# New India Assurance Co. Ltd., Kanpur v. Dr. Smt. Sunita Jain & Ors. 1042 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 4 ILRA 1041
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-05
- **Case number:** First Appeal From Order No. 1046 of 1992
- **Bench:** Dr. Kaushl Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-india-assurance-co-ltd-kanpur-v-dr-smt-sunita-jain-ors-1042-indian-law-48363
- **Pages:** 10

## Headnote

Civil Law - Motor Vehicles Act, 1939 -
Section 110A--Motor Vehicles Act, 1988-
-Sections
147
&
149-Compensationdeceased was a -Claim petition filed under
Section 110A of the Act of 1939- Deceased
met his death at the age of 49 years--He
could have served for a further period of 9
years--Adding 25% towards future prospects
and
deducting
1/3rd
towards
personal
expenses of the deceased -Applying multiplier
of 13- loss of dependency determined -
Further
amount
allowed
towards
nonpecuniary damages and ` towards medical -
Insurer to pay interest @ 6% from date of
filing of claim petition till award as the
claimants
have
remained
unrepresented
throughout.

Appeal
and
cross-objections
partly
allowed. (E-9)
List of Cases cited:

## Text

4 All. New India Assurance Co. Ltd., Kanpur Vs. Dr. Smt. Sunita Jain & Ors.
1041
today with interest at the rate of 7.5% from
the date of filing of the claim petition till
award and 6% thereafter till the amount is
deposited. The amount already deposited
be deducted from the amount to be
deposited. The insurance company would
be at liberty to recover 70% amount from
the co-tort-feasor, namely; bus whose
number is given in the record. The
deduction of 70% on the basis that the
driver and owner of the bus was not been
joined and that the deceased was negligent
to the tune of 5% and, therefore, only 25%
of the amount is payable is against the
principal enunciated in Khenyei (Supra).
Qua the appellant, it was a case of
composite
negligence
coupled
with
contrary negligence to the tune of 50% of
the deceased and, therefore, the amount
will have to be compensated by the
respondent and the insurance company is
given recovery rights from the other tort-
feasor.

18. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of
investment is not passed because applicants
/claimants are neither illiterate or rustic
villagers.

19. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguri 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.

20. Fresh Award be drawn accordingly
in the above petition by the tribunal as per the
modification made herein. The Tribunals in
the State shall follow the direction of this
Court as herein aforementioned as far as
disbursement is concerned, it should look into
the condition of the litigant and the pendency
of the matter and not blindly apply the
judgment of A.V. Padma (supra). The same
is to be applied looking to the facts of each
case.

21. Record be transmitted to the
Tribunal forthwith.
----------
(2022)04ILR A1041
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2022

BEFORE

THE HON'BLE DR. KAUSHL JAYENDRA
THAKER, J.

First Appeal From Order No. 1046 of 1992

New India Assurance Co. Ltd., Kanpur
 ...Appellant
Versus
Dr. Smt. Sunita Jain & Ors. ...Respondents
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Arun Kumar Shukla, Sri Vineet Saran, Sri A.B.
Saran

Counsel for the Respondents:
Sri Shashi Kant, Sri Rama Nand Gupta, Sri S.P.
Srivastava, Sri Vinod Sinha

Civil Law - Motor Vehicles Act, 1939 -
Section 110A--Motor Vehicles Act, 1988-
-Sections
147
&
149-Compensationdeceased was a -Claim petition filed under
Section 110A of the Act of 1939- Deceased
met his death at the age of 49 years--He
could have served for a further period of 9
years--Adding 25% towards future prospects
and
deducting
1/3rd
towards
personal
expenses of the deceased -Applying multiplier
of 13- loss of dependency determined -
Further
amount
allowed
towards
nonpecuniary damages and ` towards medical -
Insurer to pay interest @ 6% from date of
filing of claim petition till award as the
claimants
have
remained
unrepresented
throughout.

Appeal
and
cross-objections
partly
allowed. (E-9)
List of Cases cited:

1. Lakkamma & ors. Vs The Regional Manager,
United India Insurance Co. Ltd. & ors.
MANU/SC/0416/2021

2. United India Insurance Co. Ltd. Vs Gian
Chand & ors. MANU/SC/0953/1997

3. Pappu & ors. Vs Vinod Kumar Lamba & ors.
MANU/SC/0019/2018

4. National Insurance Company Limited Vs
Pranay Sethi & ors. MANU/SC/1366/2017

5. Meena Pawaia & ors. Vs Ashraf Ali & ors.
MANU/SC/1088/2021

6. Vimal Kanwar & ors. Vs Kishore Dan & ors.
MANU/SC/0460/2013
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Arun Kumar Shukla,
learned counsel for the appellant. None has
appeared for the respondents.

2. By way of this appeal, the New
India Assurance Co. Ltd., has challenged
the judgment and award dated 19.5.1992
passed
by
Motor
Accident
Claims
Tribunal/1st Additional District Judge,
Kanpur Nagar in Claim Petition No.125 of
1985 awarding sum of Rs.5,60,000/- as
compensation with 12% rate of interest.
The deceased was survived by widow, two
sons and mother. Cross objections came to
be filed belatedly and, therefore, though the
delay is condoned, it goes without saying
that while discussing grant of interest, this
aspect has to be considered as per judgment
of the Apex Court in Lakkamma and
Others Vs. The Regional Manager M/s
United India Insurance Co. Ltd., AIR
2021 SC 3301.

3. By way of this appeal, the
Insurance Company has challenged the
award and the formal order mainly on two
grounds namely that the vehicle was
unauthorizedly taken out of the garage and
driver had no driving license where it was
sent for repairs by the owner of the vehicle
and that the compensation awarded is on
the higher side.

4. Brief facts as culled out from the
record and the judgment of the Tribunal as
from 1992 though the appeal is pending,
record has not been summoned. The reason
being it is an admitted position of fact that
issue number 3 which has been decided by
the Tribunal is against the principle laid
down by the Apex Court way back in the
year 1997 in the case of United India
Insurance Co. Ltd. v. Gian Chand and
others, AIR 1997 SC 3824. Recent
judgment of Apex Court in Pappu and
4 All. New India Assurance Co. Ltd., Kanpur Vs. Dr. Smt. Sunita Jain & Ors.
1043
others v. Vinod Kumar Lamba and
another, 2018 (1) TAC 360.

5. The factual scenario as it emerges
is that the deceased met with the vehicular
accident because of the negligence of the
driver of the opposite vehicle. The issue of
negligence decided by the Tribunal is not in
dispute.

6. The Insurance Company has
challenged the judgment contending that
finding of the Tribunal is wrong and incorrect
as the statement of Ajay Malhotra could not
have been relied upon in as much as in fact
for
which
documentary
evidence
was
available but was not produced by the person
in whose possession vehicle was and his oral
statement cannot be relied upon regarding the
fact that driver had driving license.

7. The Insurance Company has raised
the ground that if the Ajay Malhotra had any
driving license for driver cum mechanic
Mahesh employed by him that should have
been produced before the Tribunal to prove
that fact and, therefore, the Insurance
Company had no way of laying its hands on
the aforesaid document.

8. It is also a ground that decision of the
Supreme Court which has been cited, there
was no element of driving involved and as
such that ruling is not applicable to the
present case. It has also been averred that the
owner having specifically stated that he did
not permit the garage owner to take out the
vehicle on road that means the vehicle was
being driven without the permission of the
owner and as such the owner as well as the
insurer cannot be held liable for the same.

9. It is next averred that the license
being in possession of the respondent,
Kanpur Tractors and their employee and
the same having not been produced, the
Tribunal should have drawn an adverse
inference against them and the Tribunal has
erred in law in holding that Mahesh,
respondent, was having a valid driving
license.

10. It is lastly averred that the amount
awarded is highly excessive inasmuch as
the income of the deceased was assessed at
Rs.6,000/- per month and since he would
have been spending a substantial amount
for
personal
expenses,
the
sum
of
Rs.5,60,000/- as award is highly excessive.

11. Neither the driver of the vehicle
nor the owner namely respondent No.6
filed any documentary evidence so as to
bring on record that the vehicle was driven
with knowledge of the original owner of
the vehicle whose name appeared in the
R.T.O records.

12. The judgment as far as issue no.3
is concerned, the onus is shifted on the
Insurance Company so as to prove that the
vehicle was being driven without license. It
was denied that the tempo was ever brought
to the garage by respondent No.6 rather the
owner did not even file the license of the
mechanic who had taken the vehicle
outside. The stand of respondent No.6 has
not been believed as the F.I.R., Chargesheet and written statement of the original
owner has been brought on record which
proves that he had given the vehicle to
respondent No.6 for repairs.

13. Sri R.K. Arora, who is the owner
of the tempo has categorically mentioned
that respondent No.7 was driving the tempo
which was given for repairs. The owner of
garage where Mahesh was employed is
respondent No.6. The Insurance Company
has categorically mentioned that there was
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
breach of policy condition. Section 147 and
149 of the Motor Vehicles Act, 1988 reads
as follows:

"147 Requirements of policies and
limits of liability. --

(1) In order to comply with the
requirements of this Chapter, a policy of
insurance must be a policy which--

(a) is issued by a person who is an
authorised insurer; and

(b) insures the person or classes of
persons specified in the policy to the extent
specified in sub-section (2)--

(i) against any liability which may be
incurred by him in respect of the death of
or bodily injury to any person, including
owner of the goods or his authorised
representative carried in the vehicle] or
damage to any property of a third party
caused by or arising out of the use of the
vehicle in a public place;

(ii) against the death of or bodily
injury to any passenger of a public service
vehicle caused by or arising out of the use
of the vehicle in a public place:

Provided that a policy shall not be
required--

(i) to cover liability in respect of the
death, arising out of and in the course of
his employment, of the employee of a
person insured by the policy or in respect
of bodily injury sustained by such an
employee arising out of and in the course
of his employment other than a liability
arising
under
the
Workmen's
Compensation Act, 1923 (8 of 1923) in
respect of the death of, or bodily injury to,
any such employee--

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle
engaged as conductor of the vehicle or in
examining tickets on the vehicle, or

(c) if it is a goods carriage, being
carried in the vehicle, or

(ii) to cover any contractual liability.

Explanation. --For the removal of
doubts, it is hereby declared that the death
of or bodily injury to any person or damage
to any property of a third party shall be
deemed to have been caused by or to have
arisen out of, the use of a vehicle in a
public place notwithstanding that the
person who is dead or injured or the
property which is damaged was not in a
public place at the time of the accident, if
the act or omission which led to the
accident occurred in a public place.

(2) Subject to the proviso to subsection (1), a policy of insurance referred
to in sub-section (1), shall cover any
liability incurred in respect of any accident,
up to the following limits, namely:--

(a) save as provided in clause (b), the
amount of liability incurred;

(b) in respect of damage to any
property of a third party, a limit of rupees
six thousand:

Provided that any policy of insurance
issued with any limited liability and in
force,
immediately
before
the
commencement of this Act, shall continue
to be effective for a period of four months
after such commencement or till the date of
expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for
the purposes of this Chapter unless and
until there is issued by the insurer in favour
of the person by whom the policy is effected
a certificate of insurance in the prescribed
form
and
containing
the
prescribed
particulars of any condition subject to
which the policy is issued and of any other
prescribed matters; and different forms,
particulars and matters may be prescribed
in different cases.

(4) Where a cover note issued by the
insurer under the provisions of this
Chapter or the rules made thereunder is
not followed by a policy of insurance within
4 All. New India Assurance Co. Ltd., Kanpur Vs. Dr. Smt. Sunita Jain & Ors.
1045
the prescribed time, the insurer shall,
within seven days of the expiry of the
period of the validity of the cover note,
notify the fact to the registering authority in
whose records the vehicle to which the
cover note relates has been registered or to
such
other
authority
as
the
State
Government may prescribe.

(5)
Notwithstanding
anything
contained in any law for the time being in
force, an insurer issuing a policy of
insurance under this section shall be liable
to indemnify the person or classes of
persons specified in the policy in respect of
any liability which the policy purports to
cover in the case of that person or those
classes of persons"

149. Duty of insurers to satisfy
judgments and awards against persons
insured in respect of third party risks.--

"(1) If, after a certificate of insurance
has been issued under sub-section (3) of
section 147 in favour of the person by
whom a policy has been effected, judgment
or award in respect of any such liability as
is required to be covered by a policy under
clause (b) of sub-section (l) of section 147
(being a liability covered by the terms of
the policy) 1[or under the provisions of
section 163A] is obtained against any
person insured by the policy, then,
notwithstanding that the insurer may be
entitled to avoid or cancel or may have
avoided or cancelled the policy, the insurer
shall, subject to the provisions of this
section, pay to the person entitled to the
benefit of the decree any sum not exceeding
the sum assured payable thereunder, as if
he were the judgment debtor, in respect of
the liability, together with any amount
payable in respect of costs and any sum
payable in respect of interest on that sum
by virtue of any enactment relating to
interest on judgments.

(2) No sum shall be payable by an
insurer under sub-section (1) in respect of
any judgment or award unless, before the
commencement of the proceedings in which
the judgment or award is given the insurer
had notice through the Court or, as the
case may be, the Claims Tribunal of the
bringing of the proceedings, or in respect
of such judgment or award so long as
execution is stayed thereon pending an
appeal; and an insurer to whom notice of
the bringing of any such proceedings is so
given shall be entitled to be made a party
thereto and to defend the action on any of
the following grounds, namely:--

(a) that there has been a breach of a
specified condition of the policy, being one
of the following conditions, namely:--

(i) a condition excluding the use of the
vehicle--

(a) for hire or reward, where the
vehicle is on the date of the contract of
insurance a vehicle not covered by a permit
to ply for hire or reward, or

(b) without side-car being attached
where the vehicle is a motor cycle; or

(ii) a condition excluding driving by a
named person or persons or by any person
who is not duly licensed, or by any person
who has been disqualified for holding or
obtaining a driving licence during the
period of disqualification; or

(iii) a condition excluding liability for
injury
caused or
contributed
to
by
conditions of war, civil war, riot or civil
commotion; or

(b) that the policy is void on the
ground that it was obtained by the non-
disclosure of a material fact or by a
representation of fact which was false in
some material particular.

(3) Where any such judgment as is
referred to in sub-section (1) is obtained
from a Court in a reciprocating country
and in the case of a foreign judgment is, by
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
virtue of the provisions of section 13 of the
Code of Civil Procedure, 1908 (5 of 1908)
conclusive as to any matter adjudicated
upon by it, the insurer (being an insurer
registered under the Insurance Act, 1938 (4
of 1938) and whether or not he is
registered under the corresponding law of
the reciprocating country) shall be liable to
the person entitled to the benefit of the
decree in the manner and to the extent
specified in sub-section (1), as if the
judgment were given by a Court in India:
Provided that no sum shall be payable by
the insurer in respect of any such judgment
unless, before the commencement of the
proceedings in which the judgment is given,
the insurer had notice through the Court
concerned
of
the
bringing
of
the
proceedings and the insurer to whom
notice is so given is entitled under the
corresponding law of the reciprocating
country, to be made a party to the
proceedings and to defend the action on
grounds similar to those specified in subsection (2).

(4) Where a certificate of insurance
has been issued under sub-section (3) of
section 147 to the person by whom a policy
has been effected, so much of the policy as
purports to restrict the insurance of the
persons insured thereby by reference to any
condition other than those in clause (b) of
sub-section (2) shall, as respects such
liabilities as are required to be covered by
a policy under clause (b) of sub-section (1)
of section 147, be of no effect: Provided
that any sum paid by the insurer in or
towards the discharge of any liability of
any person which is covered by the policy
by virtue only of this sub-section shall be
recoverable by the insurer from that
person.

(5) If the amount which an insurer
becomes liable under this section to pay in
respect of a liability incurred by a person
insured by a policy exceeds the amount for
which the insurer would apart from the
provisions of this section be liable under
the policy in respect of that liability, the
insurer shall be entitled to recover the
excess from that person.

(6) In this section the expression
"material fact" and "material particular"
means, respectively a fact or particular of
such a nature as to influence the judgment
of a prudent insurer in determining
whether he will take the risk and, if so, at
what premium and on what conditions, and
the expression "liability covered by the
terms of the policy" means a liability which
is covered by the policy or which would be
so covered but for the fact that the insurer
is entitled to avoid or cancel or has
avoided or cancelled the policy.

(7) No insurer to whom the notice referred
to in sub-section (2) or sub-section (3) has been
given shall be entitled to avoid his liability to
any person entitled to the benefit of any such
judgment or award as is referred to in subsection (1) or in such judgment as is referred to
in sub-section (3) otherwise than in the manner
provided for in sub-section (2) or in the
corresponding law of the reciprocating country,
as the case may be. Explanation.--For the
purposes of this section, "Claims Tribunal"
means a Claims Tribunal constituted under
section 165 and "award" means an award
made by that Tribunal under section 168" for
organised racing and speed testing, or

(c) for a purpose not allowed by the
permit under which the vehicle is used, where
the vehicle is a transport vehicle, or

(d) without side-car being attached
where the vehicle is a motor cycle; or

(ii) a condition excluding driving by a
named person or persons or by any person
who is not duly licensed, or by any person
who has been disqualified for holding or
obtaining a driving licence during the
period of disqualification; or
4 All. New India Assurance Co. Ltd., Kanpur Vs. Dr. Smt. Sunita Jain & Ors.
1047

(iii) a condition excluding liability for
injury
caused or
contributed
to
by
conditions of war, civil war, riot or civil
commotion; or

(b) that the policy is void on the
ground that it was obtained by the non-
disclosure of a material fact or by a
representation of fact which was false in
some material particular.

(3) Where any such judgment as is
referred to in sub-section (1) is obtained
from a Court in a reciprocating country
and in the case of a foreign judgment is, by
virtue of the provisions of section 13 of the
Code of Civil Procedure, 1908 (5 of 1908)
conclusive as to any matter adjudicated
upon by it, the insurer (being an insurer
registered under the Insurance Act, 1938 (4
of 1938) and whether or not he is
registered under the corresponding law of
the reciprocating country) shall be liable to
the person entitled to the benefit of the
decree in the manner and to the extent
specified in sub-section (1), as if the
judgment were given by a Court in India:
Provided that no sum shall be payable by
the insurer in respect of any such judgment
unless, before the commencement of the
proceedings in which the judgment is given,
the insurer had notice through the Court
concerned
of
the
bringing
of
the
proceedings and the insurer to whom
notice is so given is entitled under the
corresponding law of the reciprocating
country, to be made a party to the
proceedings and to defend the action on
grounds similar to those specified in subsection (2).

(4) Where a certificate of insurance
has been issued under sub-section (3) of
section 147 to the person by whom a policy
has been effected, so much of the policy as
purports to restrict the insurance of the
persons insured thereby by reference to any
condition other than those in clause (b) of
sub-section (2) shall, as respects such
liabilities as are required to be covered by
a policy under clause (b) of sub-section (1)
of section 147, be of no effect: Provided
that any sum paid by the insurer in or
towards the discharge of any liability of
any person which is covered by the policy
by virtue only of this sub-section shall be
recoverable by the insurer from that
person.

(5) If the amount which an insurer
becomes liable under this section to pay in
respect of a liability incurred by a person
insured by a policy exceeds the amount for
which the insurer would apart from the
provisions of this section be liable under
the policy in respect of that liability, the
insurer shall be entitled to recover the
excess from that person.

(6) In this section the expression
"material fact" and "material particular"
means, respectively a fact or particular of
such a nature as to influence the judgment
of a prudent insurer in determining
whether he will take the risk and, if so, at
what premium and on what conditions, and
the expression "liability covered by the
terms of the policy" means a liability which
is covered by the policy or which would be
so covered but for the fact that the insurer
is entitled to avoid or cancel or has
avoided or cancelled the policy.

(7) No insurer to whom the notice
referred to in sub-section (2) or sub-section
(3) has been given shall be entitled to avoid
his liability to any person entitled to the
benefit of any such judgment or award as is
referred to in sub-section (1) or in such
judgment as is referred to in sub-section (3)
otherwise than in the manner provided for
in sub-section (2) or in the corresponding
law of the reciprocating country, as the
case
may
be.
Explanation.--For
the
purposes of this section, "Claims Tribunal"
means a Claims Tribunal constituted under
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
section 165 and "award" means an award
made by that Tribunal under section 168"

14. The principle enunciated by the
learned Tribunal cannot be concurred by
the undersigned as the driving license was
not filed. Issue No.6 only states that
respondent No.6 conveys that the driver
had driving license but the same was not
filed which is an admitted position of fact
as it emerges from the finding of fact in
Issue No.6. The Tribunal casts burden on
the Insurance Company to prove that the
driver had no driving license. This could
not have been done in the absence of
driving license being produced.

15. Decisions in Gian Chand and
others (Supra) and Pappu & others
(Supra) will apply in full force.

16. By interim relief, the Insurance
Company was directed to deposit the entire
amount and, therefore, this Court directs
recovery of the amount from respondent
Nos. 6 & 7, the tort feasors and the person
where the vehicle was sent for repair. The
owner of the garage, respondent No.6
would be vicariously liable. However, in
view of the Division Bench Judgment in
FIRST APPEAL FROM ORDER No. -
3659 of 2018 (Smt. Vimla Devi And 4
Ors. v. United India Insurance Co. Ltd.
And 2 Ors) where the undersigned is also
signatory will apply to the facts of this case
also. The tort-feasors is the person who
drove the vehicle and the owner would be
vicariously liable to whom the vehicle was
pledged for/given for repairs by the original
owner and, therefore, the custody of the
vehicle would play a vital role. The original
owner had not authorized the drive to take
out the vehicle as is clear from the written
statement of the owner of the vehicle,
hence, the respondent No.6 would be liable
for the deeds of his driver. However, the
Insurance Company would prove the fact
that the owner was aware about the fact
that driver did not have driving license. In
our case, though ample opportunity is given
to the owner of garage, he or his driver has
not produced any license nor have they
appeared before this Court.

17. This takes this Court to the cross
objections filed by the claimants.

18. The fact that the deceased was
a doctor by profession in the year of
accident. The accident occurred when
the old Act was in vogue and the
litigation was filed under the Motor
Vehicles Act, 1939. The claimants had
claimed Rs.16,60,000/- by way of
compensation.
Both
the
Insurance
Company
and
the
claimants
have
challenged the award whereby the
Tribunal granted sum of Rs. 5,60,000/-.
The Tribunal has granted conditional
interest at the rate of 12% if the
Insurance Company did not deposit the
said amount within one month and and
directing that the interest to be paid
from the date of award. This has also
been challenged by claimants by filing
their cross objection. While going
through the decision and appended
documents,
it
transpires
that
the
deceased was doctor by profession and
on 22.5.1985 in the afternoon when he
was plying on a scooter and when he
was near Medical College, Kanpur, the
vehicle insured with the appellantInsurance Company came and dashed
with the said service and the deceased
died after three days due to the injuries.
This aspect and aspect of negligence
decided by the Tribunal is not in
dispute. The deceased was aged 49
years and could have served for a
4 All. New India Assurance Co. Ltd., Kanpur Vs. Dr. Smt. Sunita Jain & Ors.
1049
period of 9 years it is on this basis that
multiplier of 9 has been granted by the
Tribunal.

19. The Tribunal on a lump sum
basis considered that Rs.12,60,000/-
would be admissible and the claimants
had
demanded
Rs.16,45,000/-.
The
Tribunal
deducted
1/3rd
towards
personal expenses of the deceased and
recalculated the figure to Rs.8,40,000/-.
The Tribunal again deducted 1/3rd
which could not have been done. The
amount will have to be recalculated
even if we consider the income of the
deceased to be Rs.8,000/- per month, to
which 25% will have to be added as per
the judgment in National Insurance
Co. Ltd. Vs. Pranay Sethi and others,
2017 LawSuit (SC) 1093 1/3rd has to
be deducted and that is how calculation
would have to be made. The direction
that the amount would carry 12% rate
of interest if the amount is not paid
within on month, the said conditional
grant of interest could not have been
done even under the Act, 1939 and
therefore, the same is quashed. The rate
of interest even in the year 1992 could
not have been granted at 12%, to that
aspect,
the
appeal
of
Insurance
Company requires to be allowed. The
multiplier applied would be on the basis
of age of deceased and consideration of
multiplier on the basis of remainder of
service could not have been done in
light of the decision of National
Insurance Co. Ltd. Vs. Pranay Sethi
and others, 2017 LawSuit (SC) 1093
and Smt. Meena Pawaia & others Vs.
Ashraf
Ali
and
others
2021
0
Supreme (SC) 694, the multiplier
applicable would be 13. The Tribunal
has deducted the amount of pension
which could not have been deducted. in
view of decision in Vimal Kanwar and
Others Vs. Kishore Dan and others,
2013 (3) T.A.C. 6 (S.C.). I grant
Rs.20,000/- for medical expenses.

20. Hence, the total compensation
payable to the appellant is computed
herein below:

i. Monthly Income : Rs. 8,000/-

ii.
Percentage
towards
future
prospects : 25% of income : 2000

iii. Total income : Rs. 10000

iv. Income after deduction of 1/3rd
towards
personal
expenses
of
the
deceased : Rs.7,000 (rounded figure)

v. Annual Loss : 84,000/-

vi. Multiplier applicable : 13

vii.
Loss
of
dependency:
Rs.10,92,000/-

viii. Amount under non pecuniary
damages : 40,000/-

ix. Medical Expenses : 20,000/-

ix.
Total
compensation
:
11,52,000/-

21. In view of the above, this
appeal and the cross objections are
partly allowed. The judgment and
decree
shall
stand
modified.
The
amount be deposited by the Insurance
Company within 12 weeks from today
at 6% rate of interest as repo rate are
day in day out reducing and as the
matter has remained pending since 1992
for no fault of the Insurance Company,
the interest would be payable only for
the period from date of filing of the
claim
petition
till
award
as
the
claimants have remained unrepresented
throughout
except
filing
of
claim
petition.
The
counsel
for
the
respondent-claimants
has
remained
absented but as the Court on appeal has
decided all the issues and granted just
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation even in absence of the
counsel for the claimants, this order is
passed. Recovery rights are granted to
the appellant against respondent nos. 6
& 7.

22. As the record is not before this
Court, the Tribunal shall disburse the
amount.
----------
(2022)04ILR A1050
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2022

BEFORE

THE HON'BLE DR. KAUSHLENDRA
JAYENDRA THAKER, J.
THE HON'BLE VIVEK VARMA, J.

First Appeal From Order No. 3659 of 2018
& First Appeal From Order No. 2679 of 2015

Smt. Vimla Devi & Ors. ...Appellants
Versus
United India Insurance Co. Ltd. & Ors.
 ...Opp. Parties

Counsel for the Appellants:
Sri Akhilesh Chandra Srivastava, Sri Ramesh
Chandra Pathak, Sri Aditya Singh Parihar

Counsel for the Opp. Parties:
Sri Sushil Kumar Mehrotra, Sri Girish Kumar
Srivastava, Sri Neeraj Chandra Srivastava, Sri
Snehil Srivastava

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168, 173, 147 & 149--
Compensation--Determination of--Deceased &
ors. were returning home from Lucknow in a
car--Driver of car noticed that the vehicle
coming from opposite side can collide with the
car moved to his left when the car collided with
the railing of the road side culvert--All the
occupants
sustained
injuries--Deceased
succumbed to his injuries during treatment at
District Hospital--Claimants legal heirs of the
deceased filed claim petition--Tribunal awarded
a
sum
of
`
22,98,900--For
composite/contributory negligence deceased or
person concerned should be shown to have
contributed either to the accident or the impact
of the accident could have been minimised if he
had taken due care--Plea that driver was not
negligent rejected--It is a case of composite
negligence and the owner, driver and insurer
would be liable to pay the compensation--
Taking monthly income of ` 32,000 p.m. and
adding 20% towards future loss total income
worked out at ` 38,400--After deduction of
1/4th
towards
personal
expenses,
annual
income computed' at ` 3,45,600--Applying
multiplier of 11, the loss of dependency
determined at ` 38,01,600--Further amount of `
1,20,000 granted towards non-pecuniary heads
to determine total compensation at ` 39,21,600-
-Interest allowed @ 7.5% p.a. from date of
filing of the claim--TDS to be deductible.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Vimal Kanwar & ors. Vs Kishore Dan & ors.
MANU/SC/0460/2013;

2. Sarla Verma & ors. Vs Delhi Transport
Corporation & ors. MANU/SC/0606/2009;

3.
U.P.S.R.T.C.
Vs
Mamta
&
ors.
MANU/SC/0185/2016;

4.
Singh
Ram
Vs
Nirmala
&
ors.
MANU/SC/0200/2018;

5. Shamanna & ors. Vs The Divisional Manager,
The Oriental Insurance Co. Ltd. & ors.
MANU/SC/0828/2018;

6. Ram Chandra Singh Vs Rajaram & ors.
MANU/SC/0853/2018;

7. Rylands v Fletcher MANU/UKHL/0001/1868;

8. Khenyei Vs New India Assurance Co. Ltd. &
ors. MANU/SC/0582/2015;

9.
T.O.
Anthony
Vs
Karvarnan
&
ors.
MANU/SC/7181/2008;

10. New India Assurance Co. Ltd. Vs Urmila
Shukla
&
ors.
MANU/SC/0595/2021;