# National Insurance Co. Ltd v. Smt. Manju Shukla & Ors

- **Citation:** (2020) 2 ILRA 1043
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-16
- **Case number:** FAFO No. 1020 of 2017
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-v-smt-manju-shukla-ors-45609
- **Pages:** 33

## Headnote

Law-Uttar Pradesh Motor Vehicles
Rules, 1998 - Rule 220A - cannot control the
obligation of Tribunal to determine just
compensation

Held - Rule 220A of U.P. Rules, 1998 lays down only a
guideline with respect to award of compensation under
different heads but ultimate authority is that of Tribunal
to determine and award appropriate compensation
which is "just" -Tribunal ought not to have referred to
Rules 220A and 220B for awarding compensation
under any head and instead it ought to have guided
itself by law already settled (Para 95)

B. Motor Accident Claim - Motor Vehicles Act
(59 of 1988) - Ss.166, 168 - Compensation -
under the head of medical expenses, treatment,
medical care etc - deceased in coma - II stage
for about 21 months

Deceased remained in coma - II stage for about 21
months - Pecuniary damages in such case of fatal
injuries and disability cover all the expenses which have
been incurred not only in actual medical treatment i.e.
Doctor fee, Hospital fee, testing fee, medicines cost etc.
but also expenses incurred for hiring nursing services,
expenses incurred by persons present to take care of
the injured, boarding, lodging and travelling expenses
and also the expenses incurred during shifting of
injured from one place to another - Such expenses
cannot be excluded from the total amount of
compensation to be awarded to claimant (Para 105)

C. Civil Law-Motor Vehicles Act (59 of 1988) -
Ss. 166,168 - Compensation - termination of
pregnancy due to accident - deceased pregnant
at the time of accident - Held - a lump sum of
Rs. 2,50,000/- awarded for loss of foetus due to
termination of pregnancy in accident (Para 110)

D. Civil Law- Motor Vehicles Act (59 of 1988) -
S.166 - Compensation - for Pain, shock,
disability etc. - deceased in Coma-II stage for
about 21 months - Held - what deceased
suffered, may not be weighed very accurately in
terms of money, still Rs. 10,00,000/- awarded
under the head of mental shock, pain etc (Para
111)

E. Civil Law-Motor Vehicles Act (59 of 1988) -
Ss. 166, 168 - Compensation - loss of love and
affection - Held Rs. 50,000/- awarded for loss of
love and affection (Para 112)

F. Civil Law-Motor Vehicles Act (59 of 1988) -
Ss. 166, 168 - Compensation - loss of
employment of the claimant husband - as he
was engaged in the care and treatment of his
wife who remained in Coma-II stage

Deceased was housewife - claimant was
husband - loss of employment of Claimant on
account of long duration Coma-II stage of
deceased for about 21 months - Held - loss of
job of claimant husband directly attributable to
the accident & injuries suffered by deceased -
Claimant stated that he was capable of saving
about Rs. 15,000/- per month - Allowing
margin to be discounted, at least loss of saving
of Rs. 10,000/- per month awarded- Rs.
2,10,000/-, in lump sum, awarded to claimant
for loss of employment. (Para 109)

G. Civil Law-Motor Vehicles Act (59 of
1988) - Ss. 166, 168 - Claim petition -
Negligence of driver - Non examination of
drivers - could not have rendered claim
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
for
compensation
by
claimant
not
maintainable

Held - there was no onus on the part of
claimant to show that accident took place
due to rash and negligent driving, as it was
not objected or otherwise pleaded by
Insurers- 1 and 2 and owners of two
tortfeasing vehicles admitted the factum of
rash and negligent - since both vehicles
were insured with Insurers- 1 and 2,
respectively, responsibility directed to be
shared by both Insurance Companies -
non-examination of Drivers could not have
rendered
claim
for
compensation
by
claimant not maintainable (Para 77, 78)

First
Appeal
From
Order
Partly
allowed (E-5)

List of cases cited :

## Text

_Characters 0–39,933 of 98,324. This is a partial read: ask again with offset=39933 for what follows._

2 All. National Insurance Co. Ltd. Vs. Smt. Manju Shukla & Ors.
1043
(2020)02ILR A1043

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

FAFO No. 1020 of 2017
connected with
FAFO No. 1859 of 2017
connected with
FAFO No. 342 of 2015

National Insurance Co. Ltd. ...Appellant
Versus
Smt. Manju Shukla & Ors. ...Respondents

Counsel for the Appellant:
Sri Kuldip Shanker Amist

Counsel for the Respondents:
Sri Rakesh Bahadur, Sri Sudhakar Pandey

A.
Civil
Law-Uttar Pradesh Motor Vehicles
Rules, 1998 - Rule 220A - cannot control the
obligation of Tribunal to determine just
compensation

Held - Rule 220A of U.P. Rules, 1998 lays down only a
guideline with respect to award of compensation under
different heads but ultimate authority is that of Tribunal
to determine and award appropriate compensation
which is "just" -Tribunal ought not to have referred to
Rules 220A and 220B for awarding compensation
under any head and instead it ought to have guided
itself by law already settled (Para 95)

B. Motor Accident Claim - Motor Vehicles Act
(59 of 1988) - Ss.166, 168 - Compensation -
under the head of medical expenses, treatment,
medical care etc - deceased in coma - II stage
for about 21 months

Deceased remained in coma - II stage for about 21
months - Pecuniary damages in such case of fatal
injuries and disability cover all the expenses which have
been incurred not only in actual medical treatment i.e.
Doctor fee, Hospital fee, testing fee, medicines cost etc.
but also expenses incurred for hiring nursing services,
expenses incurred by persons present to take care of
the injured, boarding, lodging and travelling expenses
and also the expenses incurred during shifting of
injured from one place to another - Such expenses
cannot be excluded from the total amount of
compensation to be awarded to claimant (Para 105)

C. Civil Law-Motor Vehicles Act (59 of 1988) -
Ss. 166,168 - Compensation - termination of
pregnancy due to accident - deceased pregnant
at the time of accident - Held - a lump sum of
Rs. 2,50,000/- awarded for loss of foetus due to
termination of pregnancy in accident (Para 110)

D. Civil Law- Motor Vehicles Act (59 of 1988) -
S.166 - Compensation - for Pain, shock,
disability etc. - deceased in Coma-II stage for
about 21 months - Held - what deceased
suffered, may not be weighed very accurately in
terms of money, still Rs. 10,00,000/- awarded
under the head of mental shock, pain etc (Para
111)

E. Civil Law-Motor Vehicles Act (59 of 1988) -
Ss. 166, 168 - Compensation - loss of love and
affection - Held Rs. 50,000/- awarded for loss of
love and affection (Para 112)

F. Civil Law-Motor Vehicles Act (59 of 1988) -
Ss. 166, 168 - Compensation - loss of
employment of the claimant husband - as he
was engaged in the care and treatment of his
wife who remained in Coma-II stage

Deceased was housewife - claimant was
husband - loss of employment of Claimant on
account of long duration Coma-II stage of
deceased for about 21 months - Held - loss of
job of claimant husband directly attributable to
the accident & injuries suffered by deceased -
Claimant stated that he was capable of saving
about Rs. 15,000/- per month - Allowing
margin to be discounted, at least loss of saving
of Rs. 10,000/- per month awarded- Rs.
2,10,000/-, in lump sum, awarded to claimant
for loss of employment. (Para 109)

G. Civil Law-Motor Vehicles Act (59 of
1988) - Ss. 166, 168 - Claim petition -
Negligence of driver - Non examination of
drivers - could not have rendered claim
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
for
compensation
by
claimant
not
maintainable

Held - there was no onus on the part of
claimant to show that accident took place
due to rash and negligent driving, as it was
not objected or otherwise pleaded by
Insurers- 1 and 2 and owners of two
tortfeasing vehicles admitted the factum of
rash and negligent - since both vehicles
were insured with Insurers- 1 and 2,
respectively, responsibility directed to be
shared by both Insurance Companies -
non-examination of Drivers could not have
rendered
claim
for
compensation
by
claimant not maintainable (Para 77, 78)

First
Appeal
From
Order
Partly
allowed (E-5)

List of cases cited :

1. Smt. Manjuri Bera Vs The Oriental
Insurance Company Ltd & Anr AIR 2007 SC
1474

2. The Oriental Insurance Co. Ltd. etc. Vs
Hansrajbhai V.Kodala & Ors 2001(5) SCC
175

3. U.P. State Road Transport Corporation
and Ors. Vs Trilok Chandra & Ors 1996(4)
SCC 362

4. Deepal Girishbhai Soni & Ors Vs United
India Insurance Co. Ltd. 2004(5) SCC 385

5. Sarla Verma & Ors Vs Delhi Transport
Corporation & Anr 2009(6) SCC 121

6.Shashikala & Ors Vs Gangalakshmamma
& Ors 2015(9) SCC 150

7. Mehmet Vs Perry (1977) 2 All ER 52

8. Arun Kumar Agrawal & Anr Vs National
Insurance Company Limited & Ors 2010(9)
SCC 218

9. R.D. Hattangadi Vs M/s. Pest Control (India)
Pvt. Ltd. & Ors 1995(1) SCC 551
10. Raj Kumar Vs Ajay Kumar & Anr 2011(1)
SCC 343

11. Sanjay Verma Vs Haryana Roadways
2014(3) SCC 210

12. Syed Sadiq & Ors Vs Divisional Manager,
United India Insurance Company Ltd 2014(2)
SCC 735

13. Rajan Vs Soly Sebastian & Anr 2015(10)
SCC 506

14. Sanjay Kumar Vs Ashok Kumar & Anr
2014(5) SCC 330

15. Kanhsingh Vs Tukaram 2015(1) SCALE 366

16.Kalpanaraj & Ors Vs Tamil Nadu State
Transport Corporation 2015(2) SCC 764

17. Asha Verman & Ors Vs Maharaj Singh &
Ors 2015(4) SCALE 329

18.Jitendra Khimshanker Trivedi & Ors Vs
Kasam Daud Kumbhar & Ors 2015(4) SCC 237

19. National Insurance Company Limited Vs
Lavkush & Ors 2017 (4) ALJ 391, III (2018)
ACC 319 (All)

20.National Insurance Company Limited Vs
Pranay Sethi & Ors 2017 (16) SCC 680

21.Prakash & Ors Vs Arun Kumar Saini and
Another 2010 (3) TAC 114

22. Malarvizhi & Ors Vs. United India Insurance
Company Ltd & Anr (Civil Appeal No. 9196-97
of 2019 @ SLP (C) Nos. 9630-31 of 2019)
09.12.2019

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. First Appeal From Order No. 1020
of 2017 (hereinafter referred to as
"FAFO-1") has been filed by defendant-
Insurance Company under Section 173 of
2 All. National Insurance Co. Ltd. Vs. Smt. Manju Shukla & Ors.
1045
Motor Vehicles Act, 1988 (hereinafter
referred to as "Act, 1988") challenging
judgement and award dated 29.09.2014
passed by Sri Ashwani Kumar Singh,
Additional District Judge, Court No. 1,
Ballia/ Presiding Officer, Motor Accidents
Claims
Tribunal,
Ballia
(hereinafter
referred to as "Tribunal") in Motor
Accident
Claim
Petition
(hereinafter
referred to as "MACP") No. 57 of 2010
awarding compensation of Rs. 72,47,000/-,
payable 50 per cent by appellant-Insurance
Company, namely, National Insurance
Company Limited (hereinafter referred to
as "Insurer-1") and remaining 50 per cent
by
New
India
Assurance
Company
Limited
(hereinafter
referred
to
as
"Insurer-2") impleaded as respondent-3 in
this appeal. Tribunal has also awarded 8
per cent interest on the amount of
compensation which is to be computed
from 11.06.2010, i.e., the date on which
application for compensation was filed, till
the date of payment. Respondent-1, who is
claimant-respondent, is now substituted by
respondent-
1/1,
since
died
during
litigation. Respondent-2, Maruti Bhai, is
the owner of Truck No. MH 15G 4212
while respondent-4 Ahmad Jalil Shekh is
the owner of Qualis bearing registration
No. MH 04BN 1138.

2. First Appeal From Order No. 342
of 2015 (hereinafter referred to as
"FAFO-2") has been filed by New India
Assurance Company Limited i.e. Insurer-2
against the same award and grounds taken
therein are also similar as taken in FAFO1.

3. First Appeal From Order No. 1859
of 2013 (hereinafter referred to as
"FAFO-3") is claimant's appeal which has
also come up against same award being
dissatisfied with quantum of compensation
awarded therein and seeks enhancement of
compensation to Rs. 1,12,50,000/-.

4. In FAFO-1, Sri Kuldip Shanker
Amist,
Advocate
has
appeared
for
appellant i.e. Insurer-1, Sri Sudhakar
Pandey, Advocate has appeared for
claimant-respondent
and
Sri
Rakesh
Bahadur, Advocate has appeared for
respondent-3, i.e., Insurer-2.

5. In FAFO-2, Sri Rakesh Bahadur,
Advocate, has appeared for appellant, i.e.,
Insurer-2, Sri Sudhakar Pandey, Advocate,
has appeared for claimant-respondent and
Sri Kuldip Shanker Amist, learned counsel
for respondent-2 i.e. Insurer-1

6. In FAFO-3, Sri Sudhakar Pandey,
Advocate, has appeared for claimantappellant; Sri Rakesh Bahadur, Advocate,
has appeared for for respondent-3, i.e.,
Insurer-2; and, Sri Kuldip Shanker Amist,
learned counsel for respondent-1, i.e.,
Insurer-1.

7. Since all these appeals having
arisen from common judgement and
award, they are similar. Therefore, we
briefly describe the facts as under.

8. On 15.09.2009 at 07:00 AM, Smt.
Manju Shukla wife of Arvind Kumar
Shukla went for darshan of Sai Baba at
Shirdi (State of Maharashtra) along with
her relatives in a vehicle Toyota Qualis
being registration No. MH 04BN 1138.
When they reached at village Kokan, P.S.
Sangamner, District Ahmednagar, a Truck
No. MH 15G 4212 which was being
driven rashly and negligently by its Driver,
collided with Toyota Qualis vehicle
causing serious injuries to Smt. Manju
Shukla and other passengers. Injured were
taken to Tambe Hospital, Sangamner and
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
report was also lodged in P.S. Sangamner.
Smt. Manju Shukla sustained injuries on
head and went in Coma-II stage. She
remained admitted in Tambe Hospital
from 15.09.2009 to 08.10.2009 and during
treatment, she underwent several testings
and medical examinations. As her situation
could not be controlled, she was referred
to Kokilaben Dhirubhai Ambani Hospital
where she was admitted on 08.10.2009 and
remained
under
treatment
upto
20.05.2010. During period of treatment,
husband of Smt. Manju Shukla and others,
who were taking care, resided there by
hiring rooms in hotel. She was discharged
on 20.05.2010 and brought to her home at
Ballia where she was given treatment at
Gaurav Nursing Home, Tikampur, run by
Dr. D. Rai. She was treated there till
06.06.2011. In the evening at around 06:00
PM on 06.06.2011, when she was at home,
she breathed her last and was declared
dead by Dr. D. Rai. At the time of
accident, Smt. Manju Shukla was in family
way having 2 months and 15 days foetus
which was terminated due to accident as
per Doctor's report. Claimant was working
as Business Development Manager in Tata
AIG Life Insurance Company. At the time
of death, Smt. Manju Shukla was age of
about 26 years.

9. During her life time, Smt. Manju
Shukla filed Claim Petition No. 166 of
Act,
1988
vide
application
dated
11.06.2010. At the time of filing of
aforesaid
claim
petition,
she
was
undergoing treatment and in the stage of
Coma-II at Kokilaben Dhirubhai Ambani
Hospital. After her death, claim petition
was amended and her husband Arvind
Kumar Shukla was impleaded as claimant-
1/1. He sought compensation of Rs.
1,12,50,000/- and its description was given
as under:
22. Amount of compensation claimed by
Claimant-Respondent.
1.
Towards loss of
earning
of
deceased
and
future prospects.
Rs. 15,00,000/-
2.
Expenses towards
treatment
of
deceased.
Rs. 40,00,000/-
3.
Expenses
likely
to occur in future,
in case she was
surviving.
Rs. 20,00,000/-
4.
Expenses towards
conveyance
and
on
relatives
during treatment
of deceased.
Rs. 25,00,000/-
5.
Expenses towards
Food
Supplements, like
milk, fruits, etc.,
given to deceased
during treatment.
Rs. 10,00,000/-
6.
Claim
towards
pains
and
suffering suffered
by deceased and
relatives
on
account
of
injuries sustained
in the accident.
Rs. 10,00,000/-
7.
Claim
towards
loss
of
consortium, love
and affection.
Rs. 2,00,000/-
8.
Expenses towards
funeral and other
rituals.
Rs. 50,000/-
 Total
Rs. 1,12,50,000/-
2 All. National Insurance Co. Ltd. Vs. Smt. Manju Shukla & Ors.
1047

10. Contesting the claim, Insurer-1 filed
written statement through Senior Divisional
Manager, Branch at Mau denying the facts
stated in various paragraphs of claim petition
in general. The objection taken is that claimant
Arvind Kumar Shukla has no right to maintain
said petition; Death of Smt. Manju Shukla on
06.06.2011 was not admitted to Insurer-1; no
report was registered with regard to her death
in P.S. Sangamner, District Ahmednagar in the
context of accident in question; Claim of
compensation
under
various
heads
is
exaggerated, artificial and not payable;
documents in evidence submitted before
Tribunal in a sealed box having been sent by
Insurer-1 are not acceptable; no evidence was
adduced to show that deceased was in family
way; facts regarding admission of patient at
Tambe Hospital and Kokilaben Dhirubhai
Ambani Hospital are fictitious; when deceased
being a housewife, there is no question of loss
of earning and entire claim is fictitious; earlier
notices were issued when injured's claim was
allowed but since she has not died, fresh notice
must have been issued.

11. A separate written statement was
filed by New India Assurance Company
Limited, i.e. Insurer-2, wherein it also denied
facts stated in the claim petition. In additional
pleas, it was stated that claim is excessive and
exaggerated; Claimant has no right to file
claim petition and not entitled for any
compensation;
Claim
petition
was
not
maintainable at Ballia; Entire negligence
causing accident was that of Truck Driver and,
therefore, Insurer-2, Insurer of vehicle Toyota
Qualis,
was
not
liable
to
pay
any
compensation. Copy of written statement of
Insurer-2 is at page- 63 of paper book in
FAFO-3.

12. Defendant-2 in claim petition, i.e., Sri
Maruti Bhai, owner of Truck No. MH 15G
4212, in his written statement though denied
the facts stated in claim petition but in
additional pleas, he admitted that accident
occurred on 15.09.2009 at 07:00 AM at NasikShani Shingnapur road near village Kokar,
P.S. Sangamner, District Ahmednagar but
pleaded that it was due to negligence of Driver
of vehicle Toyota Qualis and not of Truck
Driver, therefore, he was not liable to pay any
compensation. He also admitted that his Truck
No. MH 15G 4212 is insured with Insurer-1
vide Policy No. 311500/31/04/630002877
effective from 05.05.2009 to 04.05.2010 and,
therefore, liability, if any, would be that of
Insurer-1. It was also pleaded that Driver
driving Truck was having a valid Driving
Licence and all other documents were also in
order.

13. Defendant-4 Sri Ahmed Zalil
Shekh, owner of Toyota Qualis bearing
no. MH 04BN 1138 also filed a written
statement which is at page 74 of paper
book in FAFO-3. In general, facts
stated in claim petition were denied by
him though he admitted that he is the
owner of Toyota Qualis No. MH 04BN
1138.
In
additional
pleas,
he
challenged the right of claimant to file
claim petition against him. He claimed
that there was no negligence on the
part of Driver of Toyota Qualis and in
any case, it was duly insured with
Insurer-2 on the date of accident vide
Policy No. 11060/31/00/01/00024833
effective
from
28.12.2008
to
27.12.2009 and, therefore, liability, if
any, is that of Insurance Company.

14. On the basis of respective
pleadings,
Tribunal
formulated
following seven issues:-

^^1- D;k Jherh eatw 'kqDyk dh vksj
ls muds ifr vjfoUn dqekj 'kqDyk dks izLrqr
;kfpdk ;ksftr djus dk vf/kdkj gS\
1048 INDIAN LAW REPORTS ALLAHABAD SERIES

2- D;k fnukad 15-09-09 dks izkr%
dky 7-00 cts ukfld 'kfu flaxMkiqj jksM ij
xzke dksdm Fkkuk laxeusj ftyk vgenuxj
egkjk"V~ ds vUrxZr dfFkr nq?kZVuk esa fyIr
okgu V~d la[;k ,e0,p0 15th0 4212 o okgu
Dokfy'k la[;k ,e0,p0 04ch0,u0 1138 ds
pkydksa us vius vius okguksa dks rsth o
ykijokgh ls pykdj ,d nwljs dks VDdj ekjh]
ftlls okgu la[;k ,e0,p0 04ch0,u0 1138
ij lokj Jherh nq?kZVuk dh frfFk ij oS/k ,oa
izHkkoh pkyd ykbZlsUl ugha Fkk\

3- D;k nq?kZVuk esa fyIr okgu la[;k
,e0,p0 15 th0 4212 ds pkyd ds ikl
nq?kZVuk dh frfFk ij oS/k ,oa izHkkoh pkyd
ykbZlsUl ugha Fkk\

4- D;k nq?kZVuk esa fyIr okgu la[;k
,e0,p0 04ch0,u0 1138 ds pkyd ds ikl
nq?kZVuk dh frfFk ij oS/k ,oa izHkkoh pkyd
ykbZlsUl ugha Fkk\

5- D;k nq?kZVuk esa fyIr okgu la[;k
,e0,p0 15 th0 4212 foi{kh la[;k&3 fn U;w
bfUM;k bU';ksjsUl dEiuh fyfeVsM ls chfer Fkk\

6- D;k nq?kZVuk esa fyIr okgu la[;k
,e0,p0 04ch0,u0 1138 foi{kh la[;k&1
us'kuy bU';ksjsUl dEiuh fyfeVsM }kjk chfer
FkkA

7- vuqrks"k\**

"1 . Whether Arvind Kumar
Shukla has a right to file the instant
petition on behalf of his wife Smt Manju
Shukla?

2 . Whether on 15.9.09 at 7 am,
on Nashik Shani Shignapur Road, in
Village Kakau, P.S. Sangamner, Distt
Ahmedabad, Maharashtra, drivers of
Truck no MH 15G 4212 and Qualis no
MN 04BN 1138 speedily and recklessly
drove and thus rammed their respective
vehicles into each other, as a result of
which Smt Manju aboard vehicle no MH
04BN 1138 sustained serious injuries and
consequently died during her treatment ?

3 . Whether driver of vehicle no
M.H.15 G4212, involved in accident, did
not have a valid and effective driving
license on the date of accident?

4 . Whether driver of vehicle no.
MH 04BN 1138, involved in accident, did
not have a valid and effective driving
license on the date of accident?

5 . Whether vehicle no M.H.15
G4212 involved in accident was insured
with respondent no 3 The New India
Insurance Company Limited?

6 . Whether vehicle no. MH
04BN 1138 involved in accident was
insured with respondent no 1 The National
Insurance Company Limited?

7. Relief?"
(English Translation by Court)

15. After amendment of claim
petition, Insurers- 1 and 2 both filed their
written statements and thereafter six more
issues were framed as under:-

^^1- D;k fnuakd 15-09-09 dks izkr%
dky 7-00 cts ukfld 'kfulaxkjiqj jksM ij xzke
dksdM Fkkuk laxeusj ftyk vgenuxj] egkjk"V~
ds vUrxZr dfFkr nq?kZVuk esa fyIr okgu V~d
la[;k ,e0,p0 15 th0 4212 o okgu Dokfy'k
la[;k ,e0,p0 04ch0,u0 1138 ds pkydksa us
vius vius okgu dks rsth o ykijokgh ls
pykdj ,d nwljs dks VDdj ekj fn;k ftlls
okgu la[;k ,e0,p0 04ch0,u0 1138 ij lokj
Jherh eatw 'kqDyk dks xEHkhj pksVsa vk;h] ftlds
ifj.kkeLo:i nkSjku bykt mldh e`R;q gks x;h\

2- D;k nq?kZVuk esa fyIr okgu la[;k
,e0,p0 15 th0 4212 ds pkyd ds ikl
nq?kZVuk dh frfFk ij oS/k ,oa izHkkoh pkyd
ykbZlsUl ugha Fkk\

3- D;k nq?kZVuk esa fyIr okgu la[;k
,e0,p0 04ch0,u0 1138 ds pkyd ds ikl
nq?kZVuk dh frfFk ij oS/k ,oa izHkkoh pkyd
ykbZlsUl ugha Fkk\

4- D;k nq?kZVuk esa fyIr okgu la[;k
,e0,p0 15 th0 4212 foi{kh la[;k&3 fn U;w
bfUM;k bU';ksjsUl dEiuh fyfeVsM ls chfer Fkk\
2 All. National Insurance Co. Ltd. Vs. Smt. Manju Shukla & Ors.
1049

5- D;k nq?kZVuk esa fyIr okgu la[;k
,e0,p0 04ch0,u0 1138 foi{kh la[;k&1
us'kuy bU';ksjsUl dEiuh fyfeVsM }kjk chfer
FkkA

6- vuqrks"k\**

" 1. Whether on 15.9.09 at 7 am
on Nashik Shani Shignapur Road in
Village Kakau, PS Sangamner, Distt
Ahmedabad, Maharashtra, the drivers of
Truck no M.H. 15G 4212 and Qualis no
MH 04BN 1138 speedily and recklessly
drove and thus rammed their respective
vehicles into each other, as a result of
which Smt Manju aboard vehicle no MH
04BN 1138 sustained serious injuries and
consequently died during her treatment ?

2 . Whether driver of vehicle no
M.H.15 G4212, involved in accident, did
not have a valid and effective driving
license on the date of accident?

3 . Whether driver of vehicle no.
MH 04BN 1138, involved in accident, did
not have a valid and effective driving
license on the date of accident?

4 . Whether vehicle no M.H.15
G4212, involved in accident, was insured
with respondent no 3 The New India
Insurance Company Limited?

5 . Whether vehicle no. MH
04BN 1138, involved in accident, was
insured with respondent no 1 The National
Insurance Company Limited?

6. Relief?"
(English Translation by Court)

16. In support of claim, claimant
adduced
oral
evidence
by
deposing
himself as PW-1; Sri Kedar Chaudhary as
PW-2; Kumari Sudha Shukla as PW-3; Dr.
Dadan Rai as PW-4; Dr. Rajendra Bhau as
PW-5; Sri Ravi Ranjan as PW-6; Sri
Avinash Srivastava as PW-7 and Sri Bhola
Nath as PW-8. The written evidence
comprised of First Information Report
(hereinafter
referred
to
as
"FIR"),
Insurance Cover Note of both vehicles,
Driving License, permit, fitness certificate,
medical bills, certificate issued by Chief
Medical Officer regarding permanent
disability of Smt. Manju Shukla to the
extent of 100 per cent, appointment letter
of claimant-respondent, document about
his salary and various bill vouchers
showing expenditure incurred on the
treatment of Smt. Manju Shukla.

17. After examining evidence,
Tribunal held that both tortfeasing vehicles
were insured with respective Insurance
Companies; both Drivers possessed valid
Driving License and vehicles have other
requisite
documents
like
Fitness
Certificate, Registration Certificate etc.,
and these facts are duly proved. The
factum of accident was also found proved.
Thereafter,
it
examined
expenditure
incurred on treatment of Smt. Manju
Shukla and on the basis of medical bills
and other documents, it held that Rs. 55 to
56 lacs were spent by husband of
deceased; she was in the stage of Coma-II
during the period of treatment since after
accident; being a housewife, her notional
income was assessed at Rs. 4,500/- per
month which comes to Rs. 54,000/- per
annum. Applying multiplier of 18, her
total income comes to Rs. 9,72,000/- and
thereafter deducting 1/3, it was reduced to
Rs. 6,48,000/-. Further, Tribunal added 50
per cent for future prospects as per Rules
220A and 220B added in U.P. Motor
Vehicles Rules, 1998 (hereinafter referred
to as "Rules, 1998") vide UP Motor
Vehicles (Eleventh Amendment) Rules,
2011
(hereinafter
referred
to
as
"Amendment Rules, 2011") and this comes
to Rs. 9,72,000/-. It allowed Rs. 10,000/-
towards loss of estate; Rs. 10,000/-
towards loss of consortium and Rs. 5,000/-
towards funeral expenses. Tribunal also
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
awarded compensation of Rs. 9,97,000/-
plus Rs. 55 lacs towards medical expenses
and a sum of Rs. 5,00,000/- towards pain
and mental torture, since deceased suffered
100 per cent permanent disability and
remained in Coma-II stage for about one
year
nine
months.
Thus,
total
compensation of Rs. 72,47,000/- was
awarded. Thereafter, it held that both
vehicles were equally responsible for said
accident and, therefore, held Insurers- 1
and 2 liable to pay equal amount of
compensation and has accordingly directed
both to pay 50 per cent each towards
compensation out of total compensation of
Rs. 72,47,000/- awarded by Tribunal along
with 8 per cent interest to be computed
from the date of filing of application i.e.
11.06.2010 till actual payment.

18. Sri Rakesh Bahadur, learned counsel
appearing for Insurer-2 contended that Drivers
were not examined and, therefore, it could not
have been proved that accident was due to rash
and negligent driving by both the Drivers;
there is no finding recorded by Tribunal on the
point of negligence; medical expenses as per
evidence adduced, were much less than what
was actually claimed and awarded by Tribunal,
therefore, award in question is bad in law to
that extent; deceased was a house-wife,
therefore, claimant-husband cannot be said to
be dependent upon her and, hence, there was
no loss of dependency for awarding any
compensation.

19. Adopting his argument, Sri K.S.
Amist, Advocate submitted that amount of
medical expenses awarded by Tribunal is
highly excessive. Referring to Ground-20, he
urged that as per documents adduced by
claimant, total amount of medical expenses
comes to Rs. 26,60,344/- though Rs. 55 lakhs
has been awarded by Tribunal which is
apparently perverse; no future prospects could
have been allowed by relying on Rule 220A
added by Amendment Rules, 2011 with effect
from 26.09.2011 as accident took place on
15.09.2009 and said Rule was not available on
that date.

20. Learned counsel for Claimant in
support of his claim for enhancement of
compensation contended that Tribunal has
awarded only 8 per cent interest though it
ought to be 12 per cent and that too,
should have been awarded from the date of
accident and not from the date of claim
petition. He further submits that due to
long duration of treatment of deceased,
Claimant has to leave his job and sustained
serious
financial
scarcity
but
no
compensation under this head has been
awarded; the amount of compensation
awarded under the head of loss of estate,
love and affection and financial expenses
are also meagre and not consistent with
law laid down by Supreme Court; for
termination of pregnancy due to accident,
Claimant was entitled for appropriate
compensation but Tribunal awarded only
Rs. 2,50,000/- under the said head which is
quite inadequate; assessment of notional
income of Rs. 4,500/- per month is
inadequate, unjust and meagre and it
should have been real, just and much
higher.

21. On the arguments raised by
learned counsel for parties as noticed
above and perusal of record, the points for
determination which have arisen in these
appeals are formulated as under:-

(i) Whether non-examination of
Drivers would affect the findings of
Tribunal in any manner on the issue of
rash and negligence driving.

(ii) Whether Tribunal has erred
in law in allowing future prospects and has
2 All. National Insurance Co. Ltd. Vs. Smt. Manju Shukla & Ors.
1051
rightly followed Rule 220A or no future
prospects were awardable ?

(iii) Whether Rule 220A could
have been relied for determination of
just compensation ?

(iv) Whether notional income
of deceased has been determined by
Tribunal
rightly
or
it
needs
be
increased as claimed by Claimant or
reduced as claimed by Insurers-1 and 2
?

(v)
Whether
amount
of
compensation awarded by Tribunal
towards medical expenses and for
treatment is excessive, based on no
evidence or it is on the lower side as
claimed by Claimant or is justified and
warrants no interference ?

(vi)
Whether
loss
of
employment of Claimant on account of
long
duration
Coma-II
stage
of
deceased, running for about 21 months,
termination of pregnancy etc., deserves
to
be
awarded
any
amount
of
compensation and non-consideration
and non-award of any amount on this
aspect by Tribunal is erroneous ?

(vii)
Whether
amount
of
compensation awarded under the head
of loss of estate, love and affection,
funeral expenses etc., is just, valid,
adequate or needs be increased ?

22. Before coming to aforesaid
issues, evidence as adduced before
Court below and admitted or proved,
may be re-collected at this stage.

23. With regard to Insurance of
Truck No. MH 15G 4219, Sri Vinod
Kumar Sinha, Development Officer of
Insurer-1 appeared as DW-1 and proved
that vehicle was insured with Insurer-1 and
had a valid period of insurance from
05.05.2009 to 04.05.2010.

24. Similarly, in respect of Insurance
of Toyota Qualis, Sri Ashok Kumar,
Assistant Manager of Insurer-2 appeared
in person and proved insurance of said
vehicle with Insurer-2.

25. Giving details of documents
which have been considered by Tribunal
for awarding Rs. 55,00,000/- towards
expenses on treatment, medicines and
other incidental expenses, it has referred to
a list of 32 documents as under:-

S.No
.
Paper
No.
No. of
Bills/
Vouch
ers
Expens
es
towards
Amount
in Rs.
1.
GA70
40
Care
Pharma
(Medica
l
and
General
Stores)
Rs.
26,887.57
/-
2.
GA71
1
Tambe
Hospita
l
at
Sangam
ner
Rs.
2,44,800.
00/-
3.
GA72
7
Shri
Siddhes
hwar
Medical
s
Rs.
6,522.00/
-
4.
GA73
5
C.T.
Scan
Center
Pvt.
Ltd.
Rs.
8,100.00/
-
5.
GA74
4
Blood
Bank
Rs.
1620.00/-
6.
GA75
3
Ambula
nce
Rs.
800.00/-
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
7.
GA76
50
Care
Pharma
(Medica
l
and
General
Stores)
Rs.
71,472.16
/-
8.
GA77
4
Care
Pharma
(Medica
l
and
General
Stores)
Rs.
79,087.00
/-
9.
GA78
1
Fooding
and
lodging
Rs.
1,82,800.
00/-
10.
GA80
102
Hospita
l:
Kokilab
en
Dhirubh
ai
Ambani
Rs.
19,25,483
.00/-
11.
GA81
21
Hospita
l:
Kokilab
en
Dhirubh
ai
Ambani
Rs.
17,25,483
.00/-
12.
GA82
4
Bina
Nurses
Bureau
Rs.
25,943.00
/-
13.
GA83
3
Medicin
es
Rs.
4,785.00/
-
14.
GA84
1
Hotel
Divya
Internat
ional
10.10.0
9
to
20.5.10
Rs.
2,66,400.
00/-
15.
GA86
9
Radhika
Travels
13.09.0
9
to
20.05.1
0
Rs.
9,65,200.
00/-
16.
GA87
96
Fooding
at
Sharma
Veg
Fast
Food
08.10.0
9
to
31.10.0
9
Rs.
45,264.00
/-
17.
GA88
120
Fooding
at
Sharma
Veg
Fast
Food
1.11.09
to
30.11.0
9
Rs.
59,858.00
/-
18.
GA89
124
Fooding
at
Sharma
Veg
Fast
Food
1.12.09
to
31.12.0
9
Rs.
62,047.00
/-
19.
GA90
124
Fooding
at
Sharma
Veg
Fast
Food
1.1.10
Rs.
64,495.00
/-
2 All. National Insurance Co. Ltd. Vs. Smt. Manju Shukla & Ors.
1053
to
31.1.10
20.
GA91
112
Fooding
at
Sharma
Veg
Fast
Food
1.2.10
to
28.2.10
Rs.
56,153.00
/-
21.
GA92
124
Fooding
at
Sharma
Veg
Fast
Food
1.3.10
to
31.3.10
Rs.
63,748.00
/-
22.
GA93
120
Fooding
at
Sharma
Veg
Fast
Food
1.4.10
to
31.4.10
Rs.
61,047.00
/-
23.
GA94
80
Fooding
at
Sharma
Veg
Fast
Food
1.5.10
to
20.5.10
Rs.
41,337.00
/-
24.
GA95
90
Medicin
e at Sri
Ram
Medical
Rs.
67,422.00
/-
Store
25.
GA96
10
Medicin
e at Sri
Ram
Medical
Store
Rs.
4,848.00/
-
26.
GA97
8
Agrawa
l
Surgical
Empori
um
Rs.
17,449.00
/-
27.
GA98
20
Gaurav
Nursing
Home
Rs.
3,87,050.
00/-
28.
GA99
2
Surgery
and
Patholo
gy
Rs.
3,850.00/
-
29.
GA135
6
Bed
Charge
of
Gaurav
Nursing
Home
Rs.
1,75,800.
00/-
30.
GA136
6
X-Ray
and
Patholo
gy
of
Gaurav
Nursing
Home
Rs.
13,350.00
/-
31.
GA137
14
Medicin
e at Sri
Ram
Medical
Store
Rs.
6,727.00/
-
32.
GA138
5
Agrawa
l
Surgical
Empori
um
Rs.
6,257.00/
-
1054 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Before examining points for
determination as formulated above, we
find it appropriate to have a glimpse of
statutory provisions and the purpose and
objective for which Act, 1988 makes
provisions for compensation in case of
death or injury sustained by a person in a
motor accident as that will be a guiding
factor in examining the various questions
raised in these appeals.

27. It is also evident from record that
initially application for compensation was
filed by Smt. Manju Shukla through her
representative, having sustained serious
injuries leading her to Coma-II stage.
From the date of accident and during her
treatment, lot of expenses were incurred
by her husband. Admittedly, application
was filed under Section 166 of Act, 1988
by Smt. Manju Shukla. Subsequently, after
her death, necessary amendments were
made and husband of deceased Smt.
Manju Shukla became Claimant. The
relevance of application having been filed
under Section 166 of Act, 1988 is for a
reason. In fact, in Act, 1988, there are
three provisions whereunder compensation
can be awarded to a victim or his/ her legal
heirs as the case may be.

28. Chapter X, having Sections 140
to 144, deals with the provisions relating
to "liability without fault", in certain cases.
Provisions under this Chapter have been
given overriding effect by virtue of
Section 144. Section 140(1) provides,
where death or permanent disablement has
resulted to a person from an accident
arising out of use of a motor vehicle or
motor vehicles, owner/owners of vehicle
shall, jointly and severely, be liable to pay
compensation, in respect of such death or
disablement, in accordance with said
section. Sub-section (2) provides a fixed
amount of Rs. 50,000/- in case of death
and Rs. 25,000/- in case of permanent
disablement. In order to attract Section
140 there is no necessity or requirement to
show that accident took place due to rash
and negligent driving of tortfeaser vehicle.
It recognizes principle of "no fault
liability".
The
amount
awardable
thereunder is fixed by legislature itself.
Liability is that of owner. Insurer does not
come into picture when claim is made
under Section 140. This "no fault liability"
envisaged in Section 140 is distinct from
the "rule of strict liability". In other words,
liability under Section 140 is a statutory
liability. If an amount under Section 140
has been paid and thereafter claim is made
under Section 166, amount paid under
Section 140 is liable to be deducted from
final amount of compensation awarded by
Tribunal. The amount under Section 140
being a fixed/crystallized amount, same
has to be considered as part of estate of
deceased as held in Smt. Manjuri Bera
vs. The Oriental Insurance Company
Ltd. and another, AIR 2007 SC 1474.

29. Liability under Section 140 has
to be borne by owner if vehicle was not
insured or there was a breach of conditions
of insurance. Though Section 140 makes
owner of vehicle responsible for payment
of compensation but if vehicle is insured,
it is always open to owner to make Insurer
liable to pay amount of compensation for
the reason that once vehicle is covered
under the terms of policy, it is for Insurer
to make payment of liability of owner to
the extent indicated in policy, be it under
Section 166 or Section 140 of Act, 1988.

30. In the scheme of Act, 1988,
Chapter X, by virtue of Section 140,
contemplates quick relief to a victim by
awarding a fixed amount of compensation,
2 All. National Insurance Co. Ltd. Vs. Smt. Manju Shukla & Ors.
1055
if death or permanent disability has
resulted from an accident arising out of
use of a motor vehicle and for this purpose
there is no requirement of pleading or
establishing that death or permanent
disablement was due to any wrongful act,
negligence or default of owner of vehicle.

31. Section 141 declares that right to
claim compensation under Section 140 is
in addition to any other right to claim
compensation on the principle of "fault
liability" but it only excludes right to claim
compensation under Section 163A. In
other words, if a compensation is claimed
under "no fault liability" then either it can
be an application under Sections 140 or
163A and not both. This is what has also
been clarified in The Oriental Insurance
Co. Ltd. etc. vs. Hansrajbhai V.Kodala
and others, 2001(5) SCC 175.

32. Section 142 classifies injuries
which
are
considered
"permanent
disablement" for the purpose of Chapter X
of Act, 1988.

33. By virtue of Section 143 of Act,
1988, benefit of "no fault liability" under
Chapter X has also been extended to a
workman to claim compensation in respect
of death or permanent disablement either
by approaching Workman Compensation
Commissioner
under
Workmen's
Compensation Act, 1923 (hereinafter
referred to as the "Act, 1923") or Tribunal
under Act, 1988, by filing application
under Section 140 of Act, 1988.

34. Next provision under Act, 1988
is Section 161 read with Section 163,
which
is
a
special
provision
for
compensation in case of a hit and run
motor accident where identity of vehicle/
tortfeaser is not ascertainable despite
reasonable efforts for the purpose. In this
regard Section 163 empowers Central
Government to make a scheme for
payment of compensation in hit and run
accident cases and subject to such scheme,
Section 161(3) provides compensation of
fixed sum of Rs. 25,000/- in case of death
and Rs. 12,500/- in case of grievous
injuries.

35. Initially when Act, 1988 was
enacted there was no provision for
compensation in case of "no fault liability"
based on a structured formula which
provides scope for determination of
compensation. By Act 54 of 1994, and
w.e.f. 14.11.1994, Section 163A was
inserted making special provision for
payment of compensation on structured
formula. This Section commences with a
"non-obstente"
clause
and
overrides
provisions of Act, 1988 or any other law
for the time being in force or instrument
having force of law. It says that owner of
vehicle or authorized Insurer shall be
liable to pay compensation as indicated in
Second Schedule in case of death, to legal
heirs
and
in
case
of
permanent
disablement, to the victim, as the case may
be. Explanation to Section 163A(1)
incorporates by Reference, meaning of
"permanent disability" as provided in Act,
1923 to the word "permanent disablement"
used under Section 163A of Act, 1988. For
claiming compensation under Section
163A(1) claimant is not required to plead
or establish that accident occurred due to
any wrongful act, neglect or default on the
part of owner of vehicle concern or of any
other person.

36. There is a note appended to
Second Schedule of Act, 1988, raising a
legal fiction stating that injuries deemed to
result in permanent total disablement/
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
permanent
partial
disablement
and
percentage of loss of earning capacity shall
be as per Schedule First under Act, 1923.
In para 5 of Second Schedule of Act, 1988,
provisions of First Schedule of Act, 1923
have been incorporated by reference. To
attract Section 163A and to claim
compensation thereunder, one has to
establish factum of accident, age of
deceased/ injured, as the case may be and
his/her income. Broadly, these are the only
relevant factors to be brought before
Tribunal for determining compensation
under Section 163A.

37. However, while determining
compensation, Tribunal has to consider
relevant factors and it cannot be expected to go
by a ready reckoner as held in U.P. State
Road Transport Corporation and Ors. vs.
Trilok Chandra and others, 1996(4) SCC
362.

38.

Next
provision
relating
to
compensation is Chapter XII, i.e., Section 166
read with Section 165.

.

39. State Government has empowered
by Section 165(1) to constitute one or more
Tribunals for the purpose of adjudicating upon
claims for compensation in respect of
accidents involving death of, or bodily injury,
to persons, arising out of use of motor vehicles
or damages of any property of a third party so
arising or both.

40. Section 166 provides that an
application for compensation arising out of an
accident of the nature specified in Section
165(1) may be made and these are:

"(a) by the person who has
sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from
the accident, by all or any of the legal
representatives of the deceased; or

(d) by any agent duly authorized by
the person injured or all or any of the legal
representatives of the deceased, as the case
may be."

41. Section 168 requires Tribunal to
determine amount of compensation which
appears to it, "just" after giving opportunity to
parties including Insurer.

42. Application under Section 166 can
be filed by heirs and legal representatives of
victim, in case of death, and it is not relevant,
whether they are financially dependent upon
the victim or not. Further no other person can
apply for compensation under Section 166, if
he/she does not come within the term "legal
representative" even if he or she is proved to be
financially dependent upon the victim.

43. Term "legal representative" has
not been defined in Act, 1988, therefore,
Court can look into Section 2(11) of Code
of Civil Procedure (hereinafter referred to
as
the
"CPC")
defining
"Legal
Representatives".

44. In Smt. Manjuri Bera vs. The
Oriental
Insurance
Company
Ltd.
(supra) Court held that under Section
2(11) CPC, "legal representative" means a
person who in law represents the estate of
deceased person and includes any person
who inter-meddles with the estate of
deceased and where a party sues or is sued
in a representative character, the person to
whom estate devolves on the death of
party so suing or sued.

45.

Section
166
contemplates
application for compensation which is
commonly called as "claim on fault
2 All. National Insurance Co. Ltd. Vs. Smt. Manju Shukla & Ors.
1057
liability".
The
inter
relationship
of
Sections 163A and 166 was considered in
Deepal Girishbhai Soni and others vs.
United India Insurance Co. Ltd. 2004(5)
SCC 385. Court said that Section 163A is
for grant of immediate relief and award
made thereunder would be in full and final
settlement of claim. It is not interim in
nature.