# Smt. Priya Rani & Ors v. Ram Sharan & Ors

- **Citation:** (2022) 5 ILRA 819
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-27
- **Case number:** First Appeal From Order No. 3586 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-priya-rani-ors-v-ram-sharan-ors-48594
- **Pages:** 7

## Headnote

A. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - Contributory
Negligence - 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 - Buren of proof -
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 (Para 6)
At around 9.00 pm, driver of the truck which
was moving ahead of the car which deceased
was driving, suddenly applied brake & suddenly,
speedily and carelessly drove back his vehicle
without using dipper and horn & hit the
deceased vehicle - truck driver did not even step
into the witness box - frugality with the accident
occurred goes to show that the driver of the Car
is also negligent - Held - driver of the Car 30%
negligent - Total compensation : Rs. 28,60,800 -
Amount payable to claimants after deduction of
30% negligence of deceased Rs.20,02,560/-
(Para 14)
B. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - Future Loss
of Income - Tribunal not granted future
loss of income as the accident occurred in
2010 - deceased was below 40 years i.e.
29 years and was having his own business
- Held - 40% should be added as future
loss of income of the deceased - under
non-pecuniary heads, claimants entitled to
at least Rs.70,000 plus 10% rise in every
3 years in view of the decision in Pranay
Sethi (Para 16)
Allowed. (E-5)

List of Cases cited:

1.Mananinga Director, BMTC Vs U.O.I. & ors.,
2008 (3) TAC 796 (SC)

2.Indira Devi & ors. Vs Bagada Ram & ors.,
(2011) 2 SCC 134

3.United Insurance Co. Ltd. Vs T. Gandama &
ors., 2010 (2) TAC 345, Andhra Pradesh

## Text

5 All. Smt. Priya Rani & Ors. Vs. Ram Sharan & Ors.
819
matter at any rate higher than that allowed
by High Court."

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

15. In view of the above, the appeal is
partly allowed. Judgment and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The respondent-Insurance
Company shall deposit the amount within a
period of 12 weeks from today with interest
at the rate of 7.5% from the date of filing of
the claim petition till the amount is deposited.
The amount already deposited be deducted
from the amount to be deposited.

16. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees, if
any. Considering the ratio laid down by the
Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of investment
be passed by Tribunal..

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

18. Fresh Award be drawn accordingly in
the above petition by the tribunal as per the
modification made herein. The Tribunals in the
State shall follow the direction of this Court as
herein aforementioned as far as disbursement is
concerned, it should look into the condition of
the litigant and the pendency of the matter and
judgment of A.V. Padma (supra). The same is
to be applied looking to the facts of each case.

19. The Tribunal shall follow the
guidelines issued by the Apex Court in Bajaj
Allianz General Insurance Company Private
Ltd. v. Union of India and others vide order
dated 27.1.2022, as the purpose of keeping
compensation is to safeguard the interest of the
claimants. As 10 years have elapsed, the
amount be deposited in the Saving Account of
claimants in Nationalized Bank without F.D.R.

20. This Court is thankful to both the
counsels for getting this matter decided.
----------
(2022)05ILR A819
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.03.2022

BEFORE

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

First Appeal From Order No. 3586 of 2012

Smt. Priya Rani & Ors. ...Appellants
Versus
Ram Sharan & Ors. ...Respondents

Counsel for the Appellants:
820 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri S.D. Ojha

Counsel for the Respondents:
Sri Ashish K. Srivatava, Sri N.K Chatterjee

A. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - Contributory
Negligence - 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 - Buren of proof -
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 (Para 6)
At around 9.00 pm, driver of the truck which
was moving ahead of the car which deceased
was driving, suddenly applied brake & suddenly,
speedily and carelessly drove back his vehicle
without using dipper and horn & hit the
deceased vehicle - truck driver did not even step
into the witness box - frugality with the accident
occurred goes to show that the driver of the Car
is also negligent - Held - driver of the Car 30%
negligent - Total compensation : Rs. 28,60,800 -
Amount payable to claimants after deduction of
30% negligence of deceased Rs.20,02,560/-
(Para 14)
B. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - Future Loss
of Income - Tribunal not granted future
loss of income as the accident occurred in
2010 - deceased was below 40 years i.e.
29 years and was having his own business
- Held - 40% should be added as future
loss of income of the deceased - under
non-pecuniary heads, claimants entitled to
at least Rs.70,000 plus 10% rise in every
3 years in view of the decision in Pranay
Sethi (Para 16)
Allowed. (E-5)

List of Cases cited:

1.Mananinga Director, BMTC Vs U.O.I. & ors.,
2008 (3) TAC 796 (SC)

2.Indira Devi & ors. Vs Bagada Ram & ors.,
(2011) 2 SCC 134

3.United Insurance Co. Ltd. Vs T. Gandama &
ors., 2010 (2) TAC 345, Andhra Pradesh

4. Managinga Director, BMTC Vs U.O.I. & ors.,
2008 (3) TAC 796

5. Indira Devi & ors. Vs Bagada Ram & anr.,
(2011) 2 SCC 134

6. Smt. K. Anusha & ors. Vs Regional Manager,
Shriram General Insurance Company, 2022 (4)
TAC 341

7. Smt. Sarla Verma & ors. Vs Delhi Transport
Corporation & anr., reported in 2009 ACJ
1298

8. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 0 Supreme (SC) 105

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

10. A.V. Padma V/s. Venugopal, Reported in
2012 (1) GLH (SC), 442

11. Smt. Hansaguri P. Ladhani Vs.The Oriental
Insurance Company Ltd., reported in 2007(2)
GLH 291

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

1. Heard Sri S.D. Ojha, learned
counsel for the appellants and Sri N.K.
Chatterjee and Ashish Kumar Srivastava,
learned counsels for the respondentInsurance Company.
5 All. Smt. Priya Rani & Ors. Vs. Ram Sharan & Ors.
821

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 1.8.2012 passed by Motor
Accident
Claims
Tribunal/
Additional
District Judge, Court No.1, Muzaffar Nagar
(hereinafter referred to as 'Tribunal') in
M.A.C.P. No. 624 of 2011 awarding a sum
of Rs. 9,42,450/- with interest at the rate of
6% as compensation.

3. The accident is not in dispute. The
Insurance Company has not challenged the
liability imposed on them. The claimants -
appellants have challenged the award of the

4. The facts in brief are that Anuj
Kumar, aged about 29 year, was a whole
seller of textile and was maintaining his
wife, son and mother with an annual
income of around Rs. 3 Lacs. On
24.8.2010, Anuj Kumar along with his wife
Smt. Priya, son Shreya and brother Pankaj
was
coming
to
Muzaffarnagar
from
Saharanpur in his Santro Car No. U.P. 12J-7976. Anuj Kumar was carefully driving
his car in slow and controlled speed at his
side. At around 9.00 pm, when they turned
towards Rohana after crossing Ghaloli
Check Post, the driver of the truck bearing
number
U.P.-12-L-2062,
which
was
moving ahead them, suddenly applied
brake. Following it, Anuj Kumar too
applied brake keeping his car at necessary
and appropriate distance and stopped the
car. The drivers of other vehicles following
the car also stopped their vehicles. But the
driver
of
the
truck
U.P.-12-L-2062
suddenly, speedily and carelessly drove
back his vehicle without using dipper and
horn. Seeing it, Anuj blew horn of his car
and tried to check his car but he could not
reverse his car due to there being other
vehicles behind the aforesaid car and the
driver of the truck reversing the truck
speedily and carelessly hit the vehicle
Santro Car U.P.-12-J-7976 forcefully and
rampaged the truck over the car as a result
of which Anuj Kumar, his brother Pankaj
and Priya sustained severe injuries. They
were
taken
to
District
Hospital,
Muzaffarnagar. Due to injuries sustained in
the accident, Anuj Kumar had been
declared dead in the district hospital. In the
accident,
there
was
no
mistake
or
carelessness on the part of Anuj Kumar
rather the carelessness was on the part of
the truck driver regarding which the report
was lodged against the truck driver with
Crime no. 1519/2010 u/Ss 279, 337, 338,
304-A of I.P.C. at police station Kotwali,
Muzaffarnagar.

5. As far as issue of contributory
negligence is concerned as alleged by the
appellant, we will have to consider the
principles for deciding the negligence.
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
822 INDIAN LAW REPORTS ALLAHABAD SERIES
principles, the negligence of drivers is
required to be assessed.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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
5 All. Smt. Priya Rani & Ors. Vs. Ram Sharan & Ors.
823
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 ACJ
(SC) 1840).

11. 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 of
driver of another vehicle.

12. Hence, the finding of the Tribunal
holding driver of the truck 30% negligent
relying on the decisions in Mananinga
Director, BMTC Vs. Union of India and
others, 2008 (3) TAC 796 (SC), Indira
Devi and others Vs. Bagada Ram and
others, (2011) 2 SCC 134, United
Insurance
Company
Ltd.
Vs.
T.
Gandama and others, 2010 (2) TAC 345,
Andhra Pradesh, is bad for the reasons
assigned herein below.

13. While going through the record, it
transpires that the accident took place
between the truck and car. They both were
on the middle road. The truck, according to
the witnesses, was on the side of the road.
The accident occurred at 09:00 p.m. in the
night. It is nobody's case that the driver of
the truck had tried to safeguard by keeping
any indicator on would show that the
vehicle was stationed with all safety. The
learned Tribunal also comes to the
conclusion that the truck was stationary
without any indicator and, therefore, we
hold that contours of the judgment of the
Apex Court in Managinga Director,
BMTC Vs. Union of India and others,
2008 (3) TAC 796, cannot apply in our
case as it was night time. The truck driver
did not even step into the witness box. The
judgment in the case of Indira Devi and
others Vs. Bagada Ram and another,
(2011) 2 SCC 134, cannot be made
applicable on the facts of this case. In our
case, the vehicle was parked without any
parking light and as it was night time and,
therefore, also we are unable to accept the
submission
of
the
Counsel
for
the
respondents that the driver of the Car was
not negligent. Stationary truck was parked
on the road, therefore, the judgement of the
Apex Court in Smt. K. Anusha and others
Vs. Regional Manager, Shriram General
Insurance Company, 2022 (4) TAC 341,
will apply to the facts of this case. Had the
truck not being parked on the Highway
with no parking light, the accident might
have not occurred but the frugality with the
accident occurred goes to show that the
driver of the Car is also negligent.

14. We are interfering in the finding
as far as contributory negligence is
concerned as we are unable to accept the
submission of Sri Ashish Kumar Srivastava
that the driver of the Car dashed with the
truck and was fully negligent. The driver of
the truck has not entered into the witness
box that goes against the truck and
Insurance company. We hold the driver of
the Car 30% negligent.

15. The challenge to the Tribunal
award is that the Tribunal has not granted
future loss of income as the accident
occurred in 2010. The deceased had a
business and, therefore, the Tribunal relied
on the judgment of the Apex Court on Smt.
Sarla Verma and others Vs. Delhi
Transport
Corporation
and
another,
reported in 2009 ACJ 1298. There is no
dispute
as
far
as
computation
of
compensation is concerned. The income,
which has been considered by the Tribunal,
is not disturbed.
824 INDIAN LAW REPORTS ALLAHABAD SERIES

16. As the deceased was below 40
years namely 29 years and was having
his own business, 40% should be added
as future loss of income of the deceased
in view of the decision in National
Insurance
Company
Limited
Vs.
Pranay Sethi and Others, 2017 0
Supreme (SC) 105. The deceased was
29 years of age hence multiplier of 17
would apply. It is further submitted that
under
non-pecuniary
heads,
the
claimants are entitled to at least
Rs.70,000 plus 10% rise in every 3
years in view of the decision in Pranay
Sethi
(supra).
Hence,
we
grant
Rs.1,00,000/- (rounded figure) under
the head of non-pecuniary damages.

17.

Hence,
the compensation
payable to the appellants in view of the
decision of the Apex Court in Pranay
Sethi (Supra) is computed herein
below:

i. Annual Income Rs.1,74,000/-

ii. Percentage towards future
prospects : 40% namely Rs.69,600/-

iii. Total income : Rs. 1,74,000 +
69,600 = Rs. 2,43,600/-

iv. Income after deduction of 1/3
: Rs. 1,62,400/-

v. Multiplier applicable : 17

vi.
Loss
of
dependency:
Rs.1,62,400 x 17 = Rs. 27,60,800/-

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

viii. Total compensation : Rs.
28,60,800/-

ix. Amount payable to claimants
after deduction of 30% negligence of
deceased Rs.20,02,560/-

18. As far as issue of rate of interest is
concerned, the interest should be 7.5% in
view of the latest decision of the Apex
Court in National Insurance Co. Ltd. Vs.
Mannat Johal and Others, 2019 (2) T.A.C.
705 (S.C.), wherein the Apex Court has
held as under :

"13.
The
aforesaid
features
equally apply to the contentions urged on
behalf of the claimants as regards the rate
of interest. The Tribunal had awarded
interest at the rate of 12% p.a. but the same
had been too high a rate in comparison to
what is ordinarily envisaged in these
matters. The High Court, after making a
substantial enhancement in the award
amount, modified the interest component at
a reasonable rate of 7.5% p.a. and we find
no reason to allow the interest in this
matter at any rate higher than that allowed
by High Court."

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

20. 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.

21. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguri P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
5 All. Parth @ Pratham Vs. New India Insurance Co. Ltd. & Ors.
825
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.

22. In view of the above, the appeal
is partly allowed. Judgment and decree
passed by the Tribunal shall stand
modified to the aforesaid extent. The
respondent-Insurance
Company
shall
deposit the amount with interest at the
rate of 7.5% from the date of filing of the
claim petition till the amount is deposited
within a period of 12 weeks from today.
The
amount
already
deposited
be
deducted
from
the
amount
to
be
deposited.

23.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein.

24. This Court is thankful to both the
counsels to see that this very old matter is
disposed of.
----------
(2022)05ILR A825
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2022

BEFORE

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

First Appeal From Order No. 3712 of 2017

Parth @ Pratham ...Appellant
Versus
New India Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Devesh Pratap Singh Chauhan, Sri
Pawan Kumar Singh

Counsel for the Respondents:
Sri Rakesh Bahadur

A. Civil Law - Motor Accident Act, 1988 -
UP Motor Vehicle Rules, 1998 - Rule 220 -
Compensation - Death of salaried person
- Entitlement of future loss - Held, where
deceased was salaried person, future loss
of income must be added - High Court recomputed the compensation by adding
50%
future
prospect
and
applying
multiplier of 15. (Para 8 and 13)

B. Motor Accident Claim - Share in
compensation - Hindu law or personal law
- Applicability - Sole minor survive the
deceased - Minor's right of getting the
compensation - Tribunal granted 1/6 of
the compensation to be paid to the minor
- Validity challenged - Held, claim case is
not
a
partition
suit.
The
legal
representative/legal
heir
would
be
entitled to the compensation for the
tortious act of the driver for which the
owner would be vicariously liable and the
Insurance Co. would have to indemnity
the third party - The appellant is the sole
surviving legal heir, the compensation has
to be decided as per the provisions of