Tarlok Singh Chauhan JUDGMENT
Tarlok Singh Chauhan, J.
1. The appellant is the claimant whose claim petition has been dismissed by the learned Motor Accidents Claim Tribunal (for short 'Tribunal') and aggrieved thereby has filed the instant appeal.
2. The appellant filed a claim petition under Section 166 of the Motor Vehicle Act (for short 'Act') on account of multiple grievous injuries sustained by him due to accident and collision between vehicle No. HP-32-1629 (Jeep) being driven by respondent No. 2 and vehicle No. HP-30-0128 (Scooter) being driven by respondent No. 5 at Jarod, Tatapani-Karsog road, on 14.01.2002, at about 10:30 a.m. The appellant was pillion rider on the scooter and on account of having sustained grievous injuries in the accident, he was initially taken to Sunni hospital from where he was referred to Indira Gandhi Medical College and Hospital, Shimla (for short 'IGMC'), where he remained admitted from 14.01.2002 to 17.01.2002. According to him, he could not fully recover from the injuries as is evident from the disability certificate issued by a duly constituted Medical Board certifying 15% permanent disability. It was alleged that the accident in question was a direct result of the rash and negligent driving of the Jeep which hit the scooter being driven by respondent No. 5 and on such basis, the appellant claimed a compensation of Rs. 7,00,000/- (Rupees seven lacs) from the respondents jointly and severally.
3. Respondents No. 1 and 2 contested the petition by fling a joint reply wherein it has been submitted that no accident has taken place due to rash and negligent driving of respondent No. 2 and they had been falsely implicated in this case. It was denied that the scooter was struck by the Jeep. As a matter of fact, respondent No. 2 was driving his Jeep at a very slow speed on his own side while respondent No. 5 was driving the scooter at a very high speed in a rash and negligent manner on the wrong side and struck against the Jeep as he could not control the scooter. The appellant had sustained the minor injuries. After the accident, respondent No. 2 had taken the appellant to Sunni hospital for first-aid and thereafter informed the police. It was solely on account of the respondent No. 5 that accident in question had taken place.
4. Respondent No. 3 is the insurer of the Jeep, who contested the petition by fling reply wherein preliminary objection regarding maintainability was raised on the ground that respondent No. 2 (driver of the Jeep) was not having a valid and effective driving licence at the time of accident. Moreover, the particulars of insurance policy had not been produced nor disclosed. So, in absence thereof, there was no contract of insurance of replying respondent with respondent No. 1 (owner of Jeep). It was lastly averred that the accident had occurred due to rash and negligent driving of respondent No. 5 and not on account of rash and negligent driving of respondent No. 2.
5. Respondent No. 4, the owner of the Scooter in his reply admitted that on 14.01.2002, the appellant was coming from Tatapani to Karsog on Scooter of replying respondent, which was being driven by respondent No. 5 and the same was hit by Jeep being driven by respondent No. 2 in a rash and negligent manner, as a result of which, the appellant and respondent No. 5 had fallen down and sustained injuries.
6. Respondent No. 5 did not contest the petition and was proceeded ex parte.
7. Respondent No. 6 is the insurer of the Scooter, contested the petition by fling reply, wherein preliminary objection was raised to the effect that there was a breach of terms and conditions of the insurance policy and the accident had taken place due to negligence on the part of respondent No. 2. On merit, the averments made in the claim petition were denied for want of knowledge.
8. On the pleadings of the parties, the learned Tribunal on 23.08.2007, framed the following issues:-
1. Whether the petitioner sustained multiple grievous injuries due to motor vehicle accident of Jeep No. HP-32-1629 and scooter No. HP-30-0128 on 14.01.2002 at Jarod Curve on Karsog-Tatapani road as a result of rash and negligent driving of Jeep No. HP-32-1629 by respondent No. 2, as alleged? OPP.
2. If issue No. 1 is proved in affirmative, whether the petitioner is entitled for compensation, if so to what amount and from whom? OPP.
3. Whether the petitioner sustained injuries due to rash and negligent as well as wrong acts of respondent No. 5 as alleged? OPR-1 & 2.
4. Whether the petition is not maintainable against the respondent No. 3 as the respondent No. 2 was not having valid and effective Driving Licence to drive the Jeep No. HP-32-1629 as alleged? OPR-3.
5. Whether there is no contract of Insurance between respondent No. 3 and the respondent No. 1 the owner of Jeep No. HP-32-1629 as alleged? OPR-3.
6. In case there is contract between the respondent No. 3 and the respondent No. 1 as to whether, respondent No. 1 committed breach of the terms and conditions of the Insurance Policy as alleged? OPR-3.
7. Whether there is breach of terms and conditions of the Insurance Policy as the driver of the scooter was not having valid and effective driving licence at the time of the accident? OPR-6.
8. Whether the alleged accident had taken place due to sheer negligence on the part of the respondent No. 2 and thus the respondent No. 6 is not liable to indemnify the petitioner? OPR-6.
9. Relief.
9. After recording evidence and evaluating the same, the learned Tribunal dismissed the petition by holding that the appellant had, in fact, failed to prove on record that the accident caused due to rash and negligent driving of the Jeep being driven by respondent No. 2.
10. Aggrieved by the award passed by the learned Tribunal, the appellant has filed the instant appeal.
11. It is vehemently argued by Shri Atul Jhingan Advocate, that the findings recorded by the learned Tribunal are perverse in as much as it has ignored the pleadings as also the oral and documentary evidence and further has not appreciated the law on the subject, and therefore, the impugned award deserves to be set aside by awarding compensation as sought for in the claim petition.
12. He would further argue that the learned Court below has misdirected itself by assuming that the appellant had claimed compensation only from respondents No. 1 to 3, whereas his specific prayer in the claim petition was that he be paid compensation by the respondents jointly and severally or from any of the respondents who may be adjudged liable by the learned Court. He further contended that even if respondent No. 5 was found to be negligent then the learned Tribunal should have fixed the liability on the said respondents to pay the compensation and could not have dismissed the claim petition.
13. On the other hand, Shri Ashwani K. Sharma, Sr. Advocate, duly assisted by Shri Jeevan Kumar Advocate, would claim that the award is in consonance with the law and calls for no interference.
I have heard learned counsel for the parties and have gone through the records of the case.
14. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another v. State Represented by the Public Prosecutor and another MANU/SC/1709/2009 : (2009) 10 SCC 206 wherein it was held as under:-
"26. In M.S. Narayanagouda v. Girijamma & Another MANU/KA/0052/1977 : AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined 'perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition
PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition
PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition
PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition)
PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition
PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. MANU/SC/0007/2003 : (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8
"8. ...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others MANU/SC/0793/1998 : (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10)
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of 'perverse' has been examined in H.B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7)
"7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
15. In S.R. Tiwari v. Union of India MANU/SC/0566/2013 : (2013) 6 SCC 602, after referring to the decisions of the Hon'ble Supreme Court, starting with Rajinder Kumar Kindra v. Delhi Administration, MANU/SC/0285/1984 : (1984) 4 SCC 635, it was held at para 30 as under:-
"30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [MANU/SC/0285/1984 : (1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805], Kuldeep Singh v. Commr. of Police [MANU/SC/0793/1998 : (1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677], Gamini Bala Koteswara Rao v. State of A.P. [MANU/SC/1669/2009 : (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[MANU/SC/0580/2010 : (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179].)"
16. What is 'perverse' has further been considered by this Court in RSA No. 436 of 2000, titled 'Rubi Sood and another v. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25. .... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
This Court has also dealt with other aspects of perversity.
17. Thus, it can be taken to be settled that a judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court's entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse.
18. Bearing in mind the aforesaid exposition of law, it would be noticed that no doubt the prayer made vide clause-D in the petition is to the effect that "after due enquiry and trial, the petition may kindly be allowed and petitioner may kindly be awarded compensation amounting to Rs. 7,00,000/- (Rupees Seven Lacs) from the respondents jointly and severally or from any of the respondent, who may be adjudged liable by the Hon'ble Court and justice be done."
19. However, the prayer clause cannot be read in isolation and will have to be read with the other allegations especially those of negligence as was set out in the claim petition in para-1 of the petition. The appellant has made specific allegations regarding rash and negligent driving by respondent No. 2, which reads thus:-
"The petitioner having sustained multiple, grievous injuries due to Motor Vehicle accident of Jeep No. HP-32-1629 and Scooter No HP-30-0128, which took place on 14.01.2002, at Jarod curve on Karsog-Tatapani raod, at about 10:30 a.m. due to rash and negligence of the driver of the Jeep which struck the Scooter."
20. Similar averments are reiterated in para -24 of the claim petition, which deals with the cause of the accident and brief description and in Clause-B thereof, it has been stated that "with a view to save his skin, respondent No. 2 manipulated to register the false case against the respondent No. 5, which ought to have been registered against the respondent No. 2, as respondent No. 2 has caused the said accident due to his rash and negligent driving."
21. It is more than settled that proof of rashness and negligence on the part of the driver of the vehicle is sine qua non for maintaining an application under Section 166 of the Act. The rashness and negligence in this case has been attributed by the appellant specifically and only on the part of respondent No. 2 and admittedly no such allegations have been levelled against respondent No. 5 and, therefore, in the given circumstances the learned Tribunal could not have held respondent No. 5 to be liable much less fasten the liability to pay the award even if it had so chosen to pass in favour of the appellant.
22. At this stage, Shri Atul Jhingan, Advocate, would argue that in claim petition the standard of proof is on different footing as compared to the standard of proof requires in criminal cases. In a claim petition only prima facie proof is required and strict pleadings and proof are not required.
23. Strong reliance is placed by him on a judgment rendered by this Court in OIC v. Daljeet Kaur, MANU/HP/1759/2016 : 2016 (6) ILR (HP) 1173, 2017 (6) AIIMR (Jou) (18), wherein it was observed as under:-
[15] It is beaten law of the land that in claim petitions, the standard of proof is on different footings as compared to the standard of proof required in criminal cases. In a claim petition, only prima facie proof is required and strict pleadings and proofs are not required. [16] My this view is fortified by the judgment rendered by the Apex Court in the case titled as Dulcina Fernandes and others v. Joaquim Xavier Cruz and another, MANU/SC/1028/2013 : 2013 10 SCC 646. It is apt to reproduce relevant portion of paras 8 and 9 of the judgment herein:
"8. In United India Insurance Co. Ltd. v. Shila Datta, MANU/SC/1256/2011 : 2011 10 SCC 509, while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow:
"10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.
* * *
(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation.......
(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry."
9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta, MANU/SC/1256/2011 : 2011 10 SCC 509, SCC p.519)
"10. ......... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute."
24. Support is further sought to be drawn from another judgment rendered by this Court in Raksha Devi v. Pradeep Kumar, MANU/HP/1751/2016 : 2016 (6) ILR (HP) 817, 2017 (5) All MR (Jou) 74, wherein, it was observed as under:
[8] It is a beaten law of the land that strict proof is not required, but the claimant has to prove prima-facie that the accident is outcome of rash and negligent driving of the driver.
[9] My this view is fortified by the judgment of the Apex Court in the case titled as N.K.V. Bros. (P.) Ltd. v. M. Karumai Ammal and others, MANU/SC/0321/1980 : 1980 AIR(SC) 1354. It is apt to reproduce relevant portion of para 3 of the judgment herein:
"3. Road accidents are one of the top killers in our country, specifically when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accident Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour". Indeed, the State must seriously consider no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Art. 41 of the Constitution lays the jurisprudential foundation for state relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Court should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard."
[10] The Jammu and Kashmir High Court in the case titled as Oriental Insurance Co. v. Mst. Zarifa and others, MANU/JK/0014/1995 : 1995 AIR(J&K) 81, held that the Motor Vehicles Act, 1988, Kashmir 81, for short 'the MV Act' is Social Welfare Legislation and the procedural technicalities cannot be allowed to defeat the purpose of the Act. It is profitable to reproduce para 20 of the judgment herein:
"20. Before concluding, it is also observed that it is a social welfare legislation under which the compensation is provided by way of Award to the people who sustain bodily injuries or get killed in the vehicular accident. These people who sustain injuries or whose kith and kins are killed, are necessarily to be provided such relief in a short span of time and the procedural technicalities cannot be allowed to defeat the just purpose of the Act, under which such compensation is to be paid to such claimants."
[11] It would also be profitable to reproduce relevant portion of para 12 of the judgment of the Apex Court in the case titled as Sohan Lal Passi v. P. Sesh Reddy and others, MANU/SC/0662/1996 : 1996 AIR(SC) 2627
"12. .................. While interpreting the contract of insurance, the Tribunals and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of sub-section (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known."
[12] The Apex Court in a case titled Dulcina Fernandes and others v. Joaquim Xavier Cruz and another, MANU/SC/1028/2013 : 2013 10 SCC 646 has laid down the same principle and held that 646 strict proof and strict links are not required.
25. Obviously, there can be no quarrel with the proposition as laid down in the aforesaid two judgments. But the moot question is whether the ratio therein apply to the facts of the instant case. There is a marked difference between insisting upon strict pleadings and admission by a party. Pleadings depending upon the nature of the lis have to be interpreted either strictly or liberally. Strictly in the sense that it has to fulfill the requisite standard as may be prescribed by the statute like Code of Civil Procedure. Liberal proceedings would essentially mean general allegations set out in a layman format. However, allegations as set out against the opposite party which would be in the nature of or partake the form of an admission, again will not be ignored even while construing the pleadings liberally.
26. The appellant having categorically admitted that there was no negligence or rashness on the part of respondent No. 5 cannot now turn around and claim that the learned Tribunal after having determined the position ought to have fastened the same upon respondent No. 5 in view of the prayer made by him in the claim petition.
27. As regards, the other parts of the award whereby it has been held that the appellant has failed to prove on record that the accident had been caused due to rash and negligent driving of the Jeep by respondent No. 2 such findings are otherwise exceptional and call for no interference.
28. It is duly proved on record that FIR in the instant case was lodged by respondent No. 2, wherein a clear and specific allegations of rash and negligent driving was set out against respondent No. 5 and said allegations have not been controverted by respondent No. 5, who not only failed to contest the proceedings before the learned Tribunal but has failed to put in appearance even before this Court.
29. At this stage a faint attempt is made by the learned counsel for the appellant to contend that FIR was manipulated, as the accident in question had taken place on 14.01.2002 whereas the FIR came to be registered on 16.01.2002.
30. I am afraid even this contention of the appellant cannot be accepted for the simple reason that in case the appellant felt that the FIR was manipulated, then nothing stopped him from assailing the same in accordance with law and having failed to do so, it is not now open for him to assail the same on the ground as canvassed.
31. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.
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