# Gaya Prasad v. Smt. K. Trivedi & Anr. 1030 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2019) 2 ILRA 1029
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** First Appeal From Order No. 16 of 2004
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaya-prasad-v-smt-k-trivedi-anr-1030-indian-law-reports-allahabad-series-44547
- **Pages:** 5

## Headnote

A. Motor Vehicles Act,1988 - Section
163-A - Notional Income - Notional
income has to be determined on the
basis of Second Schedule of Section 163A of the Motor Vehicles Act. (Para 10)
B. Motor Vehicles Act, 1988- Multiplier
for Age upto 15 years - Multiplier of 15
Held:-In cases where the age of the deceased
is upto 15 years, irrespective of Section 166 or
Section 163-A under which the claim for
compensation has been made, multiplier of 15
and the assessment as indicated in the Second
Schedule subject to correction as pointed out
in Column (6) of the Table in Sarla Verma
should be followed. (Para 12)
Appeal Partly allowed (E-5)
List of cases cited: -
1.Kishan Gopal & anr. Vs Lala (2013) 4 T.A.C.
5 (S.C.)
2.Reshma Kumari & ors. Vs Madan Mohan &
anr. (2013) 9 SCC 65
3.National Insurance Company Ltd. Vs Pranay
Sethi & ors. (2017) 16 SCC 680
4.M/s Royal Sundaram Alliance Insurance
Company Ltd. Vs Mandala Yadagiri Goud &
ors. (2019) 5 SCC 554,
5.Khalil Ahmad & anr. Vs Jitendra Bhushen
Pandey & anr. F.A.F.O. No.377 of 2001
6.Om Prakash Verma Vs Smt. Krishna Goel
F.A.F.O. No.285 of 2009

## Text

2 All. Gaya Prasad Vs Smt. K. Trivedi & Anr.
1029
insurer of the vehicle and the Tribunal
makes the award only against the owner,
on an appeal by the owner challenging the
quantum, the appellate court can make the
insurer jointly and severally liable to pay
the compensation, along with the owner,
even though the claimants had not
challenged the non-grant of relief against
the insurer. Be that as it may.

8. Where an appeal is filed
challenging
the
quantum
of
compensation, irrespective of who files
the appeal, the appropriate course for the
High Court is to examine the facts and by
applying
the
relevant
principles,
determine the just compensation. If the
compensation determined by it is higher
than the compensation awarded by the
Tribunal, the High Court will allow the
appeal, if it is by the claimants and
dismiss the appeal, if it is by the
owner/insurer.
Similarly,
if
the
compensation determined by the High
Court is lesser than the compensation
awarded by the Tribunal, the High Court
will dismiss any appeal by the claimants
for enhancement, but allow any appeal by
the owner/insurer for reduction. The High
Court cannot obviously increase the
compensation in an appeal by the
owner/insurer
for
reducing
the
compensation, nor can it reduce the
compensation in an appeal by the
claimants
seeking
enhancement
of
compensation." (emphasis supplied)

17. The Tribunal has assessed the
monthly income of the deceased at
Rs.3000/-. The Tribunal has rightly taken
into consideration the aforesaid income
for computing the compensation. The
annual income comes to Rs.36,000/-. If
50% of the said income is deducted
towards personal and living expenses of
the deceased, the contribution to the
family will be Rs.18,000/-. At the time of
the accident, the deceased Dinesh Kumar
Shukla was a bachelor of about 20 years
old. Hence on the basis of the decision in
Sarla
Verma
(supra)
applying
the
multiplier of 18, the amount will come to
Rs.3,24,000/-. Besides this amount the
claimants have been held entitled to
Rs.2,000/- on account of funeral and ritual
expenses. Therefore, the total amount
comes to Rs.3,26,000/- and the claimants
are entitled to get the said amount of
compensation instead of the amount
awarded by the Tribunal. They would also
be entitled to get interest at the rate of 6%
per annum from the date of the filing of
the claim petition till realization.

18. In view of the above, the appeal
is partly allowed. The impugned judgment
and award stands modified to the above
extent. The amount which has already
been received by the respondents nos.1
and 2 shall be adjusted and the rest of the
amount be paid at an early date. No order
as to cost.

19. The original record shall be
returned to the Tribunal forthwith.
----------

(2019)10ILR A 1029

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2019

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 16 of 2004

Gaya Prasad ...Appellant
Versus
Smt. K. Trivedi & Anr. ...Respondents
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri M. Saeed

Counsel for the Respondents:
Sri R.C. Sharma

A. Motor Vehicles Act,1988 - Section
163-A - Notional Income - Notional
income has to be determined on the
basis of Second Schedule of Section 163A of the Motor Vehicles Act. (Para 10)
B. Motor Vehicles Act, 1988- Multiplier
for Age upto 15 years - Multiplier of 15
Held:-In cases where the age of the deceased
is upto 15 years, irrespective of Section 166 or
Section 163-A under which the claim for
compensation has been made, multiplier of 15
and the assessment as indicated in the Second
Schedule subject to correction as pointed out
in Column (6) of the Table in Sarla Verma
should be followed. (Para 12)
Appeal Partly allowed (E-5)
List of cases cited: -
1.Kishan Gopal & anr. Vs Lala (2013) 4 T.A.C.
5 (S.C.)
2.Reshma Kumari & ors. Vs Madan Mohan &
anr. (2013) 9 SCC 65
3.National Insurance Company Ltd. Vs Pranay
Sethi & ors. (2017) 16 SCC 680
4.M/s Royal Sundaram Alliance Insurance
Company Ltd. Vs Mandala Yadagiri Goud &
ors. (2019) 5 SCC 554,
5.Khalil Ahmad & anr. Vs Jitendra Bhushen
Pandey & anr. F.A.F.O. No.377 of 2001
6.Om Prakash Verma Vs Smt. Krishna Goel
F.A.F.O. No.285 of 2009
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Sri M. Saeed, learned
counsel for the appellant and Sri R.C.
sharma,
learned
counsel
for
the
respondents.

2. The instant first appeal from order
has been preferred against the judgment
and award dated 07.10.2003 passed by
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.9 in Motor Accident Claim Petition
No. 259 of 2001(Gaya Prasad versus smt.
K. Trivedi and another) for enhancement
of the awarded amount.

3. Brief facts of the case are that the
deceased Ashish Kumar,son of the
appellant/claimant,
had
died
in
an
accident by Jeep No. U.P. 78 T 1182 on
19.08.2001. Therefore the claim petition
was filed by the appellant/claimant
claiming compensation. The respondents
had filed the written statement.

4. On the basis of the pleadings of
the parties, four issues were framed. After
evidence and hearing learned counsel for
the parties, learned Tribunal has allowed
the claim petition partly and awarded the
amount of Rs. 55,000/- as compensation
alongwith interest at the rate of 8% per
annum, out of which 27500 is to be paid
to the appellant/claimant and Rs.27,500/-
to his wife, i.e., the mother of the
deceased.
Being
aggrieved
by
the
compensation
awarded
by
learned
Tribunal, the present appeal has been filed
for enhancement of compensation.

5. Submission of learned counsel for
the appellant is that the deceased Ashish
Kumar was aged about 14 years at the
time of accident and he was studying in
Class VIII and was a bright student. There
were 6 dependents. If he would have been
alive, earned a lot and helped the
appellant
but
the
learned
Tribunal
wrongly
and
illegally
assessed
the
notional income of the deceased as
Rs.15,000/- which should have been
2 All. Gaya Prasad Vs Smt. K. Trivedi & Anr.
1031
higher in view of Kishan Gopal and
Another versus Lala; 2013(4) T.A.C.,5
(S.C). He further submitted that the
multiplier of 5 has wrongly been applied
by the learned Tribunal on the age of the
father of the deceased while it should
have been applied according to the age of
the deceased or if the parents are the
claimants, then on the age whose age was
less at the time of death and, accordingly,
the multiplier is liable to be modified. He
further submitted that the lesser amount
has been awarded towards conventional
heads, namely loss of estate, loss of
consortium and loss of funeral expenses,
which are also liable to be enhanced.
Accordingly, learned counsel for the
appellant submitted that the appeal may
be allowed and the impugned judgment
and award passed by the learned Motor
Accident
Claims
Tribunal
may
be
modified and the amount of compensation
be enhanced.

6.

Learned
counsel
for
the
appellant/claimant
relying
on
the
judgment of the Honb'le Apex Court in
the case of Reshma Kumari and others
versus Madan Mohan and another;
(2013) 9 SCC 65 submitted that the
multiplier of 15 is liable to be applied in
the present case.

7. Per contra, learned counsel for the
respondent submitted that the deceased
was aged about 14 years, as such, he was
minor at the time of death. Therefore the
notional income of Rs. 15,000/- has
rightly been assessed and the multiplier
has rightly been applied on the age of the
father. However, relying on the judgment
of this Court in the case of Khalil Ahmad
and another versus Jitendra Bhushen
Pandey and another; F.A.F.O. No.377 of
2001 and Om Prakash Verma versus
Smt. Krishna Goel; F.A.F.O. No.285 of
2009 submitted that the appellant is
entitled only for a fixed compensation of

8. I have considered the submission
of learned counsel for the parties and
perused the records.

9. The deceased Ashish Kumar and
one Radheylal were going back from
Mela in Achalganj on 19.08.2001 at about
5:00 p.m. from a Vikram. When they
stepped down from the Vikram near
Mawaiya Minor Puliya,Jeep No. 78AT
1182 which was coming from the side of
Unnao towards Achalganj smashed the
deceased Ashish Kumar, the son of the
claimant who died on the same day in the
Sadar Hospital, Unnao. On account of the
death in the accident, the claim petition
was filed which has been allowed partly
by the claims tribunal. The factum of
accident has not been disputed by
anybody and the instant appeal has been
filed only for enhancement of the amount
of compensation.

10. Admittedly, the deceased was
aged about 14 years at the time of
accident.
The
learned
Tribunal has
assessed the notional income of the
deceased as Rs.15,000/- as no evidence
was adduced in regard to the income of
the deceased. The income has been
determined on the basis of Second
Schedule of Section 163-A of the Motor
Vehicles Act because nothing has been
brought on record nor any evidence was
adduced in regard to the income of the
deceased or about the career of the
deceased. Therefore the income has
rightly been determined on the basis of
the second schedule. The case of Kishan
Gopal and another versus Lala(supra) is
not
applicable
on
the
facts
and
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances of the present case because
in that case the deceased was assisting the
appellants in their agricultural occupation
while in the present case the deceased was
doing nothing.

11. The learned Tribunal has allowed
the mulitplier of 5 considering the age of
father of the deceased while as per settled
proposition of law it should be applied on the
basis of the age of the deceased. In the case of
National Insurance Company Ltd. versus
Pranay Sethi and others; (2017) 16 SCC 680
in paragraph 59.7 and M/s Royal Sundaram
Alliance Insurance Company Limited versus
Mandala Yadagiri Goud and others; (2019)
5 SCC 554, the Hon'ble Apex Court has held
that the multiplier should be applied on the
age of the deceased.

12. The deceased was aged 14 years
of age at the time of accident. Therefore
the question arises as to what multiplier
should be applied because the Hon'ble
Apex Court in the case of Sarla
Verma(Smt.) and others versus Delhi
Transport Corporation and another;
2009 6 SCC 121 has provided the
multiplier in paragraph 42 from the age of
15 years. The Hon'ble Apex Court in the
case of Reshma Kumar and ohters versus
Madan Mohan (supra) has held in
paragraph 43.2 that in cases where the age
of the deceased is upto 15 years,
irrespective of Section 166 or Section
163-A under which the claim for
compensation has been made, multiplier
of 15 and the assessment as indicated in
the Second Schedule subject to correction
as pointed out in Column (6) of the Table
in Sarla Verma should be followed. The
paragraph 43.2 is reproduced as under:-

"43.2 In cases where the age of
the deceased is upto 15 years, irrespective
of Section 166 or Section 163-A under
which the claim for compensation has
been made, multiplier of 15 and the
assessment as indicated in the Second
Schedule subject to correction as pointed
out in Column (6) of the Table in Sarla
Verma should be followed."

13. In view of above this Court is of
the view that the multiplier of 15 is to be
applied in the present case in place of 5.

14. So far as the future prospects are
concerned the learned Tribunal has
allowed Rs. 2,000 towards the funeral
expenses and Rs. 3.000/ towards the loss
of consortium, while the Hon'ble Apex
Court in the case of National Insurance
Company Ltd. versus Pranay Sethi and
others (supra) has allowed Rs.15,000/-
Rs.40,000/- and Rs. 15,000/- towards loss
of estate, loss of consortium and funeral
expenses under the conventional heads.
The Hon'ble Apex Court in the case of
Kishan Gopal and another versus Lala
and others(supra) has allowed Rs. 50,000
towards the conventional heads in case of
accident on 19.04.1992 in which the
parents had lost their son at the age of 10
years. In the present case the accident had
occurred on 19.08.2001. Therefore this
Court is of the considered view that the
appellants are entitled for Rs.15,000/-,
Rs.40,000/- and Rs.15,000/- under the
conventional heads in view of National
Insurance Company Ltd. versus Pranay
Sethi and others(supra) in place of
Rs.2000/- and Rs.3,000/-.

15. On the basis of above, this Court
is of the considered opinion that the
compensation determined by the learned
Tribunal
is
insufficient
and
the
assessment should be made on the basis
of notional income of Rs.15,000/- and
2 All. Kedar Vs Radha Krishna Mahavidyalaya Sunderpur & Anr.
1033
applying the multiplier of 15 alongwith
the amount under the conventional heads
as
indicated
above.
Therefore
the
judgment and award passed by the learned
Tribunal is liable to be modified and the
appellant/ claimant is held entitled to a
compensation which is calculated as
follows:.

1
Income
Rs.15,000/-
2
After deduction @ 1/3rd Rs.10,000/-
3
Multiplier(15);10,000/-
x15
Rs.1,50,000
/-
4
Loss of estate
Rs.15,000/-
5
Loss of consortium
Rs.40,000/-
6
Funeral expenses
Rs.15,000/-

Total (3+4+5+6)
Rs.2,20,000
/-

16. In view of above, the F.A.F.O
No.16 of 2004: Gaya Prasad versus Smt.
K. Trivedi and another is partly allowed
and
judgment
and
award
dated
07.10.2003 passed by Additional District
Judge, Court No.9/ Motor Accident Claim
Tribunal
in
Motor
Accident
Claim
Petition No. 259 of 2001(Gaya Prasad
versus Smt. K. Trivedi and another)
stands modified to the extent indicated
above in paragraph 15. The appellants are
entitled for Rs.2,20,000/- as compensation
alongwith interest at the rate of 8% per
annum awarded by the Tribunal, which
shall be paid by the respondents after
adjusting the amount paid, if any, within a
period of two months from today.

17. No order as to costs.

18. Office is directed to remit the
lower court record to the concerned
Tribunal forthwith within a period of four
weeks.
----------

(2019)10ILR A 1033

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2019

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Matter Under Article - 227 No. 5239 of 2019

Kedar ...Petitioner
Versus
Radha Krishna Mahavidyalaya
Sunderpur & Anr. ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Pandey

Counsel for the Respondents:
Sri Jai Prakash Rai

A. Family Courts Act- Section 7(1) -
Specific Relief Act- Section 34 - Code of
Civil Procedure - Section 9- The issue as to
whether defendant No.3 is son of Bhairam or
Vishwanath would not fall within the realm of
the jurisdiction of Family Courts, which are
courts of limited jurisdiction. The relief sought
would fall under the ambit of Section 34 of the
Specific Relief Act, well within the domain of
ordinary civil courts. The impugned judgment
passed by the appellate court is accordingly
set aside. The matter is remitted to the
appellate court for deciding the appeal afresh
based on its merits in light of the observations
made above. (Para 7,8, 10 & 11)

Writ Petition allowed in part (E-8)

List of Cases Cited: -

1. Samar Kumar Roy vs. Jharna Bera, (2017) 9
SCC 591