# Smt. Malti Pandey & Ors v. United India Insurance Co. Ltd. & Ors - **Citation:** (2022) 5 ILRA 815 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-03-24 - **Case number:** First Appeal From Order No. 2907 of 2015 - **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-malti-pandey-ors-v-united-india-insurance-co-ltd-ors-48593 - **Pages:** 5 ## Headnote Sri Nagendra Kumar Srivastava, Ms. Anubha Gupta A. Civil Law - Motor Vehicles Act,1988 - Section 168 - Motor Accident claim - Quantum of Compensation - Income - potential of earning of the deceased - deceased 38 years of age & was qualified to be a teacher, he was B.A., B.Ed and was doing Vishist B.T.C. Training - Tribunal considered his income only Rs.3000/- per month - Held - Deceased could have become teacher in any of the government school or private institution - income should be at least Rs.10,000/- per month (Para 10) B. Future Loss of Income - accident of the year 2012 - Tribunal not added any amount under the head of future loss of income - Held - decision of the Apex Court in Pranay Sethi can be made applicable retrospectively - Merely because the deceased was not in job cannot be ground for refraining future loss of income - Self employed means his own vocation or business and not job - Court granted addition of 40% towards future loss of income of the deceased (Para 11) C. Civil Law - Motor Vehicles Act,1988 - Section 168 - Motor Accident claim - Quantum of Compensation - Future Loss of Income - deceased self employed - accident of the year 2012 - judgment of the Tribunal prior to the decision in Pranay Sethi - Tribunal not added any amount under the head of future loss of income - Held - decision of the Apex Court in Pranay Sethi can be applied retrospectively in case the appeal is pending - deceased self-employed & aged about 38 years - Court granted addition of 40% towards future loss of income of the deceased - Multiplier applicable : 15 - deceased was survived by three minor children who have lost their father during their childhood, Rs.50,000/- each to the minor children who lost their father at prime age. - Amount under non pecuniary heads : Rs.70,000 + Rs.50,000 + Rs.50,000+ Rs. 50,000 = 2,20,000 - deceased survived by certain period, hence, the medical expenses of Rs.1,03,210 - respondent-Insurance Company directed to deposit the amount within a period of 12 weeks with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited (Para 11, 12, 15) Allowed. (E-5) List of Cases cited: ## Text 5 All. Smt. Malti Pandey & Ors. Vs. United India Insurance Co. Ltd. & Ors. 815 specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., 2013 (8) SCC 337. 22.2. When the review will not be maintainable:- (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived." (emphasis supplied) 11. The judgement of the Apex Court in U.P.S.R.T.C. Vs. Km Mamta and Others AIR 2016 SCC 948 and subsequent judgements of the Apex Court, this practice of summarily dismissing the appeal by Allahabad High Court, without assigning reasons, has been deprecated. 12. The judgement of Apex in U.P.S.R.T.C. Vs. Km Mamta and Others AIR 2016 SCC 948 fully applies to the facts of this case. 13. In view of the aforesaid datum figure where the issues went by the Insurance Company relates to the negligence and the quantum, it cannot be dismissed without discussing the same. 14. In that view of the matter, this review application is allowed. In Ref: Appeal List the matter on 23rd December, 2021 for hearing. ---------- (2022)05ILR A815 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.03.2022 BEFORE THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. THE HON'BLE AJAI TYAGI, J. First Appeal From Order No. 2907 of 2015 Smt. Malti Pandey & Ors. ...Appellants Versus United India Insurance Co. Ltd. & Ors. ...Respondents 816 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Appellants: Sri Ram Singh, Sri Amit Kumar Singh Counsel for the Respondents: Sri Nagendra Kumar Srivastava, Ms. Anubha Gupta A. Civil Law - Motor Vehicles Act,1988 - Section 168 - Motor Accident claim - Quantum of Compensation - Income - potential of earning of the deceased - deceased 38 years of age & was qualified to be a teacher, he was B.A., B.Ed and was doing Vishist B.T.C. Training - Tribunal considered his income only Rs.3000/- per month - Held - Deceased could have become teacher in any of the government school or private institution - income should be at least Rs.10,000/- per month (Para 10) B. Future Loss of Income - accident of the year 2012 - Tribunal not added any amount under the head of future loss of income - Held - decision of the Apex Court in Pranay Sethi can be made applicable retrospectively - Merely because the deceased was not in job cannot be ground for refraining future loss of income - Self employed means his own vocation or business and not job - Court granted addition of 40% towards future loss of income of the deceased (Para 11) C. Civil Law - Motor Vehicles Act,1988 - Section 168 - Motor Accident claim - Quantum of Compensation - Future Loss of Income - deceased self employed - accident of the year 2012 - judgment of the Tribunal prior to the decision in Pranay Sethi - Tribunal not added any amount under the head of future loss of income - Held - decision of the Apex Court in Pranay Sethi can be applied retrospectively in case the appeal is pending - deceased self-employed & aged about 38 years - Court granted addition of 40% towards future loss of income of the deceased - Multiplier applicable : 15 - deceased was survived by three minor children who have lost their father during their childhood, Rs.50,000/- each to the minor children who lost their father at prime age. - Amount under non pecuniary heads : Rs.70,000 + Rs.50,000 + Rs.50,000+ Rs. 50,000 = 2,20,000 - deceased survived by certain period, hence, the medical expenses of Rs.1,03,210 - respondent-Insurance Company directed to deposit the amount within a period of 12 weeks with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited (Para 11, 12, 15) Allowed. (E-5) List of Cases cited: 1. National Insurance Co. Ltd. Vs Pranay Sethi & ors., 2017 LawSuit (SC) 1093 2. Smt. Meena Pawaia & ors. Vs Ashraf Ali & ors. 2021 0 Supreme (SC) 694 3. National Insurance Co. Ltd. Vs Mannat Johal & ors., 2019 (2) T.A.C. 705 (S.C.) 4. A.Vs Padma Vs Venugopal, Reported in 2012 (1) GLH (SC), 442 5. Smt. Hansaguri P. Ladhani Vs The Oriental Insurance Co. Ltd., reported in 2007(2) GLH 291 6. Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs U.O.I. & ors. (Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J.) 1. Heard Sri Ram Singh, learned counsel for the appellant, Sri N.K. Srivastava, learned counsel for the respondent assisted by Ms. Anubha Gutpa, learned Advocate and perused the record. 2. This appeal, at the behest of the claimants, challenges the judgment and award dated 30.7.2015 passed by the Motor Accident Claims Tribunal/District Judge, Banda (hereinafter referred to as 'Tribunal') in M.A.C.P No.114/70 of 2012 awarding a 5 All. Smt. Malti Pandey & Ors. Vs. United India Insurance Co. Ltd. & Ors. 817 sum of Rs.5,52,210/- as compensation with interest at the rate of 7%. 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 in the year 2012. The deceased was 38 years of age and was qualified to be a teacher, he was B.A., B.Ed and was doing Vishist B.T.C. Training and was having agricultural land. Despite all these qualifications, the Tribunal has considered his income only Rs.3000/- per month, which according to Sri Ram Singh, learned counsel for the appellant should be at least Rs.10,000/- per month. The Tribunal has given reasoning that the appellants have not proved the income of the deceased by cogent evidence. 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 either 40% or 50% looking to the decision of the Apex Court in National Insurance Co. Ltd. Vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093 or in view of Uttar Pradesh Motor Vehicle Rules. 5. 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 and the later decision of the Apex Court as the deceased was survived by three minor children who have lost their father during their childhood and the parents who were dependent on the deceased and has lost their son at a very young age. 6. Learned counsel for the appellant has lastly submitted that the interest awarded by Tribunal is on the lower side and it should be as per the repo rate prevailing in those days. 7. As against this, learned counsel for respondent-Insurance Company has contended that the income which has not been proved cannot be granted. It is submitted by learned counsel for the respondent that the deceased was 38 years of age and, therefore, multiplier of 16 could not have been granted and it 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). 8. It is further submitted by Sri N.K. Srivastava, learned counsel for the respondent assisted by Ms. Anubha Gupta, learned Advocate, that the accident is of the year 2012 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 ad the deceased was self employed. 9. In response to the above objection, Sri Ram Singh, learned counsel for the respondent has again submitted that the decision of the Apex Court in Pranay Sethi (Supra) can be applied retrospectively in case the appeal is pending. 10. Having heard learned counsel for the parties, in the instant case, there are four aspects which will have to be looked into namely, the potential of earning of the 818 INDIAN LAW REPORTS ALLAHABAD SERIES deceased, he was B.A., B.Ed., he was doing Vishist B.T.C. Training and he could have become teacher in any of the government school or private institution. Therefore, in view of the decision of the Apex Court Smt. Meena Pawaia & others Vs. Ashraf Ali and others 2021 0 Supreme (SC) 694, we consider his income to be Rs.10,000/- per month. 11. The submission of Sri N.K. Srivastava, learned counsel for the respondent that non grant of future loss of income is just and proper cannot be countenanced as the decision of the Apex Court in Pranay Sethi (Supra) can be made applicable retrospectively. The submission that the deceased was not in job cannot be countenanced for refraining future loss of income. Self employed means his own vocation or business and not job and, therefore, we grant addition of 40% towards future loss of income of the deceased. However, we are in agreement with the learned counsel for the respondent that the multiplier of 15 should be granted in view of the decision in Sarla Verma (Supra). Deduction of 1/4th is maintained. As far as amount under non-pecuniary heads is concerned, the appellants would be entitled to Rs.70,000/- plus Rs.50,000/- each to the minor children who have lost their father at prime age. The deceased survived by certain period, hence, the medical expenses of Rs.1,03,210/- as granted by the Tribunal is maintained. 12. Hence, the total compensation payable to the appellants is computed herein below: i. Monthly Income: Rs.10,000/- ii. Percentage towards future prospects : 40% namely Rs.4,000/- iii. Total income : Rs.10,000 +4,000 = Rs.14,000/- iv. Income after deduction of 1/4th towards personal expenses : Rs.10,500/- v. Annual income : Rs.10,500 x 12 = Rs.1,26,000/- vi. Multiplier applicable : 15 vii. Loss of dependency: Rs.1,26,000 x 15 = Rs.18,90,000/- viii. Amount under non pecuniary heads : Rs.70,000 + Rs.50,000 + Rs.50,000+ Rs. 50,000 = 2,20,000/- ix. Medical Expenses : 1,03,210/- x. Total compensation : Rs.22,13,210/- 13. 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 5 All. Smt. Priya Rani & Ors. Vs. Ram Sharan & Ors. 819 matter at any rate higher than that allowed by High Court." 14. No other grounds are urged orally when the matter was heard. 15. 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 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. 16. 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 be passed by Tribunal.. 17. 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. 18. 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. 19. 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 10 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R. 20. This Court is thankful to both the counsels for getting this matter decided. ---------- (2022)05ILR A819 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 08.03.2022 BEFORE THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. THE HON'BLE AJAI TYAGI, J. First Appeal From Order No. 3586 of 2012 Smt. Priya Rani & Ors. ...Appellants Versus Ram Sharan & Ors. ...Respondents Counsel for the Appellants: