# Smt. Shaheen & Ors v. Manoj Kumar & Ors

- **Citation:** (2021) 5 ILRA 46
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-24
- **Case number:** FAFO (D) No. 1163 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shaheen-ors-v-manoj-kumar-ors-46979
- **Pages:** 6

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Section163A -Compensation enhancement
- Special provisions as to payment of
compensation on structured formula basis
- contributory negligence - A person who
either contributes or is author of the
accident
would
be
liable
for
his
contribution to the accident having taken
place - future loss of income should be
granted (National Insurance Company
Limited Vs. Pranay Sethi and others, 2017
0 Supreme (SC) 1050) .(Para - 10,13)
Dispute relates only to computation and
negligence of the deceased as decided by the
Tribunal - claimants, challenges the judgment
and award passed by Motor Accident Claims
Tribunal awarding a sum of Rs.92,375/- with
interest at the rate of 6%.(Para - 2)

HELD:- Total compensation payable to the
appellants is Rs.10,07,200 /- . Out of the
awarded amount deceased liable to the tune of
50% of negligence . Award and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The respondent-Insurance
Company shall deposit the additional amount
within a period of 12 weeks from today without
deducting TDS . The amount already deposited
be deducted from the amount to be deposited.
(Para - 15,17)

Appeal partly allowed. (E-6)

List of Cases cited:-

## Text

46 INDIAN LAW REPORTS ALLAHABAD SERIES

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

12. 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 petitioner till the amount is deposited.
The amount already deposited be deducted
from the amount to be deposited.
----------
(2021)05ILR A46
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2021

BEFORE

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

FAFO (D) No. 1163 of 2011

Smt. Shaheen & Ors. ...Appellants
Versus
Manoj Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri S.D. Ojha

Counsel for the Respondents:
Sri Ashish Kumar Srivastava

(A) Civil Law - Motor Vehicles Act, 1988 -
Section163A -Compensation enhancement
- Special provisions as to payment of
compensation on structured formula basis
- contributory negligence - A person who
either contributes or is author of the
accident
would
be
liable
for
his
contribution to the accident having taken
place - future loss of income should be
granted (National Insurance Company
Limited Vs. Pranay Sethi and others, 2017
0 Supreme (SC) 1050) .(Para - 10,13)
Dispute relates only to computation and
negligence of the deceased as decided by the
Tribunal - claimants, challenges the judgment
and award passed by Motor Accident Claims
Tribunal awarding a sum of Rs.92,375/- with
interest at the rate of 6%.(Para - 2)

HELD:- Total compensation payable to the
appellants is Rs.10,07,200 /- . Out of the
awarded amount deceased liable to the tune of
50% of negligence . Award and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The respondent-Insurance
Company shall deposit the additional amount
within a period of 12 weeks from today without
deducting TDS . The amount already deposited
be deducted from the amount to be deposited.
(Para - 15,17)

Appeal partly allowed. (E-6)

List of Cases cited:-

1. Bajaj Allianz General Insurance Comp. Ltd. Vs
Smt. Renu Singh & ors. First Appeal From Order
No.1818 of 2012

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

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

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

5. A.V. Padma Vs Venugopal, 2012 (1) GLH (SC), 442

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

1. Heard Sri S.D. Ojha counsel for the
claimants-appellants and Sri Ashish Kumar
Srivastava for the Insurance Company.
None for the owner, though served.

2. Though this is a defective appeal,
we decided it finally as the dispute relates
only to computation and negligence of the
deceased as decided by the Tribunal.
5 All. Smt. Shaheen & Ors. Vs. Manoj Kumar & Ors.
47

3. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 3.12.2010 passed by Motor
Accident
Claims
Tribunal,
Additional
District Judge, Court No.02, Muzaffar
Nagar( hereinafter referred to as 'Tribunal')
in MACP No.235 of 2009 awarding a sum
of Rs.92,375/- with interest at the rate of
6%.

4. This is a delayed appeal filed in the
year 2011 though vehemently objected by
the counsel. We condoned the delay in
filing the appeal.

5. As the Insurance Company may not
be saddled with interest after the matter
would be admitted. Records be called.
Paper books be filed and then enhancement
is made as the judgment of the Tribunal is
against the saddled principle enunciated by
the Apex Court in Kirti Versus Oriental
Insurance Company limited, (2021) 1 TAC
page 1. We have requested the counsels to
agree for getting the appeal disposed of
today as it is covered by the judgment of
Apex Court in the case of National
Insurance Company Limited Vs. Pranay
Sethi and others, 2017 0 Supreme (SC)
1050.

6. There is an error apparent on the
face of record that the Tribunal has not
considered awarding the amount under the
head of what can be said to be future loss
of income for the death of young person
aged about 23 years of age who was a
driver by profession. The Tribunal has
considered his income to be Rs.3,000/- per
month in the year 2009, applied multiplier
of 15 and granted Rs.92,375/- under the
head of non pecuniary damages. The
deceased was survived by a minor
daughter, widow and parents.

7. Sri S.D. Ojha, learned counsel
for appellant submits that there are multiple
errors first in considering the income,
second not granting future prospects and
third applying wrong multiplier and lastly
considering
the
deceased
to
have
contributed 75% to the accident having
taken place.

8. Learned counsel for the respondent
contended that the income considered
cannot be said to be erroneous. The
multiplier cannot be said to be erroneous
and it is granted as per Law applicable. The
amount awarded is just and proper under
the head of non pecuniary damages
considering the rules of Uttar Pradesh.

9. While considering the fact at the
outset, we feel that the Tribunal has
considered
pecuniary
damages
as
if
considering the case under Section 163A of
the Act, hence, the said finding is bad.

10. The question 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.

11. The Division Bench of this Court
in First Appeal From Order No.1818 of
2012 ( Bajaj Allianz General Insurance
Company Limited Versus Smt. Renu Singh
and others) decided on 19.7.2016 has held
as under: -

"16. The term negligence means
failure to exercise required degree of care
and caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
48 INDIAN LAW REPORTS ALLAHABAD SERIES
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
cause physical injury to person. The degree
of care required, of course, depends upon
facts in each case. On these broad
principles, 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, 1988 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 should 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. This is termed
negligence.

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.
In
light
of
the
above
discussion, I am 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, Courts
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
5 All. Smt. Shaheen & Ors. Vs. Manoj Kumar & Ors.
49
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.

21. 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 of
driver of another vehicle."

12. We will have to appreciate the
fact of negligence on the touchstone on
evidence laid before the Tribunal. The
Tribunal has considered the site plan,
evidence of driver Krishna Pal, the driver
Krishna Pal was driving his vehicle at a
moderate speed. All the light of the said
vehicle in working condition. He had
parked his vehicle on its correct side as the
tyre of the said vehicle had busted at that
point of time the driver of Tata-1109
namely the deceased came and rammed. If
this fact is believe, his earlier version that
he had sustained injuries because of the
accident and not throwing light where he
was when the accident took place. The FIR
and the witness Abid has in his oral
testimony opined that the truck overtook
the truck which was being driven by the
deceased and abruptly applied breaks this
fact has not been believed by the Tribunal.
The driver of the offending vehicle was
arrested on the spot and he was chargesheeted by the Police is accepted by the
driver in his cross examination before the
Tribunal. He did not lodge any FIR. His
vehicle having been stationary due to
bursting of tyre no were finds place in the
FIR . In this view of the matter, both the
vehicles were found near the divider has
not applied breaks. The driver driving a
vehicle must maintain proper distance. In
view of the matter we hold both the driver
equally negligence.

13. It is submitted by counsel for the
appellant that the total amount awarded by
the Tribunal does not carry any amount for
future loss of income which is apparent
on the face of record and requires to be
interfered with as recently the Apex Court
in
National
Insurance
Company
Limited Vs. Pranay Sethi and others,
2017 0 Supreme (SC) 1050 has held that
future loss of income should be granted.

14. This takes us to the income of
the
deceased.
The
Tribunal
has
committed an error by considering the
income of the deceased. The deceased
who was driver by profession was
qualified driver and his income can be
said to be even if we consider bare wages
in the year 2009, it would be Rs.4,500/-
to which 40% will have to be added as
per his age being below 50 years, out of
which we would have to deduct 1/3rd for
the personal expenses of the deceased and
granted multiplier of 18 as he was 23
years of age. As far as non pecuniary
damages are concerned, it should be
Rs.70,000/- with 10% rise every three
years as per judgment of National
Insurance
Company
Limited
Vs.
Pranay Sethi and others which would
be roughly calculated as Rs.1,00,000/-.

15. Hence, the total compensation
payable to the appellants is computed
herein below : -

i. Income : Rs.4,500/- per
month
50 INDIAN LAW REPORTS ALLAHABAD SERIES

ii. Percentage towards future
prospects : 40% namely Rs.1,800/-
per month

iii. Total income : Rs.4,500 +
Rs.1,800/- = Rs.6,300/-

iv. Income after deduction of
1/3rd = Rs.4,200/-

v. Annual income : Rs.4,200/-
x 12 = Rs.50,400/-

vi. Multiplier applicable : 18

vii. Loss of dependency :
Rs.50,400/- x 18 = Rs.9,07,200/-

viii.
Amount
under
non
pecuniary damages : Rs.1,00,000/-

ix.
Total
compensation
:
Rs.10,07,200 /-

16. Out of the awarded amount as
we have held that deceased liable to the
tune of 50% of negligence. The amount
is halved.

17. 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 additional amount
within a period of 12 weeks from today
without deducting TDS for which
reasons are assigned herein below. The
amount already deposited be deducted
from the amount to be deposited.

18. 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 restic villagers.

19. 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.

20. 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
----------
5 All. National Insurance Co. Ltd. Vs. Smt. Anuradha Kejriwal & Ors.
51
(2021)05ILR A51
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2021

BEFORE

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

FAFO No. 2103 of 2017
With
FAFO No.1735 of 2017
with
FAFO No. 1819 of 2017

National Insurance Co. Ltd. ...Appellant
Versus
Smt. Anuradha Kejriwal & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Kuldeep Shanker Amist, Sri Manoj
Nigam

Counsel for the Respondents:
Sri Amit Kumar Sinha, Deepali Srivastava
Sinha, Sri Mata Pher, Sri Ram Singh, Sri
Manoj Nigam

(A) Civil Law - Motor Vehicles Act, 1988 -
Section 166 - Compensation enhancement
- Application for Compensation , Sections
147 - Requirements of policies and limits
of liability, Sections 149 - Duty of insurers
to satisfy judgments and awards against
persons insured in respect of third party
risks - rash and negligent driving -
negligence - 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
-
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
-
in
case
of
motor
accident
compensation, guess work is inevitable.
(Para - 6,17,18,41)

Claimants (legal heirs namely widow and
parents of the deceased who died in the
vehicular accident) filed claim petition before
the Tribunal claiming sum of Rs.3,40,50,000/- -
Claimants as well as the Insurance Company
saddled with liability - aggrieved by the award
and decree passed by Motor Accident Claims
Tribunal/ Additional District Judge - awarding
sum of Rs.69,70,500/- as compensation with
interest at the rate of 7%.

HELD:- The compensation payable to the
appellants (in view of the decision of the Apex
Court in National Insurance Company
Limited Vs. Pranay Sethi & ors., 2017 0
Supreme (SC) 1050) is Rs.98,44,700/- Award
and decree passed by the Tribunal shall stand
modified the apportionment as 60% to the
parents and 40% to the young widow of the
additional amounts. The respondents shall
jointly and severally liable to pay additional
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. (Para - 48,50)

Appeals (Preferred by claimants) partly
allowed .

Appeal (Preferred by Insurance Company)
dismissed. (E-6)

List of Cases cited:-

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

2. Munna Lal Vs Vipin, 2015 (3) TAC 1 SC and
Smt. Savita Vs Binder Singh, 2014 (2) TAC 385
(SC)

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