# Neelesh Kumar Agarwal & Ors v. Sanjay Kumar Agarwal & Ors

- **Citation:** (2021) 10 ILRA 243
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-17
- **Case number:** FAFO No. 906 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neelesh-kumar-agarwal-ors-v-sanjay-kumar-agarwal-ors-46256
- **Pages:** 8

## Headnote

Sri Amit Manohar, Sri Viqar Ahmed Ansari, Sri
S.D. Ohja

(A) Quantum of Compensation - Even
though in the year 1990 to 2000, the addition of
future prospects was not ruled out just because
tribunals in U.P. were not granting future losses.
(Para 10)

Appeal Partly Allowed. (E-10)

List of Cases cited:
244 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

10 All. Neelesh Kumar Agarwal & Ors. Vs. Sanjay Kumar Agarwal & Ors.
243

15. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguti P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, total
amount of interest, accrued on the
principal amount of compensation is to be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are
entitled
to deduct
appropriate
amount under the head of 'Tax Deducted
at Source' as provided u/s 194A (3) (ix) of
the Income Tax Act, 1961 and if the
amount of interest does not exceeds
Rs.50,000/- in any financial year, registry
of this Tribunal is directed to allow the
claimant to withdraw the amount without
producing
the
certificate
from
the
concerned Income- Tax Authority. The
aforesaid view has been reiterated by this
High Court in Review Application No.1 of
2020 in First Appeal From Order No.23 of
2001 (Smt. Sudesna and others Vs. Hari
Singh and another) while disbursing the
amount.

16. 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
respondent-Insurance
Company
shall
deposit the amount along with additional
amount within a period of 12 weeks from
today with interest at the rate of 9% from
the date of filing of the claim petition till
the amount is deposited and 6% thereafter
as the appeal remain pending for no fault
of either of the parties. The amount
already deposited be deducted from the
amount to be deposited.

17. As far as claimant Nos.2 and 3
are concerned, namely grand-father and
grand-mother have passed away and
hence, the amount be disbursed to the
daughter
(legal
representative
of
deceased) who by now must have attained
majority.

18. This Court is thankful to both
the counsels to see that the matter is
disposed of.

19. Record and proceedings be sent
back to the Tribunal after two weeks.
----------
(2021)10ILR A243
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 17.09.2021 &
07.10.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

FAFO No. 906 of 2008

Neelesh Kumar Agarwal & Ors.
 ...Appellants
Versus
Sanjay Kumar Agarwal & Ors.
 ...Respondents

Counsel for the Appellants:
Sri B. Dayal

Counsel for the Respondents:
Sri Amit Manohar, Sri Viqar Ahmed Ansari, Sri
S.D. Ohja

(A) Quantum of Compensation - Even
though in the year 1990 to 2000, the addition of
future prospects was not ruled out just because
tribunals in U.P. were not granting future losses.
(Para 10)

Appeal Partly Allowed. (E-10)

List of Cases cited:
244 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. First Appeal From Order
No. 1818 of 2012

2.
General
Manager,
Kerala
S.R.T.C.,
Trivandrum Vs Susamma Thomas & ors. (1994)
2 SCC 176

3. U.P. S.R.T.C. & ors. Vs Trilok Chandra & ors.
(1996) 4 SCC 362

4. Sarla Dixit Vs Balwant Yadav AIR 1996 SC
1274

5. Hardeo Kaur Vs Rajasthan State Transport
Corp. 1992 2 SCC 567

6. Puttamma Vs K.L. Narayana Reddy AIR 2014
SC 706

7. Raman Vs Uttar Haryana Bijli Vitran Nigam
Limited

8. Bijoy Kumar Dugar Vs Bidyadhar Dutta 2006
(3) SCC 242

9. R.K. Malik Vs Kiran Pal AIR 2009 SC 2506

10. National Insurance Co. Ltd. Vs Pranay Sethi
AIR 2017 SC 5157

11. Raj Rani Vs Oriental Isurance Co. Ltd. 2009
(13) SCC 654

12. Ritaben @ Vanitaben W/o Dipakbhai
Hariram & Anr. Vs Ahmedabad Municipal
Transport Service & anr. 1998 (2) G.L.H. 670

13. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors. LL 2021 SC 359

14. Munna lal Jain & anr. Vs Vipin Kumar
Sharma & ors. 2015 (6) SCALE 552

15. National Insurance Co. Ltd. Vs Mannat Johal
& ors. 2019 (2) T.A.C. 705 (S.C.)

16. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co. Ltd. 2007 (2) GLH 291

17. Tej Kumari Sharma Vs Chola Mandlam M. S.
General Insurance Co. Ltd. First Appeal From
First Order No. 2871 of 2016
18. Smt. Sudesna & ors. Vs Hari Singh & Anr.
Review Application No. 1 of 2020 in First Appeal
From Order No. 23 of 2001

19. A.V. Padma Vs Venugopal 2012 (1) GLH
(SC) 442

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Subhash Chand, J.)

1. Heard Sri B. Dayal, learned
counsel for appellants and Sri Amit
Manohar, learned counsel appearing for
insurance company.

2. The present appeal has been filed
challenging the judgment and award dated
15.12.2007 passed by Motor Accident
Claims
Tribunal,
Pilibhit
(hereinafter
referred to as 'Tribunal') in M.A.C.P. No.
52 of 2002.

3. This is claimants appeal and is
pending since 2008. The Tribunal has
considered all other aspects. There is no
controversy. The issue which we have to
decide are the issue of negligence and the
quantum of compensation awarded to the
claimant-appellants. While going through
the record, it is clear that the accident took
place on 28.02.2002 where the deceased
who was Bachelor and was running his
own business died. As far as the respondent
insurance company is concerned, they have
accepted the liability.

4. Having heard the learned counsel
for the parties, issue of negligence be
considered from the perspective of the law
laid down.

5. The term negligence means failure
to exercise care towards others which a
reasonable and prudent person would in a
10 All. Neelesh Kumar Agarwal & Ors. Vs. Sanjay Kumar Agarwal & Ors.
245
circumstance or taking action which such a
reasonable person would not. Negligence
can be both intentional or accidental which
is normally accidental. More particularly, it
connotes reckless driving and the injured
must always prove that the either side is
negligent. If the injury rather death is
caused by something owned or controlled
by the negligent party then he is directly
liable otherwise the principle of "res ipsa
loquitur" meaning thereby "the things
speak for itself" would apply.

6. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or
author of the accident would be liable for
his contribution to the accident having
taken place.

7. The Division Bench of this Court
in First Appeal From Order No. 1818
of 2012 ( Bajaj
Allianz General
Insurance Co.Ltd. Vs. Smt. Renu Singh
And Others) decided on 19.7.2016 has
held as under :

"16. 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
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
caused physical injury to person. The
degree of care required, of course,
depends upon facts in each case. On
these broad principles, the 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
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 to 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
246 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased was riding, was approaching
intersection.

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. These provisions (sec.110A
and sec.110B of Motor Act, 1988) are not
merely
procedural
provisions.
They
substantively affect the rights of the parties.
The right of action created by Fatal
Accidents Act, 1855 was 'new in its species,
new in its quality, new in its principles. In
every way it was new. The right given to
legal representatives under Act, 1988 to file
an application for compensation for death
due to a motor vehicle accident is an
enlarged one. This right cannot be hedged
in by limitations of an action under Fatal
Accidents Act, 1855. New situations and
new dangers require new strategies and
new remedies.

21. In the light of the above
discussion, we are 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, court
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 (per three-Judge Bench in
Jacob Mathew V/s. State of Punjab, 2005
0 ACJ(SC) 1840).

22. By the above process, the
burden of proof may ordinarily be cast 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 the
other side." emphasis added

8. While considering the evidence of
D.W.1, namely, the bus driver, the
principles of falsus in uno falsus in
omnius will apply in the facts of the
present case. The words falsus in uno
falsus in omnius meaning thereby false
one thing would be false in everything
should be applied to the facts of this case
also. His testimony is totally silent on the
way how the accident occurred as even in
his oral testimony, he has maintained that
his vehicle was not involved in the
accident. The deceased did on the spot. The
deceased was trying to overtake the horse
cart. The charge-sheet was led against the
bus driver and therefore, we hold the
deceased 25% negligent and not 50% as
has been held by the Tribunal.

9. The submission that the Tribunal has
not granted any amount towards future loss of
income. Grant of future prospects will have
to be traced back and reference can be had to
10 All. Neelesh Kumar Agarwal & Ors. Vs. Sanjay Kumar Agarwal & Ors.
247
the decision in General Manager, Kerala
S.R.T.C.,
Trivandrum
v.
Susamma
Thomas & Ors.,(1994) 2 SCC 176 wherein
addition of future prospects was also
calculated. The decision in Susamma
Thomas
(Supra)
was
referred
in
U.P.S.R.T.C. & Ors. v. Trilok Chandra &
Ors.(1996) 4 SCC 362 which have been
considered by the Apex Court in Sarla Dixit
Versus Balwant Yadav AIR 1996 SC 1274
and the Apex Court has considered decision
in Hardeo Kaur V/s. Rajasthan State
Transport Corporation, 1992 2 SCC 567.
The decision in Sarla Dixit has been
considered to be good law in (1) Puttamma
Vs. K.L.Narayana Reddy, AIR 2014 SC
706 (2) Raman Vs. Uttar Haryana Bijli
Vitran Nigam Limited, Bijoy Kumar
Dugar Vs. Bidyadhar Dutta, 2006 (3) SCC
242 : (3) Sarla Verma (supra)(4)R.K.Malik
Vs. Kiran Pal, AIR 2009 SC 2506 (5)
National Insurance Company Limited Vs.
Pranay Sethi, AIR 2017 SC 5157 Raj Rani
Vs. Oriental Insurance Company Limited,
2009 (13) SCC 654. We have gone through
the decisions in those days referred to herein
above and the judgment of Gujarat high court
in Ritaben alias Vanitaben W/o. Dipakbhai
Hariram and Anr. v/s. Ahmedabad
Municipal Transport Service & Anr., 1998
(2) G.L.H. 670, wherein, the Court has
observed as under:

"para-7: It is settled proposition of
that the main anxiety of the Tribunal in such
case should be to see that the heirs and legal
representatives of the deceased are placed, as
far as possible, in the same financial position,
as they would have been, had there been no
accident. It is therefore, an action based on
the doctrine of compensation.

para-8: It may also be mentioned
that perfect determination of compensation
in such tortuous liability is, hardly,
obtainable. However, the Tribunal is
required to take an overall view of the facts
and the relevant circumstances together
with the relevant proposition of law and is
obliged
to
award
an
amount
of
compensation which is just and reasonable
in the circumstances of the case.

para-10: Even in absence of any
other evidence an able bodied young man
of 25 years, otherwise also presumed to
earn an amount of Rs.1000/- or more per
month, on that basis the prospective income
could be calculated by doubling the one
prevalent on the date of the accident, which
is required be divided by half, so as to
reach the correct datum figure which is
required to be multiplied by appropriate
multiplier. Even taking a conservative view
in the matter, the deceased would be
earning not less than an amount of
Rs.1000/- per month and considering the
prospective average income of Rs.2000/-
and divided by half, would, obviously come
to Rs.1500/."

10. Thus even in the year 1990 to
2005, the addition of future prospects was
not ruled out, just because tribunals in Uttar
Pradesh were not granting future loss, it
cannot hold field where the decision of
Apex Court is otherwise as demonstrated
with decision though of persuasive value of
Gujarat High Court referred herein above
wherefore, the submission of Sri Amit
Manohar that no amount under the head of
future loss of income was admissible in
those days, will have to be considered. The
decision of the Apex Court in New India
Assurance Company Ltd. Vs. Urmila
Shukla and others, LL 2021 SC 359 will
have to be looked into. Therefore, we will
have to consider the same in the light of the
recent decisions as well as the decisions of
the Apex Court prevailing.
248 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In Malarvizhi & Others and
Indiro Devi & Others (Supra), it has been
held that Income Tax is the mirror of one's
income unless proved otherwise. In our
case, the returns as it reflects, proved
income of deceased to be Rs. 2,04,000/- per
annum. On what basis, the Tribunal has
disregarded
this
income
cannot
be
fathomed as a man's income would increase
unless proved otherwise. Even in the earlier
days, the factors to be considered for
issuing quantum of compensation reads as
follows:

12. While considering the evidence of
D.W.1, namely, the bus driver, the
principles of falsus in uno falsus in
omnius will apply in the facts of the
present case. The words falsus in uno
falsus in omnius meaning thereby false
one thing would be false in everything
should be applied to the facts of this case
also. His testimony is totally silent on the
way how the accident occurred as even in
his oral testimony, he has maintained that
his vehicle was not involved in the
accident. The deceased did on the spot. The
deceased was trying to overtake the horse
cart. The charge-sheet was led against the
bus driver and therefore, we hold the
deceased 25% negligent and not 50% as
has been held by the Tribunal.

13. Learned counsel for the appellants
has submitted that deceased was 26 years
of age and was a Bachelor. It is submitted
that the Tribunal has considered his income
to be Rs.1,20,000/- per annum which is
made and it should be at least Rs.
2,04,000/- per
annum.
It
is
further
submitted that the Tribunal has not added
any amount under the head of future loss of
income of the deceased which should be
25% of the income in view of the decision
in National Insurance Company Limited
Vs. Pranay Sethi and Others, 2017 0
Supreme (SC) 1050; that multiplier should
be applied on the basis of the age of the
deceased and not on the basis of age of the
parents and for that he has relied on the
decision of the Apex Court in Munna Lal
Jain & Anr. Vs. Vipin Kumar Sharma &
Ors. 2015 (6) SCALE 552 wherein it has
been held that multiplier should be on the
basis of the age of the deceased. It also
submitted that the interest and the amount
under the head of non pecuniary damages
are on the lower side and requires
enhancement.

14. After hearing the learned counsel
for the claimant-appellants and perusing the
judgment and order of the Tribunal, which
is under challenge before this Court, the
income
of
the
deceased
should
be
considered to be Rs.10,000/-. As per the
document 86-G the Tribunal could not go
on deducting the amount first at the rate of
20% towards personal expenses that is 1/3
of the amount but the Tribunal has
deducted 2/3 amount, which is highly
deplorable.
The
computation
of
the
compensation
would be
as
per
the
provisions of Section 166 of the Motor
Vehicle Act. From the record, it is clear
that the deceased was upshot his business
and he was earning Rs.6,923/- per month
and
then
his
income
would
be
Rs.2,43,280/- per annum. All these facts
have been ignored by the Tribunal while
considering the annual income of the
deceased which is bad in the eye of law.
Therefore, we hold that the deceased would
be earning Rs.1,20,000/- per annum, hence
his monthly income would be Rs.10,000/-
per month. The Tribunal has held the
deceased negligent to the tune of 40% but
as per our view it would be 25% and
deduction
towards
personal
expenses
would be 1/2 as he was Bachelor and
10 All. Neelesh Kumar Agarwal & Ors. Vs. Sanjay Kumar Agarwal & Ors.
249
multiplier would be 18 as the deceased died
at the age of 26 years, which falls under the
age bracket of (26-30). As far as the
interest is concerned, the Tribunal has
allowed the interest of 6%, which would be
7.5%.

15. The total compensation payable to
the claimants is computed herein below:

i. Annual Income Rs. 10,000/-

ii. Percentage towards future
prospects : 25% (2500)

iii. Total income : Rs.12,500/-

iv. Income after deduction of 1/2
=Rs.6,250/-

v. Annual income= Rs. 6,250 x
12 =75000/-

v. Multiplier applicable : 18

vi. Loss of dependency: Rs.75000
x 18 =13,50,000/-

vii. Amount under non-pecuniary
head : 70,000/-

viii.
Total
compensation
:
14,30,000/-

16. As far as issue of rate of interest is
concerned, it 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 by the respondent-Insurance
Company within a period of 12 weeks from
today with interest at the rate of 7.5%. The
amount already deposited be deducted from
the amount to be deposited.

DEDUCTIONS OF INCOME
TAX FROM THE COMPENSATION
AWARDED:

18. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291 and this
High Court, total amount of interest,
accrued on the principal amount of
compensation is to be apportioned on
financial year to financial year basis and if
the interest payable to claimants in their
proportion for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceed Rs.50,000/- in any
financial year, the deduction is not
permissible, registry of the Tribunal is
250 INDIAN LAW REPORTS ALLAHABAD SERIES
directed to allow the claimants to withdraw
the
amount,
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another) and
in First Appeal From Order No.2871 of
2016 (Tej Kumari Sharma v. Chola
Mandlam M.S. General Insurance Co.
Ltd.)
decided
on
19.3.2021
while
disbursing the amount.

DISBURSEMENT
BY
TRIBUNAL:

19. The claimants being major and
not an illiterate person the judgment of
A.V. Padma Vs. Venugopal, [2012(1)
GLH (SC), 442] will be followed by
Tribunal as 11 years have already elapsed
since the time of appeal and amount be
granted.

20. This Court is thankful to both the
counsels for getting this matter disposed of.

21. Let record of court below be sent
back to the Tribunal concerned.

Heard Shri S.D. Ojha on behalf of Shri
Amit Manohar, learned counsel for the
respondent.

This modification application is only
for clarifying that out of the total
compensation payable, 25% should be
deducted as the negligence of the deceased
himself.

Correction application is basically
modification application, hence this order
shall form part of the judgement dated
17.9.2021.
----------

(2021)10ILR A250
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 01.09.2021 &
22.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

FAFO No. 1066 of 2021

Smt. Sunita Pandey & Ors. ...Appellants
Versus
Bal Kishun & Anr. ...Respondents

Counsel for the Appellants:
Sri Ramesh Chandra Pathak

Counsel for the Respondents:
Sri Pradeep Kumar Sinha

(A) Quantum of Compensation - The total
compensation payable was calculated in view of
the decision of the Apex Court in National
Insurance Company Limited Vs Pranay Sethi.
(Para 9)

Appeal Partly Allowed. (E-10)

List of Cases cited:

1. National Insurance Company Limited Vs
Pranay Sethi and Ors. 2017 0 Supreme (SC)
1050 (followed)

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

3. Vimal Kanwar &ors. Vs Kishore Dan & ors.
AIR 2013 SC 3830

4. A. V. Padma Vs Venugopa 2012 (1) GLH (SC)
442

5. Smt. Hansaguti P. Ladhani Vs The Oriental
Insurance Co. Ltd. 2007 (2) GLH 291