# Smt. Satyawati & Ors v. Vidya Prakash & Ors

- **Citation:** (2021) 9 ILRA 435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-02
- **Case number:** FAFO No. 863 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-satyawati-ors-v-vidya-prakash-ors-47599
- **Pages:** 8

## Headnote

Sri Pankaj Rai

Motor accident claim-issue involvedcompensation awared and negligence
of
deceased
as
Tribunal
deducted
monetary benefits admissible to the
climants-deceased was tortfessor-he
died for no fault of his own-amount of
compensation recalculated.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

9 All. Smt. Satyawati & Ors. Vs. Vidya Prakash & Ors.
435

vi.
Loss
of
dependency:
Rs.3,77,110 x 15 = Rs.56,56,650/-

vii. Amount under non-pecuniary
head : 30,000 + 30,000 + 40,000 =
1,00,000/-

viii.
Total
compensation
:
57,56,650/-

25. It goes without saying that the interest
as per the repo rates in the year 1993 the interest
payable would be 6%. We would go by the
repo rate and not by Schedule and grant 6%
interest as appeals have remained pending for
no fault of the advocates. The rate of interest
could remain same throughout.

26. In view of the above, the appeal of the
DTC is partly allowed on the ground of interest.
The appeal preferred by claimants-Asha Juneja
and others is also partly allowed. The enhanced
amount be deposited within 12 weeks from
today.

27. We segregate the matter of Sri B.D.
Mandhyan i.e. F.A.F.O. No. 1785 of 2018 and
dismisses the same for default with liberty to
file restoration application with advance copies
to the other parties.

28. As far as disbursement is concerned,
office to list the matters after four weeks so that
we can pass order even on the matter of Sri
B.D. Mandhayan.

29. Record and proceedings be sent
back to the Tribunal after two weeks.

30. We are thankful to Sri Shukla and
Sri Jain who have ably assisted the Court.

31. On the next date of hearing when
we would hear for disbursement, the DTC
would place on record the amounts
deposited before the Tribunal till date.
----------
(2021)09ILR A435
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2021

BEFORE

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

FAFO No. 863 of 2021
(FAFO Defective No. 136 of 2018)

Smt. Satyawati & Ors. ...Appellants
Versus
Vidya Prakash & Ors. ...Respondents

Counsel for the Appellants:
Sri Sushil Kumar Pandey

Counsel for the Respondents:
Sri Pankaj Rai

Motor accident claim-issue involvedcompensation awared and negligence
of
deceased
as
Tribunal
deducted
monetary benefits admissible to the
climants-deceased was tortfessor-he
died for no fault of his own-amount of
compensation recalculated.

Appeal partly allowed. (E-9)

List of Cases cited:

1. U.P.S.R.T.C. Vs Km Mamta & ors., AIR 2016
SCC 948

2. Uttar Pradesh Motor Vehicles (Eleventh
Amendment) Rules, 2011

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

4.
Sri
K.R.
Madhusudhan
&
ors.
Vs
Administrative Officer & anr., (2011) 4 SCC 689

5. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 0 Supreme (SC) 1050
436 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Khenyei Vs New India Assurance Co. Ltd. &
ors. (2015) 9 SCC 273

7. Vimal Kanvar & ors. Vs Kishore Dan & ors.,
AIR 2013 SC3830

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

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

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

11. Smt. Hansaguti 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 Subhash Chand, J.)

1. Heard Sri Sushil Kumar Pandey,
learned counsel for the appellant, Sri
Pankaj Rai, 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 13.7.2017 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No.1, Muzaffar Nagar
(hereinafter referred to as 'Tribunal') in
M.A.C.No.370 of 2014 awarding a sum of
Rs.31,99,757/- with interest at the rate of
7% as compensation.

3. The accident is not in dispute. As
per the judgment of Apex Court in
U.P.S.R.T.C.
Vs.
Km
Mamta
and
Others, AIR 2016 SCC 948, all the
grounds raised in the appeal are required to
be adjudicated and that is how, we would
decide issue of negligence of driver and
quantum and would go ahead with the
discussion. The issue of negligence decided
by the Tribunal has been partly decided in
favour of appellants and none of the drivers
or insurance companies have challenged
the award. The respondents have not
challenged the liability imposed on them
jointly and severally. The issues to be
decided are compensation awarded and
whether there was negligence of deceased
in the accident taking place for which the
Tribunal has deducted the monetary benefit
admissible to the claimants.

4. Brief facts as culled out from the
record are that on 27.6.2014 the deceased
along with his friends was traveling from
village Soram to Manali in the car bearing
No. HR-26 BV-7516, at about 2:15 a.m. in
the morning when they reached Gurdeepazi
at Kirtpur Sahab to Bilaspur Road, a Truck
bearing No. HP-23 B-5215 came from the
front and hit the car. As a result of the
negligence of the drivers the accident was
caused whereby , deceased Udaiveer Singh
and his friend-Rajneesh Kumar who were
sitting in the car have died on the spot and
Mukul and Prempal who were also
travelling in the car have sustained
grievous injuries.

5. It is submitted by learned counsel
for the appellants that the deceased was 42
years of age at the time of accident. The
deceased was a government Assistant
Teacher. His income was considered by the
Tribunal to be Rs.31,090/- per month. It is
further submitted that the Tribunal granted
future loss of income of the deceased. The
future loss should be granted as per Uttar
Pradesh
Motor
Vehicles
(Eleventh
Amendment) Rules, 2011 and also as per
decisions of Supreme Court in Sarla
Verma Vs. Delhi Transport Corporation,
(2009) 6 SCC 121 and Sri K.R.
9 All. Smt. Satyawati & Ors. Vs. Vidya Prakash & Ors.
437
Madhusudhan
and
others
Vs.
Administrative Officer and another,
(2011) 4 SCC 689. It is further submitted
that the amount granted under nonpecuniary damages is on the lower side and
same should be computed and granted as
per the decision titled National Insurance
Company Limited Vs. Pranay Sethi and
Others, 2017 0 Supreme (SC) 1050. It is
further
submitted
that
the
deduction
towards personal expenses of the deceased
should be 1/3rd or 1/4th as he was survived
by widow, mother and two sons. It is
submitted by learned counsel that tax is
calculated wrongly and the deduction of
income tax by adding future prospect is
against legal position of law and is bad.

6. It is further submitted that the
deceased was not a tortfessor despite that
Tribunal has deducted compensation which
could not be done as it is settled law that
amount cannot be deducted if the person
sustained injuries or death occurred for no
fault of his.

7. the counsel for the appellants has
submitted that from the factual data, this
Court can cull out that that the accident
occurred on 27.6.2014 causing death of
Udaiveer who was 42 years of age at the
time of accident. The Tribunal has assessed
income to be Rs.31,090/- per month even if
not disturbed by this Court as Rs.580/- is
the deduction which includes Rs.500/- as
tax. It is submitted that the deceased was in
the age bracket of 40-50 and had a
permanent job hence addition of 30% of the
income may not be be disturbed but is
required to be added not only for the
purpose of deduction of income taxbut for
actual actual calculation of compensation
not done by tribunal on erroneous findinds
recorded based on whims and not on
precedents
but
against
settled
legal
principles . and added in view of the
decision of the Apex Court inPranay Sethi
(Supra). The amount under non-pecuniary
heads should be at least Rs.1,00,000/- in
view of the decision in Pranay Sethi
(Supra). The amount rounded is up to
Rs.1,00,000/- as 10% of Rs.70,000/- would
have to be added every three years and,
therefore, we add the same. In view the
facts and circumstances of the case, this
Court feels no interference is called for as
far as deduction of personal expenses is
concerned.

8. The vehicle which is involved in
the vehicular accident were a jeep/car not
driven
by
deceased
Udayveer.
The
appellant has not challenged the decision
on negligence what is challenged is
deduction of compensation payable to heirs
of non- tort-fessor. The jeep was driven by
Rajneesh and not the deceased whose heirs
had claimed compensation for his untimely
death. The law is well settled that claimant
is a non-tort fessor or heirs of deceased.
The deceased was a non tort fessor can
claim damages/ compensation from any of
the tort fessor and for negligence attributed
to the driver of the vehicle in which he was
traveling. The amount cannot be deducted
from awardable compensation.

9. It is submitted by counsel for the
appellant
that
the
deduction
of
compensation for a non tort-fessor is bad
and finding are such which cannot stand
scrutiny of this Court in view of the
judgment of Apex Court in Khenyei Vs.
New India Assurance Company Limited
and Others (2015) 9 SCC 273 for
composite negligence and Vimal Kanvar
and others Vs. Kishore Dan and others,
AIR 2013 SC3830 for both negligence
and compensation and non grant of
future loss as wife had been appointed
438 INDIAN LAW REPORTS ALLAHABAD SERIES
and was working ,and the circulated
judgment of this high 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 also for both the
issues

Our finding on issue of deduction of
compensation on account of negligence :-

10. The Apex Court in Khenyei Vs.
New India Assurance Company Limited
& Others, 2015 LawSuit (SC) 469 has
held as under for accident caused due to
composite negligence :

"4. It is a case of composite
negligence where injuries have been
caused to the claimants by combined
wrongful act of joint tort feasors. In a case
of accident caused by negligence of joint
tort feasors, all the persons who aid or
counsel or direct or join in committal of a
wrongful act, are liable. In such case, the
liability is always joint and several. The
extent of negligence of joint tort feasors in
such a case is immaterial for satisfaction of
the claim of the plaintiff/claimant and need
not be determined by the by the court.
However, in case all the joint tort feasors
are before the court, it may determine the
extent of their liability for the purpose of
adjusting inter-se equities between them at
appropriate stage. The liability of each and
every joint tort feasor vis a vis to
plaintiff/claimant cannot be bifurcated as it
is joint and several liability. In the case of
composite negligence, apportionment of
compensation between tort feasors for
making payment to the plaintiff is not
permissible as the plaintiff/claimant has the
right to recover the entire amount from the
easiest targets/solvent defendant.

14. There is a difference between
contributory and composite negligence. In
the case of contributory negligence, a
person who has himself contributed to the
extent cannot claim compensation for the
injuries sustained by him in the accident to
the extent of his own negligence;whereas in
the case of composite negligence, a person
who has suffered has not contributed to the
accident but the outcome of combination of
negligence of two or more other persons.
This Court in T.O. Anthony v. Karvarnan
& Ors. [2008 (3) SCC 748] has held that in
case of contributory negligence, injured
need
not
establish
the
extent
of
responsibility
of
each
wrong
doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong doer separately. It is only in the case
of contributory negligence that the injured
himself has contributed by his negligence
in the accident. Extent of his negligence is
required to be determined as damages
recoverable by him in respect of the
injuries have to be reduced in proportion to
his contributory negligence. The relevant
portion is extracted hereunder :

"6. 'Composite negligence' refers
to the negligence on the part of two or
more persons. Where a person is injured as
a result of negligence on the part of two or
more wrong doers, it is said that the person
was injured on account of the composite
negligence of those wrong-doers. In such a
case, each wrong doer, is jointly and
severally liable to the injured for payment
of the entire damages and the injured
person has the choice of proceeding
against all or any of them. In such a case,
the injured need not establish the extent of
responsibility
of
each
wrong-doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong-doer separately. On the other hand
where a person suffers injury, partly due to
9 All. Smt. Satyawati & Ors. Vs. Vidya Prakash & Ors.
439
the negligence on the part of another
person or persons, and partly as a result of
his own negligence, then the negligence of
the part of the injured which contributed to
the accident is referred to as his
contributory negligence. Where the injured
is guilty of some negligence, his claim for
damages is not defeated merely by reason
of the negligence on his part but the
damages recoverable by him in respect of
the injuries stands reduced in proportion to
his contributory negligence.

7. Therefore, when two vehicles
are involved in an accident, and one of the
drivers claims compensation from the other
driver alleging negligence, and the other
driver denies negligence or claims that the
injured claimant himself was negligent,
then it becomes necessary to consider
whether the injured claimant was negligent
and if so, whether he was solely or partly
responsible for the accident and the extent
of his responsibility, that is his contributory
negligence. Therefore where the injured is
himself partly liable, the principle of
'composite negligence' will not apply nor
can there be an automatic inference that
the negligence was 50:50 as has been
assumed in this case. The Tribunal ought to
have examined the extent of contributory
negligence of the appellant and thereby
avoided
confusion
between
composite
negligence and contributory negligence.
The High Court has failed to correct the
said error."

18.
This
Court
in
Challa
Bharathamma &Nanjappan (supra) has
dealt with the breach of policy conditions
by the owner when the insurer was asked to
pay the compensation fixed by the tribunal
and the right to recover the same was given
to the insurer in the executing court
concerned if the dispute between the
insurer and the owner was the subjectmatter of determination for the tribunal
and the issue has been decided in favour of
the insured. The same analogy can be
applied to the instant cases as the liability
of the joint tort feasor is joint and several.
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. Thus, 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 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.

What
emerges
from
the
aforesaid discussion is as follows :

(i) In the case of composite
negligence, plaintiff/claimant is entitled to
sue both or any one of the joint tort feasors
and to recover the entire compensation as
liability of joint tort feasors is joint and
several.

(ii) In the case of composite
negligence, apportionment of compensation
between two tort feasors vis a vis the
plaintiff/claimant is not permissible. He
can recover at his option whole damages
from any of them.

(iii) In case all the joint tort
feasors have been impleaded and evidence
is sufficient, it is open to the court/tribunal
to determine inter se extent of composite
negligence
of
the
drivers.
However,
determination of the extent of negligence
between the joint tort feasors is only for the
440 INDIAN LAW REPORTS ALLAHABAD SERIES
purpose of their inter se liability so that
one may recover the sum from the other
after making whole of payment to the
plaintiff/claimant to the extent it has
satisfied the liability of the other. In case
both of them have been impleaded and the
apportionment/ extent of their negligence
has been determined by the court/tribunal,
in main case one joint tort feasor can
recover the amount from the other in the
execution proceedings.

(iv) It would not be appropriate
for the court/tribunal to determine the
extent of composite negligence of the
drivers of two vehicles in the absence of
impleadment of other joint tort feasors. In
such a case, impleaded joint tort feasor
should be left, in case he so desires, to sue
the other joint tort feasor in independent
proceedings after passing of the decree or
award."emphasis added

11. Thus despite the law being very
clear the learned tribunal has fallen in error
in deducting the compensation which could
not be done.

12. The finding on Compensation and
Deduction of income tax while granting
compensation :-

13. From the facts collated, we find
that the Tribunal has committed manifest
error while deciding the compensation to
be awarded to the appellants herein. The
tribunal seems to have not considered the
decision following the supreme court
verdict in its over zeal to show innovative
interpretation for deducting compensation
on various counts unheard of in any
authoritative
pronouncements
(a)
calculation of tax (b) deduction for
negligence of driver in which deceased was
travelling (c) adding future prospect but not
granting as wife is given compassionate
appointment. This court condemns this
perverse
approach
of
the
Tribunal.
Unfortunate part is that the Tribunal in our
view committed an error which can be said
to be error apparent on the face of record
because the income of the deceased at the
time of accident was his actual income. The
authorities as narrated above had already
deducted tax at source and deducting were
also made by employer. The Tribunal
committed error which has resulted in
perversity as it added future prospects
considered
yearly
income;
and
then
deducted income tax on actual income plus
future income multiplied by 12(months).
This could never be done .If at all income
tax had to be deducted, it had to be
deducted on his salary amount not after
adding future prospects as is done by the
Tribunal. In the year 2014, as is evident as
narrated by the learned Tribunal holding
that income tax slab for 2,50,000/- was Nil,
the Tribunal held that as his income was in
the bracket of Rs.2,50,000 to Rs.5,00,000/-,
yearly tax was to be deducted. This finding
requires modification. Income tax if any
has to be deducted on income which was
Rs.500/- deducted by employer. Thus
deduction of Rs.23,500/- per year was bad
and was not even permissible under Income
Tax Act. The deceased would be entitled to
what is known as standard deductions
which would be available to the deceased
employee otherwise government would
have deducted more amount where he was
serving would have deducted more amount
towards tax what is known as tax deducted
at source. This was not done even if we go
by the said standards, it cannot be said that
the amount would be taxable as held by the
Tribunal. One of the reasons being
calculating the slab would therefore have to
be recalculated. Income tax deduction has
to be from the amount which is known as
pay packet of the deceased and not after
9 All. Smt. Satyawati & Ors. Vs. Vidya Prakash & Ors.
441
addition of the future loss of income which
has to be added while calculating the datum
figure. This is an error apparent on the face
of the record which has been rightly
pointed out by the counsel for appellants
and it could not be demonstrated by the
learned counsel for respondent that this
error does not require correction.

14. The second error committed by
learned Tribunal is that though the
deceased is held to be a non tort-fessor
meaning
thereby
that
there
is
no
contribution of negligence, attributable to
him despite that there is a deduction of
compensation payable to the legal heirs
which is against the mandate of the Apex
Court in the decision of Khenyei (supra).
The issue of negligence is concerned, it
stands concluded in favour of appellants as
there is no cross appeal or rather it has not
been pointed out before us that the
deceased was a tort feassor hence the
decisions cited by the learned Advocate for
appellant will apply in full force.

15. The deduction of income tax of
Rs.23,000/- per year is rightly pointed out
to be fallacious by the counsel. The
income.after deductions was Rs.31,090/-
per month roughly out of which he would
be entitled to deduction and that is the
reason why the authority deducted Rs.500/-
as tax at source. The amount under nonpecuniary
heads
should be
at
least
Rs.1,00,000/- in view of the decision in
Pranay
Sethi
(Supra).
The
amount
rounded is up to Rs.1,00,000/- as 10% of
Rs.70,000/- would have to be added every
three years and, therefore, we add the same.
In view of the facts and circumstances of
the
case,
this
Court
feels
that
no
interference is called for as far as deduction
of personal expenses of the deceased is
concerned.
Learned
Tribunal
has
committed an error apparent on the face of
the record.

16. The total compensation is
recalculated and payable to the appellants
is computed herein below:

i. Annual Income of deceased
Rs.3,73,080/- (Rs.31,090 x 12) per annum

ii. Percentage towards future loss
of earning prospects : 30% namely
Rs.1,11,924/-

iii. Total income : Rs.3,73,080 +
Rs.1,11,924 = Rs.4,85,004/-

iv. Income after deduction of
1/3rd
towards
personal
expenses
:
Rs.3,23,336/-.

v. Multiplier applicable : 14

vi.
Loss
of
dependency:
Rs.3,23,336/- x 14 = Rs.45,26,704/-

vii. Amount under non pecuniary
heads : Rs.1,00,000/-(addition of 10%
every three years hence amount rounded up

viii.
Total
compensation
:
Rs.46,26,704/-

17. 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
442 INDIAN LAW REPORTS ALLAHABAD SERIES
no reason to allow the interest in this
matter at any rate higher than that allowed
by High Court."

18. 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 respondentInsurance 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
award and 6% thereafter till the amount is
deposited. The amount already deposited
be deducted from the amount to be
deposited.

19. 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.

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

21.

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 not blindly apply the judgment
of A.V. Padma (supra). The same is to be
applied looking to the facts of each case.

22. A copy of this Judgment be
circulated by the learned Registrar General
to the Tribunals in the State for guidance
after seeking approval of Hon'ble the Chief
Justice. A copy of this judgment be sent to
the learned tribunal whose judgment is
under challenge so that in future he may
not take such erroneous view which would
be unsustainable and against settled legal
provisions of law and remain updated with
precedents ,

23. This Court is thankful to both the
counsels for getting this old matter decided.
----------
(2021)09ILR A442
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2021

BEFORE

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