# Shiv Prasad & Ors v. Deo Nrain Singh & Ors

- **Citation:** (2021) 11 ILRA 1254
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-27
- **Case number:** First Appeal From Order No. 44 of 2013
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-prasad-ors-v-deo-nrain-singh-ors-46532
- **Pages:** 7

## Headnote

Civil Law - Motor Accident Claim - Motor
Vehicles Act, 1988 - Section 173 - Claim
petition by widow of deceased - Insurance
Company did not lead any evidence - Claim
petition dismissed - Tribunal answered issue
about the factum of the accident involving
the offending vehicle against the claimant -
Tribunal rejected evidence of PW-2 eye
witness on the ground he did not carry the
victim to the hospital soon after accident,
number of the offending vehicle not figured
in
FIR,
witness
in
not
chasing
and
apprehending the bus, makes his presence
doubtful - security personnel employed by
the brick kiln, the Students' Hostel or the
Mahendra Tractor Agency, not being called as
witnesses by the claimant to prove the
factum of accident - Held - once PW-2 had
testified as an eye-witness to the accident, it
was imperative for the Insurance Company to
have
produced
evidence
to
rebut
the
claimants' case - Tribunal, in the absence of
any evidence led by the Insurance Company,
or by the driver or the owner, has committed
a manifest error of law in disbelieving the
claimants'
case
-
Matter
remanded
to
Tribunal to try and decide claim petition
afresh (Para 23, 24, 28 )

Allowed. (E-5)
11 All. Shiv Prasad & Ors. Vs. Deo Nrain Singh & Ors.
1255

## Text

1254 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Learned AGA also admitted the fact
that appellant is in jail for more than 14 years.

23. As discussed above, 'reformative
theory of punishment' is to be adopted and for
that reason, it is necessary to impose punishment
keeping in view the 'doctrine of proportionality'.
It appears from perusal of impugned judgment
that sentence awarded by learned trial court for
life term is very harsh keeping in view the
entirety of facts and circumstances of the case
and gravity of offence. Hon'ble Apex Court, as
discussed above, has held that undue harshness
should be avoided taking into account the
reformative approach underlying in criminal
justice system.

24. It is admitted fact that appellant is in
jail for more than 14 years. Having in view the
offence committed by the appellant, life
sentence seems to be very harsh. Hence keeping
in view the harshness of sentence of life term
awarded to the accused-appellant, we are of the
considered view that it should be reduced to a
fixed term sentence. Hence, we opine that ends
of justice would be met if sentence of life
imprisonment awarded for the offence under
Section 376 of I.P.C. is reduced to the rigorous
imprisonment of 15 years and fine Rs.10,000/-.

25. Hence, the sentence awarded to the
appellant by the learned trial court for the
offence under Section 376 IPC is reduced to 15
years
rigorous
imprisonment
and
fine
Rs.10,000/-. The appellant shall undergo simple
imprisonment for one year in case of default of
fine. Amount of fine shall be paid to the
prosecutrix as compensation. Conviction and
sentence awarded for the rest of the offences
shall remain intact.

26. Accordingly, the appeal is partly
allowed with the modification of the sentence,
as above.
----------
(2021)12ILR A1254
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.11.2021

BEFORE

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

First Appeal From Order No. 44 of 2013

Shiv Prasad & Ors. ...Appellant
Versus
Deo Nrain Singh & Ors. ...Respondents

Counsel for the Appellant:
R.P. Shukla, A.K. Shukla

Counsel for the Respondents:
Kumwar Bahadur Singh, Waquar Hasim

Civil Law - Motor Accident Claim - Motor
Vehicles Act, 1988 - Section 173 - Claim
petition by widow of deceased - Insurance
Company did not lead any evidence - Claim
petition dismissed - Tribunal answered issue
about the factum of the accident involving
the offending vehicle against the claimant -
Tribunal rejected evidence of PW-2 eye
witness on the ground he did not carry the
victim to the hospital soon after accident,
number of the offending vehicle not figured
in
FIR,
witness
in
not
chasing
and
apprehending the bus, makes his presence
doubtful - security personnel employed by
the brick kiln, the Students' Hostel or the
Mahendra Tractor Agency, not being called as
witnesses by the claimant to prove the
factum of accident - Held - once PW-2 had
testified as an eye-witness to the accident, it
was imperative for the Insurance Company to
have
produced
evidence
to
rebut
the
claimants' case - Tribunal, in the absence of
any evidence led by the Insurance Company,
or by the driver or the owner, has committed
a manifest error of law in disbelieving the
claimants'
case
-
Matter
remanded
to
Tribunal to try and decide claim petition
afresh (Para 23, 24, 28 )

Allowed. (E-5)
11 All. Shiv Prasad & Ors. Vs. Deo Nrain Singh & Ors.
1255
(Delivered by Hon'ble J.J. Munir, J.)

1. This is a claimants' appeal under Section
173 of the Motor Vehicles Act, 1988.

2. By the impugned judgment and award
dated 18.10.2012, the Motor Accident Claims
Tribunal/Additional District Judge Court No.2,
Faizabad has dismissed the appellants' Claim
Petition No. 28 of 2012.

3. The motor accident claim arises from an
accident that occurred on 24th of November,
2011 at 5:30 in the evening. The victim was one
Surendra Kumar Verma. Verma was on his way
to his in-laws from Faizabad after doing his
days' work. He was proceeding to Village Pure
Kashinath,
Haripur
Jalalabad,
P.S.
Cantt,
District Faizabad, where his in-laws lived.
Verma was hit by a Tata Bus bearing
Registration No. UP 42B 1968, that is said to
have been driven rashly and negligently. Verma,
who was on his side of the road, was hit by the
bus and crushed under its wheels. He sustained
grievous injuries. The passers-by took him to the
District Hospital, Faizabad, but he died on way
to the hospital.

4. The claimant-appellant-Phoola Devi is
Verma's widow. It is asserted in the claim that
Verma was aged 30 years at the time of accident
and was a healthy youngman. He was gainfully
self employed as a mason and was also into
farming. He had an income of Rs.9,000/- per
month. The claim petition was instituted by
Varma's widow alone, though in the column of
dependents, besides the deceased's widow, Shiv
Prasad Verma, his father, Bittan Devi, his
mother, Vikas Verma, Vishal Verma and
Abhishek Verma, his brothers are also shown.
The claim made is for a sum of Rs.47,80,000/-
together with interest.

5. A written statement was filed on behalf
of Deo Narain Singh, who is the owner of the
offending vehicle. He has acknowledged the fact
of being the registered owner of the vehicle and
the further fact that opposite party no. 2 to the
claim petition, Awadhesh Kumar Singh, who is
the third respondent here, is the driver. It was
asserted that Awadhesh Kumar Singh had a
valid driving license to drive the bus and
commands experience on the job. It was pleaded
that no First Information Report about the
incident was lodged. It is averred that the
offending vehicle is registered with the Oriental
Insurance Company Ltd., Faizabad, with a
policy valid upto 05.01.2012 until midnight. The
further stand taken is that the offending vehicle
was not involved in the accident. It was asserted
that in the event the Tribunal reached conclusion
that the offending vehicle was indeed the one
involved, liability would fasten upon the
Insurance Company to indemnify.

6. The second opposite party to the claim
petition, who are second respondent here, that is
to say, the Oriental Insurance Company Ltd.,
Faizabad, represented by its Regional Manager
put in their written statement. The appellants'
claim was denied. It was asserted that the
Insurance Company dispute the factum of
accident as also the involvement of the
offending vehicle insured by them. It was
pleaded that unless the claimant establishes the
factum of accident, the Insurance Company had
no onus. It was also pleaded that the Insurance
Company deny insuring the offending vehicle as
well as its validity, unless the registered owner
of the vehicle does not prove those facts. The
Insurance Company would have onus about the
aforesaid fact after the registered owner
established the vehicle's insurance and its
validity. It was asserted that the registered owner
has to prove that the driver possessed a valid and
effective driving license and that in case the
driver failed to establish a valid and effective
driving license on the date of accident, the
Insurance Company would have no liability. A
plea was also raised that the owner of the vehicle
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
has to establish the validity of other documents,
authorizing him to ply the vehicle. The
compensation claimed was dubbed as excessive.
It was also pleaded that the claim petition is not
in the prescribed proforma and was liable to be
rejected.

7. The Tribunal, on the basis of parties'
pleadings,
framed
the
following
issues
(translated into English from Hindi vernacular):-

(i) Whether on 24.11.2011, at about
5:30 in the evening, when Surender Kumar
Verma was proceeding from Faizabad after
doing his day's work to his in-laws at Village
Pure Kashinath, Haripur Jalalabad, P.S. Cantt,
District Faizabad, Tata Bus No. UP 42B 1968,
coming on from the direction of Faizabad, that
was driven rashly and negligently by its driver,
hit Surendra Kumar Verma, leading him to
suffer serious injuries which resulted in his
death?

(ii) Whether at the time of accident the
vehicle bearing Registration No. UP 42B 1968
was insured with the office of the Oriental
Insurance Company?

(iii)
Whether
vehicle
bearing
Registration No. UP 42B 1968, at the time of
accident, was driven by a driver possessed of a
valid driving license?

(iv) To what relief the claimant is
entitled?

8. In support of the claim, a photostat copy
of the First Information Report, a photostat copy
of photo I.D. Card issued by Election
Commission of India, a certified copy of the
charge-sheet filed by the Police, a certified copy
of the postmortem report, a certified copy of the
site plan drawn by the investigating officer in
the relative criminal case, besides a photostat
copy of the death certificate of the deceased and
the basic labour rate list have been filed. Phoola
Devi, the claimant, entered the dock and testified
in support of the claim petition as CPW1. One
Keshav Ram was also examined in support of
the claim petition as CPW2. On behalf of the
owner and the driver, a photostat copy of the
driving license, a photostat copy of the
registration certificate of the offending vehicle
and a photostat copy of the insurance cover note
have been filed. No one testified orally on behalf
of the owner and the driver.

9. The Insurance Company did not lead
any evidence, either documentary or oral.

10. The crucial issue, on which the event
has turned in the claim petition, is issue no.(i). It
is about the factum of the accident involving the
offending vehicle. This issue has been answered
against the claimants and in favour of the
respondents/opposite
parties.
It
must
be
remarked that issue nos. 2 and 3 have been
answered in the affirmative, holding that the
offending vehicle was insured with the Oriental
Insurance Company and that the driver held a
valid driving license on the date of the accident.
Nevertheless, on the basis of the findings
recorded on issue no.1, the claim petition has
been ordered to be dismissed.

11. Aggrieved this, the present First
Appeal From Order has been preferred by the
claimants, who, for some reason here, include all
the dependents of the deceased shown in the
claim petition.

12. Heard Mr. R.P. Shukla, learned counsel
for the appellants and Mr. Waquar Hasim,
learned counsel appearing on behalf of the
Oriental Insurance Company Ltd. No one
appears on behalf of respondent nos.1 and 3.

13. Mr. Shukla, learned counsel for the
appellants, submits that the findings on issue
no.1 are based on conjectures and are
11 All. Shiv Prasad & Ors. Vs. Deo Nrain Singh & Ors.
1257
perfunctory. He submits that the Tribunal has
rejected the evidence of PW-2- Keshav Ram
Verma, who is an eye witness to the incident. by
doubting his presence on the scene of accident.
He submits that these conclusions have been
drawn by the Tribunal by judging the witness's
conduct at the time of accident and soon
thereafter, which, according to Mr. Shukla, has
been projected as an imaginary model about the
manner in which the witness ought to have
acted, had he really been present at the scene of
accident. And then a comparison of the witness's
conduct has been made by the Tribunal to that
model to disbelieve his presence.

14. The learned counsel for the Insurance
Company, on the other hand, submits that the
Tribunal has carefully evaluated the evidence on
record and disbelieved the factum of accident.
The Tribunal has considered the conduct of PW2- Keshav Ram Verma, who claims to be an
eyewitness of accident and rightly concluded
that he was a got up witness.

15. Learned counsel for the Insurance
Company, Mr. Waquar Hasim, also submits that
the Tribunal has rightly opined that the evidence
of PW-1 is hardly relevant because she is not an
eyewitness at all. Her evidence is hearsay.
Learned counsel for the Insurance Company has
also laid much emphasis on the fact that the
accident occurred at 5:30 in the evening and by
that time, it is quite dark in the month of
November. The Tribunal has rightly held that
the witness's motorcycle was moving ahead of
the offending vehicle, when the latter caused the
accident and that, therefore, it is not believable
that the witness could have seen the vehicle's
registration number on the back side. The
evidence of PW-2 has also been castigated by
the learned counsel for the Insurance Company
on the same lines as done by the Tribunal, on
ground that this witness has said that he knew
Verma personally and yet, after witnessing him
suffer a serious accident, did not carry the victim
to the hospital. Instead, he went off to Verma's
home to inform his relatives about the accident.
It is also submitted by the learned counsel for
the Insurance Company that the postmortem
report has been rightly read and understood by
the Tribunal to infer that the injuries sustained
by the deceased could well be the result of any
kind of violence or occurrence. The injuries
shown in the postmortem report do not show the
victim's death to have been caused by a motor
accident.

16. We have carefully considered the
submissions advanced by the learned counsel for
both parties and also perused the record.

17. This Court must say at once that the
various inferences drawn by the Tribunal about
the veracity of PW-2- Keshav Ram are indeed
conjectural. The Tribunal has recorded the
presence of PW-2 as one made up, because he
did not carry Verma to the hospital soon after
the accident. To this end, the Tribunal has
reasoned that the witness says that he knew
Verma and if that were the case, the conduct of
the witness in not rushing the victim to the
hospital, makes his presence at the scene of the
accident impossible to believe. We do not think
so. The deceased had suffered an accident,
where he was crushed under the wheels of a bus.
The precise manner, in which a person would
react in a given situation, cannot be judged by
stereotypes of behavior. There could be a great
variation in responses based on the personality,
training, the nature of the injury sustained by the
victim and the other circumstances, such as
ready help of others to ferry the victim to
medical aid. A man with a timid heart or one
who lacks confidence or by his training is not
used to handling victims of a gory incident, may
not have the guts of carrying an acquaintance or
a friend in a badly or fatally injured state to the
hospital. The decision to do so or not to do so
can also be conditioned by the presence of
others, who might have volunteered to take the
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
victim to the hospital. Here, there is evidence
that the victim was indeed taken to the hospital
by the passersby. In these circumstances, if the
witness thought it better to inform Verma's
relatives about the misshappening, the fact that
he did not, in the first instance, rush Verma to
hospital, cannot make the presence of PW-2
doubtful. There is no evidence that PW-2 is into
a kind of a job, such as a paramedic or a member
of the Armed Forces, where he is trained to
handle victims of serious injuries or accidents,
particularly his acquaintances. Apparently, he is
a man with no special training or particular
station in life, that would equip him to readily
rush the victim of a major accident to the
hospital. There could be many more reasons for
the witness not to carry the victim to the
hospital, but this Court does not want to record
further findings in the matter, considering the
course of action which we propose to adopt in
this case.

18. The other findings of the Tribunal that in
case this witness had, in fact, read or noted the
number of the offending vehicle, he would have
communicated it to the members of Verma's
family and in that case, it would have figured in
the FIR lodged by the family on the following day,
are equally flawed. This again is an assumption not
based on responses of men, who were in the midst
of a trauma. It is not unreasonable to believe that a
person, who has seen a fatal accident, informs the
family about it, but omits to mention the
registration number of the offending vehicle. The
family, who lodged the FIR on the following day,
would not be in the best serenity of mind to script
the FIR in all its minutest details. It is a bit
unreasonable and pedantic to assume that the FIR,
in not carrying the registration number of the
offending vehicle, when lodged on the following
day, shows that the witness PW-2 had never noted
that number. In the melee that follows a mishap of
this kind, there could be many a slip contributing
to omission of the registration number in the FIR
or even in a later statement.

19. The matter requires to be considered
more carefully. There is then this finding
recorded by the Tribunal that PW-2- Keshav
Ram was riding a motorcycle and his presence is
not believable because he did not give the
offending vehicle, a bus, a chase and force it to
stop. The Tribunal has most wildly conjectured
to say that it is definite that the speed of a
motorcycle is far greater than that of a bus and
that, therefore, the witness not chasing and
apprehending the bus, makes his presence
doubtful. It is not always necessary that a
motorcycle may move faster than a bus. It
depends on the road conditions and many other
factors. It also depends on the condition of the
motorcycle as well as the bus and the technical
specifications. There cannot be a generalization
about it in the manner done by the Tribunal also.
The task of giving a chase to a large vehicle, like
a bus, on a two wheeler and bringing it to a halt,
is no trifling, and an untrained man may never
have the nerve to do it or the necessary skill. He
may even fear for his own life that the once
killer bus, in order to escape liability, may turn a
twice killer. These are all possibilities that may
have legitimately prevented the witness in
opting for the course that the Tribunal has
thought to be decisive about the falsehood of
this witness's testimony.

20. Again, this Court refrains from
expressing any final opinion, but wishes to
indicate that these are possibilities which require
more objective assessment.

21. The adverse inference drawn against
the presence of this witness for his inaction in
reporting the matter to the Police, has also been
given undue weight. In the sequence of events,
once the witness thought that he should rush to
the family, informing the Police could have
become a secondary priority. The victim had
already been rushed to the hospital by those
present on the spot, and the Police, in any case,
had reached the hospital. There is then another
11 All. Shiv Prasad & Ors. Vs. Deo Nrain Singh & Ors.
1259
finding recorded by the Tribunal, which says
that PW-2 has admitted the fact that his
motorcycle's headlight was functional, but that
of the bus was not. It was, therefore, unnatural
for the witness to have noted down the
registration number of the vehicle at 5:30 in the
evening when it is dark. It is beyond
understanding how the non-functional headlight
of the bus would prevent the witness, who had a
working headlight on his motorcycle, from
noting down its registration number. This
conclusion recorded by the Tribunal is perverse.
It is possible for the witness to have noted down
the registration number of the bus from a
distance of 10-15 feet at 5:30 in the evening of
24.11.2011,
despite
darkness
setting-in,
employing that headlight on his motorcycle that
would have caught the rear number plate of the
bus.

22. The other findings recorded is about
the security personnel employed by the brick
kiln, the Students' Hostel or the Mahendra
Tractor Agency, not being called as witnesses by
the claimant to prove the factum of accident.

23. In our opinion, once PW-2 had testified
as an eye-witness to the accident, it was
imperative for the Insurance Company to have
produced evidence to rebut the claimants' case.
The evidence of PW-2 is sufficient to discharge
the claimants' onus on principle akin to Section
101 of the Indian Evidence Act, 1872. The Act
last mentioned though not applicable to
proceedings before the Tribunal proprio vigore,
the principle is well established.

24. Onus probandi is the burden to lead
evidence on an issue that rests at a particular
point of time on the shoulders of one party or the
other. It shifts during trial and is different from
burden of proof, which is the overall burden to
be discharged on an issue. Here, the Insurance
Company, as already said, has not led any
evidence. The Tribunal, in the absence of any
evidence led by the Insurance Company, or for
that matter, by the driver or the owner, has
committed
a
manifest
error
of
law
in
disbelieving the claimants' case. There is too
much of conjuncture running through every limb
of the findings on issue no.1, recorded by the
Tribunal.

25. Nevertheless, this Court does not wish
to express a final opinion in the matter,
inasmuch as we think that the case should go
back to the Tribunal, who should try and redetermine it, affording further opportunity to
both parties to lead such evidence, as may be
advised.

26. This Court also notices the fact that the
findings on issue nos.2 and 3, have been
recorded rather cursorily, because the approach
of the Tribunal was one under the shadow of its
finding on issue no.1. Learned counsel for the
Insurance Company says that those findings are
also required to be gone into afresh, with
opportunity to them to produce evidence in
support of the pleas raised in their written
statement. Learned counsel for the appellants
also submits that the Tribunal has not framed
any issue about the quantum of compensation
claimed, which ought to have been framed. It is
true that if the claim succeeds, as a result of
return on other findings, which the Tribunal
shall now do afresh, the quantum would have to
be worked out. As such, the Tribunal ought to
frame
an
issue
about
the
quantum
of
compensation payable, about which too, parties
would be at liberty to lead evidence.

27. Before parting with the matter, it is
made clear that apart from the guidance about
the approach of the Tribunal while judging issue
no.1, this judgment shall not be regarded as an
expression of opinion on the merits of the
appellants' claim or against it. The Tribunal shall
be free, bearing in mind what has been indicated
hereinabove, to try and decide the matter afresh
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
in accordance with law. It is also made clear that
the evidence already on record shall be taken
into consideration, together with any further
evidence that the parties may now be advised to
lead.

28. In the circumstances, this appeal partly
succeeds and is allowed in part. The impugned
judgment and award dated 18.10.2012, passed
by the Motor Accident Claims Tribunal/
Additional District Judge, Court No.2, Faizabad
in Claim Petition No.28 of 2012, Phoola Devi
vs. Deo Narain and Others, is hereby set aside,
with a remit of the matter to the Tribunal to try
and decide the claim petition afresh, in
accordance with the guidance in this judgment.
It is also ordered that the Tribunal shall
endeavor to decide the claim petition within a
period of six months of the date of receipt a
copy of this judgment.

29. Costs easy.
----------
(2021)12ILR A1260
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2021

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Matters Under Article 227 No. 5552 of 2021

Ram Ashish Yadav ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri R.K. Shahi

Counsel for the Respondents:
G.A.

Criminal Procedure Code, 1973 - Section 457 -
Seizure of currency notes by police - Release
of
such
notes
-
Magistrate
rejected
petitioner's
application
to
release
Rs.
4,00,300/-, seized by police during raid of his
house - Magistrate rejected application only
on the ground that the currency notes were
case property which were required to be
produced during the trial - Held - currency
notes and ornaments etc. cannot be withheld
by the court till disposal of the trial only on
the ground that such properties are case
properties - valuable articles like ornaments,
domestic articles and currency notes etc. can
be returned to the person entitled to the
possession thereof - Magistrate should have
ascertained as to who was entitled to the
custody of currency notes - After ascertaining
the person entitled to the custody of currency
notes he should have passed order for custody
of currency notes - Matter remitted back to
pass fresh order (Para 10, 11)

Allowed. (E-5)

List of Cases cited:

1. Manjit Singh Vs St.LAWS(DLH)-2014-9-311

2. Sundar Bhai Ambalal Desai Vs St.of Guj. 2003(1),
J.I.C.615, SC

(Delivered by Hon'ble Gautam Chowdhary, J.)

1. Heard learned counsel for the
petitioner and Shri Rakesh Srivastava and Shri
Madnesh Prasad Singh, learned AGAs for the
State.

2. This petition has been filed praying for
the following reliefs:

"(i) Issue a order or direction to setaside the impugned order dated 03.03.2021
passed by the learned Court of Judicial
Magistrate, Court No.11, Deoria, passed in
Misc. No. 58/21 State vs. Krishna Kumar and
others AND the order dated 13-08-2021
passed by the learned Sessions Judge, Deoria
in Criminal Revision No. 45/2021 C.N.R. No.-
UPDEO1001041 2021 Ram Ashish Yadav vs.
State of U.P. (Annexure No. 1 and 2 to this
writ petition).