# Raj Kumar Agarwal & Ors v. Ahsan Ali & Ors

- **Citation:** (2022) 5 ILRA 739
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-30
- **Case number:** First Appeal From Order No. 1209 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-agarwal-ors-v-ahsan-ali-ors-48582
- **Pages:** 11

## Headnote

A. Civil Law - Motor Accident Act, 1988 -
Compensation - Deceased was a Director
in a Co. - Non-deduction of Income Tax -
Permissibility
-
Tribunal
applied
the
multiplier of 16 - Validity challenged -
Evaluation of the income of deceased -
Income Tax Return, how far relevant -
Held, the Tribunal has mis-directed itself
in not considering the income tax returns.
Deceased was a director from 01.04.2003
to 30.09.2003. The income tax returns
have to be considered - High Court recomputed the compensation by deducting
income tax from it and by adding 25%
future loss and applying multiplier of 15
and awarded 7.5% interest. (Para 24, 27
and 29)

B. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,
when it can be applied - Negligence
means failure to exercise care towards
others which a reasonable and prudent
person would in a circumstance or taking
action which such a reasonable person
would
not.
Negligence
can
be
both
intentional or accidental though it is
normally accidental - 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. (Para
14)

C. Civil Law - Motor Accident Claim -
Principle of contributory negligence -
Scope and meaning - A person who either
contributes or is co author of the accident
would be liable for his contribution to the
accident having taken place. (Para 15)
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 32)
Appeal partly allowed (E-1)
List of Cases cited:-

## Text

5 All. Raj Kumar Agarwal & Ors. Vs. Ahsan Ali & Ors.
739
intimating the Insurance Company got the
vehicle registered as a vehicle to be used for
commercial purpose; namely, a passenger
vehicle. I am in agreement with the
submission of counsel for insurance company
that as far as the vehicle used as passenger
vehicle is concerned, the premium would be
different. The breach of policy would fall
within the scope of Section 147 of Act, 1988
though not a breach under Section 149 of 1988
Act. There is a breach of policy, a duty is cast
on the subsequent purchaser to convey to the
insurance company any change in the
registration of the vehicle had the owner who
subsequently bought had not converted the
same, this stand taken by the insurance
company could have been rejected but the fact
that the Tribunal did not consider this aspect
from this angle vitiates its direction.

14. The Insurance Company having
deposited the amount as per the order of this
Court, would be at liberty to recovery the same
from both the owners. The reason being it is not
brought on record as to in whose name, the
vehicle stood at the time of accident but it appears
that the present respondent/ new owner who had
got the vehicle registered as a transport vehicle,
must have also got his name registered and,
therefore, the present respondent - owner would
be liable to the insurance company for the
deliberate wrong in not disclosing the fact as
otherwise they would have been liable to pay a
higher premium which they have not paid. Hence,
the submission of counsel for the appellant is
accepted.

15. In the Manuara Khatun Vs. Rajesh
Kumar Singh, AIR 2017 SC 1204, Hon'ble
Supreme Court has held that the deceased who
was traveling in the goods vehicle can be termed
as a gratuitous passenger and not covered under
the insurance policy and, therefore, Insurance
Company is exonerated, but directed to pay the
amount of compensation to claimants with the
right to recover the same from the insured. Similar
view has been taken in the case of Lal Singh
Marabi Vs. National Insurance Co

16. As far as the compensation is
concerned, it cannot be said that the compensation
awarded is on higher side. There is no cross
objection filed by the claimant. The compensation
awarded is without grant of future loss of income
and the amount under non pecuniary damages on
lower side and, therefore, also no interference is
called for.

17. Appeal is partly allowed. Recovery
rights are granted to the appellant.

18. Record be sent back to the Tribunal
forthwith.

19. The insurance company to deposit rest
of the amount if not yet deposited. On deposit of
rest of the amount, the same be disbursed to the
claimants. If the amounts are already deposited,
the same be disbursed to claimant as 30 years
have elapsed from the date of filing of this appeal.
----------
(2022)05ILR A739
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2022

BEFORE

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

First Appeal From Order No. 1209 of 2007
With
First Appeal From Order No. 1266 of 2007

Raj Kumar Agarwal & Ors. ...Appellants
Versus
Ahsan Ali & Ors. ...Respondents

Counsel for the Appellants:
Sri Shailesh Rai, Sri Rishi Bhushan Jauhari
740 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
Sri Manish Kumar Nigam, Sri Vipul Kumar,
Sri Rakesh Bahadur

A. Civil Law - Motor Accident Act, 1988 -
Compensation - Deceased was a Director
in a Co. - Non-deduction of Income Tax -
Permissibility
-
Tribunal
applied
the
multiplier of 16 - Validity challenged -
Evaluation of the income of deceased -
Income Tax Return, how far relevant -
Held, the Tribunal has mis-directed itself
in not considering the income tax returns.
Deceased was a director from 01.04.2003
to 30.09.2003. The income tax returns
have to be considered - High Court recomputed the compensation by deducting
income tax from it and by adding 25%
future loss and applying multiplier of 15
and awarded 7.5% interest. (Para 24, 27
and 29)

B. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,
when it can be applied - Negligence
means failure to exercise care towards
others which a reasonable and prudent
person would in a circumstance or taking
action which such a reasonable person
would
not.
Negligence
can
be
both
intentional or accidental though it is
normally accidental - 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. (Para
14)

C. Civil Law - Motor Accident Claim -
Principle of contributory negligence -
Scope and meaning - A person who either
contributes or is co author of the accident
would be liable for his contribution to the
accident having taken place. (Para 15)
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 32)
Appeal partly allowed (E-1)
List of Cases cited:-
1. Daljeet Singh & ors. Vs Hardeep Singh & ors.,
2002 (1) TAC 613 (MP)
2. Suchitra Sinha & ors. Vs Baij Nath & ors.,
2005 (3) TAC 533 (M.P.)
3. Smt. Indraneerja Durari Vs Madras Motor and
General As. Co. & ors.; ACC 1996 (1) SC 335
4. Gurmeet Vs Mohinder Singh & ors. TAC 2006
(3) 958 of Punjab & Haryana High Court
5. U.P.S.R.T.C Vs Mamta & ors..; 2016 AIR SC
948
6. First Appeal From Order No. 1818 of 2012;
Bajaj Allianz General Insurance Co.Ltd. Vs Smt.
Renu Singh & ors. decided on 19.7.2016
7. Khenyei Vs New India Assurance Co. Ltd. &
ors.; 2015 LawSuit (SC) 469
8. Sangita Arya & ors. Vs Oriental Insurance Co.
Ltd. & ors.; 2020 LawSuit (SC) 432
9. Rukmani Jethani & ors. Vs Gopal Singh & ors.
2021 (4) T.A.C. 23 (SC)
10. Vimal Kanwar & ors. Vs Kishore Dan & ors.
2013 (3) T.A.C. 6 (S.C.)
11. Kirti & anr. etc. Vs Oriental Insurance Co.
Ltd.; 2021 AIR SC 353
12. National Insurance Co. Ltd. Vs Pranay Sethi
& ors. 2017 LawSuit (SC) 1093
14. National Insurance Co. Ltd. Vs Mannat Johal
& ors. 2019 (2) T.A.C. 705 (S.C.)
15. A.V.Padma Vs Venugopal; 2012 (1) GLH
(SC) 442
5 All. Raj Kumar Agarwal & Ors. Vs. Ahsan Ali & Ors.
741
16. Smt. Hansaguri P. Ladhani Vs The Oriental
Insurance Co.Ltd.; 2007(2) GLH 291
17. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs U.O.I. & ors. of the Apex Court decided on
27.1.2022
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. These appeals have been preferred
against the judgment and award dated
27.01.2007 passed by Motor Accident
Claims Tribunal/Additional District Judge,
Court No.8, Shahjahanpur (hereinafter
referred to as ''Tribunal') in M.A.C.P. No.
200 of 2003 (Raj Kumar Agrawal and
Others Vs. Ahsan Ali and Others), whereby
the claim petition of the claimants was
allowed
and
awarded
a
sum
of
Rs.9,69,500/- as compensation to the
claimants with interest at the rate of 6% per
annum.

2. Heard Mr. R.B. Jauhari, learned
counsel for the claimants-appellants and
Mr. Rakesh Bahadur, learned counsel for
the
Insurance
Company.
None
has
appeared for the owner, when the matter is
taken up for final disposal.

3. The Insurance Company has felt
aggrieved, as also the claimants have felt
aggrieved by the decision of the learned
Tribunal.

4. The claim petition was filed
seeking compensation of Rs.80,00,000/-
with interest at the rate of 12% per annum,
namely from the date of filing of the claim
petition till final payment for the death of
Smt. Rajni Agrawal, wife of claimantappellant no.1 and mother of other minor
children.

5. The brief facts as culled out from the
record and the judgment are that Smt. Rajni
Agrawal wife of Raj Kumar Agrawal, who
was aged about 39 years and averred to be
earning of Rs.40,000/- per month by doing
service, farming and other business. On the
fateful day, when she was going alongwith
Smt. Kanchan Agrawal from Shahjahanpur to
Nanital by car bearing registration no.27 B
8751. The aforesaid car was being driven by
one Awadesh @ Nirdos Kumar Saxena. A
truck bearing registration no. U.P. 22A 9857
being driven very rashly and negligently
came and dashed with the car. The car driver
and both the women sustain injuries.

6. The driver of the car and Smt. Rajani
Agrawal died while they were being taken to
the hospital. The First Information Report
was lodged against the driver of the truck.
The New Indian Insurance Company Ltd. (in
short "Insurance Company") filed its written
statement wherein they denied the averments
made in the claim petition. The Insurance
Company took the plea that the vehicle was
being driven against the policy and there is
violation of the provisions of Motor Vehicles
Act, 1988 and they were not liable to pay any
compensation. They took the plea that there
is no non-impleadment of all the legal
representatives of the deceased. It was
alleged that the deceased was not doing
farming activities and was not engaged in any
job nor she was having any business. It is also
contended that deceased did not die out of the
injuries caused to her in the said accident.
The driver of the car dashed with a unknown
vehicle due to his own negligence and as the
number of the said vehicle could not be
known,
only
with
the
view
to
get
compensation in collusion with the police and
doctors in pre-planed manner and on
concocted grounds, the claim petition was
filed.

7. It was further contended before the
Tribunal that the driver of the car was not
742 INDIAN LAW REPORTS ALLAHABAD SERIES
having valid driving licence nor there was
any valid registration certificate nor other
valid papers. It is also avert that the
Insurance Company is not liable to pay any
amount as the driver of the truck had no
endorsement and could not have driven the
vehicle. The opposite party no.5, Satya
Narain Agrawal has also filed his reply
admitting the averments made in the claim
petition. The vehicle was insured with
United India Insurance Company Ltd. on
the day of the accident. The legal heirs of
the owner of the car have been substituted.
The Insurance Company also took the plea
of denial. The respondent nos.1 to 3 did not
file any reply, therefore, the matter came be
heard against them ex parte by Tribunal.
The learned Tribunal framed about four
issues.

8. The petitioners filed list of certain
documentary
evidences.
No
oral
or
documentary evidence has been led on
behalf of any of opposite parties.

9. The Insurance Company has felt
aggrieved by the decision dated 27.01.2007
contending that the same is against the
evidence on record and requires to be set
aside. It is also submitted that the husband
of the deceased was earning person and,
therefore, he would not be entitled to get
any compensation for death of his wife.
The learned counsel for the Insurance
Company has relied on the decision of
Madhya Pradesh High Court titled Daljeet
Singh and Others Vs. Hardeep Singh and
Others, 2002 (1) TAC 613 (MP) that
earning
husband
cannot
claim
any
compensation on basis of dependency on
death of his wife in accident. The main
contention is that husband was not entitled
to get any amount and the income of the
deceased was not proved. Learned counsel
for the Insurance Company has also relied
on the decision of Madhya Pradesh High
Court in Suchitra Sinha and Others VS.
Baij Nath and Others, 2005 (3) TAC 533
(M.P.), so as to contend that income tax
return could not have been considered to
decide the income of deceased. The
Insurance Company has also challenged the
findings on the issue of negligence. A plea
is taken that in view of the aforesaid
judgment, the learned Tribunal should have
applied multiplier of 13 and not 16 and also
should have gone by the schedule of Motor
Vehicles Act, 1988.

10. The contentions and challenge as
culled out from the grounds of appeal
raised by the Insurance Company are that
one of the claimants namely husband was
not dependent on his wife, therefore, he
was not entitled to any compensation on
account of dependency, for which, learned
counsel for the Insurance Company has
relied on the decision of Suchitra Sinha
(Supra), so as to contend that the learned
Tribunal has committed an error by not
deducting 50% for her personal expenses as
the other dependents were minor children.
It is also submitted that husband of the
deceased himself was earning Rs.35,000 to
40,000/- per month and he has re-married
during the pendency of litigation. It is
further submitted that assessment years of
income tax returns were for the period
subsequent to the death of the deceased
namely 2003-04 was not admissible in
evidence as per the judgment of Suchitra
Sinha (Supra).

11. The next ground for assailing the
judgment by Insurance Company of learned
Tribunal is based on the fact that the driver
of the car was also contributor to the
accident and they were liable to be joined
as party and, therefore, the said amount
should be deducted, for which, learned
5 All. Raj Kumar Agarwal & Ors. Vs. Ahsan Ali & Ors.
743
counsel for the Insurance Company has
relied on the judgment of Smt. Indraneerja
Durari Vs. Madras Motor and General As.
Co. & Others, ACC 1996 (1) SC 335 and
Gurmeet VS. Mohinder Singh and Others,
TAC 2006 (3) 958 of Punjab and Haryana
High Court.

12. In view of the judgment of
U.P.S.R.T.C Vs. Mamta And Ors., 2016
AIR SC 948, wherein it has been held that
all the issues raised by the court of appeal,
when appeal under Section 173 of M.V.
Act is filed, hence, we are go to decide
each ground raised. We would first deal
with the issue of negligence raised by the
counsel for the Insurance Company.

13. The main two grounds urged by
the Insurance Company for assailing the
award as quantum and negligence. At the
outset, it is clear that no issues which could
be taken for avoidance of policy are urged
even in written grounds of appeal. None of
the principles enunciated for avoidance of
policy as averred before the Tribunal. The
driver of the truck was having valid driving
licence. There was no technical or other
breach for which the Insurance Company
could avoid its liability and said findings
have attained finality.

Appeal of Insurance Company
being F.A.F.O. No. 1266 of 2007.

Issue of negligence rather
contributory
negligence:-
The
submission
of
learned
counsel
for
Insurance Company that driver in which
deceased
was
travelling
was
also
negligent and the amount qua his
negligence be deducted is taken for
discussion as to whether finding of
Tribunal requred to be interfered or
concurred even if interfered what would
be the consequence payable to legal
representatives of deceased.

14. The term negligence means
failure to exercise care towards others
which a reasonable and prudent person
would in a circumstance take or taking
action which such a reasonable person
would not. Negligence can be both
intentional
or
accidental
which
is
normally accidental. More particularly, it
connotes reckless driving and the injured
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 in accident
cases involving vehicles of different
magnitudes or single vehicle.

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

16. 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
744 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
5 All. Raj Kumar Agarwal & Ors. Vs. Ahsan Ali & Ors.
745
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."

17. The term contributory negligence
has to be viewed in light of term composite
negligence. The Apex Court in Khenyei Vs.
New India Assurance Company Limited &
Others, 2015 LawSuit (SC) 469 where the
court has explained the term contributory
and composite and liability of fortuitous
wherein the court has held as under:

"4. It is a case of composite
negligence where injuries have been
caused to the claimants by combined
wrongful act of joint tort feasors. In a case
of accident caused by negligence of joint
tort feasors, all the persons who aid or
counsel or direct or join in committal of a
wrongful act, are liable. In such case, the
liability is always joint and several. The
extent of negligence of joint tort feasors in
such a case is immaterial for satisfaction of
the claim of the plaintiff/claimant and need
not be determined by the by the court.
However, in case all the joint tort feasors
are before the court, it may determine the
extent of their liability for the purpose of
adjusting inter-se equities between them at
appropriate stage. The liability of each and
every joint tort feasor vis a vis to
plaintiff/claimant cannot be bifurcated as it
is joint and several liability. In the case of
composite negligence, apportionment of
compensation between tort feasors for
making payment to the plaintiff is not
permissible as the plaintiff/claimant has the
right to recover the entire amount from the
easiest targets/solvent defendant."

18. As far as the claimants are
concerned, the death of the wife/mother can
be said to be out of the accidental injuries.
Even if we consider the negligence, it
would be composite negligence qua the
legal heirs. The findings of fact as far as
issue of negligence is concerned, goes to
show that the accident occurred in morning
at 6:30 AM on the national highway
involving a truck and a car. The driver of
the truck applied short break by which the
truck dashed with the car and the car came
under the truck (car truck ke niche dab
gayi). The two ladies and driver got
injured. The charge sheet and the FIR were
lodged against the driver of the truck. The
car was being driven by one Awadesh. The
driver and wife of P.W.-1 died on the spot.
The oral testimony of P.W.-2, Kanchan
Agrawal who was in the car and was
injured eye witness has categorically
deposed that driver of truck was negligent.
The truck driver was drives the truck in
rash and negligent manner. The submission
of learned counsel for the Insurance
746 INDIAN LAW REPORTS ALLAHABAD SERIES
Company that truck loaded with patatos
cannot be driven in a rash and negligent
manner cannot be accepted and, therefore,
we concur with the finding of the learned
Tribunal as far as the negligence is
concerned. As far as the submission that
the husband cannot be granted any amount,
we would be dealing with the same in the
appeal preferred by the claimants, when we
decide the same.

Compensation
in
Appeal
No.1209 of 2007.

19. It is submitted by learned
counsel for the claimants that the income
of the deceased was Rs.32,000/- per
month (rounded figure) but the Tribunal
has wrongly considered income to be
Rs.7,500/- only. It is submitted that the
learned Tribunal has brushed aside the
Income Tax Returns. Learned counsel for
the claimants has relied on the decisions
in (a) Sangita Arya & Ors. Vs. Oriental
Insurance Co. Ltd. & Ors., 2020
LawSuit (SC) 432, (b) Rukmani Jethani
and Others Vs. Gopal Singh and others,
2021 (4) T.A.C. 23 (SC), (c) Vimal
Kanwar and Others Vs. Kishore Dan
and others, 2013 (3) T.A.C. 6 (S.C.) to
buttress his submission that the finding of
the Tribunal as far as income of deceased
is
concerned
is
bad
and
requires
reconsideration.

20.
Learned
counsel
for
the
claimants-appellants has relied on the
judgment of Kirti and another etc. Vs.
Oriental Insurance Company Ltd., 2021
AIR
SC
353
to
claim
higher
compensation.

21.
Learned
counsel
for
the
claimants has further submitted that the
deceased was survived by her husband
and two minor children and, therefore,
the deduction towards personal expenses
would be 1/3rd as held by the Tribunal.

22. It is also submitted by learned
counsel for the claimants that the amount
awarded under non pecuniary damages is
on the lower side and is required to be
enhanced in view of the decision in
National Insurance Co. Ltd. Vs. Pranay
Sethi and others, 2017 LawSuit (SC)
1093 and the later decision of the Apex
Court. Learned counsel for the claimants
has lastly submitted that the interest
awarded by Tribunal is on the lower side
and it should be as per the repo rate
prevailing in those days.

23. As against this, learned counsel
for Insurance Company has contended that
the income which is claimed cannot be
granted. It is further submitted by learned
counsel for the Insurance Company that
deduction towards personal expenses is just
and
proper
and
does
not
call
for
interference of this Court. It is also
submitted by learned counsel for the
Insurance Company that the amount
awarded under non pecuniary heads and
interest granted by the Tribunal are just and
proper and does not call for interference of
this Court. It is further submitted and
reiterated that deduction for personal
expenses should 1⁄2 as her husband was not
dependent on the deceased.

24. Having heard learned counsels for
the parties and considering the income tax
returns and the decisions cited by the learned
counsel for the claimants, we hold that had
the deceased been alive, she would have been
earning Rs.32,060/- per month. The deceased
was Director in a Company. However, we are
in agreement with learned counsel for the
respondent that from the income, at least
5 All. Raj Kumar Agarwal & Ors. Vs. Ahsan Ali & Ors.
747
Income Tax should be deducted and,
therefore, we consider the income of the
deceased to be Rs.30,000/- per month.
Addition of 25% toward future loss of
income is granted and multiplier of 16
granted by the Tribunal is reduced to 15. As
far as deduction towards personal expenses of
the deceased is concerned, we are in
agreement with learned counsel for the
Insurance Company that it should be 1/2nd.
Learned Tribunal has not considered the
income tax returns. As according to the
Tribunal, the income tax returns were dated
31.07.2002. Subsequently, the return dated
14.09.2003 also Rs. 32,000/- was deducted
towards income tax. The learned Tribunal has
mis-directed itself in not considering the
income tax returns. Deceased was a director
from 01.04.2003 to 30.09.2003. The income
tax returns have to be considered. On what
basis, learned Tribunal decided that her
income would be Rs.5,000/- per month
cannot be fathomed by us. The Tribunal has
considered her income of Rs.2,500 that of
agricultural income and Rs.2,500/- for her
utility as a house wife. The finding is without
any basis and we cannot accept the same. The
Tribunal has held as the income tax returns
are even for a period after the accident
occurred, they cannot be accepted as truthful.
The accident occurred on 28.09.2003 and,
therefore, for amounting year as well as tax is
concerned, the income tax return of 2004-05
have to be filled in as her income up to
September have to be considered.

25. We would have granted to the
husband, amount for loss of love and
affection of the wife but he has re-married
and the learned Tribunal has also not
apportioned or granted any amount. We
uphold the same.

26. As far as amount under nonpecuniary
heads
is
concerned,
the
appellants would be entitled to Rs.70,000/-
plus 10% rise in every three years in view
of the decision of the Apex Court in Pranay
Sethi (Supra) and, therefore, we round up
the figure to Rs.1,00,000/- under this head.

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

i. Monthly Income: Rs.30,000/-

ii. Percentage towards future
prospects : 25% namely Rs.7,500/-

iii. Total income : Rs.30,000
+7,500/- = Rs.37,500/-

iv. Income after deduction of 1⁄2nd
towards personal expenses : Rs.18,750/-

v. Annual income : Rs.18,750 x
12 = Rs.2,25,000/-

vi. Multiplier applicable : 15

vii.
Loss
of
dependency:
Rs.2,25,000 X 15 = Rs.33,75,000/-

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

ix.
Total
compensation
:
Rs.34,75,000/-

28.

Learned
Tribunal
has
unfortunately granted 6% rate of interest,
which was not the repo-rate applicable in
the year of judgment namely 27.01.2007.
At least, it should have been 7% per
annum. 14 years have elapsed, we do not
disturb the same and the rate of interest on
awarded amount is maintained. However,
on the enhanced amount, it would be be
7.5% per annum.
748 INDIAN LAW REPORTS ALLAHABAD SERIES

29. 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."

30. In view of the above, the appeals
filed by claimants as well as Insurance
Company are partly allowed. Award and
decree passed by the Tribunal shall stand
modified to the aforesaid extent. The
respondent-Insurance
Company
shall
deposit the amount within a period of 12
weeks from today with interest at the rate
of 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. The claimants shall furnish their
bank account numbers and on deposit of
amount, the Tribunal shall transfer the
amount to the said accounts.

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

32. 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.

33.

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.

34. The Tribunal shall follow the
guidelines issued by the Apex Court in
5 All. The New India Assurance Co. Ltd. Vs. Amit Kumar Yadav & Ors.
749
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.
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.

35. This Court is thankful to both the
counsels for getting this matter decided.
Record
be
transmitted
to
Tribunal
forthwith.
----------
(2022)05ILR A749
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

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

First Appeal From Order No. 1285 of 2008
AND
First Appeal From Order No. 1489 of 2008

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Amit Kumar Yadav & Anr. ...Respondents

Counsel for the Appellant:
Sri Praful Sahadeva, Sri P. Bahadur, Sri
Rakesh Bhahdur

Counsel for the Respondents:
Sri Bhola Nath Yadav, Sri A, Singh, Sri
Amish Mishra, Sri Mahendra Pratap Singh,
Sri Shiv Nath Singh, Sri Satyam Singh

A. Motor Accident Claim - Role of
Tribunal, while deciding the claim cases -
Distinction
from
other
civil
suits,
explained - The role of the Tribunal is not
a silent spectator when medical evidence
is tendered in regard to the injuries and
their effect, in particular the extent of
permanent disability - Tribunal does not
function as a neutral umpire as in a civil
suit. It is an active explorer and seeker of
truth who is required to hold an enquiry
into the claim for determining 'just
compensation'. (Para 28)

B. Civil Law - Motor Accident Act, 1988 -
Claim
-
Compensation
-
Disability
Certificate,
proof
thereof
-
No
examination of Doctor - Effect - High
Court disapproved the argument that
there is necessity to prove the disability
certificate by calling the doctor when it is
not challenged before the Tribunal. (Para
18)

C. Civil Law - Motor Accident Act, 1988 -
Claim - Compensation - Loss of amenities
- Injured was 21 years unmarried young
boy - He became disabled to the tune of
80% and that too by his legs and he is not
able to sit properly and walk - He has lost
pleasures of life because he cannot lead a
normal life after accident. It is natural
that he had bleak prospects of marriage
and family life - Held, it can be said that
the appellant has lost amenities of life to
the
great
extent,
which
cannot
be
restored at all. Therefore, he would get
Rs. 4,00,000/- for loss of amenities. The
disability of the appellant is permanent.
Under the head of pain, shock and
sufferings, he is entitled to get a sum of
Rs. 1,00,000/- - High Court re-computed
the compensation and awarded 7.5%
interest. (Para 38, 39 and 41)

D. Civil Law - Motor Accident Act, 1988 -
Section 168
- Just compensation
-
Meaning - 'Just' means- fair, reasonable
and equitable amount accepted by legal
standards - 'Just compensation' does not
mean perfect or absolute compensation. It
requires
examination
of
particular
situation obtaining uniquely in individual
case. (Para 21)

E. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,