# Smt. Maneesha Dubey & Ors v. Sri Aakash Gupta & Anr

- **Citation:** (2022) 5 ILRA 1270
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-03
- **Case number:** First Appeal From Order No. 2104 of 2019
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-maneesha-dubey-ors-v-sri-aakash-gupta-anr-48479
- **Pages:** 4

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Section - 173- Appeal - Challenging the
rejection order of Claim Petition - in alleged an
Accident deceased was died due to fatal injuries
- FIR was lodge with highly delay of one year -
there were no any information was St.d in FIR
regarding involvement of any Car as well as not
in the Medico-Legal-Report of the Hospital
where the deceased was admitted - testimony
of eye witness is doubtful because there were
no any evidence or reason given by the eye
witness why he did not tell the number of Car at
the time of accident - after threadbare analysis
of evidence on record - learned Tribunal has
rightly appreciated the evidence and rejected
the Claim - Appeal sans merit and is dismissed.
(Para - 8, 9, 10, 11)

Appeal Dismissed. (E-11)

List of Cases cited:-

## Text

1270 INDIAN LAW REPORTS ALLAHABAD SERIES

vii.
Loss
of
dependency:
Rs.15,750 x 18 = Rs.2,83,500/-

viii. Amount under non pecuniary
heads : Rs 50,000/-

ix.
Total
compensation
:
Rs.3,33,500/-

10. As far as issue of rate of interest is
concerned,
the
Tribunal
has
granted
conditional interest at the rate of 9% which
is bad. The claimants would be entitled to
6% rate of interest from the date of filing of
the claim petition till the date of award.
However, from the date of filing of this
appeal and till the delay was condoned, it
would be 3% and from the date the delay is
condoned, it would be 6% till the amount is
deposited.

11. No other grounds are urged orally
when the matter was heard.

12. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount within a period of 12 weeks from
today with interest as directed above. The
amount already deposited be deducted from
the amount to be deposited.

13. 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
20 years have elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.

14. This Court is thankful to the
counsel for getting this matter decided.
----------
(2022)05ILR A1270
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2022

BEFORE

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

First Appeal From Order No. 2104 of 2019

Smt. Maneesha Dubey & Ors. ...Appellants
Versus
Sri Aakash Gupta & Anr. ...Respondents

Counsel for the Appellants:
Sri Ram Tiwari

Counsel for the Respondents:
Sri Vijay Prakash Mishra

Civil Law - Motor Vehicles Act, 1988 -
Section - 173- Appeal - Challenging the
rejection order of Claim Petition - in alleged an
Accident deceased was died due to fatal injuries
- FIR was lodge with highly delay of one year -
there were no any information was St.d in FIR
regarding involvement of any Car as well as not
in the Medico-Legal-Report of the Hospital
where the deceased was admitted - testimony
of eye witness is doubtful because there were
no any evidence or reason given by the eye
witness why he did not tell the number of Car at
the time of accident - after threadbare analysis
of evidence on record - learned Tribunal has
rightly appreciated the evidence and rejected
the Claim - Appeal sans merit and is dismissed.
(Para - 8, 9, 10, 11)

Appeal Dismissed. (E-11)

List of Cases cited:-

1. Ravi Vs Badri Narayan & ors. (2011 (0)
Supreme (SC) 201),
5 All. Smt. Maneesha Dubey & Ors. Vs. Sri Aakash Gupta & Anr.
1271
2. Vimla Devi & ors. Vs National Insurance Co.
Ltd. & anr. (2019 (2) SCC 186).

(Delivered by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the
claimants have challenged the judgment
and order dated 24.10.2018, passed by
Motor
Accident
Claims
Tribunal
(MACT)/V-Additional
District
Judge,
Kanpur Nagar (herein after referred to as
'the Tribunal') in MACP No.470 of 2014
(Smt.Manish Dubey and others vs. Ashish
Gupta and another), by which the claim
petition of petitioners was rejected by the
Tribunal.

2. Brief facts of the case are that this
claim petition is filed on account of death
of deceased Rajeev Dubey in road accident.
It is averred in claim petition that on
17.6.2012 at about 8:00 p.m., deceased
Rajeev Dubey was going from his home to
Sachan Guest House by motorcycle bearing
No.UP-78-CL/5855 and when he reached
Govind
Homeo
Hall,
a
Hyundai-car
bearing No.UP-78-AK/9049 came from
behind, which was being driven very rashly
and negligently by its driver, dashed the
motorcycle of the deceased from behind. In
this accident, deceased sustained fatal
injuries and died during the treatment.

3. Respondent No.1-Akash Gupta
filed written statement and submitted that
he was driving the aforesaid car at the time
of accident and was having valid drivinglicence. It was also stated that owner and
insurer of motorcycle were not made party.

4. Respondent No.2-M/s Sri Ram
General Insurance Co.Ltd. also filed its
written statement and submitted that
accident did not take place by the aforesaid
Hyundai-car. This car is falsely planted in
order
to
secure
the
amount
of
compensation. Hence, in this way, the
involvement of car was vehemently denied
by the Insurance Company.

5. Learned Tribunal, while deciding
Issue No.1, relating to the factum of
accident, held that accident took place due
to dashing the motorcycle by the deceased
in divider of the road and motorcycle was
not hit by car from behind. With these
observations, learned Tribunal rejected the
claim petition. Hence, this appeal.

6. Heard Shri Ram Tiwari, learned
counsel for the appellants-claimants, Shri
Vijay Prakash Mishra, learned counsel
appearing for the respondent-Insurance
Company and perused the record.

7. Learned counsel for the claimants
submitted that Tribunal has failed to
appreciate the evidence on record, the fact
of involvement of car in accident is verywell proved by the cogent evidence, but
learned Tribunal did not agree to it. It is
also submitted that PW2 was the eyewitness of the accident and he has clearly
stated that he saw the accident, which was
caused by the car in question. It is strongly
submitted that the charge-sheet is filed
against the driver of the car by the police
after thorough investigation and this fact is
ignored by learned Tribunal. It is submitted
that initially a closure-report was filed by
Investigating Officer, but he subsequently,
filed the charge-sheet after collecting the
evidence and competent magistrate has also
taken cognizance in the matter. He next
submitted that it will be presumed that
official and judicial acts were performed in
due course unless proved otherwise.

8. Learned counsel for the respondent
No.2-Insurance Co. submitted that FIR of
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
this accident is highly belated; it was
lodged after one year of the accident. He
further submitted that just after the
accident, injured/deceased was taken to
Regency Hospital and in Medico-Legal
Report of that hospital, it is clearly
mentioned that motorcycle was dashed in
the divider of the road. It is also submitted
that after the death of deceased, a written
information of the accident was given by
Shravan Kumar Shukla, who is brother-inlaw of the deceased, to the Police StationBarra, District-Kanpur Nagar, and he has
written in aforesaid report/information that
the motorcycle of the deceased was dashed
with divider, due to which the deceased
sustained head-injuries. He was admitted
on 17.6.2012, the day of accident in
Regency Hospital wherein he died on
25.6.2012 and in this matter, nobody is
responsible. Hence, it is evident that the car
is falsely involved in the said accident after
nearly one year of the accident otherwise
the eye-witness says that he remained
present on the spot of the accident about
1/2 hour and saw the number of the car
also, but this number was not told to the
family members of the deceased because if
it would have been so, then the first
information report should have been lodged
just after the accident.

9. Learned counsel for the appellant
relied on the judgments in the case of Ravi
vs. BadriNarayan and others, 2011 (0)
Supreme(SC) 201 & Vimla Devi and
others vs. National Insurance Co.Ltd. and
another, (2019) 2 SCC 186. These two
judgments are on the point that delay in
lodging the FIR in claim-cases should not
be the ground of dismissal of the petition,
but in the case in hand, the facts are
entirely different. In this case, the FIR was
lodged after 10 months of the accident, and
it shows the fabrication because in MedicoLegal Report of the hospital, it is
mentioned that the motorcycle of the
deceased dashed in the divider. After death
of
the
deceased,
his
brother-in-law
informed the police at P.S.-Barra, DistrictKanpur Nagar that deceased sustained
head-injuries on account of being his
motorcycle dashed in the divider due to
which he died. In the aforesaid two
documents, there is no mention of the
involvement of any car in the accident as
stated in the FIR, which is lodged after 10
months of the accident.

10. Perusal of the record also shows
that the so-called eye-witness, namely, PW2
has said in his evidence that he saw the
accident and remained present on the spot for
1/2 an hour. It is also said by him that the
family members of the deceased reached on
the spot, but there is no such evidence or
reason as to why he did not tell the number of
the car to them when he claims that he saw
the number of the car. Although, charge-sheet
submitted in this matter against the driver of
said car after filing the closure-report earlier,
but in spite of this fact, the Medico-Legal
Report of the Regency Hospital and the
information given to the Police Station-Barra,
District-Kanpur Nagar by the brother-in-law
of the deceased cannot be ignored.

11. Hence, after threadbare analysis of
evidence on record, we are of the considered
view that learned Tribunal has rightly
appreciated the evidence on record and we
are in full agreement with the conclusion
expressed by the learned Tribunal that
accident
took
place
by
dashing
the
motorcycle in divider of the road and it was
not occurred due to hitting the motorcycle by
car from behind.

12. Hence, the appeal sans merit and
is
dismissed,
accordingly.
5 All. Smt. Shalinee Dubey @ Radhika Dubey Vs. Abhishek Tripathi @ Gopal
1273
----------
(2022)05ILR A1273
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J

Civil Misc. Transfer Application No. 704 of 2021

Smt. Shalinee Dubey @ Radhika Dubey
 ...Applicant
Versus
Abhishek Tripathi @ Gopal
 ...Opposite Party

Counsel for the Applicant:
Sri Chaman Aara, Sri Shiv Vilas Mishra

Counsel for the Opposite Party:
Sri Shreesh Srivastava

(i) Civil Law - Civil Procedure Code, 1908 -
Section 24, Criminal Procedure Code,1973
- Section 125 - Hindu Marriage Act, 1955 -
Sections 13(a)(i)a & 24 - Domestic
Violence Act, 2005 - Section - 12 - Transfer
Application - for transfer of Divorce Petition from
one city to anr. - in which case Applicant
appeared and duly received maintenance U/s 24
of Act, 1955 on month to month basis - in the
light of judgment of Hon'ble Apex Court i.e.
Abhilasha Gupta's case - no any interference is
warranted on the ground of distance & financial
stress specially wherein the proceedings are
pending at the final stage - hence transfer
application is liable to be dismissed. (Para - 5,
7)

(i) Civil Law - Civil Procedure Code, 1908 -
Section
24
-
Criminal
Procedure
Code,1973 - Section 125 - Hindu Marriage
Act, 1955 - Sections 13(a)(i)a & 24 -
Domestic Violence Act, 2005 - Section - 12
- Transfer Application - in case of threat
perception - no interference is required for
transferring the Divorce petition - liberty is
given to the applicant to move application
before SSP for security - only for the date of
appearance - direction accordingly. (Para - 9)

Transfer Application Dismissed. (E-11)

List of Cases cited:-

1. Abhilasha Gupta Vs Harimohan Gupta (2021
(9) SCC 730),

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
applicant and Mr. Shreesh Srivastava,
learned counsel for the opposite party.

2. Learned counsel for the applicant
submitted that applicant is residing at
District Etawah. She has also filed Case
No. 301 of 2019, under Section 125 Cr.P.C
and Case No. 227 of 2019, under Section
12 of Domestic Violence Act at there. He
next submitted that only to harass the
applicant, opposite party has filed Divorce
Petition No. 46 of 2019 before the Principal
Judge, Family Court, Auraiya. He further
submitted that while she was visting at
Auraiya alongwith her father, she was
misbehaved and threatened to face dare
consequences. For which, applicant has
also moved an application before the
Senior Superintedent of Police, Auraiya.
Lastly, he submitted that under such facts
and circumstances, direction may be issued
to Court below to transfer her case from
Auraiya to Etawah.

3. Mr. Shreesh Srivastava, learned
counsel
for
the
opposite
party
has
vehemently opposed the submission of
learned counsel for the applicant and
submitted that applicant is still residing at
District Auraiya, which may be verified
from the correspondence between the
applicant and S.S.P., Auraiya. Further,
pursuant to her alleged application before