# Hamidunnisha & Ors v. U.P.S.R.T.C. & Ors

- **Citation:** (2023) 7 ILRA 228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-28
- **Case number:** FAFO No. 1326 of 2003
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hamidunnisha-ors-v-u-p-s-r-t-c-ors-50412
- **Pages:** 15

## Headnote

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation- The claimants are seven in
number-
Out
of
the
claimants,
the
deceased's widow is major whereas the
six children are all minors. Applying Rule
220-A (2) (iii) of the U.P. Motor Vehicles
Rules,
1998-
each
child
would
be
7 All. Hamidunnisha & Ors. Vs. U.P.S.R.T.C. & Ors.
229
considered half a unit- the six children
would reckon for three dependents-Thus,
the widow and the six minor children
would
constitute
a
total
of
four
dependents- As per rule laid down in
Sarla Verma Case the claimants are
entitled to be placed in the bracket of
dependent family members being 4-6-The
rule in Sarla Verma aforesaid sanctions a
deduction
of
one-fourth
where
the
number of dependent family members are
4-6. The finding of the Tribunal, directing
deduction of a one-third of the deceased's
income
towards
personal
and
living
expenses, is, therefore, erroneous-The
Tribunal has adopted a multiplier of '16'.
According to the table in Paragraph No.40
of the report in Sarla Verma for the age
group 36-40 years, the multiplier to be
adopted is '15'; not '16- Thus, the total
compensation would be Rs. 9,17,500/- -
The impugned award passed by the
Tribunal is modified and the compensation
awarded and payable by the owner is
enhanced
to
Rs.
4,587,50/-
after
deducting 50% of the compensation
apportioned to the share of the UPSRTC
settled in the Lok Adalat.(Para 1 to 28 )

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,996 of 49,152. This is a partial read: ask again with offset=39996 for what follows._

228 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

31. Upon an application of Rule 220A(3) of the Rules of 1998 to the facts here,
the claimant being aged 47 years, that is to
say, in the age bracket of 40-50 years, an
addition of 30% towards future prospects to
his lost income has to be made.

32. The compensation is, accordingly,
revised and enhanced in the following
manner:

(i)
Expenses
relating
to
treatment,
hospitalization
and
medicines
=
35149
(ii)
Compensation
for
nourishing
food
and
attendant charges
=
20000
(iii)
Loss of earning during
period of treatment (one
year) = 5000x12
=
60000
(iv)
Loss of future earnings
on
account
of
permanent
disability
(monthly income x 12 x
applied multiplier)
= 2500x12x13
=
39000
0
(v)
Lost income + 30%
towards
future
prospects
=
390000+117000
=
50700
0
(vi)
Damages
for
pain,
suffering and trauma
=
15000
0
The
total
compensation
would therefore, work out to
=
77214
9
a
figure
of
Rs.35149+20000+60000+507
000 + 150000

33. In the result, this appeal is
allowed in part. The impugned award
passed by the Tribunal is modified and the
compensation
awarded
enhanced
to
Rs.7,72,149/-. The aforesaid sum of money
shall carry simple interest at the rate of 7%
per annum from the date of institution of
the claim petition, until realization. Any
sum of money already deposited with the
Tribunal by the Insurers, pursuant to the
impugned award, shall be adjusted. Costs
easy.
----------
(2023) 7 ILRA 228
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.04.2023

BEFORE

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

FAFO No. 1326 of 2003

Hamidunnisha & Ors. ...Appellants
Versus
U.P.S.R.T.C. & Ors. ...Respondents

Counsel for the Appellants:
Sri Sharve Singh, Sri Sharve Singh

Counsel for the Respondents:
Smt. Seema Mishra, Sri Ashok Kumar
Jaiswal, Sri Sunil Kumar Mishra, Sri
Siddharth Jaiswal

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation- The claimants are seven in
number-
Out
of
the
claimants,
the
deceased's widow is major whereas the
six children are all minors. Applying Rule
220-A (2) (iii) of the U.P. Motor Vehicles
Rules,
1998-
each
child
would
be
7 All. Hamidunnisha & Ors. Vs. U.P.S.R.T.C. & Ors.
229
considered half a unit- the six children
would reckon for three dependents-Thus,
the widow and the six minor children
would
constitute
a
total
of
four
dependents- As per rule laid down in
Sarla Verma Case the claimants are
entitled to be placed in the bracket of
dependent family members being 4-6-The
rule in Sarla Verma aforesaid sanctions a
deduction
of
one-fourth
where
the
number of dependent family members are
4-6. The finding of the Tribunal, directing
deduction of a one-third of the deceased's
income
towards
personal
and
living
expenses, is, therefore, erroneous-The
Tribunal has adopted a multiplier of '16'.
According to the table in Paragraph No.40
of the report in Sarla Verma for the age
group 36-40 years, the multiplier to be
adopted is '15'; not '16- Thus, the total
compensation would be Rs. 9,17,500/- -
The impugned award passed by the
Tribunal is modified and the compensation
awarded and payable by the owner is
enhanced
to
Rs.
4,587,50/-
after
deducting 50% of the compensation
apportioned to the share of the UPSRTC
settled in the Lok Adalat.(Para 1 to 28 )

The appeal is partly allowed. (E-6)

List of Cases cited:

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

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

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

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

5. Meena Pawaia & ors. Vs Ashraf Ali & ors.
(2021) SCC OnLine SC 1083
6. Gyan Chand Jain & ors. Vs Permanand & ors.
(2003) 1 TAC 490

7. Sarla Verma(Smt.) & ors. Vs DTC (2009) 6
SCC 121
8. `Magma General Ins. Co. Ltd. Vs Nanu Ram
@ Chuhru Ram & ors. (2018) 18 SCC 130

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

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

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

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

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

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

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

1. This is a claimants' appeal arising
out of a judgment and award of Mr. S.C.
Bose, District Judge of Allahabad, sitting
as the Motor Accident Claims Tribunal,
dated 6th January, 2003 passed in Motor
Accident Claims Petition No.411 of 1999.
The claimants seek enhancement of the
compensation awarded.

2. Insanul Haq, the deceased was
travelling on board Jeep No. UP-70N-7479
on 13.04.1999. At about 7:30 p.m., near a
certain Village Gansiari within the local
limits of Police Station Mau Aima, District
Allahabad (now Prayagraj), a Bus bearing
registration No. UGH-471, owned by the
Uttar
Pradesh
State
Road
Transport
Corporation (for short, 'the UPSRTC'), that
was
proceeding
from
Allahabad
to
Ayodhya, hit the Jeep. In consequence of
the
accident,
Insanul
Haq
sustained
injuries, leading to his death. The Jeep
aforesaid, whereon Insanul Haq was
travelling, was owned by one Alok Pandey
230 INDIAN LAW REPORTS ALLAHABAD SERIES
and insured by the Oriental Insurance
Company, Allahabad. The claimants are
seven in number, to wit, Hamidunnisa
(wife) aged about 40 years, Tito (son) aged
about 16 years, Gulzar (son) aged about 15
years, Resham (daughter) aged about 12
years, Sarwar (son) aged about 9 years,
Gulsher (son) aged about 5 years and
Kulsum (son) aged about 7 years.

3. It is the claimants' case that the
deceased was a power loom mechanic and
himself the owner of a power loom. His
income was Rs.5000/- per month. All the
claimants
were
dependent
upon
the
deceased's income. The claimants have,
therefore, demanded a compensation in the
sum of Rs.10,00,000/-.

4. A separate written statement each
was filed on behalf of the UPSRTC, the
owner of the ill-fated Jeep, Alok Pandey
and the Oriental Insurance Company, who
are the Insurers of the Jeep. The owner of
the Jeep and the Insurers shall hereinafter
referred to as 'the owner' and 'the Insurers',
respectively.

5. The UPSRTC broadly took a
stand that the accident happened on
account of the Jeep driver's negligence,
whereas the owner took a stand that the
accident occurred due to the rash and
negligent driving by the Bus driver. It
was also urged that on the date of
accident, the ill-fated Jeep was validly
insured with the Insurers. The Insurers
did a wholesome and inconsistent denial
of everything that was urged to hold
them liable. They denied insuring the illfated Jeep, the accident between the
UPSRTC Bus and the ill-fated Jeep, and
also the fact that the driver held a valid
driving
licence.
In
substance,
the
Insurers
denied
their
liability
to
indemnify
the owner of
the
Jeep
regarding any liability, that may be
apportioned to him.

6. On the pleadings of parties, the
following issues were framed (translated
into English from Hindi):

"1. Whether on 13.04.1999, at
about 7:30 in the evening hours, the
alleged accident happened on account of
rash and negligent driving of Jeep No.
UP-70N-7479?

2.
Whether
the
alleged
accident, involving Jeep No. UP-70N7479 and Bus No. UGH-471, happened
due to the contributory negligence of
both the vehicles? If yes, which vehicle
is at fault and to what extent?

3. Whether Jeep No. UP-70N7479 is owned by Alok Pandey and
insured with the Oriental Insurance
Company?

4. Whether on the date of the
accident, the driver had a valid driving
licence?

5. Whether Jeep No. UP-70N7479 was being operated in accordance
with law, rules and its registration?

6. Whether the claimants are
entitled to compensation? If yes, how much
and from which of the parties?

7.
To
what
relief
are
the
claimants entitled?"

7. The Tribunal dealt with Issues Nos.
1 and 2 together and held that both the Bus
and
the
ill-fated
Jeep
had
equal
contributory negligence in the accident.
Issue No.3 was answered in favour of the
owner and the claimants holding that the
ill-fated Jeep was owned by the owner and
validly insured with the Insurers. This issue
was answered in this manner by the
Tribunal on the Insurers' admission. Issue
7 All. Hamidunnisha & Ors. Vs. U.P.S.R.T.C. & Ors.
231
No.5 was decided in the manner that the illfated Jeep was held registered in the
owner's name as a vehicle for personal use.
There is a further finding that on the date of
accident, the ill-fated Jeep was being used
to carry passengers. It was, therefore, held
on this Issue in conclusion that the ill-fated
Jeep was not being operated in accordance
with its registered use. In answering Issue
No.4, the Tribunal held that according to
the evidence on record, the driver of the illfated Jeep, Shiv Shankar had a valid
driving licence with him, which was valid
for driving a private vehicle alone. The
licence was not endorsed for driving a
commercial vehicle carrying passengers.
Issues Nos.6 and 7 were taken up together.
The claimants were held entitled to
compensation on account of Insanul Haq's
death.

8. The Tribunal held that though the
claimants said that the deceased was a
power loom mechanic, who owned a power
loom, yielding an income of Rs.5000/- per
month, but there is no proof of the
deceased's income or his ownership of the
power loom, that were claimed for him. It
was noted that no proof was offered
regarding the said fact by the claimants. It
has been remarked that the fact that the
deceased was a power loom mechanic has
not been specifically denied as well by the
other side. It has been observed by the
Tribunal that the deceased, who was found
to be aged 40 years, considering his age
group and capability to work, must be
credited with a minimum monthly income
of Rs.3000/-. It is on this basis that the
Tribunal proceeded to work out the
claimants' dependency.

9. The Tribunal ordered deduction of a
one-third out of the deceased's income
towards his personal and living expenses.
Accordingly, the monthly income of the
deceased available for the purpose of
working out dependency was held to be
Rs.2000/-. Considering the age of the
deceased, a multiplier of '16' was adopted. On
the aforesaid basis, a total substantive
dependency of Rs.3,84,000/- was determined
by the Tribunal, to which the claimants were
held entitled. On the said sum of money,
interest was directed to be paid @ 10% per
annum with effect from the date of institution
of the claim. The Tribunal has taken note of
the fact that the claimants have entered into a
settlement with the UPSRTC in the Lok
Adalat held on 04.03.2001, and, accepted in
compensation, a total sum of Rs.60,000/- in
liquidation of all their claims against the
UPSRTC. It was, accordingly, held that there
was nothing payable to the claimants by the
UPSRTC.

10. The Tribunal has gone on to hold
that after receiving Rs.60,000/- from the
UPSRTC out of the total compensation of
Rs.3,84,000/- payable, 50% would be
deducted from the said sum of money,
entitling the claimants to a sum of
Rs.1,92,000/- in compensation, payable by
the owner. The Insurers were discharged on
ground that there was a breach of policy. The
Tribunal has apportioned compensation,
amongst the various claimants, with the
largest sum of Rs.42,000/- being directed to
be paid to the widow, Smt. Hamidunnisha.

11. Heard Mr. Sharve Singh, learned
Counsel for the claimants, Mr. Siddharth
Jaiswal, Advocate holding brief of Mr.
Ashok Kumar Jaiswal, learned Counsel for
the Insurers and Mr. Sunil Kumar Mishra,
learned Counsel appearing on behalf of the
UPSRTC. No one appeared on behalf of
the owner, though the name of Ms. Seema
Misra, Advocate is printed in the cause
list.
232 INDIAN LAW REPORTS ALLAHABAD SERIES

12. It is argued by the learned
Counsel for the claimants that the principle
of contributory negligence in this case is
not applicable, because it is a case of
composite negligence. The claimants are
free to recover from either of the two
vehicles notwithstanding the finding of
contributory negligence apportioning a
50% liability. It is next submitted that
breach of condition of the insurance policy
that the Tribunal has found on account of
the driving licence of the driver of the illfated Jeep not being endorsed for driving a
commercial passenger vehicle, would not
entitle the Insurers to an all out exoneration
on the policy. Instead, it would give the
Insurers a right to recover after paying off
the claimants. The claimants have also
criticized the Tribunal's finding in holding
the deceased's income to be a sum of
Rs.3000/- per month, ignoring evidence
about his income. It is also said that the
Tribunal has not taken into account future
prospects of the deceased. The deduction
towards
personal
expenses
has
been
criticized as one much on the higher side. It
is also urged that the Tribunal has failed to
award anything toward loss of love and
affection, besides funeral expenses.

13. The learned Counsel appearing for
the UPSRTC says that they are not liable to
pay anything to the claimants towards the
enhanced compensation, inasmuch as the
claimants
have
accepted
a
sum
of
Rs.60,000/- on 04.03.2001 before the Lok
Adalat in complete settlement of their
claim against the UPSRTC.

14. The learned Counsel for the
Insurers, on the other hand, has argued that
the Jeep driver's licence being one for a
private
vehicle
alone,
without
any
endorsement for driving a commercial
vehicle, there is a fundamental breach of the
policy, entitling the Insurers to complete
exoneration, as ordered by the Tribunal.

15. This Court has considered the
submissions advanced on behalf of both
sides. It is to be noticed that there is no
appeal, either by the owner or the Insurers. It
is true that so far as the claimants are
concerned, it is a case of composite
negligence, because the deceased was on
board one of the vehicles, that has been found
to have contributed to the negligence leading
to the accident. The claimants are free to
recover from any of the parties found to be in
contributory
negligence.
The
issue
of
apportionment of negligence and a fortiori
the liability to pay compensation is a matter
inter se the owner and the Insurers on one
hand and the UPSRTC on the other. It is not
an issue in this appeal at all.

16. What is different in this case is that
the rights of the claimants have nevertheless
been split into two parts, to wit, one part
against the owner and the Insurers and the
other against the UPSRTC. There is on
record a compromise inter se the claimants
and the UPSRTC dated 04.03.2001 filed
before the Lok Adalat, which has been
accepted on the same day by the Lok Adalat.
The terms of the settlement before the Lok
Adalat show that the claimants have
compromised
their
claim
against
the
UPSRTC for a sum of Rs.60,000/- in all. The
aforesaid compromise between the claimants
and the UPSRTC is on record as paper
No.14-Ga, on the reverse of which is the
order passed by the Lok Adalat. The result is
that the present appeal by the claimants for
enhancement is confined to their claim
against the owner and the Insurers.

17. This Court is of opinion that the
Tribunal having returned a finding of
contributory negligence to the extent of
7 All. Hamidunnisha & Ors. Vs. U.P.S.R.T.C. & Ors.
233
50% each between the ill-fated Jeep and the
UPSRTC Bus, it is difficult to disturb that
finding in the absence of any positive
evidence brought to the notice of this Court
by the claimants to show that it was a
different percentage of negligence on the
part of the ill-fated Jeep's driver or it was
cent per cent his fault. Even otherwise, it
would now not be open to disturb that
finding, because on the foot of it the
claimants have settled the matter with the
UPSRTC before the Lok Adalat. The
claim, therefore, that now proceeds is
confined to the owner and the Insurers.

18.

Whatever
enhancement
of
compensation is granted by this Court, if at
all, the same would be limited to 50% of
the determination, the other 50% having
been settled in terms of the compromise
with the UPSRTC.

19. The next question which arises is
whether the Insurers have rightly been
discharged of their liability by the Tribunal
or is it a case where the Insurers ought to
be saddled with the liability of making
good the compensation awarded with a
right to recover from the owner. It is true
that the driving licence held by the driver
of the ill-fated Jeep was a licence to drive a
motorcycle and a light motor vehicle,
which authorizes a person to drive a private
vehicle. It was not endorsed by the
Licensing
Authority
authorizing
the
licensee to drive a commercial light motor
vehicle, carrying passengers.

20. The Tribunal has recorded a
finding that the facts and evidence on
record show that the ill-fated Jeep was
carrying gratuitous passengers, though
there is nothing expressly said in the
affidavit of Hamidunnisha, that has been
filed in lieu of the claimant's examinationin-chief, that the deceased boarded the
vehicle after paying some kind of a fare.
This Court is inclined to agree with the
Tribunal on this issue. The reason is that
apparently the owner has not raised a
specific plea in the written statement that
he
was
carrying
passengers,
nongratuitously or introducing circumstances
to show some kind of a personal
relationship between the deceased or his
family and the owner. The Jeep was full of
passengers unrelated to the owner from
which a presumption about gratuitous
carriage of passengers must be raised.
There is nothing on record to rebut the
presumption that the passengers on board
the ill-fated Jeep, none of whom appear to
be related to the owner or his acquaintances
or friends, were gratuitous. The Jeep was
clearly being plied as a passenger vehicle
for hire.

21. The Court's inference in this
regard must also rest on judicial notice of
the reputed fact that vehicles of this type
are invariably used as passenger vehicles
for hire, though registered as private ones.
The Court, therefore, finds that while the
driver of the Jeep may not be holding a
valid licence, authorizing him to drive
passenger vehicles used for commercial
purposes,
the
ill-fated
Jeep
was
nevertheless insured by the Insurers. At the
same time, the driving licence not being
one which was endorsed to drive a
commercial or passenger vehicle, there is a
breach of the insurance policy entitling the
Insurers to exoneration from their liability
to substantively indemnify in terms of the
policy. But, they ought to be directed to
pay the claimants and recover from the
owner.

22. In Shamanna and another v.
Divisional Manager, Oriental Insurance
234 INDIAN LAW REPORTS ALLAHABAD SERIES
Company Limited and others, (2018) 9
SCC 650, the relevant facts were that the
deceased was travelling by a Jeep,
negligently driven by its driver. The door
of the vehicle suddenly opened and the
deceased was thrown out of the vehicle
leading to his death. The deceased was a
young man and his parents claimed
compensation.
The
Tribunal
awarded
compensation with a direction to pay and
recover since the Jeep driver had no valid
driving
licence,
when
the
accident
happened. On an appeal by the Insurance
Company and by the claimants as well, the
High Court enhanced the compensation,
but set aside the direction to pay and
recover. It was in those circumstances that
on the claimants' appeal by special leave,
the Supreme Court after referring to the
decision in National Insurance Co. Ltd. v.
Swaran Singh, (2004) 3 SCC 297 held in
Shamanna (supra):

"11. In the present case, to deny
the benefit of "pay and recover", what
seems to have substantially weighed with
the High Court is the reference to larger
Bench made by the two-Judge Bench in
National Insurance Co. Ltd. v. Parvathneni
[National
Insurance
Co.
Ltd.
v.
Parvathneni, (2009) 8 SCC 785 : (2009) 3
SCC (Civ) 568 : (2009) 3 SCC (Cri) 943]
which doubted the correctness of the
decisions which in exercise of jurisdiction
under Article 142 of the Constitution of
India directing insurance company to pay
the compensation amount even though
insurance company has no liability to pay.
In Parvathneni case [National Insurance
Co. Ltd. v. Parvathneni, (2009) 8 SCC 785
: (2009) 3 SCC (Civ) 568 : (2009) 3 SCC
(Cri) 943] , the Supreme Court pointed out
that Article 142 of the Constitution of India
does not cover such type of cases and that :
(SCC p. 786, para 5)

"5. If the insurance company has
no liability to pay at all, then, it cannot be
compelled by order of the court in exercise
of its jurisdiction under Article 142 of the
Constitution
of
India
to
pay
the
compensation amount and later on recover
it from the owner of the vehicle."

12. The above reference in
Parvathneni case [National Insurance Co.
Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC
(Cri) 943] has been disposed of on 17-92013 [National Insurance Co. Ltd. v.
Parvathneni, (2018) 9 SCC 657] by the
three-Judge Bench keeping the questions of
law open to be decided in an appropriate
case.

13. Since the reference to the
larger
Bench
in
Parvathneni
case
[National
Insurance
Co.
Ltd.
v.
Parvathneni, (2009) 8 SCC 785 : (2009) 3
SCC (Civ) 568 : (2009) 3 SCC (Cri) 943]
has been disposed of by keeping the
questions of law open to be decided in an
appropriate case, presently the decision in
Swaran Singh case [National Insurance
Co. Ltd. v. Swaran Singh, (2004) 3 SCC
297 : 2004 SCC (Cri) 733] followed in
Laxmi Narain Dhut [National Insurance
Co. Ltd. v. Laxmi Narain Dhut, (2007) 3
SCC 700 : (2007) 2 SCC (Cri) 142] and
other cases hold the field. The award
passed by the Tribunal directing the
insurance
company
to
pay
the
compensation amount awarded to the
claimants and thereafter, recover the same
from the owner of the vehicle in question, is
in accordance with the judgment passed by
this Court in Swaran Singh [National
Insurance Co. Ltd. v. Swaran Singh, (2004)
3 SCC 297 : 2004 SCC (Cri) 733] and
Laxmi Narain Dhut [National Insurance
Co. Ltd. v. Laxmi Narain Dhut, (2007) 3
SCC 700 : (2007) 2 SCC (Cri) 142] cases.
While so, in our view, the High Court ought
7 All. Hamidunnisha & Ors. Vs. U.P.S.R.T.C. & Ors.
235
not to have interfered with the award
passed by the Tribunal directing the first
respondent to pay and recover from the
owner of the vehicle. The impugned
judgment [Shamanna v. Laxman, 2016 SCC
OnLine Kar 6928] of the High Court
exonerating the insurance company from
its liability and directing the claimants to
recover the compensation from the owner
of the vehicle is set aside and the award
passed by the Tribunal is restored.

14. So far as the recovery of the
amount from the owner of the vehicle, the
insurance company shall recover as held in
the decision in Oriental Insurance Co. Ltd.
v. Nanjappan [Oriental Insurance Co. Ltd.
v. Nanjappan, (2004) 13 SCC 224 : 2005
SCC (Cri) 148] wherein this Court held
that : (SCC p. 226, para 8)

"8. ... For the purpose of recovering
the same from the insured, the insurer shall not
be required to file a suit. It may initiate a
proceeding before the executing court concerned
as if the dispute between the insurer and the
owner was the subject-matter of determination
before the Tribunal and the issue is decided
against the owner and in favour of the insurer."

23. Therefore, this Court is of opinion that
whatever liability is found for the owner, the
Insurers would be liable to make good the
compensation awarded and recover the same
from the owner through an application made to
the Tribunal.

24. This spares for the Court the question
whether
compensation
has
been
validly
determined by the Tribunal. The claimants have
sought
enhancement
and
say
that
the
compensation as assessed is far on the lower
side. They say, it is against the settled principles.

25. The foremost fact in order to out
work the compensation is the monthly
income of the deceased. The Tribunal has
considered the deceased to be a productive
person with some kind of a capability to
earn his livelihood. His age has also been
considered to be one which would enable
him to earn his livelihood. The Tribunal
has taken note of the circumstances about
the deceased being said to be a power loom
mechanic, a fact that has not been denied
by the other side. The case about the
deceased being the owner of a power loom
has, however, been disbelieved for want of
evidence. In the totality of circumstances,
the Tribunal has determined for the
deceased a monthly income of Rs.3000/-.
We are in agreement with the aforesaid
assessment made by the Tribunal.

26. The deceased had an income of
Rs.3000/- per month and a fortiori an
income of Rs.36,000/- per annum. Given
the fact that his dependents are seven in
number, all of whom are the claimants,
deduction towards personal and living
expenses
would
have
to
be
made
accordingly.

27. Out of the claimants, the
deceased's widow is major whereas the six
children are all minors. Applying Rule 220A (2) (iii) of the U.P. Motor Vehicles
Rules, 1998 (for short, the Rules of 1998),
each child would be considered half a unit,
and, therefore, the six children would
reckon for three dependents. Thus, working
it out, the widow and the six minor children
would constitute a total of four dependents.
In accordance with rule laid down in
Paragraph No.30 of Sarla Verma (Smt) v.
Delhi
Transport
Corporation
and
another, (2009) 6 SCC 121, the claimants
are entitled to be placed in the bracket of
dependent family members being 4-6. The
rule in Sarla Verma (supra) aforesaid
sanctions a deduction of one-fourth where
the number of dependent family members
236 INDIAN LAW REPORTS ALLAHABAD SERIES
are 4-6. The finding of the Tribunal,
directing deduction of a one-third of the
deceased's income towards personal and
living expenses, is, therefore, erroneous.

28. The Tribunal has adopted a
multiplier of '16'. According to the table in
Paragraph No.40 of the report in Sarla
Verma for the age group 36-40 years, the
multiplier to be adopted is '15'; not '16'.

29. The claimants are also entitled to
addition of future prospects, which are no
longer the preserve of the service class.
These are also to be extended to the selfemployed or those working on a fixed
salary going by the principle laid down by
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
7 All. Hamidunnisha & Ors. Vs. U.P.S.R.T.C. & Ors.
237
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 self-employed 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. 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."

30. The next point to be considered is
whether future prospects, to which the
claimants are entitled, would be governed
by the law laid down in Pranay Sethi or
Rule 220-A (3) of the U.P. Motor Vehicles
Rules, 1998 (for short, the Rules of 1998).
This issue is no longer res integra in view
of the decision of the Supreme Court in
New India Assurance Co. Ltd v. Urmila
Shukla and others, 2021 SCC OnLine SC
822, where it was observed:

"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.T he 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
238 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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."

31. It still remains to be examined
whether Rule 220-A(3) of the Rules of
1998, introduced by Notification No.
777/XXX-4-2011-4(3)-2010
dated
26th
September, 2011 i.e. The Uttar Pradesh
Motor Vehicles (Eleventh Amendment)
Rules, 2011, would apply retrospectively to
an accident that took place prior to the
amendment. The issue was answered by a
Division Bench 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 was 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. Hamidunnisha & Ors. Vs. U.P.S.R.T.C. & Ors.
239

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."

32. The law laid down by the
Division Bench in Sushil Kumar (supra)
binds this Court and computation of future
prospects is, therefore, to be made in
accordance with the Rule 220-A(3) of
Rules, 1998, even though the accident
happened long before the amendment. Rule
220-A(3) stipulates that where the age of
the deceased is less than 40 years, 50% is
to be added to his/ her income towards
future prospects.

33. There is an issue further raised
about non-grant of any compensation by
the Tribunal under the conventional heads.
Here again, the law down in Pranay Sethi
is eloquent, where it has been observed:

"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. As far as multiplier or
multiplicand is concerned, the same has
been put to rest by the judgments of this
Court. Para 3 of the Second Schedule also
provides for general damages in case of
death. It is as follows:

"3. General damages (in case of
death):

The following general damages
shall
be
payable
in
addition
to
compensation outlined above:

(i)
Funeral expenses
Rs 2000
(ii)
Loss of consortium,
if beneficiary is the
spouse
Rs 5000
(iii)
Loss of estate
Rs 2500
(iv)
Medical expenses -
actual
expenses
incurred
before
death supported by
bills/vouchers
but
not exceeding
Rs
15,000"

50. On a perusal of various
decisions of this Court, it is manifest that
the Second Schedule has not been followed
starting from the decision in Trilok
Chandra [UP SRTC v.Trilok Chandra,
240 INDIAN LAW REPORTS ALLAHABAD SERIES
(1996) 4 SCC 362] and there has been no
amendment to the same. The conventional
damage amount needs to be appositely
determined.