# Smt. Vinita Kesarwani & Ors v. The Oriental Insurance Co. Ltd. & Anr

- **Citation:** (2022) 5 ILRA 661
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-01
- **Case number:** First Appeal From Order No. 316 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vinita-kesarwani-ors-v-the-oriental-insurance-co-ltd-anr-48570
- **Pages:** 9

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Negligence - on the intervening night of
7/8.3.1998 at 00.30 am truck being driven
rashly and negligently dashed the Maruti
Car
coming
from
opposite
direction
causing instantaneous death of driver of
Maruti car- Deceased was 39 years of the
age at the time of accident, was doing
wholesale trading in fruits and was
earning Rs.20,000/- per month - deceased
was survived by his widow, two minor
children and mother - Held - there was a
head on collision between car and the
truck - Tribunal rightly held the deceased
negligent to the tune of 50% - Deceased
income in the Income Tax Return was Rs.
1,20,000, the income of the deceased
would be considered to be Rs.1,20,000 per
annum - as per postmortem report, the
deceased was 40 years of age, hence,
addition towards future loss of income
would be 25% - accident took place in the
year 1998, the deceased was survived by
two minor children and widow Court
awarded Rs.50,000/- to the widow and
Rs.40,000/- each to the minor children -
rate of interest should be 3% from the
date of filing of the claim petition till the
amount if deposited and till then 6% if the
same has not been paid along with
interest (Para 14, 15, 16, 18, 20)
662 INDIAN LAW REPORTS ALLAHABAD SERIES
Allowed. (E-5)

List of Cases cited:

## Text

5 All. Smt. Vinita Kesarwani & Ors. Vs. The Oriental Insurance Co. Ltd. & Anr.
661
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."

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

23. 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 with interest at the rate of 7.5%
from the date of filing of the claim petition
till the amount is deposited within a period
of 12 weeks from today. The amount
already deposited be deducted from the
amount to be deposited.

24.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein.
----------
(2022)05ILR A661
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2022

BEFORE

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

First Appeal From Order No. 316 of 2012

Smt. Vinita Kesarwani & Ors. ...Appellant
Versus
The Oriental Insurance Co. Ltd. & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Neeraj Singh, Sri Sharve Singh

Counsel for the Respondents:
Sri Ashok Kumar Jaiswal, Sri S.N. Mishra,
Sri Siddharth Jaiswal

Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Negligence - on the intervening night of
7/8.3.1998 at 00.30 am truck being driven
rashly and negligently dashed the Maruti
Car
coming
from
opposite
direction
causing instantaneous death of driver of
Maruti car- Deceased was 39 years of the
age at the time of accident, was doing
wholesale trading in fruits and was
earning Rs.20,000/- per month - deceased
was survived by his widow, two minor
children and mother - Held - there was a
head on collision between car and the
truck - Tribunal rightly held the deceased
negligent to the tune of 50% - Deceased
income in the Income Tax Return was Rs.
1,20,000, the income of the deceased
would be considered to be Rs.1,20,000 per
annum - as per postmortem report, the
deceased was 40 years of age, hence,
addition towards future loss of income
would be 25% - accident took place in the
year 1998, the deceased was survived by
two minor children and widow Court
awarded Rs.50,000/- to the widow and
Rs.40,000/- each to the minor children -
rate of interest should be 3% from the
date of filing of the claim petition till the
amount if deposited and till then 6% if the
same has not been paid along with
interest (Para 14, 15, 16, 18, 20)
662 INDIAN LAW REPORTS ALLAHABAD SERIES
Allowed. (E-5)

List of Cases cited:

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

2. Bajaj Allianz General Insurance Co.Ltd. Vs
Smt. Renu Singh & ors. First Appeal From Order
No. 1818 of 2012 decided on 19.7.2016

3. Archit Saini & anr. Vs Oriental Insurance
Company Limited, AIR 2018 SC 1143

4. A.V. Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442

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

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

7. Bajaj Allianz General Insurance Comp. Pvt.
Ltd. Vs Union of India & ors. vide order
dated 27.1.2022

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

1. Heard Sri Sharve Singh, learned
counsel for the appellants and Sri Siddarth
Jaiswal, learned Advocate appearing Sri
Ashok Kumar Jaiswal, learned counsel for
the respondent.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 27.9.2011 passed by Motor
Accident Claims Tribunal/Special Judge,
(SC/ST
Act),
Allahabad
(hereinafter
referred to as 'Tribunal') in Claim Petition
No. 292 of 1998 awarding a sum of
Rs.3,09,500/-.

3. Brief facts of the case are on the
intervening night of 7/8.3.1998 at 00.30
am. on Allahabad-Kanpur Road near
Chauphatka
which
lies
within
the
jurisdiction
of
Police
Station
Cantt,
Allahabad,
the
truck
bearing
No.MP17A/0066, which was being driven
rashly and negligently dashed the Maruti
Car No.UGV-4647 from opposite direction
causing instantaneous death of Vinod
Kumar Kesarwani who was driving the
Maruti Car.

4
.
Deceased-
Vinod
Kumar
Kesarwani was 39 years of the age at the
time of accident, was doing wholesale
trading
in
fruits
and
was
earning
Rs.20,000/- per month. The deceased was
survived by his widow, two minor children
and mother. The Tribunal has considered
his income to be Rs.5,000/- per month,
deducted 1/3rd towards personal expenses
of the deceased, granted multiplier of 15,
granted Rs.9,500/- under non-pecuniary
heads and ultimately assessed the total
compensation to be Rs.6,00,000/-. The
Tribunal held the deceased-who was
driving the Car negligent to the tune of
50% and apportioned the amount of
compensation to the tune of 50%. The
claimants were therefore granted amount of
Rs.3,00,000/-
plus
Rs.
9,500/-
as
compensation.

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 50%. 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.MP-17A-0066 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.
5 All. Smt. Vinita Kesarwani & Ors. Vs. The Oriental Insurance Co. Ltd. & Anr.
663

6. It is further submitted by learned
counsel for the appellants that Tribunal did
not grant any amount for future loss of
income of the deceased and also the
amount
awarded
under
non-pecuniary
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
Tribunal has not granted interest on the
compensation which is bad in the eye of
law.

7. As against this, Sri Siddarth
Jaiswal, learned counsel for the respondentInsurance Company submits that as far as
the issue of negligence is concerned, the
Tribunal has rightly held the deceased
negligent to the tune of 50% as there is
head on collision and therefore, it cannot be
said that the driver of the truck was solely
negligent.

8. It is further submitted by learned
counsel for the respondent that the quantum
of compensation and non-grant of interest
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, 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 though
it 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
664 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
5 All. Smt. Vinita Kesarwani & Ors. Vs. The Oriental Insurance Co. Ltd. & Anr.
665
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. A similar view has been taken by
the Apex Court in Archit Saini and
Another
Vs.
Oriental
Insurance
Company Limited, AIR 2018 SC 1143
wherein the finding of the Tribunal was
upheld by adverting to the same more
particularly the Apex Court has upheld the
finding in paragraph 21 to 27 in its
judgment. The paragraph 5 of the said
Apex Court's judgment is reproduced
hereinbelow:

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

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

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

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

24. The arguments of the learned
counsel for the respondent that PW 7
Sohan Lal has stated in his crossexamination that there was no fog at that
time and there were lights on the Dhaba
and the truck was visible to him due to light
of Dhaba and he was standing at the
distance of 70 ft from the truck being road
between him and the truck and he noticed
at the car when he heard voice/sound
caused by the accident so Respondent 1 is
not at all negligent in this accident but
these submissions will not make the car
driver to be in any way negligent and
cannot give clean chit to the driver of the
Gas Tanker because there is a difference
between the visibility of a standing vehicle
from a place where the person is standing
and by a person who is coming driving the
vehicle because due to flashlights of
vehicles coming from front side the vehicle
coming from opposite side cannot generally
spot the standing vehicle in the road that
too in night-time when there is neither any
indicator or parking lights nor blinking
lights nor any other indication given on the
back of the stationed vehicle, therefore, the
driver of the car cannot be held to be in
any way negligent rather it is the sole
negligence on the part of the driver of the
offending Gas Tanker as held inGinni Devi
case [Ginni Devi v. Union of India, 2007
SCC OnLine P&H 126 : 2008 ACJ 1572]
, Mohan Lal case [New India Assurance
Co. Ltd. v. Mohan Lal, 2006 SCC OnLine
All 459 : (2007) 1 ACC 785 (All)] . It is not
the case of the respondent that the parking
lights of the standing truck were on or
there were any other indication on the
backside of the vehicle standing on the
road to enable the coming vehicle to see
the standing truck. The other arguments of
the learned counsel for Respondent 3 that
the road was sufficient wide road and that
the car driver could have avoided the
accident, so the driver of the car was
himself negligent in causing the accident
cannot be accepted when it has already
been held that the accident has been caused
due to sole negligence of the driver of the
offending stationed truck in the busy road.
The
proposition
of
law
laid
down
in Harbans
Kaur
case [New
India
Assurance Co. Ltd. v. Harbans Kaur, 2010
SCC OnLine P&H 7441 : (2010) 4 PLR
422
(P&H)]
and T.M.
Chayapathi
case [New India Assurance Co. Ltd. v. T.M.
Chayapathi, 2004 SCC OnLine AP 484 :
(2005) 4 ACC 61] is not disputed at all but
these authorities are not helpful to the
respondents being not applicable on the
facts and circumstances of the present case.
Likewise,
non-examination
of
minor
children of the age of 14 and 9 years who
lost their father and mother in the accident
cannot be held to be in any way detrimental
5 All. Smt. Vinita Kesarwani & Ors. Vs. The Oriental Insurance Co. Ltd. & Anr.
667
to the case of the claimants when
eyewitness to the occurrence has proved
the accident having been caused by the
negligence of Respondent 1 driver of the
offending vehicle.

25. Moreover,
in
Girdhari
Lal v. Radhey
Shyam [Girdhari
Lal v. Radhey Shyam, 1993 SCC OnLine
P&H 194 : PLR (1993) 104 P&H 109]
, Sudama
Devi v. Kewal
Ram [Sudama
Devi v.Kewal Ram, 2007 SCC OnLine
P&H 1208 : PLR (2008) 149 P&H
444] andPazhaniammal case [New India
Assurance Co. Ltd. v. Pazhaniammal, 2011
SCC OnLine Ker 1881 : 2012 ACJ
1370] our own Hon'ble High Court has
held that ''it is, prima facie safe to conclude
in claim cases that the accident has
occurred on account of rash or negligent
driving of the driver, if the driver is facing
the criminal trial on account of rash or
negligent driving.'

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

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

(emphasis supplied)"

14. As there was a head on collision
between car and the truck, we are unable to
accept the submission of the learned
counsel for the appellant that the Tribunal
should not have considered the negligence
of the deceased to the tune of 50%. We are
in agreement with the submission made by
Sri Jaiswal and on the basis of material on
record, negligence as considered by the
Tribunal is just and proper.

15. This takes this Court to the issue
of compensation. As far as income of the
deceased is concerned, the Tribunal has not
considered the Income Tax Returns. The
balance sheets of income and audit report
for the year 1994-95, 95-96, 96-97 & 97-98
were before the Tribunal and have also
been shown to us by the counsel for the
appellant as the record is not before us and
as there are conciliation going on so that
the Insurance Company may not be saddled
with heavy interest. We have perused the
record which shows his income was in the
Income Tax Return to be Rs.1,20,000/-
who are shown to be propriety of M/s
Sailesh Kumar Sushil Kumar & Company
and therefore the finding of the Tribunal
that what was the share of the deceased in
the income of the firm, is bad and cannot
stand the scrutiny of this Court. Hence, the
668 INDIAN LAW REPORTS ALLAHABAD SERIES
income
of
the
deceased
would
be
considered to be Rs.1,20,000/- per annum.

16. As far as future loss of income is
concerned,
learned
counsel
for
the
appellant has submitted that 40% should be
added towards future loss of income of the
deceased. As against this, learned counsel
for the respondent states that as per
postmortem report, the deceased was 40
years of age, hence, even if this Court
considers the judgment in Pranay Sethi
(Supra), addition towards future loss of
income would be 25%.

17. In Pranay Sethi (Supra), the
words used are 'below 40 years' and
unless it is clarified that the deceased was
below 40 years, addition of 40% is not
possible.
Hence,
we
accept
the
submission of learned counsel for the
respondent and hold that 25% should be
added in the income to the deceased
towards future loss. Deduction of 1/3rd
towards personal expenses and multiplier
of 15 granted by the Tribunal are just and
proper.

18. As far as the amount under the
head
of
non-pecuniary
damages
is
concerned, the accident took place in the
year 1998, the deceased was survived by
two minor children and widow, we award
Rs.50,000/- to the widow and Rs.40,000/-
each to the minor children who have lost
their father at a very tender age.

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

i. Annual Income Rs.1,20,000/-

ii. Percentage towards future
prospects : 25% namely Rs.30,000/-

iii. Total income : Rs. 1,20,000 +
30,000 = Rs.1,50,000/-

iv. Income after deduction of
1/3rd : Rs.1,00,000/-

vi. Multiplier applicable : 15

vii.
Loss
of
dependency:
Rs.1,00,000 x 15 = Rs.15,00,000/-

viii. Amount under non-pecuniary
head : 50,000 + 40,000 + 40,000 =
Rs.1,30,000/-

ix.
Total
compensation
:
16,30,000/-

x.
Compensation
payable
to
claimants
after
deductions
of
50%
negligence on the part of the deceased :
8,15,000/-

20. As far as issue of rate of interest is
concerned, it should be 3% from the date of
filing of the claim petition till the amount if
deposited and till then 6% if the same has
not been paid along with interest within 12
weeks from today. The amount already
deposited be deducted from the amount to
be deposited.

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

22. In view of the above, the appeal is
partly allowed. Judgment and award passed
by the Tribunal shall stand modified to the
aforesaid extent.

23. 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.
5 All. Smt. Kamleshwari Devi & Anr. Vs. Shiv Murti Lal & Anr.
669
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of
investment be passed by Tribunal..

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

25.

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.

26. 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
long time has elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.
----------
(2022)05ILR A669
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.03.2022

BEFORE

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

First Appeal From Order No.356 of 1992

Smt. Kamleshwari Devi & Anr.
 ...Appellants
Versus
Shiv Murti Lal & Anr. ...Respondents

Counsel for the Appellants:
Sri V.C. Srivastava, Ms. Anubha

Counsel for the Respondents:
Sri A.K. Shukla, Sri Arvind Kumar

Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
deceased, a bachelor, was a securityguard - deceased was survived by mother
and younger brother - He is deposed to be
earning Rs. 800 per month - Held -
Income Rs. 800 per month - deceased was
in the age bracket of 36 - 40 years, 40%
will have to be added towards future
prospects : 40% namely Rs.320 - Total
income : Rs. 800 + 320 = Rs. 1,120 -
deceased was a bachelor and, therefore,
deduction of 1/2, Income after deduction
of 1/2 : Rs. 560 - Annual income : Rs. 560
x 12 = Rs.6,720 - Multiplier applicable : 15
- Loss of dependency: Rs.6,720 x 15 = Rs.
1,00,800 - Amount under non pecuniary
heads : Rs.40,000 - Amount under medical