# Smt. Minakshi Srivastava & Ors v. Dheeraj Pandey & Ors

- **Citation:** (2022) 4 ILRA 1027
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-11
- **Case number:** First Appeal From Order No. 3425 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-minakshi-srivastava-ors-v-dheeraj-pandey-ors-48360
- **Pages:** 7

## Headnote

Sri Bajrang Bahadur Singh

Appellants have challenged the impugned award
and decision
-- illegal, arbitrary, without
application of mind and cannot be sustained in
the eyes of law -- injuries suggest that the
driver of Minibus was driving the vehicle rashly
and negligently -- issue is answered in the
positive and in favour of the appellants --
principle of contributory negligence has been
discussed time and again -- next issue which
arises is that the matter has remained pending
for long -- Total compensation - issue of rate of
interest is concerned, it should be 7.5% .

Appeal allowed. (E-9)

List of Cases cited:

## Text

4 All. Smt. Minakshi Srivastava & Ors. Vs. Dheeraj Pandey & Ors.
1027
Ltd.)
decided
on
19.3.2021,
while
disbursing the amount.
----------
(2022)04ILR A1027
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

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

First Appeal From Order No. 3425 of 2016

Smt. Minakshi Srivastava & Ors.
 ...Appellants
Versus
Dheeraj Pandey & Ors. ...Respondents

Counsel for the Appellants:
Sri Satya Deo Ojha, Sri Shashi Prakash Rai

Counsel for the Respondents:
Sri Bajrang Bahadur Singh

Appellants have challenged the impugned award
and decision
-- illegal, arbitrary, without
application of mind and cannot be sustained in
the eyes of law -- injuries suggest that the
driver of Minibus was driving the vehicle rashly
and negligently -- issue is answered in the
positive and in favour of the appellants --
principle of contributory negligence has been
discussed time and again -- next issue which
arises is that the matter has remained pending
for long -- Total compensation - issue of rate of
interest is concerned, it should be 7.5% .

Appeal allowed. (E-9)

List of Cases cited:

1. Varinderjit Singh Vs Tajinder Singh & ors.
MANU/PH/0594/2007

2. Bhanwar Lal Verma Vs Sharad Tholia & ors.
MANU/RH/0672/2005

3. Kusum Lata & ors. Vs Satbir & ors.
MANU/SC/0165/2011
4.
Saroj
&
ors.
Vs
Het
Lal
&
ors.
MANU/SC/1041/2010

5. Vimla Devi & ors. Vs National Insurance
Comp. Ltd. & ors. MANU/SC/1290/2018

6. Sunita & ors. Vs Rajasthan State Road
Transport Corp. & ors. MANU/SC/0204/2019

7. Rylands v Fletcher MANU/UKHL/0001/1868

8. Jacob Mathew Vs State of Punjab & ors.
MANU/SC/0457/2005

9. Bithika Mazumdar & ors. Vs Sagar Pal & ors.
MANU/SC/0152/2017

10. National Insurance Comp. Ltd. Vs Pranay
Sethi & ors. MANU/SC/1366/2017

11. Sarla Verma & ors. Vs Delhi Transport
Corporation & ors. MANU/SC/0606/2009

12. National Insurance Comp. Ltd. Vs Mannat
Johal & ors. MANU/SC/0589/2019

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

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

1. Heard Sri Shashi Prakash Rai,
learned counsel for the appellants, Sri
Bajarang Bahadur Singh, learned counsel
for the owner-respondent no.1. None
present on behalf of driver-respondent
no.2 and insurance company-respondent
no.3.

2. By way of this appeal the
appellants have felt aggrieved by the order
passed by Claims Tribunal, whereby the
Claims tribunal dismissed the claim
petition being M.A.C.P. No. 21 of 2015.
1028 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Brief facts of the case culled out
from the record are that, on 23.11.2014 at
about 6.30 p.m. when the deceased was
plying his Hero Honda motorcycle bearing
No. U.P. 63 L/0421 and was going from
Pathkhura to his house at that time near
Paramhans Ashram respondent no.2 drove
Minibus bearing No. U.P. 65 R/9955 and
rashly and negligently dashed with the
motorcycle and the deceased came under
the bus and his motorcycle was also
damaged. The people around him called
108 ambulance and he was sent to Rajgarh
Community Centre but as he was serious he
was sent to Sadar Hospital, Mirzapur, there
also he was not treated but he was sent to
Popular Hospital, Varanasi where he was
admitted but as his health did not improve
he was moved to B.H.U. hospital, where
during treatment on 25th November 2014
he breathed last and succumbed to the
injuries. On his death, his family was under
shock, they could not lodge the first
information report in time. The first
information report was lodged by his
brother on filing of the claim petition the
respondent Nos. 1 and 2 filed their reply,
which was one of negation contending that
the vehicle was not involved in the accident
and that the vehicle was permitted to ply
between Mirzapur to Ghazipur and his
vehicle could not have been at the place
where the accident took place. The police
took the vehicle and filed the charge-sheet.
Later on, the driver of the Minibus was
charge-sheeted and he was released on bail,
is an admitted position of fact which has
been brushed aside by the Tribunal. The
respondent no.3 insurance company on the
contrary took a stand that it was the
deceased who was negligent and he dashed
with the bus. The Tribunal framed five
issues. The first and the fifth issue has been
held against the appellants. The written
statement of the insurance company ought
to have been looked into by the Tribunal
before brushing aside the judgment and not
relying
on
the
authoritative
pronouncements in Varinderjit Singh Vs.
Tajinder Singh & others, 2008 (4) TAC
250 Punjab and Haryana, Devi Prasad
Vs. Zahur Khan, 2001 (2) TAC 419
Madhya Pradesh, and Bhanwar Lal
Verma Vs. Sharad Dholiya, 2007 ACJ
52.

4. The appellants have challenged the
impugned award and decision on the
following amongst grounds that the order
passed by the Tribunal is illegal, arbitrary,
without application of mind and cannot be
sustained in the eyes of law.

5. It is submitted by learned counsel
for the appellants that the court below has
failed to consider, while passing the
impugned
order,
that
the
insurance
company of the vehicle/ respondent no.3
admitted that the accident took place by his
vehicle
but
contended
that
accident
occurred due to negligence of deceased. In
support of his arguments, Sri S.D. Ojha,
learned counsel for the appellants has relied
on the following decisions in (i) Kusum
Lata and others Vs. Satbir and others,
2011 (2) Supreme 207; (ii) Saroj and
others Vs. Het Lal and others, (2011) 1
SCC 388; and (iii) Vimla Devi and others
Vs.
National
Insurance
Company
Limited and others, 2019 (133) ALR 768;
Sunita and others vs. Rajasthan State
Road
Transport
Corporation
and
another AIR 2019 SC 994 so as to
contend
that
the
petition
has
been
dismissed by assigning reasons which are
not germane.

6. It is further submitted in reply that
it was the driver of the motorcycle, who
was driving the vehicle rashly and
4 All. Smt. Minakshi Srivastava & Ors. Vs. Dheeraj Pandey & Ors.
1029
negligently. The facts prove that the vehicle
Minibus was involved in the accident.

7. The claimants examined the widow
of the deceased, PW 2 Ikbal Ahmad, who
was an eye witness and PW 3 Kamlesh
Kumar Srivastava, who had lodged the first
information
report.
As
far
as
the
respondents are concerned, DW 1 has been
examined. The appellants filed chick F.I.R.,
post-mortem
report,
report
of
the
Panchnama, the release memo of the Mini
Bus, death certificate of the deceased,
medical certificate of Mirzapur doctor,
Popular Hospital and death certificate by
Tehsildar of Chunar. The voter I.D. and all
other documentary evidence to prove
involvement of vehicle and the income of
the deceased were also produced. The
respondent no.1 filed the fitness certificate,
permit, insurance and the driving licence of
the driver.

8. The respondent no.3 did not
examine any witness. The Tribunal has
dismissed the claim petition despite the fact
that the respondent insurance company had
taken the plea that the accident occurred
due to the negligence of the driver, who
had lost his balance. The Tribunal did not
believe the testimony of the wife as she did
not disclose, who gave her number of
Minibus. It is held that PW 2 cannot be
accepted as an eye witness as he also did
not give the number of the bus and that the
first information report was against an
unknown vehicle and therefore, the chargesheet was not acceptable.

9. The evidence on record which has
been brushed aside by the Tribunal is
without any basis. The PW 1 did not give
the name, number of vehicle involved. The
chick F.I.R. did not give the number of
Minibus and that PW 3 who registered the
F.I.R. also did not give the number of
Minibus. The fact that the evidence of all
these three witnesses have not been
controverted even except the filing of
written statement by the owner. The driver
of the vehicle never complained that he has
falsely implicated. The F.I.R. also states
that Minibus was involved in the accident.
The charge-sheet is a prima facie proof of
involvement of the vehicle, the owner no
where contends that his bus was not on the
road.

10. On the contrary, while going
through the record, it is very clear that the
vehicle had permit to ply at the place where
the accident occurred and therefore, the
statement of the owner could not have been
believed. The route permit discussed by the
learned Tribunal also goes to show that the
vehicle was having a permit to ply on the
road which is in the accident. The fitness
certificate and permit is there from
Mirzapur to Ghazipur via Chunar Varanasi
Saidpur and therefore, they contend that the
vehicle did not have permit to ply on the
said road is also a wrong statement on the
record made by the owner against whose
driver
charge-sheet
is
led,
thus
on
preponderance of probability the finding of
the Tribunal cannot be accepted. We
quantified in our view by the judgment of
Apex Court in the case of Sunita (Supra).
The recent judgement of the division bench
in the case of First Appeal From Order
No.1902 of 2010 (Ranjeet Singh v.
Oriental
Insurance
Co.
Ltd.
and
another) decided on 4.3.2022 will enure
for the benefit of the appellant's herein.

11. In view of the above, we cannot
concur with the learned Judge that it was
not proved that the driver of the mini bus
had not driven the bus rashly and
negligently. The injuries suggest that the
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
driver of Minibus was driving the vehicle
rashly and negligently. Hence, the said
issue is answered in the positive and in
favour of the appellants.

12. The appreciation of evidence as
held by the Apex Court in the case of
Kusum Lata, Saroj and Vimla Devi
(supra) will not permit us to concur with
the learned Tribunal. The finding is
perverse.

13. Having heard the learned counsel
for the parties, let us consider the issue of
negligence from the perspective of the law
laid down.

14. 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.

15. 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.

16. 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.
4 All. Smt. Minakshi Srivastava & Ors. Vs. Dheeraj Pandey & Ors.
1031

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
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

17. The next issue which arises is that
the matter has remained pending for long,
the record and proceedings are before this
Court and the matter whether be remanded
to the Tribunal or decided here? The
answer is in the affirmative as per the
judgments of the Apex Court in Bithika
Mazumdar and another Vs. Sagar Pal
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
and others, (2017) 2 SCC 748 and of this
Court in F.A.F.O. No. 1999 of 2007
(Oriental Insurance Company Limited
vs. Smt. Ummida Begum and others) and
in F.A.F.O. No. 1404 of 1999 (Smt.
Ragini Devi and others Vs. United India
Insurance
Company
Limited
and
another) decided on 17.4.2019 where in it
has been held that if the record is with the
appellate Court, it can decide compensation
instead of relegating the parties to the
Tribunal.

18. Hence, as far as quantum is
concerned, this Court after hearing the
learned counsels for the parties and
perusing the judgment and order impugned,
finds
that
the
deceased
was
even
hospitalised for quite some time and he was
earning Rs.33,523/-per month by way
salary
as
he
was
Lekhpal,
namely
Rs.4,02,276/- per year. To which, as the
deceased was 47 years of age, 30% of the
income requires to be added in view of the
decision in National Insurance Company
Limited Vs. Pranay Sethi and Others,
2017 0 Supreme (SC) 1050. Further, one
third requires to be deducted as his personal
expenses as he was survived by his wife
and three minor daughters aged about 19,
16 and 13 years. As the deceased was in the
age bracket of 47 years, the applicable
multiplier would be 13 in view of the
decision in Sarla Verma Vs. Delhi
Transport Corporation, (2009) 6 SCC
121. In addition to that, Rs.75,000/- is
granted towards conventional heads.

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

i. Income : Rs.33,523/- (Rs.4,02,276/-
per year)

ii. Percentage towards future prospects
: 30% namely Rs.10,057/- (rounded up)

iii. Total income : Rs.33,523 + 10,057
= Rs.43,530/-

iv. Income after deduction of 1/3rd
towards personal expenses of the deceased
: Rs.29,020/-

v. Annual income : Rs.29,020 x 12 =
Rs.3,48,240/-

vi. Multiplier applicable : 13

vii. Loss of dependency: Rs.3,48,240
x 13 = Rs.45,27,120/-

vii. Amount under non pecuniary
damages : Rs.75,000/-

viii.
Total
compensation
:
Rs.46,02,120/-

20. 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."

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

22. In view of the above, the appeal is
allowed. Judgment and order passed by the
Tribunal is set aside. The respondentInsurance Company shall deposit the
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