# Akhilesh Kumar Anand v. Rahul Mishra & Anr

- **Citation:** (2022) 5 ILRA 303
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-18
- **Case number:** First Appeal From Order No. 2019 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-anand-v-rahul-mishra-anr-48518
- **Pages:** 6

## Headnote

A. Civil Law - Motor Accident Act, 1988 -
Power of Claim Tribunal - Documentary
evidence - Standard of Proof - Deceased
was a teacher - Salary certificate and
salary payment register filed, yet the
Tribunal
has
not
relied
on
this
documentary evidence merely on the
304 INDIAN LAW REPORTS ALLAHABAD SERIES
ground that no concern employee was
called by the claimant to prove the salary
certificate of the deceased - Permissibility
- Held, Tribunal has taken hyper technical
view which was not required because the
compensation to be awarded under Motor
Vehicles Act, 1988 has to be assessed by
taking holistic approach as the Act is a
benevolent piece of legislation - While
deciding the claim petition under the
aforesaid act, the Tribunal should not take
hyper technical view because the standard
of proof is not equated with that of civil
litigation or criminal law - High Court recomputed the compensation by adding
50%
future
prospect
and
applying
multiplier of 17 and awarded 7.5%
interest. (Para 9, 10, 16 and 17)
B. Civil Law - Income Tax Act, 1961 -
Section 194A (3) (ix) - Withdraw of
amount of interest - Certificate of Income
Tax authority, when required - Held, if the
interest payable to claimant for any
financial
year
exceeds
Rs.
50,000/-,
insurance Co./owner is/are entitled to
deduct appropriate amount under the
head of 'Tax Deducted at Source' as
provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 - And if the amount of
interest does not exceeds Rs. 50,000/- in
any financial year, registry of this Tribunal
is directed to allow the claimants to
withdraw the amount without producing
the
certificate
from
the
concerned
Income-Tax Authority - Smt. Hansagori P.
Ladhani's case relied upon. (Para 20)
Appeal partly allowed. (E-1)
List of Cases cited:-

## Text

5 All. Akhilesh Kumar Anand Vs. Rahul Mishra & Anr.
303

9. The grounds, which are taken by
the appellants except the ground of
quantum, cannot be now agitated after a
period of 15 years. The said grounds were
available to the appellants where the
Tribunal decided the lis between the parties
namely in the year 2007. Up to 15.7.2015,
the appellants herein did not even raise oral
objection to the said award where the
Tribunal had awarded a meagre sum of Rs.
2,76,500/- whereas this Court deprecated
the same by reasoned order on the basis of
the income-tax return. The Tribunal fixed
notional income was a finding of fact and
as narrated above, even in the later part of
this second round of litigation, the Tribunal
has though considered the judgment of
Pranay Sethi (supra). The respondents may
have been now tired as 20 years of elapsed
from the date they lost their bread-winner.
The minors have become major and,
therefore, may be the respondents might
not have filed what is known as crossobjection or oral cross-objection.

10. The appeal fails and is dismissed.
We deprecate the practice of Union of India
agitating a ground which has attained
finality under the guise that the Tribunal
has committed error in not deciding the
issue of negligence. It is stated by the
appellant that the entire amount has been
deposited. We request the registry of the
Tribunal to disburse the said amount in
view of A.V. Padma V/s. Venugopal,
Reported in 2012 (1) GLH (SC), 442. The
record be sent back to the Tribunal.

11. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private Ltd. v. Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation in
F.D.R. is to safeguard the interest of the
claimants. As 20 years have elapsed, the
amount be deposited in the Saving Account
of claimants in Nationalized Bank without
F.D.R. We should have dismissed this
appeal with costs as it is an after thought to
challenge the award on grounds which had
attained finality and there is a delay of
considerable time but as claimants have not
filed
cross-objection,
but
we
award
litigation fees of Rs. 10,000/- to the
claimants for this protracted litigation.

12. We are thankful to both the
counsels for getting this matter disposed of.

13. Records be sent back to the
Tribunal.
----------
(2022)05ILR A303
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.04.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 2019 of 2021

Akhilesh Kumar Anand ...Appellant
Versus
Rahul Mishra & Anr. ...Respondents

Counsel for the Appellant:
Sri Pradip Kumar Shukla

Counsel for the Resondents:
Sri Ajay Singh

A. Civil Law - Motor Accident Act, 1988 -
Power of Claim Tribunal - Documentary
evidence - Standard of Proof - Deceased
was a teacher - Salary certificate and
salary payment register filed, yet the
Tribunal
has
not
relied
on
this
documentary evidence merely on the
304 INDIAN LAW REPORTS ALLAHABAD SERIES
ground that no concern employee was
called by the claimant to prove the salary
certificate of the deceased - Permissibility
- Held, Tribunal has taken hyper technical
view which was not required because the
compensation to be awarded under Motor
Vehicles Act, 1988 has to be assessed by
taking holistic approach as the Act is a
benevolent piece of legislation - While
deciding the claim petition under the
aforesaid act, the Tribunal should not take
hyper technical view because the standard
of proof is not equated with that of civil
litigation or criminal law - High Court recomputed the compensation by adding
50%
future
prospect
and
applying
multiplier of 17 and awarded 7.5%
interest. (Para 9, 10, 16 and 17)
B. Civil Law - Income Tax Act, 1961 -
Section 194A (3) (ix) - Withdraw of
amount of interest - Certificate of Income
Tax authority, when required - Held, if the
interest payable to claimant for any
financial
year
exceeds
Rs.
50,000/-,
insurance Co./owner is/are entitled to
deduct appropriate amount under the
head of 'Tax Deducted at Source' as
provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 - And if the amount of
interest does not exceeds Rs. 50,000/- in
any financial year, registry of this Tribunal
is directed to allow the claimants to
withdraw the amount without producing
the
certificate
from
the
concerned
Income-Tax Authority - Smt. Hansagori P.
Ladhani's case relied upon. (Para 20)
Appeal partly allowed. (E-1)
List of Cases cited:-
1. Sarla Verma Vs Delhi Transport Corp.; (2009)
6 SCC 121
2. National Insurance Co. Ltd. Vs Pranay Sethi &
ors. 2017 0 Supreme (SC) 1050
3. Anita Sharma Vs New India Assurance Co.
Ltd.; 2021 (1) SCC 171
4. Vimla Devi & ors. Vs National Insurance Co.
Ltd. & anr.; (2019) 2 SCC 186
5. CMA No. 1482 of 2017; Reliance General
Insurance Co. Ltd. Vs Subbulakhmi & ors.
decided by Madhya Pradesh High Court
6. Bimla Devi & ors. Vs Himachal Road
Transport Corp. & ors. 2009 (2013) SCC 530
7. Lakshmi Devi Devi Vs Mohd. Tabbar & ors.
2008 (2) TAC 394 (SC)
8. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (S.C.)
(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal challenges the
judgement and award dated 10.01.2019
passed
by
Motor
Accident
Claim
Tribunal/Additional District Judge, Court
No.11, Kanpur Nagar in MACP No.370 of
2014 (Akhilesh Kumar Anand Vs. Rahul
Mishra and others), whereby the learned
Tribunal has awarded Rs.6,82,000/- as
compensation on account of death of the
wife of the claimant/appellant in a road
accident with rate of interest 7% per
annum.

2. Heard Shri Pradip Kumar Shukla,
learned counsel for the appellant and Shri
Ajay Singh, learned counsel appearing on
behalf of respondents.

3. Brief facts of the case are that a
claim petition was filed by appellant on
account of death of his wife in a road
accident before the learned Tribunal, in
which averments are made that on
04.11.2011 at about 10:30 am the deceased
was standing besides road near bus stop
within the jurisdiction of police station-
Kotwali, District- Fatehpur. All of sudden a
Tata Safari bearing No.UP 78 BH 2707
came from behind, which was being driven
rashly and negligently by its driver. The
aforesaid vehicle hit the deceased from
behind and the deceased sustained serious
5 All. Akhilesh Kumar Anand Vs. Rahul Mishra & Anr.
305
injuries. She died on 10.11.2011 during
treatment in hospital.

4. The owner and insurance company
of the offending vehicle filed their
respective statements, in which they denied
the accident. Learned Tribunal held that
driver of the offending vehicle was
negligent and responsible for the accident
and awarded the said compensation.

5. In this appeal, the accident is not in
dispute. The liability of the insurance
company to pay the compensation is also
not in dispute. The issue of negligence has
attained finality. Now there remains only
issue of quantum of compensation to be
decided in this appeal.

6. Learned counsel for the appellant
has submitted that the learned Tribunal has
not awarded just compensation. The age of
the deceased was 30 years and she was
teacher
in
Rajkiya
Balika
Ucchatar
Madhyamik Vidyalal, Fatehpur. Her salary
was Rs.28,381 per month but the learned
Tribunal has not relied on the documentary
evidence with regard to the salary of the
deceased nor the oral evidence is believed
and consequently learned Tribunal has
assumed the income of the deceased at
Rs.3,000/- per month only. It is also
submitted that the appellant has filed salary
certificate which is duly attested by District
Inspector of Schools yet it is not believed
by learned Tribunal on the ground that the
aforesaid certificate is not proved by
calling the concerned employee of the
school.

7. Learned counsel for the insurance
company
vehemently
objected
the
submissions made by the appellant and
submitted that merely the filing of salary
certificate is not enough unless it is got
proved by summoning the concerned
employee of the school with record.
Hence, the appellant is failed to prove the
income of the deceased and the learned
Tribunal has rightly assessed the income
of the deceased at Rs.3,000/- per month.
There is no illegality or infirmity in the
impugned judgement which calls for any
interference by this Court.

8. With regard to the quantum of
compensation, is in relation with the
income of the deceased who admittedly
was an educated and highly qualified
person was a teacher and not laborer the
learned Tribunal has added 50% of
income for calculating future loss of
income and has deducted 1/3 for personal
expenses
of
the
deceased.
Learned
Tribunal has rightly applied the multiplier
of 17 as envisaged in the judgement of
Hon'ble Apex Court in Smt.Sarla Verma
vs. Delhi Transport Corporation [2009
(2) TAC 677 (SC)] . Learned Tribunal has
also awarded non-pecuniary damages at
Rs.70,000/- as per judgement of Apex
Court in National Insurance Company
Limited Vs. Pranay Sethi and Others,
2017 0 Supreme (SC) 1050. Learned
Tribunal has granted the rate of interest
7% per annum. It is submitted by learned
counsel for the appellant that rate of
interest should be enhanced.

9. As far as income of the deceased is
concerned,
the
learned
Tribunal
has
altogether disbelieved the documentary as
well as oral evidence in this regard.
Although, the salary certificate and the
copy of salary payment register are on the
record yet the Tribunal has not relied on
this documentary evidence merely on the
ground that no concerned employee was
called by the claimant to prove the salary
certificate of the deceased. Hence, it was
306 INDIAN LAW REPORTS ALLAHABAD SERIES
held that the same cannot be read in
evidence and was totally discarded.

10. In our view the learned Tribunal
has taken hyper technical view which was
not required because the compensation to
be awarded under Motor Vehicles Act,
1988 has to be assessed by taking holistic
approach as the Act is a benevolent piece of
legislation. While deciding the claim
petition under the aforesaid act, the
Tribunal should not take hyper technical
view because the standard of proof is not
equated with that of civil litigation or
criminal law.

11. The Apex court decision in
Anita
Sharma
Vs.
New
India
Assurance Company Ltd, 2021 (1)
SCC 171 and Vimla Devi and others
Vs.
National
Insurance
Company
Limited and another, (2019) 2 SCC
186, has held that strict proof of all facts
is not necessary to decide the motor
accident claim petition. The Tribunal
should take the holistic view of the
matter and the claimant has to establish
his/her case on the touchstone of
preponderance of probability.

12. The Division Bench of Madhya
Pradesh High Court in Reliance General
Insurance Co. Ltd. Vs. Subbulakhmi and
others passed in CMA No.1482 of 2017
has also expressed the same view with
regard to the standard of proof.

13. In Bimla Devi and others Vs.
Himachal Road Transport Corporation
and others 2009 (2013) SCC 530, also the
Apex Court held that 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.

14. Learned Tribunal has discarded
the documentary evidence, filed by the
appellant with regard to the salary of the
deceased. Learned Tribunal could have
invoked the powers under Section 169 of
the Motor Vehicles Act, 1988, which gives
claims Tribunal all the powers of Civil
Courts for the purpose of taking evidence,
and enforcing the attendance of the
witnesses and compel the discovery and
proof of documents and material objects. If
the learned Tribunal wanted to get the
salary certificate and payment register to be
proved, it could have suo moto summoned
the concerned employee of the school with
original record because it is the duty of the
Tribunal to award ''just compensation'.

15. In the case on hand, the appellant
has filed the salary certificate of the
deceased, which is issued by the Principal
of the concerned school, in which the
deceased was working as a teacher. In the
said certificate the monthly salary of the
deceased is shown at Rs.28,581/-. It is also
pertinent to mention that District Inspector
of School, Fatehpur has sent to the Tribunal
a
copy
of
salary
payment
register,
pertaining to the deceased, under his own
signature
vide
letter
No.4895
dated
27.11.2018. The copy of salary payment
register is also attested by District Inspector
of School. Even though, the learned
Tribunal has not believed this evidence,
which is not the correct appreciation the
evidence. Learned Tribunal has itself
mentioned in impugned judgement that the
salary certificate is filed in original. There
is no contention of insurance company that
the salary certificate and payment register
are fake. The fact that the deceased was
working as a teacher is established on
record, yet the learned Tribunal has
committed an error in equating the
deceased with the laborer by assuming the
5 All. Akhilesh Kumar Anand Vs. Rahul Mishra & Anr.
307
income of the deceased at Rs.3,000/- per
month. Learned Tribunal has relied on the
judgement of Hon'ble Apex Court in
Lakshmi Devi Devi Vs. Mohd. Tabbar
and others 2008 (2) TAC 394 (SC) but
this decision cannot be applied to the facts
of the case in hand because in our case this
fact is established on record that deceased
was a teacher and was earning and not a
laborer. Hence, we are of the considered
view that learned Tribunal has fallen in
error by equating the deceased with the
laborer. The salary certificate shows the
salary of the deceased at Rs.28,381/- per
month which is confirmed by the copy of
payment register, which also shows the
payment of salary of the deceased at
Rs.28,381/- per month. There is no other
dispute except the rate of interest.

16. Hence, the total compensation, in
view of the above discussions, payable to
the appellants-claimants is being computed
herein below:

i.
Income
of
the
deceased

Rs.28,381/-
ii.
Percentage towards
Future-Prospects
(50%)
Rs.28,381/- +
50%
Rs.14,190/-
iii.
Total Income
Rs.28,381/-+
Rs.14,190/-
Rs.42,571/-
iv.
Income after 1/3
deduction
for
personal expenses
Rs.42,571/- -
Rs.14,190/-
Rs.28,381/-
v.
Annual income
Rs.28,381/- x
12
Rs.3,40,572/-
vi.
Multiplier
applicable
17

vii.
Loss of dependency Rs.3,40,572/-
x 17
Rs.57,89,724/-
viii. Amount under Nonpecuniary Heads

Rs.70,000/-
ix
Total
Compensation
Rs.57,89,724
/-
+Rs.70,000/-

Rs.58,59,724/-

17. As far as issue of rate of interest is
concerned, it should be 7.5% in view of the
latest decision of the Apex Court in
National Insurance Co. Ltd. Vs. Mannat
Johal and Others, 2019 (2) T.A.C. 705
(S.C.) wherein the Apex Court has held as
under:

"13.
The
aforesaid
features
equally apply to the contentions urged on
behalf of the claimants as regards the rate
of interest. The Tribunal had awarded
interest at the rate of 12% p.a. but the same
had been too high a rate in comparison to
what is ordinarily envisaged in these
matters. The High Court, after making a
substantial enhancement in the award
amount, modified the interest component at
a reasonable rate of 7.5% p.a. and we find
no reason to allow the interest in this
matter at any rate higher than that allowed
by High Court."

18. Learned Tribunal has awarded rate
of interest as 7% per annum but we are
fixing the rate of interest as 7.5% in the
light of the above judgment.

19. In view of the above, the appeal is
partly allowed. Judgment and award
passed by the Tribunal shall stand modified
to the aforesaid extent. The insurance
company shall deposit the amount within a
period of 8 weeks from today with interest
at the rate of 7.5% from the date of filing of
the claim petition till the amount is
deposited. The amount already deposited be
deducted from the amount to be deposited.

20. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani vs. The
Oriental
Insurance
Company
Ltd.,
[2007(2) GLH 291] and this High Court in
total amount of interest, accrued on the
308 INDIAN LAW REPORTS ALLAHABAD SERIES
principal amount of compensation is to be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimants to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
and in First Appeal From Order No.2871 of
2016 (Tej Kumari Sharma v. Chola
Mandlam M.S. General Insurance Co.
Ltd.)
decided
on
19.3.2021
while
disbursing the amount.

21. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex
Court in Bajaj Allianz General Insurance
Company Privae Ltd. vs. Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation is to
safeguard the interest of the claimants.
Since long time has elapsed, the amount be
deposited in the Saving Bank Account of
claimant(s) in a nationalized Bank without
F.D.R.
----------
(2022)05ILR A308
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 2386 of 2013
&
First Appeal From Order No. 2391 of 2013

Panchratni & Ors. ...Appellants
Versus
Smt. Manju Singh & Ors. ...Respondents

Counsel for the Appellants:
Sri Rishi Kant Rai, Sri S.K. Sharma, Sri
Shailendra Sharma

Counsel for the Resondents:
Sri Nishant Mehrotra, Sri S.N. Yadav, Sri
Sanjay K. Singh, Sri Sanjay Kumar

A. Civil Law - Motor Accident Act, 1988 -
Section 169 - Claim - Compensation -
Documentary evidence - Proof - 42 years
old person died in accident, was Head
Master - Tribunal has brushed aside the
document on basis that it is not a public
document
and
cannot
be
taken
in
evidence and hence considers the income
of deceased as that of a labourer - Validity
challenged - Held, the document may not
be public document, if the tribunal had
doubt, it could invoke procedure u/s 169
and could suo moto summoned the officer
who had issued the certificate but without
any
rebuttal
evidence
by
owner
or
insurance Co. could not have discarded
the document and decided that deceased
who was a person in vocation was
equated with labourer - High Court recomputed compensation by determining
the income of deceased Rs. 27,000/- and
adding
30%
future
prospects
and
multiplier of 14 and awarded 7.5%
interest. (Para 18, 20 and 22)

B. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,
when it can be applied - Negligence means
failure to exercise care towards others
which a reasonable and prudent person
would in a circumstance or taking action
which such a reasonable person would not.
Negligence can be both intentional or