Smt. Sunita Tiwari and others v. Ahmedabad Bengal Roadways Private Limited and others, by means o

Division Bench of this Court in First Appeal From Order No. 956 of 2013; Parashuram Pal and others vs. Ram Lakhan and another, Gopal, Krishnaji Ketkar vs. Mahomed Haji Latif and others; AIR 1968 SC 1413, Surender Kumar Arora and another 4 vs. Manoj Bisla and others; (2012) 4 SCC 552, Shriram General Insurance Company Limited vs. Smt. Hem Lata and others; 2021 (2) T.A.C. 366 (All.) and Oriental Insurance Company Limited vs. Premlata Shukla and others; 2007 (3) T.A.C. 11 (S.C.)

6. Per contra, learned counsel for the claimant-respondent nos. 1 to 3 vehemently opposing the submissions of learned counsel for the appellant submits that there is no contradiction in evidence of P.W. 1, 2 and 3 and rash and negligent driving of the offending truck has been proved by them and nothing could be extracted from them, which may create any doubt about their evidence. He further submits that the driver of the Maruti 800 Car was impleaded and he has also been produced in evidence as P.W. 2, who has proved the accident. The issue of contributory negligence of driver of Maruti 800 Car was framed as Issue No. 7 and the same has been dealt with by the learned tribunal and the learned tribunal found that there was no contributory negligence of the driver of the Maruti 800 Car. Since the driver of the truck had died, therefore, dead was written against his name and non-substitution would not make any difference as the vehicle was insured and the award is to be satisfied by the appellant- 5 Insurance Company. Even otherwise no objection to the application for deleting the name of the driver of the truck was filed by anybody. He further submits that the technical report of the truck prepared during investigation cannot be relied by the appellant-Insurance Company without being proved, particularly when the rash and negligent driving of the driver of the truck has been proved before the tribunal. He further submits that no contrary evidence could be produced by the appellant-Insurance Company. The quantum has rightly been determined by the learned tribunal, which is just and proper. The appeal has been filed on misconceived and baseless grounds and it is liable to be dismissed with cost.

7. I have considered the submissions of learned counsel for the parties and perused the records.

8. The claim petition under Section 166 read with Section 140 of M.V. Act was filed by the claimant-respondent nos. 1 to 3 alleging therein that the deceased Jai Prakash Narayan Tiwari son of Shri Ram Sajeewan Tiwari was working on the post of Deputy General Manager in R. B. Narayan Singh Sugar Mill Limited, Luxar, Haridwar. He was going on 26.05.2012 by his 6 personal Maruti 800 Car from Lucknow to his workplace along with Engineer Bhupendra Singh. The vehicle was being driven by a trained and expert driver Shri Ajay Kumar Pandey, who was driving the Maruti 800 Car at a slow speed at the left side of the road. At about 11:00 in the day in the area of Kachhauna Police Station in District Hardoi before the bridge, the Truck No. HR 55E 6794 coming from the opposite direction, being driven rashly and negligently by its driver, came on the wrong side and hit on the right side of the car, on account of which Maruti 800 Car was damaged. In the said accident, Jai Prakash Narayan Tiwari suffered serious injuries in head, on account of which, he died while he was being taken to the hospital. Engineer Bhupendra Singh and the car driver Ajay Kumar Pandey also got serious injuries, who were also got admitted in the hospital. The deceased was the only son of his parents. The deceased is survived by wife, one daughter and one son and parents. The deceased was getting Rs. 80000/- per month from the Sugar Mill along with a house for living and luxury vehicle. It was also alleged that Rs. 1,90,000/- was with the deceased along with A.T.M. card, which were misplaced in the accident. The deceased was also an income tax payee. Accordingly, the compensation was 7 claimed.

9. The respondent no. 1 i.e. owner of the truck did not file any written statement, therefore, the case proceeded ex-parte against him. The respondent no. 2 i.e. the appellant-Insurance Company filed a written statement denying the averments made in the claim petition and general pleas have been taken by the insurance company. The plea of rash and negligence driving of the driver of Maruti 800 Car was also taken. Accordingly prayer for dismissal of claim petition was made. The respondent nos. 3 and 4 i.e. parents of the deceased, who have jointly filed their written statement, have also claimed compensation. The respondent no. 5 i.e. driver of the offending truck died during pendency of the claim petition. The respondent no. 6 i.e. driver of the Maruti 800 Car, who is respondent no. 7 in this appeal filed his written statement supporting the contents of the claim petition. He also stated that he was having a valid and effective driving licence. He was not negligent in driving the vehicle. The accident had occurred on account of rash and negligent driving of the offending truck, on account of which the deceased had suffered serious injuries in his head and died.

10. On the basis of pleadings of the parties, following seven issues were framed by the tribunal:- 8 "1. क्या दि(cid:6)नांक 26.05.2012 को ट्रक संख्या एच०आर० 55ई/6794 के चालक ने वाहन को तेजी व लापरवाही से चलाते हुये गलत साइड में आकर मृतक की कार में जोर(cid:6)ार टक्कर मार दि(cid:6)या जिजसके कारण मारूतित कार क्षतितग्रस्त हो गयी व उसमें बैठे जय प्रकाश नारायन तितवारी को जिसर में गंभीर चोटें आयीं अस्पताल ले जाते समय रास्ते में मृत्यु हो गयी?

2. क्या उपरोक्त लिललि9त दि(cid:6)नांक, समय व स्थान पर हुयी (cid:6)ुर्घ<टना के समय वाहन ट्रक संख्या एचआर 55ई०/6794 केे चालक के पास वैध एवं प्रभावी चालन अनुज्ञा पत्र उपलब्ध था?

3. क्या (cid:6)ुर्घ<टना कारक वाहन के समस्त प्रपत्र जैसे पंजीयन, परदिमट, दिAटनेस व बीमा आदि(cid:6) (cid:6)ुर्घ<टना की तितथिथ पर वैध एवं प्रभावी थे?

4. क्या उक्त (cid:6)ुर्घ<टना के समय वाहन ट्रक संख्या एचआर 55ई०/6794 दिवपक्षी सं०2 ओरिरयंटल इंश्योरेंस कंपनी लिलदिमटेड से बीदिमत था तथा बीमा पालिलसी की शतF के अनुसार संचालिलत दिकया जा रहा था?

5. क्या याचीगण कोई क्षतितपूर्तित पाने के अतिधकारी हैं, यदि(cid:6) हां तो दिकतनी और दिकस पक्षकार से?

6. क्या प्रतितकर यातिचका में प्रश्नगत वाहन मारूतित 800 कार सं० यूपी 51एA 6266 के चालक तथा स्वामी को पक्षकार न बनाये जाने के कारण आवश्यक पक्षकारों के असंयोजन का (cid:6)ोष है, यदि(cid:6) हां तो प्रभाव?

7. क्या इस मामले में कथिथत (cid:6)ुर्घ<टना दि(cid:6)नांदिकत 26.05.2012 मारूतित कार वाहन सं० यूपी 51एA 6266 के चालक की योग(cid:6)ायी उपेक्षा का परिरणाम थी, यदि(cid:6) हां तो प्रभाव?"

11. After framing of the aforesaid issues, the documentary evidence was filed by the parties and the oral evidence was also adduced by the claimant-respondents. No oral evidence was adduced by the respondents including the appellant- Insurance Company.

12. The learned Tribunal after considering the pleadings of the parties, evidence and material on record recorded a finding that it is proved on the basis of evidence on record that the driver of the Truck No. HR 55E/6794, driving rashly and negligently, coming on the wrong side of the road on 9

26.05.2012, dashed the car of the deceased, on account of which the Maruti 800 Car was damaged and Jai Prakash Narayan Tiwari sitting in the car got serious injuries in his head, on account of which he died while he was being taken to the hospital. The said finding has been recorded on the basis of the evidence of the P.W. 1, P.W 2 and P.W. 3, in which the P.W. 2-Ajay Kumar Pandey is the driver of the Maruti 800 Car, having registration No. U.P.51F 6266 in which the deceased was travelling and the other eyewitness P.W. 3 Manoj Kumar Pandey, first information report, chargesheet, Postmortem Report, Panchayatnama and the site plan.

13. P.W. 2- Ajay Kumar Pandey stated in his evidence that he was driving Maruti 800 Car No. U.P.51F 6266, in which besides him his brother-in-law Shri Jai Prakash Narayan Tiwari and Bhupendra Singh Engineer were sitting. The Truck No. HR 55E/6794, which dashed their car was coming from Hardoi and going to Lucknow. The truck had dashed the car on the right side. The truck driver ran away after leaving vehicle. Thus, the deceased had suffered injuries in his head. There were injuries in the hand and on other parts also. The deceased had died before reaching the hospital. He also stated 10 that he was driving the vehicle on his side. The deceased was sitting next to him. He had lodged the F.I.R., which was lodged after about 1-1/2 hours. The speed of his car was 20- 25 Kmph. The vehicle, which dashed his car, was at a speed of 80-100 Kmph. He also stated that in the said accident, he had also suffered injuries in his head, nose, cheeks, hand and legs. Thus, he has fully supported the contents of the claim petition.

14. P.W. 3 is also an eyewitness, who was coming behind Maruti 800 Car, in which the deceased was travelling. He also supported the contents of the first information report. He stated that he had seen that the truck was being driven by its driver rashly and negligently and it dashed the car. The Maruti 800 Car was damaged badly. The persons sitting in Maruti 800 Car had suffered injuries but Jai Prakash Narayan Tiwari had suffered several injuries including on his head. He had taken the injured persons of Maruti 800 Car in their vehicle to the hospital, where Jai Prakash Narayan Tiwari was declared dead. He had seen the accident from 10-15 meters. There was no negligence of the driver of the Maruti 800 Car, which was going at a slow speed on its side. 11

15. In view of above, the injured driver of Maruti 800 Car, in which the deceased was travelling and an independent eyewitness has been produced to prove the accident, who have proved the accident and nothing could be extracted in cross-examination nor any contrary evidence has been adduced, which may create any doubt about the veracity of their evidence. Merely because Bhupendra Singh, who was traveling in the Maruti 800 Car has not been produced, the accident cannot be said to have not been proved as material eyewitnesses have been produced to prove and they have proved the same.

16. A contention has also been raised that the witnesses of chargesheet have not been produced, whereas Ajay Kumar Pandey and Manoj Kumar Pandey are the witnesses in the chargesheet filed by the Police in the criminal case lodged by P.W. 2 bearing Case Crime No. 336 of 2012, in which chargesheet has been filed against the driver of the offending truck.

17. In view of above, the judgment in the case of Gopal, Krishnaji Ketkar vs. Mahomed Haji Latif and others relied by learned counsel for the appellant, in which it has been held 12 that even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which throw light on the facts in issue, is of no assistance to learned counsel for the appellant because in the present case, an independent eyewitness and injured driver of Maruti 800 Car in which the deceased was travelling have been produced along with all relevant documentary evidence, which proved the accident by rash and negligent driving of the driver of the truck and no contrary evidence could be adduced or pointed out before this Court.

18. In view of settled proposition of law, no evidence collected during investigation in criminal proceedings can be considered in the case under M.V. Act unless proved, therefore the site plan and other document relied by learned counsel for the appellant and submission on the basis of same has no relevance and are of no assistance to the the case of the appellant-Insurance Company.

19. The Hon'ble Supreme Court, in the case of Surender Kumar Arora and another vs. Manoj Bisla and others (Supra), has held that once the dependants of the victim of an 13 accident or his dependants approach the tribunal under Section 166 of the M.V. Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. In the present case, the claimant-respondents have established the negligence of the driver of the offending vehicle.

20. A co-ordinate Bench of this Court in, Shriram General Insurance Company Limited vs. Smt. Hem Lata and others (Supra), has held that in absence of there being any other independent witness and also failure of the claimants to examine an injured eye-witness, there is sufficient material to doubt actual involvement of the vehicle insured with the appellant in the accident. This case is also of no assistance to learned counsel for the appellant for the reason that an independent eyewitness has been produced as P.W. 3 and the injured driver of the vehicle, in which the deceased was travelling, has also been produced as P.W. 2. They have proved the accident and rash and negligent driving of driver of offending truck and no contrary evidence could be adduced by the appellant-Insurance Company. 14

21. The Hon'ble Supreme Court, in the case of Oriental Insurance Company Limited vs. Premlata Shukla and others; 2007 (3) T.A.C. 11 (S.C.), has held that a party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. This case is also of no assistance to learned counsel for the appellant.

22. A Division Bench of this Court, in the case of Parashuram Pal and others vs. Ram Lakhan Rajwat and another (Supra), has held that it is not res-integra that in motor accident claim petition charge sheet filed by the police investigating the accident as a crime is not substantive evidence and compensation cannot be awarded only on this basis. The claimants can succeed only on the basis of substantive evidence adduced by them before the Motor Accident Claims Tribunal. The claimants have not examined any other witness who had informed the police about involvement of truck of 15 respondent no. 1. This case is also of no assistance to learned counsel for the appellant for the reason that the accident on account of rash and negligent driving of the offending truck has been proved by the claimant-respondents by adducing substantive evidence and the evidence of independent eyewitness and also the injured driver of the car, in which the deceased was traveling, who had lodged the First Information Report.

23. One of the contention of learned counsel for the appellant-Insurance Company is that the owner and driver of the Maruti 800 Car have not been impleaded, therefore, the claim petition suffers from non-impleadment of necessary parties, whereas the driver of the Maruti 800 Car and the offending truck were impleaded and driver of the Maruti 800 Car was also produced as P.W 2 in evidence. The truck driver had died during pendency of the claim petition and the dead was written against his name on an application moved by the claimant-respondents, which was allowed by means of the order dated 28.11.2015 by the tribunal and no objection to the same was filed by anybody, therefore, the contention in this regard is also misconceived and not tenable. 16

24. The plea of the learned counsel for the appellant that no issue was framed in regard to the contributory negligence of the driver of the Maruti 800 Car is misconceived and not tenable for the reason that the specific Issue No. 7, as disclosed above, was framed in regard to the contributory negligence of the driver of the Maruti 800 Car No. UP51F

6266. The same has been considered and decided by the learned tribunal on the basis of pleadings, evidence and material on record and held that the rash and negligent driving of the driver of truck has been proved. Nothing contrary can be shown in regard to the findings recorded by the tribunal on this issue.

25. The learned tribunal has considered and decided the issue of compensation while deciding the issue No. 5, which is as to whether the claimant-respondents are entitled for any compensation, if yes, then how much and from which party. The learned tribunal after considering the pleadings, evidence and material on record found that the claim of income of Rs. 14,53,400/- of the deceased has been made which does not seem to be correct and after considering the various documents filed by the claimant-respondents and the evidence of P.W. 4, who appeared to prove the income of the deceased 17 and income shown in the Form 16 of 2011-12, in which after deduction of the medical reimbursement, the total income of the deceased is Rs. 8,23,658 has been accepted. The deceased had paid Rs. 80,000/- as income tax and after deduction of the same, the annual income comes to Rs. 7,43,458/- and accordingly allowed the compensation. Thus, the case relied by learned counsel for the appellant passed in the case of Malarvizhi and others vs. United India Insurance Company Limited and another (Supra), is of no assistance to learned counsel for the appellant. The contention that no income tax has been deducted is also misconceived and not tenable for the reason that it has been deducted.

26. Learned counsel for the appellant submits that the monthly income of deceased could have been considered as Rs. 65,000/-, which was shown in payslip (Form J) of May, 2012 but no reasons could be assigned for the same. Thus, in view of detailed reasons recorded by the learned tribunal for arriving at the conclusion of the income of the deceased, the same does not suffer from any illegality or error and nothing contrary could be shown on this issue also. Thus, the learned tribunal has rightly and in accordance with law has decided the income of the deceased and quantum of compensation. 18

27. In view of above and considering the overall facts and circumstances of the case, this Court is of the view that the learned tribunal has partly allowed the claim petition in accordance with law after considering the pleadings, evidence and material on record by means of the impugned judgment and award, which does not suffer from any illegality or error, which may call for any interference by this Court. The appeal has been filed on misconceived and baseless grounds and the contentions raised by learned counsel for the appellant- Insurance Company have no force and not tenable. The appeal is liable to be dismissed.

28. The appeal is, accordingly, dismissed. No order as to cost. Order Date:- 20.03.2025/Raj

Division Bench of this Court in First Appeal From Order No. 956 of 2013; Parashuram Pal and others vs. Ram Lakhan and another, Gopal, Krishnaji Ketkar vs. Mahomed Haji Latif and others; AIR 1968 SC 1413, Surender Kumar Arora and another 4 vs. Manoj Bisla and others; (2012) 4 SCC 552, Shriram General Insurance Company Limited vs. Smt. Hem Lata and others; 2021 (2) T.A.C. 366 (All.) and Oriental Insurance Company Limited vs. Premlata Shukla and others; 2007 (3) T.A.C. 11 (S.C.)

6. Per contra, learned counsel for the claimant-respondent nos. 1 to 3 vehemently opposing the submissions of learned counsel for the appellant submits that there is no contradiction in evidence of P.W. 1, 2 and 3 and rash and negligent driving of the offending truck has been proved by them and nothing could be extracted from them, which may create any doubt about their evidence. He further submits that the driver of the Maruti 800 Car was impleaded and he has also been produced in evidence as P.W. 2, who has proved the accident. The issue of contributory negligence of driver of Maruti 800 Car was framed as Issue No. 7 and the same has been dealt with by the learned tribunal and the learned tribunal found that there was no contributory negligence of the driver of the Maruti 800 Car. Since the driver of the truck had died, therefore, dead was written against his name and non-substitution would not make any difference as the vehicle was insured and the award is to be satisfied by the appellant- 5 Insurance Company. Even otherwise no objection to the application for deleting the name of the driver of the truck was filed by anybody. He further submits that the technical report of the truck prepared during investigation cannot be relied by the appellant-Insurance Company without being proved, particularly when the rash and negligent driving of the driver of the truck has been proved before the tribunal. He further submits that no contrary evidence could be produced by the appellant-Insurance Company. The quantum has rightly been determined by the learned tribunal, which is just and proper. The appeal has been filed on misconceived and baseless grounds and it is liable to be dismissed with cost.

7. I have considered the submissions of learned counsel for the parties and perused the records.

8. The claim petition under Section 166 read with Section 140 of M.V. Act was filed by the claimant-respondent nos. 1 to 3 alleging therein that the deceased Jai Prakash Narayan Tiwari son of Shri Ram Sajeewan Tiwari was working on the post of Deputy General Manager in R. B. Narayan Singh Sugar Mill Limited, Luxar, Haridwar. He was going on 26.05.2012 by his 6 personal Maruti 800 Car from Lucknow to his workplace along with Engineer Bhupendra Singh. The vehicle was being driven by a trained and expert driver Shri Ajay Kumar Pandey, who was driving the Maruti 800 Car at a slow speed at the left side of the road. At about 11:00 in the day in the area of Kachhauna Police Station in District Hardoi before the bridge, the Truck No. HR 55E 6794 coming from the opposite direction, being driven rashly and negligently by its driver, came on the wrong side and hit on the right side of the car, on account of which Maruti 800 Car was damaged. In the said accident, Jai Prakash Narayan Tiwari suffered serious injuries in head, on account of which, he died while he was being taken to the hospital. Engineer Bhupendra Singh and the car driver Ajay Kumar Pandey also got serious injuries, who were also got admitted in the hospital. The deceased was the only son of his parents. The deceased is survived by wife, one daughter and one son and parents. The deceased was getting Rs. 80000/- per month from the Sugar Mill along with a house for living and luxury vehicle. It was also alleged that Rs. 1,90,000/- was with the deceased along with A.T.M. card, which were misplaced in the accident. The deceased was also an income tax payee. Accordingly, the compensation was 7 claimed.

9. The respondent no. 1 i.e. owner of the truck did not file any written statement, therefore, the case proceeded ex-parte against him. The respondent no. 2 i.e. the appellant-Insurance Company filed a written statement denying the averments made in the claim petition and general pleas have been taken by the insurance company. The plea of rash and negligence driving of the driver of Maruti 800 Car was also taken. Accordingly prayer for dismissal of claim petition was made. The respondent nos. 3 and 4 i.e. parents of the deceased, who have jointly filed their written statement, have also claimed compensation. The respondent no. 5 i.e. driver of the offending truck died during pendency of the claim petition. The respondent no. 6 i.e. driver of the Maruti 800 Car, who is respondent no. 7 in this appeal filed his written statement supporting the contents of the claim petition. He also stated that he was having a valid and effective driving licence. He was not negligent in driving the vehicle. The accident had occurred on account of rash and negligent driving of the offending truck, on account of which the deceased had suffered serious injuries in his head and died.

10. On the basis of pleadings of the parties, following seven issues were framed by the tribunal:- 8 "1. क्या दि(cid:6)नांक 26.05.2012 को ट्रक संख्या एच०आर० 55ई/6794 के चालक ने वाहन को तेजी व लापरवाही से चलाते हुये गलत साइड में आकर मृतक की कार में जोर(cid:6)ार टक्कर मार दि(cid:6)या जिजसके कारण मारूतित कार क्षतितग्रस्त हो गयी व उसमें बैठे जय प्रकाश नारायन तितवारी को जिसर में गंभीर चोटें आयीं अस्पताल ले जाते समय रास्ते में मृत्यु हो गयी?

2. क्या उपरोक्त लिललि9त दि(cid:6)नांक, समय व स्थान पर हुयी (cid:6)ुर्घ<टना के समय वाहन ट्रक संख्या एचआर 55ई०/6794 केे चालक के पास वैध एवं प्रभावी चालन अनुज्ञा पत्र उपलब्ध था?

3. क्या (cid:6)ुर्घ<टना कारक वाहन के समस्त प्रपत्र जैसे पंजीयन, परदिमट, दिAटनेस व बीमा आदि(cid:6) (cid:6)ुर्घ<टना की तितथिथ पर वैध एवं प्रभावी थे?

4. क्या उक्त (cid:6)ुर्घ<टना के समय वाहन ट्रक संख्या एचआर 55ई०/6794 दिवपक्षी सं०2 ओरिरयंटल इंश्योरेंस कंपनी लिलदिमटेड से बीदिमत था तथा बीमा पालिलसी की शतF के अनुसार संचालिलत दिकया जा रहा था?

5. क्या याचीगण कोई क्षतितपूर्तित पाने के अतिधकारी हैं, यदि(cid:6) हां तो दिकतनी और दिकस पक्षकार से?

6. क्या प्रतितकर यातिचका में प्रश्नगत वाहन मारूतित 800 कार सं० यूपी 51एA 6266 के चालक तथा स्वामी को पक्षकार न बनाये जाने के कारण आवश्यक पक्षकारों के असंयोजन का (cid:6)ोष है, यदि(cid:6) हां तो प्रभाव?

7. क्या इस मामले में कथिथत (cid:6)ुर्घ<टना दि(cid:6)नांदिकत 26.05.2012 मारूतित कार वाहन सं० यूपी 51एA 6266 के चालक की योग(cid:6)ायी उपेक्षा का परिरणाम थी, यदि(cid:6) हां तो प्रभाव?"

11. After framing of the aforesaid issues, the documentary evidence was filed by the parties and the oral evidence was also adduced by the claimant-respondents. No oral evidence was adduced by the respondents including the appellant- Insurance Company.

12. The learned Tribunal after considering the pleadings of the parties, evidence and material on record recorded a finding that it is proved on the basis of evidence on record that the driver of the Truck No. HR 55E/6794, driving rashly and negligently, coming on the wrong side of the road on 9

26.05.2012, dashed the car of the deceased, on account of which the Maruti 800 Car was damaged and Jai Prakash Narayan Tiwari sitting in the car got serious injuries in his head, on account of which he died while he was being taken to the hospital. The said finding has been recorded on the basis of the evidence of the P.W. 1, P.W 2 and P.W. 3, in which the P.W. 2-Ajay Kumar Pandey is the driver of the Maruti 800 Car, having registration No. U.P.51F 6266 in which the deceased was travelling and the other eyewitness P.W. 3 Manoj Kumar Pandey, first information report, chargesheet, Postmortem Report, Panchayatnama and the site plan.

13. P.W. 2- Ajay Kumar Pandey stated in his evidence that he was driving Maruti 800 Car No. U.P.51F 6266, in which besides him his brother-in-law Shri Jai Prakash Narayan Tiwari and Bhupendra Singh Engineer were sitting. The Truck No. HR 55E/6794, which dashed their car was coming from Hardoi and going to Lucknow. The truck had dashed the car on the right side. The truck driver ran away after leaving vehicle. Thus, the deceased had suffered injuries in his head. There were injuries in the hand and on other parts also. The deceased had died before reaching the hospital. He also stated 10 that he was driving the vehicle on his side. The deceased was sitting next to him. He had lodged the F.I.R., which was lodged after about 1-1/2 hours. The speed of his car was 20- 25 Kmph. The vehicle, which dashed his car, was at a speed of 80-100 Kmph. He also stated that in the said accident, he had also suffered injuries in his head, nose, cheeks, hand and legs. Thus, he has fully supported the contents of the claim petition.

14. P.W. 3 is also an eyewitness, who was coming behind Maruti 800 Car, in which the deceased was travelling. He also supported the contents of the first information report. He stated that he had seen that the truck was being driven by its driver rashly and negligently and it dashed the car. The Maruti 800 Car was damaged badly. The persons sitting in Maruti 800 Car had suffered injuries but Jai Prakash Narayan Tiwari had suffered several injuries including on his head. He had taken the injured persons of Maruti 800 Car in their vehicle to the hospital, where Jai Prakash Narayan Tiwari was declared dead. He had seen the accident from 10-15 meters. There was no negligence of the driver of the Maruti 800 Car, which was going at a slow speed on its side. 11

15. In view of above, the injured driver of Maruti 800 Car, in which the deceased was travelling and an independent eyewitness has been produced to prove the accident, who have proved the accident and nothing could be extracted in cross-examination nor any contrary evidence has been adduced, which may create any doubt about the veracity of their evidence. Merely because Bhupendra Singh, who was traveling in the Maruti 800 Car has not been produced, the accident cannot be said to have not been proved as material eyewitnesses have been produced to prove and they have proved the same.

16. A contention has also been raised that the witnesses of chargesheet have not been produced, whereas Ajay Kumar Pandey and Manoj Kumar Pandey are the witnesses in the chargesheet filed by the Police in the criminal case lodged by P.W. 2 bearing Case Crime No. 336 of 2012, in which chargesheet has been filed against the driver of the offending truck.

17. In view of above, the judgment in the case of Gopal, Krishnaji Ketkar vs. Mahomed Haji Latif and others relied by learned counsel for the appellant, in which it has been held 12 that even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which throw light on the facts in issue, is of no assistance to learned counsel for the appellant because in the present case, an independent eyewitness and injured driver of Maruti 800 Car in which the deceased was travelling have been produced along with all relevant documentary evidence, which proved the accident by rash and negligent driving of the driver of the truck and no contrary evidence could be adduced or pointed out before this Court.

18. In view of settled proposition of law, no evidence collected during investigation in criminal proceedings can be considered in the case under M.V. Act unless proved, therefore the site plan and other document relied by learned counsel for the appellant and submission on the basis of same has no relevance and are of no assistance to the the case of the appellant-Insurance Company.

19. The Hon'ble Supreme Court, in the case of Surender Kumar Arora and another vs. Manoj Bisla and others (Supra), has held that once the dependants of the victim of an 13 accident or his dependants approach the tribunal under Section 166 of the M.V. Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. In the present case, the claimant-respondents have established the negligence of the driver of the offending vehicle.

20. A co-ordinate Bench of this Court in, Shriram General Insurance Company Limited vs. Smt. Hem Lata and others (Supra), has held that in absence of there being any other independent witness and also failure of the claimants to examine an injured eye-witness, there is sufficient material to doubt actual involvement of the vehicle insured with the appellant in the accident. This case is also of no assistance to learned counsel for the appellant for the reason that an independent eyewitness has been produced as P.W. 3 and the injured driver of the vehicle, in which the deceased was travelling, has also been produced as P.W. 2. They have proved the accident and rash and negligent driving of driver of offending truck and no contrary evidence could be adduced by the appellant-Insurance Company. 14

21. The Hon'ble Supreme Court, in the case of Oriental Insurance Company Limited vs. Premlata Shukla and others; 2007 (3) T.A.C. 11 (S.C.), has held that a party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. This case is also of no assistance to learned counsel for the appellant.

22. A Division Bench of this Court, in the case of Parashuram Pal and others vs. Ram Lakhan Rajwat and another (Supra), has held that it is not res-integra that in motor accident claim petition charge sheet filed by the police investigating the accident as a crime is not substantive evidence and compensation cannot be awarded only on this basis. The claimants can succeed only on the basis of substantive evidence adduced by them before the Motor Accident Claims Tribunal. The claimants have not examined any other witness who had informed the police about involvement of truck of 15 respondent no. 1. This case is also of no assistance to learned counsel for the appellant for the reason that the accident on account of rash and negligent driving of the offending truck has been proved by the claimant-respondents by adducing substantive evidence and the evidence of independent eyewitness and also the injured driver of the car, in which the deceased was traveling, who had lodged the First Information Report.

23. One of the contention of learned counsel for the appellant-Insurance Company is that the owner and driver of the Maruti 800 Car have not been impleaded, therefore, the claim petition suffers from non-impleadment of necessary parties, whereas the driver of the Maruti 800 Car and the offending truck were impleaded and driver of the Maruti 800 Car was also produced as P.W 2 in evidence. The truck driver had died during pendency of the claim petition and the dead was written against his name on an application moved by the claimant-respondents, which was allowed by means of the order dated 28.11.2015 by the tribunal and no objection to the same was filed by anybody, therefore, the contention in this regard is also misconceived and not tenable. 16

24. The plea of the learned counsel for the appellant that no issue was framed in regard to the contributory negligence of the driver of the Maruti 800 Car is misconceived and not tenable for the reason that the specific Issue No. 7, as disclosed above, was framed in regard to the contributory negligence of the driver of the Maruti 800 Car No. UP51F

6266. The same has been considered and decided by the learned tribunal on the basis of pleadings, evidence and material on record and held that the rash and negligent driving of the driver of truck has been proved. Nothing contrary can be shown in regard to the findings recorded by the tribunal on this issue.

25. The learned tribunal has considered and decided the issue of compensation while deciding the issue No. 5, which is as to whether the claimant-respondents are entitled for any compensation, if yes, then how much and from which party. The learned tribunal after considering the pleadings, evidence and material on record found that the claim of income of Rs. 14,53,400/- of the deceased has been made which does not seem to be correct and after considering the various documents filed by the claimant-respondents and the evidence of P.W. 4, who appeared to prove the income of the deceased 17 and income shown in the Form 16 of 2011-12, in which after deduction of the medical reimbursement, the total income of the deceased is Rs. 8,23,658 has been accepted. The deceased had paid Rs. 80,000/- as income tax and after deduction of the same, the annual income comes to Rs. 7,43,458/- and accordingly allowed the compensation. Thus, the case relied by learned counsel for the appellant passed in the case of Malarvizhi and others vs. United India Insurance Company Limited and another (Supra), is of no assistance to learned counsel for the appellant. The contention that no income tax has been deducted is also misconceived and not tenable for the reason that it has been deducted.

26. Learned counsel for the appellant submits that the monthly income of deceased could have been considered as Rs. 65,000/-, which was shown in payslip (Form J) of May, 2012 but no reasons could be assigned for the same. Thus, in view of detailed reasons recorded by the learned tribunal for arriving at the conclusion of the income of the deceased, the same does not suffer from any illegality or error and nothing contrary could be shown on this issue also. Thus, the learned tribunal has rightly and in accordance with law has decided the income of the deceased and quantum of compensation. 18

27. In view of above and considering the overall facts and circumstances of the case, this Court is of the view that the learned tribunal has partly allowed the claim petition in accordance with law after considering the pleadings, evidence and material on record by means of the impugned judgment and award, which does not suffer from any illegality or error, which may call for any interference by this Court. The appeal has been filed on misconceived and baseless grounds and the contentions raised by learned counsel for the appellant- Insurance Company have no force and not tenable. The appeal is liable to be dismissed.

28. The appeal is, accordingly, dismissed. No order as to cost. Order Date:- 20.03.2025/Raj