# Smt. Sita Rai & Ors v. The NIACL, Ghazipur & Ors

- **Citation:** (2021) 11 ILRA 872
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-08
- **Case number:** First Appeal From Order No. 3065 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sita-rai-ors-v-the-niacl-ghazipur-ors-46665
- **Pages:** 5

## Headnote

Civil Law - Accidental Death - Motor Accident
Claim - Motor Vehicles Act ,1988 - Section 168
- Uttar Pradesh Motor Vehicles Rules, 1988 -
Enhancement of Compensation - deceased
below the age of 60 years & was in permanent
job, survived by two major sons & father - net
income of the deceased, after the deduction of
income tax, was Rs.7,49,562/- per annum, as
per ITR for the year in which accident took
place - Tribunal illegally held that since
deceased was to retire in near future so his
income should be considered at Rs.3,000 per
month - future loss of income - in view of 1988
Rules court granted 15% addition towards
future loss of income as the deceased was
below the age of 60 years and was in
permanent job - deductions towards personal
expenses
-
deductions
towards
personal
expenses would be 1/2 as the deceased was
survived by two major sons & father who
cannot be considered to be dependent upon the
deceased - Pension - pension cannot be
deducted from the amount admissible to the
legal heirs - Multiplier - multiplier would be 9
as the deceased was in the age bracket of 5660 on the date of accident - non-pecuniary
damages - amount under the head of nonpecuniary damages Rs. 70,000/- + 10%
increase in every three years - Court granted
grant Rs. 80,000/- under the head of non
pecuniary damages - Total compensation of
Rs.39,59,000/- awarded with - Insurance
Company directed to deposit the amount
within a period of 12 weeks with interest at the
rate of 7.5% from the date of filing of the claim
petition till the amount is deposited - order of
investment was not passed because applicants
/claimants are neither illiterate or rustic
villagers - total amount of interest, accrued on
the principal amount of compensation is to be
apportioned on financial year to financial year
basis - if 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 (Para 10, 11, 13, 14, 19)

Allowed. (E-5)

List of Cases cited :

## Text

872 INDIAN LAW REPORTS ALLAHABAD SERIES
State shall follow the direction of this Court as
herein aforementioned as far as disbursement is
concerned, it should look into the condition of
the litigant and the pendency of the matter and
not blindly apply the judgment of A.V. Padma
(supra). The same is to be applied looking to the
facts of each case.

22. Record be sent back to the Tribunal.
----------
(2021)11ILR A872
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2021

BEFORE

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

First Appeal From Order No. 3065 of 2013

Smt. Sita Rai & Ors. ...Appellants
Versus
The NIACL, Ghazipur & Ors. ...Respondents

Counsel for the Appellants:
Sri Satya Prakash Pandey, Sri Shashi Kant
Shukla

Counsel for the Respondents:
Sri Nishant Mehrotra

Civil Law - Accidental Death - Motor Accident
Claim - Motor Vehicles Act ,1988 - Section 168
- Uttar Pradesh Motor Vehicles Rules, 1988 -
Enhancement of Compensation - deceased
below the age of 60 years & was in permanent
job, survived by two major sons & father - net
income of the deceased, after the deduction of
income tax, was Rs.7,49,562/- per annum, as
per ITR for the year in which accident took
place - Tribunal illegally held that since
deceased was to retire in near future so his
income should be considered at Rs.3,000 per
month - future loss of income - in view of 1988
Rules court granted 15% addition towards
future loss of income as the deceased was
below the age of 60 years and was in
permanent job - deductions towards personal
expenses
-
deductions
towards
personal
expenses would be 1/2 as the deceased was
survived by two major sons & father who
cannot be considered to be dependent upon the
deceased - Pension - pension cannot be
deducted from the amount admissible to the
legal heirs - Multiplier - multiplier would be 9
as the deceased was in the age bracket of 5660 on the date of accident - non-pecuniary
damages - amount under the head of nonpecuniary damages Rs. 70,000/- + 10%
increase in every three years - Court granted
grant Rs. 80,000/- under the head of non
pecuniary damages - Total compensation of
Rs.39,59,000/- awarded with - Insurance
Company directed to deposit the amount
within a period of 12 weeks with interest at the
rate of 7.5% from the date of filing of the claim
petition till the amount is deposited - order of
investment was not passed because applicants
/claimants are neither illiterate or rustic
villagers - total amount of interest, accrued on
the principal amount of compensation is to be
apportioned on financial year to financial year
basis - if 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 (Para 10, 11, 13, 14, 19)

Allowed. (E-5)

List of Cases cited :

1. Vimal Kanwar & ors. Vs. Kishore Dan & ors., (2013)
7 SCC 476

2. Rajesh Singh & anr. Vs. Margub Ali & ors. First
Appeal From Order No.3010 of 2014 decided on
27.9.2021

3. Sarla Verma & ors. Vs. Delhi Transport Corporation
& anr., 2009 LawSuit (SC) 613

4. National Insurance Company Limited Vs. Pranay
Sethi & ors., 2017 0 Supreme (SC) 1050

5. Smt. Parvati @ Baby & ors. Vs. Hollu Hallappa,
1999 ACJ 344

6. Subhadra Pandey Vs. Siddarth Agrawal First Appeal
From Order No.1237 of 2018 decided on 7.12.2020
11 All. Smt. Sita Rai & Ors. Vs. The NIACL, Ghazipur & Ors.
873
7. National Insurance Co. Ltd. Vs. Mannat Johal &
ors., 2019 (2) T.A.C. 705 (S.C.)

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

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

1. Heard Sri Shashi Kant Shukla, learned
Advocate assisted by Sri Satya Prakash Pandey,
learned counsel for the appellant and Sri Nishant
Mehrotra, learned counsel for respondentInsurance Company.

2. By way of this appeal, the claimants
have challenged the judgment and award dated
29.7.2013 passed by Motor Accident Claims
Tribunal/Special Judge (SC/ST Act) Ghazipur
(hereinafter
referred
to
as
'Tribunal')
in
M.A.C.P. No.26 of 2011 awarding sum of
Rs.3,26,440/- as compensation to the claimants
with interest at the rate of 6%.

3. We have not gone into the factual data
except as important for our purpose namely
compensation awarded. The accident is not in
dispute. The deceased died out of accidental
injuries is not in dispute. The Insurance
Company has not challenged the liability
imposed on them. Hence, the dispute involved in
this appeal relates to the correctness in the
calculation of compensation payable to the
claimants. The details of facts except for
deciding compensation are not narrated.

4. It is submitted by learned counsel for the
appellants that the Tribunal has committed grave
error in considering the income of the deceased
who was a salaried person aged 59 years which
is evident from the record. Learned counsel for
the appellant has submitted that the net income
of the deceased was Rs.7,49,562/- per annum
which was after the deduction of income tax.

5. Learned counsel for the appellants has
submitted that pension should not have been
deducted from the compensation to be paid to
the legal heirs of the deceased and has relied on
the decisions in Vimal Kanwar and Others Vs.
Kishore Dan and others, (2013) 7 SCC 476
and decision of this Court in First Appeal From
Order No.3010 of 2014 (Rajesh Singh and
Another Vs. Margub Ali and Others), decided
on 27.9.2021.

6. It is further submitted that the Tribunal
has not granted any amount under the head of
future loss of income which should be granted in
view of the decisions of the Apex Court in Sarla
Verma and others Vs. Delhi Transport
Corporation and Another, 2009 LawSuit (SC)
613
and
National
Insurance
Company
Limited Vs. Pranay Sethi and Others, 2017 0
Supreme (SC) 1050.

7. The next contention is that the multiplier
of 5 granted by the Tribunal is bad and it should
be 9 in view of the decision of the Apex Court in
Sarla Verma (Supra) as the deceased was in
the age bracket of 56-60 years. It is submitted by
learned counsel for the appellants that the
tribunal has granted only 10,000/- under the
head of non-pecuniary damages which requires
enhancement in view of the decision of the Apex
Court in Pranay Sethi (Supra). It is also
submitted by learned counsel for the appellants
that the interest awarded by the Tribunal is on
the lower side and requires to be enhanced.
Learned counsel for the appellant has submitted
that deduction towards personal expenses of the
deceased should be 1/4th.

8. Sri Nishant Mehrotra, learned counsel
for the respondent-Insurance Company has
submitted that Tribunal has not committed any
error and that pension is paid to the widow who
has also now passed away cannot be considered
to be loss to the estate. It is further submitted by
learned counsel for the respondent that the
874 INDIAN LAW REPORTS ALLAHABAD SERIES
multiplier granted by the Tribunal and the
compensation awarded by the Tribunal does not
warrant any change.

9. It is also submitted by learned counsel for
the respondent that the deductions towards
personal expenses of the deceased would be 1/2 as
the deceased was survived by two major sons and
father who are not the dependent on the deceased.
The widow also passed away during the pendency
of the appeal.

10. Having heard the arguments advanced by
learned counsel for the parties, we accepts the
submission of learned counsel for the appellant as
far as income of the deceased is concerned. The
income of the deceased was Rs. 7,49,562/- after
the deduction of income tax as the per the Income
Tax Return for the year in which the accident took
place. The decision in Vimal Kanwar (Supra)
does not permit us to accept the finding of the
Tribunal as far as income is concerned as the
Tribunal held that the deceased was to retire in
near future so his income should be considered at
Rs.3,000/- per month. Therefore, we consider the
income of the deceased to be Rs.7,49.562/- which
we round up to Rs.7,50,000/- per annum.

11. As far as future loss of income is
concerned, in view of Uttar Pradesh Motor
Vehicles Rules, 1988, we grant 15% addition
towards future loss of income as the deceased was
below the age of 60 years and was in permanent
job.

12. We would hasten to fall back on the
decision in Smt. Parvati @ Baby and Others Vs.
Hollu Hallappa, 1999 ACJ 344 & decision of this
Court in First Appeal From Order No.1237 of
2018 (Subhadra Pandey Vs. Siddarth Agrawal)
decided on 7.12.2020 wherein it has been
categorically held that pension cannot be deducted
from the amount admissible to the legal heirs.

13. We are unable to accept the submission
of learned counsel for the respondent that the
multiplier is just and proper. It would be 9 in
view of decision in Sarla Verma (Supra) as the
deceased was in the age bracket of 56-60, even
if we take the age of the deceased on the date of
accident. As far as amount under the head of
non-pecuniary damages are concerned, it should
be Rs.70,000/- + 10% increase in every three
years in view of the decision of the Apex Court
in Pranay Sethi (Supra). Therefore, we would
grant Rs.80,000/- under the head of non
pecuniary damages.

14. After correcting the manuscripts, we
find that sons of the deceased were major even
at the time of accident and they cannot be
considered dependent upon the deceased. We are
in agreement with learned counsel for the
respondent. The widow of the deceased has
passed away. Both the sons of the deceased was
major at the time of accident. The father cannot
be said to be dependent as per Motor Vehicles
Act, hence, 1/2 has to be deducted as personal
expences of the deceased.

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

i. Annual Income : Rs.7,50,000/-

ii. Percentage towards future prospects
: 15% namely Rs.1,12,500/-

iii. Total income : Rs. 7,50,000 +
1,12,500 = Rs.8,62,500/-

iv. Income after deduction of 1/2
towards personal expenses of the deceased :
Rs.4,31,000/- (round figure)

v. Multiplier applicable : 9

vi. Loss of dependency: Rs.4,31,000 x
9 = Rs.38,79,000/-

vii. Amount under non pecuniary
damages : Rs.80,000/-

viii. Total compensation : 39,59,000/-
11 All. Smt. Sita Rai & Ors. Vs. The NIACL, Ghazipur & Ors.
875

16. 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."

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

18. In view of the above, the appeal is
partly allowed. Judgment and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The 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.
The Insurance Company has been given
recovery right by the Tribunal. We do not
disturb the same as the owner of truck is not
before us.

19. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of investment
is not passed because applicants /claimants
are neither illiterate or rustic villagers.

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

21. Fresh Award be drawn accordingly
in the above petition by the tribunal as per
the modification made herein. The Tribunals
in the State shall follow the direction of this
Court as herein aforementioned as far as
disbursement is concerned, it should look
into the condition of the litigant and the
pendency of the matter and judgment of
A.V. Padma (supra). The same is to be
applied looking to the facts of each case.

22. Record and proceedings be sent to
the Tribunal.
----------
876 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)11ILR A876
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

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

First Appeal From Order No. 3264 of 2014

Girish Kumar Gupta ...Appellant
Versus
Brijesh Tyagi & Ors. ...Respondents

Counsel for the Appellant:
Sri K.P. Pandey, Sri K.C. Pandey

Counsel for the Respondents:
Sri Nagendra Kr. Srivastava, Sri Saral Srivastava,
Sri V.K. Maurya, Sri V.K. Maurya

Civil Law - Accidental Injury - Motor Accident
Claim - Motor Vehicles Act ,1988 - Section 166 -
appellant a policeman sustained grievous head
injury, when a motorcycle dashed him from
behind, accident occurred near police station -
Claim petition dismissed as F.I.R. was lodged on
next day - Held - claim petition cannot be
dismissed just because there is delay in lodgment
of the F.I.R. by one day - involvement of vehicle
proved as charge sheet laid - Tribunal committed
an error in not considering the fact that the doctor
opined that the injured was under his treatment
since the date which was mentioned in the F.I.R.
and the claim petition - Driver of vehicle present
at place of accident and he himself accepted that
he had gone to bus stand to drop somebody -
Matter remitted to Tribunal to decide quantum.

Allowed. (E-5)

List of Cases cited:

1. Anita Sharma & ors. Vs The New India Assurance
Company Ltd. & anr. 2020 0 Supreme (SC) 704

2. Mangla Ram Vs Oriental Insurance Co. Ltd. & ors.,
2018 5 SCC 656
3. Jai Prakash Vs National Insurance Com. Ltd. 2010
(2) GLR 1787

4. Anil Vs National Insurance Company reported in
2018 ACJ 729

5. Parmeshwari Vs Amir Chand, (2011) 11 SCC 635

6. Sunita & ors. Vs Rajasthan State Road Transport
Corporation, AIR 2019 SC 994

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

1. Heard learned counsel for the parties.

2. This appeal challenges the Judgment and
order dated 31.3.2014 passed by Motor Accident
Claim Tribunal/Additional District Judge, Room
No.6, Ghaziabad (hereinafter referred to as the
Tribunal) in Motor Accident Claim Petition No.
570 of 2011, Girish Kumar Gupta Vs. Brijesh
Tyagi and others.

3. The Tribunal has dismissed the claim
petition filed by the appellant herein, who had
sustained grievous head injury. The claimant
filed the claim petition alleging that on 9.6.2011
when he along with his wife Prabha Gupta were
moving on their feet on their correct side and
when they reached in front of old bus-stand
Ghaziabad near over bridge at about 9.30 am, a
young boy driving a Pulsar motorcycle bearing
Registration No. UP 14 AE 3202 rashly and
negligently came and dashed the claimant from
behind.

4. At the time of accident, the claimant
aged about 55 years was an ASI posted at Police
Department
whose
monthly
income
was
Rs.34,850/-. The F.I.R. was lodged as Crime No.
752 of 2011. The claimant, when filed the
petition, was in coma. Dr. Atul Gupta, who was
attached with Yashoda Hospital, Ghaziabad