# Prabhat Kumar & Ors v. Dheeraj Khurana & Anr. 226 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 4 ILRA 225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-11
- **Case number:** First Appeal From Order No. 1165 of 2009
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhat-kumar-ors-v-dheeraj-khurana-anr-226-indian-law-reports-allahabad-series-48292
- **Pages:** 9

## Headnote

(A) Torts Law - Motor Vehicles Act, 1988 -
Section
166,173
-
compensation
enhancement - principles for grant of just
compensation - minor who had become
practically crippled - sympathetic view
required by tribunal in such matters when
the child has suffered such a great loss of
body part.(Para - 7,16)

(B) Torts Law - Motor Vehicles Act, 1988 -
principle of "res ipsa loquitur" - "the
things speak for itself" - principle of
contributory negligence - A person who
either
contributes
or
author
of
the
accident
would
be
liable
for
his
contribution to the accident having taken
place. (Para - 10,11)

Victim was minor ( age 16 years) - tribunal
held - accident taken place due to rash and
negligent driving of the motorcyclist - minor
was also negligent - contributory negilence
of child 10% - injured did not have licence
to drive moped when the accident occurred
-
right
side
kidney
of
the
appellant
damaged - tribunal not taken sympathetic
view - child suffered great loss of body
part - Theories of just compensation -
overlooked by the tribunal - no disability or
injury report was filed - award a sum of Rs.
55,363 - rate of interest 65 to accused -
multiplier 18.

HELD:-The findings of fact that the child was
negligent and accident was between the
Scotty which was being driven by the injured
is upheld . Perversity in non granting just
compensation.
Total
Compensation
Rs.
4,42,160 /-. Rate of interest should be 7.5%
from the date of filing of the claim petition till
the
amount
is
deposited.(Para
-14
,17,19,22,23)

Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

4 All. Prabhat Kumar & Ors. Vs. Dheeraj Khurana & Anr.
225
head of non-pecuniary damages, which are
on lower side. As per judgement of the Apex
Court in Pranay Sethi (supra) claimants shall
be entitled to Rs.15,000/- for funeral
expenses and Rs.15,000/- for loss of estate.
Apart from it, the wife of the deceased shall
be entitled to get Rs.40,000/- for loss of
consortium. Non-pecuniary damages are with
10% increase every three years. Hence, we
grant Rs.1,00,000/- in the head of nonpecuniary damages.

8. Hence, the total compensation
payable to the claimants is computed herein
below:-

i. Annual Income : Rs.5,000/- x
12 = Rs.60,000/-

ii.
Amount
towards
future
prospects : 40% = Rs.24,000/-

iii. Total Income : Rs.60000+
Rs.24,000/- = Rs.84,000/-

iv. Income after deduction of 1⁄4 =
84,000-21,000 = Rs.63,000/-

vi. Multiplier applicable : 17

vii. Total loss of dependency
Rs.63,000/- x 17 = Rs.10,71,000/-

viii. Amount under non-pecuniary
heads : Rs.1,00,000/-

ix. Total compensation : Rs.
10,71,000 + Rs.1,00,000 = Rs.11,71,000/-

9. As Insurance Company has conciliated
the matter, 6% per annum rate of interest should
be paid. The insurance company shall deposit
the amount within a period of 12 weeks from
today with interest at the rate of 6% per annum
from the date of filing of the claim petition till
amount is deposited. The amount already
deposited be deducted from the amount to be
deposited.

10. Accordingly, the appeal of claimants is
partly allowed and appeal of the Insurance
Company is dismissed.

11. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of Smt.
Hansagori P. Ladhani v/s The Oriental
Insurance Company Ltd., reported in 2007(2)
GLH 291 and this High Court in total amount of
interest, accrued on the principal amount of
compensation is to be apportioned on financial
year to financial year basis and if the interest
payable to claimant for any financial year
exceeds Rs.50,000/-, insurance company/owner
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.

12. The record and proceedings be
sent back to the Tribunal for disbursement.
----------
(2022)04ILR A225
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

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

First Appeal From Order No. 1165 of 2009

Prabhat Kumar & Ors. ...Appellants
Versus
Dheeraj Khurana & Anr. ...Respondents
226 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Vishesh Kumar Gupta, Sri A.K. Shukla

Counsel for the Respondents:
Sri Radhey Shyam

(A) Torts Law - Motor Vehicles Act, 1988 -
Section
166,173
-
compensation
enhancement - principles for grant of just
compensation - minor who had become
practically crippled - sympathetic view
required by tribunal in such matters when
the child has suffered such a great loss of
body part.(Para - 7,16)

(B) Torts Law - Motor Vehicles Act, 1988 -
principle of "res ipsa loquitur" - "the
things speak for itself" - principle of
contributory negligence - A person who
either
contributes
or
author
of
the
accident
would
be
liable
for
his
contribution to the accident having taken
place. (Para - 10,11)

Victim was minor ( age 16 years) - tribunal
held - accident taken place due to rash and
negligent driving of the motorcyclist - minor
was also negligent - contributory negilence
of child 10% - injured did not have licence
to drive moped when the accident occurred
-
right
side
kidney
of
the
appellant
damaged - tribunal not taken sympathetic
view - child suffered great loss of body
part - Theories of just compensation -
overlooked by the tribunal - no disability or
injury report was filed - award a sum of Rs.
55,363 - rate of interest 65 to accused -
multiplier 18.

HELD:-The findings of fact that the child was
negligent and accident was between the
Scotty which was being driven by the injured
is upheld . Perversity in non granting just
compensation.
Total
Compensation
Rs.
4,42,160 /-. Rate of interest should be 7.5%
from the date of filing of the claim petition till
the
amount
is
deposited.(Para
-14
,17,19,22,23)

Appeal partly allowed. (E-7)

List of Cases cited:-
1. Kajal Vs Jagdish Chand & ors. , AIR 2020 SC
776

2. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. ,F.A.F.O. No. 1818 of
2012

3. Bishan Dass Vs Himachal Road Transport
Corporation (hrtc) & Ors, AIR 2014 ACJ 1012

4. Hdfc Ergo General Insurance Co. Ltd. Vs
Mukesh Kumar, 2021 (0) AJEL-SC 67851

5. Jithendran Vs New India Assurance Co. Ltd.,
2021 (0) AIJEL-SC 67944

6. A.V. Padma Vs Venugopal, 2012 (1) GLH
(SC), 442

7. Smt. Hansagauri P. Ladhani Vs The Oriental
Insurance Co. Ltd., 2007(2) GLH 291

8. Smt. Sudesna & ors. Vs Hari Singh & anr. ,
F.A.F.O. No.23 of 2001

9. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (S.C.)

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

1. Heard Shri A.K. Shukla for Vishesh
Kumar
Gupta,
learned
counsel
for
appellants; Shri Radhey Shyam, learned
counsel for respondent-insurance company;
and perused the judgment and order
impugned.

2. This First Appeal From Order has
been filed under section 173 of Motor
Vehicle Act, 1988 (hereinafter referred to
'Act, 1988') by appellants, being aggrieved
by judgment and award dated 20.12.2008
passed by Motor Accident Claims Tribunal,
Court
No.3,
Moradabad
(hereinafter
referred to as 'Tribunal') in Claim Petition
No. 326 of 2006 awarding a sum of
4 All. Prabhat Kumar & Ors. Vs. Dheeraj Khurana & Anr.
227
Rs.55,363/- with interest at the rate of 6%
to the injured.

3. The accident having taken place is
not in dispute. A young boy of 16 years in
the year 2006 met with an accident, the
learned
Tribunal
granted
a
sum
of
Rs.55,363/- only. The tribunal considered
contributory negligence of child to be 10%.
The appellant having suffered loss of
income besides other grievous injuries in
whole of the body and had sustained
compound fractures, various operations
were carried out on appellant by doctors at
Shri Sai Hospital and All India Medical
Institute of Delhi whereby his one kidney
was removed due to injuries.

4. The vehicle being insured with
insurance company and there is no breach
of policy condition is not in dispute. The
accident occurred way back in the year
2006 is not in dispute. The involvement of
the vehicle is not in dispute and it is proved
before the Tribunal that the driver of the
vehicle was negligent.

5. The appellant challenges the
findings being bad on facts against the
record as far non grant of compensation
and negligence is concerned. A factual data
is not adverted to except that the accident
occurred on 8.7.2006 at about 9.00 p.m.
when the driver of motor cycle rashly and
negligently drove Motorcycle No.UP 21 Q
2563 and caused accident injuring the
appellant, when the appellant was going on
his road side by moped which is proved by
appellant
by
oral
and
documentary
evidence as such appellant sustained injury
on right side kidney and lever was badly
damaged in the said accident. The appellant
(minor) was about 16 years of age when the
accident occurred and his one kidney was
removed and he would be by now 32 years
of age. Unfortunately tribunal has awarded
only Rs.55363/- with 6% rate of interest in
which medical Rs.14,000/- is for permanent
disability and Rs.29,363/- for medical
expenses and Rs.7000/- for special diet and
Rs.5000/- for pain and suffering only.

6. It is submitted by the learned
counsel for the appellant claimant that the
Tribunal has materially erred in calculating
the compensation. Learned counsel for
appellant has heavily relied on the
judgment of Kajal v. Jagdish Chand and
others reported in AIR 2020 SC 776 and
has contended that the principles for grant
of just compensation has not been followed
by the tribunal though the appellant proved
that the claimant was operated and one of
his kidneys got damaged due to accidental
injuries had to be removed. According to
learned counsel for appellant it was
because of the fault of the opponent driver,
that the appellant suffered the injuries.
According to the learned counsel for the
appellant notional yearly income of the
injured should be considered Rs.60,000/-
per annum; and 40% be added towards
future loss of income; multiplier of 18 be
granted; loss of earning be calculated at
30% disability; and Rs.1,00,000/- towards
pain and suffering; and Rs.75,000/- for all
other non pecuniary damages be granted
which would be just and proper and would
be
adequate
compensation.
Learned
counsel has relied on decision of Apex
Court
in
case
titled
Kajal
(Supra),
paragraphs 15 and 16 of the (Kajal Supra)
judgment quoted herein below:

"15. In R.D. Hattangadi v. Pest
Control (India) Pvt. Ltd.6, dealing with the
different heads of compensation in injury
cases this Court held thus:

"9.
Broadly
speaking,
while
fixing the amount of compensation payable
228 INDIAN LAW REPORTS ALLAHABAD SERIES
to a victim of an accident, the damages
have to be assessed separately as pecuniary
damages and special damages. Pecuniary
damages are those which the victim has
actually incurred and which are capable of
being calculated in terms of money;
whereas nonpecuniary damages are those
which are incapable of being assessed by
arithmetical calculations. In order to
appreciate two concepts pecuniary damages
may include expenses incurred by the
claimant: (i) medical attendance; (ii) loss of
earning of profit up to the date of trial; (iii)
other material loss. So far as non pecuniary
damages are concerned, they may include:

(i) damages for mental and
physical shock, pain and suffering already
suffered or likely to be suffered in the
future; (ii) damages to compensate for the
loss of amenities of life which may include
a variety of matters, i.e., on account of
injury the claimant may not be able to
walk, run or sit; (iii) damages for loss of
expectation of life, i.e. on account of injury
the normal longevity of the person
concerned is shortened; (iv) inconvenience,
hardship, 5 1980 ACJ 55 (SC) 6 (1995) 1
SCC
551
discomfort,
disappointment,
frustration and mental stress in life."

16. In Raj Kumar v. Ajay Kumar
and Others, this Court laid down the heads
under which compensation is to be awarded
for personal injuries.

"6. The heads under which
compensation is awarded in personal injury
cases are the following:

Pecuniary
damages
(Special
damages)

(i)Expenses relating to treatment,
hospitalization, medicines, transportation,
nourishing
food,
and
miscellaneous
expenditure.

(ii) Loss of earnings (and other
gains) which the injured would have made
had he not been injured, comprising: (a)
Loss of earning during the period of
treatment; (b) Loss of future earnings on
account of permanent disability.

(iii) Future medical expenses.

Non pecuniary damages (General
damages)

(iv) Damages for pain, suffering
and trauma as a consequence of the
injuries.

(v) Loss of amenities (and/or loss
of prospects of marriage).

(vi) Loss of expectation of life
(shortening of normal longevity).

In routine personal injury cases,
compensation will be awarded only under
heads (i), (ii) (a) and (iv). It is only in
serious cases of injury, where there is
specific medical evidence corroborating the
evidence
of
the
claimant,
that
compensation will be granted under any of
the heads (ii)(b), (iii), (v) and (vi) relating
to loss of future earnings on account of
permanent
disability,
future
medical
expenses, loss of amenities (and/or loss of
prospects
of
marriage)
and
loss
of
expectation of life." 7 (2011) 1 SCC 343"

7. Recently the Supreme Court had an
occasion of deciding a similar matter
relating to a minor who had become
practically crippled. The principles of just
compensation have been laid in the said
judgment.

8.

The
Tribunal
held
that
claimant/appellant to be negligent to the
tune of 10%. The counsel has submitted
that appellant was not at all negligent.

9. The issue of negligence has to be
decided from the perspective of the law laid
down by the Courts.

10. The term negligence means failure
to exercise care towards others which a
4 All. Prabhat Kumar & Ors. Vs. Dheeraj Khurana & Anr.
229
reasonable and prudent person would in a
circumstance. Negligence can be both
intentional or accidental which can also be
accidental.
More
particularly,
term
negligence connotes reckless driving and
the injured of claimants 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.

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

12. 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 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
230 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

13. The aforesaid judgment would
apply to the facts of this case just because
the injured did not have licence to drive
moped when the accident occurred would
not permit us to concur with the tribunal.

14. While going through the record, it
is proved that the victim was 16 years of
age and was a minor. In our case, the
tribunal on the basis of evidence held that
accident had taken place due to rash and
negligent driving of the motorcyclist and
held the minor was also negligent. The
tribunal relied on the decision of the Apex
Court in Bishan Dass v. Himachal Road
Transport Corporation (hrtc) And Ors,
AIR 2014 ACJ 1012 and, therefore, the
findings of fact that the child was negligent
and accident was between the Scotty which
was being driven by the injured is upheld.
The driver of the motorcycle did not
even appear before the tribunal as the
witnesses have been examined who have
deposed in favour of the minor.

COMPENSATION

15. We now decide the compensation
the right side kidney of the appellant was
damaged is an admitted position of fact
which is borne out from the records and the
judgment, he was treated by several doctors
he was treated in All India Medical
Institute, Delhi who was opined as oath as
4 All. Prabhat Kumar & Ors. Vs. Dheeraj Khurana & Anr.
231
PW-7 (Dr. Loti P.) just because the
respondent has contended that treatment
was on Government expenses. The injuries
suffered by the appellant go to show that
his one kidney had to be removed. The
learned tribunal has taken a hyper technical
view in the matter. The medical treatment
papers also go to show that the liver was
damaged, there was lot of blood which had
to be drained. Dr. Arun and Dr. R.S. Gupta
had also examined the juvenile, Dr. Mohit
Agarwal who was working with Sai
Hospital has also treated him his left kidney
have to be removed. There was blood Clots
in the stomach and therefore he had to be
operated his health though Dr. Mohit
Agarwal has been examined as PW-4, who
has stated that there was grade-4 injuries to
the damage and grade-4 injury means that
the kidney was damaged to a great extent.

16. The learned tribunal has not taken
sympathetic view which is required by
tribunal in such matters when the child has
suffered such a great loss of body part.
Theories of just compensation has also
been overlooked by the tribunal while
adjudicating this matter, just because no
disability or injury report was filed. Section
166 of the Motor Vehicles Act, 1988 reads
as follows:-

166.
Application
for
compensation.--

(1)
An
application
for
compensation arising out of an accident of
the nature specified in sub-section (1) of
section 165 may be made--

(a) by the person who has
sustained the injury; or

(b) by the owner of the property;
or

(c) where death has resulted
from the accident, by all or any of the
legal representatives of the deceased; or

(d) by any agent duly authorised
by the person injured or all or any of the
legal representatives of the deceased, as
the case may be: Provided that where all
the legal representatives of the deceased
have not joined in any such application for
compensation, the application shall be
made on behalf of or for the benefit of all
the legal representatives of the deceased
and the legal representatives who have not
so
joined,
shall
be
impleaded
as
respondents to the application. 1[(2) Every
application under sub-section (1) shall be
made, at the option of the claimant, either
to the Claims Tribunal having jurisdiction
over the area in which the accident
occurred, or to the Claims Tribunal within
the local limits of whose jurisdiction the
claimant resides or carries on business or
within
the
local
limits
of
whose
jurisdiction the defendant resides, and
shall be in such form and contain such
particulars as may be prescribed: Provided
that where no claim for compensation
under section 140 is made in such
application, the application shall contain a
separate
statement
to
that
effect
immediately before the signature of the
applicant.] 2[***] 3[(4) The Claims
Tribunal shall treat any report of accidents
forwarded to it under sub-section (6) of
section
158
as
an
application
for
compensation under this Act."

17. We reproduce the evidence of
doctor, as PW-7 (Dr. Loti) has categorically
mentioned that "मऱीज के पेि में 600 ml िून
जमा र्था, राइि सकडऩी को बिार सनकल सदया
र्था". The patient was admitted from
9.7.2006 to 15.7.2006, thereafter also he
was under constant treatment and it is
opined that he would need treatment in
future despite that the tribunal has granted a
meagre amount of Rs.55,633/- out of Rs.
232 INDIAN LAW REPORTS ALLAHABAD SERIES
29,363/- is for medical expenses, and Rs.
5000/- for pain and suffering. This shows
the perversity in non granting what is
known as just compensation.

18. Victim was 16 years of age. As per the
medical report, he has suffered 30% disability
for the body as a whole which means it would
be 30% disability for earning. The accident
occurred before a decade, namely, 2006. Hence
he would be at the age of 32 years as of today.

19. We, therefore, would rely on the
judgment in case titled Kajal (Supra) and in this
backdrop let us evaluate the income in view of
the decisions of the Apex Court titled Hdfc
Ergo General Insurance Co. Ltd. v. Mukesh
Kumar, 2021 (0) AJEL-SC 67851 and
Jithendran v. New India Assurance Co. Ltd.,
2021 (0) AIJEL-SC 67944 and, the recalculate
the compensation which would be as follows:

i. Income =3,000/-p.m.

ii.
Percentage
towards
future
prospects : 40% namely = Rs.1200/- iii. Total
income : Rs.3000+1200 = Rs.4200/-

iv. Loss of earning capacity: 30%
namely Rs.1260/-

v. Annual Loss : Rs.1260 x 12 =
Rs.15,120/-

vi. Multiplier applicable : 18

vii. Total Loss : Rs. 15,120 x 18 =
Rs.2,72,160/-

viii. For pain & sufferings :
Rs.1,00,000/-(as his one kidney has been
removed)

ix. All other heads for non pecuniary
damages = Rs.70,000/-

x. Total compensation (vii+viii+ix):
Rs.2,72,160 + Rs. 1,00,000 + Rs.70,000
=4,42,160/-

20. 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 is not passed because applicants
/claimants are neither illiterate or rustic
villagers.

21. 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.

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 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
4 All. Gopi Charan Vs. Smt. Rekha Dwivedi & Anr.
233
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. 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 respondentInsurance Company shall deposit the
amount along with additional amount
within a period of 12 weeks from today
with interest at the rate of 7.5% from the
date of filing of the claim petition till the
amount is deposited. The amount already
deposited be deducted from the amount to
be deposited.

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

25. The lower court record be sent
back,
if
here,
to
the
tribunal
for
disbursement.

26. A copy of this order be sent to
Shri P.C. Mishra, Additional District
Judge/MACT, Court No.3, Moradabad, if
he is in service so that he may be more
careful in future.
----------

(2022)04ILR A233
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2022
BEFORE

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

First Appeal From Order No. 1176 of 2007
&
First Appeal From Order No. 1177 of 2007
&
First Appeal From Order No. 1179 of 2007

Gopi Charan ...Appellant
Versus
Smt. Rekha Dwivedi & Anr. ...Respondents

Counsel for the Appellant:
Sri Anurudh Chaturvedi

Counsel for the Respondents:

(A) Torts Law - Motor vehicle Act,1988 -
Section 173 - Contributory negligence -
Composite negligence - Pillion rider -
Principle of " res ipsa loquitur" - " the
things speak for itself" - Mere failure to
avoid
the
collision
by
taking
some
extraordinary precaution, does not in
itself constitute negligence - Two Pillion
riders did not mean that the rider has
contributed in the accident - vehicle which
is being driven should show more care and
caution (Cardinal principle).(Para - 16, 23,
27)

(B) Torts Law - Principle of Contributory
negligence
-
a
person
who
either
contributes or is co author of the accident
would be liable for his contribution to the
accident
having
taken
place
-
that
amount
will
be
detected
from
the
compensation payable to him if he is
injured - to legal representative if he dies
in the accident .(Para - 17)

(C) Torts Law - Principle of Composite
negligence - liability is joint and several -
claimant entitled to seek compensation
either from the driver of both the vehicles
or he may seek entire compensation from
any of the drivers .(Para - 28)