# Smt. Kamini & Ors v. New India Assurance Co. Ltd., Bareilly & Ors

- **Citation:** (2023) 5 ILRA 203
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-05
- **Case number:** First Appeal From Order No. 2740 of 2006
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamini-ors-v-new-india-assurance-co-ltd-bareilly-ors-50190
- **Pages:** 4

## Headnote

Civil Law
- Motor Accident Claim-
Impugned
award-accident
and
issue
of
negligence
not
dispute-quantum
of
compensation to be decided-deceased was
40 years-in service of U.P. Co-operative
Federation-Tribunal
assessed
income
Rs.
7000/- per month-but according to the salary
slip monthly income would be Rs. 7974assesment bad-deceased was in age bracket
of 36-40-50% of income be added-deduction
towards personal expense-1/3rd as seven
dependents-entitled for non-pecuniary head
plus 10 % rise-Rate of interest to be 7.5%
instead of 6 %..

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

5 All. Smt. Kamini & Ors. Vs. New India Assurance Co. Ltd., Bareilly & Ors.
203
8
Compensation (H)
19,04,000/-
9
Conventional
Heads:
(I)
(a) Loss of love and
affection
(b) Loss of consortium
(c) Loss of Estate
(d) Funeral
70,000/-
10
Total compensation
(H+ I = J)
19,74,000/-
11
Interest
7.00%

III. Conclusion and Directions:

23. The amount of compensation to
which the claimant-appellant has thus been
found entitled shall be deposited by the
corporation within three months before the
learned tribunal. Thereafter the learned
tribunal shall release the amount to the
claimant-appellant
without
delay.
The
amount already disbursed to the claimant
(if any) shall be duly adjusted.

24.
The
amount
of
Rs.25,000/-
deposited by the appellant-claimant while
instituting the appeal shall be forthwith
remitted to the learned tribunal.

25. The instant appeal is partly
allowed as indicated above.
----------
(2023) 5 ILRA 203
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2023

BEFORE

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

First Appeal From Order No. 2740 of 2006

Smt. Kamini & Ors. ...Appellants
Versus
New India Assurance Co. Ltd., Bareilly &
Ors. ...Respondents
Counsel for the Appellants:
Sri Shivendra Singh, Sri Mohd. Naushad
Siddiqui

Counsel for the Respondents:
Sri Aditya Singh Parihar, Sri Aditya Singh
Parihar

Civil Law
- Motor Accident Claim-
Impugned
award-accident
and
issue
of
negligence
not
dispute-quantum
of
compensation to be decided-deceased was
40 years-in service of U.P. Co-operative
Federation-Tribunal
assessed
income
Rs.
7000/- per month-but according to the salary
slip monthly income would be Rs. 7974assesment bad-deceased was in age bracket
of 36-40-50% of income be added-deduction
towards personal expense-1/3rd as seven
dependents-entitled for non-pecuniary head
plus 10 % rise-Rate of interest to be 7.5%
instead of 6 %..

Appeal partly allowed. (E-9)

List of Cases cited:
1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 LawSuit (SC) 1093

2. Sarla Verma & ors. Vs Delhi Transport
Corporation & anr., 2009 LawSuit (SC)

3. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 LawSuit (SC) 1093

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

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

6. A.V. Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442

7. Smt. Hansaguri P. Ladhani Vs The Oriental
Insurance Company Ltd., reported in 2007(2)
GLH 291

8. Review Application No.1 of 2020 in First
Appeal From Order No.23 of 2001 (Smt.
Sudesna & ors. Vs Hari Singh & anr.)
204 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Bajaj Allianz General Insurance Company Pvt.
Ltd. v. U.O.I. & ors.

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

1. Heard Sri Mohd. Nausad Siddiqui,
learned counsel for the appellants and Sri
Aditya Singh Parihar, learned counsel for
the respondent and perused the judgment
and order impugned. None appears for
owner.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 18.9.2004 passed by the Motor
Accident Claims Tribunal/ District Judge,
Bareilly
(hereinafter
referred
to
as
'Tribunal') in M.A.C.P No.375 of 2001
awarding a sum of Rs.6,20,800/- as
compensation with interest at the rate of
6%.

3. The accident is not in dispute. The
issue of negligence decided by the Tribunal
is also not in dispute. The only issue to be
decided is the quantum of compensation
awarded.

4. The accident took place on
22.4.2001. The deceased was 40 years of
age and was in service in U.P. CoOperative Federation as Centre In-charge.
The Tribunal considered his income to be
Rs.7000/- per month, deducted 1/3rd
towards personal expenses of the deceased,
granted multiplier of 11 and awarded
Rs.5,000/- towards non pecuniary damages.
The Tribunal has calculated the total
compensation to be Rs.6,20,800/- payable
to the legal representative.

5. Learned counsel for the appellants
submit that the income of the deceased
should be considered to be at least
Rs.7974/- per month as per pay slip. The
deductions made by Tribunal could not be
considered as P.F. contribution cannot be
deducted. It is further submitted by learned
counsel for the appellants that the Tribunal
has not added any amount under the head
of future loss of income which should be
granted. The Apex Court in National
Insurance Co. Ltd. Vs. Pranay Sethi and
others, 2017 LawSuit (SC) 1093 has
suggested guidelines for grant of future loss
of income. It is also submitted that the
Tribunal has applied the multiplier of 11.
Though it is proved that the age of
deceased was 40 years. The deduction of
1/3rd for personal expenses is also bad,
should be 1/4th as there were seven
dependants of the deceased who was the
sole breadwinner. The multiplier should be
15 in view of the decision of the Apex
Court in Sarla Verma and others Vs.
Delhi
Transport
Corporation
and
Another, 2009 LawSuit (SC).

6. It is also submitted by learned
counsel for the appellant that the amount
awarded under non pecuniary damages is
on the lower side and is required to be
enhanced in view of the decision in
National Insurance Co. Ltd. Vs. Pranay
Sethi and others, 2017 LawSuit (SC)
1093.

7. Learned counsel for the appellant
has lastly submitted that the rate of interest
awarded by Tribunal is on the lower side
and it should be as per the repo rate
prevailing in those days.

8. As against this, learned counsel for
respondent-
insurance
company
has
contended that Tribunal has rightly not
considered any amount under the head of
future loss of income as it was not proved
by claimants as to what would be increment
5 All. Smt. Kamini & Ors. Vs. New India Assurance Co. Ltd., Bareilly & Ors.
205
in salary. It is submitted by learned counsel
for respondent- insurance company that he
Tribunal has considered the multiplier of 11
as per the age of the deceased which is just
and proper as it was the law prevailing in
the day when the accident occurred.
Learned counsel for the respondent has
lastly contended that the compensation
awarded by the Tribunal is just and proper
and does not call for any interference of
this Court.

9. It is further submitted by learned
counsel for the respondent that the accident
is of the year 2001 whereas the judgment of
the Tribunal is prior to the decision in
Pranay Sethi (Supra) and, therefore, non
addition of future loss of income is just and
proper.

10. Heard the learned counsels for the
parties and considered the factual data. This
Court finds that the accident occurred on
22.4.2001 causing death of Bhanu Pratap
Singh who was 40 years of age at the time
of accident. The Tribunal has assessed his
income to be Rs.7000/- per month which
according to this Court, in the year of
accident, would be at Rs.7974/- per month
looking to his salary slip, therefore, the
assessment of income to be Rs.7,000/-
made by Tribunal is bad in view of the
mandate of the Apex Court in the case of
Vimal Kanwar and Others Vs. Kishore
Dan and others, 2013 (3) T.A.C. 6 (S.C.).
The deceased was in the age bracket of 3640, 50% of the income will have to be
added in view of the decision of the Apex
Court in Pranay Sethi (Supra). The
deduction towards personal expenses of the
deceased would be 1/3rd as the deceased
has left behind him seven dependents.

11. As far as amount under nonpecuniary
heads
is
concerned,
the
appellants would be entitled to Rs.70,000/-
plus 10% rise in every three years in view
of the decision of the Apex Court in
Pranay Sethi (Supra) and, therefore, we
round up the figure to Rs.1,00,000/- under
this head.

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

i. Income: Rs.7974/-per month
(Rs.95688 per year)

ii. Percentage towards future
prospects : 50% namely Rs.47844/-

iii. Total income : Rs.95688 +
Rs.47844 = Rs.143532/-

iv. Income after deduction of
1/3rd
towards
personal
expenses
:
Rs.95,688/-

v. Multiplier applicable : 15

vi.
Loss
of
dependency:
Rs.95,688 x 15 = Rs.14,35,320/-

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

viii.
Total
compensation
:
Rs.15,35,320/-.

13. As far as issue of rate of interest is
concerned which is granted is 6%, 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
206 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

14. 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 as
directed above. The amount already deposited
be deducted from the amount to be deposited.
Record and proceedings be sent back to the
Tribunal forthwith.

15. 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 is
not passed because applicants /claimants are
neither illiterate or rustic villagers.

16. 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 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)
while disbursing the amount.

17. 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.

18. The Tribunal shall follow the
guidelines issued by the Apex Court in Bajaj
Allianz General Insurance Company Private
Ltd. v. 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 long period has elapsed, the
amount be deposited in the Saving Account of
claimants in Nationalized Bank without F.D.R.

19. This Court is thankful to both the
counsels for getting this matter decided.
----------

(2023) 5 ILRA 206
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 3389 of 2018

Smt. Rajawati & Ors. ...Appellants
Versus
IFFCO Tokio General Insurance Co. Ltd.
New Delhi & Ors. ...Respondents