(O&M) Sushila and Ors. Vs Sanjay and Ors.

Th e present appeal has been pre f erred by the appellants-claim a nts against the aw a rd dated 05.04.2007 passed in claim petition filed under Sec t ion 166 of the Mot o r Vehicles Act, 1988, whereby the learned Motor Accident Claims Tribunal, Pani p at (for short, ‘the Tribunal’), d ismissed the claim petition of the appellant-claim a nts.

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FACTS NOT IN DISPUTE

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Br i ef facts of the case are that o n 20.06.2005, Hawa Singh (since deceased) and his son Satender Kumar w e re riding a motor-cycle bea r ing registration No . HR-60-1266 for going towar d s village Bapoli from his vil l age Bhrampur. At a bout 8.30 PM, when they reac h ed near the gate of a warehouse, a motor-cycle be a ring registration No.HR-60-4 0 30 (hereinafter referred to as the offending moto r -cycle) driven at a very high sp e ed by Sanjay respondent No.1 i n a rash and negli g ent manner from the opposit e direction, hit the motor-cycl e of TRIPTI SAINIHawa Singh a n d his son Satender Kumar. T hey fell down on the road. T he 2025.03.20 15:25 I attest to the accuracy and integrity of this document

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deceased recei v ed multiple grievous injuries. He was taken to Jindal Nur s ing Home, Panipat where he remained admitted as indoor patient for two days. A fter two days, whe n he was being taken to PGIM S Rohtak from the said hospital , he succumbed to h i s injuries on the way near Goh a na. The deceased was 42 years old at the time of h i s death. He was in agriculture a nd dairy farming business and w as earning Rs.15,0 0 0/-per month from the said av o cation.

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Upon notice of the claim petitio n , respondents appeared and fi led written reply de n ying the factum of accident/co m pensation. 4. Fr o m the pleadings of the parties, the Tribunal framed the follo w ing

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issues:-

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Whether the accident in question took place due to r ash and negligent driving of ve h icle No.HR-60-4037 by respon d ent

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No.1? OPP

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If issue No.1 is proved to what amount of compensa t ion the claimants are entitled to a nd from whom? OPP.

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Whether the respond e nt No.3 is not liable to pay a ny compensation in view of POS taken by it in the wri t ten statement? OPR-3

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Relief.

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Af t er taking into consideration t h e pleadings and the evidence on record, the l e arned Tribunal dismissed t he claim petition. Hence the claimants/appel l ants filed the present app e al for grant of compensat i on. SUBMISSIONS OF LEARNED COUNSELS FOR THE PARTIES

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Le a rned counsel for the claima n ts-appellants contends that cl a im TRIPTI SAINIpetition is dism i ssed only on the ground that th e re is a delay of 24 days in lod g ing 2025.03.20 15:25 I attest to the accuracy and integrity of this document

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of the FIR and f urther on the ground that the a p pellants were not able to prove the factum of compromise due to which the FIR w a s delayed. He, therefore, prays t hat the present app e al be allowed.

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Pe r contra, learned counsel for t h e respondent-Insurance Comp a ny, however, vehe m ently argues that the award has rightly been passed and the learned Tribunal has rightly dismissed the clai m petition filed by the claimants. He therefore, prays for dismissal of the appeal.

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I h a ve heard the learned counsel f o r the parties and perused the w h ole record of this c a se.

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Th e relevant portion of the award i s reproduced as under:- “ 10 . In order to prove this iss u e, one of the claimants Sate n der Ku m ar appeared as PW.1. As per c ase of the claimants, he was ri d ing th e motor cycle with his father w hen accident took place and w as th u s, an eye-witness to the accide n t. He has stated that on 20.6.2 0 05, he and his father were riding a m o tor cycle for going towards village Ba p oli from their village. His fath e r was driving the motor cycle a nd he was a pillion rider. At about 8.30 pm, when they reached ne a r a wa r ehouse, the offending motor cy c le driven at a very high speed a nd in a rash and negligent manner by Sanjay respondent No.1 came fr om th e opposite direction and hit thei r motor cycle. They fell down on the ro a d. His father fell on the meta l portion of the road and rece i ved multiple injuries whereas he fell o n the kacha portion of the road. He ha s further stated that the accid e nt was witnessed by Prem Si n gh Sa r panch of their village and one Jagdish of Village Bhrampur. T hey ar r ived at the spot. All of them took his father in Jindal Nur s ing

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Home, Panipat, where he remai n ed admitted upto 22.6.2005. On 22.6.2005, his father was being taken to PGIMS Rohtak when he su c cumbed to injuries near Goh a na. His dead body was take n to vil l age and cremated. They did n ot report the matter to the Po l ice. Se v eral panchayats were conven e d in the village to settle the matter at panchayat level with respo n dent no.1, but with no re s ult. Ul t imately, they reported the ma t ter to the police and got a c ase re g istered against respondent no.1 for having caused the acciden t . In cr o ss-examination, he added that h e did not get any treatment a s he ha d received only simple injuries.

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Prem Singh alleged eye-wit n ess to the accident is examine d as P W .2. He has stated that on the d a y of accident, he and one Jag d ish we r e riding a motor cycle for g o ing to Village Bapoli from t h eir Vil l age Bhrampur. Hawa Singh d e ceased and his son Satender w ere go i ng ahead of them in the same d i rection on their motor cycle. H a wa Si n gh was driving the motor cycle a nd his son was the pillion ride r . At ab o ut 8.30 pm, when they reached near a warehouse respondent n o.1 ca m e from the opposite direction d riving a motor cycle in a rash a nd ne g ligent manner and hit the sam e against the motor cycle of H a wa Si n gh deceased. Hawa Singh fell down on the metal portion of the ro a d, whereas his son Satender fe l l on the kacha portion of the r o ad. Aft e r causing the accident respon d ent no.1 sped away on the m o tor cy c le. They all shifted Hawa Sing h to Jindal Nursing Home, Pan i pat In cross examination, it was sug g ested to him that no accident h ad ta k en place in his presence, w h ich fact he denied. It was a lso

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su g gested to him that the offendi n g motor cycle was not involve d in th e accident in any way which fact he again denied. 11. On the other hand, respon d ent no.3 examined its investig a tor Jit e nder Singh Balee as RW.1. He has stated that the Orie n tal Insurance Company (responden t no.3) had appointed him as in v estigator to investigate the p resent case. He visited vill a ge Bh r ampur where claimants reside a nd recorded the statement of P W1 Sa t ender Kumar. He also inspect e d the file of the criminal case a nd ob t ained the photocopy of chall a n and mechanical report of the of fe nding motor cycle. On compl e tion of investigation, he submi t ted his report Ex.R1. As per his report , the offending motor cycle was not in v olved in the accident in any wa y and that it was a case of collu s ion be t ween the claimants and respon d ent no.1 and 2 12 . Having gone through the ev i dence on file, submissions mad e by th e learned counsel for the partie s , connected circumstances, I a m of th e view that the offending mot o r cycle was not involved in the ac c ident in any way and that it i s a case of collusion between the claimants and respondents no.1 a n d 2. There are two reasons for the sa m e. One is delay of 24 days in l o dging the FIR. It is true that d e lay by itself is no ground to suspect t h e case of the claimants that it w as th e respondent no.1 and none else who had caused the accident w h ile dri v ing the offending motor cycle rashly and negligently, if prop e rly ex p lained. In this case the claima n ts have sought to explain the d e lay by stating that respondent no.1 a nd 2 approached them for ou t of co u rt settlement and that pancha y ats were also convened for out of

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co u rt settlement, but when the matter could not be settle d at pa n chayat level, the matter was re p orted to the Police, but no me m ber of a ny such panchayat has been examined to prove as to what was the de c ision taken by the panchayat w hich the respondents No.1 and 2 re fu sed to obey, nor PW.1 Satende r Kumar claimant has stated a w ord ab o ut the same. It leads to the con c lusion that no such panchayat w as co n vened nor any efforts were m a de for out of court settlement a nd th a t the story on this point has b e en concocted by the claimant s to co v er up the delay.

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The second most important r eason to disbelieve the case o f the claimants in the mechanical re p ort dated 27.7.2005 Ex.R5. the of fe nding motor cycle was taken i n to possession by the police an d on 27.7.2005, it was examined by the mechanic of the police. On ex a mination, no damage of any ki n d to the offending motor cycle w as fo u nd to have been caused. There was even no scratch on the m o tor cy c le. It can be argued that it w a s possible that no damage to the of fe nding motor cycle was caused i n the accident, but if the claim a nts ar e to be believed, it was a he a d on collision and the impac t of co l lision between both the motor c ycles was so forceful that it tot a lly de s troyed the motor cycle riding b y the deceased causing loss of m ore th a n Rs.30,000/- to the claimants a s pleaded in para no.22 and 2 4 of th e petition. It cannot be believed that the motor cycle ridden by the de c eased was totally damaged a n d not even a single scratch w as ca u sed to the offending motor cycl e .

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13 . The presence of PW.1 and PW.2 at the time of accident is a lso do u btful. Again it cannot be b e lieved that the motor cycle, the de c eased and PW.1 Satender were riding, was totally damaged in the ac c ident and PW.1 escaped only with minor injuries which did not re q uire medical treatment. If it is believed that for any reason wh a tsoever, he escape only w i th minor injuries, there is no ex p lanation as to why it took him a nd PW.2 Prem Singh, two hour s in ta k ing the deceased to the hospit a l. The accident had taken plac e at 8.30 pm, and the deceased was brought to Jindal Nursing Home, Pa n ipat at 10.30 pm as per state m ent of PW.3 Dr. Rajender Pars h ad Jindal. The distance between the p l ace of accident and Jindal Nur s ing Home was merely 14/15 km. Had P W.1 Satender Kumar been pre s ent at t he time of accident, he would n o t have wasted two hours in shi ft ing his father to a hospital when the a c cident had taken place not at a far aw a y place from Panipat town, wh e re there are number of hospital s to pr o vide prompt medical care to su c h like patients/injured. 14. Learned counsel for the c l aimants has cited a judgmen t of Hon'ble Madras High Court in "New India Assurance Company Ltd. Vs. G. Vijaya Kandiban & Anr. IV (2006) ACC 96" to show t hat statements of the witnesses recor d ed by the Court on oath are on hi g her pedestal than the FIR. I do agree that FIR is not a substa n tial pi e ce of evidence and the statemen t s of the witnesses recorded on o ath ar e certainly on higher pedestal t han the FIR, but in this case, the qu e stion is whether the claimants h ave been able to explain the d e lay

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in lodging the FIR and if not it s consequence coupled with o t her evi d ence and circumstances on the f ile which I have discussed abo v e. 15 . For the reasons recorded a b ove, this issue is decided against th e claimants.”

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ANALYSIS OF THE RECORD

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Sa t ender, eye-witness, was examined as PW-1, who stated that his father was dri v ing the motor-cycle and he w a s pillion-rider thereon and in his statement he st a ted the whole factum of accid e nt and the factum of death of his father on the w ay to PGIMS, Rohtak, where D r. Jindal of Jindal Nursing Ho m e, Panipat referre d his father to PGIMS Roht a k. He further stated that du e to intervention by the village Panchayat, an atte m pt for settlement was made w ith respondent No. 1 , Sanjay, but the compromise e fforts failed, leading to subseq u ent lodging of the F IR. Despite extensive cross-examination, his credibility remai n ed intact. The Trib u nal’s failure to accord due we i ght to this unimpeached testim o ny constitutes a m a nifest error.

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FI R is Ex.PA and a perusal of t h e same shows that the factu m of accident is stated therein. 12. Pr e m Singh, Ex-Sarpanch, Village Chhajpur, was examined as P W -2, who alongwith Jagdish was going ahead of H awa Singh (deceased) and his son Satender. He i n his examination-in-chief has s t ated the whole factum of accid e nt. His statement f u lly aligns with the version give n by PW-1 (Satender). PW-2 (P r em Singh), too, wit h stood cross-examination witho u t any material contradictions b e ing elicited. The Tr i bunal’s disregard of such indep e ndent and corroborative testim o ny of eye-witness is legally untenable.

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In motor accident claims, the sta n dard of proof is preponderanc e of probabilities, n o t proof beyond a reasonable do u bt. The reliance at this stage ca n be made to the jud g ment rendered by the Hon’ble Supreme Court in the case of A n ita Sharma Vs. New India Assurance Co. Ltd. 2 0 21(1) SCC (Crl) 473, wherein the Supreme Court h as held as under :-

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“2 2 . Equally, we are conc e rned over the failure of the H igh Co u rt to be cognizant of the fact t h at strict principles of evidence a nd sta n dards of proof like in a crimi n al trial are inapplicable in M A CT claim cases. The standard of pr o of in such like matters is on e of pr e ponderance of probabilities, ra t her than beyond reasonable do u bt. One needs to be mindful that the a pproach and role of Courts w h ile ex a mining evidence in accident c l aim cases ought not to be to f ind fa u lt with non-examination of som e best eyewitnesses, as may hap p en in a criminal trial; but, instead sh o uld be only to analyze the mate r ial pl a ced on record by the parties t o ascertain whether the claima n t’s ve r sion is more likely than not t r ue. A somewhat similar situa t ion ar o se in Dulcina Fernandes v. Jo a quim Xavier Cruz (2013) 10 S CC 64 6 , wherein this Court reiterated t hat:

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“7. It would hardly need a m ention that the plea of neglig e nce on the part of the first resp o ndent who was driving the pic k up van as set up by the claim a nts was required to be decide d by the learned Tribunal on the touchstone of preponderanc e of probabilities and certainly not on the basis of proof bey o nd reasonable doubt.”

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T h e corroborated testimony of P W s 1 and 2 suffices to establish the factum of the a c cident.

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Dr. Rajinder Parshad Jindal, Ji n dal Nursing Home, Panipat w as examined as P W -3, who testified that Hawa Singh (deceased) was admitted in his hospital on 20. 0 6.2005 (i.e. the date of accide n t) at 10:30 PM with the histor y of road side accid e nt. He further stated that Haw a Singh (deceased) got severe h ead injury and fract u re both bone right leg and dec e ased was treated by Neuro Surgeon Dr. Sanjay Gu p ta, who was working in his N u rsing Home. He further stated t hat deceased was o p erated in his hospital in his pr e sence by Dr. Sanjay Gupta. P W -3 Dr. Rajinder Pa r shad Jindal further stated that d eceased was quite serious and r u qa was sent to the p olice station regarding decease d ’s admission in his hospital. P W -3 Dr. Rajinder P a rshad Jindal proved Ex.PB, w h ich was photocopy of rukka. He further stated t h at Hawa Singh (deceased) was referred to PGIMS Rohtak du e to the seriousness of his condition. He was cross- e xamined at length, but his vera c ity could not be sh a ken. This medical testimony es t ablishes both the nature of inju r ies sustained and t heir direct connection to the a ccident. The Tribunal’s failur e to consider this e v idence amounts to a pervers e appreciation of material fact s . A perusal of the above shows that the learne d Tribunal has totally ignored the evidence on re c ord which proves the factum of accident and dismissed the cl a im petition on flim s y grounds.

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A p erusal of the written reply filed by respondent No.1 (Sanjay) dr i ver of the offendin g vehicle further shows that the r e is an admission of registratio n of FIR against h i m. However, the learned Tri b unal, instead of relying on the overwhelming e vidence, dismissed the claim pe t ition.

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In v iew of the above, the present a p peal is allowed and the finding s of the Tribunal o n Issue No.1 are hereby set aside. Consequently, Issue No. 1 is decided in fav o ur of the appellants-claimants and against the respondents. T he appellants-clai m ants are held entitled to compe n sation.

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So , far as Issue Nos.2 and 3 are c oncerned no finding was give n by the learned Tri b unal and evidence is required t o be led for deciding issue No.2 and 3. Therefore, fo r decision on Issue Nos. 2 an d 3, the matter is remanded bac k to the Tribunal to decide the same within a peri o d of two months from the dat e of receipt of copy o f this judgment.

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Th e insurance company is here b y directed to deposit the cur r ent scheduled fees t o Mr. Aseem Aggarwal, Advo c ate within a period of twenty d ays from the date o f receipt of copy of this judgment, in view of the order passe d in FAO No.1682 o f 2007 dated 18.07.2024 by this Court.

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Pe n ding application(s), if any, also stand disposed of.

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March 04, 2025 (SUDEEPTI SHARMA) tripti JUDGE

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Wheth e r speaking/non-speaking : Spea k ing Wheth e r reportable : Yes/ N o

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(O&M) Sushila and Ors. v. Sanjay and Ors.

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(O&M) Sushila and Ors. v. Sanjay and Ors.

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