# Vinod Kumar Mishra & Ors v. National Insurance Co. Ltd. & Ors

- **Citation:** (2022) 4 ILRA 1022
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-09
- **Case number:** First Appeal From Order No. 513 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-mishra-ors-v-national-insurance-co-ltd-ors-48358
- **Pages:** 6

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168 & 173--Compensation--
Determination of--Deceased was going on her
4 All. Vinod Kumar Mishra & Ors. Vs. National Insurance Co. Ltd. & Ors.
1023
Scooty--Offending truck coming from opposite
direction driven very rashly and negligently hit
the Scooty of deceased--She received fatal
injuries and died during treatment in hospital--
Accident
not
in
dispute--Insurer
did
not
challenge its liability--Issue of negligence stands
decided--Appeal
relates
to
quantum
of
compensation--Deceased met her end at the
age of 21 years as a B. Tech student of third
year--She had a promising career--Tribunal
assessed her monthly income at ` 3,000 only--
Deceased was going to be an engineer--Tribunal
ought to have considered potential of the
deceased to earn her livelihood--Motor Vehicles
Act being a benevolent legislation, claimants are
entitled to just compensation--Keeping in mind
capability and potentiality of the deceased, her
income should be assessed at ` 6,000 per
month--40% of the income to be added towards
future
loss
of
income--Considering
the
educational qualification, family background and
age of the deceased deduction of 50% towards
her personal expenses held appropriate--Taking
annual income at ` 6,000 x 12 = ` 72,000 and
adding 40% towards future prospects total
income assessed at ` 1 lac--After deduction of
50% towards personal expenses and applying
multiplier of 18 loss of dependency worked out
at ` 9.07,200--Further sum of ` one lac allowed
towards
non-pecuniary
damages,
total
compensation determined at ` 10,07,200--
Interest allowed @ 7.5% p.a. from date of claim
petition till the amount is deposited.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

1022 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings which are going on since 2013
and for the first time came to know in
October, 2019. The application under Order
21 Rule 97 C.P.C. was moved on
16.11.2019. The only fact disclosed in the
application was that petitioner no. 1 which
was a partnership firm was let out the shop
in 1967 and continued as partnership firm
till 1988 when it was converted into a sole
proprietorship. Nowhere in the application,
the details of the partners who constituted
the firm was disclosed nor the date of
dissolution of the partnership firm was
mentioned. The supporting documents filed
are rent receipts which are actually issued
in the name of respondent no. 2, Sushil
Kumar Tadaiya who is real brother of Sunil
Kumar Tadaiya, the late husband of
petitioner no. 2, who claims to be running
the sole proprietorship since 1988.

28. The courts below had rightly
rejected the application holding that it was
a dilatory tactics by petitioners to stall the
execution proceedings launched by decreeholder.

29. This Court finds that Apex Court
had clearly interpreted Rule 97 read with
Rule 101 of Order 21 post amendment
wherein the executing court has to
determine under Rule 101 Order 21 of the
Code that the question raised has legally
arisen between the parties and secondly the
question must be relevant for consideration
and determination between the parties.

30. In the present case, this Court
finds that the application moved under
Order 21 Rule 97 does not raise any
question to be determined and is only an
application
by
the
sister-in-law
of
respondent no. 2 trying to stall and delay
the execution proceeding filed by decreeholder.
31. In view of above, the question
raised in the present case stands answered
in view of decision of Apex Court in case
of Silverline Forum Pvt. Ltd. (supra)
followed in Noorduddin (supra) and
Shreenath (supra) that only the question
which has been legally raised by the parties
and must be relevant for consideration and
determination between them shall be
considered and nothing beyond that.

32. Thus, considering the facts and
circumstances of the case, this Court finds
that no case is made out which warrants
interference in the orders passed by the
courts below.

33. Writ petition fails and is hereby
dismissed.

34. Interim order stands discharged.
----------
(2022)04ILR A1022
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.03.2022

BEFORE

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

First Appeal From Order No. 513 of 2018

Vinod Kumar Mishra & Ors. ...Appellants
Versus
National Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Ved Prakash Shukla

Counsel for the Respondents:
Sri Rajeev Ojha

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168 & 173--Compensation--
Determination of--Deceased was going on her
4 All. Vinod Kumar Mishra & Ors. Vs. National Insurance Co. Ltd. & Ors.
1023
Scooty--Offending truck coming from opposite
direction driven very rashly and negligently hit
the Scooty of deceased--She received fatal
injuries and died during treatment in hospital--
Accident
not
in
dispute--Insurer
did
not
challenge its liability--Issue of negligence stands
decided--Appeal
relates
to
quantum
of
compensation--Deceased met her end at the
age of 21 years as a B. Tech student of third
year--She had a promising career--Tribunal
assessed her monthly income at ` 3,000 only--
Deceased was going to be an engineer--Tribunal
ought to have considered potential of the
deceased to earn her livelihood--Motor Vehicles
Act being a benevolent legislation, claimants are
entitled to just compensation--Keeping in mind
capability and potentiality of the deceased, her
income should be assessed at ` 6,000 per
month--40% of the income to be added towards
future
loss
of
income--Considering
the
educational qualification, family background and
age of the deceased deduction of 50% towards
her personal expenses held appropriate--Taking
annual income at ` 6,000 x 12 = ` 72,000 and
adding 40% towards future prospects total
income assessed at ` 1 lac--After deduction of
50% towards personal expenses and applying
multiplier of 18 loss of dependency worked out
at ` 9.07,200--Further sum of ` one lac allowed
towards
non-pecuniary
damages,
total
compensation determined at ` 10,07,200--
Interest allowed @ 7.5% p.a. from date of claim
petition till the amount is deposited.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Sarla Verma & ors. Vs Delhi Transport
Corporation & ors. MANU/SC/0606/2009;

2. Meena Pawaia & ors. Vs Ashraf Ali & ors.
MANU/SC/1088/2021;

3.
Jakir
Hussein
Vs
Sabir
&
ors.
MANU/SC/0179/2015;

4. National Insurance Co.y Ltd Vs Pranay Sethi
& ors. MANU/SC/1366/2017;

5. Munna Lal Jain & ors. Vs Vipin Kumar Sharma
& ors. MANU/SC/0640/2015;
6. National Insurance Co. Ltd. Vs Mannat Johal
& ors. MANU/SC/0589/2019;

7. Hansaguri Prafulchandra Ladhani & ors. Vs
The Oriental Insurance Company Ltd. & ors.
MANU/GJ/2100/2006
(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal is preferred by the
claimants-appellants for enhancement of
compensation awarded to appellant by
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.16, Kanpur Nagar ('Tribunal', for
short),
vide
judgment/award
dated
9.11.2017 and decree dated 14.11.2017 in
M.A.C.No.820 of 2010 (Vinod Kumar
Mishra & others vs. National Insurance
Co.Ltd.
&
others)
whereby
claimants/appellants
was
awarded
Rs.4,71,500/-, with 6% rate of interest as
compensation.

2. Brief facts of the case are that on
20.12.2008, the deceased was going on her
scooty
bearing
No.UP78-BP/2060
in
District-Kanpur Nagar. When she reached
near Railway-crossing, GT Road within the
jurisdiction of Police Station-Chakeri, a
truck bearing No.UP78-AT/4739 coming
from opposite direction, which was being
driven very rashly and negligently by its
driver hit the scooty of the deceased. In this
accident, Kumari Anjali Mishra (deceased)
sustained fatal injuries and died during the
treatment in hospital. A police report was
registered at concerned police station
regarding the accident. The owner and
insurer of aforesaid offending truck filed
their respective written statements before
the Tribunal. Driver of the truck did not
participate in the proceedings. Aggrieved
by the quantum of compensation with 6%
per annum rate of interest, the appellantsclaimants filed this appeal.
1024 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Heard Shri Ved Prakash Shukla,
learned counsel for the appellants and Shri
Rajeev Ojha, learned counsel for the
respondents-Insurance Company.

4. The accident is not in dispute. The
insurance company has not challenged the
liability on it. The issue of negligence has
attained finality. Now the only issue to be
decided is the quantum of compensation
awarded by the Tribunal. Entire factual
scenario is not being narrated as the limited
question in this appeal relates to the
quantum only.

5. With regard to the quantum,
learned
counsel
for
the
appellants
submitted that the age of the deceased at
the time of accident was just 21 years and
she was student of B.Tech. and had passed
3rd Year; her career was very promissing.
It is also submitted that the deceased was
earning Rs.6,000/- per month by way of
imparting tuitions, but learned Tribunal
assessed her monthly income at Rs.3,000/-
only.
Further
submission
is
that
compensation under the heads of nonpecuniary damages is on the very lowerside; Tribunal has awarded Rs.2,500/- for
loss of estate and Rs.10,000/- for funeral
expenses. No amount regarding filial
consortium has been awarded. It is next
contended by counsel for the appellants
that Tribunal has applied multiplier of 17
while it could have been 18 in the light of
the judgment of Hon'ble Apex Court in the
case of Smt.Sarla Verma vs. Delhi
Transport Corporation [2009 (2) TAC 677
(SC)]. Learned counsel for the appellantsclaimants has heavily relied on the
following judgments:

A. Meena Pawaia and others vs.
Ashraf Ali and others, 2021 LawSuit (SC)
743,

B. Jakir Hussain vs. Sabir and
others, 2015 LS (SC) 147

6. Shri Rajiv Ojha, learned counsel
appearing
for
Insurance
Company,
vehemently objected the contentions made
by counsel for the appellants and submitted
that deceased was only a student; she was
not earning anything. It is further submitted
that according to the averment of claim
petition, the deceased was imparting
tuitions and earning Rs.6,000/- per month,
but no documentary evidence in this regard
has been adduced by the appellants. Hence,
the oral submission does not carry any
weight, therefore, learned Tribunal has
rightly
assessed
her
income
to
be
Rs.3,000/- per month; multiplier is also
correctly
applied.
Learned
counsel
appearing for Insurance Co. has lastly
submitted that there is no infirmity or
illegality in the impugned judgment, which
calls for any interference by this Court.

7. It is admitted fact that at the time of
death, the age of the deceased was 21 years
and it is also admitted and not opposed by
respondents that she was the student of
B.Tech. and had passed 3rd year. Even, if
there is no documentary evidence regarding
her imparting the tuitions and earning
Rs.6,000/- per month, but learned Tribunal
lost its sight from the fact that she was
pursuing B.Tech., meaning thereby she was
going to become an Engineer, if she had
not met the unfortunate accident and died
untimely-death.

8.

For
assessing
the
just
compensation, in such cases where a
promissing student has lost his/her life in
unfortunate accident, Tribunals must keep
in mind the potential of the deceased to
earn his/her livelihood. It is not necessary
that in every case, a promissing student had
4 All. Vinod Kumar Mishra & Ors. Vs. National Insurance Co. Ltd. & Ors.
1025
some earning at the time of death, but
he/she could have potential and capacity to
earn, if the accident would not have
occurred. The Motor Vehicles Act is a
benevolent Act and the claimants are
entitled to just compensation.

9. Hon'ble Apex Court in Meena
Pawaia (supra) has held that even the
labourers were getting Rs.5,000/- per
month under the Minimum Wages Act.
Even in 2012, therefore, Tribunal should
not have assessed a meager income of a
person, who has lost life in accident.
Educational
qualification
and
family
background of such type of deceased
persons should be kept in mind before
assessing their income.

10. In the case in hand, it is very well
proved that the deceased was 21 years of
age and had passed 3rd Year Examination
of B.Tech. So we are of the considered
opinion
that
learned
Tribunal
has
committed grave error in fixing her
monthly
income
at
Rs.3,000/-
only.
Keeping in mind the potentiality and
capability of the deceased to earn in future,
we are of the considered view that her
income should be assessed not less than
Rs.6,000/-
per
month
as
she
was
promissing B.Tech. Student. Therefore, her
monthly
income
is
assessed
to
be
Rs.6,000/- per month. As far as the future
loss of income is concerned, learned
Tribunal has added 50% of the income, but
in Meena Pawaia's case (supra), Hon'ble
Supreme Court held that even in a case of a
deceased, who was not serving at the time
of death and had no income, their legal
heirs shall also be entitled to futureprospects by adding future rise in income
as held by Hon'ble Apex Court in the case
of National Insurance Company vs.
Pranay Sethi [2014 (4) TAC 637 (SC)] i.e
40% of the income shall be added for
future loss of income, considering the
educational
qualification,
family
background etc. where the deceased was
below the age of 40 years. Hence, we are
not inclined to add 50% to the income of
the deceased for future loss of income.
Deceased was unmarried, therefore, the
Tribunal was rightly deducted 1⁄2 for her
personal expenses as envisaged by Hon'ble
Apex Court in Munna Lal Jain vs. Vipin
Kumar Sharma, 2015 (3) TAC 1(SC).
Learned Tribunal has applied multiplier of
17, which is on lower-side and it should be
of 18 according to the judgment of Hon'ble
Apex Court in Smt.Sarla Verma (supra).
As far as non-pecuniary damages are
concerned, the Tribunal has awarded only
Rs.10,000/- towards funeral expenses,
which are also on the lower-side. In the
light of Judgment of Pranay Sethi (supra),
claimants
shall
be
entitled
to
get
Rs.15,000/-
for
loss
of
estate
and
Rs.15,000/- for funeral expenses. Apart
from it, the appellants shall also be entitled
to get Rs.40,000/- for loss of filial
consortium. Hence, the non-pecuniary
damages are calculated at Rs.15,000/- +
Rs.15,000/- + Rs.40,000/- = Rs.70,000/-,
and as per the judgment of the Pranay Sethi
(supra), these would be revised 10% every
three years. Hence, we fix total lump-sum
non-pecuniary damages at Rs.1,00,000/-.

11. Hence, the total compensation, in
view of the above discussions, payable to
the appellants-claimants is being computed
herein below:

i.
Annual
Income
Rs.6,000/-
x 12
Rs.72,0
00/-
ii.
Percentage
towards
FutureProspects
Rs.28,800
/-
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
(40%)
iii.
Total
Income
Rs.72,000
/-
+
Rs.28,800
/-
Rs.1,00,
800/-
iv.
Income
after
deduction
of 1/2

Rs.50,4
00/-
v.
Multiplier
applicable
18

vi.
Loss
of
dependency
Rs.50,400
/- x 18
Rs.9,07,
200/-
vii.
Nonpecuniary
Damages
Rs.1,00,0
00/-

viii. Total
Compensa
tion
Rs.9,07,2
00/-
+
Rs.1,00,0
00/-
Rs.10,0
7,200/-

12. As far as issue of rate of interest is
concerned, it should be 7.5% in view of the
latest decision of the Apex Court in
National Insurance Co. Ltd. Vs. Mannat
Johal and Others, 2019 (2) T.A.C. 705
(S.C.) wherein the Apex Court has held as
under:

"13. The aforesaid features equally
apply to the contentions urged on behalf
of the claimants as regards the rate of
interest. The Tribunal had awarded
interest at the rate of 12% p.a. but the
same had been too high a rate in
comparison
to
what
is
ordinarily
envisaged in these matters. The High
Court,
after
making
a
substantial
enhancement in the award amount,
modified the interest component at a
reasonable rate of 7.5% p.a. and we find
no reason to allow the interest in this
matter at any rate higher than that
allowed by High Court."

13. Learned Tribunal has awarded
rate of interest as 6% per annum, but we
are fixing the rate of interest as 7.5% in the
light of the above judgment.

14. In view of the above, the appeal is
partly allowed. Judgment and award passed
by the Tribunal shall stand modified to the
aforesaid extent. The Insurance Company
shall deposit the amount within a period of
8 weeks from today with interest at the rate
of 7.5% from the date of filing of the claim
petition till the amount is deposited. The
amount already deposited be deducted from
the amount to be deposited.

15. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani vs. The
Oriental
Insurance
Company
Ltd.,
[2007(2) GLH 291] and this High Court in
total amount of interest, accrued on the
principal amount of compensation is to be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimants to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
and in First Appeal From Order No.2871 of
2016 (Tej Kumari Sharma v. Chola
Mandlam M.S. General Insurance Co.
4 All. Smt. Minakshi Srivastava & Ors. Vs. Dheeraj Pandey & Ors.
1027
Ltd.)
decided
on
19.3.2021,
while
disbursing the amount.
----------
(2022)04ILR A1027
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

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

First Appeal From Order No. 3425 of 2016

Smt. Minakshi Srivastava & Ors.
 ...Appellants
Versus
Dheeraj Pandey & Ors. ...Respondents

Counsel for the Appellants:
Sri Satya Deo Ojha, Sri Shashi Prakash Rai

Counsel for the Respondents:
Sri Bajrang Bahadur Singh

Appellants have challenged the impugned award
and decision
-- illegal, arbitrary, without
application of mind and cannot be sustained in
the eyes of law -- injuries suggest that the
driver of Minibus was driving the vehicle rashly
and negligently -- issue is answered in the
positive and in favour of the appellants --
principle of contributory negligence has been
discussed time and again -- next issue which
arises is that the matter has remained pending
for long -- Total compensation - issue of rate of
interest is concerned, it should be 7.5% .

Appeal allowed. (E-9)

List of Cases cited:

1. Varinderjit Singh Vs Tajinder Singh & ors.
MANU/PH/0594/2007

2. Bhanwar Lal Verma Vs Sharad Tholia & ors.
MANU/RH/0672/2005

3. Kusum Lata & ors. Vs Satbir & ors.
MANU/SC/0165/2011
4.
Saroj
&
ors.
Vs
Het
Lal
&
ors.
MANU/SC/1041/2010

5. Vimla Devi & ors. Vs National Insurance
Comp. Ltd. & ors. MANU/SC/1290/2018

6. Sunita & ors. Vs Rajasthan State Road
Transport Corp. & ors. MANU/SC/0204/2019

7. Rylands v Fletcher MANU/UKHL/0001/1868

8. Jacob Mathew Vs State of Punjab & ors.
MANU/SC/0457/2005

9. Bithika Mazumdar & ors. Vs Sagar Pal & ors.
MANU/SC/0152/2017

10. National Insurance Comp. Ltd. Vs Pranay
Sethi & ors. MANU/SC/1366/2017

11. Sarla Verma & ors. Vs Delhi Transport
Corporation & ors. MANU/SC/0606/2009

12. National Insurance Comp. Ltd. Vs Mannat
Johal & ors. MANU/SC/0589/2019

13. A.V. Padma & ors. Vs R. Venugopal & ors.
MANU/SC/0065/2012

14. Hansaguri Prafulchandra Ladhani & ors. Vs
The Oriental Insurance Company Ltd. & ors.
MANU/GJ/2100/2006
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J & Hon'ble Vivek
Varma, J.)

1. Heard Sri Shashi Prakash Rai,
learned counsel for the appellants, Sri
Bajarang Bahadur Singh, learned counsel
for the owner-respondent no.1. None
present on behalf of driver-respondent
no.2 and insurance company-respondent
no.3.

2. By way of this appeal the
appellants have felt aggrieved by the order
passed by Claims Tribunal, whereby the
Claims tribunal dismissed the claim
petition being M.A.C.P. No. 21 of 2015.