# Smt. Rahisa Begum (since deceased) & Anr v. Shri Susheel Chandra Gupta & Anr

- **Citation:** (2021) 9 ILRA 410
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-02
- **Case number:** FAFO No. 724 of 2010
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rahisa-begum-since-deceased-anr-v-shri-susheel-chandra-gupta-anr-47594
- **Pages:** 13

## Headnote

9 All. Smt. Rahisa Begum (since deceased) & Anr. Vs. Shri Susheel Chandra Gupta & Anr.
411
Sri Subhash Chandra Srivastava, Sri Dinesh
Chandra Srivastava

Motor
accident
claim-quantum
of
compensation
is
challenged-Deceased
had permanent job-wife of the deceased
also died-son is the sole claimant-major
and married-Tribunal held claimant not
dependant on deceased-no amount under
other heads was granted-only loss of
estate-deceased neither author nor coauthor of the accident-deduction of 50%
from
compensation
is
bad-order
modified.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,988 of 42,648. This is a partial read: ask again with offset=39988 for what follows._

410 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribunal has taken the multiplier at 17 with
which learned counsel for appellant does
not have
any objection. Hence
the
compensation would stand at Rs.9,52,000/-
(56,000 X 17).

Descrip
tion
Award
ed
by
Tribun
al
Modified/en
hanced
by
this Court
Differenc
e
compen
sation
Rs.6,89,
500/-
9,52,000/-
Rs.2,62,5
00/-
loss of
estate
Rs.2,50
0/-
Rs.15,000/-
Rs.12,50
0/-
loss of
consorti
um
Rs.5,00
0/-
Rs.40,000/-
Rs.35,00
0/-
funeral
expense
s
Rs.2,00
0/-
Rs.15,000/-
Rs.13,00
0/-
TOTA
L

Rs.3,23,0
00/-
rate of
interest
on
the
amount
awarde
d by the
Tribuna
l.
12% per
annum
from
effectiv
e
date
as
stipulat
ed
in
the
award.
remains the
same
as
awarded by
the Tribunal
with
no
modification
by
this
Court.

rate of
interest
entitled
by
claiman
ts
on
the
enhance
d
amount
Not
applica
ble
6%
per
annum from
the date of
institution of
appeal
before
this
Court
i.e.
18.12.2020
till
actual
payment
to
s.
the
claimants.

24. Consequently, the appeal succeeds
and is allowed modifying the judgment and
award dated 07.09.2000 passed in Claim
Petition No.83 of 1987 in the aforesaid
terms. The parties to bear their own costs.

25. Since it is submitted that the
insurance company has already made
certain deposits of the compensation
awarded some of which apparently has
already been withdrawn by the claimants, it
is therefore provided that the enhanced
compensation would be paid to the
claimants after adjusting the amount that
have already been paid to them. The
claimants would also be entitled to the
statutory amount of Rs.25,000/- which has
been deposited at the time of filing of the
present appeal.
----------

(2021)09ILR A410
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

FAFO No. 724 of 2010

Smt. Rahisa Begum (since deceased) &
Anr. ...Appellants
Versus
Shri Susheel Chandra Gupta & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Mohd. Naushad Siddiqui

Counsel for the Respondents:
9 All. Smt. Rahisa Begum (since deceased) & Anr. Vs. Shri Susheel Chandra Gupta & Anr.
411
Sri Subhash Chandra Srivastava, Sri Dinesh
Chandra Srivastava

Motor
accident
claim-quantum
of
compensation
is
challenged-Deceased
had permanent job-wife of the deceased
also died-son is the sole claimant-major
and married-Tribunal held claimant not
dependant on deceased-no amount under
other heads was granted-only loss of
estate-deceased neither author nor coauthor of the accident-deduction of 50%
from
compensation
is
bad-order
modified.

Appeal partly allowed. (E-9)

List of Cases cited:

1. The Oriental Insurance Co. Ltd. Vs Mangey
Ram & ors., 2019 0 Supreme (All) 1067

2. New India Assurance Co.Vs Urmila Shukla
decided by the Apex Court on 6.8.2021

3. First Appeal From Order No. 1818 of 2012 (
Bajaj Allianz General Insurance Co.Ltd. Vs Smt.
Renu Singh & ors.) decided on 19.7.2016

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

5. Pramodkumar Rasikbhai Jhaveri Vs Karmasey
Kunvargi Tak & ors. decided on 05.08.2002 in
Appeal (Civil) No. 5436 of 1994,

6. Raj Rani & ors. Vs Oriental Insurance Co. Ltd.
& ors. decided on 06.05.2009 in Civil Appeal No.
33-3318 of 2009 (Arising out of SLP ( C) Nos.
2792- 27793 of 2008)

7. Archit Saini Vs Oriental Insurance Co. Ltd. &
ors., 2018 ) AIR (SC) 1143

8. Montford Brothers of St. Gabriel & anr. Vs
United India Insurance & anr., 2014 1 ACC 461

9. Gujarat State Road Transport Corporation,
Ahmedabad Vs Ramanbhai Prabhatbhai

10. National Insurance Co. Ltd. Vs Birender &
ors., 2020 LawSuit (SC) 26
11. Uttar Pradesh State Road Transport Corp.
Vs Tara Devi, 1995 LawSuit (All) 13,

12. Padma Devi Vs .P. State Road Transport
Corp., 1988 LawSuit (All) 235

13. National Insurance Co. Ltd. Vs Pranay Sethi
& ors., 2017 0 Supreme (SC) 1050

14. Satish Chand Sharma (deceased) & 3 ors. Vs
Manoj Kumar & anr. F.A.F.O. No. 3160 of 2018
decided on 26.03.2021

15. Oriental InsuranceCo. Vs Kahlon @ Jasmali
Singh @ Kahlon, LL 2021 SC 382

16. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors., LL 2021SC 359

17. Sarla Verma Vs Delhi Transport Corp., (2009)
6 SCC 12.

18. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co.Ltd., reported in 2007(2) GLH 291

19. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd

20. A.Vs Padma Vs Venugopal, [2012(1) GLH
(SC), 442

(Delivered by Hon'ble Subhash Chand, J.)

1. Heard Sri Mohd. Naushad
Siddiqui, learned counsel for appellant and
Sri Dinesh Chandra Srivastava, learned
counsel for insurance company.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 02.09.2009 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No.16, Kanpur Nagar
(hereinafter referred to as 'Tribunal') in
M.A.C.P. No. 560 of 2006 awarding a sum
of Rs.9,500/- with interest at the rate of
7.5% as compensation, under Section 166
of Motor Vehicles Act, 1988 (hereinafter
referred to as M.V. Act).
412 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The accident is not in dispute. The
issue of negligence decided by the Tribunal
is not in dispute. The Insurance Company
has not challenged the liability imposed on
them. The only issue to be decided is, the
quantum of compensation awarded.

4. The facts as they are collated go to
show that the deceased was having a
permanent job. The Tribunal unfortunately
did not compute the income, multiplier, had
granted Rs.9,500/-. The Tribunal has held
that the wife of the deceased Hasim Ali died
and son of the deceased Kasim Ali is the sole
claimant, he is major and married person, the
learned Tribunal held that Kasim Ali was not
dependant on the deceased and has held no
amount under other heads could be granted
and has misread the judgment and the learned
Tribunal has held that the claimant is entitled
only for the loss of estate. These findings are
assailed on the ground that the provisions of
Section 166 of the M.V. Act, 1988 and that
the judgment of this Court in The Oriental
Insurance Company Ltd. Vs. Mangey
Ram and others, 2019 0 Supreme (All)
1067 and the recent judgment of the Apex
Court in New India Assurance Company
Vs. Urmila Shukla decided by the Apex
Court on 6.8.2021 as far as compensation to
be paid is concerned has to be applied for
grant of compensation. The Apex Court has
held that the claimants even if they are major
sons their rights would not be diminished.
The right in a motor accidents claim case
arise on the date the accident occurs, the
subsequent happenings will not bring an end
to the right of the legal heirs. The widow
being the first legal heir would be entitled to
receive compensation as per the M.V. Act.

5. It is submitted that the order is
perverse and against the well settled
principles of law. The learned Tribunal has
misread the judgment of the Allahabad
High Court in which he has placed reliance.
The term dependent has not found place in
the Act. For computing compensation legal
representative has to be seen whether son is
dependent on the father or not has no
relevance.

6. The counsel for respondent has
stated that no fault can be found as with the
decision of Tribunal, the sole surviving
claimant is not dependant on the deceased.
The case of contributory negligence is
rightly decided as the Car was being driven
by the deceased, which hit the tanker for
which site plan was believed by the
Tribunal and finding him negligent does
not need interference.

7. Having heard the learned counsel
for the parties, issue of negligence be
considered from the perspective of the law
laid down.

8. The term negligence means failure
to exercise care towards others which a
reasonable and prudent person would in a
circumstance or taking action which such a
reasonable person would not. Negligence
can be both intentional or accidental which
is normally accidental. More particularly, it
connotes reckless driving and the injured
must always prove that the either side is
negligent. If the injury rather death is
caused by something owned or controlled
by the negligent party then he is directly
liable otherwise the principle of "res ipsa
loquitur" meaning thereby "the things
speak for itself" would apply.

9. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or
author of the accident would be liable for
his contribution to the accident having
taken place.
9 All. Smt. Rahisa Begum (since deceased) & Anr. Vs. Shri Susheel Chandra Gupta & Anr.
413

10. The Division Bench of this Court
in First Appeal From Order No. 1818 of
2012 ( Bajaj Allianz General Insurance
Co.Ltd. Vs. Smt. Renu Singh And
Others) decided on 19.7.2016 has held as
under :

"16. Negligence means failure to
exercise required degree of care and
caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence.
It is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one. It is rather a
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no
legal consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

17. It would be seen that burden
of proof for contributory negligence on the
part of deceased has to be discharged by
the opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection
where two roads cross each other, it is the
duty of a fast moving vehicle to slow down
and if driver did not slow down at
intersection, but continued to proceed at a
high speed without caring to notice that
another vehicle was crossing, then the
conduct of driver necessarily leads to
conclusion that vehicle was being driven by
him rashly as well as negligently.

18. 10th Schedule appended to
Motor
Vehicle
Act
contain
statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation
clearly directs that the driver of every
motor vehicle to slow down vehicle at every
intersection or junction of roads or at a
turning of the road. It is also provided that
driver of the vehicle should not enter
intersection or junction of roads unless he
makes sure that he would not thereby
endanger
any
other
person.
Merely,
because driver of the Truck was driving
vehicle on the left side of road would not
absolve him from his responsibility to slow
down vehicle as he approaches intersection
of roads, particularly when he could have
easily seen, that the car over which
deceased was riding, was approaching
intersection.

19. In view of the fast and
constantly increasing volume of traffic,
motor vehicles upon roads may be
regarded to some extent as coming within
the principle of liability defined in Rylands
V/s. Fletcher, (1868) 3 HL (LR) 330. From
the point of view of pedestrian, the roads of
this country have been rendered by the use
of motor vehicles, highly dangerous. 'Hit
and run' cases where drivers of motor
vehicles who have caused accidents, are
unknown. In fact such cases are increasing
in number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the case
may be, should be entitled to recover
damages if principle of social justice
should have any meaning at all.

20. These provisions (sec.110A
and sec.110B of Motor Act, 1988) are not
414 INDIAN LAW REPORTS ALLAHABAD SERIES
merely
procedural
provisions.
They
substantively affect the rights of the parties.
The right of action created by Fatal
Accidents Act, 1855 was 'new in its species,
new in its quality, new in its principles. In
every way it was new. The right given to
legal representatives under Act, 1988 to file
an application for compensation for death
due to a motor vehicle accident is an
enlarged one. This right cannot be hedged
in by limitations of an action under Fatal
Accidents Act, 1855. New situations and
new dangers require new strategies and
new remedies.

21. In the light of the above
discussion, we are of the view that even if
courts may not by interpretation displace
the principles of law which are considered
to be well settled and, therefore, court
cannot dispense with proof of negligence
altogether in all cases of motor vehicle
accidents, it is possible to develop the law
further on the following lines; when a
motor
vehicle
is
being
driven
with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits (per three-Judge Bench in
Jacob Mathew V/s. State of Punjab, 2005
0 ACJ(SC) 1840).

22. By the above process, the
burden of proof may ordinarily be cast on
the defendants in a motor accident claim
petition to prove that motor vehicle was
being driven with reasonable care or that
there is equal negligence on the part the
other side."
emphasis added

11. The Apex Court in Khenyei Vs.
New India Assurance Company Limited
& Others, 2015 LawSuit (SC) 469 has
held as under:

"4. It is a case of composite
negligence where injuries have been
caused to the claimants by combined
wrongful act of joint tort feasors. In a case
of accident caused by negligence of joint
tort feasors, all the persons who aid or
counsel or direct or join in committal of a
wrongful act, are liable. In such case, the
liability is always joint and several. The
extent of negligence of joint tort feasors in
such a case is immaterial for satisfaction of
the claim of the plaintiff/claimant and need
not be determined by the by the court.
However, in case all the joint tort feasors
are before the court, it may determine the
extent of their liability for the purpose of
adjusting inter-se equities between them at
appropriate stage. The liability of each and
every joint tort feasor vis a vis to
plaintiff/claimant cannot be bifurcated as it
is joint and several liability. In the case of
composite negligence, apportionment of
compensation between tort feasors for
making payment to the plaintiff is not
permissible as the plaintiff/claimant has the
right to recover the entire amount from the
easiest targets/solvent defendant.

14. There is a difference between
contributory and composite negligence. In
the case of contributory negligence, a
person who has himself contributed to the
extent cannot claim compensation for the
injuries sustained by him in the accident to
the extent of his own negligence;whereas in
the case of composite negligence, a person
who has suffered has not contributed to the
accident but the outcome of combination of
negligence of two or more other persons.
This Court in T.O. Anthony v. Karvarnan
& Ors. [2008 (3) SCC 748] has held that in
case of contributory negligence, injured
need
not
establish
the
extent
of
responsibility
of
each
wrong
doer
separately, nor is it necessary for the court
to determine the extent of liability of each
9 All. Smt. Rahisa Begum (since deceased) & Anr. Vs. Shri Susheel Chandra Gupta & Anr.
415
wrong doer separately. It is only in the case
of contributory negligence that the injured
himself has contributed by his negligence
in the accident. Extent of his negligence is
required to be determined as damages
recoverable by him in respect of the
injuries have to be reduced in proportion to
his contributory negligence. The relevant
portion is extracted hereunder :

"6. 'Composite negligence' refers
to the negligence on the part of two or
more persons. Where a person is injured as
a result of negligence on the part of two or
more wrong doers, it is said that the person
was injured on account of the composite
negligence of those wrong-doers. In such a
case, each wrong doer, is jointly and
severally liable to the injured for payment
of the entire damages and the injured
person has the choice of proceeding
against all or any of them. In such a case,
the injured need not establish the extent of
responsibility
of
each
wrong-doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong-doer separately. On the other hand
where a person suffers injury, partly due to
the negligence on the part of another
person or persons, and partly as a result of
his own negligence, then the negligence of
the part of the injured which contributed to
the accident is referred to as his
contributory negligence. Where the injured
is guilty of some negligence, his claim for
damages is not defeated merely by reason
of the negligence on his part but the
damages recoverable by him in respect of
the injuries stands reduced in proportion to
his contributory negligence.

7. Therefore, when two vehicles
are involved in an accident, and one of the
drivers claims compensation from the other
driver alleging negligence, and the other
driver denies negligence or claims that the
injured claimant himself was negligent,
then it becomes necessary to consider
whether the injured claimant was negligent
and if so, whether he was solely or partly
responsible for the accident and the extent
of his responsibility, that is his contributory
negligence. Therefore where the injured is
himself partly liable, the principle of
'composite negligence' will not apply nor
can there be an automatic inference that
the negligence was 50:50 as has been
assumed in this case. The Tribunal ought to
have examined the extent of contributory
negligence of the appellant and thereby
avoided
confusion
between
composite
negligence and contributory negligence.
The High Court has failed to correct the
said error."

18.
This
Court
in
Challa
Bharathamma &Nanjappan (supra) has
dealt with the breach of policy conditions
by the owner when the insurer was asked to
pay the compensation fixed by the tribunal
and the right to recover the same was given
to the insurer in the executing court
concerned if the dispute between the
insurer and the owner was the subjectmatter of determination for the tribunal
and the issue has been decided in favour of
the insured. The same analogy can be
applied to the instant cases as the liability
of the joint tort feasor is joint and several.
In the instant case, there is determination
of inter se liability of composite negligence
to the extent of negligence of 2/3rd and
1/3rd of respective drivers. Thus, the
vehicle - trailor-truck which was not
insured with the insurer, was negligent to
the extent of 2/3rd. It would be open to the
insurer being insurer of the bus after
making payment to claimant to recover
from the owner of the trailor-truck the
amount to the aforesaid extent in the
execution proceedings. Had there been no
determination of the inter se liability for
want of evidence or other joint tort feasor
416 INDIAN LAW REPORTS ALLAHABAD SERIES
had not been impleaded, it was not open to
settle such a dispute and to recover the
amount in execution proceedings but the
remedy would be to file another suit or
appropriate proceedings in accordance
with law.

What emerges from the aforesaid
discussion is as follows :

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

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

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

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

12. The latest decision of the Apex
Court in Khenyei (Supra) has laid down
one further aspect about considering the
negligence
more
particularly
composite/contributory
negligence.
The
deceased or the person concerned should be
shown to have contributed either to the
accident and the impact of accident upon
the victim could have been minimised if he
had taken care. In this case the deceased
was not the author or the co-author of the
accident. On facts, the deceased was not
plying the vehicle. Hence, the deduction of
50% from the compensation awarded is bad
and is set aside.

13. The issue which has been
decided by the Tribunal, as far as issue
no.1 is concerned, the court below has
come to the conclusion that driver of the
offending vehicle has not come to the
right side. The finding of fact regarding
contributory negligence of the driver of
the Maruti Car, we are of the considered
opinion that the submissions made by
the counsel for the claimant-appellant do
not satisfy the conscious in this regard
and
that
the
findings
as
far
as
contributory negligence of the deceased
is concerned, it cannot be interfered
with. However, the contribution of the
deceased in the accident would be 25%
and not equal as the vehicles were of
unequal magnitude. The deceased was
himself driving the vehicle. The tanker
dashed the car from the front side. The
driver of the Truck had not appeared
before the Tribunal. The P.W.2 Shiv
Singh, is the eye witness of the accident,
hence his evidence is relevant, which is
reproduced as under:
9 All. Smt. Rahisa Begum (since deceased) & Anr. Vs. Shri Susheel Chandra Gupta & Anr.
417

"P.W.2-Shiv Singh, who is said to
be eye witness of the occurrence, has stated
that on 14.04.2006 at 9.45 p.m., near Dixit
Market, Kalpi Road, Kanpur, he was
standing and then, saw that a Tanker No.
UP-78-T-6419 being driven rashly and
negligently by it's driver, hit the Maruti
Car No. UP-78-AD-1768 coming on wrong
side from front side, as a result of which
the driver of the alleged Maruti Car was
seriously injured and the alleged Maruti
Car was also badly damaged. Such
accident was occurred due to rash and
negligent driving of the Tanker's driver,
who at fault. He had got lodged the FIR of
this occurrence. The police also recorded
his statement regarding the accident in
question."

"In this very case, the driver of
the offending vehicle i.e. Tanker's driver
was the most important witness of the
alleged accident but he has not dared to
come in the witness box. In the absence of
any unexpected development, it was for him
to explain as to how the accident took place
but no such explanation has been given by
him in respect of the alleged accident.
Under these circumstances, I have no valid
reason to disbelieve the statements of the
witnesses, who have examined in the court
in respect of the accident in question,
particularly, when no oral or documentary
evidence has been adduced on behalf of the
opp. Parties.

From the perusal of the site-plan
paper no.21-C, it reveals that the mark ''A'
has been shown as the place of occurrence.
It is crystal clear that the tanker was being
driven by it's driver on wrong side of the
road, hit the Maruti Car on front side.
There is head on collision between two
vehicles involved in the alleged accident.

From
the
discussions
made
above, I come to the conclusion that the
accident in question was occurred due to
contributory negligence on the part of the
drivers of both the vehicles involved in the
alleged accident, on the alleged date, time
and place."

14. The driver of the Tanker did not
appear before the Tribunal despite that the
learned Tribunal has returned the finding
that deceased was also negligent. The
judgments of Pramodkumar Rasikbhai
Jhaveri Vs. Karmasey Kunvargi Tak
and others decided on 05.08.2002 in
Appeal (Civil) No. 5436 of 1994, (2) Raj
Rani and others Vs. Oriental Insurance
Company Limited and others decided on
06.05.2009 in Civil Appeal No. 33-3318 of
2009 (Arising out of SLP ( C) Nos. 279227793 of 2008) and (3) Archit Saini Vs.
Oriental Insurance Company Ltd. And
others, 2018 ) AIR (SC) 1143, will also
permit us to revaluate the percentage of the
negligence of the deceased. The reason
being the Tanker was being driven in rash
and negligent when hit the Maruti Car, just
because there was head collision of both
the vehicles involved, only because of that
it cannot be said that drivers of both the
vehicles had contributed to the accident
having taken place. We are unable to
accept the submissions of the counsel for
respondents that the deceased was more
negligent but we uphold the finding of
negligence of the driver of the Maruti Car,
but we cannot hold him negligent even to
the tune of 10%. From the attending
circumstances also and the findings of fact
no reasons are given why in last paragraphs
the learned Tribunal has returned the
finding that drivers are negligent.

15. The Tribunal has held that the
deceased too was negligent in driving the
vehicle. The reasoning given by the
Tribunal to hold the deceased negligent and
that he had contributed to 50% of the
418 INDIAN LAW REPORTS ALLAHABAD SERIES
accident is perverse, just because there was
collision of two vehicles, and that the
driver of the car was having valid driving
license and the registration of the vehicle
was there and just because the the license
of the deceased was not produced before
the Tribunal, it cannot mean that he was
negligent. The ocular version of P.W.3 on
the contrary goes to show that the deceased
was driving his Maruti Car on his correct
side. Thus, the finding on facts is not only
bad in law but is perverse, therefore, we
hold that the Tribunal has committed an
error in holding the deceased to have
contributed to the accident having taken
place. The vehicle involved in the accident
is Car and Tanker. This finding of Tribunal
is perverse because the driver of Tanker has
not been stepped in witness box. The
Tanker was driven on the road on wrong
side, despite that without assigning any
reason negligence to the tune of 50% is
attributed, is perverse. The Tribunal is
expected to give reasons for the finding it
arises that.

COMPENSATION:-

16. Learned counsel for appellant has
relied on the decision of the Apex Court
titled as Montford Brothers of St. Gabriel
and another Vs. United India Insurance
and another, 2014 1 ACC 461 and on the
judgment
of
Gujarat
State
Road
Transport Corporation, Ahmedabad Vs.
Ramanbhai Prabhatbhai and the learned
counsel for respondent has relied on the
decision of Apex Court in National
Insurance Company Ltd. Vs. Birender
and others, 2020 LawSuit (SC) 26, so as
to contend that the dependents of the
deceased, who has received benefits would
not be entitled for the same. The learned
counsel for the appellant has also relied on
the said judgment.

17. Learned counsel for appellant has
further
relied
on
the
authoritative
pronouncements of this High Court in
Oriental Insurance Company Ltd. Vs.
Mangey Ram and others (Supra), Uttar
Pradesh
State
Road
Transport
Corporation
Vs.
Tara
Devi,
1995
LawSuit (All) 13, and Padma Devi Vs. .P.
State Road Transport Corporation, 1988
LawSuit (All) 235, to contend that non
grant
of
compensation
except
non
pecuniary damages is against mandate of
this Court.

18. It is submitted that the Tribunal
has not granted any amount towards future
loss of income to the claimants which is
required to be granted in view of the
decision in National Insurance Company
Limited Vs. Pranay Sethi and Others,
2017 0 Supreme (SC) 1050. It is further
submitted that the multiplier, amount under
non-pecuniary heads are not awarded. The
interest awarded by the Tribunal is on the
lower side and requires enhancement.

19. Learned counsel for respondentinsurance
company
has
vehemently
submitted that the compensation cannot be
granted to the appellant and the grant of
compensation by the Tribunal is justified as
the legal heir or dependant of the deceased,
namely, the widow passed away during the
pendency of litigation. The sole heir is not
the dependant and was not dependant, who
is legal heir and therefore, he is not entitled
to the benefit other than granted by the
Tribunal known as non pecuniary damages
and therefore, the order of the Tribunal
does not call for any interference or
enhancement. The rate of interest granted
also does not call for any interference.

20. Recently the Division Bench in
which one of us (Hon'ble K.J. Thaker) had
9 All. Smt. Rahisa Begum (since deceased) & Anr. Vs. Shri Susheel Chandra Gupta & Anr.
419
an occasion to deal with the question of the
amount which would be admissible to the
family members of the deceased where the
family members were admittedly major.
The judgment titled as Satish Chand
Sharma (deceased) and three others Vs.
Manoj Kumar and another F.A.F.O. No.
3160 of 2018 decided on 26.03.2021,
therefore, it is submitted by the counsel for
appellant that non grant of any amount to
the legal heir is bad in the eye of law.

21. The motor accident claim is based
on the fact that the right to sue would
survive on the legal representative on the
date of incident occurred. The original
claimant widow would be entitled to the
compensation
and
the
right
to
compensation would accrue on the date of
the accident. It would be beneficial for us
to reproduce the provisions of Sections
166, 168 and 169 of the M.V. Act, 1988.

"166.
Application
for
compensation.-- (1) An application for
compensation arising out of an accident of
the nature specified in sub-section (1) of
Section 165 may be made--

(a) by the person who has
sustained the injury; or

(b) by the owner of the property;
or

(c) where death has resulted from
the accident, by all or any of the legal
representatives of the deceased; or

(d) by any agent duly authorised
by the person injured or all or any of the
legal representatives of the deceased, as
the case may be:

Provided that where all the legal
representatives of the deceased have not
joined
in
any
such
application
for
compensation, the application shall be
made on behalf of or for the benefit of all
the legal representatives of the deceased
and the legal representatives who have not
so
joined,
shall
be
impleaded
as
respondents to the application.

(2) Every application under subsection (1) shall be made, at the option of
the claimant, either to the Claims Tribunal
having jurisdiction over the area in which
the accident occurred, or to the Claims
Tribunal within the local limits of whose
jurisdiction the claimant resides or carries
on business or within the local limits of
whose jurisdiction the defendant resides,
and shall be in such form and contain such
particulars as may be prescribed:

Provided that where no claim for
compensation under Section 140 is made in
such application, the application shall
contain a separate statement to that effect
immediately before the signature of the
applicant.

(3) * * * *

(4) The Claims Tribunal shall
treat any report of accidents forwarded to
it under sub-section (6) of Section 158 as
an application for compensation under this
Act."

"168. Award of the Claims
Tribunal.-

(1)
..................................................

(2)
..................................................

(3) When an award is made under
this section, the person who is required to
pay any amount in terms of such award
shall, within thirty days of the date of
announcing the award by the Claims
Tribunal,
deposit
the
entire
amount
awarded in such manner as the Claims
Tribunal may direct."

"Section - 169. Procedures And
Powers Of Claim Tribunals.-

(1) In holding any inquiry under
section 168, the Claims Tribunal may,
subject to any rules that may be made in
420 INDIAN LAW REPORTS ALLAHABAD SERIES
this behalf, follow such summary procedure
as it thinks fit.

(2) The Claims Tribunal shall
have all the powers of a Civil Court for the
purpose of taking evidence on oath and of
enforcing the attendance of witnesses and
of compelling the discovery and production
of documents and material objects and for
such other purposes as may be prescribed;
and the Claims Tribunal shall be deemed to
be a Civil Court for all the purposes of
section 195 and Chapter XXVI of the Code
of Criminal Procedure, 1973 (2 of 1974).

(3) Subject to any rules that may
be made in this behalf, the Claims Tribunal
may, for the purpose of adjudicating upon
any claim for compensation, choose one or
more persons possessing special knowledge
of and matter relevant to the inquiry to
assist it in holding the inquiry.

22. The recent judgment of Apex
Court in Oriental Insurance Company
Vs. Kahlon @ Jasmali Singh @ Kahlon,
LL 2021 SC 382, will enure also for
benefit of the appellants herein. The
compensation in these kind of litigation
will accrue on the date of the accident. The
legal heir comprised of wife, namely, the
widow and the son. The provisions of
Section 166 of the Motor Vehicle Act does
not provide that claimants should be
dependant of deceased. The term dependant
is not mentioned in Section 166 of Act, it is
legal representatives and therefore, not
granting any amount under the head of loss
of income for the loss of estate to the
widow of the deceased is arbitrary and
requires to be set aside and quashed.

23. We will have to deduct what was
the tax the deceased was liable and
therefore, the submission of counsel for
appellant that his income should be
considered as Rs.40,000/- per month being
a salaried person has to be accepted to
which as per the Uttar Pradesh Rules, 1998
and the judgment of New India Assurance
Company Ltd. Vs. Urmila Shukla and
others, LL 2021SC 359, we deem it fit to
add the amount of future loss of income as
he was below with the age of 50 years,
hence 30% will have to be added, which
would come to Rs.12,000/- per year. The
deceased was survived by his widow and
son, therefore, 1/2 will have to be deducted
towards the personal expenses of the
deceased and multiplier would be 13 as the
deceased died in the age bracket of (46-50
years). As far as amount under the head of
non-pecuniary damages are concerned, it
should be Rs.70,000/- will have to be added
in view of the decision of the Apex Court
in Pranay Sethi (Supra) plus 10%
increase for three years and out of which
10% will have to be deducted for
negligence of the deceased.

24. In view of the decisions cited
before us, it is very clear that in provisions
of Section 166 of the Motor Vehicle Act,
the word legal representative is the crux of
the matter. A widow will fall in Clause
(1)(a) of legal representative and therefore,
it cannot be said that the widow will not be
entitled to any amount under law of
compensation. Had the matter been decided
immediately after it was filed would
Tribunal have not granted the amount, the
answer is it would have cause of action
arises on the day on which the accident
occurs. In this view of the matter, the
finding of the Tribunal is contrary to the
well settled legal principles. The judgment
in 1988 ACJ page 667 (Alld) and 1996 (1)
TAC page 614 (Alld) holding that an adult
person having wife and children are not
entitled for any compensation and they
cannot be deemed to be dependant on his
father or mother. This finding in the year
9 All. Smt. Rahisa Begum (since deceased) & Anr. Vs. Shri Susheel Chandra Gupta & Anr.
421
2009 is not sustainable in view of decision
in the case of Padma Devi (Supra).

25. The decisions cited by the counsel
for appellant shall have recent origin and
which relate to the definition of legal
representative and the fact that term legal
representative has been given very wide
connotation as has been in the judgment of
Montford brothers (Supra) because the
term legal representative has not been
given in the Motor Vehicle Act but Section
2(11) of Civil Procedure Code will have to
be taken into consideration.

26. We would alter the principle of
deduction for personal expenses. The
deceased had a major son, who cannot be
said to be dependant on father or mother.
The only dependant on him would be his
widow and therefore, it can be safely said
that he would be spending half of the
income on himself being salaried person
and therefore, Rs.52,000/- would have to be
halved.

27. We do not disturb the rate of
interest granted by the Tribunal looking to the
fact that appeal has remain pending for no
fault of the insurance company, hence we do
not deem it fit enhancing the rate of interest.

28. Having heard the counsel for the
parties and considered the factual data, this
Court found that the accident occurred on
14.4.2006 causing death of Hasim Ali who
was 48 years of age and left behind him,
his widow and son. The deceased who was
working as Senior Operator (Field) in
Indian Oil Corporation and was getting
salary Rs.43,501/- per month. Out of which
permissible deductions under Income Tax
would be deducted, we round up the
income at Rs.40,000/- per month. The
deceased was died at the age of 48 years
(46-50 years), hence 30% will have to be
added in view of the decision of the
Pranay Sethi (Supra).

29. We have come to the conclusion
that the deceased had also contributed to
the accident taking place, reason being
though the Tribunal has not given its
reasoning for holding him negligent. The
impact of the accident would show that
there was some contributory negligence on
the part of the deceased and therefore, we
hold the deceased upto 10% negligent.

30. The deceased being married, the
deduction towards personal expenses of the
deceased should be 1/3 but here as narrated
above it would be on the dependant namely
widow, would be 1/2 in view of the
decisions relied on by the counsel for
appellant. As far as the multiplier is
concerned, the deceased being in the age
bracket of 46-50 years, it should be 13 in
view of the decision of the Apex Court in
Sarla
Verma
Vs.
Delhi
Transport
Corporation, (2009) 6 SCC 12.

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

i. Income: Rs.40,000/-

ii. Percentage towards future
prospects : Rs.12,000/- (30%)

iii. Total income : Rs. 40,000 +
12000 = Rs. 52,000/-

iv. Income after deduction of 1/2:
Rs. 26,000/-

v. Annual income : Rs. 26,000 x
12 = Rs.3,12,000/-

vi. Multiplier applicable : 13

vii.
Loss
of
dependency:
Rs.3,12,000 x 13 = Rs.40,56,000/-

viii.
Amount
towards
non
pecuniary damages : Rs.70,000/-
422 INDIAN LAW REPORTS ALLAHABAD SERIES

ix.
Total
compensation
:Rs.41,26,000/-

32.