# Smt. Raj Bala & Ors v. Pravesh Kumar Anand & Anr

- **Citation:** (2022) 7 ILRA 306
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-31
- **Case number:** First Appeal From Order No. 2631 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-raj-bala-ors-v-pravesh-kumar-anand-anr-48885
- **Pages:** 7

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Section -166 - UP Motor Vehicle Rules,
2011 - Rule 220 - Income tax Act, 1961 -
Section 194-A(3)(ix): - Appeal - for
enhancement
of
compensation
-
accident
-
due
to
contributory
negligence
-
while
awarding
compensation future loss was not taken
in to account - since accident took place
in year 2004 and the State Rules, 2011
is came into force in year 2011 - being
settled of Hon'ble Apex - claimants
cannot be deprived of this benefit
though the rules are silent - therefore,
as per the law lay down by the Hon'ble
Apex Court - compensation awarded by
the tribunal, enhanced as from Rs.
9,87,300 with 7% rate of interest to Rs.
38,03,360/- with 7.5% rate of interest -
Appeal is partly Allowed.
 (Para -4, 13, 14, 15, 16)

Appeal - partly allowed. (E-11)

List of Cases cited: -

## Text

306 INDIAN LAW REPORTS ALLAHABAD SERIES
passed in each of the appeals are modified
and compensation enhanced, including
interest, as directed hereinabove. The
claimants in each of the appeals shall be
entitled to payment of the enhanced
compensation with inter se share thereof in
the same terms, as directed by the Tribunal.
The claimants shall also be entitled to their
costs in the respective appeals.
----------
(2022)07ILR A306
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.03.2022

BEFORE

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

First Appeal From Order No. 2631 of 2008

Smt. Raj Bala & Ors. ...Appellants
Versus
Pravesh Kumar Anand & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Devendra Dahma

Counsel for the Respondent:
Sri Vipul Kumar, Sri Pawan Kumar Singh

Civil Law - Motor Vehicles Act, 1988 -
Section -166 - UP Motor Vehicle Rules,
2011 - Rule 220 - Income tax Act, 1961 -
Section 194-A(3)(ix): - Appeal - for
enhancement
of
compensation
-
accident
-
due
to
contributory
negligence
-
while
awarding
compensation future loss was not taken
in to account - since accident took place
in year 2004 and the State Rules, 2011
is came into force in year 2011 - being
settled of Hon'ble Apex - claimants
cannot be deprived of this benefit
though the rules are silent - therefore,
as per the law lay down by the Hon'ble
Apex Court - compensation awarded by
the tribunal, enhanced as from Rs.
9,87,300 with 7% rate of interest to Rs.
38,03,360/- with 7.5% rate of interest -
Appeal is partly Allowed.
 (Para -4, 13, 14, 15, 16)

Appeal - partly allowed. (E-11)

List of Cases cited: -

1. Smt. Raj Bala & ors. Vs Parvesh Kumar & anr.,
M.A.C.P. No.204 of 2004, dated 12.5.2008

2. Pappu Deo Yadav Vs Naresh Kumar, AIR 2020
SC 4424

3. Erudhaya Priya Vs State Express Transport
Corporation Ltd., AIR 2020 SC 4284

4. Karthik Subramanian Vs B. Sarath Babu &
Anr., 2021 ACJ 993

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

6. Khenyei Vs New India Assurance Co. Ltd. &
ors., (2015) 0 Supreme(SC) 397

7. T.O. Anthony Vs Karvarnan & ors., (2008) 0
Supreme(SC) 157

8. Rahisa Begum Since Deceased & anr. Vs
Susheel Chandra Gupta & anr., 2021 LawSuit
(All) 805

9. Meera Devi & anr. Vs HRTC & ors., (2014) 0
Supreme(SC) 194

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

11. Vimal Kanwar & ors. Vs Kishore Dan & ors.,
(2013) 7 SCC 476

12. Malarvizhi & ors. Vs United India Insurance
Co. Ltd & anr., (2020) 4 SCC 228

13. Yadava Kumar Vs Divisional Manager,
National Insurance Co. Ltd, (2010) 10 SCC
341

14. National Insurance Co. Vs Pranay Sethi,
2014 (4) TAC 637 (SC)
7 All. Smt. Raj Bala & Ors. Vs. Pravesh Kumar Anand & Anr.
307
15. Smt. Sarla Verma Vs Delhi Transport
Corporation, 2009 (2) TAC 677 (SC)

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

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

18. 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

19. Rylands V/s. Fletcher, (1868) 3 HL (LR) 330

20. Jacob Mathew Vs State of Punjab, (2005) 0
ACJ(SC) 1840)

21. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Company Ltd., 2007 (2) GLH 291

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

1. By way of this appeal, the
claimants-appellants have approached this
Court for enhancement of compensation
awarded to appellants-claimants by Motor
Accident Claims Tribunal/Senior District
Judge, Ghaziabad ('Tribunal', for short),
vide judgment/award dated 12.5.2008 in
M.A.C.P. No.204 of 2004 (Smt. Raj Bala
And Others vs. Parvesh Kumar And
Another) whereby claimants/appellants was
awarded Rs.9,87,300/-, with 7% rate of
interest as compensation.

2. Heard Shri Devendra Dhama,
learned
counsel
for
the
appellantsclaimants and Shri Pawan Kumar Singh for
the respondents-Insurance Company. None
appears for the owner.

3. The accident involving the vehicle,
though denied by the driver in his evidence,
has been held by the Tribunal to be
involved in the accident and the finding of
fact that the accident occurred on 11.2.2004
involving the vehicle insured by the
respondents has attained finality. Secondly,
the finding of facts that the deceased,
namely, Suresh Chandra, aged about 46
years worked in Nagar Telephone Nigam
Ltd, Tugalkabad, New Delhi and left his
widow, two sons and a daughter are also
not in dispute. The income of the deceased
is also not in dispute. The twin questions
raised for our consideration for which this
Court is called upon to decide are findings
of the Tribunal as to whether the deceased
driving motorcycle was a contributor to the
accident had taken place to the tune of 50%
and whether the compensation awarded by
the Tribunal was in consonance with the
principles enunciated by the Apex Court in
catena
of
decisions
for
computing
compensation.

4. As far as the compensation to be
granted is concerned, learned counsel for
the Insurance Company has submitted that
in the State of Uttar Pradesh Rule 220 of
the Uttar Pradesh Motor Vehicle Rules,
2011, came into force in the year 2011 and
hence, no future loss of income could be
granted as in this case accident occurred in
the year 2007. The Apex Court has held
that future loss of income has to be
awarded whether the rules specify or not.
This is an accident of the year 2007. Just
because the rules are silent, the claimants
cannot be deprived of this benefit. In catena
of decisions even prior to the year 2011
future loss of income was considered to be
added to income of deceased. We cannot
accept the submission of Sri Pawan Kumar
Singh, learned counsel for the respondentInsurance Company as in catena of
decisions which are binding on this Court
namely Pappu Deo Yadav Vs. Naresh
Kumar, AIR 2020 SC 4424, Erudhaya
Priya Vs. State Express Transport
308 INDIAN LAW REPORTS ALLAHABAD SERIES
Corporation Ltd., AIR 2020 SC 4284 and
Karthik Subramanian Vs. B. Sarath
Babu & Anr., reported in 2021 ACJ 993
have laid down the principle that future loss
of income has to be granted.

5. As far as the negligence is concerned,
Shri Dhama, learned counsel for the
appellants, has taken us to the evidence of
four witnesses and the evidence of the driver
of the opponent, who has stepped into the
witness box. Learned counsel for the
appellants has submitted that 50% decided to
be contribution of appellants in view of the
judgment in the case of Archit Saini and
another vs. Oriental Insurance Co.Ltd., AIR
2018 (SC) 1143 is bad particularly when the
Tribunal has returned the finding to this effect
that the deceased was on correct side. The
evidence of PW4, namely, Sunil Kumar, is on
record, where the witness has deposed that it
was one way path and the accident occurred
in side lane where the driver of the opponent
could not have come with his tempo and,
therefore, it is submitted that in view of the
judgments quoted herein below the finding
holding the deceased to be guilty of 50% is
bad, (a) Khenyei vs. New India Assurance
Co.Ltd. & others, 2015 0 Supreme(SC) 397;
(b) T.O.Anthony vs. Karvarnan and others,
2008 0 Supreme(SC) 157 (c) Rahisa Begum
Since Deceased and another vs. Susheel
Chandra Gupta and another, 2021 LawSuit
(All) 805; and (d) Meera Devi and another
vs. HRTC and others, 2014 0 Supreme(SC)
194.

6. It has also been contended by Shri
Dhama, learned counsel for the claimants
that there was no negligence on the part of
the deceased and the finding of fact of the
Tribunal is bad in the eye of law.

7. Shri Pawan Kumar Singh, learned
counsel appearing for the respondentInsurance
Company,
has
vehemently
submitted that from the site-plan, it can be
seen that the accident had not taken place
on the one-way road. It was the evidence of
the driver of the said vehicle and that too in
the findings returned by the Tribunal,
therefore, it is just and proper that the road
was not one-way. The deceased had
contributed to the accident, which had
taken place. It is further submitted that the
Tribunal has shown leniency in not
considering the deceased to be 100%
negligent.

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 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
7 All. Smt. Raj Bala & Ors. Vs. Pravesh Kumar Anand & Anr.
309
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. Clause6 of such Regulation clearly directs that the
driver of every motor vehicle to slow down
vehicle at every intersection or junction of
roads or at a turning of the road. It is also
provided that driver of the vehicle should
not enter intersection or junction of roads
unless he makes sure that he would not
thereby endanger any other person. Merely,
because driver of the Truck was driving
vehicle on the left side of road would not
absolve him from his responsibility to slow
down vehicle as he approaches intersection
of roads, particularly when he could have
easily seen, that the car over which
deceased was riding, was approaching
intersection.

19. In view of the fast and constantly
increasing volume of traffic, motor vehicles
upon roads may be regarded to some extent
as coming within the principle of liability
defined in Rylands V/s. Fletcher, (1868) 3
HL (LR) 330. From the point of view of
pedestrian, the roads of this country have
been rendered by the use of motor vehicles,
highly dangerous. 'Hit and run' cases
where drivers of motor vehicles who have
caused accidents, are unknown. In fact
such cases are increasing in number. Where
a pedestrian without negligence on his part
is injured or killed by a motorist, whether
negligently or not, he or his legal
representatives, as the case may be, should
be entitled to recover damages if principle
of social justice should have any meaning
at all.
20. These provisions (section 110A and
sec.110B of Motor Act, 1988) are not
merely
procedural
provisions.
They
substantively affect the rights of the parties.
The right of action created by Fatal
Accidents Act, 1855 was 'new in its species,
new in its quality, new in its principles. In
every way it was new. The right given to
legal representatives under Act, 1988 to file
an application for compensation for death
due to a motor vehicle accident is an
enlarged one. This right cannot be hedged
in by limitations of an action under Fatal
Accidents Act, 1855. New situations and
new dangers require new strategies and
new remedies.

21. In the light of the above
discussion, we are of the view that even if
courts may not by interpretation displace
310 INDIAN LAW REPORTS ALLAHABAD SERIES
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 )

10. In view of the judgments relied by
counsel for the appellants and the factual
scenario, we are unable to accept the
submissions of Shri Pawan Kumar Singh,
learned counsel for the Insurance Company
that the accident occurred due to coauthorship of the deceased.

11. In such view of the matter, the
impact of the motorcycle, which according
to the witnesses and even the finding
returned by the Tribunal was on its correct
side, we would consider the alternative
submission of Shri Pawan Kumar Singh
that it was not a one way road when there is
a clinching evidence that the driver of the
motorcycle was driving the motorcycle on
correct side, this is also finding of fact by
the Tribunal. The site-plan according to the
decision of Archit Saini (supra) can not be
the sole conclusion of the negligence.
Hence, submission of Shri Pawan Kumar
Singh cannot be acceded as is against
weight of evidence on record. Even if we
go by the submission of Shri Pawan Kumar
Singh, a bare scanning of the siteplan
would also not permit us to accept his
submission as site-plan goes to show that it
is against the version of the driver of the
tempo, which is a light vehicle, but it is
bigger in size in comparison to the
motorcycle and driver of the tempo should
have been more cautious while driving the
same in a bye-lane. Therefore, we hold that
finding of fact of the Tribunal is bad in the
eye of law.

12. As far as compensation is
concerned, the matter is very simple. The
Tribunal could not have deducted HRA.
Learned counsel for the appellant even
pointed out to us that when we scan the
record it transpires that salary of the
deceased was considered after deducting
HRA, which is against the mandate of
Apex Court in the case of Vimal Kanwar
and others vs. Kishore Dan and others
(2013) 7 SCC 476.

13. We, therefore, are in full
agreement with Shri Pawan Kumar Singh
that the income tax has rightly been
deducted. The amount, which would be
considered to be datum figure would be
Rs.26,800/-. As the deceased was a
permanent employee and below the age of
50 years, 30% would have been added for
future loss of income as we are unable to
accept the submission of Shri Pawan
Kumar Singh that no addition for future
income can be granted as even in
Malarvizhi and others vs. United India
Insurance Co.Ltd and another [(2020) 4
SCC 228] and in Yadava Kumar vs.
Divisional Manager, National Insurance
Co.Ltd, [(2010) 10 Supreme Court Cases
7 All. Smt. Raj Bala & Ors. Vs. Pravesh Kumar Anand & Anr.
311
341] it is held in judgment of National
Insurance Company vs. Pranay Sethi
[2014 (4) TAC 637 (SC)] , would apply
retrospectively also. Hence the addition
will have to be granted. 1/3 should be
deducted for personal expenses of the
deceased. Multiplier of 13 would be just
and proper as the appellant was in the age
group of 50 Years as per Apex Court
judgment in Smt.Sarla Verma vs. Delhi
Transport Corporation [2009 (2) TAC 677
(SC)] .

14. Learned counsel for the appellant
submitted that due to inadvertance, medical
expenses are shown as Rs.10,00,000/-
should be read as Rs.1,00,000/- as the
deceased survived for two days, though, we
award
the
medical
expenses
to
be
Rs.80,000/- as it is awarded by the
Tribunal. Under the non-pecuniary heads,
Rs.15,000/- shall be awarded for loss of
estate, Rs.15,000/- for funeral expenses and
Rs.40,000/- shall be awarded under the
head of loss of consortium with upward
remission of 10% every three years,
rounded off lump-sum Rs.1,00,000/- as per
Pranay Sethi (supra).

15. Hence, the total compensation, in view
of the above discussions, payable to the
appellants-claimants is being computed
herein below:

i.
 Annual Income
Rs.26,
800/-
x 12
Rs.3,21,6
00/-
ii.
 Percentage
towards
FutureProspects (30%)

Rs.96,48
0/-
iii. Total Income
Rs.3,2
1,600/
-
+
Rs.96,
Rs.4,18,0
80/-
480/-
iv. Income
after
deduction of 1/3
Rs.4,1
8,080/
-
-
Rs.1,3
9,360/
-
Rs.2,78,7
20/-
v.
 Multiplier
applicable
13

vi. Loss
of
dependency
Rs.2,7
8,720/
- x 13
Rs.36,23,
360/-
Vii
.
 Medical Expenses
Rs.80,00
0/-
Vii
i.
 After adding Nonpecuniary
Damages
Rs.36,
23,36
0/-
+Rs.1
,00,00
0/-
Rs.37,03,
360/-
ix. Total
Compensation

Rs.38,03,
360/-

16. 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
312 INDIAN LAW REPORTS ALLAHABAD SERIES
reason to allow the interest in this matter at
any rate higher than that allowed by High
Court."

17. Learned Tribunal has awarded rate
of interest as 6% per annum but we are
fixing the rate of interest as 7.5% in the
light of the above judgment.

18. No other grounds were urged
when the matter was heard.

19. The appeal is partly allowed.
Judgment and award passed by the Tribunal
shall stand modified to the aforesaid extent.
The Insurance Company shall deposit the
amount within a period of 8 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.

20. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 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.

21. The records and proceedings be
sent back to the Tribunal for disbursement.
----------
(2022)07ILR A312
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Special Appeal Defective No. 162 of 2022

Raj Bali Singh ...Appellant
Versus
Sri Nitin Ramesh Gokaran & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Braj Lal

Counsel for the Respondents:
--

A. Special Appeal-Chapter VIII Rule 5 of
the Allahabad High Court Rules, 1952maintainability of -an appeal u/s 19 of the
Contempt of Court's Act 1971 would be
only from an order or a decision imposing
a punishment for contempt-the case at
hand the orders passed by the learned
Single Judge in exercise of contempt
jurisdiction merely dismiss the contempt
petition, such orders are not amenable to
appeal u/s 19 of the Contempt of Court's
Act, 1971-Chapter VII Rule 5 of the Courts
provides for an appeal to the Court from a
"Judgment"-the orders are not in any
manner
touching
the
merits
of
the