# Ompal Singh Sharma & Ors v. National Insurance Company Ltd. & Ors

- **Citation:** (2022) 5 ILRA 291
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-20
- **Case number:** First Appeal From Order No. 311 of 2022
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ompal-singh-sharma-ors-v-national-insurance-company-ltd-ors-48514
- **Pages:** 10

## Headnote

A. Motor Accident Claim - Act of God or vis
major - Meaning - Rylands' rule -
Applicability - Coming of blue bull on the
road before a vehicle, Trubunal held it as
an Act of God - Validity challenged - Held,
only those acts, which can be traced to
natural forces and which have nothing to
do with the intervention of human agency,
can be said to be Acts of God - Act of God
or vis major are the forces which no
human foresight can provide most and of
which human prudence is not bound to
recognize the possibility - Held further, if
the driver of the vehicle would have taken
proper care and caution while plying the
vehicle at normal speed, the accident
could have been avoided because it is not
the case that the car hit the blue bull
directly but in order to save the blue bull,
it rammed into a tree and overturn in a
ditch - High Court applied Rylands' rule
and declared the finding of the Tribunal
holding the accident to be the result of 'No
292 INDIAN LAW REPORTS ALLAHABAD SERIES
Negligence' not sustainable in eye of law.
(Para 18, 20, 22 23 and 24)

B. Civil Law - Motor Accident Act, 1988 -
Section 169 - Claim - Documentary
evidence - Standard of proof - Salary
certificate of the deceased, duly issued by
the authority with official stamp was
produced - Tribunal disbelieved it only on
the basis that PW-1, the father of the
deceased did not deposed even a single
word in his testimony to prove it - Held,
Tribunal has lost site of the provision of
Section 169, under which it can summon
any
witness
to
prove
a
particular
document - Moreover, the standard of
proof in the motor accident claim petition
is not as strict as in civil or criminal law -
In order to award just compensation,
there is no requirement of law to prove
the
matter
or
document
beyond
reasonable
doubt
-
High
Court
recomputed compensation by determining
Rs. 9,870/- as the income of deceased and
adding 50% future loss and multiplier of
18 and awarded 7.5% interest. (Para 27,
28, 30, 33 and 35)

C. Civil Law - Income Tax Act, 1961 -
Section 194A (3) (ix) - Withdraw of
amount of interest - Certificate of Income
Tax authority, when required - Held, if the
interest payable to any claimant for any
financial
year
exceeds
Rs.
50,000/-,
insurance Co./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 - If the amount of interest
does not exceeds Rs. 50,000/- in any
financial year, registry of this Tribunal is
directed
to
allow
the
claimants
to
withdraw the amount without producing
the
certificate
from
the
concerned
Income- Tax Authority. (Para 38)
Appeal partly allowed (E-1)
List of Cases cited:-

## Text

5 All. Ompal Singh Sharma & Ors. Vs. National Insurance Company Ltd. & Ors.
291
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.

25. 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
7 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."

26. 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
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.

27. We are thankful to learned
counsels for the parties for ably assisted the
Court.

28. Record be sent back to court
below forthwith, if any.
----------
(2022)05ILR A291
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2022

BEFORE

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

First Appeal From Order No. 311 of 2022

Ompal Singh Sharma & Ors. ...Appellants
Versus
National Insurance Company Ltd. & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Dinesh Kumar Bhaskar

Counsel for the Resondents:
Sri Krishna Shanker Chaudhary

A. Motor Accident Claim - Act of God or vis
major - Meaning - Rylands' rule -
Applicability - Coming of blue bull on the
road before a vehicle, Trubunal held it as
an Act of God - Validity challenged - Held,
only those acts, which can be traced to
natural forces and which have nothing to
do with the intervention of human agency,
can be said to be Acts of God - Act of God
or vis major are the forces which no
human foresight can provide most and of
which human prudence is not bound to
recognize the possibility - Held further, if
the driver of the vehicle would have taken
proper care and caution while plying the
vehicle at normal speed, the accident
could have been avoided because it is not
the case that the car hit the blue bull
directly but in order to save the blue bull,
it rammed into a tree and overturn in a
ditch - High Court applied Rylands' rule
and declared the finding of the Tribunal
holding the accident to be the result of 'No
292 INDIAN LAW REPORTS ALLAHABAD SERIES
Negligence' not sustainable in eye of law.
(Para 18, 20, 22 23 and 24)

B. Civil Law - Motor Accident Act, 1988 -
Section 169 - Claim - Documentary
evidence - Standard of proof - Salary
certificate of the deceased, duly issued by
the authority with official stamp was
produced - Tribunal disbelieved it only on
the basis that PW-1, the father of the
deceased did not deposed even a single
word in his testimony to prove it - Held,
Tribunal has lost site of the provision of
Section 169, under which it can summon
any
witness
to
prove
a
particular
document - Moreover, the standard of
proof in the motor accident claim petition
is not as strict as in civil or criminal law -
In order to award just compensation,
there is no requirement of law to prove
the
matter
or
document
beyond
reasonable
doubt
-
High
Court
recomputed compensation by determining
Rs. 9,870/- as the income of deceased and
adding 50% future loss and multiplier of
18 and awarded 7.5% interest. (Para 27,
28, 30, 33 and 35)

C. Civil Law - Income Tax Act, 1961 -
Section 194A (3) (ix) - Withdraw of
amount of interest - Certificate of Income
Tax authority, when required - Held, if the
interest payable to any claimant for any
financial
year
exceeds
Rs.
50,000/-,
insurance Co./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 - If the amount of interest
does not exceeds Rs. 50,000/- in any
financial year, registry of this Tribunal is
directed
to
allow
the
claimants
to
withdraw the amount without producing
the
certificate
from
the
concerned
Income- Tax Authority. (Para 38)
Appeal partly allowed (E-1)
List of Cases cited:-
1. Anita Sharma Vs New India Assurance Co.
Ltd.; (2021) 1 SCC 171
2. Parmeshwari Vs Amir Chand; (2011) 11 SCC
635
3. C.MA. No. 1482 of 2017; Reliance General
Insurance Co. Ltd. Vs Subbulakshmi & ors.
4. Puspabai Purshottam Udeshi Vs Ranjit
Ginning and Pressing Co.; 1977ACJ 343
(SC)
5. Bimla Devi & ors. Vs Himachal RTC; 2009
(13) SCC 530
6. Nugent Vs Smith; (1876-1 CPD 423)
7. Rylands Vs Fletcher; 1868 Law Reports (3)
HL 330,
8. Bithika Mazumdar & anr. Vs Sagar Pal &
ors. (2017) 2 SCC 748
9. F.A.F.O. No. 1999 of 2007; Oriental
Insurance Co. Ltd. Vs Smt. Ummida Begum
& ors.
10. F.A.F.O. No. 1404 of 1999; Smt. Ragini
Devi & ors. Vs United India Insurance Co.
Ltd. & anr. decided on 17.04.2019
11. National Insurance Co. Vs Pranay Sethi;
2014 (4) TAC 637 (SC)
12. Smt.Sarla Verma Vs Delhi Transport
Corp.; 2009 (2) TAC 677 (SC)
13. Munna Lal Jain & Anr. Vs Vipin Kumar
Sharma & ors.; 2015 (6) SCALE 552
14. National Insurance Co. Ltd. Vs Mannat
Johal & ors. 2019 (2) T.A.C. 705 (S.C.)
15. Smt. Hansagori P. Ladhani Vs The
Oriental Insurance Co. Ltd.; 2007(2) GLH
291
16. Review Application No. 1 of 2020 in First
Appeal From Order No. 23 of 2001; Smt.
Sudesna & ors. Vs Hari Singh & anr.
17. First Appeal From Order No. 2871 of
2016; Tej Kumari Sharma Vs Chola Mandlam
M.S. General Insurance Co. Ltd. decided on
19.3.2021
18. Bajaj Allianz General Insurance Co. Pvt.
Ltd. Vs Union of India & ors. decided by
Apex Court on 27.01.2022
(Delivered by Hon'ble Ajai Tyagi, J.)
5 All. Ompal Singh Sharma & Ors. Vs. National Insurance Company Ltd. & Ors.
293

1. This appeal has been preferred by
the
claimants-appellants
against
the
judgment & award dated 30.9.2013 passed
by
learned
Motor
Accident
Claims
Tribunal/ District Judge, District Bijnor in
Motor Accident Claim Petition No.43 of
2012 (Ompal Singh Sharma and others Vs
National Insurance Company Ltd. and
others ), whereby the learned Tribunal has
denied the compensation for the death of
Prince Sharma in a road accident, holding
the accident to be the result of ''Act of God',
and awarded Rs.50,000/- under no fault
liability under Section 140 of Motor
Vehicles Act, 1988 ( hereinafter referred to
as 'Act, 1988').

2. The claimants-appellants have
preferred this appeal for grant of quantum
of compensation under Section 166 of Act,
1988.

3. The brief facts of the case are that
claimants-appellants filed a Motor Accident
Claim Petition before the Tribunal for
seeking
compensation
under
Motor
Vehicles Act, 1988 for the death of Prince
Sharma (deceased) who lost his life in a
road accident. As per averments made in
claim petition, on 30.7.2011, the deceased -
Prince Sharma was traveling in a Wagon-R
Car No. U.P.-21 S-1101 with Mohd. Arif
Jameel, Assistant Excise Commissioner,
Bijnor, after performing their duties from
Bijnor to Moradabad. The car was driven
by driver- Jameel Ahmad- respondent no. 3.
At about 2:30 p.m., when the car reached a
little ahead of Gol Bag Tiraha within the
jurisdiction of Police Station, Haldaur,
suddenly a wild animal Maha ( Blue bull /
Neelgay), came in front of car, the driver of
Car had lost his control over the Car and
dashed against the tree and fell down in a
ditch. In this accident, Prince Sharma and
Mohd. Jameel Ahmad sustained serious
injuries and Prince Sharma ( deceased) died
on the spot.

4. It is also averred that the age of the
deceased was 23 years and he was posted
as constable in Excise Department, Bijnor
was receiving salary of Rs.12,000/- per
month.

5. Aggrieved mainly with the non
grant of compensation under Section 166 of
Motor Vehicles Act awarded, the appellants
have preferred this appeal.

6. Heard learned counsel for the
appellants-claimants and learned counsel
for the respondents. Perused the record.

7. Learned counsel for the appellantsclaimants has submitted that impugned
judgment and award is against the law.
Learned Tribunal has held that the driver of
the car was not negligent but this finding is
erroneous because if the vehicle would
have been driven with proper care and
caution, the accident could have been
avoided. Learned Tribunal has adopted
incorrect approach, because the vehicle was
not being driven at a normal speed. In fact,
the driver lost the control on staring and the
vehicle dashed into the tree.

8. Per contra, learned counsel for the
Insurance
Company
has
vehemently
objected the submissions of learned counsel
for the appellants-claimants and submitted
that it is established on record that a blue
bull appeared in front of car, tired his best
to save the accident but the car dashed into
a tree. Hence, in this accident, the car
driver was not negligent. It is next
submitted by by learned counsel that the
father of the deceased is produced before
the Tribunal as PW-1 and a so called eye
witness Brijesh Sharma is produced as PW-
294 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Both these witnesses have deposed in
their testimony that in the said accident, the
car driver was not negligent and the
accident had taken place due to sudden
appears of blue bull. Hence, the appellants
have failed to prove that the car driver was
negligent under Section 166 of Motor
Vehicle Act, 1988, the claim petition can
succeeds if the negligence of the driver is
proved.

9. Learned counsel for the insurance
company
has
submitted
that
the
information of the accident was reported to
police station of which entry is made in
General Diary ( GD). This GD entry also
says that the accident took place due to
sudden appears of blue bull. Hence, learned
Tribunal has rightly concluded that in the
aforesaid accident, the car driver was not
negligent and rightly dismissed the claim
petition by awarding a sum of Rs.50,000/-,
under No Fault Liability , hence there is no
illegality in the impugned order which calls
for interference by this Court.

10. In addition to the aforesaid
submissions, learned counsel for Insurance
Company has vehemently submitted that
the accident took place as blue bull came
on the road all of sudden which was
beyond the control of driver of the car and
in order to save the blue bull caused the
accident. Hence, there was no negligence
and the accident in question was result of
'Act of God'.

11. The question which arises is
whether the accident was the result only
because the blue bull came on the road as
held by Tribunal or it was 'human
negligence'. While deciding the claim
petition, learned Tribunal has not kept in
mind the standard of proof required in
Motor Accident Claim Petition.

12. In Anita Sharma and Others Vs.
The New India Assurance Co. Ltd. and
Another, (2021) 1 SCC 171, the Full Bench
of Hon'ble Apex Court reiterated the view
taken in Parmeshwari Vs. Amir Chand,
(2011) 11 SCC 635, that it is very difficult
to trace the witnesses and collecting
information for an accident which took
place many hundreds of kilometers away
and further it is held by Hon'ble Apex
Court in Anita Sharma and Others (Supra)
that in a situation of this nature, the
Tribunal has to take a holistic view of the
matter. It was necessary to be borne in
mind that strict proof of an accident caused
by a particular vehicle in a particular
manner may not be possible to be done by
the claimants. The claimants were merely
to establish their case on the touchstone of
preponderance of probability.

13. The Division Bench of Madras
High Court also held in Reliance General
Insurance Co. Ltd. Vs. Subbulakshmi and
Others, passed in C.MA. No. 1482 of 2017
[C.M.P. No. 7919 of 2017. (CMA Sr. No.
76893 of 2016)] has referred the case of
Puspabai Purshottam Udeshi Vs. Ranjit
Ginning and Pressing Co., 1977ACJ 343
(SC), in which it is observed that the
normal rule is that it is for the plaintiff to
prove negligence but as in some cases
considerable hardship is caused to the
plaintiff as the true cause of the accident is
not known to him but is solely within the
knowledge of the defendant who caused it,
the plaintiff can prove the accident but
cannot prove how it happened to establish
negligence on the part of the defendant.
This hardship is sought to be avoided by
applying the principle of res ipsa loquitur.
The general purport of the words res ipsa
loquitur is that the accident 'speaks for
itself or tells its own story. There are cases
in which the accident speaks for itself so
5 All. Ompal Singh Sharma & Ors. Vs. National Insurance Company Ltd. & Ors.
295
that it is sufficient for the plaintiff to prove
the accident and nothing more. It will then
be for the defendant to establish that the
accident happened due to some other cause
than his own negligence. Where the maxim
is applied the burden is on the defendant to
show either that in fact he was not
negligent or that the accident might more
probably have happened in a manner which
did not connote negligence on his part. For
the application of the principle it must be
shown that the car was under the
management of the defendant and that the
accident is such as in ordinary course of
things does not happen if those who had the
management used proper care.

14. In Bimla Devi and Others VS.
Himachal RTC reported in 2009 (13) SCC
530, the Hon'ble Supreme Court held that it
was necessary to be borne in mind that strict
proof of an accident caused by a particular
vehicle in a particular manner may not be
possible to be done by the claimants. The
claimants were merely to establish their case
on the touchstone of preponderance of
probability. The standard of proof beyond
reasonable doubt could not have been applied.

15. In our case, the deceased was
traveling in the car, with Assistant Excise
Commissioner, Bijnor and Mohd Arif Jameel
and the car was being driven by driver Jameel
Ahmad- respondent no.3. The deceased died
on the spot. The driver of the car has not
stepped into the witness box while he was the
best witness to depose and prove the manner
in which the accident took place. It is not
disputed that the accident had taken place due
to coming of blue bull on the road but the
evidence has been misread by the learned
Tribunal.

16. It is the version of appellantsclaimants as well as respondents and
learned Tribunal also reached to the
conclusion that accident took place in order
to save the vehicle from blue bull which
came on the road all of sudden. Now here
comes the question, if the blue bull came
on the road before a vehicle whether it can
be held that negligence was not proved.

17. While considering the question of
inevitable accident, it will be useful to
reproduce a passage from celebrated
treaties on the Law of Torts, by Justice G.
P. Singh.

"All
causes
of
inevitable
accidents may be divided into two classes.

(1) Those which are occasioned
by
the
elementary
forces
of
nature
unconnected with the agency of man or
other cause; and

(2) Those which have their origin
either in the whole or in part in the agency
of man, whether in acts of commission or
omission, non-feasance or mis-feasance or
in any other causes independent of the
agency of natural forces. The term 'act of
God' is applicable to the former class."

18. Act of God is one arising from
natural causes. Some of the well-known
instances of "Act of God" are the storms,
the tides and the volcanic eruptions. They
are, in a sense, inevitable accidents beyond
the control of man. What is urged in this
case is that all inevitable accidents must be
taken as acts of God. Matters which are not
within the power of any party to prevent
are to be considered as acts of God as per
the Insurance Company. We are unable to
concur with the aforesaid argument of
learned counsel for the Insurance Company.
In our view, the accident may happen by
reason of the play of natural forces or by
intervention of human agency or by both. It
may be that in either of these cases
296 INDIAN LAW REPORTS ALLAHABAD SERIES
accidents may be inevitable. But it is only
those acts which can be traced to natural
forces and which have nothing to do with
the intervention of human agency that
could be said to be Acts of God. Cockburn
C. J.. in the leading case in Nugent v.
Smith. (1876-1 CPD 423) said.

"It is at once obvious, as was
pointed out by Lord Mansfield in Forward
v. Pittard, that all causes of inevitable
accident--" "fortuitus" -- may be divided
into two classes -- those which are
occasioned by the elementary forces of
nature unconnected with the agency of man
or other cause, and those which have their
origin either in the whole or in part in the
agency of man, whether in acts of
commission or omission, of nonfeasance or
of misfeasance, or in any other cause
independent of the agency of natural forces.
It is obvious that it would be altogether
incongruous to apply the term "act of God"
to the latter class of inevitable accident. It
is equally clear that storm and tempest
belong to the class to which the term "act
of God" is properly applicable."

19. In Halsbury's Laws of England,
Vol. 8, 3rd Edition, page 183, this question
is dealt with as under:

"An act of God. In the legal sense
of the term, may be defined as an
extraordinary occurrence or circumstance
which could not have been foreseen and
which could not have been guarded
against; or. more accurately, as an accident
due to natural causes, directly and
exclusively without human intervention,
and which could not have been avoided by
any amount of foresight and pains and care
reasonably to be expected of the person
sought to be made liable for it or who seeks
to excuse himself on the around of it. The
occurrence need not be unique, nor need it
be one that happens for the first time; it is
enough that it is extraordinary, and such as
could not reasonably be anticipated. The
mere fact that a phenomenon has happened
once, when it does not carry with it or
import any probability of a recurrence
(when, in other words, if does not imply any
law from which its recurrence can be
inferred) does not prevent that phenomenon
from being an act of God. It must, however,
be something overwhelming and not merely
an ordinary accidental circumstance, and it
must not arise from the act of man."

20. Coming of blue bull on the road
before a vehicle, as in the case on hand,
cannot be termed to hold that claimant did
not prove negligence. It is admitted fact
that the car, in which, the deceased was
traveling dashed into the tree even if it is
believed that it was while saving the blue
bull and overturned in a big pit. The driver
could not control his vehicle and lost
control and dashed with tree. This is not the
case that vehicle dashed into blue bull but it
dashed into tree, when the driver tried to
save the blue bull from hitting the car,
which goes to show that the car was being
plied at a high speed, had the car being
driven at normal speed, the accident could
have been avoided or its impact could be
minimized. This fact itself shows the
negligence of the driver, who was driving
the vehicle at an excessive speed. The Rule
propounded in Rylands Vs. Fletcher, 1868
Law Reports (3) HL 330, can apply to
accidents of vehicles in such cases and in
motor accident cases.

21. The above Rule eventually gained
approval in a large number of decisions
rendered by Courts in England and abroad.
Winfield on Torts has brought out even a
Chapter on the "Rule in Rylands Vs.
5 All. Ompal Singh Sharma & Ors. Vs. National Insurance Company Ltd. & Ors.
297
Fletcher. At page 543 of the 15th Edn. Of
the calibrated work the learned author has
pointed out that "over the years Rylands
Vs. Fletcher has been applied to a
remarkable variety of things; fire gas,
explosions, electricity, oil, noxious, fumes,
colliery spoil, rusty wire from a decayed
fence, vibrations, poisonous vegetation.

22. Act of God or vis major are the
forces which no human foresight can
provide most and of which human
prudence is not bound to recognize the
possibility. We are, therefore, of the opinion
that even apart from Section 140 of Motor
Vehicles Act, a victim in an accident which
occurred while using motor vehicle is
entitled to get compensation from the
Tribunal, unless any exception applies.

23. We are of the considered opinion
that if the driver of the vehicle would have
taken proper care and caution while plying
the vehicle at normal speed, the accident
could have been avoided because it is not
the case that the car hit the blue bull
directly but in order to save the blue bull, it
rammed into a tree and overturn in a ditch.

24. Hence, the finding of learned
Tribunal holding the accident to be the
result of ' No Negligence' is not sustainable
in eye of law and we hold that the accident
had taken place due to the negligence of the
driver of car involved in the accident.

25. The policy being in vogue and
though orally submitted by counsel for
respondents that there is breach of policy
and the insurance company did not
challenge the award as the amount awarded
was under Section 140 M.V. Act, if this
Court decides not to relegate the appellants
to Tribunal. The oral objection be heard.
We have perused the record, there is no
breach of policy proved which can either
exonerate the Insurance Company or permit
this Court to grant recovery rights to
Insurance Company. The finding of fact
that the driver of the vehicle had proper
driving licence is concurred with us. The
finding that the vehicle was insured on the
date of accident is also answered against
insurance company.

26. The quantum of compensation
payable to the appellants-claimants will
have to be decided as record is before this
Court and accident is decade old. We first
thought that the matter can be relegated to
the learned Tribunal for fixation of the
quantum of compensation but we are
mindful of the fact that this is a case in
which the accident happened more than 10
years ago. Hence, we incline to fix the
quantum of compensation here itself in
view
of
the
judgment
of
Bithika
Mazumdar and another Vs. Sagar Pal and
Others, (2017) 2 SCC 748 and of this Court
in F.A.F.O. No. 1999 of 2007 (Oriental
Insurance
Company
Ltd.
Vs.
Smt.
Ummida Begum and others) and also in
F.A.F.O. No. 1404 of 1999 (Smt. Ragini
Devi
and
others
Vs.
United
India
Insurance Company Ltd. and another)
decided on 17.04.2019 wherein it has been
held that if the record is with the appellate
Court, it can decide the compensation
instead of relegating the parties to the
Tribunal.

27. We find it very strange that the
learned Tribunal has opined that the
claimants - appellants have failed to prove
that the deceased was an employee in the
police department as per finding of issue
no. 5, while on this issue the learned
Tribunal
has
perused
the
salary
certificate of the deceased which is duly
issued by the excise department holds
298 INDIAN LAW REPORTS ALLAHABAD SERIES
that the same is not proved. Learned
Tribunal
has
disbelieved
this
salary
certificate only on the basis that the father
of the deceased PW-1 Om Pal Singh
Sharma has not deposed even a single word
in his testimony to prove the alleged salary
certificate. If it is so then also, in our
opinion the learned Tribunal has lost site of
the provision of Section 169 of Act, 1988.
The learned Tribunal has all the powers of
Civil Procedure Code, 1908 with regard to
summon any witness to prove a particular
document who award just compensation to
the claimants, learned Tribunal in suo moto
summoned the concerned employee of
Excise Department as a witness to prove
the salary certificate of the deceased but the
Tribunal has failed to do so.

28. Moreover, the salary certificate is
on record which is duly issued by Assistant
Excise Commissioner, Bijnor under his
signature and official stamp. Moreover, the
standard of proof in the motor accident
claim petition is not as strict as in civil or
criminal law. Proving any document in
order to award just compensation, there is
no requirement of law to prove the matter
or document beyond reasonable doubt.

29. In this case, the father of the
deceased, PW-1 has specifically deposed in
his cross examination that ' esjs yM+ds dh
ukSdjh izkscslu ij Fkh'. Moreover, in his
examination-in-chief, he has disclosed the
salary of his deceased son at Rs.12,000/-
per month. This testimony of PW-1 is fully
corroborated with the copy of salary
certificate issued by Excise Department
which is not proved otherwise but even
then the learned Tribunal did not take any
pain to summon the concerned employee /
accountant of the department with regard to
salary certificate. Hence, it can be said that
the learned Tribunal did not award just
compensation to the claimants and has lost
sight of beneficial legislative intention.

30. Keeping in view the oral and
documentary evidence on record, we are of
the considered opinion that the deceased
was a constable in excise department
although he was on probation. Copy of his
last salary certificate shows his gross salary
at Rs.9,947/- per month, wash allowance at
the rate of Rs.29/- and cycle allowance at
the rate of Rs.48/- will not be admissible
for the purpose of computation of salary.
Hence, we take the income of the deceased
at Rs.9,870/- per month.

31. Since the age of the deceased was
below 40 years and he was just 23 years old
and he was in permanent job, 50% would
be added towards future loss of income as
held by Hon'ble Apex Court in National
Insurance Company vs. Pranay Sethi
[2014 (4) TAC 637 (SC)]. Keeping in view
the 23 years of age of the deceased,
multiplier of 18 would be applied in the
light of the judgment of Hon'ble Apex
Court in the case of Smt.Sarla Verma vs.
Delhi Transport Corporation [2009 (2)
TAC 677 (SC)]. The deceased is survived
by his parents but the appellant nos. 3 and 4
are brother of the deceased and both are
major, hence, it cannot be assumed that
they would have been dependant on the
deceased. Hence, as per the judgment of
Apex Court in Munna Lal Jain & Anr. Vs.
Vipin Kumar Sharma & Ors. 2015 (6)
SCALE 552, 1⁄2 half would be deducted for
the personal expenses.

32. In the light of judgment of Pranay
Sethi (Supra), appellant shall be entitled to
get Rs.15,000/- for loss of estate and
Rs.15,000/- for funeral expenses. The
father and mother of the deceased will also
get Rs.40,000/- each for loss of love and
5 All. Ompal Singh Sharma & Ors. Vs. National Insurance Company Ltd. & Ors.
299
affection as they had lost their young son in
the road accident.

33. Hence, the total amount of
compensation, in view of the above
discussions, payable to the appellants is
being computed herein below:

1.
Annual income i.e. Rs.9,870/-
(per month) X 12
Rs.1,18,440/- P/A
2.
Percentage
towards
future
prospect : 50%
Rs.59,220/-
3.
Total income : Rs.1,18,440/- +
Rs.59,220/- =
Rs.1,77,660/-
4.
Income after deduction of 1⁄2
half
:
Rs.1,77,660/-
-
Rs.88,830/-
Rs.88,830/-
5.
Multiplier applicable : 18 :-
Rs.88,830/- X 18
Rs.15,98,940/-
6.
Amount under non pecuniary
head : Rs.15,000 + Rs.15,000
+ Rs.40,000/- + Rs.40,000 +
10 % upward revision of every
three years.
Rs.1,10,000/-
7.
Total
compensation:
Rs.15,98,940/- + Rs.1,10,000/-
Rs. 17,10,000/- (
rounded up)
8.
Amount after deduction of no
fault liability : Rs.17,10,000/- -
Rs.50,000/-

Rs.16,60,000/-.

34. It is pointed out by learned
counsel for the Insurance Company that the
appeal is delayed by 1263 days and the
interest of the aforesaid period would not
be paid to the appellants-claimants.

35. It is rightly pointed out by the
learned counsel for the Insurance Company
that appeal is delayed by 1263 days, hence,
interest of one year should be deducted. 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."

36. We fix the rate of interest as 7.5%
per annum till the date of judgment by the
learned Tribunal. No interest would be paid
for one year after the judgment of learned
Tribunal and 6% per annum rate of interest
would be paid thereafter.

37. In view of the above, the appeal is
partly allowed. Judgment and award
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount within a period of 12 weeks from
today with interest as discussed above 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.

38. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani vs. The
Oriental
Insurance
Company
Ltd.,
[2007(2) GLH 291] and this High Court in
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
300 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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.

39. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex
Court in Bajaj Allianz General Insurance
Company Pvt. Ltd. Vs. Union of India and
Others, vide order dated 27.01.2022, as the
purpose of keeping compensation is to
safeguard the interest of the claimants.
Since long time has elapsed, the amount be
deposited in the Saving Bank Account of
claimant(s) in a nationalized Bank without
F.D.R.
----------
(2022)05ILR A300
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.04.2022

BEFORE

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

First Appeal From Order No. 1302 of 2021

Union of India & Anr. ...Appellants
Versus
Smt. Alka Tyagi & Ors. ...Respondents

Counsel for the Appellants:
Sri Satish Kumar Rai, Sri Chandra Prakash
Yadav, Sri Shashi Prakash Singh

Counsel for the Resondents:
Sri Rahul Pandey

A. Civil Law - Motor Accident Act, 1988 -
UP
Motor
Vehicle
Rules,
1998
-
Compensation - Finding of fact, scope of
interference
-
Earlier
High
Court
remanded the matter on the issue of
quantum of compensation and Tribunal
decided
it
-
Contention
raised
by
appellant/Union of India that question of
contributory negligence was not decided
by the Tribunal - Permissibility - Held, the
grounds,
which
are
taken
by
the
appellants except the ground of quantum,
cannot be now agitated after a period of
15 years - High Court deprecated the
practice of Union of India for agitating a
ground which has attained finality under
the guise that the Tribunal has committed
error
in
not
deciding
the
issue
of
negligence
-
High
Court
awarded
litigation fee of Rs. 10,000/- to the
claimant for protracted litigation. (Para 9,
10 and 11).

Appeal dismissed (E-1)
List of Cases cited:-
1. UPSRTC Vs Km. Mamta & ors., reported in
AIR 2016 SC 948
2. Smt. Sarla Verma & ors. Vs Delhi Transport
Corp. & anr.; 2009 ACJ 1298
3. National Insurance Co. Ltd. Vs Mannat Johal
& ors. 2019 (2) T.A.C. 705 (S.C.)
4. A.V. Padma Vs Venugopal; 2012 (1) GLH
(SC), 442
5. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs U.O.I. & ors. decided by the Apex Court on
27.1.2022
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)