# Smt. Kusuma Devi & Ors v. Shrawan Kumar Mishra & Ors

- **Citation:** (2022) 6 ILRA 910
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-18
- **Case number:** First Appeal From Order No. 4097 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kusuma-devi-ors-v-shrawan-kumar-mishra-ors-48679
- **Pages:** 10

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988,
Section -166- Appeal - compensation -
Contributory negligence - motorcycle of the
deceased hit the truck from behind due to
truck driver pushed his break all of sudden -
In absence of discharging the burden to
prove that truck driver was not negligent -
the finding of tribunal towards contributory
negligence to the extent of 45% attributed
to the deceased and 55% to the truck driver
is maintained. (Para 14)

(B) Civil Law - Motor Vehicles Act, 1988,
Section 166, - U.P. Motor Vehicles Rules,
1998,
Rules
220
-
Compensation
-
Quantum of compensation - Form 16 is
authentic document for the purpose of
computation of the salary of deceased -
Multiplier of 9 should be applied instead of
8 as per law lay down in Sarla Verma'a &
Pranay Sethi' case - 25% of income ought
to be added towards future loss of income
including
Rs.
1
lacks
towards
nonpecuniary
damages
-
Compensation
computed and awarded accordingly. (Para
117, 21, 26, 31, 32, 34)

Appeal is partly allowed. (E-11)

List of Cases cited: -

## Text

910 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

23.

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)06ILR A910
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2022

BEFORE

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

First Appeal From Order No. 4097 of 2017

Smt. Kusuma Devi & Ors. ...Appellants
Versus
Shrawan Kumar Mishra & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Vidya Kant Shukla, Sri Shravan Kumar
Pandey, Sri Shyam Narain Pandey

Counsel for the Respondents:
Sri Pawan Kumar Singh

(A) Civil Law - Motor Vehicles Act, 1988,
Section -166- Appeal - compensation -
Contributory negligence - motorcycle of the
deceased hit the truck from behind due to
truck driver pushed his break all of sudden -
In absence of discharging the burden to
prove that truck driver was not negligent -
the finding of tribunal towards contributory
negligence to the extent of 45% attributed
to the deceased and 55% to the truck driver
is maintained. (Para 14)

(B) Civil Law - Motor Vehicles Act, 1988,
Section 166, - U.P. Motor Vehicles Rules,
1998,
Rules
220
-
Compensation
-
Quantum of compensation - Form 16 is
authentic document for the purpose of
computation of the salary of deceased -
Multiplier of 9 should be applied instead of
8 as per law lay down in Sarla Verma'a &
Pranay Sethi' case - 25% of income ought
to be added towards future loss of income
including
Rs.
1
lacks
towards
nonpecuniary
damages
-
Compensation
computed and awarded accordingly. (Para
117, 21, 26, 31, 32, 34)

Appeal is partly allowed. (E-11)

List of Cases cited: -

1. Nishan Singh & ors. Vs Oriental Insurance
Company Limited & ors., 2018 vol. 6 SCC 765

2. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. (FAFO No. 1818/2012
Decided on Dt. 19.07.2016)

3. Archit Saini & anr. Vs Oriental Insurance
Comp. Ltd., AIR 2018 SC 1143

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

5. Sarla Verma & ors. v. Delhi Transport Corp. &
anr., 2009 LawSuit (SC)

6. National Insurance Company Limited Vs Pranay
Sethi & ors., 2017 vol. 0 Supreme (SC) 105

7. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (Supreme court)

8. Smt. Hansa Gauri P. Ladhani Vs The Oriental
Insurance Comp. Ltd. (2007 vol. 2 GLH 291)
6 All. Smt. Kusuma Devi & Ors. Vs. Shrawan Kumar Mishra & Ors.
911
9. Smt. Sudesna & ors. Vs Hari Singh & anr.-
(Review Application No. 1/2020 -FAFO No.
23/2001

10. Tej Kumari Sharma Vs Chola Mandlam MS
General Insurance Company Ltd. FAFO No.
2871/2016 Decided on Dt. 19.03.2021.

11. Bajaj Allianz General Insurance Co. Ltd. Vs
U.O.I. & ors. (Decided by Hon'ble Apex Court on
27.01.2022)

12. United India Insurance Co. Ltd. Vs Dipesh
Rai & ors. (FAFO No. 998/2022 Decided on
21.04.2022)

(Delivered by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the
claimants have challenged the judgment
and award dated 05.09.2017 passed by
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.12, Kanpur Nagar (hereinafter referred
to as ''Tribunal') in M.A.C.P. No.926 of
2014 (Smt. Kusuma Devi and Others Vs.
Shrawan Kumar Mishra and Others)
awarding
sum
of
Rs.17,13,000/-
as
compensation to the claimants with interest
at the rate of 7% per annum.

2. Heard Mr. Shyam Narain Pandey,
learned counsel for the appellants and Mr.
Pawan Kumar Singh, learned counsel for the
respondent-Insurance Company. Perused the
record.

3. The accident is not in dispute. The
driver of the said vehicle was having valid
and effective driving licence on the date of
accident is also a decided fact. The vehicle
being insured and there being no breach of
policy condition is a finding, which has
attained finality. The Insurance Company
Ltd. (hereinafter referred to as "Insurance
Company") has not challenged the liability on
it. In this case, learned Tribunal has fixed
45% contributory negligence of the deceased
which
the
appellants
have
objected
vehemently and argued this point along with
quantum fixed by learned Tribunal.

4. Brief facts of the case are that
claimants-appellants filed Motor Accident
Claim Petition before the learned Tribunal
with the averments that on 21.06.2014 at
about 9:45 PM (night) the deceased Lal
Bahadur Dwivedi was coming from his field
to the home by his motorcycle. When he
reached at village Bhinduri within the
jurisdiction of police station Chaubepur,
District Kanpur Nagar, a truck bearing
no.H.R. 38A 5791, going ahead of the
motorcycle of the deceased, the truck driver
suddenly applied thebrake without any
indication, due to which the motorcycle of
the deceased rammed into the truck going
ahead.

5. In this accident, the deceased
sustained fatal injuries and he died on way to
the hospital. Manoj Kumar-nephew of the
deceased
was
also
travelling
in
his
motorcycle behind the deceased, who saw the
accident and taken the deceased to the
hospital.

6. The issue regarding the insurance
of the offending truck and driving licence
of its driver have been decided in
affirmative.
As
far
as
question
of
negligence is concerned, Mr. Pawan Kumar
Singh, learned counsel for the Insurance
Company has submitted that deceased was
negligent and responsible for the accident
because he hit the truck going ahead.
Learned
counsel
for
the
Insurance
Company has relied on the decision of
Apex Court in Nishan Singh and Others
Vs. Oriental Insurance Company Ltd. and
Others, 2018 (6) Supreme Court Cases
765.
912 INDIAN LAW REPORTS ALLAHABAD SERIES

7. It is further submitted that since the
deceased was himself negligent, except
grant of non pecuniary damages, no other
amount would be payable to the claimantsappellants.

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. T he 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.

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
6 All. Smt. Kusuma Devi & Ors. Vs. Shrawan Kumar Mishra & Ors.
913
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 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."

11. Learned counsel for the appellants
has submitted that learned Tribunal has
held the contributory negligence of the
deceased to the tune of 45% and this issue
of negligence has been wrongly decided by
the learned Tribunal because P.W.-2 is the
eye witness of the accident and he has
deposed in his testimony that the truck
driver all of sudden appliedbrake which
caused the accident.

12. It is also submitted by learned
counsel for the appellants that truck driver
did not appear before the learned Tribunal
though he was the best witness. The charge
sheet is also filed against the driver of the
truck, hence, the deceased was not at all
negligent in driving the motorcycle. P.W.-
914 INDIAN LAW REPORTS ALLAHABAD SERIES
2, Manoj Kumar Dwivedi is the eye
witness of the accident, who was coming
behind
the
deceased
on
his
own
motorcycle. As per the testimony of P.W.-
2, the truck driver applied the brake all of
sudden, but he has also deposed that
deceased could not apply the brake
completely due to which the motorcycle hit
the aforesaid truck going ahead of him.

13. We are even fortified in our view
by the decision of the Apex Court in Archit
Saini and Another Vs. Oriental Insurance
Company Limited, AIR 2018 SC 1143,
wherein the finding of the Tribunal was
upheld by adverting to the same more
particularly the Apex Court has upheld the
finding in paragraph 21 to 27 in its
judgment. The paragraph 5 of the said
Apex Court's judgment is reproduced
hereinbelow:

"5.The respondents had opposed
the claim petition and denied their liability
but did not lead any evidence on the
relevant issue to dispel the relevant fact.
The Tribunal after analysing the evidence,
including the site map (Ext. P-45) produced
on record along with charge-sheet filed
against the driver of the Gas Tanker and the
arguments of the respondents, answered
Issue 1 against the respondents in the
following words:

"21. Our own Hon'ble High Court
in a case captioned Lakhu Singh v. Uday
Singh [Lakhu Singh v. Uday Singh, 2007
SCC OnLine P&H 865 : PLR (2007) 4
P&H 507] held that while considering a
claim petition, the Tribunal is required to
hold an enquiry and act not as criminal
court so as to find whether the claimants
have established the occurrence beyond
shadow of any reasonable doubt. In the
enquiry, if there is prima facie evidence of
the occurrence there is no reason to
disbelieve such evidence. The statements
coupled with the facts of registration of FIR
and trial of the accused in a criminal court
are sufficient to arrive at a conclusion that
the accident has taken place. Likewise,
in Kusum
Lata v. Satbir [Kusum
Lata v. Satbir, (2011) 3 SCC 646 : (2011) 2
SCC (Civ) 37 : (2011) 2 SCC (Cri) 18 :
(2011) 2 RCR (Civil) 379] the Hon'ble
Apex Court has held that in a case relating
to motor accident claims, the claimants are
not required to rove the case as it is
required to be done in a criminal trial. The
Court must keep this distinction in mind.
Strict proof of an accident caused by a
particular bus in a particular manner may
not be possible to be done by the claimants.
The claimants were merely to establish
their
case
on
the
touchstone
of
preponderance of probability. The standard
of proof beyond reasonable doubt could not
have been applied.

22.
After
considering
the
submissions made by both the parties, I
find that PW 7 Sohan Lal eyewitness to the
occurrence has specifically stated in his
affidavit Ext. PW 7/A tendered in his
evidence that on 15-12-2011 at about 20.30
p.m. he along with PHG Ajit Singh was
present near Sanjha Chulha Dhaba on the
National Highway leading to Jammu. All
the traffic of road was diverted on the
eastern side of the road on account of
closure of road on western side due to
construction work. In the meantime a
Maruti car bearing No. HR 02 K 0448
came from Jammu side and struck against
the back of Gas Tanker as the driver of the
car could not spot the parked tanker due to
the flashlights of the oncoming traffic from
front side. Then they rushed towards the
spot of accident and noticed that the said
tanker was standing parked in the middle of
6 All. Smt. Kusuma Devi & Ors. Vs. Shrawan Kumar Mishra & Ors.
915
the road without any indicators or parking
lights.

23. The statement of this witness
clearly establishes that this was the sole
negligence on the part of the driver of the
Gas Tanker especially when the accident
was caused on 15-12-2011 that too at about
10.30 p.m. which is generally time of pitch
darkness. In this way, the driver of the car
cannot be held in any way negligent in this
accident. Moreover, as per Rule 15 of the
Road Regulations, 1989 no vehicle is to be
parked on busy road.

24. The arguments of the learned
counsel for the respondent that PW 7 Sohan
Lal has stated in his cross-examination that
there was no fog at that time and there were
lights on the Dhaba and the truck was
visible to him due to light of Dhaba and he
was standing at the distance of 70 ft from
the truck being road between him and the
truck and he noticed at the car when he
heard voice/sound caused by the accident
so Respondent 1 is not at all negligent in
this accident but these submissions will not
make the car driver to be in any way
negligent and cannot give clean chit to the
driver of the Gas Tanker because there is a
difference between the visibility of a
standing vehicle from a place where the
person is standing and by a person who is
coming driving the vehicle because due to
flashlights of vehicles coming from front
side the vehicle coming from opposite side
cannot generally spot the standing vehicle
in the road that too in night-time when
there is neither any indicator or parking
lights nor blinking lights nor any other
indication given on the back of the
stationed vehicle, therefore, the driver of
the car cannot be held to be in any way
negligent rather it is the sole negligence on
the part of the driver of the offending Gas
Tanker as held inGinni Devi case [Ginni
Devi v. Union of India, 2007 SCC OnLine
P&H 126 : 2008 ACJ 1572] , Mohan Lal
case [New
India
Assurance
Co.
Ltd. v. Mohan Lal, 2006 SCC OnLine All
459 : (2007) 1 ACC 785 (All)] . It is not the
case of the respondent that the parking
lights of the standing truck were on or there
were any other indication on the backside
of the vehicle standing on the road to
enable the coming vehicle to see the
standing truck. The other arguments of the
learned counsel for Respondent 3 that the
road was sufficient wide road and that the
car driver could have avoided the accident,
so the driver of the car was himself
negligent in causing the accident cannot be
accepted when it has already been held that
the accident has been caused due to sole
negligence of the driver of the offending
stationed truck in the busy road. The
proposition of law laid down in Harbans
Kaur case [New India Assurance Co.
Ltd. v. Harbans Kaur, 2010 SCC OnLine
P&H 7441 : (2010) 4 PLR 422 (P&H)]
and T.M. Chayapathi case [New India
Assurance Co. Ltd. v. T.M. Chayapathi,
2004 SCC OnLine AP 484 : (2005) 4 ACC
61] is not disputed at all but these
authorities
are
not
helpful
to
the
respondents being not applicable on the
facts and circumstances of the present case.
Likewise,
non-examination
of
minor
children of the age of 14 and 9 years who
lost their father and mother in the accident
cannot be held to be in any way detrimental
to the case of the claimants when
eyewitness to the occurrence has proved
the accident having been caused by the
negligence of Respondent 1 driver of the
offending vehicle.

25. Moreover, in Girdhari Lal v.
Radhey Shyam [Girdhari Lal v. Radhey
Shyam, 1993 SCC OnLine P&H 194 : PLR
916 INDIAN LAW REPORTS ALLAHABAD SERIES
(1993) 104 P&H 109] , Sudama Devi v.
Kewal Ram [Sudama Devi v.Kewal Ram,
2007 SCC OnLine P&H 1208 : PLR (2008)
149 P&H 444] and Pazhaniammal case
[New
India
Assurance
Co.
Ltd.
v.
Pazhaniammal, 2011 SCC OnLine Ker
1881 : 2012 ACJ 1370] our own Hon'ble
High Court has held that ''it is, prima facie
safe to conclude in claim cases that the
accident has occurred on account of rash or
negligent driving of the driver, if the driver
is facing the criminal trial on account of
rash or negligent driving.'

26. Moreover, Respondent 1 driver
of the offending vehicle has not appeared in
the witness box to deny the accident having
been caused by him, therefore, I am inclined
to draw an adverse inference against
Respondent 1. In this context, I draw support
from a judgment of the Hon'ble Punjab &
Haryana High Court reported asBhagwani
Devi v. Krishan
Kumar
Saini[Bhagwani
Devi v. Krishan Kumar Saini, 1986 SCC
OnLine P&H 274 : 1986 ACJ 331].
Moreover, Respondent 1 has also not filed
any complaint to higher authorities about his
false implication in the criminal case so it
cannot be accepted that Respondent 1 has
been falsely implicated in this case.

27. In view of above discussion,
it is held that the claimants have proved
that the accident has been caused by
Respondent 1 by parking the offending
vehicle bearing No. HR 02 AF 8590 in the
middle of the road in a negligent manner
wherein Vinod Saini and Smt Mamta Saini
have died and claimants Archit Saini and
Gauri Saini have received injuries on their
person. Shri Vinod Saini, deceased who
was driving ill-fated car on that day cannot
be held to be negligent in any way.
Accordingly, this issue is decided in favour
of claimants."

 (emphasis supplied)"

14. It is admitted fact that motorcycle
hit the truck from behind, hence, we are in
agreement with the finding of learned
Tribunal that the deceased did not keep the
safe distance from the truck. If he would
have kept the safe distance, the accident
could have been avoided. Hence, the
deceased was also negligent in driving the
motorcycle. On the other hand, the truck
driver applied the brake all of sudden. The
truck driver has not stepped into the
witness box, who was the best witness to
tell why he applied brake suddenly or
whether he was in compulsion to apply the
brake all of sudden. Hence, the owner and
Insurance Company have not discharged
their burden to prove that truck driver was
not negligent. Hence, we uphold the
conclusion of learned Tribunal that the
deceased and truck driver both were
negligent and we concur with the finding of
learned Tribunal fixing the contributory
negligence of truck driver to the tune of
55% and the negligence of the deceased to
the tune of 45%. Hence, finding of Tribunal
in this regard is maintained.

15. Now, the only issue to be decided
is, the quantum of compensation, awarded
by the Tribunal.

16. Learned Tribunal has computed
the total compensation Rs.31,15,123/- and
awarded its 55% as Rs.17,13,000/- after
deducting the 45% of amount towards
contributory negligence of the deceased.

17. Learned counsel for the appellants
has submitted that deceased was posted as a
Fitter
in
Indian
Artificial
Limbs
Manufacturing Corporation, Kanpur and
his salary was Rs.48,438/- per month but
learned Tribunal has taken salary only at
6 All. Smt. Kusuma Devi & Ors. Vs. Shrawan Kumar Mishra & Ors.
917
Rs.37,555/- per month, which was not in
consonance with the settled law. Income
tax was also deducted from the salary of
the deceased and net salary of Rs.36,055/-
has taken by the learned Tribunal for the
purpose of computation.

18. Learned counsel for the appellants
has submitted that only that part of the
salary would be admissible, which was for
the benefit of the family of the deceased,
but learned Tribunal has committed error in
computation of the salary of the deceased.
Learned counsel for the appellants has
relied on the judgment of Apex Court in
Vimal Kanwar and Others VS. Kishore
Dan and Others, 2013 0 Supreme (SC)
441.

19. It is also submitted by learned
counsel for the appellants that learned
Tribunal has not granted any amount under
the head of non pecuniary damages and no
reason is assigned for non granting the
same.

20. Per contra, learned counsel for the
Insurance Company has submitted that only
non
pecuniary
damages
would
be
grantable. We are not agreeable with the
submission of learned counsel for the
Insurance
Company
that
only
non
pecuniary damages would be granted.

21. Perusal of record shows that last
salary slip of the month of April, 2014 is on
record and Form-16 is also on record.
Form-16 is an authentic document for the
purpose of computation of the salary of the
deceased. Form-16 shows gross annual
income of the deceased at Rs.5,95,175/-. It
is also shown that total income tax of the
year was Rs.23,622/-. Hence, after the
deduction of income tax from the gross
salary it comes of Rs.5,71,553/-, which
should be considered for computation of
compensation, hence, annual income of the
deceased is taken at Rs.5,70,000/- (rounded
off).

22. Learned Tribunal has added 25%
for future loss of income, which needs no
interference. Tribunal has deducted 1⁄4 for
personal expenses of the deceased. Keeping
in view of number of dependents, we
uphold the same.

23. Submission is that learned
Tribunal has not awarded any sum towards
non pecuniary damages and has not
assigned any reason for non grant of the
same.

24. Other points of contention, which
are argued by learned counsel for the
appellants is that learned Tribunal has
applied multiplier of 8 while should have
been 9 as per the judgment of the Apex
Court in Sarla Verma and Others Vs.
Delhi
Transport
Corporation
and
Another, 2009 LawSuit (SC) 613 to which
we agree. Learned Tribunal has rightly
deducted 1/4 of the income of the deceased
for personal expenses. Lastly, it was
contended by the appellants that learned
Tribunal has awarded interest at the rate of
7% per annum which should be enhanced.

25. No other arguments were placed
regarding the fixation of quantum.

26. As per the judgment of Apex
Court in National Insurance Company vs.
Pranay Sethi [2014 (4) TAC 637 (SC),
appellants would be entitled to get
Rs.15,000/-
for
loss
of
estate
and
Rs.15,000/- towards funeral expenses.
Apart from it, the wife of the deceased shall
also be entitled to get Rs.40,000/- for loss
of consortium. In this way, the appellants
918 INDIAN LAW REPORTS ALLAHABAD SERIES
shall be entitled to get Rs.70,000/- under
non-pecuniary heads with upward revision
after every three years, hence, we allow
total Rs.1,00,000/- under non-pecuniary
heads.

27. Hence, the total compensation
payable to the appellants in view of the
decisions of the Apex Court in Sarla Verma
and Others (Supra) and Pranay Sethi
(Supra) is computed herein below:

1.
Annual
income
i.e. Rs.5,70,000/-
Rs.5,70,000/- p.a.
2.
Percentage
towards
future
prospect : 25%
Rs.1,42,500/-
3.
Total income :
Rs.5,70,000/-
+
Rs.1,42,500/-
Rs.7,12,500/-
4.
Income
after
deduction of 1/4 :
Rs.7,12,500/-
-
Rs.1,78,125/-
Rs.5,34,375/-
5.
Multiplier
applicable : 9 :-
Rs. 5,34,375 X 9
Rs.48,09,375/-
6.
Amount
under
non
pecuniary
head : Rs.15,000
+ Rs.15,000 +
Rs.40,000/- with
10%
upward
revision
Rs.1,00,000/-
7.
Total
compensation
:
Rs.48,09,375
+
Rs.1,00,000/-
Rs. 49,09,375/-
8.
Amount
after
45%
deduction
towards
contributory
Rs.
27,00,000/-
(rounded off)
negligence
:
Rs.49,09,375
-
Rs.22,09,218/-

28. 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."

29. Learned Tribunal has awarded
rate of interest as 7% per annum but we are
fixing the rate of interest as 7.5% in the
light of the above judgment.

30. In view of the above, the appeal
stands partly 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 08
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. Statutory amount be remitted
to the Tribunal.
6 All. Jitendra Kumar Yadav Vs. Union of India & Ors.
919

31. 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
claimants 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.

32. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex Court in
Bajaj Allianz General Insurance Company
Pvt. Ltd. Vs. Union of India and Others, vide
order dated 27.01.2022, as the purpose of
keeping compensation is to safeguard the
interest of the claimants. Since long time has
elapsed, the amount be deposited in the Saving
Bank Account of claimant(s) in a nationalized
Bank without F.D.R.

33. Recently, this Bench has come across
the high handed action taken by the tribunal
immediately post declaration of the award by
issuing recovery warrant against the Insurance
Company even before expiry of period of
appeal. As under Section 173 of the Motor
Vehicles Act, 1988 and Uttar Pradesh Motor
Vehicles (Eleventh Amendment) Rules, 2011,
the period of limitation should be permitted to
expire
and,
thereafter,
the
said
claim
application/petition itself would be considered
to be an execution petition/application for
execution of the award, but for a period of 90
days or as described in future till the period of
appeal is not over, no coercive action shall be
taken ex party in pursuance of the execution
proceedings, if initiated. The claimants would
not be required to file execution petition, an
application in the disposed of matter itself
would suffice.

34. It goes without saying that the tribunal
shall wait for 90 days, namely, the period of
limitation for preferring appeal under Section
173 of the Motor Vehicles Act, 1988. The order
of this Court in F.A.F.O. No.998 of 2022,
United India Insurance Co. Ltd. v. Dipesh Rai
and others decided on 21.4.2022, wherein also
this Bench has requested the Hon'ble the Chief
Justice
to
circulate
amongst
the
trial
judicial/MACT tribunal in the State. These new
directions will apply in all the matters where the
awards are passed and/or to be passed and no
coercive action shall be taken for 90 days except
issuance of summon/notice and an advance copy
to the counsel for the Insurance company or the
tortfessor who is judgment debtor be served.
----------
(2022)06ILR A919
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ-A No. 2573 of 2022

Jitendra Kumar Yadav ...Petitioner
Versus
Union of India & Ors. ...Respondents