# Oriental Insurance Co. Ltd., Allahabad v. Shyam Babu Kesarwani & Anr

- **Citation:** (2022) 5 ILRA 785
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-08
- **Case number:** First Appeal From Order No. 1741 of 2002
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/oriental-insurance-co-ltd-allahabad-v-shyam-babu-kesarwani-anr-48589
- **Pages:** 10

## Headnote

A. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
negligence of minor child - daughter of the
claimant, died on account of rash and
negligent driving by the truck driver of truck
- deceased was 5 years of age - Held - even
under the Indian Penal Code, a child cannot
be held guilty till the age of 7 years - In the
instant case the minor was on the extreme
left and playing with other children - There
was nothing to show that the boy tried to go
across the path of the vehicle - the very fact
that the vehicle dashed with the child is a
factor which goes to show that the driver
was responsible for the accident and the
death of the boy - minor child has not
contributed to the accident - driver who is
the best witness did not even appear before
the tribunal also considered against the
driver of offending vehicle - issue decided
against the Insurance Company - a sum of
Rs.2,25,000/-
with
interest
would
be
payable (Para 19, 20, 25)

Allowed. (E-5)

List of Cases cited:

## Text

5 All. Oriental Insurance Co. Ltd., Allahabad Vs. Shyam Babu Kesarwani & Anr.
785
Insurance Co. Ltd.) decided on 19.3.2021
while disbursing the amount.

26. 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 A785
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.04.2022

BEFORE

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

First Appeal From Order No. 1741 of 2002
With
First Appeal From Order No. 2127 of 2021

Oriental Insurance Co. Ltd., Allahabad
 ...Appellant
Versus
Shyam Babu Kesarwani & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Ramesh Singh, Sri K.L. Grover

Counsel for the Respondents:
Sri S.K. Srivastava, Sri D.S. Shukla, Sri Devi
Shanker Shukla Sri Sushil Kumar Srivastava

A. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
negligence of minor child - daughter of the
claimant, died on account of rash and
negligent driving by the truck driver of truck
- deceased was 5 years of age - Held - even
under the Indian Penal Code, a child cannot
be held guilty till the age of 7 years - In the
instant case the minor was on the extreme
left and playing with other children - There
was nothing to show that the boy tried to go
across the path of the vehicle - the very fact
that the vehicle dashed with the child is a
factor which goes to show that the driver
was responsible for the accident and the
death of the boy - minor child has not
contributed to the accident - driver who is
the best witness did not even appear before
the tribunal also considered against the
driver of offending vehicle - issue decided
against the Insurance Company - a sum of
Rs.2,25,000/-
with
interest
would
be
payable (Para 19, 20, 25)

Allowed. (E-5)

List of Cases cited:

1. Kishan Gopal & anr. Vs Lala & ors., 2013
(101) ALR 281 (SC)

2. Manju Devi's case, 2005 (1) TAC 609 (SC)

3. United India Insurance Co. Ltd.. Vs. Mumtaz
Ahmad & anr 2017 (2) AICC 1229

4. U.P.S.R.T.C. Vs. Km. Mamta AIR 2016 (SC)
948

5. Rylands Vs Fletcher, (1868) 3 HL (LR) 330

6. Jacob Mathew Vs St. of Pun., 2005 0 ACJ(SC)
1840

7. Archit Saini & anr. Vs Oriental Insurance
Comp. Ltd., AIR 2018 SC 1143

8. Darshan Singh Vs Vimal Rani, (1998) 1 SCC
265 (ALL) (DB)

9. New India Assurance Co. Ltd. Vs Sita
Ram Kevidayal Jaiswal, 2012 (2) AllMR
429, 2012 (2) MahLJ 710, 2012 (2) TAC
156

10. Machindranath Kernath Vs D.S. Mylarappa,
2008 ACJ 1964

11. Oriental Insurance Comp. Ltd. Vs Poonam
Kesarwani & ors., 2008 LawSuit (All) 1557
786 INDIAN LAW REPORTS ALLAHABAD SERIES
12. National Insurance Co. Ltd. Vs. Mannat
Johal & ors., 2019 (2) T.A.C. 705

13. Bajaj Allianz General Insurance Comp. Pvt.
Ltd. Vs U.O.I.

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

1. Heard Sri Ramesh Singh, learned
counsel for the insurance company; Shri
Anurag Shukla appearing for Shri Devi
Shanker Shukla, learned counsel for the
claimants; and perused the record and
award.

2. Appeal No.2127 of 2021, at the
behest of the claimant, challenges the
judgment and award dated 15.7.2002
passed by Motor Accident Claims Tribunal/
Special
Judge,
E.C.
Act,
Allahabad
(hereinafter referred to as 'Tribunal') in
Motor Accident Claim Petition No.160 of
2001 awarding a sum of Rs.65,000/- with
interest
at
the
rate
of
8.5%
as
compensation.
The
appellant
has
questioned the compensation granted.

3. Appeal No.1741 of 2002 is by
Insurance company challenging the award
on several grounds; (i) driver of vehicle
involved not joined as party; (ii) licence of
driver of vehicle insured was fake as first
licence was found fake but there were two
licences
the
tribunal
negatived
this
objection; and (iii) the case is of
Contributory negligence and issue of
negligence has been wrongly decided.

4. While issuing notice, this Court
had called for the record of the tribunal.
Section 173 in The Motor Vehicles Act,
1988 reads is as follows:

173. Appeals.--

(1) Subject to the provisions of
sub-section (2) any person aggrieved by an
award of a Claims Tribunal may, within
ninety days from the date of the award,
prefer an appeal to the High Court:
Provided that no appeal by the person who
is required to pay any amount in terms of
such award shall be entertained by the
High Court unless he has deposited with it
twenty-five thousand rupees or fifty per
cent. of the amount so awarded, whichever
is less, in the manner directed by the High
Court: Provided further that the High
Court may entertain the appeal after the
expiry of the said period of ninety days, if it
is satisfied that the appellant was prevented
by sufficient cause from preferring the
appeal in time.

(2) No appeal shall lie against
any award of a Claims Tribunal if the
amount in dispute in the appeal is less than
ten thousand rupees."

5. The brief facts of the case in a
nutshell are that Km. Pooja daughter of
Shyam Babu Kesarwani, died on account of
rash and negligent driving by the truck
driver of truck number MP 17 C 0034 on
16th February, 2001 at about 6 p.m.. The
unfortunate death of Km. Pooja was the
result of rash and negligent driving by the
truck driver and the first information report
was lodged as case crime no.15 of 2001.
The claimant/respondent is the father of the
deceased, and since at the time of death age
of the deceased was 5 years of age. The
claimant filed claim petition for claiming
compensation of Rs.2,10,000/- before the
Motor Accident Tribunal. The owner of the
vehicle contested the case but admitted that
he is the registered owner. The owner took
plea that the vehicle was duly insured with
the Oriental Insurance Company and the
5 All. Oriental Insurance Co. Ltd., Allahabad Vs. Shyam Babu Kesarwani & Anr.
787
driver was driving the vehicle with a valid
licence.

6. There is no dispute regarding
involvement of vehicle. The injuries caused
death is not disputed. Except the three
issues which are posed for adjudicating the
rest of the findings of the tribunal in the
award have attained finality and therefore
not discussed.

7. F.A.F.O No. - 2127 of 2021 was
filed in 2003 delay was condoned in the
year 2021. This is a claimants' appeal
claiming enhancement for the death of
child who was 5 years of age at the time of
death. Learned counsel for the appellant
has relied on the decisions of this Court and
Apex Court in Kishan Gopal and another
v. Lala and others, 2013 (101) ALR 281
(SC) and Manju Devi's case, 2005 (1)
TAC 609 (SC) interpreted and by this Court
in its recent decision of this Court in
United India Insurance Company Limited.
Vs. Mumtaz Ahmad and Another, 2017 (2)
AICC 1229 wherein this Court held as
follows:

"6. Sri Ram Singh has heavily
relied on the decision in the case of
Kishan Gopal and another v. Lala and
others, 2013 (101) ALR 281 (SC) = 2013
(131) AIC 219 = 2014 (1) AICC 208 (SC)
and Manju Devi's case, 2005 (1) TAC 609
= 2005 AICC 208 (SC). It goes without
saying the notional figure fixed by the
Apex Court since Manju Devi's judgment
has been consistently Rs.2,25,000 for
children below the age of 15 years. I think
that is just and proper and hence, the
amount requires to be enhanced from
Rs.1,57,000 to Rs.2,25,000 with 6% be
recovered from the owner. The appeal is
partly allowed. The cross-objection is also
partly allowed."

8. The learned counsel contended that
even in the year of accident the amount
payable would be Rs.5,00,000/- (Rupees
Five Lacs Only) as per decision of the
Apex Court in Kishan Gopal (Supra).

9. F.A.F.O. No.1741 of 2002: this
appeal is preferred by Insurance Company
and the challenge is on five grounds, (i)
that the claim petition was bad for non -
joinder of necessary parties as the driver
was not made party in this claim petition;
(ii) that the driving licence which was
given by the owner of the driver of vehicle
involved, after verification by insurance
company was found fake, but the learned
tribunal did not consider this evidence
which
was
a
public
document
and
admissible under the Evidence Act, without
examining the authority concerned; and
comitted material illegally in awarding; and
committed material illegality in awarding
compensation
directing
the
appellant
company to indemnity the owner for acts of
his driver; (iii) it is submitted that the
vehicle insured was being plied against the
Insurance
Policy
and
the
appellant
Company was not liable to pay any
compensation; but the learned tribunal
fastened the liability against the appellant
company though the claim petition was
liable to be dismissed; (iv) It is further
submitted
that
the
learned
tribunal
erroneously drew inference that the second
driving licence was not verified by the
opposite party (appellant company) and
presumed that the driving was having a
valid licence and passed the award against
the appellant company in violation of
section 6 of the Motor Vehicles Act; and
(v)
the
accident
occurred
due
to
contributory negligence on the part of the
deceased, was playing on the road, but the
learned tribunal without considering the
case
on
facts
and
law,
awarded
788 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation on the higher side against the
appellant company in breach of established
principles of law.

10. The claimant is aggrieved by the
compensation awarded, where as the
Insurance Company has raised several
grounds for challenging the said award. In
light of the judgment of the Apex Court
reported in U.P.S.R.T.C. Vs. Km. Mamta
AIR 2016 (SC) 948, all the issues raised
have to be decided by this Court under
Section 173 of the Motor Vehicles Act.

11. In view of the submission made
by both the counsels as far as negligence is
concerned this court will have to decide the
issue of negligence. It would be relevant to
discuss
the
principles
for
deciding
negligence and to decide whether it is a
case
of
contributory
negligence
and
whether the minor child can contribute to
the accident having taken place which will
also have to be looked into.

12. The principles enunciated for
considering the same in a motor accident
claim will be sifted and discussed finding
on negligence.

13. Negligence means failure to
exercise required degree of care expected
of a prudent person. Negligence is the
omission to do something
which a
reasonable
man,
guided
upon
the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence,
it is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one, it is rather a
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no legal
consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen and likely to
cause physical injury to person. The degree
of care required, of course, depends upon
facts in each case. On these broad
principles, the negligence of parties to
accident is required to be assessed.

14. 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 it is the duty of a
fast moving vehicle to slow down and if
driver did not slow down, but continued to
proceed at a high speed without caring to
notice that another person/vehicle was at
what speed was either then the conduct of
driver necessarily leads to conclusion that
vehicle was being driven by him rashly as
well as negligently and the driver can be
held to be the author of the unforseen
incident.

15. 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.

16. In light of the above discussion,
even if courts may not by interpretation
displace the principles of law which are
considered to be well settled and, therefore,
5 All. Oriental Insurance Co. Ltd., Allahabad Vs. Shyam Babu Kesarwani & Anr.
789
court cannot dispense with proof of
negligence altogether in all cases of motor
vehicle accidents, it is possible to develop
the law further on the following lines; when
a motor vehicle is being driven with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits (reference to Jacob Mathew
V/s. State of Punjab, 2005 0 ACJ(SC)
1840) would be necessary.

17. The negligent act must contribute
to the accident having taken place. The
Apex Court recently has considered the
principles of negligence in case of Archit
Saini and Another v. Oriental Insurance
Company Limited, AIR 2018 SC 1143.

18. The burden of proof would
ordinarily be cast on the defendants in a
motor accident claim petition to prove that
motor vehicle driven by the driver was
being driven with reasonable care or it is
proved that there is equal negligence on the
part the other side in causing the accident.

19. Contention of learned counsel for
the insurance company qua negligence of
minor child as pleaded by the appellants is
required to the rejected as even under the
Indian Penal Code, a child cannot be held
guilty till the age of 7 years. In our case,
the law is very clear that the factors which
are
necessary
for
consideration
of
negligence against insurance company. The
minor was on the extreme left and playing
with other children. There was nothing to
show that the boy tried to go across the
path of the vehicle suddenly just because it
is mentioned that the vehicle was being
driven slowly the same has not been proved
that the driver was not rash and negligent.
The very fact that the vehicle dashed with
the child is a factor which goes to show that
the driver was responsible for the accident
and the death of the boy. This Court is
fortified in its view by the Division Bench
of this Court in Darshan Singh v. Vimal
Rani, (1998) 1 SCC 265 (ALL) (DB).

20. The finding of the tribunal is also
very important and this Court concurs with
the said finding, the reason being the minor
child was not found to have contributed to
the accident having taken place and,
therefore, this issue is also decided against
the Insurance Company. The fact that the
driver who is the best witness did not even
appear
before
the
tribunal
is
also
considered against the driver of offending
vehicle.

Breach of Policy

21. Sections 147, 148 and 149 of the
Motor Vehicles Act, 1988 reads are 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 27 [injury to any person,
including owner of the goods or his
authorised representative carried in the
790 INDIAN LAW REPORTS ALLAHABAD SERIES
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
the prescribed time, the insurer shall,
within seven days of the expiry of the
period of the validity of the cover note,
5 All. Oriental Insurance Co. Ltd., Allahabad Vs. Shyam Babu Kesarwani & Anr.
791
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.

Section
148
in
The
Motor
Vehicles Act, 1988

148. Validity of policies of
insurance
issued
in
reciprocating
countries.--Where, in pursuance of an
arrangement between India and any
reciprocating country, the motor vehicle
registered in the reciprocating country
operates on any route or within any area
common to the two countries and there
is in force in relation to the use of the
vehicle in the reciprocating country, a
policy of insurance complying with the
requirements of the law of insurance in
force
in
that
country,
then,
notwithstanding anything contained in
section 147 but subject to any rules
which may be made under section 164,
such policy of insurance shall be
effective throughout the route or area in
respect of which, the arrangement has
been made, as if the policy of insurance
had complied with the requirements of
this Chapter.

Section
149
in
The
Motor
Vehicles Act, 1988

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 subsection (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:--
792 INDIAN LAW REPORTS ALLAHABAD SERIES

(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) 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

(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
5 All. Oriental Insurance Co. Ltd., Allahabad Vs. Shyam Babu Kesarwani & Anr.
793
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
section 165 and "award" means an award
made by that Tribunal under section 168."

22. The provision of Section 158 (6)
will also apply for the benefit of the
claimants. The decision in First Appeal
From Order No.1731 of 2010 dated
21.11.2011 in the case of New India
Assurance Co. Ltd. v. Sita Ram Kevidayal
Jaiswal, 2012 (2) AllMR 429, 2012 (2)
MahLJ 710, 2012 (2) TAC 156 will enure
for the benefit of the claimants.

23. It is contended that the driver was
not joined and, therefore, the claim petition
should have been dismissed. The said issue
is not longer res integra in case of
Machindranath
Kernath
v.
D.S.
Mylarappa, 2008 ACJ 1964, the said issue
has been decided.

24. In the light of the judgment in
Oriental Insurance Company Limited v.
Poonam Kesarwani and others, 2008
LawSuit (All) 1557, when it was not
proved by the Insurance Company that
there was breach of policy conditions, the
appeal cannot succeed.

25. As far as the amount of
compensation for the death of five years
old child is concerned, the judgment of
Kisan Gopal (Supra) has been interpreted
and distinguished by this Court and,
therefore, a sum of Rs.2,25,000/- with
interest would be payable.

26. As far as issue of rate of interest is
concerned, the rate of interest on awarded
amount of Rs.65,000/- at the rate of 8.5%
can be found fault with as repo rate in the
year of 2001 and when the matter was
decided was considered and therefore rate
of interest 8.5% cannot be found fault. 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
794 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

27. The Tribunal shall follow the
guidelines issued by the Apex Court in Bajaj
Allianz
General
Insurance
Company
Private Ltd. v. Union of India and others
vide order dated 27.1.2022, as the purpose of
keeping compensation is to safeguard the
interest of the claimants. As 10 years have
elapsed, the amount be deposited in the
Saving Account of claimants in Nationalized
Bank without F.D.R.

28. Hence the appeal preferred by the
insurance company being devoid of merits
and is dismissed and the appeal preferred by
the claimant is partly allowed. Hence, the
respondent-insurance company would deposit
a sum of (Rs.2,25,000 - Rs.65,000) =
Rs.1,60,000/- with interest at the rate of
7.5%. Judgment and decree passed by the
Tribunal shall stand modified to the aforesaid
extent. The Insurance Company shall deposit
the additional amount within a period of 12
weeks from today with interest at the rate of
7.5% on additional amount 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.

29. This Court is thankful to learned
counsels for the parities for getting these very
old matters disposed off.

30. The record be sent back to the
Court below, if any.
----------
(2022)05ILR A794
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2022

BEFORE

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

First Appeal From Order No. 1998 of 2021

Smt. Kamini Singh & Ors. ...Appellants
Versus
Raj Kumar Pandey & Ors. ...Respondents

Counsel for the Appellants:
Sri Ashok Kumar Singh, Sri Gaurav Singh

Counsel for the Respondents:
Sri Ajay Singh, Sri Shashi Kant Rai

A. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - Income -
income of the deceased was Rs.3,26,856 -
Out of which, the Tribunal deducted House
Rent Allowance of Rs. 8040 and Income
Tax of Rs. 6882 - Held - deduction of
House Rent Allowance could not have
been
done
and
the
only
deduction
permissible
from
the
salary
of
the
deceased
is
income
tax
-
out
of
Rs.3,26,856 only Income Tax of Rs.6882
would be deducted therefore, the income
for
the
purpose
of
computing
compensation would be Rs.3,26,856 -
6882 = 3,19,974/- per annum (Para 19)
B. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - Future Loss
of Income - Tribunal not granted any
amount towards future loss of income by
assigning
reason that
father
of the
deceased is a retired government servant
and is getting pension, therefore, he has
not been dependent on the deceased, the
mother
of
the
deceased-has
been
dependent on the father of the deceased