# Satypal Singh & Ors v. Manoj Kumar & Ors

- **Citation:** (2021) 10 ILRA 1021
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-01
- **Case number:** FAFO No. 3390 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satypal-singh-ors-v-manoj-kumar-ors-46281
- **Pages:** 8

## Headnote

Criminal Law - Motor Vehicles Act,1988 -
Section 166 - Claim petition - Pleading -
what has not been contended in the
written statement cannot be permitted to
be proved which is beyond record - where
the pleadings are silent, the same cannot
be agitated so as to dismiss the claim of
the claimants
Tribunal rejected claim petition - Tribunal felt
there is collusion between the parties - No
rebuttal evidence led by insurance company -
W.S. totally silent on the point involvement of
any other vehicle in the accident and that it
has sent the matter for - All of a sudden
without amending W.S. private investigator
produced by insurance company - Insurance
company did not produce investigator's report
- on what basis private investigator found that
another vehicle was involved is not projected-
no reason to falsely implicate a vehicle -
insurance company not led any evidence that
the vehicle has been falsely implicated -
police
authorities
never
summoned
by
Tribunal - judgment passed on surmises &
conjectures that there is fraud, deception and
cheating investigation - Order rejecting claim
petition, set aside - Matter remitted back to
Tribunal to decide the issue of negligence &
quantum of compensation (Para 10, 11,12)

Allowed. (E-5)
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited :

## Text

10 All. Satypal Singh & Ors. Vs. Manoj Kumar & Ors.
1021
amount to judicial impropriety to say the
least, for the subordinate courts including
the High Courts to ignore the settled
decisions and then to pass a judicial order
which is clearly contrary to the settled
legal position. Such judicial adventurism
cannot be permitted and we strongly
deprecate the tendency of the subordinate
courts in not applying the settled principles
and in passing whimsical orders which
necessarily has the effect of granting
wrongful and unwarranted relief to one of
the parties. It is time that this tendency
stops."

The writ petition, in this case,
being not maintainable, obviously, all
orders passed must perish, including the
impugned order, which is set aside.

The appeals are allowed in the
aforesaid terms.

Pending applications, if any,
shall stand disposed of."

(13) In view of the aforesaid
judgments of the Apex Court, this writ
petition
is
not
maintainable
as
the
petitioners have a remedy by way of filing
of application/appeal under Section 17(1)
of the Act, 2002.

(14) The judgments, which have been
placed reliance by the learned Counsel for
the petitioners, are not applicable in the
facts and circumstances of the case.

(15) The writ petition is dismissed, as
not maintainable.
----------
(2021)10ILR A1021
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 01.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

FAFO No. 3390 of 2016

Satypal Singh & Ors. ...Appellants
Versus
Manoj Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri Nipun Singh, Sri Sumit Suri

Counsel for the Respondents:
GA, Sri Atul Kumar Srivastava

Criminal Law - Motor Vehicles Act,1988 -
Section 166 - Claim petition - Pleading -
what has not been contended in the
written statement cannot be permitted to
be proved which is beyond record - where
the pleadings are silent, the same cannot
be agitated so as to dismiss the claim of
the claimants
Tribunal rejected claim petition - Tribunal felt
there is collusion between the parties - No
rebuttal evidence led by insurance company -
W.S. totally silent on the point involvement of
any other vehicle in the accident and that it
has sent the matter for - All of a sudden
without amending W.S. private investigator
produced by insurance company - Insurance
company did not produce investigator's report
- on what basis private investigator found that
another vehicle was involved is not projected-
no reason to falsely implicate a vehicle -
insurance company not led any evidence that
the vehicle has been falsely implicated -
police
authorities
never
summoned
by
Tribunal - judgment passed on surmises &
conjectures that there is fraud, deception and
cheating investigation - Order rejecting claim
petition, set aside - Matter remitted back to
Tribunal to decide the issue of negligence &
quantum of compensation (Para 10, 11,12)

Allowed. (E-5)
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited :

1. Mangla Ram Vs Oriental Insurance Co. Ltd. &
ors. 2018 LawSuit (SC) 303

2. Sunita & ors. Vs RSRTC & Anr 2019 LawSuit
(SC) 190

3. New India Assurance Company Vs Urmila
Shukla MANU/SCOR/24098/2021

4. Vimla Devi & ors. Vs National Insurance
Company Ltd. & anr. (2019) 2 SCC 186

5. Anita Sharma & ors. Vs The New India
Assurance Com. Ltd. & anr. 2021 (1) SCC 171

6. Chandrakanta Tiwari Vs New India Assurance
Company Ltd. C.A. No. 2527 of 2020
08.06.2020

7. United India Insurance Company Vs Shaila
Dutta 2011 (10) SCC 509

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Subhash Chand, J.)

1. Heard Sri Sumit Suri, Advocate,
holding brief of Sri Nipun Singh, learned
counsel for appellants, Sri Atul Kumar
Srivastava,
learned
counsel
for
respondents-Insurance
Company
and
perused the record of Tribunal.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 29.09.2015 passed by Motor
Accident
Claims
Tribunal,
Baghpat
(hereinafter referred to as 'Tribunal') in
M.A.C.P. No. 24 of 2013 whereby the
claim petition has been dismissed.

3. The facts as culled out, from the
record are that the deceased was a pillion
rider on the two wheeler driven by Akash
son of Bhanwar Singh. Both of them were
returning home one Wagon-R was being
driven rashly and negligently, dashed with
the motorcycle whereby the driver and the
deceased were injured. The accident
occurred on 22.2.2013 and for a period of
two days he survives.

4. On 23.02.2013, the respondent
filed its reply disputing the fact that the
driver of the vehicle was driving the
vehicle rashly and negligently and was
driving the vehicle without taking proper
care and caution and the vehicle was
insured with insurance company.

5. The claimants filed documentary
evidence so as to prove oral documentary
evidence. The tribunal has framed five
issues and decided all the issues and
dismissed the claim petition. The tribunal
dismissed the claim petition on totally
ungermane grounds which could not be
made on the basis of surmises and
conjectures. The tribunal disbelieved the
involvement of the vehicle on the ground
that driver of the vehicle did not sustain
serious injuries. He has disbelieved the
evidence of PW 1 to 5 that they are not to
be disbelieved and has relied on the
decision of Orissa High Court. The
investigator report, who has produces PW1
has been believed. According to D.W.1 the
accident occurred due to involvement with
some other vehicle and not that of WagonR. It is held that the evidence of PW.1 is
not trustworthy and that accident occurred
with unknown vehicle and the FIR has been
given after two days. The tribunal has
considered the facts which are not proved,
the fact that charge-sheet is led against the
driver and owner of Wagon-R. The chargesheet and FIR prima facie prove the
accident between the two vehicle. During
investigation DW1 did not mention the fact
that the accident occurred with which
10 All. Satypal Singh & Ors. Vs. Manoj Kumar & Ors.
1023
vehicle. The investigator just because of the
investigator found that the vehicle involved
in the accident was also really involved in
the accident in the year 2012 and on the
same basis he has come to the conclusion
that the vehicle was not involved. He has
not examined any other person as driver of
the motorcycle. The charge-sheet led
against Manoj Kumar just because Satpal
Singh and Harpal Singh did not carry said
vehicle that it is full proof investigation. He
has not come out with number of vehicle
which he suspects was involved. All these
facts will go against the respondentinsurance company. Thus eye witnesses
opined we will have to upturn the findings
as far as non involvement of the vehicles,
hence the matter is allowed. We would
have decided the quantum of compensation
as it is composite negligence of both the
drivers. The driver and owner of the
insurance company of the motor cycle is
not joined as respondent party.

6. The order of the Tribunal is based
on hyper technical ground that the FIR did
not disclose the number of vehicle and that
it was lodged against unknown vehicle. It is
further submitted that the Tribunal has held
that the driver of the vehicle did not sustain
any injury. The Tribunal has rejected the
claim petition of the appellants, who have
lost the bread earner of the family.

7. Learned counsel for the appellant
has heavily relied on the decision of the
Apex Court in the case of Mangla Ram
Vs. Oriental Insurance Co. Ltd. and
others [2018 LawSuit (SC) 303]. He
further relied in the case of Sunita and
others
Vs.
Rajasthan
State
Road
Transport Corporation and another
[2019 LawSuit (SC) 190] so as to discard
the statement of the counsel for the
respondent. The said submission of the
counsel for the respondent cannot be
accepted for the reason that the driver,
owner of the vehicle whose vehicle was
involved in the accident has filed written
statement wherein the accident having been
taken place with their vehicle is not denied.
The Tribunal on surmises and conjectures
has disbelieved the evidence of eye
witnesses.

8. The paragraph-18 of Mangla Ram
(Supra) reads as under:

"18. It will be useful to advert to
the dictum in N.K.V. Bros. (P) Ltd. Vs. M.
Karumai Ammal and others.16, wherein it
was contended by the vehicle owner that
the criminal case in relation to the accident
had ended in acquittal and for which
reason the claim under the Motor Vehicles
Act ought to be rejected. This Court
negatived the said argument by observing
that the nature of proof required to
establish culpable rashness, punishable
under the IPC, is more stringent than
negligence sufficient under the law of tort
to create liability. The observation made in
paragraph 3 of the judgment would throw
some light as to what should be the
approach of the Tribunal in motor accident
cases. The same reads thus:

3. 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 court, 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 loquitur.
Accident 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
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
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
emphasizing 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 (1980) 3 SCC 457
disciplinary control over the drivers in the
matter of careful driving. The heavy
economic impact of culpable driving of
public transport must bring owner and
driver to their responsibility to their
neighbour. Indeed, the Stat must seriously
consider no fault liability by legislation. A
second aspect which pains us is the
inadequacy of the compensation or undue
parsimony practised by tribunals. We must
remember that judicial tribunals are State
organs and Article 41 of the Constitution
lays the jurisprudential foundation for State
relief against accidental disablement of
citizens. There is no justification for
niggardliness in compensation. A third
factor which is harrowing is the enormous
delay in disposal of accident cases
resulting in compensation, even if awarded,
being postponed by several years. The
States must appoint sufficient number of
tribunals and the High Courts should insist
upon quick disposals so that the trauma
and tragedy already sustained may not be
magnified by the injustice of delayed
justice. Many States are unjustly indifferent
in this regard."

9. Learned counsel for the appellant
has relied on the decisions of Apex Court
in New India Assurance Company Vs.
Urmila Shukla decided on 6.8.2021
reported in MANU/SCOR/24098/2021,
Vimla Devi and others Vs. National
Insurance Company Ltd. and another
(2019) 2 SCC 186 and Anita Sharma and
others Vs. The New India Assurance
Company Limited and another 2021 (1)
SCC 171.

Sections 166, 168 and 147 of the
Motor Vehicle Act are reproduced as
under:

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

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

(b) by the owner of the property;
or

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

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

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

(2) Every application under subsection (1) shall be made, at the option of
the claimant, either to the Claims Tribunal
having jurisdiction over the area in which
the accident occurred, or to the Claims
Tribunal within the local limits of whose
10 All. Satypal Singh & Ors. Vs. Manoj Kumar & Ors.
1025
jurisdiction the claimant resides or carries
on business or within the local limits of
whose jurisdiction the defendant resides,
and shall be in such form and contain such
particulars as may be prescribed:

Provided that where no claim for
compensation under Section 140 is made in
such application, the application shall
contain a separate statement to that effect
immediately before the signature of the
applicant.

(3) * * * *

(4) The Claims Tribunal shall
treat any report of accidents forwarded to
it under sub-section (6) of Section 158 as
an application for compensation under this
Act."

"168. Award of the Claims
Tribunal.-

(1)
..................................................

(2)
..................................................

(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."

"147. Requirements of policies
and limits of liability:

(1) In order to comply with the
requirements of this Chapter, a policy of
insurance must be a policy which--

(a) is issued by a person who is
an authorised insurer; and

(b)
insures
the
person
or
classes of persons specified in the policy
to the extent specified in sub-section (2)-
-

(i) against any liability which
may be incurred by him in respect of the
death of or bodily 27 [injury to any
person, including owner of the goods or
his authorised representative carried in
the vehicle] or damage to any property
of a third party caused by or arising out
of the use of the vehicle in a public
place;

(ii) against the death of or
bodily injury to any passenger of a
public service vehicle caused by or
arising out of the use of the vehicle in a
public place:

Provided that a policy shall not
be required--

(i) to cover liability in respect
of the death, arising out of and in the
course of his
employment, of
the
employee of a person insured by the
policy or in respect of bodily injury
sustained by such an employee arising
out of and in the course of his
employment other than a liability arising
under the Workmen's Compensation Act,
1923 (8 of 1923) in respect of the death
of, or bodily injury to, any such
employee--

(a)
engaged
in driving
the
vehicle, or

(b) if it is a public service vehicle
engaged as conductor of the vehicle or in
examining tickets on the vehicle, or
1026 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) if it is a goods carriage, being
carried in the vehicle, or

(iii) to cover any contractual
liability.

Explanation. --For the removal of
doubts, it is hereby declared that the death
of or bodily injury to any person or damage
to any property of a third party shall be
deemed to have been caused by or to have
arisen out of, the use of a vehicle in a
public place notwithstanding that the
person who is dead or injured or the
property which is damaged was not in a
public place at the time of the accident, if
the act or omission which led to the
accident occurred in a public place.

(2) Subject to the proviso to subsection (1), a policy of insurance referred
to in sub-section (1), shall cover any
liability incurred in respect of any accident,
up to the following limits, namely:--

(a) save as provided in clause (b),
the amount of liability incurred;

(b) in respect of damage to any
property of a third party, a limit of rupees
six thousand:

Provided that any policy of
insurance issued with any limited liability
and in force, immediately before the
commencement of this Act, shall continue
to be effective for a period of four months
after such commencement or till the date of
expiry of such policy whichever is earlier.

(3) A policy shall be of no effect
for the purposes of this Chapter unless and
until there is issued by the insurer in favour
of the person by whom the policy is effected
a certificate of insurance in the prescribed
form
and
containing
the
prescribed
particulars of any condition subject to
which the policy is issued and of any other
prescribed matters; and different forms,
particulars and matters may be prescribed
in different cases.

(4) Where a cover note issued by
the insurer under the provisions of this
Chapter or the rules made thereunder is
not followed by a policy of insurance within
the prescribed time, the insurer shall,
within seven days of the expiry of the
period of the validity of the cover note,
notify the fact to the registering authority in
whose records the vehicle to which the
cover note relates has been registered or to
such
other
authority
as
the
State
Government may prescribe.

(5)
Notwithstanding
anything
contained in any law for the time being in
force, an insurer issuing a policy of
insurance under this section shall be liable
to indemnify the person or classes of
persons specified in the policy in respect of
any liability which the policy purports to
cover in the case of that person or those
classes of persons."

10. Three aspects which we would
highlight would be (1) though the Tribunal
has felt that there is collusion between the
parties. No rebuttal evidence is led by the
insurance company except the evidence of
the so called private investigator. We will
have to go by the pleadings of the parties
also. The written statement of the insurance
company is totally silent on the point
involvement of any other vehicle in the
accident and that it has sent the matter for
investigation. The written statement was
filed on 22.02.2013. The evidence of
witnesses of the claimants and their crossexamination also silent to the said fact. Not
10 All. Satypal Singh & Ors. Vs. Manoj Kumar & Ors.
1027
a single question in rebuttal is asked to any
of the witnesses. The Tribunal has
permitted evidence being led by the
insurance company. Even if, we go by the
evidence of D.W.1, he has unfortunately
not produced his investigation report. He
on what basis has found that another
vehicle was involved is also not projected.
Had there been a collusion between the
owner, driver of the composite vehicle, the
respondent would not have filed the reply
of
denial.
They
totally
denied
the
negligence. The factum of charge-sheet has
not been proved by D.W.1 to a concocted
one. If we peruse the written statement
filed on behalf of insurance company,
which runs into 23 paragraphs they should
he saddled with principles of falsus in uno
falsus in omnius meaning thereby false
one thing would be false in everything
should be applied to the facts of this case
also. The reason being the insurance
company
has
nowhere
in
its
reply
mentioned even that they had appointed an
investigator.
They
did
not
produce
investigator's report and therefore, we are
unable to fathom how all of a sudden they
have examined so called investigator as
D.W. 1. The police authorities have never
been summoned by the Tribunal and the
judgment has been passed on surmises and
conjectures that there is fraud, deception
and cheating. Even in the additional pleas
which runs up to paragraph-40 also does
not state anywhere that they have given the
matter for special investigation to any
person. All of a sudden without amending
the written statement D.W.1 has been
produced. Even if, we consider his
submission, he has heavily relied on the
FIR which was lodged against unknown
vehicle. The fact that the record is silent
about this aspect of the matter will also
permit us to discord the said fact as having
not been proved. Recently the Apex Court
in Chandrakanta Tiwari Vs. New India
Assurance Company Ltd. (Civil Appeal
No. 2527 of 2020) decided on June 08,
2020 has held that what has not been
contended in the written statement cannot
be permitted to be proved which is beyond
record. The insurance company if it wanted
to heavily relied on the report of the private
investigator, the investigator's report should
have been produced. The trapping of Civil
Court should not be adhered to in such a
way that it does not give so as to the
claimants of the accident. The fact that the
judgment in United India Insurance
Company Vs. Shaila Dutta, 2011 (10)
SCC 509 will also enure for the benefit of
the appellants. Further the Apex Court has
held that where the pleadings are silent, the
same cannot be agitated so as to dismiss the
claim of the claimants. In the present case
also the written statement of the insurance
company is totally silent on this aspect,
hence we cannot concur with the award of
the Tribunal.

11. There is no reason to falsely
implicate a vehicle and the insurance
company has not led any evidence that the
vehicle has been falsely implicated. This is
one of the aspect which goes against the
insurance company. Thus, the appeal stands
allowed and the judgment and award dated
29.09.2015 passed by Motor Accident Claims
Tribunal, Baghpat in M.A.C.P. No. 24 of
2013 is set aside. We remit the matter to the
Tribunal to hear the matter afresh on the
negligence as record is already there after
affording proper opportunity of hearing to the
parties concerned. The judgment in Mangla
Ram (Supra) will favour the appellants and
not to the respondents as submitted by the
respondents.

12. We direct the Tribunal to decide
the issue of negligence and quantum of
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation as all other issues are already
decided, it would be a question of
composite negligence as the deceased was
a pillion rider on the vehicle being driven
by Akash son of Bhanwar Singh and if
ultimately the Tribunal holds both the
drivers negligent, they may give rights to
recover from the owner, driver of the
vehicle, who was not made party to the
case.

13. We are thankful to the Advocates,
who assisted the Court in disposing of the
matter finally.

14. Let the record of court below be
sent back to the Tribunal concerned.
----------
(2021)10ILR A1028
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 10.08.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

FAFO No. 3462 of 2016

Smt. Saroj Devi & Ors. ...Appellants
Versus
Amar Jeet Singh & Anr. ...Respondents

Counsel for the Appellants:
Sri Anubhav Sinha

Counsel for the Respondents:
Sri Rahul Sahai

A. Criminal Law - Motor Vehicles Act,
(59
of
1988)
-
Section
168
-
Compensation - contributory negligence
- Motor Accident claim - Burden of
proof - burden of proof ordinarily on
the defendants in a motor accident
claim petition to prove that motor
vehicle
was
being
driven
with
reasonable care or that there is equal
negligence on the part the other side
(Para 13)

B. Criminal Law - Motor Vehicles Act (59
of 1988) - Section 168 - Compensation -
Determination - income of the deceased
as per salary slip Rs.10,736/- per month
- tribunal wrongly considered his income
to be Rs. 7413/ - deceased in age
bracket of 36 to 40 years - 50% future
loss of income requires to be added -
non-pecuniary
damages
should
be
Rs.70,000/- + 10% rounded to Rs.
30,000/- increase as per Pranay Sethi
case as three years have elapsed hence,
the lump sum amount under this head
Rs.1,00,000/- - deceased in hospital
from
15.11.2013
to
22.11.2013
-
entitled
for
trauma
and
medical
expenses to Rs. 25,000/- - rate of
interest should be 7.5%

Allowed. (E-5)

List of Cases cited :

1. National Insurance Com. Ltd. Vs Pranay Sethi
& ors. 2017 0 Supreme (SC) 105

2. Vimal Kanwar Vs Kishor Dan & ors. (2013) 7
SCC

3. Malarvizhi & ors. Vs United India Insurance
Company Ltd. 2020 (4) SCC 228

4. United India Insurance Co. Ltd. Vs Indira
Devi & ors. 2018 (7) SCC 715

5. The Oriental Insurance Company Ltd. Vs
Mangey Ram & Ors 2019 0 Supreme (All) 1067

6. New India Assurance Com. Vs Urmila Shukla
MANU/SCOR/24098/2021

7. Kirti & ors. Vs Oriental Insurance Company
Ltd 2021(1) TAC

8. Bajaj Allianz General Insurance Co.Ltd. Vs
Smt. Renu Singh & Ors FAFO No. 1818 of 2012
dated 19.7.2016 -