# The New India Assurance Co. Ltd v. Chhedana & Ors

- **Citation:** (2024) 12 ILRA 144
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-13
- **Case number:** First Appeal From Order No. 258 of 2017
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-ltd-v-chhedana-ors-51164
- **Pages:** 10

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Sections 66, 149 & 150 - Indian Evidence
Act,1872 - Sections 17, 21, 58 - Against
payment of compensation - Appellant
submits that vehicle involved in accident
as alleged was DLIV-5126 but Insurance
Co.
insured
vehicle
No.DL1V-5126,
admitted by owner and he also pleaded
that his vehicle was in workshop for
repairing of steering on date of accident
and proved by appearing himself and
producing owner of workshop, discarded
on ground that in criminal case charge
sheet has been filed, whereas evidence of
12 All. The New India Assurance Co. Ltd. Vs. Chhedana & Ors.
145
criminal
case
could
not
have
been
considered to discard evidence adduced
before trial court without proof. (Para 2)

Claim petition was filed alleging that son
of claimant was coming back to his house
after closing his shop, driver of Bus driving
rashly and negligently hit her son, died on
spot
-
Accordingly,
compensation
of
Rs.12,00,000/- was claimed as he was
earning Rs.40,000/- annually - Claim
petition allowed. (Para 5, 7)

Once a fact was admitted by party, it need
not
be
proved
in
any
proceeding,
therefore, findings of tribunal that burden
to prove that vehicle was being plied on
date of incident without valid permit was
on
appellant-Insurance
Co.
was
misconceived and not tenable. (Para 21)

In absence of permit of vehicle on date
and time of accident, appellant cannot be
held
liable
to
make
payment
of
compensation - Impugned judgment liable
to be modified, compensation shall be
paid
by
appellant
to
claimant
and
Insurance Co. will have right to recover
same from owner and driver in accordance
with law. (Para 24)

Appeal partly allowed. (E-13)

List of Cases cited:

## Text

144 INDIAN LAW REPORTS ALLAHABAD SERIES
may be considered reasonable from time to
time on the same pattern as in accident
claim cases.

37. In view of above and considering
the over all facts and circumstances of the
case, this Court is of the view that the
contention of the learned counsel for the
appellant is misconceived and not tenable
and this Court is of the view that the
claimant-respondent is entitled for the
future prospects and interest thereon also.

38. So far as the enhancement of
interest awarded to the claimant-respondent
is concerned, a three judge bench of
Hon'ble Supreme Court, in the case Nutan
Rani and Another Vs. Gurmail Singh
and Others; (2018) 17 SCC 109, has
enhanced the interest from 6% to 9% and
the same is on the future prospects also.
Accordingly, this Court is of the view that
looking to the fall in the interest rate and
the period from which the interest is to be
awarded and the aforesaid judgment of
Hon'ble Supreme Court, the interest can be
enhanced from 6% to 9% per annum
instead of 12% as claimed and it is
accordingly enhanced to 9% per annum
w.e.f the date of application till the date of
actual payment. Accordingly the crossobjection is also liable to be partly allowed.

39. The appeal and the cross-objection
are, accordingly, partly allowed. Thus, the
total compensation payable to the claimantrespondent/ objector in terms of National
Insurance Company Limited Vs. Pranay
Sethi and Others(supra) is calculated as
under:-

Yearly Income after deduction of
income tax on the basis of proof
of pay slip of April, 2011 (A):
Rs.4,15,038/
Increase towards future prospects
(B): (50% of income)
Rs.2,07,519/-
A+B
Rs.6,22,557/-
Deductions
towards
personal
expenses (1/2): (C)
Rs.3,11,278.50
Multiplier applied:
16 (since age of
deceased was 33
years)
Loss of Dependency: (C X 16):
Rs.49,80,456/-
Loss of consortium:
Rs.40,000/-
Loss of estate:
Rs.10,000/-
Funeral expenses:
Rs.5000/-
Total Compensation:
Rs.50,35,456/-
Interest:
@ 9% per annum

40. The impugned judgment and
award
is,accordingly,modified
in
the
aforesaid terms. No order as to costs.
----------
(2024) 12 ILRA 144
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.12.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 258 of 2017

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Chhedana & Ors. ...Respondents

Counsel for the Appellant:
Anurodh Kumar Srivastava

Counsel for the Respondents:
Vinay Kumar Verma

Civil Law - Motor Vehicles Act, 1988 -
Sections 66, 149 & 150 - Indian Evidence
Act,1872 - Sections 17, 21, 58 - Against
payment of compensation - Appellant
submits that vehicle involved in accident
as alleged was DLIV-5126 but Insurance
Co.
insured
vehicle
No.DL1V-5126,
admitted by owner and he also pleaded
that his vehicle was in workshop for
repairing of steering on date of accident
and proved by appearing himself and
producing owner of workshop, discarded
on ground that in criminal case charge
sheet has been filed, whereas evidence of
12 All. The New India Assurance Co. Ltd. Vs. Chhedana & Ors.
145
criminal
case
could
not
have
been
considered to discard evidence adduced
before trial court without proof. (Para 2)

Claim petition was filed alleging that son
of claimant was coming back to his house
after closing his shop, driver of Bus driving
rashly and negligently hit her son, died on
spot
-
Accordingly,
compensation
of
Rs.12,00,000/- was claimed as he was
earning Rs.40,000/- annually - Claim
petition allowed. (Para 5, 7)

Once a fact was admitted by party, it need
not
be
proved
in
any
proceeding,
therefore, findings of tribunal that burden
to prove that vehicle was being plied on
date of incident without valid permit was
on
appellant-Insurance
Co.
was
misconceived and not tenable. (Para 21)

In absence of permit of vehicle on date
and time of accident, appellant cannot be
held
liable
to
make
payment
of
compensation - Impugned judgment liable
to be modified, compensation shall be
paid
by
appellant
to
claimant
and
Insurance Co. will have right to recover
same from owner and driver in accordance
with law. (Para 24)

Appeal partly allowed. (E-13)

List of Cases cited:

1. Chandresh Kumar Agarwal Vs Yogendra
Kumar Srivastrava & anr.; 2005 (2) TAC 6 (All.)

2. Amrit Paul Singh & anr. Vs Tata AIG General
Insurance Co. Ltd. & ors.; (2018) 7 SCC 558,
(Para 24)

3. National Insurance Co. Vs Challa Upendra
Rao passed in Civil Appeal No.6178 of 2004,
decided on 21st of September 2004, (2004) 8
SCC 517, (Para 11 to 13)

4. Avtar Singh & ors. Vs Gurdial Singh & ors.;
(2006) 12 SCC 552

5. Bharat Singh & ors. Vs MST.Bhagirathi; 1965
SCC Online SC 57 (AIR 1966 SC 405), (Para 19)
(Delivered by Hon'ble Rajnish Kumar, J.)

1.
Heard, Shri
Anurodh
Kumar
Srivastava,
learned
counsel
for
the
appellant and Shri Vinay Kumar Verma,
learned counsel for the claimant-respondent
no.1.
None
appeared
on
behalf
of
respondents no.2 and 3 despite sufficient
service and served personally.

2. Learned counsel for the appellantInsurance Company submits that the
vehicle involved in the accident as alleged
was
DLIV-5126
but
the
Insurance
Company
had
insured
the
vehicle
No.DL1V-5126 and it was admitted by the
owner, who appeared before the Tribunal.
He further submits that the owner had also
pleaded that his vehicle was in the
workshop on the date of accident i.e.
24.09.2013 and it was proved by appearing
himself and producing the owner of the
workshop Mohd.Haseeb, but the said
evidence has been discarded on the ground
that in the criminal case charge sheet has
been filed, whereas the evidence and
material of the criminal case could not have
been considered to discard the evidence
adduced before the trial court without
proof. He further submits that the vehicle
was not having the permit on the date of
accident i.e. 24.09.2013 as per copies of the
permit filed by him, but the learned tribunal
has
wrongly
and
illegally
held
the
appellant-Insurance Company liable for
payment of compensation awarded by it,
whereas absence of permit was violation of
the terms and conditions of the policy,
therefore,
the
appellant-Insurance
Company could not have been held liable
for payment of compensation. He relies on
Chandresh
Kumar
Agarwal
Versus
Yogendra
Kumar
Srivastrava
and
another; 2005 (2) TAC 6 (All.), Amrit
Paul Singh and another Versus Tata
146 INDIAN LAW REPORTS ALLAHABAD SERIES
AIG
General
Insurance
Company
Limited and others; (2018) 7 SCC 558
and
National
Insurance
Company
Versus Challa Upendra Rao passed in
Civil Appeal No.6178 of 2004 decided on
21st of September 2004; (2004) 8 SCC
517.

3. Per contra, learned counsel for the
claimant-respondent No.1 submits that the
Bus DLIV-5126 was involved in the
accident. It was specifically pleaded in the
claim petition and it has been admitted by
respondent no.2 i.e. Aftab Alam that he is
the owner of the said vehicle and he has
also given the Insurance policy number in
his written statement and in his evidence
also. He has not denied or doubted the said
vehicle. Even otherwise as per registration
number of the vehicle mentioned on the
policy, the vehicle number is DLIV-5126,
therefore, the contention of learned counsel
for the appellant is misconceived and not
tenable. He further submits that the learned
Tribunal, after considering the pleadings
and evidence of the owner in regard to plea
that the vehicle was in work shop on the
date of accident, has recorded a finding that
the owner has failed to prove that the
vehicle was standing in the workshop for
repairing of steering on the date and time of
accident. Thus the involvement of the
vehicle cannot be denied. He further
submits that though the learned tribunal
held that the vehicle had no permit was to
be proved by the appellant-Insurance
Company and it has failed to prove,
therefore, it is liable to make the payment
of compensation. However if this court
comes to the conclusion that the vehicle
was not having the valid permit on the date
of accident, which is not against the
claimant-respondent No.1 and only right of
recovery can be granted to the appellantInsurance Company and the compensation
awarded by the claims tribunal is liable to
be paid by the appellant- Insurance
Company, which has been deposited by
the appellant before the tribunal under the
order passed by this court and the same
may be released and paid to the appellant.
Thus the appeal has been filed on
misconceived and baseless grounds, which
is liable to be dismissed with costs.

4. I have considered the submissions
of learned counsel for the parties and
perused the records.

5. The claim petition was filed
alleging therein that son of the claimantrespondent no.1 Parideen, aged about 30
years son of Chhedi Lal, resident of
Village-Hamidnagar,
Police
StationSafdarganj, district-Barabanki was coming
back from Mahmoodabad to his house after
closing his shop of Shoe making on
24.09.2013,
when
at
Udhauli-SirauliGaushpur
Road
near
village
Mahmoodabad
and
clinic
of
Dr.Shambhoo, the driver of Bus No.DLIV5126, driving rashly and negligently hit her
son, in which he died on the spot.
Accordingly
a
compensation
of
Rs.12,00,000/- was claimed as he was
earning Rs.40,000/- annually.

6. The claim petition was contested by
the owner and driver i.e. respondents no.2
and 3 in the present appeal, who were
respondents no. no.1 and 2 in the claim
petition, by filing a written statement
denying most of the averments. However it
has been admitted that the respondent no.2
was the owner and respondent no.3 the
driver of the bus. The negligence of the
driver was denied. It was further pleaded
that the Bus No.DLIV-5126 was standing
in the workshop of Shri Haseeb Mistri at
Barabanki for repairing of steering on the
12 All. The New India Assurance Co. Ltd. Vs. Chhedana & Ors.
147
date of accident and the vehicle number
given in the First Information Report is also
some other and since it could not be traced,
the respondent no.2 and his vehicle has
been implanted in collusion with the
police. The appellant-Insurance Company
had also filed written statement denying the
averments made in the claim petition and
reserving
right
for
filing
a
written
statement, if some material is placed on
record by the other side.

7. After exchange of pleadings five
issues
were
framed.
Thereafter
the
evidence was adduced by the parties. After
considering the pleadings, evidence and
material on record, the Tribunal allowed
the claim petition. The learned Tribunal,
while considering the issue no.1 considered
the evidence of respondent no.2, who had
appeared as D.W.-1 and also evidence of
Mohd.Haseeb, who appeared as D.W.-2 to
prove that the vehicle was in the workshop
on the date of accident.

8. Perusal of record indicates that the
vehicle No.DLIV-5126 has been given in
the claim petition in clause 15, 17 and in
paragraph 23. In the written statement filed
by the respondents no.1 and 2 i.e. the
owner and driver of offending vehicle,
who are respondents no.2 and 3 in this
appeal, the paragraph no.15 alongwith 16
has been denied stating based on wrong
facts. Paragraph 17 has not been denied
and in reply thereof it has been stated that
the Insurer of the bus number given in
paragraph is correct and the policy number
has also been given. In reply to paragraph
23, it has been stated that the same is not
admitted in the manner stated and the
subsequent special statements may be
seen. It has further been stated by the
owner of the bus that the bus number
DLIV-5126 of the answering respondent
was in the workshop of Shri Haseeb for
repairing of steering. Thus the vehicle
number has been admitted by the owner.
However he pleaded that it was in
workshop on the date of accident. The
insurance company has also not specifically
denied
the
number
in
it's
written
statement. However it has been stated that
the policy number of bus No.DLIV-5126
has not been given and the details of the
owner of the bus have also not been given,
therefore it is denied at this stage and in
case the details of the policy would be
informed, the detailed written statement
may be filed by the appellant. Thereafter
no written statement was filed, rather the
Insurance policy was placed on record by
the appellant-Insurance Company itself
alongwith
the
application
dated
10.11.2016. The insurance policy indicates
the registration number DLIV-5126 of the
vehicle.

9. The vehicle number mentioned on
the insurance policy indicates that one(1) is
coming in 5126 and the number 1(one)
shown in it is not before V and it is I, thus
the number of vehicle shown in the policy
issued by the appellant-Insurance company
is DL-IV-5126, therefore, contention of
learned for the appellant that the vehicle
number has been denied by the owner and
the vehicle is not insured by the appellantInsurance
Company
is
wrong
and
misconceived and not tenable. Even
otherwise the same has been proved by the
claimant-respondent by adducing evidence
and the owner has also not denied the same
in his evidence, while he appeared as
D.W.-1. So far as the mention of number of
vehicle in the First Information Report is
concerned, since the same has been written
by some other person and in Hindi, it may
have inadvertently been written as B in
148 INDIAN LAW REPORTS ALLAHABAD SERIES
place of 'V' and it does not give any benefit
to the appellant.

10. The other plea taken by the owner
is that the vehicle was in the workshop on
the date and time of accident, therefore, it
could not have been involved in the
accident. The D.W.-1 i.e. the owner has
admitted in his evidence that he had not
given the documents of repairs during
investigation. He has also stated that he has
also not produced the same at the time of
bail of the Driver- Ram Naresh i.e. the
respondent no.3 and release of the vehicle
and the same were produced on the date of
evidence itself, therefore the evidence of
the owner is not reliable that the vehicle
was in the workshop on the date of
accident. Thereafter learned Tribunal also
considered that in regard to the accident in
question the charge sheet has been filed
against the driver of the vehicle. This court
does not find any illegality or error in the
findings recorded by the tribunal because if
the vehicle would have been in the
workshop on the date and time of accident
and aforesaid documents with the owner,
he would have certainly intimated about it
during investigation and placed before the
court in bail and release application for
taking benefit of it and it could have been
the best material in the said proceeding and
in favour of the owner and driver. Merely
because the learned tribunal after arriving
at conclusion on the basis of evidence
before tribunal, considered filing of chargesheet in the matter against the driver, the
order can not be said to be vitiated because
it could have been considered to strengthen
the findings and conclusions recorded by
the tribunal.

11. Mr.Haseeb, the D.W.-2 has also
stated in his evidence that he had only
signed the bill and the list of materials
required for repairing, which was given on
the letter head of the workshop and he had
not prepared the bill and list and failed to
indicate as to who had prepared them.
Perusal of the documents relating to repairs
produced by the owner indicates that
quotation has been given on 23.09.2013 for
8 items, but only three items have been
purchased on 24.09.2013, whereas the
labour charges have been taken for six
works. Thus all the required items have not
been purchased. This also indicates that
the contention of the owner is not correct
that the vehicle was in the workshop on the
date of accident for repairing of steering
and the evidence of the workshop owner is
also not reliable for the reason that he could
not state the complete and correct facts.
Thus the plea of non involvement of
vehicle in the accident in question is not
tenable and accordingly rejected. The
learned
tribunal
has
rightly
and
in
accordance with law after considering the
pleadings, evidence and material on record
has held that the accident had occurred on
account of rash and negligent driving of
bus No.DLIV-5126 by it's driver.

12. The plea of permit has been
considered by the learned Tribunal in issue
no.4 and held that the burden to prove the
validity of permit rests upon the Insurance
Company and it could not prove the same,
therefore, it is not proved that the vehicle
was plying without valid permit on the day
and time of accident, whereas the permit on
the date of accident i.e. 24.09.2013 was not
placed on record and the owner of the
vehicle Aftab Alam, who appeared as
D.W.-1 categorically admitted in his cross
examination that it is correct to say that
there was no permit on the date of accident
and also stated that it is wrong to say that
since there was no permit of vehicle at the
time of accident, therefore, he himself has
12 All. The New India Assurance Co. Ltd. Vs. Chhedana & Ors.
149
got prepared the papers of repairs. Thus it
has been admitted that the vehicle had no
permit on the date and time of accident and
in this way he also appears to have
admitted the accident.

13. The limitations as to use of vehicle
on the policy schedule- cum-Certificate of
Insurance of Vehicle No.DLIV-5126 as
paper No.Ga71/1 and Ga71/2 provides that
the policy covers use only under a permit
within the meaning of the Motor Vehicles Act,
1988 or such a carriage falling under subsection (3) of Section 66 of the Motor Vehicles
Act, 1988 and the policy does not cover use for:
a) Organized racing b) Speed testing. It is also
mentioned at the bottom of the policy on the
second page under the heading important notice
that the insured is not indemnified, if the vehicle
is used or driven otherwise than in accordance
with this schedule and any payment made by
the company by reason of wider terms
appearing in the certificate in order to comply
with the Motor Vehicles Act, 1988 is
recoverable from the insured. Thus as per terms
and conditions of the policy valid permit was
required on the date and time of accident,
failing which the insurer is not liable to
indemnify.

14. The grounds on which the
Insurance Company can deny the claims
have been enumerated under un-amended
Section 149 and the amended Section 150
of the Motor Vehicle Act, 1988. One of the
grounds is the breach of specified condition
of the policy, therefore, in case of breach of
specified terms and conditions of policy, it
can be set up as a defence by the Insurance
Company and if proved, the Insurance
Company cannot be held liable for payment
of compensation awarded.

15. The Hon'ble Supreme court, in the
case of National Insurance Co. Ltd. v.
Challa Upendra Rao (Supra), has held
that a person without permit to ply a
vehicle cannot be placed on a better
pedestal vis-a-vis one who has a permit, but
has violated any condition thereof and
plying of a vehicle without a permit is an
infraction. Therefore, in terms of Section
149 (2) defence is available to the insurer
on that aspect. The acceptability of the
stand is a matter of adjudication and the
question of policy being operative had no
relevance for the issue regarding liability of
insurer and granted right of recovery to the
Insurance Company. Relevant paragraphs
11 to 13 are extracted here-in-below:-

"11. As was observed in the said
case the statutory defences which are
available to the insurer to contest the claim
are confined to those provided in subsection (2) of Section 149.

12. The High Court was of the
view that since there was no permit, the
question of violation of any condition
thereof does not arise. The view is clearly
fallacious. A person without permit to ply a
vehicle cannot be placed on a better
pedestal vis-à-vis one who has a permit, but
has violated any condition thereof. Plying
of a vehicle without a permit is an
infraction. Therefore, in terms of Section
149(2) defence is available to the insurer on
that aspect. The acceptability of the stand is
a matter of adjudication. The question of
policy being operative had no relevance for
the issue regarding liability of the insurer.
The High Court was, therefore, not justified
in holding the insurer liable.

13. The residual question is what
would
be
the
appropriate
direction.
Considering the beneficial object of the
Act, it would be proper for the insurer to
satisfy the award, though in law it has no
liability. In some cases the insurer has been
given the option and liberty to recover the
150 INDIAN LAW REPORTS ALLAHABAD SERIES
amount from the insured. For the purpose
of recovering the amount paid from the
owner, the insurer shall not be required to
file a suit. It may initiate a proceeding
before the executing court concerned as if
the dispute between the insurer and the
owner
was
the
subject-matter
of
determination before the Tribunal and the
issue is decided against the owner and in
favour of the insurer. Before release of the
amount to the claimants, owner of the
offending vehicle shall furnish security for
the entire amount which the insurer will
pay to the claimants. The offending vehicle
shall be attached, as a part of the security.
If necessity arises the executing court shall
take assistance of the Regional Transport
Authority concerned. The executing court
shall pass appropriate orders in accordance
with law as to the manner in which the
owner of the vehicle shall make payment to
the insurer. In case there is any default it
shall be open to the executing court to
direct realisation by disposal of the
securities to be furnished or from any other
property or properties of the owner of the
vehicle i.e. the insured. In the instant case,
considering the quantum involved, we
leave it to the discretion of the insurer to
decide whether it would take steps for
recovery of the amount from the insured."

The aforesaid judgment has been
relieved by this court in the case of
Chandresh
Kumar
Agarwal
Versus
Yogendra
Kumar
Srivastava
and
another (Supra).

16. The Hon'ble Supreme Court, in the
case of Amrit Paul Singh and another
Versus TATA AIG General Insurance
Company Limited and others (Supra),
considered the issue in detail and after
considering the unamended provisions of
Section 149 (2) of the Motor Vehicles Act
1988 held that since the vehicle was not
having the permit at the time of accident
and the exceptions that have been carved
out under Section 66 of the Act have not
been pleaded and proved, therefore the use
of vehicle in a public place without permit
is a fundamental statutory infraction,
therefore the principles laid down in
National Insurance Co.Ltd. Versus Swarn
Singh; (2004) 3 SCC 297 and Lakhmi
Chand Versus Reliance General Insurance;
(2016) 3 SCC 100 shall not be applicable
and in such a situation, the onus cannot be
cast on the insurer, therefore the insurer
was required to pay the compensation to
the claimant with the stipulation that the
insurer shall be entitled to recover the same
from the owner and the driver. The said
directions are in consonance with the
principles stated in Swarn Singh and other
cases pertaining to pay and recover
principal. The relevant paragraph 24 is
extracted here-in-below:-

"24. In the case at hand, it is
clearly demonstrable from the materials
brought on record that the vehicle at the
time of the accident did not have a permit.
The appellants had taken the stand that the
vehicle was not involved in the accident.
That apart, they had not stated whether the
vehicle had temporary permit or any other
kind of permit. The exceptions that have
been carved out under Section 66 of the
Act, needless to emphasise, are to be
pleaded and proved. The exceptions cannot
be taken aid of in the course of an argument
to seek absolution from liability. Use of a
vehicle in a public place without a permit is
a fundamental statutory infraction. We are
disposed to think so in view of the series of
exceptions carved out in Section 66. The
said situations cannot be equated with
absence of licence or a fake licence or a
licence for different kind of vehicle, or, for
that matter, violation of a condition of
12 All. The New India Assurance Co. Ltd. Vs. Chhedana & Ors.
151
carrying more number of passengers.
Therefore,
the
principles
laid
down
in Swaran Singh [National Insurance Co.
Ltd. v. Swaran Singh, (2004) 3 SCC 297 :
2004
SCC
(Cri)
733]
and Lakhmi
Chand [Lakhmi Chand v. Reliance General
Insurance, (2016) 3 SCC 100 : (2016) 2
SCC (Civ) 45] in that regard would not be
applicable to the case at hand. That apart,
the insurer had taken the plea that the
vehicle in question had no permit. It does
not require the wisdom of the "Tripitaka",
that the existence of a permit of any nature
is a matter of documentary evidence.
Nothing has been brought on record by the
insured to prove that he had a permit of the
vehicle. In such a situation, the onus cannot
be cast on the insurer. Therefore, the
Tribunal as well as the High Court had
directed that the insurer was required to pay
the compensation amount to the claimants
with interest with the stipulation that the
insurer shall be entitled to recover the same
from the owner and the driver. The said
directions are in consonance with the
principles stated in Swaran Singh [National
Insurance Co. Ltd. v. Swaran Singh, (2004)
3 SCC 297 : 2004 SCC (Cri) 733] and other
cases pertaining to pay and recover
principle."

17. Adverting to the facts of the
present case the respondent no.2 i.e. the
owner of the offending vehicle has
admitted in his evidence that it is correct to
say that there was no permit on the date of
accident. Thus in view of any contrary and
cogent evidence no other inference could
have been drawn, except that the vehicle
was being plied without any permit on the
date and time of the accident.

18. It is settled law that the admission
is substantive and best evidence and no
other evidence is required, therefore, since
there was clear admission by the owner of
the vehicle in this case that the vehicle had
no permit on the date and time of accident,
no other evidence was required to be
adduced by the Insurance Company in this
regard. Even otherwise it was the burden
of the owner first to prove that the vehicle
was being plied in accordance with the
terms and conditions of the insurance
policy and with valid permit and it has been
admitted by the owner that there was no
permit on the date of accident.

19. Section 17 of the Indian Evidence
Act,1872 (here-in-after referred as Indian
Evidence Act) defines the 'admission',
which is extracted here-in-below:-

"17.
Admission
defined.-An
admission
is
a
statement,1[oral
or
documentary or contained in electronic
form ], which suggests any inference as to
any fact in issue or relevant fact, and which
is made by any of the persons, and under
the circumstances, hereinafter mentioned."

20. Section 21 of the Indian Evidence
Act provides that the admissions are
relevant and may be proved as against the
person
who
makes
them,
or
his
representative in interest. Section 58 of the
Indian Evidence Act provides that the facts
admitted need not be proved, which is
extracted here-in-below:-

"58.Facts admitted need not be
proved.-No fact need to be proved in any
proceeding which the parties thereto or
their agents agree to admit at the hearing,
or which, before the hearing, they agree to
admit by any writing under their hands, or
which by any rule of pleading in force at
the time they are deemed to have admitted
by their pleadings: Provided that the court
may, in its discretion, require the facts
152 INDIAN LAW REPORTS ALLAHABAD SERIES
admitted to be proved otherwise than by
such admission."

21. In view of above, once a fact is
admitted by a party it need not be proved in
any proceeding, therefore, the findings of
the tribunal that burden to prove that the
vehicle was being plied without valid
permit was on the appellant-Insurance
Company is misconceived and not tenable.

22. The Hon'ble Supreme Court, in
the case of Avtar Singh and others
Versus Gurdial Singh and others; (2006)
12 SCC 552, has held that admission forms
the best evidence and Section 58 of the
Evidence
Act
postulates
that
things
admitted need not be proved.

23. A three Judges Bench of the
Hon'ble Supreme court, in the case of
Bharat
Singh
and
others
Versus
MST.Bhagirathi; 1965 SCC Online SC
57( AIR 1966 SC 405), has held that
admissions have to be clear if they are to be
used against the person making them and
the admissions are substantive evidence by
themselves, in view of Section 17 and 21 of
the Indian Evidence Act. The relevant
paragraph 19 is extracted here-in-below:-

"19. Admissions have to be clear
if they are to be used against the person
making them. Admissions are substantive
evidence by themselves, in view of
Sections 17, and 21 of the Indian Evidence
Act, though they are not conclusive proof
of the matters admitted. We are of opinion
that the admissions duly proved are
admissible evidence irrespective of whether
the party making them appeared in the
witness box or not and whether that party
when appearing as witness was confronted
with those statements in case it made a
statement contrary to those admissions. The
purpose of contradicting the witness under
Section 145 of the Evidence Act is very
much different from the purpose of proving
the admission. Admission is substantive
evidence of the fact admitted while a
previous statement used to contradict a
witness does not become substantive
evidence and merely serves the purpose of
throwing doubt on the veracity of the
witness. What weight is to be attached to an
admission made by a party is a matter
different from its use as admissible
evidence."

24. In view of above, this court is of
the view that in absence of permit of the
vehicle on the date and time of the
accident, the appellant-Insurance Company
cannot be held liable to make the payment
of the compensation and accordingly the
impugned judgment and award 16.11.2016
passed
in
M.A.C.P.No.460
of
2013;
Chhedana Versus Aftab Alam and others
by
the
Motor
Accident
Claims
Tribunal/District Judge, Barabanki is liable
to be modified to the extent that the
compensation
shall
be
paid
by
the
appellant-Insurance
Company
to
the
claimant-respondent no.1 and the Insurance
Company will have right to recover the
same from the owner and driver in
accordance with law.

25. The First Appeal From Order is
partly allowed. The impugned judgment
and award is modified only to the extent
that the compensation shall be paid by the
appellant-Insurance
Company
to
the
claimant-respondent no.1 and the Insurance
Company will have right to recover the
same from the owner and driver in
accordance with law and rest of the
impugned judgment and award shall remain
intact.
No
order
as
to
costs.
12 All. State of U.P. Vs. Sajid S/O Ibnehasan
153

26. The lower court record and the
statutory deposit and any other deposit
made before this court under any order in
this appeal shall be remitted to the
concerned tribunal forthwith and in any
case within a period of four weeks from
today for adjustment in the compensation
to be paid to the claimant-respondent no.1
under the impugned award.
----------
(2024) 12 ILRA 153
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Government Appeal No. 728 of 2024
With
Criminal Appeal U/S 372 CR.P.C. No. 1070 of
2022

State of U.P. ...Appellant
Versus
Sajid S/O Ibnehasan ...Respondent

Counsel for the Appellant:
Shiv Kumar Pal

Counsel for the Respondent:
Subhash

Criminal Law - Indian Penal Code,1860 -
Section
364,
376(3),
302
&
201
-
The Protection of Children from Sexual
Offences Act,2012 - Section 5/6 Appeal
against acquittal - Case under I.P.C. and
of the - Power of appellate court -
Limited interference - Presumption of
innocence
-
"Last
seen"
theory
-
Circumstantial evidence - Acquittal not
liable to be reversed unless judgment
perverse or based on legally erroneous
reasoning
-
No
conclusive
forensic
evidence identifying skeletal remains as
that of deceased victim - Time gap
between last seen and recovery of body
held too wide - Prosecution failed to
complete the chain of circumstances - No
interference
warranted-trial
court
judgement
upheld-appeal
dismissed.
(Paras 14, 18, 24, 31 to 36)
HELD:
Broadly speaking until and unless the judgment
under challenge is perverse and there are
substantial and compelling reasons followed
miscarriage of justice to be meted by the
parties, this Court should not in routine manner
interfere with the judgment of acquittal as the
accused is possessed with double presumption
of innocence. (Para 14)

Applying the principles of law as laid down in
the above noted decisions in the facts of the
case an irresistible conclusion stands drawn that
there is a huge time gap between the alleged
accused lastly seen with the deceased victim
and the recovery of the body (skeleton) which
creates a doubt regarding involvement of the
accused Sajid in the commission of crime. (Para
31)

Now
another
crucial
question
arises
for
consideration whether the skeleton which is
being shown to have been recovered on
15.07.2018 was of the deceased victim or not.
Admittedly as per the panchnama and the post
mortem report only skeleton was found and
there was no flesh. The deceased went missing
from 22.05.2018 as per the prosecution story
and the recovery of the body of the deceased
dated 15.07.2018. The identification is St.d to
have been made by P.W. 1, Sher Ali and his wife
with the aid and assistance of clothes, slipper
and hair (ponytail). The skeleton was also sent
for DNA test, however, there is nothing on
record that there is any conclusive report that
the skeleton was of the deceased victim. (Para
31)

Interestingly, P.W. 1 and P.W. 5 Inspector Amar
Pal Singh, first Investigating Officer who claims
to have recovered the skeleton on cross
examination by the defence could not point out
the time when he along with his team had gone
from the police station and further does not
remember whether the same stands mentioned
in the GD report. One further question being
raised to him, he showed his inability to apprise