Madhya Pradesh High Court
Shri Ram General Insurance Co. Ltd. … vs Smt. Kusum Bai on 21 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO.2025:MPHC-GWL:1285
1 M.A. No. 1814 of 2020
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 21st OF JANUARY, 2025
MISC. APPEAL No. 1814 of 2020
SHRI RAM GENERAL INSURANCE CO. LTD. REGISTERED OFFICE E8
EPIP RIICO INDUSTRIAL AREA SITAPURA JAIPUR
Versus
SMT. KUSUM BAI AND OTHERS
Appearance:
Shri Ashok Kumar Agrawal - Advocate for appellant.
Shri Kripal Singh Batham- Advocate for respondents No.1 to 6.
ORDER
This Misc. Appeal, under Section 173 of Motor Vehicles Act, has been filed
against the award dated 10.12.2019 passed by II Additional Motor Accident
Claims Tribunal, Karera, District Shivpuri (M.P.) in MACC No.36/2018.
2. It is submitted by counsel for appellant that in fact the offending vehicle
was subsequently brought into picture. The incident took place on 19.07.2018,
whereas FIR was lodged on 02.09.2018 and statements of witnesses were
recorded under Section 161 of Cr.P.C. on 03.09.2018. When the name of accused
came for the first time in the statements of witnesses which were recorded on
03.09.2018 then how the police could have mentioned the number of offending
vehicle in the FIR which was lodged on 02.09.2018. Furthermore, since FIR was
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delayed, therefore, the Claims Tribunal should have discarded the evidence of
Bhagwandas Singh Kushwah (PW-2) who claimed himself to be a pillion rider on
the motorcycle which was being driven by the deceased.
3. Respondents/claimants have filed cross-objection for enhancement of
compensation amount and have valued the cross-objection at Rs.2,00,000/- and it
is prayed that in place of compensation of Rs.15,50,000/-, Claims Tribunal should
have awarded compensation of Rs.17,50,000/-.
4. Heard learned counsel for the parties.
Whether the offending vehicle was deliberately implanted or not?
5. The contention of counsel for appellant is that FIR was lodged on
02.09.2018 whereas statements of witnesses were recorded on 03.09.2018.
Therefore, there was no occasion for the Police to mention the number of vehicle
in the FIR. It is prayed that Bhagwandas Singh Kushwah (PW-2) who claims
himself to be the pillion rider on the motorcycle which was being driven by
deceased had given his statement under Section 161 of Cr.P.C. on 03.09.2018. It
is submitted by counsel for appellant that Bhagwandas Singh did not sustain any
injury, therefore, his contention that he was the pillion rider is suspicious. It is
further submitted that deceased had no licence to drive the vehicle and therefore
the vehicle was being driven by the deceased in contravention of provisions of
Motor Vehicles Act and, thus, the Claims Tribunal has wrongly awarded
compensation in favour of the claimants. To challenge the evidence of
Bhagwandas Singh (PW-2), appellant has referred to the documents of criminal
investigation.
6. Now, the only question for consideration is as to whether claim petitions
can be decided on the basis of documents of criminal case or not?
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The Supreme Court in the case of Sunita and others Vs. Rajasthan
State Road Transport Corporation and others, reported in (2020) 13 SCC
486 has held as under :-
“21. We have no hesitation in observing that such a hypertechnical
and trivial approach of the High Court cannot be sustained in a
case for compensation under the Act, in connection with a motor
vehicle accident resulting in the death of a family member.
Recently, in Mangla Ram v. Oriental Insurance Co. Ltd. [Mangla
Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 : (2018) 3
SCC (Civ) 335 : (2018) 2 SCC (Cri) 819] (to which one of us,
Khanwilkar, J. was a party), this Court has restated the position as
to the approach to be adopted in accident claim cases. In that case,
the Court was dealing with a case of an accident between a
motorcycle and a jeep, where the Tribunal had relied upon the FIR
and charge-sheet, as well as the accompanying statements of the
complainant and witnesses, to opine that the police records
confirmed the occurrence of an accident and also the identity of
the offending jeep but the High Court had overturned [Pratap
Singh v. Mangla Ram, 2017 SCC OnLine Raj 3765] that finding
inter alia on the ground that the oral evidence supporting such a
finding had been discarded by the Tribunal itself and that reliance
solely on the document forming part of the police record was
insufficient to arrive at such a finding. Disapproving that
approach, this Court, after adverting to multitude of cases under
the Act, noted as follows: (Mangla Ram case [Mangla
Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 : (2018) 3
SCC (Civ) 335 : (2018) 2 SCC (Cri) 819] , SCC pp. 667-71, paras
22-25)
“22. The question is: Whether this approach of the High
Court can be sustained in law? While dealing with a similar
situation, this Court in Bimla Devi [Bimla Devi v. Himachal
RTC, (2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010)
1 SCC (Cri) 1101] noted the defence of the driver and
conductor of the bus which inter alia was to cast a doubt on
the police record indicating that the person standing at the
rear side of the bus, suffered head injury when the bus was
being reversed without blowing any horn. This CourtSignature Not Verified
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observed that while dealing with the claim petition in terms
of Section 166 of the Motor Vehicles Act, 1988, the Tribunal
stricto sensu is not bound by the pleadings of the parties, its
function is to determine the amount of fair compensation. In
paras 11-15, the Court observed thus: (SCC pp. 533-34)
’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 post-
mortem report vis-à-vis the averments made in a claim
petition.
12. The deceased was a constable. Death took place near a
police station. The post-mortem report clearly suggests that
the deceased died of a brain injury. The place of accident is
not far from the police station. It is, therefore, difficult to
believe the story of the driver of the bus that he slept in the
bus and in the morning found a dead body wrapped in a
blanket. If the death of the constable had taken place earlier,
it is wholly unlikely that his dead body in a small town like
Dharampur would remain undetected throughout the night
particularly when it was lying at a bus-stand and near a
police station. In such an event, the court can presume that
the police officers themselves should have taken possession
of the dead body.
13. The learned Tribunal, in our opinion, has rightly
proceeded on the basis that apparently there was absolutely
no reason to falsely implicate Respondents 2 and 3. The
claimant was not at the place of occurrence. She, therefore,
might not be aware of the details as to how the accident took
place but the fact that the first information report had been
lodged in relation to an accident could not have been ignored.
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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 [Bimla
Devi v. Himachal RTC, (2009) 13 SCC 530 : (2009) 5 SCC
(Civ) 189 : (2010) 1 SCC (Cri) 1101] , this Court
in Parmeshwari v. Amir Chand [Parmeshwari v. Amir Chand,
(2011) 11 SCC 635 : (2011) 4 SCC (Civ) 828 : (2011) 3 SCC
(Cri) 605] 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 [Amir Chand v. Parmeshwari,
2009 SCC OnLine P&H 9302] on the ground that nobody
came from the office of the SSP to prove the complaint. TheSignature Not Verified
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Court appreciated the testimony of the eyewitnesses in paras
12 & 13 and observed thus: (Parmeshwari
case [Parmeshwari v. Amir Chand, (2011) 11 SCC 635 :
(2011) 4 SCC (Civ) 828 : (2011) 3 SCC (Cri) 605] , SCC p.
638)
’12. The other ground on which the High Court dismissed
[Amir Chand v. Parmeshwari, 2009 SCC OnLine P&H 9302]
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.
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. Karumai Ammal [N.K.V. Bros. (P) Ltd. v. M.
Karumai Ammal, (1980) 3 SCC 457 : 1980 SCC (Cri) 774] ,
wherein it was contended by the vehicle owner that the
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:
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(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 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 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.’
25. In Dulcina Fernandes [Dulcina Fernandes v. Joaquim
Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 :
(2014) 1 SCC (Cri) 13] , this Court examined similar situation
where the evidence of claimant’s eyewitness was discarded by
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in the criminal case concerning the accident. This Court,
however, opined that it cannot be overlooked that upon
investigation of the case registered against the respondent,
prima facie, materials showing negligence were found to put
him on trial. The Court restated the settled principle that the
evidence of the claimants ought to be examined by the
Tribunal on the touchstone of preponderance of probability
and certainly the standard of proof beyond reasonable doubt
could not have been applied as noted in Bimla Devi [Bimla
Devi v. Himachal RTC, (2009) 13 SCC 530 : (2009) 5 SCC
(Civ) 189 : (2010) 1 SCC (Cri) 1101] . In paras 8 & 9 of the
reported decision, the dictum in United India Insurance Co.
Ltd. v. Shila Datta [United India Insurance Co. Ltd. v. Shila
Datta, (2011) 10 SCC 509 : (2012) 3 SCC (Civ) 798 : (2012)
1 SCC (Cri) 328] , has been adverted to as under: (Dulcina
Fernandes case [Dulcina Fernandes v. Joaquim Xavier Cruz,
(2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1 SCC
(Cri) 13] , SCC p. 650)
‘8. In United India Insurance Co. Ltd. v. Shila
Datta [United India Insurance Co. Ltd. v. Shila Datta,
(2011) 10 SCC 509 : (2012) 3 SCC (Civ) 798 : (2012) 1
SCC (Cri) 328] while considering the nature of a claim
petition under the Motor Vehicles Act, 1988 a three-Judge
Bench of this Court has culled out certain propositions of
which Propositions (ii), (v) and (vi) would be relevant to the
facts of the present case and, therefore, may be extracted
hereinbelow: (SCC p. 518, para 10)
“10. … (ii) The rules of pleadings do not strictly apply as
the claimant is required to make an application in a form
prescribed under the Act. In fact, there is no pleading where
the proceedings are suo motu initiated by the Tribunal.
***
(v) Though the Tribunal adjudicates on a claim and determines
the compensation, it does not do so as in an adversarial
litigation. …
(vi) The Tribunal is required to follow such summary
procedure as it thinks fit. It may choose one or more persons
possessing special knowledge of and matters relevant to
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inquiry, to assist it in holding the enquiry.”
9. The following further observation available in para 10 of
the Report would require specific note: (Shila Datta
case [United India Insurance Co. Ltd. v. Shila Datta, (2011)
10 SCC 509 : (2012) 3 SCC (Civ) 798 : (2012) 1 SCC (Cri)
328] , SCC p. 519)
“10. … We have referred to the aforesaid provisions to show
that an award by the Tribunal cannot be seen as an adversarial
adjudication between the litigating parties to a dispute, but a
statutory determination of compensation on the occurrence of
an accident, after due enquiry, in accordance with the
statute.”‘
In para 10 of Dulcina Fernandes [Dulcina
Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 :
(2014) 1 SCC (Civ) 73 : (2014) 1 SCC (Cri) 13] , the Court
opined that non-examination of witness per se cannot be
treated as fatal to the claim set up before the Tribunal. In other
words, the approach of the Tribunal should be holistic analysis
of the entire pleadings and evidence by applying the principles
of preponderance of probability.”
22. It is thus 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 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
preponderance of probability and not the strict standard of
proof beyond all reasonable doubt which is followed in
criminal cases.”
Thus, it is clear that claim petitions cannot be decided on the basis of
documents of criminal case only and they have to be decided on the basis of
material as well as evidence which is led before the Claims Tribunal.
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Furthermore, the documents collected during investigation and opinion formed by
the investigating officer is not binding on the Motor Accident Claims Tribunal.
Even otherwise, as per the provisions of Cr.P.C./BNSS, the material collected by
the Police during investigation is not a substantive piece of evidence and only the
evidence which is led before the Court can be said to be a substantive piece of
evidence.
7. Counsel for appellant was directed to point out the discrepancy from the
evidence of Bhagwandas Singh Kushwah (PW-2) to show that he was not a
pillion rider and he had not seen the incident. Except mentioning that FIR was
lodged belatedly after two months, no other argument has been advanced.
8. So far as aforesaid submission with regard to delayed FIR is concerned, it
is clear that Dr. Hirat Kishore, Vedansh Hospital in front of Madhav Dispensary
sent a Marg Intimation to Police Station Kampoo, District Gwalior (M.P.) on
22.07.2018 with regard to death of Padam Parihar. Police Station, Kampoo
transmitted the Marg Intimation to Police Station Narwar, District Shivpuri (M.P.)
who conducted an enquiry and after recording statements of witnesses under
Section 174 of Cr.P.C. lodged the FIR on 02.09.2018. The matter was already
pending for enquiry before the police. If the police committed some delay in
concluding the Marg Enquiry, then the evidence of witnesses cannot be said to
unreliable merely on the said ground, unless and until there are material
discrepancies in the evidence led by the witnesses in the Trial. Since FIR was
lodged on the basis of statements of witnesses recorded under Section 174 of
Cr.P.C., therefore, contention of counsel for appellant that once the statements of
witnesses were recorded under Section 161 of Cr.P.C. on 03.09.2018, therefore,
there was no occasion for the police to mention the number of offending vehicle
in the FIR which was recorded on 02.09.2018, is misconceived and is hereby
rejected.
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9. Since appellant could not point out any material discrepancy in the
evidence of Bhagwandas Singh Kushwah (PW-2) and since Bhagwandas Singh
Kushwah (PW-2) was the pillion rider and he had witnessed the incident,
therefore, it is held that the accident was caused by offending vehicle (loading
pick-up van) bearing Registration No.MP33-G-0896.
10. Even otherwise, counsel for appellant specifically submitted that there is no
violation of terms and conditions of the insurance policy.
11. Under these circumstances, this Court is of considered opinion that the
Claims Tribunal did not commit any mistake by holding the insurance company
jointly and severally liable to pay the compensation amount along with driver and
owner of the offending vehicle.
Cross-objection filed by the claimants
12. Although claimants have valued their cross-objection for Rs.2,00,000/- but
court fee of only Rs.30/- has been paid. Since adequate court fee has not been
paid, therefore, the cross-objection is dismissed.
13. Ex consequenti, this appeal filed by the Insurance Company and cross-
objection filed by the Claimants are hereby dismissed.
(G.S. Ahluwalia)
Judge
(and)
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