# Smt. Rajawati & Ors v. IFFCO Tokio General Insurance Co. Ltd. New Delhi & Ors

- **Citation:** (2023) 5 ILRA 206
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-06
- **Case number:** First Appeal From Order No. 3389 of 2018
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rajawati-ors-v-iffco-tokio-general-insurance-co-ltd-new-delhi-ors-50191
- **Pages:** 7

## Headnote

Civil Law - Uttar Pradesh Motor Vehicles
Rules, 1998 - Appeal for enhancementDeceased
vegetable
vendor-evidences
submitted -Tribunal misread the evidencedeceased worked in informal sector of the
economy-where
account
books,
etc
not
maintained-absence of such documents cannot
adversely impact determination of incomeincome decided is set aside-future prospects
liable to be calculated-The holdings in Pranay
Sethi cannot dilute the advantages conferred by
the U.P. Rules, 1998-claiman entitled to 50%
enhancement
in
wages
towards
future
prospects.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

206 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

14. In view of the above, the appeal is
partly allowed. Judgment and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The respondent-Insurance
Company shall deposit the amount within a
period of 12 weeks from today with interest as
directed above. The amount already deposited
be deducted from the amount to be deposited.
Record and proceedings be sent back to the
Tribunal forthwith.

15. 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.

16. 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.

17. 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.

18. 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 long period has elapsed, the
amount be deposited in the Saving Account of
claimants in Nationalized Bank without F.D.R.

19. This Court is thankful to both the
counsels for getting this matter decided.
----------

(2023) 5 ILRA 206
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 3389 of 2018

Smt. Rajawati & Ors. ...Appellants
Versus
IFFCO Tokio General Insurance Co. Ltd.
New Delhi & Ors. ...Respondents
5 All. Smt. Rajawati & Ors. Vs. IFFCO Tokio General Insurance Co. Ltd. New Delhi & Ors.
207
Counsel for the Appellants:
Sri Sanjay Singh, Sri Amrendra Nath Rai

Counsel for the Respondents:
Sri Pranjal Mehrtora, Sri Ashish Gupta

Civil Law - Uttar Pradesh Motor Vehicles
Rules, 1998 - Appeal for enhancementDeceased
vegetable
vendor-evidences
submitted -Tribunal misread the evidencedeceased worked in informal sector of the
economy-where
account
books,
etc
not
maintained-absence of such documents cannot
adversely impact determination of incomeincome decided is set aside-future prospects
liable to be calculated-The holdings in Pranay
Sethi cannot dilute the advantages conferred by
the U.P. Rules, 1998-claiman entitled to 50%
enhancement
in
wages
towards
future
prospects.

Appeal partly allowed. (E-9)

List of Cases cited:
1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 (16) SCC 680

2. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors., 2021 SCC OnLine SC 822

3. Sarla Verma (Smt.) & ors. Vs Delhi Transport
Company & anr., 2009 (6) SCC 121

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Shri Sanjay Singh, learned
counsel for the appellants and Shri Ashish
Gupta, learned counsel holding brief of
Shri Pranjal Mehrotra, learned counsel for
the respondent-insurance company.

2. The appeal arises out of a judgment
and award dated 02.05.2018 rendered by
the
Motor
Accident
Claims
Tribunal/District
Judge,
Bareilly,
in
M.A.C.P. No.452 of 2015 (Smt. Rajwati
and others v. IFFCO Tokio General
Insurance Co.Ltd. and others) partly
allowing the claim of the claimants. This
appeal
has
been
filed
by
the
claimants/appellants for enhancement of
the amount awarded by the tribunal in the
impugned judgment.

3. The brief facts of the claimantsappellants before the learned tribunal was
that the deceased died of injuries sustained
in an accident on 22.08.2015 which was
caused entirely by rash and negligent
driving of the driver of the offending
vehicle
of
Tata-407
model
bearing
registration
No.UK-08-CA/3528.
The
deceased was driving a motorcycle when
the offending vehicle collided with him.
The offending vehicle was insured by the
respondent-insurance
company.
The
claimants are dependant on the deceased.
The deceased worked as a vegetable
vendor.

I. Compensation awarded by the
learned tribunal:

4. The
learned
tribunal
in
the
impugned
judgment
dated
03.04.2017
awarded compensation which is depicted in
a tabulated form hereunder:

Sr
. No.
No.
Heads
Amount (in rupees)
1
Monthly Income (A)
3600/-
2
Annual Income (B)
(A x 12 = B)
3600
x
12
=43,200/-
3
Future prospects (C)
40%
of
43,200/-
=17,280/-
4
Annual
Income
+
Future
Prospects
(B + C = D)
43,200
+
17,280/-
=60,480/-
5
Deduction
towards
Personal Expenses (E)
1⁄4
of
60,480/-
= 15,120/-
6
Annual
Loss
of
Dependency (D-E =
F)
60,480-15,120/-
=45,360/-
6
Multiplier (G)
17
208 INDIAN LAW REPORTS ALLAHABAD SERIES
7
Total
loss
of
dependency
(F
x
G
=
H)

45,360
x
17
=7,71,120/-
8
Compensation (H)
7,71,120/-
9
Conventional Heads:
(I)
(a) Loss of consortium
(b)
Loss
of
love,
affection
(c) Loss of Estate
(d) Funeral expenses
70,000/-
10
Total
compensation
(H+I
=
J)

7,71,120/- + 70,000/-
= 8,41,120/-
11
Interest
7.00%

5. Shri Sanjay Singh, learned counsel
for the appellants contends that the tribunal
erred in law by incorrectly determining the
income of the deceased and also awarding
the amounts under various heads which
were at variance with settled authorities in
point.

6. Shri Ashish Gupta, learned counsel
holding brief of Shri Pranjal Mehrotra,
learned
counsel
for
the
respondentinsurance company contends that the
compensation paid was just lawful, valid
and requires no alteration.

7. After advancing their arguments,
learned counsel for both the parties agree
that only the following questions fall for
consideration in this appeal:-

A. Whether the learned Tribunal had
correctly determined the income of the
deceased in the record?

B. Whether learned Tribunal correctly
computed the compensation under these
various heads :-

(i) conventional heads,

(ii) future prospects,

(iii) multiplier, and

(iv) interest while computing the
compensation?

7.(A) Income of the deceased:

8.
The
claimants-appellants
specifically pleaded that the deceased was a
vegetable vendor who earned Rs.600/-to
Rs.700/- per day. The appellants-claimants
also introduced one witness to establish the
income of the deceased. PW1-Rajwati
before the learned tribunal testified that her
husband worked as a vegetable vendor. The
entire family was dependant on his income.
Under cross examination the witness stated
that the deceased did not maintain any
documentation of his business like receipt
of sale vouchers, registration with the
Nagar Nigam, etc. The credit of PW1Rajwati remained intact under crossexamination.
Her
testimony
clearly
establishes that the deceased was a
vegetable vendor and his family was
supported by his income. Learned tribunal
which had the benefit of observing the
demeanor also did not reject the testimony
insofar as it relates to the deceased engaged
in the business of selling vegetables.

9. Learned tribunal clearly misread the
evidence and determined the income by
relying on the admission of P.W.1 that the
business
of
the
deceased
was
not
documented.

10. The deceased worked in the
informal sector of the economy as a
vegetable vendor. The activities in this
sector are often undocumented. Running
account books, or receipt of sale vouchers,
registration with Nagar Nigam and the like
are not maintained by vegetable vendors.
Absence
of
such
documents
cannot
adversely impact determination of income
in such cases. Vegetable vendors require a
5 All. Smt. Rajawati & Ors. Vs. IFFCO Tokio General Insurance Co. Ltd. New Delhi & Ors.
209
certain skill in doing business which
include
identifying
vegetables,
understanding the market, and giving the
right sales pitch. These skills are mostly
acquired on the job. The income of the
deceased would be examined the light of
the skills required to earn a livelihood as a
vegetable
vendor.
The
aforesaid
considerations were not factored in by the
learned tribunal while determining the
income of the deceased. The income
determined by the learned tribunal is
accordingly set aside.

11. The minimum wages as notified by
the State Government factor in all relevant
considerations and is a reliable guide to
take the enquiry forward. Considering the
perennial need of vegetables, it can be
concluded that the deceased had a regular
source of employment. The minimum wage
as notified by the State Government at the
relevant time for skilled labourers is
Rs.8,298/-.

12.
In
the
wake
of
preceding
discussion, the total monthly income of the
deceased is fixed at Rs.8,500/- per month.

7.(B)(i) Calculation of Conventional
Heads:

13. The amount determined under
conventional heads in the impugned award
is at variance with National Insurance
Company Ltd. v. Pranay Sethi and
others1. The conventional heads were
fixed in Pranay Sethi (supra) by holding
as under:

"54. ......The conventional and
traditional heads, needless to say, cannot be
determined on percentage basis because
that would not be an acceptable criterion.
Unlike determination of income, the said
heads
have
to
be
quantified.
Any
quantification must have a reasonable
foundation. There can be no dispute over
the fact that price index, fall in bank
interest, escalation of rates in many a field
have to be noticed. The court cannot remain
oblivious to the same. There has been a
thumb rule in this aspect. Otherwise, there
will be extreme difficulty in determination
of the same and unless the thumb rule is
applied, there will be immense variation
lacking any kind of consistency as a
consequence of which, the orders passed by
the tribunals and courts are likely to be
unguided. Therefore, we think it seemly to
fix reasonable sums. It seems to us that
reasonable figures on conventional heads,
namely, loss of estate, loss of consortium
and funeral expenses should be Rs.
15,000/-, Rs. 40,000/- funeral expenses
should be Rs. 15,000/-, Rs. 40,000/- And
Rs. 15,000/- respectively."

14. The figure under conventional
heads determined in Pranay Sethi (supra)
shall be applicable to the facts of this case.
The award is modified accordingly.

7.(B)(ii) Future Prospects:

15. The future prospects are liable to
be calculated in accordance with the Uttar
Pradesh Motor Vehicles Rules, 19982. Rule
220A-3(i) of the Rules is relevant and is
reproduced hereunder:

"(3) The future prospects of a
deceased, shall be added in the actual
salary or minimum wages of the deceased
as under--

(i) Below 40 years of age : 50%
of the salary."

16. The UP Rules, 1998 came up for
consideration before the Supreme Court in
210 INDIAN LAW REPORTS ALLAHABAD SERIES
New India Assurance Co. Ltd. vs. Urmila
Shukla and others3. In Urmila Shukla
(supra) upon consideration of various
judgements
including
Pranay
Sethi
(supra) held:

"10. The discussion on the point
in Pranay Sethi was from the standpoint of
arriving at "just compensation" in terms of
Section 168 of the Motor Vehicles Act,
1988.

11. If an indicia is made available
in the form of a statutory instrument which
affords a favourable treatment, the decision
in Pranay Sethi cannot be taken to have
limited the operation of such statutory
provision specially when the validity of the
Rules was not put under any challenge. The
prescription of 15% in cases where the
deceased was in the age bracket of 50-60
years as stated in Pranay Sethi cannot be
taken as maxima. In the absence of any
governing
principle
available
in
the
statutory regime, it was only in the form of
an indication. If a statutory instrument has
devised a formula which affords better or
greater benefit, such statutory instrument
must be allowed to operate unless the
statutory instrument is otherwise found to
be invalid." (emphasis supplied)

17. The Rules of the Uttar Pradesh
Motor Vehicles Rules, 1998 were not under
consideration before the Supreme Court in
Pranay Sethi (supra) or Sarla Verma
(Smt.) and others v. Delhi Transport
Company and another4. Future prospects
in Pranay Sethi (supra) were determined
without noticing the U.P. Rules,1998. This
fact was adverted to in Urmila Shukla
(supra):

"8. It is submitted by Mr. Rao
that the judgment in Pranay Sethi does
not show that the attention of the Court
was invited to the specific rules such as
Rule 3(iii) which contemplates addition
of 20% of the salary as against 15%
which was stated as a measure in Pranay
Sethi. In his submission, since the
statutory instrument has been put in place
which
affords
more
advantageous
treatment, the decision in Pranay Sethi
ought not to be considered to limit the
application of such statutory Rule."

18. The U.P. Rules,1998 are statutory
in nature and their operation is not
stymied by Pranay Sethi (supra). The U.
P. Rules, 1998 have the force of law and
shall apply with full force in appropriate
cases. The U.P. Rules, 1998 are more
beneficial for the claimants than the
provisions made in Pranay Sethi (supra)
for them. The holdings in Pranay Sethi
(supra) can not dilute the advantages
conferred by U.P. Rules, 1998 upon the
eligible beneficiaries.

19. This Court finds that the
claimants-appellants are entitled to 50%
enhancement in wages towards future
prospects, consistent with the UP Rules,
1998. The necessary changes in the award
shall be accordingly made.

20. In this wake, this Court finds for
the appellants-claimants on the issue of
grant of future prospects.

7.(B)(iii) Multiplier:

21. The age of the deceased was 28
years at the time of death. Multiplier of 17
has been correctly applied by the learned
Tribunal and is in line with Pranay Sethi
(supra) and Sarla Verma (supra).

7.(iv) Interest:
5 All. Smt. Rajawati & Ors. Vs. IFFCO Tokio General Insurance Co. Ltd. New Delhi & Ors.
211

22. Interest of 7.50% and the manner
of payment does not call for interference.
However, the claimants-appellants shall not
be entitled to interest on the enhanced
income determined in this judgement.

II. Determination of Compensation
to
which
claimants-respondents
are
entitled:

23.
In
the
wake
of
preceding
discussion, the amount of compensation
awarded to the claimants-appellants is
tabulated below:

i. Date of Accident

-
22.08.2015

ii. Date of death

 -
22.08.2015

iii. Name of the deceased

-
Vijay Raj

iv. Age of the deceased

-28
years

v. Occupation of the deceased

- Vegetable Vendor

vi. Income of the deceased
-
Rs.8,500 per month.

vii. Name, Age and Relationship of
claimants with the deceased

Sr.
No.
Name
Age
Relation
1
Smt. Raywati
28
Wife
2
Km. Rsohni
4
Daughter
3
Vishal
2
Son
4
Smt. Nemwati
58
Mother
5
Khyalram
60
Father

viii. Computation of Compensation

Sr.
No.
Heads
Amount (in Rupees)
1
Monthly Income (A) 8500
2
Annual Income (B) 8500
x
12
(A x 12 = B)
= 1,02,000/-
3
Future Prospects (C) 50%
of
1,02,000
=51,000/-
4
Annual
Income
+
Future Prospects (B
+ C = D)
1,02,000 + 51,000/-
= 1,53,000/-
5
Deduction
towards
Personal
Expenses
(E)
1⁄4
of
1,53,200/-
=38,300/-
6
Annual
Loss
of
Dependency
(D-E=F)
1,53,000-38,300
=1,14,700/-
7
Multiplier (G)
17
8
Total
Loss
of
Dependency
(FxG = H)
17 x 1,14,750
= 19,49,900/-
9
Compensation (H)
19,49,900/-
10
Conventional Heads:
(I)
(a)
Loss
of
consortium
(b) Loss of Love,
Affection
(c) Loss of Estate
(d) Funeral Expenses
70,000/-
11
Total Compensation
(H+I = J)
19,49,900/- + 70,000/-
= 20,19,900/-
12
Interest
7.50%

III. Conclusion and Directions:

24. The amount of compensation to
which the claimants-appellants have thus
been found entitled shall be deposited by
the corporation within three months before
the learned tribunal. Thereafter the learned
tribunal shall release the amount to the
claimants without delay. The amount
already disbursed to the claimants (if any)
shall be duly adjusted.

25.
The
amount
of
Rs.25,000/-
deposited by the appellants-claimants while
instituting the appeal shall be forthwith
remitted to the learned tribunal. The
amount shall be paid to the claimantsappellants
as
part
of
the
awarded
compensation amount.
212 INDIAN LAW REPORTS ALLAHABAD SERIES

26. The instant appeal is partly
allowed as indicated above.
----------
(2023) 5 ILRA 212
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2023

BEFORE

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

First Appeal From Order No. 4116 of 2017
&
other connected cases

M/s Oriental Insurance Co. Ltd., Hari
Nagar, Meerut ...Appellant
Versus
Ram Kishan Agarwal & Ors.
 ...Respondents

Counsel for the Appellant:
Sri S.K. Jaiswal, Sri N.K. Srivastava

Counsel for the Respondents:
Sri K.S. Amist

A. Civil Law - Motor Vehicles Act, 1988Section 173-composite negligence-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-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 of the inter se
liability for want of evidence or other joint
tort feasor 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-Apex
Court latest decision in Khenyei one
further aspect that 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 minimized if he had taken
care- the ground raised even on the
compensation being awarded is on higher
side cannot succeed as the compensation
awarded is without granting any future
loss of income, the amount awarded to
the heirs of driver of bus is meager, there
shall be no recoveries from the claimants-
Hence, all these appeals fail- (Para 1 to
24)

The appeals are dismissed. (E-6)

List of Cases cited:

1. Bajaj Allianz Gen. Ins. Co. Ltd. Vs Smt. Renu
Singh & ors.. FAFO No. 1818 of 2012

2. Rylands Vs Fletcher (1868) 3 HL (LR) 330

3. Jacob Mathew Vs St. of Punj. (2005) 0 ACJ
(SC) 1840

4. Khenyei Vs New India Assr. Co. Ltd. & ors.
(2015) LawSuit (SC) 469

5. T.O. Anthony Vs Karvarnan & ors. (2008) 3
SCC 748

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

1. This group of matters are preferred
by Oriental Insurance Co. Ltd and The New
India Assurance Company Ltd respondents
in the claim petitions which arose out of the
same accident. The Insurance Companies
have requested for settling the liability on
the other insurance company as far as
negligence of the driver driving the vehicle
involved in accident.

2. The Insurance Companies have
raised the issue of driving licence but it is
held by tribunal that have not proved the