# The Oriental Insurance Company Ltd v. Smt. Kallo & Ors

- **Citation:** (2023) 2 ILRA 225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-06
- **Case number:** FAFO No. 637 of 2005
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-company-ltd-v-smt-kallo-ors-49643
- **Pages:** 4

## Headnote

Compensation Act,1923-Section 30-just
compensation-fatal
accident-substantial
question of law-whether the person of 61
years of age could be appointed as driver
or not-age factor is nowhere described in
the Act that person above 60 years could
not
have
employed
as
driver-driving
licence having been expired has not been
proved cogently by Insurance companythe High Court cannot enter into the arena
of facts unless they are proved to be
perverse-the
rate
of
interest
after
amendment in Act,1923 is 12%-both the
issue raised is answered against the
insurance company.(Para 1 to 12)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

2 All. The Oriental Insurance Company Ltd. Vs. Smt. Kalloo & Ors.
225
judicial confession should be corroborated by
some other material. [Vide Thimma and
Thimma Raju v. State of Mysore [(1970) 2
SCC 105 : 1970 SCC (Cri) 320] , Mulk Raj
v. State of U.P. [AIR 1959 SC 902 : 1959 Cri
LJ 1219] , Sivakumar v. State [(2006) 1 SCC
714 : (2006) 1 SCC (Cri) 470] (SCC paras 40
and 41 : AIR paras 41 and 42), Shiva Karam
Payaswami Tewari v. State of Maharashtra
[(2009) 11 SCC 262 : (2009) 3 SCC (Cri)
1320] and Mohd. Azad v. State of W.B.
[(2008) 15 SCC 449 : (2009) 3 SCC (Cri)
1082] ]""

84. It is well settled that conviction
can be based on a voluntarily confession but the
rule of prudence requires that wherever possible
it should be corroborated by independent
evidence. Extra judicial confession of accused
need not in all cases be corroborated. In Madan
Gopal Kakkad v. Naval Dubey and Another,
(1992) 3 SCC 204, this Court after referring to
Piara Singh and Others v. State of Punjab,
(1977) 4 SCC 452, held that the law does not
require that the evidence of an extra judicial
confession should in all cases be corroborated.
The rule of prudence does not require that each
and every circumstance mentioned in the
confession
must
be
separately
and
independently corroborated.

85. The sum and substance of the
aforesaid is that an extra judicial confession by
its very nature is rather a weak type of evidence
and requires appreciation with great deal of care
and caution. Where an extra judicial confession
is surrounded by suspicious circumstances, its
credibility becomes doubtful and it loses its
importance like the case in hand. The Courts
generally look for an independent reliable
corroboration before placing any reliance upon
an extra judicial confession."

26. From the facts of the present case and
the law laid down by various Courts, it is
apparent that in the present case there is hardly
any legally admissible evidence against the
appellants and we have no hesitation in holding
that the prosecution has failed to prove the
charges beyond reasonable doubt for which the
accused-appellants were tried and therefore, the
appellants are entitled to the benefit of doubt.

27. We, therefore, have no hesitation in
rejecting the reference for affirmation of the
death sentence and in allowing the appeal of
the appellants against the order of their
conviction and sentence. The appeal of the
appellants is allowed. The reference sent by
the trial court to confirm the death penalty is
rejected. The judgment and order of the trial
court dated 10.1.2020 is set aside. The
appellants are acquitted of all the charges for
which they have been tried and convicted.
The appellants shall be released from jail
forthwith, unless wanted in any other case,
subject to compliance of the provisions of
Section 437-A Cr.P.C. to the satisfaction of
the trial court.

28. Let a copy of this order along with the
record of the trial court be sent to the court
below for information and compliance.
----------
(2023) 2 ILRA 225
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

FAFO No. 637 of 2005
And
FAFO No. 643 of 2005

The Oriental Insurance Company Ltd.
 ...Appellant
Versus
Smt. Kallo & Ors. ...Respondents

Counsel for the Appellant:
Sri Mithilesh Kumar Tiwari
226 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
Sri Achintya Kumar

A.
Accident
Claim-Workmen's
Compensation Act,1923-Section 30-just
compensation-fatal
accident-substantial
question of law-whether the person of 61
years of age could be appointed as driver
or not-age factor is nowhere described in
the Act that person above 60 years could
not
have
employed
as
driver-driving
licence having been expired has not been
proved cogently by Insurance companythe High Court cannot enter into the arena
of facts unless they are proved to be
perverse-the
rate
of
interest
after
amendment in Act,1923 is 12%-both the
issue raised is answered against the
insurance company.(Para 1 to 12)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Oriental Ins. Co. Vs Siby Geoge& ors. (2012)
4 T.A.C. 4 SC

2. New India Assr. Co. Ltd. Vs Kamla & ors..

3. Oriental Ins.Co. Ltd. Vs Poonam Kesarwani &
ors. (2008) LawSuit (All) 1557

4. National Ins. Co. Ltd. Vs Jugal Kishore & ors.
(1988) AIR SC 719

5. Mayan Vs Mustafa & anr. (2022) ACJ 524

6. Salim Vs New India Assr. Co. Ltd. & anr.
(2022) ACJ 526

7. North East Karnataka Road Trans. Corpn Vs
Smt. Sujatha Civil Appeal No. 7470 of 2009

8. Golla Rajanna Etc Vs Div.Mgr. & anr. (2017) 1
TAC 259

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Shri Mithilesh Kumar Tiwari,
learned counsel appearing for the appellant and
Shri Achintya Kumar, learned counsel for the
respondents-original claimants. None appeared
for the owner.

2. Both these appeals arise out of same
incident in which one person had died and one
person sustained injuries. First Appeal From
Order No. 637 of 2005 arises from claim
petition filed by the claimant/heir of the
deceased whereas First Appeal From Order No.
643 of 2005 arises from claim petition filed by
the injured-claimant.

3. It is submitted that the deceased was
aged about 61 years at the time of accident and
was being paid about Rs. 4,000/- per month. It
is submitted by the learned counsel for the
appellant that it was urged before the learned
Commissioner that the person of 61 years of
age could not have been employed as a driver.
Moreover, his driving license had expired on
26.01.2002 and, therefore, also the Insurance
Company could not have been saddled with
liability. The Commissioner awarded Rs.
2,27,540/- to the heir of the deceased and
Rs.3,18,772.80 to injured-claimant, whereas,
the claim petitions were for Rs. 2,00,000/- each.
It is further submitted that the rate of interest
would be 5% to 6% and the Commissioner has
ignored the said fact. It is submitted that there is
no independent witnesses who had deposed
whether the accident occurred due to the rash
and negligence driving of the other vehicle.
Lastly, it is submitted that the learned
Commissioner has ignored the fact that the
claimants had failed to prove that the deceased
was under the employment of opposite party
no.1.

4. The substantial questions of law
raised by the Insurance Company are as
follows:

"1.
Whether,
the
Learned
Commissioner has jurisdiction to award the
2 All. The Oriental Insurance Company Ltd. Vs. Smt. Kalloo & Ors.
227
compensation Rs. 2,27,540/- against the
appellant though the claimants have
claimed the amount of compensation only
Rs. 2,00,000/- in their claim petition?

2. Whether, without giving notice
under Section 10 of the Workmen's
Compensation Act, 1923 to the opp. parties
before filing of the claim petition the
interest of 12% per year can be awarded
against the appellant, Oriental Insurance
Company.

3. Whether, the driver of 61 years
old is workman under the Workmen's
Compensation Act, 1923.

4. Whether, the grant of the
amount of compensation of Rs. 2,27,540/-
is sustainable under the law, without giving
findings of calculation."

5. While admitting these appeals, the
Division Bench did not formulate any
questions of law as required under Section
30 of the Workmen's Compensation Act,
1923 (hereinafter referred to as 'Act, 1923').
Be that as it may, it would be fruitful for
this Court to deal with the questions of law
as raised by the Insurance Company.

6. Before this Court deals with any
other issue Question No. 2 which is raised
is answered against the Insurance Company
in view of the decision of the Apex Court
in Oriental Insurance Company Vs. Siby
George and Others, 2012 (4) T.A.C. 4
(S.C.). The rate of interest after amendment
in Act, 1923, is 12%.

7. As far as Question No.1 is
concerned, it has been held by the Apex
Court that as far as beneficial piece of
legislation are concerned, the Courts can
grant what is known as just compensation,
if the same works out as per the formula
under the Act, 1923 which in this case has
been
applied
properly
by
the
Commissioner. As far as the penalty is
concerned, it was what is known as
subjective penalty and, therefore also, it
does not need any interference of this
Court.

8. This takes this Court to the last
question whether the person of 61 years of
age could be appointed as driver or not.
Just because the Investigating Officer has
put in investigating report as he was aged
about 61 years 47 days, will not make him
a non-employee as the age factor is
nowhere described in the Workmen's
Compensation Act that person above 60
years of age could not have employed as a
driver. Nothing has been brought by the
Insurance Company to rebut this factual
data that he was employed by the owner.

9. This takes this Court to the fact that
the license had expired much prior to the
date of accident. The driving license having
been expired has not been proved cogently
by the Insurance Company. In the light of
the judgment in Oriental Insurance
Company
Limited
Vs.
Poonam
Kesarwani and others, 2008 LawSuit
(All) 1557, when it was not proved by the
Insurance Company that there was breach
of policy conditions, the appeal cannot
succeed. On the contrary, the Insurance
Company has not produced the policy,
hence, an adverse inference is drawn
against the Insurance Company as in view
of the the decision of the Apex Court in
National Insurance Company Ltd. Vs.
Jugal Kishore and others, AIR 1988 SC
719, it was bounden duty of the Insurance
Company to produce insurance policy.

10. In North East Karnataka Road
Transport Corporation Vs. Smt. Sujatha
decided on 2.11.2018, Golla Rajanna Etc.
Etc.
Vs.
Divisional
Manager
and
228 INDIAN LAW REPORTS ALLAHABAD SERIES
Another, 2017 (1) TAC 259 (SC) &
Mayan vs. Mustafa and another, 2022
ACJ 524 also, the Apex Court has held that
under
Section
30
of
Workmen
Compensation Act, the High Court cannot
enter into the arena of facts unless they are
proved to be perverse and the Court cannot
interfere unless there is a question of law
involved. The decision in Salim vs. New
India Assurance. Co. Ltd. and another,
2022 ACJ 526 also will not permit this
Court to interfere with the well reasoned
judgment of learned Commissioner.

11. In view of the above, both these
appeals fail and stand dismissed.

12. The amount kept in fixed deposit
be disbursed to the claimants forthwith.
----------
(2023) 2 ILRA 228
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2023

BEFORE

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

FAFO No. 1111 of 2019
With
FAFO No. 2886 of 2011

Preetam Singh ...Defendant/Appellant
Versus
Smt. Urmila Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Ram Singh

Counsel for the Respondents:
Deepali Srivastava Sinha, Sri Amit Kumar
Sinha, Sri Siddharth Jaiswal, Sri Vidya Kant
Shukla

A. Civil Law - Motor Vehicles Act, 1988Section 168-Compensation-determination
of income of deceased-deceased was aged
about 25 years and he had tea shopdocumented records of his income cannot
be expected-For a person whose age
below 40 years, Rule 220-A(3) prescribes
50% to be added to his income towards
future prospects-the tribunal considered
her income Rs. 4500 per month but has
not granted future loss of income-the
deceased
was
survived
by
four
dependents-Total compensation would be
Rs. 11,22,000/- and rate of interest would
be 7% per annum.(Para 1 to 36)

The appeal is partly allowed. (E-6)

List of Cases cited:
1. Smt. Dulara & ors. Vs U.P.S.R.T.C thru Reg.
Mgr. & anr.. F.A.F.O. No. 2887 of 2011

2. OIC Ltd. Vs Smt. Shashi Devi & ors. (2015)
SCC Online All 8594

3. Sarla Verma (Smt.) Vs DTC & anr. (2009) 6
SCC 121

4. NIC Vs Pranay Sethi & ors.(2017) 16 SCC 680

5. New India Assr. Co. Ltd. Vs Urmila Shukla &
ors. (2021) SCC OnLine SC 822

6. Sushil Kumar & ors. Vs M/s Sampark logistic
Pvt Ltd & ors. (2017) 35 LCD 1311

7. Magma Gen. Ins. Co. Ltd. Vs Nanu Ram
@Chuhru Ram & ors.(2018) 18 SCC 130

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

1. This judgement will dispose of
FAFO No. 1111 of 2019 and FAFO No.
2886 of 2011.

2. Both the appeals relate to the same
accident and arise out of the same
impugned judgment and award dated
24.02.2011 passed by the Motor Accident
Claims Tribunal / Additional District
Judge, Court No. 14, Allahabad rendered in
MACP No. 657 of 2008. Accordingly, both