# Smt. Baijanti Devi & Anr v. Rajesh Sisodiya & Ors

- **Citation:** (2023) 8 ILRA 789
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-12
- **Case number:** First Appeal from Order No. 757 of 1997
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-baijanti-devi-anr-v-rajesh-sisodiya-ors-50592
- **Pages:** 4

## Headnote

A. Civil Law-Motor Vehicles Act,1988Section
173-Challenge
to-award
of
compensation-Tribunal did not grant any
amount towards future loss of income. the
income of the deceased can be considered
to be Rs.2,400/- per month- The deceased
falls within the category of self employed
and his age was in the age bracket of 35
years at the time of accident, hence, 40%
of income shall be added towards future
loss of income even as per Gobald Motor
Case and 1/3rd shall be deducted for
personal expenses as held in Pranay Sethi
Case - multiplier of 16 will be admissible
as per Smt. Sarla Verma Case- the wife of
the deceased shall be entitled to get
Rs.30,000/- towards loss of consortium in
the light of Judgment in the case of
Pranay Sethi - Further, Rs.50,000/- to the
son of the deceased be granted in view of
the decision in Kurvan Ansari- Hence, the
total amount of compensation is granted
Rs. 5,10,080/-, the rate of interest would
be 7% from the date of filing of the claim
petition till award and 6% thereafter till
deposit of amount.(Para 1 to 16)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

8 All. Smt. Baijanti Devi & Anr. Vs. Rajesh Sisodiya & Ors.
789
set aside. The bills have been produced and
therefore this additional sum will have to
be paid by the U.P.S.R.T.C is the owner of
the vehicle for the tort of its employees. Rs.
58,000/- is paid by the Insurance Company
is under other head as insured. The
judgments of Consumer Forum would not
be applicable. This appeal is preferred by
the owner of the vehicle for damages
caused to the vehicle and for the loss of
business due to the said accident (tort
committed) is allowed.

7. In view of the above, this appeal is
allowed.
The
tort
feasor
namely
U.P.S.R.T.C will deposit an additional sum
of Rs. 50,000/- with 7% interest within 12
weeks from today before the tribunal. The
amount shall not be kept in fixed deposit as
long time has elapsed.

8. Record and proceedings be sent
back to the Court below forthwith.

9. This Court is thankful to Sri Sharve
Singh, learned counsel for the appellant and
Sri
S.K.Mishra,
learned
counsel
for
U.P.S.R.T.C.
----------
(2023) 8 ILRA 789
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2023

BEFORE

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

First Appeal from Order No. 757 of 1997

Smt. Baijanti Devi & Anr. ...Appellants
Versus
Rajesh Sisodiya & Ors. ...Respondents

Counsel for the Appellants:
Sri Madhav Jain
Counsel for the Respondents:
Sri Vinod Kant Srivastava (Senior Advocate), Ms.
Anita Srivastava

A. Civil Law-Motor Vehicles Act,1988Section
173-Challenge
to-award
of
compensation-Tribunal did not grant any
amount towards future loss of income. the
income of the deceased can be considered
to be Rs.2,400/- per month- The deceased
falls within the category of self employed
and his age was in the age bracket of 35
years at the time of accident, hence, 40%
of income shall be added towards future
loss of income even as per Gobald Motor
Case and 1/3rd shall be deducted for
personal expenses as held in Pranay Sethi
Case - multiplier of 16 will be admissible
as per Smt. Sarla Verma Case- the wife of
the deceased shall be entitled to get
Rs.30,000/- towards loss of consortium in
the light of Judgment in the case of
Pranay Sethi - Further, Rs.50,000/- to the
son of the deceased be granted in view of
the decision in Kurvan Ansari- Hence, the
total amount of compensation is granted
Rs. 5,10,080/-, the rate of interest would
be 7% from the date of filing of the claim
petition till award and 6% thereafter till
deposit of amount.(Para 1 to 16)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Kurvan Ansari @Kurvan Ali Vs Shyam Kishore
Murmu (2021) 0 AIJEL-SC 67995

2. Gobald Motor Services Ltd. & anr. Vs R.M.K.
Velusamy (1962) SCR 1 929

3. National Ins. Co. Vs Pranay Sethi (2014) 4
TAC 637 SC

4. Smt. Sarla Verma Vs DTC (2009) 2 TAC 677
SC

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

1. By way of this appeal, the
appellants has challenged the judgment and
790 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 7.2.1997 passed by Motor
Accident
Claims
Tribunal/
XIIIth
Additional District Judge, Agra (hereinafter
referred to as 'Tribunal') in M.A.C. Case
No. 359 of 1995 (Smt. Baijanti Devi and
another Vs. Rajesh Sisodiya and others)
awarding a sum of Rs.1,00,500/- as
compensation to the claimants/appellants
with interest at the rate of 12% per annum
from the date of filing the claim petition till
the amount is deposited.

2. Heard Mr. Madhav Jain, learned
counsel for the appellants and Ms. Anita
Srivastava,
learned
counsel
for
the
respondent no.5-Oriental Insurance Co.
Ltd. Perused the record and judgment.

3. Though, there are two vehicles
involved, one insured by Oriental Insurance
Co. Ltd. and other by New India Assurance
Co. Ltd. None has appeared on behalf of
New India Assurance Co. Ltd. ]

4. The brief facts of the case are that
claimants-appellants filed a Motor Accident
Claim Petition before the Tribunal for
claiming the compensation under Motor
Vehicles Act, 1988 for the death of Suresh
Babu in a road accident with the averments
that on 25.9.1995 Suresh Babu-deceased was
traveling as a passenger in bus bearing no. U.P.
80G 9898, which was going on the Agra and
Mathura Road. When the bus reached near the
220 KV Vidyut Station, a truck no. U.P. 85A
9705 came from the opposite side, which was
being driven very rashly and negligently by its
driver. The truck driver lost the control of the
truck and hit the bus. In this accident,
passenger/deceased sustained grievous injuries
and succumbed to the said injuries.

5. Aggrieved mainly with the
compensation awarded, the appellants have
preferred this appeal.

6. The accident is not in dispute. The
issue of negligence has attained finality as
neither the Insurance Company nor the
owner of the vehicle has disputed the same
even in oral submissions. The driver of the
said vehicle was having valid and effective
driving licence on the date of accident is
also a decided fact. The vehicle being
insured and there being no breach of policy
condition is a finding, which has attained
finality. The only issue to be decided is the
quantum of compensation awarded by the
Tribunal.

7. The only dispute which now remains
is that compensation of Rs.1,00,500/- with
12% interest is not acceptable to the
appellant. The learned Tribunal did not grant
any amount towards future loss of income.
The learned Tribunal has considered the
income of the deceased to be Rs.17,500/- per
annum, though, he had his business and
thereafter erroneously deducted 40% holding
that the deceased was negligent. The learned
Tribunal has applied the multiplier of 15, the
Tribunal has granted Rs.3,000/- towards
funeral expenses and Rs.3,000/- towards loss
of consortium.

8. Though, it is submitted that it was a
case of composite negligence and not of
contributory negligence as the deceased
was passenger in the bus and the accident
occurred between bus and truck.

9. The bone of contention is that
deceased was a passenger in the bus and
even if the driver of the bus is considered to
have contributed to the tune of 60% and
40% for the truck. No amount could have
been deducted from the compensation
payable to the legal heirs of the deceased.

10. It is also submitted by learned
counsel for the appellants that the amount
8 All. Smt. Baijanti Devi & Anr. Vs. Rajesh Sisodiya & Ors.
791
awarded under non-pecuniary heads is also
on the lower side and is required to be
enhanced. It is further stated that the
deceased was 35 years of age at the time of
accident, hence, the multiplier applicable
would be 16. He has relied on the decision
in National Insurance Co. Ltd. Vs.
Pranay Sethi and others, 2017 LawSuit
(SC) 1093 & Sarla Verma Vs. Delhi
Transport Corporation, (2009) 6 SCC
121 in support of above arguments.

11.

Learned
counsel
for
the
respondent-Oriental Insurance Co. Ltd. has
submitted that they may be given recovery
rights against the other tort-feasor. The
Insurance Company of the truck, who have
may deposit the entire amount would be
entitled to recover from the Insurance
Company of the bus, who have failed to
appear for a period of 23 years. It is also
submitted that any cogent evidence of his
income of the deceased and he was not
income tax payer, therefore, the income
fixed by the learned Tribunal does not
require any interference by this Court.

12. Having heard learned counsel for
the parties, the income of the deceased can
be considered to be Rs.2,400/- per month.
The deceased will fall within the category
of self employed and his age was in the age
bracket of 35 years at the time of accident,
hence, 40% of income shall be added
towards future loss of income even as per
the judgment of Hon'ble Apex Court in the
case of Gobald Motor Services Ltd. and
another v. R.M.K. Velusamy, 1962 SCR (1)
929 and 1/3rd shall be deducted for
personal expenses as held by Hon'ble Apex
Court in National Insurance Company vs.
Pranay Sethi [2014 (4) TAC 637 (SC)].
Keeping in view the age of the deceased,
multiplier of 16 will be admissible 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)].

13. As far as non-pecuniary damages
are concerned, the wife of the deceased
shall be entitled to get Rs.30,000/- towards
loss of consortium in the light of Judgment
in the case of Pranay Sethi (supra). Further,
Rs.50,000/- to the son of the deceased be
granted in view of the decision in Kurvan
Ansari Alias Kurvan Ali Vs. Shyam
Kishore Murmu, 2021 (0) AIJEL-SC
67995.

14. Hence, the total amount of
compensation, in view of the above
discussions, payable to the appellantsclaimants is being computed herein below:

(i) Annual Income : Rs.28,800/- Per
annum (Rs.2,400 X 12)

(ii)
Percentage
towards
future
prospects 40% : Rs. 11,520/-

(iii) Total income : Rs. 28,800/- +
Rs.11,520/- = Rs. 40,320/-

(iv) Income after deduction 1/3:
Rs.40,320/- - Rs.13,440/- = Rs.26,880/-

(v) Multiplier applicable : 16

(vi) Loss of Dependency : Rs. 26,880/-
X 16 = Rs.4,30,080/-

(vii) Amount under loss of consortium
: Rs. 30,000/- + Rs.50,000/- = Rs.80,000/-

(viii)
Total
compensation
:
Rs.4,30,080/-
+
Rs.80,000/-
=
Rs.5,10,080/-

15. As far as issue of rate of interest is
concerned, the rate of interest would be 7%
from the date of filing of the claim petition till
award and 6% thereafter till deposit of amount.

16. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
792 INDIAN LAW REPORTS ALLAHABAD SERIES
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount within a period of 8 weeks from
today with interest as directed above. The
amount already deposited be deducted from
the amount to be deposited.

17. If the Oriental Insurance Company
deposit the entire amount, they would be
entitled to recover 60% amount from the owner,
driver and the Insurance Company of the bus,
who have failed to appear before this Court.

18. Record and proceedings be sent back
to the Tribunal forthwith. The amount be paid to
the claimants and no amount be kept in fixed
deposit.

19. 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 is not passed
because applicants /claimants are neither
illiterate or rustic villagers.

20. 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 and others Vs. Hari Singh and another)
while disbursing the amount. The said decision
has also been reiterated by High Court Gujarat
in R/Special Civil Application No.4800 of 2021
(The Oriental Insurance Co. Ltd. v. Chief
Commissioner of Income Tax (TDS) decided
on 5.4.2022.

21. 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.

22. The Tribunal shall follow the
guidelines issued by the Apex Court in Bajaj
Allianz General Insurance Company Private
Ltd. v. Union of India and others vide order
dated 27.1.2022, as the purpose of keeping
compensation is to safeguard the interest of the
claimants. As long period has elapsed, the
amount be deposited in the Saving Account of
claimants in Nationalized Bank without F.D.R.
----------
(2023) 8 ILRA 792
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2023

BEFORE

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

First Appeal from Order No. 1726 of 2001

U.P.S.R.T.C. ...Appellant
Versus
Smt. Neerja Bhatiya & Ors. ...Respondents