearing for the claimants- respondents no.1 to 4. None has put in appearance on behalf of the respondents no.5 and 6. The record indicates that vide office report dated

23.10.2018 service on the respondents no.5 and 6 was deemed sufficient.

2. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act 1988 against the impugned judgment and award dated

09.02.2018 passed in Claim Petition No.324 of 2013 wherein in a death case the Tribunal has awarded a sum of Rs.19,08,190/- alongwith 7% interest in favour of the claimant-respondents no.1 to 4.

3. Briefly the facts giving rise to the instant appeal are as under:-

3.1. On 02.05.2013 at around 7.00 P.M. Shyam Narain Tiwari (deceased) and his son Devendra Tiwari were returning home on their T.V.S. Moped. As soon as they reached near Khandoospur and were near the house, a tractor bearing number U P 44 S-9304, which was being driven rashly and negligently, hit the moped. As a consequence, Shyam Narain Tiwari sustained grievous injuries and he expired. An F.I.R. in respect of the said incident was lodged on 09.05.2013 and after investigation, a chargesheet was filed on 07.06.2013. - 2 -

3.2. The claim petition bearing No.324 of 2013 came to be filed in the month of September, 2013 claiming compensation for the death of Shyam Narain Tiwari.

3.3 The claim petition came to be contested by the owner and the driver who had filed their joint written statement dated 07.03.2014, wherein the occurrence of the accident was denied. However, it was further stated that in so far as Tractor number U.P. 44 S-9304 is concerned, the same was duly insured with the Cholamandlam M. S. General Insurance Company Limited and the driver of the Tractor also had a valid and a subsisting driving license. It was further stated that though the compensation sought was inflated but nevertheless even if the award is made, it ought to may be against the Insurance Company as the Tractor was duly insured.

3.4 The Insurance Company also filed their separate written statement and they denied that the vehicle number U.P. 44 S-9304, a, Tractor with Trolley was not insured. They had pleaded their general defence that unless and until it is proved that the said Tractor was being plied in terms of the policy conditions, the Insurance Company cannot be saddled with the burden of the compensation and in such circumstances, it would be the owner of the vehicle who would be liable for the compensation.

4. Upon exchange of the pleadings, the Tribunal framed five issues. Parties led their evidences and thereafter the Tribunal found that the accident had occurred on account of rash and negligent driving of the Tractor bearing number U.P. 44 S-9304. It also recorded a finding that the Tractor was duly insured and the driver had a valid and a subsisting license. It went on to assess the compensation and thereafter awarded a total sum of Rs.19,08,190 - 3 - alongwith 7% vide award dated 09.02.2018 which is under challenge in this appeal.

Shri Mishra, learned counsel for the Insurance Company has vehemently urged that the Tribunal was indifferent to the material available on record; inasmuch as the F.I.R. of the incident lodged on 09.05.2013 by Devendra Tiwari wherein the claimant had clearly stated in the F.I.R. that the accident occurred with a Tractor which was of the brand 'Swaraj' and it was being driven by Pahari. No registration number of the Tractor was disclosed in the F.I.R. However, when the claim petition came to be filed in September 2013, it is at that point of time that the claimants stated that the Tractor involved was having registration number U.P. 44 S-9304 which was of 'Taffee' brand and it was being driven by Nesar Ahmad.

6. The crux of the submission of the counsel for the appellant is that there was a complete reversal of the stand which was indicated in the F.I.R. to the one stated in the claim petition which clearly indicated that the aforesaid vehicle was being unnecessarily dragged for seeking compensation. It is also urged that theory of the driver was also impvoed inasmuch as earlier it was mentioned that it was being driven by Pahari and then it was stated that it was being driven by Nesar Ahmad and perhaps the owner and the driver were in collusion with the claimants and in such circumstances where the occurrence of the accident itself was doubtful especially noticing the details as mentioned in the F.I.R. vis-a-vis the averments made in the claim petition but this aspect has not been appropriately considered by the Tribunal rather it has been brushed aside by a cursory finding and the same cannot be sustained in law. - 4 -

7. The other limb of the submission of the learned counsel for the appellant is that even if at all it is considered that the accident occurred with the vehicle in question i.e. U.P. 44 S-9304 but the fact remains that the license of the driver namely Nesar Ahmad was only for the purposes of a Tractor and there was ample evidence available on record to indicate that the said Tractor was being plied for commercial purposes as it had the Trolley, which was not insured and the said Trolley was being used to carry bricks.

8. The crux of the submission is that the Tractor was not being used for agricultural purposes and that patently was a violation of the policy condition and in these circumstance the award could not be saddled on the Insurance Company.

9. Learned counsel for the claimants-respondents has supported the award and it has been submitted that the respondent no.3, son of the deceased, was an eye witness who had clearly indicated the foundational fact regarding the occurrence of the accident and the death of his father in the accident was proved. It was not disputed that the Tractor was not involved or that in the accident in question Shyam Narain Tiwari did not die on account of the accident between the moped and the Tractor.

10. It is urged that at the time when the F.I.R. was lodged certain facts were not cleare, however, there were two important facts which were mentioned in the F.I.R. that the accident occurred with the Tractor wherein Shyam Narain Tiwari expired and that it was being driven by the driver.

11. It is urged that when the said eye witness was cross-examined, he clearly gave an answer clearly indicating that the said witness was present at the site and his deposition confirmed the occurrence. In so far as minor - 5 - discrepancies in the statement is concerned or a difference in the manner of narration of facts in the F.I.R. vis-a-vis the claim petition are concerned they were insignificant and it was not of such nature which could cast a cloud over the entire factual matrix.

12. It is further urged that in so far as the aforesaid plea as raised by the Insurance Company is concerned, the same could have at best been taken by the owner and the driver, who were joint tort feasors. However, they did not take any such plea except a bland denial of the occurrence of accident was urged that neither the driver was examined as a witness who could have been the best person to indicate the true and correct facts which could put the statement of the claimants under some doubt but in absence of producing the best witness neither the owner nor the Insurance Company who steps into the shoes of the owner can improve or take a better case than that was taken by the principle i.e. owner of the vehicle. In such circumstances, it is urged that the aforesaid appeal deserves to be dismissed.

13. The Court has considered the rival submissions and also perused the material on record.

14. Apparently, the only point for determination which is involved in the instant the appeal as to whether there was ample material for the Tribunal to hold that the Tractor bearing number U.P. 44 S-9304 was involved in the accident. As an off shoot,, it is also to be ascertained as to whether the Tractor was being plied in accordance with the policy condition so as to determine as to who was the responsible for paying the compensation.

15. Considering the first aspect of the matter and before proceedings further, it will be relevant to notice the observations of the Apex Court in the - 6 - case of Sunita and others Vs. Rajasthan State Road Transportation Corporation and another (20) 13 SCC 486 wherein the Apex Court has clearly delineated the manner in which the claim petitions have to be considered. The relevant portion reads as under:- "11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant’s predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a postmortem report vis-a-vis the averments made in a claim petition.

14. Some discrepancies in the evidence of the claimant’s witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.

15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.” (emphasis supplied) The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside.

23. Following the enunciation in Bimla Devi case, this Court in Parmeshwari vs. Amir Chand1 noted that when filing of the complaint was not disputed, the decision of the Tribunal ought not to have been reversed by the High Court on the ground that nobody came from the office of the SSP to prove the complaint. The Court appreciated 7 (2011) 11 SCC 635 21 the testimony of the eyewitnesses in paras 12 & 13 and observed thus: (Parmeshwari case, SCC p. 638) “12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of 1 (2011) 11 SCC 635 - 7 - the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor’s chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.

13. The other so-called reason in the High Court’s order was that as the claim petition was filed after four months of the accident, the same is “a device to grab money from the insurance company”. This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. …”

24. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. v. M. 2 , wherein it was contended by the vehicle owner that the Karumai Ammal criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in para 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus: (SCC pp. 458-59) “3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take 8 (1980) 3 SCC 457 special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider nofault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard.” 3 , this Court examined similar situation where the 25. In Dulcina Fernandes evidence of claimant’s eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning 2 3