# Shrimati Saroj & Ors v. Raman Malhotra & Ors

- **Citation:** (2020) 12 ILRA 135
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-26
- **Case number:** First Appeal From Order No. 3989 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shrimati-saroj-ors-v-raman-malhotra-ors-45445
- **Pages:** 5

## Headnote

Civil Law -Motor Vehicles Act (59 of 1988)
- Section 168 - Claim for compensation -
Non mention of vehicle number in the
F.I.R. - Held - in a case relating to motor
accident
claims,
claimants
are
not
required to prove the case as it is required
to be done in a criminal trial - when a
person see his brother, being knocked
down by vehicle & see him suffering in
pain & in need of immediate medical
attention - that person is obviously under
a traumatic condition - his first attempt
136 INDIAN LAW REPORTS ALLAHABAD SERIES
will be to take injured 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 - Under such mental
strain, it is not unnatural, if the brother of
the victim forgot to take down the number
of the offending vehicle (Para 9)

Tribunal dismissed claim petition holding that the
vehicle was not involved in the accident as F.I.R. was
silent qua the number of the vehicle - F.I.R. was
lodged promptly - though the number of the vehicle
was not mentioned - during the investigation it was
found that the vehicle was involved in the accident -
charge-sheet was laid - Written statement has been
filed by owner - there was no denial of accident -
Held - finding of fact of the Tribunal upturned, decree
quashed & set aside - record sent back to the
Tribunal for deciding on the other issues.

Appeal allowed. (E-5)

List of Cases cited: -

## Text

12 All. Shrimati Saroj & Ors. Vs. Raman Malhotra & Ors.
135
it to the Tribunals so that in future such
mistakes do not occur and the pendency of
this High Court does not get increased.

30. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of investment
is not passed because applicants/claimants
are neither illiterate or restic villagers.

31. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguti P. Ladhani v/s The Oriental
Insurance Company Ltd., reported in
2007(2) GLH 291, total amount of interest,
accrued
on
the
principal
amount
of
compensation is to be apportioned on financial
year to financial year basis and if the interest
payable to claimant for any financial year
exceeds
Rs.50,000/-,
insurance
company/owner is/are entitled to deduct
appropriate amount under the head of 'Tax
Deducted at Source' as provided u/s 194A (3)
(ix) of the Income Tax Act, 1961 and if the
amount
of
interest
does
not
exceeds
Rs.50,000/- in any financial year, registry of
this Tribunal is directed to allow the claimant
to withdraw the amount without producing the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna and
others Vs. Hari Singh and another) while
disbursing the amount.

32.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and not blindly apply the judgment
of A.V. Padma (supra). The same is to be
applied looking to the facts of each case.

33. The record be sent back to
Tribunal.

34. This Court is thankful to learned
advocates for arguing and getting matter
disposed of.
----------
(2020)12ILR A135
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2020

BEFORE

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

First Appeal From Order No. 3989 of 2017

Shrimati Saroj & Ors. ...Appellants
Versus
Raman Malhotra & Ors. ...Respondents

Counsel for the Appellants:
Sri Vishnu Prakash Srivastava

Counsel for the Respondents:
Sri Mohan Srivastava, Sri A.K. Upadhyay,
Sri Mohan Srivastava, Sri Vijay Prakash
Awasthi, Sri Vijay Kumar Rathi

Civil Law -Motor Vehicles Act (59 of 1988)
- Section 168 - Claim for compensation -
Non mention of vehicle number in the
F.I.R. - Held - in a case relating to motor
accident
claims,
claimants
are
not
required to prove the case as it is required
to be done in a criminal trial - when a
person see his brother, being knocked
down by vehicle & see him suffering in
pain & in need of immediate medical
attention - that person is obviously under
a traumatic condition - his first attempt
136 INDIAN LAW REPORTS ALLAHABAD SERIES
will be to take injured 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 - Under such mental
strain, it is not unnatural, if the brother of
the victim forgot to take down the number
of the offending vehicle (Para 9)

Tribunal dismissed claim petition holding that the
vehicle was not involved in the accident as F.I.R. was
silent qua the number of the vehicle - F.I.R. was
lodged promptly - though the number of the vehicle
was not mentioned - during the investigation it was
found that the vehicle was involved in the accident -
charge-sheet was laid - Written statement has been
filed by owner - there was no denial of accident -
Held - finding of fact of the Tribunal upturned, decree
quashed & set aside - record sent back to the
Tribunal for deciding on the other issues.

Appeal allowed. (E-5)

List of Cases cited: -

1. Kusum Lata & ors. Vs Satbir & ors. 2011 (1) AICC 651

2. Smt. Santosh & ors. Vs United India
Insurance Company & ors. First Appeal From
Order No.866 of 2003 Dt. 4.3.2020

3.Mangla Ram Vs Oriental Insurance Company
Limited & ors. Laws(SC) (2018) 49

4.Sunita & ors. Vs Rajasthan State Road
Corporation & anr. 2019(1) TAC 710 (SC)

5. Vimla Devi & ors. Vs National Insurance
Company Limited & anr. (2019) 2 SCC 18

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

1. Heard learned counsel Shri Vishnu
Pratap Srivastava for the appellants and
learned counsel Shri Mohan Srivastava for
the respondents-Insurance Company. Other
respondents have absented themselves and
are not represented though served.

2. This appeal, at the behest of
Claimants challenges the judgment and
award dated 13 09 2017 passed by Motor
Accident Claims Tribunal Bulandsaher
(hereinafter referred to as 'Tribunal') in
M.A.C.P No.1 of 2010, whereby the claim
petition filed by the claimants was
dismissed by the tribunal.

3. The parties are referred to as
claimants/appellants(original
applicants).
and insurance company/ /respondents.

4. The brief facts as they emerge are
on the fateful day namely 30th of October,
2008, the deceased Satyendra Pal and his
brother Krishna Kumar were easing near
Ram Lila Ground when Krishna Kumar in
the early morning at about 4.00 a.m. was
going to drop Gulabati who was serving at
a distant place. A Maruti Zen came and
dashed with the deceased. The deceased
breathed last on the spot. A First
Information Report was given by Krishna
Kumar in the early morning on the same
day at 8.30. The post mortem report was
carried out and the report was furnished at
3.00 p.m. on the very same day. The
deceased Satyapal Singh was 46 years of
age, he was serving in the Telephone
Department as Senior T.O. at Meghrajpur
and he was earning Rs.18,877/- per month.
He
had
also
his
agricultural
land.
Respondent No.1 Raman Malhotra was the
owner of the vehicle and the vehicle was
being driven by whom was not known. The
Insurance Company of the Vehicle was
arrayed as Respondent No.3. The owner
Raman
Malhotra
filed
his
replies
contending that he had already sold the
vehicle to one Marketing Automobiles Pvt.
Ltd., Arvind Marg, New Delhi, and the
same was sold on 28.12.2006 and,
therefore, he was not the owner of the
vehicle. He has no reason to be impleaded
as respondent in the said petition and the
vehicle if was got released, it was by
12 All. Shrimati Saroj & Ors. Vs. Raman Malhotra & Ors.
137
person who was not he himself. The
respondent No.2 also remained absent.
Respondent No.3 has filed reply of
negation.

5. During the course of the hearing,
several applications were given to call for
the S.S.P. and to implead respondent Nos. 4
and 5 who are deemed to be the owner of
the vehicle. The Tribunal framed five issues
but did not decide any of them except issue
No.1 holding that the vehicle was not
involved in the accident and the claim
petition was dismissed.

6. The Tribunal dismissed the claim
petition on two counts. It did not believe
the presence of the eye-witness who
deposed before it and that if the brother of
the deceased had seen the vehicle and given
the number to P.W.2, he should have been
examined on oath and why the F.I.R. was
silent qua the number of the vehicle ?

7. Appellants herein had examined
P.W.1 i.e. the widow of the deceased, P.W.2
an unknown person who was an eye
witness but unfortunately his name was
nowhere shown in the charge-sheet. P.W. 3
was the scribe of F.I.R. and also the
brother-in-law of the deceased who has
been examined on oath. The F.I.R. and the
charge-sheet and the site plan were on
record of the Tribunal.

8. Learned counsel for appellants has
submitted that Tribunal has misdirected
itself as the number though was not
mentioned, the charge-sheet shows that the
vehicle was involved in the accident, the
evidence of P.W.3 and 4 was disbelieved on
the ground that their presence at the spot
was very doubtful. It is further submitted
that the Tribunal even in absence of any
rebuttal evidence led by the respondents,
relied on the decisions of this High Court
so as to reject the claim petition of the
claimants.
The
decision
in
National
Insurance Co. Ltd. Vs. Smt. Saheen
Parveen and other reported in 2017 (1)
ACCD 161 ALD could not have been relied
by the Tribunal instead the Tribunal ought
to have relied on earlier decisions of this
High Court wherein it has been held that
trappings of Civil Courts should not be
strictly adhered to by the Tribunal. It is
further submitted that the owner No.1 had
seen that the vehicle from the custody of
CJM was released by owner during the
pendency of the criminal proceedings
lodged against him.

9. Learned counsel for the appellant
has relied on the decision of the decision of
the Apex Court in Kusum Lata and
Others Vs. Satbir and others, 2011 (1)
AICC 651, more particularly on para Nos.
8 and 9 which are 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
138 INDIAN LAW REPORTS ALLAHABAD SERIES
the number of the offending vehicle it was
also not unnatural.

9. There is no reason why the
Tribunal and the High Court would 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 factsituation 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."

10.

Learned
counsel
for
the
respondent has submitted that involvement
of vehicle in the accident has been rightly
held to be doubtful as the F.I.R. was lodged
against an unknown vehicle, the number of
the vehicle was not mentioned in the F.I.R.
The owner also contended that he had long
back sold the vehicle. It is further
submitted that the author of the F.I.R. was
not examined on oath and in the alternative,
it is further submitted that the evidence of
the witnesses is rightly not believed by the
tribunal as their presence is found to be
doubtful at the time of accident. It is further
submitted that the claimants have though
changed advocate have not examined the
real brother who was with the deceased and
has prayed for dismissal of this appeal.

11. Heard learned Advocates for the
litigating parties.

12. Recently in First Appeal From
Order No.866 of 2003, Smt. Santosh &
others versus United India Insurance
Company
and
others,
decided
on
4.3.2020, this Court has held as under:

"While interpreting the provisions
of Section 168 and 168 (4) of the Motor
Vehicle Act, 1988 (hereinafter referred as
the ''Act') were ignored by the Tribunal
while deciding the matter. The Tribunal
rejected the clam petition, though the
deceased was admitted in the hospital and
the F.I.R. clearly spelt out that it was due to
the involvement of the vehicle. This fact
was proved as the driver fled away with the
vehicle though G.D. entry also there with
police authorities. The post mortem report
also proved the fact that deceased died due
to accidental injuries. The vehicle tractor
trolley was proved to be involved in the
accident. The tribunal held that the driver,
owner and insurance of the motor cycle
was not joined as a party. The accident had
taken place on 25.05.2001 at 9.30 p.m. as a
result of involvement of tractor trolly which
was not disputed by owner or driver or
Insurance Company which has been proved
by cogent evidence just because there are
certain contradictions in the testimony of
the witness and because who got the
injured, in the hospital is not mentioned,
the claim petition was dismissed and being
the claimants' case is disbelieved. The fact
is that the charge sheet was filed pursuant
to F.I.R lodged is not just because in
dispute
the
tractor
trolly
was
not
confiscated detained on the spot it is held
that the vehicle was not involved in the said
accident. Recently the High court of
Gujarat in Joshi RajendrakumarPopatlal
Vs. ThakorRamnajiHamirji and Others,
reported in 2020 ACJ 365 has held that the
Tribunal should not decide claim petition
by taking hyper technical approach and
thereby frustrate the provision of beneficial
peace of legislation. The Apex Court in
Bimla Devi and Ors. Vs. Satbir Singh and
12 All. Avinash Jain (In F.I.R. Avinash Chand Jain) Vs. State of U.P. & Ors.
139
Ors. 2013 (4) SCC 345 has held that hyper
technicality should not be allowed to frustrate the
aim of beneficial peace legislation. In our case
hyper technicality of the learned Tribunal has
resulted into the flaw in his award. It was
established that the deceased had definitely met
with the accident involving two vehicles. It was
also proved that the accident was between the
tractor trolley and the motor cycle on which the
deceased was plying. The technical defect of
pleading should not have been made the basis of
rejection of the claim petition. I am supported in
my view by the decision of Apex Court in the
case of Gurdeep Singh v. Bhim Singh, (2013)
11 SCC 507, wherein provision of Section 173 of
the ''Act' read with Section 96 of the Code of
Civil Procedure,1908 will permit this court to
reverse the perverse findings reached by the
tribunal.
The Apex
Court
decisions
in
Sharanmma V. North-East Karnataka RTC,
(2013) 11 SCC 517. The judgment in
DulcinaFernandes V. Joaquim Xavier, First
Appeal No. 216 of 2004, decided on 14.11.2008
with also help the claimants. Therefore also the
appeal will have to succeed."

13. I am unable to accept the submission
of ld advocate appearing on behalf of Insurance
Company that the petition has been rightly
rejected as there was no mention of the number
of the vehicle in the FIR and that the deposition
of witness was also sketching.

14. The F.I.R. was lodged promptly
though the number of the vehicle was not
mentioned later on during the investigation it was
found that the vehicle was involved in the
accident. The charge-sheet was laid which has
not been doubted or challenged by anybody.
Written statement has been filed by owner
accepted that he has sold the vehicle. There is no
denial of accident. The witness who has filed the
charge-sheet
has
been
extensively
cross
examined by the advocate for the Insurance
Company and nothing could be made out that it
was a planted vehicle. The facts go to prove that
had it been a planted vehicle, the owner would
not have taken such a stand that his vehicle was
sold long back which shows that he has been
rightly charge-sheeted. The newly impleaded
owner has not even appeared before the Tribunal
or before this Court which goes to show that the
finding of fact of the Tribunal requires to be
upturned. I am supported in my view by the
decision of the Supreme Court in Mangla Ram
Versus Oriental Insurance Company Limited
and others, Laws(SC) (2018) 49 and also in the
case of Sunita and Others Versus Rajasthan State
Road Corporation and another, 2019(1) TAC
710 (SC) relied by counsel for appellant, wherein
the Apex Court has reiterated that trappings of
civil litigation be not strictly adhered to. I am
fortified in my view by the decision of the Apex
Court in Vimla Devi and others Vs. National
Insurance Company Limited and another,
(2019) 2 SCC 18.

15. Appeal is partly allowed.

16. The judgment and decree shall
stand quashed and set aside. The record be
sent back to the Tribunal for deciding on
the other issues which shall be decided on
or before 31st May, 2021 after affording
opportunity of hearing to all.
----------
(2020)12ILR A139
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.12.2020

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Misc. Bench No. 7894 of 2020

Avinash Jain (In F.I.R. Avinash Chand
Jain) ...Applicant
Versus
State of U.P. & Ors. ...Respondents