# The Oriental Insurance Co. Ltd v. Kishwar Ali & Ors

- **Citation:** (2020) 1 ILRA 887
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-27
- **Case number:** FAFO No. 364 of 2000
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-co-ltd-v-kishwar-ali-ors-45293
- **Pages:** 5

## Headnote

Act,
1988
-
Compensation - Liability to pay - Driving
licence - Genuineness - Issue as to who
will
be
responsible
to
pay
the
compensation - Tribunal rightly held that
the driving licence cannot be held to be
either fake or not genuine - Driving licence
bore on its face, the signature of the
concerned transport authority - Burden to
proof contrary was never discharged -
Finding recoded by the tribunal that the
driver of the aforesaid offending vehicle
was possessing valid and effective driving
licence, cannot be faulted with at this
juncture. (Para 20 & 21)

First Appeal From Order dismissed. (E-1)

## Text

1 All. The Oriential Insurance Co. Ltd. Vs. Kishwar Ali & Ors.
887
rejection order of nomination of the independent
candidate Shri Shrikant filed as Annexure-4 to
the election petition, contain different grounds of
rejection. Despite required by the returning
officer such 20 candidates could not remove
defects as pointed out by the returning officer and
consequently, their nomination papers were
rejected. Election petitioner has not mentioned at
all in the aforesaid paragraphs that which
provisions of the Act, 1951 or the Rules 1961 or
guidelines or instructions of the Election
Commission of India, have not been acted upon
by the returning officer which materially affected
the result of the election. In view of this,
averments made in paragraph-44, 45, 52 and 53
of the election petition deserves to be struck out.

62. Paragraphs-46, 47, 48 and 49 are
unnecessary, frivolous and vexatious and
do not constitute material facts with regard
to the grounds stated by the petitioner in
paragraph-17 of the election petition.
Whether the election petitioner is popular
or not or some persons other than the
respondent winning candidate has filed
nomination papers from some other
parliamentary constituency are wholly
irrelevant for the purposes of grounds of
challenge of the election of the respondent
in the present election petition.

63. For all the reasons afore-stated,
paragraphs-8, 9, 10, 14, 16, 24, 25, 44, 45,
46, 47, 48, 49, 52, 53 and para-17(B) and
Para 17(C) of the election petition, are
struck out under Order VI Rule 16, C.P.C.
The
Application
A-9
filed
by
the
respondent returned candidate under Order
VI Rule 16, C.P.C., is partly allowed.

64. The rest of the paragraphs of the
election petition disclose material facts
and cause of action relatable to Ground
17(A), which needs to be adjudicated.
Therefore, the Application A-10 under
Order VII Rule 11, C.P.C. filed by the
respondent returned candidate, is rejected.

65. Service of election petition upon the
respondent was made sufficient by this court
by order dated 23.09.2019 on which date the
respondent winning candidate has filed
Application A-9 under Order VI Rule 16,
C.P.C., Application A-10 under Order VII
Rule 11, C.P.C. and Application A-11 under
Order VIII Rule 1, C.P.C., all dated
23.09.2019. After exchange of affidavits, the
parties argued on the Application A-9 and A10, which have been decided by this order.
Therefore, considering the entire facts and
circumstances of the case, the Application A11 under Order VIII Rule 1, C.P.C. filed by the
respondent winning candidate praying for
grant of time for filing written statement, is
allowed. The respondent winning candidate
may file written statement within 30 days.

66. In result, the Application A-9 is
partly allowed, the Application A-10 is
rejected and the Application A-11 is
allowed, as discussed above.

67. List on 05.03.2020 at 2 P.M. for
framing of issues.
----------
(2020)1ILR 887

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.11.2019

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

FAFO No. 364 of 2000

The Oriental Insurance Co. Ltd.
 ...Appellant
Versus
Kishwar Ali & Ors. ...Respondents

Counsel for the Appellant:
888 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Subhash Chandra Srivastava

Counsel for the Respondents:
Sri Shailendra Pratap Singh

A.
Motor
Accident
Act,
1988
-
Compensation - Liability to pay - Driving
licence - Genuineness - Issue as to who
will
be
responsible
to
pay
the
compensation - Tribunal rightly held that
the driving licence cannot be held to be
either fake or not genuine - Driving licence
bore on its face, the signature of the
concerned transport authority - Burden to
proof contrary was never discharged -
Finding recoded by the tribunal that the
driver of the aforesaid offending vehicle
was possessing valid and effective driving
licence, cannot be faulted with at this
juncture. (Para 20 & 21)

First Appeal From Order dismissed. (E-1)
(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. Heard Sri Subhash Chandra
Srivastava,
learned
counsel
for
the
appellant, Sri Shailendra Pratap Singh,
learned counsel for claimants-respondents
no.1 and 2 and perused the judgment and
order impugned.

2. This first appeal from order has
been filed by the appellant against the
judgment and decree dated 18.12.1999
passed
by
Motor
Accident
Claims
Tribunal/Special Judge, Ghaziabad in
M.A.C.T. No. 53 of 1997.

3. The only legal point urged before
this Court pertains to the non-existence of
any driving licence purportedly held or
possessed by the driver of the offending
vehicle opposite party no.3- Udaiveer
Tyagi (Driver of Truck No. U.G.U.-8058).

4. Contention is that in this case, as
per Form No.54, there is no mention of
any such licence having been issued in
favour of respondent no.3- Udaiveer
Tyagi. It is specific testimony of the
witness
for
the
concerned
transport
department that there is no mention of any
renewal as such of any such licence in
question in the relevant register meant for
renewal of the licences, and in the wake of
above, claim is that obviously it cannot be
held that the truck driver was holding or
possessing a valid and effective driving
licence and he ever got the same renewed
at any point of time. The driving licence
produced is fake and not genuine.

5. Apart from that, the learned
counsel has also challenged the amount of
compensation to the tune of Rs. 1,28,000/-
along with 12 % interest claiming it to be
excessive under facts and circumstances of
the case.

6. Counsel for the claimantsrespondents has refuted the aforesaid
contention by claiming that the witness of
the concerned transport department was
itself brought by the Insurance Company.
As per his testimony, it is nowhere
established that the licence is fake. The
total exercise required to be undergone in
this context was not followed and mere
perfunctory reference of certain missing
entry in certain register meant and kept for
renewal of the licences alone was made
before the tribunal that would by no sketch
of
imagination
establish
things
satisfactorily branding the driving licence
to be fake and illegal. In that regard, the
tribunal was justified when it held that
there was non production of the concerned
register meant for renewal of the driving
licences and this indicates that the burden
of proof as was required to be discharged
by the Insurance Company regarding fact
pertaining to non renewal of the driving
1 All. The Oriential Insurance Co. Ltd. Vs. Kishwar Ali & Ors.
889
license in question, thus it being fake
driving
license,
was
not
properly
discharged by it. In such scenario, the
insurance company itself is to be blamed.
Nothing prevented the appellant-insurance
company from proving the fact of driving
licence being fake. But it tried to establish
this particular fact merely by leading
verbal testimony and not producing the
relevant register before the tribunal.

7. I have considered the rival
submissions
and
also
perused
the
impugned
award
dated
18.12.1999,
whereby overall compensation amount Rs.
1,28,000/- along with accrued interest @
12% per annum has been awarded to the
claimants-respondent
nos.1
and
2-
Kishwar Ali and Rahul Khan.

8. But before proceeding with this
case, it would be appropriate in the fitness
of things that a sketch of the incidents
leading to the filing of the claim petition
before the tribunal and this appeal before
this Court be referred here for the sake of
convenience.

9. Bare perusal of the record shows
that the accident in question allegedly took
place on 20.12.1996, when Smt. Neksee
(deceased), who was going to purchase
fodder for her animals along with her
father-in-law sustained injuries by rash
and negligent driving (of the offending
vehicle) at 11:30 a.m. at place 100 feeta,
tri-crossing, Meerut Road, Ghaziabad
within Police Station Singhani Gate by
Truck No. U.G.U.-8058, thus causing
serious injuries to her. She was taken to
the government hospital at Ghaziabad and
got admitted, where she succumbed to her
injuries on 21.12.1996 around 3 a.m. in the
night. The matter was reported at the
aforesaid police station on 21.12.1996.
The post-mortem examination on the dead
body of Smt. Neksee was done at the
mortuary.

10. On the basis of aforesaid
accident, claim has been raised by filing
petition that the deceased at the time of the
alleged accident was pregnant aged 22
years and she was earning Rs.3,000/- per
month from various works including
animal husbandry and out of this income,
the claimants-respondents were being
maintained and they are the dependents of
the deceased.

11. It has been claimed that opposite
party no.1, namely respondent no.3 of this
appeal- Udaiveer Tyagi was driving the
offending vehicle at that point of time
being Truck No. U.G.U.-8058. The truck
was owned by defendant-respondent no.4-
Sri Rajvansh Bajaj and at that relevant
point of time, this truck was insured with
the present appellant. Under various heads,
overall compensation amount to the tune
of Rs. 18,50,000/- was demanded as
compensation.

12. Joint written statement was filed
by the owner and the driver of the
offending Truck No. U.G.U. No.-8058,
wherein the factum of accident was
denied. In the written statement, the
factum of ownership of the truck and the
truck being driven by the aforesaid
Udaiveer Tyagi was admitted apart from
fact that the offending truck was insured
with the insurance company- the present
appellant. The insurance company also
filed its written statement, whereby it
denied all the claims and claimed
immunity
on
various
counts.
After
perusing the pleadings of both the sides,
the following three issues were framed by
the tribunal:-
890 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Issue No.1 related to fact,
whether the accident in question was
caused by rash and negligent driving of
Truck No. U.G.U.-8058 by driving it
rashly and negligently by its driver on
20.12.1996 at 11:30 a.m. at place 100
feeta,
tri-crossing,
Meerut
Road,
Ghaziabad
within
Police
Station
-
Singhani Gate ?

14. Issue no.2 related to fact, as to
what amount, if any are the claimants
entitled to receive ?

15. Issue no.3 related to fact, whether
the deceased herself contributed towards
the accident as has been averred in para
no.23 of the written statement of the
opposite
party
no.3-
(the
present
appellant), If yes, its affect ?

16. In so far as issue no. 1 and issue
no.3 are concerned, both these issues being
interconnected were decided by common
finding by the tribunal.

17. In so far as finding on issue no.1
is concerned, then both the sides had
opportunity to lead evidence and to file
documentary proof pros and cons as per
their respective claim, which they did.

18. The tribunal after appreciating the
evidence and particularly the testimony of
P.W.1 and P.W.2 recorded finding that the
accident in question was in fact caused by the
aforesaid offending vehicle by driving the
same rashly and negligently at the aforesaid
time and place within Police Station - Singhani
Gate, District - Ghaziabad and there was no
contributory negligence whatsoever caused by
the deceased (Neksee).

19. In so far as issue no.2 is
concerned, it primarily related to the fact
of the amount of compensation, if any, to be
awarded to the claimants, then it is noticeable
from the award itself that the incident took
place in the year 1996 and at that point of time
after
perusing
the
testimony
and
the
documentary evidence, it was opined by the
tribunal that the monthly income of the
deceased was Rs.1,000/-. Accordingly, the
annual income was assessed after slicing off
1/3rd of the overall amount i.e. to say annual
income being Rs. 12,000/- and after deducting
1/3rd, it comes to Rs. 7,800/- (1000-350=650 x
12= 7,800/-) per annum. After making point
wise calculation as per the aforesaid statistics,
the tribunal applied multiplier of 16 to the
annual
dependency
Rs.
7,800/-,
thus
aggregating to Rs. 1,28,000/-, which finding
does not suffers from any infirmity and is
liable to be confirmed, at this stage.
Accordingly, confirmed.

20. The next point decided by the
tribunal regarding aforesaid finding relates to
fact as to who will be the person responsible to
pay the aforesaid amount of compensation,
when obviously after analytical and analogical
approach and after perusing the evidence on
record and primarily the testimony produced
by the insurance company- the present
appellant. On point of effectiveness of the
driving licence, it was rightly held by the
tribunal that the driving licence in question
cannot be held to be either fake or not genuine
and this analytical exercise was properly
conducted by the tribunal primarily on ground
that the relevant document, the licence renewal
register of the concerned transport authority
was never produced so as to give credence to
the claim made by the witness produced by the
insurance company on the point of entry made
in the renewal register kept for renewal of
licences.

21. Next, the driving licence itself
was produced by the driver of the
1 All. U.P.S.R.T.C., Bhaisali Road Depot Meerut Vs. Mohd. Azad & Anr.
891
offending truck, which bore on its face, the
signature of the concerned transport authority
which in fact, issued the driving licence.
Under these circumstaces, it was incumbent
on
the
transport
authority
to
have
satisfactorily
and
reasonably
denied
endorsement of that particular transport
authority on the driving licence as such, but
this burden was never discharged properly
and in view of the fact that claim raised by
producing the driving licence itself and the
copy of the application for renewal of the
licence in qeustion moved before the
concerned transport authority and in view of
the various directions and views expressed by
the Hon'ble Apex Court in various cases
referred in the judgment of the tribunal it
recorded finding that the driver of the
aforesaid offending vehicle was possessing
valid and effective driving licence, which
finding cannot be faulted with, at this
juncture, as the scrutiny done by the tribunal
appears to be based on material on record and
the verbal claim against non renewal does not
carry substance.

22. Considering the age of the deceased
and the entirety of this case, this Court is of the
considered opinion that the amount of overall
compensation Rs.1,28,000/- carrying 12%
interest per annum cannot be said to be either
excessive or unreasonable amount. But it is
just compensation.

23.
Consequently,
the
finding
recorded by the claims tribunal in Claim
Petition No. 53 of 1997 (Kishwar Ali and
another vs. Udaiveer Tyagi and others) on
all the three issues is hereby upheld.

24. Therefore, the appeal being
devoid of merit is hereby rejected.

25. Office is directed to remit the
amount of appeal Rs. 25,000/- back to the
tribunal, so that proper compliance of the
tribunal's order may be ensured.

26. Cost easy.

27. The lower court record may be
remitted back to it for ensuring proper
compliance.
----------
(2020)1ILR 891

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

FAFO No. 473 of 2016

UPSRTC, Bhaisali Road, Depot Meerut
 ...Appellant
Versus
Mohd. Azad & Anr. ...Respondents

Counsel for the Appellant:
Sri Rahul Agarwal, Sri Shantam Madhyan

Counsel for the Respondents:
Sri Bed Kad Mishra, Sri Raghuvansh
Chandra, Sri Ram Jee Saxena

A. Motor Accident Act, 1988 - Disability
and Permanent Disability - Assessment
of loss - Principle to be followed by
Tribunal
-
Disability
refers
to
any
restriction or lack of ability to perform an
activity in the manner considered normal
for a human-being - Permanent disability
refers to the residuary incapacity or loss
of use of some part of the body, found
existing at the end of the period of
treatment
and
recuperation
-
What
requires to be assessed by the Tribunal is
the effect of the permanent disability on
the earning capacity of the injured; and
after assessing the loss of earning
capacity in terms of a percentage of the
income, it has to be quantified in terms of