# National Insurance Co. Ltd. Bulandsahar v. Smt. Pushpa Devi & Ors. Claimants

- **Citation:** (2014) 2 ILRA 960
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-25
- **Case number:** First Appeal from Order No. 2455 of 2014
- **Bench:** Rajes Kumar, Om Prakash-Vii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-bulandsahar-v-smt-pushpa-devi-ors-claimants-43053
- **Pages:** 4

## Headnote

Motor Vehicle Act 1988-Section 173-Appeal
against award Accident Claim Tribunal-on
ground of contributory negligence-HRA not
to be assessed as income of deceased-and
family pension should be deducted-heldfinding
recorded
by
Tribunal-perfectly
justified accident caused due to rash and
negligent driving of Tata Sumo-in view of
law laid down by Apex Court-HRA being
part and partial of salary-family pensionbeing right of the dependent of deceased
employee not be deducted-view taken by
tribunal-perfectly
justified-can
not
be
interfered-Appeal dismissed.

Held: Para-9
So far as submission of learned counsel for
the appellant that since after the death of
the deceased, legal representative of the
deceased
has
been
given
the
compassionate appointment and the wife is
getting the family pension, therefore, to
that extent, amount of compensation and
loss of dependency should be reduced, has
no substance.

Case Law discussed:
JT 2011(4), 232; (2013) 7 SCC 476; 1999(1)
SCC 90; First Appeal from Order No. 84 of
2 All]. National Insurance Co. Ltd. Bulandsahar Vs. Smt. Pushpa Devi & Ors.
961
1998; First Appeal From Order No. 2646 of

## Text

960 INDIAN LAW REPORTS ALLAHABAD SERIES
the same cannot be allowed to be
perpetuated.

10. Learned counsel for petitioner
failed to show that absorption of others
was consistent with the scheme of
statutory provisions and, therefore, was
made validly. It is well settled that if a
wrong has been committed by the
respondents in respect to some other
persons, that will not provide a cause of
action to claim parity on the ground of
equal treatment since the equality in law
under Article 14 is applicable for claiming
parity in respect to legal and authorized
acts. Two wrongs will not make one right.
The Apex Court in the case of State of
Bihar and others Vs. Kameshwar Prasad
Singh and another, AIR 2000 SC 2306;
Union of India and another Vs. International
Trading Co. and another, AIR 2003 SC
3983; Lalit Mohan Pandey Vs. Pooran
Singh and others, AIR 2004 SC 2303; M/s
Anand Buttons Ltd. etc. Vs. State of
Haryana and others, AIR 2005 SC 5565;
and Kastha Niwarak G. S. S. Maryadit,
Indore Vs. President, Indore Development
Authority, AIR 2006 SC 1142 has held that
Article 14 has no application in such cases.

11. Thus in the absence of any
statutory provision and also in view of the
admitted
factual
position
that
the
petitioner's initial recruitment was not in
accordance with the constitutional scheme
enshrined under Article 16 of the
Constitution,
the
relief
sought
by
petitioner cannot be granted.

12. Both the writ petitions lack merit
and are dismissed accordingly.

13. Interim order, if any, stands
vacated.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2014

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE OM PRAKASH-VII, J.

First Appeal from Order No. 2455 of 2014

National Insurance Co. Ltd. Bulandsahar
 ...Appellant
Versus
Smt. Pushpa Devi & Ors. ...Claimants

Counsel for the Petitioner:
Sri Saral Srivastava

Counsel for the Respondents:
Sri Dharmendra Kumar Gupta
Smt. Kiran Gupta

Motor Vehicle Act 1988-Section 173-Appeal
against award Accident Claim Tribunal-on
ground of contributory negligence-HRA not
to be assessed as income of deceased-and
family pension should be deducted-heldfinding
recorded
by
Tribunal-perfectly
justified accident caused due to rash and
negligent driving of Tata Sumo-in view of
law laid down by Apex Court-HRA being
part and partial of salary-family pensionbeing right of the dependent of deceased
employee not be deducted-view taken by
tribunal-perfectly
justified-can
not
be
interfered-Appeal dismissed.

Held: Para-9
So far as submission of learned counsel for
the appellant that since after the death of
the deceased, legal representative of the
deceased
has
been
given
the
compassionate appointment and the wife is
getting the family pension, therefore, to
that extent, amount of compensation and
loss of dependency should be reduced, has
no substance.

Case Law discussed:
JT 2011(4), 232; (2013) 7 SCC 476; 1999(1)
SCC 90; First Appeal from Order No. 84 of
2 All]. National Insurance Co. Ltd. Bulandsahar Vs. Smt. Pushpa Devi & Ors.
961
1998; First Appeal From Order No. 2646 of
2012.

(Delivered by Hon'ble Rajes Kumar, J.)

1. This is an appeal under Section
173 of the Motor Vehicles Act, 1988,
against the order of Tribunal dated
23.04.2014, by which Tribunal has
awarded a sum of Rs.26,55,088/- towards
compensation.

2. The appellant is the insurer of
Tata Sumo, bearing registration no.UP81-J-5163.

3. Brief facts stated in the impugned
order are that on 19.11.2009 at 6.15p.m.
when
the
deceased
was
going
to
Telephone Exchange, Makhaina, near
village Amarpur at Kibai-Anoopshahar
Road, near village Amarpur, said Tata
Sumo being driven rashly and negligently
hit the bhaisa-buggi. As a result of hitting
the bhaisa-buggi, Tata Sumo became
disbalance and hit the motor-cycle,
bearing registration no.UP-13-D-8026,
which was being driven by the deceased,
Pooran Singh and thereafter, again hit
one, Hariom, who was going on cycle,
causing grievous injuries to Pooran Singh,
who died on the spot. The claim petition
has been filed by the legal representative
of the deceased, Pooran Singh. At the
time of accident, deceased, Pooran Singh
was 43 years old and was working as
Telecom Mechanic in Bharat Sanchar
Nigam Limited. He was a permanent
employee and his age of superannuation
was 60 years. As per the income
certificate,
filed
by
the
claimants,
deceased Pooran Singh was getting the
basic pay Rs.13,800/-, DA Rs.3,491/-,
HRA Rs.1,380/- In this way, the deceased
was getting a sum of Rs.18,671/- per
month. Tribunal on the basis of evidence
on record and the statement of witness
arrived to the conclusion that the accident
has been caused solely on account of the
negligence of the driver of the Tata Sumo.
Tribunal on the basis of the salary
certificate has taken the monthly income
at Rs.18,670/- and after adding 25%
towards future prospect, in view of the
Uttar Pradesh Motor Vehicles (Eleventh
Amendment) Rules, 2011. Having regard
to the age of the deceased being 43 years
and
after
deducting
1/3rd
towards
personal expenses and applying the
multiplier
of
14,
estimated
the
compensation at Rs.26,55,088/-. Tribunal
under the aforesaid Rules, 2011 awarded
the
loss
of
estate
at
Rs.10,000/-,
consortium at Rs.10,000/- and towards
loss of love and affection at Rs.15,000/-
and funeral expenses at Rs.5,000/-.

4. Learned counsel for the appellant
submitted that there was head-on collision
between Tata Sumo and motor-cycle as is
apparent from the site plan, annexure-5 to the
affidavit, therefore, to some extent Tribunal
should have assessed some negligence on the
part of the deceased also, who was driving
the motor-cycle. Reliance has been placed on
the decision of the Apex Court in the case of
Bijoy Kumar Dugar Vs. Bidyadhar Dutta
and others, reported in 2006(1) TAC, 969.
He submitted that HRA should not be treated
as income and no deduction towards income
tax has been allowed. He further submitted
that on the death of the deceased, the
dependent have been given compassionate
appointment and the wife is getting family
pension. Therefore, the amount of family
pension is liable to be deducted and to that
extent there can not be loss of income.

5. We do not find substance in the
argument of learned counsel for the
962 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant. We have perused the impugned
order and site plan. It is not a case of head-on
collision. It is the case where Tata Sumo
firstly hit the bhaisa-buggi as a result of
which became disbalance and, thereafter, has
gone to its right side and hit the motor-cycle
being driven by the deceased, Pooran Sigh,
who was coming towards his left side. The
accident has been caused because Tata Sumo
became disbalance and the driver lost his
control over the vehicle. The velocity and the
speed of Tata Sumo appears to be very high
for the reasons that first of all it hit the
bhaisa-buggi, thereafter, the motor-cycle and
then to cyclist and further hit the tree. This
situation can only arise when the Tata Sumo
must have been running in very high speed
and after hitting the bhaisa-buggi the driver
of Tata Sumo was not able to control the
vehicle. In such a situation, it could not be
expected from the deceased, Pooran Singh
driver of the motor-cycle to pre-assess the
movement of the Tata Sumo, coming
towards right side and the deceased could not
get the opportunity to avoid the accident. It
appears
that
everything
happened
spontaneously and deceased could not get
opportunity to escape himself from the
accident. In the circumstances, on the facts
and circumstances, we are of the view that
Tribunal has rightly concluded that the
accident has been caused due to sole
negligence of the driver of the Tata Sumo
and there was no negligence on the part of
the deceased. The decision of the Apex
Court in the case of Bijoy Kumar Dugar
Vs. Bidyadhar Dutta and others, (Supra)
was based on its own facts where there
was a head-on collision and it was found
that Maruti Car should also made effort to
avoid the accident. Such situation is not
available in the present case. Therefore,
the decision of the Apex Court in the case
of Bijoy Kumar Dugar Vs. Bidyadhar
Dutta and others, (Supra) is not applicable
and is clearly distinguishable.

6. In the case of Sunil Sharma Vs.
Bachitar Singh, reported in JT 2011 (4),
232, Apex Court held that the amount of
HRA, CCA, EPF and GIS should not be
deducted from gross income for the
calculation of the income. Therefore, the
submission of learned counsel for the
appellant that HRA should be deducted,
has no substance.

7. Now coming to the submission that
the amount of income tax should be
deducted.

8. So far as legal position is concerned,
there is no dispute that the income tax ought
to have been deducted but in the present
case, there is no evidence that on the income
of the deceased, there was any income tax
liability. The appellant is not able to
demonstrate that any amount has been
deducted towards income tax or there was
any income tax liability. In the absence of
any evidence on record, we are not able to
accept the contention of learned counsel for
the appellant.

9. So far as submission of learned
counsel for the appellant that since after
the
death
of
the
deceased,
legal
representative of the deceased has been
given the compassionate appointment and
the wife is getting the family pension,
therefore, to that extent, amount of
compensation and loss of dependency
should be reduced, has no substance.

10. Apex Court in the case of Vimal
Kanwar and others, Vs. Kishore Dan and
others, reported in (2013) 7 SCC, 476,
Apex
Court
held
as
follows:
2 All]. Mohd. Anees Khan Vs. U.P. State Transport Corporation & Ors.
963

"The second issue is "whether the salary
receivable by the claimant on compassionate
appointment comes within the periphery of
the Motor Vehicles act to be termed as
'pecuniary advantage' liable for deduction".

"Compassionate appointment" can be
one of the conditions of service of an
employee, if a scheme to that effect is framed
by the employer. In case, the employee dies
in harness i.e. while in service leaving behind
the dependants, one of the dependants may
request for compassionate appointment to
maintain the family of the deceased
employee who dies in harness. This cannot
be stated to be an advantage receivable by
the heirs on account of one's death and have
no correlation with the amount receivable
under a statute occasioned on account of
accidental
death.
Compassionate
appointment may have nexus with the death
of an employee while in service but it is not
necessary that it should have a correlation
with the accidental death. An employee dies
in harness even in normal course, due to
illness and to maintain the family of the
deceased one of the dependants may be
entitled for compassionate appointment but
that cannot be termed as "pecuniary
advantage" that comes under the periphery of
the Motor Vehicles Act and any amount
received on such appointment is not liable
for
deduction
for
determination
of
compensation under the Motor Vehicles act.
"

11. In the case of Helen C.Rebello
Vs. Maharashtra, reported in S.R.T.C.,
1999 (1) SCC, 90, Apex Court has
observed that the family pension is also
earned by an employee for the benefit of
his family in the form of his contribution
in service in terms of the service
conditions receivable by the heirs after his
death. The heirs receive family pension
even otherwise than the accidental death.
There is no co-relation between the two.

12. Following the aforesaid decision,
the Division Bench of this Court in First
Appeal From Order No.84 of 1998, Sharad
Kumar Singh and Ors. Vs. Kanhaiya Lal
Mishra and Ors., decided on 24.08.2012 and
in First Appeal From Order No.2292 of
2012, United India Insurance Co. Ltd. Vs.
Smt. Rajni Kumari and others, decided on
30.05.2012 and in First Appeal From Order
No.2646 of 2012, The New India Assurance
Co. Ltd. Vs. Smt. Roop Tiwari and others,
decided on 06.07.2012 has held that the
family pension after the death of the
deceased is not liable to be deducted for the
computation of the income.

13. We do not find any merit in the
present
appeal,
which
requires
interference by this Court. The appeal
fails and is, accordingly, dismissed.

14. Office is directed to remit back
the statutory amount to the concerned
Tribunal within a period of four weeks.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.08.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Service Single No. 2753 of 2007

Mohd. Anees Khan ...Petitioner
Versus
U.P. State Transport Corporation & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri M.R. Siddiqui, Sri Satya Prakash, Sri
Som Nath, Sri Virendra Kumar Shukla.

Counsel for the Respondents: