# Kalyan Singh v. The New India Insurance Co. Ltd. & Anr

- **Citation:** (2023) 7 ILRA 630
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-01
- **Case number:** First Appeal From Order No. 225 of 1998
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalyan-singh-v-the-new-india-insurance-co-ltd-anr-50400
- **Pages:** 10

## Headnote

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation- claimant sustained injuries
on account of the accident -He was
admitted in the hospital and only after he
was discharged that he had lodged the
First Information Report-The claimant has
also brought on record the copy of the
First Information Report-He has also
brought on record the documents relating
to the offending driver being chargesheeted and being prosecuted in the same
accident-A number of documents, relating
his
initial
treatment
at
Navjeewan
Hospital at Lakhimpur Kheri and the
documents relating to his treatment at
K.G.M.U. has been brought on record,
however, none of the aforesaid documents
have been considered by the Tribunal in
its order- The claimant has also filed a
disability certificate indicating that he had
suffered 45% disability certificate which
has also not been noticed by the Tribunal
rather there is no mention, consideration
of the said documents in the judgment
7 All. Kalyan Singh Vs. The New India Insurance Co. Ltd. & Anr.
631
and why they have been discarded-the
bed head ticket from the District Hospital
shows that it was PW-1, who had brought
PW-2, the claimant to the hospital-The
bed head ticket is an official document
from the District Hospital and cannot be
trifled. This witness if not present, would
not have been the one to carry her father
to the hospital. At least the mention of her
name on the bed head ticket lends a
strong buttress to the claimant's case that
PW-1 was present at the scene of accident
and witnessed it. Read together with the
medical evidence, all of which has been
omitted
from
consideration,
the
inescapable conclusion is that the Tribunal
has gone completely wrong in finding
against the claimant on Issue No.1- The
finding of the Tribunal on Issue No.1 is,
accordingly, set aside and the issue is
answered in favour of the claimant;
against the owner and the Insurers-The
findings on Issues Nos.2 and 3 have been
recorded in favour of the claimant by the
Tribunal-Those
findings
are
affirmed-
Tribunal will hear the parties afresh with
full opportunity to lead evidence limited to
Issue No.4 alone. (Para 1 to 31)
The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

630 INDIAN LAW REPORTS ALLAHABAD SERIES
alleges to have been subjected to any act of
domestic violence by the respondent."

Meaning thereby the respondent
must
not
only
stand
in
domestic
relationship with the aggrieved person but
he should be one who has subjected the
aggrieved person to domestic violence.
Chapter IV of the Protection of Women
from
Domestic
Violence
Act,
2005
enumerates the kinds of orders which can
be passed against the 'respondent'. The
perusal of the provisions of Sections 18 to
22 clearly show that the relief can only be
granted against the respondent/respondents.
In case the above provisions are read
together the only reasonable and sensible
conclusion which can be drawn is that any
person who is not a respondent or who is
not found involved in domestic violence,
cannot be brought within the purview of
this Act. The courts cannot pass order
against any other person on the basis of
perceived threats or interference. If such a
course of action is allowed this shall set a
very dangerous trend, the consequences
whereof cannot be foreseen. It may happen
that any person whether or not standing in
any domestic relationship and whether or
not, has committed domestic violence may
become subject of mischief which may see
no end. The reasoning given by the learned
appellate court is improper and illegal. For
the sake of arguments if it is presumed that
there may be certain other members of the
family who are likely to interfere in her
right to reside in the shared household then
such an act may amount to an offence and
action can be taken as per law.

15. In my opinion, there was no
ground to actually interfere in the order
passed by the learned trial court on the
assumption that there is likelihood of
interference by the revisionists. The order
of the appellate court suffers from illegality
and impropriety and is therefore set aside.
Accordingly this revision is allowed.
----------
(2023) 7 ILRA 630
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2023

BEFORE

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

First Appeal From Order No. 225 of 1998

Kalyan Singh ...Appellant
Versus
The New India Insurance Co. Ltd. & Anr.
 ...Respondents

Counsel for the Appellant:
Sri R.K. Porwal

Counsel for the Respondents:
Sri Arun Kumar Shukla

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation- claimant sustained injuries
on account of the accident -He was
admitted in the hospital and only after he
was discharged that he had lodged the
First Information Report-The claimant has
also brought on record the copy of the
First Information Report-He has also
brought on record the documents relating
to the offending driver being chargesheeted and being prosecuted in the same
accident-A number of documents, relating
his
initial
treatment
at
Navjeewan
Hospital at Lakhimpur Kheri and the
documents relating to his treatment at
K.G.M.U. has been brought on record,
however, none of the aforesaid documents
have been considered by the Tribunal in
its order- The claimant has also filed a
disability certificate indicating that he had
suffered 45% disability certificate which
has also not been noticed by the Tribunal
rather there is no mention, consideration
of the said documents in the judgment
7 All. Kalyan Singh Vs. The New India Insurance Co. Ltd. & Anr.
631
and why they have been discarded-the
bed head ticket from the District Hospital
shows that it was PW-1, who had brought
PW-2, the claimant to the hospital-The
bed head ticket is an official document
from the District Hospital and cannot be
trifled. This witness if not present, would
not have been the one to carry her father
to the hospital. At least the mention of her
name on the bed head ticket lends a
strong buttress to the claimant's case that
PW-1 was present at the scene of accident
and witnessed it. Read together with the
medical evidence, all of which has been
omitted
from
consideration,
the
inescapable conclusion is that the Tribunal
has gone completely wrong in finding
against the claimant on Issue No.1- The
finding of the Tribunal on Issue No.1 is,
accordingly, set aside and the issue is
answered in favour of the claimant;
against the owner and the Insurers-The
findings on Issues Nos.2 and 3 have been
recorded in favour of the claimant by the
Tribunal-Those
findings
are
affirmed-
Tribunal will hear the parties afresh with
full opportunity to lead evidence limited to
Issue No.4 alone. (Para 1 to 31)
The appeal is partly allowed. (E-6)

List of Cases cited:

1. Sunita & ors. Vs RSRTC & ors. (2020) 13 SCC
486

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

3. Anita Sharma & ors. Vs New India Assur. Co.
Ltd & anr.. (2021) 1 SCC 171

4. Smt. Richa Khare & ors. Vs Ankit Gupta & ors.
FAFO No. - 120 of 2017

5. Chhotey Lal Vs The Oriental Ins. Co. Ltd. &
ors. FAFO No. - 1468 of 2021

(Delivered by Hon'ble J.J. Munir, J.)

This appeal by the claimant is directed
against a judgment and award passed by the
Motor Accident Claims Tribunal/ 8th
Additional District Judge, Etawah dated the
29th November, 1997, rejecting Motor
Accident Claims Petition No.107 of 1995.

2. According to the claimantappellant, Kalyan Singh (for short, 'the
claimant') on 27.11.1994 at about half past
six in the evening hours, rode out on his
scooter from an alley on to the Municipal
Bypass, connecting the Highway. A mini
truck, bearing registration No. UHK-300,
driven negligently and at a high speed,
without sounding horn, approached from
Auraiya end of the road and hit the
claimant's motor scooter. The collision led
the claimant to lose the little finger of his
left hand, that was crushed, broken and
severed. The mini truck sped away towards
Agra. The claimant was conveyed to the
District Hospital. The claimant went to
Police Station Kotwali to lodge a report on
11.01.1995, but the Police refused to
register
the
case
citing
the
delay.
Thereupon, on 12.01.1995, the claimant
sent a written information by registered
post to the Senior Superintendent of Police,
Etawah, which was a typed written
document. It is the claimant's case that if
the truck driver had not been negligent and
observed rules of the road, the accident
would not have happened and the claimant
spared the deprivation of a digit of his
hand. The deprivation has led the claimant
to suffer from a feeling of inferiority
complex and his capacity to work has
diminished. Accordingly, the claimant
instituted the present claim petition, asking
for a compensation in the sum of
Rs.2,29,000/-. He also sought interim relief
in the sum of Rs.20,000/-.

3. A written statement was filed by
one Shamim Begum, the owner of mini
truck, bearing registration No. UHK-300,
632 INDIAN LAW REPORTS ALLAHABAD SERIES
resisting the claim. Shamim Begum was
impleaded as opposite party No.1 to the
claim petition and is arrayed as respondent
No.2 to this appeal. She will hereinafter be
called 'the owner'. It was asserted in the
owner's written statement that the offending
truck was insured with The New India
Assurance Company Ltd. vide Cover Note
No.
169379,
comprehensively.
The
insurance was valid from 21.01.1994 to
20.01.1995. The obligation to make good
the compensation, therefore, rests with the
aforesaid Insurance Company. It has been
pleaded that on 27.11.1994, no crime was
reported at Police Station Kotwali. The
claimant has not fractured his finger in the
so called motor accident. It was denied that
the claimant earns a sum of Rs.5000/- per
month. He has suffered no loss of income.
The mini truck was being operated
carefully and according to the rules. Even if
the compensation be held payable, the
burden
would
go
to
the
Insurance
Company, considering that the offending
truck was insured on the date of the
accident. According to the owner, the claim
petition deserved to be rejected.

4. A separate written statement was
filed on behalf of The New India Assurance
Company Ltd. (for short, 'the Insurers')
urging in defence that no cause of action
arose to the claimant to institute this claim
petition. The claim petition was bad for
non-joinder of necessary parties, inasmuch
as the driver of the truck was not
impleaded. Also, it was bad for nonjoinder, because the insurer of the motor
scooter was not impleaded. On the date of
the accident, the offending truck was not
insured with the Insurers. The truck owner
has committed breach of the conditions of
insurance and did not inform the Insurers
about the accident. It is the claimant, who
has to prove that on the date of the
accident, the driver of the offending truck
held a valid licence and that the offending
truck had a route permit, besides a
registration certificate. It was pleaded that
unless the owner proves that premium for
the insurance policy had been credited in
the Insurers' account, the Insurers are not
liable to indemnify. In the alternative, it
was pleaded that the premium had not been
credited and there is a violation of Section
64-VB of the Insurance Act, 1938. The
Police have not complied with subSections (1) to (6) of Section 158 of the
Motor Vehicles Act, 1988 (for short, 'the
Act'). The offending truck was being
driven on the date of the accident without
the driver holding a valid driving licence
or the truck being covered by a permit.
The offending truck did not have a
registration certificate. The claimant has
wrongly asserted his age and the medical
expenses to be incurred in the future, all in
order to secure a higher award. The
compensation claimed under different
heads is wrong and bogus. The claim
petition deserved to be rejected.

5. On the pleadings of parties, the
following issues were framed (translated
into English from Hindi):

"1. Whether the driver of Truck
No. UHK-300 on 27.11.1994, driving it
negligently, caused injury to the claimant,
resulting in permanent disablement?

2. Whether on the date of the
accident, Truck No. UHK-300 was insured
with the Insurance Company, opposite
party No.2?

3. Whether on the date of the
accident, the driver held a valid driving
licence and the vehicle a permit and
registration (certificate)?
7 All. Kalyan Singh Vs. The New India Insurance Co. Ltd. & Anr.
633

4. To what compensation is the
claimant entitled and from which opposite
party?"

6. In support of the claim petition, the
claimant filed documents through list
bearing paper No.24-Ga and examined Km.
Radha Singh as PW-1 and himself as PW2.

7. The owner filed documents through
a list, paper No.17-Ga, numbering four. All
the documents are noticed to be photostat
copies by the Tribunal. No oral evidence
was led on behalf of the owner.

8. The Insurers filed documents
through a list, bearing paper No.31-Ga. It
includes a certified copy of the insurance
policy. No oral evidence was led on behalf
of the Insurers as well. Before the Tribunal,
the claim petition proceeded ex parte
against the owner and heard as such.

9. The Tribunal while answering Issue
No.1 held that no accident was caused by
the offending truck nor any injury sustained
by the claimant. Issue No.2 was answered
in the manner that on the date of accident,
the offending truck was validly insured
with the Insurers. Issue No.3 was answered
holding that on the date of the accident, the
driver of the offending truck had a valid
driving licence and that the offending truck
was moving on a valid permit and
registration certificate. Issue No.4 was
answered in the negative and against the
claimant in view of the findings returned on
Issue No.1.

10. Heard Mr. R.K. Porwal, learned
Counsel for the claimant and Mr. Arun
Kumar Shukla, learned Counsel for the
Insurers. No one has appeared on behalf of
the owner.

11. Mr. R.K. Porwal, learned Counsel
for the claimant has submitted that the
Tribunal has erred in disbelieving the
factum of accident and the injury sustained,
because there was no oral or other evidence
produced on behalf of the owner or the
Insurers. There was no reason to disbelieve
the
claimant's
testimony
and
the
documentary evidence. It is urged that the
documents filed clearly indicate the injury
sustained by the claimant in the accident.
Amongst these, of particular importance is
the disability certificate issued by the
Medical Board, where the injured is shown
to have sustained a disability to the extent
of 10% with the little finger of the left hand
being amputated.

12. Mr. Porwal has referred to the
testimony of PW-1, Km. Radha Singh, an eye
witness and that of PW-2, the victim, to say
that there is no reason to disbelieve their
evidence by holding them to be interested
witnesses. Mr. Porwal has pointed out the
documentary evidence with regard to the
injuries and the treatment papers that are on
record. Mr. Porwal has gone to the extent of
arguing that the Tribunal has virtually
accepted all that the Insurers have said in
their written statement without producing any
evidence. He has also criticized the Tribunal's
approach in disbelieving the victim's daughter
by dubbing her as an interested witness. It is
argued that non-registration of an FIR by the
Police does not make the factum of the
accident improbable or the injury sustained
doubtful. The Tribunal is not to look upto the
proceedings in the crime before the Police in
order to arrive at a correct conclusion
whether the accident happened in the manner
pleaded
and
the
consequent
injuries
sustained. The approach of the Claims
Tribunal in appraising the evidence has been
criticized by the learned Counsel as hypertechnical and hairsplitting.
634 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Mr. Arun Kumar Shukla, learned
Counsel for the Insurers, on the other hand,
has supported the impugned judgment and
submitted that there was a denial of the
involvement of the offending truck in the
accident. It is urged that no documentary
evidence was produced by the claimant to
prove the accident as one caused by the
offending truck. It is submitted that there
was no independent eye witness account of
the accident. Both the witnesses were
interested, that is to say, they were father
and daughter. The presence of PW-1,
Radha Singh has been urged to be doubtful,
because there is no mention about the fact
in the claim petition. It is submitted that the
claimant's case is based on a cock and bull
story with not the slightest of convincing
evidence about it. Mr. Shukla has placed
reliance upon the decision of a learned
Single Judge of this Court in Chhotey Lal
v. The Oriental Insurance Co. Ltd. and
others, FAFO No. - 1468 of 2021, decided
on
12.10.2022,
where
in
similar
circumstances relating to an injury case, it
was held:

"The record reveals that the
accident had taken place on 03.06.1983 and
the
claim
petition
was
filed
for
a
compensation of Rs.1,57,500/-. As per claim
petition, the claimant had got treatment for
the injuries suffered in the accident for three
months in Beli Hospital, Allahabad but he did
not file any prescription or other documents
to demonstrate that he met with an accident
and for the injuries suffered by him in the
accident, he was treated in Beli Hospital for
three months. The claimant has also not
produced any independent evidence to prove
the accident. Further the claimant did not file
any FIR in respect to the alleged accident.

It is true that the FIR is not
relevant to prove the accident but in the
instant case, there was no evidence on
record except the testimony of claimant
and, therefore, this Court finds that the
tribunal has rightly held that in absence of
any independent evidence or documentary
evidence on record, the claimant has failed
to prove the accident and, thus, this Court
does not find any illegality in the findings
returned by the tribunal."

14. Mr. Shukla has next placed
reliance on a decision of this Court in Smt.
Richa Khare and others v. Ankit Gupta
and others, FAFO No. - 120 of 2017,
decided on 08.03.2022, where it has been
held:

8. As per above case law, it is
held by the Apex Court that delay in
lodging the first information report should
not be treated to be fatal in genuine cases.
In this judgment, Hon'ble Apex Court has
laid emphasis on the words "in genuine
cases".
These
words
are
of
utmost
importance. In the facts and circumstances
of the case in hand, this case-law is not
applicable as the facts of this case are
entirely different. We had opined in ongoing discussion that it is evident from the
evidence on record that offending truck
was not involved in the accident. Merely
filing the charge-sheet cannot be the sole
basis to reach to the conclusion that
offending vehicle was involved in the
accident. In this case, firstly, the closurereport was filed by the Investigating
Officer, which mentions that the accident
took place due to slipping the wheel of the
motorcycle. Although, the charge-sheet
was filed by the Investigating Officer
against the driver of the truck after making
further investigation, but it is to be seen in
the light of the inquest report also wherein
there are five witnesses, who were closerelative of the deceased. The opinion of all
7 All. Kalyan Singh Vs. The New India Insurance Co. Ltd. & Anr.
635
the witnesses of inquest report was that
accident occurred due to slipping of frontwheel of the motorcycle. At the cost of
repetition, we again lay the emphasis on the
fact that inquest report was prepared after
six days of the accident and even then it is
not mentioned in it that accident took place
due to involvement of any vehicle. Hence,
we have no reason to differ with the view
taken by the learned Tribunal while
dismissing the claim petition.

15. Upon hearing learned Counsel for
the parties and perusing the record, what
this Courts finds is that the Tribunal indeed
has adopted a hyper-technical approach to
evaluate the parties' case. It has almost
imposed upon the claimant the standard of
proving his case beyond reasonable doubt.
That is not to be done at all in a claim
petition before the Tribunal. The Tribunal
has noted that PW-1, Radha Singh has said
that the offending truck had swerved to the
wrong side and hit her father's scooter,
causing the injury. It has been remarked
that according to the claimant, the
offending truck was moving from east to
west, whereas the claimant was entering
the main road from the north turning to the
west. This would show that both the
claimant's scooter and the offending truck
were moving in the same direction.
Therefore, it is incorrect to say that the
offending truck moved to the wrong side
and hit the scooter. The offending truck
too was moving on the same side of the
road as the scooter, according to rule of
the road. The Tribunal has remarked that
if the offending truck was moving west to
east and hit the scooter moving east to
west, on the left hand side of the road,
going by the claimant's orientation, that
would have been a case of the truck hitting
the scooter on the wrong side. We do not
agree.

16. While it is true that a person
entering a main road from a side lane or
alley, ought to take care about the moving
traffic on the main road, it is the duty of a
bigger vehicle to bear caution about the
smaller vehicle, like cars, two wheelers,
bicycles or even pedestrians, moving on the
same side of the road, that they do not get
hit from the rear or by a lateral contact with
the middle section or the back end of a
wide bodied vehicle. Here, this precisely
appears to be the case. In the examinationin-chief of PW-1, Km. Radha, it has been
stated:

"4. मेरे जपतािी अपने बाएं हाथ पर सड़क पर
स्कूटर ला चुके थे। घटनास्थल पर सड़क काफी चौड़ी है और सड़क
पर जकसी प्रकार के गड्ढे आजद नहीं है।

5. ट्रक चालक द्वारा यजद जनयजमत गजत से वाहन
चलाया िा रहा होता तो दुघटना नहीं होती. ट्रक चालक के द्वारा मेरे
जपता के स्कूटर को गलत side में आकर पास जकया था. टक्कर
मारकर ट्रक आगरा की ओर भाग गया. घायल जपता को उठाकर हम
अस्पताल ले गए. वहां उनको भती कर जलया गया तथा उपचार
जकया गया. उपचार के दौरान मेरे जपतािी की अंगुली को डॉक्टरों
द्वारा काट जदया गया. घर पर मेरे जपतािी का 3-6 माह इलाि
चलता रहा।"

17. In the cross-examination, no
question has been put to the witness
regarding the manner of the impact
described by her. This Court is, therefore,
of opinion, as already held, that the
Tribunal went astray in holding that the
offending truck did not move to the wrong
side of the road while hitting the motor
scooter.
The
Tribunal
has
much
emphasized the fact that the claimant has
said in his testimony that he was admitted
to the hospital for two days, whereas the
discharge slip, paper No. 24-Ga/3 from the
District Hospital, Etawah shows that he
was
discharged
the
same
day
i.e.
636 INDIAN LAW REPORTS ALLAHABAD SERIES
27.11.1994 by writing the word 'relieved' in
the relevant column. The Tribunal has gone
on a tangent reckoning the hours left in the
day on 27.11.1994 to conclude that the date
of admission and discharge, both being
27.11.1994, could never account for two
days. The Tribunal has also taken note of
the document under reference to opine that
the endorsement on the reverse of it
indicates the dates from 30.11.1994 to
17.12.1994, when different medicines were
prescribed. It has been remarked that
mention on this document about relieving
the patient on 27.11.1994, would not lead
to the inference that the consistent
prescription of medicines on different dates
show a longer duration of internment in the
Hospital for the claimant.

18. This Court again is not in agreement
with the Tribunal on this part of the finding.
It may be true that the discharge slip may not
prove the two days of indoor treatment for
the claimant, but that is not decisive of the
claim that he makes. The claimant says that
in the accident, he lost one of his fingers that
was amputated. The Tribunal has clearly
ignored from consideration documentary
evidence that shows the claimant's case to be
well-founded.
It
has
ignored
from
consideration
an
injury
report
dated
27.11.1994 issued by Dr. Pulakraj, Medical
Officer, District Hospital, Etawah. It is
countersigned by the Medical Officer. The
injuries, mentioned in this report bearing
paper No. 24-Ga/2, read:

"Injuries - (1) Crushed Injury L
little finger which is about completely
separated from L hand.

Opinion -

Injury is caused by hard and blunt
object. Nature - Grievous.

Duration - fresh."

19. Also not considered is another
document dated 27.11.1994 issued by the
District Hospital, Etawah. The document is a
bed head ticket, which does show that the
claimant was admitted to the District Hospital
on 27.11.1994 at 8.04 p.m. It is true that the
bed head ticket also shows that he was
relieved on 27.11.1994. But, that is of no
consequence, as already said. What is
relevant is that in the column of disease, it is
mentioned 'Crushed injury L little finger'. In
the column of 'B/B', the name of Km. Radha
Singh daughter of Kalyan Singh is written.
The next column mentions the injury as
'accidental injury L little finger due to
collision of Metador and scooter at about
7.15 p.m. today.' There is also a note, which
says 'injury noted in accidental register'.
There is a further note which says, 'police
informed'. This document bears paper No.24Ga/6, that has been completely ignored from
consideration by the Tribunal while writing
its finding on Issue No.1.

20. There is yet another document not
at all taken into consideration by the Tribunal
and
that
is
the
disability
certificate
18.07.1995. It has been issued by a Board of
Doctors in the office of the Chief Medical
Officer, Etawah. It mentions the injury as
10% and indicates it to be amputation of the
little finger. The aforesaid certificate bears
paper No.24-Ga/4. This disability certificate
also bears the claimant's photograph attested
by the Doctor. The disability certificate is
signed by three doctors comprising the
Board. With so much of overwhelming
evidence on record, the finding returned by
the Tribunal says: "इसके अलावा याची द्वारा जकसी भी
इन्िरी ररपोटट की प्रजत भी दाजिल नहीं की गई है जक जिससे तहरीरी
ररपोटट का जसद्ध होना तथा याची को आयी चोट का उि दुघटना से
संबंजित होना जसद्ध नहीं होता है।"
7 All. Kalyan Singh Vs. The New India Insurance Co. Ltd. & Anr.
637

21. The aforesaid finding and
conclusion of the Tribunal cannot be
accepted. Rather, the bed head ticket
clearly indicates that the injured was
brought to the hospital by his daughter,
Km. Radha Singh, PW-1, which lends
inherent credibility to the claim when seen
in conjunction with the injury. This Court
is constrained to say that with the claimant
suffering an amputated digit of the hand,
the approach of the Tribunal is most
insensitive.

22. In our opinion, by the medical
evidence alone and the clear testimony of
PW-1 and PW-2, the factum of accident
involving the offending truck and the
resultant
injury
are
overwhelmingly
proven. The remarks of the Tribunal about
the delay in lodging the FIR or nonregistration of the criminal case are of
trivial consequence, if none.

23. The Tribunal has then gone on to
remark that a report of the incident is said
to have been sent to the SSP, Etawah on
12.01.1995, but a copy of the said
information has not been brought on
record. A copy of the information that had
been brought on record is one dated
12.01.1995, but that has not been proved. It
has been held that the written information
bearing paper No. 24-Ga/5 is not proved,
and, therefore, not admissible in evidence.
The said finding of the Tribunal is again
utterly wrong. What is on record is a copy
of the information sent to the SSP dated
11.01.1995 and also on record are copies of
the registered postal receipts and AD Card.
The information bears paper No. 24-Ga/5
and the registered postal receipts and AD
Card bears paper No. 24-Ga/8. Regarding
these documents, PW-2, Kalyan Singh, the
claimant has stated in his examination-inchief thus:

"घटना की ररपोटट पुजलस ने नहीं जलिी मैने SP को
डाक द्वारा दरिास्त दी थी।"

24. The registered postal receipt is
evident to be one of the day following,
when the information to the SP was
written. It is to be noted that with so much
said about the document paper No. 25Ga/5, no question was put to contradict the
witness in the cross-examination. To a
proceeding before the Tribunal, where
provisions of the Evidence Act do not
apply, we are of opinion that the document
has been sufficiently proved. The duties of
the Tribunal in judging a motor accident
claim
are
more
inquisitorial
than
adversarial. Here, the Tribunal has gone
after the claimant's evidence as if it were
judging a prosecution case in a criminal
trial. There is then a facet of the finding on
this issue by the Tribunal, where the
testimony of PW-1 has been criticized to say
that the witness has not disclosed in his
evidence the names of persons, who had
witnessed the accident. It has done a
hairsplitting comparison of the testimony of
the claimant, comparing what was said in the
examination-in-chief and that in the crossexamination about the events that followed
the accident. It has been remarked that
whereas in the examination-in-chief, he has
stated that after the accident, people carried
him to the District Hospital, Etawah, at the
tail end of his cross-examination, he has said
that Ramveer, Manohar and his daughter
carried him to the hospital. The Tribunal has
not rest content with this much of criticism of
the claimant's testimony. The learned Judge
has gone on to say that PW-2 is PW-1's
daughter (when in fact, PW-1 is PW-2's
daughter) and, therefore, an interested
witness.

25. It has been remarked further that
if she was present on the spot, the claimant
638 INDIAN LAW REPORTS ALLAHABAD SERIES
would have certainly mentioned the fact in
his claim petition as well as his testimony.
It is also said by the Tribunal that PW-2
could mention the name of witnesses in his
testimony, but has merely said that some
people took him to the hospital. It has been
deduced from this part of PW-2's testimony
that if his daughter was present, he would
not have employed the words 'some
people'. This kind of an appraisal of
testimony by the Tribunal in a claim
petition is completely incompatible with
the jurisdiction that the Tribunal exercises.

26. To emphasize again, the bed head
ticket from the District Hospital shows that
it was PW-1, Km. Radha Singh, who had
brought PW-2, the claimant Kalyan Singh
to the hospital. Her names figures in the
column 'brought by'. The bed head ticket is
an official document from the District
Hospital and cannot be trifled. This witness
if not present, would not have been the one
to carry her father to the hospital. At least
the mention of her name on the bed head
ticket lends a strong buttress to the
claimant's case that PW-1 was present at
the scene of accident and witnessed it.
Read together with the medical evidence,
all of which has been omitted from
consideration, the inescapable conclusion is
that the Tribunal has gone completely
wrong in finding against the claimant on
Issue No.1.

27. Before concluding on the issue, I
am much supported in my view by the
opinion of my esteemed brother Jaspreet
Singh in Raj Kumar Hans and others v.
Saroj and others, FAFO No.737 of 2013,
decided on 14.07.2021, where in very
similar circumstances His Lordship taking
note of the decisions of the Supreme Court
in Sunita and others v. Rajasthan State
Road Transport Corporation and others,
(2020) 13 SCC 486; Mangla Ram v.
Oriental Insurance Company Limited
and others, (2018) 5 SCC 656; and Anita
Sharma and others v. New India
Assurance
Company
Limited
and
another, (2021) 1 SCC 171, has held:

"Considering
the
material
available on record, this Court finds that
the Tribunal has erred in its approach in
evaluating the evidence available on
record. It has been a clear case of the
claimant that the claimant sustained injuries
on account of the accident which occurred
on 26.10.2011. He was admitted in the
hospital and only after he was discharged
that he had lodged the First Information
Report. The claimant has also brought on
record the copy of the First Information
Report. He has also brought on record the
documents relating to the offending driver
being charge-sheeted and being prosecuted
in the same accident. A number of
documents, relating his initial treatment at
Navjeewan Hospital at Lakhimpur Kheri
and the documents relating to his treatment
at K.G.M.U. has been brought on record,
however, none of the aforesaid documents
have been considered by the Tribunal in its
order. The claimant has also filed a
disability certificate indicating that he had
suffered 45% disability certificate which
has also not been noticed by the Tribunal
rather there is no mention, consideration of
the said documents in the judgment and
why they have been discarded.

As noticed by the Apex Court in
the cases relating to motor accidents it is
the claimant who has to prove the case on
the basis of pre-ponderence of probability.
The foundational facts regarding the
accident,
the
treatment,
the
First
Information Report as well as the charge
sheet which had been brought on record
7 All. Branch Manager, United India Insurance Co., Ltd., Alld. Vs. Sri Nagendra Tiwari & Anr. 639
have not been considered in the correct
perspective by the Tribunal. Once the
aforesaid foundational facts have been
connected
with
the
evidence
and
considering the fact that neither the owner
nor the driver led any evidence to
contradict the statement of the claimant and
his witnesses and nothing adverse having
been elicited in their testimony, thus, the
Tribunal has erred in appreciating the
evidence on record. It ignored material
evidence and has recorded findings which
are based on surmises and against the
weight of the material on record."

28. The finding of the Tribunal on
Issue No.1 is, accordingly, set aside and the
issue is answered in favour of the claimant;
against the owner and the Insurers.

29. The findings on Issues Nos.2 and
3 have been recorded in favour of the
claimant by the Tribunal. Those findings
are affirmed.

30. Since Issue No.4 has not at all
been decided by the Tribunal, I am of
opinion that this matter ought to go back to
the Tribunal for the purpose of the said
issue being decided afresh on merits, after
hearing parties.

31. Accordingly, this appeal succeeds
and is allowed in part. The impugned
judgment and award dated 29.11.1997
passed by the Motor Accident Claims
Tribunal/ 8th Additional District Judge,
Etawah is set aside with a remit of the
matter to the Tribunal, that would now hold
jurisdiction in the matter. The Presiding
Officer of the Motor Accident Claims
Tribunal will hear the parties afresh with
full opportunity to lead evidence limited to
Issue No.4 alone. The findings on Issues
Nos.1, 2 and 3 shall not be re-opened and
abide by this judgment. The Tribunal shall
pass an award in accordance with its
finding on Issue No.4, after hearing parties,
within a period of three months from the
date of receipt of a copy of this order,
bearing in mind the directions in this
judgment and in accordance with law.
Costs easy.
----------
(2023) 7 ILRA 639
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2023

BEFORE

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

First Appeal From Order No. 350 of 2006

Branch Manager, United India Insurance
Co., Ltd., Alld. ...Appellant
Versus
Sri Nagendra Tiwari & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Saurabh Srivastava

Counsel for the Respondents:
C.S.C., Ms. S.R. Gupta

A. Civil Law - Workmen's Compensation
Act, 1923-Section 30- Commissioner has
awarded compensation of 2,87,209/ with
interest-Challenge against- the certificate
shows that the disability is only 17% and
there is amputation of three flanges of the
upper
limb
but
the
Tribunal
has
considered the injury to be causing 100%
disability, which could not have been
done.-disability due to the accidental fall
is proved beyond reasonable doubt and
under the provisions of Section 4(1)(C) of
the Workmen's Compensation Act, 1923 -
As far as present appeal is concerned, the
so called substantial questions of law
framed are the questions of facts and the
findings of the Commissioner on the said