# Smt. Sonia Gupta & Ors v. Ashok Kumar & Ors. 902 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 6 ILRA 901
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-26
- **Case number:** First Appeal From Order No. 3509 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sonia-gupta-ors-v-ashok-kumar-ors-902-indian-law-reports-allahabad-series-48672
- **Pages:** 10

## Headnote

A. Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 173 - Motor Accident claim
- deceased was driving Maruti Wagon-R
car which dashed with the truck - it was
head on collision - tribunal deducted 40%
towards the contributory negligence of
the deceased - Held - truck driver did not
appear before the tribunal - from the site
plan it appears that the accident occurred
almost on the middle of the road -
therefore there was negligence of the
driver of the Maruti Wagon-R car also -
driver of the Maruti Wagon-R contributed
to 25% of the accident (Para 15)

B. Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 173 - Motor Accident
claim - Quantum of compensation -
Deceased was 35 years of the age at the
time
of
accident
and
was
running
computer centre - Deceased I.T.R of the
year 2003-2004 showed his income was
Rs. 83,573/- p.a out of which he paid
approximately Rs. 3000/- as income tax -
Held - income of the deceased in the year
of accident & looking to his profession can
be considered to be Rs. 80000 per annum
- tribunal has not added any amount
under the head of future loss of income
which is fallacious - Deceased was below
the age of 40 years and as per U.P. rules
court added 40% as he was self employed
- Deceased had a widow and two minor
daughters
deduction
of
1/3rd
is
maintained, multiplier of 16 granted by
the tribunal is maintained and to that sum
of Rs. 70,000/- + Rs. 50,000/- each to the
minor daughters who have lost their
father at a tender age - Interst should be
7.5 % (Page 16)

Allowed. (E-5)

List of Cases cited:

## Text

6 All. Smt. Sonia Gupta & Ors. Vs. Ashok Kumar & Ors.
901
Company
Limited
Vs.
Chief
Commissioner of Income Tax ( TDS) ,
R/Special Civil Application No. 4800 of
2021 decided on 5.4.2022 held that interest
awarded by the Tribunal under Section 171
of Motor Vehicles Act is not taxable under
the Income Tax Act, 1961.

16. 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 20 years have
elapsed, the amount be deposited in the
Saving Account of claimants in Nationalized
Bank without F.D.R.

17. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagauri 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.

18.

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.

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. With the aforesaid observations
the appeal is allowed partly.

21. This Court is thankful to the
counsel for both sides for getting this
matter decided.
----------
(2022)06ILR A901
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.04.2022

BEFORE

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

First Appeal From Order No. 3509 of 2007

Smt. Sonia Gupta & Ors. ...Appellants
Versus
Ashok Kumar & Ors. ...Respondents
902 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Sumit Daga

Counsel for the Respondents:
Sri Saurabh Srivastava

A. Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 173 - Motor Accident claim
- deceased was driving Maruti Wagon-R
car which dashed with the truck - it was
head on collision - tribunal deducted 40%
towards the contributory negligence of
the deceased - Held - truck driver did not
appear before the tribunal - from the site
plan it appears that the accident occurred
almost on the middle of the road -
therefore there was negligence of the
driver of the Maruti Wagon-R car also -
driver of the Maruti Wagon-R contributed
to 25% of the accident (Para 15)

B. Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 173 - Motor Accident
claim - Quantum of compensation -
Deceased was 35 years of the age at the
time
of
accident
and
was
running
computer centre - Deceased I.T.R of the
year 2003-2004 showed his income was
Rs. 83,573/- p.a out of which he paid
approximately Rs. 3000/- as income tax -
Held - income of the deceased in the year
of accident & looking to his profession can
be considered to be Rs. 80000 per annum
- tribunal has not added any amount
under the head of future loss of income
which is fallacious - Deceased was below
the age of 40 years and as per U.P. rules
court added 40% as he was self employed
- Deceased had a widow and two minor
daughters
deduction
of
1/3rd
is
maintained, multiplier of 16 granted by
the tribunal is maintained and to that sum
of Rs. 70,000/- + Rs. 50,000/- each to the
minor daughters who have lost their
father at a tender age - Interst should be
7.5 % (Page 16)

Allowed. (E-5)

List of Cases cited:

1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 0 Supreme (SC) 105

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

3. Uttar Pradesh Rajya Sadak Parivahan Nigam
Vs Smt. Anamika Deo (died) & ors., 2022 (4)
ADJ 570 (DB)

4. Gobald Motor Service Ltd. & anr. Vs R.M.K
Veluswami & ors. [1962 SCR (1) 929]

5. General Manager, Kerala State Road
Transport Corp., Trivandrum Vs Susamma
Thomas & ors. (1994) 2 SCC 176

6. U.P.S.R.T.C. Vs Trilok Chand, 1996 T.A.C. (2)
286

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

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

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

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

1. Heard Sri Sumit Daga, learned
counsel for the appellants and Sri Saurabh
Srivastava,
learned
counsel
for
the
respondent no.2-United India Insurance
Company.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 25.08.2007 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge, Muzaffarnagar (hereinafter
referred to as 'Tribunal') in M.A.C. P. No.
338 of 2004.
6 All. Smt. Sonia Gupta & Ors. Vs. Ashok Kumar & Ors.
903

3. Brief facts of the case are that on
5.2.2004 the deceased-Kapil Gupta was
going from Khatauli to Haridwar by
Wagon-R Car bearing registration no.
U.B.P.-8386 which was being driven by
deceased-Kapil Gupta. At about 8.00 a.m.
when he reached near Wine shop of village
Badhedi, under Chapaar Police Station
District Muzaffarnagar, driver of a truck
coming from Roorkee bearing registration
no. U.H.N. 470, driving the truck rashly
and negligently dashed into the Wagon-R
car as a result of which Kapil Gupta died
on the spot and the Wagon-R car entirely
got damaged.

4. Deceased-Kamal Arora was 35
years of the age at the time of accident and
was running computer centre and was
earning
Rs.83,573/-
annually.
The
deceased-Kapil Gupta was survived by his
widow and two minor daughters. The
Tribunal has considered his income to be
Rs.75,000/- per annum, deducted Rs.
25,000/- towards personal expenses of the
deceased, granted multiplier of 16, granted
Rs.9,500/- under non-pecuniary heads and
ultimately assessed the total compensation
to be Rs.8,09,500/-. The Tribunal held the
deceased-Kapil Gupta who was driving the
Car negligent to the tune of 40% deducted
the amount of compensation to the tune of
40%. The claimants were therefore granted
amount of Rs.4,89,500/- as compensation
with interest at the rate of 5%.

5. It is submitted by learned counsel
for the appellants that the Tribunal has
fallen in error in holding the deceased
negligent to the tune of 40%. It is submitted
that the Tribunal has failed to consider the
evidence on record which proves that the
accident in question was caused due to rash
and negligent driving of the driver of truck
No. U.H.N 470 and that the Tribunal has
failed to consider the pleadings as well as
evidence which clearly establish that the
deceased was driving car carefully and
cautiously.

6. It is further submitted by learned
counsel for the appellants that the accident
occurred on 05.02.2004 claiming the life of
Kapil Gupta who was 35 years and was
running a computer centre and was a
income tax payer. His I.T.R of the year
2003-2004 showed his income was Rs.
83,573/- p.a out of which he has paid
approximately Rs. 3000/- as income tax
and therefore it is submitted that his income
to be considered as Rs. 80,000/- p.a. The
Tribunal did not grant any amount for
future loss of income of the deceased and
also the amount awarded under nonpecuniary heads granted by the Tribunal is
on the lower side and should be enhanced
in view of the the decision of the Apex
Court in National Insurance Company
Limited Vs. Pranay Sethi and Others,
2017 0 Supreme (SC) 105. Lastly, learned
counsel for the appellant has submitted that
the interest as awarded by the Tribunal is
on the lower side and requires to be
enhanced.

7. As against this, Sri Saurabh
Srivastava,
learned
counsel
for
the
respondent-Insurance Company submits
that as far as the issue of negligence is
concerned, the Tribunal has rightly held the
deceased negligent to the tune of 40% as
the car dashed with the truck and it was
head on collision and therefore, it cannot be
said that the driver of the truck was solely
negligent.

8. It is further submitted by Sri
Saurabh Srivastava, learned counsel for the
respondent-Insurance Company that the
quantum of compensation and the interest
awarded by the Tribunal is just and proper
904 INDIAN LAW REPORTS ALLAHABAD SERIES
and does not call for any interference by
this Court.

9. Having heard the learned counsel
for the parties, 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 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.

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
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
6 All. Smt. Sonia Gupta & Ors. Vs. Ashok Kumar & Ors.
905
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

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
906 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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,
6 All. Smt. Sonia Gupta & Ors. Vs. Ashok Kumar & Ors.
907
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
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
908 INDIAN LAW REPORTS ALLAHABAD SERIES
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 (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.

15. The tribunal has considered that
the deceased who was driving Maruti
Wagon-R car which dashed with the truck
and it was head on collision and therefore
40% was deducted to be the contributory
negligence of the deceased. We redecide
the issue of negligence. Sri Sumit Daga,
learned counsel for the appellants has
placed reliance on the judgement of this
High Court in Uttar Pradesh Rajya
Sadak
Parivahan
Nigam
Vs.
Smt.
Anamika Deo (died) and others, 2022 (4)
ADJ 570 (DB) and has contended that even
this Court consideres that the driver namely
the deceased had contributed to the
accident. It won't be 40% as 40% cannot be
considered to be rash and negligent driving
of the deceased. The charge-sheet was laid
against the driver of the truck. The truck
driver did not appear before the tribunal,
however, from the site plan it appears that
the accident occurred almost on the middle
of the road and therefore, we are in
agreement with the submission of the Sri
Saurabh Srivastava, learned counsel for the
respondent no. 2 that it cannot be accepted
that there was no negligence of the driver
of the Maruti Wagon-R car. We hold the
driver of the Maruti Wagon-R who
contributed to 25% of the accident.

16. This takes this Court to the issue
of compensation. The income of the
deceased in the year of accident and
looking to his profession it can be
considered to be Rs.80,000/- per annum.
The tribunal has not added any amount
under the head of future loss of income
which is again fallacious as the judgment of
the Apex Court in Gobald Motor Service
Ltd. and another Vs. R.M.K Veluswami
and other [1962 SCR (1) 929] and
General Manager, Kerala State Road
Transport Corporation, Trivandrum Vs.
Susamma Thomas and others (1994) 2
SCC 176 which was followed by the
judgement
of
the
Apex
Court
in
U.P.S.R.T.C. Vs. Trilok Chand, 1996
T.A.C. (2) 286 and therefore taking the
thumb rule of Pranay Sethi (Supra) as he
was below the age of 40 years ans as per
U.P. rules, we add 40% as he was self
employed. As he had a widow and two
minor daughters deduction of 1/3rd is
maintained, multiplier of 16 granted by the
tribunal is maintained and to that sum of
Rs. 70,000/- + Rs. 50,000/- each to the
minor daughters who have lost their father
at a tender age.

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

i. Annual Income Rs.80,000/- (as
decided by the Tribunal)

ii. Percentage towards future
prospects : 40% namely Rs.32,000/-
6 All. Smt. Sonia Gupta & Ors. Vs. Ashok Kumar & Ors.
909

iii. Total income : Rs. 80,000 +
32,000 = Rs.1,12,000/-

iv. Income after deduction of
1/3rd : Rs.74,667/- (rounded of)

vi. Multiplier applicable : 16

vii.
Loss
of
dependency:
Rs.74,667 x 16 = Rs.11,94,672/-

viii. Amount under non-pecuniary
head : 70,000/- + Rs. 1,00,000/-(Rs.
50,000/- each to two minor daughters)

ix.
Total
compensation
:
13,64,672/-

x.
Compensation
payable
to
claimants
after
deductions
of
25%
negligence on the part of the deceased :
10,23,504/-

18. 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."

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

20. In view of the above, the appeal is
partly allowed. 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 7.5% 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.

21. 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.

22. 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
910 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

23.

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.
----------
(2022)06ILR A910
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2022

BEFORE

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

First Appeal From Order No. 4097 of 2017

Smt. Kusuma Devi & Ors. ...Appellants
Versus
Shrawan Kumar Mishra & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Vidya Kant Shukla, Sri Shravan Kumar
Pandey, Sri Shyam Narain Pandey

Counsel for the Respondents:
Sri Pawan Kumar Singh

(A) Civil Law - Motor Vehicles Act, 1988,
Section -166- Appeal - compensation -
Contributory negligence - motorcycle of the
deceased hit the truck from behind due to
truck driver pushed his break all of sudden -
In absence of discharging the burden to
prove that truck driver was not negligent -
the finding of tribunal towards contributory
negligence to the extent of 45% attributed
to the deceased and 55% to the truck driver
is maintained. (Para 14)

(B) Civil Law - Motor Vehicles Act, 1988,
Section 166, - U.P. Motor Vehicles Rules,
1998,
Rules
220
-
Compensation
-
Quantum of compensation - Form 16 is
authentic document for the purpose of
computation of the salary of deceased -
Multiplier of 9 should be applied instead of
8 as per law lay down in Sarla Verma'a &
Pranay Sethi' case - 25% of income ought
to be added towards future loss of income
including
Rs.
1
lacks
towards
nonpecuniary
damages
-
Compensation
computed and awarded accordingly. (Para
117, 21, 26, 31, 32, 34)

Appeal is partly allowed. (E-11)

List of Cases cited: -

1. Nishan Singh & ors. Vs Oriental Insurance
Company Limited & ors., 2018 vol. 6 SCC 765

2. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. (FAFO No. 1818/2012
Decided on Dt. 19.07.2016)

3. Archit Saini & anr. Vs Oriental Insurance
Comp. Ltd., AIR 2018 SC 1143

4. Vimal Kanwar & ors. v. Kishore Dan & ors.,
2013 (3) T.A.C. 6 (SC)

5. Sarla Verma & ors. v. Delhi Transport Corp. &
anr., 2009 LawSuit (SC)

6. National Insurance Company Limited Vs Pranay
Sethi & ors., 2017 vol. 0 Supreme (SC) 105

7. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (Supreme court)

8. Smt. Hansa Gauri P. Ladhani Vs The Oriental
Insurance Comp. Ltd. (2007 vol. 2 GLH 291)