# Smt. Beena Tyagi & Ors v. Mohamed Azmer & Ors

- **Citation:** (2022) 4 ILRA 514
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-03
- **Case number:** FAFO No. 1245 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-beena-tyagi-ors-v-mohamed-azmer-ors-48346
- **Pages:** 5

## Headnote

(A) Torts Law - Motor vehicle Act,1988 -
Section
173
-
enhancement
of
compensation - The Income Tax Act,
1961- Section 194A (3) (ix) - total amount
of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis - 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' - if the amount of interest does
not exceeds Rs.50,000/- in any financial
year - registry of Tribunal is directed to
allow the claimants to withdraw the
amount without producing the certificate
from
the
concerned
Income-Tax
Authority.(Para - 15)

Marriage ceremony of son of deceased -
deceased came out from mandap to see-off his
friends - standing beside road - Bolero Car
driven very rashly and negligently by its driver
- dashed deceased - after coming on wrongside - in front of gate of mandap - deceased
sustained serious fatal injuries - died -
deceased 43 years - serving in a private
company - Claimants/appellants awarded Rs.6,
87,000/-,
with 7% rate
of
interest as
compensation - Tribunal not awarded any sum
for future loss of income aggrieved - hence
appeal.(Para - 2,5)

HELD:-Tribunal
has
committed
error
in
discarding the documentary evidence and
assessing the income as Rs.6,000/- per month
only. Tribunal commited grave error in not
adding any percentage of amount towards
future loss of income. 30% added towardws
future prospects.Total compensation payable to
the appellants-claimants is Rs.30,12,000/-. Rate
of interest fixed at 7.5%.(Para - 9,11,12)

Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

514 INDIAN LAW REPORTS ALLAHABAD SERIES
Act. The present proceedings raised by the
applicant are clearly misconceived and an
abuse of process of the court. It was always
open for the applicant to approach the writ
court and assail validity of the decision of
the Executive Council and restoring to the
proceedings under the Contempt of Courts
Act and is nothing but abuse of the said
process.

21. In light of the above, the contempt
petition is dismissed with a cost of Rs.
500/- which shall be deposited in the
Library Funds of Awadh Bar Association,
Lucknow within two months from today.
----------
(2022)04ILR A514
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2022

BEFORE

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

FAFO No. 1245 of 2016

Smt. Beena Tyagi & Ors. ...Appellants
Versus
Mohamed Azmer & Ors. ...Respondents

Counsel for the Appellants:
Sri Bharat Bhushan Paul, Sri Swithin
Subhashish Lawren

Counsel for the Respondents:
Sri Komal Mehrotra

(A) Torts Law - Motor vehicle Act,1988 -
Section
173
-
enhancement
of
compensation - The Income Tax Act,
1961- Section 194A (3) (ix) - total amount
of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis - 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' - if the amount of interest does
not exceeds Rs.50,000/- in any financial
year - registry of Tribunal is directed to
allow the claimants to withdraw the
amount without producing the certificate
from
the
concerned
Income-Tax
Authority.(Para - 15)

Marriage ceremony of son of deceased -
deceased came out from mandap to see-off his
friends - standing beside road - Bolero Car
driven very rashly and negligently by its driver
- dashed deceased - after coming on wrongside - in front of gate of mandap - deceased
sustained serious fatal injuries - died -
deceased 43 years - serving in a private
company - Claimants/appellants awarded Rs.6,
87,000/-,
with 7% rate
of
interest as
compensation - Tribunal not awarded any sum
for future loss of income aggrieved - hence
appeal.(Para - 2,5)

HELD:-Tribunal
has
committed
error
in
discarding the documentary evidence and
assessing the income as Rs.6,000/- per month
only. Tribunal commited grave error in not
adding any percentage of amount towards
future loss of income. 30% added towardws
future prospects.Total compensation payable to
the appellants-claimants is Rs.30,12,000/-. Rate
of interest fixed at 7.5%.(Para - 9,11,12)

Appeal partly allowed. (E-7)

List of Cases cited:-

1. Rahul Sharma & anr. Vs National Insurance
Co., 2021 in Civil Appeal No.1769 of 2021

2. United India Insurance Co.Ltd. Vs Indiro Devi
& ors., S. L. P. (Civil) Nos.7104-7105 of 2016

3. Rukmani Jethani & ors. Vs Gopal Singh & ors.
, SLP (Civil) No.27802 of 2017

4. National Insurance Company Vs Pranay Sethi,
2014 (4) TAC 637 (SC)

5.
Smt.Sarla
Verma
Vs
Delhi
Transport
Corporation , 2009 (2) TAC 677 (SC)
4 All. Smt. Beena Tyagi & Ors. Vs. Mohamed Azmer & Ors.
515
6. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (S.C.)

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

8. Smt. Sudesna & ors. Vs Hari Singh & anr.,
F.A.F.O. No.23 of 2001

9. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd., F.A.F.O. No.2871 of
2016

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

1. This appeal is preferred by the
claimants-appellants for enhancement of
compensation awarded to appellant by
Motor
Accident
Claims
Tribunal/
Additional District Judge, Court No.5,
Ghaziabad ('Tribunal', for short), vide
order dated 7.1.2016 in M.A.C.P. No.143
of 2013 (Smt.Beena Tyagi and others vs.
Mohd.Azemer
and
others)
whereby
claimants/appellants
was
awarded
Rs.6,87,000/-, with 7% rate of interest as
compensation.

2. Brief facts of the case are that in
the intervening night of 28/29.1.2012, the
marriage ceremony of son of the deceased
Sanjeev Tyagi was going on. At about
00:10 a.m., the deceased came out from
mandap to see-off his friends. When he
was standing beside the road, a Bolero Car
bearing No.UP34-N/7867 came from the
side of Meerut, which was being driven
very rashly and negligently by its driver
dashed the deceased after coming on the
wrong-side in front of the gate of the
mandap. In this accident, the deceased
sustained serious fatal injuries and died on
the way to hospital. It is also averred that
the age of deceased was 43 years and he
was serving in a private company in
Ghaziabad. The driver of the offending
vehicle and its insurance company filed
their respective written statements.

3. Heard Shri Bharat Bhushan Paul,
learned counsel for the appellant and Shri
Komal Mehrotra, learned counsel for the
respondents.

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. Entire factual
scenario is not being narrated as the limited
question in this appeal relates to the
quantum only.

5. With regard to the quantum,
learned
counsel
for
the
appellants
submitted that the deceased was in service
in
S.K.Garg
&
Co.Ltd.,
Ghaziabad,
wherefrom he was getting salary at
Rs.22,000/- per month. It is further
submitted that the deceased was income-tax
payee. Appellants have filed the copies of
the Income-tax Returns of the deceased for
three preceding years of his death, but
learned Tribunal wrongly declined to
believe the Income-tax Returns. It has
further been submitted by learned counsel
for the appellants-claimants that apart from
Income-tax Returns, appellants also filed a
salary-certificate
dated
1.2.2012
duly
issued by S.K.Garg and Co.Ltd., where the
deceased was employed. Learned counsel
also submitted that the deceased was
salaried person, but learned Tribunal has
not awarded any sum for future loss of
income. It is next submitted that learned
Tribunal has awarded Rs.5,000/- for loss of
consortium,
Rs.5,000/-
for
love
and
affection
and
Rs.5,000/-
for
funeral
expenses, which are on the lower-side.
516 INDIAN LAW REPORTS ALLAHABAD SERIES
Regarding rate of interest, counsel for the
appellants submitted that Tribunal has
awarded compensation @ 7% per annum,
which is on lower side. Learned counsel for
the appellants-claimants has heavily relied
on the following judgments:

A. Rahul Sharma and another
vs. National Insurance Company dated
7th May, 2021 in Civil Appeal No.1769 of
2021

B.
United
India
Insurance
Co.Ltd. vs. Indiro Devi and others dated
3rd July, 2018 in Special Leave Petition
(Civil) Nos.7104-7105 of 2016

C. Rukmani Jethani and others vs.
Gopal Singh and others dated 23rd July,
2021 in SLP (Civil) No.27802 of 2017

6. Shri Komal Mehrotra, learned
counsel appearing for Insurance Company,
submitted that income of the deceased was
mentioned as Rs.22,000/- in the petition,
but it could not be proved by the appellants.
There is disparity between the income
alleged by the appellants and income as
shown in documents on record. Therefore,
the Tribunal rightly disbelieved the income
of deceased at Rs.22,000/-. There is no
dispute
regarding
1/3
deduction
for
personal expenses and multiplier of 14.
Hence, there is no illegality or infirmity in
the impugned judgment and it does not call
any interference by this Court.

7. Perusal of record shows that as per
the averment made in the petition, the
deceased was employed in the aforesaid
company at Ghaziabad from where he was
getting salary of Rs.22,000/- per month. To
show this fact, appellants have filed a
salary-certificate issued by the S.K.Garg &
Co.Ltd. Dated 1.2.2013 in which it is
certified that the deceased was employed
with this company on the post of officecoordinator during the F.Y. 2011-12 on a
monthly salary of Rs.22,000/-. Apart from
this salary-certificate, appellants have also
filed Income-tax Returns of the deceased
preceding three years of his death, which
are on the record. These Income-tax
Returns show that income-tax was also
paid by the deceased, therefore, there is no
doubt that he was Income-tax payee.

8. We are not convinced with the
discussion made by the learned Tribunal
regarding the Income-tax Returns. Learned
Tribunal did not appreciate the aforesaid
documentary evidence in right perspective
as it goes to show that the last return,
pertaining to the A.Y. 2010-11, exhibits
gross total income of the deceased as
Rs.3,65,617/- and tax payable to it was
Rs.9,451/-.

9. We are of the considered opinion
that learned Tribunal has committed error
in discarding the documentary evidence
and assessing the income as Rs.6,000/- per
month only. If it would have been the fact,
the deceased should have been completely
exempted from payment of income-tax
while he had paid income-tax nearly
Rs.10,000/- per annum.

10. 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 43 years at the time of accident, 30%
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)]. The deceased
left three dependants behind him, his wife
and two children. Learned Tribunal has
deducted 1/3 of the income towards
personal
expenses
of
the
deceased.
4 All. Smt. Beena Tyagi & Ors. Vs. Mohamed Azmer & Ors.
517
Although, the learned Insurance Company
has submitted that the deduction should
have been 1/2, but we do not agree with
this contention. We hold that the Tribunal
has rightly deducted 1/3 of the income
towards personal expenses of the deceased.
The age of the deceased was 43 years,
therefore, keeping in view the age of the
deceased, multiplier of 14 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)], which is rightly
applied by the Tribunal. As far as nonpecuniary damages are concerned, the
Tribunal has awarded only Rs.5,000/-
towards funeral expenses, which are also
on the lower-side. In the light of Judgment
of Pranay Sethi (supra), claimants shall be
entitled to get Rs.15,000/- for loss of estate
and Rs.15,000/- for funeral expenses. Apart
from it, the wife of the deceased shall also
be entitled to get Rs.40,000/- for loss of
consortium. Hence, the non-pecuniary
damages are calculated at Rs.15,000/- +
Rs.15,000/- + Rs.40,000/- = Rs.70,000/-,
and as per the judgment of the Pranay
Sethi (supra), these would be revised 10%
every three years. Hence, we fix total nonpecuniary damages at Rs.1,00,000/-.

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

i.
Annual
Income

Rs.20,000/
- x 12

Rs.2,40,00
0/-
ii.
Percentage
towards
FutureProspects
(30%)

Rs.72,000/
-

iii.
Total
Income
Rs.2,40,00
0/-
+
Rs.72000/
-
Rs.3,12,00
0/-
iv.
Income
after
deduction
of 1/3

Rs.2,08,00
0/-
v.
Multiplier
applicable
14

vi.
Loss
of
dependenc
y
Rs.2,08,00
0/- x 14
Rs.29,12,0
00/-
vii
.
Nonpecuniary
Damages
Rs.1,00,00
0/-

vii
i.
Total
Compensa
tion
Rs.29,12,0
00/-
+
Rs.1,00,00
0/-
Rs.30,12,0
00/-

12. 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."
518 INDIAN LAW REPORTS ALLAHABAD SERIES
13. 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.

14. 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.

15. 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 A518
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.03.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Crl. Appeal No. 619 of 1986

Nathoo & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Keshav Sahai, Sri Indra Kumar Chaturvedi,
Sri Shaurabh Chaturvedi, Sri Ram Milan Dwivedi

Counsel for the Respondents:
D.G.A.

Criminal Law- Indian Penal Code, 1860 -
Sections 302 & 34- Possibility of false
implication- There was strong rivalry in
the village and the deceased belonged to a
group which had strong rivalry with the
group
to
which
the
accused
party
belonged, it is a case where the evidence
would have to be scrutinised carefully to
exclude not only the possibility of false
implication but also over implication.

Where there are rival factions then the
possibility of false or over implication cannot be
ruled out and therefore it is the duty of the
court to scrutinise the evidence with due care
and caution.

Evidence Law - Indian Evidence Act,
1872- Sections 101 & 102 - The deceased
was a history-sheeter and, importantly, at
the time of spot inspection by the I.O., the
deceased was found having a country
made gun in his hand with an empty 12
bore cartridge in its chamber-No doubt,
we are conscious that no cross version or
self defence has been set up by the
defence but the prosecution has to prove
its case beyond reasonable doubt by