# Shyam Sunder & Ors v. Ram Kishan & Anr

- **Citation:** (2022) 4 ILRA 1062
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-13
- **Case number:** First Appeal From Order No. 925 of 2009
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-sunder-ors-v-ram-kishan-anr-47604
- **Pages:** 4

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168 & 173--Compensation--
Determination of--Case of the claimants that
deceased was coming to his hostel with his
brother when he reached in front of his hostel
offending
motor-cycle
driven
rashly
and
negligently hit him from behind- monthly
income was ` 6,000 from tuitions and coaching-
-Insurer has not challenged its liability- Award
granted towards future loss of income and
under other heads of pecuniary damages- future
prospects granted- applying multiplier of 18 -
Funeral expenses and loss of estate granted.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

1062 INDIAN LAW REPORTS ALLAHABAD SERIES
owner and driver if it is proved that the
owner was aware and had given the vehicle
to Shri Haridas Gautam to drive and that
Haridas Gautam had no license to drive the
vehicle the recovery rights are given, are
these facts being proved by Insurance
Company.

12.

The
respondent-Insurance
Company shall deposit the additional
amount after recalculating within a period
of 12 weeks from today with interest at the
rate of 7.5% per annum 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.

13. 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 claimants for any
financial
year
exceed
Rs.50,000/-,
insurance company/owner is/are entitled to
deduct appropriate amount under the head
of 'Tax Deducted at Source' (T.D.S) 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 no T.D.S shall be
deductible.

14. The registry of 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.

15. 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
order of investment be passed by tribunal
seeing
the
disbursement
status
of
applicants /claimants.

16. Record be sent back to tribunal
forthwith.

17. This Court is thankful to both the
learned Advocates for ably assisting this
Court.
----------
(2022)04ILR A1062
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2021

BEFORE

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

First Appeal From Order No. 925 of 2009

Shyam Sunder & Ors. ...Appellants
Versus
Ram Kishan & Anr. ...Respondents

Counsel for the Appellants:
Sri A.K. Ojha

Counsel for the Respondents:
Sri Rahul Sahai
4 All. Shyam Sunder & Ors. Vs. Ram Kishan & Anr.
1063
Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168 & 173--Compensation--
Determination of--Case of the claimants that
deceased was coming to his hostel with his
brother when he reached in front of his hostel
offending
motor-cycle
driven
rashly
and
negligently hit him from behind- monthly
income was ` 6,000 from tuitions and coaching-
-Insurer has not challenged its liability- Award
granted towards future loss of income and
under other heads of pecuniary damages- future
prospects granted- applying multiplier of 18 -
Funeral expenses and loss of estate granted.

Appeal partly allowed. (E-9)

List of Cases cited:

1. National Insurance Comp. Ltd. Vs Pranay
Sethi & ors. MANU/SC/1366/2017

2. Munna Lal Jain & ors. Vs Vipin Kumar Sharma
& ors. MANU/SC/0640/2015

3. Sarla Verma & ors. Vs Delhi Transport
Corporation & ors. MANU/SC/0606/2009

4. Kurvan Ansari & ors. Vs Shyam Kishore
Murmu & ors. MANU/SC/1068/2021

5. National Insurance Company Ltd. Vs Mannat
Johal & ors. MANU/SC/0589/2019

6. Hansaguri Prafulchandra Ladhani & ors. Vs
The Oriental Insurance Company Ltd. & ors.
MANU/GJ/2100/2006

(Delivered by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the
claimants have challenged the judgment
and order dated 29.11.2008, passed by
Motor Accident Claims Tribunal, Jhansi
(herein after referred to as 'the Tribunal')
in MACP No.292 of 2007 (Shyam Sunder
and others vs. Ram Kisan and another),
awarding a sum of Rs.2,66,000/- as
compensation to the claimants with interest
at the rate of 6% per annum.

2. The claim petition was filed by the
appellants, parents and brothers of the
deceased before the Tribunal with the
averments that on 9.5.2007 at about 9:45
p.m., the deceased Bhupendra was coming
to his hostel with his brother at Panwadi
Road, Rath, District-Hameerpur and when
he reached in front of his hostel, a
motorcycle bearing No.UP-C-1676 hit him
from behind. Motorcycle was being driven
by its driver very rashly and negligently. In
this accident, the deceased sustained
grievous injuries and died on the way to the
hospital. The deceased was 24 years of age
and his monthly income was Rs.6,000/- by
imparting tuitions and coaching.

3. Heard Shri A.K. Ojha, learned
counsel for the appellants and perused the
judgment of the Tribunal.

4. The accident is not in dispute. The
insurance company has not challenged the
liability on it. The issue of negligence has
attained finality. Now the only issue to be
decided is the quantum of compensation
awarded by the Tribunal.

5. Learned counsel for the appellants
has submitted that the deceased was
unmarried boy of 24 years age. He is in the
profession
of
imparting
tuitions
and
coaching by which his monthly income was
Rs.6,000/-, but the learned Tribunal did not
consider the aforesaid facts and assessed
his monthly income only at Rs.3,000/-. It is
emphatically submitted by learned counsel
for the appellants that the deceased was
having a very bright future as he was welleducated, but the Tribunal has not awarded
any sum towards loss of future income. It is
next submitted that the learned Tribunal
has awarded only Rs.2,000/- for funeral
expenses,
which
is
on
lower
side.
Moreover, no amount is awarded in other
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
heads of non-pecuniary damages, such as
loss of estate and loss of filial consortium.
Rate of interest is awarded oly 6%, which
is also on lower side. No other point in
calculating the compensation is disputed by
the appellants.

6. It is admitted fact that the deceased
was 24 years of age at the time of accident.
He was educated person. It is alleged that
he was earning Rs.6,000/- per month by
imparting tuitions. Keeping in view the fact
that the age of the deceased was 24 years
and he was educated and the accident had
taken place in the year 2007, we fix his
monthly income as Rs.6,000/- per month,
namely Rs.72,000/- per annum.

7. The Tribunal has not added any
percentage of amount towards future loss
of income, which is, in our opinion, grave
error. Since, the deceased will fall within
the category of self-employed and his age
was 24 years at the time of accident, 40%
shall be added towards future prospects as
held by Hon'ble Apex Court in National
Insurance Company vs. Pranay Sethi
[2014 (4) TAC 637 (SC)]. Hon'ble Apex
Court has also held in Munna Lal Jain vs.
Vipin Kumar Sharma [2015 (3) TAC 1
(SC)] that if the deceased was unmarried,
1/2 shall be deducted for his personal
expenses. In this case, Hon'ble Apex Court
has also held that multiplier will be applied
with reference to the age of the deceased.
Therefore, keeping in view the age of the
deceased, multiplier of 18 will be applied
in the light of the judgment of Hon'ble
Apex Court in the case of Smt.Sarla
Verma vs. Delhi Transport Corporation
[2009 (2) TAC 677 (SC)]. As far as nonpecuniary damages are concerned, the
Tribunal has awarded Rs.2,000/- for funeral
expenses, which is on very lower-side. In
the light of judgment of Pranay Sethi
(supra), claimants shall be entitled to get
Rs.15,000/- each for loss of estate and
funeral expenses. Rs.40,000/- x 2 =
Rs.80,000/- towards filial consortium is
granted in the light of the judgment of
Hon'ble Apex Court in the case of Kurvan
Ansari alias Kurvan Ali and another vs.
Shyam Kishore Murmu and another [2021
(4) TAC (SC)] .

8. Hence, the total compensation, in
view of the above discussions, payable to
the
appellants-claimants
is
being
recalculated herein below:

i.
Annual
Income
Rs.6,000/-
x 12
Rs.72,000/-
ii.
Percentage
towards
FutureProspects
(40%)
Rs.72,000/
- x 40%
Rs.28,800/-
iii.
Total
Income
Rs.72,000/
-
+
Rs.28,800/
-
Rs.1,00,800
/-
iv.
Income
after
deduction
of 1/2
Rs.1,08,00
0/-
-
Rs.50,400/
-
Rs.50,400/-
v.
Multiplier
applicable
18

vi.
Loss
of
dependency
Rs.50,400/
- x 18
Rs.
9,07,200/-
vii
.
Funeral
Expenses

Rs.15,000/-
vii
i.
Loss
of
Estate

Rs.15,000/-
ix.
Filial
Consortium
Rs.40,000/
- x 2
Rs.80,000/-

x.
Total
Compensat
ion

Rs.10,17,2
00/-

9. 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
4 All. Ram Badal Mishra Vs. U.O.I.
1065
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."

10. Learned Tribunal has awarded
rate of interest as 7% per annum but we are
fixing the rate of interest as 7.5% in the
light of the above judgment.

11. In view of the above, the appeal is
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.

12. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani vs. The
Oriental
Insurance
Company
Ltd.,
[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.
----------
(2022)04ILR A1065
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.04.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

First Appeal From Order No. 273 of 2021

Ram Badal Mishra ...Appellant
Versus
U.O.I. ...Respondent

Counsel for the Appellant:
Pradeep Kumar Singh, Amrita Singh, Manish
Kumar Srivastava

Counsel for the Respondents:
Manendra Nath Rai, Mahendra Kumar Misra

Civil Law - Railway Claims Tribunal Act,
1987 - Section 23--Condonation of delay--
Appeal for--Delay of three years and six months
in filing claim petition--Dismissal of application
for condonation of delay along with claim