# National Insurance Co. Ltd, Allahabad v. Lalita Devi & Ors - **Citation:** (2021) 9 ILRA 771 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-08-05 - **Case number:** F.A.F.O. No. 2938 of 2010 - **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-allahabad-v-lalita-devi-ors-47395 - **Pages:** 5 ## Headnote Sri Satya Deo Ojha, Sri Sanjay Kumar Shukla Motor accident claim-deceased was in age bracket of 31-35-25 - income to be calculated as per judgment held in Pranay Sethi-amount under non-pecuniary heads is enhanced-amount of compensation requires to be recalculated-amount enhanced. Appeal partly allowed. (E-9) List of Cases cited: ## Text 9 All National Insurance Co. Ltd, Allahabad Vs. Lalita Devi & Ors. 771 if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma Vs. Venugopal reported in 2012 (1) GLH (SC) 442, the order of investment is not passed because respondents are neither illiterate nor rustic villagers. 12. We are thankful for both the counsels for getting the appeal decided without record and ably assisting the Court. ---------- (2021)09ILR A771 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.08.2021 BEFORE THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. THE HON'BLE SUBHASH CHAND, J. F.A.F.O. No. 2938 of 2010 National Insurance Co. Ltd, Allahabad ...Appellant Versus Lalita Devi & Ors. ...Respondents Counsel for the Appellant: Sri Amit Manohar, Sri Krishna Mohan Rai Counsel for the Respondents: Sri Satya Deo Ojha, Sri Sanjay Kumar Shukla Motor accident claim-deceased was in age bracket of 31-35-25 - income to be calculated as per judgment held in Pranay Sethi-amount under non-pecuniary heads is enhanced-amount of compensation requires to be recalculated-amount enhanced. Appeal partly allowed. (E-9) List of Cases cited: 1. The Managing Director, T.N.S.T.C. Vs Sripriya & ors. 2007 (3) T.A.C. 27 2. National Insurance Co. Ltd. Vs Pranay Sethi & ors., 2017 0 Supreme (SC) 1050 3. Sarla Verma Vs Delhi Transport Corp., (2009) 6 SCC 121 4. A.Vs Padma Vs Venugopal, Reported in 2012 (1) GLH (SC), 442 5. Smt. Hansaguti P. Ladhani Vs The Oriental Insurance Co. Ltd., reported in 2007(2) GLH 291 (Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J. & Hon'ble Subhash Chand, J.) 1. Heard Sri Amit Manohar, learned counsel for the appellants, Sri S.D.Ojha, learned counsels for the respondent and perused the judgment and order impugned. 2. This appeal has been preferred against the judgment and award dated 21.4.2010 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Mirzapur (hereinafter referred to as 'Tribunal') in M.A.C.No.52 of 2006 awarding a sum of Rs.6,21,500/- with interest at the rate of 5% as compensation. 3. On the last occasion, we have requested Sri Amit Manohar, learned counsel for appellant to keep the officer present as we are of the opinion that judgment of Jitendra Khimshankar Trivedi and Others Vs. Kasam Daud Kumbhar and others, 2015(1)T.A.C.637 (S.C.) and the judgment in National Insurance Company Limited Vs. Smt. Vidyawati Devi and 2 others decided on 27.7.2016 wherein one of us (Hon'ble Kaushal Jayendra Thaker, J.) was a member of the Bench, may apply to the facts of this case as the Tribunal had 772 INDIAN LAW REPORTS ALLAHABAD SERIES not granted any amount under the head of future loss of income. 4. It is further submitted by learned counsel for appellant Sri Amit Manohar relying on the decision of Apex Court that multiplier of 17 was taken with the help of Second Schedule to the Motor Vehicles Act, 1988 is not sustainable in view of the decision of Supreme Court in The Managing Director, T.N.S.T.C. Vs. Sripriya and others 2007 (3) T.A.C. 27. 5. Sri S.D. Ojha, learned counsel for claimants has submitted that he would like to argue for enhancement and Sri Amit Manohar, learned counsel for appellant had contended that he would like to argue for contributory negligence of the driver and also argue that the jeep driver, owner and Insurance company are not joined as parties. 6. We have tried for conciliation in this matter on the basis of decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and also perused the record. We are thankful to Sri Amit Manohar who has taken assistance of Sri N.K. Srivastava on the panel Advocate of National Insurance Company, Sri S.D. Ojha, learned counsel for respondent and also Sri F.H. Rizvi who has deputed by the Insurance Company is present before this Court today for amicable resolution of the dispute so that insurance company can save interest as the grounds raised are now covered by the judgment in Pranay Sethi (Supra). 7. It is submitted by learned counsel for the respondent counsel that the deceased was 34 years of age at the time of accident and was in the profession of selling the fruits. His income was considered by the Tribunal to be Rs.4,500/- which is not just and proper. It is further submitted that the Tribunal has not granted any amount towards future loss of income as the judgment in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 was applicable in those times but now the compensation has to be considered in light of the judgment in Pranay Sethi (Supra). It is submitted that the judgment in Pranay Sethi (Supra) was not available in those time and in the alternative it is submitted that even if the judgment of Pranay Sethi (Supra) has not to be applied the compensation be redetermined. 8. The income of the deceased considered at Rs.4500/- per month has been considered by the Tribunal without any proof and is on higher side. The multiplier applicable is also on the higher side. It is further submitted that the deduction towards personal expenses of the deceased should be 1/3rd as he was survived by widow, one minor son, one minor daughter and parents. It is also submitted that interest should be 6% and not 12%. It is further submitted by Sri Amit Manohar that no fitness certificate was produced. 9. As far as the issue of negligence is concerned, we have perused the record. The learned Tribunal has considered this issue threadbare. As far as the deceased was concerned the vehicle- Marshal in which the deceased was travelling has rammed into by Truck No. UP-53 T-2115 and because of this the deceased suffered injury and died on the spot. The driver of the truck fled away from the place of accident. The national insurance company with which the vehicle was insured has filed reply. The Tribunal came to the 9 All National Insurance Co. Ltd, Allahabad Vs. Lalita Devi & Ors. 773 definite conclusion with the accident occurred due to sole negligence of the driver of the truck. The evidence of PW-1, PW-2 and PW-3 were also against the driver of truck. 10. The issue of negligence has been decided against the driver of the truck as the truck rammed into stationary marshal jeep and the impact was such that Satish Kumar and Vishnu Kumar sustained injuries. Deceased, Dhanajay Kumar Jaiswal, and Satish Chandra Jaiswal died on the spot. Raj Kumar Gupta was not driving the vehicle. The eye witnesses who had gone for answering in nature call have categorically stated in their oral testimony that Marshal jeep was being driving by Satish Chandra Shamra. The way the truck driver came from the opposite direction, the impact was such the three people in the jeep died on the spot. The FIR, site plan and the charge sheet will not permit us to take a different view than that taken by the Tribunal. 11. The contention is that the truck did not have valid permit, did not have licnece to ply and was covered by the judgment in National Insurance Company Limited Challa Bharatamma and others AIR 2004 SC 4882 . The fact as decided in issue no. 2 and 3 will also not permit us to accept this submission as it was never contested before the Tribunal below and therefore we are unable to grant what is known as recovery rights. 12. This takes us to the submission that the driver did not have a effective driving licence. The issue no. 2 and the driving licence no.9800/1993 was for LMV and HTV ( PE) and was valid from 11.11.2005 to 10.11.2008. The accident occurred on 25/26.1.2006. The vehicle was insured on the said date and now to contend that there was no fitness certificate which was not proved before the Court below and therefore the said aspect also cannot be accepted. 13. We are unable to accept the submission of learned counsel for the appellant that the accident occurred due to contributory / composite negligence of the driver of both the vehicles. 14. As the matter is taken for conciliatory disposal, we recalculate the compensation payable to the claimants. Normally the Courts grant 7.5/% or 9% interest considering the year of accident but we were suggested that we should not grant the interest at the rate of 7.5% as the insurance company has agreed for conciliation. 15. Heard the counsels for the parties and considered the factual data, this Court finds that the accident occurred on 25/26.01.2006 causing death of Dhananjay who was 32 years of age at the time of accident. To which as the deceased was in the age bracket of 31-35, 25% of the income will have to be added in view of the decision of the Apex Court in Pranay Sethi (Supra). The amount under nonpecuniary heads should be at least Rs.70,000/- in view of the decision in Pranay Sethi (Supra). In view the facts and circumstances of the case, this Court feels that the amount of compensation requires to be recalculated and no interference is called for as far as deduction of personal expenses of the deceased is concerned. 16. Hence, the total compensation payable to the appellants is computed herein below: 774 INDIAN LAW REPORTS ALLAHABAD SERIES i. Annual Income Rs.54,000/- (Rs.4500 x 12) ii. Percentage towards future prospects : 25% namely Rs.13,500/- iii. Total income : Rs.54000/- + 13,500 = Rs.67,500/- iv. Income after deduction of 1/3rd towards personal expenses : Rs.22,500/- v. Multiplier applicable : 16 vi. Loss of dependency: Rs.45000 x 16 = Rs.7,20,000/- vii. Amount under non pecuniary heads : Rs.70,000/- viii. Total compensation : Rs.7,90,000/-. 17. It is agreed that the rate of interest even in the year 2009 was not 5% and as the parties have decided to bury their dispute, we enhance interest to 6%. 18. 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 appellant -Insurance Company shall deposit the remaining 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 amount is deposited. The amount already deposited be deducted from the amount to be deposited. Record and proceedings be sent back to the Tribunal forthwith. 19. 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. 20. 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. 21. 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. 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