# Arun Kumar Dwivedi & Anr v. Sri Bharat Bhushan Khanna & Anr

- **Citation:** (2023) 7 ILRA 543
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-01
- **Case number:** First Appeal from Order No. 165 of 2006
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-dwivedi-anr-v-sri-bharat-bhushan-khanna-anr-50377
- **Pages:** 16

## Headnote

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation-deceased was a son of the
claimants/parents- He was the student of
Class 11th-Annual income of the deceased
is considered to be Rs. 60,000/- 50%
added towards future prospects as per
Rules 220-A(3) of 1998-Hence , total
compensation granted Rs. 9,20,000/- @
7%.(Para 1 to 33)

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 31)

The appeal is partly allowed. (E-6)
List of Cases cited:

## Text

_Characters 0–39,769 of 54,037. This is a partial read: ask again with offset=39769 for what follows._

7 All. Arun Kumar Dwivedi & Anr. Vs. Sri Bharat Bhushan Khanna & Anr.
543
concerned Magistrate/Court by passing a
reasoned and speaking order.

10 . Accordingly this writ petition is
disposed of.
----------
(2023) 7 ILRA 543
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2023

BEFORE

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

First Appeal from Order No. 165 of 2006

Arun Kumar Dwivedi & Anr. ...Appellants
Versus
Sri Bharat Bhushan Khanna & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Arun Kumar Mishra, Sri Vidya Kant Shukla

Counsel for the Respondents:
Sri Saurabh Srivastava

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation-deceased was a son of the
claimants/parents- He was the student of
Class 11th-Annual income of the deceased
is considered to be Rs. 60,000/- 50%
added towards future prospects as per
Rules 220-A(3) of 1998-Hence , total
compensation granted Rs. 9,20,000/- @
7%.(Para 1 to 33)

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 31)

The appeal is partly allowed. (E-6)
List of Cases cited:

1. Saroj Devi & ors. Vs Royal Sundaram Alliance
Ins. Co. Ltd. & anr. (2016) 2 TAC 281 All..

2. V. Mekala Vs M. Malathi & Anr. (2014) 11
SCC 178

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

4. Gopalpuri Jai Prakash & ors. Vs The Managing
Dir, APSRTC & ors., MACMA. No. 694 of 2011

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

6. Gyan Chand Jain & ors. Vs Permanand & ors.
(2003) 1 TAC 490

7. Sarla Verma(Smt.) & ors. Vs DTC (2009) 6
SCC 121

8. `Magma General Ins. Co. Ltd. Vs Nanu Ram
@ Chuhru Ram & ors. (2018) 18 SCC 130

9. National Ins. Co. Vs Pranay Sethi & ors.
(2017) 16 SCC 680

10. New India Assur. Co. Ltd Vs Urmila Shukla &
ors. (2021) SCC OnLine SC 822

11. Sushil Kumar & ors. Vs M/s. Sampark
Lojastic Pvt. Ltd & ors. (2017) 35 LCD 1311

12. P.O. Meera & anr..Vs Ananda P. Naik & ors.
(2022) SCC OnLine Ker 546

13. Branch Manager, Future General India Ins.
Co. Ltd. Bengaluru Vs Varsha S.L. (2019) SCC
OnLine Kar 3498

14. Shashikala & ors. Vs Ganga-lakshmamma &
anr.. (2015) 9 SCC 150

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

This is a claimants appeal arising out
of a judgment and award passed by the
learned District Judge/ Motor Accident
544 INDIAN LAW REPORTS ALLAHABAD SERIES
Claims Tribunal, Kanpur Nagar dated
29.08.2005 passed in M.A.C.P. No. 103 of
2005,
seeking
enhancement
of
the
compensation awarded.

2. The claimants-appellants are the
claimant-petitioners of M.A.C.P. No. 103
of 2005 instituted before the Tribunal
seeking compensation on account of the
death of their son in a motor accident. The
claimants-appellants are the father and
mother
of
the
deceased
and
shall
hereinafter
be
referred
to
as
the
"claimants."

3. The claimants' case briefly put is
this:

Mohit Dwivedi was a student of Class
XI at Woodbine Gardenia School, situate at
G.T. Road, Kalyanpur, Kanpur Nagar. On
November, the 9th, 2004, after attending
school, he was proceeding to attend his
coaching classes near Gurudev Palace,
Kakadev by a Scooter, bearing Registration
No. UP-78AM-9142. The aforesaid scooter
was owned by the deceased's father, Arun
Kumar Dwivedi, one of the claimants. At
about 01:45 in the afternoon as Mohit
reached a place facing Dalhan Anusandhan
Railway
Crossing,
a
truck
bearing
Registration No. UP-70L-9527 moving
from the opposite direction, swerved to the
wrong side of the road and hit Mohit's
scooter. As a result of the impact, Mohit
was thrown down from the scooter and
sustained grievous injuries. The scooter
was also damaged. A multitude of persons
gathered at the site of the accident and the
offending truck was apprehended on the
spot. Some of those men conveyed Mohit
to the hospital but he passed away in
transit. He was the claimants' elder son and
very intelligent. He was reading to write his
competitive test for admission to the
Bachelor of Engineering course. He would
attend coaching class after school hours for
the said purpose. Besides studies, Mohit
would take part in extracurricular activities.
The deceased would have gone on to
become
an
Engineer
and
earn
an
approximate sum of Rs 50,000/- per month
but for his untimely demise. The claimants
say that they have been deprived of his
services and financial help in their old
days. They have suffered physical and
mental
agony,
which
cannot
be
compensated in monetary terms. At the
time of his demise, the deceased was aged
about 19 years. His monthly income was
Rs. 25,000/-. An FIR about the incident
was lodged at P.S. Kalyanpur, leading to
registration of Crime No. 692 of 2004,
under Sections 279, 304-A and 302 IPC
against Ram Magan, the truck driver on
09.11.2004 at 04:00 p.m.

4. The claimants prayed that a sum of
Rs. 32,76,000/- along with interest @ 18%
per annum be awarded to them in
compensation.

5. One Bharat Bhushan Khanna is the
owner of the offending vehicle. He was
impleaded as opposite party no. 1 to the
claim petition. Before us he is impleaded as
respondent no. 1 to the appeal. The truck
owner shall hereinafter be called as the
'owner".
The
New
India
Assurance
Company Limited through its Regional
Officer, Kanpur Nagar are the insurers of
the offending truck. They were impleaded
as opposite party no. 2 to the claim petition
and respondent no. 2 to this appeal. The
aforesaid
Insurance
Company
shall
hereinafter be called as the 'Insurers'.

6. A written statement was filed on
behalf of the owner. He has admitted being
the registered owner of the offending truck.
7 All. Arun Kumar Dwivedi & Anr. Vs. Sri Bharat Bhushan Khanna & Anr.
545
He has pleaded that the offending truck was
insured with the Insurers from 04.04.2004
to 03.04.2005. According to the owner, the
accident did not take place on account of
rash and negligent driving by the truck
driver. The driver of the truck held a
valid
driving
license.
He
was
an
experienced driver. The accident was
caused due to the negligence of the
deceased. A plea has been raised that the
registered owner of the scooter and its
Insurer have not been impleaded as
parties to the claim petition, rendering it
bad for non-joinder of the necessary
parties. The compensation claimed is
excessive. It is pleaded that if the owner
be found liable, the burden would go to
the Insurers. The Insurers have filed a
separate written statement and generally
denied the claimants' case. According to
the Insurers, the factum of the accident
and the involvement of the offending
truck therein is denied. They have
pleaded that no accident was caused by
the offending truck in the manner
alleged by the claimants. There is in the
alternative a plea to the effect that the
accident, if any, was caused due to the
deceased's negligence. The driver of the
offending truck was not holding a valid
and effective license on the date of the
accident.

7. There is a plea on behalf of the
Insurers that Mohit Dwivedi was a minor
and did not hold a driving license on the
date of the accident.. The accident took
place involving the offending truck and
the ill-fated scooter but the Owner and
the Insurer of the scooter have not been
impleaded as opposite-parties to the
claim-petition. The Insurers also pleaded
that they do not admit the insurance
policy claimed by the owner due to want
of
particulars.
The
amount
of
compensation claimed is castigated as
excessive. The Insurers say that the
claim petition deserved to be rejected.

8. On the pleadings of parties, the
Tribunal framed the following issues:

"1. Whether the accident took place on
9.11.04 at about 1.45 AM (sic PM) on the
G.T.Road,
infront
of
DALHAN
ANUSANDHAN Railway Crossing, within
the local limits of P.S. Kalyanpur, KanpurNagar, due to rash and negligent driving of
Truck No. UP-70L-9527 by its driver, as
alleged in the petition? If so, whether the
death of Sri Mohit Dwivedi has been
caused, as a result of the said accident?

2. Whether the accident in question
took place due to rash and negligent driving
of Scooter No. UP-78AM-9142 by the
deceased himself?

3. Whether the driver of the truck in
question was not holding a valid and
effective driving licence on the date of
accident?

4. Whether the petitioners are entitled
to get any compensation? If so, from whom
and to what extent?

5. To what relief, if any, is the
petitioners entitled?"

9. The claimants examined in support
of their case, Arun Kumar Dwivedi as PW1 and Ritesh Kumar as PW-2. Documentary
evidence was also produced which will be
discussed during the course of judgment as
much as is relevant to the issue involved in
this appeal. The Insurers did not produce
any evidence and against the owner, the
claim proceeded ex parte before the
Tribunal.

10. Issues nos. 1 and 2 that pertain to
negligence and contributory negligence
were taken up together by the Tribunal
546 INDIAN LAW REPORTS ALLAHABAD SERIES
holding that the accident was caused due to
rash and negligent driving of the truck
driver and Mohit's death was caused on
account
of
injuries
sustained
in
consequence of the said accident. It was
further held that the accident did not
happen due to rash and negligent driving by
the deceased. Thus, the case of contributory
negligence was negatived by the Tribunal.

11. Issue no. 3 was answered in the
affirmative holding that the driver of the
offending truck held a valid and effective
driving license on the date of accident.
Issue nos. 4 and 5 which are overlapping
were decided holding that claimants are
entitled to compensation in the sum of Rs.
1,54,500/-, which the Insurers are liable to
indemnify.
The
claim
petition
was,
accordingly, allowed with 7% interest per
annum on the compensation awarded,
reckoned from the date of institution of the
claim petition, until realization. There is a
further direction in the award impugned
made
by
the
Tribunal,
directing
apportionment of compensation payable to
the extent of 50% each between the two
claimants.

12. Heard Mr. Vidya Kant Shukla,
learned Counsel for the claimants and Mr.
Saurabh Srivastava, learned counsel for the
Insurers. No one appeared for the owner.

13. It must be noticed at the outset
that no cross appeal or cross objection has
been preferred, either on behalf of the
Insurers or the owner. As such, there is no
cause or occasion for this Court to examine
the findings of the Tribunal recorded on
Issues Nos. 1, 2 and 3. Those must be held
to have attained finality inter partes.

14. This appeal has been pressed on
behalf
of
the
claimants,
seeking
enhancement of the compensation awarded.
While returning findings on Issue No. 4,
the Tribunal has taken note of the fact that
the deceased was a promising student,
reading in Class XI at Woodbine Gardenia
School, Kalyanpur at the time of his
untimely demise. He was also preparing to
write
his
entrance
examination
for
admission to the undergraduate engineering
course. The Tribunal has remarked that the
life and career of a person is fraught with
uncertainties. According to the Tribunal in
due course after earning his degrees, the
deceased may have established himself in
life and gone on to help the claimants in the
future. The Tribunal has then said that since
the deceased had no income, his notional
income shall be deemed to be 15000/- per
annum. To this a multiplier of 15 has been
applied and a deduction of 1/3rd made
towards personal and living expenses. It is
on the foot of the aforesaid parameters that
a substantive dependency of Rs. 1,50000/-
has been determined by the Tribunal. In
addition, a sum of Rs. 2000/- has been
awarded towards funeral expenses, Rs.
2000/- towards loss of estate and general
damages. It is in this manner that a total of
sum of Rs. 1,54,000/- has been assessed to
be the compensation payable by the owner
and Insurers, with obligation on the
Insurers to satisfy the award.

15. Learned Counsel for the claimants
has criticized the Tribunal's approach in
assessing the compensation based on a very
conservative notional income for the
deceased. It is also argued that the Tribunal
ought to have awarded future prospects
which ought to be awarded even in those
cases that proceed on the foot of a notional
income. Learned counsel for the claimants
has placed reliance in support of his
contention upon a Bench decision of this
Court in Saroj Devi and others v. Royal
7 All. Arun Kumar Dwivedi & Anr. Vs. Sri Bharat Bhushan Khanna & Anr.
547
Sundaram Alliance Insurance Co. Ltd.
and Another, 2016 (2) TAC (281)(All.). In
Saroj Devi (supra), it was held that the
notional income could not be less than Rs.
3000/- per month and future prospects
would have to be added to the extent of
50%.

16. Learned Counsel for the Insurers has
supported the impugned judgment and
submitted that in the absence of an income in
presenti, there cannot be an award of future
prospects based on conjecture about a
student's prospective income. It must be
remarked here that students in the middle class
Indian society are looked upon with suspicion
about their future productivity, even if it be
almost certain from their current progression
that they would have a rewarding career. Also,
there is distinct concept in middle class Indian
society about being a 'mere student'. A student
is not a class by itself and a man could be
productive at any stage of his life. The new
world has opened up vistas of opportunity for
the youngsters to actually earn, while they
study,
doing
both
serious
work
and
entertainment business, equally rewarding.
Sadly, the pedantic outlook about being a
student and then a productive man at a certain
age of the human life with the certain and
dependable productivity being inferred for
Government servants alone paid out of the
State exchequer is a lingering legacy of a
colonial past and a different world. Keeping
aside the idea of a new world of opportunities
and the actually productive young men, who
earn while they study, because there is no
evidence about that in this case, we think that
the notional income of Rs. 15,000/- a year for
a student of Class XI, aged about 19 years, is a
very pessimistic assessment about the young
man's income-even notional.

17. In V. Mekala v. M. Malathi and
another, (2014) 11 SCC 178, which was a
case about a claim for compensation in an
injury case of a 16 years old girl, who was
a promising student of Class XI and left
70% permanently disabled by the accident,
it was held by their Lordships of the
Supreme Court, thus:

"17. Further, having regard to the
undisputed fact that there has been inflation
of money in the country since the
occurrence of the accident, the same has to
be taken into account by the Tribunal and
appellate
court
while
awarding
compensation to the appellant claimant as
per the principle laid down by this Court in
Govind Yadav [Govind Yadav v. New India
Insurance Co. Ltd., (2011) 10 SCC 683 :
(2012) 3 SCC (Civ) 1082 : (2012) 1 SCC
(Cri) 82 : (2012) 1 SCC (L&S) 422] which
has reiterated the position of Reshma
Kumari v. Madan Mohan [Reshma Kumari
v. Madan Mohan, (2009) 13 SCC 422 :
(2009) 5 SCC (Civ) 143 : (2010) 1 SCC
(Cri) 1044] , the relevant paragraph of
which reads as under: (Reshma Kumari
case [Reshma Kumari v. Madan Mohan,
(2009) 13 SCC 422 : (2009) 5 SCC (Civ)
143 : (2010) 1 SCC (Cri) 1044] , SCC pp.
440-41, para 46)

"46. In the Indian context several other
factors should be taken into consideration
including education of the dependants and
the nature of job. In the wake of changed
societal conditions and global scenario,
future prospects may have to be taken into
consideration not only having regard to the
status of the employee, his educational
qualification; his past performance but also
other relevant factors, namely, the higher
salaries and perks which are being offered
by the private companies these days. In fact
while determining the multiplicand this
Court in Oriental Insurance Co. Ltd. v.
Jashuben [(2008) 4 SCC 162 : (2008) 2
SCC (Cri) 752] held that even dearness
548 INDIAN LAW REPORTS ALLAHABAD SERIES
allowance and perks with regard thereto
from which the family would have derived
monthly benefit, must be taken into
consideration."

18. The fact that the appellant was a
brilliant student at the time of the accident
should also be taken into consideration
while awarding compensation to her.
Therefore, taking Rs 6000 as monthly
notional income by the Tribunal for the
purpose of awarding compensation under
this head is too meagre an amount. The
learned counsel appearing for Respondent 2
contended that the appellant can still finish
her education and find employment and
therefore, there is no necessity to enhance
the amount of compensation under the head
of "loss of income" and "future prospects".
It is pertinent to reiterate here that the
appellant claimant has undergone and is
still undergoing substantial pain and
suffering due to the accident which has
rendered both her legs dysfunctional. This
has reduced the scope of her future
prospects
including
her
marriage
substantially. Moreover, a tortfeasor is not
entitled to dictate the terms of the appellant
claimant's career as has been held by the
Karnataka High Court in K. Narasimha
Murthy v. Oriental Insurance Co. Ltd. [ILR
2004 KAR 2471] , the relevant paragraph
of which reads as under: (ILR pp. 2490-91,
para 41)

"41. ... Further, it needs to be
emphasised that it is not the right of the
tortfeasor or a person who has taken over
the liability of the tortfeasor in terms of and
under the Act to dictate that the injured
person should do some other work, manual
or otherwise, it does not matter, may be
with pain and discomfort, in order to
minimise his or its liability. Such insistence
is untenable in law and if such is the case, it
would violate basic human rights of the
injured person. In this case, the appellant is
reduced to such a state that he is unable to
do any work, manual or otherwise, without
subjecting himself to pain and suffering,
agony and discomfort. In an accident, if a
man is disabled for a work which he was
doing before the accident, that he has no
talents, skill, experience or training for
anything else and he is unable to find any
work, manual or clerical, such a man for all
practical purposes has lost all earning
capacity he possessed before and he is
required to be compensated on the basis of
total loss. In reaching this conclusion we
may derive support from the judgments in
Daniels v. Sir Robert McAlpine and Sons
Ltd. [(1971) 11 KIR 141] and Blair v. FJC
Lilley (Marine) Ltd. [1981 SLT 90]
Secondly, the physical incapacity to earn
income sustained by the appellant is not
temporary, but permanent and complete as
per Ext. P-43. Thirdly, it cannot be said that
since the appellant has sustained only 54%
permanent physical disability in respect of
the whole body as per PW 3, the court
should
take
into
account
functional
disability also at 54% only while assessing
the
loss
of
earning
capacity.
Such
hypothesis does not stand to reason nor can
it be accepted as valid in terms of law. An
injured person is compensated for the loss
which he incurs as a result of physical
injury and not for physical injury itself. In
other words, compensation is given only
for what is lost due to accident in terms of
an equivalent in money insofar as the
nature of money admits for the loss
sustained. In an accident, if a person loses a
limb or eye or sustains an injury, the court
while computing damages for the loss of
organs or physical injury, does not value a
limb or eye in isolation, but only values
totality of the harm which the loss has
entailed the loss of amenities of life and
infliction of pain and suffering: the loss of
7 All. Arun Kumar Dwivedi & Anr. Vs. Sri Bharat Bhushan Khanna & Anr.
549
the good things of life, joys of life and the
positive infliction of pain and distress."

19. Further, it has been held in
Reshma Kumari [Reshma Kumari v. Madan
Mohan, (2009) 13 SCC 422 : (2009) 5 SCC
(Civ) 143 : (2010) 1 SCC (Cri) 1044] that
certain relevant factors should be taken into
consideration
while
awarding
compensation under the head of future
prospect of income. The relevant paragraph
reads as under: (SCC pp. 431-32, para 27)

"27.
The
question
as
to
the
methodology required to be applied for
determination of compensation as regards
prospective
loss
of
future
earnings,
however, as far as possible should be based
on certain principles. A person may have a
bright future prospect; he might have
become eligible to promotion immediately;
there might have been chances of an
immediate pay revision, whereas in another
(sic situation) the nature of employment
was such that he might not have continued
in service; his chance of promotion, having
regard to the nature of employment may be
distant or remote. It is, therefore, difficult
for any court to lay down rigid tests which
should be applied in all situations. There
are divergent views. In some cases it has
been
suggested
that
some
sort
of
hypotheses
or
guesswork
may
be
inevitable. That may be so."

20. Therefore, in the light of the
principles laid down in the aforesaid case,
it would be just and proper for this Court,
and keeping in mind her past results we
take Rs 10,000 as her monthly notional
income for computation of just and
reasonable compensation under the head of
loss of income. Further, the High Court has
failed to take into consideration the future
prospects of income based on the principles
laid down by this Court in the catena of
cases referred to supra. Therefore, the
appellant is justified in seeking for reenhancement under this head as well and
we hold that the appellant claimant is
entitled to 50% increase under this head as
per the principle laid down by this Court in
Santosh Devi [Santosh Devi v. National
Insurance Co. Ltd., (2012) 6 SCC 421 :
(2012) 3 SCC (Civ) 726 : (2012) 3 SCC
(Cri) 160 : (2012) 2 SCC (L&S) 167] . The
relevant paragraph reads as under: (SCC
pp. 426-27, para 13)

"13. In Sarla Verma case [Sarla Verma
v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC
(Civ) 770 : (2009) 2 SCC (Cri) 1002] ,
another
two-Judge
Bench
considered
various factors relevant for determining the
compensation payable in cases involving
motor
accidents,
noticed
apparent
divergence in the views expressed by this
Court in different cases, referred to large
number
of
precedents
including
the
judgments in U.P. SRTC v. Trilok Chandra
[(1996) 4 SCC 362] , Nance v. British
Columbia Electric Railway Co. Ltd. [1951
AC 601 : (1951) 2 All ER 448 (PC)] ,
Davies v. Powell Duffryn Associated
Collieries Ltd. (No. 2) [1942 AC 601 :
(1942) 1 All ER 657 (HL)] and made an
attempt to limit the exercise of discretion
by the Tribunals and the High Courts in the
matter of award of compensation by laying
down a straitjacket formula under different
headings, some of which are enumerated
below: (Sarla Verma case [Sarla Verma v.
DTC, (2009) 6 SCC 121 : (2009) 2 SCC
(Civ) 770 : (2009) 2 SCC (Cri) 1002] ,
SCC pp. 133-34, para 24)

'Question (i)-Addition to income for
future prospects

***

24. In Susamma Thomas [Kerala
SRTC v. Susamma Thomas, (1994) 2 SCC
176 : 1994 SCC (Cri) 335] this Court
increased the income by nearly 100%, in
Sarla Dixit [Sarla Dixit v. Balwant Yadav,
(1996) 3 SCC 179] the income was
550 INDIAN LAW REPORTS ALLAHABAD SERIES
increased only by 50% and in Abati
Bezbaruah [Abati Bezbaruah v. Geological
Survey of India, (2003) 3 SCC 148 : 2003
SCC (Cri) 746] the income was increased
by
a
mere
7%.
In
view
of
the
imponderables and uncertainties, we are in
favour of adopting as a rule of thumb, an
addition of 50% of actual salary to the
actual salary income of the deceased
towards
future
prospects,
where
the
deceased had a permanent job and was
below 40 years. (Where the annual income
is in the taxable range, the words "actual
salary" should be read as "actual salary less
tax".) The addition should be only 30% if
the age of the deceased was 40 to 50 years.
There should be no addition, where the age
of the deceased is more than 50 years.
Though the evidence may indicate a
different percentage of increase, it is
necessary to standardise the addition to
avoid different yardsticks being applied or
different methods of calculation being
adopted. Where the deceased was selfemployed or was on a fixed salary (without
provision for annual increments, etc.), the
courts will usually take only the actual
income at the time of death. A departure
therefrom should be made only in rare and
exceptional
cases
involving
special
circumstances.'"

Therefore, taking both the aspects into
account, the total amount of compensation
under this head is calculated as Rs
22,68,000 [(Rs 10,000 × 70/100 + Rs
10,000 × 70/100 × 50/100) × 12 × 18]"

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 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
7 All. Arun Kumar Dwivedi & Anr. Vs. Sri Bharat Bhushan Khanna & Anr.
551
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
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,
552 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

23. The monthly income of the
deceased being Rs.5000/-, the annual
income would work out to a figure of
Rs.60,000/-. The deceased was bachelor
and the claimants are his parents. Going by
the principle with regard to deductions for
personal and living expenses relating to
bachelors laid down in Sarla Verma (Smt)
v. Delhi Transport Corporation and
another, (2009) 6 SCC 121, a 50%
deduction is to be made from the deceased's
income. The deceased was aged 19 years
and going by the Table in Paragraph No.40
of the report in Sarla Verma (supra), the
applicable multiplier would be that set out
for the age bracket of 15-20 years. It is '18'.

24. The Tribunal has directed a
deduction of one-third towards personal
and living expenses and adopted a
multiplier of '15', going by the age of the
parents, that was 44 years for the father and
43 for the mother. The settled principles in
Sarla Verma and subsequent authorities
would indicate that the Tribunal was in
error on both counts. The appropriate
deduction to be made towards personal and
living expenses, has already been indicated
and so also the multiplier, which has to be
'18'; not '15'.

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
7 All. Arun Kumar Dwivedi & Anr. Vs. Sri Bharat Bhushan Khanna & Anr.
553
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. As
observed by this court in the case of Pranay
Sethi (Supra), the determination of income
while computing compensation has to
include future prospects so that the method
will come within the ambit and sweep of
just compensation as postulated under
Section 168 of the Motor Vehicles Act. In
case of a deceased who had held a
permanent job with inbuilt grant of annual
increment and/or in case of a deceased who
was on a fixed salary and/or self employed
would only get the benefit of future
prospects and the legal representatives of
the deceased who was not serving at the
relevant time as he died at a young age and
was studying, could not be entitled to the
benefit of the future prospects for the
purpose of computation of compensation
would be inapposite. Because the price rise
does affect them also and there is always an
incessant effort to enhance one's income for
sustenance. It is not expected that the
deceased who was not serving at all, his
income is likely to remain static and his
income
would
remain
stagnant.
As
observed in Pranay Sethi (Supra) to have
the perception that he is likely to remain
static and his income to remain stagnant is
contrary to the fundamental concept of
human attitude which always intends to
live with dynamism and move and change
with the time. Therefore we are of the
opinion that even in case of a deceased who
was not serving at the time of death and
had no income at the time of death, their
legal heirs shall also be entitled to future
prospects by adding future rise in income
as held by this court in the case of Pranay
Sethi (supra) i.e. addition of 40% of the
income
determined
on
guesswork
considering the educational qualification,
family background etc., where the deceased
was below the age of 40 years."

 (emphasis by Court)

26. Given the principle that future
prospects are to be added to the deceased's
income even in a case where it is notional
on account of the deceased being a nonearning member at the time of his demise.
The
question
that
still
falls
for
consideration is if in the State of Uttar
Pradesh, the future prospects ought to be
governed by the principle in Pranay Sethi
or Rule 220-A(3) of the U.P. Motor
554 INDIAN LAW REPORTS ALLAHABAD SERIES
Vehicles Rules, 1998 (for short the 'Rules
of 1998'). The issue was answered by the
Supreme Court in the context of future
prospects, generally to be awarded in the
State of Uttar Pradesh, in New India
Assurance Co. Ltd v. Urmila Shukla and
others, 2021 SCC OnLine SC 822, where
it has been held:

"9. It is to be noted that the validity of
the Rules was not, in any way, questioned
in the instant matter and thus the only
question that we are called upon to consider
is whether in its application, sub-Rule 3(iii)
of Rule 220A of the Rules must be given
restricted scope or it must be allowed to
operate fully.

10. The discussion on the point in
Pranay Sethi was from the standpoint of
arriving at "just compensation" in terms of
Section 168 of the Motor Vehicles Act,
1988.
11. If an indicia is made available in the
form of a statutory instrument which
affords a favourable treatment, the decision
in Pranay Sethi cannot be taken to have
limited the operation of such statutory
provision specially when the validity of the
Rules was not put under any challenge. The
prescription of 15% in cases where the
deceased was in the age bracket of 50-60
years as stated in Pranay Sethicannot be
taken as maxima. In the absence of any
governing
principle
available
in
the
statutory regime, it was only in the form of
an indication. If a statutory instrument has
devised a formula which affords better or
greater benefit, such statutory instrument
must be allowed to operate unless the
statutory instrument is otherwise found to
be invalid.

12.
We,
therefore,
reject
the
submission advanced on behalf of the
appellant and affirm the view taken by the
Tribunal as well as the High Court and
dismiss this appeal without any order as to
costs."

27.