# Smt. Jagriti & Ors v. The NIACL, Allahabad & Ors

- **Citation:** (2022) 1 ILRA 158
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-10
- **Case number:** First Appeal From Order No. 3380 of 2003
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jagriti-ors-v-the-niacl-allahabad-ors-47648
- **Pages:** 7

## Headnote

A. Civil Law - Motor Vehicle Act, 1988Section
176-Enhancement
of
compensation- First appellant died leaving
behind his widow and four minor children
at the age of 35 years and he was earning
Rs. 55,00/-per month as Manager while
other appellant who was aged about 30
years was earning Rs. 2500/-per month
in private service along with agriculture
income 5000/-per month and he was 70%
disabled
after
the
accident-Tribunal
awarded a sum of Rs. 50,000/- and
25,000/-
to
the
appellants
as
compensation but not granted future loss
of income-Since, the appellants will fall
within the category of self-employed,
40% shall be added towards future
prospects as per Apex Court guidelines -
By applying the multiplier of 16, the total
loss of dependency is assessed for first
appellant Rs. 11,08,000/- and for the
other appellant it would be 6,45,000/-
Thus, the claimants entitled for increase of
compensation.(Paras 1 to 16)

The appeal is allowed.(E-6)

List of Cases cited:

## Text

158 INDIAN LAW REPORTS ALLAHABAD SERIES
Hence he would be at the age of 25 years as
of today.

8. We, therefore, would fall back
judgment on the Kajal (Supra) and in this
backdrop let us evaluate the income in view
of the decisions of the Apex Court titled
Hdfc Ergo General Insurance Co. Ltd. v.
Mukesh Kumar, 2021 (0) AJEL-SC
67851 and Jithendran v. New India
Assurance Co. Ltd., 2021 (0) AIJEL-SC
67944
and,
the
recalculate
the
compensation which would be as follows:

i. Income Rs.5,000 x 12=60,000/-
p.a.

ii. Percentage towards future
prospects : 40% namely Rs.24,000/-

iii.
Total
income
:
Rs.60,000+24,000 = Rs.84,000/-

iv. Multiplier applicable : 15

v. Loss of dependency: Rs.84,000
x 15 = Rs.12,60,000/-

vi. Bleak prospect of Marriage:
Rs.1,00,000/-

vii.
For pain
&
sufferings:
Rs.5,00,000/-

viii. Future medicine expenses =
Rs.5,00,000/-

ix. All other heads for wheelchair
= Rs.1,20,000/-

x.
Total
compensation
:
Rs.12,60,000 + Rs. 1,00,000 + 5,00,000 +
5,00,000 + Rs.1,20,000 =24,80,000/-

9. 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."

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

11. In view of the above, the appeal is
partly allowed and oral counter claim is
allowed. 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 7.5% 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.

12. The lower court record be sent
back,
if
here,
to
the
tribunal
for
disbursement.
----------
(2022)01ILR A158
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2021

BEFORE

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

First Appeal From Order No. 3380 of 2003
with
First Appeal From Order No. 1319 of 2003
1 All. Smt. Jagriti & Ors. Vs. The NIACL, Allahabad & Ors.
159
Smt. Jagriti & Ors. ...Appellants
Versus
The NIACL, Allahabad & Ors.
 ...Respondents

Counsel for the Appellants:
Sri A.L. Jaiswal, Sri Shrave Singh

Counsel for the Respondents:
Sri Sudhanshu Behari Lal Gour

A. Civil Law - Motor Vehicle Act, 1988Section
176-Enhancement
of
compensation- First appellant died leaving
behind his widow and four minor children
at the age of 35 years and he was earning
Rs. 55,00/-per month as Manager while
other appellant who was aged about 30
years was earning Rs. 2500/-per month
in private service along with agriculture
income 5000/-per month and he was 70%
disabled
after
the
accident-Tribunal
awarded a sum of Rs. 50,000/- and
25,000/-
to
the
appellants
as
compensation but not granted future loss
of income-Since, the appellants will fall
within the category of self-employed,
40% shall be added towards future
prospects as per Apex Court guidelines -
By applying the multiplier of 16, the total
loss of dependency is assessed for first
appellant Rs. 11,08,000/- and for the
other appellant it would be 6,45,000/-
Thus, the claimants entitled for increase of
compensation.(Paras 1 to 16)

The appeal is allowed.(E-6)

List of Cases cited:

1. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors., FAFO No. 1818 of 2012

2. Kausnuma Begum Vs New India Ins. Co.
(2001) SCC Pg 151

3. Bimla Devi Vs Himachal Rct. (2009) 13 SCC
530 2009 AIR SC 2819

4. Sunita Vs RSRTC, (2019) 0 SCC 195
5. Mangla Ram Vs Oriental Ins. Co. Ltd. &
ors (2018) 5 SCC 656

6. Khenyei Vs New India Assr. Co. Ltd. & ors
(2015) AIR SC 2261

7. Bithika Mazumdar & anr. Vs Sagar Pal & ors
(2017) 2 AIR SCC 748

8. Ram Chandra Singh Vs Rajaram & ors (2018)
AIR SC 3789

9. Nirmala Kothari Vs United India Ins. Co. Ltd.
(2020) 4 SCC 49

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

1. Heard Sri Shrave Singh, learned
counsel for the appellants, Sri Sudhanshu
Behari Lal Gour, learned counsel for the
respondent-for the Insurance Company and
perused
the
judgments
and
orders
impugned.

2. By way of these appeals the
appellants who are the legal heirs of the
deceased have brought in challenge the
award passed by Sri. Narendra Kumar Jain
in M.A.C. No. 765 of 1999 dated
08.09.2003 whereby the Tribunal granted a
sum of Rs. 50,000/- only under section 166
M.V. Act, 1988, to the appellants by way
of appeal being F.A.F.O. No. 3380 of 2003
whereas Sukhpal who was the claimant in
M.A.C. No. 25 of 2000 was also awarded
Rs. 25,000/- only as compensation against
the claim of Rs. 54,00,000/- has challenged
the award by filing F.A.F.O. No. 1319 of
2003. The Tribunals granted this amount
under the head of no fault liability to both
the claimants. Both the claim petitions were
decided separately. It was decided by Smt.
Sadhana
Chaudhary,
which
is
dated
03.02.2003 and the other judgment is of
160 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri.
Narendra
Kumar
Jain,
dated
08.09.2003. At the outset it is not
understood why both the matters which
arose out of the same accident were not
heard and decided together by the same
Tribunal. At the outset we request the
Registrar General of the High Court to
place this concern of ours before Hon'ble
the Chief Justice so directions can be
passed on to the Tribunals in the State. So
that multiplicity of awards and divergent
views are not there, if the matter arises out
of the same accident. We request the
Principal Officer/Tribunal M.A.C.T. or the
District Judge of the District should
consolidate and list all theses matters
before the same Tribunal, so that there is a
comity of views and it does not become
judgecentric decision.

3. The brief facts that emerges from
the record and the paper book are the
accident took place on 18.11.1999 is not in
dispute. The deceased named as Ravindra
who left behind him his widow and four
minor children at the age of 35 years died
in the said accident. He was the Manager in
Sheela Chitra Mandir, Chirodi, and was
earning Rs. 5,500/- per month, whereas
Sukhpal who was aged about 30 years of
age he was earning Rs. 2,500/- per month
in private service in Hanuman Paper Mills
and was having agricultural lands from
which he used to earn Rs. 5,000/- per
month. The doctor has opined that he has
70% disability in his body and he was aged
about 30 years of age. The facts about the
accident of Ravindra who was traveling in
Maruti van owned by respondent no. 1 and
driven by Ram Niwas respondent no. 2
when the Maruti van reached petrol pump
at Sahibabad the driver who was driving
the vehicle rashly and negligently dashed
with a stationary truck which was stationed
on the side of the road. The owner has not
filed reply, the driver who had filed his
reply contended that he was driving the
vehicle with care and caution when the
vehicle reached Bhopura road, suddenly
one cyclist came from the other side, so as
to save him Maruti van dashed with the
stationary truck and contended that there
was no negligence on his part while driving
the vehicle. The Insurance Company filed
its reply and accepted that vehicle Maruti
van was insured with, it was driven in
breach of policy condition and that vehicle
before 1 1⁄2 years was owned by Sushil
Kumar son of Prem Chand who had sold
the said vehicle to respondent no. 1 and
therefore, the Insurance Company has no
liability. The deceased was traveling as
passenger in private vehicle which is
against the terms and conditions of the
policy. Three issues were framed, the first
issue relates to negligence whereby the
deceased was injured and Ravindra Singh
died. In other matter also the issue raised
about negligence, the issues were similar
but it related to injury. All the other issues
raised were similar.

4. The first award of the Tribunal of
dated 03.02.2003 very strangely held that
there is no negligence on the part of the
driver of Maruti van just because P.W.-2
accepted that the driver of Maruti van tried
to save the cyclist. It cannot be said that the
driver of the Maruti van was not negligent.
Similar finding is reiterated in the second
also and has relied on the judgment in
Claim Petition No. 25 of 2000 of Sukhpal.
We will have to evaluate negligence on the
principles enunciated by the Apex Court
and this Court in different decisions.

5. The Tribunals held that driver of
the vehicle not to be held negligent and,
therefore, granted only a sum of Rs.
50,000/- for death and Rs. 25,000/- for
1 All. Smt. Jagriti & Ors. Vs. The NIACL, Allahabad & Ors.
161
injury to Sukhpal namely under the
provisions of no fault liability. This is
under challenge. It is submitted by learned
counsel for the appellants that the Tribunals
have wrongly returned the issue of
negligence against appellants and principle
of strict liability has been totally ignored by
both the Tribunals.

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

7. 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. 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 comear 1992."
162 INDIAN LAW REPORTS ALLAHABAD SERIES

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

8. Also the judgment of Hon'ble Apex
Court "Kausnuma Begum Vs. New India
Insurance Company 2001 SCC Page 151"
will also not permit us to concur with the
decisions of learned Tribunals, the reasons
being the F.I.R. and the charge-sheet were
laid against the driver of the vehicle. The
Supreme Court in Anita Sharma case
relying on Bimla Devi Vs. Himachal Rct,
(2009) 13 SCC 530 2009 AIR SC 2819 and
Sunita
Vs.
Rajasthan
State
Road
Transport Corporation, (2019) 0 SCC 195
has held that the Evidence Act 1872, cast as
duty
on
the
respondents
to
adduce
evidence, so it is to show that vehicles are
being driven so as to avoid any accident
being taken place. In our case the driver
was the best person who has not been
examined on oath, who has not stepped into
the witness box, pleadings and prove
necessary to establish the claim while
discharging by the appellants herein. The
contention of the appellants that accident
occurred due to rash and negligent driving
of the driver should have been accepted by
the Tribunal. In view of the fact that one of
the appellants was himself injured. Lifting
one sentence from the testimony of PW-2
to exonerate the driver is bad in eyes of
law. The approach of the Tribunal should
be holistic analysis of entire pleadings and
evidence
by
applying
principles
of
preponderance
of
probability.
Once,
foundational
fact,
namely,
actual
occurrence
of
accident,
has
been
established, then Tribunal's role would be
to calculate quantum of just compensation
if accident had taken place by reason of
negligence of driver of a motor vehicle and,
while doing so, Tribunal would not be
strictly bound by pleadings of parties.

9. We can also rely on the decision in
Mangla Ram Vs. Oriental Insurance
Company Limited and Others (2018) 5
Supreme
Court
Cases
656
wherein
strictosencso principals of pleadings are not
to
bind
the
Tribunal,
prima-facie
negligence of the driver has to be proved.
In our case both the deceased and the
injured were persons who were not driving
the vehicle nor have they contributed to the
accident having taken place qua them the
judgment of Kausnuma Begum (Supra)
and decision in Khenyei Vs. New Indian
Assurance Company Ltd. & Ors reported
in AIR 2015 SC 2261. The combined effect
of negligence of two persons or joint tort
fessor will be payable by the sole tort
fessor rather the wrong doer. The Tribunal
has in our view committed a grave error in
coming to the conclusion that the driver of
van was not negligent. This finding is not
only erroneous but perverse, the driver of
the offending van did not even step into the
witness box, despite that holding him not
negligent is against the record. The
Tribunal has taken a view which is not
permissible under law, hence, the said
finding is upturned.

10. As far as, the deceased and
injured in F.A.F.O. No. 1319 of 2003 are
concerned the occupants of car. A non
tortfeasor the car hit from behind a
stationary vehicle.

11. As far as, the deceased and
injured, qua both, it was case of composite
negligence and therefore, also the claim
petition could not have been dealt with in
the manner which has been decided.
1 All. Smt. Jagriti & Ors. Vs. The NIACL, Allahabad & Ors.
163

12. The appellant Sukhpal who is the
injured nor the deceased none of them were
driving the Maruti van. The vehicle was
driven at an excessive speed will be not
diluted by the evidence of PW-2 just
because he stated that a cyclist all of sudden
came on the road. The principle of resipsaloquitur would apply to the facts to
demonstrate that the driver of the car was
driving the vehicle at moderate speed had it
been so, it would not have gone towards the
side of the road and ramped into the
stationary vehicle which would permit us to
hold that the driver did not take proper care
nor he did take proper caution. The
principles for deciding the matter do not rest
on the strict interpretation of criminal or
civil jurisprudence but has to be on the basis
of evidence led. In our case the F.I.R and the
charge sheet and the written statement of
driver himself would show that driver was
negligent in driving. It is not proved that the
truck was on the middle of road but was
parked on the side line and the driver of the
car driven his vehicle cautiously, he would
have easily avoided the accident having
taken place. The principles of negligence
would not permit us to concur with findings
of the fact returned by the Tribunals. The
Tribunals has to take what is known as the
practical view in the matter and cannot take
a pendentic or hyper technical view as taken
by the Tribunals. The doctrine of resipsaloquitur will apply to the facts of the
case. Hence, we hold the driver of Maruti
car was negligent. The witnesses as of fact
have deposed that the accident took place
and the vehicle ramped into stationary
vehicle. It cannot be said that there was no
negligence on the part of the driver of
Maruti van.

13. As the matter has remained
pending for 17 years before this High Court
and the destitute family has not got any
amount of compensation despite we feel
that the family members who was the
earning member is lost in the accident, but
as the Insurance Company has contended
that the driving license was fake and they
have not filed appeal because that issue was
never decided. As far as, the claimants are
concerned as the accident is of the year
1999 and the family has been deprived of
compensation. We would take help of
judgment of the Apex Court in Bithika
Mazumdar and Another Vs. Sagar Pal
And Others AIR (2017) 2 Supreme Court
Cases 748, we would venture to decide the
quantum as empowered under section 173
of the Motor Vehicles Act, on the
principles of grant of compensation for
death and injury. As far as, Appeal No.
3380 of 2003 is concerned the deceased
Ravindra was 35 years of age was the
Manager in Sheela Chitra Mandir, Chirodi
earning Rs. 4,500/- per month but we hold
the income at Rs. 5,000/- per month to
which being below the age of 40, 40% will
have to be added for future prospects. As
he was survived by widow, three sons and
one daughter and mother deduction of 1/4
will be necessary for personal expenses and
multiplier of 16 would have to be granted
and Rs. 70,000+ rise 10% in Rs. 70,000/-
will have to be granted. Hence the total
calculation will be Rs. 5,000+2,000 - 1/4
for personal expenses. Out of which the
amount under no fault liability will have
to be deducted + Rs. 1 lac toward non
pecuniary damages.

(i) Annual income Rs.5,000 X 12
= Rs. 60,000/- per annum

(ii) Percentage towards future
prospect : 40% = Rs. 24,000/-

(iii) Total income : Rs. 60,000 +
Rs. 24,000 = Rs. 84,000/-
164 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) Income after deduction of
1/4th : Rs. 84,000 - 21,000 = Rs. 63,000/-

(v) Multiplier applicable : 16 :-
Rs. 63,000 X 16 = Rs. 10,08,000/-

(vi) Amount under non pecuniary
head:Rs.70,000/-+30,000 = Rs.1,00,000/

(vii)
Total
compensation:Rs.
10,08,000+ Rs. 1,00,000 = Rs.11,08,000 /-

14. As far as Sukhpal is concerned,
he was in private service and also doing
agricultural
work.
We
consider
his
income to be Rs. 3,000/- per month to
which being below the age of 30 years,
40% will have to be added for future
prospects. He had 70% disability of body
as a whole to which we would consider it
as 35% as functional disability. The
Tribunal has been inconsistent, one
Tribunal has granted interest and other
Tribunal has refused interest on no fault
liability. Though the amount under no
fault liability should not have been kept
in fixed deposit as that amount is of
meeting the immediate needs of the
family, we deprecate the said practice.
The award shall carry 7% interest.

(i) Annual income Rs.3,000 X
12 = Rs. 36,000/- per annum

(ii) Percentage towards future
prospect : 40% = Rs. 14,400/-

(iii) Total income : Rs. 36,000 +
Rs. 14,400 = Rs. 50,400/-

(iv) Compensation for disability
@ 35%=Rs.2,99,880 or Rs. 3,00,000/-
(rounded of)

(v)
For
paying
shocking
suffering:- Rs. 25,000/-

(vi) Medical expenses and all
other charges:- Rs. 3,00,000 + Rs.
20,000= Rs. 3,20,000/-

(vii) Total compensation: Rs.
3,00,000 + Rs. 25,000/- + Rs. 3,20,000/-
= Rs. 6,45,000/-. Out of which the
amount under no fault liability will
have to be deducted.

15. In this case the Tribunal has held
that the Insurance Company will have right
of recovery from the owner, but in the final
award that direction is missing. However,
as we find that it is admitted fact that the
vehicle was insured with the Insurance
Company,
and
having
decided
the
compensation. We grant the Insurance
Company right of recovery to recover from
owner. However, it will have to prove
before the Tribunal that the owner was
aware about the fake driving license of the
driver and that driver was plying the
vehicle with such a fake driving license.
We pass this order as the Apex court in
Ram Chandra Singh Vs. Rajaram and
others AIR 2018 SC 3789 and the case of
Nirmala
Kothari
v.
United
India
Insurance Co. Ltd. (2020) 4 SCC 49,
wherein it is held that High Court and Trial
Court should examine the fact as to
whether the owner of the vehicle was aware
of fake driving license. In our case we
remand the matter for fresh consideration
on question of liability of the Insurance
Company to recover the amount form the
owner.

16. Appeals are partly allowed.
----------
(2022)01ILR A164
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 266 of 2021

Kanya Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents