# Smt. Ajay Kumari & Ors v. Regional Manager of National Insurance Co. Ltd., Aligarh & Ors

- **Citation:** (2021) 9 ILRA 759
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-10
- **Case number:** F.A.F.O. No. 1274 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ajay-kumari-ors-v-regional-manager-of-national-insurance-co-ltd-aligarh-ors-47393
- **Pages:** 10

## Headnote

Income of deceased divided into two partRs. 87,216 for 6 months when the sugar
mill was operational -Rs. 43, 608 for 6
onths when the mill was closed-and the su
of the two parts were divided by two-badnet income has to be calculated-Rs.
87,216 and Rs. 43, 608 has to be added.

Grant of future loss of income should also
be added-Tribunal has deducted income
tax-GPF, insurance, gratuity-could not be
deducted as net salary of the deceased
was non taxable income at the time of
accident-amount modified-enhanced.

Appeal partly allowed. (E-9)

Held, The deceased or the person concerned
should be shown to have contributed either to
the accident and the impact of accident upon
760 INDIAN LAW REPORTS ALLAHABAD SERIES
the victim could have been minimised if he had
taken care. In this case the deceased was not
the author or the co-author of the accident. On
facts, the deceased was not plying the vehicle.
Hence, the deduction of 50% from the
compensation awarded is bad and is set
aside.(para 17)

List of Cases cited:

## Text

9 All Smt. Ajay Kumari & Ors. Vs. Regional Manager of National Insurance Co. Ltd., Aligarh & Ors.
759
under the head of loss of consortium @
40,000/- each and also compensation under
separate head of "love and affection".
While
maintaining
the
grant
of
compensation to each claimant for loss of
consortium, the compensation granted
under separate head for "loss of love and
affection" was set aside.

27. In the present case, each of the
claimants
has
not
been
awarded
compensation under the head "loss of
consortium". Grant of Rs. 40,000/- only,
under the head "loss of consortium" would
be only for one dependent member of the
deceased. The compensation for "loss of
consortium" to all the claimants has not
been awarded. In view of the judgments in
Pranay Sethi (supra), Smt. Somwati (supra)
and Satinder Kaur @ Satvinder Kaur
(supra) if the compensation @ 40,000/- to
all the 8 claimants had been awarded, the
total amount of compensation would have
been on the much higher side than the
awarded amount. Although the claimants
have not filed any appeal for enhancement
of the amount of compensation by grant of
compensation to all the claimants under
"loss of consortium" but considering the
aforesaid fact and also that Motor Vehicles
Act is a beneficial legislation, the total
awarded amount deserves not be reduced
and the amount of Rs. 15,000/- awarded
under the head of loss of love and affection
is held to be also towards "loss of
consortium".

28. If, all the claimants had been
awarded compensation under "loss of
consortium" and also under separate head
of "loss of love and affection" the matter
would have been otherwise.

29. On point No.2 it is held that the
grant of compensation of Rs. 15,000/- shall
also be towards "loss of consortium". The
award does not call for interference with
respect to that amount of Rs. 15,000/-.

30. The appeal is dismissed.
----------
(2021)09ILR A759
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2021

BEFORE

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

F.A.F.O. No. 1274 of 2020

Smt. Ajay Kumari & Ors. ...Appellants
Versus
Regional Manager of National Insurance
Co. Ltd., Aligarh & Ors. ...Respondents

Counsel for the Appellants:
Sri A.T. Pandey

Counsel for the Respondents:

Income of deceased divided into two partRs. 87,216 for 6 months when the sugar
mill was operational -Rs. 43, 608 for 6
onths when the mill was closed-and the su
of the two parts were divided by two-badnet income has to be calculated-Rs.
87,216 and Rs. 43, 608 has to be added.

Grant of future loss of income should also
be added-Tribunal has deducted income
tax-GPF, insurance, gratuity-could not be
deducted as net salary of the deceased
was non taxable income at the time of
accident-amount modified-enhanced.

Appeal partly allowed. (E-9)

Held, The deceased or the person concerned
should be shown to have contributed either to
the accident and the impact of accident upon
760 INDIAN LAW REPORTS ALLAHABAD SERIES
the victim could have been minimised if he had
taken care. In this case the deceased was not
the author or the co-author of the accident. On
facts, the deceased was not plying the vehicle.
Hence, the deduction of 50% from the
compensation awarded is bad and is set
aside.(para 17)

List of Cases cited:

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

2. Vimal Kanwar & ors. Vs Kishore Dan & ors.,
2013 (3) T.A.C. 6 (S.C.), 2013(3) T.A.C. 6(SC)

3. Bajaj Allianz General Insurance Co.Ltd. Vs
Smt. Renu Singh & ors., First Appeal From Order
No. 1818 of 2012 decided on 19.7.2016

4.Khenyei Vs New India Assurance Co. Ltd. &
ors., 2015 LawSuit (SC) 469

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

6.Smt. Hansagori P. Ladhani Vs The Oriental
InsuranceCo. Ltd., reported in 2007(2) GLH 291

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

8.Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd., First Appeal From
Order No.2871 of 2016 decided on 19.3.2021

9. A.Vs Padma Vs Venugopal, [2012(1) GLH
(SC), 442]

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

1. Heard Sri A.T. Pandey, learned
counsel for the appellant, Sri N.K.
Srivastava, learned counsel appearing for
National Insurance Company Limited and
perused the judgment and order impugned.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 17.01.2020 passed by Motor
Accident Claims Tribunal, Court No.4,
Aligarh
(hereinafter
referred
to
as
'Tribunal') in M.A.C.P. No.318 of 2016
awarding a sum of Rs.3,20,256/-.

3. The claimants are the widow,
mother, daughter and son of the deceased.
The Tribunal has considered the annual
income of the deceased as Rs.65, 412/-.
The income of the deceased was claimed as
Rs.1,30,824/- per year but the Tribunal has
decided that the income of the deceased
would be Rs.87, 216 for six months and
Rs.43,608/- for another six months when
the sugar mill was closed and hence has
held that income would be Rs.65,412/- per
year.

4 . It is further submitted that the
incident is of the year 2015 and at that time
the deceased was in the employment of
Sugar Mill, therefore, the Tribunal has
erred in assessing the annual income of the
deceased
and
has
awarded
less
compensation to the claimant-appellants.

5. The counsel for respondent has
contended that this figure cannot be
clubbed together with the income of the
deceased as Rs.87,216/- (for a period of six
months when the mill was functional) plus
Rs.43, 608/- for another six months when
the mill remain closed. The average income
will have to be considered, which would be
Rs.87,216/-.

6. The income of the deceased was
Rs.87,216/- for the first six months and for
the later six months when Sugar Mill was
closed was Rs.43,608/- but the Tribunal has
clubbed Rs.87,216/- with Rs.43,608/- and
has divided the same by two, which could
not have been done, the reason, even the
income of the deceased cannot be said to be
Rs.65,412/- per year. His income has to be
9 All Smt. Ajay Kumari & Ors. Vs. Regional Manager of National Insurance Co. Ltd., Aligarh & Ors.
761
added. We are adding the amount, namely,
Rs.87216/- plus Rs.43,608/- as income as
was paid to the deceased. The deceased
was having employment and therefore as
per judgment of Pranay Sethi and the
judgment cited by the counsel for the
appellant i.e. National Insurance Co. Ltd.
Vs. Indira Srivastava 2008(2) SCC 763
wherein the term income has been defined
in paras 18, 19 and 20, which are
reproduced as under:

"18. The term 'income' in P.
Ramanatha Aiyar's Advanced Law Lexicon
(3rd Ed.) has been defined as under :

"The value of any benefit or
perquisite whether convertible into money or
not, obtained from a company either by a
director or a person who has substantial
interest in the company, and any sum paid by
such company in respect of any obligation,
which but for such payment would have been
payable by the director or other person
aforesaid, occurring or arising to a person
within the State from any profession, trade or
calling other than agriculture."

It has also been stated :

'INCOME' signifies 'what comes in'
(per Selborne, C., Jones v. Ogle, 42 LJ
Ch.336). 'It is as large a word as can be used'
to denote a person's receipts '(per Jessel,
M.R. Re Huggins, 51 LJ Ch.938.) income is
not confined to receipts from business only
and means periodical receipts from one's
work, lands, investments, etc. AIR 1921 Mad
427 (SB). Ref. 124 IC 511 : 1930 MWN 29 :
31 MLW 438 AIR 1930 Mad 626 : 58 MLJ

337."

19. 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
profession 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.

20. In N. Sivammal & Ors. v.
Managing Director, Pandian Roadways
Corporation & Ors. [(1985) 1 SCC 18],
this Court took into consideration the pay
packet of the deceased."

7. The word net income will have to
be considered, therefore, the argument of
the respondent that the income of the
deceased Rs.1,30,824/- per year cannot be
considered to be the income of the
deceased cannot be accepted.

8. The appellants had to be granted
future loss of income, which has not been
granted by the Tribunal without assigning
any reason. The Tribunal in its judgment
deducted 1/3rd for personal expenses. The
deceased was working in the Sugar Mill
since 1996. The salary of the deceased was
Rs.14,536/- per month. The salary slip was
proved by P.W.4. The crushing season of
the Sugar Mill was from November to May
only. The Mill when it was not working the
salary was remained the same but he would
be paid half of the amount.

9. The Tribunal deducted 50% of
Rs.1,30,824/-
as
income
tax,
GPF,
insurance, gratuity, which could not have
been done as in the year 2015 the income
of the deceased was Rs.1,30,824/- per year,
which was non taxable income. The
Supreme Court in the case of Vimal
Kanwar and others Vs. Kishore Dan and
762 INDIAN LAW REPORTS ALLAHABAD SERIES
others, 2013 (3) T.A.C. 6 (S.C.), 2013(3)
T.A.C. 6(SC) held that the certain amounts
cannot be deducted, hence we hold that
Rs.1,30,824/- was the annual income of the
deceased, to which 30% will have to be
added as the deceased died at the age of 43
years (age bracket of 41-45 years will
apply). He was survived by two minor
children, mother and his widow, hence he
deduction of 1/4th cannot be granted as
requested by learned counsel for the
appellant but it would have to be 1/3rd and
not 1/4th.

10. The deceased died at the age of 43
years (age bracket of 41-45 years),
therefore, the multiplier would be 14.

11. The Tribunal has held that the
deceased too negligent also in driving the
vehicle. The reasoning given by the Tribunal
to hold the deceased negligent and that he
had contributed to 50% of the accident is
perverse, just because there was collusion of
two vehicles, and that the driver of the car
was having valid driving license and the
registration of the vehicle was there and just
because the the license of the deceased was
not produced before the Tribunal, it cannot
mean that he was negligent. The ocular
evidence of P.W.3 on the contrary goes to
show that the deceased was driving his
motorcycle on his correct side. Thus, the
finding on facts is not only bad in law but is
perverse, therefore, we hold that the Tribubal
has committed an error in holding the
deceased to have contributed negligence and
due to which accident had taken place. The
vehicle involved in the accident is Car and
motorcycle. The Tribunal has given its
finding just because of the fact that the
driving license of the deceased was nor
produced and only this fact will not permit us
to hold that there was contributory negligence
on the part of the deceased.

12. Having heard the learned counsel
for the parties, let us consider the
negligence from the perspective of the law
laid down.

13. The term negligence means failure
to exercise care towards others which a
reasonable and prudent person would in a
circumstance or taking action which such a
reasonable person would not. Negligence
can be both intentional or accidental which
is normally accidental. More particularly, it
connotes reckless driving and the injured
must always prove that the either side is
negligent. If the injury rather death is
caused by something owned or controlled
by the negligent party then he is directly
liable otherwise the principle of "res ipsa
loquitur" meaning thereby "the things
speak for itself" would apply.

14. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or
author of the accident would be liable for
his contribution to the accident having
taken place.

15. The Division Bench of this Court
in First Appeal From Order No. 1818 of
2012 ( Bajaj Allianz General Insurance
Co.Ltd. Vs. Smt. Renu Singh And
Others) decided on 19.7.2016 has held as
under :

"16. Negligence means failure to
exercise required degree of care and
caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence.
9 All Smt. Ajay Kumari & Ors. Vs. Regional Manager of National Insurance Co. Ltd., Aligarh & Ors.
763
It is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one. It is rather a
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no
legal consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

17. It would be seen that burden
of proof for contributory negligence on the
part of deceased has to be discharged by
the opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection
where two roads cross each other, it is the
duty of a fast moving vehicle to slow down
and if driver did not slow down at
intersection, but continued to proceed at a
high speed without caring to notice that
another vehicle was crossing, then the
conduct of driver necessarily leads to
conclusion that vehicle was being driven by
him rashly as well as negligently.

18. 10th Schedule appended to
Motor Vehicle Act contain statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation
clearly directs that the driver of every
motor vehicle to slow down vehicle at
every intersection or junction of roads or
at a turning of the road. It is also
provided that driver of the vehicle should
not enter intersection or junction of roads
unless he makes sure that he would not
thereby endanger any other person.
Merely, because driver of the Truck was
driving vehicle on the left side of road
would
not
absolve
him
from
his
responsibility to slow down vehicle as he
approaches
intersection
of
roads,
particularly when he could have easily
seen, that the car over which deceased
was
riding,
was
approaching
intersection.

19. In view of the fast and
constantly increasing volume of traffic,
motor vehicles upon roads may be
regarded to some extent as coming within
the principle of liability defined in
Rylands V/s. Fletcher, (1868) 3 HL (LR)
330.
From
the
point
of
view
of
pedestrian, the roads of this country have
been rendered by the use of motor
vehicles, highly dangerous. 'Hit and run'
cases where drivers of motor vehicles
who have caused accidents, are unknown.
In fact such cases are increasing in
number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the
case may be, should be entitled to recover
damages if principle of social justice
should have any meaning at all.

20. These provisions (sec.110A
and sec.110B of Motor Act, 1988) are not
merely
procedural
provisions.
They
substantively affect the rights of the parties.
The right of action created by Fatal
Accidents Act, 1855 was 'new in its species,
new in its quality, new in its principles. In
every way it was new. The right given to
legal representatives under Act, 1988 to file
an application for compensation for death
due to a motor vehicle accident is an
enlarged one. This right cannot be hedged
in by limitations of an action under Fatal
764 INDIAN LAW REPORTS ALLAHABAD SERIES
Accidents Act, 1855. New situations and
new dangers require new strategies and
new remedies.

21. In the light of the above
discussion, we are of the view that even if
courts may not by interpretation displace
the principles of law which are considered
to be well settled and, therefore, court
cannot dispense with proof of negligence
altogether in all cases of motor vehicle
accidents, it is possible to develop the law
further on the following lines; when a
motor
vehicle
is
being
driven
with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits (per three-Judge Bench in Jacob
Mathew V/s. State of Punjab, 2005 0
ACJ(SC) 1840).

22. By the above process, the
burden of proof may ordinarily be cast on
the defendants in a motor accident claim
petition to prove that motor vehicle was
being driven with reasonable care or that
there is equal negligence on the part the
other side."
 emphasis added

16. The Apex Court in Khenyei Vs.
New India Assurance Company Limited
& Others, 2015 LawSuit (SC) 469 has
held as under:

"4. It is a case of composite
negligence where injuries have been
caused to the claimants by combined
wrongful act of joint tort feasors. In a case
of accident caused by negligence of joint
tort feasors, all the persons who aid or
counsel or direct or join in committal of a
wrongful act, are liable. In such case, the
liability is always joint and several. The
extent of negligence of joint tort feasors in
such a case is immaterial for satisfaction of
the claim of the plaintiff/claimant and need
not be determined by the by the court.
However, in case all the joint tort feasors
are before the court, it may determine the
extent of their liability for the purpose of
adjusting inter-se equities between them at
appropriate stage. The liability of each and
every joint tort feasor vis a vis to
plaintiff/claimant cannot be bifurcated as it
is joint and several liability. In the case of
composite negligence, apportionment of
compensation between tort feasors for
making payment to the plaintiff is not
permissible as the plaintiff/claimant has the
right to recover the entire amount from the
easiest targets/solvent defendant.

14. There is a difference between
contributory and composite negligence. In
the case of contributory negligence, a
person who has himself contributed to the
extent cannot claim compensation for the
injuries sustained by him in the accident to
the extent of his own negligence;whereas in
the case of composite negligence, a person
who has suffered has not contributed to the
accident but the outcome of combination of
negligence of two or more other persons.
This Court in T.O. Anthony v. Karvarnan
& Ors. [2008 (3) SCC 748] has held that in
case of contributory negligence, injured
need
not
establish
the
extent
of
responsibility
of
each
wrong
doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong doer separately. It is only in the case
of contributory negligence that the injured
himself has contributed by his negligence
in the accident. Extent of his negligence is
required to be determined as damages
recoverable by him in respect of the
injuries have to be reduced in proportion to
9 All Smt. Ajay Kumari & Ors. Vs. Regional Manager of National Insurance Co. Ltd., Aligarh & Ors.
765
his contributory negligence. The relevant
portion is extracted hereunder :

"6. 'Composite negligence' refers
to the negligence on the part of two or
more persons. Where a person is injured as
a result of negligence on the part of two or
more wrong doers, it is said that the person
was injured on account of the composite
negligence of those wrong-doers. In such a
case, each wrong doer, is jointly and
severally liable to the injured for payment
of the entire damages and the injured
person has the choice of proceeding
against all or any of them. In such a case,
the injured need not establish the extent of
responsibility
of
each
wrong-doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong-doer separately. On the other hand
where a person suffers injury, partly due to
the negligence on the part of another
person or persons, and partly as a result of
his own negligence, then the negligence of
the part of the injured which contributed to
the accident is referred to as his
contributory negligence. Where the injured
is guilty of some negligence, his claim for
damages is not defeated merely by reason
of the negligence on his part but the
damages recoverable by him in respect of
the injuries stands reduced in proportion to
his contributory negligence.

7. Therefore, when two vehicles
are involved in an accident, and one of the
drivers claims compensation from the other
driver alleging negligence, and the other
driver denies negligence or claims that the
injured claimant himself was negligent,
then it becomes necessary to consider
whether the injured claimant was negligent
and if so, whether he was solely or partly
responsible for the accident and the extent
of his responsibility, that is his contributory
negligence. Therefore where the injured is
himself partly liable, the principle of
'composite negligence' will not apply nor
can there be an automatic inference that
the negligence was 50:50 as has been
assumed in this case. The Tribunal ought to
have examined the extent of contributory
negligence of the appellant and thereby
avoided
confusion
between
composite
negligence and contributory negligence.
The High Court has failed to correct the
said error."

18.
This
Court
in
Challa
Bharathamma &Nanjappan (supra) has
dealt with the breach of policy conditions
by the owner when the insurer was asked to
pay the compensation fixed by the tribunal
and the right to recover the same was given
to the insurer in the executing court
concerned if the dispute between the
insurer and the owner was the subjectmatter of determination for the tribunal
and the issue has been decided in favour of
the insured. The same analogy can be
applied to the instant cases as the liability
of the joint tort feasor is joint and several.
In the instant case, there is determination
of inter se liability of composite negligence
to the extent of negligence of 2/3rd and
1/3rd of respective drivers. Thus, the
vehicle - trailor-truck which was not
insured with the insurer, was negligent to
the extent of 2/3rd. It would be open to the
insurer being insurer of the bus after
making payment to claimant to recover
from the owner of the trailor-truck the
amount to the aforesaid extent in the
execution proceedings. Had there been no
determination of the inter se liability for
want of evidence or other joint tort feasor
had not been impleaded, it was not open to
settle such a dispute and to recover the
amount in execution proceedings but the
remedy would be to file another suit or
766 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate proceedings in accordance
with law.

What emerges from the aforesaid
discussion is as follows :

(i) In the case of composite
negligence, plaintiff/claimant is entitled to
sue both or any one of the joint tort feasors
and to recover the entire compensation as
liability of joint tort feasors is joint and
several.

(ii) In the case of composite
negligence, apportionment of compensation
between two tort feasors vis a vis the
plaintiff/claimant is not permissible. He
can recover at his option whole damages
from any of them.

(iii) In case all the joint tort feasors
have been impleaded and evidence is
sufficient, it is open to the court/tribunal to
determine inter se extent of composite
negligence
of
the
drivers.
However,
determination of the extent of negligence
between the joint tort feasors is only for the
purpose of their inter se liability so that one
may recover the sum from the other after
making
whole
of
payment
to
the
plaintiff/claimant to the extent it has satisfied
the liability of the other. In case both of them
have been impleaded and the apportionment/
extent
of
their
negligence
has
been
determined by the court/tribunal, in main
case one joint tort feasor can recover the
amount from the other in the execution
proceedings.

(iv) It would not be appropriate
for the court/tribunal to determine the extent
of composite negligence of the drivers of two
vehicles in the absence of impleadment of
other joint tort feasors. In such a case,
impleaded joint tort feasor should be left, in
case he so desires, to sue the other joint tort
feasor in independent proceedings after
passing of the decree or award."

emphasis added

17. The latest decision of the Apex
Court in Khenyei (Supra) has laid down
one further aspect about considering the
negligence
more
particularly
composite/contributory
negligence.
The
deceased or the person concerned should be
shown to have contributed either to the
accident and the impact of accident upon the
victim could have been minimised if he had
taken care. In this case the deceased was not
the author or the co-author of the accident.
On facts, the deceased was not plying the
vehicle. Hence, the deduction of 50% from
the compensation awarded is bad and is set
aside.

18. This takes this Court to the issue of
compensation. The income of the deceased
in the year of accident and looking to his
profession
can
be
considered
to
be
Rs.130,824/- per year to which as the
deceased was in the age bracket of 41 to 45
years, 30% as future loss of income requires
to be added in view of the decision of the
Apex Court in Pranay Sethi (Supra). As
far as amount under the head of nonpecuniary damages are concerned, it should
be Rs.70,000/- in stead of Rs.15,000/-. As
far as multiplier is concerned, it would be
14.

19. Hence, the total compensation
payable to the appellants is computed
herein below:

i. Income Rs.1,30,824/-

ii. Percentage towards future
prospects : 30% namely Rs.39.247/-
9 All Smt. Ajay Kumari & Ors. Vs. Regional Manager of National Insurance Co. Ltd., Aligarh & Ors.
767

iii. Total income : Rs. 130,824 +
39247 = Rs.17,0071x1/3=56690/-

iv. Income after deduction of
1/3rd : Rs. 113381/- (rounded up)

v. Annual income : Rs.113381/-

vi. Multiplier applicable : 14

vii.
Loss
of
dependency:
Rs.113381 x 14 = Rs.1587334/-

viii. Amount under non-pecuniary
head : 70,000/-

ix.
Total
compensation
:
16,57,334/-

20. 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."

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

22. 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 respondent-Insurance
Company shall calculate the compensation
and 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 the amount is deposited.
The amount already deposited be deducted
from the amount to be deposited.

INCOME TAX DEDUCTION

23. 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, 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 in their proportion 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
exceed
Rs.50,000/- in any financial year, the
deduction is not permissible, registry of the
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.
768 INDIAN LAW REPORTS ALLAHABAD SERIES

24. As far as disbursement is concerned
the Tribunal before passing orders of fix
deposit or investment follow the guidelines
issued in A.V. Padma Vs. Venugopal,
[2012(1) GLH (SC), 442].

25. We request the Registrar General
to forward this judgment to the concerned
Tribunal (Sri Narendra Singh, HJS.)
whenever he is posted with a request to be
more careful as he has not considered the
judgments of Apex Court.

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

27. Let record of court below be sent
back to the Tribunal concerned.
----------
(2021)09ILR A768
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2021

BEFORE

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

F.A.F.O. No. 1295 of 2019

United India Insurance Co. Ltd., Allahabad
 ...Appellant
Versus
Smt. Anita & Ors. ...Respondents

Counsel for the Appellant:
Sri Nagendra Kumar Srivastava

Counsel for the Respondents:
Sri Manish Tandon

Deceased was in age bracket of 35-40multiplier of 16 will be applied-income tax
without considering the deduction is badorder remodified.
Partly allowed. (E-9)

List of Cases cited:

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

2.Manasvi Jain Vs Delhi Transport Corp. Ltd.&
ors. (2014) 13 SCC 22

3. Vimal Kanwar & ors. Vs Kishore Dan & ors.
(2013) 7 SCC 476

4.Smt. Hansagori P. Ladhani Vs The Oriental
InsuranceCo. Ltd., reported in 2007 (2) GLH 291

5.A.Vs Padma Vs Venugopal reported in 2012
(1) GLH (SC) 442

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

1 . Heard Sri N.K. Srivastava, learned
counsel for the appellant and Sri Manish
Tandon,
learned
counsel
for
the
respondents.

2. This appeal, at the behest of
Insurance
Company,
challenges
the
judgment and award dated 07.02.2019
passed
by
Motor
Accident
Claims
Tribunal/12th Additional District Judge,
Kanpur Nagar (hereinafter referred to as
'Tribunal') in M.A.C.P. No.461 of 2017
awarding a sum of Rs.78,83,928/- with
interest at the rate of 7% as compensation.

3. It is submitted by learned counsel
for the appellant that the deceased was in
the age bracket of 35-40, therefore,
multiplier to be applied would be 16. The
fact that the Tribunal has gone by schedule
is bad. The schedule has been found faulty
and Tribunal ought to have relied on
judgment
of
National
Insurance
Company Limited Vs. Pranay Sethi and