PUSHPENDRA SINGH BHATI,J. - (1.) Both these appeals have been preferred by the appellants against the judgment and award dated 12.3.1999 passed by the M.A.C.T., Udaipur.
(2.) Learned Counsel for the appellants submits that the F.I.R. of the accident was lodged after a delay of one month i.e. for the accident which happened on 9.6.1989, the F.I.R. was lodged on 6.7.1989. Learned Counsel for the appellants submits that no explanation what to say of satisfactory explanation has been furnished for lodging the delayed F.I.R. when the Police Station itself was half kilometer from the place of accident. Learned Counsel for the appellants in this regard relied upon the judgment of this Court in the case of Bhanwar Lal Verma Vs. Sharad Tholia and Ors., reported in 2006(2) RLW (Raj.) 1306, relevant paras No. 6 to 12 whereof read as under :- '6. A bare perusal of the award reveals that the conclusions drawn by the learned Tribunal are based on the progress and failure of the criminal case, which was initiated by the lodging of the FIR. The learned Tribunal presumes that the outcome of a civil proceeding would be co-related to and would depend on the outcome of the criminal proceeding. Such a presumption is legally unwarranted. For, such a presumption supposes that the success of a claim petition is dependent on the success of the criminal trial. It further presupposes that the existence of FIR, of a criminal proceeding is a sine quo non for the initiation of a claim petition. Such a apriori thinking treats the F.I.R. and the criminal proceeding as a substantive piece of document, whereas an F.I.R. is only a corroborative evidence. Although the lodging of F.I.R. in an accident claim is desirable, but its existence or non-existence cannot be made a basis for the success of a claim filed by an injured person. Considering the fact that a large population lives in desolate and remote area where the nearest Police Station might be inaccessible, to insist on the existence of F.I.R. for the success of a claim petition, would be to cause injustice to such claimants. In the case of New India Insurance Co. Vs. Smt. Pinki and Ors., S.B. Civil Misc. Appeal No. 630/2000, decided on 15.3.2001, the Insurance Company had argued that according to Rule 10.2 of the Rajasthan Motor Vehicles Rules, 1990 (henceforth to be referred to as the Rules of 1990, for short) it is mandatory that a copy of the F.I.R. should accompany the claim petition. In case of copy of the F.I.R. is not attached with the claim petition, then the claim petition is not maintainable. However, the High Court rejected the said contention and held that the use of the word "Shall" in Rule 10.2 of the Rajasthan Motor Vehicles Rules, 1990 would not make the provision a mandatory one. Thus, merely because a F.I.R. is not lodged, that by itself is no ground for rejecting the claim petition. It further rejected the argument of the Insurance Company that in absence of a FIR, the claim petition would not be maintainable. Therefore, in the present case the entire approach of the learned Tribunal is askew. Thus, the learned Tribunal's logic is perverse. 7. In the present case, the appellant has examined four witnesses. AW.1 is the appellant himself, AW.2 is his son Prakash Chand, PW.3 Rajmal is a chance witness and AW.4 is Dr. M.K. Mathur, the Doctor who has treated the appellant. Prakash Chand in his testimony clearly states that the family members were under an impression that since his father was taken to the Hospital in an injured state, the Doctors at the Hospital would have informed the police then and there. It was only when they realized that no such information was given by the Doctors, that the appellant lodged a F.I.R. with the police. Thus, under a mistake of fact the F.I.R. was not lodged immediately. Moreover, at the time of the accident Prakash Chand was merely a 19 years old who cannot be expected to know the intricacies of the criminal justice system. Therefore, there is a reasonable explanation for the delay in lodging of the FIR. Hence, the learned Tribunal was not justified in dismissing the claim petition on the ground of inordinate delay in lodging of the FIR. 8. The learned Tribunal has not believed AW.3 Rajmal since he is a colleague of the appellant. But, merely because one of the witnesses is not creditworthy, it would not demolish the case of the claimant himself. Thus, the learned Tribunal has erred in throwing out the baby with the water. 9. Undoubtedly, the most important witness in the case is the injured himself. But, the learned Tribunal has disbelieved the appellant for frivolous reasons. According to the appellant, while he was driving the Scooter, the offending Car came from behind and without blowing its horn, the Car driver tried to overtake the Scooter on the right-hand side. Since the Car was being driven in a rash and negligent manner, it hit the Scooter on the back of the scooter on the right side. Consequently, the brake light cover and the number plate were damaged and the right hand side of the Scooter we badly scratched. Because of the said accident, the appellant lost his balance and fell. Resultantly, he broke his hip joint for which he had to be operated upon. This narration of fact is also supported by the site plan (Ex.6), by the Recovery Memo of the Scooter (Ex.7) and the Recovery Memo of the Car (Ex.9). Interestingly, according to the recovery memos of the Scooter and the Car, while the Scooter has suffered a damage on the right hand side, the Car has suffered a damage on the left hand side. Hence, apparently, the two vehicles had collided with each other. These two memos alongwith the site plan clearly corroborate the appellant's testimony. The learned Tribunal has failed to discuss the site plan and the recovery memos. Therefore, the learned Tribunal has ignored the corroborative and documentary evidence, which were readily available on record. 10. The learned Tribunal is expected to adjudge a case on the basis of the evidence produced in the case, without giving too much of importance to the outcome of the criminal trial. It is, Indeed, a settled position of law that the burden of proof is different in a criminal trial and in civil proceeding. In the case of Naveen Kumar Chopra Vs. Surendra Kumar and Ors., S.B. Civil Misc. Appeal No. 506/92, decided on 18.5.1994 this Court held as under: It is trite law that Party is required to prove its case, which sets up the particular case. The claimant was required to establish that he met an accident due to rash and negligent driving of the Scooter driven by Surendra Kumar Malholra. Once this fact was established, the burden shifted on the respondents to show that the accident did not happen in the way alleged by the claimant. It is to be remembered that in a criminal case the prosecution is required to prove its case beyond shadow of reasonable doubt. However, in civil cases, claimant can succeed on the basis of preponderance of probabilities only. In a motor accident claim, the claimant is not required to prove his case beyond shadow of reasonable doubt. It would suffice if he has proved his case on the basis of preponderance of probabilities. Further, a Civil Court is not found by the finding of a criminal trial. Moreover, merely because the appellant did not file a protest petition against the negative Final Report, from such an omission an inference cannot be drawn that the claim petition is a baseless and a frivolous one. Since the appellant's testimony on the factum of the accident has not been demolished, there is no cogent reason for not believing him. Therefore, the reasoning of the learned Tribunal is lop-sided. 11. Although the Tribunal has disbelieved the appellant's testimony, but it still has concluded that the appellant is entitled to a compensation of Rs. 30,000/-. According to AW.4, Dr. Mathur, the petitioner has suffered a permanent disability of 12%. Admittedly, a steel road was placed inside the appellant's body in order to hold the bones of the hip joint together. Consequently, the appellant has difficulty in walking and in using his leg properly. Considering (he medical expenses incurred by (he appellant, considering the pain and agony suffered by the appellant, considering the existence of disability, considering the future inconvenience, disappointment, frustration and mental stress in life, we deem it proper to enhance the compensation from Rs. 30,000/- to Rs. 1,00,000/-. We are fortified in our decision by the guidelines established by the Hon'ble Supreme Court in the case of R.I. Haltangadi Vs. Pest Control (India) Ltd., 1995 ACJ 3GG. 12. Thus, we allow this appeal and direct the respondents to pay the appellant a compensation of Rs. 1,00,000/- alongwith interest of 936 p.a. from the dale of filing of the claim petition. We further direct the learned Tribunal to realize the compensation from respondent No. 3 within a period of two months. No orders as to costs.
(3.) Learned Counsel for the respondents opposes the submissions made on behalf of the appellants. However, he could not furnish any explanation for the lodging of the delayed FIR.;