# The Oriental Insurance Company Limited v. Smt. Parul Devi & Ors

- **Citation:** (2019) 4 ILRA 994
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-15
- **Case number:** FAFO No. 2166 of 2015
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-company-limited-v-smt-parul-devi-ors-44976
- **Pages:** 7

## Headnote

A. Civil Law - Motor Accident claim - Motor
Vehicles Act (59 of 1988) - Section 168 -
Composite
negligence
Vs
Contributory
negligence - Distinction

„Composite negligence‟ - where a person is injured
without any negligence on his part but as a
combined effect of the negligence of two other
persons, it is a case of composite negligence. In
such a case, each wrongdoer is jointly and severally
liable to the injured for payment of the entire
damages and the injured person has the choice of
proceeding against all or any of them - injured
need not establish extent of responsibility of each
wrongdoer separately, nor it is necessary for Court
to determine extent of liability of each wrongdoer
separately.
„Contributory negligence‟ - where a person
suffers injury, partly due to the negligence on
the part of another person or persons and
partly as a result of his own negligence, then
the negligence on the part of the injured
which contributed to the accident is referred to
as his contributory negligence. In such case
the damages recoverable by him in respect of
the injuries stands reduced in proportion to his
contributory negligence (Para 11)

B. Civil Law - Motor Accident claim -
Motor Vehicles Act (59 of 1988) -
Composite negligence of drivers of two
vehicles - Accident between a tanker and
a Scorpio four wheeler- Evidence driver
of the tanker vehicle driving rashly &
negligently - No evidence that driver of
Scorpio driving rashly and negligently -
Not making the owner or driver of the
Scorpio a party cannot cause prejudice
to the appellant (Para 12)

C. Civil Law - Motor Vehicles Act (59 of
1988) - Sections 166 & 168 - Selection
of Multiplier - Deceased aged about 42
years - Operative multiplier is 14 for the
age group of 41 to 45 years (Para 17)

D. Civil Law - Motor Vehicles Act (59 of
1988) - Sections 166, 168 - Future
prospects - Determination - Deceased
had permanent job, working as Store
Officer - Deceased aged about 42 years -
Addition of 30% of actual salary to the
income of the deceased (Para 18 & 19)

E. Civil Law - Motor Accident claim - U.P.
Motor Vehicle Rules, 1998 - Rule 220A(2)- Determination of compensation -
Deduction
for
personal
and
living
expense - 1/4th where dependent family
members are 4 to 6 - Minor dependent to
be counted as half - Half dependent
should be considered to be one in view
of the beneficial purpose of the law

Held - Number of dependent shown in the
petition 5 - UP Amended Motor Vehicle Rules,
2011 provides that two minors will make one
unit in determining the number of dependents
- considering that three of them were minor,
this number will come to three and half -
4 All. The Oriental Insurance Company Ltd. Vs. Smt. Parul Devi & Ors.
995
logically the remainder half dependent should
be considered to be one in view of the
beneficial purpose of the law which has been
enacted as solace in favor of the claimant and
the deduction against personal expenses in
case of more than 3 dependents, but not 4
dependents, as is the case here where the
dependents are three and half, the deduction
of 1/4th in place of 1/3rd is justified. (Para 13
& 15)

First Appeal from Order disposed of. (E-5)

List of cases cited: -

## Text

994 INDIAN LAW REPORTS ALLAHABAD SERIES

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

16.

Office
is
directed
to
communicate the certified copy of the
order to the learned court below for
necessary compliance.
----------
(2019)12 ILR A994

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2019
BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

FAFO No. 2166 of 2015

The Oriental Insurance Company Limited
 ...Appellant
Versus
Smt. Parul Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Arvind Kumar, Sri A.C. Pandey

Counsel for the Respondents:
Sri Rama Nand Pandey

A. Civil Law - Motor Accident claim - Motor
Vehicles Act (59 of 1988) - Section 168 -
Composite
negligence
Vs
Contributory
negligence - Distinction

„Composite negligence‟ - where a person is injured
without any negligence on his part but as a
combined effect of the negligence of two other
persons, it is a case of composite negligence. In
such a case, each wrongdoer is jointly and severally
liable to the injured for payment of the entire
damages and the injured person has the choice of
proceeding against all or any of them - injured
need not establish extent of responsibility of each
wrongdoer separately, nor it is necessary for Court
to determine extent of liability of each wrongdoer
separately.
„Contributory negligence‟ - where a person
suffers injury, partly due to the negligence on
the part of another person or persons and
partly as a result of his own negligence, then
the negligence on the part of the injured
which contributed to the accident is referred to
as his contributory negligence. In such case
the damages recoverable by him in respect of
the injuries stands reduced in proportion to his
contributory negligence (Para 11)

B. Civil Law - Motor Accident claim -
Motor Vehicles Act (59 of 1988) -
Composite negligence of drivers of two
vehicles - Accident between a tanker and
a Scorpio four wheeler- Evidence driver
of the tanker vehicle driving rashly &
negligently - No evidence that driver of
Scorpio driving rashly and negligently -
Not making the owner or driver of the
Scorpio a party cannot cause prejudice
to the appellant (Para 12)

C. Civil Law - Motor Vehicles Act (59 of
1988) - Sections 166 & 168 - Selection
of Multiplier - Deceased aged about 42
years - Operative multiplier is 14 for the
age group of 41 to 45 years (Para 17)

D. Civil Law - Motor Vehicles Act (59 of
1988) - Sections 166, 168 - Future
prospects - Determination - Deceased
had permanent job, working as Store
Officer - Deceased aged about 42 years -
Addition of 30% of actual salary to the
income of the deceased (Para 18 & 19)

E. Civil Law - Motor Accident claim - U.P.
Motor Vehicle Rules, 1998 - Rule 220A(2)- Determination of compensation -
Deduction
for
personal
and
living
expense - 1/4th where dependent family
members are 4 to 6 - Minor dependent to
be counted as half - Half dependent
should be considered to be one in view
of the beneficial purpose of the law

Held - Number of dependent shown in the
petition 5 - UP Amended Motor Vehicle Rules,
2011 provides that two minors will make one
unit in determining the number of dependents
- considering that three of them were minor,
this number will come to three and half -
4 All. The Oriental Insurance Company Ltd. Vs. Smt. Parul Devi & Ors.
995
logically the remainder half dependent should
be considered to be one in view of the
beneficial purpose of the law which has been
enacted as solace in favor of the claimant and
the deduction against personal expenses in
case of more than 3 dependents, but not 4
dependents, as is the case here where the
dependents are three and half, the deduction
of 1/4th in place of 1/3rd is justified. (Para 13
& 15)

First Appeal from Order disposed of. (E-5)

List of cases cited: -

1. T.O. Antony Vs Karvarnan AIR 2008 SC
(Supp) 1646

2. APSRTC Vs K. Hemalatha AIR 2008 SC 2851

3. Sarla Verma Vs Delhi Transport Corporation
Ltd AIR 2009 SC 3104

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

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

1. Heard Sri A.C. Pandey, learned
counsel for the appellant and Sri Rama
Nand Pandey, learned counsel for the
respondents. Perused the record attached
with this appeal from both sides.

2. This appeal has been filed by the
appellant - The Oriental Insurance Co. Ltd.
against the judgment and award dated
14.08.2013 passed by learned Additional
District Judge, Court No. 2/MACT, J.P.
Nagar in MACP No. 67 of 2007 by which the
compensation of Rs.30,75,048.00/- has been
awarded with the interest @6% from the date
of filing of claim petition to the claimantsrespondents.

3. Before the learned Tribunal, a
claim petition was filed by the petitioners
stating that on 20.7.2007 at about 1.00
PM in the village Allipur, near National
Highway, P.S. Gajraula, District J.P.
Nagar, an accident took place in which,
husband of claimant no. 1 and father of
claimant nos. 2 to 5 sustained injuries and
died. At the time of accident, the driver of
Tanker no. HR 37-B/4183 was being
driven by the driver very rashly and
negligently which dashed the Scorpio No.
UDS 0003/4528 coming from the side of
Delhi and the Scorpio overturned and fell
over the deceased Om Prakash Mishra by
which he sustained serious injuries and
while he was being taken for treatment, he
died on the way. At the time of accident,
the deceased was going on foot to the
Jubliant Company Ltd. where he was
working and when he reached near the
factory, the accident took place. At the
time of accident, the deceased was aged
about 42 years and was enough healthy
and he was working as Store Officer in
the said Company and was getting salary
of Rs.19,370/- monthly. On that basis, the
claim
petition
has
been
filed
for
compensation.

4.

The
appellant-Insurance
Company filed written statement before
the Tribunal stating that claimant should
establish the accident. At the time of
accident none of the drivers of both the
vehicles were having valid and effective
driving license. The accident took place
because of fault of driver of Scorpio and
owner of Scorpio and Insurance Company
have not been made party. The said
offending Tanker was not being driven
according to terms of insurance policy
and the Insurance Company is not liable
to pay any compensation.

5. The opposite party no. 2-M/S.
Maple Logistic Pvt. Limited Company
996 INDIAN LAW REPORTS ALLAHABAD SERIES
filed written statement denying the
allegation of claim petition and stating
that accident was not caused by the
alleged offending vehicle and the claim
petition has been filed on wrong facts. At
the time of accident, the driver of Tanker
was having valid and effective driving
license and the vehicle was ensured with
the Insurance Company and if it is
established that the accident took place
because of rashness and negligence of
driver of Tanker, the responsibility to pay
compensation is on Insurance Company.

6. The defendant no. 3 has not filed any
written statement and against him, the
proceeding has taken place ex-parte. The
defendant no. 4 Reliance General Insurance
Company Ltd. has filed written statement and
has stated that claimant has to establish the
accident. The driver of Scorpio has not been
made party nor he was having valid and
effective driving license at the time of
accident. The insurance with the Reliance
General Insurance Co. Ltd. shall be verified
and there is no responsibility to pay
compensation on the Insurance Company.

7. The following issues were framed
by the learned Tribunal, the English
version of the same are as under:

(1)Whether on 20.7.2007 at
about 1.00 PM Om Prakash Mishra was
going to the Juviliant Company where he
was working walking on the road and at
that time the Tanker no. S.R.-37B/4183
and Scorpio No. U.P. 5003/4528 dashed
to each other and the Scorpio fell upon
the deceased Om Prakash Mishra which
caused serious injuries to him and while
he was in the way for treatment, he died?

(II) Whether the accident took
place due to rash and negligent driving of
driver of Tanker no. HR 37-B/4182?

(III) Whether the accident was
caused due to negligence of both the
vehicles?

(IV) Whether Tanker no. HR 37B/4183 was ensured with the Insurance
Company and violated the terms of
Insurance Company?

(V) Whether Scorpio no. U.P.
5003/4528 was ensured with the opposite
party no. 4?

(VI) Whether the owners of
Scorpio violated the terms of Insurance
Company?

(VII) Whether both the vehicles
were driven by the drivers having valid
and effective license at the time of
accident?

(VIII) Whether the claimants
are entitled to get compensation, if yes,
for what amount and against whom?

8. The parties to the claim petition
gave evidence in terms of documents such
as, copy of FIR, driving license of driver
of offending vehicle, copy of insurance
policy, registration certificate, copy of
permit, salary certificate of deceased,
postmortem report, copy of site map, copy
of charge sheet, copy of High School
Certificate of deceased. P.W. 1- Smt.
Parul Devi, P.W. 2-Kapil Joshi and P.W.
3-Ram Chandra Pandey
have been
examined from the side of claimants. The
opposite parties have not given any
evidence, oral or documentary.

9. After hearing learned counsel for
both sides, the learned Tribunal passed
the impugned award aggrieved by which,
this appeal has been filed. The appellant
has submitted that no accident took place
by Tanker and the Scarpio overturned and
crushed the deceased. The accident took
place in the middle of the road and there
was contributory negligence of the other
vehicle. The driver of the Tanker was not
4 All. The Oriental Insurance Company Ltd. Vs. Smt. Parul Devi & Ors.
997
summoned even though an application
was given. Income was erroneously
determined and deduction of 1/4th in
place of 1/3rd was wrongly made against
personal expense.

10.

A
cross
objection/
application/cross-appeal has been filed by
the
respondents-claimants
that
the
Insurance
Company
has
wrongly
deducted a TDS of Rs. 268970/- and they
are entitled for return of that money with
interest.

11. The first submission of the
learned counsel to the appellant is that it
was a case of composite negligence of
two vehicles and the learned Tribunal
should have determined the percentage of
negligence of both and accordingly a
direction
for
apportionment
of
compensation to that extent should have
been
made.
In
T.O.
Antony
V.
Karvarnan, AIR 2008 SC (Supp) 1646
and APSRTC v K. Hemalatha, AIR
2008 SC 2851, the Supreme Court has
explained
the
law
of
composite
negligence and its impact on liability of
compensation. Where a person is injured
without any negligence on his part but as
a combined effect of the negligence of
two other persons, it is not a case of
contributory negligence but is a case of
composite
negligence.
Composite
negligence refers to the negligence on the
part of two or more persons. Where a
person is injured as a result of negligence
on the part of two or more wrongdoers, it
is said that the person was injured on
account of the composite negligence of
those wrongdoers. In such a case, each
wrongdoer is jointly and severally liable
to the injured for payment of the entire
damages and the injured person has the
choice of proceeding against all or any of
them. In such a case, the injured need not
establish the extent of responsibility of
each wrongdoer separately, nor it is
necessary for the Court to determine the
extent of liability of each wrongdoer
separately. On the other hand where a
person suffers injury, partly due to the
negligence on the part of another person
or persons, and partly as a result of his
own negligence, then the negligence on
the part of the injured which contributed
to the accident is referred to as his
contributory
negligence.
Where
the
injured is guilty of some negligence, his
claim for damages is not defeated merely
by reason of the negligence on his part but
the damages recoverable by him in
respect of the injuries stands reduced in
proportion to his contributory negligence.

12. In this case the learned tribunal
found on the basis of evidence on record
that it was the driver of the Tanker who
was driving the Tanker rashly and
negligently and dashed the Scarpio which
was coming from the opposite direction.
There is no evidence on record to take the
view that the driver of Scarpio was rash
and negligent. No evidence was given to
that effect from the side of the appellant
before the learned Tribunal. The site-map
prepared by IO during investigation also
shows that the Scarpio was coming from
the correct side and the Tanker dashed it
going towards the wrong side. Hence, the
submission in this regard appears to be
imaginary and hypothetical and has no
force. In view of this finding, not making
the owner or driver of the Scarpio a party
cannot cause prejudice to the appellant.

13. Another argument is with
regards to income of the deceased. The
learned Tribunal has assessed the monthly
income on the basis of the salary
998 INDIAN LAW REPORTS ALLAHABAD SERIES
certificate filed and proved by the Officer
of Company where he was working as
Commercial Officer according to which
monthly income was Rs.17496/- and
annually Rs. 209952/-. Therefore, the
income of the deceased was proved.
Thereafter, 1/4th has been deducted
against
personal
expenses.
The
submission of the learned counsel to the
appellant is that a deduction of 1/3rd
should have been made as the number of
dependent shown in the petition was 5,
but, considering that three of them were
minor, this number will come to three and
half. It has been argued that the UP
Amended Motor Vehicle Rules, 2011
provides that two minors will make one
unit in determining the number of
dependents. Even if it is so, the number of
dependents is more than three and as such
a deduction of 1/4th is absolutely correct,
as a deduction of 1/3rd is provided where
the number of dependents is 2 to 3 and in
case of 4 to 6 dependents, the deduction is
provided as 1/4th.

14. In fact, the UP Rules simply
adopts the principle laid down in Sarla
Verma
Vs.
Delhi
Transport
Corporation Ltd., AIR 2009 SC 3104
where it has been laid down by the
Supreme Court:

"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, the general practice is to apply
standardized
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 onethird (1/3rd) where the number of
dependent family members is 2 to 3, onefourth (1/4th) where the number of
dependant family members is 4 to 6, and
one-fifth (1/5th) where the number of
dependant family members exceed six."

15. In view of above, the deduction
appears to be appropriate as logically the
remainder half dependent should be
considered to be one in view of the
beneficial purpose of the law which has
been enacted as solace in favor of the
claimant and the deduction against
personal expenses in case of more than 3
dependents, but not 4 dependents, as is
the case here where the dependents are
three and half, the deduction of 1/4th in
place of 1/3rd is justified.

16. The next submission is with
regards to application of multiplier. The
learned Tribunal has determined the age
of the deceased to be 42 years on the basis
of his high school certificate and has
applied a multiplier of 15 in view of II
Schedule. In Sarla Verma (supra), 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 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."

17. The above multiplier system has
been further affirmed by the Supreme
4 All. The Oriental Insurance Company Ltd. Vs. Smt. Parul Devi & Ors.
999
Court in National Insurance Company
Vs. Pranay Sethi & others, AIR 2017
SC 5157 and the available multiplier is of
14 in the age of 42 years. It is pertinent to
mention that multiplier system has been
provided under law law to maintain
uniformity in determining quantum of
compensation in order to avoid variation.
Therefore, multiplier of 15 has been
wrongly applied by the learned Tribunal
and it should be 14 as held by the
Supreme Court.

18. As such, applying the multiplier
of 14 in place of 15, the amount comes to
157464 x 14 = Rs. 2204496/-. The learned
Tribunal has added a future income at the
rate of 30%. The submission of the
learned counsel is that in view of the
judgment in Pranay Sethi (supra), the
future income in the age of 42 years
should be 25% of the total income, as the
deceased was not a permanent employee
and his income was not certain. In this
regard, the law has been settled by the
Supreme Court in Pranay Sethi (supra)
in which all the earlier decisions on this
point have been discussed and considered
and it has been laid down by the Court as
below:

"While determining the income,
an addition of 50% of actual salary to the
income of the deceased towards future
prospects, where the deceased had a
permanent job and was below the age of
40 years, should be made. The addition
should be 30%, if the age of the deceased
was between 40 to 50 years. In case the
deceased was between the age of 50 to 60
years, the addition should be 15%. Actual
salary should be read as actual salary
less tax.

(iv) In case the deceased was
self-employed or on a fixed salary, an
addition of 40% of the established income
should be the warrant where the deceased
was below the age of 40 years. An
addition of 25% where the deceased was
between the age of 40 to 50 years and
10% where the deceased was between the
age of 50 to 60 years should be regarded
as the necessary method of computation.
The established income means the income
minus the tax component."

19. Clearly, the deceased was not
self employed nor he was working on
fixed salary and therefore, the addition of
salary at the rate of 30% against future
prospects is legally justified and there is
no illegality when the learned Tribunal
has enhanced 30% salary against future
prospect and it annually comes to Rs.
47239/-.

20. In conventional head, the learned
Tribunal has awarded Rs. 2000/- as
funeral expences and Rs. 2500/- for loss
of estate. No amount has been awarded
for the loss of consortium. It has been laid
down in Pranay Sethi (supra) as follows:

"Reasonable
figures
on
conventional heads, namely, loss of
estate, loss of consortium and funeral
expenses should be Rs. 15,000/-, Rs.
40,000/- and Rs. 15,000/- respectively."

21. In view of above discussion, the
amount of compensation is required to be
calculated as follows:

A. Annual Salary at the Rate of Rs.
17496 Monthly

 - Rs. 209952

B. Deduction of 1/4th Against
Personal Expenses
- Rs. 52488

Total - Rs. 157464

C.
Applying
Multiplier
of
14
(157464x 14)

 - Rs. 2204496
1000 INDIAN LAW REPORTS ALLAHABAD SERIES

D. Future Prospect at the Rate of
30%

 - Rs. 661348

Total - Rs. 2865844

E. Addition under Conventional
Head

 1.
Loss of Consortium - Rs. 40000

 2.
Funeral Expences - Rs. 15000

 3.
Loss of estate - Rs. 15000
__________________________________
_______________________
Total of Amount under Conventional
Head

- Rs. 70000
__________________________________
_____________________
Total Amount of Compensation

- Rs. 2935844

22. As calculated above the total
amount of compensation should have
been Rs. 2935844/-, whereas, the learned
Tribunal has awarded an amount of Rs.
3075048/-.
Therefore,
the
awarded
amount needs to be modified accordingly.

23. The submission of the learned
counsel for the respondents-claimants has
been that the Insurance Company has wrongly
deducted TDS. In view of the judgment in
Pranay Sethi (supra), income tax is required
to be deducted. Therefore, if the income tax
has been deducted, there appears to be no
illegality. If the amount deducted as TDS is
wrong or in excess, the same can be returned
according to the legal process and by filing
return and claiming the excess amount.
Accordingly, the objection/application/crossappeal of the respondents-claimants is
disposed of.

24. The amount of compensation is
modified to become Rs. 2935844/- in
place of Rs. 3075048 which has been
awarded by the learned Tribunal by the
impugned award. The remaining part of
the
impugned
award
shall
remain
undisturbed.
The
difference
of
Rs.139204/- (Rs. 3075048 - 2935844 )
shall be deducted in half proportion from
the share of claimant wife and half of the
amount shall be deducted in equal
proportion from the share of other four
claimants.

25. With the above modification,
this appeal is finally disposed of. Stay
order if any shall stand vacated.

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

27. The office is directed to send a
copy of this judgment to the concerned
Tribunal for information and necessary
compliance. If the lower court record has
been received, the same is directed to be
returned to the concerned Tribunal.
----------
(2019)12 ILR A1000

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2019

BEFORE
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

FAFO No. 2257 of 2010
along with
FAFO No. 2256 of 2010

National Insurance Company Ltd.
 ...Appellant
Versus
Smt. Reeta Devi & Ors. ...Respondents