# Smt. Geeta Yadav & Ors v. Prem Roadways Registered, Punjab & Anr

- **Citation:** (2022) 5 ILRA 847
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-18
- **Case number:** First Appeal From Order No. 4038 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-yadav-ors-v-prem-roadways-registered-punjab-anr-48597
- **Pages:** 13

## Headnote

A. Civil Law - Motor Accident Act, 1988 -
Claim - Rule of road - Obligation of
vehicles running on road - Bus dashed the
Scooter from behind and dragged the
scooterist - Liability - Held, as per road
safety it is obligatory on a vehicle coming
from behind to be more careful and
cautious - The driver of bus has not
followed this basic rule - High Court
upheld the finding of Tribunal on the issue
of negligence. (Para 20)

B. Civil Law - Motor Accident Act, 1988 -
Section 169 - Claim - Deceased was
serving
in
Indian
Army
-
Tribunal
disbelieved the salary certificate issued by
Captain holding that the said document
has not been proved by the claimants by
examining the Issuing Authority of the
salary slip - Tribunal has considered the
income of the deceased to be Rs. 3,000/-
per month which was that of a labourer -
Validity challenged - Held, the finding of
the Tribunal is bad as the Tribunal under
Section 169 should have called the
authority who has issued salary certificate
to testify the authenticity of the said
document. (Para 22, 25 and 26)

C. Motor Accident Claim - Compensation -
Tribunal refused to grant future loss and
added
multiplier
of
15
-
Validity
challenged - Held, the judgment itself is
vulnerable - High Court determined the
income of the deceased Rs. 27,000/- per
month and re-computed the compensation
by deducting 2000/- as the income tax
from it and adding 50% future loss and
applying multiplier of 16. (Para 26 and 27)

D. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,
when it can be applied - 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
848 INDIAN LAW REPORTS ALLAHABAD SERIES
intentional or accidental though it is
normally accidental - 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. (Para
12)

E. Motor Accident Claim - Principle of
contributory negligence - Scope and
meaning
-
A
person
who
either
contributes or is co author of the accident
would be liable for his contribution to the
accident having taken place and that
amount
will
be
deducted
from
the
compensation. (Para 13)
F. Civil Law - Income Tax Act, 1961 -
Section 194A (3) (ix) - Withdraw of
amount of interest - Certificate of Income
Tax authority, when required - Held, if the
interest payable to any claimant for any
financial
year
exceeds
Rs.
50,000/-,
insurance Co./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. (Para 32)
Appeal
allowed,
Cross
objection
of
Insurance Co. dismissed (E-1)
List of Cases cited:-

## Text

_Characters 0–39,633 of 42,700. This is a partial read: ask again with offset=39633 for what follows._

5 All. Smt. Geeta Yadav & Ors. Vs. Prem Roadways Registered, Punjab & Anr.
847

36.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.

37. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private Ltd. Vs Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation is to
safeguard the interest of the claimants. As
10 years have elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.

38. This Court is thankful to both the
counsels for getting this matter decided.
----------
(2022)05ILR A847
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2022

BEFORE

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

First Appeal From Order No. 4038 of 2012

Smt. Geeta Yadav & Ors. ...Appellants
Versus
Prem Roadways Registered, Punjab & Anr.
 ...Respondents

Counsel for the Appellants:
Sri S.D. Yadav
Counsel for the Respondents:
Sri Rahul Sahai, Sri Aditya Singh Parihar

A. Civil Law - Motor Accident Act, 1988 -
Claim - Rule of road - Obligation of
vehicles running on road - Bus dashed the
Scooter from behind and dragged the
scooterist - Liability - Held, as per road
safety it is obligatory on a vehicle coming
from behind to be more careful and
cautious - The driver of bus has not
followed this basic rule - High Court
upheld the finding of Tribunal on the issue
of negligence. (Para 20)

B. Civil Law - Motor Accident Act, 1988 -
Section 169 - Claim - Deceased was
serving
in
Indian
Army
-
Tribunal
disbelieved the salary certificate issued by
Captain holding that the said document
has not been proved by the claimants by
examining the Issuing Authority of the
salary slip - Tribunal has considered the
income of the deceased to be Rs. 3,000/-
per month which was that of a labourer -
Validity challenged - Held, the finding of
the Tribunal is bad as the Tribunal under
Section 169 should have called the
authority who has issued salary certificate
to testify the authenticity of the said
document. (Para 22, 25 and 26)

C. Motor Accident Claim - Compensation -
Tribunal refused to grant future loss and
added
multiplier
of
15
-
Validity
challenged - Held, the judgment itself is
vulnerable - High Court determined the
income of the deceased Rs. 27,000/- per
month and re-computed the compensation
by deducting 2000/- as the income tax
from it and adding 50% future loss and
applying multiplier of 16. (Para 26 and 27)

D. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,
when it can be applied - 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
848 INDIAN LAW REPORTS ALLAHABAD SERIES
intentional or accidental though it is
normally accidental - 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. (Para
12)

E. Motor Accident Claim - Principle of
contributory negligence - Scope and
meaning
-
A
person
who
either
contributes or is co author of the accident
would be liable for his contribution to the
accident having taken place and that
amount
will
be
deducted
from
the
compensation. (Para 13)
F. Civil Law - Income Tax Act, 1961 -
Section 194A (3) (ix) - Withdraw of
amount of interest - Certificate of Income
Tax authority, when required - Held, if the
interest payable to any claimant for any
financial
year
exceeds
Rs.
50,000/-,
insurance Co./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. (Para 32)
Appeal
allowed,
Cross
objection
of
Insurance Co. dismissed (E-1)
List of Cases cited:-
1. First Appeal From Order No. 1118 of 2009;
Smt. Nasreen Jahan & ors. Vs Km. Garima
Pandey decided on 2.8.2017
2. Sunita & ors. Vs Rajasthan Road Transport
Corp. & anr.; 2019 (1) T.A.C. 710
3. F.A.F.O. No. 2389 of 2016; National
Insurance Co. Ltd. Vs Smt. Vidyawati Devi 7 ors.
decided on 27.7.2016
4. First Appeal From Order No. 1818 of 2012;
Bajaj Allianz General Insurance Co. Ltd. Vs Smt.
Renu Singh & ors. decided by Allahabad High
Court on 19.7.2016
5. Archit Saini & anr. Vs Oriental Insurance Co.
Ltd.; AIR 2018 SC 1143
6. Smt. Kaushnuma Begum & ors. Vs The New
India Assurance Co. Ltd.; (2001) 2 SCC 9.
7. Vimla Devi & ors. Vs National Insurance Co.
Ltd. & ors. 2019 (133) ALR 768
8. Anita Sharma Vs New India Assurance Co.
Ltd.; (2021) 1 SCC 171
9. C.MA. No. 1482 of 2017; Reliance General
Insurance Co. Ltd. Vs Subbulakshmi & ors.
decided by Madras High Court
10. C.M.P. No. 7919 of 2017; Puspabai
Purshottam Udeshi Vs Ranjit Ginning & Pressing
Co., 1977ACJ 343 (SC).
11. Renu Rani Shrivastava Vs New India
Assurance Co. Ltd.; 2019 (0) AIJELSC 65364
12. Jumani Begam Vs Ram Narayan, 2019 (0)
AIJELSC 65571
13. Nishan Singh Vs Oriental Insurance Co. Ltd.;
2018 (0) AIJEL-SC 62197.
14. F.A.F.O. No. 2019 of 2021l ; Akhilesh Kumar
Anand Vs Rahul Mishra & anr.) decided on
18.4.2022
15. Anil Khoshla Vs Mahesh Kumar & ors. 2011
(1) T.A.C. 250 (DEL)
16. Smt. Mithilesh Mishra Vs Ajay Kumar, 2012
(3) T.A.C. 45 (All.).
17. National Insurance Co. Ltd. Vs Pranay Sethi
& ors. 2017 LawSuit (SC) 1093
18. Sarla Verma & ors. Vs Delhi Transport Corp.
& anr.; 2009 LawSuit (SC)
19. National Insurance Co. Ltd. Vs Mannat Johal
& ors. 2019 (2) T.A.C. 705 (S.C.)
20. A.VsPadma Vs Venugopal; 2012 (1) GLH
(SC) 442
21. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co. Ltd.; 2007(2) GLH 291
22. Review Application No. 1 of 2020 in First
Appeal From Order No. 23 of 2001; Smt.
Sudesna & ors. Vs Hari Singh & anr.
5 All. Smt. Geeta Yadav & Ors. Vs. Prem Roadways Registered, Punjab & Anr.
849
23. R/Special Civil Application No. 4800 of 2021;
The Oriental Insurance Co.
Ltd. VsChief
Commissioner of Income Tax (TDS) decided by
High Court of Gujarat on 5.4.2022.
24. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs Union of India & ors. decided by Apex Court
on 27.1.2022
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri S.D. Yadav, learned
counsel for the appellants-claimants and Sri
Aditya Singh Parihar, learned Advocate
appearing for Sri Rahul Sahai, learned
counsel
for
the
respondent-Insurance
Company. None has appeared for the
respondent-owner of the offending vehicle.

2. By way of this appeal, the
appellants-claimants, have challenged the
judgment and order dated 9.8.2012 passed
by
the
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.14, Kanpur Nagar (hereinafter referred
to as 'Tribunal') in M.A.C. No.299 of 2011
awarding compensation of Rs.3,69,500/-
with interest at the rate of 6% simple
interest till amount is deposited.

3. Brief facts as culled out from the
record are that on 18.10.2009 at about 1.00
p.m. a bus bearing No.PB-3 H 9581 which
was coming from Barnala side dashed the
Motorcycle of the deceased bearing No.UP
71 E 2269 from behind. It has been averred
that the bus was being driven by its driver
rashly and negligently and even without
blowing
horn.
The
accident
caused
grievous
injuries
to
deceased-Kaushal
Kishore who has succumbed to the injuries
in Military Hospital, Bhatinda Cantt.

4. Consequent upon the death of the
deceased, the widow of the deceased along
with three others filed claim petition before
the Tribunal claiming compensation of
Rs.88,00,000/- with interest at the rate of
10%. The Tribunal has framed four issues
and held driver of the offending vehicle
solely negligent for the accident having
taken place. As far as compensation is
concerned, the Tribunal has considered the
income of the deceased to be Rs.3,000/- per
month though it was proved that he was in
service of Armed Forces, deducted 1/3rd
towards personal expenses of the deceased,
applied multiplier of 15 and granted
Rs.9500/- under non pecuniary heads.

5. It is submitted by learned counsel
for the appellants that the deceased was
Havildar in Indian Army and was earning
Rs.27,000/- per month, his salary certificate
was placed on record vide Ex.39 Ga which
was disbelieved by the Tribunal. It is stated
that this finding of the Tribunal is perverse
and is required to be upturned as the
reasoning given for not believing the said
documents show lack of holistic approach
expected of a Motor Accident Claims
Tribunal.

6. It is further submitted by learned
counsel for the appellants that the Tribunal
has not granted any amount towards future
loss of income of the deceased which is
required to be granted. It is submitted that
the deduction towards personal expenses of
the deceased should be 1/4th as the
deceased was survived by his widow, a
minor son and aged parents. It is further
submitted that the deceased being in the
age bracket of 31-35, multiplier of 16
should be granted.

7. It is lastly submitted by learned
counsel for the appellants that the amount
under non-pecuniary heads and the interest
awarded by the Tribunal is on the lower
side and are required to be enhanced.
850 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Learned counsel for the appellants
has relied on the decision of the Division
Bench of this Court in First Appeal From
Order No. 1118 of 2009 (Smt. Nasreen
Jahan and Others v. Km. Garima
Pandey) decided on 2.8.2017 and on the
decision of the Apex Court in Sunita and
Others vs. Rajasthan Road Transport
Corporation and Anr., 2019 (1) T.A.C.
710 so as to contend that the reasoning for
non consideration of documentary evidence

9. As against this, the Insurance
Company
has
also
challenged
the
judgment and order impugned by way of
oral cross objection as far as negligence
and compensation awarded are concerned
and it is submitted that in view of the
decision in F.A.F.O. No.2389 of 2016
(National Insurance Co. Ltd. Vs. Smt.
Vidyawati Devi And 2 Others) decided
on 27.7.2016 and under Section 173 of
Motor Vehicles Act, 1988, this Court is
under obligation to decide the same. The
ground of cross objection is that the
deceased was also the co-author of the
accident and, hence, the finding of the
Tribunal holding the driver of the bus to
be solely negligent is erroneous and is
required to be upturned.

10. It is also submitted by learned
counsel
for
the
respondent-Insurance
Company that the income which has not
been proved by cogent evidence has rightly
not been considered by the Tribunal. It is
further submitted that the quantum of
compensation awarded by the Tribunal is
just and proper and does not call for any
interference of this Court as the income
was rightly not proved by leading cogent
evidence. The documents being not public
document have rightly not been relied by
the Tribunal and there is no cogent reason
to enhance the compensation.

11. Before adverting to the issue of
compensation awardable, it would be
necessary to decide the oral cross objection
relating to contributory negligence of the
drivers involved in the accident. While
dealing with submission on issue of
negligence raised by the learned counsel
for
respondent-Insurance
Company,
it
would be relevant to discuss the principles
for deciding contributory negligence and
for that the principles for considering
negligence will also have to be looked into.

12. 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 though
it is normally accidental. Negligence
connotes reckless driving and the injured
must always prove that the other side is
negligent. If the injury or 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 which
depends on facts of each case.

13. The principle so as to consider a
driver to be contributor to accident has
been discussed time and again. A person
who either contributes or is co author of the
accident
would
be
liable
for
his
contribution to the accident having taken
place and that amount will be deducted
from the compensation payable to him if he
is injured and to his legal representatives if
he dies in the accident.

14. 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
5 All. Smt. Geeta Yadav & Ors. Vs. Prem Roadways Registered, Punjab & Anr.
851
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
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
852 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

emphasis added

15. In Archit Saini and Another Vs.
Oriental Insurance Company Limited,
AIR 2018 SC 1143 the finding of the
Tribunal was upheld by adverting to the
same, more particularly, the Apex Court
has upheld the finding in paragraph 21 to
27 in its judgment. The paragraph 5 of the
said Apex Court's judgment is reproduced
hereinbelow:

"5.The respondents had opposed
the claim petition and denied their liability
but did not lead any evidence on the
relevant issue to dispel the relevant fact.
The Tribunal after analysing the evidence,
including the site map (Ext. P-45) produced
on record along with charge-sheet filed
against the driver of the Gas Tanker and
the
arguments
of
the
respondents,
answered Issue 1 against the respondents
in the following words:

"21. Our own Hon'ble High
Court
in
a
case
captioned Lakhu
Singh v. Uday Singh [Lakhu Singh v. Uday
Singh, 2007 SCC OnLine P&H 865 : PLR
(2007) 4 P&H 507] held that while
considering a claim petition, the Tribunal
is required to hold an enquiry and act not
as criminal court so as to find whether the
claimants have established the occurrence
beyond shadow of any reasonable doubt. In
the enquiry, if there is prima facie evidence
of the occurrence there is no reason to
disbelieve such evidence. The statements
coupled with the facts of registration of FIR
and trial of the accused in a criminal court
are sufficient to arrive at a conclusion that
the accident has taken place. Likewise,
in Kusum
Lata v. Satbir [Kusum
Lata v. Satbir, (2011) 3 SCC 646 : (2011) 2
SCC (Civ) 37 : (2011) 2 SCC (Cri) 18 :
(2011) 2 RCR (Civil) 379] the Hon'ble
Apex Court has held that in a case relating
to motor accident claims, the claimants are
not required to rove the case as it is
required to be done in a criminal trial. The
5 All. Smt. Geeta Yadav & Ors. Vs. Prem Roadways Registered, Punjab & Anr.
853
Court must keep this distinction in mind.
Strict proof of an accident caused by a
particular bus in a particular manner may
not be possible to be done by the claimants.
The claimants were merely to establish
their
case
on
the
touchstone
of
preponderance of probability. The standard
of proof beyond reasonable doubt could not
have been applied.

22.
After
considering
the
submissions made by both the parties, I
find that PW 7 Sohan Lal eyewitness to the
occurrence has specifically stated in his
affidavit Ext. PW 7/A tendered in his
evidence that on 15-12-2011 at about 20.30
p.m. he along with PHG Ajit Singh was
present near Sanjha Chulha Dhaba on the
National Highway leading to Jammu. All
the traffic of road was diverted on the
eastern side of the road on account of
closure of road on western side due to
construction work. In the meantime a
Maruti car bearing No. HR 02 K 0448
came from Jammu side and struck against
the back of Gas Tanker as the driver of the
car could not spot the parked tanker due to
the flashlights of the oncoming traffic from
front side. Then they rushed towards the
spot of accident and noticed that the said
tanker was standing parked in the middle of
the road without any indicators or parking
lights.

23. The statement of this witness
clearly establishes that this was the sole
negligence on the part of the driver of the
Gas Tanker especially when the accident
was caused on 15-12-2011 that too at
about 10.30 p.m. which is generally time of
pitch darkness. In this way, the driver of
the car cannot be held in any way negligent
in this accident. Moreover, as per Rule 15
of the Road Regulations, 1989 no vehicle is
to be parked on busy road.

24. The arguments of the learned
counsel for the respondent that PW 7
Sohan Lal has stated in his crossexamination that there was no fog at that
time and there were lights on the Dhaba
and the truck was visible to him due to light
of Dhaba and he was standing at the
distance of 70 ft from the truck being road
between him and the truck and he noticed
at the car when he heard voice/sound
caused by the accident so Respondent 1 is
not at all negligent in this accident but
these submissions will not make the car
driver to be in any way negligent and
cannot give clean chit to the driver of the
Gas Tanker because there is a difference
between the visibility of a standing vehicle
from a place where the person is standing
and by a person who is coming driving the
vehicle because due to flashlights of
vehicles coming from front side the vehicle
coming from opposite side cannot generally
spot the standing vehicle in the road that
too in night-time when there is neither any
indicator or parking lights nor blinking
lights nor any other indication given on the
back of the stationed vehicle, therefore, the
driver of the car cannot be held to be in
any way negligent rather it is the sole
negligence on the part of the driver of the
offending Gas Tanker as held inGinni Devi
case [Ginni Devi v. Union of India, 2007
SCC OnLine P&H 126 : 2008 ACJ 1572]
, Mohan Lal case [New India Assurance
Co. Ltd. v. Mohan Lal, 2006 SCC OnLine
All 459 : (2007) 1 ACC 785 (All)] . It is not
the case of the respondent that the parking
lights of the standing truck were on or
there were any other indication on the
backside of the vehicle standing on the
road to enable the coming vehicle to see
the standing truck. The other arguments of
the learned counsel for Respondent 3 that
the road was sufficient wide road and that
the car driver could have avoided the
854 INDIAN LAW REPORTS ALLAHABAD SERIES
accident, so the driver of the car was
himself negligent in causing the accident
cannot be accepted when it has already
been held that the accident has been caused
due to sole negligence of the driver of the
offending stationed truck in the busy road.
The
proposition
of
law
laid
down
in Harbans
Kaur
case [New
India
Assurance Co. Ltd. v. Harbans Kaur, 2010
SCC OnLine P&H 7441 : (2010) 4 PLR
422
(P&H)]
and T.M.
Chayapathi
case [New India Assurance Co. Ltd. v. T.M.
Chayapathi, 2004 SCC OnLine AP 484 :
(2005) 4 ACC 61] is not disputed at all but
these authorities are not helpful to the
respondents being not applicable on the
facts and circumstances of the present case.
Likewise,
non-examination
of
minor
children of the age of 14 and 9 years who
lost their father and mother in the accident
cannot be held to be in any way detrimental
to the case of the claimants when
eyewitness to the occurrence has proved
the accident having been caused by the
negligence of Respondent 1 driver of the
offending vehicle.

25. Moreover,
in
Girdhari
Lal v. Radhey
Shyam [Girdhari
Lal v. Radhey Shyam, 1993 SCC OnLine
P&H 194 : PLR (1993) 104 P&H 109]
, Sudama
Devi v. Kewal
Ram [Sudama
Devi v.Kewal Ram, 2007 SCC OnLine
P&H 1208 : PLR (2008) 149 P&H
444] andPazhaniammal case [New India
Assurance Co. Ltd. v. Pazhaniammal, 2011
SCC OnLine Ker 1881 : 2012 ACJ
1370] our own Hon'ble High Court has
held that ''it is, prima facie safe to conclude
in claim cases that the accident has
occurred on account of rash or negligent
driving of the driver, if the driver is facing
the criminal trial on account of rash or
negligent driving.'

26. Moreover,
Respondent
1
driver of the offending vehicle has not
appeared in the witness box to deny the
accident having been caused by him,
therefore, I am inclined to draw an adverse
inference against Respondent 1. In this
context, I draw support from a judgment of
the Hon'ble Punjab & Haryana High Court
reported
asBhagwani
Devi v. Krishan
Kumar Saini[Bhagwani Devi v. Krishan
Kumar Saini, 1986 SCC OnLine P&H 274
: 1986 ACJ 331] . Moreover, Respondent 1
has also not filed any complaint to higher
authorities about his false implication in
the criminal case so it cannot be accepted
that Respondent 1 has been falsely
implicated in this case.

27. In view of above discussion, it
is held that the claimants have proved that
the
accident
has
been
caused
by
Respondent 1 by parking the offending
vehicle bearing No. HR 02 AF 8590 in the
middle of the road in a negligent manner
wherein Vinod Saini and Smt Mamta Saini
have died and claimants Archit Saini and
Gauri Saini have received injuries on their
person. Shri Vinod Saini, deceased who
was driving ill-fated car on that day cannot
be held to be negligent in any way.
Accordingly, this issue is decided in favour
of claimants."

(emphasis supplied)"

16. It is submitted that by Sri Rahul
Sahai, learned counsel for the respondent
assisted by Sri Aditya Singh Parihar,
learned Advocate that the deceased was
driving the vehicle in middle of the road
and did not give side to the bus coming
from behind and the so called eye-witness
could not be believed and, thence, finding
of negligence requires to be interfered with.
5 All. Smt. Geeta Yadav & Ors. Vs. Prem Roadways Registered, Punjab & Anr.
855

17. The F.I.R. categorically goes to
show that the bus dashed the deceased from
behind who was going ahead of bus on his
Motorcycle
which
resulted
into
instantaneous death of the deceased. On
perusal of the F.I.R., charge-sheet and the
site plan, we do not find any perversity in
the finding of the Tribunal as far as
negligence is concerned.

18. We are also supported in our
finding by the decisions in (a) Smt.
Kaushnuma Begum And Ors vs. The
New India Assurance Co. Ltd. (2001) 2
SCC 9., (b) Vimla Devi and others Vs.
National Insurance Company Limited
and others, 2019 (133) ALR 768; (c)
Anita Sharma v. New India Assurance
Co. Ltd. (2021) 1 SCC 171 and on the
decision of Madras High Court. The
decision in Madras High Court in Reliance
General
Insurance
Co.
Ltd.
Vs.
Subbulakshmi and Others, passed in
C.MA. No. 1482 of 2017 [C.M.P. No.
7919 of 2017. (CMA Sr. No. 76893 of
2016)] and the decision referred in the said
case
namely
Puspabai
Purshottam
Udeshi Vs. Ranjit Ginning and Pressing
Co., 1977ACJ 343 (SC).

19. It is a fact that charge-sheet was
filed against the driver of the bus and
neither the driver nor the owner of bus has
stepped into the witness box so as to prove
that the deceased had contributed to the
accident having taken place. The finding of
fact by Tribunal on the basis of evidence
goes to show that the bus dashed the
scooter from behind, dragged the scooterist
and then crossed and went on otherside of
railing.

20. As per road safety it is obligatory
on a vehicle coming from behind to be
more careful and cautious. Here the driver
of bus has not followed this basic rule.
These cumulative facts will not permit us to
take a different view then that taken by the
Tribunal as far as finding of negligence is
concerned.

21. In view of the above, the cross
objection
of
respondent-Insurance
Company cannot be accepted and cannot
succeed. We are also supported in our view
on the decisions in (a) Renu Rani
Shrivastava Vs. New India Assurance
Co. Ltd., 2019 (0) AIJEL-SC 65364, (b)
Jumani Begam Vs. Ram Narayan, 2019
(0) AIJEL-SC 65571, (c) Nishan Singh
Vs. Oriental Insurance Company Ltd.,
2018 (0) AIJEL-SC 62197.

Compensation :

22. This takes us to the issue of
quantum of compensation awarded. The
deceased, according to learned counsel for
the appellant, was serving in Indian Army
as Havildar and was earning Rs.27,000/-
per month. The Tribunal has disbelieved
the salary certificate Ex. 39 Ga issued by
Captain,
Record
Officer,
Topkhana
Abhilekh, Artillery Records, Nasik Road
Camp holding that the said document has
not been proved by the claimants by
examining the Issuing Authority of the
salary slip. This finding of the Tribunal is
bad as the Tribunal under Section 169 of
the Motor Vehicles Act, 1988 should have
called the authority who has issued salary
certificate to testify the authenticity of the
said document. Section 169 of the Act,
1988 reads as under :

"169. Procedure and powers of
Claims Tribunals.--

(1) In holding any inquiry under
section 168, the Claims Tribunal may,
856 INDIAN LAW REPORTS ALLAHABAD SERIES
subject to any rules that may be made in
this behalf, follow such summary procedure
as it thinks fit.

(2) The Claims Tribunal shall
have all the powers of a Civil Court for the
purpose of taking evidence on oath and of
enforcing the attendance of witnesses and
of compelling the discovery and production
of documents and material objects and for
such other purposes as may be prescribed;
and the Claims Tribunal shall be deemed to
be a Civil Court for all the purposes of
section 195 and Chapter XXVI of the Code
of Criminal Procedure, 1973 (2 of 1974).

(3) Subject to any rules that may
be made in this behalf, the Claims Tribunal
may, for the purpose of adjudicating upon
any claim for compensation, choose one or
more
persons
possessing
special
knowledge of and matter relevant to the
inquiry to assist it in holding the inquiry."

23. Recently this Court in F.A.F.O.
No. 2019 of 2021 (Akhilesh Kumar
Anand Vs. Rahul Mishra and Another),
vide order dated 18.4.2022 has held as
follows:-

"11. The Apex court decision in
Anita Sharma Vs. New India Assurance
Company Ltd, 2021 (1) SCC 171 and
Vimla Devi and others Vs. National
Insurance Company Limited and another,
(2019) 2 SCC 186, has held that strict
proof of all facts is not necessary to decide
the motor accident claim petition. The
Tribunal should take the holistic view of the
matter and the claimant has to establish
his/her
case
on
the
touchstone
of
preponderance of probability.

12.
The
Division
Bench
of
Madhya Pradesh High Court in Reliance
General
Insurance
Co.
Ltd.
Vs.
Subbulakhmi and others passed in CMA
No. 1482 of 2017 has also expressed the
same view with regard to the standard of
proof.

13. In Bimla Devi and others Vs.
Himanchal Road Transport Corporation
and others 2009 (2013) SCC 530, also the
Apex Court held that the claimants were
merely to establish their case on the
touchstone
of
preponderance
of
probability. The standard of proof beyond
reasonable doubt could not have been
applied.

14.
Learned
Tribunal
has
discarded the documentary evidence, filed
by the appellant with regard to the salary
of the deceased. Learned Tribunal could
have invoked the powers under Section 169
of the Motor Vehicle Act, 1988, which gives
claims Tribunal all the powers of Civil
Courts for the purpose of taking evidence,
and enforcing the attendance of the
witnesses and compel the discovery and
proof of documents and material objects. If
the learned Tribunal wanted to get the
salary certificate and payment register to
be proved, it could have suo moto
summoned the concerned employee of the
school with original record because it is
the duty of the Tribunal to award 'just
compensation'."

24. The Tribunal, on one hand, has
recorded that the Department where the
deceased was serving, there must be
provision of pension and compassionate
appointment and on the other hand has not
believed the document issued by the said
department. This is nothing else but
perversity has percolated in the finding of
the Tribunal. The word 'perversity' is too
mild for the reasoning given by the
5 All. Smt. Geeta Yadav & Ors. Vs. Prem Roadways Registered, Punjab & Anr.
857
Tribunal as far as income of deceased is
concerned.

25. Finding of the Tribunal is
perverse as Tribunal itself has held that the
deceased was on the post of Havildar in
Indian Army and was earning Rs.27,000/-
per month. The documentary evidence is at
Exhibit 49 and his PAN Card is at Exhibit
40 Ga/11. He was also having a vehicle, he
was also having driving license which was
produced as Exhibit 40 Ga/10. The xerox
copies were believed for the purpose of
considering the age of the deceased to be
30 years and 7 months. The medico legal
documents, unfortunately, was discussed
by the Tribunal and the Tribunal has
considered that as none has objected to the
same, the Tribunal has considered the
same.

26. The Tribunal has not believed the
salary certificate as the same was not orally
proved by the Officer who had issued the
same despite the fact that wife of the
deceased (now widow) had opined that the
salary was credited to his husband in his
bank account. Learned Tribunal has held
that she was not present when the salary
certificate which was produced was signed
and, therefore, it has not believed the same.
It was stated by her that she did not know
whether her husband was an Income Tax
Payee or not. The Tribunal further holds
that there is family pension being paid to
her. The claim petition was under Section
166 and not Section 163A of the Act, 1988.
Despite that, the Tribunal has considered
the income of the deceased to be Rs.3,000/-
per month which was that of a labourer.
The Tribunal did not grant any amount
under the head of future loss of income.
The Tribunal did not discuss why it has
considered multiplier of 15 instead of 17
and did not even discuss why it has not
granted any amount under the head of
future loss of income. The judgment itself
is vulnerable. The decision referred herein
before would permit us to interfere with the
decision of the Tribunal for the reasons that
(a) no proper reasons have been given
showing why income of deceased has been
considered to be that of a labourer, (b) why
has the salary certificate been rejected
without cogent reasons, (c) no reasons have
been given for non grant of future loss of
income despite the decision of Sarla
Verma (Supra) & (d) non consideration of
judgments in Anil Khoshla v. Mahesh
Kumar and others, 2011 (1) T.A.C. 250
(DEL) and Smt. Mithilesh Mishra v.
Ajay Kumar, 2012 (3) T.A.C. 45 (All.).
These findings cannot stand reasoning.
These surmises shows the over zeal of the
Tribunal to grant what can be said to be just
compensation.

27. Therefore, we consider the
income of the deceased to be Rs.27,000/-
per month. Out of which, the only
deduction permissible would be Income
Tax i.e. Rs.2,000/- per month. To which, as
the deceased was below 40 years, 50% be
added towards future loss of income in
view of the decision in National Insurance
Co. Ltd. Vs. Pranay Sethi and others,
2017 LawSuit (SC) 1093. The later
judgments could have been applied but it is
not proved as to what would have been
actual income in future of deceased. Thus,
thumb rule of addition of future prospects
is applied. The deceased being in the age
bracket of 31-35 years of age, the
multiplier applicable would be 16 in view
of the decision in Sarla Verma and others
Vs. Delhi Transport Corporation and
Another,
2009
LawSuit
(SC).
The
deduction towards personal expenses of the
deceased would be 1/3rd as he had three
persons dependent on the deceased. The
858 INDIAN LAW REPORTS ALLAHABAD SERIES
family would be entitled to Rs.70,000/-
plus 10% rise in every three year in view of
the decision in Pranay Sethi (Supra), we
round up this figure to Rs.1,00,000/-.

28. Hence, the total compensation
payable to the appellant is computed herein
below:

i. Monthly Income: Rs.25,000/-

ii. Percentage towards future
prospects : 50% namely Rs.12,500/-

iii. Total income : Rs.25,000 +
12,500 = Rs.37,500/-

iv. Income after deduction of
1/3rd
towards
personal
expenses
:
Rs.25,000/-

v. Annual income : Rs.25,000 x
12 = Rs.3,00,000/-

vi. Multiplier applicable : 16

vii.
Loss
of
dependency:
Rs.3,00,000 x 16 = Rs.48,00,000/-

viii. Amount under non pecuniary
heads : Rs.1,00,000/-

ix.
Total
compensation
:
Rs.49,00,000/-

29. 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."

30. In view of the above, the appeal is
allowed.
Cross
objection
filed
by
respondent-Insurance
Company
is
dismissed. Award and order passed by the
Tribunal is modified to the aforesaid effect.
The Insurance Company shall deposit the
amount within 12 weeks from today with
interest as awarded herein above. The
amount already deposited be deducted from
the amount to be deposited.

31. 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 V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of
investment of amount be passed by
Tribunal..

32. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguri P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, 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
5 All. Suraj Mukhi & Ors. Vs.