Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.24992500 OF 2018
(Arising out of SLP (Civil) Nos.2814142 of 2017)
Mangla Ram …Appellant(s)
:Versus:
The Oriental Insurance Co. Ltd.
& Ors. ….Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. In the present appeals, the appellant/claimant has
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challenged the judgment dated 5 January, 2017 passed by
the High Court of Judicature for Rajasthan, Jodhpur Bench,
in SB Civil Miscellaneous Appeal Nos.273 of 2001 and 290
of 2001, which set aside the award of the Motor Accident
Claims Tribunal [‘ ] granting compensation to
the Tribunal’
Signature Not Verified
Digitally signed by
CHETAN KUMAR
Date: 2018.04.06
17:14:42 IST
Reason:
the appellant at the instance of respondent Nos.2 and 3
(driver and owner of the offending vehicle, respectively) as
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also negatived the appellant’s prayer for enhancement of the
compensation amount.
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2. The appellant alleges that on or about 10 February,
1990, while he was riding his motorcycle, bearing No. RJ
196636, he was hit by jeep No. RST4701, owned by
respondent No.3 and purportedly being driven by
respondent No.2 at the time, resulting in serious injuries
and ultimately, amputation of his right leg above the knee.
The appellant subsequently filed an application before the
Tribunal, Jodhpur, seeking compensation against the
respondents, including the respondent No.1 insurance
company. He claimed 40% permanent disability and 100%
functional disability, contending that his primary livelihood
of driving heavy transport vehicles (HTVs) had been
curtailed on account of his amputation, and sought
compensation to the tune of Rs. 11,17,000/. Respondent
Nos.2 and 3 denied the accident and the involvement of the
jeep in question. The respondent No.1 insurance company
argued that the cover note purportedly taken for the jeep in
question was fraudulent. The cover note had been given
unauthorisedly by its then Development Officer, no
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premium had been deposited with the company and no
policy had been issued in that regard. Thus, the jeep was
not validly insured.
nd
In its judgment dated 22 November, 2000, the
3.
Tribunal discussed the evidence on record in detail. PW2
(Chainaram) and PW4 (Thanaram), who had taken the
appellant to the hospital after the accident, deposed that
after the accident, the jeep which caused the accident
stopped ahead and they noted the jeep number in the
backlight and further, they heard the driver’s name being
called out by the passengers in the jeep. The Tribunal,
however, found that their version of having noted the jeep
number and heard the driver’s name seemed to be
unnatural. The Tribunal also discarded the version of the
appellant (PW1) about the details of the vehicle as being not
reliable. The Tribunal then noted the evidence of the defence
witnesses, that the jeep in question was nowhere near the
area of the accident. The Tribunal, however, opined that
the accident had been caused by the jeep in question, based
on the investigation report filed by the police mentioning
that when they seized the jeep after one month of the
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accident, the jeep bore a scratch on the mudguard of the
tyre on the upper footboard on the left side. The Tribunal
also relied on the charge sheet (Exh.1) filed by the police,
wherein it has been stated that the accident was caused by
the jeep in question on the basis of statements made by the
appellant and other witnesses (Roopram, Thanaram and
Pratap Singh). The Tribunal held that there was no reason
to disagree with the conclusion of the police. In short, the
Tribunal disbelieved the evidence of the appellant’s
witnesses, regarding the commission of accident by the jeep
in question, as unreliable but nevertheless relied upon the
investigation report as also the charge sheet filed by the
police in that regard which was supported by two other
witnesses who did not depose before the Tribunal.
4. The Tribunal then referred to the site map of the
accident (Exh.2), to conclude that the appellant was riding
his motorcycle one foot on wrong side from the middle of the
road and hence, had contributed to the accident by being
negligent. The Tribunal also accepted the plea of the
respondent No.1 insurance company that the cover note as
regard the offending jeep was fraudulent. The Tribunal
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accepted the evidence of witness DW4, the branch manager
of the respondent No.1 insurance company, that the
company did not receive any premium under the relevant
cover note and had not issued any insurance policy in that
regard. DW 4 had deposed that the cover note was not
deposited with the company. Further, the concerned
development officer, whose signature was on the cover note,
had been removed from the respondent No.1 insurance
company but had in his possession certain cover notes,
including the relevant cover note. DW 4 stated that no
insurance policy was issued on the basis of the said cover
note. The Tribunal then found that it was possible that the
Development Officer had backdated the cover note and had
not deposited the money for issuing a policy with the
company. The Tribunal thus held that the vehicle was not
insured by the company and, therefore, the company was
not liable.
5. Based on the aforesaid observations, the Tribunal took
into account the injuries caused to the appellant and
calculated compensation of Rs. 1,27,000/ but, owing to the
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purported negligence of the appellant, reduced the amount
by half and finally awarded a sum of Rs. 63,500/ to the
appellant payable by the respondent Nos. 2 and 3 jointly.
The appellant filed an appeal (SB Civil Misc. Appeal
6.
No.273 of 2001) for enhancement whereas respondent Nos.
2 and 3 (driver and owner of the jeep, respectively)
challenged the Tribunal’s award (by way of SB Civil Misc.
Appeal No.290 of 2001), before the High Court of Rajasthan,
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Jodhpur Bench. In its judgment dated 5 January, 2017,
the High Court concluded that the Tribunal’s findings were
incorrect, unconvincing and not supported by evidence.
Further, the Tribunal’s reasoning, that it did not believe the
oral evidence of the parties but had nevertheless answered
the issue in favour of the claimant solely on the basis of the
police report, on the ground that there was no reason not to
believe the conclusion arrived at by the police, was flawed
and incorrect. The High Court noted that the Tribunal was
not convinced about the involvement of the vehicle, despite
which it held that involvement was proved. Furthermore, no
finding regarding negligence of the driver of the jeep had
been recorded by the Tribunal rather it found that the
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appellant was negligent while riding his motorcycle. The
High Court took the view that mere filing of a chargesheet,
without any finding of conviction, was insufficient to prove
negligence by respondent Nos. 2 and 3. Additionally, the
High Court also held that the statement of the appellant,
wherein he claimed that the bumper of the jeep had hit the
rear of his motorcycle, was contradicted by the investigation
report of the jeep which recorded that it did not bear out
that the jeep had been involved in an accident. The High
Court, therefore, was pleased to set aside the Tribunal’s
award and allowed the appeal filed by the driver and owner
of the jeep (respondent Nos. 2 and 3 respectively) while
dismissing the appeal filed by the appellant.
7. We have heard Mr. Rishabh Sancheti, learned counsel
appearing for the appellant. He contends that the evidence
on record clearly indicates that the accident was caused due
to the rash and negligent driving of Jeep No. RST4701 by
respondent No.2, which fact has been established by the
eyewitnesses. The respondent No.2 failed to adduce any
cogent evidence in his defence. He also contends that the
vehicle in question was seized by the police but there was a
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strong possibility that it had been repaired in the
interregnum creating a discrepancy between the accounts of
the witnesses who were present at the time of the accident
and the actual condition of the vehicle at the time of seizure.
Further, the Tribunal’s reliance on the site map to infer that
the appellant was riding his motorcycle on the wrong side of
the road is erroneous as the site map merely reflected the
position of the motorcycle after the accident and not at the
time of the accident. The High Court, contends the learned
counsel, erroneously decided the matter on the principle of
‘beyond reasonable doubt’ whereas proceedings under the
Motor Vehicles Act were required to be decided on the basis
of preponderance of probabilities and thus, the degree of
proof required was much less. Additionally, the proceedings
under the Motor Vehicles Act were not adversarial and in
that regard, the evidence on record was sufficient to reach
at the conclusion that respondent No.2’s negligence led to
the accident and that the appellant was entitled to full
compensation. Finally, the appellant suffered 40%
permanent disability and 100% functional disability and on
that basis, the Tribunal erred by not granting higher
9
compensation to the appellant. He also contends that the
courts below erred in absolving the respondent No.1
insurance company from its liability. The following cases
were cited by the learned counsel in support of the
submissions:
Kaushnuma Begum & Ors. vs. The New
1
India Assurance Co. Ltd. and Ors. , Dulcina Fernandes
2
,
and Ors. vs. Joaquim Xavier Cruz and Anr. Bimla Devi
and Ors. vs. Himachal Road Transport Corporation and
3 4
. , ,
Ors Ravi Kapur v State of Rajasthan National
5
Insurance Co. Ltd. v Pranay Sethi & Ors. , Kishan
6
,
Gopal & Anr. v Lala & Ors. Harbans Lal v Harvinder
7
Pal , New India Assurance Co. Ltd. v Pazhaniammal &
8 9
Ors. , United India Insurance Co. Ltd. v Deepak Goel ,
10
Manisha v Umakant Marotrao Kolhe and Mahawati
11
Devi v Branch Manager .
1
(2001) 2 SCC 9
2
(2013) 10 SCC 646
3
(2009) 13 SCC 530
4
(2012) 9 SCC 284
5
AIR 2017 SC 5157
6
(2014) 1 SCC 244
7
2015 SCC OnLine P& H 9926
8
2011 SCC OnLine Ker 1881
9
2014 SCC OnLine Del 362
10
2015 SCC OnLine Bom 4613
11
2017 SCC OnLine Pat 1145
10
8. We have also heard Ms. Aishwarya Bhati, learned
counsel for respondent Nos.2 and 3 [in SLP (Civil) No. 28141
of 2017 and respondent Nos.1 and 2 in SLP (Civil) No.28142
of 2017] the driver and owner, respectively, of the offending
jeep and Mr. K.K. Bhat, learned counsel appearing for
respondent No.1 Insurance Company. They contend that
the appellant did not have a valid driving licence at the time
of the accident and was negligently driving on the wrong
side of the road. Even the driving licence produced by the
appellant was for a different class of vehicles and not for a
motorcycle, which he was riding at the time of the accident.
Further, the Tribunal sans examination of the witnesses
whose statement were recorded by the police in furtherance
of the FIR filed in relation to the subject accident could not
have based its conclusion merely due to filing of a charge
sheet in that regard and without any information as to any
conviction. Mere filing of the charge sheet by the police is
not enough. That is not a legal evidence, much less
sufficient to record a finding of fact that either that the jeep
in question was involved in the accident or that respondent
No.2 was negligently driving the said vehicle. The High
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Court has also categorically opined that no finding on the
factum of negligence on the part of respondent No.2 driver
of the jeep has been recorded by the Tribunal; and that the
selfsame police report indicates that the jeep was not
involved in the accident in question.
9. On the issue of whether the jeep was validly insured,
Ms. Bhati contends that the respondent No.3 owner took
insurance for the jeep and even paid premium for the same
and hence, any objection taken by the respondent No.3
insurance company that such insurance was fraudulently
obtained, is untenable. Reliance is placed on the decision
12
in New India Assurance Co. Ltd. Vs. Rula & Ors , to
buttress this submission. Mr. Bhat, however, argues that
the jeep was not insured and that the official of the
company who had issued the cover note had fraudulently
issued the same. It is possible that the said official had
backdated certain cover notes, for which he had been
expelled from the company. The evidence in that regard is
conclusive and there is a finding by the Tribunal on that
count. Mr. Bhat relies upon the decisions in
Oriental
12
(2000) 3 SCC 195
12
13
Insurance Co. Ltd. v Meena Variyal , Minu B Mehta &
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and
Anr. v Balakrishna Ramachandra Nayan & Anr.
Surender Kumar Arora & Anr. v Dr. Manoj Bisla &
15
Ors. .
10. The moot question which arises for our consideration
in these appeals is about the justness of the decision of the
High Court in reversing the finding of fact recorded by the
Tribunal on the factum of involvement of Jeep No.RST4701
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in the accident occurred on 10 February, 1990 at about
8.008.30 P.M. and also on the factum of negligence of the
driver of the jeep causing the accident in question. On the
first aspect, the High Court has noted that the Tribunal
having discarded the oral evidence adduced by the appellant
(claimant) could not have based its finding merely on the
basis of the FIR and the chargesheet filed against the driver
of the offending vehicle and also because the mechanical
investigation report (Exh.5) merely indicated that on the left
side of the offending vehicle a scratch mark was noticed on
the mudguard of the left tyre which contradicted the
13
(2007) 5 SCC 428
14
(1977) 2 SCC 441
15
(2012) 4 SCC 552
13
statement of the claimant and the Police Investigation
Report much less showing involvement of the vehicle in the
accident. As regards the second aspect on the factum of
negligence, the High Court noted that the Tribunal did not
record any finding about the negligence of the driver of the
jeep and the site map (Exh. 2) would indicate that the
appellant/claimant himself was negligent in driving the
motorcycle in the middle of the road.
11. As the judgment of the High Court has been assailed
in the appeal filed by the appellant (claimant) for
enhancement of compensation, including the finding of the
Tribunal in discarding the evidence of PW1, PW2 and PW
4 on the factum of involvement of the offending vehicle in
the accident and also on the factum of the said vehicle being
driven rashly and negligently by the driver (respondent
No.2), we have been called upon to examine even the
correctness of the approach of the Tribunal. We are
conscious of the fact that in an appeal under Article 136 of
the Constitution, ordinarily this Court will not engage itself
in reappreciation of the evidence as such but can certainly
examine the evidence on record to consider the challenge to
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the findings recorded by Tribunal or the High Court, being
perverse or replete with error apparent on the face of the
record and being manifestly wrong.
From the evidence which has come on record, the
12.
finding recorded by the Tribunal that the appellant while
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riding his motorcycle on 10 February, 1990 between 8.00
P.M. and 8.30 P.M., met with an accident when a jeep being
driven rashly and negligently, struck his motorcycle
resulting in falling down and suffering severe injuries on his
right leg, which was required to be amputated from above
the knee level at MGH Hospital, seems to us to be a possible
view. That position is established from the oral evidence of
PWs1, 2 and 4 and the charge sheet and its accompanying
documents filed by the police. Even the High Court has
broadly agreed with this finding recorded by the Tribunal.
13. The debatable issue is about the factum of
involvement of Jeep No.RST4701 allegedly driven by
respondent No.2 and whether it was driven rashly and
negligently as a result of which the accident occurred.
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14. Indeed, the Tribunal did not accept the version of
PW1, PW2 and PW4 about the involvement of Jeep
No.RST4701, but has not discarded their version in toto.
The evidence of these witnesses to the extent they have
consistently stated that when the appellant was riding on
his motorcycle bearing No.RJ 196636 at the relevant time,
going to Basni from Panwara Phanta and when he reached
near Siviya Nada, a green jeep coming at a high speed from
Salawas side, hit the motorcycle from back side, as a result
of which the appellant fell down and suffered severe injuries
including to his right leg which was eventually amputated
from above the knee level, has not been doubted.
Pertinently, besides mentioning the description of the
offending vehicle as a “jeep” they have also spoken about its
colour (green) and that it was displaying the Congress Party
flags and banners on the side of the jeep. In other words,
their version limited to having noted the jeep number, has
not been accepted. Besides, the Tribunal relied upon the
evidence of respondent No.2 Chail Singh (DW1) and
Bhanwar Singh (DW2) who had stated that the jeep was
deployed in the election campaign of Sarpanch of Somdar
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Village on the Salawas Road and thus denied the
involvement of the vehicle in the accident in question.
Nevertheless, the Tribunal then adverted to the FIR and the
chargesheet filed in respect of the accident naming
respondent No.2 as accused. The Tribunal placed reliance
upon the copy of challan (Exh.1), copy of FIR (Exh.32), Site
Map (Exhs.3 & 4), Jeep Seizure Report (Exh.5), XRay
(Exh.6) and Injury Report (Exh.7), to opine that these police
records gathered during the investigation of the crime not
only confirmed that an accident had occurred but also
indicated the involvement of the offending Jeep No.RST
4701, which was driven by respondent No.2 at the relevant
time. The Tribunal went on to conclude that there was no
reason to disagree with the opinion of the Investigating
Agency in that behalf. The chargesheet was accompanied
by the statements of the appellant and the witnesses
Rooparam, Thanaram and Pratap Singh. On the basis of the
entirety of the evidence, the Tribunal had held that Jeep
No.RST4701 which was driven by respondent No.2 at the
relevant time was involved in the accident in question,
causing severe injuries to the appellant.
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15. The High Court, however, reversed this finding of fact
rendered by the Tribunal essentially on two counts: First,
that the Tribunal having discarded the oral evidence about
the involvement of Jeep No.RST4701 in the accident in
question, allegedly driven by respondent No.2, could not
and ought not to have recorded the finding on the relevant
issue against respondent Nos.2 & 3 merely by relying on the
documents forming part of the police charge sheet. Second,
the jeep seizure report (Exh. 5) indicated that only a scratch
on the mudguard of the left tyre of the vehicle was noticed,
which contradicted the claim of the appellant about the
involvement of the vehicle.
The question is: whether this approach of the High
16.
Court can be sustained in law? While dealing with a similar
situation, this Court in Bimla Devi (supra) 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 Court observed that while dealing
with the claim petition in terms of Section 166 of the Motor
18
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 paragraphs 1115, the
Court observed thus:
“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 visàvis the averments made in a claim
petition.
12. The deceased was a constable. Death took place near
a police station. The postmortem 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 busstand 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.
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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.
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)
17. 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
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similar findings, recorded by the Tribunal was set aside.
Following the enunciation in Bimla Devi’s case (supra), this
Court in (supra) noted that when filing of the
Parmeswari
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 the testimony of the
eyewitnesses in paragraphs 12 & 13 and observed thus:
“12. The other ground on which the High Court dismissed
the case was by way of disbelieving the testimony of
Umed Singh, PW 1. Such disbelief of the High Court is
totally conjectural. Umed Singh is not related to the
appellant but as a good citizen, Umed Singh extended his
help to the appellant by helping her to reach the doctor’s
chamber in order to ensure that an injured woman gets
medical treatment. The evidence of Umed Singh cannot
be disbelieved just because he did not file a complaint
himself. We are constrained to repeat our observation
that the total approach of the High Court, unfortunately,
was not sensitised enough to appreciate the plight of the
victim.
13. The other socalled 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…….”
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18. It will be useful to advert to the dictum in N.K.V. Bros.
16
, wherein it was
(P) Ltd. Vs. M. Karumai Ammal and Ors.
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 the IPC, is more
stringent than negligence sufficient under the law of tort to
create liability. The observation made in paragraph 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:
“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 emphasizing
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
16
(1980) 3 SCC 457
22
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.”
19. In (supra), this Court examined
Dulcina Fernandes
similar situation where the evidence of claimant’s eye
witness was discarded by the Tribunal and that the
respondent in that case was acquitted 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
23
standard of proof beyond reasonable doubt could not have
been applied as noted in Bimla Devi (supra). In paragraphs
8 & 9, of the reported decision, the dictum in
United India
17
Insurance Co. Ltd. Vs. Shila Datta , has been adverted
to as under:
“8 . In United India Insurance Co. Ltd. v. Shila Datta while
considering the nature of a claim petition under the Motor
Vehicles Act, 1988 a threeJudge 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)
‘ . ( ) The rules of the pleadings do not strictly
10 ii
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 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 , 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.’ ”
17
(2011) 10 SCC 509
24
In paragraph 10 of the reported decision [
Dulcina
Fernandes and Ors. (supra)] , 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.
In the above conspectus, the appellant is justified in
20.
contending that the High Court committed manifest error in
reversing the holistic view of the Tribunal in reference to the
statements of witnesses forming part of the chargesheet,
FIR, Jeep Seizure Report in particular, to hold that Jeep
No.RST4701 driven by respondent No.2 was involved in the
accident in question. Indeed, the High Court was impressed
by the Mechanical Investigation Report (Exh. 5) which
stated that only a scratch mark on the mudguard of the left
tyre of the vehicle had been noted. On that basis, it
proceeded to observe that the same was in contradiction to
the claim of the appellant (claimant), ruling out the
possibility of involvement of the vehicle in the accident.
25
This conclusion is based on surmises and conjectures and
also in disregard of the relevant fact that the vehicle was
seized by the police after investigation, only after one month
from the date of the accident and the possibility of the same
having been repaired in the meantime could not be ruled
out. In other words, the reasons which weighed with the
High Court for reversing the finding of fact recorded by the
Tribunal upon holistic analysis of the entire evidence, about
the involvement of Jeep No.RST4701 in the accident,
cannot be countenanced. For, those reasons do not affect
the other overwhelming circumstances and evidence which
has come on record and commended to the Tribunal about
the involvement of the subject jeep in the accident in
question. This being the main edifice, for which the High
Court allowed the appeal preferred by respondent Nos.2 &
3, it must necessarily follow that the finding of fact recorded
by the Tribunal on the factum of involvement of Jeep No.
RST4701 in the accident in question will have to be
restored for reasons noted hitherto.
21. Another reason which weighed with the High Court to
interfere in the First Appeal filed by respondent Nos.2 & 3,
26
was absence of finding by the Tribunal about the factum of
negligence of the driver of the subject jeep. Factually, this
view is untenable. Our understanding of the analysis done
by the Tribunal is to hold that Jeep No. RST4701 was
driven rashly and negligently by respondent No.2 when it
collided with the motorcycle of the appellant leading to the
accident. This can be discerned from the evidence of
witnesses and the contents of the chargesheet filed by the
police, naming respondent No.2. This Court in a recent
decision in (supra), noted that the key
Dulcina Fernandes
of negligence on the part of the driver of the offending
vehicle as set up by the claimants was required to be
decided by the Tribunal on the touchstone of preponderance
of probability and certainly not by standard of proof beyond
reasonable doubt. Suffice it to observe that the exposition
in the judgments already adverted to by us, filing of charge
sheet against respondent No.2 prima facie points towards
his complicity in driving the vehicle negligently and rashly.
Further, even when the accused were to be acquitted in the
criminal case, this Court opined that the same may be of no
effect on the assessment of the liability required in respect
27
of motor accident cases by the Tribunal. Reliance placed
upon the decisions in Minu B Mehta (supra) and Meena
(supra), by the respondents, in our opinion, is of
Variyal
no avail. The dictum in these cases is on the matter in
issue in the concerned case. Similarly, even the dictum in
the case of (supra) will be of no
Surender Kumar Arora
avail. In the present case, considering the entirety of the
pleadings, evidence and circumstances on record and in
particular the finding recorded by the Tribunal on the
factum of negligence of the respondent No.2, the driver of
the offending jeep, the High Court committed manifest error
in taking a contrary view which, in our opinion, is an error
apparent on the face of record and manifestly wrong.
22. In Kaushnuma Begum (supra), whilst dealing with an
application under Section 163A of the Motor Vehicles Act,
1988, this Court expounded that negligence is only one of
the species for compensation in respect of the accident
arising out of the use of motor vehicles. There are other
premises for such cause of action. After observing this, the
Court adverted to the principle expounded in Rylands Vs.
28
18
Fletcher . It may be useful to reproduce paragraphs 1214
which read thus:
“12 . Even if there is no negligence on the part of the
driver or owner of the motor vehicle, but accident
happens while the vehicle was in use, should not the
owner be made liable for damages to the person who
suffered on account of such accident? This question
depends upon how far the rule in Rylands v. Fletcher can
apply in motor accident cases. The said rule is
summarised by Blackburn, J., thus:
‘[T]he true rule of law is that the person who, for his
own purposes, brings on his land, and collects and
keeps there anything likely to do mischief if it
escapes, must keep it in at his peril, and, if he does
not do so, he is prima facie answerable for all the
damage which is the natural consequence of its
escape. He can excuse himself by showing that the
escape was owing to the plaintiff’s default, or,
perhaps, that the escape was the consequence of
vis major, or the act of God; but, as nothing of this
sort exists here, it is unnecessary to inquire what
excuse would be sufficient.’
13 . The House of Lords considered it and upheld the ratio
with the following dictum:
‘We think that the true rule of law is that the
person who, for his own purposes, brings on his
land, and collects and keeps there anything likely
to do mischief if it escapes, must keep it in at his
peril, and, if he does not do so, he is prima facie
answerable for all the damage which is the natural
consequence of its escape. He can excuse himself
by showing that the escape was owing to the
plaintiff’s default, or, perhaps, that the escape was
the consequence of vis major, or the act of God;
but, as nothing of this sort exists here, it is
unnecessary to inquire what excuse would be
sufficient.’
14 . The above rule eventually gained approval in a large
number of decisions rendered by courts in England and
18
(186173) All ER Rep 1
29
abroad. Winfield on Tort has brought out even a chapter
on the “Rule in Rylands v. Fletcher ”. At p. 543 of the 15th
Edn. of the celebrated work the learned author has
pointed out that
‘over the years Rylands v. Fletcher has been
applied to a remarkable variety of things: fire, gas,
explosions, electricity, oil, noxious fumes, colliery
spoil, rusty wire from a decayed fence, vibrations,
poisonous vegetation’.
He has elaborated seven defences recognised in
common law against action brought on the strength
of the rule in Rylands v. Fletcher . They are:
( 1 ) Consent of the plaintiff i.e. volenti non fit
injuria.
( 2 ) Common benefit i.e. where the source of the
danger is maintained for the common benefit of the
plaintiff and the defendant, the defendant is not
liable for its escape.
( 3 ) Act of stranger i.e. if the escape was caused by
the unforeseeable act of a stranger, the rule does
not apply.
( 4 ) Exercise of statutory authority i.e. the rule will
stand excluded either when the act was done under
a statutory duty or when a statute provides
otherwise.
( 5 ) Act of God or vis major i.e. circumstances which
no human foresight can provide against and of
which human prudence is not bound to recognise
the possibility.
( 6 ) Default of the plaintiff i.e. if the damage is
caused solely by the act or default of the plaintiff
himself, the rule will not apply.
( 7 ) Remoteness of consequences i.e. the rule cannot
be applied ad infinitum, because even according to
the formulation of the rule made by Blackburn, J.,
the defendant is answerable only for all the damage
‘which is the natural consequence of its escape’. ”
And again, the Court, after adverting to the decisions in
19
,
Charan Lal Sahu Vs. Union of India Union Carbide
19
(1990) 1 SCC 613
30
20
Corpn. Vs. Union of India and Gujarat SRTC Vs.
21
, in paragraphs 19 & 20,
Ramanbhai Prabhatbhai
observed thus:
“19. Like any other common law principle, which is
acceptable to our jurisprudence, the rule in Rylands v.
Fletcher can be followed at least until any other new
principle which excels the former can be evolved, or until
legislation provides differently. Hence, we are disposed to
adopt the rule in claims for compensation made in
respect of motor accidents.
20. ‘No fault liability’ envisaged in Section 140 of the MV
Act is distinguishable from the rule of strict liability. In
the former, the compensation amount is fixed and is
payable even if any one of the exceptions to the rule can
be applied. It is a statutory liability created without which
the claimant should not get any amount under that
count. Compensation on account of accident arising from
the use of motor vehicles can be claimed under the
common law even without the aid of a statute. The
provisions of the MV Act permit that compensation paid
under “no fault liability” can be deducted from the final
amount awarded by the Tribunal. Therefore, these two
are resting on two different premises. We are, therefore, of
the opinion that even apart from Section 140 of the MV
Act, a victim in an accident which occurred while using a
motor vehicle, is entitled to get compensation from a
Tribunal unless any one of the exceptions would apply.
The Tribunal and the High Court have, therefore, gone
into error in divesting the claimants of the compensation
payable to them.”
23. Be that as it may, the next question is whether the
Tribunal was justified in concluding that the appellant was
also negligent and had contributed equally, which finding
20
(1991) 4 SCC 584
21
(1987) 3 SCC 234
31
rests only on the site map (Exh. 2) indicating the spot where
the motorcycle was lying after the accident? We find
substance in the criticism of the appellant that the spot
where the motor vehicle was found lying after the accident
cannot be the basis to assume that it was driven in or
around that spot at the relevant time. It can be safely
inferred that after the accident of this nature in which the
appellant suffered severe injuries necessitating amputation
of his right leg above the knee level, the motorcycle would be
pushed forward after the collision and being hit by a high
speeding jeep. Neither the Tribunal nor the High Court has
found that the spot noted in the site map, one foot wrong
side on the middle of the road was the spot where the
accident actually occurred. However, the finding is that as
per the site map, the motorcycle was found lying at that
spot. That cannot be the basis to assume that the appellant
was driving the motorcycle on the wrong side of the road at
the relevant time. Further, the respondents did not produce
any contra evidence to indicate that the motorcycle was
being driven on the wrong side of the road at the time when
the offending vehicle dashed it. In this view of the matter,
32
the finding of the Tribunal that the appellant contributed to
the occurrence of the accident by driving the motorcycle on
the wrong side of the road, is manifestly wrong and cannot
be sustained. The High Court has not expressed any
opinion on this issue, having already answered the issue
about the noninvolvement of the offending vehicle in favour
of respondent Nos.2 & 3.
24. In other words, we are inclined to hold that there is no
tittle of evidence about the motorcycle being driven
negligently by the appellant at the time of accident. The
respondents did not produce any such evidence. That fact,
therefore, cannot be assumed. Resultantly, the argument of
the respondents that the appellant did not possess a valid
motorcycle driving licence at the time of accident, will be of
no significance. Thus, we hold that there is no legal
evidence to answer the issue of contributory negligence
against the appellant.
25. The next question is about the quantum of
compensation amount to be paid to the appellant. The
Tribunal noted the claim of the appellant that he was
getting Rs.1500/ per month towards his salary and
33
Rs.600/ per month towards food allowance from Bhanwar
Lal. The fact that the appellant had possessed heavy
transport motor vehicle driving licence has not been
doubted. The driving licence on record being valid for a
limited period, cannot be the basis to belie the claim of the
appellant duly supported by Bhanwar Lal, that the
appellant was employed by him on his new truck. Besides
the said income, the appellant claimed to have earning of
Rs.1000/ per month from farming fields. In other words,
we find that the Tribunal has not analysed this evidence in
proper perspective. The Tribunal, however, pegged the loss
of monthly income to the appellant at Rs.520/ per month
while computing the compensation amount on the finding
that there was no convincing evidence about complete non
employability of the appellant. Further, no provision has
been made by the Tribunal towards future prospects. The
Tribunal, therefore, should have computed the loss of
income on that basis. Additionally, the appellant because of
amputation of his right leg would be forced to permanently
use prosthetic leg during his life time. No provision has
been made by the Tribunal in that regard. On these heads,
34
the appellant is certainly entitled for enhanced
compensation.
26. The next question is about the liability of insurer to
pay the compensation amount. The Tribunal has absolved
the insurance company on the finding that no premium was
received by the insurance company nor any insurance
policy was ever issued by the insurance company in relation
to the offending vehicle. The respondents no.2 and 3 had
relied on a Cover Note which according to respondent No.1 –
Insurance Company was fraudulently obtained from the
then Development Officer, who was later on sacked by
respondent No.1 Insurance Company. The possibility of
misuse of some cover notes lying with him could not be
ruled out. The respondent Nos.2 & 3 have relied on the
decision of this Court in Rula (supra). That decision will be
of no avail to respondent Nos.2 & 3. In that case, the Court
found that the insurance policy was already issued after
accepting the cheque; whereas in the present case, the
respondent No.1 Insurance Company has been able to show
that no payment was received by the company towards the
35
insurance premium nor any insurance policy had been
issued in respect of the offending vehicle (jeep). However,
the claim of respondent Nos.2 & 3 to the extent that they
possessed a cover note issued by the then Development
Officer of the Oriental Insurance Company (respondent
No.1) will have to be accepted coupled with the fact that
there is no positive evidence to indicate that the said Cover
Note is ante dated. Pertinently, the Cover Note has been
issued by the then Development Officer at a point of time
when he was still working with respondent No.1 Insurance
Company. It must follow that the then Development Officer
was acting on behalf of the Insurance Company, even
though stricto sensu the respondent No.1 Insurance
Company may not be liable to pay any compensation as no
insurance policy has been issued in respect of the offending
vehicle, much less a valid insurance policy. But for the
Cover Note issued by the Development Officer of respondent
No.1 Insurance Company at a point of time when he was
still working with respondent No.1, to do substantial justice,
we may invoke the principle of “pay and recover”, as has
36
been enunciated by this Court in the case of National
22
Insurance Co. Ltd. Vs. Swaran Singh & Ors.
27. Reverting to the calculation of compensation amount,
taking the loss of monthly income due to permanent
disability of 40%, the appellant will be entitled to
Rs.2,25,792/ [Rs.840 per month (i.e. 40 % of Rs.2,100/)
+ 40% future prospects [as per Pranay Sethi (supra)] x 12 x
16, i.e. (840 + 336) x 12 x 16. We uphold the amounts
quantified by the Tribunal towards the heads for medical
treatment after the accident, motorcycle repair, mental and
physical problem, as it is. However, the appellant, in our
opinion, is additionally entitled to medical expenses for
procurement of a prosthetic leg, which is quantified at
Rs.25,000/ (Rupees twenty five thousand only). In
summation, the appellant would be entitled to the following
compensation:
(i) Medical treatment after accident : Rs. 5,000/
(ii) Motorcycle repair : Rs. 2,000/
(iii) Mental and physical problem : Rs. 20,000/
(iv) Loss of income due to
40% permanent disability : Rs. 2,25,792/
,000/
(v) Cost of prosthetic leg : Rs. 25
Total: Rs. 2,77,792/
22
(2004) 3 SCC 297 (para 110)
37
(Rupees Two Lakh Seventy Seven Thousand Seven Hundred
Ninety Two only)
28. The appellant would also be entitled to interest on the
total amount of compensation at the rate of 9% per annum
th
from the date of filing of the claim application i.e. 11 June,
1990 till the date of realization. The respondents will be
entitled for adjustment of amount already paid to the
appellant, if any.
29. The appeals are allowed in the above terms with costs.
……………………………... CJI .
(Dipak Misra)
…..…….…………………..…. J .
(A.M. Khanwilkar)
New Delhi;
April 06, 2018.