Cholamandlam Ms General Insurance Company Ltd.Lucknow Vs Smt. Savitri Devi and Ors.

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Neutral Citation No. - 2025:AHC-LKO:37359

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Court No. - 8

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Case :- FIRST APPEAL FROM ORDER No. - 357 of 2018

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Appellant :- Cholamandlam Ms General Insurance Company Ltd.Lucknow Respondent :- Smt. Savitri Devi And Ors. Counsel for Appellant :- Mahendra Kumar Mishra Counsel for Respondent :- Satish Kumar

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Hon'ble Jaspreet Singh, J.

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Heard Shri Mahendra Kumar Mishra, learned counsel for the appellant and Shri Satish Kumar learned counsel appearing for the claimantsrespondents no.1 to 4. None has put in appearance on behalf of the respondents no.5 and 6. The record indicates that vide office report dated 23.10.2018 service on the respondents no.5 and 6 was deemed sufficient.

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The instant appeal has been preferred under Section 173 of the Motor Vehicles Act 1988 against the impugned judgment and award dated 09.02.2018 passed in Claim Petition No.324 of 2013 wherein in a death case the Tribunal has awarded a sum of Rs.19,08,190/- alongwith 7% interest in favour of the claimant-respondents no.1 to 4.

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Briefly the facts giving rise to the instant appeal are as under:-

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3.1. On 02.05.2013 at around 7.00 P.M. Shyam Narain Tiwari (deceased) and his son Devendra Tiwari were returning home on their T.V.S. Moped. As soon as they reached near Khandoospur and were near the house, a tractor bearing number U P 44 S-9304, which was being driven rashly and negligently, hit the moped. As a consequence, Shyam Narain Tiwari sustained grievous injuries and he expired. An F.I.R. in respect of the said incident was lodged on 09.05.2013 and after investigation, a chargesheet was filed on 07.06.2013.

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3.2. The claim petition bearing No.324 of 2013 came to be filed in the month of September, 2013 claiming compensation for the death of Shyam Narain Tiwari.

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3.3 The claim petition came to be contested by the owner and the driver who had filed their joint written statement dated 07.03.2014, wherein the occurrence of the accident was denied. However, it was further stated that in so far as Tractor number U.P. 44 S-9304 is concerned, the same was duly insured with the Cholamandlam M. S. General Insurance Company Limited and the driver of the Tractor also had a valid and a subsisting driving license. It was further stated that though the compensation sought was inflated but nevertheless even if the award is made, it ought to may be against the Insurance Company as the Tractor was duly insured.

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3.4 The Insurance Company also filed their separate written statement and they denied that the vehicle number U.P. 44 S-9304, a, Tractor with Trolley was not insured. They had pleaded their general defence that unless and until it is proved that the said Tractor was being plied in terms of the policy conditions, the Insurance Company cannot be saddled with the burden of the compensation and in such circumstances, it would be the owner of the vehicle who would be liable for the compensation.

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Upon exchange of the pleadings, the Tribunal framed five issues. Parties led their evidences and thereafter the Tribunal found that the accident had occurred on account of rash and negligent driving of the Tractor bearing number U.P. 44 S-9304. It also recorded a finding that the Tractor was duly insured and the driver had a valid and a subsisting license. It went on to assess the compensation and thereafter awarded a total sum of Rs.19,08,190

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alongwith 7% vide award dated 09.02.2018 which is under challenge in this appeal.

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5 . Shri Mishra, learned counsel for the Insurance Company has vehemently urged that the Tribunal was indifferent to the material available on record; inasmuch as the F.I.R. of the incident lodged on 09.05.2013 by Devendra Tiwari wherein the claimant had clearly stated in the F.I.R. that the accident occurred with a Tractor which was of the brand 'Swaraj' and it was being driven by Pahari. No registration number of the Tractor was disclosed in the F.I.R. However, when the claim petition came to be filed in September 2013, it is at that point of time that the claimants stated that the Tractor involved was having registration number U.P. 44 S-9304 which was of 'Taffee' brand and it was being driven by Nesar Ahmad.

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The crux of the submission of the counsel for the appellant is that there was a complete reversal of the stand which was indicated in the F.I.R. to the one stated in the claim petition which clearly indicated that the aforesaid vehicle was being unnecessarily dragged for seeking compensation. It is also urged that theory of the driver was also impvoed inasmuch as earlier it was mentioned that it was being driven by Pahari and then it was stated that it was being driven by Nesar Ahmad and perhaps the owner and the driver were in collusion with the claimants and in such circumstances where the occurrence of the accident itself was doubtful especially noticing the details as mentioned in the F.I.R. vis-a-vis the averments made in the claim petition but this aspect has not been appropriately considered by the Tribunal rather it has been brushed aside by a cursory finding and the same cannot be sustained in law.

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The other limb of the submission of the learned counsel for the appellant is that even if at all it is considered that the accident occurred with the vehicle in question i.e. U.P. 44 S-9304 but the fact remains that the license of the driver namely Nesar Ahmad was only for the purposes of a Tractor and there was ample evidence available on record to indicate that the said Tractor was being plied for commercial purposes as it had the Trolley, which was not insured and the said Trolley was being used to carry bricks.

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The crux of the submission is that the Tractor was not being used for agricultural purposes and that patently was a violation of the policy condition and in these circumstance the award could not be saddled on the Insurance Company.

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Learned counsel for the claimants-respondents has supported the award and it has been submitted that the respondent no.3, son of the deceased, was an eye witness who had clearly indicated the foundational fact regarding the occurrence of the accident and the death of his father in the accident was proved. It was not disputed that the Tractor was not involved or that in the accident in question Shyam Narain Tiwari did not die on account of the accident between the moped and the Tractor.

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It is urged that at the time when the F.I.R. was lodged certain facts were not cleare, however, there were two important facts which were mentioned in the F.I.R. that the accident occurred with the Tractor wherein Shyam Narain Tiwari expired and that it was being driven by the driver.

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It is urged that when the said eye witness was cross-examined, he clearly gave an answer clearly indicating that the said witness was present at the site and his deposition confirmed the occurrence. In so far as minor

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discrepancies in the statement is concerned or a difference in the manner of narration of facts in the F.I.R. vis-a-vis the claim petition are concerned they were insignificant and it was not of such nature which could cast a cloud over the entire factual matrix.

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It is further urged that in so far as the aforesaid plea as raised by the Insurance Company is concerned, the same could have at best been taken by the owner and the driver, who were joint tort feasors. However, they did not take any such plea except a bland denial of the occurrence of accident was urged that neither the driver was examined as a witness who could have been the best person to indicate the true and correct facts which could put the statement of the claimants under some doubt but in absence of producing the best witness neither the owner nor the Insurance Company who steps into the shoes of the owner can improve or take a better case than that was taken by the principle i.e. owner of the vehicle. In such circumstances, it is urged that the aforesaid appeal deserves to be dismissed.

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The Court has considered the rival submissions and also perused the material on record.

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Apparently, the only point for determination which is involved in the instant the appeal as to whether there was ample material for the Tribunal to hold that the Tractor bearing number U.P. 44 S-9304 was involved in the accident. As an off shoot,, it is also to be ascertained as to whether the Tractor was being plied in accordance with the policy condition so as to determine as to who was the responsible for paying the compensation.

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Considering the first aspect of the matter and before proceedings further, it will be relevant to notice the observations of the Apex Court in the

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case of Sunita and others Vs. Rajasthan State Road Transportation Corporation and another (20) 13 SCC 486 wherein the Apex Court has clearly delineated the manner in which the claim petitions have to be considered. The relevant portion reads as under:-

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"11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto 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 postmortem report vis-a-vis the averments made in a claim petition.

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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.

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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.”

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(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.

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Following the enunciation in Bimla Devi case, this Court in Parmeshwari vs. Amir Chand¹ 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 on the ground that nobody came from the office of the SSP to prove the complaint. The Court appreciated 7 (2011) 11 SCC 635 21 the testimony of the eyewitnesses in paras 12 & 13 and observed thus: (Parmeshwari case, SCC p. 638)

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“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

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1 (2011) 11 SCC 635

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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.

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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. …”

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It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal2, 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. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in para 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus: (SCC pp. 458-59)

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“3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take 8 (1980) 3 SCC 457 special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider nofault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard.”

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25. In Dulcina Fernandes3, this Court examined similar situation where the evidence of claimant’s eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning

2 (1980) 3 SCC 457

3 (2013) 10 SCC 646

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the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi. In paras 8 & 9 of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta4, has been adverted to as under: (Dulcina Fernandes case, SCC p. 650)

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“8. In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10)

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‘10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.

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(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. …

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(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.’

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The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, SCC p. 519)

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‘10. … We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.’”

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In para 10 of Dulcina Fernandes, the Court opined that nonexamination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability.”

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"22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases."

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4 (2011) 10 SCC 509

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" 38. Reverting to the question of adequacy of compensation amount determined by the Tribunal, the appellants have not assailed the order of the High Court rejecting their appeal. Further, in their appeal before the High Court (SBCMA No. 581 of 2017), the limited grievance was about deduction of income tax from the calculated income. That ground is unsustainable in light of the decision in National Insurance Co. Ltd. v. Pranay Sethi [ National Insurance Co. Ltd. v. Pranay Sethi , (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . We cannot permit the appellants to widen the scope in the present appeal, much less pray for enhanced compensation. We are instead inclined to restore the award passed by the Tribunal as it has determined the just compensation amount, keeping in mind all the relevant parameters including the apportionment thereof between the family members of the deceased. Upholding that award would be doing complete justice. "

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From the perusal of the aforesaid, it would be clear that in so far as the claim petitions are concerned, they are to be decided on the basis of preponderance of probabilities and the standard of proof is not so strict, which is applicable to criminal matters, where the commissioning of offence is to be proved beyond reasonable doubt.

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Now, on the touch stone of the aforesaid principles, if the material on record is seen, it would indicate that F.I.R. is merely an information to the police. There might be certain discrepancies relating to the brand of the tractor but the fact remains that it was clearly stated in the F.I.R. that the accidents occurred with a tractor. The police in pursuance of the said F.I.R. had made investigation and it found that the Tractor bearing number U.P. 44 S-9304 was prima facie involved and the said tractor was being driven by Nesar Ahmad. In light of the material collected during investigation the chargesheet was filed and it is not disputed by the learned counsel for the appellant that there is no finding given by the criminal court to indicate that the said Tractor or the driver was not involved in the accident at all.

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It is also to be seen that the claim petition came to be filed in the month of September 2013 and in the petition itself sufficient particulars

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where given regarding the vehicle number the person who was driving and the name of the owner of vehicle. In so far as the claim petition is concerned, the same came to be contested and in light of the written statement filed by the owner and the driver jointly, who made a bald denial of the accident and the involvement of the Tractor but the best person who could have dispelled the aforesaid doubt was the driver, who was never examined to establish that the offending Tractor was not involved or was not being driven by Nesar Ahmad or that the accident did not occur with the Tractor in question. As far as the plea of collusion is concerned, suffice to say neither there are any pleadings nor proof of the same, hence, it pales into insignificance.

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Taking note of the aforesaid including the statement of the another eye witness, namely, Sanjeev Kumar who also explained the manner in which the accident occurred, the foundational facts required to determine the negligence and the compensation were duly established and the Tribunal has considered the aforesaid evidences and recorded its finding which in the estimation of this Court cannot be held to be perverse or arbitrary. In view thereof, the first submission raised by the counsel for the Insurance Company does not find favour with the Court.

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In so far as the second submission regarding who is to shoulder the liability of the award is concerned, it is apparent from the material available on record that the Tractor bearing number U.P. 44 S-9304 was insured with the appellant company. The insurance was valid for the period when the accident occurred i.e. on 02.05.2013 and it was being driven by Nesar Ahmad who was having a valid license. The only issue to be considered in the aforesaid backdrop is whether the Tractor was being plied in accordance

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with the policy conditions. There is material on record including the evidences that the Tractor in question was carrying bricks which apparently prima facie cannot be considered to be agricultural activity. There is nothing on record to indicate that the Tractor driver did not have a license. His license has been placed on record which entitles him to drive a Tractor and the same was also valid on the date when the said accident occurred i.e. on 02.05.2013.

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In view of the aforesaid, this Court does not find that there is any patent illegality in so far as the finding recorded by the Tribunal is concerned that the Tractor in question was duly insured and that the driver was holding a valid and a subsisting license.

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Be that as it may, since the issue that the said Tractor was being utilized for carrying bricks which cannot be considered as an agricultural activity, accordingly to that extent the Tractor was being plied against the policy conditions. In such circumstances, it is always open for the appellant Insurance Company to pay the awarded sum and then recover the same from the owner of the offending Tractor and this aspect ought to have been considered by the Tribunal while passing the award dated 09.02.2018.

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Subject to the aforesaid observations, this Court finds that all other findings recorded by the Tribunal are sound and based on record and do not require any interference.

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Consequently, the appeal is partly allowed . The award dated 09.02.2018 passed in Claim Petition No.324 of 2013 is affirmed subject to the fact that the amount as awarded by the Tribunal shall first be paid to the claimants by the Insurance Company who shall be at liberty for recovering

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the same from the owner of the offending Tractor number U.P. 44 S-9304 in accordance with law. Costs are made easy.

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Any amount deposited by the appellant before this Court shall also be remitted to the Tribunal concerned to be disbursed to the claimants in accordance with the award and in case of any shortfall, the same shall also be made good by the appellant and payable to the claimants within six weeks from today.

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The record of the Motor Accident Claims Tribunal be returned forthwith.

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Order Dated: -02.07.2025

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ank/-

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Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench

Cholamandlam Ms General Insurance Company Ltd.Lucknow v. Smt. Savitri Devi and Ors.

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Cholamandlam Ms General Insurance Company Ltd.Lucknow v. Smt. Savitri Devi and Ors.

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