# Dr. Anoop Kumar Bhattacharya & Anr v. National Insurance Co. Ltd. & Anr

- **Citation:** (2022) 1 ILRA 105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-14
- **Case number:** First Appeal From Order No. 1652 of 2009
- **Bench:** Mrs. Sunita Agarwal, Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-anoop-kumar-bhattacharya-anr-v-national-insurance-co-ltd-anr-47635
- **Pages:** 52

## Headnote

A. Civil Law - Motor Vehicle Act, 1988 -
Section
176-Enhancement
of
compensation-deceased was 24 years old
and was in final year of MBA Course , he
was earning Rs. 13,080/- per month as
part time job-he left behind his mother
and father- Tribunal computed loss of
dependency
4,60,000/-
by
applying
multiplier 8 and the said figure was then
halved to Rs. 2,30,000/- to account for
the contributory negligence on the part of
the deceased-contributory negligence on
the part of the deceased unsustainableTotal
compensation
payable
to
the
claimants works out to Rs. 33,50,000/- by
applying multiplier 18 with interest rate
8% per annum.(Para 1 to 143)

The appeal is partly allowed.(E-6)

List of Cases cited:

## Text

_Characters 0–39,977 of 173,352. This is a partial read: ask again with offset=39977 for what follows._

1 All. Dr. Anoop Kumar Bhattacharya & Anr. Vs. National Insurance Co. Ltd. & Anr.
105
(2022)01ILR A105
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE KRISHAN PAHAL, J.

First Appeal From Order No. 1652 of 2009

Dr. Anoop Kumar Bhattacharya & Anr.
 ...Appellants
Versus
National Insurance Co. Ltd. & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Sanjay Singh, Sri Amrendra Nath Rai

Counsel for the Respondents:
Sri Amit Manohar

A. Civil Law - Motor Vehicle Act, 1988 -
Section
176-Enhancement
of
compensation-deceased was 24 years old
and was in final year of MBA Course , he
was earning Rs. 13,080/- per month as
part time job-he left behind his mother
and father- Tribunal computed loss of
dependency
4,60,000/-
by
applying
multiplier 8 and the said figure was then
halved to Rs. 2,30,000/- to account for
the contributory negligence on the part of
the deceased-contributory negligence on
the part of the deceased unsustainableTotal
compensation
payable
to
the
claimants works out to Rs. 33,50,000/- by
applying multiplier 18 with interest rate
8% per annum.(Para 1 to 143)

The appeal is partly allowed.(E-6)

List of Cases cited:

1.
Pramod
Kumar
Rasikbhai
Jhaveri
Vs
Karmasey Kunvargi Tak (2002) 6 SCC 155

2. Mohammed Siddique & anr. Vs National
Ins. Co. Ltd. & ors. (2020) 3 SCC 57

3. Jiju Kuruvila & ors. Vs Kunjujamma Mohan &
ors. (2013) 9 SCC 166

4. Arvind Kumar Mishra Vs New India Assr. Co.
Ltd. & anr. (2010) 10 SCC 254

5. Neeta W/O Kallappa Kadolkar & ors. Vs Div.
Manager, MSRTC, Kolhapur (2015) 16 SCC 680

6. National Ins. Co. Ltd. V. Pranay Sethi & ors.
(2017) 16 SCC 680

7. Jabbar Vs MSRTC, (2019) 0 Supreme SC
2283

8. Smt. Sarla Verma & ors. Vs DTC & anr (2009)
2 SCC (Civ) 770

9. National Ins. Co. Ltd. Vs Mannat Johal & ors
(2019) 15 SCC 260

10. B D Bagri Vs Daulat Ram & ors. (1998) ACJ
1303

11. Mata Ji Beva & ors. Vs Hemant Kumar
(1994) ACJ 1303

12. Anita Sharma & ors. Vs The New India Assr.
Co. Ltd. & anr. (2021) 1 SCC 171

13. Dulcina Fernandes & ors. Vs Joaquim Xavier
Cruz & ors. (2013) 10 SCC 646

14. Bimla Devi Vs Himachal RTC (2009) 13 SCC
530: (2009) 5 SCC (Civ) 189 : (2010) 1 SCC
(Cri) 1101

15. M. Siddiq Vs Suresh Das (2020) 1 SCC 1

16. Mangla Ram Vs Oriental Ins. Co. & ors.
(2018) 5 SCC 656

17. N.K.V. Bros.(P) Ltd. Vs M. Karumai Ammal &
ors. (1980) 3 SCC 457

18. United India Ins. Co. Ltd. Vs Shila Datta
106 INDIAN LAW REPORTS ALLAHABAD SERIES
19. Parmeshwari Vs Amir Chand in (2011) 11
SCC 635

20. Kartar Singh Vs St. of Punj.

21. Sunita Vs RSRTC (2019) SCC Online SC 195

22. UPSRTC Vs Km. Mamta & ors. (2016) AIR SC 948

23. Ravi Kapur Vs St. of Raj.(2012) 9 SCC 984

24. United India Ins. Co. Ltd. Vs Satinder Kaur
@ Satwinder Kaur & ors. (2020) AIR SC 3076

25. Kirti Vs Oriental Ins. Co. Ltd. (2021) SCC
Online SC 3

26. M.R. Krishnamurthy Vs The New India Assr.
Co. Ltd.(2019) SCC Online SC 315

27. Arvind Kumar Mishra Vs New India Assr. Co.
Ltd. in (2010) 10 SCC 254

28. Oriental Ins. Co. Ltd. Vs Deo Patodi & ors
(2009) 13 SCC 123

29. Smt. Sarla Verma & ors. Vs DTC & anr
(2009) 93 Supreme 487

30. Reshma Kumari & ors. Vs Madan Mohan &
anr. (2013) 9 SCC 65

31. National Ins. Co. Ltd. V. Pranay Sethi & ors.
(2017) 16 SCC 680

32. Magma General Ins. Co. Ltd. Vs Nanu Ram
& ors., in (2018) 18 SCC 130

33. National Ins. Co. Ltd Vs Mannat Johal & ors.
(2019) 15 SCC 260

(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Sri Sanjay Singh, learned
counsel for the claimants-appellants and Sri
Amit Manohar, learned counsel for the
Insurance Company, arrayed as respondent
no.1.

2. This First Appeal From Order
(hereinafter referred to as ''FAFO') was
instituted
by
the
claimants-appellants,
under Section 173 of the Motor Vehicles
Act, 1988 (hereinafter referred to as ''Act,
1988'), assailing the judgment and order
dated 24.01.2009 rendered by the Motor
Accident
Claims
Tribunal/Additional
District Judge/ Special Judge (E.C. Act),
Bareilly
(hereinafter
referred
to
as
''Tribunal') in Motor Accident Claim
Petition Case No.-881 of 2004.

3. A perusal of the order sheet
indicates that this Court, vide order dated
02.11.2015, admitted this FAFO and issued
notices. Accordingly, notices were sent to
the respondents 1 & 2 by ordinary post.
The office report dated 22.09.2021 reads
''notices
sent
by
ordinary
post
to
respondents 1 & 2 did not return after
service' indicating satisfactory service.

4. While Sri Amit Manohar, learned
counsel, has put in appearance on behalf of
the
respondent
no.1
the
Insurance
Company
(hereinafter
referred
to
as
''Insurer'), no one has appeared on behalf of
the respondent no.2, the owner of truck
involved in the accident (hereinafter
referred to as ''offending truck') despite
service of notice. The appeal is of the year
2009 and, thus, very old. It transpires from
the record that the respondent no.2 did not
contest the case even before the Tribunal,
the judgment dated 24.01.2009 whereof is
under challenge in this FAFO. The record
indicates that though Vakalatnama was
filed before the Tribunal by one Advocate
Mohd. Rashid Malik on 14.12.2005 on
behalf of the respondent no.2 but the
respondent no.2 did not even file a written
statement and the Tribunal vide order dated
25.09.2007 proceeded ex-parte against him.
The respondent no.2, therefore, does not
seems to be interested in putting up a
defence despite ample opportunity.
1 All. Dr. Anoop Kumar Bhattacharya & Anr. Vs. National Insurance Co. Ltd. & Anr.
107

FACTS

5. Before adverting to the issues
which arise for consideration by this Court,
it would be of profit to undertake a survey
of the relevant facts of the case.

6. The claimants-appellants, namely
Dr. Anoop Kumar Bhattacharya (who had
unfortunately died during the pendency of
the case before the Tribunal) and Smt.
Leena
Bhattacharya,
on
16.12.2004,
instituted Motor Accident Claim Petition
(M.A.C.P.)
No.-881/2004
before
the
Tribunal, under Section 166 of the Act,
1988, for grant of compensation on account
of the unfortunate and tragic death of their
only son, namely Abhishek Bhattacharya
(hereinafter referred to as ''deceased'), who
had died in a motor vehicle accident on
20.07.2004.
Dr.
Anoop
Kumar
Bhattacharya was claimant no.1 whereas
Smt. Leena Bhattacharya was claimant no.2
(Dr. Anoop Kumar Bhattacharya and Smt.
Leena
Bhattacharya
shall
hereinafter
individually be referred to as ''claimant
no.1' and ''claimant no.2' respectively and
jointly as ''claimants').

7. As per the claim petition, the
deceased was 24 years old and was in the
final year of MBA course at the Institute of
Cost and Financial Accountants of India,
Hyderabad (hereinafter referred to as
''ICFAI'). It was also contended that the
deceased was in the part time employment
of M/S Ivy Comptech, Hyderabad and was
earning Rs.13,080. The case of the
claimants, as a matter of fact, can be
conveniently looked into in its entirety
from the particulars furnished under the
head ''23. Other information that may be
helpful in the disposal' in the claim
petition, which is extracted hereunder
for ready reference: -

"On 20.07.2004, the claimant
no.1 was travelling from Bareilly with the
deceased in his Car No.-UA-06-A6970 on
Bareilly-Delhi National Highway at a very
low speed. The Truck No.-GJ-1-TT-8883
came from the front from Rampur side and
was driven very rashly and negligently by
its driver and collided into the car on the
right side. The deceased was severely
injured and was taken by the claimant no.1
to Dhanwatari Tomer Hospital, Bareilly
with the help of people but he died. The
claimant no.1 also received severe shock
and injuries. FIR was lodged with PS
Meerganj, Distt Bareilly.

The deceased Abhishek was the
only child of the claimants and was in the
final year of MBA in Institute of Cost and
Financial
Accountants
of
India
at
Hyderabad, which is one of the best institutes
of the country. Owing to his excellent
performance, he was employed/ working with
M/S Ivy Comptech at Hyderabad and
drawing a starting salary of Rs.13080/-. He
was a very promising young man and would
have been absorbed by big corporate houses
on very high salary of over Rs.50,000/- per
month initially with further rise. He had a
very bright future and had also received
several awards for his performances. He had
no bad habits of drinking, smoking etc. He
was very good natured and was greatly loved
in the whole family. Being the only child of
the claimants, the life and future of the
claimants has been completely shattered by
his death and they are left with no one to look
after in this old age."

8.

The
claimants
prayed
for
compensation of Rs.92 lacs (Rupees Ninety
108 INDIAN LAW REPORTS ALLAHABAD SERIES
Two Lacs) along with interest at the rate of
18% per annum as also the cost of the
petition. They also prayed for an interim
award of Rs.50,000/- under Section 140 of
the Act, 1988.

9. The claim petition was contested
by the Insurer, who was arrayed as
Opposite party No.1 in the claim petition.
The Insurer filed its written statement on
28.08.2005. The factum of the accident was
disputed; the age, income and occupation
of the deceased was also disputed; the
accident, if at all it took place, was alleged
to have occurred due to the fault and
negligence of the deceased and not because
of the act of the driver of the offending
truck; the dependency of the claimants on
the deceased was disputed; the driver of the
offending truck was alleged to have not
holding a valid driving license at the time
of the accident; the offending truck was
alleged to have been driven in violation of
the terms and conditions of the insurance
policy. It, however, appears from the issues
framed by the Tribunal, which we shall
refer to shortly, that not all objections taken
in the written statement were pressed into
service.

10. Based on the pleadings of the
contesting parties, the Tribunal framed five
issues
for
determination
which
are
extracted hereunder: -

"1- क्या ददनाांक 20.7.04 को जब
मृतक अदिषेक िट्टाचार्य अपने दपता डा० अनूप
कुमार िट्टाचार्य के साथ कार सांख्या - र्ू० ए०06-ए-6970 से बरेली से ददल्ली जा रहा था, तब
थाना मीरगांज से लगिग 5 दकलोमीटर दूरी पर
थाना मीरगांज दजला बरेली में अन्तगयत टरक सां०जी०जे०-1-टी०टी०-8883 के चालक द्वारा टर्क
को तेजी एवां लापरवाही से चलाकर कार में
टक्कर मार दी, दजससे अदिषेक िट्टाचार्य को
चोटें आर्ीां और उसकी मृत्यु हो गर्ी?

2- क्या र्ह दुघयटना स्वर्ां कार चालक
की गलती एवां लापरवाही के कारण हुई?

3- क्या दुघयटना के समर् टरक चालक
के पास वैध डराइदवांग लाईसेंस नहीां था?

4- क्या दुघयटना के समर् र्ह टरक
दवपक्षी सांख्या - 1 नेशनल इांश्योरेन्स कम्पनी सेेे
बीदमत था और बीमा पादलसी की दकसी शतय का
कोई उल्लांघन नहीां दकर्ा गर्ा था तथा टरकको
वैध दिटनेस प्रमाण पत्र, परदमट आदद के
आधार पर चलार्ा जा रहा था?

5- क्या र्ाचीगण प्रदतकर की धनरादश
पाने के अदधकारी है? र्दद हााँ तो दकतनी और
दकससे?"

"(i) On 24.07.2004, when the
deceased was going to Delhi from Bareilly
with his father in his Car No.- UP-06 A6970, did the driver of the Truck No.- GJ 1
TT 8883 ram the truck into the car of the
deceased driving the truck rashly and
negligently, at about 5 km from P.S.-
Meerganj, Bareilly, injuring the deceased
and ultimately causing his death?

(ii) Did the accident take place
due to the fault and negligence on the part
of the car driver himself?

(iii) Did the truck driver not have
a valid driving license at the time of the
accident?

(iv) Was the truck, at the time of
the accident, insured by the respondent
no.1 and was not in violation of any of the
terms and conditions of the insurance
policy, and, was the truck being driven
under a valid fitness certificate, permit,
etc.?

(v) Are the claimants liable to be
awarded
compensation?
If
yes,
the
quantum of such compensation and by
whom?"

 (English Translation by Court)
1 All. Dr. Anoop Kumar Bhattacharya & Anr. Vs. National Insurance Co. Ltd. & Anr.
109

11. The claimants adduced both
documentary evidence and oral evidence to
substantiate their claim. In oral evidence,
the claimant no.2, Smt. Leena Bhattacharya
was examined as PW-1 whereas one
Chaturbhuj Shukla, who claimed to have
witnessed
the
whole
incident,
was
examined as PW-2. Both PW-1 and PW-2
were also subjected to cross-examination
by the counsel for the Insurer. In the
documentary evidence, the claimants, inter
alia, filed: certified copy of the FIR dated
21.07.2004 lodged by the claimant no.1,
under Sections 279, 304A & 427 IPC,
against Raj Kishore, the driver of the
offending truck, in connection with the
accident at the Police Station Meerganj,
Bareilly; certified copy of the post mortem
report dated 21.07.2004 of the deceased;
certified copy of the charge-sheet dated
06.08.2004, under Sections 279, 304A &
427 IPC, filed by the police against Raj
Kishore; original copy of the appointment
letter dated 24.07.2003 issued to the
deceased
by
M/S
Ivy
Comptech,
Hyderabad; original salary slip; attested
photocopy of the driving license of the
deceased; photocopy of the insurance
policy whereunder the offending truck was
insured; photocopy of driving license of
Raj Kishore, the driver of the offending
truck; photocopy of the site plan prepared
by the police during the course of
investigation. The Insurer, on the other
hand, did not adduce any documentary
evidence or oral evidence.

12. In the wake of the evidence led
and the arguments advanced, the Tribunal
decided the issues framed as hereunder.

13. Issue No.-1 and Issue No.-2 were
decided together by the Tribunal. The
Tribunal observed that the onus to prove
the factum of the accident lay upon the
claimants whereas the onus to prove that
there was contributory negligence on the
part of the deceased lay on the Insurer. As
regards the factum of the accident, the
Tribunal held that since the Insurer
admitted that the accident did take place,
factum of the accident stood proved. On the
question if the accident was caused solely
by the rash and negligent driving on the
part of the driver of the offending truck or
did negligence on the part of the deceased
also played a role, the Tribunal attributed
the fault for the accident equally between
both the deceased and the driver of the
offending truck. The Tribunal observed that
the claimants did not examine ''actual'
eyewitnesses to prove the factum of the
accident while the Insurer did not examine
the driver of the offending truck to prove
negligence on part of the deceased. It was,
thus, reasonable to assume that both the
deceased and the driver of the offending
truck were equally at fault. The Tribunal
referring to the record had observed that the
record indicated that the accident resulted
from a head on collision between the car
driven by the deceased and the offending
truck and that the deceased sustained
injuries in the accident which ultimately led
to his death, which, as per the Tribunal,
justified the conclusion that the accident
resulted from the fault of both the deceased
and the driver of the offending truck.

14. On issue No.-3, the Tribunal
found that the driving license was valid at
the time of the accident.

15. Issue No.-4 entailed determination
on the point if the offending truck was
under insurance by the Insurer at the time
110 INDIAN LAW REPORTS ALLAHABAD SERIES
of the accident and if it was being driven in
violation of terms and conditions of the
insurance policy. The Tribunal examined
the insurance policy document and found
that the offending truck was insured by the
Insurer for the period from 03.06.2004 to
02.06.2005 and, thus, Insurance policy was
alive when the accident took place on
20.07.2004. The Tribunal also found that
there was nothing on record to indicate that
the offending truck was being driven in
violation of the terms and conditions of the
insurance
policy
when
the
accident
occurred.

16.

Issue
No.5
concerned
compensation.
The
Tribunal
had
to
determine if the claimants were liable to
receive any compensation, and, if so, the
quantum of compensation and from whom.
The Tribunal held that the claimants were
liable to be compensated. The Tribunal
then went on to determine the quantum of
compensation. As per the pay slip filed by
the claimants in evidence, the deceased was
earning a monthly sum of Rs.13,080/-,
which included Rs.5500/- in basic pay,
Rs.1700/- in dearness allowance, Rs.800/-
in transportation allowance, Rs.2200/- in
house rent allowance, Rs.1000/- in medical
allowance, Rs.1100/- in lunch allowance
and Rs.780/- in LTA. The Tribunal held
that for the purpose of quantification of
compensation only basic pay and dearness
allowance were relevant. The income of the
deceased, for the purpose of determination
of compensation, was, therefore, taken to
be Rs.7200/- per month (Rs.5500/- in basic
pay + Rs.1700/- in dearness allowance),
which, on an annual basis, worked out to
Rs.86,400/-.
Thereafter,
the
Tribunal
deducted one-third (1/3rd) of said income
towards personal and living expenses
which left Rs.57,600/- as the multiplicand.
Applying an age-multiplier of 8 based on
the age of the claimant no.2, who was 57
years old at the time of the accident, the
figure for ''loss of dependency' was
computed at Rs.4,60,800/- (8 x 57600).
Said
figure
was
then
halved
to
Rs.2,30,400/-
to
account
for
the
contributory negligence on the part of the
deceased. Nothing was added either in the
future prospects or under the conventional
heads (loss of estate, loss of consortium,
funeral
expenses).
The
compensation
payable to the claimants was, resultantly,
computed at Rs.2,30,400/-. Additionally,
simple interest at the rate of 8 % per annum
from the date of the decision was also
awarded.
The
liability
to
pay
the
compensation to the claimants was fastened
upon the Insurer.

17. Having thus determined the issues
framed, the Tribunal proceeded to order the
Insurer to pay the claimant no.2 (the
claimant no.1 had already died during the
pendency of MACP) Rs.2,30,400/- as
compensation along with simple interest at
the rate of 8 % per annum for the period
from the date of the order to the date of
disbursal of payment. The Insurer was
directed to deposit a cheque of said amount
with the Tribunal within a period of one
month out of which Rs.1,50,000/- was
directed to be deposited in a fixed deposit
account in the name of the claimant no.2 in a
nationalized bank and the rest was directed
to be disbursed to the claimant no.2.

18. The aforesaid judgment and order
dated 24.01.2009 rendered by the Tribunal
has come to be challenged by the claimants
before this Court by the instant FAFO.

RIVAL CONTENTIONS

19. The learned counsel for the
claimants assailed the judgment and order
1 All. Dr. Anoop Kumar Bhattacharya & Anr. Vs. National Insurance Co. Ltd. & Anr.
111
dated 24.01.2009 rendered by the Tribunal
on multiple grounds which are as follows: -

i) The Tribunal has erroneously
disbelieved the testimony of PW-2 who had
proved both the factum of the accident and
also that the accident took place because of
rash and negligent driving on the part of the
driver of the offending truck;

ii) The finding that there was
contributory negligence on the part of the
deceased rendered by the Tribunal is
absolutely arbitrary and unwarranted. The
deposition of PW-2 proved that it was rash
and negligent driving on the part of the
driver of the offending truck which led to
the accident. Even though said testimony
could not be shaken, it was arbitrarily
disregarded by the Tribunal which went on
to conclude, without any positive evidence
that both the drivers were to blame for the
incident. Reliance was placed on Pramod
Kumar Rasikbhai Jhaveri V. Karmasey
Kunvargi Tak (2002 (6) SCC 155),
Mohammed Siddique & Another V.
National Insurance Company Ltd. &
Others (2020 (3) SCC 57), Jiju Kuruvila
& Others V. Kunjujamma Mohan &
Others (2013 (9) SCC 166);

iii) It was argued that the
Tribunal, in its adjudication, has refused to
take into consideration the FIR, the charge
sheet and the site plan brought on record by
the
claimants
contending
that
said
documents, which were part of the police
record, do not constitute evidence and that
the claimants must produce their own
evidence, whereas, on the other hand, the
Tribunal, to justify its decision to ignore
the testimony of PW-2, has contended that
the testimony of PW-2 is liable to be
disbelieved
because
even
though
he
claimed to have witnessed the accident and
to have taken the deceased and the claimant
no.1 to the hospital, his name did not
figure either in the FIR or in the list of
witnesses set out in the chargesheet or in
the hospital records. In the eyes of the
Tribunal, the testimony of PW-2 was,
therefore,
suspicious.
The
reasoning
adopted by the Tribunal is, therefore,
inherently self-contradictory because one
cannot rely on the same set of documents
for one reasoning and reject it at the same
time;

iv) The Tribunal has committed
an error in opting to altogether ignore the
FIR, the charge sheet and the site plan in its
adjudication as the said documents were
material to be taken into consideration for
deciding as to who was at fault in the case
of an accident, and the Tribunal cannot
altogether ignore the said documents
without any good reason;

v) The income of the deceased,
for the purposes of quantification of
compensation, was arbitrarily taken to be
Rs.7,200/- even though it was clear from
the pay slip filed in the evidence that the
deceased earned Rs.13,080/- as monthly
pay. Loss of future earnings was not taken
into account in computing the income of
the
deceased.
The
multiplier
was
erroneously chosen based on the age of the
claimant no.2 whereas it ought to have
been chosen based on the age of the
deceased. No amount was awarded for the
future prospects. No amount was awarded
under conventional heads. The Tribunal
had also erred in awarding interest from the
date of the decision instead of the date of
the institution of the case. At any rate, the
compensation awarded by the Tribunal
amounts to a pittance. It does not amount to
''just compensation' and deserves to be
modified.
Reliance
was
placed
on
Mohammed Siddique & Another V.
National Insurance Company Ltd. &
112 INDIAN LAW REPORTS ALLAHABAD SERIES
Others (2020 (3) SCC 57), Arvind
Kumar Mishra V. New India Assurance
Co. Ltd. & Another (2010 (10) SCC 254),
Neeta W/O Kallappa Kadolkar & Others
V. Div Manager, MSRTC, Kolhapur
(2015 (16) SCC 680), National Insurance
Company Ltd. V. Pranay Sethi & Others
(2017
(16)
SCC
680),
Jabbar
V.
Maharashtra State Road Transport
Corporation (2019 0 Supreme(SC) 2283).

20. Per contra, the learned counsel for
the Insurer has refuted the arguments
advanced on behalf of the claimants. The
contentions advanced by the learned
counsel for the Insurer are as follows: -

(i) The Tribunal committed no
error in disbelieving the testimony of PW-2
who had asserted that he had not only
witnessed the accident but had also
extricated the victims (the deceased and the
claimant no.1) out of the wreckage with the
help of the local people and had taken them
to the hospital. The name of PW-2,
however, did not find mention even in the
hospital records. Moreover, the claimant
no.1 who lodged the FIR regarding the
incident with the police on the next day did
not
mention
anything
about
PW-2.
Additionally, the charge sheet filed by the
police in the matter did not include PW-2
in the list of witnesses. The learned counsel
contends that said circumstances render the
presence of PW-2 on the spot at the time of
the accident doubtful and the Tribunal,
therefore, had rightly concluded that the
testimony of PW-2 was suspected and was
liable to be disbelieved;

(ii) The finding that there was
contributory negligence on the part of the
deceased which led to the accident and that
the driver of the truck could not be solely
blamed for the accident was completely
justified. The Tribunal had drawn adverse
inference
against
the
claimants
for
withholding
the
best
evidence.
The
claimants examined PW-2 to prove that the
accident resulted from rash and negligent
driving on the part of the driver of the
offending truck whose testimony was found
suspected and his presence on the spot
doubtful. The claimants examined PW-2,
even though his name did not figure either
in the hospital records or the FIR or the
charge sheet, whereas they could instead
have examined somebody who was actually
listed as a witness in the charge sheet. As
such, the Tribunal was completely justified
in drawing an adverse inference against the
claimants for not examining an actual
witness and instead producing PW-2 whose
presence on the spot was found doubtful.
The finding of contributory negligence on
the part of the deceased in the accident,
therefore, requires no interference;

(iii) The approach adopted by the
tribunal whereby it had opted to ignore the
FIR, the charge sheet and the site plan in
adjudicating the claim petition is based on
the sound principles and is in consonance
with with law;

(iv) The quantum of compensation
awarded to the claimants by the Tribunal is
erroneously computed and deserves to be
modified.
Contrary
to
the
contention
advanced on behalf of the claimants, the
income of the deceased, for the purpose of
computation of quantum of compensation,
was rightly taken to be Rs.7200/-. An error
was, however, committed in deducting only
1/3rd of said income towards personal and
living expenses. At the time of death, the
deceased was only 24 years old and
unmarried. The law is now settled that in
case the deceased is a bachelor and the
claimants are the parents, normally a 50%
deduction shall be made towards personal
and living expenses. The Tribunal was,
therefore, in error in deducting only 1/3rd of
1 All. Dr. Anoop Kumar Bhattacharya & Anr. Vs. National Insurance Co. Ltd. & Anr.
113
the income of the deceased towards personal
and living expenses. The tribunal had also
erred in awarding interest at the rate of 8%
which could only be awarded at the rate of
7.5%. To that extent, the quantum of
compensation deserves to be modified.
Reliance was placed on Smt. Sarla Verma
&
Others
V.
Delhi
Transport
Corporation
&
Another
(2009
2
SCC(Civ) 770) and National Insurance
Company Limited V. Mannat Johal And
Others ( (2019) 15 Supreme Court Cases
260).

ANALYSIS

21. We have heard the learned
counsels for the contesting parties at length
and have examined the record.

22. The following points arise for our
consideration: -

i) Whether the tribunal had
adopted a correct approach in opting to
altogether
exclude
from
evidence
documents such as the FIR, charge sheet
and site plan which formed part of the
police record?

ii) Whether the tribunal was
justified in disbelieving the testimony of
PW-2 on the ground that his name did not
figure either in the FIR or the charge sheet
or the hospital records?

iii)
Whether
the
claimants
satisfactorily discharged the burden to
prove the factum of the accident and
negligence on the part of the driver of the
offending vehicle?

iv) Whether the tribunal was
justified
in
holding
that
there
was
contributory negligence on part of the
deceased?

v) Whether the quantum of
compensation determined by the Tribunal
''just' and in accordance with well settled
legal principles? If not, what should be the
quantum of compensation to which the
claimants are entitled to?

23. We shall now proceed to answer
the aforesaid questions.

24. The first point that falls for
consideration concerns the correctness and
validity of the approach adopted by the
Tribunal in so far as the Tribunal opted to
ignore
and
exclude
from
evidence
documents such as the FIR, the charge
sheet and the site plan, which formed part
of the police record. In justification of its
approach, the Tribunal invoked judgment
rendered by the Punjab and Haryana High
Court in B D Bagri Vs Daulat Ram and
Others, reported in 1998 ACJ 1303, along
with the judgment delivered by the Orissa
High Court in Mata Ji Beva and Others
Vs Hemant Kumar, reported in 1994 ACJ
1303. In B D Bagri (supra), the Punjab
and Haryana High Court held that while
dealing with a matter of compensation
arising out of an accident, the Tribunal
must decide on the strength of the evidence
led before it and that no inference can be
drawn from the contents of the FIR to
confer liability on the driver of the vehicle
involved in the accident. Placing reliance
on B D Bagri (supra), the Tribunal
observed that no inference can be drawn on
the basis of the contents of the FIR and that
based on the FIR it cannot be concluded
that the driver of the offending truck was
involved in the accident. On the other hand,
in Mataji Bewa (supra), the Orissa High
Court held that the contents of a charge
sheet filed in the criminal case cannot
114 INDIAN LAW REPORTS ALLAHABAD SERIES
possibly be treated as evidence in claim
proceedings. Accordingly, the Tribunal
opted to disregard the charge sheet filed in
evidence by the claimants.

25. To our mind, what documents can
and what documents cannot form part of the
evidence in claim proceedings arising out of
motor vehicle accidents must necessarily bear
nexus with the character and complexion of
the proceedings themselves. Thus, before we
can hold forth on the correctness or otherwise
of exclusion of the documents which form
part of the police record from evidence in
claim proceedings, we must first pause to
remind ourselves of the nature of such claim
proceedings.

26. It is well settled that the standard of
proof applicable to claim proceedings arising
out of motor vehicle accidents is that of
preponderance of probabilities and not that of
proof beyond reasonable doubt. In the case of
Anita Sharma and Others Vs The New
India Assurance Co. Ltd. And Another,
reported in 2021 (1) SCC 171, the Hon'ble
Supreme Court, as regards applicability of the
standard of preponderance of probabilities to
claim proceedings arising out of motor
vehicle accidents, observed thus: -

"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 preponderance of
probabilities, rather than beyond reasonable
doubt. One needs to be mindful that the
approach and role of Courts while examining
evidence in accident claim cases ought not to
be to find fault with non-examination of some
best eye-witnesses, 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 and Others v. Joaquim Xavier
Cruz and Others reported in (2013) 10 SCC
646 wherein this Court reiterated that:

"7. It would hardly need a mention
that the plea of negligence on the part of the
first respondent who was driving the pick-up
van as set up by the claimants was required
to be decided by the learned Tribunal on the
touchstone
of
preponderance
of
probabilities and certainly not on the basis
of proof beyond reasonable doubt. (Bimla
Devi v. Himachal RTC [(2009) 13 SCC 530
: (2009) 5 SCC (Civ) 189 : (2010) 1 SCC
(Cri) 1101]" (emphasis supplied)

27. The principle of preponderance of
probabilities
as
applicable
in
claim
proceedings was spelt out by a Constitution
Bench of the Hon'ble Supreme Court in the
case of M. Siddiq Vs. Suresh Das, reported
in (2020) 1 SCC 1, in the following terms: -

"720. The court in a civil trial
applies a standard of proof governed by a
preponderance of probabilities. This standard
is also described sometimes as a balance of
probability or the preponderance of the
evidence. Phipson on Evidence formulates the
standard succinctly: If therefore, the evidence is
such that the court can say "we think it more
probable than not", the burden is discharged,
but if the probabilities are equal, it is not.
[Phipson on Evidence.]"

28. As such, it is clear that in claim
proceedings arising out of motor vehicle
accidents, the task of the tribunal is to
evaluate the pleadings and the evidence
with a view to form an opinion whether the
case set up by a claimant is more probable
or not.
1 All. Dr. Anoop Kumar Bhattacharya & Anr. Vs. National Insurance Co. Ltd. & Anr.
115

29. We may now revert to the original
question whether Tribunal was correct in
altogether excluding from evidence the
documents such as the FIR, the site plan
and the charge sheet, which form part of
the police record.

30. We have no doubt in our mind
that the answer to the aforesaid question
must be a resounding ''No'. The Tribunal
opted to ignore the FIR, the charge sheet
and the site plan on the ground that they do
not establish either that the driver of the
offending truck was involved in the
accident or that he was guilty of rash and
negligent driving. In our opinion, the
Tribunal would have been correct had the
standard of proof in claim proceedings
been that of beyond reasonable doubt as is
the case with criminal proceedings. Even in
a criminal proceedings, these documents
may be considered to corroborate the
evidence led in the court and not to be
completely disregarded or ignored. In any
case, corroborative value of the police
record cannot be ignored completely
though decision may not be based solely
upon them. Moreover, the standard of proof
in the claim proceedings is not that of proof
beyond reasonable doubt but that of
preponderance
of
probabilities.
The
Tribunal on assessment of evidence before
it had to satisfy itself that it was more likely
than not that the events as alleged in the
claim petition had transpired. To our mind,
the documents such as the FIR, the site map
and the charge-sheet, which form part of
the police record, even though they do not
establish the occurrence when considered
holistically and prudently could help draw
an informed and intelligent inference as to
the degree of probability which lends itself
to the case set up by a claimant. Was the
FIR promptly lodged or was it lodged after
an undue delay? Does the site plan
conform to the recital contained in the FIR?
Do injuries sustained corroborate the recital
contained in the FIR? Does the charge
sheet bolster the allegations contained in
the FIR? These are the factors which when
considered fairly and prudently could help
to assess if the case set up by the claimants
was more probable or not. As such, we
consider it an error to altogether ignore the
said documents on the ground that they
were
not
conclusive
proof
of
the
occurrence more sosince that is not the goal
of claim proceedings in the first place.

31. We may also refer to the judgment
of the Hon'ble Supreme Court in Mangla
Ram Vs. Oriental Insurance Company
and Others, reported in (2018) 5 SCC
656, wherein a somewhat similar factual
situation arose. The claim proceedings
arising out of an accident between a
motorcycle and a jeep in which the rider of
the motorcycle sustained severe injuries,
leading to the amputation of his right leg
below the knee, came to be instituted
before the tribunal. Despite disbelieving the
oral evidence adduced by the witnesses
examined by the claimant, the tribunal
eventually ruled in favour of the claimant
placing reliance on the FIR and the charge
sheet filed by the police and proceeded to
award compensation to the claimant. The
matter, thereafter, reached the Rajasthan
High Court. The High Court did not
concur, taking the view that the tribunal
could not have ruled in favour of the
claimant by relying solely on the police
record and set aside the judgment rendered
by the Tribunal. The judgment delivered by
the High Court was challenged by the
claimant before the Supreme Court. The
Supreme
Court
contradicted
the
observations of the High Court and
116 INDIAN LAW REPORTS ALLAHABAD SERIES
confirmed the findings of the tribunal
notwithstanding that they were based on
documents which formed part of the police
record.
The
Hon'ble
Supreme
Court
observed thus:-

"16. The question is: whether this
approach of the High Court can be
sustained in law? While dealing with a
similar situation, this Court in Bimla Devi
(supra) noted the defence of the driver and
conductor of the bus which inter alia was
to cast a doubt on the police record
indicating that the person standing at the
rear side of the bus, suffered head injury
when the bus was being reversed without
blowing any horn. This Court observed that
while dealing with the claim petition in
terms of Section 166 of the Motor Vehicles
Act, 1988, the Tribunal stricto sensu is not
bound by the pleadings of the parties, its
function is to determine the amount of fair
compensation. In paragraphs 11 to 15, the
Court observed thus:

"11. While dealing with a claim
petition in terms of Section 166 of the
Motor Vehicles Act, 1988, a tribunal
stricto sensu is not bound by the
pleadings of the parties; its function
being to determine the amount of fair
compensation in the event an accident
has taken place by reason of negligence
of that driver of a motor vehicle. It is
true that occurrence of an accident
having
regard
to
the
provisions
contained in Section 166 of the Act is a
sine qua non for entertaining a claim
petition but that would not mean that
despite evidence to the effect that death
of the claimant's predecessor had taken
place by reason of an accident caused by
a motor vehicle, the same would be
ignored only on the basis of a postmortem report visàvis the averments
made in a claim petition.

12.
The
deceased
was
a
constable. Death took place near a police
station. The postmortem report clearly
suggests that the deceased died of a brain
injury. The place of accident is not far from
the police station. It is, therefore, difficult
to believe the story of the driver of the bus
that he slept in the bus and in the morning
found a dead body wrapped in a blanket. If
the death of the constable had taken place
earlier, it is wholly unlikely that his dead
body in a small town like Dharampur
would remain undetected throughout the
night particularly when it was lying at a
busstand and near a police station. In such
an event, the court can presume that the
police officers themselves should have
taken possession of the dead body.

13. The learned Tribunal, in our
opinion, has rightly proceeded on the
basis that apparently there was absolutely
no reason to falsely implicate Respondents
2 and 3. The claimant was not at the place
of occurrence.

She, therefore, might not be
aware of the details as to how the accident
took place but the fact that the first
information report had been lodged in
relation to an accident could not have been
ignored.

14. Some discrepancies in the
evidence of the claimant's witnesses might
have occurred but the core question before
the Tribunal and consequently before the
High Court was as to whether the bus in
question was involved in the accident or
not. For the purpose of determining the
said issue, the Court was required to apply
the principle underlying the burden of
proof in terms of the provisions of Section
106 of the Evidence Act, 1872 as to
whether a dead body wrapped in a blanket
had been found at the spot at such an early
hour, which was required to be proved by
Respondents 2 and 3.
1 All. Dr. Anoop Kumar Bhattacharya & Anr. Vs. National Insurance Co. Ltd. & Anr.
117

15. In a situation of this nature,
the Tribunal has rightly taken a holistic
view of the matter. It was necessary to be
borne in mind that strict proof of an
accident caused by a particular bus in a
particular manner may not be possible to
be done by the claimants. The claimants
were merely to establish their case on the
touchstone
of
preponderance
of
probability.