# National Insurance Co. Ltd v. Subhawati Devi & Ors. 290 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 1 ILRA 289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-22
- **Case number:** First Appeal From Order No. 1718 of 2011
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-v-subhawati-devi-ors-290-indian-law-reports-allahabad-45051
- **Pages:** 5

## Headnote

Act,
1988
-
Compensation - Calculation - On the basis
of salary of the deceased - Age of deceased
was found between 38 to 40 years - In
view of norms of application of multiplier
laid down in Sarla Verma's case, Tribunal
rightly applied multiplier of 15 - Held, no
perversity or illegality in the impugned
judgment and award. (Para 12, 13 & 16)

Held -

## Text

1 All. National Insurance Co. Ltd. Vs. Subhawati Devi & Ors.
289

15. After hearing the learned counsels for
the parties and perusing the judgment and
order impugned, this Court finds that the
income of the deceased Rs. 7,945/-per month
has been wrongly assessed by the Tribunal as
the Tribunal has deducted amounts which were
not supposed to be deducted from the salary of
the deceased namely the advantages which
were can not be deducted and as held by the
Hon. Supreme Court in the case of (2013) 7
SCC 476 Vimal Kanwar & Ors. Vs. Kishore
Dan & Ors. I am even fortified in my view by
the judgment of Apex Court reported in
National Insurance Company Limited VS.
Mannat Johal and another (Infra). The amount,
therefore, which would be entitled to the
family would to Rs. 12,000/- to which, as the
deceased was 54 years of age, 10% of the
income requires to be added in view of the
decision in National Insurance Company
Limited Vs. Pranay Sethi and Others, 2017
0 Supreme (SC) 1050. which would bring the
figure to Rs.1, 44, 000 + Rs.14,400
=Rs.1,58,400/-. Out of which 1/3th requires to
be deducted as personal expenses of the
deceased, hence after deduction of 1/3th means
Rs/ 52,800/- the amount available to the family
would be Rs.1, 05, 600/-. As the deceased was
in the age bracket of 51-55 years, the
applicable multiplier would be 11 in view of
the decision in Sarla Verma Vs. Delhi
Transport Corporation, (2009) 6 SCC 121.
In addition to that, Rs.70,000/- is granted
towards conventional heads as it is matter of
2004. Hence, the claimants are entitled to a
total sum of Rs. 1, 05, 600/- x 11) + 70,000
=Rs. 12, 31, 600/-.

16. As far as issue of rate of interest
is concerned, the interest 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."

17. 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
amount be deposited with interest at the
rate of 7.5% from the date of filing of the
claim petition till the amount is deposited.
The amount be deposited within a period
of 12 weeks from today. The amount
already deposited be deducted from the
amount to be deposited.

18. This Court is thankful to both the
counsels to get this very old matter
disposed of.

19. The cross objection is dismissed.
Record be send back to the tribunal forthwith.
----------
(2020)1ILR 289

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

First Appeal From Order No. 1718 of 2011

National Insurance Co. Ltd. ...Appellant
Versus
Subhawati Devi & Ors. ...Respondents
290 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Amit Manohar

Counsel for the Respondents:
Sri Shesh Narain Mishra

A.
Motor
Accident
Act,
1988
-
Compensation - Calculation - On the basis
of salary of the deceased - Age of deceased
was found between 38 to 40 years - In
view of norms of application of multiplier
laid down in Sarla Verma's case, Tribunal
rightly applied multiplier of 15 - Held, no
perversity or illegality in the impugned
judgment and award. (Para 12, 13 & 16)

Held -
15. In Sarla Verma (supra), it has been held by
the Supreme Court that a proceeding before
the Tribunal is in the nature of inquiry in which
a very few thing is required to be established.
The Court observed: "Basically only three facts
need to be established by the claimants for
assessing compensation in the case of death:
(a) age of the deceased; (b) income of the
deceased; and the (c) the number of
dependents. The issues to be determined by
the Tribunal to arrive at the loss of dependency
are (i) additions/deductions to be made for
arriving at the income; (ii) the deduction to be
made towards the personal living expenses of
the deceased; and (iii) the multiplier to be
applied with reference of the age of the
deceased.

First Appeal From Order dismissed. (E-1)
List of cases cited :-
1. Sarla Verma Vs. Delhi Transport Corporation
Ltd., AIR 2009 SC 3104
2. National Insurance Company Vs. Pranay
Sethi & others, AIR 2017 SC 5157
(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Shri Amit Manohar, learned
counsel for the appellant and Shri Shesh
Narain Mishra, learned counsel for the
opposite parties.

2. This appeal has been filed against
the judgement and award dated 18.02.2011
of Motor Accident Claims Tribunal
/Additional District Judge, Court no. 1,
Basti in MACP No. 105 of 2006 in which
the learned Tribunal has awarded Rs.
4,66,940/- as compensation along with 6%
simple interest per annum from the date of
institution of the claim petition.

3. The factual matrix of the case is
that an accident took place on 22.05.2006 at
10:30 PM, deceased Bhaagwat Prasad
Dubey with other employees of his
department was in the Jeep and was coming
after attending a marriage function to Basti.
In village Bankata near railway crossing
when the driver of the Jeep U.P.-51H/1300
driving the Jeep rashly and negligently tried
to overtake the tractor trolly, the right
portion of the Jeep dashed with trolly and
because of that the Jeep got uncontrolled
and overturned in a pit. The person in the
Jeep sustained injures and 4 of them died
on the spot including Shri Bhaagwat Prasad
Dubey. The Information was given by the
owner of the Jeep to shift his responsibility
on the tractor trolly stating the tractor trolly
is responsible for the accident and on the
basis of the written report, Crime No. 806 /
06 under sections 279, 337, 338, 304A IPC
was registered for the accident. The driver
of the Jeep was completely responsible who
was driving the Jeep very rashly and in a
very dangerous way resulting in accident.
At the time of accident deceased Bhaagwat
Prasad Dubey was 38 years in age and he
was Class-IV employee in Rajkiya Nalkoop
Vibhag and his monthly income was Rs.
6342/-. Therefore this claim petition was
filed by his wife and minor daughter and
sons.

4. The owner of the offending
vehicle filed written statement and denied
1 All. National Insurance Co. Ltd. Vs. Subhawati Devi & Ors.
291
that Bhaagwat Prasad Dubey was traveling
in the alleged offending Jeep. He has
admitted that deceased was Class-IV
employee in the Irrigation Department. He
has further stated that he had purchased
the Jeep and on the day of incident he had
gone to Shri Narsingh Pandey of his
department in a marriage function and he
was returning in the night by Jeep. Ahead
him, the Executive Engineer Shri Sohan
Ram was also going in a Jeep with certain
employees. The Jeep got trapped in the
tractor trolly and overturned on the road
side, therefore, certain persons sustained
injuries and some persons died. The leg of
the Executive Engineer was also broken.
The offending Jeep was departmental and
therefore, the Executive Engineer put
pressure on him for lodging the F.I.R. as
he was coming from his Jeep behind the
Jeep. He also sustained injuries and got
fainted and was admitted to District
Hospital. The Jeep was insured with
National Insurance Company and the
driver Hari Prakash Pandey was having a
valid license. If the Tribunal comes to a
conclusion that the accident took place by
his Jeep, the responsibility to pay
compensation is on the National Insurance
Company.

5. The National Insurance Company
also filed a written statement and it has
been alleged that in view of FIR, the
accident took place because of rashness
and negligence of by tractor trolly and
therefore, claim is not maintainable against
the Insurance company. The owner of the
tractor trolly has not been made party.
There is nothing against the driver of the
Jeep and on the basis of false allegation
the claim has been filed. The driver was
not having valid license and the Jeep was
being driven in violation of the Insurance
policy, the tractor trolly was not insured
and
was
driving
illegally.
The
responsibility to pay compensation is on
tractor owner and the claim petition is not
maintainable.

6. The learned tribunal framed four
issues, the English translation is as
follows:

1. Whether on 22.05.2006, at
night 10:30 p.m. near Bankata Railway
Crossing under P.S. Kotwali, District
Basti, Bhaagwat Prasad Dubey was
coming in Jeep No. U.P.-51H/1300 to
Basti, while crossing the railway crossing,
the driver of the Jeep, in order to overtake,
crossed
the
Jeep
very
rashly
and
negligently and right side of jeep dashed
with tractor trolly, Jeep got overturned in
a pit and Bhaagwat Prasad Dubey
sustained injuries and he died on the spot
and Whether accident occurred due to
only negligence of tractor driver or
accident occurred due to composite
negligence of Jeep driver and tractor
driver?

2. Whether at the time of
accident Jeep was validly and effectively
insured
with
opposite
party
no.
2
Insurance Company?

3. Whether on the date of
accident driver of the Jeep was having
valid and effective driving license?

4. Whether the claimants are
entitled for any relief, if yes, then how
much and from whom?

7. In support of the claim petition
PW-1 Smt. Subhawati Devi (claimant),
PW-2 Ram Pher, PW-3 Gulab Chandra
have been examined and the police papers
such as FR, F.I.R., site map, postmortem
report, insurance papers and driving
license have been filed. In addition to it,
the claimant has also filed the salary
292 INDIAN LAW REPORTS ALLAHABAD SERIES
certificate of the deceased. The defendant
side has not given any evidence. The
learned Tribunal, after hearing both the
sides and perusing the record, has
delivered the impugned judgment and
award.

8.

Feeling
aggrieved
by
the
impugned award, this appeal has been
filed on the ground that no FIR was lodged
against the said Jeep and its driver and the
report was lodged against tractor trolly and
the police submitted final report as the
tractor trolly was not traceable in absence
of its number. Other argument is in respect
of income and use of multiplier.

9. PW-1 Subhawati Devi is claimant
who has supported the allegations of
petition but she has admitted that she had
not seen the accident taking place. PW-3
Gulab Chandra is the eye witness of the
accident and he has narrated how the
accident took place and the driver of the
Jeep was driving the Jeep rashly and
negligently and by overtaking dashed the
tractor trolly going to the wrong side due
to which the accident took place. No
evidence for rebuttal was given from the
side of the defendants. The claim petition
further finds support by the police papers
as mentioned above.

10. The learned tribunal found on the
basis of the evidence on record that the
driver of the offending Jeep at the time of
accident was driving the Jeep very rashly
and negligently and the right portion of the
Jeep was dashed to the tractor trolly and
the Jeep got overturned and several
persons in the Jeep sustained injuries and
four persons died including the husband of
the claimant. So for as the fact that FIR
was lodged against tractor trolly against
which the police submitted final report, the
learned trial court found on evidence that
the eyewitness proved that the rashness and
negligence of the driver of the said Jeep was
established on the basis of eyewitness
account and moreover, the owner of the said
Jeep has admitted in his written statement
that under pressure he lodged FIR against
tractor trolly and at that time he was not in
healthy state of mind. No evidence in
rebuttal and to prove negligence of other
vehicle or composite negligence was given
by the side of appellant. Therefore, it was
rightly concluded by the learned tribunal that
the accident took place because of the rash
and negligent driving of the offending Jeep
and in the accident the husband of the
claimant sustained injuries and died.

11. So far as the insurance is
concerned the same has not been denied.
The driving license of the driver of the
offending Jeep was also found to be valid
on the date of accident. Therefore issue no.
2 and 3 were also decided in favour of the
claimant and against the defendant.

12. The amount of compensation has
been calculated on the basis of salary
which the deceased was earning at the
time of accident. P.W.-2 Ram Pher, senior
clerk of the department has been examined
who has proved the salary statement of the
deceased
and has
stated
that
after
deduction, the deceased was getting Rs.
3812/- monthly. On the basis of this
amount
the
compensation
has
been
calculated. The learned tribunal has found
the age of deceased to be between 38 to 40
years and he has applied a multiplier of 15.
The submission of the learned counsel to
the appellant is, in view of Sarla Verma
Vs. Delhi Transport Corporation Ltd.,
AIR 2009 SC 3104, in the age of 40 to 45
years instead of multiplier of 15, a
multiplier of 14 will be applicable.
1 All. United India Insurance Co. Ltd. Vs. Smt. Ramwati Devi & Ors.
293

13. In Sarla Verma (Supra) case
multiplier is from the age of 36 to 40 years
is 15. The Supreme Court has laid down as
below:

"We therefore hold that the
multiplier to be used should be as mentioned
in column (4) of the Table above (prepared by
applying Susamma Thomas, Trilok Chandra
and Charlie), which starts with an operative
multiplier of 18 (for the age groups of 15 to
20 and 21 to 25 years), reduced by one unit
for every five years, that is M-17 for 26 to 30
years, M-16 for 31 to 35 years, M-15 for 36
to 40 years, M-14 for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two
units for every five years, that is, M-11 for 51
to 55 years, M-9 for 56 to 60 years, M-7 for
61 to 65 years and M-5 for 66 to 70 years."

14. It is clear from the above
observation that in the age of 36 to 40 years,
the available multiplier is 15 and not 14, as
the learned Tribunal has determined the age
of the deceased to be between 38 to 40. The
has been further affirmed on the point of
multiplier system by the judgment in
National Insurance Company Vs. Pranay
Sethi & others, AIR 2017 SC 5157.
Therefore, the learned Tribunal has rightly
applied the multiplier in this instant case.

15. In Sarla Verma (supra), it has been
held by the Supreme Court that a proceeding
before the Tribunal is in the nature of inquiry
in which a very few thing is required to be
established. The Court observed:

"Basically only three facts need
to be established by the claimants for
assessing compensation in the case of
death: (a) age of the deceased; (b) income
of the deceased; and the (c) the number of
dependents. The issues to be determined
by the Tribunal to arrive at the loss of
dependency are (i) additions/deductions to
be made for arriving at the income; (ii) the
deduction to be made towards the personal
living expenses of the deceased; and (iii)
the multiplier to be applied with reference
of the age of the deceased."

16. In my view, the the learned
Tribunal has discussed all above aspects as
laid down in Sarla Verma (supra) and
has determined compensation on the basis
of the net salaried income of the deceased
by applying right multiplier. I do not find
any perversity or any illegality in the
impugned judgment and award.

17. In view of the above discussions,
I find no force in this appeal and the
appeal is liable to be dismissed.

18. The appeal is dismissed.

19. The office is directed to send a copy
of this judgment to the Court concerned for
information and necessary compliance.

20. Stay if any shall stand vacated.
Remit back the amount of Rs. 25000/-
deposited by the appellant to the learned
Tribunal to be adjusted against the
awarded compensation.
----------
(2020)1ILR 293

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2019

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

First Appeal From Order No. 2871 of 2005

United India Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Ramwati Devi & Ors. ...Respondents