# Smt. Shashi Bala & Ors v. Sri Pradeep Singh &Ors

- **Citation:** (2023) 11 ILRA 761
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-09
- **Case number:** First Appeal From Order No. 1849 of 2003
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shashi-bala-ors-v-sri-pradeep-singh-ors-49404
- **Pages:** 13

## Headnote

(A) Tort Law - The Motor Vehicles Act,
1988 - Section 173 - claimants' appeal ,
The Code of Civil Procedure, 1908 - Order
XLI Rule 27 - Production of additional
evidence in Appellate Court - Composite
Negligence - In a case of composite
negligence, the claimants are entitled to
proceed against both or any one of the
joint tortfeasers and recover the entire
compensation from one of them as the
liability is joint and several - site plan is
suggestive of the fact, but not at all
conclusive on the point - In a case relating
to motor accident claims, the claimants
are not required to prove the case as it is
required
to
be
done
in
a
criminal
trial.(Para -42, 44)

Claimants
pursuing
a case of composite
negligence - where deceased was a pillion rider
- entitled to recover entire compensation from
both or any one of the joint tortfeasers - liability
joint and several -Tribunal concluded - Jagdish
Babu not same man as Jagdish Prasad - who
died in a motorcycle accident on 28.03.2003 -
Tribunal's
Findings
on
Truck
Driver
and
Motorcycle Accident - Truck driver not negligent
- Both truck driver and motorcycle rider
negligent -
Site plan suggests head-on collision in middle of
road -Tribunal found no other evidence to
support the claim - except for his wifes
testimony - Tribunal dealt with evidence like a
Criminal tribunal. (Para -21, 40, 42, 44)

HELD: - No justification for the Tribunal to have
gone into the question of the negligence vis-àvis the claimants at all. Tribunal's answers to
other issues, particularly Issues Nos. 4 and 5, to
be manifest errors of law, except for the validity
of the insurance policy, as their findings are
based on the same issue as Issue No.1..
Tribunal, now competent under the 1988 Act,
must proceed with the petition de novo,
excluding the findings on Issue No.3. Impugned
judgment and award passed by MACT set aside.
Matter remitted to competent Tribunal to allow
parties to lead further evidence and decide
claim petition within six months.(Para - 43, 45,
47, 48)

Appeal partly allowed. (E-7)

LIST OF CASES CITED:-

## Text

_Characters 0–39,972 of 43,834. This is a partial read: ask again with offset=39972 for what follows._

11 All. Smt. Shashi Bala & Ors. Vs. Sri Pradeep Singh & Ors.
761
accordance with law after hearing all
parties. The deposit made before the
Employees' Compensation Commissioner
under Section 30 of the Act by the insurers
shall be refunded forthwith.

49. Costs easy.
----------
(2023) 11 ILRA 761
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2023

BEFORE

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

First Appeal From Order No. 1849 of 2003

Smt. Shashi Bala & Ors. ...Appellants
Versus
Sri Pradeep Singh &Ors. ...Respondents

Counsel for the Appellants:
Sri Ram Singh, Sri M.P. Sarraf

Counsel for the Respondents:
Sri Om Prakash Mishra, Sri B.P. Verma

(A) Tort Law - The Motor Vehicles Act,
1988 - Section 173 - claimants' appeal ,
The Code of Civil Procedure, 1908 - Order
XLI Rule 27 - Production of additional
evidence in Appellate Court - Composite
Negligence - In a case of composite
negligence, the claimants are entitled to
proceed against both or any one of the
joint tortfeasers and recover the entire
compensation from one of them as the
liability is joint and several - site plan is
suggestive of the fact, but not at all
conclusive on the point - In a case relating
to motor accident claims, the claimants
are not required to prove the case as it is
required
to
be
done
in
a
criminal
trial.(Para -42, 44)

Claimants
pursuing
a case of composite
negligence - where deceased was a pillion rider
- entitled to recover entire compensation from
both or any one of the joint tortfeasers - liability
joint and several -Tribunal concluded - Jagdish
Babu not same man as Jagdish Prasad - who
died in a motorcycle accident on 28.03.2003 -
Tribunal's
Findings
on
Truck
Driver
and
Motorcycle Accident - Truck driver not negligent
- Both truck driver and motorcycle rider
negligent -
Site plan suggests head-on collision in middle of
road -Tribunal found no other evidence to
support the claim - except for his wifes
testimony - Tribunal dealt with evidence like a
Criminal tribunal. (Para -21, 40, 42, 44)

HELD: - No justification for the Tribunal to have
gone into the question of the negligence vis-àvis the claimants at all. Tribunal's answers to
other issues, particularly Issues Nos. 4 and 5, to
be manifest errors of law, except for the validity
of the insurance policy, as their findings are
based on the same issue as Issue No.1..
Tribunal, now competent under the 1988 Act,
must proceed with the petition de novo,
excluding the findings on Issue No.3. Impugned
judgment and award passed by MACT set aside.
Matter remitted to competent Tribunal to allow
parties to lead further evidence and decide
claim petition within six months.(Para - 43, 45,
47, 48)

Appeal partly allowed. (E-7)

LIST OF CASES CITED:-

1. Khenyei Vs N.I.A. Co. Ltd., (2015) 9 SCC 273

2. Kusum Lata & ors. Vs Satbir & ors. , (2011) 3
SCC 646

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

This is a claimants' appeal under
Section 173 of the Motor Vehicles Act,
19881. The appellants, who are four in
number, are the widow and the minor
children of the late Jagdish Prasad, the
victim of a fatal motor accident. The
appellants shall hereinafter be called the
'claimants' unless an individual or different
762 INDIAN LAW REPORTS ALLAHABAD SERIES
reference is necessitated by the context.
Respondent No.1 to this appeal, Pratap
Singh, is the owner of the offending
vehicle, a truck bearing Registration No.
HR 38-E-6399. Ram Chandra is the driver
(respondent No. 2 here) of the offending
vehicle whereas respondent No. 3, the
Divisional Manager, National Insurance
Company Ltd., Samad Road, Aligarh, are
the insurers. Respondent Nos. 1, 2 and 3
shall hereinafter be referred to as the driver,
the owner and the insurers in that order.

2. The facts giving rise to this appeal
are these :

Jagdish Prasad alias Jagdish
Babu son of the late Munshi Lal, resident
of Mohalla Abul Fazal, Town Jalali, Police
Station Harduaganj, District Aligarh was a
medical practitioner aged about 40 years.
He was a R.M.P. (Registered Medical
Practitioner) doctor and would earn a sum
of ₹10,000/- per mensem from his practice.
He was practising medicine at Jalali for the
past 22 years. On the 23rd March, 2001, at
11:00 O' Clock in the morning hours,
Jagdish Prasad was proceeding from his inlaws' place located in Village Karsan to
Etah, riding pillion on a motorcycle,
bearing Registration No. U.P. 75 B-4037.
The motorcycle was being ridden at a slow
speed by one Neeraj Kumar son of
Siyaram. It was moving on one side of the
road. As the motorcycle reached a Village
called Nagla Kisi on the Awagarh-Etah
road, a truck bearing Registration No. HR
38-E-6399 of Tata approached from the
opposite direction, driven rashly and
negligently. It went to the wrong side of the
road and hit the ill-fated motorcycle. In
consequence of the impact, both the rider
and the pillion sustained grievous injuries.
Neeraj Kumar died on way to the hospital,
whereas Jagdish Prasad, who had sustained
grievous head injuries was taken to the J.N.
Medical College Hospital, Aligarh for
treatment. He died during treatment on
28.03.2001 at 5:00 O'Clock in the morning.

3.

The
claimants,
accordingly,
petitioned the Tribunal praying that they
may be awarded compensation in the sum
of ₹20,57,000/-.

4. Upon notice being issued to the
opposite parties to the claim petition, that is
to say, the owner, driver and the insurers,
the insurers appeared and put in their
written statement on 01.12.2001. The
claimants' case was generally denied. In
the additional pleas, it was averred that
unless a valid insurance policy and the
driver's license, besides other papers
relating to the offending vehicle were
produced, the insurers were not liable to
pay any compensation. It was also pleaded
that
the
insurers
had
no
personal
knowledge about the accident. It was
averred that the insurers and the owner of
the ill-fated motorcycle were not made
parties to the claim petition and, therefore,
the claim was bad for non-joinder of the
necessary parties.

5. The owner did not file any written
statement.

6. On the pleadings of parties, the
following issues were framed (translated
from Hindi to English) :

1. Whether on 22.3.2001 at about
11 o'clock Jagdish Prasad, son of Munshi
Lal, resident of Mohalla Abul Fazal Jalali,
P.S. Harduaganj, was riding pillion on
Motorcycle
bearing
Registration
No.
UP75B-4037 along with Neeraj, son of
Siyaram, proceeding from Karsan to Etah
and when they reached Awagarh road near
11 All. Smt. Shashi Bala & Ors. Vs. Sri Pradeep Singh & Ors.
763
village Kisi, Truck bearing No.HR 38 E
6399 driven by its driver at a high speed
and negligently hit the motorcycle, in
consequence
whereof,
Jagdish
Prasad
sustained grievous injury and died on
28.3.2001?

2. Whether on the date of the
accident, drivers of both the vehicles had
valid driving licences?

3. Whether on the date of the
accident, both the vehicles had a valid
insurance policy?

4. Whether the claimants are
entitled to the compensation demanded? If
yes, from which opposite party and how
much?

5. Relief, if any, to which the
claimants are entitled?

7. The Tribunal has decided Issue No.
1, holding that it was not proved that
Jagdish Prasad, who died on 28.03.2001 at
the J.N. Medical College Hospital, Aligarh
was the same man as Jagdish Babu, the
deceased who had sustained injuries in the
accident on 22.03.2001 on the AwagarhEtah Road, near Nagla Kisi, involving the
offending truck. It was also held that the
negligence of the truck driver in the
accident was not proved, because the siteplan shows that the accident occurred in the
middle of the road. The inference about
lack of exclusive negligence of the driver
was also based on the fact that it was
opined by the Tribunal that the ill-fated
motorcycle had two pillion riders, which is
an offence under the Act of 1988. The
Tribunal, therefore, held that the driver and
the rider of the motorcycle had contributed
to the accident. Thus, Issue No. 1 was
decided against the claimants.

8. The Tribunal answered Issue No. 2
in the negative, holding that the driving
license of both the driver and the rider of
the motorcycle were not proved, because
none of the parties have filed these
documents.

9. Issue No. 3 has been answered in
the manner that the cover note issued by
the insurers showed that the offending
truck had a valid and effective insurance
policy in its favour on the date of the
accident.

10. Issue Nos. 4 and 5 were dealt with
together. It was opined that Jagdish Prasad,
the deceased who died in consequence of
injuries at the J.N. Medical College
Hospital, Aligarh was not proven to be the
same man who had sustained these injuries
in the accident on 22.03.2001 while riding
pillion on the motorcycle on the AwagarhEtah Road near Nagla Kisi, where the
accident happened. It was held that in this
view of the matter, the claimants are not
entitled to any compensation.

11 . It was also held to dispel the
claimants' doubts, as the Tribunal has
chosen to say, that Jagdish Prasad, a
photostat copy of whose death certificate
had been filed on record and Jagdish Babu,
a resident of Mathura, who had got himself
registered as a private medical practitioner, are not
proven to be the same person. There are other
remarks that the income of Jagdish Prasad is not
proved, because his occupation is not established.

12. The Tribunal, on the foot of these
findings, ordered the claim petition to be
dismissed with costs of ₹1,000 payable by the
claimants to the insurers.

13. Aggrieved, this appeal has been
preferred by the claimants.
764 INDIAN LAW REPORTS ALLAHABAD SERIES

14. During the course of hearing
before this Court, an application under
Order XLI Rule 27 of the Code of Civil
Procedure, 19082 was moved on behalf of
the claimants, seeking to admit to record
additional evidence. The claimants, through
this application, proposed to bring on
record a certified copy of the judgment and
award dated 05.06.2004 passed by the
Motor Accident Claims Tribunal/Special
Judge (S.C./S.T. (P.A.) Act), Etah in Motor
Accident Claims Petition No. 139 of 2001.
It is a claim relating to the same accident as
the one giving rise to the present appeal.
This Court, vide order dated 24.11.2022,
allowed the said application and admitted
the judgment and award
passed in
M.A.C.P. No. 139 of 2001 by the Tribunal
at Etah to record. Under the orders of this
Court, it was marked as Exhibit-1 on
26.11.2002.

15. Heard Mr. Ram Singh, learned
Counsel for the claimants, Mr. B.P. Verma,
learned Counsel appearing on behalf of the
driver and Mr. Om Prakash Mishra, learned
Counsel appearing on behalf of the
insurers.

16. It is argued by Mr. Ram Singh
that the Tribunal has gone askew in holding
that Jagdish Prasad and Jagdish Babu were
two different persons, and that the identity
of the victim of the accident as the
claimant's husband Jagdish Babu, who died
at J.N. Medical College Hospital, Aligarh
on 28.03.2001 is not established. He says
that the identity of the deceased as Jagdish
Prasad
alias
Jagdish
Babu
is
well
established by the testimony of P.W.1.,
Smt. Shashi Bala, his widow and one of the
claimants. It is particularly argued that
there is no plea taken in the written
statement filed on behalf of the insurers
that the deceased, Jagdish Prasad, who died
at Aligarh is a person different from the
one who met with the accident at the AgraAwagarh
Road.
It
is
particularly
emphasized that in her testimony, P.W.1,
Smt. Shashi Bala has proved her husband's
death, saying that her husband's name is
Jagdish Prasad, who was also called
Jagdish Babu. She has referred to the
postmortem report relating to the Jagdish
Prasad son of Munshi Lal as well as the
death certificate regarding Jagdish Prasad
son of Munshi Lal, resident of Jalali, who
was admitted to the J.N. Medical College
Hospital, Aligarh on 22.03.2001, and died
during treatment on 28.03.2001, to show
that, in fact, the victim was Smt. Shashi
Bala's husband and the minor claimants'
father, who died as a result of the accident
on
28.03.2001.
It
is,
particularly,
emphasized that the evidence of P.W.2,
Chhotey Singh son of Raghuveer Singh,
who was also a pillion rider, was also an
eye-witness
of
the
accident,
whose
testimony cannot be ignored, as done by
the Tribunal.

17. Learned Counsel has also referred
to the charge-sheet filed by the Police,
where the driver has been challaned with
remarks that in consequence of his rash and
negligent driving, two men died, to wit,
Niresh and Jagdish. It is particularly
submitted by Mr. Ram Singh that the
Tribunal's
approach
is
not
only
hypertechnical, but also one that has dwelt
upon trivial details to ignore far more
glaring evidence, that strongly supports the
claimants' case, not only about the
accident, the driver's negligence, but also
about the identity of the deceased Jagdish
Prasad alias Jagish Babu. It is argued by
Mr. Ram Singh that the approach in a
motor accident claim to be adopted by the
Tribunal, cannot be that of a Criminal
Court, as the learned Judge in the Tribunal
11 All. Smt. Shashi Bala & Ors. Vs. Sri Pradeep Singh & Ors.
765
seems to have done. It is emphasized that
the Tribunal is not bound by strict rules of
pleadings or evidence. It has to evaluate the
evidence wholesomely. There is not the
slightest doubt that the deceased Jagdish
Prasad alias Jagdish Babu perished in the
motor accident and he was one and the
same man of whom the claimants are the
dependants, being his family.

18. It is also argued that the Act of
1988 is a beneficial piece of legislation,
and,
therefore,
while
dealing
with
compensation cases, once the occurrence of
the accident has been established, the
Tribunal's role would be to make a just
award. The issue about identity of the
deceased, Mr. Ram Singh says, is a figment
of imagination of the Judge in Tribunal,
with none of the parties on the either side
questioning it.

19. Learned Counsel appearing for the
insurers and the driver Mr. Om Prakash
Mishra and Mr. B.P. Verma, on the other
hand, are unanimous in saying that the
Tribunal has done a correct evaluation of
the evidence on record to find so much of
contradiction
in
evidence
that
the
deceased's identity is not at all established
as the victim of the accident, that happened
on 22.03.2001 on the Awagarh-Etah Road.
Mr. Mishra appearing for the insurers urged
that according to the claim petition, the
motorcycle was driven by Neeraj (Niresh
Kumar) and the deceased Jagdish Prasad
alias Jagdish Babu was riding pillion, when
the accident happened. Niresh Kumar died
on way to the hospital. The deceased
Jagdish Prasad alias Jagdish Babu received
serious injuries and was admitted to the
J.N. Medical College Hospital, Aligarh for
treatment. The death certificate of Jagdish
Prasad alias Jagdish Babu issued by the
J.N. Medical College Hospital, Aligarh
shows that he was admitted on 22.03.2001
at 03:00 p.m. P.W.2, Chhotey Singh, who
is an eye-witness of the accident and also
said to be riding pillion in breach of
conditions of the insurance policy and the
Act of 1988, has said that the deceased was
rushed to the District Hospital, Etah for
treatment, but the death certificate issued
by the J.N. Medical College Hospital,
Aligarh shows that the deceased was
admitted on 22.03.2001 directly, without
any referral. It is emphasized that the
claimants failed to produce any medical
certificate of medical aid provided by the
District
Hospital,
Etah.
It
is
also
emphasized that the identity of Jagdish
Babu is highly doubtful. He has died in
some other accident, but falsely shown to
be the victim of the accident involving the
vehicle covered by the insurance policy,
that the insurers have issued.

20.

I
have
considered
rival
submissions advanced on behalf of the
parties.

21. The Tribunal has recorded the
most wholesome finding, deciding Issue
No. 1. The first part of the issue that the
Tribunal has considered is if Jagdish
Prasad, who died at the J.N. Medical
College Hospital, Aligarh on 28.03.2003 at
05:00 a.m. was the same man as Jagdish
Babu, Smt. Shashi Bala's husband and the
three other minor claimants' father. The
Tribunal has concluded that Jagdish Babu,
who is said to have met with an accident on
Awagarh-Etah road on 22.03.2001, while
riding pillion on the ill-fated motorcycle,
and who was a private doctor registered
with the Private Medical Practitioners'
Association of India, was a different man
from Jagdish Prasad, who died at the J.N.
Medical College Hospital, Aligarh on
28.03.2001. To reach this conclusion, the
766 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribunal has opined that there is no other
evidence about the fact that Jagdish Babu
and Jagdish Prasad are one and the same
man, except the testimony of Smt. Shashi
Bala, claimant No. 1. It is remarked that
there is no documentary evidence to prove
the fact about the identity of the deceased
as the victim of the fatal accident.

22. This Court must say that in order
to conclude that Jagdish Prasad, son of
Munshi Lal and Jagdish Babu, Smt. Shashi
Bala's husband are two different persons,
the Tribunal has strained logic to reach a
conclusion that is contrary to convincing
evidence that has been led on behalf of the
claimants to prove that the man called
Jagdish Prasad, who died at the J.N.
Medical College Hospital, Aligarh during
treatment on 28.03.2001, was the same
person Jagdish Babu, in whose favour, the
Private Medical Practitioners' Association
has issued a registration certificate, and
who died in the accident near Nagla Kisi on
22.03.2001 in the motor accident.

23. There is this further remark by the
Tribunal that the claimants have not proved
as to which of the two Jagdishs' wife and
children they are. In order to reach this
conclusion, the Tribunal has referred to the
postmortem report relating to Jagdish
Prasad, where his age is recorded as 40
years. The learned Judge has then referred
to the statement of P.W.1, Smt. Shashi Bala
to say that she has not disclosed when she
was married, but claimed the age of her
elder daughter to be 12 years. The Tribunal
has noted that according to the claim
petition, Jagdish Prasad was practising
medicine at Jalali for the last 22 years.

24. The learned Judge of the Tribunal
has then taken note of the testimony of
P.W.2, Chhotey Singh on the issue of the
deceased's identity. Chhotey Singh was
also riding pillion on the ill-fated vehicle.
The Tribunal has remarked that according
to this witness, the persons who had
gathered at the site of the accident carried
them to the District Hospital, Etah and got
this witness and Jagdish Prasad admitted.
Jagdish Prasad was referred to the J.N.
Medical College Hospital, Aligarh. The
Tribunal has then taken note of the fact that
the First Information Report of the incident
was lodged on 22.03.2001, by the brother
of the deceased rider of the motorcycle,
Niresh Kumar, who had reported that by
the time he took his brother to the District
Hospital, Etah, his brother had died,
whereas the other injured were being
treated. This report was lodged at 14:05
hours at Police Station Kotwali Dehat,
Etah, that is to say at 02:05 p.m. The
Tribunal has remarked that in the death
certificate relating to Jagdish Prasad issued
by the J.N. Medical College Hospital,
Aligarh, the time of his admission has been
recorded as 03:00 p.m. on 22.03.2001. It is
said by the Tribunal that there is no
certificate of any treatment of Jagdish
Prasad relating to the District Hospital,
Etah, which would show if he had indeed
received any head injury. It is also
observed that the report was lodged at
Police Station Kotwali Dehat at 02:05 p.m.
on 22.03.2001, whereas Jagdish Prasad was
shown to have been admitted to the J.N.
Medical College Hospital, Aligarh, the
same day at 03:00 p.m., hardly 45 minutes
later. It is remarked that considering the
geographical distance between the Police
Station at Etah and the J.N. Medical
College Hospital at Aligarh, the claimants'
story is rendered suspicious and without
any evidence to dispel that suspicion.

25. Adopting this line of reasoning,
the Tribunal has observed that whether the
11 All. Smt. Shashi Bala & Ors. Vs. Sri Pradeep Singh & Ors.
767
deceased Jagdish Prasad and Dr. Jagdish
Babu, whose private medical practitioner's
certificate has been filed on record, are one
and the same man or two different persons,
is to be seen, amongst others, by the fact
that Jagdish Babu's age is not mentioned
on the registration certificate and his
residence shown to be that of District
Mathura, whereas there is no evidence to
show that Jagdish Prasad practised at
Mathura in the name of Jagdish Babu
earlier. It is then observed that this
certificate has been issued on 13.06.1980
and it mentions also that the applicant
(Jagdish) has been practising as a doctor for
the past five years. According to the
Tribunal, these contents of the certificate
show that Jagdish Babu, in whose name the
certificate of registration has been issued,
would have been practising on 22.03.2001,
the date of the accident, for at least 26-27
years. However, the age of the deceased
was 40 years. The Tribunal has remarked
that on reckoning the age of the man, in
whose favour the certificate of registration
was issued, if he were the same man who
died in the accident, he must have
commenced practise at the age of 13-14
years, which the laws of India do not
permit. It is a position that is impossible to
accept.

26. It is also observed by the Tribunal
that the death certificate issued by the J.N.
Medical College Hospital, of which a
photostat copy has been produced, shows
that the dead body was handed over to the
Police of Police Station Civil Lines,
Aligarh, and after the postmortem too, the
dead body was handed over to the Police.
According to the Tribunal, the chances are
that Jagidsh Prasad died within the local
limits of Police Station Civil Lines, Aligarh
on account of head injuries sustained in
some accident there and was, therefore,
admitted to the J.N. Medical College
Hospital, Aligarh. He died later on, on
28.03.2001.

27. The Tribunal goes on to observe
that the claimant, which is an apparent
reference to Smt. Shashi Bala, has not
examined her brother, who gave her
information about the accident as a witness,
nor the brother's son, who got the First
Information Report registered. It is, again,
observed with regard to the certificate of
registration issued by the Private Medical
Practitioners' Association of India in the
name of Jagdish Babu, showing him to be a
resident of Mathura, that the document is
not above suspicion. The Tribunal has
concluded that the claimants have failed to
prove by the evidence that Jagdish Prasad
and Jagdish Babu, the deceased are one and
the same man and further that Jagdissh
Prasad, who had received head injuries on
22.03.2001 and died on 28.03.2001 at 3:00
p.m. at the J.N. Medical College Hospital,
had received those injuries on 22.03.2001
at 11:00 a.m. in the accident, near Nagla
Kisi.

28. There is no case at all in the
written statement on behalf of the Insurers,
disputing the identity of the deceased,
Jagdish Prasad alias Jagdish Babu. The
grounds on which the Tribunal has
proceeded to hold that Jagdish Babu and
Jagdish Prasad are two different persons, to
say the least, border on perversity. There
was absolutely no reason for the Tribunal
to have inferred from the certificate of
registration dated 13th June, 1980 issued by
the
Private
Medical
Practitioner
Association of India, in favour of Dr.
Jagdish Babu that the deceased's age did
not coalesce with that of the man described
as Dr. Jagdish Babu in the certificate of
registration issued by the said Association.
768 INDIAN LAW REPORTS ALLAHABAD SERIES

29. For one, the Private Medical
Practitioner Association of India is not a
statutory or professional body of doctors,
conferring some kind of a right to practise
medicine under the law upon its members.
The document that is on record at Page
No.62 of the paper-book, bearing Paper
No.17-C2, ex facie shows that it is some
kind of a registered private body, may be
under the Societies Registration Act, sans
legal authority to certify a doctor's practise
or affect his right. Unnecessary emphasis,
therefore, has been laid by the Tribunal
upon reckoning Dr. Jagdish Babu's age
with reference to the said certificate. In her
cross-examination, P.W.1 Smt. Shashi Bala
has said that :

मैं िहीं जाििी नक वह एिोपैनथक डाक्टर थे या
होनमयोपैनथक डाक्टर थे। भाई के कम्पाउण्डरी करिे थे। बाि में
डाक्टरी करिे िगे। मेरे पनि इंजेक्शि िथा िवा भी िेिे थे।

30. P.W.3, Jagdish Prasad in his
examination has testified as follows :

मृिक डा० जगिीश प्रसाि उिद जगिीश बाबू जो
जगिीश बाबू के िाम से जाििे थे। िुघदटिा से पनहिे जिािी के
निराहे बस स्टेण्ड के पास उिकी डाक्टरी की िुकाि थी। मैं अपिे
पररवार वािो के निए िवा उन्ही के यहां से िे जािा था। कस्बा
जिािी िथा आसपास के िोग आिे जािे थे। भीड़ िगी रहिी थी।
इिकी डाक्टरी की िुकाि बहुि सािों पुरािी थी।

31. In his cross-examination, this
witness has further said :

मृिक को जगिीश प्रसाि व जगिीश बाबू के िाम से
जाििे थे।

32. Likewise, P.W.1 Shashi Bala in
her examination-in-chief has said :

मेरे पनि का िाम जगिीश प्रसाि था नजिको जगिीश
बाबू भी कहिे थे।

33. About the last mentioned fact in
her testimony by P.W.1 that her husband's
name was Jagdish Prasad, who was also
known as Jagdish Babu, this witness has
not been contradicted at all in her crossexamination. It is apparent from the
evidence aforesaid that Jagdish Prasad was
also known as Jagdish Babu.

34. So far as the certificate of
registration from the Private Medical
Practitioner
Association
of
India,
describing the deceased as Jagdish Babu, is
concerned, it is, as already said, not a
certificate issued by any statutory body or
authority that the mention of the deceased's
name there would carry any authenticity
about it. It is also to be understood that the
deceased was apparently some kind of a
quack, practicing medicine in the township
of Jalali.

35. Judicial notice can be taken of the
fact that in small towns and villages, one
does come across a large number of
persons unauthorizedly practising medicine
without a formal degree. There are repeat
crack downs to prevent such unauthorized
practice of medicine by the Government
and their agencies, but still in remote areas,
small towns and villages, quacks command
medical practice and are trusted by the
ingorant. The testimony of the deceased's
wife, Smt. Shashi Bala, P.W.1, clearly
shows that the deceased earlier worked as a
compounder with his brother and then
commenced
practising
medicine.
Surprisingly, the Tribunal has noticed this
evidence, but not drawn the obvious
conclusion. Given these circumstances,
there was no necessity at all for the
Tribunal to have gone on an age calculation
exercise, based on the certificate of
registration of a private doctors association
to determine the period of prior practice
11 All. Smt. Shashi Bala & Ors. Vs. Sri Pradeep Singh & Ors.
769
mentioned in it and the number of years of
practice
credited
to
the
deceased,
comparing it with his age and hold that the
deceased Jagdish Prasad, who died at the
J.N. Medical College Hospital, Aligarh,
was a man different from Dr. Jagdish Babu,
the victim of the accident. The Tribunal has
apparently ignored from consideration the
consistent testimony of P.W.1 and P.W.3
that Jagdish Prasad was also called Jagdish
Babu. The parentage of both men is the
same. It is commonplace for a man to be
referred to by his formal name, and another
name
as
well.
Calling
some
man,
apparently well placed in life, with a 'Babu'
added to his name, is also a practice in
vogue in this part of the country.

36. The fact that Dr. Jagdish Babu has
been mentioned in the certificate of
registration issued by the Private Medical
Practitioner Association of India has been
given undue weight by the learned Judge in
the Tribunal, because that certificate does
not come from a statutory or formal
professional body, where precision about
name of the member ought to be expected.

37. The Tribunal has also doubted the
identity of the victim of the accident and
the man who died at the J.N. Medical
College Hospital, Aligarh on 28.03.2001,
because of the geographical distance
between Police Station at Etah, where the
accident was reported and the J.N. Medical
College Hospital at Aligarh. This too is
based on a misreading of evidence.
According to the claimants, their witnesses
as also the FIR, the accident happened at
11:00 a.m. It is true that the FIR about it
was lodged at Police Station Kotwali
Dehat, Etah at 2:05 p.m. on 22.03.2001, but
that is no reference point to gauge time that
would be taken for the deceased to be
conveyed to the J.N. Medical College
Hospital, Aligarh. The FIR mentions that
the victims were taken to the District
Hospital, Etah. It has figured in the
evidence of P.W.2, Chhotey Singh that
Jagdish Prasad was referred from the
District Hospital, Etah to the J.N. Medical
College Hospital, Aligarh. There is no
mention of the fact in all this testimony that
at what time, Jagdish Prasad was referred
by the hospital at Etah to Aligarh.
Therefore, there is no basis for the Tribunal
to have held that the distance between
Police Station Kotwali Dehat, Etah and the
Medical College at Aligarh could not be
covered between 2.05 p.m. and 3.00 p.m.
There is nothing to show in the evidence
that Jagdish Prasad was at the Police
Station till the FIR was registered.
Logically as well, Jatdish Prasad was
critically injured and would have been
rushed to Hospital and not to the Police
Station. The finding of the Tribunal,
therefore, based on gauging of the time
required to travel between Etah and Aligarh
in order to disbelieve the victim's identity is
based on flawed reasoning.

38. The Tribunal has also doubted the
identity of the man, who died at the J.N.
Medical College Hospital, Aligarh on
ground that there is no document of
treatment or reference relating to Jagdish
Prasad from the District Hospital, Etah,
where he was admittedly taken in the first
instance for medical aid. The Tribunal has
thought that once in the evidence it has
figured that Jagdish Prasad was referred
from the District Hospital, Etah to the J.N.
Medical College Hospital, Aligarh, there
ought to have been a letter of reference,
whereas there is none. The approach of the
Tribunal, apart from being hairsplitting and
not
in
keeping
with
inquisitorial
jurisdiction that the Tribunal exercises in
judging a motor accident claim, is flawed,
770 INDIAN LAW REPORTS ALLAHABAD SERIES
because in the emergency of a motor
accident victim, one can expect the doctors
at the District Hospital, Etah, to have
quickly shunted the victim to the higher
centre
at
Aligarh,
without
formally
admitting
him,
administering
some
treatment and writing a letter of reference.
There is no question put to the claimants'
witnesses in this regard. Therefore, absence
of documents of treatment or referral from
the District Hospital, Etah are hardly of
consequence. The Tribunal has most of all
erred in disbelieving the testimony of
Chhotey Singh, who was an extra man on
the pillion. The Tribunal has committed a
manifest error in opining that the presence
of this witness on the scene of accident is
doubtful, because, there is no injury report
produced with regard to him, and his name
does not figure in the list of witnesses,
carried in the charge-sheet relative to the
accident. In the testimony of P.W.2,
Chhotey Singh, it is said in his crossexamination at the instance of the Insurers :

मुझे भी िुघदटिा में चोट आई थी िेनकि थोड़ी िेर में
ही मुझे होश आ गया था।

यह कहिा गिि है नक मै घटिा के समय मौजूि िही
था।और झूठी गवाही िे रहा हूं।

39 . There is no reason to disbelieve
that Chhotey Singh was not an extra-pillion
on the ill-fated motorcycle, merely because
his name does not figure in the list of
witnesses that the Police have filed as part
of the charge-sheet. As to the injury
reports, Chhotey Singh was not confronted
with the question at all as to why there was
no document relating to injuries sustained
by him. Rather, this witness has said that he
did
receive
injuries,
but
regained
consciousness in a short while. It is
suggestive that his injuries were not serious
at all and he might not have received any
kind of formal treatment at a Hospital,
about which there may be record.

40. The Tribunal has also remarked
that the truck driver was either not
negligent or both the truck driver and the
rider of the motorcycle were, because the
site plan shows that the accident was a
head-on collision in the middle of the road.
The site plan is suggestive of the fact, but
not at all conclusive on the point. There is
an eye-witness account of one of the pillion
riders, P.W.2 Chhotey Singh, where in the
examination-in-chief, it is said :

मोटर साईनकि िीरज कुमार चिा रहे थे। गांव नकसी
के पास पहुचे िब सामिे से एक ट्रक संख्या एच०आर०38ई6399 िे िेजी व िापरवाही के साथ मोटर साईनकि में टक्कर मार
िी। मोटर साईनकि बहुि िीमी गनि से कच्चे पटरी पर थी। ट्रक
वािे िे गिि Side में आकर टक्कर मार िी। मेरे भी चोट आई
थी। ट्रक चािक व क्िीिर ट्रक छोड़कर भाग गये थे।

41 . There is no question put to this
witness in the cross-examination on behalf
of the Insurers that may suggest that the
rider of the motorcycle was also equally
negligent.

42. Quite apart, the fact as to which of
the drivers of the two vehicles were guilty
of negligence and in what proportion, so far
as the claimants are concerned, the
deceased being a pillion rider, is quite
irrelevant. It is so because for the
claimants, it is a case of composite
negligence. It is well settled that in a case
of composite negligence, the claimants are
entitled to proceed against both or any one
of the joint tortfeasers and recover the
entire compensation from one of them as
the liability is joint and several. Reference
in this regard may be made in the decision
in Khenyei v. New India Assurance Co.
Ltd.3, where it is held:
11 All. Smt. Shashi Bala & Ors. Vs. Sri Pradeep Singh & Ors.
771

20. This Court in Challa Upendra
Rao [(2004) 8 SCC 517 : 2005 SCC (Cri)
357] and Nanjappan [(2004) 13 SCC 224 :
2005 SCC (Cri) 148] has dealt with the
breach of policy conditions by the owner
when the insurer was asked to pay the
compensation fixed by the Tribunal and the
right to recover the same was given to the
insurer in the executing court concerned if
the dispute between the insurer and the
owner
was
the
subject-matter
of
determination for the Tribunal and the issue
has been decided in favour of the insured.

21. The same analogy can be
applied to the instant cases as the liability
of the joint tortfeasor is joint and several. In
the instant case, there is determination of
inter se liability of composite negligence to
the extent of negligence of 2/3rd and 1/3rd
of respective drivers. Thus, the vehicletrailer-truck which was not insured with the
insurer, was negligent to the extent of
2/3rd. It would be open to the insurer being
insurer of the bus after making payment to
the claimant to recover from the owner of
the trailer-truck the amount to the aforesaid
extent in the execution proceedings. Had
there been no determination of the inter se
liability for want of evidence or other joint
tortfeasor had not been impleaded, it was
not open to settle such a dispute and to
recover
the
amount
in
execution
proceedings but the remedy would be to
file another suit or appropriate proceedings
in accordance with law.

22. What emerges from the
aforesaid discussion is as follows:

22.1. In the case of composite
negligence, the plaintiff/claimant is entitled
to sue both or any one of the joint
tortfeasors and to recover the entire
compensation
as
liability
of
joint
tortfeasors is joint and several.

22.2. In the case of composite
negligence, apportionment of compensation
between two tortfeasors vis-à-vis the
plaintiff/claimant is not permissible. He can
recover at his option whole damages from
any of them.

22.3. In case all the joint
tortfeasors have been impleaded and
evidence is sufficient, it is open to the
court/Tribunal to determine inter se extent
of composite negligence of the drivers.
However, determination of the extent of
negligence between the joint tortfeasors is
only for the purpose of their inter se
liability so that one may recover the sum
from the other after making whole of the
payment to the plaintiff/claimant to the
extent it has satisfied the liability of the
other. In case both of them have been
impleaded and the apportionment/extent of
their negligence has been determined by
the court/Tribunal, in the main case one
joint tortfeasor can recover the amount
from
the
other
in
the
execution
proceedings.

22.4. It would not be appropriate
for the court/Tribunal to determine the
extent of composite negligence of the
drivers of two vehicles in the absence of
impleadment of other joint tortfeasors. In
such a case, impleaded joint tortfeasor
should be left, in case he so desires, to sue
the other joint tortfeasor in independent
proceedings after passing of the decree or
award.

43. There is, therefore, no justification
for the Tribunal to have gone into the
question of the negligence vis-à-vis the
claimants at all.
772 INDIAN LAW REPORTS ALLAHABAD SERIES

44. There is another aspect, which has
been noted by this Court earlier also. The
approach that the learned Judge in the
Tribunal has adopted is one that a criminal
Court
would
do
while
judging
the
prosecution case, which they have to prove
beyond reasonable doubt. That cannot be
the approach of a Motor Accident Claims
Tribunal judging an accident claim under
the Act of 1988. The jurisdiction is
inquisitorial and the law, under which the
Tribunal has to judge, is a social welfare
legislation. The object of the Statute is to
ameliorate the hardship of the unfortunate
victims of motor accidents. The way, the
Tribunal has dealt with evidence, is indeed
one as if it were a criminal trial with the
claimants being required to establish it by
the criminal standard. In this regard,
reference may be made to the decision of
the Supreme Court in Kusum Lata and
others v. Satbir and others4, where it is
observed :

9. There is no reason why the
Tribunal and the High Court would ignore
the otherwise reliable evidence of Dheeraj
Kumar. In fact, no cogent reason has been
assigned either by the Tribunal or by the
High Court for discarding the evidence of
Dheeraj Kumar. The so-called reason that
as the name of Dheeraj Kumar was not
mentioned in the FIR, so it was not possible
for Dheeraj Kumar to see the incident, is
not a proper assessment of the fact
situation in this case. It is well known
that in a case relating to motor accident
claims, the claimants are not required to
prove the case as it is required to be done
in a criminal trial. The Court must keep
this distinction in mind.

45. Except for the finding on Issue
No.3, as regards the validity of the
insurance policy, this Court is of opinion
that the Tribunal has committed manifest
errors of law in answering the other
issues, particularly so as its findings on
Issues Nos.4 and 5 have been rendered
under the shadow of all that it has found
on Issue No.1.

46. So far as Issue No.2 is
concerned, this Court thinks that if the
matter has to go back to the Tribunal, the
parties should have further opportunity to
establish the factum whether the driver of
the offending truck and the rider of the
motorcycle indeed held valid driving
licenses.

47. In the opinion of this Court, the
Tribunal, now competent under the Act of
1988, must try the petition de novo
except for the findings on Issue No.3,
which shall not be disturbed.

48.