Partly allowed

Smt. Shashi Bala and Others v. Sri Pratap Singh and Another

Allahabad HC9 Oct 2023FAFO/1849/2003

Case brief

AI extract

What is this about?

Appeal against dismissal of a fatal motor accident claim. The High Court found the Tribunal's findings on identity of the deceased and negligence perverse and based on a hypertechnical approach inconsistent with the welfare nature of the Motor Vehicles Act. The appeal was partly allowed, the award set aside, and the matter remitted for de novo trial.

What did the court decide?

The impugned judgment and award dated 05.05.2003 was set aside, and the matter was remitted to the Tribunal for de novo trial, with directions to afford parties opportunity to lead further evidence an

Smt. Shashi Bala and Others Vs Sri Pratap Singh and… — Motor Accident Claims | Allahabad HC (2023)

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A.F.R.

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Neutral Citation No. - 2023:AHC:193879

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RESERVED

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Court No. - 33

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Case :- FIRST APPEAL FROM ORDER No. - 1849 of 2003

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Appellant :- Smt. Shashi Bala and others Respondent :- Sri Pratap Singh and another Counsel for Appellant :- Ram Singh Counsel for Respondent :- Om Prakash Mishra, B.P.Verma

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Hon'ble J.J. Munir,J.

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This is a claimants’ appeal under Section 173 of the Motor Vehicles Act, 1988¹ . The appellants, who are four in number, are the widow and the minor children of the late Jagdish Prasad, the victim of a fatal motor accident. The appellants shall hereinafter be called the 'claimants' unless an individual or different reference is necessitated by the context. Respondent No.1 to this appeal, Pratap Singh, is the owner of the offending vehicle, a truck bearing Registration No. HR 38-E-6399. Ram Chandra is the driver (respondent No. 2 here) of the offending vehicle whereas respondent No. 3, the Divisional Manager, National Insurance Company Ltd., Samad Road, Aligarh, are the insurers. Respondent Nos. 1, 2 and 3 shall hereinafter be referred to as the driver, the owner and the insurers in that order.

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2. The facts giving rise to this appeal are these :

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Jagdish Prasad alias Jagdish Babu son of the late Munshi Lal, resident of Mohalla Abul Fazal, Town Jalali, Police Station Harduaganj, District Aligarh was a medical practitioner aged about 40 years. He was a R.M.P. (Registered Medical Practitioner) doctor and would earn a sum of ₹10,000/- per mensem from his practice. He was practising medicine at Jalali for the past 22 years. On the 23^rd March, 2001, at 11:00 O' Clock in the morning hours, Jagdish Prasad was proceeding from his in-laws’ place

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1 ‘the Act of 1988’ for short

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located in Village Karsan to Etah, riding pillion on a motorcycle, bearing Registration No. U.P. 75 B-4037. The motorcycle was being ridden at a slow speed by one Neeraj Kumar son of Siyaram. It was moving on one side of the road. As the motorcycle reached a Village called Nagla Kisi on the Awagarh-Etah road, a truck bearing Registration No. HR 38-E-6399 of Tata approached from the opposite direction, driven rashly and negligently. It went to the wrong side of the road and hit the ill-fated motorcycle. In consequence of the impact, both the rider and the pillion sustained grievous injuries. Neeraj Kumar died on way to the hospital, whereas Jagdish Prasad, who had sustained grievous head injuries was taken to the J.N. Medical College Hospital, Aligarh for treatment. He died during treatment on 28.03.2001 at 5:00 O'Clock in the morning.

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The claimants, accordingly, petitioned the Tribunal praying that they may be awarded compensation in the sum of 20,57,000/-. ₹

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Upon notice being issued to the opposite parties to the claim petition, that is to say, the owner, driver and the insurers, the insurers appeared and put in their written statement on 01.12.2001. The claimants’ case was generally denied. In the additional pleas, it was averred that unless a valid insurance policy and the driver's license, besides other papers relating to the offending vehicle were produced, the insurers were not liable to pay any compensation. It was also pleaded that the insurers had no personal knowledge about the accident. It was averred that the insurers and the owner of the ill-fated motorcycle were not made parties to the claim petition and, therefore, the claim was bad for non-joinder of the necessary parties.

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The owner did not file any written statement.

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On the pleadings of parties, the following issues were framed (translated from Hindi to English) :

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Whether on 22.3.2001 at about 11 o'clock Jagdish Prasad, son of Munshi Lal, resident of Mohalla Abul Fazal Jalali, P.S. Harduaganj, was riding pillion on Motorcycle bearing Registration No. UP75B-4037 along with Neeraj, son of Siyaram, proceeding from Karsan to Etah and when they reached Awagarh road near village Kisi, Truck bearing No.HR 38 E 6399 driven by its driver at a high speed and negligently hit the motorcycle, in consequence whereof, Jagdish Prasad sustained grievous injury and died on 28.3.2001?

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Whether on the date of the accident, drivers of both the vehicles had valid driving licences?

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Whether on the date of the accident, both the vehicles had a valid insurance policy?

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Whether the claimants are entitled to the compensation demanded? If yes, from which opposite party and how much?

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Relief, if any, to which the claimants are entitled?

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The Tribunal has decided Issue No. 1, holding that it was not proved that Jagdish Prasad, who died on 28.03.2001 at the J.N. Medical College Hospital, Aligarh was the same man as Jagdish Babu, the deceased who had sustained injuries in the accident on 22.03.2001 on the Awagarh-Etah Road, near Nagla Kisi, involving the offending truck. It was also held that the negligence of the truck driver in the accident was not proved, because the site-plan shows that the accident occurred in the middle of the road. The inference about lack of exclusive negligence of the driver was also based on the fact that it was opined by the Tribunal that the ill-fated motorcycle had two pillion riders, which is an offence under the Act of 1988. The Tribunal, therefore, held that the driver and the rider of the motorcycle had contributed to the accident. Thus, Issue No. 1 was decided against the claimants.

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The Tribunal answered Issue No. 2 in the negative, holding that the driving license of both the driver and the rider of the motorcycle were not proved, because none of the parties have filed these documents.

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Issue No. 3 has been answered in the manner that the cover note issued by the insurers showed that the offending truck had a valid and effective insurance policy in its favour on the date of the accident.

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Issue Nos. 4 and 5 were dealt with together. It was opined that Jagdish Prasad, the deceased who died in consequence of injuries at the J.N. Medical College Hospital, Aligarh was not proven to be the same man who had sustained these injuries in the accident on 22.03.2001 while riding pillion on the motorcycle on the Awagarh-Etah Road near Nagla Kisi, where the accident happened. It was held that in this view of the matter, the claimants are not entitled to any compensation.

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It was also held to dispel the claimants’ doubts, as the Tribunal has chosen to say, that Jagdish Prasad, a photostat copy of whose death certificate had been filed on record and Jagdish Babu, a resident of Mathura, who had got himself registered as a private medical practitioner, are not proven to be the same person. There are other remarks that the income of Jagdish Prasad is not proved, because his occupation is not established.

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The Tribunal, on the foot of these findings, ordered the claim petition to be dismissed with costs of 1,000 payable by the claimants to₹ the insurers.

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Aggrieved, this appeal has been preferred by the claimants.

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During the course of hearing before this Court, an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908² was moved on behalf of the claimants, seeking to admit to record additional evidence. The claimants, through this application, proposed to bring on record a certified copy of the judgment and award dated 05.06.2004 passed by the Motor Accident Claims Tribunal/Special Judge (S.C./S.T. (P.A.) Act), Etah in Motor Accident Claims Petition No. 139 of 2001. It is a claim

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2 ‘the Code’ for short

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relating to the same accident as the one giving rise to the present appeal. This Court, vide order dated 24.11.2022, allowed the said application and admitted the judgment and award passed in M.A.C.P. No. 139 of 2001 by the Tribunal at Etah to record. Under the orders of this Court, it was marked as Exhibit-1 on 26.11.2002.

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Heard Mr. Ram Singh, learned Counsel for the claimants, Mr. B.P. Verma, learned Counsel appearing on behalf of the driver and Mr. Om Prakash Mishra, learned Counsel appearing on behalf of the insurers. 16. It is argued by Mr. Ram Singh that the Tribunal has gone askew in holding that Jagdish Prasad and Jagdish Babu were two different persons, and that the identity of the victim of the accident as the claimant’s husband Jagdish Babu, who died at J.N. Medical College Hospital, Aligarh on 28.03.2001 is not established. He says that the identity of the deceased as Jagdish Prasad alias Jagdish Babu is well established by the testimony of P.W.1., Smt. Shashi Bala, his widow and one of the claimants. It is particularly argued that there is no plea taken in the written statement filed on behalf of the insurers that the deceased, Jagdish Prasad, who died at Aligarh is a person different from the one who met with the accident at the Agra-Awagarh Road. It is particularly emphasized that in her testimony, P.W.1, Smt. Shashi Bala has proved her husband’s death, saying that her husband’s name is Jagdish Prasad, who was also called Jagdish Babu. She has referred to the postmortem report relating to the Jagdish Prasad son of Munshi Lal as well as the death certificate regarding Jagdish Prasad son of Munshi Lal, resident of Jalali, who was admitted to the J.N. Medical College Hospital, Aligarh on 22.03.2001, and died during treatment on 28.03.2001, to show that, in fact, the victim was Smt. Shashi Bala’s husband and the minor claimants’ father, who died as a result of the accident on 28.03.2001. It is, particularly, emphasized that the evidence of P.W.2, Chhotey Singh son of Raghuveer Singh, who

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was also a pillion rider, was also an eye-witness of the accident, whose testimony cannot be ignored, as done by the Tribunal.

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Learned Counsel has also referred to the charge-sheet filed by the Police, where the driver has been challaned with remarks that in consequence of his rash and negligent driving, two men died, to wit, Niresh and Jagdish. It is particularly submitted by Mr. Ram Singh that the Tribunal’s approach is not only hypertechnical, but also one that has dwelt upon trivial details to ignore far more glaring evidence, that strongly supports the claimants’ case, not only about the accident, the driver’s negligence, but also about the identity of the deceased Jagdish Prasad alias Jagish Babu. It is argued by Mr. Ram Singh that the approach in a motor accident claim to be adopted by the Tribunal, cannot be that of a Criminal Court, as the learned Judge in the Tribunal seems to have done. It is emphasized that the Tribunal is not bound by strict rules of pleadings or evidence. It has to evaluate the evidence wholesomely. There is not the slightest doubt that the deceased Jagdish Prasad alias Jagdish Babu perished in the motor accident and he was one and the same man of whom the claimants are the dependants, being his family.

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It is also argued that the Act of 1988 is a beneficial piece of legislation, and, therefore, while dealing with compensation cases, once the occurrence of the accident has been established, the Tribunal’s role would be to make a just award. The issue about identity of the deceased, Mr. Ram Singh says, is a figment of imagination of the Judge in Tribunal, with none of the parties on the either side questioning it.

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Learned Counsel appearing for the insurers and the driver Mr. Om Prakash Mishra and Mr. B.P. Verma, on the other hand, are unanimous in saying that the Tribunal has done a correct evaluation of the evidence on record to find so much of contradiction in evidence that the deceased’s identity is not at all established as the victim of the accident, that

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happened on 22.03.2001 on the Awagarh-Etah Road. Mr. Mishra appearing for the insurers urged that according to the claim petition, the motorcycle was driven by Neeraj (Niresh Kumar) and the deceased Jagdish Prasad alias Jagdish Babu was riding pillion, when the accident happened. Niresh Kumar died on way to the hospital. The deceased Jagdish Prasad alias Jagdish Babu received serious injuries and was admitted to the J.N. Medical College Hospital, Aligarh for treatment. The death certificate of Jagdish Prasad alias Jagdish Babu issued by the J.N. Medical College Hospital, Aligarh shows that he was admitted on 22.03.2001 at 03:00 p.m. P.W.2, Chhotey Singh, who is an eye-witness of the accident and also said to be riding pillion in breach of conditions of the insurance policy and the Act of 1988, has said that the deceased was rushed to the District Hospital, Etah for treatment, but the death certificate issued by the J.N. Medical College Hospital, Aligarh shows that the deceased was admitted on 22.03.2001 directly, without any referral. It is emphasized that the claimants failed to produce any medical certificate of medical aid provided by the District Hospital, Etah. It is also emphasized that the identity of Jagdish Babu is highly doubtful. He has died in some other accident, but falsely shown to be the victim of the accident involving the vehicle covered by the insurance policy, that the insurers have issued.

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I have considered rival submissions advanced on behalf of the parties.

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The Tribunal has recorded the most wholesome finding, deciding Issue No. 1. The first part of the issue that the Tribunal has considered is if Jagdish Prasad, who died at the J.N. Medical College Hospital, Aligarh on 28.03.2003 at 05:00 a.m. was the same man as Jagdish Babu, Smt. Shashi Bala’s husband and the three other minor claimants’ father. The Tribunal has concluded that Jagdish Babu, who is said to have met with an accident on Awagarh-Etah road on 22.03.2001, while riding pillion on

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the ill-fated motorcycle, and who was a private doctor registered with the Private Medical Practitioners’ Association of India, was a different man from Jagdish Prasad, who died at the J.N. Medical College Hospital, Aligarh on 28.03.2001. To reach this conclusion, the Tribunal has opined that there is no other evidence about the fact that Jagdish Babu and Jagdish Prasad are one and the same man, except the testimony of Smt. Shashi Bala, claimant No. 1. It is remarked that there is no documentary evidence to prove the fact about the identity of the deceased as the victim of the fatal accident.

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This Court must say that in order to conclude that Jagdish Prasad, son of Munshi Lal and Jagdish Babu, Smt. Shashi Bala’s husband are two different persons, the Tribunal has strained logic to reach a conclusion that is contrary to convincing evidence that has been led on behalf of the claimants to prove that the man called Jagdish Prasad, who died at the J.N. Medical College Hospital, Aligarh during treatment on 28.03.2001, was the same person Jagdish Babu, in whose favour, the Private Medical Practitioners’ Association has issued a registration certificate, and who died in the accident near Nagla Kisi on 22.03.2001 in the motor accident.

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There is this further remark by the Tribunal that the claimants have not proved as to which of the two Jagdishs’ wife and children they are. In order to reach this conclusion, the Tribunal has referred to the postmortem report relating to Jagdish Prasad, where his age is recorded as 40 years. The learned Judge has then referred to the statement of P.W.1, Smt. Shashi Bala to say that she has not disclosed when she was married, but claimed the age of her elder daughter to be 12 years. The Tribunal has noted that according to the claim petition, Jagdish Prasad was practising medicine at Jalali for the last 22 years.

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The learned Judge of the Tribunal has then taken note of the testimony of P.W.2, Chhotey Singh on the issue of the deceased's identity.

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Chhotey Singh was also riding pillion on the ill-fated vehicle. The Tribunal has remarked that according to this witness, the persons who had gathered at the site of the accident carried them to the District Hospital, Etah and got this witness and Jagdish Prasad admitted. Jagdish Prasad was referred to the J.N. Medical College Hospital, Aligarh. The Tribunal has then taken note of the fact that the First Information Report of the incident was lodged on 22.03.2001, by the brother of the deceased rider of the motorcycle, Niresh Kumar, who had reported that by the time he took his brother to the District Hospital, Etah, his brother had died, whereas the other injured were being treated. This report was lodged at 14:05 hours at Police Station Kotwali Dehat, Etah, that is to say at 02:05 p.m. The Tribunal has remarked that in the death certificate relating to Jagdish Prasad issued by the J.N. Medical College Hospital, Aligarh, the time of his admission has been recorded as 03:00 p.m. on 22.03.2001. It is said by the Tribunal that there is no certificate of any treatment of Jagdish Prasad relating to the District Hospital, Etah, which would show if he had indeed received any head injury. It is also observed that the report was lodged at Police Station Kotwali Dehat at 02:05 p.m. on 22.03.2001, whereas Jagdish Prasad was shown to have been admitted to the J.N. Medical College Hospital, Aligarh, the same day at 03:00 p.m., hardly 45 minutes later. It is remarked that considering the geographical distance between the Police Station at Etah and the J.N. Medical College Hospital at Aligarh, the claimants’ story is rendered suspicious and without any evidence to dispel that suspicion.

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Adopting this line of reasoning, the Tribunal has observed that whether the deceased Jagdish Prasad and Dr. Jagdish Babu, whose private medical practitioner’s certificate has been filed on record, are one and the same man or two different persons, is to be seen, amongst others, by the fact that Jagdish Babu’s age is not mentioned on the registration certificate and his residence shown to be that of District Mathura, whereas

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there is no evidence to show that Jagdish Prasad practised at Mathura in the name of Jagdish Babu earlier. It is then observed that this certificate has been issued on 13.06.1980 and it mentions also that the applicant (Jagdish) has been practising as a doctor for the past five years. According to the Tribunal, these contents of the certificate show that Jagdish Babu, in whose name the certificate of registration has been issued, would have been practising on 22.03.2001, the date of the accident, for at least 26-27 years. However, the age of the deceased was 40 years. The Tribunal has remarked that on reckoning the age of the man, in whose favour the certificate of registration was issued, if he were the same man who died in the accident, he must have commenced practise at the age of 13-14 years, which the laws of India do not permit. It is a position that is impossible to accept.

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It is also observed by the Tribunal that the death certificate issued by the J.N. Medical College Hospital, of which a photostat copy has been produced, shows that the dead body was handed over to the Police of Police Station Civil Lines, Aligarh, and after the postmortem too, the dead body was handed over to the Police. According to the Tribunal, the chances are that Jagidsh Prasad died within the local limits of Police Station Civil Lines, Aligarh on account of head injuries sustained in some accident there and was, therefore, admitted to the J.N. Medical College Hospital, Aligarh. He died later on, on 28.03.2001.

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The Tribunal goes on to observe that the claimant, which is an apparent reference to Smt. Shashi Bala, has not examined her brother, who gave her information about the accident as a witness, nor the brother's son, who got the First Information Report registered. It is, again, observed with regard to the certificate of registration issued by the Private Medical Practitioners’ Association of India in the name of Jagdish Babu, showing him to be a resident of Mathura, that the document is not above

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suspicion. The Tribunal has concluded that the claimants have failed to prove by the evidence that Jagdish Prasad and Jagdish Babu, the deceased are one and the same man and further that Jagdissh Prasad, who had received head injuries on 22.03.2001 and died on 28.03.2001 at 3:00 p.m. at the J.N. Medical College Hospital, had received those injuries on 22.03.2001 at 11:00 a.m. in the accident, near Nagla Kisi.

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There is no case at all in the written statement on behalf of the Insurers, disputing the identity of the deceased, Jagdish Prasad alias Jagdish Babu. The grounds on which the Tribunal has proceeded to hold that Jagdish Babu and Jagdish Prasad are two different persons, to say the least, border on perversity. There was absolutely no reason for the Tribunal to have inferred from the certificate of registration dated 13^th June, 1980 issued by the Private Medical Practitioner Association of India, in favour of Dr. Jagdish Babu that the deceased's age did not coalesce with that of the man described as Dr. Jagdish Babu in the certificate of registration issued by the said Association.

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For one, the Private Medical Practitioner Association of India is not a statutory or professional body of doctors, conferring some kind of a right to practise medicine under the law upon its members. The document that is on record at Page No.62 of the paper-book, bearing Paper No.17C2, ex facie shows that it is some kind of a registered private body, may be under the Societies Registration Act, sans legal authority to certify a doctor's practise or affect his right. Unnecessary emphasis, therefore, has been laid by the Tribunal upon reckoning Dr. Jagdish Babu's age with reference to the said certificate. In her cross-examination, P.W.1 Smt. Shashi Bala has said that :

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। । र त

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भी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईद म े ं डाक्टरी करने लगे। मेरे प त �े या होमियोपैथिक डाक्टर थे ।

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मैं नहीं जानती कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईनहीं जानती कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईजानती कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईकि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�वहएलोपैथि��डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�े या होमियोपैथिक डाक्टर थे। भाईयाहोकि वह एलोपैथिक डाक्टर थे या हो म ियोपैथिक डाक्टर थे। भाईयोपैथि��डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�े या होमियोपैथिक डाक्टर थे । भाईभाई �े या होमियोपैथिक डाक्टर थे। भाई�म्पाउण्डर थे या होमियोपैथिक डाक्टर थे। भाईी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�र थे या होमियोपैथिक डाक्टर थे। भाईते या होमियोपैथिक डाक्टर थे। भाई�े या होमियोपैथिक डाक्टर थे । भाईबाद में डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवामें डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवाडाक्टर थे या होमियोपैथिक डाक्टर थे। भाईी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�र थे या होमियोपैथिक डाक्टर थे। भाईने या होमियोपैथिक डाक्टर थे। भाईलगे या होमियोपैथिक डाक्टर थे । भाईमे या होमियोपैथिक डाक्ट र थे। भाईे या होमियोपैथिक डाक्टर थे। भाईपति इंजेक्शन त इंजे या होमियोपैथि क डाक्टर थे। भाईशनत�ाद में डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा द व ाा े ं डाक्टरी करने लगे। मेरे प त ।

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P.W.3, Jagdish Prasad in his examination has testified as follows :

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मृत�डा० जगदीश प्रसाद उर्फ जगदीश बाबू जो जगदीश बाबू के नाम से जानतेजगद में डाक्टर ी करने लगे। मेरे पति इंजेक्शन तथा दवाशप्रसाद में डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवाउर्फ जगदीश बाबू जो जगदीश बाबू के नाम से जानते- जगद में डाक्टर ी करने लगे। मेरे पति इंजेक्शन तथा दवाशबाबू जो जगदीश बाबू के नाम से जानतेजोजगद में डाक्टर ी करने लगे। मेरे पति इंजेक्शन तथा दवाशबाबू जो जगदीश बाबू के नाम से जानते�े या होमियोपैथिक डाक्टर थे। भाईनामसे या होमियोपैथिक डाक्टर थे। भाईजानते या होमियोपैथिक डाक्टर थे। भाई । र ह त ा

¶78

ी ी ी �े या होमियोपैथिक डाक्टर थे । भाईद में डाक्ट र ी करने लगे। मेरे पति इंजेक्शन तथा दवाु-टनासे या होमियोपैथिक डाक्टर थे। भाईपकि व ह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईले या होमियोपैथिक डाक्टर थे। भाईजलाली कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�े या होमियोपैथिक डाक्टर थे। भाईति इंजेक्शन त था दवार थे य ा होमियोपैथिक डाक्टर थे। भाईहे या होमियोपैथिक डाक्टर थे। भाईबसस्टे या होमियोपैथिक डाक्टर थे। भाईण्ड�े या होमियोपैथिक डाक्टर थे। भाईपासउन�ी डाक्टरी कीडाक्टर थे या होमियोपैथिक डाक्टर थे। भाईी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�ी डाक्टरी की । व

¶79

। र ह त ा

¶80

द में डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवाु�ान�ी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे । भाईमैं नहीं जानती कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईअपने या होमियोपैथिक डाक्टर थे। भाईपरिर थे या होमियोपैथिक डाक्टर थे। भाईवार थे या होमियोपैथिक डाक्टर थे। भाईवालो�े या होमियोपैथिक डाक्टर थे। भाईलिलएद में डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा द व ााउन्ही कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�े या होमियोपैथिक डाक्टर थे। भाईयहांसे या होमियोपैथिक डाक्टर थे। भाईले या होमियोपैथिक डाक्टर थे। भाईजाता�ा। भाई �स्बाजलाली कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईत�ाआसपास�े या होमियोपैथिक डाक्टर थे। भाईलोगआते या होमियोपैथिक डाक्टर थे। भाईजाते या होमियोपैथिक डाक्टर थे। भाई�े या होमियोपैथिक डाक्टर थे । भाईभी कि वह एलोपैथिक ड लगी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईर थे या ह ोमियोपैथिक डाक्टर थे। भाईती कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�ी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे । भाईइन�ी डाक्टरी की डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�ी डाक्टरी कीद में डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवाु�ानबहुतसालों पुरानी थी।पुर थे य ा होमियोपैथिक डाक्टर थे। भाईनी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�ी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे ।

¶81

In his cross-examination, this witness has further said :

¶82

मृत��ोजगद में डाक्टर ी करने लगे। मेरे पति इंजेक्शन तथा दवाशप्रसाद में डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवावजगद में डाक्टर ी करने लगे। मेरे पति इंजेक्शन तथा दवाशबाबू जो जगदीश बाबू के नाम से जानते�े या होमियोपैथिक डाक्टर थे। भाईनामसे या होमियोपैथिक डाक्टर थे। भाईजानते या होमियोपैथिक डाक्टर थे। भाई�े या होमियोपैथिक डाक्टर थे ।

¶83

Likewise, P.W.1 Shashi Bala in her examination-in-chief has said :

¶84

मे या होमियोपैथिक डाक्ट र थे। भाईे या होमियोपैथिक डाक्टर थे। भाईपति इंजेक्शन त �ानामजगद में डाक्टर ी करने लगे। मेरे पति इंजेक्शन तथा दवाशप्रसाद में डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवा�ाजिजन�ोजगद में डाक्टर ी करने लगे। मेरे पति इंजेक्शन तथा दवाशबाबू जो जगदीश बाबू के नाम से जानतेभी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�हते या होमियोपैथिक डाक्टर थे। भाई�े या होमियोपैथिक डाक्टर थे ।

¶85

About the last mentioned fact in her testimony by P.W.1 that her husband's name was Jagdish Prasad, who was also known as Jagdish Babu, this witness has not been contradicted at all in her crossexamination. It is apparent from the evidence aforesaid that Jagdish Prasad was also known as Jagdish Babu.

¶86

So far as the certificate of registration from the Private Medical Practitioner Association of India, describing the deceased as Jagdish Babu, is concerned, it is, as already said, not a certificate issued by any statutory body or authority that the mention of the deceased's name there would carry any authenticity about it. It is also to be understood that the deceased was apparently some kind of a quack, practicing medicine in the township of Jalali.

¶87

Judicial notice can be taken of the fact that in small towns and villages, one does come across a large number of persons unauthorizedly practising medicine without a formal degree. There are repeat crack downs to prevent such unauthorized practice of medicine by the Government and their agencies, but still in remote areas, small towns and villages, quacks command medical practice and are trusted by the

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¶90

ingorant. The testimony of the deceased's wife, Smt. Shashi Bala, P.W.1, clearly shows that the deceased earlier worked as a compounder with his brother and then commenced practising medicine. Surprisingly, the Tribunal has noticed this evidence, but not drawn the obvious conclusion. Given these circumstances, there was no necessity at all for the Tribunal to have gone on an age calculation exercise, based on the certificate of registration of a private doctors association to determine the period of prior practice mentioned in it and the number of years of practice credited to the deceased, comparing it with his age and hold that the deceased Jagdish Prasad, who died at the J.N. Medical College Hospital, Aligarh, was a man different from Dr. Jagdish Babu, the victim of the accident. The Tribunal has apparently ignored from consideration the consistent testimony of P.W.1 and P.W.3 that Jagdish Prasad was also called Jagdish Babu. The parentage of both men is the same. It is commonplace for a man to be referred to by his formal name, and another name as well. Calling some man, apparently well placed in life, with a 'Babu' added to his name, is also a practice in vogue in this part of the country.

¶91

The fact that Dr. Jagdish Babu has been mentioned in the certificate of registration issued by the Private Medical Practitioner Association of India has been given undue weight by the learned Judge in the Tribunal, because that certificate does not come from a statutory or formal professional body, where precision about name of the member ought to be expected.

¶92

The Tribunal has also doubted the identity of the victim of the accident and the man who died at the J.N. Medical College Hospital, Aligarh on 28.03.2001, because of the geographical distance between Police Station at Etah, where the accident was reported and the J.N. Medical College Hospital at Aligarh. This too is based on a misreading of evidence. According to the claimants, their witnesses as also the FIR, the

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¶95

accident happened at 11:00 a.m. It is true that the FIR about it was lodged at Police Station Kotwali Dehat, Etah at 2:05 p.m. on 22.03.2001, but that is no reference point to gauge time that would be taken for the deceased to be conveyed to the J.N. Medical College Hospital, Aligarh. The FIR mentions that the victims were taken to the District Hospital, Etah. It has figured in the evidence of P.W.2, Chhotey Singh that Jagdish Prasad was referred from the District Hospital, Etah to the J.N. Medical College Hospital, Aligarh. There is no mention of the fact in all this testimony that at what time, Jagdish Prasad was referred by the hospital at Etah to Aligarh. Therefore, there is no basis for the Tribunal to have held that the distance between Police Station Kotwali Dehat, Etah and the Medical College at Aligarh could not be covered between 2.05 p.m. and 3.00 p.m. There is nothing to show in the evidence that Jagdish Prasad was at the Police Station till the FIR was registered. Logically as well, Jatdish Prasad was critically injured and would have been rushed to Hospital and not to the Police Station. The finding of the Tribunal, therefore, based on gauging of the time required to travel between Etah and Aligarh in order to disbelieve the victim's identity is based on flawed reasoning.

¶96

The Tribunal has also doubted the identity of the man, who died at the J.N. Medical College Hospital, Aligarh on ground that there is no document of treatment or reference relating to Jagdish Prasad from the District Hospital, Etah, where he was admittedly taken in the first instance for medical aid. The Tribunal has thought that once in the evidence it has figured that Jagdish Prasad was referred from the District Hospital, Etah to the J.N. Medical College Hospital, Aligarh, there ought to have been a letter of reference, whereas there is none. The approach of the Tribunal, apart from being hairsplitting and not in keeping with inquisitorial jurisdiction that the Tribunal exercises in judging a motor accident claim, is flawed, because in the emergency of a motor accident victim, one can expect the doctors at the District Hospital, Etah, to have quickly shunted

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¶98

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¶99

the victim to the higher centre at Aligarh, without formally admitting him, administering some treatment and writing a letter of reference. There is no question put to the claimants' witnesses in this regard. Therefore, absence of documents of treatment or referral from the District Hospital, Etah are hardly of consequence. The Tribunal has most of all erred in disbelieving the testimony of Chhotey Singh, who was an extra man on the pillion. The Tribunal has committed a manifest error in opining that the presence of this witness on the scene of accident is doubtful, because, there is no injury report produced with regard to him, and his name does not figure in the list of witnesses, carried in the charge-sheet relative to the accident. In the testimony of P.W.2, Chhotey Singh, it is said in his cross-examination at the instance of the Insurers :

¶100

मुझे या होमियोपैथिक डाक्टर थे। भाईभी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईद में डाक्ट र ी करने लगे। मेरे पति इंजेक्शन तथा दवाु-टनामें डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवाचोटआई�ी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईले या होमियोपैथि क डाक्टर थे। भाई�न�ोड़ लग ी रहती थी। इनकीद म े ं डाक्ट र ी करने लगे। मेरे पति इंजेक्शन तथा दवामें डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवाही कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईमुझे या होमियोपैथिक डाक्टर थे। भाईहोशआगया�ा। भाई यह�हनागलतहैकि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�मैर्घटना�े या होमियोपैथिक डाक्टर थे। भाईसमयमौजू जो जग द नही कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�ा। भाईऔर थे या होमियोपैथिक डाक्टर थे। भाईझू जो जगदीश बाबू के नाम से जानतेठी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईगवाही कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईद म े ं डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवार थे या ह ोमियोपैथिक डाक्टर थे। भाईा हू जो जगदीश बाबू के नाम से जानतें। भाई

¶101

There is no reason to disbelieve that Chhotey Singh was not an extra-pillion on the ill-fated motorcycle, merely because his name does not figure in the list of witnesses that the Police have filed as part of the charge-sheet. As to the injury reports, Chhotey Singh was not confronted with the question at all as to why there was no document relating to injuries sustained by him. Rather, this witness has said that he did receive injuries, but regained consciousness in a short while. It is suggestive that his injuries were not serious at all and he might not have received any kind of formal treatment at a Hospital, about which there may be record.

¶102

The Tribunal has also remarked that the truck driver was either not negligent or both the truck driver and the rider of the motorcycle were, because the site plan shows that the accident was a head-on collision in the middle of the road. The site plan is suggestive of the fact, but not at all conclusive on the point. There is an eye-witness account of one of the

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¶104

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¶105

pillion riders, P.W.2 Chhotey Singh, where in the examination-in-chief, it is said :

¶106

मोटर थे या होमियोपैथिक डाक्टर थे। भाईसाईकि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�लनी कि वह एलोपैथिक डाक्ट र थे या होमियोपैथिक डाक्टर थे। भाईज�ुमार थे या होमियोपैथिक डाक्टर थे। भाईचलार थे या ह �े या होमियोपैथिक डाक्टर थे । भाईगांवकि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�सी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�े या होमियोपैथिक डाक्टर थे। भाईपासपहुचे या होमियोपैथिक डाक्टर थे। भाईतबसामने या होमियोपैथिक डाक्टर थे। भाईसे या होमियोपैथिक डाक्टर थे। भाई ए�ट्र�संख्याएच० जगदीश प्रसाद उर्फ जगदीश बाबू जो जगदीश बाबू के नाम से जानतेआर थे या होमियोपैथिक डाक्टर थे। भाई० जगदीश प्रसाद उर्फ जगदीश बाबू जो जगदीश बाबू के नाम से जानते 38 ई-6399 ने या होमियोपैथिक डाक्टर थे। भाईते या होमियोपैथिक डाक्टर थे। भाईजी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईवलापर थे या होमियोपैथिक डाक्टर थे। भाईवाही कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�े या होमियोपैथिक डाक्टर थे। भाईसा�मोटर थे या होमियोपैथिक डाक्टर थे। भाई ी म त ।

¶107

साईकि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�लमें डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवाटक्कर थे या होमियोपैथिक डाक्टर थे। भाईमार थे या होमियोपैथिक डाक्टर थे। भाईद में डाक्टर ी करने लगे। मेरे पति इंजेक्शन तथा दवा। भाईमोटर थे या होमियोपैथिक डाक्टर थे। भाईसाईकि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाई�लबहुतधी कि वह एलोपैथिक डाक्टर थे या हो म ियोपैथिक डाक्टर थे। भाईी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईगति इंजेक्शन त से या होमियोपैथिक डाक्टर थे। भाई�च्चे या होमियोपैथिक डाक्टर थे। भाईपटर थे या होमियोपैथिक डाक्टर थे। भाईी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईपर थे या होमियोपैथिक डाक्टर थे। भाई�ी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे । ट्र�वाले या होमियोपैथिक डाक्टर थे। भाईने या होमियोपैथिक डाक्टर थे। भाईगलत Side में डाक्टरी करने लगे। मेरे पति इंजेक्शन तथा दवाआ�र थे या होमियोपैथिक डाक्टर थे। भाईटक्कर थे या होमियोपैथिक डाक्टर थे। भाईमार थे या होमियोपैथिक डाक्टर थे। भाईद में डाक्टर ी करने लगे। मेरे पति इंजेक्शन तथा दवा। भाईमे या होमियोपैथिक डाक्ट र भी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे। भाईचोटआई�ी कि वह एलोपैथिक डाक्टर थे या होमियोपैथिक डाक्टर थे । भाईट्र� चाल�वक्ली डाक्टरी कीनर थे या होमियोपैथिक डाक्टर थे। भाईट्र�छोड़ लगी रहती थी। इनकी�र थे या होमियोपैथिक डाक्टर थे। भाईभागगये या होमियोपैथिक डाक्टर थे। भाई�े या होमियोपैथिक डाक्टर थे ।

¶108

There is no question put to this witness in the cross-examination on behalf of the Insurers that may suggest that the rider of the motorcycle was also equally negligent.

¶109

Quite apart, the fact as to which of the drivers of the two vehicles were guilty of negligence and in what proportion, so far as the claimants are concerned, the deceased being a pillion rider, is quite irrelevant. It is so because for the claimants, it is a case of composite negligence. It is well settled that in a case of composite negligence, the claimants are entitled to proceed against both or any one of the joint tortfeasers and recover the entire compensation from one of them as the liability is joint and several. Reference in this regard may be made in the decision in Khenyei v. New India Assurance Co. Ltd.³ , where it is held:

¶110

20. This Court in Challa Upendra Rao [(2004) 8 SCC 517 : 2005 SCC (Cri) 357] and Nanjappan [(2004) 13 SCC 224 : 2005 SCC (Cri) 148] has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the Tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the Tribunal and the issue has been decided in favour of the insured.

¶111

21. The same analogy can be applied to the instant cases as the liability of the joint tortfeasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle—trailer-truck which was not insured with the insurer, was negligent to the extent of 2/3rd.

¶112

3 (2015) 9 SCC 273

¶113

F.A.F.O. No. 1849 of 2003

¶114

Page -17- of 19

¶115

It would be open to the insurer being insurer of the bus after making payment to the claimant to recover from the owner of the trailer-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tortfeasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.

¶116

22. What emerges from the aforesaid discussion is as follows:

¶117

22.1. In the case of composite negligence, the plaintiff/ claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.

¶118

22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

¶119

22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceedings.

¶120

22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.

¶121

There is, therefore, no justification for the Tribunal to have gone into the question of the negligence vis-à-vis the claimants at all.

¶122

There is another aspect, which has been noted by this Court earlier also. The approach that the learned Judge in the Tribunal has adopted is

¶123

F.A.F.O. No. 1849 of 2003

¶124

Page -18- of 19

¶125

one that a criminal Court would do while judging the prosecution case, which they have to prove beyond reasonable doubt. That cannot be the approach of a Motor Accident Claims Tribunal judging an accident claim under the Act of 1988. The jurisdiction is inquisitorial and the law, under which the Tribunal has to judge, is a social welfare legislation. The object of the Statute is to ameliorate the hardship of the unfortunate victims of motor accidents. The way, the Tribunal has dealt with evidence, is indeed one as if it were a criminal trial with the claimants being required to establish it by the criminal standard. In this regard, reference may be made to the decision of the Supreme Court in Kusum Lata and others v. Satbir and others⁴ , where it is observed :

¶126

9. There is no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of Dheeraj Kumar. In fact, no cogent reason has been assigned either by the Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar. The socalled reason that as the name of Dheeraj Kumar was not mentioned in the FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact situation in this case. It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.

¶127

Except for the finding on Issue No.3, as regards the validity of the insurance policy, this Court is of opinion that the Tribunal has committed manifest errors of law in answering the other issues, particularly so as its findings on Issues Nos.4 and 5 have been rendered under the shadow of all that it has found on Issue No.1.

¶128

So far as Issue No.2 is concerned, this Court thinks that if the matter has to go back to the Tribunal, the parties should have further opportunity to establish the factum whether the driver of the offending truck and the rider of the motorcycle indeed held valid driving licenses.

¶129

4 (2011) 3 SCC 646

¶130

F.A.F.O. No. 1849 of 2003

¶131

Page -19- of 19

¶132

In the opinion of this Court, the Tribunal, now competent under the Act of 1988, must try the petition de novo except for the findings on Issue No.3, which shall not be disturbed.

¶133

In the result, this appeal succeeds and shall stand allowed in part . The impugned judgment and award dated 05.05.2003 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 5, Aligarh is hereby set aside , with a remit of the matter to the Tribunal now competent under the Act of 1988 to try and decide such claim petitions. The Tribunal, before whom this matter now comes up, shall afford parties opportunity to lead further evidence on all such issues, where they seek to do so. The evidence, already recorded, shall be read. The Tribunal shall endeavour and decide the claim petition afresh in accordance with law, bearing in mind the guidance in this judgment, within six months' next from the date of receipt of a certified copy of this order.

¶134

Costs of this appeal shall abide by the event in the Tribunal.

¶135

Order Date :- October 09, 2023 I. Batabyal / Anoop

¶136

(J.J. Munir, J.)

¶137

F.A.F.O. No. 1849 of 2003

¶138

Digitally signed by :- ISHAN BATABYAL High Court of Judicature at Allahabad

Smt. Shashi Bala and Others v. Sri Pratap Singh and Another

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Smt. Shashi Bala and Others v. Sri Pratap Singh and Another

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