# Smt. Rajni Singh & Ors. /Claimants v. IFFCO TOKIYO & Ors

- **Citation:** (2022) 9 ILRA 412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-08
- **Case number:** FAFO No. 883 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rajni-singh-ors-claimants-v-iffco-tokiyo-ors-49067
- **Pages:** 9

## Headnote

A. Civil Law - Motor Vehicle Act, 1988Sections 173 & 166-Appeals-rejection of
claim petition-deceased was Assistant
Teacher in primary school and monthly
income of deceased was Rs. 28,528/-per
month-the deceased was survived by five
dependents and the age of deceased was
30 years, By applying the multiplier of 17,
the total loss of dependency is assessed
Rs.65,47,176 and also awarded 2,70000/-
for medical expenses and non-pecuniary
damages-Thus,
the
claimants

held
entitled for total compensation of Rs.
68,17,176/ with interest @ 7.5%-Finding
of the Tribunal set aside-Filing of chargesheet prima facie proof of accident having
taken place-Thus the Tribunal committed
error in rejecting the claim petition.(Para
1 to 42)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

412 INDIAN LAW REPORTS ALLAHABAD SERIES
rights subject to the aforesaid rider and in
view of the judgment of this Court passed
in First Appeal From Order No.3381 of
2003 (Raghuraj Singh Vs. Gyan Singh
and other) decided on 8.4.2022.

25. This Court is thankful to both the
counsels for getting this old matter decided.
----------
(2022) 9 ILRA 412
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2022

BEFORE

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

FAFO No. 883 of 2017

Smt. Rajni Singh & Ors.
 ...Appellants/Claimants
Versus
IFFCO TOKIYO & Ors.
 ...Respondents/Defendants

Counsel for the Appellants:
Sri Bhanu Prakash Verma, Sri Mayank

Counsel for the Respondents:
Sri Pawan Kumar Singh

A. Civil Law - Motor Vehicle Act, 1988Sections 173 & 166-Appeals-rejection of
claim petition-deceased was Assistant
Teacher in primary school and monthly
income of deceased was Rs. 28,528/-per
month-the deceased was survived by five
dependents and the age of deceased was
30 years, By applying the multiplier of 17,
the total loss of dependency is assessed
Rs.65,47,176 and also awarded 2,70000/-
for medical expenses and non-pecuniary
damages-Thus,
the
claimants

held
entitled for total compensation of Rs.
68,17,176/ with interest @ 7.5%-Finding
of the Tribunal set aside-Filing of chargesheet prima facie proof of accident having
taken place-Thus the Tribunal committed
error in rejecting the claim petition.(Para
1 to 42)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. UPSRTC Vs Km Mamta & ors. (2016) AIR SC
948

2. Smt. Meenakshi Srivastava & ors. Vs Dhiraj
Pandey & ors. (2022) Law Suit All. 247

3. Bimla Devi & ors. Vs Himachal Road Trans.
Corp. & ors. (2009) AIR SC 2819

4. Ravi Vs Badrinarayan & ors. (2011) AIR V SC
1226 Para 20

5. Jai Prakash Vs National Ins. Co. Ltd. & ors.
(2010) 2 SCC 607

6. Dulcina Fernandes & ors. Vs Joaquim Xavier
Cruz & ors. (2014) AIR SC 58

7. Mangla Ram Vs O.I.C. Ltd. & ors..

8. Sunita & ors. Vs RSRTC & ors. (2019) AIR SC
994

9. Anita Sharma Vs New India Assur. Co. (2021)
AIR SC 302

10. Vimla Devi & ors. Vs National Ins. Co. Ltd &
ors. (2019) AIR 2 SCC 186

11. Jai Prakash Vs National Ins. Co. Ltd. & ors..
SLP (Civil) Nos. 11801-11804 of 2005

12. Ranjeet Singh Vs The O.I.C. Ltd. & ors.
FAFO No. 1902 of 2010

13. Deen Dayal & ors. Vs Nishan Singh & ors.
FAFO No. 1556 of 2002

14. Prabha Sharma & ors. Vs The New India
Assur. Co. Ltd. & ors. FAFO No. 3602 of
2021

15. Vinita Kesarwani & ors. Vs O.I.C. Ltd. & ors..
FAFO No. 316 of 2012
9 All. Smt. Rajni Singh & Ors. Vs. IFFCO TOKIYO & Ors.
413
16. Brestu Ram Vs Anant Ram & ors. (1990) ACJ
333 (HP)

17. ICICI Lombard General Ins. Co. Ltd. Vs Smt.
Reena Tyagi & ors. FAFO No. 2190 of 2010 (All.)

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

19. Bithika Mazumdar & anr.. Vs Sagar Pal &
ors. (2017) 2 SCC 748 O.I.C. Ltd.Vs Smt.
Ummida Begum & ors. FAFO No. 1999 of 2017

20. Smt. Ragini Devi & ors. FAFO No. 1404 of
1999

21. Anita Sharma Vs New India Assur. Co.L.td.
(2021) 1 SC 171

22.
Reliance
General
Ins.
Co.
Ltd.
Vs
Subbulakshmi & ors. C.M.A. No 1482 of 2017
[C.M.P. No. 7919 of 2017 . (CMA Sr. No. 76893
of 2016]

23. Puspabai Purshottam Udeshi Vs Ranjit
Ginning & Pressing Co. (1977) ACJ 343 SC

24. Vimal Kanwar & ors.. Vs Kishore Dan & ors.
(2013) AIR SC 3830

25. Sarla Verma Vs DTC (2009) 6 SCC 121

26. NICL Vs Pranay Sethi & ors. (2017) SCC
1050

27. Karvan Ansari @ Kurvan Ali Vs
Shyam Kishore Murmu (2010) (0) AIJEL
SC 67995

28. NICL Vs Mannat Johal & ors. (2019) 2
T.A.C. 705 SC

29. A.V. Padma & ors. Vs R. Venugopal (2012) 3
SCC 378

30. Gen. Mgr. KSRTC Trivandrum Vs Susamma
Thomas & ors. (1994) AIR SC 1631

31. O.I.C. Ltd. Vs Chief Commr of Income
Tax(TDS) R/Spl. Civil Appl. No. 4800 of 2021

32. Bajaj Allianz Gen. Ins. Co. Pvt. Ltd. Vs U.O.I.
& ors..
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard learned counsel for the
appellants and learned counsel for the
respondents. Perused the record.

2. This appeal has been preferred by
appellants/claimants against the judgment
and award dated 13.01.2017 passed by
Motor Accident Claims Tribunal, Court
No.3, Mathura (hereinafter referred to as,
'Tribunal') in Motor Accident Claim
Petition No.268 of 2015 (Smt. Rajni Singh
and Others v. Iffco Tokiyo General
Insurance Co. Ltd. and Others) by which
the claim petition of appellants was
rejected by learned tribunal.

3. The brief facts as culled out from
the record are that on 06.03.2015 at about
03:30 p.m. (night), deceased Jitendra Singh
was coming to his Village Virzapur from
Mandi Samiti on foot, when he reached on
NH-2 near Jai Gurudev Ashram within the
jurisdiction of Police Station Highway
Mathura, a EON Car bearing No.UP 85 AF
2955 came from behind and hit him
(deceased). The driver of the car was
driving the vehicle rashly and negligently.
In this accident, the deceased sustained
serious injuries. The deceased was admitted
in Prabha Hospital, Mathura, but due to
serious condition of the deceased, he was
referred to Kamayani Hospital, Agra where
he was admitted from 06.03.2015 to
11.03.2015, when the condition of the
deceased became more serious, he was
admitted to Rainbow Hospital, Agra on
11.03.2015 and for better treatment he was
carried to Delhi, but on the way he died on
23.03.2015, namely, after 20 days of the
accident having taken place.
414 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The Apex Court in UPSRTC Vs.
Km. Mamta and others, reported in AIR
2016 SC 948, has held that all the issues
raised in the memo of appeal are required
to be addressed and decided by the first
appellate court.

5. It is an admitted position of fact
that deceased was a married person and
the claimants are the legal representatives
of the deceased, namely, widow, two
minor sons and one minor daughter, the
mother
of
the
deceased
was
also
dependent on him. The multiplier would
be as per the judgment of Sarla Verma
(infra), which would have to be as per the
age of the deceased.

6. Learned counsel for claimants
submitted that at the time of accident,
deceased
was
Assistant
Teacher
in
Primary School. Hence, the monthly
income of the deceased was Rs.28,528/-.
Learned counsel for claimants also
submitted that for the future loss of
income, 50% of the income should have
been added by the learned tribunal which
has not been added.

7.

Learned
counsel
for
the
appellants has submitted that this case is
covered by the judgment of this Court in
Smt. Meenakshi Srivastava and others
vs. Dhiraj Pandey and others, 2022
LawSuit All.247.

8.

Learned
counsel
for
the
appellants
has
cited
the
following
judgments so as to substantiate his
written arguments:-

(i) Bimla Devi and others v.
Himachal Road Transport Corporation
and others reported inn AIR 2009 Sc
2819;

(ii) Ravi v. Badrinarayan and
others reported in AIR 2011 V SC 1226
paragraph 20 relied upon;

(iii) Jai Prakash v. National
Insurance Company Ltd and others;
reported in 2010 2 SCC 607;

(iv) Dulcina Fernandes and
others v. Joaquim Xavier Cruz and
others reported in AIR 2014 SC 58;

(v)
Mangla
Ram
v.
The
Oriental Insurance Co. Ltd. and others;

(vi)
Sunita
and
others
v.
Rajasthan
State
Road
Transport
Corporation and others reported in AIR
2019 SC 994;

(vii) Anita Sharma the New
India Assurance Co. reported in AIR
2021 SC 302;

(viii) Vimla Devi and others v.
National Insurance Company Limited
and others reported in AIR (2019) 2 SCC
186; and

(ix) Jai Prakash v. National
Insurance Co. Ltd. and Ors, Special
Leave petition (Civil) Nos. 11801-11804
of 2005 decided on 17.12.2009.

9. Learned counsel for Insurance
Company
vehemently
objected
the
submissions made by appellant and further
submitted
that
learned
tribunal
has
considered each and every aspect while
awarding compensation and has awarded
just compensation. Hence, the impugned
judgment does not call for any interference
by this Court.

10. The facts as revealed which are
not disputed are that the vehicle in question
was involved in the accident is accepted by
the owner of the said vehicle. The decision
of this Bench in Ranjeet Singh v. The
Oriental Insurance Co. Ltd. and others.,
First Appeal From Order No.1902 of 2010
decided on 04.03.2022. The judgment of
9 All. Smt. Rajni Singh & Ors. Vs. IFFCO TOKIYO & Ors.
415
this Court in Deen Dayal and others v
Nishan Singh and others, First Appeal
From Order No.1556 of 2002 decided on
23.3.2022 will also enure for the benefit of
the appellant herein. The judgment of
Prabha Sharma and others v. The New
India Assurance Co. Ltd. and others,
First Appeal From Order No.3602 of 2021
dated 24.09.2021 will also enure for the
benefit of the owner. In our case, it is also
accepted that the accident having taken
place.

11. In Vinita Kesarwani and others
v. The Oriental Insurance Co. Ltd and
others, First Appeal From Order No.316 of
2012
decided
on
01.04.2022
which
judgment penned by one of us also will
apply for the benefit of the appellants. In
this backdrop, can it be said that the finding
of the learned tribunal while rejecting the
claim petition that it was not proved that
vehicle
was
involved
and
that
the
appellants did not specify in which hospital
the deceased was first moved for treatment.
The second ground of rejection by the
tribunal is that the First Information Report
was belatedly lodged. The factual scenario
as it goes enumerates that deceased after
meeting with the accident was hospitalized,
the family so busy looking after the injured
so as to see that he survives, he was
advised to be shifted from one hospital to
another
and
the
FIR
was
lodged
immediately on his breathing last at the
place of accident having taken place. The
tribunal has not taken a holistic view of the
beneficial piece of legislation.

12. The FIR cannot be said to be
belated and holding that filing of charge
sheet is not conclusive proof also belies the
decisions of the Apex Court in catena of
judgments. This Court time and again has
held that filing of charge sheet is prima
facie proof of accident having taken place.
The charge sheet was laid and, therefore, it
cannot be said that it was not proved that
the vehicle was not involved in the
accident, this hyper technical finding of
fact cannot be accepted.

13. The burden of proof as far as
motor accident claims cases are concerned,
the civil jurisdiction that the tribunal should
not go by what a known as strict proof of
civil evidence rather filing of an FIR sine
qua non for filing claim petition.

14.

The
eye
witnesses
have
categorically mentioned that the accident
took place. The two decades old judgment
of the Himachal Pradesh reported in Brestu
Ram v. Anant Ram & others, 1990 ACJ
333 (HP) and the decision of this Court in
F.A.F.O. No.2190 of 2010 (All), ICICI
Lombard General Insurance Co. Ltd v.
Smt. Reena Tyagi and ors. and also the
judgment of Mangla Ram (supra) will
apply in full force and the claim petition
could not have been dismissed in the
manner in which the tribunal has dismissed
the same.

15. The evidence of PWs-2 and 3
have been brushed aside, the evidence of
PW-1 and 3 is very important just because
the documentary evidence of Prabhu
Hospital is not filed, it cannot be said that
the accident has not taken place. The
judgment of Jai Prakash (supra) would
apply in full force just because the number
of vehicle was not mentioned by the
informant will not make any difference of
the Apex Court in Jai Prakash (supra) ought
to have been applied by the learned tribunal
and just because some persons did not
inform the police about the number of the
Car
does
not
make
it
a
doubtful
propositions. The learned tribunal in its
416 INDIAN LAW REPORTS ALLAHABAD SERIES
order to dismiss the claim petition as
proceed the entire investigation papers,
namely, post mortem report will goes to
show that injuries were because of the
accidental injuries, there were medical
reports which were filed of several
hospitals.

16. Paragraph 4 of the judgment itself
is self contradictory, once the owner who is
respondent no.2 files his reply can it be said
that it is not proved that the accident
occurred with the involvement of EON Car.

17. This takes us to the next issue
orally mentioned by counsel for the State
that the tribunal has not decided the issue
of negligence. They may be permitted to
raise even the issue of negligence if this
Court comes to the conclusion that the
vehicle was involved in the accident. We
have permitted to same in view of
propositions of Order 43 Rule 1 of the
Code of Civil Procedure.

18. As far as the liability of the
insurance company is concerned, while
deciding issue No.2, the driving licence is
found to be valid, the policy was produced
and it is proved that the vehicle was insured
on the said date of accident.

19. As far as issue No.4 is concerned,
as the tribunal has held that against the
claimants for issue No.1, it did not grant
any compensation. The inquest report and
the post mortem report are substantive
piece of evidence and absence of rebuttal
evidence being brought on record, the
tribunal should not have decided the matter
in the manner it has done.

20. As the issue of negligence is
raised by Insurance company in this appeal
contending that as this is a statutory appeal,
the insurance company can raise objection
even without filing appeal, would have to
be decided, who was negligent whether the
deceased had contributed in the accident
having taken place will have to be
evaluated on the fact and circumstances of
the case.

21. The term 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.

22. 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
9 All. Smt. Rajni Singh & Ors. Vs. IFFCO TOKIYO & Ors.
417
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.

23. 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.

24. 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.

25. These provisions (sec.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.

26. 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).

27. 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
418 INDIAN LAW REPORTS ALLAHABAD SERIES
there is equal negligence on the part the
other side.

28. The next issue which arises is that
the matter has remained pending for long,
the record and proceedings are before this
Court and the matter whether be remanded
to the Tribunal or decided here? The
answer is in the affirmative as per the
judgments of the Apex Court in Bithika
Mazumdar and another Vs. Sagar Pal and
others, (2017) 2 SCC 748 and of this Court
in F.A.F.O. No. 1999 of 2007 (Oriental
Insurance Company Limited vs. Smt.
Ummida Begum and others) and in
F.A.F.O. No. 1404 of 1999 (Smt. Ragini
Devi
and
others
Vs.
United
India
Insurance Company Limited and another)
decided on 17.4.2019 where in it has been
held that if the record is with the appellate
Court, it can decide compensation instead
of relegating the parties to the Tribunal.

29. We are fortified in our view by
the decision of the Apex Court in Anita
Sharma vs. New India Assurance Co.Ltd.,
2021 (1) SCC 171, in which it is held that
standard of proof in claim petition under
Motor Vehicles Act, 1988 cannot be
equated with the standard of proof as it is in
civil or criminal law. There is not
requirement to decide the issue of accident
in claim petitioners that it should be proved
beyond all reasonable, but the standard of
proof is much lesser and it should be
decided on the basis of preponderance of
probabilities keeping in mind the intent of
legislature as this is benevolent piece of
legislation.

30. The Division Bench of Madras
High Court also held in Reliance General
Insurance Co. Ltd. Vs. Subbulakshmi and
Others, passed in C.MA. No. 1482 of 2017
[C.M.P. No. 7919 of 2017. (CMA Sr. No.
76893 of 2016)] has referred the case of
Puspabai Purshottam Udeshi Vs. Ranjit
Ginning and Pressing Co., 1977ACJ 343
(SC), in which it is observed that the
normal rule is that it is for the plaintiff to
prove negligence but as in some cases
considerable hardship is caused to the
plaintiff as the true cause of the accident is
not known to him but is solely within the
knowledge of the defendant who caused it,
the plaintiff can prove the accident but
cannot prove how it happened to establish
negligence on the part of the defendant.
This hardship is sought to be avoided by
applying the principle of res ipsa loquitur.
The general purport of the words res ipsa
loquitur is that the accident 'speaks for
itself or tells its own story. There are cases
in which the accident speaks for itself so
that it is sufficient for the plaintiff to prove
the accident and nothing more. It will then
be for the defendant to establish that the
accident happened due to some other cause
than his own negligence. Where the maxim
is applied the burden is on the defendant to
show either that in fact he was not
negligent or that the accident might more
probably have happened in a manner which
did not connote negligence on his part. For
the application of the principle it must be
shown that the car was under the
management of the defendant and that the
accident is such as in ordinary course of
things does not happen if those who had the
management used proper care.

Compensation :

31. Having heard learned counsels for
the parties and considered the factual data,
the accident occurred on 6.3.2015 causing
death of Jitendra Singh who left behind him
his wife, two sons, one daughter and
mother. The Tribunal has not assessed the
income of the deceased as per facts proved
9 All. Smt. Rajni Singh & Ors. Vs. IFFCO TOKIYO & Ors.
419
required to be granted to Rs.28,528/- per
month. The age of the deceased was 30
years. Hence in the light of the judgment of
Pranay Sethi (supra), 50% would be added
as future loss of income.

32. In the judgment of Vimal
Kanwar and others v. Kishore Dan and
others, AIR 2013 SC 3830, the Hon'ble
Apex Court held that it would be
reasonable to say that a person who is self
employed or is engaged on fixed wages
will also get 50% increase in his total
income for a period of time. Hence, 50% of
the income shall be added for future loss of
income. The appellant was of 30 years of
age, hence multiplier of 17 would be
applicable. There are five dependents on
the deceased, hence 1/4 would be deducted
for personal expenses in the light of the
judgment of Sarla Verma Vs. Delhi
Transport Corporation, (2009) 6 SCC 121.

33. As far as beneficial piece of
legislation is concerned, the strict rules of
Civil Procedure Code and Evidence Act are
not required to adhered to.

34. In this backdrop we evaluate the
income in view of the judgment of
National Insurance Company Limited Vs.
Pranay Sethi and Others, 2017 0 Supreme
(SC) 1050, Sarla Verma Vs. Delhi
Transport Corporation, (2009) 6 SCC 121
and Kurvan Ansari Alias Kurvan Ali v.
Shyam Kishore Murmu, 2010 (0) AIJEL
SC
67995,
the
recalculation
of
compensation would be as follows:

i. Income Rs.28,528/- p.m., it
would be Rs.3,42,336/- p.a.

ii. Percentage towards future
prospects :Rs.1,71,168/-

iii. Total income : Rs.5,13,504/-

iv. Income after deduction of 1/4
: Rs.3,85,128/-

v. Multiplier applicable : 17 (as
the deceased was in the age bracket of 2630 years)

vi.
Loss
of
dependency:
Rs.3,85,128 x 17 = Rs.65,47,176/-

vii.
Medical
expenses
:
Rs.2,00,000/-

viii. Under the head of non
pecuniary damages = Rs.70,000/-

ix. Total compensation (vi+vii
+viii) : Rs.68,17,176/-.

35. 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 7 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."

36. We deem it fit to rely on the
judgment of the Apex Court in the case of
A.V. Padma and others Vs. R. Venugopal,
2012 (3) SCC 378 wherein the Apex Court
has considered the judgment rendered in
General Manager, Kerala State Road
Transport Corporation, Trivandrum Vs.
420 INDIAN LAW REPORTS ALLAHABAD SERIES
Susamma Thomas and others, AIR 1994
SC 1631 for disbursement.

37. 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 (supra), the order of
investment
is
not
passed
because
claimants are neither illiterate nor rustic
villagers.

38. Recently the Gujarat High Court
in case titled the Oriental Insurance Co.
Ltd. v. Chief Commissioner of Income
Tax (TDS), R/Special Civil Application
No.4800 of 2021 decided on 05.04.2022, it
is held that interest awarded by the
tribunal or appellate court under Section
171 of Motor Vehicles Act is not taxable
under the Income Tax Act, 1961

39.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunal 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.

40. In view of the above, both the
appeals are partly allowed. Judgment and
award passed by the Tribunal shall stand
modified to the aforesaid extent. The
respondent-Insurance
Company
shall
deposit the amount of Rs.68,17,176/-
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.

41. Record be transmitted to tribunal.

42. 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 7
years have elapsed since occurrence of
accident, the amount be deposited in the
Saving
Account
of
claimants
in
Nationalized Bank. The amount shall be
credited in the said account with without
investment as the case may be.

43. We are thankful to learned
counsels for the parties for ably assisting
this court in getting this old appeal
disposed of.
----------
(2022) 9 ILRA 420
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.07.2022

BEFORE

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

FAFO No. 1161 of 1993

E.S.I.C. ...Appellant/Opposite Party
Versus
Triyugi Narain Pandey
 ...Respondent/Applicant

Counsel for the Appellant:
Sri Rajesh Tiwari

Counsel for the Respondent:

A. Civil Law - Employees State Insurance
Act,
1948-Section
82
-
Appeal-ESIC
preferred appeal against the judgment of
Employees Insurance Court, Kanpur for