# Suman Singh & Ors v. Mahaveer Tarachand Bafana & Ors

- **Citation:** (2022) 3 ILRA 864
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-09
- **Case number:** First Appeal From Order No.686 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suman-singh-ors-v-mahaveer-tarachand-bafana-ors-48250
- **Pages:** 4

## Headnote

Civil Law - Motor Vehicle Act, 1988Deceased was self employed-income assessed
by court below is modified-40% of income to be
added in future prospects-Multiplier of 18
applied-award modified.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

864 INDIAN LAW REPORTS ALLAHABAD SERIES
period of limitation under Section 34(3),
together with its proviso, is three months
and another 30 days of time, that may be
condoned
by
the
Court.
The
commencement of this period of time is
from the date of communication of the
award, which in this case is 03.08.2017.
The period of limitation would, therefore,
expire on 02.11.2017. The further period of
time that could have been condoned by the
Court under the proviso to Section 34(3) of
the Act of 1996 is another thirty days, that
would take it to 02.12.2017. Admittedly,
during this period of time, no civil
proceedings were instituted or prosecuted
by the appellant to set aside the award on
the ground of fraud or lack of jurisdiction
or on any other ground that they seek to
impeach it. The earliest challenge, as
already
noted
through
competent
proceedings, that would qualify for the
purpose of Section 14 is 08.05.2019, when
objections under Section 47 CPC were filed
before the Executing Court. Therefore, in
the considered opinion of this Court, this is
not a case where the appellant is entitled to
the benefit of addition of the period of
limitation spent in pursuing in good faith
and with due diligence, a remedy that failed
because of defect of jurisdiction or other
like cause. The application under Section 5
of the Limitation Act is clearly incompetent
because limitation is governed by Section
34(3) of the Act of 1996 and condonation
by its proviso; not by Section 5 of the
Limitation Act, as rightly held by the
Commercial Court.

31. In this view of the matter, this
Court does not find any merit in this
appeal. The appeal fails and is hereby
dismissed.

32. Costs easy.
----------
(2022)03ILR A864
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2022

BEFORE

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

First Appeal From Order No.686 of 2007

Suman Singh & Ors. ...Appellants
Versus
Mahaveer Tarachand Bafana & Ors.
 ...Respondents

Counsel for the Appellants:
Sri A.K. Rai, Sri Vishnu Kumar Singh

Counsel for the Respondents:
Sri Brijesh Chandra Naik

Civil Law - Motor Vehicle Act, 1988Deceased was self employed-income assessed
by court below is modified-40% of income to be
added in future prospects-Multiplier of 18
applied-award modified.

Appeal partly allowed. (E-9)

List of Cases cited:

1. National Insurance Co. Ltd.Vs Pranay Sethi &
ors., (2017) 16 SCC 680

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

3. Vimal Kanwar & ors. Vs Kishore Dan & ors.,
2013 (3) T.A.C. 6 (S.C.)

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

5. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., (2017) 16 SCC 680

6. Civil Appeal No.242/243 of 2020 (National
Insurance Co. Ltd. vs Birender & ors.)
3 All. Suman Singh & Ors. Vs. Mahaveer Tarachand Bafana & Ors.
865
7. A.Vs Padma Vs Venugopal, Reported in 2012
(1) GLH (SC), 442

8. Smt. Hansaguti P. Ladhani v/s The Oriental
Insurance Company Ltd., reported in 2007(2)
GLH 291
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Vivek Varma, J.)

1. Heard Sri Vishnu Kumar Singh,
learned counsel for the appellants, Sri
Brijesh Chandra Naik, learned counsel for
the respondents and perused the record.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 29.1.2007 passed by the Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No.1, Varanasi
(hereinafter referred to as 'Tribunal') in
M.A.C.P No.306 of 1999 (Suman Singh
and others vs. Mahaveer Tarachand Bafana
and
others)
awarding
a
sum
of
Rs.6,86,000/- as compensation with interest
at the rate of 6% per annum.

3. The accident is not in dispute. The
issue of negligence decided by the Tribunal
is not in dispute. The respondent 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 appellant that an accident took place
on 13.9.1999 wherein Sanjai Singh, who
was
self
employed
person
earning
Rs.3,86,495/-
per
annum,
met
with
accidental death leaving behind him his
widow wife of 22 years, daughter of one
and half years and parents aged about 55
and 50 years. The Tribunal has considered
his income to be Rs.5,000/- per month did
not add any amount towards future loss of
income granted multiplier of 17 and
granted only Rs. 6,000/- towards non
pecuniary damages. It is further submitted
that the Tribunal has not granted any
amount towards future loss of income of
the deceased which should be 40% of the
income in view of the decision in National
Insurance Company Limited Vs. Pranay
Sethi and Others, (2017) 16 SCC 680. It
is further submitted that the multiplier of 17
awarded by the Tribunal is on the lower
side and it should be 18 in view of the
decision of the Apex Court in Sarla Verma
Vs. Delhi Transport Corporation, (2009)
6 SCC 121. It is also submitted that the
amount for non-pecuniary damages and the
interest awarded by the Tribunal are on the
lower side and require enhancement. The
deduction towards personal expenses of the
deceased should be 1/3rd as the deceased
died leaving behind him his widow, minor
daughter and parents. Leaned counsel for
the appellant has also relied on the decision
in Vimal Kanwar and Others Vs.
Kishore Dan and others, 2013 (3) T.A.C.
6

5. As against this, Sri Brijesh Chandra
Naik, learned counsel for the respondents
has submitted that the income of the
deceased does not require any enhancement
as the income which has not been proved
cannot be granted. It is further submitted
that the compensation awarded by the
Tribunal is just and proper and does not
call for any interference.

6. Having heard the counsels for the
parties and considered the factual data, this
Court finds that the accident occurred on
13.9.1999 causing death of Sanjai Singh
who was 24 years of age at the time of
accident. The Tribunal has considered the
income tax return which was for Rs.
866 INDIAN LAW REPORTS ALLAHABAD SERIES
61,000/- and therefore,certain additions can
be made to his income. We consider his
income Rs.8,000/- per month but are
unable to accept the submission of counsel
for the appellant that his income should be
considered to be Rs.3,86,495/- as the
deceased was self employed person. We are
even supported in our view by the decision
of the Apex Court in Vimla Devi and
others Vs. National Insurance Company
Limited and another, (2019) 2 SCC 186.

7. As far as addition of future
prospects is concerned, the deceased being
below 40 years of age, 40% of the income
will have to be added in view of the
decision of the Apex Court in National
Insurance Company Limited Vs. Pranay
Sethi and Others, (2017) 16 SCC 680.
The multiplier applicable would be 18 and
Rs.1,00,000/- requires to be granted under
the head of non-pecuniary damages. As far
as deduction towards personal expenses of
the deceased is concerned, it would be
1/3rd as the deceased was survived by his
widow, one daughter and parents.

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

i. Income: Rs.8,000/-

ii. Percentage towards future
prospects : 40% namely Rs.3200/-

iii. Total income : Rs.8000 +
3200 = Rs.11,200/-

iv. Income after deduction of
1/3rd
towards
personal
expenses
:
Rs.7467/-

v. Annual income : Rs.7467 x 12
= Rs.89,604/-

vi. Multiplier applicable : 18

vii.
Loss
of
dependency:
Rs.89,604 x 18 = Rs.16,12,872/-

viii. Amount under non pecuniary
heads : Rs.1,00,000/-

ix.
Total
compensation
:
Rs.17,12,872/-

9. As far as issue of rate of interest is
concerned, it should be 7.5% in view
decision of the Apex Court in Civil Appeal
No.242/243 of 2020 (National Insurance
Company Ltd. vs Birender and others)
decided on 13 January, 2020 which is the
latest in point of time.

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

11. 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 amount be deposited by
the respondent-Insurance Company 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 award and 6%
thereafter till the amount is deposited. The
amount already deposited be deducted from
the amount to be deposited. Record be
transmitted to Tribunal.

12. 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.

13. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
3 All. Uttar Pradesh Rajya Sadak Parivahan Nigam Vs. Smt. Anamika Deo & Ors.
867
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.

14. 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 apply the judgment of A.V.
Padma (supra). The same is to be applied
looking to the facts of each case.

15. This Court is thankful to both the
counsels for getting this old matter decided.
----------
(2022)03ILR A867
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2022

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

First Appeal From Order No. 1039 of 2021

Uttar Pradesh Rajya Sadak Parivahan
Nigam ...Appellant
Versus
Smt. Anamika Deo & Ors. ...Respondents

Counsel for the Appellant
Sri Dharmendra Dhar Dubey, Sri Awadhesh
Kumar Saxena

Counsel for the Respondents:

Civil Law - Motor Vehicle Act, 1988 -
Claimants filed documentary evidence - principle
of contributory negligence- computation of the
compensation -retain the interest of 7% from
the date of filing of the claim petition till the
amount is deposited - Tribunal to recalculate the
amount and return the excess amount to the
appellant.

Appeal is partly allowed. (E-9)

List of Cases cited:

1. UPSRTC Vs Km. Mamta & ors., reported in
AIR 2016 SC 948

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

3. Khenyei Vs New India Assurance Company
Limited & ors., 2015 LawSuit (SC) 469

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

5. Regional Manager U.P. State Road Transport
Corporation Vs Smt. Nisha Dubey & ors., 2017
(2008) AICC 1056
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Awadhesh Kumar
Saxena, learned counsel for the appellant
and perused the record. None is present for