IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No.701 of 1996 Date of decision: 20th July, 2010 Surjit Kaur and others … Appellants Versus Sukhwinder Singh and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Satinder Khanna, Advocate for the appellants. None for respondents No.1 and 2. Mr. N.K. Khosla, Advocate for respondent No.3. KANWALJIT SINGH AHLUWALIA, J. In the present appeal, the appellants-claimants have assailed the order dated 22.4.1995 passed by the Motor Accident Claims Tribunal, Ludhiana (hereinafter to be referred as, ‘the Tribunal’), vide which their claim petition has been dismissed. They have prayed for setting aside the same and accepting the claim petition. A grievance has been made that the Tribunal committed a grave error and acted against law and facts of the case in not awarding compensation to the appellants. This Court on 12.3.2010 had passed the following order:- “In this case, the accident took place on 5.10.1990 at 5.00 PM near Sutlej Bridge, G.T. Road, near Village Laddowal, Tehsil and District Ludhiana. In the accident, Mohinder Singh, aged 55 years, expired. His widow, sons and daughters filed a claim petition for award of compensation, to say that in accident truck bearing temporary registration No. BRX-5950 was involved. A reliance was placed upon FIR No.347 dated 5.10.1990 registered at Police Station Sadar Ludhiana at the instance of Chhinder Singh, AW-4. This witness had not F.A.O. No.701 of 1996 supported the claimant and resiled from his previous statement i.e. FIR. Since this witness was declared hostile, he was cross- examined by the claimant and contents of FIR were put to him. He denied the same. Rather he had taken a stand that police came to his village and told him that a person of his village had died in an accident and that he should go and identify the body. He went to the spot but since he never knew the deceased so he could not identify the dead body. However, this witness admitted that his signatures were obtained on the FIR, Ex.A-2. The Tribunal had framed Issue no.1 as under. ‘1. Whether Mohinder Singh died in a motor vehicle accident on 5.10.90 at 5 P.M. Near Sutlej Bridge near Ladhowal on Ludhiana Jalandhar road on account of the rash and negligent driving of truck bearing temporary registration No.BRX – 5950 with Sukhwinder Singh respondent on its wheels? OPA’ The Tribunal, while determining the aforesaid issue, came to the conclusion that it was a blind accident and police had inducted Chhinder Singh just to formalise their records. The Tribunal had further held that even dead body was cremated by the police and legal representatives came to know regarding the death later on. The Tribunal further held that there was not even an iota of evidence to prove the issue under discussion. Sh. Satinder Khanna, Advocate appearing for the appellants has also contended that Chhinder Singh, despite coercive actions having been initiated by the Tribunal, had not appeared in the witness box and the claim petition was decided against the claimants. Aggrieved against the same, they have filed FAO No.1684 of 1992 and the abovesaid FIR matter was remanded back to the Tribunal to ensure presence of Chhinder Singh. It is urged that since Chhinder Singh was made to step into witness box under duress, he had not supported the claimants. Be that as it may, the fact remains that there is no legally admissible evidence brought on record to conclude that the accident was caused due to the negligence of the offending vehicle insured with respondent No.3. 2 F.A.O. No.701 of 1996 At this stage, Sh. Satinder Khanna, Advocate contends that even though the FIR is not a substantive piece of evidence yet it can be used to confront and corroborate the testimony of the witnesses. There is a judgment in which a legal principle has been propounded that the registration of an FIR can be construed in favour of the claimants as the Motor Vehicle Act is a beneficial legislation. Sh. Satinder Khanna, Advocate assures that the referred judgment will be cited before this Court on the next date of hearing. On request of Mr. Khanna, case is adjourned to 16.03.2010. In case, Mr. Khanna fails to do so, this Court may decide the present appeal in accordance with law.” In response to order dated 12.3.2010, counsel for the appellants has relied upon a judgment rendered by a Single Bench of this Court in Bansi Yadav and another v. Krishan Kumar and another, 2004(2) PLR 234. It will be pertinent to refer to the following paragraphs of the judgment:- “6. Shri Kanwaljit Singh, Advocate, learned counsel for the appellants has contended that the Tribunal erred in dismissing the claim petition inasmuch as there is sufficient evidence n record which amongst others includes the FIR which has been exhibited as Exhibit PB and also the post mortem examination report exhibited as Exhibit PA from which it can be clearly shown that the deceased-Siri Ram died due to the motor vehicle accident caused by the offending vehicle driven by Krishan Kumar (respondent No.1). He, further contends that as per the admitted statement of Bansi Yadav, who appeared as PW2, stated that the deceased was earning Rs.700/- per month, out of which he used to send Rs.500/- to his parents, therefore, the compensation as prayed was liable to be awarded. 7 & 8. xx xx xx xx 9. It is no doubt true that there is no ocular account which may show that Siri Ram died in a motor vehicle accident. However, one cannot lose sight of the fact that case FIR 105 dated 22.7.1985 (Ex.PB) was registered at PS Focal Point, Ludhiana, for the offences under Section 279/338/304-A/427 3 F.A.O. No.701 of 1996 IPC. The said FIR was registered on the statement of one Mukhtiar Mian son of Mani Mian, resident of village Barian, Police Station Katiyan, Distt. Gopalgarh (Bihar). He stated that he alongwith Suresh son of Bhagilu and Jamir had got down from the train at the railway station Ludhiana. They had come to Ludhiana from their village by night train. They got on to a tonga and proceeded towards Viskarma Colony. One of the way the tonga driver boarded one more passenger for focal point. His name later was known as Siri Ram Yadav (deceased) son of Bansi Yadav (claimant). The tonga driver drove the same in the wrong direction and on being told he turned back. At about 2-15 am when the tonga reached 200 yards short of Sherpur bye- pass, one truck came at a high speed without blowing any horn and the bus driver who was driving the bus in a rash and negligent manner struck the tonga on its rear side and they all along with the tonga fell on the left side on the fields and the mare also fell. On hearing the collision, the police officials posted at the round about came at the spot. The tried to stop the bus but it was driven away at a high speed. Due to the accident all received injuries and Siri Ram Yadav died at the spot and another occupant, namely, Jamir died in the hospital. The complainant had noted the number of the bus as HPZ-528. The certified copy of the FIR was tendered in evidence on the statement of the learned counsel for the petitioners appearing before the Tribunal on 9.1.1985. The mode of proof of the FIR or its contents were never challenged by the respondents. Even otherwise, it is well settled that FIR is a public document and certified copy of the same is ex facie admissible in evidence. This is more so in proceedings under the Act where the liability in tort is to be fixed on the preponderance of probabilities. Therefore, the respondents having failed to challenge the mode of proof of the FIR or its contents, it is not for them to now state that the accident did not take place in the manner as is the stand taken by the claimants. Apart from this, the post mortem report is on record as Exhibit PA which has been proved on record on the statement of Dr. S.L.Bansal, Orth. Surgeon, Civil Hospital, Ludhiana who appeared as PW-1. In the post mortem report Exhibit PA, it is mentioned against the column regarding 4 F.A.O. No.701 of 1996 Information furnished by police; “Accident injury.” Besides the injuries are noted as follows:- “1. Abrasion 4” x 3” on the forehead. 2. Multiple abrasions on the face. 3. Bleeding from the ears. 4. Abrasion 2” x 2½” on the anterior aspect of the right region. On exploration of the injury No.1, the skull bone (Parietal right sided) fracture and there is sub-dural haematoma. The cause of death in my opinion was the injuries sustained by the deceased, which could have been received in a road accident. The copy of the post mortem report Ex.PA and Ex.PA/1 is the pictorial diagram showing the seat of the injuries.” (emphasis added) Further reliance has been placed on another Single Bench judgment of this Court rendered in Bara Singh and others v. State of Punjab and others, F.A.O. No.161 of 1988, decided on 20.9.2006. In that case testimony of Mohinder Singh, PW1, author of the FIR was discarded on the ground that he had reached the place of accident 10-15 minutes later. The Court relying upon the FIR, used it as a corroborative piece of evidence to hold that Mohinder Singh had witnessed the occurrence. The following portion of the judgment is required to be noticed:- “In these circumstances the statement made in the FIR if has been used for the purpose of contradiction can also be used for the purpose of corroboration. Such is the position of law under Section 162 of Criminal Procedure Code 1973. According to the proviso to Section 162(1) of Cr.P.C, if the statement made in the FIR is proved then the same may be used by the accused and with the permission of the Court by the prosecution to contradict a witness in the manner provided by Section 145 of Evidence Act, 1872 and that any part of the statement made in the FIR could also be used for corroboration. The principle incorporated by Section 162 Cr.P.C. would be applicable and the section itself ipso-facto may not apply. If that 5 F.A.O. No.701 of 1996 be so than the FIR and the statement made before the court read together would lead to only one conclusion that there were adequate circumstances supporting the inference that accident was caused by the offending bus which was being driven by Kamikkar Singh, driver-respondent No.4. Therefore, the findings recorded by the Tribunal are liable to be set aside. Even otherwise this Court has held in the case of Girdhari Lal Vs. Radhey Sham reported as 1993(2) PLR 109 that once a driver has been tried of an offence of rash and negligent driving, it is prima-facie safe to conclude that the accident had occurred on that account. I have also gone through the file of the Trial Court in Criminal Case No.137/2/87 which has been decided on 25.9.1992.” Now the question arises that when the author of the FIR has not supported the claimants, can FIR which has been exhibited on the record be relied to hold that driver of the offending vehicle was responsible for causing death of Mohinder Singh deceased due to rash and negligent driving. In the present case, FIR has been exhibited as Ex.A2. The examination-in-chief of Chhinder Singh AW4 reads as under:- “Mohinder Singh was not known to me. Police came to our village and told me that a person had died of accident and I should go to identify his body. I came to the spot and was asked to identify the deceased. But I told that I could identify him, as I did not know the deceased. (At this stage, the learned counsel for the claimant requests that the witness is suppressing the truth and he may be permitted to ask the questions. On seeing the record, it is noticed that the FIR had been got registered by this witness and now he is apparently, resiling the version, which he had projected in the FIR. Therefore, he is allowed to cross-examine him.” In the present case, Chhinder Singh AW4, author of the FIR, had appeared in the Court and stated in categoric terms that police had 6 F.A.O. No.701 of 1996 obtained his signatures on the pretext that they have to get the dead body identified. In cross-examination, the witness stated as under:- “It is correct that I had not witnessed any occurrence and my signatures on the FIR were obtained by the police without reading over the same.” In this case, authenticity of the FIR which has been described as a public document in Bansi Lal's case (supra), is itself in doubt. As held in Bara Singh's case (supra), FIR can be used to corroborate the testimony of the witness but cannot replace the same. Thus, no reliance can be placed on the FIR to hold that driver of the offending vehicle is responsible for causing death of Mohinder Singh, even though FIR can be considered to the extent that indeed vehicular accident had taken place and police, after registration of the criminal case, had put the driver of the offending vehicle to the trial. Having said that registration of the FIR is one circumstance, can it be said that the Tribunal had conducted enquiry within the meaning of Section 168 of the Motor Vehicles Act, 1988 (hereinafter referred to as, ‘the Act’)? Another question which arises for consideration is as to what shall constitute an enquiry, as stated under Section 168 of the Act. It is to be noticed that enquiry under Section 168 of the Act is not the same as is the trial under Codes of Civil or Criminal Procedure. What is the scope of enquiry, it requires determination. Section 168 of the Act reads as under: “Section 168. Award of the Claims Tribunal- On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the 7 F.A.O. No.701 of 1996 vehicle involved in the accident or by all or any of them, as the case may be: Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award. (3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.” Section 169 of the Act further states that the Claims Tribunal may follow such summary procedure, as it thinks fit. Section 169 of the Act reads as under: “Section 169. Procedure and powers of Claims Tribunals- (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry.” 8 F.A.O. No.701 of 1996 Registration of the case; follow up action by the police; which includes inquest, post-mortem, recovery of any documents from the spot, site plan of the spot prepared by the Investigating Officer or by the Draftsman; photographs, if any, of the spot, are various circumstances, which can help the Tribunal to take the enquiry to its logical conclusion. A similar question had engaged the attention of Delhi High Court in ‘Mayur Arora v. Amit @ Pange and others’ MAC.APP.609/2009 decided on 12th April, 2010. J.R. Midha, J, who has done pioneering work in the Motor Accident Claims Tribunal, noticed the reasons advanced by the Amicus Curiae and made an effort to determine the scope and ambit of the enquiry as envisaged under Sections 168 and 169 of the Act. It will be necessary to extensively rely upon the judgment rendered in Mayur Arora’s case (supra). Therefore, the following portions of the said judgment are hereby reproduced: “9.2. New India Assurance Company Limited vs. Anita, order dated 6th January, 2010 in SLP (Civil) No.35537/2009– The Hon‟ble Supreme Court has held that the summary procedure under Sections 168 and 169 of the Motor Vehicles Act, 1988 should be consistent with the rules of natural justice but the Claims Tribunal is not bound by the technical rules of evidence. The findings of the Hon’ble Supreme Court are reproduced hereunder:- ‘We may also observe that a Tribunal constituted under the Act is not a regular Court and it is required to decide applications filed for compensation by adopting a summary procedure consistent with the rules of nature justice (Section 168 and 169(1) of the Act). By virtue of Section 169(2), the Tribunal is clothed with the powers of Civil Court for the purpose of taking evidence on oath, enforcing the attendance of witnesses and compelling the discovery and production of documents and material objects but there is nothing in the Act from which it can be inferred that the Tribunal is bound by the technical rules of evidence. Therefore, the Tribunal cannot be faulted for having allowed the parties to lead secondary 9 F.A.O. No.701 of 1996 evidence. Rather, that was the only course available to the Tribunal for doing justice to the parties because the original file was lost in 1994 and the case had to be decided on the basis of reconstructed file.’ XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 9.4. Abdul Subhan vs. State (NCT of Delhi), 2007 CriLJ 1089, 133(2006)DLT562– This Court has issued following directions for proper investigation of road accident cases:- ‘13. Before I part with this case I would like to make it known that I have come across various cases of a similar nature involving allegations of rash and/or negligent driving in which I find that the investigations carried out are below par. It is a well-known fact that road accidents are on the rise and many of these accidents result in fatalities. It is also becoming more and more apparent that the investigating agencies are not investigating such accidents in a proper and scientific manner. The result and consequence of which is that even those persons who might have been guilty for having committed offences under Sections 279/304A IPC are being acquitted on the basis of benefit of doubt or lack of evidence. This is not a very happy situation. In cases of road accidents particularly those which result in fatalities, the investigation should be carried out in a swift and scientific manner. 13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the appreciation of courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of the tyre skid marks of the vehicles 10 F.A.O. No.701 of 1996 involved in the impact go a long way in indicating the speeds at which the vehicles were traveling. This would enable the courts to examine the evidence in a much more objective manner and the courts would not be faced with vague and subjective expressions such as "high- speed". 13.2. The mechanical inspection reports that are prepared are also, I find, in a majority of cases, of a very superficial and cursory nature. The inspection ought to be carried out by qualified personnel who are able to indicate in their reports the exact physical conditions of the vehicles. They should be able to point out with exactitude the damage suffered by the vehicles as a result of the impact. The mechanical inspection report should indicate all the tell-tale signs of the collision such as the paint of one vehicle rubbing off on the other. It should also indicate as to whether the vehicles were mechanically sound or not prior to the impact so as to enable the court to arrive at a conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control. 13.3. As a rule, photographs ought to be taken not only of the vehicles involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by courts. 13.4. The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5. Furthermore, the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case. 13.6. The drivers of the vehicle involved must also be subjected to tests to reveal whether they had consumed any intoxicants. 13.7. Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who 11 F.A.O. No.701 of 1996 are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because, no criminal court would (and ought not to) convict any person merely on the basis of conjectures, assumptions, probabilities. All elements of subjectivity need to be eliminated and the investigation should be such that, when a chargesheet is filed, the court is presented with a case which when taken objectively would lead to the inescapable conclusion that a conviction is maintainable.’ XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 9.16. Somari Devi vs. Ragwar Singh in FAO No.884/2003 decided on 22nd May, 2009– This Court has elaborated the scope of Section 165 of the Indian Evidence Act, 1872. The relevant