# Smt. Chandrakala & Ors v. Imtiyaz & Ors

- **Citation:** (2021) 9 ILRA 370
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-29
- **Case number:** FAFO Defective No. 355 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-chandrakala-ors-v-imtiyaz-ors-47582
- **Pages:** 9

## Headnote

Sri Pradeep Kumar Rai, Sri Brijesh Chandra
Naik

Motor
accident
claim
-compensation
challenged-deceased
was
not
a
permanent
employee-Tribunal
did
not
grant any amount under the head of
future loss of income-income proved to be
Rs.8000/- per month but thentoo Tribunal
considered
it
4500/-
per
montherroneous-income is fixed as Rs 8000/-
per month and Rs 1000 is deductible as
other allowance-job permanent of privatefuture aspect has to be added-order
modified.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

370 INDIAN LAW REPORTS ALLAHABAD SERIES
brought in by way of amendment, the
claimant
would
be
entitled
to
Rs
8,00,000. If, however, the amount of
original
compensation
with
rate
of
interest were to exceed the sum of Rs
8,00,000 the compensation would be in
terms of figure in excess of Rs 8,00,000.
The idea is to afford the benefit of the
amendment, to the extent possible. Thus,
according to us, the matter is crystal
clear. The issue does not need any further
clarification or elaboration."

45. In view of aforesaid judgment,
the submission of learned counsel for
respondent does not have any merit.

46. In terms of aforesaid, judgment
and award dated 16.12.2002 passed by
Railway Claims Tribunal, Lucknow in
Claim Case No.0A0100204 (Smt. Manju
Yadav & others Vs. Union of India) is set
aside. Consequently, the appeal succeeds
and is allowed. Parties shall bear their
own costs. Office is directed to remit the
lower court record to the tribunal.
----------
(2021)09ILR A370
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2021 &
03.09.2021

BEFORE

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

FAFO Defective No. 355 of 2018

Smt. Chandrakala & Ors. ...Appellants
Versus
Imtiyaz & Ors. ...Respondents

Counsel for the Appellants:
Sri Anubhav Sinha
Counsel for the Respondents:
Sri Pradeep Kumar Rai, Sri Brijesh Chandra
Naik

Motor
accident
claim
-compensation
challenged-deceased
was
not
a
permanent
employee-Tribunal
did
not
grant any amount under the head of
future loss of income-income proved to be
Rs.8000/- per month but thentoo Tribunal
considered
it
4500/-
per
montherroneous-income is fixed as Rs 8000/-
per month and Rs 1000 is deductible as
other allowance-job permanent of privatefuture aspect has to be added-order
modified.

Appeal partly allowed. (E-9)

List of Cases cited:

1. National Insurance Co. Ltd. Vs Smt. Vidyawati
Devi & 2 ors. decided on 27.07.2016 in First
Appeal From Order No. 2389 of 2016

2. First Appeal From Order No. 1818 of 2012 (
Bajaj Allianz General Insurance Co.Ltd. Vs Smt.
Renu Singh & ors.)

3. Archit Saini Vs Oriental Insurance Co. Ltd. &
ors. 2018 0 AIR (SC) 1143

4. Rajendra Singh Vs National Insurance Co.
(2020) 7 SCC 256

5.United India Insurance Co. Ltd. Vs Sarita Rani
Dhaka & ors. ACJ 895,

6. Ranu Bala Paul Vs Bani Chakraborty & ors.
1999 (1) TAC 151,

7.N.K.Vs Brothers (Pvt.) Ltd. Vs M. Karumai
Ammal & ors. AIR 1980 SC 1354,

8. Usha Rajkhowa & ors. Vs Paramount
Industries & anr. 2 (2009) ACC 281 (SC)

9. St. of Har. & ors. Vs Jasveer Kaur & ors.,
2003 (3) TAC 569 (SC)

10. Smt. Sarla Verma & ors. Vs Delhi Transport
Corporation & ors. 2009 ACJ 1298
9 All. Smt. Chandrakala & Ors. Vs. Imtiyaz & Ors.
371
11. Reshma Kumar & ors. Vs Madan Mohan &
ors. Civil Appeal No. 4646 and 4647 of 2009
decided on 02.04.2013

12. United India Insurance Co. Ltd. Vs Sarita
Rani 1995 ACJ 895

13. Mohammed Siddique & anr. Vs National
Insurance Co. Ltd. & ors. (2020) 3 Supreme
Court Cases 57

14. National Insurance 6 of 10 Co. Ltd. Vs
Pranay Sethi & ors., 2017 0 Supreme (SC) 1050.

15. St. of Har. & ors. Vs Jasveer Kaur & ors.
2003 (3) TAC 569 (SC)

16. Reshma Kumari & anr. Vs Madan Mohan &
anr. passed in Civil Appeal No. 4646 and 4647 of
2009 decided on 02.04.2013

17. Sarla Verma & anr. Vs Delhi Transport Corp.
& anr. 2009 ACJ 1298

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

19. A.Vs Padma Vs Venugopal reported in 2012
(1) GLH (SC) 442,

(Delivered by Hon'ble Subhash Chand, J.)

1. We are taking up this defective
appeal for final disposal and directing the
office to give regular number, as we have
condoned the delay today.

2. Heard Sri Anubhav Sinha, learned
counsel for the appellants and Sri Brijesh
Chandra Naik, learned counsel for the
respondent no.3 (Insurance Company).
None appears for owner and driver.

3. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 30.03.2017 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge II, Gautam Budh Nagar
(hereinafter referred to as 'Tribunal') in
M.A.C.P. Case No.24 of 2014 awarding a
sum of Rs.9,31,625/- as compensation.

4. This appeal is of the year 2018 and
both the counsels have agreed with our
suggestion for getting the matter finally
disposed of without record so that the
liability to pay interest is lessened as the
only issue to be decided is quantum
assessed.

5. It is submitted by learned counsel
for the appellants that the deceased was 26
years of age at the time of accident. He was
in job, but he was not a permanent
employee, therefore, the Tribunal did not
grant any amount under the head of future
loss of income, as the job was only for
seven months. The Tribunal has considered
his income to be Rs.4500/- per month. It is
submitted by learned counsel for the
appellants that the income of the deceased
should have been considered to be between
Rs.7,000/- to Rs. 8,000/- per month as it
was proved by leading evidence to which,
the deceased being 26 years, 40% of the
income should be added and as he was
survived by his widow and two minor sons
and parents. 1/4th of the amount should be
deducted towards personal expenses of the
deceased. As far as multiplier is concerned,
there is no dispute between the parties. It is
also submitted that the interest should be
granted at the rate higher than 7% and
Rs.70,000/- with increase by 10% for three
years should granted under the head of nonpecuniary damages.

6. Sri Naik, learned Advocate
appearing for the respondent-Insurance
Company has contended that in the absence
of any proof of income of Rs.7000/- per
month cannot be considered to be income
of the deceased and the Tribunal has rightly
considered the income of the deceased to
372 INDIAN LAW REPORTS ALLAHABAD SERIES
be Rs.4500/-. It is further submitted by Sri
Naik that in view of the fact that an appeal
is continuation of proceedings though the
Insurance Company has not challenged the
findings, as far as negligence of the driver
is concerned, he can raise the same as held
by this High Court in case of National
Insurance Company Ltd. Vs. Smt.
Vidyawati Devi and two others decided
on 27.07.2016 in First Appeal From Order
No. 2389 of 2016. We permit Sri Naik to
raise the said issue of negligence. It is
submitted by Sri Naik that it a case of head
on collusion and therefore, the deceased
should also be held negligent and is
requested to this Court to up turn the
finding on the issue of negligence by
holding that the deceased to be negligent
and dismiss the claim petition.

7. Sri Naik, learned counsel for the
Insurance Company in oral reply to the
submissions of learned counsel for the
appellants on negligence contends that this
being a case of head on collision, the
deceased should also be held negligent and
requested this Court to upturn the finding
on issue of negligence.

8. As far as issue of negligence is
concerned, it is vehemently submitted by
learned counsel for the appellants, that the
deceased was held not at all negligent.
According to him, the accident was
between two vehicles of unequal magnitude
and, therefore, the deceased cannot be said
to have contributed to the accident having
taken place.

9. 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.

10. The principle of 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.

11. The Division Bench of this Court
in First Appeal From Order No. 1818 of
2012 ( Bajaj Allianz General Insurance
Co.Ltd. Vs. Smt. Renu Singh And
Others) decided on 19.7.2016 has held as
under :

"16. Negligence means failure to
exercise required degree of care and
caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence.
It is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one. It is rather a
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no
legal consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
9 All. Smt. Chandrakala & Ors. Vs. Imtiyaz & Ors.
373
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

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 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
374 INDIAN LAW REPORTS ALLAHABAD SERIES
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." emphasis added

12. At the very outset from the award
impugned, it is culled out that two vehicles
involved in the accident were of unequal
magnitude, namely, the motor cycle driven
by the deceased Anil Kumar Yadav and the
Dhumpher insured by the respondentInsurance Company. Issue no.1 has been
decided by the Tribunal whereby the
deceased has been considered to be riding
motorcycle namely a two wheeler whereas
the other vehicle was Dumpher namely the
big vehicle and collusion was between the
vehicles of two unequal magnitude. The
Tribunal decided the issue of negligence in
favour of the claimants though orally it was
submitted by Sri Naik that there was head
collision and the deceased was also
negligent. The Tribunal has relied on
several authoritative pronouncements for
arriving at the finding. The driver of the
Dumpher, who was the best witness has not
stepped in the witness box. The evidence of
PW-2, who was eye witness clinches the
issue. The evidence he was riding his
motorcycle and was driving vehicle along
with the deceased, he has been believed to
be an eye witness by the Tribunal. He has
opined in his oral testimony that when the
deceased came to Mahamaya fly over, the
Dumpher driven in rash and negligent
manner
came
and
dashed
with
the
motorcyclist causing his death. Except the
written statement, Insurance Company did
not lead any evidence. The decision cited
by the learned judge holding against the
Insurance company will come in the way of
oral submission of Sri Naik. The reason
being site plan shows that the deceased was
on his correct side. The FIR was lodged by
Sonu Yadav and the charge-sheet was laid
against respondent no.2, namely driver of
the Dumpher and therefore, it is very clear
that PW-2, who is eye witness has opined
that the Dumpher came on the wrong side
and dashed with the vehicle driven by the
deceased, namely Anil Kumar Yadav. This
evidence corroborated by the documentary
evidence is produced before the court
below and it is very clear that the evidence
produced before the Tribunal was pointing
out its finger toward the negligence of the
driver of the Dumpher. The instantaneous
death of the motorcyclist goes to show that
the motorcyclist was not negligent. The
decision of the Apex Court in case of
Archit Saini Vs. Oriental Insurance
Company Limited and others 2018 0
AIR (SC) 1143 and the reasonings of the
Apex Court in the said case is also required
to be applied to the facts of this case and
therefore, it cannot be said that the driver of
the vehicle was in any way negligent. The
finding of the court below cannot be
upturned and we are convinced that the
findings of fact recorded by the Tribunal
cannot be disturbed. The recent decision of
the Apex Court in case of Rajendra Singh
Vs. National Insurance Company (2020)
7 SCC 256 where the Apex Court has held
that issue of negligence has to be decided
on the basis of evidence adduced or on the
basis of evidence adduced against the
respondents driver and, therefore, also we
cannot accept the oral objections of learned
counsel for the Insurance Company that the
deceased should be held to be negligent
also. We also take into consideration the
decisions on which the Tribunal has placed
9 All. Smt. Chandrakala & Ors. Vs. Imtiyaz & Ors.
375
reliance namely United India Insurance
Company Limited Vs. Sarita Rani Dhaka
and others ACJ 895, Ranu Bala Paul Vs.
Bani Chakraborty and others 1999 (1)
TAC 151, N.K.V. Brothers (Pvt.) Limited
Vs. M. Karumai Ammal and others AIR
1980 SC 1354, Usha Rajkhowa and others
Vs. Paramount Industries and anothers 2
(2009) ACC 281 (SC), State of Haryana
and others Vs. Jasveer Kaur and othes
2003 (3) TAC 569 (SC), Smt. Sarla Verma
and
others
Vs.
Delhi
Transport
Corporation and others 2009 ACJ 1298,
Reshma Kumar and others Vs. Madan
Mohan and others Civil Appeal No. 4646
and 4647 of 2009 decided on 02.04.2013.
We are fortified our view and the oral
submission of Sri Naik is required to be
rejected. The factual scenario will also not
permit us to up turn the finding of the
Tribunal as far the issue of negligence is
concerned, therefore, no negligence can be
attributed to the deceased. Thus, it cannot be
said that the deceased was in any way
negligent. The site plan as discussed by the
Tribunal will also not permit us to take a
different view. Further aspect that requires to
be appreciated is that the charge-sheet was
laid against the driver of the Dumpher. The
fact that the driver of the Dumpher has not
stepped in the witness box this fact has also
been considered by the learned judge by
relying on the decision reported in United
India Insurance Company Limited Vs.
Sarita Rani 1995 ACJ 895, thus the
reasonings cannot be found fault with. The
other oral submission that the driver and
owner of the other vehicle has not been
joined as party is not required to be decided
as the driver of the other vehicle has died and
his heirs have claimed the compensation
hence this submission is also rejected.

13. We are also fortified in our view
by the decision of the Apex Court in case
of Mohammed Siddique and another Vs.
National Insurance Company Limited
and others (2020) 3 Supreme Court
Cases 57.

Compensation:-

14. This takes this Court to the issue
of compensation. The income of the
deceased in the year of accident and
looking to his profession namely that he
was having private job can be considered to
be Rs.7,000/- per month to which as he was
26 years, 40% as future loss of income
requires to be added in view of the decision
of the Apex Court in National Insurance
Company Limited Vs. Pranay Sethi and
Others, 2017 0 Supreme (SC) 1050.

15. As far as the income of the
deceased is concerned, the deceased was
working with The Oura Creation Sri Nagli
Enterprises Pvt. Limited and was earning
Rs. 8,000/- per month. PW-1 the widow of
the deceased has deposed the said fact and
also the salary slip was produced as Exhibit
23. PW-3 Sri Vijay Naik, who was H.R.
Executive had examined who has deposed
that document 19/G/1 and 19G/5 was
produced by his company that Anil Kumar
Yadav was being paid Rs. 8000/- per
month. The tribunal unfortunately has
considered his income to be Rs. 7000/- per
month for a period of seven months namely
for the period during which the deceased
had worked and thereafter has considered
his income to be Rs. 4500/- on the basis of
judgment of the Apex Court in State of
Haryana and others Vs. Jasveer Kaur
and others 2003 (3) TAC 569 (SC). We
fail to understand as to how the tribunal can
draw such a distinction during one year and
split the income of the deceased. The
tribunal according to us has committed an
error, which is apparent on the face of the
record in considering the income of the
376 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased as Rs. 4500/- per month, despite
the fact that income was proved as Rs.
8000/- per month. The reliance on the
judgment of State of Haryana (supra) is
erroneous reason, is once it has been
established by way of cogent evidence that
income of the deceased was Rs. 8000/-, the
tribunal cannot fix it notionally. We fix the
income at Rs. 7000/-, as Rs. 1000/- is the
other allowances, which are deductible as
per the judgment of the Apex Court. Thus,
the income is considered to be Rs. 7000/-
per month to be recalculated. The learned
judge has referred to the judgment of
Reshma Kumari and another Vs. Madan
Mohan and another passed in Civil
Appeal No. 4646 and 4647 of 2009 decided
on 02.04.2013, but the tribunal thereafter
has referred to the judgment of Sarla
Verma and another Vs. Delhi Transport
Corporation and another 2009 ACJ 1298
and not granted future loss of income. The
Tribunal most unfortunately held that
income of deceased should be considered
to be notional income of Rs. 4500/- per
month for five months and for the other
seven months his income should be
considered to be Rs. 7000/- per month. Rs.
4500 x 12 and multiplied by 17, on what
basis the Tribunal has split this, is not clear.
The Tribunal has considered that his basic
income was Rs. 7000/-, but is it not
clarified that what the deceased was doing
prior to that seven months and therefore,
the Tribunal has relied on judgment in case
of State of Haryana (supra), this is itself
arbitrary and against the mandate of Apex
Court as well as this High Court. Once the
salary slip shown to be that Rs. 8000/- the
other items could have been deducted and
income should be considered as Rs. 7000/-
per month. We, therefore, on the basis of
the judgment of Reshma Kumari (supra)
subsequently approved by the Apex Court
in the Pranay Sethi, recalculate the said
amount. Unfortunately, the learned judge
has despite the fact that judgment in
Reshma Kumari (supra) permitted addition
of 30% if the person, who is in the age
bracket of 40-50, the learned Tribunal
holds that फ्यूचर प्रॉपेक्ट्स (भावी सम्भावनाओ)
को वास्तनवक वेतन में जोडा नहीिं जा सकता as
it was not proved whether his job was
permanent, this again according to us is
perverse finding of fact, which requires to
be up turned as in the judgment of Sarla
Verma (supra), it is not opined as to
whether job of the deceased should be
permanent or private job for which future
prospects would be added, therefore, future
prospects of 30% will have to be added.
Even on the plain reading of Sarla Verma
case, learned judge would not have made
this mistake as even if we go by the Rules,
namely Uttar Pradesh Motor Vehicles
(Eleventh Amendment) Rules, 2011. The
deduction of 1⁄4 for personal expenses is not
disturbed, hence we recalculate the amount
of compensation as per settled legal
principles enunciated in Pranay Sethi and
Reshma Kumari (supra).

16. 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. Income Rs.7,000/-

ii. Percentage towards future
prospects : 50% namely Rs.3500/-

iii. Total income : Rs. 7,000 +
3500 = Rs. 10,500/-

iv. Income after deduction of
1/4th : Rs. 7,375/- (rounded up)

v. Annual income : Rs.7,375 x 12
= Rs. 88,500/-

vi. Multiplier applicable : 17

vii.
Loss
of
dependency:
Rs.88,500 x 17 = Rs.15,04,500/-
9 All. Smt. Chandrakala & Ors. Vs. Imtiyaz & Ors.
377

viii. Amount under non pecuniary
heads : Rs.70,000/-

x.
Total
compensation
:
15,74,500/-

17. 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."

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

19. 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 respondentInsurance Company 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. The amount
already deposited be deducted from the
amount to be deposited.

20. This Court is thankful to both the
counsels for getting this matter disposed of.

21. It is stated by learned counsel for
the appellants that they have been granted
recovery right. The owner despite service
of notice has not appeared for three years,
hence the ex-parte judgement is passed and
recovery right is maintained as here also no
witness or permit is produced.

22. 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 applicants/claimants
are neither illiterate nor rustic villagers.

23. The Registrar General is requested
to circulate this judgment so that in future
the tribunals may not commit this error of
taking notional income with the income of
the deceased is proved by documentary
evidence as well as oral ocular version and
tribunal shall in future consider the income
of the deceased which is proved.

Ref: Civil Misc. Delay Condonation
Application 1 of 2018

1. This is an application seeking
condonation of delay in filing the appeal.

2. The delay in filing the appeal is
265 days and vehemently objected by
counsel for the respondent.

3. Cause shown for the delay in the
affidavit attached to delay condonation
application is sufficient, hence, the delay is
condoned.

4. This application, accordingly
stands allowed.
378 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Office to give regular number to
the appeal.

(Ref : Civil Misc. Correction No. 4 of
2021)

1. Heard.

2. This is an application seeking
correction in the order dated 29.7.2021
passed by this Court.

3. Correction is allowed.

4. In the first line of paragraph No.
21, the word 'appellants' be replaced with
the
words
'respondent-Insurance
Company'.

5. The aforesaid correction be made
and the corrected copy of the order dated
21.5.2019 be given to the parties.
----------
(2021)09ILR A378
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

FAFO Defective No. 432 of 2021

Uday Prakash ...Appellant
Versus
Anand Pandit & Anr. ...Opposite Parties

Counsel for the Appellant:
Sri Shantanu, Ms. Poonam Meena, Sri
Mahir Malhotra, Sri Raj Kumar Dhama, Sri
Gaurav Bhardwaj

Counsel for the Opposite Parties:
Sri Ankur Tandon, Sri Anubhav Shukla, Sri
Rahul Agarwal, Sri Rahul Rathi, Sri Ram
Shiromani Shukla, Sri Prafull Shukla, Sri
Nishchal Anand, Sri Shashi Nandan (Senior
Adv.)

Copyright
infringement-application
of
temporary injunction rejected-appeal-no
prima facie plagiarism -impugned order
not disturbed.

Appeal disposed. (E-9)

List of Cases cited:

1. Fateh Singh Mehta Vs O.P. Singhal & ors.,
1989 SCC OnLine Raj 9

2.Wander Ltd. & anr. Vs Antox India P. Ltd.,1990
(SUPP) SCC 727

3. Gopal Krishnaji Ketkar Vs Mohamed Haji Latif
& ors., AIR 1968 SC 1413

4. P.G. Narayanan Vs The U.O.I., rep. by the
Secretary,
Ministry
of
Information
&
Broadcasting, Sastri Bhavan, New Delhi-110 001
& ors., 2005 SCC OnLine Mad 379

5. Super Cassettes Industries Pvt. Ltd. & anr. Vs
Nandi Chinni Kumar & ors., 2020 SCC OnLine TS
1282

6. Mansoob Haider Vs Yashraj Films Pvt. Ltd.
2014 SCC OnLine Bom 652

7. Graigola Merthyr Comp. Ltd. Vs Mayor
Alderman, [1928] Ch. 235

8. Burjesses of Swansea7 & Zee Entertainment
Enterprises Ltd. Vs Sony Pictures Network Pvt.
Ltd., 2017 SCC OnLine Bom 409

9. Akashaditya Harishchandra Lama Vs Ashutosh
Gowarikar, 2016 SCC OnLine Bom

10.John Hart Jr. & anr.Vs Mukul Deora & ors.,
2021 SCC OnLine Del 3499

11. XYZ Films Vs UTV Motion Pictures/ UTV
Software Communications Ltd, 2016 (67) PTC81
(Bom)

12. Macmillan & Comp. Ltd. Vs K. & J. Cooper,
AIR 1924 Privy Council 75