# Smt. Bhoori & Ors v. Ashraf & Anr

- **Citation:** (2022) 1 ILRA 625
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-10
- **Case number:** First Appeal From Order No.3097 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-bhoori-ors-v-ashraf-anr-47484
- **Pages:** 4

## Headnote

A. Civil Law - Motor Vehicle Act, 1988Section
176-Enhancement
of
compensation-deceased was 40 years of
age and he was serving with Northern
Indian Railway Mandal as a gang-manTribunal dismissed the claim petition for
compensation- the deceased was the
sole bread-earner and was earning Rs.
8,850/-per month- the Annual income
would be Rs 96,000/- and By applying the
multiplier
of
15,
the
total
loss
of
dependency is assessed Rs. 15,09000/-
Thus,
the
claimants
entitled
for
compensation of a sum of Rs. 15,09000/-
with
rate
of
interest
@
7.5%
per
annum.(Paras 1 to 15)

The appeal is partly allowed.(E-6)

List of Cases cited:

## Text

1 All. Smt. Bhoori & Ors. Vs. Ashraf & Anr.
625
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)01ILR A625
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2021

BEFORE

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

First Appeal From Order No.3097 of 2007

Smt. Bhoori & Ors. ...Appellants
Versus
Ashraf & Anr. ...Respondents

Counsel for the Appellants:
Sri Abhai Saxena, Sri Krishna Kumar Singh,
Sri Mohd. Asim Zulfiquar

Counsel for the Respondents:
Sri S.C. Srivastava

A. Civil Law - Motor Vehicle Act, 1988Section
176-Enhancement
of
compensation-deceased was 40 years of
age and he was serving with Northern
Indian Railway Mandal as a gang-manTribunal dismissed the claim petition for
compensation- the deceased was the
sole bread-earner and was earning Rs.
8,850/-per month- the Annual income
would be Rs 96,000/- and By applying the
multiplier
of
15,
the
total
loss
of
dependency is assessed Rs. 15,09000/-
Thus,
the
claimants
entitled
for
compensation of a sum of Rs. 15,09000/-
with
rate
of
interest
@
7.5%
per
annum.(Paras 1 to 15)

The appeal is partly allowed.(E-6)

List of Cases cited:

1. Anita Sharma & ors. Vs The New India Assr.
Co. Ltd. & anr., (2021) 1 SCC 171

2. Sunita & ors Vs R.S.R.T.C. & Anr. (2019) 1
T.A.C. SC

3. Mangla Ram Vs Oriental Ins. Co. Ltd. & ors
(2018) 4 Supreme 525

4. Bithika Mazumdar Vs Sagar Pal (2017) 2 SCC
748

5. Sarla Verma & ors. Vs D.T.C. & anr. (2009)
Lawsuit SC 613

6. National Ins. Com. Ltd. Vs Pranay Sethi &
ors. (2017) LawSuit SC 1093

7. National Ins. Co. Ltd. Vs Mannat Johal & ors.
(2019) 2 T.A.C. 705 SC

8. Smt. Hansagori P. Ladhani Vs The Oriental
Ins. Co. Ltd.(2007) 2 GLH 291

9. Smt. Sudesna & ors. Vs Hari Singh & anr.
FAFO No . 23 of 2001

10. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Ins. Co. Ltd, FAFO No. 2871 of 2016

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)
&
Hon'ble Ajai Tyagi, J.)
626 INDIAN LAW REPORTS ALLAHABAD SERIES

1. By way of this appeal, the
claimants-appellants who are legal heirs of
the deceased have challenged the judgment
and order dated 15.09.2007 passed by
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.1, Moradabad (hereinafter referred to as
''Tribunal') in M.A.C.P. No. 156 of 2007.
The
appellants'
claim
petition
for
compensation on account of the death of
the sole bread earner came to be dismissed
by the Tribunal.

2. The brief facts as culled out from the
record, which is placed before this Court are
that at 07:00 AM, when deceased after
completing his duty on 13.01.2006 was plying
his cycle at that point of time at a place known
as turning Bheetkheda, a truck bearing No. HR
55/6244 came on the wrong side rashly and
negligently and dashed the cyclist. Shyam Laldeceased suffers serious injuries. The deceased
before succumbed to injuries, taken up for
medical aid as he had suffered several injuries
but during his treatment he succumbed to the
injuries. The deceased was 40 years of age and
he was serving with Northern Indian Railway
Mandal as a gang-man and was posted at
Rampur, his basic salary was Rs.8,850/- per
month.

3. On the claim petition being filed, the
respondent no.1 appeared and did not accept
any of the averments made in the claim
petition and contended that the vehicle if it is
held to be liable, the vehicle was insured with
respondent
no.2
from
10.11.2005
to
09.11.2006 and the driver was having a valid
licence to ply the same vehicle. However,
The New India Assurance Co. Ltd. has
replied to this denial. The Tribunal framed
three issues and held that it was not proved
that the driver of the truck was rash and
negligent while driving the truck.

4. The Tribunal disbelieved the
presence of P.W.-1 and P.W.-2 and held
that just because the charge sheet it does
not conclude that the accident had occurred
with the same truck and thereafter, decided
Issued nos.2 and 3 also against the
appellants.

5. Heard learned counsel for the
parties and perused the record.

6. The evidence on record comprises
of oral testimony of witnesses and the
documentary evidence in support of the
said accidental injuries. The post-mortem
report shows that the deceased died due to
the injuries which he had sustained in the
accident and hence, it is a homicidal death,
which is proved. As far as involvement of
the truck is concerned. The respondent no.1
or the driver has not stepped into the
witness box. The only defence has been
taken to the written statements and the
evidence on record is very clear. P.W.-2
and P.W.-3 have stated in their oral
testimony and in the cross-examination, the
doubt created by the Tribunal that they
were not eye witnesses and their evidence
is not worth believing is contrary to the
judgment of the Apex Court in the case of
Anita Sharma and Others Vs. The New
India Assurance Co. Ltd. and Another,
2021 (1) SCC 171, wherein the approach of
the High Court as as to appreciate turns of
even is in a very casual manner is
deprecated. In our case, the judgment of
Sunita and Others Vs. Rajasthan Sate
Road Transport Corporation and Another,
2019 (1) T.A.C. (S.C.) will also be
applicable to the facts of this case. The
judgment of the Supreme Court in the case
of Mangla Ram Vs. Oriental Insurance
Co. Ltd. and Others, 2018 (4) Supreme
525, cited by the appellant goes to show
1 All. Smt. Bhoori & Ors. Vs. Ashraf & Anr.
627
that pleadings of parties will have to be
scrutinized in a practical manner.

7. The learned Tribunal has failed to
consider this aspect while dismissing the
claim petition. Hence, this appeal requires
to be allowed and the impugned judgment
and award of the Tribunal dismissing the
claim petition being against the mandate of
law and facts requires to be quashed.

8. The counsel for the respondent
contended that no amount can be granted
and requested to reject the appeal and or
remand the same to the Tribunal. The said
contention is rejected in view of the
decision in Bithika Mazumdar Vs. Sagar
Pal, (2017) 2 SCC 748, wherein it has been
held that compensation claim petition
which remained undecided for nine years
and the record was before the Apex Court,
the Apex Court decided the quantum.

9. Similarly, this Court feels that as
sixteen years have elapsed from filing of
claim appeal and that the record is before
this Court, instead of directing the parties
to go before the Tribunal only for the
assessment of compensation which could
cause further delay and will also cause
further loss to the appellants, it would be
more justifiable if this Court decide the
quantum as this Court has to decide only
quantum under Section 140 of the Act,
1988 which would be the final amount
payable.

10. Keeping in view the above fact,
the income of the deceased may be fixed as
Rs.8,000/- per month. Hence, the annual
income of deceased is fixed as Rs.96,000/-
per annum. The age of the deceased was 40
years, hence in the light of the judgment of
the Apex Court in Sarla Verma and Others
Vs. Delhi Transport Corporation and
Another, 2009 LawSuit (SC) 613 and
National Insurance Co. Ltd. Vs. Pranay
Sethi and Others, 2017 LawSuit (SC)
1093, due to being self employed and
having the age of 40 years, 30% shall be
added towards future prospects in the
income of the deceased.

11. As far as the dependency is
concerned, there are five dependents.
Keeping in view the number of dependents,
1⁄4th shall be deducted for personal
expenses. The multiplier of 15 has to be
applied. Under the non pecuniary head,
claimants-appellants shall be entitled to get
Rs.15,000/-
for
loss
of
estate
and
Rs.15,000/- for funeral expenses. Apart
from it, wife of the deceased shall also be
entitled to get Rs.40,000/- for loss of
consortium. In this way, claimants shall get
Rs.70,000/-
under
the
head
of non
pecuniary damages with increase of 10%
for every three years as per the judgment of
Apex Court in Pranay Sethi (Supra).

12. The total compensation payable to
the appellants are computed herein below:

(i) Annual income Rs.8,000/- per
month = 96,000/- per annum.

(ii) Percentage towards future
prospects : 30%. Rs.28,800/-

(iii) Total income : Rs.96,000 +
28,800 = Rs.1,24,800/-

(iv) Income after deduction of
1⁄4th : Rs.93,600/-

(v) Multiplier applicable : 15

(vi)
Loss
of
dependency
:
Rs.93,600 X 15 = 14,04,000/-

(vii)
Amount
under
non
pecuniary head: Rs.70,000/- +35,000/- =
1,05,000/-

(viii)
Total
compensation
:
628 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.14,04,000/-
+
1,05,000/-
=
Rs.
15,09,000/-

13. 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."

14. In view of the above, the appeal is
partly allowed. Judgment and award
passed by the Tribunal is set aside. The
respondent-The New India Assurance Co.
Ltd. 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.

15 . 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 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)01ILR A628
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2021

BEFORE

THE HON'BLE VIVEK VARMA, J.

First Appeal From Order No. 3149 of 2017

United India Insurance Company Ltd.
 ...Appellant
Versus
Smt. Sanwala Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Nagendra Kumar Srivastava

Counsel for the Respondents:
Sri Ramesh Chandra Pathak, Sri Neeraj
Chandra Srivastava

A. Civil Law - Motor Vehicle Act, 1988Section
176-Enhancement
of
compensation-deceased was 50 years of