# Smt. Sushma Devi & Ors v. Shadra Prasad Yadav & Anr

- **Citation:** (2024) 1 ILRA 1137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-19
- **Case number:** First Appeal From Order No. 2417 of 2007
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sushma-devi-ors-v-shadra-prasad-yadav-anr-50842
- **Pages:** 7

## Headnote

A. First Appeal From Order - Partly
Allowed, Tribunal's Award Modified - The
appellants challenged the Motor Accident Claims
Tribunal's award holding 50% negligence of the
deceased and reducing compensation - Held,
the Tribunal erred in relying on an unproven site
plan, and the appeal was partly allowed, setting
aside the 50% contributory negligence finding
and modifying compensation calculations. (Paras
2, 16, 21)

B. Negligence Determination - Site Plan
Not Reliable - The Tribunal relied on an
unproven site plan to attribute 50% negligence
to the deceased - Held, as per Jiju Kuruvila Vs
Kunjujamma Mohan, Kumari Kiran Vs Sajjan
Singh, and National Insurance Co. Ltd. Vs
Chamundeswari, an unproven site plan cannot
override eyewitness testimony (PW-1 and PW2), and the accident was solely due to the rash
and negligent driving of the truck driver. (Paras
3, 8, 12, 13, 14, 15, 16)

C. Future Prospects - Entitlement Granted
- The Tribunal did not award future
prospects - Held, as per National Insurance
Co. Ltd. Vs Pranay Sethi, the appellants were
entitled to a 40% increase in compensation for
future prospects based on the deceased's age.
(Paras 4, 17)

D. Deduction for Personal Expenses -
Modified - The Tribunal deducted 1/3rd of the
deceased's income for personal expenses -
Held, as per Sarla Verma Vs Delhi Transport
Corporation, with six dependents, only 1/4th
should be deducted, and the award was
modified accordingly. (Paras 4, 18)

E. Multiplier Correction and Interest - The
Tribunal applied a multiplier of 16 - Held,
as per Sarla Verma, the correct multiplier was
15 based on the deceased's age, and the
enhanced compensation was to carry 6% simple
interest from the date of the claim petition until
payment. (Paras 6, 19, 20)

Appeal Partly Allowed.

List of Cases cited:

## Text

1 All. Smt. Sushma Devi & Ors. Vs. Shadra Prasad Yadav & Anr.
1137
Court, which shall now proceed with the
appeal on a day-to-day basis and decide the
same in all eventualities within three months
of the date of receipt of a copy of this
judgment. Costs of this appeal shall abide the
event before the Lower Appellate Court.

31. Let a copy of this judgment be
communicated through the learned District
Judge, Jhansi to the Court, that would now
be in seisen of the appeal.
----------
(2024) 1 ILRA 1137
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 2417 of 2007

Smt. Sushma Devi & Ors. ...Appellants
Versus
Shadra Prasad Yadav & Anr.
 ...Respondents

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

Counsel for the Respondents:
Sri Aditya Singh Parihar, Sri Pavan Kumar
Mishra, Sri Arvind Kumar

A. First Appeal From Order - Partly
Allowed, Tribunal's Award Modified - The
appellants challenged the Motor Accident Claims
Tribunal's award holding 50% negligence of the
deceased and reducing compensation - Held,
the Tribunal erred in relying on an unproven site
plan, and the appeal was partly allowed, setting
aside the 50% contributory negligence finding
and modifying compensation calculations. (Paras
2, 16, 21)

B. Negligence Determination - Site Plan
Not Reliable - The Tribunal relied on an
unproven site plan to attribute 50% negligence
to the deceased - Held, as per Jiju Kuruvila Vs
Kunjujamma Mohan, Kumari Kiran Vs Sajjan
Singh, and National Insurance Co. Ltd. Vs
Chamundeswari, an unproven site plan cannot
override eyewitness testimony (PW-1 and PW2), and the accident was solely due to the rash
and negligent driving of the truck driver. (Paras
3, 8, 12, 13, 14, 15, 16)

C. Future Prospects - Entitlement Granted
- The Tribunal did not award future
prospects - Held, as per National Insurance
Co. Ltd. Vs Pranay Sethi, the appellants were
entitled to a 40% increase in compensation for
future prospects based on the deceased's age.
(Paras 4, 17)

D. Deduction for Personal Expenses -
Modified - The Tribunal deducted 1/3rd of the
deceased's income for personal expenses -
Held, as per Sarla Verma Vs Delhi Transport
Corporation, with six dependents, only 1/4th
should be deducted, and the award was
modified accordingly. (Paras 4, 18)

E. Multiplier Correction and Interest - The
Tribunal applied a multiplier of 16 - Held,
as per Sarla Verma, the correct multiplier was
15 based on the deceased's age, and the
enhanced compensation was to carry 6% simple
interest from the date of the claim petition until
payment. (Paras 6, 19, 20)

Appeal Partly Allowed.

List of Cases cited:

1. Jiju Kuruvila Vs Kunjujamma Mohan, (2013) 9
SCC 166

2. Kumari Kiran Vs Sajjan Singh, 2014 (4) TAC
684 (SC)

3.
National
Insurance
Co.
Ltd.
Vs
Chamundeswari, 2021 (0) SC 533

4. National Insurance Co. Ltd. Vs Pranay Sethi,
2017 (16) SCC 680

5. Sarla Verma Vs Delhi Transport Corporation,
2009 (6) SCC 121
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Oriental Insurance Co. Ltd. Vs Premlata
Shukla, 2007 AIR SCW 3591

7. Nishan Singh Vs Oriental Insurance Co. Ltd.
(cited in Chamundeswari, not fully referenced)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
appellants and learned counsel for the
respondents.

2. The claim petition has been
instituted by claimants/appellants praying
for compensation for the death of one
Shubhash Chandra Shukla who was driving
a Maruti Car No.MH 002L/3533 and met
with an accident with Tata 207 DI truck
No.UP70 Y/9264.

3. Challenging the award, learned
counsel for the appellants has contended
that the Tribunal has erred in law in holding
50% negligence of the deceased in the
accident.
It
is
submitted
that
the
claimants/appellants proved the accident by
producing PW-1 Shushma Devi and PW-2
Sri Ram Ji Shukla who were eyewitnesses
of the accident and deposed before the
Tribunal that the accident was the result of
the rash and negligent driving of the driver
of truck No. UP70 Y/9264, therefore, the
Tribunal has erred in law in holding the
negligence of the deceased on the basis of
the site plan of the accident which was not
proved in accordance with the law. It is
further contended that in the absence of any
evidence in rebuttal to the testimony of
PW-1 and PW-2, the Tribunal has erred in
law in placing reliance upon the site plan of
the accident to conclude 50% negligence of
the deceased in the accident. In support of
the said contention, learned counsel for the
appellants has placed reliance upon the
judgment of the Apex Court in the cases of
Jiju Kuruvila and Ors. Vs. Kunjujamma
Mohan and Ors., (2013) 9 SCC 166,
Kumari
Kiran
through
her
father
Harinarayan Vs. Sajjan Singh and others,
2014 (4) TAC 684 (SC) and National
Insurance
Company
Ltd.
Vs.
Chamundeswari and Ors, 2021 (0) SC
533.

4. He further contends that no amount
towards future prospect has been awarded
to the claimants/appellants whereas they
are entitled to 40% towards future prospect
in view of the judgment of Apex Court in
the case of National Insurance Company
Limited Vs. Pranay Sethi and Others 2017
(16) SCC 680. It is further submitted that
there were six dependents upon the
deceased,
therefore,
considering
the
judgment of the Apex Court in the case of
Sarla Verma and others Vs. Delhi
Transport Corporation and others 2009
(6) SCC 121, Tribunal should have
deducted 1/4th towards personal expenses
of the deceased instead of 1/3rd.

5. Per contra, learned counsel for the
respondent
insurance
company
would
contend that in the instant case, the site
plan was filed by the claimants/appellants,
and once they relied upon the site plan to
prove the accident, they cannot resile and
say that the site plan could not be read in
evidence to determine the negligence of the
deceased in the accident. It is further
submitted that the law is well settled that if
a party brings a document on record, then
that document has to be read in evidence as
a whole and the party who brings the
document on record, cannot take a plea that
a part of document which supports his case
can be read but the other part adverse to
him may be ignored. Accordingly, it is
submitted that the Tribunal has not
committed any illegality in relying upon
the site plan of the accident to conclude
1 All. Smt. Sushma Devi & Ors. Vs. Shadra Prasad Yadav & Anr.
1139
50% negligence of the deceased in the
accident. In support of his case, he has
placed reliance upon the judgment of
Apex Court in the case of Oriental
Insurance Company Ltd. Vs. Premlata
Shukla and Ors., 2007 AIR SCW 3591.

6. He has further contended that the
Tribunal has erred in law in applying the
multiplier of 16 whereas considering the
age of the deceased, the Tribunal should
have applied the multiplier of 15 to
compute the compensation.

7. I have heard learned counsel for
the parties and perused the record.

8. The deceased was driving the
Maruti Car No.MH 002L/3533 which met
with the accident with truck No.UP70
Y/9264. PW-1 Shushma Shukla and PW-2
Sri Ram Ji Shukla were eyewitnesses of
the accident and deposed before the
Tribunal that the accident had taken place
due to rash and negligent driving of the
driver of truck NoUP70 Y/9264. The
insurance company did not produce any
evidence in rebuttal to the testimony of
PW-1 & PW-2.

9. It is pertinent to note that the
accident was alleged to have taken place
on 22.06.2005 whereas the site plan was
prepared after 2 days from the date of the
accident i.e. on 24.06.2005. Though the
site plan did contain signature, the
identity of the person who prepared the
site plan had not been disclosed. The site
plan was not proved in accordance with the
law. The correctness of the site plan cannot
be determined in the absence of the
testimony of the person who prepared it. In
other words, the site plan cannot be relied
unless the person who prepared it appears
before the Tribunal and deposes that it was
correctly prepared, and thereafter an
opportunity is provided to the claimant to
rebut the testimony of the person who
prepared it to enable the claimant to prove
that the site plan is not prepared correctly.

10. The submission of learned counsel
for the respondent that once the site plan
had been filed by the appellants, they
cannot urge that the site plan proved the
accident, but it could not be relied upon to
adjudicate negligence of the deceased in
the accident on the strength of the judgment
of the Apex Court in the case of Premlata
Shukla (supra) does not stand to merit in
the instant case for the following reason.

11. There is no dispute to the
proposition that once a document has been
filed by a party and relied upon by it, the
said document has to be read as a whole for
the purpose of evidence, and the party who
produces the same cannot insist that only
that part of the document which benefits
him may be read and other part of the
document which is against him may be
ignored.

12. However, in the instant case, it is
not only the site plan which had been filed
by the appellants, but the appellants also
produced eyewitnesses of the accident PW1 & PW-2 who categorically deposed that
the accident was the result of the
negligence of the driver of the truck. The
appellants discharged their burden by
producing PW-1 & PW-2 to prove the
negligence of the driver of the truck in the
accident, and in such an event, the burden
was shifted upon the insurance company to
prove by leading the cogent evidence on
record that the deceased was also negligent
in the accident which the insurance
company in the instant case did not
discharge.
1140 INDIAN LAW REPORTS ALLAHABAD SERIES

13. At this stage, it would be apt to
refer to the judgments relied upon by
learned counsel for the appellants in the
case of Jiju Kuruvila (supra) in which it
has been held that the site plan does not
give substantial proof in respect of the rash
and negligent driving of the drivers
involved in the vehicle. Paragraph No.24 of
the judgment is reproduced below:

"24. The mere position of the
vehicles after accident, as shown in a Scene
Mahazar, cannot give a substantial proof as
to the rash and negligent driving on the
part of one or the other. When two vehicles
coming from opposite directions collide, the
position of the vehicles and its direction
etc. depends on number of factors like
speed of vehicles, intensity of collision,
reason for collision, place at which one
vehicle hit the other, etc. From the scene of
the accident, one may suggest or presume
the manner in which the accident caused,
but
in
absence
of
any
direct
or
corroborative evidence, no conclusion can
be drawn as to whether there was
negligence on the part of the driver. In
absence of such direct or corroborative
evidence, the Court cannot give any
specific finding about negligence on the
part of any individual."

14. In the case of Kumari Kiran
(supra), the Apex Court found that there
was no evidence on record in respect of the
negligence of the deceased in the accident,
consequently, it set aside the judgment of
the High Court. Paragraph No.13 of the
judgment is reproduced below:

"13.
With
regard
to
the
apportionment of contributory negligence
at 25% on the part of the appellant-father
and 75% on the driver of the offending
tractor as determined by the High Court,
we refer to the judgment of this Court in
Juju Kuruvila and Ors. v. Kunjujamma
Mohan and Ors., (2013)9 S.C.C. 166: 2013
(3) T.A.C. 369, as it is applicable to facts of
the case on hand. In the above case, Joy
Kuruvila (the deceased) had a head-on
collision with a bus approaching from the
opposite side. Joy Kuruvila sustained
serious injuries and died on the way to the
hospital. The Tribunal found that the
accident occurred due to the rash and
negligent driving of the bus driver. It
apportioned the contributory negligence
between the driver and the deceased in the
ratio of 75:25%. On the basis of the
pleadings and evidence on record, in the
above said case, this Court has held thus
on the negligence of the driver of the bus:-

The mere position of the vehicles
after accident, as shown in a scene
mahazar, cannot give a substantial proof as
to the rash and negligent driving on the
part of one or the other. When two vehicles
coming from opposite directions collide, the
position of the vehicles and its direction,
etc. depends on a number of factors like the
speed of vehicles, intensity of collision,
reason for collision, place at which one
vehicle hit the other, etc. From the scene of
the accident, one may suggest or presume
the manner in which the accident was
caused, but in the absence of any direct or
corroborative evidence, no conclusion can
be drawn as to whether there was
negligence on the part of the driver. In
absence of such direct or corroborative
evidence, the Court cannot give any
specific finding about negligence on the
part of any individual.

The post mortem report, Ext. A-5
shows the condition of the deceased at the
time of death. The said report reflects that
the deceased had already taken meal and
1 All. Smt. Sushma Devi & Ors. Vs. Shadra Prasad Yadav & Anr.
1141
his stomach was half-full and contained
rice, vegetables and meat pieces in a fluid
with strong smell of spirit.

The aforesaid evidence, Ext.A-5
clearly suggests that the deceased had
taken liquor but on the basis of the same,
no definite finding can be given that the
deceased was driving the car rashly and
negligently at the time of the accident. The
mere suspicion based on Ext. B-2 "scene
mahazar" and Ext. A-5 post-mortem report
cannot
take
the
place
of
evidence,
particularly, when the direct evidence like
PW3 (independent eye-witness), Ext. B-1
(FI statement) are on record."

The observations made by this
Court in the case of Juju Kuruvila (supra)
surely apply to the fact situation on hand.
Upon thorough examination of the facts
and legal evidence on record in the present
case, it cannot be said that the appellantfather was rash and negligent just on the
assumption made by the Tribunal that the
collision occurred in the middle of the road
since the two vehicles were approaching
from opposite directions of the road.
However, the only aspect of the case on
hand that we can reasonably assume is that
the appellant-father would have taken
sufficient
caution
while
riding
the
motorcycle since he was travelling with his
two minor children (appellant-minors).
Further, upon examining the evidence
produced on record, there is no proof
showing negligence on the part of the
appellant-father. Thus in our view, the
contributory negligence apportioned by the
High Court at 25% on the appellant-father
and 75% on the driver of the offending
tractor is erroneous keeping in view the
legal principles laid down by this Court on
this aspect in the above referred case. Thus,
we are of the firm conclusion that the
negligence is wholly on the part of the
driver of the offending tractor since he was
driving the heavier vehicle. Therefore, we
set aside the 25% contributory negligence
on the part of the appellant-father as
apportioned by the High Court."

15. The Apex Court in the case of
Chamundeswari (supra) also considered
the case of Premlata Shukla (supra) relied
upon by learned counsel for the respondent
and held that if any evidence contrary to
the contents of the First Information Report
has been filed or produced before the
tribunal, the evidence which is recorded
before the Tribunal has to be given
weightage
and
precedence
over
the
contents of First Information Report.
Paragraph No.8 of the judgment is
reproduced below:

"8. It is clear from the evidence
on record of PW-1 as well as PW-3 that the
Eicher van which was going in front of the
car, has taken a sudden right turn without
giving any signal or indicator. The evidence
of PW-1 & PW-3 is categorical and in
absence of any rebuttal evidence by
examining the driver of Eicher van, the
High Court has rightly held that the
accident
occurred
only
due
to
the
negligence of the driver of Eicher van. It is
to be noted that PW-1 herself travelled in
the very car and PW-3, who has given
statement before the police, was examined
as eye-witness. In view of such evidence on
record, there is no reason to give weightage
to the contents of the First Information
Report. If any evidence before the Tribunal
runs contrary to the contents in the First
Information Report, the evidence which is
recorded before the Tribunal has to be
given weightage over the contents of the
First Information Report. In the judgment,
relied on by the appellant's counsel in the
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
case of Oriental Insurance Company
Limited v. Premlata Shukla and Others,
(supra), this Court has held that proof of
rashness and negligence on the part of the
driver of the vehicle, is therefore, sine qua
non for maintaining an application under
Section 166 of the Act. In the said
judgment, it is held that the factum of an
accident could also be proved from the
First Information Report. In the judgment
in the case of Nishan Singh and Others v.
Oriental Insurance Company Limited,
(supra), this Court has held, on facts, that
the car of the appellant therein, which
crashed into truck which was proceeding in
front of the same, was driven negligently by
not maintaining sufficient distance as
contemplated under Road Regulations,
framed under Motor Vehicles Act, 1988.
Whether driver of the vehicle was negligent
or not, there cannot be any straitjacket
formula. Each case is judged having regard
to facts of the case and evidence on record.
Having regard to evidence in the present
case on hand, we are of the view that both
the judgments relied on by the learned
counsel for the appellant, would not render
any assistance in support of his case."

16. Given the law enunciated by the
Apex Court in the judgments relied upon
by learned counsel for the appellants, this
Court finds substance in the submission of
learned counsel for the appellants that the
Tribunal has erred in law in relying upon
the site plan of the accident to conclude
that there was negligence of the deceased in
the accident. Accordingly, the finding of the
Tribunal holding 50% negligence of the
deceased in the accident and reducing the
compensation by 50% for the negligence of
the deceased is set aside. Consequently, it is
held that the accident was the result of rash
and negligent driving of the driver of the
truck No.UP70 Y/9264.

17. The submission of learned counsel
for the claimants/appellants in respect of
future prospect has got force in view of the
judgment of Apex Court in the case of
Pranay Sethi (supra) and thus, following
the aforesaid judgement of Apex Court and
considering the age of the deceased,
claimants/appellants are entitled to 40%
towards future prospect.

18. The submission of learned counsel
for the claimants/appellants with regard to
the deduction of 1/4th towards personal
expenses of the deceased because of the
judgement of Apex Court in the case of
Sarla Verma (supra) has substance. Thus,
considering the dependents upon the
deceased, it is provided that 1/4th should be
deducted towards the personal expenses of
the deceased instead of 1/3rd from the
income of the deceased for computation of
compensation.

19. The submission of learned counsel
for the respondents in respect of the wrong
application of multiplier has also got
substance in view of the judgment of Apex
Court in the case of Sarla Verma (supra).
Thus, it is provided that compensation
should be computed by applying the
multiplier of 15 instead of 16.

20. It is also provided that the
enhanced amount of compensation shall
carry 6% simple interest from the date of
institution of the claim petition till the date
of its payment.

21. For the reasons given above, the
appeal is partly allowed and the award of
the Tribunal is modified to the extent
indicated above. The insurance company is
directed to pay the enhanced amount of
compensation to the claimants/appellants
within three months from the date of
1 All. Bhure Khan Warsi Vs. Mohd. Israr
1143
production of the certified copy of this
order. There shall be no order as to cost.
----------
(2024) 1 ILRA 1143
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE SIDDHARTH , J.

S.C.C. Revision no. 55 of 2023

Bhure Khan Warsi ...Revisionist
Versus
Mohd. Israr ...Respondent

Counsel for the Revisionist:
Sri Iqbal Ahmad

Counsel for the Respondent:
Sri Ashish Agarwal

Civil Law - Civil Procedure Code,1908
(U.P. Amendment) - Order XV Rule 5 -
Landlord-Tenant Relationship Dispute - The
revisionist challenged the Trial Court's order
striking off his defence under Order XV Rule 5
Civil Procedure Code,1908 for non-deposit of
rent, denying the landlord-tenant relationship -
Held, the court must first determine the
existence of a landlord-tenant relationship if
disputed, as the obligation to deposit rent under
Order XV Rule 5 applies only to admitted rent or
when the relationship is established, following
*Kunwar Baldevji Vs XI A.J., Bulandshahr*.
(Paras 7, 11, 23, 30, 31)

Revisional Jurisdiction - Scope and Limits
- The revisionist argued that the Trial Court
erred in striking off the defence without
adjudicating the landlord-tenant relationship -
Held, the court's revisional jurisdiction is limited
to
correcting
jurisdictional
errors
or
misinterpretations of law, and the Trial Court's
failure to address the disputed relationship
before applying Order XV Rule 5 warranted
scrutiny, as per *Asha Rani Gupta Vs Vineet
Kumar* and *Budhu Mal Vs Mahabir Prasad*.
(Paras 4, 19, 30, 31)
Denial of Landlord-Tenant Relationship -
Effect on Rent Deposit - The revisionist
denied being a tenant, claiming ownership
through an agreement to sell - Held, a bona
fide denial of the landlord-tenant relationship,
supported by evidence, requires adjudication
before enforcing rent deposits under Order XV
Rule 5; a mere denial simpliciter does not
absolve the defendant from depositing rent, but
substantial evidence of title dispute may lead to
plaint return under Section 23 of the Provincial
Small Cause Courts Act, 1887. (Paras 3, 12, 14,
19, 30, 31)

Civil Procedure Code,1908 - Order XV Rule 5
- Admitted Rent - The plaintiff argued that rent
must be deposited regardless of the denial of the
landlord-tenant relationship - Held, Order XV Rule
5 mandates deposit of "admitted rent" only; the
term "monthly amount due" refers to rent at the
admitted rate, and no deposit is required if the
relationship is genuinely disputed, contradicting
*Pradyuman Jee Vs Special/A.J., Ballia*. (Paras 9,
11, 17, 29, 30, 31)

Provincial Small Cause Courts Act, 1887 -
Section 23 - Title Disputes - The revisionist
claimed the property was purchased under an
agreement to sell, disputing the plaintiff's title -
Held, if a serious title dispute arises, the Small
Cause Court may return the plaint to a court
with jurisdiction to determine title, as per
*Budhu
Mal
Vs
Mahabir
Prasad*
and
*Rameshwar
Dayal
Vs
Banda*,
ensuring
adjudication of the dispute before applying
Order XV Rule 5. (Paras 12, 13, 14, 30, 31)

Reference Answered Interim Order to
Continue Until Revision Decided.

List of Cases cited:

1. Kunwar Baldevji Vs XI A.J., Bulandshahr,
(2003) 51 ALR 758

2. Asha Rani Gupta Vs Vineet Kumar, 2022 8
ADJ 572 (SC)

3. Budhu Mal Vs Mahabir Prasad, (1988) 4 SCC
194

4. Rameshwar Dayal Vs Banda, (1993) 1 SCC
531