# National Insurance Company Ltd v. Smt. Vimla Devi & Ors

- **Citation:** (2020) 2 ILRA 1075
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-31
- **Case number:** FAFO No. 1056 of 2014
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-company-ltd-v-smt-vimla-devi-ors-45157
- **Pages:** 5

## Headnote

A. Civil Law-Motor Vehicles Act, 1988 - Ss
166, 168 - Compensation - Determination
of age for multiplier - postmortem report
cannot be an evidence on the basis of
which the age could be determined

In the postmortem report age of the deceased
mentioned as 58 years - Held - Tribunal rightly
determined the age of the deceased on the
basis of the oral testimony in which witnesses
stated the age of the deceased to be 53 yrs.
The postmortem report cannot be an evidence
on the basis of which the age could be
determined (Para 7)

B. Civil Law-Motor Vehicles Act, 1988 - Ss
166, 168 - Compensation - Reasonable
figures on conventional heads, namely,
loss of estate, loss of consortium and
funeral expenses is Rs. 15,000/, Rs.
40,000/ and Rs. 15,000/ respectively
(Para 10)
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
First Appeal From Order partly allowed
(E-5)

List of cases cited :

## Text

2 All. National Insurance Co. Ltd. Vs. Smt. Vimla Devi & Ors.
1075

112. Then, we come to question-
(vii). Here, we do not find much difficulty
in answering the same for the reason that a
Constitution Bench in National Insurance
Company Limited vs. Pranay Sethi
(supra) has directed that reasonable
amount on conventional heads, namely,
loss of estate, loss of consortium and
funeral
expenses
should
have
been
awarded. Court itself has awarded Rs.
40,000/-, Rs. 15,000/- and Rs. 15,000/-,
respectively under the aforesaid heads.

113. Further in Malarvizhi and
Others Vs. United India Insurance
Company Limited and Another (Civil
Appeal No. 9196-97 of 2019 @ SLP (C)
Nos. 9630-31 of 2019) decided on
09.12.2019, Court has awarded under the
head of loss of love and affection Rs.
50,000/-.

114. In view of above, we hold that
claimant-appellant of FAFO-2 is entitled
for compensation in the heads of loss of
dependency
Rs.6,48,000/-;
future
prospects Rs.2,59,200/-; medical expenses
of medical care and medical attendants etc.
Rs.49,46,602/-; loss of profit (loss of
employment), termination of pregnancy
and mental pain, shock etc. Rs.14,60,000/-
and
loss
of
love
and
affection
Rs.1,20,000/-.
Total
comes
to
Rs.74,33,802/-. and it is accordingly
awarded.

115. Judgment and award dated
29.09.2014
passed
by
Tribunal
is
accordingly modified to the above extent
and in respect of all other aspects, it is
confirmed.

116. All the three appeals are
accordingly partly allowed.

117. In view of divided success, cost
is made easy.
----------
(2020)02ILR A1075

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.10.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

FAFO No. 1056 of 2014

National Insurance Company Ltd.
 ...Appellant
Versus
Smt. Vimla Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Manish Kumar Nigam, Sri Suvansit
Kumar Jaiswal

Counsel for the Respondents:
Sri Shree Prakash Singh, Smt. Archana
Singh, Sri Prashant Sharma

A. Civil Law-Motor Vehicles Act, 1988 - Ss
166, 168 - Compensation - Determination
of age for multiplier - postmortem report
cannot be an evidence on the basis of
which the age could be determined

In the postmortem report age of the deceased
mentioned as 58 years - Held - Tribunal rightly
determined the age of the deceased on the
basis of the oral testimony in which witnesses
stated the age of the deceased to be 53 yrs.
The postmortem report cannot be an evidence
on the basis of which the age could be
determined (Para 7)

B. Civil Law-Motor Vehicles Act, 1988 - Ss
166, 168 - Compensation - Reasonable
figures on conventional heads, namely,
loss of estate, loss of consortium and
funeral expenses is Rs. 15,000/, Rs.
40,000/ and Rs. 15,000/ respectively
(Para 10)
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
First Appeal From Order partly allowed
(E-5)

List of cases cited :

1. Sarla Verma Vs. Delhi Transport Corporation
Ltd. AIR 2009 SC 3104
 2.
National Insurance Company Vs. Pranay Sethi
& ors AIR 2017 SC 5157

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri Manish Kumar Nigam,
learned
counsel
for
the
appellantNational Insurance Company and Sri
Prakash Singh, learned counsel for the
claimant-respondents.
Perused
the
record.

2. This appeal has been filed
against the judgement and award dated
09.1.2014 passed in M.A.C.P. No. 177
of 2011 (Smt. Vimla Devi and others Vs.
Balloo and others) by which, the learned
Tribunal has awarded Rs.4,27,000/- as
compensation along with simple interest
at the rate of 7% per anum from the date
of institution of petition.

3. Learned counsel for the appellant
has challenged the said award on the
basis that the age of the deceased was
wrongly determined to be 53 years,
whereas in the postmortem report, it is
mentioned that the age of the deceased
was 58 years, hence multiplier of 11
which was applied by the learned
Tribunal is incorrect and the multiplier
of
9
should
have
been
applied.
Moreover, towards loss of consortium
Rs.1,00,000/- and for funeral expenses
Rs.25,000/- have been awarded which is
not correct in view of the U.P. Motor
Vehicle Amended Rules, 2011 which
provides for consortium from Rs.5,000/-
to Rs.10,000/- and for funeral expenses
Rs.5,000/- which ever is less. As such,
the compensation which was awarded by
the learned Tribunal is excessive and,
therefore, the amount of compensation is
liable to be modified, accordingly.

4. This claim petition came up
before the learned Tribunal on account
of death of the deceased by the accident
caused by the offending vehicle which
was being driven by its driver rashly and
negligently which caused the death of
the deceased as the offending vehicle
went to the wrong side and dashed the
deceased. The claim petition was filed
by the widow, son, daughter and the
mother of the deceased which was
contested by the owner and driver of the
offending vehicle and the same was also
contested by the Insurance Company. On
the basis of the pleadings, the following
issues were framed:-

(1) Whether, the driver of
vehicle
no.
R.J.
20
C.B.1927
on
13.2.2011 at about 4.00 p.m. driving the
vehicle rashly and negligently dashed
Matadeen near Badagaon Bus Stand due
to which Matadeen received serious
injuries and due to that injuries,
Matadeen died?

(2) Whether on the date of
accident, the driver of vehicle no. R.J. 20
C.B.1927 was having valid and effective
license?

(3) Whether on the date of
accident,
the
vehicle
no.
R.J.
20
C.B.1927 was fully insured with the
Insurance Company?

(4)
Whether
the
claimantrespondents
are
entitled
for
compensation? If yes, then how much and
from whom?
2 All. National Insurance Co. Ltd. Vs. Smt. Vimla Devi & Ors.
1077

5. In support, oral evidence was
given by the claimants along with police
papers, such as, FIR, postmortem report,
charge sheet, driving license of driver,
registration certificate of the offending
vehicle and the papers relating to the
insurance. No oral evidence was given
from by the opposite parties nor any
document was filed. On the basis of
evidence on record, after due perusal, the
impugned award was passed by the
learned Tribunal.

6. The learned counsel for the
Insurance Company has agitated the
impugned award on the basis that the
amount awarded for loss of consortium
and against the funeral expenses is
excessive. The second argument is that the
age of the deceased was determined to be
53 years, whereas it should have been 58
years in view of postmortem report. As
such, multiplier applied by the learned
Tribunal was wrong and instead of
multiplier of 11, the multiplier of 9 should
have been applied.

7. So far as second argument is
concerned, the learned Tribunal has
determined the age of the deceased on
the basis of the oral testimony given
from
the
side
of
the
claimantrespondents in which witnesses have
stated the age of the deceased to be 53
years. The postmortem report cannot
be an evidence on the basis of which,
the age could be determined by the
learned Tribunal and, therefore, the
learned
Tribunal
has
rightly
determined the age of the deceased to
be 53 years. The multiplier of 11 has
been applied by the learned Tribunal.
In Sarla Verma Vs. Delhi Transport
Corporation Ltd., AIR 2009 SC 3104,
the Supreme Court has laid down as
below:

"We therefore hold that the
multiplier to be used should be as
mentioned in column (4) of the Table
above (prepared by applying Susamma
Thomas, Trilok Chandra and Charlie),
which
starts
with
an
operative
multiplier of 18 (for the age groups of
15 to 20 and 21 to 25 years), reduced
by one unit for every five years, that is
M-17 for 26 to 30 years, M-16 for 31
to 35 years, M-15 for 36 to 40 years,
M-14 for 41 to 45 years, and M-13 for
46 to 50 years, then reduced by two
units for every five years, that is, M-11
for 51 to 55 years, M-9 for 56 to 60
years, M-7 for 61 to 65 years and M-5
for 66 to 70 years."

8. The above multiplier system
has been further affirmed by the
Supreme Court in National Insurance
Company Vs. Pranay Sethi & others,
AIR 2017 SC 5157 and it cannot be
said that there is any illegality in
applying the multiplier of 11 years as
the available multiplier is of 11 at the
age from 51 to 55 years in view of the
law laid down by the Supreme Court. It
is pertinent to mention that multiplier
system has been provided under law
law
to
maintain
uniformity
in
determining quantum of compensation
in
order
to
avoid
variation.
A
multiplier of 11 has rightly been
applied by the learned Tribunal and I
do not find any illegality in that.

9. In Sarla Verma (supra), it has
been held by the Supreme Court that a
proceeding before the Tribunal is in the
nature of inquiry in which a very few thing
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
is required to be established. The Court
observed:

"Basically only three facts need
to be established by the claimants for
assessing compensation in the case of
death: (a) age of the deceased; (b) income
of the deceased; and the (c) the number of
dependents. The issues to be determined
by the Tribunal to arrive at the loss of
dependency are (i) additions/deductions to
be made for arriving at the income; (ii) the
deduction to be made towards the personal
living expenses of the deceased; and (iii)
the multiplier to be applied with reference
of the age of the deceased."

10. So far as the award of compensation
under the conventional head is concerned of
consortium and funeral expenses is concerned,
in order to maintain uniformity in this respect,
the Supreme Court has made it clear in Pranay
Sethi (supra) that "Reasonable figures on
conventional heads, namely, loss of estate,
loss of consortium and funeral expenses
should be Rs. 15,000/-, Rs. 40,000/- and Rs.
15,000/- respectively." There is no reason
which could afford opportunity for deviation
from the above principle laid down in Pranay
Sethi (supra). As such, the learned counsel for
the appellant has submitted that the said
amount for the loss of consortium is liable to
be reduced to Rs.40,000/- and for the funeral
expenses, the same is liable to be reduced to
Rs.15,000/-. The learned Tribunal has awarded
Rs. 100000/- for loss of consortium, Rs.
25000/- against funeral expenses and Rs.
5000/- for the loss of estate.

11. Learned counsel for the claimantrespondents has submitted that the learned
Tribunal has not considered that the amount
for the loss of estate should be much more in
view of pronouncement of Supreme Court in
Pranay Sethi (supra) and the learned Tribunal
has also not calculated the income in the head
of future prospect and nothing has been
awarded for the loss of affection to the
children.

12. The learned counsel for the appellant
has submitted that if it was so and the
claimant-respondent was feeling that the
awarded amount is in lower side and has not
been properly calculated in view of legal
principles, he should have filed appeal. The
learned counsel for the respondent has
however countered it on the ground that even
if no appeal has been filed, the Court is enough
authorized to correct the amount in the
aforesaid head under Order 41 Rule 33 of the
Civil Procedure Code.

13. It should be noted that the
income which has been determined by the
learned Tribunal is on the basis of the
notional
income
as
the
Tribunal
determined that claimants were not able to
show any income and the finding was
given by the learned Tribunal that the
deceased was not having any income at all.
When this finding has been given that the
deceased was not having any income at all,
it was not necessary for the learned
Tribunal to add any future income as the
future income is only permissible in the
case of income and not in the case of no
income. Therefore, the finding reached by
the Tribunal on that point is not required to
be disturbed. So far as the amount of loss
of estate is concerned, the Tribunal should
have awarded Rs. 15000/-, whereas, only
Rs. 5000/- has been awarded.

14. In view of above, I do not find
any force in other arguments from either
side and with the modification that amount
of
loss
of
consortium
should
be
Rs.40,000/- and funeral expenses should
be Rs.15,000/-. As such an amount of Rs.
2 All. Smt. Shyama @ Rani Tyagi & Ors. Vs. ICICI Lombard General Insurance Co. Ltd., Lucknow & Ors.
1079
70000/- is required to be deducted and
Rs. 10000/- should be added against
the loss of estate in view of the
submission of the learned counsel to
respondent-claimant as the amount for
the loss of estate should be Rs. 15000/-
and not Rs. 5000/- which has been
awarded by the learned Tribunal. Thus,
a deduction of Rs.60,000/- from the
total
amount
of
compensation
is
required to be made.

15. In view of above discussion,
the amount of compensation comes to
Rs.3,67,000/-. With this modification,
the impugned award is upheld and this
appeal is finally disposed.

16. The amount of Rs.25,000/-
deposited by the appellant shall be
remitted back to the Tribunal which
shall be adjusted against the amount of
compensation.
----------
(2020)02ILR A1079

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2019

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

FAFO No. 2711 of 2017

Smt. Shyama @ Rani Tyagi & Ors.
 ...Appellants
Versus
I.C.I.C.I., Lombard General Insurance Co.
Ltd. Lucknow & Ors. ...Respondents

Counsel for the Appellants:
Sri G.C. Maurya, Sri Abhay Kushwaha

Counsel for the Respondents:
Sri Ajeet Kumar Singh, Sri Saurabh
Srivastava
Motor Vehicles Act, 1988 - Ss 166, 168 -
Selection of Multiplier - deceased aged
about 60 years - Operative multiplier is 7
for the age group of 60 - 65 (Para 20)

Appeal Partly allowed (E-5)

List of case cited :

Sarla Verma and others Versus Delhi Transport
Corporation
and
another
reported
2009
Lawsuit(SC) 613

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J).)

1. Heard the learned counsel for the
appellant, learned Standing counsel and
perused the record.

2. By way of the instant appeal, the
appellants have prayed for enhancement of
the compensation amount awarded by the
Tribunal vide its award dated 5.8.2010 in
Motor Accident Claim Petition No.72 of
2008 Smt. Shyama @ Rani and others Vs.
I.C.I.C.I. Lombard General Insurance
Company and others.

3. The claim petition was moved for
and over all compensation amount of Rs. 5
lakhs to be realized from the opposite
parties, whereas, the Tribunal, under the
facts and circumstances of the case,
awarded Rs.1,29,500/- along-with interest
at the simple rate of 6% per annum.

4. The facts relevant for adjudication
of this appeal appear to be that the
accident in question was caused on
17.1.2007
while
driving
rashly
and
negligently motorcycle No. U.P. 60-H
2126 and dashing the same with the
deceased at 7.30 p.m. within village
Bharauli Aala on the southern Gazipur
Ballia Road near culvert leading from