# Tata A.I.G. General Insurance Co. Ltd., Aligarh v. Vishnu & Ors

- **Citation:** (2023) 5 ILRA 188
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** First Appeal From Order No. 1109 of 2019
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tata-a-i-g-general-insurance-co-ltd-aligarh-v-vishnu-ors-50284
- **Pages:** 8

## Headnote

Civil Law - Motor Accident Claim-claimantsrespondents was injured-sustained permanent
disability up to 40 % -established by applicable
standard of evidence- unbroken chain of
evidence in the record links the accident,
injuries, medical treatment and the permanent
disability-accident caused by offending vehiclepermanent disability led to regular loss of
income-claimant is a public performer-claimant
entitled
for
future
prospects-compensation
increased from Rs.5,00,800 to Rs. 6,77,920/.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

188 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

14. 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 period has elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.

15. This Court is thankful to both the
counsels for getting this matter decided.
----------
(2023) 5 ILRA 188
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 1109 of 2019

Tata A.I.G. General Insurance Co. Ltd.,
Aligarh ...Appellant
Versus
Vishnu & Ors. ...Respondents

Counsel for the Appellant:
Sri Sushil Kumar Mehrotra

Counsel for the Respondents:
Sri A.T. Pandey, Sri Anupam Shyam
Dwivedi, Sri Sudhir Dixit, Sri Utkarsh Dixit,
Sri Ashutosh Pandey
Civil Law - Motor Accident Claim-claimantsrespondents was injured-sustained permanent
disability up to 40 % -established by applicable
standard of evidence- unbroken chain of
evidence in the record links the accident,
injuries, medical treatment and the permanent
disability-accident caused by offending vehiclepermanent disability led to regular loss of
income-claimant is a public performer-claimant
entitled
for
future
prospects-compensation
increased from Rs.5,00,800 to Rs. 6,77,920/.

Appeal partly allowed. (E-9)

List of Cases cited:
1. Pappu Deo Yadav Vs Naresh Kumar, 2020 0
AIR (SC) 4424

2. APSRTC represented by its General Manager
Vs M. Ramadevi & ors., 2008 (3) SCC 379

3. Cholamandalam Ms. General Insurance Co.
Ltd. through its Branch Manager Vs Sumitra &
ors., 2018 (2) ACC 826

4. Jitendra Kimshankar Trivedi & ors. Vs Kasam
Daud Kumbhar & ors., (2015) 4 SCC 237

5. Arun Kumar Agarwal & anr. Vs National
Insurance Company Ltd. & ors., (2010) 9 SCC
218

6. Mahant Dhangir & anr. Vs Madan Mohan &
ors., AIR 1988 SC 54

7. Delhi Electric Supply Undertaking Vs Basanti
Devi, AIR 2000 SC 43

8. National Insurance Co. Ltd. Vs Smt. Vidyawati
Devi & ors., First Appeal From Order No.2389 of
2016

9. New India Assurance Co. Ltd. Vs Smt. Suman
Mishra & ors., 2019 (5) ADJ 669

(Delivered by Hon'ble Ajay Bhanot, J.)

1. This instant appeal arises from the
judgment and decree/award dated on
22.2.2019, rendered by the Motor Accident
Claims Tribunal/13th Additional District
5 All. Tata A.I.G. General Insurance Co. Ltd., Aligarh Vs. Vishnu & Ors.
189
Judge, Aligarh in M.A.C.P. No.731 of 2014
(Vishnu vs. Tata A.I.G. General Insurance
Company Ltd. and others).

I. Facts of the Case:

2. Briefly, the case of the claimantsrespondents before the learned tribunal was
that the claimant-respondent was injured in
an accident on 26.8.2014 which was caused
by the rash and negligent driving of
offending driver of Bolero Jeep No. U.P.
81-X/0168. Apart from grievous injuries
the respondent-claimant also sustained a
permanent disability in the accident.
Among losses suffered by the claimantsrespondents were recurring a huge loss of
income caused by the permanent disability.
The Insurance-company resisted the claim
of the respondent-claimant before the
learned tribunal by filing pleadings.

3. Both parties adduced evidence
before the learned tribunal. The learned
tribunal partly allowed the claim petition
and
awarded
compensation
to
the
respondents-claimants which is depicted in
a tabulated form hereinunder :-

S.No.
Heads
Awarded
by
the
Tribunal
1
Monthly Income (A)
Rs. 5,000/-
2
Annual
Income
(A x 12 = B)
Rs. 60,000/-
3
Percentage of Income
towards
Loss
of
Future Prospects (C)
Nothing
4
Annual
Income
+
Future Prospects (B+C
= D)
Rs. 60,000/-
5
Deduction
towards
Personal Expenses (E)
-
6
Annual
Loss
of
Dependency/Income
(D-E = F)
(41%
of
Annual
Income)
= Rs. 24,600/-
7
Multiplier (G)
18
8
Total
Loss
of
Dependency/Income
Rs. 4,42,800/-
9
Medical Expenses (if
any)
Rs. 48,000/-
10
Loss of Love, Affection
& Consortium
Nil
11
Loss of Estate
Nil
12
Pain
Rs. 10,000/-
13
TOTAL
COMPENSATION
Rs. 5,00,800/-
14
Interest
7.00%

II. Arguments of learned counsel for
the parties:

4. Shri Sushil Kumar Mehrotra,
learned counsel for the appellant-Insurance
company
 submits that though various grounds have
been raised in the memo of appeal, only
two grounds are being pressed. Firstly, it
was a case of contributory negligence
which the learned tribunal failed to
consider negligence. Secondly, the loss of
income awarded to the respondent-claimant
was excessive and cannot be justified from
the evidence.

5. Shri Ashutosh Pandey, learned
counsel
for
the
respondents-claimants
raised an oral objection and submits that
the future prospects were liable to be added
to the compensation which was awarded.
The learned tribunal by neglecting to do so
has failed to award a just compensation and
has also acted in teeth of the law laid down
by the Supreme Court in Pappu Deo
Yadav vs. Naresh Kumar1.

6. He further contends that this Court
can correct the award even in the absence
of cross appeal in case it is not consistent
with the long held standards of grant of
compensation awarded by settled judicial
190 INDIAN LAW REPORTS ALLAHABAD SERIES
authorities. Reliance is placed upon the
judgment of the Supreme Court passed in
APSRTC represented by its General
Manager vs. M. Ramadevi and others2
and
Cholamandalam
Ms.
General
Insurance Co. Ltd. through its Branch
Manager vs. Sumitra and others3

7. After some arguments, learned
counsel for the parties jointly contend that
the following issues fall for consideration
in this appeal :-

"a). Whether the accident in
which the injured sustained injuries was a
result of contributory negligence for which
the Insurance Company alone cannot be
held liable ?

b) Whether loss of income as
determined by the learned tribunal was
excessive ?

c) Whether the appellant can raise
oral cross-objections at the stage of appeal
?

d) Whether the future prospects
are liable to be computed while granting
just compensation to the appellants ?"

III.
Issue
of
contributory
negligence:

8. The claimant-respondent appeared
as PW-1 to establish the fact of the incident
and negligence of the offending vehicle.

9. PW-1 Vishnu testified that on the
fateful day he was returning after a Ragini
performance. He disembarked from the bus
and started and walking on the right side of
a Kachha path. The offending vehicle
which was being driven rashly and
negligently, suddenly deviated from the
main road onto the kachha path and ran
over him. He suffered serious injuries and
was hospitalized after the accident. He also
saw the offending vehicle colliding with a
motor cycle. The two persons riding the
motorcycle died at the spot. The driver fled
the spot after the accident, however, he
recorded the number of the motor vehicle.
The police arrived at the spot about 15-20
minutes after the accident. The testimony
of witness was not impeached nor his credit
was shaken under cross-examination. The
learned tribunal which had the benefit of
observing the demeanour of the witness
found him to be a reliable witness and
believe his testimony.

10. The claimant also introduced as
evidence the site plan drawn by the police
authorities during the police investigation.
The site plan corroborates the testimonies
of the eye-witnesses before the tribunal.

11. This facts are thus established by
the evidence in the record and in
accordance with the applicable standards of
proof. The claimant-respondent was a
pedestrian, who was walking on the correct
side of the road. The offending vehicle was
over-speeding and driver of the said vehicle
was rash and negligent. The offending
vehicle ran over three people successively.
Two persons died at the spot, while the
claimant
was
severely
injured.
The
respondent claimant cannot be faulted with
in any manner for the accident. The
offending driver of the vehicle of Bolero
Car was solely responsible for causing the
accident. This is not a case of contributory
negligence.

12. The vehicle was insured by the
appellant-insurance company and the
appellant is fully liable to pay the
compensation
to
the
respondentsclaimants.

IV. Tribunal finding - Discussion:
5 All. Tata A.I.G. General Insurance Co. Ltd., Aligarh Vs. Vishnu & Ors.
191

13. The submission of Shri Sushil
Kumar Mehrotra, learned counsel for the
insurance company that this is a case of
contributory
negligence
since
the
respondent-claimant was walking ahead of
the motorcycle which also collided with the
offending vehicle. The argument is not only
misconceived but also supports the case of
the
claimant-respondent.
The
Bolero
vehicle was being driven in flagrant
violation of permissible speed limits and
norms of prudent driving and had run over
three people successively before it came to
the halt.

14. I am afraid that in view of the
preceding discussion, the contentions are
entirely misconceived and are rejected. The
issue of contributory negligence is found
against the appellant-Insurance company
and in favour of the respondents -
claimants.

V. Issue of loss of earning:

15.
The
injured-claimant
has
introduced both documentary as well as
oral evidence to establish the nature of the
disability and consequential loss of income.
The discharge bill of Shivam Care Centre
where the injured underwent treatment for
fracture of his leg after the accident has
been duly proved. The disability certificate
issued by the Physical Disability Board
immediately after the respondent-claimant
was discharged, records that the extent of
permanent physical disability is 41%. The
disability certificate has also been proved.

16. PW-2 - Dr. H.N. Singh Pundir, had
testified that he is an ortho surgeon and a
member of the Disability Board which had
issued the disability certificate to the
respondent-claimant. He has duly identified
his signature over the disability certificate.
PW-2 has deposed that disability certificate
depicts weakness caused to a particular part
as well as the body of the injured. The
disability was caused by a fracture. The
testimony of PW-2 was not impeached in
the cross-examination. The trial court
which had the benefit of observing the
witness opined that he is credit worthy and
his testimony is liable to be relied upon.

17. In these circumstances, this Court
is not persuaded to take any other view on
the credit of PW-2 Dr. H.N. Singh Pundeer.

18. In this wake, this Court finds that
the permanent disability in which the right
leg of the respondent-claimant to the extent
of 40% is established by applicable
standards of evidence. The unbroken chain
of evidence in the record links the accident,
injuries,
medical
treatment
and
the
permanent disability. The disability is
directly relatable to the accident caused by
the offending Bolero vehicle.

19.
The
respondent-claimant
has
asserted that the permanent disability had
led to a regular loss of income. The
respondent-claimant is a public performer
who sings and dances at various public
functions. The disability will impede his
rythmic dance movements and reduce his
public appeal.

20. The learned tribunal has awarded
Rs.5,000/-
as
notional
income
for
determining the compensation. Nothing
from the record has been shown to dispute
the said finding. The income so computed
by the learned tribunal is upheld.

21. The learned tribunal neglected to
award any amount under the head of future
prospects.
The
respondent-claimant
is
entitled for future prospects to the extent of
192 INDIAN LAW REPORTS ALLAHABAD SERIES
40% on account of the permanent disability
as laid down in the judgment of Supreme
Court in Pappu Deo Yadav (Supra).

22. The relevant holding is extracted
below in Pappu Deo Yadav (Supra):

"21. This court is also of the
opinion that the courts below needlessly
discounted the evidence presented by the
appellant in respect of the income earned
by him. Working in the informal sector as
he did, i.e. as a typist/data entry operator in
court premises in Delhi, his assertion about
earning ₹12,000/- could not be discarded
substantially, to the extent of bringing it
down to ₹ 8,000/- per month. Such self
employed professionals, it is noticeable,
were not obliged to file income tax returns
for AY 2011-2012, when no levy existed
for anyone earning less than ₹ 1,60,000/-
per annum.29 The advocate who deposed
about the earnings of the appellant was
believed to the extent that the tribunal fixed
the appellant's monthly earnings at ₹
8,000/-.
If
one
takes
into
account
contemporary minimum wages for skilled
workers (which was in the range of ₹
8,500/-) the realistic figure would be
₹10,000/-
per
month. Adding
future
prospects at 40%30, the income should be
taken as ₹14,000 for the purpose of
calculation of compensation. Accordingly,
this court finds that the compensation
payable for the disability of loss of an arm
(assessed at 65%) would be ₹19,65,600/-
(i.e., ₹ 14,000/- x 12 x 65% x 18) or
Rupees Nineteen lakhs sixty five thousand
six hundred only."

23. Shri Ashutosh Pandey, learned
counsel for the respondent-claimant has
raised the cross-objections to the extent that
the tribunal neglected to compute future
prospects
while
determining
the
compesnation
and
is
liable
to
be
entertained.

VI. Issue of oral cross objection:

24.
The
question
whether
oral
objections
can
be
raised
for
an
enhancement of compensation at the stage
of appeal has been well settled by good
authorities in point.

25. The jurisdiction of the appellant
court to allow a party to take oral
objections is traceable to the power of the
court of appeal enumerated in Order XLI
Rule 33 of the CPC. The Order XLI Rule
33 of the CPC is reproduced hereinafter :-

"Rule 33. Power of Court of
Appeal.-The Appellate Court shall have
power to pass any decree and make any
order which ought to have been passed or
made and to pass or make such further
other decree or order as the case may
require, and this order may be exercised by
the Court notwithstanding that the appeal is
as to part only of the decree and may be
exercised in favour of all or any of the
respondents or parties may not have filed
any appeal or objection and may, where
there have been decrees in cross suits or
where two or more decrees are passed in
one suit, be exercised in respect of all or
any of the decrees, although an appeal may
not have been filed against such decree."
(emphasis supplied)

26. The amplitude of the provision
ensures that the arms of law are long
enough to reach injustice, and the arms of
the Court are enough to serve justice.
Drawing its power from the aforesaid
provision, the appellate court may pass
orders to serve the ends of justice.
5 All. Tata A.I.G. General Insurance Co. Ltd., Aligarh Vs. Vishnu & Ors.
193

27. More specifically the beneficent
nature of the legislation and the statutory
mandate of the Motor Vehicles Act, 1988
enjoin the appellate court to exercise its
powers under Order 41 Rule 33 to award
just
compensation.
[See:
Jitendra
Kimshankar Trivedi and others vs.
Kasam Daud Kumbhar and others4,
Arun Kumar Agarwal and another vs.
National Insurance Company Ltd. and
others5]

28. The scope of Order 41 Rule 33 of
the CPC the Supreme Court in Mahant
Dhangir and another v. Madan Mohan
and others6 held:-

"11.The
next
question
for
consideration
is
whether
the
crossobjection was maintainable against Madan
Mohan, the co-respondent, and if not,
whether the Court could call into aid Order
41 Rule 33 CPC. For appreciating the
contention it will be useful to set out
hereunder R. 22 and R. 33 of order 41:

"R. 22 Upon hearing, respondent
may object to decree as if he had preferred
separate appeal. (1) Any respondent,
though he may not have appealed from any
part of the decree, may not only support the
decree (but may also state that the finding
against him in the Court below in respect of
any issue ought to have been in his favour,
and may also take any cross-objection) to
the decree which he could have taken by
way of appeal, provided he has filed such
objection in the Appellate Court within one
month from the date of service on him or
his pleader of notice of the day fixed for
hearing the appeal, or within such further
time as the Appellate Court may see fit to
allow.

R. 33 Power of Court of Appeal.

The Appellate Court shall have
power to pass any decree and make any
order which ought to have been passed or
made and to pass or make such further
other decree or order as the case may
require, and this order may be exercised by
the Court notwithstanding that the appeal is
as to part only of the decree and may be
exercised in favour of all or any of the
respondents or parties may not have filed
any appeal or objection and may, where
there have been decrees in cross suits or
where two or more decrees are passed in
one suit, be exercised in respect of all or
any of the decrees, although an appeal may
not have been filed against such decree."

29. The same view was reiterated in
Delhi Electric Supply Undertaking vs.
Basanti Devi7.

30. Adverting to the extent of powers
under Order XLI Rule 33 of the CPC, this
Court in National Insurance Co. Ltd. vs.
Smt. Vidyawati Devi and others8 held thus:

"Order XLI Rule 33 of the Code
of Civil Procedure prescribing the power of
court of appeal clearly provides that the
Appellate Court shall have power to pass
any decree and make any order which
ought to have been passed or made as the
case may require, and this power may be
exercised in favour of all or any of the
respondents or parties though they may not
have filed any cross appeal or objection."

31. Following Vidyawati Devi (supra)
was followed in New India Assurance Co.
Ltd. v. Smt. Suman Mishra and others9.
Wherein Thaker, J. permitted counsels to
raise oral objections and enhanced the
compensation even in absence of written
cross objections in appeal by holding:

"44. It is submitted that the
amount which is granted is not just
194 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation and it is orally submitted that
the amount of compensation requires to be
enhanced in light of Division Bench
decision of this High Court in First Appeal
From Order No.2389 of 2016 ( National
Insurance Co. Ltd. Versus Smt. Vidyawati
Devi And 2 Others) decided on 27.7.2016
wherein it is held that under Order 41 Rule
33 of Code of Civil Procedure, amount of
compensation can be enhanced even if
there is no written appeal or written cross
objection. This applies to this case also
recently it has been held by Apex Court in
North East Karnataka Road Transport
Corporation Vs. Smt. Sujatha, AIR 2018
SC 5593 that for beneficial legislation the
Court should grant enhancement even if
other side is not present.

45.
The
principles
of
law
pertaining to grant of just compensation
cannot be said to have been adhered by
Tribunal and therefore, it will have to be redecided as per the decision in First Appeal
From Order No.2389 of 2016 ( National
Insurance Co. Ltd. Versus Smt. Vidyawati
Devi And 2 Others) decided on 27.7.2016."

32. When the conditions precedent for
raising cross objections were satisfied, this
Court in Vidyawati Devi (supra) was not
found wanting in entertaining the cross
objections by holding thus:

"We are of the considered view
that the conditions as laid down in
provisions of Order XLI Rule 33 are
satisfied in the present case. In Delhi
Electric Supply Undertaking (Supra) the
Hon'ble Apex Court has observed that
when
circumstances
exist
which
necessitate the exercise of discretion
conferred by Rule 33, the court cannot be
found wanting when it comes to exercise
its powers."

33.
In
wake
of
the
preceding
discussion and authorities in point, the oral
cross objections on behalf of the claimantsrespondents are liable
to be heard.
However, this Court may mould the relief
appropriately to obviate prejudice to either
parties.

34. The head of future prospects is
well settled by good authorities. There is no
dispute about applicability of the said
authorities to this case and also the
entitlement of the claimant-respondent to
future prospects. The grant of future
prospects in the facts and circumstances of
this case does not require any laboured
examination of evidence or elaborate
arguments. It is a simple primary level.

35. In this wake, the oral cross
objections on behalf of the claimantrespondent are liable to be entertained and
allowed to the extent indicated above.

VII.
Determination
of
Compensation
to
which
claimantrespondent is entitled:

36.
In
the
wake
of
preceding
discussion, the amount of compensation
awarded to the claimant-respondent is
tabulated below:

i. Date of Accident

-
26.08.2014 at 8.00 P.M.

ii. Name of the injured

 -Vishnu

iii. Age of the injured

-21 years

iv. Occupation of the deceased

-To
sing
in
the
Jagaran
programme

v. Income of the injured

- Rs.10,000/-
5 All. Umashanker & Anr. Vs. Smt. Kusumlata & Anr.
195

vi. Name, Age and Relationship
of claimant with the deceased/injured

Sr. No.
Name
Age
Relation
1
Vishnu
21

S.No.
Heads
Amount (in Rupees)
1
Monthly Income (A) Rs. 5,000/-
2
Annual Income
(A x 12 = B)
Rs. 60,000/-
3
Future Prospects (C) 40% of Rs. 60,000/-
(Rs. 24,000/-)
4
Annual Income +
Future
Prospects
(B+C = D)
60,000 + 24,000 =
Rs. 84,000/-
5
Deduction
towards
Personal
Expenses
(E)

6
Annual
Loss
of
Dependancy
(D-E = F)
(41%
of
Annual
Income)
= Rs. 34,440/-
7
Multiplier (G)
18
8
Total
Loss
of
Dependency/Income
Rs. 6,19,920/-
9
Medical Expenses (if
any)
Rs. 48,000/-
10
Conventional Heads
Loss
of
Love,
Affection
&
Consortium
Loss of Estate
Pain
Nil
Nil
Rs. 10,000/-
13
TOTAL
COMPENSATION
Rs. 6,77,920/-
14
Interest
7%

VIII. Conclusion and Directions:

37. The amount of compensation to
which the claimant-respondent has thus
been found entitled shall be deposited by
the corporation within three months before
the learned tribunal. Thereafter the learned
tribunal shall release the amount to the
claimants without delay. The amount
already disbursed to the claimants (if any)
shall be duly adjusted.

38. With the aforesaid directions, this
appeal is partly allowed.
----------
(2023) 5 ILRA 195
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2023

BEFORE

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

First Appeal From Order No. 1938 of 2010

Umashanker & Anr. ...Appellants
Versus
Smt. Kusumlata & Anr. ...Respondents

Counsel for the Appellants:
Sri Namit Kumar Sharma

Counsel for the Respondents:
Jyotsna Srivastava, Sri S.D. Ojha

Civil Law - Motor Accident Claim -
Deceased was a housewife-survived by six
months old son and husband-income can be
considered to be Rs. 2000/- per monthcategory of self employed-age bracket-2025 years-40% of income added towards
future
loss-1/2
deducted
for
personal
expenses-multiplier of 18-also entitled for
non pecuniary damages-rate of interest7.5%.

Appeal partly allowed. (E-9)

List of Cases cited:

1. National Insurance Company Vs Pranay Sethi
[2014 (4) TAC 637 (SC)]

2. Smt.Sarla Verma Vs Delhi Transport Corp.
[2009 (2) TAC 677 (SC)

3. Kurvan Ansari @ Kurvan Ali & anr. Vs Shyam
Kishore Murmu & anr. [2021 (4) TAC (SC)]

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