# Parth @ Pratham v. New India Insurance Co. Ltd. & Ors

- **Citation:** (2022) 5 ILRA 825
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-04
- **Case number:** First Appeal From Order No. 3712 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parth-pratham-v-new-india-insurance-co-ltd-ors-48595
- **Pages:** 6

## Headnote

A. Civil Law - Motor Accident Act, 1988 -
UP Motor Vehicle Rules, 1998 - Rule 220 -
Compensation - Death of salaried person
- Entitlement of future loss - Held, where
deceased was salaried person, future loss
of income must be added - High Court recomputed the compensation by adding
50%
future
prospect
and
applying
multiplier of 15. (Para 8 and 13)

B. Motor Accident Claim - Share in
compensation - Hindu law or personal law
- Applicability - Sole minor survive the
deceased - Minor's right of getting the
compensation - Tribunal granted 1/6 of
the compensation to be paid to the minor
- Validity challenged - Held, claim case is
not
a
partition
suit.
The
legal
representative/legal
heir
would
be
entitled to the compensation for the
tortious act of the driver for which the
owner would be vicariously liable and the
Insurance Co. would have to indemnity
the third party - The appellant is the sole
surviving legal heir, the compensation has
to be decided as per the provisions of
826 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 166 and not as per Hindu Law or
the personal law, this is error which has
crept in the judgment and award of the
Tribunal - The Tribunal could not have
held that the appellant would be entitled
to only 1/6 of the share. (Para 9)

Appeal partly allowed (E-1)
List of Cases cited:-

## Text

5 All. Parth @ Pratham Vs. New India Insurance Co. Ltd. & Ors.
825
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.

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

23.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein.

24. This Court is thankful to both the
counsels to see that this very old matter is
disposed of.
----------
(2022)05ILR A825
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2022

BEFORE

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

First Appeal From Order No. 3712 of 2017

Parth @ Pratham ...Appellant
Versus
New India Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Devesh Pratap Singh Chauhan, Sri
Pawan Kumar Singh

Counsel for the Respondents:
Sri Rakesh Bahadur

A. Civil Law - Motor Accident Act, 1988 -
UP Motor Vehicle Rules, 1998 - Rule 220 -
Compensation - Death of salaried person
- Entitlement of future loss - Held, where
deceased was salaried person, future loss
of income must be added - High Court recomputed the compensation by adding
50%
future
prospect
and
applying
multiplier of 15. (Para 8 and 13)

B. Motor Accident Claim - Share in
compensation - Hindu law or personal law
- Applicability - Sole minor survive the
deceased - Minor's right of getting the
compensation - Tribunal granted 1/6 of
the compensation to be paid to the minor
- Validity challenged - Held, claim case is
not
a
partition
suit.
The
legal
representative/legal
heir
would
be
entitled to the compensation for the
tortious act of the driver for which the
owner would be vicariously liable and the
Insurance Co. would have to indemnity
the third party - The appellant is the sole
surviving legal heir, the compensation has
to be decided as per the provisions of
826 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 166 and not as per Hindu Law or
the personal law, this is error which has
crept in the judgment and award of the
Tribunal - The Tribunal could not have
held that the appellant would be entitled
to only 1/6 of the share. (Para 9)

Appeal partly allowed (E-1)
List of Cases cited:-
1. Vimla Kanwar Vs St. of Raj. & ors.; 2018 CrLJ
4111
2. Sarla Verma Vs Delhi Transport Corp.; (2009)
6 SCC 121
3. Gobald Motor Service Ltd. & Vs R. M. K.
Veluswami & ors. AIR 1962 SC 1
4. General Manager Kerala State Road Transport
Corp. Trivandrum Vs Susamma Thomas & ors.
1994 (2) SCC 176
5. National Insurance Co.Ltd. Vs Pranay Sethi &
ors., 2017 0 Supreme (SC) 1050
6. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs U.O.I. & ors. decided by Apex Court on
27.1.2022
7. A.V.Padma Vs Venugopal; 2012 (1) GLH (SC)
442
8. Smt. Hansaguri P. Ladhani Vs The Oriental
Insurance Co. Ltd; 2007(2) GLH 291
9. Review Application No. 1 of 2020 in First
Appeal From Order No. 23 of 2001; Smt.
Sudesna & ors. Vs Hari Singh & anr.
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Devesh Pratap Singh
Chauhan, learned counsel appearing for the
appellant and Sri Rakesh Bahadur, learned
counsel
appearing
for
the
Insurance
Company. None is present for the owner.

2. The present appeal has been
preferred against the judgment and award
dated
15.09.2017
passed
by
Motor
Accident
Claims
Tribunal/
Additional
District Judge, Court No.4/ Special Judge,
E.C. Act, Farrukhabad in M.A.C.P. No.36
of 2013 (Parth @ Pratham Vs. New India
Insurance Co. Ltd. granting compensation
of Rs.8,50,960/- with interest at the rate of
6%.

3. A very tragic death of three people of
the family leaving a minor of 10 years child
who
is
only
sole
surviving
legal
representative, who has preferred this appeal.
The award in claim petitions for the
compensation on death of other two have
attained finality. We have no burden on the
judgment of Rajastahan High Court in the
case of Vimla Kanwar Vs. State of
Rajasthan & Ors. 2018 CrLJ 4111 with
unnecessary facts that the accident took place
on 23.06.2011 is not in dispute. Ranveer
Singh (the deceased) was a doctor aged about
36 years and was in government job and his
monthly income was Rs.43,998/- are not in
dispute.

4. Ranveer Singh was a Government
Doctor and was fetching net income of
Rs.43,998/- per month. The learned Tribunal
below had illegally deducted Rs.2,000/- from
the monthly income for the purposes of
calculation of the compensation. As per the
established principles of the law in this
regard, the calculation ought to have been
done on the basis of the net income. He
further submitted that no amount under the
head of future loss of income could have
been granted.

5. It is further contended by learned
counsel for the appellant that the Tribunal has
not considered grounds and committed error
in granting 1/6 of the amount to the claimant
as the claimant is the sole surviving legal heir
of the deceased.

6. Sri Rakesh Bahadur, learned
counsel for the respondent has submitted
5 All. Parth @ Pratham Vs. New India Insurance Co. Ltd. & Ors.
827
that income which has been considered is
just and proper. It is further contended that
the Tribunal has not committed any error in
granting 1/6 of the amount to the claimant
as the claimant is the sole surviving legal
heir of the deceased. It is further submitted
by Sri Rakesh Bahadur that multiplier
granted by the Tribunal is just and proper
and demand of Rs.5/- lacs for loss of love
and affection and Rs.5/- for constrodian
could be granted. It is further submitted by
Sri Rakesh Bahadur, learned counsel for
the respondent that demand of interest at
the 18% is against the rule of U.P. Motor
Vehicle Rules, 1998 (Amended in 2011)
and it is next submitted that repo-rate is
consistently falling, the interest cannot be
more than 7%. It is further submitted that
non-pecuniary damages should be granted
as per the rule (supra).

7. The factum of accident is not in
dispute. The negligence of the truck driver
which has been considered by the Tribunal
is also not in dispute as it is evident from
the record that the driver of the truck was
driving his vehicle rashly and negligently
came on the wrong side and dashed with
the car driven by the father of the appellant
who along with his wife and his son died
on the spot, hence, the same issue has attain
finality. As per the liability of the Insurance
Company is concerned, there is no dispute
that the vehicle was insured and the driver
had proper valid driving licence. The
Insurance Company and the owner has
accepted the finding of facts and they have
attend finality. The liability on Insurance
Company has been accepted by the
Insurance Company.

8. The only question which is left for
our
consideration
is
the
issue
of
compensation.
The
Tribunal
though
considered the judgment of Sarla Verma
Vs. Delhi Transport Corporation, (2009)
6 SCC 121, has not added any amount
towards the head of future loss of income
though the deceased was a doctor and was
in government job which is evident from
the evidence and the discretion of the
Tribunal, and thereafter, even as per the
judgment of Sarla Verma (supra) future
loss of income would be admissible. The
law was very clearly propounded by the
Apex Court In Gobald Motor Service Ltd.
& Vs. R. M. K. Veluswami & Others
AIR 1962 SC 1 and in General Manager
Kerla
State
Road
Transport
Corporation Trivandrum Vs. Susamma
Thomas and others 1994 (2) SCC 176
reiterated in Sarla Verma (supra) that
where deceased was salaried person, future
loss of income must be added. The Rule
220 of The U.P. Motor Vehicle Rules,
1998 (Amended in 2011) have specified
the same, hence, for the same, we will have
to consider the question of future loss of
income and modify the same. We will have
to decide three aspects, (i) whether, the
appellant is entitled to future loss of income
for the death of his father, the appellant has
lost his father at the tender age of 10 year,
(ii) whether, the non-pecuniary damages
granted by Tribunal requires and most
importantly and very strangely the Tribunal
after relying on Rule 220 of the U.P. Motor
Vehicle Rules, 1998 (Amended in 2011),
which stipulated as follows:-

"Rule 220. Judgment and award
of compensation-

(1) The claims Tribunal, in
passing orders, shall record concisely in
judgment the findings on each of the issues
framed and the reasons for such finding
and make an award, specifying the amount
of compensation to be paid by the insurer
or in the case of a vehicle exempted under
828 INDIAN LAW REPORTS ALLAHABAD SERIES
sub-section (2) or (3) of Section 146 by the
owner thereof and shall also specify the
person or persons to whom compensation
shall be payable.

(2)
Where
compensation
is
awarded to two or more persons under subrule (1) the Claims Tribunal shall also
specify the amount payable to each of them.

(3) The Claims Tribunal may,
while
disposing
of
claims
for
compensation, make such orders regarding
costs and expenses incurred in the
proceeding as it thinks fit.

9. Sri Rakesh Bahadur, learned
counsel appearing for the respondent
submitted that there is a rule that a minor
will get 1/6 of the share. The issue is not
share and how much will be given to a
minor. The question before us is that the
minor
is
the
sole
legal
heir/legal
representative to whom the other amount
would be admissible, whether it would go
as corpus for the same only 1/6 cannot be
made available to him as no one else is a
recipient of the amount. This is not a
partition suit. The legal representative/legal
heir would be entitled to the compensation
for the tortious act of the driver for which
the owner would be vicariously liable and
the Insurance Company would have to
indemnity the third party. The appellant is
the
sole
surviving
legal
heir,
the
compensation has to be decided as per the
provisions of Section 166 and not as per
Hindu Law or the personal law, this is error
which has crept in the judgment and award
of the Tribunal. The Tribunal could not
have held that the appellant would be
entitled to only 1/6 of the share. Learned
counsel for the respondent could not
satisfies that the said finding requires to be
upheld. Once is proved that he is the only
legal surviving heir, the entire corpus
would go to him.

10. The counsel for the appellant
contended that interest 18% should be
granted. It is submitted by Sri Rakesh
Bahadur,
learned
counsel
for
the
respondent that the repo-rates have gone
down, hence rate of interest 18% cannot be
granted. The Rule 220 of the U.P. Motor
Vehicle Rules, 1988 (Amended in 2011)
specifies that interest would be at the rate
of 7%.

11. Having considered the rival
submission of both the learned Advocates
as far as interest is concerned, we would
have to consider the provisions of Section
171 of the Motor Vehicle Act, 1980 enjoy
the duty on the Tribunal to grant interest
for delay in payment. In this case, the
litigation was pending since 2013. The
accident took place on 23.06.2011, no
reasons are assigned why the conditional
rate of interest is granted. As the matter has
been
conciliated
on
the
basis
of
compensation on the ground of admissible
compensation, we deem it fit to grant
interest at the rate of 6% and deprecate the
practice of granting such conditional
interest which has been deprecated by the
Apex Court also. The rate of interest would
be 6% from the filing of the claim petition
till the amount is deposited.

12. We are in agreement with the
submission made by Sri Rakesh Bahadur
that The amount which would be
admissible Rs.43998/- as granted by the
Tribunal + 50% as the deceased was 36
years of age and a salaried person,
multiplier granted 15 is just and proper as
per the judgment of the Apex Court in
National Insurance Company Limited
Vs. Pranay Sethi and Others, 2017 0
5 All. Parth @ Pratham Vs. New India Insurance Co. Ltd. & Ors.
829
Supreme (SC) 1050, we cannot accept
the submission of learned counsel for the
appellant and Rs.5/- lacs will have to be
awarded for loss of love and affection
and Rs.5/- lacs for consortium. Three
persons who are dependent on him,
hence, 1/3 will have to be deducted which
also has not been done by the Tribunal. It
would be Rs.50,000/- for the minor child
for loss of love and affection who lost his
father and mother at the prime age.
Rs.50,000/- would be granted for funeral
charges for parents. The amount under
the
non-pecuniary
head
would
be
Rs.50,000/-.

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

i. Monthly Income: Rs.43,998/-

ii. Percentage towards future
prospects : 50% namely Rs.21999/-

iii. Total income : Rs.43,999/-
+21,999/- = Rs.65,997/-

iv. Income after deduction of
1/3rd
towards
personal
expenses
:
Rs.43,998/-

v. Annual income : Rs.43,998/- x
12 = Rs.5,27,976/-

vi. Multiplier applicable : 15

vii.
Loss
of
dependency:
Rs.5,27,976/- x 15 = Rs.79,19,640/-

viii. Amount under all non
pecuniary heads: Rs.1,50,000/- =

ix.
Total
compensation:
Rs.80,69,640/-.

14. In view of the above, the appeal is
partly allowed. Judgment and award passed
by the Tribunal shall stand modified to the
aforesaid extent. The respondent-Insurance
Company shall deposit the additional
amount within a period of 12 weeks from
today with interest at the rate of 6% 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.

15. The young boy would have now
become major as the accident took place on
23.06.2011 if he shows cogent evidence
that he is capable of handling the money
50% may be released for his further
studies. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private 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. The
amount be deposited in the Saving Account
of claimants in Nationalized Bank without
F.D.R., 50% would be deposited for
coming five years.

16. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of
investment be passed by Tribunal.

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

18.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.

19. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj Allianz General Insurance Company
Private 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. As 10 years
have elapsed, the amount be deposited in
the Saving Account of claimants in
Nationalized Bank without F.D.R.

20. A copy of this judgment be
circulated so that the Tribunals in future
may not commit such mistake. A copy of
this order be sent to Balveer Singh also for
his guidance.

21. The record and proceedings, if
any, be transmitted to the Tribunal
forthwith.

22. This Court is thankful to both the
advocates for ably assisting the Court.
----------
(2022)05ILR A830
APPELLATE JURISDICTION
CIVIL SIDE 07.03.2022

BEFORE

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

First Appeal From Order No. 3750 of 2009
With
First Appeal From Order No. 299 of 2010

Anoop Maheshwari ...Appellant
Versus
Shiv Kumar Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Satya Deo Ojha, Sri Achintya Kumar, Sri
Komal Mehrotra, Sri Arvind Srivastava

Counsel for the Respondents:
Sri Anand Kumar Sinha

A. Civil Law - Motor Accident Act, 1988 -
Sections 2(21) & 147 - Claim - Breach of
policy - Whether driver possessed proper
driving licence or not - Nature of vehicle -
Determination
-
Vehicle
was
having
unladen weight of 6200 Kg, which is less
than 7500 Kg - Held, though it is termed
as a truck, but is Light Motor Vehicle -
Held further, vehicle was being driven by
a person authorised to drive it. (Para 20
and 22)

B. Civil Law - UP Motor Vehicle Rules,
1998 - R. 220 - Compensation - Future
loss - Entitlement - Accident took place in