Case: SUNITA Vs. RAJASTHAN STATE ROAD TRANSPORT CORPORATION

the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimized by any false and invented evidence that may be tendered by the adversary party. (emphasis supplied) The High Court has not held that the respondents were successful in challenging the witnesses version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D.2) was cross examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondents case, without any proper reasoning. 30. The High Court discarded the evidence of Bhagchand (A.D. 2) also because he could not recollect the age of the pillion rider. The inability of the witness to identify the age of the pillion rider cannot, per se, be a militating factor to discard his entire version especially since the presence of the witness at the time and place of the accident has remained unshaken and including his deposition regarding the manner of occurrence of the accident and identity of the driver of the offending vehicle. The filing of FIR No.247/2011 (Exh.1) and the subsequent filing of the charge-sheet (Exh.2) corroborate the witnesses evidence. The view taken by the Tribunal therefore, on the veracity of the evidence of A.D. 2, is unexceptionable and there was no reason for the High Court to interfere with the same. 31. Similarly, the issue of non¬examination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. The approach in examining the evidence in accident claim cases is not to find fault with non examination of some best eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. This court, in Dulcina Fernandes (supra), faced a similar situation where the evidence of claimants eyewitness was discarded by the Tribunal and the respondent was acquitted in the criminal case concerning the accident. This Court, however, took the view that the material on record was prima facie sufficient to establish that the respondent was negligent. In the present case, therefore, the Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident. 32. On the issue of negligence by the deceased Sitaram in causing the accident, the Tribunal has referred to the notice issued under Section 134 of the Act (Exh. 7) to the driver of the offending vehicle, respondent No.2. It records that in the said notice, respondent No.2 failed to give any statement indicating that the accident occurred due to any mistake by the rider of the motorcycle, Sitaram. The Tribunal has further relied upon the evidence of Bhagchand (A.D.2) and also upon the site plan of the accident (Exh. 3) to reach a conclusion that respondent No.2 recklessly drove the speeding bus on the wrong side of the road, into the motorcycle being ridden by Sitaram, who was on the correct side of the road, and caused his death. Whereas, the High Court has disregarded the evidence of Bhagchand. Further, the site plan (Exh. 3) cannot be read in isolation. It will have to be examined in conjunction with the other evidence. 33. The site plan (Exh. 3) has been produced in evidence before the Tribunal by witness A.D. 1 (appellant No.1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained muchless proved through a competent witness by the respondents to substantiate their defence. Besides, the concerned police official who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence attributable to deceased Sitaram, moreso in absence of ocular evidence to prove and explain the contents of the site plan. 34. Be it noted that the evidence of witness A.D.2 (Bhagchand) unequivocally states that the respondent No.2 bus driver was negligent in driving recklessly at a high speed on the wrong side of the road, thus, resulting in the accident which caused the death of Sitaram. It was not open to the High Court to discard this evidence. Additionally, the Tribunal had justly placed reliance on the contents of FIR No.247/2011 (Exh. 1) and charge-sheet (Exh.2) which prima facie indicate the negligence of respondent No.2 in driving the bus. We once again remind ourselves of the dictum in Dulcina Fernandes (supra) and thereafter in Mangla Ram (supra), and answer the factum of negligence of the driver of the offending vehicle against the respondents. 35. Reverting to the question of adequacy of compensation amount determined by the Tribunal, the appellants have not assailed the order of the High Court rejecting their appeal. Further, in their appeal before the High Court (SBCMA No.581 of 2017), the limited grievance was about deduction of income tax from the calculated income. That ground is unsustainable in light of the decision in National Insurance Company Limited Vs. Pranay Sethi and Ors. (2017) 16 SCC 680 We cannot permit the appellants to widen the scope in the present appeal, muchless pray for enhanced compensation. We are instead inclined to restore the Award passed by the Tribunal as it has determined the just compensation amount, keeping in mind all the relevant parameters including the apportionment thereof between the family members of the deceased. Upholding that Award would be doing complete justice.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]This is the only analysis/discussion in the entire judgment to reverse the exhaustive analysis done by the Tribunal to which we have set out in brief in paragraphs 5 to 9 above. The thrust of the reasoning given by the High Court rests on the unreliability of the witnesses presented by the appellants: first, that the evidence given by Bhagchand (A.D.2) was unreliable because he was not shown as a witness in the list of witnesses mentioned in the charge sheet filed by the police and that the said witness could not identify the age of the pillion rider, Rajulal Khateek. Second, the said pillion rider himself, Rajulal Khateek, who was the best witness in the matter, was not presented for examination by the appellants. The High Court also relies on the site map (Exh.3) to record the finding on the factum of negligence of the deceased Sitaram in causing the accident which resulted in his death20. We have no hesitation in observing that such a hyper¬ technical and trivial approach of the High Court cannot be sustained in a case for compensation under the Act, in connection with a motor vehicle accident resulting in the death of a family member.The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set asideIt is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunals role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases21. In the present case, we find that the Tribunal had followed a just approach in the matter of appreciation of the evidence/materials on record. Whereas, the High Court adopted a strict interpretation of the evidence on the touchstone of proof beyond reasonable doubt to record an adverse finding against the appellants and to reverse the well considered judgment of the Tribunal in a cryptic mannerAs regards the evidence of Bhagchand, the High Court found that the deposition of the said witness was unreliable because his name was not mentioned in the list of witnesses in the criminal proceedings and also because he was unable to tell the age of the pillion rider. Besides, the said witness lived in Pakhala village, which was 3 (three) kilometres away from the accident spot and hence, he could not have been near the said spot when the accident occurred. The Tribunal had dealt with these objections quite substantially and, in our opinion, correctly, in its judgment, wherein it records:In the present case the petitioners have got examined the eye-witness A.D.2 Bhag Chand son of Ram Dev. Admittedly the name of the witness Bhag Chand is not mentioned in the list of witnesses in exhibit¬2 charge sheet but if the interrogation with this witness is perused then the opponent in order of not considering this witness as eye-witness, has not asked about giving police statement or not having his name in the list of witnesses. The witness A.D.2 Bhag Chand Khateek, in interrogation on behalf of opponents has accepted this that he neither knows Banwari nor after the incident he has seen BanwariDuring interrogation the statement of the witness has been that I was near the place of incident itself. That time I was returning after relieving myself. The argument of the opponents has been that the witness Bhag Chand is resident of village Pakhala whereas the place of incident is at distance of 3 k.m. therefore, the statement of going to toilet is false. Therefore, he should not be considered eye-witness. But the witness A.D.2 Bhag Chand Khateek has stated in his main statement that one day from dated 28.10.2011, he had come to his brothers house at village Shivad. In such a Situation, in our humble opinion, the witness being at a distance of 3 k.m. from spot of incident, being resident of Pakhala village, this cannot be considered that this witness would not be considered eye¬witnessWhereas there is question of his name not being in the charge-sheet as witness, definitely due to this fact, each such witness cannot be considered eyewitness who gives little statement about incident. But the evidence which the witness A.D.2 Bhag Chand Khateek has given on oath, in order to prove that distrust worthy, the opponents have not done any such interrogation from which there is suspicion in the statements of witness. The witness Bhag Chand Khateek was not even this suggestion that his police statement was not taken or the police had not interrogated him. In our humble opinion, in cases like accident occurring suddenly, the persons present near the place of incident are eye-witness of the incident. But during investigation this is not necessary that the investigation agency should name all the eye¬witnesses as witness in the charge sheet. Therefore, the statement of witness A.D.2 Bhag Chand Khateek cannot be considered distrust worthy that his name in the charge sheet is not mentioned as witness28. Clearly, the evidence given by Bhagchand withstood the respondents scrutiny and the respondents were unable to shake his evidence. In turn, the High Court has failed to take note of the absence of cross examination of this witness by the respondents, leave alone the Tribunals finding on the same, and instead, deliberated on the reliability of Bhagchands (A.D.2) evidence from the viewpoint of him not being named in the list of eye witnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Courts observation [as set out in Parmeshwari (supra) and reiterated in Mangla Ram (supra)] that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross examination, for which opportunity was granted to the respondents by the TribunalThe High Court has not held that the respondents were successful in challenging the witnesses version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D.2) was cross examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondents case, without any proper reasoningThe view taken by the Tribunal therefore, on the veracity of the evidence of A.D. 2, is unexceptionable and there was no reason for the High Court to interfere with the sameIn the present case, therefore, the Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident33. The site plan (Exh. 3) has been produced in evidence before the Tribunal by witness A.D. 1 (appellant No.1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained muchless proved through a competent witness by the respondents to substantiate their defence. Besides, the concerned police official who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence attributable to deceased Sitaram, moreso in absence of ocular evidence to prove and explain the contents of the site plan34. Be it noted that the evidence of witness A.D.2 (Bhagchand) unequivocally states that the respondent No.2 bus driver was negligent in driving recklessly at a high speed on the wrong side of the road, thus, resulting in the accident which caused the death of Sitaram. It was not open to the High Court to discard this evidence. Additionally, the Tribunal had justly placed reliance on the contents of FIR No.247/2011 (Exh. 1) and charge-sheet (Exh.2) which prima facie indicate the negligence of respondent No.2 in driving the bus. We once again remind ourselves of the dictum in Dulcina Fernandes (supra) and thereafter in Mangla Ram (supra), and answer the factum of negligence of the driver of the offending vehicle against the respondents35. Reverting to the question of adequacy of compensation amount determined by the Tribunal, the appellants have not assailed the order of the High Court rejecting their appeal. Further, in their appeal before the High Court (SBCMA No.581 of 2017), the limited grievance was about deduction of income tax from the calculated income. That ground is unsustainable in light of the decision in National Insurance Company Limited Vs. Pranay Sethi and Ors.(2017) 16 SCC 680  We cannot permit the appellants to widen the scope in the present appeal, muchless pray for enhanced compensation. We are instead inclined to restore the Award passed by the Tribunal as it has determined the just compensation amount, keeping in mind all the relevant parameters including the apportionment thereof between the family members of the deceased. Upholding that Award would be doing complete justice.