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Himachal Pradesh High Court · body

2019 DIGILAW 1566 (HP)

Geeta v. General Manager, HRTC

2019-10-22

JYOTSNA REWAL DUA

body2019
JUDGMENT : Jyotsna Rewal Dua, J. Against dismissal of their claim petition in its entirety by the learned Motor Accident Claims Tribunal-I, Sirmaur District at Nahan vide judgment dated 5.6.2018, instant appeal has been preferred by the claimants. 2. Shorn of unnecessary details, facts required for adjudication of the present appeal are:- 2(i). One Sh. Sonu Kumar was riding Motor Cycle bearing registration No. HP-15-9284 alongwith a pillion rider Sh. Abulesh on 16.5.2015. While driving from Kalka to Parwanoo, this motor cycle met with an accident involving bus bearing registration No. HP 03B-6148 owned by respondent No. 1 and driven by respondent No. 2. 2(ii). In the accident, Sh. Sonu Kumar suffered fatal injuries and died while on the way to PGI Chandigarh. Abulesh, the pillion rider also suffered injuries. 2(iii). Claim petition was preferred by the widow and minor son of the deceased Sh. Sonu Kumar claiming compensation of Rs. 15,00,000/-. The monthly income of the deceased was claimed @ Rs. 8000/- per month. It was further asserted that Sh. Sonu Kumar died on account of rash and negligent driving of the bus driven by respondent No. 2. 2(iv) The primary defence of respondents was that accident had occurred due to rash & negligent driving by Sh. Sonu Kumar himself regarding which an FIR was also lodged on the day of accident. 2(v). After considering the pleadings and the evidence led by the parties, learned Motor Accident Claims Tribunal held that the claimants failed to establish that the accident occurred due to rash and negligent driving of the bus by respondent No. 2. Accordingly, claim petition was dismissed. Aggrieved, instant appeal has been preferred by the widow and minor son of deceased. 3. I have heard Mr. Bimal Gupta, learned Sr. Counsel for the appellant, Ms. Reeta Thakur, learned counsel for respondent No. 1 and Mr. Shashi Shirshoo, learned counsel for respondent No. 2 and with their assistance gone through the record. 4. Observations:- 4(a). In its reply filed by the respondent No. 1-HRTC to the claim petition, a factual stand was taken that the bus in question was at its stationed position at Parwanoo Bus stop near PWD Store when motor cycle driven by Sh. Sonu Kumar in a rash and negligent manner struck against the bus. Sh. 4. Observations:- 4(a). In its reply filed by the respondent No. 1-HRTC to the claim petition, a factual stand was taken that the bus in question was at its stationed position at Parwanoo Bus stop near PWD Store when motor cycle driven by Sh. Sonu Kumar in a rash and negligent manner struck against the bus. Sh. Sonu Kumar tried to take pass from the wrong side i.e. conductor side; in the process the motor cycle fell down and he sustained injuries; the accident was on account of deceased's own fault, rash and negligent driving; in this regard FIR No. 51/15 was registered on the same day i.e. 16.5.2015 specifically mentioning that the accident occurred due to rash and negligent act of the driver of motor cycle No. HP 15-9284. 4(b) From the above averments made in the reply, it is apparent that the pleaded case of the respondent No. 1 HRTC was that the bus was in stationary position at Parwanoo bus stop near PWD store when motorcycle driven by Sonu Kumar struck against it. However, respondent No. 2/driver of the bus stated that the bus was moving when the motor cycle struck against its rear tyre. Thus there is apparent contradiction in the stand taken by the respondent No. 1 HRTC in its pleadings and the statement of driver as RW-1. In the reply filed to the claim petition, there is reference to four other motor cycles driven rashly and negligently ahead to the motor cycle in question with further averments that after their crossing the bus, the motor cycle in question reached the spot & struck against it. 4(c). In rejecting the claim petition, learned Motor Accident Claims Tribunal has relied heavily upon FIR No. 51 dated 17.05.2015, registered at police station Parwanoo to the effect that accident had occurred due to rash and negligent driving of the motor cycle in question. Record reveals that this FIR has only been marked and not exhibited. FIR marked 'X' was lodged on the complaint of one Sh. Anuj, stated to be the occupant of the bus. However, said Sh. Anuj has not been produced in the witness box. FIR, which is only marked, in the facts and circumstances of the instant case, can not be solely relied upon when content thereof are highly disputed by the claimants. It is apt to refer here to titled Narbada Devi Gupta Vs. However, said Sh. Anuj has not been produced in the witness box. FIR, which is only marked, in the facts and circumstances of the instant case, can not be solely relied upon when content thereof are highly disputed by the claimants. It is apt to refer here to titled Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and Another, (2003) 8 SCC 745 as under:- ".It is undisputed that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. The appellant cannot be allowed to question the correctness of the trial court's order dated 3-9-1982 whereunder the documents relating to rent were admitted and then marked as exhibits. The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipt and its due execution ..." (Paras 16 and 17) Hon'ble Apex Court in titled Life Insurance Corporation of India and another Vs Ram Pal Singh Bisen, (2010) 4 SCC 491 observed as under:- " ..Mere admission of document in evidence does not amount to its proof. It is not known under what circumstances, respondent-plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the appellant's case any further and much to the respondent's prejudice. It was the appellant's duty to prove documents in accordance with law. Filing of an enquiry report or evidence adduced during domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence as also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do ..." (Paras 26 &27) In titled Gian Chand Negi Vs. Menoka Manna and others, (2010) ACJ 1188 this Court held as under:- "22 ...This court in National Insurance Co. That documentary evidence as also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do ..." (Paras 26 &27) In titled Gian Chand Negi Vs. Menoka Manna and others, (2010) ACJ 1188 this Court held as under:- "22 ...This court in National Insurance Co. Ltd. V. Bimla Devi, (2006) ACJ 402 (HP), held that the documents, driving licence and the insurance policy, could not be looked into without having been properly proved in accordance with Evidence Act .." "26 ...But the application of principal of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance-sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognized and admit of no doubt ..." 27. In the present case, the documents Marks 'X' and 'Y' were placed on record much after the recording of the statement of the owner. He had no opportunity to rebut the same. The said documents are not the originals but only photocopies. Therefore, they cannot be looked into for want of having been proved on record. 28. The Apex Court in United India Insurance Co. Ltd. vs. Anbari and others, (2000) 10 SCC 523 , while dealing with a case arising out of a Motor Vehicles Act, has held that production of photocopy of a document was not sufficient to prove the genuineness of the document, particularly, when the same is under challenge ..." In titled Braham Dass Vs. Sanjay Kumar and Others, 2010 1 TAC 890 this Court held as under:- " .Importantly, none of these witnesses are neither the complainants nor the authors of the said FIRs. None of these witnesses have disclosed the outcome of the investigation of the FIR. Simply because the documents stand exhibited by the witnesses that by itself would not dispense with the requirement of proving the contents of the documents in accordance with law. None of these witnesses have disclosed the outcome of the investigation of the FIR. Simply because the documents stand exhibited by the witnesses that by itself would not dispense with the requirement of proving the contents of the documents in accordance with law. {Narbada Devi Gupta V. Birender Kumar Jaiswal, (2003) 8 SCC 745 } The Court below has heavily relied upon the contents of the FIR to disbelieve the testimony of the claimant's witnesses, which approach in my considered view, is not correct. Unless and until the author of the complaint, on the basis of which FIR was registered or the officer who had written the complaint were examined, the contents of the same could not have been relied upon to make out a totally new case. It is not that the contents of the FIRs have been made part of the pleadings by the parties. The purpose of proving the registration of the FIR was only to show the occurrence of the accident and nothing more. None of the parties had actually referred and relief upon the contents of the FIR even during trial. {National Insurance Co. Ltd. V. Rattni, (2009) 2 SCC 75 } Hence, the Court below seriously erred in heavily relying upon the same for rejecting the petition .." It was incumbent upon the respondent No. 1 HRTC to prove the FIR either by producing the complainant Sh. Anuj in the witness box or by producing any other contemporary. In absence of same, no reliance can be placed on this FIR in dislodging the claim petition, on account of alleged rashness and negligence recorded therein on part of deceased. Significantly, FIR Mark X was only a photocopy. 4(d). The fact of FIR being a photocopy, not proved in accordance with law, its contents disputed by claimants, become mere significant when read with statement of PW-1 Sh. Abulesh. The only eye witness of the incident, Sh. Abulesh stepped into the witness box and stated that:- he was pillion rider on motor cycle; the motor cycle was being driven by Sonu Kumar; motor cycle was not being driven in high speed; accident occurred on account of rash and negligent driving of the bus by respondent no. Abulesh. The only eye witness of the incident, Sh. Abulesh stepped into the witness box and stated that:- he was pillion rider on motor cycle; the motor cycle was being driven by Sonu Kumar; motor cycle was not being driven in high speed; accident occurred on account of rash and negligent driving of the bus by respondent no. 2; after the accident, while he was in the hospital, police had recorded his statement wherein he attributed the accident to the rash and negligent driving of the bus by respondent No.2. No effective cross-examination of this witness has been conducted by the respondents regarding their pleaded defence that deceased was driving motor cycle on wrong side of the road. 5. In view of the above, the order passed by the learned Motor Accident Claims Tribunal rejecting the claim petition, by relying upon the FIR and thus holding that the accident in question occurred on account of rash and negligent driving by the deceased and not on account of rash and negligent driving by respondent no. 2 is not in accordance with law. Therefore, matter is remanded back to the learned Motor Accident Claims Tribunal to take into consideration the entire evidence in view of the observations made above and decide the matter afresh in accordance with law. Parties through their learned counsel are directed to appear before Motor Accident Claims Tribunal-I, Sirmaur District, at Nahan on 19.11.2019. Record be returned forthwith. Accordingly, the petition stands disposed of alongwith all pending miscellaneous applications, if any.