# Ram Dulari v. Smt. Saroj Devi & Anr

- **Citation:** (2023) 11 ILRA 126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** First Appeal From Order No. 535 of 2001
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-dulari-v-smt-saroj-devi-anr-49408
- **Pages:** 12

## Headnote

A.Civil Law - Motor Vehicles Act, 1988-Section
173- The claimant's husband died leaving
behind a family of three dependents, The
deceased was a government servant He was in
receipt of a gross salary of Rs.4578/- per
month-The factum of accident involving the
offending truck is admitted to parties-it was
incumbent upon the owner to have produced
the driver in the witness-box and explained the
accident consistent with absence of any
negligence on his part-The owner never called
her driver to the witness-box and in the absence
of an eye-witness account, the Tribunal, as if it
11 All. Ram Dulari Vs. Smt. Saroj Devi & Anr.
127
were a Civil Court, has declined to accept a case
of negligence, sans ocular or other positive
evidence offered by the claimant to prove it-The
principle of res ipsa loquitur, given the
circumstances of the accident ought to have
been invoked in this case -The negligence,
therefore, has to be presumed on the owner's
part, who has exclusive knowledge of the
circumstances attending the accident through
her driver-The Tribunal has felt no difficulty in
holding that it was the offending truck that
caused the accident- Still, the Tribunal has gone
off course in not holding the owner liable
because there is no evidence in the sense of an
eye-witness account or other evidence aliunde
to prove the offending truck's negligence-The
Tribunal is not a Civil Court in seisen of an
action governed by the Code of Civil Procedure,
1908- The jurisdiction of the Tribunal under the
Act of 1988 is one to hold an inquiry into the
accident and determine just compensation
payable
to
the
injured,
or
the
legal
representatives of the deceased, as the case
may be- it was held that the duties of the
Tribunal while determining a compensation
claim in a motor accident are essentially
inquisitorial; not adversarial. The provisions of
Rule 215 of the U.P. Motor Vehicles Rules, 1998
must also be noticed- If the Tribunal was of
opinion that the FIR shows that the informant
was an eye-witness, the Tribunal was duty
bound to examine him in the exercise of powers
under Rule 215 of the Rules of 1998-Hence, The
Tribunal shall proceed to decide the claim
afresh. (Para 1 to 30)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,489 of 41,141. This is a partial read: ask again with offset=39489 for what follows._

126 INDIAN LAW REPORTS ALLAHABAD SERIES
it would clearly show that the petitioner
was not involved in the alleged occurrence,
is without any merit. According to the
F.I.R., six accused persons were involved in
the crime and a perusal of it shows that the
name of the petitioner is specifically
mentioned by the complainant. Further,
during the course of hearing, it is also not
disputed by learned counsel for the
petitioner that in the statement of injured
Pushpendra recorded under Section 161
Cr.P.C., the petitioner's name is also
mentioned. Concededly, neither there is any
accused by the name of "Fallu" nor any
such
person
was
associated
during
investigation. Admittedly, petitioner is also
known as "Kallu" and his name sounds
phonetically similar, therefore, the said
telephonic information cannot be taken as a
convincing material to hold that the
petitioner was not involved in the crime.
According
to
the
complainant,
the
petitioner being armed with fire arm
weapon, also participated in the alleged
crime.

13.

Besides,
during
the
trial
proceedings, the material witnesses stand
examined before the court, who have been
cross-examined at length also, and a
perusal of their depositions prima facie
indicates the involvement of the petitioner
in the alleged occurrence. Apart from this,
the stand of the petitioner that he was not
present at the place of occurrence is based
upon the call details records, but the same
may not be enough to extend clean chit to
the petitioner, because to prove the plea of
'alibi', the onus would lie upon the accused.
Therefore, the second argument raised by
learned counsel for the petitioner is also
without any merit.

14. Resultantly, in view of above
discussion, this Court has no hesitation in
holding that the evidence recorded during
trial strongly suggests the involvement of
petitioner in the alleged commission of
offences, and the trial court has also
carefully examined the material on record
while passing the impugned order. The
impugned order does not suffer from any
illegality or impropriety, therefore, no
interference is warranted in the revisional
jurisdiction.

15.

The
criminal
revision
is
dismissed.
----------
(2023) 11 ILRA 126
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

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

First Appeal From Order No. 535 of 2001

Ram Dulari ...Appellant
Versus
Smt. Saroj Devi & Anr. ...Respondents

Counsel for the Appellant:
Santosh Tripathi, Amit Kumar Singh, Ram
Singh

Counsel for the Respondents:
Arun Kumar Shukla

A.Civil Law - Motor Vehicles Act, 1988-Section
173- The claimant's husband died leaving
behind a family of three dependents, The
deceased was a government servant He was in
receipt of a gross salary of Rs.4578/- per
month-The factum of accident involving the
offending truck is admitted to parties-it was
incumbent upon the owner to have produced
the driver in the witness-box and explained the
accident consistent with absence of any
negligence on his part-The owner never called
her driver to the witness-box and in the absence
of an eye-witness account, the Tribunal, as if it
11 All. Ram Dulari Vs. Smt. Saroj Devi & Anr.
127
were a Civil Court, has declined to accept a case
of negligence, sans ocular or other positive
evidence offered by the claimant to prove it-The
principle of res ipsa loquitur, given the
circumstances of the accident ought to have
been invoked in this case -The negligence,
therefore, has to be presumed on the owner's
part, who has exclusive knowledge of the
circumstances attending the accident through
her driver-The Tribunal has felt no difficulty in
holding that it was the offending truck that
caused the accident- Still, the Tribunal has gone
off course in not holding the owner liable
because there is no evidence in the sense of an
eye-witness account or other evidence aliunde
to prove the offending truck's negligence-The
Tribunal is not a Civil Court in seisen of an
action governed by the Code of Civil Procedure,
1908- The jurisdiction of the Tribunal under the
Act of 1988 is one to hold an inquiry into the
accident and determine just compensation
payable
to
the
injured,
or
the
legal
representatives of the deceased, as the case
may be- it was held that the duties of the
Tribunal while determining a compensation
claim in a motor accident are essentially
inquisitorial; not adversarial. The provisions of
Rule 215 of the U.P. Motor Vehicles Rules, 1998
must also be noticed- If the Tribunal was of
opinion that the FIR shows that the informant
was an eye-witness, the Tribunal was duty
bound to examine him in the exercise of powers
under Rule 215 of the Rules of 1998-Hence, The
Tribunal shall proceed to decide the claim
afresh. (Para 1 to 30)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Km. Jyoti Tripathi & ors. Vs Devendra Singh
Yadav & ors., AHC 202049/2023

2. Srikrishna Kant Singh Vs Sri. Parameswar
Achutanan Nair & ors. (2019) 4 TAC 920 : 2018
SCC OnLine Cal 5308

3. Asha Devi & ors. Vs Asst. Dir. St. Ins. &
Provident Fund Deptt & ors. (2021) 4 TAC 8

4. Basthi Kasim Saheb (dead) by LRs Vs Mysore
SRTC & ors. (1991) 1 SCC 298
(Delivered by Hon'ble J.J. Munir, J.)

1. This claimant's appeal under
Section 173 of the Motor Vehicles Act,
1988 is directed against the judgment and
award of Mr. Sarvat Ali Khan, the Motor
Accident Claims Tribunal/ the Additional
District Judge, Court No.1, Allahabad dated
24th February, 2001, declining the claim
under Section 166 of the Act last mentioned
and awarding for 'no fault' liability alone.

2. The facts giving rise to this appeal
make a brief count.

3. On the 16th of June, 1997 in the
morning hours, the claimant's husband,
Ramroop was proceeding from his Village
to Atrampur Post Office in order to
withdraw
and
deposit
money.
After
finishing his work, he was proceeding to
Post Office Senghar when at about 11.30
a.m., Truck No. UP-70H-9920, driven at a
high speed, proceeding from the Allahabad
end of the road, approached. The driver
operating the vehicle negligently hit the
deceased's bicycle on the rear side,
crushing him under its wheels. The
accident is said to have happened in front
of one Satya Narain's house, the Local
Sarpanch. The truck escaped towards
Pratapgarh.
Ramroop,
the
claimant's
husband died on the spot. He left behind
him a family of three dependents, to wit,
his widow Smt. Ram Dulari and two
unmarried daughters, Asha Devi and
Sangeeta Devi, aged 18 and 15 years in that
order. The deceased was a government
servant, a Grih Darshak, posted at the
Community Health Centre, Karchhana,
Allahabad. He was in receipt of a gross
salary of Rs.4578/- per mensem and a net
of Rs.4398/-. The deductions of Rs.180/-
were beneficial, being those towards his
contributions to the general provident fund
128 INDIAN LAW REPORTS ALLAHABAD SERIES
account and group insurance. The claimant,
accordingly, demanded for herself and the
two other dependents of the deceased, a
total
compensation
in
the
sum
of
Rs.5,65,000/-.

4. The claimant-appellant, who has
instituted this claim petition, unless the
context requires an individual or different
reference, shall hereinafter be called 'the
claimant'.

5. The truck bearing Registration No.
UP-70H-9920, which caused the accident,
is owned by one Smt. Saroj Devi. She has
been impleaded as opposite party No.1 to
the claim petition and respondent No.1 to
this appeal. She would hereinafter be
referred to as 'the owner', unless the
context requires an individual or different
reference.

6.
 The
New
India Assurance
Company Limited, Allahabad are the
insurers of the offending truck. They are
impleaded as opposite party No.1 to the
claim petition and respondent No.2 to this
appeal. They will, hereinafter, be referred
to as 'the Insurers'.

7. A written statement was filed on
behalf of the owner, where in para-wise
reply to the claim petition, there is a
general denial, except the fact that the
ownership of the offending vehicle is
acknowledged. In the additional pleas, the
owner has averred that the offending truck
is insured with the Insurers vide Policy No.
3131422000550
21/361,
valid
from
26.02.1997 to 25.02.1998. It is the owner's
case that the offending truck was being
driven by one Mehtab Khan, who held a
valid driving licence. The Police have
incorrectly shown the driver to be one
Durga
Prasad
Tiwari,
who
has
no
connection with the owner. According to
her, the Police have filed a charge-sheet
against a driver on mistaken identity. The
owner has also denied the accident.

8. In the written statement filed on
behalf of the Insurers, there is a general
denial of the assertions and in the
additional pleas it is said that it is incorrect
to assert that the deceased died of the
injuries sustained in the alleged accident. It
is also denied that the accident was caused
by the offending truck. There is also a
denial of the fact that the accident took
place due to rash and negligent driving by
the driver of the offending truck. The
identity of the claimants mentioned in the
petition as dependents of the deceased is
denied as well as the deceased's income or
the post that he held at the time of his
demise. There is then an averment that in
the absence of complete particulars of the
insurance policy, it is denied at the stage of
pleadings that the offending truck was
insured by the Insurers. If, however, the
insurance policy, produced by the owner or
the claimant at any subsequent stage, shows
the Insurers to be the ones, who have issued
the policy, they reserve their right to file an
additional written statement. The fact that
the offending truck was driven by a man
duly licensed to drive it was denied, citing
want of knowledge. The owner was put to
strict proof of the fact. The Insurers also
availed of the plea that their liability was
subject to the provisions of Section
64(v)(b) of the Insurance Act.

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

"(1) Whether on 16.06.1997 at
about 11.30 in the morning hours, near
Police
Station
Nawabganj, Allahabad,
11 All. Ram Dulari Vs. Smt. Saroj Devi & Anr.
129
within the local limits of Police Station
Nawabganj, Truck No. UP-70H-9920, on
account of its driver driving it at a high
speed and negligently, caused accident,
where the deceased Ramroop sustained
grievous injuries, resulting in his death on
the spot?

(2) Whether the driver of Truck
No. UP-70H-9920, at the time of the
aforesaid accident, held a valid driving
licence?

(3) Whether at the time of the
accident, Truck No. UP-70H-9920 was
validly insured with opposite party No.2
and other papers of the truck were valid? If
yes, its effect?

(4) Whether the claimant is
entitled to compensation on account of the
death that happened in the accident? If yes,
how much and from which opposite
party?"

10. The claimant appeared in the
witness-box herself as PW-1 and testified.
In addition, documentary evidence was also
produced. Vide list 29-Ga, a certificate of
heirs relating to the deceased and a salary
certificate in original issued by the
Superintendent
and
In-charge
Officer,
Community Health Centre, Karchhana,
Allahabad were filed. A list, paper No.31Ga was filed on behalf of the claimant
carrying a certified copy of the FIR, a
certified copy of the charge-sheet, a
certified copy of the postmortem report
relating to the deceased, another salary
certificate in original, paper No.35-Ga, a
photostat copy of the deceased's High
School certificate issued by the U.P.
Board of High School and Intermediate
Education and a certified copy of the siteplan.

11. The owner along with a list 17-C
filed two documents, a photostat copy of
the insurance policy and a photostat copy
of the driving licence relating to one
Mehtab Khan.

12. The Tribunal in returning its
finding on Issue No.1 held that accident
involving the offending truck is proved,
leading to his death on the spot, but in the
absence of evidence, it could not be
proved that the offending truck was being
driven at a high speed and negligently.

13. Issue No.2 has been decided in
favour of the claimant and against the
Insurers holding that the driver of the
offending truck had a valid driving
licence.

14. Issue No.3 was also answered in
favour of the claimant and against the
Insurers holding that on the date of the
accident, the offending truck was validly
insured with the Insurers.

15. So far as Issue No.4 is
concerned, a compensation of Rs.50,000/-
was awarded to the claimants as no fault
liability, because of the Tribunal's finding
on Issue No.1 that negligence of the
offending truck was not proved in the
accident, so as to make out a case under
Section 166 of the Motor Vehicles Act,
1988 (for short, 'the Act of 1988').

16. Heard Mr. Ram Singh, learned
Counsel for the claimant and Mr. Arun
Kumar Shukla, learned Counsel appearing
on behalf of the Insurers. No one appears
on behalf of the owner.

17. So far as the factum of the
accident and involvement of the offending
truck is concerned, the same is proved
because during hearing before the Tribunal,
the learned Counsel representing the owner,
made a statement admitting the accident
130 INDIAN LAW REPORTS ALLAHABAD SERIES
involving her vehicle. The Police after
investigation also have charge-sheeted the
driver of the offending truck in the relative
crime vide charge-sheet dated 14.09.1997,
albeit finding that the driver of the
offending truck was one Durga Prasad
Tiwari son of Ram Awadh Tiwari, whereas
according to the claimant, the driver of the
offending truck was a certain Mehtab
Khan. The owner has filed the copy of a
driving licence of Mehtab Khan on record
acknowledging him to be the driver of the
offending truck. The Police, however, have
charge-sheeted a different man as the driver
of the offending truck, but they too found
that it was Truck No. UP-70H-9920, the
owner's vehicle that caused the accident.

18. Whoever was the driver of the
offending truck, it is certainly within the
knowledge of the owner and the driver as
to what was the cause of the accident, and,
a fortiori the negligence, if any, of the
driver involved, assuming that there was no
eye-witness of the accident. Of whatever
evidence
is
forthcoming,
may
be
circumstantial, points to the negligence of
the offending truck. The chief amongst
these circumstances is the fact that the
deceased was hit from the rear side by the
offending truck. A look at the site plan
drawn up by the Police, part of the chargesheet, indicates that the truck driver would
have seen the cyclist from a distance
sufficient to brake and avert the accident.
The site plan shows the place of accident as
'A'. It is slightly moved from the left but
not entirely in the centre of the road. The
road shown in the site plan is straight and it
does not suggest any kind of a sudden
bend. To the right of 'A' too, there was
sufficient space for the truck to have passed
by safely overtaking the deceased. The site
plan is strongly suggestive of the offending
truck driver's negligence.

19. Whatever happened on the fateful
day
would
certainly
be
within
the
knowledge of the owner and her driver,
assuming that there was no other eyewitness. There being circumstances to
suggest that the offending truck was
negligent, burden would lie upon the owner
to offer evidence showing that there was no
negligence on the driver's part. In this
context, the principle of res ipsa loquitur
has been resorted to in case of motor
accidents, where an accident happened, the
cause whereof is within the offending
party's knowledge. The principle was
acknowledged by the Supreme Court in the
case of a motor accident of a different kind,
that is to say, the owner's truck catching fire
and resulting in one of the employees'
death, when he jumped off truck to save
himself. This was the principle in Shyam
Sunder
and
others
v.
State
of
Rajasthan, (1974) 1 SCC 690, where it
was held:

"9.
The
main
point
for
consideration in this appeal is, whether
the fact that the truck caught fire is
evidence of negligence on the part of the
driver in the course of his employment.
The maxim res ipsa loquitur is resorted to
when an accident is shown to have
occurred and the cause of the accident is
primarily within the knowledge of the
defendant. The mere fact that the cause of
the accident is unknown does not prevent
the
plaintiff
from
recovering
the
damages, if the proper inference to be
drawn from the circumstances which are
known is that it was caused by the
negligence of the defendant. The fact of the
accident
may,
sometimes,
constitute
evidence of negligence and then the maxim
res ipsa loquitur applies.

10. The maxim is stated in its
classic form by Erle, C.J.: [Scott v. London
11 All. Ram Dulari Vs. Smt. Saroj Devi & Anr.
131
& St. Katherine Docks, (1865) 3 H&C 596,
601]

"... where the thing is shown to be
under the management of the defendant or
his servants, and the accident is such as in
the ordinary course of things does not
happen if those who have the management
use proper care, it affords reasonable
evidence, in the absence of explanation by
the defendants, that the accident arose from
want of care."

The maxim does not embody any
rule of substantive law nor a rule of
evidence. It is perhaps not a rule of any
kind but simply the caption to an argument
on the evidence. Lord Shaw remarked that
if the phrase had not been in Latin, nobody
would have called it a principle [Ballard v.
North British Railway Co., 1923 SC (HL)
43] . The maxim is only a convenient label
to apply to a set of circumstances in which
the plaintiff proves a case so as to call for a
rebuttal from the defendant, without having
to allege and prove any specific act or
omission on the part of the defendant. The
principal function of the maxim is to
prevent injustice which would result if a
plaintiff were invariably compelled to
prove the precise cause of the accident and
the defendant responsible for it even when
the facts bearing on these matters are at the
outset unknown to him and often within the
knowledge of the defendant. But though the
parties' relative access to evidence is an
influential factor, it is not controlling. Thus,
the fact that the defendant is as much at a
loss to explain the accident or himself died
in it, does not preclude an adverse
inference against him, if the odds otherwise
point to his negligence (see John G.
Fleming, The Law of Torts, 4th Edn., p.
264). The mere happening of the accident
may be more consistent with the negligence
on the part of the defendant than with other
causes.
The
maxim
is
based
as
commonsense and its purpose is to do
justice when the facts bearing on causation
and on the care exercised by defendant are
at the outset unknown to the plaintiff and
are or ought to be within the knowledge of
the defendant (see Barkway v. S. Wales
Transo [(1950) 1 All ER 392, 399] ).

11. The plaintiff merely proves a
result, not any particular act or omission
producing the result. If the result, in the
circumstances in which he proves it, makes
it more probable than not that it was caused
by the negligence of the defendants, the
doctrine of res ipsa loquitur is said to
apply, and the plaintiff will be entitled to
succeed unless the defendant by evidence
rebuts that probability.

12. The answer needed by the
defendant to meet the plaintiff's case may
take alternative forms. Firstly, it may
consist in a positive explanation by the
defendant of how the accident did in fact
occur, of such a kind as to exonerate the
defendant from any charge of negligence.

13. It should be noticed that the
defendant does not advance his case by
inventing fanciful theories, unsupported by
evidence, of how the event might have
occurred. The whole inquiry is concerned
with probabilities, and facts are required,
not mere conjecture unsupported by facts.
As Lord Macmillan said in his dissenting
judgment in Jones v. Great Western [(1930)
47 PLR 39] :

"The
dividing
line
between
conjecture and inference is often a very
difficult one to draw. A conjecture may be
plausible, but it is of no legal value, for its
essence is that it is a mere guess. An
inference, in the legal sense, on the other
hand, is a deduction from the evidence, and
if it is a reasonable deduction it may have
the validity of legal proof. The attribution,
of an occurrence to a cause is, I take it,
always a matter of inference. The cogency
132 INDIAN LAW REPORTS ALLAHABAD SERIES
of a legal inference of causation may vary
in degree between practical certainty and
reasonable
probability.
Where
the
coincidence of cause and effect is not a
matter of actual observation there is
necessarily a hiatus in the direct evidence,
but this may be legitimately bridged by an
inference from the facts actually observed
and proved."

In other words, an inference is a
deduction from established facts and an
assumption or a guess is something quite
different but not necessarily related to
established facts.

14.
Alternatively,
in
those
instances where the defendant is unable to
explain the accident, it is incumbent upon
him to advance positive proof that he had
taken
all
reasonable
steps
to
avert
foreseeable harm.

15. Res ipsa loquitur is an
immensely important vehicle for importing
strict liability into negligence cases. In
practice, there are many cases where res
ipsa loquitur is properly invoked in which
the
defendant
is
unable
to
show
affirmatively either that he took all
reasonable precautions to avoid injury or
that the particular cause of the injury was
not associated with negligence on his part.
Industrial and traffic accidents and injuries
caused by defective merchandise are so
frequently of this type that the theoretical
limitations
of the
maxim
are
quite
overshadowed by its practical significance [
Millner: "Negligence in Modern Law",
92]."

20. The aforesaid decision of the
Supreme Court was followed by their
Lordships in Basthi Kasim Saheb (dead)
by LRs v. Mysore State Road Transport
Corporation and others, (1991) 1 SCC
298. This was a case under the Motor
Vehicles Act, 1939. It was a case where the
motor accident again did not involve a
collision. It was a case where the
Corporation's bus, proceeding on a certain
road, moved to the right to avoid a bullock
cart standing unattended. Its wheels left the
metalled portion of the road and sank in the
muddy soil there, leading the bus to turn
turtle. The claimant, who was a passenger
on board bus, sustained serious injuries,
requiring a long period of hospitalization.
The Motor Accident Claims Tribunal
accepted it to be a case of rash and
negligent act by the bus driver and decreed
the claim for Rs.35,000/-. The High Court
on appeal by the Corporation thought that
there is no negligence of the driver
involved and it was just an accident. The
claim was dismissed by the High Court. On
further appeal by Special Leave to their
Lordships
of
the
Supreme
Court,
circumstances and the evidence were
noticed, that did seem to show that the
driver had not slowed up sufficiently to
avoid the bullock cart and risk wheels of
the bus from sinking in the muddy portion
of the road. The Court looked into the site
plan drawn up by the Police to gauge the
width of the road and other necessary
circumstances. No doubt, in that case, there
was oral testimony of the claimant and
other witnesses, but the cause of the
accident
was
apparently
beyond
explanation by ocular testimony offered by
the claimant. It is in those circumstances
that it was observed in Basthi Kasim
Saheb (supra):

"8. The evidence in the case
indicates that there was no traffic on the
road at the time of the accident. No
untoward incident took place like sudden
failure of the brakes or an unexpected stray
cattle coming in front of the bus and still
the vehicle got into trouble. In absence of
any unexpected development it was for the
11 All. Ram Dulari Vs. Smt. Saroj Devi & Anr.
133
driver to have explained how this happened
and
there
is
no
such
explanation
forthcoming. In such a situation the
principle of res ipsa loquitur applies. The
petitioner, in the circumstances, could not
have proved the actual cause of the
accident, and on the face of it, it was so
improbable that such an accident could
have happened without the negligence of
the driver, that the court should presume
such negligence without further evidence.
The burden in such a situation is on the
defendant to show that the driver was not
negligent and that the accident might, more
probably, have happened in a manner
which did not connote negligence on his
part, but the defence has failed to produce
any evidence to support such a possibility.
We, therefore, agree with the finding of the
trial court on this issue and set aside the
judgment of the High Court."

21. The principle was again invoked
by the Supreme Court in Asha Devi and
others
v.
Assistant
Director,
State
Insurance
and
Provident
Fund
Department and others, 2021 (4) TAC 8,
which is a case closer on facts to the one at
hand. The facts relevant to the issue, the
proceedings before the Tribunal and the
High Court, and the holding of their
Lordships
are
encapsuled
in
the
observations of their Lordships in Asha
Devi (supra), which read:

"2. The challenge in the present
appeals is to an order passed by the High
Court of Judicature for Rajasthan at Jaipur
Bench, wherein the appeal filed by the
Insurance Company was allowed and the
claim petition filed Under Section 166 of
the
Motor Vehicles Act,
1988
was
dismissed. The reason for dismissing the
claim application was that the wife of the
deceased had not deposed regarding the
manner of accident as she was not the eye
witness. It was thus held that the accident is
not proved to be on account of negligent
driving of tractor by its driver.

3. We find that the reasoning
given by the High Court is patently
erroneous. The deceased-Ummed Singh
was working as a cleanliness employee
with the Municipal Council, Beawar. He
had gone alongwith the tractor to pick up
the garbage. The wife of the deceased
appeared as her own witness and produced
certain documents to prove income of the
deceased. On behalf of the Respondents, an
employee of the Insurance Company was
produced as NAW-1 Akhil Ahmad and
NAW-2
Tarachand
Sharma.
After
considering the evidence on record, the
learned Motor Accidents Claims Tribunal
found that the deceased was an employee
of Municipal Council drawing a salary of `
13,016/- per month and was of 46 years of
age.
The
Tribunal
assessed
the
compensation as ` 20,14,734/- based upon
the last drawn salary and future prospects.
The Tribunal also granted simple interest @
6% per annum.

4. The deceased-Ummed Singh
was an employee of the Municipal Council.
As per the Appellant, the accident occurred
due to the negligent driving of the Tractor.
However, the driver of the tractor namely,
Hariprakash was not produced as a witness.
He was the witness who could depose in
respect of the manner of accident and to
prove that he was not negligent in driving
tractor. The doctrine of res ipsa loquitur
will come into play as the Respondents
have failed to discharge onus on them to
prove that the accident was not on account
of any negligent driving of the Tractor. This
Court in Shyam Sunder v. State of
Rajasthan, (1974) 1 S.C.C. 690, held that
the maxim res ipsa loquitur is resorted to
when an accident is shown to have
134 INDIAN LAW REPORTS ALLAHABAD SERIES
occurred and the cause of the accident is
primarily within the knowledge of the
Defendant."

22. The factum of accident involving
the offending truck is admitted to parties.
Negligence, as noticed hereinabove, does
appear to be there on part of the driver of
the offending truck. In these circumstances,
it was incumbent upon the owner to have
produced the driver in the witness-box and
explained the accident consistent with
absence of any negligence on his part. Else,
the owner would have to offer evidence
aliunde, that would include the driver's
testimony as well to prove that the driver
had taken all reasonable care to avert the
accident, but still it happened. Nothing of
this kind has been done. The owner never
called her driver to the witness-box and in
the absence of an eye-witness account, the
Tribunal, as if it were a Civil Court, has
declined to accept a case of negligence,
sans ocular or other positive evidence
offered by the claimant to prove it. The
principle of res ipsa loquitur, given the
circumstances of the accident ought to have
been invoked in this case and this Court is
of opinion that it is attracted. It was for the
owner to have either explained the accident
or offered positive proof of absence of
negligence on her driver's part, that has not
been done. The negligence, therefore, has
to be presumed on the owner's part, who
has
exclusive
knowledge
of
the
circumstances
attending
the
accident
through her driver.

23. There is another vantage of
looking at the issue. The factum of accident
is not denied and so also the involvement
of the offending truck. There are police
papers relating to the crime, which show
the involvement of the offending truck
running over the ill-fated bicycle that the
deceased was riding. There is no doubt a
discrepancy between the identity of the
driver that the owner claims and the one the
Police
have
found
on
investigation.
However, both are unanimous that the
accident was caused by the offending truck.
Whoever drove the truck, apart from its
relevance
to
determine
the
Insurers'
liability, does not matter much. This is so
because the liability is that of the owner
vicariously through his driver, who was
driving the offending truck at the time of
the accident in course of employment. The
Tribunal has felt no difficulty in holding
that it was the offending truck that caused
the accident. Still, the Tribunal has gone off
course in not holding the owner liable
because there is no evidence in the sense of
an eye-witness account or other evidence
aliunde to prove the offending truck's
negligence.

24. This would have been the correct
approach if the Tribunal were a Civil Court
trying a suit, but the Tribunal is not a Civil
Court in seisen of an action governed by
the Code of Civil Procedure, 1908. The
jurisdiction of the Tribunal under the Act of
1988 is one to hold an inquiry into the
accident and determine just compensation
payable to the injured, or the legal
representatives of the deceased, as the case
may be. In this connection, it would be
apposite to refer to the provisions of
Sections 168 and 169 of the Act of 1988.
These provide:

"168. Award of the Claims
Tribunal.-(1) On receipt of an application
for compensation made under section 166,
the Claims Tribunal shall, after giving
notice of the application to the insurer and
after giving the parties (including the
insurer) an opportunity of being heard, hold
an inquiry into the claim or, as the case
11 All. Ram Dulari Vs. Smt. Saroj Devi & Anr.
135
may be, each of the claims and, subject to
the provisions of section 162 may make an
award
determining
the
amount
of
compensation which appears to it to be just
and specifying the person or persons to
whom compensation shall be paid and in
making the award the Claims Tribunal shall
specify the amount which shall be paid by
the insurer or owner or driver of the vehicle
involved in the accident or by all or any of
them, as the case may be:

Provided
that
where
such
application
makes
a
claim
for
compensation under section 140 in respect
of the death or permanent disablement of
any person, such claim and any other claim
(whether made in such application or
otherwise) for compensation in respect of
such death or permanent disablement shall
be disposed of in accordance with the
provisions of Chapter X.

(2) The Claims Tribunal shall
arrange to deliver copies of the award to
the parties concerned

expeditiously and in any case
within a period of fifteen days from the
date of the award.

(3) When an award is made under
this section, the person who is required to
pay any amount in terms of such award
shall, within thirty days of the date of
announcing the award by the Claims
Tribunal,
deposit
the
entire
amount
awarded in such manner as the Claims
Tribunal may direct.

169. Procedure and powers of
Claims Tribunals.-(1) In holding any
inquiry under section 168, the Claims
Tribunal may, subject to any rules that may
be made in this behalf, follow such
summary procedure as it thinks fit.

(2) 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).

(3) Subject to any rules that may
be made in this behalf, the Claims Tribunal
may, for the purpose of adjudicating upon
any claim for compensation, choose one or
more persons possessing special knowledge
of any matter relevant to the inquiry to
assist it in holding the inquiry."

25. The issue was considered by me
in Km. Jyoti Tripathi and others v.
Devendra Singh Yadav and others,
Neutral
Citation
No.
-
2023:AHC:202049. After an elaborate
reference to a Bench decision of the
Calcutta High Court in Sri. Srikrishna
Kant
Singh
v.
Sri.
Parameswar
Achutanan Nair and others, 2019 (4)
TAC 920 : 2018 SCC OnLine Cal 5308, it
was held that the duties of the Tribunal
while determining a compensation claim in
a
motor
accident
are
essentially
inquisitorial;
not
adversarial.
The
provisions of Rule 215 of the U.P. Motor
Vehicles Rules, 1998 (for short, 'the Rules
of 1998') must also be noticed. Rule 215 of
the Rules of 1998 reads:

"215. Power of examination.-
The 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."

26. If the Tribunal had reminded itself
of its duties to hold an inquiry in order to
determine
the
just
compensation
as
136 INDIAN LAW REPORTS ALLAHABAD SERIES
envisaged under Sections 168 and 169 of
the Act of 1988, instead of the trying the
claim as if it were a suit before a Court of
civil jurisdiction, the Tribunal would not
have held itself back from summoning
necessary witnesses and other witness to
pass a just award. Since the Tribunal
thought of itself as a Court of civil
jurisdiction
trying
an
action,
it
answered the issue of negligence
against the claimant on ground that no
eye-witness of the accident or other
evidence aliunde was produced that
might establish the offending truck's
negligence. And, to think that the
Tribunal adopted this approach though
the factum of accident involving the
offending truck was not in dispute,
certainly
makes
the
Tribunal's
determination on the issue flawed,
given the nature of its inquisitorial
function. The Tribunal has remarked
in the judgment that the FIR was
lodged by the deceased's brother
Nanku Lal and the report gives an
impression as if the informant was an
eye-witness.

27.

With
this
remark,
the
Tribunal has observed that no such
material has been produced, on the
basis of which, it may be impossible
to
infer
that
during
police
investigation, some other eye-witness
of the accident was present. The
Tribunal has then remarked that in the
aforesaid circumstances, it is not
possible to hold that the offending
truck was being driven at a high speed
or
negligently.
In
the
aforesaid
conclusions, the Tribunal has again
forsaken its role that is primarily
inquisitorial. If the Tribunal was of
opinion that the FIR shows that the
informant, Nanku Ram was an eyewitness, the Tribunal was duty bound
to examine him in the exercise of
powers under Rule 215 of the Rules of
1998. It hardly needs be gainsaid that
by the time the Tribunal heard and
decided the claim petition, the Rules
of 1998 had come into force in Uttar
Pradesh.

28. In the opinion of this Court,
therefore, the conclusions of the
Tribunal on Issue No.1 are patently
flawed.

29.

In
the
totality
of
circumstances, this matter ought to go
back to the Tribunal, that has now
jurisdiction to decide a motor accident
claim under the Act of 1988 for
decision afresh. However, the findings
of
the
Tribunal
carried
in
the
impugned judgment and award on
Issues Nos.2 and 3 are not required to
be disturbed and these are affirmed.
The Tribunal shall proceed to decide
the claim afresh with reference to
Issues Nos.1 and 4. For the purpose,
the evidence on record shall be read
and such other evidence would be
called
as
the
Tribunal
considers
expedient.

30. In the circumstances, this
appeal succeeds and is allowed in
part. The impugned judgment and
award passed by the Motor Accident
Claims Tribunal/ Additiional District
Judge, Court No.1, Allahabad dated
24th February, 2001 is set aside. The
claim petition is restored to the file of
the Motor Accident Claims Tribunal
that has now jurisdiction in the matter,
which shall proceed to hear and
decide it afresh in accordance with
law within six months of the date of
11 All. Salik Mukhtar & Ors. Vs. M/S. M.M.I. Tabacco Pvt. Ltd. & Ors.
137
receipt of a copy of this judgment.
There shall be no order as to costs.
----------
(2023) 11 ILRA 137
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal From Order No. 2170 of 2022

Salik Mukhtar & Ors. ...Appellants
Versus
M/S. M.M.I. Tabacco Pvt. Ltd. & Ors.
 ...Respondents

Counsel for the Appellants:
Sri S.M. Iqbal Hasan, Sri Raghav Garg, Sri
Tarique Quasimuddin, Sri Anurag Khanna
(Sr. Advocate)

Counsel for the Respondents:
Sri Mohd. Waseem, Sri Arvind Srivastava,
Sri Ravi Kant (Sr. Advocate)

A. Civil Law - Trade Marks Act,1999-Sections 29,
124, 134 & 135 - Copyrights Act,1956-Section
62-Infringement of trademark-Interim injunctionValidity- In the present case, the district court has
recorded cogent findings on all the three ingredients by
observing that the registered trademark of the plaintiffrespondents is valid upto 15.01.2024 and that the
defendant-appellants have failed to establish any
registered trademark or copyright with them. The court
below has also observed that any rights flowing from
Sri Subedar would be of no consequence as,
admittedly, Subedar had retired from firm 'Musa and
Sons' with effect from 01.04.1999. The court has
further observed that any activity of manufacturing and
sale of product which is deceptively similar with 'Musa
Ka Gul Super' would be contrary to law. Regarding
pecuniary and territorial jurisdiction of the district court,
it has been observed by the court below that at the
time of registration of the suit, the pecuniary
jurisdiction was found to have vested in the court and
the said issue along with an issue of territorial
jurisdiction would be decided after framing the issues
in the suit.