ARCHIT SAINI AND ANR.versusTHE ORIENTAL INSURANCE COMPANY LTD. AND ORS.

626                      [2018]REPORTS
               SUPREME COURT    1 S.C.R. 626                 [2018] 1 S.C.R.


A                         ARCHIT SAINI AND ANR.
                                         v.
        THE ORIENTAL INSURANCE COMPANY LTD. AND ORS.
                      (Civil Appeal Nos. 7300-7309 of 2016)
B                             FEBRUARY 09, 2018
             [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                       DR. D. Y. CHANDRACHUD, JJ.]
             Motor Vehicles Act, 1988: s.166 – Fatal accident –
      Contributory negligence – Collision of car with the offending vehicle
C     on the busy road causing death of driver and one person and
      injuring two others – Tribunal relied on the evidence of eye-witness
      (PW-7) that the offending vehicle, the Gas Tanker was parked in
      the middle of road without any indicator or parking lights and it
      was a sole negligence on the part of the driver of the Gas Tanker –
D     High Court modified the award on the finding that it was a case of
      contributory negligence and, therefore, the claimants-injured were
      entitled to only 50% of total compensation – Held: High Court did
      not doubt the evidence of PW-7 as being unreliable nor did it discard
      his version that the driver of the car could not spot the parked Gas
      Tanker due to the flash lights of the oncoming traffic from the front
E     side – The site plan did not support the finding that the Gas Tanker
      was not parked in the middle of the road – The fact that PW-7 who
      was standing on the opposite side of the road at a distance of about
      70 feet, could see the Gas Tanker parked on the other side of the
      road would not discredit his version that the car coming from the
F     opposite side could not spot the Gas Tanker due to flash lights of
      the oncoming traffic from the front side – It is not in dispute that the
      road is a busy road – The approach of the High Court in reversing
      the well considered finding recorded by the Tribunal on the material
      fact, which was supported by the evidence on record, cannot be
      countenanced – The appellants would be entitled to the enhanced
G     compensation as determined by the High Court in its entirety without
      any deduction towards contributory negligence.
            Partly allowing the appeals, the Court
            HELD: 1. It is well settled that the nature of proof required
      in cases concerning accident claims is qualitatively different from
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                                        626
  ARCHIT SAINI AND ANR. v. THE ORIENTAL INSURANCE                        627
                   COMPANY LTD.

the one in criminal cases, which must be beyond any reasonable           A
doubts. The Tribunal applied the correct test in the analysis of
the evidence before it. Notably, the High Court has not doubted
the evidence of PW-7 as being unreliable nor has it discarded his
version that the driver of the car could not spot the parked Gas
Tanker due to the flash lights of the oncoming traffic from the
                                                                         B
front side. Further, the Tribunal also adverted to the legal
presumption against the driver of the Gas Tanker of having parked
his vehicle in a negligent manner in the middle of the road. The
Site Plan reinforces the version of PW-7 that the Truck (Gas
Tanker) was parked in the middle of the road but the High Court
opined to the contrary without assigning any reason whatsoever.          C
The Site Plan filed along with the charge-sheet does not support
the finding recorded by the High Court that the Gas Tanker was
not parked in the middle of the road. The fact that PW-7 who was
standing on the opposite side of the road at a distance of about
70 feet, could see the Gas Tanker parked on the other side of
                                                                         D
the road does not discredit his version that the Maruti Car coming
from the opposite side could not spot the Gas Tanker due to
flash lights of the oncoming traffic from the front side. It is not in
dispute that the road is a busy road. In the cross-examination,
neither has any attempt been made to discredit the version of
PW-7 nor has any suggestion been made that no vehicle with               E
flash lights on was coming from the opposite direction of the
parked Gas Tanker at the relevant time. The approach of the
High Court in reversing the well considered finding recorded by
the Tribunal on the material fact, which was supported by the
evidence on record, cannot be countenanced. The appellants
                                                                         F
would be entitled to the enhanced compensation as determined
by the High Court in its entirety without any deduction towards
contributory negligence. The direction given by the High Court
regarding deduction of 50% of the total compensation awarded
to the claimants towards contributory negligence is set aside.
[Paras 8, 9, 10 and 11] [633-G-H; 634-A-G; 635-C-D]                      G
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7300-
7309 of 2016.
      From the Judgment and Order dated 01.02.2016 of the High Court
of Punjab and Haryana at Chandigarh in F. A. O. Nos. 1179, 1180, 1181,
1182, 1183, 1318, 1452, 4596, 4597 and 4598 of 2013.                     H
628             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A            Bimlesh Kumar Singh, Ms. Anjali Sharma, Advs. for the Appellants.
             Ms. Amrreeta Swaarup, Adv. for the Respondents.
             The Judgment of the Court was delivered by
             A. M. KHANWILKAR, J. 1. These appeals take exception to
B     the judgment and order dated 1st February, 2016 passed by the High
      Court of Punjab and Haryana at Chandigarh in F.A.O. Nos.1179, 1180,
      1181, 1182, 1183, 1318, 1452, 4596, 4597 & 4598 of 2013, whereby the
      High Court modified the award passed by the Motor Accident Claims
      Tribunal, Yamuna Nagar, Jagadhari, on the finding that it was a case of
      “contributory negligence” and resultantly held that the claimants – injured
C     were entitled to only 50% of the total compensation awarded to them
      including the enhanced compensation.
            2. The sole question raised in the present appeals is about the
      justness and tenability of the approach of the High Court in reversing the
      finding of fact recorded by the Tribunal on the factum that the motor
D     accident which occurred on 15th December, 2011 at about 10.30 P.M.
      was due to parking of the offending vehicle bearing No.HR-02-AF-
      8590 (Gas Tanker) in the middle of the road in a negligent manner.
             3. In the petition for compensation filed before the Motor Accident
      Claims Tribunal (for short, “the Tribunal”), it was alleged that the accident
E     was caused due to parking of the offending Gas Tanker in the middle of
      the road without any indicator or parking lights. The claimant examined
      the eye-witness Sohan Lal (PW-7) who, in his affidavit, gave an account
      of the cause of accident in the following words:
             “… That on 15.12.2011 at about 10.30 P.M. I along with
F            P.H.G. Ajit Singh was present near Sanjha Chulha Dhaba,
             on the National Highway, (which leads to Jammu) in the area
             of Village Ajijpur, P.S. Sujanpur. At that time all the traffic
             was diverted on the Eastern side of the road, as the Western
             side of road was closed due to construction work. In
             meantime, a Maruti Car No.HR-02-K/0448 came from Jammu
G
             side (Madhopur side) and struck against the back of the Gas
             Tanker as the driver of car could not spot the parked tanker
             due to flash-lights of the oncoming traffic from front side.
             Then we rushed towards the spot of accident, and noticed
             that the said tanker was standing parked in middle of the
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  ARCHIT SAINI AND ANR. v. THE ORIENTAL INSURANCE                               629
        COMPANY LTD. [A. M. KHANWILKAR, J.]

       road, without any indicators or parking lights. Due to the               A
       accident the car was damaged extensively. The driver of the
       Car and a lady sitting by his side, died at the spot. Two
       children, who were on the rear seat of car were also injured.”
                                                      (emphasis supplied)
      4. The said witness was cross-examined by the respondents. The            B
relevant portion of his cross-examination reads thus:
       “…We were standing on Dhaba on duty with our motorcycle.
       The truck was standing just opposite the dhaba on the other
       side of the road. I was able to see the truck at that time. There
       was no fog at that time. There was lights on the dhaba and               C
       the truck was visible to me due to light of dhaba. I was standing
       at the distance about 70 ft. from the truck because there was
       road between me and the truck. I have heard the voice/sound
       caused by the accident only then I noticed at the car struck
       against the truck. I have not seen the car before the accident,          D
       and only seen after the accident. I reached the spot after
       hearing the sound of accident. I cannot tell the speed of the
       car because I have not seen the car. The road is about 88 ft.
       wide i.e. 44 ft. on each side with a divider in between. The
       left portion of the truck was just on the edge of the road
       towards the kucha portion.”                                              E

        5. The respondents had opposed the claim petition and denied
their liability but did not lead any evidence on the relevant issue to dispel
the relevant fact. The Tribunal after analysing the evidence, including
the Site Map (Ext.P-45) produced on record along with charge-sheet
filed against the driver of the Gas Tanker and the arguments of the             F
respondents, answered issue No.1 against the respondents in the following
words:
       “21. Our own Hon’ble High Court in a case captioned Lekhu
       Singh and other Vs. Udey Singh and others, (2007 4 PLR
       507 held that while considering a claim petition, the Tribunal           G
       is required to hold an enquiry and act not as criminal court
       so as to find whether the claimants have established the
       occurrence beyond shadow of any reasonable doubt. In the
       enquiry, if there is prima facie evidence of the occurrence
                                                                                H
630     SUPREME COURT REPORTS                         [2018] 1 S.C.R.


A     there is no reason to disbelieve such evidence. The statements
      coupled with the facts of registration of FIR and trial of the
      accused in a criminal court are sufficient to arrive at a
      conclusion that the accident has taken place. Likewise, in
      Kusum Lata Vs. Satbir, 2011 (2) RCR © 379 (SC) Hon’ble
      Apex Court has held that in a case relating to motor accident
B
      claims, the claimants are not required to rove the case as it is
      required to be done in a criminal trial. The Court must keep
      this distinction in mind. 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
C     establish their case on the touchstone of preponderance of
      probability. The standard of proof beyond reasonable doubt
      could not have been applied.
      22. After considering the submissions made by both the
      parties, I find that PW7 Sohan Lal eye-witness to the
D     occurrence has specifically stated in his affidavit Ex. PW7/A
      tendered in his evidence that on 15.12.2011 at about 20.30
      p.m. he alongwith PHG Ajit Singh was present near Sanjha
      Chulha Dhaba on the National High Way leads to Jummu. All
      the traffic of road was diverted on the eastern side of the
      road on account of closure of road on western side due to
E     construction work. In the meantime a Maruti car bearing
      No.HR-02-K-0448 came from Jammu side and struck against
      the back of Gas Tanker as the driver of the car could not
      spot the parked tanker due to the flash lights of the oncoming
      traffic from front side. Then they rushed towards the spot of
F     accident and noticed that the said tanker was standing parked
      in the middle of the road without any indicators or parking
      lights.
      23. The statement of this witness clearly establishes that this
      was the sole negligence on the part of the driver of the gas
G     tanker especially when the accident was caused on
      15.12.2011 that too at about 10.30 p.m. which is generally
      time of pitch darkness. In this way, the driver of the car cannot
      be held in any way negligent in this accident. Moreover, as
      per Rules 15 of the Road Regulations, 1989 no vehicle is to
      be parked on busy road.
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ARCHIT SAINI AND ANR. v. THE ORIENTAL INSURANCE                         631
      COMPANY LTD. [A. M. KHANWILKAR, J.]

   24. The arguments of learned counsel for respondent that             A
   PW7 Sohan Lal has stated in his cross-examination that there
   was no fog at that time and there were lights on the Dhaba
   and the truck was visible to him due to light of Dhaba and he
   was standing at the distance of 70 feet from the truck being
   road between him and the truck and he noticed at the car
                                                                        B
   when he heard voice/sound caused by the accident so the
   respondent no.1 is not at all negligent in this accident but
   these submissions will not make the car driver to be in any
   way negligent and cannot give clean chit to the driver of the
   gas tanker because there is a difference between the visibility
   of a standing vehicle from a place where the person is standing      C
   and by a person who is coming driving the vehicle because
   due to flash lights of vehicles coming from front side the vehicle
   coming from opposite side cannot generally spot the standing
   vehicle in the road that too in nights time when there is neither
   any indicator or parking lights nor blinking lights nor any
                                                                        D
   other indication given on the back of the stationed vehicle,
   therefore, the driver of the car cannot be held to be in any
   way negligent rather it is the sole negligence on the part of
   the driver of the offending Gas Tanker as held in Ginni Devi
   and others’ case (2008 ACJ 1572), Mohan Lal’s case (2007
   1 ACC 785 (Allahabad). It is not the case of the respondent          E
   that the parking lights of the standing truck were on or there
   were any other indication n the back side of the vehicle
   standing on the road to enable the coming vehicle to see the
   standing truck. The other arguments of learned counsel for
   respondent no.3 that the road was sufficient wide road and
                                                                        F
   that the car driver could have avoided the accident, so the
   driver of the car was himself negligent in causing the accident
   cannot be accepted when it has already been held that the
   accident has been caused due to sole negligence of the driver
   of the offending stationed truck in the busy road. The
   proposition of law laid down in Smt. Harbans Kaur & others’s         G
   case (2010 4 PLR 422 (P&H) and T.M. Chayapathi &
   another’s case (2005 IV ACC 61 (AP) is not disputed at all
   but these authorities are not helpful to the respondents being
   not applicable on the facts and circumstances of the present
   case. Likewise, non-examination of minor children of the age
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632            SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A           of 14 and 9 years who lost their father and mother in the
            accident cannot be held to be in any way detrimental to the
            case of the claimants when eye witness to the occurrence has
            proved the accident having been caused by the negligence of
            respondent no.1/driver of the offending vehicle.
B           25. Moreover, in Girdhari Lal Vs. Radhey Sham and others,
            1993 (2) PLR 109, Sudama Devi and others Vs. Kewal Ram
            and others, 2008 (1) PLR 444 and Pazhaniammal and others’s
            case (2012 ACJ 1370) our own Hon’ble High Court has held
            that ‘it is, prima facie safe to conclude in claim cases that the
            accident has occurred on account of rash or negligent driving
C           of the driver, if the driver is facing the criminal trial on account
            of rash or negligent driving.’
            26. Moreover, the respondent no.1/driver of the offending
            vehicle has not appeared in the witness box to deny the
            accident having been caused by him, therefore, I am inclined
D           to draw an adverse inference against the respondent no.1. In
            this context, I draw support from a judgment of the Hon’ble
            Punjab & Haryana High Court reported as Bhagwanti Devi
            vs. Krishan Kumar Sani and others, 1986 ACJ 331. Moreover,
            the respondent no.1 has also not filed any complaint to higher
E           authorities about his false implication in the criminal case so
            it cannot be accepted that the respondent no.1 has been falsely
            implicated in this case.
            27. In view of above discussion, it is held that the claimants
            have proved that the accident has been caused by respondent
F           no.1 by parking the offending vehicle bearing No. HR-02-
            AF-8590 on the middle of the road in a negligent manner
            wherein Vinod Saini and Smt. Mamta Saini have been died
            and claimants Archit Saini and Gauri Saini have received
            injuries on their person. Sh. Vinod Saini deceased who was
            driving ill fated car on that day cannot be held to be negligent
G           in any way. Accordingly, this issue is decided in favour of
            claimants.”
                                                         (emphasis supplied)
            6. When the matter travelled to the High Court by way of appeal
      for enhancement of compensation, while accepting the claim of the
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  ARCHIT SAINI AND ANR. v. THE ORIENTAL INSURANCE                            633
        COMPANY LTD. [A. M. KHANWILKAR, J.]

claimants-injured for giving additional compensation, the High Court         A
overturned the finding of fact recorded by the Tribunal in relation to
issue No.1 and opined that it was a case of contributory negligence of
the driver of the Maruti Car which met with the accident. The High
Court answered the said issue in its judgment as can be discerned from
paragraphs 14 & 15, which read thus:
                                                                             B
      “14. So far as the issue of contributory negligence is
      concerned, it has come in the testimony of Sohan Lal, PW-7,
      that the tanker/offending vehicle was parked without indicator
      but the same was visible from a distance of 70 ft. Moreover, a
      perusal of site plan Ex.P 45 reveals that the offending vehicle
      was not parked in the middle of the road.                              C

      15. In view of the statement of PW-7 and site plan Ex.P-45, it
      is proved that the tanker/offending vehicle was visible from a
      distance of 70 ft. and not parked in the middle of the road.
      Therefore, in the concerned opinion of this Court, it is a case
      of contributory negligence.”                                           D

       7. In the present appeals, the moot question is whether the High
Court committed manifest error in reversing the well considered decision
of the Tribunal on issue No.1 answered against the respondents, instead
concluding that it was a case of 50% contributory negligence on the part
of the deceased driver of the Maruti Car.                                    E

       8. After having perused the evidence of PW-7, Site Map (Ext.
P-45) and the detailed analysis undertaken by the Tribunal, we have no
hesitation in taking the view that the approach of the High Court in
reversing the conclusion arrived at by the Tribunal on issue No.1 has
been very casual, if not cryptic and perverse. Indeed, the appeal before     F
the High Court is required to be decided on fact and law. That, however,
would not permit the High Court to casually overturn the finding of fact
recorded by the Tribunal. As is evident from the analysis done by the
Tribunal, it is a well considered opinion and a plausible view. The High
Court has not adverted to any specific reason as to why the view taken       G
by the Tribunal was incorrect or not supported by the evidence on record.
It is well settled that the nature of proof required in cases concerning
accident claims is qualitatively different from the one in criminal cases,
which must be beyond any reasonable doubts. The Tribunal applied the
correct test in the analysis of the evidence before it. Notably, the High
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634             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A     Court has not doubted the evidence of PW-7 as being unreliable nor has
      it discarded his version that the driver of the Maruti Car could not spot
      the parked Gas Tanker due to the flash lights of the oncoming traffic
      from the front side. Further, the Tribunal also adverted to the legal
      presumption against the driver of the Gas Tanker of having parked his
      vehicle in a negligent manner in the middle of the road. The Site Plan
B
      (Ext. P-45) reinforces the version of PW-7 that the Truck (Gas Tanker)
      was parked in the middle of the road but the High Court opined to the
      contrary without assigning any reason whatsoever. In our view, the Site
      Plan (Ext. P-45) filed along with the charge-sheet does not support the
      finding recorded by the High Court that the Gas Tanker was not parked
C     in the middle of the road. Notably, the High Court has also not doubted
      the claimant’s plea that the Gas Tanker / offending vehicle was parked
      without any indicator or parking lights. The fact that PW-7 who was
      standing on the opposite side of the road at a distance of about 70 feet,
      could see the Gas Tanker parked on the other side of the road does not
      discredit his version that the Maruti Car coming from the opposite side
D
      could not spot the Gas Tanker due to flash lights of the oncoming traffic
      from the front side. It is not in dispute that the road is a busy road. In the
      cross-examination, neither has any attempt been made to discredit the
      version of PW-7 nor has any suggestion been made that no vehicle with
      flash lights on was coming from the opposite direction of the parked Gas
E     Tanker at the relevant time.
            9. Suffice it to observe that the approach of the High Court in
      reversing the well considered finding recorded by the Tribunal on the
      material fact, which was supported by the evidence on record, cannot
      be countenanced.
F            10. Accordingly, we have no hesitation in setting aside the said
      finding of the High Court. As a result, the appellants would be entitled to
      the enhanced compensation as determined by the High Court in its entirety
      without any deduction towards contributory negligence. In other words,
      we restore the finding of the Tribunal rendered on issue No.1 against the
G     respondents and hold that respondent no.1 negligently parked the Gas
      Tanker/offending vehicle in the middle of the road without any indicator
      or parking lights.
             11. Accordingly, we affirm the enhanced compensation payable
      to the claimants as determined by the High Court in paragraph 13 of the
H     impugned judgment, which reads thus:
  ARCHIT SAINI AND ANR. v. THE ORIENTAL INSURANCE                             635
        COMPANY LTD. [A. M. KHANWILKAR, J.]

       “13. In view of the above, the claimants-injured are held              A
       entitled to the enhanced compensation of RS.2,80,000/-
       [Rs.30,000/- (enhancement towards ‘pain and suffering’) +
       Rs.20,000/- (enhancement towards loss of studies) +
       Rs.10,000/- (enhancement towards special diet) +
       RS.1,90,000/- (enhancement towards ‘loss of love and
                                                                              B
       affection’) + Rs.30,000/- (enhancement towards cremation and
       last rites)] as indicated above, which shall be payable within
       a period of 45 days from the date of receipt of a certified
       copy of this judgment, failing which, the claimants-appellants
       shall also be entitled to interest @ 7.5% per annum, from the
       date of filing the present appeal till its realization.”               C
       We set aside the direction given by the High Court in paragraph
16 of the impugned judgment regarding deduction of 50% of the total
compensation awarded to the claimants towards contributory negligence.
      12. The appeals are allowed in the aforementioned terms with no
order as to costs.                                                            D


Devika Gujral                                       Appeals partly allowed.



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