Dismissed

Vishal Wallia v. Vidya Devi

Himachal Pradesh HC4 Nov 2023FAO/471/2012

Case brief

AI extract

What is this about?

This judgment dismissed an appeal against an award of Rs. 6.4 Lakh for motor accident death compensation. The court held that a criminal acquittal is not binding in civil proceedings regarding negligence. It also clarified that under Order 41 Rule 33 CPC, an appellate court cannot enhance compensation if the claimants did not contest the award.

What did the court decide?

The present appeal is dismissed; the record is remitted to the High Court.

Vishal Wallia Vs Vidya Devi — Motor Accident Claims | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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FAO No. 471 of 2012 Reserved on: 09.10.2023 Date of Decision: 04^th November, 2023

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Vishal Walia and another

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....Appellants

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Versus

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Vidya Devi and others

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....Respondents

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Coram

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Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? Yes

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For the Appellants : Mr. P.S.Goverdhan, Senior Advocate with Mr. Rakesh Thakur, Advocate. For the Respondents : Mr. Ashwani Sharma, Senior Advocate, with Mr. Ishan Sharma, Advocate, for respondent No.1 None for remaining Respondents.

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. Rakesh Kainthla,Judge

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The present appeal is directed against the Award dated

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28.07.2012, passed by Motor Accident Claims Tribunal, Fast Track

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Court, Solan, Himachal Pradesh ( hereinafter referred to as

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“MACT Solan), vide which, the appeal filed by the present

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appellants (respondents no. 4 and 5 before the learned Trial

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Whether reporters of the local papers may be allowed to see the judgment? Yes

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Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned MACT for convenience).

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Briefly stated, the facts giving rise to the present appeal are that the claimants filed a claim petition before the learned MACT, seeking compensation of ₹ 20,00,000/- (Rupees Twenty Lacs), for the death of Dinesh Kumar, caused in a motor vehicle accident involving the vehicle bearing registrationno.HP63-0862, owned by respondent no.1 and Scooter bearing registration no. HP-14-1581, owned by original respondent no.3, Vishal Walia. It was asserted that the deceased was travelling on the scooter bearing registrationno.HP-14-1581, as pillion rider on 01.09.2004. Original respondent No.3, was driving the scooter at a slow speed on its side. When the scooter reached the MC building, a truck bearing registration no.HP-63-0862, driven by respondent no.2 came from the opposite side at a high speed. The truck hit the scooter on the wrong side of the road. The driver of the scooter and the Dinesh Kumar suffered multiple injuries. The driver of the truck got the F.I.R. registered against the driver of the scooter in connivance with the police. The occupants of the

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scooter were taken to Zonal Hospital Solan. Dinesh Kumar was referred to PGI, Chandigarh but he succumbed to his injury on the way. He was brought back to the Zonal Hospital, Solan, where his post-mortem was conducted. The accident occurred due to the negligence of respondent no.2, who was driving the truck. Dinesh Kumar was 27 years of age. He was employed as a plumber with M/S Rajinder Chauhan and Anudeep Kumar ( A-Class Contractor). He was getting a salary of ₹ 5200/- per month. He also used to earn ₹2500/- per month by working as a plumber in the houses, buildings and Sanitary Stores. Dinesh Kumar was the only breadwinner of the family. Hence, the petition was filed for seeking compensation of ₹20,00,000/-.

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The petition was opposed by respondent no.1 by filing a reply denying the contents of the petition. It was asserted that the driver of the scooter and the pillion rider were under the influence of liquor. The driver of the scooter could not control it and hit a stationary truck. The truck was on its right side and the scooterist hit the truck on the wrong side. The accident occurred due to the negligence of the driver of the scooter. An F.I.R No. 205 of 2004, was registered against the driver of the scooter for the

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commission of offences punishable under Section 279 and 304-A of IPC. There was no negligenceon the part of the driver of the truck. The FIR was rightly registered. The vehicle was duly insured with original respondent no.4 and it is liable to indemnify the owner; therefore, it was prayed that the claim petition be dismissed against respondent no.1.

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Respondent No. 2 also filed a separate reply taking similar pleas. He also denied that the accident had occurred due to his negligence. He claimed that the accident occurred due to the negligence of the driver of the scooter, who was intoxicated and hit the truck on the wrong side of the road. Hence, it was prayed that the petition be dismissed against respondent no.2.

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Respondent No.3, filed a separate reply, taking preliminary objections regarding lack of maintainability, the petition being bad for the non-joiner of parties, and respondent no.3 not being the registered owner of the scooter. The contents of the petition were denied on merits. However, the death of Dinesh Kumar was not disputed. It was asserted that respondent no.3 was not the registered owner of the scooter bearing registration no. HP14-1581. The accident occurred due to the

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negligence of the truck driver. F.I.R. was wrongly registered against respondent no.3 in connivance with the police. Respondent no.3 had also sustained injuries, which resulted in 30% permanent partial disability. The petition was wrongly filed against respondent no.3; hence, it was prayed that the same be dismissed.

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Respondent No.4-Insurance Company filed a separate reply taking preliminary objections regarding the lack of an insurance contract between respondents no.1 and 4, respondent no.2 not having a valid and effective driving licence, the truck being driven in violation of the terms and conditions of the Insurance Policy without a valid registration certificate, fitness certificate, route permit and other documents, respondent no. 1 not being the owner of the vehicle at the time of the accident not having any insurable interest in the same and the petitioners having not come to the learned Tribunal with clean hands. The contents of the petition were denied on merits. It was asserted that documents of the vehicle, and particulars of the insurance policy were not supplied. The petitioner has raised an inflated

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claim. Hence, it was prayed that the petition be dismissed against respondent no.4.

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An application under Order 1 Rule 10 of CPC was filed for impleading the legal representatives of Hari Ram Walia, the original owner of the vehicle and Surinder Walia and Monika Walia were impleaded as legal representatives of deceased Hari Ram Walia. However, the name of Monika Walia (respondent no.6) was deleted as she was found to be an unnecessary party.

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The learned MACT framed the following issues on 01.09.2008:

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Whether Dinesh Kumar died as a result of accident which took place on 1-9-2004 involving truck no. HP63-0862 and Scooter no. HP-14-1581? OPP

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2. If issue no.1 is proved to what compensation the petitioners are entitled to and from whom? OPP.

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3. Whether the accident is the result of rash and negligent driving of scooter driver respondent no.4.? OPR.

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4. Whether respondent no.2 had no valid and effective driving licence at the time of accident?OPR-3.

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5. Whether respondent no. 2 violated terms and conditions of the insurance policy?OPR-3.

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6. Whether respondent no. 2 had no RC, fitness certificate and route permit at the time of accident? OPR-3.

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7. Relief.

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The parties were called to lead their evidence. The petitioners examined Dr. S.R Sharma (PW-1), petitioner No.1 Rani Devi (PW-2), Vishal Walia (PW-3), Prem Parkash (PW-4) and Surinder Singh (PW-5). The respondents examined Het Ram (RW-1), Mahender Lal (RW-1), Kanshi Ram (RW-2), Daleep Singh and (RW-3) ASI Baldev Singh (RW-4).

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An application under Order 6 Rule 17 of CPC was filed on behalf of the Oriental Insurance Company for amendment of the reply, which was allowed and the insurer pleaded that the F.I.R. was registered at the instance of Ashok Kumar. Offences punishable under Section 304-A of IPC and Section 185 of the M.V. Act were also added after the investigation. The scooter was not insured by any person and a false claim was made against the driver of the truck to get the compensation. Vishal Walia was under the influence of liquor and the accident had occurred due to his negligence. He is also facing a criminal trial. It was prayed that the claim petition be dismissed against the insurance company.

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Learned MACT held that the version of the claimant was supported by Prem Parkash (PW-4). The driver of the scooter did not possess the driving licence and the insurance. He was negligent in driving the scooter without the proper documents. The acquittal of respondent Vishal Walia in a criminal case will not help him. The claimants were held entitled to a sum of ₹6,40,000/-. Vishal Walia was held negligent to the extent of 50%. Hence, he and Surinder Walia were directed to pay half of the compensation whereas the insurance company was directed to pay half of the compensation. Learned MACT answered issuesno.1 and 2 in affirmative, issues no. 4 to 6 in negative, issue no. 3 as discussed, and allowed the petition.

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Being aggrieved from the Award passed by the learned MACT, the present appeal has been filed asserting that the learned MACT did not appreciate the evidence led by the claimants in its right perspective. It was wrongly held that the drivers of both vehicles were jointly responsible for the accident. Learned MACT failed to appreciate the un-rebutted testimony of Vishal Walia and the witnesses of the claimants. The driver did not step into the witness box to establish the plea taken by him. The exhibition of

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the F.I.R. does not absolve the owner and driver to disprove the negligence of respondent no.3. The claimants and respondents no. 1 to 3 did not plead the case of contributory negligence and the findings recorded by the learend MACT are not sustainable. The Investigating officer categorically stated that the truck was in motion at the time of the accidentand this falsified the version that the scooter had hit the stationary vehicle. It was wrongly held that the appellants/respondents no. 4 and 5 were liable to pay 50% compensation; therefore, it was prayed that the present petition be allowed and the Award passed by the learned MACT be set aside.

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I have heard Mr. P.S.Goverdhan, learned Senior Counsel assisted by Mr. Rakesh Thakur, Advocate for the appellants/respondents and Mr. Ashwani K. Sharma, learned Senior Counsel assisted by Mr. Ishan Sharma, Advocate, for respondent no.1.

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Mr. P.S.Goverdhan, learned Senior counsel for the appellants/respondents submitted that there was no evidence to establish the negligence of the appellants. Learned MACT wrongly held that the appellants contributed to the accident. Mere

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exhibition of the F.I.R. is not sufficient and the author of the same should have been examined before the Court. The absence of the driving licence is not sufficient to infer the negligence of the person; therefore, he prayed that the present appeal be allowed and the appellants be exonerated from liability.

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Mr. Ashwani Sharma, learned Senior Counsel submitted that F.I.R. contains the earliest version of the accident and is a vital document to decide the claim petition. The plea taken by the appellants that the F.I.R. was manipulated by the driver is incorrect as the F.I.R. was lodged at the instance of an independent person. The appellant Vishal Walia was driving the vehicle under the influence of liquor and he had hit the scooter with the stationary truck. Learned MACT had rightly held him guilty of the contributory negligence to the extent of 50%. There is no infirmity in the Award passed by the learned MACT; therefore, he prayed that the petition be dismissed.

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I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

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Kanshi Ram (RW-2) proved the F.I.R. (Ext.RW-2/A). The F.I.R. reads that Ashok Kumar had gone to Kotla Nala on 01.09.2004 at 9:15 p.m. When he reached ahead of NCC Office, he saw a scooter bearing registration no.HP14-1581, coming from opposite side at a high speed. The scooter hit a stationary truck bearing registration no.HP63-0862. The occupants of the scooter sustained injuries and they were taken to the hospital. The driver of the truck had stopped the truck and the accident occurred due to the negligence of the driver of the scooter. This was the earliest version of the incident.

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It was laid down by the Hon’ble Supreme Court in Ravi v. Badrinarayan , ( 2011) 4 SCC 693 , that F.I.R. is vital in deciding Motor Accident Claim cases. It was observed:-

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“19. Lodging of FIR certainly proves the factum of the accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if the claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be a variety of reasons in genuine cases for delayed lodgement of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the

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authenticity of the FIR assumes much more significance than the delay in lodging thereof supported by cogent reasons.”

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Therefore, FIR cannot be ignored and the submission

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that the learned MACT had erred in relying upon the same is not acceptable.

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ASI Baldev Singh (RW-4), stated that he went to the

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hospital after the receipt of the information regarding the accident. Ashok Kumar made a statement, which was reduced into writing. He obtained MLC. He went to the spot, prepared the site plan and found that the accident had occurred due to the high speed and negligence of the driver of the scooter. The driver and the pillion rider sustained injuries in the accident. He stated in his cross-examination that no test was got conducted to determine the quantity of alcohol consumed by Vishal Walia or the driver of the truck. He did not remember the time of reaching the spot. The information was received telephonically from MHC. The truck was coming from the DC office side and the scooter was going uphill. He admitted that the driver and cleaner of the truck were present on the spot. He had prepared the site plan but he had not brought it to the Court. He admitted that there were many

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houses, near the place of the accident. He remained on the spot for about 2 hours He took photographs of the scooter and the truck. There was a mark on the right side of the truck but he did not remember whether the mark was on the bumper or the body. He admitted that there was no negligence of the driver of the truck and the truck was parked on its side. He admitted that the scooterist was driving the scooter at a high speed and he could not control the same. He admitted that F.I.R. was registered against the driver of the scooter.

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He is an independent person and he had also conducted the investigation.There is nothing in his crossexamination to show that he has any motive to depose falsely against any person. He had only noticed a slight mark on the truck. He also noticed that the truck was parked towards its correct side. This corroborates the version contained in the F.I.R. that the scooter had hit the truck on the wrong side.

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It was submitted in the memorandum of appeal that the truck was in motion at the time of the accident; however, there is nothing in his cross-examination to show that the truck was in motion. He had simply stated that the truck was coming

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from the D.C. Office side and not that the truck was in motion. Further, he was not present on the spot at the time of the accident and his testimony will be hearsay to prove the facts existing at the time of the accident.

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Rani Devi (PW-2) stated that she was not present on the spot at the time of the accident; therefore, her testimony will not help in determining the negligence.

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Vishal Walia (PW-3) stated that he was driving the scooter from Kotla Nala to the DC office. Dinesh Kumar was sitting as a pillion rider. A truck came at a high speed towards the wrong side. He (Vishal Walia) stopped the scooter towards the side. The driver of the truck could not control the truck and hit the scooter. He (Vishal Walia) became unconscious. The pillion rider sustained injuries. He regained consciousness on the next day and found that the pillion rider, Dinesh Kumar, had died. The accident occurred due to the negligence of the driver of the truck. He stated in his cross-examination that a criminal case was pending against him for the commission of an offence punishable under Section 304-A of IPC since 2004. He was not aware whether the driver of the truck was a local person or an outsider. The accident

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occurred at about 9-9:30 p.m. He did not know whether the truck was loaded or unloaded. He and Dinesh had taken liquor. He again stated that no liquor was consumed by him. He denied that he hit the stationary truck in a state of intoxication. He admitted that the scooter was not insured. He did not have a driving licence or insurance. He admitted that a criminal case was pending against him.

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The admission made by him that a criminal case was pending against him shows that he had a motive to shift the blame to the other driver to escape from criminal liability. Therefore, his testimony is not acceptable without corroboration.

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His statement that the truck driver had taken advantage of the absence of the scooterist and the pillion rider is not acceptable because the F.I.R. was lodged at the instance of Ashok Kumar, an independent person.

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Prem Parkash (PW-4) stated that he was going towards the DC office on the date of the accident. He saw a truck at a high speed going towards Kotla Nala. A scooter came from the other side. The Scooterist stopped the scooter but the truck hit the scooter. The accident occurred due to the negligence of the driver

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of the truck. He stated in his cross-examination that he was going to buy vegetables at 9-9:30 p.m. He admitted that the bazaar shuts down at 8:00 p.m. but the vegetable shops are open till late at night. He had not informed the police because he had taken the injured to the hospital. The vehicle with which the accident occurred left the spot. His statement was not recorded by the police. He did not know whether the police had visited the spot or not. He used to work in Tomato Mandi during the day time. He did not know the injured person. He denied that the scooterist and pillion rider were intoxicated. He admitted that he had also deposed in Vishal Walia vs Vidya Devi’s case. He did not know Vishal Walia at the time of the accident.

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The testimony of this witness is not reliable. He stated

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that he had gone to buy the vegetables at 9-9:30 p.m. He was working in the Tomato Mandi and it was natural for him to take vegetables while going home. He stated that he had carried the injured to the hospital but he did not know whether the police reached the hospital or not. He had not made any statement to the police which was quite unnatural because he was an eyewitness and the best witness to depose about the negligence. Vishal Walia

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admitted that he had consumed the liquor. However, he (Prem Parkash) stated that he did not know whether Vishal Walia had consumed the liquor or not. Had he taken the injured to the hospital, he would have noticed the alcohol in the breath of Vishal Walia. Thus, in these circumstances, it is difficult to place reliance on the testimony of this witness that he was present on the spot.

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The statement of this witness shows that the truck had hit the scooter at a high speed. However, the truck had only sustained a mark as per the Investigating Officer. Had the truck hit the scooter at a high speed, the momentum would have resulted in extensive damage to both vehicles. He also stated that the Bazaar shuts down at 8:00 p.m. but stated that vegetable shops remained open till late at night. It is difficult to believe that the vegetable market would remain open even after the shutting of the whole Bazaar at 8:00 p.m. Therefore, in these circumstances, his testimony cannot be relied upon to hold that the accident had taken place due to the negligence of the driver of the truck.

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There is no other evidence. Hence, the version that the scooter had hit the stationary truck on the wrong side appears to

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be more probable than the version of the appellant that the truck had hit the scooter at a high speed.

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In Raj Rani v. Oriental Insurance Co. Ltd. , (2009) 13 SCC 654 a vehicle had hit the stationary truck, and the Hon’ble Court held that a deduction of 50% amount of the contributory negligence was justified. It was observed:-

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17. So far as the issue of “contributory negligence” is concerned, we may notice that the Tribunal has deducted 1/3rd from the total compensation on the ground that the deceased had contributed to the accident. The same, we find, has been upheld by the High Court. This Court in UshaRajkhowa v. Paramount Industries [(2009) 14 SCC 71] discussed the issue of contributory negligence noticing, inter alia, earlier decisions on the same topic. It was held that: (SCC p. 75, para 20)

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“ 20 . The question of contributory negligence on the part of the driver in case of collision was considered by this Court in PramodkumarRasikbhaiJhaveri v. KarmaseyKunvargiTak [(2002) 6 SCC 455: 2002 SCC (Cri) 1355] . That was also a case of collision between a car and a truck. It was observed in SCC p. 458, para 8:

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‘ 8 . … The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as “negligence”. Negligence ordinarily means a breach of a legal duty to care, but when used in the expression “contributory negligence” it does not mean a breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he

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becomes blameworthy in part as an “author of his own wrong”.’

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18. The principle of 50:50 in cases of contributory negligence has been discussed and applied in many cases before this Court. In Krishna VishweshwarHede v. Karnataka SRTC [(2008) 15 SCC 771: 2008 ACJ 1617] this Court upheld the judgment of the Tribunal assessing the ratio of liability at 50:50 in view of the fact that there was contributory negligence on the part of the appellant and fixed the responsibility for the accident in the ratio of 50:50 on the driver of the bus and the appellant.

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19. In this case, the truck was stationary. Some amount of negligence on the part of the deceased cannot be ruled out. Hence in the instant case, we find that there was contributory negligence on the part of the deceased and accordingly the claimant was entitled to only 50% of the total amount of loss of dependency.”

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Hence, the learned MACT had rightly held Vishal Walia

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negligent to the accident to the extent of 50%.

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It was submitted that the petitioner was acquitted in a criminal case by learned Judicial Magistrate First Class, which disproves the negligence of the petitioner. This submission is not acceptable. It was laid down by this Court in H.R.T.C. vs. Jarnail Singh 2009 H.L.J. 173 that the findings of the Criminal Court regarding the negligence of the driver are not binding upon the MACT and the MACT has to give independent findings regarding the negligence. It was observed:-

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“9. A Division Bench of Punjab High Court in Brij Mohan Sahni v. Mohinder Kumar, 1966 ACJ 83 (Punj.) , has held that the findings of the criminal Court are not relevant for the civil Court. Their Lordships have held as under:

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“(12) One other matter may be noticed before we finally conclude. Mr Bedi has placed strong reliance on the order of acquittal recorded in favour of the defendant by a criminal court in a case brought against him under Sections 279/ 338, Indian Penal Code. As observed by a Full Bench of the Punjab High Court (Beckett, Abdur Rahman and Martin, JJ.) in B.N. Kashyap v. The Crown, ILR 1944 Lahore 408 , the finding on certain facts by a civil Court is not relevant before the criminal Court under the provisions of Sections 40, 41, 42, 43, Indian Evidence Act, when it is called upon to give a finding on the same facts or vice versa. This principle of law is equally applicable to the statements which were or were not made before the criminal Court. Mr Bedi has assailed the evidence of R.S. Batra, PW 4 and K.G. Ahuja, PW 6 on the ground that they did not appear in the criminal Court as witnesses although when they recognized the plaintiff in December 1950, they still had time to appear before the criminal Court whose judgment was delivered on 22.1.1951. We do not know whether the evidence had been actually recorded before December 1950 and besides, this is a circumstance, which would not weigh with the decision of a civil Court.

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In our opinion, the Trial Court’s judgment is correct and on a review of the evidence should be upheld. In the result, both the appeal and the cross-objections fail and are dismissed with costs.”

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10. Their Lordships of the Hon’ble Supreme Court in N.K.V. Bros. (P) Ltd. v. M. KarumaiAmmal, Reported in ACC on C.D. Rom=1980 ACJ 435 (SC) , have held that the plea that the criminal case ended in acquittal has no bearing and was

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rightly rejected by the Courts below. Their Lordships have held as under:

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“(2) The facts—A stage carriage belonging to the petitioner was on a trip when, after nightfall, the bus hit an overhanging high-tension wire resulting in 26 casualties of which 8 proved instantaneously fatal. A criminal case ensued but the accused driver was acquitted on the score that the tragedy that happened was an act of God. The Motor Accident Claims Tribunal which tried the claims for compensation under the Motor Vehicles Act, came to the conclusion, affirmed by the High Court that despite the screams of the passengers about the dangerous overhanging wire ahead, the rash driver sped towards the lethal spot. Some lost their lives instantly; several lost their limbs likewise. The High Court, after examining the materials, concluded:

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‘We, therefore, sustain the finding of the Tribunal that the accident had taken place due to rashness and negligence of RW 1 (driver) and consequently the appellant is vicariously liable to pay compensation to the claimant.’

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The plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rejected and rightly. The requirement of culpable rashness under Section 304A, Indian Penal Code is more drastic than negligence sufficient under the law of torts to create liability. The quantum of compensation was moderately fixed and although there was, perhaps, a case for enhancement, the High Court dismissed the cross-claims also. Being questions of fact, we are obviously unwilling to reopen the holdings on culpability and compensation.”

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11. The learned Single Judge of Delhi High Court in Delhi Transport Corporation v. Harbans Kaur, I (1984) ACC 415=23 (1983) DLT 152=1983 ACJ 110 (Del.) , as held that the fact that

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the driver was acquitted by the criminal Court is no ground to hold in a civil case that he was not negligent. The learned Single Judge has held as under:

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“(10) Counsel for the appellant submits that the driver was acquitted in the criminal case. This is no ground to hold in a civil case that he was not negligent. In N.K.V. Bros. (P) Ltd. v. M. KarumaiAmmal, 1980 ACJ 435 (SC) , it has been held that the plea that the criminal case ended in acquittal has no bearing to reject the application for compensation under the Act.”

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12. The learned Single Judge of Madras High Court in Managing Director, ThanthaiPeriyar Trans. Corpn. Ltd. v. AmmaniAmmal, II (1988) ACC 619=1989 ACJ 847 (Mad.) , has held that irrespective of the order of acquittal or conviction in a criminal case, the Tribunal is duty-bound to look into the entire evidence and come to an independent conclusion regarding the manner in which the vehicle was driven during the time of the accident. Learned Single Judge held as under:

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“(10) So far as the question of liability is concerned, it is seen that the evidence of RW 1 itself shows that his evidence cannot be relied on. His interested testimony cannot be made use of to hold that he was not responsible for the occurrence. The evidence of PW 1 and PW 3 also can be looked into with respect to the occurrence in the instant case. While taking the entire evidence thus available through PW 1 to PW 3 and the evidence of RW 1, it is seen that the evidence of PW 2 is to be given credence. Careful scrutiny of the evidence clearly discloses that it was only due to the rash and negligent driving of RW 1 that the occurrence took place. The judgment in Exh. Bl need not be relied on for coming to the conclusion in a claim petition filed under Section 110A of the Motor Vehicles Act. Irrespective of the order of acquittal or conviction in a criminal case, the Tribunal is duty-

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bound to look into the entire evidence adduced before it and come to an independent conclusion regarding the manner in which the vehicle was driven during the time of the occurrence. This Court finds that there is sufficient and adequate evidence available on record to confirm the finding of the Tribunal that it was only due to rash and negligent driving of the bus in question that the occurrence took place.”

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13. The learned Single Judge of the High Court of Andhra Pradesh in Andhra Pradesh State Road Transport Corpn. v. SravajiAruna, 1991 ACJ 542 (AP) , has held that the judgment in the criminal Court is not conclusive. The learned Single Judge has held as under:

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“In an accident that occurred on 16.5.1981 at Gudipet between milestones 241/6 and 241/8, the appellant Corporation’s bus No. APZ 7304 proceeding from Mancherial dashed against two persons by the name Venkatarao, scooter driver and Tirupathirao, the pillion rider, who died thereat. The claimants are the widow and children of the deceased Tirupathirao and they laid the claim in a sum of Rs. 1,56,900. The Claims Tribunal below awarded a sum of Rs. 1,00,000 as against which the appeal has been filed. The trump card for the appellants is the judgment of the criminal Court in C.C. No. 391 of 1981 dated 13.7.1982 on the file of the Judicial First Class Magistrate, Luxesettipet, in which the driver of the bus was acquitted of the charge under Section 304A, Indian Penal Code. It was marked as Exh. B2 in this case. Mr Harinath, learned Standing Counsel for the Corporation, placing reliance thereon has contended that it was the prosecution case that the deceased was attempting to overtake the bus which was going ahead of the scooter, they dashed against a stationed jeep bearing No. APH 1326 fell down and came under the wheel of the bus, as a result, the accident had occurred and it is not on account of the driver of the

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bus, but on account of the rash and negligent driving of the deceased. Therefore, the Tribunal is unjustified in awarding damages and the case should have been dismissed on the ground that the driver of the bus has not been established to have been driving the bus rashly and negligently. It is also contended that the judgment of the criminal Court recording the acquittal of the accused (driver) for the offence under Section 304A, of the Indian Penal Code has become final. The question, therefore, is whether the Tribunal is justified in not giving primacy to the findings recorded in that regard. It is no doubt true that in the above criminal case, the criminal Court acquitted the driver for the offence under Section 304A, Indian Penal Code. In that, the case set up by the prosecution was that the deceased was trying to overtake the bus. On the other hand, the specific case now set up and the evidence adduced in proof thereof is that both the deceased were going on the scooter and the Corporation bus was coming behind and hit against them and it was on account of the rash and negligent driving of the driver of the bus and as a result of the hit, both the deceased fell under the wheels of the bus. This evidence was accepted and on the basis of the evidence, the Tribunal below was not inclined to place reliance on the findings recorded by the criminal court in the above criminal case. It is now well settled that the judgment in the criminal Court is not conclusive. It is open to the claimants to adduce evidence aliundedehors the finding that the accident had occurred as a result of the rash and negligent driving of the driver of the bus. In this regard, the evidence adduced is that of PWs 1 and 2 who are the direct witnesses to the occurrence. It is no doubt true as found in the judgment that the F.I.R. was registered on the basis of the statement made by the first informant who claims to be the direct witness. The evidence of PWs 1 and 2 was considered

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by the Tribunal below and accepting their evidence, the claimant’s claim was accepted. It is no doubt true that PWs 1 and 2 were not examined in the criminal Court. But their non-examination in the criminal Court does not automatically disentitle the evidence of these witnesses who gave evidence here as direct witnesses, to be rejected outright. It is only a circumstance to be taken into account. But that circumstance alone is not sufficient to reject the evidence in toto. The evidence on record is clear that they have no interest in the deceased and they are the direct witnesses and their evidence is cogent and convincing. Once their evidence is accepted as trustworthy and acceptable, then merely because they were not examined in the criminal Court is not a ground to throw their evidence overboard. Obviously, the Tribunal below considered from this perspective and was not inclined to give primacy to the judgment acquitting the accused (driver) under Section 304A of the Indian Penal Code. Considered from this perspective, I hold that the Tribunal below has not committed any error in recording that finding, warranting interference.”

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14. A Division Bench of the High Court of Calcutta in Banya Sarkar v. SipraGuha Roy, I (1993) ACC 290 (DB)=1992 ACJ 572 (Cal.) , has held that standard of proof in a criminal Court and civil Court is not the same. Their Lordships have held as under:

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“(9) In our view it was not necessary on the part of the Claims Tribunal to take into consideration the police report and the deposition recorded by the police. The accused may be discharged or acquitted in a criminal case but that does not show that the accident did not take place or that cannot have any repercussion on the finding of the Claims Tribunal on the basis of the evidence and documents on record. The standard of proof in a criminal Court and civil Court is not the same. In the instant case, the

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appellant failed to prove the fact that the said bus did not travel the area where the accident took place as per the stand taken.”

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15. The learned Single Judge of the High Court of Rajasthan in Nathu Singh Verma v. BehariDass, 1993 ACJ 1233 (Raj.) , has held that the acquittal of the driver of the offending vehicle by the criminal Court is not binding in claim proceedings. The learned Single Judge has held as under:

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“(6) The learned Counsel for the appellants has contended that the acquittal of the vehicle driver by the criminal Court is not binding in claims proceedings and the evidence which had been led in these proceedings can be said to be relevant for the purpose of arriving at a finding in these proceedings. For this proposition, reliance has been placed on MahavirPershad v. Municipal Corporation of Delhi, 1975 ACJ 190 (Delhi) . This is not contested by the learned Counsel for the respondents and it can be said that the evidence in this particular case is to be looked into in order to decide as to how the accident occurred and who could be made liable for the same.”

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16. The learned Single Judge of the High Court of Rajasthan in Chotu Lal v. Chamali Bai, II (1998) ACC 284=1997 ACJ 508 (Raj.) , has held that the claim petition cannot fail merely because there has been acquittal of the driver in the criminal case. The learned Single Judge has held as under:

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“(5) It is a well-established legal principle that findings given in the criminal Court judgment cannot be taken aid and cannot be taken advantage of in the civil or compensation claim matter. Therefore, the claim petition cannot fail merely because there has been an acquittal in the criminal case. The plea that the criminal case ended in acquittal and, therefore, compensation claim must follow suit cannot be accepted and as such rejected.”

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17. Learned Single Judge of the High Court of Madhya Pradesh in Dharamvir Singh Punjabi v. Raghuvar, II (1999)

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ACC 416=1998 ACJ 1292 (MP) , has held that the acquittal of the driver in the criminal trial is not binding upon the Claims Tribunals. The learned Single Judge has held as under:

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“Attention of this Court was drawn to the fact that the driver of the tractor was tried for a criminal offence under Section 304A, Indian Penal Code and that case ended in acquittal in S.T. No. 131 of 1989. The judgment of S.T. No. 131 of 1989 is filed on record in which the benefit of the doubt has been given to the accused in view of the fact that Sarupibai fell down from the tractor that could be by her own mistake, drowsiness or inadvertence. The findings recorded in the said Sessions trial, however, were not assailed in appeal and it had become final. The findings recorded in the said Sessions trial only have given benefit of doubt to the accused. That is not binding upon the Claims Tribunal to accept the same as such. The Claims Tribunal has assessed the facts and the evidence led in the claim case on their merits and came to the conclusion that rash and negligent driving by the driver was proved on record.”

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Therefore, the acquittal by the Criminal Court will not

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help the petitioner.

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Vishal Walia admitted that he was intoxicated. He did

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not have a driving licence or the documents. It was laid down by this Court in Sanjay Arora vs. Pritam Singh 2 006SCC OnLine HP 34: 2006 ACJ 1163 , that when the scooterist was intoxicated and had concealed the material facts, it can be presumed that the accident had occurred due to the negligence of the driver of the scooter. It

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was observed at page 1167:

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“24. This by itself may not be sufficient ground to hold that the claimant or the other scooter driver was negligent. However, when this is coupled with the fact that the claimant has tried to hide material facts, especially with regard to driving the scooter, the number of persons on the scooter, the manner in which the accident occurred, etc., it can safely be presumed that accident had occurred due to rash and negligent driving of the scooter driver who along with pillion riders was under the influence of alcohol at the relevant time.

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25. The claimant who has obviously violated sections 128 and 185 of the Motor Vehicles Act and has told blatant lies in court cannot be granted any relief. The claimant-appellant has miserably failed to prove that the bus of the respondents was in any manner involved in the accident. The appeal is devoid of any merit and the same is dismissed with costs quantified at ₹ 3,000.”

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Mr. P.S. Goverdhan, learned Senior Counsel relied upon

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the judgments in Minu Rout v. Satya Pradyumna Mohapatra , ( 2013) 10 SCC 695, JijuKuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166, Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma, (2015) 2 SCC 180 and Mangla Ram v. Oriental Insurance Co. Ltd. , ( 2018) 5 SCC 656 . However, none of these judgments apply to the present case. In Minu Rout’s case (supra), the Hon’ble Supreme Court relied upon the F.I.R. to determine the question of contributory negligence. The F.I.R. in the present case clearly shows the negligence of the driver of the scooter. In Ashvinbhai

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Jayantilal’s case (supra) , the Hon’ble Supreme Court held that the two-wheeler was dragged up to 20-25 ft, which showed the high speed of the truck. In the present case, it is not shown that the two-wheeler was dragged even for 1 foot. Thus, this judgment does not apply.In Mangla Ram’s case (supra) the Hon’ble Supreme Court held that the site plan does not assist in determining the negligence. In the present case, no site plan has been produced. The respondents have relied upon the FIR and the statement of the Investigation Officer.

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It was submitted that the claimants are entitled to the enhancement of the compensation. Reliance was placed upon the provision of Order 41 Rule 33 of CPC in support of this submission. This submission is not acceptable. Order 41 of 33 of CPC was examined by Hon’ble Supreme Courtin Banarsi v. Ram Phal , (2003) 9 SCC 606 and it was held that when the decree is partly in favour of the appellant and partly in favour of the respondent, the respondent must file an appeal or cross-objection against that part of the decree, which is against him. However, he needs not to file any appeal or cross-objection when the decree is entirely in his favour and there are some findings against him. It was

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observed:

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“10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 subrule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any crossobjection. However, the insertion made in the text of subrule (1) makes it permissible to file a cross-objection against a finding . The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which the decree is in his favour; however, if he proposes to attack any part of the decree he must take crossobjection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:

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( i ) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.

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( ii ) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.

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( iii ) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

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11. In the type of case ( i ) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so postamendment too. In the type of cases ( ii ) and ( iii ) preamendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in

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the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.

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12. The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross-objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post-1976 amendment. In a suit seeking the specific performance of an agreement to sell governed by the provisions of the Specific Relief Act, 1963 the court has the discretion to decree the specific performance of the agreement. The plaintiff may also claim compensation under Section 21 or any other relief to which he may be entitled including the refund of money or deposit paid or made by him in case his claim for specific performance is refused. No compensation or any other relief including the relief of refund shall be granted by the court unless it has been specifically claimed in the plaint by the plaintiff. Certainly, the relief of specific performance is a larger relief for the plaintiff and more

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onerous to the defendant compared with the relief for compensation or refund of money. The relief of compensation or refund of money is a relief smaller than the relief of specific performance. A plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right to file an appeal against the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decree in spite of one of the alternative reliefs having been allowed to him because what has been allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff and instead, a decree of smaller relief such as that of compensation or refund of money or any other relief being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an appeal of his own or by taking cross-objection.

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13. We are, therefore, of the opinion that in the absence of cross-appeal preferred or cross-objection taken by the plaintiff-respondent, the first appellate court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants, the first appellate court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific

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performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the first appellate court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out-and-out decree for specific performance of the agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection.

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After analysing the relevant case law, the Hon’ble

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Supreme Court held that the position of the appellant cannot be worse than what it would have been if he had not appealed. It was

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observed:

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“22. For the foregoing reasons, we are of the opinion that the first appellate court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first appellate court has reduced the appellants to a situation worse than what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first appellate court.”

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The Hon’ble Supreme Court considered the provisions

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of Order 41 Rule 33 of CPC with reference to the claim petitions in Ranjana Prakash v. Divl. Manager , ( 2011) 14 SCC 639 , and held that the power under Order 41 Rule 33 of CPC cannot be invoked to get

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a larger or higher relief, for example when the claimants do not

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file any appeal or cross-objections, the compensation cannot be increased in an appeal by the owner or the insurer for reducing the compensation nor can the compensation be reduced in an appeal seeking the enhancement of the compensation. It was observed:

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“ 6. We are of the view that the High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of the future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by ₹ 23,134 being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that the claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections.

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7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial

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court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.

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8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation . (Emphasis supplied)

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In Janabai v. ICICI Lombard Insurance Co. Ltd. , ( 2022) 10

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SCC 512 , the Hon’ble Supreme Court held that the High Court

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cannot examine the question of enhancement in an appeal filed by the Insurance Company; however, the Hon’ble Supreme Court can grant the relief in exercise of power under Article 142 of the Constitution of India. It was observed:

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“13. The appellants have not filed any appeal seeking enhancement of compensation awarded by the Tribunal before the High Court. The Constitution Bench judgment in National Insurance Co. Ltd. v. PranaySethi [ National Insurance Co. Ltd. v. PranaySethi , (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] , was rendered when the appeal was pending before the High Court but since the appeal filed by the Insurance Company was accepted, there was no occasion for the High Court to examine the question of enhancement of compensation . We find that the appellants are entitled to enhanced compensation particularly in respect of future prospects and other damages in terms of the judgment of this Court in PranaySethi [National Insurance Co. Ltd. v. PranaySethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . Therefore, in the exercise of powers conferred under Article 142 of the Constitution, we have decided to recompute the amount of compensation to be in tune with the Constitution Bench judgment.”

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41. Similarly, it was held in S atya Prakash Dwivedi v.

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Munna, 2021 SCC OnLine SC 3435 , that Order 41 Rule 33 of CPC does

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not confer any unrestricted right to interfere with the decree, which is not assailed because the Hon’ble Appellate Court does not agree with the opinion of the Court appealed from. It was observed:

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“13. Upon a plain reading of Order XLI Rule 33 of the CPC, it reveals that the Appellate Court has the power to pass any decree or order which ought to have been passed, and to pass such other decree or order as the case may require. Notwithstanding that the appeal is against a part of the decree, this power may be exercised by the court in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. However, the said power must be exercised with caution or circumspection, particularly, in the absence there being any cross objection or appeal filed by the respondents. Such a power has to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of the rights of the parties.

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14. The aforesaid Rule does not confer unrestricted rights to interfere with decrees which are not assailed merely because the appellate court does not agree with the opinion of the court appealed from. It is the duty of the appellate court to decide the appeal in accordance with the law. The appellate court must apply its judicial mind to the evidence as a whole while deciding a case and a judgment on merits should not be lightly interfered with or reversed purely on technical grounds unless it has resulted in a failure of justice.

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It was submitted that the Courts are under a duty to provide just compensation and they can award the compensation higher than what has been claimed by the claimants; therefore, the Appellate Courts are not powerless to enhance the compensation when they find that inadequate compensation has been awarded. This submission overlooks the distinction between the original Court and the Appellate court. The MACT has the vast

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power to award the compensation even on the police report and is not bound by the claim made by the claimant. However, if the claimant is satisfied with the award and does not file an appeal, the Appellate Court is precluded from interfering with the award even if it is in adequate because as was said Hon’ble Supreme Court, the position of an appellant cannot be worse than what it would have been had he not filed any appeal.

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In the present case, the appellants have filed the appeal aggrieved form determination of their liability to the extent of 50%. The Appellate Court can reduce their liability but cannot enhance the same in the absence of a cross-appeal or cross-objection filed by the claimants, as per the judgments of the Hon’ble Supreme Court. The fact that no appeal was filed by the claimants shows that they are satisfied with the award and there is no justification for interfering with the award passed by the learned Tribunal in an appeal filed by the other party. Therefore, the submission that this Court should enhance the award cannot be accepted.

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