# The New India Assurance Co. Ltd v. Ram Ganesh & Ors

- **Citation:** (2019) 4 ILRA 545
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-18
- **Case number:** FAFO No. 4083 of 2011
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-ltd-v-ram-ganesh-ors-45014
- **Pages:** 3

## Headnote

Motor Vehicles Act (59 of 1988) -
Sections 166 & 168 - Selection of
Multiplier - Operative multiplier is 17 for
the age groups of 26 to 30 (Para 7)

First Appeal from Order dismissed. (E-5)

List of cases cited: -

## Text

4 All. The New India Assurance Co. Ltd. Vs. Ram Ganesh & Ors.
545
India Assurance Co. Ltd., (2015) 9 SCC
273, has held as under:-

(i) In the case of composite
negligence, plaintiff/claimant is entitled to
sue both or any one of the joint
tortfeasors and to recover the entire
compensation
as
liability
of
joint
tortfeasors is joint and several.

22. Thus Insurer cannot take plea
either of contributory negligence of
motorcyclist or that claim petition is
defective as no compensation has been
prayed from motorcyclist.

23. In view of the above discussion I
do not find any merit in the present
appeal. The impugned judgment and
award passed by the Tribunal requires no
interference. Accordingly, the appeal is
dismissed.

24. Office is directed to return back
the lower court record to Tribunal
forthwith
so
that
the
awarded
compensation be paid to the claimants in
view of the impugned award. The
statutory deposit of Rs. 25000/-, deposited
by the Insurer before this Court, if not
remitted, be also remitted to the Tribunal.

----------
(2019)12 ILR A545

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

FAFO No. 4083 of 2011

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Ram Ganesh & Ors. ...Respondents

Counsel for the Appellant:
Sri S.K. Mehrotra

Counsel for the Respondents:
Sri R.C. Maurya

Motor Vehicles Act (59 of 1988) -
Sections 166 & 168 - Selection of
Multiplier - Operative multiplier is 17 for
the age groups of 26 to 30 (Para 7)

First Appeal from Order dismissed. (E-5)

List of cases cited: -

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

2. National Insurance Company Vs Pranay
Sethi & others AIR 2017 SC 5157

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri S.K. Mehrotra, learned
counsel for the appellant, Sri R.C.
Maurya,
learned
counsel
for
the
respondents and perused the record.

2. This appeal has been filed by the
New Indian Assurance Co. Ltd. against
the
judgment
and
award
dated
17.09.2011, passed by Motor Accident
Claims Tribunal / Special Judge, E.C.
Act, Agra, in MACP No. 05 of 2010
(Ram Ganesh and others vs. P.S. Batesh
and others) by which the learned tribunal
has awarded the compensation of Rs.
5,05,000/- with 6% per annum simple
interest from the date of filing of the
appeal.

3. Aggrieved by the aforesaid
judgment and award, the present appeal
has been filed and the impugned judgment
546 INDIAN LAW REPORTS ALLAHABAD SERIES
has been challenged on the ground that
the accident in question did not occur due
to rash and negligent driving of the driver
of motorcycle nor the involvement of the
motorcycle in accident was established.
There was contributory negligence of the
deceased and this fact has not been
considered. The learned Tribunal assumed
Rs. 30,000/- income of the deceased
whereas, there was no evidence to that
effect. The notional income should have
been only Rs. 15,000/- annual. After
investigation, the police has submitted
final report as no accident was committed
by the said motorcycle.

4. During arguments, the learned
counsel for the appellant has submitted
that the final report was submitted,
therefore, the said accident is not
supported by any charge sheet against the
driver of the offending motorcycle. In this
regard, the learned Tribunal has found on
the basis of evidence on record that even
if the final report was submitted by the
police, the protest application was filed
against the final report and the accused
has been summoned by the learned
Magistrate.
Therefore,
the
learned
Tribunal has concluded that the fact that
final report was filed, will not render any
benefit to the Insurance Company.
Learned Tribunal has also found that the
oral
testimony
established
that
the
accident took place because of rash and
negligent driving of the driver of the
motorcycle and because no evidence was
given from the side of opposite parties to
prove contributory negligence, therefore,
the driver of the motorcycle was alone
responsible for the accident in which the
wife of the claimant died out of injuries.

5. Another argument is with regard
to determination of the income of the
deceased. It appears that the learned
Tribunal has assessed the income of the
deceased to be Rs. 100/- per day on
notional basis and Rs. 2500/- monthly
considering that if a simple labourer will
earn for 25 days, he would earn Rs.
25,00/- per month. I do not find any
illegality
or
perversity
in
the
determination of the income of the
deceased. As such, the income of the
deceased was considered to Rs. 30,000/-
per year and looking to the strength of the
family, 1/3 was deducted against the
personal expenses. It is pertinent to
mention that besides the husband, the
deceased was having four children.
Therefore, the deduction is also adequate
and the annual income for the purpose of
determination
of
compensation
after
deducting 1/3rd against the personal
expenses of deceased, comes to Rs.
20,000/- in a year.

6. Learned Tribunal has determined
the age of the deceased to be 27 years and
in the said age, multiplier of 17 has been
correctly applied as in view of the
decision in Sarla Verma vs Delhi
Transport Corporation (2009) 6 SCC
121, the multiplier from the age of 26 to
30 years is 17. The Supreme Court has
laid down as below:

"We therefore hold that the
multiplier to be used should be as
mentioned in column (4) of the Table
above (prepared by applying Susamma
Thomas, Trilok Chandra and Charlie),
which starts with an operative multiplier
of 18 (for the age groups of 15 to 20 and
21 to 25 years), reduced by one unit for
every five years, that is M-17 for 26 to 30
years, M-16 for 31 to 35 years, M-15 for
36 to 40 years, M-14 for 41 to 45 years,
and M-13 for 46 to 50 years, then reduced
4 All. Smt. Komal Vs. Arvind Kumar
547
by two units for every five years, that is,
M-11 for 51 to 55 years, M-9 for 56 to 60
years, M-7 for 61 to 65 years and M-5 for
66 to 70 years."

7. It is clear from the above
observation that between the age of 26 to
30, the available multiplier is 17. This has
further been affirmed on the point of
multiplier by the Hon'ble Apex Court in
the
case
of
National
Insurance
Company vs. Pranay Sethi & others,
AIR 2017 SC 5157. The learned Tribunal
has determined the age of the deceased to
be 27 years, hence, the multiplier of 17
has correctly been used. Applying the
multiplier of 17, the amount of Rs.
20000/- yearly comes to a total amount of
Rs. 340000/-.

8. In Sarla Verma (supra), it has
been held by the Supreme Court that a
proceeding before the Tribunal is in the
nature of inquiry in which a very few
thing is required to be established. The
Court has observed as under :-

"Basically only three facts need
to be established by the claimants for
assessing compensation in the case of
death: (a) age of the deceased; (b) income
of the deceased; and the (c) the number of
dependents. The issues to be determined
by the Tribunal to arrive at the loss of
dependency are (i) additions/deductions
to be made for arriving at the income; (ii)
the deduction to be made towards the
personal living expenses of the deceased;
and (iii) the multiplier to be applied with
reference of the age of the deceased."

9. The amount of expenses for
treatment was established on the basis of
medical bills etc. for a sum of Rs.
1,58,027/- and adding the amount under
conventional head, the total amount which
was determined by the learned Tribunal
was Rs. 5,05,000/-. As such, the amount
cannot be said to be in the higher side and
if the principle laid down in Sarla Verma
(supra) and Pranay Sethi (supra) are
made
applicable,
the
amount
of
compensation must have been much
more, therefore, there is no reason for the
appellant to be aggrieved as amount of
compensation is much in lower side.

10. In view of the above, I do not
find any force in the appeal and the appeal
is liable to be dismissed.

11. Accordingly, the appeal is
dismissed. Interim order, if any, stands
vacated.

12. The office is directed to send
back the lower court record with the
certified copy of this judgment to the
Tribunal concerned for information and
necessary compliance.

13. The amount of Rs. 25000/-
deposited at the time of filing of appeal be
remitted back to the learned Tribunal to
be adjusted against the awarded amount.
----------

(2019)12 ILR A547

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 739 of 2017

Smt. Komal ...Appellant
Versus
Arvind Kumar ...Respondent