# Pankaj Srivastava And Ors v. The New India Insurance Company Ltd. &Ors

- **Citation:** (2019) 1 ILRA 624
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-03
- **Case number:** F.A.F.O. No. 261 of 2015
- **Bench:** Anil Kumar Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-srivastava-and-ors-v-the-new-india-insurance-company-ltd-ors-44531
- **Pages:** 7

## Headnote

Sri Anurodh Kumar Srivastava, Sri Babu
Ram Shukla, Sri Harpal Singh Chadha, Sri
Manish Misra

A.
First
Appeal
From
Order-
Enhancement of compensation awarded
by Motor Accident Claims Tribunal-
accident due to rash and negligent
driving of truck driver. Claimant's wife a
primary
schoolteacher-identity
card
reflects her basic pay-Tribunal ignored
the entries made in Passbook regarding
her actual pay.

It is settled law that the basis pay would not
be counted for the purposes ofgrant of
compensation and salary at hand has to be
taken note of for granting compensation under
the Motor Vehicle Act.

B. Additional Evidence - Application to
file additional evidence- salary certificate
issued
by
Block
Education
Officer,
Certificate
for
information
of
tax
deduction at source under Section 203 of
the Income Tax Act, 1961- application
allowed-
matter
remanded
to
the
Tribunal

Chronological List of Cases Cited: -

1.1964 (2) SCR 35 K. Venkataramiah Vs. A.
Seetharama Reddy &Ors.

2.1955 (2) SCR 1 Sangram Singh Vs. Election
Tribunal

3.(2018) 9 SCC 445 Corporation of Madras and
another Vs. M. Parthasarathy and others

4.2009 (2) T.A.C. 677 (S.C.) Smt. Sarla Verma
and others Vs. Delhi Transport Corporation and
another

5.(2017) 4 TAC 673(SC) National Insurance
Co. Ltd. Vs. Pranay Sethi

6.2018 SCC Online SC 1546 Magma General
InsuranceCo. Ltd. Vs. Nanu Ram

7.(2013) 1 SCC 731 National Insurance Co.
Ltd. Vs. Balakrishnan (E-10)

## Text

624 INDIAN LAW REPORTS ALLAHABAD SERIES

53. Lower Court record alongwith a
copy of this judgment be sent back
immediately to District Court concerned
for compliance and further necessary
action and to apprise the accusedappellant through Jail Authority.

54. Before parting we provide that
Sri Abida Syed, learned Amicus Curiae
for appellant who assisted the Court very
diligently, shall be paid counsel's fee as
Rs.
10,000/-.
State
Government
is
directed to ensure payment of aforesaid
fee
through
Additional
Legal
Remembrancer posted in the office of
Advocate General at Allahabad, to him
without any delay and, in any case, within
one month from the date of receipt of
copy of this judgment.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.09.2019

BEFORE
THE HON'BLE ANIL KUMAR
THE HON'BLE SAURABH LAVANIA, J.

F.A.F.O. No. 261 of 2015

Pankaj Srivastava And Ors. ...Appellants
Versus
The New India Insurance Company Ltd.
&Ors. ...Respondents

Counsel for the Appellants:
Sri Sanjay Tripathi

Counsel for the Respondents:
Sri Anurodh Kumar Srivastava, Sri Babu
Ram Shukla, Sri Harpal Singh Chadha, Sri
Manish Misra

A.
First
Appeal
From
Order-
Enhancement of compensation awarded
by Motor Accident Claims Tribunal-
accident due to rash and negligent
driving of truck driver. Claimant's wife a
primary
schoolteacher-identity
card
reflects her basic pay-Tribunal ignored
the entries made in Passbook regarding
her actual pay.

It is settled law that the basis pay would not
be counted for the purposes ofgrant of
compensation and salary at hand has to be
taken note of for granting compensation under
the Motor Vehicle Act.

B. Additional Evidence - Application to
file additional evidence- salary certificate
issued
by
Block
Education
Officer,
Certificate
for
information
of
tax
deduction at source under Section 203 of
the Income Tax Act, 1961- application
allowed-
matter
remanded
to
the
Tribunal

Chronological List of Cases Cited: -

1.1964 (2) SCR 35 K. Venkataramiah Vs. A.
Seetharama Reddy &Ors.

2.1955 (2) SCR 1 Sangram Singh Vs. Election
Tribunal

3.(2018) 9 SCC 445 Corporation of Madras and
another Vs. M. Parthasarathy and others

4.2009 (2) T.A.C. 677 (S.C.) Smt. Sarla Verma
and others Vs. Delhi Transport Corporation and
another

5.(2017) 4 TAC 673(SC) National Insurance
Co. Ltd. Vs. Pranay Sethi

6.2018 SCC Online SC 1546 Magma General
InsuranceCo. Ltd. Vs. Nanu Ram

7.(2013) 1 SCC 731 National Insurance Co.
Ltd. Vs. Balakrishnan (E-10)
(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Sanjay Tripathi, learned
counsel for the appellants and Sri Harpal
Singh Chadha, learned counsel for the
Insurance
Company.
1 All. Pankaj Srivastava And Ors. Vs. The New India Insurance Company Ltd. & Ors.
625

2. Under appeal is the judgment and
award dated 23.02.2015, passed by the
Motor
Accidents
Tribunal/Additional
District Judge, Court No. 10, Lucknow (in
short "Tribunal") in the Claim Petition
No. 0000638/12 (Pankaj Srivastava and
others v. New India Insurance Company
Ltd. and others).

3. The present appeal has been filed
by
the
claimants-appellants
for
enhancement of compensation awarded
by the Tribunal vide judgment and award
dated 23.02.2015.

4. The facts, in brief, of the present
case are that on 03.01.2012, the wife of
the appellant No. 1 namely Smt. Sonali
Srivastava, when she was going by her
Scooty bearing No. U.P.-32D.J.-8842 to
discharge her duties as a Teacher in the
Primary School at Kamlapur, met with an
accident at Roshnabad Yadav Crossing,
P.S.- Madiyaon, District- Lucknow with
the Truck bearing No. U.P.-84T-0911. It
was due to rash and careless driving of the
Truck driver. On account of the accident,
the wife of the appellant No. 1 namely
Smt. Sonali Srivastava expired on spot.
Thereafter, an FIR was lodged in regard
to the incident at P.S. Madiyaon,
Lucknow and post-mortem was also
carried out on 03.01.2012. The claimantsappellants filed the claim petition before
the Tribunal. In support of the Claim
Petition, several documents (documentary
evidence) including the photocopy of the
Bank Passbook i.e. paper no. C-14/3,
Identity Card i.e. paper no. C-14/8, of the
deceased Smt. Sonali Srivastava, which
are part and parcel of the lower court
record, were also filed.

5. A perusal of the Identity Card
issued by the Basic Shiksha Parishad,
Lucknow, reveals that the deceased Smt.
Sonali Srivastava was the Assistant
Teacher in the Primary School at
Kamlapur. The Identity Card also reflects
the basic pay of the deceased i.e. Rs.
5375/-. It is also evident from the copy of
the Passbook, which is part and parcel of
the lower Court record bearing paper no.
C-14/5 that the deceased Smt. Sonali
Srivastava was getting Rs. 25,385/- per
month towards salary in hand.

6. The Tribunal for the purposes of
deciding the claim petition, framed the
following issues:-

"i{kdkjksa ds vfHkopuksa ds vk/kkj ij
fuEufyf[kr fook|d fnukad 31-7-13 dks fojfpr
fd;s x;s&

1- D;k fn0 03-01-2012 dks le;
lqcg djhc 9-45 cts o LFkku jks'kukckn ;kno
pkSjkgs ds ikl Fkkuk efM;kao tuin] tuin
y[kuÅ ij ;kph la0&1 dh iRuh ;kph la0&2
o 3 dh eka Jherh lksukyh JhokLro dh Vad
la[;k& ;w0ih084&Vh&0911 }kjk mldh e`R;q gks
x;h\

2- D;k mijksDr nq?kZVuk okgu pkyd
}kjk Vad ykijokgh o mis{kkiw.kZ

4- D;k iz'uxr okgu chek 'krksZa ds
vuq:i ugha pyk;k tk jgk Fkk\

5-
D;k
iz'uxr
okgu
Vad
la[;k&;w0ih084&Vh&0911 ?kVuk dh frfFk ij
foi+{kh fn U;w bf.M;k ba';ksjsal dEiuh fy0 }kjk
chfer Fkh\

6- D;k e`rdk nq?kZVuk esa Lo;a
ykijokg Fkh\

7- ;kphx.k vius }kjk okafNr izfrdj
izkIr djus ds vf/kdkjh gS] ;fn gka rks fdruk\

8- D;k vU; dksbZ vuqrks"k izkIr djus
ds vf/kdkjh gS\"

7. The issue Nos. 1, 2 and 6 relate to
place, time of incident and negligence of the
drivers of the vehicles involved in the
accident. The Tribunal, on the basis of the
626 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence, held that Smt. Sonali Srivastava was
not negligent rather the driver of the Truck
bearing No. U.P.-84T-0911 was negligent.
The Tribunal has also held that on 03.01.2012,
Smt. Sonali Srivastava expired due to accident
with Truck bearing No. U.P.-84T-0911 at
Roshnabad Yadav Crossing, P.S.- Madiyaon,
District- Lucknow at about 9:45 A.M.

8. The issue Nos. 3 and 4 relate to
valid driving licence of the driver of the
Truck namely Sri Harimohan and the
fulfillment of terms and conditions of the
Insurance Policy of the vehicle i.e. Truck.
The Tribunal while deciding the issue Nos. 3
and 4 held that the driving licence of the
Truck driver namely Sri Harimohan was
valid but he failed to follow the terms and
conditions of the Insurance Policy, as he was
driving the Truck rashly and negligently.

9. The Tribunal while deciding the
issue No. 5 held that the Truck bearing
No. U.P.-84T-0911, of which the driver
was Sri Harimohan, was insured with
New India Insurance Company Ltd.,
Barpur (बड़पुर), District- Farrukhabad.

10. The Issue Nos. 7 and 8 were
decided together by the Tribunal. The
issue Nos. 7 and 8 relate to award of
compensation and any other relief to
which
the
appellants/claimants
are
entitled. While deciding the issue Nos. 7
and 8, the Tribunal took note of the basic
pay i.e. Rs. 5375/- per month of the
deceased namely Smt. Sonali Srivastava
and accordingly, made the calculation and
awarded the compensation to the tune of
Rs. 3,46,000/- along with the interest @
7% per annum.

11. In the light of the above
said brief facts, the present appeal has
been filed by the appellants/claimants for
enhancement of compensation awarded
by the Tribunal vide the judgment and
award dated 23.02.2015.

12. During the pendency of the
present appeal, the appellants moved an
application dated 08.01.2019 along with
the affidavit for permission to file
additional evidence on record. The
additional evidence filed by the appellants
through the application is the salary
certificate issued by the Block Education
Officer, Chinhat, Lucknow and Form-16,
a certificate for information of tax
deducted at source under Section 203 of
the Income Tax Act, 1961, for the period
commencing from 01.04.2009-31.03.2010
and Assessment Year 2010-2011. After
moving the application for permission to
file additional evidence, this Court after
considering the facts of the case, passed
the following order on 31.01.2019: -

"Heard Sri Sanjay Tripathi,
learned counsel for the appellants as well
as counsel for the New India Insurance
Company Ltd.

Additional evidence has been
filed before this Court by way of
application dated 8.1.2019 by counsel for
the
appellants,
who
submitted
two
documents; the first one is salary
certificate issued by Khand Shiksha
Adhikari, Chinhat, Lucknow wherein it
has been verified that Smt. Sonali
Srivastava, Assistant Teacher, Primary
School
Kamlapur,
Region
Chinhat,
District Lucknow was a permanent
Teacher, who died on 3.1.2012 and was
being paid total salary of Rs.27612/- and
after other deductions of Rs.1867/- she
was drawing net salary of Rs.25745/- per
month. The other document annexed with
1 All. Pankaj Srivastava And Ors. Vs. The New India Insurance Company Ltd. & Ors.
627
the application is copy of income tax
return form 16.

Learned counsel for the respondent-
company is at liberty to verify these documents
at his own end. At the same time, considering
the urgency of the case we direct Sri Manish
Mishra, learned counsel for District Basic
Education Officer, Lucknow, who is present
before the Court, to get these two documents
verified from the Basic Education Officer,
Lucknow and give his verification report.

Counsel for the appellants will be
required to give a copy of the application
to Sri Manish Mishra.

The objection filed by the
respondent-company to the application
for permission to file additional evidence
is taken on record.

List this case after two weeks
showing the name of Sri Manish Mishra
as a counsel. "

13. In compliance of the order of
this Court dated 31.01.2019, an affidavit
was filed by Dr. Amar Kant Singh,
District
Basic
Education
Officer,
Lucknow and the perusal thereof would
show that the salary of the deceased
namely
Smt.
Sonali
Srivastava
immediately prior to her death was Rs.
25,745/- per mensem.

14. Learned counsel for the
appellants/claimants for the purposes of
enhancement of the amount awarded by
the Tribunal submitted that the Tribunal
completely ignored the salary in hand of
the
deceased
namely
Smt.
Sonali
Srivastava i.e. Rs. 25,385/- per month and
in support thereof, the photocopy of the
Passbook of the deceased namely Smt.
Sonali Srivastava was filed, wherein the
salary of the Month of November, 2011
has been specifically mentioned.

15. On the basis of the entry
made in the Passbook, which is paper no.
C-14/5 of the lower court record and has
also been mentioned in the judgment,
under appeal, the counsel for the appellant
further submitted that the Tribunal erred
in not taking/considering the entry in the
Passbook and accordingly, the award so
far as it relates to award of compensation
on the basis of the basic pay of the
deceased namely Smt. Sonali Srivastava
i.e. Rs. 5375/-, is liable to the modified
and amount awarded by the Tribunal is
liable to be enhanced.

16. The learned counsel for the
appellants on the basis of the additional
documents filed in the appeal and the
affidavit of Dr. Amar Kant Singh, District
Basic Education Officer, submitted that the
amount awarded by the Tribunal is liable to
be enhanced keeping in view the salary of
the deceased at the time of accident.

17. Per contra, learned counsel for the
contesting respondents-Insurance Company
Sri Harpal Singh Chadda submitted that the
Tribunal has not erred in granting the
compensation. He further submitted that the
Tribunal has granted the compensation
keeping in view the basic pay of the deceased
namely Smt. Sonali Srivastava mentioned in
the Identity Card issued by the Basic Shiksha
Parishad, Lucknow, according to which, the
basic pay of the deceased was Rs. 5375/-.

18. Learned counsel for the
respondents further submitted that before
the Tribunal, the appellants/claimants
failed to place on record the salary
certificate of the deceased and other
documents which were required for
proving the monthly salary of the
deceased namely Smt. Sonali Srivastava
and the Tribunal has rightly awarded the
628 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation on the basis of the material
evidence on record.

19. We have considered the rival
submissions of the respective parties and
gone through the record including the
lower court record carefully.

20. The present appeal is only with
regard
to
the
enhancement
of
compensation and as such, we are only
considering the decision on the issue Nos.
7 and 8 in the light of the facts and
reasons mentioned hereinabove as well as
the documents referred hereinabove.

21. A perusal of the decision on the
issue Nos. 7 and 8 shows that the Tribunal
only considered the Identity Card of the
deceased namely Smt. Sonali Srivastava,
which is paper no. C-14/8 of the lower
Court record, in which the basic pay of
the deceased is Rs. 5375/- per month. The
Tribunal did not consider the paper no. C14/3 and C-14/5 which are also on record
i.e. the photocopies of the Bank Passbook,
in which the salary of the deceased
namely
Smt.
Sonali
Srivastava
is
mentioned as Rs. 25,385/- of the month of
November, 2011.

22. The amount mentioned in the
Passbook was required to be considered
by the Tribunal while awarding the
compensation, as it is settled law that the
basic pay would not be counted for the
purposes of grant of compensation and the
amount i.e. the salary in hand has to be
taken
note
of
by
the
Court
concerned/Tribunal for granting/awarding
the
compensation
under
the
Motor
Vehicles Act. The appellants/claimants
have also placed on record the salary
certificate and the Form-16 i.e. TDS for
the assessment year 2010-11, which also
reflects that salary in hand of the deceased
namely Smt. Sonali Srivastava was much
more than that considered by the
Tribunal.

23. In view of the above, we are of
the opinion that the amount awarded by
the Tribunal, keeping in view the basic
pay/salary of the deceased namely Smt.
Sonali Srivastava, is neither proper nor
justified.

24. The documents placed by the
appellants along with the application for
taking additional evidence on record also
requires consideration.

25. The application for seeking
permission to produce additional evidence
in Appellate Court can be allowed in the
circumstances enumerated under Order 47
Rule 27 of C.P.C. Mode of taking
additional evidence on record is provided
under Order 41 Rule 28.

26. In the case of K. Venkataramiah
vs. A. Seetharama Reddy &Ors., 1964 (2)
SCR 35, considering the Order 41 Rule
27, the Apex Court observed as under:-

"... Apart from this, it is well to
remember that the appellate court has the
power to allow additional evidence not
only if it requires such evidence "to
enable it to pronounce judgment" but also
for "any other substantial cause". There
may well be cases where even though the
court finds that it is able to pronounce
judgment on the state of the record as it
is, and so, it cannot strictly say that it
requires additional evidence "to enable it
to pronounce judgment," it still considers
that in the interest of justice something
which remains obscure should be filled up
so that it can pronounce its judgment in a
1 All. Pankaj Srivastava And Ors. Vs. The New India Insurance Company Ltd. & Ors.
629
more satisfactory manner. Such a case
will be one for allowing additional
evidence "for any other substantial cause"
under Rule 27(1)(b) of the Code. "

27. In the case of Sangram Singh vs.
Election Tribunal, Kotah, Bhurey Lal
Baya, 1955 (2) SCR 1 (at page 8),
considering the Order 41 Rule 27, the
Apex Court observed as under:-

"Now a code of procedure must
be regarded as such. It is procedure,
something designed to facilitate justice
and further its ends: not a penal
enactment for punishment and penalties;
not a thing designed to trip people up.
Too technical a construction of sections
that leaves no room for reasonable
elasticity
of
interpretation
should
therefore be guarded against (provided
always that justice is done to both sides)
lest the very means designed for the
furtherance of justice be used to frustrate
it."

28. In the case of Corporation of
Madras and another v. M. Parthasarathy
and
others;
(2018)
9
SCC
445,
considering the Order 41 Rule 27, the
Apex Court observed as under:-

"13. First, it took into consideration
the additional piece of evidence while
deciding the appeals on merits without
affording
any
opportunity
to
the
appellants herein (who were respondents
in the first appeals) to file any rebuttal
evidence
to
counter
the
additional
evidence adduced by the respondents
(appellants before the first appellate
court). This caused prejudice to the
appellants herein because they suffered
the adverse order from the appellate court
on the basis of additional evidence
adduced by the respondents for the first
time in appeal against them. (See LAO v.
H. Narayanaiah [LAO v. H. Narayanaiah,
(1976) 4 SCC 9] , Shalimar Chemical
Works Ltd. v. Surendra Oil & Dal Mills
[Shalimar
Chemical
Works
Ltd.
v.
Surendra Oil & Dal Mills, (2010) 8 SCC
423 : (2010) 3 SCC (Civ) 392] and
Akhilesh Singh v. Lal Babu Singh
[Akhilesh Singh v. Lal Babu Singh, (2018)
4 SCC 659 : (2018) 3 SCC (Civ) 131] .)"

29. Looking into the facts and
circumstances of the case, the order dated
30.01.2019 passed by this Court, quoted
above, the view expressed by the Apex
Court in relation to dealing with the
application under Order 41 Rule 27, in the
judgments referred hereinabove, and the
averments made in the affidavits, referred
hereinabove, as well as in the interest of
substantial justice, we hereby allow the
application for production of additional
evidence
on
record
filed
by
the
appellants/claimants.

30. Considering the facts of the case,
provisions envisaged in the Order 41 Rule
28 of C.P.C. and observations of the Apex
Court in the case of Corporation of
Madras (supra), we are of the view that
the matter may be remanded back to the
Tribunal for decision on the issue Nos. 7
and 8 after taking evidence, as per Law,
of the parties to the litigation.

31. While deciding the issue Nos. 3
and 7, the Tribunal/Trial Court would also
consider the principles settled by the
Hon'ble Apex Court in the case of Smt.
Sarla Verma and others. v. Delhi
Transport Corporation and another;
2009 (2) T.A.C. 677 (S.C.) and National
Insurance Co. Ltd vs Pranay Sethi
reported in (2017) 4 TAC 673 (SC) as
630 INDIAN LAW REPORTS ALLAHABAD SERIES
well as in the case of Magma General
Insurance Co. Ltd. v. Nanu Ram
reported in 2018 SCC Online SC 1546,
wherein the Apex Court has settled the
relevant issues related to grant/award of
compensation under the Motor Vehicles
Act, which includes the proper deduction,
multiplier and amount to be awarded
towards conventional heads.

32. The aforesaid observation has
been made keeping in view the findings
recorded by the Tribunal on the issue Nos.
7 and 8 and the operative portion of the
judgment and award dated 23.02.2015.

33. For the foregoing reasons, the
appeal is allowed. The matter is remanded
back to the Tribunal for afresh decision, as
per Law and observations made hereinabove,
on the issue Nos. 7 and 8. Fresh decision on
the issue Nos. 7 and 8 would substitute the
findings and conclusion of the award dated
23.02.2015. As far as other findings recorded
by the Tribunal are concerned, they remain
undisturbed. This has been provided keeping
in view the principle of speedy disposal of
the case.

34. The aforesaid view of this court
finds support from the observations made
by the Hon'ble Apex Court in para 28 of
the judgment in the case ofNational
Insurance Co. Ltd. v. Balakrishnan,
(2013) 1 SCC 731 : (2013) 1 SCC (Civ)
771 : (2013) 1 SCC (Cri) 677 : 2012
SCC OnLine SC 939, the same reads as
under:-

"28.
In
view
of
the
aforesaid analysis, we think it apposite to
set aside the finding of the High Court
and the Tribunal as regards the liability
of the insurer and remit the matter to the
Tribunal to scrutinise the policy in a
proper perspective and, if necessary, by
taking additional evidence and if the
conclusion is arrived at that the policy in
question is a "comprehensive/package
policy", the liability would be fastened on
the insurer. As far as other findings
recorded by the Tribunal and affirmed by
the High Court are concerned, they
remain undisturbed."

35. It is provided that for fresh decision
on issue Nos. 7 and 8, the learned Court
below/Tribunal would provide reasonable
opportunity of hearing to the respondents by
permitting them to file additional Written
Statement and additional evidence in rebuttal
to the additional evidence filed by the
appellants/claimants before this Court, if they
choose.

36. The parties would appear before
the Tribunal on 23/September/2019.

37. Office is directed to send the
lower court record to the Motor Vehicle
Accidents Tribunal/Additional District
Judge, Court No. 10, Lucknow.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2018

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHASHI KANT, J.

F.A.F.O. No. 1133 of 2017

M/s Kapila Krishi Udyog Ltd. ...Appellant
Versus
M/s Kamdhenu Cattle Feeds Pvt. Ltd.
 ...Respondent

Counsel for the Appellant:
Sri Kartikeya Saran

Counsel
for
the
Respondents: