# Oriental Insurance Company Ltd v. Dayawati Gupta & Ors

- **Citation:** (2025) 5 ILRA 1602
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-26
- **Case number:** First Appeal From Order No. 664 of 2017
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/oriental-insurance-company-ltd-v-dayawati-gupta-ors-53299
- **Pages:** 9

## Headnote

Priyam
Mishra,
Anil
Kumar
Tiwari,
Sadanand

Civil Law-The Motor Vehicles Act,1988Sections 169(2) & 173 - The Evidence
Act,1872-Section
114(g)---
The
eye
witness has been produced and nothing could
be extracted from him, which may create any
doubt about veracity of his evidence and
indicate that he had not seen the accident---
Once an eye witness has been produced, who
proved the accident, merely because a person
who was in the car has not been produced
cannot be a ground for not believing the
testimony of the eye witness---The tribunal
determined the income of the deceased on
the basis of evidence produced before it.
Since no contrary evidence could be
produced or shown, no illegality or error in
the income of the deceased determined by
the tribunal--- The Claims Tribunal shall
have all the powers of a Civil Court for the
purpose of taking evidence on oath and of
enforcing the attendance of witnesses and
of compelling the discovery and production
of documents and material objects and for
such other purposes as may be prescribed-
-- Merely because the application moved
by the appellant for summoning and
providing copies of the income tax return
on the date of judgment was dismissed by
the tribunal, it cannot be said that the
power has not been exercised by the
tribunal because the Court has also to see
that process of law may not be misused to
delay or stall the proceedings---Petition
dismissed. (E-15)

List of the cases referred-:

## Text

1602 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no. 3 therein i.e the insurance
company which is the appellant. Moreover,
the learned Commissioner has held that
owner & the insurance company jointly and
severally liable to pay the awarded amount.

18. Accordingly, considering the
aforesaid finding as recorded by the learned
Commissioner along with the judgment of
the Apex Court in the case of Premi Devi
(supra), the said ground is also rejected.

19. Keeping in view the aforesaid
discussion, no case for interference in the
impugned award is made out. Accordingly,
the appeal is dismissed.
----------
(2025) 5 ILRA 1602
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.05.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 664 of 2017

Oriental Insurance Company Ltd.
 ...Appellant
Versus
Dayawati Gupta & Ors. ...Respondents

Counsel for the Appellant:
Subhash Chandra Gulati

Counsel for the Respondents:
Priyam
Mishra,
Anil
Kumar
Tiwari,
Sadanand

Civil Law-The Motor Vehicles Act,1988Sections 169(2) & 173 - The Evidence
Act,1872-Section
114(g)---
The
eye
witness has been produced and nothing could
be extracted from him, which may create any
doubt about veracity of his evidence and
indicate that he had not seen the accident---
Once an eye witness has been produced, who
proved the accident, merely because a person
who was in the car has not been produced
cannot be a ground for not believing the
testimony of the eye witness---The tribunal
determined the income of the deceased on
the basis of evidence produced before it.
Since no contrary evidence could be
produced or shown, no illegality or error in
the income of the deceased determined by
the tribunal--- The Claims Tribunal shall
have all the powers of a Civil Court for the
purpose of taking evidence on oath and of
enforcing the attendance of witnesses and
of compelling the discovery and production
of documents and material objects and for
such other purposes as may be prescribed-
-- Merely because the application moved
by the appellant for summoning and
providing copies of the income tax return
on the date of judgment was dismissed by
the tribunal, it cannot be said that the
power has not been exercised by the
tribunal because the Court has also to see
that process of law may not be misused to
delay or stall the proceedings---Petition
dismissed. (E-15)

List of the cases referred-:

1. Oriental Insurance Co. Ltd. versus Premlata
Shukla & ors.; 2007(3) T.A.C. 11 (S.C.)

2. Mangla Ram versus Oriental Insurance Co.
Limited & ors.Law Finder Doc Id # 999611
(2018 AIR SC 1900)

3. Anita Sharma & ors.versus The New India
Assurance Co. Limited & anr.Law Finder Doc Id
# 1779856; (2021 AIR SC 302).

4. Parashuram Pal & ors.versus Ramlakhan &
anr.F.A.F.O. No.956 of 2013

5. Shriram General Insurance Co. Limited versus
Smt. Hem Lata & ors.

6. Malarvizhi & ors.versus United Insurance Co.
Limited & anr.2020 (1) T.A.C. 328 (S.C.)

7. Gopal, Krishnaji Ketkar versus Mahomed Haji
Latif & ors. AIR 1968 Supreme Court 1413

(Delivered by Hon'ble Rajnish Kumar, J.)
5 All. Oriental Insurance Company Ltd. Vs. Dayawati Gupta & Ors.
1603

1. Heard, Mrs.Pooja Arora,Advocate
holding brief of Sri Subhash Chandra
Gulati,learned counsel for the appellant and
Sri Priyam Mishra,learned counsel for the
claimant-respondents. None appeared on
behalf of other respondents, even in the
revised list and they had also not appeared
on the earlier dates also.

2. The instant first appeal from
order under Section 173 of the Motor
Vehicles Act,1988 has been filed against
the judgment and award dated 06.05.2017
passed
by
Motor
Accidents
Claim
Tribunal/Additional District Judge,Court
No.8, Raebarely in Motor Accident Claim
Petition No.163/16 (Smt. Dayawati Gupta
and others versus Smt. Shashibala Gupta
and Others).

3. Learned counsel for the appellant
submitted that the impugned judgment and
award passed by the tribunal is not
sustainable in the eyes of law for the
reasons that P.W.2 who is an alleged eye
witness, though a member of inquest report
has not informed the number of the
offending vehicle at the time of inquest,
therefore, he cannot be said to be an eye
witness and his presence on spot is doubtful
and either of the persons who were sitting
alongwith the deceased has not been
produced as a witness to prove the accident
and rash and negligent driving. It has
further been submitted that a person sitting
in the vehicle of the deceased could have
been the best witness to prove the accident
and rash and negligent driving in view of
Section 114(g) of the Evidence Act. Thus
the accident cannot be said to have been
proved. She further submitted that despite
any cogent evidence in regard to the
income of the deceased, the income has
been determined as Rs.50,000/-, which
could not have been done. The application
for summoning of the income tax returns of
the appellant and providing copies thereof
was illegaly rejected by the tribunal,
therefore, sufficient opportunity has not
been afforded to the appellant in regard to
determination of the income of the
deceased, whereas the tribunal exercises
the power of a civil court for the purpose of
taking evidence etc. under Section 169(2)
of the Motor Vehicles Act 1988, therefore
it could have been summoned. He relied on
Malarvizhi and others versus United India
Insurance
Company
Limited
and
Another; 2020 (1) T.A.C. 328 (S.C.),
Oriental Insurance Company Limited
versus Premlata Shukla and Others;
2007(3) T.A.C. 11 (S.C.), Gopal, Krishnaji
Ketkar versus Mahomed Haji Latif and
Others; AIR 1968 Supreme Court 1413,
Parashuram Pal and Others versus Ram
Lakhan and Another passed by a Division
Bench of this Court in F.A.F.O. No.956 of
2013 and a Coordinate Bench decision of
this Court in the case of Shriram General
Insurance Company Limited versus Smt.
Hem Lata and Others; 2021 (2) T.A.C.
366(All.)

4. Per contra, learned counsel for
the claimant-respondents submitted that the
impugned judgment and award has rightly
been passed in accordance with law by the
tribunal. There is no illegality or infirmity
in it for the reasons that once an eye
witness was produced, who proved the
accident and nothing could be extracted
from him in the cross examination, which
may doubt his veracity or presence on spot,
merely because a person who was sitting in
the car has not been produced, therefore it
cannot be said that the accident could not
be proved and doubt cannot be raised about
the presence of the eye witness. He further
submitted
that
the
application
for
summoning and providing copies of the
1604 INDIAN LAW REPORTS ALLAHABAD SERIES
income tax returns was moved on the date
of judgment, which was rightly dismissed
by the tribunal. He further submitted that
the accident and rash and negligent driving
of the driver of the offending vehicle was
proved by the claimant-respondents and
nothing could be brought on record
contrary to it. The rash and negligent
driving of the driver of the offending
vehicle is itself proved because there is no
dispute in regard to site plan, according to
which the offending vehicle had dashed the
vehicle of the deceased while it was
coming from the opposite direction after
breaking the divider. He further submitted
that the income of the deceased has rightly
been determined because the copies of the
Form 16 were placed on record, which
shows that the income of the deceased was
much more than the income determined by
the tribunal, which could not be disputed
by the appellants or any contrary evidence
could be placed on record. Thus, the appeal
has been filed on misconceived and
baseless grounds, which is liable to be
dismissed. He relied on Mangla Ram
versus
Oriental
Insurance
Company
Limited & Others; Law Finder Doc Id #
999611 (2018 AIR SC 1900) and Anita
Sharma and Others versus The New India
Assurance
Company
Limited
and
Another; Law Finder Doc Id # 1779856;
(2021 AIR SC 302).

5. Having heard learned counsel for
the parties, I have perused the records.

6. The claim petition was filed by
the claimant-respondent nos.1 to 4 alleging
therein that the husband of the claimantrespondent no.1and father of 2 and 3 and
mother of 4 i.e. the deceased Suresh Kumar
alongwith Smt. Dayawati, Smt. Neelam,
Smt. Kamla Devi and maternal-grand-son
Babu was coming back from his permanent
residence in Village Makdoompur,Police
Station Dalmau, District Raebarely to his
present residence MIG,5/55 Pragatipuram
Colony, Police Station Mill Area, District
Raebarely by Maruti Wagon Car No.U.P.
33 S 4169. As he reached near Chhajlapur
on Luknow-Raebarely Road in front of
house of MLA Sri Ram Lal Akela, Ford
Eco Sport Vehicle No.U.P.33 AA 7077
coming from the opposite direction, which
was being driven rashly and negligently,
breaking the divider came on the wrong
side and dashed the vehicle of the deceased
with great force, on account of which all
the persons in the car suffered serious
injuries. The deceased suffered very serious
injuries, on account of which he died on the
spot. The vehicle was also badly damaged.
The police after taking the possession of
the dead body got the inquest done and
thereafter the post mortem was got done.
The first information report of the accident
was lodged by the brother of the deceased
Dinesh Kumar. The date of birth of the
deceased was 25.02.1967. The father of the
husband of the claimant-respondent no.1
died prior to his death. The deceased was
working in Life Insurance Company on the
post of Chief Insurance Advisor. The age
of the deceased at the time of his death was
49 years and he was earning about
Rs.1,25,190/- per month and accordingly
Rs.15,02,276/- yearly. The deceased used
to spend whole of his income on his
wife,children and mother. In case, he would
have been alive, his income would have
enhanced, therefore, the compensation
claimed by the claimant-respondents may
be awarded.

7. The claim petition was contested
by the defendant nos.2 and 3 i.e.
respondent nos.5 and 6 by filing a common
written statement denying the averments
made in the claim petition, However, it has
5 All. Oriental Insurance Company Ltd. Vs. Dayawati Gupta & Ors.
1605
been
admitted
that
the
defendantrespondent no.5 is the registered owner of
the Eco Sport,Vehicle No.U.P.33 AA 7077
and the defendant-respondent no.6, who is
the grand son of the defendant-respondent
no.5 was the driver at the time of accident.
It has also been stated that he was having a
valid and effective driving license and was
a good driver. The registration and fitness
of the vehicle was valid on the date of
accident. No accident had ever occurred on
account of rash and negligent driving of the
defendant-respondent no.6. The vehicle
was validly insured from the Oriental
Insurance Company, which was effective
also. The driver of the vehicle No.U.P. 33 S
4169 driving, rashly and negligently, came
from the opposite side and dashed into the
divider and hit the vehicle of the answering
defendant-respondents.
The
defendantrespondent no.6 had suffered many injuries,
whereas he was not at fault. The income of
the deceased has been shown exaggerating
it and no certificate of age and income has
been filed. However, in case any liability is
determined by the court, then the same
would be of the Oriental Insurance
Company Ltd. Accordingly, he prayed for
dismissal of the claim petition.

8. The defendant no.3/respondent
no.7 New India Insurance Company
Limited filed a written statement stating
therein that the claimants have not filed
the accident report, medical bill and
vouchers, cash memo, post mortem
report,
first
information
report,site
plan,technical examination report, charge
sheet etc. The driver of the vehicle was
not having a valid and effective driving
license at the time of accident. The
accident had occurred on account of
negligent driving of driver of both the
vehicles. The compensation has been
claimed exaggerating the same. Thus
claim petition is liable to be dismissed
with cost.

9. The defendant no.4/appellant
filed a written statement stating therein
that the accident had occurred on account
of head on collision of Eco Sport vehicle
No. U.P.33 AA 7077 and Wagon-R
vehicle No. U.P. 33 S 4169, in which the
driver of the vehicle No.U.P. 33 S 4169
died. The accident had occurred on
account of negligence and fault of both
the drivers, therefore, the liability of
payment of compensation is of both the
Insurance Company. The insurance of
Vehicle No.U.P.33 AA 7077 on the date
and time of the accident was denied.
However, it was stated that if it is proved
by evidence then only the liability of
payment would occur. On account of
valid driving license of driver of Vehicle
No.U.P. 33 AA 7077, there is no liability
of payment of compensation. It was
further stated that since the registration
etc. of Vehicle No.U.P. 33 AA 7077 was
not valid, therefore, there is no liability of
payment
of
compensation
by
the
defendant no.4/appellant. No papers of
income of the deceased have been filed
and the compensation has been claimed
exaggerating it. Thus claim petition is
liable to be dismissed.

10. On the basis of pleadings of the
parties, 6 issues were framed, which are
extracted herein-below:-

1- D;k fnukad 23-10-2015 dks le; 1000 jkf= dks ;kfpuh dk e`rd ifr Jherh n;korh]
Jherh uhye] Jherh deyk nsoh o ukrh ckcw ds lkFk
vius ewy fuokl xzke ednweiqj Fkkuk MyeÅ ftyk
jk;cjsyh ls viuh xkM+h oSxuvkj la0 ;w0ih0 33 ,l
4169 ls vius orZeku fuokl ,e0vkbZ0th0 5@55
izxfriqje dkyksuh Fkkuk fey ,fj;k ftyk jk;cjsyh
okil vk jgs Fks tSls gh y[kuÅ jk;cjsyh ekxZ ij
Ntykiqj ds ikl fo/kk;d Jh jke yky vdsyk ds घर
1606 INDIAN LAW REPORTS ALLAHABAD SERIES
ds lkeus Fks fd foijhr fn'kk ls ,d QksMZ bdks LiksVZ
la[;k ;w0ih0 33 , , 7077 dk pkyd cgqr rsth o
ykijokghiwoZd ygjkrk gqvk xyr fn'kk es vkdj
mijksDr xkMh esa tksjnkj VDdj ekj fn;k ftlls
;kfpuh ds ifr dks vR;f/kd pksVsa vk;h vkSj mudh
ekSds ij e`R;q gks x;h\

2- D;k e`rd dh nq?kZVuk esa ;ksxnk;h
mis{kh Fkh\

3- D;k iz'uxr okgu nq?kZVuk dh frfFk ij
foi{kh la[;k 4 ds ikl oS/k :i ls chfer Fkk\

4- D;k nq?kZVuk ds le; okgu ds lHkh
izi= oS/k FksA

5- D;k nq?kZVuk ds le; iz'uxr okgu ds
pkyd ds ikl oS/k ,oa izHkkoh pkyu vuqKfIr Fkh\

6- D;k ;kph izfrdj ds :i eas dksbZ
/kujkf'k izkIr djus ds vf/kdkjh gSa ;fn gka rks fdruh
vkSj fdl i{kdkj ls\

11. Thereafter the documentary
evidence was filed by the claimantrespondent nos.1 to 4. However, no
documentary evidence was filed by the
defendants. In oral evidence Akhilesh
Kumar Gupta has been examined as P.W.1,
Dinesh Kumar Gupta as P.W.2 and Sri
Suraj Kumar as P.W.3. No oral evidence
was adduced by the defendants. After
hearing learned counsel for the parties, the
tribunal allowed the claim petition and
awarded a compensation of Rs58,85,000/-
alongwith interest at the rate of 7%per
annum simple interest. It has further been
provided that out of the compensation
awarded,
Smt.
Dayawati
claimantrespondent no.1 will get 60%, the claimantrespondent no.2 Akhilesh Kumar Gupta
and claimant-respondent no.3 Vipul Kumar
Gupta 10% each and claimant-respondent
no.4 Smt. Phool Sundari 20%. Being
aggrieved by the aforesaid judgment and
award this appeal has been filed.

12. The accident occurred on
23.10.2015 at 10:00 in the night, while the
deceased Suresh Kumar was coming with
his family members as disclosed above by
Maruti Wagon-R car in front of house of
MLA Sri Ram Lal Akela near Chhajlapur
on Lucknow-Raebarely road with Ford Eco
Sport coming from the opposite direction,
which dashed the vehicle of the deceased
after breaking the divider and coming on
the wrong side. The deceased died on spot
on account of injuries suffered by him.
Others also suffered injuries in the
accident. They were taken to hospital,
where the deceased was declared dead. An
F.I.R. was lodged on 24.10.2025 at 5:15 at
Police
Station
Industrial
Area,District
Raebareli in regard to the aforesaid incident
at 10:00 in the night on 23.10.2015. The
claim petition was filed with the aforesaid
allegations.

13. The learned tribunal, while
deciding issue nos.1 and 2 'together',
considered the evidence of P.W.1 and
P.W.2. P.W.1 Akhilesh Kumar Gupta, who
is son of the deceased and P.W.2 Dinesh
Kumar Gupta, who is brother of the
deceased proved the accident. Both of them
stated that the incident had occurred on
23.10.2015 at 10:00 in the night at
Raebarely-Lucknow road near Chajlapur in
front of the house of MLA Sri Ram Lal
Akela, while the deceased Suresh Kumar
Gupta driving Wagon-R U.P.33 S 4169
carefully was coming back from his
permanent house at Dalmau,Raebarely to
his house at Pragatipur Raebarely, Police
Station
Mill
Area
alongwith
Smt.
Dayawati,Smt. Neelam,Smt. Kamla Devi
and maternal grand son Babu. When he
reached at the spot in question, a Ford Eco
Sport U.P.33 AA 7077 coming from the
opposite direction, being driven rashly and
negligently by it's driver, breaking the
divider went on to the wrong side and
dashed the vehicle of the deceased. The
deceased suffered very serious injuries in
the accident and died on the spot. P.W.2,
who is resident of Makdoompur, P.S.
5 All. Oriental Insurance Company Ltd. Vs. Dayawati Gupta & Ors.
1607
Dalmau, District Raebarely has stated that
while he was coming back from Pragatipur
to his house on the aforesaid time and
place, he saw that Suresh Kumar Gupta
driving his vehicle Wagon-R U.P. 33 S
4169 carefully was coming on his side on
road. When he reached on the aforesaid
place, Eco Sport vehicle No.U.P.33 AA
7077, coming from the opposite direction
and being driven rashly and negligently by
it's driver had overtaken him and breaking
the divider went on the wrong side and
heavily dashed the vehicle of the deceased
from the front, on account of which Suresh
Kumar
Gupta
suffered
very
serious
injuries and the driver of the Eco Sport
vehicle No.U.P.33 AA 7077 and persons
sitting in the vehicle of the deceased also
suffered serious injuries. He called the
police and ambulance and gave information
about the accident. On information, police
and ambulance came on the spot and
Suresh Kumar Gupta and the injured were
taken to the District Hospital, Raebarely.
His statement was also recorded by the
police. He had lodged the F.I.R. Inquest
and post mortem of the deceased were done
before him. In the cross examination also,
he supported the aforesaid evidence given
in examination-in-chief and nothing could
be extracted from him, which may create
any doubt about his testimony or his
presence on spot at the time of accident.
The evidence of P.W.2 i.e. eye witness is in
consonance with the site plan placed on
record of the trial court, which indicates
that the vehicle No.U.P. 33 S 4169 was
coming on it's left side and the vehicle
No.U.P.33 AA 7077,coming from the
opposite direction, came on the wrong side
after breaking the divider and hit the
vehicle of the deceased. The divider is
shown in site plan. This site plan has not
been disputed by any of the parties. The
technical examination report of both the
vehicles also indicates that the vehicles
were damaged. Thus, this Court does not
find any illegality or error in the finding
recorded by the tribunal after considering
the evidence of P.W.1 and P.W.2, who
have proved the accident.

14. The evidence of the eye-witness
P.W.2 has been disputed on the basis of an
opinion recorded in the inquest report, in
which P.W.2 was also a member. The
opinion recorded is that "Suresh Kumar
Gupta ki Martiu ghatna may aayi choton
key karan hona pratit hota hae, phir bhi
mritu ka sahi karan janney key liye P.M.
kara liya jaye theek rahega". But it cannot
be a ground for disbelieving evidence of an
eye witness because firstly it was only an
opinion and it was only for consent for post
mortem. However, once the appellant relies
on an opinion recorded in copy of inquest
report etc., he cannot dispute other
documents on the ground that they are
photocopies. They appear to be certified
copies. Site plan was also relied heavily at
the time of arguments.

15. Section 114(g) of the Indian
Evidence Act,1872 provides that the Court
may presume the existence of any fact
which it thinks likely to have happened,
regard being had to the common course of
natural events, human conduct and public
and private business, in their relation to the
facts of the particular case. Thereafter in
illustrations in paragraph (g), it has been
provided that the Court may presume that
evidence which could be and is not
produced
would,
if
produced,
be
unfavorable to the person who withholds it.
Learned counsel for the appellant failed to
indicate as to how once an eye witness has
been produced who proved the accident
and rash and negligent driving of the driver
of the vehicle, which is in consonance with
1608 INDIAN LAW REPORTS ALLAHABAD SERIES
the site plan, how non-production of any
person who was sitting in the car would
give power to the court to presume that
his/her non-production is unfavourable to
the claimant-respondents.

16. The Hon'ble Supreme Court, in
the case of Oriental Insurance Company
Ltd.
versus
Premlata
Shukla
and
others(supra), has held that the factum of
an accident could also be proved from the
first information report and once a part of
the contents of the document is admitted in
evidence, the party bringing the same on
record cannot be permitted to turn around
and contend that the other contents
contained in the rest part thereof has not
been proved. Both the parties have relied
thereupon. Once a part of it is relied upon
by both the parties, the learned tribunal
cannot be said to have committed any
illegality in relying upon the other part,
irrespective of the contents of the document
been proved or not. If the contents have
been proved, the question of reliance
thereupon only a part thereof and not upon
the rest, on the technical ground that the
same had not been proved in accordance
with law would not arise.

17. The Hon'ble Supreme Court,
in the case of Mangla Ram versus
Oriental Insurance Company Limited
and others(supra), has held that the key
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 touch stone of
preponderance
of
probability
and
certainly not by standard of proof
beyond reasonable doubt. Suffice it to
observe that the exposition in the
judgments already adverted to by us,
filing of charge sheet against respondent
no.2 prima facie points towards his
complicity
in
driving
the
vehicle
negligently and rashly.

18. The Hon'ble Supreme Court,
in the case of Anita Sharma and others
versus
The
New
India
Assurance
Company Limited and Another(supra),
has
held
that
the
failure
of
the
respondents to cross examine the solitary
eye witness or confront him with their
conversion,
despite
adequate
opportunity, must lead to an inference of
tacit admission on their part.

19. A Division Bench of this
Court, in the case of Parashuram Pal
and Others versus Ramlakhan and
Another(supra), has held that it is not
res-integra that in motor accident claim
petition charge sheet filed by the police
investigating the accident as a crime is
not
substantive
evidence
and
compensation cannot be awarded only
on this basis. The claimants can succeed
only on the basis of substantive evidence
adduced by them before the Motor
Accident Claims Tribunal. It is not
applicable in the present case because in
the present case the accident and rash
and negligent driving has been proved
by an eye witness, which is supported by
document.

20. A Coordinate Bench of this
Court, in the case of Shriram General
Insurance Company Limited versus Smt.
Hem Lata and Others(supra), has held that
in absence of there being any other
independent witness and also failure of the
claimants to examine an injured eye
witness, the appeal deserves to be allowed
because the Court found that the eye
witness P.W.2 could not show as to how
this witness came into contact with
Raghuveer Singh, informant of the case.
5 All. Oriental Insurance Company Ltd. Vs. Dayawati Gupta & Ors.
1609
The said witness admitted that he had
approached
the
police
alongwith
Raghuveer Singh-informant and executed
an affidavit implicating the so called
offending vehicle and he admitted that he
had not noted the number of the offending
vehicle and remembered it only mentally
and when this is read with his submission
that on 07.06.2011 at about 8-9 am, his
mother had informed him death of Vinesh
Kumar, it is evident that Vinesh Kumar
was known to the family else there was no
occasion for his mother to discuss death of
a stranger. Thus the judgment was rendered
in the facts and circumstances of the case.
It is not applicable on the facts and
circumstances of the present case because
in the present case, P.W.2 has proved the
accident and rash and negligent driving of
the driver of the offending vehicle, which is
supported by undisputed documentary
evidence and nothing could be extracted
from him in the cross examination, which
may create any doubt about his veracity
and his presence at the place of accident.

21. So far as contention of learned
counsel for the appellant that any of the
witnesses who were in the vehicle have not
been produced who could have been the best
witness is concerned, this Court is of the view
that the contention of learned counsel for the
appellant is misconceived and not tenable
because the eye witness has been produced
and nothing could be extracted from him,
which may create any doubt about veracity of
his evidence and indicate that he had not seen
the accident. Therefore once an eye witness
has been produced,who proved the accident,
merely because a person who was in the car
has not been produced cannot be a ground for
not believing the testimony of the eye
witness, who was brother of the deceased.
Thus, this Court is of the view that the
aforesaid accident on 23.10.2015 at 10:00
p.m.in the night at the aforesaid place by rash
and negligent driving of the driver of vehicle
No.U.P. 33 AA 7077 and dashing vehicle No.
U.P. 33 S 4169 by going on the wrong side
after breaking the divider has been proved.
Thus the finding recorded by the learned
tribunal in this regard does not suffer from
any illegality or error. Even otherwise it is
recorded in the order dated 02.01.2019 that
learned counsel for the appellant fairly
submitted that in compliance of Court's order
the entire amount has been deposited before
the tribunal and the appellant has challenged
the order of the tribunal on the ground of
quantum.

22.The
learned
tribunal,
while
considering the quantum of compensation, has
recorded that in regard to the income of the
deceased,copies of Form 16 A of 2012-13,1314,14-15 and15-16 have been produced.
P.W.3 Suraj Kumar stated that the income of
any agent is not definite. It used to increase
and decrease as per the work because the work
of an agent is commission based and since the
income tax return have not been filed by the
deceased, therefore, considering the income
claimed by the deceased as Rs1,25,190/-on the
basis of Form 16, which could not be proved
by any evidence, the tribunal determined the
income as Rs.50,000/- per month. Perusal of
the evidence of P.W.3 indicates that he has not
been examined in cross-examination as to how
much work the deceased had and on the said
work how much commission he could have
received. Thus the tribunal determined the
income of the deceased on the basis of
evidence produced before it. Since no contrary
evidence could be produced or shown, this
Court does not find any illegality or error in
the income of the deceased determined by the
tribunal.
23. The tribunal further recorded
that his wife,two sons and mother were
dependant on him, therefore he must have
1610 INDIAN LAW REPORTS ALLAHABAD SERIES
been spending 1/4th part of his income on
himself. Accordingly, after deducting the
same, determined the income and allowed
the compensation. This Court does not find
any illegality or error in the compensation
calculated by the tribunal also and it could
also not be contradicted in any manner.

24. Section 169(2) of the Motor
Vehicles Act 1988 provides that the Claims
Tribunal shall have all the powers of a
Civil Court for the purpose of taking
evidence on oath and of enforcing the
attendance of witnesses and of compelling
the discovery and production of documents
and material objects and for such other
purposes as may be prescribed; and the
Claims Tribunal shall be deemed to be a
Civil Court for all the purposes of section
195 and Chapter XXVI of the Code of
Criminal Procedure, 1973(2 of 1974). The
power of the tribunal as provided under the
statute cannot be disputed but it is to be
examined in accordance with law and
merely because the application moved by
the appellant for summoning and providing
copies of the income tax return on the date
of judgment was dismissed by the tribunal,
it cannot be said that the power has not
been exercised by the tribunal because the
Court has also to see that process of law
may not be misused to delay or stall the
proceedings.

25. The Hon'ble Supreme Court,in
the case of Malarvizhi and Others versus
United Insurance Company Limited and
Another(supra), has held that the tribunal
superimposed a possible value of income
from agricultural land despite a clear
indication in the income tax returns of the
income from agricultural land. This case is
not
applicable
on
the
facts
and
circumstances of the present case as
discussed above.
26. The Hon'ble Supreme Court, in
the case of Gopal, Krishnaji Ketkar versus
Mahomed Haji Latif & Others(supra), has
held that even if the burden of proof does
not lie on a party the Court may draw an
adverse inference if he withholds important
documents in his possession which can
throw light on the facts at issue because
there is a sound practice for those desiring
to rely upon a certain state of facts to
withhold from the Court the best evidence
which is in their possession which could
throw light upon the issues in controversy
and to rely upon the abstract doctrine of
onus of proof. It is not applicable in the
present case because an eye witness has
been produced, who has proved the
accident and income has also been
determined rightly as discussed above.

27.
In
view
of
above
and
considering
the
overall
facts
and
circumstances of the case, this Court does
not find any illegality or error in the
impugned judgment and award passed by
the tribunal. The appeal has been filed on
misconceived and baseless grounds, which
is liable to be dismissed.

28. The appeal is, accordingly,
dismissed. No order as to costs.
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(2025) 5 ILRA 1610
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.05.2025
BEFORE

THE HON'BLE ABDUL MOIN, J.

First Appeal From Order No. 895 of 2016
And
First Appeal From Order No. 896 of 2016

National Insurance Co. Ltd. ...Appellant
Versus
Shiva Vishwakarma Minor ...Respondent