# Raghuraj Singh v. Gyan Singh & Ors

- **Citation:** (2022) 4 ILRA 645
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-08
- **Case number:** First Appeal From Order No. 3381 of 2003
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghuraj-singh-v-gyan-singh-ors-48284
- **Pages:** 7

## Headnote

646 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Torts Law - Motor Vehicle Act,1988 -
quantum
of
compensation
-
'justcompensation' - Hindu Succession Act,
1956 - class-1 heir - mother of the
deceased - Although, the deceased had
not
joined
service,
yet
the
salary
mentioned in the appointment-letter even
if it cannot be made sole basis of
assessment of income of the deceased,
but it can certainly be viewed to assess
the potentiality of the deceased person to
earn - compensation shall also be granted
to the claimants for 'future loss of income'
also - multiplier shall be granted on the
basis of the age of the deceased .(Para -
2,8,9,10,20)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 106 - Burden of proving
fact
especially
within
knowledge
-
whether any driver of the vehicle was
having a valid driving-licence or not is the
fact, which is in 'special-knowledge' of the
driver - burden to prove the fact of valid
driving-licence
always
lie
on
the
driver.(Para - 19,20)

Appellant (father of deceased) filed claim
petition - seeking compensation - death of his
unmarried son in a road accident - awarding
sum of Rs.9,62,000/- as compensation to the
claimants - interest at the rate of 6% per
annum
-
aggrieved
-
filed
appeal
for
enhancement of compensation - failure of
offending truck-driver to produce his drivinglicence before Tribunal.(Para - 3,5,16)

HELD:-Total
compensation
payable
to
appellants and daughters of the deceased
Rs.23,98,000/- . Direction to respondent No.3
to deposit entire amount with interest @
7.5% per annum from the date of filing of the
claim petition till amount is deposited. Owner
and driver of offending truck failed to prove
that truck-driver was having valid drivinglicence on the date of accident. Court direct
that amount of compensation shall be paid by
respondent No.2- and after that, it will be
open to the Insurance Company to recover
the amount, paid, from the owner of the
truck. (Para - 12,15,22 )

Appeal partly allowed. (E-7)
List of Cases cited:-

## Text

4 All. Raghuraj Singh Vs. Gyan Singh & Ors.
645
fixing the rate of interest as 7.5% in the
light of the above judgment.

15. In view of the above, these
appeals are partly allowed. Judgment and
award passed by the Tribunal shall stand
modified to the aforesaid extent. The
respondent-Insurance
Company.
shall
deposit the amount within a period of 08
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.

16. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani vs. The
Oriental
Insurance
Company
Ltd.,
[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.

17. 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.

18. While parting the request to
Registrar General to show our concerned to
the learned Tribunal about the method in
which the matters were decided. We
request the Tribunal in the State to
consolidate the matter given consolidated
the judgment and award in matters there
were more than two claim petitions.

19. We request the Registrar General
to send the copy of this order to the learned
Tribunal so that in future he may more
cautious.
----------
(2022)04ILR A645
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.04.2022

BEFORE

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

First Appeal From Order No. 3381 of 2003

Raghuraj Singh ...Appellants
Versus
Gyan Singh & Ors. ...Respondents

Counsel for the Appellants:
Sri Y.S. Bohra

Counsel for the Respondents:
Sri Pradeep Kumar Sinha, Sri Arvind Kumar
646 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Torts Law - Motor Vehicle Act,1988 -
quantum
of
compensation
-
'justcompensation' - Hindu Succession Act,
1956 - class-1 heir - mother of the
deceased - Although, the deceased had
not
joined
service,
yet
the
salary
mentioned in the appointment-letter even
if it cannot be made sole basis of
assessment of income of the deceased,
but it can certainly be viewed to assess
the potentiality of the deceased person to
earn - compensation shall also be granted
to the claimants for 'future loss of income'
also - multiplier shall be granted on the
basis of the age of the deceased .(Para -
2,8,9,10,20)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 106 - Burden of proving
fact
especially
within
knowledge
-
whether any driver of the vehicle was
having a valid driving-licence or not is the
fact, which is in 'special-knowledge' of the
driver - burden to prove the fact of valid
driving-licence
always
lie
on
the
driver.(Para - 19,20)

Appellant (father of deceased) filed claim
petition - seeking compensation - death of his
unmarried son in a road accident - awarding
sum of Rs.9,62,000/- as compensation to the
claimants - interest at the rate of 6% per
annum
-
aggrieved
-
filed
appeal
for
enhancement of compensation - failure of
offending truck-driver to produce his drivinglicence before Tribunal.(Para - 3,5,16)

HELD:-Total
compensation
payable
to
appellants and daughters of the deceased
Rs.23,98,000/- . Direction to respondent No.3
to deposit entire amount with interest @
7.5% per annum from the date of filing of the
claim petition till amount is deposited. Owner
and driver of offending truck failed to prove
that truck-driver was having valid drivinglicence on the date of accident. Court direct
that amount of compensation shall be paid by
respondent No.2- and after that, it will be
open to the Insurance Company to recover
the amount, paid, from the owner of the
truck. (Para - 12,15,22 )

Appeal partly allowed. (E-7)
List of Cases cited:-

1. Meena Pawaia & ors. Vs Ashraf Ali & ors.,
2021 LawSuit (SC) 743

2. Munna Lal Jain Vs Vipin Kumar Sharma, 2015
(3) TAC 1 (SC)

3. Smt.Sarla Verma Vs Delhi Transport Corp. &
ors., 2009 (2) TAC 677 (SC)

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

5. Ravindra Kumar Sharma Vs St. of Assam &
ors., 1999 (8) Supp.62

6. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Company Ltd., 2007(2) GLH 291
7. Smt. Sudesna & ors. Vs Hari Singh and
another, F.A.F.O. No.23 of 2001

8. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd., F.A.F.O. No.2871 of
2016

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

1. By way of this appeal, the
claimants have challenged the judgment
and award dated 15.11.2003 passed by
Motor Accident Claims Tribunal/ District
Judge, Gautam Budh Nagar (herein after
referred to as ''Tribunal') in M.A.C.P.
No.211 of 2001 (Shri Raghuraj Singh vs.
Gyan Singh and others) awarding sum of
Rs.9,62,000/- as compensation to the
claimants with interest at the rate of 6% per
annum.

2. At the very outset, it is relevant to
mention that the claim petition was
instituted by his father on account of death
of a unmarried boy, who met with a roadaccident. Initially, the mother of the
deceased was not made party before the
learned Tribunal though she was and is still
alive. She being the class-1 heir as per
Hindu Succession Act, 1956, should have
4 All. Raghuraj Singh Vs. Gyan Singh & Ors.
647
been made party as claimant. It was on the
face of record before the learned Tribunal
that mother of the deceased was alive even
though the learned Tribunal did not take
pain to call upon the claimant to implead
the mother as a party. Claim petition was
decided in favour of claimant. Now at the
time of hearing this appeal, we pointed out
the aforesaid fact to the parties and on our
behest, appellant/claimant made the mother
of the deceased as party/claimant in the
memo of appeal.

3. The brief facts of the case are that
appellant Raghuraj Singh (father of the
deceased) filed a claim petition before
learned Tribunal for seeking compensation
on account of death of his unmarried-son in
a road accident. It is averred in petition that
on 24.5.2001, the deceased, namely,
Vaibhav Talan, was going to Lucknow
from Kanpur in a car bearing No.UP-78AC/9288. He was sitting on the back-seat.
At about 2:30 p.m., when the aforesaid car
reached near Sainik School Pulliya, within
the jurisdiction of Police Station-Sarojini
Nagar, Lucknow, a truck bearing No.UP78/9655 coming from backside at a very
high-spead, driven rashly and negligently
by its driver dashed against the car. In the
accident, deceased sustained fatal injuries
and died.

4. Heard Shri Y.S.Bohra, learned
counsel for the appellant-claimant and Shri
Pradeep Kumar Sinha, learned counsel for
the respondents. Perused the record.

5. The accident, in this case, is not in
dispute. The liability of respondent No.2Insurance Company is not in dispute.
Finding
of
negligence
is
also
not
challenged. The claimant/appellants have
filed the appeal for enhancement of
compensation while during the course of
arguments, the Insurance Co. has orally
objected to the finding, arrived at by
learned Tribunal regarding Issue No.3,
which relates to the driving-licence of the
truck-driver.

6. Hence, apart from the finding
regarding the driving licence of the truckdriver, it remains the issue of quantum of
compensation. Learned counsel for the
appellants submitted that the deceased was
a boy of 24 years only. He had passed
M.B.A. from Jamuna Lal Bajaj Institute of
Management, Mumbai, and had secured the
job in Ranbaxy Company and he had to
join on 1st June, 2001, i.e., just after a
week of this unfortunate accident. Learned
counsel further submitted that a copy of the
aforesaid appointment-letter is filed on
record, which also shows that his salary
was fixed more than Rs.20,000/- per
month, but learned Tribunal ignored this
fact and assessment of his monthly income
was met on the basis of his basic-salary
only.

7. Per contra, Shri Sinha, learned
counsel appearing on behalf of Insurance
Company, has submitted that the deceased
had not joined the service, therefore, the
salary mentioned in appointment-letter
cannot be taken into account for calculation
of compensation. He elaborates that at the
time of death, the deceased was not
earning, hence notional income should be
taken.

8. We are unable to concur with the
above submission of by Shri Sinha, learned
counsel
appearing
for
the
Insurance
Company. It is a fact that the deceased had
yet not joined the service in pursuance of
his appointment-letter, but this Court
cannot ignore the fact that only a week was
left for him to join when the deceased met
648 INDIAN LAW REPORTS ALLAHABAD SERIES
with the accident and lost his life. In such a
situation, learned Tribunal should have
analyzed the aspect of potentiality of the
deceased to earn as the claimants are
entitled to 'just-compensation'. Tribunal has
committed an error in presuming the
monthly income of the deceased at
Rs.10,000/- on the basis of basic-salary
from his appointment-letter. The deceased
had graduated from a reputed management
institute and had secured appointment in a
prestigious
company
like
Ranbaxy.
Therefore, looking to the educational
qualification and the family-background,
the deceased was having a bright future.
Although, the deceased had not joined
service, yet the salary mentioned in the
appointment-letter even if it cannot be
made sole basis of assessment of income of
the deceased, but it can certainly be viewed
to assess the potentiality of the deceased
person to earn as held by Hon'ble Apex
Court in Meena Pawaia and others vs.
Ashraf Ali and others, 2021 LawSuit (SC)
743. Hence, we are unable to subscribe to
the submission of Insurance Company that
notional income of the deceased should be
considered.
Keeping
in
view
the
potentiality of the deceased to earn on the
basis of above appointment order, we hold
the income of the deceased at Rs.15,000/-
per month.

9. Hon'ble Apex Court in National
Insurance Co. vs. Pranay Sethi and others,
2017 LawSuit (SC) 1093 has held that
compensation shall also be granted to the
claimants for 'future loss of income' also. In
case of salaried or self-employed persons
or on a fixed wages. This case law is
further extended by Hon'ble Apex Court in
Meena Pawaiya (supra) to the deceased,
who was not serving at the time of accident
and had no income at the time of death and
held that legal heirs of such person shall
also be entitled to future prospects by
adding future-rise in income, i.e., addition
of 40% of the income determined on guesswork
considering
the
educational
qualification,
family-background,
etc.,
where the deceased was below the age 40
years. In the case on hand, the age of the
deceased was 24 years. The deceased was
well educated and about to join service
after a week of the accident, hence in the
light of the aforesaid observations of
Hon'ble Apex Court, 40% shall be added to
the income of the deceased for future
prospects.

10. Learned Tribunal has committed
gross-error in not deducting any sum
towards personal expenses of the deceased.
It is an admitted fact that the deceased was
unmarried person, therefore, as per the
judgment of Hon'ble Apex Court in Munna
Lal Jain vs. Vipin Kumar Sharma, 2015
(3) TAC 1 (SC), learned Tribunal has
applied multiplier of 8 only on the basis of
age of the father. According to the decision
in Munna Lal (supra), the multiplier shall
be granted on the basis of the age of the
deceased. Therefore, keeping in view the
age of the deceased, namely, 24 years,
multiplier of 18 will be applicable in light
of the decision of Hon'ble Apex Court titled
Smt.Sarla Verma vs. Delhi Transport
Corporation and others, 2009 (2) TAC 677
(SC).

11. Learned Tribunal has awarded
only Rs.2,000/-for funeral expenses and no
other amount is awarded under the head of
non-pecuniary damages, which could not
be done. Hence, we hold that as per the
judgment of Hon'ble Apex Court in Pranay
Sethi (supra), appellants shall be entitled to
Rs.15,000/-
for
loss
of
estate
and
Rs.15,000/-
for
funeral
expenses.
Appellants are father and mother of the
4 All. Raghuraj Singh Vs. Gyan Singh & Ors.
649
deceased, who lost their young-son at his
age of just 24 years, therefore, both of them
shall be entitled to filial consortium of
Rs.50,000/- each for loss of love and
affection.

12. Hence, the total compensation
payable to the appellants and daughters of
the deceased as per the discussion above is
recomputed herein below:

i.
Annual
Income
Rs.15,00
0/- x 12
Rs.1,80,
00/-
ii.
Percentage
towards
FutureProspects
(40%)

Rs.72,0
00/-
iii
.
Total Income
Rs.1,80,
000/- +
Rs.72,00
0/-
Rs.2,52,
000/-
iv
.
Income
after
deduction
of
1/2
Rs.2,52,
000/-
Rs.1,26,
000/-
Rs.1,26,
000/-
v.
Multiplier
applicable
18

vi
.
Loss
of
dependency
Rs.1,26,
000/-
x
18
Rs.22,6
8,000/-
vi
i.
After
adding
Nonpecuniary
Damages
Rs.22,68
,000/- +
Rs.1,30,
000/-
Rs.23,9
8,000/-
vi
ii.
Total
Compensation

Rs.23,9
8,000/-

13. 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."

14. Learned Tribunal has awarded
rate of interest as 6% per annum but we are
fixing the rate of interest as 7.5% in the
light of the above judgment.

15. In view of the above, the appeal is
partly allowed. Judgment and award passed
by the Tribunal is modified to the aforesaid
extent. United India Insurance Company
Limited-respondent No.3 shall deposit the
entire amount within a period of 12 weeks
from today with interest @ 7.5% per
annum 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.

16. Now, there is another issue to be
decided in this appeal with regard to the
failure of offending truck-driver to produce
his driving-licence before the learned
Tribunal. Learned counsel for the Insurance
Company made submission that although
no cross-objection has been filed by him as
per Order XLI, Rule 22, Clause-I. In this
regard, learned counsel has relied on
judgment of Hon'ble Apex Court in
Ravindra Kumar Sharma vs. State of
Assam and others, 1999 (8) Supp.62,
wherein it is held that it is respondents'
650 INDIAN LAW REPORTS ALLAHABAD SERIES
right to attack the adverse finding. Filing of
cross-objection is purely optional and not
mandatory.
Adverse
finding
can
be
attacked
by
the
respondent-defendant
without filing cross-objection. Learned
counsel for the National Insurance Co.Ltdrespondent
No.2
submitted
that
the
offending truck was insured by it, but
during the proceedings before learned
Tribunal, the driver of the truck did not
appear nor filed his driving-licence. Hence,
it is not proved that truck driver was having
a valid driving-licence at the time accident
and this issue is wrongly decided by the
Tribunal. Learned Tribunal held that the
Insurance Co. has taken the plea that the
driver of the truck was not having a valid
driving-licence, therefore, it was the burden
on the shoulders of the Insurance Co. to
prove that truck-driver was not having the
aforesaid licence. We are in full agreement
with the submissions made by learned
counsel appearing on behalf of National
Insurance
Co.-National
Insurance
Co.
Perusal of impugned judgments shows that
Issue-3 was framed by the Tribunal as
under:

"Whether the driver of the offending
vehicle had no vaild driving licence on the
date of accident? If so, its effect?"

17. While deciding the aforesaid
issue, learned Tribunal has held as under:

"No driving-licence has been filed by
the Tribunal as he has not come to
contest it. The plea was taken by the
Insurance Co. Therefore, it was its duty
to have proved it that the driver of the
truck was not having a valid drivinglicence and no such evidence has been
produced. It is for the purpose, who takes
the plea to prove it, but no such evidence
has been given."

18. With the aforesaid finding,
learned
Tribunal
decided
Issue-3
in
negative.

19. Learned Tribunal has opined that
it is for the person, who takes the plea to
prove it, but this is not the law of evidence
everywhere.
Section
106
of
Indian
Evidence Act, 1872, provides as follows:

"106.
Burden
of
proving
fact
especially within knowledge.--When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. Illustrations

(a) When a person does an act with
some intention other than that which the
character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b) A is charged with travelling on a
railway without a ticket. The burden of
proving that he had a ticket is on him."

20. Hence, whether any driver of the
vehicle was having a valid driving-licence
or not is the fact, which is in 'specialknowledge' of the driver. Therefore, burden
to prove the fact of valid driving-licence
always lie on the driver and, therefore, we
are not convinced with the findings given
by
the
Tribunal
on
Issue-3
and,
accordingly, we upturn the said finding and
hold that it is not proved that the driver of
the offending truck was having valid
driving-licence at the time of accident.

21. In view of the above, the appeal
and
oral
cross-objection
are
partly
allowed. Judgment and award passed by
the Tribunal shall stand modified to the
aforesaid extent. The Insurance Company
shall deposit the amount within a period of
8 weeks from today with interest at the rate
of 7.5% from the date of filing of the claim
4 All. Parvendra Kumar Vs. Union of India & Ors.
651
petition till the amount is deposited. The
amount already deposited be deducted from
the amount to be deposited.

22. Since, it is held by us that owner
and driver of the offending truck have
failed to prove that the truck-driver was
having valid driving-licence on the date of
accident,
we
direct
that
amount
of
compensation shall be paid by respondent
No.2-National Insurance Co., Insurance
Company of the offending truck and after
that, it will be open to the Insurance
Company to recover the amount, paid, from
the owner of the truck.

23. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani vs. The Oriental
Insurance Company Ltd., [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.

24. It is made clear that learned
Tribunal has discharged the liability of
respondents 1, 3 and 4. The liability of owner
of the truck, i.e., respondent No.2 cannot be
discharged because the owner of the vehicle
is liable to pay the compensation and
Insurance Company has to indemnify the
liability of the owner. Hence, we upturn the
finding of Tribunal to the extent it discharged
the liability of owner of the truck.

25. It is pertinent to mention that both
the appellants (mother and father of the
deceased) shall get equal amount of enhanced
compensation.

26. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex Court
in Bajaj Allianz General Insurance Company
Privae Ltd. vs. Union of India and others vide
order dated 27.1.2022, as the prupose 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)04ILR A651
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.04.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAJNISH KUMAR, J.

Habeas Corpus Writ Petition No. 5 of 2022
Connected with
Habeas Corpus Writ Petition Nos. 6 of 2022 & 8
of 2022

Parvendra Kumar ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Mishra, Sri Amit Daga