# Smt. Indrawati v. Sarvesh Soni & Ors

- **Citation:** (2021) 5 ILRA 42
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-23
- **Case number:** FAFO No. 337 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-indrawati-v-sarvesh-soni-ors-46976
- **Pages:** 5

## Headnote

A. Civil Law - Motor Accident Claims -
Quantum of compensation - Uttar Pradesh
Motor Vehicles (Eleventh Amendment)
Rules, 2011.

According to the appellant, the Tribunal has
taken into consideration a sum of Rs. 3000/- per
month to be the income of the injured-claimant,
which is unjust and improper, at least it could
not be less than Rs. 16,000/- per month. It is
submitted that no amount under the head of
future loss of her career has been determined
and granted. Amount under the non-pecuniary
heads and the interest awarded are also on the
5 All. Smt. Indrawati Vs. Sarvesh Soni & Ors.
43
lower side and requires to be enhanced in view
of authoritative pronouncements. (Para 5)

After considering the facts and circumstances,
High Court has awarded her an income of Rs.
3000/- per month, to which as the injured was
above 50 years at the time of accident, 40% of
the income has been added as future loss of
income to the injured. The loss of earning
capacity to the extent of 25% as considered by
the Tribunal has been maintained. (Para 7)

Further, the amount granted by the Tribunal for
medical expenses has been enhanced to Rs.
3,50,000/- and Rs. 50,000/- for future medicine,
Rs. 10,000/- for special diet and Rs. 10,000/- for
attendant charges have been granted. As far as
the amount under pain, shock and sufferings
was concerned, looking to the fact that she was
admitted in hospital and had undergone
surgery, the amount has been enhanced to Rs.
25,000/-. The rate of interest has been decided
to be 7.5%. (Para 8, 10)

Appeal partly allowed. (E-3)

Precedent followed:

## Text

42 INDIAN LAW REPORTS ALLAHABAD SERIES
have taught him an appropriate lesson to
refrain from such overt acts.

60. In the aforesaid case the Supreme
Court had, for the reasons presented by
defence side, had mitigated the punishment
for rape of a girl below 7 years to 10 years'
imprisonment. But in said case appellant
was in incarceration for long time. In
present case the circumstances presented
before the Sessions Judge, at the time of
hearing under section 235(2) CrPC on point
of quantum of sentence, was more
dismaying. Appellant was aged about 25
years and was not too young.

61. While we see no reason to differ
with the findings recorded by the trial court
regarding the charged offence, we do see
some substance in the argument raised on
behalf of the appellants that keeping in
view the prosecution evidence, the above
mentioned aggravating and mitigating
attendant circumstances, the age of the
accused and the fact that he has already
been in jail for a considerable period, the
Court should take a balanced view as far as
the quantum of sentence is concerned. The
offences having been proved against the
accused and keeping in view the attending
circumstances, we are of the considered
view that ends of justice would be met, if
the punishment awarded to the appellant is
reduced. So, it appears appropriate that, in
present case the sentence should not exceed
more than 14 years' imprisonment and
lesser fine.

62. In view of above facts and
discussion, the order of conviction u/s 376
IPC imposed on the appellant is hereby
confirmed.
But
the
sentence
of
imprisonment for life is modified to
imprisonment of 14 years and fine of Rs.
50,000/- to Rs. 30,000/- out of which 80
percent amount is to be given to the victim.
With this modification of sentence, the
appeal stands disposed off.

63. Copy of this judgment alongwith
original
record
of
Court
below
be
transmitted to the Court concerned for
necessary compliance. A compliance report
be sent to this Court within one month.
Office is directed to keep the compliance
report on record.
----------
(2021)05ILR A42
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2021

BEFORE

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

FAFO No. 337 of 2021

Smt. Indrawati ...Appellant
Versus
Sarvesh Soni & Ors. ...Respondents

Counsel for the Appellant:
Sri Shiv Narayan Pandey

Counsel for the Respondents:
Sri Sushil Kumar Mehrotra

A. Civil Law - Motor Accident Claims -
Quantum of compensation - Uttar Pradesh
Motor Vehicles (Eleventh Amendment)
Rules, 2011.

According to the appellant, the Tribunal has
taken into consideration a sum of Rs. 3000/- per
month to be the income of the injured-claimant,
which is unjust and improper, at least it could
not be less than Rs. 16,000/- per month. It is
submitted that no amount under the head of
future loss of her career has been determined
and granted. Amount under the non-pecuniary
heads and the interest awarded are also on the
5 All. Smt. Indrawati Vs. Sarvesh Soni & Ors.
43
lower side and requires to be enhanced in view
of authoritative pronouncements. (Para 5)

After considering the facts and circumstances,
High Court has awarded her an income of Rs.
3000/- per month, to which as the injured was
above 50 years at the time of accident, 40% of
the income has been added as future loss of
income to the injured. The loss of earning
capacity to the extent of 25% as considered by
the Tribunal has been maintained. (Para 7)

Further, the amount granted by the Tribunal for
medical expenses has been enhanced to Rs.
3,50,000/- and Rs. 50,000/- for future medicine,
Rs. 10,000/- for special diet and Rs. 10,000/- for
attendant charges have been granted. As far as
the amount under pain, shock and sufferings
was concerned, looking to the fact that she was
admitted in hospital and had undergone
surgery, the amount has been enhanced to Rs.
25,000/-. The rate of interest has been decided
to be 7.5%. (Para 8, 10)

Appeal partly allowed. (E-3)

Precedent followed:

1. Sanjay Kumar Vs Ashok Kumar & anr. (2014)
5 SCC 330 (Para 5)

2. Syed Sadiq & ors. Vs Divisional Manager,
United India Insurance Company Ltd., (2014) 2
SCC 735 (Para 5)

3. Mekala Vs M. Malathi & anr. (2014) 11 SCC
178 (Para 5)

4. Hari Babu Vs Amrit Lal & ors., 2019 (2) T.A.C.
718 (All.) (Para 5)

5. Raj Kumar Vs Ajay Kumar & anr., (2011) 1
SCC 343 (Para 6)

6. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (S.C.) (Para 10)

Present appeal challenges award dated
09.04.2019, passed by Motor Accident
Claims Tribunal/Additional District Judge
Fast Track Court (New), Chiktrakoot.
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. &
Hon'ble Ajit Singh, J.)

1. Heard Sri Shiv Narayan Pandey,
learned counsel for the appellant and Sri
S.K. Mehrotra, learned counsel for the
Insurance Company namely, TATA AIG
General Insurance Company Ltd.

2. This appeal, at the behest of the
injured-claimant challenges the award
dated 9.4.2019 passed by the Motor
Accident
Claims
Tribunal/Additional
District Judge Fast Track Court (New),
Chitrakoot (hereinafter referred to as
'Tribunal')
in
Claim
Petition
No.
57/70/2018
awarding
a
sum
of
Rs.7,14,852/- as compensation with an
interest at the rate of 7%.

3. The accident is not in dispute. The
injured was traveling in a vehicle is also
not in dispute. The issue of negligence
decided by the Tribunal is not in dispute.
The respondent-Insurance Company has
not challenged the liability imposed on
them. The only issue which is to be decided
is the quantum of compensation awarded.

4. The vehicle was insured with
TATA AIG General Insurance on the date
of the accident and is not in dispute as
TATA AIG General Insurance has accepted
the judgement and award passed in Motor
Accident Claim Petition no. 57/70/2016
decided
by
Motor
Accident
Claim
Tribunal/Addl. District Judge, FTC (New),
Chitrakoot.

5. The only argument raised by the
learned counsel for appellant in support of
enhancement of the claim amount before
this Court is that the appellant has sustained
44 INDIAN LAW REPORTS ALLAHABAD SERIES
90 per cent disability as a result of the
accident and the Tribunal has not given due
weight to this aspect of the matter and has
also not awarded the compensation amount
under the head of suffering, special diet and
more particularly under the head of loss of
her income due to the accident and further
the Tribunal has also not granted any
amount under the head of future economic
loss to be caused to the complainant
appellant due to 90 per cent disability while
calculating the quantum of compensation
admissible to her.

6. The learned counsel for the
appellant has contended that the appellant
was running a Canteen in 'Mandi Parisar'
and was earning a sum of Rs. 16000/- per
month from the said occupation and it has
not been taken into consideration by the
Tribunal. It is further submitted that though
there was an additional income of Rs.
81500/- but it was discarded by the
Tribunal.

4. The injured is now 57 years of age
and she was 54 years of age when the
accident occurred in the year 2017. She
was running a canteen in 'Mandi Parisar'.
She sustained 90% disability. She was
admitted to District Hospital, thereafter she
was referred to Alka Hospital, Allahabad
w.e.f. 3.12.2017 to 14.1.2018. She had to
undergo surgery on 4.12.2017 in which her
left leg was amputated, as a result of which
she became handicapped with 90 per cent
disability.

5. It is submitted by learned counsel
for the appellant that the Tribunal has taken
into consideration a sum of Rs.3000/- per
month to be the the income of the injuredclaimant, which is unjust and improper, at
least it could not be less than Rs.16,000/-
per month. It is submitted that no amount
under the head of future loss of her career
has been determined and granted. It is also
submitted that the amount under the nonpecuniary heads and the interest awarded
are also on the lower side and requires to be
enhanced in view of the following
authoritative pronouncements:

(i) Sanjay Kumar Vs. Ashok
Kumar and another, (2014) 5 SCC 330;

(ii) Syed Sadiq and others Vs.
Divisional Manager, United India

Insurance
Company
Limited, (2014) 2 SCC 735;

(iii) Mekala Vs. M. Malathi and
another, (2014) 11 SCC 178; and

(iv)
Uttar
Pradesh
Motor
Vehicles (Eleventh Amendment) Rules,

2011.

(v) Hari Babu Vs. Amrit Lal
and others, 2019 (2) T.A.C. 718 (All.).

6. As against this, it is submitted by
the learned counsel for the respondent that
learned Motor Accident Claim Tribunal has
rightly considered the income of the
claimant appellant to be Rs. 3000/- as there
is no documentary evidence, which may
prove the income to be of Rs. 16,000/- per
month, was produced before the Tribunal
and it is also submitted that the award can
not be said to be incorrect rather it is just
and proper and is in consonance with the
decision of the Apex Court coupled with
the fact in absence of any proof of income
nothing more than the compensation
amount granted by the impugned award the
claimant was entitled to. The Tribunal has
granted
what
is
known
as
a
just
compensation. The compensation awarded
by the Tribunal is just and proper and does
not call for any interference by this Court
as the income which is not proved cannot
be
taken
into
consideration
while
calculating the compensation.
5 All. Smt. Indrawati Vs. Sarvesh Soni & Ors.
45

7. After hearing the counsel for the
parties and perusing the judgment and
order impugned, this Court feels that her
income can be considered to be Rs.6,000/-
per month, to which as the injured was
above 50 years at the time of accident, 40%
of the income would have to be added as
future loss of income to the injured in view
of the decision of the Apex Court in Raj
Kumar Vs. Ajay Kumar and another,
reported in (2011) 1 SCC 343 and Syed
Sadiq and others (Supra). The loss of
earning capacity to the extent of 25% as
considered by the Tribunal is maintained.

8. Further, the amount granted by the
Tribunal for medical expenses is enhanced
to Rs.3,50,000/- and Rs.50,000/- for future
medicine, Rs.10,000/- for special diet and
Rs.10,000/- for attendant charges are
granted. As far as the amount under pain,
shock and sufferings is concerned, looking
to the fact that she has admitted in hospital
and has undergone surgery, the amount is
enhanced to Rs.25,000/-.

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

i. Income : Rs.3,000/-

ii. Percentage towards future
prospects : 40% namely Rs.1200/-

iii. Total income : Rs. 3000 +
1200 = Rs.4200/-

iv. Loss of earning capacity :
25% namely Rs.1050/-

v. Annual loss : Rs.1050 x 12 =
Rs.12,600/-

vi. Multiplier applicable : 11

vii. Total loss : Rs.12,600 x 11 =
Rs.1,38,600/-

viii.
Medical
expenses
:
Rs.3,50,000/-

ix. Future medicine : Rs.50,000/-

x. Special diet : Rs.10,000/-

xi. Attendant charges : Rs.
10,000/-

xii. Amount under pain, shock
and suffering : Rs.25,000/-

xiii.
Total
compensation
:
7,14,852/-

10. 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."
46 INDIAN LAW REPORTS ALLAHABAD SERIES

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

12. 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 respondent-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 petitioner till the amount is deposited.
The amount already deposited be deducted
from the amount to be deposited.
----------
(2021)05ILR A46
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2021

BEFORE

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

FAFO (D) No. 1163 of 2011

Smt. Shaheen & Ors. ...Appellants
Versus
Manoj Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri S.D. Ojha

Counsel for the Respondents:
Sri Ashish Kumar Srivastava

(A) Civil Law - Motor Vehicles Act, 1988 -
Section163A -Compensation enhancement
- Special provisions as to payment of
compensation on structured formula basis
- contributory negligence - A person who
either contributes or is author of the
accident
would
be
liable
for
his
contribution to the accident having taken
place - future loss of income should be
granted (National Insurance Company
Limited Vs. Pranay Sethi and others, 2017
0 Supreme (SC) 1050) .(Para - 10,13)
Dispute relates only to computation and
negligence of the deceased as decided by the
Tribunal - claimants, challenges the judgment
and award passed by Motor Accident Claims
Tribunal awarding a sum of Rs.92,375/- with
interest at the rate of 6%.(Para - 2)

HELD:- Total compensation payable to the
appellants is Rs.10,07,200 /- . Out of the
awarded amount deceased liable to the tune of
50% of negligence . Award and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The respondent-Insurance
Company shall deposit the additional amount
within a period of 12 weeks from today without
deducting TDS . The amount already deposited
be deducted from the amount to be deposited.
(Para - 15,17)

Appeal partly allowed. (E-6)

List of Cases cited:-

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

2. National Insurance Co. Ltd. Vs. Pranay Sethi
& ors., 2017 0 Supreme (SC) 1050

3. National Insurance Co. Ltd. Vs. Pranay Sethi
& ors., 2017 0 Supreme (SC) 1050

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

5. A.V. Padma Vs Venugopal, 2012 (1) GLH (SC), 442

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

1. Heard Sri S.D. Ojha counsel for the
claimants-appellants and Sri Ashish Kumar
Srivastava for the Insurance Company.
None for the owner, though served.

2. Though this is a defective appeal,
we decided it finally as the dispute relates
only to computation and negligence of the
deceased as decided by the Tribunal.