MISC. APPEAL No.216 OF 2001 1. GRIJESH PRASAD YADAV @ Girijesh Prasad Yadav son of Bhaju Prasad Yadav 2. Gouri Shankar Yadav, son of Grijesh Prasad Yadav. Residents of Meerganj, P. S. Meerganj, District Gopalganj. ..Opposite parties 1 and 2 in the court below-Appellants Versus 1. RAMJHARI DEVI, wife of Late Shankar Chaudhary, resident of village- Etawan, P. S. Meerganj (Uchakagaon) District- Gopalganj ...Applicant-Respondent 1st Set 2. General Insurance company Chapra. ..Opposite party in the court below- Respondent 2nd set With Misc. Appeal No.296 oF 2004 1. GIRIJESH PRASAD YADAV son of Bhaju Prasad Yadav, Range Officer, Forest Department, Meerganj, P.S. + P. O. Meerganj, District Gopalganj, At present Forest Range Officer, Forest Works Employment Office, Ban Bhawan, Nehru Nagar, Patna- 800013 2. Gouri Shankar Yadav, son of Girijesh Prasad Yadav, At P. O. and P.S. Meerganj, District Gopalganj. ... Opposite parties 1 and 2 in the court below-Appellants Versus 1. RAMJHARI DEVI, wife of Late Shankar Chaudhary, resident of village- Etawan, P. O. Meerganj, P. S. Uchakagaon, District Gopalganj. ... Claimant—Respondent 1st Set 2. General Insurance Company, Main Road Chapra, P. S. Chapra, District Chapra, Insurer of Motor Cycle bearing No. U. P. 52-B, 2547, Rajdoot. .... Opposite party in the court below- Respondent 2nd Set ---- For the appellants …. Mr. Rajendra Prasad,Sr. Adv. Mr. Pramod Kumar, Adv. For the respondent no.1 ..Mr. Durgesh Kumar, Adv. P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kumar Jha, J. Heard counsel for the parties. Both the appeals arises out of same occurrence leading to death of one Late Shankar - 2 - Chaudhary on 7.2.1997 leading to a compensation case under Motor Vehicles Act vide M.V. Case No. No. 11 of 1997 filed before M.A.C Tribunal Gopalganj, hereinafter referred to as the Tribunal. Misc. Appeal No. 216 of 2001 arises out of an interim order dated 23.4.2001 of the said Tribunal awarding Rs.50,000/- by way of interim compensation payable to respondent no. 1 by the appellants whereas Misc. Appeal No. 296 of 2004 arises out of judgment dated 7.5.2004 and the resultant award dated 24.06.2004 passed by the Tribunal holding the appellants liable to pay a sum of Rs.1,85,500/- for death of husband of respondent no. 1 in an accident from the motorcycle belonging to appellant no. 1, being driven by his son appellant no. 2. M. A. No. 216 of 2001 in fact on account of subsequent rendering of the impugned judgment and award being subject matter of M.A. No. 296 of 2004 has for all practical purposes became academic if not infructuous inasmuch as whatever interim compensation was directed to be paid by the Tribunal in its order dated 23.4.2001 now - 3 - stands merged with the final amount of compensation in the judgment which is the subject matter of the aforesaid M. A. No. 296 of 2004. In this regard however this much needs to be kept in mind that the appellants despite rejection of their payer of stay of the impugned order in M. A. No. 216 of 2001 vide an order of this Court 3.8.2001 as with regard to payment of interim compensation of Rs.50,000/- have not paid the same till date and therefore the respondent no. 1, the widow has stood deprived of the benefit of interim compensation as assured under beneficial legislation in terms of Section 140 of Motor Vehicles Act, 1988 (hereinafter referred to as the „Act‟) for meeting the sudden crisis emerging out of the death of a bread winner. The basic facts as discussed at length in the impugned judgment are not in dispute that on fateful day i.e. 7.2.1997 the deceased Shankar Chaudhary was going on a bicycle from Mirganj side to Hathwa and when he had reached near Barawa Kaparpura village on Mirganj-Hathwa Road, P. S. Mirganj, District Gopalganj he had met with an accident on account of rash and negligent driving of a motor-cycle by the appellant no. 2, the son - 4 - of appellant no. 1 who had bought the new motor- cycle only on 27.1.1997 and in fact his insurance policy, for which the dealer had already collected the amount of premium, was yet to be delivered. The fact remains and the appellants have also admitted before the Tribunal that their vehicle was not insured on the day of occurrence i.e. 7.2.1997 and therefore respondent no. 2, General Insurance Company, stood absolved of its liability either in the matter of payment of interim compensation or in the matter of payment of final compensation under the impugned judgment and award. In the earliest version of the occurrence, being a FIR lodged by the village Chaukidar, an eye witness to the occurrence, he had clearly alleged that such accident and resultant death of husband of respondent no. 1 had taken place on account of rash and negligent driving of motor cycle by appellant no. 2. A subsequent story however was developed by the appellants before the police that as a matter of fact both driver (appellant no. 2) and pillion rider of the motor cycle and the deceased as also the husband of respondent no. 1 on a bicycle were - 5 - hit by another jeep whose driver was successful in running away from the scene without being caught at the spot and therefore by introducing this story which was also partly believed by the police while submitting a final form against the appellants in Mirganj P. S. Case No. 35 of 1997. It was this defence which was sought to be developed by the appellants before the Tribunal by taking a plea that they were not liable to pay compensation for the death of husband of respondent no. 1. Thus, the main question before the Tribunal was fixation of liability of the appellants in backdrop of their defence developed on account of accident being caused due to the jeep and not on account of motor-cycle. This aspect of the matter has been gone into at great length by the Tribunal in light of the evidence on record wherein oral evidence of four witnesses of claimant C.W. 1 Vishwanath Choudhary, C. W. 2 Ramjhari Devi, C. W. 3 Ranglal Mahato and C.W. 4 Ram Chandra Manjhi have been tested in the light of the documentary evidence such as Ext. 1, a copy of first information report, Ext. 2, charge-sheet of criminal case, Ext. 3 post-mortem report, Ext. 4 challan - 6 - forwarding the dead body for post mortem, Ext. 5 inquest report, Ext. 6 order granting bail to the appellants by the criminal court, Ext. 7 voter identity card of the deceased and Ext. 8 death certificate and their comparative evaluation has also been made by the Tribunal while examining of oral deposition of three witnesses of the appellants namely O.P.W. 1 Jita Sah, O.P.W. 2 appellant no. 1 himself and O.P.W. 3 appellant no. 2 and their documentary evidence, Ext. A and B being the same FIR and charge-sheet which are Exts 1 and 2 filed by the claimant, Ext C order-sheet of criminal case, Ext. D certificate issued by Dy. Superintendent Hathwa hospital and Ext. E and E/1 prescription of Dr. Arun Kumar and Ext. F X-ray plate of appellant no. 2. The Tribunal on the basis of analysis of aforesaid evidence on record has held the appellants liable to pay compensation by recording a finding of fact that the death of husband of the respondent no.1, claimant was caused on account of accident taking place due to rash and negligent driving of the motorcycle by the appellant no. 2 by recording following findings:- “18. I on careful examination of documentary evidence as adduced on behalf - 7 - of the claimant and the O.Ps. and also considering the oral evidence adduced on behalf of the claimant and the O.Ps. I find that in written statement O.Ps. have submitted in para-3 of written statement that Rang Lal Mahato, Ram Chandra Manjhi, Yugal Kishor Das, Vidya Ram and Jitu Sah had visited the place of accident and the I/O of the case examined them but from the record, I find that out of this witness, Ranglal Mahato and Ram Chandra Manjhi have been examined on behalf of the claimant and having fully supported the case of the claimant, they have deposed before the Tribunal that motor-cyclist who is O.P. No. 2 in this claim case dashed the cyclist and the cyclist fell down and later on he died in the hospital. O.Ps. have examined Jitu Sah, But this witness in para-6 of his cross-examination states that he had no meeting with the police till the date in respect of the alleged accident. From the entire evidence of this O.P.W. 1, I find that he had not in fact seen the accident. Because he deposed in para-1 of his testimony he was at his Bathan and both the cyclist as well as the motor cyclist had become unconscious and in para-2 this witness deposes that Choukidar had come after half an hour which is certainly absurd and against the materials available on the record not only the oral evidence as available on the record but also from the documentary evidence, because there are consistent evidence of two witnesses who are C. W. 3 and 4. Apart from evidence of these two witnesses, C. W. 1 on whose - 8 - statement Mirganj P. S. case No. 35 of 1997 was registered very clearly deposes in his testimony that accident occurred in his full view and motor-cyclist dashed the cycle of the decd. He has very categorically deposed and also stated in his cross-examination about the manner of accident. The ld. Cross-examiner has tested the evidence of this witness on the point of manner of accident and also satisfied on this point that in fact how the accident occurred. Apart from this, the dictum res ipsa loquittor certainly goes against the O.Ps. because the circumstance tells itself that how the accident occurred and at the time of accident as to whether a jeep was passing through the said passage particularly at the time of accident is not so and thus I find that the accident had taken place as alleged by the claimant because the motor cyclist was going with pillion rider and dashed the cyclist and on account of that cyclist fell down and he was removed to the hospital where he succumbed to his injuries. C. W. 1 in para- 6 and 12 of his cross-examination has stood to his cross-examination and evidence of C.W.1 has not been shaken and the credibility of this witness remained intact so far evidence on accident is concerned and thus I find that there is admission on the part of the O.Ps. that on the alleged date, time and place of occurrence O.P. No. 2 was going on offending motor-cycle though at the time of accident registration number was not on the motor-cycle and later on - 9 - registration number has been alleged/given. It has also been admitted by the O. P. that the decd. was also going on a cycle. So there is admission on the part of the O.Ps. that the decd. Shankar Choudhary was going on his cycle whereas O.P.No. 2 Gouri Shankar was going on his motor-cycle with a pillion rider but a twist has been given by the O.Ps. and the stand of the O.Ps. is this that the cyclist as well as the motor- cyclist were dashed by a commander jeep. In para 7 of WS it has been submitted that O.P. No. 1 was driving motorcycle but he as OPW 2 has not said so. But from the entire evidence I find that the case of the claimant is very consistent on this point that the cyclist was going on his cycle and he was dashed by the motorcyclist. Both the cycle as well as the motor-cycle are two wheel vehicles and therefore, after dash both the cyclist and the motor-cyclists had fallen down and sustained injuries. The motor-cyclist was driving his motorcycle rashly and negligently and a severe jolt was given and therefore, the cyclist sustained such injuries which snatched his valuable life. Ext. A and 1, 3, 4, 5 and 6 go to show that the decd. was dashed by offending motor- cycle and due to negligence and rash driving of O.P. No.2 accident took place, wherein I find no doubt because the manner of accident has also been to such a substantial extent has been mentioned in Ext. 1 and A from which, it transpires that there was no any third vehicle involved in the alleged accident. The claimant has - 10 - shown the manner of accident in simple and in view of the admitted position onus to prove the manner of accident as alleged by the O.P. shifted on the O.Ps. because the claimant has discharged her onus and it is now on O.Ps. to prove that there was commander jeep involved in causing the accident which has not been discharged. The reason behind saying it is this that the distance of cyclist and motor-cyclist has not been shown and also it has not been shown that from which way commander jeep was coming and how the driver of the jeep dashed both of them the cyclist as well as the motor-cyclist. It has not been shown to the Tribunal that cyclist and motor-cyclist were going on side by side or how they were proceeding one behind another. In other words who was ahead motorcyclist or cyclist and which of them was dashed first. From the entire evidence, I find nothing so that a jeep had dashed cyclist as well as motor- cyclist. Therefore, on consideration of documentary evidence as well as oral evidence and also taking into consideration Ext. 3 and 5, I find nothing so that cyclists was dashed by commander jeep. Hence I find no force in the contention of the ld. Counsel for the O.Ps. that the cyclist was hit by commander jeep. The C.Ws. 1 and 4 have deposed about the true facts and it has not been shown that why they are deposing against the O.Ps. So, considering all the facts and circumstances of the case and also the evidence adduced on behalf of the respective parties and considering the submissions. I find that - 11 - the claimant has succeeded in establishing the manner of accident, time and place of accident and the O.Ps. have led evidence against para 7 pleading of WS wherein have said that O.P. No. 1 was driving motorcycle hence not acceptable and accordingly, I find that the deceased Shankar Choudhry was going on cycle on 7-2-97 at about 11.00 A.M. and when he reached Barawa Kaparpura village, motor-cyclist O.P. No. 2 dashed the cycle of the decd. Shankar Choudhry and Shankar Choudary fell down and became unconscious and he was removed to hospital where he died and therefore, I find that the claimant has got valid cause of action for the present claim case and decd. Shankar Choudhry has died in a motor- vehicle accident arising out of use of offending vehicle bearing Reg. No. UP 52-B- 2547 which was being driven rashly and negligently by O.P. No. 2 as alleged by the claimant and hence I find and hold that the claimant has established both the issues in her favour and accordingly they are decided in her favour and against the O.Ps. holding liable for the accident to O.P. No. 1, who is owner of the motor-cycle.” Counsel for the appellants however while assailing the aforesaid findings recorded by the Tribunal has concentrated on the aspect that when the police had already held that accident in question had taken place by a jeep involving both the riders of motor-cycle and the bicycle and - 12 - consequently the first information report filed by village Chaukidar of Mirgang P. S. Case No. 35 of 1997 was found to be false in form of submission of final form by the police absolving the appellants, which further stood affirmed in the order of learned magistrate accepting the final form, the Tribunal ought not to have made any departure merely on the ipse dixit on the basis the oral deposition of that very informant of the police case, Vishwanath Chaudary (C.W. 1) or two other alleged eye witness Rang Lal Mahato (C.W. 3) and Ram Chandra Manjhi (C. W. 4) whose version of the accident being on account of rash and negligent driving of motor-cycle had been found to be false by the police as was also supported before Tribunal by another eye witness of the accident being Jita Sah, O.P.W. 1. In sum and substance, counsel for the appellants was of the view that once the police had found the criminal case to be false and the allegations made in the FIR to be incorrect, there was no scope for the Tribunal to take a different view and to that extent some sort of finality was also sought to be attached to the order of magistrate dropping the criminal proceeding by way - 13 - of acceptance of final form arising out of Mirganj P. S. Case No. 35 of 1997. In the considered opinion of this Court such argument as with regard to whittling down the powers of the Tribunal to reach to its own conclusion on the basis of evidence on record by pressing reliance on the finding of the police in an investigation leading to submission of final form even its acceptance in terms of power under Code of Criminal Procedure cannot be accepted as it is well settled that it is a judgment of Civil Court which would bind a criminal court and not vice versa. More over in the present case there is no finding of the court rather only final form has been accepted which also appears to be done without service of notice and hearing to the informant, village Chaukidar or to the members of the family of the deceased as is the requirement of law. In that view of the matter this court would not be in a position to attach any finality to the so-called closure of investigation by the police holding the appellants to be not criminally liable for being prosecuted and sentenced for the accident in question specially when it is an admitted fact as recorded by the Tribunal that the - 14 - learned Magistrate while accepting final form did not ensure issuance of service of notice on the informant and follow the procedure as laid down by the Apex Court in the case of Bhagwant Singh vs. Commissioner of Police, reported in AIR 1985 SC 1285 which cast a mandatory duty on the magistrate deciding not to take cognizance of an offence or to drop proceedings of a criminal case instituted by way of a police case to give notice and hear the informant. In any event, an order of discharge from criminal liability cannot be equated to be one as judgment of acquittal by criminal court and therefore this Court cannot attach any importance to the submission of final form by the police in Mirganj P. S. Case No. 35 of 1997. An issue adjudicated by civil court in its judgment, which the Tribunal under the Act is, would be in fact binding on the criminal court and to that extent Section 43 of the Evidence Act also takes full care of relevance of such judgment of criminal court as was held by this court in the case of Ramadhar Chaudhary vs. Janki Chaudhary, reported in AIR 1956 Patna 49 and reiterated in the case of Badri Narain Prasad @ Badri Prasad vs. Anil Kumar Gupta and another, reported in 1979 - 15 - BLJR 348 laying down a law that the judgment of criminal court is not at all binding on a Motor Accidents Claim Tribunal and a judgment of a criminal court is admissible to prove only who the parties to the dispute were and what order was passed therein. In the background of the aforementioned settled position in law if this court would examine and reappraise the evidence on record, it would find that the depositions of three witnesses of the claimant, respondent no. 1 had wholeheartedly supported the entire case of her husband being hit by rash and negligent driving of the motor-cycle by the appellant no. 2. It has to be noted that the presence of these three witnesses, C. W. 1, C. W. 3 and C. W. 4 at the spot at the time of accident was also admitted by the appellants in their written statement. This Court, therefore, would find it difficult to dislodge the oral testimony of C.W. 3 and C. W. 4 once their evidence is analysed as a whole. It has also to follow that what they said about the reporting of the said occurrence to the police by CW 1, village chaukidar lodging first information report is also true and correct. C.W. 1 in his - 16 - evidence has supported the fact that he was not only an eye witness but had also seen a speeding motor cycle coming from Hathwa side to Mirganj side to have dashed the husband of respondent no. 1 coming from Mirganj side and going towards Hathwa side at the confluence of village Barawa Kaparpura. In fact, this aspect of the matter as with regard to occurrence in question taking place in broad day light about 10 a.m. in the morning stands fully supported by oral evidence of C.W. 1 who had carried the injured, husband of respondent no. 1 to the dispensary where first information report was recorded. Any enmity on the part of village chaukidar towards the appellant is also ruled out because he had also carried appellant no. 2 and pillion rider to the same dispensary for their first aid treatment as they also had received some minor injuries in the said accident. Thus, if the husband of respondent no. 1 had died in the dispensary itself in course of treatment, the son of the appellant no. 1 being appellant no. 2 was fortunate to save himself on account of his being treated in posh nursing home of a private doctor that by itself could not lead to an inference that no accident in the manner alleged - 17 - by C.W. 1 had ever taken place. This court is fully satisfied that the story of accident by another jeep was actually subsequently introduced at the influence of appellant no. 1, a government servant, holding the post of Ranger only to avoid the liability of payment of compensation and to that extent evidence adduced by the appellants did not bring any such revealing fact which could establish that the accident had taken place by another jeep. The only person brought forward by the appellants as an eye witness is O.P.W. 1 Jita Sah, whose truthfulness has immediately been exposed in his cross-examination when he has stated that he never met the police nor the police had recorded his version as with regard to the accident. As a matter of fact, when he has stated in his deposition that appellant no. 2 on motor cycle with pillion rider was going from Hathwa side to Mirganj side and the deceased, husband of respondent no. 1 was going from Mirganj side to Hathwa side and the jeep was coming from Mirganj side to Hathwa side, he has not only tried to change the entire manner of occurrence but has also contradicted the appellants‟ vision in the - 18 - written statement who had categorically stated that both motor cyclist and cyclist were going from Mirganj side to Hathwa side and the speedy jeep coming from opposite direction had hit both of them simultaneously. As to how far even that version in the written statement of the appellant is correct, can be found out from a