# National Insurance Co. Ltd., Allahabad v. Smt. Urmila Devi & Ors

- **Citation:** (2020) 8 ILRA 388
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-02
- **Case number:** FAFO No. 1022 of 1999
- **Bench:** Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-allahabad-v-smt-urmila-devi-ors-46048
- **Pages:** 10

## Headnote

A. Civil Law - Motor Accident Claim -
Driving Licence - Evidentiary value -
Strict Proof - Necessity - Motor Vehicles
Act, 1988 is a beneficent and benevolent
piece of legislation - It has been
enacted to award just and reasonable
compensation to the victims of the road
accident - While deciding the claim
petition filed by the claimants, it is not
necessary for the Tribunal to insist for
strict proof of the documents produced
by the claimants - Tribunal is obliged
not to make these strict principles
applicable to the proceedings before the
Claims
Tribunal
if
the
documents
produced by the claimants are found to
be genuine and correct - The document,
i.e., driving lincence, unless proved to
be unreliable or proved to be a fake
driving lience, has to be considered and
not be neglected. (Para 7 and 8)
B. Civil Law - Motor Accident Claim -
Computation of Compensation - Future
loss - Multiplier - The amount of
pension or other benefits received by
the family on account of death of a
person in service cannot be deducted -
Held, the Pay Commission's report if we
take into consideration which came into
effect
after
2006
but
was
made
applicable from 1999 a rough figure of
addition of 70 per cent for future loss of
income would be just and proper - The
multiplier should be 17 as per Sarla
Varma's
case.
(Para
16
and
17)
8 All. National Insurance Co. Ltd., Allahabad Vs. Smt. Urmila Devi & Ors.
389
C. Civil Law - Motor Accident Claim -
Determination of Interest - Rate of
interest should be 9 per cent from the
date of filing of claim petition before
Tribunal till the Judgment and 6 per
cent thereafter
till
the
amount is
deposited. (Para 19)
Appeal partly allowed (E-1)
Cases relied on :-

## Text

388 INDIAN LAW REPORTS ALLAHABAD SERIES
of law as was formulated at the time of
admission of the Second Appeal is also
answered
in
favour
of
the
Plaintiff/Appellant. When in fact, the
agreement to sell was not a result of
fraud and misrepresentation as had been
found by the Trial Court then the suit
ought to have been decreed in toto. The
Trial Court had concluded that the
agreement to sell was entered into and
had also correctly concluded that there
was no fraud or misrepresentation at the
time when the agreement to sell was
entered into.

15.

I
also
find
that
the
Plaintiff/Appellant was always ready and
willing to perform his part of the
`agreement as he had put to notice the
Defendant to reach the Registrar's office.

16. Under such circumstances, the
substantial question no. 2 is also
answered
in
favour
of
the
Plaintiff/Appellant.

17. Under such circumstances, the
Second Appeals No. 1403 of 2014 and
1404 of 2014 are allowed. The Plaintiff's
Suit for the execution of the sale deed
upon the payment of the remaining
amount of Rs. 15,000/- is decreed. The
cross-claim
of
the
Defendant
that
possession be handed over to the
Defendant is dismissed. The Suit is,
therefore, decreed in toto.
----------
(2020)08ILR A388
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.06.2020

BEFORE

THE HON'BLE KAUSHAL JAYENDRA
THAKER, J.
FAFO No. 1022 of 1999
with
FAFO No. 1010 of 1999

National Insurance Co. Ltd., Allahabad
 ...Appellant
Versus
Smt. Urmila Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri K.S. Amist

Counsel for the Respondents:
Sri C.P. Mishra

A. Civil Law - Motor Accident Claim -
Driving Licence - Evidentiary value -
Strict Proof - Necessity - Motor Vehicles
Act, 1988 is a beneficent and benevolent
piece of legislation - It has been
enacted to award just and reasonable
compensation to the victims of the road
accident - While deciding the claim
petition filed by the claimants, it is not
necessary for the Tribunal to insist for
strict proof of the documents produced
by the claimants - Tribunal is obliged
not to make these strict principles
applicable to the proceedings before the
Claims
Tribunal
if
the
documents
produced by the claimants are found to
be genuine and correct - The document,
i.e., driving lincence, unless proved to
be unreliable or proved to be a fake
driving lience, has to be considered and
not be neglected. (Para 7 and 8)
B. Civil Law - Motor Accident Claim -
Computation of Compensation - Future
loss - Multiplier - The amount of
pension or other benefits received by
the family on account of death of a
person in service cannot be deducted -
Held, the Pay Commission's report if we
take into consideration which came into
effect
after
2006
but
was
made
applicable from 1999 a rough figure of
addition of 70 per cent for future loss of
income would be just and proper - The
multiplier should be 17 as per Sarla
Varma's
case.
(Para
16
and
17)
8 All. National Insurance Co. Ltd., Allahabad Vs. Smt. Urmila Devi & Ors.
389
C. Civil Law - Motor Accident Claim -
Determination of Interest - Rate of
interest should be 9 per cent from the
date of filing of claim petition before
Tribunal till the Judgment and 6 per
cent thereafter
till
the
amount is
deposited. (Para 19)
Appeal partly allowed (E-1)
Cases relied on :-
1. Ram Chandra Singh Vs Rajaram & ors., AIR
2018 SC 3789
2. First Appeal From Order No.1818 of 2012 (
Bajaj Allianz General Insurance Company
Limited Vs Smt. Renu Singh & ors.) decided
on 19.7.2016
3. Mohammed Siddique & anr. Vs National
Insurance Co. Ltd. & ors., 2020 ACJ 751
4. Suresh Chandra Bagmal Doshi & anr. Vs
New India Assurance company Limited & ors.,
(2018) 15 Supreme Court Cases 649
5. Sunil Sharma & ors. Vs Bachitar Singh & ors.,
2011 (3) T.A.C. 629 and Manasvi Jain Vs Delhi
Transport Corporation & ors., 2014 ACJ 1416
6. Suman & ors. Vs Anisa Begum & anr. 2020 ACJ 555
7. Malarvizhi & ors. Vs United India Insurance
Co. Ltd. & anr., 2020 ACJ 526
8. First appeal No. 1373 of 2010 (Guj.), New
India Assurance co. Ltd. Vs Hiraben WD/O
Motibhai Ganabhai Prajapati
9. National Insurance Company Limited Vs
Pranay Sethi & ors., 2017 Supreme (SC) 1050
10 K.R. Madhusudhan & ors. Vs Administrative
Officer & anr., (2011) 4 SCC 689.
11. Sarla Verma Vs DTC, (2009) 6 SCC 121

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

1. Both these appeals arise out of
the
same
Judgment/award
dated
29.5.1999 passed by Motor Accident
Claim Tribunal VIth, Allahabad (hereinafter
referred to as the Tribunal) in M.A.C.P. No.
227 of 1997 whereby the objections raised
by the Insurance Company regarding breach
of policy condition were rejected and
compensation was awarded to the claimants.

2. Being aggrieved by the award,
National Insurance Company Ltd. filed
above First Appeal From Order No. 1022
of 1999 before this Court with the
submission that the compensation so
awarded is not as per the settled legal
position of law as enunciated by High
Court and the Apex Court and the
Insurance Company is no liable as there
is breach of policy condition and also
contended that it is a case of contributory
negligence. A new ground in memo of
appeal is raised, namely, insured vehicle
was being towed by one another vehicle
as it had met with an accident earlier.
However, at the outset, this ground in the
appeal was neither raised before the
Tribunal nor it is substantiated by leading
any cogent evidence and, therefore, the
said submission requires to be rejected at
the outset without delving further in the
matter. Being dissatisfied with the above
award, the claimants have also preferred
above First Appeal From Order No. 1010
of 1999 requesting for enhancement of
compensation awarded by the Tribunal
for the death of sole bread winner, a
police constable of 34 years, who died in
the vehicular accident leaving behind six
heirs.

3. Claim Petition No. 227 of 1997
was instituted by widow Smt. Urmila
Devi and five minor children of young
police Constable, Ashok Kumar Shukla,
who died at the young age of about 34
years. The Tribunal considered his
income as Rs.4,000/- as per salary slip. It
is submitted by counsel for claimants that
390 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribunal did not award any amount under
the head of future prospect and deducted
1/3rd towards personal expenses of the
deceased from the the assessed income. It
applied multiplier of 16 and added
Rs.20,000/-
for
loss
of
love
and
affections and loss of consortium. It
further granted Rs.2,000/-for funeral
expenses and Rs.2,000/- for cost of
litigation and thus, it awarded total sum
of Rs.7,95,000/- as compensation with 12
per cent rate of interest.

4. The offending vehicle being
insured with the Insurance Company is
not in dispute. Unfortunately, neither
before the tribunal nor before this Court,
the owner has appeared so as to contest
the litigation. Further the driver or the
owner did not produce any driving
licence and, therefore, it is contended by
the
Insurance
Company
that
the
Judgment of the Tribunal requires to be
modified.

5. Brief facts, which are required to
be gone into are that the accident took
place involving the truck insured by the
Insurance Company. The parties are
referred to as claimants as they appear
before
the
Tribunal
and
Insurance
company as it appeared before the
Tribunal. The deceased was a police
constable is not in dispute. The claimants
filed copy of the driving licence of the
driver of the truck is also not in dispute.
However, the issues, which arise before
this Court for decision, are as to the
liability of Insurance Company, the
quantum
awarded
and
whether
document, namely, the copy of the
driving
licence
produced
by
the
claimants
should
have
been
not
considered
by
the
Tribunal
and
negligence.

The accident has taken place on
1.1.1997 at 1.15 a.m. when the deceased
was returning on feet after patrolling
duty. At that point of time, the driver of
the offending truck came from behind
without blowing any horn and dashed
with the police constable on the road
whereby he died instantaneously. The
claimants produced several documentary
evidence and claimed Rs.25,00,000/- as
compensation in the claim petition filed
under Section 163 A and 166 of Motor
Vehicles Act as it was not settled law that
whether claim petition under Section
163A would also be maintainable or not.
However, while going through the
Judgment, it is clear that the Tribunal
considered the matter under section 166
of the Motor Vehicles Act.

6. The Insurance Company in its
reply, submitted that it was a case of sole
negligence of the deceased as he was
walking in the middle of the road. It was
further contended that the truck was
driven in breach of policy condition and
that the driver and the owner of the
vehicle did not appear before the
Tribunal nor produced any documentary
evidence and, therefore, it should be held
non liable to indemnify the owner and in
turn the claimants. Before the Tribunal,
claimants examined Urmila Devi as P.W.
1 and Rajiv Kumar as P.W.2 and
produced First Information Report, Post
Mortem Report, site plan, technical
report, charge sheet, driving licence of
the driver Tej Bahadur Singh, who was
driving the vehicle U.M.W 826, photo
copy of the Fifth Pay Commission's
report and other relevant documents
pertaining to the service conditions of the
deceased. the Insurance Company neither
produced any document nor examined
any witness. In the backdrop of factual
8 All. National Insurance Co. Ltd., Allahabad Vs. Smt. Urmila Devi & Ors.
391
data
the
compensation
and
the
exoneration of the Insurance Company
will have to be looked into.

7. At the outset, as far as, the
objection of the Insurance Company
regarding consideration of the copy of
the driving lience is concerned, the law is
well settled that it has not been proved by
evidence by the Insurance company that
the said document is either a forged
document or it is not issued by the
transport
authorities,
the
claimants
cannot be expected to find original
document and the same document has to
be considered by the Tribunal. The
admitted position of law is that Motor
Vehicles Act, 1988 is a beneficent and
benevolent piece of legislation. It is an
admitted fact that the Motor Vehicles
Act, 1988 is a benevolent piece of
legislation, which has been enacted to
award just and reasonable compensation
to the victims of the road accident and
therefore, according to this Court, while
deciding the claim petition filed by the
claimants, it is not necessary for the
Tribunal to insist for strict proof of the
documents produced by the claimants
and the strict proof as per Indian
Evidence Act is not to be insisted upon
and the Tribunal is obliged not to make
these strict principles applicable to the
proceedings before the Claims Tribunal
if the documents produced by the
claimants are found to be genuine and
correct. If the Tribunal on facts has
found them to be correct and has relied
upon those documents, this court while
reappreciating those documents also find
them to be genuine. It can be relied for
coming to the conclusion that the driver
of the said vehicle, namely, truck had
proper driving licence. The Insurance
Company did not lead any evidence to
prove that the licence was a fake licence.
In absence of proving the same, this
Court cannot accept the submission of
the learned counsel for the Insurance
Company.

8. Hence, the submission that the
said document should not have been
considered by the Tribunal and the
Insurance company should have been
exonerated, cannot be accepted. I am
unable to accept this submission as the
proposition of law is very clear that the
document, i.e., driving lincence, unless
proved to be unreliable or proved to be a
fake driving lience, has to be considered
and not be neglected. The Tribunal has
considered this aspect in detail and has
rejected the contention of the Insurance
company that it is not liable. The driver
was Tej Bahadur Singh, who was driving
the offending vehicle on the fateful day
and was charge-sheeted. His driving
licence fitness and other documents were
there, therefore, the Tribunal has come to
the conclusion that there was no breach
of policy condition. The Tribunal has
dealt with the issue no. 2 raised by the
Insurance Company that whether the
driver of the said vehicle was driving the
vehicle in breach of policy conditions.
The Insurance Company has only averred
in the written statement that the vehicle
was being driven against the policy
conditions. The Tribunal referred the
Judgment reported in 1985 TAC 396 of
this High court and held that it was the
duty of the Insurance Company to prove
that the vehicle was being driven in
breach
of
policy
condition.
The
submission of the Insurance company has
been that the driver and the owner should
have appeared before the Tribunal then
only the same document would have
been relied on. The Tribunal has given
392 INDIAN LAW REPORTS ALLAHABAD SERIES
cogent reasons for not accepting this
submission. I am in complete agreement
with the Tribunal. It is a cardinal
principle of law that the person who
asserts a fact must prove the same. The
strict proof of law of evidence as
enunciated in Civil Procedure cannot be
very strictly made applicable in cases of
Motor Vehicles Act, 1988. Otherwise,
the object and purpose of beneficial
legislation would be frustrated. In that
view of the matter, the contention of the
Insurance company that the Tribunal has
materially erred cannot be accepted. I
also supported in my view by the
decision of the Apex Court in the case of
Ram Chandra Singh Vs. Rajaram and
others, AIR 2018 SC 3789, wherein it is
held that the Insurance company should
prove that the licence of the driver was
fake driving licence. In this case, it is not
proved that the licence produced by the
claimant was not a proper driving
licence.

9. This takes this Court to the other
grounds raised by the Insurance company
in its appeal, i.e., First Appeal From
Order No. 1022 of 1999, namely, that
there is contributory negligence on the
part of the deceased and that it is not
proved that the driver of the said vehicle
was in any way negligent. It is further
submitted that the accident was not
admitted which is also one of the grounds
raised in this appeal. It is submitted in
this appeal, which was never contended
before the Tribunal, that the said truck
which is alleged to be involved in the
present accident, had already met with a
accident and was being taken to the
workshop towing with other vehicle and
during this period the accident occurred
with the vehicle, which was propelling
the said vehicle and the said vehicle was
not made a party to the litigation and,
therefore, also the claimants are not
entitled
to
be
reimbursed
by
the
Insurance Company. Unfortunately, this
was not the argument or submission ever
raised before the Tribunal nor was it
proved that the claimants have very
cleverly not made the other vehicle a
party. This argument is raised in the
memo of appeal without any proof. The
Insurance
company
has
not
even
produced any witness nor is there any
application for leading any additional
evidence for a period of about 19 years,
hence, this submission also fails.

10. This takes this Court to issue of
negligence raised in the memo of appeal
of Insurance company so as to contend
that the deceased was solely negligent
and or in the alternative, he was coauthor of the accident.

11. The Division Bench of this
Court in First Appeal From Order
No.1818 of 2012 ( Bajaj Allianz
General Insurance Company Limited
Versus Smt. Renu Singh and others)
decided on 19.7.2016 has held as under:
-

"16.
The
term
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
8 All. National Insurance Co. Ltd., Allahabad Vs. Smt. Urmila Devi & Ors.
393
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
cause physical injury to person. The
degree of care required, of course,
depends upon facts in each case. On
these broad principles, 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,
1988
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 should 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. This is termed negligence.

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. In light of the above
discussion, I am 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, Courts 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.

21. By the above process, the
burden of proof may ordinarily be cast
394 INDIAN LAW REPORTS ALLAHABAD SERIES
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
of driver of another vehicle."

12. While going through the F.I.R,
the charge sheet and the Judgment of the
Tribunal impugned in these appeals, it is
very clear that the deceased was on his
feet and it was night hours. It goes to
show that the accident occurred at about
on 1.1.1997 at 1.15 (night). P.W. 2,
namely, Rajiv Kumar, who is an eye
witness stated that he was walking along
with deceased and they were returning
after performing their duties at H.L.
Factory.
When
they
reached
at
Munshiganj Sarai at about 1.15 a truck
bearing Registration No. UMW 82,
which came rashly and negligently, and
dashed deceased. Constable 48 Jitendra
Kumar Singh and Constable 355 Harun
Khan flashing their torch had seen the
driver and the number of truck and the
truck was taken in their custody on the
place qua Munshiganj. District Sultanpur
and the driver had abandoned the said
truck. It was stated that the driver had
abandon the said truck after hundred
meters of the place of occurrence. There
were blood marks on the tyres of the said
truck, which were fresh. There was
confessional statement of the son of
owner that the driver confessed that his
truck had met with an accident. However,
we may not consider this part of the
evidence as being an inadmissible
evidence. However, all these facts go to
show that the vehicle was involved in the
accident and the evidence also shows that
deceased
Ashok
Kumar
and
other
accompanying witnesses were walking
on their correct side and he has even
negatived the suggestion that he and
deceased were walking in the middle of
the road. While going through the record,
it is clear that the Insurance Company
has not been able to dislodge the
evidence of this witness and his evidence
requires to be be accepted. In this view of
the matter, can it be said that the tribunal
has committed any error in holding that
the vehicle was involved in the accident
and that the driver of the said truck was
solely negligent. The term 'negligence'
partakes with it failure to exercise
required degree of care and caution
expected of prudent driver. Driver did
not take proper care and caution and,
therefore, his act was a tortuous act. The
Insurance Company in paragraph 7 has
accepted the accident but has not
accepted the involvement of the vehicle.
They have not examined any eye witness,
leave apart any witness so as to
substantiate their claim of negligence of
the deceased. The Tribunal has also
drawn adverse inference as the driver of
the said vehicle was not examined.
However, as far as the deceased is
concerned, looking to the F.I.R. and
manner in which the accident has
occurred, it cannot be said that the
deceased has in any way contributed to
the accident having taken place. The
accident was authored by the driver of
the truck and his negligence as attributed
hundred per cent is to be accepted and
the finding of the Tribunal is accepted.
Thus,
the
concept
of
contributory
negligence pressed into service by the
Insurance Company cannot be accepted.
Even as per the principles enunciated by
the Apex Court in Mohammed Siddique
and another Vs. National Insurance
Co. Ltd. and others, 2020 ACJ 751,
dated 8.1.2020, it cannot be said that the
Tribunal has committed any error in
holding that the driver of the truck
8 All. National Insurance Co. Ltd., Allahabad Vs. Smt. Urmila Devi & Ors.
395
negligent. The reasoning of the Tribunal
cannot be flawed. The fact that the
deceased was on his feet and there was
no evidence to show that there was any
wrongful act on the part of the deceased
victim which contributed either to the
accident or to the nature of the injuries
which he had sustained. Hence, the said
issue
is
also
decided
against
the
Insurance Company.

13. This takes this Court to the
compensation to be awarded. At the
outset Sri K.S. Amist has submitted that
the interest at 12 per cent could not have
been granted and that the quantum
requires to be reconsidered. Paragraphs
13 and 14 of the memo of appeal (FAFO
No. 1022 of 1999) reads as under:-

"13. Because the salary of the
deceased as Rs.6000/- per month and the
dependency of claimants on deceased as
Rs.4000/- per month, fixed by the Motor
accident claims Tribunal, are high and
exhorbitant.

14. Because future increaement of
salary could not be taken into account and the
Motor Accident Claims Tribunal illegally and
arbitrarily fixed the salary of the deceased as
Rs.6000/- per month taking into consideration
the future increasement of the salary."

14. It is further submitted that the
family of the deceased would be getting
family pension as deceased was a
Constable in the police force. It is further
submitted that the multiplier of 16 is
erroneous and that Rs.20,000/- under non
pecuniary damages is also bad. The
Tribunal according the K.S. Amist could
not have awarded any interest.

15. Learned counsel for the
appellants in First Appeal From Order
No. 1010 of 1999 has contended that the
deceased
was
in
service
and
the
claimants should have granted what is
known as future loss of income, but, it
has not been considered by the Tribunal
and
that
Tribunal
ought
to
have
considered this fact has not considered
that the deceased would have been
entitled to full fledged pension had this
accident not occurred. It is further
submitted that the deceased left behind
five minor children and his widow and
Tribunal should have deducted 1/5th and
not 1/3rd for his personal expenses. The
computation of the compensation is on
lower side. Sri Mishra appearing for the
claimant has relied on decision rendered
in the case of Suresh Chandra Bagmal
Doshi and another Vs. New India
Assurance
company
Limited
and
others, (2018) 15 Supreme Court Cases
649, and has contended that this Court
should consider that future rise of income
of the deceased was 100 per cent. He has
further contended that it is settled legal
position that the amount of pension
received cannot be deducted from the
compensation paid.

16. At the outset, before I start
computing compensation, it has to be
borne in mind that the amount of pension
or other benefits received by the family
on account of death of a person in service
cannot be deducted. I am supported in
my view by the decision of the Apex
court in Sunil Sharma & Others Vs.
Bachitar Singh & Others, 2011 (3)
T.A.C. 629 and Manasvi Jain Vs. Delhi
Transport Corporation and others,
2014 ACJ 1416 and the Judgment of this
Court in First Appeal From Order No.
3159
of
2013,
Regional
Manager,
U.P.S.R.T.C. Vs. Smt. Nisha Dube and
others decided on 9.12.2016, wherein it
396 INDIAN LAW REPORTS ALLAHABAD SERIES
has been held that the deduction of
House
Rent,
Allowance,
Medical
Allowance,
Dearness
Allowance,
Dearness Pay, Employees Provident
Fund, Government Insurance Scheme,
General Provident Fund, C.C.A. cannot
be made. Recently the Apex Court in
Mohammed Siddique (supra) holding
that the Tribunal is under an obligation to
award what is known as future loss of
income, Judgment of this High Court in
2020 ACJ 555, Suman and others Vs.
Anisa Begum and another, the future
loss of income will have to be granted
and the multiplier will have to be granted
on the basis of the age of the deceased. In
the decision in Malarvizhi and others
Vs. United India Insurance Co. Ltd.
and another, 2020 ACJ 526 wherein
principles of grant of rate of interest and
principles for deciding the quantum in
fatal accident have been considered. In
dealing with the similar case in First
appeal No. 1373 of 2010 (Guj.), New
India Assurance co. Ltd. Vs. Hiraben
WD/O Motibhai Ganabhai Prajapati,
the undersigned has held that the
quantum will have to be calculated as the
deceased
was
a
person
having
Government job and the earlier Judgment
of 2012 in K.R. Madhusudan (supra)
was not considered by the Apex Court
while dealing with the matter of salaried
persons
in
the
case
of
National
Insurance
Company
Limited
Vs.
Pranay Sethi and Others, 2017 0
Supreme (SC) 1050 and but has been
been considered by earlier Judgment, i.e.
K.R. Madhusudhan and others Vs.
Administrative Officer and another,
(2011) 4 SCC 689. It has been now
reiterated in Suresh Chandra Bagmal
Doshi and another (supra) wherein the
Judgment in the case of Pranay Shetty
has been distinguished and it has been
held that computation for future loss of
income can be considered in a different
manner also for persons having job. In
the said decision the Apex Court
considered both Sarla Verma Vs. DTC,
(2009) 6 SCC 121, and Pranay Shetty
(supra).

17. Having heard the learned
counsel for the parties and considered the
factual data, income of the deceased can
be considered to be Rs.4,000/- per month
to which we can add what he would have
earned by way of Fifth Pay Commission
and Sixth Pay commission, namely,
2000, in 2012 and 2019. Pay of the
deceased would increase every year as he
would be getting yearly increments and
the Pay Commission's recommendations
and revise what is known as yearly
increment and at the time of his
retirement, even if, we do not consider
the Pay Commission's reports the DA
would have increased and his pay would
be
Rs.18,217/-
and
though
this
calculation is by the learned Advocate
placed on record of the Tribunal. The Pay
Commission's report if we take into
consideration which came into effect
after 2006 but was made applicable from
1999 a rough figure of addition of 70 per
cent for future loss of income would be
just and proper. As per Madhusudan
(supra) the average can be taken. The
multiplier should be 17 as per Sarla
Varma (supra). Thus the claimants
would be entitled to Rs.4000+ Rs. 2800
(monthly) out of which as there are five
nimors and a widow 1/4th will have to be
deducted, hence, the family would be
entitled to Rs.5100 (Rs. 5000 round
figure) x 12x 17=Rs.1020000/ + 70,000/-
+50,000
(for
minor
children)
Rs.1,20,000/-
which
is
equal
to
Rs.11,40,000/-.
8 All. Smt. Madhubala Mishra & Anr. Vs. Shyam Dhar Dubey @ Dada & Ors.
397

18. In light of this, it is submitted
by Sri K.S. Amist that interest also
requires to be re-calculated as being
consistent in the old matter.

19. In view of decision of the Apex
Court in Civil Appeal No.242/243 of
2020 (National Insurance Company
Ltd. vs Birender and others) decided
on 13 January, 2020 which is the latest in
point of time, rate of interest should have
been 9 per cent from the date of filing of
claim petition before Tribunal till the
Judgment and 6 per cent thereafter till the
amount is deposited. The Insurance
Company shall recalculate the amount
and deposit the same before the Tribunal
as expeditiously as possible not later than
December,
2020.
Record
and
proceedings be sent back.

20. As more than twenty years have
elpased, by now, the minor children
would have become major. The amount
be disbursed in equal proportion to all
and no amount be kept in fixed deposit as
per the latest Judgment of Apex Court in
A.V. Padma and others Vs. R.
Venugopal and others, 2012 (3) SCC
378.

21. Both the appeals are partly
allowed.
----------
(2020)08ILR A397
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 410 of 2020

Smt. Madhubala Mishra & Anr. Petitiners
Versus
Shyam Dhar Dubey @ Dada & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Vivek Tiwari, Sri K.S. Tiwari

Counsel for the Respondents:
A.G.A.

A. Constitution of India, 1950-Article
226-Habeaus Corpus writ-In compliance
with the rule nisi issued to ascertain
whether detenue is staying with her
daughter of her free will or she is
illegally confined, a lady judicial officer
went over to the residence of the
detenue to record her statement-she
finds there is no illegal confinement of
dentenue, she is living there of her free
will-therefore, no good ground to make
the rule nisi absolute. The rule is
discharged.( Para 1 , 5)

B. Principle-Rule Nisi-it is well settled
as a result of several decisions that the
writ of habeas corpus is not granted as
of course as would an original writ for
initiating an action. it is issued only on
probable cause being shown by an
affidavit either of the person detained
or of some other person on his behalf.
The applicant for the writ must show
prima facie that there is sufficient
ground for his discharge the writ would
not issue and his application would be
summarily rejected. if no legal ground
was
made
to
appear
justifying
detention, the person detained would be
immediately discharged. On the other
hand,
the
application
would
be
dismissed if the detention was shown to
be justified. (Para 1 to 5)

The Petition is dismissed. (E-6)

(Delivered by Hon'ble J.J. Munir, J.)

1. In compliance with the rule nisi
issued by this Court vide order dated