vil Appeal No 2086 N of 1978
From the Judgment and Order dated 10121976 of the Rajasthan High Court in D B
Civil Misc
Appeal No 73 of 1970
CM Lodha and HM Singh for the Appellants
BR Sabharwal PR Ramasesh and H Wahi for the Re spondents
The Judgment of the Court was delivered by DUTT J
This appeal is directed against the judgment and decree of the Rajasthan High Court affirming the award made by the Motor Accident Claims Tribunal Udaipur
763 In the night between the 3rd and 4th December 1966 Hari Singh since deceased the husband of the appellant No 1 and the father of the appellant No 2 hired an Ambassador car belonging to the
Rajasthan Mahila Parishad for going to his native village at Kangeti in Madhya Pradesh from Udai pur in Rajasthan
When the car had gone 21 miles from Udai pur it collided with a truck coming from the opposite direction
It skidded and hit against a tree
As a result of the accident Hari Singh died on the spot and one Shanker Lal who was also travelling in the same car and happened to be the friend of Hari Singh received some injuries
At the time of his death Hari Singh was only 25
He left behind him his wife the appellant No 1 who was only 18 and the appellant No 2 his daughter then only a child
The appellants filed a petition before the Motor Acci dent Claims Tribunal Udaipur claiming a sum of Rs 1 lac as compensation
The Tribunal came to the finding that the accident which resulted in the death of Hari Singh was due to the rash and negligent driving of the car
The Tribunal disposed of the issue as to the claim of the appellants for compensation of Rs 1 lac as follows Claimants of Case No 3 of 1967 have claimed compensation of Rs 1 lac which appears to be excessive
In my opinion an amount of Rs 10000 would be adequate
The issue is decided accordingly
 The Tribunal has not given any reason why the claim of the appellants for compensation of Rs 1 lac could not be accepted
At this stage it may be stated that the case of the Insurance Company which was the opposite party No 3 before the Tribunal was that its liability was only up to a sum of Rs4000
Issue No 7 that was framed by the Tribunal relating to the liability of the Insurance Company is ex tracted below 7
Whether the liability of opposite party No 3 cannot exceed Rs4000 in each case
 The finding of the Tribunal on Issue No 7 is as follows The learned counsel for the claimants conced ed that the liability of the Insurance Company could not exceed 764 Rs4000 in each case
Issue is accordingly decided in favour of the Opposite Party No3
 Upon the said findings the Tribunal made an award for Rs 10000 in favour of the appellants against the opposite parties including the Rajasthan Mahila Parishad and the driver of the truck assessing the liability of the Insurance Company to the extent of Rs4000 only
Being aggrieved by the award of the Tribunal the appel lants preferred an appeal to the Rajasthan High Court chal lenging only the adequacy of the amount of compensation as awarded by the Tribunal
A cross objection was also filed by the Rajasthan Mahila Parishad the owner of the car
The High Court as stated already affirmed the award and dis missed the appeal and the cross objection
Hence this appeal by special leave
The first point that has been urged by Mr Lodha learned counsel appearing on behalf of the appellants is that the High Court was not justified in affirming the award of the Tribunal for Rs 10000 only as compensation
It appears from the evidence of the appellant No 1 that the father of the deceased had a dairy farm a poultry farm a flour mill and an agricultural farm
The deceased used to look after the business and his monthly income was about Rs 1000 and that out of the said income about Rs700 used to be spent and the total saving was only Rs300 a month
As against this evidence no evidence was led by the respond ents regarding the income of the deceased
The High Court in affirming the award of the Tribunal as to the quantum of compensation observed as follows It appears to us from the evidence so led by the claimants that Hari Singh at the time of his death was in fact a student and may be that whenever he could spare time he looked after the various business activities of his father which according to Rajendra Kumari are still running
He had devoted himself to the family business and had no prospects whatever dependent upon education
While estimating the benefits derived from the various business activities one cannot lose sight of the con tingencies of losses and fluctuations in income that occur in such types of business
We do realise that the loss of a husband to a young Rajput girl is something which no amount of money can compensate yet in the circum stances of the case we do not find 765 that the amount of compensation fixed by the Tribunal was too high or too low
We feel  that it represents the just and proper compen sation
 We are unable to understand the reasons given by the High Court in finding that the amount of compensation as awarded by the Tribunal was quite adequate
The High Court has not disbelieved the evidence of the appellant No 1 that her husband had an income of Rs 1000 a month
It is true that Hari Singh was a student at the time of his death but he was also looking after the business of his father and earning a sum of Rs 1000 a month
There is no reason to disbelieve the evidence of the appellant No 1 about the income of Hari Singh
Even at the modest computation the contribution of Hari Singh towards his family could not he less than Rs500 per month that is Rs6000 per year
Taking the normal span of life to be 60 years Hari Singh would have lived for another 35 years
It is apparent that the appellants have been deprived of more than a lac of rupees and accordingly their claim for Rs 1 lac on account of compensation was quite reasonable
Both the Tribunal and the High Court were not justified in assessing the amount of compensation pay able to the appellants at Rs 10000 only
The next question is as to the liability of the Insur ance Company the respondent No 4 herein
It has been already noticed that the appellants conceded before the Tribunal that the liability of the Insurance Company did not exceed the sum of Rs4 000
Indeed as the law stood at the material time the maximum liability of the Insurance Compa ny in such a case was only to the tune of Rs4000
In the appeal before the High Court the appellants did not chal lenge the finding of the Tribunal that the statutory liabil ity of the Insurance Company was Rs4000 Only as conceded to by the appellants
For the first time in this Court it is submitted that the respondent No 4 is liable for the entire amount of compensation
It is urged by Mr Lodha appearing for the appellants that it was incumbent upon the respondent No 4 to file before the Tribunal the policy of Insurance in order to show that apart from the statutory liability up to Rs4000 the respondent No 4 had no fur ther liability under the policy in excess of the statutory liability
In support of the contention much reliance has been placed by the learned counsel on a decision of this Court in National Insurance Co Ltd vs Jugal Kishore  Ors
 In that case it has been observed that where the Insurance Company concerned wishes to take a defence in a claim petition that its liability 766 is not in excess of the statutory liability it
should  file a copy of the Insurance policy along with its defence
This decision in our opinion is not applicable to the facts of the instant case
It has been already noticed that before the Tribunal the appellants had categorically admit ted that the liability of the Insurance Company extended to Rs4000 only
In the circumstances we do not think that it was incumbent upon the Insurance Company to file the policy
The contention made on behalf of the appellants is accordingly rejected
In the result we direct that the appellants are enti tled to a sum of Rs 1 lac Rupees one lac only on account of compensation
Out of the said sum the Insurance Company the respondent No 4 is liable to pay Rs4000 only and the respondent Nos 1 2 and 3 including the Rajasthan Mahila Parishad are jointly and severally liable to pay to the appellants the remaining amount
The respondent shall depos it the decretal amount to the extent of their respective liabilities in the Motor Accident Claims Tribunal Udaipur within two months from date in default the decretal amount or so much thereof as will remain outstanding will bear interest at twelve per cent per annum till realisation
The appeal is allowed
The judgment and decree of the High Court are modified to the extent indicated above There will be no order as to costs
GN Appeal al lowed


Summary:
The appellant gave a report to the Commissioner of Police against the second respondent alleging that he had committed the offences of cheating and criminal breach of trust
It was alleged that the second respondent who was employed by the appellant as its Divisional Manager Export Import had negotiated on behalf of the appellant with an Italian firm for supply of quality granite stones and had obtained a letter of credit and availing the credit facility had drawn a sum of Rs 1369750 and misappropri ated the amount
A case was registered and investigated but subsequently the police sent a B  Report to the Court stating that further investigation was not required as the case was of a civil nature
Aggrieved by the report the appellant ap proached the Second Additional Chief Metropolitan Magistrate for quashing the report and for permission to prove the commission of offences by the second respondent
The Magis trate passed an order for a calendar case being registered against the second respondent for offences punishable under Sections 408 and 420 IPC and for issuing summons to him
Thereupon the second respondent filed a petition under Section 482 of the Code before the High Court and sought the quashing of the order of the Magistrate
The High Court allowed the petition and set aside the order of the Magis trate on the ground that the Magistrate had not followed the procedure for taking cognizance of the case and issuing process to the accused after the police had sent a B  report in the case
According to the High Court the Magis trate should have issued notice to the appellant to find out whether he was disputing the correctness of the B  report and if so to comply with the requirements of Section 200 719 of the Code
The High Court further stated that only after examining the appellant on oath and his witnesses the Magistrate should have decided whether a case should be registered and process issued to the accused
Aggrieved by the High Court s order the appellant has preferred this appeal by special leave
On behalf of the appellant it was contended that the second respondent had no locus to question the order of the Magistrate and that the Magistrate was justified in taking cognizance of the offence and directing the issue of process to the second respondent
On behalf of the respondent it was argued that since the Magistrate had not followed the procedure laid down in Section 200 or Section 202 the second respondent was enti tled to seek quashing the order of the Magistrate and the High Court was right in setting aside the order of the Magistrate
Allowing the appeal HELD 1
On receipt of a complaint a Magistrate has several courses open to him
The Magistrate may take cogni zance of the offence at once and proceed to record state ments of the complainant and the witnesses present under Section 200
After recording those statements if in the opinion of the Magistrate there is no sufficient ground for proceeding he may dismiss the complaint under Section 203
On the other hand if in his opinion there is sufficient ground for proceeding he may issue process under Section 264
If however the Magistrate thinks fit he may postpone the issue of process and either inquire into the case him self or direct an investigation to be made by the police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding
He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceed ing
Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202 he may order an investigation to be made by the police under Section 1563
When such an order is made the police will have to investigate the matter and submit a report under Section 1732
On receiving the police report the Magis trate may take cognizance of the offence under Section 19010 and issue process straightaway to the accused
The Magistrate may exercise his powers in this 720 behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not
This is because the police report under Section 1732 will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom
If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not
Alternately the Magis trate on receiving the police report may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the com plaint should be dismissed or process should be issued
725D H726A C 21 The position is therefore now well settled that upon receipt of a police report under section 1732 a Magistrate is entitled to take cognizance of an offence under Section 1901b of the Code even if the police report is to the effect that no case is made out against the accused
The Magistrate can take into account the statements of the witnesses examined by the police during the investi gation and take cognizance of the offence complained of and order the issue of process to the accused
Section 1901b does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opin ion that the investigation has made out a case against the accused
The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case if he thinks fit in exercise of his powers under Section 1901b and direct the issue of process to the accused
The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 1901b though it is open to him to act under Section 200 or Section 202 also
The High Court was there fore wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him
728C F 22 The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made 721 pursuant to a report given to the police would not alter the situation in any manner
Even if the appellant had preferred a complaint before the Magistrate and the Magistrate had ordered investigation under Section 1563 the police would have had to submit a report under Section 1732
728G H K Sham Rao vs AR Diwakar  Nagawwa vs section Konjalgi   Abhinandan Jha and Ors
vs Dinesh Mishra   HS Bains vs State  and Tufa Ram  Ors
vs Kishore Singh  relied on
Setting aside the order of the High Court and restoring the order of the Magistrate this Court directed that the case against the Second Respondent shall proceed in accord ance with law
729B C