SUNITA & ORS.versusRAJASTHAN STATE ROAD TRANSPORT CORPORATION & ANR.

                        [2019] 3 S.C.R. 329                              329


                         SUNITA & ORS.                                   A
                                  v.
  RAJASTHAN STATE ROAD TRANSPORT CORPORATION
                    & ANR.
                   (Civil Appeal No. 1665 of 2019)                       B
                       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
                                                                         C
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     D
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
                                                                         E
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    F
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.
                                                                         G
      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
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330            SUPREME COURT REPORTS                      [2019] 3 S.C.R.


A     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
B     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
C     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.
D
            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
E     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
F     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
G     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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 SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                      331
                CORPORATION & ANR.

reason of negligence of the driver of a motor vehicle and, while      A
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]
                                                                      B
[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        C
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         D
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,   E
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      F
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            G
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
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332           SUPREME COURT REPORTS                      [2019] 3 S.C.R.


A     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
B     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
C     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
D     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
E     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]
F
            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
G     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
H     the tribunal by appellant No.1 and the record seems to indicate
 SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                       333
                CORPORATION & ANR.

that the accident occurred in the middle of the road. However,         A
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
                                                                       B
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]
                                                                       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           D
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               E
      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.
                                                                       F
      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          G
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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334            SUPREME COURT REPORTS                       [2019] 3 S.C.R.


A     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
B           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
C           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
D           [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
E
            [2018] 5 SCR 287           relied on              Para 34
            [1994] 2 SCR 375            referred to           Para 29
            (2017) 16 SCC 680          relied on              Para 35

F
            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
G     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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 SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                             335
                CORPORATION & ANR.

      The Judgment of the Court was delivered by                             A
      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
                                                                             B
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                    C
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         D
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           E
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     F
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        G
accident, which was in violation of traffic rules. The respondents also
doubted the validity of the evidence and witnesses on record.



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336            SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A            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
B
      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
C     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
D     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
E     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.
F            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
G     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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 SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                                337
    CORPORATION & ANR. [A. M. KHANWILKAR, J.]

Further, the respondents had also failed to ask Bhagchand about giving          A
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           B
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         C
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          D
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            E
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                F
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.           G
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.


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338             SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A           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
B
      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
C     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.
D     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
E     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
F     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
G     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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    SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                             339
       CORPORATION & ANR. [A. M. KHANWILKAR, J.]

beyond reasonable doubt which applies in criminal matters. He submits           A
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
                                                                                B
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          C
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        D
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      E
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        F
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.
                                                                                G
      14. Per contra, Mr. S.K. Bhattacharya, learned counsel for the
respondents, argues that the Tribunal’s decision was wholly untenable.
1
  (2011) 3 SCC 646
2
  (2009) 13 SCC 530
3
  (2011) 10 SCC 509
4
  (2013) 10 SCC 646                                                             H
340            SUPREME COURT REPORTS                          [2019] 3 S.C.R.


A     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
B
      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
C     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.
D     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
E     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
F     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
G     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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 SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                             341
    CORPORATION & ANR. [A. M. KHANWILKAR, J.]

       17. We have cogitated over the above submissions and have             A
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
                                                                             B
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     C
are found to be manifestly wrong or perverse.
      19. We may immediately turn to the manner in which the well-
considered 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            D
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          E
      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                F
      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               G
      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

                                                                             H
342                SUPREME COURT REPORTS                         [2019] 3 S.C.R.


A               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
B
                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
C               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.”
D             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
E     (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
F     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
G     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
H         (2018) 5 SCC 656
    SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                               343
       CORPORATION & ANR. [A. M. KHANWILKAR, J.]

claim cases. In that case, the Court was dealing with a case of an                A
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
                                                                                  B
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           C
          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        D
          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)                                                             E

              “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           F
              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                 G
              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.
6
    Supra at footnote 2                                                           H
344   SUPREME COURT REPORTS                              [2019] 3 S.C.R.


A     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
B
      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
C     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,
D     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
E     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
F     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
G     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

H
SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                           345
   CORPORATION & ANR. [A. M. KHANWILKAR, J.]

      doubt could not have been applied. For the said purpose,            A
      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          B
   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        C
   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)                 D

      “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        E
      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            F
      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     G
      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.
      …”

                                                                          H
346                SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A               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
B
                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)
C                  “3. Road accidents are one of the top killers in our country,
                   specially when truck and bus drivers operate nocturnally. This
                   proverbial recklessness often persuades the courts, as has been
                   observed by us earlier in other cases, to draw an initial
                   presumption in several cases based on the doctrine of res ipsa
D                  loquitur. Accidents Tribunals must take special care to see that
                   innocent victims do not suffer and drivers and owners do not
                   escape liability merely because of some doubt here or some
                   obscurity there. Save in plain cases, culpability must be inferred
                   from the circumstances where it is fairly reasonable. The court
                   should not succumb to niceties, technicalities and mystic
E                  maybes. We are emphasising this aspect because we are often
                   distressed by transport operators getting away with it thanks
                   to judicial laxity, despite the fact that they do not exercise
                   sufficient disciplinary control over the drivers in the matter of
                   careful driving. The heavy economic impact of culpable driving
F                  of public transport must bring owner and driver to their
                   responsibility to their neighbour. Indeed, the State must seriously
                   consider no-fault liability by legislation. A second aspect which
                   pains us is the inadequacy of the compensation or undue
                   parsimony practised by tribunals. We must remember that
                   judicial tribunals are State organs and Article 41 of the
G                  Constitution lays the jurisprudential foundation for State relief
                   against accidental disablement of citizens. There is no
                   justification for niggardliness in compensation. A third factor
                   which is harrowing is the enormous delay in disposal of accident
      8
          (1980) 3 SCC 457
H
     SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                                 347
        CORPORATION & ANR. [A. M. KHANWILKAR, J.]

              cases resulting in compensation, even if awarded, being                A
              postponed by several years. The States must appoint sufficient
              number of tribunals and the High Courts should insist upon
              quick disposals so that the trauma and tragedy already sustained
              may not be magnified by the injustice of delayed justice. Many
              States are unjustly indifferent in this regard.”
                                                                                     B
          25. In Dulcina Fernandes9, this Court examined similar situation
          where the evidence of claimant’s eyewitness was discarded by
          the Tribunal and that the respondent in that case was acquitted in
          the criminal case concerning the accident. This Court, however,
          opined that it cannot be overlooked that upon investigation of the
          case registered against the respondent, prima facie, materials             C
          showing negligence were found to put him on trial. The Court
          restated the settled principle that the evidence of the claimants
          ought to be examined by the Tribunal on the touchstone of
          preponderance of probability and certainly the standard of proof
          beyond reasonable doubt could not have been applied as noted in            D
          Bimla Devi. In paras 8 & 9 of the reported decision, the dictum in
          United India Insurance Co. Ltd. v. Shila Datta 10, has been
          adverted to as under: (Dulcina Fernandes case, SCC p. 650)
              “8. In United India Insurance Co. Ltd. v. Shila Datta while
              considering the nature of a claim petition under the Motor             E
              Vehicles Act, 1988 a three-Judge Bench of this Court has culled
              out certain propositions of which Propositions (ii), (v) and (vi)
              would be relevant to the facts of the present case and, therefore,
              may be extracted hereinbelow: (SCC p. 518, para 10)
              ‘10. (ii) The rules of the pleadings do not strictly apply as the      F
              claimant is required to make an application in a form prescribed
              under the Act. In fact, there is no pleading where the
              proceedings are suo motu initiated by the Tribunal.
              *                        *                          *
              (v) Though the Tribunal adjudicates on a claim and determines          G
              the compensation, it does not do so as in an adversarial litigation.
              …

9
     (Supra) at footnote 4
10
     (2011) 10 SCC 509
                                                                                     H
348            SUPREME COURT REPORTS                            [2019] 3 S.C.R.


A               (vi) The Tribunal is required to follow such summary procedure
                as it thinks fit. It may choose one or more persons possessing
                special knowledge of and matters relevant to inquiry, to assist
                it in holding the enquiry.’
                9. The following further observation available in para 10 of the
B               Report would require specific note: (Shila Datta case, SCC
                p. 519)
                ‘10. … We have referred to the aforesaid provisions to show
                that an award by the Tribunal cannot be seen as an adversarial
                adjudication between the litigating parties to a dispute, but a
C               statutory determination of compensation on the occurrence of
                an accident, after due enquiry, in accordance with the statute.’”
                In para 10 of Dulcina Fernandes, the Court opined that non-
                examination of witness per se cannot be treated as fatal to the
                claim set up before the Tribunal. In other words, the approach
D               of the Tribunal should be holistic analysis of the entire pleadings
                and evidence by applying the principles of preponderance of
                probability.”
            It is thus well settled that in motor accident claim cases, once the
      foundational fact, namely, the actual occurrence of the accident, has
E     been established, then the Tribunal’s role would be to calculate the
      quantum of just compensation if the accident had taken place by reason
      of negligence of the driver of a motor vehicle and, while doing so, the
      Tribunal would not be strictly bound by the pleadings of the parties.
      Notably, while deciding cases arising out of motor vehicle accidents, the
      standard of proof to be borne in mind must be of preponderance of
F     probability and not the strict standard of proof beyond all reasonable
      doubt which is followed in criminal cases.
             21. In the present case, we find that the Tribunal had followed a
      just approach in the matter of appreciation of the evidence/materials on
      record. Whereas, the High Court adopted a strict interpretation of the
G     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.
            22. Reverting to the factual matrix, the actual occurrence of the
      accident between the motorcycle driven by Sitaram bearing registration
H
 SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                               349
    CORPORATION & ANR. [A. M. KHANWILKAR, J.]

number RJ 25 SA 6923 coming from one side and a bus belonging to               A
respondent No.1 (the Rajasthan State Road Transport Corporation)
bearing registration number RJ-26/P.A. 0042 coming from the opposite
direction, is duly proved. The Tribunal has relied upon the
uncontroverted evidence of witnesses A.D.1 and A.D. 3, and the
documents presented by them, especially FIR No. 247/2011 (Exh. 1)
                                                                               B
and charge-sheet (Exh.2) against one Banwari Lal Bairwa (respondent
No.2), charging him with offences under Sections 279, 337 and 304A of
the IPC and Sections 134/187of the Act, to establish that on 28.10.2011
at around 7 A.M., Sitaram, along with pillion rider Rajulal Khateek, was
riding on a motorcycle bearing number RJ 25 SA 6923 from village
Bapuee to Chaut ka Barwad for Daug, to his sister, when, near Mahapura         C
tri-section, bus number RJ-26/P.A. 0042 belonging to respondent No.1
(the Rajasthan State Road Transport Corporation) coming from the
opposite direction hit the motorcycle from the front, resulting in the death
of Sitaram.
       23. The Tribunal had justly accepted the appellants’ contention         D
that the respondents did not challenge the propriety of the said FIR No.
247/2011 (Exh. 1) and charge-sheet (Exh. 2) before any authority. The
only defence raised by the respondents to this plea was that the said FIR
No. 247/2011 was based on wrong facts and was filed in connivance
between the appellants/complainants and the police, against which the
respondents complained to the in-charge of the police station and the          E
District Superintendent of Police but to no avail. Apart from this bald
assertion, no evidence was produced by the respondents before the
Tribunal to prove this point. The filing of the FIR was followed by the
filing of the charge-sheet against respondent No.2 for offences under
Sections 279, 337 and 304A of the IPC and Sections 134/187 of the Act,         F
which, again, reinforces the allegations in the said FIR insofar as the
occurrence of the accident was concerned and the role of respondent
No.2 in causing such accident. Be that as it may, the High Court has not
even made a mention, let alone record a finding, of any impropriety
against FIR 247/2011 (Exh. 1) or charge-sheet (Exh. 2) or the
conclusion reached by the Tribunal in that regard. Yet, the FIR and the        G
Charge-sheet has been found to be deficient by the High Court.
       24. Before the Tribunal, respondent No.1 has neither denied that
respondent No.2 was in its employment at the time of the accident nor
has it denied that respondent No.2 was driving the offending bus
                                                                               H
350             SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A     no. RJ-26/P.A. 0042 at the time of the accident. The Tribunal has also
      referred to the Post-mortem report (Exh.4) which establishes that Sitaram
      died due to shock arising from various fractures on his body, which,
      undoubtedly, were rendered due to his accident with the offending bus.
      All of the aforesaid evidence remained uncontroverted. While the
      Tribunal has accepted these depositions and the evidence presented in
B
      that regard, the High Court has, surprisingly, not even referred to it or
      even the numerous documents presented by the said witnesses as
      evidence, apart from a passing reference to FIR 247/2011 (Exh.1).
              25. The Tribunal’s reliance upon FIR 247/2011 (Exh. 1) and
      charge-sheet (Exh. 2) also cannot be faulted as these documents
C     indicate the complicity of respondent No.2. The FIR and charge-sheet,
      coupled with the other evidence on record, inarguably establishes the
      occurrence of the fatal accident and also point towards the negligence
      of the respondent No.2 in causing the said accident. Even if the final
      outcome of the criminal proceedings against respondent No.2 is unknown,
D     the same would make no difference atleast for the purposes of deciding
      the claim petition under the Act. This Court in Mangla Ram (supra),
      noted that the nature of proof required to establish culpability under
      criminal law is far higher than the standard required under the law of
      torts to create liability.
E            26. Accordingly, we have no hesitation in upholding the finding
      recorded by the Tribunal that there was an accident on 28-10-2011 at
      around 7AM between the motorcycle driven by Sitaram bearing
      registration number RJ 25 SA 6923 and a bus belonging to respondent
      No.1. (the Rajasthan State Road Transport Corporation) bearing
      registration number RJ-26/P.A. 0042 coming from the opposite direction
F     and being driven rashly and negligently by respondent No.2, which
      resulted in the death of Sitaram.
             27. The next question is whether the purported shortcomings in
      the evidence of Bhagchand Khateek (A.D.2) and the lack of evidence
      of the pillion rider on the motorcycle, Rajulal Khateek, would be fatal to
G     the appellants’ case. As regards the evidence of Bhagchand, the High
      Court found that the deposition of the said witness was unreliable
      because his name was not mentioned in the list of witnesses in the
      criminal proceedings and also because he was unable to tell the age of
      the pillion rider. Besides, the said witness lived in Pakhala village, which
H     was 3 (three) kilometres away from the accident spot and hence, he
 SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                           351
    CORPORATION & ANR. [A. M. KHANWILKAR, J.]

could not have been near the said spot when the accident occurred. The     A
Tribunal had dealt with these objections quite substantially and, in our
opinion, correctly, in its judgment, wherein it records:
      “ In the present case the petitioners have got examined the eye-
      witness A.D.2 Bhag Chand son of Ram Dev. Admittedly the
      name of the witness Bhag Chand is not mentioned in the               B
      list of witnesses in exhibit-2 charge sheet but if the
      interrogation with this witness is perused then the opponent
      in order of not considering this witness as eye-witness, has
      not asked about giving police statement or not having his
      name in the list of witnesses. The witness A.D.2 Bhag Chand
      Khateek, in interrogation on behalf of opponents has accepted        C
      this that he neither knows Banwari nor after the incident he has
      seen Banwari.
      During interrogation the statement of the witness has been that I
      was near the place of incident itself. That time I was returning
      after relieving myself. The argument of the opponents has            D
      been that the witness Bhag Chand is resident of village
      Pakhala whereas the place of incident is at distance of 3
      k.m. therefore, the statement of going to toilet is false.
      Therefore, he should not be considered eye-witness. But
      the witness A.D.2 Bhag Chand Khateek has stated in his               E
      main statement that one day from dated 28.10.2011, he had
      come to his brother’s house at village Shivad. In such a
      Situation, in our humble opinion, the witness being at a
      distance of 3 k.m. from spot of incident, being resident of
      Pakhala village, this cannot be considered that this witness
      would not be considered eye-witness.                                 F

      Whereas there is question of his name not being in the charge-
      sheet as witness, definitely due to this fact, each such witness
      cannot be considered eyewitness who gives little statement about
      incident. But the evidence which the witness A.D.2 Bhag
      Chand Khateek has given on oath, in order to prove that              G
      distrust worthy, the opponents have not done any such
      interrogation from which there is suspicion in the statements
      of witness. The witness Bhag Chand Khateek was not even
      this suggestion that his police statement was not taken or
      the police had not interrogated him. In our humble opinion,          H
352                SUPREME COURT REPORTS                       [2019] 3 S.C.R.


A               in cases like accident occurring suddenly, the persons
                present near the place of incident are eye-witness of the
                incident. But during investigation this is not necessary that
                the investigation agency should name all the eye-witnesses
                as witness in the charge sheet. Therefore, the statement
                of witness A.D.2 Bhag Chand Khateek cannot be
B
                considered distrust worthy that his name in the charge sheet
                is not mentioned as witness.”
                                                           (emphasis supplied)
              28. Clearly, the evidence given by Bhagchand withstood the
C     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
D     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
E     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
F     concerned witness. Once that is done, it will not be open to them to
      complain about any prejudice caused to them. If there was any doubt to
      be cast on the veracity of the witness, the same should have come out in
      cross examination, for which opportunity was granted to the
      respondents by the Tribunal.
G           29. The importance of cross-examining a witness has been
      elucidated by this Court on several occasions, notably in Kartar Singh
      Vs. State of Punjab, 11 where a Five-Judge Bench of this Court
      elaborated:

      11
           (1994) 3 SCC 569
H
 SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                                353
    CORPORATION & ANR. [A. M. KHANWILKAR, J.]

       “278. Section 137 of the Evidence Act defines what                       A
       cross-examination means and Sections 139 and 145 speak of the
       mode of cross-examination with reference to the documents as
       well as oral evidence. It is the jurisprudence of law that
       cross-examination is an acid-test of the truthfulness of the
       statement made by a witness on oath in examination-in-
                                                                                B
       chief, 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 cross- examining lawyer’s
       client from the mouth of the witness of the adversary party;             C
       (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             D
       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 victimized by any false                E
       and invented evidence that may be tendered by the
       adversary party.”
                                                       (emphasis supplied)
       The High Court has not held that the respondents were successful
                                                                                F
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.
       30. The High Court discarded the evidence of Bhagchand (A.D. 2)          G
also because he could not recollect the age of the pillion rider. The
inability of the witness to identify the age of the pillion rider cannot, per
se, be a militating factor to discard his entire version especially since the
presence of the witness at the time and place of the accident has
                                                                                H
354             SUPREME COURT REPORTS                              [2019] 3 S.C.R.


A     remained unshaken and including his deposition regarding the manner of
      occurrence of the accident and identity of the driver of the offending
      vehicle. The filing of FIR No.247/2011 (Exh.1) and the subsequent filing
      of the charge-sheet (Exh.2) corroborate the witnesses’ evidence. The
      view taken by the Tribunal therefore, on the veracity of the evidence of
      A.D. 2, is unexceptionable and there was no reason for the High Court
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      to interfere with the same.
             31. Similarly, the issue of non-examination of the pillion rider, Rajulal
      Khateek, would not be fatal to the case of the appellants. The approach
      in examining the evidence in accident claim cases is not to find fault with
      non examination of some “best” eye witness in the case but to analyse
C     the evidence already on record to ascertain whether that is sufficient to
      answer the matters in issue on the touchstone of preponderance of
      probability. This court, in Dulcina Fernandes (supra), faced a similar
      situation where the evidence of claimant’s eyewitness was discarded by
      the Tribunal and the respondent was acquitted in the criminal case
D     concerning the accident. This Court, however, took the view that the
      material on record was prima facie sufficient to establish that the
      respondent was negligent. In the present case, therefore, the Tribunal
      was right in accepting the claim of the appellants even without the
      deposition of the pillion rider, Rajulal Khateek, since the other evidence
      on record was good enough to prima facie establish the manner in which
E     the accident had occurred and the identity of the parties involved in the
      accident.
             32. On the issue of negligence by the deceased Sitaram in
      causing the accident, the Tribunal has referred to the notice issued
      under Section 134 of the Act (Exh. 7) to the driver of the offending
F     vehicle, respondent No.2. It records that in the said notice, respondent
      No.2 failed to give any statement indicating that the accident occurred
      due to any mistake by the rider of the motorcycle, Sitaram. The Tribunal
      has further relied upon the evidence of Bhagchand (A.D.2) and also
      upon the site plan of the accident (Exh. 3) to reach a conclusion that
G     respondent No.2 recklessly drove the speeding bus on the wrong side of
      the road, into the motorcycle being ridden by Sitaram, who was on the
      correct side of the road, and caused his death. Whereas, the High Court
      has disregarded the evidence of Bhagchand. Further, the site plan
      (Exh. 3) cannot be read in isolation. It will have to be examined in
      conjunction with the other evidence.
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     SUNITA & ORS. v. RAJASTHAN STATE ROAD TRANSPORT                         355
        CORPORATION & ANR. [A. M. KHANWILKAR, J.]

       33. The site plan (Exh. 3) has been produced in evidence before       A
the Tribunal by witness A.D. 1 (appellant No.1 herein) and the record
seems to indicate that the accident occurred in the middle of the road.
However, the exact location of the accident, as marked out in the site
plan, has not been explained muchless proved through a competent
witness by the respondents to substantiate their defence. Besides, the
                                                                             B
concerned police official who prepared the site plan has also not been
examined. While the existence of the site plan may not be in doubt, it is
difficult to accept the theory propounded on the basis of the site plan to
record a finding against the appellants regarding negligence attributable
to deceased Sitaram, moreso in absence of ocular evidence to prove
and explain the contents of the site plan.                                   C
       34. Be it noted that the evidence of witness A.D.2 (Bhagchand)
unequivocally states that the respondent No.2 bus driver was negligent
in driving recklessly at a high speed on the wrong side of the road, thus,
resulting in the accident which caused the death of Sitaram. It was not
open to the High Court to discard this evidence. Additionally, the           D
Tribunal had justly placed reliance on the contents of FIR No.247/2011
(Exh. 1) and charge-sheet (Exh.2) which prima facie indicate the
negligence of respondent No.2 in driving the bus. We once again
remind ourselves of the dictum in Dulcina Fernandes (supra) and
thereafter in Mangla Ram (supra), and answer the factum of
negligence of the driver of the offending vehicle against the                E
respondents.
       35. Reverting to the question of adequacy of compensation amount
determined by the Tribunal, the appellants have not assailed the order of
the High Court rejecting their appeal. Further, in their appeal before the
High Court (SBCMA No.581 of 2017), the limited grievance was about           F
deduction of income tax from the calculated income. That ground is
unsustainable in light of the decision in National Insurance Company
Limited Vs. Pranay Sethi and Ors.12 We cannot permit the appellants
to widen the scope in the present appeal, muchless pray for enhanced
compensation. We are instead inclined to restore the Award passed by         G
the Tribunal as it has determined the just compensation amount, keeping
in mind all the relevant parameters including the apportionment thereof
between the family members of the deceased. Upholding that Award
would be doing complete justice.
12
     (2017) 16 SCC 680
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356                SUPREME COURT REPORTS                     [2019] 3 S.C.R.


A           36. Resultantly, this appeal must succeed. We hold that the
      impugned judgment and order of the High Court deserves to be set aside
      and instead, the Award passed by the Tribunal dated 14th December,
      2016 be restored.
              37. Appeal is allowed in the above terms. No order as to costs.
B

      Nidhi Jain                                                 Appeal allowed.




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