# Smt. Shabnam Begum & Ors v. Surendra Kumar & Ors

- **Citation:** (2022) 6 ILRA 886
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-27
- **Case number:** Court of Gujarat in R/Special Civil Application No.4800 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shabnam-begum-ors-v-surendra-kumar-ors-48669
- **Pages:** 6

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 173 - Motor Accident
claim - Income - deceased 34 years of
age & was a L.I.C. Agent - Tribunal
considered income of deceased to be
Rs. 3000 per month disbelieving the
documentary evidence and considered
income of
labourer
-
Held
-
not
believing Form 16-A of Income Tax
Return is absolutely perverse finding -
documentary
evidence
on
record
shows that the deceased was getting
commission of about Rs.85,000/- per
annum
from
L.I.C.
-
claimants
produced documents to show that the
deceased was having his own business
- decision of Tribunal perverse for
discarding all evidence - documentary
evidence
even
if
not
proved,
the
Tribunal's should take a holistic view -
Tribunal u/s 169 of Act could have
taken upon itself to see that the
documents are proved (Para 5, 6)

Allowed. (E-5)

List of Cases cited:

## Text

886 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

18. No other grounds are urged orally
when the matter was heard.

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. Hansaguri P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, total
amount of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimant to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
while disbursing the amount. The said
decision has also been reiterated by High
Court of Gujarat in R/Special Civil
Application
No.4800
of
2021
(The
Oriental Insurance Co. Ltd. v. Chief
Commissioner of Income Tax (TDS)
decided on 5.4.2022.

21. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondent
shall deposit the amount with interest at the
rate of 7.5% from the date of filing of the
claim petition till the amount is deposited
within a period of 12 weeks from today.
The amount already deposited be deducted
from the amount to be deposited.

22.

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

23. This Court is thankful to both the
counsels to see that this very old matter is
disposed of.
----------
(2022)06ILR A886
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2022

BEFORE

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

First Appeal From Order No. 1751 of 2017

Smt. Shabnam Begum & Ors. ...Appellants
Versus
Surendra Kumar & Ors. ...Respondents
6 All. Smt. Shabnam Begum & Ors. Vs. Surendra Kumar & Ors.
887
Counsel for the Appellants:
Sri Pramod Kumar, Sri Ram Ashish Pandey

Counsel for the Respondents:
Ms. Archana Singh, Sri Mukesh Kumar, Sri
Shresth Pratap Singh

Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 173 - Motor Accident
claim - Income - deceased 34 years of
age & was a L.I.C. Agent - Tribunal
considered income of deceased to be
Rs. 3000 per month disbelieving the
documentary evidence and considered
income of
labourer
-
Held
-
not
believing Form 16-A of Income Tax
Return is absolutely perverse finding -
documentary
evidence
on
record
shows that the deceased was getting
commission of about Rs.85,000/- per
annum
from
L.I.C.
-
claimants
produced documents to show that the
deceased was having his own business
- decision of Tribunal perverse for
discarding all evidence - documentary
evidence
even
if
not
proved,
the
Tribunal's should take a holistic view -
Tribunal u/s 169 of Act could have
taken upon itself to see that the
documents are proved (Para 5, 6)

Allowed. (E-5)

List of Cases cited:

1. Laxmi Devi Vs Mohd. Tavar 2008 (2) TAC
SC

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

3. General Manager Kerela State Road Transport
Corp. Trivandrum Vs Susamma Thomas & ors.
1994 (2) SCC 176

4. U.P.S.R.T.C. Vs Trilok Chand, 1996 T.A.C. (2)
176

5. Gobald Motor Service Ltd. & Vs R. M. K.
Veluswami & ors. AIR 1962 SC 1

6. R.K. Malik Vs Kiran Pal, 2009 14 SCC 1
7. Smt. Meena Pawaia & ors.Vs Ashraf Ali & ors.
2001 0 Supreme (SC) 694

8. Akhilesh Kumar Anand Vs Rahul Mishra & anr.
F.A.F.O. No. 2019 of 2021 decided on 18.4.2022

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

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

11. Bajaj Allianz General Insurance Company
Pvt. Ltd. Vs U.O.I. & ors. vide order dated
27.1.2022

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

1. Heard Sri Ram Ashish Pandey,
learned counsel for the appellants, Sri
Shresth Pratap Singh, learend counsel
appearing along with Ms. Archana 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 27.02.2017 and decree dated
03.03.2017
passed
by
the
learned
Additional District Judge, Court No.
8/Motor Accident Claim Tribunal, Etawah
(hereinafter referred to as 'Tribunal') in
M.A.C.P. No.765 of 2015 (Smt. Shabnam
Begum And 5 Others Vs. Surendra Kumar
And 2 Others), under Section 140/166 of
the Motor Vehicle Act, 1988 (referred as
Act), awarding a sum of Rs.4,15,000/- with
7% interest per annum to the claimants.

3. It is not in dispute that the deceased
was 34 years of age. He was a L.I.C.
Agent. The Tribunal has considered income
of deceased to be Rs.3,000/- per month by
disbelieving the documentary evidence
produced by the claimants and considered
888 INDIAN LAW REPORTS ALLAHABAD SERIES
income of labourer. It is submitted by Sri
Ram Ashish Pandey, learned counsel for
the appellants that the income of the
deceased should have been considered to
be Rs.30,000/- per month; as the deceased
was below 40 years, 40% of the income
should be added as future loss of income. It
is further submitted that the deceased was
survived by his widow and three minor
children, 1/4th amouny towards personal
expenses of the deceased should be
deducted. It is also submitted that the
interest should be granted at the rate of
7.5% and Rs.70,000/- should be granted
under the head of non-pecuniary damages.

4. It is submitted that reliance by
Tribunal on the judgment of Laxmi Devi Vs.
Mohd. Tavar 2008 (2) TAC SC has been
applied by the Tribunal for considering the
income is bad. It is submitted that the
judgment in the case of Sarla Verma Vs.
Delhi Transport Corporation, (2009) 6 SCC
121 has been in vogue when the Tribunal
decided this matter on 27.02.2017. The Uttar
Pradesh
Motor
Vehicle
Rules
1998
(Amended in 2011) was also in vogue despite
that the Tribunal has not considered and has
not granted any amount under the head of
future loss of income. It is submitted that the
Tribunal has not followed the judgment in the
case of General Manager Kerla State Road
Transport Corporation Trivandrum Vs.
Susamma Thomas and others 1994 (2)
SCC 176 followed by U.P.S.R.T.C. Vs.
Trilok Chand, 1996 T.A.C. (2) 176 which
has followed the judgment in the case of
Gobald Motor Service Ltd. & Vs. R. M. K.
Veluswami & Others AIR 1962 SC 1,
hence, all the three judgments enjoined duty
on the Tribunal to decide what is known as
just compensation.

5. The learned Tribunal very
unfortunately has not even considered that
even in the year of accident the minimum
wages admissible for a house wife in the
year 2012 were Rs.5,000/- per month. For a
child of 12 years in 2012 also the Apex
Court has granted a sum of Rs.5/- lacs. In
the case of R.K. Malik Vs. Kiran Pal,
2009 14 SCC 1. The learned Tribunal in its
over zeal to grant less amount has rendered
the award absolutely venerable as the
documentary evidence even if was not
proved, the Tribunal's in the state should
take a holistic view instead of relying upon
the judgment of Laxmi Devi (supra)
which is of the year 2008. The Tribunal
very strangely relies on the xerox copies of
school certificate for fixing age but refuses
to rely on the Income Tax Return. We do
not find any overwriting as mentioned by
the Tribunal in its award, it was nobody's
case that the documents produced were not
genuine. Such a reasoning of the Tribunal
shows that either the Tribunal was stayed
away with other factor which are not
germane to such a litigation. The Tribunal
even lost site of the fact that the deceased
survived
for
some
hours
and
was
hospitalized. The deceased was a holder of
Pan Card. The L.I.C. Agency Code was
also there. He was a Income Tax payer and
not believing Form 16-A of Income Tax
Return is absolutely perverse finding. We
do not find any overwriting in the
document 16-A filed by the claimants
along with the document of Divisional
Office Agra, L.I.C. can this all said to be
not showing that the deceased was a person
who was earning and was a respectable tax
payer of the country. The bills given by
Manoj Kumar Gupta and the receipts by
agricultural Mandi Samiti also belies the
finding of the Tribunal. The identity card
for Commission Agent also and registration
certificate given by K.B.C.L. India Ltd.
will not permit us to concur with the
learned Tribunal, rather, we deprecate this
6 All. Smt. Shabnam Begum & Ors. Vs. Surendra Kumar & Ors.
889
practice and as there was also further
document of Sai Prasad's property in the
name of the deceased way back in the year
which comprises of bunch of documents
which goes to show that he was running a
flour mill, it is also orally opined by his
wife (widow). We do not find any
overwriting in the Income Tax Return
produced as document 26(G) and though,
the document is not admitted by the
Insurance Company. The document shows
that he was not a labourer but one of tax
payer of this country. The Income Tax
Department
has
also
given
the
acknowledgement of tax deduction at
source. The Tribunal under Section 169 of
Act could have taken upon itself to see that
the documents are proved. The Insurance
Company could have also examine as an
expert just to brush aside the the same
cannot be accepted. The claimants have
tried to summon the witnesses but the
Tribunal in its over zeal has not considered
the same. The written arguments of
Insurance Company also did not stayed that
the said documents produced are fake. The
only contention is that they have not been
proved. The finding of fact that the
deceased was getting Rs.5,000/- as rent is
also held against the claimants.

6. The documentary evidence is there
on record which shows that the deceased
was
getting
commission
of
about
Rs.85,000/- per annum from L.I.C. which is
also on record which could not be disputed
by Ms. Archna Singh, learned counsel for
the Insurance Company. The claimants
have produced documents to show that the
deceased was having his own business, bill
are there which are no doubt, xerox copies
not proved to be taken though they are
secondary evidence. The Tribunal should
consider the same. The decision of Tribunal
is perverse for discarding all evidence. The
judgment of Laxmi Devi (supra) has
applicable to cases of labaur when the men
or women does not have any vocation or
income. The recent judgment in the case of
Smt. Meena Pawaia & others Vs Ashraf
Ali and others 2001 0 Supreme (SC) 694
would also enure for the benefit of the
appellants. We, therefore, cannot concur
with the view taken by the Tribunal that
minimum of the income i.e. Rs.3,000/-
should be considered.

7. The Income Tax Returns are the
mirror of the income of the person
discarding the same is against the principle
of law enunciated by the Apex Court. In
F.A.F.O. No. 2019 of 2021 (Akhilesh
Kumar Anand Vs. Rahul Mishra and
Another) decided on 18.4.2022, the
Division Bench of this Court has held as
follows:-

"11. The Apex court decision in
Anita Sharma Vs. New India Assurance
Company Ltd, 2021 (1) SCC 171 and
Vimla Devi and others Vs. National
Insurance Company Limited and another,
(2019) 2 SCC 186, has held that strict
proof of all facts is not necessary to decide
the motor accident claim petition. The
Tribunal should take the holistic view of the
matter and the claimant has to establish
his/her
case
on
the
touchstone
of
preponderance of probability.

12.
The
Division
Bench
of
Madhya Pradesh High Court in Reliance
General
Insurance
Co.
Ltd.
Vs.
Subbulakhmi and others passed in CMA
No. 1482 of 2017 has also expressed the
same view with regard to the standard of
proof.

13. In Bimla Devi and others Vs.
Himanchal Road Transport Corporation
890 INDIAN LAW REPORTS ALLAHABAD SERIES
and others 2009 (2013) SCC 530, also the
Apex Court held that the claimants were
merely to establish their case on the
touchstone
of
preponderance
of
probability. The standard of proof beyond
reasonable doubt could not have been
applied.

14.
Learned
Tribunal
has
discarded the documentary evidence, filed
by the appellant with regard to the salary
of the deceased. Learned Tribunal could
have invoked the powers under Section 169
of the Motor Vehicle Act, 1988, which gives
claims Tribunal all the powers of Civil
Courts for the purpose of taking evidence,
and enforcing the attendance of the
witnesses and compel the discovery and
proof of documents and material objects. If
the learned Tribunal wanted to get the
salary certificate and payment register to
be proved, it could have suo moto
summoned the concerned employee of the
school with original record because it is the
duty of the Tribunal to award 'just
compensation'."

8. Section 169 in The Motor Vehicles
Act, 1988-

"169. Procedure and powers of
Claims Tribunals.?

(1) In holding any inquiry under
section 168, the Claims Tribunal may,
subject to any rules that may be made in
this behalf, follow such summary procedure
as it thinks fit.

(2) The Claims Tribunal shall
have all the powers of a Civil Court for the
purpose of taking evidence on oath and of
enforcing the attendance of witnesses and
of compelling the discovery and production
of documents and material objects and for
such other purposes as may be prescribed;
and the Claims Tribunal shall be deemed to
be a Civil Court for all the purposes of
section 195 and Chapter XXVI of the Code
of Criminal Procedure, 1973 (2 of 1974).

(3) Subject to any rules that may
be made in this behalf, the Claims Tribunal
may, for the purpose of adjudicating upon
any claim for compensation, choose one or
more persons possessing special knowledge
of and matter relevant to the inquiry to
assist it in holding the inquiry."

9. The age of the deceased as decided
by the Tribunal is maintained. The
multiplier for the age 34 years would be 16
and not 17. For non-pecuniary damages, we
grant Rs.70,000/- and Rs.50,000/- each to
the three minor child. The deduction of
1/4th made by the Tribunal is confirmed.

10. This takes this Court to the issue
of compensation. The income of the
deceased in the year of accident and
looking to his profession namely that of
L.I.C. Agent can be considered to be
Rs.30,000/- per month to which as he was
below 40 years, 40% as future loss of
income requires to be added in view of the
decision of the Apex Court in National
Insurance Company Limited Vs. Pranay
Sethi and Others, 2017 0 Supreme (SC)
1050.

11. Hence, the total compensation
payable to the appellants in view of the
decision of the Apex Court in Pranay
Sethi (Supra) is computed herein below:

i.
Income
Rs.20,000/-
per
month

ii. Percentage towards future
prospects
:
40%
namely
Rs.8,000/-
6 All. Smt. Sunita Bansal Gupta & Anr. Vs. Smt. Ranjana Gupta & Anr.
891

iii. Total income : Rs. 20,000 +
8,000 = Rs. 28,000/-

iv. Income after deduction of
1/4th : Rs. 21,000/-

v. Annual income : Rs.21,000 x
12 = Rs. 2,52,000/-

vi. Multiplier applicable : 16

vii.
Loss
of
dependency:
Rs.2,52,000 x 16 = Rs.40,32,000/-

viii.
Amount
under
filial
consortium and other non pecuniary heads :
Rs.70,000/- + Rs.50,000/- to the each 3
minor children

x.
Total
compensation
:
42,52,000/-

12. 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."

13. No other grounds are urged orally
when the matter was heard.

14. In view of the above, the appeal is
partly allowed. Judgment and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The respondent-Insurance
Company shall deposit the amount within a
period of 12 weeks from today with interest
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.

15. 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 10 years have
elapsed, the amount be deposited in the
Saving Account of claimants in Nationalized
Bank without F.D.R.

16. Record be sent back to the tribunal.

17. This Court is thankful to both the
counsels for getting this matter decided.
----------
(2022)06ILR A891
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2022

BEFORE

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

First Appeal From Order No. 2030 of 2011

Smt. Sunita Bansal Gupta & Anr.
 ...Appellants
Versus
Smt. Ranjana Gupta & Anr. ...Respondents

Counsel for the Appellants:
Sri Sanjay Agarwal, Sri Abhijit Banerjee, Sri
Sundeep Agarwal