Madhya Pradesh High Court
L & T General Insurance Com. Ltd vs Smt. Gomaya on 30 June, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:13188
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 30th OF JUNE, 2025
MISC. APPEAL No. 801 of 2013
L & T GENERAL INSURANCE COM. LTD
Versus
SMT. GOMAYA AND OTHERS
Appearance:
Shri B.K.Agrawal - Advocate for the appellant.
Smt.Meena Singhal - Advocate for respondents No.1 to 4.
WITH
MISC. APPEAL No. 820 of 2013
SMT. GOMAYA AND OTHERS
Versus
RAJKUMAR TOMAR AND OTHERS
Appearance:
Smt.Meena Singhal - Advocate for the appellants.
Shri B.K.Agrawal - Advocate for respondent No.3.
ORDER
This order shall govern disposal of both these Misc. Appeals as they
arise out of common award dated 30.04.2013 passed by the Second
Additional Motor Accident Claims Tribunal, Gwalior, in Claim Case
No.8/2012; whereby, learned Claims Tribunal has awarded a compensation
of Rs.21,68,432/- for the death of Santlal Gurung in a road accident.
2. M.A.No.801/2013 has been filed by appellant/Insurance Company
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(hereinafter for convenience shall be referred as "Insurance Company");
whereas, M.A.No.820/2013 been filed by the appellants/claimants
(hereinafter for convenience shall be referred as "claimants").
3. Briefly stated, the facts of the case are that on 17.11.2011 after duty
deceased Santlal, who was posted as Constable in B.S.F. Department,
Tekanpur, was going to his home on bicycle in slow speed, at that juncture,
near Peer Baba Dargah, Tekanpur, respondent- Hemsingh Kadera, driver of
truck No.MP09/H.G. 3378 came from the side of Dabra by driving it rashly
and negligently and dashed the bicycle of Santlal, due to which he died on
the spot.
4 . Learned counsel for the Insurance Company submitted that learned
Tribunal has erred in not appreciating the fact that claimants No.2 & 3 were
major and were not supposed to be dependents upon the income of the
deceased and in these circumstances, the dependency ought not to have been
assessed as 3/4th of the income of the deceased. The learned Tribunal while
assessing the income of the deceased grossly erred in not making any
deductions under Income Tax, Service Tax and Professional Tax which the
deceased was under obligation to pay. The learned Tribunal applied the
multiplier on the entire period on uniform basis, whereas the deceased was in
service of Para Military Forces and as such was to retire at the age of 58
years. After retirement the pension to be received by the deceased was
certainly 50% of his income/pay which he was receiving at the time of his
death. Therefore, in this circumstances, learned Tribunal ought to have
assessed dependency on his income for next five years and thereafter on his
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pension for remaining four years. The learned Tribunal has also erred in
directing penal interest in default of payment of amount of compensation
within two months from retrospective effect which is not envisaged in the
Motor Vehicles Act. In support of his submission, learned counsel for the
Insurance Company has placed reliance on the following judgments :-
(i) Amrit Bhanu Shali and others vs. National Insurance Co. Ltd. &
Ors., (2012) 11 SCC 738.
(ii) Deep Shikha & Anr. Vs. National Insurance Co. Ltd. & Ors.
decided on 13.05.2025 in Special Leave Petition (Civil) Nos.22265-22266 of
(iii) Fakir Chand Taneja and others vs. Oriental Insurance Co. Ltd. &
Anr., 2022(4) T.A.C. 440(SC).
(iv) Sebastiani Lakra & Ors. vs. National Insurance Co. Ltd. & Anr.,
(2019) 17 SCC 465
(v) National Insurance Co. Ltd. Vs.Keshav Bahadur and others, 2004
ACJ 648
(vi) Smt. Sarla Verma and others vs. Delhi Transport Corpn. & Anr.,
2009(2) T.A.C. 677 (SC)
(vii) National Insurance Co. Ld. Vs. Pranay Sethi & Ors., MACD
2017(4) (SC) 137
(viii) Iffco Tokyo General Insurance Co. Ltd. Vs. Smt. Mamta & Ors.
decided on 25.08.2023 in M.A.No.2008/2023.
5. It is submitted by learned counsel for the claimants that learned Tribunal
has not considered the increment and DA which would be added to the
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income of the deceased every year. As per settled law, on these two counts
10% of the income is to be added in the income of the deceased. Learned
Tribunal has considered dependency of the claimants as 3/4 while the
claimants were totally dependent on the income of the deceased, therefore,
the dependency ought to be considered as 4/5. Compensation under the head
of loss of consortium has not been granted to all the claimants. The
compensation qua funeral expenses and estate of loss is also on lower side.
Rate of interest is also on lower side. On these grounds, learned counsel
prayed for enhancement of the compensation by Rs.5,00,000/-. In support of
her submission, learned counsel for the claimants has placed reliance on the
following judgments :-
(i) Ramrao Lala Borse and another vs. New India Assurance Co. Ltd.
& Anr, 2018 ACJ 973
(ii) Preeto Devi & Ors. vs. Bakhtour and others, 2018 ACJ 665
(iii) Seema Rani and others vs. Oriental Insurance Co. Ltd. & Ors.,
2025 ACJ 338
(iv) National Insurance Co. Ltd. vs. Birender and others, 2020 ACJ
(v) Sadhana Tomar and others vs. Ashok Kushwaha and others, 2025
ACJ 414
(vi) Universal Sompo General Insurance Co. Ltd. Vs. Smt. Arti & Ors
decided on 06.04.2018 in M.A.No.655/2018.
6. Having heard learned counsel for the parties, perused the record.
7. As far as I.A.No.2972/2019, which is an application under Order 41
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Rule 27 of CPC, is concerned, the claimants have filed this application for
taking on record the document issued by the Assistant Commandant on 12th
July, 2019. This is the information given by the Assistant Commandant to
the claimant- Smt. Gomaya which shows pay fixation as per 6th Pay
Commission since 01.01.2006 and it is mentioned that if the deceased would
have completed superannuation in June, 2020, what amount he will get as
his basic salary in different years. This document shows that in July, 2011
the basic pay of the deceased was Rs.12,420/- and the certificate of pay
(Ex.P/13) for the month of October, 2011, which has been relied upon by the
claimants and also proved on their behalf, shows that basic pay of the
deceased in October, 2011 was 12,040/-. There is no material variation in the
basic pay shown in Ex.P/13 and this certificate. Why this certificate has not
been filed earlier is not clarified by the claimants. This certificate has been
issued to claimant - Gomaya on her demand, but that can be sought earlier.
8. The provisions of Order 41 Rule 27 of CPC are as under :-
Order 41 -Appeals from Original Decrees.
27. Production of Additional Evidence in Appellate Court.
(1)The parties to an appeal shall not be entitled to produce
additional evidence, whether oral or documentary , in the
Appellate Court. But if-
(a)the Court from whose decree the appeal is preferred has refused
to admit evidence which ought to have been admitted, or
(aa)the party seeking to produce additional evidence, establishes
that notwithstanding the exercise of due diligence, such evidence
was not within his knowledge or could not, after the exercise of
due diligence, be produced by him at the time when the decree
appealed against was passed, or
(b)the Appellate Court requires any document to be produced or
any witness to be examined to enable it to pronounce judgment, or
for any other substantial cause,
the Appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2)Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its
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admission.
9. Having regard to the provisions of Order 41 Rule 27 of CPC, since the
document filed along with I.A.No.2972/2019 could be filed earlier during
the pendency of the claim application before the learned Tribunal and no
satisfactory reasons for such delay have been shown, therefore, this
application deserves to be dismissed and is hereby dismissed.
10. Having considered the merits of the case, the contention of learned
counsel for the claimants that as per the 6th Pay Commission the basic pay of
the deceased would be Rs.41,000/- is not tenable as discussed earlier. The
document appended with the aforesaid I.A. itself shows that at the time of
accident the income of the deceased as per 6th Pay Commission was more or
less similar as depicted in Ex.P/13. It is not on record that Ex.P/13 is issued
without considering pay fixation in 6th Pay Commission. The statement of
Rajesh Singh Bhadauria (AW-3), who has submitted Ex.P/13, does not
reveal that fixation under 6th Pay Commission has not been done before
issuing this certificate and there is no evidence on record to assume that
Ex.P/13 does not reveal pay fixed under 6th Pay Commission.
11. As far as the submission of learned counsel for the claimants is
concerned that deceased would have got promotion in future and the
enhancement also be considered looking to this aspect, in this regard, if we
travel through the evidence on record, it is found that the document (Ex.P/14)
contains the fact that there was no opportunity of promotion to the deceased
which is reproduced as infra :-
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"घ) उ कािमक सीमा सुर ा बल म हमाल के पद पर दनांक
05.05.1980 से िनयु था तथा इसम पदो त का कोई ावधान नह
है ।
It is crystal clear from this document that there was no opportunity of
promotion was available to the deceased, therefore, the aforesaid contention
of learned counsel for the claimants is not tenable.
12. In the case of Ramrao Lala Borse (supra) the Hon'ble Apex Court has
held that when the deceased was bachelor aged 29 years and was assistant
teacher on contract basis for 5 years in a school drawing salary of Rs.2,800/-
per month and there was evidence on record that if the deceased would have
been alive, he will be continued in service and would have been regularized
and entitled to the benefit of 6th Pay Commission. The income of the
deceased has been assumed as Rs.40,000/- per month. Here in this case,
however, the deceased was Constable in B.S.F. and was 51 years of age and
there was no chance of his promotion, therefore, on distinguishable facts the
aforesaid law does not help learned counsel for the claimants in this case. In
the case of Universal Sompo General Insurance Co. Ltd. (supra) the
Coordinate Bench of this Court has held that 7th Pay Commission
notification was notified in June-July, 2017 but the same was implemented
w.e.f. 01.01.2016 and considering this fact compensation was determined,
but as discussed earlier, in this case, it is not proved on behalf of the
claimants that fixation under 6th Pay Commission was not done before
issuing Ex.P/13, the salary certificate.
13. In the case of Preeto Devi (supra) pay scale was revised subsequent to
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the accident on recommendation of 6th pay commission w.e.f. 01.01.2006
and Tribunal had assumed salary on the date of accident on the ground that
increased salary was never disbursed to the deceased. In such situation, it is
held by the Punjab & Haryana High Court that the recommendation of 6th
Pay Commission should be considered for the purpose of fixing income for
computing compensation. In the aforesaid case, the accident took place on
01.12.2007.
14. As far as submission as regards consortium to all the claimants is
concerned, the claimants are widow of the deceased and his children. It is
submitted on behalf of the Insurance Company that claimant Heera, daughter
of the deceased, is a married daughter, and therefore, she cannot be deemed
to be dependent on the deceased. In this respect, if we go through the
pleadings and evidence, it is categorically pleaded by the claimants that
sudden death of the deceased will create problem in maintenance of the
claimants and marriage to be solemnized of the children of the deceased.
Same is the statement of Smt. Gomaya (AW-1). Though this witness in his
cross-examination para 12 has admitted the suggestion given on behalf of the
Insurance Company that marriage of Heera has taken place, but it is not got
clarified by the Insurance Company that when marriage of claimant Heera
was solemnized ? Pleadings and evidence on record does not indicate that
claimant Heera got married before filing of claim application. If during the
course of enquiry marriage of complainant Heera was solemnized, in that
condition also, she cannot be deemed to be not dependent on the deceased.
There is no rebuttal evidence adduced on behalf of the Insurance Company
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or on behalf of the driver or owner of the offending vehicle that since
claimant Heera has been married, therefore, her dependency on the deceased
terminates. There is no detail with regard to marriage of claimant Heera that
when it took place and with whom, so also that claimant Heera or her
husband are capable of maintaining themselves, and therefore, they were not
dependent on the deceased at the time of accident. In absence of such detail,
it cannot be assumed that claimant Heera was not dependent on the deceased.
15. In the case of Seema Rani (supra) the Hon'ble Apex Court has
considered major sons and married daughter as dependents and held that they
cannot be excluded from receiving compensation. The case of Hon'ble Apex
Court in the case of Birender (supra) has also been considered in this case.
Though in this regard learned counsel for the Insurance Company has relied
upon the decision of the Hon'ble Apex Court in the case of Amrit Bhanu
Shali (supra), but in that case the claimant, who has not been assumed as
dependent on the deceased was the sister of the deceased and not the
daughter. Similarly, in the case of Deep Shikha (supra) the married daughter
was not deemed to be dependent on the death of "her mother", but in that
case the law laid down in the case of Seema Rani and Birendra (supra) has
not been considered. That apart, in this case, the deceased is not the mother
of the married daughter, but father, who was in permanent job as Head
Constable in BSF and the daughter who is said to be married during the
pendency of the enquiry on the claim petition.
16. In case of Birendra (supra) the Hon'ble Apex Court has dealt with the
issue of dependency of married daughter on the government servant and held
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that major sons and daughter of the government servant are the legal
representatives of the deceased and they are deemed to be dependent on the
deceased and they can claim compensation under Motor Vehicles Act.
Similar is the law laid down in the case of Sadhana Tomar (supra).
17. As far as the future prospect at the rate of 15% to the claimants are
concerned, since the deceased was in permanent job with the Directorate
General, Border Security Force, therefore, as per the law laid down in the
case of Pranay Sethi (supra) the claimants are entitled to get future prospect
at the rate of 15% having considered the age of the deceased as per his date
of birth depicted in Ex.P/1 as 01.07.1960, according to which at the time of
accident he was around 51 years of age. Considering this age, the multiplier
of 11 is appropriate in this case in the light of decision of Hon'ble Apex
Court in the case of Sarla verma (supra).
18. In case of Pranay Sethi (supra) the purpose of future prospect has been
considered in para 59 to 61 to bring parity in case of assessment and keeping
in view the principle of standardization and considering that when a person is
in permanent job there is always an enhancement due to one reason or the
other. Therefore, considering the various aspects the head of future prospect
has been introduced. Para 24 of the decision of the Hon'ble Apex Court in
the case of Sarla Verma (supra) is also pertinent in this regard which reads as
under :-
"24.The assumption of the appellants that the actual future pay
revisions should be taken into account for the purpose of
calculating the income is not sound. As against the contention of
the appellants that if the deceased had been alive, he would have
earned the benefit of revised pay scales, it is equally possible that
if he had not died in the accident, he might have died on account
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of ill health or other accident, or lost the employment or met some
other calamity or disadvantage. The imponderables in life are too
many. Another significant aspect is the non-existence of such
evidence at the time of the accident. In this case, the accident and
death occurred in the year 1988. The award was made by the
Tribunal in the year 1993. The High Court decided the appeal in
2007. The pendency of the claim proceedings and appeal for
nearly two decades is a fortuitous circumstance and that will not
entitle the appellants to rely upon the two pay revisions which
took place in the course of the said two decades. If the claim
petition filed in 1988 had been disposed of in the year 1988-1989
itself and if the appeal had been decided by the High Court in the
year 1989-1990, then obviously the compensation would have
been decided only with reference to the scale of pay applicable at
the time of death and not with reference to any future revision in
pay scales. If the contention urged by the claimants is accepted, it
would lead to the following situation: the claimants could only
rely upon the pay scales in force at the time of the accident, if they
are prompt in conducting the case. But if they delay the
proceedings, they can rely upon the revised higher pay scales that
may come into effect during such pendency. Surely, promptness
cannot be punished in this manner. We therefore reject the
contention that the revisions in pay scale subsequent to the death
and before the final hearing should be taken note of for the
purpose of determining the income for calculating the
compensation. "
19. As far as the contention of learned counsel for the Insurance Company
that Income Tax and Professional Tax ought to be deducted from the income
of the deceased is concerned, the salary certificate (Ex.P/13) indicates that no
income tax or any other tax has been deducted from the salary paid to the
deceased. The total annual income of the deceased comes to Rs.2,60,412. No
evidence has been adduced on behalf of the Insurance Company that any
income tax or professional tax is liable to be deducted from the said income
of the deceased. In this regard, the evidence available may be adduced by the
Insurance Company, but it is missing for the reasons best known to it.
20. In this case, the total annual income of the deceased comes to
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Rs.2,60,412/- and as per the submission of learned counsel for the Insurance
Company in the financial year 2011-12 the slab of income tax was 10% for
the income between Rs.1,80,000/- to Rs.5,00,000/-, but this Court cannot
lose sight of the fact that benefit of other deductions might have been
available to the deceased and keeping in view the annual income of the
deceased he might not have been liable to pay any income tax. Therefore,
without there being any evidence in this regard, it cannot be appropriate to
deduct any amount as tax. It is also not on record that deceased was coming
within the purview of any other tax.
21. In case of Fakir Chand Teneja (supra) the Hon'ble Apex Court taking
into consideration the basic salary of the deceased as Rs.44,625/- per month,
considered deduction on account of income tax. Similar is the situation in the
case of Sebastiani Lakra (supra) and in the case of Smt. Mamta (supra)
decided by the Coordinate Bench of this Court, but as discussed earlier that
keeping in view the annual income of the deceased, the deceased might have
some deductions available under the Income Tax Act, therefore, he might
have been in position to avoid the liability under the Income Tax Act and
since there is no cogent evidence on record that there must be some liability
of the deceased under the Income Tax Act or other provisions vis-a-vis
annual income of the deceased, therefore, the contention in this regard is not
sustainable.
22. So far as loss of estate and funeral expenses and loss of consortium are
concerned, in the light of the law propounded in the case of Sarla Verma &
Pranay Sethi (supra), other claimants being the legal representatives of the
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deceased and dependent on the deceased are entitled to get Rs.40,000/- each
as loss of consortium and Rs.15,000/- each on the head of funeral expenses
and loss of estate.
23. The amount of family pension which is being received by the claimants
cannot be deducted from the income of the deceased as calculated aforesaid
for the purpose of ascertaining the compensation amount. Keeping in view
the law laid down in the case of Sarla Verma and Pranay Sethi (supra) and
having regard to the number of claimants as four, the dependency would be
deemed as 3/4th.
24. The learned counsel for the Insurance Company has also submitted
while placing reliance on the judgment of Hon'ble Apex Court in the case of
Keshav Bahadur (supra) that no penal interest can be imposed on Insurance
Company on failure to deposit the compensation amount within the
stipulated period. Para 14 of the said judgment being relevant is reproduced
as infra :-
"Though Section 110-CC of the Act (corresponding to Section
171 of the new Act) confers a discretion on the Tribunal to award
interest, the same is meant to be exercised in cases where the
claimant can claim the same as a matter of right. In the above
background, it is to be judged whether a stipulation for higher rate
of interest in case of default can be imposed by the Tribunal. Once
the discretion has been exercised by the Tribunal to award simple
interest on the amount of compensation to be awarded at a
particular rate and from a particular date, there is no scope for
retrospective enhancement for default in payment of
compensation. No express or implied power in this regard can be
culled out from Section 110-CC of the Act or Section 171 of the
new Act. Such a direction in the award for retrospective
enhancement of interest for default in payment of the
compensation together with interest payable thereon virtually
amounts to imposition of penalty which is not statutorily
envisaged and prescribed. It is, therefore directed that the rate of
interest as awarded by the High Court shall alone be applicable till
payment, without the stipulation for higher rate of interest being
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enforced, in the manner directed by the Tribunal."
Keeping in view the observations made in para 14 of the judgment, this
Court is of the considered view that penal interest as imposed in this case by
learned Tribunal is not lawful.
25. Consequently, the claimants would be entitled for the following
compensation:-
Sr. Amount awarded by learned Amount assessed by this
Head
No. Claims Tribunal Court
1. Income Rs.21,701/- Rs.21,701/- pm
2. Dependency 3/4 (16,276) 3/4 (16,276)
Future
3. - 15% (2441)
prospect
Loss of 16,276+2441=18,717/-x
5. 21,48,432/-
dependency 12x11=24,70,644/-
Funeral
6. 5,000/- 15,000/-
expenses
Loss of
7. 5,000/- 15,000/-
Estate
Loss of
8. 10,000/- 1,60,000/-
consortium
9. Total 21,68,432/- 26,60,644/-
10. Enhancement 4,92,212/-
26. Resultantly, M.A.No.801/2013 filed by the Insurance Company is
dismissed and M.A.No.820/2013 filed by the claimants is allowed in above
terms. Rest of the terms & conditions of the impugned award shall remain intact
except the direction as regards penal interest.
(RAJENDRA KUMAR VANI)
JUDGE
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ms/-
