# Kumari Anju & Ors v. Suresh Kumar Sachan & Ors

- **Citation:** (2021) 9 ILRA 775
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-02
- **Case number:** F.A.F.O. No. 3244 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumari-anju-ors-v-suresh-kumar-sachan-ors-47396
- **Pages:** 13

## Headnote

Sri Amaresh Sinha, Sri Saurabh Srivastava

Motor accident Claim-issue of negligence
in dispute-head on collusion-deceased a
non tort feasor-deduction of 25 % for
negligence
is
bad-reduced
to
10%-
compensation enhanced.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,804 of 40,964. This is a partial read: ask again with offset=39804 for what follows._

9 All Kumari Anju & Ors. Vs. Suresh Kumar Sachan & Ors.
775
----------
(2021)09ILR A775
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIVEK VARMA, J.

F.A.F.O. No. 3244 of 2007

Kumari Anju & Ors. ...Appellants
Versus
Suresh Kumar Sachan & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Deepak Singh, Sri C.K. Parekh, Sri Arpit
Agarwal

Counsel for the Respondents:
Sri Amaresh Sinha, Sri Saurabh Srivastava

Motor accident Claim-issue of negligence
in dispute-head on collusion-deceased a
non tort feasor-deduction of 25 % for
negligence
is
bad-reduced
to
10%-
compensation enhanced.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Bajaj Allianz General Insurance Co.Ltd. Vs
Smt. Renu Singh & ors., First Appeal From Order
No. 1818 of 2012, decided on 19.7.2016

2. Khenyei Vs New India Assurance Co. Ltd. &
ors., 2015 LawSuit (SC) 469

3. Pramodkumar Rasikbhai Jhaveri Vs Karmasey
Kunvargi Tak & ors. decided on 05.08.2002 in
Appeal (Civil) No. 5436 of 1994

4. Raj Rani & ors. Vs Oriental Insurance Co. Ltd.
& ors. decided on 06.05.2009 in Civil Appeal No.
33-3318 of 2009 (Arising out of SLP (C) Nos.
2792-27793 of 2008
5. Archit Saini Vs Oriental Insurance Co. Ltd. &
ors., 2018 ) AIR (SC) 1143

6. Montford Brothers of St. Gabriel & anr. Vs
United India Insurance & anr., 2014 1 ACC 461

7. Gujarat State Road Transport Corporation,
Ahmedabad Vs Ramanbhai Prabhatbhai

8. National Insurance Co. Ltd. Vs Birender &
ors., 2020 LawSuit (SC) 26

9. Uttar Pradesh State Road Transport Corp. Vs
Tara Devi, 1995 LawSuit (All) 13,

10. Padma Devi Vs .P. State Road Transport
Corporation, 1988 LawSuit (All) 235

11. Malarvizhi & ors. Vs United India Insurance
Co. Ltd. & anr., 2020 (4) SCC 228

12. United India Insurance Co. Ltd. Vs Indiro0
Devi & ors., 2018 (7) SCC 715.

13. The Oriental Insurance Co. Ltd. Vs Mangey
Ram & ors., 2019 0 Supreme (All) 1067

14. New India Assurance Co. Vs Urmila Shukla
MANU/SCOR/24098/2021

15. Kirti & ors. Vs Oriental Insurance Co. Ltd.
reported in 2021(1) TAC 1

16. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (S.C.)

17. A.Vs Padma Vs Venugopal, Reported in 2012
(1) GLH (SC), 442

18. Smt. Hansaguti P. Ladhani VsThe Oriental
Insurance Co. Ltd., reported in 2007(2) GLH 291

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker,J.
&
Hon'ble Vivek Varma, J.)

1. Heard Sri Deepak Singh, learned
counsel for the appellant, Sri Amaresh
Sinha and Sri Saurabh Srivastava, learned
counsel for the respondent insurance
776 INDIAN LAW REPORTS ALLAHABAD SERIES
companies none for owner or driver of
truck. perused the judgment and order
impugned.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 22.8.2007 passed by Motor
Accident Claims Tribunal, Varanasi in
M.A.C.P. No.151 of 2004 awarding a sum
of Rs.14,08,000/- with interest at the rate of
6% as compensation for death of four
family members of the claimants who lost
their family members in the fateful accident
.

3. The accident is not in dispute. The
issue of negligence decided by the Tribunal
is in dispute. The respondent has not
challenged the liability imposed on them.
The issues to be decided are, the quantum
of compensation awarded and whether the
deduction of 25% for negligence of driver
of maruti car could be deducted from the
compensation awarded to the heirs of non
tort feasor. The legal heirs have lost mother
and father and appellant no.4 has lost her
son and daughter-in-law and, therefore,
even if we consider the matter from the
angle of negligence of driver to the tune of
25 % for other deceased who have passed
away, it would not be a case of contributory
negligence but it would be a case of
composite negligence and, therefore, no
amount could have deducted by the
Tribunal from the compensation awarded
for the death of non tort feasors, namely,
passengers. The fact that the provisions of
Section 166 of the Motor Vehicles Act,
1988 (hereinafter referred to as the Act) has
been interpreted to take within its sweep
the term ''legal representative' and not
dependent. A person would be legal
representative/legal heirs even if he is not
dependent on the deceased. A person may
be dependent as also legal heir (legal
representative). This distinction will have
to be decided by us as for the death of one
of deceased, the Tribunal has rejected the
claim. Unfortunate part of this litigation is
that the legal heirs, i.e, aged mother and
mother-in-law of the deceased, two minor
children and one adolescent sister were
advised to file one claim petition for death
of four people. These aspects will have to
be looked into as though it may appear very
simple but there is complexity weaved into
this litigation. The question is could the
Tribunal dismiss the claim petition if
separate claim petitions were filed for four
deaths by legal representative whether they
were dependent or not. Thus, we have to
decide two issues compensation awarded
and liability based on negligence.

4. Facts in brevity as per claim
petition are that on 13.6.2004 at about 5.30
am Ram Dular Dubey, Pravin @ Pintu
Dubey, Vidyawati Devi and Manju Devi
boarding
in
Maruti
Van
bearing
Registration No. UP 65 Y 4968 were going
to offer prayers to Vindhyavasini Devi and
when they reached near Village Khodhwa,
P.S. Mirzamurad, driver of truck bearing
Registration No. UP 78 A N 0069 driving
rashly and negligently came from the
opposite side and dashed with the said
maruti van on account of which Ram Dular
Dubey and Pravin Kumar Dubey died on
the spot while Vidyawati Devi and Manju
Devi died during the treatment in Kabir
Chaura Hospital. At the time of accident,
age of deceased Ram Dular Dubey was
about 47 years; age of deceased Smt.
Vidyawati was about 45 years; deceased
Pravin Dubey and Manju Dubey were aged
about 25 years.

5. It is submitted by learned counsel
for the appellants that though it was head
on collusion it was due to rash and
9 All Kumari Anju & Ors. Vs. Suresh Kumar Sachan & Ors.
777
negligent driving of the driver of the truck
in which four persons traveling in maruti
van died leaving behind them mother of the
deceased namely Ramwanti Devi (old
widow lady), Pramod Kumar Dubey,
second son of deceased (minor) and
another minor son Sandip Kumar Dubey
aged about 12 years and unmarried
daughter of deceased being Anju Dubey
aged about 20 years who were the legal
representatives of all the four deceased .
The tribunal found driver of the truck to be
negligent and fixed liability of 75%. It is
submitted that the Tribunal wrongly
recorded contributory negligence of the
driver of the maruti van to the tune of 25%.
In fact no evidence was led in defense to
prove contributory negligence.It is further
submitted that at the time of accident,
deceased Ram Dular Dubey was working
on the post of Manager, Kashi Gramin
Bank, Branch Lahartara and his income
was RS 21,014.60 per mensem. Deceased
Vidyawati was a skilled housewife whose
income was assessed by the tribunal to be
Rs.2,000/-
per
mensem.
Approximate
income deceased Pravin Kumar Dubey,
who was said to have been selected for
B.T.C.
was
assessed
to
be
earning
Rs.7,000/-
per
mensem.
Income
of
deceased Manju Devi, who was pursuing
Ph.D. was assessed to be Rs.12,000/- per
mensem. It is submitted that the Tribunal
wrongly assessed the income and awarded
meagre amount which may be enhanced. It
also did not grant any amount under the
head of future prospects

6. As against this, learned counsel for
the Insurance Company has submitted that
the award does not require any interference.
The Tribunal has not committed any error
in not granting the future loss of income.It
is further submitted that the tribunal has
been liberal in considering the negligence
as the impact and site plan would show that
the van was driven rashly and negligently.

7. The Apex Court in Sudarsan Puhan
Vs Jayanta K Mohanty and Another Etc.
AIR2018 SC 4662 and U.P.S.R.T.C. Vs.
Km Mamta and Others AIR2016 SCC 948,
wherein it has been held that that all the
issues raised will have to be decided.
Having heard the learned counsels for the
parties,
issue
of
negligence
and
compensation will have to be considered
from the perspective of the law laid down.

In view of the questions raised
by the claimants, issue of negligence
would have to be decided.

8. The term 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 accidental which
is normally accidental. More particularly, it
connotes reckless driving and the injured
must always prove that the either side is
negligent. If the injury rather death is
caused by something owned or controlled
by the negligent party then he is directly
liable otherwise the principle of "res ipsa
loquitur" meaning thereby "the things
speak for itself" would apply.

9. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or is
author of the accident would be liable for
his contribution to the accident having
taken place.

10. The Division Bench of this Court
in First Appeal From Order No. 1818 of
2012 ( Bajaj Allianz General Insurance
Co.Ltd. Vs. Smt. Renu Singh And
778 INDIAN LAW REPORTS ALLAHABAD SERIES
Others) decided on 19.7.2016 has held as
under :

"16. Negligence means failure to
exercise required degree of care and
caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence.
It is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one. It is rather a
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no
legal consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

17. It would be seen that burden
of proof for contributory negligence on the
part of deceased has to be discharged by
the opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection
where two roads cross each other, it is the
duty of a fast moving vehicle to slow down
and if driver did not slow down at
intersection, but continued to proceed at a
high speed without caring to notice that
another vehicle was crossing, then the
conduct of driver necessarily leads to
conclusion that vehicle was being driven by
him rashly as well as negligently.

18. 10th Schedule appended to
Motor
Vehicle
Act
contain
statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation
clearly directs that the driver of every
motor vehicle to slow down vehicle at every
intersection or junction of roads or at a
turning of the road. It is also provided that
driver of the vehicle should not enter
intersection or junction of roads unless he
makes sure that he would not thereby
endanger
any
other
person.
Merely,
because driver of the Truck was driving
vehicle on the left side of road would not
absolve him from his responsibility to slow
down vehicle as he approaches intersection
of roads, particularly when he could have
easily seen, that the car over which
deceased was riding, was approaching
intersection.

19. In view of the fast and
constantly increasing volume of traffic,
motor vehicles upon roads may be
regarded to some extent as coming within
the principle of liability defined in Rylands
V/s. Fletcher, (1868) 3 HL (LR) 330. From
the point of view of pedestrian, the roads of
this country have been rendered by the use
of motor vehicles, highly dangerous. 'Hit
and run' cases where drivers of motor
vehicles who have caused accidents, are
unknown. In fact such cases are increasing
in number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the case
may be, should be entitled to recover
damages if principle of social justice
should have any meaning at all.

20. These provisions (sec.110A
and sec.110B of Motor Act, 1988) are not
merely
procedural
provisions.
They
9 All Kumari Anju & Ors. Vs. Suresh Kumar Sachan & Ors.
779
substantively affect the rights of the parties.
The right of action created by Fatal
Accidents Act, 1855 was 'new in its species,
new in its quality, new in its principles. In
every way it was new. The right given to
legal representatives under Act, 1988 to file
an application for compensation for death
due to a motor vehicle accident is an
enlarged one. This right cannot be hedged
in by limitations of an action under Fatal
Accidents Act, 1855. New situations and
new dangers require new strategies and
new remedies.

21. In the light of the above
discussion, we are of the view that even if
courts may not by interpretation displace
the principles of law which are considered
to be well settled and, therefore, court
cannot dispense with proof of negligence
altogether in all cases of motor vehicle
accidents, it is possible to develop the law
further on the following lines; when a
motor
vehicle
is
being
driven
with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits (per three-Judge Bench in Jacob
Mathew V/s. State of Punjab, 2005 0
ACJ(SC) 1840).

22. By the above process, the
burden of proof may ordinarily be cast on
the defendants in a motor accident claim
petition to prove that motor vehicle was
being driven with reasonable care or that
there is equal negligence on the part the
other side."

 emphasis added

11. The Apex Court in Khenyei Vs.
New India Assurance Company Limited
& Others, 2015 LawSuit (SC) 469 has
held as under:

"4. It is a case of composite
negligence where injuries have been
caused to the claimants by combined
wrongful act of joint tort feasors. In a case
of accident caused by negligence of joint
tort feasors, all the persons who aid or
counsel or direct or join in committal of a
wrongful act, are liable. In such case, the
liability is always joint and several. The
extent of negligence of joint tort feasors in
such a case is immaterial for satisfaction of
the claim of the plaintiff/claimant and need
not be determined by the by the court.
However, in case all the joint tort feasors
are before the court, it may determine the
extent of their liability for the purpose of
adjusting inter-se equities between them at
appropriate stage. The liability of each and
every joint tort feasor vis a vis to
plaintiff/claimant cannot be bifurcated as it
is joint and several liability. In the case of
composite negligence, apportionment of
compensation between tort feasors for
making payment to the plaintiff is not
permissible as the plaintiff/claimant has the
right to recover the entire amount from the
easiest targets/solvent defendant.

14. There is a difference between
contributory and composite negligence. In
the case of contributory negligence, a
person who has himself contributed to the
extent cannot claim compensation for the
injuries sustained by him in the accident to
the extent of his own negligence;whereas in
the case of composite negligence, a person
who has suffered has not contributed to the
accident but the outcome of combination of
negligence of two or more other persons.
This Court in T.O. Anthony v. Karvarnan
& Ors. [2008 (3) SCC 748] has held that in
case of contributory negligence, injured
780 INDIAN LAW REPORTS ALLAHABAD SERIES
need
not
establish
the
extent
of
responsibility
of
each
wrong
doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong doer separately. It is only in the case
of contributory negligence that the injured
himself has contributed by his negligence
in the accident. Extent of his negligence is
required to be determined as damages
recoverable by him in respect of the
injuries have to be reduced in proportion to
his contributory negligence. The relevant
portion is extracted hereunder :

"6. 'Composite negligence' refers to
the negligence on the part of two or more
persons. Where a person is injured as a result
of negligence on the part of two or more
wrong doers, it is said that the person was
injured
on
account
of
the
composite
negligence of those wrong-doers. In such a
case, each wrong doer, is jointly and severally
liable to the injured for payment of the entire
damages and the injured person has the
choice of proceeding against all or any of
them. In such a case, the injured need not
establish the extent of responsibility of each
wrong-doer separately, nor is it necessary for
the court to determine the extent of liability of
each wrong-doer separately. On the other
hand where a person suffers injury, partly due
to the negligence on the part of another person
or persons, and partly as a result of his own
negligence, then the negligence of the part of
the injured which contributed to the accident
is referred to as his contributory negligence.
Where the injured is guilty of some negligence,
his claim for damages is not defeated merely
by reason of the negligence on his part but the
damages recoverable by him in respect of the
injuries stands reduced in proportion to his
contributory negligence.

7. Therefore, when two vehicles
are involved in an accident, and one of the
drivers claims compensation from the other
driver alleging negligence, and the other
driver denies negligence or claims that the
injured claimant himself was negligent,
then it becomes necessary to consider
whether the injured claimant was negligent
and if so, whether he was solely or partly
responsible for the accident and the extent
of his responsibility, that is his contributory
negligence. Therefore where the injured is
himself partly liable, the principle of
'composite negligence' will not apply nor
can there be an automatic inference that
the negligence was 50:50 as has been
assumed in this case. The Tribunal ought to
have examined the extent of contributory
negligence of the appellant and thereby
avoided
confusion
between
composite
negligence and contributory negligence.
The High Court has failed to correct the
said error."

This
Court
in
Challa
Bharathamma &Nanjappan (supra) has
dealt with the breach of policy conditions
by the owner when the insurer was asked to
pay the compensation fixed by the tribunal
and the right to recover the same was given
to the insurer in the executing court
concerned if the dispute between the
insurer and the owner was the subjectmatter of determination for the tribunal
and the issue has been decided in favour of
the insured. The same analogy can be
applied to the instant cases as the liability
of the joint tort feasor is joint and several.
In the instant case, there is determination
of inter se liability of composite negligence
to the extent of negligence of 2/3rd and
1/3rd of respective drivers. Thus, the
vehicle - trailor-truck which was not
insured with the insurer, was negligent to
the extent of 2/3rd. It would be open to the
insurer being insurer of the bus after
making payment to claimant to recover
9 All Kumari Anju & Ors. Vs. Suresh Kumar Sachan & Ors.
781
from the owner of the trailor-truck the
amount to the aforesaid extent in the
execution proceedings. Had there been no
determination of the inter se liability for
want of evidence or other joint tort feasor
had not been impleaded, it was not open to
settle such a dispute and to recover the
amount in execution proceedings but the
remedy would be to file another suit or
appropriate proceedings in accordance
with law.

What
emerges
from
the
aforesaid discussion is as follows :

7. (i) In the case of composite
negligence, plaintiff/claimant is entitled to
sue both or any one of the joint tort feasors
and to recover the entire compensation as
liability of joint tort feasors is joint and
several.

8. (ii) In the case of composite
negligence, apportionment of compensation
between two tort feasors vis a vis the
plaintiff/claimant is not permissible. He
can recover at his option whole damages
from any of them.

9. (iii) In case all the joint tort
feasors have been impleaded and evidence
is sufficient, it is open to the court/tribunal
to determine inter se extent of composite
negligence
of
the
drivers.
However,
determination of the extent of negligence
between the joint tort feasors is only for the
purpose of their inter se liability so that
one may recover the sum from the other
after making whole of payment to the
plaintiff/claimant to the extent it has
satisfied the liability of the other. In case
both of them have been impleaded and the
apportionment/ extent of their negligence
has been determined by the court/tribunal,
in main case one joint tort feasor can
recover the amount from the other in the
execution proceedings.

10.
(iv)
It
would
not
be
appropriate for the court/tribunal to
determine
the
extent
of
composite
negligence of the drivers of two vehicles in
the absence of impleadment of other joint
tort feasors. In such a case, impleaded joint
tort feasor should be left, in case he so
desires, to sue the other joint tort feasor in
independent proceedings after passing of
the decree or award."
 emphasis added

12. The decision of the Apex Court in
Khenyei (Supra) has laid down one further
aspect about considering the negligence
more
particularly
composite
and
contributory negligence.

13. The judgments of Pramodkumar
Rasikbhai
Jhaveri
Vs.
Karmasey
Kunvargi Tak and others decided on
05.08.2002 in Appeal (Civil) No. 5436 of
1994, (2) Raj Rani and others Vs.
Oriental Insurance Company Limited
and others decided on 06.05.2009 in Civil
Appeal No. 33-3318 of 2009 (Arising out
of SLP (C) Nos. 2792-27793 of 2008) and
(3) Archit Saini Vs. Oriental Insurance
Company Ltd. And others, 2018 ) AIR
(SC) 1143, will also permit us to revaluate
the percentage of the negligence of the
deceased. The Tribunal has held that the
deceased too was negligent in driving the
vehicle.

14. It is an admitted position of fact
that two vehicles involved in accident, i.e.,
car and truck. Accident occurred at 5.30
a.m. which proved fatal to Ram Dulare and
Pravin Kumar Dubey who succumbed to
the injuries on the spot while Vidyawati
and Manju Devi died during the treatment.
782 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Factual data as culled out from the
Judgment of the Tribunal goes to show that
the Tribunal has given its reasoning on issue
nos. 1 and 2. The driver and owner of the
truck have not disputed the accident having
taken place but they have come out with a
new plea that the truck was stationary and
Maruti car was being plied and coming from
Varanasi at an exorbitant speed. Claimant
Anju-PW1 was not an eye witness. The
accident occurred at 5.30 a.m is also not in
dispute. P.W. 2 Rakesh Kumar Upadhyay has
been examined who has opined that he, Ram
Dular Dubey, Pravin, Vidyawati and Manju
Devi were in the car and were going to
worship at the temple. The driver of the truck
drove the vehicle rashly and negligently, first
dashed one Indica car and then came and
dashed maruti car on front side whereby
death of Ram Dular and Pravin was caused.
He was also injured as he was in the said
vehicle and he was admitted in BHU under
Dr. Lahri but he has not filed any claim
petition. Unfortunately, police has not shown
him as a witness. It is an admitted position of
fact that the driver of the truck after filing
reply did not step into the witness box. The
learned Tribunal has held the driver of the
truck negligent 75 per cent. Though the
witnesses have conveyed that the truck
dashed with Indica car after trying to
overtake the Indica car. Unfortunately, as the
site plan did not show from where Indica car
was procured. The learned Judge observed at
page 35 as under:-

"bu ifjfLFkfr;ksa esa tcfd vkeus lkeus ls
lqcg ls 5-30 cts okgu tk jgs Fks rks ;fn ek:rh
dkj pkyd Hkh lko/kkuh cjrrk rks Vad dks tks
bf.Mdk dkj ls cM+h xkM+h gS ;fn bf.Mdk dkj ds
ihNs tk jgh Fkh rks ek:rh dkj pkyd dks nwj ls gh
fn[k ldrh Fkh vkSj og lko/kkuh cjrdj dfFkr
nq?kZVuk dks cpk ldrk Fkk^^

16. It is nobody's case, hence, we reevaluate negligence at 10 per cent of the
driver. Deceased Pravin was the driver of
the car who is the brother of Anju. Pradeep
Kumar and Sandeep Kumar, were children
of Ram Dular Dubey and Ramvanti Devi
aged about 65 years were the mother of
Ram Dular Dubey who died in the
accident. Therefore, as far as the claim of
age of Ram Dular Dubey, the matter would
be of a person who can be said to have not
contributed the accident having taken
place. The heirs of Vidyawati Devi would
also be heirs of a non contributor.
Vidyawati and Ram Dular Debey were
husband and wife. Manju Devi was the
widow of Pravin Dubey and appellants are
claimants who are sister-in-law, brother-inlaw, brother-in-law and grandmother-inlaw. It would be a case of non contributor.
Pravin if at all he is held liable for the
accident, their compensation would stand
depleted to that much extent as qua other
three. It is a case of composite negligence.

17. The reasoning given by the
Tribunal to hold the deceased negligent and
that he had contributed to 25% of the
accident is perverse, just because there was
head on collusion of two vehicles. We hold
that the driver of the maruti car was plying
his car on the correct side but its impact
was such that we hodl that he was negligent
to the effect of 10 per cent.

18. The deceased or the person
concerned should be shown to have
contributed either to the accident and the
impact of accident upon the victim could
have been minimised if he had taken care.
In this case the deceased were not the
authors or the co-authors of the accident.
On facts, the deceased was not plying the
vehicle. Hence, the deduction of 25%from
the compensation awarded to heirs of non
tortfessors will have to be considerd on the
basis of well settled legal principles
9 All Kumari Anju & Ors. Vs. Suresh Kumar Sachan & Ors.
783
governing contributory and composite
negligence as both aspects are present in
this vehicular accident The driver of the
Truck did not appear before the Tribunal
despite that the learned Tribunal has
returned the finding that driver of van was
also negligent.

Computation of compensation
for death of four persons:-

19. Learned counsel for appellant has
relied on the decision of the Apex Court
titled as Montford Brothers of St. Gabriel
and another Vs. United India Insurance
and another, 2014 1 ACC 461 and on the
judgment
of
Gujarat
State
Road
Transport Corporation, Ahmedabad Vs.
Ramanbhai Prabhatbhai to contend that
legal representative is considered and not
dependent and the learned counsel for
respondent has relied on the decision of
Apex
Court
in
National
Insurance
Company Ltd. Vs. Birender and others,
2020 LawSuit (SC) 26, so as to contend
that the dependents of the deceased, who
has received benefits would not be entitled
for the same. The learned counsel for the
appellant has also relied on the said
judgment.

20. Learned counsel for appellant has
further
relied
on
the
authoritative
pronouncements of this High Court in
Oriental Insurance Company Ltd. Vs.
Mangey Ram and others (Supra), Uttar
Pradesh
State
Road
Transport
Corporation Vs. Tara Devi, 1995 LawSuit
(All) 13, and Padma Devi Vs. .P. State
Road
Transport
Corporation,
1988
LawSuit (All) 235, to contend that non
grant of compensation except non pecuniary
damages is against mandate of this Court.

21. We would place reliance on the
decisions in Malarvizhi & Ors Vs. United
India Insurance Company Limited and
Another, 2020 (4) SCC 228 and United
India Insurance Co. Ltd. Vs. Indiro0
Devi & Ors, 2018 (7) SCC 715. and in
The Oriental Insurance Company Ltd.
Vs. Mangey Ram and others, 2019 0
Supreme (All) 1067 and the recent
judgment of the Apex Court in New
India Assurance Company Vs. Urmila
Shukla decided by the Apex Court on
6.8.2021
reported
in
MANU/
SCOR/24098/2021 and Kirti and others
vs oriental insurance company ltd
reported
in
2021(1)
TAC
1
for
commputing the compensation payable to
the heirs legal representative of all four
deceased on what basis, the Tribunal has
disregarded the income and cannot deduct
the amounts as deducted by Tribunal as
income would increase unless proved
otherwise. The factors to be considered for
evaluating quantum of compensation reads
as follows:

i. To give present value, a
reasonable deduction or reduction is
required as lump sum amount is given at a
stretch under the head of prospective
economic loss.

ii. The tax element is also
required to be considered as observed in the
Gourley's case (1956 AC 185).

iii.
The
resultant
impairment/death on the earning capacity
of the claimant/deceased .iv. That the
amount of interest is awarded also on the
prospective loss of income. v. That the
amount of compensation is not exemplary
or punitive but is compensatory in nature .
784 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Learned counsel for the appellants
submitted with regard to the compensation
on account of death of all four deceased
and submitted as under:-

(a) As far as the deceased Ram
Dular is concerned, the Tribunal considered
income of the deceased Ram Dular to be
Rs.15,000/-. Unfortunately, the Tribunal
did not award any amount under the head
of future loss of income. It deducted 1/3rd
amount out of Rs.15,000/- which was
considered to be his income. His salary
certificate of 30.6.2004 and document 71/c
go to show that his income was Rs.21,014/-
. The Tribunal granted multiplier of only 10
and 6% rate of interest. Learned counsel for
the appellant has contended that the income
should be considered to be Rs.21,014/- as
per the salary certificate paper no. 71C and
at the most after all deductions it should be
Rs.16,876/-.It
is
submitted
that
the
deceased left behind him legal heirs four in
number, i.e, two juvenile sons, one dauther
and mother and, therefore, the personal
expenses should be 1/4th and not 1/3rd.
Age of the deceased was in the age bracket
of 45 to 50 years, hence, multiplier
applicable would be 13 and not 10 and
even in the year of accident, the pecuniary
damages to be awarded would be 1 lakh as
both the parents are lost by the minors.

(b) As far as his wife late Vidyavati
is concerned, she was a home maker and
aged about 45 years at the time of accident.
The Tribunal has considered her income to be
Rs.15,000/- without granting any future loss
of income. It deducted 1/3rd. Under the head
of total loss of dependency it granted
Rs.1,0000/-; for funeral expenses, it granted
Rs.2,000/-

(c) For the death of Pravin Dubey,
who has left behind his minor brothers has
not considered his income not even notional
income though he was expected to earn
Rs.7,000 per month as he was selected as
BTC teacher as per paper 46C. No amount
except Rs.1,000 towards loss of love and
affection and Rs.2,000/- for funeral expenses
are granted.

(d) As far as late Manju Devi, who
has left behind sister-in-law, two brother-inlaw and grand mother-in-law, is concerned,
the Tribunal has not granted any amount
except Rs.2,000/- for funeral expenses
holding that they are no dependents and,
therefore, no amount under the other head has
been granted by the Tribunal. Learned
counsel for the appellant submitted that the
Judgment
of
the
Tribunal
requires
modification.

23. We have heard the learned counsels
for the parties and considered the factual data
far as compensation is concerned. Hence, we
now propose to calculate the compensation
payable to the legal heirs of the deceased,who
were four in number and hence compensation
will have to be recalculated in case of all four
individually though the claimants could have
filed different claim applications as there is
no conflict of interest joint claim petition is
held maintainable .

We consider the income of the
deceased (A) Ram Dular to be Rs.17,000/-
per mensem to which as the deceased was
aged about 47 years at the time of accident,
30% has to be added under the head of
future prospect. 1/4 th have to be deducted
towards his personal expenses. Multiplier
applicable to him is 13. We grant
Rs.1,00,000/- under the head of nonpecuniary damages.

Hence, the total compensation
payable to the appellants in view of the
9 All Kumari Anju & Ors. Vs. Suresh Kumar Sachan & Ors.
785
decision of the Apex Court in Pranay Sethi
(Supra) for death of Ram Dular Dubey is
computed herein below:

i. Income Rs.17,000/- p.m.

ii. Percentage towards future
prospects : Rs.5,100/-

iii.
Total
income
:
Rs.17,000+Rs.5,100= Rs.22,100/-

iv. Income after deduction of
1/4th
towards
personal
expenses
:
Rs.16,575/-

v. Annual income : Rs.16,575 x
12 = Rs.1,98,900

vi. Multiplier applicable : 13

vii.
Loss
of
dependency:
Rs.1,98,900 x 13= Rs.25,85,700/-

viii. Amount under non pecuniary
heads : Rs.1,00,000/-

ix.
Total
compensation:
Rs.26,85,700/-

We consider the monthly income
of the deceased (B) Vidyavati to be
Rs.2,000/- to which as the deceased was
aged about 45 years, 25% has to be added
under the head of future prospect as she
was home maker. 1/3rd is required to be
deducted. Multiplier applicable to her is 14.
We grant Rs.70,000/- under the head of
non-pecuniary damages.

Hence, the total compensation
payable to the appellants in view of the
decision of the Apex Court in Pranay Sethi
(Supra) for death of Vidyawati is computed
herein below:

i. Income Rs.2000/- p.m.

ii. Percentage towards future
prospects : Rs.500/-

iii.
Total
income
:
Rs.2000+Rs.500= Rs.2,500/-

iv. Income after deduction of
1/3rd
towards
personal
expenses
:
Rs.1,666/- (rounded figure)

v. Annual income : Rs.1,666 x 12
= Rs.19,992

vi. Multiplier applicable : 14

vii.
Loss
of
dependency:
Rs.19,992 x 14= Rs.2,79,888/-

viii. Amount under non pecuniary
heads : Rs.70,000/-

ix.
Total
compensation:
Rs.3,49,888/-

We
consider
the
monthly
notional income of the deceased (C)
Pravin Dubey to be Rs.2,000/- to which
as the deceased was aged about 25 years,
40% has to be added under the head of
future prospect. As he was not a bachelor
but had a wife namely Manju Devi, 1/3rd
is required to be deducted. Multiplier
applicable to her is 18. We grant
Rs.70,000/- under the head of nonpecuniary damages.

Hence,
the
total
compensation
payable to the appellants in view of the
decision of the Apex Court in Pranay
Sethi (Supra) for death of Pravin Dubey
is computed herein below:

i. Income Rs.2000/- p.m.
786 INDIAN LAW REPORTS ALLAHABAD SERIES

ii. Percentage towards future
prospects : Rs.800/-

iii.
Total
income
:
Rs.2000+Rs.800= Rs.2,800/-

iv. Income after deduction of
1/3rd
towards
personal
expenses
:
Rs.1,866/- (rounded figure)

v. Annual income : Rs.1,866 x 12
= Rs.22,392/-

vi. Multiplier applicable : 18

vii.
Loss
of
dependency:
Rs.22,392 x 18= Rs.4,03,056/-

viii. Amount under non pecuniary
heads : Rs.70,000/-

ix.
Total
compensation:
Rs.4,73,056/-

We consider the monthly notional
income of the deceased (D) Manju Devi to
be Rs.2,000/- to which as the deceased was
aged about 25 years, 40% has to be added
under the head of future prospect. 1/3rd is
required
to
be
deducted.
Multiplier
applicable to her is 18. We grant
Rs.70,000/- under the head of nonpecuniary damages.

Hence, the total compensation
payable to the appellants in view of the
decision of the Apex Court in Pranay Sethi
(Supra) for death of Manju Devi is computed
herein below:

i. Income Rs.2000/- p.m.

ii.
Percentage
towards
future
prospects : Rs.800/-

iii.
Total
income
:
Rs.2000+Rs.800= Rs.2,800/-

iv. Income after deduction of 1/3rd
towards personal expenses : Rs.1,866/-
(rounded figure)

v. Annual income : Rs.1,866 x 12 =
Rs.22,392/-

vi. Multiplier applicable : 18

vii. Loss of dependency: Rs.22,392
x 18= Rs.4,03,056/-

viii. Amount under non pecuniary
heads : Rs.70,000/-

ix.
Total
compensation:
Rs.4,73,056/-

Hence, the total compensation to
the claimants for the death of four persons
would be Rs.39,81,700/-.

24. 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
9 All Ramesh Chandra Gupta & Anr. Vs. Jagdish Chandra Samdani & Ors.
787
matter at any rate higher than that allowed
by High Court."

25. No other grounds are urged orally
when the matter was heard

26. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the further order of
investment is not passed because applicants
/claimants are neither illiterate or rustic
villagers and must by now attained
majority the tribunal shall follow the
directions .

27. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguti P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291,total amount
of interest, accrued on the principal amount
of compensation is to be apportioned on
financial year to financial year basis and if
the interest payable to each 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
exceed
Rs.50,000/- in any financial year, registry of
the 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) while
disbursing
the
amount.The
insurance
company shall follow the said direction and
shall not deduct flat TDS without considering
the proportionate share of each claimant
individually .

28. In view of the above, the appeal is
partly allowed. Judgment and decree passed
by the Tribunal shall stand modified to the
aforesaid extent.