SUNITA & ORS. versus RAJASTHAN STATE ROAD TRANSPORT CORPORATION & ANR.

[2019] 3 S.C.R. 329

SUNITA & ORS.

RAJASTHAN STATE ROAD TRANSPORT CORPORATION& ANR.

(Civil Appeal No. 1665 of 2019)

FEBRUARY 14, 2019

[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Motor Vehicles Act, 1988 – Fatal accident – Award ofcompensation – Victim-Government School teacher riding amotorcycle, met with fatal accident, in collision with bus, rashlyand negligently driven by respondent no.2 and owned by respondentno.1 – Pillion rider also sustained injuries – Award of compensationof Rs.48,33,235/- jointly and severally to the appellants and theparents of the victim, along with interest after deduction of incometax from the calculated income – High Court set aside the tribunal’sjudgment – On appeal, held: High Court reversed the wellconsidered and exhaustive judgment of the tribunal in crypticmanner – Such hyper-technical and trivial approach of the HighCourt cannot be sustained – Tribunal followed just approach inthe matter of appreciation of the evidence/materials on recordwhereas, the High Court adopted strict interpretation of theevidence on the touchstone of proof beyond reasonable doubt –Non-examination of the pillion rider, not fatal to appellant’s casesince the other evidence on record was good enough to prima facieestablish the manner in which the accident had occurred and theidentity of the parties involved in the accident – Tribunal justifiedin placing reliance on the evidence of witnesses, on the contents ofFIR, charge-sheet and site plan which prima facie indicate thenegligence of the bus driver in driving the bus – Thus, the orderpassed by the High Court is set aside and the award by the tribunalis restored.

Motor Vehicle Accident: Standard of proof – Held: Whiledeciding cases arising out of motor vehicle accidents, the standardof proof to be borne in mind must be of preponderance of probabilityand not the strict standard of proof beyond all reasonable doubtwhich is followed in criminal cases – There is nothing in the Act to

Apreclude citing of witness in motor accident claim who has notbeen 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 somebest eye-witness but to analyse the evidence already on record toBascertain whether that is sufficient to answer the matters in issueon the touchstone of preponderance of probability.

Plea: New plea – Appellant seeking enhanced compensationbefore this Court –Permissibility of – Award of compensation amountby the tribunal, challenged on the limited ground of deduction ofCincome tax from the calculated income before the High Court –Rejection of appeal by the High Court not challenged by theappellant – On appeal, held: The limited ground is not sustainable– Appellants cannot be permitted to widen the scope in the instantappeal, muchless pray for enhanced compensation – Award passedby the tribunal is restored – Compensation.D

Allowing the appeal, the Court

HELD: 1.1 The well-considered and exhaustive judgmentof the tribunal came to be reversed by the High Court, in crypticmanner in few pages. The thrust of the reasoning given by theEHigh Court rests on the unreliability of the witnesses presentedby the appellants: evidence given by A.D.2 was unreliable becausehe was not shown as witness in the list of witnesses mentionedin the charge sheet filed by the police and that the said witnesscould not identify the age of the pillion rider, R who was the “best”witness in the matter, was not presented for examination by theFappellants. The High Court also relied on the site map to recordthe finding on the factum of negligence of the deceased in causingthe accident which resulted in his death. Such hyper-technicaland trivial approach of the High Court cannot be sustained in acase for compensation, in connection with motor vehicle accidentGresulting in the death of family member. [Para 19, 20] [341-D;342-E-G]1.2 In motor accident claim cases, once the foundationalfact, namely, the actual occurrence of the accident, has beenestablished, then the tribunal’s role would be to calculate thequantum of just compensation if the accident had taken place byH

reason of negligence of the driver of motor vehicle and, whiledoing so, the tribunal would not be strictly bound by the pleadingsof the parties. Notably, while deciding cases arising out of motorvehicle accidents, the standard of proof to be borne inmind must be of preponderance of probability and not the strictstandard of proof beyond all reasonable doubt. [Para 20][348-E-F]

1.3 The tribunal had followed just approach in the matterof appreciation of the evidence/materials on record. Whereas,the High Court adopted strict interpretation of the evidence onthe touchstone of proof beyond reasonable doubt to record anadverse finding against the appellants and to reverse the wellconsidered judgment of the tribunal in cryptic manner. There isno hesitation in upholding the finding recorded by the tribunalthat there was an accident between the motorcycle driven by thevictim and bus belonging to respondent No.1-State RoadTransport Corporation, coming from the opposite direction andbeing driven rashly and negligently by respondent No.2, whichresulted in the death of S. Clearly, the evidence given by AD-2withstood the respondents’ scrutiny and the respondents wereunable to shake his evidence. In turn, the High Court has failedto take note of the absence of cross examination of this witnessby the respondents, leave alone the tribunal’s finding on the same,and instead, deliberated on the reliability of (A.D.2)’s evidencefrom the viewpoint of him not being named in the list of eyewitnesses in the criminal proceedings, without even mentioningas to why such absence from the list is fatal to the case of theappellants. This approach of the High Court is mystifying. Thereis nothing in the Act to preclude citing of witness in motoraccident claim who has not been named in the list of witnesses inthe criminal case. What is essential is that the opposite partyshould get fair opportunity to cross examine the concernedwitness. Once that is done, it will not be open to them to complainabout any prejudice caused to them. The High Court has notheld that the respondents were successful in challenging thewitnesses’ version of events, despite being given the opportunityto do so. The High Court accepts that the said witness was crossexamined by the respondents but nevertheless reaches

Aconclusion different from that of the Tribunal, by selectivelyoverlooking the deficiencies in the respondent’s case, withoutany 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 ofBthe pillion rider cannot, per se, be militating factor to discardthe entire version especially since the presence of the witness atthe time and place of the accident has remained unshaken andincluding his deposition regarding the manner of occurrence ofthe accident and identity of the driver of the offending vehicle.The filing of FIR and the subsequent filing of the charge-sheetCcorroborate the witnesses’ evidence. The view taken by thetribunal therefore, on the veracity of the evidence of A.D. 2, isunexceptionable and there was no reason for the High Court tointerfere with the same. [Para 30] [353-G-H; 354-A-B]1.5 The issue of non-examination of the pillion rider, wouldDnot be fatal to the case of the appellants. The approach inexamining the evidence in accident claim cases is not to find faultwith non examination of some “best” eye witness in the case butto analyse the evidence already on record to ascertain whetherthat is sufficient to answer the matters in issue on theEtouchstone of preponderance of probability. The tribunal was rightin accepting the claim of the appellants even without thedeposition of the pillion rider, since the other evidence on recordwas good enough to prima facie establish the manner in whichthe accident had occurred and the identity of the parties involvedin the accident. [Para 31] [354-C-E]F

1.6 Respondent No.2-driver failed to give any statementindicating that the accident occurred due to any mistake by therider of the motorcycle. The tribunal further relied upon theevidence of AD 2 and also upon the site plan of the accident toreach conclusion that respondent No.2 recklessly drove theGspeeding bus on the wrong side of the road, into the motorcyclebeing ridden by S who was on the correct side of the road, andcaused his death, whereas, the High Court disregarded theevidence of A.D. 2. [Para 32] [354-F-G]

1.7 The site plan has been produced in evidence beforeHthe tribunal by appellant No.1 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 competentwitness by the respondents to substantiate their defence.Besides, the concerned police official who prepared the site planhas also not been examined. While the existence of the site planmay not be in doubt, it is difficult to accept the theory propoundedon the basis of the site plan to record finding against theappellants regarding negligence attributable to deceased Smoreso in absence of ocular evidence to prove and explain thecontents of the site plan. [Para 33] [355-A-C]

1.8 The evidence of witness A.D.2 unequivocally states thatthe respondent No.2 bus driver was negligent in drivingrecklessly at high speed on the wrong side of the road, thus,resulting in the accident which caused the death of the victim. Itwas not open to the High Court to discard this evidence.Additionally, the tribunal had justly placed reliance on thecontents of FIR and charge-sheet which prima facie indicate thenegligence of respondent No.2 in driving the bus. The factum ofnegligence of the driver of the offending vehicle is answeredagainst the respondents. [Para 34] [355-C-E]

Dulcina Fernandes and Ors. v.. Joaquim Xavier Cruzand Anr. (2013) 10 SCC 646 : [2013] 10 SCR 480;Mangla Ram v. Oriental Insurance Company Limitedand Ors.(2018) 5 SCC 656 : [2018] 5 SCR 287– relied on.

1.9 As regards, adequacy of compensation amountdetermined by the tribunal, the appellants have not assailed theorder of the High Court rejecting their appeal. Further, in theirappeal before the High Court the limited grievance was aboutdeduction of income tax from the calculated income. That groundis unsustainable. The appellants cannot be permitted to widenthe scope in the instant appeal, muchless pray for enhancedcompensation. Instead the Award passed by the tribunal isrestored as it has determined the just compensation amount,keeping in mind all the relevant parameters including the

Aapportionment thereof between the family members of thedeceased. It would be doing complete justice. The impugnedjudgment of the High Court is set aside. [Para 35, 36] [355-F-H;356-A]

National Insurance Company Limited v.. Pranay SethiBand Ors. (2017) 16 SCC 680 – relied on.

Kusum Lata and Ors. v. Satbir and Ors. (2011) 3 SCC646 : [2011] 3 SCR 480;Bimla Devi and Ors. v..Himachal Road Transport Corporation and Ors.(2009) 13 SCC 530 : [2009] 6 SCR 362;United IndiaCInsurance Company Limited v.. Shila Datta and Ors.(2011) 10 SCC 509 : [2011] 14 SCR 763;Kartar Singhv. State of Punjab(1994) 3 SCC 569 : [1994] 2 SCR375 – referred to.

Case Law Reference

FCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1665of 2019.

From the Judgment and Order dated 25.07.2018 of the High Courtof Judicature for Rajasthan at Jaipur Bench in S.B. Civil Misc. AppealNo. 521 of 2017.G

Anuj Bhandari, Adv. for the Appellants.

S.K. Bhattacharya, L.K. Paonam, Niraj Bobby Paonam,Mrs. Tomthinnganbi Koijam, Advs. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1.Leave granted.

2. The captioned appeal assails the decision of the High Court ofJudicature for Rajasthan, Jaipur Bench, dated 25[th] July, 2018 in S.B.Civil Miscellaneous Appeal No. 521 of 2017, whereby the appeal filedby respondent No.1 (The Rajasthan State Road Transport Corporation)owner of the offending vehicle, was allowed. The High Court was pleasedto set aside the Award passed by the Motor Accident Claims Tribunal,Sawai Madhopur (for short “the Tribunal”) in favour of theappellants/claimants for the death of their family member, Sitaram andconsequently dismissed the SBCMA No.581/2017 filed by theappellants for enhancement of the compensation amount granted by theTribunal.

3.Briefly stated, on 28[th] October, 2011 at around 7 A.M., Sitaram(husband of appellant No.1 and father of appellant Nos.2 and 3,minorchildren) was riding motorcycle, bearing registration number RJ-25SA 6923, along with pillion rider, one Rajulal Khateek, when themotorcycle collided with bus coming from the opposite directionbearing registration number RJ-26/P.A. 0042, owned by respondent No.1and rashly and negligently driven by respondent No.2. The accidentresulted in the death of Sitaram and severe injuries to the pillion rider,Rajulal Khateek. Thereafter, the appellants and the parents of thedeceased Sitaram filed two separate petitions before the Tribunalseeking compensation for the death of Sitaram, who was senior teacherin Government school, from the respondents, to the tune ofRs.2,62,02,408/- and Rs.1,13,42,984/-, respectively.

4.The respondents resisted the said claim petitions. They deniedthat the offending bus had caused the accident. They contended that theaccident was caused due to the mistake and negligence on the part ofthe deceased Sitaram himself as he was riding on the wrong side of theroad and he did not know how to ride the motorcycle. He did not have avalid driving licence and was not wearing helmet at the time of theaccident, which was in violation of traffic rules. The respondents alsodoubted the validity of the evidence and witnesses on record.

A5.The Tribunal in its judgment dated 14[th] December, 2016,extensively analysed the evidence on record. It considered the evidenceof the deceased’s wife Sunita (appellant No.1 herein), who deposedabout the accident which resulted in Sitaram’s death. The father ofSitaram, Mool Chand Kirad (A.D.3), also deposed about the accident ofthe offending bus with the motorcycle causing the death of Sitaram atBthe spot of the accident. The Tribunal also considered FIR No.247/2011(Exh.1) and charge-sheet (Exh.2) filed against respondent No.2 foroffences punishable under Sections 279, 337 and 304A of the IndianPenal Code (‘IPC’) and Sections 134/187 of the Motor Vehicles Act(for short “the Act”). It noted that the respondents had not challengedCthe FIR or the charge-sheet before any authority.

6.The Tribunal also examined the deposition of BhagchandKhateek (A.D.2), witness to the incident who deposed that he hadgone to his brother’s house at Shivad village, one day prior to the date ofthe accident. At the time of the accident, he had gone to relieve himselfDand was walking on the left side of the road when he saw themotorcycle with number RJ 25 SA 6923, which was also on the left sideof the road, being hit by the offending bus bearing registrationNo. RJ-26/P.A. 0042, being driven at high speed coming on to thewrong side of the road, resulting in the instant death of the rider of themotorcycle. He further deposed that the name of the driver of theEoffending bus was Banwari (respondent No.2). In hiscross-examination, Bhagchand revealed that he did not see Banwari(respondent No.2) after the accident and further, that there was pillionrider on the motorcycle who was man, but he couldn’t identify theman’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 witnessesset out in the charge-sheet (Exh.2) and could not have been near thespot when the accident occurred. For, he was resident of Pakhalavillage, which was 3 (three) Kilometres away from the alleged accidentGspot. Despite these objections, the Tribunal accepted the veracity ofBhagchand’s deposition. It held that not all the eye-witnesses to theincident needed to be named in the charge-sheet and that therespondents had failed to ask Bhagchand any question during the crossexamination so as to cast any doubt on the veracity of his statement.

Further, the respondents had also failed to ask Bhagchand about givingany statement to the police. Bhagchand had deposed that on the day ofincident, he was at his brother’s house in Shivad village, which did notpreclude him from being an eye-witness to the incident.

8.The Tribunal then noted that respondent No.2 driver of theoffending bus, Banwari Lal, had not been examined as witness by therespondents. Additionally, it found that the site map of the accident (Exh.3)showed that the accident had occurred at turning in the road, and yetthe offending vehicle was driven at high speed. This aspect was readwith the unchallenged evidence of the witness Bhagchand Khateek(A.D.2), who inter alia deposed that at the time of the accident, theoffending bus was being driven recklessly at high speed and also thatthe respondents had failed to ask the said witness Bhagchand anyquestion about the purported negligence of the rider of the motorcycle,Sitaram. Further, the respondents had failed to show that they hadchallenged the filing of the charge-sheet (Exh.2) against respondent No.2driver of the offending vehicle. Finally, the Tribunal adverted to thepost-mortem report (Exh.4) wherein it was recorded that the deceasedhad died due to shock arising from various fractures on his body. TheTribunal also took into account the notice under Section 134 of the Act(Exh.7), wherein respondent No.2 had not made any statement that theaccident had occurred due to the negligence of the motorcycle rider. Ona combined reading of the aforesaid evidence, the Tribunal held thatthere was no negligence on the part of the deceased Sitaram, whileriding the motorcycle and that he was fatally hit by the bus being drivenrecklessly and at high speed by respondent No.2.

9.The Tribunal also examined the notice under Section 133 of theAct (Exh.6) in which the Assistant Transport Inspector, Tonk BusDepot, stated that respondent No.2 was the driver of the offending busbearing registration number RJ-26/P.A. 0042. It then examined thenotice under Section 134 of the Act (Exh.7), wherein respondent No.2stated that the offending bus bearing registration number RJ-26/P.A.0042 was being operated by him on the date and place of the accident.The Tribunal thus concluded that respondent No.2 was under theemployment of respondent No.1 at the time of the accident and wasdriving the offending bus which caused the accident.

A10.On the basis of the aforesaid findings and observations, theTribunal partly allowed the two claim petitions. After deducting incometax payable on the income received by Sitaram, the Tribunal awardedcompensation of Rs.48,33,235 (Rupees Forty Eight Lakh Thirty ThreeThousand Two Hundred and Thirty Five only) jointly and severally tothe appellants and the parents of Sitaram, along with interest. TheBTribunal observed that there was evidence on record to show that Sunita(appellant No.1) wife of the deceased was having estranged relationswith her husband and thus ordered that the compensation be divided insuch way that the appellants herein would receive Rs.38,33,235(Rupees Thirty Eight Lakh Thirty Three Thousand Two Hundred andCThirty Five only) and the remaining amount of Rs.10,00,000 (RupeesTen Lakh only) would be given to the parents of the deceased.

11.The appellants, aggrieved by the deduction of income tax fromthe calculated income of the deceased, filed S.B. Civil MiscellaneousAppeal No.581 of 2017 while the respondents filed two appeals viz.DS.B. Civil Miscellaneous Appeal No.521 of 2017 and S.B. CivilMiscellaneous Appeal No.522 of 2017, before the High Court ofRajasthan, Jaipur Bench. Vide common judgment dated 25[th] July, 2018,the High Court set aside the Tribunal’s judgment in entirety, on the groundsthat non-examination of the pillion rider, Rajulal Khateek, was fatal tothe case of the appellants, that the witness Bhagchand (A.D. 2) wasEunreliable and his evidence could not be reckoned and that the site mapof the accident (Exh.3) showed that the deceased Sitaram was ridinghis motorcycle on the wrong side of the road at the time when theaccident occurred, thus, proving that it was Sitaram, and not respondentNo.2 (bus driver), who was guilty of negligence. The High Court thusFallowed the two appeals filed by the respondents and set aside theTribunal’s judgment, and consequently dismissed the appeal filed by theappellants.

12.We have heard Mr. Anuj Bhandari, learned counsel appearingfor the appellants and Mr. S.K. Bhattacharya, learned counselGappearing for the respondents. Mr. Bhandari submits that the MotorAccident Claims are summary proceedings so as to adjudicate theadequate amount of compensation in case of an accident and that aclaim under the Act has to be decided on the touchstone ofpreponderance of probability rather than on the standard of proof

beyond reasonable doubt which applies in criminal matters. He submitsthat evidence of Bhagchand (A.D.2) was justly accepted by theTribunal and the High Court discarded the same on specious ground thathe was not cited as witness in the criminal case registered by the localpolice in respect of the subject accident and was unable to tell the age ofthe pillion rider. Further, the non-examination of witness cited in thecharge sheet would not be fatal to the appellant’s claim and the entireclaim could not be rejected merely on such ground. Besides, thestatement of the pillion rider Rajulal Khateek, as recorded by the policeunder Section 161 of the Criminal Procedure Code (‘CrPC’), clearlystated that the offending bus was being driven in rash and negligentmanner and on the wrong side of the road and although this witness hasnot been examined in these proceedings, his statement neverthelessremained on the record as part of the final report filed under Section 173CrPC and hence, that could not be discarded merely for lack ofexamination of the said witness.13.Mr. Bhandari also submits that on the issue of negligence bythe rider of the motorcycle and the said motorcycle being driven on thewrong side of the road, the High Court came to diametrically oppositefinding from the Tribunal, merely by reference to the site plan, on thebasis of conjuncture and surmises and in complete disregard of the otherevidence 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 planindicated that the offending bus was being driven at high speed andafter hitting the motorcycle, it went further ahead and rammed into anelectricity pole off the road, well past the accident spot. The Tribunal’sjudgment was well-reasoned decision and plausible view of thematter. Thus, the High Court committed grave illegality in setting asidethe said decision. He relied upon Kusum Lata and Ors. Vs. Satbir andOrs.[1], Bimla Devi and Ors. Vs. Himachal Road TransportCorporation and Ors.[2], United India Insurance Company LimitedVs. Shila Datta and Ors.,[3 ]and Dulcina Fernandes and Ors.Vs. Joaquim Xavier Cruz and Anr. [4], in support of his arguments.

14.Per contra, Mr. S.K. Bhattacharya, learned counsel for therespondents, 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

ANot only did the appellants failed to examine any independent witness tothe case but also, the testimony of Bhagchand (A.D. 2) was not credibleas neither was his name set out in the list of witnesses nor could heidentify the age of the pillion rider on the motorcycle. However, thesame witness could clearly identify both, the number of the motorcycleand the number of the offending bus, thus indicative of the fact that theBwitness was tutored and not natural witness. Mr. Bhattacharyasubmits that the Tribunal’s opinion, that not all witnesses named in thecharge-sheet were required to be presented by the investigating agencyrather, only the spot witnesses were required, was contradictory, sincethe pillion rider on the motorcycle, Rajulal Khateek, was mentioned as aCwitness in the charge-sheet but the said person was not presented forexamination.

15.Mr. Bhattacharya further argues that the two principlesapplicable to the assessment of evidence in matters of reckless drivingand negligence are res ipsa loquitor and preponderance of probability.DThat principle casts burden on the appellants/claimants to show thatthe deceased Sitaram was not negligent in riding his motorcycle. Thefacts, however, indicate that the accident occurred in the middle of theroad and although the offending bus was being driven in the middle ofthe road, the fault lay with the lighter vehicle namely, the motorcycle.Merely because the bus was being driven fast, it does not follow that theEsame was also being driven negligently. The evidence on record lackedbasic requirements to prove the guilt of respondent No.2 driver, let aloneon the preponderance of probability and there was no evidence toindicate the callousness or negligence of the bus driver. There was noassessment of contributory negligence on the part of the deceased SitaramFand the appellants failed to prove any negligence on behalf of therespondents.

16.Finally, Mr. Bhattacharya submits that the compensationawarded by the Tribunal to the parents of the deceased Sitaram wasincorrect since there was no evidence on record to show that theGparents were dependent on the deceased or that they were staying withhim. Sitaram was admittedly not bachelor and was not staying with hisparents. While the parents did have the right to filial consortium,however, compensation under such head was to be awarded separatelyand not on structured basis.

17.We have cogitated over the above submissions and haveexamined the relevant record. The pivotal question is about thecorrectness of the approach of the High Court in setting aside thefindings of fact recorded by the Tribunal. Further, whether thecircumstances emanating from the evidence produced by the partiesjustify the conclusion reached by the High Court on the factum ofnegligence on the part of the motorcycle rider, the deceased Sitaram, incausing the accident with the offending bus driven by respondent No.2.

18.Indeed, we are conscious of the scope of an appeal underArticle 136 of the Constitution of India. This Court ordinarily does notre-examine or re-appreciate the evidence. But it is certainly open to thisCourt to interfere if the findings recorded in the judgment under appealare 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 24pages came to be reversed by the High Court, if we may say so, in acryptic manner in 5 pages. The relevant portion of the High Courtjudgment under appeal, after recording facts and submissions of thecounsel, reads thus:

“In order to prove Issue No.1, claimants examined AW-2Bhagchand. The said witness deposed that on 28.10.2011,while he was returning after answering the call of nature, hesaw that motorcycle was coming from village Manhapuraside. The Roadsways but came from opposite direction andstruck against the motorcycle. As result, one person, whowas sitting on the motorcycle died. In his cross-examination,he deposed that one more person was also sitting on themotorcycle. However, he could not tell if the said person wasyoung, old or child.

FIR Exhibit-1 was lodged by Kailash Chand with regardto the accident in question. perusal of the same reveals thatthe motorcycle was being driven by Sita Ram and Raju LalKhateek was sitting on the pillion seat. Best eye-witness inthe present case can be said to be Raju Lal Khateek, whowas travelling with the deceased at the time of accident.However, Raju Lal Khateek has not been examined by the

Aclaimants before the Tribunal. The name of Bhagchand is notshown in the list of witnesses as an eye-witness in thecriminal case. In the criminal case, Raju Lal Khateek hasbeen shown as an eye-witness. perusal of the site planExhibit-3 reveals that the bus was going on its correct side ofthe road, whereas, the motorcycle was coming on the wrongBside of the road, had struck against the bus.

In the facts and circumstances of the present case, noreliance can be placed on the statement of AW-2 Bhagchand,who had been examined by the claimants as an eye-witnessto the accident. The said witness could not even tell in hiscross- examination with regard to the age of the person, whowas sitting on the pillion seat. Thus, the learned Tribunal fellin error in deciding Issue No.1 in favour of the claimants.Accordingly, finding of the Tribunal on Issue No.1 is reversedand the said issue is decided against the claimants.”

This is the only analysis/discussion in the entire judgment toreverse the exhaustive analysis done by the Tribunal to which we haveset out in brief in paragraphs 5 to 9 above. The thrust of the reasoninggiven by the High Court rests on the unreliability of the witnessespresented by the appellants: first, that the evidence given by BhagchandE(A.D.2) was unreliable because he was not shown as witness in thelist of witnesses mentioned in the charge sheet filed by the police andthat the said witness could not identify the age of the pillion rider, RajulalKhateek. Second, the said pillion rider himself, Rajulal Khateek, whowas the “best” witness in the matter, was not presented for examinationby the appellants. The High Court also relies on the site map (Exh.3) toFrecord the finding on the factum of negligence of the deceased Sitaramin causing the accident which resulted in his death.

20.We have no hesitation in observing that such ahyper-technical and trivial approach of the High Court cannot besustained in case for compensation under the Act, in connection with aGmotor vehicle accident resulting in the death of family member.Recently, in Mangla Ram Vs. Oriental Insurance Company Limitedand Ors.[5], (to which one of us, Khanwilkar, J. was party), this Courthas restated the position as to the approach to be adopted in accident

H5(2018) 5 SCC 656

claim cases. In that case, the Court was dealing with case of anaccident between motorcycle and jeep, where the Tribunal hadrelied upon the FIR and charge-sheet, as well as the accompanyingstatements of the complainant and witnesses, to opine that the policerecords confirmed the occurrence of an accident and also the identity ofthe offending jeep but the High Court had overturned that finding interalia on the ground that the oral evidence supporting such finding hadbeen discarded by the Tribunal itself and that reliance solely on thedocument forming part of the police record was insufficient to arrive atsuch finding. Disapproving that approach, this Court, after adverting tomultitude of cases under the Act, noted as follows:

“22. The question is: Whether this approach of the High Courtcan be sustained in law? While dealing with similar situation,this Court in Bimla Devi[6] noted the defence of the driver andconductor of the bus which inter alia was to cast doubt on thepolice record indicating that the person standing at the rear sideof the bus, suffered head injury when the bus was being reversedwithout blowing any horn. This Court observed that while dealingwith the claim petition in terms of Section 166 of the Motor VehiclesAct, 1988, the Tribunal stricto sensu is not bound by the pleadingsof the parties, its function is to determine the amount of faircompensation. In paras 11-15, the Court observed thus: (SCCpp. 533-34)

“11. While dealing with claim petition in terms of Section166 of the Motor Vehicles Act, 1988, tribunal stricto sensuis not bound by the pleadings of the parties; its functionbeing to determine the amount of fair compensation in theevent an accident has taken place by reason of negligenceof that driver of motor vehicle. It is true that occurrenceof an accident having regard to the provisions containedin Section 166 of the Act is sine qua non for entertaininga claim petition but that would not mean that despiteevidence to the effect that death of the claimant’spredecessor had taken place by reason of an accidentcaused by motor vehicle, the same would be ignored onlyon the basis of post-mortem report vis-à-vis the avermentsmade in claim petition.

12. The deceased was constable. Death took place near apolice station. The post-mortem report clearly suggests thatthe deceased died of brain injury. The place of accident isnot far from the police station. It is, therefore, difficult to believethe story of the driver of the bus that he slept in the bus and inthe morning found dead body wrapped in blanket. If thedeath of the constable had taken place earlier, it is whollyunlikely that his dead body in small town like Dharampurwould remain undetected throughout the night particularly whenit was lying at bus-stand and near police station. In such anevent, the Court can presume that the police officers themselvesshould have taken possession of the dead body.

13. The learned Tribunal, in our opinion, has rightlyproceeded on the basis that apparently there was absolutelyno reason to falsely implicate Respondents 2 and 3. Theclaimant was not at the place of occurrence. She, therefore,might not be aware of the details as to how the accident tookplace but the fact that the first information report had beenlodged in relation to an accident could not have been ignored.

14. Some discrepancies in the evidence of the claimant’switnesses might have occurred but the core question beforethe Tribunal and consequently before the High Court was asto whether the bus in question was involved in the accident ornot. For the purpose of determining the said issue, the Courtwas required to apply the principle underlying the burden ofproof in terms of the provisions of Section 106 of the EvidenceAct, 1872 as to whether dead body wrapped in blanket hadbeen found at the spot at such an early hour, which was requiredto be proved by Respondents 2 and 3.

15. In situation of this nature, the Tribunal has rightlytaken holistic view of the matter. It was necessary to beborne in mind that strict proof of an accident caused by aparticular bus in particular manner may not be possibleto be done by the claimants. The claimants were merely toestablish their case on the touchstone of preponderanceof probability. The standard of proof beyond reasonable

doubt could not have been applied. For the said purpose,the High Court should have taken into consideration therespective stories set forth by both the parties.”

(emphasis supplied)

The Court restated the legal position that the claimants were merelyto establish their case on the touchstone of preponderance ofprobability and standard of proof beyond reasonable doubt cannotbe applied by the Tribunal while dealing with the motor accidentcases. Even in that case, the view taken by the High Court toreverse similar findings, recorded by the Tribunal was set aside.

23. Following the enunciation in Bimla Devi case, this Court inParmeshwari v. Amir Chand[7] noted that when filing of thecomplaint was not disputed, the decision of the Tribunal ought notto have been reversed by the High Court on the ground that nobodycame from the office of the SSP to prove the complaint. TheCourt appreciated the testimony of the eyewitnesses in paras 12& 13 and observed thus: (Parmeshwari case, SCC p. 638)

“12. The other ground on which the High Court dismissed thecase 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 good citizen,Umed Singh extended his help to the appellant by helping herto reach the doctor’s chamber in order to ensure that an injuredwoman gets medical treatment. The evidence of Umed Singhcannot be disbelieved just because he did not file complainthimself. We are constrained to repeat our observation that thetotal approach of the High Court, unfortunately, was notsensitised enough to appreciate the plight of the victim.13. The other so-called reason in the High Court’s order wasthat as the claim petition was filed after four months of theaccident, the same is “a device to grab money from theinsurance company”. This finding in the absence of any materialis certainly perverse. The High Court appears to be notcognizant of the principle that in road accident claim, thestrict principles of proof in criminal case are not attracted.…”

24. It will be useful to advert to the dictum in N.K.V. Bros. (P)Ltd. v. M. Karumai Ammal[8], wherein it was contended by thevehicle owner that the criminal case in relation to the accidenthad ended in acquittal and for which reason the claim under theMotor Vehicles Act ought to be rejected. This Court negativedthe said argument by observing that the nature of proof requiredto establish culpable rashness, punishable under IPC, is morestringent than negligence sufficient under the law of tort to createliability. The observation made in para 3 of the judgment wouldthrow some light as to what should be the approach of the Tribunalin motor accident cases. The same reads thus: (SCC pp. 458-59)

“3. Road accidents are one of the top killers in our country,specially when truck and bus drivers operate nocturnally. Thisproverbial recklessness often persuades the courts, as has beenobserved by us earlier in other cases, to draw an initialpresumption in several cases based on the doctrine of res ipsaloquitur. Accidents Tribunals must take special care to see thatinnocent victims do not suffer and drivers and owners do notescape liability merely because of some doubt here or someobscurity there. Save in plain cases, culpability must be inferredfrom the circumstances where it is fairly reasonable. The courtshould not succumb to niceties, technicalities and mysticmaybes. We are emphasising this aspect because we are oftendistressed by transport operators getting away with it thanksto judicial laxity, despite the fact that they do not exercisesufficient disciplinary control over the drivers in the matter ofcareful driving. The heavy economic impact of culpable drivingof public transport must bring owner and driver to theirresponsibility to their neighbour. Indeed, the State must seriouslyconsider no-fault liability by legislation. second aspect whichpains us is the inadequacy of the compensation or undueparsimony practised by tribunals. We must remember thatjudicial tribunals are State organs and Article 41 of theConstitution lays the jurisprudential foundation for State reliefagainst accidental disablement of citizens. There is nojustification for niggardliness in compensation. third factorwhich is harrowing is the enormous delay in disposal of accident

cases resulting in compensation, even if awarded, beingpostponed by several years. The States must appoint sufficientnumber of tribunals and the High Courts should insist uponquick disposals so that the trauma and tragedy already sustainedmay not be magnified by the injustice of delayed justice. ManyStates are unjustly indifferent in this regard.”

25. In Dulcina Fernandes[9], this Court examined similar situationwhere the evidence of claimant’s eyewitness was discarded bythe Tribunal and that the respondent in that case was acquitted inthe criminal case concerning the accident. This Court, however,opined that it cannot be overlooked that upon investigation of thecase registered against the respondent, prima facie, materialsshowing negligence were found to put him on trial. The Courtrestated the settled principle that the evidence of the claimantsought to be examined by the Tribunal on the touchstone ofpreponderance of probability and certainly the standard of proofbeyond reasonable doubt could not have been applied as noted inBimla Devi. In paras 8 & 9 of the reported decision, the dictum inUnited India Insurance Co. Ltd. v. Shila Datta[10], has beenadverted to as under: (Dulcina Fernandes case, SCC p. 650)“8. In United India Insurance Co. Ltd. v. Shila Datta whileconsidering the nature of claim petition under the MotorVehicles Act, 1988 three-Judge Bench of this Court has culledout 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 theclaimant is required to make an application in form prescribedunder the Act. In fact, there is no pleading where theproceedings are suo motu initiated by the Tribunal.

(v) Though the Tribunal adjudicates on claim and determinesthe compensation, it does not do so as in an adversarial litigation.

9 (Supra) at footnote 4

10 (2011) 10 SCC 509

(vi) The Tribunal is required to follow such summary procedureas it thinks fit. It may choose one or more persons possessingspecial knowledge of and matters relevant to inquiry, to assistit in holding the enquiry.’

9. The following further observation available in para 10 of theReport would require specific note: (Shila Datta case, SCCp. 519)

‘10. … We have referred to the aforesaid provisions to showthat an award by the Tribunal cannot be seen as an adversarialadjudication between the litigating parties to dispute, but astatutory determination of compensation on the occurrence ofan 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 theclaim set up before the Tribunal. In other words, the approachof the Tribunal should be holistic analysis of the entire pleadingsand evidence by applying the principles of preponderance ofprobability.”

It is thus well settled that in motor accident claim cases, once thefoundational fact, namely, the actual occurrence of the accident, hasEbeen established, then the Tribunal’s role would be to calculate thequantum of just compensation if the accident had taken place by reasonof negligence of the driver of motor vehicle and, while doing so, theTribunal would not be strictly bound by the pleadings of the parties.Notably, while deciding cases arising out of motor vehicle accidents, thestandard of proof to be borne in mind must be of preponderance ofFprobability and not the strict standard of proof beyond all reasonabledoubt which is followed in criminal cases.

21.In the present case, we find that the Tribunal had followed ajust approach in the matter of appreciation of the evidence/materials onrecord. Whereas, the High Court adopted strict interpretation of theGevidence on the touchstone of proof beyond reasonable doubt to recordan adverse finding against the appellants and to reverse the wellconsidered judgment of the Tribunal in cryptic manner.

22.Reverting to the factual matrix, the actual occurrence of theaccident between the motorcycle driven by Sitaram bearing registration

number RJ 25 SA 6923 coming from one side and bus belonging torespondent No.1 (the Rajasthan State Road Transport Corporation)bearing registration number RJ-26/P.A. 0042 coming from the oppositedirection, is duly proved. The Tribunal has relied upon theuncontroverted evidence of witnesses A.D.1 and A.D. 3, and thedocuments presented by them, especially FIR No. 247/2011 (Exh. 1)and charge-sheet (Exh.2) against one Banwari Lal Bairwa (respondentNo.2), charging him with offences under Sections 279, 337 and 304A ofthe IPC and Sections 134/187of the Act, to establish that on 28.10.2011at around 7 A.M., Sitaram, along with pillion rider Rajulal Khateek, wasriding on motorcycle bearing number RJ 25 SA 6923 from villageBapuee to Chaut ka Barwad for Daug, to his sister, when, near Mahapuratri-section, bus number RJ-26/P.A. 0042 belonging to respondent No.1(the Rajasthan State Road Transport Corporation) coming from theopposite direction hit the motorcycle from the front, resulting in the deathof Sitaram.23.The Tribunal had justly accepted the appellants’ contentionthat the respondents did not challenge the propriety of the said FIR No.247/2011 (Exh. 1) and charge-sheet (Exh. 2) before any authority. Theonly defence raised by the respondents to this plea was that the said FIRNo. 247/2011 was based on wrong facts and was filed in connivancebetween the appellants/complainants and the police, against which therespondents complained to the in-charge of the police station and theDistrict Superintendent of Police but to no avail. Apart from this baldassertion, no evidence was produced by the respondents before theTribunal to prove this point. The filing of the FIR was followed by thefiling of the charge-sheet against respondent No.2 for offences underSections 279, 337 and 304A of the IPC and Sections 134/187 of the Act,which, again, reinforces the allegations in the said FIR insofar as theoccurrence of the accident was concerned and the role of respondentNo.2 in causing such accident. Be that as it may, the High Court has noteven made mention, let alone record finding, of any improprietyagainst FIR 247/2011 (Exh. 1) or charge-sheet (Exh. 2) or theconclusion reached by the Tribunal in that regard. Yet, the FIR and theCharge-sheet has been found to be deficient by the High Court.

24.Before the Tribunal, respondent No.1 has neither denied thatrespondent No.2 was in its employment at the time of the accident norhas it denied that respondent No.2 was driving the offending bus

Ano. RJ-26/P.A. 0042 at the time of the accident. The Tribunal has alsoreferred to the Post-mortem report (Exh.4) which establishes that Sitaramdied 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 theTribunal has accepted these depositions and the evidence presented inBthat regard, the High Court has, surprisingly, not even referred to it oreven the numerous documents presented by the said witnesses asevidence, apart from passing reference to FIR 247/2011 (Exh.1).

25.The Tribunal’s reliance upon FIR 247/2011 (Exh. 1) andcharge-sheet (Exh. 2) also cannot be faulted as these documentsCindicate the complicity of respondent No.2. The FIR and charge-sheet,coupled with the other evidence on record, inarguably establishes theoccurrence of the fatal accident and also point towards the negligenceof the respondent No.2 in causing the said accident. Even if the finaloutcome of the criminal proceedings against respondent No.2 is unknown,

Dthe same would make no difference atleast for the purposes of decidingthe claim petition under the Act. This Court in Mangla Ram (supra),noted that the nature of proof required to establish culpability undercriminal law is far higher than the standard required under the law oftorts to create liability.

E26.Accordingly, we have no hesitation in upholding the findingrecorded by the Tribunal that there was an accident on 28-10-2011 ataround 7AM between the motorcycle driven by Sitaram bearingregistration number RJ 25 SA 6923 and bus belonging to respondentNo.1. (the Rajasthan State Road Transport Corporation) bearingregistration number RJ-26/P.A. 0042 coming from the opposite directionFand being driven rashly and negligently by respondent No.2, whichresulted in the death of Sitaram.

27.The next question is whether the purported shortcomings inthe evidence of Bhagchand Khateek (A.D.2) and the lack of evidenceof the pillion rider on the motorcycle, Rajulal Khateek, would be fatal toGthe appellants’ case. As regards the evidence of Bhagchand, the HighCourt found that the deposition of the said witness was unreliablebecause his name was not mentioned in the list of witnesses in thecriminal proceedings and also because he was unable to tell the age ofthe pillion rider. Besides, the said witness lived in Pakhala village, whichHwas 3 (three) kilometres away from the accident spot and hence, hecould not have been near the said spot when the accident occurred. TheTribunal had dealt with these objections quite substantially and, in ouropinion, 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 thename of the witness Bhag Chand is not mentioned in thelist of witnesses in exhibit-2 charge sheet but if theinterrogation with this witness is perused then the opponentin order of not considering this witness as eye-witness, hasnot asked about giving police statement or not having hisname in the list of witnesses. The witness A.D.2 Bhag ChandKhateek, in interrogation on behalf of opponents has acceptedthis that he neither knows Banwari nor after the incident he hasseen Banwari.

During interrogation the statement of the witness has been that Iwas near the place of incident itself. That time I was returningafter relieving myself. The argument of the opponents hasbeen that the witness Bhag Chand is resident of villagePakhala whereas the place of incident is at distance of 3k.m. therefore, the statement of going to toilet is false.Therefore, he should not be considered eye-witness. Butthe witness A.D.2 Bhag Chand Khateek has stated in hismain statement that one day from dated 28.10.2011, he hadcome to his brother’s house at village Shivad. In such aSituation, in our humble opinion, the witness being at adistance of 3 k.m. from spot of incident, being resident ofPakhala village, this cannot be considered that this witnesswould not be considered eye-witness.

Whereas there is question of his name not being in the charge-sheet as witness, definitely due to this fact, each such witnesscannot be considered eyewitness who gives little statement aboutincident. But the evidence which the witness A.D.2 BhagChand Khateek has given on oath, in order to prove thatdistrust worthy, the opponents have not done any suchinterrogation from which there is suspicion in the statementsof witness. The witness Bhag Chand Khateek was not eventhis suggestion that his police statement was not taken orthe police had not interrogated him. In our humble opinion,

Ain cases like accident occurring suddenly, the personspresent near the place of incident are eye-witness of theincident. But during investigation this is not necessary thatthe investigation agency should name all the eye-witnessesas witness in the charge sheet. Therefore, the statementof witness A.D.2 Bhag Chand Khateek cannot beBconsidered distrust worthy that his name in the charge sheetis not mentioned as witness.”

(emphasis supplied)

28.Clearly, the evidence given by Bhagchand withstood theCrespondents’ scrutiny and the respondents were unable to shake hisevidence. In turn, the High Court has failed to take note of the absenceof cross examination of this witness by the respondents, leave alone theTribunal’s finding on the same, and instead, deliberated on the reliabilityof Bhagchand’s (A.D.2) evidence from the viewpoint of him not beingnamed in the list of eye witnesses in the criminal proceedings, withoutDeven mentioning as to why such absence from the list is fatal to the caseof the appellants. This approach of the High Court is mystifying,especially in light of this Court’s observation [as set out inParmeshwari(supra) and reiterated in Mangla Ram(supra)] that thestrict principles of proof in criminal case will not be applicable in aEclaim for compensation under the Act and further, that the standard tobe followed in such claims is one of preponderance of probability ratherthan one of proof beyond reasonable doubt. There is nothing in the Actto preclude citing of witness in motor accident claim who has not beennamed in the list of witnesses in the criminal case. What is essential isthat the opposite party should get fair opportunity to cross examine theFconcerned witness. Once that is done, it will not be open to them tocomplain about any prejudice caused to them. If there was any doubt tobe cast on the veracity of the witness, the same should have come out incross examination, for which opportunity was granted to therespondents by the Tribunal.G29.The importance of cross-examining witness has beenelucidated by this Court on several occasions, notably in Kartar SinghVs. State of Punjab,[11] where Five-Judge Bench of this Courtelaborated:

11(1994) 3 SCC 569H

“278. Section 137 of the Evidence Act defines whatcross-examination means and Sections 139 and 145 speak of themode of cross-examination with reference to the documents aswell as oral evidence. It is the jurisprudence of law thatcross-examination is an acid-test of the truthfulness of thestatement made by witness on oath in examination-in-chief, the objects of which are:

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

(2) to elicit facts in favour of the cross- examining lawyer’sclient from the mouth of the witness of the adversary party;

(3) to show that the witness is unworthy of belief byimpeaching 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 isand what is his position in life; and to shake his credit byinjuring his character.

279. The identity of the witness is necessary in the normal trial ofcases to achieve the above objects and the right ofconfrontation is one of the fundamental guarantees so thathe could guard himself from being victimized by any falseand invented evidence that may be tendered by theadversary party.”

(emphasis supplied)

The High Court has not held that the respondents were successfulin challenging the witnesses’ version of events, despite being given theopportunity to do so. The High Court accepts that the said witness (A.D.2)was cross examined by the respondents but nevertheless reaches aconclusion different from that of the Tribunal, by selectively overlookingthe deficiencies in the respondent’s case, without any proper reasoning.

30. The High Court discarded the evidence of Bhagchand (A.D. 2)also because he could not recollect the age of the pillion rider. Theinability of the witness to identify the age of the pillion rider cannot, perse, be militating factor to discard his entire version especially since thepresence of the witness at the time and place of the accident has

Aremained unshaken and including his deposition regarding the manner ofoccurrence of the accident and identity of the driver of the offendingvehicle. The filing of FIR No.247/2011 (Exh.1) and the subsequent filingof the charge-sheet (Exh.2) corroborate the witnesses’ evidence. Theview taken by the Tribunal therefore, on the veracity of the evidence ofA.D. 2, is unexceptionable and there was no reason for the High CourtBto interfere with the same.

31.Similarly, the issue of non-examination of the pillion rider, RajulalKhateek, would not be fatal to the case of the appellants. The approachin examining the evidence in accident claim cases is not to find fault withnon examination of some “best” eye witness in the case but to analyseCthe evidence already on record to ascertain whether that is sufficient toanswer the matters in issue on the touchstone of preponderance ofprobability. This court, in Dulcina Fernandes (supra), faced similarsituation where the evidence of claimant’s eyewitness was discarded bythe Tribunal and the respondent was acquitted in the criminal caseDconcerning the accident. This Court, however, took the view that thematerial on record was prima facie sufficient to establish that therespondent was negligent. In the present case, therefore, the Tribunalwas right in accepting the claim of the appellants even without thedeposition of the pillion rider, Rajulal Khateek, since the other evidence

on record was good enough to prima facie establish the manner in whichEthe accident had occurred and the identity of the parties involved in theaccident.

32.On the issue of negligence by the deceased Sitaram incausing the accident, the Tribunal has referred to the notice issuedunder Section 134 of the Act (Exh. 7) to the driver of the offendingFvehicle, respondent No.2. It records that in the said notice, respondentNo.2 failed to give any statement indicating that the accident occurreddue to any mistake by the rider of the motorcycle, Sitaram. The Tribunalhas further relied upon the evidence of Bhagchand (A.D.2) and alsoupon the site plan of the accident (Exh. 3) to reach conclusion thatGrespondent No.2 recklessly drove the speeding bus on the wrong side ofthe road, into the motorcycle being ridden by Sitaram, who was on thecorrect side of the road, and caused his death. Whereas, the High Courthas disregarded the evidence of Bhagchand. Further, the site plan(Exh. 3) cannot be read in isolation. It will have to be examined inconjunction with the other evidence.H33.The site plan (Exh. 3) has been produced in evidence beforethe Tribunal by witness A.D. 1 (appellant No.1 herein) and the recordseems to indicate that the accident occurred in the middle of the road.However, the exact location of the accident, as marked out in the siteplan, has not been explained muchless proved through competentwitness by the respondents to substantiate their defence. Besides, theconcerned police official who prepared the site plan has also not beenexamined. While the existence of the site plan may not be in doubt, it isdifficult to accept the theory propounded on the basis of the site plan torecord finding against the appellants regarding negligence attributableto deceased Sitaram, moreso in absence of ocular evidence to proveand explain the contents of the site plan.

34.Be it noted that the evidence of witness A.D.2 (Bhagchand)unequivocally states that the respondent No.2 bus driver was negligentin driving recklessly at high speed on the wrong side of the road, thus,resulting in the accident which caused the death of Sitaram. It was notopen to the High Court to discard this evidence. Additionally, theTribunal had justly placed reliance on the contents of FIR No.247/2011(Exh. 1) and charge-sheet (Exh.2) which prima facie indicate thenegligence of respondent No.2 in driving the bus. We once againremind ourselves of the dictum in Dulcina Fernandes (supra) andthereafter in Mangla Ram (supra), and answer the factum ofnegligence of the driver of the offending vehicle against therespondents.

35.Reverting to the question of adequacy of compensation amountdetermined by the Tribunal, the appellants have not assailed the order ofthe High Court rejecting their appeal. Further, in their appeal before theHigh Court (SBCMA No.581 of 2017), the limited grievance was aboutdeduction of income tax from the calculated income. That ground isunsustainable in light of the decision in National Insurance CompanyLimited Vs. Pranay Sethi and Ors.[12] We cannot permit the appellantsto widen the scope in the present appeal, muchless pray for enhancedcompensation. We are instead inclined to restore the Award passed bythe Tribunal as it has determined the just compensation amount, keepingin mind all the relevant parameters including the apportionment thereofbetween the family members of the deceased. Upholding that Awardwould be doing complete justice.

356SUPREME COURT REPORTS[2019] 3 S.C.R.

A36.Resultantly, this appeal must succeed. We hold that theimpugned judgment and order of the High Court deserves to be set asideand instead, the Award passed by the Tribunal dated 14[th] December,2016 be restored.

37.Appeal is allowed in the above terms. No order as to costs.

Nidhi Jain

Appeal allowed.