# New India Assurance Co. Ltd v. Smt. Laxmi Devi & Ors. Opp. Parties

- **Citation:** (2022) 4 ILRA 1076
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-11
- **Case number:** First Appeal From Order No. 2271 of 1991
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-india-assurance-co-ltd-v-smt-laxmi-devi-ors-opp-parties-48374
- **Pages:** 7

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168 & 173--CompensationDeceased
suffered
multiple
injuries
and
succumbed to them-Nothing in post mortem to
show that the deceased was under influence of
alcohol--There was collusion on right side of the
truck--Deceased contributed to the accident to
4 All. New India Assurance Co. Ltd. Vs. Smt. Laxmi Devi & Ors.
1077
the extent of 25%--Age of deceased was 39
years--Multiplier applicable would be 15-- sum
added thereto towards future prospects @ 40%-
Applying multiplier of 15- loss of dependency
determined - sum allowed towards nonpecuniary heads to determine the amount of
compensation at ` After deducting 25% towards
negligence
on
part
of
the
deceased,
compensation payable to claimants modified--
Interest allowed @ 7.5% p.a.

Appeals partly allowed. (E-9)

List of Cases cited:

## Text

1076 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation
under
the
Employee‟s
Compensation Act, 1923. The deceased
found himself at a spot where he was
assaulted and murdered only because of his
employment as the deceased was on duty of
his employer.

12. While going through the record, it
is very clear that this appeal will have to
fail and, accordingly, it is held that the
deceased died due to employment injuries.

13. Going by the factual scenario, the
deceased was in employment when the
incident occurred. The award dated 28th
July, 1991 goes on the premises. The
judgment of this Court in 2012 will also
enure for the benefit of the claimants.

14. This court unable to accept the
submission
of
learned
counsel
for
Insurance Company that the policy was
for private Car. It has not been proved
whether there is any breach of policy
decision
under
the
Workmen's
Compensation Act, 1923 even if it was
proved that the vehicle was being applied
for higher area remote. It is annexed that
the
accident
occurring
because
of
employment injury and, therefore, the
deceased driver had taken the Car at the
instance of the owner, no questions of
law was framed while admitting this
appeal rather there is no question of law
whether
the
murder
was
during
employment or not is a question of fact
which has been answered against the
Insurance Company.

15. In view of the above, the appeal
fails and is dismissed. The so called
questions of law framed by the Insurance
Company are answered against it. In fact
the substantial questions of law raised are
questions of fact.

16. Interim relief, if any, shall stand
vacated forthwith.

17. This court records the absence of
learned counsel for the respondents.

18. This Court is thankful to learned
counsel for the appellant for getting this
very old matter disposed off.

19. The record be transmitted to the
Workmen Commissioner.

20. The amount lying in the fixed
deposits will be disbursed to the claimants
immediately as more than 31 years has
elapsed since the appal was preferred.
----------
(2022)04ILR A1076
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

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

First Appeal From Order No. 2271 of 1991
With
First Appeal From Order No. 2288 of 2007

New India Assurance Co. Ltd. ...Appellant
Versus
Smt. Laxmi Devi & Ors. ...Opp. Parties

Counsel for the Appellant:
Sri Rakesh Bahadur

Counsel for the Opp. Parties:
Sri Nigmendra Shukla

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168 & 173--CompensationDeceased
suffered
multiple
injuries
and
succumbed to them-Nothing in post mortem to
show that the deceased was under influence of
alcohol--There was collusion on right side of the
truck--Deceased contributed to the accident to
4 All. New India Assurance Co. Ltd. Vs. Smt. Laxmi Devi & Ors.
1077
the extent of 25%--Age of deceased was 39
years--Multiplier applicable would be 15-- sum
added thereto towards future prospects @ 40%-
Applying multiplier of 15- loss of dependency
determined - sum allowed towards nonpecuniary heads to determine the amount of
compensation at ` After deducting 25% towards
negligence
on
part
of
the
deceased,
compensation payable to claimants modified--
Interest allowed @ 7.5% p.a.

Appeals partly allowed. (E-9)

List of Cases cited:

1. Mangal Singh Vs Rajasthan State Road
Transport Corp. & ors. MANU/RH/0364/2002

2.
Rylands
v
Fletcher
MANU/UKHL/0001/1868

3. Jacob Mathew Vs St.of Pun. & ors.
MANU/SC/0457/2005

4. Kaushnuma Begum & ors. Vs The New India
Assurance Co. Ltd. & ors. MANU/SC/0002/2001

5. Chhuttan Lal Batham Vs Shyam Lal & ors.
MANU/MP/1246/2005

6. Smt. Gaura Devi ors. Vs Shahzad Khan &
ors. MANU/UP/1894/2012

7. Sunita & ors. Vs Rajasthan State Road
Transport
Corporation
&
ors.
MANU/SC/0204/2019

8. National Insurance Co. Ltd. Vs Pranay Sethi &
ors. MANU/SC/1366/2017

9. National Insurance Co. Ltd. Vs Mannat Johal
& ors. MANU/SC/0589/2019

10. A.V. Padma & ors. Vs R. Venugopal & ors.
MANU/SC/0065/2012

11. Hansaguri Prafulchandra Ladhani & ors. Vs
The Oriental Insurance Company Ltd. & ors.
MANU/GJ/2100/2006
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Rakesh Bahadur, learned
counsel for-New India Assurance Co. Ltd.
and Sri Nigamendra Shukla, learned
counsel for claimants.

2. Both the New India Assurance Co.
Ltd. and claimants have challenged the
judgment and order dated 19.05.2007
passed
by
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.4, Bulandshahar (hereinafter referred to
as 'Tribunal') in Motor Accident Claim
Petition No. 283 of 2005, awarding
compensation of Rs.8,02,500/- with interest
at the rate of 9%.

3. The accident took place on
13.7.2005 when the deceased along with
Vinay Kumar and minor Anjali was going
on the scooter, at that point of time, the
truck suddenly gave the signal for turning
towards right side and that is how the
accident occurred in which, the deceased
sustained multiple fractures and minor
Anjali and Vinay Kumar also sustained
injuries. The F.I.R. was lodged at the police
station. The postmortem of the dead body
was conducted on 14.7.2005. The deceased
was a person of 39 years of age. The
respondent-owner of the vehicle contended
that the vehicle was not involved in the
accident. It was contended that the accident
occurred due to rash and negligent driving
of the scooterist. The Insurance Company
also file its reply which was one of denial
and contended that there was breach of
policy condition and that the vehicle was
not involved. The Tribunal after hearing
arguments and perusing the oral testimony
as well as documentary evidence, returned
the finding of negligence disbelieving the
oral testimony of D.W.1-Driver Qudir by
placing reliance on Mangal Singh Vs.
Rajasthan
State
Road
Transport
Corporation, Jaipur, 2002 (3) TAC 216
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
(Raj) and awarded a sum of Rs. 8,02,500/-
with interest at the rate of 9%. The Tribunal
has considered the income of the deceased
to be Rs.6,000/- per month, granted
multiplier of 16, deducted 1/3rd towards
personal expenses and granted loss of
consortium Rs. 5000/- each to claimant
nos. 2 to 6 for loss of fatherly affection and
Rs. 9500/- for other non pecuniary
damages.

4. The learned counsel for the
appellant-Insurance
Company
has
contended that the facts go to show that the
truck was involved in the accident and in
the alternative, the deceased was also
negligent as he was driving the vehicle
having two pillion riders and, lastly, it is
contended that the compensation awarded
is on the higher side.

5. As against this the counsel for the
claimants has contended that the F.I.R.,
Charge-sheet and testimonies of the witness
conclusively prove that the vehicle was
involved and the driver of the truck was the
sole author of the accident and that
compensation requires to be recapitulated
as amount under the head of future loss of
income has not been granted.

6. While dealing with submission on
issue of negligence raised by the learned
counsel for the appellant, it would be
relevant to discuss the principles for
deciding contributory negligence and for
that
the
principles
for
considering
negligence will also have to be looked into.

7. The term negligence means failure
to exercise care towards others which a
reasonable and prudent person would in a
circumstance or taking action which such a
reasonable person would not. Negligence
can be both intentional or accidental though
it 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.

8. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or is
co author of the accident would be liable
for his contribution to the accident having
taken place and that amount will be
deducted from the compensation payable to
him if he is injured and to legal
representatives if he dies in the accident.

9. 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
4 All. New India Assurance Co. Ltd. Vs. Smt. Laxmi Devi & Ors.
1079
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. Clause6 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 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
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
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

10. Learned counsel for the appellant
has relied on the decision in Kaushnuma
Begum
vs.
New
India
Assurance
Company Ltd., 2001 (2) SCC 9 and
Chhuttan Lal Batham vs. Shyam Lal and
others, 2005 (2) T.A.C. 753 (M.P.) and
Smt. Gaura Devi and others v. Shahzad
Khan and others, 2013 (1) TAC 606
(ALL).

11. The finding of fact that the driver
is an entrusted witness and cannot be relied
on is a finding which cannot be sustained.
No doubt driving with two pillion should
be the reason for causing the accident. In
our case, just because the deceased was
driving the vehicle with two pillions was
not in itself reason for the accident to take
place. Rather, it was a fatal accident. The
evidence of the driver of the truck goes to
show that the vehicle was involved in the
accident though there was a child of 13
years on the scooter, there is a collusion on
the right side of the truck and, therefore,
also the submission of the counsel for the
appellant has to be accepted. The F.I.R.
was given by the driver of the truck. The
truck became stationery. The postmortem
nowhere mentioned that the deceased was
under influence of alcohol. Hence, this
Court holds that the deceased has also
contributed to the accident having taken
place to the tune of 25%.

12. This takes this Court now to the
issue of compensation. I am unable to
subscribe to the submission of Sri Rakesh
Bahadur that as there was no document to
prove the income, the amount of Rs.6000/-
granted is on the higher side. The evidence
led proves that he was a skilled tailor and,
therefore, his potential to earn has also to
be considered and, therefore, I maintain the
income granted by the Tribunal on the basis
of recent judgment of the Apex Court in
Sunita and others Vs. Rajasthan State
Road
Transport
Corporation
and
Another, 2019 LawSuit (SC) 190. The
Tribunal has not granted any amount
towards future loss of income. The
deceased was below the age of 40 years
and was having his own business, hence,
40% of the income will have to be added in
view of the decision of the Apex Court in
National Insurance Company Limited
Vs. Pranay Sethi and Others, 2017 0
Supreme (SC) 1050. The multiplier is
recalculated as the deceased was 39 years
of age, hence, the multiplier would be 15.
The deduction towards personal expenses
of the deceased is just and proper, hence, is
not disturbed. As far as the amount under
the head of non-pecuniary damages is
concerned, it should be Rs.70,000/- + 10%
rise in every three years in view of the
decision in Pranay Sethi (Supra), hence,
the
claimants
would
be
entitled
to
Rs.1,00,000/- (rounded figure) under nonpecuniary heads.

13. Hence, the total compensation
payable to the appellants is computed
herein below:

i. Monthly Income Rs 6000
4 All. New India Assurance Co. Ltd. Vs. Smt. Laxmi Devi & Ors.
1081

ii. Percentage towards future prospects
: 40% namely Rs.2400/-

iii. Total income : Rs.6000 + 2400 =
Rs.8,400/-

iv. Income after deduction of 1/3rd :
Rs.5600/-

v. Annual income : 5600 x 12 =
67,200

vi. Multiplier applicable : 15

vii. Loss of dependency: Rs.67,200 x
15 = Rs.10,08,000/-

viii. Amount under non-pecuniary
head : 1,00,000/-

ix. Total compensation : 11,08,000/-

x. Compensation payable to claimants
after deductions of 25% negligence on the
part of the deceased : 11,08,000 - 2,77,000
= 8,31,000/-

14. From the record, it is seen that the
appellant has been ordered to deposit a sum
of
Rs.8,02,500/-
along
with
interest
accrued. The Tribunal had granted interest
at 9% which according to repo rate should
be 7.5% as per the reasoning given below.

15. 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."

16. In view of the above, both the
appeals are partly allowed. Judgment and
award passed by the Tribunal shall stand
modified to the aforesaid extent. The
Insurance Company would recalculate the
amount deposit the amount within a period
of 12 weeks from today with interest at the
rate of 7.5% from the date of filing of the
claim petition till the amount is deposited.
The amount already deposited be deducted
from the amount to be deposited.

17. 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.

18. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagauri 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
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

19. 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 judgment of A.V. Padma
(supra). The same is to be applied looking to
the facts of each case.

20. Record be sent back to the
Tribunal forthwith.
----------
(2022)04ILR A1082
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.04.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 4432 of 2019

Govind ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Bhola Singh Patel, Brij Mohan Sahai, Monika
Singh, Pawan Kumar Singh, Pravin Kumar
Verma

Counsel for the Respondents:
G.A., Sudhir Kumar Srivastava

A. Long detention in jail.-Mere long
detention in jail does not entitle an accused for
bail. It all depends upon the facts and
circumstances of the particular case.
Application rejected. (E-11)

List of Cases cited:-
Rajesh Ranjan Yadav Vs CBI through it's
Director (2007)1 SCC 70

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri B.M. Sahai, assisted by
Sri Pawan Kumar Singh, learned counsel
for the applicant, Sri Rajeev Kumar Verma,
learned AGA and Sri Sudhir Kumar
Srivastava,
learned
counsel
for
the
complainant.

2. Learned counsel for the applicant has
submitted that the present applicant is in jail
since 01.09.2017 in Case Crime No.410 of
2017, under Section 376 IPC and Sections
3/4 POCSO Act, Police Station Vikas Nagar,
District Lucknow. He has further submitted
that the present applicant has been falsely
implicated in the case as he has not
committed any offence as alleged. As per the
prosecution story so narrated in the FIR, the
present applicant has made oral sex with the
daughter of the complainant/ informant, who
is aged about eight years. As per the FIR,
when the daughter of the complainant was
vomiting after meal, the complainant asked
about the reason for vomiting, then she told
that the present applicant has made oral sex
with her.

3. Sri Sahai has submitted that the
entire prosecution story is false and
concocted inasmuch as the family of the
complainant was tenant of the present
applicant and when the present applicant
had told the complainant to vacate his
house, this false story was created.

4. Sri Sahai has drawn attention of
this Court towards Annexure No.RA-1 of