Anita Sharma vs The New India Assurance Co. Ltd. on 8 December, 2020


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Supreme Court of India

Anita Sharma vs The New India Assurance Co. Ltd. on 8 December, 2020

Author: Surya Kant

Bench: N.V. Ramana, Surya Kant, Aniruddha Bose

                                                                      REPORTABLE


                                   IN THE SUPREME COURT OF INDIA
                                    CIVIL APPELLATE JURISDICTION


                            CIVIL APPEAL NOS. 4010­4011 of 2020
                 [Arising out of Special Leave Petition (C) Nos. 32011­32012 of
                                              2018]


      Anita Sharma & Ors.                                       ..... Appellant(s)
                                             VERSUS


      The New India Assurance Co. Ltd. & Anr.                ..... Respondent(s)

                                             JUDGMENT

Surya Kant, J:

Leave Granted.

2. These two appeals, which have been heard through video

conferencing, are directed against the judgment dated 23.07.2018

passed by the High Court of Judicature for Rajasthan, Bench at

Jaipur whereby the first appeal preferred by the New India Assurance

Co. Ltd. (Respondent No. 1) against the Motor Accident Claims

Tribunal’s (hereinafter, “Tribunal”) award dated 01.09.2012 was

allowed and the Claim Petition was rejected, whereas the appeal filed
Signature Not Verified

by the appellant­claimants for enhancement of compensation was
Digitally signed by
SATISH KUMAR YADAV
Date: 2020.12.08
17:39:11 IST
Reason:

consequently dismissed.

Page | 1
FACTS:

3. Sandeep Sharma (deceased), was a resident of District Sikar in

Rajasthan. He was travelling in a car bearing registration no. UP 65

AA 7100 from Ghazipur to Varanasi (Uttar Pradesh) on the night of

25.03.2009 along with his friend Sanjeev Kapoor (Respondent No. 2)

and two other occupants. Sanjeev Kapoor, who was also its owner,

was driving the car when at about 10:20PM near village Atroli, a truck

coming from the opposite side struck the car as a result of which all

the occupants suffered injuries. Sandeep along with the other injured­

occupants was rushed to the District Hospital in Ghazipur at around

11:55PM, but was subsequently referred to the Institute of Medical

Sciences and S.S. Hospital, BHU, Varanasi on 26.03.2009 considering

the severity and multiplicity of his injuries. Although he was

discharged on 16.04.2009 and brought back to Rajasthan, it appears

that Sandeep kept experiencing one after another medical

complications, and remained hospitalized at the Jain Hospital in

Jaipur and later the Joshi Nursing Home at Sikar. His injuries

eventually got the better of him and Sandeep Sharma passed away on

10.12.2009.

4. At the time of death, the deceased was aged 34 years and was an

income tax assessee with an Employees Provident Fund (EPF)

account. He was employed in Mumbai at Kelvin Ess Vee Textiles as a

Page | 2
Sales Officer on regular basis. He left behind a widow, two minor

children and a mother; all of whom were dependent on him.

5. Sandeep’s dependents filed a claim petition for Rs 60,94,000

(Rupees sixty lakhs and ninety­four thousand) on 26.08.2010 alleging,

inter alia, that he died as a result of the injuries suffered in the above­

mentioned accident of 25.03.2009, which occurred due to the rash

and negligent driving of Sanjeev Kapoor who was the owner­cum­

driver of the car in which Sandeep was travelling. Sanjeev Kapoor

(hereinafter, “owner­cum­driver”) and the insurer of the car ­ New

India Assurance Co. Ltd. (hereinafter, “insurance company”) were

impleaded as party respondents.

6. The owner­cum­driver in his written statement admitted that the

deceased had suffered multiple injuries in the accident while travelling

in the car with him but he disowned responsibility for the accident by

asserting that it was the truck which was coming from the opposite

side at a very fast speed, and was being driven in a rash and negligent

manner. Since all the four occupants of the car had been injured, they

were unable to note the registration details of the truck which made a

hasty get­away towards Ghazipur.

7. The insurance company in its separate written statement took

the preliminary objection that as per the police investigation and first

Page | 3
information report, the accident was caused by an unknown truck

which hit the car No. UP­65­AA­7100 and, therefore, the claim petition

filed against the owner of the car or its insurer was contrary to law.

The factual averments made in the Claim Petition were denied for

want of knowledge.

8. In reaching its verdict, the Tribunal relied upon the statement of

the eye­witness Ritesh Pandey (AW­3), according to whom Sanjeev

Kapoor was driving the car at a very fast speed when it overtook a

vehicle and collided head­on against the oncoming truck. The

Tribunal, thus, assigned liability for the accident upon the

respondents and partly allowed the Claim Petition with a

compensation of Rs. 16,08,000 (Rupees sixteen lakhs and eight

thousand).

9. Both the insurance company and the appellant­claimants filed

their respective appeals before the High Court. Through judgment

dated 23.07.2018, the High Court set aside the Tribunal’s award and

dismissed the claim petition for the reasons that first, Ritesh Pandey

(AW­3) had failed to report the accident to the jurisdictional police. He

was apparently introduced by the claimants only to seek

compensation. Second, the FIR had been lodged by the owner­cum­

driver, Sanjeev Kapoor, who would not have done so had he been at

fault or driving rashly. Third, the assertion of Ritesh Pandey (AW­3)

Page | 4
that he took the injured to hospital was not proved from the record of

the Government Hospital, Ghazipur which revealed that Sandeep

Sharma was brought to the hospital by Sub­Inspector Sah

Mohammed.

CONTENTIONS:

10. We have heard learned counsel for parties and have perused the

Original Record of the Tribunal and the High Court. The two questions

which fall for determination are whether the accident was caused due

to rash and negligent driving of the car driver—Sanjeev Kapoor and

whether Ritesh Pandey (AW­3) is a reliable witness or not?

ANALYSIS:

11. At the outset, it may be mentioned that some material facts

which have a direct bearing on the fate of this case, have escaped

notice of the High Court. The FIR was not registered by Sanjeev

Kapoor (owner­cum­driver of the car) as assumed by the High Court.

Instead, as a matter of fact, the FIR No. 120/09 (Exh 1) was registered

on the basis of information furnished by one, Pradeep Kumar

Aggarwal, son of Bal Krishan Das Aggarwal – a resident of District

Varanasi. The contents of this report reveal that Sanjeev Kapoor was

travelling in the Wagon R Car No. UP­65­AA­7100 along with three

other occupants. While returning from Ghazipur to Varanasi, a truck

Page | 5
which was being driven rashly and at a fast speed, struck against the

car and then sped away towards Ghazipur. The number of the truck

could not be noticed as it was dark. The car was badly damaged.

Various people gathered at the spot who took out the injured from the

car. It is specifically mentioned that all the injured were taken to the

hospital for treatment where Rahul Singh @ Chotu Singh passed­away

whereas Sandeep Sharma was referred to BHU Varanasi for treatment.

The FIR was lodged on 27.03.2009 and a slightly illegible part thereof

indicates that Sanjeev Kapoor and the informant were known to each

other. The informant himself had not witnessed the accident and

apparently lodged the FIR based on hearsay information.

12. Importantly, the owner­cum­driver though denied responsibility

of the accident through his written statement but chose not to enter

the witness box in his defence. The insurance company, on the other

hand, relied upon the contents of the FIR and the ‘Investigation

Report’ to aver that the accident took place due to rash and negligent

driving of the truck driver alone. But we find that the ‘investigation

report’ (Exh. 2) dated 05.05.2009 merely recites that the registration

number of the offending truck could not be ascertained despite best

efforts.

13. At this juncture, we may refer to the statement of Ritesh Pandey

(AW­3). This witness is a resident of Ghazipur in Uttar Pradesh. He is

Page | 6
neither related to the deceased nor was he remotely connected to the

family of the deceased. He hailed from a different State and lived in a

faraway place. There is nothing to suggest that the witness had any

business dealings with the deceased or his family. He has deposed

that he was travelling in his own car on the date of the incident on the

same route when the owner­cum­driver of the Wagon R car carelessly

overtook him at a very high speed. He has further deposed that a

truck coming from the opposite side collided with the car. Various

persons gathered at the place of accident and four persons trapped

inside the car were taken out, three of whom were unconscious and

the fourth was its driver ­ Sanjeev Kapoor. The witness has further

deposed that he took all the four injured persons to the District

Hospital, Ghazipur where some of them were referred to Institute of

Medical Sciences and S.S. Hospital, BHU, Varanasi.

14. Most importantly, the only question asked to this witness in

cross­examination is whether the truck could be spotted and whether

he was able to note the registration number of the truck. The witness

has candidly admitted that he could not see the registration number of

the truck. No other question was asked to this witness in the cross­

examination. While the Tribunal believed Ritesh Pandey (AW­3) and

accepted the claim petition in part, the High Court, for the reasons

which are already briefly noticed, has disbelieved him on the premise

Page | 7
that the deceased was brought to the hospital by SI Sah Mohammed

and not by Ritesh Pandey (AW­3). The entire case, thus, effectively

hinges upon the trustworthiness of the statement of this witness.

FINDINGS:

15. It is not in dispute that the accident took place near Ghazipur

and that numerous people had assembled at the spot. Some bystander

would obviously have informed the police also. While the contents of

the FIR as well as the statement of Ritesh Pandey (AW­3) leave no

room to doubt that the injured were taken to the Hospital by private

persons (and not by the police), it is quite natural that the police

would also have reached the Government hospital at Ghazipur and,

therefore, it was mentioned that Sandeep Sharma was brought­in by

SI Sah Mohammed.

16. It is commonplace for most people to be hesitant about being

involved in legal proceedings and they therefore do not volunteer to

become witnesses. Hence, it is highly likely that the name of Ritesh

Pandey or other persons who accompanied the injured to the hospital

did not find mention in the medical record. There is nothing on record

to suggest that the police reached the site of the accident or carried

the injured to the hospital. The statement of AW­3, therefore, acquires

significance as, according to him, he brought the injured in his car to

Page | 8
the hospital. Ritesh Pandey (AW­3) acted as a good samaritan and a

responsible citizen, and the High Court ought not to have disbelieved

his testimony based merely on a conjecture. It is necessary to reiterate

the independence and benevolence of AW­3. Without any personal

interest or motive, he assisted both the deceased by taking him to the

hospital and later his family by expending time and effort to depose

before the Tribunal.

17. It is quite natural that such a person who had accompanied the

injured to the hospital for immediate medical aid, could not have

simultaneously gone to the police station to lodge the FIR. The High

Court ought not to have drawn any adverse inference against the

witness for his failure to report the matter to Police. Further, as the

police had themselves reached the hospital upon having received

information about the accident, there was perhaps no occasion for

AW­3 to lodge a report once again to the police at a later stage either.

18. Unfortunately, the approach of the High Court was not sensitive

enough to appreciate the turn of events at the spot, or the appellant­

claimants’ hardship in tracing witnesses and collecting information for

an accident which took place many hundreds of kilometers away in an

altogether different State. Close to the facts of the case in hand, this

Court in Parmeshwari v. Amir Chand1, viewed that:

1

(2011) 11 SCC 635

Page | 9
“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.

xxx

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.”

(emphasis supplied)

19. The failure of the respondents to cross examine the solitary eye­

witness or confront him with their version, despite adequate

opportunity, must lead to an inference of tacit admission on their part.

They did not even suggest the witness that he was siding with the

claimants. The High Court has failed to appreciate the legal effect of

this absence of cross­examination of a crucial witness.

Page | 10

20. The importance of cross­examination has been elucidated on

several occasions by this Court, including by a Constitution Bench in

Kartar Singh v. State of Punjab2, which laid down as follows:

“278. Section 137 of the Evidence Act defines what cross­
examination means and Sections 139 and 145 speak of the mode of
cross­examination with reference to the documents as well as oral
evidence. It is the jurisprudence of law that cross­examination
is an acid­test of the truthfulness of the statement made by a
witness on oath in examination­in­chief, the objects of which
are:

(1) to destroy or weaken the evidentiary value of the witness of his
adversary;

(2) to elicit facts in favour of the cross­examining lawyer’s client from
the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching the
credit of the said witness;

and the questions to be addressed in the course of cross­
examination are to test his veracity; to discover who he is
and what is his position in life; and to shake his credit by
injuring his character.

279. The identity of the witness is necessary in 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 victimised by any false and invented evidence that may
be tendered by the adversary party.”

(emphasis supplied)

21. Relying upon Kartar Singh (supra), in a MACT case this Court

2
(1994) 3 SCC 569

Page | 11
in Sunita v. Rajasthan State Road Transport Corporation 3

considered the effect of non­examination of the pillion rider as a

witness in a claim petition filed by the deceased of the motorcyclist

and held as follows:

“30. 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 Tribunal’s finding on the same, and instead,
deliberated on the reliability of Bhagchand’s (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
Court’s 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
3
(2019) SCC Online SC 195.

Page | 12
granted to the respondents by the Tribunal.

xxx

32. 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 respondent’s case,
without any proper reasoning.”
(emphasis supplied)

22. Equally, we are concerned over the failure of the High Court to

be cognizant of the fact that strict principles of evidence and

standards of proof like in a criminal trial are inapplicable in MACT

claim cases. The standard of proof in such like matters is one of

preponderance of probabilities, rather than beyond reasonable doubt.

One needs to be mindful that the approach and role of Courts while

examining evidence in accident claim cases ought not to be to find

fault with non­examination of some best eye­witnesses, as may

happen in a criminal trial; but, instead should be only to analyze the

material placed on record by the parties to ascertain whether the

claimant’s version is more likely than not true. A somewhat similar

situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz4

wherein this Court reiterated that:

“7. It would hardly need a mention that the plea of negligence on the
part of the first respondent who was driving the pick­up van as set

4
(2013) 10 SCC 646.

Page | 13
up by the claimants was required to be decided by the learned
Tribunal on the touchstone of preponderance of probabilities
and certainly not on the basis of proof beyond reasonable
doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC 530 : (2009) 5
SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] )”

(emphasis supplied)

23. The observation of the High Court that the author of the FIR (as

per its judgment, the owner­cum­driver) had not been examined as a

witness, and hence adverse inference ought to be drawn against the

appellant­claimants, is wholly misconceived and misdirected. Not only

is the owner­cum­driver not the author of the FIR, but instead he is

one of the contesting respondents in the Claim Petition who, along

with insurance company, is an interested party with a pecuniary stake

in the result of the case. If the owner­cum­driver of the car were

setting up a defence plea that the accident was a result of not his but

the truck driver’s carelessness or rashness, then the onus was on him

to step into the witness box and explain as to how the accident had

taken place. The fact that Sanjeev Kapoor chose not to depose in

support of what he has pleaded in his written statement, further

suggests that he was himself at fault. The High Court, therefore, ought

not to have shifted the burden of proof.

24. Further, little reliance can be placed on the contents of the FIR

(Exh.­1) , and it is liable to be discarded for more than one reasons.

Page | 14
First, the author of the FIR, that is, Praveen Kumar Aggarwal does not

claim to have witnessed the accident himself. His version is hearsay

and cannot be relied upon. Second, it appears from the illegible part of

the FIR that the informant had some closeness with the owner­cum­

driver of the car and there is thus a strong possibility that his version

was influenced or at the behest of Sanjeev Kapoor. Third, the FIR was

lodged two days after the accident, on 27.03.2009. The FIR recites

that some of the injured including Sandeep Sharma were referred to

BHU, Varanasi for treatment, even though as per the medical report

this took place only on 26.03.2009, the day after the accident.

Therefore the belated FIR appears to be an afterthought attempt to

absolve Sanjeev Kapoor from his criminal or civil liabilities. Contrarily,

the statement of AW­3 does not suffer from any evil of suspicion and is

worthy of reliance. The Tribunal rightly relied upon his statement and

decided issue No. 1 in favour of the claimants. The reasoning given by

the High Court to disbelieve Ritesh Pandey AW­3, on the other hand,

cannot sustain and is liable to be overturned. We hold accordingly.

25. Adverting to the claimants’ appeal for enhancement of

compensation, we are of the view that no effective argument could be

raised on their behalf as to how the compensation assessed by the

Tribunal was inadequate, except that in view of the authoritative

pronouncement of this Court in National Insurance Co Ltd v.

Page | 15
Pranay Sethi5, the claimants are entitled to an increase of 40%

towards annual dependency on account of ‘future prospects’ given the

undisputed age of the deceased. Their appeal to that extent deserves

to be allowed.

CONCLUSION:

26. In light of the above discussion, the judgment under appeal of

the High Court is set aside and the appellants are held entitled to

compensation as awarded by the Tribunal, besides 40% addition in

the annual income of the deceased towards ‘future prospects’. The

Motor Accident Claims Tribunal, Sikar (Rajasthan) is directed to re­

calculate the compensation amount accordingly. The appellants are

held entitled to interest @ 8.5%, as per the Tribunal’s award, on the

entire amount of compensation. The Tribunal shall re­calculate the

compensation within one month and the insurance company shall

deposit the same within one month thereafter. No order as to costs.

…………………………… J.

(SURYA KANT)

……………………………J.

(ANIRUDDHA BOSE)
NEW DELHI
DATED : 08.12.2020

5
(2017) 16 SCC 680.

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