# Pradeep Kumar Bisla v. Balwant Singh & Anr

- **Citation:** (2022) 5 ILRA 777
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-07
- **Case number:** First Appeal From Order No. 1634 of 2010
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-bisla-v-balwant-singh-anr-48588
- **Pages:** 9

## Headnote

Sri N.K. Srivastava

A. Motor Accident Claim - Standard of
proof - Civil or criminal cases, compared
with - Held, in motor accident claim
petition, the standard of prove is not as
strict as in civil or criminal cases - Strict
prove
of
an
accident
in
particular
manner may not be possible to be done
by the claimants - Claimants have to
establish their cases on the touchstone
of preponderance of probability. (Para
12 and 13)

B. Civil Law - Motor Accident Act, 1988 -
Claim - Deceased sustained injuries in
accident, subsequently he died during
pendency of claim petition - Though the
Tribunal
found
truck
driver
sole
negligent, but denied from awarding
compensation for death of the deceased
- Legality challenged - Cause of death
in
Post
mortem
report
is
chronic
diabetes - Effect - Held, the deceased
did not die as a result of injuries
sustained in the accident which had
taken place before 15 months of his
death - High Court found no link of the
death of the deceased with the injuries
sustained in accident. (Para 14)

C. Motor Accident Claim - Compensation
- Loss of estate, when can be granted -
Death of claimant during the pendency
of claim petition or appeal - Abatement
of petition or appeal - Entitlement of
legal representative of the deceased -
Held, if injured-claimant dies during the
pendency of the claim petition or appeal
and his/her death is not the result of
injuries in the accident, even though the
petition or appeal shall not abate and it
shall continue by legal representatives
but
only
with
regard
to
the
compensation for loss of estate of the
deceased - Claims for loss of estate
caused, was available to and could be
persuade by the legal representative of
the deceased in the appeal - High Court
found Tribunal's order of brushing aside
the medical bills of Yog Dispensary
worth Rs. 1,42,500/-, suffered from
error
and
re-computed
the
compensation
with
award
of
7.5%
interest. (Para 15, 17, 18, 21 and 23)

D. 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 25)
778 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal partly allowed (E-1)
List of Cases cited:-

## Text

5 All. Pradeep Kumar Bisla Vs. Balwant Singh & Anr.
777
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.

22. We, therefore, remand the matter
to the Tribunal. The record be sent back to
the Tribunal forthwith.
----------
(2022)05ILR A777
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2022

BEFORE

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

First Appeal From Order No. 1634 of 2010

Pradeep Kumar Bisla ...Appellant
Versus
Balwant Singh & Anr. ...Respondents

Counsel for the Appellant:
Sri R.K. Srivastava Sri Ankur Mehrotra

Counsel for the Respondents:
Sri N.K. Srivastava

A. Motor Accident Claim - Standard of
proof - Civil or criminal cases, compared
with - Held, in motor accident claim
petition, the standard of prove is not as
strict as in civil or criminal cases - Strict
prove
of
an
accident
in
particular
manner may not be possible to be done
by the claimants - Claimants have to
establish their cases on the touchstone
of preponderance of probability. (Para
12 and 13)

B. Civil Law - Motor Accident Act, 1988 -
Claim - Deceased sustained injuries in
accident, subsequently he died during
pendency of claim petition - Though the
Tribunal
found
truck
driver
sole
negligent, but denied from awarding
compensation for death of the deceased
- Legality challenged - Cause of death
in
Post
mortem
report
is
chronic
diabetes - Effect - Held, the deceased
did not die as a result of injuries
sustained in the accident which had
taken place before 15 months of his
death - High Court found no link of the
death of the deceased with the injuries
sustained in accident. (Para 14)

C. Motor Accident Claim - Compensation
- Loss of estate, when can be granted -
Death of claimant during the pendency
of claim petition or appeal - Abatement
of petition or appeal - Entitlement of
legal representative of the deceased -
Held, if injured-claimant dies during the
pendency of the claim petition or appeal
and his/her death is not the result of
injuries in the accident, even though the
petition or appeal shall not abate and it
shall continue by legal representatives
but
only
with
regard
to
the
compensation for loss of estate of the
deceased - Claims for loss of estate
caused, was available to and could be
persuade by the legal representative of
the deceased in the appeal - High Court
found Tribunal's order of brushing aside
the medical bills of Yog Dispensary
worth Rs. 1,42,500/-, suffered from
error
and
re-computed
the
compensation
with
award
of
7.5%
interest. (Para 15, 17, 18, 21 and 23)

D. 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 25)
778 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal partly allowed (E-1)
List of Cases cited:-
1. Anita Sharma Vs New India Assurance Co.
Ltd.; (2021) 1 SCC 171
2. C.M.A. No.1482 of 2017; Reliance General
Insurance Co. Ltd. Vs Subbulakshmi & ors.
decided on 27.04.2017
3. The Oriental Insurance Co. Ltd. Vs Kahlon @
Jasmail Singh Kahlon (deceased); LL 2021 SC
382
4. National Insurance Co. Ltd. Vs Mannat Johal
& ors. 2019 (2) T.A.C. 705 (S.C.)
5. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co. Ltd.; 2007(2) GLH 291
6. Review Application No. 1 of 2020 in First
Appeal From Order No. 23 of 2001; Smt.
Sudesna & ors. Vs Hari Singh & anr.
7. First Appeal From Order No. 2871 of 2016;
Tej Kumari Sharma Vs Chola Mandlam M.S.
General
Insurance
Co.
Ltd.
decided
on
19.3.2021
8. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs Union of India & ors. decided by Apex Court
on 27.01.2022

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal, at the behest of the
claimants, challenges the judgment and
order
dated
16.02.2010
passed
by
Additional District Judge, Court No.10,
Ghaziabad/
Motor
Accident
Claim
Tribunal, Ghaziabad in Motor Accident
Claim Petition No. 24 of 2005 awarding
compensation of Rs.4,10,924/- alongwith
6% interest.

2. The brief facts of the case are that
injured (later on deceased) Pradeep Kumar
Bisla filed a Motor Accident Claim Petition
No. 24 of 2005 before the Tribunal at
Ghaziabad for sustaining injuries in road
accident. The injured petitioner Pradeep
Kumar Bisla died during the pendency
of the claim petition.

3. As per averments in claim petition,
the deceased was going to J.P. Nagar from
Moradabad on 05.11.2004 at about 07:45
a.m. when he reached at village Nepaniya,
a truck bearing no. DL 1GB 2087 came
from opposite direction, which was being
driven rashly and negligently by its driver
and hit the car No. DL 3 CZ 5378, in which
the deceased was travelling. In this accident
the deceased sustained serious injuries and
he was admitted in Primary Health Centre
Rajabpur from where he was carried to the
hospital in Meerut where he was treated for
a long time. On 28.01.2006, the injured
died during the treatment.

4. Learned Tribunal found that the
accident took place due to the sole
negligence of driver of the truck and there
was no negligence on the part of the
deceased but learned Tribunal awarded
compensation under the head of medical
expenses and non-pecuniary damages.
Tribunal
denied
from
awarding
any
compensation for death of the deceased
holding that it could not be proved by the
appellants/claimants that the deceased died
as a result of injuries sustained in the
aforesaid accident.

5. Heard Sri R.K. Srivastava, learned
counsel for the appellant, Sri N.K.
Srivastava,
learned
counsel
for
the
respondent and perused the record.

6. The Insurance Company did not
challenge
the
liability
to
pay
the
compensation and no cross appeal is filed
by the Insurance Company. The accident is
also not in dispute. The major issue in this
appeal to be decided is whether appellants
are entitled to compensation for death of
5 All. Pradeep Kumar Bisla Vs. Balwant Singh & Anr.
779
the deceased also alongwith medical
expenses etc.

7. Learned counsel for the appellants
submitted that in the accident in question,
the deceased sustained serious injuries. Just
after the accident he was admitted in
Primary Health Centre, Rajabpur and from
there he was shifted to Lokpriya Hospital,
Meerut for better treatment. It is also
submitted that the medical papers of the
deceased go to show that the deceased
sustained several serious injuries and he
remained hospitalized for a long time and
ultimately he died on 28.01.2006 which
was the result of the severe injuries
sustained in the accident. Learned counsel
for the appellant submitted that entire
medical record was available before the
Tribunal but Tribunal did not appreciated
the evidence in right perspective. Copy of
post-mortem report is also on record and
the employee of Lokpriya Hospital, Meerut
was also examined.

8. Per contra, learned counsel for the
Insurance
Company
submitted
that
appellants failed to prove that the deceased
died on account of injuries sustained in the
accident, hence, the learned Tribunal has
denied compensation for death of the
deceased.

9. In reply, learned counsel for the
appellant also contended that the Tribunal
has awarded Rs.5,000/- which is a very
meager amount for special diet and
Rs.5,000/- for pain, shock and suffering. It
is also submitted that learned Tribunal has
awarded loss of income only to the extent
of two months salary of the deceased,
keeping in view of the fact that he
remained hospitalized only for two months.
Learned counsel next submitted that the
deceased was a Government Employee in
the Government of Punjab and he was
getting salary near about Rs.30,000 per
month. Future loss of income of the
deceased is also not considered by the
Tribunal.

10. Learned Tribunal has awarded
compensation with regard to the medical
bills, loss of salary for two months and very
meager amount for pain and sufferings and
special diet and no compensation was
granted with regard to death of the
deceased holding that the death was not the
result of injuries sustained in the accident.

11. Learned counsel for the appellant
made submission that the wife of the
deceased has deposed before learned
Tribunal that the deceased died due to
injuries sustained in the accident but her
testimony is not relied by the Tribunal
which is wrong appreciation of evidence.
On the contrary, learned counsel for the
Insurance Company has submitted that it
was not proved that the deceased died due
to the injuries sustained in accident. In this
regard a copy of the post-mortem report is
submitted on record by the appellants but
this report is not at all readable. Learned
Tribunal
had
given
opportunity
to
appellants to file a legible copy but they
failed to do so, hence, ante-mortem injuries
and cause of death could not be known by
the copy of post-mortem injuries on record,
in absence of which it could not be proved
that the death occurred due to those injuries
which were sustained in a road accident.

12. In motor accident claim petition
the standard of prove is not as strict as in
civil or criminal cases. In the case of Anita
Sharma & others Vs. The New India
Assurance Co. Ltd. & Anr. (2021) 1 SCC
171, the Hon'ble Apex Court has held as
under:-
780 INDIAN LAW REPORTS ALLAHABAD SERIES

"18. Unfortunately, the approach
of the High Court was not sensitive enough
to appreciate the turn of events at the spot,
or the appellant claimants' hardship in
tracing
witnesses
and
collecting
information for an accident which took
place many hundreds of kilometers away in
an altogether different State. Close to the
facts of the case in hand, this Court in
Parmeshwari v. Amir Chand1, viewed that:

(2011) 11 SCC 635 Page | 9 "12.
The other ground on which the High Court
dismissed the case was by way of
disbelieving the testimony of Umed Singh,
PW 1. Such disbelief of the High Court is
totally conjectural. Umed Singh is not
related to the appellant but as a good
citizen, Umed Singh extended his help to
the appellant by helping her to reach the
doctor's chamber in order to ensure that an
injured woman gets medical treatment. The
evidence of Umed Singh cannot be
disbelieved just because he did not file a
complaint himself. We are constrained to
repeat our observation that the total
approach of the High Court, unfortunately,
was not sensitised enough to appreciate the
plight of the victim.

xxx

15. In a situation of this nature,
the Tribunal has rightly taken a holistic
view of the matter. It was necessary to be
borne in mind that strict proof of an
accident caused by a particular bus in a
particular manner may not be possible to
be done by the claimants. The claimants
were merely to establish their case on the
touchstone
of
preponderance
of
probability. The standard of proof beyond
reasonable doubt could not have been
applied."

(emphasis supplied)

13. The Division Bench of the Madras
High Court in the case of Reliance General
Insurance
Company
Ltd.
Vs.
Subbulakshmi and others passed in
C.M.A. No.1482 of 2017 decided on
27.04.2017 has held that strict prove of an
accident in particular manner may not be
possible to be done by the claimants but
claimants have to establish their cases on
the
touchstone
of
preponderance
of
probability. The standard of prove beyond
reasonable doubt cannot be applied.

14. In the case in hand, the learned
Tribunal has concluded that the accident in
question had taken place due to sole
negligence of the truck driver and the
deceased was not negligent but we are not
convinced with the finding of learned
Tribunal with regard to the copy of the
post-mortem report that it is not at all
legible. We have gone through the record
and found that although the copy of postmortem is not clear yet the cause of death is
readable which is chronic diabetes, hence
we are convinced that the deceased did not
die as a result of injuries sustained in the
accident which had taken place before 15
months of his death. Hence, we are
convinced that the appellants have failed to
link the death of the deceased with the
injuries sustained in accident.

15. Now it comes another situation
which is more relevant in this particular
case. The question arises whether the claim
petition or its appeal, as the case may be,
shall continue after death of the injured
claimant. The answer is in affirmative. If
injured-claimant dies during the pendency
of the claim petition or appeal and his/her
death is not the result of injuries in the
accident, even though the petition or appeal
shall not abate and it shall continue by legal
representatives but only with regard to the
5 All. Pradeep Kumar Bisla Vs. Balwant Singh & Anr.
781
compensation for loss of estate of the
deceased. The Hon'ble Apex Court has
recently in the case of The Oriental
Insurance Company Limited Vs. Kahlon
@ Jasmail Singh Kahlon (deceased)
through his legal representative Narinder
Kahlon Gosakan and Another reported in
LL 2021 SC 382, has held as under:-

9. The Act is a beneficial and
welfare legislation. Section 166(1)(a) of
the Act provides for a statutory claim for
compensation arising out of an accident
by the person who has sustained the
injury. Under Clause (b), compensation
is payable to the owner of the property.
In
case
of
death,
the
legal
representatives of the deceased can
pursue the claim. Property, under the
Act, will have a much wider connotation
than the conventional definition. If the
legal heirs can pursue claims in case of
death, we see no reason why the legal
representatives cannot pursue claims for
loss of property akin to estate of the
injured if he is deceased subsequently
for reasons other than attributable to the
accident or injuries under Clause 1(c) of
Section 166. Such a claim would be
completely
distinct
from
personal
injuries to the claimant and which may
not be the cause of death. Such claims of
personal injuries would undoubtedly
abate with the death of the injured. What
would the loss of estate mean and what
items would be covered by it are issues
which has to engage our attention. The
appellant has a statutory obligation to
pay compensation in motor accident
claim cases. This obligation cannot be
evaded behind the defence that it was
available only for personal injuries and
abates on his death irrespective of the
loss caused to the estate of the deceased
because of the injuries.

10. In Umed Chand (supra),
giving a broad liberal interpretation to the
provisions of the Act so that legal
representatives do not suffer injustice, it
was observed that the claim for personal
injuries will not survive on death of the
injured unrelated to the accident but the
legal representatives could pursue the
claim for enhancement of the claim for loss
of
the
estate
which
would
include
expenditure
on
medical
expenses,
travelling, attendant, diet, doctor's fee and
reasonable monthly annual accretion to the
estate for a certain period. It is trite that
the income which a person derives
compositely forms part of the expenditure
on himself, his family and the savings go to
the estate. The unforeseen expenses as
aforesaid naturally have to be met from the
estate causing pecuniary loss to the estate."

The Apex Court in the aforesaid
case has further held as follows:-

"14. This view has subsequently
been followed in a decision authored by
brother Justice M.R. Shah J., (as he then
was) in Madhuben Maheshbhai Patel vs.
Joseph Francis Mewan and Others, 2015
(2) GLH 499, holding as follows:

"12....Considering the aforesaid
decision of the Division Bench of this Court
in the case of Surpal Singh Ladhubha Gohil
(supra); decisions of the learned Single
Judge of this Court in the case of Jenabai
Widow of Abdul Karim Musa (supra) and
in the case of Amrishkumar Vinodbhai
(supra); and aforesaid two decisions of the
learned Single Judge of the Rajasthan High
Court, we are of the opinion that maxim
"actio personalis moritur cum persona" on
which Section 306 of the Indian Evidence
Act (sic Indian Succession Act) is based
cannot have an applicability in all actions
782 INDIAN LAW REPORTS ALLAHABAD SERIES
even in an case of personal injuries where
damages flows from the head or under the
head of loss to the estate.

Therefore, even after the death of
the injured claimant, claim petition does not
abate and right to sue survive to his heirs and
legal representatives in so far as loss to the
estate is concerned, which would include
personal expenses incurred on the treatment
and other claim related to loss to the estate.
Under the circumstances, the issue referred
to
the
Division
Bench
is
answered
accordingly. Consequently, it is held that no
error has been committed by the learned
Tribunal in permitting the heirs to be brought
on record of the claim petition and permitting
the heirs of the injured claimant who died
subsequently to proceed further with the
claim petition. However, the claim petition
and even appeal for enhancement would be
confine to the claim for the loss to the estate
as observed hereinabove."

15. Similar view has been taken
by the Punjab & Haryana High Court in
Joti Ram vs. Chamanlal, AIR 1985 P&H
2 and the Madras High Court in
Thailammai vs. A.V. Mallayya Pillai,
1991 ACJ 185 (Mad).

16. The view taken in Kanamma
(supra) and Uttam Kumar (supra) that the
claim would abate is based on a narrow
interpretation of the Act which does not
commend to us. The reasoning of the Gujarat
High Court is more in consonance with aim,
purpose and spirit of the Act and furthers its
real intent and purpose which we therefore
approve."

16. In the aforesaid case, lastly the
Hon'ble Apex Court has clarified what to be
calculated in loss of estate, which is as
follows:-

"20. We see no reason to deviate
from the consistent judicial view taken by
more than one High Court that loss of
estate would include expenditure on
medicines,
treatment,
diet,
attendant,
Doctor's fee, etc. including income and
future prospects which would have caused
reasonable accretion to the estate but for
the sudden expenditure which had to be met
from and depleted the estate of the injured,
subsequently deceased.

21. However, the compensation
under the head pain and suffering being
personal
injuries
is
held
to
be
unsustainable and is disallowed."

17. Hence, in such type of case, as in
our hand the settled law is that while the
claim for personal injury may not have
survived after the death of the injured
unrelated to the accident or injuries, during
the pendency of the appeal, but the claims
for loss of estate caused, was available to
and could be persuade by the legal
representative of the deceased in the
appeal.

18. Hence, we are of the considered
opinion that the appellants shall be entitled
only with regard to the compensation for
loss of estate of the deceased. The
impugned judgment goes to show that the
appellants were awarded Rs.3,46,270/- for
medical bills but the learned Tribunal has
denied the medical bills for Rs.1,42,500/-
which pertains to Yog Dispensary. In this
regard, it is concluded by the Tribunal that
it is not mentioned in claim petition that
deceased was ever admitted to Yog
Dispensary and the name of the doctor
Amit Talyan is also not mentioned in claim
petition in the panel of doctors who treated
the injured/deceased. On this basis, the
Tribunal has denied the medical bills
5 All. Pradeep Kumar Bisla Vs. Balwant Singh & Anr.
783
pertaining to Yog Dispensary. We have
gone through the records and found that the
bills pertaining to Yog Dispensary are
prepared on the printed bill book having
serial numbers and each bill has name of
the patient and name of the concerned
doctor, hence, these bills could not be
thrown away in such a causal manner.
Learned Tribunal did so. It is pertinent to
mention that the Insurance Company never
prayed to the Tribunal to summon the
owner/proprietor of dispensary to summon
as a witness. If these bills were fake, it was
the burden on the shoulders of the
Insurance Company to get the proprietary
of Yog Dispensary summoned or he could
be summoned by the Tribunal as a Court
witness and could have been put to cross
examination but no such exercise is done
either by Insurance Company or Tribunal
itself. Hence, the Tribunal has fallen in
error in brushing aside the medical bills of
Yog
Dispensary
worth
Rs.1,42,500/-,
hence, we hold that the appellants shall also
be entitled to get Rs.1,42,500/- for medical
expenses which come under the head of
loss of a estate as per the judgment in the
case of Kahlon @ Jasmail Singh Kahlon
(supra). The Tribunal has awarded only
Rs.5,000/- for special diet which we
enhance to Rs.25,000/-. The Tribunal has
not awarded any amount under nonpecuniary heads except for special diet. The
family members would have cared of the
deceased for 15 months and for attending
charges, we award lump sum Rs.1/- lac to
the family members.

19. However, the compensation under
the head of pain and suffering being
personal injuries is held to be unsustainable
and is disallowed by Hon'ble Apex Court in
the aforesaid judgment in the case of
Kahlon @ Jasmail Singh Kahlon (supra),
hence, the appellant shall not be entitled to
the compensation under the head of pain
and suffering i.e. Rs.5,000/-. The decision
in Kahlon @ Jasmail Singh Kahlon
(supra) would be applicable but in our case
the situation is that the deceased suffered
for 15 months consistently, subjected to
hospitalization in several hospitals which
would have caused the trauma to the family
members. Once, we hold that the driver of
the truck was liable for the tortious act, the
amount for agony and anguish will have to
be awarded, we award lump sum of Rs.1/-
lac under the non-pecuniary heads.

20. It is as per the reasoning given
herein above unfortunately the claimants did
not file any disability certificate of the
deceased which he would have incurred
during the period of his ailment. The medical
certificate which we have perused, go to
show that there were three injuries and
fracture which would bring about some kind
of permanent disability, when he was a
government employee, and therefore, over
and above, the loss of income for two months
a lump sum amount of Rs.50,000/- under the
loss to the estate even under principle of
injuries resulting into ailment, is granted.

21. On the basis of the above
discussion, we recalculate the amount of
compensation payable to the appellants as
under:-

(i).
Amount
awarded
by
Tribunal= Rs.4,10,924/-,

(ii). Deduction of amount under
the head of pain and suffering= Rs.5,000/-,

(iii).
Remaining
amount=
Rs.4,05,924/-,

(iv).
Enhanced amount
for
special diet= Rs.20,000/-,
784 INDIAN LAW REPORTS ALLAHABAD SERIES

(v).
Medical
bills
of
Yog
Dispensary(etc)= Rs.1,42,500/-,

(vi).
Attending
charges=
Rs.1,00,000/-

(vii).
Amount
under
nonpecuniary head= Rs.1,00,000/-

(viii).
Loss
of
estate=
Rs.50,000/-)

(ix).
Total
amount
of
compensation
payable=
Rs.4,05,924+1,42,500+20,000+1,00,000+1
,00,000+50,000/-=Rs.8,18,424/-.

(Round Figure Rs.8,18,000/-).

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
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. Learned Tribunal has awarded
rate of interest as 7% per annum but we are
fixing the rate of interest as 7.5% in the
light of the above judgment.

24. 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-National
Insurance
Company
Ltd.
(Insurance
Company) shall deposit the 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.

25. 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
5 All. Oriental Insurance Co. Ltd., Allahabad Vs. Shyam Babu Kesarwani & Anr.
785
Insurance Co. Ltd.) decided on 19.3.2021
while disbursing the amount.

26. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex
Court in Bajaj Allianz General Insurance
Company Pvt. Ltd. Vs. Union of India and
Others, vide order dated 27.01.2022, as the
purpose of keeping compensation is to
safeguard the interest of the claimants.
Since long time has elapsed, the amount be
deposited in the Saving Bank Account of
claimant(s) in a nationalized Bank without
F.D.R.
----------
(2022)05ILR A785
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.04.2022

BEFORE

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

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

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

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

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

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

Allowed. (E-5)

List of Cases cited:

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

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

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

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

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

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

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

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

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

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

11. Oriental Insurance Comp. Ltd. Vs Poonam
Kesarwani & ors., 2008 LawSuit (All) 1557