# Smt. Upasana & Ors v. National Insurance Co. Ltd. & Ors

- **Citation:** (2022) 3 ILRA 873
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-11
- **Case number:** First Appeal From Order No.1070 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-upasana-ors-v-national-insurance-co-ltd-ors-48252
- **Pages:** 5

## Headnote

Civil Law - Motor Vehicle Act, 1988 -
Quantum of compensation awarded in question
- Tribunal has not granted any amount towards
future loss of income of the deceased - Registry
is directed to first deduct the amount of deficit
court fees, if any - -Insurance Company shall
874 INDIAN LAW REPORTS ALLAHABAD SERIES
deposit the amount along with additional
amount within a period of 12 - with interest at
the rate of 7.5% from the date of filing of the
claim petition till the amount is deposited.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

3 All. Smt. Upasana & Ors. Vs. National Insurance Co. Ltd. & Ors.
873
D.W.3. We have perused the oral testimony
of the driver. The driver of the bus has
categorically mentioned that the deceased
was also driving the car in rash and
negligent manner. The bus was being plied
from Agra to Bareilly. The incident
occurred at about 1.30 in the afternoon
when the bus was at Village Kheda. It is
also the case of the respondent that the
Maruti car was being driven rashly and
negligently and the Maruti car driver hit the
bus on the side of the driver. The driver
was all alone in the car. It was also
mentioned by the driver of the bus that he
had seen the care from about 200-300
meters. Looking to the facts that the bus
which is a bigger vehicle had to be more
cautious. The instantaneous death of the
driver of the car goes to show that the
vehicle driven by the respondent was being
driven in rash and negligent manner but the
driver of the car is also considered to be
negligent. The driver of the Maruti Car
died on the spot. In our case, looking to the
judgments on which reliance was placed by
the learned Trial Judge more particularly
decision in Regional Manager U.P. State
Road Transport Corporation v. Smt.
Nisha Dubey and others, 2017 (2008)
AICC 1056, the charge-sheet which was
laid against the driver of the bus and the
site plan, we hold the driver of the Maruti
Car 25% negligent. The decision in
Khenyei (Supra), will not apply to the
facts of this case.

14. As far as compensation is
concerned, there is no cross objection and
none has appeared for the claimantrespondents though notice has been served
at this juncture. We hold that that the
computation
of
the
amount
is
in
consonance with the judgment of the Apex
Court. We do not disturb the finding of the
Tribunal. However, the finding that if the
U.P.S.R.T.C. does not make payment
within 30 days then only it will be liable for
interest. Such an order could not have been
passed. We retain the interest of 7% from
the date of filing of the claim petition till
the amount is deposited. If the amount has
already been deposited, the same may be
disbursed
to
the
claimants.
On
recalculation, if the amount is on lower
side, the same shall be refunded to
U.P.S.R.T.C.

15. In view of the above, this appeal is
partly allowed. The Tribunal to recalculate
the amount and return the excess amount to
the appellant. Record and proceedings be
sent back to the Tribunal forthwith.
----------
(2022)03ILR A873
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIVEK VARMA, J.

First Appeal From Order No.1070 of 2017

Smt. Upasana & Ors. ...Appellants
Versus
National Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Nigamendra Shukla

Counsel for the Respondents:
Sri Om Prakash Mishra

Civil Law - Motor Vehicle Act, 1988 -
Quantum of compensation awarded in question
- Tribunal has not granted any amount towards
future loss of income of the deceased - Registry
is directed to first deduct the amount of deficit
court fees, if any - -Insurance Company shall
874 INDIAN LAW REPORTS ALLAHABAD SERIES
deposit the amount along with additional
amount within a period of 12 - with interest at
the rate of 7.5% from the date of filing of the
claim petition till the amount is deposited.

Appeal partly allowed. (E-9)

List of Cases cited:

1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 0 Supreme (SC) 1050
2. Saead Bashir Ahmad Vs Md. Zamil 2009 (1)
TAC 794

3. Laxmi Devi Vs Md. Tabyar 2006 (2) TAC 394

4. Vimla Devi & ors. Vs National Insurance
Comp. Ltd. & anr., (2019) 2 SCC 186

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

6. Vimal Kanwar & ors. Vs Kishore Dan & ors.,
AIR 2013 SC 3830

7. Sarla Verma Vs Delhi Transport Corporation,
(2009) 6 SCC 121

8. A.Vs 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

10. Smt. Sudesna & ors. Vs Hari Singh & anr.
Review Application No.1 of 2020 in First Appeal
From Order No.23 of 2001

11. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (S.C.)
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Vivek Varma, J.)

1. Heard Shri Nigamendra Shukla,
learned counsel for the appellants; Shri Om
Prakash Mishra, learned counsel for the
respondents; and perused the record.

2. This appeal, at the behest of the
claimants, challenges the judgment dated
4.10.2016 passed by Motor Accident
Claims Tribunal/Additional District Judge,
Court
No.15,
Ghaziabad
(hereinafter
referred to as 'Tribunal') in Motor Accident
Claim Petition No.313 of 2012 awarding a
sum of Rs.4,52,000/- with interest at the
rate of 6% as compensation.

3. The accident is not in dispute. The
issue of negligence decided by the Tribunal
is not in dispute. The respondent concerned
has not challenged the liability imposed on
them. The only issue to be decided is, the
quantum of compensation awarded.

4. It is submitted by learned counsel
for the appellants that the Tribunal has not
granted any amount towards future loss of
income of the deceased which is required to
be granted in view of the decision in
National Insurance Company Limited
Vs. Pranay Sethi and Others, 2017 0
Supreme (SC) 1050. It is further submitted
that amount under non-pecuniary heads
granted and the interest awarded by the
Tribunal are on the lower side and require
enhancement
and
learned
counsel
submitted
that
deceased
was
Senior
Technician in Moser Baer India Ltd,
Greater Noida by profession and was
getting Rs.14,512/- per month. It is also
submitted that as the deceased was
survived by his widow, two minor children,
mother and father and hence the deduction
towards personal expenses of the deceased
as 1/4 is not in dispute. The multiplier has
to be as per age of deceased should have
been granted 16 is also not in dispute.

5.

Learned
counsel
for
the
respondents, has vehemently objected the
contentions raised by the learned counsel
for the appellants and has submitted that
3 All. Smt. Upasana & Ors. Vs. National Insurance Co. Ltd. & Ors.
875
the compensation awarded by the Tribunal
is just and proper and does not call for any
enhancement.

6. Having heard learned counsel for
the parties and considered the factual data,
this Court found that the accident occurred
on 16.5.2013 causing death of Rajeev
Kumar Sharma who was 31 years of age
and left behind him, widow, two minor
children, mother and father. The Tribunal
has assessed the income of the deceased to
be Rs.3000/- per month. The deceased was
Senior Technician by profession. The
tribunal has committed grave error in not
considering that the appellants had proved
the income of the deceased by proper
evidence. The witness was also examined
so as to bring whom the contention that the
deceased was a Senior Technician. The
documentary evidence showing the income
starts from Ex.40, PW-2 Raj Kumar Singh
who is the Manager, Baer India Ltd. has
been examined and he has also conveyed
the income. The Tribunal has hyper
technical stand in relying on the judgment
of Saead Bashir Ahmad v. Md. Zamil 2009
(1) TAC 794 and thereafter has gone to
decide the matter on the basis of the
decision of the Apex Court in Laxmi Devi
v. Md. Tabyar 2006 (2) TAC 394 and
decide that he was earning Rs.3000/- p.m..
This is again fallacious as the documentary
evidence on record just because the original
was not brought. The evidence of the
witnesses has not been accepted which is
also against the Judgment in the case of the
Apex Court in Vimla Devi and others Vs.
National Insurance Company Limited and
another, (2019) 2 SCC 186, and, therefore,
we are obliged to hold that the deceased
died due to the accidental injuries.

7. The judgment of the Apex Court in
Anita Sharma v. New India Assurance
Co. Ltd. (2021), 1 SCC 171 would also
apply to the facts of this case.

8. As far as beneficial difference of
limitation is concerned, the strict rules of
civil procedure and evidence act are no
required to adhered to.

9. In our case, prima facie it was
proved that his income was Rs.14,512/- out
of certain amounts were deducted and he
was getting Rs.13,020/-. In view of the
judgment of Vimal Kanwar and others v.
Kishore Dan and others, AIR 2013 SC
3830 except income Tax no amount could
have been deducted by the tribunal in the
year of question, i.e., 2012, his income was
below taxable income and hence we will
have to consider his income Rs.14,500/-
per month. The tribunal cannot take a stand
that as the officer who was examined had
not brought the original records, his
evidence is totally unbelievable. The
tribunal has erred itself in not considering
the income of the deceased and has
deducted amount which it could not deduct
holding that they were personal benefits to
the deceased. We cannot concur with the
tribunal as far as holding that the deceased
was earning Rs.3000/- per month. The
income has to be considered to be
Rs.14,500/- per month, would be the
income of the deceased. The deceased was
below the age of 40 years as Senior
Technician, 50% of the income will have to
be added as future prospects in view of the
decision of the Apex Court in National
Insurance Company Limited Vs. Pranay
Sethi and Others, 2017 0 Supreme (SC)
1050. The multiplier of 16 granted is just
and proper as per the judgment in Pranay
Sethi (supra) where awarded sum of
Rs.70,000+10% increase, we round up the
same figure Rs.1,00,000/- instead of
Rs.91,000/-.
876 INDIAN LAW REPORTS ALLAHABAD SERIES

10. In this backdrop were evaluate the
income in view of the judgment of
National Insurance Company Limited
Vs. Pranay Sethi and Others, 2017 0
Supreme (SC) 1050 and Sarla Verma Vs.
Delhi Transport Corporation, (2009) 6
SCC 121 and, the recalculation of
compensation would be as follows:

i. Income Rs.14,500/- p.m.

ii. Percentage towards future
prospects : 50% namely Rs.7250/-

iii. Total income : Rs. 14,500 +
7,250 = Rs.21,750/-

iv. Income after deduction of 1/4
: Rs.16,313/-

v. Annual income : Rs.16,313 x
12 = Rs.1,95,750/-

vi. Multiplier applicable : 16 (as
the deceased was in the age bracket of 3135 years)

vii.
Loss
of
dependency:
Rs.1,95,750 x 16 = Rs.31,32,000/-

viii. Amount under non pecuniary
heads (Rs.70,000+30,000) = 1,00,000/-

ix.
Total
compensation
:
Rs.32,32,000/-.

11. 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.

12. 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.

13. 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
3 All. Smt. Rani @ Raj Kumari & Ors. Vs. Kamlakat Gupta & Ors.
877
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."

14. 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 respondentInsurance Company shall 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. The amount already
deposited be deducted from the amount to
be deposited.

15. We are thankful to learned
counsels for the parties for ably assisted the
Court.

16. Record be sent back to court below
forthwith, if any.

17. We are thankful to learned
counsels for the parties for ably assisted the
Court.
----------
(2022)03ILR A877
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2021

BEFORE

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

First Appeal From Order No. 1493 of 2013

Smt. Rani @ Raj Kumari & Ors.
 ...Appellants
Versus
Kamlakat Gupta & Ors. ...Respondents

Counsel for the Appellants:
Sri A.K. Ojha, Sri Harish Chandra Mishra

Counsel for the Respondents:
Sri Rahul Sahai, Sri Harish Chandra Mishra,
Sri Rahul Sahai, Sri Om Prakash Tripathi

Civil Law - Motor Vehicle Act, 1988 -
Principle of Contributory negligence-age of
deceased-35 years-deduction of 1⁄4-amount of
non-pecuniary damages be 70,000/-multiplier
be 15- Judgment and award passed by the
Tribunal modified.

Appeal partly allowed. (E-9)
List of Cases cited:

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

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

3. T.O. Anthony Vs Karvarnan & ors. [2008 (3)
SCC 748]

4. Malarvizhi & ors. Vs United India Insurance
Co. Ltd. & anr., 2020 (4) SCC 228

5. United India Insurance Co. Ltd. Vs Indiro Devi
& ors. 2018 (7) SCC 715

6. The Oriental Insurance Co. Ltd. Vs Mangey
Ram & ors., 2019 0 Supreme (All) 1067

7. New India Assurance Co. Vs Urmila Shukla
decided by the Apex Court on 6.8.2021 reported
in MANU/SCOR/24098/2021

8. Kirti & ors. Vs Oriental Insurance Co. Ltd.
reported in 2021(1) TAC

9. Sarla Verma & ors.Vs Delhi Transport Corp. &
anr., 2009, Law Suit (SC) 613

10. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Comp. Ltd., reported in 2007(2) GLH
291