# Smt. Shalini Srivastava & Ors v. U.P.S.R.T.C. & Ors

- **Citation:** (2022) 4 ILRA 263
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-04
- **Case number:** First Appeal From Order No. 2744 of 2010
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shalini-srivastava-ors-v-u-p-s-r-t-c-ors-48308
- **Pages:** 12

## Headnote

(A) Torts Law - Motor vehicle Act,1988 -
quantum of compensation - Principle of "
res ipsa loquitur" - " the things speak for
itself"
-
composite/contributory
negligence - head on collision - deceased
or the person concerned should be shown
to have contributed either to the accident
and the impact of accident upon the victim
could have been minimised if he had taken
care .(Para - 10)

(B) Torts law - Principle of Contributory
negligence
-
a
person
who
either
contributes or is co author of the accident
would be liable for his contribution to the
accident
having
taken
place
-
that
amount
will
be
detected
from
the
compensation payable to him if he is
injured - to legal representative if he dies
in the accident .(Para - 7)

(C) Tax Law - The Income Tax Act, 1961-
Section 194A (3) (ix) - total amount of
interest, accrued on the principal amount
of compensation is to be apportioned on
financial year to financial year basis - 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' - if the
amount of interest does not exceeds
Rs.50,000/- in any financial year - registry
of Tribunal is directed to allow the
claimants
to
withdraw
the
amount
without producing the certificate from the
concerned Income-Tax Authority. (Para -
21)

Accident - Bus knocked down Motorcyclist -
died - Tribunal took the income of the deceased
to be a notional income of Rs.3,000/- only -
50% negligent held by tribunal - Awarding a
sum of Rs. 2,21,500/- as compensation -
interest at the rate of 6% - against
Rs.60,00,000/-
claimed
by
the
claimantsappellants - aggrieved hence appeal. (Para - )

HELD:-Court held the driver of the Bus 75%
negligent and the deceased to be 25%
negligent. income of the deceased to be
Rs.7,500/-
per
month.Total
compensation
payable to the appellants is 11,62,500/-.
Direction to respondent-U.P.S.R.T.C. to deposit
the amount along with 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.
Amount already deposited be deducted from the
amount to be deposited.(Para - 11,13,16)

Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,964 of 40,345. This is a partial read: ask again with offset=39964 for what follows._

4 All. Smt. Shalini Srivastava & Ors. Vs. U.P.S.R.T.C. & Ors.
263
We make it clear that the provisions of law
demanding of 50% would be a directly
order but provisions of Section 75 (2B) are
not mandatory.

13. We are thankful to both the
counsels for ably assisting us.
----------
(2022)04ILR A263
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2022

BEFORE

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

First Appeal From Order No. 2744 of 2010

Smt. Shalini Srivastava & Ors. ...Appellants
Versus
U.P.S.R.T.C. & Ors. ...Respondents

Counsel for the Appellants:
Sri Sharve Singh

Counsel for the Respondents:
Sri Dinkar Mani Tripathi, Sri Samir Sharma

(A) Torts Law - Motor vehicle Act,1988 -
quantum of compensation - Principle of "
res ipsa loquitur" - " the things speak for
itself"
-
composite/contributory
negligence - head on collision - deceased
or the person concerned should be shown
to have contributed either to the accident
and the impact of accident upon the victim
could have been minimised if he had taken
care .(Para - 10)

(B) Torts law - Principle of Contributory
negligence
-
a
person
who
either
contributes or is co author of the accident
would be liable for his contribution to the
accident
having
taken
place
-
that
amount
will
be
detected
from
the
compensation payable to him if he is
injured - to legal representative if he dies
in the accident .(Para - 7)

(C) Tax Law - The Income Tax Act, 1961-
Section 194A (3) (ix) - total amount of
interest, accrued on the principal amount
of compensation is to be apportioned on
financial year to financial year basis - 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' - if the
amount of interest does not exceeds
Rs.50,000/- in any financial year - registry
of Tribunal is directed to allow the
claimants
to
withdraw
the
amount
without producing the certificate from the
concerned Income-Tax Authority. (Para -
21)

Accident - Bus knocked down Motorcyclist -
died - Tribunal took the income of the deceased
to be a notional income of Rs.3,000/- only -
50% negligent held by tribunal - Awarding a
sum of Rs. 2,21,500/- as compensation -
interest at the rate of 6% - against
Rs.60,00,000/-
claimed
by
the
claimantsappellants - aggrieved hence appeal. (Para - )

HELD:-Court held the driver of the Bus 75%
negligent and the deceased to be 25%
negligent. income of the deceased to be
Rs.7,500/-
per
month.Total
compensation
payable to the appellants is 11,62,500/-.
Direction to respondent-U.P.S.R.T.C. to deposit
the amount along with 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.
Amount already deposited be deducted from the
amount to be deposited.(Para - 11,13,16)

Appeal partly allowed. (E-7)

List of Cases cited:-

1.
General
Manager,
Kerala
S.R.T.C.
Vs
Susamma Thomas, 1994 SCC (2) 176

2. Sarla Verma & ors. Vs D.T.C. & anr., 2009
LawSuit (SC)
264 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Bajaj Allianz General Insurance Co.Ltd. Vs
Smt. Renu Singh & ors., F.A.F.O. No. 1818 of
2012

4. Khenyei Vs New India Assurance Company
Ltd. & ors., 2015 LawSuit (SC) 469

5. T.O. Anthony Vs Karvarnan & ors. ,2008 (3)
SCC 748

6. Archit Saini & anr. Vs Oriental Insurance
Company Ltd., AIR 2018 SC 1143

7. Anita Sharma Vs New India Assurance Co.
Ltd. (2021) 1 SCC 171

8. Smt. Meena Pawaia & ors. Vs Ashraf Ali &
ors. 2021 0 Supreme (SC) 694

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

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

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

12. Smt. Hansaguri P. Ladhani Vs The Oriental
Insurance Company Ltd., 2007(2) GLH 291

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

14. Bajaj Allianz General Insurance Company
Pvt. Ltd. Vs U.O I. & ors.

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

1. Heard Sri Sharve Singh, learned
counsel for the appellant and Sri Dinkar
Mani Tripathi, learned counsel for the
respondent.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 31.5.2010 passed by the Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No.14, Varanasi
(hereinafter referred to as 'Tribunal') in
M.A.C.P No.84 of 2008 awarding a sum of
Rs.2,21,500/- as compensation with interest
at the rate of 6% against Rs.60,00,000/-
claimed by the claimants-appellants.

3. The accident took place on
12.12.2007 at 12.00 noon on VaranasiJaunpur Road near Reliance Petrol Pump
within Police Station Bara Gaon, District
Varanasi. Bus of U.P. State Road Transport
Corporation is alleged to have knocked
down the Motorcyclist who died in the said
accident. It is an admitted position of fact
and not disputed that the deceased died on
the spot. The deceased at the time of
accident was a medical officer namely
Senior Territory Executive and was aged
about 38 years of age. He was getting
Rs.7500/- along with Rs.200/- allowance
per day if he went out of headquarter.
While deciding the claim petition, the
Tribunal has granted sum of Rs.2,21,500/-.
The Tribunal took the income of the
deceased to be a notional income of
Rs.3,000/- only as according to the
Tribunal, it was not proved that he was in
service. The salary certificate, Income Tax
Returns and appointment letter which was
not even rebutted by the respondent, was
brushed aside by the Tribunal. Tribunal in
the year of accident was governed by the
judgment by the Apex Court in General
Manager, Kerala S.R.T.C. vs. Susamma
Thomas, 1994 SCC (2) 176, this fact was
also not looked into. The decision in Sarla
Verma and others Vs. Delhi Transport
Corporation and Another, 2009 LawSuit
(SC), though pressed into service by the
appellants-claimants was not considered.

4. The Tribunal hold the deceased to
be 50% negligent. This twin issues are
4 All. Smt. Shalini Srivastava & Ors. Vs. U.P.S.R.T.C. & Ors.
265
posed for consideration namely whether the
deceased was contributed to the accident
having taken place if yes, to what extent
and what is the compensation to be paid to
the claimants.

5. While dealing with submission on
issue of negligence raised by the learned
counsel for the appellant, it would be
relevant to discuss the principles for
deciding contributory negligence and for
that
the
principles
for
considering
negligence will also have to be looked into.

6. 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.

7. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or is
co author of the accident would be liable
for his contribution to the accident having
taken place and that amount will be
deducted from the compensation payable to
him if he is injured and to legal
representatives if he dies in the accident.

8. The Division Bench of this Court in
First Appeal From Order No. 1818 of
2012 ( Bajaj Allianz General Insurance
Co.Ltd. Vs. Smt. Renu Singh And
Others) decided on 19.7.2016 has held as
under :

"16. Negligence means failure to
exercise required degree of care and
caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence.
It is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one. It is rather a
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no
legal consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

17. It would be seen that burden
of proof for contributory negligence on the
part of deceased has to be discharged by
the opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection
where two roads cross each other, it is the
duty of a fast moving vehicle to slow down
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.
266 INDIAN LAW REPORTS ALLAHABAD SERIES

18. 10th Schedule appended to
Motor
Vehicle
Act
contain
statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation
clearly directs that the driver of every
motor vehicle to slow down vehicle at every
intersection or junction of roads or at a
turning of the road. It is also provided that
driver of the vehicle should not enter
intersection or junction of roads unless he
makes sure that he would not thereby
endanger
any
other
person.
Merely,
because driver of the Truck was driving
vehicle on the left side of road would not
absolve him from his responsibility to slow
down vehicle as he approaches intersection
of roads, particularly when he could have
easily seen, that the car over which
deceased was riding, was approaching
intersection.

19. In view of the fast and
constantly increasing volume of traffic,
motor vehicles upon roads may be regarded
to some extent as coming within the
principle of liability defined in Rylands
V/s. Fletcher, (1868) 3 HL (LR) 330. From
the point of view of pedestrian, the roads of
this country have been rendered by the use
of motor vehicles, highly dangerous. 'Hit
and run' cases where drivers of motor
vehicles who have caused accidents, are
unknown. In fact such cases are increasing
in number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the case
may be, should be entitled to recover
damages if principle of social justice
should have any meaning at all.

20. These provisions (sec.110A
and sec.110B of Motor Act, 1988) are not
merely
procedural
provisions.
They
substantively affect the rights of the parties.
The right of action created by Fatal
Accidents Act, 1855 was 'new in its species,
new in its quality, new in its principles. In
every way it was new. The right given to
legal representatives under Act, 1988 to file
an application for compensation for death
due to a motor vehicle accident is an
enlarged one. This right cannot be hedged
in by limitations of an action under Fatal
Accidents Act, 1855. New situations and
new dangers require new strategies and
new remedies.

21. In the light of the above
discussion, we are of the view that even if
courts may not by interpretation displace
the principles of law which are considered
to be well settled and, therefore, court
cannot dispense with proof of negligence
altogether in all cases of motor vehicle
accidents, it is possible to develop the law
further on the following lines; when a
motor
vehicle
is
being
driven
with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits (per three-Judge Bench in
Jacob Mathew V/s. State of Punjab, 2005
0 ACJ(SC) 1840).

22. By the above process, the
burden of proof may ordinarily be cast on
the defendants in a motor accident claim
petition to prove that motor vehicle was
being driven with reasonable care or that
there is equal negligence on the part the
other side."

emphasis added

9. The Apex Court in Khenyei Vs.
New India Assurance Company Limited &
Others, 2015 LawSuit (SC) 469 has held as
under:

"4. It is a case of composite
negligence where injuries have been caused
4 All. Smt. Shalini Srivastava & Ors. Vs. U.P.S.R.T.C. & Ors.
267
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 interse 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
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
268 INDIAN LAW REPORTS ALLAHABAD SERIES
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
subject-matter 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
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
4 All. Smt. Shalini Srivastava & Ors. Vs. U.P.S.R.T.C. & Ors.
269
proceedings after passing of the decree or
award."

emphasis added

10. The latest decision of the Apex
Court in Khenyei (Supra) has laid down
one further aspect about considering the
negligence
more
particularly
composite/contributory
negligence.
The
deceased or the person concerned should be
shown to have contributed either to the
accident and the impact of accident upon
the victim could have been minimised if he
had taken care. Considering the facts and
circumstances of the case we hold the
deceased to be 25% negligent as the
evidence of D.W.1 goes to show that the
death of the deceased occurred on the spot.
We are even fortified in our view by the
decision of the Apex Court in Archit Saini
and Another Vs. Oriental Insurance
Company Limited, AIR 2018 SC 1143
wherein the finding of the Tribunal was
upheld by adverting to the same more
particularly the Apex Court has upheld the
finding in paragraph 21 to 27 in its
judgment. The paragraph 5 of the said Apex
Court's
judgment
is
reproduced
hereinbelow:

"5.The respondents had opposed
the claim petition and denied their liability
but did not lead any evidence on the
relevant issue to dispel the relevant fact.
The Tribunal after analysing the evidence,
including the site map (Ext. P-45) produced
on record along with charge-sheet filed
against the driver of the Gas Tanker and
the arguments of the respondents, answered
Issue 1 against the respondents in the
following words:

"21. Our own Hon'ble High
Court in a case captioned Lakhu Singh v.
Uday Singh [Lakhu Singh v. Uday Singh,
2007 SCC OnLine P&H 865 : PLR (2007)
4 P&H 507] held that while considering a
claim petition, the Tribunal is required to
hold an enquiry and act not as criminal
court so as to find whether the claimants
have established the occurrence beyond
shadow of any reasonable doubt. In the
enquiry, if there is prima facie evidence of
the occurrence there is no reason to
disbelieve such evidence. The statements
coupled with the facts of registration of FIR
and trial of the accused in a criminal court
are sufficient to arrive at a conclusion that
the accident has taken place. Likewise, in
Kusum Lata v. Satbir [Kusum Lata v.
Satbir, (2011) 3 SCC 646 : (2011) 2 SCC
(Civ) 37 : (2011) 2 SCC (Cri) 18 : (2011) 2
RCR (Civil) 379] the Hon'ble Apex Court
has held that in a case relating to motor
accident claims, the claimants are not
required to rove the case as it is required to
be done in a criminal trial. The Court must
keep this distinction in mind. Strict proof of
an accident caused by a particular bus in a
particular manner may not be possible to
be done by the claimants. 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.

22.
After
considering
the
submissions made by both the parties, I
find that PW 7 Sohan Lal eyewitness to the
occurrence has specifically stated in his
affidavit Ext. PW 7/A tendered in his
evidence that on 15-12-2011 at about 20.30
p.m. he along with PHG Ajit Singh was
present near Sanjha Chulha Dhaba on the
National Highway leading to Jammu. All
the traffic of road was diverted on the
eastern side of the road on account of
closure of road on western side due to
construction work. In the meantime a
Maruti car bearing No. HR 02 K 0448
came from Jammu side and struck against
the back of Gas Tanker as the driver of the
270 INDIAN LAW REPORTS ALLAHABAD SERIES
car could not spot the parked tanker due to
the flashlights of the oncoming traffic from
front side. Then they rushed towards the
spot of accident and noticed that the said
tanker was standing parked in the middle of
the road without any indicators or parking
lights.

23. The statement of this witness
clearly establishes that this was the sole
negligence on the part of the driver of the
Gas Tanker especially when the accident
was caused on 15-12-2011 that too at about
10.30 p.m. which is generally time of pitch
darkness. In this way, the driver of the car
cannot be held in any way negligent in this
accident. Moreover, as per Rule 15 of the
Road Regulations, 1989 no vehicle is to be
parked on busy road.

24. The arguments of the learned
counsel for the respondent that PW 7 Sohan
Lal has stated in his cross-examination that
there was no fog at that time and there were
lights on the Dhaba and the truck was
visible to him due to light of Dhaba and he
was standing at the distance of 70 ft from
the truck being road between him and the
truck and he noticed at the car when he
heard voice/sound caused by the accident
so Respondent 1 is not at all negligent in
this accident but these submissions will not
make the car driver to be in any way
negligent and cannot give clean chit to the
driver of the Gas Tanker because there is a
difference between the visibility of a
standing vehicle from a place where the
person is standing and by a person who is
coming driving the vehicle because due to
flashlights of vehicles coming from front
side the vehicle coming from opposite side
cannot generally spot the standing vehicle
in the road that too in night-time when
there is neither any indicator or parking
lights nor blinking lights nor any other
indication given on the back of the
stationed vehicle, therefore, the driver of
the car cannot be held to be in any way
negligent rather it is the sole negligence on
the part of the driver of the offending Gas
Tanker as held inGinni Devi case [Ginni
Devi v. Union of India, 2007 SCC OnLine
P&H 126 : 2008 ACJ 1572] , Mohan Lal
case [New India Assurance Co. Ltd. v.
Mohan Lal, 2006 SCC OnLine All 459 :
(2007) 1 ACC 785 (All)] . It is not the case
of the respondent that the parking lights of
the standing truck were on or there were
any other indication on the backside of the
vehicle standing on the road to enable the
coming vehicle to see the standing truck.
The other arguments of the learned counsel
for Respondent 3 that the road was
sufficient wide road and that the car driver
could have avoided the accident, so the
driver of the car was himself negligent in
causing the accident cannot be accepted
when it has already been held that the
accident has been caused due to sole
negligence of the driver of the offending
stationed truck in the busy road. The
proposition of law laid down in Harbans
Kaur case [New India Assurance Co. Ltd.
v. Harbans Kaur, 2010 SCC OnLine P&H
7441 : (2010) 4 PLR 422 (P&H)] and T.M.
Chayapathi case [New India Assurance Co.
Ltd. v. T.M. Chayapathi, 2004 SCC OnLine
AP 484 : (2005) 4 ACC 61] is not disputed
at all but these authorities are not helpful
to the respondents being not applicable on
the facts and circumstances of the present
case. Likewise, non-examination of minor
children of the age of 14 and 9 years who
lost their father and mother in the accident
cannot be held to be in any way detrimental
to the case of the claimants when
eyewitness to the occurrence has proved the
accident having been caused by the
negligence of Respondent 1 driver of the
offending vehicle.

25. Moreover, in Girdhari Lal v.
Radhey Shyam [Girdhari Lal v. Radhey
4 All. Smt. Shalini Srivastava & Ors. Vs. U.P.S.R.T.C. & Ors.
271
Shyam, 1993 SCC OnLine P&H 194 : PLR
(1993) 104 P&H 109] , Sudama Devi v.
Kewal Ram [Sudama Devi v.Kewal Ram,
2007 SCC OnLine P&H 1208 : PLR (2008)
149 P&H 444] andPazhaniammal case
[New
India
Assurance
Co.
Ltd.
v.
Pazhaniammal, 2011 SCC OnLine Ker
1881 : 2012 ACJ 1370] our own Hon'ble
High Court has held that ''it is, prima facie
safe to conclude in claim cases that the
accident has occurred on account of rash
or negligent driving of the driver, if the
driver is facing the criminal trial on
account of rash or negligent driving.'

26.
Moreover,
Respondent
1
driver of the offending vehicle has not
appeared in the witness box to deny the
accident having been caused by him,
therefore, I am inclined to draw an adverse
inference against Respondent 1. In this
context, I draw support from a judgment of
the Hon'ble Punjab & Haryana High Court
reported asBhagwani Devi v. Krishan
Kumar Saini[Bhagwani Devi v. Krishan
Kumar Saini, 1986 SCC OnLine P&H 274
: 1986 ACJ 331] . Moreover, Respondent 1
has also not filed any complaint to higher
authorities about his false implication in
the criminal case so it cannot be accepted
that Respondent 1 has been falsely
implicated in this case.

27. In view of above discussion, it
is held that the claimants have proved that
the accident has been caused by Respondent
1 by parking the offending vehicle bearing
No. HR 02 AF 8590 in the middle of the road
in a negligent manner wherein Vinod Saini
and Smt Mamta Saini have died and
claimants Archit Saini and Gauri Saini have
received injuries on their person. Shri Vinod
Saini, deceased who was driving ill-fated car
on that day cannot be held to be negligent in
any way. Accordingly, this issue is decided in
favour of claimants."

 (emphasis supplied)"

11. The evidence of P.W.2 and D.W.1
read with each other goes to show that the
Motorcyclist while trying to save a cyclist
dashed with the bus of U.P.S.R.T.C. Had
the driver of the bus of U.P.S.R.T.C. which
was a bigger vehicle taken more caution,
the accident could have been avoided but as
there was head on collision, the Tribunal
has apportioned the liability on the basis of
head on collision. Rather the driver of
U.P.S.R.T.C. Bus has taken stand that his
vehicle
did
not
dashed
with
the
motorcyclist. Injury goes to show that the
impact was such that the deceased died due
to accidental injuries cause by the big
vehicle. The driver driving bigger vehicle
on the highway is supposed to take more
caution. We, therefore, hold the driver of
the Bus of U.P.S.R.T.C. 75% negligent and
the deceased to be 25% negligent.

12. This takes us to the issue of quantum
of compensation awarded. It is submitted by
learned counsel for the appellant that the finding
of fact of the Tribunal that Income Tax Return
of earlier years cannot be considered which was
just preceding the year when the deceased died
is perverse. The accident occurred in the month
of December, 2007, the Income Tax Return,
Pay slip and other material were before the
Tribunal. The Tribunal has not properly
scrutinized the same, and has wrongly
considered the minimum amount as income and
considered that the deceased was earning only
Rs.3,000/- per month. The income was below
the taxable limit but as he was service
personnel, the income tax return was filed
which is on record. The finding is not only
perverse finding but absurdity has percolated in
the award of the Tribunal. The salary certificate
shows the income of the deceased to be
Rs.7,500/- per month.

13. This Court is unable to accept the
submission of Sri Dinkar Mani Tripathi,
272 INDIAN LAW REPORTS ALLAHABAD SERIES
learned counsel for the respondent that this
salary certificate cannot be taken in
evidence. We are fortified in our view by
the decision in Anita Sharma v. New
India Assurance Co. Ltd. (2021) 1 SCC
171. It is also an admitted position of fact
that for each day when the deceased would
go in the territory, he would be entitled to a
sum of Rs.100/- per day as allowance. We
do not consider the same. We consider the
income of the deceased to be Rs.7,500/- per
month. To which as the deceased was
below 40 years and was salaried person
50% to be added towards future loss of
income of the deceased in view of the
decision in Smt. Meena Pawaia & others
Vs. Ashraf Ali and others 2021 0
Supreme
(SC)
694
and
National
Insurance Co. Ltd. Vs. Pranay Sethi and
others, 2017 LawSuit (SC) 1093.

14. The deceased was survived by
widow, two minor children and parents.
The Tribunal has deducted 1/3rd towards
personal expenses of the deceased. Learned
counsel for the appellant states that it
should be 1/4th but the same is objected by
Sri Dinkar Mani Tripathi, learned counsel
for the respondent. We are in agreement
with learned counsel for the respondent that
deduction of 1/3rd towards personal
expenses is just and proper. Tribunal has
granted multiplier of 16, which according
to learned counsel for the respondent would
be 15. We accept the same looking to the
age of the deceased.

15. As far as amount under nonpecuniary
heads
is
concerned,
the
appellants would be entitled to Rs.70,000/-
+ 10% rise in every three years in view of
the decision of the Apex Court in National
Insurance Co. Ltd. Vs. Pranay Sethi and
others, 2017 LawSuit (SC) 1093, hence,
we grant Rs.1,00,000/- (rounded figure)
towards non pecuniary damages. We award
Rs.50,000/- each to minor children of the
deceased towards love and affection who
have lost their father at a very prime age.

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

i. Monthly Income: Rs.7,500/-

ii. Percentage towards future
prospects : 50% namely Rs.3,750/-

iii. Total income : Rs.7,500
+3,750 = Rs.11,250/-

iv. Income after deduction of
1/3rd
towards
personal
expenses
:
Rs.7,500/-

v. Annual income : Rs.7,500 x 12
= Rs.90,000/-

vi. Multiplier applicable : 15

vii.
Loss
of
dependency:
Rs.90,000 x 15 = Rs.13,50,000/-

viii. Amount under non pecuniary
heads : Rs.1,00,000 + Rs.50,000 +
Rs.50,000 = Rs.2,00,000/-

ix.
Total
compensation
:
Rs.15,50,000/-

x. Amount payable to claimants
after deducting 25% negligence of the
deceased : 11,62,500/-

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
4 All. Smt. Shalini Srivastava & Ors. Vs. U.P.S.R.T.C. & Ors.
273
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. 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
respondentU.P.S.R.T.C. 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.

20. 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 be passed by
Tribunal..

21. 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.

22.

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 judgment of
A.V. Padma (supra). The same is to be
applied looking to the facts of each case.

23. 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 15 years have
elapsed, the amount be deposited in the
Saving
Account
of
claimants
in
Nationalized Bank without F.D.R.

24. This Court is thankful to both
the counsels for getting this old matter
decided.
----------
274 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)04ILR A274
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE KRISHAN PAHAL, J.

First Appeal From Order No. 3192 of 2017

National Insurance Co. Ltd., Ashok Nagar,
Kanpur ...Appellant
Versus
Smt. Archana Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Radhey Shyam, Sri Sushil Kumar
Mehrotra

Counsel for the Respondents:
Sri Mohd. Naushad Siddiqui, Sri Shirish
Srivastava

(A) Torts Law - Motor Vehicle Act,1988 -
Sections 163-A ,166 & 173 - quantum of
compensation - juxtaposition - U.P. Motor
Vehicles (Eleventh Amendment) Rules,
2011 - Rule 220-A(2)(ii)and(iii) , Rule
220-A 3(iii) , Rule 220-A (3) - for the
deduction towards personal and living
expenses of a married person (deceased),
a minor dependent will be counted as half
- Principle of standardisation - when a
person is in a permanent job, there should
be an addition of 15% if the deceased is
between the age of 50 to 60 years and
there should be no addition thereafter - in
case of self-employed or person on fixed
salary, the addition should be 10%
between the age of 50 to 60 years. (Para
- 3,4,12)

Deduction of 1/4th for personal expenses of
deceased - dependent family members of
deceased - claim petition and noted by the
Tribunal - are five (5); wife, two minor children,
mother and father of the deceased - deceased
was admittedly more than 31 years of age on
the date of the accident - multiplier of 17
applied by tribunal .

HELD:-Deduction of 1/4th towards personal
and living expenses of deceased cannot be said
to be unjust or in contravention of Rule 220A(2)(ii) and (iii) . Court cannot curtail the
benefits provided by the Statute to the
claimant/respondent
when
the
statutory
provision was very much available in the statute
book . Declined to interfere in the decision of
the Tribunal in applying multiplier of 17 as per
the Second Schedule while computing the
compensation payable to the dependent of
deceased/claimants herein.(Para - 4,15,16)

Appeal dismissed .(E-7)

List of Cases cited:-

1. Sarla Verma & ors. Vs Delhi Transport Corp.
& anr.,2009 (6) SCC 121

2. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors., Civil Appeal no. 4634 of 2021

3. National Insurance Co. Ltd. Vs Pranay Sethi,
2017 (16) SCC 680

4. Kerala SRTC Vs Susamma Thomas, 1994 (2)
SCC 176

5. U.P.