IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

SRI JUSTICE S.K. MISHRA, A.C.J.

Judgment Reserved on: 23.11.2021

Judgment Delivered on: 25.03.2022

Appeal from Order No. 179 OF 2011

Between:

Atul Kumar Bhagat.

…Appellant
and

Vinod Kumar Kholiya and others.

…Respondents

Counsel for the appellant. : Mr. Rajesh Joshi, Advocate.

Counsel for the respondents. : Mr. A.M. Saklani, Advocate for

respondent No. 1 and Mr. Lalit Belwal,
Advocate for respondent No. 2.
Upon hearing the learned Counsel, the Court made
the following

JUDGMENT : (per Sri S.K. Mishra, A.C.J.)

By means of the present appeal, the appellant has

challenged the judgment and award dated 20.04.2011

passed by the learned Motor Accident Claim Tribunal /

Addl. District Judge, Nainital, in M.A.C.P. No. 112 of

2008, dismissing the claim petition filed by the

appellant.

2. The facts of the case, in brief, are that, on

22.04.2008, at about 09:20 a.m., the appellant was

going by his motorcycle to attend to his duties in

Nainital. A vehicle (Tavera No. UA 04D 0345), being

driven rash and negligently by its driver towards

Bhowali, dashed the appellant’s motorcycle near Jokhiya

while overtaking. Due to this accident, the appellant

sustained serious injuries and became unconscious. The

appellant was taken to B.D. Pandey Hospital, Nainital, by

people, who had gathered at the place of accident. After

giving initial treatment, the appellant was referred to Sai

Hospital, Haldwani, due to his serious condition. There,

the appellant’s right hand was operated. The appellant

was also informed that he has to undergo one more

operation in future, which is expected to cost around Rs.

1,00,000/-. The appellant had already incurred

expenses of Rs. 1,00,000/- in his treatment. Due to the

accident, the appellant has become completely

handicapped. The appellant was working in Zoological

Garden, Nainital, as a Computer Operator on contractual

basis and was getting a monthly salary of Rs. 6,000/-.

In addition, the appellant was also earning Rs. 5,000/-

per month from the work of Computer Hardware and

Software. In this way, the appellant was having a total

income of Rs. 11,000/- per month. On the basis of

these facts, the appellant has claimed compensation of

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Rs. 10,00,000/- from the opposite parties, along with

interest at the rate of 9%.

3. Opposite party No. 1 (Sri Vinod Kumar Kholiya),

who is the owner of the offending vehicle, filed his

written statement. In the written statement, it was,

inter alia, stated that the appellant has not given any

description in his claim petition regarding the number or

the insurance of the motorcycle, of which the appellant

claims to be the owner. On this ground, the claim

petition filed by the appellant deserves to be dismissed

being unclear and incomplete. It was further stated that

no accident had taken place involving the vehicle of the

opposite party No. 1 bearing No. UA 04D 0345. The

appellant had not given any written or oral information

to the concerned Police Station in this regard. The

appellant has impleaded opposite party No. 1 as a party

to the claim petition merely to fetch money on the basis

of a concocted story. The vehicle in question is insured

with the National Insurance Company.

4. Opposite party No. 2 (National Insurance Company)

filed its written statement, inter alia, stating that, as per

the information received by the Company, no such

accident had taken place. It was further stated that no

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First Information Report was lodged by the appellant

with regard to the said accident and the whole story of

the appellant is based on false and concocted facts.

Apart from this, the Company did not receive any

information under the Motor Vehicles Act. Hence, the

claim petition filed by the appellant deserves to be

dismissed.

5. Opposite party No. 3 (Sri Hem Singh Adhikari) did

not choose to file any written statement although he was

served sufficiently. Hence, vide order dated 30.08.2010,

the proceedings were directed to be carried ex-parte

insofar as he is concerned.

6. Opposite party No. 4 (Sri Kanchan Kumar Bhagat),

who is the brother of the appellant, filed his written

statement, inter alia, stating that, on 22.04.2008, the

appellant was driving his motorcycle bearing No. UA 04E

2955 and was going to attend to his duties in Nainital at

about 09:20 a.m. When he reached near Jokhiya, a

vehicle (Tavera No. UA 04D 0345), being driven rash

and negligently by its driver towards Bhowali, dashed

the appellant’s motorcycle while overtaking. Due to this

accident, the appellant sustained serious injuries on his

body. It was further stated that his brother, i.e. the

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appellant, was driving his motorcycle very carefully and

at a slow speed on his left side. It was further stated

that, at the time of the accident in question, his

motorcycle was insured with the United India Insurance

Company Ltd. and the brother of the opposite party No.

4, i.e. the appellant herein, was carrying a valid driving

licence.

7. Opposite party No. 5 (United India Insurance

Company Ltd.) also filed its written statement, inter alia,

stating that the accident in question took place on

account of rash and negligent driving by the driver of

the offending vehicle. It was further stated that the

Company was not given any information regarding the

said accident under the provisions of the Motor Vehicles

Act. Hence, the claim petition deserves to be dismissed

so far as opposite party No. 5 is concerned.

8. On such pleadings, the learned Tribunal framed the

following five issues:

(i) Whether, on 22.04.2008 at about 09:20 a.m., the

appellant was going on his motorcycle for attending

to his duties at Zoological Garden, and, when he

reached near Jokhiya, the vehicle going from

Nainital towards Bhowali (Tavera No. UA 04D

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 0345), being driven rashly and negligently by its

driver, dashed the motorcycle of the appellant

while overtaking, due to which the appellant

sustained serious injuries?

(ii) Whether, at the time of the said accident, the

vehicle (Tavera No. UA 04D 0345) was insured with

opposite party No. 2, National Insurance Company

Ltd., and the vehicle was being driven as per the

terms and conditions of the insurance policy?

(iii) Whether, at the time of the accident, the appellant

and the driver of the vehicle (Tavera No. UA 04D

0345) were holding a valid and effective driving

licence?

(iv) Whether the claim petition is bad for non-joinder of

the alleged owner of the motorcycle and its

insurance company?

(v) Whether the appellant is entitled to receive any

compensation? If yes, how much and from whom?

9. As far as Issue No. 1 is concerned, the learned

Tribunal held that the appellant was unable to prove

that, on 22.04.2008, at about 09:20 a.m., when he was

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going by his motorcycle to attend to his duties at

Zoological Garden, the vehicle (Tavera No. UA 04D

0345), being driven rashly and negligently by its driver

from Nainital to Bhowali, dashed his motorcycle near

Jokhiya while overtaking, due to which, he sustained

serious injuries. Hence, Issue No. 1 was decided against

the appellant.

10. As far as Issue No. 2 is concerned, it was held that,

on the date of the alleged accident, the offending vehicle

(Tavera No. UA 04D 0345) was validly insured with the

opposite party No. 2 / National Insurance Company Ltd.

Hence, the said Issue was decided in favour of the

appellant and against opposite party No. 2.

11. As far as Issue No. 3 is concerned, it was held that,

at the time of the alleged accident, the appellant and the

driver of the offending vehicle (Tavera No. UA 04D

0345) were holding a valid driving licence. Hence, the

said Issue was decided in favour of the appellant and the

opposite party No. 3.

12. While deciding Issue No. 4, the Tribunal came to

the conclusion that, as per order dated 13.10.2010

passed in the Amendment Application filed by the

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appellant, the owner of the motorcycle bearing No. UA

04E 2955 and its insurance company have already been

impleaded as opposite party Nos. 4 & 5 respectively in

the claim petition. It was, accordingly, held that this

issue has become infructuous.

13. However, as far as Issue No. 5 is concerned, the

Tribunal came to the conclusion that, as Issue No. 1 with

regard to the occurrence of the accident itself has been

decided against the appellant, the appellant is not

entitled to receive any compensation.

14. The claim petition filed by the appellant was,

accordingly, dismissed. Hence, the present appeal.

15. Heard the learned counsel for the parties and

perused the record.

16. The learned counsel appearing for the appellant

would submit that the Tribunal has examined the

evidence as if it was judging a criminal case. Though it

has not been reflected anywhere in the impugned

judgment that the Tribunal was seeking proof of the

averments made in the claim petition beyond reasonable

doubt, in fact, the discussions contained in the impugned

judgment reveal that the Tribunal was seeking kind of a

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perfect proof of the matter. Learned counsel relied upon

a judgment rendered by the Hon’ble Supreme Court in

the case of Kusum Lata & others vs. Satbir & others,

reported in (2011) 3 SCC 646, wherein the Hon’ble

Supreme Court considered the finding recorded by the

Tribunal and the High Court that the Vehicle bearing No.

HR 34 8010 was not involved in the accident because of

the fact that, in the FIR which was lodged by one Ashok

Kumar, brother of the victim, neither the number of the

vehicle nor the name of the driver was mentioned.

While deciding this matter, the Hon’ble Supreme Court

held that it is well known that in a case relating to motor

accident claims, the claimants are not required to prove

the case as it is required to be done in a criminal trial.

It is appropriate to take note of the exact words used by

the Hon’ble Supreme Court, as contained in paragraphs

9 & 10:

“9. There is no reason why the Tribunal and

the High Court would ignore the otherwise reliable
evidence of Dheeraj Kumar. In fact, no cogent
reason has been assigned either by the Tribunal or
by the High Court for discarding the evidence of
Dheeraj Kumar. The so-called reason that as the
name of Dheeraj Kumar was not mentioned in the
FIR, so it was not possible for Dheeraj Kumar to
see the incident, is not a proper assessment of the
fact-situation in this case. It is well known that in a
case relating to motor accident claims, the
claimants are not required to prove the case as it is
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 required to be done in a criminal trial. The Court
must keep this distinction in mind.
10. Reference in this connection may be
made to the decision of this Court in Bimla Devi
and others v. Himachal Road Transport Corporation
and others [(2009) 13 SCC 530], in which the
relevant observation on this point has been made
and which is very pertinent and is quoted below:-
“In a situation of this nature, the Tribunal
has rightly taken a holistic view of the matter.
It was necessary to be borne in mind that
strict proof of an accident caused by a
particular bus in a particular manner may not
be possible to be done by the claimants. The
claimants were merely to establish their case
on the touchstone of preponderance of
probability. The standard of proof beyond
reasonable doubt could not have been
applied.””
(Emphasis supplied)

17. In the present case also, the learned Tribunal has

very elaborately, and with a surgeon’s precision,

examined the evidence. In such cases, the strict rule of

evidence, as enunciated in the Indian Evidence Act, does

not apply and the courts should proceed on broad

probabilities.

18. In that view of the matter, the order passed by the

learned Tribunal, as far as Issue No. 1 is concerned, is

not sustainable and the Tribunal should re-consider the

same.

19. Accordingly, the appeal is allowed; the findings

recorded by the learned Tribunal on Issue Nos. 1 & 5 are

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hereby set-aside. However, the findings recorded by the

learned Tribunal on Issue Nos. 2, 3 & 4 are left

undisturbed. The matter is remanded back to the

learned Tribunal for re-consideration and for appropriate

orders on Issue Nos. 1 & 5.

20. The parties are directed to appear before the

learned Motor Accident Claim Tribunal / Addl. District

Judge, Nainital, on 9th May, 2022. The Registry is

directed to forthwith return the trial court records, to the

Tribunal along with a certified copy of this judgment.

________________
S.K. MISHRA, A.C.J.

Dt: March 25, 2022

G

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