# Panchratni & Ors v. Smt. Manju Singh & Ors

- **Citation:** (2022) 5 ILRA 308
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-25
- **Case number:** First Appeal From Order No. 2386 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/panchratni-ors-v-smt-manju-singh-ors-48519
- **Pages:** 11

## Headnote

A. Civil Law - Motor Accident Act, 1988 -
Section 169 - Claim - Compensation -
Documentary evidence - Proof - 42 years
old person died in accident, was Head
Master - Tribunal has brushed aside the
document on basis that it is not a public
document
and
cannot
be
taken
in
evidence and hence considers the income
of deceased as that of a labourer - Validity
challenged - Held, the document may not
be public document, if the tribunal had
doubt, it could invoke procedure u/s 169
and could suo moto summoned the officer
who had issued the certificate but without
any
rebuttal
evidence
by
owner
or
insurance Co. could not have discarded
the document and decided that deceased
who was a person in vocation was
equated with labourer - High Court recomputed compensation by determining
the income of deceased Rs. 27,000/- and
adding
30%
future
prospects
and
multiplier of 14 and awarded 7.5%
interest. (Para 18, 20 and 22)

B. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,
when it can be applied - 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
5 All. Panchratni & Ors. Vs. Smt. Manju Singh & Ors.
309
accidental though it is normally accidental
- 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. (Para 9)

C. Motor Accident Claim - Principle of
contributory negligence - Scope and
meaning
-
A
person
who
either
contributes or is co author of the accident
would be liable for his contribution to the
accident having taken place. (Para 10)
D. Motor Accident Claim - Contributory
negligence and composite negligence -
Difference - In the case of contributory
negligence, a person who has himself
contributed to the extent cannot claim
compensation for the injuries sustained by
him in the accident to the extent of his
own negligence, whereas in the case of
composite negligence, a person who has
suffered has not contributed to the
accident but the outcome of combination
of negligence of two or more other
persons - It is only in the case of
contributory negligence that the injured
himself has contributed by his negligence
in the accident. (Para 13)
E. 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 - 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. (Para 24)
Appeal of Insurance Co. dismissed and of
claimants partly allowed (E-1)
List of Cases cited:-

## Text

308 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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.

21. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex
Court in Bajaj Allianz General Insurance
Company Privae Ltd. vs. 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.
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 A308
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2022

BEFORE

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

First Appeal From Order No. 2386 of 2013
&
First Appeal From Order No. 2391 of 2013

Panchratni & Ors. ...Appellants
Versus
Smt. Manju Singh & Ors. ...Respondents

Counsel for the Appellants:
Sri Rishi Kant Rai, Sri S.K. Sharma, Sri
Shailendra Sharma

Counsel for the Resondents:
Sri Nishant Mehrotra, Sri S.N. Yadav, Sri
Sanjay K. Singh, Sri Sanjay Kumar

A. Civil Law - Motor Accident Act, 1988 -
Section 169 - Claim - Compensation -
Documentary evidence - Proof - 42 years
old person died in accident, was Head
Master - Tribunal has brushed aside the
document on basis that it is not a public
document
and
cannot
be
taken
in
evidence and hence considers the income
of deceased as that of a labourer - Validity
challenged - Held, the document may not
be public document, if the tribunal had
doubt, it could invoke procedure u/s 169
and could suo moto summoned the officer
who had issued the certificate but without
any
rebuttal
evidence
by
owner
or
insurance Co. could not have discarded
the document and decided that deceased
who was a person in vocation was
equated with labourer - High Court recomputed compensation by determining
the income of deceased Rs. 27,000/- and
adding
30%
future
prospects
and
multiplier of 14 and awarded 7.5%
interest. (Para 18, 20 and 22)

B. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,
when it can be applied - 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
5 All. Panchratni & Ors. Vs. Smt. Manju Singh & Ors.
309
accidental though it is normally accidental
- 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. (Para 9)

C. Motor Accident Claim - Principle of
contributory negligence - Scope and
meaning
-
A
person
who
either
contributes or is co author of the accident
would be liable for his contribution to the
accident having taken place. (Para 10)
D. Motor Accident Claim - Contributory
negligence and composite negligence -
Difference - In the case of contributory
negligence, a person who has himself
contributed to the extent cannot claim
compensation for the injuries sustained by
him in the accident to the extent of his
own negligence, whereas in the case of
composite negligence, a person who has
suffered has not contributed to the
accident but the outcome of combination
of negligence of two or more other
persons - It is only in the case of
contributory negligence that the injured
himself has contributed by his negligence
in the accident. (Para 13)
E. 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 - 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. (Para 24)
Appeal of Insurance Co. dismissed and of
claimants partly allowed (E-1)
List of Cases cited:-
1. U.P.S.R.T.C. Vs Km. Mamta AIR 2016 (SC)
948
2. National Insurance Co. Ltd. Vs Pranay Sethi &
ors. 2017 0 Supreme (SC) 1050
3. Sudhir Bhuiya Vs National Insurance Co. Ltd.
& anr., 2005(1) TAC 66 (Cal.)
4. First Appeal From Order No. 1818 of 2012;
Bajaj Allianz General Insurance Co. Ltd. Vs Smt.
Renu Singh & ors. decided on 19.7.2016
5. Khenyei Vs New India Assurance Co. Ltd. &
ors. 2015 LawSuit (SC) 469
6. Renu Rani Shrivastava Vs New India
Assurance Co. Ltd, AIR 2019 SC 5719
7.
General
Manager,
Kerala
State
Road
Transport Corp., Trivandrum Vs Susamma
Thomas & ors. AIR 1994 SC 1631
8. Vimla Devi & ors. Vs National Insurance Co.
Ltd. & anr.; (2019) 2 SCC 186
9. Anita Sharma Vs New India Assurance Co.
Ltd.; (2021) 1 SCC 171
10. National Insurance Co. Ltd. Vs Pranay Sethi
& ors. 2017 0 Supreme (SC) 1050
11. Sarla Verma Vs Delhi Transport Corp.;
(2009) 6 SCC 121
12. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (S.C.)
13. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co. Ltd.; 2007(2) GLH 291
14. Review Application No. 1 of 2020 in First
Appeal From Order No. 23 of 2001; Smt.
Sudesna & ors. Vs Hari Singh & anr.
15. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs U.O.I. & ors. decided by Apex Court on
27.1.2022
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard Shri Rishi Kant Rai, learned
counsel
appearing
for
the
original
310 INDIAN LAW REPORTS ALLAHABAD SERIES
claimants; Shri Nishant Mehrotra, learned
counsel for the Insurance company; none
appeared for the owner. Perused the record

2. These appeals are preferred both
by claimants and also by Insurance
company, F.A.F.O. No.2356 of 2013 is at
the behest of the claimants, challenges
the
judgment
and
decree
dated
14.05.2013 passed by Motor Accident
Claims Tribunal/District
Judge, Mau
(hereinafter referred to as 'Tribunal') in
Motor Accident Claim Petition No.195 of
2010 awarding a sum of Rs.4,64,500/-
with interest at the rate of 6% as
compensation.

3. F.A.F.O. No.2391 of 2013 is
preferred
by
Insurance
company
challenging the award on following
grounds;

(a) It is challenged that the
award is bad as the tribunal has erred on
facts. It is alleged that the accident did
not involve, the vehicle insured namely
Tata Mazic bearing Registration No. UP
54 D 2561.

(b) It is further submitted that
the death of Subhash Chandra was not
due to the accidental injuries and the
driver of Tata Magic was not driving the
vehicle negligently;

(c) It is submitted that the driver
driving, Tata Magic was not having
proper driving licence.

(d) It is further alleged that the
accident occurred due to sole negligence
on the part of the driver of the motorcycle
on which the deceased was allegedly
travelling at the time of the alleged
accident.

(e) It is further submitted that
the deceased was not a third party and,
therefore, there was no liability which
was cast on the insurance company;

(f) It is further averred that there
is liability to pay compensation could not
be fastened on the appellate side.

(g) It is further submitted that
presence of PW 2 and PW 3 was
completely doubtful at the place and time
of the alleged accident and their evidence
were completely untrustworthy.

(h) It is alleged that there was a
major unexplained delay in lodging the
FIR. It is further alleged that learned
Tribunal failed to appreciate the evidence
in right perspective.

(i) It is submitted by learned
counsel for Insurance Company that the
findings recorded by the learned tribunal on
issue no.1 was erroneous, perverse and based
on assumptions and irrelevant considerations.

(j) It is further submitted that it was
not established from the evidence on record
that the driver of the motorcycle on which
deceased was allegedly travelling at the time
of alleged accident was having a valid and
effective driving licence at the time of the
alleged accident

(k) It is further submitted that the
alleged photo copy of the driving licence of
the driver of the vehicle Tata Magic in
question was inadmissible in evidence.

(l) It is submitted that the tribunal
failed to consider the said aspect and acted
illegally in considering the said alleged
photo copy of the driving licence in
question while deciding issue no.3; it is
also stated that it was not established from
the evidence on record that the vehicle in
question was having a valid and effective
fitness certificate and a valid permit at the
time of the alleged accident; it is submitted
that the findings recorded by the Tribunal
on issue no.3 are illegal, perverse and based
on irrelevant considerations.
5 All. Panchratni & Ors. Vs. Smt. Manju Singh & Ors.
311

(m) It is further submitted that the
employment and the income of the
deceased is doubtfull. The Tribunal acted
illegally in not appreciating the said aspect
of the matter, and in assuming the income
of the deceased at Rs.3000/- per month.

(n) It is further submitted that
tribunal acted illegally in deducing only
1/4th of the alleged income of the deceased
towards personal expenses.

(o) It is alleged that tribunal acted
illegally in awarding interest of 6% per
annum to the claimants/respondents.

(p) It is averred that the multiplier
adopted by the learned tribunal was on
higher side and was erroneous.

(q) It is submitted that the learned
tribunal acted illegally on assumptions and
in a perverse manner in awarding Rs.9,500
for non pecuniary damages.

4. The Apex Court in UPSRTC Vs.
Km. Mamta and others, reported in AIR
2016 SC 948, has held that all the issues
raised in the memo of appeal are required
to be addressed and decided by the first
appellate court.

5. In F.A.F.O. No. 2386 of 2013, it is
submitted by learned counsel for the
claimants that the Tribunal has not granted
any amount towards future loss of income
of the deceased which is required to be
granted in view of the decision in National
Insurance Company Limited Vs. Pranay
Sethi and Others, 2017 0 Supreme (SC)
1050. It is further submitted that amount
under non-pecuniary heads granted and the
interest awarded by the Tribunal are on the
lower side and requires enhancement.
Learned counsel submitted that deceased
was Headmaster in Govt. Primary School
and was getting Rs.28,232/- per month as
per salary slip. It is also submitted that as
the deceased was survived by his wife and
five
minor
children
and
hence
the
deduction towards personal expenses of 1⁄4
made by tribunal is not in dipspute. The
multiplier has to be as per age of deceased
should have been granted 14 instead of 15.
The tribunal has not granted future loss of
income which should be 30% of income of
deceased as per Pranay Sethi's judgment. It
is further submitted that the Legal heirs of
Subhash Chandra would be entitled to
compensation as Subhas Chandra was not a
author or co-author of the accident having
taken place. It was a case of negligence of
Tata Magic and, therefore, liability has
been rightly fastened on the insurance
company. Just because there was delay in
FIR cannot be held that the petition should
have been dismissed on the said grounds.

6. Learned counsel for the Insurance
company has submitted that claimants have
not proved the income of deceased. The
tribunal has, therefore, rightly considered
the income at minimum scale and the
multiplier should have been 14 and not 15.
The tribunal could not have granted any
amount under the head of future loss of
income as the judgment in Sarla Verma
(infra) did not specify that people not in
service, should be granted future loss of
income. It is further submitted that rate of
interest granted is just and proper, it does
not require any enhancement. It is further
submitted that tribunal has committed an
error in considering the income of the
deceased.
Learned
counsel
for
the
Insurance company has contended that the
multiplier is on higher side. Learned
counsel for the Insurance has also heavily
relied on the decision of the Calcutta High
Court in Sudhir Bhuiya v. National
Insurance Company Ltd. and another,
2005(1) TAC 66 (Cal.) so as to contend that
the tribunal could not have considered the
document which was not public document
312 INDIAN LAW REPORTS ALLAHABAD SERIES
and could not have considered the income
of the deceased.

7. F.A.F.O. No.2391 of 2013:-
Question of involvement of vehicle and
negligence are decided by these findings.

8. The question of involvement has
been raised by the appellant and has
contended that deceased was not a third
party as to the vehicle in question. While
going through the record, it is very clear
that the vehicle was involved in the
accident. The finding of facts in issue no. 1
is that the vehicle being Tata Magic was
mentioned in the FIR. The finding is very
clear that the FIR was lodged on 18.8.2010.
PW-1, PW-2, and PW-3 have stated in their
ocular version that vehicle being Tata
Magic driver drove the vehicle rashly and
negligently. The vehicle in question was
involved is also proved by the fact that the
driver of the vehicle did not step into the
witness box. The charge sheet was laid
against the driver of Tata Magic. Hence, the
submission that vehicle was not involved is
unsustainable. The release order also lends
credence to our finding that vehicle was
involved in the accident.

9. 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 which
is normally accidental. More particularly, it
connotes reckless driving and the injured
must always prove that the either side is
negligent. If the injury rather death is
caused by something owned or controlled
by the negligent party then he is directly
liable otherwise the principle of "res ipsa
loquitur" meaning thereby "the things
speak for itself" would apply.

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

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

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

17. It would be seen that burden
of proof for contributory negligence on the
part of deceased has to be discharged by
the opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection
5 All. Panchratni & Ors. Vs. Smt. Manju Singh & Ors.
313
where two roads cross each other, it is the
duty of a fast moving vehicle to slow down
and if driver did not slow down at
intersection, but continued to proceed at a
high speed without caring to notice that
another vehicle was crossing, then the
conduct of driver necessarily leads to
conclusion that vehicle was being driven by
him rashly as well as negligently.

18. 10th Schedule appended to
Motor
Vehicle
Act
contain
statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation
clearly directs that the driver of every
motor vehicle to slow down vehicle at every
intersection or junction of roads or at a
turning of the road. It is also provided that
driver of the vehicle should not enter
intersection or junction of roads unless he
makes sure that he would not thereby
endanger
any
other
person.
Merely,
because driver of the Truck was driving
vehicle on the left side of road would not
absolve him from his responsibility to slow
down vehicle as he approaches intersection
of roads, particularly when he could have
easily seen, that the car over which
deceased was riding, was approaching
intersection.

19. In view of the fast and
constantly increasing volume of traffic,
motor vehicles upon roads may be regarded
to some extent as coming within the
principle of liability defined in Rylands V/s.
Fletcher, (1868) 3 HL (LR) 330. From the
point of view of pedestrian, the roads of
this country have been rendered by the use
of motor vehicles, highly dangerous. 'Hit
and run' cases where drivers of motor
vehicles who have caused accidents, are
unknown. In fact such cases are increasing
in number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the case
may be, should be entitled to recover
damages if principle of social justice
should have any meaning at all.

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

21. In the light of the above
discussion, we are of the view that even if
courts may not by interpretation displace
the principles of law which are considered
to be well settled and, therefore, court
cannot dispense with proof of negligence
altogether in all cases of motor vehicle
accidents, it is possible to develop the law
further on the following lines; when a
motor
vehicle
is
being
driven
with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits (per three-Judge Bench in Jacob
Mathew V/s. State of Punjab, 2005 0
ACJ(SC) 1840).

22. By the above process, the
burden of proof may ordinarily be cast on
the defendants in a motor accident claim
petition to prove that motor vehicle was
being driven with reasonable care or that
there is equal negligence on the part the
other side."
314 INDIAN LAW REPORTS ALLAHABAD SERIES

12. As we are concerned as to whether
qua the death of pillion rider if we hold the
driver to be contributor to accident whether
deduction would be proper or not reference
to case titled Khenyei Vs. New India
Assurance Company Limited & Others,
2015 LawSuit (SC) 469, is necessary
wherein the Apex Court has held as under:

"4. It is a case of composite
negligence where injuries have been caused
to the claimants by combined wrongful act
of joint tort feasors. In a case of accident
caused by negligence of joint tort feasors,
all the persons who aid or counsel or direct
or join in committal of a wrongful act, are
liable. In such case, the liability is always
joint and several. The extent of negligence
of joint tort feasors in such a case is
immaterial for satisfaction of the claim of
the plaintiff/claimant and need not be
determined by the by the court. However, in
case all the joint tort feasors are before the
court, it may determine the extent of their
liability for the purpose of adjusting interse equities between them at appropriate
stage. The liability of each and every joint
tort feasor vis a vis to plaintiff/claimant
cannot be bifurcated as it is joint and
several liability. In the case of composite
negligence, apportionment of compensation
between tort feasors for making payment to
the plaintiff is not permissible as the
plaintiff/claimant has the right to recover
the
entire
amount
from
the
easiest
targets/solvent defendant.

13. There is a difference between
contributory and composite negligence. In
the case of contributory negligence, a
person who has himself contributed to the
extent cannot claim compensation for the
injuries sustained by him in the accident to
the extent of his own negligence;whereas in
the case of composite negligence, a person
who has suffered has not contributed to the
accident but the outcome of combination of
negligence of two or more other persons. It
is only in the case of contributory
negligence that the injured himself has
contributed by his negligence in the
accident. Extent of his negligence is
required to be determined as damages
recoverable by him in respect of the
injuries have to be reduced in proportion to
his contributory negligence. The relevant
portion is extracted hereunder :

"6. 'Composite negligence' refers
to the negligence on the part of two or more
persons. Where a person is injured as a
result of negligence on the part of two or
more wrong doers, it is said that the person
was injured on account of the composite
negligence of those wrong-doers. In such a
case, each wrong doer, is jointly and
severally liable to the injured for payment
of the entire damages and the injured
person has the choice of proceeding
against all or any of them. In such a case,
the injured need not establish the extent of
responsibility
of
each
wrong-doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong-doer separately. On the other hand
where a person suffers injury, partly due to
the negligence on the part of another
person or persons, and partly as a result of
his own negligence, then the negligence of
the part of the injured which contributed to
the
accident
is
referred
to
as his
contributory negligence. Where the injured
is guilty of some negligence, his claim for
damages is not defeated merely by reason
of the negligence on his part but the
damages recoverable by him in respect of
the injuries stands reduced in proportion to
his contributory negligence.

7. Therefore, when two vehicles
are involved in an accident, and one of the
5 All. Panchratni & Ors. Vs. Smt. Manju Singh & Ors.
315
drivers claims compensation from the other
driver alleging negligence, and the other
driver denies negligence or claims that the
injured claimant himself was negligent,
then it becomes necessary to consider
whether the injured claimant was negligent
and if so, whether he was solely or partly
responsible for the accident and the extent
of his responsibility, that is his contributory
negligence. Therefore where the injured is
himself partly liable, the principle of
'composite negligence' will not apply nor
can there be an automatic inference that
the negligence was 50:50 as has been
assumed in this case. The Tribunal ought to
have examined the extent of contributory
negligence of the appellant and thereby
avoided
confusion
between
composite
negligence and contributory negligence.
The High Court has failed to correct the
said error."

14. The recent judgment of the Apex
Court reported in Renu Rani Shrivastava
v. New India Assurance Co. Ltd, AIR 2019
SC 5719 will not permit us to accept the
submission of counsel for the Insurance
company that the Tata Magic driver did not
drive the vehicle in rashly and negligently
manner. The factual data which emerges
that the Tata Magic dashed with the
motorcyclist
causing
injuries
to
the
deceased who succumbed to the said
injuries.

15. As far as issue no.1 is concerned,
it goes to show that vehicle was being
driven rashly and negligently by driven of
Tata Magic. The accident occurred at 9.00
p.m. The vehicle was being driven, as per
the evidence of the witness, rashly and
negligently by the driver of the Tata Magic.
OPW-Balwant Kumar has stepped into the
witness box. As far as issue no.11 is
concerned, the driver Balwant Singh was
arrested on the spot and, therefore, the
vehicles involved is established. The
witnesses also deposed on oath that the
driver of Tata Magic was driving the
vehicle rashly and negligently manner. The
charge sheet was led against the driver of
the Tata Magic and, therefore, the site plan
also goes to show that the motorcyclist was
driving the motorcycle on his correct side
and the accident occurred solely due to the
negligence of the driver of the Tata Magic.

16. As far as liability is concerned, the
issue nos. 2 and 3 categorically establish
that the vehicle was insured with the
insurance company nothing has been
proved to buttress the submission that the
vehicle was not insured and that there was
breach of policy condition. The driver had
valid driving licence. The vehicle was
insured from 30.7.2010 to 29.07.2011, no
evidence is led. Hence, the submission
made herein will not permit us to take a
different view that then taken by the
tribunal, just because a driver of Tata
Magic was not made a party.

17. Driver of the Tata Magic in his
cross examination and in his oral testimony
has denied the fact that vehicle being
involved in the accident. The F.I.R.,
Panchnama, charge sheet, post mortem
report, site plan and the release order of
Tata Magic will not permit us to accept the
submission of counsel that negligence was
of driver of motorcycle and vehicle was not
insured, nor involved in accident.

Compensation:-

18. Having heard learned counsel for
the parties and considered the factual data,
this Court finds that the accident occurred
on 13.08.2010 causing death of Subhash
Chandra Sharma who was 42 years of age
and left behind him, wife and five children.
316 INDIAN LAW REPORTS ALLAHABAD SERIES
The Tribunal has assessed the income of
the deceased to be Rs.3,000/- per month.
The deceased was a head master, the
documentary evidence at exhibit 45 is
produced. The tribunal has brushed aside
the said document on basis that it is not a
public document and cannot be taken in
evidence and hence considers the income
of deceased as that of a labourer and
decides that the deceased can be said to be
getting Rs.100/- which is equated to
labourer even in 2010 the minimum wages
were not Rs.100/- per day. The document
may not be public document if the tribunal
had doubt in could invoke procedure under
Section 169 of Motor Vehicles Act, 1988
and could suo moto summoned the officer
who had issued the certificate but without
any
rebuttal
evidence by
owner
or
insurance
company
could
not
have
discarded the document and decided that
deceased who was a person in vocation was
equated with labourer. The tribunal has
relied on the certificate for deciding age of
deceased but income discards the same this
could not have been done. The tribunal has
not discussed why future loss is not granted
despite the law as to the same was
crystallised by Apex Court in General
Manager, Kerala State Road Transport
Corporation, Trivandrum Vs. Susamma
Thomas and others, AIR 1994 SC 1631.
The tribunal has committed grave error in
not considering that the appellants had
proved the income of the deceased by
leading oral evidence. The Tribunal has
held that deceased may be earning
Rs.3000/- p.m.. This is again fallacious as
the evidence on record is there. The
contention of insurance company that
claimants failed to substantiate income of
the deceased without proving the same by
leading oral evidence and Tribunal has to
take notional income of the deceased. The
evidence of the witnesses has not been
accepted which is against the mandate of
the Apex Court in (a) Vimla Devi and
others Vs. National Insurance Company
Limited and another, (2019) 2 SCC 186
and (b) in Anita Sharma v. New India
Assurance Co. Ltd. (2021), 1 SCC 171
which would also apply to the facts of this
case.

19. The income of deceased has to be
considered to be Rs.27,000/- per month,
would be the income of the deceased. The
deceased was in age bracket of 40 to 50
years was having a permanent job, hence
30% of the income will have to be added as
future prospects.

20. In this backdrop we evaluate the
income in view of the judgment of
National Insurance Company Limited
Vs. Pranay Sethi and Others, 2017 0
Supreme (SC) 1050 and Sarla Verma Vs.
Delhi Transport Corporation, (2009) 6
SCC 121 and, the recalculation of
compensation would be as follows:

i. Income Rs.27,000 - Rs.2000 =
Rs.25,000/- p.m. (Income tax and other
deductable lump sum amount)

ii. Percentage towards future
prospects : 30% namely Rs.7500/-

iii. Total income : Rs. 25000 +
Rs.7500= Rs.32,500/-

iv. Income after deduction of 1/4 :
Rs.24,375/-

v. Annual income : Rs. 24,375 x
12 = Rs.2,92,500/-

vi. Multiplier applicable : 14 (as
the deceased was in the age bracket of 4145 years)

vii. Loss of dependency: Rs.
2,92,500 x 14 = Rs.40,95,000/-

viii. Amount under non pecuniary
heads (Rs.70,000+30,000) = 1,00,000/-
5 All. Panchratni & Ors. Vs. Smt. Manju Singh & Ors.
317

ix.
Total
compensation
:
Rs.41,95,000/-.

21. The principles of C.P. Code
Evidence Act are not to be strictly followed
by the tribunal which has been done by the
tribunal excepting the validity of the
licence. It is not proved that the vehicle did
not have illness certificate.

22. 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."

23. 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 6 (SC), 442, the order of investment is
not passed because applicants /claimants are
neither illiterate or rustic villagers.

24. 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
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.

25.

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

26. The appeal of the Insurance
Company is dismissed.

27. In view of the above, the appeal of
the claimants is partly allowed. Award 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
318 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

28. 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.

29. We are thankful to learned
counsels for the parties for ably assisting
the Court.

30. Record be sent back to court
below forthwith, if any.
----------

(2022)05ILR A318
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2022

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

First Appeal From Order No. 2427 of 2010

Shyamu & Ors. ...Appellants
Versus
Rashid Ahamad & Ors. ...Respondents

Counsel for the Appellants:
Sri Sanjay Singh, Sri Amrendra Nath Rai

Counsel for the Resondents:
Sri Ajai Singh

A. Civil Law - Motor Accident Act, 1988 -
Section 166(2) - Territorial jurisdiction -
Office of the Insurance Co. is situated at
District Shahjahanpur and the Co. has its
business at Shahjahanpur - Held, the
Tribunal
at
Shahjahanpur
had
the
jurisdiction to entertain the claim petition.
The Tribunal has clearly erred in holding
that
the
claim
petition
was
not
maintainable in Shahjahanpur - Malati
Sardar's case of Supreme Court relied
upon. (Para 14 and 16)

B. Motor Accident Claim - Determination
of compensation - Notional income -
Deceased was working as household help
- No documentary proof of income of
deceased produced - Held, it would be
just
and
proper
to
determine
compensation on the notional income of
the
deceased
which
would
be
the
minimum wages payable to a daily wager
in 2004, i.e., at the rate of Rs. 100/- per
day or Rs. 3,000/- per month - J.K.
Trivedi's case relied upon - High Court
computed the compensation by adding
40%
future
prospect
and
applying
multiplier of 16 and further adding Rs.
40,000 as towards the loss of spousal
consortium and parental consortium - 7%
rate of interest was also awarded. (Para
21, 22, 24, 26, 27 and 28)
Appeal allowed (E-1)
List of Cases cited:-
1. Mantoo Sarkar Vs Oriental Insurance Co. Ltd.;
2009(2) SCC 244
2. Malati Sardar Vs National Insurance Co. Ltd.
& ors. 2016 (3) SCC 43
3. Jitendra Khimshankar Trivedi Vs Kasam Daud
Kumbhar & ors. 2015 (4) SCC 237
4. Sarla Verma (Smt) & Others Vs Delhi
Transport Corp. & anr.; 2009 (6) SCC 121
5. National Insurance Co. Ltd. Vs Pranay Sethi &
ors. (2017) 16 SCC 680
6. Magma General Insurance Co. Ltd. Vs Nanu
Ram, (2018) SCC OnLine SC 1546