# Girish Kumar Gupta v. Brijesh Tyagi & Ors

- **Citation:** (2021) 11 ILRA 876
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-24
- **Case number:** First Appeal From Order No. 3264 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girish-kumar-gupta-v-brijesh-tyagi-ors-46666
- **Pages:** 4

## Headnote

Civil Law - Accidental Injury - Motor Accident
Claim - Motor Vehicles Act ,1988 - Section 166 -
appellant a policeman sustained grievous head
injury, when a motorcycle dashed him from
behind, accident occurred near police station -
Claim petition dismissed as F.I.R. was lodged on
next day - Held - claim petition cannot be
dismissed just because there is delay in lodgment
of the F.I.R. by one day - involvement of vehicle
proved as charge sheet laid - Tribunal committed
an error in not considering the fact that the doctor
opined that the injured was under his treatment
since the date which was mentioned in the F.I.R.
and the claim petition - Driver of vehicle present
at place of accident and he himself accepted that
he had gone to bus stand to drop somebody -
Matter remitted to Tribunal to decide quantum.

Allowed. (E-5)

List of Cases cited:

## Text

876 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)11ILR A876
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

First Appeal From Order No. 3264 of 2014

Girish Kumar Gupta ...Appellant
Versus
Brijesh Tyagi & Ors. ...Respondents

Counsel for the Appellant:
Sri K.P. Pandey, Sri K.C. Pandey

Counsel for the Respondents:
Sri Nagendra Kr. Srivastava, Sri Saral Srivastava,
Sri V.K. Maurya, Sri V.K. Maurya

Civil Law - Accidental Injury - Motor Accident
Claim - Motor Vehicles Act ,1988 - Section 166 -
appellant a policeman sustained grievous head
injury, when a motorcycle dashed him from
behind, accident occurred near police station -
Claim petition dismissed as F.I.R. was lodged on
next day - Held - claim petition cannot be
dismissed just because there is delay in lodgment
of the F.I.R. by one day - involvement of vehicle
proved as charge sheet laid - Tribunal committed
an error in not considering the fact that the doctor
opined that the injured was under his treatment
since the date which was mentioned in the F.I.R.
and the claim petition - Driver of vehicle present
at place of accident and he himself accepted that
he had gone to bus stand to drop somebody -
Matter remitted to Tribunal to decide quantum.

Allowed. (E-5)

List of Cases cited:

1. Anita Sharma & ors. Vs The New India Assurance
Company Ltd. & anr. 2020 0 Supreme (SC) 704

2. Mangla Ram Vs Oriental Insurance Co. Ltd. & ors.,
2018 5 SCC 656
3. Jai Prakash Vs National Insurance Com. Ltd. 2010
(2) GLR 1787

4. Anil Vs National Insurance Company reported in
2018 ACJ 729

5. Parmeshwari Vs Amir Chand, (2011) 11 SCC 635

6. Sunita & ors. Vs Rajasthan State Road Transport
Corporation, AIR 2019 SC 994

(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J.
&
Hon'ble Subhash Chand, J.)

1. Heard learned counsel for the parties.

2. This appeal challenges the Judgment and
order dated 31.3.2014 passed by Motor Accident
Claim Tribunal/Additional District Judge, Room
No.6, Ghaziabad (hereinafter referred to as the
Tribunal) in Motor Accident Claim Petition No.
570 of 2011, Girish Kumar Gupta Vs. Brijesh
Tyagi and others.

3. The Tribunal has dismissed the claim
petition filed by the appellant herein, who had
sustained grievous head injury. The claimant
filed the claim petition alleging that on 9.6.2011
when he along with his wife Prabha Gupta were
moving on their feet on their correct side and
when they reached in front of old bus-stand
Ghaziabad near over bridge at about 9.30 am, a
young boy driving a Pulsar motorcycle bearing
Registration No. UP 14 AE 3202 rashly and
negligently came and dashed the claimant from
behind.

4. At the time of accident, the claimant
aged about 55 years was an ASI posted at Police
Department
whose
monthly
income
was
Rs.34,850/-. The F.I.R. was lodged as Crime No.
752 of 2011. The claimant, when filed the
petition, was in coma. Dr. Atul Gupta, who was
attached with Yashoda Hospital, Ghaziabad
11 All. Girish Kumar Gupta Vs. Brijesh Tyagi & Ors.
877
treated him. The respondent no. 1 and 2 filed
their reply of denial but averments made in paras
14 to 17 were accepted. The respondents
contended in the written statement that no such
accident had taken place. Para 23 of the written
statement is quoted as under:-

";g fd ;kfpdk dh /kkjk 23 dh mi/kkjkvksa
ds dFku vLohdkj gSA ;kfpdk dh eksVj lkbfdy ls
dksbZ nq?kZVuk ugh gqbZ gS izfroknh la[;k 2 izfroknh
la[;k ,d dh fj'rsnkj dks cl vM~Mk ij okfil
izfroknh la0 1 ds ?kj tk jgk Fkk rHkh fdlh vKkr
okgu }kjk ftls vU; okguks dh HkhM+ ds dkj.k izfroknh
la[;k 2 ugh ns[k ldk ;kph tks chp lM+d ij py
jgs Fks dks Vddj ekj nh izfroknh la0 2 mlh oDr
ogk ls xqtjk Fkk lEHkor% fdlh us Hkwyo'k ;kph dh
eksVj lkbfdy dks nq?kZVuk dkfjr djus okyk okgu
le> dj mldh eksVj lkbfdy dsk uEcj uksV dj
fy;k ;kphx.k dks eksVj lkbfdy ls dksbZ nq?kZVuk ugh
gqbZA nq/kZVuk ;kph ds vR;kf/kd okgu lapkfyr gksus
okyh lM+d ds e/; ykijokgh ls pyus ds dkj.k
nq?kZVuk gq;hA^^

5. The Insurance Company also filed its
reply of denial and contended that the vehicle
was not involved and accepted that vehicle was
insured with it from 20th October 2010 to 19th
October 2011.

6. The appellant herein examined P.W. 1
Prabha Gupta, wife of the injured. P.W. 2
Balveer Singh stated that he looks after the
injured and he has suffered parlytic stroke
because of this accident and, for two years, he
has been under treatment. In his crossexamination, he was asked as to who stays with
him and whether the witness has passed any
nursing course or not. Dr. Atul Gupta has been
examined as P.W. 3 under whom the treatment
of the injured was going on. In his testimony, it
is mentioned that even in the case paper he has
mentioned that the injured was injured due to
accidental injuries and had produced all the
documents. P.W. 4 Mangal Sain has been
examined so as to depose about the income and
fact that from 9.6.2011, he is on leave.

7. As far as the respondents are concerned,
DW 2 who is one Pratap son of Hari Kishan, has
mentioned that respondent no. 2 had gone to the
bus station to drop the relative of respondent
no.1 and when he was returning therefrom to the
house of respondent no.1, one unknown vehicle
which he could not see due to crowd, dashed
with the claimant in front of bus stand when he
passed through at the very moment. Someone
taking it the motorcycle of respondent no.2
which caused the accident, noted number of his
motorcycle. Later on, he deposed that no
accident occurred due to the said vehicle. He had
not withstood the cross-examination despite his
evidence has been believed by the Tribunal. He
accepts that he did not see the claimant on the
road. Pratap, in the cross-examination, accepted
that he came out of the bus station but he
disputes the timing. He has accepted that the
charge-sheet is laid against him and the criminal
trial is going on. He has accepted that the
learned Advocate had prepared his affidavit and
written statement. He had only singed on the
same.

8. Learned counsel for the appellant has
heavily relied on the decisions of Apex Court in
Anita Sharma and others Vs. The New India
Assurance Company Ltd. and another, 2020 0
Supreme (SC) 704 and Mangla Ram Vs.
Oriental Insurance Co. Ltd. and others, 2018
5 SCC 656. According to him, both these
Judgments are in favour of the appellant.

9. The submission of Sri N.K. Srivastava is
that as the petition has rightly been dismissed as
though the injured is a policeman and the
accident occurred near the police station, the
F.I.R. was lodged on the next day. Thus, the
Tribunal has rightly, according to Sri Srivastava,
rejected the claim petition.
878 INDIAN LAW REPORTS ALLAHABAD SERIES

10. We are concerned mainly with issue
no.1 which has been answered in the negative on
the basis of fact that she did not register the
F.I.R. immediately despite the fact that her
husband is a police officer. The F.I.R. was
lodged on the next date. The claim petition was
dismissed because there are some discrepancies
in the timings. The Tribunal decided all the other
issues also and dismissed the claim petition.

11. We have perused the evidence. Though
the F.I.R. was lodged on the next day, the
Judgment of the Apex Court Jai Prakash Vs.
National Insurance Company Ltd. 2010 (2)
GLR 1787 wherein the Apex Court has held that
the police authorities are under a duty to
intimate the Court regarding the accident having
taken place and, therefore, dismissing the claim
petition on this ground is bad and is against the
mandate of the Supreme Court. In Anita
Sharma & others Vs. The New India
Assurance Co. Ltd & another, 2020 0
Supreme 52, it was held by the Supreme Court
that strict principles of evidence and standards of
proof like in a criminal trial are inapplicable in
MACT claim cases and it is commonplace for
most people to be hesitant about being involved
in legal proceedings and they do not volunteer to
become witnesses. In Mangla Ram Vs.
Oriental Insurance Co. Ltd & others, 2018 4
Supreme 525, it was held by the Supreme Court
that Tribunal stricto sensu not bound by
pleadings of parties. Its function is to determine
amount of fair compensation and even if
Insurance Company is not held liable, principle
of ''pay and recover' can be invoked. Based on
the same, the learned counsel has contended that
the findings of the Tribunal are based on
misreading of the evidence on record. The
Tribunal has committed an error in not
considering the fact that the doctor opined that
the injured was under his treatment. The
evidence clinches that the injured has been in
hospital since the date which he has mentioned
in the F.I.R. and the claim petition.

12. The Judgment of the Apex Court in the
case of Anil Vs. National Insurance Company
reported in 2018 ACJ 729 will also come to the
aid of the claimant. The claim petition cannot be
dismissed just because there is delay in
lodgment of the F.I.R. by one day. The
involvement of the vehicle is proved. The reason
being charge sheet is laid. It is not proved by the
respondent that on the said date, he was not on
that road rather he accepts the fact that he was
on the said road. He had gone to drop somebody
at the bus stand and in the absence of evidence
to the contrary that the evidence have been
planted, the Tribunal could not have dismissed
the claim petition. The F.I.R. was registered.
The deposition of the eye witness could not have
been discarded in the manner in which the
Tribunal has done. It was the solemn duty of the
Tribunal to take a holistic view of the matter as
held by the Apex Court in Jai Prakash (supra)
and several precautions are given to the police
authorities so as to comply with Section 166 (4)
of the Motor Vehicle Act 1988. The decision in
the case of Mangla Ram (supra) and the recent
Judgment in Anita Sharma (supra) would apply
to the facts of the case. The Judgment in
Parmeshwari Vs. Amir Chand, (2011) 11
SCC 635, relied in the case of Anita Sharma
(supra) would also come to the aid of the
appellant. The Judgment of the Apex Court in
Sunita and others Vs. Rajasthan State Road
Transport Corporation, AIR 2019 SC 994
will also come to the aid of the appellant herein
where the wife was examined but just because
there is difference in the timing which she has
narrated in oral testimony and the timing given
to the respondent are different, the claim petition
has been dismissed.

13. We have perused the paper book also
which shows that the accident had occurred but
same has been disbelieved by the Tribunal only
on the ground that she did not go to lodge F.I.R.
immediately. The Tribunal held that the accident
occurred but it occurred with this vehicle could
11 All. Smt. Prabha Sharma & Anr. Vs. The NIACL & Ors.
879
not be proved. This finding is perverse. The
driver of the vehicle was present at the place of
accident. He himself accepted that he had gone
to the bus stand to drop somebody and takes a
stand that his vehicle was not involved despite
the fact that the charge-sheet was already laid
against him.

14. Having perused the record, we are
convinced that the Tribunal has decided the
claim petition on surmises and conjectures and
had not taken a holistic view of the matter,
which was required to be taken. The chargesheet is laid against the driver and his presence
is accepted on timing but as the F.I.R. was
delayed by one day, the claim petition was
dismissed. We cannot concur with the Tribunal
rather for the reasons we have mentioned
hereinabove. The claim petition could not have
been dismissed when the aforesaid facts were
proved.

15. We would have decided the quantum
here but remit the matter to the Tribunal to
decide the quantum as all other issues have been
decided.
It
shall
hear
the
parties
for
compensation only. No further evidence be led
as the evidence is already led. The matter be
decided on or before 31st of December 2021 as
the accident is of the year 2011 and the appellant
is paralytic as mentioned by his counsel while
making his oral submissions.

16. Appeal is partly allowed with the
aforesaid observations.

17. Record be sent back to the Tribunal.

18. We are thankful to the counsel for both
the parties for ably assisting the Court in
deciding the appeal.
----------
(2021)11ILR A879
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

First Appeal From Order No. 3602 of 2018
with
First Appeal From Order No. 3994 of 2018

Smt. Prabha Sharma & Anr. ...Appellants
Versus
The NIACL & Ors. ...Respondents

Counsel for the Appellants:
Sri Amit Kumar Sinha, Deepali Srivastava Sinha

Counsel for the Respondents:
Sri Brijesh Chandra Naik, Archana Singh, Sri
Ajay Singh

Civil Law - Motor Accident Claim - Motor
Vehicles Act, 1988 - Section 166 - Insurance
Company contend that alleged accident did not
take place, vehicle insured was not involved
and was planted - Held - documentary evidence
such as certified copy FIR, certified copy of site
plan, charge-sheet and death certificate of
deceased was filed which prima facie prove
involvement of the vehicle in accident -
accident proved by eye witnesses - Doctor
proved that deceased was admitted in hospital
in injured condition & was given treatment -
FIR
though
was
lodged
belatedly
but
explanation was given - chargesheet was filed -
non conducting the post mortem cannot be
fatal
to
the
case
of
claimants
-
Held
involvement of the offending vehicle cannot be
accepted to be planted (Para 12)

Allowed. (E-5)

List of Cases cited:

1. Ravi Vs. Badrinarayan & ors. 2011 (1) T.A.C. 867
(S.C.)

2. Sumitra Kaur & anr. Vs. New India Assurance
Company Limited through Divisional Manager 2012
(4) T.A.C. 799 (All.)