# Smt. Resha Gupta & Ors v. Sayeed Ahmad & Ors

- **Citation:** (2022) 5 ILRA 649
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-22
- **Case number:** First Appeal From Order No. 146 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-resha-gupta-ors-v-sayeed-ahmad-ors-48568
- **Pages:** 6

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
accident
occurred
on
16.12.2014,
deceased was 32 years of age at the time
of accident and was in self business
having his business -his income was
considered
by
the
Tribunal
to
be
Rs.2,89,850/- per annum, which is just -
deceased was in the age bracket of 31-
35, therefore 40% of the income will have
to be added as future loss of income -
deduction
of
1/3rd
granted
by
the
Tribunal
is
just
and
proper
as the
dependents on deceased were widow,
mother and a six year old minor daughter.
The multiplier of 17 granted by the
Tribunal would be recalculated as 16 -
amount
under
non-pecuniary
heads
should be at least Rs.1,00,000 - deceased
was driving car which is a smaller vehicle
compared to truck - driver of the truck did
not step into the witness box though he is
best witness - charge sheet laid was
against the driver of truck - finding of
Tribunal upheld that the deceased was
650 INDIAN LAW REPORTS ALLAHABAD SERIES
25% negligent and was co-author of
accident - interest should be 7.5% - from
the date of filing of the claim petition till
the amount is deposited (Para 6, 9, 10,
11)

Allowed. (E-5)

List of Cases cited:

## Text

5 All. Smt. Resha Gupta & Ors. Vs. Sayeed Ahmad & Ors.
649
Lucknow, which certifies with a reasoned
opinion that dimmed vision is due to the
employment injury in the left eye. The
treatment too was undergone by the
employee at the E.S.I. Hospital, Lucknow
and is contemporaneous in time to the
injury. There is a further report by an eye
specialist from the Lala Lajpat Rai Medical
College
and
Hospital,
Kanpur
dated
15.07.1996, which opines in clear terms
that loss of vision is one on account of the
injury. Now, from all these documents filed
before the E.S.I. Court, a well reasoned
inference
has
been
drawn
about
a
permanent damage to vision in the left eye,
which is a scheduled injury under the Act.
The said finding is a pure finding of fact,
based
on
consideration
of
relevant
evidence. Nothing has been shown to this
Court by the learned Counsel for the
appellant as to how that finding is beset by
a flagrant and manifest error of law.

23. So far as the question of burden of
proof is concerned, with the employee
adducing so much of evidence from which
the E.S.I. Court has drawn a reasonable
conclusion about the existence of a scheduled
injury, it cannot be said that the burden has
not been discharged by the employee.

24. Insofar as the loss of benefits in
consequence of the injury is concerned, the
injury being a scheduled injury under Serial
No. 32-A of Schedule-I appended to the Act,
the percentage loss of earning capacity is
provided by the Statute itself, not requiring
any further evidence to establish it.

25. Substantial Question of Law No.
(2) is, accordingly, answered in the
negative in the aforesaid terms.

26. In the result, the appeal fails and
stands dismissed.

27. There shall, however, be no order
as to costs.
----------
(2022)05ILR A649
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2022

BEFORE

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

First Appeal From Order No. 146 of 2017

Smt. Resha Gupta & Ors. ...Appellants
Versus
Sayeed Ahmad & Ors. ...Respondents

Counsel for the Appellants:
Sri Vidya Kant Shukla

Counsel for the Respondents:
Sri Pawan Kumar Singh

Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
accident
occurred
on
16.12.2014,
deceased was 32 years of age at the time
of accident and was in self business
having his business -his income was
considered
by
the
Tribunal
to
be
Rs.2,89,850/- per annum, which is just -
deceased was in the age bracket of 31-
35, therefore 40% of the income will have
to be added as future loss of income -
deduction
of
1/3rd
granted
by
the
Tribunal
is
just
and
proper
as the
dependents on deceased were widow,
mother and a six year old minor daughter.
The multiplier of 17 granted by the
Tribunal would be recalculated as 16 -
amount
under
non-pecuniary
heads
should be at least Rs.1,00,000 - deceased
was driving car which is a smaller vehicle
compared to truck - driver of the truck did
not step into the witness box though he is
best witness - charge sheet laid was
against the driver of truck - finding of
Tribunal upheld that the deceased was
650 INDIAN LAW REPORTS ALLAHABAD SERIES
25% negligent and was co-author of
accident - interest should be 7.5% - from
the date of filing of the claim petition till
the amount is deposited (Para 6, 9, 10,
11)

Allowed. (E-5)

List of Cases cited:

1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 0 Supreme (SC) 1050

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

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

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

5. A.V. Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442

6. Smt. Hansagauri 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 Ajai Tyagi, J.)

1. Heard Sri Vidya Kant Shukla,
learned counsel for the appellants, Sri
Pawan Kumar Singh, learned counsel for
the respondent-insurance company and
perused the judgment and order impugned.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 20.10.2016 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge, Kanpur Nagar (hereinafter
referred to as 'Tribunal') in M.A.C.No.61 of
2015 awarding a sum of Rs.24,74,984/-
with interest at the rate of 7% as
compensation As the appeal can be decided
on settled legal position for calculation and
hence record and paper book by consent of
all we dispensed, so that both both
competing parties can be benefited for the
insurance company can save huge interest.

3. The accident and involvement of
vehicle is not in dispute. The respondent
has not challenged the liability imposed on
them. The only issue to be decided by this
Court is, the quantum of compensation
awarded. The age of of the deceased as
decided by Tribunal has attained finality.

4. It is submitted by learned counsel
for the appellant that the deceased was 32
years of age at the time of accident and was
in self business having his business in the
name of s M/s Tulsi Industries . His income
was considered by the Tribunal to be
Rs.2,89,850/- per annum, is also not in
dispute. It is further submitted that the
Tribunal has not granted any amount
towards future loss of income of the
deceased which should be granted in view
of the decision in National Insurance
Company Limited Vs. Pranay Sethi and
Others, 2017 0 Supreme (SC) 1050. It is
further submitted that the amount granted
under non-pecuniary damages are on the
lower side and it should be as per the
decision
in
Pranay
Sethi
(Supra).
Unfortunate aspect is that the Tribunal did
not award any amount under the head of
future loss of income and granted only
Rs.15,000/- for non pecuniary damages and
deducted 25% holding deceased guilty of
contributory negligence.

5. As against this, learned counsel for
the Insurance Company has submitted that
the award does not require any interference
as the date of accident is 16.12.2014 and
the decision of the Tribunal is prior to the
judgment
of
National
Insurance
5 All. Smt. Resha Gupta & Ors. Vs. Sayeed Ahmad & Ors.
651
Company Limited Vs. Pranay Sethi and
Others, 2017 0 Supreme (SC) 1050 and
therefore the Tribunal has not committed
any error in not granting the future loss of
income and the amount for non pecuniary
damages granted are as per U.P. Motor
Vehicles Rules, 1998 (hereinafter referred
to as the U.P. Rules, 1998").

6. Heard the learned counsels for the
parties and considered the factual data. This
Court finds that the accident occurred on
16.12.2014 causing death of Ashutosh
Gupta who was 32 years of age at the time
of accident. The Tribunal has assessed his
income to be Rs.2,89,850/- per year which
according to this Court is just and proper,
looking to his vocation. To which as the
deceased was in the age bracket of 31-35,
40% of the income will have to be added as
future loss of income, in view of the
decision of the Apex Court in Pranay
Sethi (Supra). The deduction of 1/3rd
granted by the Tribunal is just and proper
as the dependents on deceased were widow,
mother and a six year old minor daughter.
The multiplier of 17 granted by the
Tribunal would be recalculated as 16 as
per the judgment of Supreme Court in
Sarla
Verma
Vs.
Delhi
Transport
Corporation, (2009) 6 SCC 121. The
amount under non-pecuniary heads should
be at least Rs.1,00,000/- in view of the
decision in Pranay Sethi (Supra) as every
three years 10% ( rounded to Rs.3,000/-) be
added to Rs.70,000/-. In view of the facts
and circumstances of the case, this Court
feels no interference is called for as far as
deduction
of
personal
expenses
is
concerned.

7. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or is
author of the accident would be liable for
his contribution to the accident having
taken place.

8. 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
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
652 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Clause-6 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 (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.

21. 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).

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
5 All. Smt. Resha Gupta & Ors. Vs. Sayeed Ahmad & Ors.
653
being driven with reasonable care or that
there is equal negligence on the part the
other side."
 emphasis added

9. This Court is in complete
agreement with the finding of facts as far as
negligence is concerned as we concur with
the finding of Tribunal as the deceased was
driving car which is a smaller vehicle
compared to truck. The driver of the truck
did not step into the witness box though he
is best witness. The charge sheet laid was
against the driver of truck. The driver is
suppose to be more cautious and therefore
we uphold the finding of Tribunal that the
deceased be held 25% negligent and was
co-author of accident.

10. The total compensation payable is
recalculated and is computed herein below:

i. Annual Income Rs.2,89,850/-

ii. Percentage towards future
prospects : 40% namely Rs.1,15,940/-

iii. Total income: Rs.2,89,850/- +
Rs.1,15,940/- = Rs.4,05,790/-

iv. Income after deduction of
1/3rd
towards
personal
expenses
:
Rs.2,70,527/-

v. Multiplier applicable : 16

vi.
Loss
of
dependency:
Rs.2,70,527 x 16 = Rs.43,28,432/-

vii. Amount under non pecuniary
heads : Rs.1,00,000/- + Rs.50,000/- to
minor daughter

viii.
Total
compensation
:
Rs.44,78,432/-

ix. Compensation payable to
claimants
after
deductions
of
25%
negligence on the part of the deceased :
Rs.44,78,432/-
-
Rs.11,19,608/-
=
Rs.33,58,824/-.

11. As far as issue of rate of interest is
concerned, the interest 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."

12. In view of the above, the appeal is
partly allowed. Award and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The respondent-Insurance
Company shall deposit the difference of
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.

13. Claimants will give their saving
account number to the Tribunal once the
amounts are deposited. The disbursement
would be directly paid to the bank account
654 INDIAN LAW REPORTS ALLAHABAD SERIES
of the claimants and rest of the amount will
be kept in fixed deposit in the name of
claimants, minor daughter and mother for a
period of three years as more than eight
years have elapsed after the accident have
taken place.

14. 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.

15. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagauri 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.

16.

Fresh
Award
be
drawn
accordingly as per above direction. The
Tribunal shall draw fresh award 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 not blindly
apply the judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.
----------
(2022)05ILR A654
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2022

BEFORE

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

First Appeal From Order No. 235 of 2014

Ashok Kumar ...Appellant
Versus
Smt. Chhinamalu & Ors. ...Respondents

Counsel for the Appellant:
Sri B.P. Verma

Counsel for the Respondents:
Sri Ashok Kumar Srivastava, Sri Amaresh
Sinha, Sri Anubhav Sinha

Civil Law - Motor Vehicles Act,1988 -
Section - 168 - Motor Accident claim -
Injured Claimant - future loss of income -
claimant, a mechanical engineer in Navy,
was injured in road accident and his right
leg was amputated - Tribunal held that as
the appellant is still in service and getting
salary as per rules, he cannot be said to
have suffered loss of income - Held - even
if a person, who is in employment but has
suffered due to accidental injuries, he
would be entitled to claim compensation -