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2022 DIGILAW 63 (UTT)

Atul Kumar Bhagat v. Vinod Kumar Kholiya

2022-03-25

S.K.MISHRA

body2022
JUDGMENT : S.K. MISHRA, J. 1. By means of the present appeal, the appellant has challenged the judgment and award dated 20.04.2011 passed by the learned Motor Accident Claim Tribunal/Addl. District Judge, Nainital, in M.A.C.P. No. 112 of 2008, dismissing the claim petition filed by the appellant. 2. The facts of the case, in brief, are that, on 22.04.2008, at about 09:20 a.m. the appellant was going by his motorcycle to attend to his duties in Nainital. A vehicle (Tavera No. UA-04D-0345), being driven rash and negligently by its driver towards Bhowali, dashed the appellant’s motorcycle near Jokhiya while overtaking. Due to this accident, the appellant sustained serious injuries and became unconscious. The appellant was taken to B.D. Pandey Hospital, Nainital, by people, who had gathered at the place of accident. After giving initial treatment, the appellant was referred to Sai Hospital, Haldwani, due to his serious condition. There, the appellant’s right hand was operated. The appellant was also informed that he has to undergo one more operation in future, which is expected to cost around Rs. 1,00,000/-. The appellant had already incurred expenses of Rs. 1,00,000/- in his treatment. Due to the accident, the appellant has become completely handicapped. The appellant was working in Zoological Garden, Nainital, as a Computer Operator on contractual basis and was getting a monthly salary of Rs. 6,000/-. In addition, the appellant was also earning Rs. 5,000/- per month from the work of Computer Hardware and Software. In this way, the appellant was having a total income of Rs. 11,000/- per month. On the basis of these facts, the appellant has claimed compensation of Rs. 10,00,000/- from the opposite parties, along with interest at the rate of 9%. 3. Opposite party No. 1 (Sri Vinod Kumar Kholiya), who is the owner of the offending vehicle, filed his written statement. In the written statement, it was, inter alia, stated that the appellant has not given any description in his claim petition regarding the number or the insurance of the motorcycle, of which the appellant claims to be the owner. On this ground, the claim petition filed by the appellant deserves to be dismissed being unclear and incomplete. It was further stated that no accident had taken place involving the vehicle of the opposite party No. 1 bearing No. UA-04D-0345. On this ground, the claim petition filed by the appellant deserves to be dismissed being unclear and incomplete. It was further stated that no accident had taken place involving the vehicle of the opposite party No. 1 bearing No. UA-04D-0345. The appellant had not given any written or oral information to the concerned Police Station in this regard. The appellant has impleaded opposite party No. 1 as a party to the claim petition merely to fetch money on the basis of a concocted story. The vehicle in question is insured with the National Insurance Company. 4. Opposite party No. 2 (National Insurance Company) filed its written statement, inter alia, stating that, as per the information received by the Company, no such accident had taken place. It was further stated that no First Information Report was lodged by the appellant with regard to the said accident and the whole story of the appellant is based on false and concocted facts. Apart from this, the Company did not receive any information under the Motor Vehicles Act. Hence, the claim petition filed by the appellant deserves to be dismissed. 5. Opposite party No. 3 (Sri Hem Singh Adhikari) did not choose to file any written statement although he was served sufficiently. Hence, vide order dated 30.08.2010, the proceedings were directed to be carried ex-parte insofar as he is concerned. 6. Opposite party No. 4 (Sri Kanchan Kumar Bhagat), who is the brother of the appellant, filed his written statement, inter alia, stating that, on 22.04.2008, the appellant was driving his motorcycle bearing No. UA-04E-2955 and was going to attend to his duties in Nainital at about 09:20 a.m. When he reached near Jokhiya, a vehicle (Tavera No. UA-04D-0345), being driven rash and negligently by its driver towards Bhowali, dashed the appellant’s motorcycle while overtaking. Due to this accident, the appellant sustained serious injuries on his body. It was further stated that his brother, i.e. the appellant, was driving his motorcycle very carefully and at a slow speed on his left side. It was further stated that, at the time of the accident in question, his motorcycle was insured with the United India Insurance Company Ltd. and the brother of the opposite party No. 4, i.e. the appellant herein, was carrying a valid driving licence. 7. It was further stated that, at the time of the accident in question, his motorcycle was insured with the United India Insurance Company Ltd. and the brother of the opposite party No. 4, i.e. the appellant herein, was carrying a valid driving licence. 7. Opposite party No. 5 (United India Insurance Company Ltd.) also filed its written statement, inter-alia, stating that the accident in question took place on account of rash and negligent driving by the driver of the offending vehicle. It was further stated that the Company was not given any information regarding the said accident under the provisions of the Motor Vehicles Act. Hence, the claim petition deserves to be dismissed so far as opposite party No. 5 is concerned. 8. On such pleadings, the learned Tribunal framed the following five issues: (i) Whether, on 22.04.2008 at about 09:20 a.m. the appellant was going on his motorcycle for attending to his duties at Zoological Garden, and, when he reached near Jokhiya, the vehicle going from Nainital towards Bhowali (Tavera No. UA-04D-0345), being driven rashly and negligently by its driver, dashed the motorcycle of the appellant while overtaking, due to which the appellant sustained serious injuries? (ii) Whether, at the time of the said accident, the vehicle (Tavera No. UA-04D-0345) was insured with opposite party No. 2, National Insurance Company Ltd., and the vehicle was being driven as per the terms and conditions of the insurance policy? (iii) Whether, at the time of the accident, the appellant and the driver of the vehicle (Tavera No. UA-04D-0345) were holding a valid and effective driving licence? (iv) Whether the claim petition is bad for non-joinder of the alleged owner of the motorcycle and its insurance company? (v) Whether the appellant is entitled to receive any compensation? If yes, how much and from whom? 9. As far as Issue No. 1 is concerned, the learned Tribunal held that the appellant was unable to prove that, on 22.04.2008, at about 09:20 a.m., when he was going by his motorcycle to attend to his duties at Zoological Garden, the vehicle (Tavera No. UA-04D-0345), being driven rashly and negligently by its driver from Nainital to Bhowali, dashed his motorcycle near Jokhiya while overtaking, due to which, he sustained serious injuries. Hence, Issue No. 1 was decided against the appellant. 10. Hence, Issue No. 1 was decided against the appellant. 10. As far as Issue No. 2 is concerned, it was held that, on the date of the alleged accident, the offending vehicle (Tavera No. UA-04D-0345) was validly insured with the opposite party No. 2/National Insurance Company Ltd. Hence, the said Issue was decided in favour of the appellant and against opposite party No. 2. 11. As far as Issue No. 3 is concerned, it was held that, at the time of the alleged accident, the appellant and the driver of the offending vehicle (Tavera No. UA-04D-0345) were holding a valid driving licence. Hence, the said Issue was decided in favour of the appellant and the opposite party No. 3. 12. While deciding Issue No. 4, the Tribunal came to the conclusion that, as per order dated 13.10.2010 passed in the Amendment Application filed by the appellant, the owner of the motorcycle bearing No. UA-04E-2955 and its insurance company have already been impleaded as opposite party Nos. 4 and 5 respectively in the claim petition. It was, accordingly, held that this issue has become infructuous. 13. However, as far as Issue No. 5 is concerned, the Tribunal came to the conclusion that, as Issue No. 1 with regard to the occurrence of the accident itself has been decided against the appellant, the appellant is not entitled to receive any compensation. 14. The claim petition filed by the appellant was, accordingly, dismissed. Hence, the present appeal. 15. Heard the learned counsel for the parties and perused the record. 16. The learned counsel appearing for the appellant would submit that the Tribunal has examined the evidence as if it was judging a criminal case. Though it has not been reflected anywhere in the impugned judgment that the Tribunal was seeking proof of the averments made in the claim petition beyond reasonable doubt, in fact, the discussions contained in the impugned judgment reveal that the Tribunal was seeking kind of a perfect proof of the matter. Though it has not been reflected anywhere in the impugned judgment that the Tribunal was seeking proof of the averments made in the claim petition beyond reasonable doubt, in fact, the discussions contained in the impugned judgment reveal that the Tribunal was seeking kind of a perfect proof of the matter. Learned counsel relied upon a judgment rendered by the Hon’ble Supreme Court in the case of Kusum Lata and Others vs. Satbir and Others, (2011) 3 SCC 646 , wherein the Hon’ble Supreme Court considered the finding recorded by the Tribunal and the High Court that the Vehicle bearing No. HR-34-8010 was not involved in the accident because of the fact that, in the FIR which was lodged by one Ashok Kumar, brother of the victim, neither the number of the vehicle nor the name of the driver was mentioned. While deciding this matter, the Hon’ble Supreme Court held that it is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. It is appropriate to take note of the exact words used by the Hon’ble Supreme Court, as contained in paragraphs 9 and 10: “9. There is no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of Dheeraj Kumar. In fact, no cogent reason has been assigned either by the Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar. The so-called reason that as the name of Dheeraj Kumar was not mentioned in the FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact-situation in this case. It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. 10. Reference in this connection may be made to the decision of this Court in Bimla Devi and Others vs. Himachal Road Transport Corporation and Others, (2009) 13 SCC 530 , in which the relevant observation on this point has been made and which is very pertinent and is quoted below: “In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.” (Emphasis supplied) 17. In the present case also, the learned Tribunal has very elaborately, and with a surgeon’s precision, examined the evidence. In such cases, the strict rule of evidence, as enunciated in the Indian Evidence Act, does not apply and the courts should proceed on broad probabilities. 18. In that view of the matter, the order passed by the learned Tribunal, as far as Issue No. 1 is concerned, is not sustainable and the Tribunal should re-consider the same. 19. Accordingly, the appeal is allowed; the findings recorded by the learned Tribunal on Issue Nos. 1 and 5 are hereby set-aside. However, the findings recorded by the learned Tribunal on Issue Nos. 2, 3 and 4 are left undisturbed. The matter is remanded back to the learned Tribunal for re-consideration and for appropriate orders on Issue Nos. 1 and 5. 20. The parties are directed to appear before the learned Motor Accident Claim Tribunal/Addl. District Judge, Nainital, on 9th May, 2022. The Registry is directed to forthwith return the trial court records, to the Tribunal along with a certified copy of this judgment.