# SUNITA & ORS v. RAJASTHAN STATE ROAD TRANSPORT CORPORATION & ANR

- **Citation:** [2019] 3 S.C.R. 329
- **Court:** Supreme Court of India
- **Decided:** 2019-02-14
- **Case number:** Civil Appeal No. 1665 of 2019
- **Bench:** A. M. Khanwilkar, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sunita-ors-v-rajasthan-state-road-transport-corporation-anr-33583
- **Pages:** 28

## Headnote

Motor Vehicles Act, 1988 - Fatal accident - Award of
compensation - Victim-Government School teacher riding a
motorcycle, met with a fatal accident, in collision with a bus, rashly
and negligently driven by respondent no.2 and owned by respondent
no.1 - Pillion rider also sustained injuries - Award of compensation
of Rs.48,33,235/- jointly and severally to the appellants and the
parents of the victim, along with interest after deduction of income
tax from the calculated income - High Court set aside the tribunal's
judgment - On appeal, held: High Court reversed the well
considered and exhaustive judgment of the tribunal in a cryptic
manner - Such a hyper-technical and trivial approach of the High
Court cannot be sustained - Tribunal 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 -
Non-examination of the pillion rider, not fatal to appellant's case
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 - Tribunal justified
in placing reliance on the evidence of witnesses, on the contents of
FIR, charge-sheet and site plan which prima facie indicate the
negligence of the bus driver in driving the bus - Thus, the order
passed by the High Court is set aside and the award by the tribunal
is restored.
Motor Vehicle Accident: Standard of proof - Held: 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 cases - There is nothing in the Act to
[2019] 3 S.C.R. 329
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preclude citing of a witness in motor accident claim who has not
been named in the list of witnesses in criminal cases.
Evidence: Best Eye witness - Non-examination of - Effect of
- Held: Approach is not to find fault with non-examination of some
best eye-witness 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.
Plea: New plea - Appellant seeking enhanced compensation
before this Court -Permissibility of - Award of compensation amount
by the tribunal, challenged on the limited ground of deduction of
income tax from the calculated income before the High Court -
Rejection of appeal by the High Court not challenged by the
appellant - On appeal, held: The limited ground is not sustainable
- Appellants cannot be permitted to widen the scope in the instant
appeal, muchless pray for enhanced compensation - Award passed
by the tribunal is restored - Compensation.
Allowing the appeal, the Court
HELD: 1.1 The well-considered and exhaustive judgment
of the tribunal came to be reversed by the High Court, in a cryptic
manner in few pages. The thrust of the reasoning given by the
High Court rests on the unreliability of the witnesses presented
by the appellants: evidence given by 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, R who was the "best"
witness in the matter, was not presented for examination by the
appellants. The High Court also relied on the site map to record
the finding on the factum of negligence of the deceased in causing
the accident which resulted in his death. Such a hyper-technical
and trivial approach of the High Court cannot be sustained in a
case for compensation, in connection with a motor vehicle accident
resulting in the death of a family member. [Para 19, 20] [341-D;
342-E-G]
1.2 In motor accident claim cases, once the foundational
fact, namely, the actual o

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SUNITA & ORS.
v.
RAJASTHAN STATE ROAD TRANSPORT CORPORATION
& ANR.
(Civil Appeal No. 1665 of 2019)
FEBRUARY 14, 2019
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Motor Vehicles Act, 1988 - Fatal accident - Award of
compensation - Victim-Government School teacher riding a
motorcycle, met with a fatal accident, in collision with a bus, rashly
and negligently driven by respondent no.2 and owned by respondent
no.1 - Pillion rider also sustained injuries - Award of compensation
of Rs.48,33,235/- jointly and severally to the appellants and the
parents of the victim, along with interest after deduction of income
tax from the calculated income - High Court set aside the tribunal's
judgment - On appeal, held: High Court reversed the well
considered and exhaustive judgment of the tribunal in a cryptic
manner - Such a hyper-technical and trivial approach of the High
Court cannot be sustained - Tribunal 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 -
Non-examination of the pillion rider, not fatal to appellant's case
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 - Tribunal justified
in placing reliance on the evidence of witnesses, on the contents of
FIR, charge-sheet and site plan which prima facie indicate the
negligence of the bus driver in driving the bus - Thus, the order
passed by the High Court is set aside and the award by the tribunal
is restored.
Motor Vehicle Accident: Standard of proof - Held: 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 cases - There is nothing in the Act to
[2019] 3 S.C.R. 329
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preclude citing of a witness in motor accident claim who has not
been named in the list of witnesses in criminal cases.
Evidence: Best Eye witness - Non-examination of - Effect of
- Held: Approach is not to find fault with non-examination of some
best eye-witness 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.
Plea: New plea - Appellant seeking enhanced compensation
before this Court -Permissibility of - Award of compensation amount
by the tribunal, challenged on the limited ground of deduction of
income tax from the calculated income before the High Court -
Rejection of appeal by the High Court not challenged by the
appellant - On appeal, held: The limited ground is not sustainable
- Appellants cannot be permitted to widen the scope in the instant
appeal, muchless pray for enhanced compensation - Award passed
by the tribunal is restored - Compensation.
Allowing the appeal, the Court
HELD: 1.1 The well-considered and exhaustive judgment
of the tribunal came to be reversed by the High Court, in a cryptic
manner in few pages. The thrust of the reasoning given by the
High Court rests on the unreliability of the witnesses presented
by the appellants: evidence given by 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, R who was the "best"
witness in the matter, was not presented for examination by the
appellants. The High Court also relied on the site map to record
the finding on the factum of negligence of the deceased in causing
the accident which resulted in his death. Such a hyper-technical
and trivial approach of the High Court cannot be sustained in a
case for compensation, in connection with a motor vehicle accident
resulting in the death of a family member. [Para 19, 20] [341-D;
342-E-G]
1.2 In motor accident claim cases, once the foundational
fact, namely, the actual occurrence of the accident, has been
established, then the tribunal's role would be to calculate the
quantum of just compensation if the accident had taken place by
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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. [Para 20]
[348-E-F]
1.3 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 manner. There is
no hesitation in upholding the finding recorded by the tribunal
that there was an accident between the motorcycle driven by the
victim and a bus belonging to respondent No.1-State Road
Transport Corporation, coming from the opposite direction and
being driven rashly and negligently by respondent No.2, which
resulted in the death of S. Clearly, the evidence given by AD-2
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 tribunal's finding on the same,
and instead, deliberated on the reliability of (A.D.2)'s 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. 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. 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 was cross
examined by the respondents but nevertheless reaches a
SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT
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conclusion different from that of the Tribunal, by selectively
overlooking the deficiencies in the respondent's case, without
any proper reasoning. [Para 21, 26, 28, 29] [348-G; 350-E-F;
352-C-F; 353-F-G]
1.4 The inability of the witness-AD 2 to identify the age of
the pillion rider cannot, per se, be a militating factor to discard
the 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 and the subsequent filing of the charge-sheet
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. [Para 30] [353-G-H; 354-A-B]
1.5 The issue of non-examination of the pillion rider, 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. The tribunal was right
in accepting the claim of the appellants even without the
deposition of the pillion rider, 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. [Para 31] [354-C-E]
1.6 Respondent No.2-driver failed to give any statement
indicating that the accident occurred due to any mistake by the
rider of the motorcycle. The tribunal further relied upon the
evidence of AD 2 and also upon the site plan of the accident 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 S who was on the correct side of the road, and
caused his death, whereas, the High Court disregarded the
evidence of A.D. 2. [Para 32] [354-F-G]
1.7 The site plan has been produced in evidence before
the tribunal by appellant No.1 and the record seems to indicate
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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 S
moreso in absence of ocular evidence to prove and explain the
contents of the site plan. [Para 33] [355-A-C]
1.8 The evidence of witness A.D.2 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 the victim. It
was not open to the High Court to discard this evidence.
Additionally, the tribunal had justly placed reliance on the
contents of FIR and charge-sheet which prima facie indicate the
negligence of respondent No.2 in driving the bus. The factum of
negligence of the driver of the offending vehicle is answered
against the respondents. [Para 34] [355-C-E]
Dulcina Fernandes and Ors. v.. Joaquim Xavier Cruz
and Anr. (2013) 10 SCC 646 : [2013] 10 SCR 480;
Mangla Ram v. Oriental Insurance Company Limited
and Ors. (2018) 5 SCC 656 : [2018] 5 SCR 287
- relied on.
1.9 As regards, 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 the limited grievance was about
deduction of income tax from the calculated income. That ground
is unsustainable. The appellants cannot be permitted to widen
the scope in the instant appeal, muchless pray for enhanced
compensation. Instead the Award passed by the tribunal is
restored as it has determined the just compensation amount,
keeping in mind all the relevant parameters including the
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apportionment thereof between the family members of the
deceased. It would be doing complete justice. The impugned
judgment of the High Court is set aside. [Para 35, 36] [355-F-H;
356-A]
National Insurance Company Limited v.. Pranay Sethi
and Ors. (2017) 16 SCC 680 - relied on.
Kusum Lata and Ors. v. Satbir and Ors. (2011) 3 SCC
646 : [2011] 3 SCR 480; Bimla Devi and Ors. v..
Himachal Road Transport Corporation and Ors.
(2009) 13 SCC 530 : [2009] 6 SCR 362; United India
Insurance Company Limited v.. Shila Datta and Ors.
(2011) 10 SCC 509 : [2011] 14 SCR 763; Kartar Singh
v. State of Punjab (1994) 3 SCC 569 : [1994] 2 SCR
375 - referred to.
Case Law Reference
[2011] 3 SCR 480
 referred to
Para 13
[2009] 6 SCR 362
 referred to
Para 13
[2011] 14 SCR 763
 referred to
Para 13
[2013] 10 SCR 480
 relied on
Para 34
[2018] 5 SCR 287
 relied on
Para 34
[1994] 2 SCR 375
 referred to
Para 29
(2017) 16 SCC 680
 relied on
Para 35
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1665
of 2019.
From the Judgment and Order dated 25.07.2018 of the High Court
of Judicature for Rajasthan at Jaipur Bench in S.B. Civil Misc. Appeal
No. 521 of 2017.
Anuj Bhandari, Adv. for the Appellants.
S.K. Bhattacharya, L.K. Paonam, Niraj Bobby Paonam,
Mrs. Tomthinnganbi Koijam, Advs. for the Respondents.
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The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. Leave granted.
2. The captioned appeal assails the decision of the High Court of
Judicature for Rajasthan, Jaipur Bench, dated 25th July, 2018 in S.B.
Civil Miscellaneous Appeal No. 521 of 2017, whereby the appeal filed
by respondent No.1 (The Rajasthan State Road Transport Corporation)
owner of the offending vehicle, was allowed. The High Court was pleased
to set aside the Award passed by the Motor Accident Claims Tribunal,
Sawai Madhopur (for short "the Tribunal") in favour of the
appellants/claimants for the death of their family member, Sitaram and
consequently dismissed the SBCMA No.581/2017 filed by the
appellants for enhancement of the compensation amount granted by the
Tribunal.
3. Briefly stated, on 28th October, 2011 at around 7 A.M., Sitaram
(husband of appellant No.1 and father of appellant Nos.2 and 3,minor
children) was riding a motorcycle, bearing registration number RJ-25
SA 6923, along with a pillion rider, one Rajulal Khateek, when the
motorcycle collided with a bus coming from the opposite direction
bearing registration number RJ-26/P.A. 0042, owned by respondent No.1
and rashly and negligently driven by respondent No.2. The accident
resulted in the death of Sitaram and severe injuries to the pillion rider,
Rajulal Khateek. Thereafter, the appellants and the parents of the
deceased Sitaram filed two separate petitions before the Tribunal
seeking compensation for the death of Sitaram, who was a senior teacher
in a Government school, from the respondents, to the tune of
Rs.2,62,02,408/- and Rs.1,13,42,984/-, respectively.
4. The respondents resisted the said claim petitions. They denied
that the offending bus had caused the accident. They contended that the
accident was caused due to the mistake and negligence on the part of
the deceased Sitaram himself as he was riding on the wrong side of the
road and he did not know how to ride the motorcycle. He did not have a
valid driving licence and was not wearing a helmet at the time of the
accident, which was in violation of traffic rules. The respondents also
doubted the validity of the evidence and witnesses on record.
SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT
CORPORATION & ANR.
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5. The Tribunal in its judgment dated 14th December, 2016,
extensively analysed the evidence on record. It considered the evidence
of the deceased's wife Sunita (appellant No.1 herein), who deposed
about the accident which resulted in Sitaram's death. The father of
Sitaram, Mool Chand Kirad (A.D.3), also deposed about the accident of
the offending bus with the motorcycle causing the death of Sitaram at
the spot of the accident. The Tribunal also considered FIR No.247/2011
(Exh.1) and charge-sheet (Exh.2) filed against respondent No.2 for
offences punishable under Sections 279, 337 and 304A of the Indian
Penal Code ('IPC') and Sections 134/187 of the Motor Vehicles Act
(for short "the Act"). It noted that the respondents had not challenged
the FIR or the charge-sheet before any authority.
6. The Tribunal also examined the deposition of Bhagchand
Khateek (A.D.2), a witness to the incident who deposed that he had
gone to his brother's house at Shivad village, one day prior to the date of
the accident. At the time of the accident, he had gone to relieve himself
and was walking on the left side of the road when he saw the
motorcycle with number RJ 25 SA 6923, which was also on the left side
of the road, being hit by the offending bus bearing registration
No. RJ-26/P.A. 0042, being driven at a high speed coming on to the
wrong side of the road, resulting in the instant death of the rider of the
motorcycle. He further deposed that the name of the driver of the
offending bus was Banwari (respondent No.2). In his
cross-examination, Bhagchand revealed that he did not see Banwari
(respondent No.2) after the accident and further, that there was a pillion
rider on the motorcycle who was a man, but he couldn't identify the
man's age.
7. The respondents challenged the evidence of Bhagchand (A.D.2)
on the ground that his name was not mentioned in the list of witnesses
set out in the charge-sheet (Exh.2) and could not have been near the
spot when the accident occurred. For, he was a resident of Pakhala
village, which was 3 (three) Kilometres away from the alleged accident
spot. Despite these objections, the Tribunal accepted the veracity of
Bhagchand's deposition. It held that not all the eye-witnesses to the
incident needed to be named in the charge-sheet and that the
respondents had failed to ask Bhagchand any question during the cross
examination so as to cast any doubt on the veracity of his statement.
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Further, the respondents had also failed to ask Bhagchand about giving
any statement to the police. Bhagchand had deposed that on the day of
incident, he was at his brother's house in Shivad village, which did not
preclude him from being an eye-witness to the incident.
8. The Tribunal then noted that respondent No.2 driver of the
offending bus, Banwari Lal, had not been examined as a witness by the
respondents. Additionally, it found that the site map of the accident (Exh.3)
showed that the accident had occurred at a turning in the road, and yet
the offending vehicle was driven at a high speed. This aspect was read
with the unchallenged evidence of the witness Bhagchand Khateek
(A.D.2), who inter alia deposed that at the time of the accident, the
offending bus was being driven recklessly at a high speed and also that
the respondents had failed to ask the said witness Bhagchand any
question about the purported negligence of the rider of the motorcycle,
Sitaram. Further, the respondents had failed to show that they had
challenged the filing of the charge-sheet (Exh.2) against respondent No.2
driver of the offending vehicle. Finally, the Tribunal adverted to the
post-mortem report (Exh.4) wherein it was recorded that the deceased
had died due to shock arising from various fractures on his body. The
Tribunal also took into account the notice under Section 134 of the Act
(Exh.7), wherein respondent No.2 had not made any statement that the
accident had occurred due to the negligence of the motorcycle rider. On
a combined reading of the aforesaid evidence, the Tribunal held that
there was no negligence on the part of the deceased Sitaram, while
riding the motorcycle and that he was fatally hit by the bus being driven
recklessly and at a high speed by respondent No.2.
9. The Tribunal also examined the notice under Section 133 of the
Act (Exh.6) in which the Assistant Transport Inspector, Tonk Bus
Depot, stated that respondent No.2 was the driver of the offending bus
bearing registration number RJ-26/P.A. 0042. It then examined the
notice under Section 134 of the Act (Exh.7), wherein respondent No.2
stated that the offending bus bearing registration number RJ-26/P.A.
0042 was being operated by him on the date and place of the accident.
The Tribunal thus concluded that respondent No.2 was under the
employment of respondent No.1 at the time of the accident and was
driving the offending bus which caused the accident.
SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT
CORPORATION & ANR. [A. M. KHANWILKAR, J.]
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10. On the basis of the aforesaid findings and observations, the
Tribunal partly allowed the two claim petitions. After deducting income
tax payable on the income received by Sitaram, the Tribunal awarded
compensation of Rs.48,33,235 (Rupees Forty Eight Lakh Thirty Three
Thousand Two Hundred and Thirty Five only) jointly and severally to
the appellants and the parents of Sitaram, along with interest. The
Tribunal observed that there was evidence on record to show that Sunita
(appellant No.1) wife of the deceased was having estranged relations
with her husband and thus ordered that the compensation be divided in
such a way that the appellants herein would receive Rs.38,33,235
(Rupees Thirty Eight Lakh Thirty Three Thousand Two Hundred and
Thirty Five only) and the remaining amount of Rs.10,00,000 (Rupees
Ten Lakh only) would be given to the parents of the deceased.
11. The appellants, aggrieved by the deduction of income tax from
the calculated income of the deceased, filed S.B. Civil Miscellaneous
Appeal No.581 of 2017 while the respondents filed two appeals viz.
S.B. Civil Miscellaneous Appeal No.521 of 2017 and S.B. Civil
Miscellaneous Appeal No.522 of 2017, before the High Court of
Rajasthan, Jaipur Bench. Vide a common judgment dated 25th July, 2018,
the High Court set aside the Tribunal's judgment in entirety, on the grounds
that non-examination of the pillion rider, Rajulal Khateek, was fatal to
the case of the appellants, that the witness Bhagchand (A.D. 2) was
unreliable and his evidence could not be reckoned and that the site map
of the accident (Exh.3) showed that the deceased Sitaram was riding
his motorcycle on the wrong side of the road at the time when the
accident occurred, thus, proving that it was Sitaram, and not respondent
No.2 (bus driver), who was guilty of negligence. The High Court thus
allowed the two appeals filed by the respondents and set aside the
Tribunal's judgment, and consequently dismissed the appeal filed by the
appellants.
12. We have heard Mr. Anuj Bhandari, learned counsel appearing
for the appellants and Mr. S.K. Bhattacharya, learned counsel
appearing for the respondents. Mr. Bhandari submits that the Motor
Accident Claims are summary proceedings so as to adjudicate the
adequate amount of compensation in case of an accident and that a
claim under the Act has to be decided on the touchstone of
preponderance of probability rather than on the standard of proof
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beyond reasonable doubt which applies in criminal matters. He submits
that evidence of Bhagchand (A.D.2) was justly accepted by the
Tribunal and the High Court discarded the same on specious ground that
he was not cited as a witness in the criminal case registered by the local
police in respect of the subject accident and was unable to tell the age of
the pillion rider. Further, the non-examination of a witness cited in the
charge sheet would not be fatal to the appellant's claim and the entire
claim could not be rejected merely on such ground. Besides, the
statement of the pillion rider Rajulal Khateek, as recorded by the police
under Section 161 of the Criminal Procedure Code ('CrPC'), clearly
stated that the offending bus was being driven in a rash and negligent
manner and on the wrong side of the road and although this witness has
not been examined in these proceedings, his statement nevertheless
remained on the record as part of the final report filed under Section 173
CrPC and hence, that could not be discarded merely for lack of
examination of the said witness.
13. Mr. Bhandari also submits that on the issue of negligence by
the rider of the motorcycle and the said motorcycle being driven on the
wrong side of the road, the High Court came to a diametrically opposite
finding from the Tribunal, merely by reference to the site plan, on the
basis of conjuncture and surmises and in complete disregard of the other
evidence and, in particular, the factual position as set out in the site plan
(Exh.3). He submits that the Tribunal had justly opined that the site plan
indicated that the offending bus was being driven at a high speed and
after hitting the motorcycle, it went further ahead and rammed into an
electricity pole off the road, well past the accident spot. The Tribunal's
judgment was a well-reasoned decision and a plausible view of the
matter. Thus, the High Court committed grave illegality in setting aside
the said decision. He relied upon Kusum Lata and Ors. Vs. Satbir and
Ors.1, Bimla Devi and Ors. Vs. Himachal Road Transport
Corporation and Ors.2, United India Insurance Company Limited
Vs. Shila Datta and Ors.,3 and Dulcina Fernandes and Ors.
Vs. Joaquim Xavier Cruz and Anr. 4, in support of his arguments.
14. Per contra, Mr. S.K. Bhattacharya, learned counsel for the
respondents, argues that the Tribunal's decision was wholly untenable.
SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT
CORPORATION & ANR. [A. M. KHANWILKAR, J.]
1 (2011) 3 SCC 646
2 (2009) 13 SCC 530
3 (2011) 10 SCC 509
4 (2013) 10 SCC 646
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Not only did the appellants failed to examine any independent witness to
the case but also, the testimony of Bhagchand (A.D. 2) was not credible
as neither was his name set out in the list of witnesses nor could he
identify the age of the pillion rider on the motorcycle. However, the
same witness could clearly identify both, the number of the motorcycle
and the number of the offending bus, thus indicative of the fact that the
witness was tutored and not a natural witness. Mr. Bhattacharya
submits that the Tribunal's opinion, that not all witnesses named in the
charge-sheet were required to be presented by the investigating agency
rather, only the spot witnesses were required, was contradictory, since
the pillion rider on the motorcycle, Rajulal Khateek, was mentioned as a
witness in the charge-sheet but the said person was not presented for
examination.
15. Mr. Bhattacharya further argues that the two principles
applicable to the assessment of evidence in matters of reckless driving
and negligence are res ipsa loquitor and preponderance of probability.
That principle casts a burden on the appellants/claimants to show that
the deceased Sitaram was not negligent in riding his motorcycle. The
facts, however, indicate that the accident occurred in the middle of the
road and although the offending bus was being driven in the middle of
the road, the fault lay with the lighter vehicle namely, the motorcycle.
Merely because the bus was being driven fast, it does not follow that the
same was also being driven negligently. The evidence on record lacked
basic requirements to prove the guilt of respondent No.2 driver, let alone
on the preponderance of probability and there was no evidence to
indicate the callousness or negligence of the bus driver. There was no
assessment of contributory negligence on the part of the deceased Sitaram
and the appellants failed to prove any negligence on behalf of the
respondents.
16. Finally, Mr. Bhattacharya submits that the compensation
awarded by the Tribunal to the parents of the deceased Sitaram was
incorrect since there was no evidence on record to show that the
parents were dependent on the deceased or that they were staying with
him. Sitaram was admittedly not a bachelor and was not staying with his
parents. While the parents did have the right to filial consortium,
however, compensation under such head was to be awarded separately
and not on a structured basis.
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17. We have cogitated over the above submissions and have
examined the relevant record. The pivotal question is about the
correctness of the approach of the High Court in setting aside the
findings of fact recorded by the Tribunal. Further, whether the
circumstances emanating from the evidence produced by the parties
justify the conclusion reached by the High Court on the factum of
negligence on the part of the motorcycle rider, the deceased Sitaram, in
causing the accident with the offending bus driven by respondent No.2.
18. Indeed, we are conscious of the scope of an appeal under
Article 136 of the Constitution of India. This Court ordinarily does not
re-examine or re-appreciate the evidence. But it is certainly open to this
Court to interfere if the findings recorded in the judgment under appeal
are found to be manifestly wrong or perverse.
19. We may immediately turn to the manner in which the wellconsidered and exhaustive judgment of the Tribunal running into over 24
pages came to be reversed by the High Court, if we may say so, in a
cryptic manner in 5 pages. The relevant portion of the High Court
judgment under appeal, after recording facts and submissions of the
counsel, reads thus:
"In order to prove Issue No.1, claimants examined AW-2
Bhagchand. The said witness deposed that on 28.10.2011,
while he was returning after answering the call of nature, he
saw that a motorcycle was coming from village Manhapura
side. The Roadsways but came from opposite direction and
struck against the motorcycle. As a result, one person, who
was sitting on the motorcycle died. In his cross-examination,
he deposed that one more person was also sitting on the
motorcycle. However, he could not tell if the said person was
young, old or a child.
 FIR Exhibit-1 was lodged by Kailash Chand with regard
to the accident in question. A perusal of the same reveals that
the motorcycle was being driven by Sita Ram and Raju Lal
Khateek was sitting on the pillion seat. Best eye-witness in
the present case can be said to be Raju Lal Khateek, who
was travelling with the deceased at the time of accident.
However, Raju Lal Khateek has not been examined by the
SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT
CORPORATION & ANR. [A. M. KHANWILKAR, J.]
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claimants before the Tribunal. The name of Bhagchand is not
shown in the list of witnesses as an eye-witness in the
criminal case. In the criminal case, Raju Lal Khateek has
been shown as an eye-witness. A perusal of the site plan
Exhibit-3 reveals that the bus was going on its correct side of
the road, whereas, the motorcycle was coming on the wrong
side of the road, had struck against the bus.
 In the facts and circumstances of the present case, no
reliance can be placed on the statement of AW-2 Bhagchand,
who had been examined by the claimants as an eye-witness
to the accident. The said witness could not even tell in his
cross- examination with regard to the age of the person, who
was sitting on the pillion seat. Thus, the learned Tribunal fell
in error in deciding Issue No.1 in favour of the claimants.
Accordingly, finding of the Tribunal on Issue No.1 is reversed
and the said issue is decided against the claimants."
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 death.
20. 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.
Recently, in Mangla Ram Vs. Oriental Insurance Company Limited
and Ors.5, (to which one of us, Khanwilkar, J. was a party), this Court
has restated the position as to the approach to be adopted in accident
5(2018) 5 SCC 656
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claim cases. In that case, the Court was dealing with a case of an
accident between a motorcycle and a jeep, where the Tribunal had
relied upon the FIR and charge-sheet, as well as the accompanying
statements of the complainant and witnesses, to opine that the police
records confirmed the occurrence of an accident and also the identity of
the offending jeep but the High Court had overturned that finding inter
alia on the ground that the oral evidence supporting such a finding had
been discarded by the Tribunal itself and that reliance solely on the
document forming part of the police record was insufficient to arrive at
such a finding. Disapproving that approach, this Court, after adverting to
multitude of cases under the Act, noted as follows:
"22. 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 Devi6 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 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 paras 11-15, the Court observed thus: (SCC
pp. 533-34)
"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.
SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT
CORPORATION & ANR. [A. M. KHANWILKAR, J.]
6Supra at footnote 2
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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.
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
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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)
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.
23. Following the enunciation in Bimla Devi case, this Court in
Parmeshwari v. Amir Chand7 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 eyewitnesses in paras 12
& 13 and observed thus: (Parmeshwari case, SCC p. 638)
"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 Singh extended his help to the appellant by helping her
to reach the doctor's chamber in order to ensure that an injured
woman gets medical treatment. The evidence of Umed Singh
cannot be disbelieved just because he did not file a complaint
himself. We are constrained to repeat our observation that the
total approach of the High Court, unfortunately, was not
sensitised enough to appreciate the plight of the victim.
13. The other so-called reason in the High Court's order was
that as the claim petition was filed after four months of the
accident, the same is "a device to grab money from the
insurance company". This finding in the absence of any material
is certainly perverse. The High Court appears to be not
cognizant of the principle that in a road accident claim, the
strict principles of proof in a criminal case are not attracted.
..."
SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT
CORPORATION & ANR. [A. M. KHANWILKAR, J.]
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24. It will be useful to advert to the dictum in N.K.V. Bros. (P)
Ltd. v. M. Karumai Ammal8, wherein it was contended by the
vehicle owner that the criminal case in relation to the accident
had ended in acquittal and for which reason the claim under the
Motor Vehicles Act ought to be rejected. This Court negatived
the said argument by observing that the nature of proof required
to establish culpable rashness, punishable under IPC, is more
stringent than negligence sufficient under the law of tort to create
liability. The observation made in para 3 of the judgment would
throw some light as to what should be the approach of the Tribunal
in motor accident cases. The same reads thus: (SCC pp. 458-59)
"3. Road accidents are one of the top killers in our country,
specially when truck and bus drivers operate nocturnally.