# Smt. Shamim Begum & Ors v. Manager, National Insurance Company, Budaun & Ors

- **Citation:** (2021) 9 ILRA 464
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-02
- **Case number:** FAFO No. 2169 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shamim-begum-ors-v-manager-national-insurance-company-budaun-ors-47432
- **Pages:** 8

## Headnote

A. Civil Law - Motor Vehicle Act, 1988Section 176-challenge to-claim-deceased
was an agriculturist and was having
vocation of advocacy and the tribunal
considered her income Rs. 62000 p.a. but
has not granted future loss of income-the
deceased
was
survived
by
five
dependents-Total compensation would be
Rs. 10,79,995/- and rate of interest would
be 7% -the insurance company shall
deposit the amount within period of 12
weeks.(Para 1 to 18)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

464 INDIAN LAW REPORTS ALLAHABAD SERIES

"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. 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.

14. 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 Vs. Venugopal
reported in 2012 (1) GLH (SC) 442, the
order of investment is not passed because
applicants/claimants are neither illiterate
nor rustic villagers.

15. We are thankful to learned
counsel for the parties for getting decided
the matter.

16. Record, if any, be sent back to the
Tribunal.
----------
(2021)09ILR A464
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2021

BEFORE

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

FAFO No. 2169 of 2007

Smt. Shamim Begum & Ors. ...Appellants
Versus
Manager, National Insurance Company,
Budaun & Ors. ...Respondents

Counsel for the Appellants:
Sri C.B. Ojha, Sri M.P. Sarraf

Counsel for the Respondents:
Sri Nagendra Kumar Srivastava

A. Civil Law - Motor Vehicle Act, 1988Section 176-challenge to-claim-deceased
was an agriculturist and was having
vocation of advocacy and the tribunal
considered her income Rs. 62000 p.a. but
has not granted future loss of income-the
deceased
was
survived
by
five
dependents-Total compensation would be
Rs. 10,79,995/- and rate of interest would
be 7% -the insurance company shall
deposit the amount within period of 12
weeks.(Para 1 to 18)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Bajaj Allianz Gen. Ins. Co. Ltd. Vs Smt. Renu
Singh & ors. FAFO NO. 1818 of 2012
2. Khenyei Vs New India Assur. Co. Ltd. & ors.
(2015) LawSuit SC 469
3. Malarvizhi & ors. Vs United India Ins. Co. Ltd.
& anr. (2020) 4 SCC 228
4. United India Ins.Co. Ltd. Vs Indira Devi & ors.
(2018) 7 SCC 715
9 All. Smt. Shamim Begum & Ors. Vs. Manager, National Insurance Company, Budaun & Ors.
465
5. Oriental Ins. Co. Ltd. Vs Mangey Ram & ors.
(2019) Supreme (All) 1067
6. New India Assur. Co. Vs Urmila Shukla
MANU/SCOR/24098/2021
7. Kirti & ors. Vs Oriental Ins. Co. (2021) 1 TAC

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

1. Heard Sri Ram Singh, learned
counsel for the appellant and Ms Anubha
Gupta
assisting
Sri
N.K.
Srivastava,
learned
counsel
for
the
respondentInsurance Company. None has appeared for
the owner.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 09.04.2007 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No.13, Aligarh
(hereinafter referred to as 'Tribunal') in
M.A.C. No. 415 of 2005.

3. Brief facts as culled out from the
record are that on 25.06.2005 at 12:10 p.m
in front of Sugar Mill Sheikhpur, Furkan
Ahmad was going to Badaun by his C.D.
Don Delux motor-cycle by his side then
only a bus bearing No. U.P 24/ 4925
coming from Budaun dashed with the
motor-cycle of Furkan Ahmad. As a result
of which Furkan Ahmad died on the spot.

4. The deceased was 39 years 11
months and 25 days of age at the time of
accident. He was an agriculturist and was
having vocation of advocacy and was
earning Rs.8,000/- from his agricultural
land and Rs. 62,000/p.a from his advocacy
profession. He was survived by his mother,
widow and three minor children aged 9, 6
and 3 years. The Tribunal has considered
his income to be Rs. 62,000/-p.a, deducted
1/3rd towards personal expenses of the
deceased, granted multiplier of 16, granted
Rs.5,000/- towards consortium , granted
Rs. 2,000/- towards funeral expenses and
ultimately assessed the total compensation
to be Rs.7,53,667/-.

5. Learned counsel for the appellant
has submitted that the deceased Furkan
Ahmad was 39 years 11 months and 25
days was an advocate by profession. His
income tax report shows that his annual
income was Rs. 62,000/- per annum for
which no enhancement is claimed by the
learned counsel for the appellant but the
learned counsel for the appellant contends
that he was below the age of 50 years and
as he was himself employed professional
even in the year 2005, the tribunal should
have added 40% to his income which is
erroneous as it has not added any amount.
He has further submitted that he was
survived by his mother, wife and three
minor children aged 9,6 and 3 years and
therefore,
the
deduction
as
per
the
judgements of Sarla Verma and Pranay
Shetty and even in those days should be
1/4th and not 1/3rd. It is submitted by him
that amount of non pecuniary of Rs. 7,000/-
requires to be enhanced.

6. As against this, Ms Anubha Gupta,
advocate assisting Sri N.K. Srivastava,
learned
counsel
for
the
respondentInsurance Company contends that in the
year of accident and when the judgement
was pronounced this principle of future loss
of income was not there and according to
the counsel the multiplier adopted of 16, it
should be of 15 and that deduction of 1/3rd
from personal expenses is just and proper.
It is submitted that the appeal was
dismissed in the year 2015 and there is a
466 INDIAN LAW REPORTS ALLAHABAD SERIES
huge delay of six years in filing restoration
application and that should also be
considered by this Court while considering
quotient of interest as insurance company is
not at fault.

7. It is submitted by Ms Anubha
Gupta,
advocate
assisting
Sri
N.K.
Srivastava
that
the
quantum
of
compensation and the interest awarded by
the Tribunal is just and proper and does not
call for any interference by this Court.

9. Having heard the learned counsel
for the parties, income considered by
tribunal is Rs. 70,000/- per annum, his
income was Rs. 62,000/- p.a was his
professional income as per the documents
and the I.T return of 2002, 2003, 2004 and
2005 and his agricultural land. Let us
consider
the
negligence
from
the
perspective of the law laid down.

10. 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.

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

12. 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
9 All. Smt. Shamim Begum & Ors. Vs. Manager, National Insurance Company, Budaun & Ors.
467
conduct of driver necessarily leads to
conclusion that vehicle was being driven by
him rashly as well as negligently.

18. 10th Schedule appended to
Motor
Vehicle
Act
contain
statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. 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.

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

13. 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 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
468 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
9 All. Smt. Shamim Begum & Ors. Vs. Manager, National Insurance Company, Budaun & Ors.
469
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
proceedings after passing of the decree or
award."emphasis added

14. The latest decision of the Apex
Court
in
Khenyei
Vs.
New
India
Assurance Company Limited & Others,
2015 Law Suit (SC) 469 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. In this case the deceased
was not the author or the co-author of the
accident. Hence, the oral prayer that
deduction of 50% from the compensation
be made is rejected.

15. This takes this Court to the issue
of compensation. We would place reliance
on the Apex court decision in Malarvizhi
& Ors Vs. United India Insurance
Company Limited and Another, 2020 (4)
SCC 228 and United India Insurance Co.
Ltd. Vs. Indiro0 Devi & Ors, 2018 (7)
SCC 715. and in The Oriental Insurance
Company Ltd. Vs. Mangey Ram and
others, 2019 0 Supreme (All) 1067 and
the recent judgment of the Apex Court in
New India Assurance Company Vs.
470 INDIAN LAW REPORTS ALLAHABAD SERIES
Urmila Shukla decided by the Apex
Court
on
6.8.2021
reported
in
MANU/SCOR/24098/2021 and Kirti and
others vs oriental insurance company ltd
reported in 2021(1) TAC 1It could not be
culled out from record that on what basis,
the Tribunal has deducted the pecuniary
benefits from the income cannot be
fathomed. The income of the deceased in
the year of accident and looking to his
profession can be considered to be
Rs.70,000/- per annum as the deceased is
below 50 years, 40% as future loss of
income requires to be added in view of the
decision of the Apex Court in Pranay
Sethi (Supra). As far as amount under the
head
of
non-pecuniary
damages
are
concerned, it should be Rs.70,000/- + 10%
increase as per the decision of the Apex
Court in Pranay Sethi (Supra) as three years
have elapsed hence, the lump sum amount
under this head would be Rs.1,00,000/-. As
far as multiplier is concerned, it is 15.

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

i. Income Rs.70,000/-

ii. Percentage towards future
prospects : 40% namely Rs.28,000/-

iii. Total income : Rs. 70,000 +
28,000 = Rs.98,000/-

iv. Income after deduction of
1/3rd : Rs. 65,333/- (rounded up)

v. Multiplier applicable : 15

vi.
Loss
of
dependency:
Rs.65,334 x 15 = Rs.9,79,995/-

vii. Amount under non-pecuniary
head : 1,00,000/-

viii.Total
compensation
:
10,79,995/-

17. As far as issue of rate of interest is
concerned, it should be 7% from the date of
filing of the petition till the judgement.
From 2015-2021, the insurance company
shall not be liable to pay any interest till
restoration, thereafter it would be 7%.

18. 1 In view of the above, the appeal
is partly allowed. Oral cross are allowed
and
compensation
is
recalculated.
Judgment and award 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% 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. The Insurance Company will
deposit the entire amount can have their
right to recover the amount from owner and
the Insurance Company of the other
vehicle. As far as deceased is concerned, it
is a case of composite negligence, hence,
the amount cannot be deducted from the
compensation awarded to the claimants
who are the heirs of a non tort-feasor.

19. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291 and this
High Court in , total amount of interest,
accrued on the principal amount of
compensation is to be apportioned on
financial year to financial year basis and if
the interest payable to claimant for any
financial
year
exceeds
Rs.50,000/-,
insurance company/owner is/are entitled to
deduct appropriate amount under the head
of 'Tax Deducted at Source' as provided u/s
194A (3) (ix) of the Income Tax Act, 1961
and if the amount of interest does not
exceeds Rs.50,000/- in any financial year,
registry of this Tribunal is directed to allow
9 All. Saiyyad Azadar Husain Vs. Swami Viveka Nand Vidyashram & Anr.
471
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) and in First Appeal
From Order No.2871 of 2016 (Tej
Kumari Sharma v. Chola Mandlam M.S.
General Insurance Co. Ltd.) decided on
19.3.2021 while disbursing the amount.

20. Record be sent back to tribunal
forthwith.

21. This Court is thankful to both the
learned Advocates for getting this matter
disposed of during this pandemic.

(Ref: Civil Misc. Delay Condonation
Application)

1. Heard learned counsel for the
appellants and learned counsel for the
respondents.

2. This is an application seeking
condonation of delay in filing the recall
application.

3. Cause shown for the delay in the
affidavit attached to delay condonation
application is sufficient, hence, the delay is
condoned subject to token of cost of Rs.
500/-
to
be
deducted
from
the
compensation awarded.

4. This application, accordingly
stands allowed.

(Ref: Civil Misc. Restoration
Application)

1. This is an application seeking recall
of order dated 17.09.2015 dismissing the
appeal for want of prosecution.

2. Cause shown is sufficient and we
feel that being appeal of M.V. Act, it
requires to be restored.

3. Hence, the order dated 17.09.2015
is hereby recalled to file subject cost of Rs.
500/- as there is huge delay which should
be deducted from the compensation to be
deposited. The appeal is ordered to be
restored to its original number.

4. This application, accordingly,
stands allowed.
----------
(2021)09ILR A471
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2021

BEFORE

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

FAFO No. 2235 of 2014

Saiyyad Azadar Husain ...Appellant
Versus
Swami Viveka Nand Vidyashram & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Ram Singh, Sri Mohd. Asim Zulfiquar

Counsel for the Respondents:
Sri Dinesh Kr. Srivastava, Sri Rajeev Ojha,
Sri S.R. Verma, Sri R.K. Sharma

Enhancement of quantum of amount
awarded as compensation -income of the
deceased
wrongly
calculated-amount
enhanced -50% added under head of