# Smt. Praveen Rawat & Ors v. Anuroop Singh & Anr

- **Citation:** (2022) 5 ILRA 679
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-29
- **Case number:** First Appeal From Order No.930 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-praveen-rawat-ors-v-anuroop-singh-anr-48575
- **Pages:** 10

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, & 168 - Motor Accident
claim - deceased was traveling in car, all
of sudden, a blue bull (Neelgay) came on
the way - driver tried to save the blue bull
and in that process dashed the car into the
tree - In the accident deceased sustained
serious injuries and died - Tribunal denied
the compensation for the death in a road
accident, holding the accident to be the
result of 'Act of God', and awarded only
Rs.50,000/- for no fault liability - Issue -
question is if the blue bull come on the
road before a vehicle whether it can be
termed as "Act of God" or it was human
negligence ? - Held - accident may happen
by reason of the play of natural forces or
by intervention of human agency or by
both - It may be that in either of these
cases accidents may be inevitable - But it
is only those acts which can be traced to
natural forces and which have nothing to
do with the intervention of human agency
that could be said to be Acts of God -
Coming of blue bull on the road before a
vehicle, as in the case on hand, cannot be
termed as Act of God - In the instant case
car dashed into tree, when the driver tried
to save the blue bull from hitting the car,
which goes to show that the car was being
plied at a high speed - Had the car being
driven at normal speed, the accident could
have been avoided or its impact could be
minimized - This fact itself shows the
negligence of the driver, who was driving
the vehicle at an excessive speed - finding
of learned Tribunal holding the accident to
be the result of Act of God is not
sustainable in the eye of law - Court held
that the accident had taken place due to
the negligence of the driver of the vehicle
involved in the accident (Para 18, 20)

Allowed. (E-5)
List of Cases cited:

## Text

5 All. Smt. Praveen Rawat & Ors. Vs. Anuroop Singh & Anr.
679

20. The officer concerned of the
U.P.S.R.T.C. may instruct the counsel for
conciliation in the matters which are
covered by the judgment of the Apex Court
and this Court which are only for
enhancement purposes so that they can
save interest.
----------
(2022)05ILR A679
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2022

BEFORE

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

First Appeal From Order No.930 of 2021

Smt. Praveen Rawat & Ors. ...Appellants
Versus
Anuroop Singh & Anr. ...Respondents

Counsel for the Appellants:
Anju Shukla, Sri Nigamendra Shukla

Counsel for the Respondents:
Sri Rahul Sahai

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, & 168 - Motor Accident
claim - deceased was traveling in car, all
of sudden, a blue bull (Neelgay) came on
the way - driver tried to save the blue bull
and in that process dashed the car into the
tree - In the accident deceased sustained
serious injuries and died - Tribunal denied
the compensation for the death in a road
accident, holding the accident to be the
result of 'Act of God', and awarded only
Rs.50,000/- for no fault liability - Issue -
question is if the blue bull come on the
road before a vehicle whether it can be
termed as "Act of God" or it was human
negligence ? - Held - accident may happen
by reason of the play of natural forces or
by intervention of human agency or by
both - It may be that in either of these
cases accidents may be inevitable - But it
is only those acts which can be traced to
natural forces and which have nothing to
do with the intervention of human agency
that could be said to be Acts of God -
Coming of blue bull on the road before a
vehicle, as in the case on hand, cannot be
termed as Act of God - In the instant case
car dashed into tree, when the driver tried
to save the blue bull from hitting the car,
which goes to show that the car was being
plied at a high speed - Had the car being
driven at normal speed, the accident could
have been avoided or its impact could be
minimized - This fact itself shows the
negligence of the driver, who was driving
the vehicle at an excessive speed - finding
of learned Tribunal holding the accident to
be the result of Act of God is not
sustainable in the eye of law - Court held
that the accident had taken place due to
the negligence of the driver of the vehicle
involved in the accident (Para 18, 20)

Allowed. (E-5)
List of Cases cited:

1. Anita Sharma & ors. Vs The New India
Assurance Co. Ltd. & anr., (2021) 1 SCC 171

2. Parmeshwari Vs Amir Chand, (2011) 11 SCC
635

3. Reliance General Insurance Co. Ltd. Vs
Subbulakshmi & ors. C.MA. No. 1482 of 2017
[C.M.P. No. 7919 of 2017. (CMA Sr. No. 76893
of 2016)]

4. Puspabai Purshottam Udeshi Vs Ranjit
Ginning & Pressing Co., 1977ACJ 343 (SC)

5. Bimla Devi & ors. Vs Himachal RTC reported
in 2009 (13) SCC 530

6. Nugent Vs Smith. (1876- 1 CPD 423)

7. Rylands Vs Fletcher, 1868 Law Reports (3) HL
330

8. Bithika Mazumdar & anr. Vs Sagar Pal & ors.,
(2017) 2 SCC 748
680 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Oriental 9 Insurance Co. Ltd. Vs Smt.
Ummida Begum & ors. F.A.F.O. No. 1999 of
2007

10. Smt. Ragini Devi & ors. Vs United India
Insurance Company Ltd. & anr. F.A.F.O. No.
1404 of 1999

11. National Insurance Co. Vs Pranay Sethi
[2014 (4) TAC 637 (SC)

12. Smt.Sarla Verma Vs Delhi Transport Corp.
[2009 (2) TAC 677 (SC)]

13. Kurvan Ansari @ Kurvan Ali & anr. Vs Shyam
Kishore Murmu & anr. [2021 (4) TAC (SC)]

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 Co. Ltd., [2007(2) GLH 291]

16. Smt. Sudesna & ors. Vs Hari Singh & anr.
Review Application No.1 of 2020 in First Appeal
From Order No.23 of 2001

17. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd. First Appeal From
Order No.2871 of 2016 decided on 19.3.2021

18. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs U.O.I. & ors., vide order dated 27.01.2022

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

1. This appeal has been preferred by
the
claimants-appellants
against
the
judgment & award dated 12.09.2007
passed by learned Motor Accident Claims
Tribunal/Additional District Judge, Court
No.3,
District
Ghaziabad
in
Motor
Accident Claim Petition No.232 of 2005
(Smt. Praveen Rawat and Others Vs.
Anuroop Singh and another), whereby the
learned
Tribunal
has
denied
the
compensation for the death of Dinesh
Kumar Singh Rawat in a road accident,
holding the accident to be the result of
''Act
of
God',
and
awarded
only
Rs.50,000/- for no fault liability.

2. The claimants-appellants have
preferred this appeal for enhancement of
quantum of compensation.

3. The brief facts of the case are that
claimants-appellants
filed
a
Motor
Accident Claim Petition before the
Tribunal for seeking the compensation
under Motor Vehicles Act, 1988 for the
death of Dinesh Kumar Singh Rawat
(deceased) in a road accident with the
averments that on 28.12.2004 at about
7:00 PM the deceased was traveling from
Lucknow
to
Lakhimpurkhiri
in
car
bearing no. U.P. 32 X 3366. The driver of
the car was driving the vehicle very
rashly and negligenlty and at a very high
speed, all of sudden, a blue bull
(Neelgay) came on the way. The driver
tried to save the blue bull and in that
process dashed the car into the tree. After
dashing into the tree, the car overturned.
In this accident, the deceased sustained
serious injuries and died on way to the
hospital for treatment.

4. It is also averred that the age of
the deceased was 38 years and he was
working as Senior Engineer (Technical)
in a private company namely, Aircel
(HUTCH).
Owner
and
Insurance
Company of the aforesaid vehicle filed
their
respective
written
statements.
Learned Tribunal held that the accident
had taken place due to coming a blue
bull on the way suddenly, which was not
the fault of the driver and accident had
taken place due to Act of
God.
Consequently, the claim was denied and
only Rs.50,000/- was awarded for no
fault liability.
5 All. Smt. Praveen Rawat & Ors. Vs. Anuroop Singh & Anr.
681

5. Aggrieved mainly with the non
grant of compensation under Section 166 of
Motor
Vehicles
Act
awarded,
the
appellants have preferred this appeal.

6. Heard learned counsel for the
appellants-claimants and learned counsel
for the respondents. Perused the record.

7. Learned counsel for the appellantsclaimants has submitted that impugned
judgment and award is against the law.
Learned Tribunal has held that the driver of
the car was not negligent but this finding is
erroneous because if the vehicle would
have been driven with proper care and
caution, the accident could have been
avoided. Learned Tribunal has adopted
incorrect approach, because the vehicle was
not being driven at a normal speed. In fact,
the driver lost the control on staring and the
vehicle dashed into the tree.

8. It is also submitted by learned
counsel for the appellants-claimants that at
the place of accident, the road was not plain
and it was having pits, hence, in such a
situation, the driver should have controlled
the speed but he failed to do so, which
reflects that car was being driven at an
excessive speed. It is next submitted that
two eye witnesses of the accident were
produced, who were not relied upon by the
learned Tribunal.

9. Per contra, learned counsel for the
Insurance
Company
has
vehemently
objected the submissions of learned counsel
for the appellants-claimants and submitted
that appellants brought the case before the
learned Tribunal with the fact that on way
to Lakhimpurkhiri, a blue bull came on the
road suddenly and to save it, car dashed
into the tree and overturned but the alleged
eye witnesses have deposed that car was
being driven at a very high speed and it
tried to overtake a tempo and in this
overtaking, the car dashed into the tree.
Hence, these two contradictory versions put
by the appellants before the learned
Tribunal.

10. Learned counsel for the insurance
company has pointed out that the owner of
the vehicle informed the concerned police
station on the same day of the accident.
This information was entered in General
Diary of the police station, in which it is
mentioned that a blue bull came on the road
and to save it, the car dashed into the tree.
Learned Tribunal also held that the
accident had taken place in order to save
the blue bull. Blue bull came on the road all
of sudden, which was not in control of the
driver, it was Act of God and there was no
negligent driving by the driver. It is also
submitted that this finding is based on fact
and evidence on record, which calls for no
interference by this Court.

11. Learned Tribunal held that
accident took place because a blue bull all
of sudden came on the road which was
beyond the control of the driver and in
order to save the blue bull, the accident
took place. Learned Tribunal held this
accident, as a result of Act of God. First of
all, we have to go into the question whether
the accident was the result of Act of God or
it was human negligence. While deciding
the claim petition, learned Tribunal had not
kept in mind the standard of proof in Motor
Accident Claim Petition.

12. In Anita Sharma and Others Vs.
The New India Assurance Co. Ltd. and
Another, (2021) 1 SCC 171, the Full Bench
of Hon'ble Apex Court narrated the view
taken in Parmeshwari Vs. Amir Chand,
(2011) 11 SCC 635, that it is very difficult
682 INDIAN LAW REPORTS ALLAHABAD SERIES
to trace the witnesses and collecting
information for an accident which took
place many hundreds of kilometers away
and further it is held by Hon'ble Apex
Court in Anita Sharma and Others
(Supra) that in a situation of this nature, the
Tribunal has rightly taken a holistic view of
the matter. It was necessary to be borne in
mind that strict proof of an accident caused
by a particular bus in a particular manner
may not be possible to be done by the
claimants. The claimants were merely to
establish their case on the touchstone of
preponderance of probability.

13. The Division Bench of Madras
High Court also held in Reliance General
Insurance Co. Ltd. Vs. Subbulakshmi and
Others, passed in C.MA. No. 1482 of 2017
[C.M.P. No. 7919 of 2017. (CMA Sr. No.
76893 of 2016)] has referred the case of
Puspabai Purshottam Udeshi Vs. Ranjit
Ginning and Pressing Co., 1977ACJ 343
(SC), in which it is observed that the
normal rule is that it is for the plaintiff to
prove negligence but as in some cases
considerable hardship is caused to the
plaintiff as the true cause of the accident is
not known to him but is solely within the
knowledge of the defendant who caused it,
the plaintiff can prove the accident but
cannot prove how it happened to establish
negligence on the part of the defendant.
This hardship is sought to be avoided by
applying the principle of res ipsa loquitur.
The general purport of the words res ipsa
loquitur is that the accident 'speaks for
itself or tells its own story. There are cases
in which the accident speaks for itself so
that it is sufficient for the plaintiff to prove
the accident and nothing more. It will then
be for the defendant to establish that the
accident happened due to some other cause
than his own negligence. Where the maxim
is applied the burden is on the defendant to
show either that in fact he was not
negligent or that the accident might more
probably have happened in a manner which
did not connote negligence on his part. For
the application of the principle it must be
shown that the car was under the
management of the defendant and that the
accident is such as in ordinary course of
things does not happen if those who had the
management used proper care.

14. In Bimla Devi and Others VS.
Himachal RTC reported in 2009 (13) SCC
530, the Hon'ble Supreme Court held that it
was necessary to be borne in mind that
strict proof of an accident caused by a
particular vehicle in a particular manner
may not be possible to be done by the
claimants. The claimants were merely to
establish their case on the touchstone of
preponderance of probability. The standard
of proof beyond reasonable doubt could not
have been applied.

15. In the case on hand the driver and
the deceased only were travelling in the
said vehicle at the time of accident. The
deceased died due to the injuries sustained
by him, hence, the real fact of the accident
how and in what manner it had taken place
lies only within the knowledge of the
driver, who has not stepped into the
witness-box. It is not disputed that accident
had taken place due to coming of blue bull
on the road. The G.D. entry of concerned
police station also discloses the fact of
accident in order to save the blue bull,
which is first version of the accident just
after three and half hours.

16. It is the version of appellantsclaimants as well as respondents and
learned Tribunal also reached to the
conclusion that accident took place in order
to save the vehicle from blue bull which
5 All. Smt. Praveen Rawat & Ors. Vs. Anuroop Singh & Anr.
683
came on the road all of sudden. Now here
comes the question, if the blue bull came
on the road before a vehicle whether it can
be termed as "Act of God."

17. While considering the question of
inevitable accident or an "Act of God", it
will be useful to reproduce a passage from
the Law of Torts, by Justice G. P. Singh.

"All
causes
of
inevitable
accidents may be divided into two classes.

(1) Those which are occasioned
by the elementary forces of nature
unconnected with the agency of man or
other cause; and

(2) Those which have their origin
either in the whole or in part in the agency
of man, whether in acts of commission or
omission, non-feasance or mis-feasance or
in any other causes independent of the
agency of natural forces. The term 'act of
God' is applicable to the former class."

18. Act of God is one arising from
natural causes. Some of the well-known
instances of "Act of God" are the storms,
the tides and the volcanic eruptions. They
are, in a sense, inevitable accidents beyond
the control of man. What is urged in this
case is that all inevitable accidents must be
taken as acts of God. Matters which are not
within the power of any party to prevent
are to be considered as acts of God as per
the Insurance Company. We are unable to
concur with the aforesaid argument of
learned
counsel
for
the
Insurance
Company. In our view, the accident may
happen by reason of the play of natural
forces or by intervention of human agency
or by both. It may be that in either of these
cases accidents may be inevitable. But it is
only those acts which can be traced to
natural forces and which have nothing to do
with the intervention of human agency that
could be said to be Acts of God. Cockburn
C. J.. in the leading case in Nugent v.
Smith. (1876-1 CPD 423) said.

"It is at once obvious, as was
pointed out by Lord Mansfield in Forward
v. Pittard, that all causes of inevitable
accident--" "fortuitus" -- may be divided
into two classes -- those which are
occasioned by the elementary forces of
nature unconnected with the agency of man
or other cause, and those which have their
origin either in the whole or in part in the
agency of man, whether in acts of
commission or omission, of nonfeasance or
of misfeasance, or in any other cause
independent of the agency of natural
forces. It is obvious that it would be
altogether incongruous to apply the term
"act of God" to the latter class of inevitable
accident. It is equally clear that storm and
tempest belong to the class to which the
term "act of God" is properly applicable."

19. In Halsbury's Laws of England,
Vol. 8, 3rd Edition, page 183, this question
is dealt with as under:

"An act of God. In the legal sense
of the term, may be defined as an
extraordinary occurrence or circumstance
which could not have been foreseen and
which could not have been guarded
against; or. more accurately, as an
accident due to natural causes, directly and
exclusively without human intervention,
and which could not have been avoided by
any amount of foresight and pains and care
reasonably to be expected of the person
sought to be made liable for it or who seeks
to excuse himself on the around of it. The
occurrence need not be unique, nor need it
be one that happens for the first time; it is
684 INDIAN LAW REPORTS ALLAHABAD SERIES
enough that it is extraordinary, and such as
could not reasonably be anticipated. The
mere fact that a phenomenon has happened
once, when it does not carry with it or
import any probability of a recurrence
(when, in other words, if does not imply
any law from which its recurrence can be
inferred) does not prevent that phenomenon
from being an act of God. It must, however,
be something overwhelming and not merely
an ordinary accidental circumstance, and it
must not arise from the act of man."

20. Coming of blue bull on the road
before a vehicle, as in the case on hand,
cannot be termed as Act of God. It is
admitted fact that the car, in which, the
deceased was traveling dashed into the tree
even it if it is believed that it was while
saving the blue bull and overturned in a big
pit. This is not the case that vehicle dashed
into blue bull but it dashed into tree, when
the driver tried to save the blue bull from
hitting the car, which goes to show that the
car was being plied at a high speed. Had
the car being driven at normal speed, the
accident could have been avoided or its
impact could be minimized. This fact itself
shows the negligence of the driver, who
was driving the vehicle at an excessive
speed. The Rule propounded in Rylands
Vs. Fletcher, 1868 Law Reports (3) HL
330, can apply in motor accident cases.

21. The above Rule eventually gained
approval in a large number of decisions
rendered by Courts in England and abroad.
Winfield on Torts has brought out even a
Chapter on the "Rule in Rylands Vs.
Fletcher. At page 543 of the 15th Edn. Of
the calibrated work the learned author has
pointed out that "over the years Rylands
Vs. Fletcher has been applied to a
remarkable variety of things; fire gas,
explosions, electricity, oil, noxious, fumes,
colliery spoil, rusty wire from a decayed
fence, vibrations, poisonous vegetation.

22. Act of God or vis major are the
forces which no human foresight can
provide most and of which human
prudence is not bound to recognize the
possibility. We are, therefore, of the
opinion that even apart from Section 140 of
Motor Vehicles Act, a victim in an accident
which occurred while using motor vehicle
is entitled to get compensation from the
Tribunal, unless any exception applies.

23. We are of the considered opinion
that if the driver of the vehicle would have
taken care and caution while plying the
vehicle at normal speed, the accident could
have been avoided because it is the finding
of learned Tribunal in the impugned
judgment that the place where the accident
had occurred was near Dudhwa National
Park, having forest on both sides of the
road and blue bulls are found there in large
numbers and possibility of blue bulls
coming on the road always remains high.
Hence, in these peculiar situation and
considering the place of accident, the driver
of the vehicle was under extra ruts to show
caution and was saddled with the duty to
take extra care and caution.

24. The finding of learned Tribunal
holding the accident to be the result of Act
of God is not sustainable in the eye of law
and we hold that the accident had taken
place due to the negligence of the driver of
the vehicle involved in the accident.

25. The policy being in vogue and
though orally submitted by counsel for
respondents that there is breach of policy
and the insurance company did not
challenge the award as the amount awarded
was under Section 140 M.V. Act, if this
5 All. Smt. Praveen Rawat & Ors. Vs. Anuroop Singh & Anr.
685
Court decide not to relegate the appellants
to Tribunal. The oral objection be heard.
We have perused the record, there is no
breach of policy proved which can either
exonerate the Insurance Company or permit
this Court to grant recovery rights to
Insurance Company. The finding of fact
that the driver of the vehicle had proper
driving licence is concurred with us and,
therefore, the Tribunal has held the
Insurance Company liable, in which we
concur the oral submissions of Mr. Rahul
Sahai, learned counsel for the respondentInsurance company that the Insurance
Company should be given recovery rights
cannot be acceded.

26. Now, we have to decide the
quantum of compensation payable to the
appellants-claimants. We first thought that
the matter can be relegated to the learned
Tribunal for fixation of the quantum of
compensation but we are mindful of the
fact that this is a case in which the accident
happened more than 17 years ago. Hence,
we
incline
to
fix
the
quantum
of
compensation here itself in view of the
judgment of Bithika Mazumdar and
another Vs. Sagar Pal and Others, (2017)
2 SCC 748 and of this Court in F.A.F.O.
No. 1999 of 2007 (Oriental Insurance
Company Ltd. Vs. Smt. Ummida Begum
and others) and also in F.A.F.O. No. 1404
of 1999 (Smt. Ragini Devi and others Vs.
United India Insurance Company Ltd.
and another) decided on 17.04.2019
wherein it has been held that if the record is
with the appellate Court, it can decide the
compensation instead of relegating the
parties to the Tribunal.

27. The deceased was serving as a
Senior Engineer (Technical) in a private
company
namely,
Aircel
(HUTCH).
Learned
counsel
for
the
appellantsclaimants has submitted that deceased was
getting the salary near about Rs.30,000/-
per month at the time of death. The age of
the deceased was 33 years and he is
survived by his wife and three minor
children.

28. Per contra, learned counsel for
the Insurance Company has objected to it
and submitted that the income of the
deceased is not proved and the age of the
deceased was 38 years.

29. Perusal of record confirms that the
deceased was serving in private company
namely, Aircel (HUTCH). The salary
certificate of the deceased is also on record,
which is well proved as the learned
Tribunal has exhibited it as Ex. KA-1. It
transpires from the salary certificate that
monthly salary of the deceased is shown as
Rs.25,881/-.

30. According to us, admissible
component of salary would include the
basic salary, management allowance, house
rent allowance, conveyance allowance, pay
for position and provident fund, rest of the
components shown in the salary certificate
are subject to the reimbursement, hence,
are not part of the salary. Hence,
computable salary would be Rs.21,632/-
per month.

31. Since the age of the deceased was
below 40 years i.e. 38 years as per the High
School Certificate and he was in permanent
job, 50% shall be added towards future loss
of income as held by Hon'ble Apex Court
in National Insurance Company vs.
Pranay Sethi [2014 (4) TAC 637 (SC)].
Keeping in view the age of the deceased,
multiplier of 15 will be applied in the light
of the judgment of Hon'ble Apex Court in
the case of Smt.Sarla Verma vs. Delhi
686 INDIAN LAW REPORTS ALLAHABAD SERIES
Transport Corporation [2009 (2) TAC 677
(SC)]. The deceased is survived by his wife
and three minor children, 1/3rd would be
deducted from the salary for personal
expenses of the deceased.

32. In the light of judgment of Pranay
Sethi (Supra), claimants shall be entitled to
get Rs.15,000/- each for loss of estate and
funeral expenses. Apart from it, the wife of
the deceased shall also be entitled to get
Rs..40,000/- for loss of consortium, which
are subject to upward revision of 10% of
every three years. In this way, the
appellants-claimants shall be entitled to get
Rs.1,00,000/- for non-pecuniary heads.

33. Three minor children of the
deceased, lost their father at a very tender
age, hence, children of the deceased shall
be entitled to get Rs.50,000/- each towards
filial consortium in the light of the
judgment of Hon'ble Apex Court in the
case of Kurvan Ansari alias Kurvan Ali
and another vs. Shyam Kishore Murmu
and another [2021 (4) TAC (SC)] .

34. Hence, the total amount of
compensation, in view of the above
discussions, payable to the appellantsclaimants is being computed herein below:

1.
Annual income
i.e. Rs.21,632/-
per month X
12
Rs.2,59,584/- P/A
2.
Percentage
towards future
prospect : 50%
Rs.1,29,792/-
3.
Total income :
Rs.2,59,584/- +
Rs.1,29,792/- =
Rs.3,89,376/-
4.
Income
after Rs.2,59,584/-
deduction
of
1/3rd
:
Rs.3,89,376
-
Rs.1,29,792/-
5.
Multiplier
applicable : 15
:-
Rs.
2,59,584/-
X
15
Rs.38.93,760/-
6.
Amount under
non pecuniary
head
:
Rs.15,000
+
Rs.15,000
+
Rs.40,000/-
+
10 % upward
revision
of
every
three
years.
Rs.1,00,000/-
7.
Filial
consortium
:
Rs.50,000/- X
3
Rs.1,50,000/-
8.
Total
compensation :
Rs.38,93,760/-
+ Rs.1,00,000/-
+ Rs.1,50,000/-
Rs. 41,43,760/-
9.
Amount
after
deduction of no
fault liability :
Rs.41,43,760/-
- Rs.50,000/-
Rs. 40,93,760/-.

35. It is pointed out by learned
counsel for the Insurance Company that the
appeal is delayed by 308 days and the
interest of the aforesaid period would not
be paid to the appellants-claimants.

36. It is rightly pointed out by the
learned counsel for the Insurance Company
5 All. Smt. Praveen Rawat & Ors. Vs. Anuroop Singh & Anr.
687
that appeal is delayed by 308 days, hence,
interest of one year should be deducted. 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."

37. We fix the rate of interest as 7.5%
per annum till the date of judgment by the
learned Tribunal. No interest would be paid
for one year after the judgment of learned
Tribunal and 6% per annum rate of interest
would be paid thereafter.

38. 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 as
discussed above 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.

39. 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.

40. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex
Court
in
Bajaj
Allianz
General
Insurance Company Pvt. Ltd. Vs. Union
of India and Others, vide order dated
27.01.2022, as the purpose of keeping
compensation is to safeguard the interest
of the claimants. Since long time has
elapsed, the amount be deposited in the
Saving Bank Account of claimant(s) in a
nationalized Bank without F.D.R.
----------
688 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)05ILR A688
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

THE HON'BLE SALIL KUMAR RAI , J.

First Appeal From Order No. 955 of 2016

Smt. Servesh Devi & Ors. ...Appellants
Versus
Ankush Agarwal & Ors. ...Respondents

Counsel for the Appellant:s
Sri Ram Singh, Sri Amit Kumar Singh

Counsel for the Respondents:

A. Civil Law - Motor Accident Act, 1988 -
Section
173
-
Compensation
-
Determination of income - Deceased
was an unskilled labour - Notional
income - Tribunal determined it as Rs.
100/- per day - Validity challenged -
Held, notional income of unskilled labour
cannot be taken to be less than Rs.
200/- per day - Presumption of Rs.
100/- per day as notional income, even
for an unskilled labour in the year 2014,
would be frugal and by no stretch of
imagination can be considered to be just
because even the minimum wages fixed
by the State Government were much
higher than that - Smt. Resha Devi's
case relied upon - High Court recomputed the compensation. (Para 10
and 18)
B. Civil Law - UP Motor Vehicle Rules,
1998
-
Rule
220-A
(3)
-
Future
prospects - Loss of estate, loss of
consortium and funeral expenses - Held,
there was no rationale not to add future
prospects in the income of the selfemployed or a person who is on a fixed
salary and such denial would be unjust -
30%
has
to
be
added
as
future
prospects in the notional income of the
deceased
while
determining
the
multiplicand as deceased was 40 years
old - Pranay Sethi's case relied upon.
(Para 12, 13 and 15)
C. Civil Law - U.P. Motor Vehicle Rules,
1998
-
Rule
220-A
(4)
-
Compensations - Loss of love and
affection
and
loss
of
consortium,
whether can be awarded separately -
Contradiction in statutory provision
and judicial precedent - Though the
Rule
(4)
provide
for
separate
compensation for 'loss of love and
affection' and 'loss of consortium',
Supreme Court held in Satinder Singh's
case that loss of love and affection is
included in loss of consortium and,
therefore, there is no justification to
award compensation towards loss of
love and affection as a separate head -
Held, if a statutory instrument has
devised a formula which affords better
or
greater
benefit,
such
statutory
instrument must be allowed to operate
unless the statutory instrument is
otherwise
found
to
be
invalid
-
Claimants were entitled to separate
compensation for loss of consortium
and for loss of love and affection -
Urmila Shukla's case relied upon. (Para
15, 16 and 17)
Appeal allowed (E-1)
List of Cases cited :-
1. New India Assurance Co. Ltd. Vs Smt. Resha
Devi & ors.; 2017 (3) ADJ 685
2. National Insurance Co. Ltd. Vs Pranay Sethi &
ors.; (2017) 16 SCC 680
3. Magma General Insurance Co. Ltd. Vs Nanu
Ram; 2018 SCC OnLine SC 1546
4. United India Insurance Co. Ltd. Vs Satinder
Kaur @ Satwinder Kaur & ors.; AIR (2020) SC
3076
5. The New India Assurance Co. Ltd. Vs Smt.
Somwati & ors.; (2020) 9 SCC 644
6. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors.; 2021 SCC OnLine SC 822