# United India Insurance Co. Ltd v. Smt. Mamta Rani & Ors

- **Citation:** (2022) 8 ILRA 988
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-19
- **Case number:** First Appeal From Order No. 1699 of 2013
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/united-india-insurance-co-ltd-v-smt-mamta-rani-ors-48957
- **Pages:** 32

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Sections 166 - U.P. Motor Vehicles Rules,
1998 - Rules 220, 220-A(3), 220-A(3) (iii)
& 220-A(6): - Insurers' Appeal - against award
- Cross objection - seeking enhancement of
compensation by Claimant's - denial of accident
8 All. United India Insurance Co. Ltd. Vs. Smt. Mamta Rani & Ors.
989
- deceased's motorcycle was struck and knocked
down on the dusty pavement - Appreciation of
evidence - non-mention of the witness's name in
FIR does not discredit the factum of his
presence - court cannot shut its eyes to the
harsh reality of legal proceedings that follow by
police - held - negligence of the driver of the
offending vehicle is responsible for accident -
thus, finding of tribunal is unexceptionable &
insurer's plea that PW-2 as a planted witness,
who had not seen anything, is not acceptable.
(Para - 19, 20, 28)

(B) Civil Law - Motor Vehicles Act, 1988 -
Section 166 - U.P. Motor Vehicles Rules,
1998 - Rules 220, 220-A(3), 220-A(3) (iii)
& 220-A(6): - Insurers' Appeal against award -
Cross objection for seeking enhancement -
Quantum of compensation - deceased was a
govt. servant - survived by five dependants -
aged about 50 years - there is no objection
about the deceased's monthly emoluments visa-vis- deduction made therefrom on account of
income tax - court, accordingly proceed to
determine the compensation - as per prospects
has been laid down in cases of Pranay Sethi's,
Urmila Shukla's, Smt. Shanti's and in the light of
judgement in case of Jiuti Devi's case and as per
Rules 220-A(3) - claimants are entitled to get
enhanced
compensation
-
compensation
computed
from
Rs.
36,80,22/-
to
Rs.
47,13,900/- with 7% rate of simple interest per
annum - hence, Insurer's appeal dismissed, but,
Cross objection for seeking enhancement is
allowed accordingly.
(Para - 36, 37, 43, 45, 46, 53, 54)

(C) Civil Law - Motor Vehicles Act, 1988
- Section 166 - U.P. Motor Vehicles
Rules, 1998 - Rules 220, 220-A(3), 220A(3) (iii) & 220-A(6): - Insurers' Appeal
against award - Cross objection for seeking
enhancement - Quantum of compensation - in
the light principle acknowledged by the
Supreme Court in case of Kajal Vs Jagdish
Chand & ors. - court can award compensation
more than that claimed - Appeal fails and
dismissed
with
cost
-
cross
objection
preferred by the claimants is allowed.
(Para - 55, 56)

Appeal dismissed with cost but, Cross
objection is allowed. (E-11)
List of Cases cited: -

## Text

_Characters 0–39,879 of 106,804. This is a partial read: ask again with offset=39879 for what follows._

988 INDIAN LAW REPORTS ALLAHABAD SERIES
not passed because claimants are neither
illiterate nor rustic villagers.

37. Recently the Gujarat High Court
in case titled the Oriental Insurance Co.
Ltd. v. Chief Commissioner of Income Tax
(TDS),
R/Special
Civil
Application
No.4800 of 2021 decided on 05.04.2022, it
is held that interest awarded by the tribunal
or appellate court under Section 171 of
Motor Vehicles Act is not taxable under the
Income Tax Act, 1961

38.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunal shall follow the
direction
of
this
Court
as
herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and judgment of A.V. Padma
(supra), the same is to be applied looking to
the facts of each case.

39. In view of the above, both the
appeals are partly allowed. Judgment and
award passed by the Tribunal shall stand
modified to the aforesaid extent. The
respondent-Insurance
Company
shall
deposit the amount of s.1,07,79,826/-
within a period of 12 weeks from today
with interest at the rate of 7.5% from the
date of filing of the claim petition till the
amount is deposited.

40. Record be transmitted to tribunal.

41. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private Ltd. v. Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation is to
safeguard the interest of the claimants. As 8
years have elapsed since occurrence of
accident, the amount be deposited in the
Saving
Account
of
claimants
in
Nationalized Bank. The amount shall be
credited in the said account with without
investment as the case may be.

42. The First Appeal From Order
No.1377 of 2020 of National Insurance
Company Ltd. is partly allowed and the
First Appeal From Order No.1270 of 2020
of claimants is decided, accordingly.

43. We are thankful to learned counsel
for the parties for ably assisting this court
in getting this old appeal disposed of.
----------
(2022) 8 ILRA 988
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2022

BEFORE

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

First Appeal From Order No. 1699 of 2013
connected with
Cross Objection No. 48 of 2021

United India Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Mamta Rani & Ors. ...Respondents

Counsel for the Appellant:
Sri Anubhav Sinha, Sri V.C. Dixit

Counsel for the Respondents:
Sri Yogendra Pal Singh, Sri Dharmendra Kr.
Gupta

(A) Civil Law - Motor Vehicles Act, 1988 -
Sections 166 - U.P. Motor Vehicles Rules,
1998 - Rules 220, 220-A(3), 220-A(3) (iii)
& 220-A(6): - Insurers' Appeal - against award
- Cross objection - seeking enhancement of
compensation by Claimant's - denial of accident
8 All. United India Insurance Co. Ltd. Vs. Smt. Mamta Rani & Ors.
989
- deceased's motorcycle was struck and knocked
down on the dusty pavement - Appreciation of
evidence - non-mention of the witness's name in
FIR does not discredit the factum of his
presence - court cannot shut its eyes to the
harsh reality of legal proceedings that follow by
police - held - negligence of the driver of the
offending vehicle is responsible for accident -
thus, finding of tribunal is unexceptionable &
insurer's plea that PW-2 as a planted witness,
who had not seen anything, is not acceptable.
(Para - 19, 20, 28)

(B) Civil Law - Motor Vehicles Act, 1988 -
Section 166 - U.P. Motor Vehicles Rules,
1998 - Rules 220, 220-A(3), 220-A(3) (iii)
& 220-A(6): - Insurers' Appeal against award -
Cross objection for seeking enhancement -
Quantum of compensation - deceased was a
govt. servant - survived by five dependants -
aged about 50 years - there is no objection
about the deceased's monthly emoluments visa-vis- deduction made therefrom on account of
income tax - court, accordingly proceed to
determine the compensation - as per prospects
has been laid down in cases of Pranay Sethi's,
Urmila Shukla's, Smt. Shanti's and in the light of
judgement in case of Jiuti Devi's case and as per
Rules 220-A(3) - claimants are entitled to get
enhanced
compensation
-
compensation
computed
from
Rs.
36,80,22/-
to
Rs.
47,13,900/- with 7% rate of simple interest per
annum - hence, Insurer's appeal dismissed, but,
Cross objection for seeking enhancement is
allowed accordingly.
(Para - 36, 37, 43, 45, 46, 53, 54)

(C) Civil Law - Motor Vehicles Act, 1988
- Section 166 - U.P. Motor Vehicles
Rules, 1998 - Rules 220, 220-A(3), 220A(3) (iii) & 220-A(6): - Insurers' Appeal
against award - Cross objection for seeking
enhancement - Quantum of compensation - in
the light principle acknowledged by the
Supreme Court in case of Kajal Vs Jagdish
Chand & ors. - court can award compensation
more than that claimed - Appeal fails and
dismissed
with
cost
-
cross
objection
preferred by the claimants is allowed.
(Para - 55, 56)

Appeal dismissed with cost but, Cross
objection is allowed. (E-11)
List of Cases cited: -

1. Dr. Anoop Kumar Bhattacharya & anr. Vs
National Insurance Co. Ltd., (2022) 1 All. L.J. 603

2. Anita Sharma Vs The New India Assurance
Co. Ltd., (2021) 1 SCC 171

3. Sunita & ors. Vs Rajasthan St. Road Transport
Corporation & ors., (2020) 13 SCC 486

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

5. National Insurance Co. Ltd. Vs Rekhaben &
ors., (2017) 13 SCC 547

6. Sarla Verma Vs Delhi Transprot Corporation &
anr., (2009) 6 SCC 121

7. Vimal Kanwar Vs Kishore Dan, (2013) 7 SCC
476

8. Ranjita Seal & ors. Vs Lal Chandra Sharma &
ors., (2022) SCC Online Gau 250

9. Karnataka St. Road Transport Corporation
Bengaluru Vs Pankaja H.S. AIR Online 2020 Kar.
1190

10. New India Assurance Co. Ltd. Vs Urmila
Shukla, 2021 SCC Online SC 822

11. Smt. Shanti & ors. Vs Anil Awasthi @ Anil
Kumar Awasthi & anr., FAFO No. 866 of 2021
connected with Appeals, decided on dated
30.5.2022,

12. Sushil Kumar & ors. Vs M/s. Sampark
Lojastic Pvt. Ltd. & ors., FAFO No. 2581 of 2021,
dated 26.04.2017

13. Jiuti Devi & ors. Vs Manoj Kumar & ors.,
2022 SCC Online All. 46

14. Kajal Vs Jagdish Chand & ors., (2020) 4 SCC
413

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

This First Appeal From Order by the
Insurance Company is directed against a
990 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment
and
award
of
the
Motor
Accidents Claims Tribunal/Special Judge
(S.C./S.T.
Act),
Bulandshahr
dated
21.03.2013,
ordering
the
appellantInsurance Company to pay compensation to
the claimant-respondents in the sum of
₹36,80,222/- together with interest.

2. A cross-objection, being Cross
Objection No. 48 of 2021, has been
preferred
by
the
claimants,
seeking
enhancement of the compensation. The
cross-objection was presented beyond time
by five years and fifty-one days. It was
accompanied by a delay condonation
application. The delay was condoned vide
order dated 20.01.2022 and the crossobjection admitted to hearing.

3. The facts giving rise to this appeal
are that on the 23rd of February, 2011,
Shyamveer
was
proceeding
on
his
motorcycle bearing Registration No. UP14L-2487 from Sikandrabad to Town
Gulawathi, both situate in the district of
Bulandshahr. As he reached a certain Dholi
Pyau near village Sanauta at about 02:00
p.m., a Bolero SUV bearing Registration
No. HR-66/1186, proceeding from the
opposite direction, that is to say, from
Gulawathi to Sikandrabad, driven at a high
speed and negligently in a wayward
fashion, hit Shyamveer's motorcycle head
on. Shyamveer was moving on the left
hand side of the road, more on to its
pavement. The impact caused Shyamveer
to sustain a number of grievous injuries, in
consequence whereof, he died on the spot,
without opportunity for the extension of
medical aid.

4. The deceased is survived by five
dependents,
who
are
the
claimantrespondents to this appeal. They are Smt.
Mamta Rani, widow of the deceased
Shyamveer. She was aged 47 years at the
time of the accident. Atul Kumar and Km.
Nisha Rani are the deceased's son and the
daughter. They were aged 24 and 23 years,
respectively at the time of the accident.
Smt. Mahaviri Devi and Naipal Singh are
the mother and the father of the deceased.
The mother was aged 70 years and the
father 72 years at the time the cause of
action arose.

5. The deceased was employed as an
Assistant Development Officer in Harijan
Samaj Kalyan Department of the State
Government and posted as the Block
Development Officer, Sikandrabad, District
Bulandshahr. He was drawing a monthly
salary
of
₹38,400/-.
The
claimantrespondents prayed that they may be
awarded compensation in the sum of
₹40,45,000/-.

6. Respondent nos. 1 and 2 to the
claim petition, who are respondent nos. 6
and 7 to this appeal, are the driver and the
owner of the offending vehicle. The driver
is Rahul, son of Rajat Singh, whereas the
owner is Randhir Singh, son of Indraveer
Singh. They shall hereinafter be referred to
as 'the driver' and 'the owner' respectively.

7. The driver and the owner filed a
written statement, denying the involvement
of the offending vehicle. It has been
pleaded in Paragraph No. 15 of their
written statement that the driver was
working as such (of the offending vehicle)
and had a valid and effective driving
licence issued in his favour by the
competent Authority at Bulandshahr.

8. It was further stated that at the time
of the accident, the offending vehicle was
insured with respondent no. 3 to the claim
petition, who are an Insurance Company.
8 All. United India Insurance Co. Ltd. Vs. Smt. Mamta Rani & Ors.
991
The particulars of the Insurance Policy with
its number was pleaded and a copy of the
cover note was enclosed with the written
statement. It is the case of the owner and
the driver that if at all liable, it is the
Insurance Company, who are obliged to
satisfy the award.

9. A separate written statement was
put in on behalf of the third respondent to
the claim petition, who are the United India
Insurance
Company
Limited,
Branch
Office near Meerut Private Bus Stand, State
Bank
of
India
Lane,
Bulandshahr,
represented by its Branch Manager. The
Insurance
Company
aforesaid
shall
hereinafter be referred to as 'the insurers'.
The insurers are the appellant here. They in
their written statement said that the driver
of the offending vehicle did not hold a valid
and effective driving license. The claim
petition is bad for non-joinder of necessary
parties. The insurers have also denied the
fact that the deceased was an Assistant
Development Officer with the Harijan
Samaj Kalyan Department, and that he was
posted as a Block Development Officer at
the time of the accident. It was, however,
admitted in Paragraph No. 8 of the insurers'
written statement that the offending vehicle
was insured with them vide Policy No.
22200231090100011601 from the midnight
hour of 25.02.2010 to the midnight hour of
24.02.2011, the policy being issued in the
name of the owner.

10. On the pleadings of parties, the
following issues were framed (translated
into English from Hindi) :

(1) Whether on 23.02.2011, the
accident happened when the deceased,
Shyamveer Singh, proceeding from Town
Sikandrabad to Gulawathi, riding his
motorcycle bearing Registration No. UP14L-2487 at 02:00 p.m., had reached Dholi
Pyau, where a Bolero bearing Registration
No.
HR-66-1186,
proceeding
in
the
opposite direction, driven at a high speed
and negligently, hit the motorcycle, leading
to fatal injuries and consequent death?

(2) Whether on the date of
accident, the Bolero in question was
insured
validly
with
the
Insurance
Company?

(3) Whether on the date of
accident,
the
driver
of
the
vehicle
(offending) had a valid and effective
driving licence?

(4) The amount of compensation,
that the claimants are entitled to receive?"

11. The claimant-respondents, who
shall hereinafter be referred to as 'the
claimants', examined three witnesses in
support of their case. PW-1, Mamta Rani is
the widow of the deceased Shyamveer,
Narendra Singh, who is an eye-witness of
the accident, was examined as PW-2 and
Ashok Kumar Gupta, who is an Accountant
in the Office of the Additional District
Development Officer (Samaj Kalyan),
Bulandshahr, was examined as PW-3, to
prove the deceased's salary. The driver,
Rahul examined himself as DW-1 whereas
on behalf of the insurers, their Investigator,
Laxmi Narain was examined as DW-2.

12.

The
claimants
in
their
documentary evidence filed, through a list
of documents dated 05.12.2011, a certified
copy of the First Information Report1
relating to the crime arising out of the
accident, a copy of the charge-sheet filed
by the Police, a copy of the site-plan (part
of the police papers), a copy of the
postmortem report relating to the deceased
992 INDIAN LAW REPORTS ALLAHABAD SERIES
and the deceased's pay certificate in
original for the month of January, 2011. In
addition, through a list of documents dated
19.01.2012, a photostat copy of the first
page of the service-book relating to the
deceased was filed on behalf of the
claimants.

13. On behalf of the owner and the
driver, three documents were filed through
a list, Paper No. 17 C1. These are a
photostat
copy
of
the
Registration
Certificate of the Bolero SUV bearing
Registration No. HR-66-1186, a photostat
copy of Rahul's driving licence and a
photostat copy of the cover note issued by
the insurers for the Bolero bearing
Registration No. HR-66-1186. Again on
behalf of the owner and the driver, a
certified copy of the certificate of insurance
was filed through list of documents, Paper
No. 25C-1. The insurers, through a list of
documents, Paper No. 56C-1, filed their
Investigator's
investigation
report
(in
original) dated 07.05.2012.

14. Heard Mr. Anubhav Sinha,
learned Counsel on behalf of the insurers in
support of the appeal and Mr. Yogendra Pal
Singh, learned Counsel appearing for the
claimants in opposition. Mr. Yogendra Pal
Singh has been heard on behalf of the
claimants in support of cross-objection and
Mr. Anubhav Sinha in answer on behalf of
the insurers.

15. Mr. Anubhav Sinha, learned
Counsel for the insurers has assailed the
findings of the Tribunal on Issue No.1
vociferously and says that the Tribunal has
ignored from consideration telltale features
in the claimants' evidence, that go to show
that the offending vehicle was never
involved in the accident. He submits that
the FIR was lodged against an unknown
vehicle,
with
no
particulars
thereof
mentioned. Later on, the Bolero SUV
bearing Registration No. HR-66-1186 has
been framed as the offending vehicle in
connivance with the Police and the planted
eye-witness, Narendra Singh, PW-2. It is
argued that PW-2 had seen nothing about
the accident. The witness is not mentioned
in the FIR. It is argued that if Narendra
Singh was present at the time of accident,
there is no reason why his name did not
figure in the FIR and further that the fact
that Narendra Singh did not report the
matter to the Police or did anything to help
the deceased, then a victim of the accident,
falsifies his presence.

16. The learned Counsel for the
insurers has drawn attention of the Court to
the fact that PW-1 has said in answer to a
suggestion in his cross-examination that it
is incorrect to say that the deceased's face
was crushed beyond recognition, whereas
the deceased's wife, Smt. Mamta Rani, PW1 in her cross-examination, has said that the
deceased's face was so badly crushed that it
was difficult to recognize. He submits,
therefore, that the testimony of PW-2 about
the identification of the deceased on the
basis of an information shared by the
witness's brother-in-law about the time and
place of the accident is hard to believe.
Learned
Counsel
for
the
insurers
particularly criticizes that part of the
testimony of PW-2, where he says that on
reaching the deceased's home and seeing
his photograph, he immediately recognized
the deceased. Learned Counsel submits that
this testimony is not worthy of acceptance,
because the deceased's wife, in her crossexamination, has acknowledged the fact
that the deceased's face was crushed
beyond recognition. It is, particularly,
emphasized by the learned Counsel for the
insurers that PW-2 is a got up witness, who
8 All. United India Insurance Co. Ltd. Vs. Smt. Mamta Rani & Ors.
993
has seen nothing, but later on came up with
the registration number of the offending
vehicle that he shared with the Police and
also feigned identifying the deceased and
witnessing the accident.

17. Mr. Yogendra Pal Singh, learned
Counsel for the claimants has supported the
findings of the Tribunal on the foot of the
reasoning that the Tribunal has accepted the
testimony of PW-2 together with other
circumstances, taking a plausible view of
the evidence holistically. He submits that
there is ample evidence to accept the
factum of the accident being caused by the
offending vehicle and the accident being
witnessed by PW-2, who remembered the
registration number of the offending
vehicle, but did not take any step to report
the matter to the Police for the obvious
reason that he did not know the deceased.
Later on, when he learnt about the
deceased's identity and particularly the fact
that he was a friend of his brother-in-law,
he connected the event, the identity of the
victim and the offending vehicle, which he
volunteered to share with the Police.

18. This Court has considered the
submissions of the learned Counsel for
parties on the first issue and perused the
record.

19. It is true that the FIR lodged by the
deceased's son, Atul Kumar, does not
mention the name of PW-2 as a witness of the
accident, but in our opinion, the non-mention
of the witness's name does not discredit the
factum of his presence in the circumstances
obtaining. The witness was a passer-by, who
saw the accident, stopped over for a few
minutes and went away, because he had a
sick aunt to take care of. The first informant
is the son of the deceased, who was not
present at the site of the accident. Admittedly,
the first informant is not an eyewitness. In the
circumstances, the fact that PW-2 was not
mentioned by the informant in his written
information to the Police is a logical and
natural part of the unfolding of events, the
way they did. There is also nothing unnatural
about the conduct of Narendra Singh, PW-2
in not, reporting the accident to the Police
after witnessing it as a passer-by.

20. We cannot shut our eyes to the
harsh reality that reporting even an accident
to the Police is not a pleasant experience
for a man not endowed with some
extraordinary resource or authority. The
legal proceedings that follow after a man
turns
a
first
informant
are
equally
unpleasant and taxing. The natural conduct
of a witness, who sees an accident, is to
eschew and avoid reporting it. It is
circumstances
compelling
or
very
motivating, such as affinity or acquaintance
with the victim, that may impel a witness to
come forward and say what he has seen,
even about an accident. The premise,
therefore, on which Mr. Sinha wants us to
disbelieve the presence of PW-2 are too
mechanical and bookish to accept. The fact
that this witness came forward a little later,
in our opinion, is not the result of design to
produce a planted witness by the claimants.
Rather, it was apparently an accident of a
different kind, where the witness's brotherin-law happened to be a friend of the
deceased and narrated to him the ill-fate of
the deceased. It was the location and the
time of the accident that very logically
reminded the witness of seeing it all. Since
this episode happened on the fourth day
after the accident, the witness's memory
was still fresh. He chose to volunteer.
Therefore, to castigate Narendra Singh as a
planted witness, who had not seen anything
of the accident, as the insurers seek to do, is
not acceptable.
994 INDIAN LAW REPORTS ALLAHABAD SERIES

21. A Division Bench of this Court,
when confronted with an almost identical
stance of the Insurance Company about the
presence of the eyewitness in Dr. Anoop
Kumar Bhattacharya and another v.
National Insurance Company Limited2
held :

37. Let us first deal with the
absence of the name of PW-2 from the
hospital records and the FIR. Does it render
the testimony of PW-2 suspected and liable
to be disbelieved?

38. In Anita Sharma (supra), the
Rajasthan High Court set aside the
judgment
of
the
Tribunal
awarding
compensation to the claimant, inter alia, on
the ground that the eyewitness, the
testimony of whom the Tribunal had relied
on, could not have been believed because
he had failed to report the accident to the
police and because even though he asserted
that he had brought the injured to the
hospital the same was not borne out from
the hospital records. The hospital records
instead indicated that the injured was
brought in by the police. The judgment of
the High Court was assailed before the
Supreme
Court.
Contradicting
the
reasoning of the High Court, the Supreme
Court observed thus:--

"12. It is commonplace for most
people to be hesitant about being involved
in legal proceedings and they therefore do
not volunteer to become witnesses. Hence,
it is highly likely that the name of Ritesh
Pandey or other persons who accompanied
the injured to the hospital did not find
mention in the medical record. There is
nothing on record to suggest that the police
reached the site of the accident or carried
the injured to the hospital. The statement of
AW3, therefore, acquires significance as,
according to him, he brought the injured in
his car to the hospital. Ritesh Pandey
(AW3) acted as a good samaritan and a
responsible citizen, and the High Court
ought not to have disbelieved his testimony
based merely on a conjecture. It is
necessary to reiterate the independence and
benevolence of AW3. Without any personal
interest or motive, he assisted both the
deceased by taking him to the hospital and
later his family by expending time and
effort to depose before the Tribunal.

13. It is quite natural that such a
person who had accompanied the injured to
the hospital for immediate medical aid,
could not have simultaneously gone to the
police station to lodge the FIR. The High
Court ought not to have drawn any adverse
inference against the witness for his failure
to report the matter to Police. Further, as
the police had themselves reached the
hospital upon having received information
about the accident, there was perhaps no
occasion for AW3 to lodge a report once
again to the police at a later stage either.

14. Unfortunately, the approach
of the High Court was not sensitive enough
to appreciate the turn of events at the spot,
or the appellant claimants' hardship in
tracing
witnesses
and
collecting
information for an accident which took
place many hundreds of kilometers away in
an altogether different State. Close to the
facts of the case in hand, this Court in
Parmeshwari v. Amir Chand1, viewed that:

"12. The other ground on which
the High Court dismissed the case was by
way of disbelieving the testimony of Umed
Singh, PW 1. Such disbelief of the High
Court is totally conjectural. Umed Singh is
not related to the appellant but as a good
citizen, Umed Singh extended his help to
8 All. United India Insurance Co. Ltd. Vs. Smt. Mamta Rani & Ors.
995
the appellant by helping her to reach the
doctor's chamber in order to ensure that an
injured woman gets medical treatment. The
evidence of Umed Singh cannot be
disbelieved just because he did not file a
complaint himself. We are constrained to
repeat our observation that the total
approach of the High Court, unfortunately,
was not sensitised enough to appreciate the
plight of the victim.

x x x

15. In a situation of this nature,
the Tribunal has rightly taken a holistic
view of the matter. It was necessary to be
borne in mind that strict proof of an
accident caused by a particular bus in a
particular manner may not be possible to be
done by the claimants. The claimants were
merely to establish their case on the
touchstone of preponderance of probability.
The standard of proof beyond reasonable
doubt could not have been applied."

39. It is clear that the Supreme
Court did not concur with the approach
adopted by the Rajasthan High Court in
discarding the testimony of an eyewitness
on the ground that he did not report the
incident to the police and that his name did
not appear in the hospital records even
though he claimed to have brought the
injured to the hospital.

40. In a telling and insightful
commentary on the general tendencies of
everyday
actors,
the
Supreme
Court
observed that it is very common-place that
people are hesitant to give their details to
the hospitals in cases of accidents for the
fear of getting embroiled in tedious and
cumbersome
legal
proceedings.
The
testimony of a witness, who claims to have
brought the victim of an accident to the
hospital, therefore, does not automatically
become doubtful and suspicious simply on
account of the fact that the concerned
individual's name was missing from the
hospital
records.
In
fact,
such
a
circumstance is highly likely. The Hon'ble
Supreme Court also opined that it is
unrealistic to expect that a person who
decides to stop and help the injured by
taking the injured to the hospital should
also simultaneously go to the police station
and lodge the FIR. Placing reliance on its
judgment in the case of Parmeshwari v.
Amir Chand, reported in (2011) 11 SCC
635, the Supreme Court opined that an eyewitness, who helps the victim of an
accident get to the hospital, acts as a good
Samaritan and cannot be disbelieved
simply because he did not file a complaint
with the police. The decision to discard the
testimony of such a witness cannot be
based solely on conjecture. A holistic view
of the matter must be taken without losing
sight of the distress caused to the victim. It
must be borne in mind that strict proof of
accident is not required and the case of the
victim has to be tested only according to
the
standard
of
preponderance
of
probabilities.

22. This Court, in believing that
Narendra Singh PW-2 was present at the
site and the time of the accident, which he
witnessed, is fortified about the approach to
be adopted in such matters by the remarks
of their Lordships of the Division Bench in
Dr. Anoop Kumar Bhattacharya (supra),
which, in turn, has drawn on the guidance
of the Supreme Court in Anita Sharma v.
The New India Assurance Company
Limited3.

23. The Police, on the other hand,
after a full-fledged investigation in Case
Crime No. 88 of 2011, have filed a charge-
996 INDIAN LAW REPORTS ALLAHABAD SERIES
sheet, citing Narendra Singh as the first
witness of fact. In the cross-examination of
Narendra Singh by the insurers, there is
nothing that figures to discredit the
witness's presence. PW-2 has stuck to his
stand why he moved away after seeing the
accident, but later on came forward upon
coming to know that the deceased was a
friend of his brother-in-law. To a suggestion
by the insurers that he was testifying at the
instance of the claimants, or that he wanted
to secure undue benefit to them, the witness
has
resolutely
denied
the
fact
and
maintained his position that he had seen the
accident. He has also dispelled the
suggestion that he had never seen it
happen. Presence of the witness could be
impeached by the insurers through crossexamination,
which
they
extensively
undertook. The insurers' endeavour to
discredit the presence of PW-2 at the site of
the accident, when the witness took stand
in the dock, has been utterly unsuccessful.
Therefore, this Court has no hesitation to
hold that the presence of PW-2 cannot be
doubted.

24. The other limb of the submission,
that the insurers have canvassed before this
Court, is about the inherent unworthiness of
the testimony of Narendra Singh. The basis
of the submission seems to be the fact that
Narendra Singh could identify the deceased
by a look at his photograph put up at the
mourning site, which is not believable. This
submission is founded on the testimony of
the deceased's wife Smt. Mamta Rani, PW1, who has stated in her cross-examination
that the deceased's face was so badly
crushed that it was difficult to recognise.
No doubt the deceased's wife has said
words to the effect that Mr. Sinha has
emphasized, but, the identification of an
individual, who has met with a fatal
accident, by a witness, is based on broader
things, and not confined only to the facial
features. The date and time of the accident,
the identity of the victim otherwise well
established by his or her gait, broadly seen
by the witness, can and do ensemble to
facilitate the witness accurately identify.
Narendra Singh's presence at the site of the
accident is not in doubt. He had seen the
accident and the victim while he stayed
there for a few minutes, before proceeding
to attend to his ailing aunt. The witness was
cognizant of the broad features of the
victim, but did not know him. Later on,
through his brother-in-law, when he came
to know about the victim's identity with
reference to the date, time and place of the
accident, he could and did correctly
identify. There is nothing so startling or
absurd about the testimony of Narendra
Singh, PW-2 that may impel the Court to
disbelieve the witness in a matter as
inquisitorial in nature as a motor accident
claim and test it by the gruelling standard
that a criminal prosecution must meet.
There is no warrant for the Court to assess
the testimony of the witness even by
standards of an ordinary adversarial civil
cause. The purpose of trial in a motor
accident claim is to ascertain whether an
accident has happened, and where it is a
fatal accident, to ensure that the dependents
of the victim are compensated by the
offending vehicle or its insurers. This is to
be done in a broadly inquisitorial exercise,
where the identity of the offending vehicle
is established with reasonable assurance.
The approach in a mot

25. In this connection, reference may
be made with profit to the guidance of the
Supreme Court in Sunita and others v.
Rajasthan
State
Road
Transport
Corporation and others4, where, their
Lordships were concerned about the
approach that the Court has to adopt in
8 All. United India Insurance Co. Ltd. Vs. Smt. Mamta Rani & Ors.
997
evaluating evidence, while determining the
liability for the accident. In the context of
facts, where the High Court had set aside
the Tribunal's award granting compensation
by holding the witnesses to be unreliable
and insisting on adherence to the best
evidence rule, it was observed :

20. The thrust of the reasoning
given by the High Court rests on the
unreliability of the witnesses presented by
the appellants: first, that the evidence given
by Bhagchand (AD 2) was unreliable
because he was not shown as a witness in
the list of witnesses mentioned in the
charge-sheet filed by the police and that the
said witness could not identify the age of
the pillion rider, Rajulal Khateek. Second,
the said pillion rider himself, Rajulal
Khateek, who was the "best" witness in the
matter, was not presented for examination
by the appellants. The High Court also
relies on the site map (Ext. 3) to record the
finding on the factum of negligence of the
deceased Sitaram in causing the accident
which resulted in his death.

21. We have no hesitation in
observing that such a hypertechnical and
trivial approach of the High Court cannot
be sustained in a case for compensation
under the Act, in connection with a motor
vehicle accident resulting in the death of a
family member. Recently, in Mangla Ram
v. Oriental Insurance Co. Ltd. [Mangla
Ram v. Oriental Insurance Co. Ltd., (2018)
5 SCC 656 : (2018) 3 SCC (Civ) 335 :
(2018) 2 SCC (Cri) 819] (to which one of
us, Khanwilkar, J. was a party), this Court
has restated the position as to the approach
to be adopted in accident claim cases. In
that case, the Court was dealing with a case
of an accident between a motorcycle and a
jeep, where the Tribunal had relied upon
the FIR and charge-sheet, as well as the
accompanying
statements
of
the
complainant and witnesses, to opine that
the police records confirmed the occurrence
of an accident and also the identity of the
offending jeep but the High Court had
overturned [Pratap Singh v. Mangla Ram,
2017 SCC OnLine Raj 3765] that finding
inter alia on the ground that the oral
evidence supporting such a finding had
been discarded by the Tribunal itself and
that reliance solely on the document
forming part of the police record was
insufficient to arrive at such a finding.
Disapproving that approach, this Court,
after adverting to multitude of cases under
the Act, noted as follows: (Mangla Ram
case [Mangla Ram v. Oriental Insurance
Co. Ltd., (2018) 5 SCC 656 : (2018) 3 SCC
(Civ) 335 : (2018) 2 SCC (Cri) 819] , SCC
pp. 667-71, paras 22-25)

"22. The question is: Whether this
approach of the High Court can be
sustained in law? While dealing with a
similar situation, this Court in Bimla Devi
[Bimla Devi v. Himachal RTC, (2009) 13
SCC 530 : (2009) 5 SCC (Civ) 189 : (2010)
1 SCC (Cri) 1101] noted the defence of the
driver and conductor of the bus which inter
alia was to cast a doubt on the police record
indicating that the person standing at the
rear side of the bus, suffered head injury
when the bus was being reversed without
blowing any horn. This Court observed that
while dealing with the claim petition in
terms of Section 166 of the Motor Vehicles
Act, 1988, the Tribunal stricto sensu is not
bound by the pleadings of the parties, its
function is to determine the amount of fair
compensation. In paras 11-15, the Court
observed thus: (SCC pp. 533-34)

''11. While dealing with a claim
petition in terms of Section 166 of the
Motor Vehicles Act, 1988, a Tribunal stricto
998 INDIAN LAW REPORTS ALLAHABAD SERIES
sensu is not bound by the pleadings of the
parties; its function being to determine the
amount of fair compensation in the event
an accident has taken place by reason of
negligence of that driver of a motor
vehicle. It is true that occurrence of an
accident having regard to the provisions
contained in Section 166 of the Act is a sine
qua non for entertaining a claim petition
but that would not mean that despite
evidence to the effect that death of the
claimant's predecessor had taken place by
reason of an accident caused by a motor
vehicle, the same would be ignored only on
the basis of a post-mortem report vis-à-vis
the averments made in a claim petition.

12. The deceased was a constable.
Death took place near a police station. The
post-mortem report clearly suggests that the
deceased died of a brain injury. The place
of accident is not far from the police
station. It is, therefore, difficult to believe
the story of the driver of the bus that he
slept in the bus and in the morning found a
dead body wrapped in a blanket. If the
death of the constable had taken place
earlier, it is wholly unlikely that his dead
body in a small town like Dharampur
would remain undetected throughout the
night particularly when it was lying at a
bus-stand and near a police station. In such
an event, the court can presume that the
police officers themselves should have
taken possession of the dead body.

13. The learned Tribunal, in our
opinion, has rightly proceeded on the basis
that apparently there was absolutely no
reason to falsely implicate Respondents 2
and 3. The claimant was not at the place of
occurrence. She, therefore, might not be
aware of the details as to how the accident
took place but the fact that the first
information report had been lodged in
relation to an accident could not have been
ignored.

14. Some discrepancies in the
evidence of the claimant's witnesses might
have occurred but the core question before
the Tribunal and consequently before the
High Court was as to whether the bus in
question was involved in the accident or
not. For the purpose of determining the said
issue, the Court was required to apply the
principle underlying the burden of proof in
terms of the provisions of Section 106 of
the Evidence Act, 1872 as to whether a
dead body wrapped in a blanket had been
found at the spot at such an early hour,
which was required to be proved by
Respondents 2 and 3.

15. In a situation of this nature,
the Tribunal has rightly taken a holistic
view of the matter. It was necessary to be
borne in mind that strict proof of an
accident caused by a particular bus in a
particular manner may not be possible to be
done by the claimants. The claimants were
merely to establish their case on the
touchstone of preponderance of probability.
The standard of proof beyond reasonable
doubt could not have been applied. For the
said purpose, the High Court should have
taken into consideration the respective
stories set forth by both the parties.'
 (emphasis supplied)

The Court restated the legal
position that the claimants were merely to
establish their case on the touchstone of
preponderance of probability and standard
of proof beyond reasonable doubt cannot
be applied by the Tribunal while dealing
with the motor accident cases. Even in that
case, the view taken by the High Court to
reverse similar findings, recorded by the
Tribunal was set aside.
8 All. United India Insurance Co. Ltd. Vs. Smt. Mamta Rani & Ors.
999

23. Following the enunciation in
Bimla Devi case [Bimla Devi v. Himachal
RTC, (2009) 13 SCC 530 : (2009) 5 SCC
(Civ) 189 : (2010) 1 SCC (Cri) 1101] , this
Court in Parmeshwari v. Amir Chand
[Parmeshwari v. Amir Chand, (2011) 11
SCC 635 : (2011) 4 SCC (Civ) 828 : (2011)
3 SCC (Cri) 605] noted that when filing of
the complaint was not disputed, the
decision of the Tribunal ought not to have
been reversed by the High Court [Amir
Chand v. Parmeshwari, 2009 SCC OnLine
P&H 9302] on the ground that nobody
came from the office of the SSP to prove
the complaint. The Court appreciated the
testimony of the eyewitnesses in paras 12
& 13 and observed thus: (Parmeshwari case
[Parmeshwari v. Amir Chand, (2011) 11
SCC 635 : (2011) 4 SCC (Civ) 828 : (2011)
3 SCC (Cri) 605] , SCC p. 638)

''12. The other ground on which
the High Court dismissed [Amir Chand v.
Parmeshwari, 2009 SCC OnLine P&H
9302] the case was by way of disbelieving
the testimony of Umed Singh, PW 1. Such
disbelief of the High Court is totally
conjectural. Umed Singh is not related to
the appellant but as a good citizen, Umed
Singh extended his help to the appellant by
helping her to reach the doctor's chamber in
order to ensure that an injured woman gets
medical treatment. The evidence of Umed
Singh cannot be disbelieved just because he
did not file a complaint himself. We are
constrained to repeat our observation that
the total approach of the High Court,
unfortunately, was not sensitised enough to
appreciate the plight of the victim.

13. The other so-called reason in
the High Court's order was that as the claim
petition was filed after four months of the
accident, the same is ''a device to grab
money from the insurance company'. This
finding in the absence of any material is
certainly perverse. The High Court appears
to be not cognizant of the principle that in a
road accident claim, the strict principles of
proof in a criminal case are not attracted. ...'

24. It will be useful to advert to
the dictum in N.K.V. Bros. (P) Ltd. v. M.
Karumai Ammal[N.K.V. Bros. (P) Ltd. v.
M. Karumai Ammal, (1980) 3 SCC 457 :
1980 SCC (Cri) 774] , wherein it was
contended by the vehicle owner that the
criminal case in relation to the accident had
ended in acquittal and for which reason the
claim under the Motor Vehicles Act ought
to be rejected.