# The New India Assurance Co. Ltd., Civil Lines, Allahabad & Ors v. Smt. Lajjawati & Ors

- **Citation:** (2022) 11 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-02
- **Case number:** First Appeal From Order No. 1140 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-ltd-civil-lines-allahabad-ors-v-smt-lajjawati-ors-47902
- **Pages:** 19

## Headnote

868 INDIAN LAW REPORTS ALLAHABAD SERIES
Ms. Kamini Pandey, Sri Anand Pandey

A. Civil Law - Tort - Motor Accident claim -
Motor Vehicles Act, 1988 - Section 173 -
Enhancement of compensation - Just
Compensation - Issue - whether on an
appeal by the insurer, compensation to be
awarded, can be enhanced without there
being
a
cross-appeal
or
objection
preferred by the claimant ? - Held - It is
well-settled
that
in
the
matter
of
insurance
claim
compensation
in
reference to the motor accident, the court
should not take hyper technical approach
and ensure that just compensation is
awarded to the affected person or the
claimants - High Court can enhance the
compensation awarded by the Tribunal
even in the absence of a cross-objection
or an appeal preferred by the claimants -
In the instant case in appeal by the
Insurance Company, challenging an award
of the Motor Accident Claims Tribunal
High
Court
enhanced
compensation
awarded. (Para 24)

B.
Tort
-
Motor
Accident
claim
-
Appreciation of Evidence - Interested
Witness - Credibility - Submission of
Insurer that Tribunal's finding is primarily
based on the testimony of, PW-2, who
claims to be an eye-witness of the
accident, was also employed in the same
department
as
the
deceased
and,
therefore, the Tribunal ought not to have
accepted
his
testimony
-
Held
-
submission
of
the
insurer
that
the
testimony of PW-2 is unreliable for the
reason that he is an employee of the same
department as the deceased, is utterly
unacceptable - There is no principle of law
or one of prudence by which in a case of
tort, like a motor accident, a fellow
employee of the victim, serving the same
department, is to be doubted for his word,
about the circumstances attending the
accident. (Para 18)

C. Motor Accident claim - Motor Vehicles
Act, 1988 - Section 173 - Determination of
Compensation - Age - Insurer argued that
the age of the deceased has been wrongly
determined by the Tribunal at 54 years,
going by the entry in his service record -
In her testimony PW-1 stated that she got
married in 1974, at which time her
husband was 20 years old - accident
occurred
in
2011,
therefore
as
per
arithmetic
calculations
deceased
age
would have been 57 years - Held - best
evidence about the deceased's age is the
entry
in
his
service-book
-
in
the
postmortem
report,
the
age
of
the
deceased has been estimated to be 55
years, which supports the age recorded in
his service book - PW-1 in her crossexamination said that she does not know
her husband's date of birth - deceased's
recorded date of birth in his service
record, much corroborated by the medicolegal evidence, cannot be disbelieved.
(Para 22, 23)

D. Motor Accident claim - Motor Vehicles
Act, 1988 - Section 173 - Determination of
Compensation - Income - No deduction of
Compensatory
Allowances
-
Every
allowance, that the deceased receives
towards his remuneration, would count as
his income - All that can be deducted is
whatever goes out of the deceased's hands
as levies of the State, like income tax or any
sum of money, that would not enure to his
benefit, if he were alive - deductions made
as contributions to funds etc. are not liable
to be deducted from the deceased's income
- allowances and perquisites received by an
employee during service not to be deducted
from his annual income while working out
the claimants' dependency i.e. HRA (House
Rent Allowance), CCA (City Compensatory
Allowance) and medical allowance should
be taken into consideration in calculation of
the income of the deceased - However,
deduction towards EPF and GIS should also
not have been made in calculating the
income of the deceased - Tribunal deducted
whatever the deceased received towards
CCA and MCA, during the year, from his
annual income - That deduction ordered by
the Tribunal, not at all justified - Tribunal
erred in deducting a sum of 6,600/- from
the annual income of the deceased. (Para
27, 28, 29)
11 All. The New India Assurance Co. Ltd., Civil Lines, Allaha

## Text

_Characters 0–39,889 of 65,353. This is a partial read: ask again with offset=39889 for what follows._

11 All. The New India Assurance Co. Ltd., Civil Lines, Allahabad & Ors. Vs. Smt. Lajjawati &
 Ors.
867
landlord for reconstruction of the building
or for the tenant to be granted permission to
carryout reconstruction. Thus, it is apparent
that once Section 29-A of the Act, 1972,
itself does not provide for filing of an
application for re-building of a demolished
building under tenancy consequently the
application filed by the petitioner under the
provisions of Section 29-A of the Act, 1972
was clearly not maintainable and as such
there is no illegality or infirmity in the
order impugned dated 23.09.2009.

21. Even if the provisions of Section
28 read with Section 26 of the Act, 1972
are considered and the word 'repair' as
indicated in Section 28 of the Act, 1972 is
seen in the context of Section 26 of the Act,
1972, the said 'repairs' as used in Section
28 of the Act, 1972 would only be confined
to the provisions of Section 26(2) of the
Act, 1972 whereby the landlord is required
to keep the building under tenancy
windproof and waterproof and, subject to
any contract in writing to the contrary,
carry out periodical whitewashing and
repairs. It is not the case in the present
matter that the landlord had failed to carry
out any whitewashing, repairs or had failed
to keep the shops under tenancy windproof
or waterproof rather the shops itself have
been allegedly demolished.

22. Incidentally, the Apex Court in
the case of Trust Jama Masjid Waqf
No.31 vs. Lakshmi Talkies and others -
(2010) 9 SCC 78 while considering the
provisions of Section 29-A of the Act, 1972
has held that for applicability of Section
29-A of the Act, 1972, two conditions must
be satisfied namely (i) that the land alone
has been let out, and (ii) that permanent
structure has been constructed by the tenant
with landlord's consent incurring his own
expenses.

23. In the instant case, it is not the case
of the petitioner that the two conditions were
fulfilled namely that it is only the land that
had been let out to the tenant/petitioner rather
from the facts on record, it clearly emerges
that two shops were let out to the petitioner.
Further it is not the case of the petitioner that
the
shops
were
constructed
by
the
tenant/petitioner with the landlord's consent
incurring his own expenses. Consequently,
the provisions of Section 29-A of the Act,
1972 are clearly not applicable upon the
tenant/petitioner in the facts of the instant
case.

24. So far as the judgments, as have
been referred by the learned counsel for the
petitioner are concerned, none of the
judgments deal with the provisions of
Section 29-A of the Act, 1972 and thus
have no applicability in the facts of the case
already enumerated above.

25. Keeping in view the aforesaid
discussion, no case for interference is made
out. Accordingly, the petition is dismissed.
----------
(2022) 11 ILRA 867
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 1140 of 2014

The New India Assurance Co. Ltd., Civil
Lines, Allahabad & Ors. ...Appellants
Versus
Smt. Lajjawati & Ors. ...Respondents

Counsel for the Appellants:
Sri Rahul Sahi

Counsel for the Respondents:
868 INDIAN LAW REPORTS ALLAHABAD SERIES
Ms. Kamini Pandey, Sri Anand Pandey

A. Civil Law - Tort - Motor Accident claim -
Motor Vehicles Act, 1988 - Section 173 -
Enhancement of compensation - Just
Compensation - Issue - whether on an
appeal by the insurer, compensation to be
awarded, can be enhanced without there
being
a
cross-appeal
or
objection
preferred by the claimant ? - Held - It is
well-settled
that
in
the
matter
of
insurance
claim
compensation
in
reference to the motor accident, the court
should not take hyper technical approach
and ensure that just compensation is
awarded to the affected person or the
claimants - High Court can enhance the
compensation awarded by the Tribunal
even in the absence of a cross-objection
or an appeal preferred by the claimants -
In the instant case in appeal by the
Insurance Company, challenging an award
of the Motor Accident Claims Tribunal
High
Court
enhanced
compensation
awarded. (Para 24)

B.
Tort
-
Motor
Accident
claim
-
Appreciation of Evidence - Interested
Witness - Credibility - Submission of
Insurer that Tribunal's finding is primarily
based on the testimony of, PW-2, who
claims to be an eye-witness of the
accident, was also employed in the same
department
as
the
deceased
and,
therefore, the Tribunal ought not to have
accepted
his
testimony
-
Held
-
submission
of
the
insurer
that
the
testimony of PW-2 is unreliable for the
reason that he is an employee of the same
department as the deceased, is utterly
unacceptable - There is no principle of law
or one of prudence by which in a case of
tort, like a motor accident, a fellow
employee of the victim, serving the same
department, is to be doubted for his word,
about the circumstances attending the
accident. (Para 18)

C. Motor Accident claim - Motor Vehicles
Act, 1988 - Section 173 - Determination of
Compensation - Age - Insurer argued that
the age of the deceased has been wrongly
determined by the Tribunal at 54 years,
going by the entry in his service record -
In her testimony PW-1 stated that she got
married in 1974, at which time her
husband was 20 years old - accident
occurred
in
2011,
therefore
as
per
arithmetic
calculations
deceased
age
would have been 57 years - Held - best
evidence about the deceased's age is the
entry
in
his
service-book
-
in
the
postmortem
report,
the
age
of
the
deceased has been estimated to be 55
years, which supports the age recorded in
his service book - PW-1 in her crossexamination said that she does not know
her husband's date of birth - deceased's
recorded date of birth in his service
record, much corroborated by the medicolegal evidence, cannot be disbelieved.
(Para 22, 23)

D. Motor Accident claim - Motor Vehicles
Act, 1988 - Section 173 - Determination of
Compensation - Income - No deduction of
Compensatory
Allowances
-
Every
allowance, that the deceased receives
towards his remuneration, would count as
his income - All that can be deducted is
whatever goes out of the deceased's hands
as levies of the State, like income tax or any
sum of money, that would not enure to his
benefit, if he were alive - deductions made
as contributions to funds etc. are not liable
to be deducted from the deceased's income
- allowances and perquisites received by an
employee during service not to be deducted
from his annual income while working out
the claimants' dependency i.e. HRA (House
Rent Allowance), CCA (City Compensatory
Allowance) and medical allowance should
be taken into consideration in calculation of
the income of the deceased - However,
deduction towards EPF and GIS should also
not have been made in calculating the
income of the deceased - Tribunal deducted
whatever the deceased received towards
CCA and MCA, during the year, from his
annual income - That deduction ordered by
the Tribunal, not at all justified - Tribunal
erred in deducting a sum of 6,600/- from
the annual income of the deceased. (Para
27, 28, 29)
11 All. The New India Assurance Co. Ltd., Civil Lines, Allahabad & Ors. Vs. Smt. Lajjawati &
 Ors.
869
E. Motor Accident claim - Motor Vehicles
Act, 1988 - Section 173 - Uttar Pradesh
Motor Vehicles Rules, 1998, Rule 220A(3) - Determination of Compensation -
Future Propsects - deceased is entitled
to
future
prospects
as
he
was
a
permanent
employee
in
government
service - Future prospects, are to be
determined in accordance with Rule
220-A(3) of the Uttar Pradesh Motor
Vehicles Rules, 1998 - deceased was
aged more than 50 years. He was 54 -
claimants are entitled to add on account
of
future
prospects
20%
of
the
deceased's
salary
in
reckoning
his
income and the consequent loss of
dependency (Para 32)

F. Motor Vehicles Act, 1988 - Section
166 - Motor Accident - Death case -
Compensation - Loss of consortium -
loss of consortium is not confined to the
widow alone, but the parents too are
entitled to be compensated for the loss
of filial consortium - the widow is
entitled to spousal consortium and the
deceased's father to filial consortium -
Parental Consortium is awarded to the
children
who
lose
the
care
and
protection of their parents in motor
vehicle accidents - A child, who has
advanced into matured adulthood, is
married or otherwise in the mainstream
of
life,
would
not
be
entitled
to
compensation under that head - Held -
Adult employed sons of the deceased are
not entitled to anything on account of
loss
of
consortium
-
Claimant's
entitlement
under
the
conventional
heads = Loss of Estate + Funeral
Expenses
+
Dependents'
consortium
(15,000
+
15,000+
40,000
x
2)
₹1,10,000/- (Para 35, 36, 38)

Allowed. (E-5)

List of Cases cited:

1. Oriental Insurance Co. Ltd. Vs Meena Variyal
& ors., (2007) 5 SCC 428

2. Oriental Insurance Co. Ltd. Vs Premlata
Shukla & ors., (2007) 13 SCC 476

3. Smt. Gaura Devi & ors. Vs Shahzad Khan &
ors., 2013 (1) AWC 914

4. Ranjana Prakash & ors. Vs Divisional
Manager& anr., (2011) 14 SCC 639

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

6. Magma General Insurance Co. Ltd. Vs Nanu
Ram @ Chuhru Ram & ors., (2018) 18 SCC 130

7. Surekha & ors. Vs Santosh & ors., 2020 SCC
OnLine SC 1312

8. Sunil Sharma & ors. Vs Bachitar Singh & ors.,
(2011) 11 SCC 425

9. Sarla Verma (Smt.) & ors. Vs Delhi Transport
Corp. & anr., (2009) 6 SCC 121

10. Smt. Ganpat Devi Vs Istiyaq Ahmad & anr.,
F.A.F.O. No. - 614 of 2010 decided on
10.08.2022

11. Smt. Shanti Devi & ors. Vs Anil Awasthi @
Anil Kumar Awasthi& anr., F.A.F.O. No. 866 of
2011, decided on 30.05.2022

12. Jiuti Devi & ors. Vs Manoj Kumar Rai & ors.,
2022 SCC OnLine All 46

(Delivered by Hon'ble J.J. Munir, J.)

This is an appeal by the Insurance
Company, challenging an award of the
Motor Accident Claims Tribunal/ the
Additional District Judge, Court No.9,
Mathura
dated
09.01.2014,
awarding
compensation to the claimant-respondents,
on account of a fatal motor accident, where
one Heera Singh Chaudhary lost his life.

2. The facts giving rise to this appeal
are thus:
870 INDIAN LAW REPORTS ALLAHABAD SERIES

According
to
the
claimantrespondents, who are respondent nos.1 to 5
to this appeal and shall hereinafter be called
'the claimants', Heera Singh Chaudhary was
a Junior Engineer with the Department of
Irrigation, Government of U.P. posted at
Etah. On 04.09.2011 for the purpose of tailfeed work, he was supervising the removal
of shrubs, garbage etc., blocking water
passage under the culvert, situate at the
Khitauli Turn on the Amapur-Sahwar Road,
Etah. At about 2:30 p.m., a truck bearing
Registration No. UP-80F-9381, driven
negligently and at a high speed, approached
from the Etah side. It hit Heera Singh
Chaudhary
and
ran
him
over.
In
consequence,
Heera
Singh Chaudhary
sustained
grievous
injuries
and
was
conveyed for medical aid to the Sahwar
Hospital, but declared dead by the doctors
there. His dead body was subjected to
autopsy at Etah. Since the accident had
occurred within the local limits of Police
Station Sahwar, District Kashiram Nagar,
Case Crime No. 323 of 2011, under
Sections 279, 337, 338, 304A IPC, was
registered there.

3. It is the claimants' further case that
the deceased Heera Singh Chaudhary was an
able bodied and healthy man. He was
employed with the Department of Irrigation
as a Junior Engineer. He was drawing a
monthly salary of ₹52,041/-, which was the
source of livelihood for the family. The entire
family, that is to say, the claimants, who are
dependents of Heera Singh Chaudhary, have
plunged into a financial crisis and their future
turned bleak. Accordingly, the claimants have
preferred the present claim.

4. It is further pleaded that the accident
occurred on account of the offending vehicle
being driven at a high speed and negligently
by its driver, Kaptan Singh, opposite party
no.1 to the claim petition and respondent no.7
here. He shall hereinafter be called 'the
driver'. Smt. Mithilesh Kumari, opposite
party no.2 to the claim petition, was the
registered owner of the offending vehicle at
the time of the accident. She is respondent
no.6 to this appeal. She will hereinafter be
called 'the owner'.

5. The offending truck was insured with
the New India Assurance Company Limited,
Saukh Adda, Mathura through its Branch
Manager (hereinafter referred to as ''the
insurers')
under
a
policy
valid
from
22.01.2011 to 21.01.2012. It is the claimants'
case that they are entitled to a total
compensation of ₹65 lakhs, together with
interest @ 12% per annum on account of the
fatal motor accident, payable by the opposite
parties to the claim petition, that is to say, the
owner, the insurers and the driver, jointly and
severally.

6. The claimants, accordingly, instituted
the claim petition under Section 166 of the
Motor Vehicles Act, 1988 (for short, 'the Act')
before the Motor Accident Claims Tribunal/
District Judge, Mathura as they are residents
of Mathura, a fact on account of which the
Tribunal
at
Mathura
had
territorial
jurisdiction.

7. The Insurers put in a written
statement, denying the allegations in the
claim petition and by way of additional pleas,
came up with a case that they are not the
insurers of the offending vehicle bearing
Registration No. UP-80F-9381, unless the
original policy was produced. It was further
pleaded that in case the existence of the
policy were confirmed, the insurers reserve
their rights to file an additional written
statement. It was also pleaded that the claim
petition was bad on account of copies of the
FIR, the Postmortem Report, the Site-plan,
11 All. The New India Assurance Co. Ltd., Civil Lines, Allahabad & Ors. Vs. Smt. Lajjawati &
 Ors.
871
the charge-sheet, the technical report etc. not
being presented along with the claim petition.
The insurers further denied the fact that the
offending vehicle was involved in the
accident and put the claimants to strict proof
of the fact. It was also pleaded that it was
expected of the owner and the driver that they
would produce the route-permit, the Driving
Licence, the Fitness Certificate, Registration
Certificate etc. and prove these, and that in
the absence of these documents being
produced and proved, the claimants had no
right to recover from the insurers. It is the
insurers' further case that the owner and the
driver have violated the terms of the policy.
There is a further plea that the driver of the
offending vehicle did not hit the deceased
Heera Singh Chaudhary and that the said
vehicle has been involved in the accident
without basis. The further plea is that the FIR
lodged by the deceased's wife is wrong and
the insurers deny the accident. It was also the
insurers' case that the entire fault/ negligence
was that of the deceased, Heera Singh
Chaudhary and the insurers are not liable to
compensate on that account. Moreover, the
compensation demanded was inflated and
exaggerated.

8. The owner filed a separate written
statement and did a wholesome denial of the
claimants' case. In the additional pleas, it was
urged that neither the offending vehicle
operated by the driver was involved in the
accident, that happened on 04.09.2011 at 2:30
p.m. at Khitauli Canal Bridge, P.S. Shahwar,
District Kashiram Nagar, nor the deceased
Heera Singh Chaudhary sustained injury in
consequence of the accident, caused by the
offending vehicle. It was pleaded that without
prejudice to the owner's case that the accident
never happened involving the offending
vehicle, there was no rash or negligent
operation by the driver. The owner further
pleaded that the claimants' case that the
deceased was aged 54 years or that he was a
Junior Engineer with the Department of
Irrigation, earning a sum of ₹52,041/- per
month was wrong, false and concocted. The
compensation claimed was not at all due and
burden lay entirely upon the claimants to
establish the facts. The owner further pleaded
that the claimants were not dependents of the
deceased nor his legal representatives. The
owner
was
not
liable
to
pay
any
compensation, as claimed. The petition was
not properly drawn up, verified or presented.
It was not maintainable. The claimants had
not filed the necessary papers, that were
mandatory under the Motor Vehicle Rules,
entitling them to maintain the claim petition.
The further plea was that the owner had, for
the offending vehicle on the date of accident,
a Registration Certificate, a valid insurance,
Fitness Certificate, route-permit, a paid up tax
etc. The driver had a valid driving licence to
operate the offending vehicle bearing Licence
No. RT4396/ Aligarh/ 85, valid from
01.12.2008 to 30.11.2011 and 31.03.2012 to
30.03.2015. The licence was further endorsed
as LMV (P.E.) + HGV (P.E.) and that it was
in force on the date of accident. The
offending vehicle on the date of accident, was
insured by the insurers vide Policy No.
3213231100200006364,
valid
from
22.01.2011
to
21.01.2012,
offering
a
comprehensive cover. In substance, therefore,
the liability, if any, lay on the shoulders of the
insurers.

9. The driver did not appear to contest
the claim petition nor did he file a written
statement.

10. Upon the pleadings of parties, the
following issues were framed (translated
into English from Hindi):

(1) Whether on 04.09.2011 at 2:30
p.m. when Heera Singh Chaudhary for the
872 INDIAN LAW REPORTS ALLAHABAD SERIES
purpose of tail-feed work, was supervising
clearance of shrubs and garbage under the
culvert, located at the Khitauli Turn on the
Amapur-Shahwar Road, a truck bearing
(Registration)
No.
UP-80F-9381
approaching from the side of Etah, driven
negligently at a high speed, hit Heera Singh
Chaudhary, the front wheel running him over
and causing his death?

(2) Whether on the date of
accident, the driver of the truck bearing
(Registration) No. UP-80F-9381, held a valid
and effective driving licence?

(3) Whether on the date of
accident, truck bearing (Registration) No.
UP-80F-9381, was insured with opposite
party no.1, the New India Insurance
Company (sic) Assurance Company Limited?

(4) Whether the petitioners were
entitled to any relief from the opposite
parties? If yes, how much and from which
opposite party?

11. The documentary evidence led on
behalf of the claimants has been listed in
the judgment of the Tribunal and no useful
purpose would be served by a repetition
thereof. However, the relevant documents
would be referred to wherever appropriate
during course of this judgment. The
claimants examined Smt. Lajjawati, the
deceased's widow as PW-1, one Mausam
Ali (an eye-witness) as PW-2 and Pratap
Singh Chauhan, a Senior Clerk in the
Department of Irrigation, Etah as PW-3.

12. The opposite parties put in, by
way of documentary evidence, a photostat
copy of the insurance policy, the driver's
driving licence, a photostat copy of the
registration certificate, a photostat copy of
the goods permit, a copy of the fitness
certificate, Paper No. 17ग/5. No oral
evidence was produced on behalf of any of
the opposite parties before the Tribunal.

13. Heard Mr. Rahul Sahai, learned
Counsel for the insurers, Ms. Kamini
Pandey, learned Counsel appearing on
behalf of claimants and perused the record.
No one appears on behalf of the owner.

14. Mr. Rahul Sahai, learned Counsel
for the insurers has urged that the Tribunal
has gone wrong in holding that negligence
of the driver was proved. He submits that
the Tribunal's finding is primarily based on
the testimony of one Mausam Ali, PW-2,
who claims to be an eye-witness of the
accident. It is urged that the eye-witness
was also employed in the same department
as the deceased and, therefore, the Tribunal
ought not to have accepted his testimony
without due caution. It is also urged that at
the time of the accident, PW-2 was looking
in the opposite direction and, therefore, his
testimony is of no significance about the
involvement or the negligence of the
offending vehicle. It is also said in criticism
of the Tribunal's judgment by Mr. Sahai
that it is a settled proposition of the law that
the factum of negligence is a sine qua non
for a claim under Section 166 of the Act to
succeed. In a very candid stance on behalf
of the insurer, the learned Counsel says that
the testimony of PW-2 may have some
relevance, so far as the factum of accident
and involvement of the offending vehicle is
concerned, but his testimony would not be
relevant insofar as the issue of negligence
goes. It is emphasized that PW-2 was
facing the other side and the accident took
place with his back to the mishap. As such,
negligence cannot be said to be duly
proved.

15. It is next submitted that apart from
these factors, extrinsic to the testimony of
the witness that have bearing upon it, the
testimony of PW-2 does not inspire
confidence. It is emphasized that the
11 All. The New India Assurance Co. Ltd., Civil Lines, Allahabad & Ors. Vs. Smt. Lajjawati &
 Ors.
873
witness has stated that he was standing
under the culvert, whereas the deceased
was standing over it. The evidence of PW2, therefore, cannot be relied upon, insofar
as the offending vehicle's negligence is
concerned. Reliance in this connection has
been placed upon the decision of the
Supreme Court in Oriental Insurance Co.
Ltd. v. Meena Variyal and others, (2007)
5 SCC 428. In Meena Variyal (supra), it
has been held:

27. We think that the law laid
down in Minu B. Mehta v. Balkrishna
Ramchandra Nayan [(1977) 2 SCC 441 :
(1977) 2 SCR 886] was accepted by the
legislature while enacting the Motor
Vehicles Act, 1988 by introducing Section
163-A of the Act providing for payment of
compensation
notwithstanding
anything
contained in the Act or in any other law for
the time being in force that the owner of a
motor vehicle or the authorised insurer
shall be liable to pay in the case of death or
permanent disablement due to accident
arising out of the use of the motor vehicle,
compensation, as indicated in the Second
Schedule, to the legal heirs or the victim, as
the case may be, and in a claim made under
sub-section (1) of Section 163-A of the Act,
the claimant shall not be required to plead
or establish that the death or permanent
disablement in respect of which the claim
has been made was due to any wrongful act
or neglect or default of the owner of the
vehicle concerned. Therefore, the victim of
an accident or his dependants have an
option either to proceed under Section 166
of the Act or under Section 163-A of the
Act. Once they approach the Tribunal under
Section 166 of the Act, they have
necessarily to take upon themselves the
burden of establishing the negligence of the
driver or owner of the vehicle concerned.
But if they proceed under Section 163-A of
the Act, the compensation will be awarded
in terms of the Schedule without calling
upon the victim or his dependants to
establish any negligence or default on the
part of the owner of the vehicle or the
driver of the vehicle.

16. Reliance has further been placed
on the decision of the Supreme Court in
Oriental Insurance Company Limited v.
Premlata Shukla and others, (2007) 13
SCC 476 and the decision of a Division
Bench of this Court in Smt. Gaura Devi
and others vs. Shahzad Khan and others,
2013 (1) AWC 914.

17. Ms. Kamini Pandey, learned
Counsel appearing on behalf of the
claimants, on the other hand, submitted that
the testimony of PW-2 is a clear, accurate
and dependable account by an eye-witness,
who was doubtlessly there at the time of
the accident. The evidence of PW-2, read as
a whole, clearly establishes not only the
factum of accident, but the solitary
negligence of the driver of the offending
vehicle.

18.

We
have
considered
the
submissions of the learned Counsel for
parties on the issue in hand. So far as the
testimony of PW-1 is concerned, it is not of
any relevance, insofar as the factum of
accident or the negligence of the offending
vehicle goes. She is not an eye-witness. In
the opinion of this Court, the proof of
negligence hinges on the testimony of PW2, Mausam Ali. It must be said at once that
the submission on behalf of the insurers
that the testimony of PW-2 ought to be
approached with caution, almost suggesting
it to be unreliable for the reason that he is
an employee of the same department as the
deceased, is utterly unacceptable. There is
no principle of law or one of prudence by
874 INDIAN LAW REPORTS ALLAHABAD SERIES
which in a case of tort, like a motor
accident, a fellow employee of the victim,
serving the same department, is to be
doubted
for
his
word,
about
the
circumstances attending the accident.

19. So far as PW-2 is concerned, he is
a very natural witness since he was a part
of the team of employees of the Irrigation
Department, detailed to the work of tailfeed being undertaken on the fateful day
under the stewardship of the deceased. The
said witness was part of his workforce. The
witness in his cross-examination has
introduced himself as a Seenchpal and has
apparently denied a suggestion that he was
a Mate. No doubt, he has said that his face
and that of Heera Singh was not towards
the road and that he did not see the
offending
vehicle
approach,
but
the
evidence is clear on the point that he was
working
at
the
site
of
accident,
commanding the labour-force, at a distance
of 5 feet from the spot where the deceased
was standing at the time when he fell
victim to the accident. The witness has
clearly specified the registration number of
the vehicle. He has consistently remained
unwavering in his stand that it was the
offending vehicle that caused the accident.
In the opinion of this Court, the evidence of
the witness has to be read as a whole.
Contrary to what the insurers say that the
witness could utter falsehood, because of
some kind of an ''imagined bias' for a
colleague, the witness's account has the
assurance of his presence on the date, time
and place of accident. He was assuredly
detailed to the same duty as the deceased,
albeit in a different and subordinate role.
His presence on the spot has the credit of
Government records from the Irrigation
Department. About the witness looking in
another
direction
when
the
accident
happened, is too slender a circumstance to
believe that he would not have seen what
he has said in his testimony relating to the
accident and the tort committed by the
offending vehicle. A man standing 5 feet
away from the site of a fatal motor
accident, even if he were looking the other
way, would naturally become cognizant in
the split of a second to look in the right
direction when the mishap occurred. Quick
shift of attention at a distance, as small as 5
feet, about a happening this big, is good
enough to credit the witness with being a
truthful witness of whatever he has said in
his testimony, relating to the accident. The
witness
has
decidedly
reported
the
offending vehicle to be involved in the
accident and said that it was the vehicle's
negligence that caused the mishap that day.
There is not the slightest reason to take a
different view from the Tribunal on this
score. In the opinion of this Court by the
sound standard of preponderant probability,
the negligence of the offending vehicle is
well established. The authorities relied
upon by Mr. Sahai, all binding for the
principle that they lay down, are not
attracted to the facts of this case at all for
the reasons that we have indicated. It is
held, accordingly.

20. The other issue is about the
quantum of compensation on which learned
Counsel for both parties have vied to sway
this Court in favour of their stand. Mr.
Sahai has argued that the age of the
deceased has been wrongly determined by
the Tribunal at 54 years, going by the entry
in his service record. He submits that the
deceased was aged 57 years at the time of
accident. To the above end, learned
Counsel for the insurers has drawn this
Court's attention to the testimony of PW-1,
where it is said that she got married in the
year 1974 and at that time, her husband was
aged about 20 years. It is argued that the
11 All. The New India Assurance Co. Ltd., Civil Lines, Allahabad & Ors. Vs. Smt. Lajjawati &
 Ors.
875
accident happened in the year 2011 and,
therefore,
the
arithmetical
calculation
would safely place the deceased's age at 57
years. It is urged that in view of the
aforesaid
testimony
of
PW-1,
the
deceased's wife and one of the claimants,
the Tribunal ought to have ignored the
deceased's date of birth recorded in the
service-book. It is also argued by the
learned Counsel for the insurers that in no
event
can
this
Court
enhance
the
compensation awarded by the Tribunal in
the absence of a cross-objection or an
appeal preferred by the claimants. In aid of
the aforesaid submission, Mr. Sahai has
placed reliance upon a decision of the
Supreme Court in Ranjana Prakash and
others
v.
Divisional
Manager
and
another, (2011) 14 SCC 639. In Ranjana
Prakash (supra), it has been held:

7. This principle also flows from
Order 41 Rule 33 of the Code of Civil
Procedure which enables an appellate court
to pass any order which ought to have been
passed by the trial court and to make such
further or other order as the case may
require, even if the respondent had not filed
any appeal or cross-objections. This power
is entrusted to the appellate court to enable
it to do complete justice between the
parties. Order 41 Rule 33 of the Code can
however be pressed into service to make
the award more effective or maintain the
award on other grounds or to make the
other parties to litigation to share the
benefits or the liability, but cannot be
invoked to get a larger or higher relief. For
example,
where
the
claimants
seek
compensation against the owner and the
insurer of the vehicle and the Tribunal
makes the award only against the owner, on
an appeal by the owner challenging the
quantum, the appellate court can make the
insurer jointly and severally liable to pay
the compensation, along with the owner,
even though the claimants had not
challenged the non-grant of relief against
the insurer. Be that as it may.

8. Where an appeal is filed
challenging the quantum of compensation,
irrespective of who files the appeal, the
appropriate course for the High Court is to
examine the facts and by applying the
relevant principles, determine the just
compensation.
If
the
compensation
determined by it is higher than the
compensation awarded by the Tribunal, the
High Court will allow the appeal, if it is by
the claimants and dismiss the appeal, if it is
by the owner/insurer. Similarly, if the
compensation determined by the High
Court is lesser than the compensation
awarded by the Tribunal, the High Court
will dismiss any appeal by the claimants for
enhancement, but allow any appeal by the
owner/insurer for reduction. The High
Court
cannot obviously
increase
the
compensation
in
an
appeal
by
the
owner/insurer
for
reducing
the
compensation, nor can it reduce the
compensation in an appeal by the claimants
seeking enhancement of compensation.

21. On the other hand, Ms. Kamini
Pandey, learned Counsel for the claimants
has argued that the compensation has been
rightly assessed, taking the deceased's age
as 54 years. The deceased, according to her,
was 54 years 2 months and 3 days on the
date of accident. It is urged that the best
evidence about the deceased's age is the
entry in his service-book and there is no
reason to doubt the same. It is also the
claimants'
contention
that
in
the
postmortem report, the age of the deceased
has been estimated to be 55 years,
approximately. This assessment of age for
the deceased supports the record of it in his
service-book. It is particularly argued that
876 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased is entitled to future prospects
as he was a permanent employee in
government service. Reliance in support of
the grant of future prospects has been
placed on the decision of the Supreme
Court in National Insurance Company
Limited v. Pranay Sethi and others,
(2017) 16 SCC 680. It is further argued
that the claimants have been undercompensated under the conventional heads
by the Tribunal. Learned Counsel for the
claimants, in this regard, has placed
reliance upon the guidance of the Supreme
Court in Magma General Insurance
Company Limited v. Nanu Ram alias
Chuhru Ram and others, (2018) 18 SCC
130. It is submitted by Ms. Kamini Pandey
that each of the claimants is entitled to
compensation for loss of consortium in the
sum of ₹40,000/- and the claimants are also
entitled to compensation towards loss of
estate and funeral expenses in the sum of
₹15,000/-, respectively.

22. As regards the compensation to be
awarded,
there
is
no
difficulty
in
considering the plea for reduction thereof,
since the appeal is one by the insurers.
There is no dearth of jurisdiction with this
Court to reduce the awarded compensation,
provided a case is made out by the insurers.
It, however, requires some consideration
whether in the absence of an appeal or a
cross-objection by the claimants, it is open
to this Court to enhance the compensation
awarded, should this Court reach a
conclusion in favour of enhancing it.

23. So far as the question of reducing
the compensation is concerned, this Court
may say at once that the submission of the
learned Counsel for the insurers that the
age of the deceased is not 54 years, leading
to application of a higher multiplier, is not
at all acceptable. The deceased was a
government
servant,
who
had
an
authoritative record of his age, maintained
by his employers in his service records.
There is no reason to disbelieve the record
of the deceased's age in his service-book. A
copy of his service-book is available on
record as Paper No. 29ग/3. The original of
the service-book was produced before the
Tribunal and the copy thereof filed was
proved by PW-3, Vishnu Pratap Singh
Chauhan, Senior Clerk in the office of the
Executive Engineer, Irrigation Department.
The
service-book
clearly
shows
the
deceased's recorded date of birth as
01.07.1957. This clearly works out to the
deceased being aged 54 years 2 months and
3 days on the date he died as a result of the
accident. The postmortem report also
estimates the deceased's age at about 55
years. This evidence is indeed enough to
hold the deceased's age to be 54 years. The
fact that PW-1 in her cross-examination has
said that the deceased was aged 20 years at
the time the witness and the deceased were
married in the year 1974, cannot be relied
upon to draw a different conclusion about
the deceased's age. The reason is that PW-1
in her cross-examination also says that she
does not know her husband's date of birth.
She has also said that she also does not
know her own date of birth. It is also said
that her father-in-law had read up to ClassV and was not gainfully employed. Though
she has said that she has read up to ClassVIII, the overall educational and socioeconomic background of parties would not
lead this Court to expect a very accurate
account from the witness about the
deceased's age on the date of the parties'
marriage or even the year when the parties
were married. On the basis of the estimated
dates given out by PW-1, the deceased's
recorded date of birth in his service record,
much corroborated by the medico-legal
evidence, cannot be disbelieved. The
11 All. The New India Assurance Co. Ltd., Civil Lines, Allahabad & Ors. Vs. Smt. Lajjawati &
 Ors.
877
contention of the learned Counsel for the
insurers on this score is, therefore, not
worthy of acceptance.

24. There is no other serious
contention apart from the age related
variation in the applicable multiplier, urged
on behalf of the insurers to reduce the
awarded compensation. It is, thus, evident
that no case for reducing the awarded
compensation is made out. This poses the
question before the Court, which Mr. Sahai
has argued very vociferously, whether on
an appeal by the insurer, compensation to
be awarded, can be enhanced unless there
be a cross-appeal or objection preferred by
the claimant? This Court has already
noticed the authority which the learned
Counsel for the insurers has pressed in aid
of the aforesaid submission with much
vehemence. It is the law laid down by the
Supreme Court in Ranjana Prakash. No
doubt, the law laid down in Ranjana
Prakash specifically holds what the
learned Counsel for the insurers canvasses,
but the principle there does not appear to be
the ruling precedent any longer. The
aforesaid change in judicial opinion is
evident from the pronouncement of the
three Judge Bench of their Lordships of the
Supreme Court in Surekha and Others v.
Santosh and Others, 2020 SCC OnLine
SC 1312. In Surekha (supra), it has been
held:

2. This appeal takes exception to
the judgment and order dated 04.01.2019
passed by the High Court of judicature at
Bombay, Bench at Aurangabad in First
Appeal No. 2564 of 2016, whereby the High
Court, even though agreed with the stand of
the appellants that just compensation amount
ought to be Rs. 49,85,376/- (Forty-Nine Lakh
Eighty-Five
Thousand
Three
Hundred
Seventy-Six Only), however, declined to
grant enhancement merely on the ground that
the appellants had failed to file cross-appeal.

3. By now, it is well-settled that in
the matter of insurance claim compensation
in reference to the motor accident, the court
should not take hyper technical approach and
ensure that just compensation is awarded to
the affected person or the claimants.

25. In working out the compensation,
what is essential to be reckoned is the
monthly income of the deceased. There is a
well proven salary certificate from the
deceased's employers, who are a department
of the State. The certificate is on record as
Paper No. 29 - ग / 9. It shows the gross
monthly income of the deceased to be a
figure of ₹52,041/-. The net income has been
shown as ₹44,941/- per mensem. The total
deductions include GPF, GIS and GVR, all of
which are in the nature of made to funds/
Group Insurance etc. The deduction to be
discounted from the income is one towards
income tax, which is a figure of ₹3000/- per
month. There is also on record a copy of the
deceased's
Form-16
submitted
by
the
employer to the Income Tax Authorities for
the Assessment Year 2011-12 (corresponding
to the Financial Year 2010-11). A perusal of
Form-16 relating to the deceased shows that
the total income tax deposited is a sum of
₹45,500/- only. The said form shows that for
11 months, a sum of ₹3000/- has been
deducted at source and in the 12th month, for
the Assessment Year 2011-12, a sum of
₹12,900/- has been deducted. Thus, the
Tribunal has determined the income tax
deduction from the deceased's annual income
at a figure of ₹45,500/-. The said deduction
towards income tax is unexceptionable.

26. The Tribunal has worked out the
compensation on the basis of a gross month
salary of ₹52,041/-. This figure has been
made the foundation to determine the
878 INDIAN LAW REPORTS ALLAHABAD SERIES
annual income of the deceased at a figure
of ₹6,55,065/-. From the said sum of
money, income tax has been deducted.

27. Now, from the said annual income
of the deceased, the Tribunal has deducted
a sum of ₹45,500/- towards income tax,
which meets our approval, as already said.
But, in addition to the deduction from the
annual income on account of income tax,
the Tribunal has further deducted a sum of
₹550/- per month, that is to say, a sum of
₹6,600/- for the year. This deduction has
been made on the basis that the deceased
was receiving a sum of ₹200/- per month
towards City Compensatory Allowance
(CCA) and a sum of ₹350/- per month
towards MCA. The monthly sum of CCA
and MCA works out to ₹550/- and adds up
to an annual figure of ₹6,600/-.