# Smt. Poonam Devi & Ors v. Manager United India Insurance Co. Ltd., Varanasi & Ors

- **Citation:** (2021) 10 ILRA 267
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-28
- **Case number:** FAFO No. 2388 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-poonam-devi-ors-v-manager-united-india-insurance-co-ltd-varanasi-ors-46264
- **Pages:** 9

## Headnote

Sri
Sushanshu
Pandey,
Sri
Mohan
Srivastava, Ruchi Mishra, Sri Satya Deo
Ojha

(A) Practice & Procedure - Motor Accident
Claims - The principles of evidence and
standard of proof like in a criminal trial are
inapplicable in motor accident claim cases. (Para
19)

The Tribunal erred in rejecting the claim petition
just because the mother of the deceased was
not an eye witness to the incident. (Para 20)

Appeal Allowed. (E-10)

List of Cases cited:
268 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

10 All. Smt. Poonam Devi & Ors. Vs. Manager United India Insurance Co. Ltd., Varanasi & Ors. 267
investment is not passed because applicant
/claimant is neither illiterate nor rustic
villager.

14. 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.

15. In view of the above, both these
appeals are partly allowed. Judgment and
decree passed by the Tribunal shall stand
modified to the aforesaid extent. The
respondent-Insurance
Company
shall
deposit the amount within a period of 12
weeks from today with interest at the rate
of 7.5% from the date of filing of the claim
petition till the amount is deposited. The
amount already deposited be deducted from
the amount to be deposited.

16.

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.
----------
(2021)10ILR A267
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 28.09.2021

BEFORE

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

FAFO No. 2388 of 2018

Smt. Poonam Devi & Ors. ...Appellants
Versus
Manager United India Insurance Co. Ltd.,
Varanasi & Ors. ...Respondents

Counsel for the Appellants:
Sri Shrawan Kumar Ojha, Sri S.D. Ojha

Counsel for the Respondents:
Sri
Sushanshu
Pandey,
Sri
Mohan
Srivastava, Ruchi Mishra, Sri Satya Deo
Ojha

(A) Practice & Procedure - Motor Accident
Claims - The principles of evidence and
standard of proof like in a criminal trial are
inapplicable in motor accident claim cases. (Para
19)

The Tribunal erred in rejecting the claim petition
just because the mother of the deceased was
not an eye witness to the incident. (Para 20)

Appeal Allowed. (E-10)

List of Cases cited:
268 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Anita Sharma & ors. Vs The New India
Assurance Co Ltd. & anr. 2020 0 Supreme (SC)
704 (followed)

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

3. Mangla Ram Vs Oriental Insurance Co. Ltd.
(2018) 5 SCC 656

4. Munna lLal Jain Vs Vipin kumar Sharma 2016
(2) ACCD 1094

5. Smt. Sarla Verma Vs Delhi Transport Corp. &
anr. 2009 (2) ACCD 924

6. Vinod Shankar Shukla Vs Bhoruka Logistic
Pvt. Ltd. 2017 (1) DMP 232

7. Sumitra Kaur Vs New India Assurance Co.
Ltd. 2013 (1) ACCD 60

8. Reliance General Insurance Co. Ltd. Vs Rekha
Devi 2018 (1) ACCD 301

9. Jai Prakash Vs National Inurance Co ltd. 2010
(2) GLR 1787 (SC)

10. Smt. Saroj & anr Vs Rajendra Singh & anr.
First Appeal From Order No.3481 of 2012

(Delivered by Hon'ble Vivek Varma, J.)

1. Heard Sri S.D. Ojha, learned counsel
for the appellants, Sri Mohan Srivastava,
learned counsel for respondent no. 1 i.e.
Insurance Company, and Sri Sudhanshu
Pandey, learned counsel for respondent no. 3
i.e. driver of the vehicle.

2. The present first appeal from order
has been preferred by the claimantsappellants against the judgment and order
dated 20.03.2018 passed by the Motor
Accident
Claims
Tribunal/
Additional
District
Judge,
Court
No.
3,
Ballia
(hereinafter referred to as the "Tribunal") in
Motor Accident Claim Petition No. 56 of
2016 (Smt. Poonam Devi and others v.
Prabandhak, United India Insurance Co. and
others), whereby the claim petition has been
rejected.

3. It is the case of the appellants that on
10.03.2016 Sri Suraj Pratap Singh (deceased)
was travelling from Azamgarh to Lucknow
by Scorpio Jeep, bearing Registration No.
UP60 X 2715 (hereinafter referred to as the
"vehicle"), along with respondent nos. 2 and
3 and two others. The respondent no. 3- Sri
Gajendra Bahadur Singh was driving the
vehicle. All of a sudden a Neelgai appeared
on the road. While trying to save the Neelgai,
the car collided against the divider and all the
passengers in the vehicle were injured. Sri
Suraj Pratap Singh was taken to King George
Medical
College,
Lucknow
but
he
succumbed to his injuries on 10.03.2016.

4. The claimants-appellants filed a
claim petition before the Tribunal seeking
compensation
for
Rs.90,78,000/-
on
11.04.2016 alleging inter alia that Suraj
Pratap Singh died as a result of injuries
suffered in the abovementioned accident of
10.03.2016, which occurred due to negligent
driving of Gajendra Bahadur Singh, who was
the driver of the vehicle, in which the
deceased was travelling. The insurer of the
vehicle-United India Insurance Company
Limited as well as owner and driver of the
vehicle were impleaded as party respondent
nos. 1, 2 and 3 respectively.

5. The respondent no. 1- insurance
company filed its written statement and
denied the accident and the involvement of
the
vehicle.
The
insurance
company
asserted that the claim petition was based
on incorrect facts and was liable to be
rejected.

6. Following issues were framed by
the Tribunal on 27.10.2016:
10 All. Smt. Poonam Devi & Ors. Vs. Manager United India Insurance Co. Ltd., Varanasi & Ors. 269

"1) Whether on 10-03-2016 at
about 05.00 A.M. near Sursanda Petrol
Pump, P.S. Masauli, district Barabanki, an
accident took place due to rash and
negligent driving by the driver of vehicle
Scorpio No. UP60X/2715 as a result of
which, Suraj Pratap Singh @ Ravi Singh
sustained injuries and died? If so, its'
effect?

2) Whether the driver of the
offending vehicle No. UP60X/2715 was
not having a valid and effective driving
licence at the time of accident? If so, its'
effect?

3) Whether the offending vehicle
No. UP60X/2715 was not validly and
effectively insured with opposite party No.
1 United India Insurance Co. Ltd.? If so, its'
effect?

4) Whether the offending vehicle
No. UP60X/2715 was plied according to
the provisions of insurance policy?

5)
To
what
amount
of
compensation, are the petitioners entitled?
And from whom?"

7. Subsequently, the Tribunal vide its
judgment dated 20.03.2018 considered the
following points:

"1. Whether the petitioners have
cause of action in the matter?

2. To what relief the petitioners
are entitled for?"

8. The Tribunal while considering the
aforesaid points referred to the statement of
P.W.-1 Smt. Poonam Devi, who is the
mother of the deceased. She deposed that
the deceased was on his way to Lucknow
for medical treatment when the accident
occurred. During cross-examination she
stated that she is not an eye witness of the
occurrence and the respondent nos. 2 and 3
were present at the time of accident and the
entire story was narrated by them to her.
Thereafter, the Tribunal considered the
cross-examination of P.W.-2 Sri Satendra
Nath. It was stated by P.W.-2 Sri Satendra
Nath that he along with the deceased and
other friends were going to Lucknow as
Suraj Pratap Singh, Nilesh and Brijesh had
to purchase land at Lucknow. He deposed
that he admitted the injured persons. He
further stated that he did not inform the
police regarding the incident.

9. The Tribunal relying upon the
inconsistencies in the statements of P.W.-1
and P.W.-2 and further taking into
consideration that P.W.-2 having failed to
adduce any evidence that he himself was
injured and further being an eye witness
having not informed the police regarding
the incident, discarded his evidence and
came to the conclusion that the assertions
of
the
appellants
are
false
and
consequently, rejected the claim petition.

10. Sri S.D. Ojha, learned counsel for
the appellants, submits that the Tribunal
vide impugned judgment rejected the claim
petition of the claimants in a cryptic
manner without dealing with the issues
framed
on
27.10.2016.
He
further
submitted that the Tribunal was required to
decide the claim petition on the touchstone
of preponderance of the probabilities and
not on the basis of the proof beyond
reasonable doubt. In support of his
submissions, Sri Ojha has placed reliance
on a judgment of the Supreme Court in the
case of Anita Sharma and others v. The
New India Assurance Co. Ltd. and
another, 2020 0 Supreme (SC) 704.
270 INDIAN LAW REPORTS ALLAHABAD SERIES

11. On the other hand, learned
counsel appearing for the respondents
submitted that there is no legal evidence,
much less sufficient to record a finding that
the vehicle was involved in the accident.
The judgment of the Tribunal does not call
for any interference by this Court.

12. The moot question which arises
for consideration in this appeal is about the
correctness of the Tribunal in discarding
the evidence of P.W.-2 on the ground that
he failed to inform the police regarding the
incident.

13. It is not in dispute that the deceased
was taken to hospital. The police must have
reached the hospital as it was mentioned in
the inquest report that the deceased was
brought by Constable Deepak Kumar. The
finding recorded by the Tribunal cannot be
sustained for two reasons. Firstly, P.W.-1 was
admittedly not an eye witness, her version is
hearsay and cannot be relied upon; and
secondly, if PW.-2 had himself received
injuries, he could not have simultaneously
gone to police station to lodge the first
information report. The Tribunal ought not to
have drawn any adverse inference against
him for his failure to report the matter to the
police.

14. Further, the Tribunal in a highly
technical and cryptic manner arrived at the
conclusion that the claim of the appellants
is false. It needs to be emphasized that
there may be some discrepancies in the
evidence of the claimants/witnesses, but the
Tribunal has to bear in mind that the motor
accidents claims are summary proceedings
so as to adjudicate amount of compensation
in case of an accident and that a claim
under the Motor Vehicles Act has to be
decided
on
the
touchstone
of
preponderance of probabilities and not on
the basis of proof beyond reasonable doubt.

15. The evidence on record shows
that the father of the deceased submitted an
application on 06.04.2016 to the police
authorities for registration of the first
information report. The Tribunal ought to
have taken into consideration the police
report filed under Section 173 Cr.P.C. also
while arriving at a conclusion regarding the
genuineness of the claim set up by the
claimants-appellants.

16. It also needs to be emphasized
here that the driver of the vehicle P.W-3
was also not examined by the Tribunal and
as such, the approach of the Tribunal
cannot be justified.

17. The claim petition ought not to
have been rejected solely on the ground
that P.W.-2 did not produce any evidence
that he himself was injured and having
failed to inform the police regarding the
accident.

18. The Hon'ble Supreme Court in the
case of Anita Sharma and others v. The
New India Assurance Co. Ltd. and
another, 2020 0 Supreme (SC) 704, has
observed as follows:

"17. It is quite natural that such a
person who had accompanied the injured to
the hospital for immediate medical aid,
could not have simultaneously gone to the
police station to lodge the FIR. The High
Court ought not to have drawn any adverse
inference against the witness for his failure
to report the matter to Police. Further, as
the police had themselves reached the
hospital upon having received information
about the accident, there was perhaps no
10 All. Smt. Poonam Devi & Ors. Vs. Manager United India Insurance Co. Ltd., Varanasi & Ors. 271
occasion for AW-3 to lodge a report once
again to the police at a later stage either.

18. Unfortunately, the approach
of the High Court was not sensitive enough
to appreciate the turn of events at the spot,
or the appellants-claimants' hardship in
tracing
witnesses
and
collecting
information for an accident which took
place many hundreds of kilometers away in
an altogether different State. Close to the
facts of the case in hand, this Court in
Parmeshwari vs. Amir Chand, (2011) 11
SCC 635, viewed that:

"12. The other ground on which the
High Court dismissed the case was by way of
disbelieving the testimony of Umed Singh,
PW-1. Such disbelief of the High Court is
totally conjectural. Umed Singh is not
related to the appellant but as a good
citizen, Umed Singh extended his help to
the appellant by helping her to reach the
doctor's chamber in order to ensure that
an injured woman gets medical treatment.
The evidence of Umed Singh cannot be
disbelieved just because he did not file a
complaint himself. We are constrained to
repeat our observation that the total
approach
of
the
High
Court,
unfortunately, was not sensitised enough
to appreciate the plight of the victim.

xxx

15. In a situation of this nature, the
Tribunal has rightly taken a holistic view of
the matter. It was necessary to be borne in
mind that strict proof of an accident
caused by a particular bus in a particular
manner may not be possible to be done by
the claimants. The claimants were merely to
establish their case on the touchstone of
preponderance of probability. The standard of
proof beyond reasonable doubt could not
have been applied." (emphasis supplied)

19. The failure of the respondents
to cross examine the solitary eye witness or
confront him with their version, despite
adequate opportunity, must lead to an
inference of tacit admission on their part.
They did not even suggest the witness that he
was siding with the claimants. The High
Court has failed to appreciate the legal effect
of this absence of cross-examination of a
crucial witness.

20. The importance of crossexamination has been elucidated on several
occasions by this Court, including by a
Constitution Bench in Kartar Singh vs. State
of Punjab, (1994) 3 SCC 569 which laid
down as follows:

"278. Section 137 of the Evidence
Act defines what cross-examination means
and Sections 139 and 145 speak of the mode
of cross-examination with reference to the
documents as well as oral evidence. It is the
jurisprudence
of
law
that
crossexamination
is
an
acid-test
of
the
truthfulness of the statement made by a
witness on oath in examination-in-chief,
the objects of which are:

(1) to destroy or weaken the
evidentiary value of the witness of his
adversary;

(2) to elicit facts in favour of the
cross-examining lawyer's client from the
mouth of the witness of the adversary
party;

(3) to show that the witness is
unworthy of belief by impeaching the
credit of the said witness;
272 INDIAN LAW REPORTS ALLAHABAD SERIES

and
the
questions
to
be
addressed in the course of crossexamination are to test his veracity; to
discover who he is and what is his
position in life; and to shake his credit by
injuring his character.

279. The identity of the witness is
necessary in the normal trial of cases to
achieve the above objects and the right of
confrontation is one of the fundamental
guarantees so that he could guard himself
from being victimised by any false and
invented evidence that may be tendered by
the adversary party." (emphasis supplied)

21. Relying upon Kartar Singh
(supra), in a MACT case this Court in
Sunita v. Rajasthan State Road Transport
Corporation, (2019) SCC Online SC 195
considered the effect of non-examination of
the pillion rider as a witness in a claim
petition filed by the deceased of the
motorcyclist and held as follows:

"30. Clearly, the evidence given
by Bhagchand withstood the respondents'
scrutiny and the respondents were unable to
shake his evidence. In turn, the High Court
has failed to take note of the absence of
cross examination of this witness by the
respondents, leave alone the Tribunal's
finding
on
the
same,
and
instead,
deliberated
on
the
reliability
of
Bhagchand's (A.D.2) evidence from the
viewpoint of him not being named in the
list of eye witnesses in the criminal
proceedings, without even mentioning as to
why such absence from the list is fatal to
the case of the appellants. This approach of
the High Court is mystifying, especially in
light of this Court's observation [as set out
in Parmeshwari (supra) and reiterated in
Mangla Ram (supra)] that the strict
principles of proof in a criminal case will
not
be
applicable
in
a
claim
for
compensation under the Act and further,
that the standard to be followed in such
claims
is
one
of
preponderance
of
probability rather than one of proof beyond
reasonable doubt. There is nothing in the
Act to preclude citing of a witness in motor
accident claim who has not been named in
the list of witnesses in the criminal case.
What is essential is that the opposite
party should get a fair opportunity to
cross examine the concerned witness.
Once that is done, it will not be open to
them to complain about any prejudice
caused to them. If there was any doubt to
be cast on the veracity of the witness, the
same should have come out in cross
examination, for which opportunity was
granted to the respondents by the
Tribunal.

xxx

32. The High Court has not held
that the respondents were successful in
challenging the witnesses' version of
events, despite being given the opportunity
to do so. The High Court accepts that the
said witness (A.D.2) was cross examined
by the respondents but nevertheless reaches
a conclusion different from that of the
Tribunal, by selectively overlooking the
deficiencies in the respondent's case,
without any proper reasoning." (emphasis
supplied)

22. Equally, we are concerned
over the failure of the High Court to be
cognizant of the fact that strict principles of
evidence and standards of proof like in a
criminal trial are inapplicable in MACT
claim cases. The standard of proof in such
like matters is one of preponderance of
probabilities, rather than beyond reasonable
doubt. One needs to be mindful that the
10 All. Smt. Poonam Devi & Ors. Vs. Manager United India Insurance Co. Ltd., Varanasi & Ors. 273
approach
and
role of Courts
while
examining evidence in accident claim cases
ought not to be to find fault with nonexamination of some best eye-witnesses, as
may happen in a criminal trial; but, instead
should be only to analyze the material
placed on record by the parties to ascertain
whether the claimant's version is more
likely than not true. A somewhat similar
situation arose in Dulcina Fernandes vs.
Joaquim Xavier Cruz, (2013) 10 SCC 646
wherein this Court reiterated that:

"7. It would hardly need a
mention that the plea of negligence on the
part of the first respondent who was driving
the pick-up van as set up by the claimants
was required to be decided by the
learned Tribunal on the touchstone of
preponderance
of
probabilities
and
certainly not on the basis of proof
beyond reasonable doubt. (Bimla Devi
vs. Himachal RTC [(2009) 13 SCC 530 :
(2009) 5 SCC (Civ) 189 : (2010) 1 SCC
(Cri) 1101])" (emphasis supplied)

23. The observation of the High
Court that the author of the FIR (as per its
judgment, the owner-cum-driver) had not
been examined as a witness, and hence
adverse inference ought to be drawn
against the appellant-claimants, is wholly
misconceived and misdirected. Not only is
the owner-cum-driver not the author of the
FIR, but instead he is one of the contesting
respondents in the Claim Petition who,
along with insurance company, is an
interested party with a pecuniary stake in
the result of the case. If the owner-cumdriver of the car were setting up a defence
plea that the accident was a result of not his
but the truck driver's carelessness or
rashness, then the onus was on him to step
into the witness box and explain as to how
the accident had taken place. The fact that
Sanjeev Kapoor chose not to depose in
support of what he has pleaded in his
written statement, further suggests that he
was himself at fault. The High Court,
therefore, ought not to have shifted the
burden of proof.

24. Further, little reliance can be
placed on the contents of the FIR (Exh.-1),
and it is liable to be discarded for more
than one reasons. First, the author of the
FIR, that is, Praveen Kumar Aggarwal does
not claim to have witnessed the accident
himself. His version is hearsay and cannot
be relied upon. Second, it appears from the
illegible part of the FIR that the informant
had some closeness with the owner-cumdriver of the car and there is thus a strong
possibility that his version was influenced
or at the behest of Sanjeev Kapoor. Third,
the FIR was lodged two days after the
accident, on 27.03.2009. The FIR recites
that some of the injured including Sandeep
Sharma were referred to BHU, Varanasi for
treatment, even though as per the medical
report this took place only on 26.03.2009,
the day after the accident. Therefore the
belated FIR appears to be an afterthought
attempt to absolve Sanjeev Kapoor from
his criminal or civil liabilities. Contrarily,
the statement of AW-3 does not suffer from
any evil of suspicion and is worthy of
reliance. The Tribunal rightly relied upon
his statement and decided issue No. 1 in
favour of the claimants. The reasoning
given by the High Court to disbelieve
Ritesh Pandey AW-3, on the other hand,
cannot sustain and is liable to be
overturned. We hold accordingly."

19. The Apex Court in Vimla Devi
and
others
v.
National
Insurance
Company Limited and another, (2019) 2
SCC 186, Mangla Ram v. Oriental
Insurance Company Ltd., (2018) 5 SCC
274 INDIAN LAW REPORTS ALLAHABAD SERIES
656, as well as the judgments referred to in
Anita Sharma (supra) has held that strict
principles of evidence and standards of
proof
like
in
a
criminal
trial
are
inapplicable in motor accident claim cases.
It has further been held that it is
commonplace for most people to be
hesitant about being involved in legal
proceedings and they do not volunteer to
become witnesses. Therefore, also we
cannot concur with the view of the
Tribunal. The Tribunal while dismissing
the claim petition has held that there is
false assertion made by the claimants. The
judgments in Munna Lal Jain v. Vipin
Kumar Sharma, 2016 (2) ACCD 1094,
Smt. Sarla Verma v. Delhi Transport
Corporation and Another, 2009 (2)
ACCD 924, Vinod Shankar Shukla v.
Bhoruka Logistic Pvt. Ltd., 2017 (1)
DMP 232, Sumitra Kaur v. New India
Assurance Co. Ltd., 2013 (1) ACCD 60,
and Reliance General Insurance Co. Ltd.
v. Rekha Devi, 2018 (1) ACCD 301, have
been misread by the Tribunal. Just because
Smt. Poonam Devi, who was not an eye
witness, deposed that her son was going for
medical treatment, cannot be a ground of
disbelieving the case. It is an admitted
position of fact that she was not an eye
witness. The statements of P.W.-2 and
P.W.-3 are not contradicted and they have
withstood the cross-examination by the
insurance company. The only difference in
the statements of P.W.-1 and P.W.-2 is that
P.W.-2 stated that they were going to
purchase land.

20. Just because the accident was not
reported by P.W.-2 cannot be a ground for
dismissing the claim petition. The Tribunal
ought to have considered the judgments of
the Apex Court which have made it
obligatory on the police officials to forward
to the Claims Tribunal the accident
information report. In the case of Jai
Prakash v. National Insurance Company
Limited, 2010 (2) GLR 1787 (SC),
detailed guidelines are given and, therefore,
the Tribunal ought to have considered this
aspect also before rejecting the claim
petition on the basis of only one minor
contradiction, even though the evidence of
the eye witness was unshaken. The postmortem report, G.D. entry and the
Panchanama of the place of occurrence,
where the accident occurred, also showed
that the death was because of involvement
of a vehicle. One more aspect which
required attention of the Tribunal was when
the deceased was taken to hospital, there is
a mention about the accidental injuries and,
therefore, just because the mother, who is
not an eye witness and is a rustic lady,
deposed that her son was going for medical
treatment, cannot be the sole ground of
rejection of the claim petition. The accident
occurred on 10.03.2016 and the deceased
was taken to the Government Hospital by
an ambulance, this fact is also proved from
the evidence of P.W.-1 and 2. The
respondents have not examined anybody on
oath, who would shake the evidence led
before the Tribunal. The number of the
vehicle is mentioned. The factum that it
had collided against the divider has also
been mentioned. All these facts go to show
that the accident occurred when the
deceased was in the vehicle and the use of
the vehicle is proved. The Tribunal on the
basis of the surmises and conjectures
without
there
being
any
concurrent
evidence to disbelieve the witnesses, has
dismissed the claim petition. Our view is
fortified by the recent decision of the Apex
Court in the case of Vimla Devi (supra)
and we rely on the judgment of the
Division Bench of this Court in First
Appeal From Order No. 3481 of 2012
(Smt. Saroj and another v. Rajendra
10 All. Smt. Kamal Marwah & Ors. Vs. M/s Owens Bilt Ltd. & Anr.
275
Singh
and
another),
decided
on
13.08.2021. Thus, the appeal has to be
allowed.

21. Applying the said principles of
law as laid down by the Hon'ble Supreme
Court in the decisions relied upon hereinabove, we find that the approach of the
Tribunal in deciding the aforesaid claim
petition was not correct and was based on
surmises and conjectures and misreading of
the evidence on record as well as the
judgments, which were meant for deciding
the quantum of compensation.

22. Hence, the impugned judgment
and award dated 20.03.2018 passed by the
Tribunal is set aside. The matter is remitted
to
the
Tribunal
to
consider
the
compensation awardable to the claimantsappellants in accordance with law as the
deceased was a non-tort feaser and the
accident occurred on account of the
negligence of the driver of the vehicle, for
which we have given our findings. As the
evidence is already over and the pay-slips
are before the Tribunal, the compensation
as awardable in the light of the decisions of
the Apex Court be granted within six weeks
of receipt of the record by the Tribunal.

23. Accordingly, the appeal is
allowed.

24. Let the lower court record be sent
back to the Tribunal.
----------
(2021)10ILR A275
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 05.10.2021

BEFORE

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

FAFO No. 2688 of 2011

Smt. Kamal Marwah & Ors. ...Appellants
Versus
M/s Owens Bilt Ltd. & Anr. ...Respondents

Counsel for the Appellant:
Sri Swetashwa Agarwal

Counsel for the Respondents:
Sri Tarun Agarwal, Sri Akhilesh Mishra,Sri R.D.
Singh, Sri S.S. Nigam, Sri Prakhra Srivastava, Sri
R.K.Shukla

(A)
Practice
&
Procedure
-
First
Appellate Court can also decide the appeal
for quantum if the records are available.
Therefore, the Court on observing that the
appeal remained pending for a period of 15
years before this Court and it being a case
of sole bread winner who was not a tort
feasor
has
passed
away,
the
Court
proceeded
to
decide
just
and
fair
compensation. (Para 7)

Appeal Allowed. (E-10)

List of Cases cited:

1. Jai Prakash Vs National Insurance Co. Ltd.
(2010) 2 SCC 607

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

3. Sunita Sharma & ors. Vs Rajasthan State
Road Transport Corporation & anr. 2019
LawSuit (SC) 190

4. Anita Sharma Vs New India Assurance Co.
Ltd. (2021) 1 Supreme Court Cases 171

5. Archit Saini Vs Oriental Insurance Co. Ltd. &
ors. 2018 0 AIR (SC) 1143

6. Bithika Mazumdar & anr. Vs Sagar Pal & ors.
AIR 2017 SC 965 (followed)

7. New India Assurance Co. Ltd. Vs Urmila
Shukla 2021 SCC online SC 82 (followed)