# Smt. Ramo Devi & Ors v. ICICI General Insurance & Ors

- **Citation:** (2022) 7 ILRA 23
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-30
- **Case number:** First Appeal From Order No. 3406 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ramo-devi-ors-v-icici-general-insurance-ors-48882
- **Pages:** 11

## Headnote

24 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Civil Law - Motor Vehicles Act, 1988 -
Section -166 -- Appeal - against rejection
of claim petition - Accident - contributory
negligence - deceased died due to injuries
sustained when his bicycle was hit by a
driver of motorcycle who drives it rashly &
negligently - tribunal rejected the claim
petition on the ground that appellants
have failed to prove the accident - Court
after considering all the evidence on
record (i.e. site plan/testimony of eye
witness/investigation
report
of
police/admission of driver/post mortem
report) - held - (i) tribunal cannot dismiss
the petition unless proved otherwise, (ii)
burden of proof in claim petition under MV
Act, cannot to be considered as in Civil or
Criminal Cases, (iii) Motorcycle in question
was involved in the accident (iv) both
deceased and driver of motorcycle are coauthor of the accident - principles of 'res
ips loquitur' - contributory negligence
drawn to the tune of 50% each -
therefore, impugned order is requires to
be quashed. (Para - 13, 19,20, 21)

(B) Civil Law - Motor Vehicles Act, 1988 -
Section -166 - Appeal - against rejection
of
claim
petition
-
quantum
of
compensation
-
accident
took
place
before 9 years and record of case is
available before appellate Court - no issue
of any complicated questions - in the light
of various Judgments of Hon'ble Apex
Court - court can decide the compensation
here - instead of relegating the parities to
the tribunal - therefore, as per the law lay
down by the Hon'ble Apex Court - the
compensation
computed
at
Rs.
23,
05,472/- with 7.5% rate of interest & -
Appeal Allowed. (Para - 28, 30, 31, 32)

(C) Civil Law - Motor Vehicles Act, 1988 -
Section - 166 - Income Tax Act, 1961 -
Section - 194- A(3)(ix): - Appeal - Tax
deduction - in the light of judgment of
Hon'ble Apex court in case of 'Smt.
Hansaguri P. Ladhani's case - insurance
company
is
entitled
to
deduct
the
appropriate amount under the head of
'TDS' accordingly - directions are also
issued to the tribunal to follow the
guidelines issued in case of 'Bajaj Allianz
General Insurance Com. Pvt. Ld. Vs UOI &
ors.'.(Para - 34, 35)

Appeal allowed. (E-11)

List of Cases cited: -

## Text

7 All. Smt. Ramo Devi & Ors. Vs. ICICI General Insurance & Ors.
23

ववश्लेषण व वनष्कषश:

6.1- पिोिं के विद्वान अवधिक्ताओिं के कथन को
उपरोक्त िवणार् जमानर् की विवध के पररपेि में ुना
ि पत्राििी का म्यक पररशीिन वकया।

6.2- आिेदक मृर्का का पवर् ि मृर्क का
जीजा है। िर्ामान प्रकरण में मृर्का की आिेदक के
 ाथ शादी के मात्रिर्ा के भीर्र शारीररक िवर् द्वारा
मृत्यु काररर् हुई है और ाथ ही ाथ मृर्का के भाई
की भी हत्या हुई है।

6.3- प्रथम ूचना ररपोर्ा के र्थ्य ि जाुँच के
दौरान ाक्ष्योिं ि र्िाहोिं के कथनोिं में यह प्रथम दृष्टया
स्पष्ट रुप े विवदर् होर्ा है वक आिेदक घर्ना के
वदन रार् में अपनी पत्नी ि उ के भाई को मेिा घुमाने
िे र्या था। रार् में कोई भी िाप नहीिं आया र्था
 ुबह मृर्का ि मृर्क का शि अिर्-अिर् स्थान े
बरामद हुए र्था आिेदक फरार रहा। भारर्ीय ाक्ष्य
अवधवनयम की धारा 106 के अन्तर्ार् आिेदक पर
भार है वक िो बर्ाये वक मेिे में ाथ िे जाने के बाद
ि उनके शि वमिने र्क उन दोनोिं के ाथ, कै े क्या
घवर्र् हुआ। यह भी विवदर् रहे वक यह भार आिेदक
पर र्ब आयेर्ा जब अवभयोजन पररखस्थयोिं की श्रृिंििा
पूणा करने में कामयाब हो पायेर्ा और अर्र िो ऐ े
र्थ्य ावबर् करने में अ फि रहर्ा र्ो अपराध व द्ध
होने की िंभािना प्रबि हो जार्ी है। (देिें विर्री
 ामान्तरे प्रवर् उडी ा राज्य:2022 ए . ी. ी. ऑन
िाइन ए . ी. 673)

6.4- पत्राििी पर उपखस्थर् जािंच के दौरान
र्िाहान के ब्यान, शि विच्छेदन ररपोर्ा ि
अवधिक्ताओिं के कथन े प्रथम दृष्टया ि केिि
जमानर् के आिेदन पर विचार करने के उद्देश्य े
यह प्रर्ीर् होर्ा है वक आिेदक पूिा में अपनी पत्नी के
 ाथ दहेज की मािंर् के विये उ के ाथ क्रूरर्ा करर्ा
था। घर्ना के कुछ वदन पूिा े मृर्का अपने पैर्ृक
वनिा पर रह रही थी र्था घर्ना के वदन आिेदक
िहािं जार्ा है ि अपनी पत्नी ि उ के भाई को अपने
 ाथ मेिे घुमाने िे जार्ा है, यह र्थ्य स्वर्िंत्र र्िाहोिं
के ब्यान में भी उल्लेखिर् है र्था न र्ो आिेदक न ही
उ की पत्नी ि उ का भाई रार् में िाप आर्े हैं।
 ुबह दोनोिं के शि एक दू रे े कुछ दूरी पर बरामद
होर्े है र्था दोनोिं के शि पर मृत्यु पूिा आग्नेयास्त्र
काररर् चोर् पाई जार्ी है और एक देशी कट्टा
आिेदक के वदिाने पर बरामद भी होर्ा है।

6.5- उपरोक्त पररखस्थवर्योिं की कडी जोडी
जाये र्ो प्रथम दृष्टया एक श्रृिंििा बन जार्ी है र्था
जाुँच के दौरान आिेदक के दो ावथयोिं का नाम भी
उजार्र होर्ा है वजनकी भी अपराध में िंविप्तर्ा पाई
जार्ी है। प्रथम दृष्टया पररखस्थयोिं की श्रृिंििा का एक
ही वनष्कर्ा है वक आिेदक इ जघन्य अपराध में
 वक्रय रुप े विप्त रहा।

6.6- अर्ः उपरोक्त िवणार् जमानर् की विवध
को ध्यान में रिर्े हुए र्था महत्वपूणा कारक जै े
प्रथम दृष्टया अवभयुक्त (आिेदक) की अपराध में
 िंविप्तर्ा, आरोप की र्िंभीरर्ा, मामिे में िंभाविर्
 जा की िंभािना ि कठोरर्ा ि र्िाहोिं े छेडछाड
की िंभािना को भी ध्यान में रिर्े हुए, यह न्यायािय
इ वनष्कर्ा पर पहुुँचर्ा है वक आिेदक को जमानर्
नहीिं दी जा कर्ी है।

6.7- अर्ः जमानर् का आिेदन बिहीन होने
के कारण वनरस्त वकया जार्ा है।
----------
(2022)07ILR A23
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2022

BEFORE

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

First Appeal From Order No. 3406 of 2014

Smt. Ramo Devi & Ors. ...Appellants
Versus
ICICI General Insurance & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Sanjay Kumar Singh

Counsel for the Respondents:
Sri Rahul Sahai, Sri Vishwambhar Nath
24 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Civil Law - Motor Vehicles Act, 1988 -
Section -166 -- Appeal - against rejection
of claim petition - Accident - contributory
negligence - deceased died due to injuries
sustained when his bicycle was hit by a
driver of motorcycle who drives it rashly &
negligently - tribunal rejected the claim
petition on the ground that appellants
have failed to prove the accident - Court
after considering all the evidence on
record (i.e. site plan/testimony of eye
witness/investigation
report
of
police/admission of driver/post mortem
report) - held - (i) tribunal cannot dismiss
the petition unless proved otherwise, (ii)
burden of proof in claim petition under MV
Act, cannot to be considered as in Civil or
Criminal Cases, (iii) Motorcycle in question
was involved in the accident (iv) both
deceased and driver of motorcycle are coauthor of the accident - principles of 'res
ips loquitur' - contributory negligence
drawn to the tune of 50% each -
therefore, impugned order is requires to
be quashed. (Para - 13, 19,20, 21)

(B) Civil Law - Motor Vehicles Act, 1988 -
Section -166 - Appeal - against rejection
of
claim
petition
-
quantum
of
compensation
-
accident
took
place
before 9 years and record of case is
available before appellate Court - no issue
of any complicated questions - in the light
of various Judgments of Hon'ble Apex
Court - court can decide the compensation
here - instead of relegating the parities to
the tribunal - therefore, as per the law lay
down by the Hon'ble Apex Court - the
compensation
computed
at
Rs.
23,
05,472/- with 7.5% rate of interest & -
Appeal Allowed. (Para - 28, 30, 31, 32)

(C) Civil Law - Motor Vehicles Act, 1988 -
Section - 166 - Income Tax Act, 1961 -
Section - 194- A(3)(ix): - Appeal - Tax
deduction - in the light of judgment of
Hon'ble Apex court in case of 'Smt.
Hansaguri P. Ladhani's case - insurance
company
is
entitled
to
deduct
the
appropriate amount under the head of
'TDS' accordingly - directions are also
issued to the tribunal to follow the
guidelines issued in case of 'Bajaj Allianz
General Insurance Com. Pvt. Ld. Vs UOI &
ors.'.(Para - 34, 35)

Appeal allowed. (E-11)

List of Cases cited: -

1. Smt. Minakshi Srivastava & ors. Vs Dheeraj
Pandey & ors., F.A.F.O. No. 3425/ 2016, decided
on 11.03.2022,

2. Sunita & ors. Vs Raj. Sate Road Transport
Corporation & anr., 2019 (1) T.A.C. (S.C.),

3. Mangla Ram Vs Oriental Insurance Co. Ltd. &
ors., 2018 (4) Supreme 525

4. Smt. Kaushnuma Begum & ors. Vs The New
India Assurance Co. Ltd. (2001) 2 SCC 9.

5. Vimla Devi & ors. Vs National Insurance Co.
Ltd.& ors., 2019 (133) ALR 768.

6. Anita Sharma Vs New India Assurance Co.
Ltd. (2021) 1 SCC 171

7. Dulcina Fernandes & ors. Vs Joaquim Xavier
Cruz & anr., AIR 2014 SC 58.

8. Reliance General Insurance Co. Ltd. Vs
Subbulakshmi & ors., passed in C.M.A. No. 1482
of 2017 [C.M.P. No. 7919 of 2017. (CMA Sr. No.
76893 of 2016)]

9. Puspabai Purshottam Udeshi Vs Ranjit
Ginning and Pressing Co., 1977ACJ 343
(SC).

10. FAFO No. 1818/2012 (Bajaj Allianz General
Insurance Co.Ltd. Vs Smt. Renu Singh & ors.)
decided on 19.7.2016

11. Bithika Mazumdar Vs Sagar Pal, (2017) 2
SCC 748

12. Vimal Kanwar & ors. Vs Kishore Dan & ors.,
2013 0 Supreme(SC) 441

13. Sarla Verma & ors. Vs Delhi Transport
Corporation & anr., 2009 LawSuit (SC) 613

14. National Insurance Co. Ltd. Vs Pranay Sethi
& ors., 2017 LawSuit (SC) 1093
7 All. Smt. Ramo Devi & Ors. Vs. ICICI General Insurance & Ors.
25
15. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (S.C.)

16. A.Vs Padma V/s. Venugopal, Reported in
2012 (1) GLH 442

17. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co. Ltd., reported in 2007(2) GLH
291

18. Smt. Sudesna & ors. Vs Hari Singh & anr.,
Review Application No.1 of 2020 in First Appeal
From Order No.23 of 2001

19. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd., First Appeal From
Order No.2871 of 2016, decided on 19.3.2021

20. Bajaj Allianz General Insurance Company
Pvt. Ltd. Vs U.O.I.& ors., vide order dated
27.01.2022

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

1. By way of this appeal, the
claimants-appellants who are legal heirs of
the deceased have challenged the judgment
and order dated 17.10.2014 passed by
Motor Accident Claims Tribunal/ District
Judge, Ghaziabad (hereinafter referred to as
''Tribunal') in M.A.C.P. No. 224 of 2013.
The
appellants'
claim
petition
for
compensation on account of the death of
the sole bread earner came to be dismissed
by the Tribunal.

2. The brief facts as culled out from
the record, placed before this Court are that
on 09.01.2013 deceased Rajendra Kumar
Pal was returning to his house after
completing his duty from Ghaziabad
Railway Station. At about 7:30 PM, when
the deceased reached near Ghantaghar and
when the deceased beside the road, a
motorcycle bearing no. DL 13 SF 1906,
which was being driven very rashly and
negligently by its driver, hit the deceased
and fled towards Mohan Nagar.

3. The deceased being on bicycle is
not dispute and the accident occurred
between the bicycle driven by the deceased
and the motorcycle driven by the opponent.

4. In this accident, deceased sustained
serious injuries. He was taken to Narendra
Mohan Hospital from where he was
referred to Max Hospital, Delhi where on
21.01.2013 he died during treatment on
account of injuries sustained in the
aforesaid accident. It is also averred that at
the time of accident, the deceased was
serving in Northern Railway. The First
Information Report of the accident was
lodged at police station Kotwali, District
Ghaziabad.

5. Heard Mr. Sanjay Kumar Singh,
learned counsel for the appellants and Mr.
Rahul Sahai, learned counsel for the
Insurance Company. None is present on
behalf of owner.

6. It is submitted by learned counsel
for the cliamants-appellants that learned
Tribunal has rejected the claim petition of
the appellants on the ground that appellants
have failed to prove that the accident
occurred due to rash and negligent driving
of the motorcycle in question, though
involvement of vehicle is accepted by the
learned Tribunal but learned Tribunal has
failed to appreciate the evidence in right
perspective. It is also submitted that
Investigating Officer has submitted the
charge sheet against the Sachin Kumar who
was driving the motorcycle at the time of
accident.

7. It is further submitted by learned
counsel for the claimants-appellants that
learned Tribunal has not considered the
averments made by driver of motorcycle in
his written statement where he has admitted
26 INDIAN LAW REPORTS ALLAHABAD SERIES
the accident. Although, he has maintained
that he was not negligent while driving the
motorcycle. Learned counsel for the
appellants has submitted that factum of
accident is accepted by the driver of the
motorcycle yet the learned Tribunal has not
placed reliance on the aforesaid averment.
It is next submitted that site plan, prepared
by the Investigating Officer during the
investigation,
is
not
taken
into
consideration by learned Tribunal even the
evidence of eye witnesses have been
discarded/brushed aside. It is submitted that
finding recorded by the learned Tribunal
are perverse and bad in the eye of law and
against the settled legal position for
deciding claim petition arising out of motor
accident.

8. Mr. Rahul Sahai, learned counsel
for the Insurance Company has submitted
that on the basis of evidence on record, it is
nowhere proved that the motorcycle in
question was involved in the aforesaid
accident. It is further submitted that First
Information Report was lodged against
unknown vehicle and after two months of
the accident, an application was given to
the police authorities mentioning that the
motorcycle no. DL 13 SF 1906 was
involved. Evidence in this regard is totally
concocted as to how the informant knew
the number of offending motorcycle after
two months of the accident.

9. It is further submitted by learned
counsel for the Insurance Company that
learned Tribunal meticulously examined
the evidence on record and found that
entire evidence regarding the accident,
involving the aforesaid motorcycle are
based on concocted story, hence, learned
Tribunal is justified in not relying the
evidence led by the claimants-appellants
and the claim petition is rightly rejected. It
is further submitted that there is no
illegality or infirmity in the impugned
judgment, which calls for any interference
by this Court.

10. Having heard learned counsel for
the parties. Certain aspects as prelude, we
require our attention:-

(a)
No
doubt
the
First
Information Report was lodged against the
unknown vehicle but it is to be kept in
mind that the informant was not the eye
witness of the accident.

(b) The involvement of vehicle
was known to the informant, he moved an
application to the police authorities.

(c) Investigation is conducted by
the police in order to reach to the logical
conclusion that vehicle was involved,
hence, it would not make any difference
whether initially the F.I.R. was lodged
against unknown vehicle as F.I.R. is only
staring point of investigation. However, on
completion of investigation, charge sheet
was submitted against Shri Sunil Kumardriver of the motorcycle and once the
F.I.R., charge sheet and post-mortem report
are filed before the learned Tribunal, prima
facie, they would prove that the accident
had occurred with the vehicle in question.
The postmortem report of the deceased
goes to show that he died out of injuries
sustained in vehicular accident. The driver
of the motorcycle admitted the factum of
the accident in his written statement filed
before the learned Tribunal which has not
been proved to be in collusion by the
insurance and it is also not proved by
leading any cogent evidence that the
vehicle was not involved.

11. We are supported in our view by
the recent pronouncement of Division
Bench of this Court in Smt. Minakshi
7 All. Smt. Ramo Devi & Ors. Vs. ICICI General Insurance & Ors.
27
Srivastava and Others Vs. Dheeraj Pandey
and Others, F.A.F.O. No. 3425 of 2016,
decided on 11.03.2022, where the factum
of accident is accepted by the owner will
apply and enure for the benefit of these
claimants.

12. Learned counsel for the appellants
has relied on the aforesaid decision of this
Court
in
Smt.
Minakshi
Srivastava
(Supra), wherein it is held that once the
owner has accepted the involvement of
vehicle in accident, the Tribunal cannot
dismiss the claim petition unless proved
otherwise. In this case on hand, although in
his testimony, the driver of the motorcycle
has deposed that accident did not take place
by his motorcycle but in his written
statement he has stated that accident did not
take place due to his negligence, accident
occurred due to the negligence of the
deceased by not complying with the traffic
rules. Hence, when the factum of the
accident is admitted by the driver, his
evidence against the pleadings cannot be
accepted.

13. Perusal of impugned judgment
goes to show that though the learned
Tribunal has held that the burden of proof
in claim petition under Motor Vehicles Act,
1988 cannot be considered as in civil or
criminal cases yet the learned Tribunal has
fallen in error in not considering the matter
under beneficial piece of legislation. The
learned Tribunal has come to conclusion
that
claimants
did
not
prove
that
respondent-3 was driving the vehicle at the
time of the accident, but the charge sheet
was
submitted
against
the
driverrespondent no.3, was primary evidence of
his driving the vehicle which has not been
rebutted nor proved to be concocted as it is
in
evidence
of
driver
of
motorcyclist/respondent no.3 as D.W.-1
that he was coming from Chhapraula and
going to Mohan Nagar. Hence, we hold that
the motorcycle was involved in the
accident.

14. The evidence on record comprises
of oral testimony of witnesses and the
documentary evidence in support of the
said accident and injuries caused to
deceased. The post-mortem report shows
that the deceased died due to the injuries
which he had sustained in the accident and
hence, it is a homicidal death, which is
proved. In our case, the case title Sunita
and Others Vs. Rajasthan Sate Road
Transport Corporation and Another, 2019
(1) T.A.C. (S.C.) will also be applicable to
the facts of this case. The decision of the
Supreme Court in the case of Mangla Ram
Vs. Oriental Insurance Co. Ltd. and
Others, 2018 (4) Supreme 525, relied by
the appellants goes to show that pleadings
of parties will have to be scrutinized in a
holistic manner.

15. We are fortified in our view by the
decisions of Apex Court in (a) Smt.
Kaushnuma Begum And Ors vs. The New
India Assurance Co. Ltd. (2001) 2 SCC 9.,
(b) Vimla Devi and others Vs. National
Insurance Company Limited and others,
2019 (133) ALR 768; (c) Anita Sharma v.
New India Assurance Co. Ltd. (2021) 1
SCC 171 (d) Dulcina Fernandes & Ors.
vs. Joaquim Xavier Cruz & Anr., AIR
2014 SC 58, and on the decision of Madras
High Court in Reliance General Insurance
Co. Ltd. Vs. Subbulakshmi and Others,
passed in C.M.A. No. 1482 of 2017
[C.M.P. No. 7919 of 2017. (CMA Sr. No.
76893 of 2016)] and the decision of Apex
Court referred in the said case namely
Puspabai Purshottam Udeshi Vs. Ranjit
Ginning and Pressing Co., 1977ACJ 343
(SC), the ratio laid in these decisions would
28 INDIAN LAW REPORTS ALLAHABAD SERIES
be applicable in such matters where
Tribunal takes hyper technical stand in
dismissing the claim petition which is filed
under the beneficial piece of legislation.
Despite the fact that judgment of Smt.
Kaushnuma Begum And Ors vs. The New
India Assurance Co. Ltd. (2001) 2 SCC 9
was very much in vogue, the Tribunal has
dismissed the claim petition holding that
there are discrepancies in the evidence of
prosecution witnesses.

16. Now, we take up the issue of
negligence as to who was negligent in the
accident. The term negligence means
failure to exercise care towards others
which a reasonable and prudent person
would in a circumstance or taking action
which such a reasonable person would not.
Negligence can be both intentional or
accidental which is normally accidental.
More particularly, it connotes reckless
driving and the injured must always prove
that the either side is negligent. If the injury
rather death is caused by something owned
or controlled by the negligent party then he
is directly liable otherwise the principle of
"res ipsa loquitur" meaning thereby "the
things speak for itself" would apply.

17. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or
author of the accident would be liable for
his contribution to the accident having
taken place.

18. The Division Bench of this Court
in First Appeal From Order No. 1818 of
2012 ( Bajaj Allianz General Insurance
Co.Ltd. Vs. Smt. Renu Singh And Others)
decided on 19.7.2016 has held as under:

"16. Negligence means failure to
exercise required degree of care and
caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence.
It is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one. It is rather a
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no
legal consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

17. It would be seen that burden
of proof for contributory negligence on the
part of deceased has to be discharged by
the opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection
where two roads cross each other, it is the
duty of a fast moving vehicle to slow down
and if driver did not slow down at
intersection, but continued to proceed at a
high speed without caring to notice that
another vehicle was crossing, then the
conduct of driver necessarily leads to
conclusion that vehicle was being driven by
him rashly as well as negligently.

18. 10th Schedule appended to
Motor
Vehicle
Act
contain
statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation
clearly directs that the driver of every
7 All. Smt. Ramo Devi & Ors. Vs. ICICI General Insurance & Ors.
29
motor vehicle to slow down vehicle at every
intersection or junction of roads or at a
turning of the road. It is also provided that
driver of the vehicle should not enter
intersection or junction of roads unless he
makes sure that he would not thereby
endanger
any
other
person.
Merely,
because driver of the Truck was driving
vehicle on the left side of road would not
absolve him from his responsibility to slow
down vehicle as he approaches intersection
of roads, particularly when he could have
easily seen, that the car over which
deceased was riding, was approaching
intersection.

19. In view of the fast and
constantly increasing volume of traffic,
motor vehicles upon roads may be regarded
to some extent as coming within the
principle of liability defined in Rylands
V/s. Fletcher, (1868) 3 HL (LR) 330. From
the point of view of pedestrian, the roads of
this country have been rendered by the use
of motor vehicles, highly dangerous. 'Hit
and run' cases where drivers of motor
vehicles who have caused accidents, are
unknown. In fact such cases are increasing
in number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the case
may be, should be entitled to recover
damages if principle of social justice
should have any meaning at all.

20. These provisions (sec.110A
and sec.110B of Motor Act, 1988) are not
merely
procedural
provisions.
They
substantively affect the rights of the parties.
The right of action created by Fatal
Accidents Act, 1855 was 'new in its species,
new in its quality, new in its principles. In
every way it was new. The right given to
legal representatives under Act, 1988 to file
an application for compensation for death
due to a motor vehicle accident is an
enlarged one. This right cannot be hedged
in by limitations of an action under Fatal
Accidents Act, 1855. New situations and
new dangers require new strategies and
new remedies.

21. In the light of the above
discussion, we are of the view that even if
courts may not by interpretation displace
the principles of law which are considered
to be well settled and, therefore, court
cannot dispense with proof of negligence
altogether in all cases of motor vehicle
accidents, it is possible to develop the law
further on the following lines; when a
motor
vehicle
is
being
driven
with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits (per three-Judge Bench in Jacob
Mathew V/s. State of Punjab, 2005 0
ACJ(SC) 1840).

22. By the above process, the
burden of proof may ordinarily be cast on
the defendants in a motor accident claim
petition to prove that motor vehicle was
being driven with reasonable care or that
there is equal negligence on the part the
other side."

19. The learned Tribunal has failed to
consider the above aspect while dismissing
the claim petition. Hence, this appeal
requires to be allowed and the impugned
judgment and award of the Tribunal
dismissing the claim petition being against
the mandate of law and facts requires to be
quashed.

20. The First Information Report was
lodged by the brother of the deceased and it
was averred that at the time of accident, the
deceased was coming from Ghaziabad
Railway Station on his bicycle after
30 INDIAN LAW REPORTS ALLAHABAD SERIES
completing his duty. When the deceased
took turn from G.T. road towards his house,
the vehicle hit him from behind but in oral
testimony,
the
witnesses
twisted
the
statements and deposed that at the time of
accident, deceased was stationary on
bicycle beside the road, which cannot be
accepted. Moreover, the site plan also goes
to show otherwise. The site plan is inconsonance with the averments of F.I.R.
that the accident took place when the
deceased took turn towards his house from
G.T. road. Copy of site plan is annexed in
paper book, which goes to show that there
was a divider on G.T. road and there is also
a cut in the divider for crossing the road
towards otherwise. The accident had taken
place at the point where there is opening in
the divider and the deceased is shown
going and turning towards his right side
from the road and offending motorcycle is
shown coming from behind. The driver of
motorcycle should have slowed down the
speed of motorcycle, when he was
approaching the place of accident in the
divider because it is used for crossing the
road and if it would have been done by the
driver of the motorcycle, the accident could
have been avoided.

21. In fact whether the deceased was
also negligent has also to be decided and
that he took turn towards right side from
middle of the road without ensuring that
any vehicle is not coming from behind
because if this precaution would have been
taken by the deceased, then also the
accident could have been avoided. But it is
seen that neither the driver of the
motorcycle nor the deceased took any
precaution due to which the accident could
have been avoided. Both are co-authors of
the accident. Hence, we hold that driver of
the motorcycle and the deceased were both
negligent in driving in their respective
vehicles, hence, we hold the negligence of
the driver of motorcycle and the deceased
to the tune of 50% each.

22. The counsel for the respondent
contended that no amount can be granted as
the petition was dismissed and requested to
reject the appeal and to the alternative or
remand the same to the Tribunal to decide
the compensation. The contentions are
rejected in view of the decision in Bithika
Mazumdar Vs. Sagar Pal, (2017) 2 SCC
748, and this Court feels that as nine years
have elapsed from filing of appeal and that
the record is before this Court, instead of
directing the parties to go before the
Tribunal only for the assessment of
compensation as the deceased was a
salaried person which could cause further
delay rather it would be more justifiable if
this Court decides the quantum as this
Court has to decide only quantum under
Section 166 of the Act, 1988 which would
be the final amount payable to the
claimants.

23. The compensation to be awarded
is on the settled legal principles enunciated
in the judgments of the Apex Court relating
to persons who was in government job.
Therefore,
we
are
deciding
the
compensation here. Hence, we decide the
compensation here without relegating the
petitioners to the MACT as the record is
here. There is no dispute about the salary
which is proved by cogent evidence and,
therefore, as nine years have already
elapsed.
We
rancher
to
decide
the
compensation here without relegating the
parties to the Tribunal as the other issues
have been decided by the Tribunal meaning
thereby that the policy of the vehicle was
invoked and there was no breach of policy.
The driver of the motorcycle had proper
driving
licence
and,
therefore,
the
7 All. Smt. Ramo Devi & Ors. Vs. ICICI General Insurance & Ors.
31
Tribunal's view is so vulnerable that it
cannot stand the scrutiny of this Court.

24. Now, we take up the issue of
quantum of compensation payable to the
appellants-claimants. As per the claim
petition, the deceased was serving in
Northern Railway in account section and
was getting salary at Rs.61,635/- per
month.

25.

Learned
counsel
for
the
appellants-claimants has submitted that
Senior
Section
Officer/Accounts
of
Northern Railway is produced as P.W.-4
before the learned Tribunal who has proved
the income of the deceased. It is also
submitted that deceased was a government
servant, hence he was entitled to get
compensation for future loss of income
also.

26. Learned counsel for the Insurance
Company has submitted that net income of
the deceased is shown at Rs.30,926/- per
month, which is to be taken into
consideration. The accident of the deceased
had taken place on 09.01.2013, hence,
salary slip for the month of December,
2012 is relevant, which is on record. The
aforesaid salary slip is proved by P.W.-4
Ashok
Kumar,
Senior
Section
Officer/Accounts, Northern Railway, who
has deposed before the learned Tribunal on
producing the original records.

27. As per the testimony of P.W.-4,
the gross monthly salary of the deceased
was Rs.61,635/-. As per the judgment of
Hon'ble Apex Court in Vimal Kanwar and
Others VS. Kishore Dan and Others, 2013
0 Supreme (SC) 441, the component of
income tax would be deducted from the
salary and provident fund shall not be
deducted. Hence, out of gross salary,
Rs.6,425/-
towards
income
tax
and
Rs.700/- towards deduction for railway
society and Rs.30 for insurance shall be
deducted. Hence, the computable salary
comes at Rs.54,480/- per month.

28. The age of the deceased was 57
years, hence in light of the decision of the
Apex Court in the case of Sarla Verma and
Others Vs. Delhi Transport Corporation
and Another, 2009 LawSuit (SC) 613 and
National Insurance Co. Ltd. Vs. Pranay
Sethi and Others, 2017 LawSuit (SC)
1093, and due to being employed and
having the age of 57 years, 15% shall be
added towards future prospects in the
income of the deceased.

29. Keeping in view the number of
dependents, 1/3rd shall be deducted for
personal expenses. The multiplier of 9 has
to be applied. Under the non pecuniary
head, claimants-appellants shall be entitled
to get Rs.15,000/- for loss of estate and
Rs.15,000/- for funeral expenses. Apart
from it, wife of the deceased shall also be
entitled to get Rs.40,000/- for loss of
consortium. In this way, claimants shall get
Rs.70,000/-
under
the
head
of non
pecuniary damages with increase of 10%
for every three years as per the judgment of
Apex Court in Pranay Sethi (Supra)
rounded off Rs.1,00,000/-.

30. The total compensation payable to
the appellants are computed herein below:

(i) Annual income Rs.54,480/-
per month X 12 = Rs.6,53,760/- per annum.

(ii) Percentage towards future
prospects : 15%. Rs.98,064/-

(iii) Total income : Rs.6,53,760 +
Rs.98,064/- = Rs.7,51,824/-

(iv) Income after deduction of
1/3rd : Rs.5,01,216/-
32 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) Multiplier applicable : 09

(vi)
Loss
of
dependency
:
Rs.5,01,2016 X 09 = Rs.45,10,944/-

(vii) Amount under non pecuniary
head: Rs.70,000/- +30,000/- = 1,00,000/-

(viii)
Total
compensation:
Rs.45,10,944/- + Rs.1,00,000/- = Rs.
46,10,944/-

(ix) Amount after 50% deduction
towards contributory negligence :

Rs.46,10,944/- - Rs23,05,472/- =
Rs.23,05,472/-

31. As far as issue of rate of interest is
concerned, it should be 7.5% in view of the
latest decision of the Apex Court in
National Insurance Co. Ltd. Vs. Mannat
Johal and Others, 2019 (2) T.A.C. 705
(S.C.) wherein the Apex Court has held as
under:

"13.
The aforesaid
features
equally apply to the contentions urged on
behalf of the claimants as regards the
rate of interest. The Tribunal had
awarded interest at the rate of 12% p.a.
but the same had been too high a rate in
comparison
to
what
is
ordinarily
envisaged in these matters. The High
Court,
after
making
a
substantial
enhancement in the award amount,
modified the interest component at a
reasonable rate of 7.5% p.a. and we find
no reason to allow the interest in this
matter at any rate higher than that
allowed by High Court."

32. In view of the above, the appeal is
allowed. Judgment passed by the Tribunal
is set aside. 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.

33. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of investment
be passed by Tribunal.

34. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291 and this
High Court in 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 claimants 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 v. Chola Mandlam M.S. General
Insurance Co. Ltd.) decided on 19.3.2021
while disbursing the amount.

35. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex
Court in Bajaj Allianz General Insurance
Company Pvt. Ltd. Vs. Union of India and
Others, vide order dated 27.01.2022, as the
7 All. Sangram Yadav Vs. State of U.P. & Ors.
33
purpose of keeping compensation is to
safeguard the interest of the claimants.
Since long time has elapsed, the amount be
deposited in the Saving Bank Account of
claimant(s) in a nationalized Bank without
F.D.R.
----------
(2022)07ILR A33
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Writ A No. 6432 of 2019

Sangram Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ishan Deo Giri, Sri Pawan Giri

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension - Enquiry -
Uttar Pradesh Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 - Rule 4(1) - The law
is certain that the prosecution must stand
on its own legs basing its findings on the
evidence that has been led by it. It
matters little as to whether the accused
has made out a plausible defence or not.
(Para 2)

Even if the petitioner had not replied to
the charges and had not appeared on the
dates
fixed
when
the
enquiry
was
undergone, it was the bounden duty of the
Enquiry Officer to have seen whether the
charges were proved on the basis of the
evidence which was led by it. The cook was
a person affected. The police officer namely
Vishwajeet Pratap Singh was only a person who
had informed the Superintendent of Police,
Jaunpur on 23.7.2014 about the incident of
slapping etc. which took place on 21/22 July
2014. He was not an eye-witness. Further no
individual who had seen the incident was
summoned as an eye-witness to prove the
incident. (Para 5)

B. Mere suspicion should not be allowed to
take the place of proof even in domestic
enquiries. The principle that in punishing the
guilty scrupulous care must be taken to see that
the innocent are not punished, applies as must
to regular criminal trials as to disciplinary
enquiries held under the statutory rules. (Para
2)

There was only a medical report based on
suspicion of a smell coming of alcohol from the
petitioner while there was no blood report or
urine report of the petitioner which actually
would have proved that the petitioner had
actually consumed liquor/alcohol to an extent to
be called in a state of drunkenness. (Para 5)

Writ petition allowed. (E-4)

Precedent followed:

1. Bachubhai Hassanalli Karyani Vs St. of Mah.,
(1971) 3 SCC 930 (Para 2)

2. Gurcharan Singh & anr. Vs St. of Punj., AIR
1956 SC 460 (Para 2)

3. R. Venkatakrishnan Vs C.B.I., AIR 2010 SC
1812 (Para 2)

4. U.O.I. Vs H.C. Goel, AIR 1964 SC 364 (Para
2)

Present
petition
assails
order
dated
27.08.2018, passed by Superintendent of
Police, Jaunpur, order dated 17.10.2018,
passed by Inspector General of Police,
Varanasi Zone, Varanasi and order dated
25.01.2019, passed by the Additional
Director General of Police, Varanasi Zone,
Varanasi.

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

1. For an incident which occurred on
21/22.7.2014, information was given by the
Station House Officer, Nevdhia, District