# Rizwan Hussain Farooqi v. Oriental Insurance Co. Ltd. & Ors

- **Citation:** (2022) 5 ILRA 763
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-23
- **Case number:** First Appeal From Order No. 1418 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rizwan-hussain-farooqi-v-oriental-insurance-co-ltd-ors-48585
- **Pages:** 6

## Headnote

A. Civil Law - Motor Accident Act, 1988 -
Compensation - Liability to pay - Injured
person, a bright student, was studying in a
famous
coaching
centre
-
However,
tribunal has considered his income NIL -
Validity challenged - Held, as injured was
a
bright
student
and
preparing
for
U.P.S.C., the income with potential to earn
can be considered to be Rs. 6000/- per
month - Principles enunciated in Kahlon's
case
relied
upon
-
High
Court
recomputed the compensation adding 40%
as the future loss and awarded 7.5%
interest. (Para 8, 10 and 11)
Appeal partly allowed (E-1)
List of Cases cited:-

## Text

5 All. Rizwan Hussain Farooqi Vs. Oriental Insurance Co. Ltd. & Ors.
763

43. Both the appeals 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
petition till the amount is deposited. The
amount already deposited be deducted from
the amount to be deposited.

44. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 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.

45. The records and proceedings be
sent
back
to
the
Tribunal
for
disbursement.
----------
(2022)05ILR A763
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. 1418 of 2007

Rizwan Hussain Farooqi ...Appellant
Versus
Oriental Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Arun Kumar Tripathi, Sri Ashfaq Husain,
Sri Tahir Husain

Counsel for the Respondents:
Sri D.M. Tripathi, Ms. Aarushi Khare, Sri
Arun Kumar Shukla, Sri Sudip Ojha, Sri
Vinay Khare

A. Civil Law - Motor Accident Act, 1988 -
Compensation - Liability to pay - Injured
person, a bright student, was studying in a
famous
coaching
centre
-
However,
tribunal has considered his income NIL -
Validity challenged - Held, as injured was
a
bright
student
and
preparing
for
U.P.S.C., the income with potential to earn
can be considered to be Rs. 6000/- per
month - Principles enunciated in Kahlon's
case
relied
upon
-
High
Court
recomputed the compensation adding 40%
as the future loss and awarded 7.5%
interest. (Para 8, 10 and 11)
Appeal partly allowed (E-1)
List of Cases cited:-
1. Sanjay Kumar Vs Ashok Kumar & anr.; (2014)
5 SCC 330
2. Syed. Sadiq & ors. Vs Divisional Manager,
United India Insurance Co. Ltd.; (2014) 2 SCC
735
764 INDIAN LAW REPORTS ALLAHABAD SERIES
3. VsMekala Vs M. Malathi & anr.; (2014) 11
SCC 178
4. Hari Babu Vs Amrit Lal & ors. 2019 (2) T.A.C.
718 (All.)
5. Kajal Vs Jagdish Chand; 2020 (0) AIJEL-SC
65725
6. Raj Kumar Vs Ajay Kumar & anr.; (2011) 1
SCC 343
7. Smt. Meena Pawaia & others Vs Ashraf Ali &
ors. 2021 0 Supreme (SC) 694
8. National Insurance Co. Ltd. Vs Pranay Sethi &
ors. 2017 Law Suit (SC) 1093
9. Civil Appeal No. 433 of 2022; Shivdhar Kumar
Vashiya Vs Ranjeet Singh & ors. decided on
21.01.2022
10. Civil Appeal No. 2551 of 2020; Anthony @
Anthony
Swamy
Vs
Managing
Director,
K.S.R.T.C. decided on June 10, 2020
11. Raj Kumar Vs Ajay Kumar & anr.; (2011) 1
SCC 343
12. Civil Appeal No. 4800 of 2021; The Oriental
Insurance Co. Ltd. Vs Kahlon @ Jasmail Singh
Kahlon decided on 16.08.2021
13. National Insurance Co. Ltd. Vs Mannat Johal
& ors. 2019 (2) T.A.C. 705 (S.C.)
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard Tahir Husain, learned
counsel for the appellant, Sri Sudip Ojha,
learned counsel for respondent no. 1 and
Sri A. K. Shukla, learned counsel for
respondent no. 3.

2. This appeal , at the behest of the
claimants, challenges the award and decree
dated
07.02.20007
passed
by
M.A.C.T/Additional District Judge, Court
No. 3, Farrukhabad (hereinafter referred to
as "Tribunal") in M.A.C.P. No. 135 of 2005
awarding a sum of Rs. 2,55,000/- as
compensation with interest at the rate of
6%.

3. The accident is not in dispute. The
issue of negligence decided by the Tribunal
is not in dispute. The respondent-Insurance
Company has not challenged the liability
imposed on them. The only issue to be
decided is, the quantum of compensation
awarded.

4. Brief facts as culled out from the
record are that on 14.05.205 at about 2:00
p.m Rizwan Hussain Farooqui was coming
from Bholepur to Fatehgarh on his own
motor-cycle bearing registration no. U.P.
76D/2833 and was accompanied by his
friend Amir Ali @ Montu. He was driving
his motor-cycle cautiously at a constant
speed. When he reached Fatehgarh crossing
a tempo driven by driver Neelu @ Diwakar
rashly and negligently bearing registration
no. U.P. 76E/9110 dashed the moto-cycle
of Rizwan from behind. As a result of
which Rizwan Hussain Farooqui and his
friend Amir Ali @ Montu sustained
injuries. Rizwan Hussain Faooqui received
grievous injuries on his nose, ear, jawline
and on face. He was rushed to nearby Das
Nursing Home. He received grievous injury
on his head and received fractures in
various parts of his body, therefore for
treatment and C.T. Scan he was admitted to
Regency Hospital, Kanpur. In Regency
Hospital he was treated and he underwent
many surgeries. It is averred that treatment
continued and the appellant had to spent
about Rs. 5,00,000/- on his treatment.

5. The injured was 21 years of age
and was studying at Rao I.A.S, Delhi at the
time of accident. Due to his accident he
could not complete his course at Rao I.A.S,
Delhi. Injured was giving tuition and was
earning Rs. 5,000/- p.m. The tribunal has
5 All. Rizwan Hussain Farooqi Vs. Oriental Insurance Co. Ltd. & Ors.
765
considered his income to be Nil, granted
Rs. 2,00,000/- towards loss of medical
expenses, granted Rs. 50,000/- towards his
future medicine and Rs. 5,000/- towards
pain, shock and sufferings and ultimately
assessed the total compensation to be Rs.
2,55,000/-.

6. It is submitted by learned counsel
for the appellant that no amount under the
head loss of income has been granted by
the Tribunal which is unjust and should be
at least Rs.6,000/- per month. It is
submitted that no amount is granted under
the head of monthly loss to injured which is
also unjust and should be at least 40% Rs.
6,000/- per month with future loss of
income. It is submitted that no amount
under the head of future loss of income has
been granted. It is also submitted that the
amount under the non-pecuniary heads and
the interest awarded are also on the lower
side and requires to be enhanced in view of
the
following
authoritative
pronouncements:

(i) Sanjay Kumar Vs. Ashok
Kumar and another, (2014) 5 SCC 330;

(ii) Syed. Sadiq and others Vs.
Divisional
Manager,
United
India
Insurance Company Limited, (2014) 2
SCC 735;

(iii) V. Mekala Vs. M. Malathi
and another, (2014) 11 SCC 178; and

(iv)
Uttar
Pradesh
Motor
Vehicles (Eleventh Amendment) Rules,
2011.

(v) Hari Babu Vs. Amrit Lal
and others, 2019 (2) T.A.C. 718 (All.).

(vi) Kajal Vs. Jagdish Chand
reported in 2020 (0) AIJEL-SC 65725

7. As against this, it is submitted by
the learned counsel for the respondent that
the quantum awarded by the Tribunal is
just and proper and does not call for any
interference of this Court. The learned
counsel has submitted that the claimant was
not granted any amount as the documentary
evidence which were produced did not
show that there was any disability which
the appellant-claimant. The claimants claim
for Rs. 5 lacs as expenses is not supported
by any documentary evidence and that the
tribunal has rightly held that as the injured
was not into any profession no amount
could be granted for loss of income and
therefore, the tribunal has rightly not
granted any amount for loss of income.

8. After hearing the counsel for the
parties and perusing the judgment and
order impugned, as he was a bright student
and preparing for U.P.S.C, this Court feels
that income with potential to earn can be
considered to be Rs.6000/- per month. To
which as the injured was 21 years at the
time of accident, 40% of the income would
have to be added as future loss of income to
the injured in view of the decision of the
Apex Court in Raj Kumar Vs. Ajay
Kumar and another, reported in (2011) 1
SCC 343 and Syed Sadiq and others
(Supra). The loss of earning capacity
namely 25% as considered by the Tribunal
is enhanced to 40% for following reasons.
The Apex Court recently in Smt. Meena
Pawaia & others Vs. Ashraf Ali and
others 2021 0 Supreme (SC) 694 and
National Insurance Co. Ltd. V.s Pranay
Sethi and others, 2017 Law Suit (SC)
1093 has held that "even if a person is not
earning his potential to earn should also be
considered". In our case we fail to
understand how the tribunal can hold that
the injured cannot be granted any amount
under the head of loss of income. The
766 INDIAN LAW REPORTS ALLAHABAD SERIES
injuries which are brought on record go to
show that the injured had suffered multiple
injuries even at the young age which are
narrated herein below:-

" Fracture left temporal bone
with
opaque
ethmoid
and
maxillary
sinuses.

- Hyper dense areas suggestive of
extra dural haematoma is seen in left
tempor parietal region with associated
cerebral oedema causing effacement of
ipisilateral sylvian fissure and sulci. Slight
midline shift is noted to right.

- Rest of the Brain parenchyma is
normal

-
Left
ventriele
is
partially
effected.

Rest of the ventricular system is
normal.

- Brain stem and cerebellum
appear normal."

These
injuries
have
been
considered and accepted by the tribunal but
just because the injured was not into any
vocation the tribunal did not grant the said
amount. We would even base our judgment
on the decision titled Shivdhar Kumar
Vashiya Vs. Ranjeet Singh and others in
Civil Appeal No. 433 of 2022 decided on
21.01.2022. The fact that the decision in
Anthony Alias Anthony Swamy Vs.
Managing Director, K.S.R.T.C in Civil
Appeal No. 2551 of 2020 decided on June
10, 2020 of the Apex Court which has
relied on the judgment of Raj Kumar Vs.
Ajay Kumar and another, reported in
(2011) 1 SCC 343 and Syed Sadiq and
others (Supra) will also enure for the
benefit of the claimant as we have seen that
there were lot of injuries on the body of the
claimant. The claimant has produced before
us his prolonged illness of two years. This
trauma ultimately culminated into the sad
demise of the 21 year old person who
breathe his last after 5 months of the
decision and filing of this appeal. The
question is what would legal heirs be
entitled after death. The recent judgment of
the Apex Court in the case of The Oriental
Insurance Company Ltd. Vs. Kahlon @
Jasmail Singh Kahlon through his legal
representative in Civil Appeal No. 4800 of
2021 decided on 16.08.2021 wherein the
Apex Court held that "on death of a person
the compensation claims would not abate."
In our case also the judgment was rendered
when the injured was having 40% disability
and was alive. The tribunal unfortunately
just gave what is known as medical
expenses but did not grant any amount for
future loss of income in such a serious
matter. The judgment of Parminder Singh
relied in the aforementioned judgment and
in the judgment of Kajal (supra) will
enure for the benefit of the appellant. Thus
the finding of facts by the tribunal are not
germane and pervisity has crept in the
beneficial peace of legislation has not been
properly appreciated and will have to be
upturned as in view of the decisions
aforementioned and the fact that the injured
died after the judgment of the tribunal and
after 5 months offiling of the appeal. Thus
the principles enunciated in kahlon (supra)
will have to be borne in mind and therefore
the compensation payable would relate to
the date of the accident. It goes without
saying that we need not to corroborate or
give answer whether the death was because
of the injuries or not as that is not the
subject before us and that is not the issue
raised before us, had the deceased died
before the award of the tribunal the issue to
5 All. Rizwan Hussain Farooqi Vs. Oriental Insurance Co. Ltd. & Ors.
767
be decided would have been different and
different parameters would be made
applicable.

9. Further, the amount granted by the
Tribunal for medical expenses plus 50,000/-
rounding the figure to Rs. 2,50,000/- future
medicine upto 07.02.2007 and 20,000/- for
attendant charges are granted. As far as the
amount under pain, shock and sufferings is
concerned, looking to the fact that he was
admitted in hospital many times and has
undergone surgeries, the amount is enhanced
to Rs.1,00,000/-. Unfortunately the father of
the injured also breathe his last during
pendency of this appeal on 11.03.2014 and
therefore the amount will have to be disbursed
to the legal heirs alive at present and who are
representing the estate of the deceased.

10. Hence, the total compensation
payable to the appellant is computed herein
below:

i. Income : Rs.6000/-

ii. Percentage towards future
prospects : 40% namely Rs.2400/-

iii. Total income : Rs. 6000 +
2400 = Rs. 8400/-

iv. Loss of earning capacity :
40% namely Rs. 3400/- (rounded up)

v. Annual loss : Rs. 3400 x 12 =
Rs. 40,800/-

vi. Multiplier applicable : 18

vii. Total loss : Rs. 40,800 x 18 =
Rs. 7,34,400/-

viii. Medical expenses : Rs.
2,50,000/-(rounded up)

ix. Special diet : Rs. 20,000/-

xi. Attendant charges : Rs.
20,000/-

xii. Amount under pain, shock
and suffering : Rs.1,00,000/-

xiii.
Total
compensation
:
11,24,400/-

11. As far as issue of rate of interest is
concerned, it should be 7.5% in view
decision of the Apex Court in Civil Appeal
No.242/243 of 2020 (National Insurance
Company Ltd. vs Birender and others)
decided on 13 January, 2020 which is the
latest in point of time and 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." .

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

13. In view of the above, the appeal is
partly allowed. Award and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The amount be deposited
by the respondent-Insurance Company
768 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

14. Record be sent back to tribunal
forthwith.

15. This Court is thankful to both the
learned Advocates for ably assisting this
Court.
----------
(2022)05ILR A768
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2022

BEFORE

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

First Appeal From Order No. 1466 of 2021

Smt. Raj Mala & Ors. ...Appellants
Versus
Sri Surendra Kapoor & Anr. ...Respondents

Counsel for the Appellants:
Sri Brij Raj Singh, Sri Amit Kumar Singh

Counsel for the Respondents:
Sri Vipul Kumar, Sri Siddharth Jaiswal

A. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - accident
took place on 6.5.2008 - deceased date
of Birth was 1.7.1975 as recorded in
School Leaving Certificate and the date
of accident was 6.5.2008 therefore the
deceased was 33 years of age at the
time of accident - deceased was earning
Rs 12,000 per month as Plant Operator
in PNC Construction Company Ltd - Held
- Tribunal has fallen in error in not
considering the salary certificate as well
as
the
evidence
led
before
it,
documentary evidence 41 G which is the
order of deployment of staff dated
18.1.2006, documentary evidence 24 G
dated
30.6.2008,
where
it
was
specifically mentioned that deceased
last drawn salary was Rs. 12,000 per
month - Multiplier of 16 is granted as
the deceased was in the age bracket of
31 to 35 - deceased left behind him, four
minor children and his widow, hence
deduction towards personal expenses
would be 1/4th - Rs. 70,000 granted
under the non pecuniary heads and Rs.
50,000 each to the minor children -
claimants would be entitled to 7.5%
rate
of
interest
on
the
enhanced
compensation
-
As
10
years
have
elapsed, amount be deposited in the
Saving
Account
of
claimants
in
Nationalized Bank without F.D.R. (Para
12, 13, 19)
Allowed. (E-5)

List of Cases cited:

1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 LawSuit (SC) 1093

2. Sarla Verma & ors. Vs Delhi Transport
Corporation & anr., 2009 LawSuit (SC)

3. A.P.S.R.T.C. & ors. v. M. Ramadevi & ors.,
2008 (1) T.A.C. 714 SC

4. National Insurance Co. Ltd. v. Indira
Srivastava & ors., (2008) 2 SCC 763

5. Asha & ors. Vs United India Insurance Co.
Ltd. & anr., (2008) 2 SCC 744

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

7. Smt. Hansaguri P. Ladhani Vs The Oriental
Insurance Company Ltd., reported in 2007(2)
GLH 291

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