Allowed

Bhagat Singh v. Jai Bhagwan & Ors.

Punjab & Haryana HC14 Sept 2011CR/5815/2010

Case brief

AI extract

What is this about?

The High Court allowed a revision petition, setting aside an order dismissing a claimant's application for additional evidence. The court held that the Tribunal must conduct a meaningful enquiry, empowered to summon investigating officers under Section 165 of the Evidence Act and Section 168 of the MV Act to ascertain truth.

What did the court decide?

The impugned order dismissing the application for additional evidence was set aside, and the application to summon the investigating officer was allowed.

Bhagat Singh Vs Jai Bhagwan & Ors. — Execution and Attachment | Punjab & Haryana HC (2011)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.5815 of 2010 (O&M) Date of decision: 14^th September, 2011

Bhagat Singh

… Petitioner

Versus

Jai Bhagwan and others

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… Respondents

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CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

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Present: Mr. Naveen Singh Panwar, Advocate for the petitioner. None for the respondents.

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Whether Reporters of Local Newspapers may be allowed Yes to see the judgment?

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Whether to be referred to the Reporters or not? Yes

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Whether the judgment should be reported in the Digest? Yes

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KANWALJIT SINGH AHLUWALIA, J. (ORAL)

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Civil Misc. No.12651-CII of 2011

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Application is allowed and exemption is granted from filing

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certified copy of claim petition (Annexure P-4).

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Civil Misc. No.12652-CII of 2011

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Application is allowed and claim petition (Annexure P-4) is

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taken on record.

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Civil Revision No.5815 of 2010

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Present revision petition has been filed against the impugned order dated 31^st August, 2010 passed by the Motor Accident

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Civil Revision No.5815 of 2010 (O&M)

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Claims Tribunal, Bhiwani (hereinafter referred to as, ‘the Tribunal’), whereby application filed by the claimant seeking permission to lead additional evidence was dismissed. It was pleaded in the application that Manish son of the petitioner had died in an accident. The accident was caused by an Indica car but under the wrong impression the eye-witness namely Vikas in the FIR had stated that the offending vehicle was a Maruti Alto. It was further stated that Nahar Singh, investigating officer had also recovered an Indica car and due to inadvertence the investigating officer could not be examined. Therefore, a prayer was made that the petitioner be permitted to examine Nahar Singh, ASI by way of additional evidence. It was urged before the Tribunal that during investigation it had come on record that the accident was caused by the Indica car and that car was also taken into possession by the investigating officer.

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The trial Court had declined the prayer for leading additional evidence on the ground that the fact that examination of the investigating officer is necessary, was already in the knowledge of the claimant and therefore, at a subsequent stage he cannot make such a prayer.

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Vide a separate Civil Misc. application, the claim petition has been taken on record as Annexure P-4. A perusal of the claim petition reveals that it was specifically stated therein that the accident was caused by the offending vehicle bearing registration No. HR-55-ET0183. Furthermore, it was also stated that regarding the accident, a case FIR No.277 dated 04.08.2007 was registered at Police Station Udyog Vihar, Gurgaon under Sections 279 and 304A IPC.

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Civil Revision No.5815 of 2010 (O&M)

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The Motor Vehicles Act, 1988 (hereinafter referred to as, ‘the Act’) is a beneficial Act. Taking into consideration the fact that in the claim petition particulars of the FIR were given and registration number of the vehicle was also mentioned, examination of the investigating officer namely Nahar Singh who had recovered and taken into possession the offending vehicle, or any other officer who was acquainted with the facts of the investigation, is necessary.

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This Court in ‘Surjit Kaur and others v. Sukhwinder Singh and others’ (FAO No.701 of 1996, decided on 20^th July, 2010) had noticed the provisions of Section 168 of the Act and had held that the enquiry under this Section is not the same as the trial under Codes of Civil or Criminal Procedure. This Court had further held that to give effect to the enquiry under Section 168 of the Act, the Tribunal under Section 169 of the Act can follow such a summary procedure as it thinks fit. In Surjit Kaur’s case (supra), it was further held as under:

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“Registration of the case; follow up action by the police; which includes inquest, post-mortem, recovery of any documents from the spot, site plan of the spot prepared by the Investigating Officer or by the Draftsman; photographs, if any, of the spot, are various circumstances, which can help the Tribunal to take the enquiry to its logical conclusion.”

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It will be further pertinent to notice here that in ‘New India Assurance Company Limited vs. Anita’ , order dated 6th January, 2010 in SLP (Civil) No.35537/2009, Hon’ble the Apex Court had held as under:

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“… … … By virtue of Section 169(2), the Tribunal is clothed with the powers of Civil Court for the purpose of

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Civil Revision No.5815 of 2010 (O&M)

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taking evidence on oath, enforcing the attendance of witnesses and compelling the discovery and production of documents and material objects but there is nothing in the Act from which it can be inferred that the Tribunal is bound by the technical rules of evidence… … …”

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The above said finding of Hon’ble the Supreme Court has been culled out from a judgment rendered by the Delhi High Court in ‘Mayur Arora v. Amit @ Pange and others’ (MAC.APP.609/2009 decided on 12^th April, 2010). Justice J.N. Midha of Delhi High Court, who has done pioneering work in the Motor Accident Claims Tribunal, in ‘Mayur Arora’s case (supra) held as under:

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“9.16. Somari Devi vs. Ragwar Singh in FAO No.884/2003 decided on 22nd May, 2009–

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This Court has elaborated the scope of Section 165 of the Indian Evidence Act, 1872. The relevant findings of this Court are reproduced hereunder:-

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‘12. The learned Tribunal could have invoked Section 165 of the Indian Evidence Act which is reproduced hereunder:-

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‘SECTION 165. JUDGE'S POWER TO PUT QUESTIONS OR ORDER PRODUCTION –

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The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any

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Civil Revision No.5815 of 2010 (O&M)

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answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this Section shall not authorize any Judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.’

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XXXX XXXX XXXX XXXX XXXX XXXX

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16. In Bartly vs. State , 55 Nebr 294 : 75 N.W.832 Harrison, C.J., said:

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‘It is undoubtedly necessary that the Judge who presided should acquire as full a knowledge of the facts and circumstances of the case on trial as possible, in order that he may instruct the jury, and correctly, to the extent his duty demands, shape the determination of the litigated matters, that Justice may not miscarry, but may prevail; and doubtless, it is allowable at times, and under some circumstances, for the presiding Judge to interrogate a witness.’

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17. The object of a trial is, first to ascertain truth by the light of reason, and then, do justice

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Civil Revision No.5815 of 2010 (O&M)

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upon the basis of the truth and the Judge is not only justified but required to elicit a fact, wherever the interest of truth and justice would suffer, if he did not.

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XXXX XXXX XXXX XXXX XXXX XXXX

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19. The Judge contemplated by Section 165 is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided.’

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10. THE ‘INQUIRY’ CONTEMPLATED UNDER SECTION 168 of MOTOR VEHICLES ACT, 1988

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10.1. The inquiry contemplated under Section 168 of the Motor Vehicles Act, 1988 is different from a trial. The inquiry contemplated under Section 168 of the Motor Vehicles Act arises out of a complaint filed by a victim of the road accident or an AIR filed by the police under Section 158(6) of the Motor Vehicles Act which is treated as a claim petition under Section 166(4) of the Motor Vehicles Act. These provisions are in the nature of social welfare legislation. Most of the victims of the road accident belong to the lowest strata of the society and, therefore, duty has been cast upon the police to report the accident to the Claims Tribunal and the Claims Tribunal is required by

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Civil Revision No.5815 of 2010 (O&M)

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law to treat the Accident Information Report filed by Police as a claim petition. Upon receipt of report from the police or a claim petition from the victim, the Claims Tribunal has to ascertain the facts which are necessary for passing the award. To illustrate, in the case of death of a victim in a road accident, the Tribunal has to ascertain the factum of the accident; accident having being caused due to rash and negligent driving; age, occupation and income of the deceased; number of legal representatives and their age. If the claimants have not produced copies of the record of the criminal case before the Claims Tribunal, the Claims Tribunal is not absolved from the duty to ascertain the truth to do justice and the Claims Tribunal can summon the investigating officer along with the police record.”

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In the light of position of law stated above, this Court is of the view that it is incumbent upon the Tribunal to hold a meaningful enquiry. Merely because the witness could not be produced at the relevant time, application made by the petitioner for summoning the investigating officer by way of additional evidence cannot be rejected.

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Hence, the present revision petition is accepted. The impugned order (Annexure P-3) dated 31^st August, 2010 is set aside and application (Annexure P-1) dated 23^rd April, 2010 filed by the petitioner for leading additional evidence is allowed.

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[KANWALJIT SINGH AHLUWALIA] JUDGE

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September 14, 2011 rps

Bhagat Singh v. Jai Bhagwan & Ors.

Case brief

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Bhagat Singh v. Jai Bhagwan & Ors.

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