# Saiyyad Azadar Husain v. Swami Viveka Nand Vidyashram & Anr

- **Citation:** (2021) 9 ILRA 471
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-05
- **Case number:** FAFO No. 2235 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saiyyad-azadar-husain-v-swami-viveka-nand-vidyashram-anr-47433
- **Pages:** 4

## Headnote

Sri Dinesh Kr. Srivastava, Sri Rajeev Ojha,
Sri S.R. Verma, Sri R.K. Sharma

Enhancement of quantum of amount
awarded as compensation -income of the
deceased
wrongly
calculated-amount
enhanced -50% added under head of
472 INDIAN LAW REPORTS ALLAHABAD SERIES
future
prospect.
Amount
enhanced-
Appeal allowed. (E-9)

List of Cases cited:

## Text

9 All. Saiyyad Azadar Husain Vs. Swami Viveka Nand Vidyashram & Anr.
471
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) 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.

20. Record be sent back to tribunal
forthwith.

21. This Court is thankful to both the
learned Advocates for getting this matter
disposed of during this pandemic.

(Ref: Civil Misc. Delay Condonation
Application)

1. Heard learned counsel for the
appellants and learned counsel for the
respondents.

2. This is an application seeking
condonation of delay in filing the recall
application.

3. Cause shown for the delay in the
affidavit attached to delay condonation
application is sufficient, hence, the delay is
condoned subject to token of cost of Rs.
500/-
to
be
deducted
from
the
compensation awarded.

4. This application, accordingly
stands allowed.

(Ref: Civil Misc. Restoration
Application)

1. This is an application seeking recall
of order dated 17.09.2015 dismissing the
appeal for want of prosecution.

2. Cause shown is sufficient and we
feel that being appeal of M.V. Act, it
requires to be restored.

3. Hence, the order dated 17.09.2015
is hereby recalled to file subject cost of Rs.
500/- as there is huge delay which should
be deducted from the compensation to be
deposited. The appeal is ordered to be
restored to its original number.

4. This application, accordingly,
stands allowed.
----------
(2021)09ILR A471
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2021

BEFORE

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

FAFO No. 2235 of 2014

Saiyyad Azadar Husain ...Appellant
Versus
Swami Viveka Nand Vidyashram & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Ram Singh, Sri Mohd. Asim Zulfiquar

Counsel for the Respondents:
Sri Dinesh Kr. Srivastava, Sri Rajeev Ojha,
Sri S.R. Verma, Sri R.K. Sharma

Enhancement of quantum of amount
awarded as compensation -income of the
deceased
wrongly
calculated-amount
enhanced -50% added under head of
472 INDIAN LAW REPORTS ALLAHABAD SERIES
future
prospect.
Amount
enhanced-
Appeal allowed. (E-9)

List of Cases cited:

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

2. New India Assurance Co.Ltd. Vs Resha Devi &
ors., 2017 (2) AICC 1808

3.Sarla Verma Vs Delhi Transport Corporation,
(2009) 6 SCC 121,

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

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

6. Smt. Hansaguti P. Ladhani Vs The Oriental
Insurance Co. Ltd., reported in 2007(2) GLH 291

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

1. Heard Mohd. Asim Zulfiquar,
learned counsel for the appellant and Sri
R.K. Sharma, learned Advocate, holding
brief of Sri Rajeev Ojha, learned counsel
for the Insurance Company.

2. This appeal, at the behest of the
claimant, challenges the judgment dated
19.4.2014 passed by Motor Accident
Claims Tribunal/Additional District Judge,
Court
No.12,
Allahabad
(hereinafter
referred to as 'Tribunal') in Motor Accident
Claim Petition No.599 of 2011 awarding a
sum of Rs.5,96,000/- with interest at the
rate of 7% as compensation.

3. Brief facts of the present case are
that on 5.2.2011 at about 7.15 am when
Saiyyad Najmul Hasan along with his
younger brother Saiyyad Sabeeh Hasan,
riding on back seat of motor cycle bearing
registration no. U.P. 70 AR 3603, was
going to Mohanganj Gohari, driver of the
bus bearing registration no. UP 70 AT
7188, which was on the way to Sevaith
Railway Crossing from the side of Gohari,
driving it rashly and negligently came on
wrong side and sped away the bus dashing
the motor cycle and running over Saiyyad
Najmul Hasan and Saiyyad Sabeeh Hasan.
In the accident, both sustained severe
injuries as a result of which both passed
away on the spot at the very moment.
Claimants had filed claim petition claiming
Rs. 71,07,000/- averring therein that
deceased was 39 years and used to work in
Kingdom of Saudi Arbia from which he
used to earn Rs.25,000 per mensem.

4. Learned counsel for the appellant
submitted that the deceased was about 39
years of the age at the time of accident and
used to work in Kingdom of Saudi Arbia from
where he used to earn Rs.25,000/- per
mensem. It is further submitted that the
amount granted under non-pecuniary damages
are on the lower side and it should be as per
the decision in National Insurance Company
Limited Vs. Pranay Sethi and Others, 2017
0 Supreme (SC) 1050. Hence, the quantum of
amount awarded requires to be enhanced.

5. Learned counsel for the respondent,
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.However it
is submitted that the multiplier of 15 would be
applicable in the facts of the present case as the
deceased was about 39 years of age.

6. We have perused the record as also
the supplementary affidavit filed by the
appellant which throws light on the income of
9 All. Saiyyad Azadar Husain Vs. Swami Viveka Nand Vidyashram & Anr.
473
the deceased. It throws light on the fact that
he has valid Viza. he was earning SR 2000
(Two thousand Saudi Riyal only). Salary
certificate attached with the supplementary
affidavit shows that he had worked there
from 22.8.2009 to 26.12.2010. This was
given by Hussain Bin Ali Establishment. It is
further submitted that if this Court does not
accept the income in Saudi Riyal, he was
skilled labourer for which also the minimum
wages in the year of accident would be
Rs.3290+1708 which is minimum wages for
a skilled labourer. The Insurance Company
has also relied upon minimum wages in Uttar
Pradesh w.e.f. April 1, 2011 to September 30,
2011. The Accident occurred on 5.2.2011.
Even if we go by the certificate given by the
authority concerned when the accident
occurred, whether he was to go back to serve
at Saudi or not is not made known. The
certificate speaks his working only upto
26.12.2010 meaning thereby he might be on
leave and would have to go back for he was
already in jobe even during the earlier period
as he had got visas earlier also.In that view of
the matter, we go by the Judgment of the
Apex Court in New India Assurance
Company Ltd. Vs. Resha Devi and others,
2017 (2) AICC 1808.

7. On the basis of Judgment of Apex
Court
in
Sarla
Verma
Vs.
Delhi
Transport Corporation, (2009) 6 SCC
121, we fix his income to be Rs.7,000/- per
mensem. As he was aged about 39 years at
the time of accident, 50% requires to be
added under the head of future prospect.
Multiplier of 15 has to be applied. Further
1/3rd amount is required to be deducted as
he was survived by his widow and mother.
As far as amount under non pecuniary
damages are concerned, it should be
Rs.70,000/- with 10% increase in every
three years which we grant Rs.1,00,000/-
lump sum. 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.7,000 p.m.

ii. Percentage towards future
prospects : Rs.3,500/-

iii. Total income : Rs.7,000/-
+Rs.3,500/- = Rs.10,500/-

iv. Income after deduction of
1/3rd
towards
personal
expenses
:
Rs.7,000/-

v. Annual income : Rs.7,000/- x
12 = Rs.84,000/-

vi. Multiplier applicable : 15

vii.
Loss
of
dependency:
Rs.84,000/- x 15 = Rs.12,60,000/-

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

ix.
Total
compensation
:
Rs.13,60,000/-

8. 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."

9. On depositing the amount in the
Registry of Tribunal, Registry is directed to
474 INDIAN LAW REPORTS ALLAHABAD SERIES
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 applicants
/claimants are neither illiterate or rustic
villagers.

10. 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.

11. 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 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.

12.

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 not blindly apply the judgment
of A.V. Padma (supra). The same is to be
applied looking to the facts of each case.

13. Record be sent back to Tribunal.

14. This Court is thankful to both the
counsels to see that the matter is disposed
of.
----------
(2021)09ILR A474
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE DINESH PATHAK, J.

FAFO No. 2386 of 2016

Smt Kavita Singh & Ors. ...Appellants
Versus
The H.D.F.C. Ergo General Insurance
Company Ltd. & Ors. ...Respondents

Counsel for the Appellants:
Sri Mayank

Counsel for the Respondents:
Sri Sushil Kumar Mehrotra

Motor Vehicle Accident Claim-Quantum of
Compensation
challenged-income
wrongly