# Ashish Kuar Yadav v. Aatma Nand Singh & Anr

- **Citation:** (2023) 8 ILRA 205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-21
- **Case number:** First Appeal From Order No. 3826 of 2009
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-kuar-yadav-v-aatma-nand-singh-anr-50587
- **Pages:** 15

## Headnote

A. Civil Law-Motor Vehicle Act, 1988Section
173-enhancement
of
compensation- At the time of the accident,
the claimant was a young man of 22 years
and a student. In consequence of the
injuries, the claimant turned from an ablebodied man to a permanently handicapped
- During treatment, the claimant's right
lower limb had to be amputated above the
knee, leading him to develop a permanent
handicap, which was assessed by the
Chief Medical Officer as 50% permanent
disability-the claimant has earned his high
school and intermediate certificate in the
second division and was reading as a
private candidate to earn his bachelor's
degree-
The
Tribunal
awarded
Rs.
9,52,000/- the injured falls in the bracket
of 21-25 years, wherefor, a multiplier of
'18' is envisaged- The Tribunal has fallen
in error in adopting the multiplier of 17-
Adding 40% for the future prospects, it
206 INDIAN LAW REPORTS ALLAHABAD SERIES
works to be Rs 6784.40 per month i.e.
81,412.80 p.a- Applying the multiplier of
18, it works out to Rs 14,65,430 and
Damages for pain, suffering and trauma in
consequence
of
the
injuries

Rs.
2,00,000/- and Loss of amenities of life
and loss of expectation of life or pain in
future Rs. 2000/- Thus, the claimant
granted total sum of Rs. 16,79,000/- at
the rate of 7% per annum.(Para 1 to 32)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,949 of 50,087. This is a partial read: ask again with offset=39949 for what follows._

8 All. Ashish Kuar Yadav Vs. Aatma Nand Singh & Anr.
205
Smt. Hansaguri P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, total
amount of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimant to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
while disbursing the amount.

22.

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

23. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private Ltd. v. Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation is to
safeguard the interest of the claimants. As
long period has elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.

24. This Court is thankful to both the
counsels for getting this matter decided.
----------
(2023) 8 ILRA 205
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2023

BEFORE

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

First Appeal From Order No. 3826 of 2009

Ashish Kuar Yadav ...Appellant
Versus
Aatma Nand Singh & Anr. ...Respondents

Counsel for the Appellant:
Sri Ram Singh, Sri Amit Kumar Sinha

Counsel for the Respondents:
Sri Amit Manohar

A. Civil Law-Motor Vehicle Act, 1988Section
173-enhancement
of
compensation- At the time of the accident,
the claimant was a young man of 22 years
and a student. In consequence of the
injuries, the claimant turned from an ablebodied man to a permanently handicapped
- During treatment, the claimant's right
lower limb had to be amputated above the
knee, leading him to develop a permanent
handicap, which was assessed by the
Chief Medical Officer as 50% permanent
disability-the claimant has earned his high
school and intermediate certificate in the
second division and was reading as a
private candidate to earn his bachelor's
degree-
The
Tribunal
awarded
Rs.
9,52,000/- the injured falls in the bracket
of 21-25 years, wherefor, a multiplier of
'18' is envisaged- The Tribunal has fallen
in error in adopting the multiplier of 17-
Adding 40% for the future prospects, it
206 INDIAN LAW REPORTS ALLAHABAD SERIES
works to be Rs 6784.40 per month i.e.
81,412.80 p.a- Applying the multiplier of
18, it works out to Rs 14,65,430 and
Damages for pain, suffering and trauma in
consequence
of
the
injuries

Rs.
2,00,000/- and Loss of amenities of life
and loss of expectation of life or pain in
future Rs. 2000/- Thus, the claimant
granted total sum of Rs. 16,79,000/- at
the rate of 7% per annum.(Para 1 to 32)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. R.D. Hattangadi Vs Pest Control (India) (P)
Ltd.(1995) 1 SCC 551 : 1995 SCC (Cri) 250

2. Govind Yadav Vs New India Ins. Co. Ltd.
(2011) 10 SCC 683 : (2012) 3 SCC (Civ) 1082 :
(2012) 1 SCC (Cri) 82 : (2012) 1 SCC (L&S) 422

3. Oriental Ins. Co. Ltd., Gzb. Vs Lokesh @
Lovesh & anr.

4. K. Suresh Vs New India Assr. Co. Ltd. (2012)
12 SCC 274 : (2013) 2 SCC (Civ) 279 : (2013) 4
SCC (Cri) 638 : AIROnline 2012 SC 633

5. Raj Kumar Vs Ajay Kumar (2011) 1 SCC 343 :
(2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri)
1161 : AIROnline 2010 SC 125

6. India Ins. Co. Ltd. Vs Nirmala Devi (1979) 4
SCC 365 : 1979 SCC (Cri) 996 : 1980 ACJ 55 :
AIR 1979 SC 1666

7. UPSRTC Vs Smt. Madhu Sharma & ors.
(2003) 4 AWC 2620

8. Lakshmi Narayan Guin & ors. Vs Niranjan
Modak (1985) AIR SC 111

9. Amarjit Kaur Vs Pritam Singh (1974) AIR SC
2068

10. Dayawati Vs Inderjit (1966) AIR SC 1423

11. Mula Vs Godhu (1971) AIR SC 89

12. Ram Sarup Vs Munshi (1963) AIR SC 553

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

14. Sushil K. Jagdish Vs Mohan & ors.

15. National Ins. Co. Ltd. Vs Pranay Sethi

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

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

This is a claimant's appeal, arising out
of the judgment and award passed by the
Motor
Accidents
Claims
Tribunal/Additional District Judge, Court
No. 1, Allahabad dated 09.04.2009 in
Claim Petition No. 638 of 2005, seeking
enhancement of the compensation awarded.

2. The facts giving rise to this appeal,
as set out in the claim petition, are :

On 1st June, 2005, Ashish Kumar
Yadav, the claimant-appellant1 was riding
pillion on motorcycle UP 70 AF 6420, that
had, in the rider's seat, Rajesh Kumar
Yadav. At about 06:30 a.m., when the two
reached Village Rangpura, falling under the
local limits of Police Station Soraon,
District Allahabad (now Prayagraj), a
dumper truck bearing Registration No. UP
70 AT 1665, driven at a high speed and
negligently, approached from the opposite
direction. It hit the motorcycle without
sound of horn. The accident led the
claimant to sustain grievous injuries. In
consequence, the claimant has become
permanently handicapped. At the time of
the accident, the claimant was a young man
of 22 years and a student. In consequence
of the injuries, the claimant turned from an
able-bodied
man
to
a
permanently
handicapped
and
disabled
individual.
During treatment, the claimant's right
lower limb had to be amputated above the
8 All. Ashish Kuar Yadav Vs. Aatma Nand Singh & Anr.
207
knee, leading him to develop a permanent
handicap, which was assessed by the Chief
Medical
Officer
as
50%
permanent
disability. The claimant had earned his
bachelor's degree and was preparing to
write his competitive examinations and
look for a job. The accident has left him
permanently crippled to the extent that he is
no longer in a position to secure a job or do
business to earn his livelihood. His future
has turned painful and bleak. The claimant
suffers from constant pain at the situs of the
grievous injury, that gives him pain and
suffering permanently. It is still being
treated and in future, would also require
treatment and expenditure on medicines, in
all likelihood. The claimant has to depend
upon a special diet and take nourishing
food, such as juices, fruits and tonics. He
has to bear additional expenditure to buy
the nourishing food required. There is
inconvenience, difficulty, pessimism, that
have become part of the claimant's life. The
injuries sustained in the accident and the
after-effects are such that the appellant
cannot live life the way he would and he
cannot do his daily needs. He has to depend
upon others. The likelihood is that this
difficulty and dependency would continue
for the remainder of his life. The injuries
have caused such debilitation that the
claimant cannot move about the way he
earlier did, or use a vehicle for conveyance
himself, as he would earlier do. The
claimant, in order to compensate himself
for the permanent injuries sustained,
claimed a sum of ₹30 lacs under Section
166 of the Motor Vehicles Act, 19882 and
₹25,000/- under Section 140 of the said Act
towards no-fault liability. The sum of
money claimed in compensation has been
sought to be awarded with interest at the
rate of 18% per annum from the date of
institution of the claim petition until
realisation.

3. Atmanand Singh is the owner of
Dumper Truck No. UP 70 AT 1665. He is
opposite party No. 1 to the claim petition
and respondent No. 1 to this appeal. He
shall hereinafter be referred to as 'the
owner'.
The
New
India
Assurance
Company Limited, Regional Office, 9th
Floor,
Indira
Bhawan,
Civil
Lines,
Prayagraj are the insurers of the offending
dumper. They are arrayed as opposite party
No. 2 to the claim petition and respondent
No. 2 to this appeal. The aforesaid
insurance company shall hereinafter be
referred to as 'the Insurers'.

4. The owner has put in a written
statement, generally denying the allegations
in the claim petition, except the fact that he
is the owner of the offending vehicle. It is
asserted that it was insured with the
Insurers. The insurance policy was valid
and
effective
from
24.01.2005
to
23.01.2006. It is also asserted that the
driver had a valid driving licence, effective
from 18.09.2004 to 17.09.2007. It is
averred that the motorcycle rider and its
owner have not been arrayed as parties,
rendering the claim petition bad for nonjoinder of necessary parties. It is further
pleaded that the accident took place due to
rash and negligent riding by the motorcycle
rider, and it had happened an hour before
the offending dumper truck reached the site
of accident. The offending vehicle was
framed in the accident on account of local
political pressure.

5. The Insurers have put in a separate
written
statement,
also
denying
the
allegations in the claim petition. It is
averred that they had no information about
the accident. It is also pleaded that the
offending dumper was driven by a driver,
who did not hold a valid driving licence.
The offending vehicle did not have a
208 INDIAN LAW REPORTS ALLAHABAD SERIES
registration
certificate
or
a
fitness
certificate. It was being operated in
violation of the terms and conditions of the
insurance policy and the Insurers are
entitled to claim benefit of Section 64VB of
the Insurance Act, 1938. The further case of
the Insurers was that the accident had not
taken place in the manner alleged but due
to the motorcycle rider's fault.

6. On the pleadings of parties, the
following issues were framed by the
Tribunal :

1. Whether on 1.6.2005 when
the
claimant
was
travelling
on
a
motorcycle No. U.P. 70 AF 6420 and
when he reached in village Rangpura P.S.
Soraon at 6-30 a.m. a truck No. U.P. 70
AT 1665 (Dumper) which was coming
from opposite side was being driven in
rash and negligent manner hit the motor
cycle causing grievous injuries to the
claimant ?

2. Whether the said truck was not
insured with the O.P. Company ?

3. Whether the truck driver did
not possessed valid D.L. on the day of
accident ?

4. Whether the truck was being
plied against the conditions of insurance
policy ?

5.
Whether
the
insurance
company is entitled to get benefit of section
64 V.B. of Insurance Act?

6. Whether the said accident was
caused due to rash and negligent driving of
the motor cycle driver?

7.
Whether
the
petition
is
defective as owner and driver of the
motorcycle have not been arrayed as party
as alleged in para 16-17 of W.S. 12 A?

8. Whether the claimant is
entitled to any relief? If yes then how much
and from whom?

7. The claimant has filed photostat
copies of 14 documents, including a check
F.I.R., two discharge cards, the physical
handicap
certificate,
his
educational
certificates, the registration certificate of
the offending vehicle and its fitness
certificate. The Insurers have filed two
documents, to wit, the certificate of the
ARTO, Palamu, Jharkhand regarding the
driving licence of the offending vehicle's
driver and the certificate of insurance
issued by them.

8. The Tribunal answered Issue No. 1
in favour of the claimant, holding that the
accident was caused partly on account of
rash and negligent driving by the driver of
the offending vehicle, the dumper truck.
Issue No. 2 was decided against the
Insurers and in favour of the claimant and
the owner. Issue No. 3 was also decided in
favour of the claimant and the owner and
against the Insurers, holding that there is no
evidence to show that the driving licence of
the dumper truck's driver is fake or forged.
Issue No. 4 was also decided against the
Insurers and in favour of the claimant and
the owner, holding that the offending
vehicle was not being plied against the
conditions of the insurance policy. Issue
No. 5 was decided against the Insurers and
in favour of the claimant and the owners.
Issue No. 6 was decided against the owner
and the Insurers, holding that the accident
was not caused due to rash and negligent
driving by the motorcyclist. Issue No. 7
was decided against the owner, at whose
instance, it was framed and in favour of the
claimant. It was held that given the findings
on the other issues, it was not necessary to
implead the owner, the rider and the
Insurers of the motorcycle as parties to the
claim petition. Issue No. 8 relates to the
quantum of compensation payable and the
party obliged to satisfy the award.
8 All. Ashish Kuar Yadav Vs. Aatma Nand Singh & Anr.
209

9. It must be remarked that this is an
appeal by the claimant, and as already
noticed, effectively it is the finding on Issue
No. 8 alone that is up for consideration in
this appeal. Since liability to satisfy the
award has been fastened on the Insurers,
the appeal has been effectively heard, with
the claimant supporting his case of
enhancement, and, the Insurers, opposing
it. The owner has not contested before this
Court.

10. Heard Mr. Amit Kumar Sinha,
learned Counsel for the claimant, Mr. Amit
Manohar, learned Counsel appearing on
behalf of the Insurers. No one appears for
the owners.

11. The Tribunal has considered the
fact that the claimant has earned his high
school and intermediate certificate in the
second division and was reading as a
private candidate to earn his bachelor's
degree. The Tribunal has, in view of the
contemporary prospects of the injured,
assessed his monthly income at a sum of
₹5,000/-. On that basis, the annual income
has been assessed as a sum of ₹60,000/-.
The 50% physical handicap certificate has
been considered as a 50% permanent loss
of income. The Tribunal has also remarked
that in future, the claimant can secure a job
or undertake business and may get benefit
of employment under the Physically
Handicapped quota.

12. For the multiplier to be adopted,
the Tribunal has fallen back upon the
Second Schedule to the Act and looking to
the age of the injured, a multiplier of '17'
has been chosen. Thus, multiplying the
annual income with the chosen multiplier
of 17, the substantive entitlement on
account of loss of income has been
determined at a figure of ₹5,10,000/-. The
expenses towards treatment and medical
procedures with reference to vouchers and
receipts on record have been found by the
Tribunal to be a sum of ₹4,11,648.76 which
the Tribunal has rounded off to ₹4,12,000/-.
Under the head of special diet, which the
claimant had to consume, the Tribunal has
awarded a sum of ₹25,000/-. Under the
head of mental shock and pain, bearing in
mind that the right lower limb of the
claimant has been amputated, he has been
awarded a sum of ₹5,000/-. It is in this way
that a total sum of ₹9,52,000/- has been
awarded to the claimant in compensation.

13. Mr. Amit Kumar Sinha, learned
Counsel for the claimant has argued that
the compensation awarded is far below
entitlement. What he does not dispute is the
monthly income assessed by the Tribunal
and the extent of loss of earning capacity
caused by the accident. He submits that
going by the age of the claimant, a
multiplier of '18' ought to have been
adopted. It is also argued that the Tribunal
has erred in not granting anything towards
total loss of income for six months that the
injured was under treatment and bedridden.
It is also submitted that the Tribunal has
erred in not granting anything towards
future prospects as also attendant charges
for the six months of treatment. There is no
objection to the award under the head of
medical expenses, money spent on special
diet and nourishing food. Learned Counsel,
however, claims that a sum of ₹2,50,000/-
ought
to
have
been
awarded
in
compensation towards permanent disability
and ₹2 lacs towards pain and suffering. In
this connection, reliance has been placed by
the learned Counsel on the decision of the
Supreme Court in K. Suresh v. New India
Assurance
Company
Limited
and
another3 and as regards compensation
under the head of pain and suffering, upon
210 INDIAN LAW REPORTS ALLAHABAD SERIES
the decision of the Supreme Court in V.
Mekala v. M. Malathi and another4. A
sum of ₹2 lacs has been further claimed
under the head of loss of amenities, and a
further sum of ₹3 lacs on ground of bleak
prospects of marriage. In support of both
the last mentioned heads of claim, learned
Counsel for the claimant has relied upon V.
Mekala (supra). As regards future medical
expenses and the price of an artificial limb,
a sum of ₹2 lacs has been claimed. In this
regard, learned Counsel for the claimant
has placed reliance upon the decision of the
Supreme Court in Subulaxmi v. Managing
Director, Tamil Nadu State Transport
Corporation and another5. The claimant
says
that
the
award
ought
to
be
appropriately enhanced.

14. Mr. Amit Manohar, on the other
hand, says that the impugned award is a
just and fair award, which need not be
disturbed. It is particularly argued that the
injured is a student and did not have any
income in presenti. The income has been
determined by the Tribunal notionally on
the
basis
of
education
and
other
circumstances of the injured, which is a
liberal figure of ₹5000/- per month.

15. Upon hearing learned Counsel for
parties, this Court finds that so far as the
monthly
income
of
the
injured
is
concerned, the parties are ad idem. Thus, in
order to work out the compensation
payable, this Court proceeds on the
assumption that the claimant had an income
or notional income of ₹5,000/- per month.
It is also not much in the realm of doubt
that the 50% medical disability, that has
been made basis by the Tribunal to infer a
50%
functional
disability,
is
correct
assessment.
The
reason
is
that
the
disablement is no doubt permanent. It is the
loss of a limb for a young man, who has
just earned his bachelor's degree. The
remarks of the Tribunal that the claimant
might
get
employment
under
the
handicapped quota is a mere possibility,
and nothing more. It has to be borne in
mind that for a young man, or for that
matter, a person of any age, his health and
physical fitness are the most fundamental
features of his capability to earn. No doubt,
in certain kinds of employ, such as clerical
job, the loss of a limb may lead to an
inference about a lesser percentage of
functional disability, compared to a person
requiring
physical
exertions,
like
a
mechanic or a driver. In the case of a driver,
the loss of a limb may result in 100%
physical disability. But, between these
extremes, for a man yet to start off his
venture of life, losing one of the lower
limbs at the most conservative estimate,
would be a 50% physical disability. We are
in agreement with the Tribunal's opinion on
this point. In this connection, reference
may be made to the decision of the
Supreme Court in Raj Kumar v. Ajay
Kumar and another6 where it has been
held :

12. Therefore, the Tribunal has to
first decide whether there is any permanent
disability and, if so, the extent of such
permanent disability. This means that the
Tribunal should consider and decide with
reference to the evidence:

(i) whether the disablement is
permanent or temporary;

(ii)
if
the
disablement
is
permanent, whether it is permanent total
disablement
or
permanent
partial
disablement;

(iii) if the disablement percentage
is expressed with reference to any specific
limb, then the effect of such disablement of
the limb on the functioning of the entire
8 All. Ashish Kuar Yadav Vs. Aatma Nand Singh & Anr.
211
body, that is, the permanent disability
suffered by the person.

If the Tribunal concludes that
there is no permanent disability then there
is no question of proceeding further and
determining the loss of future earning
capacity. But if the Tribunal concludes that
there is permanent disability then it will
proceed to ascertain its extent. After the
Tribunal ascertains the actual extent of
permanent disability of the claimant based
on the medical evidence, it has to
determine
whether
such
permanent
disability has affected or will affect his
earning capacity.

13. Ascertainment of the effect of
the permanent disability on the actual
earning capacity involves three steps. The
Tribunal has to first ascertain what
activities the claimant could carry on in
spite of the permanent disability and what
he could not do as a result of the permanent
disability (this is also relevant for awarding
compensation under the head of loss of
amenities of life). The second step is to
ascertain his avocation, profession and
nature of work before the accident, as also
his age. The third step is to find out
whether (i) the claimant is totally disabled
from earning any kind of livelihood, or (ii)
whether in spite of the permanent disability,
the claimant could still effectively carry on
the activities and functions, which he was
earlier carrying on, or (iii) whether he was
prevented or restricted from discharging his
previous activities and functions, but could
carry on some other or lesser scale of
activities and functions so that he continues
to earn or can continue to earn his
livelihood.

14. For example, if the left hand
of a claimant is amputated, the permanent
physical or functional disablement may be
assessed around 60%. If the claimant was a
driver or a carpenter, the actual loss of
earning capacity may virtually be hundred
per cent, if he is neither able to drive or do
carpentry. On the other hand, if the
claimant was a clerk in government service,
the loss of his left hand may not result in
loss of employment and he may still be
continued as a clerk as he could perform
his clerical functions; and in that event the
loss of earning capacity will not be 100%
as in the case of a driver or carpenter, nor
60% which is the actual physical disability,
but far less. In fact, there may not be any
need to award any compensation under the
head of "loss of future earnings", if the
claimant continues in government service,
though he may be awarded compensation
under the head of loss of amenities as a
consequence of losing his hand. Sometimes
the injured claimant may be continued in
service, but may not be found suitable for
discharging the duties attached to the post
or job which he was earlier holding, on
account of his disability, and may therefore
be shifted to some other suitable but lesser
post with lesser emoluments, in which case
there should be a limited award under the
head of loss of future earning capacity,
taking note of the reduced earning capacity.

16. In the circumstances obtaining
here, the principle in Raj Kumar (supra)
would apply to infer a 50% disability,
considering that the deceased was not yet
employed but on the brink of it, aged just
22 years. Any further reduction of the
numerical value of the functional disability
based on some kind of a hypothesis about a
possible future employment would be too
conjectural. This Court, therefore, affirms
the Tribunal's finding about the 50%
permanent functional disability and a
corresponding permanent loss of income.

17. Now, so far as the multiplier to be
adopted is concerned, this Court is of
212 INDIAN LAW REPORTS ALLAHABAD SERIES
opinion that the Tribunal has erred in
falling back upon the Second Schedule of
the Act. The law in this regard is well
settled and it is, that the multiplier to be
adopted is the one indicated in the table in
Paragraph No. 40 of the report of the
decision in Sarla Verma (Smt.) and
others v. Delhi Transport Corporation
and another7. Going by the aforesaid
table, the injured falls in the bracket of 2125 years, wherefor, a multiplier of '18' is
envisaged. Therefore, this Court holds that
the Tribunal has fallen in error in adopting
the multiplier of 17. It should be 18.

18. So far as the future prospects are
concerned, it is too well settled to brook
doubt that the claimant must be held
entitled to compensation for the loss of
future prospects, whether he secured a job
or pursued self-employment. In case of a
self-employed man, who was a carpenter,
the Supreme Court in Jagdish v. Mohan
and others8 granted future prospects to the
tune of 40% of the income, following the
decision of the Constitution Bench in
National Insurance Co. Ltd. v. Pranay
Sethi9. In the State of Uttar Pradesh, going
by the decision in New India Assurance
Co. Ltd. v. Urmila Shukla and others10
future prospects are to be awarded in
accordance with Rule 220A(3) of the U.P.
Motor Vehicles Rules, 199811 and not the
principle in Pranay Sethi (supra). In
Urmila Shukla (supra) it was 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 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
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 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.

19. The accident here took place in
the year 2005, and the Rules of 1998 came
into effect on 26.09.2011. The question
whether
these
rules
would
apply
restrospectively
to
an
accident
that
happened before the amendment has been
answered by a Division Bench of this Court
in Sushil Kumar and others v. M/s.
Sampark Lojastic Private Limited and
others12. In Sushil Kumar (supra) it was
held :

31. Rule 220-A was inserted in
the Uttar Pradesh Motor Vehicles Rules,
8 All. Ashish Kuar Yadav Vs. Aatma Nand Singh & Anr.
213
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 220A 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.

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.

20. In view of the law laid down in
Sushil Kumar, the award of future
prospects is to be made in accordance with
Rule 220-A(3) of the Rules of 1998, even if
the
accident
happened
prior
to
the
amendment. The said rule provides an
addition of 50% of the income towards
future prospects. The rule, no doubt, speaks
about future prospects of the deceased, but
there is no reason why it should be
confined to the dependants of a dead man
alone, and not a man living, who suffers the
loss of a percentage of his income for the
whole of his life. Considering that the
injured here was aged 22 years, that is to
214 INDIAN LAW REPORTS ALLAHABAD SERIES
say, below 40 years, an addition of 50%
towards future prospects to his lost income
has to be made.

21. The next head of compensation is
in respect of attendant charges. The
claimant was hospitalized from 01.06.2005
to
19.07.2005
and
01.08.2005
to
09.08.2005, that is to say, a total period of 1
month and 27 days. It has been stated by
the claimant, while testifying as P.W.1 in
his deposition on affidavit in lieu of his
examination-in-chief, that he has suffered a
permanent handicap and is unable to
undertake daily activities. It is difficult for
him to move about. He always needs the
support of another. It is also stated that he
has to make special arrangements in case
he has to go out somewhere, which
involves expenditure. It has been averred
that the claimant cannot walk without
another's support. In his cross-examination
at the instance of the Insurers, nothing
material has been elicited, which may
dispel the above assertions. The claimant
before this Court has demanded attendant
charges for a period of six months after the
accident at the rate of ₹5,000/- per month.
Given the nature of the injury and looking
to the fact that the right lower limb of the
injured had to be amputated, this Court is
of opinion that attendant charges for six
months at the rate of ₹5,000/- per month
ought to be awarded. The medical bills, that
have been accepted for a figure of
₹4,12,000/- by the Tribunal, have not been
disputed by the claimant, as also the sum of
₹25,000/- towards special and extranourishing diet. Therefore, the award of the
Tribunal on these two counts need not be
disturbed.

22. Learned Counsel for the claimant
has asserted further claims under the head
of permanent disability in the sum of
₹25,000/-, for pain and suffering in the sum
of ₹2 lacs, ₹2 lacs for loss of amenities, ₹3
lacs for bleak prospects of marriage and ₹2
lacs for future medical expenses and the
cost of artificial limb. So far as the heads
under which damages are to be granted in
case of permanent disability, including the
award of future prospects in an injury case,
the question fell for consideration in Pappu
Deo Yadav v. Naresh Kumar13. After a
survey of previous authority, it was held by
their Lordships in Pappu Deo Yadav
(supra) thus :

11. Yet later and more recently in
an accident case, which tragically left in its
wake a young girl in a life-long state of
paraplegia, this court, in Kajal v. Jagdish
Chand, reiterated that in addition to loss of
earnings, compensation for future prospects
too could be factored in, and observed that:

"14.
In
Concord
of
India
Insurance Co. Ltd. v. Nirmala Devi
[Concord of India Insurance Co. Ltd. v.
Nirmala Devi, (1979) 4 SCC 365 : 1979
SCC (Cri) 996 : 1980 ACJ 55 : (AIR 1979
SC 1666)], this Court held : (SCC p. 366,
para 2)

"2. ... the determination of the
quantum must be liberal, not niggardly
since the law values life and limb in a free
country in generous scales."

15. In R.D. Hattangadi v. Pest
Control (India) (P) Ltd. [R.D. Hattangadi v.
Pest Control (India) (P) Ltd., (1995) 1 SCC
551 : 1995 SCC (Cri) 250 : (AIR 1995 SC
755)], dealing with the different heads of
compensation in injury cases this Court
held thus : (SCC p. 556, para 9)

"9. Broadly speaking while fixing
the amount of compensation payable to a
victim of an accident, the damages have to
be
assessed
separately
as
pecuniary
damages and special damages. Pecuniary
damages are those which the victim has
8 All. Ashish Kuar Yadav Vs. Aatma Nand Singh & Anr.
215
actually incurred and which are capable of
being calculated in terms of money;
whereas non-pecuniary damages are those
which are incapable of being assessed by
arithmetical calculations.

In
order
to
appreciate
two
concepts pecuniary damages may include
expenses incurred by the claimant: (i)
medical attendance; (ii) loss of earning of
profit up to the date of trial; (iii) other
material loss. So far as non-pecuniary
damages are concerned, they may include :
(i) damages for mental and physical shock,
pain and suffering, already suffered or
likely to be suffered in the future; (ii)
damages to compensate for the loss of
amenities of life which may include a
variety of matters i.e. on account of injury
the claimant may not be able to walk, run
or sit; (iii) damages for loss of expectation
of life i.e. on account of injury the normal
longevity of the person concerned is
shortened; (iv) inconvenience, hardship,
discomfort, disappointment, frustration and
mental stress in life."

16. In Raj Kumar v. Ajay Kumar
[Raj Kumar v. Ajay Kumar, (2011) 1 SCC
343 : (2011) 1 SCC (Civ) 164 : (2011) 1
SCC (Cri) 1161 : (AIROnline 2010 SC
125)] , this Court laid down the heads
under which compensation is to be awarded
for personal injuries : (SCC p. 348, para 6)

"6. The heads under which
compensation is awarded in personal injury
cases are the following:

Pecuniary
damages
(Special
damages)

(i) Expenses relating to treatment,
hospitalisation, medicines, transportation,
nourishing
food,
and
miscellaneous
expenditure.

(ii) Loss of earnings (and other
gains) which the injured would have made
had he not been injured, comprising:

(a) Loss of earning during the
period of treatment;

(b) Loss of future earnings on
account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General
damages)

(iv) Damages for pain, suffering
and trauma as a consequence of the
injuries.

(v) Loss of amenities (and/or loss
of prospects of marriage).

In routine personal injury cases,
compensation will be awarded only under
heads (i), (ii)(a) and (iv). It is only in
serious cases of injury, where there is
specific medical evidence corroborating the
evidence
of
the
claimant,
that
compensation will be granted under any of
the heads (ii)(b), (iii), (v) and (vi) relating
to loss of future earnings on account of
permanent
disability,
future
medical
expenses, loss of amenities (and/or loss of
prospects
of
marriage)
and
loss
of
expectation of life."

17. In K. Suresh v. New India
Assurance Co. Ltd. [K. Suresh v. New
India Assurance Co. Ltd., (2012) 12 SCC
274 : (2013) 2 SCC (Civ) 279 : (2013) 4
SCC (Cri) 638 : (AIROnline 2012 SC 633)]
, this Court held as follows : (SCC p. 276,
para 2)

"2. ... There cannot be actual
compensation for anguish of the heart or
for
mental
tribulations.
The
quintessentiality lies in the pragmatic
computation of the loss sustained which
has to be in the realm of realistic
approximation. Therefore, Section 168 of
the Motor Vehicles Act, 1988 (for brevity
"the Act") stipulates that there should be
grant of "just compensation". Thus, it
becomes a challenge for a court of law to
determine "just compensation" which is
216 INDIAN LAW REPORTS ALLAHABAD SERIES
neither a bonanza nor a windfall, and
simultaneously, should not be a pittance."

*********
*********
**********

Loss of earnings

20. Both the courts below have
held that since the girl was a young child of
12 years only notional income of Rs 15,000
p.a. can be taken into consideration. We do
not think this is a proper way of assessing
the future loss of income. This young girl
after studying could have worked and
would have earned much more than Rs
15,000 p.a. Each case has to be decided on
its own evidence but taking notional
income to be Rs 15,000 p.a. is not at all
justified. The appellant has placed before
us material to show that the minimum
wages payable to a skilled workman is Rs
4846 per month. In our opinion, this would
be the minimum amount which she would
have earned on becoming a major. Adding
40% for the future prospects, it works to be
Rs 6784.40 per month i.e. 81,412.80 p.a.
Applying the multiplier of 18, it works out
to Rs 14,65,430.40, which is rounded off to
Rs 14,66,000.
(emphasis by Court)

23. Now, reckoning the heads as laid
down in Raj Kumar and endorsed in
Pappu Deo Yadav, this Court has dealt
with all the heads of entitlement for the
claimant under pecuniary damages (special
damages) except future medical expenses.
The claimant before this Court has
demanded a sum of ₹2 lacs towards future
medical expenses and price of artificial
limb. There is nothing said in the evidence
of the injured about the use of an artificial
limb, but this Court cannot ignore from
consideration the fact that the permanent
disability
certificate
and
the
parole
evidence show that the right lower limb of
the claimant has been amputated in
consequence of the accident. Even if he has
not yet resorted to an artificial limb, he is
certainly in need of it and would use one
anytime in future to improve the quality of
life. The expenses for securing such a limb
are not a remote cause, but a direct impact
of the accident that he has suffered. There
is testimony to the effect that whenever
there is pain, the appellant has to be treated
for it. The condition of the claimant shows
that he would incur medical expenses to
take care of the condition emergent on
account
of
accident
in
future
also.
Regarding the cost of replacement of an
artificial limb, which would also take in its
fold the acquisition of one for the first time,
I have held in Oriental Insurance Co.
Ltd., Ghaziabad v. Lokesh alias Lovesh
and another14 :

25.