# Vipin Kumar v. Reliance General Insurance Com. Ltd. & Ors

- **Citation:** (2022) 4 ILRA 251
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-22
- **Case number:** First Appeal From Order No. 1427 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vipin-kumar-v-reliance-general-insurance-com-ltd-ors-48303
- **Pages:** 5

## Headnote

(A) Torts Law - Motor vehicle Act,1988 -
Sections 163A,166 & 173 - quantum of
compensation - if the injury is not
specified in Schedule on such percentage
of compensation would be payable in case
of
permanent
total
disablement
proportionate
to
loss
of
earning
capacity.(Para - 8)

(B) Tax Law - The Income Tax Act, 1961-
Section 194A (3) (ix) - total amount of
interest, accrued on the principal amount
of compensation is to be apportioned on
financial year to financial year basis - 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' - if the
amount of interest does not exceeds
Rs.50,000/- in any financial year - registry
of Tribunal is directed to allow the
claimants
to
withdraw
the
amount
without producing the certificate from the
concerned Income-Tax Authority.(Para -
14)

Claimant earning Rs. 18,200/- age 22 years -
Accident - Functional disability 25% - Awarding
a sum of Rs.2, 30,000/- as compensation with
interest at the rate of 7% - aggrieved by order
of tribunal - hence appeal.

HELD:-Finding of Tribunal against the contours
of grant of compensation for injuries. Functional
disability 25%, to which he would be entitled to
Rs.50,000/- towards pain, shock and suffering .
Sum of Rs. 50,000/- granted for other non
pecuniary
damages.
Total
compensation:
17,06,420/-. Direction to respondent-Insurance
Company to deposit the amount along with
additional amount within a period of 12 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. Amount already
deposited be deducted from the amount to be
deposited. (Para - 7,8,9, 12)

Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

4 All. Vipin Kumar Vs. Reliance General Insurance Com. Ltd. & Ors.
251
(2022)04ILR A251
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2022

BEFORE

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

First Appeal From Order No. 1427 of 2021

Vipin Kumar ...Appellant
Versus
Reliance General Insurance Com. Ltd. &
Ors. ...Respondents

Counsel for the Appellant:
Sri Bed Kant Mishra

Counsel for the Respondents:
Sri Vijay Prakash Mishra

(A) Torts Law - Motor vehicle Act,1988 -
Sections 163A,166 & 173 - quantum of
compensation - if the injury is not
specified in Schedule on such percentage
of compensation would be payable in case
of
permanent
total
disablement
proportionate
to
loss
of
earning
capacity.(Para - 8)

(B) Tax Law - The Income Tax Act, 1961-
Section 194A (3) (ix) - total amount of
interest, accrued on the principal amount
of compensation is to be apportioned on
financial year to financial year basis - 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' - if the
amount of interest does not exceeds
Rs.50,000/- in any financial year - registry
of Tribunal is directed to allow the
claimants
to
withdraw
the
amount
without producing the certificate from the
concerned Income-Tax Authority.(Para -
14)

Claimant earning Rs. 18,200/- age 22 years -
Accident - Functional disability 25% - Awarding
a sum of Rs.2, 30,000/- as compensation with
interest at the rate of 7% - aggrieved by order
of tribunal - hence appeal.

HELD:-Finding of Tribunal against the contours
of grant of compensation for injuries. Functional
disability 25%, to which he would be entitled to
Rs.50,000/- towards pain, shock and suffering .
Sum of Rs. 50,000/- granted for other non
pecuniary
damages.
Total
compensation:
17,06,420/-. Direction to respondent-Insurance
Company to deposit the amount along with
additional amount within a period of 12 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. Amount already
deposited be deducted from the amount to be
deposited. (Para - 7,8,9, 12)

Appeal partly allowed. (E-7)

List of Cases cited:-

1. Sanjay Kumar Vs Ashok Kumar & anr., (2014)
5 SCC 330

2. Syed. Sadiq & ors. Vs Divisional Manager,
U.I.I.C.L. , (2014) 2 SCC 735

3. V. Mekala Vs M. Malathi & anr., (2014) 11
SCC 178

4. Hari Babu Vs Amrit Lal & ors., 2019 (2) T.A.C.
718 (All.)

5. Anthony @ Anthony Swamy Vs Managing
Director, K.S.R.T.C., 2020 (0) AIJEC-SC 66306

6. Anita Sharma Vs New India Assurance Co.
Ltd., 2020 (0) AIJEL-SC 66810

7. Oriental Insurance Co. Ltd. Vs Pankaj, 2014
(2) TAC 240 All

8. Shivdhar Kumar Vashiya Vs Ranjeet Singh &
ors., 2022 (0) Supreme (SC) 40

9. Raj Kumar Vs Ajay Kumar & anr., (2011) 1
SCC 343
252 INDIAN LAW REPORTS ALLAHABAD SERIES
10. National Insurance Co. Ltd. Vs Mannat
Johal & ors., 2019 (2) T.A.C. 705 (S.C.)

11. A.V. Padma Vs Venugopal, 2012 (1) GLH
(SC), 442

12. Smt. Hansaguti P. Ladhani Vs The O.I.C.L.,
2007(2) GLH 291

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard learned counsel for the parties
and perused the record.

2. This appeal, at the behest of the
injured-claimant challenges the judgment and
award dated 27.10.2016 passed by the Motor
Accident Claims Tribunal/Additional District
& Sessions Judge, Court No.5, Meerut
(hereinafter referred to as 'Tribunal') in Claim
Petition No. 1151 of 2014 awarding a sum of
Rs.2,30,000/- as compensation with interest at
the rate of 7%.

3. We do not burden the judgment with
unnecessary facts except the facts needed for
computing the compensation as all other issues
have attained finality as neither Insurance
Company nor the owner has filed any crossobjection and/or appeal. The accident is not in
dispute. The issue of negligence decided by
the Tribunal is not in dispute. The respondentInsurance Company has not challenged the
liability imposed on them. The only issue to be
decided is, the quantum of compensation as
the Tribunal very strangely did not grant any
amount for future loss of income, actual loss
of income though the claimant who was 22
years of age on 29.5.2014.

4. Learned counsel for the appellant,
so as to challenge the order of the Tribunal
has relied upon the following decisions :

(i) Sanjay Kumar Vs. Ashok
Kumar and another, (2014) 5 SCC 330;

(ii) Syed. Sadiq and others Vs.
Divisional
Manager,
United
India
Insurance Company Limited, (2014) 2
SCC 735;

(iii) V. Mekala Vs. M. Malathi
and another, (2014) 11 SCC 178; and

(iv)
Uttar
Pradesh
Motor
Vehicles (Eleventh Amendment) Rules,
2011.

(v) Hari Babu Vs. Amrit Lal
and others, 2019 (2) T.A.C. 718 (All.).

5. As narrated above, the accident is
not in dispute. The negligence of the driver
is also not in dispute. The injured sustained
53% injuries on his different parts of body
is proved by evidence of Orthopaedic
Surgeon, Dr. R.P. Mishra, who has given
the disability certificate as the treating
doctor
did
not
give
any
disability
certificate. The injured had to go to a
private
doctor.
The
petitioner
was
hospitalized from 29.5.2014 to 12.6.2014.
It is an admitted position from prescription
and the injury certificates of the hospital
that he was treated by Dr. Atul Rastogi and
Dr. Nitin Gupta at Jaswant Rai Speciality
Hospital. He was an indoor patient from
29.5.2014 to 12.6.2014. Several time he
was subjected to different kind of C.T.
Scans. He was having crushed injuries on
his left hand. He had injuries on the lower
limb also. The Tribunal very strangely
granted medical expenses but as the
certificate was given by private Doctor,
refuse to grant any amount for loss of
income despite the fact that there was Xray report which shows fixation device.
There was healed fracture of superior
ramus of right pubis and inferior rami of
both pubis. X-ray report of right leg shows
that there are old healed fracture (with
callus formation) of lower 1/3rd of shaft of
4 All. Vipin Kumar Vs. Reliance General Insurance Com. Ltd. & Ors.
253
right tibia is seen, fixation of device was
seen and there are old healed fracture with
callus formation of upper 1/3rd of shaft of
right fibula is seen. X-ray report of left
thigh shows there are old healed fracture
(with callus formation) of lower 1/3rd of
shaft of left femur is seen and fixation is
seen in situ.

6. The Tribunal while deciding the
issue of compensation payable has come to
the conclusion that the injuries are non
Scheduled
injuries.
The
Tribunal
considered that the disability given by the
doctor was not acceptable as he was not the
treating doctor and only for taking
certificate of disability he had approached
Dr. R.P. Mishra and he brushed aside the
evidence of Dr. R.P. Mishra and came to
the conclusion that the injured cannot be
said to have contracted any permanent
partial disablement and, therefore, he was
not entitled for any amount as the
certificates did inspire confidence. In our
view, this finding is against the contours of
beneficial piece of legislation. Dr. R.P.
Mishra had also referred the patient to get
his X-ray done. In his medical certificate,
he has considered all this facts and,
therefore the judgment of Apex Court in
Anthony Alias Anthony
Swamy
v.
Managing Director, K.S.R.T.C., 2020 (0)
AIJEC-SC 66306 and Anita Sharma v.
New India Assurance Co. Ltd., 2020 (0)
AIJEL-SC 66810 will apply in full force
as the certificate speaks about history,
examination, latest x-rays. The x-ray dated
29.4.2014 was also evaluated by him. From
the X-rays, nailing was done in left femur
and right fibia bone screw fixation was
done medial malleolus. There was fracture
in the pelvic region and his left hand flap
surgery by a plastic surgeon. could this be
brushed aside on the basis that the doctor
had not treated him. Dr. R.P. Mishra, holds
the degree of Orthopaedic Surgeon and was
retired medical superintendent. He has even
withstood the cross examination by the
counsel for the Insurance Company. Even
in the discharge summary of the claimant,
all these facts are mentioned and, therefore,
the finding that it cannot be conclusively
said and held that he had any kind of
disability is absurd. All the witnesses have
proved the injuries on the appellant namely
P.W.1 injured himself, P.W.2 Doctor, P.W.3,
the clerk of the hospital where the appellant
was treated, P.W.4 Arun Goel, owner of
Medical Store. The Insurance Company has
not produced any witness to show that the
medical certificate could not be read into
evidence. Decision in Oriental Insurance
Co. Ltd. v. Pankaj, 2014 (2) TAC 240 All,
states that it would not be proper to hold
that disability certificate cannot be given by
a
qualified
doctor
who
examined
injured/claimant subsequently to assess
extent of his permanent disability, the
Tribunal returned correct finding on all
issues involved in the case.

7. Thus, the finding of the Tribunal is
against
the
contours
of
grant
of
compensation for injuries. The judgment of
the Apex Court in Shivdhar Kumar
Vashiya v. Ranjeet Singh and others,
2022 (0) Supreme (SC) 40 will enure for
the benefit of the appellant. Hence the
judgment would have to re-evaluated for
grant of compensation.

8. The record goes show that the
injured was serving with Impression
Service Pvt. Ltd. NOIDA and where he
was getting salary Rs.18,200/- per month
and due to these injuries he lost his job. In
that view of matter the inured being 22
years of age at the time of accident and in
view of the decision in Raj Kumar Vs.
Ajay Kumar and another, reported in
254 INDIAN LAW REPORTS ALLAHABAD SERIES
(2011) 1 SCC 343, wherein it has been
held that if the injury is not specified in
Schedule
on
such
percentage
of
compensation would be payable in case of
permanent total disablement proportionate
to loss of earning capacity. In our case we
can consider his functional disability to be
25%. The Tribunal has not considered any
of the decision cited before it and has
brushed
aside
all
the
authoritative
pronouncement. The claimant was earning
Rs.18,200/- to which being 22 years of
age, 40 will have to be added towards
future loss of income and as we hold that
his functional disability would be 25%, to
which he would be entitled to Rs.50,000/-
towards
pain,
shock
and
suffering.
Looking to the age of the deceased, the
multiplier applicable would be 18. The
Tribunal has given a meagre amount of
Rs.5,000/- as per Section 163 A of the
Motor Vehicles Act, 1988 though the
petition was under Section 166 of the Act.
We grant the said amount as there were
multiple surgeries and multiple foreign
instruments were inserted in the body of
the young man. To this we grant
Rs.2,30,500/- granted by the Tribunal for
medical expenses. We grant a sum of Rs.
50,000/- for other non pecuniary damages.

9. Hence, the total compensation
payable to the appellant is computed herein
below:

i. Income : Rs.18,200/-

ii. Percentage towards future
prospects : 40% namely Rs.7280/-

iii. Total income : Rs. 18,200 +
7280 = Rs.25480-

iv. Loss of earning capacity : 25%
namely Rs.6,370-

v. Annual loss : Rs.6,370 x 12 =
Rs.76,440/-

vi. Multiplier applicable : 18

vii. Total loss : Rs.76,440 x 18 =
Rs.13,75,920/-

viii.
Medical
expenses
:
Rs.2,30,500/-

ix. Amount under pain, shock and
suffering : Rs.50,000/-

x. Amount under all other nonpecuniary heads : 50,000

xi.
Total
compensation
:
17,06,420/-

10. 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."

11. No other grounds are urged orally
when the matter was heard.

12. 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 respondent-Insurance
Company shall deposit the amount within a
period of 12 weeks from today with interest
at the rate of 7.5% from the date of filing of
the claim petition till the amount is
4 All. Smt. Munni & Ors. Vs. M/S Ahamdabad Bangal Roadways Pvt. Ltd. New Delhi & Ors.
255
deposited. The amount already deposited be
deducted from the amount to be deposited.

13. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of
investment is not passed because applicants
/claimants are neither illiterate or rustic
villagers.

14. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguti P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, 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 claimant 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)
while disbursing the amount.

15.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.
----------
(2022)04ILR A255
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2022

BEFORE

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

First Appeal From Order No. 1654 of 2021

Smt. Munni & Ors. ...Appellants
Versus
M/S Ahamdabad Bangal Roadways Pvt.
Ltd. New Delhi & Ors. ...Respondents

Counsel for the Appellants:
Sri Virendra Singh, Sri Akhilesh Kumar
Singh

Counsel for the Respondents:
Sri Sushil Kumar Mehrotra

(A) Torts Law - Motor Vehicle Act,1988 -
Sections 163A,166 & 173 - quantum of
compensation - The Uttar Pradesh State
Motor Vehicles Rules, 1998(amended in
2011) - Section 220 - compensation
should not be bonanza to the claimants
nor should be such a meager amount -
notional income cannot be considered
when
there
is
documentary
evidence.(Para - 7)

(B) Tax Law - The Income Tax Act, 1961-
Section 194A (3) (ix) - total amount of
interest, accrued on the principal amount
of compensation is to be apportioned on
financial year to financial year basis - if
the interest payable to claimant for any