# Raj Nand Jaiswal & Ors v. New India

- **Citation:** (2021) 10 ILRA 238
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-07
- **Case number:** FAFO No. 269 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-nand-jaiswal-ors-v-new-india-46254
- **Pages:** 6

## Headnote

Sri Sushil Kumar Mehrotra

(A) Quantum of Compensation - Even
though in the year 1990 to 2000, the addition
of future prospects was not ruled out just
because tribunals in U.P. were not granting
future losses. (Para 10)

Appeal Partly Allowed. (E-10)

List of Cases cited:

## Text

238 INDIAN LAW REPORTS ALLAHABAD SERIES
occasion arises, may see whether such
relaxation or dispensation with purely
procedural provision is or is not, necessary
in the welfare of the minor. The welfare of
the minor is also required to be considered,
keeping in view the provisions of Section
17 of the Act, 1890, as also on the
principles, as settled by Hon'ble the Apex
Court, inter alia in the cases of Nil Ratan
Kundu
(supra),
V.
Ravi
Chandran
(supra), Smriti Madan Kansagra (supra).
The
welfare
of
the
minor
requires
consideration also qua, the proposed
guardian. The welfare of the minor if
already determined qua, one guardian
cannot necesarily and automatically be
read, with respect to thenew proposed
guardian, for which the court has to
consider the welfare, keeping in view the
aforesaid.

(iii) Even after rejection of the
application of the appellant, as not
maintainable, the court in exercise of its
parens patriae jurisdiction and in view of
Section 42 of the Act, 1890, should have
proceeded on its own, to appoint the
guardian of the minor, as per law.

51. Section 107 C.P.C. r/w Order 41
Rule 33 C.P.C. provides for the powers of
the appellate court according to which, in
exercise of such powers, the appellate court
may, pass any decree and make any order
which ought to have been passed or made.
This Court in exercise of appellate
jurisdiction, passes the following order:-

(i) The order dated 09.09.2021
rejecting the appellant's application B-3,
for the prayer made, as not maintainable,
does not call for any interference.

(ii) The jurisdiction being parens
patriae, as also in view of Section 42 of the
Guardians and Wards Act, 1890, the court
below is directed to proceed of its own
motion to appoint the guardian of minorAryan Singh (respondent no. 2), in
accordance with the provisions of law and
on settled principles as mentioned above.

(iii) The court below shall also
consider and make order for temporary
custody and protection of the person of the
minor, as it thinks proper under Section 12
of the Act, 1890.

52. It shall be open for the appellant,
if so desires, to apply for her appointment
as guardian of the minor under Chapter II
Section 8(a) (b) of the Act, 1890 by filing
application, as per law.

53. It shall also be open for the
District Magistrate, Lucknow in view of
Section 8, (c) & (d) of the Act, 1890 to file
an application for appointment of guardian
of the minor.

54. The appeal is decided finally in
the aforesaid terms.

55. No order as to costs.

56. Let a copy of this judgment be
sent to the learned District Judge, Lucknow
as also the District Magistrate, Lucknow.
----------
(2021)10ILR A238
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 07.09.2021

BEFORE

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

FAFO No. 269 of 2020
10 All. Raj Nand Jaiswal & Ors. Vs. New India Assurance Co. Ltd., Muzaffarnagar & Ors.
239
Raj Nand Jaiswal & Ors. ...Appellant
Versus
New
India
Assurance
Co.
Ltd.,
Muzaffarnagar & Ors. ...Respondents

Counsel for the Appellant:
Sri Siddharth, Sri Manoj Kumar Singh

Counsel for the Respondents:
Sri Sushil Kumar Mehrotra

(A) Quantum of Compensation - Even
though in the year 1990 to 2000, the addition
of future prospects was not ruled out just
because tribunals in U.P. were not granting
future losses. (Para 10)

Appeal Partly Allowed. (E-10)

List of Cases cited:

1. National Insurance Co. Ltd.Vs Pranay Sethi
& ors. 2017 0 Supreme (SC) 1050

2. Jitendra Khimshankar Trivedi & ors. Vs
Kasam Daud Kumbhar & ors. (2015) 4 SCC
237

3.
General
Manager,
Kerala
S.R.T.C.,
Trivandrum Vs Susamma Thomas & ors.
(1994) 2 SCC 176

4. U.P.S.R.T.C. & ors. Vs Trilok Chandra &
ors. (1996) 4 SCC 362

5. Sarla Dixit Vs Balwant Yadav AIR 1996 SC
1274

6. Hardeo Kaur Vs Rajasthan State Transport
Corporation 1992 2 SCC 567

7. Puttamma Vs K.L. Narayana Reddy AIR
2014 SC 706

8. Raman Vs Uttar Haryana Bijli Vitran Nigam
Limited

9. Bijay Kumar Dugar Vs Bidyadhar Dutta
2006 (3) SCC 242

10. R.K. Malik Vs Kiran Pal AIR 2009 SC 2506

11. National Insurance Co. Ltd.Vs Pranay Sethi
AIR 2017 SC 5157

12. Raj Rani Vs Oriental Insurance Co. Ltd. 2009
(13) SCC 654

13. Ritaben alias Vanitaben Wd/o. Dipakbhai
Hariram and Anr. Vs Ahmadabad Municipal
Transport Service & Anr. 1998 (2) G.L.H. 670

14. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors. LL 2021 SC 359

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

16. Smt. Hansaguti P. Ladhani Vs The Oriental
Insurance Co. Ltd. 2007 (2) GLJ 291

17. Smt. Sudesna & ors Vs Hari Singh & Anr.
Review Application No. 1 of 2020 in First Appeal
From Order No. 23 of 2001

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

1. Heard Shri Manoj Kumar Singh,
learned counsel for the appellants; Shri
Sushil Kumar Mehrotra, learned counsel
for the respondents; and perused the record.

2. This appeal, at the behest of the
claimants, challenges the judgment dated
17.7.1999 passed by Motor Accident
Claims Tribunal/VIIth Additional District
Judge/Additional
District
Judge,
Muzaffarnagar (hereinafter referred to as
'Tribunal') in Motor Accident Claim
Petition No.242 of 1997 awarding a sum of
Rs.7,24,500/- with interest at the rate of
12% as compensation.

3. The accident is not in dispute. The
issue of negligence decided by the Tribunal
is not in dispute. The respondent concerned
has not challenged the liability imposed on
240 INDIAN LAW REPORTS ALLAHABAD SERIES
them. The only issue to be decided is, the
quantum of compensation awarded.

4. The appeal is of the year 1999, the
accident took place in the year 1996. In this
appeal we are concerned with the litigation
the legal representatives/heirs of late Suman
Jaiswal during the pendency of this appeal,
the father-in-law and mother-in-law, namely,
grand father and grand mother of the minor
daughter Km. Nainsi Jaiswal passed away.
The recent judgment of the Apex Court has
held that the compensation has to be
computed when the cause of action accrued.

5. It is submitted by learned counsel for
the appellants that the Tribunal has not
granted any amount towards future loss of
income of the deceased which is required to
be granted in view of the decision in
National Insurance Company Limited Vs.
Pranay Sethi and Others, 2017 0 Supreme
(SC) 1050. It is further submitted that amount
under non-pecuniary heads granted and the
interest awarded by the Tribunal are on the
lower side and require enhancement. The
learned counsel submitted which proves that
the income of the deceased was Rs.5000/- per
month as she was a teacher. It is also
submitted that as the deceased was survived
by her daughter and parents and hence the
deduction towards personal expenses of the
deceased should be 1/3 and not 1/2.

6. The multiplier has to be as per the
age of deceased. Learned counsel for the
appellants has cited also relied on judgments
of
the
Apex
Court
(i)
Jitendra
Khimshankar Trivedi and others v.
Kasam Daud Kumbhar and others, (2015)
4 SCC 237.

7.

Learned
counsel
for
the
respondents, has vehemently objected the
contentions raised by the learned counsel
for the appellants and has submitted that
the compensation awarded by the Tribunal
is just and proper and does not call for any
enhancement as the father-in-law and
mother-in-law were not dependent on the
deceased.

8. Having heard the learned counsel
for the parties and considered the factual
data, it is undisputed that the accident
occurred on 23.6.1996 causing death of
Suman Jaiswal who was 38 years of age
and left behind her, in-laws/grandparents of
one minor daughter (now major). The
Tribunal has assessed the income of the
deceased to be Rs.1250/- per month and
has granted notional income. It is submitted
that the claimants were entitled to income
as decided by the Apex Court in Jitendra
Khimshankar Trivedi (Supra) and should
have
granted
just
and
reasonable
compensation. The decision of the Apex
Court considered the accident of the year
1990 whereas in our case, the accident took
place in the year 1996 and therefore, the
income
should
have
been
at
least
Rs.5,000/- per month.

9. The submission that the Tribunal has
not granted any amount towards future loss of
income. Grant of future prospects will have
to be traced back and reference can be had to
the decision in General Manager, Kerala
S.R.T.C.,
Trivandrum
v.
Susamma
Thomas & Ors.,(1994) 2 SCC 176 wherein
addition of future prospects was also
calculated. The decision in Susamma Thomas
(Supra) was referred in U.P.S.R.T.C. & Ors.
v. Trilok Chandra & Ors.(1996) 4 SCC
362 which have been considered by the Apex
Court in Sarla Dixit Versus Balwant Yadav
AIR 1996 SC 1274 and the Apex Court has
considered decision in Hardeo Kaur V/s.
Rajasthan State Transport Corporation,
1992 2 SCC 567. The decision in Sarla Dixit
10 All. Raj Nand Jaiswal & Ors. Vs. New India Assurance Co. Ltd., Muzaffarnagar & Ors.
241
has been considered to be good law in (1)
Puttamma Vs. K.L.Narayana Reddy, AIR
2014 SC 706 (2) Raman Vs. Uttar Haryana
Bijli Vitran Nigam Limited, Bijoy Kumar
Dugar Vs. Bidyadhar Dutta, 2006 (3) SCC
242 : (3) Sarla Verma (supra)(4)R.K.Malik
Vs. Kiran Pal, AIR 2009 SC 2506
(5)National Insurance Company Limited
Vs. Pranay Sethi, AIR 2017 SC 5157 Raj
Rani Vs. Oriental Insurance Company
Limited, 2009 (13) SCC 654. We have gone
through the decisions in those days referred
to herein above and the judgment of Gujarat
high court in Ritaben alias Vanitaben
Wd/o. Dipakbhai Hariram and Anr.
v/s.Ahmedabad
Municipal
Transport
Service & Anr., 1998 (2) G.L.H. 670,
wherein, the Court has observed as under:

"para-7: It is settled proposition
of that the main anxiety of the Tribunal in
such case should be to see that the heirs
and legal representatives of the deceased
are placed, as far as possible, in the same
financial position, as they would have
been, had there been no accident. It is
therefore, an action based on the doctrine
of compensation.

para-8:
It
may
also
be
mentioned that perfect determination of
compensation in such tortuous liability is,
hardly,
obtainable.
However,
the
Tribunal is required to take an overall
view of the facts and the relevant
circumstances together with the relevant
proposition of law and is obliged to
award an amount of compensation which
is
just
and
reasonable
in
the
circumstances of the case.

para-10: Even in absence of any
other evidence an able bodied young man
of 25 years, otherwise also presumed to
earn an amount of Rs.1000/- or more per
month, on that basis the prospective
income could be calculated by doubling
the one prevalent on the date of the
accident, which is required be divided by
half, so as to reach the correct datum
figure which is required to be multiplied
by appropriate multiplier. Even taking a
conservative view in the matter, the
deceased would be earning not less than
an amount of Rs.1000/- per month and
considering
the
prospective
average
income of Rs.2000/- and divided by half,
would, obviously come to Rs.1500/."

10. Thus even in year 1990 to 2000,
the addition of future prospects was not
ruled out, just because tribunals in Uttar
Pradesh were not granting future loss, it
cannot hold field where the decision of
Apex Court is otherwise as demonstrated
with decision though of persuasive value of
Gujarat High Court referred herein above
wherefore, the submission of Sri Shukla
that no amount under the head of future
loss of income was admissible in those
days, will have to be considered. The
decision of the Apex Court in New India
Assurance Company Ltd. Vs. Urmila
Shukla and others, LL 2021 SC 359 will
have to be looked into. Therefore, we will
have to consider the same in the light of the
recent decisions as well as the decisions of
the Apex Court prevailing.

11. I n Malarvizhi & Others and
Indiro Devi & Others (Supra), it has been
held that Income Tax is the mirror of one's
income unless proved otherwise. Even in
the earlier days, the factors to be
considered
for
issuing
quantum
of
compensation reads as follows:

i. To give present value, a
reasonable deduction or reduction is
required as lump sum amount is given at a
242 INDIAN LAW REPORTS ALLAHABAD SERIES
stretch under the head of prospective
economic loss;

ii. The tax element is also
required to be considered as observed in
the Gourley's case (1956 AC 185).

iii.
The
resultant
impairment/death on the earning capcity
of the claimant/claimants .

iv. That the amount of interest
is awarded also on the prospective loss of
income.

v.
That
the
amount
of
compensation
is
not
exemplary
or
punitive but is compensatory.

12. Hence, the total compensation
payable to the legal heirs of the deceased in
view of the decision of the Apex Court in
Pranay Sethi (Supra) is computed herein
below:

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

ii. Percentage towards future
prospects : 40% namely Rs.1200/-

iii. Total income : Rs. 3000 +
1200 = Rs.4200/-

iv. Income after deduction of 1/3
: Rs.2800/-

v. Annual income : Rs.2800 x 12
= Rs.33,600/-

vi. Multiplier applicable : 15(as
the deceased was in the age bracket of 3640 years)

vii.
Loss
of
dependency:
Rs.33,600 x 15 = Rs.5,04,000/-
viii. Amount under non pecuniary heads :
Rs.40,000/- for minor child (now major)

ix.
Total
compensation
:
Rs.5,44,000/-.

13. It goes without saying that the
interest as per the repo rates in the year
1996 and the interest payable would be
6%. We would go by the repo rate and
not by Schedule and grant 6% interest as
appeals have remained pending for no
fault of the advocates. The rate of interest
could remain same throughout. The
matter is remain pending since the year
1999, it was also a defective appeal
where there was delay for a period of 20
years. The matter remain pending on the
defective file only in the year 2019, the
appellant
filed
application
for
condonation
of
delay
for
deleting
appellant nos. 1 and 2. The delay was
condoned. Appeal was numbered in the
year 2020 and, therefore, we feel that
interest should be not granted but as it is
the sole surviving the claimant was a
minor, we grant interest at the rate of 6%
as accepting the submission of the
counsel for the respondent that even in
the year 1996, the rate of interest was not
12%, hence his oral submission is
accepted. On the awarded amount from
the date of filing of the claim petition till
the amount is deposited flate rate of 6%
would be admissible.

14. 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 applicant /claimant is
neither illiterate nor rustic villager.
10 All. Neelesh Kumar Agarwal & Ors. Vs. Sanjay Kumar Agarwal & Ors.
243

15. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguti 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.

16. 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
respondent-Insurance
Company
shall
deposit the amount along with additional
amount within a period of 12 weeks from
today with interest at the rate of 9% from
the date of filing of the claim petition till
the amount is deposited and 6% thereafter
as the appeal remain pending for no fault
of either of the parties. The amount
already deposited be deducted from the
amount to be deposited.

17. As far as claimant Nos.2 and 3
are concerned, namely grand-father and
grand-mother have passed away and
hence, the amount be disbursed to the
daughter
(legal
representative
of
deceased) who by now must have attained
majority.

18. This Court is thankful to both
the counsels to see that the matter is
disposed of.

19. Record and proceedings be sent
back to the Tribunal after two weeks.
----------
(2021)10ILR A243
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 17.09.2021 &
07.10.2021

BEFORE

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

FAFO No. 906 of 2008

Neelesh Kumar Agarwal & Ors.
 ...Appellants
Versus
Sanjay Kumar Agarwal & Ors.
 ...Respondents

Counsel for the Appellants:
Sri B. Dayal

Counsel for the Respondents:
Sri Amit Manohar, Sri Viqar Ahmed Ansari, Sri
S.D. Ohja

(A) Quantum of Compensation - Even
though in the year 1990 to 2000, the addition of
future prospects was not ruled out just because
tribunals in U.P. were not granting future losses.
(Para 10)

Appeal Partly Allowed. (E-10)

List of Cases cited: