# The New India Assurance Co. Ltd. Insurance Company/Defendant v. Sunil Kumar Dwivedi & Ors

- **Citation:** (2022) 12 ILRA 734
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-01
- **Case number:** First Appeal From Order No. 2397 of 2016
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-ltd-insurance-company-defendant-v-sunil-kumar-48027
- **Pages:** 8

## Headnote

A. Civil Law - Motor Accident Claim -
Motor Vehicles Act, 1988 - Contributory
Negligence - deceased was travelling in
the Wagon R, which was being driven in
its lane at 80 km per hour on the Yamuna
Expressway in the morning hours
-
offending truck was moving in another
lane - truck driver suddenly swerved into
the lane of the WagonR at a very fast
speed and abruptly halted - He did not
alert the driver of the WagonR before
changing lanes - driver of the Wagon-R
had no time and opportunity to stop his
car or take safety measures to prevent the
accident - negligence was entirely on part
of the offending truck driver and he was
fully
responsible
for
the
accident
-
Negligence on part of the WagonR driver
is not proved - offending driver had a valid
driving license on the date of the accident
- tribunal erred by imposing contributory
negligence liability of 30% on the driver
of the WagonR - finding reversed -
insurance company liable to pay the full
compensation

B. Civil Law -Motor Accident Claim -
Motor Vehicles Act, 1988 - computation of
the compensation - Salary of the deceased
- House Rent Allowance - deceased was an
Assistant
Teacher
in
a
government
primary
school
-
tribunal
unlawfully
deducted
the
House
Rent
Allowance
amount from the salary of the deceased -
12 All. The New India Assurance Co. Ltd. Vs. Sunil Kumar Dwivedi & Ors.
735
House Rent Allowance has to be treated
as part of salary of the deceased while
computing the compensation - Deduction
towards personal expenses - deceased
had four dependants - amount which is
liable to be deduction towards personal
expenses of the deceased is 1/4th -
Multiplier - age of the victim was 38 years
- applicable multiplier applicable as per
the holdings in Sarla Verma and Pranay
Sethi is 15 (Para 26 - 33)

Allowed. (E-5)

List of Cases cited:

## Text

734 INDIAN LAW REPORTS ALLAHABAD SERIES

15. While the provision of Section 8 is
mandatory and obligates the court to refer the
parties to arbitration where the subject matter
of dispute is covered by arbitration agreement,
it no where imposes any restriction on a party
in invoking the arbitral machinery and getting
the lis decided. In the instant case, although the
trial court while deciding the issue relating to
bar under Section 8 had rejected the plaint
without referring the parties to arbitration and
to that extent it's order is erroneous, but that in
no manner was an impediment in invoking the
mechanism of redressal viz. arbitration agreed
to by the parties themselves. In fact, subsection (3) of Section 8 when it provides that
"notwithstanding that an application has been
made under sub-section (1) and that the issue
is pending before the judicial authority, an
arbitration may be commenced or continued
and an arbitral award made" is conclusive of
the legislative intent that there is no embargo
for a party to approach the arbitral tribunal for
getting the dispute decided during pendency of
the suit. It would be an ideal scenario if the
parties themselves respect their contractual
commitment and approach the arbitrator
without the judicial authority compelling them
to do so under Section 8 of the Act. The
submission of learned counsel for the
appellant is inherently contrary to the
legislative intent and cannot be countenanced
and hence rejected.

16. The appeal lacks merit and is
dismissed.
----------
(2022) 12 ILRA 734
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2022

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 2397 of 2016
With
First Appeal From Order No. 2697 of 2016 &
2507 of 2016

The New India Assurance Co. Ltd.
 ...Insurance Company/Defendant Appellant
Versus
Sunil Kumar Dwivedi & Ors.
 ...Claimants/Respondents

Counsel for the Appellant:
Sri Rahul Sahai

Counsel for the Respondents:
Sri Nigamendra Shukla, Sri Rakesh Kumar
Porwal, Sri Ram Singh

A. Civil Law - Motor Accident Claim -
Motor Vehicles Act, 1988 - Contributory
Negligence - deceased was travelling in
the Wagon R, which was being driven in
its lane at 80 km per hour on the Yamuna
Expressway in the morning hours
-
offending truck was moving in another
lane - truck driver suddenly swerved into
the lane of the WagonR at a very fast
speed and abruptly halted - He did not
alert the driver of the WagonR before
changing lanes - driver of the Wagon-R
had no time and opportunity to stop his
car or take safety measures to prevent the
accident - negligence was entirely on part
of the offending truck driver and he was
fully
responsible
for
the
accident
-
Negligence on part of the WagonR driver
is not proved - offending driver had a valid
driving license on the date of the accident
- tribunal erred by imposing contributory
negligence liability of 30% on the driver
of the WagonR - finding reversed -
insurance company liable to pay the full
compensation

B. Civil Law -Motor Accident Claim -
Motor Vehicles Act, 1988 - computation of
the compensation - Salary of the deceased
- House Rent Allowance - deceased was an
Assistant
Teacher
in
a
government
primary
school
-
tribunal
unlawfully
deducted
the
House
Rent
Allowance
amount from the salary of the deceased -
12 All. The New India Assurance Co. Ltd. Vs. Sunil Kumar Dwivedi & Ors.
735
House Rent Allowance has to be treated
as part of salary of the deceased while
computing the compensation - Deduction
towards personal expenses - deceased
had four dependants - amount which is
liable to be deduction towards personal
expenses of the deceased is 1/4th -
Multiplier - age of the victim was 38 years
- applicable multiplier applicable as per
the holdings in Sarla Verma and Pranay
Sethi is 15 (Para 26 - 33)

Allowed. (E-5)

List of Cases cited:

1. Nishan Singh & ors. Vs Oriental Insurance
Company Ltd. & ors. 2018 (6) SCC 765

2. Sarla Verma (Smt) & ors. Vs Delhi Transport
Company & anr. 2009 (6) SCC 121

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

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

1. Heard Shri Aditya Singh Parihar,
learned counsel holding brief of Shri Rahul
Sahai, learned counsel for the Insurance
Company, Shri Rakesh Kumar Porwal,
learned counsel for the owner of the
vehicle, Shri Nigamendra Shukla, learned
counsel for the driver and Shri Ram Singh,
learned counsel for the claimants.

I. INTRODUCTION

2. The three appeals arise out of the
same accident and an award made by the
learned Motor Accident Claims Tribunal/
Additional District Judge, Fatehpur, in
M.A.C.P. No. 256 of 2014 (Sunil Kumar
Dwivedi and others Vs Rajesh Kumar and
others)
dated
25.04.2016
granting
compensation to the claimants for the death
of the deceased in the motor accident by
partly allowing their claim. The appeals
have been filed by the Insurance Company,
claimants and owner of the vehicle
respectively and are being decided by a
common judgement.

II. Case of the claimants and
respondents before the learned tribunal:

3. Briefly the case of the claimants
before the learned tribunal was that the
deceased died of injuries sustained in an
accident which occurred on 23.04.2014 and
was caused by the rash and negligent
driving of the driver of Truck No. UP 78
CN 7781. The deceased was travelling in a
WagonR car being driven by her husband
on the Yamuna Expressway when the
accident occurred. The claimants were
dependant on the deceased. The insurance
company resisted the claim by filing a
written statement. Both parties adduced
evidence in the trial.

III. Compensation awarded by the
learned tribunal:

4. The learned tribunal in the
impugned judgement dated 25.04.2016
awarded compensation as under:

Sr.
No
.
Heads
Amount Awarded
by the tribunal
1.
Monthly
Income (A)
31,740/-
2.
Annual
Income (B)
(Ax12=B)
3,80,880/-
3.
Future
Prospects (C)
50% of 3,80,880/-
=1,90,440/-
4.
Annual
Income +
Future
Prospects
(B+C=D)
3,80,880+1,90,440/
-
=5,71,320/-
736 INDIAN LAW REPORTS ALLAHABAD SERIES
5.
Deduction
towards
personal
expenses (E)
(1/3 of D)
1/3 of 5,71,320/-
=1,90,440/-
6.
Annual Loss
of
Dependency
(F)
(D-E =F)
5,71,320-1,90,440/-
= 3,80,880/-
7.
Multiplier
(G)
16
8.
Total loss of
dependency
(F x G)
3,80,880 x 16
= 60,94,080/-
9.
Loss of love
& Affection
5000/-
10.
Loss of
Estate

11.
Funeral
5000/-
12.
Deduction
towards
Contributory
negligence
30%
13.
Total
compensatio
n
61,04,080 - 30%
= 42,72,856/-
14.
Interest
7%

IV. Issues for Consideration:

5. After advancing their arguments,
learned counsels for the respective parties
agree that the following questions fall for
consideration in these appeals:-

A. Whether the driver of the
offending truck was in possession of a valid
driving license at the time of the accident?
Whether the truck owner was liable to pay
compensation ?

B.
Whether
there
was
any
contributory negligence on part of the driver
of the Wagon-R?

C. Whether all the claimants were
dependants of the deceased?

D. Whether while determining the
compensation the learned tribunal had
lawfully computed the amounts under various
heads like multiplier, consortium amount,
deduction towards personal expenses and
interest?

E. What is the compensation to
which the claimants are lawfully entitled?

IV A. Issue of validity of license of the
truck driver and liability of the truck
owner:

6. The learned tribunal in the impugned
award found for the insurance company and
against the owner on the issue of driving
license. The learned tribunal references the
recital in the transport authority report
(document 49-Ga-1) that the licence was in
the name of one Om Prakash S/o Ram
Prakash. On this footing the learned tribunal
held that the driving license of the driver
Santosh Kumar S/o Shivram presented by the
owner as evidence was fake. The learned
tribunal added these grounds to support the
conclusion. The driver had used the said
license in the bail proceeding, and for release
of the offending vehicle.

7. The driver Santosh Kumar had
specifically asserted in the written statement
that his driving license bearing number
133895/SRA/8 was issued by the licensing
authority at Sant Ravidas Nagar. The license
was valid from 25.10.2012 to 24.10.2015 for
driving heavy transport vehicles and was
effective on the date of the accident. The
aforesaid driving license of the driver was
also produced by him during the trial at the
instance of the insurance company and upon
specific order of the learned tribunal dated
10.02.2016. The driver Santosh Kumar had
12 All. The New India Assurance Co. Ltd. Vs. Sunil Kumar Dwivedi & Ors.
737
affirmed and proved the said license
produced by him before the learned tribunal.

8. The insurance company never
confronted the driver in the witness box
regarding the validity of the aforesaid
license, nor was any challenge otherwise
laid to its veracity. The said driving license
was
unrebutted
throughout
the
trial
proceedings.

9. The said driving license marked as
Paper no. 78-ga was also noticed in the
impugned award. However the learned
tribunal neglected to return a finding on its
validity or otherwise. This failure reflects of
non application of mind by the learned tribunal
to relevant facts and evidences in the record.

10. It is noteworthy that the stand of the
driver that he had never used the license
produced by the owner for enlargement on bail
or for release of the vehicle remained
unimpeached.

11. The insurance company failed to
discharge its burden of proving the invalidity
of the said driving license.

12. The evidence in the record
establishes that the offending driver had a
valid driving license on the date of the
accident. The issue of the driving license is
decided in favour of the owner and against
insurance company.

13. The finding in the impugned award
that the driver of the offending vehicle did not
have a valid driving license is unsustainable in
law and is set aside.

14. The truck was insured. There was no
breach of the insurance policy. The truck
owner is absolved of all liability to pay the
compensation.

IV B. Issue of contributory negligence:

15. The learned tribunal has found the
Wagon-R
driver
responsible
for
contributory negligence, and assessed his
liability for the same at 30%.

16. The eye witness PW-1 Sunil
Kumar testified that on the fateful day he
was driving the WagonR in his lane on the
Yamuna Expressway. There was no other
vehicle ahead of him in that lane. The
offending truck was in another lane. The
truck driver rashly changed lanes and
suddenly halted in front of his car causing
the collision. The F.I.R. was lodged with
promptitude. Credit of this witness was not
shaken under cross examination. His
version is liable to be accepted as true.

17. The second eye witness to the
accident Santosh Kumar the driver of the
offending vehicle denied any negligence.
He deposed that the truck was standing at
one side on the road when the Wagon-R
drove into it negligently. Under cross
examination he could not account for his
lapses and his testimony was substantially
impeached. The witness did not lodge an
FIR. He fled after the accident. His denial
of negligence is an afterthought. The credit
of the witness was shaken and his
testimony is unworthy of belief.

18. The deceased was travelling in the
Wagon R. The Wagon-R vehicle was being
driven in its lane at 80 km per hour on the
Yamuna Expressway in the morning hours
of the fateful day. Good visibility can be
inferred since there is no contrary evidence.
There was no vehicle ahead of the Wagon
R in the said lane.

19. At this stage it would be apposite
to discuss the judgment relied upon by Sri
Aditya Singh Parihar, learned counsel for
738 INDIAN LAW REPORTS ALLAHABAD SERIES
the insurance company in Nishan Singh
and
others
Vs
Oriental
Insurance
Company Ltd. and others. Nishan Singh
(supra) is distinguishable on facts and not
applicable to this case. Firstly, in Nishan
Singh (supra) the vehicles were tailing
each other. In this case there was no traffic
ahead in the lane in which the WagonR was
moving. Secondly the width of the road in
Nishan Singh (supra) was about 14 ft. The
Yamuna Expressway is much broader.

20. Safe driving norms define the
duty to care of a driver. Two of the safety
precautions which must be observed by a
driver are: a minimum distance between
two moving vehicles should be maintained
and maximum speed limit has to be strictly
adhered to. The permissible speed limits
and terms of other safety precautions and
compliance thereof will be determined
upon enquiry in the facts and circumstances
of a case. The germane considerations in
such enquiry include the breadth and
condition of the road, volume of traffic,
visibility conditions.

21. The Yamuna Expressway is a well
constructed highway of large breadth with
several lanes. Multiple lane highways like
Yamuna Expressway have been created for
speedier connectivity with road conditions
which
facilitate
faster
movement
of
vehicles. Lane driving norms ease traffic
flow and are designed to prevent accidents.
The permissible speed limits on these
highways are higher than other roads.

22. In these facts and circumstances,
particularly absence of traffic in the lane,
and good road and visibility conditions,
speed of 80 km. per hour on the Yamuna
Expressway
was
not
excessive.
The
offending truck was moving in another
lane. The truck driver suddenly swerved
into the lane of the WagonR at a very fast
speed and abruptly halted. He did not alert
the driver of the WagonR before changing
lanes. The offending driver failed to
observe traffic rules and take reasonable
care. The driver of the Wagon-R had no
time and opportunity to stop his car or take
safety measures to prevent the accident.

23. From facts and evidences in the
record and appraised in the preceding
discussion, these facts are proved by the
evidential standard of preponderance of
probability. The negligence was entirely on
part of the offending truck driver and he
was fully responsible for the accident.
Negligence on part of the WagonR driver is
not proved. The learned tribunal erred in
facts and law by imposing contributory
negligence liability of 30% on the driver of
the WagonR. The finding is reversed. The
insurance company is liable to pay the full
compensation.

IV C. Issue of dependancy of the
claimants on the deceased:

24. The claimants have specifically
stated their dependancy on the deceased
with all material facts in their pleadings.
These facts have not been specifically
refuted by the insurance company. The bald
and general denial by the insurance
company is not worthy of acceptance.
Infact, the insurance company did not
examine the P.W. 1 on the issue of
dependancy in the witness box.
25. The claimants were dependant on the
deceased and are entitled to compensation
on account of her death.

IV D. Issue of computation of the
compensation under various heads:

a. Salary of the deceased
12 All. The New India Assurance Co. Ltd. Vs. Sunil Kumar Dwivedi & Ors.
739

26. The deceased was an Assistant
Teacher in a government primary school. She
was drawing a salary of Rs. 34,500/- per
month. House Rent Allowance as per her
service entitlement was a component of her
salary. The tribunal has unlawfully deducted
the House Rent Allowance amount from the
salary
of
the
deceased.
House
Rent
Allowance has to be treated as part of salary
of the deceased while computing the
compensation.

b.
Deduction
towards
personal
expenses:

27. The deceased had four dependants.
The deduction of 1/3rd made towards
personal expenses made by the learned
tribunal was excessive. The amount which is
liable to be deduction towards personal
expenses of the deceased is 1/4th.

28. The discussion has the advantage of
authorities in point. While deciding the issue
of deduction of personal expenses, the
Supreme Court in Sarla Verma (Smt) and
others Vs Delhi Transport Company and
another held:

"30. Though in some cases the
deduction to be made towards personal and
living expenses is calculated on the basis of
units indicated in Trilok Chandra [(1996) 4
SCC 362] , the general practice is to apply
standardised deductions. Having considered
several subsequent decisions of this Court,
we are of the view that where the deceased
was married, the deduction towards personal
and living expenses of the deceased, should
be one-third (1/3rd) where the number of
dependent family members is 2 to 3, onefourth (1/4th) where the number of dependent
family members is 4 to 6, and one-fifth
(1/5th) where the number of dependent
family members exceeds six."

29. Sarla Verma (supra) was later
followed
with
approval
in
National
Insurance Company Limited Vs. Pranay
Sethi and others (See Pr. 37).

C. Issue of multiplier

30. There is merit in the submission
of Sri Aditya Singh Parihar learned counsel
that an incorrect multiplier of 16 has been
used by the learned tribunal. The learned
counsels for other parties fairly concede
point. The age of the victim was 38 years.
The applicable multiplier applicable as per
the holdings in Sarla Verma (supra) and
Pranay Sethi (supra) is 15.

31. The compensation has to be
recalculated by applying multiplier of 15.

d.
Calculation
of
Conventional
Heads:

32. The amount determined under
conventional heads in the impugned award
is at variance with Pranay Sethi (supra).
The claimants are entitled to the sum fixed
in Pranay Sethi (supra) which holds as
under:

"54. ......The conventional and
traditional heads, needless to say, cannot be
determined on percentage basis because
that would not be an acceptable criterion.
Unlike determination of income, the said
heads
have
to
be
quantified.
Any
quantification must have a reasonable
foundation. There can be no dispute over
the fact that price index, fall in bank
interest, escalation of rates in many a field
have to be noticed. The court cannot
remain oblivious to the same. There has
been a thumb rule in this aspect. Otherwise,
there
will
be
extreme
difficulty
in
determination of the same and unless the
740 INDIAN LAW REPORTS ALLAHABAD SERIES
thumb rule is applied, there will be immense
variation lacking any kind of consistency as a
consequence of which, the orders passed by
the tribunals and courts are likely to be
unguided. Therefore, we think it seemly to fix
reasonable sums. It seems to us that
reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and
funeral expenses should be Rs. 15,000/-, Rs.
40,000/- funeral expenses should be Rs.
15,000/-, Rs. 40,000/- And Rs. 15,000/-
respectively."

e. Interest

33. Interest of 7% and the manner of
payment decided by the learned tribunal is
just and lawful and does not call for
interference.

IV E. Determination of Compensation
to which claimants- respondents are
entitled:

34. In wake of the preceding discussion,
the amount of compensation to which the
claimants are entitled, is tabulated hereunder:

i. Date of Accident - 22/23.04.2014

ii. Name of Deceased - Smt.
Pratibha Dwivedi

iii. Age of the deceased - 38 years

iv. Occupation of the Deceased -
Assistant Teacher

v. Income of the deceased -
34,500.00

vi. Name, Age and Relationship of
Claimants with the deceased:

Sr.
No.
Name
Age
Relation
1.
Sunil Kumar
Dwivedi
43
Husband
2.
Km. Janhvi
Dwivedi
14
Daughter
3.
Vijyant
Dwivedi
10
Son
4.
Smt. Munni
Devi
60
Mother-inlaw
5.
Ramsumer
Dwivedi
65
Father-inlaw

vii. Computation of Compensation

Sr.
No.
Heads
Amount (in
Rupees)
1.
Monthly Income
(A)
34,500/-
2.
Annual Income
(B)
(A x 12 = B)
4,14000/-
3.
Future Prospects
(C)
50% of 4,14000/-
= 2,07,000/-
4.
Annual Income +
Future Prospects
(B+C=D)
4,14000.00 +
2,07,000/-
= 6, 21,000
5.
Deduction towards
personal expenses
(E) (1⁄4 of D)
1⁄4 of 6,21,000/-
= 1,55,250/-
6.
Annual Loss of
Dependency (F)
(D-E = F)
6,21,0001,55,250/-
= 4,65,750/-
7.
Multiplier (G)
15
8.
Total loss of
dependancy
(F x G)
4,65,750 x 15
= 69,86,250/-
9.
Conventional
Heads:
(a) Loss of
consortium
(b) Loss of Estate
(c) Funeral
Expenses
70,000/-
10.
Total
compensation
70,56,250/-
11.
Interest
7%

VI. Conclusions & Directions:

35. The amount of compensation to
which the deceased has been found entitled
12 All. Suresh @ Lakshmi Vs. State of U.P.
741
shall be deposited by the Insurance
Company 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.

36. The amount deposited by
appellant Rajesh, in FAFO No. 2507 of
2016, who is the owner of the vehicle
before this court shall be refunded to him.
The security deposited by the said appellant
in the wake of the order passed by this
Court shall be discharged.

37. These appeals are finally decided as above.
----------
(2022) 12 ILRA 741
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE SURENDRA SINGH-I, J.

Jail Appeal No. 325 of 2018

Suresh @ Lakshmi ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri C.L. Chaudhary, Amicus

Counsel for the Opposite Party:
Sri Amit Sinha, A.G.A.

Criminal Law - Criminal Procedure Code,
Section - 313 - Indian Penal Code, 1860 -
Sections 201, 302 & 404 - Jail Appeal -
challenging the order of Conviction -
offence of murder - one eye witnesses -
last seen has not been proved - convicted
only
on
the
basis
of
circumstantial
evidences - which are not good enough -
as per the law laid down by the Hon'ble
Apex court the prosecution has utterly
failed to established its case beyond all
the reasonable doubts and the chain of
events - appeal succeeds and is allowed.
(Para -10, 11, 18, 20)

Appeal Allowed. (E-11)

List of Cases cited:

1. Sattatiya @ Satish Rajanna Kartalla Vs St. of
Mah. (2008(3) SCC 210),

2. S. Govindraraju Vs St. of Karn. (2013 (15)
SCC 315),

3. Devi Lal Vs St. of Raj. (Criminal Appeal No.
148/2010 decided on Dt. 08.01.2019),

4. Sujit Biswas Vs St. of Assam (2013 (12) SCC
406),

5. Raja alias Rajinder Vs St. of Har. (2015(11)
SCC 43),

6. Ram Niwas Vs St. of Har. (2022 Law Suit (SC)
942).

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This jail appeal arises out of
impugned judgment and order dated
27.03.2017 passed by Additional Sessions
Judge/Court No. 1, Pilibhit in Sessions
Trial No. 341 of 2014 arising out of Crime
No. 473 of 2014 convicting the accused
appellant under Section 302 of I.P.C. and
sentencing him to undergo imprisonment
for life with a fine of Rs. 20,000/-, in
default thereof, to further undergo six
months additional imprisonment; under
Section 201 of I.P.C. to undergo five years
imprisonment with a fine of Rs. 5000/-, in
default thereof, to undergo two months
additional imprisonment, with a direction
that all the sentences shall run concurrently.

2. As per prosecution case, on
15.06.2014, one unknown dead body was