# Rinki Devi & Ors. /Claimants v. Jamuna Prasad & Ors

- **Citation:** (2019) 3 ILRA 1167
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-05
- **Case number:** Order Nos. 2911 of 2007, 2912 of 2007
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rinki-devi-ors-claimants-v-jamuna-prasad-ors-44641
- **Pages:** 15

## Headnote

1168 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law-Motor Vehicle Act, 1988 -
Uttar Pradesh Motor Vehicles Rules, 1998 -
Motor Accident Claim Tribunal - Nature of
proof
required
-
Preponderance
of
probability - Prima facie evidence

Held:- Strict proof of evidence is not required
to be applied either in determining the
negligence of driver or involvement of
offending vehicle. The standard of judging the
evidence, required in accident claim case, is
preponderance of probability. In such case,
only prima facie evidence involving the alleged
vehicle is required. It has to be seen whether,
or not there is a prima facie evidence available
on record, whereby it can be held that the
alleged accident occurred. (Para 15,16)

B. Civil Law-Motor Vehicle Act, 1988 -
Delayed FIR - Reliable Eye witness

Held: - It is settled principle of law that if the
presence of eye witness at the place of
occurrence is proved and his statement is
reliable; delay in lodging F.I.R; any infirmity in
police papers; even any defect in medical
evidence; and also non-production of other
eye witnesses will be immaterial in evaluation
of evidence of the said eye witness.(Para 18)

C. Civil Law-Motor Vehicle Act, 1988 -
Testimony of Relative/close witness -
cannot be disbelieved

Held:- It is settled principle of law that only
on the ground that the witnesses are relatives
of
the
deceased
or
informant,
their
testimonies cannot be disbelieved. If it is
alleged by the opposite parties i.e driver,
owner and insurer of the offending vehicle it
must be proved by cogent evidence regarding
the non-involvement of their vehicle, where it
has been proved by claimants that death of
deceased was caused by the offending
vehicle. (Para 21)

D. Civil Law-Motor Vehicle Act, 1988 -
Just Compensation - Various points that
are essential for determination of just
compensation are (a) deduction towards
personal
and
living
expenses
to
determine multiplicand; (b) selection of
multiplier depending upon age of the
deceased;
(c)
basis
for
applying
multiplier as age of the deceased; (d)
compensation
permissible
for
conventional head for example loss of
state, loss of consortium and funeral
expenses; (e) addition of income as a
future prospect for both whether the
deceased was a permanent employee or
self employed person. (Para 34)

First Appeal allowed. (E-5)

List of cases cited: -

## Text

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3 All. Rinki Devi & Ors. Vs. Jamuna Prasad & Ors.
1167
deceased
while
awarding
the
"just
compensation".

19. The evidence, on record, clearly
establishes that the deceased used to earn
Rs. 3,000/- per month. Thus, on the basis
of the judgement of Pranay Sethi
(supra), I deem it appropriate that an
addition of 40% should be made on the
said established income of Rs. 3,000/- as
the deceased was below the age of 40
years. Thus, I determine the salary of the
deceased Rajendra Singh for the purposes
of calculating the compensation at Rs.
3000+1200 (40% of Rs. 3,000/-) at Rs.
4200/-month

20. There being no dispute that the
age of the deceased was 28 to 30 years.
The multiplicand applicable would be 18.
Thus, the compensation payable to the
claimants on account of death of Rajendra
Singh would be 4200 x 12 x 18. Out of
the said compensation, one fourth is to be
deducted towards personal expenses as
laid down in paragraph no. 30 of the
judgement in the case of Sarla Verma vs.
Delhi Development Corporation, 2009
(6) SCC 121. Thus, the claimants are
entitled
to
the
following
amounts
9,07,200-2,26,800= Rs 6,80,400/-

21. Over and above the said amount,
the claimant would also be entitled to the
expenses of Rs. 15,000/-, Rs. 40,000/-
and Rs. 15,000/- respectively towards
conventional heads namely loss of estate,
loss of consortium and funeral expenses
as held by the Hon'ble Supreme Court in
the case of Pranay Sethi (supra).

22. Thus, the claimants are entitled
to get Rs. 6,80,400+70,000=7,50,400/-.
The said amount shall be paid to the
claimants along with interest at the rate of
8% per annum from the date of filing of
the claim petition up to the date of actual
payment. The amount already deposited
and paid by the Insurance Company shall
be deducted from the total amount to be
paid to the claimants as directed above.
The Insurance Company shall pay the
amounts as directed above within a period
of two months from today.

23. Accordingly, the First Appeal
From Order No. 2801 of 2007 is partly
allowed by modifying the compensation
payable, whereas the First Appeal From
Order Nos. 2911 of 2007, 2912 of 2007
and 3007 of 2007 are dismissed.

24. The Registry is directed to
communicate a copy of this order to the
District
Judge,
Bulandshahar
for
compliance
and
payments
to
the
claimants in accordance with law.
----------

(2019)11ILR A1167

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2019

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

F.A.F.O. No.- 3313 of 2017

Rinki Devi & Ors. ...Appellants/Claimants
Versus
Jamuna Prasad & Ors.
 ..Respondents/Defendants

Counsel for the Appellants:
Sri Kuldeep Kumar Dixit, Sri Prem
Prakash.

Counsel for the Respondents:
Sri Om Prakash Mishra, Sri Atul Pandey.
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law-Motor Vehicle Act, 1988 -
Uttar Pradesh Motor Vehicles Rules, 1998 -
Motor Accident Claim Tribunal - Nature of
proof
required
-
Preponderance
of
probability - Prima facie evidence

Held:- Strict proof of evidence is not required
to be applied either in determining the
negligence of driver or involvement of
offending vehicle. The standard of judging the
evidence, required in accident claim case, is
preponderance of probability. In such case,
only prima facie evidence involving the alleged
vehicle is required. It has to be seen whether,
or not there is a prima facie evidence available
on record, whereby it can be held that the
alleged accident occurred. (Para 15,16)

B. Civil Law-Motor Vehicle Act, 1988 -
Delayed FIR - Reliable Eye witness

Held: - It is settled principle of law that if the
presence of eye witness at the place of
occurrence is proved and his statement is
reliable; delay in lodging F.I.R; any infirmity in
police papers; even any defect in medical
evidence; and also non-production of other
eye witnesses will be immaterial in evaluation
of evidence of the said eye witness.(Para 18)

C. Civil Law-Motor Vehicle Act, 1988 -
Testimony of Relative/close witness -
cannot be disbelieved

Held:- It is settled principle of law that only
on the ground that the witnesses are relatives
of
the
deceased
or
informant,
their
testimonies cannot be disbelieved. If it is
alleged by the opposite parties i.e driver,
owner and insurer of the offending vehicle it
must be proved by cogent evidence regarding
the non-involvement of their vehicle, where it
has been proved by claimants that death of
deceased was caused by the offending
vehicle. (Para 21)

D. Civil Law-Motor Vehicle Act, 1988 -
Just Compensation - Various points that
are essential for determination of just
compensation are (a) deduction towards
personal
and
living
expenses
to
determine multiplicand; (b) selection of
multiplier depending upon age of the
deceased;
(c)
basis
for
applying
multiplier as age of the deceased; (d)
compensation
permissible
for
conventional head for example loss of
state, loss of consortium and funeral
expenses; (e) addition of income as a
future prospect for both whether the
deceased was a permanent employee or
self employed person. (Para 34)

First Appeal allowed. (E-5)

List of cases cited: -

1. N.K.V. Bros. (P) Ltd. Vs M. Karumai Ammal
1980 ACJ 435 (SC).

2. Bimla Devi Vs Himachal Road Transport
Corp. & ors. (2009) 13 SCC 530.
3. Kusum Lata Vs Satbir 2011 ACJ 926 (SC).

4. Bimala Devi Vs Satbir Singh (2013) 14 SCC
345.

5. National Insurance Co.Ltd. Vs Pranay Sethi
& ors. (2017) 16 SCC 680

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. This first appeal from order has
been preferred under section 173 of
Motor Vehicle Act, 1988 (in short
M.V.Act), against the award and order
dated
31.8.2017,
passed
by
Motor
Accident Claim Tribunal/ Additional
District Judge, Court No.6, Shahjahanpur,
(in short 'Tribunal') in M.A.C.P. No. 172
of 2016 ( Smt. Rinki Devi and others Vs.
Jamuna Prasad and others), whereby the
claim petition filed by the appellantsclaimants (in short claimants) has been
dismissed.

2. Brief facts, arising out of this
appeal, are that the deceased Raj Pal s/o
Natthu Lal, husband of claimant No.1,
Smt. Rinki Devi r/o village- Ram Nagar
3 All. Rinki Devi & Ors. Vs. Jamuna Prasad & Ors.
1169
Colony South, P.S Katra Bazar, District
Shahjahanpur, was going on 22.3.2016, at
3.00. p.m from his house to Katra Bazar.
When he was passing through Mohalla
Ram Nagar Colony on Jalalabad road, a
Maruti WagonR Car No. U.P.-74-K 8724,
which was being driven by respondent
No.2, Man Singh, rash and negligently,
dashed him from back, whereby severe
injuries were caused on his head and legs.
Deceased Raj Pal was carried to Siddh
Vinayak Hospital, Bareilly for treatment.
First Information Report (in short F.I.R)
was lodged on 29.3.2016 by the claimant
No.1, Smt. Rinki Devi, but during
treatment the deceased died on 31.3.2016
due to injuries caused in the said accident.

3.

A
claim
petition,
for
compensation of Rs.24,90,000/-, was filed
by the claimants against respondentowner No.1, Jamuna Prasad, respondent
No.2, driver Man Singh and respondent
No.3,
National
Insurance
CompanyInsurer of the aforesaid car before the
Tribunal. The Tribunal, after considering
the evidence produced by the claimants,
dismissed
the
claim
petition
vide
aforesaid award and order. Aggrieved by
the aforesaid impugned award and order,
this appeal has been preferred.

4. Heard Sri Prem Prakash, learned
counsel for the claimants, Sri Atul
Pandey, learned counsel for respondents
No.1 and 2 and Sri Om Prakash Mishra,
learned counsel for the respondent No.3.

5. Learned counsel for claimants
submits that the alleged accident has been
caused due to rash and negligent driving
by respondent No.2 of vehicle WagonR
Car
No.
U.P.-74-K
8724,
wherein
deceased Raj Pal received severe injuries
and died later on, during treatment on
31.3.2016. Place of accident lies between
headquarters
of
both
districts
Shahjahanpur and Bareilly. Deceased was
admitted in Siddh Vinayak Hospital
Bareilly
for
better
treatment.
The
Tribunal, without applying its judicial
mind, improperly and illegally assessed
the evidence on record, produced by both
the parties, whereas involvement of
alleged vehicle has been proved not only
by oral evidence of P.W-1 Rinki Devi,
P.W-2 Rishi Pal, but also proved by
documentary evidence i.e F.I.R, charge
sheet, site plan and the bill voucher of
medical treatment. The impugned award
and order is based on surmises and
conjencture which is liable to be set aside
and the appeal is liable to be allowed.

6.

Learned
counsel
for
the
respondent Nos. 1 and 2 (owner and
driver)
and
learned
counsel
for
respondent
No.
3
(Insurer)
have
vehemently opposed the submissions
made by the learned counsel for the
claimants and submitted that the alleged
injuries due to which the deceased died,
had not been caused in any accident
caused by the driver of the alleged vehicle
Maruti WagonR Car No. U.P.-74-K 8724;
deceased had received injury in any other
occurrence/incident at unknown place; he
had been admitted in hospital situated at
Bareilly which is more than 70-80
kilometers away from the place of
accident as alleged by the claimants and
F.I.R was lodged after 8 days of the
accident. It has further been submitted
that P.W-1 Rinki Devi is not an eye
witness, P.W-2 Rishi Pal is not the
resident of the nearby place of the
occurrence; he is brother-in-law of the
deceased; his presence, all of a sudden, at
the place of occurrence is not natural, and
his evidence has also not been supported
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
and corroborated by other evidence
available on record. It has also further
been submitted by the learned counsels
that independent witness, whose presence
has been shown in the F.I.R and is the
resident to the nearby place of the
accident, has not been produced by the
claimant, the impugned order is legal and
requires no interference.

7. I have considered the submissions
made by learned counsels of both the
parties and perused the record.

8. Section 168, Section 169 and
Section 176 of M.V. Act provides a
procedure for determination of just
compensation. According to Section 168
of M.V. Act, for determination of
compensation, the Tribunal is required to
hold an inquiry into the claim, section 169
provides that in holding such inquiry, the
Claim
Tribunal
shall
follow
such
summary procedure as it thinks fit,
whereas Section 176 empowers the State
Government to make rules. Sections 168,
169 and 176 are reproduced as under:

"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 may be, each of the
claims and, subject to the provisions of
sections of section 162 may make an
award
determining
the
amount
of
compensation which appears to it to be
just and specifying the person or person
or person 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
3 All. Rinki Devi & Ors. Vs. Jamuna Prasad & Ors.
1171
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 purposes of
adjudicating
upon
any
claim
for
compensation, choose one or more
persons possessing special knowledge of
and matter relevant to the inquiry to
assist it in holding the inquiry."

176.
Power
of
State
Government to make rules. - A State
Government may make rules for the
purpose of carrying into effect the
provisions of sections 165 to 174, and in
particular, such rules may provide for all
or any of the following matters, namely :-
(a) the form of application for claims for
compensation and the particulars it may
contain, and the fees, if any, to be paid in
respect of such applications;

(b) the procedure to be followed
by a Claims Tribunal in holding an
inquiry under this Chapter;

(c) the powers vested in a Civil
Court which may be exercised by a
Claims Tribunal;

(d) the form and the manner in
which and the fees (if any) on payment of
which an appeal may be preferred against
an award of a Claims Tribunal; and

(e) any other matter which is to
be, or may be, prescribed.

9. State Government, in exercise of
power conferred under section 176 MV
Act, has framed the Uttar Pradesh Motor
Vehicles Rules, 1998 (in short Rules).
Rule 203-A, and 203-C read with Rule
211-A are relevant at this juncture, which
declare
the
presumption
of
certain
document
prepared
by
Investigating
Officer. These rules are as follows:-

Rule
203-A.
Duties
of
investigating Police Officer - (1) The
investigating Police Officer shall prepare
a site plan, drawn on 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
preserve 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,
inter alia for the purposes of proceeding
before the Claims Tribunal.

(2) The investigating Police
Officer shall get full particulars of the
Insurance Certificate / Policy in respect of
the motor vehicle involved in the
accident, and to require the production of
documents mentioned in sub-section (1)
of Section 158, and thereupon either to
take the same in possession against
receipt, or to retain the photocopies of the
same, after attestation thereof by the
person producing them.

(3) The investigating Police
Officer may verify the genuineness of the
documents gathered under sub-rule (2) by
obtaining confirmation in writing from
the authority purporting to have issued the
same.

(4) The investigating Police
Officer shall submit detailed report
regarding the accident to the Claims
Tribunal,
alongwith
site
plan
and
photographs prepared under sub-rule (1),
documents gathered and verified under
sub-rules (2) and (3) or action taken in
case of documents found forged, copies of
report under Section 173 of the Code of
Criminal Procedure, medico legal reports
and post-mortem report (in case of death),
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
First Information Report, by not later than
fifteen days of receipt of order /
requisition issued by the Claims Tribunal:

Provided that such information
may also be furnished to the Insurance
Company if requested by or through its
agent or by the injured / sufferer or next
of the kin or legal representatives of the
deceased of the accident.

The investigating Police Officer
shall submit report under this rule to the
Claims Tribunal in Form SR 48-A.

(5)
Duties
of
investigating
Police Officer, enumerated in sub-rules
(1) to (3) shall be construed as if they are
included in Section 23 of U.P. Police Act,
1861 and any break thereof, shall entail
consequences envisaged in that law.

Rule
203-C.
Duties
of
Registering
Authority
-
(1)
The
registering authority of motor vehicles
and licensing authority, issuing driving
license, shall submit a report or issue a
certificate relating to verification of
registration and other documents with
complete details and of driving license of
the driver of the vehicle involved in
accident when directed by the Tribunal or
asked by the Insurance Company.

(2) The Registering Authority of
motor vehicles and licensing authority
shall also provide information mentioned
in sub-rule (1) to the person / persons who
wishes or have filed petitions for
compensation or who is involved in an
accident or his next of kin, or to the legal
representative of the deceased as the case
may be.

Rule
211-A
"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."

10. Since the proceeding for
determination of compensation is an
inquiry, the principle of law applicable in
criminal trial as well as civil suit is not
applicable in such proceeding. It should
also be kept in mind that after causing
accident, driver of vehicle makes every
effort
to
flee
from
the
place
of
occurrence, leaving the injured in critical
condition. In such situation passers-by or
onlookers come forward to help. They
also try to chase the offending vehicle and
to note its registration number, as well as
make efforts to catch the driver of the
offending vehicle and disclose the same
to claimant/informant or person available
on spot. It has been seen that in some
cases, in order to avoid to attend the
Court proceeding or further inquiry made
by Police, eye witnesses do not come
forward to disclose their names. In
addition to above, Rules framed by
Government clearly provides that F.I.R
and certain documents prepared by
Investigating Officer of the accident for
ex. site plan, photograph of place of
occurrence shall be read without formal
proof unless proved contrary.

11. Hon'ble Supreme Court in
N.K.V. Bros (P) Ltd. Vs. M. Karumai
Ammal, 1980 ACJ 435 (SC), holding
that Tribunal is duty-bound to be vigilant
that due to technicalities of procedural
law, the innocent victim do not suffer, has
held as under:-

"Road accidents are one of the
top killers in our country, specially when
truck and bus drivers operate nocturnally.
This
proverbial
recklessness
often
persuades the courts, as has been
observed by us earlier in other cases, to
draw an initial presumption in several
cases based on the doctrine of res ipsa
3 All. Rinki Devi & Ors. Vs. Jamuna Prasad & Ors.
1173
loquitur. Accidents Tribunals must take
special care to see that innocent victims
do not suffer and drivers and owners do
not escape liability merely because of
some doubt here or some obscurity there.
Save in plain cases, culpability must be
inferred from the circumstances where it
is fairly reasonable. The court should not
succumb to niceties, technicalities and
mystic maybes. We are emphasising this
aspect because we are often distressed by
transport operators getting away with it
thanks to judicial laxity, despite the fact
that they do not exercise sufficient
disciplinary control over the drivers in
the matter of careful driving."

12. In Bimla Devi Vs. Himachal
Road
Transport
Corporation
and
Others, 2009 (13) SCC 530, Hon'ble
Supreme Court while discussing the
nature of evidence required for proof of
accident
and
determination
of
compensation before the Tribunal, has
held as under:-

14. "Some discrepancies in the
evidences of the claimant's witnesses
might have occurred but the core question
before the Tribunal and consequently
before the High Court was as to whether
the bus in question was involved in the
accident or not. For the purpose of
determining the said issue, the Court was
required to apply the principle underlying
the burden of proof in terms of the
provisions of Section 106 of the Evidence
Act,1872 as to whether a dead body
wrapped in a blanket had been found at
the spot at such an early hour, which was
required to be proved by Respondents 2
and 3."

15''.In a situation of this nature,
the Tribunal has rightly taken a holistic
view of the matter. It was necessary to be
borne in mind that strict proof of an
accident caused by a particular bus in a
particular manner may not be possible to
be done by the claimants. The claimants
were merely to establish their case on the
touchstone
of
preponderance
of
probability. The standard of proof beyond
reasonable doubt could not have been
applied. For the said purpose, the High
Court
should
have
taken
into
consideration the respective stories set
forth by both the parties."

13. In Kusum Lata Vs. Satbir,
2011 ACJ 926 (SC), the Supreme Court
while holding the nature of evidence
required before Trial Court, again has
held as under:-

"8. Both the Tribunal and the
High Court have refused to accept the
presence of Dheeraj Kumar as his name
was not disclosed in the FIR by the
brother of the victim. This Court is unable
to appreciate the aforesaid approach of
the Tribunal and the High Court. This
Court is of the opinion that when a person
is seeing that his brother, being knocked
down by a speeding vehicle, was suffering
in pain and was in need of immediate
medical
attention,
that
person
is
obviously under a traumatic condition.
His first attempt will be to take his
brother to a hospital or to a doctor. It is
but natural for such a person not to be
conscious of the presence of any person in
the vicinity especially when Dheeraj did
not stop at the spot after the accident and
gave a chase to the offending vehicle.
Under such mental strain if the brother of
the victim forgot to take down the number
of the offending vehicle it was also not
unnatural.

9. There is no reason why the
Tribunal and the High Court would
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
ignore the otherwise reliable evidence of
Dheeraj Kumar. In fact, no cogent reason
has been assigned either by the Tribunal
or by the High Court for discarding the
evidence of Dheeraj Kumar. The so-called
reason that as the name of Dheeraj
Kumar was not mentioned in the FIR, so
it was not possible for Dheeraj Kumar to
see the incident, is not a proper
assessment of the fact-situation in this
case. It is well known that in a case
relating to motor accident claims, the
claimants are not required to prove the
case as it is required to be done in a
criminal trial. The Court must keep this
distinction in mind."

14. In Bimala Devi Vs. Satbir
Singh (2013) 14 SCC 345, the Supreme
Court has again reminded the nature of
proof,
required
in
determining
the
compensation in claim petition and has
held as under:-

"10. In claim cases, it is difficult
to get witnesses, much less eye witnesses,
thus extremely strict proof of facts in
accordance
with
provisions
of
the
Evidence Act may not be adhered to
religiously. Some amount of flexibility has
to be given to those cases, but it may not
be construed that a complete go by is to
be given to the Evidence Act.

11. From the facts as unfolded
hereinabove, it is clear that appellants
have been callous and negligent in
prosecuting the matter and did not do so
in right earnest. We cannot take a
pedantic view of the matter so as to shut
the doors of justice to the appellants. The
Motor Vehicles Act is social piece of
legislation and has been enacted with the
intent and object to facilitate
the
claimants/victims to get redress for the
loss of loosing of family members or for
injuries in an early date. In any case,
money cannot be any substitute for it, but
in the long run it

may have something soothing
effect. Thus, it is desirable to adopt a
more realistic, pragmatic and liberal
approach in these matters....."

15. Thus, it is also settled principle
of
law
that
the
law
relating
to
compensation, awarded due to motor
accident, is beneficial legislation. Strict
proof of evidence is not required to be
applied
either
in
determining
the
negligence of driver or involvement of
offending
vehicle. The
standard of
judging the evidence, required in accident
claim
case,
is
preponderance
of
probability. In such case, only prima facie
evidence involving the alleged vehicle is
required.

16. Thus, it has to be seen whether,
or not there is a prima facie evidence
available on record, whereby it can be
held that the alleged accident occurred on
22.3.2016 at 3.00 p.m, within the area of
mohalla Ram Nagar colony, Jalalabad
Road, P.S. Katra, District Shahjahanpur,
wherein the deceased Raj Pal received
severe injuries and died later on during
treatment on 31.3.2016.

17. From perusal of the impugned
award, it is clear that the learned Tribunal
has not relied on sole testimony of eye
witness of the accident, P.W-2 Rishi Pal,
who
is
real
brother-in-law
of
the
deceased, because his presence at the
place of accident was not natural; because
according to him, the deceased was
admitted by police in hospital and his
statement was not supported by the police
report; deceased was not admitted for
treatment in any hospital in district
3 All. Rinki Devi & Ors. Vs. Jamuna Prasad & Ors.
1175
Shahjahanpur; injury report, site plan of
the accident and post mortem report were
also not corroborating the version of P.W2 Rishi Pal; because no ante-mortem
injuries were found on the head of
deceased.

18. It is settled principle of law that
if the presence of eye witness at the place
of occurrence is proved and his statement
is reliable; delay in lodging F.I.R; any
infirmity in police papers; even any defect
in medical evidence; and also non
production of other eye witnesses will be
immaterial in evaluation of evidence of
the said eye witness.

19. P.W-1 Rinki Devi is not an eye
witness. P.W-2 Rishi Pal has been
produced by the claimants as eye witness
of the occurrence. Thus, it has to be seen
whether, the presence of P.W-2 Rishi Pal
at the place of accident is proved and his
statement is trustworthy or not. He is
resident of village Isura, P.S.-Faridpur,
District Bareilly whereas the alleged
accident took place at mohalla Ram
Nagar Colony, Jalalabad Road, police
station
Katra
Bazar,
District
Shahjahanpur. He is real brother-in-law of
the deceased Raj Pal. According to him,
at the time of accident he was going to the
house of the deceased with mataka (ritual
on eve of Holi festival). As he proceeded
on foot from Katra Bazar crossing
through Jalalabad Road towards his
Sasural, reached two hundred meters
away from the crossing, he saw that his
brother-in-law (Sala) was coming on foot
towards Katra crossing for marketing and
as he was 50 meters away from him, a
white colour Maruti WagonR Car No.
U.P.-74-K 8724, driven by its driver, rash
and negligently, dashed Raj Pal from back
and fled away from the place of incident.
In cross examination, he has admitted that at
the place of incident, crowd had gathered
and an unknown person called the police,
thereafter the police reached there. He has
further stated that the deceased was admitted
by the police in hospital. He has also
admitted that the alleged accident took place
in front of house of Jai Narain. According to
him the road, where the incident occurred, is
north to south and accident took place to
western side of the road. In cross
examination, he stated that he had not carried
the deceased Raj Pal to any hospital in Katra
Bazar, but he has specifically stated that he
had seen the registration number of the
offending vehicle from the front and back
side both. He further stated that deceased had
been carried in Ambulance to Siddh Vinayak
hospital, Bareilly by him along with police.
P.W-1 Rinki Devi also stated that deceased
had been admitted in hospital by police and
P.W-2, Rishi Pal.

20. In this case, F.I.R of the accident
was lodged after 8-9 days of the accident
wherein
it
has
been
specifically
mentioned that the alleged accident was
seen by one Viresh Kumar Mishra and
Rishi Pal (P.W-2).

21. It is settled principle of law that
only on the ground that the witnesses are
relatives of the deceased or informant,
their testimonies cannot be disbelieved. If
it is alleged by the opposite parties i.e
driver, owner and insurer of the offending
vehicle it must be proved by cogent
evidence regarding the non involvement
of their vehicle, where it has been proved
by claimants that death of deceased was
caused by the offending vehicle.

22. Death information report was
sent from Siddh Vinayak Hospital to
Inspector P.S. Kotwali, District Bareilly,
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
which shows that the deceased Raj Pal
was admitted by a helping ambulance.
This document has been filed by the
claimants, wherein it has been mentioned
that the deceased Raj Pal was admitted in
hospital in unconscious condition on
22.3.2016 at 3.10 p.m and he had died on
31.3.2016 at 6.00 p.m, due to severe
injuries on the head and both legs of the
deceased, caused in accident at Jalalabad
Road. Although in the site plan of the
occurrence, the presence of witness has
not been shown but it is clear from the
perusal of this document that alleged
accident took place on western side of the
road from back side of the deceased. In
F.I.R, the registration no. of the aforesaid
vehicle has been specifically mentioned
and after investigation the charge sheet
was also filed under sections 279, 338 and
304-A I.P.C against respondent No.2,
Man Singh, driver of the aforesaid car.

23. Neither P.W-2, Rishi Pal,
brother-in-law of deceased Raj Pal, nor
P.W-1, Rinki Devi, wife of deceased, has
stated that Siddh Vinayak Hospital is
situated 70-80 kilometers away from the
place of occurrence but the Tribunal has
recorded this fact without any evidence of
non applicants i.e insurer, driver or owner
on
record
that
Bareilly
is
70-80
kilometers away from the place of
accident.

24. Shahjahanpur and Bareilly are
adjoining districts. Neither P.W-1, Rinki
Devi nor P.W-2 Rishi Pal was cross
examined by the insurance company
before Tribunal as to why the deceased
was taken away for treatment to Siddh
Vinayak Hospital, Bareilly. Record shows
that deceased Rajpal was in critical
position at the time of accident. Thus, if
the helping ambulance, on the advise of
police, took away the deceased to Siddh
Vinayak Hospital, Bareilly for better
treatment and P.W-2 Rishi Pal did not
resist, his evidence cannot be treated as
unreliable.

25. In my view, the finding recorded
by the learned Tribunal regarding nonreliability of evidence of P.W-2 Rishi Pal,
on the ground, that police got the
deceased admitted in hospital Bareilly or
he had not admitted the deceased in any
hospital in Shahjahanpur or the police had
denied its role in getting the deceased
admitted in hospital at Bareilly, is not
justifiable in this accident claim petition
because
these
irregularities
or
inconsistencies are either superficial or
immaterial in the facts and circumstance
of this case.

26. It is also pertinent to note at this
juncture that Tribunal has disbelieved the
evidence produced by the claimants
because no injury report of deceased was
produced and in postmortem report no
ante-mortem injuries were found on the
head of deceased whereas, according to
Rishipal (P.W-2), head injuries were
caused to deceased in the alleged
accident.

27. From perusal of the record, it
transpires that due to severe injuries,
caused in the alleged accident, the
condition of deceased Rajpal was critical
at the time of accident, hence in my view
if the deceased was not carried to any
Government Hospital and no injury report
was either prepared or filed before the
Tribunal, it will not effect the veracity of
evidence, produced by the claimants.

28. So far as the presence of antemoterm head injury in the postmortem
3 All. Rinki Devi & Ors. Vs. Jamuna Prasad & Ors.
1177
report is concerned, from perusal of the
postmortem report, it is clear that three
ante-mortem injuries have been noted in
postmortem report wherein injury no.1
was stitched wound 2cm with 3cm and
injury no.2 was stitched wound of 3 cm,
both were on above right eye brow
whereas injury no.3 was fracture in both
legs. In addition to it, it has also been
noted that haemotoma was present in the
brain of the deceased and in column of
opinion, regarding cause and manner of
death, it has been specifically mentioned
in the post-mortem report that the death
of deceased was caused due to antemotem head injury. Thus, the finding of
Tribunal that according to postmortem
report no head injury was caused or injury
report was not produced, is against the
evidence available on record.

29. From perusal of the record, it
further transpires that only copies of
registration certificate, insurance policy
of the offending vehicle and driving
license of respondent No.2, Man Singh,
were filed by the respondent-owner
whereas
only
copy
of
accidental
investigation report was filed by the
Investigator
of
respondent-Insurance
Company wherein Rs.69,808/- has been
verified as expenses incurred in treatment
of the deceased. In this report, no fact has
been mentioned, which creates any doubt
in the alleged accident caused by
offending vehicle. No evidence has been
produced by the respondent-owner, driver
or insurer of the alleged vehicle to
controvert the documentary and ocular
evidence produced by the claimants.

30. In view of the above, I am of the
view that the alleged accident was caused
due to rash and negligent driving of
offending vehicle No.U.P.74-K-8724 on
22.3.2016 at 3.00 p.m, wherein the
deceased Raj Pal received severe injuries
and died on 31.3.2016 during treatment.
The finding of learned Tribunal in this
case is against the settled principle of law
as well the evidence and material
available on record.

31. So far as question regarding
determination of compensation or liability
to payment is concerned, in claim petition
six dependents on the deceased have been
shown. Appellant/claimant No.1 is wife
of the deceased and other five claimants
are the children of the deceased. Age of
the deceased, at the time of accident has
been shown as 40 years, which is also
verified from the post mortem report as
well as the death information report of the
deceased available on record. Thus, for
the
purpose
of
determination
the
multiplier, age of deceased is determined
between 40 years to 45 years.

32. In claim petition, monthly
income of deceased has been alleged
Rs.15,000/- per month and his profession
has been shown as mason "Raj Mishtri"
but no documentary proof has been
submitted by the claimants in this regard.
P.W-1, Smt. Rinki Devi, wife of deceased,
in her cross examination has stated that
her husband used to do the job of labourer
as mason but he did not get it regularly.
Looking into the facts and circumstance
of this case, as no documentary proof has
been placed on record by the claimants,
regarding the income of the deceased and
deceased was an unskilled labourer
belonging to rural area, his monthly
income is assessed as Rs.3000/- ( three
thousand) per month.

33. In addition to above, deceased
was admitted for treatment in Siddh
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
Vinayak Hospital, Bareilly on 22.3.2016
where his treatment was continued up to
31.3.2016 i.e till his death. Various bill
vouchers of amount spent on treatment of
deceased, filed by claimants are available
in lower court record. In claim petition, it
has
been
specifically
stated
that
Rs.1,00,000/- were spent on treatment of
the deceased. The said bill vouchers have
not been authentically proved by the
claimants, but the same were verified by
the respondent-insurer as transpires from
the verification report of Investigator,
appointed by the Insurer. In this report the
bill voucher of Rs.69,808/- was verified
and
found
genuine
by
the
said
Investigator. In view of the above, the
claimants are entitled to Rs.70,000/- as
medical expenses.

34. Law regarding determination of
just compensation has now been settled
by the Constitutional Bench of Hon'ble
Supreme Court in National Insurance
Company Ltd. Vs. Pranay Sethi and
others (2017) 16 SCC 680, wherein,
Hon'ble Court while discussing the law in
Sarla Verma Vs. Delhi Transport
Corporation
(2009)
6
SCC
121;
Reshma Kumari Vs. Madan Mohan
(2009) 13 SCC 422; Rajesh Vs. Rajbeer
Singh (2013) 9 SCC 54; Santosh Devi
Vs. National Insurance Company Ltd.
(2012) 6 SCC 421; Munna Lal Jain vs.
Vipin Kumar Sharma (2015) 6 SCC
347; UPSRTC vs. Trilok Chandra
(1996) 4 SCC 362; National Insurance
Company Ltd. Vs. Pushpa (2015) 9
SCC 166 and various case laws relating
to determination of just compensation,
has settled down the law regarding
various topics which are essential for
determination of just compensation i.e.
(a) deduction towards personal and living
expenses to determine multiplicand; (b)
selection of multiplier depending upon
age of the deceased; (c) basis for applying
multiplier as age of the deceased; (d)
compensation
permissible
for
conventional head for example loss of
state, loss of consortium and funeral
expenses; (e) addition of income as a
future prospect for both whether the
deceased was a permanent employee or
self employed person. Hon'ble Supreme
Court in Pranay Sethi (supra) has held as
follows:-

59. In view of the aforesaid
analysis, we proceed to record our
conclusions:-

59.1 The two-Judge Bench in
Santosh Devi should have been well
advised to refer the matter to a larger
Bench as it was taking a different view
than what has been stated in Sarla Verma,
a judgment by a coordinate Bench. It is
because a coordinate Bench of the same
strength cannot take a contrary view than
what has been held by another coordinate
Bench.

59.2 As Rajesh has not taken
note of the decision in Reshma Kumari,
which was delivered at earlier point of
time, the decision in Rajesh is not a
binding precedent.

59.3 While determining the
income, an addition of 50% of actual
salary to the income of the deceased
towards future prospects, where the
deceased had a permanent job and was
below the age of 40 years, should be
made. The addition should be 30%, if the
age of the deceased was between 40 to 50
years. In case the deceased was between
the age of 50 to 60 years, the addition
should be 15%. Actual salary should be
read as actual salary less tax.

59.4 In case the deceased was
self-employed or on a fixed salary, an
3 All. Rinki Devi & Ors. Vs. Jamuna Prasad & Ors.
1179
addition of 40% of the established income
should be the warrant where the deceased
was below the age of 40 years. An
addition of 25% where the deceased was
between the age of 40 to 50 years and
10% where the deceased was between the
age of 50 to 60 years should be regarded
as the necessary method of computation.
The established income means the income
minus the tax component.