# Smt. Raj Mala & Ors v. Sri Surendra Kapoor & Anr

- **Citation:** (2022) 5 ILRA 768
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-25
- **Case number:** First Appeal From Order No. 1466 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-raj-mala-ors-v-sri-surendra-kapoor-anr-48586
- **Pages:** 5

## Headnote

A. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - accident
took place on 6.5.2008 - deceased date
of Birth was 1.7.1975 as recorded in
School Leaving Certificate and the date
of accident was 6.5.2008 therefore the
deceased was 33 years of age at the
time of accident - deceased was earning
Rs 12,000 per month as Plant Operator
in PNC Construction Company Ltd - Held
- Tribunal has fallen in error in not
considering the salary certificate as well
as
the
evidence
led
before
it,
documentary evidence 41 G which is the
order of deployment of staff dated
18.1.2006, documentary evidence 24 G
dated
30.6.2008,
where
it
was
specifically mentioned that deceased
last drawn salary was Rs. 12,000 per
month - Multiplier of 16 is granted as
the deceased was in the age bracket of
31 to 35 - deceased left behind him, four
minor children and his widow, hence
deduction towards personal expenses
would be 1/4th - Rs. 70,000 granted
under the non pecuniary heads and Rs.
50,000 each to the minor children -
claimants would be entitled to 7.5%
rate
of
interest
on
the
enhanced
compensation
-
As
10
years
have
elapsed, amount be deposited in the
Saving
Account
of
claimants
in
Nationalized Bank without F.D.R. (Para
12, 13, 19)
Allowed. (E-5)

List of Cases cited:

## Text

768 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

14. Record be sent back to tribunal
forthwith.

15. This Court is thankful to both the
learned Advocates for ably assisting this
Court.
----------
(2022)05ILR A768
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2022

BEFORE

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

First Appeal From Order No. 1466 of 2021

Smt. Raj Mala & Ors. ...Appellants
Versus
Sri Surendra Kapoor & Anr. ...Respondents

Counsel for the Appellants:
Sri Brij Raj Singh, Sri Amit Kumar Singh

Counsel for the Respondents:
Sri Vipul Kumar, Sri Siddharth Jaiswal

A. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - accident
took place on 6.5.2008 - deceased date
of Birth was 1.7.1975 as recorded in
School Leaving Certificate and the date
of accident was 6.5.2008 therefore the
deceased was 33 years of age at the
time of accident - deceased was earning
Rs 12,000 per month as Plant Operator
in PNC Construction Company Ltd - Held
- Tribunal has fallen in error in not
considering the salary certificate as well
as
the
evidence
led
before
it,
documentary evidence 41 G which is the
order of deployment of staff dated
18.1.2006, documentary evidence 24 G
dated
30.6.2008,
where
it
was
specifically mentioned that deceased
last drawn salary was Rs. 12,000 per
month - Multiplier of 16 is granted as
the deceased was in the age bracket of
31 to 35 - deceased left behind him, four
minor children and his widow, hence
deduction towards personal expenses
would be 1/4th - Rs. 70,000 granted
under the non pecuniary heads and Rs.
50,000 each to the minor children -
claimants would be entitled to 7.5%
rate
of
interest
on
the
enhanced
compensation
-
As
10
years
have
elapsed, amount be deposited in the
Saving
Account
of
claimants
in
Nationalized Bank without F.D.R. (Para
12, 13, 19)
Allowed. (E-5)

List of Cases cited:

1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 LawSuit (SC) 1093

2. Sarla Verma & ors. Vs Delhi Transport
Corporation & anr., 2009 LawSuit (SC)

3. A.P.S.R.T.C. & ors. v. M. Ramadevi & ors.,
2008 (1) T.A.C. 714 SC

4. National Insurance Co. Ltd. v. Indira
Srivastava & ors., (2008) 2 SCC 763

5. Asha & ors. Vs United India Insurance Co.
Ltd. & anr., (2008) 2 SCC 744

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

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

8. Smt. Sudesna & ors. Vs Hari Singh & anr.
Review Application No.1 of 2020 in First Appeal
From Order No.23 of 2001
5 All. Smt. Raj Mala & Ors. Vs. Sri Surendra Kapoor & Anr.
769
9. Bajaj Allianz General Insurance Co. Pvt. Ltd.
& ors. Vs U.O.I. & ors. dated 27.1.2022

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

1. Heard Sri Amit Kumar Singh,
learned counsel for the appellants and Sri
Siddharth Jaiswal, learned counsel for
respondent-Insurance Company.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 14.12.2009 passed by the
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.16, Agra (hereinafter referred to as
'Tribunal') in Claim Petition No.563 of
2008 awarding a sum of Rs.3,69,500/- as
compensation with interest at the rate of
6% from date of filing of the claim petition.

3. 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.

4. The accident took place on
6.5.2008. The deceased, as per the
claimants, was 33 years of age at the time
of accident but the Tribunal has considered
his age to be 40 to 45 years. The Tribunal
considered his income to be Rs.3,000/- per
month, deducted 1/3rd towards personal
expenses
of
the
deceased,
granted
multiplier of 15, awarded Rs.9,500/-
towards non pecuniary damages and has
calculated the total compensation to be
Rs.3,69,500/-

5. It is submitted by learned counsel
for the appellants that the deceased was
earning Rs.12,000/- per month as Plant
Operator in PNC Construction Company
Ltd. Agra, however, the Tribunal has
assessed his income to be Rs.3,000/- which
is bad and it should be 12,000/- per month.
It is further submitted that the Tribunal has
not granted any amount towards future loss
of income which should be granted in view
of the decision of the Apex Court National
Insurance Co. Ltd. Vs. Pranay Sethi and
others, 2017 LawSuit (SC) 1093.

6. It is submitted by learned counsel
for the appellants that the deceased was 33
years of age at the time of accident but the
Tribunal has considered his age to be 40
years and granted multiplier of 15 which is
bad and the multiplier should be 16 in view
of the decision in Sarla Verma and others
Vs. Delhi Transport Corporation and
Another, 2009 LawSuit (SC).

7. It is lastly submitted by learned
counsel for the appellants that the amount
under non pecuniary heads and the interest
awarded by the Tribunal are on the lower
side and are required to be enhanced.

8. Per contra, learned counsel for
respondent-Insurance
Company
has
submitted that the income of the deceased
as considered by the Tribunal is just and
proper as income which was claimed was
not proved by oral and documentary
evidence. It is further submitted that the
age of the deceased has rightly been
considered as the documentary proof filed
in this regard was not certified and the
post-mortem report showed his age to be 40
years, therefore, the same has been
considered
by
the
Tribunal.
Hence,
multiplier of 15 granted by the Tribunal is
just and proper is the submission of learned
counsel for the respondent.

10. Heard learned counsel for the
parties and perused the record. The
Tribunal has considered the income of the
770 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased to be Rs.3,000/- which is nothing
else but perversity shown by the Tribunal
in such a beneficial piece of legislation.
The learned Tribunal has disbelieved the
evidence of P.W.3 and the documentary
evidence at page 41 G which is the order of
deployment of staff dated 18.1.2006. The
deceased was appointed as plant operator
and his monthly salary was Rs.7,500/-.
There cannot be any doubt once documents
are produced and proved by the authority
concerned
who
have
appointed
the
deceased and where he was serving. In the
documentary evidence at page 24 G dated
30.6.2008,
it
has
been
specifically
mentioned that his last drawn salary was
Rs.12,000/- per month and, therefore, we
are unable to accept the submission of Sri
Jaiswal that the Tribunal was right in
returning the finding on income holding
that
claimant
did
not
produce
any
document to show that his income was
Rs.12,000/-.As there was no record of the
increment which were given, the Tribunal
has not accepted the version of P.W.3.
P.W.2 and P.W.1 have corroborated each
other. The Tribunal has fallen in error in
not considering the salary certificate as
well as the evidence led before it, as
narrated herein above. The Tribunal has
misinterpreted the decision of the Apex
Court in A.P.S.R.T.C. and others v. M.
Ramadevi and others, 2008 (1) T.A.C.
714 SC. Principle for assessment of
compensation go to show that reasonably
accepted legal standard have to be adopted.
In our case, the Tribunal has given a go-by
to these principles and, therefore, we
reiterate that just compensation would
mean that the claimants are entitled to be
compensated for loss suffered which would
be the net salary received by the deceased
when he was alive. The decision in
National Insurance Co. Ltd. v. Indira
Srivastava and others, (2008) 2 SCC 763
and in the case of Asha and others v.
United India Insurance Co. Ltd. and
another, (2008) 2 SCC 744 will come to the
aid of the claimants.

11. In view of the above discussion,
we consider the income of the deceased to
be Rs.12,000/- per month.

12. The Tribunal has committed error
in recording the age of the deceased. His
Date of Birth was 1.7.1975 as recorded in
School Leaving Certificate and the date of
accident was 6.5.2008 which shows that on
the date of accident, he was 33 years of age
and, therefore, we are unable to subscribe
to the submission of learned counsel for the
respondent that age of 40 years considered
by the Tribunal is just and proper. The
deceased is considered to be 33 years of
age at the time of accident, hence, 40%
should be added towards future loss of
income of the deceased. Multiplier of 16 is
granted as the deceased was in the age
bracket of 31 to 35. The deceased has left
behind him, four minor children and his
widow. The deceased-father would be
spending 1/4th upon him when he has such
a huge family to maintain. Hence, the
deduction
towards
personal
expenses
would be 1/4th. The Tribunal has erred in
not considering the decision in Sarla
Verma (Supra), and has granted only
Rs.9,500/-
towards
non-pecuniary
damages. We, therefore, grant Rs.70,000/-
under the non pecuniary heads and
Rs.50,000/- each to the minor children who
have lost their father at prime age. Hence,
the total compensation payable to the
appellants is computed herein below:

i. Monthly Income: Rs.12,000/-

ii. Percentage towards future
prospects : 40% namely Rs.4800/-
5 All. Smt. Raj Mala & Ors. Vs. Sri Surendra Kapoor & Anr.
771

iii. Total income : Rs.12,000 +
4800 = Rs.16,800/-

iv. Income after deduction of
1/4th
towards
personal
expenses
:
Rs.12,600/-

v. Annual loss : Rs.12,600 x 12 =
Rs.1,51,200/-

vi. Multiplier applicable : 16

vii.
Loss
of
dependency:
Rs.1,51,200 x 16 = Rs.24,19,200/-

viii. Amount under non pecuniary
heads : Rs.70,000/-

ix. Amount granted to minor
children towards loss of love and affection :
Rs.50,000/- x 4 = 2,00,000/-

x.
Total
compensation
:
Rs.24,19,200 + Rs.70,000 + Rs.2,00,000/-
= 26,89,200/-

13. The rate of interest also cannot be
fathomed in the year 2009 when the repo
rate was 9%. The claimants would be
entitled to 7.5% rate of interest on the
enhanced compensation. The rate of
interest granted by the Tribunal on
originally awarded amount is maintained.

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 award
passed by the Tribunal shall stand
modified to the aforesaid extent. The
respondent-Insurance
Company
shall
deposit the additional amount within a
period of 12 weeks from today with
interest as directed above.

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 is not passed because applicants
/claimants are neither illiterate or rustic
villagers.

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
772 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

We
request
the
learned
Registrar General to forward a copy of
this order to the concerned Judge who
has passed the impugned order where he
is posted and if he has retired from
service then also it should be brought to
his notice so that in future such mistake
regarding assessment of income may not
be committed if he is employed for some
good post.
----------
(2022)05ILR A772
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

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

First Appeal From Order No. 1556 of 2002

Deen Dayal & Ors. ...Appellants
Versus
Nishan Singh & Ors. ...Respondents

Counsel for the Appellants:
Sri T.A. Khan, Sri Rakesh Kumar Mishra
Counsel for the Respondents:
Sri Radhey Shyam, Sri Vinod Singh

A. Civil Law - Motor Accident Act, 1988 -
Beneficial
piece
of
legislation
-
Compensation - Rash and negligent driving
- Driver of the truck dashed with the bicycle
from behind - Perverse finding - Tribunal
takes hyper technical stand in dismissing
the claim petition - Validity challenged -
High Court held that the driver of the truck
was solely negligence - Vimla Devi's case
and Pranay Sethi's case relied upon - High
Court re-computed the compensation. (Para
15 and 17)

B. Civil Law - Motor Accident Act, 1988 -
Claim petition - Non-production of driving
licence - Effect - Recovery right of
Insurance - The factum of licence will have
to be proved by owner/driver of the vehicle,
in question - Held, the amount once
deposited, may be recovered from the
owner by the Insurance Co. as it is proved
that the vehicle was insured on the date of
the accident - Tribunal shall decide the
issue of liability after hearing the owner and
the Insurance Co.. (Para 19 and 20)
Appeal partly allowed (E-1)
List of Cases cited :-
1. UPSRTC Vs Km. Mamta & ors. AIR 2016 SC
948
2. F.A.F.O. No.3425 of 2016; Smt. Minakshi
Srivastava & ors. Vs Dheeraj Pandey & ors.
decided on 11.3.2022
3. Smt. Kaushnuma Begum ors. Vs The New
India Assurance Co. Ltd.; (2001) 2 SCC 9.
4. Vimla Devi & ors. Vs National Insurance Co.
Ltd. & ors. 2019 (133) ALR 768
5. Anita Sharma Vs New India Assurance Co.
Ltd.; (2021) 1 SCC 171
6. Dulcina Fernandes & ors. Vs Joaquim Xavier
Cruz & anr.; AIR 2014 SC 58
7. C.M.A. No. 1482 of 2017; Reliance General
Insurance Co. Ltd. Vs Subbulakshmi & ors.
passed by Madras High Court