# Smt. Bindu Singh v. Hari Pratap Singh & Anr

- **Citation:** (2023) 5 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-23
- **Case number:** First Appeal From Order No. 404 of 2001
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-bindu-singh-v-hari-pratap-singh-anr-50235
- **Pages:** 11

## Headnote

A. Civil Law - Motor Vehicles Act, 1988 -
Section 173 - Tribunal rejected the claim
on the ground that claimant lodged FIR
after 2 and a half month, witnesses are
husband and wife and also belies medicolegal evidence-Rather, the medico-legal
evidence supports the claimant's case as
the injuries were noticed to be fresh , the
report is absolutely compatible with the
initial and emergency examination in the
case of a motor accident-The claimant's
case would not stand discredited, because
during treatment some other disease or
problem was discovered-Merely because
another injured on board the vehicle
alongside the claimant has not been
produced, would not render the claimant's
case suspect, where by evidence aliunde it
is proven-No reason to draw an adverse
inference
against
the
claimant-
The
matter remitted back to Tribunal to decide
afresh.(Para 1 to 32)

The appeal is partly allowed. (E-6)

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES
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. The said decision has also been
reiterated by High Court Gujarat in
R/Special Civil Application No.4800 of
2021 (The Oriental Insurance Co. Ltd. v.
Chief Commissioner of Income Tax (TDS)
decided on 5.4.2022.

17. 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 judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.

18. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private Ltd. v. Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation is to
safeguard the interest of the claimants. As
long period has elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.
----------
(2023) 5 ILRA 164
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2023

BEFORE

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

First Appeal From Order No. 404 of 2001

Smt. Bindu Singh ...Appellant
Versus
Hari Pratap Singh & Anr. ...Respondents

Counsel for the Appellant:
Sri Ram Singh, Sri Amit Kumar Sinha

Counsel for the Respondents:
Sri Amaresh Sinha, Sri Abubhav Sinha

A. Civil Law - Motor Vehicles Act, 1988 -
Section 173 - Tribunal rejected the claim
on the ground that claimant lodged FIR
after 2 and a half month, witnesses are
husband and wife and also belies medicolegal evidence-Rather, the medico-legal
evidence supports the claimant's case as
the injuries were noticed to be fresh , the
report is absolutely compatible with the
initial and emergency examination in the
case of a motor accident-The claimant's
case would not stand discredited, because
during treatment some other disease or
problem was discovered-Merely because
another injured on board the vehicle
alongside the claimant has not been
produced, would not render the claimant's
case suspect, where by evidence aliunde it
is proven-No reason to draw an adverse
inference
against
the
claimant-
The
matter remitted back to Tribunal to decide
afresh.(Para 1 to 32)

The appeal is partly allowed. (E-6)

(Delivered by Hon'ble J.J. Munir, J.)

This is a claimant's appeal under
Section 173 of the Motor Vehicles Act,
5 All. Smt. Bindu Singh Vs. Hari Pratap Singh & Anr.
165
1988 (for short, 'the Act') arising out of a
judgment and award passed by the Motor
Accident
Claims
Tribunal/
the
10th
Additional District Judge, Allahabad dated
02.09.2000 in MACP No.584 of 1996,
rejecting the claim petition.

2. A claim petition was instituted by
the claimant-appellant, Smt. Bindu Singh
(for short, 'the claimant') before the Motor
Accident Claims Tribunal/ the District
Judge, Allahabad on 04.09.1996 with the
case that on 15.06.1996, the claimant along
with her family members was travelling on
board Jeep, bearing registration No. UP70F-1028 from Allahabad (now Prayagraj)
towards Rewa. At about 9 o'clock in the
evening when the Jeep was moving on the
Allahabad-Rewa Road and had reached a
place called Village Barethi, within the
local limits of Police Station Kaundhiara,
District Allahabad, the Jeep driver, driving
the vehicle at a high speed and negligently,
hit a stationary truck on the rear side. The
truck was proceeding to Rewa and was
parked on the road at a place, which was
dark. The tail lamps of the truck were not
alight nor was it displaying any other signal
about its stationary position. The Jeep
driver owing to his negligence hit the truck
involving the left side of the Jeep in the
collision. The Jeep was badly wrecked due
to the impact. The claimant, who was
sitting on the left hand side of the Jeep,
sustained grievous injuries and her son
Sameer Kumar Singh, who was sitting by
her side and another Harish Chandra @
Lallan, sitting behind the claimant, also on
the left hand side, too sustained injuries.

3. The claimant asserts that she is an
educated woman and would work from
home under a scheme of the State
Government for informal education as an
Anudeshika. The said work was part time.
In addition, she would carry on business of
supplying milk on her own, take care of her
family as well as carry on agriculture. On
account of the injuries sustained in the
accident, the claimant has been left
incapable of performing any productive
work in future. The claimant has also
asserted that she was a healthy person, but
after the accident, she is no longer in a
position to work either for her family or
outside, as she did before. Her body has
been disfigured and the injuries have left
her a depressed woman. In her personal
life, she has to face difficulties and
reverses. She has suffered a mental and
physical setback on account of the injuries
which are likely to be there throughout her
life.

4. It is the claimant's case that after the
accident, the owner of the Jeep and the
Insurer did not take any action. She
reported the matter to the Superintendent of
Police,
Trans
Yamuna,
Allahabad
personally
appearing
before
him
on
23.08.1996. The Superintendent of Police
aforesaid ordered the competent Officer at
Police
Station
Kaundhiara,
District
Allahabad to lodge a report about the
accident by his order dated 23.08.1996.
Thereupon, Crime No.130 of 1996, under
Sections 279, 337 IPC, Police Station
Kaundhiara,
District
Allahabad
was
registered
on
01.09.1996,
where
the
claimant's husband, Ashok Kumar Singh is
the informant. Hari Pratap Singh was
impleaded as opposite party No.1 to the
claim petition, who is the owner of the Jeep
in question. He shall hereinafter be referred
to as 'the owner'. The United India
Insurance Company Limited, 5A, Sardar
Patel Marg, Civil Lines, Allahabad through
its Branch Manager are opposite party No.2
to the claim petition. The said Insurance
Company are the Insurers of the Jeep. The
166 INDIAN LAW REPORTS ALLAHABAD SERIES
Insurance Company is impleaded as
respondent No.2 to the appeal. The
Insurance
Company
aforesaid
shall
hereinafter be referred to as 'the Insurer'.

5.
A
written
statement
dated
30.07.1997 was filed on behalf of the
owner, bearing paper No.10-A. The owner
generally denied the allegations in the
claim petition. The owner came up with a
plea that the claimant's allegation that the
accident happened on account of the rash
and negligent driving by the Jeep driver is
incorrect and without basis. He denied the
factum of the accident in Paragraph No.11
of his written statement; and in Paragraph
No.12 more specifically. It was not denied
that the owner is the registered owner of
the Jeep in question. It was also not denied
that the Jeep aforesaid was insured with the
Insurer, where the policy was effective
from 17.12.1995 to 16.12.1996. It was also
pleaded that the vehicle, in any case, was
being driven by a duly authorized driver, of
course, maintaining the stance that the Jeep
in question was not involved in any
accident.

6. A separate written statement dated
10th July, 1998 was filed on behalf of the
Insurer, bearing paper No.17-A. The
allegations in the claim petition were
generally denied in the first part of the
Insurer's pleadings, and in the additional
pleas, it was averred that the registration
book, the driving licence and the route
permit of the vehicle in question, besides
other papers, have not been filed along with
the claim petition. There is a queer sentence
in Paragraph No.24 of the Insurer's written
statement, which says, quite without any
sense to it that 'The petition being
infructuous and ambiguous, is liable to be
dismissed'. The written statement being
signed by an Advocate, who would have
certainly gone through its contents, one
would not expect this kind of senseless
pleading. It is then pleaded on behalf of the
Insurer, on the same lines as the owner, that
no accident ever took place, involving the
Jeep in question. There is also a plea that
the vehicle was being driven against the
terms and conditions of the Insurance
Policy at the time of the accident. There is a
plea on behalf of the Insurer that the Jeep in
question was being driven as a taxi at the
time of the accident, and, as such, the claim
petition is not maintainable. There is also a
plea about non-joinder of necessary parties,
urged on foot of the fact that the owner and
the Insurer of the truck have not been
impleaded. It is averred that at the time of
the accident, the driver of the vehicle in
question did not hold a valid and effective
driving licence to drive the particular type
of vehicle. The Insurer has pleaded that,
therefore, they are not liable.

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

"1. Whether on the date of the
alleged accident i.e. 15.06.1996, the driver
of the vehicle, bearing registration No. UP70F-1028
caused
the
accident
(with
vehicle,
bearing
registration
No.
CPA/3812) on account of driving the
vehicle at a high speed and negligently? If
yes, its effect?

2. Whether the driver of the said
Jeep, bearing registration No. UP-70F-1028
at the time of the accident, did not possess
a valid driving licence? Effect?

3. Whether the Jeep was being
driven in contravention of the terms and
conditions of the Insurance Policy? If yes,
its effect?
5 All. Smt. Bindu Singh Vs. Hari Pratap Singh & Anr.
167

4. The claimant is entitled to
receive what amount of compensation and
from which of the opposite party?

5. Whether the claim petition is
bad for non-joinder on account of nonimpleadment of the owner of vehicle No.
CPA/3812? Effect?"

8. The claimant entered the witnessbox testifying in support of her case as PW1. Her husband, Ashok Kumar Singh was
examined as PW-2. Through a list of
documents, paper No.20-Ga, a carbon copy
of the FIR dated 01.09.1996, a copy of the
application dated 02.08.1996 moved before
the Insurer, a carbon copy of the
information sent to the S.S.P., Allahabad on
23.08.1996 and a cash-memo showing
purchase of medicines etc. were filed. The
owner filed a photostat copy of the driver's
driving licence and Insurance Policy,
besides the registration certificate of the
Jeep.

9. This Court notices that apart from
the summary of evidence which the
Tribunal has noted in its judgment, there
are also documents on record, such as the
ultrasound scan report and injury report
dated
16.06.1996
issued
by
the
Emergency
Medical
Officer,
S.R.N.
Hospital, Allahabad, noting three injuries
on the claimant's person with the remark
that
the
injuries
be
kept
under
observation
and
advising
an
x-ray
examination. There are also x-ray plates
on record from a certain Raj Nursing and
Maternity Home. In addition, there is a
prescription dated 16.09.1996 by Dr. A.K.
Pradhan,
Plastic
and
Reconstructive
Surgeon, Varanasi, noting it to be a case
of accidental injury, already treated at
Allahabad. There are prescriptions by
other doctors as well.

10. The Tribunal in returning its
findings on Issue No.1 has taken note of the
fact that the Jeep in question being
involved in the accident or the accident
ever happening involving the vehicle has
been denied. It has been remarked that the
burden to prove the accident and the
injuries sustained there, would, therefore,
be upon the claimant. The Tribunal has
noted that the claimant has testified herself
as PW-1 and her husband, Ashok Kumar as
PW-2. The Tribunal has remarked that both
the witnesses are interested witnesses. It
has been noted that both witnesses are said
to be travelling on board the Jeep in
question on 15.06.1996 in the evening
hours at 9 o'clock when the accident is said
to have happened, involving truck No.
CPA/3812. The Tribunal has remarked that
a prompt FIR about the accident has not
been lodged by the driver of either vehicle.
Ashok Kumar Singh has made his first
written report on 01.09.1996, that is to say,
after about two and a half months of the
accident. No reason has been shown
explaining this delay.

11. The Tribunal has observed that the
natural course of action after an accident is
that the driver or the injured would get an
FIR lodged with the Police. The delay in
lodging the FIR, therefore, leads to a
situation, in the Tribunal's opinion, where
the claimant's testimony in the witness-box,
does not receive any support from it. The
Tribunal has noted that PW-1 in her
testimony has said that she was proceeding
along with her family to Satna, Madhya
Pradesh and PW-2, Ashok Kumar too has
also said that the family were proceeding
from Allahabad to Satna. The Tribunal has
remarked that in the FIR dated 01.09.1996
lodged with the Police by Ashok Kumar
Singh, it has been mentioned that the
family were proceeding from Allahabad to
168 INDIAN LAW REPORTS ALLAHABAD SERIES
Maihar. By contrast, the Tribunal observes
that in the claim petition it is stated that the
family were proceeding from Allahabad to
Rewa. The Tribunal has opined that this is a
contradiction which makes the claimant's
case suspect.

12. PW-2, Ashok Kumar has also been
noted by the Tribunal to have said in his
testimony
that
apart
from
the
two
witnesses, their family members were also
travelling on board the Jeep and that in the
accident, his wife and Harish Chandra
alone sustained injuries. However, no
injury report relating to Harish Chandra's
injuries has been placed on record. Harish
Chandra has also not been examined as a
witness on behalf of the claimant. The
Tribunal has opined that the claimant has,
thus, not produced a material and important
witness.

13. The Tribunal has gone on to say
that the claimant has said said in her
testimony that after the accident, she lost
consciousness and was examined at the
S.R.N. Hospital, Allahabad on 16.06.1996
at 1.05 a.m. The Tribunal has observed that
the medical examination report shows only
three injuries, but does not record the fact
that the claimant had fainted. Noting the
injuries, the Tribunal records that according
to the medico-legal report, the claimant had
an injury between her forehead and cheek,
measuring 1.5 cm x 3 cm, which was an
open wound. She had a bone deep wound
on her chin - 8 x 2cm, and a swelling on
her chest 25x25 cm. The report, according
to the Tribunal, notes that all injuries are
simple in nature, caused by a blunt object.
The injury report does not record the fact
that the injuries have been sustained in a
motor accident. It has been remarked that at
the
time
of
undergoing
medical
examination, the claimant had not said that
she has sustained injuries in a motor
accident. The Tribunal has held that in view
of all these facts, the medico-legal evidence
does not support the claimant's case about
the accident.

14. The Tribunal has then gone on to
examine the cause for the delay assigned by
the claimant in lodging the FIR. It has been
noted that it is the claimant's case that the
owner of the vehicle in question had
promised the claimant that he would ensure
that the Insurer paid the compensation due
and that it is for the said reason that the
claimant did not lodge an FIR. The
Tribunal has taken note of the claimant's
submission that the aforesaid assertion by
the claimant in the claim petition has not
been specifically denied by the respondents
in their written statements. There is
apparently no denial of the assertion. The
Tribunal, however, has remarked that the
provisions of Orders V and VI of the Code
of Civil Procedure do not apply proprio
vigore to the trial of a claim under the Act.
As such, non-traverse of the said plea in the
Tribunal's
opinion
is
not
of
much
consequence.

15. The Tribunal has remarked that the
owner
in
his
additional
pleas
has
specifically denied the involvement of the
vehicle in the accident. On this state of
pleadings if the claimant wanted to prove
that she had laid a claim before the Insurer,
burden lay upon her to prove it. The
Tribunal has observed that to discharge the
said burden, the claimant has filed a copy
of an application made before the Insurer
by Ashok Kumar on her behalf, but the said
application, bearing paper No.20-Ga/4 has
not been proved in accordance with law.
There is a remark by the Tribunal that this
application has not been made to the
Insurer by the owner, and, therefore, it
5 All. Smt. Bindu Singh Vs. Hari Pratap Singh & Anr.
169
cannot be inferred that the owner had
promised the claimant that he would secure
compensation for her from the Insurer.
There is then a mixed up remark by the
Tribunal saying that if in a situation of this
kind, the claimant wanted to benefit out of
the fact, she had to specially prove it.

16. To all seeming the fact mentioned
in this finding, which the Tribunal speaks
about, appears to be about the claimed
promise by the owner that he would ensure
that the Insurer paid compensation to the
claimant. The Tribunal next remarks that
the said plea by the claimant is not liable to
be accepted in the absence of evidence. The
Tribunal says that it is noteworthy that
Ashok
Kumar,
who
had
made
the
application to the Insurer, was examined as
PW-2, but he has not proved the said
application. Therefore, the claimant's case
pleaded and her evidence are at variance.

17. The next reason to disbelieve the
claimant's case assigned by the Tribunal is
that the claimant was sitting not on the
front seat, but the one behind it, whereas
the owner of the vehicle in question and the
claimant's son was sitting on the front seat,
next to the driver. It is remarked by the
Tribunal that the claimant does not speak
about the injuries sustained by the owner
and her son, Sameer, who were sitting on
the front seat, next to the driver, and it is
unnatural that they would not sustain
injuries. The Tribunal has proceeded to
hold that the aforesaid fact shows that the
claimant's testimony is one based on
imagination.

18. It is next observed by the Tribunal
that PW-2, Ashok Kumar in his testimony
says that on the front seat, the driver, the
owner, Harish Chandra and another man,
were sitting, but none of these men have
been produced in evidence by the claimant.
It is also observed that the stationary truck's
driver, cleaner or other person, who had
witnessed the accident, have not been
produced as witnesses too. The Tribunal
has opined that on the basis of the said
evidence, it cannot be held that the Jeep in
question was involved in the accident, that
is alleged to have happened on 15.06.1996
on account of the driver's mistake and
negligence, and wherein the claimant
sustained injuries.

19. The Tribunal has not ended its
opinion on Issue No.1 with the aforesaid
remark, but has gone ahead to consider
some unnecessary submissions by the
learned Counsel appearing for the Insurer.
The Tribunal has noted the submission of
the learned Counsel for the Insurer to the
effect that the claimant is habitual in laying
claims for compensation. In support of his
submission, the learned Counsel for the
Insurer before the Tribunal had come up
with a case that the claimant had purchased
cattle after securing a loan. She had shown
the cattle to have died and realized
compensation
from
the
Insurance
Company. Papers in regard to loss on
account of cattle heads dying have been
noticed as paper Nos. 20-Ga/13 to 20Ga/16.

20. There is then note of another
argument by the learned Counsel for the
Insurer, which says that papers relating to
treatment undertaken by the claimant at the
Jeevan Jyoti Hospital relate to breast cancer
and the purchase vouchers for medicines
also relate to drugs, which are meant for
treatment of cancer. The Tribunal has
remarked that there is nothing on record to
show that the claimant has suffered from
cancer on account of the injuries sustained
in the accident. If the claimant wanted to
170 INDIAN LAW REPORTS ALLAHABAD SERIES
prove that she suffered cancer on account
of the injuries, burden lay upon her to
prove it by medical evidence. The Tribunal
has remarked that apparently the claimant
has
not
suffered
breast
cancer
in
consequence of the accident. On the basis
of these added remarks, the Tribunal has
reiterated its opinion that the alleged
accident on 15.06.1996 involving the Jeep
in question never happened.

21. Issue No.2 has been decided
against the Insurer as also Issue No.3, both
for want of evidence being led by the
Insurer. Issue No.5 has also been decided
against the owner and the Insurer holding
that the owner and the Insurer of the truck
are not necessary parties. Issue No.4 has
been decided against the claimant, being a
sequitur to the findings on Issue No.1,
holding that the accident never happened.

22. Heard Mr. Amit Kumar Sinha,
Advocate holding brief of Mr. Ram Singh,
learned Counsel for the claimant and Mr.
Anubhav Sinha, Advocate holding brief of
Mr. Amaresh Sinha, learned Counsel for
the Insurer. No one appears on behalf of the
owner. The lower court records have been
perused.

23. The Tribunal has commenced
appreciation of the testimony of PW-1 and
PW-2 on a note of suspicion for no good
reason. The Tribunal has observed that both
the witnesses are interested witnesses,
though not much is said thereafter. This
remark of the Tribunal seems to have
coloured its vision in appreciating the
testimony of the two eye-witnesses. PW-1
is one of the injured and she has testified in
intricate detail about the manner in which
the accident happened, which has been
largely corroborated by the testimony of
PW-2, Ashok Kumar, her husband, also a
passenger on board the ill-fated vehicle.
There is no principle or even a rule of
prudence by which the testimony of two
passengers on board an ill-fated vehicle is
to be held suspect merely because they are
man and wife and one of them is the
claimant. It is the claimant's case that she
was travelling on board the ill-fated vehicle
along with her family. In her testimony, she
has given the details of the family
members, who were travelling. It includes
her husband, PW-2, Ashok Kumar, besides
her two sons. In the circumstances, the
Tribunal was not right in suspecting the
testimony of PW-1 and PW-2 for reason
that they are man and wife.

24. The next finding, which is more
effectual than the first inchoate one, is that
the FIR having been lodged on 01.09.1996
by the claimant's husband, Ashok Kumar
Singh with no report being lodged about
the accident earlier, does not lend support
to the claimant's case. This finding by the
Tribunal, though true about the fact that the
FIR was registered two and a half months
after the occurrence, is not sustainable. It is
imperative to note that in Paragraph No.6
of the claim petition under Column No.23,
there
is
a
specific
averment
that
information with the Police was not lodged,
because the owner and his son R.K.
Jaiswal, who are men of high reputation in
the locale, had assured the claimant and her
husband that they would ensure payment of
compensation to the claimant, which later
on they did not fulfil; and this averment has
not been denied or rebutted in the least
measure in the written statement filed on
behalf of the owner, or for that matter the
Insurer. The Tribunal has made small of
this non-traverse by saying that the
principles of Orders V and VI CPC do not
apply proprio vigore to proceedings before
the Tribunal. Non-denial of a material fact,
5 All. Smt. Bindu Singh Vs. Hari Pratap Singh & Anr.
171
whether in proceedings before a Court of
civil jurisdiction governed by the Code of
Civil Procedure or otherwise, would lead to
the same result. A non-traverse leads to the
inference that some kind of a promise was
made by the owner and his son to the
claimant that they would ensure payment of
compensation. If in those circumstances, in
a case of injury, an ordinary man does not
promptly lodge an FIR, where there is other
tangible evidence about the happening of
the accident, the delay would not work to
discredit the claimant's case. The lodging of
an FIR is not a pleasant task for an ordinary
man. It is common experience that unless
the offence is serious, men of the world
avoid interacting with the Police to lodge
informations, though that is not the
explanation here. In the opinion of this
Court, it is certainly a relevant factor to
judge the conduct of the claimant in not
promptly reporting the accident to the
police, in the face of a promise by the
owner and his son that compensation would
be ensured to her for the injuries. The FIR,
in the opinion of this Court for the said
reason, cannot be discounted altogether,
though its probative value may be far lesser
than an information promptly lodged with
the Police.

25. The next finding, which the
Tribunal has recorded to disbelieve the
claimant's case is that in their testimony
PW-1 and PW-2 have said that they were
proceeding from Allahabad to Satna
whereas in the FIR lodged by PW-2 on
01.09.1996, it is alleged that the claimant
and her family were proceeding to Maihar;
as against this in the claim petition the
averment
is
that
the
claimant
was
proceeding to Rewa. All this has been held
to be a contradiction that renders the
claimant's case undependable and suspect.
A perusal of the testimony of PW-1 and
PW-2, no doubt says that the family were
proceeding from Allahabad to Satna, but to
find a contradiction in it with reference to
the FIR, because it mentions that the
claimant and her family were proceeding to
Maihar, is based on a pedantic reading of
the evidence instead of one that is realistic.
Maihar is a Tehsil of District Satna in
Madhya Pradesh, reputed for its position as
a place of pilgrimage. If, therefore, the
claimant and her witnesses mentioned their
destination as Satna in her testimony, but
PW-2 has described it as Maihar in the FIR
lodged, it may not be a contradiction at all.
It would be a contradiction, if the
respondents had confronted PW-2 with
reference to his previous statement in the
FIR, and he had not explained satisfactorily
why
the
destination
was
differently
described. Since that was not done, the
evidence has to be liberally viewed in
favour
of
the
claimant,
unless
the
discrepancy be inexplicable. It has to be
liberally viewed, because after all a motor
accident claim is a proceeding under a
beneficial piece of legislation, which is not
to be tried with the stickler approach of a
money suit.

26. So far as the pleading in this
regard is concerned, the Tribunal has
observed in manifest error that in the claim
petition, the claimant has asserted that the
family were proceeding from Allahabad to
Rewa. In Column No.9, the place of
accident has been mentioned as 'AllahabadRewa Road'. In Column No.26, where the
case has been descriptively set out, the
pleading is: 'जीप वाहन सं0 UP-70F-1028 जजसमें
याजिनी अपने परिवाि के सदस्यों के साथ इलाहाबाद से िीवा की
तिफ यात्रा कि िही थी।'. The said plea does not
show it to be a case that the claimant has
asserted that she and her family were
proceeding from Allahabad for destination
Rewa. It rather says that the vehicle was
172 INDIAN LAW REPORTS ALLAHABAD SERIES
moving towards Rewa. It is a fact of which
judicial notice must be taken that in order
to proceed to Maihar, which is located in
District Satna, one has to take the
Allahabad-Rewa Road, reach Rewa first
before
entering
Tehsil
Maihar,
the
pilgrimage being located 42 kilometers
from
Satna.
Reading
the
evidence
holistically, one can unmistakably infer that
there is absolutely no contradiction in the
claimant's
testimony
about
their
destination. In the claim petition, it may be
a contextual reference to Rewa and
elsewhere an incomplete reference to the
destination. The Tribunal has completely
lost sight of these facts and lost touch with
reality while evaluating the claimant's
evidence on this score. The finding of the
Tribunal based on the contradiction about
the destination cannot be sustained.

27. The other reason to disbelieve the
claimant's testimony about the accident
ever happening is that the claimant has not
produced
Harish
Chandra,
the
other
passenger on board besides her, who had
sustained injuries. It has been held that
failure to produce the aforesaid witness
leads to withholding important evidence.
From this, though not said explicitly, an
adverse inference has been drawn. The said
finding is also not sustainable. Merely
because another injured on board the
vehicle alongside the claimant has not been
produced, would not render the claimant's
case suspect, where by evidence aliunde it
is proven. Also, there is no reason to draw
an adverse inference against the claimant,
because another injured on board the illfated vehicle has not been produced as a
witness.

28. It is next held by the Tribunal that
the claimant's case is belied by medicolegal evidence. It is remarked that the
claimant has said in her testimony that she
had fainted at the time of the accident, but
the medical report from S.R.N. Hospital
dated 16.06.1996 recorded at 1.05 a.m.
does not say that the claimant was
unconscious. Lapse on the part of a doctor
of this kind cannot be read to disbelieve
that the claimant never sustained injuries.

29. The further feature of this finding
about the medico-legal evidence is that the
Tribunal has, after a description of the
injuries, held that all injuries were found to
be simple in nature, caused by a hard and
blunt object. The said part of the finding
suffers from an error apparent on the face
of the record. A perusal of the report dated
16.06.1996, authored by the Emergency
Medical
Officer,
S.R.N.
Hospital,
Allahabad in original (which a document
torn at some places) clearly shows in the
''opinion' that the injury was caused by a
hard and blunt object, which was to be kept
under observation with an advice for x-ray
examination. The duration is fresh. The
report further reads that the patient be
admitted. It also says that the Police and
RSO were informed. All this part of the
report has been utterly misread by the
Tribunal. The medico-legal report nowhere
says that the injury is simple. Rather, it has
opined it to be one that was to be kept
under observation with an advice for x-ray
examination. The Police too have been
informed
showing
the
medico-legal
character of the injuries. If, therefore, the
Doctor has omitted to mention that the case
is one relating to a motor accident, the
omission again is by the Doctor and not of
any consequence to the claimant. The
Tribunal, therefore, has erred in holding
that the medico-legal report not mentioning
the fact that the injuries were sustained in a
motor
accident
casts
doubt
on
the
claimant's case. The concluding part of the
5 All. Smt. Bindu Singh Vs. Hari Pratap Singh & Anr.
173
finding by the Tribunal which says that the
claimant's case is not supported by medicolegal evidence, for all the reasons above
indicated, is not at all sustainable. Rather,
the medico-legal evidence supports the
claimant's case as the injuries were noticed
to be fresh and the Doctor instructed the
Police to be informed. The injuries were
kept under observation and advised for xray examination. The report is absolutely
compatible with the initial and emergency
examination in the case of a motor
accident. It is, accordingly, held.

30. The Tribunal has also discredited
the claimant's case, because an application
dated 02.08.1996 moved before the Insurer
for
claiming
compensation
by
the
claimant's husband, Ashok Kumar Singh,
though filed on record, has not been
proved. Even if the said document has not
been proved by PW-2 in the witness-box, it
can be excluded from evidence, but that by
itself would not discredit the claimant's
case, which is otherwise well proved by the
parole evidence of both witnesses. Both the
witnesses, who were on board the vehicle,
are broadly consistent about the evidence,
which is supported not only by the medicolegal examination done initially, but by
other medical evidence. There is a
treatment-cum-prescription memo dated
16.09.1996 by Dr. A.K. Pradhan, Surgeon,
who has mentioned in his prescription that
the case is one of accidental injury. The
said prescription is by a Plastic Surgeon,
who
was
consulted
later
on
for
reconstructive surgery. The patient has been
for the most part treated at Raj Nursing
Home, Allahabad and also NEMA Eye
Hospital, Varanasi. The prescription by the
Doctor at the NEMA Eye Hospital again
mentioned it to be a case of accident. PW-1
has testified in her examination-in-chief
that she was treated from 16.06.1996 to
30.06.1996
at
Raj
Nursing
Home,
Allahabad and thereafter as an outdoor
patient. It is mentioned that Dr. A.K.
Pradhan of Dr. Shiv Prasad Gupta Hospital,
Varanasi also treated her. The medical
prescriptions and the medicine vouchers on
record from Raj Nursing Home and the
prescription from Dr. Pradhan prove that
the claimant was in the first instance treated
for her injuries and then undertook
treatment for some reconstructive facial
surgery. She also had to undergo some
treatment in respect of her eyes. All this
evidence would go to show that the
accident, which the claimant asserts was a
reality. It is not a farce as the Tribunal has
held. The remarks by the Tribunal that the
claimant was treated for cancer are
completely misplaced. The medical records
show that there was some kind of a lump
somewhere that was suspected and an
FNAC advised. The findings of the
Tribunal that she was prescribed medicines
for breast cancer do not appear to be
justified
at
all.
In
any
case,
the
development of a subsequent problem or a
chance discovery alongside the treatment
for injuries suffered in consequence of the
accident, cannot benefit the owner or the
Insurer. The claimant's case about the
accident and the injuries sustained in it,
would not stand discredited, because during
treatment some other disease or problem
was discovered, which too was treated, if
that be the case.

31. In the considered opinion of this
Court, the findings recorded by the
Tribunal on Issue No.1 cannot be sustained.
The findings on the the said issue are set
aside. Issue No.1 is, accordingly, answered
in favour of the claimant and against the
owner and the Insurer. Issues Nos.2, 3 and
5 have already been answered in favour of
the claimant by the Tribunal. These need
174 INDIAN LAW REPORTS ALLAHABAD SERIES
not be examined further either by this Court
or by the Tribunal in consequence of the
order that this Court proposes to make.
This leaves this Court with the fourth
Issue,
about
which
there
are
no
comments by the Tribunal at all. The
issue has not at all been examined in
consequence of the findings on Issue
No.1. Since the findings on Issue No.1
have been reversed by this Court, Issue
No.4 is required to be determined by the
Tribunal in the first instance and the
quantum of the award decided on the
basis of the evidence of record. Parties
would be at liberty to lead further
evidence, if they so desire on the issue
of quantum alone. No other matter is
required to be re-determined by the
Tribunal.

32. In the result, this appeal succeeds
and is allowed in part. The impugned
judgment and award dated 02.09.2000 is
set aside. The matter is remanded to the
Tribunal for hearing parties afresh on Issue
No.4 and passing an award in accordance
with law determining just compensation.
The matter shall be decided afresh within a
period of three months next from the date
of receipt of certified copy of this judgment
by the Tribunal.

33. Let the record be sent down at
once to the Tribunal which now has
jurisdiction in the matter.
----------
(2023) 5 ILRA 174
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2023

BEFORE

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

First Appeal From Order No. 560 of 1997

Smt. Malti Devi & Anr. ...Appellants
Versus
Virendra Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri Madhav Jain

Counsel for the Respondents:
Sri Amaresh Sinha, Sri Amresh Singh, Sri
Anubhav Sinha

A. Civil Law - Motor Vehicles Act, 1988 -
Section 173 - challenge to-quantum of
compensation of a minor child-Tribunal
considered notional income of 14 years
deceased child to be 300/-p.m and
ultimately
assessed
the
total
compensation to be 52,000/- with 12%
interest-The accident occurred in the year
1994
therefore
the
amount
of
Rs.
1,56,000/- would be just and proper as
held by Apex Court in catena of decisionsMore so, rate of interest is too, it is
modified upto 7.5% after making a
substantial enhancement in the award
amount. (Para 1 to 13)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Kurvan Ansari @ Kurvan Ali Vs Shyam Kishore
Murmu (2021) 0 SC 687

2. R.K.Malik & anr.. Vs Kiran Pal & ors. (2009) 0
SC 1113

3. Sarla Dixit Vs Balwant Yadav (1996) 3 SCC
179

4. Late Wadhwa Vs St. of Bih. (2001) 8 SCC
197

5. Kishan Gopal & anr.. Vs Lala & ors. (2014) 1
SCC 244

6. NICL Vs Mannat Johal & ors. (2019) 2 TAC
705 SC