# Radhey Shyam Gupta & Ors v. Qamar Uddin & Anr

- **Citation:** (2023) 6 ILRA 155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-01
- **Case number:** First Appeal From Order No. 279 of 1996
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-gupta-ors-v-qamar-uddin-anr-50440
- **Pages:** 5

## Headnote

A. Civil Law - Motor Vehicles Act, 1988Section 173-quantum of compensationdeceased falls within the category of self
employed and his age is within the age
bracket of 21-25 years at the time of
accident-income
of
the
deceased
is
156 INDIAN LAW REPORTS ALLAHABAD SERIES
considered to be Rs. 1000/- 40% of
income added towards future loss of
income-Hence,
total
compensation
granted Rs.2,56,800/- @ 6% from Rs.
66000/- (Para 1 to 16)

B. As per ratio laid down in Hansaguri
Ladhani case, the 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 fo
this Tribunal is directed to allow the
claimant to withdraw the amount without
producing
the
certificate
from
the
concerned Income-Tax Authority. (Para
14)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

6 All. Radhey Shyam Gupta & Ors. Vs. Qamar Uddin & Anr.
155
version from the side of accused-appellant
that some miscreants had committed the
crime in absence of the family members, it
can not be concluded that the prosecution
has been successful in proving the case
beyond reasonable doubt. If after ousting
the oral testimonies which are not in
support of the prosecution, it is concluded
that it was a case of circumstantial
evidence, in that case the mandatory
elements such as motive, last-seen, extrajudicial confession and recovery have not
been proved beyond reasonable doubt
against the accused-appellant. Since there
is no iota of evidence that at the time of
alleged occurrence, the accused was at
home, hence, no burden under Section 106
of the Evidence Act, would be upon the
accused-appellant.

26. Thus, from all the four corners,
this Court is of the view that the
prosecution has failed miserably in proving
the guilt beyond reasonable doubt against
the accused-appellant. The trial Court has
also failed in appreciating the evidence and
law and has wrongly applied the law and
has come up to the wrong conclusion and
has convicted and sentenced the accusedappellant without any basis.

27. Accordingly, this appeal succeeds
and the impugned judgment and order of
conviction and sentencing dated 7.9.2017 is
liable to be set aside.

Order

28. The appeal is allowed and the
order and judgment of conviction and
sentencing dated 7.9.2017 is hereby set
aside. The accused-appellant, Ramchandra,
is acquitted of the charge under Section 302
I.P.C. levelled against him. The appellant
be set free forthwith if not warranted in any
other offence.

29. We request Registrar General of
this Court to place this judgment before
Hon'ble The Chief Justice to circulate our
concern in para 23 to concerned Judge and
to trial Judges to be more careful in future
while referring to medical reports and
authoritative pronouncements.

30. Records of the case along with
copy of this judgment be sent back to the
Trial Court forthwith for consignment.
----------
(2023) 6 ILRA 155
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2023 &
01.05.2023

BEFORE

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

First Appeal From Order No. 279 of 1996

Radhey Shyam Gupta & Ors. ...Appellants
Versus
Qamar Uddin & Anr. ...Respondents

Counsel for the Appellants:
Sri Madhav Jain

Counsel for the Respondents:

A. Civil Law - Motor Vehicles Act, 1988Section 173-quantum of compensationdeceased falls within the category of self
employed and his age is within the age
bracket of 21-25 years at the time of
accident-income
of
the
deceased
is
156 INDIAN LAW REPORTS ALLAHABAD SERIES
considered to be Rs. 1000/- 40% of
income added towards future loss of
income-Hence,
total
compensation
granted Rs.2,56,800/- @ 6% from Rs.
66000/- (Para 1 to 16)

B. As per ratio laid down in Hansaguri
Ladhani case, the 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 fo
this Tribunal is directed to allow the
claimant to withdraw the amount without
producing
the
certificate
from
the
concerned Income-Tax Authority. (Para
14)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. NICL Vs Pranay Sethi (2014) 4 TAC 637 SC

2. Sarla Verma & ors. Vs DTC (2009) 2 TAC
667(SC)]

3. Kurvan Ansari @ Kurvan Ali & anr. Vs Shyam
Kishore Murmu & anr. (2021) 4 TAC SC

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

5. Smt Hansaguri P. Ladhani Vs The Oriental
Ins. Co. Ltd 2007(2) GLH 291

6. Bajaj Allianz Gen. Ins. Co. Pvt. Ltd Vs U.O.I.
& ors.

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

1. By way of this appeal, the appellant
has challenged the judgment and order
dated 30.11.1995 passed by Motor Accident
Claims Tribunal / 1st Additional District
Judge, Firozabad (hereinafter referred to as
''Tribunal') in M.A.C.P. No. 38 of 1992
(Radhey Shyam and others Vs. Qamar
Uddin and others) awarding a sum of
Rs.4,34,000/- as compensation to the
claimants/appellants with interest at the rate
of 12% per annum from the date of filing
the claim petition.

2. Heard Mr. Madhav Jain, learned
counsel for the appellant. This appeal is of
the year 1994, the National Insurance Co.
Ltd./respondent has chosen not to appear in
this case. This Court has no other option
but to conduct the matter ex parte.

3. The brief facts of the case are that
claimants-appellants filed a Motor Accident
Claim Petition before the Tribunal for
claiming the compensation under Motor
Vehicles Act, 1988 for the death of Rakesh
Gupta in a road accident with the
averments that on 13.9.1991, Rakesh
Gupta-deceased was going towards railway
station by his scooter, at that time bus
bearing no. 81/1027 was coming from
opposite side, which was being driven very
rashly and negligently by its driver. The
aforesaid bus being driven in such a
manner dashed deceased's scooter. In this
accident, deceased sustained very serious
injuries and died during the treatment in the
S.N. Hospital, Firozabad.

4.
Aggrieved
mainly
with
the
compensation awarded, the appellants have
preferred this appeal.

5. The accident is not in dispute. The
issue of negligence has attained finality as
neither the Insurance Company nor the
owner of the vehicle has disputed the same
even in oral submissions. The driver of the
6 All. Radhey Shyam Gupta & Ors. Vs. Qamar Uddin & Anr.
157
said vehicle was having valid and effective
driving licence on the date of accident is
also a decided fact. The vehicle being
insured and there being no breach of policy
condition is a finding, which has attained
finality. The only issue to be decided is the
quantum of compensation awarded by the
Tribunal.

6. Learned counsel for the appellantsclaimants has submitted that the learned
Tribunal has not added any amount towards
future loss of income, which is bad on facts
and has not granted any amount under the
head of non pecuniary damages.

7. The income of the deceased can be
considered to be Rs.1,000/- per month as
considered by learned Tribunal. The
income of Rs.1,000/- cannot be found fault
with in the year of accident i.e. 1991 of a
person, who was a bachelor doing business
in a small village, therefore, submission
that the income should be considered at
Rs.4,000/-
cannot
be
accepted.
The
deceased will fall within the category of
self employed and his age was in the age
bracket of 21-25 years at the time of
accident, hence, 40% of income shall be
added towards future loss of income and
1/2 shall be deducted for personal expenses
as held by Hon'ble Apex Court in National
Insurance Company vs. Pranay Sethi
[2014 (4) TAC 637 (SC)]. Keeping in view
the age of the deceased, multiplier of 18
will be admissible in the light of the
judgment of Hon'ble Apex Court in the case
of Smt.Sarla Verma vs. Delhi Transport
Corporation [2009 (2) TAC 677 (SC)].

8. As far as non-pecuniary damages
are concerned, the Tribunal has not
awarded any sum towards non pecuniary
damages. In the light of Judgment in the
case
of
Pranay
Sethi
(supra),
parents/claimants shall be entitled to get
Rs.30,000/- for loss of consortium in the
light of the judgment of Hon'ble Apex
Court in the case of Kurvan Ansari alias
Kurvan Ali and another vs. Shyam
Kishore Murmu and another [2021 (4)
TAC (SC)].

9.
Hence,
the
total
amount
of
compensation, in view of the above
discussions, payable to the appellantsclaimants is being computed herein below:

(i) Annual Income : Rs.12,000/-
Per annum (Rs.1,000 X 12)

(ii) Percentage towards future
prospects 40% : Rs. 4,800/-

(iii) Total income : Rs. 12,000/- +
Rs.4,800/- = Rs. 16,800/-

(iv) Income after deduction 1/2 :
Rs.16,800/- - Rs.8,400/- = Rs.8,400/-

(v) Multiplier applicable : 18

(vi) Loss of Dependency : Rs.
8,400/- X 18 = Rs.1,51,200/-

(vii) Amount under non pecuniary
head : Rs. 30,000/-

(viii)
Total
compensation
:
Rs.1,51,200/-
+
Rs.30,000/-
=
Rs.1,81,200/-

10. As far as issue of rate of interest is
concerned,
the
interest
of
12%
is
maintained. However, from the date of
filing of claim petition, on the enhanced
amount interest would be 9% from the date
of filing of the claim petition till award and
6% thereafter till deposit of amount.

11. 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 within a period of 12 weeks from
today with interest as directed above. The
158 INDIAN LAW REPORTS ALLAHABAD SERIES
amount already deposited be deducted from
the amount to be deposited.

12. Record and proceedings be sent
back to the Tribunal forthwith. The amount
be paid to the claimants and no amount be
kept in fixed deposit.

13. 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.

14. 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 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. The said decision has also been
reiterated by High Court Gujarat in
R/Special Civil Application No.4800 of
2021 (The Oriental Insurance Co. Ltd. v.
Chief Commissioner of Income Tax (TDS)
decided on 5.4.2022.

15. 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.

16. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private Ltd. v. Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation is to
safeguard the interest of the claimants. As
long period has elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.

Further Order:-

Officers of Insurance Company are
present in other matters for conciliation.
After pronouncement of judgment, the
amount is accepted but the rate of interest
would be flat 6 % per annum, which is
agreed by the parties.

1. Heard learned counsel for the
appellants.

2. The reliefs as prayed for are granted
as the parties have already decided to bury
their dispute after the judgment was passed
ex parte.
6 All. Mirah Pandey Vs. State of U.P. & Ors.
159

3. In the light of the submission made
by
the
counsel
for
the
appellantsapplicants, the following correction is
being made in the order dated 1.3.2023:-

4. "In the sixth line of first paragraph
of the order, in place of Rs.4,34,000/- it
shall be read as Rs.66,000/-.

5. The income of the deceased can be
considered to be Rs.1500/- per month i.e.
Rs.18,000/- per annum, 40% will have to
be added towards future loss of income,
deducted 1/2 towards personal expenses
of the deceased, granted multiplier of 18
and granted Rs.30,000/- towards non
pecuniary damages. Hence the total
amount of compensation in view of above
discussion is being recalculated herein
below:-

(i) Annual Income : Rs.18,000/-
Per annum (Rs.1,500 X 12)

(ii) Percentage towards future
prospects 40% : Rs. 7,200/-

(iii) Total income : Rs. 18,000/- +
Rs.7,200/- = Rs. 25,200/-

(iv) Income after deduction 1/2 :
Rs.25,200/- ? Rs12,600/- = Rs.12,600/-

(v) Multiplier applicable : 18

(vi) Loss of Dependency : Rs.
12,600/- X 18 = Rs.2,26,800/-

(vii) Amount under non pecuniary
head : Rs. 30,000/-

(viii)
Total
compensation
:
Rs.2,26,800/-
+
Rs.30,000/-
=
Rs.2,56,800/-

6. In view of above, the correction
application is allowed.
----------
(2023) 6 ILRA 159
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.06.2023
BEFORE

THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 67 of 2023

Mirah Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Manushresth Misra, Sushil Kumar Singh

Counsel for the Respondents:
G.A., Manoj Kumar Misra

The Constitution of India, 1950-Article226- Habeas Corpus- While deciding the
matter of custody of children, primary and
paramount consideration is welfare of the
children
so
demands
then
technical
objections cannot come in the way.
However, while deciding the welfare of
the children it is not the view of one
spouse alone which has to be taken into
consideration. The courts should decide
the issue of custody only on the basis of
what is in the best interest of the children.
A child, especially a child of tender years
requires the love, affection, company,
protection of both parents. This is not only
the requirement of the child but is his/her
basic human right. Just because the
parents are at way with each other, does
not mean that the child should be denied
the care, affection, love or protection of
any one of the two parents- In the
interest of Justice as the welfare love
affection company protection is in the
custody of the father-Visitation rights
granted to mother- Petitioner is at liberty
to approach the appropriate forum for
claiming the custody of the children under
the Hindu Minority and Guards Act 1956 or
under the Guardians and Wards Act,
1890.(Para 19, 27 & 28) (E-15)

List of Cases cited:

1. Nithya Anand Raghvan v St. (NCT of Delhi) &
anr.2017 8 SCC 454