# Moti Lal & Ors v. The New India Insurance Co. Ltd. & Ors

- **Citation:** (2022) 6 ILRA 865
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-18
- **Case number:** First Appeal From Order No. 990 of 2010
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moti-lal-ors-v-the-new-india-insurance-co-ltd-ors-48872
- **Pages:** 7

## Headnote

A. Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 168 - Motor Accident claim
- Quantum of compensation - Income -
Income tax return - Claimants filed copy
of income tax return of the deceased
pertaining to the financial year 2005-06 -
Tribunal refused to rely on the annual
income of the deceased on the basis of
income tax return on the ground that
registration certificate of business and
details of account showing the income of
866 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased not filed & there was no
proof of deceased income - Tribunal -
Held - income tax returns are statutory
document on which reliance may be
placed to determine annual income of the
deceased, which cannot be ignored by any
Court/Tribunal or Authority - details of
account
&
proof
of
income
is
not
necessary once income tax returns is filed
- deceased died on 17.01.2007, hence
income of financial year 2005-06 is
relevant (Para 8)

B. Civil Law - Motor Vehicles Act, 1988
- Sections 166 & 168 - Motor Accident
claim
-
Determination
of
compensation - Monthly income Rs.
15000 - Future loss; Deceased aged
26 years i.e. below 40 years of age,
40% would be added for future loss of
income = Rs. 6,000 - Total income :
Rs.15000 + 6000=21,000 - deduction
for personal and living expenses -
deceased was unmarried and nobody
was dependent upon him, hence, 1/2
should
be
deducted
for
personal
expenses of the deceased; After 1/2
deduction for personal expenses = Rs
21000
-
10500=10500
-
Annual
income Rs. 10500 X 12=126000 -
multiplier should be applied according
to the age of the deceased - Tribunal
fell in error applying multiplier on the
basis of age of the parents - Multiplier
applicable : 17 - Loss of dependency
Rs. 126000 X 17=2142000 - Amount
under
non
pecuniary
heads
Rs.
20000+50000=
70000
-
Total
compensation
Rs.
2142000+70000=2212000 - claimants
entitled for interest at the rate of 7%
on the enhanced amount from the
date of filing claim petition. (Para 13)

Allowed. (E-5)

List of Cases cited :

## Text

6 All. Moti Lal & Ors. Vs. The New India Insurance Co. Ltd. & Ors.
865
interest of minor. In catena of judgments, it
has been held by Hon'ble Supreme Court
that in the matter of custody of minor, the
paramount consideration for the court to
view is as to what is conducive to the
welfare of minor child. In the case of Rosy
Jacob
Vs.
Jacob
A.
Chakramakkal
MANU/SC/0260/1973, it has been held by
Hon'ble Supreme Court in paragraph 20
that,

"20.The
appellant's
argument
based on estoppel and on the orders made
by the court under the Indian Divorce Act
with respect to the custody of the children
did not appeal to us.

All orders relating to the custody
of the minor wards from their very nature
must be considered to be temporary orders
made in the existing circumstances. With
the changed conditions and circumstances,
including the passage of time, the Court is
entitled to vary such orders if such
variation is considered to be in the interest
of the welfare of the wards. It is
unnecessary to refer to some of the decided
cases relating to estoppel based on consent
decrees, cited at the bar. Orders relating to
custody of wards even when based on
consent are liable to be varied by the Court,
if the welfare of the wards demands
variation."

In view of above, in changed
scenario and for welfare of her minor
daughter, the appellant always has a liberty
to move application for the custody of her
minor daughter before appropriate court.
The third point of determination is decided
accordingly.

28. Under the facts and circumstances
of the case, material available on record,
we are of the considered view that the
present appeal as well as the connected
First Appeal No.108 of 2017 being bereft
of merit are liable to be dismissed.

29. Accordingly, the first appeals are
dismissed.

30. Cost is made easy.

31. Let a copy of the judgment/order
be kept in the record of First Appeal
No.108 of 2017.
----------
(2022)06ILR A865
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2022

BEFORE

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

First Appeal From Order No. 990 of 2010

Moti Lal & Ors. ...Appellants
Versus
The New India Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Ranjay Kumar, Sri Ashutosh Srivastava,
Sri Satyendra Narayan Singh

Counsel for the Respondents:
Sri Aijaz Ahmad Khan

A. Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 168 - Motor Accident claim
- Quantum of compensation - Income -
Income tax return - Claimants filed copy
of income tax return of the deceased
pertaining to the financial year 2005-06 -
Tribunal refused to rely on the annual
income of the deceased on the basis of
income tax return on the ground that
registration certificate of business and
details of account showing the income of
866 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased not filed & there was no
proof of deceased income - Tribunal -
Held - income tax returns are statutory
document on which reliance may be
placed to determine annual income of the
deceased, which cannot be ignored by any
Court/Tribunal or Authority - details of
account
&
proof
of
income
is
not
necessary once income tax returns is filed
- deceased died on 17.01.2007, hence
income of financial year 2005-06 is
relevant (Para 8)

B. Civil Law - Motor Vehicles Act, 1988
- Sections 166 & 168 - Motor Accident
claim
-
Determination
of
compensation - Monthly income Rs.
15000 - Future loss; Deceased aged
26 years i.e. below 40 years of age,
40% would be added for future loss of
income = Rs. 6,000 - Total income :
Rs.15000 + 6000=21,000 - deduction
for personal and living expenses -
deceased was unmarried and nobody
was dependent upon him, hence, 1/2
should
be
deducted
for
personal
expenses of the deceased; After 1/2
deduction for personal expenses = Rs
21000
-
10500=10500
-
Annual
income Rs. 10500 X 12=126000 -
multiplier should be applied according
to the age of the deceased - Tribunal
fell in error applying multiplier on the
basis of age of the parents - Multiplier
applicable : 17 - Loss of dependency
Rs. 126000 X 17=2142000 - Amount
under
non
pecuniary
heads
Rs.
20000+50000=
70000
-
Total
compensation
Rs.
2142000+70000=2212000 - claimants
entitled for interest at the rate of 7%
on the enhanced amount from the
date of filing claim petition. (Para 13)

Allowed. (E-5)

List of Cases cited :

1. Vimal Kanwar & ors. Vs Kishore Dan & ors.,
AIR 2013 SC 3830

2. Sarla Verma & ors. Vs Delhi Transport Corp.
& anr., 2009 ACJ 1298
3. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 LawSuit (SC) 1093

4. Munna Lal Jain & anr. Vs Vipin Kumar Sharma
& ors. reported in (2015) 6 SCC 347

5. Malarvizhi & ors. Vs United India Insurance
Co. Ltd. & anr., reported in 2020 0 AIR (SC) 90

6. Smt. Meena Pawaia & ors. Vs Ashraf Ali &
Ors. reported in 2021 0 Supreme (SC) 694

7. National Insurance Co. Ltd. Vs Indira
Srivastava & ors. (2008) 2 Supreme Court Cases
763

8. Panchratni & ors. Vs Smt. Manju Singh & ors.
First Appeal From Order No. 2386 of 2013
decided on 25.03.2022

9.
General
Manager,
Kerala
State
Road
Transport Corporation, Trivandrum Vs Susamma
Thomas 1993 (0) AIJEL-SC 9412

10. Gobald Motor Service Ltd. & anr. Vs R.M.K
Veluswami & ors., 1962 SCR(1) 929

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

12. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Company Ltd., reported in 2007(2)
GLH 291

13. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs U.O.I. & ors.

14. The Oriental Insurance Co. Ltd. Vs Chief
Commissioner of Income Tax (TDS), R/Special
Civil Application No.4800 of 2021 decided on
05.04.2022

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. This appeal, at the behest of the
claimants, challenges the judgment and
order dated 15.01.2010 passed by Motor
Accident
Claims
Tribunal/
Special/
6 All. Moti Lal & Ors. Vs. The New India Insurance Co. Ltd. & Ors.
867
Additional
District
Judge,
Ballia
(hereinafter referred to as 'Tribunal') in
Motor Accident Claim Petition No. 31 of
2007 awarding a sum of Rs.1,24,500/- with
interest at the rate of 6% p.a. as
compensation.

2. Heard Sri Satyendra Narayan
Singh, learned counsel for the appellants;
Sri Aijaz Ahmad Khan, learned counsel for
the respondent no. 1-New India Insurance
Company Ltd. None appears for the the
remaining respondents.

3. The brief facts as culled out from
the record are that on 17.01.2007 when
deceased was driving his Indica Car No.
U.P.-60-H-4901 owned by him and was
travelling on Varanasi Ghazipur road,
D.C.M. Truck No. U.P.-65-H-8205 coming
from opposite side, which was driven
rashly and negligently, dashed against the
said car at about 10.00 p.m. In this
accident, Anand Kumar and Jatin Kumar
died on spot and Kumari Drishya Verma
and Abhishek Verma sustained grievous
injures. Deceased was a healthy person
who was partner in J.J. Honda agency
Ballia and was dealing in the business of
purchase
and
sale
of
silver-golden
ornaments, in retain which is his ancestral
occupation. He was earning Rs. 1,77,578
annually and was paying income tax. He
was unmarried. Claimant/appellant no. 1Moti
Lal
Sarraf
is
the
father,
Claimant/appellant no. 2-Smt. Tara Devi is
the mother and Claimant/appellant no. 3- is
the sister of the deceased.

4. The accident is not in dispute, the
liability of owner/insurance company to
pay the compensation is also not disputed.
The finding regarding negligence has
attained finality. So now it is the dispute of
quantum of compensation which is left to
be decided in this appeal.

5. Learned counsel for the appellants
submitted that the deceased was a business
man he was engaged in jewelry business. It
is also submitted that the deceased was
income tax payee and his income tax return
has been filed on record, but the learned
Tribunal did not consider the income
mentioned in income tax return on the
ground that source of income is not proved
by the appellants which was not required.
Hence, learned Tribunal has awarded a
very meagre amount of compensation.
Learned counsel also submitted that it is
also opined by the learned Tribunal that
income tax return of only one year is filed.
Learned Tribunal did not consider the fact
that the income at the time of death of the
deceased was relevant. It is further
submitted that learned Tribunal not given
any amount for loss of future income and
multiplier of 5 is applied on the basis of age
of the parents of the deceased wife,
multiplier should have applied according to
the age of the deceased. It is next submitted
by learned counsel for the appellants that
only Rs. 2,000/- were granted for funeral
expenses and of Rs. 2,500/- were granted
for loss of estate. No amount is granted for
the loss of love and affection.

6. Learned counsel for the Insurance
Company
vehemently
objected
the
submissions made by the appellants and
further submitted that income of deceased
mentioned in income tax return is not
proved. Moreover, income tax return is in
the name of firm and the shop of deceased
is not disclosed. Hence, learned Tribunal
rightly consider notional income of the
deceased but learned counsel very fairly
submitted that the multiplier should be
868 INDIAN LAW REPORTS ALLAHABAD SERIES
applied according to the age of the
deceased.

7. We have perused the record and
impugned judgment.

8. The deceased died on 17.01.2007,
hence income of financial year 2005-06
may be relevant. Appellants have filed the
copy of income tax return of the deceased
pertaining to the financial year 2005-06
which is paper no. 14-C on the record. This
goes to show that it is not in the name of
firm but it is "individual". This document
shows the annual income of the deceased at
Rs. 1,77,578/- Learned Tribunal has
ignored the income tax return on the
ground that registration certificate of
business and details of account showing the
income of the deceased have not been filed
and there is no proof of his income from
business of sale and purchase of ornaments.
On the basis of above observation, learned
Tribunal has refused to rely on the annual
income of the deceased on the basis of
income tax return. This is not only absurd
but not germane to the compensatory
jurisprudence with regard to the Motor
Accident Claim Petition under Section 166
of the Motor Vehicles Act, 1988. The
income tax return is the face of income of
assessee. This is authentic document of
income which cannot be ignored by any
Court/Tribunal
or
Authority.
Hence,
learned Tribunal has fallen error by not
placing the reliance of income tax return
which is not controverted by the Insurance
Company and is against the judgment of
Vimal Kanwar and others v. Kishore Dan
and others, AIR 2013 SC 3830. Hence,
learned Tribunal has not awarded just
compensation. Annual income of the
deceased for financial year 2005-06 is
shown Rs. 1,77,578/- in the copy of income
tax return, filed by the appellants on record
which is not shown taxable. Hence we hold
the monthly income of the deceased at Rs.
15,000/- per month rounded off.

9. Learned Tribunal has not awarded
any sum for future loss of income file but
judgment of Apex Court in Sarla Verma
and
others
Vs.
Delhi
Transport
Corporation and another, 2009 ACJ 1298
was in vogue when the impugned judgment
was
delivered.
After
the
aforesaid
judgment, Hon'ble Apex Court has held in
National Insurance Co. Ltd. Vs. Pranay
Sethi and Others, 2017 LawSuit (SC) 1093
that case of self employed persons, if he is
below 40 years of age, 40% would be
added for future loss of income.

10. Learned counsel for Insurance
Company submitted that the deceased was
unmarried and nobody was dependent upon
him, hence, 1/2 should be deducted for
personal expenses of the deceased. Per
contra learned counsel for the appellants
submitted that the learned Tribunal has
rightly deducted 1/3 of income for personal
expenses but we unable to concur the
submissions made by the appellants. As per
the judgment of Apex Court Munna Lal
Jain And Another Vs. Vipin Kumar
Sharma and Others reported in (2015) 6
SCC 347 1/2 would be deducted for
personal expenses because the deceased
was unmarried.

11. Learned Tribunal has fallen an
error again for applying multiplier on the
basis of age of the parents of the deceased
Hon'ble Apex Court has held in Munna Lal
Jain (Supra) that the multiplier would be
applied according to the age of the
deceased. As per the judgment of Sarla
Verma (Supra), keeping in view 26 years
age of the deceased multiplier of 17 would
be applicable. Appellants would be entitled
6 All. Moti Lal & Ors. Vs. The New India Insurance Co. Ltd. & Ors.
869
to get Rs. 20,000/- for funeral expenses and
mother of the deceased being Class-I heir
would also get Rs. 50,000/- as filial
consortium.

12. Despite the fact that the decisions
even in the date when the judgment was
pronounced namely Sarla Verma (Supra)
were very clear that the income tax returns
have to be look into a holistic approach. We
are fortified in our view by the judgment of
Apex Court in Malarvizhi & Ors. Vs. United
India Insurance Company Limited & Anr.,
reported in 2020 0 AIR (SC) 90 relied by the
learned counsel for the appellants will enure
for the benefit of the claimants, hence income
tax returns are statutory document on which
reliance may be placed to determine annual
income of the deceased. The Insurance
Company has not laid any rebuttal evidence
and the Tribunal has failed to consider the
potential of a man to earn relying on the
decision of the Apex Court in brushing a side
the income tax returns goes to show that the
Tribunal has made the judgement venerable,
just returning of filing that his share or
income in the said commercial organization
can also not be estimated, the proof is very
clear that the income tax returns which were
produced by the appellants were in the name
of not the firm but it was individual in the
name of the deceased. This is an error which
is apparent on the face of the record proof of
income is not necessary once income tax
returns are filed details of account has not to
be filed. This is not taking holistic view of the
matter the decision relied by the Tribunal in
deducting 1/3 and fixing the income at Rs.
3,000/- per month is again bad. The
multiplier of parents would not have been
applied after the judgment of Sarla Verma
(Supra), the judgment is after the judgment
of Sarla Verma (Supra) shows that the
Tribunal has misdirected itself in awarding
multiplier of 5 and added what can be said to
be meagre amount under the head of funeral
expenses and loss of estate, this itself makes
the judgment venerable. We are again
fortified in our view the judgment of Apex
Court in Smt. Meena Pawaia & Ors. Vs.
Ashraf Ali & Ors. reported in 2021 0
Supreme (SC) 694 and the judgement in
National Insurance Company Ltd. Vs.
Indira Srivastava and Others reported in
(2008) 2 Supreme Court Cases 763 and a
recent decision of this Bench in Panchratni
and 5 Others Vs. Smt. Manju Singh and 2
Others in First Appeal From Order No.
2386 of 2013 decided on 25.03.2022 will
also enure for the benefit of the appellants.
The judgement of Apex Court in General
Manager, Kerala State Road Transport
Corporation, Trivandrum Vs. Susamma
Thomas reported in 1993 (0) AIJEL-SC
9412 and the judgment of Gobald Motor
Service Ltd. and another Vs. R.M.K
Veluswami and other, 1962 SCR(1) 929
should have been made applicable for
granting future loss of income which has not
been done. We, therefore, recalculate the
income as fallows and as reasoned above.

13. On the basis of above discussions
the amount of compensation payable to the
appellants is computed herein below:

(i). Monthly income Rs.15,000/-.

(ii) Added 40% for future loss of
income=Rs. 6,000/-.

(iii).
Total
income
:
Rs.15,000+6,000=21,000/-.

(iv). After 1/2 deduction for
personal
expenses=Rs.21,000-
10,500=10,500/-.

(v).
Annual
income
Rs.
10,500X12=1,26,000/-.
870 INDIAN LAW REPORTS ALLAHABAD SERIES

(vi). Multiplier applicable : 17.

(vii). Loss of dependency Rs.
1,26,000X17=21,42,000/-.

(viii).
Amount
under
non
pecuniary
heads
Rs.
20,000+50,000=
70,000/-.

(ix). Total compensation Rs.
21,42,000+70,000=22,12000/-.

14. 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."

15. Learned Tribunal has awarded
rate of interest as 6% per annum but we are
fixing the rate of interest as 7.5% in the
light of the above judgment.

16. In view of the above, the appeal
stands partly allowed. Judgment and
award passed by the Tribunal shall stand
modified to the aforesaid extent. The
respondent-
Insurance
Company
shall
deposit the amount within a period of 08
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. Statutory
amount be remitted to the Tribunal.

17. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291 and this
High Court in 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 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.

18. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex
Court in Bajaj Allianz General Insurance
Company Pvt. Ltd. Vs. Union of India and
Others, vide order dated 27.01.2022, as the
purpose of keeping compensation is to
6 All. Smt. Sheela Devi & Ors. Vs. Shri Sumit Kumar & Ors.
871
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.

19. We request the Registrar General
to circulate a copy of this judgement as we
have relied on the recent guidelines issued
by the Apex Court in Bajaj Allianz (Supra)
and the recent judgment of Gujarat High
Court The Oriental Insurance Co. Ltd. v.
Chief Commissioner of Income Tax
(TDS),
R/Special
Civil
Application
No.4800 of 2021 decided on 05.04.2022.

20. We also request the Registrar
General to send the copy of this judgment
to the concerned Judge, if he still in
service, so that he may not commit such
mistakes in future, which are so apparent
that it burdens the High Court.
----------
(2022)06ILR A871
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. 1080 of 2021

Smt. Sheela Devi & Ors. ...Appellants
Versus
Shri Sumit Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri Shreesh Srivastava

Counsel for the Respondents:
Sri Arvind Kumar

A. Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168 & 173 - Motor Accident
claim - Negligence - one Magic loader
suddenly
dashed
deceased
who
was
driving his own car on correct side - Held
- vehicle driven by the deceased also
crossed the white mark, however driver of
the bigger vehicle was suppose to take
more caution is cardinal principle of law of
negligence - driver of the offending
vehicle has not stepped into the witness
box so as to testify as in what manner, the
accident took place - negligence of the
deceased can be attributed 30% as the
speed of the bigger vehicle was much
more than the speed of car when it dashed
with the vehicle driven by deceased and it
pushed the vehicle behind. (Para 12, 13)

B. Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168 & 173 - Motor Accident
claim - Income - Deceased income Rs.
405994 per year as per the income tax
return of year preceding the accident or of
the year when accident occurred- Tribunal
misdirected itself in not considering the
income tax return and decided that the
deceased was earning Rs.358676 which
was the mean of three years - Held - court
considered deceased income to be Rs.
400000 per annum as per the income tax
returns. (Para 16)

Allowed. (E-5)

List of Cases cited :

1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 0 Supreme (SC) 1050

2. New India Assurance Co. Ltd. Vs Somwati &
ors., 2020 LawSuit ( SC) 559

3. Oriental Insurance Co. Ltd. Vs Sangita & ors.,
2020 LawSuit(SC) 559

4. Bajaj Allianz General Insurance Co. Ltd. Vs
Venu Singh & ors., 2016 [3] LawSuit (All) 4465

5. Kumari Kiran & ors. Vs Sajjan Singh & ors.,
2014 LawSuit (SC) 827

6. Sangita Arya & ors. Vs Oriental Insurance Co.
Ltd. & ors., (2020) 5 SCC 327