Each party should get a fair opportunity to cross examine the concerned witness, after which they are not allowed to raise any doubts upon the credibility of the witness: Supreme Court
“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 once”, this remarkable stand was forwarded by the Honorable SC in the Civil Appeal case of Anita Sharma &amp; Ors. V. The New India Assurance Co. Ltd. &amp; Anr., [Civil Appeal No. 4010-­4011 of 2020], chaired by Hon’ble Justice Mr. Surya Kant and Hon’ble Mr. Justice Aniruddha Bose. Sandeep Sharma (deceased), was a resident of District Sikar in Rajasthan. He was traveling in a car bearing registration no. UP 65 AA 7100 from Ghazipur to Varanasi (Uttar Pradesh) on the night of 25.03.2009 along with his friend Sanjeev Kapoor (Respondent No. 2) and 2 other occupants. Sanjeev Kapoor, who was also its owner, was driving the car when at about 10:20 PM near village Atroli, a truck coming from the opposite side struck the car as a result of which all the occupants suffered injuries. Sandeep along with all the other injured occupants were immediately talked to the nearest hospital in Ghazipur at around 11:55 PM but was then referred to the institute of medical science and SS. Hospital, BHU Varanasi on 26.03.2009. It appears that   Sandeep kept experiencing one after another medical complication, succumbing to which he eventually died on 10.12.2009. At the time of death, the deceased was aged 34 years and was an income tax assessee with an EPF (Employees   Provident   Fund) account. He was employed in Mumbai at Kelvin ESS Vee Textiles as a Sales Officer on regular basis. He left behind a widow, two minor children and a mother; all of whom were solely dependent on him. Sandeep’s dependents filed a claim petition for Rs 60,94,000 on 26.08.2010 alleging inter alia that the reason for his death was the injuries which he suffered in the accident dated 25.03.2009,  which occurred due to the rash and negligent driving of Sanjeev Kapoor who was the owner-cum-driver of the car in which Mr. Sandeep was traveling. Sanjeev along with the insurer of the car (insurance company) was impleaded as party respondents. Mr. Sanjeev accepting the fact that the death of the occupant Mr. Sandeep was a result of the accident but he believed that the accident which was caused was not due to his rash driving but due to the truck which struck them, he further added that as all of the occupant traveling in the car were severally shook and injured by the truck, none of them were able to note the number of the truck which made a hasty get-away towards Ghazipur. In reaching its verdict, the Tribunal relied upon the statement of the eye­witness Ritesh Pandey (AW­3), according to whom Sanjeev Kapoor was driving the car at a very fast speed when it overtook a vehicle &amp; collided head­-on   against the oncoming truck.   The Tribunal,   thus,   assigned liability for the accident upon the respondents and partly allowed the   Claim   Petition with compensation of rupees 16,08,000. Both the insurance company and the appellant­ claimants filed their respective appeals before the HC. Through judgment dated 23.07.2018, the High Court set aside the Tribunal’s award &amp; dismissed the claim petition for the reason that 1st, the eye-witness had failed to report the accident to the jurisdictional police. The court believed that the claimants might have produced the fake witness to seek compensation. Secondly, the FIR had been lodged by the owner­-cum-driver, Sanjeev Kapoor, who would not have done so had he been at fault or driving rashly. The original claimant challenges this decision of the HC of Rajasthan, dated 23.07.2018, in the honorable SC along with the prayers which consisted of accepting the tribunal court’s decision and enhancement of the compensation.
These two appeals which have been heard through video conferencing are directed against the judgment dated 23.07.2018 passed by the High Court of Judicature for Rajasthan Bench at Co. Ltd. against the Motor Accident Claims Tribunal’s award dated 01.09.2012 was by the appellant­claimants for enhancement of compensation was and two other occupants. Sanjeev Kapoor who was also its owner 11:55PM but was subsequently referred to the Institute of Medical Sciences and S.S. Hospital BHU Varanasi on 26.03.2009 considering the severity and multiplicity of his injuries. Although he was that Sandeep kept experiencing one after another medical complications and remained hospitalized at the Jain Hospital in Jaipur and later the Joshi Nursing Home at Sikar. His injuries income tax assessee with an Employees Provident Fund and the insurer of the car ­ New India Assurance Co. Ltd. were The insurance company in its separate written statement took information report the accident was caused by an unknown truck which hit the car No. UP­65­AA­7100 and therefore the claim petition The factual averments made in the Claim Petition were denied for the eye­witness Ritesh Pandey according to whom Sanjeev Kapoor was driving the car at a very fast speed when it overtook a vehicle and collided head­on against the oncoming truck. The Tribunal thus assigned liability for the accident upon the respondents and partly allowed the Claim Petition with a compensation of Rs. 16 08 000 was registered on the basis of information furnished by one Pradeep Kumar Aggarwal son of Bal Krishan Das Aggarwal a resident of District travelling in the Wagon R Car No. UP­65­AA­7100 along with three which was being driven rashly and at a fast speed struck against the could not be noticed as it was dark. The car was badly damaged other. The informant himself had not witnessed the accident and hand relied upon the contents of the FIR and the ‘Investigation 13. At this juncture we may refer to the statement of Ritesh Pandey business dealings with the deceased or his family. He has deposed overtook him at a very high speed. He has further deposed that a truck coming from the opposite side collided with the car. Various deposed that he took all the four injured persons to the District Medical Sciences and S.S. Hospital BHU Varanasi. 14. Most importantly the only question asked to this witness in examination. While the Tribunal believed Ritesh Pandey and accepted the claim petition in part the High Court for the reasons and not by Ritesh Pandey leave no persons it is quite natural that the police It is commonplace for most people to be hesitant about being the injured to the hospital. The statement of AW­3 therefore acquires significance as according to him he brought the injured in his car to the hospital. Ritesh Pandeyacted as a good samaritan and a the independence and benevolence of AW­3. Without any personal injured to the hospital for immediate medical aid could not have Court ought not to have drawn any adverse inference against the police had themselves reached the hospital upon having received information about the accident there was perhaps no occasion for 18. Unfortunately the approach of the High Court was not sensitive was by way of disbelieving the testimony of Umed Singh PW 1 to reach the doctor s chamber in order to ensure that an 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 sensitised enough to appreciate the 15. In a situation of this nature the Tribunal has rightly taken a touchstone of preponderance of probability. The standard of proof witness or confront him with their version despite adequate They did not even suggest the witness that he was siding with the 20. The importance of cross­examination has been elucidated on “278. Section 137 of the Evidence Act defines what cross­ witness on oath in examination­in­chief the objects of which and the questions to be addressed in the course of cross­ examination are to test his veracity to discover who he is 21. Relying upon Kartar Singhin a MACT case this Court in Sunita v. Rajasthan State Road Transport Corporation3 considered the effect of non­examination of the pillion rider as a “30. Clearly the evidence given by Bhagchand withstood the 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 absence from the list is fatal to the case of the appellants. This Court s observation and 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 essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once cast on the veracity of the witness the same should have come out in cross examination for which opportunity was 32. The High Court has not held that the respondents were successful in challenging the witnesses version of events despite said witness was cross examined by the respondents but by selectively overlooking the deficiencies in the respondent s case 22. Equally we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of examining evidence in accident claim cases ought not to be to find fault with non­examination of some best eye­witnesses as may happen in a criminal trial but instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz4 up by the claimants was required to be decided by the learned and certainly not on the basis of proof beyond reasonable one of the contesting respondents in the Claim Petition who along in the result of the case. If the owner­cum­driver of the car were taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement further suggests that he was himself at fault. The High Court therefore ought 24. Further little reliance can be placed on the contents of the FIR First the author of the FIR that is Praveen Kumar Aggarwal does not lodged two days after the accident on 27.03.2009. The FIR recites BHU Varanasi for treatment even though as per the medical report this took place only on 26.03.2009 the day after the accident Therefore the belated FIR appears to be an afterthought attempt to the High Court to disbelieve Ritesh Pandey AW­3 on the other hand 25. Adverting to the claimants’ appeal for enhancement of raised on their behalf as to how the compensation assessed by the Tribunal was inadequate except that in view of the authoritative pronouncement of this Court in National Insurance Co Ltd v Pranay Sethi5 the claimants are entitled to an increase of 40 the High Court is set aside and the appellants are held entitled to compensation as awarded by the Tribunal besides 40% addition in the annual income of the deceased towards ‘future prospects’. The Motor Accident Claims Tribunal Sikaris directed to re­ held entitled to interest @ 8.5% as per the Tribunal’s award on the entire amount of compensation. The Tribunal shall re­calculate the compensation within one month and the insurance company shall