# Shriram General Insurance Company Ltd., Jaipur Rajasthan v. Smt. Ranjana Kushwaha & Ors

- **Citation:** (2021) 9 ILRA 65
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-05
- **Case number:** First Appeal From Order No. 3066 of 2019
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shriram-general-insurance-company-ltd-jaipur-rajasthan-v-smt-ranjana-kushwaha-47459
- **Pages:** 7

## Headnote

Sri Ram Singh, Sri Amit Kumar Singh

Motor
accident
claim-amount
of
compensation
challenged-widow
granted
compansionate
appointment-amount
under
head of future loss of income was deducted on
the ground of her employment-such deduction
is bad.

Appeals partly allowed. (E-9)

List of Cases cited:

## Text

9 All. Shriram General Insurance Company Ltd., Jaipur Rajasthan Vs. Smt. Ranjana Kushwaha & Ors.
65

42. A copy of this order shall be
transmitted by the Registry of this Court to
all the Judgeships for information and
compliance.

43. All pending applications are
disposed off. Matter consigned.
----------
(2021)09ILR A65
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2021

BEFORE

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

First Appeal From Order No. 3066 of 2019
with
First Appeal From Order No. 224 of 2020

Shriram General Insurance Company Ltd.,
Jaipur Rajasthan ...Appellant
Versus
Smt. Ranjana Kushwaha & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Vijay Prakash Mishra

Counsel for the Respondents:
Sri Ram Singh, Sri Amit Kumar Singh

Motor
accident
claim-amount
of
compensation
challenged-widow
granted
compansionate
appointment-amount
under
head of future loss of income was deducted on
the ground of her employment-such deduction
is bad.

Appeals partly allowed. (E-9)

List of Cases cited:

1. Smt. Sumitra Kaur & ors. Vs New India
Insurance Co. Ltd. by Regional Manager & ors.
2013 (1) AICC 244,

2.Dhruvnath Tiwari & ors. Vs Guldesh Kumar &
ors. 2012 (1) AICC 366

3. N.K.Vs Brothers Pvt. Ltd. Vs M. Karumai
Ammal & ors. 1980 ACJ 435

4.Ravi Vs Badri Narayan & ors. 1 (2011) ACC
704 AC

5. Oriental Insurance Co. Ltd.Vs Kheeramani &
ors. 2012 (2) TAC 598

6. U.P.S.R.T.C. Tedi Koti Lucknow Vs Smt. Shanti
Devi & ors. 2003 (3) TAC 61 (Allahabad)

7.U.P.S.R.T.C. Vs Rabiya Begam & anr., 2016 (1)
AICC 188

8. Manasvi Jain Vs Delhi Transport Corp. & ors.
2014 ACJ 1416

9. Meena Devi & ors. Vs Sikandar Singh & ors.
2006 ACJ 2140 h

10. Sunita & anr. Vs Rajasthan State Road
Transport Corp. & anr. AIR 2019 SC 994

11. Vimla Devi & ors. Vs National Insurance Co.
Ltd. & anr. (2019) 2 SCC 186

12.Vimal Kanwar & ors. Vs Kishore Dan & ors.
AIR 2013 SC 3830

13.National Insurance Co. Ltd. Vs Smt. Urmila
Devi & anr. decided on 02.06.2020 in F.A.F.O.
No. 1022 of 1999

14. Smt. Sarla Verma & ors. Vs Delhi Transport
Corp. & ors. 2009 ACJ 1298

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

16. Sunita & ors. Vs Rajasthan State Road
Transport Corp. & anr., 2019 LawSuit (SC)190,

17. Mangla Ram Vs Oriental Insurance Co. Ltd.
& ors., 2018 (5) SCC 656

18. Vimla Devi & ors. Vs National Insurance Co.
Ltd. & anr., (2019) 2 SCC 186
66 INDIAN LAW REPORTS ALLAHABAD SERIES
19.F.A.F.O. No.2389 of 2016 (National Insurance
Co. Ltd. Vs Smt. Vidyawati Devi & 2 ors.)
decided on 27.7.2016.

20. Kirti vs Oriental Insurance Company: 2021
(1) TAC 1

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

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

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

(Delivered by Hon'ble Subhash Chand, J.)

1. Heard learned counsel for the
parties and perused the judgment and order
impugned.

2. Both these appeals arise out of
common
judgment
and
order
dated
30.05.2019, they have been heard together
and are being decided by a common
judgment.

3. First Appeal From Order No. 3066
of 2019, has been filed by the Shriram
General Insurance Company with whom
vehicle No. U.P. 79 T 3872 was insured,
and, the First Appeal From Order No. 224
of 2020 has been filed by claimantappellants and in these appeals judgment
and award dated 30.05.2019 passed by
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.1, Bareilly (hereinafter referred to as
'Tribunal') in M.A.C.P. Case No. 653 of
2017 awarding a sum of Rs. 51,15,760/- as
compensation are under challenge.

4. As culled out from the record that on
29.07.2017 when deceased Vijay Kumar was
returning to go to his home through highway
and was arrived near Apollo Tyre Agency
situated on G.T. Road, a Canter No. UP 79 T
3872 being driven rash and negligent manner,
Vijay Kumar was dashed by which he
received injuries and during the treatment at
Siddh Vinayak Hospital, he was declared died,
his age was 39 years and he was a Teacher and
his salary was Rs. 40,000/- per month. The
FIR was lodged by brother of deceased on
31.07.2017 and thereafter charge-sheet was
submitted. The owner filed his reply and has
only accepted the averments of paragraph nos.
15 and 16 of the claim petition. He has denied
that no accident took place by the involvement
of his vehicle. His driver, namely Naushad had
proper driving license and his vehicle was
ensured with Sriram Insurance Company and,
therefore, they were liable to pay the amount.

5. The Insurance Company filed its
reply of denial. The driver did not accept
the involvement of his vehicle nor he
accepted that he was driving the vehicle in
rash and negligent manner.

6. The submissions of learned counsel
for the Insurance Company that the vehicle
was not involved and its driver was not
negligent also is negative.

7. Parties are referred as claimants
and Insurance Company for convenience.

8. It is submitted by learned counsel
for the claimants that deceased Vijay
Kumar
Kushwaha
was
an
Assistant
Teacher in government school and his
salary was Rs. 40,000/- per month. At the
time of accident the age of the deceased
was 39 years. The deceased has left behind
him his widow, parents and daughter.

9. Sri Vijay Prakash Mishra, learned
counsel for the Insurance Company has
raised the following grounds:-
9 All. Shriram General Insurance Company Ltd., Jaipur Rajasthan Vs. Smt. Ranjana Kushwaha & Ors.
67

(i) The vehicle cannot be said to
be involved in the accident as the oral
testimony of the investigator of the
Insurance Company is to the effect that one
of the injured has conveyed to him that the
accident took place with Bus whereas, two
days belated FIR mentions that the truck,
which was a goods container vehicle was
involved in the accident and, therefore, it
can be said that the vehicle insured by the
appellant was a planted vehicle.

(ii) As far as the deceased is
concerned, it is submitted that father is not
dependent on the deceased, who was aged
about 39 years and, therefore, deduction
should be 1/3 towards personal expenses
and not 1/4 as done by the tribunal.

(iii) As far as income of the
deceased is concerned, it is stated that
deceased was Assistant Teacher and his
income as assessed per month is just and
proper.

10. The main grievance of the
Company is that as far as the quantum is
concerned as the widow has been given a
job and the amount which is being paid to
her be deducted and in alternative it is
stated that non grant of future loss is just
and proper as widow is granted job.

11. Taking the issue, namely issue of
negligence, the driver of the truck has not
stepped into the witness box. The PW-2
and PW-3 are eye witnesses as they were
going on morning walk then they saw the
accident happening. Nothing has been
elucidated by the Insurance Company so
that the fact that there is no negligence by
the driver of the truck and that the vehicle
was not involved in the accident. The
reliance placed on the judgments of Smt.
Sumitra Kaur and others Vs. New India
Insurance
Company
Limited
by
Regional Manage and others 2013 (1)
AICC 244, Dhruvnath Tiwari and others
Vs. Guldesh Kumar and others 2012 (1)
AICC 366, N.K.V. Brothers Private
Limited Vs. M. Karumai Ammal and
others 1980 ACJ 435, Ravi Vs. Badri
Narayan and others 1 (2011) ACC 704
AC and Oriental Insurance Company
Limited Vs. Kheeramani and others
2012 (2) TAC 598. All these decisions
cited and evaluated by learned Tribunal
will not permit us to concur with the
submissions of learned counsel for the
Insurance Company that the vehicle was
not involved and that there was no
negligent of the driver of the vehicle.
Though, the FIR was against the unknown
vehicle, but in the charge-sheet, the Tanker
was mentioned along with its number.
Charges have been levelled against the
driver and he has accepted before the
criminal court that his vehicle was involved
in the accident and accepted his guilt and,
therefore, the Tribunal has relied on
decision of this High Court in case of
U.P.S.R.T.C. Tedi Koti Lucknow Vs.
Smt. Shanti Devi and others 2003 (3)
TAC 61 (Allahabad), therefore, finding on
issue no.1 cannot be found fault with.
Hence, we hold that the driver of the
vehicle, which was involved in the
accident, was negligent. This takes us to the
compensation awarded by the Tribunal.
The Tribunal has relied on the judgment in
case of 2016 (1) AICC 188 U.P.S.R.T.C.
Vs. Rabiya Begam and another and held
that as the widow has been granted what is
known as compassionate appointment, they
would not be entitled for any amount under
the head of future loss of income. This is
nothing but as misreading of judgment of
Manasvi Jain Vs. Delhi Transport
Corporation and others 2014 ACJ 1416
on which the learned judge has placed
reliance. He has not deducted the said
amount from the income of the deceased,
68 INDIAN LAW REPORTS ALLAHABAD SERIES
but has felt that no future loss of income
can be granted, as the widow has got
appointment.
This
aspect
has
been
challenged by the Insurance Company as
well as the claimants.

12. The Tribunal held that "it is thus
submitted that principle of balancing of
loss and gains so as to arrive at a just and
fair amount of compensation has been
accepted by this Court as well. On behalf of
the Insurance Companyu Hodgson Vs.
Trapp (1983) 3 All ER 870 has been relied
on in which our attention has particularly
been drawn to the following observation
made at All Erp.873j-874b." and granted
multiplier of 15, which is maintained as the
deceased was in the age bracket of 36-40
years. He had wife, daughter and mother,
therefore, the deductions for personal
expenses would be 1/3 and not 1⁄4 and we
are in agreement with the submissions of
learned counsel for the appellants that the
father cannot be said to be dependent and
as far as deductions is concerned for
personal expenses, it is different then
computing
the
compensation.
The
judgment in Pranay Sethi (supra) has been
wrongly interpreted by the learned judge.
The Tribunal has considered the income to
be Rs. 38040/- per month and minus the
Rs. 667/-, which was monthly tax and
considered the income of the deceased to
be Rs. 37,376/- per month with which, we
concur that out of which 1/3 is deducted.
The learned judge has misread the
judgments on future loss of income just
because the widow has been granted
compassionate appointment, that amount
cannot be deducted nor can he refused what
is known as future loss of income. The
reliance on several judgments have been
misread by the learned Tribunal. The
judgement of Pranay Sethi (supra) has been
misread as the future loss income is the
income which the deceased would have
earned and not that the other are given what
is known as compassionate appointment.
Judgment in case of Meena Devi and
others Vs. Sikandar Singh and others
2006 ACJ 2140 has been wrongly
interpreted. The future loss of income has
to be granted and hence we recalculate the
amount. In totality of the facts and
circumstances, in view of the decision of
Apex Court in case of Sunita and another
Vs. Rajasthan State Road Transport
Corporation and another AIR 2019 SC
994 as well as Vimla Devi and others Vs.
National Insurance Company Ltd. and
another (2019) 2 SCC 186, it cannot be
held that the vehicle was not involved in
the accident just because at the time when
officer of the Insurance Company went to
the hospital, one of the injured had
conveyed that the accident had occurred
with a Bus. This has to be proved to the
guilt by the Insurance Company, which has
not been done and, therefore, the said
submission of Insurance Company is false.
The submission of Insurance Company as
far as deduction is concerned, is accepted
and we deduct 1/3 towards personal
expenses. As far as the submission of
claimants is concerned, the amount, which
is being paid her by the job, the same
cannot be denied. The judgment in case of
Vimal Kanwar and others Vs. Kishore
Dan and others AIR 2013 SC 3830 will
not have to be applied in full cost as the
principle of future loss of income cannot be
co-related with the income, which the
widow receives by doing work. It is her
personal income post job, the Tribunal
should not deduct any amount if spouse
was a earning spouse and therefore, the
findings that as the widow had been given
job, no future loss of income should be
granted,
is
fallacious
finding, which
requires to be upturned. We have also
9 All. Shriram General Insurance Company Ltd., Jaipur Rajasthan Vs. Smt. Ranjana Kushwaha & Ors.
69
fortified our view in case of National
Insurance Company Ltd. Vs. Smt.
Urmila Devi and another decided on
02.06.2020 in F.A.F.O. No. 1022 of 1999
that strict proof of law of evidence cannot
be applied to Motor Vehicle Act as it
would frustrate the purpose of beneficial
legislation. Insurance Company to prove
breach of policy, which was not done,
hence liable to pay the amount. Future loss
of income can be considered in a different
manner for people with job.

13. The appeal of the Insurance
Company requires to be decided on the
grounds raised by it. The first ground raised
is that the oral testimony of PW-2 should
not have been relied by the Tribunal, as he
was not an eye witness. He was not even
named in the charge-sheet. He can be said
to be a got up witness. It is further
submitted that the Tribunal failed to
consider the evidence gathered by life line
station to Police Station Baradari that
injured was admitted in the hospital and the
evidence of one other person named as Ritu
Puri, who had conveyed orally that accident
occurred with Bus and FIR being belated
was lodged against driver of the Canter,
which was involved in the accident. It is
next submitted that the claimants failed to
prove that the vehicle insured by the
Insurance Company-appellant herein was
involved in the accident and that the
accident had taken place with the Bus and
not with the Canter. As far as the
compensation is concerned, it is submitted
that father of the deceased was dependent
on
him,
though
he
was
receiving
government pension. It is also submitted
that the Tribunal did not follow the
decision of the Apex Court in celebrated
judgment of Smt. Sarla Verma and others
Vs. Delhi Transport Corporation and
others 2009 ACJ 1298 and deducted what
is known as 1⁄4 for personal expenses of the
deceased. The dependency unit if the father
is not held to be dependent, then 1/3 should
have been deducted. It is next submitted
that the salary certificate should not have
been accepted in evidence, as it was not a
proved document. As far as the issue of
negligence is concerned, it is submitted that
the driver of the Canter was not negligent
and that the award is arbitrary, illegal and
based on conjecture and surmises. It is
further submitted that the duty of the owner
to give intimation as per the provisions of
Section 104 will absolved them from their
liability. We would decide all the issues
raised by the Insurance Company. First
issue as far as the appeal by the claimants is
concerned, they have felt aggrieved as the
Tribunal has not considered grant of future
loss of income to the appellants even
though the matter was decided after the
judgement in case of National Insurance
Company Limited Vs. Pranay Sethi and
Others, 2017 0 Supreme (SC) 1050.

14. The issue of involvement of the
vehicle as well as negligence will have to
be decided. The vehicle is contended not to
be involved. The reason being, it is
submitted that one of the witnesses had
opined that accident occurred with a Bus.
The judgment of Apex Court in case of
Vimla Devi and Sunita Devi (supra) will
not permit us to up turn the findings of the
Tribunal that the vehicle was involved. The
driver of the truck should have taken proper
care and caution and has not entered into
the witness box.

15. This takes this Court to the issue
of compensation. The income of the
deceased in the year of accident and
looking to his profession namely that
deceased was an Assistant Teacher, to
which as he was below 40 years, 40% as
70 INDIAN LAW REPORTS ALLAHABAD SERIES
future loss of income requires to be added
in view of the decision of the Apex Court
in National Insurance Company Limited
Vs. Pranay Sethi and Others, 2017 0
Supreme (SC) 1050.

16. It has been time and again held that
trappings of civil and criminal proceedings
cannot be applied in a very strict manner. We
have also fortified our view by the decisions
in Sunita and others Vs. Rajasthan State
Road
Transport
Corporation
and
Another, 2019 LawSuit (SC)190, Mangla
Ram Vs. Oriental Insurance Company
Limited and Others, 2018 (5) SCC 656 and
Vimla Devi and others Vs. National
Insurance Company Limited and another,
(2019) 2 SCC 186. The compensation is
ordered to be reassessed in view of the
submission made by learned counsel for the
appellant and in view of the decision in
F.A.F.O.
No.2389
of
2016
(National
Insurance Co. Ltd. Vs. Smt. Vidyawati
Devi And 2 Others) decided on 27.7.2016.
On the basis of the recent judgments laying
principles for ascertaining compensation. The
right to compensation would accrue on the
date the accident took place. The law
enunciated in Kirti vs Oriental Insurance
Company: 2021 (1) TAC 1 that the
compensation awarded by a court ought to be
just, reasonable and must undoubtedly guided
by principles of fairness, equity and good
conscious. In our case the Tribunals had not
granted what can be said to be just
compensation.

17. 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.37,376/-

ii. Percentage towards future
prospects : 50% namely Rs.18688/-

iii. Total income : Rs. 37,376 +
18688 = Rs. 56,064/-

iv. Income after deduction of
1/3rd : Rs. 37376/- (rounded up)

v. Annual income : Rs.37376 x
12 = Rs. 4,48,512/-

vi. Multiplier applicable : 15

vii.
Loss
of
dependency:
Rs.4,48,512 x 15 = Rs.67,27,680/-

viii.
Amount
under
filial
consortium and other non pecuniary heads :
Rs.70,000/-

x.
Total
compensation
:
67,97,680/-

18. 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."

19. In view of the above, both the
appeals are 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
9 All. Suneeta Singh Vs. State of U.P. & Ors.
71
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.

20. In view of the ratio laid down by
Hon'ble Gujarat High Court in case of Smt.
Hansagori P. Ladhani Vs. The Oriental
Insurance Company Ltd., reported in
2007 (2) GLH 291, the total amount of
interest, accrued on the principle 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 At, 1961
and if the amount of interest does not
exceeds Rs. 50,000/- in any financial year,
registry of the 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) and in First Appeal
From Order No. 2871 of 2016 (Tej Kumari
Sharma Vs. Chola Mandlam M.S. General
Insurance Co. Ltd.) decided on 19.03.2021
while disbursing the amount.

21.

Fresh
award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunal 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 . The same is to
be applied looking to the facts of each
fees, if any. Considering the ratio laid
down by the Hon'ble Apex Court in case
of A.V. Padma Vs. Venugopal 2012 (1)
GLH (SC) 442, the order of investment is
not passed because applicants/claimants
are neither illiterate of rustic villagers.

22. We are thankful to Sri Ram
Singh,Amit Kumar
Singh
and
Vijay
Prakash Mishra, Advocates for getting the
matter decided promptly.

23. Record and proceedings be sent
back to the Tribunal.
----------
(2021)09ILR A71
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2021

BEFORE

THE HON'BLE YASHWANT VARMA, .J.

Writ A No. 4845 of 2021
AND
Writ A No. 4571 of 2021
AND
Writ A No. 4882 of 2021
AND
Writ A No. 5728 of 2021
AND
Writ A No. 5914 of 2021
AND
Writ A No. 6966 of 2021
AND
Writ A No. 8595of 2021
AND
Writ A No. 6716 of 2021
AND
Writ A No. 8587 of 2021

Suneeta Singh ...Petitioner
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Petitioner:
Sri J.P. Singh, Sri Yadvendra Pratap Singh