# Hansnath Yadav & Ors v. U.P.S.R.T.C

- **Citation:** (2014) 2 ILRA 655
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-29
- **Case number:** First Appeal From Order No. 539 of 2011
- **Bench:** Devi Prasad Singh, Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hansnath-yadav-ors-v-u-p-s-r-t-c-42885
- **Pages:** 11

## Headnote

Motor Vehicle Act, 1988-Section 173Appeal For enhancement of compensation
towards less of consortium by a house
hold women-in absence of direct evidenceincome can not be assessed less than
5000/-per month-accordingly applying 11
multiplier-held
proper-appeal
allowedcompensation enhanced from Rs. 2,29,500
to 6,30,000 with 9% interest.

Held: Para-15, 17

## Text

2 All] Hansnath Yadav & Ors. Vs. U.P.S.R.T.C.
655

9. List this appeal as peremptorily
on 3rd July, 2014 among top of the 5
cases.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.05.2014

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ASHWANI KUMAR MISHRA, J.

First Appeal From Order No. 539 of 2011

Hansnath Yadav & Ors. ...Appellants
Versus
U.P.S.R.T.C.. ...Respondent

Counsel for the Appellants:
Sri A.K. Jauhari

Counsel for the Respondent:
Sri Prabhakar Tewari

Motor Vehicle Act, 1988-Section 173Appeal For enhancement of compensation
towards less of consortium by a house
hold women-in absence of direct evidenceincome can not be assessed less than
5000/-per month-accordingly applying 11
multiplier-held
proper-appeal
allowedcompensation enhanced from Rs. 2,29,500
to 6,30,000 with 9% interest.

Held: Para-15, 17
15. Hon'ble Supreme Court while dealing
with the determination of income of a
skilled worker, in the context of current
scenario has determined minimum income
of a skilled worker as Rs.5000 to 6000/-
per month.

17. In the present case, the deceased
Smt. Rajmati Yadav was aged about 54
years and was performing the functions
of
skilled
worker/self-employed,
in
addition to her contribution to the family
as wife or mother, who died in the
accident occurred in the year 2002. Her
income in such circumstances could not
be assessed at less than Rs.5,000/- per
month.

Case Law discussed:
(2010) 3 TAC 769; (2013) 10 SCC 695; 2013
ACJ 2594; (2013) 9 SCC 54; Civil Appeal No.
10918 of 2013.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. The present appeal has been
preferred by the husband and his four sons,
challenging the award of Motor Accident
Claims Tribunal dated 17.2.2011 passed in
M.A.C.P. No. 533 OF 2003, awarding
Rs.2,29,500/- as compensation, on account
of death of Smt. Rajmati Yadav on
27.10.2002 and have sought enhancement of
compensation. The award of the tribunal has
been accepted by the respondent- UPSRTC
and no appeal has been preferred by it.

2. On 27.10.2002 at about 4.15 PM,
when the appellant no.1 along with his wife
Smt. Rajmati Yadav who was a pillion rider
on a scooter bearing registration no. UGD1598 was coming from Chinhat Bazar
towards his house, the driver of the
roadways bus bearing registration no. UP32 0077 dashed the scooter from behind due
to rash and negligent driving. On account of
that accident, the appellant no.1 and
deceased Smt. Rajmati Yadav sustained
serious injuries. When deceased was taken
to the medical college, she was declared to
be dead. Son of the appellant no.1, namely
Devendra Kumar Yadav, who was coming
behind the scooter, was present on the spot
and has seen the incident. He admitted his
father-mother in the hospital and on
28.10.2002 he informed in writing to the
police station Chinhat, upon which a first
information report was lodged. Claim under
section 166 of the Motor Vehicles Act was
656 INDIAN LAW REPORTS ALLAHABAD SERIES
raised by the husband and his four sons
against the respondent- UPSRTC with the
allegation that the deceased was a hale and
hearty lady, and was operating a PCO, by
which she earned Rs.2,500 per month.
Under
different
heads
amount
of
compensation of Rs.9,02,000/- was claimed.

3. The respondent- UPSRTC has
contested the claim and by filing written
objection it is stated that the accident in
question was not caused by its bus and the
claim has been raised only on the fake and
frivolous
facts
in
order
to
obtain
compensation and, therefore, the claim is
liable to be rejected.

4. The tribunal on the basis of
respective pleadings of the parties framed
four issues.

5. Issue no.1 was regarding the
question as to whether on 27.10.2002 at
about 4.15 PM at Saket Filling Centre in
front of Faizabad Road Lucknow, the driver
of roadways bus bearing registration no. UP32 0077 dashed the scooter from behind due
to rash and negligent driving, and on account
of which Smt. Rajmati Yadav, who was
sitting on the scooter, died due to injuries
sustained in the accident and Hansnath
Yadav sustained injuries. This issue was
decided by the tribunal and a finding was
returned that the death of the deceased Smt.
Rajmati Yadav was caused due to rash and
negligent driving of the roadways bus
bearing registration no.UP-32 0077 in the
manner, as claimed.

6. Issue no.3 was to the effect that
whether the claim petition is barred by the
provisions of rule 3(1) of the Motor
Accident Claims Tribunal, 1967. This
issue was considered and decided by the
tribunal in favour of the claimantsappellants. Issue no.2 & 4, regarding
entitlement of compensation of the
claimants, were answered by the tribunal
in favour of the claimants-appellants.

7. Claimants-appellants have not
produced any certificate regarding income
of the deceased at Rs.2,500/-. Tribunal
after assuming the income of the deceased
as being not less than Rs.100/- per day,
accepted the income of the deceased as
Rs.2500 per month. After appropriating
1/3rd towards her personal and living
expenses, the loss of dependency has been
determined as Rs.20,000/- per annum.
Since no evidence has been led or filed
regarding age of the deceased, tribunal
relying upon the postmortem report in
which age of the deceased was held to be
54 years, applied multiplier of 11. Loss of
dependency was fixed at Rs.2,20,000/-.
Further sum of Rs.5,000/- towards loss of
consortium, Rs.2,500 towards funeral
expenses and Rs.2,500/- towards loss of
estate, quantifying the total compensation
at Rs.2,29,500/-.

8. In the instant case, the deceased
was the wife of claimant-appellant no.1
and mother of four sons aged about 33,
30, 27 and 20 years respectively. The
question up for consideration is, as to how
the loss suffered due to death of deceased
who was epicenter of the entire family has
to be determined?

9. The tribunal has returned a
finding
that
the
claimants-appellants
2 All] Hansnath Yadav & Ors. Vs. U.P.S.R.T.C.
657
could not produce the income certificate
as claimed of Rs.2500/- per month. Even
the tribunal after assuming her income as
being not less than Rs.100 per day,
accepted her income of Rs.2500/- per
month.

10. In order to determine the claim
of compensation at the instance of
husband due to death of her wife,
different heads have been recognized by
law
which
includes
loss
of
wife,
contribution to household from her
earnings and other expenses likely to be
incurred for having the household run by
housekeeper
or
servant
apart
from
gratuitous services rendered to the house.
This issue has been dealt with extensively
by Hon'ble Supreme Court in its judgment
delivered in Arun Kumar Agrawal and
another v. National Insurance Company
and others reported in (2010) 3 TAC 769.
While dealing with this issue, following
observations were made in para 19, 23,
24, 27, 31, 32, 33 and 35, which are
reproduced:-

"19. We may now deal with the
question formulated in the opening
paragraph of this judgment. In Kemp and
Kemp on Quantum of Damages, (Special
Edition - 1986), the authors have
identified various heads under which the
husband can claim compensation on the
death of his wife. These include loss of
the wife's contribution to the household
from her earnings, the additional expenses
incurred or likely to be incurred by having
the household run by a house-keeper or
servant, instead of the wife, the expenses
incurred in buying clothes for the children
instead of having them made by the wife,
and similarly having his own clothes
mended or stitched elsewhere than by his
wife, and the loss of that element of
security provided to the husband where
his employment was insecure or his health
was bad and where the wife could go out
and work for a living.

23. In India the Courts have
recognised that the contribution made by
the wife to the house is invaluable and
cannot be computed in terms of money.
The gratuitous services rendered by wife
with true love and affection to the
children and her husband and managing
the household affairs cannot be equated
with the services rendered by others. A
wife/mother does not work by the clock.
She is in the constant attendance of the
family throughout the day and night
unless she is employed and is required to
attend the employer's work for particular
hours. She takes care of all the
requirements of husband and children
including cooking of food, washing of
clothes, etc. She teaches small children
and provides invaluable guidance to them
for their future life. A housekeeper or
maidservant can do the household work,
such as cooking food, washing clothes
and utensils, keeping the house clean etc.,
but she can never be a substitute for a
wife/mother who renders selfless service
to her husband and children.

24. It is not possible to quantify any
amount in lieu of the services rendered by
the wife/mother to the family i.e. husband
and children. However, for the purpose of
award of compensation to the dependents,
some pecuniary estimate has to be made
of the services of housewife/mother. In
that context, the term ''services' is required
to be given a broad meaning and must be
658 INDIAN LAW REPORTS ALLAHABAD SERIES
construed by taking into account the loss
of personal care and attention given by
the deceased to her children as a mother
and to her husband as a wife. They are
entitled to adequate compensation in lieu
of the loss of gratuitous services rendered
by the deceased. The amount payable to
the dependants cannot be diminished on
the ground that some close relation like a
grandmother may volunteer to render
some of the services to the family which
the deceased was giving earlier.

27. In A. Rajam v. M. Manikya
Reddy 1989 ACJ 542 (Andhra Pradesh
HC), M. Jagannadha Rao, J. (as he then
was) advocated giving of a wider meaning
to the word ''services' in cases relating to
award of compensation to the dependents
of a deceased wife/mother. Some of the
observations made in that judgment are
extracted below:

"The loss to the husband and
children consequent upon the death of the
housewife or mother has to be computed
by estimating the loss of 'services' to the
family, if there was reasonable prospect
of such services being rendered freely in
the future, but for the death. It must be
remembered that any substitute to be so
employed is not likely to be as
economical as the housewife. Apart from
the
value
of
obtaining
substituted
services,
the
expense
of
giving
accommodation or food to the substitute
must also be computed. From this total
must be deducted the expense the family
would have otherwise been spending for
the deceased housewife. While estimating
the ''services' of the housewife, a narrow
meaning should not be given to the
meaning of the word ''services' but it
should be construed broadly and one has
to take into account the loss of ''personal
care and attention' by the deceased to her
children, as a mother and to her husband,
as a wife. The award is not diminished
merely because some close relation like a
grandmother
is
prepared
to
render
voluntary services."

31. In Amar Singh Thukral v. Sandeep
Chhatwal (supra), the learned Single Judge
of Delhi High Court adopted the yardstick of
minimum rates of wages for the purpose of
award of compensation in the case of death
of a housewife and then proceeded to
observe ''since there is no scientific method
of assessing the contribution of a housewife
to her household, in cases such as the
present, resort should be had to the wages of
a skilled worker as per the minimum rates of
wages in Delhi. Although, this may sound
uncharitable, if not demeaning to a
housewife, there is hardly any option
available in the absence of statutory
guidelines'.

32. In our view, it is highly unfair,
unjust and inappropriate to compute the
compensation payable to the dependents
of a deceased wife/mother, who does not
have regular income, by comparing her
services with that of a housekeeper or a
servant or an employee, who works for a
fixed period. The gratuitous services
rendered by wife/mother to the husband
and children cannot be equated with the
services of an employee and no evidence
or data can possibly be produced for
estimating the value of such services. It is
virtually impossible to measure in terms
of money the loss of personal care and
attention suffered by the husband and
children on the demise of the housewife.
In its wisdom, the legislature had, as early
as in 1994, fixed the notional income of a
2 All] Hansnath Yadav & Ors. Vs. U.P.S.R.T.C.
659
non-earning person at Rs.15,000/- per
annum and in case of a spouse, 1/3rd
income of the earning/surviving spouse
for the purpose of computing the
compensation. Though, Section 163A
does not, in terms apply to the cases in
which claim for compensation is filed
under Section 166 of the Act, in the
absence of any other definite criteria for
determination of compensation payable to
the
dependents
of
a
non-earning
housewife/mother, it would be reasonable
to rely upon the criteria specified in
clause (6) of the Second Schedule and
then apply appropriate multiplier keeping
in view the judgments of this Court in
General Manager Kerala State Road
Transport
Corporation
v.
Susamma
Thomas (Mrs.) and others (supra), U.P.
S.R.T.C. v. Trilok Chandra (supra), Sarla
Verma (Smt.) and others v. Delhi
Transport Corporation and another (supra)
and also take guidance from the judgment
in Lata Wadhwa's case. The approach
adopted by different Benches of Delhi
High Court to compute the compensation
by relying upon the minimum wages
payable to a skilled worker does not
commend our approval because it is most
unrealistic to compare the gratuitous
services of the housewife/mother with
work of a skilled worker.

33. Reverting to the facts of this
case, we find that while in his deposition,
appellant No.1 had categorically stated
that the deceased was earning Rs.50,000/-
per annum by paintings and handicrafts,
the respondents did not lead any evidence
to controvert the same. Notwithstanding
this, the Tribunal and the High Court
altogether ignored the income of the
deceased. The Tribunal did advert to the
Second Schedule of the Act and observed
that the income of the deceased could be
assessed
at
Rs.5,000/-
per
month
(Rs.60,000/- per annum) because the
income of her spouse was Rs.15,416/- per
month and then held that after making
deduction, the total loss of dependency
could be Rs.6 lacs. However without any
tangible reason, the Tribunal decided to
reduce the amount of compensation by
observing that the deceased was actually
non-earning member and the amount of
compensation would be too much. The
High Court went a step further and
dismissed the appeal by erroneously
presuming that neither of the claimants
was dependent upon the deceased and the
services rendered by her could be
estimated as Rs.1250/- per month.

35. In the result, the appeal is
allowed. The impugned judgment as also
the award of the Tribunal are set aside and
it is held that the appellants are entitled to
compensation of Rs.6 lacs. Respondent
No.1 is directed to pay the said amount of
compensation along with interest at the
rate of 6% per annum from the date of
filing application under Section 166 of the
Act till the date of payment. The needful
shall be done within the period of 3
months
from
the
date
of
receipt/production of copy of this order.
The appellant shall get cost of Rs.50,000/-
."

11. One of the Hon'ble Judges, while
agreeing with the aforesaid gave separate
reasons, in para 23 and 28, which are
reproduced:-

"23. Admittedly, it has to be
recognized that the services produced in
660 INDIAN LAW REPORTS ALLAHABAD SERIES
the home by the women for other
members of the household are an
important
and
valuable
form
of
production. It is possible to put monetary
value to these services as for instance, the
monetary value of cooking for family
members could be assessed in terms of
what it would cost to hire a cook or to
purchase ready cooked food or by
assessing how much money could be
earned if the food cooked for the family
were to be sold in the locality.

28. For the reasons aforesaid, while
agreeing with the views of brother
Singhvi, J., I would humbly add, that time
has come for the Parliament to have a
rethinking for properly assessing the
value of homemakers and householders
work
and
suitably
amending
the
provisions of Motor Vehicles Act and
other
related
laws
for
giving
compensation when the victim is a
woman and a homemaker. Amendments
in matrimonial laws may also be made in
order to give effect to the mandate of
Article 15(1) in the Constitution. "

12. The contribution of deceased,
who was mother and wife of the
claimants-appellants
can
hardly
be
overemphasized. The vacuum created in
the household due to death of the
deceased can hardly be compensated in
terms of the money. While assessing her
contribution to the family, it would be
callous on part of a court of law to treat
her contribution as equivalent to the
notional income of Rs.15,000/- per
annum, as suggested by the respondent-
UPSRTC.
The
argument
regarding
notional income of Rs.15,000/- to be
relied as per IInd Schedule in the absence
of proof of income is noticed only to be
rejected. The IInd Schedule, which is
referable to section 163A of the Act,
provide for compensation on structured
formula basis. Section 163-A has been
introduced by the legislature vide Act
No.54 of 1994 with effect to 14.11.1994.
The object of the amending Act was to
provide for speedy compensation even
where allegation of wrongful neglect or
default of the owner, was not pleaded or
established. The provisions of section
163-A introducing the IInd Schedule are
not to be scrupulously followed in a claim
under section 166 of Act. In Puttama &
others v. K.L. Narayana Reddy and
another in Civil Appeal No.10918 of 2013
decided on 9.12.2013, Hon'ble Supreme
Court held as under in para 28 and 29 of
the said judgment:-

"28. In Sarla Verma(Smt.) and others
vs. Delhi Transport Corporation and
another,
2009(6)
SCC121this
Court
compared Section 163A with Section 166
of the Act, 1988 and reiterated that the
principles relating to determination of
liability and quantum of compensation
were different for the claims under
Section 163A and claims made under
Section 166.

29. Thus it will be evident from the
provisions of the Act that the structured
formula as prescribed under Second
Schedule and the multiplier mentioned
therein is not binding for claims under
Section 166 of the Act, 1988."

13. Hon'ble Supreme court in
Puttama (supra) also took note of the fact
that determination of notional income of
2 All] Hansnath Yadav & Ors. Vs. U.P.S.R.T.C.
661
Rs.15,000/- p.a. was introduced by the
Parliament in the year 1994 and on
account of fall in the value of rupee the
notional income was required to be
revised upwardly. It was also noticed that
amendment to the Act has already been
proposed and after it was passed by Rajya
Sabha on 8.5.2012, the bill is pending in
Lok Sabha. Following observations were
made in para 53 and 56 of the said
judgment:-

"53. In view of finding recorded
above, we hold that 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.

56. The Central Government was
bestowed with duties to amend the
Second Schedule in view of Section 163A(3), but it failed to do so for 19 years in
spite of repeated observations of this
Court. For the reasons recorded above, we
deem it proper to issue specific direction
to the Central Government through the
Secretary, Ministry of Road Transport &
Highways
to
make
the
proper
amendments to the Second Schedule table
keeping in view the present cost of living,
subject to amendment of Second Schedule
as proposed or may be made by the
Parliament. Accordingly, we direct the
Central
Government
to
do
so
immediately. Till such amendment is
made by the Central Government in
exercise of power vested under subsection (3) of Section 163A of Act, 1988
or amendment is made by the Parliament,
we hold and direct that for children upto
the age of 5 years shall be entitled for
fixed
compensation of
Rs.1,00,000/-
(rupees one lakh) and persons more than 5
years of age shall be entitled for fixed
compensation of Rs.1,50,000/- (rupees
one lakh and fifty thousand) or the
amount may be determined in terms of
Second Schedule whichever is higher.
Such amount is to be paid if any
application is filed under Section 163A of
the Act, 1988."

14. In the present case, evidence has
been led on behalf of the claimants to the
effect that the deceased was engaged in
operating a PCO and she was earning
Rs.2500/- per month. This court while
deciding the claim under section 166 of the
Act is not to be guided by the amount
claimed, rather, the determination will have
to be made, of just compensation, and if in
enquiry under section 168 (2) of the Act the
court determines higher compensation than
what
was
claimed,
as
being
just
compensation, it would be the duty of the
court to award such higher compensation. It
is true that no proof of income was placed on
record, but the evidence supporting her skills
have not been controverted by leading contra
evidence by the respondent- UPSRTC. The
services rendered by her to the family as wife
and mother are also undisputed. The services
provided by the deceased to her minor
daughters and husband need not be further
elaborated in view of the observations made
in Arun Kumar Agarwal (supra). Even
though the gratuitous services rendered to the
husband and children at home cannot be
compensated in terms of the money but
judicial notice can always be taken of the
skills possessed and employed by her in
extending the services to the family and loss
suffered due to her death. The claimants are
entitled to adequate compensation in lieu of
the loss of gratuitous services rendered by
662 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased. Although proof of income is
not substantiated on record, yet deceased's
income in light of the aforesaid discussions
and the evidence brought on record cannot
be counted as less than the income of a
person who was engaged in performing the
skilled activities. The least, which a court of
law can thus do is to assess her income as not
being less than the income of a skilled
person.

15. Hon'ble Supreme Court while
dealing with the determination of income
of a skilled worker, in the context of
current scenario has determined minimum
income of a skilled worker as Rs.5000 to
6000/- per month.

16. In Minu Rout v. Satya
Pradyumna Mohapatra (2013) 10 SCC
695, Hon'ble Supreme court was dealing
with a claim under section 166 of the Act
of a driver, where Rs.5,000/- per month
was claimed. Hon'ble Supreme Court took
judicial note of the fact that the post of a
driver is skilled one and his salary ought
to have been assessed at Rs.6,000/- per
month and, therefore, we assess the
income of the deceased at Rs.6,000/- per
month for the purposes of determining the
loss of dependency. In Kishan Gopal and
another v. Lala and others: 2013 ACJ
2594, the income of a 10 years old boy
assisting his father in agricultural work
was assessed at Rs.5,000/- per month.
Even in Arun Kumar Agarwal (supra) the
income of the deceased lady was assessed
at Rs.5,000/- per month.

17. In the present case, the deceased
Smt. Rajmati Yadav was aged about 54
years and was performing the functions of
skilled worker/self-employed, in addition
to her contribution to the family as wife or
mother, who died in the accident occurred
in the year 2002. Her income in such
circumstances could not be assessed at
less than Rs.5,000/- per month.

18. In the instant case, the tribunal
has applied the multiplier of 11 as the age
of the deceased was between 50 to 55
years. We also hold it, accordingly.

19. The tribunal has deducted 1/3rd
towards personal and living expenses. In
the present case, deceased was married.
The issue of deduction for personal and
living expenses has been considered in
respect of a married person in para 30 of
Sarla Verma (supra), which is referred
hereinafter:-

"30. Though in some cases the
deduction to be made towards personal
and living expenses is calculated on the
basis of units indicated in Trilok Chandra,
the
general
practice
is
to
apply
standardized
deductions.
Having
considered several subsequent decisions
of this court, we are of the view that
where the deceased was married, the
deduction towards personal and living
expenses of the deceased, should be onethird (1/3rd) where the number of
dependent family members is 2 to 3, oneforth (1/4th) where the number of
dependent family members is 4 to 6, and
one-fifth (1/5th) where the number of
dependent family members exceeds six.

As such, the principle laid down in
para 30 aforesaid would be more
2 All] Hansnath Yadav & Ors. Vs. U.P.S.R.T.C.
663
appropriate to be applied in the present
case. 1/4th of the aforesaid amount,
therefore, would be appropriated towards
personal and living expenses of the
deceased.

20. The tribunal has further awarded
a sum of Rs.2,000/- towards funeral
expenses and Rs.5,000/- towards loss of
consortium. This issue has been dealt with
by Hon'ble Supreme Court in (2013) 9
SCC 54 Rajesh and others vs. Rajbir
Singh and others in para 16 to 18 of the
judgment, which is reproduced:-

"16. In a report on accident, there is
no question of any reference to any claim
for damages, different heads of damages
or such other details. It is the duty of the
tribunal to build on that report and award
just,
equitable,
fair
and
reasonable
compensation with reference to the settled
principles on assessment of damages.
Thus, on that ground also we hold that the
tribunal/court has a duty, irrespective of
the claims made in the application, if any,
to properly award a just, equitable, fair
and
reasonable
compensation,
if
necessary, ignoring the claim ade in the
application for compensation.

17. The ratio of a decision of this
court, on a legal issue is a precedent. But
an observation made by this court, mainly
to achieve uniformity and consistency on
a socio-econmic issue, as contrasted from
a legal principle, though a precedent, can
be, and in fact ought to be periodically
revisited, as observed in Santosh Devi.
We may, therefore, revisit the practice of
awarding
compensation
under
conventional heads: loss of consortium to
the spouse, loss of love, care and guidance
to children and funeral expenses. It may be
noted that the sum of Rs.25000 to
Rs.10,000/- in those heads was fixed several
decades ago and having regard to inflation
factor, the same needs to be increased. In
Sarla Verma case, it was held that
compensation for loss of consortium should
be in the range of Rs.5000 to Rs.10000. In
legal parlance, "consortium" is the right of
the spouse to the company, care, help,
comfort, guidance, society, solace, affection
and sexual relations with his or her mate.
That non-pecuniary head of damages has
not been properly understood by our courts.
The loss of companionship, love, care and
protection, etc. the spouse is entitled to get,
has to be compensated appropriately. The
concept of non-pecuniary damage for loss
of consortium is one of the major heads of
award of compensation in other parts of the
world more particularly in the United States
of America, Austraila, etc. English courts
have also recognised the right of a spouse to
get compensation even during the period of
temporary
disablement.
By
loss
of
consortium, the courts have made an
attempt to compensate the loss of spouse's
affection, comfort, solace, companionship,
society, assistance, protection, care and
sexual relations during the future years.
Unlike the compensation awarded in other
countries and other jurisdictions, since the
legal
heirs
are
otherwise
adequately
compensated for the pecuniary loss, it
would not be proper to award a major
amount under this head. Hence, we are of
the view that it would only be just and
reasonable that the courts award at least
rupees one lakh for loss of consortium.

18. We may also take judicial notice
of the fact that the tribunals have been
quite frugal with regard to award of
664 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation under the head "funeral
expenses". The "price index", it is a fact
has gone up in that regard also. The head
"funeral expenses" does not mean the fee
paid for the use of space in the cemetery.
There are many other expenses in
connection with funeral and, if the
deceased is a follower of any particular
religion, there are several religious
practices and conventions pursuant to
death in a family. All those are quite
expensive. Therefore, we are of the view
that it will be just, fair and equitable,
under the head of "funeral expenses", in
the absence of evidence to the contrary
for higher expenses, to award at least an
amount of Rs.25,000/-"

21. In view of the above, we hold
that the claimants are entitled to loss of
consortium amount of Rs.1,00,000/- and
Rs.25,000/- for funeral expenses.

22. The tribunal has awarded
payment of Rs.2,500/- towards loss of
estate in the present case. The deceased
was married aged about 54 years,
therefore, it would be appropriate to
award a sum of Rs.10,000/- for loss of
estate.

23. In such circumstances, the
claimants
would
be
entitled
to
compensation following heads:-
Sl. No. Heads Calculations
(i) Income Rs. 5,000/-
(ii) 1/4th of (i) to be Rs.3,750/- (Rs.5000-1250)
 deducted as personal expenses of the deceased.
(ii) Compensation (for loss of dependency)
 after multiplier of 11 is applied. Rs.4,95,000/-
(Rs.3750x12x11)
(iv) Funeral expenses Rs.25,000/- (Rs.25,000 + 4,95,000
 =Rs.5,20,000/-)
(v) Consortium Rs.1,00,000/- (Rs.1,00,000+5,20,000
 =Rs.6,20,000/-)
(vi) Loss of estate Rs.10,000/- (Rs.10000+6,20,000
 =Rs.6,30,000/-
Total compensation awarded Rs.6,30,000/-

24. The tribunal has allowed interest at
the rate of 6% p.a. from the date of filing of
the claim petition. This court in F.A.F.O. No.
236 of 2010 considering Puttama & others v.
K.L. Narayana Reddy and another in Civil
Appeal No.10918 of 2013 decided on
9.12.2013, awarded interest at the rate of 9%
p.a. Accordingly, the claimants are entitled to
payment of interest in this case also at the
rate of 9% p.a. from the date of filing of
claim petition till the date of payment.

25. In view of our aforesaid
findings, we modify the award dated
17.2.2011 passed by Motor Accident
Claims Tribunal, Lucknow in M.A.C.P.
No. 533 of 2003 and allow the claim for
payment of compensation amounting to
Rs.6,30,000/-, as calculated above, along
with interest at the rate of 9% p.a. from
the date of filing of the claim petition till
the date of payment. The respondent -
UPSRTC
is
directed
to
pay
enhanced/additional compensation to the
claimants within a period of three months
by getting a demand draft prepared in
their names in proportion to the amount
awarded by the tribunal.

26. Accordingly, the present appeal
is allowed in terms of the aforesaid
directions. No order as to costs.
--------
2 All] Ajay Kumar Shukla alias Chhottan Shukla Vs. State of U.P.
665
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2014

BEFORE
THE HON'BLE ANIL KUMAR SHARMA, J.

Criminal Appeal No. 921 of 2010

Ajay Kumar Shukla alias Chhottan Shukla
 .Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Shyam Sunder Mishra, Sri Mata Prasad
Sri S.S. Chauhan

Counsel for the Respondent:
A.G.A.

Criminal Appeal-against conviction 8 years
rigorous imprisonment with fine of Rs.
5000/-appeal against-confining prayer to
reduce punishment to already undergoneheld-while
considering
appropriate
punishment court not to keep in view the
rights of criminal but also careful about
rights of victim and the society at largeconviction 8 years reduced to 5 yearswithout charge in fine.

Held: Para-12
In the case of Dhananjoy Chatterjee Vs.
State of W. B. [1994] 2 SCC 220, this Court
has observed that shockingly large number
of
criminals
go
unpunished
thereby
increasingly, encouraging the criminals
and in the ultimate making justice suffer
by weakening the system's creditability.
The imposition of appropriate punishment
is the manner in which the Court responds
to the society's cry for justice against the
criminal. Justice demands that Courts
should impose punishment befitting the
crime so that the Courts reflect public
abhorrence of the crime. The Court must
not only keep in view the rights of the
criminal but also the rights of the victim of
the crime and the society at large while
considering the imposition of appropriate
punishment. Similar view has also been
expressed in Ravji v. State of Rajasthan,
[1996] 2 SCC 175. It has been held in the
said case that it is the nature and gravity
of the crime but not the criminal, which
are
germane
for
consideration
of
appropriate punishment in a criminal trial.
The Court will be failing in its duty if
appropriate punishment is not awarded for
a crime which has been committed not
only against the individual victim but also
against the society to which the criminal
and victim belong. The punishment to be
awarded for a crime must not be irrelevant
but it should conform to and be consistent
with the atrocity and brutality with which
the crime has been perpetrated, the
enormity of the crime warranting public
abhorrence and it should "respond to the
society's
cry
for
justice
against
the
criminal". If for extremely heinous crime of
murder perpetrated in a very brutal
manner without any provocation, most
deterrent punishment is not given, the
case of deterrent punishment will lose its
relevance.

Case Law discussed:
AIR 1991 SC 1463; [1994] 2 SCC 220; [1996]
2 SCC 175; AIR 2002 SC 760.

(Delivered by Hon'ble Anil Kumar Sharma, J.)

1. Challenge in this appeal is to the
judgment and order dated 30.1.2010
passed by Sri M. S. Verma, the then Addl.
Sessions Judge, Court no. 9, Fatehpur in
S.T. no. 557 of 2005 (State Vs. Ajay
Kumar Shukla) arising out of Case crime
no. 140 of 2005 u/s 304 IPC, whereby the
appellant had been convicted for the
offence punishable u/s 304-II IPC and
sentenced to undergo 8-years' rigorous
imprisonment and fine of Rs. 5,000/- with
default stipulation.

2. Shorn of details, the prosecution
story was that on 4.7.2005 at 2:15 a.m. a