# Deen Dayal & Ors v. Nishan Singh & Ors

- **Citation:** (2022) 5 ILRA 772
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-23
- **Case number:** First Appeal From Order No. 1556 of 2002
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deen-dayal-ors-v-nishan-singh-ors-48587
- **Pages:** 6

## Headnote

A. Civil Law - Motor Accident Act, 1988 -
Beneficial
piece
of
legislation
-
Compensation - Rash and negligent driving
- Driver of the truck dashed with the bicycle
from behind - Perverse finding - Tribunal
takes hyper technical stand in dismissing
the claim petition - Validity challenged -
High Court held that the driver of the truck
was solely negligence - Vimla Devi's case
and Pranay Sethi's case relied upon - High
Court re-computed the compensation. (Para
15 and 17)

B. Civil Law - Motor Accident Act, 1988 -
Claim petition - Non-production of driving
licence - Effect - Recovery right of
Insurance - The factum of licence will have
to be proved by owner/driver of the vehicle,
in question - Held, the amount once
deposited, may be recovered from the
owner by the Insurance Co. as it is proved
that the vehicle was insured on the date of
the accident - Tribunal shall decide the
issue of liability after hearing the owner and
the Insurance Co.. (Para 19 and 20)
Appeal partly allowed (E-1)
List of Cases cited :-

## Text

772 INDIAN LAW REPORTS ALLAHABAD SERIES
of the litigant and the pendency of the
matter and judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.

19. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private Ltd. v. Union of
India and others vide order dated
27.1.2022, as the purpose of keeping
compensation is to safeguard the interest
of the claimants. As 10 years have
elapsed, the amount be deposited in the
Saving
Account
of
claimants
in
Nationalized Bank without F.D.R.

20.

We
request
the
learned
Registrar General to forward a copy of
this order to the concerned Judge who
has passed the impugned order where he
is posted and if he has retired from
service then also it should be brought to
his notice so that in future such mistake
regarding assessment of income may not
be committed if he is employed for some
good post.
----------
(2022)05ILR A772
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 1556 of 2002

Deen Dayal & Ors. ...Appellants
Versus
Nishan Singh & Ors. ...Respondents

Counsel for the Appellants:
Sri T.A. Khan, Sri Rakesh Kumar Mishra
Counsel for the Respondents:
Sri Radhey Shyam, Sri Vinod Singh

A. Civil Law - Motor Accident Act, 1988 -
Beneficial
piece
of
legislation
-
Compensation - Rash and negligent driving
- Driver of the truck dashed with the bicycle
from behind - Perverse finding - Tribunal
takes hyper technical stand in dismissing
the claim petition - Validity challenged -
High Court held that the driver of the truck
was solely negligence - Vimla Devi's case
and Pranay Sethi's case relied upon - High
Court re-computed the compensation. (Para
15 and 17)

B. Civil Law - Motor Accident Act, 1988 -
Claim petition - Non-production of driving
licence - Effect - Recovery right of
Insurance - The factum of licence will have
to be proved by owner/driver of the vehicle,
in question - Held, the amount once
deposited, may be recovered from the
owner by the Insurance Co. as it is proved
that the vehicle was insured on the date of
the accident - Tribunal shall decide the
issue of liability after hearing the owner and
the Insurance Co.. (Para 19 and 20)
Appeal partly allowed (E-1)
List of Cases cited :-
1. UPSRTC Vs Km. Mamta & ors. AIR 2016 SC
948
2. F.A.F.O. No.3425 of 2016; Smt. Minakshi
Srivastava & ors. Vs Dheeraj Pandey & ors.
decided on 11.3.2022
3. Smt. Kaushnuma Begum ors. Vs The New
India Assurance Co. Ltd.; (2001) 2 SCC 9.
4. Vimla Devi & ors. Vs National Insurance Co.
Ltd. & ors. 2019 (133) ALR 768
5. Anita Sharma Vs New India Assurance Co.
Ltd.; (2021) 1 SCC 171
6. Dulcina Fernandes & ors. Vs Joaquim Xavier
Cruz & anr.; AIR 2014 SC 58
7. C.M.A. No. 1482 of 2017; Reliance General
Insurance Co. Ltd. Vs Subbulakshmi & ors.
passed by Madras High Court
5 All. Deen Dayal & Ors. Vs. Nishan Singh & Ors.
773
8. Puspabai Purshottam Udeshi Vs Ranjit
Ginning and Pressing Co., 1977 ACJ 343 (SC)
9. Mangla Ram Vs Oriental Insurance Co. Ltd. &
ors. 2018 0 Supreme (SC) 283
10. Tahsin Vs Yogesh Kumar & anr., 2019 0
Supreme (All) 1605
11. Bithika Mazumdar & anr. Vs Sagar Pal &
ors., (2017) 2 SCC 748
12. Pappu & ors. Vs Vinod Kumar Lamba & ors.
AIR 2018 SC 592
13. Singh Ram Vs Nirmala & ors. (2018) 3 SCC
800
14. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs U.O.I. & ors. decided on 27.1.2022

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard Sri Rakesh Kumar Mishra,
learned counsel for the appellants and Sri
Radhey Shyam and Sri Vinod Singh, learned
counsel for the respondents.

2. By means of this appeal, the
appellants challenge the judgment and award
dated 20.5.2002 passed by Motor Accident
Claims Tribunal/Addl. District Judge, Court
No.2, Rampur (hereinafter referred to as
'Tribunal') in M.A.C.P. No. 4 of 2001.

3. Brief facts as culled out from the
record are that on 1.11.2000 when the
deceased Kuldeep Singh was going to Post
Office, Galla Mandi Road, Bilaspur, by his
bicycle, the driver of Truck, bearing no.HR
26 GA 1507, driving the vehicle rashly and
negligently came and dashed the bicycle at
about 10:00 a.m. from behind due to which
the deceased died on the spot.

4. The claimants being legal heirs of
the deceased preferred the claim petition
claiming a sum of Rs. 60,10,000/- from the
respondents. The claimants pleaded that the
deceased was the sole bread-winner of the
family. He was dealing with the electrical
goods and he was earning at least Rs.
6,000/- per month and because of his death
the entire family has been rendered
helpless. An F.I.R. came to be registered,
bearing no.399 of 2000, Police Station
Bilaspur, district Rampur.

5. The Apex Court in UPSRTC Vs.
Km. Mamta and others, reported in AIR
2016 SC 948, has held that all the issues
raised in the memo of appeal are required
to be addressed and decided by the first
appellate court.

6. Respondent no.3 - owner of
offending vehicle has filed reply denying
certain facts and has contended that the
claimants have claimed an exorbitant
amount. The written statement specifically
contends that the driver of the truck was
driving the truck at a slow speed. It was
driven by a driver, who had valid licence.
The driver was not negligent. Accident
occurred due to negligence of the deceased
and, therefore, the owner or driver would
not be liable. The driver had valid driving
licence and the vehicle was insured with
National Insurance Company Limited. The
Insurance company - respondent no.2 has
filed its reply of denial and has contended
that the vehicle was not insured with it. It
was being driven by driver not having valid
driving licence.

7. The Tribunal framed about 5 issues
and answered the first issue against the
appellants herein and rejected the claim
petition. One of the reasons assigned for
rejecting the claim petition is that PW1
could not convey as to whether at 10:00
a.m. it was dark or it was day light. The
774 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribunal has surmised that PW1 has
nowhere stated that he knew English and,
therefore, it was very doubtful whether he
could have read the number printed in
English of the vehicle in question. The
Tribunal held that no other eye witness
named in F.I.R. was examined by the
claimants before the Tribunal and further in
his oral testimony opined that PW1 did not
convey that the accident occurred at 10:00
a.m. Though, this fact was deposed by
PW2. The Tribunal came to the conclusion
that when driver ran away from the place of
accident, how PW1 came to know his name
and number of vehicle. At the out set, these
findings are perverse. The Tribunal has not
discussed the reply filed by the respondent
wherein the respondent has not denied the
accident having taken place. The driver has
not stepped into the witness box. The
findings are based on surmises and
conjectures drawn by the learned Tribunal
without any pleading.

8. Once F.I.R., chargesheet and the
post-mortem report are filed before the
Tribunal, prima facie, they would prove
that the accident had occurred with the
vehicle in question. These are three basic
facts, which are required to be established
accident involving the motor vehicles even
in the year of accident i.e. 2001. The
Tribunal with utmost respect has fallen in
grave error in dismissing the claim petition.
The post-mortem report of the deceased
goes to show that he died after he sustained
injuries caused due to vehicular accident.
The owner of the truck admitted the factum
of the accident in written statement filed
before Tribunal.

9. A recent decision of Division
Bench by this Court in case titled Smt.
Minakshi Srivastava and others Vs.
Dheeraj Pandey and others, F.A.F.O.
No.3425 of 2016, decided on 11.3.2022,
where the factum of accident is accepted by
the owner will apply and enure for the
benefit of these claimants.

10. Learned Counsel for the appellant
has relied on the decision of this Bench in
Smt. Minakshi (supra) wherein it is held
that once the owner has accepted the
involvement of vehicle in accident, the
Tribunal cannot dismiss the claim petition
unless proved otherwise.

11. The learned Tribunal has fallen in
grave error in not considering the matter
under beneficial piece of legislation. It has
though narrated that F.I.R. was filed on
same day, chargesheet was laid but there is
no discussion on the same in the award.
The evidence of PW1 and PW2 is clinching
so as to establish that Kuldeep singh alias
Pappu was dashed by the truck and died on
the spot. The findings of fact that Ram Kali
did not opine or depose that she saw the
accident by her own eyes has no relevance.
All these findings are not only perverse but
against the record. The Tribunal comes to
the conclusion that the claimant did not
prove that respondent no.3 was driving the
vehicle at the time of the accident when
F.I.R. is filed it has its persuasive value.
Chargesheet against Nishan Singh was
primary evidence of his driving the vehicle,
which has not been rebutted nor proned to
be concocted.

12. As the matter is of 20 years old,
we remand the matter as the owner had not
produced
any
documentary
evidence
regarding licence of his driver and that the
vehicle was insured. All these facts will
have to be ascertained by the Tribunal.

13. We are fortified in our view by the
decisions of Apex Court in (a) Smt.
5 All. Deen Dayal & Ors. Vs. Nishan Singh & Ors.
775
Kaushnuma Begum And Ors vs. The New
India Assurance Co. Ltd. (2001) 2 SCC 9.,
(b) Vimla Devi and others Vs. National
Insurance Company Limited and others,
2019 (133) ALR 768; (c) Anita Sharma v.
New India Assurance Co. Ltd. (2021) 1 SCC
171 (d) Dulcina Fernandes & Ors. vs.
Joaquim Xavier Cruz & Anr., AIR 2014 SC
58, and on the decision of Madras High Court
in Reliance General Insurance Co. Ltd. Vs.
Subbulakshmi and Others, passed in C.M.A.
No. 1482 of 2017 [C.M.P. No. 7919 of 2017.
(CMA Sr. No. 76893 of 2016)] and the
decision of Apex Court referred in the said
case namely Puspabai Purshottam Udeshi
Vs. Ranjit Ginning and Pressing Co.,
1977ACJ 343 (SC), the ratio laid in these
decisions would be applicable in such matters
where Tribunal takes hyper technical stand in
dismissing the claim petition which is filed
under the beneficial piece of legislation.
Despite the fact that judgment of Smt.
Kaushnuma Begum And Ors vs. The New
India Assurance Co. Ltd. (2001) 2 SCC 9
was very much in vogue, the Tribunal has
dismissed the claim petition holding that
there are discrepancies in the evidence of
prosecution witnesses.

14. One more aspect can be looked
into namely provisions of Order XII of
Code of Civil Procedure, 1908, which deals
with
judgment
on
admission
which
stipulate as under:-

(1) Where admissions of fact have
been made either in the pleading or
otherwise, whether orally or in writing, the
Court may at any stage of the suit, either
on the application of any party or of its
own motion and without waiting for the
determination
of
any
other
question
between the parties, make such order or
give such judgment as it may think fit,
having regard to such admissions.

(2) Whenever a judgment is
pronounced under sub-rule (1) a decree
shall be drawn upon in accordance with the
judgment and the decree shall bear the date
on which the judgment was pronounced."

15. The decision of the Apex Court
more particularly in the case of Kusum
Lata and Vimla Devi will not permit us to
concur with the view of the learned
Tribunal. The written statement of the
Insurance company and that of the owner
ought to have been looked into by the
Tribunal before dismissing the claim
petition. The matter also has to be looked
from
the
angle
of
negligence.
The
principles of deciding negligence when
viewed will go to show that the driver of
the truck dashed with the bicycle from
behind and, therefore, we can safely held
that the driver of the truck was solely
negligence.

16. We are even supported in our
view by the ratio in judgment of Apex
Court in case titled Mangla Ram Vs.
Oriental Insurance Co. Ltd. and others,
2018 0 Supreme (SC) 283 and this High
Court titled Tahsin Vs. Yogesh Kumar and
another, 2019 0 Supreme (All) 1605.

17. This takes us to the issue of
compensation and liability. The judgment
of Vimla Devi (supra) where the Apex
Court has also granted compensation where
the appeal and the claim petition were
dismissed.
The
judgment
in
Bithika
Mazumdar and another Vs. Sagar Pal and
others, (2017) 2 SCC 748, and the
judgment of Vimla Devi (supra) decided
the compensation awardable. The deceased
was in his own occupation. He was selling
electrical goods and in the year of accident
i.e. 2001 his income can be safely
considered to be Rs. 4,000/- as he was
bachelor and was aged 20 years. He has left
776 INDIAN LAW REPORTS ALLAHABAD SERIES
behind him his parents, minor brothers and
sisters. Hence, 40% would be added to his
income. Being a bachelor, he would be
spending 1/2 on himself 1/2 would be
deducted. Multiplier of 14 would be
applicable as per Sarla Verma (supra) and
Rs. 40,000/- for filial consortium. Hence,
the compensation payable to the appellants
in view of the decision of the Apex Court
in Pranay Sethi (Supra) is computed
herein below:

i. Income Rs.4,000/-

ii. Percentage towards future
prospects : 40% namely Rs.1600/-

iii. Total income : Rs. 4000 +
1600 = Rs. 5,600/-

iv. Income after deduction of 1/2
: Rs. 2,800/-

v. Annual income : Rs.2800 x 12
= Rs.33,600/-

vi. Multiplier applicable : 14

vii.
Loss
of
dependency:
Rs.33,600 x 14 = Rs. 4,70,400/-

viii. Amount under non pecuniary
heads : Rs.40,000/-

ix. Total compensation : Rs.
5,10,400/-

LIABILITY

18. The finding that the Insurance
company should have proved the driving
licence of the driver of the vehicle.
Unfortunately,
the
owner
in
written
statement has stated that the vehicle was
being driven by licensed driver but his
licence has not been produced. Issue of non
production of driving license either by the
owner or the driver is no longer res integra
as the judgment in Pappu and others
Versus Vinod Kumar Lamba and others,
reported in AIR 2018 SC 592, lays down
the law. The oral submission of learned
Counsel for the Insurance company will
have to be allowed and recovery rights will
have to be granted. However, this recovery
rights would be subject to proving the fact
that the owner, who was aware that the
driver did not have proper driving licence
for which the judgment of the Apex Court
in Singh Ram Vs. Nirmala and others,
(2018) 3 SCC 800, would apply in full
force.

19. The appeal is partly allowed. We
request the Tribunal to take up the matter
and decide the same for liability as the
licence is not filed either before Tribunal or
this Court and owner has absented here.
The factum of licence will have to be
proved by owner/driver of the vehicle in
question. The matter may be decided on or
before 31.10.2022 as 20 years have already
elapsed.

20. The amount once deposited, may
be recovered from the owner by the
Insurance company as it is proved that the
vehicle was insured on the date of the
accident. The Tribunal shall decide the
issue of liability only which shall be
decided after hearing the owner and the
Insurance company. The amount once
deposited
may
be
disbursed
to
the
claimants as per the judgment in Bajaj
Allianz General Insurance Company
Private Ltd. v. Union of India and others
vide order dated 27.1.2022.

21.

The
respondent-Insurance
Company shall deposit the amount with
interest at the rate of 6% from the date of
5 All. Pradeep Kumar Bisla Vs. Balwant Singh & Anr.
777
filing of the claim petition till the amount is
deposited within a period of 12 weeks from
today. The amount already deposited be
deducted from the amount to be deposited.

22. We, therefore, remand the matter
to the Tribunal. The record be sent back to
the Tribunal forthwith.
----------
(2022)05ILR A777
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 1634 of 2010

Pradeep Kumar Bisla ...Appellant
Versus
Balwant Singh & Anr. ...Respondents

Counsel for the Appellant:
Sri R.K. Srivastava Sri Ankur Mehrotra

Counsel for the Respondents:
Sri N.K. Srivastava

A. Motor Accident Claim - Standard of
proof - Civil or criminal cases, compared
with - Held, in motor accident claim
petition, the standard of prove is not as
strict as in civil or criminal cases - Strict
prove
of
an
accident
in
particular
manner may not be possible to be done
by the claimants - Claimants have to
establish their cases on the touchstone
of preponderance of probability. (Para
12 and 13)

B. Civil Law - Motor Accident Act, 1988 -
Claim - Deceased sustained injuries in
accident, subsequently he died during
pendency of claim petition - Though the
Tribunal
found
truck
driver
sole
negligent, but denied from awarding
compensation for death of the deceased
- Legality challenged - Cause of death
in
Post
mortem
report
is
chronic
diabetes - Effect - Held, the deceased
did not die as a result of injuries
sustained in the accident which had
taken place before 15 months of his
death - High Court found no link of the
death of the deceased with the injuries
sustained in accident. (Para 14)

C. Motor Accident Claim - Compensation
- Loss of estate, when can be granted -
Death of claimant during the pendency
of claim petition or appeal - Abatement
of petition or appeal - Entitlement of
legal representative of the deceased -
Held, if injured-claimant dies during the
pendency of the claim petition or appeal
and his/her death is not the result of
injuries in the accident, even though the
petition or appeal shall not abate and it
shall continue by legal representatives
but
only
with
regard
to
the
compensation for loss of estate of the
deceased - Claims for loss of estate
caused, was available to and could be
persuade by the legal representative of
the deceased in the appeal - High Court
found Tribunal's order of brushing aside
the medical bills of Yog Dispensary
worth Rs. 1,42,500/-, suffered from
error
and
re-computed
the
compensation
with
award
of
7.5%
interest. (Para 15, 17, 18, 21 and 23)

D. Civil Law - Income Tax Act, 1961 -
Section 194A (3) (ix) - Withdraw of
amount of interest - Certificate of Income
Tax authority, when required - Held, if the
interest payable to any claimant for any
financial
year
exceeds
Rs.
50,000/-,
insurance Co./owner is/are entitled to
deduct appropriate amount under the
head of 'Tax Deducted at Source' as
provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 - And if the amount of
interest does not exceeds Rs. 50,000/- in
any financial year, registry of this Tribunal
is directed to allow the claimants to
withdraw the amount without producing
the
certificate
from
the
concerned
Income- Tax Authority. (Para 25)