# Smt. Anita Sinha & Ors v. Sri Prakash Dixit & Ors

- **Citation:** (2023) 1 ILRA 1062
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-15
- **Case number:** First Appeal From Order No. 795 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anita-sinha-ors-v-sri-prakash-dixit-ors-47616
- **Pages:** 5

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Sections 163-A, 168 & 173 - UP Motor
Vehicles Rules, 1998 - Rules 220-A(3),
220-A(3)(ii) & 220-A(6): - claimant's
Appeal - enhancement of compensation -
appreciation of evidence & factum of
accident - accident and accidental injuries
are not in dispute - deceased was died due
to accidental injuries - insurance Co. did
not prove that there was any breach of
policy conditions - Tribunal framed four
issues - after considering documentary
evidences - tribunal held that driver of
truck was the sole author of the accident -
tribunal decided all the issues in favour of
the claimants except issue no. 4 regarding
age of deceased. (Para - 3)

(B) Civil Law - Motor Vehicles Act, 1988 -
Sections 163-A, 168 & 173 - UP Motor
Vehicles Rules, 1998 - Rules 220-A(3), 220A(3)(ii) & 220-A(6): - claimant's Appeal -
quantum of compensation - determination
of income & future prospectus - deceased at
the age of 45 years and he was working in a
Private Co. as an officer and was also
working into the consultancy work - ITR
shows that he was earning Rs. 1,67,855/-
per annum - Tribunal has committed an
error as it has not considered the income
from the other sources - court held that, the
income tax returned are the mirror of
income of the deceased and therefore same
has to be considered - future prospectus to
be reckoned - which is determined in
accordance with law laid down by the
Hon'ble Apex court. (Para - 3, 5)

(C) Civil Law - Motor Vehicles Act, 1988 -
Sections 163-A, 168 & 173 - UP Motor
Vehicles Rules, 1998 - Rule 220-A(3), 220A(3)(ii)& 220-A(6): - claimant's Appeal -
quantum of compensation - determination -
Multiplier & Deduction - deceased to be
considered in the age bracket of 45 - 47
cannot be accepted - record shows that he
was 45 years of age - post-mortem report
also shows that the age of the deceased was
45 years - held - the multiplier would be '14'
not 13 as granted by the tribunal as per the
law laid down in case of Sarla Verma's. (Para
- 4, 7)

(D) Civil Law - Motor Vehicles Act, 1988
- Sections 163-A, 168 & 173 - UP Motor
Vehicles Rules, 1998 - Rules 220-A(3),
220-A(3)(ii) & 220-A(6): - claimant's
Appeal - quantum of compensation - has
to be determined as per law laid down in
Sarla Verma's case, Pranay Shethi' case,
Smt.
Sangita
Arya's
case,
National
Insurance
Co.
Ltd.
Case
-
hence,
compensation awarded by the tribunal,
enhanced to Rs. 21,06,636/- with 7.5%
rate of interest - Appeal allowed -
impugned award modified accordingly.
(Para 4, 9, 10, 12)

Appeal is partly allowed. (E-11)

List of Cases cited:

## Text

1062 INDIAN LAW REPORTS ALLAHABAD SERIES

The
minor
variations
and
contradictions in the evidence of the
eyewitnesses will not tilt the benefit of
doubt in favour of the accused but when
the contradictions in the evidence of the
prosecution witnesses proves to be fatal to
the
prosecution
case
then
those
contradictions go to the root of the matter
and in such cases the accused gets the
benefit of doubt."

50. On the basis of the above
discussion
and
appreciation
of
documentary and oral evidence available
on record, it is concluded that the
prosecution has failed to bring home the
charge u/s 452, 366, 376D and 313 IPC
against
the
appellants.
Material
contradictions in the evidence of the
witnesses of the fact render the theory of
the prosecution to be doubtful. The
witnesses
have
made
material
improvements and embellishments in their
testimonies. The evidence of Prosecutrix
examined as PW1, and other witnesses PW2 Smt. Jaitoon, PW-3 Islam Nabi, and PW4 Ramzani on reading as a whole do not
inspire confidence and do not have any ring
of truth. Appreciation of oral evidence of
witnesses of fact raises doubt about the
commission of the crime by the appellants.
The
Learned
Trial
Court
has
not
appreciated the evidence available on
record in a rightful manner and hence
wrongly convicted the appellants.

51. In view of the above, the
appellants are entitled to the benefit of the
doubt since the prosecution has failed to
prove the charges against the appellants
beyond reasonable doubt. Thus, the appeal
is liable to be allowed and the appellants
deserve to be acquitted.

ORDER

52. The criminal appeal is accordingly
allowed. The Judgement of conviction and
order of sentence passed by the learned trial
court dated 26.10.2017 passed in S.T. No. 533
of 2014 (State Vs. Aslam & Anr.) is hereby set
aside. Accordingly, the appeallants Aslam and
Rafiq are acquitted from the charges under
sections 452, 366, 376-D and 313 IPC.

53. The Appellant Aslam is in jail. He be
released forthwith if his detention is not
required in any other case.

54. Appellant Rafiq is on bail. He need
not surrender. His personal bonds is cancelled
and sureties are discharged from their liability.

55. The trial court shall ensure that the
appellants shall furnish bonds as required
under Section 437A Cr.P.C. before the trial
court within two weeks from the date of
communication of this order to the trial court.

56. Let the certified copy of this order be
transmitted to the trial court for compliance.

57. The lower court record be also
transmitted to the trial court.
----------
(2023) 1 ILRA 1062
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2021

BEFORE

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

First Appeal From Order No. 795 of 2011

Smt. Anita Sinha & Ors. ...Appellants
Versus
Sri Prakash Dixit & Ors. ...Respondents

Counsel for the Appellants:
1 All. Smt. Anita Sinha & Ors. Vs. Sri Prakash Dixit & Ors.
1063
Sri D.K. Tiwari, Sri Shreesh Srivastava

Counsel for the Respondents:
Sri Amresh Sinha

(A) Civil Law - Motor Vehicles Act, 1988 -
Sections 163-A, 168 & 173 - UP Motor
Vehicles Rules, 1998 - Rules 220-A(3),
220-A(3)(ii) & 220-A(6): - claimant's
Appeal - enhancement of compensation -
appreciation of evidence & factum of
accident - accident and accidental injuries
are not in dispute - deceased was died due
to accidental injuries - insurance Co. did
not prove that there was any breach of
policy conditions - Tribunal framed four
issues - after considering documentary
evidences - tribunal held that driver of
truck was the sole author of the accident -
tribunal decided all the issues in favour of
the claimants except issue no. 4 regarding
age of deceased. (Para - 3)

(B) Civil Law - Motor Vehicles Act, 1988 -
Sections 163-A, 168 & 173 - UP Motor
Vehicles Rules, 1998 - Rules 220-A(3), 220A(3)(ii) & 220-A(6): - claimant's Appeal -
quantum of compensation - determination
of income & future prospectus - deceased at
the age of 45 years and he was working in a
Private Co. as an officer and was also
working into the consultancy work - ITR
shows that he was earning Rs. 1,67,855/-
per annum - Tribunal has committed an
error as it has not considered the income
from the other sources - court held that, the
income tax returned are the mirror of
income of the deceased and therefore same
has to be considered - future prospectus to
be reckoned - which is determined in
accordance with law laid down by the
Hon'ble Apex court. (Para - 3, 5)

(C) Civil Law - Motor Vehicles Act, 1988 -
Sections 163-A, 168 & 173 - UP Motor
Vehicles Rules, 1998 - Rule 220-A(3), 220A(3)(ii)& 220-A(6): - claimant's Appeal -
quantum of compensation - determination -
Multiplier & Deduction - deceased to be
considered in the age bracket of 45 - 47
cannot be accepted - record shows that he
was 45 years of age - post-mortem report
also shows that the age of the deceased was
45 years - held - the multiplier would be '14'
not 13 as granted by the tribunal as per the
law laid down in case of Sarla Verma's. (Para
- 4, 7)

(D) Civil Law - Motor Vehicles Act, 1988
- Sections 163-A, 168 & 173 - UP Motor
Vehicles Rules, 1998 - Rules 220-A(3),
220-A(3)(ii) & 220-A(6): - claimant's
Appeal - quantum of compensation - has
to be determined as per law laid down in
Sarla Verma's case, Pranay Shethi' case,
Smt.
Sangita
Arya's
case,
National
Insurance
Co.
Ltd.
Case
-
hence,
compensation awarded by the tribunal,
enhanced to Rs. 21,06,636/- with 7.5%
rate of interest - Appeal allowed -
impugned award modified accordingly.
(Para 4, 9, 10, 12)

Appeal is partly allowed. (E-11)

List of Cases cited:

1. Smt. Sangita Arya & ors. Vs Oriental
Insurance Co. Ltd. & ors. (2020 (5) SCC 327),

2. Vimal Kanwar & ors. Vs Kishore Dan & ors.
(AIR 2013 SC 3830),

3. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., (2017 (16) SCC 680),

4. Sarla Verma & ors. v. Delhi Transport Corp. &
anr. (2009 (6) SCC 121),

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

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

7. A. V. Padma Vs Venugopal (2012 (1) GLH (SC) 442),

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

1. Heard learned counsel for the
parties and perused the judgment and order
impugned.
1064 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 18.11.2010 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No.10, Allahabad
(hereinafter referred to as 'Tribunal') in
M.A.C.T. Case No. 602 of 2008.

3. Brief facts necessary for our
purpose, which relates to the litigation are
that the accident occurred on 02.12.2007 at
about 6.00 PM when the driver of the Truck
drove the truck rashly and negligently and
dashed the Maruti Car driven by the
deceased, whereby the deceased was plying
his car and going from Lucknow to
Gorakhpur and the deceased died due to
accidental injuries is not in dispute. The
involvement of the truck is also not in
dispute. The Insurance Company did not
prove that there was any breach of policy
conditions and they were directed to
indemnify the legal heirs of the deceased.
The owner and driver of the truck have
absented themselves and have not entered
into witness box. The respondents (owner
and driver) filed written statement, which is
one of denial. The Insurance Company also
filed its reply one of denial and there is
breach of policy conditions. The Tribunal
framed four issues and held that as the
charge-sheet was laid against the driver of
the truck and as such post mortem showed
that the injuries were sufficient to cause
death, therefore, the Tribunal case to the
conclusion that the death occurred due to
accidental injuries. The Tribunal held that
the driver of the truck was the sole author
of the accident. The issue nos. 2 and 3 were
also decided against the respondents. It is
only the finding of facts of issue no.4,
which has aggrieved the appellants herein.
The deceased was 47 years of age as
believed by the Tribunal. The deceased was
working with Uptron India Limited as an
officer and was also into the consultancy
work. The Tribunal, according to the
learned counsel for the appellant, did not
consider the income of consultancy as no
certificate was produced. The Tribunal,
according to the counsel, considered the
salary Rs. 75816/- per annum and granted
multiplier of 13 and deducted 1/3 as
personal expenses and added Rs. 9500/- as
non pecuniary damages. It is admitted
position that no amount was granted under
the head of future loss of income despite
the fact that ITR return showed that the
deceased was earning Rs. 1,67,855/- which
is bad.

4. Learned counsel for the appellants
has submitted that in recent judgment of
Apex Court in Smt. Sangita Arya and
others Vs. Oriental Insurance Company
Limited and others 2020 5 SCC 327, the
income of the deceased has to be
considered as per income tax return. It is
apparent on the face of record that income
was not considered on the ground that no
certificate was produced. However, basic
salary had to be computed along with other
emoluments, which the deceased was
receiving as per the judgment of Apex
Court in Vimal Kanwar and others Vs.
Kishore Dan and others AIR 2013 SC
3830. We cannot concur that the Tribunal
had considered the income of the deceased
at Rs. 75,816/- per annum in the year of
accident
and
the
date
of
judgment
pronounced the principle of grant of future
loss of income was invoked, therefore, as
per judgment of National Insurance
Company Limited Vs. Pranay Sethi and
others (2017) 16 SCC 680 as he was aged
about 45 years, 30% would be admissible
out of which 1/3 would be deducted as he
was survived by wife and minor son. The
multiplier would also be 14, not 13 as
granted by the Tribunal, as per judgment of
1 All. Smt. Anita Sinha & Ors. Vs. Sri Prakash Dixit & Ors.
1065
Sarla Verma and others Vs. Delhi
Transport Corporation and another
(2009) 6 SCC 121. The non pecuniary
damages would be Rs. 70,000/- + Rs.
30,000/- with interest of 7.5%.

5. We have perused the income tax
return verification form for the assessment
year 2008-09. It appears that the Tribunal
has committed an error as it has not
considered the income from other sources
in column V and therefore, there being
error apparent on this is corrected by us.
The income tax return are the mirror of
income of the deceased and therefore, same
has to be considered.

6. We are unable to accept the
submission of Anubhav Sinha, Advocate
holding brief of Sri Amresh Sinha, learned
counsel for the respondent that the tribunal
has rightly considered the rational income
and that the multiplier is just and proper as
he was self employed person no question
for grant of future prospects.

7. Submission that the deceased to be
considered in the age bracket of 45-47
cannot be accepted that record shows that
he was 45 years of age. Post mortem report
also shows that the age of the deceased was
45 years.

8. The Tribunal has discarded the
allowances from the income with the
observation that it would be only payable if
the deceased was alive, this aspect and this
fact has been erroneously recorded so as to
discard the income as reflected in the
income tax return of the year 2008-09.

9. 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. Annual Income:- 1,67,855/-

ii. Percentage towards future prospects
: 30% (Rs. 50,356/-)

iii. Total income : Rs. 2,18,211/-

iv. Income after deduction of 1/3rd :
Rs. 1,45,474/-

v. Multiplier applicable : 14

vi. Loss of dependency: Rs. 1,45,474 x
14 = Rs. 20,36,633/-

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

viii.
Total
compensation
:
Rs.
21,06,636/-

10. 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."

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

12. 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 amount be
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
deposited by the respondent-Insurance
Company within a period of 12 weeks from
today with interest at the rate of 7.5%. 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 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.

14. 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 Vs. Venugopal reported in 2012
(1) GLH (SC) 442, the order of investment
is not passed because respondents are
neither illiterate nor rustic villagers.

15. This Court is thankful to both the
counsels for getting this matter disposed of.
----------
(2023) 1 ILRA 1066
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2022

BEFORE

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

First Appeal From Order No. 1673 of 2004

New India Assurance Co. Ltd. ...Appellant
Versus
Smt. Hardei & Anr. ...Respondents

Counsel for the Appellant:
Sri S.C. Srivastava

Counsel for the Respondents:
Sri S.M. Khalid

Civil Law - The Employee's Compensation
Act, 1923 - Section - 30 : - Insurers Appeal -
against Award passed by the Workmen's
compensation Commissioner - claim Application
- Award - Substantial Question of Law -
Insurance Co. taken plea on the basis of
St.ment of owner of vehicle that death would
not be taken to be caused arising out of his
employment at the time of incident - the
workman Compensation Commissioner is the
last authority of fact - in the light of judgment of
Hon'ble Apex Court rendered in case of Golla
Rajan's & Mayan's - the High Court cannot enter
into the arena of facts unless they are proved to
be perverse as well as High court cannot
interfere unless there is a question of law is
involved - in the present appeal, so called
substantial question of law framed are question
of facts and the findings of the commissioner on
the said issues are not perverse - hence, so
called question of law framed by the insurance
Co. are answered against - therefore, this
appeal fails and dismissed - direction for
disbursement
of
awarded
amount,
accordingly.(Para - 11, 12, 13, 16)

Both Appeals are partly allowed. (E-11)