# Saroj v. M/S Mangla Oil Carier Pvt. Ltd. & Ors

- **Citation:** (2024) 5 ILRA 2504
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-24
- **Case number:** First Appeal from Order No. 2664 of 2016
- **Bench:** Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saroj-v-m-s-mangla-oil-carier-pvt-ltd-ors-52076
- **Pages:** 6

## Headnote

A. Insurance Law - Compensation - The
amounts, therefore, which were required
to be paid to the deceased by his employer
by way of perks, should be included for
computation of his monthly income as that
would have been added to his monthly
income by way of contribution to the
family as contradistinguished to the ones
which were for his benefit. However, the
Court hastened to add that from the said
amount of income, the statutory amount of tax
payable thereupon must be deducted. (Para 4)

B. Words and Phrases - 'income' - If the
dictionary meaning of the word "income" is
taken to its logical conclusion, it should include
those benefits, either in terms of money or
otherwise, which are taken into consideration
for the purpose of payment of income tax or
professional tax although some elements
5 All. Saroj Vs. M/S Mangla Oil Carier Pvt. Ltd. & Ors.
2505
thereof may or may not be taxable or would
have been otherwise taxable but for the
exemption conferred thereupon under the
statute. (Para 4)

Appellant submitted that a very meager amount
has been awarded by the claims tribunal. The
claimant has fully proved his income by
producing cogent evidence and the claims
tribunal has erred in awarding compensation
accepting Rs. 4,153/-as monthly income of the
claimant and amount of Rs. 1,765/-received by
the claimant under the head of H.R.A. was
deducted by the tribunal from the income of the
deceased. The claims tribunal has erred in
deducting amount of H.R.A., whereas the house
rent allowance includes in the income of the
claimant.

C. In assessing the compensation payable
the settled principles need to be borne in
mind. A victim who suffers a permanent or
temporary disability occasioned by an
accident is entitled to the award of
compensation. The award of compensation
must cover among others, the following aspects:

(i) Pain, suffering and trauma resulting from the
accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a normal
life together with its amenities;
(iv) Medical expenses including those that the
victim may be required to undertake in future;
and
(v) Loss of expectation of life. (Para 5)

Compensation
can
be
granted
for
disability as well as for loss of future
earnings for the first head relates to the
impairment of a person's capacity while
the other relates to the sphere of pain and
suffering and loss of enjoyment of life by
the person himself.

The benefit of future prospects should not
be confined only to those who have a
permanent job and would extend to selfemployed individuals. In the case of a selfemployed person, an addition of 40% of the
established income should be made where the
age of the victim at the time of the accident was
below 40 years. (Para 5)
The claimant had received grievous injuries in
the accident and has become permanent
disable. As per disability certificate there was
disability of 45%. So far as income of the
claimant-injured is concerned, the claims
tribunal has erred in excluding the amount
received towards H.R.A. from the monthly
income of the injured. The amount of Rs.
1,765/-received by claimant under the head of
H.R.A. is included in his monthly income for the
purposes to calculate the just compensation.
The claimant-appellant is also entitled for 50%
future prospects. (Para 8)

Appeal allowed. Compensation awarded
by the claims tribunal has been modified
and enhanced. (E-4)

Precedent followed:

## Text

2504 INDIAN LAW REPORTS ALLAHABAD SERIES
the
practical
realities
and
broader
legislative objectives, can lead to unjust
outcomes. A strict literal interpretation
could enable parties to delay or obstruct the
arbitration process by claiming non-receipt
of a signed copy despite being aware of the
award's contents and having acted upon it.
The legislative intent behind Section 31(5)
of the Arbitration Act is to ensure that
parties are adequately informed about the
award to take necessary legal actions within
prescribed
timelines.
Therefore,
an
interpretation that considers the party's
actual awareness and actions, even if a
signed copy was not formally received,
aligns better with the legislative intent and
the principles of justice and equity.

19. The Learned District Judge,
Mathura, was justified in dismissing the
appellant's application under Section 34 of
the Arbitration Act as time-barred. The
appellant's awareness of the award and its
subsequent actions negate the claim of nonreceipt of a signed copy. The principle of
estoppel further prevents the appellant from
contradicting
their
previous
acknowledgment of the award. A balanced
interpretation of Section 31(5) of the
Arbitration Act supports the Learned
District
Judge's
decision,
ensuring
procedural fairness and upholding the
Arbitration Act's objectives of expeditious
dispute resolution. The appellant's claim of
patent illegality in the Learned District
Judge's judgment lacks substance. The
decision to dismiss the Section 34
application as time-barred was grounded in
the appellant's evident awareness of the
award and their subsequent actions.

20. In light of the same, this Court
finds no reason to interfere with the
impugned judgment and order dated
November 16, 2019 passed by the Learned
District Judge, Mathura under Section 34 of
the Arbitration Act. The arbitral award
dated July 28, 2016 having attained finality,
cannot be questioned at this stage.

21. Accordingly, the instant
application is dismissed. There shall be no
order as to the costs.
----------
(2024) 5 ILRA 2504
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

First Appeal from Order No. 2664 of 2016

Saroj ...Appellant
Versus
M/S Mangla Oil Carier Pvt. Ltd. & Ors.
 ...Respondents

Counsel for the Appellant:
Vikash Singh, Nigamendra Shukla

Counsel for the Respondents:
Anand Pati Tiwari, Bhartednu Pathak

A. Insurance Law - Compensation - The
amounts, therefore, which were required
to be paid to the deceased by his employer
by way of perks, should be included for
computation of his monthly income as that
would have been added to his monthly
income by way of contribution to the
family as contradistinguished to the ones
which were for his benefit. However, the
Court hastened to add that from the said
amount of income, the statutory amount of tax
payable thereupon must be deducted. (Para 4)

B. Words and Phrases - 'income' - If the
dictionary meaning of the word "income" is
taken to its logical conclusion, it should include
those benefits, either in terms of money or
otherwise, which are taken into consideration
for the purpose of payment of income tax or
professional tax although some elements
5 All. Saroj Vs. M/S Mangla Oil Carier Pvt. Ltd. & Ors.
2505
thereof may or may not be taxable or would
have been otherwise taxable but for the
exemption conferred thereupon under the
statute. (Para 4)

Appellant submitted that a very meager amount
has been awarded by the claims tribunal. The
claimant has fully proved his income by
producing cogent evidence and the claims
tribunal has erred in awarding compensation
accepting Rs. 4,153/-as monthly income of the
claimant and amount of Rs. 1,765/-received by
the claimant under the head of H.R.A. was
deducted by the tribunal from the income of the
deceased. The claims tribunal has erred in
deducting amount of H.R.A., whereas the house
rent allowance includes in the income of the
claimant.

C. In assessing the compensation payable
the settled principles need to be borne in
mind. A victim who suffers a permanent or
temporary disability occasioned by an
accident is entitled to the award of
compensation. The award of compensation
must cover among others, the following aspects:

(i) Pain, suffering and trauma resulting from the
accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a normal
life together with its amenities;
(iv) Medical expenses including those that the
victim may be required to undertake in future;
and
(v) Loss of expectation of life. (Para 5)

Compensation
can
be
granted
for
disability as well as for loss of future
earnings for the first head relates to the
impairment of a person's capacity while
the other relates to the sphere of pain and
suffering and loss of enjoyment of life by
the person himself.

The benefit of future prospects should not
be confined only to those who have a
permanent job and would extend to selfemployed individuals. In the case of a selfemployed person, an addition of 40% of the
established income should be made where the
age of the victim at the time of the accident was
below 40 years. (Para 5)
The claimant had received grievous injuries in
the accident and has become permanent
disable. As per disability certificate there was
disability of 45%. So far as income of the
claimant-injured is concerned, the claims
tribunal has erred in excluding the amount
received towards H.R.A. from the monthly
income of the injured. The amount of Rs.
1,765/-received by claimant under the head of
H.R.A. is included in his monthly income for the
purposes to calculate the just compensation.
The claimant-appellant is also entitled for 50%
future prospects. (Para 8)

Appeal allowed. Compensation awarded
by the claims tribunal has been modified
and enhanced. (E-4)

Precedent followed:

1. National Insurance Co. Ltd. Vs Indira
Srivastava, 2008 (2) SCC 763 (Para 4)

2. Jagdish Vs Mohan & ors., 2018 (2) T.A.C. 14
(Para 5)

Present appeal challenges the judgment
and award dated 18.04.2016, passed by
Additional District Judge, Motor Accident
Claims Tribunal, Ghaziabad in M.A.C.P. No.
380 of 2013 by which compensation of
Rs.6,10,068/- along with 6% interest has
been awarded in favour of claimantappellant on account of injuries received
by him.

(Delivered by Hon'ble Vipin Chandra Dixit, J.)

1. List has been revised.

2. Heard Sri Nigamendra Shukla,
learned counsel for the appellant and Sri
Bhartendu Pathak, learned counsel for the
respondent no.3 and perused the record. No
one is present on behalf of respondent nos.
1 and 2, who are owner and driver of
vehicle.

3. This first appeal from order has
been filed by the appellant against the
2506 INDIAN LAW REPORTS ALLAHABAD SERIES
judgement and award dated 18.04.2016
passed by Additional District Judge, Court
No.- 13/ Motor Accident Claims Tribunal,
Ghaziabad in M.A.C.P. No. 380 of 2013
(Sanoj Kumar Vs. M/s Mangala Oil Carrier
Pvt.
Ltd.
and
others)
by
which
compensation of Rs. 6,10,068/- along with
6% interest has been awarded in favour of
claimant-appellant on account of injuries
received by him.

4. It is submitted by learned
counsel for the appellant that a very meager
amount has been awarded by the claims
tribunal. The claimant has fully proved his
income by producing cogent evidence and
the claims tribunal has erred in awarding
compensation accepting Rs. 4,153/- as
monthly income of the claimant and
amount of Rs. 1,765/- received by the
claimant under the head of H.R.A. was
deducted by the tribunal from the income of
the deceased. The claims tribunal has erred
in deducting amount of H.R.A., whereas
the house rent allowance includes in the
income of the claimant. Learned counsel
for the appellant has placed reliance on the
judgement of Hon'ble Apex Court in the
case of National Insurance Co. Ltd. Vs.
Indira Srivastava reported in 2008 (2) SCC
763. The relevant paragraph nos. 19 and 21
are reproduced hereinbelow:-

"19. The amounts, therefore,
which were required to be paid to the
deceased by his employer by way of perks,
should be included for computation of his
monthly income as that would have been
added to his monthly income by way of
contribution
to
the
family
as
contradistinguished to the ones which
were for his benefit. We may, however,
hasten to add that from the said amount
of income, the statutory amount of tax
payable thereupon must be deducted.
21. If the dictionary meaning of
the word "income" is taken to its logical
conclusion, it should include those
benefits, either in terms of money or
otherwise,
which
are
taken
into
consideration for the purpose of payment
of income tax or professional tax
although some elements thereof may or
may not be taxable or would have been
otherwise taxable but for the exemption
conferred thereupon under the statute."

5. It is further submitted that
nothing has been awarded towards future
prospects, wheres, the claimant-appellant
is entitled for 50% future prospects as the
claimant was in permanent job and was
below 40 years at the time of accident in
view of law laid down by Hon'ble Apex
Court in the case of Jagdish Vs. Mohan
and others reported in 2018 (2) T.A.C.
14. The relevant paragraph nos.8, 9 and
10 are reproduced herein below:-

"8 In assessing the compensation
payable the settled principles need to be
borne in mind. A victim who suffers a
permanent
or
temporary
disability
occasioned by an accident is entitled to
the award of compensation. The award of
compensation must cover among others,
the following aspects:
(i) Pain, suffering and trauma
resulting from the accident;
(ii) Loss of income including future
income;
(iii) The inability of the victim to lead
a normal life together with its amenities;
(iv) Medical expenses including
those that the victim may be required to
undertake in future; and
(v) Loss of expectation of life.
In Sri Laxman @ Laxman Mourya
v Divisional Manager, Oriental Insurance
Co. Ltd., this Court held:
5 All. Saroj Vs. M/S Mangla Oil Carier Pvt. Ltd. & Ors.
2507
"The ratio of the above noted
judgments is that if the victim of an accident
suffers permanent or temporary disability,
then efforts should always be made to
award adequate compensation not only
2011 (12) SCALE 658 for the physical
injury and treatment, but also for the pain,
suffering and trauma caused due to
accident, loss of earnings and victim's
inability to lead a normal life and enjoy
amenities, which he would have enjoyed but
for the disability caused due to the
accident." In K Suresh v New India
Assurance Company Ltd., this Court
adverted to the earlier judgments in
Ramesh Chandra v Randhir Singh and B
Kothandapani
v
Tamil
Nadu
State
Transport Corporation Limited. The Court
held that compensation can be granted for
disability as well as for loss of future
earnings for the first head relates to the
impairment of a person's capacity while the
other relates to the sphere of pain and
suffering and loss of enjoyment of life by the
person himself. In Govind Yadav v New
India Insurance Company Limited , this
Court adverted to the earlier decisions in R
D Hattangadi v Pest Control (India) (Pvt)
Ltd., Nizam's Institute of Medeical Sciences
v Prasanth S Dhananka, Reshma Kumari v
Madam Mohan, Arvind Kumar Mishra v
New India Assurance Company, and Raj
Kumar v Ajay Kumar and held thus:
"18. In our view, the principles laid
down in Arvind Kumar Mishra v. New India
Assurance3 Co. Ltd. and Raj Kumar v. Ajay
Kumar must be followed by all the
Tribunals
and
the
High
Courts
in
determining the quantum of compensation
payable to the victims of accident, who are
disabled either permanently or temporarily.
If the victim of the accident suffers
permanent disability, then efforts should
always be made to award adequate
compensation not only for the physical
injury and treatment, but also for the loss of
earning and his inability to lead a normal
life and enjoy amenities, which he would
have enjoyed but for the disability caused
due to the accident." (Id at page 693)
(2012)12SCC274 (1990) 3 SCC 723 (2011)
6 SCC 420 (2011) 10 SCC 683 (1995) 1
SCC 551 (2009) 6 SCC 1 (2009) 13 SCC
422 (2010) 10 SCC 254 (2011) 1 SCC 343
These principles were reiterated in a
judgment of this Court in Subulaxmi v MD
Tamil Nadu State Transport Corporation12
delivered by one of us, Justice Dipak Misra
(as the learned Chief Justice then was).
9
Having
regard
to
these
principles, it would be now appropriate to
assess the case of the appellant for
enhancement
of
compensation.
The
accident took place on 24 November 2011.
The appellant was a skilled carpenter and
self-employed. The claim of the appellant
that his earnings were Rs. 6,000/- per
month cannot be discarded. This claim
cannot be regarded as being unreasonable
or contrary to a realistic assessment of the
situation on the date of the accident.
10
In
the
judgment
of
the
Constitution Bench in Pranay Sethi
(supra), this Court has held that the benefit
of future prospects should not be confined
only to those who have a permanent job and
would extend to self-employed individuals.
In the case of a self-employed person, an
addition of 40 per cent of the established
income should be made where the age of the
victim at the time of the accident was below
40 years. Hence, in the present case, the
appellant
would
be
entitled
to
an
enhancement of Rs. 2400/- towards loss of
future prospects."

6. On the other hand, learned
counsel appearing on behalf of respondentInsurance Company submits that the
compensation awarded by the claims
2508 INDIAN LAW REPORTS ALLAHABAD SERIES
tribunal is almost just and proper and no
ground for enhancement is made out.
Learned
counsel
for
the
Insurance
Company submits that since the age of
claimant was 33 years at the time of
accident, the appropriate multiplier would
be 16 and the claims tribunal has erred in
applying the multiplier of 17, however he
has not disputed that the claimant is entitled
to receive 50% towards future prospects. It
is further submitted that the claims tribunal
has recorded the finding that the vehicle
was plied in violation of terms and
conditions of Insurance Policy as the permit
of the vehicle was not filed either by
claimant or by owner of the vehicle and
right of recovery has rightly been given to
the
Insurance
Company.
If
the
compensation
is
enhanced,
then
respondent-Insurance Company may be
permitted to recover the same from the
owner of the vehicle.

7.

Considered
the
rival
submissions of learned counsel for the
parties and perused the record.

8. As per the case of the claimant,
the claimant had received grievous injuries
in the accident and has become permanent
disable. As per disability certificate there
was disability of 45%. So far as income of
the claimant-injured is concerned, the
claims tribunal has erred in excluding the
amount received towards H.R.A. from the
monthly income of the injured. The amount
of Rs. 1,765/- received by claimant under
the head of H.R.A. is included in his
monthly income for the purposes to
calculate the just compensation. The
claimant-appellant is also entitled for 50%
future prospects in view of law laid down
by Hon'ble Apex Court in the case of
Jagdish (supra).

9. In view of above, the appeal
preferred by claimant-appellant is partly
allowed. The compensation awarded by the
claims tribunal is reassessed as under:-

i. Monthly Income= Rs. 4,153/- +
Rs. 1765/- = Rs. 5,918/-
ii. Annual Income= Rs. 5,918 x 12=
Rs. 71,016/-
iii. Future prospects (50%)= Rs.
35,508/-
iv. Total Annual
Income= Rs. 71,016/- + Rs.
35,508/- = Rs. 1,06,524/-
v. Loss of income (45%) = Rs.
47,935.8 /- = Rs, 47,936/-
vi. Multiplier applicable(16) = Rs.
47,936/- x 16 = Rs. 7,66,976/-
vii.
Medical
expenses
=
Rs.2,21,823/-
viii. Pain and suffering = Rs.
7,000/-
ix. Total compensation = Rs.
7,66,976/- + Rs. 2,21,823/- + Rs. 7,000 /-
= Rs. 9,95,799/-

10. In view of above the judgment
and award of the claims tribunal is modified
and compensation is enhanced from Rs.
6,10,068/- to Rs. 9,95,799/-.

11. The claimant-appellant is also
entitled for 6% interest on the enhanced
amount from the date of judgement and
award dated 18.04.2016.

12. The respondent-Insurance
Company is directed to pay the enhanced
amount along with interest to the claimant
within a period of two months from today.
In case of default in depositing the amount
as indicated above, the Insurance Company
is liable to pay interest @ 10% on the
enhanced amount till payment.
5 All. Shiv Singh & Anr. Vs. State of U.P. & Ors.
2509
13. However, the respondentInsurance Company is at liberty to recover
the deposited enhanced amount from the
respondent no.1, who is owner of the
offending vehicle.

14. No order as to cost.
----------
(2024) 5 ILRA 2509
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

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

Habeas Corpus Writ Petition No. 146 of 2024

Shiv Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Akshay Raghuvanshi, Pulkit Srivastava, Ritesh
Kumar Singh, Shivendra Singh

Counsel for the Respondent:
G.A.

A. Family Law - Child custody - The writ of
habeas corpus, as is legally well settled, is
a prerogative writ and an extraordinary
remedy. It is a writ of right and not a writ
of course and may be granted only on
reasonable ground or probable cause
being shown. (Para 9)

The role of the High Court in examining
cases of custody of a minor, in a petition
for a writ of habeas corpus, would have to
be on the touchstone of the principle of
parens
patriae
jurisdiction
and
the
paramount consideration would be the
welfare of the child. In such cases the matter
would have to be decided not solely by reference
to the legal rights of the parties but on the
predominant criterion of what would best serve
the interest and welfare of the minor. (Para 10,
14)
B. In cases of child custody, a petition
seeking a writ of habeas corpus may be
entertained
in
a
case
where
it
is
established that the custody of the child is
illegal or without authority. There may
also be cases where the custody of the
child has been forcibly altered, which
renders the present custody illegal, and in
the said circumstance, the Court may be
persuaded to issue a writ of habeas
corpus. (Para 7, 8, 23)

In a child custody matter, a writ of habeas
corpus would not be entertainable unless
it is established that the detention of the
minor child by the parent or others is
illegal and without authority of law. (Para
23)

In a petition for a writ of habeas corpus
concerning a minor child, the Court, in a given
case, may direct to change the custody of the
child or decline the same keeping in view the
attending facts and circumstances. For the said
purpose it would be required to examine
whether the custody of the minor with the
private respondent, who is named in the
petition, is lawful or unlawful. (Para 19)

There is absolutely no material on record, which
may suggest that the custody of the petitioner
no.1 (corpus) was taken away by the
respondent no.5, from the petitioner no.2, at
any point of time. The question of the custody,
therefore, being illegal, would not arise in the
facts of the case. (Para 20)

In a case such as this, where the custody of the
minor child is with his biological mother ever
since birth and there is no material to suggest
that the custody was altered illegally, at any
point of time, it may be presumed that the
custody of the child with his mother is not, prima
facie, unlawful. (Para 21)

C. In a writ court, where rights are
determined on the basis of affidavits, in a
case where the court is of a view that a
detailed enquiry would be required, it may
decline to exercise the extraordinary
jurisdiction and direct the parties to
approach the appropriate statutory forum.
(Para 16, 24)