# Smt. Geeta Vishnoi & Ors v. M/s Kanpur Shifter Private Ltd. & Anr

- **Citation:** (2022) 2 ILRA 351
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-20
- **Case number:** First Appeal From Order No. 1401 of 2009
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-vishnoi-ors-v-m-s-kanpur-shifter-private-ltd-anr-47523
- **Pages:** 7

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Principles
of
res
ipsa
loquiter
-
contributory negligence - Negligence is
not always a question of direct evidence -
352 INDIAN LAW REPORTS ALLAHABAD SERIES
It is an inferen to be drawn from proved
facts - Negligence is not an absolute term,
but is a relative one - 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. (Para - 6)

Two appeals against same judgement -
Claimants filed for enhancement of award -
Insurance Company of offending truck filed
mainly
on
the
ground
of
contributory
negligence of the deceased - deceased
driving scooter on the wrong side of the road
- driving negligently - truck was on correct
side of the road but was on high speed -
Had the speed of the truck been reasonable
and slow, the accident could have been
avoided.

HELD:- Deceased and Truck driver both
negligent in driving vehicle to the tune of
50% each . Multiplier of 14 applied, keeping
in view of 42 years of age of the deceased .
Under the head of non-pecuniary damages,
claimants entitled to get Rs.1,90,000/- in all
. Compensation payable to the claimants
after
deduction
of
50%
towards
contributory negligence of the deceased :
Rs.17,64,416. The rate of interest fixed at
7.5% instead of 7% per annum awarded by
tribunal. Judgment and award passed by
the Tribunal shall stand modified. (Para -
11,14,15,18)

Appeals partly allowed. (E-7)

List of Cases cited:-

## Text

2 All. Smt. Geeta Vishnoi & Ors. Vs. M/s Kanpur Shifter Private Ltd. & Anr.
351

"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."

20. 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.

21. In view of the above, the appeal is
partly allowed. Judgment and award passed
by the Tribunal is modified to the aforesaid
extent. United India Insurance Company
Limited-respondent No.3 shall deposit the
entire amount within a period of 12 weeks
from today with interest @ 7.5% per
annum 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.

22. 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)02ILR A351
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2021

BEFORE

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

First Appeal From Order No. 1401 of 2009
&
First Appeal From Order No. 1559 of 2009

Smt. Geeta Vishnoi & Ors. ...Appellants
Versus
M/s Kanpur Shifter Private Ltd. & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Mohd. Naushad Siddiqui, Sri Shreesh
Srivastava

Counsel for the Respondents:
Sri Rahul Sahai

(A) Civil Law - Motor Vehicles Act, 1988 -
Principles
of
res
ipsa
loquiter
-
contributory negligence - Negligence is
not always a question of direct evidence -
352 INDIAN LAW REPORTS ALLAHABAD SERIES
It is an inferen to be drawn from proved
facts - Negligence is not an absolute term,
but is a relative one - 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. (Para - 6)

Two appeals against same judgement -
Claimants filed for enhancement of award -
Insurance Company of offending truck filed
mainly
on
the
ground
of
contributory
negligence of the deceased - deceased
driving scooter on the wrong side of the road
- driving negligently - truck was on correct
side of the road but was on high speed -
Had the speed of the truck been reasonable
and slow, the accident could have been
avoided.

HELD:- Deceased and Truck driver both
negligent in driving vehicle to the tune of
50% each . Multiplier of 14 applied, keeping
in view of 42 years of age of the deceased .
Under the head of non-pecuniary damages,
claimants entitled to get Rs.1,90,000/- in all
. Compensation payable to the claimants
after
deduction
of
50%
towards
contributory negligence of the deceased :
Rs.17,64,416. The rate of interest fixed at
7.5% instead of 7% per annum awarded by
tribunal. Judgment and award passed by
the Tribunal shall stand modified. (Para -
11,14,15,18)

Appeals partly allowed. (E-7)

List of Cases cited:-

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

2. Bimala Devi Vs Himachal Pradesh Rct (2009)
13 SCC 530

3. Sunita Vs Rajasthan St. Road Transporation
Corp. (2019) 0 SCC 195
4. Vimal Kanwar & ors. Vs Kishore Dan & ors.,
AIR 2013 SC 3830

5. National Insurance Co. Ltd. Vs Pranay Sethi &
ors. 2014 (4) TAC 657 (SC)

6. Sarla Verma Vs Delhi Transport Corporation
2009 (2) TAC 677 (SC)

7. Kurvan Ansari @ Kurvan Ali & anr. Vs Shyam
Kishore Murmu & anr., 2021(4) TAC (SC)

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

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

10. Smt. Sudesna & ors. Vs Hari Singh & anr.,
First Appeal From Order No.23 of 2001

11. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd., First Appeal From
Order No.2871 of 2016

(Delivered by Hon'ble Ajai Tyagi, J.)

1. These two appeals have been
preferred by the parties against the same
judgement and award passed by Motor
Accident
Claims
Tribunal/Additional
District Sessions Judge, court No.17,
Kanpur Nagar on 31.01.2009. FAFO
No.1401 of 2009 (Smt. Geeta Vishnoi and
others Vs. M/s Kanpur Shifter Pvt. Ltd. and
others)
is
filed
by
claimants
for
enhancement of the impugned award while
FAFO No.1559 of 2009 (The New India
Assurance Company Limited Vs. Smt.
Geeta Vishnoi and others) is filed by the
Insurance Company of offending truck
mainly on the ground of contributory
negligence of the deceased. These two
appeals are against the same judgement.
Hence, these are heard and being decided
together.

2. Brief facts of the case are that
claimants of FAFO 1401 of 2009 filed a
2 All. Smt. Geeta Vishnoi & Ors. Vs. M/s Kanpur Shifter Private Ltd. & Anr.
353
claim petition before learned Tribunal on
account of the death of Chandra Kumar
Vishnoi with the averments that on
16.03.2007, the deceased Chandra Kumar
Vishnoi was going by scooter bearing
No.U.P. 78 V 9207 on by pass road within
the jurisdiction of Police Station- Barra,
District- Kanpur Nagar. He was driving the
the scooter with slow speed on its left side.
Between 10:00 pm and 11:00 pm (night)
when he reached near Ruchi Guest House,
a tanker bearing No. U.P. 78 N 2323 hit the
scooter of the deceased from behind while
being driven rashly and negligently by its
driver. In this accident, Chandra Kumar
Vishnoi sustained fatal injuries and died on
the spot. It is also averred that the age of
the deceased was 40 years and he was
Professor in DAV Degree College in
Kanpur.

3. Heard learned counsel for both the
parties and perused the record.

4. Learned counsel for the Insurance
Company vehemently argued that it is a
crystal
clear
case
of
contributory
negligence on the part of the deceased but
learned Tribunal inspite of discussing the
issue, did not arrive at right conclusion and
it was alleged that truck driver was solely
negligent.

5. The principle for deciding whether
driver of a vehicle is negligent or not was
discussed in below mentioned judgments.

6. 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 inferen 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
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. Clause6 of such Regulation clearly directs that the
driver of every motor vehicle to slow down
354 INDIAN LAW REPORTS ALLAHABAD SERIES
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 comear 1992. "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

7. The Supreme Court in Bimala
Devi Vs. Himachal Pradesh Rct (2009)
13 SCC 530 and Sunita Vs. Rajasthan
State Road Transporation Corporation
(2019) 0 SCC 195 has held that the
evidence Act 1872, cast a duty on the
respondents to adduce the evidence, so it is
to show that the vehicles were being driven
so as to avoid any accident being taken
place.

8. The principles of res ipsa loquiter
would apply on the facts of this case to
demonstrate that the deceased was at the
wrong side of the road and driving other
side of the divider. If he would not have
gone on the incorrect side, the accident
would not have taken place but even
though the accident could have been
avoided if the truck would have been at
moderate speed.

9. Learned counsel for Insurance
Company attracted our attention towards
the site-plan of the place of occurrence
also,
which
is
prepared
by
the
Investigating Officer during investigation
of connected criminal case against the
driver of the truck. It is contended by the
insurance company that the road, on which
accident took place, was one way road
having divider. The truck was being
driven on the correct side of the road but
the deceased was coming from the
opposite side on the same road on which
the truck was coming, meaning thereby
the deceased was on the left side of the
divider but on the right side road which
was meant for coming the traffic from
opposite side of the scooter of the
deceased. Learned counsel submitted that
the Tribunal has overlooked this aspect of
the accident and held no contributory
negligence.
Learned
counsel
also
submitted that the truck driver was on its
correct side and plying the vehicle at
normal speed. Hence, the deceased was
solely negligent and responsible for the
accident.

10. Per contra, learned counsel for the
claimants submitted that the deceased was
on left side of the road and the truck was in
the middle of the road. Learned Tribunal has
rightly held that as per site-plan, the
deceased was just five feet on the road from
its edge while the truck was 15 feet from the
other side of the edge of the road, hence, in
this way, the truck driver was solely
negligent and responsible for the accident.
There is no illegality or infirmity in the
judgement of learned Tribunal and it does
not call for any interference by this Court.
2 All. Smt. Geeta Vishnoi & Ors. Vs. M/s Kanpur Shifter Private Ltd. & Anr.
355

11. We threadbare perused the copy
of the site-plan but before discussing the
site-plan we taken up issue whether in the
accident in question, both the vehicles were
coming from opposite direction or scooter
was hit by the truck from behind. As per
averment of petition, the truck driver hit the
scooter from behind but it is not the case
because the copy of the site-plan clearly
shows that it was highway and one way
road where accident took place. There was
divider between the road and both the
vehicles are on one side of the road where
the truck driver was going from east to
west on its correct side but the deceased
was going from west to east on the same
side of the divider and the accident took
place when both the vehicles were coming
from opposite direction. This fact is also
corroborated by the evidence of eyewitness PW2, who has deposed that the
road at the site of the accident is one way.
There is divider in between. Deceased was
going on left side of the road and tanker
was coming in the middle of the road. If
this statement of PW2 is seen in the light of
the site-plan, it is clear that both the
vehicles were on the same side of the road
and coming from opposite direction.
Learned Tribunal discussed this point in its
judgement but failed to appreciate the point
and situation of divider. Learned Tribunal
held that the deceased was at the left side of
the divider but he overlooked the situation
that he was on the same side of the road on
which the truck was coming from opposite
direction and this side was the wrong side
for the deceased to ply his vehicle. Other
side of the road from divider was the
correct side for the deceased to drive the
scooter. Hence, it is proved on the basis of
evidence that the deceased was driving the
scooter on the wrong side of the road and
he was driving negligently. Although, the
truck was on correct side of the road but he
was on high speed. Had the speed of the
truck been reasonable and slow, the
accident could have been avoided. After
discussing the point of the negligence, we
hold the deceased to be 50% negligent. In
this way, we hold the deceased and the
truck driver both were negligent in driving
the vehicle to the tune of 50% each.

12. Now we come to the issue of
quantum of compensation. Learned counsel
for the claimants submitted that learned
Tribunal has awarded less amount of
compensation because the income of the
deceased was not assessed in right
perspective. It is submitted that the
deceased was Professor in DAV Degree
College Kanpur and he was getting salary
of Rs.28,391/- per month but the Tribunal
has assessed only Rs.22,931/- as salary per
month. Learned counsel for the claimants
argued that apart from basic salary, D.A.
H.R.A. also shall be taken into account and
no deduction in the salary shall be
considered.

13. Per contra, learned counsel for the
Insurance Company argued that only that
portion of salary will be taken into account
as is left after deduction of income tax. We
are fully convinced with the argument of
learned
counsel
for
the
Insurance
Company.
Perusal
of
the
impugned
judgement shows that learned Tribunal has
opined that Rs.2,000/- was income tax
which was liable to be deducted from the
salary. Basic-pay of the deceased was
Rs.13,680/- and he was getting DA at
Rs.6840/- and additional D.A. at Rs.5951/-
as well as house rent allowance of
Rs.1980/-. Certain deductions could not
have been made by the Tribunal in view of
the judgement of Vimal Kanwar and
others v. Kishore Dan and others, AIR
2013 SC 3830. The Tribunal has concluded
356 INDIAN LAW REPORTS ALLAHABAD SERIES
that income tax returns of the deceased are
filed but no return is filed pertaining to the
year of the death. Hence, finally the
Tribunal has assessed salary of the
deceased at Rs.22,931/- after making the
deduction towards income tax only, which
we do not disturb.

14. Learned Tribunal has not granted
any amount towards future loss of income.
It is admitted fact that the deceased was a
salaried person and his age was 42 years at
the time of accident. Hence, as per the
judgement
of
National
Insurance
Company Limited Vs. Pranay Sethi and
Others 2014 (4) TAC 657 (SC) 30% of the
income shall be added towards future
prospects. Keeping in view the number of
the dependents on the deceased, the
Tribunal has rightly deducted 1/3 of the
income towards personal expenses of the
deceased. Learned Tribunal has applied
multiplier of 15 in accordance with the
second Schedule of Motor Vehicle Act but
multiplier of 14 shall be applied, keeping in
view of 42 years of age of the deceased, in
view of the judgement of Hon'ble The
Apex Court in Sarla Verma Vs. Delhi
Transport Corporation 2009 (2) TAC
677 (SC). As far as non-pecuniary damages
are concerned, Tribunal has provided
Rs.5,000/-
for
loss
of
consortium,
Rs.2,500/- for loss of estate and Rs.2,000/-
for funeral expenses, but as per the
judgement
of
Pranay
Sethi
(surpa)
Rs.15,000/- shall be granted for loss of
estate and Rs.15,000/- shall be granted for
funeral expenses. The wife of the deceased
shall be entitled to get Rs.40,000/- for loss
of consortium. Deceased is survived by two
children and parents. Hence, in view of the
judgement of Kurvan Ansari @ Kurvan
Ali and another Vs. Shyam Kishore
Murmu and another, 2021(4) TAC (SC),
both the children of the deceased shall get
filial consortium Rs.40,000/- each and
mother of the deceased shall also get filial
consortium of Rs.40,000/-. Hence, under
the head of non-pecuniary damages, the
claimants
shall
be
entitled
to
get
Rs.1,90,000/- in all.

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

(i) Monthly income of the deceased :
Rs.22,931

(ii) Addition towards future prospects
(30%) : Rs.6879/-

(iii)
Total
income
22931+6879=
Rs.29,810/-

(vi) Income after deduction of 1/3 :
29810-9936= Rs.19,874/-

(v) Annual income : 19874 x 12 =
Rs.2,38,488/-

(vi) Multiplier applicable : 14

(vii) Loss of dependency : 2,38,488 x
14 = Rs.33,38,832/-

(vii) Loss of estate : Rs.15,000/-

(ix) Funeral expenses : Rs.15,000/-

(x) Loss of consortium and filial
consortium:
40,000+40,000+40,000+40,000=
Rs.1,60,000/-

(xi) total compensation : Rs.33,38,832
+ 1,90,000= Rs.35,28,832/-

Compensation
payable
to
the
claimants after deduction of 50% towards
contributory negligence of the deceased :
Rs.17,64,416.

16. 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:
2 All. Smt. Kamla & Ors. Vs. Shri Gurdeep Singh Kukreja & Anr.
357

"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."

17. 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.

18. In view of the above, both the
appeals are 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 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.

19. 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)02ILR A357
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2021

BEFORE

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

First Appeal From Order No. 1491 of 2021

Smt. Kamla & Ors. ...Appellants
Versus
Shri Gurdeep Singh Kukreja & Anr.
 ...Respondents

Counsel for the Appellants:
Sri S.C. Kesarwani

Counsel for the Respondents:
Sri Dharmendra Kumar, Sri Rahul Chaudhary

(A) Civil Law - Motor Vehicles Act, 1988 -
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