# Smt. Raj Kumari & Anr v. Sri Surendra Kumar & Anr

- **Citation:** (2022) 3 ILRA 888
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-10
- **Case number:** First Appeal From Order No. 2063 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-raj-kumari-anr-v-sri-surendra-kumar-anr-48254
- **Pages:** 5

## Headnote

Civil Law - Motor Vehicle Act, 1988 -
Quantum of compensation awarded - deceased
- a student of B.D.S. 1st year, -income be at
least Rs.10,000/- per month - applicable
multiplier would be 18 - Rs. 1,00,000/- for non
pecuniary damages - -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.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

888 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

14. 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 ACJ
(SC) 1840).

15. 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.

16. We cannot concur with the
learned Judge that it was not proved that
the truck driver had not driven the truck
rashly and negligently. The injuries suggest
that the truck driver on the bridge was
driving the vehicle rashly and negligently.
Hence, the said issue is answered in the
positive and in favour of the appellant. The
appreciation of evidence as held by the
Apex Court in the case of Kusum Lata,
Saroj and Vimla Devi (supra) will not
permit us to concur with the learned
Tribunal. The finding is perverse. They
have been decided by the Tribunal in
favour of the appellant herein.

17. As far as issue nos. 2 and 3 are
concerned, they have been decided by the
Tribunal.

18. The appeal is allowed. The matter
is remanded to the Tribunal for deciding
the issue of compensation only and,
therefore, presence of the claimants and the
Insurance company will alone be necessary
and they may be heard on the quantum of
compensation to be awarded. The record be
sent back to the Tribunal. The Tribunal to
decide the matter within 8 weeks from
today after hearing the Counsel for the
Insurance company and the Counsel for the
claimants. No fresh evidence is required in
the matter.
----------
(2022)03ILR A888
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIVEK VARMA, J.

First Appeal From Order No. 2063 of 2011

Smt. Raj Kumari & Anr. ...Appellants
Versus
Sri Surendra Kumar & Anr. ...Respondents

Counsel for the Appellants:
Anju Shukla, Sri Nigmendra Shukla, Sri
Anuj Shukla

Counsel for the Respondents:
3 All. Smt. Raj Kumari & Anr. Vs. Sri Surendra Kumar & Anr.
889
Civil Law - Motor Vehicle Act, 1988 -
Quantum of compensation awarded - deceased
- a student of B.D.S. 1st year, -income be at
least Rs.10,000/- per month - applicable
multiplier would be 18 - Rs. 1,00,000/- for non
pecuniary damages - -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.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Sakti Devi Vs New India Assurance Co. Ltd.
reported in 2010 (1) TAC page 4
2. Smt. Meena Pawaia & ors.Vs Ashraf Ali & ors.
2021 0 Supreme (SC) 694

3. Santosh Devi Vs National Insurance Co. Ltd.
(2012) 6 SCC 421

4. National Insurance Co. Limited Vs Pranay
Sethi & ors., AIR 2017 (SC) 5157

5. Reshma Kumari Vs Madan Mohan, (2013) 9
SCC 65

6. Sarla Verma Vs Delhi Transport Corporation,
(2009) 6 SCC 121

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

8. A.Vs Padma Vs Venugopal, Reported in 2012
(1) GLH (SC), 442

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

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Vivek Varma, J.)

1. As per office report dated
10.09.2019, notice dispatched to the
respondent nos.1 and 2 by registered post
AD has been returned undelivered. It is
also reported that as sufficient period has
elapsed from the date of issuance of notice,
hence service of notice upon respondent
nos. 1 and 2 is deemed sufficient in view of
Chapter VIII Rule 12 of the High Court
Rules.

2. Heard Sri Anuj Shukla and Sri
Nigmendra Shukla, learned counsels for the
appellants and perused the record.

3. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 28.01.2011 passed by the
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.9, Bulandshahr (hereinafter referred to
as 'Tribunal') in M.A.C. Case No. 73 of
2006 awarding a sum of Rs.1,52,000/- as
compensation with interest at the rate of
6%.

4. The accident is not in dispute. The
issue of negligence decided by the Tribunal
is also not in dispute. The only issue to be
decided is the quantum of compensation
awarded.

5. It is submitted by learned counsel
for the appellant that the deceased was 21
years of age at the time of accident and was
a student of BDS first year. The Tribunal
has considered the income of deceased to
be Rs.15,000/- per annum. The Tribunal
deducted 1/3 towards personal expenses,
considered the dependency as Rs. 10,000/-
per annum, granted multiplier of 15 and
added
Rs.
2,000/-
towards
funeral
expenses. The Tribunal on the basis of
above calculation granted Rs.1,52,000/- to
the claimants. The decision in the case of
Sakti Devi Vs. New India Assurance Co.
Ltd. reported in 2010 (1) TAC page 4 has
been relied upon by the Tribunal and that is
why the Tribunal has come to the
conclusion that income of the deceased can
890 INDIAN LAW REPORTS ALLAHABAD SERIES
be considered to be Rs. 15,000/- per
annum. The said view cannot stand scrutiny
by this Court is the submission of learned
counsel for the appellants.

6. In support of his submission,
learned counsel for the appellants has relied
upon a decision of the Supreme Court in
the case of Smt. Meena Pawaia & others
Vs. Ashraf Ali and others 2021 0 Supreme
(SC) 694 wherein the Apex Court has
considered the income of the deceased who
was in the age group of 21-22 years and
was 3rd year student in civil engineering to
be Rs. 10,000/- per month, even under the
Minimum Wages Act in the year 2012 and
granted the amount under the head of future
rise in income, though the income was
considered to be on notional side. The
Apex Court after considering the judgment
of Santosh Devi Vs. National Insurance
Co. Ltd. (2012) 6 SCC 421, National
Insurance Company Limited Vs. Pranay
Sethi and others, AIR 2017 (SC) 5157,
Reshma Kumari Vs. Madan Mohan,
(2013) 9 SCC 65 and Sarla Verma Vs.
Delhi Transport Corporation, (2009) 6
SCC 121, added 40% towards future loss of
income of the deceased.

7. It is further submitted by learned
counsel
for
the
appellants
that
the
multiplier, amount loss of income and the
interest awarded by the Tribunal are on the
lower side and are required to be enhanced
in view of the above decisions of the Apex
Court.

8. Having heard the learned counsel
for the appellant and considered the
decisions of the Apex Court, we are of
the view that the income of the deceased
who was a student of B.D.S. 1st year,
would be at least Rs.10,000/- per month.
To which, as the deceased was below 40
years of age, 40% should be added
towards future loss of income of the
deceased. As the deceased was bachelor
and had mother and father, he would be
spending 50% of the said amount for his
personal
expenses
hence,
deduction
towards
personal
expenses
of
the
deceased would be 1/2 and not 1/3rd as
has been done by the Tribunal. The
multiplier of 15 applied by the Tribunal
on the basis of age of the parents is bad,
as it should be on the basis of the age of
the deceased who was in the age bracket
of 21-25 years. Hence, the applicable
multiplier would be 18. We are supported
in our view by the decision of the Apex
Court in Smt. Meena Pawaiwa (Supra).
The Tribunal added only Rs. 2000/- and
has not granted any amount under the
head of Funeral and consortium to the
parents. We see no reason why the
principle enunciated by the Apex Court in
Smt.
Meena
Pawaia
(supra)
and
Pranay Sethi (supra) should not be
made applicable wherein the Apex Court
has granted Rs.70,000/- towards non
pecuniary damages. We grant Rs.70,000/-
towards non pecuniary damages on which
the claimants shall also be entitled to
10% rise in every three years as held by
the Apex Court in Pranay Sethi (Supra)
and, therefore, we make the figure to Rs.
1,00,000/- for non pecuniary damages.

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

i. Income: Rs.10,000/-

ii. Percentage towards future
prospects : 40% namely Rs.4000/-

iii. Total income : Rs.10,000 +
4000 = Rs.14,000/-
3 All. Smt. Raj Kumari & Anr. Vs. Sri Surendra Kumar & Anr.
891

iv. Income after deduction of 1/2
towards personal expenses : Rs.7,000/-

v. Annual income : Rs.7,000 x 12
= Rs.84,000/-

vi. Multiplier applicable : 18

vii.
Loss
of
dependency:
Rs.84,000 x 18 = Rs.15,12,000/-

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

ix.
Total
compensation
:
Rs.16,12,000/-

10. 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."

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

12. 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 respondentInsurance 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. Record be
transmitted to Tribunal.

13. 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.

14. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguti 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
892 INDIAN LAW REPORTS ALLAHABAD SERIES
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
while disbursing the amount.

15.

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.

16. This Court is thankful to both the
counsels for getting this old matter decided.
----------
(2022)03ILR A892
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2022

BEFORE

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

First Appeal From Order No.2629 of 2005

Smt. Mushtari Begum & Ors. ...Appellants
Versus
National Insurance Company Ltd. & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Arun Prakash, Sri Ram Singh

Counsel for the Respondents:

Civil Law - Motor Vehicle Act, 1988 - Appeal
for enhancement
- amount for loss
of
consortium and for funeral expenses- are on
very lower side - it is admitted fact that the age
of the deceased was 40 years - his assessed
income is on lower side - Tribunal has not added
any percentage of amount towards future loss
of income - grave error - rate of interest as
7.5%.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Mushtari Begum & ors. Vs Kamla Shankar &
ors. M.A.C.P. No. 308 of 1999
2. National Insurance Company Vs Pranay Sethi
[2014 (4) TAC 637 (SC)

3. Sarla Verma & ors. Vs Delhi Transport
Corporation & anr., 2009 Lawsuit (SC) 613

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

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

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

7. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd. First Appeal From
Order No.2871 of 2016
(Delivered by Hon'ble Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by
the
claimants-appellants
against
the
judgment and award dated 19.07.2005
passed
by
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.1, Azamgarh (hereinafter referred to as
''Tribunal') in M.A.C.P. No. 308 of 1999
(Mushtari Begum and others Vs. Kamla
Shankar and others), whereby the learned
Tribunal
has
awarded
a
sum
of
Rs.3,67,000/- as compensation to the
claimants with interest at the rate of 6% per
annum.

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