# MANGLA RAM v. THE ORIENTAL INSURANCE CO. LTD. & ORS

- **Citation:** [2018] 5 S.C.R. 287
- **Court:** Supreme Court of India
- **Decided:** 2018-04-06
- **Case number:** Civil Appeal Nos. 2499-2500 of 2018
- **Bench:** Dipak Misra, A. M. Khanwilkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mangla-ram-v-the-oriental-insurance-co-ltd-ors-32904
- **Pages:** 28

## Headnote

Motor Vehicles Act, 1988: s.166 - Compensation -
Contributory negligence - Claimant's case was that on a fateful
day while he was driving a motorcycle, he was hit by jeep driven by
respondent no.2 resulting in serious injuries and ultimately
amputation of right leg above the knee - Claim petition - Tribunal
did not accept the evidence of witnesses produced by claimant,
however opined on the basis of police investigation report that the
accident was caused by jeep in question - Tribunal also noted the
site plan and concluded that the claimant was driving on the wrong
side of the road and contributed to accident and accordingly
awarded compensation - High Court set aside the award passed by
Tribunal noting that no finding regarding negligence of driver of
offending jeep was recorded by Tribunal rather it found that the
claimant was negligent while riding his motorcycle and that statement
of claimant that bumper of jeep had hit the rear of his motorcycle
was contradicted by the investigating report which recorded that it
did not bear out that jeep was involved in an accident - Instant
appeal filed by the claimant - Held: High Court committed manifest
error in reversing holistic view of Tribunal in reference to the
statement of witnesses forming part of charge sheet, FIR, jeep
seizure report - Indeed, the High Court was impressed by the
Mechanical Investigation Report which stated that only a scratch
mark on the mudguard of the left tyre of the vehicle had been noted
- On that basis, High Court observed that the same was in
contradiction to the case of claimant - This conclusion was based
on surmises and conjectures and also in disregard of the relevant
fact that the vehicle was seized by the police after investigation,
only after one month from the date of the accident and the possibility
of the same having been repaired in the meantime could not be
ruled out - Further, the fact that the offending jeep was driven
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rashly and negligently by respondent No.2 when it collided with the
motorcycle of the claimant leading to the accident could be discerned
from the evidence of witnesses and the contents of the charge-sheet
filed by the police, naming respondent No.2 - The key of negligence
on the part of the driver of the offending jeep as set up by the
claimants was required to be decided by the Tribunal on the
touchstone of preponderance of probability and certainly not by
standard of proof beyond reasonable doubt - Further the finding
that motor cycle was found one foot wrong side on the middle of the
road cannot be basis to assume that appellant was driving on the
wrong side of road at the relevant time - Thus, finding of Tribunal
that claimant contributed to occurrence of accident by driving
motorcycle on wrong side of road was wrong and cannot be
sustained.
Motor Vehicles Act, 1988: s.166 - Quantum of compensation
- The Tribunal noted the claim of the claimant-appellant that he
was getting Rs.1500/- per month towards his salary and Rs.600/-
per month towards food allowance from employer - The fact that
the claimant had possessed heavy transport motor vehicle driving
licence has not been doubted - The driving licence on record being
valid for a limited period, cannot be the basis to belie the claim of
the claimant duly supported by employer, that the claimant was
employed by him on his new truck - Besides the said income, the
claimant claimed to have earning of Rs.1000/- per month from
farming fields - The Tribunal, however, pegged the loss of monthly
income to the claimant at Rs.520/- per month while computing the
compensation amount on the finding that there was no convincing
evidence about complete non-employability of the claimant - Further,
no provision was made by the Tribunal towards future prospects -
The Tribunal, therefore, should have computed the loss of income
on that basis - Additionally, the claimant because of amputation of
his right leg would be forced to

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[2018] 5 S.C.R. 287
 287
MANGLA RAM
v.
THE ORIENTAL INSURANCE CO. LTD. & ORS.
(Civil Appeal Nos. 2499-2500 of 2018)
APRIL 06, 2018
[DIPAK MISRA, CJI AND A. M. KHANWILKAR, J.]
Motor Vehicles Act, 1988: s.166 - Compensation -
Contributory negligence - Claimant's case was that on a fateful
day while he was driving a motorcycle, he was hit by jeep driven by
respondent no.2 resulting in serious injuries and ultimately
amputation of right leg above the knee - Claim petition - Tribunal
did not accept the evidence of witnesses produced by claimant,
however opined on the basis of police investigation report that the
accident was caused by jeep in question - Tribunal also noted the
site plan and concluded that the claimant was driving on the wrong
side of the road and contributed to accident and accordingly
awarded compensation - High Court set aside the award passed by
Tribunal noting that no finding regarding negligence of driver of
offending jeep was recorded by Tribunal rather it found that the
claimant was negligent while riding his motorcycle and that statement
of claimant that bumper of jeep had hit the rear of his motorcycle
was contradicted by the investigating report which recorded that it
did not bear out that jeep was involved in an accident - Instant
appeal filed by the claimant - Held: High Court committed manifest
error in reversing holistic view of Tribunal in reference to the
statement of witnesses forming part of charge sheet, FIR, jeep
seizure report - Indeed, the High Court was impressed by the
Mechanical Investigation Report which stated that only a scratch
mark on the mudguard of the left tyre of the vehicle had been noted
- On that basis, High Court observed that the same was in
contradiction to the case of claimant - This conclusion was based
on surmises and conjectures and also in disregard of the relevant
fact that the vehicle was seized by the police after investigation,
only after one month from the date of the accident and the possibility
of the same having been repaired in the meantime could not be
ruled out - Further, the fact that the offending jeep was driven
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rashly and negligently by respondent No.2 when it collided with the
motorcycle of the claimant leading to the accident could be discerned
from the evidence of witnesses and the contents of the charge-sheet
filed by the police, naming respondent No.2 - The key of negligence
on the part of the driver of the offending jeep as set up by the
claimants was required to be decided by the Tribunal on the
touchstone of preponderance of probability and certainly not by
standard of proof beyond reasonable doubt - Further the finding
that motor cycle was found one foot wrong side on the middle of the
road cannot be basis to assume that appellant was driving on the
wrong side of road at the relevant time - Thus, finding of Tribunal
that claimant contributed to occurrence of accident by driving
motorcycle on wrong side of road was wrong and cannot be
sustained.
Motor Vehicles Act, 1988: s.166 - Quantum of compensation
- The Tribunal noted the claim of the claimant-appellant that he
was getting Rs.1500/- per month towards his salary and Rs.600/-
per month towards food allowance from employer - The fact that
the claimant had possessed heavy transport motor vehicle driving
licence has not been doubted - The driving licence on record being
valid for a limited period, cannot be the basis to belie the claim of
the claimant duly supported by employer, that the claimant was
employed by him on his new truck - Besides the said income, the
claimant claimed to have earning of Rs.1000/- per month from
farming fields - The Tribunal, however, pegged the loss of monthly
income to the claimant at Rs.520/- per month while computing the
compensation amount on the finding that there was no convincing
evidence about complete non-employability of the claimant - Further,
no provision was made by the Tribunal towards future prospects -
The Tribunal, therefore, should have computed the loss of income
on that basis - Additionally, the claimant because of amputation of
his right leg would be forced to permanently use prosthetic leg during
his life time - No provision was made by the Tribunal in that regard
- On these heads, the claimant is certainly entitled for enhanced
compensation - Taking the loss of monthly income due to permanent
disability of 40%, the appellant is held entitled to Rs.2,25,792/-
plus 40% future prospects - Besides, the amount quantified by the
Tribunal towards the heads for medical treatment after the accident,
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motorcycle repair, mental and physical problem the appellant is
additionally held entitled to medical expenses for procurement of a
prosthetic leg, quantified at Rs.25,000/- .
Motor Vehicles Act, 1988: s.166 - Liability of insurer to pay
the compensation amount - Insurance company denied liability on
the ground that no payment was received by the company towards
the insurance premium as the cover note purportedly taken for the
jeep in question was obtained from the then Development Officer,
who was later on sacked by Insurance Company and, therefore,
same was fraudulent - Held: Insurance company has been able to
show that no insurance policy was issued in respect of the offending
jeep - However, the claim of the driver and the owner of the
offending jeep to the extent that they possessed a cover note issued
by the then Development Officer of the Insurance Company is
accepted coupled with the fact that the Cover Note was issued by
the then Development Officer at a point of time when he was still
working with Insurance Company - It must follow that the then
Development Officer was acting on behalf of the Insurance
Company, even though stricto sensu the Insurance Company may
not be liable to pay any compensation as no insurance policy was
issued in respect of the offending vehicle, much less a valid insurance
policy - Therefore, to do substantial justice, principle of "pay and
recover" is invoked - Doctrines/Principles - Principle of "pay and
recover".
Allowing the appeals, the Court
HELD: 1. The Tribunal did not accept the version of PW-1,
PW-2 and PW-4 about the involvement of Jeep No.RST-4701,
but did not discard their version in toto. The evidence of these
witnesses to the extent they have consistently stated that when
the appellant was riding on his motorcycle at the relevant time, a
green jeep coming at a high speed hit the motorcycle from back
side, as a result of which the appellant fell down and suffered
severe injuries was not doubted. Besides mentioning the
description of the offending vehicle as a "jeep" they have also
spoken about its colour (green) and that it was displaying the
Congress Party flags and banners on the side of the jeep. In other
words, their version limited to having noted the jeep number,
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was not accepted. Besides, the Tribunal relied upon the evidence
of respondent No.2 (DW-1) and DW-2 who had stated that the
jeep was deployed in the election campaign of Sarpanch and thus
denied the involvement of the vehicle in the accident in question.
Nevertheless, the Tribunal then adverted to the FIR and the
charge-sheet filed in respect of the accident naming respondent
No.2 as accused. The Tribunal placed reliance upon the copy of
challan copy of FIR Site Map, Jeep Seizure Report, X-Ray and
Injury Report to opine that these police records gathered during
the investigation of the crime not only confirmed that an accident
had occurred but also indicated the involvement of the offending
Jeep which was driven by respondent No.2 at the relevant time.
The Tribunal went on to conclude that there was no reason to
disagree with the opinion of the Investigating Agency in that
behalf. On the basis of the entirety of the evidence, the Tribunal
had held that Jeep which was driven by respondent No.2 at the
relevant time was involved in the accident in question, causing
severe injuries to the appellant. The reasons which weighed
with the High Court for reversing the finding of fact recorded by
the Tribunal upon holistic analysis of the entire evidence, about
the involvement of Jeep in the accident, cannot be countenanced.
Jeep was driven rashly and negligently by respondent No.2 when
it collided with the motorcycle of the appellant leading to the
accident. This can be discerned from the evidence of witnesses
and the contents of the charge-sheet filed by the police, naming
respondent No.2. Considering the entirety of the pleadings,
evidence and circumstances on record and in particular the finding
recorded by the Tribunal on the factum of negligence of the
respondent No.2, the driver of the offending jeep, the High Court
committed manifest error in taking a contrary view which is an
error apparent on the face of record and manifestly wrong. [Paras
14, 20, 21] [300-E-H; 307-B-C, F-H; 308-A-B]
Dulcina Fernandes and Ors. v. Joaquim Xavier Cruz
and Anr. (2013) 10 SCC 646 : [2013] 10 SCR 480;
United India Insurance Co. Ltd. v. Shila Datta (2011)
10 SCC 509 : [2011] 14 SCR 763 - relied on.
Minu B Mehta & Anr. v. Balakrishna Ramachandra
Nayan & Anr. (1977) 2 SCC 441 : [1977] 2 SCR 886;
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Oriental Insurance Co. Ltd. v. Meena Variyal (2007) 5
SCC 428 : [2007] 4 SCR 641; Surender Kumar Arora
& Anr. v. Dr. Manoj Bisla & Ors. (2012) 4 SCC 552 -
held inapplicable.
Kaushnuma Begum & Ors. v. The New India Assurance
Co. Ltd. and Ors. (2001) 2 SCC 9 : [2001] 1 SCR 8;
Charan Lal Sahu v. Union of India (1990) 1 SCC 613 :
[1989] 2 Suppl. SCR 597; Union Carbide Corpn. v.
Union of India (1991) 4 SCC 584 : [1991] 1 Suppl.
SCR 251; Gujarat SRTC v. Ramanbhai Prabhatbhai
(1987) 3 SCC 234 : [1987] 3 SCR 404 - referred to.
Rylands v. Fletcher (1861-73) All ER Rep 1 - referred
to.
2. There is substance in the criticism of the appellant that
the spot where the motor vehicle was found lying after the accident
cannot be the basis to assume that it was driven in or around that
spot at the relevant time. It can be safely inferred that after the
accident of this nature in which the appellant suffered severe
injuries necessitating amputation of his right leg above the knee
level, the motorcycle would be pushed forward after the collision
and being hit by a high speeding jeep. Neither the Tribunal nor
the High Court has found that the spot noted in the site map, one
foot wrong side on the middle of the road was the spot where the
accident actually occurred. However, the finding is that as per
the site map, the motorcycle was found lying at that spot. That
cannot be the basis to assume that the appellant was driving the
motorcycle on the wrong side of the road at the relevant time.
Further, the respondents did not produce any contra evidence to
indicate that the motorcycle was being driven on the wrong side
of the road at the time when the offending vehicle dashed it. Thus,
there is no evidence to answer the issue of contributory
negligence against the appellant. [Paras 23, 24] [311-A-E, F-G]
3. The appellant because of amputation of his right leg would
be forced to permanently use prosthetic leg during his life time.
No provision has been made by the Tribunal in that regard. On
these heads, the appellant is certainly entitled for enhanced
compensation. [Para 25] [312-C-D]
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4. Respondents no.2 and 3 had relied on a Cover Note which
according to Insurance Company was fraudulently obtained from
the then Development Officer, who was later on sacked by
Insurance Company. The possibility of misuse of some cover
notes lying with him could not be ruled out. Insurance Company
has been able to show that no payment was received by the
company towards the insurance premium nor any insurance policy
had been issued in respect of the offending vehicle (jeep).
Pertinently, the Cover Note has been issued by the then
Development Officer at a point of time when he was still working
with Insurance Company. But for the Cover Note issued by the
Development Officer of respondent No.1 Insurance Company at
a point of time when he was still working with respondent No.1,
to do substantial justice, the principle of "pay and recover" is
invoked. [Para 26] [312-D-H; 313-A-C]
National Insurance Co. Ltd. v. Swaran Singh & Ors.
(2004) 3 SCC 297 : [2004] 1 SCR 180; National
Insurance Co. Ltd. v. Pranay Sethi & Ors. AIR 2017
SC 5157 - relied on.
New India Assurance Co. Ltd. v. Rula & Ors (2000) 3
SCC 195 : [2000] 2 SCR 148 - held inapplicable.
Kaushnuma Begum & Ors. v. The New India Assurance
Co. Ltd. and Ors. (2001) 2 SCC 9 : [2001] 1 SCR 8;
Dulcina Fernandes and Ors. v. Joaquim Xavier Cruz
and Anr. (2013) 10 SCC 646 : [2013] 10 SCR 480;
Bimla Devi and Ors. v. Himachal Road Transport
Corporation and Ors. (2009) 13 SCC 530 : [2009] 6
SCR 362; Ravi Kapur v. State of Rajasthan (2012) 9
SCC 284 : [2012] 10 SCR 229; National Insurance Co.
Ltd. v. Pranay Sethi & Ors. AIR 2017 SC 5157; Kishan
Gopal & Anr. v. Lala & Ors. (2014) 1 SCC 244 : [2013]
10 SCR 793; Harbans Lal v. Harvinder Pal 2015 SCC
OnLine P & H 9926; New India Assurance Co. Ltd. v.
Pazhaniammal & Ors. 2011 SCC OnLine Ker 1881;
United India Insurance Co. Ltd. v. Deepak Goel 2014
SCC OnLine Del 362; Manisha v. Umakant Marotrao
Kolhe 2015 SCC OnLine Bom 4613; Mahawati Devi
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v. Branch Manager 2017 SCC OnLine Pat 1145; New
India Assurance Co. Ltd. v. Rula & Ors (2000) 3 SCC
195 : [2000] 2 SCR 148; Oriental Insurance Co. Ltd. v.
Meena Variyal (2007) 5 SCC 428 : [2007] 4 SCR 641;
Minu B Mehta & Anr. v. Balakrishna Ramachandra
Nayan & Anr (1977) 2 SCC 441 : [1977] 2 SCR 886;
Surender Kumar Arora & Anr. v. Dr. Manoj Bisla &
Ors. (2012) 4 SCC 552; N. K. V. Bros. (P) Ltd. v.
M. Karumai Ammal and Ors. (1980) 3 SCC 457 : [1980]
3 SCR 101; Charan Lal Sahu v. Union of India (1990)
1 SCC 613 : [1989] 2 Suppl. SCR 597; Union Carbide
Corpn. v. Union of India (1991) 4 SCC 584 : [1991] 1
Suppl. SCR 251; Gujarat SRTC v. Ramanbhai
Prabhatbhai (1987) 3 SCC 234 : [1987] 3 SCR 404;
National Insurance Co. Ltd. v. Swaran Singh & Ors.
(2004) 3 SCC 297 : [2004] 1 SCR 180 - referred to .
Rylands v. Fletcher (1861-73) All ER Rep 1 - referred
to.
Case Law Reference
[2001] 1 SCR 8
referred to
Para 7
[2013] 10 SCR 480
relied on
Para 7
[2009] 6 SCR 362
referred to
Para 7
[2012] 10 SCR 229
referred to
Para 7
AIR 2017 SC 5157
relied on
Para 7
[2013] 10 SCR 793
referred to
Para 7
[2000] 2 SCR 148
held inapplicable
Para 9
[2007] 4 SCR 641
held inapplicable
Para 9
[1977] 2 SCR 886
held inapplicable
Para 9
(2012) 4 SCC 552
held inapplicable
Para 9
[1980] 3 SCR 101
referred to
Para 18
[2011] 14 SCR 763
relied on
Para 19
[1989] 2 Suppl. SCR 597
referred to
Para 22
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[1991] 1 Suppl. SCR 251
referred to
Para 22
[1987] 3 SCR 404
referred to
Para 22
[2004] 1 SCR 180
relied on
Para 26
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 24992500 of 2018.
From the Judgment and Order dated 05.01.2017 of the High Court
of Judicature for Rajasthan at Jodhpur in S. B. Civil Miscellaneous Appeal
No. 290 of 2001 connected with S. B. Civil Miscellaneous Appeal No.273
of 2001
Rishabh Sancheti, Ms. Padma Priya, Ms. Parijata Bhardwaj,
P. V. Saravana Raja, Dhruv Sharma, Jaiwant Patankar, Advs. for the
Appellant.
K. K. Bhat, Ajay Pal, Ms. Aishwarya Bhati, Jaideep Singh, T. M.
Patra, Advs. for the Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. In the present appeals, the
appellant/claimant has challenged the judgment dated 5th January, 2017
passed by the High Court of Judicature for Rajasthan, Jodhpur Bench,
in SB Civil Miscellaneous Appeal Nos.273 of 2001 and 290 of 2001,
which set aside the award of the Motor Accident Claims Tribunal ['the
Tribunal'] granting compensation to the appellant at the instance of
respondent Nos.2 and 3 (driver and owner of the offending vehicle,
respectively) as also negatived the appellant's prayer for enhancement
of the compensation amount.
2. The appellant alleges that on or about 10th February, 1990,
while he was riding his motorcycle, bearing No. RJ-19-6636, he was hit
by jeep No. RST-4701, owned by respondent No.3 and purportedly being
driven by respondent No.2 at the time, resulting in serious injuries and
ultimately, amputation of his right leg above the knee. The appellant
subsequently filed an application before the Tribunal, Jodhpur, seeking
compensation against the respondents, including the respondent No.1
insurance company. He claimed 40% permanent disability and 100%
functional disability, contending that his primary livelihood of driving heavy
transport vehicles (HTVs) had been curtailed on account of his
amputation, and sought compensation to the tune of Rs. 11,17,000/-.
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Respondent Nos.2 and 3 denied the accident and the involvement of the
jeep in question. The respondent No.1 insurance company argued that
the cover note purportedly taken for the jeep in question was fraudulent.
The cover note had been given unauthorisedly by its then Development
Officer, no premium had been deposited with the company and no policy
had been issued in that regard. Thus, the jeep was not validly insured.
3. In its judgment dated 22nd November, 2000, the Tribunal
discussed the evidence on record in detail. PW2 (Chainaram) and PW4
(Thanaram), who had taken the appellant to the hospital after the accident,
deposed that after the accident, the jeep which caused the accident
stopped ahead and they noted the jeep number in the backlight and further,
they heard the driver's name being called out by the passengers in the
jeep. The Tribunal, however, found that their version of having noted the
jeep number and heard the driver's name seemed to be unnatural. The
Tribunal also discarded the version of the appellant (PW1) about the
details of the vehicle as being not reliable. The Tribunal then noted the
evidence of the defence witnesses, that the jeep in question was nowhere
near the area of the accident. The Tribunal, however, opined that the
accident had been caused by the jeep in question, based on the
investigation report filed by the police mentioning that when they seized
the jeep after one month of the accident, the jeep bore a scratch on the
mudguard of the tyre on the upper footboard on the left side. The Tribunal
also relied on the charge sheet (Exh.1) filed by the police, wherein it has
been stated that the accident was caused by the jeep in question on the
basis of statements made by the appellant and other witnesses (Roopram,
Thanaram and Pratap Singh). The Tribunal held that there was no reason
to disagree with the conclusion of the police. In short, the Tribunal
disbelieved the evidence of the appellant's witnesses, regarding the
commission of accident by the jeep in question, as unreliable but
nevertheless relied upon the investigation report as also the charge sheet
filed by the police in that regard which was supported by two other
witnesses who did not depose before the Tribunal.
4. The Tribunal then referred to the site map of the accident
(Exh.2), to conclude that the appellant was riding his motorcycle one
foot on wrong side from the middle of the road and hence, had contributed
to the accident by being negligent. The Tribunal also accepted the plea
of the respondent No.1 insurance company that the cover note as regard
the offending jeep was fraudulent. The Tribunal accepted the evidence
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of witness DW4, the branch manager of the respondent No.1 insurance
company, that the company did not receive any premium under the relevant
cover note and had not issued any insurance policy in that regard. DW 4
had deposed that the cover note was not deposited with the company.
Further, the concerned development officer, whose signature was on
the cover note, had been removed from the respondent No.1 insurance
company but had in his possession certain cover notes, including the
relevant cover note. DW 4 stated that no insurance policy was issued on
the basis of the said cover note. The Tribunal then found that it was
possible that the Development Officer had backdated the cover note
and had not deposited the money for issuing a policy with the company.
The Tribunal thus held that the vehicle was not insured by the company
and, therefore, the company was not liable.
5. Based on the aforesaid observations, the Tribunal took into
account the injuries caused to the appellant and calculated compensation
of Rs. 1,27,000/- but, owing to the purported negligence of the appellant,
reduced the amount by half and finally awarded a sum of Rs. 63,500/- to
the appellant payable by the respondent Nos. 2 and 3 jointly.
6. The appellant filed an appeal (SB Civil Misc. Appeal No.273 of
2001) for enhancement whereas respondent Nos. 2 and 3 (driver and
owner of the jeep, respectively) challenged the Tribunal's award (by
way of SB Civil Misc. Appeal No.290 of 2001), before the High Court
of Rajasthan, Jodhpur Bench. In its judgment dated 5th January, 2017,
the High Court concluded that the Tribunal's findings were incorrect,
unconvincing and not supported by evidence. Further, the Tribunal's
reasoning, that it did not believe the oral evidence of the parties but had
nevertheless answered the issue in favour of the claimant solely on the
basis of the police report, on the ground that there was no reason not to
believe the conclusion arrived at by the police, was flawed and incorrect.
The High Court noted that the Tribunal was not convinced about the
involvement of the vehicle, despite which it held that involvement was
proved. Furthermore, no finding regarding negligence of the driver of
the jeep had been recorded by the Tribunal rather it found that the
appellant was negligent while riding his motorcycle. The High Court
took the view that mere filing of a charge-sheet, without any finding of
conviction, was insufficient to prove negligence by respondent Nos. 2
and 3. Additionally, the High Court also held that the statement of the
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appellant, wherein he claimed that the bumper of the jeep had hit the
rear of his motorcycle, was contradicted by the investigation report of
the jeep which recorded that it did not bear out that the jeep had been
involved in an accident. The High Court, therefore, was pleased to set
aside the Tribunal's award and allowed the appeal filed by the driver and
owner of the jeep (respondent Nos. 2 and 3 respectively) while dismissing
the appeal filed by the appellant.
7. We have heard Mr. Rishabh Sancheti, learned counsel appearing
for the appellant. He contends that the evidence on record clearly indicates
that the accident was caused due to the rash and negligent driving of
Jeep No. RST-4701 by respondent No.2, which fact has been established
by the eye-witnesses. The respondent No.2 failed to adduce any cogent
evidence in his defence. He also contends that the vehicle in question
was seized by the police but there was a strong possibility that it had
been repaired in the interregnum creating a discrepancy between the
accounts of the witnesses who were present at the time of the accident
and the actual condition of the vehicle at the time of seizure. Further, the
Tribunal's reliance on the site map to infer that the appellant was riding
his motorcycle on the wrong side of the road is erroneous as the site
map merely reflected the position of the motorcycle after the accident
and not at the time of the accident. The High Court, contends the learned
counsel, erroneously decided the matter on the principle of 'beyond
reasonable doubt' whereas proceedings under the Motor Vehicles Act
were required to be decided on the basis of preponderance of probabilities
and thus, the degree of proof required was much less. Additionally, the
proceedings under the Motor Vehicles Act were not adversarial and in
that regard, the evidence on record was sufficient to reach at the
conclusion that respondent No.2's negligence led to the accident and
that the appellant was entitled to full compensation. Finally, the appellant
suffered 40% permanent disability and 100% functional disability and on
that basis, the Tribunal erred by not granting higher compensation to the
appellant. He also contends that the courts below erred in absolving the
respondent No.1 insurance company from its liability. The following cases
were cited by the learned counsel in support of the submissions:
Kaushnuma Begum & Ors. vs. The New India Assurance Co. Ltd.
and Ors.1, Dulcina Fernandes and Ors. vs. Joaquim Xavier Cruz
and Anr.2, Bimla Devi and Ors. vs. Himachal Road Transport
1(2001) 2 SCC 9
2(2013) 10 SCC 646
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Corporation and Ors.3, Ravi Kapur v State of Rajasthan4, National
Insurance Co. Ltd. v Pranay Sethi & Ors.5, Kishan Gopal & Anr. v
Lala & Ors.6, Harbans Lal v Harvinder Pal7, New India Assurance
Co. Ltd. v Pazhaniammal & Ors.8, United India Insurance Co. Ltd.
v Deepak Goel9, Manisha v Umakant Marotrao Kolhe10 and
Mahawati Devi v Branch Manager11.
8. We have also heard Ms. Aishwarya Bhati, learned counsel for
respondent Nos.2 and 3 [in SLP (Civil) No. 28141 of 2017 and respondent
Nos.1 and 2 in SLP (Civil) No.28142 of 2017] the driver and owner,
respectively, of the offending jeep and Mr. K.K. Bhat, learned counsel
appearing for respondent No.1 Insurance Company. They contend that
the appellant did not have a valid driving licence at the time of the accident
and was negligently driving on the wrong side of the road. Even the
driving licence produced by the appellant was for a different class of
vehicles and not for a motorcycle, which he was riding at the time of the
accident. Further, the Tribunal sans examination of the witnesses whose
statement were recorded by the police in furtherance of the FIR filed in
relation to the subject accident could not have based its conclusion merely
due to filing of a charge sheet in that regard and without any information
as to any conviction. Mere filing of the charge sheet by the police is not
enough. That is not a legal evidence, much less sufficient to record a
finding of fact that either that the jeep in question was involved in the
accident or that respondent No.2 was negligently driving the said vehicle.
The High Court has also categorically opined that no finding on the factum
of negligence on the part of respondent No.2 driver of the jeep has been
recorded by the Tribunal; and that the selfsame police report indicates
that the jeep was not involved in the accident in question.
9. On the issue of whether the jeep was validly insured, Ms. Bhati
contends that the respondent No.3 owner took insurance for the jeep
and even paid premium for the same and hence, any objection taken by
3 (2009) 13 SCC 530
4 (2012) 9 SCC 284
5 AIR 2017 SC 5157
6 (2014) 1 SCC 244
7 2015 SCC OnLine P& H 9926
8 2011 SCC OnLine Ker 1881
9 2014 SCC OnLine Del 362
10 2015 SCC OnLine Bom 4613
11 2017 SCC OnLine Pat 1145
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the respondent No.3 insurance company that such insurance was
fraudulently obtained, is untenable. Reliance is placed on the decision in
New India Assurance Co. Ltd. Vs. Rula & Ors12, to buttress this
submission. Mr. Bhat, however, argues that the jeep was not insured
and that the official of the company who had issued the cover note had
fraudulently issued the same. It is possible that the said official had
backdated certain cover notes, for which he had been expelled from the
company. The evidence in that regard is conclusive and there is a finding
by the Tribunal on that count. Mr. Bhat relies upon the decisions in
Oriental Insurance Co. Ltd. v Meena Variyal13, Minu B Mehta &
Anr. v Balakrishna Ramachandra Nayan & Anr.14 and Surender
Kumar Arora & Anr. v Dr. Manoj Bisla & Ors.15.
10. The moot question which arises for our consideration in these
appeals is about the justness of the decision of the High Court in reversing
the finding of fact recorded by the Tribunal on the factum of involvement
of Jeep No.RST-4701 in the accident occurred on 10th February, 1990
at about 8.00-8.30 P.M. and also on the factum of negligence of the
driver of the jeep causing the accident in question. On the first aspect,
the High Court has noted that the Tribunal having discarded the oral
evidence adduced by the appellant (claimant) could not have based its
finding merely on the basis of the FIR and the charge-sheet filed against
the driver of the offending vehicle and also because the mechanical
investigation report (Exh.5) merely indicated that on the left side of the
offending vehicle a scratch mark was noticed on the mudguard of the
left tyre which contradicted the statement of the claimant and the Police
Investigation Report much less showing involvement of the vehicle in
the accident. As regards the second aspect on the factum of negligence,
the High Court noted that the Tribunal did not record any finding about
the negligence of the driver of the jeep and the site map (Exh. 2) would
indicate that the appellant/claimant himself was negligent in driving the
motorcycle in the middle of the road.
11. As the judgment of the High Court has been assailed in the
appeal filed by the appellant (claimant) for enhancement of compensation,
including the finding of the Tribunal in discarding the evidence of PW-1,
PW-2 and PW-4 on the factum of involvement of the offending vehicle
12 (2000) 3 SCC 195
13 (2007) 5 SCC 428
14 (1977) 2 SCC 441
15 (2012) 4 SCC 552
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in the accident and also on the factum of the said vehicle being driven
rashly and negligently by the driver (respondent No.2), we have been
called upon to examine even the correctness of the approach of the
Tribunal. We are conscious of the fact that in an appeal under Article
136 of the Constitution, ordinarily this Court will not engage itself in reappreciation of the evidence as such but can certainly examine the
evidence on record to consider the challenge to the findings recorded by
Tribunal or the High Court, being perverse or replete with error apparent
on the face of the record and being manifestly wrong.
12. From the evidence which has come on record, the finding
recorded by the Tribunal that the appellant while riding his motorcycle
on 10th February, 1990 between 8.00 P.M. and 8.30 P.M., met with an
accident when a jeep being driven rashly and negligently, struck his
motorcycle resulting in falling down and suffering severe injuries on his
right leg, which was required to be amputated from above the knee level
at MGH Hospital, seems to us to be a possible view. That position is
established from the oral evidence of PWs-1, 2 and 4 and the charge
sheet and its accompanying documents filed by the police. Even the
High Court has broadly agreed with this finding recorded by the Tribunal.
13. The debatable issue is about the factum of involvement of
Jeep No.RST-4701 allegedly driven by respondent No.2 and whether it
was driven rashly and negligently as a result of which the accident
occurred.
14. Indeed, the Tribunal did not accept the version of PW-1, PW2 and PW-4 about the involvement of Jeep No.RST-4701, but has not
discarded their version in toto. The evidence of these witnesses to the
extent they have consistently stated that when the appellant was riding
on his motorcycle bearing No.RJ 19-6636 at the relevant time, going to
Basni from Panwara Phanta and when he reached near Siviya Nada, a
green jeep coming at a high speed from Salawas side, hit the motorcycle
from back side, as a result of which the appellant fell down and suffered
severe injuries including to his right leg which was eventually amputated
from above the knee level, has not been doubted. Pertinently, besides
mentioning the description of the offending vehicle as a "jeep" they have
also spoken about its colour (green) and that it was displaying the
Congress Party flags and banners on the side of the jeep. In other words,
their version limited to having noted the jeep number, has not been
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accepted. Besides, the Tribunal relied upon the evidence of respondent
No.2 Chail Singh (DW-1) and Bhanwar Singh (DW-2) who had stated
that the jeep was deployed in the election campaign of Sarpanch of
Somdar Village on the Salawas Road and thus denied the involvement
of the vehicle in the accident in question. Nevertheless, the Tribunal
then adverted to the FIR and the charge-sheet filed in respect of the
accident naming respondent No.2 as accused. The Tribunal placed
reliance upon the copy of challan (Exh.1), copy of FIR (Exh.32), Site
Map (Exhs.3 & 4), Jeep Seizure Report (Exh.5), X-Ray (Exh.6) and
Injury Report (Exh.7), to opine that these police records gathered during
the investigation of the crime not only confirmed that an accident had
occurred but also indicated the involvement of the offending Jeep
No.RST-4701, which was driven by respondent No.2 at the relevant
time. The Tribunal went on to conclude that there was no reason to
disagree with the opinion of the Investigating Agency in that behalf. The
charge-sheet was accompanied by the statements of the appellant and
the witnesses Rooparam, Thanaram and Pratap Singh. On the basis of
the entirety of the evidence, the Tribunal had held that Jeep No.RST4701 which was driven by respondent No.2 at the relevant time was
involved in the accident in question, causing severe injuries to the
appellant.
15. The High Court, however, reversed this finding of fact rendered
by the Tribunal essentially on two counts: First, that the Tribunal having
discarded the oral evidence about the involvement of Jeep No.RST4701 in the accident in question, allegedly driven by respondent No.2,
could not and ought not to have recorded the finding on the relevant
issue against respondent Nos.2 & 3 merely by relying on the documents
forming part of the police charge sheet. Second, the jeep seizure report
(Exh. 5) indicated that only a scratch on the mudguard of the left tyre of
the vehicle was noticed, which contradicted the claim of the appellant
about the involvement of the vehicle.
16. The question is: whether this approach of the High Court can
be sustained in law? While dealing with a similar situation, this Court in
Bimla Devi (supra) noted the defence of the driver and conductor of
the bus which inter alia was to cast a doubt on the police record indicating
that the person standing at the rear side of the bus, suffered head injury
when the bus was being reversed without blowing any horn. This Court
observed that while dealing with the claim petition in terms of Section
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166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not
bound by the pleadings of the parties, its function is to determine the
amount of fair compensation. In paragraphs 11-15, the Court observed
thus:
"11. While dealing with a claim petition in terms of Section
166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu
is not bound by the pleadings of the parties; its function
being to determine the amount of fair compensation in the
event an accident has taken place by reason of negligence
of that driver of a motor vehicle. It is true that occurrence
of an accident having regard to the provisions contained in
Section 166 of the Act is a sine qua non for entertaining a
claim petition but that would not mean that despite evidence
to the effect that death of the claimant's predecessor had
taken place by reason of an accident caused by a motor
vehicle, the same would be ignored only on the basis of a
post-mortem report vis-à-vis the averments made in a claim
petition.
12. The deceased was a constable. Death took place near a police
station. The post-mortem report clearly suggests that the deceased
died of a brain injury. The place of accident is not far from the
police station. It is, therefore, difficult to believe the story of the
driver of the bus that he slept in the bus and in the morning found
a dead body wrapped in a blanket. If the death of the constable
had taken place earlier, it is wholly unlikely that his dead body in a
small town like Dharampur would remain undetected throughout
the night particularly when it was lying at a bus-stand and near a
police station. In such an event, the court can presume that the
police officers themselves should have taken possession of the
dead body.
13. The learned Tribunal, in our opinion, has rightly
proceeded on the basis that apparently there was absolutely
no reason to falsely implicate Respondents 2 and 3. The
claimant was not at the place of occurrence. She, therefore, might
not be aware of the details as to how the accident took place but
the fact that the first information report had been lodged in relation
to an accident could not have been ignored.
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14. Some discrepancies in the evidence of the claimant's witnesses
might have occurred but the core question before the Tribunal
and consequently before the High Court was as to whether the
bus in question was involved in the accident or not. For the purpose
of determining the said issue, the Court was required to apply the
principle underlying the burden of proof in terms of the provisions
of Section 106 of the Evidence Act, 1872 as to whether a dead
body wrapped in a blanket had been found at the spot at such an
early hour, which was required to be proved by Respondents 2
and 3.
15. In a situation of this nature, the Tribunal has rightly
taken a holistic view of the matter. It was necessary to be
borne in mind that strict proof of an accident caused by a
particular bus in a particular manner may not be possible
to be done by the claimants. The claimants were merely to
establish their case on the touchstone of preponderance of
probability. The standard of proof beyond reasonable doubt
could not have been applied. For the said purpose, the High
Court should have taken into consideration the respective
stories set forth by both the parties."
(emphasis supplied)
17. 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 aside. Following the enunciation
in Bimla Devi's case (supra), this Court in Parmeswari (supra) noted
that when filing of the complaint was not disputed, the decision of the
Tribunal ought not to have been reversed by the High Court on the ground
that nobody came from the office of the SSP to prove the complaint.
The Court appreciated the testimony of the eye-witnesses in paragraphs
12 & 13 and observed thus:
"12. The other ground on which the High Court dismissed the
case was by way of disbelieving the testimony of Umed Singh,
PW 1. Such disbelief of the High Court is totally conjectural. Umed
Singh is not related to the appellant but as a good citizen, Umed
MANGLA RAM v. THE ORIENTAL INSURANCE
CO. LTD. & ORS. [A. M.