# National Insurance Co. Ltd v. Smt. Vidyawati Devi & Ors

- **Citation:** (2016) 7 ILRA 583
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-27
- **Case number:** Criminal Appeal Nos. 453 and 454 to 459 of 1997
- **Bench:** Krishna Murari, Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-v-smt-vidyawati-devi-ors-44161
- **Pages:** 8

## Text

7 All. National Insurance Co. Ltd. Vs Smt. Vidyawati Devi & Ors.
583

Criminal Appeal Nos. 453 and 454 to 459 of 1997

decided on 20.01.2004"

13. Hence, impugned judgment and order order dated 30.7.2013 passed by the learned
Special Judge (E.C. Act)/ Additional Sessions Judge, Allahabad, in Criminal Revision No. 48 of
2013 (State of U.P. vs. Mahendra Prasad Ram) suffers from no illegality or infirmity and therefore,
no interference is warranted at this stage.

14. Resultantly, in view of the above analysis, this instant criminal revision is liable to be
dismissed.

15. The criminal revision is, accordingly, dismissed.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2016

BEFORE

THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J.

First Appeal From Order No.- 2389 Of 2016

National Insurance Co. Ltd. ...Appellant
Versus
Smt. Vidyawati Devi & Ors. ...Respondents

Counsel for Appellant:
Rajeev Ojha

Counsel for Respondents:
S.D.Ojha.

Motor Vehicles Act, 1988 - Section 173; Code of Civil Procedure, 1908 - Order XLI Rule 33; U.P.
Motor Vehicles Rules, 1998 - Rule 220A (as amended w.e.f. 26.09.2011); Indian Penal Code,
1860 - Sections 279, 338, 427, 304-A.

1. Motor Vehicles Act, 1988 - Section 173 - Motor Accident - Involvement of Offending Vehicle -
Correction of Registration Number in Charge-Sheet - Effect of.
Where the First Information Report was lodged against an unknown vehicle and the registration number of
the offending vehicle mentioned in the charge-sheet was subsequently corrected by the Investigating Officer
upon seeking permission from the competent court after detection of a clerical/typographical error, such
correction does not cast doubt on the involvement of the offending vehicle in the accident. When the
occurrence of the accident and the identity of the offending vehicle stand duly proved by the unshaken
testimony of an eye-witness who had noted the registration number of the vehicle at the spot, a mere
584 INDIAN LAW REPORTS ALLAHABAD SERIES

arithmetical or clerical error in the charge-sheet that was duly corrected through proper legal process cannot
be made the basis for holding that the offending vehicle was not involved in the accident.

2. Motor Vehicles Act, 1988 - Compensation - Notional Income - Skilled Worker - Mason -
Quantum.
In the absence of documentary evidence to prove the income of the deceased, the Tribunal is empowered to
fix notional income on the basis of the nature of work performed by the deceased. Determination of notional
income of Rs. 4,500/- per month (i.e., Rs. 150/- per day) for a deceased skilled mason in the year 2013 is
neither excessive nor unreasonable, having regard to the general rise in the price index and wages of skilled
labour. Courts must take judicial notice of prevailing wage rates and must not demand strict documentary
proof in motor accident compensation cases.

3. Motor Vehicles Act, 1988 / U.P. Motor Vehicles Rules, 1998 - Rule 220A - Future Prospects -
Self-Employed Person - Addition of 50% - Permissibility.
Rule 220A of the U.P. Motor Vehicles Rules, 1998, as amended with effect from 26.09.2011, provides for
addition towards future prospects without drawing any distinction between salaried employees and selfemployed persons. Accordingly, 50% of the notional income is mandatorily to be added towards future
prospects in the case of deceased below the age of 40 years regardless of the nature of his employment. This
position is also in conformity with the principles enunciated by the Supreme Court in Rajesh & Others v. Rajbir
Singh & Others, (2013) 9 SCC 54, as affirmed by the three-Judge Bench in Munna Lal Jain & Another v. Vipin
Kumar Sharma & Others, 2015 (3) TAC 1 (SC). The pendency of a reference on this issue before a larger
Bench does not affect the binding efficacy of the aforesaid decisions unless and until a contrary judgment is
rendered by the larger Bench.

4. Code of Civil Procedure, 1908 - Order XLI Rule 33 - Power of Appellate Court - Enhancement
of Compensation in Appeal Filed by Insurance Company - Maintainability Without Cross-Appeal.
The power conferred upon an appellate court under Order XLI Rule 33, C.P.C. is wide and discretionary. The
appellate court can pass any decree or make any order which ought to have been passed or made, even in
favour of respondents who have not filed any cross-appeal or objection. The only constraints are: (i) that the
parties before the lower court should also be before the appellate court; and (ii) the question raised must
properly arise out of the judgment of the lower court. When compensation awarded under conventional heads
such as funeral expenses, pain and suffering, and loss of estate is clearly inadequate and below the minimum
prescribed by the Supreme Court, the appellate court is not only empowered but duty-bound to enhance the
same even in an appeal filed solely by the insurance company, in the interest of complete justice.

5. Motor Vehicles Act, 1988 - Non-Pecuniary Damages - Conventional Heads - Funeral Expenses
- Pain and Suffering - Loss of Estate - Enhancement.
In light of the principles laid down by the Supreme Court in Rajesh & Others v. Rajbir Singh & Others, (2013)
9 SCC 54, and Kalpanaraj & Others v. Tamil Nadu State Transport Corporation, 2014 (3) TAC 707 (SC),
compensation under conventional heads must be just and reasonable and must be periodically revisited to
account for inflation. Amounts of Rs. 5,000/- towards pain and suffering, Rs. 2,500/- towards funeral
expenses, and Rs. 5,000/- towards loss of estate, being grossly inadequate, were enhanced to Rs. 25,000/-,
Rs. 50,000/-, and Rs. 25,000/- respectively, enhancing the total compensation from Rs. 7,01,000/- to Rs.
7,88,500/- along with simple interest @ 7% per annum from the date of application till actual payment.

Result: Appeal dismissed. Award modified and compensation enhanced from Rs. 7,01,000/- to
Rs. 7,88,500/- with interest @ 7% p.a. No order as to costs.

Cases Referred:
1. Rajesh & Others v. Rajbir Singh & Others, (2013) 9 SCC 54 - Applied.
7 All. National Insurance Co. Ltd. Vs Smt. Vidyawati Devi & Ors.
585
2. Munna Lal Jain & Another v. Vipin Kumar Sharma & Others, 2015 (3) TAC 1 (SC) - Applied.
3. Kalpanaraj & Others v. Tamil Nadu State Transport Corporation, 2014 (3) TAC 707 (SC) -
Applied.
4. Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54 - Referred.
5. Delhi Electric Supply Undertaking v. Basanti Devi, AIR 2000 SC 43 - Referred.
6. National Insurance Company v. Smt. Pushpa Devi & Others, 2015 (9) SCC 166 - Distinguished.
7. Shashikala & Others v. Gangalakshmamma & Another, 2015 (2) T.A.C. 867 (S.C.) -
Distinguished.

(Delivered by Hon'ble Krishna Murari, J.
&
Hon'ble Dr. Kaushal Jayendra Thaker, J.)

1. Heard Sri Rajeev Ojha, learned counsel for the appellant and Sri S. D. Ojha appearing
for the claimant-respondents.

2. This appeal under Section 173 of the Motor Vehicles Act has been filed by the National
Insurance Company challenging the award dated 16.04.2016 passed by the Motor Accident Claims
Tribunal/Additional District Judge (Court no. 8), Azamgarh awarding a sum of Rs.7,01,000/- along
with 7% interest as compensation on account of death of one Dhananjay in a motor accident.

3. Claim petition was filed by the mother of deceased seeking compensation to the tune of
Rs.44,27,000/- on the allegation that on 05.12.2013 when deceased Dhananjay was coming back
home on motorcycle bearing registration no. UP-45-C/3782 along with Shashank Singh after
visiting some relatives in village Katra at about 04:30 PM near Singhpur Pulliya, Mahendra Jeep
No. UP-50-F/4254, which was being driven rashly and negligently, hit the motorcycle from behind
which caused grievous injuries to Dhananjay and he died on spot. Driver of the motorcycle died
while being taken to Sadar hospital for treatment. It was further pleaded that deceased was skilled
mason and was earning about Rs.13,000/- per month.

4. Proceedings were contested by the owner and driver of the offending vehicle by filing
written statement denying the allegation. It was pleaded that vehicle has wrongly been roped in the
accident in connivance with Police. It was further pleaded that vehicle was insured by the National
Insurance Company and in case there is any liability to pay the compensation, the same is that of
insurance company. Insurance company also contested the proceedings by filing written statement
denying the allegations made in the claim petition.

5. On analysis of the pleadings and evidence, both oral and documentary, produced by the
parties, the tribunal returned a finding that accident was caused due to rash and negligent driving of
the offending Mahendra Jeep which resulted in death of Dhananjay. That finding has been recorded
by the tribunal on the basis of oral evidence of P. W. '2' Virendra Kumar Singh, who was eyewitness of the accident. He stated that on the fateful day he was going back home on his motorcycle
and was moving behind the motorcycle on which deceased was travelling, he saw the offending
Jeep, which was being driven rashly and negligently, hit the motorcycle from behind. He
586 INDIAN LAW REPORTS ALLAHABAD SERIES

categorically stated that accident took place before him and was a result of rash and negligent
driving of the offending vehicle. He also stated that after hitting the motorcycle, driver along with
Jeep fled away from the scene. In cross-examination, he stated that he saw the number of offending
jeep though he did not know the name of driver. Eye-witness not only corroborated the mode and
manner of the accident but his testimony was unshakable during cross-examination and thus, the
tribunal rightly placed relied upon him in recording the finding on issue no. 1. Tribunal further
found that driver of offending jeep was having a valid driving license and was duly insured with the
insurance company and was having all valid documents.

6. On the question of quantum, in the absence of any documentary evidence to prove the
income, tribunal presumed notional income of Rs.4500/- per month and since the deceased was
unmarried after deducting 1/2 towards personal expenses determined the monthly income for the
purpose of compensation Rs.2250/-. On the basis of date of birth mentioned in the driving license
of the deceased, tribunal determined the age 24-25 years and accordingly after applying multiplier
of 17 determined the loss of dependency to the tune of Rs.4,59,000/-. Tribunal also awarded 50%
of the annual income towards future prospects, Rs.5000/- towards pain and suffering, Rs.2500/-
towards funeral expenses and Rs.5000/- towards loss of estate. In this manner, total compensation
of Rs.7,01,000/- was determined by the tribunal.

7. Learned counsel for the appellant contends that first information report was lodged
against an unknown vehicle and when the claim petition was filed, number of vehicle was
mentioned as UP-32-Z/1370 and in the charge-sheet submitted against the driver of the offending
jeep, number was mentioned as UP-50-F/4252. It is submitted that later on number of the offending
jeep in the charge-sheet was changed from UP-50-F/4252 to UP-50-F/4254 and thus, there was
serious doubt about the involvement of the offending vehicle in the accident.

8. In reply, learned counsel for the claimant-respondents submitted that on account of
typographical and clerical mistake wrong registration number of the offending vehicle was
mentioned in the charge-sheet which was lateron corrected by the Investigating Officer after
seeking permission from the court and accordingly incorporated the amendment in the case diary.

9. On analysis of the finding recorded by the tribunal, we find that first information report
of the incident was registered on 05.12.2013 against an unknown vehicle which was registered as
case crime no. 321 of 2013, under Sections 279/338/427/304-A IPC, Police Station Jahanaganj,
Azamgarh. The driver of the offending vehicle was arrested and later on he obtained bail. However,
when charge-sheet was submitted due to inadvertent clerical mistake, the number of offending
vehicle was mentioned as UP-50-F/4252. However, subsequently when the said mistake was
detected, Investigating Officer made an application before the court concerned seeking permission
for amendment in the charge-sheet and accordingly the correct number UP-50-F/4254 was
mentioned. Tribunal found the aforesaid fact to be well supported from the case diary. Once the
accident was found to be proved by testimony of eye-witness who also disclosed the number of
offending vehicle merely because by clerical mistake incorrect registration number was mentioned
7 All. National Insurance Co. Ltd. Vs Smt. Vidyawati Devi & Ors.
587
in the charge-sheet which later on was corrected cannot lead to conclusion that offending vehicle
was not involved in the accident.

10. In such view of the mater, we do not find any force in the argument advanced by the
learned counsel for the appellant in this regard.

11. Second argument advanced on behalf of the learned counsel for the appellant is that
amount of compensation awarded is highly excessive and there was no evidence that the deceased
was earning Rs.4500/- per month. It is also submitted that 50% of the income towards future
prospect could not have been added because deceased had was not in any permanent employment
but was a self employed person. Both the aforesaid arguments advanced are totally devoid of
merits. It is a matter of common knowledge that with the rise in price index, there has been
considerable increase in the wages of salaried as well as self employed person. For a mason, who
performs a skilled job an average income of Rs.150/- per day in the year 2013 when accident took
place can, by no stretch of imagination, be said to be on higher side.

12. In so far as addition of 50% towards future prospects is concerned, the same is also not
liable to be sustained. Rule 220A introduced by way of amendment in the U.P. Motor Vehicles
Rules, 1998 with effect from 26.9.2011 providing that future prospects of a deceased shall be added
in the actual salary or minimum wages of the deceased as under :

(I) Below 40 years of age : 50% of the salary,

(ii) Between 40-50 years of age : 30% of the salary,

iii) More than 50 years of age : 20% of the salary,

(iv) When wages not sufficiently proved : 50% towards inflation and price
index.

13. The aforesaid Rule does not carve out any distinction between salaried and self
employed person. Further grant of future prospects by adding 50% of the income is in conformity
with the principles laid down by the Hon'ble Apex Court in the case of Rajesh & others vs. Rajbir
Singh & others, (2013) 9 SCC 54. The same has been affirmed by another three Judge Bench of
the Hon'ble Apex Court in the case of Munna Lal Jain & another vs. Vipin Kumar Sharma &
others, 2015 (3) TAC 1 (SC).

14. It is no doubt correct that issue with respect to grant of future prospects has been
referred to a larger Bench for adjudication in the case of National Insurance Company v. Smt.
Pushpa Devi & others, 2015(9) SCC 166 and Shashikala and others vs. Gangalakshmamma and
another, 2015 (2) T.A.C. 867 (S.C.). But equally settled is the proposition that unless an
adjudication by a larger Bench is pronounced, the judgement, which has been referred, does not
loose its efficacy and continues to have all the binding force. In such view of the matter, the view
588 INDIAN LAW REPORTS ALLAHABAD SERIES

taken by the three Judges Bench of the Hon'ble Apex Court in the case of Munna Lal Jain (supra) and
Rajesh (Supra) still holds good. Thus, addition of 50% income towards future prospects awarded by the
Tribunal cannot be faulted with.

15. At this stage, Sri S. D. Ojha, learned counsel for the claimant-respondents submitted that amount
awarded by the tribunal towards funeral expenses, pain and suffering and loss of estate is too meagre and is
liable to be enhanced.

16. A perusal of the award goes to show that tribunal has awarded a sum of Rs.5000/- towards pain
and suffering, Rs.2500/- towards funeral expenses and Rs.5000/- towards loss of estate.

17. Countering the aforesaid argument advanced on behalf of the claimant-respondents, learned
counsel for the appellant submitted that amount of compensation cannot be increased in an appeal filed by
the insurance company in the absence of cross appeal or objection filed by the claimant-respondents. Since
no cross appeal or objection has been filed by the claimant seeking enhancement of compensation, the Court
has no power to enhance the same in an appeal filed by the insurance company.

18. Order XLI Rule 33 of the Code of Civil Procedure prescribing the power of court of appeal
clearly provides that the Appellate Court shall have power to pass any decree and make any order which
ought to have been passed or made as the case may require, and this power may be exercised in favour of all
or any of the respondents or parties though they may not have filed any cross appeal or objection. Order XLI
Rule 33 of the Code reads as under :

"33. Power of Court of Appeal - The Appellate Court shall have power to pass any
decree and make any order which ought to have been passed or made and to pass or make such further or
other decree or order as the case may require, and this power may be exercised by the Court notwithstanding
that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents
or parties, although such respondents or parties may not have filed any appeal or objection [any may, where
there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in
respect of all or any of the decrees, although an appeal may not have been filed against such decrees]

[Provided that the Appellate Court shall not make any order under Section 35A, in
pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or
refused to make such order.]

19. The provisions of Order XLI Rule 33 C.P.C. was explained by the Hon'ble Apex Court in the
case of Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54 in following words :

"The sweep of the power under Rule 33 is wide enough to determine any question not only
between the appellant and respondent, but also between respondent and co-respondents. The appellate Court
could pass any decree or order which ought to have been passed in the circumstances of the case. The
appellate court could also pass such other decree or order as the case may require. The words "as the case
may require" used in Rule 33 Order 41 have been put in wide terms to enable the appellate Court to pass any
7 All. National Insurance Co. Ltd. Vs Smt. Vidyawati Devi & Ors.
589
order or decree to meet the ends of justice. What then should be the constraint ? We do not find many. We
are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could
see, may be these : That the parties before the lower Court should be there before the appellate Court. The
question raised must properly arise out of the judgment of the lower Court. If these two requirements are
there, the appellate Court could consider any objection against any part of the judgment or decree of the
lower Court. It may be urged by any party to the appeal. It is true that the power of the appellate Court under
Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in
order to render complete justice between the parties. The Court should not refuse to exercise that discretion
on mere technicalities."

20. The same view has again been reiterated in a later decision by the Hon'ble Apex Court in the
case of Delhi Electric Supply Undertaking v. Basanti Devi, AIR 2000 SC 43.

21. We are of the considered view that the conditions as laid down in provisions of Order XLI Rule
33 are satisfied in the present case. In Delhi Electric Supply Undertaking (Supra) the Hon'ble Apex Court has
observed that when circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the
court cannot be found wanting when it comes to exercise its powers.

22. Thus the argument in this regard made by the learned counsel for the appellant has no legs to
stand and is not liable to be sustained.

23. Hon'ble Apex Court has laid down the principles to be followed while awarding compensation
under non-pecuniary damages, such as loss of consortium, loss of love, care and guidance to children and
funeral expenses. In the case of Rajesh and others v. Rajbir Singh and others, (2013) 9 SCC 54 and
Kalpanaraj and others vs. Tamil Nadu State Transport Corporation, 2014(3) TAC 707(SC) Hon'ble Apex
Court has held that guiding principle for determining compensation is that it must be just and reasonable and
the Court should not succumb to niceties or technicalities, in such matters while considering the issue of
award of compensation under non-pecuniary damages such as loss of consortium, loss of love, care and
guidance to children and funeral expenses. It has been observed in paragraph 17 as under:

"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-economic 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 practise of awarding compensation under conventional heads:
loss of consortium to thee spouse, loss of love, care and guidance to children and funeral expenses. It may be
noted that the sum of Rs. 2500 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 10,000. 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 State of America,
590 INDIAN LAW REPORTS ALLAHABAD SERIES

Australia, etc. English courts have also recognized 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 court awards at least rupees one lakh for loss of consortium."

24. The same view has been reaffirmed in the case of Kalpanaraj and others (supra). In the said
case, Hon'ble Apex Court raised compensation of Rs.30,000/- awarded towards loss of consortium and
Rs.20,000/- towards loss of love and affection of the minor children to Rs.1,00,000/- each under the said
heads finding the sum awarded to be on the lower side in the light of principles laid down in the case of
Rajesh (supra).

25. In view of the aforesaid law laid down by the Hon'ble Apex Court, we feel that the claimants are
entitled to be awarded a sum of Rs.50,000/- towards funeral expenses, another sum of Rs. sum of Rs.25,000/-
for pain and suffering and Rs.25,000/- towards loss of estate.

26. In view of the above, we are of the considered opinion that compensation awarded to the
claimants is liable to be raised by a sum of Rs.1,00,000/- and they are entitled to be awarded a total sum of
Rs.7,88,500.00 as compensation along with simple interest at the rate of 7% per annum from the date of
making application till the date of actual payment. The amount already paid to the claimant shall be adjusted.
Interest payable shall also be calculated accordingly.

27. As a consequence of the aforesaid facts and discussions, appeal filed by the insurance company
stands dismissed but the award stands modified to the extent directed above.

28. In the facts and circumstances, we do not make any order as to costs.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2016

BEFORE

THE HON'BLE BHARAT BHUSHAN, J.
THE HON'BLE ALOK KUMAR MUKHERJEE, J.

Criminal Appeal No.- 2461 Of 1983

Rajpal Singh ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant: