# New India Assurance Co. Ltd v. Smt. Washeema Bano & Ors

- **Citation:** (2022) 6 ILRA 1214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-10
- **Case number:** First Appeal From Order No. 566 of 2016
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-india-assurance-co-ltd-v-smt-washeema-bano-ors-48644
- **Pages:** 18

## Headnote

A. Civil Law - Motor Accident Claim - Motor
Vehicles Act, 1988 - Sections 166 & 173 - n
U.P. Motor Vehicle Rules, 1998, R. 203-A,
211-A - Site Plan - under Rule 203-A of the
Rules 1998, the Investigating Police Officer
is enjoined to prepare a site plan of the
accident, and submit it to the Claims
Tribunal - By virtue of Section 211-A of the
Rules, 1998 the site plan submitted under
Rule 203-A is presumed to be correct and is
to be read in evidence without formal proof
unless proved contrary - in the instant case
site plan shows that the offending vehicle
was
initially
on
the
left
side
but
subsequently turned right causing the
accident which is corroborated by the
testimony of P.W. 2 (Para 18)

B. Civil Law - Motor Accident Claim -
Motor Vehicles Act, 1988 - Charge-sheet -
6 All. New India Assurance Co. Ltd. Vs. Smt. Washeema Bano & Ors.
1215
Relevance - charge-sheet is an important
piece of evidence in motor accident claim
cases where proof of accident required is
not proof beyond reasonable doubt, but
the case has to be considered on the
touchstone
of
preponderance
of
probability- In the instant case, Chargesheet against the driver of the offending
vehicle filed - filing of a charge-sheet
against the driver of the offending vehicle
prima facie points to his culpability - First
Information Report, the charge-sheet, the
site plan and the testimony of the P.W. 2
read jointly and as a whole prove the case
of the claimants that the accident was
caused due to rash and negligent driving
of the offending vehicle (Para 20)

C. Civil Law - Motor Accident Claim - Motor
Vehicles Act - Major sons entitled for
compensation
-
Tribunal
refused
compensation to respondent Nos. 3 to 6
on the ground that they were major at the
time of accident, and were therefore not
entitled
to
compensation
-
Held
-
compensation to the legal representatives
of the deceased who are major is not
limited only to conventional heads and
they may be entitled to compensation for
loss of dependency even if they are
earning members (Para 25)

D. Civil Law - Motor Accident Claim -
Motor Vehicles Act - Claim - future
prospects - if a statutory instrument
affords greater or better benefits, said
statutory instrument shall operate and the
norms laid down by different judicial
precedents shall not limit the operation of
such statutory instrument - statutory
instrument shall prevail over the norms
laid down by judicial precedents only to
the extent it gives greater or better
benefit than the judicial precedents - If
the
norms
laid
down
by
judicial
pronouncements give greater or better
benefit than the formula devised by the
statutory
instrument,
the
judicial
precedents shall 20 prevail over the
statutory instrument. - Supreme Court, in
Urmila Shukla case affirmed the award of
the Tribunal and the High Court which had
added 20% as future prospects in the
income of the deceased who was above 50
years- Held - deceased more than 50 years
of age - in acco

## Text

_Characters 0–39,980 of 60,232. This is a partial read: ask again with offset=39980 for what follows._

1214 INDIAN LAW REPORTS ALLAHABAD SERIES
affection along with the interest accruing
on the same. The opposite party no. 4 /
claimant
no.
4
shall
be
paid
the
compensation computed above for loss of
parental consortium and for loss of love
and affection along with the interest
accruing on the same. The medical
expenses incurred on the treatment of the
deceased shall be divided equally between
opposite party no. 1 / claimant no. 1 and
opposite party no. 3 / claimant no. 3.

43. The balance amount / excess
amount as awarded by this Court in the
present appeals shall be deposited by the
National
Insurance
Company
Ltd.,
Lucknow in the Tribunal within three
months from today. The amount so
deposited
by
the
National
Insurance
Company Ltd. under the present order of
this Court, shall in turn be deposited by the
Motor Accident Claims Tribunal, Lucknow
in the highest interest bearing fixed deposit
schemes, either of the post office or of any
nationalized bank. The receipts of the fixed
deposit shall be handed over to the
claimants who shall be entitled to withdraw
the maturity amount on the maturity of the
fixed deposits. The maturity amount shall
be credited by the bank/post office in any
savings account held by the claimants
singly. The concerned bank or post office
shall not permit any loan or advance
against the fixed deposits made in favour of
the
claimants.
The
Tribunal,
while
depositing the amount in any fixed deposit
scheme, shall communicate the directions
issued by this Court to the concerned
bank/post office.

44. With the aforesaid directions and
observations, First Appeal From Order No.
817 of 2016 is dismissed and First Appeal
From Order No. 51 of 2018 is allowed.
Parties shall bear their own cost.

45. The office shall transmit the
records of the case to the Tribunal, at the
earliest.
----------
(2022)06ILR A1214
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.06.2022

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

First Appeal From Order No. 566 of 2016
With
First Appeal From Order No. 145 of 2017

New India Assurance Co. Ltd. ...Appellant
Versus
Smt. Washeema Bano & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Asit Srivastava

Counsel for the Respondents:
Sri Satendra Nath Rai

A. Civil Law - Motor Accident Claim - Motor
Vehicles Act, 1988 - Sections 166 & 173 - n
U.P. Motor Vehicle Rules, 1998, R. 203-A,
211-A - Site Plan - under Rule 203-A of the
Rules 1998, the Investigating Police Officer
is enjoined to prepare a site plan of the
accident, and submit it to the Claims
Tribunal - By virtue of Section 211-A of the
Rules, 1998 the site plan submitted under
Rule 203-A is presumed to be correct and is
to be read in evidence without formal proof
unless proved contrary - in the instant case
site plan shows that the offending vehicle
was
initially
on
the
left
side
but
subsequently turned right causing the
accident which is corroborated by the
testimony of P.W. 2 (Para 18)

B. Civil Law - Motor Accident Claim -
Motor Vehicles Act, 1988 - Charge-sheet -
6 All. New India Assurance Co. Ltd. Vs. Smt. Washeema Bano & Ors.
1215
Relevance - charge-sheet is an important
piece of evidence in motor accident claim
cases where proof of accident required is
not proof beyond reasonable doubt, but
the case has to be considered on the
touchstone
of
preponderance
of
probability- In the instant case, Chargesheet against the driver of the offending
vehicle filed - filing of a charge-sheet
against the driver of the offending vehicle
prima facie points to his culpability - First
Information Report, the charge-sheet, the
site plan and the testimony of the P.W. 2
read jointly and as a whole prove the case
of the claimants that the accident was
caused due to rash and negligent driving
of the offending vehicle (Para 20)

C. Civil Law - Motor Accident Claim - Motor
Vehicles Act - Major sons entitled for
compensation
-
Tribunal
refused
compensation to respondent Nos. 3 to 6
on the ground that they were major at the
time of accident, and were therefore not
entitled
to
compensation
-
Held
-
compensation to the legal representatives
of the deceased who are major is not
limited only to conventional heads and
they may be entitled to compensation for
loss of dependency even if they are
earning members (Para 25)

D. Civil Law - Motor Accident Claim -
Motor Vehicles Act - Claim - future
prospects - if a statutory instrument
affords greater or better benefits, said
statutory instrument shall operate and the
norms laid down by different judicial
precedents shall not limit the operation of
such statutory instrument - statutory
instrument shall prevail over the norms
laid down by judicial precedents only to
the extent it gives greater or better
benefit than the judicial precedents - If
the
norms
laid
down
by
judicial
pronouncements give greater or better
benefit than the formula devised by the
statutory
instrument,
the
judicial
precedents shall 20 prevail over the
statutory instrument. - Supreme Court, in
Urmila Shukla case affirmed the award of
the Tribunal and the High Court which had
added 20% as future prospects in the
income of the deceased who was above 50
years- Held - deceased more than 50 years
of age - in accordance with Rule 220-A(3)
of the Rules, 1998, 20% had to be added
as future prospects in the established
income of the deceased (Para 36, 40)

E. Civil Law - Motor Accident Claim - Motor
Vehicles Act - Claim - 'loss of consortium'
and 'loss of love and affection' - Rule 220A(4) of Rules, 1998 identifies 'loss of
consortium' and 'loss of love and affection'
as different heads for award of nonpecuniary damages - Rule 220-A(4) gives
better benefit than the principles laid
down by the Supreme Court in Satinder
Kaur (supra) which held that no separate
compensation is to be paid for loss of love
and affection - so far as the amount to be
awarded under the conventional heads is
concerned, the amounts prescribed in
Pranay Sethi case and Magma General
case give greater benefit than Rule 220- A
- the categories under which the nonpecuniary damages are to be awarded is
to be decided in light of Rule 220- A(4)
and the amount to be awarded under the
aforesaid categories is to be the amount
fixed by the Supreme Court in Pranay
Sethi (supra) and Magma General (supra)
-
claimants
were
entitled
separate
compensations under both categories, i.e.,
for loss of love and affection and also for
loss of consortium - compensation for loss
of love and affection determined as
Rs.50,000/- and the compensation for loss
of consortium, determined as Rs.40,000/
(para 37, 38)

Dismissed (E-5)

List of Cases cited:-

1. National Insurance Company Ltd. Vs Pranay
Sethi & ors., (2017) 16 S.C.C. 680

2. Magma General Insurance Company Ltd. Vs
Nanu Ram, (2018) SCC OnLine SC 1546
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Anita Sharma Vs New India Assurance
Company Limited & anr., (2021) 1 S.C.C. 171

4. Mangla Ram Vs Oriental Insurance Company
Limited & ors., (2018) 5 S.C.C. 656

5. Dr. Anoop Kumar Bhattacharya & anr. Vs
National Insurance Co. Ltd., (2021) 12 ADJ 596

6. National Insurance Company Limited Vs
Birender & ors., (2020) 11 S.C.C. 356

7. United India Insurance Co. Ltd. Vs Satinder
Kaur @ Satwinder Kaur & ors., (2021) 11 S.C.C.
780

8. Sarla Verma (Smt) & ors. Vs Delhi Transport
Corporation & anr., 2009 (6) SCC 121

9. The New India Assurance Company Ltd. Vs
Smt. Somwati & ors., (2020) 9 SCC 644

10. New India Assurance Company Ltd. Vs
Urmila Shukla & ors., (2021) SCC OnLine SC 822

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. Both the First Appeals From Order
have been filed under Section 173 of the
Motor Vehicles Act, 1988 (hereinafter
referred to as, 'Act, 1988') and arise from
the same award of the Tribunal, i.e., the
judgment and award dated 26.3.2016
passed by the Motor Accident Claims
Tribunal/FTC Court, District-Lakhimpur
Kheri (hereinafter referred to as, 'Tribunal')
in Motor Accident Claim Petition No. 339
of 2014 and were therefore connected and
have been heard together.

2. Motor Accident Claim Petition No.
566 of 2016 has been filed by the Insurance
Company, which was one of the defendant
in Motor Accident Claim Petition No. 339
of 2014 and has been filed to set aside the
award dated 26.3.2016. Motor Accident
Claim Petition No. 145 of 2017 has been
filed by the claimants for enhancement of
compensation. The Insurance Company is
the appellant in F.A.F.O. No. 566 of 2016
and shall be referred as Insurance Company
in the present judgement, the claimants are
respondent Nos. 1 to 8 in the aforesaid
appeal and shall be referred as claimants in
the present judgement. The owner of the
offending vehicle is respondent No. 9 in
F.A.F.O. No. 566 of 2016 and shall be
referred as the owner of the vehicle. The
driver of the offending vehicle has been
arrayed as respondent No. 10 in F.A.F.O.
No. 566 of 2016 and shall be referred as
driver of the offending vehicle in the
present

3. Claimant No. 1 is the wife of the
deceased, claimant No. 2 is the mother of
the deceased, claimant Nos. 3 to 7 are the
sons of the deceased and claimant No. 8 is
the daughter of the deceased. On the date of
the accident claimant Nos. 3 to 6 were
major and between 18 to 23 years.

4. The order-sheet of the First Appeal
From Order No. 145 of 2017 shows that
vide order dated 13.12.2017 a Division
Bench of this Court had condoned the delay
in filing the aforesaid appeal. However, it
appears that regular number has not yet
been allotted to First Appeal From Order
No. 145 of 2017 and the records reflect the
defective number. However, as the delay in
filing the appeal has been condoned, the
Court proceeded to hear the appeal on
merits. Apart from the aforesaid, the ordersheet of the case also indicates that service
of notice on the owner of the vehicle was
held to be sufficient, but service of notice
on the driver of he offending vehicle, who
has been arrayed as respondent No. 2 in
First Appeal From Order No. 145 of 2017,
was held not to be sufficient by noting
dated 1.3.2019 of the Joint Registrar (J)(L).
However, as the Insurance Company has
6 All. New India Assurance Co. Ltd. Vs. Smt. Washeema Bano & Ors.
1217
not questioned the award of the Tribunal so
far as the award holds it liable to indemnify
the owner of the vehicle, therefore, the
Court has proceeded to hear both the
appeals on merits without waiting for
service of notice of the appeal on the driver
of the offending vehicle.

5. The facts of the case are that the
claimants instituted Motor Accident Claim
Petition Case No. 339 of 2014 before the
Tribunal
alleging
that
one
Rafiq
(hereinafter referred to as, ''deceased') was
killed in an accident which happened on
1.8.2014 due to rash and negligent driving
of a tanker bearing Registration No. UP 31
T
5208
(hereinafter
referred
to
as,
''offending vehicle'). It was stated in the
claim petition that on 1.8.2014 at 4:30 p.m.
the deceased was going on a motorcycle to
join his duties when the offending vehicle
hit the motorcycle from the front as a result
of which the deceased suffered injuries and
subsequently died on 17.8.2014 due to the
aforesaid injuries. It was further stated in
the claim petition that the deceased was
aged 45 years and was working as Fodder
Cutter in the Forest Department getting a
salary of Rs. 26,280/- per month and the
claimants were dependent on the deceased.
On the aforesaid pleadings the claimants
sought compensation of Rs. 50 lacs for the
death of Rafiq. It is also on record that a
First Information Report registering Case
Crime No. 630 of 2014 under Sections 279,
358 and 427 I.P.C. was registered against
the driver of the offending vehicle on
4.8.2014 and a charge-sheet against the
driver has been filed in the aforesaid case.

6. The owner and the driver of the
offending vehicle as well as the Insurance
Company contested the appeal and filed
their written statements. In their written
statements the owner and driver of the
offending vehicle denied the involvement
of the offending vehicle in the accident and
also the allegation regarding negligence of
the driver in causing the accident. The
Insurance Company also filed its written
statement contesting the claim petition and,
apart from denying the involvement of the
vehicle in the accident, the Insurance
Company also pleaded that the accident
occurred because of the negligence of the
deceased. It was also pleaded by the
Insurance Company that the deceased was
more than 55 years of age at the time of
accident and did not have a valid driving
license at the time of accident.

7. On the pleadings of the parties, the
Tribunal framed five issues. Issue No. 1
was as to whether on 1.8.2014 at 4:30 p.m.
the deceased was injured in an accident
caused due to rash and negligent driving of
the
offending
vehicle
and
died
on
17.8.2014 because of the injuries caused in
the accident. Issue No. 2 was as to whether
at the time of accident the driver of the
offending vehicle had a valid driving
license. Issue No. 3 was as to whether at
the time of the accident the offending
vehicle was insured with the Insurance
Company and Issue No. 4 was as to
whether at the time of the accident the
offending
vehicle
was
being
driven
contrary to the terms of the insurance
contract. Issue No. 5 framed by the
Tribunal was regarding entitlement of the
claimants to compensation, the amount of
compensation they were entitled to and the
defendant liabl

8. Before the Tribunal, the claimants
filed
the
First
Information
Report
registering Case Crime No. 630 of 2014
(marked as Paper No. 6Ga and 28Ga/2 in
the Tribunal), the Post-Mortem Report of
the deceased (marked as Paper No. 8Ga in
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
the Tribunal), the Charge-sheet filed
against the driver of the offending vehicle
(marked as Paper No. 28Ga/10 in the
Tribunal), the site plan prepared by the
Investigating Officer in Case Crime No.
630 of 2014 (marked as Paper No.
28Ga/8in the Tribunal), the driving license
of the deceased (marked as Paper No. 46Ga
in the Tribunal), pay bills of the deceased
(marked as Paper Nos. 48Ga to 50Ga in the
Tribunal), service book of the deceased
(marked as Paper No. 47Ga in the
Tribunal) and receipts showing medical
expenses incurred in the treatment of the
deceased (marked as paper Nos. 30Ga/1
and 30Ga/135 in the Tribunal). The owner
and the driver of the offending vehicle filed
the driving license of the driver of the
offending vehicle, fitness certificate and the
insurance cover note of the offending
vehicle as well as tax receipts relating to
the offending vehicle.

9. In the Tribunal, the claimant No. 1
deposed as plaintiff-witness No. 1 and one
Mohd. Farooq, who is the eye-witness of
the incident deposed as plaintiff-witness
No. 2.

10. The Tribunal after considering the
testimony of P.W. 2, the First Information
Report, the charge-sheet filed against the
owner of the offending vehicle, the site
plan and the postmortem report of the
deceased, decided Issue No. 1 in favour of
the claimants and against the defendants.
While recording its findings on issue No. 1,
the Tribunal rejected the arguments of the
defendants regarding any contributory
negligence by the deceased.

11. Issue Nos. 2, 3 and 4 were
decided in favour of the owner of the
offending vehicle and against the Insurance
Company.

12. So far as issue No. 5 is concerned,
the Tribunal held the Insurance Company
liable to pay compensation and awarded a
total compensation of Rs. 23,32,640/- with
7% simple interest from the date of filing
of the claim petition. The Tribunal held the
age of the deceased to be 52 years on the
basis of his driving license and therefore
applied
a
multiplier
of
11
while
determining the loss of dependency caused
due to the death of the deceased. Relying
on the salary bills of the deceased, the
Tribunal determined the multiplicand as
Rs. 26,280/- and deducted 1/3 as personal
and living expenses of the deceased. The
Tribunal did not make any allowance for
future prospects while determining the loss
of dependency and paid Rs. 5,000/- for
funeral expenses, loss of love and affection
and loss of consortium and Rs. 10,000/- for
medical expenses incurred by the claimants
in the treatment of the deceased. The
Tribunal has awarded compensation only to
the claimant Nos. 1, 2, 7 and 8 and has
refused compensation to respondent Nos. 3
to 6 on the ground that they were major at
the time of accident.

13. It was argued by the counsel for
the
Insurance
Company
that
in
its
judgement and award dated 26.3.2016 the
Tribunal has erroneously shifted the burden
of proof on the defendants even though the
settled law is that the burden to prove the
negligence of the driver of the offending
vehicle in case of accident is on the
claimants. It was argued that in his crossexamination, the P.W. 2 had admitted, that
half of the road on the right side of the
offending vehicle was vacant when the
offending vehicle hit the motorcycle and
the width of the road was 15 feet, which
proves that almost 7.5 feet on the left side
of the motorcycle of the deceased was
vacant
when
the
offending
vehicle
6 All. New India Assurance Co. Ltd. Vs. Smt. Washeema Bano & Ors.
1219
allegedly hit the motorcycle and, therefore,
the deceased could have easily avoided the
accident if he was careful. It was argued
that the accident as shown in the site plan
which shows that the offending vehicle hit
the motorcycle of the deceased on the right
side of the road, is not corroborated by the
testimony of P.W. 2 and, therefore, can not
be relied upon to accept the plea of the
claimants. It was argued that the Tribunal
has misread the documentary and oral
evidence on record which clearly went to
show that the accident was not caused due
to the negligence of the driver of the
offending vehicle. It was argued that for the
aforesaid reasons the judgement and award
dated 26.3.2016 passed by the Tribunal is
liable to be set aside.

14. Rebutting the contention of the
counsel for the appellant, the counsel for
the claimants has supported the reasons
given by the Tribunal for its finding on
issue No. 1. It was argued by the counsel
for the claimants that the oral and the
documentary
evidence
on
record
conclusively proved that the deceased was
injured in the accident and died because of
the injuries and the accident took place due
to the negligence of the driver of the
offending vehicle. The counsel for the
claimants has argued that the Tribunal,
however,
has
awarded
very
less
compensation to the claimants. It was
argued that the postmortem report of the
deceased showed that deceased was 45
years old and, therefore, a multiplier of 14
had to be applied while determining the
pecuniary
damages
payable
to
the
claimants. It was argued that the Tribunal
has wrongly deducted 1/3 as personal and
living expenses of the deceased and has
also erred in not adding future prospects in
the
income
of
the
deceased
while
determining the pecuniary damages. It was
further argued that the claimants were
entitled to compensation for loss of estate,
funeral
expenses
and
separate
compensations for loss of consortium as
well as for loss of love and affection as
determined
in
National
Insurance
Company Ltd. Vs. Pranay Sethi & Others,
(2017) 16 S.C.C. 680 and Magma General
Insurance Company Ltd. vs. Nanu Ram,
(2018) SCC OnLine SC 1546 and as
provided in U.P. Motor Vehicle Rules,
1998 (hereinafter referred to as, ''Rules,
1998'). It was further argued that the
claimants had proved the medical expenses
of Rs. 40,000/- incurred in the treatment of
the deceased and the Tribunal has wrongly
awarded only Rs. 10,000/- against the
medical expenses. It was argued that for the
aforesaid
reasons,
the
compensation
awarded by the Tribunal is to be enhanced,
First Appeal From Order No. 566 of 2016
is liable to be dismissed and First Appeal
From Order No. 145 of 2017 is to be
allowed.

15. I have considered the submissions
of the counsel for the parties and perused
the records of the Tribunal.

16. The first issue that arises for
determination by this Court is as to whether
the accident which took place on 1.8.2014
injuring the deceased and ultimately
resulting in his death on 17.8.2014 was
caused due to rash and negligent driving of
the offending vehicle by its driver.

17. It is settled law that the standard
of proof required in motor accident claim
cases under the Act is preponderance of
probabilities and not that of proof beyond
reasonable doubt. The strict principles of
evidence and standard of proof required in
a criminal trial are not applicable in
accident cases registered under the Act. In
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
this context, the observations of the
Supreme Court in Anita Sharma Vs. New
India Assurance Company Limited &
Another,
(2021)
1
S.C.C.
171
is
reproduced below :-

"21. Equally, we are concerned
over the failure of the High Court to be
cognizant of the fact that strict principles
of evidence and standards of proof like
in a criminal trial are inapplicable in
MACT claim cases. The standard of
proof in such like matters is one of
preponderance of probabilities, rather
than beyond reasonable doubt. One
needs to be mindful that the approach and
role of Courts while examining evidence in
accident claim cases ought not to be to find
fault with non-examination of some best
eye-witnesses, as may happen in a criminal
trial; but, instead should be only to analyze
the material placed on record by the parties
to ascertain whether the claimant's version
is more likely than not true.

22. A somewhat similar situation
arose in Dulcina Fernandes v. Joaquim
Xavier Cruz wherein this Court reiterated
that: (SCC p. 650, para 7)

"7. It would hardly need a
mention that the plea of negligence on the
part of the first respondent who was driving
the pick-up van as set up by the claimants
was required to be decided by the learned
Tribunal
on
the
touchstone
of
preponderance
of
probabilities
and
certainly not on the basis of proof beyond
reasonable doubt. (Bimla Devi v. Himachal
RTC)."

(Emphasis added)

18. The plaintiff-witness No. 2, i.e.,
Mohd. Farooq, who was riding on another
motorcycle behind the deceased and was an
eye-witness of the accident has proved the
accident as pleaded in the claim petition. The
statement of P.W. 2 in his cross-examination
that, at the time of accident half of the road
on the right side of the offending vehicle was
vacant does not necessarily prove that the
accident occurred because of the negligence
of the deceased. An eye-witness can only
give a rough, and not an exact account, of the
width of the road and the position of the
vehicles at the time of accident. The
statement of P.W. 2 in his cross-examination
does not contradict the site plan so far as the
position of the vehicles at the time of accident
is concerned. The site plan shows that the
offending vehicle was initially on its left side,
i.e., on the west side of the road, but had
turned right and hit the motorcycle of the
deceased. The clause ''at the time of accident'
in the statement of P.W. 2 can not be read to
identify the position of the vehicles at the
exact time when the offending vehicle
collided with the motorcycle but, on a
reading of the testimony of P.W. 2 as a
whole, it indicates the position of the
offending
vehicle
slightly
before
the
collision. The site plan which shows that the
offending vehicle was initially on the left side
but subsequently turned right causing the
accident is corroborated by the testimony of
P.W. 2. At this stage it would be relevant to
note that under Rule 203-A of the Rules
1998, the Investigating Police Officer is
enjoined to prepare a site plan of the accident,
and submit it to the Claims Tribunal. By
virtue of Section 211-A of the Rules, 1998
the site plan submitted under Rule 203-A is
presumed to be correct and is to be read in
evidence without formal proof unless proved
contrary. Rules 203-A and 211-A, are
reproduced below :-

"203-A. Duties of Investigating
Police Officer-(1) The Investigating Police
Officer shall prepare a site plan, drawn on
6 All. New India Assurance Co. Ltd. Vs. Smt. Washeema Bano & Ors.
1221
scale as to indicate the layout and width
etc. of the road/roads or place as the case
may be, the position of Vehicle/Vehicles,
or persons, involved and such other facts as
the case may be relevant, authenticated by
the witnesses and in case no witness is
available same shall be recorded, so as to
preserved the evidence relating to accident.
He shall also get the scene of accident
photographed from such angles as to
clearly depict the accident, as above, interalia for the purpose of proceeding before
the Claims Tribunal.

211-A. Presumption about the
papers- The reports, certificates and papers
submitted or issued under Rules 203-A,
203-C and 203-D shall be presumed to be
correct and shall be read in evidence
without
formal
proof
unless
proved
contrary."

19. It may also be noted that there is
no plea of any contributory negligence on
the part of the deceased by the driver of the
offending vehicle in his written statement.
The driver of the offending vehicle also did
not appear as a witness to prove that the
deceased was negligent or not careful and if
the deceased was careful the accident could
have been avoided.

20. The plea of the claimants that the
accident was caused due to rash and negligent
driving of the offending vehicle is also
proved by the contents of the First
Information Report and the fact that chargesheet against the driver of the offending
vehicle has been filed in the aforesaid case.
The filing of a charge-sheet against the driver
of the offending vehicle prima facie points to
his culpability. The charge-sheet is an
important piece of evidence in motor accident
claim cases where proof of accident required
is not proof beyond reasonable doubt, but the
case has to be considered on the touchstone
of preponderance of probability. In this
context the observations of the Supreme
Court in Mangla Ram Vs. Oriental
Insurance Company Limited & Others,
(2018) 5 S.C.C. 656 is reproduced below :-

"27.
Another
reason
which
weighted with the High Court to interfere in
the first appeal filed by respondents 2 & 3,
was absence of finding by the Tribunal about
the factum of negligence of the driver of the
subject jeep. Factually, this view is untenable.
Our understanding of the analysis done by the
Tribunal is to hold that Jeep No. RST 4701
was driven rashly and negligently by
respondent 2 when it collided with the
motorcycle of the appellant leading to the
accident. This can be discerned from the
evidence of witnesses and the contents of the
charge-sheet file by the police, naming
Respondent 2. This Court in a recent decision
in Dulcina Fernandes, noted that the plea of
negligence on the part of the driver of the
offending vehicle as set up by the claimants
was required to be decided by the Tribunal on
the
touchstone
of
preponderance
or
probability and certainly not by standard of
proof beyond reasonable doubt. Suffice it to
observe
that
the
exposition
in
the
judgements already adverted to by us,
filing of charge-sheet against Respondent 2
prima facie points towards his complicity
in driving the vehicle negligently and
rashly. Further, even when the accused were
to be acquitted in the criminal cases, this
Court opined that the same may be of no
effect on the assessment of the liability
required in respect of motor accident cases by
the Tribunal."

(Emphasis added)

21. The observations of the Division
Bench of this Court in paragraph Nos. 29
and 30 of its judgement reported in Dr.
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
Anoop Kumar Bhattacharya & Another
Vs. National Insurance Co. Ltd., (2021)
12 ADJ 596 are also relevant for the
purpose and are reproduced below :-

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

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

(Emphasis added)

22. The First Information Report, the
charge-sheet,
the
site
plan
and
the
testimony of the P.W. 2 read jointly and as
a whole prove the case of the claimants as
pleaded in their claim petition, i.e., the
accident was caused due to rash and
negligent driving of the offending vehicle.

23. For the aforesaid, reasons the
findings of the Tribunal on Issue no. 1 are
affirmed.

24. So far as the other point that arises
for determination by this Court is regarding
the compensation payable to the claimants.
Before proceeding further, it would be
relevant to note that the Tribunal has
denied compensation to claimant Nos. 3 to
6 on the ground that they were major at the
time of the accident and were therefore not
entitled to compensation. The aforesaid
6 All. New India Assurance Co. Ltd. Vs. Smt. Washeema Bano & Ors.
1223
opinion of the Tribunal is not correct.
Under Section 166 of the Act, 1988 an
application for compensation arising out of
an accident may be made, ''by all or any of
the legal representatives of the deceased,
where death has resulted from the accident'.
Proviso to Section 166 of the Act, 1988
provides
that
where
all
the
legal
representatives of the deceased have not
joined in the application for compensation,
the application shall be made on behalf of
or for the benefit of all the legal
representatives of the deceased and the
legal representatives who have not so
joined, shall be impleaded as respondents
to the application. Section 166(1) of the
Act, 1988 is reproduced below :-

"166.
Application
for
compensation.--(1) An application for
compensation arising out of an accident of
the nature specified in sub-section (1) of
section 165 may be made--

(a) by the person who has
sustained the injury; or

(b) by the owner of the property;
or

(c) where death has resulted
from the accident, by all or any of the
legal representatives of the deceased;

(d) by any agent duly authorised by
the person injured or all or any of the legal
representatives of the deceased, as the case
may be:

Provided that where all the legal
representatives of the deceased have not
joined
in
any
such
application
for
compensation, the application shall be made
on behalf of or for the benefit of all the legal
representatives of the deceased and the legal
representatives who have not so joined, shall
be
impleaded
as
respondents
to
the
application."

(Emphasis added)

25. Recently, the Supreme Court in
National Insurance Company Limited Vs.
Birender & Others, (2020) 11 S.C.C. 356
reiterated that the compensation to the legal
representatives of the deceased who are
major is not limited only to conventional
heads and they may be entitled to
compensation for loss of dependency even if
they are earning members. The observations
of the Supreme Court in paragraph Nos. 13
and 14 of its judgement in Birender (Supra)
are reproduced below :-

"13. In para 15 of Manjuri Bera,
while adverting to the provisions of Section
140 of the Act, the Court observed that even
if there is no loss of dependency, the
claimant, if he was a legal representative, will
be entitled to compensation. In the concurring
judgment of Justice S.H. Kapadia, as His
Lordship then was, it is observed that there is
distinction between "right to apply for
compensation"
and
"entitlement
to
compensation". The compensation constitutes
part of the estate of the deceased. As a result,
the legal representative of the deceased would
inherit the estate. Indeed, in that case, the
Court was dealing with the case of a married
daughter of the deceased and the efficacy of
Section 140 of the Act. Nevertheless, the
principle underlying the exposition in this
decision would clearly come to the aid of the
respondent Nos. 1 and 2 (claimants) even
though they are major sons of the deceased
and also earning.

14. It is thus settled by now that
the legal representatives of the deceased
have a right to apply for compensation.
Having said that, it must necessarily
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
follow that even the major married and
earning sons of the deceased being legal
representatives have a right to apply for
compensation and it would be the
bounden duty of the Tribunal to
consider the application irrespective of
the fact whether the concerned legal
representative was fully dependent on
the deceased and not to limit the claim
towards conventional heads only. The
evidence on record in the present case
would suggest that the claimants were
working as agricultural labourers on
contract basis and were earning meagre
income
between
Rs.1,00,000/-
and
Rs.1,50,000/- per annum. In that sense,
they were largely dependent on the earning
of their mother and in fact, were staying
with her, who met with an accident at the
young age of 48 years."

(Emphasis added)

26. In view of the law laid down by
the Supreme Court in Birender (Supra),
the claimant nos. 3 to 6 can not be denied
compensation merely because they were
major at the time of accident. In the present
case, the Tribunal has not only not awarded
compensation for loss of dependency to
respondent Nos. 3 to 6 but has also not
awarded any compensation to respondent
Nos. 3 to 6 under the conventional heads.
In her affidavit, the P.W. 1, i.e., the
claimant No. 1 has stated that family of the
deceased which included his major sons,
i.e., the respondent Nos. 3 to 6 were
dependent on the deceased. However, in
her cross-examination the P.W. 1 has stated
that the claimant No. 3 was working in
Forest Department and the claimant No. 4
was doing odd jobs as casual worker. In
light of the testimony of P.W. 2, the
claimant no. 4 is to be considered as
dependent on the deceased and the claimant
No. 3 was entitled to compensation, at
least,
under
the
conventional
heads.
Similarly, the claimant Nos. 5 and 6 were
entitled to compensation for loss of
dependency
as
well
as
under
the
conventional heads as there is no evidence
that they were employed at the time of
accident and were not dependent on the
deceased. The Tribunal has clearly erred on
the aforesaid count and it is held that
respondent Nos. 3 to 6 were also entitled to
compensation for the death of their father
in the accident.

27. In United India Insurance Co.
Ltd. Vs. Satinder Kaur @ Satwinder Kaur
& Others, (2021) 11 S.C.C. 780, it was
held that mother is to be considered as
dependent on the deceased. Thus, in the
present case there were seven dependents
of the deceased. In accordance with the
judgement of the Supreme Court in Sarla
Verma
(Smt)
&
Others
Vs.
Delhi
Transport Corporation & Another, 2009
(6) SCC 121, 1/5 is to be deducted towards
the personal and living expenses from the
established income of the deceased while
determining the multiplicand.

28. The other question that arises
while
determining
compensation
is
regarding the multiplier to be applied
which is dependent on the age of the
deceased. In the claim petition, the age of
the deceased was stated to be 47 years. The
postmortem report records the age of the
deceased as 45 years. The service-book of
the deceased shows the date of birth of the
deceased to be 27.6.1967, i.e., 47 years at
the time of his death. The driving license of
the deceased shows the date of birth of the
deceased as 1.1.1962, i.e., the deceased was
52 years old at the time of his death. None
of the aforesaid documents are conclusive
proof of the age of the deceased. However,
6 All. New India Assurance Co. Ltd. Vs. Smt. Washeema Bano & Ors.
1225
the date of birth of a licensee on the driving
license is recorded on the particulars given
by the holder of the driving license himself.
Apparently, it was on the information of
the deceasd that his date of birth was
recorded in the driving license. The
Tribunal committed no illegality in holding
the age of the deceased to be 52 years on
the basis of his driving license. The
findings of the Tribunal on the aforesaid
issue is affirmed. On the age of the
deceased, in accordance with the law laid
down in Sarla Verma (Supra), a multiplier
of 11 has to be applied while determining
the pecuniary damages payable to the
claimants.

29. The income of the deceased has
been proved by his pay-bills which showed
that the deceased earned Rs. 26,280/- per
month and the deceased was working as
fodder cutter in the Forest Department. The
income of the deceased as determined by
the Tribunal has not been disputed by the
Insurance Company in the present appeal.
Thus, the multiplicand is to be determined
on the aforesaid income of the deceased.

30. It was argued by the counsel for
the claimants that the multiplicand and thus
the
pecuniary
damages
had
to
be
determined by adding future prospects in
the established income of the deceased in
accordance with Rule 220-A of the Rules
1998 and the claimants were also entitled to
separate
compensations
for
loss
of
consortium and loss of love and affection
as well as compensations for loss of estate
and funeral expenses as determined in
Pranay Sethi (Supra) and Magma General
Insurance (Supra).

31. There is some difference between
the parameters for award of compensation
as prescribed by Rule 220-A and the
principles for award of compensation as
laid down by the Supreme Court in its
different judgments. Two differences which
are relevant for the present case are
considered below.

32. Rule 220-A (3) of the Rules, 1998
provides that future prospects of a deceased
shall be added in the actual salary or
minimum wages of the deceased as
under :-

(i) Below 40 years of age : 50%
of the salary

(ii) Between 40-50 years of age :
30% of the salary