# Smt. Sarita Sharma & Anr v. Mohd. Usman & Ors

- **Citation:** (2022) 4 ILRA 625
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-10
- **Case number:** First Appeal From Order No. 1164 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sarita-sharma-anr-v-mohd-usman-ors-48280
- **Pages:** 9

## Headnote

(A) Torts Law - Motor Vehicles Act, 1988 -
Section 173 - compensation enhancement
- contributory negligence - Tribunal not
required to adopt standard of proof as
adopted in criminal trials - required to
decide claim petitions on touchstone of
preponderance of probabilities - not on
the basis of proof beyond reasonable
doubt - should take holistic view of the
matter on the basis of evidence available
on record - future loss of income. (Para -
15)

(B) Torts law - Motor Vehicles Act, 1988 -
principle of "res ipsa loquitur" - "the
things speak for itself" - principle of
contributory negligence - A person who
either
contributes
or
author
of
the
accident
would
be
liable
for
his
contribution to the accident having taken
place.(Para - 17,18,)

Claim petition of claimants - awarded a sum
of
Rs.34,50,000/-
as
compensation
to
claimants - interest rate of 6% per annum -
multiplier 15 - contributory negligence -
50% each of the drivers - involved in the
accident - claimants - enhancement of
compensation - contributory negligence on
part of deceased/driver of the car -
Insurance Company of truck - involvement
of the truck in question in the accident.
(Para - 1,2,12)

HELD:-Tribunal rightly concluded that truck
in question was involved in the accident.
Truck driver major contributor to the
accident. Contributory negligence of truck
driver to the tune of 80% and contributory
negligence of the deceased to the tune of
20% fixed. Total compensation payable to
the claimants appellants, Rs. 86, 56,516/- .
Rate of interest fixed, 7.5% .(Para - 15)

Appeal of claimants partly allowed .

Appeal of Insurance Company dismissed.
(E-7)
List of Cases cited:-

## Text

4 All. Smt. Sarita Sharma & Anr. Vs. Mohd. Usman & Ors.
625
virtually suspected every transaction of
contemporaneous sale, but those three that
have supported the lowest rate. It is not the
parameter by which a claim for compensation
is to be judged that the lowest available rate
amongst the exemplars is to be regarded as
the embodiment of a genuine and truthful
transaction. Rather, the large number of
exemplars
noticed
in
the
connected
references that show rates between Rs.100/-
and Rs.200/- per square yard, would clearly
exclude the abysmally poor value of Rs.29.08
per square yard accepted by the Judge.
Though, it is not before this Court on facts
whether the order of the Reference Court,
that was upheld by their Lordships of the
Supreme Court in Uttar Pradesh Avas
Evam Vikas Parishad v. Ganga Saran
(supra) is precisely related to an identically
situate acquired land, but the decision is a
safe index about the true value of the land,
going by the fact that the land acquired is for
the same housing scheme and all of it lies
close to two public roads. It has been
observed in the judgment of their Lordships
of the Supreme Court in Uttar Pradesh Avas
Evam Vikas Parishad v. Ganga Saran
thus:

"10. It is the case of the respondent
claimants that the land which was required
for the purpose of housing scheme is within
the municipal limits and near to residential
and commercial buildings."

20. The fact that the acquired land has
been acquired for the same housing
scheme, makes the observation of the
Supreme
Court
applicable
for
the
assessment of value of the land here as
well.

21. In the opinion of this Court, after
considering all possible dimensions that are
relevant
to
assess
fair
and
just
compensation, the rate of Rs.99/- per
square yard would be correct assessment,
that has been approved for similar land in
Uttar
Pradesh
Avas
Evam
Vikas
Parishad v. Ganga Saran. This inference
is based on the fact that the land relates to
the same scheme and more or less governed
by similar exemplars, where private sale of
small portions of land has varied between
Rs.100/- to Rs.200/- per square yard.
Moreover, the land here is valuable and
located very close to two highways, a
stadium and other upcoming development
on the date of acquisition. It is not located
very faraway from the village abadi also.

22. In the circumstances, this appeal
succeeds and is allowed with costs. The
impugned judgment and award passed by
the Reference Court is set aside and the
reference is accepted in the terms that for
the acquired land, the appellant shall be
entitled to compensation at the rate of
Rs.99/- per square yard. The statutory
entitlements, such as that to solatium,
additional
compensation
and
interest,
would be worked out accordingly.
----------
(2022)04ILR A625
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2022

BEFORE

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

First Appeal From Order No. 1164 of 2015
&
First Appeal From Order No. 1053 of 2015

Smt. Sarita Sharma & Anr. ...Appellants
Versus
Mohd. Usman & Ors. ...Respondents

Counsel for the Appellants:
626 INDIAN LAW REPORTS ALLAHABAD SERIES
Neeharika Sinha Narayana, Sri Vivek Saran

Counsel for the Respondents:
Sri Nishant Mehrotra

(A) Torts Law - Motor Vehicles Act, 1988 -
Section 173 - compensation enhancement
- contributory negligence - Tribunal not
required to adopt standard of proof as
adopted in criminal trials - required to
decide claim petitions on touchstone of
preponderance of probabilities - not on
the basis of proof beyond reasonable
doubt - should take holistic view of the
matter on the basis of evidence available
on record - future loss of income. (Para -
15)

(B) Torts law - Motor Vehicles Act, 1988 -
principle of "res ipsa loquitur" - "the
things speak for itself" - principle of
contributory negligence - A person who
either
contributes
or
author
of
the
accident
would
be
liable
for
his
contribution to the accident having taken
place.(Para - 17,18,)

Claim petition of claimants - awarded a sum
of
Rs.34,50,000/-
as
compensation
to
claimants - interest rate of 6% per annum -
multiplier 15 - contributory negligence -
50% each of the drivers - involved in the
accident - claimants - enhancement of
compensation - contributory negligence on
part of deceased/driver of the car -
Insurance Company of truck - involvement
of the truck in question in the accident.
(Para - 1,2,12)

HELD:-Tribunal rightly concluded that truck
in question was involved in the accident.
Truck driver major contributor to the
accident. Contributory negligence of truck
driver to the tune of 80% and contributory
negligence of the deceased to the tune of
20% fixed. Total compensation payable to
the claimants appellants, Rs. 86, 56,516/- .
Rate of interest fixed, 7.5% .(Para - 15)

Appeal of claimants partly allowed .

Appeal of Insurance Company dismissed.
(E-7)
List of Cases cited:-

1. Anita Sharma & ors. Vs The New India
Assurance Co. Ltd. & anr., 2020 (0) Supreme
(SC) 704

2. Bajaj Allianz General Insurance Co.Ltd. Vs
Smt. Renu Singh & ors., F.A.F.O. No. 1818 of
2012

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

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

5. Vimal Kanwar & ors. Vs Kishore anr. & ors.,
2013 (3) T.A.C. 6 (SC)

6. Sarla Verma & ors. Vs Delhi Transport Corp.
& Anr., 2009 LawSuit (SC) 613

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

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

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

10. Smt. Sudesna & ors. Vs Hari Singh & anr.,
F.A.F.O. No.23 of 2001

11. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd., F.A.F.O. No.2871 of
2016

(Delivered by Hon'ble Ajai Tyagi, J.)

1. These two appeals have been
preferred against the same judgment and
award dated 07.03.2015 passed by Motor
Accident Claims Tribunal/Special Juede
(E.C.), Act, Ghaziabad (hereinafter referred
to as ''Tribunal') in M.A.C.P. No. 264 of
2012 (Smt. Sarita Sharma and another Vs.
Mohammad Usman and others), whereby
the claim petition of the claimants was
allowed
and
awarded
a
sum
of
Rs.34,50,000/- as compensation to the
4 All. Smt. Sarita Sharma & Anr. Vs. Mohd. Usman & Ors.
627
claimants with interest at the rate of 6% per
annum.
Learned
Tribunal
also
held
contributory negligence to the tune of 50%
each of the drivers, involved in the
accident.

2. The claimants have preferred an
appeal bearing no. F.A.F.O. No. 1164 of
2015 for enhancement of compensation and
setting aside the part of contributory
negligence on the part of the deceased/driver
of the car, whereas, the Insurance Company
of the truck preferred an appeal bearing no.
F.A.F.O. No.1053 of 2015, mainly on the
ground that the truck in question was not
involved in accident and if not so, the
deceased was the major contributor to the
accident.

3. Heard Mr. Vivek Saran, learned
counsel for the appellants-claimants and Mr.
Nishant Mehrotra, learned counsel for the
Insurance Company-respondents. Perused the
record.

4. Brief facts of the case are that claim
petition was filed by claimants on account of
death of Mr. Vimal Kaushik (husband of
appellant-claimant no.1), who died in road
accident no 10.04.2011. It is averred in claim
petition that on 10.04.2011 at about 2:30 AM
(night), deceased Vimal Kaushik was coming
from Merrut to Ghaziabad in his car bearing
no. U.P. 14 BH 1232. Leaving the Merrut
road, when he turned to Hapur road and
crossed the flyover a truck bearing no. H.R
38 G 1780, which was being driven very
rashly and negligently by its driver, came
from opposite direction and hit the car of the
deceased. In this accident, husband of
claimant no.1 was badly injured and died on
the way to the District Hospital Ghaziabad.
Accident was reported in police station
Kavinagar, District Ghaziabad on the same
day by brother of the deceased.
5. Learned counsel for the appellantsclaimants has submitted that learned
Tribunal has held deceased's guilty of 50%
contributory negligence in the accident but
the plea of contributory negligence was
neither pleaded nor proved. Plea of
contributory negligence was not proved by
any of the parties to the claim petition.
Apart from it, there is no evidence on
record, to show or prove that deceased was
contributor to the accident. It is further
submitted that deceased was on correct side
of the road while the truck was on the
wrong side. At the site of the accident,
there is divider on the road. The driver of
the truck came on the same road on which
deceased was coming which was left side
of the road of the car. In fact, the truck
should have gone across the divider but to
make short-cut, the truck came on the
wrong side of the divider and hit the car of
the deceased.

6. In this way, the truck driver was
solely negligent but learned Tribunal
erroneously held the deceased's guilty also
to the tune of 50% for contributory
negligence.
Site
plan,
prepared
by
Investigating Officer also shows that the
truck was being driven on the wrong side
of the divider of the road.

7. Learned counsel for the claimants
has also submitted that learned Tribunal
has given finding that there was night at the
time of accident and head light of the truck
must have been visible to the deceased
from a certain distance, hence, he had an
opportunity to avoid the accident but due to
high speed he could not avoid the accident.
This finding is perverse and based on
surmises and conjectures only.

8. Learned counsel for the claimants
contended that there is no evidence on
628 INDIAN LAW REPORTS ALLAHABAD SERIES
record that deceased was driving the car in
rash and negligent manner and there is no
evidence at all that he was driving at a high
speed yet the learned Tribunal held him
guilty for negligence. Moreover, there is no
basis on which learned Tribunal has fixed
the percentage of negligence of both the
drivers. It is next argued that the
compensation is calculated on the lower
side, deceased was professor in a Degree
College. His pay structure is duly proved
by the accountant of the collage but learned
Tribunal has deducted the component of
House
Rent
Allowance
and
City
Compensatory Allowance from the salary
of the deceased, which was duly payable to
him.

9. Per contra, learned counsel for the
Insurance
Company
has
vehemently
objected the arguments advanced by the
claimants
and
submitted
that
the
involvement of the truck is not proved by
the claimants because the F.I.R. of the
accident was lodged by brother of the
deceased against unknown truck. Truck
number is also not mentioned in F.I.R. and
later on with the collusion of the truck
owner, it was impleaded in the accident for
making unlawful gain to the claimants.

10. Learned counsel for the Insurance
Company has also submitted that there is
no evidence on record that truck driver was
driving rashly and negligently at the time of
accident. The manner by which the
accident took place is only the result of
imagination of the learned Tribunal. If at
all the accident happened, it was on
account of sole negligence on the part of
the deceased or he was the major
contributor. Presence of so called eye
witnesses is completely doubtful on the
spot. In site plan also no truck number is
mentioned by the Investigating Officer.
Moreover, brother of the deceased, who
lodged the F.I.R., was not produced in
evidence which weakens the claimants'
case to the great extent and it was proved
that he had not seen the incident.

11. It is further submitted by learned
counsel for the Insurance Company that as
far as the quantum of compensation is
concerned, it is already fixed on the higher
side, which needs no interference by this
Court.

12. Apart from the issue of quantum
of compensation, there are two main issues
in both appeals; one issue relates to the
involvement of the truck in question in the
accident and second issue relates to
contributory negligence on the part of the
drivers of both the vehicles involved.

13. As far as the involvement of truck
is in question, learned counsel for the
Insurance Company has taken plea before
us that truck in question was not involved
in accident because no truck number is
mentioned in the F.I.R. and during the
investigation also. I.O. did not mention any
truck number in site plan.

14. We are not convinced with the
arguments of Insurance Company in this
regard, because the accident had taken
place in the night of 10.04.2011 at 2:30
AM and the F.I.R. was lodged at 07:05 AM
on the same day i.e. after four and half
hours of the incident. Hence, there was no
opportunity for claimants to plant a wrong
vehicle in the accident, in such a short-time
that too in the dark hours of the night
because it is very important and pertinent to
mention that F.I.R. does not say that
unknown vehicle hit the car but it says that
unknown truck hit the car, hence it is
established in F.I.R. that the vehicle which
4 All. Smt. Sarita Sharma & Anr. Vs. Mohd. Usman & Ors.
629
caused the accident was truck. If truck
number is not mentioned in F.I.R. it does
not weaken the case of claimants because
in the dark night it was not expected by
anybody to note the truck number when it
is admitted case that truck was not caught
on the spot and it ran away from the spot
after causing the accident. It is not disputed
that both the vehicles dashed in each other
from
opposite
direction
because
the
technical inspection report of the car shows
all damages in front side of the car.

15. The Hon'ble Supreme Court in the
case of Anita Sharma and Others Vs. The
New India Assurance Co. Ltd. and
Another, 2020 (0) Supreme (SC) 704 has
held that learned Tribunal is not required to
adopt the standard of proof as is adopted in
criminal trials. Learned Tribunal is required
to decide the claim petitions on touchstone
of preponderance of probabilities and
certainly not on the basis of proof beyond
reasonable doubt. In such matters, learned
Tribunal should take holistic view of the
matter on the basis of evidence available on
record. Learned Tribunal has rightly
concluded that truck in question was
involved in the accident, hence, on this
point we confirm the finding of learned
Tribunal.

16. Now, we come to the controversy
of negligence in the matter. Let us consider
the negligence from the perspective of the
law laid down.

17. The term negligence means failure
to exercise care towards others which a
reasonable and prudent person would in a
circumstance or taking action which such a
reasonable person would not. Negligence
can be both intentional or accidental which
is normally accidental. More particularly, it
connotes reckless driving and the injured
must always prove that the either side is
negligent. If the injury rather death is
caused by something owned or controlled
by the negligent party then he is directly
liable otherwise the principle of "res ipsa
loquitur" meaning thereby "the things
speak for itself" would apply.

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

19. 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
630 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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. 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.

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 (section 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).
4 All. Smt. Sarita Sharma & Anr. Vs. Mohd. Usman & Ors.
631

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
being driven with reasonable care or that
there is equal negligence on the part the
other side."

(Emphasis added )

20. Learned Tribunal has held that in
the said incident, the truck was coming on
wrong side of the divider. At the time of
accident, it was found on the road, which
was correct side of the road, for truck and
the car was on correct side of the divider.
But the learned Tribunal held that although
the truck was on the wrong side of the
divider yet due to the night, head lights of
the truck were on and were visible to the
deceased from a certain distance but due to
high speed of the car, the deceased could
not save the accident. Hence, truck driver
and the deceased were held negligent to the
tune of 50% each.

21. After analyzing the evidence on
record, it is not in dispute that at the time of
accident, truck was on the wrong side of the
divider and the car was on correct side of the
divider. Site plan, which was prepared by I.O.
during the investigation, shows that accident
took place at the point shown by letter "A",
which is absolutely very near of speed
breaker, hence, it was expected from the
deceased also that the speed of the car should
have been very moderate due to presence of
speed breaker, yet the impact of the accident
was so high that it took away the life of the
deceased. But we are not convinced to concur
with the aforementioned finding and degree
of percentage holding the deceased to be
negligent to the tune of 50%.

22. Further it is very important to note
that the truck driver has not stepped in the
witness-box, hence, claimants could not get
opportunity to cross-examine the driver on
the factum of accident, which could elicit the
truth because in this case, unfortunately, the
car driver lost his life and truck driver has not
stepped
in
witness-box,
hence,
only
circumstances remain before the learned
Tribunal and this Court to ascertain the
degree of contributory negligence on the part
of each of the drivers. It is jurisprudence of
law that cross-examination is an acid test of
the truthfulness of the statement made by a
witness but truck driver is not produced in
evidence,
hence,
claimants
lost
the
opportunity to elicit the truth from the best
witness namely driver of the truck.

23. On the basis of discussions made
above, we are of considered opinion that
truck driver even if he was not solely
responsible for the accident, was the major
contributor to the accident. He is the main
author of the accident, yet we cannot shut our
eyes to the fact that deceased was also driving
the car at a high speed at the time of accident
because in spite of there being a speed
breaker very near to the accident site, the
deceased was not able to reduce the impact of
the accident. Had he been driving at a
moderate speed due to approaching the speed
breaker, impact of accident could have been
much lesser. Hence, we set aside the finding
of learned Tribunal with regard to the degree
of percentage of contributory negligence on
the part of the each of the drivers of the
vehicles involved to the tune of 50% each
and
instead
we
fix
the
contributory
negligence of truck driver to the tune of 80%
and contributory negligence of the deceased
to the tune of 20%.

Compensation:-

24. The question of quantum of
compensation has to be reevaluated. The
632 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased was professor in a degree college
in Ghazibad, his salary certificate is
produced on record, which is duly proved
by the concerned employee of the college
by entering in witness-box before the
learned Tribunal. As per the salary
certificate, after deduction of income tax
etc., the deceased was getting Rs.63,734/-
as salary. He was also getting Rs.3,00/- as
city compensatory allowance and Rs.6960/-
as house rent allowance. These allowances
were deducted bythe learned Tribunal from
the salary and assessed the salary for
computation at Rs.54,474/-.

25. In our opinion, city compensatory
allowance and house rent allowance are not
deductable component from the salary
because these are allowance, which were
used for the benefit of family also. Salary
certificate of the deceased is on record, which
shows that gross salary of the deceased was
Rs.78,658/-
deduction
for
provident
fund/G.P.F. of Rs.4924 and income tax of
Rs.10,000/- are shown in salary certificate. In
our opinion deduction towards Provident
Fund/G.P.F. is made from salary, hence, it is
to be included in the salary for the purpose of
computation. Only the income tax of
Rs.10,000/- shall be deducted from gross
salary. Hence, for the purpose of computation
of salary, the income will be assessed Rs.
78,658-10,000 = Rs.68,658 and learned
Tribunal has not awarded any sum towards
future loss of income. The learned counsel
for the appellant has also relied on the
decision in Vimal Kanwar and Others Vs.
Kishore An and Others, 2013 (3) T.A.C. 6
(SC).

26. According to the judgment of the
Apex Court in Sarla Verma and Others Vs.
Delhi Transport Corporation and Another,
2009 LawSuit (SC) 613 and National
Insurance Co. Ltd. Vs. Pranay Sethi and
Others, 2017 LawSuit (SC) 1093, due to
being employed and being of 40 1⁄2 years of
age, 30% shall be added towards future loss
of income to the income of the deceased as
per the aforesaid decisions.

27. As far as the dependency is
concerned, there are two dependents of the
deceased. Keeping in view the number of
dependents, 1/3rd of the income shall be
deducted for personal expenses. Learned
Tribunal has applied multiplier of 15 for
which there is no dispute. Under the non
pecuniary head, claimants-appellants shall
be entitled to get Rs.15,000/- for loss of
estate and Rs.15,000/- for funeral expenses.
Apart from it, claimants shall also be
entitled to get Rs.40,000/- + 40,000/- for
loss of consortium. In this way, claimants
shall get Rs.1,10,000/- under the head of
non pecuniary damages as per the judgment
of Hon'ble Apex Court in Pranay Sethi
(Supra).

28. Hence, the total compensation
payable to the claimants appellants are
computed herein below:

(i) Annual income Rs.68,658 X 12 =
Rs. 8,23,896/- Per annum.

(ii)
Percentage
towards
future
prospects : 30%. Rs.2,47,168/-

(iii) Total income : Rs.8,23,896 +
2,47,168/- = Rs.10,71,064/-

(iv)
Income
after
deduction
of
1/3rd:Rs.10,71,064-3,57,021/-=
Rs.7,14,043

(v) Multiplier applicable : 15

(vi) Loss of dependency : Rs.7,14,043
X 15 = Rs.1,07,10,645/-

(vii) Amount under non pecuniary
head : Rs.1,10,000/-

(viii)
Total
compensation:
Rs.1,07,10,645/-
+
1,10,000/-
=
Rs.
1,08,20,645/-
4 All. The New India Assurance Co. Ltd. Vs. Smt. Shail Kumar & Ors.
633

(ix)Amount
after
20%
deduction
towards
contributory
negligence
:
Rs.1,08,20,645
-
21,64,129/-
=
Rs.
86,56,516/-

29. 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."

30. Learned Tribunal has awarded rate
of interest as 6% per annum but we are fixing
the rate of interest as 7.5% in the light of the
above judgment.

31. In view of the above, the appeal
preferred by the claimants bearing F.A.F.O.
1164 of 2015 is partly allowed. The appeal
preferred by the Insurance company bearing
F.A.F.O. No. 1053 of 2015 is, accordingly,
dismissed. Judgment and award passed by
the learned 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 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.

32. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The Oriental
Insurance Company Ltd., reported in
2007(2) GLH 291 and this High Court in
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 claimants 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) and in First Appeal From Order
No.2871 of 2016 (Tej Kumari Sharma v.
Chola Mandlam M.S. General Insurance Co.
Ltd.) decided on 19.3.2021 while disbursing
the amount.
----------

(2022)04ILR A633
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2022

BEFORE

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

First Appeal From Order No. 1333 of 2000

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Smt. Shail Kumar & Ors. ...Respondents