REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  2538            OF 2009 (Arising out of SLP (C) No.280 of 2006)

Bimla Devi & Ors. … Appellant

Versus

Himachal Road Transport Corpn. & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. This  appeal  is  directed  against  a  judgment  and  order  dated

22.8.2005 passed by the High Court of Himachal Pradesh, Shimla in FAO

No.127 of 1999 whereby and whereunder an appeal preferred against a

judgment  and  award  dated  28.10.1998  passed  by  the  Motor  Accident

Claims Tribunal-II [MACT (I), Nahan] in MAC Petition No.21-NL/2 of

1997, was set aside.  

3. One  Jawala  Ram,  husband  of  the  first  appellant  herein,  was  a

Police  Constable.   He  was  posted  at  Police  Station  Dharampur.   On

11.2.1997 at about 7 or 8 am, he was standing near the shop of one Chand

Kishore.  A bus bearing registration No.HP-14-3596 owned by the first

respondent was parked there.  The second respondent Vijay Kumar was

the driver and the third respondent  Om Dutt  was the  conductor of the

aforementioned  bus.   Allegedly,  the  driver  of  the  bus,  Vijay  Kumar,

reversed the bus without  blowing any horn as a result  whereof Jawala

Ram died on the spot.  Allegedly, conductor also did not bother to check

whether any person was standing behind the bus.

4. Respondents, however, denied and disputed occurrence of the said

accident.  According to them, the deceased died the previous evening and

finding the dead body of a person wrapped in a blanket lying at some

distance from the bus; they informed the police personnel, whereafter the

driver was falsely implicated.

5. The factum of accident, thus, being denied and disputed; one of the

issues framed by learned Tribunal on the claim application filed by the

appellants herein for grant of compensation in terms of Section 166 of the

Motor Vehicles Act, 1988 was:

“Whether  Sh.  Jawala  Ram died  on  11.2.1997 near Dharampur,  due  to  rash  and negligent  of Bus  No.HP-14-3596  by  respondent  No.2  and

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negligent  conduct  of  respondent  No.3  as alleged?”

6. The learned Tribunal upon consideration of the evidence adduced

on behalf of the appellant and the first respondent, opined :

(1) Death of Jawala Ram on 11.2.1997 at Dharampur was not disputed.

(2) First  Information  Report  was  registered  at  Police  Station,

Dharampur on the  said date also stands admitted.

(3) Even if the allegations made in the First Information Report are not

taken into consideration, the death of Jawala Ram in an accident

stood proved by the post mortem examination report (Exhibit-PY)

in terms whereof he had died due to brain injury.  

(4) Death of Jawala Ram in an accident has also been proved by Shri

Dharam Pal (PW3) who was an eye-witness to the occurrence.

7. The driver and conductor of the bus admitted their presence at the

scene of occurrence.  Vijay Kumar (RW1) alleged that he had seen the

dead body wrapped in a blanket behind the bus when he was still to start

the bus.  The Tribunal did not find his statement to be reliable.  Bhawani

Dutt (RW2) did not support the version of the respondent as he stated that

the driver and conductor of the bus had gone to the police station and the

people  gathered  there  stated  that  someone  had  been  lying  dead.   He,

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according to the Tribunal, also could not deny positively that the accident

had not taken place because of the use of the bus in question.   

It is difficult to believe that the Police Officers would fabricate a

case against the respondents.  The learned Tribunal opined:

“Therefore,  keeping  in  view  the  statement  of PW,  Dharam  Pal,  the  death  of  Jawala  Ram because of injuries, the presence of the Bus of the  respondents  and  place  and  time  of  the occurrence  and the  other  circumstances  of  the case,  I  am convinced that  the death of  Jawala Ram took place after being hit by the Bus when it  was  being  reversed  in  backward  directions. Once, it is so held, the respondents, driver and conductor  shall  have  to  be  held  negligent  in reversing  the  bus  in  backward  directions without  blowing  horn  or  whistle  or  giving indication  to  the  persons  standing  there.   Had the driver and conductor of the bus taken care to blow horn or to forewarn the persons standing there before reversing the bus, Jawala Ram, who was stated to be standing behind the bus would not have been crushed.  Consequently, it is held that  Jawala  Ram  had  died  because  of  the injuries sustained by him in the course of Bus accident because of rashness and negligence of the  respondents,  driver  and  conductor  of  the Bus.”

8. The said issue, on the basis of the aforementioned findings,  was

decided in favour of the appellant.   

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On an appeal  preferred  therefrom by the  respondents  before  the

High Court, however, the said finding of fact was reversed by it,  inter

alia, opining:

“In the post mortem report there is no details of any such crush injuries of tyre marks in fact the thorax and abdomen region have been found by and large normal.  Even to the muscle bones and joints  there  are no serious injuries.   The main injury is to the head only.  It is not the case of the claimants that only the head of the deceased was  crushed  under  the  tyres.   Therefore,  the version of the claimants is difficult to believe.”

The High Court furthermore held that the deceased might have died

in  some  accident  and  the  Police  officials  wrongly  lodged  the  first

information report against the driver of the bus.   

Appellant is, thus, before us.

9. Mr.  Dinesh  Verma,  learned  counsel  appearing  on  behalf  of  the

appellant, would submit that having regard to the reasons assigned by the

learned Tribunal, the High Court must be held to have committed serious

error in passing the impugned judgment.

10. Mr.  Maheshwari,  learned  counsel  appearing  on  behalf  of  the

respondents, however, supported the judgment of the High Court.

11. The post mortem report clearly stated of a head injury.

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12. 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 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

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.  

13. 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 death of a constable has 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 should have taken possession of the

dead body.   

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14. The learned Tribunal, in our opinion, has rightly proceeded on the

basis that apparently there was absolutely no reason to falsely implicate

the respondent Nos.2 and 3.  Claimant was not at the place of occurrence.

She, therefore, 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.   Some

discrepancies  in  the  evidences  of  the  claimant’s  witnesses  might  have

occurred  but  the  core  question  before  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 burden of proof in

terms of the provisions of Section 106 of the Indian Evidence Act as to

whether a dead body wrapped in a blanket had been found at the spot at

such an early hour, which was required to be proved by the respondent

Nos.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 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

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applied.   For the  said purpose,  the High Court  should have taken into

consideration the respective stories set forth by both the parties.   

16. The  judgment  of  the  High  Court  to  a  great  extent  is  based  on

conjectures  and  surmises.   While  holding  that  the  police  might  have

implicated  the  respondents,  no  reason  has  been  assigned  in  support

thereof.  No material brought on record has been referred to for the said

purpose.

17. For the reasons aforementioned, the impugned judgment cannot be

sustained.  It is set aside accordingly.  The appeal is allowed.  However,

in the facts and circumstances of the case, there shall be no order as to

costs.

……………………………….J. [S.B. Sinha]

..………………………….. …J.     

[P. Sathasivam] New Delhi; April 15, 2009

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