1 In the High Court of Madhya Pradesh MA 1140 of 2009 Bajaj Allianz General Insurance Company Vs. Smt. Resho Devi & Others & MA 925 of 2009 Smt. [PRECEDENT], dtd. 21-02-2019 Shri [ENTITY], Counsel for Insurance Company. Shri [ENTITY], Counsel for claimants. Smt. [ENTITY], Counsel for Owner and Driver. By this common Judgment, M.A No. 1140 of 2009 filed by the Insurance Company and M.A. No.925 of 2009 filed by the Claimants of enhancement of compensation amount shall be decided. These appeals have been filed against the award dated 16-4-2009 passed by IVth Additional Motor Accident Claims Tribunal, Morena, in [CASE NUMBER] by which an amount of Rs.2,97,100/- has been awarded to the claimants and the Owner, Driver and Insurance Company have been held jointly and severally liable to pay the compensation amount. The necessary facts for the disposal of the present appeal in short are that the claimants have filed a claim petition under [SECTION] of [ACT], on the pleadings that the deceased [ENTITY] aged about 33 years, was coming back in Bus bearing registration No.M.P.06P-0156. The driver of the said bus, by driving the bus in a rash and negligent manner dashed against a tree, as a result of which the [ENTITY] suffered fatal injuries and expired on the spot. A F.I.R. was lodged by one [ENTITY] on the basis of which, crime No.57/08 was registered by Police Station Joura, Distt. Morena for offence under [SECTION], [SECTION] and [SECTION] of [ACT] and [ENTITY], driver of the bus was arrested, the offending bus was seized, the postmortem of the dead body of the deceased [ENTITY] was got done and after concluding the investigation, the police filed a charge sheet against [ENTITY], the driver of the bus. Thus, a claim petition was filed, claiming Rs.23,44,000/- under [SECTION] of [ACT]. The Insurance Company, filed its written statement and denied the averments. It was pleaded that in fact the deceased was travelling on the roof of the bus which indicates, that the deceased herself was negligent. The bus was overloaded. The claimants are the parents of the deceased, thus, they cannot be said to be dependent upon the deceased. The bus was being plied without any valid registration and permit and thus, the owner has violated the terms and conditions of Insurance Policy. No information of accident was given to the Insurance Company. The owner of the bus also filed his separate written statement. The factum of death and postmortem was denied for want of knowledge. It was admitted that the bus was insured. The Claims Tribunal, after framing issues and recording evidence, came to the conclusion that there was no violation of terms of Insurance Policy and the Insurance Company is also jointly and severally liable. Accordingly, the Claims Tribunal allowed the claim petition filed by the claimants and granted compensation of Rs.2,97,100/- . Challenging the award dated 16-4-2009, it is submitted by the Counsel for the Insurance Company, that the claimants themselves have filed the copy of the F.I.R. Ex.P.2. The Insurance Company has also filed the copies of the statements of various witnesses which were recorded by the police under [SECTION] of [ACT] as Ex.D-16 to Ex.D-19 to show that the deceased was travelling on the roof of the bus and thus, it is submitted that in fact the deceased herself was travelling on the roof of the bus which was in contravention of [SECTION] of [ACT] and thus, the Insurance Company is not liable. Per contra, it is submitted by the Counsel for the respondents/claimants/ owner/driver, that the documents of criminal case have no relevance. The Claim petition has to be decided on the basis of the material available on record. The strict standard of proof is not required, and the claim cases are to be decided on the preponderance of probabilities. Further, the scribe of the F.I.R. was not examined by the Insurance Company, however, admitted that [ENTITY] (PW3) has admitted that deceased [ENTITY] and [ENTITY] were instructed by the conductor to keep their luggage on the roof of the bus and when they were keeping the luggage on the roof, the driver of the bus started the bus and dashed against the deceased. Heard, the learned Counsel for the parties, on the appeal filed by the Insurance Company. The contention of the appellant/Insurance Company that the deceased was travelling on the roof of the bus is based on the F.I.R., Ex. P.2 and the statements of some witnesses, which were recorded by the police under [SECTION] of [ACT] It is well established principle of law that the documents of criminal case have no relevance. Further, neither the F.I.R. is a substantive evidence, nor the statements of the witnesses recorded under [SECTION] of [ACT] are substantive evidence. At the most, they can be used for proving contradictions and omissions. However, in the light of the admission of [ENTITY] (PW3), it is held that [ENTITY] was asked to keep the luggage on the roof of the bus and that is why he was on the roof of the 4 bus. The Supreme Court in the case of Mangla Ram Vs. Oriental Insurance Co. Ltd. reported in [PRECEDENT] has held as under :- 24. It will be useful to advert to the dictum in [PRECEDENT], 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 [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 [ACT], 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. 458-59) "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 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 no-fault 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 [SECTION] of the [ACT] 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 5 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 [ENTITY], 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 [ENTITY]. In paras 8 & 9 of the reported decision, the dictum in United India Insurance Co. Ltd. v. [ENTITY], has been adverted to as under: ([ENTITY] case, SCC p. 650) "8. In United India Insurance Co. Ltd. v. [ENTITY] while considering the nature of a claim petition under the [ACT] a three-Judge 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: ([ENTITY] 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 [ENTITY], the Court opined that non- 6 examination 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. However, the Claims Tribunal has held that although the deceased was travelling on the roof of the bus, but it has not been proved that the accident took place because of the fact that the deceased was sitting on the roof of the bus. Further more, the present claim petition was filed under [SECTION] of [ACT], therefore, it is not required to prove the negligence of any party. The only fact which is required to be proved is that the accident had taken place resulting in death or injury. Accordingly, it is held that the Claims Tribunal, did not commit any mistake in holding that the Insurance Company is jointly and severally liable. Thus, the appeal filed by the Insurance Company i.e., [CASE NUMBER] is hereby dismissed. So far as the appeal filed by the claimants for enhancement of compensation amount is concerned, the Claims Tribunal has held that the deceased was an unskilled labour and therefore, has assessed his income at Rs.2,100/- per month. Monthly Income = Rs. 2,100 Yearly Income = Rs. 2,100 x 12 = 25,200 Expenses on himself = 1/3rd Total loss of income = Rs.16,800 Multiplier = 17 Compensation = Rs. 2,85,600 Consortium = Rs. 5,000 Loss of Estate = Rs. 2,500 Transportation = Rs. 2,000 Funeral Expenses = Rs. 2,000 Total compensation = Rs. 2,97,100/-. 7 It is submitted by the Counsel for the claimants that the income of the deceased should have been taken at Rs.3,000/- per month and not Rs 2,100/-. The accident had taken place on 16-4-2009, thus, this Court is of the view that the monthly income of the deceased being an unskilled labour cannot be less than Rs.3000/- per month. Accordingly, it is held as under :- 1. Income of the deceased : Rs. 36,000 2. Expenses on himself : 1/3rd 3. Dependency : Rs. 24,000 4. Multiplier : 17 5. Total income : Rs. 4,08,000 6. Loss of Estate : Rs. 2,500 7. Consortium : Rs. 5,000 8. Transportation : Rs. 2,000 9. Funeral Expenses : Rs. 2,000 Total Compensation : Rs. 4,19,500 The enhanced compensation amount shall carry the interest @ 6% from the date of filing of the claim petition. Accordingly, the [CASE NUMBER] filed by the claimants is allowed to the extent mentioned above. Resultantly, the award dated 16-4-2009 passed by IVth Additional Motor Accident Claims Tribunal, Morena, in [CASE NUMBER] is modified to the extent mentioned above. [CASE NUMBER] is Dismissed, and [CASE NUMBER] is Allowed. ([ENTITY]) Judge *
[ENTITY] 2019.02.28 15:27:09 +05'30'