# Smt. Bitti & Ors v. Abdul Farookh @ Kallu & Anr

- **Citation:** (2019) 2 ILRA 1143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-06
- **Case number:** FAFO No. 3189 of 2003
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-bitti-ors-v-abdul-farookh-kallu-anr-44570
- **Pages:** 9

## Headnote

Sri Nripendra Misra

A.
Motor
Accident
Claim
-Composite
Negligence-Apportionment of compensationApportionment of compensation between
two tort feasors vis a vis the claimant is
not permissible - Claimant is entitled to
sue both or any one of the joint tort
feasors
and
to
recover
the
entire
compensation - as liability of joint tort
feasors is joint and several. (Para 13)
B. Motor Accident Claim - Extent of
composite negligence - Not appropriate
for the court/tribunal to determine the
extent of composite negligence of the
drivers of two vehicles - Joint tort feasor,
in case he so desires, to sue the other
joint
tort
feasor
in
independent
proceedings after passing of the decree
or award. (Para 13)
C. Motor Accident Claim - Negligence -
Negligent act must contribute to the
accident having taken place - Insurance
company failed to prove that accident
occurred due to carrying of person as
pillion rider, cannot be benefited. (Para 11)
Appeal Partly allowed (E-5)
List of cases cited: -
1.Pawan Kumar & anr. Vs M/S Harkishan Dass
Mohan Lal & ors. (SC) decided on 29 January, 2014
2.Archit Saini & anr. Vs Oriental Insurance
Company Ltd. AIR 2018 SC 1143
3.Khenyei Vs New India Assurance Company
Ltd. & ors. 2015 Law Suit (SC) 469
4.National Insurance Co. Ltd. Vs Challa
Bharathamma & ors. reported in [2004 (8)
SCC 517]
5.Bithika Mazumdar Vs Sagar Pal (2017) 2 SCC 748

## Text

2 All. Smt. Bitti & Ors. Vs Abdul Farookh @ Kallu & Anr.
1143
(2019)10ILR A 1143

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE

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

FAFO No. 3189 of 2003
&
FAFO No. 3188 of 2003

Smt. Bitti & Ors. ...Appellants
Versus
Abdul Farookh @ Kallu & Anr.
 ...Respondents

Counsel for the Appellants:
Sri R.K. Porwal

Counsel for the Respondents:
Sri Nripendra Misra

A.
Motor
Accident
Claim
-Composite
Negligence-Apportionment of compensationApportionment of compensation between
two tort feasors vis a vis the claimant is
not permissible - Claimant is entitled to
sue both or any one of the joint tort
feasors
and
to
recover
the
entire
compensation - as liability of joint tort
feasors is joint and several. (Para 13)
B. Motor Accident Claim - Extent of
composite negligence - Not appropriate
for the court/tribunal to determine the
extent of composite negligence of the
drivers of two vehicles - Joint tort feasor,
in case he so desires, to sue the other
joint
tort
feasor
in
independent
proceedings after passing of the decree
or award. (Para 13)
C. Motor Accident Claim - Negligence -
Negligent act must contribute to the
accident having taken place - Insurance
company failed to prove that accident
occurred due to carrying of person as
pillion rider, cannot be benefited. (Para 11)
Appeal Partly allowed (E-5)
List of cases cited: -
1.Pawan Kumar & anr. Vs M/S Harkishan Dass
Mohan Lal & ors. (SC) decided on 29 January, 2014
2.Archit Saini & anr. Vs Oriental Insurance
Company Ltd. AIR 2018 SC 1143
3.Khenyei Vs New India Assurance Company
Ltd. & ors. 2015 Law Suit (SC) 469
4.National Insurance Co. Ltd. Vs Challa
Bharathamma & ors. reported in [2004 (8)
SCC 517]
5.Bithika Mazumdar Vs Sagar Pal (2017) 2 SCC 748
6. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. F.A.F.O No. 1818 of
2012 decided on 19.7.2016

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

1. Heard Sri R.K. Porwal, learned
counsel for the appellants for the appeals
and Sri Nripendra Misra, learned counsel
for the respondents in both the appeals.

2. Both these appeals, at the behest
of the claimants, challenges the judgment
and award dated 30.09.2003 passed by
Motor Accident Claims Tribunal/Special
Judge (E.C.) Act, Etawah (hereinafter
referred to as 'Tribunal') in M.A.C.P. No.
45 of 2000 and M.A.C.P. No.44 of 2000.

3. Brief facts of the litigation are
that on 28.11.1999 at about 05 p.m. on
Mathura Agra road near village Mahuaa
the deceased was plying his scooter
bearing No. D.L. 8 C 3277 and Prem
Singh and his minor son were going at
that time a Tata Sumo Bearing No. M.P. 7
H 4155 coming from Agra driven rashly
and negligently drag with the scooter.
Jagmohan and his son met with serious
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
injuries and during the treatment they
summoned to the death. F.I.R. was lodged
charge sheet was led against the driver of
Tata Sumo. The owner of the driver of
Tara sumo did not appear and qua them
the litigation proceeded ex-parte. The
insurance company took its defence
contending that on the scooter there were
three persons plying the scooter. The
vehicle though was insured with them
there was breach of policy condition.

4. The Tribunal framed four issues
in both the matters and rejected both the
claim petitions holding the driver of the
scooter
solely
responsible
for
the
accident. It is this finding of fact which is
assailed by the appellants.

5. It would be necessary for us to
decide the question of negligence as for
the pillion rider it was a case of composite
negligence and that it is submitted that the
scooter driver was driving the scooter on
its correct side as he had to cross the
divider and as he had to go in the same
lane as the side which was his correct side
the site map shows that it was Tata Sumo
which came on its extreme right and the
accident was so grave that the driver and
the pillion driver met with serious injuries
and therefore it cannot be said that the
driver of the scooter was negligent. It is
further submitted that the driver of the
sumo did not step into the witness box.

6. The principle of negligence
enunciated here in below will have to be
looked into as the Insurance company in
memo of appeal has come with the stand
that there was a head on collision and it
was a case of contributory negligence
and, therefore, there is error apparent on
the face of record and erred in not framing
any issue on that count.

7. The concept of contributory
negligence has been time and again
evolved, decided and discussed by the
courts.

8. The term negligence means
failure to exercise care towards others
which a reasonable and prudent person
would in a circumstance or taking action
which such a reasonable person would
not. Negligence can be both intentional or
accidental which is normally accidental.
More particularly, it connotes reckless
driving and the injured must always prove
that the either side is negligent. If the
injury rather death is caused by something
owned or controlled by the negligent
party then he is directly liable otherwise
the principle of "res ipsa loquitur"
meaning thereby "the things speak for
itself" would apply.

9. The term contributory negligence
has been discussed time and again a
person who either contributes or is author
of the accident would be liable for his
contribution to the accident having taken
place. The Apex Court in Pawan Kumar
& Anr vs M/S Harkishan Dass Mohan
Lal & Ors decided on 29 January, 2014
has held as follows:

7. Where the plaintiff/claimant
himself is found to be a party to the
negligence the question of joint and
several liability cannot arise and the
plaintiff's claim to the extent of his own
negligence, as may be quantified, will
have to be severed. In such a situation the
plaintiff can only be held entitled to such
part of damages/compensation that is not
attributable to his own negligence. The
above principle has been explained in
T.O. Anthony (supra) followed in K.
Hemlatha & Ors. (supra). Paras 6 and 7
2 All. Smt. Bitti & Ors. Vs Abdul Farookh @ Kallu & Anr.
1145
of T.O. Anthony (supra) which are
relevant may be extracted hereinbelow:

"6.
"Composite
negligence"
refers to the negligence on the part of two
or more persons. Where a person is
injured as a result of negligence on the
part of two or more wrongdoers, it is said
that the person was injured on account of
the
composite
negligence
of
those
wrongdoers. In such a case, each
wrongdoer is jointly and severally liable
to the injured for payment of the entire
damages and the injured person has the
choice of proceeding against all or any of
them. In such a case, the injured need not
establish the extent of responsibility of
each wrongdoer separately, nor is it
necessary for the court to determine the
extent of liability of each wrongdoer
separately. On the other hand where a
person suffers injury, partly due to the
negligence on the part of another person
or persons, and partly as a result of his
own negligence, then the negligence on
the part of the injured which contributed
to the accident is referred to as his
contributory
negligence.
Where
the
injured is guilty of some negligence, his
claim for damages is not defeated merely
by reason of the negligence on his part
but the damages recoverable by him in
respect of the injuries stand reduced in
proportion to his contributory negligence.

7. Therefore, when two vehicles
are involved in an accident, and one of
the drivers claims compensation from the
other driver alleging negligence, and the
other driver denies negligence or claims
that the injured claimant himself was
negligent, then it becomes necessary to
consider whether the injured claimant
was negligent and if so, whether he was
solely or partly responsible for the
accident
and
the
extent
of
his
responsibility, that is, his contributory
negligence. Therefore where the injured is
himself partly liable, the principle of
"composite negligence" will not apply nor
can there be an automatic inference that
the negligence was 50:50 as has been
assumed in this case. The Tribunal ought
to
have
examined
the
extent
of
contributory negligence of the appellant
and thereby avoided confusion between
composite negligence and contributory
negligence. The High Court has failed to
correct the said error."

10. The Division Bench of this
Court in F.A.F.O No. 1818 of 2012
(Bajaj Allianz General Insurance Co.
Ltd. Vs. Smt. Renu Singh And Others)
decided on 19.7.2016 which has held as
under:

"17. It would be seen that
burden
of
proof
for
contributory
negligence on the part of deceased has to
be discharged by the opponents. It is the
duty of driver of the offending vehicle to
explain the accident. It is well settled law
that at intersection where two roads cross
each other, it is the duty of a fast moving
vehicle to slow down and if driver did not
slow down at intersection, but continued
to proceed at a high speed without caring
to notice that another vehicle was
crossing, then the conduct of driver
necessarily leads to conclusion that
vehicle was being driven by him rashly as
well as negligently.

18. 10th Schedule appended to
Motor Vehicle Act contain statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation
clearly directs that the driver of every
motor vehicle to slow down vehicle at
every intersection or junction of roads or
at a turning of the road. It is also
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
provided that driver of the vehicle should
not enter intersection or junction of roads
unless he makes sure that he would not
thereby endanger any other person.
Merely, because driver of the Truck was
driving vehicle on the left side of road
would
not
absolve
him
from
his
responsibility to slow down vehicle as he
approaches
intersection
of
roads,
particularly when he could have easily
seen, that the car over which deceased
was riding, was approaching intersection.

19. In view of the fast and
constantly increasing volume of traffic,
motor vehicles upon roads may be
regarded to some extent as coming within
the principle of liability defined in
Rylands V/s. Fletcher, (1868) 3 HL (LR)
330. From the point of view of pedestrian,
the roads of this country have been
rendered by the use of motor vehicles,
highly dangerous. 'Hit and run' cases
where drivers of motor vehicles who have
caused accidents, are unknown. In fact
such cases are increasing in number.
Where a pedestrian without negligence on
his part is injured or killed by a motorist,
whether negligently or not, he or his legal
representatives, as the case may be,
should be entitled to recover damages if
principle of social justice should have any
meaning at all.

20. These provisions (sec.110A
and sec.110B of Motor Act, 1988) are not
merely
procedural
provisions.
They
substantively affect the rights of the
parties. The right of action created by
Fatal Accidents Act, 1855 was 'new in its
species, new in its quality, new in its
principles. In every way it was new. The
right given to legal representatives under
Act, 1988 to file an application for
compensation for death due to a motor
vehicle accident is an enlarged one. This
right cannot be hedged in by limitations
of an action under Fatal Accidents Act,
1855. New situations and new dangers
require new strategies and new remedies.

21. In the light of the above
discussion, we are of the view that even if
courts may not by interpretation displace
the
principles
of
law
which
are
considered to be well settled and,
therefore, court cannot dispense with
proof of negligence altogether in all cases
of motor vehicle accidents, it is possible
to develop the law further on the
following lines; when a motor vehicle is
being driven with reasonable care, it
would ordinarily not meet with an
accident and, therefore, rule of res-ipsa
loquitor as a rule of evidence may be
invoked in motor accident cases with
greater frequency than in ordinary civil
suits (per three-Judge Bench in Jacob
Mathew V/s. State of Punjab, 2005 0
ACJ(SC) 1840).

22. By the above process, the
burden of proof may ordinarily be cast on the
defendants in a motor accident claim petition
to prove that motor vehicle was being driven
with reasonable care or that there is equal
negligence on the part the other side."

11. The insurance company has
failed to prove that accident occurred due
to carrying of person as pillion rider. In
absence of such a finding, the insurance
company having not proved factum of
negligence on the part of the scooterist,
cannot be benefited. The negligent act
must contribute to the accident having
taken place. The Apex Court recently has
considered the principles of negligence in
case of Archit Saini and Another Vs.
Oriental Insurance Company Limited,
AIR 2018 SC 1143.

12. The Apex Court in Khenyei Vs.
New
India
Assurance
Company
2 All. Smt. Bitti & Ors. Vs Abdul Farookh @ Kallu & Anr.
1147
Limited & Others, 2015 Law Suit (SC)
469 has held as under:

"4. It is a case of composite
negligence where injuries have been
caused to the claimants by combined
wrongful act of joint tort feasors. In a
case of accident caused by negligence of
joint tort feasors, all the persons who aid
or counsel or direct or join in committal
of a wrongful act, are liable. In such case,
the liability is always joint and several.
The extent of negligence of joint tort
feasors in such a case is immaterial for
satisfaction
of
the
claim
of
the
plaintiff/claimant
and
need
not
be
determined by the by the court. However,
in case all the joint tort feasors are before
the court, it may determine the extent of
their liability for the purpose of adjusting
inter-se
equities
between
them
at
appropriate stage. The liability of each
and every joint tort feasor vis a vis to
plaintiff/claimant cannot be bifurcated as
it is joint and several liability. In the case
of composite negligence, apportionment
of compensation between tort feasors for
making payment to the plaintiff is not
permissible as the plaintiff/claimant has
the right to recover the entire amount
from the easiest targets/solvent defendant.

14.
There
is
a
difference
between
contributory
and
composite
negligence. In the case of contributory
negligence, a person who has himself
contributed to the extent cannot claim
compensation for the injuries sustained by
him in the accident to the extent of his
own negligence;whereas in the case of
composite negligence, a person who has
suffered has not contributed to the
accident but the outcome of combination
of negligence of two or more other
persons. This Court in T.O. Anthony v.
Karvarnan & Ors. [2008 (3) SCC 748]
has held that in case of contributory
negligence, injured need not establish the
extent of responsibility of each wrong
doer separately, nor is it necessary for the
court to determine the extent of liability of
each wrong doer separately. It is only in
the case of contributory negligence that
the injured himself has contributed by his
negligence in the accident. Extent of his
negligence is required to be determined
as damages recoverable by him in respect
of the injuries have to be reduced in
proportion to his contributory negligence.
The
relevant
portion
is
extracted
hereunder :

"6. 'Composite negligence' refers
to the negligence on the part of two or more
persons. Where a person is injured as a
result of negligence on the part of two or
more wrong doers, it is said that the person
was injured on account of the composite
negligence of those wrong-doers. In such a
case, each wrong doer, is jointly and
severally liable to the injured for payment
of the entire damages and the injured
person has the choice of proceeding against
all or any of them. In such a case, the
injured need not establish the extent of
responsibility
of
each
wrong-doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong-doer separately. On the other hand
where a person suffers injury, partly due to
the negligence on the part of another person
or persons, and partly as a result of his own
negligence, then the negligence of the part
of the injured which contributed to the
accident is referred to as his contributory
negligence. Where the injured is guilty of
some negligence, his claim for damages is
not defeated merely by reason of the
negligence on his part but the damages
recoverable by him in respect of the
injuries stands reduced in proportion to
his contributory negligence.
1148 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Therefore, when two vehicles
are involved in an accident, and one of
the drivers claims compensation from the
other driver alleging negligence, and the
other driver denies negligence or claims
that the injured claimant himself was
negligent, then it becomes necessary to
consider whether the injured claimant
was negligent and if so, whether he was
solely or partly responsible for the
accident
and
the
extent
of
his
responsibility, that is his contributory
negligence. Therefore where the injured is
himself partly liable, the principle of
'composite negligence' will not apply nor
can there be an automatic inference that
the negligence was 50:50 as has been
assumed in this case. The Tribunal ought
to
have
examined
the
extent
of
contributory negligence of the appellant
and thereby avoided confusion between
composite negligence and contributory
negligence. The High Court has failed to
correct the said error."

13. The Apex Court in National
Insurance
Co.
Ltd.
Vs
Challa
Bharathamma & Ors reported in [2004
(8) SCC 517] has dealt with the breach of
policy conditions by the owner when the
insurer
was
asked
to
pay
the
compensation fixed by the tribunal and
the right to recover the same was given to
the insurer in the executing court
concerned if the dispute between the
insurer and the owner was the subjectmatter of determination for the tribunal
and the issue has been decided in favour
of the insured. The same analogy can be
applied to the instant cases as the liability
of the joint tort feasor is joint and several.
In the instant case, there is determination
of
inter
se
liability
of
composite
negligence to the extent of negligence of
2/3rd and 1/3rd of respective drivers.
Thus, the vehicle - trailor-truck which
was not insured with the insurer, was
negligent to the extent of 2/3rd. It would
be open to the insurer being insurer of the
bus after making payment to claimant to
recover from the owner of the trailortruck the amount to the aforesaid extent in
the execution proceedings. Had there been
no determination of the inter se liability
for want of evidence or other joint tort
feasor had not been impleaded, it was not
open to settle such a dispute and to
recover
the
amount
in
execution
proceedings but the remedy would be to
file
another
suit
or
appropriate
proceedings in accordance with law.

What
emerges
from
the
aforesaid discussion is as follows :

(i) In the case of composite
negligence, plaintiff/claimant is entitled to
sue both or any one of the joint tort
feasors
and
to
recover
the
entire
compensation as liability of joint tort
feasors is joint and several.

(ii) In the case of composite
negligence,
apportionment
of
compensation between two tort feasors vis
a
vis
the
plaintiff/claimant
is
not
permissible. He can recover at his option
whole damages from any of them.

(iii) In case all the joint tort
feasors
have
been
impleaded
and
evidence is sufficient, it is open to the
court/tribunal to determine inter se extent
of composite negligence of the drivers.
However, determination of the extent of
negligence between the joint tort feasors
is only for the purpose of their inter se
liability so that one may recover the sum
from the other after making whole of
payment to the plaintiff/claimant to the
extent it has satisfied the liability of the
other. In case both of them have been
impleaded and the apportionment/ extent
2 All. Smt. Bitti & Ors. Vs Abdul Farookh @ Kallu & Anr.
1149
of their negligence has been determined
by the court/tribunal, in main case one
joint tort feasor can recover the amount
from
the
other
in
the
execution
proceedings.

(iv) It would not be appropriate
for the court/tribunal to determine the
extent of composite negligence of the
drivers of two vehicles in the absence of
impleadment of other joint tort feasors. In
such a case, impleaded joint tort feasor
should be left, in case he so desires, to sue
the other joint tort feasor in independent
proceedings after passing of the decree or
award."

emphasis added

14. While going through the record
it is clear that the Tribunal has materially
erred in coming to the conclusion that the
driver of the scooter was driving the
scooter in rash and negligent manner. The
reasoning given are not germane and are
not proved by the driver of the Tata Sumo
while seeing the site plan it is clear that
the correct side of the scooter was the one
where he was driving, though the road is
divided by divider the side which was the
correct side was not open to public and
the scooter driver and other vehicles had
to ply the vehicles on the side where the
deceased was driving the said scooter. In
this case the driver of the Tata Sumo has
been charge sheeted. He has not stepped
into the witness box and the impact shows
that the scooterist was 10 per cent
negligent. The Tata Sumo was trying to
overtake another vehicle which is clear
from evidence. The Sumo tried to
overtake came on the right side which
was not meant for it and that is how the
accident occurred. There is no rebuttal
evidence and therefore also this court
while relying on the site plan and the
judgment in Archit Saini and Another
(supra) holds that the driver of the Tata
Sumo who caused the fatal accident was
the main author of the accident having
taken place whereby two persons died
which shows the impact with which Tata
Sumo must have dashed the scooter hence
the driver of Tata Sumo is held to be 90
percent negligent.

15. In view of the judgment in the
case of F.A.F.O. No.534 of 1995
(Brahma Dutta Sharma Vs. Umesh
Sharma
and
Others)
decided
on
30.01.2019 wherein para 14 , it has been
held as follows:

"14. The finding of the Tribunal
are perverse. The tempo being a bigger
vehicle as no legal evidence has been
produced to show that the claimant had
contributed to the accident. Tribunal has
not given proper reasons for holding him
negligent
whether
he
had
taken
permission to come Jhansi or not is of no
relevance and it has not been brought on
record that because he has left place of
service, he was negligent. The conclusive
proof negligence is of against the tempo
driver, therefore, the tribunal committed
manifest error in holding the appellant
first contributory negligent and coupling
with no proper reply for leaving the head
quarter. There is no evidence about the
motorcycle being driven negligently by
the appellant at the time of accident. The
Respondent did not produce any such
evidence and there is a charge sheet
against the tempo driver which primafacie pointed towards the negligence of
the appellant. Thus the finding of
contributory
negligence
cannot
be
sustained. I am supported in my view in
Mangla Ram Versus Oriental Insurance
Company Limited, (2018) 5 SCC 656. "
1150 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Holding that the claim petitions
were wrongly dismissed. The question is
should this court remand the matter to the
tribunal or decide the same here as the
record is before this court while going
though the judgment it is clear that the
tribunal had calculated what would be the
compensation
available
in
M.A.C.P.
No.44 of 2000 and 45 of 2000 but as the
petitions being rejected no amount of
compensation was ordered to be paid by
any of the respondents holding that the
claimants could file claim petitions for
recovery against the owner and driver of
the scooter though for the pillion rider it
was a case of composite negligence.

17. In view of 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.

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 reassessment of compensation which could
cause further delay and will also cause
further loss to the destitute family. This
court in Brahma Dutta Sharma Vs.
Umesh Sharma and Others (supra) has
taken similar view and therefore I without
remanding the matter as the principles for
determination of compensation are well
settled venture to recalculate the amount
of compensation to be paid to the
appellants in both these appeals decide the
compensation here."

18. It is submitted by learned
counsel for the appellant that the Tribunal
has though wanted to reject the claim
petition has considered and decided on
quantum the income in Claim Petition
No.44 of 2000 and 45 of 2000 of the
deceased to be Rs. 2,000/- per month and
has held that sum of Rs.4,08,000/- for loss
of income in case of Bitti and has added
another Rs.5,000/- in case of deceased
Prem Singh. Law as it held that deceased
driver of scooter negligent rejected both
the claim petitions.

19. In case of Jagmohan his income
has been considered to Rs.3,000/- as the
deceased had a shop of preparing sweet in
Delhi and has deducted 1/3 and granted a
sum of Rs.4,32,000/- as the deceased was
25 years of age.

20. The amount is being re-evaluated
in both the matters. The accident occurred in
the year 2000. The income of the deceased in
both the matters can be safely considered to
be Rs.3,000/- as considered by the Tribunal
however a sum of Rs.12,000/- will have to
be added. Hence, the amount would be
Rs.4,200/- per month. 1/3 will have to be
deducted hence the amount available to the
family would be Rs.3,000/- per month
meaning thereby Rs.36,000 x 17 +40,000=
6,52,000/- in case of F.A.F.O No. 3189 of
2003 and in F.A.F.O. No. 3188 of 2003
Rs.36,000X18=40,000=6,88,000/-.

21. However, the rate of interest
which is 6% would 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
2 All. Commissioner of Income Tax Exemption U.P. State Cons. & Infra Vs M/s Reham
 Foundation Kandhari Lane Lal Bagh Lucknow

1151
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."

22. 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 calculated and deposited with
interest at the rate of 7.5% from the date
of filing of the claim petition till the
amount is deposited. The amount be
deposited within a period of 12 weeks
from today.

23. As far as the claimants of F.A.F,O
No.3189 of 2003 who are the heirs of Prem
Singh and who had preferred M.A.C.P. No.
45 of 2000 can recover the amount from any
of the tort-fessor as Prem Singh was a pillion
rider and the insurance company may recover
10 per cent from the insurance company and
owner of the scooter. F.A.F. No. 3188 of 2003
the owner and the insurance company of the
Tatasumo to deposit 90 per cent of the
awarded amount as driver Jagmohan is held to
be 10 per cent negligent and that amount will
have to be deducted.

24. The record and proceedings be
send back to the Tribunal forthwith.
----------

(2019)10ILR A 1151

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.09.2019

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE MANISH MATHUR, J.

Income Tax Appeal No. 37 of 2017

Commissioner of Income Tax Exemption
U.P. State Cons. & Infra. ...Appellant
Versus
M/s Reham Foundation Kandhari Lane
Lal Bagh Lucknow ...Respondent

Counsel for the Appellant:
Sri Manish Mishra

Counsel for the Respondent:
Sri Sidharth Dhaon

A. Income Tax Act, 1961- Sections 11,
12, 12 AA, 254, 260 (A) - Tribunal can
pass order directing Commissioner to
grant registration, if satisfied with the
material already on record - To decide
contradictory views of regarding the
issue - whether Income Tax Appellate
Tribunal while hearing Appeal in a
matter where registration U/S 12 AA has
been denied by Commissioner, can itself
pass an order directing Commissioner to
grant registration or should leave the
matter to be considered afresh by
Commissioner, giving rise to further
litigation - matter has been referred to
Full Bench- Answering the reference, the
High Court held-An appeal before the
Tribunal is a continuation of original
proceedings-The words "as it thinks fit"
used in relation to the power of the
Income Tax Appellate Tribunal in Section
254(1) are of widest amplitude and
confer very wide jurisdiction on the
appellate authority- Where the words of
Statute are clear without any ambiguity,
there is no scope for the courts to