# Smt. Kamlesh Sharma & Ors v. United India Insurance Co. Ltd. & Anr

- **Citation:** (2022) 4 ILRA 1033
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-03
- **Case number:** First Appeal From Order No. 1221 of 2004
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajay Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamlesh-sharma-ors-v-united-india-insurance-co-ltd-anr-48361
- **Pages:** 9

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168 and 173--Compensation--
Tribunal held the driver of the tanker negligent
to the extent of 25% and bus driver 70%--
Owner and driver of the bus not joined as party-
-Tribunal granted compensation to the tune of
25% being the liability of the tanker-- Tribunal
did not allow compensation to the extent of
70% of the negligence on part of the bus driver-
-Deceased not author or co-author of the
accident--He was hit by bus and then by the
tanker--Decision
of
Tribunal
on
point
of
negligence to the extent of 70% on part of the
Bus and 25% on the tanker upheld--Driver of
the bus did not step into the witness box--
Insurer could have examined the driver of the
bus by filing application for procuring his
presence before the Tribunal--Negligence of
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased to the extent of 5% decided by the
Tribunal affirmed--Insurance Company to be
saddled with 95% liability with right to recover
70% from bus-owner and 30% from the owner
of the tanker--Income of deceased taken at `
90,000 per annum--Multiplier applicable would
be 13--Loss of dependency determined at `
9,75,000--Total compensation assessed at `
10,75,000 by adding ` 1 lakh under nonpecuniary heads--Interest allowed @ 7.5%.

Appeal partly allowed. (E-9)
List of Cases cited:

## Text

4 All. Smt. Kamlesh Sharma & Ors. Vs. United India Insurance Co. Ltd. & Anr.
1033
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.

23. 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.

24. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of Smt.
Hansaguti 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.

25.

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.
----------
(2022)04ILR A1033
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2022

BEFORE

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

First Appeal From Order No. 1221 of 2004

Smt. Kamlesh Sharma & Ors. ...Appellants
Versus
United India Insurance Co. Ltd. & Anr.
 ...Respondents

Counsel for the Appellants:
Sri D.P. Verma, Sri B.P. Verma

Counsel for the Respondents:
Sri Devendra Kumar

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168 and 173--Compensation--
Tribunal held the driver of the tanker negligent
to the extent of 25% and bus driver 70%--
Owner and driver of the bus not joined as party-
-Tribunal granted compensation to the tune of
25% being the liability of the tanker-- Tribunal
did not allow compensation to the extent of
70% of the negligence on part of the bus driver-
-Deceased not author or co-author of the
accident--He was hit by bus and then by the
tanker--Decision
of
Tribunal
on
point
of
negligence to the extent of 70% on part of the
Bus and 25% on the tanker upheld--Driver of
the bus did not step into the witness box--
Insurer could have examined the driver of the
bus by filing application for procuring his
presence before the Tribunal--Negligence of
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased to the extent of 5% decided by the
Tribunal affirmed--Insurance Company to be
saddled with 95% liability with right to recover
70% from bus-owner and 30% from the owner
of the tanker--Income of deceased taken at `
90,000 per annum--Multiplier applicable would
be 13--Loss of dependency determined at `
9,75,000--Total compensation assessed at `
10,75,000 by adding ` 1 lakh under nonpecuniary heads--Interest allowed @ 7.5%.

Appeal partly allowed. (E-9)
List of Cases cited:

1. National Insurance Company Limited Vs
Pranay Sethi & ors. MANU/SC/1366/2017;

2. Vimal Kanwar & ors. Vs Kishore Dan & ors.
MANU/SC/0460/2013;

3. Rylands v Fletcher MANU/UKHL/0001/1868;

4. Jacob Mathew Vs St. of Pun. & ors.
MANU/SC/0457/2005;

5. Khenyei Vs New India Assurance Co. Ltd. &
ors. MANU/SC/0582/2015;

6.
T.O.
Anthony
Vs
Karvarnan
&
ors.
MANU/SC/7181/2008;

7. Anita Sharma & ors. Vs The New India
Assurance Co. Ltd. & ors. MANU/SC/0928/2020;

8. National Insurance Company Ltd. Vs Mannat
Johal & ors. MANU/SC/0589/2019;

9. A.V. Padma & ors. Vs R. Venugopal & ors.
MANU/SC/0065/2012;

10. Hansaguri Prafulchandra Ladhani & ors. Vs
The Oriental Insurance Company Ltd. & ors.
MANU/GJ/2100/2006
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri B.P. Verma, learned
counsel for the appellants, Sri Devendra
Kumar, Advocate has absented himself
even in the third round. We have perused
the award and record of the Tribunal
impugned.

2. This appeal, at the behest of the
claimants, challenges the judgment and
order dated 6.2.2004 passed by Motor
Accident
Claims
Tribunal/Additional
District
Judge,
Court
No.1,
Meerut
(hereinafter referred to as 'Tribunal') in
M.A.C.No.494 of 2002 awarding a sum of
Rs.1,77,375/- with interest at the rate of 7%
as compensation.

3. Brief facts as culled out from the
record are that on 26.2.2002, the deceasedSatyadev Sharma was going on scooter No.
U.P.-15 G/7219 from L. Block Shastri
Nagar to Tejgarhi and when he reached
near Bank of Baroda then Tanker No.
U.P.No.9002 hit the scooter from behind.
He was treated in Lokpriya Hospital
Meerut and Apolo Hospital Delhi and
ultimately on 4.3.2002, he died. A very
strange accident has occurred whereby a
young person after being hit by a bus and
tanker, died after about ten days in the
hospital. Tribunal very strangely granted
compensation to the tune of only 25%
whcih was the liability of the tanker. The
Tribunal held the driver of the bus to be
negligent to the tune of 70% but did not
grant compensation as according to the
Tribunal, having not joined the owner or
the driver of the said bus disentitled the
claimants from claiming compensation.
The better option for the Tribunal was to
direct the driver and owner of the bus to be
joined as respondents but neither the
insurance company of the tanker gave such
application. In this backdrop, that we are
called upon to decide the liability and the
compensation awardable to the legal heirs
of the deceased. The deceased was aged
about 46 years and was working as Labour
and Industrialk Law Concultation as well
4 All. Smt. Kamlesh Sharma & Ors. Vs. United India Insurance Co. Ltd. & Anr.
1035
as Manager ( Legal) in Sanghal Paper Ltd.
And was earning Rs.20,000/- per month.

4. The accident is not in dispute. The
issue of negligence decided by the Tribunal
is in dispute. Apportionment of negligence
is under challenge. The respondent has not
challenged the liability imposed on them.
The only issue to be decided by this Court
is, the quantum of compensation awarded
for which we have minutely scanned the
record. The involvement of three vehicles;
bus, truck and scooter driven by deceased
is not in dispute. The dispute is non-grant
of 70% of compensation attributed to the
negligence of bus driver.

5. It is submitted by learned counsel
for the appellant that the deceased was 46
years of age at the time of accident and was
in the job and was having labour
consultancy as Manager( Legal) in Sanghal
Paper Ltd. and was earning Rs.20,000/- per
month. His income was considered by the
Tribunal to be Rs.75,000/- per annum
which according to the counsel for the
appellants is on the lower side and should
be considered at least Rs.20,000/- per
month. It is further submitted that the
Tribunal has not granted any amount
towards future loss of income of the
deceased which should be granted in view
of the decision in National Insurance
Company Limited Vs. Pranay Sethi and
Others, 2017 0 Supreme (SC) 1050. It is
further submitted that the amount granted
under non-pecuniary damages are on the
lower side and it should be as per the
decision in Pranay Sethi (Supra).

6. As against this, learned counsel for
the Insurance Company has submitted that
the award does not require any interference
as the date of accident is 26.7.2002 and the
decision of the Tribunal is prior to the
judgment
of
National
Insurance
Company Limited Vs. Pranay Sethi and
Others, 2017 0 Supreme (SC) 1050 and
therefore the Tribunal has not committed
any error in not granting the future loss of
income. It is further submitted that the
judgment of Supreme Court in Vimal
Kanwar and Others Versus Kishore Dan
and others ( 2013) 7 SCC 476 which has
been pressed into service by learned
counsel for appellant cannot apply in the
facts of this case as the deceased was self
employed and the Tribunal has committed
no error.

7. Having heard the learned counsel
for the appellant and having perused the
record as the issue of negligence is under
challenge rather apportionment and nongrant of 70% of amount, the issue of
negligence is discussed herein below.

8. 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 contributory
negligence has been discussed time and
again. A person who either contributes or
author of the accident would be liable for
his contribution to the accident having
taken place.
1036 INDIAN LAW REPORTS ALLAHABAD SERIES

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. Clause6 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 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
4 All. Smt. Kamlesh Sharma & Ors. Vs. United India Insurance Co. Ltd. & Anr.
1037
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. The Apex Court in Khenyei Vs.
New India Assurance Company Limited
& Others, 2015 LawSuit (SC) 469 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.
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
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
4 All. Smt. Kamlesh Sharma & Ors. Vs. United India Insurance Co. Ltd. & Anr.
1039
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

12. The latest decision of the Apex
Court in Khenyei (Supra) has laid down
one further aspect about considering the
negligence
more
particularly
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. On facts, the deceased was plying
the vehicle. The deceased was not by bus
and then by tanker. The Tribunal has held
non joinder of bus for deduction of
compensation, 70% could not be deducted
from compensation payable by deceased.
We uphold the decision as far as negligence
of all the three driver is concerned, but hold
that the insurance company has to be
saddled with 95% of liability with right to
recover the finding of facts as far as
negligence apportioned by the Tribunal is
not disturbed as the facts goes to show that
the driver of the bus did not stepped into
the witness box. The Tribunal or the
insurance company would have examined
the driver by filing an application for
procuring his presence before the Tribunal
which was not done. We hold the bus
driver to be 70% negligent and the driver of
the tanker to be 25% negligent. Negligent
of deceased has decided by Tribunal to be
5% is maintained in the facts of this case.

Re-computation of Compensation :-

13. This Court finds that the accident
occurred on 26.7.2002 causing death of Satya
Deo Sharma who was 46 years of age at the
time of accident. The Tribunal has assessed
his income to be Rs.75,000/- per year which
according to this Court, in the year of
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
accident, would be at least Rs.90,000/- on the
basis of evidence produced before the
Tribunal both oral and documentary. The
Tribunal has committe3de error in not
considering income tax return and their mean
has to be calculated. We are fortified in our
view by the decision in Anita Sharma Vs.
New India Assurance Company Limited
(2021) 1SCC 171. To which as the deceased
was in the age bracket of 46-50, 25% of the
income will have to be added in view of the
decision of the Apex Court in Pranay Sethi
(Supra). The amount under non-pecuniary
heads should be at least Rs.1,00,000/- in view
of the decision in Pranay Sethi (Supra) as
every three years 10% be added to
Rs.70,000/-.
In
view
the
facts
and
circumstances of the case, this Court feels no
interference is called for as far as deduction
of personal expenses is concerned.

14. The total compensation payable
is recalculated and is computed herein
below:

i. Annual Income Rs.90,000/-

ii. Percentage towards future prospects
: 25% namely Rs.22,500/-

iii. Total income : Rs.90,000/- +
Rs.22,500/- = Rs.1,12,500/-

iv. Income after deduction of 1/3rd
towards personal expenses : Rs.75,000/-

v. Multiplier applicable : 13

vi. Loss of dependency: Rs.75,000/- x
13 = Rs.9,75,000/-

vii. Amount under non pecuniary
heads
:
Rs.1,00,000/-Rs.70,000/-
+
Rs.30,000/-
)

viii.
Total
compensation
:
Rs.10,75,000/-

ix. Compensation payable to claimants
after deductions of 5% negligence on the
part of the deceased : Rs.10,75,000/- -
Rs.53,750/- = Rs.10,21,250/-.

15. 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."

16. It is submitted by learned counsel
for the appellant that it is not necessary but
to join to other tort feasor as held in the
decision of the Apex Court in Khenyei
(Supra). The Tribunal while computing the
amount held that only 25% would be
payable as that was the liability of the
insurance company and the owner of the
tanker. The owner of the bus and the
number of bus was also there before the
Tribunal and it could have directed the
claimant to join the said other tort feasor
also. The decision of the Tribunal is against
the settled legal principals of law, hence is
up turned.

17. 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 respondentInsurance Company shall deposit the
amount within a period of 12 weeks from
4 All. New India Assurance Co. Ltd., Kanpur Vs. Dr. Smt. Sunita Jain & Ors.
1041
today with interest at the rate of 7.5% from
the date of filing of the claim petition till
award and 6% thereafter till the amount is
deposited. The amount already deposited
be deducted from the amount to be
deposited. The insurance company would
be at liberty to recover 70% amount from
the co-tort-feasor, namely; bus whose
number is given in the record. The
deduction of 70% on the basis that the
driver and owner of the bus was not been
joined and that the deceased was negligent
to the tune of 5% and, therefore, only 25%
of the amount is payable is against the
principal enunciated in Khenyei (Supra).
Qua the appellant, it was a case of
composite
negligence
coupled
with
contrary negligence to the tune of 50% of
the deceased and, therefore, the amount
will have to be compensated by the
respondent and the insurance company is
given recovery rights from the other tort-
feasor.

18. 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.

19. 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.

20. 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 not blindly apply the
judgment of A.V. Padma (supra). The same
is to be applied looking to the facts of each
case.

21. Record be transmitted to the
Tribunal forthwith.
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(2022)04ILR A1041
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2022

BEFORE

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

First Appeal From Order No. 1046 of 1992

New India Assurance Co. Ltd., Kanpur
 ...Appellant
Versus
Dr. Smt. Sunita Jain & Ors. ...Respondents