# Arvind Agrawal & Anr v. Tanveer Ahmad & Ors

- **Citation:** (2023) 7 ILRA 642
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-11
- **Case number:** First Appeal From Order No. 2599 of 2011
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-agrawal-anr-v-tanveer-ahmad-ors-50571
- **Pages:** 15

## Headnote

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation-deceased was a son of the
claimants/parents-
He
was
the
sole
breadwinner and he was aged 23 years and
earned a B.Tech (Communications) degreeAnnual
income
of
the
deceased
is
considered to be Rs. 72,000/- 50%
added towards future prospects as per
Rules 220-A(3) of 1998-Hence , total
compensation granted Rs. 14,06,000/-
@ 7%.(Para 1 to 35)

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 33)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,930 of 49,306. This is a partial read: ask again with offset=39930 for what follows._

642 INDIAN LAW REPORTS ALLAHABAD SERIES
Manager and Another, 2017 (1) TAC 259
(SC) also it has been held that under
Section 30, the High Court cannot enter
into the arena of facts unless they are
proved to be perverse.

9. In view of the above, the appeal
fails and is dismissed. The so called
questions of law framed by the Insurance
Company are answered against it. In fact
the substantial questions of law raised are
the questions of fact.

10. Interim relief, if any, shall stand
vacated
forthwith.
The
amount
be
disbursed to the claimant forthwith.
----------
(2023) 7 ILRA 642
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2023

BEFORE

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

First Appeal From Order No. 2599 of 2011

Arvind Agrawal & Anr. ...Appellants
Versus
Tanveer Ahmad & Ors. ...Respondents

Counsel for the Appellants:
Sri Vivek Kumar Singh

Counsel for the Respondents:
Sri Baleshwar Chaturvedi, Sri S.K. Mehrotra

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation-deceased was a son of the
claimants/parents-
He
was
the
sole
breadwinner and he was aged 23 years and
earned a B.Tech (Communications) degreeAnnual
income
of
the
deceased
is
considered to be Rs. 72,000/- 50%
added towards future prospects as per
Rules 220-A(3) of 1998-Hence , total
compensation granted Rs. 14,06,000/-
@ 7%.(Para 1 to 35)

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 33)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Gyan Chand Jain & ors. Vs Permanand & ors.
(2003) 1 TAC 490
2. Sarla Verma(Smt.) & ors. Vs DTC (2009) 6
SCC 121

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

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

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

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

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

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

9. Shashikala & ors. Vs Ganga-lakshmamma &
anr.. (2015) 9 SCC 150
(Delivered by Hon'ble J.J. Munir, J.)

This is a claimant's appeal under
Section 173 of the Motor Vehicles Act,
7 All. Arvind Agrawal & Anr. Vs. Tanveer Ahmad & Ors.
643
1988
seeking
enhancement
of
compensation awarded by the Tribunal.

2. The two claimant-appellants,
Arvind Agrawal and Smt. Renu Agrawal,
are the parents of the late Anshul Agrawal,
the victim of a fatal motor accident, that
happened on 31.05.2008. According to the
facts set out in the claim petition, the
deceased, Anshul Agrawal, was proceeding
on board a Maruti car bearing Registration
No. UP 14 T 0150 on 31.05.2008 at about
10 o'clock in the evening hours, along with
his workmen, one Dhananjay and another
Sonu. He was proceeding from Rampur
bound homewards. He lived at Premises
No.
6/165,
Rajnagar,
Police
Station
Kavinagar, District Ghaziabad, and this
was his destination on the fateful journey.
When Anshul reached a place in front of
the gate at Village Shahbazpur, a truck
bearing Registration No. UP 25 T5201,
driven at a high speed and negligently,
approached from the opposite direction.
The truck collided with Anshul's car headon. The impact led Anshul, Dhananjay and
Sonu to sustain injuries. During medical aid
at the Government Hospital, Gajraula,
Anshul and Dhananjay lost their battle for
life.

3. Arvind Agrawal lodged a first
information report1 at Police Station
Gajraula regarding the incident. Arvind
Agrawal is arrayed as claimant no. 1 in the
claim petition and appellant no. 1 in this
appeal. Both the claimant-appellants shall
hereinafter be collectively referred to as
'the claimants' except where the context
requires an individual or a different
reference. It is the claimants' case that on
account of the sudden demise of their lone
and adult son, Arvind Agrawal was much
troubled psychologically. Therefore, on
account of an inadvertent error, he
mentioned the number of the offending
truck as UP 25T 2501 instead of UP 25 T
5201
in
the
FIR.
However,
during
investigation, Arvind Agrawal took care to
amend his mistake by informing the
Investigating Officer2. The IO, after
verifying facts and collecting material,
charge-sheeted the driver of the offending
truck in the crime arising from the accident.
It is the claimants' case that the deceased
would provide for the claimants, earning
his livelihood from business that he did.
The deceased was the claimants' lone son.
He was the sole breadwinner and provided
resources for their sustenance. It was the
deceased's income that would enable the
family to make ends meet. The deceased
was aged 23 years and a healthy man. He
had pursued higher technical education and
earned a B.Tech (Communications) degree.
He was an engineer by training. He was
into the business of aluminium fabrication
and glass fitting, wherein he was trading
with profit. He would earn a sum of
₹10,281/- per month and had a shop at 68,
Punjab Expeller Compound, Meerut Road,
Ghaziabad. The claimants, on account of
their son's demise, have been left without
support. They have suffered irreparable
loss and mental pain. The family, after
Anshul's
demise,
have
plunged
into
financial crisis. The deceased committed no
fault or negligence that contributed to the
accident. If the driver of the offending
vehicle had not driven it at a high speed
and negligently, the claimants' son would
not have suffered an untimely demise.
Therefore, opposite parties nos. 1, 2 and 3
to the claim petition, who are the owner,
the driver and the insurers of the offending
truck, respectively, are entirely liable for
the untimely death of the claimants' son. It
is also pleaded on behalf of the claimants
that the deceased's ancestors have lived up
to the age of 70-75 years. He would have at
644 INDIAN LAW REPORTS ALLAHABAD SERIES
least lived to see his 75th birthday. He
would have been gainfully employed for a
minimum of 40 years and supported the
family. The deceased was unmarried.

4. Opposite party no. 2 to the claim
petition, Saleem Hussain, is respondent no.
2 to the appeal. He is the driver of the
offending truck. He shall hereinafter be
called 'the driver'. Tanveer Ahmad is the
owner of the offending truck. He is
opposite party no. 1 to the claim petition
and respondent no. 1 to this appeal. He
shall hereinafter be called 'the owner'. The
Bajaj Alliance General Insurance Company
Limited are the insurers of the offending
truck. They are arrayed as opposite party
no. 3 to the claim petition and respondent
no. 3 to this appeal. The said insurance
company shall, for the sake of convenience,
be called as 'the insurers'.

5. The claimants say that the driver
was driving the offending truck on the
owner's
instructions.
The
owner
is,
therefore, liable. The offending truck was
insured with the insurers vide Cover Note
No. BZ0800234677. Therefore, the owner,
the driver and the insurers are jointly and
severally
liable
to
make
good
the
compensation demanded by the claimants.
A total sum of ₹30,20,000/- was asked to
be paid in compensation by the claimants,
who petitioned the Tribunal.

6. The owner and the driver filed a joint
written statement and generally denied the
claimants' case. It was averred that it was not
the driver's fault that led to the accident. The
driver of the offending vehicle was operating
it with due care and caution, and in
accordance with the rules. He held a valid
and effective driving license. On the date and
time of the accident, the offending truck was
insured with the insurers. It was also pleaded
that
the
claimants
have
demanded
compensation arbitrarily. If at all the
offending truck be held responsible for the
accident, the liability has to be borne by the
insurers.

7. The insurers filed a separate written
statement, generally denying, like the driver
and the owner, the claimants' case. It was
pleaded that the deceased was driving his car
negligently and wantonly, on account of
which, the accident happened. There was no
fault on the driver's part. The claimants are
not entitled to compensation. They have
demanded
an
exaggerated
figure
in
compensation, to which they are not entitled.
It was also averred that at the time of the
accident, the driver did not hold a valid
driving license. The insurers have pleaded
that the claim petition ought to be rejected.

8. On the pleadings of parties, the
Tribunal, on 15.02.2010, struck the following
issues (translated into English from Hindi) :

(i) Whether on 31.05.2008 at 10
o'clock in the night, when the deceased
Anshul
Agrawal
was
proceeding
to
Ghaziabad
from
Rampur,
along
with
Dhananjay and Sonu in Maruti Car No. UP
14 T 0150, in front of Shahbazpur Door, on
the Gajraula Brajghat Road, within the local
limits of Police Station Gajraula, District J.P.
Nagar, Truck No. UP 25 T 5201, driven at a
high speed and negligently by its driver,
collied with Car No. UP 14 T 0150, on
account of which, the claimants' son, Anshul
Agrawal sustained grievous injuries and died
during treatment at the Government Hospital,
Gajraula ?

(ii) Whether the accident in
question happened on account of the
negligence of the deceased/driver of
Vehicle No. UP 14 T 0150 ?
7 All. Arvind Agrawal & Anr. Vs. Tanveer Ahmad & Ors.
645

(iii) Whether at the time of the
accident, the deceased did not hold a valid
and effective driving license ?

(iv) Whether the claim petition is
bad for non-joinder of the owner and the
insurers of Maruti Car No. UP 14 T 0150 ?

(v) Whether at the time of the
accident, the driver of Truck No. UP 25 T
5201 did not hold an effective and valid
driving license ?

(vi) Whether the claimants are
entitled to compensation on account of
Anshul Agrawal's death? If yes, how much
and from whom ?

9. On behalf of the claimants, Arvind
Agrawal, examined himself as P.W.1 and
Sonu Sharma, as P.W.2. The claimants, in
their documentary evidence through a list
bearing Paper No. 6ग produced photostat
copies of five documents, and through a list
bearing Paper No. 30ग, certified copies of
12 documents. On the other side, the truck
driver, Saleem Hussain, was examined as
D.W.1 and the owner and the driver filed,
along with their joint written statement,
photostat copies of three documents. The
documents as well as the parol evidence
shall be discussed, so far relevant, during
the course of this judgment.

10. Issues Nos. 1 and 2 were dealt
with by the Tribunal together. The Tribunal
held in favour of claimants on Issue No. 1,
but opined that the drivers of both vehicles
had a contributory negligence to the extent
of 50%. Issue No. 3 was decided, holding
that on the date of the accident, the
deceased held a valid driving license. Issue
No. 4 was decided again in favour of the
claimants, holding that compensation, as
determined, is payable by the owner and
the insurers of the offending truck. The car
driver is dead. One of the claimants is the
car
driver's
father
and
his
legal
representative as well. It was held that there
was no defect in the petition on account of
the car driver and the insurers of the car not
being made parties. Issue No. 5 was
decided, again, in favour of the claimants,
so to speak, holding that the driver of the
truck held a valid and effective driving
license on the date of the accident. In
determining Issue No. 6, the Tribunal
looked into the deceased's income tax
returns and balance-sheet for the Financial
Year 2005-06 and Assessment Year 200607, and likewise, for the Financial Year
2006-07 and Assessment Year 2007-08.
The Tribunal was not much convinced
about the monthly income of the deceased
and all that was left with him, after taking
into account the outgoings and expenditure.
The Tribunal also took into consideration
the
deceased's
high
technical
qualifications. The circumstances of his
business and life were also considered to
reach a conclusion that the deceased had a
monthly income of ₹8,000/-, corresponding
to an annual income of ₹96,000/-. The
deceased, being a bachelor, 50% was
deducted towards personal and living
expenses by the Tribunal. In order to
choose the multiplier applicable, the
Tribunal has considered the age of claimant
no. 1, Arvind Agrawal and adopted a
multiplier of '11'. Therefore, a total
dependency of ₹5,28,000/- was determined
by the Tribunal. A sum of ₹2,000/- was
awarded towards funeral expenses.

11.

Looking
to
the
special
circumstances that the claimants had lost
their only son, relying on a decision of
Uttarakhand High Court in Jamuna Prasad
and another v. Baljeet Singh and
others3, the Tribunal awarded separately a
646 INDIAN LAW REPORTS ALLAHABAD SERIES
sum of ₹25,000/-, but under what head, is
not clear. In addition, on account of pain
and suffering for the loss of their only son,
the claimants were awarded a sum of
₹10,000/- and further, a sum of ₹10,000/-
for the loss of consortium and services. In
the aforesaid manner, a total compensation
of ₹5,75,000/- was worked out by the
Tribunal.
Since
50%
contributory
negligence
was
adjudged,
the
total
compensation was halved to determine the
compensation payable, leading to a sum of
₹2,87,500/-.
This
compensation
was
ordered to be paid by the owner, the driver
and the insurers jointly and severally to the
claimants along with interest at the rate of
6% per annum from the date of the claim
petition until realisation. The insurers were
ordered to deposit the sum awarded within
a month of the award with the Tribunal.
The Tribunal further directed that out of the
sum of compensation payable to the
claimants, both would be entitled to receive
a one half each.

12. Heard Mr. Vivek Kumar Singh,
learned Counsel for the claimants and Mr.
S.K. Mehrotra, learned Counsel appearing
for the Insurers.

13. It is argued by Mr. Vivek Kumar
Singh that there is no case of contributory
negligence, as the evidence shows that the
offending truck was entirely responsible for
the accident. It is also argued that the truck
being the heavier vehicle, the inference of the
Tribunal to apportion contributory negligence
equally on ground that it is a head-on
collision, is erroneous. It is next submitted
that the Tribunal erred in not awarding
anything towards future prospects and
incorrectly applying the multiplier. It is also
argued that the Tribunal has committed error
in not awarding adequately under the
conventional heads on account of the loss of
consortium, funeral expenses and the loss of
estate.

14. On the other hand, it is argued by
Mr. S.K. Mehrotra, learned Counsel for the
insurers that the Tribunal has passed a just
award. He submits that the Tribunal's award
should neither be a pittance nor a bonanza.
Mr. Mehrotra has further argued that the
finding regarding contributory negligence is
unassailable and has referred to the site-plan,
besides the other evidence, to say that the
Tribunal has rightly determined the issue.

15. Upon hearing learned Counsel for
parties, this Court finds that so far as this
appeal is concerned, there are only two points
that arise for consideration, to wit, whether
the Tribunal was right in finding contributory
negligence and apportioning it at 50%
between the deceased and the offending
driver; and the other is, if the compensation
awarded is adequate. So far as the evidence
of P.W.2, who is the surviving passenger on
board the ill-fated car is concerned, all that he
has said in his affidavit filed in lieu of his
examination-in-chief in Paragraphs Nos. 4
and 5 is this:

"4. मैं शपथपूवटक कथन करता ह ू जक िब हमारी गाडी
गिरौला से बृिघाट की तरफ शाहबािपुर गेट के सामने पह ंची तो सामने
से ट्रक संख्या - यू.पी.-25टी-5201 के चालक ने बडी तेिी व
लापरवाही से ट्रक को चलाते ह ए, गलत साईड में आकर हमारी मारुजत
कार में सामने से टक्कर मार दी।

5. मैं शपथपूवटक कथन करता ह ाँ जक हमारी गाडी को
मेरा माजलक अंशुल अग्रवाल बडी साविानी व यातायात के जनयमों का
पालन करते ह ए चला रहा था जकन्तु ट्रक चालक ने तेिी व लापरवाही
से ट्रक चला कर हमारी गाडी में टक्कर मारी जिससे इस दुघटना में आयी
चोटो के कारण अंशुल अग्रवाल व िंनिय की मृत्यु हो गयी तथा मै भी
घायल हो गया था ।"

16. This witness, in his crossexamination about the accident, has said :
7 All. Arvind Agrawal & Anr. Vs. Tanveer Ahmad & Ors.
647

"हम लोग उस जदन रामपुर से शाम साढे सात आठ
बिे चले थे। मैं घटना स्थल से रामपुर की दूरी नहीं बता सकता।
घटना स्थल पर डावर की सड़क लगभग 20 जफट चौडी है उसके
बीच जडवाइडर नहीं है। सड़क पर ट्रैजफक लाईट नहीं है। सड़क के
जकनारे गांव है जिसकी रोशनी सड़क पर लगी ह ई थी। घटना ट्रक से
ह ई है जिसका नम्बर मैं बता सकता ह ं। घटना वाला ट्रक सामने से
आ रहा था। घटना के समय सड़क पर काफी वाहन आ रहे थे। कार
व ट्रक की आमने सामने मुंह से टक्कर ह ई है। कार में घटना के समय
चालक के अलावा एक आदमी आगे बैठा था। मैं पीछे बैठा था।
कार घटना के समय िाली थी थोड़े से औिार थे िो जडग्गी में रिे
थे। ट्रक लगभग 10-20 गि की दूरी से जदिाई दे रहा था जिसकी
रोशनी जदिाई दे रही थी। मुझे मामूली चोटे आई थी। अंशुल
अग्रवाल को चोटे आई थी। जिनकी इस घटना में मृत्यु हो गयी है।
...

....यह कहना गलत है जक अंशुल अग्रवाल तेिी से
गाड़ी चला रहे थे इस कारण घटना घटी हो। ..."

17. This witness, who has testified as
P.W.2, is a very reliable witness of the
accident. His presence cannot be doubted
because he was on board the ill-fated car
and received minor injuries too in the
accident. The said version of his has
remained unchallenged by the insurers in
the cross-examination. The witness is, in no
way, partisan or related to the claimants.
He was an employee of the deceased, and
after him, took up employment with his
uncle. He is, thus, no longer in contact with
the deceased's family. There is no reason
for him to say the slightest of falsehood
about the negligence of the two drivers
involved in the accident. A perusal of the
testimony of witness and his crossexamination clearly shows that the witness
has said that the truck driver was driving it
at a high speed and negligently. He has,
particularly, said that the truck driver
moved to the wrong side of the road and hit
the ill-fated car head-on. It is further said in
the examination-in-chief that the deceased
was carefully driving the car following the
traffic rules, but the truck driver driving
negligently and at a high speed, caused the
accident. In the cross-examination of this
witness at the instance of the insurers, there
is nothing elicited, which may cast doubt
about the witnesses' judgment of the
negligence involved in the accident. It is
said
by
the
witness
in
his
crossexamination that he was sitting on the
backseat of the car when the accident
happened. He could see the truck at a
distance of 10-20 yards. He has specifically
refuted the suggestion by the learned
Counsel for the insurers that the accident
happened on account of the deceased
driving the ill-fated car at a high speed.

18. In substance, therefore, whatever
the witness has said in his examination-inchief remained the unshaken version of the
eye-witness, who saw it all happen at close
quarters. The version there is clear that the
truck was driven negligently and moved to
the wrong side of the road to collide headon with with the ill-fated car.

19. On behalf of the insurers, the
driver of the offending truck, Saleem
Hussain, has been examined as D.W.1. In
his examination-in-chief in the dock, he has
stated :

"... मैं उस समय यू०पी० 25 टी० 5201 का
ड्राइवर था जदनांक 31.5.08 को मैं ट्रक UP 25 T 5201 को
लेकर गाजियाबाद से बािपुर िा रहा था। िैसे ही मैं शाहबादपुर गेट
के पास पह ंचा तो सामने की ओर से एक कार को उसका ड्राइवर
बह त तेिी व लापरवाही से चलाता ह आ लाया और मेरे ट्रक में
टक्कर मार दी। इस दुघटना में मेरी कोई गलती नहीं थी। समस्त
गलती कार चालक की थी। ...

... इस घटना के संबंि में जलिवाये गये अपराि
संख्या 923/08 थाना गिरौला में मेरी िमानत ह ई थी। इस मुकदमें
में गाडी की भी िमानत ह ई थी। यह कहना सही है जक इस मुकदमें में
पुजलस द्वारा मुझे दोषी मानते ह ए आरोप पत्र न्यायालय में दाजिल
कर जदया हो। ...
648 INDIAN LAW REPORTS ALLAHABAD SERIES

... यह कहना गलत है जक रात में नींद के कारण
गलत जदशा में आकर तेिी व लापरवाही से चलाते ह ए कार में
टक्कर मार दी हो। यह कहना गलत है जक उि एक्सीडेन्ट में मेरी
गलती हो। ... "

20. This witness was examined on
behalf of the owner as D.W.1. A perusal of
the testimony of this witness shows that he
has refuted his negligence or even his
contribution to the causing of the accident.
The witness has acknowledged the fact that
the Police have charge-sheeted him in the
crime. The charge-sheeting by the Police is
not decisive on the issue of negligence, but
is certainly a piece of evidence to be
considered. It does show that the Police
doing their investigation also thought that it
was the driver's negligence that led to the
accident.

21. There is another important feature
about the testimony of P.W.2. It is not just
that, that as the driver of the offending
truck, any stand of his which revealed or
was a pointer to his negligence, would
bring his conduct or ability as a driver into
question,
but
also
place
him
disadvantageously in the criminal trial he is
facing on the charge of causing death by
negligence. Assuming that the testimony in
the motor accident claim would not be read
in evidence in the criminal trial, the driver,
who is a layman, can reasonably be
expected to think that it would. He could
think that it would lead to his conviction in
the criminal case. This witness is, therefore,
by no means, an independent witness of the
kind that P.W.2 Sonu is, as the surviving
victim of the accident. The fear of
blameworthy conduct or conviction in the
criminal case, would keep the witness
D.W.1, inhibited from speaking the truth.

22. To the understanding of this
Court, the testimony of this witness about
the
question
of
negligence
or
the
deceased's contribution to it is not
dependable, particularly, when compared to
that
of
P.W.2,
who
is
absolutely
independent
and
unconcerned.
The
Tribunal, while noticing the testimony of
both these witnesses in order to evaluate it,
has not at all assessed it either by the credit
of the witnesses or the worth of their
testimonies, judged on a comparative basis.
The Tribunal has simplistically set forth the
salient features of the testimony of both the
witnesses and contented itself with doing
that. This Court thinks that the testimony of
P.W.2 and D.W.1, when taken into
consideration decisively, shows that P.W.2
is more reliable about an accurate and firsthand account. This Court is also of opinion
that the account of the accident given out
by P.W.2 clearly establishes the driver's
negligence. It excludes any contribution by
the deceased. To add to it, by way of
support is the fact that the Police have also
thought that the truck driver was guilty of
offences punishable under Sections 279,
338, 427 and 304A of the Penal Code, all
of which would point to the driver's
negligence. This Court makes it clear that
we do not rely on the conclusions drawn by
the Police, but merely look to it for the
slight support of whatever worth it is in aid
of our conclusions based on the evidence
before us. The Court has also looked into
the site-plan, which the Tribunal has relied
on
to
found
its
conclusions
about
contributory negligence. Contrary to the
Tribunal's understanding of the site-plan,
what this Court finds is that the truck did
move to the right and hit the car, that was
not moving in the centre of the road. The
car was moving according to the rule of the
road, may not be on the last inch of the lefthand side. In fact, a perusal of the
Tribunal's finding on the issue makes it
pellucid that the learned Judge also thought
about the site-plan the same way as this
7 All. Arvind Agrawal & Anr. Vs. Tanveer Ahmad & Ors.
649
Court. The only error that seems to have
arisen is on account of the Tribunal
straining the standards of care for the driver
of the ill-fated vehicle to find a case of
contributory negligence. This would be
evident from the Tribunal's finding on the
issue, the relevant part of which reads :

"नक्शा निरी की प्रमाजणत प्रजतजलजप कागि सं0
32 ग / 2 के अवलोकन से पाया िाता है जक कजथत दुघटना
सडक पर आमने सामने से ह ई है। ट्क सडक पर लगभग बीच में
चल रहा था तथा कार सामने से सडक के बीच से थोडा बांये थी।
यदि कार चालक सावधानी बरतता और यदि ट्रक चालक
लापरवाही से ट्क ला रहा था, तो कार बाये लाकर िुर्घटना से
बचा जा सकता था। अत: कजथत दुघटना में कार चालक की भी
गलती स्पष्ट होती है ।"

(emphasis by Court)

23. It will be noticed that in the
finding recorded by the Tribunal, it has
been said that the site-plan showed that the
truck was moving almost in the centre of
the road, whereas the car was moving
slightly to the left-hand side. About this
finding, the Tribunal is absolutely right in
our opinion, but then it has remarked that if
the driver of the ill-fated vehicle had
observed caution, seeing the truck driver
driving negligently, he could have moved
the car farther to the left and averted the
accident. That advice may have been good
for the deceased to enable him see another
day, and, of course, a long life, but it
cannot set the standards for negligence and
its apportionment between the two drivers.

24. In the opinion of this Court,
therefore, the finding of the Tribunal, that
the deceased was guilty of contributory
negligence, is absolutely misplaced. It is,
accordingly, held that it is the driver alone,
who was responsible for the accident, with
no contribution on the deceased's part.

25. This takes this Court to the next
issue and that is the assessment of
compensation, which the claimants are
entitled to. This Court has already noticed
the way the Tribunal has taken into
consideration the deceased's income tax
returns, his revenue expenditure, the kind
of
business
that
he
was
into,
his
establishment
and
above
all,
his
qualifications to find that the deceased's
monthly income was ₹8,000/- per month.
There is no reason for this Court to
disagree with that assessment of the
Tribunal about the deceased's monthly
income.

26. Based on the deceased's monthly
income, his annual income would be a sum
of ₹96,000/-. Since the deceased was
bachelor, going by the law laid down in
Paragraph No. 30 of the report in Sarla
Verma (Smt.) and others vs. Delhi
Transport Corporation and another,
(2009) 6 SCC 121, a deduction of 50%
towards the deceased's personal and living
expenditure has been made, which this
Court thinks is correct. The Tribunal has
applied the multiplier of '11', reckoning it
by the father's age. That is a patently
fallacious standard to assess the applicable
multiplier. According to the table in
Paragraph No. 40 of the report in Sarla
Verma (supra) the deceased being in the
age group of 21-25, the applicable
multiplier would be 18; not 11. It is
accordingly held.

27. This Court further notices that the
Tribunal has not awarded anything towards
future prospects. It is no longer in the realm
of doubt that future prospects are as much
available in the case of the self-employed
or those working on a fixed salary as those
employed in government establishment or
other establishments on salaries hitherto
650 INDIAN LAW REPORTS ALLAHABAD SERIES
regarded as the sole index of a dependable
income. Now that perspective of the law
has completely changed, in view of the
holding of the Constitution Bench of the
Supreme Court in National Insurance
Company v. Pranay Sethi and others,
(2017) 16 SCC 680. In Pranay Sethi
(supra) it has been held :

56. The seminal issue is the
fixation of future prospects in cases of
deceased who are self-employed or on a
fixed salary. Sarla Verma [Sarla Verma v.
DTC, (2009) 6 SCC 121 : (2009) 2 SCC
(Civ) 770 : (2009) 2 SCC (Cri) 1002] has
carved out an exception permitting the
claimants to bring materials on record to
get the benefit of addition of future
prospects. It has not, per se, allowed any
future prospects in respect of the said
category.

57. Having bestowed our anxious
consideration, we are disposed to think
when
we
accept
the
principle
of
standardisation, there is really no rationale
not to apply the said principle to the selfemployed or a person who is on a fixed
salary. To follow the doctrine of actual
income at the time of death and not to add
any amount with regard to future prospects
to
the
income
for
the purpose
of
determination of multiplicand would be
unjust. 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 Act. In case of a deceased who
had held a permanent job with inbuilt grant
of annual increment, there is an acceptable
certainty. But to state that the legal
representatives of a deceased who was on a
fixed salary would not be entitled to the
benefit of future prospects for the purpose
of computation of compensation would be
inapposite. It is because the criterion of
distinction between the two in that event
would be certainty on the one hand and
staticness on the other. One may perceive
that the comparative measure is certainty
on the one hand and uncertainty on the
other but such a perception is fallacious. It
is because the price rise does affect a selfemployed person; and that apart there is
always an incessant effort to enhance one's
income for sustenance. The purchasing
capacity of a salaried person on permanent
job when increases because of grant of
increments and pay revision or for some
other change in service conditions, there is
always a competing attitude in the private
sector to enhance the salary to get better
efficiency from the employees. Similarly, a
person who is self-employed is bound to
garner
his
resources
and
raise
his
charges/fees so that he can live with same
facilities. 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. Though it may seem appropriate that
there cannot be certainty in addition of
future prospects to the existing income
unlike in the case of a person having a
permanent job, yet the said perception does
not really deserve acceptance. We are
inclined to think that there can be some
degree of difference as regards the
percentage that is meant for or applied to in
respect of the legal representatives who
claim on behalf of the deceased who had a
permanent job than a person who is selfemployed or on a fixed salary. But not to
apply the principle of standardisation on
the foundation of perceived lack of
certainty would tantamount to remaining
oblivious to the marrows of ground reality.
7 All. Arvind Agrawal & Anr. Vs. Tanveer Ahmad & Ors.
651
And, therefore, degree-test is imperative.
Unless the degree-test is applied and left to
the parties to adduce evidence to establish,
it would be unfair and inequitable. The
degree-test has to have the inbuilt concept
of percentage. Taking into consideration
the cumulative factors, namely, passage of
time, the changing society, escalation of
price, the change in price index, the human
attitude to follow a particular pattern of
life, etc., an addition of 40% of the
established income of the deceased towards
future prospects and where the deceased
was below 40 years an addition of 25%
where the deceased was between the age of
40 to 50 years would be reasonable.

58. The controversy does not end
here. The question still remains whether there
should be no addition where the age of the
deceased is more than 50 years. Sarla Verma
[Sarla Verma v. DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri)
1002] thinks it appropriate not to add any
amount and the same has been approved
inReshma Kumari [Reshma Kumari v.
Madan Mohan, (2013) 9 SCC 65 : (2013) 4
SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] .
Judicial notice can be taken of the fact that
salary does not remain the same. When a
person is in a permanent job, there is always
an enhancement due to one reason or the
other. To lay down as a thumb rule that there
will be no addition after 50 years will be an
unacceptable concept. We are disposed to
think, there should be an addition of 15% if
the deceased is between the age of 50 to 60
years and there should be no addition
thereafter. Similarly, in case of self-employed
or person on fixed salary, the addition should
be 10% between the age of 50 to 60 years.
The aforesaid yardstick has been fixed so that
there can be consistency in the approach by
the tribunals and the courts.

28. The other issue that still requires
consideration is whether future prospects,
to which the claimants are entitled, would
be governed by the principle in Pranay
Sethi or Rule 220-A(3) of the Uttar
Pradesh Motor Vehicle Rules, 19984. The
issue was settled by the Supreme Court 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, subRule 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
inPranay Sethiwas 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
inPranay Sethicannot 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
inPranay 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.
652 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

29. There is, therefore, no doubt that
in the State of Uttar Pradesh, future
prospects
have
to
be
calculated
in
accordance with Rule 220-A (3) of the
Rules, 1998 and not the principles in
Pranay Sethi.

30. It was, at some time, a matter of
doubt whether Rule 220-A (3) of the Rules,
1998
introduced
by
Notification
No
777/XXX-4-2011-4(3)-2010
dated
26
September, 2011 i.e. The Uttar Pradesh
Motor Vehicles (Eleventh Amendment)
Rules, 2011 would apply retrospectively to
an accident that took place much before the
amendment. The issue is no longer res
integra in view of the Bench decision of
this Court in Sushil Kumar and others v.
M/s. Sampark Lojastic Private Limited
and others, 2017 (35) LCD 1311. In
Sushil Kumar(supra), it has been held :

31. Rule 220-A was inserted in
the Uttar Pradesh Motor Vehicles Rules,
1998 in view of the various decisions of the
law courts for providing benefit on account
of future prospects of the injured/deceased.
It
provides
for
addition
of
certain
percentage
of
the
income
of
the
injured/deceased in his actual income
depending
upon
the
age
of
the
injured/deceased for the purposes of
determination of the compensation. The
aforesaid Rule came into effect on
26.09.2011 after the decision of the claim
petition but before filing of the appeal
though
the
accident
took
place
on
08.05.2010 much before the enforcement of
the above Rule.

32. It is in view of the above that
an argument is being raised that Rule 220-A
of the Rules which came into effect on
26.09.2011 would not apply to the accident
which had taken place on 08.05.2010.

33. In Ram Sarup Vs. Munshi AIR
1963 SC 553 it was laid down that a change
in law during the pendency of an appeal has
to be taken into account and will cover the
rights of the parties.

34. The view expressed above was
followed by the Supreme Court in Mula Vs.
Godhu AIR 1971 SC 89.

35. In Dayawati Vs. Inderjit AIR
1966 SC 1423 the court had observed as
under:-If the new law speaks in language,
which expressly or by clear intendment, takes
in even pending matters, the court of trial as
well as the court of appeal must have regard
to an intention so expressed, and the court of
appeal may give effect to such a law even
after the judgment of the court of first
instance.

36. In Amarjit Kaur Vs. Pritam
Singh AIR 1974 SC 2068 effect was given to
the change in law during the pendency of an
appeal as the hearing of an appeal under the
procedural law of this country is in the nature
of rehearing of the suit by superior court.

37. It was in the light of the above
decisions that in Lakshmi Narayan Guin and
others Vs. Niranjan Modak AIR 1985 SC
111 it was held that a change in law during
the pendency of an appeal has to be taken
into account and will cover the right of the
parties.
7 All. Arvind Agrawal & Anr. Vs. Tanveer Ahmad & Ors.
653

38. The aforesaid decision was
followed by a Division Bench of this court
in U.P. State Road Transport Corporation
Vs. Smt. Madhu Sharma and others, 2003
(4) AWC 2620 which was a case in relation
to the provisions of the Motor Vehicles Act
and it was observed that it is apparent that
the change in law during the pendency of
the original proceedings has to be taken
into account so as to cover the rights of the
parties.

39. In view of above decision the
view expressed by the Division Bench of
this court in ICICI Lombard (Supra) is not
of good law as it does not takes into
account the decisions referred to above in
holding that the Rule 220-A of the Rules
which came into effect on 26.09.2011
would not apply to the accident that took
place prior to the said date only for the
reason that the Rule was not specifically
stated to be retrospective in nature.

31. According to the law laid down by
the Division Bench in Sushil Kumar
which apparently binds this Court the
award of future prospects is to be made in
accordance with Rule 220-A(3) of the
Rules of 1998, notwithstanding the fact that
accident happened prior to the amendment.
Now, going by Rule 220-A(3), considering
the age of the deceased, which was much
less than 40 years, 50% is to be added to
his income towards future prospects.

32. The claimants' entitlement under
the conventional heads is again governed
by the principles in Pranay Sethi where it
has been held :

48. This aspect needs to be
clarified
and
appositely
stated.
The
conventional sum has been provided in the
Second Schedule to the Act. The said
Schedule has been found to be defective as
stated by the Court in Trilok Chandra [UP
SRTC v. Trilok Chandra, (1996) 4 SCC
362] . Recently, in Puttamma v. K.L.
Narayana
Reddy
[Puttamma
v.K.L.
Narayana Reddy, (2013) 15 SCC 45 :
(2014) 4 SCC (Civ) 384 : (2014) 3 SCC
(Cri) 574] it has been reiterated by stating :
(SCC p. 80, para 54)

"54. ... we hold that the Second
Schedule as was enacted in 1994 has now
become
redundant,
irrational
and
unworkable due to changed scenario
including the present cost of living and
current rate of inflation and increased life
expectancy."

49.