# Smt. Manju Singh @ Manju Devi & Ors v. U.P.S.R.T.C. & Ors

- **Citation:** (2022) 2 ILRA 361
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-22
- **Case number:** First Appeal From Order No. 2737 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-manju-singh-manju-devi-ors-v-u-p-s-r-t-c-ors-47526
- **Pages:** 10

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Uttar Pradesh Motor Vehicles Rules, 2011
- Rule 220 (a) (3) - Income Tax Act, 1961
- section 194A (3) (ix) - Tax Deducted at
Source - statutory instrument has to be
allowed to operate unless it is found to be
invalid
-

negligence
-
composite
/contributory neglience - principle of
contributory negligence - A person who
either
contributes
or
author
of
the
accident
would
be
liable
for
his
contribution to the accident having taken
place.(Para - 9,12,16,)

Accident between bus of U.P.S.R.T.C. -
vehicle driven by deceased met with an
362 INDIAN LAW REPORTS ALLAHABAD SERIES
accident on fateful day - Appeal preferred by
claimants as well as U.P.S.R.T.C. - challenge -
issue of negligence and compensation -
finding of fact - factum of compensation and
quantum - tribunal granted 20% addition -
multiplier of 12 granted - non-granted of filial
consortium .(Para - 2,3,4)

HELD:-Filial consortium to be 40% to the
wife and by way of love and affection it was
Rs.40,000/- to the son and Rs. 30,000/- for
the other head . Compensation payable to the
appellants Rs. 35,16,256/-. Negligence of the
driver of U.P.S.R.T.C. is considered to be 20%
. U.P.S.R.T.C. can recover 10% from the
owner and Insurance Company of the Truck.
In second appeal it will be recoverable from
either of the tort-feasors. Compensation is
enhanced
to
additional
amount
of
Rs.
1,05,000/- with additional interest of 7.5%
from the date of filing of claim petition till the
said amount is recovered. As far as deceased
is concerned, it is a case of composite
negligence, hence, the amount cannot be
deducted from the compensation awarded to
the claimants who are the heirs of a non tortfeasor. Judgment and award passed by the
Tribunal
shall
stand
modified.
(Para
-
21,23,27 )

Appeal partly allowed.(E-7)

List of Cases cited:-

## Text

2 All. Smt. Manju Singh @ Manju Devi & Ors. Vs. U.P.S.R.T.C. & Ors.
361
mother is Class-I heir while brothers are
Class-II heirs, hence, claimants-appellants
no.2 to 5 shall not be entitled to receive any
amount of compensation and the entire
amount shall be paid to appellant no.1 i.e.
Smt. Kamla (mother of the deceased). If
appellant nos. 2 to 5 have already received
any amount of compensation, it shall be
recovered from them and paid to the
appellant no.1-Smt. Kamla.

17. In view of the above, the appeal is
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.

18. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani vs. The
Oriental
Insurance
Company
Ltd.,
[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.
----------
(2022)02ILR A361
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2021

BEFORE

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

First Appeal From Order No. 2737 of 2014
Connected with
First Appeal From Order No. 2795 of 2014

Smt. Manju Singh @ Manju Devi & Ors.
 ...Appellants
Versus
U.P.S.R.T.C. & Ors. ...Respondents

Counsel for the Appellants:
Sri Rakesh Kumar Porwal, Sri M.M. Sahai

Counsel for the Respondents:
Sri A.A. Khan

(A) Civil Law - Motor Vehicles Act, 1988 -
Uttar Pradesh Motor Vehicles Rules, 2011
- Rule 220 (a) (3) - Income Tax Act, 1961
- section 194A (3) (ix) - Tax Deducted at
Source - statutory instrument has to be
allowed to operate unless it is found to be
invalid
-

negligence
-
composite
/contributory neglience - principle of
contributory negligence - A person who
either
contributes
or
author
of
the
accident
would
be
liable
for
his
contribution to the accident having taken
place.(Para - 9,12,16,)

Accident between bus of U.P.S.R.T.C. -
vehicle driven by deceased met with an
362 INDIAN LAW REPORTS ALLAHABAD SERIES
accident on fateful day - Appeal preferred by
claimants as well as U.P.S.R.T.C. - challenge -
issue of negligence and compensation -
finding of fact - factum of compensation and
quantum - tribunal granted 20% addition -
multiplier of 12 granted - non-granted of filial
consortium .(Para - 2,3,4)

HELD:-Filial consortium to be 40% to the
wife and by way of love and affection it was
Rs.40,000/- to the son and Rs. 30,000/- for
the other head . Compensation payable to the
appellants Rs. 35,16,256/-. Negligence of the
driver of U.P.S.R.T.C. is considered to be 20%
. U.P.S.R.T.C. can recover 10% from the
owner and Insurance Company of the Truck.
In second appeal it will be recoverable from
either of the tort-feasors. Compensation is
enhanced
to
additional
amount
of
Rs.
1,05,000/- with additional interest of 7.5%
from the date of filing of claim petition till the
said amount is recovered. As far as deceased
is concerned, it is a case of composite
negligence, hence, the amount cannot be
deducted from the compensation awarded to
the claimants who are the heirs of a non tortfeasor. Judgment and award passed by the
Tribunal
shall
stand
modified.
(Para
-
21,23,27 )

Appeal partly allowed.(E-7)

List of Cases cited:-

1. UPSRTC Vs Km. Mamta & ors., AIR 2016 SC
948

2. Sarla Verma, 2009 ACJ 1298 (SC)

3. Reshma Kumari, 2013 ACJ 1253 (SC)

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

5. Jacob Mathew Vs St.of Punj., 2005 0 ACJ(SC)
1840)

6. Khenyei Vs New India Assurance Company
Limited & ors., 2015 LawSuit (SC) 469 T.O.

7. Anthony Vs Karvarnan & ors. ,2008 (3) SCC
748
8. Smt. K. Anusha & ors. Vs Regional Manager,
Shriram General Insurance Co. Ltd., 2021 (4)
TAC 341 (SC)

9.
National
Insurance
Company
Ltd.
Vs
Chamundeswari & ors., 2021 (4) TAC 367 (SC)

10. Khenyei Vs New India Assurance Company
Limited & ors., 2015 LawSuit (SC) 469

11. New India Assurance Co.Ltd. Vs Urmila
Shukla & ors., 2021 ACJ 2081

12. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors., 2021 ACJ 2081

13. Rajasthan State Road Transport Corporation
Vs Devi Lal & ors., 1991 ACJ 230,

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

15. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Company Ltd., 2007(2) GLH 291

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

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

1. Heard Sri R.K. Porwal for the
appellant, Sri M.M. Sahai for U.P. State
Road Transport Corporation and Sri A.A.
Khan for the Insurance company in FAFO
No.2737 of 2014 and Sri M.M. Sahai for
the appellant, Sri R.K. Porwal for the
claimant and Sri A.A. Khan for the
Insurance company in FAFO No.2795 of
2014.

2. Both these appeals raise issues
which have to be decided by the Division
Bench in the light of judgment of UPSRTC
Vs. Km. Mamta and others, reported in
AIR 2016 SC 948, and the later judgment.
The appeal, being Appeal No.2737 of 2014
is preferred by the claimants and the
2 All. Smt. Manju Singh @ Manju Devi & Ors. Vs. U.P.S.R.T.C. & Ors.
363
appeal, being Appeal No.2795 of 2014, is
preferred by U.P.S.R.T.C. Both have
challenged what is known as the issue of
negligence. The U.P.S.R.T.C. has raised
the issue of negligence contending that the
Tribunal has committed an error which can
be said to be an error apparent on the face
of record as the site plan, the record and all
the factual data would go to show that the
truck came and dashed with the bus
whereby the driver of the bus and the
passenger
scummed
to
injuries.
The
evidence of PW-2 has also been ignored by
the Tribunal and that is how the judgment
dated 10.7.2014 is bad in the eyes of law.

3. The twin issues raised are the
finding of fact as far as negligence and
compensation is concerned.

4. The skeletal facts are that the
accident between bus of U.P.S.R.T.C. and
the vehicle driven by the deceased met
with an accident on the fateful day i.e.
5.6.2008. All other issues are not required
to be decided except the factum of
compensation and quantum. On 5.6.2008
Sri Raj Bahadur Singh Bhadauriya and
some people, who were travelling from
Kanpur to Orai at that point of time when
the bus passed Orai, a truck, bearing
no.UP93E-6362
came
rashly
and
negligently injuring some and causing
death of bread winner of Manju Devi and
her children.

5. As far as the compensation is
concerned, it is submitted that the judgment
of Sarla Verma, 2009 ACJ 1298 (SC) and
Reshma Kumari, 2013 ACJ 1253 (SC),
will apply and no addition to income will
be allowed whereas Tribunal has granted
20% addition which is bad in the eye of law
and that the multiplier of 12 granted is on
the higher side.

6.

Learned
Counsel
for
the
U.P.S.R.T.C. has taken us through the
assessment
and
requested
that
the
assessment be recalculated in the light of
the settled legal preposition of law.

7. As against this, the appeal preferred
by
the
claimants
relates
to
only
compensation. We now come to the factual
scenario as it emerged.

8. Shri A.A. Khan has taken us to the
site plan and has contended that the facts
are such that there was a head-on collision
and we should attribute 50% - 50%
negligence as there was an injury which
shows that the driver of the bus was equally
negligent.

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.

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,
364 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
2 All. Smt. Manju Singh @ Manju Devi & Ors. Vs. U.P.S.R.T.C. & Ors.
365
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
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
366 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.
2 All. Smt. Manju Singh @ Manju Devi & Ors. Vs. U.P.S.R.T.C. & Ors.
367

(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.

13. In view of this and the recent
decision of the Apex Court in Smt. K.
Anusha
and
others
Vs.
Regional
Manager, Shriram General Insurance Co.
Ltd., 2021 (4) TAC 341 (SC) and National
Insurance
Company
Ltd.
Vs.
Chamundeswari and others, 2021 (4) TAC
367 (SC), the issue of contributory
negligence or composite negligence will
have to be decided as qua the deceased it
was a case of composite negligence but
when the payment of amount is to be
decided, we will have to decide the
percentage of negligence of each driver.
There are 4 facts which emerged from the
facts as per record and evidence. It was not
a case of head-on collision rather the truck
dashed with the bus which was on its
correct side. The driver of the bus may
have crossed the middle of both but was
not to his extreme right (wrong side). The
impact was such that the driver of the bus
died on the spot and the driver of the truck
ran way from the scene of accident. He has
not stepped into witness box. The chargesheet was laid against him. It was on the
highway
that
the
accident
occurred.
Testimonial of all witnesses was permitted
us t disturb the finding of the Tribunal to
hold that only 10% was attributable to the
driver of the bus and 90% was the fault of
the Truck driver insured with the Insurance
company.

14. As far as claimants are concerned,
it will be a case of composite negligence,
hence the judgment of Khenyei Vs. New
India Assurance Company Limited &
Others, 2015 LawSuit (SC) 469, would
apply. The issue of negligence is held in
favour of U.P.S.R.T.C. and against the
Insurance company.

15. This takes us to the issue which
can be said to be the core issue. The
submission of Sri Sahai that the judgment
in Sarla Verma (supra) does not permit
addition of any amount and it is stated that
even if any amount is to be added, it should
be 15% as per the judgment of Sarla Verma
and Pranay Sethi.

16. We cannot accept the submission
for two fold reasons. The Tribunal has
relied on the Uttar Pradesh Motor Vehicle
368 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules, 2011. Rule 220 (a)(3) provides that
20% will be added to the income of the
deceased. This issue after the age of 50 as
per the rule is no longer res-integra as the
Apex Court in New India Assurance
Co.Ltd. Vs. Urmila Shukla and others,
2021 ACJ 2081, has held that judgment of
Pranay Sethi is an indicia but if the
statutory instrument which affords better
and greater benefit then it will prevail as it
is held that the statutory instrument has to
be allowed to operate unless it is found to
be invalid. We do not delve further in the
issue as the learned Tribunal's view in the
afore mentioned judgment. Therefore, para
60 of the said decision, we are obliged to
quote here:-

"The controversy does not end here.
The question still remains whether there
should be no addition where the age of the
deceased is more than 50 years. Sarla
Verma, (2009) ACJ 1298 (SC), thinks it
appropriate not to add any amount and the
same has been approved in Reshma
Kumari, 2013 ACJ 1253 (SC). Judicial
notice can be taken of the fact that salary
does not remain the same. When a person is
in a permanent job, there is always an
enhancement due to one reason or the
other. To lay down as a thumb rule that
there will be no addition after 50 years will
be an unacceptable concept. We are
disposed to think, there should be an
addition of 15% if the deceased is between
the age of 50 and 60 years and there should
be no addition thereafter. Similarly, in case
of self- employed or person on fixed salary,
the addition should be 10% between the
age of 50 and 60 years. The aforesaid
yardstick has been fixed so that there can
be consistency in the approach by the
tribunals and the courts."

and this issue is not dealt further.

17. The recent decisions of the Apex
Court decision in New India Assurance
Co. Ltd. Vs. Urmila Shukla and others,
2021 ACJ 2081, will enure the benefit of
claimants. In our case also the owner and
the driver of the truck before the Tribunal
did not enter into the witness box. The
learned Tribunal has decided this issue on
the basis of the judgment in Rajasthan
State Road Transport Corporation Vs.
Devi Lal and others, 1991 ACJ 230, that it
was a head-on collision. The eye witnesses
have deposed that the accident took place at
7.30 a.m. in the month of June. The injured
PW-2 was also admitted to a hospital. The
fact that the driver of the truck bearing no.
UP93A-6362 came towards the bus without
blowing horn dashed with driver side of the
bus in such a way that it was injured to
certain persons and the deceased died in the
hospital. Though owner and the driver of
the truck filed his reply, he has not stepped
into the witness box. The Insurance
company has also not examined anybody.
In that view of the matter, documentary
evidence appreciated on the same which
will not permit us to concur with the
submission of Sri Sahai that the driver of
the truck was solely responsible.

18. This takes us to the issue of
compensation in the case of Manju Singh
and others, legal representative of the
decision Raj Bahadur Singh Bhadauriya.

19. It is an admitted position even by
the Tribunal that his monthly income was
Rs.54,512/- as per the evidence led before
it and the ocular version of PW-1 as he was
a Professor at Janta Degree College. He
had about 20 - 22 bighas land also and he
was also serving in private institution.

20. The compensation is normally
bases on the pay slip and also the tax which
2 All. Smt. Manju Singh @ Manju Devi & Ors. Vs. U.P.S.R.T.C. & Ors.
369
is paid. The assessment for the year 2007 -
08 has shown that gross total income of Raj
Bahadur
Singh
Bhadauriya
is
Rs.
4,57,504/- as per the acknowledgement.
His income as per the document is Rs.
39,539/- per month. He would have retired
in the year 2013. this is a certificate given
by Principal of Janta Mahavidyalaya
Ajitmal (Auraiya), dated 9.7.2008. His pay
salary is Rs.18,720/-, DA is Rs.9,360/- and
further Rs.11,513/- which is according to
41% DA and he was paying Rs. 890/- as
HRA. The submission that he had an
agricultural land and tuition also is not born
out from the record. The Tribunal,
therefore, cannot be said to have committed
error which can be said to be error in
calculating the income of the deceased at
the time of the accident. Thus, the
submission of Sri Ram Singh that the
income should be considered to be Rs.
55,590/- cannot be accepted.

21. The deduction of 1/3rd is also just
and proper as daughters are major and his
dependant are only wife and son. The only
area which requires reconsideration is nongranted of filial consortium. We ad Rs.
70,000/- + 10% which has been left by
Tribunal in view of the decision of the Apex
Court in Pranay Sethi (Supra). Therefore,
we hold that filial consortium to be 40% to
the wife and by way of love and affection it
was Rs.40,000/- to the son and Rs. 30,000/-
for the other head. Hence, the compensation
payable to the appellants in view of the
decision of the Apex Court in Pranay Sethi
(Supra) is computed herein below:

i. Income Rs.39,539/- (Rounded up
Rs. 39,540/-)

ii. Percentage towards future prospects
: 20% namely Rs.7,908/-

iii. Total income : Rs. 39,540 + 7,908
= Rs. 47,448/-

iv. Income after deduction of 1/3 : Rs.
31,632/-

v. Annual income : Rs.31,632 x 12 =
Rs.3,79,584/-

vi. Multiplier applicable : 9

vii. Loss of dependency: Rs. 3,79,584
x 9 = Rs. 34,16,256/-

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

x.
Total
compensation
:
Rs.
35,16,256/-

22. The additional amount be
deposited in their proportioned by both
tort-feasors by U.P.S.R.T.C. and New India
Assurance Company Ltd. However, if one
deposits, the other will be entitled to
recover.

23. Both these appeals are allowed.
The
negligence
of
the
driver
of
U.P.S.R.T.C. is considered to be 20% and,
therefore, U.P.S.R.T.C. can recover 10%
from the owner and Insurance Company of
the Truck. As far as appellant of appeal,
being
appeal
no.2737
of
2014
are
concerned, it will be recoverable from
either of the tort-feasors. The compensation
is enhanced to additional amount of Rs.
1,05,000/- with additional interest of 7.5%
from the date of filing of claim petition till
the said amount is recovered.

F.A.F.O. No.2737 of 2014

24. In view of the fact that we have
already decided the appeal preferred by
U.P.S.R.T.C., being appeal no.2795 of
2014, the cross objection in the said matter
are disposed of. There is no appeal brought
to our notice against the order of the
Tribunal qua the driver but as we hold that
his negligence was only 20%, then 10%
will have to be deposited by the respondent
in motor accident claim petition filed by the
370 INDIAN LAW REPORTS ALLAHABAD SERIES
driver if at all filed by him, the said amount
be deposited by the Insurance company.

25. As far as issue of rate of interest is
concerned, the interest 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."

26. No other grounds are urged orally
when the matter was heard.

27. In view of the above, the appeal is
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 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. The Insurance
Company who will deposit the entire amount
can have their right to recover the amount
from owner and the Insurance Company of the
other vehicle. As far as deceased is concerned,
it is a case of composite negligence, hence, the
amount cannot be deducted from the
compensation awarded to the claimants who
are the heirs of a non tort-feasor.

28. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291 and this High
Court in , total amount of interest, accrued on
the principal amount of compensation is to be
apportioned on financial year to financial year
basis and if the interest payable to claimant for
any financial year exceeds Rs.50,000/-,
insurance company/owner is/are entitled to
deduct appropriate amount under the head of
'Tax Deducted at Source' as provided u/s 194A
(3) (ix) of the Income Tax Act, 1961 and if the
amount
of
interest
does
not
exceeds
Rs.50,000/- in any financial year, registry of
this Tribunal is directed to allow the claimant
to withdraw the amount without producing the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna and
others Vs. Hari Singh and another) and in First
Appeal From Order No.2871 of 2016 (Tej
Kumari Sharma v. Chola Mandlam M.S.
General Insurance Co. Ltd.) decided on
19.3.2021 while disbursing the amount.

29. The record and proceedings be sent
back to the court below.
----------

(2022)02ILR A370
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Single No. 3066 of 2011

Aliganj Sri Mahaveer Ji Trust ...Petitioner
Versus
The D.J. Lucknow & Ors. ...Respondents