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Rajasthan High Court · body

2005 DIGILAW 3049 (RAJ)

Bhanwar Lal Verma v. Sharad Tholia

2005-11-18

R.S.CHAUHAN

body2005
Honble CHAUHAN, J.–In the afternoon of 14.12.1988, when the appellant was going from Panch Batti Circle to Ajmeri Gate, on M.I. Road, one of the busiest roads of Jaipur, without any signal, the respondents Car hit the appellant from the back. Consequently, not only was the Scooter damaged, but more importantly the appellant suffered a fracture of his hipbone. The appellant had to undergo an operation whereby a steel road was inserted in his hip joint. According to the appellant, he stayed in SMS Hospital at Jaipur for five days. Subsequently, because the Doctors of the Hospital were on strike, therefore he was shifted to the Sharma Nursing Home where he stayed for almost 80 days. Consequently, he filed a claim petition before the Motor Accident Claims Tribunal, Jaipur, for compensation of Rs. 1,03,305/-. (2). Since the Driver and the owner did not appear before the Tribunal, therefore the Tribunal proceeded ex-parte against them. The Insurance Company filed its written statement wherein it admitted that the offending vehicle was insured with them, but denied the factum of the accident. The learned Tribunal framed six issues. In order to prove its case, the appellant examined four witnesses. But, the respondents did not examine any witness from their side. After hearing both the parties, vide award dated 2.6.1995 the learned Tribunal was pleased to dismiss the claim petition. Hence, the present appeal before us. (3). Mr. Mahendra Goyal, learned counsel for the appellant, has contended that the learned Tribunal has erred in rejecting the claim petition on the ground that the FIR was lodged after an inordinate delay of one and a half months. It has further rejected the claim petition on the ground that although the police filed a negative Final Report, the appellant did not challenge the same before the criminal court. Thus, according to him the learned Tribunal has erred in basing its logic on the outcome of the criminal case. Moreover, according to him the testimony of the injured is corroborated by the site plan (Ex.6), Recovery Memo of the Scooter (Ex.7) and by the Recovery Memo of the Car (Ex.9). Hence, there is both oral and documentary evidence to establish the occurrence of the accident. Therefore, the learned Tribunal has ignored the evidence, which was readily available on record. (4). On the other hand, Mr. Hence, there is both oral and documentary evidence to establish the occurrence of the accident. Therefore, the learned Tribunal has ignored the evidence, which was readily available on record. (4). On the other hand, Mr. Vinod Tyagi the learned counsel for the Insurance Company, has supported the award. According to him, despite the appellant having an adult son, the FIR was not lodged for more than one and a half months. Furthermore, the explanation given by the appellant that there was no one in the family who could have lodged the FIR is belied by the fact that he had an adult son, Prakash Chand, who could have easily lodged the FIR. Therefore, not only the factum of the accident is suspect, but the credit-worthiness of the witness is doubtful. Moreover, while the appellant claims that the Scooter was ``badly damaged, the mechanical report indicates that merely the break light cover was broken and the part of right side of the Scooter was damaged. Thus, the Scooter had suffered minor damages. Hence, the documentary evidence on record contradicts the appellants testimony. Moreover, the appellant did not file a protest petition against the negative Final Report submitted by the police. Thus, according to the learned counsel the award does not call for any interference. (5). We have heard the counsels for the parties, scanned the evidence on record and critically analyzed the impugned award. (6). A bare perusal of the award reveals that the conclusions drawn by the learned Tribunal are based on the progress and failure of the criminal case, which was initiated by the lodging of the FIR. The learned Tribunal presumes that the outcome of a civil proceeding would be co-related to and would depend on the outcome of the criminal proceeding. Such a presumption is legally unwarranted. For, such a presumption supposes that the success of a claim petition is dependent on the success of the criminal trial. It further presupposes that the existence of FIR, of a criminal proceeding is a sine quo non for the initiation of a claim petition. Such a apriori thinking treats the FIR and the criminal proceeding as a substantive piece of document, whereas an FIR is only a corroborative evidence. It further presupposes that the existence of FIR, of a criminal proceeding is a sine quo non for the initiation of a claim petition. Such a apriori thinking treats the FIR and the criminal proceeding as a substantive piece of document, whereas an FIR is only a corroborative evidence. Although the lodging of FIR in an accident claim is desirable, but its existence or non- existence cannot be made a basis for the success of a claim filed by an injured person. Considering the fact that a large population lives in desolate and remote area where the nearest police station might be inaccessible, to insist on the existence of FIR for the success of a claim petition, would be to cause injustice to such claimants. In the case of New India Insurance Co. vs. Smt. Pinki and Ors., (S.B. Civil Misc. Appeal No. 630/2000, decided on 15.3.2001), the Insurance Company had argued that according to Rule 10.2 of the Rajasthan Motor Vehicle Rules, 1990 (henceforth to be referred to as the Rules of 1990, for short) it is mandatory that a copy of the FIR should accompany the claim petition. In case of copy of the FIR is not attached with the claim petition, then the claim petition is not maintainable. However, the High Court rejected the said contention and held that the use of the word ``Shall in Rule 10.2 of the Rajasthan Motor Vehicle Rules, 1990 would not make the provision a mandatory one. Thus, merely because a FIR is not lodged, that by itself is no ground for rejecting the claim petition. It further rejected the argument of the Insurance Company that in absence of a FIR, the claim petition would not be maintainable. Therefore, in the present case the entire approach of the learned Tribunal is askew. Thus, the learned Tribunals logic is perverse. (7). In the present case, the appellant has examined four witnesses. AW.1 is the appellant himself, AW.2 is his son Prakash Chand, PW.3 Rajmal is a chance witness and AW.4 is Dr. M.K. Mathur, the Doctor who has treated the appellant. Prakash Chand in his testimony clearly states that the family members were under an impression that since his father was taken to the Hospital in an injured state, the Doctors at the Hospital would have informed the police then and there. M.K. Mathur, the Doctor who has treated the appellant. Prakash Chand in his testimony clearly states that the family members were under an impression that since his father was taken to the Hospital in an injured state, the Doctors at the Hospital would have informed the police then and there. It was only when they realized that no such information was given by the Doctors, that the appellant lodged a FIR with the police. Thus, under a mistake of fact the FIR was not lodged immediately. Moreover, at the time of the accident Prakash Chand was merely a 19 years old who cannot be expected to know the intricacies of the criminal justice system. Therefore, there is a reasonable explanation for the delay in lodging of the FIR. Hence, the learned Tribunal was not justified in dismissing the claim petition on the ground of inordinate delay in lodging of the FIR. (8). The learned Tribunal has not believed AW.3 Rajmal since he is a colleague of the appellant. But, merely because one of the witnesses is not creditworthy, it would not demolish the case of the claimant himself. Thus, the learned Tribunal has erred in throwing out the baby with the water. (9). Undoubtedly, the most important witness in the case is the injured himself. But, the learned Tribunal has disbelieved the appellant for frivolous reasons. According to the appellant, while he was driving the Scooter, the offending Car came from behind and without blowing its horn, the Car driver tried to overtake the Scooter on the right-hand side. Since the Car was being driven in a rash and negligent manner, it hit the Scooter on the back of the scooter on the right side. Consequently, the brake light cover and the number plate were damaged and the right hand side of the Scooter we badly scratched. Because of the said accident, the appellant lost his balance and fell. Resultantly, he broke his hip joint for which he had to be operated upon. This narration of fact is also supported by the site plan (Ex.6), by the Recovery Memo of the Scooter (Ex.7) and the Recovery Memo of the Car (Ex.9). Interestingly, according to the recovery memos of the Scooter and the Car, while the Scooter has suffered a damage on the right-hand side, the Car has suffered a damage on the left-hand side. Interestingly, according to the recovery memos of the Scooter and the Car, while the Scooter has suffered a damage on the right-hand side, the Car has suffered a damage on the left-hand side. Hence, apparently, the two vehicles had collided with each other. These two memos alongwith the site plan clearly corroborate the appellants testimony. The learned Tribunal has failed to discuss the site plan and the recovery memos. Therefore, the learned Tribunal has ignored the corroborative and documentary evidence, which were readily available on record. (10). The learned Tribunal is expected to adjudge a case on the basis of the evidence produced in the case, without giving too much of importance to the outcome of the criminal trial. It is, indeed, a settled position of law that the burden of proof is different in a criminal trial and in civil proceeding. In the case of Naveen Kumar Chopra vs. Surendra Kumar & Ors. (S.B. Civil Misc. Appeal No. 506/92, decided on 18.5.94) this Court held as under: It is trite law that Party is required to prove its case, which sets up the particular case. The claimant was required to establish that he met an accident due to rash and negligent driving of the Scooter driven by Surendra Kumar Malhotra. Once this fact was established, the burden shifted on the respondents to show that the accident did not happen in the way alleged by the claimant. It is to be remembered that in a criminal case the prosecution is required to prove its case beyond shadow of reasonable doubt. However, in civil cases, claimant can succeed on the basis of preponderance of probabilities only. In a motor accident claim, the claimant is not required to prove his case beyond shadow of reasonable doubt. It would suffice if he has proved his case on the basis of preponderance of probabilities. Further, a civil court is not found by the finding of a criminal trial. Moreover, merely because the appellant did not file a protest petition against the negative Final Report, from such an omission an inference cannot be drawn that the claim petition is a baseless and a frivolous one. Since the appellants testimony on the factum of the accident has not been demolished, there is no cogent reason for not believing him. Therefore, the reasoning of the learned Tribunal is lop-sided. (11). Since the appellants testimony on the factum of the accident has not been demolished, there is no cogent reason for not believing him. Therefore, the reasoning of the learned Tribunal is lop-sided. (11). Although the Tribunal has disbelieved the appellants testimony, but it still has concluded that the appellant is entitled to a compensation of Rs. 30,000/-. According to AW.4, Dr. Mathur, the petitioner has suffered a permanent disability of 12%. Admittedly, a steel road was placed inside the appellants body in order to hold the bones of the hip joint together. Consequently, the appellant has difficulty in walking and in using his leg properly. Considering the medical expenses incurred by the appellant, considering the pain and agony suffered by the appellant, considering the existence of disability, considering the future inconvenience, disappointment, frustration and mental stress in life, we deem it proper to enhance the compensation from Rs. 30,000/- to Rs. 1,00,000/-. We are fortified in our decision by the guidelines established by the Honble Supreme Court in the case of R.D. Hattangadi vs. Pest Control (India) Ltd. (1995 ACJ 366). (12). Thus, we allow this appeal and direct the respondents to pay the appellant a compensation of Rs. 1,00,000/- alongwith interest of 9% p.a. from the date of filing of the claim petition. We further direct the learned Tribunal to realize the compensation from respondent No. 3 within a period of two months. No orders as to costs.