Sunday, 12 May 2019

Whether claimant in motor accident claim petition can examine any witness who is not cited as witness in criminal case?

 Clearly, the evidence given by Bhagchand withstood
the respondents’ scrutiny and the respondents were unable
to shake his evidence. In turn, the High Court has failed to
take note of the absence of cross examination of this
witness by the respondents, leave alone the Tribunal’s
finding on the same, and instead, deliberated on the
reliability of Bhagchand’s (A.D.2) evidence from the
viewpoint of him not being named in the list of eye
witnesses in the criminal proceedings, without even
mentioning as to why such absence from the list is fatal to
the case of the appellants. This approach of the High Court
is mystifying, especially in light of this Court’s observation
[as set out in Parmeshwari (supra) and reiterated in
Mangla Ram (supra)] that the strict principles of proof in a
criminal case will not be applicable in a claim for
compensation under the Act and further, that the standard
to be followed in such claims is one of preponderance of

probability rather than one of proof beyond reasonable
doubt. There is nothing in the Act to preclude citing of a
witness in motor accident claim who has not been named in
the list of witnesses in the criminal case. What is essential
is that the opposite party should get a fair opportunity to
cross examine the concerned witness. Once that is done, it
will not be open to them to complain about any prejudice
caused to them. If there was any doubt to be cast on the
veracity of the witness, the same should have come out in
cross examination, for which opportunity was granted to the
respondents by the Tribunal.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1665 OF 2019

Sunita Vs  Rajasthan State Road Transport Corporation 
A.M. Khanwilkar, J.
Dated:February 14, 2019.

1. Leave granted.
2. The captioned appeal assails the decision of the High
Court of Judicature for Rajasthan, Jaipur Bench, dated 25th
July, 2018 in S.B. Civil Miscellaneous Appeal No. 521 of
2017, whereby the appeal filed by respondent No.1 (The
Rajasthan State Road Transport Corporation) owner of the
offending vehicle, was allowed. The High Court was pleased
to set aside the Award passed by the Motor Accident Claims
2
Tribunal, Sawai Madhopur (for short “the Tribunal”) in
favour of the appellants/claimants for the death of their
family member, Sitaram and consequently dismissed the
SBCMA No.581/2017 filed by the appellants for
enhancement of the compensation amount granted by the
Tribunal.
3. Briefly stated, on 28th October, 2011 at around 7 A.M.,
Sitaram (husband of appellant No.1 and father of appellant
Nos.2 and 3, minor children) was riding a motorcycle,
bearing registration number RJ25
SA 6923, along with a
pillion rider, one Rajulal Khateek, when the motorcycle
collided with a bus coming from the opposite direction
bearing registration number RJ26/
P.A. 0042, owned by
respondent No.1 and rashly and negligently driven by
respondent No.2. The accident resulted in the death of
Sitaram and severe injuries to the pillion rider, Rajulal
Khateek. Thereafter, the appellants and the parents of the
deceased Sitaram filed two separate petitions before the
Tribunal seeking compensation for the death of Sitaram,
who was a senior teacher in a Government school, from the
3
respondents, to the tune of Rs.2,62,02,408/and
Rs.1,13,42,984/,
respectively.
4. The respondents resisted the said claim petitions. They
denied that the offending bus had caused the accident. They
contended that the accident was caused due to the mistake
and negligence on the part of the deceased Sitaram himself
as he was riding on the wrong side of the road and he did
not know how to ride the motorcycle. He did not have a
valid driving licence and was not wearing a helmet at the
time of the accident, which was in violation of traffic rules.
The respondents also doubted the validity of the evidence
and witnesses on record.
5. The Tribunal in its judgment dated 14th December,
2016, extensively analysed the evidence on record. It
considered the evidence of the deceased’s wife Sunita
(appellant No.1 herein), who deposed about the accident
which resulted in Sitaram’s death. The father of Sitaram,
Mool Chand Kirad (A.D.3), also deposed about the accident
of the offending bus with the motorcycle causing the death
4
of Sitaram at the spot of the accident. The Tribunal also
considered FIR No.247/2011 (Exh.1) and chargesheet
(Exh.2) filed against respondent No.2 for offences
punishable under Sections 279, 337 and 304A of the Indian
Penal Code (‘IPC’) and Sections 134/187 of the Motor
Vehicles Act (for short “the Act”). It noted that the
respondents had not challenged the FIR or the chargesheet
before any authority.
6. The Tribunal also examined the deposition of
Bhagchand Khateek (A.D.2), a witness to the incident who
deposed that he had gone to his brother’s house at Shivad
village, one day prior to the date of the accident. At the time
of the accident, he had gone to relieve himself and was
walking on the left side of the road when he saw the
motorcycle with number RJ 25 SA 6923, which was also on
the left side of the road, being hit by the offending bus
bearing registration No. RJ26/
P.A. 0042, being driven at a
high speed coming on to the wrong side of the road,
resulting in the instant death of the rider of the motorcycle.
He further deposed that the name of the driver of the
5
offending bus was Banwari (respondent No.2). In his crossexamination,
Bhagchand revealed that he did not see
Banwari (respondent No.2) after the accident and further,
that there was a pillion rider on the motorcycle who was a
man, but he couldn’t identify the man’s age.
7. The respondents challenged the evidence of
Bhagchand (A.D.2) on the ground that his name was not
mentioned in the list of witnesses set out in the chargesheet
(Exh.2) and could not have been near the spot when
the accident occurred. For, he was a resident of Pakhala
village, which was 3 (three) Kilometres away from the
alleged accident spot. Despite these objections, the Tribunal
accepted the veracity of Bhagchand’s deposition. It held that
not all the eyewitnesses
to the incident needed to be named
in the chargesheet
and that the respondents had failed to
ask Bhagchand any question during the cross examination
so as to cast any doubt on the veracity of his statement.
Further, the respondents had also failed to ask Bhagchand
about giving any statement to the police. Bhagchand had
deposed that on the day of incident, he was at his brother’s
6
house in Shivad village, which did not preclude him from
being an eyewitness
to the incident.
8. The Tribunal then noted that respondent No.2 driver of
the offending bus, Banwari Lal, had not been examined as a
witness by the respondents. Additionally, it found that the
site map of the accident (Exh.3) showed that the accident
had occurred at a turning in the road, and yet the offending
vehicle was driven at a high speed. This aspect was read
with the unchallenged evidence of the witness Bhagchand
Khateek (A.D.2), who inter alia deposed that at the time of
the accident, the offending bus was being driven recklessly
at a high speed and also that the respondents had failed to
ask the said witness Bhagchand any question about the
purported negligence of the rider of the motorcycle, Sitaram.
Further, the respondents had failed to show that they had
challenged the filing of the chargesheet
(Exh.2) against
respondent No.2 driver of the offending vehicle. Finally, the
Tribunal adverted to the postmortem
report (Exh.4)
wherein it was recorded that the deceased had died due to
7
shock arising from various fractures on his body. The
Tribunal also took into account the notice under Section
134 of the Act (Exh.7), wherein respondent No.2 had not
made any statement that the accident had occurred due to
the negligence of the motorcycle rider. On a combined
reading of the aforesaid evidence, the Tribunal held that
there was no negligence on the part of the deceased
Sitaram, while riding the motorcycle and that he was fatally
hit by the bus being driven recklessly and at a high speed
by respondent No.2.
9. The Tribunal also examined the notice under Section
133 of the Act (Exh.6) in which the Assistant Transport
Inspector, Tonk Bus Depot, stated that respondent No.2
was the driver of the offending bus bearing registration
number RJ26/
P.A. 0042. It then examined the notice
under Section 134 of the Act (Exh.7), wherein respondent
No.2 stated that the offending bus bearing registration
number RJ26/
P.A. 0042 was being operated by him on the
date and place of the accident. The Tribunal thus concluded
that respondent No.2 was under the employment of
8
respondent No.1 at the time of the accident and was driving
the offending bus which caused the accident.
10. On the basis of the aforesaid findings and
observations, the Tribunal partly allowed the two claim
petitions. After deducting income tax payable on the
income received by Sitaram, the Tribunal awarded
compensation of Rs.48,33,235 (Rupees Forty Eight Lakh
Thirty Three Thousand Two Hundred and Thirty Five only)
jointly and severally to the appellants and the parents of
Sitaram, along with interest. The Tribunal observed that
there was evidence on record to show that Sunita (appellant
No.1) wife of the deceased was having estranged relations
with her husband and thus ordered that the compensation
be divided in such a way that the appellants herein would
receive Rs.38,33,235 (Rupees Thirty Eight Lakh Thirty
Three Thousand Two Hundred and Thirty Five only) and the
remaining amount of Rs.10,00,000 (Rupees Ten Lakh only)
would be given to the parents of the deceased.
9
11. The appellants, aggrieved by the deduction of income
tax from the calculated income of the deceased, filed S.B.
Civil Miscellaneous Appeal No.581 of 2017 while the
respondents filed two appeals viz. S.B. Civil Miscellaneous
Appeal No.521 of 2017 and S.B. Civil Miscellaneous Appeal
No.522 of 2017, before the High Court of Rajasthan, Jaipur
Bench. Vide a common judgment dated 25th July, 2018, the
High Court set aside the Tribunal’s judgment in entirety, on
the grounds that nonexamination
of the pillion rider,
Rajulal Khateek, was fatal to the case of the appellants,
that the witness Bhagchand (A.D. 2) was unreliable and his
evidence could not be reckoned and that the site map of the
accident (Exh.3) showed that the deceased Sitaram was
riding his motorcycle on the wrong side of the road at the
time when the accident occurred, thus, proving that it was
Sitaram, and not respondent No.2 (bus driver), who was
guilty of negligence. The High Court thus allowed the two
appeals filed by the respondents and set aside the
Tribunal’s judgment, and consequently dismissed the
appeal filed by the appellants.
10
12. We have heard Mr. Anuj Bhandari, learned counsel
appearing for the appellants and Mr. S.K. Bhattacharya,
learned counsel appearing for the respondents. Mr.
Bhandari submits that the Motor Accident Claims are
summary proceedings so as to adjudicate the adequate
amount of compensation in case of an accident and that a
claim under the Act has to be decided on the touchstone of
preponderance of probability rather than on the standard of
proof beyond reasonable doubt which applies in criminal
matters. He submits that evidence of Bhagchand (A.D.2)
was justly accepted by the Tribunal and the High Court
discarded the same on specious ground that he was not
cited as a witness in the criminal case registered by the
local police in respect of the subject accident and was
unable to tell the age of the pillion rider. Further, the nonexamination
of a witness cited in the charge sheet would not
be fatal to the appellant’s claim and the entire claim could
not be rejected merely on such ground. Besides, the
statement of the pillion rider Rajulal Khateek, as recorded
by the police under Section 161 of the Criminal Procedure
Code (‘CrPC’), clearly stated that the offending bus was
11
being driven in a rash and negligent manner and on the
wrong side of the road and although this witness has not
been examined in these proceedings, his statement
nevertheless remained on the record as part of the final
report filed under Section 173 CrPC and hence, that could
not be discarded merely for lack of examination of the said
witness.
13. Mr. Bhandari also submits that on the issue of
negligence by the rider of the motorcycle and the said
motorcycle being driven on the wrong side of the road, the
High Court came to a diametrically opposite finding from
the Tribunal, merely by reference to the site plan, on the
basis of conjuncture and surmises and in complete
disregard of the other evidence and, in particular, the
factual position as set out in the site plan (Exh.3). He
submits that the Tribunal had justly opined that the site
plan indicated that the offending bus was being driven at a
high speed and after hitting the motorcycle, it went further
ahead and rammed into an electricity pole off the road, well
12
past the accident spot. The Tribunal’s judgment was a wellreasoned
decision and a plausible view of the matter. Thus,
the High Court committed grave illegality in setting aside
the said decision. He relied upon Kusum Lata and Ors. Vs.
Satbir and Ors.1, Bimla Devi and Ors. Vs. Himachal
Road Transport Corporation and Ors.2, United India
Insurance Company Limited Vs. Shila Datta and Ors.,3
and Dulcina Fernandes and Ors. Vs. Joaquim Xavier
Cruz and Anr. 4, in support of his arguments.
14. Per contra, Mr. S.K. Bhattacharya, learned counsel for
the respondents, argues that the Tribunal’s decision was
wholly untenable. Not only did the appellants failed to
examine any independent witness to the case but also, the
testimony of Bhagchand (A.D. 2) was not credible as neither
was his name set out in the list of witnesses nor could he
identify the age of the pillion rider on the motorcycle.
However, the same witness could clearly identify both, the
1 (2011) 3 SCC 646
2 (2009) 13 SCC 530
3 (2011) 10 SCC 509
4 (2013) 10 SCC 646
13
number of the motorcycle and the number of the offending
bus, thus indicative of the fact that the witness was tutored
and not a natural witness. Mr. Bhattacharya submits that
the Tribunal’s opinion, that not all witnesses named in the
chargesheet
were required to be presented by the
investigating agency rather, only the spot witnesses were
required, was contradictory, since the pillion rider on the
motorcycle, Rajulal Khateek, was mentioned as a witness in
the chargesheet
but the said person was not presented for
examination.
15. Mr. Bhattacharya further argues that the two
principles applicable to the assessment of evidence in
matters of reckless driving and negligence are res ipsa
loquitor and preponderance of probability. That principle
casts a burden on the appellants/claimants to show that
the deceased Sitaram was not negligent in riding his
motorcycle. The facts, however, indicate that the accident
occurred in the middle of the road and although the
offending bus was being driven in the middle of the road,
14
the fault lay with the lighter vehicle namely, the motorcycle.
Merely because the bus was being driven fast, it does not
follow that the same was also being driven negligently. The
evidence on record lacked basic requirements to prove the
guilt of respondent No.2 driver, let alone on the
preponderance of probability and there was no evidence to
indicate the callousness or negligence of the bus driver.
There was no assessment of contributory negligence on the
part of the deceased Sitaram and the appellants failed to
prove any negligence on behalf of the respondents.
16. Finally, Mr. Bhattacharya submits that the
compensation awarded by the Tribunal to the parents of the
deceased Sitaram was incorrect since there was no evidence
on record to show that the parents were dependent on the
deceased or that they were staying with him. Sitaram was
admittedly not a bachelor and was not staying with his
parents. While the parents did have the right to filial
consortium, however, compensation under such head was
to be awarded separately and not on a structured basis.
15
17. We have cogitated over the above submissions and
have examined the relevant record. The pivotal question is
about the correctness of the approach of the High Court in
setting aside the findings of fact recorded by the Tribunal.
Further, whether the circumstances emanating from the
evidence produced by the parties justify the conclusion
reached by the High Court on the factum of negligence on
the part of the motorcycle rider, the deceased Sitaram, in
causing the accident with the offending bus driven by
respondent No.2.
18. Indeed, we are conscious of the scope of an appeal
under Article 136 of the Constitution of India. This Court
ordinarily does not reexamine
or reappreciate
the
evidence. But it is certainly open to this Court to interfere if
the findings recorded in the judgment under appeal are
found to be manifestly wrong or perverse.
19. We may immediately turn to the manner in which the
wellconsidered
and exhaustive judgment of the Tribunal
running into over 24 pages came to be reversed by the High
16
Court, if we may say so, in a cryptic manner in 5 pages. The
relevant portion of the High Court judgment under appeal,
after recording facts and submissions of the counsel, reads
thus:
“In order to prove Issue No.1, claimants examined AW2
Bhagchand. The said witness deposed that on
28.10.2011, while he was returning after answering the
call of nature, he saw that a motorcycle was coming from
village Manhapura side. The Roadsways but came from
opposite direction and struck against the motorcycle. As a
result, one person, who was sitting on the motorcycle died.
In his crossexamination,
he deposed that one more person
was also sitting on the motorcycle. However, he could not
tell if the said person was young, old or a child.
FIR Exhibit1
was lodged by Kailash Chand with
regard to the accident in question. A perusal of the same
reveals that the motorcycle was being driven by Sita Ram
and Raju Lal Khateek was sitting on the pillion seat. Best
eyewitness
in the present case can be said to be Raju Lal
Khateek, who was travelling with the deceased at the time
of accident. However, Raju Lal Khateek has not been
examined by the claimants before the Tribunal. The name
of Bhagchand is not shown in the list of witnesses as an
eyewitness
in the criminal case. In the criminal case, Raju
Lal Khateek has been shown as an eyewitness.
A perusal
of the site plan Exhibit3
reveals that the bus was going on
its correct side of the road, whereas, the motorcycle was
coming on the wrong side of the road, had struck against
the bus.
In the facts and circumstances of the present case,
no reliance can be placed on the statement of AW2
Bhagchand, who had been examined by the claimants as
an eyewitness
to the accident. The said witness could not
even tell in his crossexamination
with regard to the age of
the person, who was sitting on the pillion seat. Thus, the
learned Tribunal fell in error in deciding Issue No.1 in
favour of the claimants. Accordingly, finding of the
17
Tribunal on Issue No.1 is reversed and the said issue is
decided against the claimants.”
This is the only analysis/discussion in the entire judgment
to reverse the exhaustive analysis done by the Tribunal to
which we have set out in brief in paragraphs 5 to 9 above.
The thrust of the reasoning given by the High Court rests on
the unreliability of the witnesses presented by the
appellants: first, that the evidence given by Bhagchand
(A.D.2) was unreliable because he was not shown as a
witness in the list of witnesses mentioned in the charge
sheet filed by the police and that the said witness could not
identify the age of the pillion rider, Rajulal Khateek. Second,
the said pillion rider himself, Rajulal Khateek, who was the
“best” witness in the matter, was not presented for
examination by the appellants. The High Court also relies
on the site map (Exh.3) to record the finding on the factum
of negligence of the deceased Sitaram in causing the
accident which resulted in his death.
20. We have no hesitation in observing that such a hypertechnical
and trivial approach of the High Court cannot be
18
sustained in a case for compensation under the Act, in
connection with a motor vehicle accident resulting in the
death of a family member. Recently, in Mangla Ram Vs.
Oriental Insurance Company Limited and Ors.5, (to
which one of us, Khanwilkar, J. was a party), this Court has
restated the position as to the approach to be adopted in
accident claim cases. In that case, the Court was dealing
with a case of an accident between a motorcycle and a jeep,
where the Tribunal had relied upon the FIR and chargesheet,
as well as the accompanying statements of the
complainant and witnesses, to opine that the police records
confirmed the occurrence of an accident and also the
identity of the offending jeep but the High Court had
overturned that finding inter alia on the ground that the oral
evidence supporting such a finding had been discarded by
the Tribunal itself and that reliance solely on the document
forming part of the police record was insufficient to arrive at
such a finding. Disapproving that approach, this Court,
after adverting to multitude of cases under the Act, noted as
follows:
5 (2018) 5 SCC 656
19
“22. The question is: Whether this approach of the High
Court can be sustained in law? While dealing with a
similar situation, this Court in Bimla Devi6 noted the
defence of the driver and conductor of the bus which inter
alia was to cast a doubt on the police record indicating
that the person standing at the rear side of the bus,
suffered head injury when the bus was being reversed
without blowing any horn. This Court observed that while
dealing with the claim petition in terms of Section 166 of
the Motor Vehicles Act, 1988, the Tribunal stricto sensu
is not bound by the pleadings of the parties, its function
is to determine the amount of fair compensation. In paras
1115,
the Court observed thus: (SCC pp. 53334)
“11. While dealing with a claim petition in terms of
Section 166 of the Motor Vehicles Act, 1988, a tribunal
stricto sensu is not bound by the pleadings of the
parties; its function being to determine the amount of
fair compensation in the event an accident has taken
place by reason of negligence of that driver of a motor
vehicle. It is true that occurrence of an accident having
regard to the provisions contained in Section 166 of
the Act is a sine qua non for entertaining a claim
petition but that would not mean that despite evidence
to the effect that death of the claimant’s predecessor
had taken place by reason of an accident caused by a
motor vehicle, the same would be ignored only on the
basis of a postmortem
report visàvis
the averments
made in a claim petition.
12. The deceased was a constable. Death took place
near a police station. The postmortem
report clearly
suggests that the deceased died of a brain injury. The
place of accident is not far from the police station. It
is, therefore, difficult to believe the story of the driver
of the bus that he slept in the bus and in the
morning found a dead body wrapped in a blanket. If
the death of the constable had taken place earlier, it
is wholly unlikely that his dead body in a small town
like Dharampur would remain undetected
throughout the night particularly when it was lying
at a busstand
and near a police station. In such an
event, the Court can presume that the police officers
themselves should have taken possession of the dead
body.
13. The learned Tribunal, in our opinion, has rightly
proceeded on the basis that apparently there was
6 Supra at footnote 2
20
absolutely no reason to falsely implicate Respondents
2 and 3. The claimant was not at the place of
occurrence. She, therefore, might not be aware of the
details as to how the accident took place but the fact
that the first information report had been lodged in
relation to an accident could not have been ignored.
14. Some discrepancies in the evidence of the
claimant’s witnesses might have occurred but the
core question before the Tribunal and consequently
before the High Court was as to whether the bus in
question was involved in the accident or not. For the
purpose of determining the said issue, the Court was
required to apply the principle underlying the burden
of proof in terms of the provisions of Section 106 of
the Evidence Act, 1872 as to whether a dead body
wrapped in a blanket had been found at the spot at
such an early hour, which was required to be proved
by Respondents 2 and 3.
15. 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. For the said
purpose, the High Court should have taken into
consideration the respective stories set forth by both
the parties.” (emphasis supplied)
The Court restated the legal position that the claimants
were merely to establish their case on the touchstone of
preponderance of probability and standard of proof
beyond reasonable doubt cannot be applied by the
Tribunal while dealing with the motor accident cases.
Even in that case, the view taken by the High Court to
reverse similar findings, recorded by the Tribunal was set
aside.
23. Following the enunciation in Bimla Devi case, this
Court in Parmeshwari v. Amir Chand7 noted that when
filing of the complaint was not disputed, the decision of
the Tribunal ought not to have been reversed by the High
Court on the ground that nobody came from the office of
the SSP to prove the complaint. The Court appreciated
7 (2011) 11 SCC 635
21
the testimony of the eyewitnesses in paras 12 & 13 and
observed thus: (Parmeshwari case, SCC p. 638)
“12. The other ground on which the High Court
dismissed the case was by way of disbelieving the
testimony of Umed Singh, PW 1. Such disbelief of the
High Court is totally conjectural. Umed Singh is not
related to the appellant but as a good citizen, Umed
Singh extended his help to the appellant by helping
her to reach the doctor’s chamber in order to ensure
that an injured woman gets medical treatment. The
evidence of Umed Singh cannot be disbelieved just
because he did not file a complaint himself. We are
constrained to repeat our observation that the total
approach of the High Court, unfortunately, was not
sensitised enough to appreciate the plight of the
victim.
13. The other socalled
reason in the High Court’s
order was that as the claim petition was filed after
four months of the accident, the same is “a device to
grab money from the insurance company”. This
finding in the absence of any material is certainly
perverse. The High Court appears to be not cognizant
of the principle that in a road accident claim, the
strict principles of proof in a criminal case are not
attracted. …”
24. It will be useful to advert to the dictum in N.K.V.
Bros. (P) Ltd. v. M. Karumai Ammal8, wherein it was
contended by the vehicle owner that the criminal case in
relation to the accident had ended in acquittal and for
which reason the claim under the Motor Vehicles Act
ought to be rejected. This Court negatived the said
argument by observing that the nature of proof required
to establish culpable rashness, punishable under IPC, is
more stringent than negligence sufficient under the law of
tort to create liability. The observation made in para 3 of
the judgment would throw some light as to what should
be the approach of the Tribunal in motor accident cases.
The same reads thus: (SCC pp. 45859)
“3. Road accidents are one of the top killers in our
country, specially when truck and bus drivers
operate nocturnally. This proverbial recklessness
often persuades the courts, as has been observed by
us earlier in other cases, to draw an initial
presumption in several cases based on the doctrine
of res ipsa loquitur. Accidents Tribunals must take
8 (1980) 3 SCC 457
22
special care to see that innocent victims do not suffer
and drivers and owners do not escape liability merely
because of some doubt here or some obscurity there.
Save in plain cases, culpability must be inferred from
the circumstances where it is fairly reasonable. The
court should not succumb to niceties, technicalities
and mystic maybes. We are emphasising this aspect
because we are often distressed by transport
operators getting away with it thanks to judicial
laxity, despite the fact that they do not exercise
sufficient disciplinary control over the drivers in the
matter of careful driving. The heavy economic impact
of culpable driving of public transport must bring
owner and driver to their responsibility to their
neighbour. Indeed, the State must seriously consider
nofault
liability by legislation. A second aspect
which pains us is the inadequacy of the
compensation or undue parsimony practised by
tribunals. We must remember that judicial tribunals
are State organs and Article 41 of the Constitution
lays the jurisprudential foundation for State relief
against accidental disablement of citizens. There is
no justification for niggardliness in compensation. A
third factor which is harrowing is the enormous
delay in disposal of accident cases resulting in
compensation, even if awarded, being postponed by
several years. The States must appoint sufficient
number of tribunals and the High Courts should
insist upon quick disposals so that the trauma and
tragedy already sustained may not be magnified by
the injustice of delayed justice. Many States are
unjustly indifferent in this regard.”
25. In Dulcina Fernandes9, this Court examined similar
situation where the evidence of claimant’s eyewitness was
discarded by the Tribunal and that the respondent in that
case was acquitted in the criminal case concerning the
accident. This Court, however, opined that it cannot be
overlooked that upon investigation of the case registered
against the respondent, prima facie, materials showing
negligence were found to put him on trial. The Court
restated the settled principle that the evidence of the
claimants ought to be examined by the Tribunal on the
touchstone of preponderance of probability and certainly
the standard of proof beyond reasonable doubt could not
have been applied as noted in Bimla Devi. In paras 8 & 9
9 Supra at footnote 4
23
of the reported decision, the dictum in United India
Insurance Co. Ltd. v. Shila Datta10, has been adverted to
as under: (Dulcina Fernandes case, SCC p. 650)
“8. In United India Insurance Co. Ltd. v. Shila Datta
while considering the nature of a claim petition
under the Motor Vehicles Act, 1988 a threeJudge
Bench of this Court has culled out certain
propositions of which Propositions (ii), (v) and (vi)
would be relevant to the facts of the present case
and, therefore, may be extracted hereinbelow: (SCC
p. 518, para 10)
‘10. (ii) The rules of the pleadings do not strictly
apply as the claimant is required to make an
application in a form prescribed under the Act. In
fact, there is no pleading where the proceedings are
suo motu initiated by the Tribunal.
* * *
(v) Though the Tribunal adjudicates on a claim and
determines the compensation, it does not do so as in
an adversarial litigation. …
(vi) The Tribunal is required to follow such summary
procedure as it thinks fit. It may choose one or more
persons possessing special knowledge of and matters
relevant to inquiry, to assist it in holding the
enquiry.’
9. The following further observation available in para
10 of the Report would require specific note: (Shila
Datta case, SCC p. 519)
‘10. … We have referred to the aforesaid provisions to
show that an award by the Tribunal cannot be seen
as an adversarial adjudication between the litigating
parties to a dispute, but a statutory determination of
compensation on the occurrence of an accident, after
due enquiry, in accordance with the statute.’”
In para 10 of Dulcina Fernandes, the Court opined that
nonexamination
of witness per se cannot be treated as
fatal to the claim set up before the Tribunal. In other
words, the approach of the Tribunal should be holistic
analysis of the entire pleadings and evidence by applying
the principles of preponderance of probability.”
10 (2011) 10 SCC 509
24
It is thus well settled that in motor accident claim cases,
once the foundational fact, namely, the actual occurrence
of the accident, has been established, then the Tribunal’s
role would be to calculate the quantum of just
compensation if the accident had taken place by reason of
negligence of the driver of a motor vehicle and, while doing
so, the Tribunal would not be strictly bound by the
pleadings of the parties. Notably, while deciding cases
arising out of motor vehicle accidents, the standard of proof
to be borne in mind must be of preponderance of probability
and not the strict standard of proof beyond all reasonable
doubt which is followed in criminal cases.
21. In the present case, we find that the Tribunal had
followed a just approach in the matter of appreciation of the
evidence/materials on record. Whereas, the High Court
adopted a strict interpretation of the evidence on the
touchstone of proof beyond reasonable doubt to record an
adverse finding against the appellants and to reverse the
well considered judgment of the Tribunal in a cryptic
manner.
25
22. Reverting to the factual matrix, the actual occurrence
of the accident between the motorcycle driven by Sitaram
bearing registration number RJ 25 SA 6923 coming from
one side and a bus belonging to respondent No.1 (the
Rajasthan State Road Transport Corporation) bearing
registration number RJ26/
P.A. 0042 coming from the
opposite direction, is duly proved. The Tribunal has relied
upon the uncontroverted evidence of witnesses A.D.1 and
A.D. 3, and the documents presented by them, especially
FIR No. 247/2011 (Exh. 1) and chargesheet
(Exh.2) against
one Banwari Lal Bairwa (respondent No.2), charging him
with offences under Sections 279, 337 and 304A of the IPC
and Sections 134/187 of the Act, to establish that on
28.10.2011 at around 7 A.M., Sitaram, along with pillion
rider Rajulal Khateek, was riding on a motorcycle bearing
number RJ 25 SA 6923 from village Bapuee to Chaut ka
Barwad for Daug, to his sister, when, near Mahapura trisection,
bus number RJ26/
P.A. 0042 belonging to
respondent No.1 (the Rajasthan State Road Transport
26
Corporation) coming from the opposite direction hit the
motorcycle from the front, resulting in the death of Sitaram.
23. The Tribunal had justly accepted the appellants’
contention that the respondents did not challenge the
propriety of the said FIR No. 247/2011 (Exh. 1) and chargesheet
(Exh. 2) before any authority. The only defence raised
by the respondents to this plea was that the said FIR No.
247/2011 was based on wrong facts and was filed in
connivance between the appellants/complainants and the
police, against which the respondents complained to the incharge
of the police station and the District Superintendent
of Police but to no avail. Apart from this bald assertion, no
evidence was produced by the respondents before the
Tribunal to prove this point. The filing of the FIR was
followed by the filing of the chargesheet
against respondent
No.2 for offences under u/Sections 279, 337 and 304A of
the IPC and Sections 134/187 of the Act, which, again,
reinforces the allegations in the said FIR insofar as the
occurrence of the accident was concerned and the role of
respondent No.2 in causing such accident. Be that as it
27
may, the High Court has not even made a mention, let alone
record a finding, of any impropriety against FIR 247/2011
(Exh. 1) or chargesheet
(Exh. 2) or the conclusion reached
by the Tribunal in that regard. Yet, the FIR and the Chargesheet
has been found to be deficient by the High Court.
24. Before the Tribunal, respondent No.1 has neither
denied that respondent No.2 was in its employment at the
time of the accident nor has it denied that respondent No.2
was driving the offending bus no. RJ26/
P.A. 0042 at the
time of the accident. The Tribunal has also referred to the
Postmortem
report (Exh.4) which establishes that Sitaram
died due to shock arising from various fractures on his
body, which, undoubtedly, were rendered due to his
accident with the offending bus. All of the aforesaid evidence
remained uncontroverted. While the Tribunal has accepted
these depositions and the evidence presented in that regard,
the High Court has, surprisingly, not even referred to it or
even the numerous documents presented by the said
witnesses as evidence, apart from a passing reference to FIR
247/2011 (Exh.1).
28
25. The Tribunal’s reliance upon FIR 247/2011 (Exh. 1)
and chargesheet
(Exh. 2) also cannot be faulted as these
documents indicate the complicity of respondent No.2. The
FIR and chargesheet,
coupled with the other evidence on
record, inarguably establishes the occurrence of the fatal
accident and also point towards the negligence of the
respondent No.2 in causing the said accident. Even if the
final outcome of the criminal proceedings against
respondent No.2 is unknown, the same would make no
difference atleast for the purposes of deciding the claim
petition under the Act. This Court in Mangla Ram (supra),
noted that the nature of proof required to establish
culpability under criminal law is far higher than the
standard required under the law of torts to create liability.
26. Accordingly, we have no hesitation in upholding the
finding recorded by the Tribunal that there was an accident
on 28102011
at around 7AM between the motorcycle
driven by Sitaram bearing registration number RJ 25 SA
6923 and a bus belonging to respondent No.1. (the
29
Rajasthan State Road Transport Corporation) bearing
registration number RJ26/
P.A. 0042 coming from the
opposite direction and being driven rashly and negligently
by respondent No.2, which resulted in the death of Sitaram.
27. The next question is whether the purported
shortcomings in the evidence of Bhagchand Khateek (A.D.2)
and the lack of evidence of the pillion rider on the
motorcycle, Rajulal Khateek, would be fatal to the
appellants’ case. As regards the evidence of Bhagchand, the
High Court found that the deposition of the said witness
was unreliable because his name was not mentioned in the
list of witnesses in the criminal proceedings and also
because he was unable to tell the age of the pillion rider.
Besides, the said witness lived in Pakhala village, which was
3 (three) kilometres away from the accident spot and hence,
he could not have been near the said spot when the
accident occurred. The Tribunal had dealt with these
objections quite substantially and, in our opinion, correctly,
in its judgment, wherein it records:

“ In the present case the petitioners have got examined
the eyewitness
A.D.2 Bhag Chand son of Ram Dev.
Admittedly the name of the witness Bhag Chand is not
mentioned in the list of witnesses in exhibit2
charge
sheet but if the interrogation with this witness is
perused then the opponent in order of not considering
this witness as eyewitness,
has not asked about giving
police statement or not having his name in the list of
witnesses. The witness A.D.2 Bhag Chand Khateek, in
interrogation on behalf of opponents has accepted this that
he neither knows Banwari nor after the incident he has seen
Banwari.
During interrogation the statement of the witness has been
that I was near the place of incident itself. That time I was
returning after relieving myself. The argument of the
opponents has been that the witness Bhag Chand is
resident of village Pakhala whereas the place of incident
is at distance of 3 k.m. therefore, the statement of going
to toilet is false. Therefore, he should not be considered
eyewitness.
But the witness A.D.2 Bhag Chand Khateek
has stated in his main statement that one day from
dated 28.10.2011, he had come to his brother’s house at
village Shivad. In such a Situation, in our humble
opinion, the witness being at a distance of 3 k.m. from
spot of incident, being resident of Pakhala village, this
cannot be considered that this witness would not be
considered eyewitness.
Whereas there is question of his name not being in the
chargesheet
as witness, definitely due to this fact, each
such witness cannot be considered eyewitness who gives
little statement about incident. But the evidence which the
witness A.D.2 Bhag Chand Khateek has given on oath, in
order to prove that distrust worthy, the opponents have
not done any such interrogation from which there is
suspicion in the statements of witness. The witness Bhag
Chand Khateek was not even this suggestion that his
police statement was not taken or the police had not
interrogated him. In our humble opinion, in cases like
accident occurring suddenly, the persons present near
the place of incident are eyewitness
of the incident. But
during investigation this is not necessary that the
investigation agency should name all the eyewitnesses
as witness in the charge sheet. Therefore, the statement

of witness A.D.2 Bhag Chand Khateek cannot be
considered distrust worthy that his name in the charge
sheet is not mentioned as witness.”
(emphasis supplied)
28. Clearly, the evidence given by Bhagchand withstood
the respondents’ scrutiny and the respondents were unable
to shake his evidence. In turn, the High Court has failed to
take note of the absence of cross examination of this
witness by the respondents, leave alone the Tribunal’s
finding on the same, and instead, deliberated on the
reliability of Bhagchand’s (A.D.2) evidence from the
viewpoint of him not being named in the list of eye
witnesses in the criminal proceedings, without even
mentioning as to why such absence from the list is fatal to
the case of the appellants. This approach of the High Court
is mystifying, especially in light of this Court’s observation
[as set out in Parmeshwari (supra) and reiterated in
Mangla Ram (supra)] that the strict principles of proof in a
criminal case will not be applicable in a claim for
compensation under the Act and further, that the standard
to be followed in such claims is one of preponderance of

probability rather than one of proof beyond reasonable
doubt. There is nothing in the Act to preclude citing of a
witness in motor accident claim who has not been named in
the list of witnesses in the criminal case. What is essential
is that the opposite party should get a fair opportunity to
cross examine the concerned witness. Once that is done, it
will not be open to them to complain about any prejudice
caused to them. If there was any doubt to be cast on the
veracity of the witness, the same should have come out in
cross examination, for which opportunity was granted to the
respondents by the Tribunal.
29. The importance of crossexamining
a witness has been
elucidated by this Court on several occasions, notably in
Kartar Singh Vs. State of Punjab,11 where a FiveJudge
Bench of this Court elaborated:
“278. Section 137 of the Evidence Act defines what crossexamination
means and Sections 139 and 145 speak of the
mode of crossexamination
with reference to the documents
as well as oral evidence. It is the jurisprudence of law that
crossexamination
is an acidtest
of the truthfulness of
the statement made by a witness on oath in
examinationinchief,
the objects of which are:
11 (1994) 3 SCC 569
33
(1) to destroy or weaken the evidentiary value of the
witness of his adversary;
(2) to elicit facts in favour of the crossexamining
lawyer's client from the mouth of the witness of the
adversary party;
(3) to show that the witness is unworthy of belief by
impeaching the credit of the said witness;
and the questions to be addressed in the course of crossexamination
are to test his veracity; to discover who he
is and what is his position in life; and to shake his credit
by injuring his character.
279. The identity of the witness is necessary in the normal
trial of cases to achieve the above objects and the right of
confrontation is one of the fundamental guarantees so
that he could guard himself from being victimized by any
false and invented evidence that may be tendered by the
adversary party.”
(emphasis supplied)
The High Court has not held that the respondents were
successful in challenging the witnesses’ version of events,
despite being given the opportunity to do so. The High Court
accepts that the said witness (A.D.2) was cross examined by
the respondents but nevertheless reaches a conclusion
different from that of the Tribunal, by selectively overlooking
the deficiencies in the respondent’s case, without any
proper reasoning.
30. The High Court discarded the evidence of Bhagchand
(A.D. 2) also because he could not recollect the age of the
34
pillion rider. The inability of the witness to identify the age
of the pillion rider cannot, per se, be a militating factor to
discard his entire version especially since the presence of
the witness at the time and place of the accident has
remained unshaken and including his deposition regarding
the manner of occurrence of the accident and identity of the
driver of the offending vehicle. The filing of FIR
No.247/2011 (Exh.1) and the subsequent filing of the
chargesheet
(Exh.2) corroborate the witnesses’ evidence.
The view taken by the Tribunal therefore, on the veracity of
the evidence of A.D. 2, is unexceptionable and there was no
reason for the High Court to interfere with the same.
31. Similarly, the issue of nonexamination
of the pillion
rider, Rajulal Khateek, would not be fatal to the case of the
appellants. The approach in examining the evidence in
accident claim cases is not to find fault with non
examination of some “best” eye witness in the case but to
analyse the evidence already on record to ascertain whether
that is sufficient to answer the matters in issue on the
touchstone of preponderance of probability. This court, in
35
Dulcina Fernandes (supra), faced a similar situation where
the evidence of claimant's eyewitness was discarded by the
Tribunal and the respondent was acquitted in the criminal
case concerning the accident. This Court, however, took the
view that the material on record was prima facie sufficient
to establish that the respondent was negligent. In the
present case, therefore, the Tribunal was right in accepting
the claim of the appellants even without the deposition of
the pillion rider, Rajulal Khateek, since the other evidence
on record was good enough to prima facie establish the
manner in which the accident had occurred and the identity
of the parties involved in the accident.
32. On the issue of negligence by the deceased Sitaram in
causing the accident, the Tribunal has referred to the notice
issued under Section 134 of the Act (Exh. 7) to the driver of
the offending vehicle, respondent No.2. It records that in the
said notice, respondent No.2 failed to give any statement
indicating that the accident occurred due to any mistake by
the rider of the motorcycle, Sitaram. The Tribunal has
further relied upon the evidence of Bhagchand (A.D.2) and
36
also upon the site plan of the accident (Exh. 3) to reach a
conclusion that respondent No.2 recklessly drove the
speeding bus on the wrong side of the road, into the
motorcycle being ridden by Sitaram, who was on the correct
side of the road, and caused his death. Whereas, the High
Court has disregarded the evidence of Bhagchand. Further,
the site plan (Exh. 3) cannot be read in isolation. It will have
to be examined in conjunction with the other evidence.
33. The site plan (Exh. 3) has been produced in evidence
before the Tribunal by witness A.D. 1 (appellant No.1
herein) and the record seems to indicate that the accident
occurred in the middle of the road. However, the exact
location of the accident, as marked out in the site plan, has
not been explained muchless proved through a competent
witness by the respondents to substantiate their defence.
Besides, the concerned police official who prepared the site
plan has also not been examined. While the existence of the
site plan may not be in doubt, it is difficult to accept the
theory propounded on the basis of the site plan to record a
finding against the appellants regarding negligence
37
attributable to deceased Sitaram, moreso in absence of
ocular evidence to prove and explain the contents of the site
plan.
34. Be it noted that the evidence of witness A.D.2
(Bhagchand) unequivocally states that the respondent No.2
bus driver was negligent in driving recklessly at a high
speed on the wrong side of the road, thus, resulting in the
accident which caused the death of Sitaram. It was not open
to the High Court to discard this evidence. Additionally, the
Tribunal had justly placed reliance on the contents of FIR
No.247/2011 (Exh. 1) and chargesheet
(Exh.2) which
prima facie indicate the negligence of respondent No.2 in
driving the bus. We once again remind ourselves of the
dictum in Dulcina Fernandes (supra) and thereafter in
Mangla Ram (supra), and answer the factum of negligence
of the driver of the offending vehicle against the
respondents.
35. Reverting to the question of adequacy of compensation
amount determined by the Tribunal, the appellants have not
38
assailed the order of the High Court rejecting their appeal.
Further, in their appeal before the High Court (SBCMA
No.581 of 2017), the limited grievance was about deduction
of income tax from the calculated income. That ground is
unsustainable in light of the decision in National
Insurance Company Limited Vs. Pranay Sethi and Ors.12
We cannot permit the appellants to widen the scope in the
present appeal, muchless pray for enhanced compensation.
We are instead inclined to restore the Award passed by the
Tribunal as it has determined the just compensation
amount, keeping in mind all the relevant parameters
including the apportionment thereof between the family
members of the deceased. Upholding that Award would be
doing complete justice.
36. Resultantly, this appeal must succeed. We hold that
the impugned judgment and order of the High Court
deserves to be set aside and instead, the Award passed by
the Tribunal dated 14th December, 2016 be restored.
12 (2017) 16 SCC 680
39
37. Appeal is allowed in the above terms. No order as to
costs.
................................J
(A.M. Khanwilkar)
................................J
(Ajay Rastogi)
New Delhi.
February 14, 2019.
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