# National Insurance Company v. Bankey Bihari Lal & others

- **Citation:** (2007) 3 ILRA 688
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-13
- **Case number:** First Appeal From Order No. 1030 of 2000
- **Bench:** Amitava Lala, V.C. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-company-v-bankey-bihari-lal-others-41079
- **Pages:** 7

## Headnote

Sri Shekhar Srivastava,
Sri Ramendra Ashthana,
Sri M.K. Chandel
Sri Rajeev Chaddha
Sri Anand Srivastava

(A) Motor Vehicle Act 1988-Section-166
(2)-Territorial
jurisdiction
of
Courtaccident
took
place
at
Nepal-Truck
owner/Insurance
company
place
of
business
at
Gorakhpur-held-claim
Tribunal at Gorakhpur has jurisdiction.

Held: Para 4

On the basis of said sub-section either of
the places as aforesaid i.e. appropriate
place of accident at Nepal, appropriate
place of residence/carrying on business
of the claimants at Agra, Uttar Pradesh
or
appropriate
place
of
residence/carrying on business of the
respondents i.e. owner of the truck
and/or
Insurance
Company
at
Gorakhpur,
Uttar
Pradesh,
the
respondents under the claim petition,
are the appropriate places for hearing of
the claim petition. Since the claim
petition has been filed in the jurisdiction
of Gorakhpur, we hold that the Tribunal
at Gorakhpur had the jurisdiction to
entertain, try and determine the claim
petition of the claimants.
(B) Motor Vehicle Act, 1988-Section 166
(3)-Limitation
for
claim
petition
admittedly when accident took place
amended provision not in existenceperiod of 6 months or 12 months on
sufficient cause shown- No retrospective
application- held- even after 3 years can
be filed

Held: Para 7

Therefore, between the date of the
accident
and
the
date
of
filing
application, if the law repealed, the
effect will be made applicable to the
application as if the law was not existing
on that date. Hence, we hold and say
that the application is squarely covered
by the amended Act.

(C) Motor Vehicle Act. 1988 Section 163A- Multiplier- age of claimants as well as
of the deceased are material factor- the
age of deceased 22 years- and of the
claimants
55-
60
years-
held-
 8
multiplier- proper and just- Second
schedule applicable

Held: Para 8 & 9

Therefore, at the time of award in the
year 2000, their ages may not cross 60
years. Against this background multiplier
of 8 was applied taking into account the
ages of the parents roughly about 60
years alongwith the age of the deceased
as 22 years, having cumulative effect.

We find from the Second Schedule under
Section 163-A of the Act, 1988 that
multiplier of 8 will be applicable in the
case of the ages between 55-60 years
when multiplier of 5 will be applicable in
case of ages between 60-65 years and
above also. Therefore, we do not find any
ambiguity in applying multiplier of 8. We
also find that multiplier of 17 will be
applicable in case of age between 20-25
years.
Case law discussed:
AIR 1966 SC 2155, 1966(4) SCC 652, 1996(2)
TAC 324, 1994(2) SCC 176, 1996 ACJ 831,
2003(2) SCC 274
3 All] National Insurance Co. V. Bankey Bihari Lal and others
689

## Text

688 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.09.2007

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE V.C. MISRA, J.

First Appeal From Order No. 1030 of 2000

National Insurance Company ...Appellant
Versus
Bankey Bihari Lal & others ...Respondents

Counsel for the Appellant:
Sri V.K. Birla

Counsel for the Respondents:
Sri Shekhar Srivastava,
Sri Ramendra Ashthana,
Sri M.K. Chandel
Sri Rajeev Chaddha
Sri Anand Srivastava

(A) Motor Vehicle Act 1988-Section-166
(2)-Territorial
jurisdiction
of
Courtaccident
took
place
at
Nepal-Truck
owner/Insurance
company
place
of
business
at
Gorakhpur-held-claim
Tribunal at Gorakhpur has jurisdiction.

Held: Para 4

On the basis of said sub-section either of
the places as aforesaid i.e. appropriate
place of accident at Nepal, appropriate
place of residence/carrying on business
of the claimants at Agra, Uttar Pradesh
or
appropriate
place
of
residence/carrying on business of the
respondents i.e. owner of the truck
and/or
Insurance
Company
at
Gorakhpur,
Uttar
Pradesh,
the
respondents under the claim petition,
are the appropriate places for hearing of
the claim petition. Since the claim
petition has been filed in the jurisdiction
of Gorakhpur, we hold that the Tribunal
at Gorakhpur had the jurisdiction to
entertain, try and determine the claim
petition of the claimants.
(B) Motor Vehicle Act, 1988-Section 166
(3)-Limitation
for
claim
petition
admittedly when accident took place
amended provision not in existenceperiod of 6 months or 12 months on
sufficient cause shown- No retrospective
application- held- even after 3 years can
be filed

Held: Para 7

Therefore, between the date of the
accident
and
the
date
of
filing
application, if the law repealed, the
effect will be made applicable to the
application as if the law was not existing
on that date. Hence, we hold and say
that the application is squarely covered
by the amended Act.

(C) Motor Vehicle Act. 1988 Section 163A- Multiplier- age of claimants as well as
of the deceased are material factor- the
age of deceased 22 years- and of the
claimants
55-
60
years-
held-
 8
multiplier- proper and just- Second
schedule applicable

Held: Para 8 & 9

Therefore, at the time of award in the
year 2000, their ages may not cross 60
years. Against this background multiplier
of 8 was applied taking into account the
ages of the parents roughly about 60
years alongwith the age of the deceased
as 22 years, having cumulative effect.

We find from the Second Schedule under
Section 163-A of the Act, 1988 that
multiplier of 8 will be applicable in the
case of the ages between 55-60 years
when multiplier of 5 will be applicable in
case of ages between 60-65 years and
above also. Therefore, we do not find any
ambiguity in applying multiplier of 8. We
also find that multiplier of 17 will be
applicable in case of age between 20-25
years.
Case law discussed:
AIR 1966 SC 2155, 1966(4) SCC 652, 1996(2)
TAC 324, 1994(2) SCC 176, 1996 ACJ 831,
2003(2) SCC 274
3 All] National Insurance Co. V. Bankey Bihari Lal and others
689
(Delivered by Hon'ble Amitava Lala, J.)

1. This appeal has been preferred by
the appellant-Insurance Company against
a judgement and award passed by the
learned Judge, Motor Accidents Claims
Tribunal, Gorakhpur on 20th April, 2000,
under a claim petition filed under Section
166 of the Motor Vehicles Act, 1988
(hereinafter referred to as the 'Act', 1988).
Against the same judgment and award
cross objection no. 121257 of 2002 has
also been filed. Therefore, both are being
decided by this common judgment.

2. The deceased died in a road
accident at Nepal on 13th August, 1992.
He was unmarried at that time. He left
behind his parents and brother. A claim
petition was filed by his parents before
the Tribunal at Gorakhpur in 1995. The
claim petition became successful. A sum
of Rs.7,70,000/- was awarded by the
Tribunal in favour of the claimants.
Liability of the owner and Insurance
Company for payment of compensation
was made joint and several. Award of
interest was also allowed at the rate of
12% per annum from the date of
presentation of the claim petition till the
actual date of payment. The share of
compensation in favour of the claimants
i.e. father and mother was made equal.
Five issues were framed thereunder which
are as follows:

"1.
Whether
this
court
had
jurisdiction to try this claim petition for
the accident alleged to have taken place
within territory of Nepal in view of para-9
of the claim petition?
2. Whether the accident in question had
occurred on 13.8.92 near Narayn Ghat
Nepal due to rash and negligent driving of
Maruti Van No. DL-4CB-1679 by its
driver stated to be dead resulting into the
death of Ashish Bansal ? If so its effect?
3. Whether the claimants are entitled to
get any amount of compensation? If so
what is the reasonable amount of
compensation and who amongst the O.Ps.
are liable to pay ?
4. Whether
there
was
valid
and
effective insurance of this Maruti Van No.
DL-4CB-1679 on the date and time of
accident? If so its effect ?
5. Whether the driver of Maruti Van
No. DL-4CB- 1679 in question had valid
and effective driving licence on the date
and time of accident? If so its effect?"

3. Issue no.1 is related to the
question of jurisdiction. We have gone
through Section 166(2) of the Act, 1988
for considering such question which is as
follows:

"Every application under sub-section
(1) shall be made, at the option of the
claimant, either to the Claims Tribunal
having jurisdiction over the area in which
the accident occurred or to the Claims
Tribunal within the local limits of whose
jurisdiction the claimant resides or carries
on business or within the local limits of
whose jurisdiction the defendant resides,
and shall be in such form and contain
such particulars as may be prescribed."

4. On the basis of said sub-section
either of the places as aforesaid i.e.
appropriate place of accident at Nepal,
appropriate place of residence/carrying on
business of the claimants at Agra, Uttar
Pradesh
or
appropriate
place
of
residence/carrying on business of the
respondents i.e. owner of the truck and/or
Insurance Company at Gorakhpur, Uttar
Pradesh, the respondents under the claim
petition, are the appropriate places for
690 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
hearing of the claim petition. Since the
claim petition has been filed in the
jurisdiction of Gorakhpur, we hold that
the Tribunal at Gorakhpur had the
jurisdiction to entertain, try and determine
the claim petition of the claimants.

5. Secondly, in the memorandum of
appeal a specific point is taken by the
appellant that when the accident took
place, Section 166 of the Act, 1988 was
not amended, therefore, by virtue of
unamended Section 166(3) of the Act,
1988, no application could lie unless it is
made within a period of six months from
the date of occurrence of the accident.
However, the Tribunal may entertain the
application after the expiry of such period
but not later than twelve months, if it is
satisfied that the applicant was prevented
by sufficient cause from making the
application in time. In the instant case the
accident took place on 13th August, 1992.
The claim petition was filed in the year
1995. But prior to the date of filing of
such petition, sub-section (3) of Section
166 of the Act, 1988 was repealed with
effect
from
14th
November,
1994.
Therefore, the claimant can not get the
benefit of repealed provision which reads
as under:

"No
application
for
such
compensation shall be entertained unless
it is made within six months of the
occurrence of the accident:
Provided that the Claims Tribunal may
entertain the application after the expiry
of the said period of six months but not
later than twelve months, if it is satisfied
that the applicant was prevented by
sufficient
cause
from
making
the
application in time."

6. According to us, ratio of the
judgment reported in AIR 1996 SC 2155
= 1996 (4) SCC 652 = 1996 (2) TAC 324
(SC) (Dhannalal Vs. Vijayvargiya and
others) is pat on the point. Relevant
portion is quoted hereunder:

"7. In this background, now it has to
be examined as to what is the effect of
omission of sub-section (3) of Section 166
of the Act. From the Amending Act it
does not appear that the said sub- section
(3) has been deleted retrospectively. But
at the same time, there is nothing in the
Amending Act to show that benefit of
deletion of sub-section (3) of Section 166
is not be extended to pending claim
petitions where a plea of limitation has
been raised. The effect of deletion of subsection (3) from Section 166 of the Act
can be tested by an illustration. Suppose
an accident had taken place two years
before 14-11-1994, when sub-section (3)
was omitted from Section 166. For one
reason or the other no claim petition had
been filed by the victim or the heirs of the
victim till 14-11-1994. Can a claim
petition be not filed after 14-11-1994, in
respect of such accident? Whether a claim
petition filed after 14-11-1994 can be
rejected by the Tribunal on the ground of
limitation saying that the period of twelve
months which had been prescribed when
sub-section (3) of Section 166, was in
force having expired the right to prefer
the claim petition had been extinguished
and shall not be revived after deletion of
sub-section (3) of Section 166 w.e.f. 1411-1994? According to us, the answer
should be in negative. When subsection(3) of Section 166 has been
omitted, then the Tribunal has to
entertain a claim petition without
taking note of the date on which such
accident had taken place. The claim
3 All] National Insurance Co. V. Bankey Bihari Lal and others
691
petitions cannot be thrown out on the
ground that such claim petitions were
barred by time when sub-section (3) of
Section 166 was in force."

7. It is to be remembered that when
an enactment would prejudicially affect
vested
rights,
the
Rule
against
retrospective operation applies. Filing of a
claim petition by the claimant is the
vested right under the Motor Vehicles Act
i.e. a social piece of legislation. Intention
of the legislature is to liberalise the Act to
give more benefit to the claimants.
Therefore, such liberalised Act should not
be put as leaver to nullity vested right of
the claimant. Precisely the Act relates to
claim not relates to occurrence of
accident. Therefore, right accrues not on
the date of occurrence but on the date
when the lis commences. Therefore,
between the date of the accident and the
date of filing application, if the law
repealed,
the
effect
will
be
made
applicable to the application as if the law
was not existing on that date. Hence, we
hold and say that the application is
squarely covered by the amended Act.

8. Now the third question, as raised
by the appellant, is wrong application of
multiplier in calculating the appropriate
amount of compensation. We have gone
through
the
judgment
carefully.
According to us, the applicability of
multiplier has been thoroughly considered
by the Tribunal to arrive at just
compensation under Section 166 of the
Act, 1988. Deceased was survived by the
parents as he died unmarried at the age of
22 years. No denial or rebuttal on the part
of the Insurance Company is available in
respect of the age of the deceased.
Deceased was carrying on business with
his father and paying income tax. Parental
ages are not backed by any age
verification certificate. Brother of the
deceased deposed that the age of the
mother is 62-63 years or 64 years.
However, in the claim petition filed by the
father and mother of the deceased on 3rd
July, 1995, describing their ages as 53
years
and
50
years
respectively.
Therefore, at the time of award in the year
2000, their ages may not cross 60 years.
Against this background multiplier of 8
was applied taking into account the ages
of the parents roughly about 60 years
alongwith the age of the deceased as 22
years, having cumulative effect.

9. We find from the Second
Schedule under Section 163-A of the Act,
1988 that multiplier of 8 will be
applicable in the case of the ages between
55-60 years when multiplier of 5 will be
applicable in case of ages between 60-65
years and above also. Therefore, we do
not find any ambiguity in applying
multiplier of 8. We also find that
multiplier of 17 will be applicable in case
of age between 20-25 years. To justify the
cause, the Tribunal relied upon two very
important judgments reported in (1994) 2
SCC 176 (General Manager, Kerala
State Road Transport Corporation,
Trivandrum Vs. Susamma Thomas
(Mrs.) and others) and in 1996 ACJ 831
(U.P.State
Road
Transport
Corporation and others Vs. Trilok
Chandra and others). We have gone
through both the judgments. In both the
judgments the deceased was married.
However, the discussion is about the
applicability of multiplier method. In
paragraph 13 of the judgement in Re:
Susamma Thomas (Supra) the Supreme
Court held that the multiplier method
involves the ascertainment of the loss of
dependency or the multiplicand having
692 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
regard to the circumstances of the case
and capitalizing the multiplicand by an
appropriate multiplier. The choice of the
multiplier is determined by the age of the
deceased (or that of the claimants
whichever
is
higher)
and
by
the
calculation as to what capital sum, if
invested at a rate of interest appropriate to
a stable economy, would yield the
multiplicand by way of annual interest. In
ascertaining this, regard should also be
had to the fact that ultimately the capital
sum should also be consumed-up over the
period for which the dependency is
expected to last. Making reference to the
above judgment, three Judges' Bench of
the Supreme Court in Re: Trilok
Chandra (Supra) held that there should
be maximum multiplier upto 18 and not
16. However, it was also held that since
there
are
several
mistakes
in
multiplication in the aforesaid Second
Schedule, neither the Tribunals nor the
Courts can go by it as ready reckoner. It
can only be used as a guide. Besides, the
selection of multiplier can not in all
cases be solely dependent on the age of
the deceased. For example, if the
deceased a bachelor, dies at the age of 45
years and his dependents are his
parents, age of the parents would also
be relevant in the choice of multiplier.

10. Therefore, the argument as put
forth by appellant-Insurance Company
before this Court that in the case of death
of bachelor, only the age of the parents
will be considered is not a sound
submission. The word "also" as in the
aforesaid three Judges' judgment of the
Supreme Court denotes that both the ages
of the deceased and the parents even in
the case of bachelor ought to be taken into
account. Moreover, multiplier method as
under the Second Schedule of the Statute
which relates to the age of victim can not
be ignored by interpretation. Hence, the
calculation of the Tribunal to ascertain
compensation by adopting multiplier
method giving cumulative effect of both
the ages of the deceased and parents is not
at all wrongful application. Determination
has to be rational with judicious approach.
Therefore, the Court has weighed such
rationality on the basis of the available
materials to arrive at "just" compensation
and found justiciable.

11. We also find from the record
that the claimants have filed a cross
objection to the appeal on 21st July, 2002
i.e. after a period of two years from the
date of filing the appeal by the Insurance
Company contending mainly that the
application of multiplier in awarding
compensation should have been between
20-25 because while working out annual
dependency of the claimants, relevant
factor to be taken into consideration is age
of the dependants at the time of death in
accident. Moreover, total income of the
deceased at the time of accident and
enhancement of income from time to
time, future inflation and other factors in
carrying out business with his father are
to be taken into account by the Tribunal.
Although a point is involved herein about
recovery of certain amount by the
claimants
in
a
proceeding
under
Workmen's Compensation Act and such
point was taken by both the parties in
their respective statements but nobody
insisted for hearing on such point.
Therefore, we ignore the same only
keeping in mind such admitted factum
that the claimants have realised certain
amount of compensation apart from the
awarded amount hereunder.
3 All] National Insurance Co. V. Bankey Bihari Lal and others
693
12. The claimants, relying upon
three Judges' Bench judgment of the
Supreme Court reported in (2003) 2 SCC
274 (Nagappa Vs. Gurudayal Singh and
others) contended before this Court that
compensation to a victim of a motor
vehicle accident or in case of a fatal
accident to the legal representatives is
awarded under two heads, namely, special
damages--which are suffered by the
victim or the legal representatives and
general
damages--which
include
compensation for pain and sufferings, loss
of
amenities,
earning
capacity
and
prospective expenses including expenses
for medical treatment. With regard to the
first part of the damages, that is, special
damages suffered by the victim or the
legal representative, it can be easily
proved on the basis of the evidence which
is in possession of the claimant. However,
with regard to the second part--general
damages/compensation, it would be a
matter of conjectures depending on the
number
of
imponderables.
While
calculating
such
damages,
the
Tribunal/court is required to have some
guesswork
taking
into
account
the
inflation factor. Even if it is found later
that the damage suffered was much
greater than was originally supposed, no
further action could be brought. It is well
settled Rule of law that damages resulting
from one and the same cause of action
must be assessed and recovered once and
for all. Two actions, therefore, will lie
against the same party for personal injury
sustained in the same accident.

13.

However,
the
appellantInsurance Company objected to the crossobjection taking a plea that as per Order
41 Rule 22 of the Code of Civil Procedure
cross-objection can not be filed after a
period of two years of initiation of the
proceeding and notice upon it.

14. According to us, Motor
Accidents Claims Tribunal is not the
"Court" under Section 3 of the Code of
Civil Procedure but when a Judge of such
Court sits as a Judge of Tribunal he
follows the principles laid down under
such Code. For the said reason under
Section 195 of the Act, 1988 a provision
has been made. Above all, it is an
impractical approach to entertain a crossobjection only for enhancement of the
claim amount of the claimants after a
period of two years from the date of filing
the appeal when the same is not backed
by
any
cogent
reason
other
than
reiteration of facts. Even thereafter if we
go by the factual background, we find that
the
claimants
admittedly
were
compensated
even
before
the
compensation
was
granted
by
the
Tribunal. Hence, even without going into
the controversy of granting compensation
twice we can construe that the claimants'
intention is not encouragable.

15. Thus, in totality neither the
appeal nor the cross-objection succeeds.
Therefore, both are dismissed on contest
without imposing any cost.

Interim order, if any, stands vacated.

16.

However,
prayer
of
the
appellant- Insurance Company about
remittance of the statutory deposit of
Rs.25,000/- for the purpose of adjustment
with the claim of the claimants stands
allowed having incidental effect.
---------
694 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2007

BEFORE
THE HON'BLE R.C. DEEPAK, J.
THE HON'BLE VIJAY KUMAR VERMA, J.

Government Appeal No. 1874 of 2003

State of U.P.

...Appellant
Versus
Suraj Pal & others...Respondents-accused.

Counsel for the Appellant:
Sri Jagdish Tewari
Sri P.S. Pundir
A.G.A.

Counsel for the Opposite Parties:
Sri Manish Tiwari
Sri Ashwini Awasthi

Criminal Appeal-scope of interference by
the appellate Court-against acquittaloffence under Section 302 IPC-findings
recorded by Trail Court based on proper
appreciation of evidence-considering the
opinion of Doctor the injury caused by
Rifles,
Pistol
or
revolver-prosecution
story about commission of murder by
firing from cartridge gun-held-doubtfulconsidering recient view of Apex Court.
No Scope for interference made out.

Held: Para 18

Therefore, Keeping in view aforesaid
observations made by Hon'ble Apex
Court, there is no scope to make any
interference in the impugned judgment,
because as mentioned earlier also, the
findings of acquittal recorded by the
learned Trial Court which are based on
proper appreciation of the evidence, are
neither
perverse
nor
against
the
evidence.
Case law discussed:
2002 (10) SCC-461
2007 (57) ACC-959
(Delivered by Hon'ble Vijay Kumar Verma, J.)

1. This government appeal after
seeking leave of Court has been preferred
against the judgment and order dated
11.01.2000, passed by Sri B.L. Pandey,
the then Additional Sessions Judge/ Spl.
Judge (E.C. Act) Banda, in S.T. No. 236
of 1991 and connected S.T. No. 59 of
1992, whereby the respondents-accused
Suraj Pal, Nawal Kishore, Bakshraj and
Ram Kishore have been acquitted of the
offence punishable under section 302 read
with section 34 IPC in Case Crime No.
93/91 of Police Station Baberu, District
Banda.

2. The incident resulting in the death
of Sukhram Singh, brother of the
complainant Ghanshyam Singh Chauhan
is said to have occurred on 22.04.1991 at
about 5.45 p.m. in Kasba Baberu. First
information report was lodged by the
complainant Ghanshyam Singh Chauhan
S/o Indrajeet Singh, r/o Kasba and P.S.
Baberu, District Banda. The case of the
prosecution as per FIR (Ext. Ka 13), in
brief, is that on 22.04.1991 at about 5.45
p.m., when the complainant, his mother
Sunder Devi and his uncle Lal Singh were
sitting on the door of their house and his
elder
brother
Sukhram
Singh
was
standing near the shop adjacent to the
door of the house, the accused Ram
Kishore and Nawal Kishore both sons of
Shiv Balak armed with double and single
barrel guns respectively, Suraj Pal S/o
Laxmi Narayan armed with single barrel
gun (all residents of kasba Baberu) and
Bukshraj son of unknown r/o village
Banthari, P.S. Kamasin, District Banda,
armed with single barrel gun came there
and abusing and saying that you have got
the case registered against them, began to
fire from their weapons. Sukhram Singh