# Bindheshwari Devi Srivastava & Ors v. Ramesh Chandra Maurya & Ors

- **Citation:** (2024) 6 ILRA 180
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-11
- **Case number:** First Appeal From Order No. 120 of 2012
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bindheshwari-devi-srivastava-ors-v-ramesh-chandra-maurya-ors-52133
- **Pages:** 9

## Headnote

Act,
1988-Section
173-The
appellants
sought
compensation,
claiming
the
accident was due to the negligent driving
of the truck driver-Tribunal dismissed the
claim,
attributing
negligence
to
the
deceased-inconsistencies found in the
defenses evidence-The high court set
aside the Tribunal dismissal and ruled in
favour of the appellants and reaffirms the
legal principles the burden of proof lies
initially with the claimants to establish
6 All. Bindheshwari Devi Srivastava & Ors. Vs. Ramesh Chandra Maurya & Ors.
181
negligence, but once prima facie case is
made, the burden shifts to the opposite
party-the assessment of evidence must be
done
meticulously,
considering
all
relevant
factors,
including
witness
testimonies and circumstantial evidence.
(Para 1 to 23)

B. The doctrine res ipsa loquitor shifts the
burden of proof to the defendant to show
that there was no negligence on their part
once initial presumption is established.
There is no evidence of any voluntary
action or contribution to the accident by
the deceased. The doctrine allows for an
inference that the accident is of a kind
that ordinarily does not happen in the
absence of negligence. (Para 4 to 21)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

180 INDIAN LAW REPORTS ALLAHABAD SERIES
and
for
apprehending
the
accused
persons,
failing
which,
contempt
proceedings must be initiated against
such delinquent police officers if no
sufficient cause is shown.(Para 2)

The writ petition is disposed of. (E-6)

List of Cases cited:

Lalita Kumari Vs Govt. of U.P. & ors. (2014) 2
SCC 1

(Delivered by Hon'ble Attau Rahman
Masoodi, J.
&
Hon'ble Ajai Kumar Srivastava-I, J.)

1. Heard learned counsel for the
petitioner and learned Additional Government
Advocate for the respondents.

2. Learned counsel for the petitioner
submits that petitioner has approached
opposite parties for lodging the F.I.R.,
however no heed has been paid in the matter
in question. So, the petitioner has approached
this Court with the following main relief:-

"A writ, order or direction in the
nature of Mandamus directing opposite party
no. 1 to take appropriate action against to fix
accountability of officer with respect to noncompliance of the guideline issued by
Hon'ble Supreme Court of India in case of
Lalita Kumari versus Govt. of U.P. & others
and
as
well
as
issue
the
circular
no.15011/91/2013-SC/ST-W
on
dated
06.02.2014 Government of India Ministry of
Home Affairs Center state division as
annexure no 1 to this writ petition."

3. After hearing learned counsel for
the parties and going through the record as
well as taking into consideration the law
laid down by Hon'ble Apex Court in the
case of Lalita Kumari Vs. Government of
Uttar Pradesh and others reported in
(2014) 2 SCC 1, we hereby direct the
petitioner to approach opposite party No.1
in respect to the grievances which he has
raised in the present writ petition and
thereafter opposite party no.1 shall take
appropriate steps in the matter in question
as per law laid down by Hon'ble Apex
Court in the case of Lalita Kumari (supra).

4. With the above observations, the
writ petition is disposed of.
----------
(2024) 6 ILRA 180
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.06.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 120 of 2012

Bindheshwari Devi Srivastava & Ors.
 ...Appellants
Versus
Ramesh Chandra Maurya & Ors.
 ...Respondents

Counsel for the Appellants:
Somesh Tripathi, Jay Krishna Shukla

Counsel for the Respondents:
O.P. Srivastava

A. Motor Accident Claim-Motor Vehicles
Act,
1988-Section
173-The
appellants
sought
compensation,
claiming
the
accident was due to the negligent driving
of the truck driver-Tribunal dismissed the
claim,
attributing
negligence
to
the
deceased-inconsistencies found in the
defenses evidence-The high court set
aside the Tribunal dismissal and ruled in
favour of the appellants and reaffirms the
legal principles the burden of proof lies
initially with the claimants to establish
6 All. Bindheshwari Devi Srivastava & Ors. Vs. Ramesh Chandra Maurya & Ors.
181
negligence, but once prima facie case is
made, the burden shifts to the opposite
party-the assessment of evidence must be
done
meticulously,
considering
all
relevant
factors,
including
witness
testimonies and circumstantial evidence.
(Para 1 to 23)

B. The doctrine res ipsa loquitor shifts the
burden of proof to the defendant to show
that there was no negligence on their part
once initial presumption is established.
There is no evidence of any voluntary
action or contribution to the accident by
the deceased. The doctrine allows for an
inference that the accident is of a kind
that ordinarily does not happen in the
absence of negligence. (Para 4 to 21)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Mallamma Vs Balaji & Ors ( 2003) 2 T.A.C.
482

2. S.Kaushnuma Begum & ors Vs The New India
Assr. Co.Ltd. & Ors (2001) AIR Supreme Court
485

3.
The
New
India
Assr.
Co.
Ltd.
Vs
Pazhaniammal & ors (2011) 4 TAC 481

4. United India Fire & Gen. Ins. Co. Ld. Vs.
Maddali Suseela [1979) ACJ 110

5. Smt. Kaushnuma Begum Vs New India Assr.
Co. Ld (2001) ILR Kar 493

6. Pushpabai Parshotam Udeshi Vs Ranjit G.& P.
Co. Pvt. Ltd. [(1977) 2 SCC 745 : AIR 1977 SC
1735.]

7. Sunita Vs Raj. SRTC (2020) 13 SCC 486

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri Somesh Tripathi,
learned counsel for the appellant-claimants
and Shri O.P.Srivastava, learned counsel
for the respondent no.3. None appeared on
behalf of respondents no.1 and 2 despite
the notice has been served upon them
personally.

2. This First Appeal From Order has
been filed under Section 173 of the Motor
Vehicles Act, 1988 against the judgment
and order dated 07.01.2012 passed by the
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.1, Raebareli in M.A.C. No.270 of 2010;
Bindheshwari Devi Srivastava and others
Versus Ramesh Chandra Maurya and
others, by means of which the Claim
Petition filed by the appellant-claimants has
been dismissed.

3. Learned counsel for the appellant
submitted that on 07.08.2010 at about 4.00
in the evening when the deceased Ashok
Kumar Srivastava was waiting for some
person on the side of Lucknow-Allahabad
Highway near the gate of Pragatipuram
Colony near his motorcycle, the Truck,
which was being driven rashly and
negligently by its Driver dashed to the
deceased and his Motorcycle from the back
side and crushed the Motorcycle as well as
the deceased, who succumbed to the
injuries suffered in the accident. The
accident was an outcome of the rash and
negligent driving of the driver of the Truck,
but learned Tribunal without considering it
and applying the principle of 'res ipsa
loquitur' wrongly and illegally held that the
accident was on account of the negligence
of the deceased, therefore, the appellantclaimants
are
not
entitled
for
any
compensation. He further submitted that
the accident on 07.08.2010 at 4.00 in the
evening at Lucknow-Allahabad Highway is
neither disputed nor the death of the
deceased on account of the said accident,
but learned Tribunal while applying the
principle of 'res ipsa loquitur' and merely
182 INDIAN LAW REPORTS ALLAHABAD SERIES
on the basis of technical report of the
vehicles held that the accident has occurred
due to negligence of the deceased, but
failed to consider that when the accident
was on the Highway and the accident had
occurred by the Truck which was coming
from the opposite direction, it cannot be
said that there was no negligence on the
part of the Driver of the offending Truck,
even if there may be some negligence on
the part of the deceased, whereas there was
no negligence on his part.

4. Learned counsel for the appellantclaimants further submitted that the learned
Tribunal failed to consider that the First
Information Report was lodged in regard to
the accident against the Truck Driver and
the charge-sheet has been filed against him,
therefore, prima facie, rash and negligent
driving of the Driver of the Truck is
proved, which is sufficient to award the
compensation.

5. On the basis of above, submission
of learned counsel for the appellantclaimants is that the impugned judgment
and order passed by the Motor Accident
Claims Tribunal is not sustainable and
liable to be set aside and the application for
compensation filed by the appellantclaimants is liable to be allowed and the
widow, daughters and minor sons and the
mother of the deceased, who was an
employee of I.T.I. Limited, Raebareli and
working on the post of Senior Technical
Assistant are entitled for the compensation..
Learned counsel for the appellant-claimants
relied on Mallamma Versus Balaji and
others; 2003 (2) T.A.C. 482 (Kant.),
S.Kaushnuma Begum and others Versus
The New India Assurance Co.Ltd. and
others; AIR 2001 Supreme Court 485
and The New India Assurance Co. Ltd.
Versus
Pazhaniammal
and
others;
(2011) 4 TAC 481.

6. Per contra, learned counsel for the
respondent no.3; the National Insurance
Company Limited vehemently opposed the
submissions of learned counsel for the
appellant-claimants. He submitted that the
deceased had suffered the injuries in the
accident on account of his own negligence
and succumbed to the same. As per own
case
of
the
appellant-claimants
the
deceased was standing on the side of the
road facing towards Lucknow when the
Truck came from the opposite side and he
got injuries in the accident, whereas if he
was standing facing towards the side from
which the Truck was coming, he could
have saved himself but he had not tried to
save him. He further submitted that since
the pleading in the claim petition and the
evidence in regard to occurrence was
contradictory, therefore learned Tribunal has
rightly and in accordance with law applied
the principle of 'res ipsa loquitur' and held
that the accident had occurred on account of
negligence of the deceased, therefore the
appellant-claimants are not entitled for any
compensation and the claim petition has
rightly been dismissed. He further submitted
that the technical reports of the vehicles also
indicate that the accident was on account of
negligence of the deceased. On the basis of
above, submission of learned counsel for the
respondent no.3 is that the impugned
judgment and order has been passed in
accordance with law. There is no illegality or
infirmity in it. The appeal has been filed on
misconceived and baseless grounds. It is
liable to be dismissed.

7. I have considered the submissions
of learned counsel for the parties and
perused the records.
6 All. Bindheshwari Devi Srivastava & Ors. Vs. Ramesh Chandra Maurya & Ors.
183

8. The claim petition was filed by the
appellant-claimants alleging therein that on
07.08.2010 at about 4.00 in the evening the
deceased, who was an employee of I.T.I.
Ltd., Raebareli working on the post of
Senior Technical Assistant, was waiting for
some person on the side of LucknowAllahabad
Highway
alongwith
his
motorcycle having Registration No.UP-33P-3373,
when
the
Truck
having
Registration
No.UP-78-B-4281
coming
from the side of Ratapur Crossing being
driven rashly and negligently by its driver
dashed to the deceased and his Motorcycle
from the back side and crushed the
Motorcycle as well as the deceased, who
succumbed to the injuries sustained in the
accident in the District Hospital, Raebareli.
First Information Report of the accident
was
lodged
vide
Case
Crime
No.1038/2010, under Sections 279, 338,
427 and 304-A IPC at Police Station-Mill
Area, District-Raebareli against the Driver
of Vehicle No.UP-78-B-4281. The Truck
was apprehended on the spot of accident by
the public, which was got released by the
owner from the Court and the driver has
been released on bail. The charge sheet has
been filed against the Driver of the Vehicle
and the criminal case is going on. The
deceased was working in I.T.I. Ltd.,
Raebareli and drawing monthly salary of
Rs.18,612.58 and was the only earning
member of his family and accordingly the
compensation
of
Rs.52,28,000/-
was
claimed.

9. A common written statement was
filed by the respondents no.1 and 2 i.e. the
owner and Driver of the Truck bearing
Registration No.UP-78-B-4281 denying the
averments made in the claim petition.
However it is admitted that the respondent
no.1 is registered owner of the Truck and it
is insured by the National Insurance
Company Ltd., Raebareli, which was valid
from 15.07.2010 to 14.07.2011. The
respondent no.2 is the Driver of the Truck
No.UP-78-B-4281, who is having a valid
Driving Licence issued from the Regional
Transport Officer, Raebareli, which is valid
from 01.04.2010 to 31.03.2013. The
respondents no.1 and 2 denied the accident
from the said Truck. However it was stated
that since the Truck was insured, therefore,
the respondent no.3-National Insurance
Company Ltd. is liable to pay the
compensation, if any.

10. The respondent no.3-National
Insurance Company Ltd. filed written
statement denying the averments made in
the claim petition. It was stated in the
written statement that the Truck and the
Motorcycle were not involved in the
accident. In the alternative, it was pleaded
that if the offending Truck No.UP-78-B4281 is found to have involved in the
accident, the Insurance Company is entitled
for benefit of Section 147 of the M.V.Act
because it was not being driven in
accordance with law and terms and
conditions of the policy and it was being
driven without Truck permit, fitness,
Registration Certificate and valid and
effective Driving Licence of the Driver. It
was also pleaded that the Insurance
Company cannot be held liable because the
details of the driving licence of the Driver
have not been placed on record by the
owner in accordance with Section 134(c) of
the M.V.Act. The concerned Police Station
has
also
not
provided
the
relevant
information in terms of Section 158(c) of
the M.V.Act. It was also pleaded that on
account of negligence of the deceased the
Insurance Company is not liable to pay the
compensation.
The
First
Information
Report, post-mortem report etc. have not
been provided to the Insurance Company. It
184 INDIAN LAW REPORTS ALLAHABAD SERIES
was also pleaded that the Truck was not
being driven rashly and negligently, rather
the accident had occurred on account of
contributory negligence of the deceased.

11. On the basis of pleadings of the
parties six issues were framed by the
Tribunal.
Smt.
Bindheshwari
Devi
Srivastava
i.e.
the
appellant-claimant
No.1/wife of the deceased appeared as
CPW-1, Mohd. Nazim as CPW-2 and
Chandra Kumar Srivastava, Senior Office
Assistant of I.T.I. Ltd., Raebareli as CPW3. The relevant papers were also placed on
record. Shri Shiv Shanker Maurya, the
Driver of the Truck appeared as D.W.1.
The Registration Certificate, Insurance
Certificate, Driving Licence etc. were
placed on record by the respondents no.1
and 2. No oral evidence was adduced by
respondent no.3. However the accident
inspection report, Panchnama, sketch plan
etc. were placed on record by the
respondent no.3.

12. After considering pleadings of the
parties and affording opportunity of hearing
the Tribunal came to the conclusion that the
evidence
adduced
by
the
appellantclaimants
does
not
match with
the
averments made in the claim petition that
the accident had occurred, while the
deceased was standing on the right side of
Lucknow-Allahabad highway near gate of
Pragati Puram Colony, the truck coming
from the side of Lucknow dashed from the
back side. As per CPW-2, the deceased was
standing facing towards Lucknow and the
truck had come from the side of Lucknow,
wherefore the Truck could not have dashed
from the back side if his face was towards
Lucknow, from which side the truck was
coming and according to him the deceased
had not tried to save him. Thereafter the
Tribunal applying principle of 'res ipsa
loquitur' and examining the technical
reports of the vehicles and considering that
the front show of the Truck at Sl.No.11 in
the technical report is damaged from the
right side and at Sl.No.19 the right light is
in order, whereas the right indicator is
damaged and the front bumper on the right
side is also damaged, on account of which
it appears that the deceased while coming
from I.T.I, Ltd., Raebareli from his service,
without any evidence in this regard and as
to what is the timing of office and the way
of coming from office, turned from the left
side of the road to the right side when the
Truck coming from the side of Lucknow
would have dashed the left side of handle
of the Motorcycle in which the deceased
suffered injuries on account of his own
negligence. However learned Tribunal
failed to consider that CPW-2 stated that
the deceased was standing facing Lucknow
side, but immediately thereafter stated that
the deceased was standing on his left side
at about 10 steps away and since his face
was on the other side he could not see the
speed and manner of driving of truck and
he had seen the accident. Therefore if the
deceased was standing on the left side of
the CPW-2, then he could not have seen his
actions, however he has categorically stated
that he had seen the accident, but the
tribunal failed to consider it.

13. The learned tribunal without any
evidence and examination of the person
who had prepared the technical reports of
vehicles has recorded a finding that the
technical report was prepared by Anant
Ram Tiwari without any influence of any
person from the side of the Insurance
Company or owner of the vehicle. However
on perusal of the accident inspection report
of both the vehicles i.e. the offending Truck
having Registration No.UP-78-B-4281 and
the Motorcycle of the deceased having
6 All. Bindheshwari Devi Srivastava & Ors. Vs. Ramesh Chandra Maurya & Ors.
185
Registration No.UP-33-P-3373, this court
is of the view that learned Tribunal erred in
holding that the right bumper of the Truck
would have dashed the left handle of the
Motorcycle on account of which the
accident
had
occurred,
therefore
no
negligence of the offending Truck driver is
proved and it is self proved on the basis of
it that the accident was on account of sole
negligence of the deceased because if the
accident would have occurred as per
imagination of the Tribunal as described by
it applying the principle of 'res ipsa
loquitur', the truck could not have dashed
only the left side of handle of the
Motorcycle, but it would have certainly
dashed front wheel also alongwith the
handle of the Motorcycle because it is not
the case of none of the parties that there
was any divider and cut at the place of
accident on the road from where the
deceased may have taken 'U' turn for going
to the Pragati Puram Colony on the
opposite side, or even otherwise taken 'U'
turn because left handle would have been
dashed only if a vehicle is going ahead of
the offending vehicle or if coming from the
opposite side takes 'U' turn and thereafter
coming on the side of other vehicle and in
such situation the negligence or fault of
offending truck cannot be denied.

14. On examining the findings
recorded by the Tribunal in the light of the
accident
inspection
report
of
the
Motorcycle at Sr.No.12 the handle is
damaged and at Sr.No.19 head light is
damaged and both the indicators are
broken, but there is no report that the
handle of the motorcycle was damaged
from the left side only. Both the tyres and
rim of the Motorcycle are also in good
condition as per condition of tyres at
Sl.No.16 of the accident inspection report
of Motorcycle having Registration No.UP33-P-3373. However the Mud Guard is
damaged and Dikki is broken. The accident
inspection report of the Truck No.UP-78B-4281 also indicates at Sl.No.19 that head
light of the truck is in order, whereas the
right side indicator is broken and both the
back lights are broken and the front bumper
at the right side is damaged. Therefore only
on the basis of accident inspection report of
the vehicles the presumption drawn by the
Tribunal in regard to the manner of
accident, on account of which the deceased
had died, is not correct and this court is of
the view that the findings have been
recorded
without
considering
and
appreciating
the
whole
evidence
appropriately,
therefore
it
is
not
sustainable.

15. Even otherwise if it is taken to be
correct the negligence or fault of Truck
Driver, which was coming from the
opposite side of the road on the LucknowAllahabad Highway and passing from the
City, where the residential Colony is
situated, cannot be ignored and it cannot be
said that there was no negligence of the
Truck Driver, if he was not completely
liable for the accident on account of rash
and negligent driving of the vehicle.

16. The respondent no.2 Shiv Shanker
Maurya, Driver of the Truck No.UP-78-B4281 appeared as D.W.1, who has admitted
the
accident
and
the
Truck
was
apprehended on the spot in front of Gate of
Pragati Puram Colony and he was driving
the vehicle at the time of accident which
was got released from the Court. He has
also admitted that he had ran away from the
spot, therefore, if there would have no
negligence or fault of the Truck Driver, he
would not have ran away from the spot.
However it may not be the only ground for
holding negligence or fault of the driver.
186 INDIAN LAW REPORTS ALLAHABAD SERIES
The F.I.R. was lodged against the truck
driver and after investigation charge sheet
has been filed by the police, therefore the
allegation of rash and negligent driving of
driver of truck has been found prima facie
proved and the trial is going on, therefore it
is alos to be considered in the light of the
evidence adduced before the Tribunal.

17. The High Court of Karnataka, in
the case of Mallamma Versus Balaji and
others (Supra), has held that filing of the
charge-sheet against the driver is also a
prima facie case to hold that the driver was
responsible for the accident and burden
shifts on him to prove the same. The High
Court also considered with reference to
several judgments as to when and how the
principle of 'res ipsa loquitur' i.e. "speak
for itself" can be applied. The Relevant
paragraphs 8 to 12 are extracted below:-

"8. In this connection, reference
may be made to a decision reported in The
United India Fire and General Insurance
Company Limited v. Maddali Suseela
[1979 ACJ 110.] wherein the Division
Bench of the Andhra Pradesh High Court
has observed in Para 25 as under:-

"The maxim res ipso loquitur
applies whenever it is so improbable that
such an accident would have happened
without the negligence of the defendant
that a reasonable jury could find without
further evidence that it was so cause."

The
following passage
from
Halsbury's Laws of England (3rd edition at
page 77) is very inceptive:

"An exception to the general rule
that the burden of proof of the alleged
negligence is in the first instance on the
plaintiff occurs wherever the facts already
established are such that the proper and
natural inference arising from them is that
the injury complained of was caused by the
defendant's negligence 'tells its own story'
of negligence on the part of the defendant,
the
story
so
told
being
clear
and
unambiguous".

"In Pushpabai v. Ranjit G & P.
Co. referring to the doctrine of res ipso
loquitur the Supreme Court said at page
346 thus;"

"The normal rule is that it is for
the plaintiff to prove negligence but as in
some cases considerable hardship is caused
to the plaintiff as the true cause of the
accident is not known to him but is solely
within the knowledge of the defendant who
cause it, the plaintiff can prove the accident
but cannot prove how it happened to
establish negligence on the part of the
defendant. This hardship is sought to be
avoided by applying the principle of res
ipsa loquitur. The general purport of the
words res ipsa loquitur is that the accident
"speaks for itself" or tells its own story.
There are cases in which the accident
speaks for itself so that it is sufficient for
the plaintiff to prove the accident and
nothing more. It will then be for the
defendant to establish that the accident
happened due to some other cause than his
own negligence.

It is further observed thus:

"Where the maxim is applied the
burden is on the defendant to show either that in
fact he was not negligent or that the accident
might probably have happened in a manner
which did not connote negligence on this part."

"The general principle is that he
who alleges a fact must prove it. Normally
6 All. Bindheshwari Devi Srivastava & Ors. Vs. Ramesh Chandra Maurya & Ors.
187
it is the duty of the plaintiff who alleged
negligence to prove the same."

9. Therefore, keeping in mind the
ratio laid down in the aforesaid two
decisions, it can be held that the driver of
the milk tank was mainly responsible for
the accidental death of late Bhimaraya.

10. In a recent decision of the
Supreme Court in case of Smt. Kaushnuma
Begum v. New India Assurance Company
Limited [ILR 2001 Kar 493.] wherein it
was held that "jurisdiction of the Tribunal
is not restricted to decide claims arising out
of negligence in the use of Motor Vehicles.
Negligence is one of the Species of the
Causes of action for making a claim for
compensation in respect of Accidents
arising out of the use of Motor Vehicles.
There are other premises for such cause of
action."

11. In another decision of the
Supreme Court in case of Pushpabai
Parshotam Udeshi v. Ranjit Ginning and
Pressing Co. Pvt. Ltd. [(1977) 2 SCC 745 :
AIR 1977 SC 1735.] wherein it was held
that "Motor Vehicles Act (1939) Section
110A(1)(b) - Death caused due to rash and
negligent driving - Compensation - Rash
and negligent driving - Proof-Burden -
Application of principle "res ipsa loquitor -
Requirements."

12.
Therefore,
under
these
circumstances, I am of the considered
view that the Tribunal has wrongly come
to the conclusion and held that the
claimant has not proved the negligence
on the part of the driver of the milk van
involved in the accident. Filing of the
charge sheet against the driver is also a
prima facie case to hold that the driver of
the said lorry was responsible for the
accident and burden shifts on him to
prove the same."

18. The Hon'ble Supreme Court, in
the case of Sunita Versus Rajasthan
SRTC; (2020) 13 SCC 486, has observed
that the Tribunal had justly placed
reliance on the contents of FIR and
charge-sheet which prima facie indicate
the negligence in driving bus.

19. The Hon'ble Supreme Court, in
the case of S.Kaushnuma Begum and
others
Versus
The
New
India
Assurance Company Ltd. (Supra), has
held that even if there is no negligence on
the part of the driver or owner of the
motor vehicle, but accident happen while
the vehicle was in use, should not the
owner be made liable for damages to the
person who suffered on account of such
accident.

20. The Division Bench of High Court
of Kerala at Ernakulam, in the case of New
India Assurance Company Limited Versus
Pazhaniammal and others (Supra), has
held that the quality of evidence to prove
negligence and the extent of negligence to be
established
is
certainly
different
from
culpable negligence punishable under the
criminal law and the Tribunals cannot look at
the question as an umpire in an adversarial
litigation between parties. It has further been
held that in the absence of specific pleadings
and evidence, if the totality of the
circumstances convince the Tribunal that
there has been negligence, the Tribunal will
certainly be justified in passing an award
under Section 166 of the Motor Vehicles Act.
The relevant paragraph 10 is extracted herein-below:-

"10. Notwithstanding Section 140
and 163 A of the Motor Vehicles Act even
188 INDIAN LAW REPORTS ALLAHABAD SERIES
now in a claim under Section 166 of the
Motor Vehicles Act negligence has to be
established. But the quality of evidence to
prove negligence and the extent of
negligence to be established is certainly
different
from
culpable
negligence
punishable
under
the
criminal
law.
Tribunals cannot look at the question as an
umpire in an adversarial litigation between
parties. Even in the absence of specific
pleadings and evidence, if the totality of the
circumstances convince the Tribunal that
there has been negligence, the Tribunal will
certainly be justified in passing an award
under Section 166 of Motor Vehicles Act.
Tribunals called upon to discharge the
legislature mandate of ensuring just and
reasonable compensation to the victims
cannot function merely as umpires in an
adversarial litigative process. The Tribunals
should play the dynamic role expected of
them under a welfare legislation in a
socialist
republic
to
effectively
and
expeditiously translate the compassion of
the legislature into tangible benefits to the
victims. The primary mandate to and the
very purpose of constitution of the Tribunal
under the provisions of the Motor Vehicles
Act is to ensure just and reasonable
compensation to the victims and the
Tribunal should not and can never afford to
ignore that basic tenet. In that view of the
matter we are satisfied that the materials
available sufficiently justify the impugned
award."

21. In view of above and considering
the overall facts and circumstances of the
case this court is of the view that the
learned Tribunal has failed to examine and
scrutinize the evidence correctly and in
right perspective and has also failed to
apply the principle of 'res ipsa loquitur'
correctly, therefore this court is of the view
that the impugned judgment and order
passed by the Motor Accident Claims
Tribunal is not sustainable in the eyes of
law and it is liable to be set aside and
matter is liable to be remitted back to the
concerned Tribunal to pass a fresh order in
accordance with law.

22. The appeal is partly allowed. The
matter is remitted back to the concerned
tribunal to pass a fresh order in accordance
with law and in the light of observations
made in this order expeditiously and
preferably within a period of six months
from the date of production of a certified
copy of this order without granting
unnecessary adjournment to either of the
parties. No order as to costs.

23. The lower court record shall be
sent back to the concerned Tribunal
expeditiously and in any case within a
period of two weeks from today.
----------
(2024) 6 ILRA 188
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.06.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 1761 of 1983

Phagoo ...Appellant
Versus
Gokaran & Ors. ...Respondents

Counsel for the Appellant:
Ashutosh Srivastava, Shreesh Srivastava,
Shreyas Srivastava

Counsel for the Respondents:
Shakti Dhhar Dube, P.H. Vashishtha

A. Civil Law -Civil Procedure Code, 1908 -
Section 100 - Second Appeal- suit for