# Mushtaq Ahmad & Anr v. Sri Riyaz Khan & Ors

- **Citation:** (2022) 7 ILRA 611
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-18
- **Case number:** First Appeal From Order No. 1877 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mushtaq-ahmad-anr-v-sri-riyaz-khan-ors-48815
- **Pages:** 5

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Sections 140, 163, 163-A & 166 - Appeal -
for
enhancement
of
compensation
-
Negligence - after evidence was led -
tribunal recast the issues and decided
claim petition u/s 166 not u/s 163-A -
once the tribunal decided the matter u/s
166 by deciding the issue of negligence, it
was under an obligation to decide the
future loss of income also - hence, Court
granted addition of 40% towards future
loss of income. (Para - 8)

(B) Civil Law - Motor Vehicles Act, 1988 -
Sections 140, 163, 163-A & 166- Appeal -
quantum of compensation - Multiplier of
18 should be applied instead of 15 as
deceased was in age bracket of 21 - 25 as
well as per law lay down in Kurvan Ansari
Alias Kurvan Ali's case Rs. 40,000/- each
to the parents be granted & deduction
towards
personal
expenses
of
the
deceased would be 1⁄2 as deceased was
bachelor. (Para 9)

(C) CIVIL LAW - Motor Vehicles Act, 1988
- Sections -140, 163, 163-A & 166-
Appeal - quantum of compensation - rate
of interest - in the light of Hon'ble Apex
court Judgment & order rendered in
'National Insurance Co. Ltd. Vs Mannat Johal &
ors.' Case - rate of interest should be 7.5%
(Para 10)

(D) CIVIL LAW - Motor Vehicles Act, 1988
- Section - 166: - Income Tax Act, 1961
Section - 194- A(3)(ix): - Appeal - Tax
deduction - in the light of judgment of
Hon'ble Apex court in case of 'Smt.
Hansaguri P. Ladhani's case - insurance
company
is
entitled
to
deduct
the
appropriate amount under the head of
'TDS' accordingly - directions are also
issued to the tribunal to follow the
guidelines issued in case of 'Bajaj Allianz
General Insurance Com. Pvt. Ld. Vs UOI & ors.'.
(Para 13)

Appeal - Allowed Judgement of tribunal
shall stand modified to the aforesaid
extent. (E-11)

List of Cases cited: -

## Text

7 All. Mushtaq Ahmad & Anr. Vs. Sri Riyaz Khan & Ors.
611
this court in getting this old appeal
disposed of.

41. Record be sent back to tribunal
below forthwith.
----------
(2022)07ILR A611
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2022 &
13.07.2022

BEFORE

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

First Appeal From Order No. 1877 of 2008

Mushtaq Ahmad & Anr. ...Appellants
Versus
Sri Riyaz Khan & Ors. ...Respondents

Counsel for the Appellants:
Ms. Anju Shukla, Sri Nigamendra Shukla

Counsel for the Respondents:
Sri Sudhanshu Behari Lal Gour, A.K. Sinha,
Sri Amitanshu Gour

(A) Civil Law - Motor Vehicles Act, 1988 -
Sections 140, 163, 163-A & 166 - Appeal -
for
enhancement
of
compensation
-
Negligence - after evidence was led -
tribunal recast the issues and decided
claim petition u/s 166 not u/s 163-A -
once the tribunal decided the matter u/s
166 by deciding the issue of negligence, it
was under an obligation to decide the
future loss of income also - hence, Court
granted addition of 40% towards future
loss of income. (Para - 8)

(B) Civil Law - Motor Vehicles Act, 1988 -
Sections 140, 163, 163-A & 166- Appeal -
quantum of compensation - Multiplier of
18 should be applied instead of 15 as
deceased was in age bracket of 21 - 25 as
well as per law lay down in Kurvan Ansari
Alias Kurvan Ali's case Rs. 40,000/- each
to the parents be granted & deduction
towards
personal
expenses
of
the
deceased would be 1⁄2 as deceased was
bachelor. (Para 9)

(C) CIVIL LAW - Motor Vehicles Act, 1988
- Sections -140, 163, 163-A & 166-
Appeal - quantum of compensation - rate
of interest - in the light of Hon'ble Apex
court Judgment & order rendered in
'National Insurance Co. Ltd. Vs Mannat Johal &
ors.' Case - rate of interest should be 7.5%
(Para 10)

(D) CIVIL LAW - Motor Vehicles Act, 1988
- Section - 166: - Income Tax Act, 1961
Section - 194- A(3)(ix): - Appeal - Tax
deduction - in the light of judgment of
Hon'ble Apex court in case of 'Smt.
Hansaguri P. Ladhani's case - insurance
company
is
entitled
to
deduct
the
appropriate amount under the head of
'TDS' accordingly - directions are also
issued to the tribunal to follow the
guidelines issued in case of 'Bajaj Allianz
General Insurance Com. Pvt. Ld. Vs UOI & ors.'.
(Para 13)

Appeal - Allowed Judgement of tribunal
shall stand modified to the aforesaid
extent. (E-11)

List of Cases cited: -

1. Kurvan Ansari @ Kurvan Ali Vs Shyam Kishore
Murmu (2021 (0) AIJEL - SC - 67995).

2. National Insruance Co. Ltd. Vs Mannat Johal
& ors. (2019 (2) TAC 705 (SC),

3. A V Padma Vs Venugopal (2012 (12) GLH
(SC) 442,

4. Smt. Hansaguri P. Ladhani Vs The Oriental
Insurance Co. Ltd. (2007 (2) GLH 291,

5. FAFO No. 23/2001 (Smt. Sudesna & ors. Vs
Hari Sigh & anr.),

6. The Oriental Insurance Co. Ltd. Vs Chief
Commissioner of Income Tax (TDS), (R/Special
612 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Application No.4800 of 2021, Decided on
05.04.2022

7. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. (FAFO No. 1818/2012
order Dt. 19.07.2016),

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

1. Heard Sri Nigamendra Shukla,
learned counsel for the appellants and Sri
Amitanshu
Gour,
learned
Advocate,
appearing for Sri S.B.L. Gour, learned
counsel for the respondent.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 20.2.2008 passed by the Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No.2, Bulandshahr
(hereinafter referred to as 'Tribunal') in
Motor Accident Claim Case No.246 of
1999 awarding a sum of Rs.2,90,000/- as
compensation with interest at the rate of
6%.

3. It is an admitted position of fact
that the accident occurred on 28.5.1999.
The claim petition was filed under Sections
163 A, 166 & 140 of the Motor Vehicles
Act, 1988 (hereinafter referred to as 'Act').
The evidence was led and only in the year
2007 the claimants deleted Section 166 and
140 of the Act which was much after the
evidence was recorded. Only heading of
section was corrected and nothing was
corrected in the body of the claim petition,
namely, income of the deceased was Rs.
6,000/- per month and the monetary loss
claimed was Rs.20,000/- which was beyond
the scope of Section 163A of the Act. After
the pleadings were over, the evidence was
closed and the matter was fixed for
arguments, the Tribunal recast the issues
and framed five issues. One of them was
regarding negligence. Had the Tribunal
considered the matter only under Section
163A, there was no question of deciding
the issue of negligence. The Tribunal has
considered the matter as if it was a matter
under Section 166 of the Act and, therefore,
once the Tribunal decides the matter under
Section 166 and not under Section 163 A of
the Act by deciding issue of negligence, it
was under an obligation to decide the future
loss of income.

4. The accident took place on
28.5.1999. The deceased-Isttyak was 25
years of age at the time of accident. The
Tribunal considered his income to be
Rs.2400/- per month, deducted 1/3rd
towards personal expenses of the deceased,
granted multiplier of 15 on the basis of age
of parents and has granted Rs.2,000/- under
non pecuniary damages.

5. It is submitted by learned counsel
for the appellants that the deceased was
earning Rs.3300/- per month and the
Tribunal has erred in not considering the
same. It is further submitted that the
Tribunal has not granted any amount under
the head of future loss of income. It is
further submitted that the Tribunal has
granted multiplier of 15 considering the age
of the parents of the deceased which is bad
and it should be 18 as the deceased was in
the age bracket of 21 to 25.

6. It is lastly submitted by learned
counsel for the appellants that the amount
awarded under non-pecuniary heads and
interest, awarded by the Tribunal or on the
lower side and are required to be enhanced.

7. As against this, learned counsel for
the respondent has contended that the
income which has been considered by the
Tribunal is just and proper as there was no
7 All. Mushtaq Ahmad & Anr. Vs. Sri Riyaz Khan & Ors.
613
income proof. It is further submitted by
learned counsel for the respondent that non
grant of future loss of income and
multiplier of 15 granted by the Tribunal are
just and proper. is just and proper. It is also
contended by learned counsel for the
respondent
that
the
deceased
being
bachelor, the deduction towards personal
expenses of the deceased would be 1/2.

8. Having heard learned counsel for
the parties, income of the deceased, even in
the year of accident can be considered to be
at least Rs.3000/- per month looking the
fact that he was mason by profession. As
the petition was under Section 163 A of
Motor Vehicles Act, 1988, future prospects
cannot be given was the submission of
learned counsel for respondent but, in this
case, the Tribunal has considered the claim
petition as one under Section 166 of Motor
Vehicles Act as originally filed. This is
clear from the order passed in 2008 when
after evidence was led the Tribunal recast
the issues and decided the issue of
negligence which it could not do so if it had
considered the claim under Section 163A
of M.V. Act as negligence cannot be
decided or considered in a claim under
Section 163 A. Therefore, once the
Tribunal has decided the matter under
Section
166
by
deciding
issue
of
negligence, it was under an obligation to
decide the future loss of income which has
not done. Hence, we grant addition of 40%
towards future loss of income of the
deceased. The deduction towards personal
expenses of the deceased would be 1/2 as
the deceased was bachelor. Multiplier of 18
should be granted as the deceased was in
the
age
bracket
of
21-25.
Further,
Rs.40,000/- each to the parents be granted
in view of the decision in Kurvan Ansari
Alias Kurvan Ali Vs. Shyam Kishore
Murmu, 2021 (0) AIJEL-SC 67995.

9. Hence, the total compensation
payable to the appellants is computed
herein below:

i. Income: Rs.3,000/-per month
(Rs.36,000 per year)

ii. Percentage towards future
prospects : 40% namely 14,400/-

iii. Total income : Rs.36,000 +
Rs.14,400 = 50,400/-

iv. Income after deduction of 1/2
towards personal expenses : Rs.25,200/-

v. Multiplier applicable : 18

vi.
Loss
of
dependency:
Rs.25,200 x 18 = Rs.4,53,600/-

vii. Amount under non pecuniary
heads : Rs.40,000 + Rs.40,000/- =
Rs.80,000/-

viii.
Total
compensation
:
Rs.5,33,600/-

10. 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
614 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

11. 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 as directed above. The
amount already deposited be deducted from
the amount to be deposited. Record and
proceedings be sent back to the Tribunal
forthwith.

12. 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
/claimants are neither illiterate or rustic
villagers.

13. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguri 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. The
said decision has also been reiterated by
High Court Gujarat in R/Special Civil
Application
No.4800
of
2021
(The
Oriental Insurance Co. Ltd. v. Chief
Commissioner of Income Tax (TDS)
decided on 5.4.2022.

14.

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 judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.

15. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private Ltd. v. Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation is to
safeguard the interest of the claimants. As
long period has elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.

16. This Court is thankful to both
the counsels for getting this matter
decided.
7 All. Ashish & Ors. Vs. Murti Shri Ramchandra Virajman & Ors.
615
In Ref: Civil Misc. Correction Application
No.5 of 2022

This is basically a review filed in the
grab of correction.

We uphold the order of the learned
trial Judge and grant the recovery rights to
the insurance company subject to the
amount be deposited as the claimants are
the third party.

It is stated that the order could be
uploaded only in the month of June, 2022,
we extended the time by four more weeks.

This review is partly allowed.

We thank Shri Nigamendra Shukla for
ably assisting this Court.
----------
(2022)07ILR A615
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.06.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

First Appeal From Order No. 3841 of 2018

Ashish & Ors. ...Appellants
Versus
Murti Shri Ramchandra Virajman & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Kartikeya Saran, Sri Ujjawal Satsangi

Counsel for the Respondents:
Sri Kuldeep Singh, Sri Santosh Kumar
Mishra, Sri Vipin Vinod

(A) Civil Law - Civil Procedure Code, 1908
- Section 92 - Order 1, Rule 8, Order 7,
Rule 11, Order 32, Rules 1: - Defendants'
Appeal - against remand order of Civil
Appellate Court for fresh decision before
Trial court - Maintainability of - Suit filed
by a representative - under Order 1 rule 8
-
seeking
permanent
injunction
for
restraining
the
defendants-appellants
from
management
&
selling
of
the
property in question as well as for
transferring the entire management work
including right of maintenance of the deity
from appellants to the Administration -
objection taken under Order 7 rules 11 -
trial court rejected - the Plaint on the
ground of 'non-disclosure of cause of
action' & 'suit barred by law' - court held
that - 'no cause of action' is different from
a Plea that 'Plaint does not disclosure a
cause of action' - words 'Cause of Action'
means 'any cause of action' - hence suit is
maintainable - and admittedly, it is
defendant's own case that neither public
or private Trust was created nor any deity
was installed - thus, section 92 not
attracted - hence, rejection of plaint by
trial court is not proper - order of lower
appellate court needs no interference -
appeal dismissed.(Para - 18, 20, 21, 22, 30,
32, 33)

Appeal - Dismissed. (E-11)

List of Cases cited: -

1. Rajendra Bajoria & ors. Vs Hemant Kumar
Jalan & ors., Civil Appeal Nos.5819-5822 of 2021

2. Bhupati Nath Smrititirtha Vs Ram Lal Maitra
1909 Law Suit (Cal) 89

3. Chairman Madappa Vs M.N. Mahanthadevaru
& ors. AIR 1966 SC 878

4. Ranchhoddas Kalidas & ors. Vs Goswami
Shree Mahalaxmi Vahuji & ors. AIR 1953 Bom.
153

5.
Kumaravelu
Chettiar
&
ors.
Vs
T.P.
Ramaswami Ayyar & ors. AIR 1933 PC 183

6. St. of Orissa Vs Klockner & Co. (1996) 8 SCC
377

7. Raptakos Brett and Co. Ltd. Vs Ganesh
Property 1998 (7) SCC 184