# Smt. Anamika Bhardwaj & Ors. Plaintiffs/ v. Ashok Gulati & Ors

- **Citation:** (2022) 11 ILRA 237
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-15
- **Case number:** First Appeal From Order No. 3251 of 2010
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anamika-bhardwaj-ors-plaintiffs-v-ashok-gulati-ors-47807
- **Pages:** 5

## Headnote

Civil Law - Motor Accident Claim -
Compensation - Income - if the Income
Tax Returns are there, they are the
proof
of
the
income
of
the
deceased/injured
-
income
of
the
deceased would be as per the Income
Tax Returns for the Assessment Year
2006-07, namely, Rs.1,62,500/- per year
- Tribunal erroneously disbelieved the
Income Tax Return as it came to the
conclusion that chalan of paying the tax
was
not
filed
-
Tribunal's
stance
contradicts
a
beneficial
legislative
provision and is untenable - Tribunal did
not award any compensation for future
prospects hence Court granted addition
of 40% towards future loss of income of
the deceased as the deceased was below
40 years of age and was having his own
business - deceased was survived by his
widow
and
a
minor
son,
hence,
deduction towards personal expenses of
the
deceased
would
be
1/3rd
&
Multiplier would be 17 - court granted
Rs.70,000/-
towards
non
pecuniary
damages on which the claimants shall
also be entitled to 10% rise in every
three years - interest at the rate of 7.5%
from the date of filing of the claim
petition till the amount is deposited.
(Para 5,6,7,8, 10,11, 12)

Allowed. (E-5)

List of Cases cited:

## Text

11 All. Smt. Anamika Bhardwaj & Ors. Vs. Ashok Gulati & Ors.
237
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

32. Recent judgment of State of M.P
Vs. Jogendra, (2022) 5 SCC 401 and ratio
laid in the said judgment can be followed,
however, instead of seven years period
undergone of imprisonment for at least 10
years would be more than relevant in the
facts and circumstances of this case.

33. Therefore, accused-appellant is
convicted for the offence punishable under
Section 304 (Part I) of IPC and sentenced
to 10 years' rigorous imprisonment. The
fine and default sentence are maintained.

34. In view of the above, this appeal
is partly allowed. The judgment and order
impugned shall stand modified to the
aforesaid extent. Record and proceedings
be sent back to the Court below forthwith.
----------
(2022) 11 ILRA 237
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2022

BEFORE

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

First Appeal From Order No. 3251 of 2010

Smt. Anamika Bhardwaj & Ors.
 ...Plaintiffs/Appellants
Versus
Ashok Gulati & Ors.
 ...Defendants/ Respondents

Counsel for the Appellants:
Sri Hitesh Pachori

Counsel for the Opposite Parties:
Sri Anuj Srivastava
Civil Law - Motor Accident Claim -
Compensation - Income - if the Income
Tax Returns are there, they are the
proof
of
the
income
of
the
deceased/injured
-
income
of
the
deceased would be as per the Income
Tax Returns for the Assessment Year
2006-07, namely, Rs.1,62,500/- per year
- Tribunal erroneously disbelieved the
Income Tax Return as it came to the
conclusion that chalan of paying the tax
was
not
filed
-
Tribunal's
stance
contradicts
a
beneficial
legislative
provision and is untenable - Tribunal did
not award any compensation for future
prospects hence Court granted addition
of 40% towards future loss of income of
the deceased as the deceased was below
40 years of age and was having his own
business - deceased was survived by his
widow
and
a
minor
son,
hence,
deduction towards personal expenses of
the
deceased
would
be
1/3rd
&
Multiplier would be 17 - court granted
Rs.70,000/-
towards
non
pecuniary
damages on which the claimants shall
also be entitled to 10% rise in every
three years - interest at the rate of 7.5%
from the date of filing of the claim
petition till the amount is deposited.
(Para 5,6,7,8, 10,11, 12)

Allowed. (E-5)

List of Cases cited:

1. Laxmi Devi & ors. Vs Mohammad Tabbar &
anr., 2008 ACJ 0184

2. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors., LL 2021 SC 359

3. Anita Sharma Vs New India Assurance Co.
Ltd. (2021) 1 SCC 171.

4. Smt. Upasana & ors. Vs National Insurance
Co. Ltd. & ors. F.A.F.O. No. 1070 of 2017

5. National Insurance Co. Ltd. Vs Pranay Sethi
and others, 2017 LawSuit (SC) 1093

6. A.V. Padma Vs Venugopal, Reported in 2012
(1) GLH (SC), 442
238 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Smt. Hansaguri P. Ladhani Vs The Oriental
Insurance Co. Ltd., reported in 2007(2) GLH 291

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard Sri Hitesh Pachori, learned
counsel for the appellants, Sri Anuj
Srivastava,
learned
counsel
for
the
respondent and perused the record.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 17.7.2010 passed by Motor
Accident
Claims
Tribunal/Additional
District
Judge,
Court
No.11,
Agra
(hereinafter referred to as 'Tribunal') in
Claim Petition No. 260 of 2007 awarding a
sum of Rs.4,52,000/- to the claimants as
compensation for the death of their sole
bread winner with interest at the rate of 6%.

3. The accident is not in dispute. The
Insurance Company has not challenged the
liability imposed on them. The only issue
to
be
decided
is
the
quantum
of
compensation awarded.

4. It is submitted by learned counsel
for the appellant that the deceased was 29
years of age at the time of accident and was
having his own business namely he was the
owner of M/s Sheetal Drugs Distribution.
The Tribunal has considered the income of
deceased to be Rs.36,000/- per annum,
deducted 1/3 towards personal expenses,
considered the dependency as Rs. 24,000/-
per annum, granted multiplier of 17 and
added Rs. 44,500/- towards non pecuniary
damages.

5. Learned counsel for the appellant
has taken us through the record and we are
satisfied that the documentary evidence has
been brushed aside by the learned Tribunal
without assigning proper reasons. Income
Tax Return in the name of the deceased for
the Assessment Year 2006-07 which was on
record demonstrates that the income of the
deceased was Rs.1,62,500/- per year. The
earlier
Income
Tax
Return
for
the
Assessment Year 2005-06 shows that the
income of the deceased was Rs.1,10,150/-.
There are documentary evidence namely
Form 20 etc. This fact has been disbelieved
by the Tribunal though the drug license and
its photo copy has been filed. The name of
the firm was Sheetal Medical Stores. The
Tribunal has disbelieved the Income Tax
Return as it came to the conclusion that
chalan of paying the tax was not filed. The
Tribunal came to the conclusion that the
income was Rs.1,06,665/-, out of which, LIP
was of 44,341/- and, therefore, the Tribunal
has felt that income of the deceased was
Rs.62,324/-. It was further concluded by the
Tribunal that tax of Rs.19150/- was being
paid but it was not clear as to how much
amount he had invested and, therefore, the
Tribunal disbelieved this fact. The Tribunal
disbelieved
investments made by
the
deceased in Bajaj Allianz and, therefore,
held that in view of the judgment of Laxmi
Devi & Others vs Mohammad Tabbar &
Another, 2008 ACJ 01844 only Rs.3,000/-
should be considered as his income. This is
an error apparent on record as P.W.1 has
categorically mentioned that her husband
was in the business of medicine. Th license
even according to Tribunal was dated
1.12.2002. This fact should have been
considered by the Tribunal. The deceased
was a young man of 29 years. The approach
of the Tribunal is against the beneficial piece
of legislation and cannot be accepted. This is
an error apparent on the face of record
which will have to be answered by this
Court.
11 All. Smt. Anamika Bhardwaj & Ors. Vs. Ashok Gulati & Ors.
239

6. The Apex Court has time and again
held that if documentary evidence to show
income is not produced but if the Income
Tax Returns are there, they are the proof of
the income of the deceased/injured. The
Tribunal has committed a grave error in
relying on the judgment in Laxmi Devi &
Others
vs
Mohammad
Tabbar
&
Another, 2008 ACJ 01844 despite the fact
that there are documentary evidence
proved,
the
Tribunal
erroneously
considered his income to be Rs.100/- per
day.

7. Hence, we are unable to accept the
submission of Sri Anuj Srivastava, learned
counsel for the respondent that the income
which has been considered by the Tribunal
is just and proper. The finding is absolutely
perverse as Tribunal is not supposed to go
by the investment of the person for starting
a business but the income generated by
him. The income of the deceased has been
proved by the oral testimony of P.W.1 and
P.W.2 and Income Tax Returns. The
Tribunals are supposed to take a practical
view and not pedantic view. The decision
in Laxmi Devi (Supra) is applied where the
income is not at all proved and where there
is no semblance of any earning.

8. In view of the above, we are of the
view that the income of the deceased would
be as per the Income Tax Returns for the
Assessment
Year
2006-07,
namely,
Rs.1,62,500/- per year.

9. It is submitted by learned counsel
for the appellants that the Tribunal has not
granted any amount towards future loss of
income which is required to be granted. It
is further submitted by learned counsel for
the appellants that the amount under nonpecuniary heads and the rate of interest
awarded by the Tribunal are on the lower
side and are required to be enhanced in
view of the latest the decisions of the Apex
Court.

10. As far as grant of future
prospects are concerned, Tribunal has not
granted any amount for that, therefore, we
grant addition of 40% should be added
towards future loss of income of the
deceased as the deceased was below 40
years of age and was having his own
business. We are even fortified in our
view by the decision of the Apex Court in
New India Assurance Company Ltd. Vs.
Urmila Shukla and others, LL 2021 SC
359 & Anita Sharma v. New India
Assurance Co. Ltd. (2021) 1 SCC 171.
Recent decision of the Division Bench of
this Court in F.A.F.O. No. 1070 of 2017
(Smt. Upasana And 4 Others v. National
Insurance Company Ltd. And 2 Others)
decided on 11.2.2022 will also come to the
aid of the appellants herein.

11. The deceased was survived by his
widow and a minor son, hence, deduction
towards personal expenses of the deceased
would be 1/3rd as has been done by the
Tribunal. Multiplier of 17 applied by the
Tribunal is just and proper. The Tribunal
added Rs. 45,000/- for non pecuniary
damages. We see no reason why the
principle enunciated by the Apex Court in
National Insurance Co. Ltd. Vs. Pranay
Sethi and others, 2017 LawSuit (SC)
1093 should not be made applicable
wherein the Apex Court has granted
Rs.70,000/-
towards
non
pecuniary
damages. We grant Rs.70,000/- towards
non pecuniary damages on which the
claimants shall also be entitled to 10% rise
in every three years as held by the Apex
Court in Pranay Sethi (Supra) and,
therefore, we make the figure to Rs.
1,00,000/- for non pecuniary damages.
240 INDIAN LAW REPORTS ALLAHABAD SERIES

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

i. Annual Income: Rs.1,62,500/-

ii. Percentage towards future
prospects : 40% namely Rs.65,000/-

iii. Total income : Rs.1,62,500 +
65,000 = Rs.2,27,500/-

iv. Income after deduction of
1/3rd : Rs.1,51,670/- (rounded figure)

v. Multiplier applicable : 17

vi.
Loss
of
dependency:
Rs.1,51,670 x 17 = Rs.25,78,390/-

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

viii.
Total
compensation
:
Rs.25,78,390/-

13. As far as issue of rate of int has
held as under :

"13. The aforesaid features
equally apply to the contentions urged on
behalf of the claimterest 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 Courants asn to allow
the interest in this matter at any rate
higher than 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 reasothat allowed by High
Court."

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

15. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount within a period of 12 weeks from
today with interest at the rate of 7.5% from
the date of filing of the claim petition till
the amount is deposited. The amount
already deposited be deducted from the
amount to be deposited.

16. 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.

17. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguri P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, total
amount of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimant to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
11 All. Prahlad & Anr. Vs. Sarvajeet
241
and others Vs. Hari Singh and another)
while disbursing the amount.

18.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.

19. This Court is thankful to both the
counsels for getting this old matter decided.
----------
(2022) 11 ILRA 241
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 168 of 1995

Prahlad & Anr. ...Defendants/Appellants
Versus
Sarvajeet ... Plaintiff/Respondent

Counsel for the Appellants:
Sri Ramesh Chandra, Sri C.K. Rai, Sri
Fauzdar Rai, Sri Ishir Sripat, Sri J.A. Azmi,
Sri O.N. Misra, Sri Rahul Sripat, Sri S.C.
Verma, Sri S.S.P. Gupta, Sri Shachindra
Kumar Mishra, Sri Saurabh Patel

Counsel for the Respondent:
Sri R.M. Singh, Sri A.K. Singh, Sri Dinesh
Kumar Pandey, Sri Govind Krishna, Sri M.S.
Chauhan, Sri R.B. Tripathi

Civil Law - Specific Relief Act, 1963 -
Section 31 - Suit for cancellation of Sale
deed - Evidence Act, S. 101 - Burden of
proof - The expression " burden of proof
" means one of two things (1) that a
party has to prove an allegation before it
is entitled to a judgment in its favour, or
(2) that the one or the other of the two
contending parties has to introduce
evidence on a contested issue - The
questionof onus is material only where
the party on which it is placed would
eventually lose if it failed to discharge
the
same
-
Where
issuesare,
however,joined, evidence is led and such
evidence can be weighed in order to
determine the issues, the question of
burden
becomes
academic
-
Where
evidence has been led by the contesting
parties on the question in issue, abstract
considerations of onus are out of place;
truth or otherwise of the case must
always be adjudged on the evidence led
by the parties (Para 11, 12)

Plaintiff filed a suit seeking to cancel a sale
deed, alleging that due to his dependency on
the defendants' father, who had influence
over him, and his illness, the sale deed was
fraudulently
executed
in
favor
of
the
defendant - Trial Court put the burden on the
plaintiff of proving that the plaintiff was ill on
the relevant date and had put the burden of
proving that consideration had passed from
the defendants to the plaintiff on the
defendants - Plaintiff failed to produce
treating doctors - trial court found he was not
ill -First appellate court reversed this decision,
putting the burden on the defendants to
prove no fraud or misrepresentation due to
their dominant position - Held - trial court
rightly placed the burden on the plaintiff &
that the first appellate court wrongly shifted
the burden - First appellate court's decision
was set aside and the suit was dismissed.

Allowed. (E-5)

List of Cases cited:

1. Daya Shankar Vs Smt. Bachi & ors. AIR 1982
Allahabad 376

2. Narayan Bhagwantrao Gosavi Balajiwale
Vs Gopal Vinayak Gosavi & ors. AIR 1960 SC
100