# The New India Assurance Co. Ltd v. Smt. Madhu & Ors

- **Citation:** (2024) 1 ILRA 477
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-30
- **Case number:** First Appeal from Order No. 3597 of 2008
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-ltd-v-smt-madhu-ors-50927
- **Pages:** 14

## Headnote

A. First Appeal From Order - Insurer's
Appeal
Dismissed,
Compensation
Enhanced - The New India Assurance Co. Ltd.
challenged the Motor Accident Claims Tribunal's
award dated 19.08.2008 granting Rs.4,85,000/-
with 7% interest - Held, the appeal was
dismissed as the Tribunal's findings on the
truck's involvement and driver's negligence were
upheld, but the compensation was enhanced to
Rs.10,68,000/- considering oral cross-objections
by the claimants. (Paras 1, 43, 44)

B. Negligence and Vehicle Involvement -
Tribunal's Findings Upheld - The Tribunal
found that Truck No. MP-09KA-4228 caused the
accident due to rash and negligent driving,
based on eyewitness testimony (PW-2) - Held,
as per Sunita Vs Rajasthan St. Road Transport
Corporation, a dependable eyewitness account
suffices in motor accident claims, and the
insurer's unproven documentary evidence (e.g.,
photocopied receipts) failed to disprove the
478 INDIAN LAW REPORTS ALLAHABAD SERIES
truck's involvement. (Paras 19, 22, 24, 27, 28,
31)

C. Standard of Proof in Motor Accident
Claims - Preponderance of Probability -
The insurer argued the truck was in Indore, not
Kanpur, and criticized the eyewitness's credibility
- Held, motor accident claims require a
preponderance of probability, not proof beyond
reasonable doubt, and the Tribunal's inquisitorial
role supports accepting PW-2's consistent
testimony over unproven police reports or
insurer documents. (Paras 24, 25, 30)

D.
Compensation
Revised
-
Future
Prospects and Conventional Heads - The
Tribunal assessed the deceased's income at
Rs.3,500/month, applied a 1/3rd deduction, and
a multiplier of 17 - Held, the income was
revised to Rs.4,500/month, 50% added for
future prospects per National Insurance Co. Vs
Pranay Sethi and U.P. Motor Vehicles Rules,
1998, and conventional heads (loss of eSt.,
funeral expenses, consortium) increased to
Rs.1,50,000 per Pranay Sethi and Magma
General Insurance Vs Nanu Ram, resulting in
total compensation of Rs.10,68,000/-. (Paras 34,
37, 39, 40, 41, 42)

E.
Court's
Power
to
Enhance
Compensation Without Cross-Appeal - The
claimants
raised
oral
cross-objections
for
enhancement - Held, as per New India
Assurance Co. Ltd. Vs Lajjawati, the court can
enhance compensation to ensure a just award
under the Motor Vehicles Act, 1988, without
formal cross-objections. (Paras 18, 32, 33)

Appeal Dismissed.

List of Cases cited:

## Text

_Characters 0–39,895 of 46,253. This is a partial read: ask again with offset=39895 for what follows._

1 All. The New India Assurance Co. Ltd. Vs. Smt. Madhu & Ors.
477

21. Resultantly, instant First Appeal
From Order is allowed and the judgement
and order dated 10.12.2021 passed by
learned
trial
court
dismissing
the
restoration application moved on behalf of
the defendant-appellant under Order 9 Rule
13 C.P.C. is hereby quashed and said
restoration
application
is
allowed.
Consequently, ex-parte judgement and
decree dated 13.11.2009 passed by learned
District Judge, Court No.5, Muzaffar Nagar
in Original Suit No.648 of of 2008 (Julfkar
Ali vs. Rakesh Kumar Jain) is quashed as
well and Original Suit No.648 of 2008 is
restored to its original number. Parties are
relegated to the trial court. Suit shall be
decided afresh in accordance with law after
giving opportunity of hearing to the parties
concerned.

22. Before parting the matter, counsel
for the parties have prayed for issuing a
direction to the court below for expeditious
disposal of the suit. Having considered the
peculiar facts and circumstances of the
present case, wherein suit was decreed exparte on 13.11.2009 resulted into the
cancellation of the registered sale deed
dated 02.02.1994, it would be befitting to
issue a direction for expeditious disposal of
the suit. As such, this Court trust and
believe that learned trial court shall make
all endeavour to decide the suit within 12
months from the date of appearance of the
parties along with the certified copy of this
order.

23. Both the parties are hereby
directed to appear before the trial court
concerned
and
move
an
appropriate
application, along with the certified copy of
order of the date, on or before 22.01.2024.
Defendant-appellant is hereby directed to
submit his written statement along with
relevant documents relied upon by him on
or before the next date fixed by this Court
i.e. 22.01.2024, so that, unnecessary time
may not be wasted in filing the written
statement and trial could be expedited
within a stipulated period as directed
above.
----------
(2024) 1 ILRA 477
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.11.2023

BEFORE

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

First Appeal from Order No. 3597 of 2008

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

Counsel for the Appellant:
Ms. Aarushi Khare, Sri Sarvesh Kumar Pandey

Counsel for the Respondents:
Sri Vidya Kant Shukla

A. First Appeal From Order - Insurer's
Appeal
Dismissed,
Compensation
Enhanced - The New India Assurance Co. Ltd.
challenged the Motor Accident Claims Tribunal's
award dated 19.08.2008 granting Rs.4,85,000/-
with 7% interest - Held, the appeal was
dismissed as the Tribunal's findings on the
truck's involvement and driver's negligence were
upheld, but the compensation was enhanced to
Rs.10,68,000/- considering oral cross-objections
by the claimants. (Paras 1, 43, 44)

B. Negligence and Vehicle Involvement -
Tribunal's Findings Upheld - The Tribunal
found that Truck No. MP-09KA-4228 caused the
accident due to rash and negligent driving,
based on eyewitness testimony (PW-2) - Held,
as per Sunita Vs Rajasthan St. Road Transport
Corporation, a dependable eyewitness account
suffices in motor accident claims, and the
insurer's unproven documentary evidence (e.g.,
photocopied receipts) failed to disprove the
478 INDIAN LAW REPORTS ALLAHABAD SERIES
truck's involvement. (Paras 19, 22, 24, 27, 28,
31)

C. Standard of Proof in Motor Accident
Claims - Preponderance of Probability -
The insurer argued the truck was in Indore, not
Kanpur, and criticized the eyewitness's credibility
- Held, motor accident claims require a
preponderance of probability, not proof beyond
reasonable doubt, and the Tribunal's inquisitorial
role supports accepting PW-2's consistent
testimony over unproven police reports or
insurer documents. (Paras 24, 25, 30)

D.
Compensation
Revised
-
Future
Prospects and Conventional Heads - The
Tribunal assessed the deceased's income at
Rs.3,500/month, applied a 1/3rd deduction, and
a multiplier of 17 - Held, the income was
revised to Rs.4,500/month, 50% added for
future prospects per National Insurance Co. Vs
Pranay Sethi and U.P. Motor Vehicles Rules,
1998, and conventional heads (loss of eSt.,
funeral expenses, consortium) increased to
Rs.1,50,000 per Pranay Sethi and Magma
General Insurance Vs Nanu Ram, resulting in
total compensation of Rs.10,68,000/-. (Paras 34,
37, 39, 40, 41, 42)

E.
Court's
Power
to
Enhance
Compensation Without Cross-Appeal - The
claimants
raised
oral
cross-objections
for
enhancement - Held, as per New India
Assurance Co. Ltd. Vs Lajjawati, the court can
enhance compensation to ensure a just award
under the Motor Vehicles Act, 1988, without
formal cross-objections. (Paras 18, 32, 33)

Appeal Dismissed.

List of Cases cited:

1. Sunita Vs Rajasthan St. Road Transport
Corporation, (2020) 13 SCC 486

2. Parmeshwari Vs Amir Chand, (2011) 11 SCC
635

3. Mangla Ram Vs Oriental Insurance Co. Ltd.,
(2018) 5 SCC 656

4. Km. Jyoti Tripathi Vs Devendra Singh Yadav,
2023:AHC:208490
5. Sarla Verma Vs Delhi Transport Corporation,
(2009) 6 SCC 121

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

7. New India Assurance Co. Ltd. Vs Urmila
Shukla, 2021 SCC OnLine SC 822

8. Sushil Kumar Vs M/s. Sampark Lojastic
Private Limited, 2017 (35) LCD 1311

9. UP SRTC Vs Trilok Chandra, (1996) 4 SCC 362

10. Puttamma Vs K.L. Narayana Reddy, (2013)
15 SCC 45

11. Rajesh Vs Rajbir Singh, (2013) 9 SCC 54

12. Santosh Devi Vs National Insurance Co. Ltd.,
(2012) 6 SCC 421

13. Magma General Insurance Co. Ltd. Vs Nanu
Ram, (2018) 18 SCC 130

14. New India Assurance Co. Ltd. Vs Lajjawati,
2022 (6) AWC 5291

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

1. This is an appeal by the Insurance
Company assailing an award by the Motor
Accident
Claims
Tribunal/ Additional
District Judge, Court No.13, Kanpur Nagar
passed in Claim Petition No.236 of 2004
dated 19.08.2008, granting the claim and
awarding a sum of Rs.4,85,000/- to the
claimants together with interest, payable by
the Insurance Company.

2. Ramu Gupta was a chaat vendor.
He would sell his wares on a mobile cart
(thela). On the 10th of February, 2004,
Ramu Gupta parked his cart in the night
hours at the Bhadoria Crossing, situate in
Nehru Nagar, Kanpur Nagar and was
cycling his way back home. As he reached
near the Kanha Shyam Hotel, located at the
G.T. Road and was about the petrol pump
1 All. The New India Assurance Co. Ltd. Vs. Smt. Madhu & Ors.
479
there, Truck No. MP-09KA-4228, hit him
from the rear with full impact. Ramu
along with his bicycle was thrown to the
ground and died on the spot. The truck
was given a chase by Raj Kumar son of
Dularey Ram Verma, who was riding his
motorcycle. Another, Nand Kishore son
of Lal Deewan, who was riding pillion
with Raj Kumar, caught up with the
offending truck near the Gurudev Talkies
and noted down its registration number.
But, the truck driver was successful in
making a get away.

3. A First Information Report was
lodged by one Deepak Kumar, an employee
with the petrol pump against an unknown
driver. When the deceased's wife came to
know of the particulars of the truck, she
went to the police station and conveyed the
number of the offending truck. The
information regarding the number of the
offending truck was also sent by registered
post to the Senior S.P., Kanpur Nagar by
the deceased's wife on 20.02.2004.

4. The deceased is said to have been a
promising and hard working man, who was
the only bread-winning member of the
family. He was survived by his wife, a
minor son and a dependent father. The
family have no other source of income.
Ramu, at the time of his demise was aged
30 years, and it is said, that he had a
monthly income of Rs.5000/-. On the basis
of the FIR, Crime No.13 of 2004, under
Sections 379, 304-A and 427 IPC, Police
Station Nazirabad, District Kanpur Nagar
was registered. It is on the foot of these
facts that the claim petition, giving rise to
the present appeal, was instituted before the
Tribunal on 17.03.2004.

5. The claim petition was instituted by
Smt. Madhu Gupta, Ramu's widow, his
minor son Karan, aged about 7 years
through his next friend and mother, Madhu
Gupta and Har Dutt, the deceased's father.
The
three
claimants
are
claimantrespondent Nos.1, 2 and 3 to the appeal.
They shall hereinafter be called 'the
claimants'.
The
claim
petition
was
instituted against Hemant Kumar, the
owner of the offending truck, arrayed as
opposite party No.1 and the New India
Assurance Company Limited through the
Regional Manager, Civil Lines, Kanpur
Nagar, as opposite party No.2. Hemant
Kumar is arrayed as defendant-respondent
No.4 to this appeal. He shall hereinafter be
called 'the owner'. Opposite party No.2 to
the claim petition, the Insurance Company
aforesaid, are the appellants here, who shall
be called 'the insurers', hereinafter.

6. A written statement was put in on
behalf of the insurers generally denying the
claimants' case. It was pleaded by them that
the owner of the offending truck never gave
information of the accident to the insurers.
It was their case that the offending truck
was never involved in the accident. It is
next pleaded that the accident happened on
account of the deceased's negligence. The
further plea raised is that the offending
truck, on the date of the accident, was not
insured with the insurers and the driver did
not hold a valid and effective driving
licence. The deceased's age, income and
occupation are not established by any
documentary evidence.

7. No written statement was filed on
behalf of the owner. Accordingly, the claim
petition proceeded against the owner ex
parte.

8. On the pleadings of parties, the
following issues were struck (translated
into English from Hindi):
480 INDIAN LAW REPORTS ALLAHABAD SERIES

"(1) Whether on 10.02.2004 at
11.45 p.m. or thereabouts, near Kanha
Shyam Hotel, G.T. Goad, in front of the
petrol pump, falling in the local limits of
Police Station Nazirabad, District Kanpur
Nagar, the driver of Truck No. MP-09KA4228, driving it at a high speed and
negligently, hit the deceased Ramu's
bicycle, leading to his death on the spot?

(2) Whether the accident in
question happened on account of the
cyclist's own negligence?

(3) Whether at the time of the
accident in question, Truck No. MP-09KA4228 was insured with opposite party No.2,
the New India Assurance Company Ltd?

(4) Whether at the time of the
accident in question, the driver of Truck
No. MP-09KA-4228 held a valid and
effective driving licence?

(5) Whether the claimants are
entitled to receive any compensation? If
yes, how much and from which opposite
party?"

9. The claimants examined in support
of their case, PW-1 Madhu Gupta, PW-2
Nand Kishore and PW-3 Rajeev Yadav. The
claimants produced in their documentary
evidence, through a list, bearing Paper
No.6-Ga, a copy of the FIR and a copy of
the written information supported by
affidavit, sent by registered post to the
S.S.P. Through another list, bearing Paper
No.35-Ga, two documents were produced
from the Nagar Nigam, a copy of the
postmortem report and the site-plan. Vide
Paper No.41-Ga, a photostat copy of the
registration certificate was filed.

10. The insurers produced in their
documentary evidence, a copy of the final
report and the report of their Investigator,
Anil Kumar Pandey. Vide another list,
bearing Paper No.48-Ga, the insurers
produced a copy of the FIR and a certified
copy of the letter written to the Station
House Officer, P.S. Nazirabad, a copy of
the receipt from the Trade Tax Department
and a photostat copy of a receipt issued by
the Calcutta-Indore Transport Carrier.

11. The Tribunal decided Issue No.3
in favour of the owner and the claimants
and against the insurers., holding that the
offending truck, on the date and time of the
accident, was validly insured. Issue No.4
was also decided in favour of the owner
and the claimants, holding that on the date
and time of the accident, the driver of the
offending truck held a valid and effective
driving licence. Issues Nos.1 and 2 were
decided together answering Issue No.1 in
the manner that the accident was caused by
the driver of the offfending truck driving it
at a high speed and negligently, resulting in
Ramu's death on the spot. Issue No.2 was
answered in favour of the claimants and
against the insurer and the owner, holding
that the accident did not happen on account
of the deceased's negligence, in any
manner. In answering Issue No.5, the
Tribunal proceeded to work out the
dependency crediting the deceased with a
monthly income of Rs.3500/-. A one-third
was deducted towards the deceased's
personal and living expenses and a
multiplier of '17' was applied. Thus, the
substantive dependency worked out was a
sum of Rs.4,76,000/-. To this were added
under the conventional head, Rs.2000/-
towards cremation expenses, Rs.5000/-
towards the loss of consortium and mental
agony and Rs.2000/- towards the loss of
estate, aggregating a sum of Rs.9000/-. In
this manner, a total compensation of
Rs.4,85,000/- was awarded together with
7%
interest
payable
annually.
The
compensation was directed to be paid by
the insurers. A direction for apportionment
1 All. The New India Assurance Co. Ltd. Vs. Smt. Madhu & Ors.
481
of the compensation was made in terms that
the deceased's father was held entitled to a
sum of Rs.50,000/-, whereas out of the
remainder of the compensation, the widow
and the minor child were each entitled to a
half share. The compensation payable to
the minor was directed to be invested in
fixed deposit with a nationalized bank until
time that he attained majority.

12. Disillusioned by the award, the
insurers have appealed under Section 173
of the Motor Vehicles Act, 1988 (for short,
'the Act').

13. Heard Mr. Sarvesh Kumar Pandey
holding brief of Ms. Aarushi Khare, learned
Counsel for the insurers and Mr. Vidya
Kant Shukla, learned Counsel appearing on
behalf of the claimants.

14. It is argued by the learned
Counsel for insurers that the deceased was
travelling on a bicycle, when he was hit by
an unknown vehicle, and died. According
to him, it is a case of hit and run. On the
fateful day, that is to say, 10.02.2004, the
offending truck was in Indore and the
accident took place at Kanpur Nagar.
According to the learned Counsel, the
offending truck has been falsely shown
involved in the accident by the claimants,
acting in collusion with the owner. This is
apparently so because it was not possible
for the offending truck to cause an accident
at Kanpur Nagar, when it was present on
that day at Indore. It is the learned
Counsel's submission that the Tribunal
failed to consider documentary evidence,
comprising Paper No.50-C/1, that is to say,
the owner's application to the Police dated
25.09.2007, Paper Nos.51-C and 52-C/1,
filed by the insurers, which show that the
offending
truck
was
in
Indore
on
10.02.2004, making its involvement in the
accident at Kanpur an impossibility. The
FIR was lodged against an unknown
vehicle. It was subsequently and after lapse
of a period of ten days that the claimants
passed on information to the Police about
the offending truck's registration number.

15. It is emphasized by the insurers
that no charge-sheet was filed against the
offending truck or its driver, though
detailed investigation was undertaken by
the Police. The Investigating Officer came
to the conclusion that the insured vehicle's
involvement in the accident was not proved
by evidence. The eye-witness produced by
the claimants before the Tribunal was not
named in the final report submitted by the
Police. It is contended that it can, therefore,
be unmistakably concluded that the eyewitness produced was got up by the
claimants. It is also emphasized that it is
not the claimants' case that they filed a
protest petition before the Magistrate,
where the Police had put in their final
report.

16. On the other hand, learned
Counsel for the claimants, Mr. Vidya Kant
Shukla, has submitted that the accident
happened when the deceased was returning
home riding his bicycle. The offending
truck hit the deceased at about 11.45 p.m.
in front of the petrol pump located on the
G.T. Road. The FIR in the matter was
lodged by Deepak Kumar, an employee
with the petrol pump. The offending truck
was given a chase by Raj Kumar son of
Dularey Ram and Nand Kishore son of Lal
Deewan. Nand Kishore appeared in the
witness-box as PW-2 and proved the
accident involving the offending truck. The
registration number of the offending truck
was provided by Nand Kishore to the
deceased's widow, and, it was, thereupon
conveyed to the Senior Superintendent of
482 INDIAN LAW REPORTS ALLAHABAD SERIES
Police on 20.02.2004, by registered post.
The Police, however, did not investigate the
matter fairly and properly. They submitted
a final report on the basis that the unknown
truck driver was not traceable. It is
emphasized that the owner of the offending
truck never contested the claim, against
whom the claim proceedings went ex parte.

17. The present appeal has been
carried by the insurers alone on ground,
inter alia, that the offending truck was not
involved in the accident. The insurers have
filed receipts from a petrol pump, where
the offending truck was allegedly refuelled,
but the same have not been proved by any
witness. It is, particularly, emphasized that
the eye-witness, PW-2 has not been crossexamined about the identification of the
offending truck by the insurers. The owner
of the offending truck addressed the Police
and sent the driver's name as well as a
photostat copy of his driving licence,
registration certificate, the insurers' policy
etc. on 07.09.2007. He never said that his
vehicle was not involved in the accident.
The owner again sent information on
25.09.2007 taking a stand that on the date
of accident, the vehicle was away from the
place of accident, but documents to prove
the fact, were never proved by any witness.
The fact that the vehicle was involved in
the accident is well established by the
claimants'
testimony,
both
oral
and
documentary.

18. It is next submitted on behalf of
the claimants that the deceased was a chaat
vendor and would earn Rs.250-300/- per
day. In this regard, the testimony of PW-1
has been emphasized. The Tribunal has
assessed his income at a figure of Rs.125/-
per day i.e. Rs.3750/- per month, but
calculated compensation on the basis of a
monthly income of Rs.3500/-. It is next
submitted that the deceased was 30 years
old and according to the law laid down by
the Supreme Court in Sarla Verma (Smt)
v. Delhi Transport Corporation and
another, (2009) 6 SCC 121, a multiplier of
'17' ought to have been adopted by the
Tribunal, the deceased being in the age
bracket
of
26-30.
The
award
of
compensation under the conventional heads
is urged to be inadequate, as also the nongrant of compensation towards future
prospects. In substance, the claimants have
come up with an oral cross-objection to the
extent that they claim enhancement of
compensation in order to make it a just
award.

19. Upon hearing learned Counsel for
the parties, this Court finds that the
Tribunal has meticulously considered the
testimony of PW-2 and believed it. PW-2 is
an eye-witness. The truck number is said to
have been given out by PW-1 to the Police
after she was informed about it by Raj
Kumar Soni and Nand Kishore Soni at her
house, as she says in her testimony.

20. So far as PW-2 is concerned, this
Court has looked into his testimony. In the
examination-in-chief, he has testified:

"वदनांक 11.2.04 क िैं अपने ररस्तेदार श्री
राजकुिार स नी की ि िर साइवकि िें पीछे
बैिकर सब्जी िण्डी िादशाही नाका से िाजपत
नगर अपने घर जा रहा था। जैसे ही हि ि ग
जीिी० र ड पर कान्या श्याि ह िि के पास
पेिर ि िंकी के सािने रावि 11-45 बजे पहुंचे वक
देखा वक हिारे सािने जा रहे एक साइवकि
चािक क िरक नम्बर MP09K.A.4228 के
डराईिर ने बडी तेजी ि िापरिाही से चिात हुआ
साइवकि चािक क सडक के वकनारे 2 जा रहा
था ज रदार िक्कर िार वदया साइवकि चािक
वगर गया था िरक चािक िरक क िेकर
1 All. The New India Assurance Co. Ltd. Vs. Smt. Madhu & Ors.
483
कत्यानपुर की तरफ भाग रहा था गुरूदेि चौराहे
तक हि द न ं ने पीछा वकया िेवकन र कने की
क वसस की िेवकन रूका नहीं उस रात हि
ि ग नम्बर न ि करके अपने 2 घर चिे गये थे।
घिना की सूचना तीसरे वदन अखिार के िाध्यि
से जानकारी हुई वक उक्त घायि व्यक्तक्त की
िृत्यु ह गई। िैंने नजीराबाद थाने िें नाि पता
वकया (िृतक का) इसके बाद िृतक के घर
राितपुर गांि गया। िृतक की पत्नी िर्ु गुप्ता क
िरक का नम्बर विखकर ि अपना नाि पता
विखकर दे आये थे।"

21. In the cross-examination of the
witness, that was deferred on 02.10.2006 to
28.11.2006, PW-2 has stated:

"और 10.2.04 क भी िैं बादशाही नाका
पर सब्जी के कार बार िें व्यस्त था। तथा
11.2.04 क भी िैं बादशाही नाका िें ही था।
राजकुिार स नी िेरे ररश्तेदार है। तथा उनका
िकान नं० िुझे नहीं िािूि। राजकुिार स नी ही
ि िर साइवकि चिा रहे थे। ि िर साइवकि का
नम्बर िुझे नहीं िािूि। उनकी ि िर साइवकि
कािे रंग की हीर ह न्डा था। घिना स्थि पर
तुरन्त ही िैं पहुंच गया था। भागते हुए िरक क िैं
पकड नहीं पाया िह वनकि गया। नम्बर न ि
कर विया था। िरक ि डेड था। और िैंने उसका
नम्बर देख भी विया था उसके आगे गुरूदेि
िावकज तक पीछा वकया और िहॉ पर पहुंच
पुविस िाि क िैंने बताया। उन्ह ंने िुझसे कहा
वक तू भी िरना चाहता है क्या, तू अपने घर जा।
और पुविस िाि ने िुझे भाग वदया। इसके बाद
िैं अपने घर आ गया।""

22. So far as this witness is
concerned, his testimony is consistent and
natural. The fact that he gave information
to the deceased's wife some three days
after the occurrence, is also logical,
because the two are not acquaintances. In
a road accident, the likelihood of an eyewitness, being a stranger to the victim and
his family, enhances his credit rather than
render his testimony doubtful. In the
logical sequence of things, if the witness,
who has given the offending truck a chase
and noted its number, would miss the
identity of the deceased, who in the
meantime would have been removed from
site. The FIR in this case was lodged by
the
petrol
pump
attendant,
Deepak
Kumar. After the chase was over and the
offending truck's number noted by PW-2,
there was no way the witness would have
known
the
deceased's
whereabouts,
except the way he has himself spoken of
in his examination-in-chief. He read
about the name of the deceased in the
newspaper and went to the police station
concerned. It was there that he came to
know of his address, went over and
conveyed the number of the offending
truck to his wife. In the nature of things,
the testimony of PW-2 is natural and his
presence not doubtful. In his crossexamination, the witness has said that he
chased the vehicle upto a certain Gurudev
Talkies, where he found some policemen
on duty, whom he informed about the
offending truck, that was still in the
vicinity. He has stated in his crossexamination that the policemen told him
if he too wants to die and that he should
go
home.
This
attribution
to
the
policemen is also something, which is not
unbelievable. This kind of apathy is often
seen amongst the lower ranks of the
police, if something like an accident is
brought to their notice by a common man
of no special status. There is no reason to
discard the eye-witness account of Nand
Kishore, PW-2, which the Tribunal has
wholesomely
believed.
We
are
in
agreement with the Tribunal on this point.
484 INDIAN LAW REPORTS ALLAHABAD SERIES

23. The learned Counsel for the
insurers has criticized the findings of the
Tribunal about the eye-witness on ground
that in the final report submitted by the
Police, this witness is not mentioned. As
already noticed, the learned Counsel for the
insurers has dubbed this witness a planted
one. There is a scathing criticism of his
testimony in the minutest detail by the
learned Counsel for the insurers. We cannot
agree with the approach that the learned
Counsel for the insurers wants us to adopt
in evaluating the testimony of PW-2.

24. In a motor accident, the standard
by which the case has to be established is
not one beyond reasonable doubt or the
criminal standard. It may even be lesser
than the strict civil standard of probability.
The reason is that what the Tribunal does is
not precisely hold trial of an action. It has
to hold an inquiry into the accident, where
its role is primarily inquisitorial. The Act is
a social welfare legislation and the Tribunal
in keeping with its purpose, has to ensure
that an aggrieved, if there be evidence,
should not be denied recompense by
adopting a hyper-technical approach to the
evidence that is forthcoming. A dependable
eye-witness account before the Tribunal by
a solitary eye-witness, who has identified
the vehicle, is good enough to fix liability.

25. The remarks of the Supreme
Court in Sunita and others v. Rajasthan
State Road Transport Corporation and
others,
(2020)
13
SCC
486
are
illuminating. It is observed in Sunita
(supra):

"30. Clearly, the evidence given
by Bhagchand withstood the respondents'
scrutiny and the respondents were unable to
shake his evidence. In turn, the High Court
has failed to take note of the absence of
cross-examination of this witness by the
respondents, leave alone the Tribunal's
finding
on
the
same,
and
instead,
deliberated
on
the
reliability
of
Bhagchand's (AD 2) evidence from the
viewpoint of him not being named in the
list of eyewitnesses in the criminal
proceedings, without even mentioning as to
why such absence from the list is fatal to
the case of the appellants. This approach of
the High Court is mystifying, especially in
light of this Court's observation (as set out
in Parmeshwari [Parmeshwari v. Amir
Chand, (2011) 11 SCC 635 : (2011) 4 SCC
(Civ) 828 : (2011) 3 SCC (Cri) 605] and
reiterated in Mangla Ram [Mangla Ram v.
Oriental Insurance Co. Ltd., (2018) 5 SCC
656 : (2018) 3 SCC (Civ) 335 : (2018) 2
SCC (Cri) 819] ) that the strict principles of
proof in a criminal case will not be
applicable in a claim for compensation
under the Act and further, that the standard
to be followed in such claims is one of
preponderance of probability rather than
one of proof beyond reasonable doubt.
There is nothing in the Act to preclude
citing of a witness in motor accident claim
who has not been named in the list of
witnesses in the criminal case. What is
essential is that the opposite party should
get a fair opportunity to cross-examine the
witness concerned. Once that is done, it
will not be open to them to complain about
any prejudice caused to them. If there was
any doubt to be cast on the veracity of the
witness, the same should have come out in
cross-examination, for which opportunity
was granted to the respondents by the
Tribunal."

26. In this case also, the insurers got
ample opportunity to cross-examine PW-2,
but
there
is
nothing
in
his
crossexamination that may shake his veracity or
make his presence doubtful on the scene of
1 All. The New India Assurance Co. Ltd. Vs. Smt. Madhu & Ors.
485
accident. About the approach of the
Tribunal to be more inquisitorial in a motor
accident claim than adversarial, reference
may be made to the decision of this Court
in Km. Jyoti Tripathi and others v.
Devendra Singh Yadav and others,
2023:AHC:208490.
This
Court,
therefore, is in wholehearted agreement
with the Tribunal about the conclusions
that it has reached based on the testimony
of PW-2.

27. There is much contention on behalf
of the learned Counsel for the insurers
that the documentary evidence shows that
the offending truck was at a far away
place on the date of occurrence, which
makes it impossible to be involved in the
accident. To this end, reliance has been
placed on the fact that the truck was
booked with a consignment from Calcutta
(now Kolkata) to Indore on 05.02.2004.
This is attempted to be proved by Paper
No.51-Ga, which is a sales tax receipt.
The margin of this receipt bears the
signature of the driver, Rajvansh. It also
bears the receipt of the Trade Tax
Department. The receipt has been relied
on to show that the offending truck left
Calcutta
for
destination
Indore
on
05.02.2004, carrying its consignment.
The Tribunal has remarked that there is
no
testimony
to
show
that
after
07.02.2004, what were the whereabouts
of the offending truck. The Tribunal has
observed that the accident happened on
10.02.2004 at 11.45 in the night hours. In
the absence of testimony to indicate the
whereabouts of the offending truck
between 07.02.2004 and 10.02.2004, a
period of three days and three nights is
enough, as the Tribunal says, for a fast
moving
vehicle
like
a
truck
to
conveniently traverse the distance and
arrive at Kanpur on the date and time of the
accident. This finding by the Tribunal
cannot be flawed.

28. Moreover, the receipt Paper
No.51-Ga is a photostat copy of the
document and no explanation has been
given why the original has not been or
could not be produced. It is difficult to
place reliance on secondary evidence in
this fashion.

29. There are then documents about
refueling of the vehicle, Paper No.52-Ga
from B.P. Malva, Fatehpur (U.P.) dated
08.02.2008. This records the number of the
truck and the quantity of the diesel oil
purchased and its price. This too is a
photocopy of the receipt. There is a
computerized receipt and a hand written
receipt. Both the receipts are photocopies.
The receipts, as already said, have been
issued by petrol pump in District Fatehpur,
Uttar Pradesh. The receipt is dated
08.02.2004. It is not known what route the
truck was taking at the time when it
refueled at Fatehpur and if it was still en
route to Indore. If it was not proceeding to
Indore, Fatehpur is located hardly 70
kilometers away from Kanpur and the
offending truck could have very well been
at Kanpur on 10.02.2004, when the
accident happened. The Tribunal has
remarked that it is urged that the
consignment
loaded
at
Calcutta
was
delivered to the consignee Anil Enterprises
at Indore on 11.02.2004 by the offending
truck, but this fact has not been proved by
examining the proprietor or the manager of
Anil Enterprises. The approach of the
Tribunal in drawing its inference about the
whereabouts of the vehicle at the time of
the accident is flawless, which we uphold.

30. The police investigation has been
much harped upon by the learned Counsel
486 INDIAN LAW REPORTS ALLAHABAD SERIES
for the insurers. The Tribunal, for detailed
reasons assigned, has not accepted the
conclusions of the Police. This Court is not
inclined to extend much credit to the police
investigation in the present case, contrary
to a dependable eye-witness account.

31. For all that we have said about the
remarks of the Tribunal regarding the
involvement of the offending truck in the
accident, this Court holds in agreement
with the Tribunal that the accident was
caused by the offending truck. The
deceased was riding a bicycle and was hit
by the truck on the rear side. The Tribunal
has found that the deceased was not at all
negligent and for the reasons that the
Tribunal has given and otherwise too, we
believe the testimony of PW-2 on this score
and hold that the accident was caused
solely on account of the offending truck's
driver's negligence.

32. This takes this Court to the other
question, if the compensation awarded by
the Tribunal should be enhanced. There is
certainly an oral cross-objection, though no
formal cross-objection or cross-appeal has
been filed. The claimants have asked for
just compensation to be awarded.

33. It is the duty of this Court under
the Act to make a just award. That this
Court has the power, in the absence of
cross-objections by the claimant, to pass a
just award, has been held in New India
Assurance Co. Ltd. v. Smt. Lajjawati
and
others,
2022
(6) AWC
5291.
Accordingly,
this
Court
holds
that
compensation in this case ought to be
revised. This Court proceeds to do so.

34. The Tribunal after considering the
deceased's avocation, who was a chaat
vendor and the testimony about the affairs
of his business has estimated his income at
a sum of Rs.125/- per day as against
Rs.250/- to Rs.300/- claimed for him. The
accident happened in the year 2004. It is
difficult to precisely assess the income of a
vendor of foodstuffs, like chaat, but given
the circumstances that the deceased was
occupied in his avocation until the late
evening hours, in a city like Kanpur, about
the year 2004, one can reasonably infer for
the deceased a daily income of Rs.150/-.
This would lead to a monthly income of
Rs.4500/-. The annual income would,
therefore, be Rs.54,000/-.

35. The deceased had a family of
three, besides himself, that is to say, his
wife, a minor child and aged father, who
are his dependents. Considering the child to
be half a unit, the deceased would be
placed in the bracket of 2-3 as laid down in
Paragraph No.32 of the report in Sarla
Verma (supra). For the said bracket,
deduction towards personal and living
expenses would be one-third. The finding
of the Tribunal on this score is, therefore,
flawless and affirmed.

36. The Tribunal has adopted a
multiplier of '17', which also accords with
what is laid down in Paragraph No.42 of
the report in Sarla Verma. The adopted
multiplier
also
does
not
require
interference.

37. What the Tribunal, however, has
not awarded is compensation payable on
account of future prospects. After the
decision in National Insurance Company
v. Pranay Sethi and others (2017) 16
SCC 680, it is well settled that future
prospects are payable even to those, who
are self-employed or work on fixed wages.
The percentage of addition towards future
prospects in the State of U.P. is governed
1 All. The New India Assurance Co. Ltd. Vs. Smt. Madhu & Ors.
487
by Rule 220-A(3) of the U.P. Motor
Vehicles Rules, 1998 (for short, 'the Rules
of 1998') as held in New India Assurance
Co. Ltd v. Urmila Shukla and others,
2021 SCC OnLine SC 822.

38. The fact that this accident took
place much before the introduction of Rule
220-A to the Rules of 1998, would not
make the Rules inapplicable, as held in
Sushil Kumar and others v. M/s.
Sampark Lojastic Private Limited and
others, 2017 (35) LCD 1311.

39. Under Rule 220-A(3) of the Rules
of 1998, the deceased being aged less than
40 years, 50% would have to be added to
her income on account of future prospects.

40. So far as conventional heads go,
the law in this regard is again laid down by
Pranay Sethi (supra), where it is held:

"48. This aspect needs to be
clarified
and
appositely
stated.
The
conventional sum has been provided in the
Second Schedule to the Act. The said
Schedule has been found to be defective as
stated by the Court in Trilok Chandra [UP
SRTC v. Trilok Chandra, (1996) 4 SCC
362] . Recently, in Puttamma v. K.L.
Narayana
Reddy
[Puttamma
v.K.L.
Narayana Reddy, (2013) 15 SCC 45 :
(2014) 4 SCC (Civ) 384 : (2014) 3 SCC
(Cri) 574] it has been reiterated by stating :
(SCC p. 80, para 54)

"54. ... we hold that the Second
Schedule as was enacted in 1994 has now
become
redundant,
irrational
and
unworkable due to changed scenario
including the present cost of living and
current rate of inflation and increased life
expectancy."

49. As far as multiplier or
multiplicand is concerned, the same has
been put to rest by the judgments of this
Court. Para 3 of the Second Schedule also
provides for general damages in case of
death. It is as follows:

"3. General damages (in case of
death):

The following general damages shall
be payable in addition to compensation
outlined above:

(i) Funeral expenses
Rs 2000
(ii) Loss of consortium, if
beneficiary
is
the
spouse
Rs 5000
(iii
)
Loss of estate
Rs 2500
(iv
)
Medical expenses -
actual
expenses
incurred before death
supported
by
bills/vouchers but not
exceeding
Rs 15,000"

50. On a perusal of various
decisions of this Court, it is manifest that
the Second Schedule has not been followed
starting from the decision in Trilok
Chandra [UP SRTC v.Trilok Chandra,
(1996) 4 SCC 362] and there has been no
amendment to the same. The conventional
damage amount needs to be appositely
determined. As we notice, in different cases
different amounts have been granted. A
sum of Rs 1,00,000 was granted towards
consortium inRajesh [Rajesh v. Rajbir
Singh, (2013) 9 SCC 54 : (2013) 4 SCC
(Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014)
1 SCC (L&S) 149] . The justification for
grant of consortium, as we find fromRajesh
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 :
(2013) 4 SCC (Civ) 179 : (2013) 3 SCC
488 INDIAN LAW REPORTS ALLAHABAD SERIES
(Cri) 817 : (2014) 1 SCC (L&S) 149] , is
founded on the observation as we have
reproduced hereinbefore.

51. On the aforesaid basis, the
Court has revisited the practice of awarding
compensation under conventional heads.

52. As far as the conventional
heads are concerned, we find it difficult to
agree
with
the
view
expressed
in
Rajesh[Rajesh v. Rajbir Singh, (2013) 9
SCC 54 : (2013) 4 SCC (Civ) 179 : (2013)
3 SCC (Cri) 817 : (2014) 1 SCC (L&S)
149] . It has granted Rs 25,000 towards
funeral expenses, Rs 1,00,000 towards loss
of consortium and Rs 1,00,000 towards loss
of care and guidance for minor children.
The head relating to loss of care and minor
children does not exist. ThoughRajesh
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 :
(2013) 4 SCC (Civ) 179 : (2013) 3 SCC
(Cri) 817 : (2014) 1 SCC (L&S) 149] refers
to Santosh Devi [Santosh Devi v. National
Insurance Co. Ltd., (2012) 6 SCC 421 :
(2012) 3 SCC (Civ) 726 : (2012) 3 SCC
(Cri) 160 : (2012) 2 SCC (L&S) 167] , it
does not seem to follow the same. The
conventional
and
traditional
heads,
needless to say, cannot be determined on
percentage basis because that would not be
an
acceptable
criterion.
Unlike
determination of income, the said heads
have to be quantified. Any quantification
must have a reasonable foundation. There
can be no dispute over the fact that price
index, fall in bank interest, escalation of
rates in many a field have to be noticed.
The court cannot remain oblivious to the
same. There has been a thumb rule in this
aspect. Otherwise, there will be extreme
difficulty in determination of the same and
unless the thumb rule is applied, there will
be immense variation lacking any kind of
consistency as a consequence of which, the
orders passed by the tribunals and courts
are likely to be unguided. Therefore, we
think it seemly to fix reasonable sums. It
seems to us that reasonable figures on
conventional heads, namely, loss of estate,
loss of consortium and funeral expenses
should be Rs 15,000, Rs 40,000 and Rs
15,000 respectively. The principle of
revisiting the said heads is an acceptable
principle. But the revisit should not be factcentric or quantum-centric. We think that it
would be condign that the amount that we
have quantified should be enhanced on
percentage basis in every three years and
the enhancement should be at the rate of
10% in a span of three years. We are
disposed to hold so because that will bring
in consistency in respect of those heads."

(emphasis by Court)

41. So far as the loss of consortium is
concerned, the principles are elaborately
laid down by the Supreme Court in Magma
General Insurance Company Ltd. v.
Nanu Ram alias Chuhru Ram and
others, (2018) 18 SCC 130, where it has
been observed:

"21. A Constitution Bench of this
Court in Pranay Sethi[National Insurance
Co. Ltd. v. Pranay Sethi, (2017) 16 SCC
680 : (2018) 3 SCC (Civ) 248 : (2018) 2
SCC (Cri) 205] dealt with the various heads
under which compensation is to be awarded
in a death case. One of these heads is loss
of
consortium.
In
legal
parlance,
"consortium" is a compendious term which
encompasses
"spousal
consortium",
"parental
consortium",
and
"filial
consortium".