# Abdul Hameed Khan & Ors v. Vijay Kumar Singh & Anr

- **Citation:** (2023) 11 ILRA 152
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** First Appeal From Order No. 2341 of 2006
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-hameed-khan-ors-v-vijay-kumar-singh-anr-49413
- **Pages:** 16

## Headnote

A. Civil Law - Motor Vehicles Act, 1988-Section
173-Enhancement
of
compensation-.The
deceased in this case was aged 16 years, that is
to say, much less than 40 years-His monthly
notional income would be considered Rs.
11 All. Abdul Hameed Khan & Ors. Vs. Vijay Kumar Singh & Anr.
153
5000/-
The
future
prospects,
which
the
claimants are entitled to add to the deceased's
notional income, going by Rule 220-A(3) of the
Rules of 1998, would be 50%- - The Tribunal
has adopted a multiplier of '16' which does not
conform to the principles laid down in Sarla
Verma Case- Going by the age of the deceased
and the principles laid down in Sarla Verma
Case the applicable multiplier would be '18', the
deceased being in the age bracket of 15-20
years -Thus, Total compensation will be Rs. 9,20,000/-
after applying multiplier 18-As per Rule 220-A(6) of the
Rules of 1998 provides the rate of interest shall be 7%
pendente lite and future till the actual payment. (Para 1
to 41)

B. Filial consortium is the right of the parents to
compensation in the case of an accidental death of a
child. An accident leading to the death of a child causes
great shock and agony to the parents and family of the
deceased. The greatest agony for a parent is to lose
their child during their lifetime. Children are valued for
their love, affection, companionship and their role in the
family unit. (Para 21)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,787 of 52,897. This is a partial read: ask again with offset=39787 for what follows._

152 INDIAN LAW REPORTS ALLAHABAD SERIES
registered trademark of the plaintiffrespondents is valid upto 15.01.2024 and
that the defendant-appellants have failed to
establish any registered trademark or
copyright with them. The court below has
also observed that any rights flowing from
Sri Subedar would be of no consequence
as, admittedly, Subedar had retired from
firm 'Musa and Sons' with effect from
01.04.1999. The court has further observed
that any activity of manufacturing and sale
of product which is deceptively similar
with 'Musa Ka Gul Super' would be
contrary to law. Regarding pecuniary and
territorial jurisdiction of the district court, it
has been observed by the court below that
at the time of registration of the suit, the
pecuniary jurisdiction was found to have
vested in the court and the said issue along
with an issue of territorial jurisdiction
would be decided after framing the issues
in the suit. I do not find any illegality in the
view taken by the district court in this
regard as I have already explained the said
aspect in this judgment itself and I find that
there was no factual or legal impediment in
entertaining and deciding the injunction
application by the court below.

32. This Court is satisfied that the
manner in which the injunction application
has been dealt with, the findings on all the
three ingredients appear to be based upon
cogent analysis of material available on
record. Even if, it is assumed that a very
detailed discussion of various documents
has not been made, after perusing the entire
record of the present appeal, I find that the
documents which were sufficient to form
an opinion regarding grant or denial of
injunction, have been dealt by the court
below and, even otherwise, it was not
required for the district court to hold a mini
trial at the time of consideration of the
injunction application. Once the court
below was satisfied that the registered
trademark No.616611 has been prima facie
infringed by the defendant-appellants, in
absence of anything substantial which can
persuade this Court to take a different view,
I do not find any good ground to interfere
in the order passed by the court below.

33. For all the aforesaid reasons, the
appeal fails and is hereby dismissed.

34. In case the written statements
have been filed, the Court below shall
frame issues before 31.12.2023 and shall
decide the suit before 31.03.2025 by fixing
short dates and subject to co-operation by
the parties permitting them to lead oral and
documentary evidence. Any unnecessary
adjournment by either party shall entail
cost of Rs. 750/- per adjournment.
----------
(2023) 11 ILRA 152
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 2341 of 2006

Abdul Hameed Khan & Ors. ...Appellants
Versus
Vijay Kumar Singh & Anr. ...Respondents

Counsel for the Appellants:
Sri Ram Singh, Ms. Deepali Srivastava
Sinha

Counsel for the Respondents:
Sri Nagendra Kumar Srivastava

A. Civil Law - Motor Vehicles Act, 1988-Section
173-Enhancement
of
compensation-.The
deceased in this case was aged 16 years, that is
to say, much less than 40 years-His monthly
notional income would be considered Rs.
11 All. Abdul Hameed Khan & Ors. Vs. Vijay Kumar Singh & Anr.
153
5000/-
The
future
prospects,
which
the
claimants are entitled to add to the deceased's
notional income, going by Rule 220-A(3) of the
Rules of 1998, would be 50%- - The Tribunal
has adopted a multiplier of '16' which does not
conform to the principles laid down in Sarla
Verma Case- Going by the age of the deceased
and the principles laid down in Sarla Verma
Case the applicable multiplier would be '18', the
deceased being in the age bracket of 15-20
years -Thus, Total compensation will be Rs. 9,20,000/-
after applying multiplier 18-As per Rule 220-A(6) of the
Rules of 1998 provides the rate of interest shall be 7%
pendente lite and future till the actual payment. (Para 1
to 41)

B. Filial consortium is the right of the parents to
compensation in the case of an accidental death of a
child. An accident leading to the death of a child causes
great shock and agony to the parents and family of the
deceased. The greatest agony for a parent is to lose
their child during their lifetime. Children are valued for
their love, affection, companionship and their role in the
family unit. (Para 21)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Sarla Verma (Smt.) & ors. Vs DTC & anr..

2. Gopalpuri Jai Prakash & ors. Vs The Mngg.
Dir. APSRTC & ors. MACMA. No. 694 of 2011

3. N. Manjegowda Vs United India Ins. Co. Ltd.
(2014) 3 SCC 584 : (2014) 2 SCC (Civ) 297 :
(2014) 4 SCC (Cri) 634

4. Oriental Ins. Co. Ltd. Vs Deo Patodi (2009) 13
SCC 123 : (2009) 5 SCC (Civ) 29 : (2010) 1 SCC
(Cri) 963

5. M.R. Krishna Murthi Vs New India Assr. Co.
Ltd & ors. (2020) 15 SCC 493

6. Arun Kumar Dwivedi & Anr Vs Sri Bharat
Bhushan Khanna & anr..

7. Municipal Corp. of Greater Bom. Vs Laxman
Iyer & anr.

8. Magma Gen. Ins. Co. Ltd. Vs Nanu Ram @
Chuhru Ram & ors.
9. Rajesh Vs Rajbir Singh (2013) 9 SCC 54 :
(2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817
: (2014) 1 SCC (L&S) 149

10. Santosh Devi Vs NICL (2012) 6 SCC 421 :
(2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160
: (2012) 2 SCC (L&S) 167

11. UPSRTC Vs Trilok Chandra (1996) 4 SCC
362

12. Puttamma Vs K.L. Narayana Reddy (2013)
15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3
SCC (Cri) 574

13. Sushil Kumar & ors. Vs M/s. Sampark
Lojastic Pvt. Ltd & ors.

14. New India Assr. Co. Ltd Vs Urmila Shukla &
ors.

15. NICL Vs Pranay Sethi & ors. (2017) 16 SCC
680

16. Meena Pawaia & ors. Vs Ashraf Ali & ors.
(2021) SCC OnLine SC 1083

(Delivered by Hon'ble J.J. Munir, J.)

This is an appeal by the claimants of
Motor Accident Claim Petition No. 219 of
2004,
seeking
enhancement
of
compensation awarded by the Tribunal.

2. On the 16th of January, 2004,
Abdul Maroof, a youth of sixteen years,
was proceeding on his motorcycle bearing
Registration No. UP 32 AB 2993, at 06:45
a.m., to a certain Sigma Coaching. He had
left home for the coaching centre. At about
7 O'Clock, as Maroof reached the Indian
Press Crossroads, within the local limits of
Police
Station
Colonelganj,
District
Allahabad (now Prayagraj), a truck bearing
Registration No. UP 70 Y 9448, driven at a
high speed and negligently by its driver, hit
the motorcycle on the rear side. The truck
caused the accident, moving to the wrong
side of the road. The impact caused Maroof
154 INDIAN LAW REPORTS ALLAHABAD SERIES
to sustain grievous injuries. The truck
dragged the motorcycle and the victim
across some distance, and turning left
from the Indian Press Road Crossroads,
made good its escape via the Balson
Crossroads.

3. The victim was carried by his
cousin, Parvez Ahmad, who witnessed the
accident, to the Priti Hospital for medical
aid. After administering some treatment,
the victim was referred to the Beli Hospital.
While on way to the Beli Hospital, the
victim
breathed
his
last
on
board
ambulance.

4. A First Information Report1
regarding the incident was lodged by
Parvez Ahmed
with
the
Police
on
16.01.2004 at 08:30 a.m., giving rise to
Crime No. 13 of 2004, under Sections 279,
337, 338, 427, 304A of the Indian Penal
Code, 1860, Police Station Colonelganj,
District Allahabad. The present claim
petition was instituted by the deceased's
father, Abdul Hamid Khan on his own
behalf, and that on behalf of the deceased's
mother, Smt. Kausari Begum, and his sister
Kumari Fauzia Begum.

5. According to the claimant-appellant
Abdul Hamid Khan, the deceased had
passed his intermediate examination in the
first division and was preparing to write his
competitive examination for the purpose of
seeking admission to his undergraduate
engineering course. It was for the said
purpose that he was going to the coaching
institute, when the accident happened. The
deceased would attend the Sigma Physics
Centre in the morning hours, and, in the
evening batch, at the Yes Academy,
Tashkand Road, Civil Lines, Allahabad.
The
deceased's
date
of
birth
was
08.10.1987. The claimant has asserted that
the deceased would earn an estimated sum
of ₹15,000 per month.

6. Opposite party No. 1 to the claim
petition and respondent No. 1 to this
appeal, Vijay Kumar Singh, is the owner of
the offending truck, a DCM make. He shall
hereinafter be called 'the owner'. Opposite
party No. 2 to the claim petition and
respondent No. 2 to this appeal are the
National Insurance Company Limited,
Civil Lines, Prayagraj, who are the insurers
of the offending vehicle. They shall
hereinafter be referred to as 'the insurers'.

7. A written statement was filed on
behalf of the owner. The ownership of the
offending truck was acknowledged, but the
accident was denied. It was further pleaded
that on the date and time of the accident,
the offending truck was insured with the
insurers. In the additional pleas, the case
taken is that the offending vehicle was
being operated by its driver carefully and
slowly. The driver was one Ajay Kumar Pal
son of R.N. Pal, who held a valid driving
license bearing number A/347/2, valid from
18.01.2001 to 12.01.2005. The deceased
was riding his motorcycle rashly and
negligently at the time of the accident. The
sole cause of the accident was the
deceased's negligent driving. The deceased
was a minor. He had no driving license,
authorizing him ride a motorcycle. The
insurers of the motorcycle were not
impleaded, rendering the claim petition bad
for non-joinder of necessary parties. The
deceased had no income and that claimed
for him in Column No. 6 was denied as
incorrect.

8. A separate written statement was
filed on behalf of the insurers. The
allegations in the claim petition were
generally denied. It was said that the
11 All. Abdul Hameed Khan & Ors. Vs. Vijay Kumar Singh & Anr.
155
claimant has not furnished the particulars
of
the
policy
and
other
required
information in relation to it. In the absence
of full particulars of the insurance policy,
the insurers could not say much about their
liability. In the additional pleas, it was
asserted that the registration certificate, the
driving license and the road permit of the
offending vehicle were not filed by the
claimant along with the petition. The
accident did not take place in the manner
alleged by the claimant. The claim was
asserted by the insurers to be false and
bogus, so much so, that according to them,
the accident never took place. It was also
averred that the claimant had not annexed
documents
or
furnished
requisite
information in support of his claim, which
disentitles him to relief. The compensation
claimed was castigated as inflated and
imaginary.

9. About the offending vehicle, it was
pleaded that it was being driven in violation
of the terms and conditions of the insurance
policy, when the accident happened. The
driver of the offending truck had no valid
and effective driving license to drive the
particular kind of vehicle. The insurers, on
the last plea, said that the Insurance
Company
are
not
liable
to
pay
compensation, amongst others.

10. On the pleadings of parties, the
following issues were framed :

(i) Whether on 16.01.2004, at
about 7 O'Clock in the morning, near the
Indian Press Crossroads, situate within the
local limits of Police Station Colonelganj,
Allahabad
when Abdul
Maroof
was
proceeding on his motorcycle bearing
registration No. UP 32 AB/2993 from home
to his coaching (institute) Truck No. UP 70
AY/9948, driven at a high speed and
negligently by its driver, hit the motorcycle,
resulting in Abdul Maroof's death?

(ii)
Whether
the
accident
happened solely on account of the
deceased's riding at a high speed and
negligently?

(iii) Whether the truck driver had
a valid and effective driving license at the
time of the accident?

(iv) Whether the truck, at the time
of the accident, was insured with the
Insurance Company in accordance with
law?

(v) Whether the claimants are
entitled to compensation? If yes,from
whom?

11. The Tribunal answered Issue No.
3 in the affirmative, holding that the truck
driver held a valid driving license on the
date and time of the accident. Issue No. 4
was likewise answered in favour of the
claimant and against the insurers. Issue
Nos. 1 and 2 were decided together by the
Tribunal, while writing the impugned
judgment. Issue No. 1 was answered in
favour of the claimant, holding that on the
basis of the evidence on record, it is well
established that the driver of the offending
truck, driving it at a high speed and
negligently, caused the accident, resulting
in injuries to the victim that led to his
death. However, while answering Issue No.
2, 25% negligence was apportioned to the
deceased and 75% to the driver of the
offending truck. The Tribunal, thus, entered
a finding of contributory negligence.

12. So far as the assessment of
compensation
is
concerned,
it
was
answered by the Tribunal in its decision on
Issue No. 5. It was held that the deceased
had
a
monthly
income
of
₹3,000.
Apportioning
out
25%
towards
contributory
negligence,
the
monthly
156 INDIAN LAW REPORTS ALLAHABAD SERIES
income was held to be ₹2250. The
multiplier of '16' was adopted and
deduction made towards personal expenses
was one-third of the deceased's income.
Nothing was awarded towards future
prospects or loss of consortium. ₹2,000/-
was awarded under the head of funeral
expenses.
A
total
compensation
of
₹1,46,000 was granted by the Tribunal
together with simple interest at the rate of
6% per annum from the date of institution
of claim petition until realization. The
insurers were directed to deposit the
awarded compensation with the Tribunal
within three months and apportionment
made in the manner that all the three
dependants were held entitled to an equal
share.

13. Heard Ms. Deepali Srivastava
Sinha, learned Counsel for the claimants
and Mr. Nagendra Kumar Srivastava,
learned Counsel appearing for the insurers.
No one appears on behalf of the owners.

14. There are two points, broadly on
which this appeal has been pressed on
behalf of the claimants. These relate to the
findings on the issues of contributory
negligence and the quantum.

15. So far as contributory negligence
is concerned, it is argued by learned
Counsel for the claimants Ms. Deepali
Srivastava
Sinha
that
the
Tribunal's
finding, holding contributory negligence on
the deceased's part to the extent of 25% on
ground that he had no driving license to
ride the motorcycle, is manifestly illegal. It
is argued that the mere fact that the driver
of a vehicle has operated it without a
driving license may constitute an offence
under the Motor Vehicles Act, 19882 but
that ipso facto cannot give rise to an
inference of negligence on his part. In
support of her contention, learned Counsel
for the claimants has placed reliance upon
the decision of the Supreme Court in
Sudhir Kumar Rana v. Surinder Singh
and others3. It is next submitted that the
respondents have failed to produce any
evidence aliunde to substantiate the fact
that the deceased, in any way, contributed
to the accident. The truck hit the
motorcycle from the rear side and the
Tribunal has otherwise held that the
accident was caused by the sole negligence
of the driver of the offending truck.
Nevertheless, the Tribunal, according to the
learned Counsel, held in manifest error that
the deceased was a contributor to the
accident for the mere fact that he did not
hold a valid license to drive a motor vehicle
of the kind that he was riding, given his
age, the cubic capacity of the vehicle's
engine and the provisions of Section 4 of
the Act of 1988.

16. On the other hand, Mr. Nagendra
Kumar Srivastava, learned Counsel for the
insurers has submitted that the Tribunal's
finding
regarding
the
contributory
negligence is absolutely flawless, because,
it is logical to draw the inference of
negligence in some measure on the driver's
part, whom the law holds ineligible to
possess a license, authorizing him to drive
a vehicle of the kind that he was operating
in a public place.

17. On the other issue, that is about
the quantum of compensation awarded,
learned Counsel for the claimants submits
that
the
award
has
made
a
very
conservative estimate of the deceased's
monthly income, given his educational
qualification and his potential in the near
future. It is also argued that the multiplier
adopted is far on the lower side, and
nothing has been awarded towards future
11 All. Abdul Hameed Khan & Ors. Vs. Vijay Kumar Singh & Anr.
157
prospects. It is also urged that the Tribunal
has failed to grant adequate compensation
in that, that nothing has been awarded
towards the loss of parental consortium to
the deceased's parents, who are two of the
three amongst the claimants. Also, nothing
has been awarded towards loss of estate,
and the funeral expenses ordered are
grossly inadequate.

18. Mr. N.K. Srivastava, on the other
hand, submits that given the time and the
prevalent price index when the accident
occurred, the Tribunal has awarded just
compensation and the award does not call
for interference on ground of inadequacy.

19. This Court has considered the
submissions advanced on behalf of the
parties by the learned Counsel and perused
the record as also the judgment impugned.

20. So far as the issue of contributory
negligence is concerned, looking to the
site-plan and the testimony of the eyewitness P.W.2, it is evident that the
offending truck had hit the motorcycle from
the rear end. The motorcycle was moving
on the left-hand side, according the rule of
the road. The offending truck hit from the
rear and dragged the motorcycle across a
considerable distance, before escaping from
the
Balson
Crossroads.
Thus,
the
negligence of the truck is writ large.

21. P.W.2, who had seen the accident
from a distance of about 10 yards, as he
says
in
his
cross-examination,
has
described it in the following words :

.....िुघदटिा सड़क पर बाएं िरि किदिगंज साइड में
हुई थी। अल्रेड पाकद की िरि िुघदटिा िहीं हुई थी। यह िुघदटिा
नबिकुि चौराहे पर हुई थी। इंनडयि प्रेस चौराहे पर हुई थी। िुघदटिा
मेि रोड (अमर रोड) पर हुई थी। िुघदटिा के समय ट्रक मृिक के
शरीर के ऊपर चढ़ गयी थी मोटरसाइनकि के नपछिे नहस्से पर भी
चढ़ गयी थी।......

22. The Tribunal has returned a
finding to the following effect regarding the
truck driver's negligence :

......इस प्रकार मौनखक साक्ष्य एवं अनभिेखीय
साक्ष्य से यानचका के कथिों को पयादप्त समथदि नमििा है और यह
भिीभांनि प्रमानर्ि होिा है की प्रश्नगि ट्रक के चािक द्वारा ट्रक को
िेजी एवं िापरवाही से चिािे के कारर् यह िुघदटिा हुई नजसके
ििस्वरूप पहुंची चोटों के कारर् मृिक की मृत्यु हुई। ......

23. But, given this evidence and the
finding returned by the Tribunal, regarding
the truck driver's exclusive negligence, he
has apportioned 25% of the blame upon the
deceased on the ground alone that he was
riding a motorcycle of Pulsar make, much
above 50 c.c., while his age was 16 years.
He was held to be riding in a public place.
The Tribunal has, therefore, inferred a
contributory negligence of 25% on the
deceased's part, solely for the reason that he
was riding the motorcycle in a public place,
which, by the terms of his learner's license
and given his age, he was not authorized to
operate all by himself. The contributory
negligence has, therefore, been constructed
by the Tribunal on account of a violation of
the provision of the Act of 1988 on the
deceased's part in driving the motorcycle in
a public place, which the law did not permit
him to do. It is not the Tribunal's finding
that for a fact, the deceased was, in any
way, contributory to the accident or, in any
manner, actually negligent.

24. There is high authority in favour
of the view that a person driving a vehicle
without a license is, by itself, no reason to
infer negligence on that person's part. The
principle came to be laid down by the
Supreme Court in Sudhir Kumar Rana
158 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra). In that case, the injured claimant
was a 17 and a half year old youth, who
was riding a two-wheeler on the fateful day.
He met with an accident with a mini truck,
that was rashly and negligently driven. He
sustained a number of injuries, on account
of which, the claim was brought. The
Tribunal and the High Court both thought
that for the reason alone that the claimant
did not possess a driving license, he must
be held to have contributed to the accident.
In Sudhir Kumar Rana, it was held by
their Lordships of the Supreme Court:

^9. If a person drives a vehicle
without a licence, he commits an offence.
The same, by itself, in our opinion, may not
lead to a finding of negligence as regards
the accident. It has been held by the courts
below that it was the driver of the mini
truck
who
was
driving
rashly
and
negligently. It is one thing to say that the
appellant was not possessing any licence
but no finding of fact has been arrived at
that he was driving the two-wheeler rashly
and negligently. If he was not driving
rashly and negligently which contributed to
the accident, we fail to see as to how, only
because he was not having a licence, he
would be held to be guilty of contributory
negligence.

10. The matter might have been
different if by reason of his rash and
negligent driving, the accident had taken
place.

25. The principle in Sudhir Kumar
Rana governs the fate of the issue
regarding contributory negligence arising
in this case. The principle in Sudhir
Kumar Rana blissfully was laid down in
the background of facts that are strangely
similar, including the finding on the point
of negligence for a fact. Indeed, it is one
thing to say that the deceased had, in riding
a motorcycle that he was not authorized by
his age and the kind of license held,
committed an offence punishable by law,
and, quite another to infer from the
commission
of
that
offence
or
contravention of the provisions of the Act
of 1988, a contribution on his part to the
negligence, leading to the accident. There is
no principle that may give rise to an
inference of something that is constructive
negligence, merely because a vehicle is
operated in a public place by an unlicensed
person; or a person not authorized to drive
the vehicle by the terms of the license that
he holds. Negligence in an accident is
essentially a tort and has to be proved for a
fact by evidence aliunde. The law cannot
construct the negligence, at least, in the
driving of motor vehicle, without a valid
license.

26. Mr. Nagendra Kumar Srivastava
has attempted to persuade this Court to
infer contributory negligence by the fact
alone that the deceased was riding a
motorcycle
without
a
valid
license,
invoking something like the principle of res
ipsa loquitur. There is no principle or
authority to support the view that the
driving of motor vehicle without a driving
license is an inherently hazardous activity.
The principle is rather to the contrary, as
laid down by the Supreme Court in Sudhir
Kumar Rana. It is held accordingly.

27. This takes the matter to the issue
of adequacy of compensation awarded by
the Tribunal. The income of the deceased
has been held to be ₹3000 per month by the
Tribunal, taking note of the fact that the
deceased had applied for admission to an
engineering college and would have gained
admission to one college or the other. The
degree that he would have earned would
have led to a job in Government or semi-
11 All. Abdul Hameed Khan & Ors. Vs. Vijay Kumar Singh & Anr.
159
Government sector, yielding him an income
of ₹15,000-20,000 per month. There would
be prospects of promotion and increase in
income also. The Tribunal has found that
the deceased's high school and intermediate
certificates have been annexed, a perusal
whereof shows that he has passed those
examinations in the first division. The
deceased was also a Bharat Scout and an
Uttar Pradesh Scout. A certificate was
produced, indicating that he was studying
in a coaching institute in order to facilitate
his selection in the admission test to the
B.Tech. course.

28. The Tribunal, relying upon the
decision
of
the
Supreme
Court
in
Municipal
Corporation
of
Greater
Bombay v. Laxman Iyer and another4
has held that an income of ₹3000 per
month can be conveniently credited to the
deceased. 25% was apportioned away on
account of the contributory negligence and
a multiplier of '16' was adopted. The
Tribunal directed a deduction of one-third
to be made towards personal and living
expenses of the deceased. There is then a
further deduction of one-third directed by
the Tribunal on ground that the deceased
would have spent that sum on his family,
once he got married. Therefore, effectively,
the Tribunal had directed a deduction of
two-thirds to be made out of the
dependency worked out.

29. In order to assess the deceased's
income, it has to be borne in mind that this
is not a case where there is either an
assertion or evidence about the unfortunate
youth being productive at the time of his
demise. There is good authority, however,
to infer a projected income for a youth,
making a good a career for himself, about
which there is evidence. I had occasion to
consider this issue in Arun Kumar
Dwivedi and another v. Sri Bharat
Bhushan Khanna and another5. In Arun
Kumar Dwivedi (supra) it was observed :

18. The principles regarding
assessment of compensation in case of
persons, who do not have an income in
presenti, but are students, was considered
by the Supreme Court in M.R. Krishna
Murthi
v.
New
India
Assurance
Company Limited and others, (2020) 15
SCC 493, where it was held:

"24. From the conjoint reading of
the aforesaid judgments, inter alia, the
following principles can be culled out
which would be relevant for deciding the
instant appeal:

24.1. In those cases where the
victim of the accident is not an earning
person but a student, while assessing the
compensation for loss of future earning, the
focus of the examination would be the
career prospect and the likely earning of
such a person in future. For example, where
the claimant is pursuing a particular
professional course, the poser would be:
what would have been his income had he
joined a service commensurating with the
said course. That can be the future earning.

24.2. There may be cases where
the victim is not, at that stage, doing any
such course to get a particular job. He or
she may be studying in a school. In such a
case, future career would depend upon
multiple
factors
like
the
family
background,
choice/interest
of
the
complainant to pursue a particular career,
facilities available to him/her for adopting
such a career, the favourable surrounding
circumstances to see which would have
enabled the claimant to successfully pick
up the said career, etc. If the chosen field is
employment, then the future earning can be
taken on the basis of salary and allowances
160 INDIAN LAW REPORTS ALLAHABAD SERIES
which are payable for such calling. In case,
career is a particular profession, the future
earning would depend on host of other
factors on the basis of which chances to
achieve success in such a profession can be
ascertained.

24.3. There may be cases like
Deo Patodi [Oriental Insurance Co. Ltd. v.
Deo Patodi, (2009) 13 SCC 123 : (2009) 5
SCC (Civ) 29 : (2010) 1 SCC (Cri) 963]
where even a student, the claimant would
have made earnings on part-time basis or
would have received offer for a particular
job. In such cases, these factors would also
assume relevance.

24.4. After ascertaining the likely
earning of the victim in the aforesaid
manner, the nature of injuries and disability
suffered as a result thereof would be kept in
mind while determining as to how much
earning has been affected thereby. Here,
impact of injuries on functional disability is
to be seen. In case of death of victim, it
would result in total loss of earning. In the
case of injuries, the nature of disability
becomes important. Such an exercise was
undertaken in N. Manjegowda case [N.
Manjegowda v. United India Insurance Co.
Ltd., (2014) 3 SCC 584 : (2014) 2 SCC
(Civ) 297 : (2014) 4 SCC (Cri) 634]."

19. In Gopalpuri Jai Prakash
and others v. The Managing Director,
APSRTC and others, MACMA. No. 694
of 2011, decided on 08.09.2022, the
Telangana High Court considered the
income of a student studying in the
intermediate course for the purpose of
award of compensation to his legal
representatives. The student in that case
had
died
in
a
motor
accident
on
21.10.2006. While considering the question
of income of student in Gupalpuri Jai
Prakash (supra), it was observed:

"9. The petitioners stated that by
the date of the accident Prakash/deceased
was aged 18 years and was brilliant student
studying intermediate. Further by giving
tuitions, he used to earn Rs. 6,000/- per
month.

10. Out of the documents filed by
the petitioners, the driving licence/Ex. A-5,
S.S.C. certificate/Ex. A-7 and passport/Ex.
A-10 are reflecting that the date of birth of
Prakash/deceased is 09.10.1989. Thus, the
age of Prakash/deceased by the date of the
accident is 18 years. With regard to income
though the petitioners placed the evidence
of PW-2 to support the claim that the
deceased was giving tuitions, the material
particulars as to how many students and the
fees per student were missing. However,
having regard to the pleaded academic
record in Ex. A-7, A-8 and A-9 a monthly
income of Rs. 5,000/- can safely be taken
on notional basis."

20.
Though
Gupalpuri
Jai
Prakash was a case where it was asserted
that the deceased had an actual income
earned out of providing private tuitions, but
the Court assessed his income on a notional
basis at a figure of Rs.5000/- considering
his academic record. Here, the deceased
was a student of Class XI. This Court finds
on a perusal of his mark-sheets for the High
School Examination, 2004 conducted by
the Central Board of Secondary Education
dated 28.05.2004 that the deceased had
averaged between C and D Grade, also
earning a B, but nevertheless was a student
of a good school, affiliated to the Central
Board of Secondary Education. He had
interest in extracurricular activities and
there are certificates on record of his
participation in these activities.

21. PW-1, the deceased's father
Arun Kumar Dwivedi has said in his
examination-in-chief that his son was
reading in Class-XI in the Woodbine
Gardenia School, Kanpur and was taking a
11 All. Abdul Hameed Khan & Ors. Vs. Vijay Kumar Singh & Anr.
161
foundation course to upgrade his skills in
writing
his
Engineering
Entrance
Examination. In his examination-in-chief, it
is further said that his son had read from
Nursery to Class X in the Sir Padampat
Singhania Education Centre, Kanpur, U.P.,
affiliated to the CBSE. The witness has also
stated that after passing his Engineering
Examination, his son wanted to join the
NDA. Considering the totality of evidence,
it must be remarked that the deceased was a
student, reading in a good institution at the
intermediate level. Going by the guidelines
in Paragraph No.24.2 of the report in M.R.
Krishna Murthi (supra), it must be
remarked that the deceased had an
inclination to seek admission to an
Engineering Course and aspired to join the
NDA. The fact that he had passed his High
School from a good institution and was
pursuing
his
studies
to
earn
his
Intermediate Examination Certificate also
from a good institution, both affiliated to
the Central Board of Secondary Education,
besides the fact that his family were
spending money, providing him auxiliary
coaching to upgrade his skills for the
purpose
of
writing
his
competitive
examination
for
selection
to
the
Engineering Course, all go to show that he
had good prospects of being selected in an
Engineering
Course
and
securing
a
rewarding job for himself. The mere fact
that the deceased's High School Certificate
does not carry very high grades is not an
index about his future performance. The
schools where he was studying and the fact
that his family were funding his education
in a good school, are dependable factors to
infer a good future for the deceased in
terms of his productivity.

22. In the opinion of this Court,
bearing in mind the guidance on high
authority regarding assessment to be made
about the income of students on a notional
basis and the circumstances of the
deceased, the time when the accident
happened, that is to say, the year 2004,
when an unskilled daily-wagers would be
earning about Rs.3000/- per month, it
would be fair to find for the deceased a
notional income of Rs.5000/- per month.

30. In the present case, the deceased
was aged 16 years and had already earned
his intermediate examination certificate. A
perusal of the high school certificate shows
him to have passed that examination in the
first division, earning a distinction in
Mathematics, appearing as a regular
student from the Government College,
Allahabad
in
the
year
2001.
The
intermediate examination certificate shows
that the deceased passed that examination
in the first division, earning a distinction in
Chemistry and Hindi. There are documents
on record to show that he was a member of
the Bharat Scouts and Guides and also the
Uttar Pradesh Bharat Scouts and Guides in
his college. He had also earned a certificate
in the year 2000 passing the Bharat
Sanskriti
Gyan
Pariksha
from
the
Antarashtriya Gayatri Pariwar, Shanti Kunj,
Haridwar. The certificates relating to the
deceased's activities as a scout and also as a
member of the civil defence show that the
deceased was a dynamic youth, with multifaceted interests and a good academic
record. There are then receipts, which
indicate that he was reading to augment his
scholastic abilities by coaching at the
Sigma Physics Centre, Allahabad and the
Yes Academy, Civil Lines, Allahabad, both
of which he would attend in the morning
and evening shifts, respectively. There is a
certificate issued by the Sigma Physics
Centre, saying that he was studying at the
institute, preparing to write his engineering
entrance test. The certificate is dated
25.01.2004. There is also on record an
162 INDIAN LAW REPORTS ALLAHABAD SERIES
admit card for the All India Engineering/
Pharmacy/Architechture
Entrance
Examination, 2004 convened by the
Central Board of Secondary Education on
20.05.2004, and another admit card issued
by the Union Public Service Commission,
New Delhi, showing the deceased to have
sat the National Defence Academy and
Naval Academy Examination, 2004 held on
04.04.2004. There is nothing about results
of these competitive examinations, but
nevertheless, these are positive pointers
towards a promising career profile for the
deceased. The evidence also shows that the
deceased's family were supportive of his
endeavours and he was undergoing intense
scholastic training in the coaching institute
to
successfully
attempt
his
B.Tech.
Engineering entrance test.

31. In the opinion of this Court, given
these circumstances and what I have held in
Arun Kumar Dwivedi which incidentally
was a case that arose out of an accident
very contemporaneous to the present one in
time, the deceased must be credited with an
income of ₹5000/- per month. The annual
income of the deceased has to be worked
out accordingly.

32. The Tribunal has adopted a
multiplier of '16' which does not conform
to the principles laid down in Sarla Verma
(Smt.) and others vs. Delhi Transport
Corporation and another6. Going by the
age of the deceased and the principles laid
down
in
Sarla Verma
(supra)
the
applicable multiplier would be '18', the
deceased being in the age bracket of 15-20
years. The finding of the Tribunal,
therefore, requires to be modified on this
score.

33. Again, the Tribunal has erred in
deducting two-thirds towards personal and
living expenses of the deceased by
telescoping
the
deceased's
personal
expenses currently incurred, pegged at a
one-third of his income, with an added onethird after his marriage. That does not
appear to be the trite principle. In Sarla
Verma it has been held :

31. Where the deceased was a
bachelor and the claimants are the parents,
the deduction follows a different principle.
In regard to bachelors, normally, 50% is
deducted as personal and living expenses,
because it is assumed that a bachelor would
tend to spend more on himself. Even
otherwise, there is also the possibility of his
getting married in a short time, in which
event the contribution to the parent(s) and
siblings is likely to be cut drastically.
Further, subject to evidence to the contrary,
the father is likely to have his own income
and will not be considered as a dependant
and the mother alone will be considered
as a dependant. In the absence of
evidence to the contrary, brothers and
sisters
will
not
be
considered
as
dependants, because they will either be
independent and earning, or married, or
be dependent on the father.

34. Clearly, therefore, the deceased
being a bachelor, a deduction of 50%
towards his personal and living expenses is
all that has to be made and no more.

35. So far as the future prospects are
concerned, the Tribunal has not awarded
anything. The deceased did not have an
income in presenti. He was neither selfemployed nor a person working on a fixed
salary. His income has been determined by
projecting a future for him on a notional
basis. How future prospects in a case like
this are to be determined, if at all, was
considered by me in Arun Kumar
11 All. Abdul Hameed Khan & Ors. Vs. Vijay Kumar Singh & Anr.
163
Dwivedi. In Arun Kumar Dwivedi, I held
:

25. Nothing has been awarded by
the Tribunal towards the future prospects of
the deceased. In view of the decision of the
Supreme Court in National Insurance
Company v. Pranay Sethi and others
(2017) 16 SCC 680, the benefit of future
prospects have been extended to the selfemployed and those working on a fixed
salary, but here the deceased was neither
self-employed nor a person working on a
fixed salary. He was a young boy with a
future to look to and, therefore, his income
has been assessed notionally. The question
is whether in the case of notional income,
future prospects are to be granted as well.
This question fell for consideration of the
Supreme Court in Meena Pawaia and
others v. Ashraf Ali and Others, 2021
SCC OnLine SC 1083. The question and
the holding figure in Paragraph Nos.11 and
13 of the report of their Lordships' decision
in Meena Pawaia (supra), where it has
been observed:

"11. The next question which is
posed for the consideration before this
court is whether anything further is
required to be added towards the future rise
in income? It is submitted that on behalf of
the Union of India that as the deceased was
not serving and earning at the time of
accident/death nothing further is to be
added towards the future prospect/future
rise in income. The aforesaid cannot be
accepted.

13. We see no reason why the
aforesaid principle may not be applied,
which apply to the salaried person and/or
deceased self employed and/or a fixed
salaried deceased, to the deceased who was
not serving and/or was not having any
income at the time of accident/death. In
case of a deceased, who was not earning
and/or not doing any job and/or self
employed at the time of accident/death, as
observed herein above his income is to be
determined on the guesswork looking to the
circumstances narrated hereinabove. Once
such an amount is arrived at he shall be
entitled to the addition over the future
prospect/future rise in income. It cannot be
disputed that the rise in cost of living
would also affect such a person.