High Court of Judicature at Allahabad (Lucknow) ********* Neutral Citation No. - 2025:AHC-LKO:40559 Court No. - 8 Case :- FIRST APPEAL FROM ORDER No. - 630 of 2014 Appellant :- Dr. Sharad Kumar Singh And Another Respondent :- The Oriental Insurance Company Ltd.Lko.Thro.Manager And Ors. Counsel for Appellant :- V.N.Shukla,Suyesh Pradhan Counsel for Respondent :- Atul Mishra,Mrs. Pooja Arora,Subhash Chandra Gulati,U.P.S.Kushwaha with Case :- FIRST APPEAL FROM ORDER No. - 386 of 2014 Appellant :- The Oritental Insurance Co.Ltd. Lko.Throu The Manager Respondent :- Dr. Sharad Kumar Singh And Ors. Counsel for Appellant :- U.P.S.Kushwaha,Mrs. Pooja Arora,Subhash Chandra Gulati Counsel for Respondent :- Abhishek Anand,Sameer Kalia,Srideep Chatterjee,Suyesh Pradhan,Vikas Sharma,Vyas Narayan Shukla Hon'ble Jaspreet Singh,J. 1. This is a batch of two appeals preferred under Section 173 of the Motor Vehicles Act, 19881 assailing the impugned award dated 27.01.2014 passed in Claim Petition No.460 of 2005, whereby, 1 (hereinafter referred to as “Act, 1988”) F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.1 of 26 in a death case, the Motor Accident Claims Tribunal2/Additional District Judge, Court No.14, Lucknow has awarded a sum of Rs.20,94,925/- along with 7% interest per annum in favour of the claimants. 2. Appeal, bearing F.A.F.O. No.386 of 2014 has been filed by the Oriental Insurance Company Limited3, whereas the other connected appeal bearing F.A.F.O. No.630 of 2014 has been filed by the claimants seeking enhancement. It is in the aforesaid backdrop that the two appeals have been connected, heard together, and decided by this common judgment. 3. At the outset, this Court proposes to first take up F.A.F.O. No. 386 of 2014 filed by the Insurance Company for consideration. It has been urged that the basic ingredients for grant of compensation in a petition preferred under Section 166 of the Act, 1988 depend upon the pleading and proof of negligence. In case the negligence itself is not 2 (hereinafter referred to as “Tribunal”) 3 (hereinafter referred as “Insurance Company”) F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.2 of 26 proved, no amount can be awarded. Accordingly, it would be appropriate to consider this issue first and in case something survives, then, of course, the issue of enhancement would also be considered. 4. In order to appreciate the controversy involved in the instant appeal, it will be appropriate to notice certain brief facts giving rise to the instant appeals. 5. For the sake of convenience, the Court shall take the facts from F.A.F.O. No. 386 of 2014 and the parties shall be described as impleaded in the said F.A.F.O. 6. It was the case of claimants-respondent Nos.1 to 3 that the deceased, namely, Dr. Nitin Singh, who was working as a Consultant and Fellow at Sankara Nethralaya in Coimbatore4. On 21.08.2004, at around 10:45 P.M., it is stated that the deceased was riding his Activa Scooter bearing No.MH12SA939. It is further stated that he was hit 4 (hereinafter referred to as “Nethralaya”) F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.3 of 26 by a Truck bearing No.KL9K72825. As a result of the said accident, Dr. Nitin Singh suffered grievous injuries and died. The offending Truck is said to be insured with the appellant and the owner of the said Truck has been impleaded as respondent No. 4 (herein), whereas respondent No. 5 is the driver of the said vehicle. It is also stated that another colleague of the deceased, Sri K. Ramachandran, had lodged an F.I.R., which, after investigation, was followed with a chargesheet which was also filed. It is in the aforesaid backdrop that the parents and wife of the deceased instituted Claim Petition No. 460 of 2005. 7. The said claim petition came to be contested; however, apart from filing the written statement, none appeared on behalf of the owner or the driver. It was only the Insurance Company that contested the plea. Taking note of the material evidence laid before the Tribunal and upon its analysis, the Tribunal recorded findings of fact to the effect: 5 (hereinafter referred to as “Truck”) F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.4 of 26 (i) that the accident was caused due to the rash and negligent driving of the Truck; (ii) that the Truck in question was duly insured with the appellant-company; (iii) that the driver of the Truck possessed the requisite documents, a valid permit and a valid and subsisting driving licence. 8. The Tribunal thereafter went on to compute the compensation and found that the deceased was 29 years of age. He was survived by his father, mother and wife. Since it was pleaded that the deceased was in a Fellowship programme with Nethralaya, where he was being paid a stipend of Rs.10,000/-, the same was taken as his income. Considering his age, the multiplier of 17 was adopted and after making deductions and factoring 50% towards future prospects, the Tribunal awarded a sum of Rs. 20,94,925/- along with 7% interest, vide the award dated 27.01.2014. It is F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.5 of 26 this award which is under challenge before this Court in the appeal. 9. Ms. Pooja Arora, learned counsel for the Insurance Company, has vehemently urged that there are glaring discrepancies in the statement of the alleged eyewitness, namely, Sri Sanjeev Kumar Verma, who was examined as P.W.2. The thrust of the submission is that, as per the claimants' plea, the accident occurred in Coimbatore. As a first response, the F.I.R. came to be lodged by Sri K. Ramachandran, who was also a colleague of the deceased. In the said F.I.R., there is no mention of Sanjeev Kumar Verma, who was later examined as an eyewitness and marked as P.W.2. It is also urged that when the said alleged eyewitness was cross-examined, there were glaring gaps in his testimony, which clearly indicated that he was neither present at the site nor had any idea regarding the occurrence. Being known to the family of the deceased, he had put in an appearance and agreed to depose as an eyewitness. Such a testimony could not have been F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.6 of 26 relied upon by the Tribunal to record a finding regarding rash and negligent driving. 10. A corollary of the aforesaid submission is that, admittedly, Sri K. Ramachandran, who had lodged the F.I.R. promptly and was admittedly a colleague of the deceased, was never examined nor invited to enter the witness box. Thus, for the aforesaid reason, the claimants withheld the best evidence from the Tribunal. Accordingly, the issue relating to rash and negligent driving was not proved. Hence, in such circumstances, no award could have been made, much less a direction to the Insurance Company to indemnify the said award. 11. Sri Shishir Pradhan, learned counsel appearing for the claimants, has urged that P.W.2- Sanjeev Kumar Verma, even though known to the family, his testimony could not be discarded on this account alone. He had specifically stated that he had gone on a leisure trip to Coimbatore and, on the given fateful day, he was with the deceased as a pillion rider. He narrated the accident and his F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.7 of 26 testimony cannot be faulted for certain minor discrepancies which do not impact the foundational facts. 12. It is also urged that though the deceased and his family members were residents of Lucknow and since the deceased was in Coimbatore, apparently, the parents along with his wife, who filed for the compensation, were not eyewitnesses. Nevertheless, this does not mean that the accident did not happen or that the offending Truck was not being driven rashly or negligently. Once the foundational facts regarding the occurrence of the accident and the death or injury to the person are proved, and negligence can be inferred. As far as the compensation is concerned, it is paid under the Act, 1988, which is part of a social welfare scheme and it has to be construed with a pragmatic approach and a pedantic view should be shunned. 13. It is in the aforesaid circumstances that it is urged the Tribunal has rightly concluded that the death F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.8 of 26 of Dr. Nitin Singh was a direct outcome of the rash and negligent driving of the Truck. 14. Sri Shishir Pradhan, taking his submissions forward and seeking enhancement of the award, which is the subject matter of F.A.F.O. No. 630 of 2014, has urged that the deceased had a bright future. He had good qualifications as an eye surgeon and even though he was working under a Fellowship at Nethralaya and was granted a stipend of Rs. 10,000/-, he had been offered an appointment at one of the leading eye clinics in Lucknow, where he was assured a salary of Rs. 20,000/- per month along with the opportunity of private practice. In case he chose to forgo his private practice, he would be entitled to Rs. 40,000/- per month. It is on this basis that the Tribunal should have computed the income and having failed to do so, the Tribunal has awarded a meagre sum. 15. Learned counsel for the claimants–respondents has further urged that, apart from the aforesaid F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.9 of 26 facts, the Tribunal has also not appropriately considered the issue of grant of consortium and the amount towards the conventional heads. Accordingly, the award is on the lower side and requires modification and indulgence by the Court. 16. Ms. Arora, for the Insurance Company, while refuting the submissions insofar as the enhancement is concerned, has urged that all the relevant aspects have been taken into consideration by the Tribunal, inasmuch as the appropriate multiplier considering the age of the deceased, the income as proved, as well as the number of family members and appropriate figures towards conventional heads have been awarded. As such, there is no question of any enhancement in the award. Consequently, the appeal filed by the claimants also deserves to be dismissed. 17. The Court has heard the learned counsel for the parties and has also perused the material on record. F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.10 of 26 18. The record reflects certain undisputed facts, namely, that the deceased was in Coimbatore undergoing a Fellowship programme with Nethralaya and was awarded a stipend of Rs. 10,000/- per month. It is also not disputed that the death of Dr. Nitin Singh occurred as a result of an accident involving the offending Truck. Furthermore, it is not disputed that the alleged accident took place at around 10:45 P.M. and the F.I.R. was lodged promptly at around 0:100 hours. The F.I.R. was lodged by Sri K. Ramachandran, who was a colleague of the deceased. It is also not disputed that the deceased was 29 years of age and was survived by his aged parents and a young wife. 19. In view of the aforesaid undisputed facts and considering the submissions advanced by the learned counsel for the Insurance Company, which apparently tempts the Court to enter into the arena of reappraisal of evidence for the purpose of arriving at a conclusion as to whether the death of the deceased was on account of rash and negligent F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.11 of 26 driving of the offending Truck insured by the appellant-Insurance Company. 20. It is in this context that, if the record is perused, it reflects that on behalf of the claimants, the father of the deceased, Dr. S.K. Singh, was examined as P.W.1, whereas Sanjeev Kumar Verma, said to be an eyewitness who was with the deceased at the time of the accident, was examined as P.W.2. Sri Ashok Kumar Singh, was examined as P.W.3, to prove the income of the deceased. 21. The contention of the learned counsel for the Insurance Company is that Sri K. Ramachandran, who was a colleague of the deceased and the first responder who got the F.I.R. lodged, being the best witness, was never examined. As far as P.W.2- Sanjeev Kumar Verma is concerned, though he is stated to be the eyewitness, his testimony indicates that he was not aware of the basic facts, which raises doubt as to whether he was present at the site or not. F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.12 of 26 22. Having considered this aspect of the matter and upon perusal of the statement recorded by P.W.2 – Sanjeev Kumar Verma, it appears that in his examination-in-chief, he stated that he was present at the site along with the deceased, who had invited him to Coimbatore for a leisure trip. He also stated that he had witnessed the accident, which was an outcome of the rash and negligent driving of the Truck. He further explained that all the paperwork was handled by Sri K. Ramachandran due to a communication gap arising from the language barrier, as P.W.2 – Sanjeev Kumar Verma, being from North India, was not well-versed in the regional language spoken in Coimbatore. 23. If the cross-examination of the said witness is perused, it indicates that emphasis was laid on certain non-vital issues. It was pointed out that the witness did not know where or in which State Coimbatore is located. It was further highlighted that he could not specify the intervening stations while traveling from Lucknow to Coimbatore. More F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.13 of 26 surprisingly, if the said witness was indeed present at the site, he made no mention of Sri K. Ramachandran and vice versa, Sri K. Ramachandran, while lodging the F.I.R., did not mention the presence of P.W.2- Sanjeev Kumar Verma. This casts doubt on the presence of the said witness at the scene of the accident. 24. This Court, having taken note of the aforesaid, finds that it is not disputed that an F.I.R. was lodged. It is also not disputed that, in furtherance thereof, a chargesheet was filed wherein the driver of the offending Truck was named as an accused. The accident occurred on 21.08.2004, whereas the witnesses were examined in the year 2013, almost nine years after the date of the accident. In such circumstances, certain discrepancies in the depositions/statements are only natural, and this cannot be a ground to discredit the testimonies of the witnesses, especially in matters relating to accidents arising out of the use of motor vehicles, which are the subject matter under the Act, 1988. F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.14 of 26 25. This aspect has been considered by the Apex Court in : (i) Bimla Devi and others vs. Himachal Road Transport Corporation6; (ii) Sunita and others vs. Rajasthan State Road Transportation Corporation and another7; (iii) Anita Sharma and others vs. New India Assurance Company Limited and another8. (iv) Mathew Alexander vs. Mohammed Shafi and another9. 26. In light of the ratio laid down in the aforesaid decisions, this Court is of the clear view that minor discrepancies in the statements of witnesses— especially when recorded after nine years—cannot be tested by any empirical formula. It is but natural that some latitude must be afforded in appearing such evidence. If the foundational facts 6 (2009) 13 SCC 530 7 (2020) 13 SCC 486 8 (2021) 1 SCC 171 9 (2023) SCC Online SC 832 F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.15 of 26 regarding the occurrence are established and proved, then minor discrepancies must give way in order to do substantive justice, particularly keeping in view the fact that the claimants were based in Lucknow, while the accident occurred in Coimbatore. 27. It is also relevant to note and judicial notice can be taken that in such cases involving accidents, people are not readily available or are often unwilling to appear and give their testimony as witnesses, especially when a witness is required to travel more than 1,500 kilometers. In this view of the matter, nothing adverse can be inferred from the fact that Sri K. Ramachandran was not examined. 28. On the other hand, what is more important is that even though the owner and driver of the offending Truck were impleaded and had initially come forward to contest the proceedings, they did not appear in the witness box, nor was any attempt made by the Insurance Company to summon F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.16 of 26 them. Admittedly, the Insurance Company steps into the shoes of the insured, and by not leading any evidence, it cannot seek to disprove the case merely on the basis of certain discrepancies, especially when the best evidence, if the issue of negligence was to be determined, would have been the testimony of the driver of the offending vehicle. 29. Admittedly, the driver of the offending Truck was never summoned, nor did he voluntarily come forward to depose. Hence, the statements given by the claimants' witnesses remained uncontroverted and this Court does not find any palpable error committed by the Tribunal in relying upon the testimony of P.W.2- Sanjeev Kumar Verma to hold that the accident occurred on account of rash and negligent driving by the Truck. To that extent, the submission of learned counsel for the appellant does not find favour with this Court. F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.17 of 26 30. It will also be relevant to note that the learned counsel for the appellant has relied upon certain decisions, namely : (i) Surender Kumar Arora and Another vs. Manoj Bisla and Others10; (ii) Shriram General Insurance Co. Ltd. vs. Smt. Hem Lata and others11; (iii) Sri Subir Sikder vs. New India Assurance Company Ltd. And others12 31. However, with due respect, it is pointed out that the decisions of Bimla, Anita, Sunita and Mathew Alexander (supra) referred to hereinabove, rendered by the Apex Court, hold the field. Since the decisions of this Court as well as the High Court at Calcutta do not take note of the aforesaid binding precedents of the Apex Court. Thus, the decisions cited by the appellant do not come to aid the appellant’s case. 10 (2012) 4 SCC 552 : AIR 2012 Supreme Court 1918 11 2021 (2) TAC 366 (All.) 12 2020 (1) TAC 443 : 2020 (4) ACC 158 F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.18 of 26 32. It is not disputed by the counsel for the Insurance Company that the offending Truck was duly insured, its driver held a valid driving licence and there was no violation of any policy condition. In such circumstances, the amount awarded and the direction for the same to be paid/indemnified by the Insurance Company cannot be faulted. 33. For the aforesaid reasons, this Court does not find that there is any merit insofar as F.A.F.O. No.386 of 2014 is concerned. 34. Considering F.A.F.O. No.630 of 2014 seeking enhancement and noticing the submissions of learned counsel for the claimants that the deceased was a young doctor and, though he was given a stipend of Rs.10,000/-, he had been issued an appointment letter dated 25.03.2004 by Prakash Netra Kendra at Lucknow wherein he would receive Rs.20,000/- per month with private practice allowance or Rs.40,000/- per month without private practice. It is thus the case of the claimants that this amount should have been F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.19 of 26 taken as the basis, and in such circumstances, the award deserves to be enhanced. 35. Considering the aforesaid submissions and from the record, it indicates that a letter said to have been issued by Prakash Netra Kendra dated 25.03.2004 bearing paper No. C34/37 has been placed on record. 36. From the perusal of the aforesaid letter, even though it has been captioned as “appointment,” it is interesting to note the contents of that letter, which, for the sake of reference, are being reproduced hereunder: “Prakash Netra Kendr NH-2. Vipul Khand-IV, Gomti Nagar, Lucknow Tel. 2397266, 2397719, 3106759 25-3-2004 To, Dr. Nitin Singh MBBS, DOMS S/o Prof. S. K. Singh 2/448, Vivek Khand Gomti Nagar Lucknow, U.P. APPOINMENT Dear Dr. Nitin Singh, F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.20 of 26 With regard to your application. You will be happy to note that you have been earmarked to join Prakash Netra Kendr as a Junior Consultant. We are pleased to know that you have been awarded one year "Fellowship" at Sankara Eye Hospital, Coimbatore. Your emoluments has been decided for Rs.Twenty Thousand per month, With private practice allowed at our centre or Rs. 40,000/- per month with no private practice. You have to intimate tentative date of your joining Prakash Netra Kendr after completion of "Fellowship" With Best Wishes (Dr. Shobhit Chawla) Medical Director” 37. If the text of the said letter is noticed, it would reveal that this was merely an offer given to the deceased. There is no material on record, either in writing or oral evidence by any of the claimants’ witnesses, to substantiate the aforesaid offer letter or the fact that the deceased accepted the said appointment. 38. The learned counsel for the claimants had made a fervent submission that the only requirement for the deceased was to intimate his tentative date of joining after completion of his services. Thus, it F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.21 of 26 should be treated that he had a firm offer in his hand. 39. Considering the text of the letter as noticed above and the fact that none of the witnesses, including the parents or the wife, came forward to make any statement that the said offer was accepted, this Court finds that the said letter is merely an offer and could not be treated as an acceptance or a binding contract so as to give any impetus to the claimants or justify taking a higher income for grant of compensation. 40. Thus, for the aforesaid reason, this Court does not find any merit in the submission of learned counsel for the claimants that merely on the basis of the said letter, the Tribunal should have accepted a higher amount of at least Rs.20,000/- per month. 41. For the aforesaid reason, the submissions of learned counsel for the claimants are turned down. 42. Be that as it may, this Court finds that insofar as the amount of Rs.10,000/- which has been taken F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.22 of 26 note of by the Tribunal is on the basis of stipend which was paid and the necessary stipend slip issued by Nethralaya has also been brought on record as paper No.C-34/38. In this light, this Court finds that the basis of income which has been taken as Rs.10,000/- per month cannot be faulted; however, the Tribunal has already granted 50% factoring for future prospects, considered the dependents, made the appropriate deduction, and has granted a compensation of Rs.20,94,925/- along with 7% interest. 43. This Court does not find that there is any error except the fact that the consortium has not been appropriately granted, inasmuch as admittedly the deceased had left behind his father, mother, and a young wife. The Tribunal has merely awarded a sum of Rs.5,000/- towards consortium, which is not appropriate, inasmuch as the wife should have been granted spouse consortium, whereas both the parents should also have been granted filial consortium in light of the decision of the Apex F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.23 of 26 Court in Magma General Insurance Co. Ltd. vs. Nanu Ram13. 44. As far as the other conventional head is concerned, a sum of Rs.5,000/- has been awarded towards the funeral expenses and the air freight charges for ferrying the body of the deceased from Coimbatore to Lucknow have been awarded separately. Nevertheless, funeral expenses of Rs.5,000/- are also on the lower side, and the same should have been awarded keeping in mind the social background of the claimants; the amount should have been at least Rs.15,000/-. No amount has been granted for the loss of estate, hence, a sum of Rs.15,000/- shall also be payable to the claimants. 45. Consequently, on these limited grounds, this Court finds that certain additions can be made to the already awarded sum of Rs.20,94,925/-. Accordingly, for the detailed reasons given hereinabove, this Court finds that the claimants should be entitled to a total sum of Rs.22,04,925/- 13 2018 SCC Online 1546 F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.24 of 26 For wife consortium =Rs.40,000/- For parents consortium =Rs.40,000/- Funeral expenses =Rs.15,000/- Loss of estate =Rs.15,000/- -------------------- On an additional sum =Rs.1,10,000/- Already awarded sum =Rs.20,94,925/- --------------------- Total =Rs.22,04,925/- 46. As far as all other findings are concerned, the same are affirmed. It is also noticed that during the pendency of the instant appeal, the father of the deceased, who was respondent No.1 in F.A.F.O. No.386 of 2014, had also expired; thus, the awarded sum is now to be distributed between respondent Nos.2 and 3. 47. It has also been informed by the counsel for the Insurance Company that the entire amount as awarded, along with up-to-date interest, was already deposited before the Tribunal in pursuance of the order passed by this Court. 48. Considering the aforesaid, any amount which may be deposited before this Court shall also be remitted to the Tribunal to be released in favour of the claimants-respondents, and the enhanced F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.25 of 26 sum, after adjusting the amount already paid, shall be taken note of and paid to the claimants within sixty days from the date of issuance. 49. For the aforesaid reasons, F.A.F.O. No.386 of 2014 is dismissed, and F.A.F.O. No.630 of 2014 is partly allowed to the above extent. The award dated 27.01.2014 is modified only to the extent of quantum as mentioned above. 50. In the facts and circumstances, costs are made easy. 51. The record of the Tribunal shall be returned forthwith. (Jaspreet Singh, J.) Order Date :- 16.07.2025 Shubhankar F.A.F.O. No.630 of 2014 & F.A.F.O. No.386 of 2014 Page No.26 of 26 Digitally signed by :- SHUBHANKAR THAKUR High Court of Judicature at Allahabad, Lucknow Bench