# Ramesh Chandra Gupta & Anr v. Jagdish Chandra Samdani & Ors

- **Citation:** (2021) 9 ILRA 787
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-05
- **Case number:** F.A.F.O. No. 3785 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-chandra-gupta-anr-v-jagdish-chandra-samdani-ors-47397
- **Pages:** 7

## Headnote

Sri Sudhanshu Behari Lal Gour

Motor
accident
claim-quantum
of
compensation is challenged-no amount
granted towards future loss of income-and
amount granted under non pecuniary
heads are on lower side-deceased was IIT
graduate and was Management traineeincome assesed by the Tribunal is badfuture
loss
of
income
has
to
be
considered-compensation
amount
enhanced.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

9 All Ramesh Chandra Gupta & Anr. Vs. Jagdish Chandra Samdani & Ors.
787
matter at any rate higher than that allowed
by High Court."

25. No other grounds are urged orally
when the matter was heard

26. 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 further order of
investment is not passed because applicants
/claimants are neither illiterate or rustic
villagers and must by now attained
majority the tribunal shall follow the
directions .

27. 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 each 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
exceed
Rs.50,000/- in any financial year, registry of
the 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) while
disbursing
the
amount.The
insurance
company shall follow the said direction and
shall not deduct flat TDS without considering
the proportionate share of each claimant
individually .

28. 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 within a
period of 12 weeks from today with interest
at the rate of 7.5% from the date of filing of
the claim petition till award and 6% thereafter
till the amount is deposited. The amount
already deposited be deducted from the
amount to be deposited.

29. Fresh Award be drawn accordingly
in the above petition by the tribunal as per the
modification made herein.

30. It is hoped that 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 apply the judgment of A.V.
Padma (supra). The same is to be applied
looking to the facts of each case.
----------
(2021)09ILR A787
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2021

BEFORE

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

F.A.F.O. No. 3785 of 2008

Ramesh Chandra Gupta & Anr.
 ...Appellants
Versus
Jagdish Chandra Samdani & Ors.
 ...Respondents
788 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Dr. G.S.D. Mishra, Sri Udit Chandra

Counsel for the Respondents:
Sri Sudhanshu Behari Lal Gour

Motor
accident
claim-quantum
of
compensation is challenged-no amount
granted towards future loss of income-and
amount granted under non pecuniary
heads are on lower side-deceased was IIT
graduate and was Management traineeincome assesed by the Tribunal is badfuture
loss
of
income
has
to
be
considered-compensation
amount
enhanced.

Appeal partly allowed. (E-9)

List of Cases cited:

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

2. P.S. Somanathan & ors. Vs District Insurance
Officer & anr., Civil Appeal No.1891 of 2011,
decided on 17.2.2011.

3. Munna Lal Jain & anr. Vs Vipin Kumar Sharma
& ors., Civil Appeal No.4497 of 2015, decided on
15.5.2015.

4.Smt. Neeta w/o Kallappa Kadolkar & ors. Vs
The DiVs Manager, MSRTC, Kolhapur, Civil
Appeal Nos. 348-349 of 2015.

5. Sanobanu Nazirbhai Mirza & ors. Vs
Ahmedabad Municipal Transport Service, Civil
Appeal
No.8251
of
2013,
decided
on
3.10.2013.

6. Chandan Singh & anr. Vs S.E.W. Construction
Co. Ltd & ors., Misc. Appeal No.296 of 2002,
decided on 3.1.2003.

7. Smt. Kesh Kumari Verma & anr. Vs Om
Narain Shukla & anr., First Appeal From Order
No.319 of 2011, decided on 4.3.2014

8. National Insurance Co. Ltd. Vs Brijlata & ors.,
M.A. Nos.675 and 707 of 2003, decided on
16.1.2008.
9. National Insurance Co. Ltd. Vs Brijlata
Insurance Co. Ltd., 2009 ACJ 791

10. Anita Sharma & ors. Vs New India Insurance
Co. Ltd. & anr., (2021) 1 SCC 171

11. Kirti Vs Oriental Insurance Co. Ltd, (2021) 2
SCC 166

12.
General
Manager,
Kerala
S.R.T.C.,
Trivandrum Vs Susamma Thomas & ors.,(1994)
2 SCC 176

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

14. Sarla Dixit Vs Balwant Yadav AIR 1996 SC 1274

15. Hardeo Kaur V/s. Rajasthan State Transport
Corp., 1992 2 SCC 567

16. Puttamma Vs K.L.Narayana Reddy, AIR 2014
SC 706

17. Raman Vs Uttar Haryana Bijli Vitran Nigam
Limited

18. Bijoy Kumar Dugar Vs Bidyadhar Dutta,
2006 (3) SCC 242

19. R.K.Malik Vs Kiran Pal, AIR 2009 SC 2506

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

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

22. Ritaben @ Vanitaben Wd/o. Dipakbhai
Hariram & anr. Vs Ahmedabad Municipal
Transport Service & anr., 1998 (2) G.L.H. 670

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

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

24. A.Vs Padma Vs Venugopal, Reported in 2012
(1) GLH (SC), 442

25. Smt. Hansaguti P. Ladhani Vs The Oriental
Insurance Co. Ltd., reported in 2007(2) GLH 291
9 All Ramesh Chandra Gupta & Anr. Vs. Jagdish Chandra Samdani & Ors.
789
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Subhash Chand, J.)

1. Heard Shri Udit Chandra, learned
counsel
for
the
appellants
and
Sri
Sudhanshu Behari Lal Gour, learned
counsel for the respondents.

2. The written submission of learned
counsel for appellants is also taken on
record.

3. This appeal, at the behest of the
claimants, challenges the judgment dated
5.8.2008 passed by Motor Accident Claims
Tribunal/Additional District Judge, Pilibhit
(hereinafter referred to as 'Tribunal') in
Claim Petition No.63 of 2006 awarding a
sum of Rs.6,50,000/- with interest at the
rate of 6% as compensation.

4. 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
them. The only issue to be decided is, the
quantum of compensation awarded.

5. It is submitted by learned counsel
for the appellant 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. It is also submitted that as
the deceased was survived by his parents
and hence the deduction towards personal
expenses of the deceased should be 1/3 and
not 1/2 as by tribunal under challenge. The
multiplier has to be as per age of deceased.
To which as the deceased was in age
bracket of 26-30 years, 50% of the income
will have to be added as future prospects in
view of the decision of the Apex Court in
National Insurance Company Limited
Vs. Pranay Sethi and Others, 2017 0
Supreme (SC) 1050. Learned counsel for
the appellant in his favour he has relied on
the following judgments to substantiate his
submissions for enhancement.

(i)
National
insurance
Company Limited v. Pranay Sethi and
others, Special Leave Petition (Civil)
No.25590 of 2014, decided on 31.10.2017.

(ii) P.S. Somanathan and others
v.
District
Insurance
Officer
and
another, Civil Appeal No.1891 of 2011,
decided on 17.2.2011.

(iii)
Munna
Lal
Jain
and
another v. Vipin Kumar Sharma and
others, Civil Appeal No.4497 of 2015,
decided on 15.5.2015.

(iv) Smt. Neeta w/o Kallappa
Kadolkar and others v. The Div.
Manager,
MSRTC, Kolhapur,
Civil
Appeal Nos. 348-349 of 2015.

(v) Sanobanu Nazirbhai Mirza
and others v. Ahmedabad Municipal
Transport Service, Civil Appeal No.8251
of 2013, decided on 3.10.2013.

(vi)
Chandan
Singh
and
another v. S.E.W. Construction Co. Ltd
and others, Misc. Appeal No.296 of 2002,
decided on 3.1.2003.

(vii) Smt. Kesh Kumari Verma
and another v. Om Narain Shukla and
790 INDIAN LAW REPORTS ALLAHABAD SERIES
another, First Appeal From Order
No.319 of 2011, decided on 4.3.2014.

(viii) National Insurance Co.
Ltd. v. Brijlata and others, M.A. Nos.675
and 707 of 2003, decided on 16.1.2008.

6. Learned counsel for the respondent,
has
vehemently
submitted
that
the
contentions raised by the learned counsel
for the appellants cannot be accepted and
has submitted that the compensation
awarded by the Tribunal is just and proper
and does not call for any enhancement. The
deduction can't be 1/3 but has to be 1/2 as
deceased was bachelor and survived by
parents.

7 . Having heard learned counsels for
the parties and considered the factual data.
The
accident
occurred
on
28.1.2006
causing death of Anupam Gupta who was
26 years of age and left behind him,
parents. The Tribunal has assessed the
income of the deceased to be Rs.10,000/-
per month, this assessment is wrong. There
are three reasons for us to disagree with the
learned Tribunal; (i) the post mortem report
mentions the address of the deceased to be
that of Rajasthan and he had purchased a
motorcycle at Rajasthan, but he had not
been working there; (ii) As held by the
learned Judge, there was no accident
having taken place in the Rajasthan which
was the place of his service; (iii) The post
mortem not only shows his place of
service, but also shows that he was residing
in the Colony which is maintained by
Hindustan Zinc Limited. All these will
permit us to interfere with the findings of
the tribunal as far as service of deceased is
considered. As far as non proving of the job
of the petitioner, further the decisions cited
by the counsel for the appellants more
particularly of the Madhya Pradesh High
Court, titled National Insurance Co. Ltd.
v. Brijlata Insurance Co. Ltd., 2009 ACJ
791 would enure from the benefit of the
appellants also.

8. The finding of the tribunal on
income of deceased are perverse for the
following reasons; (i) the deceased was IIT
Graduate and he had shifted to Rajasthan,
he had purchased the motorcycle in the
year 2005. The deceased was Management
Trainee in Starliet Industries Subsidiary of
Hindustan Zinc Ltd. The judgments of the
Apex Court in the case of Anita Sharma
and others versus New India Insurance
Company Limited and another, (2021) 1
SCC 171 will not permit us to concur with
the learned tribunal contending that as the
author of the salary was not examined, it
cannot be believed that he was a salaried
person. This is a perverse findings of fact.
The trappings of civil jurisdiction would
and should not be adhered to indicative the
compensation,
non
grant
of
future
prospects is also without any reasons. The
Apex Court in Kirti v. Oriental Insurance
Co. Ltd, (2021) 2 SCC 166 will also not
permit us to concur with the findings of
tribunal. The approach to be adopted by the
tribunal. Thus, the approach is irregularities
and requires to be interfered and was
alleged to be earning Rs.33,360/- per
month, which we feel is just and proper. As
far as deduction towards personal expenses
of the deceased is concerned, it should be
1/2 as the deceased was a bachelor and his
mother was dependent.

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
9 All Ramesh Chandra Gupta & Anr. Vs. Jagdish Chandra Samdani & Ors.
791
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 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 2005,
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.
792 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In 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 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 appellants in view of the
decision of the Apex Court in Pranay
Sethi (Supra) is computed herein below:

i. Income Rs.33,360/- p.m.

ii. Annual income : Rs.33,360 x
12 = Rs.400320/-

iii. Percentage towards future
prospects : 50% namely Rs.200160/-

iv. Total income : Rs. 400320 +
200160 = Rs.600480/-

v. Income after deduction of 1/2 :
Rs.300240/-

vi. Multiplier applicable : 17 (as
the deceased was in the age bracket of 2630 years)

vii.
Loss
of
dependency:
Rs.300240 x 17 = Rs.51,04,080/-

viii. Amount under non pecuniary
heads : Rs.70,000/-

ix.
Total
compensation
:
Rs.51,74,080/-

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 . 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
9 All Mohd. Ahmad & Anr. Vs. State of U.P. & Ors.
793
(1) GLH (SC), 442, the order of
investment is not passed because applicants
/claimants are neither illiterate or restic
villagers.

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 respondentInsurance Company shall deposit the
amount along with additional amount
within a period of 12 weeks from today
with interest at the rate of 7.5% from the
date of filing of the claim petition till the
amount is deposited. The amount already
deposited be deducted from the amount to
be deposited.

17.
Record
and
proceedings
be
remitted to tribunal.

18. 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 apply the judgment of A.V.
Padma (supra). The same is to be applied
looking to the facts of each case.

19. This Court is thankful to both the
counsels to see that the matter is disposed
of.
----------
(2021)09ILR A793
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 315 of 2021

Mohd. Ahmad & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Avinash Pandey

Counsel for the Respondents:
A.G.A.

(A) Habeas Corpus - writ of habeas corpus -
prerogative writ - an extraordinary remedy -
festinum remedium - habeas corpus would be
dependent on the jurisdictional fact - It is only
where the jurisdictional fact is established
that the applicant becomes entitled to the writ
as of right - issuance of a writ of habeas
corpus at the behest of a husband to regain
his wife may not be available as a matter of
course and the power in this regard may be