THE ORIENTAL INSURANCE CO LTDversusSMT. SUNEETA AND OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           FIRST APPEAL FROM ORDER No. - 3808 of 2008

The Oriental Insurance Co Ltd
                                                              .....Appellant(s)
                                   Versus
Smt. Suneeta And Others
                                                            .....Respondent(s)

Counsel for Appellant(s)         : Ramesh Singh
Counsel for Respondent(s)        : Deepak Singh, Jitendra Singh, S.K.
                                   Tripathi, Santosh Kumar Tripathi

Court No. - 54
                     HON'BLE ANIL KUMAR-X, J.

1. Learned counsel for the appellant and learned counsel for the respondents
are present.

2. This instant appeal has been preferred with a prayer to set aside the
judgment and award dated 22.10.2006 passed by the Motor Accident Claims
Tribunal/Additional Sessions Judge (SC/ST), Baghpat in M.A.C.P. No. 33 of
2006.

3. Learned counsel for the appellant submitted that the compensation has
been awarded by the learned tribunal in favour of the respondent-claimants
by ignoring certain relevant facts. The alleged incident had taken place on
11.02.2008 at about 4:00 p.m. The case of the respondent-claimants is that
the deceased, namely, Shishpal, was standing on the side of the road when
the offending Truck No. HR 58 2986, coming from the opposite direction,
hit him. It was alleged that the driver of the truck was driving the vehicle
rashly and negligently.

4. However, the site plan prepared by the Investigating Officer reveals facts
contrary to the case set up by the respondents. The said site plan indicates
that the alleged accident occurred when the deceased, while riding his
motorcycle, was crossing the road. A perusal of the site plan prepared by the
Investigating Officer makes it evident that there was also negligence on the
part of the deceased. Therefore, even if compensation was awarded in favour
of the claimants, it was incumbent upon the learned tribunal to consider the
contributory negligence of the deceased.

5. It was further submitted that, at the time of the accident, the deceased was
employed as a Gram Vikas Adhikari and the compensation was awarded by
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taking into consideration his monthly income. However, the learned tribunal
failed to take into account the fact that, after the death of the deceased, his
wife was receiving family pension and was also appointed in place of her
deceased husband under the Dying in Harness Rules. Therefore, according to
the learned counsel for the appellant, the compensation ought to have been
computed after deducting the amount of family pension and the income
being received by the claimant consequent upon the death of her husband.

6. Per contra, learned counsel for the respondent-claimants submitted that
the testimony of the eyewitness, PW-2 Uma Shankar, is explicit on the point
that the deceased, at the time of the accident, was not crossing the road but
was standing on the side of the road. He submitted that the testimony of the
eyewitness is substantive evidence and would prevail over the site plan
prepared by the Investigating Officer.

7. Heard learned counsel for the parties and perused the impugned judgment
and award. So far as the factum of the accident is concerned, the contention
raised by the appellant is bereft of merit. The site plan prepared by the
Investigating Officer is of no evidentiary value unless it is duly proved in
accordance with law. A site plan prepared by the Investigating Officer is
based either upon his own observation or upon the information furnished by
a witness. In either case, if the appellant intended to rely upon the said site
plan, it was incumbent upon him to establish the same in accordance with
law. However, no witness was produced before the learned tribunal in
support of the site plan. Hence, the said contention cannot be accepted.

8. Further, the employment of the wife of the deceased after his death under
the Dying in Harness Rules and her entitlement to receive family pension are
not factors which are required to be taken into consideration while assessing
compensation in a claim arising out of the death of a person in a motor
vehicular accident. The right of the spouse or any other family member to
receive family pension after the death of an employee and the right to obtain
employment under the Dying in Harness Rules are independent rights. Such
benefits cannot be treated as a substitute for or deducted from the
compensation payable under the Motor Vehicles Act.

9. Therefore, the financial benefits received by the claimant consequent upon
the death of the deceased, including family pension and appointment under
the Dying in Harness Rules, cannot deprive the claimants of their
independent statutory right to claim compensation under the Motor Vehicles
Act.

10. In view of the aforesaid discussion, the findings recorded by the learned
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                                    tribunal do not call for any interference by this Court. Accordingly, the
                                    appeal is dismissed.

                                    September 9, 2026
                                    Ujjawal
                                                                                          (Anil Kumar-X,J.)




Digitally signed by :-
UJJAWAL
High Court of Judicature at Allahabad