# Smt. Islamunnisa v. Smt. Manni Devi & Ors

- **Citation:** (2021) 10 ILRA 286
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-14
- **Case number:** FAFO No. 3203 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-islamunnisa-v-smt-manni-devi-ors-46275
- **Pages:** 10

## Headnote

Sri Sushil Kumar Mehrotra

(A) Quantum of Compensation - House rent
Allowance received by deceased could not have
10 All. Smt. Islamunnisa Vs. Smt. Manni Devi & Ors.
287
been deducted by the tribunal in calculating
compensation. (Para 15)

Appeal Partly Allowed. (E-10)

List of Cases cited:

## Text

286 INDIAN LAW REPORTS ALLAHABAD SERIES
AIR 2021 SC 3301, we restrain the interest
of these three years to 4 %, rest it will
remain 6% enhanced to 7% from the date
of filing of the petition till the judgment.

16. In view of the above, the appeal is
partly allowed. Oral cross objections are
allowed and compensation is recalculated.
Judgment and award 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% 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. The Insurance Company will
deposit the entire amount can have their
right to recover the amount from owner and
the Insurance Company of the other
vehicle. As far as deceased is concerned, it
is a case of composite negligence, hence,
the amount cannot be deducted from the
compensation awarded to the claimants
who are the heirs of a non tort-feasor.

17. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 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 claimant 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.

18. Record be sent back to tribunal
forthwith.

19. This Court is thankful to both the
learned Advocates for getting this matter
disposed of during this pandemic.
----------
(2021)10ILR A286
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 14.09.2021

BEFORE

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

FAFO No. 3203 of 2018
with
FAFO No. 3254 of 2018

Smt. Islamunnisa ...Appellant
Versus
Smt. Manni Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Mohd.Asim Zulfiquar

Counsel for the Respondents:
Sri Sushil Kumar Mehrotra

(A) Quantum of Compensation - House rent
Allowance received by deceased could not have
10 All. Smt. Islamunnisa Vs. Smt. Manni Devi & Ors.
287
been deducted by the tribunal in calculating
compensation. (Para 15)

Appeal Partly Allowed. (E-10)

List of Cases cited:

1. Khenyei Vs New India Assurance Co. Ltd. &
ors. 2015 LawSuit (SC) 469

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

3. Meera Devi & anr. Vs HRTC & ors. 2014 (2)
T.A.C. 1 (S.C.)

4. National Insurance Co. Ltd. Vs Jai Deo Singh
2010 (80) ALR 52

5. Oriental Insurance Co. Ltd. Through Branch
Manager Vs Smt. Rehana Begham & ors. 2009
(2) TAC 227 (All.)

6. Rajendra Singh & ors. Vs National Insurance
Co. Ltd. 2020 (3) TAC 25 (SC)

7. Sunil Sharma & ors. Vs Bachitar Singh & ors.
(2011) 11 SC 425

8. Vimal Kanwar & ors. Vs Kishore Dan & ors.
2013 (3) T.A.C. 6 (S.C.) (followed)

9. Sarla Verma Vs Delhi Transport Corp. (2009)
6 SCC 121 (followed)

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

11. A.V. Padma Vs Venugopal 2012 (1) GLH
(SC) 442 (followed)

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

1. Heard Mohd Asim Zulfiquar,
learned counsel for the appellant, Sri Sushil
Kumar Mehrotra, learned counsel for the
respondent in both the appeals.

2. Both these appeals are preferred by
legal heirs of the deceased which challenge
the judgment and award dated 9.5.2018
passed
by
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.2, Kaushambi (hereinafter referred to as
'Tribunal') in M.A.C.P. No.57 of 2014
awarding a sum of Rs.50,29,968/- as
compensation with interest at the rate of
7% for the death of Dr. Mohd. Asif, who is
son of the claimant-appellant and the award
dated 9.5.2018 passed by the Tribunal in
M.A.C.P. No. 56 of 2014 awarding a sum
of Rs.3,70,200/- as compensation with
interest at the rate of 7% for the death of
one Smt. Kaniza Begum, who is the
daughter-in-law of claimant-appellant and
wife of the deceased Dr. Mohd Asif. The
appeals challenge the quantum and finding
of negligence returned by the Tribunal
holding the deceased doctor also a tort
feasor.

3. Facts as per the claim petition are
that on 10.8.2013 at about 12.00 noon
when the deceased reached near Kakora,
Police
Station
Kokhraj,
District
Kaushambi, one Mahendra Yadav, driver
of Vehicle Trailer No. R J 14 J F 4210
rashly and negligently drove his vehicle
and
dashed
the
Figo
Car
(bearing
Registration No. UP 70 BZ 6881) of
claimant's son who along with his wife
Kaniza Begum @ Zeenat Mumtaz was
coming from Locality G.T.B. Nagar,
Kareily City, Allahabad to his home
Kajiyana Kara, Police Station Saini,
District Kaushambi. On account of the
accident, both of them, namely, Dr. Mohd.
Asif and Kaneejz Begum succumbed to
their injuries on the spot.

4. The deceased Dr. Mohd. Asif was a
resident doctor in Guru Teg Bahadur
Hospital and his income was Rs.41070/-
288 INDIAN LAW REPORTS ALLAHABAD SERIES
+Rs.7875/-=Rs. 48,945/-. The accident is
not
in
dispute
which
occurred
on
10.8.2013
between
two
vehicles-one
driven by Dr. Mohd. Asif which proved to
be fatal to him and his wife who were 29
and 27 years of age respectively. Mother of
Mohd. Asif and mother-in-law of Kaniza
Begum @ Zeenat Mumtaz had filed the
claim petitions.

5. The issue to be decided is who is to
be considered to be legal representative. No
one except class two heir, that is, motherin-law has come before this Court and her
claim has been accepted by the Tribunal.
The Insurance Company or the owner of
the other vehicle has not challenged the
compensation awarded by Tribunal.

6. The counsel for appellant has
contended that deduction of the amount,
which was to be paid to the mother-in-law
could not have been deducted as the
deceased wife was not a tort feasor. It is
submitted that even if this court accepts the
findings of the Tribunal that deceased, who
was driving the car was co-author of
accident
and
negligent,
the
amount
awardable to legal heir could not be
deducted, this finding is error apparent on
the face of the record, in view of the
Judgment of Apex Court in Khenyei Vs.
New India Assurance Company Limited
& Others, 2015 LawSuit (SC) 469 and
that proportionate amount could not have
been deducted from the amount admissible
to the claimant in the said MACT.

Negligence and Compensation

7. The issue of negligence will have
to be considered from the facts as adduced
as one of the deceased was a non tort feasor
and qua the legal heir it would be case of
composite negligence and, hence, whether
the Tribunal was right in deducting
compensation
admissible
to
heir/legal
representative of non tort feasor has to be
considered. The Apex Court in Khenyei
(supra) has held as under:-

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

14. There is a difference between
contributory and composite negligence. In
the case of contributory negligence, a
person who has himself contributed to the
extent cannot claim compensation for the
injuries sustained by him in the accident to
the extent of his own negligence;whereas in
the case of composite negligence, a person
who has suffered has not contributed to the
accident but the outcome of combination of
negligence of two or more other persons.
10 All. Smt. Islamunnisa Vs. Smt. Manni Devi & Ors.
289
This Court in T.O. Anthony v. Karvarnan
& Ors. [2008 (3) SCC 748] has held that in
case of contributory negligence, injured
need
not
establish
the
extent
of
responsibility
of
each
wrong
doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong doer separately. It is only in the case
of contributory negligence that the injured
himself has contributed by his negligence
in the accident. Extent of his negligence is
required to be determined as damages
recoverable by him in respect of the
injuries have to be reduced in proportion to
his contributory negligence. The relevant
portion is extracted hereunder :

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

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

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

What emerges from the aforesaid
discussion is as follows :

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

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

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

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

[Emphasis added]

8. This Court in these appeal has to
decide the issue of contributory negligence
also as the Tribunal has held one of the
deceased to be co-author of the accident
having taken place. As far as the issue of
negligence
is
concerned,
the
term
negligence means failure to exercise care
towards others which a reasonable and
prudent person would in a circumstance or
taking action which such a reasonable
person would not. Negligence can be both
intentional or accidental which is normally
accidental. More particularly, it connotes
reckless driving and the injured must
always prove that the either side is
negligent. If the injury rather death is
caused by something owned or controlled
by the negligent party then he is directly
liable otherwise the principle of "res ipsa
loquitur" meaning thereby "the things
speak for itself" would apply.

9. The principle of negligence has
been discussed time and again. A person
10 All. Smt. Islamunnisa Vs. Smt. Manni Devi & Ors.
291
who either contributes or is author of the
accident
would
be
liable
for
his
contribution to the accident having taken
place.

10. 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
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
292 INDIAN LAW REPORTS ALLAHABAD SERIES
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the case
may be, should be entitled to recover
damages if principle of social justice
should have any meaning at all.

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

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

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

[Emphasis added]

11. No doubt F.I.R. is not a
substantive piece of evidence but it has to
be proved by leading cogent evidence. The
learned counsel for the appellant has relied
on the decisions of the Apex Court titled
(a) Meera Devi and another vs. HRTC
and others, 2014 (2) T.A.C. 1 (S.C.); (b)
National Insurance Com. Ltd. Vs. Jai
Deo Singh, 2010 (80) ALR 52; (c)
Oriental Insruance Compnmay Ltd.
through Branch Manager Vs. Smt.
Rehana Begham and others, 2009 (2)
TAC 227 (All.); (d) Rajendra Singh and
others Vs. National Insurance Company
Limited, 2020 (3) TAC 25 (SC); and (e)
Sunil Sharma and others Vs. Bachitar
Singh and others, (2011) 11 SCC 425 to
submit that deceased was not a tort feassor
and the finding needs to be reversed. These
decisions are also relied to contend that
compensation requires revaluation.

12. The vehicles involved are trailer
and the car. Site plan goes to show that the
vehicle of unequivocal magnitude dashed
with each other. The Tribunal came to the
conclusion and based its decision on the
basis of site plan that the accident occurred
in the middle road. Unfortunately, the
driver of the trailer has not examined
himself. The charge sheet was laid against
him. The F.I.R., site plan and other facts
have been considered by us. While
considering the totality of the facts and
circumstances, the driver of Trailer RJ 14
GF 4210 can be said to be negligent and we
hold him to be negligent to the tune of 75%
10 All. Smt. Islamunnisa Vs. Smt. Manni Devi & Ors.
293
as the accident occurred at about 12 noon
just because in the F.I.R., it was mentioned
that the trailer was coming from the
opposite side, the Tribunal believed this
aspect. There is no rebuttal to the F.I.R.
Relevant part of the Judgment reads as
under:-

";gkW ;g Hkh mYys[kuh; gS fd izLrqr
ekeyk eksVj nq?kZVuk izfrdj ls lEcfU/kr gS vkSj
,sls ekeys esa lansg ls ijs lkfcr djus dk
fl)kUr ykxw ugha gksrk gS] cfYd dsoy okgu ds
pkyd ds rsth o ykijokgh ds ifj.kke ds
QyLo:i nq?kZVuk esa e`R;q gksus ds lEcU/k esa ;qfDr
& ;qDr lEHkkoukvksa dks gh lkfcr djuk gksrk gSA
bl lEcU/k esa foeyk nsoh cuke fgekpy jksM
VakaliksVZ dkjiksjs'ku 2009 2 Vh-,-lh- 693 o
ijes'ojh nsoh cuke vehj pUnz 2011 2 Vh-,-lh-
848 ds fu.kZ; fof/k mYys[kuh; gS ftlesa fd
ekuuh; loksZPp U;k;ky; ds }kjk ;g fl)kUr
ykxw ugha gksrs gSa] cfYd ;qfDr&;qDr laxr
lEHkkouk dks gh lkfcr djuk gksrk gSA^^

13. brothers of the deceased, who are
the claimants in F.A.F.O. No. 3203 of
2018.

Compensation in both appeals

14. Submission of the counsel for the
appellant that the Tribunal has deducted several
amounts from income of the deceased and has
deducted amount which could not have been
deducted, namely, HRA and other benefits. The
Tribunal , unfortunately, did not grant any
amount under the head of future loss of income
though the deceased was in service.

15. The House Rent Allowance received
by deceased could not have been deducted. We
are supported in view of the Vimal Kanwar
and others Vs. Kishore Dan and Others,
2013 (3) T.A.C. 6 (S.C.). Though the Tribunal
has referred to the decision of Sarla Verma Vs.
Delhi Transport Corporation, (2009) 6 SCC
121 for granting multiplier. It has not granted
future loss. The income of deceased Dr. Mohd.
Asif is considered to be Rs.60,885 per month as
per Tribunal but his income would be
Rs.41,070/- + Rs.7,875/- (HRA) = Rs.48,945/-.
The Tribunal deducted income tax, HRA and
other allowances which could not be done. The
Tribunal has not added any amount of future
loss of income through deceased was in
Government Job. As the deceased was below
40 years, 50% will have to be added towards
future prospect. Deducted towards his personal
expenses would be 1/3rd. Further as he was
aged 29 years at the time of accident, multiplier
applicable would be 17. Deduction of 25%
would be towards negligence attributed to him.
The amount awarded under the head of non
pecuniary damages for fililal consortium is also
on lower side which requires ehnancement.

Hence, the total compensation
payable to the appellant in view of the
Judgment of Apex Court in National
Insurance Company Limited Vs. Pranay
Sethi and Others, 2017 0 Supreme (SC)
1050 for death of Dr. Mohd. Asif is
computed herein below:

i.
Income
Rs.48,945/-
(after
deduction Income Tax and Transport
Allowance)

ii. Percentage towards future
prospects : 50% namely Rs.24472/-

iii. Total income : Rs. 48945 +
24472 = Rs.73,417/-

iv. Income after deduction of 1/2
: Rs.36,708/-

v. Annual income : Rs.36,708 x
12 = Rs.4,40,496/-

vi. Multiplier applicable : 17
294 INDIAN LAW REPORTS ALLAHABAD SERIES

vii. Loss of dependency: Rs.4,40,496
x 17 = Rs.74,88,432/-

viii. Amount under non-pecuniary
head : Rs.40,000/-

ix.
Total
compensation
:
Rs.75,28,432/-

Total compensation payable to the
appellant after deduction 25% would be
Rs.56,46,324/-

16. As far as the second appeal for
enhancement of compensation for death of
daughter-in-law is concerned, income of Kaniza
Begum @ Zeenat Mumtaz can be considered to
be Rs.5,000/- to which as she was aged 27
years, 40% will have to be added under the
head of future prospect as she was home maker.
Further 1/2 has to be deducted towards personal
expenses as she had no liability to maintain her
husband who was doctor by profession.
Multiplier applicable would be 17. Rs.30,000/-
is gratned towards non-pecuniary damages to
the appellant.

Hence,
the
total
compensation
payable to the appellant in view of Pranay Sethi
(supra) for death of Kaniz Begum @ Zeenat
Mumtaz is computed herein below:

i. Income Rs.5,000/-

ii. Percentage towards future
prospects : 40% namely Rs.2000/-

iii. Total income : Rs. 5,000 +
2,000 = Rs.7,000/-

iv. Income after deduction of 1/2
: Rs. 3,500/-

v. Annual income : Rs.3,500 x 12
= Rs.42,000/-

vi. Multiplier applicable : 17

vii.
Loss
of
dependency:
Rs.42,000 x 17 = Rs.7,14,000/-

viii. Amount under non-pecuniary
head : Rs.30,000/-

ix.
Total
compensation
:
Rs.7,44,000/-

Total compensation payable to
the appellant after deduction 25% would be
Rs.5,58,000/-.

Reason why 25% is deducted

17. In fact the deceased was not a tort
feasor. The heirs can claim from any of the
tort feasors. The mother-in-law is the legal
heir rather mother of the deceased who is
held to be negligent to the tune of 25% and
as recovery rights would have to be granted
to
the
owner
driver
and
Insurance
Company of trailer. It would be practical to
deduct. The amount as recovery has to be
from the petitioner as the deceased was
owner and driver of other vehicle involved.

18. As far as issue of rate of interest is
concerned, rate of interest as granted by the
Tribunal is maintained.

19. Looking to the old age of the
claimaint-appellant amounts not to be kept
in fixed deposit as accident occurred in the
year 2013 and we are now in the year 2021.

20. In view of the above, the appeals
are 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% from
10 All. The Oriental Insurance Comp. Ltd. Vs. Smt. Gitanjali Sharma & Ors.
295
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.

21. On depositing the amount in the
Registry of Tribunal 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 be made or not made as
applicant is aged lady of 70 years.

22. Record and proceedings be sent to
the Tribunal.

23. We are thankful to both the
counsels for getting the old matter disposed
of.
----------
(2021)10ILR A295
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 12.08.2021

BEFORE

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

FAFO No. 3288 of 2007
and
FAFO NO, 3442 of 2007

The Oriental Insurance Comp. Ltd.
 ...Appellant
Versus
Smt. Gitanjali Sharma & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Arvind Kumar

Counsel for the Respondents:
Sri Ram Singh, Sri Amit Kumar Sinha,
Deepali Srivastava Sinha

(A) Motor Vehicle Act, 1988 : Section
2(16), (17), (47) - "goods vehicle", "heavy
goods vehicle" or "public service vehicle"
can be commonly called as "transport
vehicle". (Para 17)

The Court opined that the distinction is of
nature of use of the vehicle which makes no
difference as the driver of the offending vehicle
having a driving license of heavy passenger
vehicle was driving a heavy goods vehicle and
same falls within the definition of transport
vehicle; consequently the driver of the offending
vehicle was having a valid and effective driving
license at the time of accident and Insurance
Company-appellant
cannot
avoid
from
its
liability to pay compensation. (Para 23)

Appeals are Partly Allowed. (E-10)

List of Cases cited:

1. National Insurance Co. Ltd. Vs Swaran Singh
& ors. 2004 (3) SCC 297

2. Oriental Insurance Co. Ltd. Vs Shiv Narain
Sahani & ors. 2007 ACJ 1640

3. Mukund Dewangan Vs Oriental Insurance Co.
Ltd. & anr. (2016) 4 SC 298

4. Kusumlata Vs Lalaram & ors. 2003 ACJ 1966

5. National Insurance Co. Ltd. Vs Smt.
Anurandha Kejriwal & 4 ors. First Appeal From
Order No. 2103 of 2017

6. Nirmala Kothari Vs United India Insurance Co.
Ltd. (2020) 4 SCC 49

7. Oriental Insurance Co. Ltd. Vs Poonam
Kesarwani & ors. 2008 LawSuit (All) 1557

8. Khenyei Vs New India Assurance Co. Ltd. &
ors. 2015 LawSuit (SC) 469 (followed)

9. New India Insurance Co. Ltd. Vs Smt.
Kalpana & ors. 2007 TAC 795