# Smt. Kamal Marwah & Ors v. M/s Owens Bilt Ltd. & Anr

- **Citation:** (2021) 10 ILRA 275
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-05
- **Case number:** FAFO No. 2688 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamal-marwah-ors-v-m-s-owens-bilt-ltd-anr-46270
- **Pages:** 5

## Headnote

Sri Tarun Agarwal, Sri Akhilesh Mishra,Sri R.D.
Singh, Sri S.S. Nigam, Sri Prakhra Srivastava, Sri
R.K.Shukla

(A)
Practice
&
Procedure
-
First
Appellate Court can also decide the appeal
for quantum if the records are available.
Therefore, the Court on observing that the
appeal remained pending for a period of 15
years before this Court and it being a case
of sole bread winner who was not a tort
feasor
has
passed
away,
the
Court
proceeded
to
decide
just
and
fair
compensation. (Para 7)

Appeal Allowed. (E-10)

List of Cases cited:

## Text

10 All. Smt. Kamal Marwah & Ors. Vs. M/s Owens Bilt Ltd. & Anr.
275
Singh
and
another),
decided
on
13.08.2021. Thus, the appeal has to be
allowed.

21. Applying the said principles of
law as laid down by the Hon'ble Supreme
Court in the decisions relied upon hereinabove, we find that the approach of the
Tribunal in deciding the aforesaid claim
petition was not correct and was based on
surmises and conjectures and misreading of
the evidence on record as well as the
judgments, which were meant for deciding
the quantum of compensation.

22. Hence, the impugned judgment
and award dated 20.03.2018 passed by the
Tribunal is set aside. The matter is remitted
to
the
Tribunal
to
consider
the
compensation awardable to the claimantsappellants in accordance with law as the
deceased was a non-tort feaser and the
accident occurred on account of the
negligence of the driver of the vehicle, for
which we have given our findings. As the
evidence is already over and the pay-slips
are before the Tribunal, the compensation
as awardable in the light of the decisions of
the Apex Court be granted within six weeks
of receipt of the record by the Tribunal.

23. Accordingly, the appeal is
allowed.

24. Let the lower court record be sent
back to the Tribunal.
----------
(2021)10ILR A275
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 05.10.2021

BEFORE

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

FAFO No. 2688 of 2011

Smt. Kamal Marwah & Ors. ...Appellants
Versus
M/s Owens Bilt Ltd. & Anr. ...Respondents

Counsel for the Appellant:
Sri Swetashwa Agarwal

Counsel for the Respondents:
Sri Tarun Agarwal, Sri Akhilesh Mishra,Sri R.D.
Singh, Sri S.S. Nigam, Sri Prakhra Srivastava, Sri
R.K.Shukla

(A)
Practice
&
Procedure
-
First
Appellate Court can also decide the appeal
for quantum if the records are available.
Therefore, the Court on observing that the
appeal remained pending for a period of 15
years before this Court and it being a case
of sole bread winner who was not a tort
feasor
has
passed
away,
the
Court
proceeded
to
decide
just
and
fair
compensation. (Para 7)

Appeal Allowed. (E-10)

List of Cases cited:

1. Jai Prakash Vs National Insurance Co. Ltd.
(2010) 2 SCC 607

2. Vimla Devi & ors. Vs National Insurance Co.
Ltd. & anr. 2019 (2) SCC 186

3. Sunita Sharma & ors. Vs Rajasthan State
Road Transport Corporation & anr. 2019
LawSuit (SC) 190

4. Anita Sharma Vs New India Assurance Co.
Ltd. (2021) 1 Supreme Court Cases 171

5. Archit Saini Vs Oriental Insurance Co. Ltd. &
ors. 2018 0 AIR (SC) 1143

6. Bithika Mazumdar & anr. Vs Sagar Pal & ors.
AIR 2017 SC 965 (followed)

7. New India Assurance Co. Ltd. Vs Urmila
Shukla 2021 SCC online SC 82 (followed)
276 INDIAN LAW REPORTS ALLAHABAD SERIES
8. National Insurance Co. Ltd. Vs Pranay Sethi
& ors. 2017 0 Supreme (SC) 1050 (followed)

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

10. Smt. Sudesna & ors. Vs Hari Singh & ors.
Review Application No. 1 of 2020 in First Appeal
From Order No. 23 of 2001

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

12. AIR 2021 SC 3301

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

1. Heard Sri Swetashwa Agarwal,
learned counsel for the appellant. None
appears for respondent no. 1 as Shri
S.S.Nigam,
learned
counsel
for
the
respondent conveys that client has already
taken back the file. For a period of fifteen
years none has appeared for Insurance
Company, though duly served. We take up
this appeal for final disposal as the claim
petition filed was contending involvement of
truck no. U.P. 08-3024. The claim petition
was dismissed as the Tribunal answered issue
no. 1 against the appellants, who have lost the
only bread winner of the family.

2. This appeal, at the behest of the
claimants, challenges the judgment/award
dated 4.3.2006 passed by Additional District
Judge (Court No.4), Meerut/Motor Accident
Claims Tribunal, Meerut (hereinafter referred
to as 'Tribunal') rejecting the M.A.C. No. 91
of 1998 preferred by the claimants.

3. Brief facts as culled out from the
record are that the deceased was travelling
in a taxi from Delhi to Dehradun with his
colleague on 28.08.1997. At that point of
time the truck bearing no. U.P. 08-3024
came from the opposite side dashed with
the car in which deceased was travelling.
The driver of the taxi and two other people
received several injuries, unfortunately the
driver of the said vehicle died on the spot.
Of the two the deceased Luv Kumar
Marwah also received several injuries and
was rushed to the hospital where he
succumbed to injuries. The claimants filed
claim petition and examined P.W.-1 and he
died out of the injuries on 06.09.1997. He
was taken to Sir Ganga Ram Hospital, New
Delhi where he was in coma and on
06.09.1997 at the age of 51 years he died.
He was Deputy General Manager in Oil
And Natural Gas Corporation and was
earning Rs. 30,000/- p.m plus L.T.C. and
other allowances were also made available
to him. Respondent no. 2 appeared before
the Tribunal and filed his reply of denial
contending that the claim petition could not
proceed as the driver, the owner and the
Insurance Company of taxi bearing no.
D.L.1 Y-1879 was not a party and
contended that the accident occurred due to
negligence of the driver of the car and not
that of the truck. It was further contended
that the driver of the taxi was also negligent
and that the driver of the truck was not
driving the truck in a rash and negligent
manner and the truck was been driven
against the Motor Vehicle rules in breach
of policy condition. The owner of the truck
M/s Owens Bilt Limited did not appear, did
not file their reply.

4. As far as the issue no. 1 is
concerned, the claimants examined P.W.-1-
A.G. Pramanik, P.W.-2- Smt. Kamal
Marwa, P.W.-3-V.K. Verma and P.W.-4-
Vineet Kumar and filed documentary
evidence
the
F.I.R,
charge-sheet,
postmortem report, medical report, his
10 All. Smt. Kamal Marwah & Ors. Vs. M/s Owens Bilt Ltd. & Anr.
277
salary certificate, death certificate given by
Sir Ganga Ram Hospital, New Delhi, his
income tax reports, his date of birth also.

5. The Tribunal after hearing the
parties held that it was not proved that the
vehicle was involved in the accident. If we
go by the written statement filed by the
Insurance Company, it was even not their
case that the vehicle insured by them was
not involved in the accident. They have
pleaded that the driver of the car was
negligent and not the driver of the truck.
We are conveyed by the learned counsel for
the appellant that the deceased was not
driver of the taxi he was an occupant of the
taxi and for him it was case of composite
negligence. The evidence of passenger is
not believed as when he was in the vehicle
he had gone to sleep when the accident
occurred and he become unconscious. This
is one reason why the learned Tribunal did
not accept his version. The evidence on
record goes to show that he was eye
witness, he was present in the car and has
narrated the incident. There is no point for
not believing the said witness. The learned
Tribunal has unfortunately fallen in error in
ignoring the charge-sheet and ignoring the
other evidence on record. The Tribunal has
fallen in error in holding that the other
witnesses did not see the accident. The
other witnesses were examined for proving
the income of the deceased and not the
factum of the incident.

6. The learned Tribunal has in our
view grossly erred by not accepting the
version of P.W.-1. The judgement of the
Apex Court in Jai Prakash Vs National
Insurance Company Ltd., (2010) 2 SCC
607 cited by the learned counsel for the
appellant and the judgement in Vimla Devi
& Ors. Vs. National Insurance Company
Limited & Anr., reported in 2019 (2)
SCC 186 vehmently applies on the facts of
this case. In our case the documents are
already there on record. There was
sufficient
evidence
adduced
and
the
documents established the identity of the
offending vehicle and vehicles involved in
that view of the matter also the Tribunal
has fallen in error. We are further fortified
in our view by the recent judgments of
Apex Court titled Sunita Sharma and
others
Vs.
Rajasthan
State
Road
Transport Corporation and another
[2019 LawSuit (SC) 190] dealing with
similar issues. The decision in Anita
Sharma Vs. New India Assurance Co.
Ltd. (2021) 1 Supreme Court Cases 171
were also aid the appellants. This takes us
to the next point namely that as it was of
composite negligence qua the deceased the
way the accident occurred, the driver of the
truck has not even stepped into the witness
box. The driver of the car succumbed to the
injuries. The principle of res-ipsa-loqitur
will apply to the facts of this case. We hold
driver of the truck to be solely negligent as
the charge-sheet is laid against him, he was
named as offender in the F.I.R and we are
convinced by the submission of Shri
Swetashwa Agarwal, learned counsel for
the appellants that the accident occurred
due to sole negligence of the driver of the
truck. We are even fortified our view by the
judgment of Archit Saini Vs. Oriental
Insurance Company Limited and others
2018 0 AIR (SC) 1143, hence issue no. 1
as decided by the Tribunal is out turn, we
hold driver of the truck negligent.

7. This takes us to the next question
whether we should remand the matter or
decide quantum here. The Apex Court in
Bithika Mazumdar and another Vs. Sagar
Pal & Ors., AIR 2017 SC 965. The Apex
Court in the said decision has held that the
first appellate court can decide the appeal for
278 INDIAN LAW REPORTS ALLAHABAD SERIES
quantum also if the record is available. The
appeal has remained pending before this
Court for a period of 15 years. The record is
before this Court and it is case where sole
bread winner was non tort feasor has passed
away. We would decide what is known as
just and fair compensation. On the facts we
hold that quantum also can be decided here in
light of the said decision which we venture to
decide. The Apex Court in Bithika (Supra)
has held that when the matter is pending
since
long
the
appellate
can
decide
compensation as the accident occurred in the
year 1997. The petition was dismissed in the
year 2006. The petition remained pending for
five years on the defective board and
thereafter it was taken up and numbered, we
also therefore, venture to decide the quantum
as the record is before us. The age of the
deceased was 51 years which is proved by the
evidence of the officers of O.N.G.C, he was
Deputy General Manager of O.N.G.C, his
monthly salary as culled out from the record
and as per the evidence would be Rs.
30,000/- per month which is proved by
document at Annexure-39 on G, his revised
and re-revised salary the chart is given. The
salary was received from 01.01.1997 namely
from the date he was in service but the effect
was given only in the month of March, 2020.
We hold his income to be Rs. 30,000/-p.m
out of which we deduct 15% as income tax,
hence Rs. 25,000/- p.m is his income plus as
he was 51 years of age as per the U.P. Motor
Vehicle Rules, 1998 and the judgment of the
Apex Court in New India Assurance
Company Ltd. Vs. Urmila Shukla 2021
SCC online SC 822, we grant future loss of
income at 15% which is in consonance with
the judgment of National Insurance Co.
Ltd. Vs. Pranay Shetty and Others, 2017 0
Supreme (SC) 1050, hence Rs. 25,000/- plus
15% as he was survived by his wife and two
minor daughters, one -third is to be deducted
for personal expenses. The deceased was in
the age bracket of 51 years we grant
multiplier of 11 plus Rs. 70,000/- under the
head of non- pecuniary head.

8. Hence, the total compensation
payable to the appellants is computed
herein below:

i. Income Rs.25,000/-

ii. Percentage towards future
prospects : (15%) Rs.3750/-

iii.Total income : Rs. 25,000 +
3,750= Rs.28,750/-

iv. Income after deduction of 1/3
: Rs. 19,166/-

v. Annual income : Rs. 19,166 x
12 = Rs.2,30,000/-

vi. Multiplier applicable : 11

vii.
Loss
of
dependency:
Rs.2,30,000 x 11 = Rs.25,30,000/-

viii. Amount under non-pecuniary
head= 70,000/-

ix.
Total
compensation
:RS:
26,00,000/-

9. As far as issue of rate of interest is
concerned, it would be 6% but for period
when delay occurred namely of one month in
filing appeal as per the judgment of Apex
Court reported in AIR 2021 SC 3301, the
appellants should not be entitled to interest as
it is a matter of the year 1998 which remained
pending to this Court. Special case we grant
interest at 6% through out.

10. In view of the above, the appeal is
allowed. Judgment and award passed by the
10 All. Desh Kumar @ Desh Raj Nagariya & Anr. Vs. Vinod Khatri & Anr.
279
Tribunal is set aside. The respondentInsurance Company shall deposit the
amount within a period of 12 weeks from
today with interest at the rate of 6% from
the date of filing of the claim petition till
the amount is 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.

11. 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.

12. Record be sent back to tribunal
forthwith.

13. This Court is thankful to the
young counsel who has ably assisted us for
getting this old matter disposed of during
this pandemic.
----------
(2021)10ILR A279
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 15.09.2021

BEFORE

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

FAFO No. 2895 of 2008
(Ref: Civil Misc. Delay Condonation &
Substitution Application)

Desh Kumar @ Desh Raj Nagariya & Anr.
 ...Appellants
Versus
Vinod Khatri & Anr. ...Respondents

Counsel for the Appellants:
Sri Ramanand Gupta,Sri Maithali Sharan
Pipersenia,Sri P.N. Gupta

Counsel for the Respondents:
Sri Archana Singh

(A) Composite/ Contributory Negligence -
The deceased or the person concerned should
be shown to have contributed either to the
accident and the impact of accident upon the
victim could have been minimised if he had
taken care. In this case, the deceased was not
the author or the co-author of the accident.
(Para 12)

Appeal Partly Allowed. (E-10)

List of Cases cited:

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