# Smt. Pramila Chopra & Ors v. New India Insurance Company Ltd. & Ors. 1312 INDIAN LAW REPORTS ALLAH

- **Citation:** (2020) 2 ILRA 1311
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** First Appeal From Order No. 456 of 2005
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-pramila-chopra-ors-v-new-india-insurance-company-ltd-ors-1312-indian-law-45662
- **Pages:** 11

## Headnote

A. Civil Law-Motor Accident claim -
Motor Vehicles Act (59 of 1988) -
Composite
Negligence
-
claimant
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

Accident occurred due to negligence of
drivers of jeep and of the matador -
owner, driver and insurer of one of the
vehicle not impleaded - Held - Tribunal not
justified in awarding only half of the
compensation assessed by it from the
insurance company of the vehicle which
was impleaded - claimants are entitled for
whole of the compensation from the Driver
/ Owner / Insurance Company of the
vehicle impleaded who may sue the other
(Para 21)

B. Civil Law-Motor Accident claim -
Motor Vehicles Act (59 of 1988) -
Contributory Negligence - in the case
of contributory negligence the person
himself contributes to the accident

Deceased travelling in the jeep no.UMF
6695 - accident occurred due to negligence
of drivers of jeep no.UMF 6695 and the
driver of the matador no. DBL 6897,
coming from the opposite side - not a case
of contributory negligence - deceased can
not be said to have contributed in the
happening of the accident (Para 18)

C. Civil Law-Motor Vehicles Act (59 of
1988) - S.168 - Just Compensation -
Function of Tribunal/ Court under
S.168 is to award 'just compensation'
- No restriction to Tribunal/Court to
award
compensation in excess
of
amount claimed - "just compensation"
is one which is reasonable, based on
evidence produced on record (Para
17)

Held - Respondent Insurance Company -
directed to pay compensation alongwith
interest @ 8% per annum w.e.f. the date
of filing of petition till the date of
realization. (Para 35)

First Appeal from Order allowed (E-5)

List of cases cited :

## Text

2 All. Smt. Pramila Chopra & Ors. Vs. New India Insurance Company Ltd. & Ors.
1311
final cannot seek the shelter of the aforesaid
decisions relied upon by the claimantrespondents and for the said reason, this Court
rejects the submissions of the learned counsel
for the claimant-respondents.

33. This Court is also fortified in its view
in light of the later judgment of the Apex Court
in the case of Lakshmanan and others Vs. G.
Ayyasamy reported in 2016 (13) SCC 165 and
the relevant portion whereof reads as under:-

"7...Usually the power under Rule
33 is exercised when the portion of the decree
appealed against or the portion of the decree
held liable to be set aside or interfered by the
appellate court is so inseparably connected
with the portion not appealed against or left
untouched that for the reason of the latter
portion being left untouched either injustice
would result or inconsistent decrees would
follow. The power is subject to at least three
limitations: firstly, the power cannot be
exercised to the prejudice or disadvantage of a
person not a party before the court; secondly, a
claim given up or lost cannot be revived; and
thirdly, such part of the decree which
essentially ought to have been appealed
against or objected to by a party and which
that party has permitted to achieve a finality
cannot be reversed to the advantage of such
party. A case where there are two reliefs
prayed for and one is refused while the other
one is granted and the former is not
inseparably connected with or necessarily
depending on the other, in an appeal against
the latter, the former relief cannot be granted
in favour of the respondent by the appellate
court exercising power under Rule 33 of Order
41." (Ram Phal case [Banarsi v. Ram Phal,
(2003) 9 SCC 606] , SCC p. 619, para 15)
(emphasis supplied)

8.
In
support
of
the
same
proposition of law, the learned counsel for the
appellants placed reliance upon another
judgment of this Court in Pralhad v. State of
Maharashtra
[Pralhad
v.
State
of
Maharashtra, (2010) 10 SCC 458 : (2010) 4
SCC (Civ) 212] , wherein this Court after
interpretation of Order 41 Rule 33 CPC has
clearly held that in the absence of an
independent appeal or cross-objection being
filed by the aggrieved party, the relief which
was denied by the courts below cannot be
granted in the second appeal filed by the
appellant."

34. In light of the above and upon
perusal of the judgment/award passed by the
Motor Accident
Claim
Tribunal
dated
18.01.2005, this Court is satisfied that the same
does not suffer from any error and is based on
material evidence available on record and is
accordingly affirmed.

35. In light of the above discussions, the
appeal is devoid of merits and is accordingly
dismissed. In the facts and circumstances, there
shall be no order as to costs. Any amount
deposited with this Court shall be remitted to
the tribunal concerned to be released in favour
of the claimants-respondent in accordance with
the award and the rest amount shall be
deposited by the appellant before the tribunal
concerned within a period of eight weeks from
today.
----------
(2020)02ILR A1311

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2020

BEFORE
THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 456 of 2005

Smt. Pramila Chopra & Ors. ...Appellants
Versus
New India Insurance Company Ltd. &
Ors. ...Respondents
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
K.C. Tripathi, Deepak Kumar Agarwal

Counsel for the Respondents:
Atul Shukla, Pradeep Raje, Sumit Mishra,
U.P.S. Kushwaha

A. Civil Law-Motor Accident claim -
Motor Vehicles Act (59 of 1988) -
Composite
Negligence
-
claimant
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

Accident occurred due to negligence of
drivers of jeep and of the matador -
owner, driver and insurer of one of the
vehicle not impleaded - Held - Tribunal not
justified in awarding only half of the
compensation assessed by it from the
insurance company of the vehicle which
was impleaded - claimants are entitled for
whole of the compensation from the Driver
/ Owner / Insurance Company of the
vehicle impleaded who may sue the other
(Para 21)

B. Civil Law-Motor Accident claim -
Motor Vehicles Act (59 of 1988) -
Contributory Negligence - in the case
of contributory negligence the person
himself contributes to the accident

Deceased travelling in the jeep no.UMF
6695 - accident occurred due to negligence
of drivers of jeep no.UMF 6695 and the
driver of the matador no. DBL 6897,
coming from the opposite side - not a case
of contributory negligence - deceased can
not be said to have contributed in the
happening of the accident (Para 18)

C. Civil Law-Motor Vehicles Act (59 of
1988) - S.168 - Just Compensation -
Function of Tribunal/ Court under
S.168 is to award 'just compensation'
- No restriction to Tribunal/Court to
award
compensation in excess
of
amount claimed - "just compensation"
is one which is reasonable, based on
evidence produced on record (Para
17)

Held - Respondent Insurance Company -
directed to pay compensation alongwith
interest @ 8% per annum w.e.f. the date
of filing of petition till the date of
realization. (Para 35)

First Appeal from Order allowed (E-5)

List of cases cited :

1. Jitendra Khimshankar Trivedi & Ors Vs
Kasam Daud Kumbhar & Ors 2015 (1) TAC 673

2. Ramla Vs National Insurance Company
Limited (2019) 2 SCC 192

3. Khenyei Vs New India Assurance Company
2015 (2) TAC 677 (SC)

4. Rajesh & Ors Vs Rajbir Singh & Ors (2013)
9 SCC 54 / 2013 (3) TAC 679

5.Sandhya Rani Debbarma & Ors Vs The
National Insurance Company Limited & Ors
2016 (4) TAC 165 SC

6.National Insurance Company Limited Vs
Pranay Sethi & Ors (2017) 16 SCC 680

7. Sri Niwas Mani Tripathi & Ors Vs New India
Assurance Company Limited & Ors 2014 (2)
AICC 1066

8. Alok Shankar Pandey Vs Union of India &
Ors AIR 2007 SC 1198

9. Kantibhai Valjibhai Shah Vs Kokilaben & Ors
2011 (3) TAC 112 (Gujarat)

10. New India Assurance Company Limited Vs
Vimla Devi & Ors 2011 (3) TAC 70 (SC)

11.Amrit Lal Sood & Anr Vs Kaushalya Devi
Thaper & Ors 1998 (2) TAC 97 (SC)

12.Shantaben & Ors Vs Yakubbhai Ibrahimbhai
Patel & Ors 2013 (2) TAC 791 (Guj)

(Delivered by Hon'ble Rajnish Kumar, J.)
2 All. Smt. Pramila Chopra & Ors. Vs. New India Insurance Company Ltd. & Ors.
1313

1. Heard, Shri Deepak Kumar,
learned counsel for the appellant and Shri
U.P.S. Kushwaha, learned counsel for the
respondent no.1 New India Assurance
Company Ltd.

2. The instant appeal has been filed
for modification of the judgment and
award dated 17.02.2005 passed in claim
petition no. 35 of 1988; Smt. Pramila
Chopra and others versus New India
Assurance Company Ltd. and others by
Motor
Accident
Claims
Tribunal,
/Additional District Judge, Court no. 1,
Lucknow by means of which the claim
petition has been partly allowed and
enhancement
of
the
amount
of
compensation.

3. The brief facts of the case for
adjudication of the present appeal are that
on 18.06.1988 deceased Madan Chopra
was coming from Bareilly to Kanpur by
Jeep no. UMF-6695. When he reached
near village Dinmayapur Vivku at about
08:30 A.M. within the circle of Police
Station Shahabad, district Hardoi, a
Matador no. DBL-6897 coming from the
opposite side, driven by it's driver rashly
and negligently, dashed the jeep of the
deceased. The Madan Chopra, died on the
spot on account of injuries sustained by
him in the accident. The deceased was
travelling as a passenger in the jeep. The
jeep was being plied on a normal speed.
The entire responsibility of the accident
rests on the owner and the driver of the
matador. The owner of the matador
no.DBL-6897 is responsible vicariously
along with the driver of the matador, and
liable
to
pay
compensation
to
the
respondents/petitioners who are wife, son
and daughter of the deceased. With the
aforesaid the claim petition was filed
claiming compensation.

4. The respondents filed their written
statements. On the basis of pleadings of
the parties, two issues were framed. The
first issue, is as to whether Madan Chopra
died due to rash and negligent driving of
matador no. DBL 6897. The issue was
decided holding that the Madan Chopra
died on 18.06.1988 due to rash and
negligent driving of matador no. DBL
6897 and jeep no. UMF 6695 and the
drivers of both the vehicles are responsible
for the alleged accident, as such, there was
composite negligence of the drivers of
both the vehicles in the accident.

5. The second issue as to whether
the petitioners are entitled to get
compensation, if yes, its amount and
from which of the opposite parties, has
been
decided
assessing
the
total
amount
of
compensation
as
Rs.3,02,980/-. However, the learned
Tribunal held that since there was
composite negligence of both the
drivers
and
the
petitioners
have
claimed compensation only from the
owner, driver and Insurance company
of matador no. DBL 6897, therefore
they are entitled to get only half of the
amount from them and the remaining
amount can be claimed from the other
vehicle.

6. The learned tribunal partly
allowed the claim petition for an amount
of Rs.1,51,490/- along with interest at rate
of 8 per cent per annum from the date of
filing of petition till the realization of the
amount excluding the interest for the
period from 18.05.1994 to 01.05.1999 as
the claim petition was dismissed in default
on
18.05.1994
and
the
restoration
application was moved on 01.05.1999. It
has further been provided that the
compensation shall be realized first from
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondent no. 1 i.e. New India
Assurance Company Ltd and each of the
petitioner shall get one third share.

7. Being aggrieved, the instant
appeal has been filed for enhancement of
the amount of compensation as claimed in
the claim petition and to modify the
judgment and award dated 17.02.2005
passed by the MACT.

8. Learned counsel for the appellant
had submitted that the learned tribunal has
come to the conclusion that the deceased
Madan Chopra had died in the accident
between the matador no. DBL 6897 and
Jeep no. UMP 6695 on account of rash and
negligent driving of their drivers and there
was composite negligence of the drivers of
both the vehicles in the accident. But
wrongly and illegally deducted 50 per cent
of the amount of compensation assessed
by the Tribunal on the ground that the
appellant/claimants
have
claimed
compensation only from the owner, driver
and Insurance company of matador no.
DBL 6897. While it is a settled law that in
the case of composite negligence both are
liable for payment of compensation jointly
and
severely.
Therefore,
the
appellant/claimants
are
entitled
for
payment of the total compensation from
the owner/driver/insurance company of
any of the vehicle involved in the accident
and they are liable to pay the total
compensation and they may recover it
from the other.

9. He had further submitted that the
deceased Madan Chopra was an employee
in the UP Handloom Corporation. He was
getting a salary of Rs. 4376/- per month. In
proof, there of a salary certificate vide
paper no. C-40 issued by the Corporation
was filed, which was also proved by
adducing oral evidence of Shri Kuber Nath
as PW 1 who was an employee in the UP
Handloom
Corporation.
The
learned
tribunal also came to the conclusion that
the total salary of the deceased was Rs.
4376/- but considered only Rs. 3335/- on
the ground that it has been mentioned in
Para 6 of their petition. Once the income
of the deceased was proved by oral as well
as documentary evidence the learned
tribunal ought to have considered the same
for assessing the compensation.

10. He had further submitted that no
future prospects have been allowed while
the appellant is also entitled for the future
prospects and lesser amounts have been
allowed towards conventional heads which
are also liable to be enhanced. The learned
counsel for the appellant lastly submitted
that the learned tribunal has wrongly and
illegally disallowed the interest with effect
from 18.05.1994 to 01.05.1999. While
once the application for recall of the order
and restoration of the claim petition was
allowed,
the
appellant/claimants
are
entitled interest for the whole period.

11. Per contra, learned counsel for
the respondent no.1; insurance company
had submitted that the date of accident in
the instant case is 18.06.1988 and the new
Motor Vehicles Act, 1989 came into effect
w.e.f. 01.07.1989. Therefore, the accident
in question was governed by the Motor
Vehicles Act, 1939 under which the
liability of the insurance company was
limited under section 95(A)(2) to the
extent of Rs.1,50,000/- as the vehicle
insured was a goods vehicle. It was further
submitted that policy was an act policy
and for any additional liability the extra
premium was to be paid, which was not
paid. It was further submitted that since
the awarded sum by the tribunal was Rs.
2 All. Smt. Pramila Chopra & Ors. Vs. New India Insurance Company Ltd. & Ors.
1315
1,51,490/- alongwith interest which has
already been satisfied by the insurance
company, therefore any additional liability,
in case the appeal is allowed, should not
be saddled on the insurance company since
it has already exhausted its liability. He
had also submitted that the applicability of
the old act on the accident in question was
a question of law which need not be
pleaded but the learned tribunal, without
considering the same, has allowed the
claim-petition on the basis of the new act.

12. On the basis of affidavit filed in
compliance of the order passed by this
court learned counsel for the respondent
no.1 had also submitted that in view of the
India Motor Tariff three types of policies
were issued. The comprehensive insurance
of the vehicle and payment of higher
premium on this score does not mean that
the limit of liability with regard to third
party risk becomes unlimited or higher
than the statutory liability. The additional
benefits under the commercial vehicle
tariff were not applicable to motor trade
road risk as per Annexure No.C to the
affidavit. He had also pointed out that
offending vehicle was covered under
Clause A(2) and for any additional liability
the additional premium was to be paid,
which was not paid in the instant policy
therefore
the
answering
insurance
company is not liable to make the payment
of any amount enhanced by this Court. He
had further submitted that interest for the
period from the date of dismissal of the
claim petition up to the date of recall and
restoration of the claim petition is not
admissible because in that there was no
fault of the insurance company. However,
he submitted that in regard to the claim of
the
petitioner
regarding
income
of
Rs.4376/- in place of Rs.3335/- and
composite negligence there is no quarrel.

13. On the basis of above, learned
counsel for the insurance company had
submitted that the appeal is liable to be
dismissed against the answering insurance
company.

14.

I
have
considered
the
submissions of learned counsel for the
parties and perused the record.

15. The undisputed facts are that the
deceased- Madan Chopra had died in the
accident on 18.06.1988 while he was
travelling in jeep no.UMF 6695 and the
driver of the matador no. DBL 6897 came
from the opposite side and dashed the jeep.
The claim petition filed by the appellants
in regard to the accident in question has
been
allowed
and
an
amount
of
Rs.3,02,980/-
has
been
assessed
as
compensation by the learned tribunal out
of which, on account of composite
negligence of the drivers of both the
vehicles, the tribunal has directed to the
respondent insurance company to pay
Rs.1,51,490/- alongwith interest @ 8% per
annum from the date of filing of the
petition till the date of realization
excluding the interest for the period from
18.05.1994 to 01.05.1999, the period
within which the claim petition was
dismissed and application for restoration
was filed.

16. The deceased- Madan Chopra
aged about 52 years was employed as
Marketing Inspector in U.P. Handloom
Corporation. He was getting a salary of
Rs.4676/-. The last pay certificate of the
deceased was filed as paper No.C40. The
salary certificate was proved by Shri
Kuber Nath, PW-1, who was an employee
in the U.P. Handloom Corporation. He has
specifically stated that the deceased was
drawing monthly salary of Rs.4376/- on
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
the date of accident i.e. 18.06.1988. But
since the appellants had mentioned the
income of the deceased as Rs.3335/- in the
claim petition, therefore, that amount has
only been taken into consideration for
assessing
and
calculating
the
compensation, which could not have been
done by the learned tribunal. The deceased
was an employee of the corporation and
his certificate of last pay was filed which
were proved by documentary and oral
evidence
of
an
employee
of
the
Corporation, the same was liable to be
considered
for
determining
the
compensation. It is settled proposition of
law that the tribunal has to consider and
award the just compensation. Therefore,
the
income
of
the
deceased
for
determining the compensation at the time
of accident was Rs.4376/- per month.

17. The Hon'ble Apex Court in the
case of Jitendra Khimshankar Trivedi &
Others Vs. Kasam Daud Kumbhar &
Others; 2015 (1) TAC 673, has observed
that it is obligatory on the part of the
courts / the tribunals to award just and
reasonable compensation. The Hon'ble
Apex Court, in the case of Ramla Vs.
National Insurance Company Limited;
(2019) 2 SCC 192, has held that grant of
amount in excess of claimed is permissible
because a "just compensation" is one
which is reasonable, based on evidence
produced on record.

18.

The
next
question
for
consideration is the deduction of 50% of
the amount of compensation assessed by
the tribunal on account of contributory
negligence of drivers of jeep no.UMF
6695 and the driver of the matador no.
DBL 6897. The present case can not be a
case of contributory negligence because in
the case of contributory negligence the
person himself contributes to the accident
for
which
he
can
not
claim
any
compensation. In the present case the
deceased- Madan Chopra was travelling in
the jeep no.UMF 6695 and as per finding
recorded by the learned tribunal the
accident had occurred due to negligence of
drivers of both the vehicles i.e. the jeep
and the metador. Therefore, the deceased
can not be said to have contributed in the
happening of the accident and it can be on
account of the composite negligence of the
drivers of both the vehicles that the
deceased had died in the accident in
question. It has also been held by the
tribunal that both the drivers were
responsible. However, if the owner, driver
and insurer of the jeep no.UMF 6695 were
not impleaded the learned tribunal was not
justified in determining the extent of
composite negligence of drivers of both
the vehicles in absence of evidence of
other driver and awarded only half of the
compensation assessed by it from the
insurance company of the vehicle which
was impleaded.

19. The learned tribunal, has
recorded a finding that it appears that
alleged accident had occurred on the
middle of the Damar road due to rash and
negligent driving of both the vehicles and
there had been a head on collision between
the two vehicles. It appears that being
impressed by the evidence to the effect
that the accident had occurred on account
of head on collision in the middle of the
road, the learned tribunal has recorded a
finding of negligence by both the drivers
while such finding should have been
recorded on the basis of the cogent
evidence and not on probability. In the
present case the driver of matador has also
given evidence contrary to stand in written
statement which has been categorically
2 All. Smt. Pramila Chopra & Ors. Vs. New India Insurance Company Ltd. & Ors.
1317
recorded by the tribunal therefore it is not
believable at all. Learned counsel for the
respondent insurance company had also
not disputed the fact of composite
negligence in the present case.

20. The Hon'ble Apex Court
considered the difference between the
contributory and composite negligence in
the case of Khenyei Vs. New India
Assurance Company; 2015 (2) TAC 677
(SC) and held that in the case of
contributory negligence a person, who has
himself contributed to the extent, can not
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
and he need not establish the extent of
responsibility
of
each
wrong
doer
separately. The Hon'ble Apex Court in
regard to the claim in the case of
composite negligence and how it is to be
dealt has held as under in paragraph 18:-

" (18) What emerges from the
aforesaid discussion is as follows :

(i) In the case of composite
negligence, plaintiff/claimant is entitled to
sue both or any one of the joint tort
feasors
and
to
recover
the
entire
compensation as liability of joint tort
feasors is joint and several.

(ii) In the case of composite
negligence,
apportionment
of
compensation between two tort feasors vis
a
vis
the
plaintiff/claimant
is
not
permissible. He can recover at his option
whole damages from any of them.

(iii) In case all the joint tort
feasors have been impleaded and evidence
is sufficient, it is open to the court/tribunal
to determine inter se extent of composite
negligence of the drivers. However,
determination of the extent of negligence
between the joint tort feasors is only for
the purpose of their inter se liability so
that one may recover the sum from the
other after making whole of payment to the
plaintiff/claimant to the extent it has
satisfied the liability of the other. In case
both of them have been impleaded and the
apportionment/ extent of their negligence
has been determined by the court/tribunal,
in main case one joint tort feasor can
recover the amount from the other in the
execution proceedings.

(iv) It would not be appropriate
for the court/tribunal to determine the
extent of composite negligence of the
drivers of two vehicles in the absence of
impleadment of other joint tort feasors. In
such a case, impleaded joint tort feasor
should be left, in case he so desires, to sue
the other joint tort feasor in independent
proceedings after passing of the decree or
award."

21. In view of above, this court is of
the considered opinion that since there was
no contribution of the deceased in the
accident in question therefore even if it
was a case of composite negligence he was
entitled to claim it from any one of them
and the compensation could not have been
reduced on the ground that the owner,
driver and insurance company of other
vehicle has not been impleaded. Therefore,
the appellant / claimants are entitled for
whole of the compensation from the
Driver / Owner / Insurance Company of
the vehicle impleaded i.e. the respondents
in the present case, who may sue the other.

22. The learned tribunal has allowed
Rs.2000/-
towards
funeral
expenses,
Rs.5000 towards loss of consortium and
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.2500 towards loss of estate in total
Rs.9500/- which the learned counsel for
the appellants had submitted that they are
liable to be enhanced and the appellants
are also entitled for the future prospects.
Learned counsel for the appellants has
relied on Rajesh & Others Vs. Rajbir
Singh & Others; (2013) 9 SCC 54 / 2013
(3)
TAC
679
and
Sandhya
Rani
Debbarma & Others Vs. The National
Insurance Company Limited & Others;
2016 (4) TAC 165 SC. A constitution
Bench judgment of the Hon'ble Apex
Court after considering several judgments
of the Hon'ble Apex Court in the case of
National Insurance Company Limited Vs.
Pranay Sethi & Others; (2017) 16 SCC
680 has overruled the case of Rajesh &
Others (Supra) and in para 59.8 held that
the reasonable figures on conventional
heads namely loss of estate, loss of
consortium and funeral expenses shall be
Rs.15,000/-, Rs.40,000/- and Rs.15,000/-
respectively. Therefore, this court is of the
view that the appellants are entitled for
Rs.15,000/-, Rs.40,000/- and Rs.15,000/-
towards loss of estate, loss of consortium
and funeral expenses respectively in place
of Rs.2500/-, Rs.5000/- and Rs.2000. The
appellants are also entitled for addition of
15% towards future prospects in view of
paragraph 59.3 of the said Constitution
Bench judgment as the deceased was 52
years of age.

23. The learned tribunal has allowed
the interest @ 8% per annum from the date
of filing of the claim petition till the date
of realization excluding the interest from
the date of 18.05.1994 to 01.05.1999 on
the ground that the claim petition was
dismissed
on
18.05.1994
and
the
application for restoration was filed on
01.05.1999. It is not permissible once the
application for restoration was allowed
after considering the ground sufficient in
the application. The Division Bench of this
Court in the case of Sri Niwas Mani
Tripathi and Others Vs. New India
Assurance Company Limited and Others;
2014 (2) AICC 1066 has held as under in
paragraph 33:-

"(33). Further this is sufficient
ground to interfere in the appeal filed for
enhancement of the award to the extent
that the interest would not be applicable
for the period, when the claim was
dismissed. We find that the restoration
application is allowed only when the Court
finds
sufficient
grounds
for
nonappearance of the claims, where the
claimants have shown good and sufficient
cause, they cannot be blamed or denied
subsequently with the interest on the
amount
awarded
to
them
as
compensation."

24. The Hon'ble Apex Court in the
case of Alok Shankar Pandey Vs. Union
of India and Others; AIR 2007 SC 1198
has held that interest is not a penalty or
punishment at all but it is a normal
accretion on capital. For example if A had
to pay B a certain amount, say 10 years
ago, but he offers that amount to him
today, then he has pocketed the interest on
the principal amount. Had A paid that
amount to B 10 years ago, B would have
invested that amount somewhere and
earned interest thereon, but instead of that
A has kept that amount with himself and
earned interest on it for this period. Hence
equity demands that A should not only pay
back the principal amount but also the
interest thereon to B.

25. In view of above, this court is of
the considered opinion that the learned
tribunal has erred in deducting the interest
2 All. Smt. Pramila Chopra & Ors. Vs. New India Insurance Company Ltd. & Ors.
1319
for the period from 18.05.1994 to
01.05.1999 and the appellants are entitled
for the interest awarded by the tribunal
w.e.f. the date of filing of the claim
petition till the date of realization.

26. In view of above, this court is of
the considered opinion that the claimantappellants are entitled for enhancement of
the compensation. Thus, the claimantappellants are entitled to get Rs.4,376 +
(15%
of
Rs.4,376)
Rs.656.40
=
Rs.5,032.40 x 12 x 11 = Rs.6,64,276.80
and
by
deducting
1/3rd
(6,64,276.80x1/3=2,21,425.60)
amount,
the
payable
amount
comes
to
Rs.4,42,851.20. The appellants are also
entitled to get Rs.15,000/-, Rs.40,000/- and
Rs.15,000/- respectively towards loss of
estate, loss of consortium and funeral
expenses. Thus, the total amount of
compensation comes to Rs.512851.20,
which is to be paid alongwith interest @
8% awarded by the tribunal w.e.f. the date
of filing of the petition till the date of
realization after adjusting the amount
already paid.

27. Adverting to the question of plea of
the learned counsel for the respondent no.1
regarding limited liability of Rs.1,50,000/-
under Section 95(2)(A) of the Motor Vehicles
Act, 1939, this court finds that this plea was
neither raised before the tribunal nor such
objection has been filed before this court. This
plea was raised during course of arguments. It
can not be said to be a purely question of law
because it was required to be pleaded that what
type of policy was issued by the insurance
company for the vehicle in question and as to
whether any additional premium was paid or
not towards the additional liability for claiming
benefit of limited liability. On the other hand
the insurance company has satisfied the award
of Rs.1,51,490/- alongwith interest @ 8% per
annum awarded by the tribunal which is much
more than Rs.1,50,000/-, without any demur.
However, Since a plea was raised at the time of
arguments therefore this court had directed to
file an affidavit explaining the position.

28. In compliance thereof an affidavit
was filed annexing some photo copies of
Motor Insurance Rating Guide which has been
referred as India Motor Tariff and a photo copy
of the Guide Book for Motor Insurance Under
Writing containing the Motor Insurance Rating
Guide was produced. On the top of which
private and confidential (for use by employee
and field staff of the company only) is
mentioned.
Therefore,
the
respondent
insurance company is trying to take a shelter
for non-payment of the additional amount over
and above Rs.1,50,000/- on the basis of a
document which is private and confidential
while it has already paid the compensation
more than Rs.1,50,000/-.

29. Paper No. C-36/1, which is a
copy of the insurance certificate of vehicle
matador no.DBL-6897 involved in the
accident
in
question,
indicates
that
Rs.240/- has been charged as premium for
third party alongwith an additional sum of
Rs.16/- and Rs.08/-, as such total of
Rs.264/- has been charged alongwith
premium of comprehensive . The policy is
a comprehensive policy. In terms of
Section 95(2)(A) of the Motor Vehicles
Act, 1939 the insurance company is
obliged to satisfy the liability to an extent
of Rs.1,50,000/- in so far as goods carriage
vehicle is concerned unless an additional
premium is paid for additional liability.

30. The Motor Insurance Rate Guide
filed by the respondent insurance company
sets out the provisions relating to the
benefits under the Motor Insurance, types
of insurance policy and payment of
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
premium, the relevant portion of which
has been filed alongwith the affidavit and
a photo copy was produced at the time of
arguments. As per the definition of the
three types of policy, each one of them are
distinct and separate. In the present case
this court is concerned with the first type
of policy which is a comprehensive
insurance policy which provides the
contingencies of loss or damage to the
damaged vehicle subject to the limitation
mentioned in the policy and liability to the
public risk including Act liability.

31. The provision of India Motor
Tariff indicates that the premium of
Rs.200/- is the premium for the Act only
and Rs.240/- for the liability to the public
risk. So far as the plea of the respondent
counsel regarding non-applicability of the
additional benefit under the commercial
vehicle tariff is concerned, it is mentioned
in paragraph-11 of Annexure No.C filed by
the appellants that the benefits mentioned
herein may not be insured separately but
only
in
conjunction
with
a
"Comprehensive" or "liabilities to the
public risk" policies only by charging extra
premium as stated above. Above that in
N.B.2, it is mentioned that the rates are
subject to minimum of Rs.75/- for
comprehensive cover, Rs.40/- for liability
to the public risks and Rs.25/- for 'Act
only Cover'. In the present case Rs.240/-
has been charged for the third party
towards the liability to the public risk but
the learned counsel for the appellant had
failed to clarify as to when Rs.240/- has
been charged towards liability to the
public risk and Rs.200/- is for Act only
Policy then how the liability of the
respondent insurance company is limited
only to Rs.1,50,000/-. Therefore, it is
apparent that the premium for public risk
was charged which was with additional
premium to Act only therefore the
contention of the learned counsel for the
respondent insurance company regarding
limited liability is misconceived and for
enhanced liability a sum of Rs.240/- was
charged and it is nothing but implicit
agreement between the owner and the
insurance company for taking additional
and extra premium for covering the public
risk.

32. The Gujarat High Court in the
case of Kantibhai Valjibhai Shah Vs.
Kokilaben & Others; 2011 (3) TAC 112
(Gujarat) has considered the India Motor
Tariff and it has recorded that only in
respect of the common policy a sum of
Rs.200/-
is
chargeable
whereas
for
enhanced liability a sum of Rs.240/- is
charged and it is nothing but implicit
agreement between the owner as well as
insurance company for taking additional
and extra premium for covering the public
risk. Therefore, the extra premium was
charged for covering the public risk which
includes unlimited liability.

33. Perusal of the policy (Paper
No.C-36/1) also indicates that it contains
"avoidance of certain terms and right of
recovery" clause which is given in Paper
No.C-68
issued
by
the
respondent
insurance company which provides that
nothing in this policy or any endorsement
thereon shall affect the right of any person
indemnified by this policy or any other
person to recover an amount under or by
virtue of provisions of the Motor Vehicles
Act, 1939, Section 96. But the insured
shall repay to the company all sums paid
by the company which the company would
not have been liable to pay but for the said
provisions. Therefore, even in the case of
limited liability the insurance company is
liable to discharge the entire liability of
2 All. Smt. Urmila Devi & Ors. Vs. Nathuni Ray & Ors.
1321
compensation but the insured would have
to repay to the company all the sums paid
by the company which is in excess of its
liability under the policy of insurance.

34. The Hon'ble Apex Court in the case
of New India Assurance Company Limited
Vs. Vimla Devi & Others; 2011 (3) TAC 70
(SC) after considering the aforesaid avoidance
clause, and referring to the decision in the case
of Amrit Lal Sood & Another Vs. Kaushalya
Devi Thaper & Orthers;1998 (2) TAC 97
(SC) held that the insurance company was
rightly directed by the High Court to make
payment of the full amount of compensation
and to recover the excess amount from the
owner of the motor vehicle. A full Bench of
Gujarat High Court in the case of Shantaben
& Others Vs. Yakubbhai Ibrahimbhai Patel
& Others; 2013 (2) TAC 791 (Gaj.) and
framed the question for consideration in
paragraph-25 and answered the same in
paragraph-41, which are extracted below:-

"25. Having thus heard the learned
counsel for the parties, short question that
calls for consideration is whether the
Insurance Company can be directed to
discharge the entire liability of compensation
fixed by the claims tribunal or whether the
liability of the Insurance Company would be
restricted too the statutory liability of
Rs.50,000/- prevailing at the relevant time."

"41. Our answer to the question
farmed is that wherever the insurance policy
contains an avoidance clause providing that
nothing in the policy shall affect the right of
any person indemnified by the policy or any
other person by recovering amount under or
by virtue of provisions of Motor Vehicle Act,
but further requires insured to repay to the
Insurance Company all such sums paid by the
company which the company would not have
been liable to pay, but for this provision, the
Insurance Company cannot press in service
the statutory limit of liability under the Motor
Vehicles Act insofar as the claimants are
concerned. But the insured would have to
repay to the company all the sums paid by the
company which is in excess of its liability
under the policy of insurance."

35. In view of above, this Court is of the
considered opinion that the appeal is liable to
be allowed and the impugned judgment and
award modified and the respondent insurance
company is liable to pay the entire amount of
compensation. Accordingly, the judgment and
award dated 17.02.2005 passed in claim
petition no. 35 of 1988; Smt. Pramila Chopra
and others versus New India Assurance
Company Ltd. and others by Motor Accident
Claims Tribunal, /Additional District Judge,
Court no. 1, Lucknow is modified. The
respondent no.1 / New India Assurance
Company
Ltd.
shall
pay
amount
of
compensation to the tune of Rs.5,12,851.20
alongwith interest @ 8% per annum w.e.f. the
date of filing of petition till the date of
realization, after adjusting the amount already
paid within a period of six weeks from today.

36. The appeal is, accordingly, allowed.
No order as to costs.
----------
(2020)02ILR A1321

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

First Appeal From Order No. 2200 of 2014

Smt. Urmila Devi & Ors. ...Appellants
Versus
Nathuni Ray & Ors. ...Respondents

Counsel for the Appellants: