F.A.O.No138 of 1993(O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.No138 of 1993(O&M) Soma Devi and another ... Appellants Versus Rasala Ram and others ... Respondents and F.A.O.No139 of 1993(O&M) Puran Devi and another ... Appellants Versus Rasala Ram and others ... Respondents Date of Decision: March 20, 2012 CORAM:- HON'BLE MR.JUSTICE NAWAB SINGH Present: Mr.Ashok Gupta, Advocate for the appellants. Mr.Paul S. Saini, Advocate for the Insurance Company. NAWAB SINGH J.(ORAL) This judgment shall dispose of above mentioned two appeals because in both the appeals, claimants have challenged the award dated May 13, 1992 passed by Motor Accidents Claims Tribunal, Ambala (for short `the Tribunal'). 2. On the intervening night of July 27/28, 1990, Mohan Lal and Lachman Dass (both deceased) were urinating on the berm of the road leading from Pinjore to Nalagarh. A truck bearing No.HYE- 1688 (for short `the offending truck'), driven by Rasala Ram came at a fast speed from Pinjore side and struck against a telephone pole. As a result thereof, the truck turned turtle and both the deceased came underneath it and were crushed to death. The occurrence was F.A.O.No138 of 1993(O&M) [2] witnessed by Dilbag Rai. 3. On the statement of Dilbag Rai, FIR No.88 dated July 28, 1990 under Sections 279 and 304-A IPC was registered in Police Station Pinjore against Rasala Ram. 4. Mother and widow of Mohan Lal filed claim application No.86 of 1990, whereas, widow and three sons of Lachman Dass filed claim application No.87 of 1990 under Section 166 of the Motor Vehicles Act, 1988 (for short `the Act'). 5. The Tribunal vide the impugned award dismissed the claim applications on the short ground that the claimants failed to prove that the death of both the persons occurred on account of negligent act of the driver of the offending truck. This finding was returned under issue No.1, which reads as under:- “1. Whether Mohan Lal s/o Kishan Chand and Lachman Dass s/o Sadhu Ram died in a vehicular accident due to rash and negligent driving of respondent No.1, driver of truck No.HYE-1688? If so, to what effect ? OPP” 6. On the point of compensation, the Tribunal assessed the compensation at Rs.86,400/- in respect of the death of Mohan Lal, whereas, in the case of death of Lachman Dass, the Tribunal did not make any assessment holding that the deceased was more than 60 years of age and was leading a retired life and the claimants were not his dependents. 7. The standard of proof required to establish rash and negligence of the driver of an offending vehicle in a case before the Tribunal is not as exacting or strict as would be required in a criminal case. In the circumstances, peculiar to a particular case, the onus of proof can be discharged by the claimants even by showing that the accident could be averted by the driver, if he had taken the ordinary care in driving the vehicle. 8. The rules as to application, mode and sufficiency of evidence would be equally applicable where the matter is criminal, F.A.O.No138 of 1993(O&M) [3] civil or proceedings before a Tribunal like the MACT. When it comes to proof of a fact in issue, it can be proved by documentary, ocular or circumstantial evidence. If a heinous crime like `Murder' can be proved by circumstantial evidence alone, an act of causing death or bodily injury by rash or negligent driving of motor vehicle can also be proved by such evidence which unerringly leads to only one hypothesis that of guilt. 9. Ordinarily, the defences available to a driver of the offending vehicle would be (i) total denial of the involvement, (ii) contributory negligence on the part of the victim, and (iii) composite negligence of third party (joint tort-feasor and the like). 10. In the instant case, the offending truck struck against a telephone pole fixed on the side of Pinjore-Nalagarh road on the intervening night of July 27/28, 1990 at about midnight. After striking against the telephone pole, the offending truck turned over and fell on its side crushing to death Mohan Lal and Lachman Dass, who were urinating at that time. 11. The matter was reported to the police by Dilbag Rai and FIR No.88 dated July 28, 1990 under Sections 279, 304-A IPC was recorded in Police Station Pinjore. The driver fled away and could not be challaned. It should be remembered at this stage that recording of an FIR and challaning of the driver is not a sine qua non. A case can be proved even if there was no FIR recorded. The Tribunal is to decide it on the strength of the evidence and/ or circumstances before it. The fact is that the matter was reported to the Police leading to entering the Daily Diary Report and FIR. Rest, that is, inspection of spot, preparation of site-plan, recording of the statements of the witnesses, etc, was the job of the Police. 12. Dilbag Rai was cited as the eye witness of the occurrence, but claimants failed to examine him before the Tribunal. That by itself proved fatal for their claims which were dismissed without taking into consideration the strong circumstantial evidence, which was available and without doubt established the rashness as well as negligence of the driver. F.A.O.No138 of 1993(O&M) [4] 13. The question whether there was rashness or negligence on part of the truck driver needed a deeper in-sight and a more analytic approach, but the tribunal unfortunately showed want of it. 14. It was and is required to be considered whether there was sufficient evidence to establish the negligence and rashness on part of the truck driver despite absence of Dilbagh Rai from the array of witnesses and the whole matter is to be decided in the light of the foregoing observations made in this judgment. 15. There can be no gainsaying that the accident took place for, the truck actually struck the telephone pole fixed by the side of the road. The truck fell on its side on Mohan Lal and Lachhman Dass resulting in their deaths. The scene was there for anyone to see. Could the fatal accident leading to loss of two precious human lives have taken place, if there was any iota of care on the part of the truck driver. The answer is a big “NO”. PremChand was the owner of the truck. He never proved that the truck was driven by someone else. The fixed telephone pole could not be blamed for its place of fixation, nor it could be the “joint tort feaser”. The two innocent victims could also not be guilty of contributory negligence after all they were not urinating in the middle of the road. The truck would not have rammed into the pole if i) it was not at a high speed, ii) brakes were applied in time; iii) it was steered away, so that it missed the pole; iv) its control was not lost. All or some of these factors must have been responsible for the ghastly occurrence and in any case the circumstances show it beyond any manner of doubt that the truck driver was guilty of causing the occurrence by his rash as well as negligent driving of the offending vehicle. In-fact the circumstances are speaking volumes and there is no escape from the foregoing conclusion that the accident occurred on account of negligent driving of the truck by Risala Ram. In view of this, finding of the tribunal under issue No.1 is set-aside and is reversed. 16. Coming now, to the issue of awarding compensation, firstly in the case of compensation on account of death of Mohan Lal, learned counsel for the appellant has not challenged the F.A.O.No138 of 1993(O&M) [5] assessment made by the Tribunal. The Tribunal has assessed the compensation at Rs.86,400/-. Thus, no interference is required so far as compensation awarded to the legal representatives of Mohan Lal (deceased) is concerned. 17. So far as the compensation on account of death of Lachman Dass is concerned, it was pleaded by his widow and three major sons that he was an agriculturist owning 90 bighas of land and also owned a tractor. He was cultivating the land jointly with his sons. However, to prove that he was owning 90 bighas of land and a tractor, no evidence was led by the claimants. 18. In this view of the matter, considering the age of the deceased to be 60 years, a lump sum amount of Rs.50,000/- as compensation would be just and reasonable for his widow exclusively. The claim application qua the sons of Lachman Dass deserves dismissal as the sons were not dependent on him. 19. In both the case, the successful claimants are also entitled to interest at the rate of 9% per annum on the amount of compensation from the date of filing of claim application till the date of passing of impugned award. 20. The offending vehicle was insured with New India Assurance Company Limited, Kalka, District Panchkula. So, the liability to pay the compensation along with interest would be of the insurer. 21. In view of above:- (i)FAO No.138 of 1993 is allowed. The claimants are held entitled to Rs.86,400/- along with interest at the rate of 9% per annum from the date of filing of claim application till the date of passing of impugned award, payable by the Insurance Company, and (ii)FAO No.139 of 1993 is partly accepted. The claimant – widow Puran Devi is held entitled to Rs.50,000/- along with interest at the rate of 9% per annum from the date of filing of claim application till the date of passing of impugned award, payable by the Insurance F.A.O.No138 of 1993(O&M) [6] Company. Qua other claimants, vis. Data Ram, Ram Lok and Piara Lal, the appeal is dismissed. March 20, 2012 ( NAWAB SINGH ) `gian' JUDGE REFER TO REPORTER - YES