# Master Pulkit Gupta & Ors v. Pushpendra Kumar & Ors

- **Citation:** (2021) 9 ILRA 451
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-17
- **Case number:** FAFO No. 1481 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-pulkit-gupta-ors-v-pushpendra-kumar-ors-47430
- **Pages:** 10

## Headnote

A. Civil Law - Motor Vehicle Act, 1988Section 176-challenge to-claim-deceased
was working as IT Analyst in Tata
Consultancy
Co.
and
the
tribunal
considered her income Rs. 54,614 per
month but has not granted future loss of
income-the deceased was survived by four
452 INDIAN LAW REPORTS ALLAHABAD SERIES
dependents-Total compensation would be
Rs. 80,34,416/- and rate of interest would
be 7.5% -the insurance company shall
deposit the amount within period of 12
weeks.(Para 1 to 22)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

9 All. Master Pulkit Gupta & Ors. Vs. Pushpendra Kumar & Ors.
451
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimant 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.

11.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and not blindly apply the judgment
of A.V. Padma (supra). The same is to be
applied looking to the facts of each case.

12. The insurance company has
decided to settle the lis. The Apex Court in
AIR 2021 SC 3301, Lakkamma & others.
v. The Regional Manager M/S United
India Insurance Co. Ltd & another has
accepted the submission of the insurance
company that for a period when the appeal
is belated. The interest shall not be paid.
We will adopt the similar mode from the
date of the judgment till the delay is
condoned, interest be not granted.

13. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount along with additional amount
within a period of 12 weeks from today
with interest at the rate of 6% from the date
of filing of the claim petition till the
decision in the claim petition from the
period when the matter remained pending,
there shall be no interest. 6% from the date
of the condonation of delay till the amount
is deposited, as the insurance company has
decided the settle the dispute interest at rate
of 6% is granted. The amount already
deposited be deducted from the amount to
be deposited.

14. This Court is thankful to both the
counsels to see that the matter is disposed
of.

15. Record and proceedings be sent
back to the Tribunal after two weeks.
----------
(2021)09ILR A451
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

FAFO No. 1481 of 2015

Master Pulkit Gupta & Ors. ...Appellants
Versus
Pushpendra Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri Nigamendra Shukla

Counsel for the Respondents:
Sri Manish Kumar Nigam, Sri Santosh
Tripathi, Sri Manviya Tripathi

A. Civil Law - Motor Vehicle Act, 1988Section 176-challenge to-claim-deceased
was working as IT Analyst in Tata
Consultancy
Co.
and
the
tribunal
considered her income Rs. 54,614 per
month but has not granted future loss of
income-the deceased was survived by four
452 INDIAN LAW REPORTS ALLAHABAD SERIES
dependents-Total compensation would be
Rs. 80,34,416/- and rate of interest would
be 7.5% -the insurance company shall
deposit the amount within period of 12
weeks.(Para 1 to 22)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Yerramma & ors. Vs G. Krishnamurthy & anr.
(2014) 4 TAC 337 SC

2. Sarla Devi & ors. Vs Divisional Manager,M/s. Royal
Sundaram Allance Ins. Co. Ltd. & anr. (2014) 4 TAC
343 SC

3.
National
Insurance
Co,
Ltd.
Vs
Indira
Srivastava,(2008) 2 SCC 763 : 2008 910 TAC 424

4. Khenyei Vs New India Assr. Co. Ltd & ors. (2015)
LawSuit SC 469

5. T.O. Anthony Vs Karvarnan & ors. (2008) 3 SCC
748

6. G.M., Ker. S.R.T.C., Trivandrum Vs Susamma
Thomas & ors., Trilok Chandra & ors. (1994) 2 SCC
176

7. U.P.S.R.T.C. & ors. Vs Trilok Chandra & or..(1996)
4 SCC 362

8. Sarla Dixit Vs Balwant Yadav (1996) AIR SC 1274

9. Hardeo Kaur V/s Raj. St. Transp. Corpn.(1992) 2
SCC 567

10. Puttamma Vs K.L. Narayana Reddy (2014) AIR
SC 706 Raman Vs Uttar Haryana Bijll Vitran Nigam
Limited

11. Bijoy Kumar Dugar Vs Bidyadhar Dutta (2006) 93
SCC 242 R. K . Malik Vs Kiran Pal (2009) AIR SC
2506

12. National Insurance Rani Vs Oriental Ins. Co.
Ltd.(2009) 3 SCC 654

13. Ritaben @ Vanitaben Wd/o . Dipakbhai Hariram
& anr. Vs Ahmedabad Municipal Transp. Service &
anr. (1998) 2 G.L.H. 670

14. New India Assur. Co. Ltd. Vs Urmilla Shukla & ors.
LL (2021) SC 359

15. National Ins. Co. Ltd. Vs Mannat Johal & ors.
(2019) 2 T.A.C. 705 SC

16. A.V. Padma V/s Venugopal (2012) 1 GLH SC 442

17. Smt. Hansaguti P. Ladhani Vs The Oriental Ins.
Co. Ltd. (2007) 2 GLH 291

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Subhash Chand, J.)

1. Heard Sri Nigamendra Shukla for the
appellants, Sri Manish Kumar Nigam for
Insurance
Company
and Sri
Manviya
Tripathi for the owner and driver of the Car.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 25.3.2015 passed by Motor
Accident Claims Tribunal/Special Judge (EC
Act) Ghaziabad, (hereinafter referred to as
'Tribunal') in Motor Accident Claim Petition
No.120 of 2014.

3. Brief facts as culled out from the
record are that on 8.1.2014 the deceased
along with her husband was travelling by
motorcycle, bearing no.UP-16-AH-8708 and
when they reached at U-turn near Radission,
a Car bearing no.UP-14-BQ-0549 which was
being driven rashly and at exorbitant speed
dashed the motorcycle from behind due to
which both the deceased and her husband
suffered multiple injuries. The deceased
succumbed to the injuries during treatment on
15.1.2014. The deceased was 32 years of age
and was working as IT Analyst in Tata
Consultancy Co.

4. The heirs of the deceased instituted
a claim petition claiming compensation of
9 All. Master Pulkit Gupta & Ors. Vs. Pushpendra Kumar & Ors.
453
Rs.3,20,50,000/-.
The
Tribunal
has
considered her income Rs.54,614/- per
annum
and
awarded
a
sum
of
Rs.27,85,314/- with interest at the rate of 6
per cent.

5. Learned counsel for the claimants
has contended that the finding of the
Tribunal in holding the deceased/her
husband to be 50% negligent is bad as the
deceased has not contributed to the
accident having taken place.

6. It is submitted by learned counsel
for the appellant that the deceased was 32
years of age and was working as IT Analyst
in Tata Consultancy Co. The Tribunal has
considered her income Rs.54,614/- per
annum but has not granted future loss of
income. It is submitted that the deceased
was survived by four dependents and,
therefore, the deduction of 1⁄2 towards
personal expenses is bad and it should be
1/4th.

7. It is submitted by learned counsel
for the appellant that the Tribunal has not
granted any amount under the head of nonpecuniary damages which requires to be
considered and granted. He has further
submitted that the interest granted by the
Tribunal is on the lower side and requires
enhancement. The learned advocate has
relied on the decisions in the case of
Yerramma
and
others
v.
G.Krishnamurthy and another, 2014 (4)
TAC 337 (SC) and Sarla Devi and others
Vs. Divisional Manager, M/s. Royal
Sundaram Aliance Ins. Co. Ltd. And
another, 2014 (4) TAC 343 (SC).
Paragraph no.6 of Yerramma (supra) is
quoted herein below:

"6. After thorough consideration
of the facts and legal evidence on record in
the present case, we are of the view that the
collision between the motor vehicles
occurred when the respondent-Corporation
bus was turning to its right side without
showing the turn indicator to enter the bus
depot. The driver of the offending vehicle of
the
respondent-Corporation
bus
was
negligent by not giving the right turn
indicator and causing the accident. The
driver of the respondent-Corporation bus
should have been aware of the fact that he
was driving the heavy passenger motor
vehicle, and that it was necessary for him
to take extra care & caution of the other
vehicles on the road while taking the turn
to enter the depot. Had the driver of the
offending vehicle taken sufficient caution
and care, slowed down and allowed
reasonable provision for other vehicles on
the left side of the road to pass smoothly,
the accident could have been averted.
Hence, we are of the view that the Tribunal
and the High Court have erred in the
apportionment of negligence at 25% on the
part of the deceased and 75% on the part of
the driver of the respondent-Corporation
bus without evidence adduced in this
regard by the respondent. But on the other
hand, legal evidence produced on record
by the appellants in this case would show
that the accident was caused on account of
the negligence on the part of the driver of
the offending vehicle of the respondentCorporation. Therefore, the erroneous
finding recorded by the Tribunal &
concurring with the same by the High
Court on the question of contributory
negligence of the deceased is liable to be
set aside. Accordingly, we set aside the
same as it is not only erroneous but
contrary to law laid down by this Court in
the case of Juju Kurivila (Supra).

In our considered view, since the
deceased at the time of his death was
approximately 53 years of age, therefore,
454 INDIAN LAW REPORTS ALLAHABAD SERIES
as per law laid down by this Court in the
Sarla Verma case (supra), 30% of actual
salary for future prospects of the deceased
cannot be taken for the purpose of
awarding compensation under loss of
dependency in favour of the appellants.

Further, with regard to gross
annual
income of
the
deceased,
to
determine the loss of dependency of the
appellants, we refer to the case of National
Insurance Co. Ltd. v. Indira Srivastava,
(2008) 2 SCC 763 : 2008 (1) TAC 424,
wherein this Court has held as under:-

"19. The amounts, therefore,
which were required to be paid to the
deceased by his employer by way of perks,
should be included for computation of his
monthly income as that would have been
added to his monthly income by way of
contribution
to
the
family
as
contradistinguished to the ones which were
for his benefit. We may, however, hasten to
add that from the said amount of income,
the statutory amount of tax payable
thereupon must be deducted.

20. The term 'income' in P.
Ramanatha Aiyar's Advanced Law Lexicon
(3rd Ed.) has been defined as under : "The
value of any benefit or perquisite whether
convertible into money or not, obtained
from a company either by a director or a
person who has substantial interest in the
company, and any sum paid by such
company in respect of any obligation,
which but for such payment would have
been payable by the director or other
person aforesaid, occurring or arising to a
person
within
the
State
from
any
profession, trade or calling other than
agriculture."

It has also been stated :

'INCOME' signifies 'what comes
in' (per Selborne, C., Jones v. Ogle, 42 LJ
Ch.336). 'It is as large a word as can be
used' to denote a person's receipts '(per
Jessel, M.R. Re Huggins, 51 LJ Ch.938.)
income is not confined to receipts from
business
only
and
means
periodical
receipts
from
one's
work,
lands,
investments, etc. AIR 1921 Mad 427 (SB).
Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW
438 AIR 1930 Mad 626 : 58 MLJ 337."

8. It is also submitted that the
Tribunal has not granted medical expenses
though she was hospitalized in Pushpanjali
Hospital, Ghaziabad, and Rs. 3,00,000/-
was spent for her treatment.

9. As against this, learned counsel for
the
respondents
submits
that
the
compensation awarded by the Tribunal is
just and proper. It is also submitted that the
deceased being in age bracket of 31-35 at
the time of accident, the multiplier of 17 as
granted by the Tribunal is bad and it should
be 16.

10. 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 claimants
must always prove that the other 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" may apply.

11. The principle of 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.
9 All. Master Pulkit Gupta & Ors. Vs. Pushpendra Kumar & Ors.
455

12. In this case, we do not delve into
the issue of negligence as concept of
contributory negligence and composite
negligence operate in different fields. In
one there is deduction as one of the parties
to accident was claimant was claimant or
his heirs whereas in composite negligence
both are liable to the third party who is not
the driver or tort-fessor. The tort-fessor
may be one of the heirs and no amount can
be deducted where the tort-fessor claims as
legal representative. We, therefore, leave
the question open as far as contributory
negligence.

13. 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
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 tkenhe
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
456 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

18.
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
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 :

(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.

(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.

(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
9 All. Master Pulkit Gupta & Ors. Vs. Pushpendra Kumar & Ors.
457
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.

(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

14. It is admitted position that the
opponents - owner and driver after filing
written statement never orally substantiated
what they had averred in written statement.
The latest decision of the Apex Court in
Khenyei (Supra) has laid down one further
aspect about considering the negligence
more particularly composite/contributory
negligence. 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 was not the author
or the co-author of the accident. On facts,
the deceased was not plying the vehicle,
hence, the deduction of 50% from the
compensation awarded is bad and is set
aside. The husband, who was plying the
motorcyle, is not claiming for his own
damages. He is claiming for the death of
his wife and, therefore, the principles
enunciated in Kheynei (supra) will be
applicable. The claimants are heirs of nontortfessor and hence no deduction is
permissible from their claim.

COMPENSATION EVALUATED ;

15. The submission is that the
Tribunal has not granted any amount
towards future loss of income. Grant of
future prospects will have to be traced back
and reference can be had to the decision in
General
Manager,
Kerala
S.R.T.C.,
Trivandrum v. Susamma Thomas &
Ors.,(1994) 2 SCC 176 wherein addition
of future prospects was also calculated. The
decision in Susamma Thomas (Supra)
was referred in U.P.S.R.T.C. & Ors. v.
Trilok Chandra & Ors.(1996) 4 SCC 362
which have been considered by the Apex
Court in Sarla Dixit Versus Balwant
Yadav AIR 1996 SC 1274 and the Apex
Court has considered decision in Hardeo
Kaur V/s. Rajasthan State Transport
Corporation, 1992 2 SCC 567. The
decision in Sarla Dixit has been considered
to be good law in (1) Puttamma Vs.
K.L.Narayana Reddy, AIR 2014 SC 706
(2) Raman Vs. Uttar Haryana Bijli
Vitran Nigam Limited, Bijoy Kumar
Dugar Vs. Bidyadhar Dutta, 2006 (3)
SCC
242
:
(3)
Sarla
Verma
(supra)(4)R.K.Malik Vs. Kiran Pal, AIR
2009 SC 2506 (5)National Insurance
Company Limited Vs. Pranay Sethi, AIR
2017 SC 5157 Raj Rani Vs. Oriental
Insurance Company Limited, 2009 (13)
SCC 654. We have gone through the
decisions in those days referred to herein
above and the judgment of Gujarat high
court in Ritaben alias Vanitaben Wd/o.
Dipakbhai
Hariram
and
Anr.
v/s.Ahmedabad
Municipal
Transport
458 INDIAN LAW REPORTS ALLAHABAD SERIES
Service & Anr., 1998 (2) G.L.H. 670,
wherein, the Court has observed as under:

"para-7: It is settled proposition
of that the main anxiety of the Tribunal in
such case should be to see that the heirs
and legal representatives of the deceased
are placed, as far as possible, in the same
financial position, as they would have been,
had there been no accident. It is therefore,
an action based on the doctrine of
compensation.

para-8: It may also be mentioned
that perfect determination of compensation
in such tortuous liability is, hardly,
obtainable. However, the Tribunal is
required to take an overall view of the facts
and the relevant circumstances together
with the relevant proposition of law and is
obliged
to
award
an
amount
of
compensation which is just and reasonable
in the circumstances of the case.

para-10: Even in absence of any
other evidence an able bodied young man
of 25 years, otherwise also presumed to
earn an amount of Rs.1000/- or more per
month, on that basis the prospective income
could be calculated by doubling the one
prevalent on the date of the accident, which
is required be divided by half, so as to
reach the correct datum figure which is
required to be multiplied by appropriate
multiplier. Even taking a conservative view
in the matter, the deceased would be
earning not less than an amount of
Rs.1000/- per month and considering the
prospective average income of Rs.2000/-
and divided by half, would, obviously come
to Rs.1500/."

16. Thus even in year 1990 to 2010,
the addition of future prospects was not
ruled out, just because tribunals in Uttar
Pradesh were not granting future loss, it
cannot hold field where the decision of
Apex Court is otherwise as demonstrated
by citing decision though of persuasive
value of Gujarat High Court referred herein
above wherefore, the submission of learned
Advocate for respondent that no amount
under the head of future loss of income was
admissible in those days, will have to be
considered. The decision of the Apex Court
in New India Assurance Company Ltd.
Vs. Urmila Shukla and others, LL 2021
SC 359 will have to be looked into.
Therefore, we will have to consider the
same in the light of the recent decisions as
well as the decisions of the Apex Court
prevailing when the accident occured.

17. Even in the earlier days, the
factors to be considered for issuing
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 capcity
of the claimant/claimants .

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.

18. Hence we now propose to
calculate the compensation payable to the
legal heirs of the deceased.

19. The facts will permit us to rely on
the said decisions. The Tribunal has
assessed the income of the deceased to be
9 All. Master Pulkit Gupta & Ors. Vs. Pushpendra Kumar & Ors.
459
Rs.54,614 per annum which is undisputed.
To which 50% will have to be added as
future prospects. The finding that in IT
field there will be recession and deceased
could have lost the job hence no future
could be awarded is absurd and smacks of
perversity.
Even
as
per
the
earlier
decisions, 1/2 will have to be deducted as
we are convinced that the deceased was
survived by dependent namely including
one minor son aged 1 year 8 months.
Husband cannot be called dependant in
absence of proof. The multiplier would be
16 as the deceased was in the age bracket
of 31-35. As far as amount under the head
of non-pecuniary damages is concerned, we
grant Rs.70,000/-. The Tribunal has not
granted medical expenses though she was
hospitalized hence we grant Rs. 1,00,000/-
towards medical expenses as the accident
occurred on 8.1.2014 and deceased passed
away on 15.1.2014.

20. Hence, the total compensation
payable to the claimants is computed herein
below:

i. Monthly Income Rs.54,614,/-

ii. Percentage towards future
prospects : 50% namely Rs.27,307/-

iii. Total income : Rs.54,614 +
27,307 = Rs.81,921/-

iv. Annual Loss of Dependency :
81,921 x 12 = 9,83, 052/-

iv. Income after deduction of 1/2
: Rs.4,91,526/-

v. Multiplier applicable : 16

vi. Loss of dependency: Rs.
4,91,526 x 16 = Rs.78,64,416/-

vii. Amount under non-pecuniary
head : Rs. 70,000/-

viii.
Amount
for
medical
expenses: Rs. 1,00,000/-

ix.
Total
compensation
:
80,34,416/-

21. 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."

22. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount within a period of 12 weeks from
today with interest at the rate of 7.5% from
the date of filing of the claim petition till
award and 6% thereafter till the amount is
deposited. The amount already deposited
be deducted from the amount to be
deposited.

23. 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 order of
investment is not passed because applicants
460 INDIAN LAW REPORTS ALLAHABAD SERIES
/claimants are neither illiterate or rustic
villagers.

24. 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
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 claimant 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.

25. We make it clear that 30% can be
recovered by the Insurance Company from
the owner, driver and Insurance Company
of the motorcycle by the mode suggested
by the Apex Court.

26.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein.

27. This Court is thankful to both the
counsels to see that this very old matter is
disposed of.
----------
(2021)09ILR A460
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

FAFO No. 1897 of 2018

Smt. Meenaxi Panwanda & Ors.
 ...Appellants
Versus
Raj Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri Shreesh Srivastava, Sri Anubhav Sinha

Counsel for the Respondents:
Smt. Archana Singh, Ms. Manjima Singh,
Sri Ram Lakhan Deobanshi, Sri Arun Kumar
Singh

A. Civil Law -Motor Vehicle Act, 1988Section 176-challenge to-claim-deceased
who was an Assistant Manager in NTPC
and his income considered Rs. 63,125 per
month-the deceased was survived by his
widow
and
three
daughters-Total
compensation would be Rs. 68,87,500/-
and rate of interest would be 7.5% -the
insurance company shall deposit the
amount within period of 12 weeks. (Para 1
to 13)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. New India Assur. Co. Ltd. Vs Urmilla Shukla &
ors. Civil Appeal No. 4634 of 2021

2. Kirti & anr. Vs Oriental Ins. Co. Ltd. (2021) 2
SCC 166

3. Anita Sharma & ors. Vs The New India Assr.
Co. Ltd. & anr. (2021) 1 SCC 171