# Kumari Jyoti & Ors v. Devendra Singh Yadav & Ors

- **Citation:** (2023) 11 ILRA 432
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-16
- **Case number:** First Appeal from Order No. 3125 of 2003
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumari-jyoti-ors-v-devendra-singh-yadav-ors-49353
- **Pages:** 17

## Headnote

(A) Tort Law - The Motor Vehicles Act,
1988 - Sections 163A , 166 & 173 -
Claimants' appeal , The Indian Penal Code,
1860 - Section 304A - Causing death by
negligence , The Guardian and Wards Act,
1890 - Section 7 ,The Insurance Act, 1938
- Section 64VB - requirements for insurers
to maintain a solvency margin, which
serves as a measure of an insurer's
financial stability - In motor accident
claim cases - once the foundational fact,
namely, the actual occurrence of the
accident, has been established, then the
Tribunal's role would be to calculate the
quantum of just compensation if the
accident had taken place by reason of
negligence of the driver of a motor vehicle
- while doing so, the Tribunal would not
be strictly bound by the pleadings of the
parties - Claimants are not required to
prove the case as it is required to be done
in a criminal trial. (Para -33)

(B) The Indian Evidence Act, 1872 -
Section 58 - Facts admitted need not be
proved - admission in pleadings is good
proof of a fact in issue, let alone a relevant
fact - Admission in pleadings stands on a
much higher foot than admission in
evidence - factum of the accident - In the
absence of a finding of collusion between the
owner and the claimants, the plenary admission
by the owner in his written statement, that the
accident did happen between the offending
truck and the ill-fated car at the date, time and
place alleged by the claimants is good proof of
the fact.
 (Para - 34, 36, 37)

(C) The Motor Vehicles Act, 1988 -
Sections
168
&
169
-
Tribunal's
Jurisdiction in Accidents - Claims Tribunal
has to be less adversarial and more
inquisitorial - not always to act as a Court
of civil jurisdiction trying an
action
according to the provisions of the Code of
Civil Procedure, 1908 - to hold an inquiry
into the accident and determine just
compensation payable to the injured, or
11 All. Kumari Jyoti & Ors. Vs. Devendra Singh Yadav & Ors.
433
the legal representatives of the deceased,
as the case may be.(Para - 41, 42)

(D) The Uttar Pradesh Motor Vehicle
Rules, 1998 - Rule 215 - Power of
examination - Claims Tribunal may if it
thinks necessary, examine any person
likely to be able to give information
relating to the injury irrespective of the
fact whether such person has been or is to
be called as a witness or not.(Para - 45)

Accident between offending truck and ill-fated
car - truck approached and hit the car head-on
- Three persons reported seriously injured -
averment in claim petition - drivers of both
vehicles were not individually vigilant - written
statement by owner - denied allegations -
Tribunal erred by attempting to pick holes in
evidence - claim that Tribunal should not
decide a motor accident claim as a criminal trial
- to prove factum of accident - tribunal adopted
hyper technical approach - two witnesses
produced by claimants not eye-witnesses of
occurrence - two other passengers on board
the ill-fated car - names mentioned by P.W.2 in
witness box - not produced on behalf of
claimants
-

Seven
appellants
(legal
representatives) filed claim petition - rejected -
hence appeal. (Para - 1, 2, 3, 16, 39)

HELD:-Tribunal's findings on Issues 1, 2, and 3
cannot be sustained. Not to disturb findings of
Tribunal on Issue Nos. 4 and 5 that has been
inquired into by Tribunal, holding both vehicles
to be validly insured on the date of accident.
Finding on Issue 6 is bad due to vitiated
findings. Finding on Issue No. 7 is perverse as it
does not attribute any income to deceased.
Deceased's oral testimony and partnership deed
show that he supported three children, parents,
and a brother. Award set aside award and Claim
remitted to competent Tribunal for de novo
inquiry/trial. Tribunal will examine the claim,
considering all evidence necessary to determine
claimants' entitlement to compensation within
six months of receiving certified copy of
judgment. (Para - 47, 48, 49, 50)

Appeal partly allowed. (E-7)

LIST OF CASES CITED:-

## Text

_Characters 0–39,748 of 59,660. This is a partial read: ask again with offset=39748 for what follows._

432 INDIAN LAW REPORTS ALLAHABAD SERIES

85. It is often said that the Judges and
the Advocates are wheels of a chariot. For
enhancing the speed of this chariot, the
other wheels of the chariot, i.e. the learned
Advocates, should also change gears and
assist the Courts more efficiently in order
to enhance the speed of dispensation of
justice in the Courts.

86. I take this opportunity to request to all
the learned Counsel to cooperate in speedy
dispensation of justice by decreasing the nonproductive expenditure of the Court's time. The
learned Counsel should decrease the number of
adjournments sought and they should not object
to the submissions being heard in their absence,
more so when there is a learned Counsel
present to take notes of the submissions. The
precious time of the Court can also be better
utilized if the learned Counsel refrain from
citing multiple case-laws on a single point. The
same old practices will continue to produce the
same old results but as the society needs faster
disposal of matters, all of us should change our
practices to produce better results.
----------
(2023) 11 ILRA 432
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.10.2023

BEFORE

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

First Appeal from Order No. 3125 of 2003

Kumari Jyoti & Ors. ...Appellants
Versus
Devendra Singh Yadav & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Satya Dheer Singh Jadaun, Sri Naushad
Siddiqui

Counsel for the Respondents:
Sri S.K. Pandey, Sri B.C. Naik, Sri Brijesh
Chandra Naik, Sri Nagendra Kumar Srivastava,
Sri S.N.S Yadav

(A) Tort Law - The Motor Vehicles Act,
1988 - Sections 163A , 166 & 173 -
Claimants' appeal , The Indian Penal Code,
1860 - Section 304A - Causing death by
negligence , The Guardian and Wards Act,
1890 - Section 7 ,The Insurance Act, 1938
- Section 64VB - requirements for insurers
to maintain a solvency margin, which
serves as a measure of an insurer's
financial stability - In motor accident
claim cases - once the foundational fact,
namely, the actual occurrence of the
accident, has been established, then the
Tribunal's role would be to calculate the
quantum of just compensation if the
accident had taken place by reason of
negligence of the driver of a motor vehicle
- while doing so, the Tribunal would not
be strictly bound by the pleadings of the
parties - Claimants are not required to
prove the case as it is required to be done
in a criminal trial. (Para -33)

(B) The Indian Evidence Act, 1872 -
Section 58 - Facts admitted need not be
proved - admission in pleadings is good
proof of a fact in issue, let alone a relevant
fact - Admission in pleadings stands on a
much higher foot than admission in
evidence - factum of the accident - In the
absence of a finding of collusion between the
owner and the claimants, the plenary admission
by the owner in his written statement, that the
accident did happen between the offending
truck and the ill-fated car at the date, time and
place alleged by the claimants is good proof of
the fact.
 (Para - 34, 36, 37)

(C) The Motor Vehicles Act, 1988 -
Sections
168
&
169
-
Tribunal's
Jurisdiction in Accidents - Claims Tribunal
has to be less adversarial and more
inquisitorial - not always to act as a Court
of civil jurisdiction trying an
action
according to the provisions of the Code of
Civil Procedure, 1908 - to hold an inquiry
into the accident and determine just
compensation payable to the injured, or
11 All. Kumari Jyoti & Ors. Vs. Devendra Singh Yadav & Ors.
433
the legal representatives of the deceased,
as the case may be.(Para - 41, 42)

(D) The Uttar Pradesh Motor Vehicle
Rules, 1998 - Rule 215 - Power of
examination - Claims Tribunal may if it
thinks necessary, examine any person
likely to be able to give information
relating to the injury irrespective of the
fact whether such person has been or is to
be called as a witness or not.(Para - 45)

Accident between offending truck and ill-fated
car - truck approached and hit the car head-on
- Three persons reported seriously injured -
averment in claim petition - drivers of both
vehicles were not individually vigilant - written
statement by owner - denied allegations -
Tribunal erred by attempting to pick holes in
evidence - claim that Tribunal should not
decide a motor accident claim as a criminal trial
- to prove factum of accident - tribunal adopted
hyper technical approach - two witnesses
produced by claimants not eye-witnesses of
occurrence - two other passengers on board
the ill-fated car - names mentioned by P.W.2 in
witness box - not produced on behalf of
claimants
-

Seven
appellants
(legal
representatives) filed claim petition - rejected -
hence appeal. (Para - 1, 2, 3, 16, 39)

HELD:-Tribunal's findings on Issues 1, 2, and 3
cannot be sustained. Not to disturb findings of
Tribunal on Issue Nos. 4 and 5 that has been
inquired into by Tribunal, holding both vehicles
to be validly insured on the date of accident.
Finding on Issue 6 is bad due to vitiated
findings. Finding on Issue No. 7 is perverse as it
does not attribute any income to deceased.
Deceased's oral testimony and partnership deed
show that he supported three children, parents,
and a brother. Award set aside award and Claim
remitted to competent Tribunal for de novo
inquiry/trial. Tribunal will examine the claim,
considering all evidence necessary to determine
claimants' entitlement to compensation within
six months of receiving certified copy of
judgment. (Para - 47, 48, 49, 50)

Appeal partly allowed. (E-7)

LIST OF CASES CITED:-

1. Rajwati @ Rajjo & ors. Vs U.I.I. Co. Ltd. &
ors., 2022 SCC Online SC 1699

2. Nagindas Ramdas Vs Dalpatram Ichharam @
Brijram & ors., (1974) 1 SCC 242

3. Sri. S.K. Singh Vs Sri. P.A. Nair & ors. , 2019
(4) TAC 920: 2018 SCC Online Cal 5308

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

This is a claimants' appeal, arising out
of the judgment and award passed by Mr.
Naresh Singh, the then Motor Accident
Claims Tribunal/Special Judge (Dacoity
Affected Areas) Etawah dated 31.07.2003,
rejecting the claim petition.

2. The seven appellants here are the
legal representatives of the late Dinesh
Kumar Tripathi, who died in a motor
accident. A detailed reference to each of the
seven appellants before this Court shall be
made a little later in this judgment,
disclosing their relationship to the deceased
and other matters.

3. The facts giving rise to Motor
Accident Claims Petition No. 127 of 1997
are that on the 29th of May, 1996, at about
half past nine in the evening hours, Dinesh
Kumar Tripathi was riding Maruti Car
bearing registration No. UP 78L/9280,
belonging to a friend of his. The car was
proceeding from Kanpur to Agra. As the
car reached Village Kanaita within the local
limits of Police Station Matsena, District
Firozabad, a truck bearing registration No.
UP 83/9831 approached from the opposite
direction and hit the Maruti Car head-on.
As a result of the impact, Dinesh Kumar
Tripathi died, whereas all other occupants
in the car were badly injured.

4. A First Information Report was
lodged with the Police, giving rise to Crime
434 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 88 of 1996, Police Station Matsena,
District Firozabad. Later on, Section 304A
of the Indian Penal Code, 1860 was added.
According to the claimants, the First
Information Report was lodged against the
driver of truck bearing registration No. UP
83/9831. It is the further case of the
claimant-appellants that at the time of the
accident, the driver of the Maruti Car was
proceeding from Kanpur to Agra at a
controlled speed, whereas the offending
truck approached from the Agra end of the
road at a high speed, driven negligently.
The driver of the offending truck did not
bear in mind the other vehicles moving on
the road and hit the ill-fated car, moving to
the wrong side of the road. The injured in
the accident were rushed to the District
Hospital, Firozabad by members of the
public who had gathered at the site of
accident. The driver of the offending truck,
abandoned his vehicle at the site of the
accident and fled away.

5. The claimant-appellants say that at
the time of the accident, Dinesh Kumar
Tripathi was a healthy man. He was
gainfully employed at Kanpur in the
business of property dealing and transport.
He provided for all members of the family
out of the profits of his business and all of
them were dependent upon him. His death
in the accident has destituted the family,
leaving them no means of sustenance.
Dinesh
Kumar
Tripathi's
wife
had
predeceased him, leaving behind three
minor children. With the passing away of
Tripathi, the minors have been utterly
orphaned. They were provided for by the
deceased, who would look after them.
There is, according to the claimants, no
means of sustenance for the minors in
future. The claimant-appellants also say
that Tripathi's brothers, his father and
mother were all dependent upon him. The
deceased would provide for all the
claimant-appellants.
His
demise
has
plunged the family into a financial crisis.
Their future has turned bleak. Tripathi's
death has caused the claimants to suffer
physically, mentally and economically, a
loss that is irreparable.

6. It is averred in the claim petition
that the drivers of both the vehicles were
not individually vigilant. The driver of the
offending
truck
was
driving
at
an
uncontrolled speed, whose negligence
caused the unfortunate accident. The
claimants demanded a total compensation
of ₹20,60,000/- under Section 166 of the
Motor Vehicles Act, 19881 and a sum of
₹4,62,833.34 under Section 163A, claiming
that the sum of compensation be ordered to
be paid with interest at the rate of 18% per
annum from the date of institution of the
claim until realisation.

7. Devendra Singh Yadav, opposite
party No. 1 to the claim petition and
respondent No. 1 to this appeal, is the
owner of the offending truck. He shall
hereinafter be called 'the owner'. The New
India Assurance Company Limited, Station
Road, Etawah through the Branch Manager
are the insurers of the offending truck.
They shall hereinafter be called 'the
insurers'. The insurers are impleaded as
opposite party No. 2 to the claim petition
and respondent No. 2 to the appeal.

8. Ashok Bhatia, son of Kishan Lal
Bhatia, is the owner of the ill-fated Maruti
Car. He has been impleaded as opposite
party No. 3 to the claim petition and
respondent No. 3 to this appeal. He shall
hereinafter be called 'the car owner'. The
United India Insurance Company Limited,
Branch Office, Devi Road, Mainpuri
through its Branch Manager are the
11 All. Kumari Jyoti & Ors. Vs. Devendra Singh Yadav & Ors.
435
insurers of the ill-fated car. They shall
hereinafter be referred to as 'the Insurance
Company'.

9. The seven claimant-appellants to
this appeal shall be hereinafter called 'the
claimants', unless the context necessitates
an individual or different reference.

10. A written statement was filed on
behalf of the owner bearing Paper No. 25ख.
The owner generally denied allegations in
the claim petition, except that he was the
owner of the offending truck and that the
offending vehicle was insured with the
insurers. In the additional pleas, it was
averred that the driver of the offending
truck was operating it at a slow speed, in
accordance with the traffic rules. The
accident happened entirely on account of
the negligence of the ill-fated car's driver,
who was operating the vehicle at a high
speed and negligently. The truck was
plying with all valid documents, permitting
it to move on the road. The truck driver was
driving it at a controlled speed. It is averred
that there are no particulars pleaded, giving
out the deceased's income, age and
business. It was also pleaded that no
documentary evidence has been produced
in support of the claimants' case.
According to the owner, they were not
liable to compensate the claimants, and,
if at all, the offending vehicle be found
involved and the owner liable, it is the
insurers who would have to bear the
burden, inasmuch the offending truck
was insured under a policy bearing
number 313200205244 from 07.04.1996
to
06.04.1997-98.
It
was
a
comprehensive cover.

11. A separate written statement was
filed on behalf of the insurers, bearing
Paper No. 14ख. The insurers took an
objection that the claim petition under
Sections 163A and 166 of the Act of 1988
was not maintainable together. It is the
insurers' further case that the deceased was
said to be aged 28 years and his income
₹4,000/- per mensem. According to the
insurers, these facts are incorrect and
concocted in order to bolster the claim. The
deceased did not do business of property
dealing or transport, nor did he have a
monthly income of ₹4,000/-, as alleged. It
was also said that burden to prove the
deceased's income lay upon the claimants.
It was also pleaded that if the claimants did
not succeed in establishing the deceased's
age, as alleged, they would not be entitled
to compensation. It was pleaded in the
alternative that if the petitioner produced
evidence, oral or documentary in support of
the deceased's income, the insurers reserve
their right to file an additional written
statement and produce evidence in rebuttal.
The insurers came up with a plea that the
claimants were not the legal representatives
of the deceased. Therefore, they had no
right to institute the present claim. The
burden to prove that the claimants were,
indeed, the deceased's legal representatives
lay upon them. According to the insurers,
on 29.05.1996, at half past nine at the
Etawah-Agra Road, between Kaneta and
Goda, no accident took place nor the one
subject matter of the claim. It is also
averred that on 29.05.1996, the deceased
was not moving in his friend's Maruti Car
from Kanpur to Agra, nor did the offending
truck hit the car. The accident subject
matter
of
the
claim
petition
never
happened. Therefore, the insurers have no
liability in the matter. In the alternative, it
is pleaded that on the date of the accident,
the driver of the ill-fated car was driving it
callously and negligently. The accident
happened because of negligence of the ill-
436 INDIAN LAW REPORTS ALLAHABAD SERIES
fated car's driver, not the offending truck's
driver. The insurers would, therefore, not
be liable. The insurers further on said that if
in the judgment of the Tribunal, the
accident
happened
because
of
the
negligence of both the drivers, liability to
make good compensation would not
entirely be that of the insurers. Instead, the
accident being caused by contributory
negligence of both drivers, the insurers and
the Insurance Company would both be
liable.

12. It is next pleaded by the insurers
that the claimants as well as the car owner
would have to prove that the drivers of both
vehicles held valid and legal driving
licenses, and that both were not inebriated.
If the aforesaid facts are not established by
the claimants, the owner and the insurers
would not be liable. The existence of a
route permit with the offending truck was
also denied and, on that basis, the insurers'
liability. It was also pleaded that in
paragraph No. 17 of the claim petition, the
cover note number and its validity is
mentioned along with the registration
number of the offending truck, but no
particulars of the policy have been given.
In view of these state of pleadings, the
insurers deny their liability. If the owner
later on file the policy, the same would be
got verified, and, which, if verified, the
insurers would accept their liability. The
insurers also pleaded that in the event
collusion was discovered between the
owner and the claimants, the insurers are
entitled to protection under Section 170 of
the Act of 1988.

13. A plea was also raised that if the
premium on the date of the accident was
not found deposited by the owner, it would
be regarded as a violation of Section 64VB
of the Insurance Act, 19382 and the
insurers not liable to indemnify. It is also
the insurers' case that there has been no
notice or information to the insurers about
the accident, which is required by the
conditions of the policy. Therefore, it is a
violation of the policy, discharging the
insurers of their obligation. There is also a
plea to the effect that it is asserted that
apart from the deceased Tripathi, there are
others said to be injured. But, in the claim
petition, the names of those persons have
not been disclosed. It is, therefore, to be
regarded that no one else sustained injuries.
If any evidence regarding the injuries
sustained by others is produced, it ought to
be regarded as got up and based on
afterthought. It is then asserted that the
claim being one both under Sections 163
and
166
of
the Act
of
1988,
is
misconceived.

14. A separate written statement was
filed on behalf of the car owner, Paper No.
11ख. After a general denial of the facts
asserted in paragraph Nos. 1 to 23 of the
claim petition, in the additional pleas, it is
asserted that the ill-fated car was plying
with all valid documents. It was not being
driven negligently, but, that the offending
truck was driven at a high speed and
callously, resulting in the accident. The
compensation claimed is excessive, both on
facts and law. It is pleaded in paragraph No.
29 that the driver of the ill-fated car died in
the
accident.
The
liability
to
pay
compensation lies with the owner and the
insurers. The claimants are not entitled to
compensation.

15. A written statement, Paper No.
24ख was filed on behalf of the Insurance
Company. Paragraph Nos. 1 to 23 of the
claim petition are generally denied in a
solitary paragraph, and in the additional
pleas, it is averred that instituting a claim
11 All. Kumari Jyoti & Ors. Vs. Devendra Singh Yadav & Ors.
437
both under Sections 163A and 166 of the
Act of 1988, it is against the law. The
compensation claimed is exaggerated. The
owner has not given any information
regarding the accident to the Insurance
Company.

16. A perusal of the claim petition
would show that there was no negligence
by the driver of the ill-fated car, and,
therefore, the Insurance Company is not
liable. The averments in the claim petition
show that the accident happened due to the
truck driver's negligence, and, therefore, if,
in the Court's opinion, the claimants are
entitled to compensation, the liability
would lie with the owner and the insurers;
not the Insurance Company. When the
accident happened, the driver of the illfated car did not hold a valid driving
license. The claimants and the owner have
to establish that at the time of the accident,
the driver of the ill-fated car was not
inebriated, and that he knew how to drive a
Maruti Car. In the event the claimants and
the owner are not able to prove the
aforesaid facts, the Insurance Company
would not be liable to compensate. The
claim petition is bad for non-joinder,
inasmuch as the driver of the ill-fated car
has not been pleaded as a party. The car
owner and the claimants are obliged to
prove that on the date and time of the
accident, the ill-fated car was validly
registered, and plying on a valid permit and
fitness certificate. If the aforesaid facts are
not established by the owner and the
claimants, the Insurance Company would
not be liable. The facts disclosed in the
petition would show that the ill-fated car
was
plying
for
hire
and
carrying
passengers. It had, on board, passengers in
excess of the prescribed seating capacity.
For all these reasons, a violation of the
terms of the policy is alleged. Tripathi's age
at the time of his death was not 28 years,
nor did he do any kind of business. He did
not support the claimants in any manner
and his death has not led to any financial
difficulties for the claimants. The claimants
have disclosed their ages far less than their
years, and a case set up to claim excessive
compensation.
The
claimants
have
demanded exaggerated sums of money
under
different
heads
towards
compensation, to which they are not
entitled. The ill-fated car was not insured
with the Insurance Company. Therefore, if
the owner of the ill-fated car and the
claimants
establish
these
facts,
the
Insurance Company is entitled to the
protection of Section 64VB of the Act of
1938.

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

(i) Whether on 29.05.1996 at about
09:30 p.m. at Mughal Road, on the EtawahAgra Highway, between Kanata and Goda,
truck No. UP 83/9831 operated by its driver
at a high speed and negligently, caused the
accident, in consequence whereof, Dinesh
Kumar Tripathi sustained injuries, to which
he succumbed?

(ii) Whether on the aforesaid date,
time and place on account of the driver of
Maruti Car No. UP 78/L 9280, driving it at
a high speed and negligently, the accident
happened, leading Dinesh Kumar Tripathi
to sustain injuries, resulting in his death?

(iii) Whether on the aforesaid date,
time and place, the accident involving truck
No. UP 83/9831 and Car No. UP 78/L9280
happened due to contributory negligence of
the drivers?

(iv) Whether on the date and time of
the accident truck No. UP 83/9381 was
438 INDIAN LAW REPORTS ALLAHABAD SERIES
insured with opposite party No. 2, the New
India Assurance Company Limited ?

(v) Whether on the date and time of
the accident Maruti Car No. UP 78/L 9280
was insured with opposite party No. 4, the
United Insurance Company Limited ?

(vi) Whether on the date and time of
the accident the drivers of Truck No. UP
83/L9831 and Maruti Car No. UP 78/L
9280 held valid driving licenses ?

(vii) Whether the claimants are
entitled to receive any compensation? If so,
how much and from which opposite party?

18. On behalf of the claimants, Jyoti
Tripathi was examined as P.W.1 and
Akhilesh Tripathi as P.W.2. In their
documentary
evidence,
the
claimants
produced, through a list bearing Paper No.
67ग a certified copy of the First Information
Report, a certified copy of the written
report, a certified copy of the site-plan, a
certified copy of the postmortem relating to
the deceased, a certified copy of the
panchayatnama, a certified copy of the
charge-sheet filed in the relevant crime, and
a certified copy of the technical inspection
report relating to the offending truck.

19. The claimants further produced,
through a list bearing Paper No. 49ग, a copy
of the order dated 05.10.1996 passed by the
Principal Judge, Family Court, Kanpur
Nagar in Case No. 78/70/96 under Section
7 of the Guardian and Wards Act, 1890,
appointing the claimant, Akhilesh Tripathi,
brother of the deceased, guardian of the
person and property of Kumari Jyoti
Tripathi, Aniruddh Tripathi and Saurabh
Tripathi; a photostat copy of the High
School certificate and mark-sheet issued by
the U.P. Board of High School and
Intermediate Education relating to the
deceased and showing his date of birth, a
photostat copy of the death certificate
relating to Sushma Tripathi, wife of the
deceased, a certified copy of the death
certificate
relating
to
the
claimant,
Roopnarayan
Tripathi,
father
of
the
deceased, showing his date of death to be
27.10.2001. A notarized copy of the
partnership deed between five partners,
including the owner Ashok Kumar Bhatia
and the deceased, Dinesh Kumar Tripathi,
apart from three other partners, constituting
themselves into a partnership firm under
the name and style of Messrs East-West
Carrying Corporation was filed, besides a
notarized copy of an agreement to sell
dated 17.12.1994 executed in favour of the
deceased, Dinesh Kumar Tripathi by Smt.
Devrati Rai, widow of Ram Prasad Rai,
covenating to sell Plot No. 85, Block K,
Scheme
I,
Kakadev,
Kanpur
Nagar,
admeasuring 356 square yards, a notarized
copy of a memo dated 07.05.1995, showing
receipt of earnest for the purchase of Plot
No. 745, Block W/2, Scheme No. - 2nd,
Juhi, Kanpur executed by Harpal Singh son
of Roopnarayan Tripathi in favour of
Dinesh Kumar Tripathi and a similar
memorandum of receipt of earnest for
another
property
dated
09.02.1996,
executed by its owner, and, a photostat
copy of Form No. 54 attested by the Project
Director,
District
Rural
Development
Agency, Kanpur relating to the accident, a
photostat copy of the certificate of
registration relating to the ill-fated car, and
a copy of the insurance certificate relating
to that car.

20. Along with still another list of
documents bearing Paper No. 54ग, a
certified copy of the judgment and award
passed by the Motor Accident Claims
Tribunal/District Judge, Kanpur Nagar
dated 21.08.2000 in M.A.C. Case No. 90 of
1997 was filed.
11 All. Kumari Jyoti & Ors. Vs. Devendra Singh Yadav & Ors.
439

21. The owner, the insurers, the car
owner and the Insurance Company have
not led any oral evidence. The owner has
filed, through a list of documents bearing
number 27ग, four documents - the first
being a notarized copy of the registration
certificate relating to the offending truck,
the second, a notarized copy of the
transport permit relating to the said truck,
the third, a notarized copy of the insurance
policy covering the truck, and the fourth, a
notarized photostat copy of the truck
driver's driving license. The insurers
produced their documentary evidence vide
list of documents bearing Paper No. 64ग.
They filed a copy of the insurance policy
and the driving license of the offending
truck's driver and a photostat copy of the
insurance policy.

22. The Tribunal has decided Issue
Nos. 1, 2 and 3 together, and it was held
that on the basis of the evidence on record,
it is not proved that the accident giving rise
to the crime ever happened. Thus, Issue
Nos. 1, 2 and 3 were answered against the
claimants. Issue Nos. 4 and 5 were
answered together in the manner that
both the offending truck and the illfated car were validly insured on the
date and time of the accident. Issue No.
6 was decided, holding that at the time
of the accident, neither the driver of the
truck nor that of the ill-fated car held a
valid driving license. Issue No. 7 was
decided by the Tribunal in the manner
that going by the contradictory evidence
on record, it was not possible to
determine the deceased's income.

23. In consequence of these findings,
the claim petition was dismissed by the
impugned judgment and award passed by
the Tribunal.

24. Aggrieved, this appeal has been
preferred by claimants.

25. Heard Mr. Naushad Siddiqui,
Advocate holding brief of Mr. S.D. Singh
Jadaun, learned Counsel for the claimants,
Mr. B.C. Naik, learned Counsel for the
insurers, Mr. Shiv Nath Singh, learned
Counsel for the car owner and Mr.
Nagendra
Kumar
Srivastava,
learned
Counsel appearing on behalf of the
Insurance Company. No one appears on
behalf of the owner.

26. It is argued by the learned
Counsel for the claimants that while
determining Issue Nos. 1, 2 and 3, the
Tribunal has approached evidence from a
manifestly wrong vantage. The learned
Judge has tried to pick holes in the
evidence
by
saying
that
two
other
passengers on board car, Sub-Inspector,
Gajendra Singh and Assistant Prosecuting
Officer, Vikram Singh were not called to
the witness box to prove the accident. The
First Information Report related to the
accident was lodged by one Faguni Ram.
The claimants did not produce Faguni Ram
to establish the factum of accident. The
First Information Report was lodged on the
next day following the accident, whereas a
panchayatnama was drawn up a day before,
under orders of the Superintendent of
Police. It is argued by the learned Counsel
for the claimants that the learned Trial
Judge has committed a manifest error of
law, ignoring the consistent authority of the
Supreme Court, which holds that the
Tribunal ought not to decide a Motor
Accident Claim as if it were a criminal
trial, and, the claimant, the prosecution.
The Act of 1988 is a social welfare
legislation and must receive a liberal
construction, consistent with its objects.
The Tribunal has placed burden upon the
440 INDIAN LAW REPORTS ALLAHABAD SERIES
claimants to prove the factum of accident
and
disbelieved
it,
adopting
a
hypertechnical approach. It is particularly
submitted that the Tribunal has ignored
from consideration the judgment and award
passed in Motor Accident Claim Petition
No. 90 of 1997, Vikram Singh v. Prem
Shankar
and
another,
decided
on
21.08.2000 by Motor Accident Claims
Tribunal, Kanpur Nagar. A certified copy of
this award was duly brought on record
before the Tribunal prior to the impugned
judgment, but the Tribunal, despite noticing
it as one of the documents, has not at all
considered it while returning findings on
Issue Nos. 1, 2 and 3.

27. The insurers, on the other hand,
who have contested the claimant's appeal
submitted through learned Counsel that the
factum of accident has to be established by
the claimants before the Tribunal by oral,
documentary and circumstantial evidence.
The claimants have relied upon the
judgment of the Tribunal at Kanpur Nagar
in Motor Accident Claims Petition No. 90
of 1997 instituted by an injured victim of
the same accident, where the factum of
accident was accepted by the Tribunal. It is
urged that the judgment of the other
Tribunal is not admissible in evidence to
prove the accident before the Tribunal, as
rightly
held.

28. This Court has keenly considered
the submissions of learned Counsel for the
appearing parties and perused the findings
of the Tribunal on Issue Nos. 1, 2 and 3.

29. The Tribunal, going by the
pleadings of parties, has remarked that
whereas the claimants say that the accident
happened on 29.05.1996 at 09:30 p.m.,
there being little dispute over the place of
accident, the owner, the insurers and the
Insurance
Company
in
their
written
statement have denied the factum of
accident.

30. In view of the aforesaid issue
between parties that the Tribunal has
noticed, it is concluded that burden lay
upon the claimants to establish the factum
of accident. The Tribunal has then gone on
to say that according to the claimants' case,
apart from the deceased, there were others
on board the ill-fated car, but the claimants
have not disclosed the name and address of
the other passengers. The claimants have
produced P.W.1 Jyoti Tripathi, who is not
an eye-witness of the accident and her
evidence is hearsay. The other witness,
P.W.2, Akhilesh Tripathi, too did not
witness the accident, and his testimony is,
therefore, hearsay as well. The Tribunal
has, therefore, discarded the testimony of
both the witnesses produced by the
claimants. It is remarked that P.W.2
Akhilesh
Tripathi
has
said
in
his
examination-in-chief that apart from the
deceased, S.I. Gajendra Singh and A.P.O.
Vikram Singh were also travelling on board
the ill-fated car. There is no reason why
Vikram Singh has not been examined as a
witness, according to the Tribunal. It is also
observed that the claimants have not given
any evidence to the effect that it was not
reasonably practicable to produce Gajendra
Singh and Vikram Singh in Court. The
persons last mentioned are eye-witnesses,
and the Tribunal has remarked that by
withholding
the
testimony
of
these
witnesses, the claimants have prevented
truth from unfolding before it. It has also
been remarked that there is no testimony on
behalf of the claimants to show as to who
was
driving
the
ill-fated
car.
The
documentary evidence that has been
produced shows that there is a certified
copy of the First Information Report
registered in relation to the accident. It was
11 All. Kumari Jyoti & Ors. Vs. Devendra Singh Yadav & Ors.
441
lodged by one Faguni Ram. The claimants
have not produced Faguni Ram either in the
witness box. The remark of the Tribunal is
that it is evident, therefore, that the
claimants have not produced any eyewitness of the accident.

31. Then, there are some very odd
observations by the Tribunal. The learned
Judge has observed that a certified copy of
the postmortem report relating to the
deceased's autopsy has been filed, which
shows that the autopsy was done on
30.05.1996 at 02:35 p.m. A copy of the
panchayatnama has been filed, which
shows that it was done on 29.05.1996 at
03:10 a.m., whereas the First Information
Report was lodged on 30.05.1996 at quarter
past midnight. It is observed that there is a
contradiction in the First Information
Report, when it was registered at the police
station and the inquest report. It is also
remarked that the panchayatnama carries an
order of the Superintendent of Police,
directing the Station House Officer, Police
Station Bhatsena to take necessary action.
The date mentioned below the signatures of
the Superintendent of Police is 01.06.1996,
which is a day after the panchayatnama
was actually drawn up. To top it all is a
remark by the Tribunal, that the claimants
have not at all clarified as to what were the
circumstances that the panchayatnama was
drawn up a day prior to the S.P's. order.

32. This Court must say that so far as
the factum of the accident is concerned, it
has been disbelieved by the Tribunal on
account of some variation of the date and
time of registration of the First Information
Report shown in the check F.I.R., the
autopsy report and the other police papers,
besides the fact that the S.P's. orders on the
panchayatnama are of a later day than the
inquest proceedings. These are not at all
matters which ought to have weighed with
the Tribunal in disbelieving the factum of
accident. The latter remarks of the Tribunal,
picking holes in the claimants' case due to
variation of the time of registration of the
F.I.R., comparing it with other police
papers, is reminiscent of the judgment of a
Criminal Court in yesteryears, doubting the
prosecution on the basis of ill-matching
entries of date, time etc. in various police
papers, such as the check F.I.R., the
autopsy report and the inquest report. That
could never have been the approach of the
Motor Accident Claims Tribunal, where the
jurisdiction is not plain adversarial, but
substantially inquisitorial.

33. In this connection, reference may
be made to the judgment of the Supreme
Court in Rajwati alias Rajjo and others v.
United
India
Insurance
Company
Limited and others3. In Rajwati (supra),
it has been held :

18. Reference in this connection may
also be made to the observations made by
this Court in the case of Sunita v. Rajasthan
State
Road
Transport
Corporation*,
wherein it was observed as under:-
"It is thus well settled that in motor
accident claim cases, once the foundational
fact, namely, the actual occurrence of the
accident, has been established, then the
Tribunal's role would be to calculate the
quantum of just compensation if the
accident had taken place by reason of
negligence of the driver of a motor vehicle
and, while doing so, the Tribunal would not
be strictly bound by the pleadings of the
parties. Notably, while deciding cases
arising out of motor vehicle accidents, the
standard of proof to be borne in mind must
be of preponderance of probability and not
the strict standard of proof beyond all
442 INDIAN LAW REPORTS ALLAHABAD SERIES
reasonable doubt which is followed in
criminal cases."

19.Similarly, in the case of Kusum
Lata v. Satbir#, this Court observed that it
is well known that in a case relating to
motor accident claims, the claimants are
not required to prove the case as it is
required to be done in a criminal trial. The
Court must keep this distinction in mind.

34. But this is about one part of the
Tribunal's reasoning, that is to say, the one
where it has gone on a tangent to criticize
the claimants' evidence by fishing out
contradictions in police papers relating to
the crime concerning the accident. It still
leaves to be judged if the claimants, by any
evidence aliunde, have established the
factum of accident. It is true that two
witnesses produced by the claimants are
not eye-witnesses of the occurrence. It is
also true that the two other passengers on
board the ill-fated car, whose names have
been mentioned by P.W.2 Akhilesh Tripathi
in the witness box, were not produced on
behalf of the claimants. They could have
done that, but for reasons best known to
them, did not do so. It is also true that the
first informant, Faguni Ram, who was
apparently an eye-witness of the accident,
was also not produced in the witness box
on behalf of the claimants. These flaws are,
no doubt, there in the claimants' testimony,
and the Tribunal is not wrong in pointing
these out. The question that still remains is
: Whether the factum of the accident is not
otherwise established? It is a well-reputed
principle of law that admission in pleadings
is good proof of a fact in issue, let alone a
relevant fact. No doubt, the factum of
accident is a fact in issue, if one were to
employ the parlance of the Indian Evidence
Act, 1872. The owner of the offending
truck has averred in paragraph No. 8 of the
written statement, Paper No. 25ख :

8- यह नक कनथि घटिा वाि पत्र के अिुसार सहीं िहीं
िशादई गयी है। उत्तरिािा का चािक सड़क नियमों का पािि करिे
हुए िीमी गनि से वाहि चिा रहा था। सम्पूर्द घटिा मारुिी कार -
यू.पी.-78एि/9280 के चािक की िेजी व िापरवाही से चिािे
के कारर् घनटि हुई है। ट्रक चािक की िुघदटिा में कोई गििी िहीं
थी।

35. In the written statement filed on
behalf of the insurers, while it is denied in
paragraph No. 7 that the accident, on the
date, time and place alleged, never
happened between the offending truck and
the ill-fated car, the alternate plea in
paragraph No. 8 of the written statement
reads :

यह की मारुिी स्वामी िथा याचीगर् को यह भी सानबि
करिा है की कनथि िुघदटिा के समय व निि मारुिी कार िं०यू०पी०-78एि०/9280 बैि रनजस्ट्रेशि, सही रूपसे परनमट व
निटिेश आनि से चि रही थी, यनि उपरोक्त िथ्य वाहि स्वामी व
याचीगर् सानबि िहीं कर पािे हैं िो प्रनिवािी उत्तरिािा की कोई
नजम्मेिारी प्रनिकर अिा करिे की िहीं है ।

36. Even if the plea in the alternative
taken by the insurers were to be discounted,
there is no case positively proved or
evidence about it offered on behalf of the
insurers that there was any kind of
collusion between the owner and the
claimants. Therefore, in the absence of a
finding of collusion between the owner and
the claimants, the plenary admission by the
owner in his written statement, that the
accident did happen between the offending
truck and the ill-fated car at the date, time
and place alleged by the claimants is good
proof of the fact.

37. Admission in pleadings stands on
a much higher foot than admission in
evidence. In this connection, reference may
be made to the decision of the Supreme
Court in Nagindas Ramdas v. Dalpatram
Ichharam alias Brijram and others4. In
11 All. Kumari Jyoti & Ors. Vs. Devendra Singh Yadav & Ors.
443
paragraph No. 27 of the report in
Naginadas, it is observed :

27. .....Admissions, if true and clear, are by
far the best proof of the facts admitted.
Admissions
in
pleadings
or
judicial
admissions, admissible under Section 58 of
the Evidence Act, made by the parties or
their agents at or before the hearing of the
case, stand on a higher footing than
evidentiary admissions. The former class of
admissions are fully binding on the party
that makes them and constitute a waiver of
proof. They by themselves can be made the
foundation of the rights of the parties. On
the other hand, evidentiary admissions
which are receivable at the trial as
evidence,
are
by
themselves,
not
conclusive. They can be shown to be
wrong.

38. Be it noted, that the admission
here is in the owner's written statement.
The primary liability to pay compensation
is that of the owner.