# National Insurance Company Ltd., Agra v. Smt. Dropadi Devi & Ors

- **Citation:** (2019) 4 ILRA 980
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-18
- **Case number:** FAFO No. 1013 of 2016
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-company-ltd-agra-v-smt-dropadi-devi-ors-44973
- **Pages:** 5

## Headnote

A. Civil Law - Motor Vehicles Act (59 of
1988) - Sections 166 & 168 - Multiplier -
Deceased more than 50 years - Operative
multiplier is 11 for the age group of 51 to
55 years (Para 10)

B. Practice and Procedure - Appellant
cannot be permitted to say that the
principles laid down in Sarla Verma case
and Pranay Sethi case should be applied
to the extent it is beneficial to the
appellant and not where it is beneficial
to the respondents-claimants.

First Appeal from Order disposed Off. (E-5)

List of cases cited: -

## Text

980 INDIAN LAW REPORTS ALLAHABAD SERIES
readiness and willingness by reference to
Clause (c) of Section 16 of the Specific Relief
Act, 1963 is concerned, the pleadings are
there as they were and the question of
improving upon the pleadings does not arise
inasmuch as neither any of the parties made
a prayer for amendment in the pleadings nor
has the High Court allowed such a liberty. It
is true that a specific issue was not framed by
the trial court. Nevertheless, the parties and
the trial court were very much alive to the
issue whether Section 16(c) of the Specific
Relief Act was complied with or not and the
contentions advanced by the parties in this
regard were also adjudicated upon. The
High Court was to examine whether such
finding of the trial court was sustainable or
not-in law and on facts. Even otherwise the
question could have been gone into by the
High Court and a finding could have been
recorded on the available material inasmuch
as the High Court being the court of first
appeal, all the questions of fact and law
arising in the case were open before it for
consideration and decision."

22. Undisputedly, Section 107 of the
C.P.C. empowers the appellate court to
remand a case but it also empowers the
appellate court to take additional evidence
or to require such evidence to be taken.
Rule 24 of Order XLI of the C.P.C.
provides that where evidence on record is
sufficient,
the
appellate
court
may
determine the case finally. It is settled
principle of law that the first appellate
court has power to remand the case if the
trial court has disposed of a suit on a
preliminary
issue
without
recording
evidence and giving its decision on the
rest of the issues.

23. In the present case, the appellant
filed a suit for permanent injunction
restraining the respondents/ defendants
from
interfering
in
his
peaceful
possession, the respondents filed written
statement, issues were framed and both
the parties adduced their respective
evidence. It is not a case where the trial
court has disposed of the suit on the
preliminary issues without recording
evidence and giving its decision on the
rest of the issues. The Appellate Court
could have decided the appeal on the
basis of the material on record.

24. In the result, the appeal is
allowed, the impugned judgment and
decree dated 28th August, 2014 passed by
learned Additional District Judge, Sitapur
in Civil Appeal No.15 of 2013 are set
aside and the matter is remanded back to
the appellate court to decide the appeal on
merits and pass a fresh order after hearing
both the parties, in accordance with law.
The first appellate court is directed to
decide the appeal expeditiously and
preferably within a period three months.

25. Both the parties are directed to
appear before the learned District Judge,
Sitapur on 20th January, 2020 who will
hear the appeal himself or assign to some
other competent court for deciding the
same according to law.

26. Lower court record along with a
copy of this judgment be sent to the
Appellate Court immediately.
----------

(2019)12 ILR A980

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.
4 All. National Insurance Company Ltd. , Agra Vs. Smt. Dropadi Devi & Ors.
981
FAFO No. 1013 of 2016

National Insurance Company Ltd., Agra
 ...Appellant
Versus
Smt. Dropadi Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Sushil Kumar Mehrotra

Counsel for the Respondents:
Sri Ashutosh Kumar Pandey, Sri Digvijay
Singh

A. Civil Law - Motor Vehicles Act (59 of
1988) - Sections 166 & 168 - Multiplier -
Deceased more than 50 years - Operative
multiplier is 11 for the age group of 51 to
55 years (Para 10)

B. Practice and Procedure - Appellant
cannot be permitted to say that the
principles laid down in Sarla Verma case
and Pranay Sethi case should be applied
to the extent it is beneficial to the
appellant and not where it is beneficial
to the respondents-claimants.

First Appeal from Order disposed Off. (E-5)

List of cases cited: -

1. Sarla Verma Vs Delhi Transport Corporation
(2009) 6 SCC 121

2. National Insurance Company Vs Pranay
Sethi & others AIR 2017 SC 5157

(Delivered by Hon'ble Pradeep Kumar
Srivastava,J.)

1. Heard learned counsel for the
parties and perused the record.

2. This appeal has been filed against
the impugned judgment and award dated
01.12.2015, passed by Motor Accident
Claims Tribunal/Special Judge (D.A.A.),
Agra, in MACP No. 441/2014 (Smt.
Dropadi Devi and other vs. Yad Ram and
others) by which the learned Tribunal has
awarded
the
compensation
of
Rs.
27,85,495/- with 7% simple interest per
annum from the date of filing of the
appeal.

3. Aggrieved by the impugned
judgment this appeal has been filed on the
ground that rash and negligent driving of
the driver of the offending Maruti Van was
not established and the said Maruti Van was
not involved in the accident. The salary of
the deceased was not fixed and it was based
on the quantity of work, therefore, the
learned Tribunal has committed error in
taking the salary of the deceased to be on
monthly basis. The amount of average of
salary should have been taken into
consideration. The deceased was nearer to
retirement and the multiplier of 7 should
have been applied instead of applying the
multiplier of 9. The compensation amount
is in the higher side, hence, the award is
liable to be set aside.

4. Issues were framed by the learned
Tribunal and on the basis of evidence on
record,
the
learned
Tribunal
has
concluded that the driver of the offending
Maruti Van was rashly and negligently
driving the Van and he dashed the
motorcycle of the deceased, who died out
of injuries sustained by the said accident.
It was also found that the claimant PW-1
Smt. Dropadi Devi has supported the
allegations of the petition but she was not
an eye witness of the accident. PW-3 Ram
Babu has been examined as an eye
witness and he has proved that the driver
of the Maruti Van hit the motorcycle. He
was driving the Maruti Van very rashly
and
negligently
and
after
causing
accident, the driver escaped towards
Agra. The witness has also stated that in
982 INDIAN LAW REPORTS ALLAHABAD SERIES
the accident the total fault was of the
driver of the Maruti Van. He has also
identified the place where the accident
took place. He has further stated that the
deceased was driving the motor cycle at a
very slow speed. It has also been stated by
him that he had told the number of Maruti
Van to the police by which the said
accident was caused as he saw the the
whole incident.

5. The learned Tribunal has also
found that there was nothing on record on
the basis of which the statement of the
witnesses could be disbelieved. The
police papers such as first information
report, postmortem report, charge sheet
and site map prepared by the police have
also been filed in the evidence by which
the version of the petition was fully
corroborated. The learned Tribunal has
very adequately dealt with the argument
that the first information report was
lodged after six days from the date of
accident. I do not find any perversity or
illegality in the finding of the learned
Tribunal.

6. The learned Tribunal has also
found that the driver of the Maruti Van
was having legal and effective driving
license at the time of accident and the
Maruti Van was insured with the National
Insurance
Company.
Therefore,
the
learned Tribunal has rightly held that the
responsibility to pay compensation was
on the Insurance Company.

7. So far as the quantum of
compensation is concerned, PW-2 J.L.
Parindra has filed the salary certificate of
the deceased, which was also proved by
him. On the basis of that salary certificate,
the amount of compensation has been
determined by the learned Tribunal and I
find no illegality in it. The salary
certificate shows that after deduction, the
take home salary of the deceased was Rs.
28,235/- per month. Learned Tribunal has
also found that at the time of accident, the
age of the deceased was more than 50
years and, therefore, added 20% against
the future income of the deceased.

8. The submission of the learned
counsel for the appellant is that in view of
the judgment of the Supreme Court in
National
Insurance
Company
vs.
Pranay Sethi, AIR 2017 SC 5157, in the
age of 50 to 60 years, only 15% future
income is required to be added. 15% of
monthly income of Rs. 28.235/- comes to
Rs. 4,235/-, whereas, the learned Tribunal
has added Rs. 5,647/- against future
income. Therefore, the argument of the
learned counsel for the appellant is that
Rs. 28,235/- + Rs. 4,235/- makes the
monthly income Rs. 32,470/-, as such
multiplied by 12, the annual income will
come to Rs. 3,89,640/-and not Rs.
406584/- as assessed by the learned
Tribunal.

9. In view of the above argument, It
is therefore, should be seen that by
application of Pranay Sethi (supra), and
by giving benefit of the judgment to both
sides, the awarded amount is in higher
side or is just and reasonable. It appears
that learned Tribunal has applied the
multiplier in the lower side by which the
appellant should not be aggrieved as in
view of judgment in Sarla Verma v
Delhi Transport Corporation, (2009) 6
SCC 121, the available multiplier at the
age of 51 to 55 years should be 11. The
Supreme Court has laid down as below :-

"We therefore hold that the
multiplier to be used should be as
4 All. National Insurance Company Ltd. , Agra Vs. Smt. Dropadi Devi & Ors.
983
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 M-13 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."

10. The above law has further been
affirmed on the point of multiplier in
Pranay Sethi (supra). It is clear from the
above observation that between the age of
51 to 55, the available multiplier is 11, as
the learned Tribunal has determined the
age of the deceased to be more than 50
years, hence, the multiplier of 9 has been
used. It is again in the lower side as the
correct multiplier, in view of Sarla
Verma (supra), should have been 11 and
there is no force in the argument of the
appellant that a multiplier of 7 should
have been applied. Thus Rs. 406584 x 9 =
Rs. 3659256/-.

11. In view of the above, what is
interesting to note that in the annual
income as submitted by the learned
counsel to the appellant, if a multiplier of
11 will be applied, it will make the
amount Rs. 389640/- x 11 = 4286040.
The learned Tribunal has assessed the
annual income by adding 20% future
income to be Rs. 406684/- and if
multiplied by 9, it comes to Rs. 3659256/-
which is still less than the amount
calculated on the basis of adding 15%
future income multiplied by 11 which is
Rs. 4286040/-. The appellant cannot be
permitted to say that the principles laid
down in Sarla Verma (supra) and
Pranay Sethi (supra) should be applied
to the extent it is beneficial to the
appellant and not where it is beneficial to
the respondents-claimants. Thus, it clearly
establishes that by applying the above
referred law, the compensation amount
must have increased by more than two
lacs rupees. I find that there is no legal
base for the grievance raised in this
appeal and considered from all point of
view, the awarded amount is not required
to be disturbed.

12. 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 has observed as under :-

"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."

13. The learned Tribunal has
deducted 1/4 amount against the personal
expenses keeping in view that the
surviving members in the family of the
deceased were 5, therefore, the amount
RS. 3659256/- and 1/4th of it is Rs.
914814/- and after deducting same it
comes to Rs. 2744442/-. The learned
Tribunal has adequately added the amount
984 INDIAN LAW REPORTS ALLAHABAD SERIES
against the conventional head which is
Rs. 41,000/-, hence, the total amount
comes
 to Rs. 2785442/-.

13. In view of above, the total
amount of compensation to which the
claimants are entitled shall be Rs.
2785442/-. The learned Tribunal has
calculated it to be Rs. 2785496/- which is
54 rupees more and that appears to be
arithmetical mistake and the same is
corrected
accordingly
to
mean
Rs.
2785442/-

14. In view of above discussion, the
compensation
amount
is
corrected
accordingly and the appeal is finally
disposed of. Stay if any shall stand
vacated.

15. The office is directed to remit
the amount of Rs. 25000/- deposited at the
time of filing appeal to be adjusted
against the awarded amount.

16.

Office
is
directed
to
communicated the certified copy of this
order
to
the
court
concerned
for
information and necessary compliance.
----------
(2019)12 ILR A984

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.12.2019

BEFORE
THE HON'BLE RAJNISH KUMAR, J.

FAFO No. 1115 of 2010

Sunil Kumar ...Appellant
Versus
Mohd. Shadab & Ors. ...Respondents

Counsel for the Appellant:
Shakeel Ahmad Ansari, Rajendra Jaiswal

Counsel for the Respondents:
Alok Kumar Srivastava, B.Q. Siddiqui

A. Civil Law - Motor Vehicles Act (59 of
1988) - Sections 166, 168 & 173 -
Pleadings & proof - Degree of proof - in
accident claim cases the accident is to be
proved on the basis of preponderance of
probabilities & it need not be proved
beyond reasonable doubt like in a
criminal trial - approach of the Tribunal
should be to make a holistic analysis of
the entire pleadings and evidence, by
applying the principles of preponderance
of probabilities. (Para 13)

B. Civil Law - Motor Vehicles Act (59 of
1988) - Sections 166, 168 & 173 -
Pleadings & proof - Non-examination of
pillion rider - Effect - Not fatal when
sufficient evidence already on record

Held - Non-examination of the pillion rider not
fatal because approach in examining the
evidence in accident claim cases is not to find
out fault with non-examination of some "best"
eyewitness in the case but to analyse the
evidence already on record to ascertain
whether that is sufficient to answer the
matters in issue on the touchstone of
preponderance of probability (Para 19)

C. Motor Vehicle Accident - Site Plan -
Reliance - Site Plan could not have been
relied to discard the accident without its
being proved by the concerned police
officer who prepared the Site Plan or
other corroborative evidence (Para 20)

Tribunal dismissed Motor Accident Claim
petition on the ground of certain minor
discrepancies in the statements & FIR Held -
Evidence could not have been discarded on
the basis of minor discrepancies and the delay
in lodging the FIR and the Site Plan - Accident
not denied by the respondents - After
investigation charge-sheet filed against the
driver of the vehicle - Approach of tribunal
should be holistic analysis of the entire
pleadings and evidence by applying the