# Babunandan & Anr v. Baggal Yadav & Ors

- **Citation:** (2023) 7 ILRA 142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-03
- **Case number:** First Appeal From Order No. 4050 of 2017
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babunandan-anr-v-baggal-yadav-ors-50388
- **Pages:** 7

## Headnote

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation-Fatal
accident-deceased
aged about 18 years, only Rs. 26,500/-
awarded by the Tribunal-Appellate Court
took a minimum wage of Rs. 35,000/-
per annum and added 50% for future
prospects-after
deduction
of
50%
towards personal expenses and applying
multiplier of 18, the total loss of
dependency comes to Rs. 4,72,500/-and
Rs. 70,000/- added towards various
conventional
damages-Entitlement
to
compensation of Rs. 5,42.000/- made
out- Interest of 7% and the manner of
payment decided by the learned tribunal is
just and lawful and does not call for
interference. (Para 1 to 33)
The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

142 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 7 ILRA 142
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 4050 of 2017

Babunandan & Anr. ...Appellants
Versus
Baggal Yadav & Ors. ...Respondents

Counsel for the Appellants:
Sri Sunil Kumar, Sri Daya Shankar

Counsel for the Respondents:
Sri Ashok Kumar Srivastava, Sri Rradeep
Kumar Sinha

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation-Fatal
accident-deceased
aged about 18 years, only Rs. 26,500/-
awarded by the Tribunal-Appellate Court
took a minimum wage of Rs. 35,000/-
per annum and added 50% for future
prospects-after
deduction
of
50%
towards personal expenses and applying
multiplier of 18, the total loss of
dependency comes to Rs. 4,72,500/-and
Rs. 70,000/- added towards various
conventional
damages-Entitlement
to
compensation of Rs. 5,42.000/- made
out- Interest of 7% and the manner of
payment decided by the learned tribunal is
just and lawful and does not call for
interference. (Para 1 to 33)
The appeal is partly allowed. (E-6)

List of Cases cited:

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

2. Magma General Ins. Co. Ltd. Vs Nanu Ram @
Chuhru Ram & ors. (2018) 18 SCC 130
3. National Ins. Co. Vs Pranay Sethi & ors.
(2017) 16 SCC 680

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

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

(Delivered by Hon'ble Ajay Bhanot, J.)

I. INTRODUCTION:

1. The instant appeal arises out of an
award made by the learned Motor Accident
Claims Tribunal/Additional District Judge,
Azamgarh1 in Motor Accident Claim
Petition No. 04 of 2002, Buabunandan and
anr. V Baggal yadav & Ors. dated
01.02.2007 by partly allowing the claim of
the claimants.

M.A. Claim Petition No. 04/2002,
Babunandan & anr. V Baggal Yadav & Ors.

II. Case of the claimants and
respondents before the learned tribunal:

2. Briefly the case of the claimants
before the learned tribunal was that the
deceased died of injuries sustained in an
accident which occurred on 02.01.1998,
and was caused by the rash and negligent
driving of the driver of truck bearing
Registration
No. UP 52A/2047. The
offending
vehicle
was
insured
by
respondent no. 3-Insurance Company. On
the fateful day, the deceased was returning
his house from the school when he met
with the accident. The claimants are the
parents of the deceased Shyam Narayan.
The deceased was 18 years of age at the
time of his death.

III. Compensation awarded by the
learned tribunal:
7 All. Babunandan & Anr. Vs. Baggal Yadav & Ors.
143

3. The learned tribunal in the
impugned judgement dated 01.02.2007
awarded compensation which is depicted in
the tabulated form hereunder:

Sr.No.
Heads
Amount
Awarded by the
tribunal
1
Monthly Income
500/-
2
Annual
Income

6000/-
3
Deduction
towards
personal
expenses

1/3
of
6000=
2000
4
Multiplier

11
5
Total loss of dependancy

2000x11
=
22000/-
6
Conventional
Heads
(a) Loss of consortium
(b)
loss
of
Estate
(c)
Funeral
Expenses

4500/-
7
Total
compensation

22000+4500=
26500-
8

Interest

6%

4. The claimants seek enhancement of
compensation by means of the instant
appeal.

IV. Submissions of learned counsels
for the parties:

5. Sri Daya Shankar, learned counsel
for
the
claimants
submits
that
the
compensation was not rightly calculated.
The learned tribunal erred in law and
incorrectly calculated the income, applied
an illegal multiplier and neglected to award
future prospects which is in teeth of the law
laid by Supreme Court in New India
Assurance Co. Ltd. vs. Urmila Shukla
and
others2
as
well
as
National
Insurance Company Ltd. vs. Pranay
Sethi and others3. The claimants were
entitled to a higher amount.

6. Shri Pradeep Kumar Sinha, learned
counsel for the Insurance Company does
not
satisfactorily
dispute
the
said
submissions.

V. Issue for Consideration:

7. After advancing their arguments,
learned counsels for the respective parties
agree that only the following question falls
for consideration in these appeals:

Whether the learned tribunal
erred while determining the compensation
under
these
heads:
income,
future
prospects,
application
of
multiplier,
conventional heads and interest? If yes, the
amount to which the claimants are entitled?

VI. Issue of income of the deceased:

8. The question of income of a child
while determining compensation to be paid
is a vexed question of facts and law. In
many cases the children are entirely
dependant on their parents and are not
earning. Moreover, even if they are earning,
the documentary evidence to support such
facts is hard to come by.

9. The Motor Vehicles Act bifurcates
children into two categories, namely
children below the age of 15 years and
those above that age. In a former class, a
notional income of Rs. 15,000/- per annum
is stipulated in the statute. However, the
sum was enhanced to Rs. 30,000/- per
annum by various judicial authorities.
Children above 15 years of age are treated
144 INDIAN LAW REPORTS ALLAHABAD SERIES
as a separate class by the legislature. This is
evident from the multiplier system in
Schedule II of the Motor Vehicles Act read
with Sarla Verma (Smt) and others Vs.
Delhi Transport Company and another4
which govern calculation of income of a
deceased child in the latter category.

10. The application of multiplier
system to children above 15 years is a
legislative recognition of the fact that while
the children in that age group may not be
actually earning and are dependant on their
parents but they have achieved a certain
employability
potential.
Employability
potential comprises various skills acquired
by children through formal education,
informal modes or from the socioeconomic environment which endows them
with the capacity to earn or contribute to
the family income. The employability
potential grows with the age and is liable to
be determined by factoring education,
acquisition of vocational skills (may be
hereditary),capacity to assist in households
chores, etc. Employment potential becomes
the basis of computation of income and
grant of compensation in such cases.

11. The jurisprudential foundation of
grant of compensation was laid by House
of Lords in Taff Vale Rly. Vs. Jankins5,
wherein the basis of grant of compensation
was the expectation of pecuniary benefit
and not the actual income which accrues to
the deceased.

12. Lord Atkinson in Taff Vale
(supra) set forth the legal position thus:

"...all that is necessary is that a
reasonable expectation of pecuniary benefit
should be entertained by the person who
sues. It is quite true that the existence of
this expectation is an inference of fact -
there must be a basis of fact from which the
inference can reasonably be drawn; but I
wish to express my emphatic dissent from
the proposition that it is necessary that
two of the facts without which the
inference cannot be drawn are, first, that
the deceased earned money in the past
and, second, that he or she contributed to
the support of the plaintiff. These are, no
doubt, pregnant pieces of evidence, but
they are only pieces of evidence; and the
necessary inference can, I think, be drawn
from
circumstances
other
than
and
different from them."

13. Judicial authorities has cited
earlier have fixed 30,000/- per annum as a
notional income for grant of compensation
in cases of death of minor children. [Ref:
Meena Devi Vs. Nunu Chand Mahto @
Nemchand Mahto and others6].

14. While the sum fixed by Supreme
Court in Meena Devi (supra) provides
valuable guidance in many cases but cannot
constitute a judicial standard to be applied
as a rule of thumb without consideration of
facts and circumstances of a case.

15. Meena Devi (supra) does not
absolve the court of the duty to makes
relevant enquiries into the facts and
evidences to determine the income of the
deceased
minor
child
by
examining
employability potential in light of various
factors discussed above.

16. The acquisition of skill is not
dependant on a formal training or a
certificate attesting such qualification. Skill
can be acquired through various means and
including informal ways. An environment
where such skills are being exercised on a
daily basis allows the child to imbibe such
skills.
7 All. Babunandan & Anr. Vs. Baggal Yadav & Ors.
145

17. Overwhelming majority of our
population is engaged in informal sectors
of the economy. They do not have well
documented evidence of their income.
However,
courts
can
apply
credible
yardsticks to determine the income in such
cases. With acquisition of skills and
knowledge the children can perform
various activities which will fortify the
family fortunes. This can take many forms
like young students with bright academic
records may take tuitions. A student who
has developed vocational skills may
contribute to the family income by doing
related tasks. In addition children may also
help
out
in
household
chores
and
agricultural activities.

18. Educational qualification of the
deceased was established. His contribution
to household chores was proved. These are
germane
factors
to
determine
the
employability potential and fixing the
income of deceased.

19. The learned tribunal determined
the income at Rs. 6000/- per annum. The
finding is perverse. The learned tribunal
erred in law by mechanically fixing the
income, and failing to make relevant
enquiries in this regard.

20. By virtue of his age and
education, the deceased had attained a
certain employment potentiality which was
unlawfully neglected from consideration.
The employment potentiality would be the
minimum income which a person would
draw from market based on his skills and
environment.

21. The deceased being a young able
bodied and educated adult of 18 years and
he had the capacity to take tuitions or
impart education to younger children.
Hence he will come in the category of
skilled worker.

22. In the facts of this case, a
minimum wage of Rs.35,000/- per annum
is just and equitable amount which can be
considered as the income of the deceased.

VII. Future Prospects:

23. The future prospects are liable to
be calculated in accordance with the Uttar
Pradesh Motor Vehicles Rules, 19987. Rule
220A-3(iii) of the Rules is relevant and is
reproduced hereunder:

"(3) The future prospects of a
deceased, shall be added in the actual
salary or minimum wages of the deceased
as under:

" (i) Below 40 years of age : 50%
of the salary."

24. The UP Rules, 1998 came up for
consideration before the Supreme Court in
New India Assurance Co. Ltd. vs. Urmila
Shukla and others8. In Urmila Shukla
(supra) upon consideration of various
judgements including National Insurance
Company Ltd. Vs. Pranay Sethi and
others9 held:

"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
146 INDIAN LAW REPORTS ALLAHABAD SERIES
prescription of 15% in cases where the
deceased was in the age bracket of 50-60
years as stated in Pranay Sethi cannot 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."

 (emphasis
supplied)

25. The Uttar Pradesh Motor Vehicles
Rules, 1998 were not under consideration
before the Supreme Court in Pranay Sethi
(supra) or Sarla Verma (Smt) and others
Vs. Delhi Transport Company and
another10. Future prospects in Pranay
Sethi (supra) were determined without
noticing the U.P. Rules,1998. This fact was
adverted to in Urmila Shukla (supra):

"8.It is submitted by Mr. Rao that
the judgment inPranay Sethidoes not show
that the attention of the Court was invited
to the specific rules such as Rule 3(iii)
which contemplates addition of 20% of the
salary as against 15% which was stated as a
measure in Pranay Sethi. In his submission,
since the statutory instrument has been put
in place which affords more advantageous
treatment, the decision in Pranay Sethi
ought not to be considered to limit the
application of such statutory Rule."

26. The U.P. Rules,1998 are statutory
in nature and their operation is not stymied
by Pranay Sethi (supra). The U. P. Rules,
1998 have the force of law and shall apply
with full force in appropriate cases. The
U.P. Rules, 1998 are more beneficial for
the claimants than the provisions made in
Pranay Sethi (supra) for them. The
holdings in Pranay Sethi (supra) can not
dilute the advantages conferred by U.P.
Rules,
1998
upon
the
eligible
beneficiaries.

27. In this wake, this Court finds that
the claimants/respondents are entitled to
50% enhancement in wages under the
head of future prospects as contemplated
in the UP Rules, 1998. The necessary
changes in the award shall be accordingly
made.

VIII.
Application
of
Split
Multiplier:

28. The age of the deceased was 18
years at the time of the accident. The
applicable multiplier as per Sarla Verma
(Smt) and others Vs. Delhi Transport
Company and another11 read with
Pranay Sethi (supra) is 18.

IX. Calculation of Conventional
Heads:

29. The amount determined under
conventional heads in the impugned award
is at variance with Pranay Sethi (supra).
The conventional heads were fixed in
Pranay Sethi (supra) by holding as
under:

"54. ......The conventional and
traditional heads, needless to say, cannot be
determined on percentage basis because
that would not be an acceptable criterion.
Unlike determination of income, the said
heads
have
to
be
quantified.
Any
quantification must have a reasonable
foundation. There can be no dispute over
the fact that price index, fall in bank
interest, escalation of rates in many a field
have to be noticed. The court cannot remain
7 All. Babunandan & Anr. Vs. Baggal Yadav & Ors.
147
oblivious to the same. There has been a
thumb rule in this aspect. Otherwise, there
will be extreme difficulty in determination
of the same and unless the thumb rule is
applied, there will be immense variation
lacking any kind of consistency as a
consequence of which, the orders passed by
the tribunals and courts are likely to be
unguided. Therefore, we think it seemly to
fix reasonable sums. It seems to us that
reasonable figures on conventional heads,
namely, loss of estate, loss of consortium
and funeral expenses should be Rs.
15,000/-, Rs. 40,000/- funeral expenses
should be Rs. 15,000/-, Rs. 40,000/- And
Rs. 15,000/- respectively."

30. The figure under conventional
heads determined in Pranay Sethi (supra)
shall be applicable to the facts of this case.
The award is modified accordingly.

X. Interest:

31. Interest of 7% and the manner of
payment decided by the learned tribunal is
just and lawful and does not call for
interference.

XI. Determination of Compensation
to which claimants are entitled:

32. In wake of the preceding
discussion, the amount of compensation to
which the claimants are entitled and are
hereby awarded, is tabulated hereunder:

i. Date of Accident - 02.01.1998

ii. Name of Deceased - Shyam
Narayan

iii. Age of the deceased - 18 years

iv. Occupation of the Deceased -
Student

v. Income of the deceased - 35000/-
per annum

vi. Name, Age and Relationship of
Claimants with the deceased:

Sr. No.
Name
Age
Relation
1.
Babunandan

Father
 2.
Pyari Devi

Mother

vii. Computation of Compensation

Sr.
No.
Heads
Amount (in Rupees)
1
Annual Income (A)

Rs. 35000/-
2
Future Prospects (B)

50% of 35000/-
=17500/-
3
Annual
Income
+
Future
Prospects
(A+B=C)
35000
+
17500
= 52,500/-
4
Deduction
towards
personal expenses (D)
(50%
of
C)

50%
of
52,500/-
= 26,250/-
5
Annual
Loss
of
dependancy
(E)
(C-D
=
E)

26,250/-
6
Multiplier
(F)

18
7
Total
loss
of
dependancy
(E x F)
26,250
x
18
= 4,72,500/-
8
Conventional Heads:
(a)
Loss
of
consortium
(b) Loss of Estate
(c) Funeral Expenses
70,000/-
9
Total
compensation

5,42,500/-
10
Interest

7%

XII. Conclusion and Directions:

33. In view of the above, the appeal is
partly allowed.
148 INDIAN LAW REPORTS ALLAHABAD SERIES

34. The amount of compensation to
which the claimants have been awarded
shall be deposited by the Insurance
Company within a period of three months
before the learned tribunal. Thereafter the
learned tribunal shall release the amount to
the claimants without delay. The amount
already disbursed to the claimants (if any)
shall be adjusted.

35. The amount deposited by the
appellant before this Court shall be
transmitted to the learned trial court which
shall release the same in favour of the
claimants.
----------
(2023) 7 ILRA 148
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 6136 of 2023

Omkar Lohiya ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rakesh Kumar Srivastava

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202 & 482 -
Negotiable
Instrument
Act,
1881
-
Section 138: - Application U/s 482 - for
quashing the summoning order as well as
entire proceedings - complaint - filed by the
opposite party no. 2 u/s 138 NI Act, - -
offence
of
Cheating
and
dishonesty
-
dishonour of cheques on the ground that
'Drawer signature Differ' - summoning order
- court feels that, the structural defect in the
cheque issued by any drawer may have
several
reasons,
which
may
either
be
bonafide, unintentional or be dishonest and
malafide - the difference in signature and
incomplete signature is none of several
categories of structural defects and the
reason of such structural defect is a matter of
trial and is required to be adjudged after
appreciation of the evidence - applicant has
taken plea of such structural defect just to
get rid of his criminal liability by seeking
quashment of impugned order in question
without making any plea about non-liability of
amount to make payment or the plea of any
debt or other liability of complainant to rebut
the stand of complainant - held, complaint u/s
138 NI Act, cannot be quashed by high court
by taking recourse to section 482 Cr.P.C., if
disputed questions of facts are involved which
need to be adjudicated after respective
evidence is led by the parties before the trial
court - accordingly, application is dismissed.
(Para - 10, 11, 12)

Application u/s 482 dismissed. (E-11)

List of Cases cited:

1. Messrs. Laxmi Dyechem Vs St. of Guj. &
ors.(2012) 13 SCC 375),

2. CC Alavi Haji Vs Palapetty Muhammed &
anr.(2007) 6 SCC 555),

3. Ajeet Seeds Ltd. Vs K. Gopala Krishnaiah,
(2014) 12 SCC 685),

4.
Bharat
Barrel
&
Drum
Manufacturing
Company Vs Amin Chand Payarelal (1999) 3
SCC 35),

5. Basalingappa Vs Nudibasappa (2019) 5 SCC
418),

6. Kishan Rao Vs Shankargauda (2018) 8 SCC
165),

7. Ranjit Vs St. of U.P. & anr.(Application u/s 482
no. 47282/2019 decided on 31.01.2020),

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)