# Smt. Prabha Sharma & Anr v. The NIACL & Ors

- **Citation:** (2021) 11 ILRA 879
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-24
- **Case number:** First Appeal From Order No. 3602 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-prabha-sharma-anr-v-the-niacl-ors-46671
- **Pages:** 6

## Headnote

Civil Law - Motor Accident Claim - Motor
Vehicles Act, 1988 - Section 166 - Insurance
Company contend that alleged accident did not
take place, vehicle insured was not involved
and was planted - Held - documentary evidence
such as certified copy FIR, certified copy of site
plan, charge-sheet and death certificate of
deceased was filed which prima facie prove
involvement of the vehicle in accident -
accident proved by eye witnesses - Doctor
proved that deceased was admitted in hospital
in injured condition & was given treatment -
FIR
though
was
lodged
belatedly
but
explanation was given - chargesheet was filed -
non conducting the post mortem cannot be
fatal
to
the
case
of
claimants
-
Held
involvement of the offending vehicle cannot be
accepted to be planted (Para 12)

Allowed. (E-5)

List of Cases cited:

## Text

11 All. Smt. Prabha Sharma & Anr. Vs. The NIACL & Ors.
879
not be proved. This finding is perverse. The
driver of the vehicle was present at the place of
accident. He himself accepted that he had gone
to the bus stand to drop somebody and takes a
stand that his vehicle was not involved despite
the fact that the charge-sheet was already laid
against him.

14. Having perused the record, we are
convinced that the Tribunal has decided the
claim petition on surmises and conjectures and
had not taken a holistic view of the matter,
which was required to be taken. The chargesheet is laid against the driver and his presence
is accepted on timing but as the F.I.R. was
delayed by one day, the claim petition was
dismissed. We cannot concur with the Tribunal
rather for the reasons we have mentioned
hereinabove. The claim petition could not have
been dismissed when the aforesaid facts were
proved.

15. We would have decided the quantum
here but remit the matter to the Tribunal to
decide the quantum as all other issues have been
decided.
It
shall
hear
the
parties
for
compensation only. No further evidence be led
as the evidence is already led. The matter be
decided on or before 31st of December 2021 as
the accident is of the year 2011 and the appellant
is paralytic as mentioned by his counsel while
making his oral submissions.

16. Appeal is partly allowed with the
aforesaid observations.

17. Record be sent back to the Tribunal.

18. We are thankful to the counsel for both
the parties for ably assisting the Court in
deciding the appeal.
----------
(2021)11ILR A879
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

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

First Appeal From Order No. 3602 of 2018
with
First Appeal From Order No. 3994 of 2018

Smt. Prabha Sharma & Anr. ...Appellants
Versus
The NIACL & Ors. ...Respondents

Counsel for the Appellants:
Sri Amit Kumar Sinha, Deepali Srivastava Sinha

Counsel for the Respondents:
Sri Brijesh Chandra Naik, Archana Singh, Sri
Ajay Singh

Civil Law - Motor Accident Claim - Motor
Vehicles Act, 1988 - Section 166 - Insurance
Company contend that alleged accident did not
take place, vehicle insured was not involved
and was planted - Held - documentary evidence
such as certified copy FIR, certified copy of site
plan, charge-sheet and death certificate of
deceased was filed which prima facie prove
involvement of the vehicle in accident -
accident proved by eye witnesses - Doctor
proved that deceased was admitted in hospital
in injured condition & was given treatment -
FIR
though
was
lodged
belatedly
but
explanation was given - chargesheet was filed -
non conducting the post mortem cannot be
fatal
to
the
case
of
claimants
-
Held
involvement of the offending vehicle cannot be
accepted to be planted (Para 12)

Allowed. (E-5)

List of Cases cited:

1. Ravi Vs. Badrinarayan & ors. 2011 (1) T.A.C. 867
(S.C.)

2. Sumitra Kaur & anr. Vs. New India Assurance
Company Limited through Divisional Manager 2012
(4) T.A.C. 799 (All.)
880 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Sunita & ors. Vs. Rajasthan State Road Transport
Corporation & anr. 2019 (1) T.A.C. 710 (S.C.)

4. Jai Prakash Vs. National Insurance Company Ltd.
(2010) 2 SCC 607

5. Smt. Hansagori P. Ladhani Vs. The Oriental
Insurance Company Ltd., 2007 (2) GLH 291

6. A.V. Padma Vs. Venugopal reported in 2012 (1)
GLH (SC) 442

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

1. Heard Sri Amit Kumar Sinha, learned
counsel for the appellant and Sri B.C. Naik,
Advocate and Sri Ajay Singh, learned counsel
for the Insurance Company and perused the
judgment and order impugned.

2. First Appeal From Order No. 3602 of
2018 (Smt. Prabha Sharma and another Vs. The
New India Assurance Company Limited) is at
the behest of appellants-claimants against the
judgment and award dated 11.07.2018 passed by
Motor Accident Claims Tribunal/Additional
District Judge, Room No.8, Aligarh (hereinafter
referred to as 'Tribunal') in M.A.C.P. No. 77 of
2016
the
same
is
for
enhancement
of
compensation awarded by the Tribunal.

3. First Appeal From Order No. 3994 of
2018 (The New India Assurance Company
Limited Vs. Smt. Prabha Sharma and others)
against
the
judgment
and
award
dated
11.07.2018 passed by Motor Accident Claims
Tribunal/Additional District Judge, Court No.8,
Aligarh (hereinafter referred to as 'Tribunal') in
M.A.C.P. No. 77 of 2016 on the ground of non
involvement of vehicle in the impugned accident
and for exonerating the Insurance Company
from the liability to pay compensation to third
party.

4. The brief facts culled out from the
materials on record are that on 25.11.2015
Rajendra
Prasad
Sharma
(deceased)
and
appellant no.1 had gone to Village Mukundpur
for some personal work and while coming back
at 9 O' clock they were standing on the road side
to board a Bus at that time, a car bearing
registration No. UP 81 AU 2270 driven by its
driver rashly and negligently came at high speed
and dashed with both of them namely deceased
and his wife PW-1, as a result of which both
sustained injuries. Rajendra Prasad Sharma was
admitted in Russa Hospital thereafter shifted to
Central Hospital situated at Masoodabad and
during treatment on 29.11.2015 Rajendra Prasad
Sharma died. The deceased was 55 years old on
the date of accident and after his death he was
survived by his widow and son Bharat Sharma.
The deceased was practising Advocate at
District Court, Aligarh. The FIR of the accident
was registered as case crime no. 234 of 2018
under Sections 279, 338, 304A IPC at Police
Station Madrak, District Aligarh. The offending
vehicle was insured by New India Insurance
Company Limited, therefore, compensation of
Rs. 79,25,000/- is claimed along with interest
thereon.

5. On behalf of New India Insurance
Company-opposite party no.3 filed written
statement contending that alleged accident did
not take place and the vehicle insured was not
involved and was planted. The claim petition
had been filed in collusion with owner and the
Insurance Company had right to contest the
claim petition on all the grounds, available to the
Insurance Company in view of Section 170 of
Motor Vehicle Act, 1988. It was contended that
the Insurance Company cannot be fastened with
any liability to pay compensation because the
owner has committed breach of terms and
conditions of the insurance policy. On behalf of
opposite party nos. 1 and 2 owner and driver of
the offending vehicle who filed written
statement and stated that on the date of accident,
11 All. Smt. Prabha Sharma & Anr. Vs. The NIACL & Ors.
881
the driver of the offending vehicle was having a
valid and effective driving license. The
offending vehicle was insured with New India
Insurance Company Limited. No terms and
conditions of the insurance policy was breached
on behalf of the respondents responding
opposite parties and if any liability to pay the
compensation is arise for the same, the
Insurance Company is liable to pay. The learned
Tribunal after taking evidence on record and
herein the passed the award vide judgment and
order dated 11.07.2018 awarding compensation
of Rs. 16,91,400/- along with 7% interest
thereupon and opposite party New India
Insurance Company was directed to pay the
compensation.

6. First Appeal From Order No. 3994 of
2018 is at the behest of New India Insurance
Company, in which the Insurance Company has
challenged the impugned award on the ground
that the offending vehicle has been falsely
implicated in the said accident. It is contended
that the vehicle was planted. The accident did not
occur because of involvement of the said vehicle.
It is further submitted that the evidence on record
also does not inspire truth. PW-1 and PW-2 were
giving the two different versions. The presence of
PW-2 on the spot is very doubtful, in the G.D.
entry, neither his name nor his statement was
recorded during the investigation. It is submitted
that it is admitted position of fact that the death
being because of this accident could not be
ascertained as no post mortem report was
produced on the record. No alleged accident took
place by the offending vehicle. The owner of the
vehicle and claimants are in collusion. It is
submitted that the FIR of accident was lodged
belated by 21 days as the accident took place on
25.11.2015 and the FIR of the same was lodged
on 16.12.2015. No post mortem of deceased was
conducted so as to ascertain the cause of death on
account of accident.

7. Per contra, learned counsel for the
respondent-claimants contended that the alleged
accident is admitted by the opposite party nos. 1
and 2 of the claim petition, who are the owner of
the vehicle and driver of the offending vehicle.
They have filed written statement but none of
them stepped into the witness box for oral
examination before the Tribunal. Even on behalf
of Insurance Company no witness was examined
to rebut the evidence adduced on behalf of the
petitioner. On behalf of claimants, certified copy
of the FIR, charge-sheet, site plan have been
filed on record. Oral testimony of the two eye
witnesses of the accident were adduced. The
doctor was also examined, who gave treatment
to the deceased prior to his death as he was
admitted in injured condition. On the oral and
documentary evidence, the involvement of the
offending vehicle and also the negligence of the
driver of the offending vehicle is very well
proved. The post mortem was not conducted is a
fact, and the FIR was lodged belated because of
this it cannot be accepted that the vehicle was
falsely involved. In support of his contention
learned counsel for the claimants relied on
following authoritative pronouncements:-

Ravi Vs. Badrinarayan and others
2011 (1) T.A.C. 867 (S.C.), Sumitra Kaur and
another Vs. New India Assurance Company
Limited through Divisional Manager 2012 (4)
T.A.C. 799 (All.) and Sunita and others Vs.
Rajasthan State Road Transport Corporation
and another 2019 (1) T.A.C. 710 (S.C.)

8. To prove the involvement of the
offending vehicle and negligence of the driver of
the vehicle on behalf of claimants documentary
evidence have been filed. The certified copy of
FIR, certified copy of site plan and charge-sheet
and death certificate of deceased Rajendra
Prasad Sharma was filed which prima facie
prove involvement of the vehicle in accident.
882 INDIAN LAW REPORTS ALLAHABAD SERIES

9. PW-1 namely Prabha Sharma has
examined herself on oath she was the eye
witness at the time of occurrence as she had
accompanied the deceased who was her
husband. PW-2 Parag Gupta is also portrayed as
eye witness of the accident. These witnesses
have stated that the offending car came at high
speed driven by its driver rashly and negligently
and dashed Rajendra Prasad Sharma and his
wife, who were waiting on the road side to board
a Bus. The respondent has not led any evidence
in rebuttal and no contrary conclusion could be
drawn from the cross examination of these
witnesses on behalf of Insurance Company or
the owner. Moreover, PW-3 Dr. Gyanendra
Prasad was also examined, who has stated that
he had treated Rajendra Prashad Sharma, who
was admitted in his hospital being injured and
died in the hospital during treatment. He had
informed the police for post mortem of
deceased, but police refused to conduct the post
mortem. This witness has also proved by cogent
evidence the documents produced about the
admission of deceased and treatment papers of
deceased and death certificate.

10. On behalf of Insurance Company or the
owner no evidence oral or either documentary
was produced on this issue. The Apex Court in
case of Sunita and others Vs. Rajasthan State
Road Transport Corporation and another (supra)
has held in para 25 "The Tribunal's reliance
upon FIR 247/2011 (Exh.1) and charge-sheet
(Exh.2) also cannot be faulted as these
documents indicate the complicity of respondent
No.2. The FIR and charge-sheet, coupled with
the other evidence on record, inarguably
establishes the occurrence of the fatal accident
and also point towards the negligence of the
respondent No.2 in causing the said accident.
Even if the final outcome of the criminal
proceedings
against
respondent
No.2
is
unknown, the same would make no difference at
least for the purposes of deciding the claim
petition under the Act. This Court in Mangla
Ram Vs. Oriental Insurance Company Limited
(2018) 5 SCC 656: 2018 (2) T.A.C. 337, noted
that the nature of proof required to establish
culpability under criminal law is far higher than
the standard required under the law of torts to
create liability." The FIR and the charge-sheet
coupled with the other evidence on record
establishes the occurrence of fatal accident,
caused by the negligence of respondent no.2 in
causing the said accident. The Apex Court in
Mangla Ram (supra) noted that another proof
required to establish the culpability under
criminal law is higher than the standard required
under law of breach of liability.

11. The Apex Court in Ravi Vs. Badri
(supra) held where the owner of the vehicle
categorically admitted that the vehicle was
involved and that the accident occurred which is
clear admission of involvement of offending
vehicle in a road accident. The delay in lodging
the FIR is explained and hence same is not fatal
to the claim petition filed on behalf of claimants.

12. In case on hand the accident has been
proved by eye witnesses PW-1 Prabha Sharma
and PW-2 Parag Sharma. PW-3 Dr. Gyanendra
proves that deceased was admitted in his
hospital in injured condition and was given
treatment by him. He has proved from the
documentary evidence that the deceased has
sustained injuries in motor accident. Moreover,
the
FIR
though
was
lodged
belatedly
explanation of the same is given on behalf of
PW-1 Prabha Sharma that the injured was
admitted to the hospital and she remained busy
in treatment and after that she lodged the FIR.
The charge-sheet has also been filed and as such
non conducting the post mortem cannot be fatal
to the case of claimants. More so, the accident
which was proved by oral and documentary
evidence as such the claimants are entitled to the
benefit of aforesaid case law cited in support of
contentions and involvement of the offending
vehicle cannot be accepted to be planted. The
11 All. Smt. Prabha Sharma & Anr. Vs. The NIACL & Ors.
883
Tribunal has not misdirected itself in accepting
the factual data in favour of claimants. The
judgment of Jai Prakash Vs. National
Insurance Company Ltd., (2010) 2 SCC 607
where the detail guidelines are given to the
Tribunal. The police was under obligation to
report and note down in the diary and therefore,
we conclude that the offending vehicle was
involved in the accident. The charge-sheet was
laid against the driver of the said vehicle. The
owner received the vehicle from the court,
which also proves its involvement. The death
certificate shows that the injuries were because
of accident.

13. In view of the above analysis of
evidence on record, First Appeal From Order
3994 of 2018 preferred by the Insurance
Company deserves to be dismissed and is
dismissed.

14. So far as First Appeal From Order
No. 3602 of 2018 on behalf of the claimants
for
enhancement
of
compensation
is
concerned the claimants has challenged the
impugned award on the ground that income of
the deceased was not assessed as per income
tax return. On behalf of the claimants the
income tax returns of the deceased were filed
by the claimants for the assessment year 201213, 2013-14, 2014-15 and in the year 2014-15
annual income of deceased is Rs. 2,24,568/-
and the net tax payable to be Rs. 468 but the
Tribunal had assessed the annual income of
deceased to be Rs. 2,00,000/- while it should
have been assessed as Rs. 2,24,100/- (round
figure) after deduction of income tax. As far
as the future prospects is concerned, which
was awarded at 10% of the income is not in
dispute. The deductions for personal expenses
of 1/3 of income is not disputed, multiplier of
11 granted is not disputed. The amount under
non pecuniary damages awarded being Rs.
70,000/- is not disputed.

15. The Insurance Company vehemently
opposed the contention of learned counsel for
the appellant and contended that Tribunal has
rightly assessed the income of deceased at Rs.
2,00,000/- per annum in view of previous
assessment year 2012-13, 2013-14, 2014-15.
From the income tax return of the assessment
year 2014-15 it transpires that gross income of
deceased of Rs. 2,24,568/- and income tax net
tax payable income is shown Rs. 468/- The total
tax and interest shown is Rs. 5000/- as such the
income of deceased of the year 2014-15 in
which the alleged accident took place should
have been assessed by the Tribunal Rs.
2,24,000/- in view of ITR of the assessment year
2014-15.

16. So far as the medical expenses is
concerned since deceased was admitted to the
hospital in injured condition and he underwent
treatment for some days therefore, on this head
lump sum expenses of Rs. 50,000/- is deemed
just and proper to be awarded though there are
no receipts/bills of the medicine yet the
prescription discharge slip admission card etc.
when the deceased was underwent to the
treatment.

17. The award passed by the Tribunal
would
stand
modified
and
the
total
compensation payable to the appellants would
be:-

i. Annual Income :- 2,24,000/-

ii. Percentage towards future prospects
: 10% (Rs. 22,456/-) =(Rs. 2,47,024/-)

iii. Income after deduction of 1/3rd
towards personal expenses : Rs. 1,64,683/-

iv. Multiplier applicable : 11

v. Loss of dependency: Rs.1,64,683 x
11 = Rs. 18,11,513/-

vii. Amount under non pecuniary
heads : Rs. 70,000 + Rs. 30,000 (10% per year
due to pendency of appeal)
884 INDIAN LAW REPORTS ALLAHABAD SERIES

vii.
Total
compensation
:
Rs.
19,11,513/- + Rs. 50,000/- = Rs. 19,61,513/-

18. In view of the above, the appeal
preferred by the claimants is partly allowed.
Award and decree passed by the Tribunal shall
stand modified to the aforesaid extent. The
amount be deposited by the respondentInsurance Company within a period of 12 weeks
from today with interest at 7.5%. The amount
already deposited be deducted from the amount
to be deposited.

19. In view of the ratio laid down by
Hon'ble Gujarat High Court in case of Smt.
Hansagori P. Ladhani Vs. The Oriental
Insurance Company Ltd., reported in 2007
(2) GLH 291, the total amount of interest,
accrued
on
the
principle
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 At,
1961 and if the amount of interest does not
exceeds Rs. 50,000/- in any financial year,
registry of the 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) and in First Appeal
From Order No. 2871 of 2016 (Tej Kumari
Sharma Vs. Chola Mandlam M.S. General
Insurance Co. Ltd.) decided on 19.03.2021 while
disbursing the amount.

20. 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 Vs.
Venugopal reported in 2012 (1) GLH (SC)
442, the order of investment is not passed
because respondents are neither illiterate nor
rustic villagers.

21. We are thankful for both the counsels
for getting the appeal decided without record
and ably assisting the Court.
----------
(2021)11ILR A884
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.11.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 875 of 1981

Ram Kumar & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
S.H.
Ibrahim,
Dharmenra
Kumar
Tiwari,
Ravindra Kumar Dwivedi

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Juvenile Justice (Care and
Protection of Children) Amendment Act, 2021 -
Sections 18 & 21 - Indian Penal Code, 1860 -
Section 302 - Murder - juvenile in conflict with
law cannot be sentenced to death or to
undergo life imprisonment - further maximum
period of which a juvenile may be sent to a
Special Home is only three years (Para 15)

Sessions Judge convicted appellant Sangram, under
Section
302
&
sentenced
him
to
undergo
imprisonment for life - plea of juvenility was raised
before High Court during pendency of Criminal Appeal
- Juvenile Justice Board declared appellant Sangram
as juvenile on the date of the incident i.e. on
08.01.1981 - accused-appellant was aged about 15
years 05 months and 22 days on the date of incident