# U.O.I v. Harish Chandra Tiwari

- **Citation:** (2021) 11 ILRA 1084
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-25
- **Case number:** First Appeal From Order No. 140 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-o-i-v-harish-chandra-tiwari-46510
- **Pages:** 8

## Headnote

A. Civil Law - Railway Accident Claim - The
Railways Act, 1989 - Section 124 A- Railway
11 All. U.O.I. Vs. Harish Chandra Tiwari
1085
Claims Tribunal Act, 1987- Section 16 - Claim
Petition - Compensation - bona fide passenger
-
Ticket
-
no
travelling
ticket
was
recovered/found on the deceased's person -
deceased's ticket was not produced by the
claimant as well - Held - once it is asserted on
affidavit by the claimant that the deceased was
travelling on a valid ticket, the burden of proof
would shift on the Railways and the issue has
to be decided on the basis of attending
circumstances - There is an eye-witness
account about the accident coming from the
grandson of the deceased - possibility of loss of
a small paper ticket is high in the case a person
who dies as a result of a fall from train and
then being crushed under its wheels - Court
affirmed finding of Tribunal that the deceased
was a bona fide passenger on board the train &
that the deceased died in consequence of a fall
that occurred due to a sudden jerk, as the
deceased was emerging from the toilet (Para
11, 12)

B. Railway Claims Tribunal Act, 1987 - Section
16 - Claim Petition - Compensation - Interest -
claimant was held entitled to compensation in
the sum of Rs. 8 lacs, as the accident occurred
prior to 01.01.2017 - Tribunal awarded 9% per
annum from the date of judgment - Held -
Tribunal rightly awarded the higher of the two
amounts
of
compensation,
one
worked
according to the rate applicable on the date of
accident together with the accrued interest, and
the other according to the rate on the date of
award, rightly choosing the higher amount of
compensation - High Court directed interest
shall be payable at the rate of 9% per annum
after expiry of a period of ninety days from the
date of judgment passed by the Tribunal till
realization, if within the aforesaid period of
time, the awarded compensation is not paid to
the claimant or deposited with the Tribunal
(Para 16)

Allowed. (E-5)

Cases Relied on :

1.U.O.I. Vs Rina Devi, (2019) 3 SCC 572

## Text

1084 INDIAN LAW REPORTS ALLAHABAD SERIES
with interest @ 7%, as awarded by the Tribunal,
from the date of filing of claim petition till
realization.

Calculation Chart
Sl.
No
.
Heads
Compensation
awarded
1.
Income-Rs.
5,000/-
P.M.
X 12
Rs. 60,000/- P.A.
2.
Deduction
towards
personal
expenses
in
case
of
Bachelor
50%
3.
Dependency
Rs. 30,000/-
4.
Multiplier as
per age of the
deceased i.e.
20 years
18
5.
Future
Prospect
at
40%
Rs. 12,000/-
6.
Total income
30,000
+
12,000
Rs. 42,000/-
7.
Compensation
Total
=
42,000 X 18
Rs. 7,56,000/-
8.
Loss of Estate Rs. 15,000/-
9.
Loss
of
Funeral
expenses
Rs. 15,000/-
10. Loss
of
Consortium to
both
appellants
Rs.
40,000
+
Rs.
40,000 =Rs. 80,000/-

Total
Compensatio
n
Rs.
8,66,000/-

35. It is made clear that this Court has
modified the judgment and award dated 22.10.2014,
under appeal, passed by the Tribunal, with respect
to the amount awarded by the Tribunal as also that
out of above amount awarded to the appellant No.2,
Priti, sister of the deceased, would be entitled to Rs.
40,000/-, which is the amount awarded to her under
the head of loss of consortium. The Tribunal while
providing the amount in terms of this judgment shall
adjust the amount, if any, already paid/ provided to
the appellants.

36. The appeal is disposed of finally in above
terms.

37. Let records be returned to Court
concerned along with the copy of this judgment for
necessary compliance.
----------
(2021)12ILR A1084
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.11.2021

BEFORE

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

First Appeal From Order No. 140 of 2021

U.O.I. ...Appellant
Versus
Harish Chandra Tiwari ...Respondents

Counsel for the Appellant:
Mahendra Kumar Misra

Counsel for the Respondents:
Dhiraj Chaurasiya, Keshav Ram Chaurasia, Om
Hari Tripathi

A. Civil Law - Railway Accident Claim - The
Railways Act, 1989 - Section 124 A- Railway
11 All. U.O.I. Vs. Harish Chandra Tiwari
1085
Claims Tribunal Act, 1987- Section 16 - Claim
Petition - Compensation - bona fide passenger
-
Ticket
-
no
travelling
ticket
was
recovered/found on the deceased's person -
deceased's ticket was not produced by the
claimant as well - Held - once it is asserted on
affidavit by the claimant that the deceased was
travelling on a valid ticket, the burden of proof
would shift on the Railways and the issue has
to be decided on the basis of attending
circumstances - There is an eye-witness
account about the accident coming from the
grandson of the deceased - possibility of loss of
a small paper ticket is high in the case a person
who dies as a result of a fall from train and
then being crushed under its wheels - Court
affirmed finding of Tribunal that the deceased
was a bona fide passenger on board the train &
that the deceased died in consequence of a fall
that occurred due to a sudden jerk, as the
deceased was emerging from the toilet (Para
11, 12)

B. Railway Claims Tribunal Act, 1987 - Section
16 - Claim Petition - Compensation - Interest -
claimant was held entitled to compensation in
the sum of Rs. 8 lacs, as the accident occurred
prior to 01.01.2017 - Tribunal awarded 9% per
annum from the date of judgment - Held -
Tribunal rightly awarded the higher of the two
amounts
of
compensation,
one
worked
according to the rate applicable on the date of
accident together with the accrued interest, and
the other according to the rate on the date of
award, rightly choosing the higher amount of
compensation - High Court directed interest
shall be payable at the rate of 9% per annum
after expiry of a period of ninety days from the
date of judgment passed by the Tribunal till
realization, if within the aforesaid period of
time, the awarded compensation is not paid to
the claimant or deposited with the Tribunal
(Para 16)

Allowed. (E-5)

Cases Relied on :

1.U.O.I. Vs Rina Devi, (2019) 3 SCC 572

2. National Insurance Com. Vs Balakrishnan & anr.,
(2013) (1) SCC 731

3. U.O.I. through General Manager, Northern Railway
Vs Smt. Gayatri Devi, First Appeal From Order No.
166 of 2018, decided on 14.08.2018. In Gayatri Devi

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

This is an appeal by the Union of India
through
the
General
Manager,
Northern
Railways from a judgment and order of the
Railway Claims Tribunal, Lucknow Bench,
Lucknow, in Case No. OA/II/U/384/2013,
Harish Chandra Tiwari v. Union of India,
awarding
compensation
to
the
claimantrespondent on account of his father's death in a

2. The claimant, Harish Chandra Tiwari,
instituted proceedings under Section 16 of the
Railway Claims Tribunal Act, 1987 with allegations
that on 17.03.2011, his father, Ram Prasad Tiwari,
died in a railway accident, while travelling on board
the Ganga Gomti Express from Lucknow to Prayag.
It was pleaded by the claimant that his father
boarded the Ganga Gomti Express at Lucknow with
Prayag as the destination on a Second Class ticket,
on 17.03.2011. As the train was moving near the Up
Advance Signal at the Lalgopalganj Railway
Station, the deceased suddenly fell off the train. In
consequence of the injuries sustained in the
accident, Ram Prasad Tiwari died. The petitioner
filed a written statement, wholesomely denying the
respondent's claim. The claim was particularly
resisted on the plea that the deceased was neither
travelling on the train in question nor did he suffer
injury in consequence of a railway accident. It was
averred that the claim is baseless and founded on
concocted facts. The petitioner pleaded that the
claim was barred by Section 124A of the Railways
Act, 1989.

3. On the pleadings of parties, the Tribunal
framed the following issues (rendered into
English from Hindi vernacular) :

(i) Whether the deceased was a bona
fide passenger on board the train in question?
1086 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Whether the accident resulting in
the deceased's death fell within the definition of
an unexpected incident within the meaning of
Section 123(c)(ii) read with Section 124A of the
Railways Act, 1989?

(iii) Who are the dependents of the
deceased?

(iv) To what relief is the claimant
entitled?

4. The claimant filed his affidavit in
support of the claim, testifying as A.W.1.
Another affidavit of Sanjeev Kumar was filed,
who deposed as A.W.2. Documentary evidence
comprising photostat copies of the Station
Master's memo, the Panchnama, Police Form
No. 13, Police Form No. 379, the Postmortem
Report, the Final Report put in by the Police and
the Voter ID Card was filed. The petitioner, by
way of documentary evidence, placed a copy of
the
Divisional
Railway
Manager's
report
regarding the accident. Issue nos. 1 and 2 were
decided together by the Tribunal, holding that
the deceased was a bona fide passenger on board
the Ganga Gomti Express train. It was further
held that the deceased died in consequence of a
fall that he had from the train, that occurred due
to a sudden jerk, as the deceased was emerging
from the toilet. The accident occurred on
17.03.2011 at 09:45 p.m. near the Up Advance
Signal of the Lalgopalganj Railway Station. It
was held that there was no evidence about the
deceased sustaining injuries on account of being
run over by a train or a self-inflicted injury or
one sustained as a result of criminal negligence.
Issue Nos. 1 and 2 were decided in favour of the
claimant and against the petitioner. The Tribunal
held that the claimant was the deceased's son,
drawing that inference from the Voter Id Card.
He was held entitled to dependency, in view of
provisions of Section 123B of the Railways Act,
1989. The claimant was held entitled to
compensation in the sum of Rs. 8 lacs, as the
accident occurred prior to 01.01.2017, but, with
the award being pronounced after that date,
where higher of the two compensations would
be that to which the claimant was entitled on the
date of award, compared to his entitlement on
the date of accident with the accrued interest. To
adopt this principle of quantification, the
Tribunal relied on the Supreme Court in Union
of India v. Rina Devi, (2019) 3 SCC 572.

5. Heard Mr. Mahendra Kumar Mishra,
learned Counsel for the petitioner and Mr.
Dhiraj Chaurasai, learned Counsel appearing for
the claimant-respondent.

6. It was strenuously argued before us that
there is no evidence on record to indicate that
the deceased was a bona fide passenger on board
the Ganga Gomti Express on the fateful day and
that he died as a result of a railway accident
while travelling as such. Mr. Mishra invited the
attention of the Court to the fact that the
testimony of the claimant that the deceased was
travelling on board the train in question with a
valid travelling ticket is based on no evidence.
He says that the Tribunal has failed to notice the
fact
that
no
travelling
ticket
was
recovered/found on the deceased's person during
the Panchnama. Also, the deceased's ticket was
not produced by the claimant as well. It has been
pointed out by Mr. Mishra that the claimant's
case was that his father boarded the train in
question on a Second Class railway ticket,
accompanied by Sanjeev Kumar, the claimant's
son. It is then pointed out that though A.W.2
Sanjeev Kumar has said in his testimony that he
was travelling with the deceased on board the
train in question and that he had the travelling
tickets for himself as well as his grandfather, but
there is no pleading in the claim petition
regarding the presence of Sanjeev Kumar with
his grandfather in the train or at the railway
station. Also, there is no evidence of Sanjeev
Kumar's presence at the Lalgopalganj Railway
Station.
11 All. U.O.I. Vs. Harish Chandra Tiwari
1087

7. Learned counsel for the claimantrespondent Mr. Chaursiya, on the other hand,
has repelled the above submissions and urged
that there is no reason to disbelieve the eyewitness account of A.W.2 Sanjeev Kumar, who
is the grandson of the deceased. It is submitted
that so far as non-recovery of the deceased's
travelling ticket from his body at the time of
Panchnama is concerned, the possibility of loss
of a small paper ticket is high in the case a
person who dies as a result of a fall from train
and then being crushed under its wheels. It is
pointed out that the said fact was pleaded in
Column 7 of the claimant's application, where it
is specifically mentioned that the journey ticket
from Lucknow to Prayag railway station was
lost somewhere at the site of the accident, along
with other belongings of the deceased. So far as
this part of the submission of learned counsel for
the appellant is concerned, it must be remarked
that there is no dispute about the fact that the
deceased died as a result of injuries sustained in
a railway accident near Lalgopalganj Railway
Station. The fact whether he was a bona fide
passenger on board train or a man wandering on
the tracks, who was crushed under its wheels, or
still more, an unfortunate man, who cannot be
regarded as a bona fide passenger for travelling
on board the train in question without a valid
travelling ticket, is a matter to be wholesomely
assessed. It has been asserted by Sanjeev Kumar
that he purchased journey tickets for himself and
his grandfather at the Lucknow railway station
to secure a passage from Lucknow to Prayag
railway station. It has been testified by Sanjeev
Kumar in Paragraph 4 that his grandfather
placed the journey ticket in the upper pocket of
his shirt (kurta) which was lost in the accident. It
could not be recovered despite best efforts.

8. This Court has perused the lower court
records, and what we find is that about this
categorical assertion of Sanjeev Kumar in
Paragraph Nos. 3 and 4 of his affidavit, he has
not been cross-examined or contradicted in any
manner by the appellant. The Tribunal has
remarked that the deceased was neither a native
of Lalgopalganj, nor was he employed there.
Thus, according to the Tribunal, he had no
business to be on the railway tracks in
Lalgopalganj, except as a passenger on board
train. The assertion of the deceased's grandson
that he was travelling with his grandfather on a
valid ticket and the fact that the deceased died
on the railway tracks as a result of a fall from a
jerky movement of the train, followed by a crush
injury under its wheels, has a wholesome truth to
it, which the Tribunal has rightly believed. It is
accordingly held that the deceased was a bona
fide passenger on board the train in question,
when he suffered the fatal accident giving rise to
this claim.

9. There is then this contention urged on
behalf of the appellant that the story about
A.W.2 Sanjeev Kumar, being a co-passenger
with his grandfather, is not believable,
inasmuch as, soon after the accident, he
neither gave information to his parents nor the
G.R.P. or the local Police nor reached the site
of accident. As such, his testimony is of no
worth. It has also been argued that the
deceased's son and father of A.W.2, that is to
say, the claimant, reached the spot and
participated in the Panchnama, but there is no
evidence that A.W.2 did anything to establish
his presence on the spot along with his
grandfather. The affidavit of A.W.2 carries a
categorical assertion that after the deceased's
fell off the train, Sanjeev Kumar was left
shell-shocked. He raised an alarm and pulled
the emergency chain to stop the train. The
train did not stop; rather it moved on and
halted at the next scheduled stop, that is to
say, Prayag Railway Station. It is also testified
in the affidavit by A.W.2 that he went to the
G.R.P. Chowki to report the matter, but the
policemen on duty said that the control room
had already sent out that information, and that
the witness should proceed to Lalgopalganj.
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
These assertions in the affidavit have not been
contradicted by the appellant through any kind
of cross-examination or other evidence in
rebuttal.

10. The appellant has largely sought to
challenge the respondent-claimant's case about
the deceased being a victim of a railway accident
while travelling on board train as a bona fide
passenger on the basis of documents, such as the
Station Superintendent's memo dated 17.03.2011,
who has said that he had received information
from gateman Ram Bahadur that an old man,
aged about 70 years, had been crushed under the
wheels of the train near the Up Advance signal at
the Lalgopalganj Railway Station. Besides the
statutory inquiry report of the Divisional Railway
Manager, these documents project the accident to
be a case of death, with the deceased being run
over by the train while moving about the tracks.
This Court must remark that the manner in which
the accident has been described by A.W.2, the
deceased's grandson, inspires confidence and is a
plausible version that coalesces with the
circumstances. It is not unnatural for an old
grandfather to travel along with his grandson. The
stand of A.W.2 that he was shocked to see his
grandfather fall off the train as a result of a jerk as
he was emerging from the toilet is a fact that is, in
no way, fantastic or incredible. The further
assertion by A.W.2 that he attempted to halt the
train by pulling the emergency chain, which did
not work, is also something quite possible. These
are experiences that are commonplace, where
alarm chains installed in railway bogies,
particularly general bogies of the Second Class
unreserved compartment, are often not in
working order. The assertion by A.W.2 that the
train did not halt when he pulled the emergency
chain, but proceeded to Lalgopalganj, is quite a
natural happening. The fact that this information
was conveyed to the Police by A.W.2, who told
witness that it had already been flashed by the
control room and that the witness should proceed
to Lalgopalganj, is also logical.

11. The claimant, on the other hand, has
asserted in his affidavit that he had received
information, at midnight, from sources of the
Police, who conveyed it through the claimant's
neighbours. This version corroborates the
account of A.W.2. The further assertion in the
affidavit of A.W.2 that he set out to the place of
accident along with 8-10 natives of his village is
also a behaviour that is quite logical in the
settings of rural India. The grandson apparently
proceeded from Prayag Railway Station to
Lalgopalganj, after being advised by the Police
there, whereas the claimant-son of the deceased
proceeded from his native village on information
by the Police. These facts, all fit into a chain of
connected circumstances, which speak for
themselves. Not much reliance can be placed on
the report of the Divisional Railway Manager or
the reports of Railway Protection Force or other
communications
between
the
Railway
Authorities, all of which are not based on any
dependable evidence as to how the deceased
landed on the railway tracks at Lalgopalganj.
The Tribunal has rightly held that the deceased
had no business at Lalgopalganj to be about the
tracks there. The Tribunal has believed evidence
about the deceased being a bona fide passenger
on board the train in question and suffering a
fatal railway accident, while travelling as such.
Here, reference may be made to the law about
burden of proof vis à vis the victim being a bona
fide passenger, laid down in Rina Devi (supra).
In Rina Devi the law relating to burden of proof
on this count has been laid down by the Supreme
Court thus :

29. We thus hold that mere presence of
a body on the railway premises will not be
conclusive to hold that injured or deceased was a
bona fide passenger for which claim for
compensation could be maintained. However,
mere absence of ticket with such injured or
deceased will not negative the claim that he was
a bona fide passenger. Initial burden will be on
the claimant which can be discharged by filing
11 All. U.O.I. Vs. Harish Chandra Tiwari
1089
an affidavit of the relevant facts and burden will
then shift on the Railways and the issue can
be decided on the facts shown or the
attending circumstances. This will have to be
dealt with from case to case on the basis of
facts found. The legal position in this regard
will stand explained accordingly.
 (Emphasis by Court)

12. It would, thus, be seen that once it is
asserted on affidavit by the claimant that the
deceased was travelling on a valid ticket, the
burden of proof would shift on the Railways and
the issue has to be decided on the basis of
attending circumstances. There is an eye-witness
account about the accident coming from the
grandson of the deceased. There is no unnatural
inertia or lack of action attributable to A.W.2, on
the basis of which, his presence at the scene of
accident or his presence along with his
grandfather on the fateful journey may be
doubted. The findings of the Tribunal, therefore,
on issues nos. 1 and 2, receive our affirmation.

13. The other point on which the judgment
of the Tribunal has been assailed is about the
rate of interest that has been awarded. It is 9%
per annum from the date of judgment. It is
argued again on the strength of the law laid
down by the Supreme Court in Rina Devi that
compensation cannot carry interest over and
above what is payable on the date of award, that
is to say, Rs. 8 lacs. In this connection, reference
may be made to paragraph 19 of the report in
Rina Devi, where it is held :

19. Accordingly, we conclude that
compensation will be payable as applicable on
the date of the accident with interest as may be
considered reasonable from time to time on the
same pattern as in accident claim cases. If the
amount so calculated is less than the amount
prescribed as on the date of the award of the
Tribunal, the claimant will be entitled to higher
of the two amounts. This order will not affect
the awards which have already become final and
where limitation for challenging such awards
has expired, this order will not by itself be a
ground for condonation of delay. Seeming
conflict in Rathi Menon [Rathi Menon v. Union
of India, (2001) 3 SCC 714, para 30 : 2001 SCC
(Cri) 1311] and Kalandi Charan Sahoo
[Kalandi Charan Sahoo v. South-East Central
Railways, (2019) 12 SCC 387 : 2017 SCC
OnLine SC 1638] stands explained accordingly.
The four-Judge Bench judgment in Pratap
Narain Singh Deo [Pratap Narain Singh Deo v.
Srinivas Sabata, (1976) 1 SCC 289 : 1976 SCC
(L&S) 52] holds the field on the subject and
squarely applies to the present situation.
Compensation as applicable on the date of the
accident has to be given with reasonable interest
and to give effect to the mandate of beneficial
legislation, if compensation as provided on the
date of award of the Tribunal is higher than
unrevised amount with interest, the higher of the
two amounts has to be given.

14. It is submitted that higher of the two
amounts being the revised compensation payable
on the date of award, which is one made after
01.01.2017, whereas the accident occurred prior
to it, no further interest is payable. It is trite that
the Tribunal has awarded the higher of the two
amounts
of
compensation,
one
worked
according to the rate applicable on the date of
accident together with the accrued interest, and
the other according to the rate on the date of
award, rightly choosing the higher amount of
compensation according to the principles in
Rina Devi. The Tribunal, however, has directed
payment of interest at the rate of 9% per annum
on the compensation awarded from the date of
judgment until realization, without providing for
a period of time after expiry whereof and
persisting default by the Railways, interest
would be payable over and above the sum of Rs.
8 lacs. However, this does not mean that the
appellant can pay the compensation awarded
whenever they like, and yet not be liable to pay
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
any interest. The question whether over and
above the sum of Rs.8 lacs interest, if any,
would be payable and reckoned from what date,
fell for consideration of a Division Bench of this
Court in Union of India through General
Manager, Northern Railway v. Smt. Gayatri
Devi, First Appeal From Order No. 166 of
2018, decided on 14.08.2018. In Gayatri Devi
(supra), it was held:

In Rina Devi's case [supra] while
dealing with grant of interest on compensation
amount (issue no.4), the Apex Court held that
interest can be awarded from the date of
accident itself when the liability of the Railway
arises upto the date of payment without any
difference in the stages. The relevant paragraph
reads as under:-

"As already observed, though this
Court in Thazhathe Purayil Sarabi (supra) held
that rate of interest has to be at the rate of 6%
from the date of application till the date of the
award and 9% thereafter and 9% rate of interest
was awarded from the date of application in
Mohamadi (supra), rate of interest has to be
reasonable rate at par with accident claim cases.
We are of the view that in absence of any
specific statutory provision, interest can be
awarded from the date of accident itself when
the liability of the Railways arises upto the date
of payment, without any difference in the stages.
Legal position in this regard is at par with the
cases of accident claims under the Motor
Vehicles Act, 1988. Conflicting views stand
resolved in this manner."

As far as the case at hand is concerned,
in view of the proposition of law as propounded
in Rina Devi's [supra] it is necessary to calculate
the total amount i.e. amount of compensation
plus interest to ascertain whether the amount so
calculated is less than the amount prescribed as
on the date of the award. In the event the amount
of compensation with interest was less than the
amount prescribed on the date of award, then the
amount which is higher is to be paid to the
claimants.

For the reasons aforesaid, we are of
the view that the ends of justice will be secured
by awarding Rs. Eight lac in all as compensation
to the claimants. It may be added that
provisions
for
compensating
monetarily
either under the Railways Act or Motor
Vehicles Act is a beneficial piece of legislation
and the purpose for award of interest is to
put pressure on the relevant person not to
delay in making the payment. In other words,
when any amount is due to a creditor and the
same is not paid by the debtor over a certain
period, the creditor is deprived of the use of
the said amount for the period during which
the amount remains unpaid for which he is
entitled to be compensated by way of
payment of interest. Therefore, in the event
the appellants fails to pay the aforesaid
amount of Rs. Eight lacs within a period of 90
days, then interest @ 9% shall be payable till
the date of actual payment.
 (Emphasis by Court)

15. Going by the principle laid down in
Gayatri Devi, the direction to pay interest on
the compensation awarded ought to be modified
by ordering interest to be payable at the rate of
9% per annum after expiry of a period of ninety
days from the date of judgment till realization.

16. The appeal partly succeeds and stands
allowed in part. The impugned award is
modified to the extent that on the sum of
compensation ordered to be paid by the
Tribunal, interest shall be payable at the rate of
9% per annum after expiry of a period of ninety
days from the date of judgment passed by the
Tribunal till realization, if within the aforesaid
period of time, the awarded compensation is not
paid to the claimant or deposited with the
Tribunal.
11 All. The New India Assurance Co. Ltd. Vs. Mohd. Iliyas & Anr.
1091

17. There shall be no order as to costs.
----------
(2021)12ILR A1091
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.11.2021

BEFORE

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

First Appeal From Order No. 163 of 2001

The New India Assurance Co. Ltd. ...Appellant
Versus
Mohd. Iliyas & Anr. ...Respondents

Counsel for the Appellant:
Anand Mohan, Asit Srivastava

Counsel for the Respondents:
D.K. Agarwal

A. Motor Vehicles Act, 1988 - Claim petition -
comprehensive policy / package policy -
Liability of insurer - comprehensive/package
policy distinct from Act policy or third party
policy - Occupant in car and pillion rider of
scooter/motor
cycle
are
covered
under
comprehensive policy - comprehensive policy /
package policy of two wheeler covers the risk
of the pillion rider as much as it does of the
rider/ insured - Insurer can hardly wriggle out
of their liability to indemnify & satisfy the
award (Para 22, 23 )

B. Motor Vehicles Act, 1988 - Section 166 -
Claim petition - Non registration of FIR -
claimant's failure to lodge an information with
the Police - Effect - claimant entered the
witness-box and proved his case - rider also
proved the factum of accident - After the
claimant and the rider, both testified to the
factum of accident, its time, place and the
manner of occurrence, burden lay upon the
Insurer to rebut by cogent evidence that the
accident
never
happened
in
the
manner
described - mere absence of an FIR would not
shroud an accident under any kind of doubt - It
is well-nigh settled that mere non-registration
of an FIR concerning the accident, would not
be decisive about the accident ever happening
(Para 15, 16 )

Dismissed. (E-5)

Cases Relied on :

1. National Insurance Company Vs Balakrishnan &
anr., (2013) (1) SCC 731

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

1. This is an Appeal by the Insurer from an
award of the Motor Accident Claims Tribunal,
Sitapur, under Section 173 of the Motor
Vehicles Act, 1988. The claim petition, giving
rise to this Appeal, being Motor Accident Claim
Petition no.325 of 1995 was instituted on
25.12.1997 before the District Judge/ Motor
Accident Claims Tribunal, Sitapur by Mohd.
Iliyas, respondent no.1 to this Appeal. Pankaj
Shukla, the second respondent here, and the
New India Assurance Co. Limited, were arrayed
as the two opposite parties to the claim petition.
The New India Assurance Co. Limited is the
appellant here.

2. As facts would show in greater detail,
Pankaj Shukla, respondent no.2 here, was
operating the motor scooter, with whom
respondent no.1, Mohd. Iliyas, the claimant was
a pillion rider, when the vehicle met with the
accident, giving rise to this claim. The claimantrespondent no.1 sustained serious injuries in the
accident and claimed compensation under
various heads, which has been granted by the
Tribunal vide the award impugned. Since the
appellant was the Insurer, who had insured the
two wheeler that the two respondents were
riding, they have been ordered to indemnify and
satisfy the award. That is what has led the
Insurance Company to prefer the present
Appeal.

3. Mohd. Iliyas, the claimant-respondent
no.1, shall hereinafter be referred to as 'the