# Suraj Mukhi & Ors v. Sunil Garg & Anr

- **Citation:** (2022) 5 ILRA 859
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-21
- **Case number:** Court Gujarat in R/Special Civil Application No.4800 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suraj-mukhi-ors-v-sunil-garg-anr-48598
- **Pages:** 14

## Headnote

A. Civil Law - Motor Accident Act, 1988 -
Claim - Compensation - Determination of
income of the deceased, who were driver
and salesman - Future loss - Entitlement
- Held, Tribunals should consider the
potential of earning of a person - High
Court enhanced the income of the driver
from Rs. 4500/- to Rs. 6,000/- and of
salesman from Rs. 3000/- to Rs. 4500/-,
and re-computed the compensation by
adding 40% future loss and applying
multiplier of 18 and awarded 7.5%
interest. (Para 22, 26 and 29)
860 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,
when it can be applied - 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 - 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. (Para
10)

C. Motor Accident Claim - Principle of
contributory negligence - Scope and
meaning
-
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. (Para 11)
D. Civil Law - Income Tax Act, 1961 -
Section 194A (3) (ix) - Withdraw of amount
of interest - Certificate of Income Tax
authority, when required - Held, if the
interest payable to any claimant for any
financial
year
exceeds
Rs.
50,000/-,
insurance Co./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 claimants to withdraw the amount
without producing the certificate from the
concerned Income- Tax Authority. (Para 31)
Appeal partly allowed. (E-1)
List of Cases cited:-

## Text

_Characters 0–39,970 of 45,571. This is a partial read: ask again with offset=39970 for what follows._

5 All. Suraj Mukhi & Ors. Vs. Sunil Garg & Anr.
859
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. The said
decision has also been reiterated by High
Court
Gujarat
in
R/Special
Civil
Application
No.4800
of
2021
(The
Oriental Insurance Co. Ltd. v. Chief
Commissioner of Income Tax (TDS)
decided on 5.4.2022.

33.

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.

34. 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
10 years have elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.

35. A copy of this order be kept on
the dossier of the learned Judge by the
High Court as we feel that the judgment
and award impugned is not in consonance
with the facts of the case. We request the
learned Registrar General to circulate this
judgment to the Motor Accident Claims
Tribunals in State of U.P. to see that in
future they may not commit such glaring
mistakes which increases the burden of the
High Court.
----------
(2022)05ILR A859
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2022

BEFORE

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

First Appeal From Order No. 4118 of 2018
With
First Appeal From Order No. 4117 of 2018

Suraj Mukhi & Ors. ...Appellants
Versus
Sunil Garg & Anr. ...Respondents

Counsel for the Appellants:
Sri Ram Singh, Sri Amit Kumar Singh

Counsel for the Respondents:
Sri Radhey Shyam, Sri Vinay Kumar Pandey

A. Civil Law - Motor Accident Act, 1988 -
Claim - Compensation - Determination of
income of the deceased, who were driver
and salesman - Future loss - Entitlement
- Held, Tribunals should consider the
potential of earning of a person - High
Court enhanced the income of the driver
from Rs. 4500/- to Rs. 6,000/- and of
salesman from Rs. 3000/- to Rs. 4500/-,
and re-computed the compensation by
adding 40% future loss and applying
multiplier of 18 and awarded 7.5%
interest. (Para 22, 26 and 29)
860 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,
when it can be applied - 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 - 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. (Para
10)

C. Motor Accident Claim - Principle of
contributory negligence - Scope and
meaning
-
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. (Para 11)
D. Civil Law - Income Tax Act, 1961 -
Section 194A (3) (ix) - Withdraw of amount
of interest - Certificate of Income Tax
authority, when required - Held, if the
interest payable to any claimant for any
financial
year
exceeds
Rs.
50,000/-,
insurance Co./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 claimants to withdraw the amount
without producing the certificate from the
concerned Income- Tax Authority. (Para 31)
Appeal partly allowed. (E-1)
List of Cases cited:-
1. First Appeal From Order No. 1818 of 2012;
Bajaj Allianz General Insurance Co. Ltd. Vs Smt.
Renu Singh & ors. decided by Allahabad High
Court on 19.7.2016
2. Khenyei Vs New India Assurance Co. Ltd. &
ors.; 2015 LawSuit (SC) 469
3. Archit Saini & anr. Vs Oriental Insurance Co.
Ltd.; AIR 2018 SC 1143
4. National Insurance Co. Ltd. Vs Pranay Sethi &
ors. 2017 LawSuit (SC) 1093
5. Sarla Verma & ors. Vs Delhi Transport Corp.
& anr.; 2009 LawSuit (SC)
6. Smt. Meena Pawaia & ors. Vs Ashraf Ali &
ors. 2021 0 Supreme (SC) 694
7. National Insurance Co. Ltd. Vs Mannat Johal
& ors. 2019 (2) T.A.C. 705 (S.C.)
8. Lakkamma & ors. Vs The Regional Manager
M/s United India Insurance Co. Ltd.; AIR 2021
SC 3301
9. A.V. Padma Vs Venugopal; 2012 (1) GLH (SC)
442
10. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co. Ltd.; 2007(2) GLH 291
11. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs U.O.I. & ors. decided by Apex Court on
27.1.2022
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard Sri Ram Singh, learned
counsel for the appellants and Sri Radhey
Shyam, learned counsel for the respondentInsurance Company and Sri Vinay Kumar
Pandey, learned counsel for the owner of
the offending vehicle.

2. Both these appeals arise out of the
same accident causing death of the Sunil
and Manoj Kumar. First Appeal From
Order No. 4118 of 2018 (arising out of
MACP No. 770 of 2014) has been
preferred by the legal heirs of the deceasedSunil and First Appeal From Order No.
4117 of 2018 (arising out of MACP No.
771 of 2014) has been preferred by the
5 All. Suraj Mukhi & Ors. Vs. Sunil Garg & Anr.
861
legal heirs of deceased-Manoj Kumar. Both
these appeals challenge the judgment and
award dated 24.9.2015 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No. 6, Aligarh.

3. As the issues which are to be
decided can be decided from the perusal of
the
judgment
impugned
and
certain
documents appended with memo of appeal
and as the matter is very old, we dispense
with record and decide the same by consent
of the parties.

4. At the outset, once again, we direct
and request the Registrar General to issue
circular to the Motor Accident Claims
Tribunals to decide the matters arising out
of same accident after consolidating the
same.

5. Averments made in the memo of
appeal go to show that Sunil, Manoj and wife
of Sunil namely Neetu got injured in the
vehicular accident. Sunil and Manoj died on
the spot. The accident occurred in front of
Sonai Station Road on 17.9.2014 at 8.00 p.m.
It is unrebutted averments that the Wagon R
which was owned by respondent came and
rammed into stationery Indica Car being
driven by Manoj Kumar. Respondent No.1,
Sunil Garg, is the driver and owner of the
offending vehicle namely Wagon R. He has
not appeared before the Tribunal nor has he
appeared before this Court. The Insurance
Company came and filed its reply of
negation. The accident though having
occurred in the year after the 1988 Act, the
reply was as if it is under the old Act namely
Act of 1939. They denied the fact that vehicle
was insured with them. They have denied the
fact that premium was paid. The Insurance
Company, in its reply, has stated that the
vehicle was being driven in breach of policy.

6. All other issues except issue of
holding
the
deceased
negligent
and
compensation granted for the death of Sunil
and Manoj Kumar are not under challenge
and, therefore, further detailed facts are not
required to be elaborately discussed.

7. Sri Radhey Shyam, learned counsel
for the respondent has pointed out that
Manoj Kumar, the elder brother, of Sunil
was driving the vehicle and qua him,
Tribunal has considered 10% negligence.

8. Sri Ram Singh, learned counsel for
the appellants tried to contend that the
vehicle which Manoj Kumar was driving
was stationery and he is not at all negligent.
It is further submitted by Sri Ram Singh,
learned Advocate that the quantum of
compensation awarded in both the matters
are on the lower side and require to be
recalculated in view of the latest decisions
of the Apex 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.
862 INDIAN LAW REPORTS ALLAHABAD SERIES

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
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
5 All. Suraj Mukhi & Ors. Vs. Sunil Garg & Anr.
863
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 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.
864 INDIAN LAW REPORTS ALLAHABAD SERIES

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,
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
5 All. Suraj Mukhi & Ors. Vs. Sunil Garg & Anr.
865
owner
was
the
subject-matter
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
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 b

15. 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
866 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
5 All. Suraj Mukhi & Ors. Vs. Sunil Garg & Anr.
867
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
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,
868 INDIAN LAW REPORTS ALLAHABAD SERIES
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)"

16. It is admitted position of fact that
the charge-sheet was laid against the driver
of the Wagon R. who did not appear before
the Tribunal. The finding of fact is that the
Wagon R came from opposite side and
dashed the stationery Indica Car from
wrong side. It is not the case that the
offending vehicle has dashed the Indica car
from behind and, therefore, we also uphold
the negligence of the deceased to the tune
of 10% and that of the driver of offending
vehicle to the tune of 90%.

17. However, as far as legal heirs of
deceased-Sunil is concerned, Sunil having
not contributed to the accident having taken
place, qua him the decision of the Apex
Court in Khenyei (Supra) will apply and
no amount should be deducted from
compensation payable to him.

18. This takes us to the compensation
in both the matters. The deceased were real
brothers who have left behind them their
elder and younger brothers and a mother
who was aged 55 years in the year of
accident. It is contended by Sri Radhey
Shyam, learned counsel for the Insurance
Company that when the mother is there,
brothers would not be entitled for any
amount unless it is proved that they were
dependent
on
them.
The
principle
enunciated by the Apex Court in several
decisions lay down that legal representative
would be entitled to the compensation and
it is inter se between the heirs of class I and
class II to apportion the amount.

(F.A.F.O. No. 4117 of 2018 :
Deceased-Manoj Kumar)

19. Deceased- Manoj Kumar was 20
years of age. The Tribunal has considered
his income to be Rs.4500/- per month,
deducted 1/2 towards personal expenses,
applied multiplier of 18, added Rs.15000/-
towards non pecuniary damages and
ultimately awarded Rs. 4,50,900/- with
interest at the rate of 7% after deducting
10% negligence.

20. It is submitted by learned counsel
for the appellant that the income considered
by the Tribunal is bad in the eye of law as
deceased was driver by profession and was
earning Rs.7800/- per month in the year of
accident. It is further submitted that the
Tribunal has not granted any amount
towards future loss of income which should
be granted in view of the decision of the
5 All. Suraj Mukhi & Ors. Vs. Sunil Garg & Anr.
869
Apex Court in National Insurance Co.
Ltd. Vs. Pranay Sethi and others, 2017
LawSuit (SC) 1093. It is also submitted by
learned counsel for the appellant that
deduction towards personal expenses of the
deceased should be 1/3rd as the deceased
was survived by his mother and two
brothers. It is also submitted that the
amount under non-pecuniary heads and
interest awarded by the Tribunal is on the
lower side and require to be enhanced.

21. As against this Sri Radhey
Shyam, learned counsel for the respondentInsurance Company states that the income
which has not been proved cannot be
granted; that the Tribunal has rightly not
granted future income as on the date of
award, the decision in Sarla Verma and
others Vs. Delhi Transport Corporation
and Another, 2009 LawSuit (SC) was in
vogue.

22. Having heard learned counsel for
the parties and perused the award, we
recapitulate the income of deceased-Manoj
Kumar, who was driver by profession. His
driving license was produced on record.
Recently, the Apex Court in Smt. Meena
Pawaia & others Vs. Ashraf Ali and
others 2021 0 Supreme (SC) 694, has held
that the appellate Court and the Tribunals
should consider the potential of earning of
a person. Therefore, we consider the
income of the deceased to be Rs.6,000/- for
a driver in the year 2014. To which, 40%
should be added towards future loss of
income as the deceased was below 40 years
of age. As far as multiplier is concerned,
there is no dispute. The deduction towards
personal expenses of the deceased would
be 1/2 as has been done by the Tribunal and
not 1/3rd as the deceased was bachelor.
The mother of the deceased would be
entitled to Rs.40,000/- towards filial
consortium
plus
Rs.30,000/-
towards
funeral charges, which will bring the figure
to
Rs.70,000/-
towards
non-pecuniary
heads. Hence, the total compensation
payable to the appellants is computed
herein below:

i. Monthly Income Rs.6,000/-

ii. Percentage towards future
prospects : 40% namely Rs.2,400/-

iii. Total income : Rs. 6,000 +
2,400 = Rs.8400/-

iv. Income after deduction of 1/2
: Rs.4200/-

v. Annual Income : 4200 x 12 =
50,400/-

vi. Multiplier applicable : 18

vii.
Loss
of
dependency:
Rs.50,400 x 18 = Rs.9,07,200/-

viii. Amount under non-pecuniary
head : 70,000/-

ix.
Total
compensation
:
9,77,200/-

x.
Compensation
payable
to
claimant after deduction of 10% negligence
on the part of the deceased : 8,79,480/-

(F.A.F.O. No. 4118 of 2018 :
Deceased-Sunil)

23. Deceased- Sunil was 18 years of
age and was Salesman in Wine Shop. The
Tribunal has considered his income to be
Rs.3000/- per month, deducted 1/3rd
towards
personal
expenses,
applied
multiplier of 18, added Rs.15000/- towards
870 INDIAN LAW REPORTS ALLAHABAD SERIES
non pecuniary damages and ultimately
awarded Rs.4,47,000/- with interest at the
rate of 7%.

24. It is submitted by learned counsel
for
the
appellant
the
Tribunal
has
considered the income of the deceased to
be Rs.3,000/- per month which is bad and
as the deceased was Sales Man in Wine
Shop and was earning Rs.12000/- per
month, hence, this income should be
considered. It is further submitted that the
Tribunal has not granted any amount
towards future loss of income which should
be granted in view of the decision of the
Apex Court in National Insurance Co.
Ltd. Vs. Pranay Sethi and others, 2017
LawSuit (SC) 1093. It is also submitted
that the amount under non-pecuniary heads
and interest awarded by the Tribunal is on
the lower side and requires to be enhanced.

25. As against this Sri Radhey
Shyam, learned counsel for the respondentInsurance Company states that the income
which has not been proved cannot be
granted; that the Tribunal has rightly not
granted future income as on the date of
award, the decision in Sarla Verma and
others Vs. Delhi Transport Corporation
and Another, 2009 LawSuit (SC) was in
vogue. It is also submitted by learned
counsel for the respondent that deduction
towards personal expenses of the deceased
would be 1/2 as the deceased was bachelor.

26. Having heard learned counsels for
the parties and perused the award, we
recapitulate the income of deceased-Sunil,
who was Salesman in a Wine Shop.
Recently, the Apex Court in Smt. Meena
Pawaia & others Vs. Ashraf Ali and
others 2021 0 Supreme (SC) 694, has held
that the appellate Court and the Tribunals
should consider the potential of earning of
a person. Therefore, we consider the
income of the deceased to be Rs.4500/-. To
which, 40% should be added towards future
loss of income as the deceased was below
40 years of age. As far as multiplier is
concerned, there is no dispute. The
deduction towards personal expenses of the
deceased would be 1/2 and not 1/3rd as the
deceased was bachelor. The mother of the
deceased would be entitled to Rs.40,000/-
towards filial consortium plus Rs.30,000/-
towards funeral charges, which will bring
the figure to Rs.70,000/- towards nonpecuniary
heads.
Hence,
the
total
compensation payable to the appellants is
computed herein below:

i. Monthly Income Rs.4500/-

ii. Percentage towards future
prospects : 40% namely Rs.1800/-

iii. Total income : Rs. 4500 +
1800 = Rs.6300/-

iv. Income after deduction of 1/2
: Rs.3150/-

v. Annual Income : 3150 x 12 =
37,800/-

vi. Multiplier applicable : 18

vii.
Loss
of
dependency:
Rs.37,800 x 18 = Rs.6,80,400/-

viii. Amount under non-pecuniary
head : 70,000/-

ix.
Total
compensation
:
7,50,400/-

27. 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
5 All. Suraj Mukhi & Ors. Vs. Sunil Garg & Anr.
871
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.