# Preetam Singh Defendant/ v. Smt. Urmila Devi & Ors

- **Citation:** (2023) 2 ILRA 228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-19
- **Case number:** FAFO No. 1111 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/preetam-singh-defendant-v-smt-urmila-devi-ors-49644
- **Pages:** 13

## Headnote

A. Civil Law - Motor Vehicles Act, 1988Section 168-Compensation-determination
of income of deceased-deceased was aged
about 25 years and he had tea shopdocumented records of his income cannot
be expected-For a person whose age
below 40 years, Rule 220-A(3) prescribes
50% to be added to his income towards
future prospects-the tribunal considered
her income Rs. 4500 per month but has
not granted future loss of income-the
deceased
was
survived
by
four
dependents-Total compensation would be
Rs. 11,22,000/- and rate of interest would
be 7% per annum.(Para 1 to 36)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,895 of 42,158. This is a partial read: ask again with offset=39895 for what follows._

228 INDIAN LAW REPORTS ALLAHABAD SERIES
Another, 2017 (1) TAC 259 (SC) &
Mayan vs. Mustafa and another, 2022
ACJ 524 also, the Apex Court has held that
under
Section
30
of
Workmen
Compensation Act, the High Court cannot
enter into the arena of facts unless they are
proved to be perverse and the Court cannot
interfere unless there is a question of law
involved. The decision in Salim vs. New
India Assurance. Co. Ltd. and another,
2022 ACJ 526 also will not permit this
Court to interfere with the well reasoned
judgment of learned Commissioner.

11. In view of the above, both these
appeals fail and stand dismissed.

12. The amount kept in fixed deposit
be disbursed to the claimants forthwith.
----------
(2023) 2 ILRA 228
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2023

BEFORE

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

FAFO No. 1111 of 2019
With
FAFO No. 2886 of 2011

Preetam Singh ...Defendant/Appellant
Versus
Smt. Urmila Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Ram Singh

Counsel for the Respondents:
Deepali Srivastava Sinha, Sri Amit Kumar
Sinha, Sri Siddharth Jaiswal, Sri Vidya Kant
Shukla

A. Civil Law - Motor Vehicles Act, 1988Section 168-Compensation-determination
of income of deceased-deceased was aged
about 25 years and he had tea shopdocumented records of his income cannot
be expected-For a person whose age
below 40 years, Rule 220-A(3) prescribes
50% to be added to his income towards
future prospects-the tribunal considered
her income Rs. 4500 per month but has
not granted future loss of income-the
deceased
was
survived
by
four
dependents-Total compensation would be
Rs. 11,22,000/- and rate of interest would
be 7% per annum.(Para 1 to 36)

The appeal is partly allowed. (E-6)

List of Cases cited:
1. Smt. Dulara & ors. Vs U.P.S.R.T.C thru Reg.
Mgr. & anr.. F.A.F.O. No. 2887 of 2011

2. OIC Ltd. Vs Smt. Shashi Devi & ors. (2015)
SCC Online All 8594

3. Sarla Verma (Smt.) Vs DTC & anr. (2009) 6
SCC 121

4. NIC Vs Pranay Sethi & ors.(2017) 16 SCC 680

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

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

7. Magma Gen. Ins. Co. Ltd. Vs Nanu Ram
@Chuhru Ram & ors.(2018) 18 SCC 130

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

1. This judgement will dispose of
FAFO No. 1111 of 2019 and FAFO No.
2886 of 2011.

2. Both the appeals relate to the same
accident and arise out of the same
impugned judgment and award dated
24.02.2011 passed by the Motor Accident
Claims Tribunal / Additional District
Judge, Court No. 14, Allahabad rendered in
MACP No. 657 of 2008. Accordingly, both
2 All. Preetam Singh Vs. Smt. Urmila Devi & Ors.
229
the appeals are being decided by this
common judgment .

3. FAFO No. 1111 of 2019 shall be
treated as the leading case and facts noticed
from the said appeal. It must be mentioned
at the outset that the leading appeal is by
the owner upon whom liability to satisfy
the impugned award has been fastened. The
appeal seeks to absolve the owner and shift
liability upon the Insurance Company. The
connected appeal, that is to say, FAFO No.
2886 of 2011 has been preferred by the
claimants seeking enhancement of the
compensation awarded.

4. Heard Mr. Ram Singh on behalf of
the appellant-owner, Mr. Siddharth Jaiswal,
learned Advocate appearing on behalf of
the respondent No. 4, the Insurance
Company and Mr. Amit Kumar Sinha,
learned Counsel appearing for the claimantrespondents.

5. Hereinafter, the appellant-owner
shall be called ''the owner', the Insurance
Company, ''the insurers', and the claimantrespondents, ''the claimants'.

6. In the connected appeal, Mr. Amit
Kumar Sinha, learned Counsel has been
heard on behalf of the claimants in support
of the appeal, Mr. Siddharth Jaiswal,
Advocate, on behalf of the insurers and Mr.
Ram Singh, learned Counsel for the owner.

7. The facts giving rise to the appeal
are these: On August, the 22nd, 2008 at
1.30 P.M., one Ram Chandra alias Babu
Lal Yadav, a man of 25 years, was riding a
Honda
motorcycle
bearing
No.
UP70AL/4090. Rajesh Yadav was on the
pillion. The two were proceeding from
Mansurabad to Lal Gopal Ganj on the
Allahabad-Lucknow Highway. As the two
reached
Khuda
Baksh
ka
Pura
(Shringverpur), a roadways bus approached
from the Lucknow end of the highway. It
was a vehicle held on contract, bearing
registration No. UP53T/7042. It was driven
rashly and negligently. The bus struck the
motorcycle, leading the rider and the pillion
to sustain injuries. Both the injured were
carried to the Swaroop Rani Nehru,
Hospital, Allahabad, where they were
admitted for necessary medical attention.
Ram Chandra succumbed to his injuries,
whereas the pillion rider, Rajesh Yadav
was in a critical condition, whose right leg
was
fractured
and
grievous
injuries
sustained to his head. About this incident,
the deceased Ram Chandra's father lodged
a First Information Report with P.S.
Nawabganj, Allahabad, that was registered
as Crime No. 28 of 2008, under Sections
279, 337, 338, 304A IPC. At the time of his
demise, the deceased was aged about 25
years and had established a shop selling
sweets and tea. It is the claimants' case that
the deceased by his exertions would earn
about Rs. 7,000/- per mensem. The
claimants are the deceased's widow, father,
mother and a child born posthumously. The
claimants petitioned the Tribunal under
Section 166 of the Motor Vehicles Act,
1988 (for short, ''the ''Act') seeking
compensation in the sum of Rs. 10 lacs
with interest.

8. The opposite party No. 1 to the
claim petition, ''the owner' of the vehicle,
who is the appellant here, put in a written
statement and denied the allegations in the
petition. It is averred in the additional plea
that the offending vehicle was insured with
the insurers,vide Cover Note No.343637
valid and effective from 23.7.2008 to
22.7.2009. The insurers have been asserted
to be answerable regarding any claim that
may be decreed against the owner relating
230 INDIAN LAW REPORTS ALLAHABAD SERIES
to the accident caused by the offending
vehicle. It was asserted that on the date and
time of the accident, the vehicle was being
driven by Mohd. Saleem son of Sri Sabir
Ali, who held a valid driving licence to
drive the vehicle. The licence held by the
driver
bears
No.
M08621/LKW/2005
issued on 10.9.1979. It was valid from
11.6.2007
to
10.6.2010.
The
fitness
certificate relating to the offending vehicle
was valid from 3.8.2008 to 2.8.2009. On
the date and time of the accident, the
offending
vehicle's
route
permit,
registration certificate were all valid,
besides the fact that all requisite taxes were
paid up therefor. It is then pleaded on
behalf of the owner that the offending
vehicle never caused the accident nor the
driver thereof committed any negligence in
the alleged accident. No one sustained any
injury nor died in consequence of injury
received. The claimants were blamed for
instituting the claim petition on twisted
facts and suppressing the correct ones,
rendering the petition one fit to be rejected.
The offending vehicle was being operated
in
accordance
with
the
terms
and
conditions of the insurance policy, and that,
in the event, the Court was of opinion that
the claimants are entitled to receive
compensation, the burden thereof would
rest on the Insurers' shoulders.

9. A separate written statement was
filed on behalf of the Insurers, who too
generally denied the allegations in the
claim petition. It was averred in the written
statement that the deceased met his fate on
the date and time of the accident on
account of his own negligence. There was
no negligence of the bus driver. It is the
Insurers' case that there was no evidence of
the deceased sustaining fatal injuries in the
accident on the date and time of the
accident alleged. It is also averred that the
claimants have not produced documentary
evidence to establish the deceased's age,
profession and income. The deceased was
an unemployed youth, who had no income
of
his
own.
The
claimants,
before
instituting the petition and after the
accident, never demanded compensation
from the Insurers. In case, demand had
been raised, the Insurers would have got
facts investigated soon after the accident
and proceeded in accordance with law. It is
also the Insurers' case that the accident did
not involve the offending vehicle, but some
other motor vehicle.

10. On the pleadings of parties, the
Tribunal framed the following Issues:-

"1. Whether on 22.8.2008 at
about 1.30 in the afternoon, the driver of
Bus
No.UP-53T/7042,
driving
it
negligently and at a high speed, on the
Allahabad-Lucknow Highways, within the
limits of village Khudabaksh Ka Pura
(Shringverpur), falling under Police Station
Nawabganj,
hit
Motorcycle
No.UP70A.L./4090, that was proceeding on its
side at a slow speed, in consequence
whereof the rider of the motorcycle, Ram
Chandra Yadav @ Guddu son of Sri Babu
Lal Yadav died?

2. Whether on the date and time
of the accident, the driver of aforesaid Bus
No.UP-53T/7042 held a valid and effective
driving licence?

3. Whether on the date and time
of the accident, Bus No.UP-53T/7042 was
insured
with
the
Oriental
Insurance
Company?

4.
Whether
the
rider
of
Motorcycle No.UP-70A.L./4090 too had
contributory negligence in the accident in
question? If yes, its effect?

5. Whether the claimants, who
are the dependents of the deceased, are
2 All. Preetam Singh Vs. Smt. Urmila Devi & Ors.
231
entitled to compensation? If yes, how much
and from which opposite party?"

11. On behalf of the claimants, Smt.
Sarita Yadav, the deceased's wife, was
examined as PW-1, Munnu Lal Yadav was
examined as PW-2 and Rajesh Kumar
Yadav as PW-3. The claimants produced
documentary evidence as well, which
includes a xerox copy of the First
Information Report and a list of documents,
paper
No.18-C,
photostat
copies
of
documents
relating
to
the
offending
vehicle, including the driver's driving
licence, fitness certificate and registration
certificate. Through another list, paper
No.23-Ga, a copy of the FIR, a copy of the
charge sheet filed against the driver of the
offending vehicle, the technical inspection
report relating to the offending vehicle, site
plan and a certified copy of deceased's
autopsy report have been filed.

12. On behalf of the owner and the
Insurers, no witness was examined nor any
document produced.

13. The Tribunal held on Issue No.1
in favour of the claimants recording a
finding that the accident occurred on
account of negligent driving by the driver
of the offending vehicle. On Issue No.4, the
finding was that the accident happened
solely on account of negligence of the
driver of the offending vehicle with no
contributory negligence by the deceased.
On Issue Nos. 2 and 3, there are findings
that the driver of offending vehicle held a
valid and effective driving licence on the
date and time of the accident, and likewise,
the offending vehicle was covered by a
valid insurance policy on the fateful day
and time. The Tribunal while deciding
Issue No.5 has recorded a very brief
finding tucked away somewhere between
words, validating all other documents for
the offending vehicle but the fitness
certificate that was valid from 3.8.2005 to
2.8.2007. Since the accident occurred on
22.8.2008, it was held that there was no
valid fitness certificate on the date of
accident. The Tribunal held that there was a
breach of the insurance policy and held the
owner
liable
to
make
good
the
compensation. There is a remark during the
course of discussion on Issue No. 5 that on
the date of accident, the driver of the
offending vehicle did not hold a valid and
effective driving licence and, therefore, the
owner is liable. The said remark appears to
be the result of an apparent mistake
because the finding returned on Issue No. 2
is categorical and clear that on the date and
time of the accident the driver of the
offending vehicle held a valid and effective
driving licence. Read together with the
finding in the earlier part of discussion on
Issue No. 5, the Tribunal appears to have
confounded the invalid fitness certificate
for the driving licence.

14. This Court, therefore, proceeds on
the basis that the Tribunal has exonerated
the Insurers for the lack of a fitness
certificate. Before this Court, the owner
moved an application under Order XLI
Rule 27 of the Code of Civil Procedure, or
on principles analogous to that provision,
seeking to bring on record additional
evidence. This includes a certified copy of
the judgment and award dated 27.8.2015
passed by the Motor Accident Claims
Tribunal/Additional District Judge, Court
No.13, Allahabad in MACP No.415 of
2011, holding the Insurers liable. This
award has been brought on record, because
it relates to the same accident as the one
involved here and arises out of the claim
preferred by the injured-victim of the
accident, Rajesh Kumar Yadav. In that
232 INDIAN LAW REPORTS ALLAHABAD SERIES
case, all the documents relating to the
offending vehicle, including the fitness
certificate, were held to be there and no
breach of policy by the Insurers was found.
In addition, a xerox copy of the fitness
certificate relating to the offending vehicle
has also been brought on record. The
certified copy of the award and a xerox
copy of the fitness certificate relating to the
offending vehicle, showing it to be on
certified fitness from 3.8.2008 to 2.8.2009,
issued
by
the
Regional
Inspector
(Technical), have been annexed to the
application for additional evidence. The
application was allowed vide order dated
11.7.2022 and the two documents were
admitted
without
objection.
Those
documents have been marked as Exhibit-1
and Exhibit-2, respectively, and made part
of the record.

15. In view of the fact that Exhibit-2
shows that the offending vehicle had a
valid fitness certificate for the period
03.08.2008
to
02.08.2009,
there
is
absolutely no basis to exonerate the
insurers of their liability on the Insurance
Policy for the breach of its terms.

16. This Court, accordingly, finds that
the appeal by the owner ought to succeed
and the insurers held liable to satisfy the
award.

17. Now, this Court may take up
FAFO No. 2886 of 2011, preferred on
behalf of the claimants.

18. In this appeal, there is no other
Issue involved, except the one relating to
the quantum.

19. The claimants are the widow,
father and the mother of the deceased, Ram
Chandra alias Guddu. The first relevant fact
to be determined is the deceased's monthly
income. About the deceased's income, there
is on record the testimony of his widow,
P.W. 1, Smt. Sarita Yadav. In her
examination-in-chief, P.W. 1 has said that
at the time of his demise, her husband was
aged 25 years. He had a shop vending tea,
betel and sweets. The shop was located in
the Mansurabad Bazar. The shop was
housed in a rented premises. The shop was
running for a time period of 4-5 years antedating the accident. According to the
witness, the deceased would earn about Rs.
5,000/- to Rs. 6,000/- per month.

20. The untimely demise of the
witness's husband has left the widow
without financial support. It has figured in
her evidence that the deceased's father and
mother were also dependent upon his
income. There is a mention about a
posthumous child being also born to
parties, but for whatever reasons, there is
no claim on his behalf. The insurers have
cross-examined this witness, who had
knowledge about the deceased's income
and said in her cross-examination that he
would save Rs. 6,000/- to Rs. 7,000/- per
month. This Witness has also said that
there were no accounts kept and what she
was saying, was on the basis of estimation.
The Tribunal has disbelieved the claimants'
case about the deceased's income, being Rs
5,000/- - 6,000/- or Rs. 7,000/-. Despite the
testimony of his widow, the Tribunal has
opined that given the entire circumstances
of the deceased, the deceased can be
credited with a monthly income of Rs.
2,000/-.

21. This Court must remark that the
Tribunal's opinion about the deceased's
income being a humble sum of Rs. 2,000/-
is way off the mark. It is no fair estimation
of the deceased's income contemporaneous
2 All. Preetam Singh Vs. Smt. Urmila Devi & Ors.
233
in time, when the accident happened. The
Tribunal's assessment about the deceased's
income is based on a long-standing notion
in society that it is only the State borne
salaries earned by Government employees
that can offer a dependable source of
income.

22. These opinions are generally held
because much income that is generated in
the unorganized sector does not get
recorded the way it is in Government
services or more organised employments,
but, that does not mean that for selfemployed
persons
working
in
the
unorganized sector, the Court should adopt
a pessimistic view about their contributions
to the nation's GDP. The deceased was
running a shop vending tea, betel and
sweets in Mansurabad market. There is
evidence on record, unimpeached that the
shop was running there for 4-5 years antedating his demise in the fateful accident.
The deceased was supporting a family of
three, besides himself. Going by the
contemporary price index prevalent at the
time, the income found for the deceased by
the Tribunal cannot be countenanced.

23. It has also to be noted that for a
self-employed person like the deceased, at
the scale that he was working, it is difficult
to expect documented records about his
income. I had occasion to consider this
question in Smt. Dulara and others v.
U.P.S.R.T.C. though Regional Manager
and another, F.A.F.O. No. 2887 of 2011,
decided on 17.11.2022, where I held:

"17. A safe benchmark to assess a
person's income, where there is no proof
aliunde or corroborative about the figure is
by reference to the income of an unskilled
casual
labourer
obtaining
in
time
contemporary to the event. In an accident,
which took place on 16th May, 2009, a
Division Bench of this Court in The
Oriental Insurance Company Ltd. v. Smt.
Shashi Devi & others, 2015 SCC OnLine
All
8594,
approved
the
Tribunal's
approach in inferring an income of Rs.
150/- per day, assessing it for an ordinary
labourer and adding 30% towards future
prospect to determine a figure of Rs. 240/-
per day. In Shashi Devi (supra), it was
held by their Lordships of the Division
Bench thus:

"9. So far as the compensation
awarded by the Tribunal is concerned, the
Tribunal has noted the age of the deceased
as 44 years and having regard to the age of
the deceased as mentioned in the postmortem report and also the evidence on
record, the Tribunal af ter taking the
income of the deceased as Rs. 4500 per
month (Rs. 150 per day) applied the
multiplier of 14. Even for a person of an
ordinary labourer/coolie the income would
be, more than Rs. 240/- per day. At that
rate, the annual income would be Rs.
86,400/-. In the present case, the deceased
was aged 44-45 years, at the time of his
death, (i.e. in the year 2009) and the
Tribunal has assessed his income as Rs.
150 per day and at that rate his annual
income was assessed as 54,000/- and also
looking to the future pros pects of the
deceased the Tribunal has in creased 30 %
in the total income of the de ceased by
applying the ratio of the case of Santosh
Devi v. National Insurance Company Ltd.,
reported in 2012 ACJ 1428 : ((2012) 6
SCC 421 : AIR 2012 SC 2185). It is not
necessary that there should be fixed income
or the deceased was self employed for the
purpose of calculating the future prospects.
The Tribunal has rightly applied the
multiplier and awarded the compensation
and the same does not call for any
interference by this Court."
234 INDIAN LAW REPORTS ALLAHABAD SERIES

24. For the reasons indicated in Smt.
Dulara and others (supra) and the daily
income of an unskilled daily rated labourer
at the relevant time, it would be safe to
hold the deceased's income to be a sum of
Rs. 150/- per day. But, unlike Dulara Devi,
the deceased here was not a casual labourer
and was in self-employment, where he had
a shop. If there would be any deductions,
which are often made in cases of casual
labourers, there is no reason to do that in
the deceased's case. His income, therefore,
is to be worked out for the entire month at
the rate of Rs. 150/-. This would lead to a
monthly income for the deceased in the
sum of Rs. 4500/-.

25. The annual income of the
deceased would, therefore, be a sum of Rs.
54,000/-. The deceased left behind three
heirs as the claim petition would indicate.
They are Smt. Sarita Devi (widow), Smt.
Urmila Devi (his mother) and Babu lal
Yadav (his father). Going by paragraph No.
30 of the judgement in Sarla Verma (Smt)
v. Delhi Transport Corporation and
another, (2009) 6 SCC 121, where the
number of dependent family members is 23, deduction towards personal and living
expenses of the deceased is one-third. The
Tribunal has directed likewise. Again, so
far as the issue of the multiplier goes
according to the Schedule set out in
paragraph No. 40 of the report in Sarla
Verma
(supra),
18
would
be
the
appropriate
multiplier
to
adopt,
the
deceased being in the age bracket of 21-25
years.

26. The next question that falls for our
consideration is about the future prospects,
if any, to which the claimants may be
entitled. The issue about the future
prospects
has
been
authoritatively
pronounced upon by the Constitution
Bench decision of the Supreme Court in
National Insurance Company v. Pranay
Sethi and others (2017) 16 SCC 680.
Pranay Sethi (supra) has extended the
benefit of future prospects to the selfemployed or persons employed on fixed
salaries. In Pranay Sethi, it has been held:

"56. The seminal Issue is the
fixation of future prospects in cases of
deceased who are self-employed or on a
fixed salary. Sarla Verma [Sarla Verma v.
DTC, (2009) 6 SCC 121 : (2009) 2 SCC
(Civ) 770 : (2009) 2 SCC (Cri) 1002] has
carved out an exception permitting the
claimants to bring materials on record to
get the benefit of addition of future
prospects. It has not, per se, allowed any
future prospects in respect of the said
category.

57. Having bestowed our anxious
consideration, we are disposed to think
when
we
accept
the
principle
of
standardisation, there is really no rationale
not to apply the said principle to the selfemployed or a person who is on a fixed
salary. To follow the doctrine of actual
income at the time of death and not to add
any amount with regard to future prospects
to
the
income
for
the
purpose
of
determination of multiplicand would be
unjust. The determination of income while
computing compensation has to include
future prospects so that the method will
come within the ambit and sweep of just
compensation as postulated under Section
168 of the Act. In case of a deceased who
had held a permanent job with inbuilt grant
of annual increment, there is an acceptable
certainty. But to state that the legal
representatives of a deceased who was on a
fixed salary would not be entitled to the
benefit of future prospects for the purpose
of computation of compensation would be
inapposite. It is because the criterion of
2 All. Preetam Singh Vs. Smt. Urmila Devi & Ors.
235
distinction between the two in that event
would be certainty on the one hand and
staticness on the other. One may perceive
that the comparative measure is certainty
on the one hand and uncertainty on the
other but such a perception is fallacious. It
is because the price rise does affect a selfemployed person; and that apart there is
always an incessant effort to enhance one's
income for sustenance. The purchasing
capacity of a salaried person on permanent
job when increases because of grant of
increments and pay revision or for some
other change in service conditions, there is
always a competing attitude in the private
sector to enhance the salary to get better
efficiency from the employees. Similarly, a
person who is self-employed is bound to
garner his resources and raise his
charges/fees so that he can live with same
facilities. To have the perception that he is
likely to remain static and his income to
remain
stagnant
is
contrary
to
the
fundamental concept of human attitude
which always intends to live with dynamism
and move and change with the time.
Though it may seem appropriate that there
cannot be certainty in addition of future
prospects to the existing income unlike in
the case of a person having a permanent
job, yet the said perception does not really
deserve acceptance. We are inclined to
think that there can be some degree of
difference as regards the percentage that is
meant for or applied to in respect of the
legal representatives who claim on behalf
of the deceased who had a permanent job
than a person who is self-employed or on a
fixed salary. But not to apply the principle
of standardisation on the foundation of
perceived
lack
of
certainty
would
tantamount to remaining oblivious to the
marrows of ground reality. And, therefore,
degree-test is imperative. Unless the
degree-test is applied and left to the parties
to adduce evidence to establish, it would be
unfair and inequitable. The degree-test has
to have the inbuilt concept of percentage.
Taking into consideration the cumulative
factors, namely, passage of time, the
changing society, escalation of price, the
change in price index, the human attitude
to follow a particular pattern of life, etc.,
an addition of 40% of the established
income of the deceased towards future
prospects and where the deceased was
below 40 years an addition of 25% where
the deceased was between the age of 40 to
50 years would be reasonable."

27. Another Issue that arises for
consideration is whether future prospects
are to be awarded according to the law laid
down in Pranay Sethi (supra) or Rule 220A(3) of the U.P. Motor Vehicles Rules,
1998 (for short the ''Rules of 1998'). In
New India Assurance Co. Ltd v. Urmila
Shukla and others, 2021 SCC OnLine SC
822, it was held:

"9. It is to be noted that the
validity of the Rules was not, in any way,
questioned in the instant matter and thus
the only question that we are called upon to
consider is whether in its application, subRule 3(iii) of Rule 220A of the Rules must
be given restricted scope or it must be
allowed to operate fully.

10. The discussion on the point in
Pranay Sethi was from the standpoint of
arriving at "just compensation" in terms of
Section 168 of the Motor Vehicles Act,
1988.

11. If an indicia is made
available in the form of a statutory
instrument which affords a favourable
treatment,
the
decision
in
Pranay
Sethicannot be taken to have limited the
operation of such statutory provision
specially when the validity of the Rules was
236 INDIAN LAW REPORTS ALLAHABAD SERIES
not
put
under
any
challenge.
The
prescription of 15% in cases where the
deceased was in the age bracket of 50-60
years as stated in Pranay Sethicannot be
taken as maxima. In the absence of any
governing principle
available
in
the
statutory regime, it was only in the form of
an indication. If a statutory instrument has
devised a formula which affords better or
greater benefit, such statutory instrument
must be allowed to operate unless the
statutory instrument is otherwise found to
be invalid.

12. We, therefore, reject the
submission advanced on behalf of the
appellant and affirm the view taken by the
Tribunal as well as the High Court and
dismiss this appeal without any order as to
costs."

28.

The
principle
applicable,
therefore, is that Rule 220-A(3) of the
Rules of 1998 would apply in order to
determine future prospects and not the law
in Pranay Sethi, so far as the State of U.P.
is concerned, where these rules are in force.

29. The question further to be answered
is whether Rule 220-A(3) of the Rules of 1998
that was introduced by Notification No.
777/XXX-4-2011-4(3)-2010
dated
26
September, 2011 i.e. The Uttar Pradesh Motor
Vehicles (Eleventh Amendment) Rules, 2011,
apply retrospectively to an accident that
happened much before the introduction of
Rule 220-A of the Rules of 1998. This
question was considered by a Division Bench
of this Court in Sushil Kumar and others v.
M/s. Sampark Lojastic Private Limited and
others, 2017 (35) LCD 1311. In Sushil
Kumar (supra), it was held by their Lordships
of the Division Bench:

"31. Rule 220-A was inserted in
the Uttar Pradesh Motor Vehicles Rules,
1998 in view of the various decisions of the
law courts for providing benefit on account
of future prospects of the injured/deceased.
It
provides
for
addition
of
certain
percentage
of
the
income
of
the
injured/deceased in his actual income
depending
upon
the
age
of
the
injured/deceased for the purposes of
determination of the compensation. The
aforesaid Rule came into effect on
26.09.2011 after the decision of the claim
petition but before filing of the appeal
though
the
accident
took
place
on
08.05.2010 much before the enforcement of
the above Rule.

32. It is in view of the above that
an argument is being raised that Rule 220A of the Rules which came into effect on
26.09.2011 would not apply to the accident
which had taken place on 08.05.2010.

33. In Ram Sarup Vs. Munshi AIR
1963 SC 553 it was laid down that a
change in law during the pendency of an
appeal has to be taken into account and
will cover the rights of the parties.

34. The view expressed above
was followed by the Supreme Court in
Mula Vs. Godhu AIR 1971 SC 89.

35. In Dayawati Vs. Inderjit AIR
1966 SC 1423 the court had observed as
under:-If the new law speaks in language,
which expressly or by clear intendment,
takes in even pending matters, the court of
trial as well as the court of appeal must
have regard to an intention so expressed,
and the court of appeal may give effect to
such a law even after the judgment of the
court of first instance.

36. In Amarjit Kaur Vs. Pritam
Singh AIR 1974 SC 2068 effect was given
to the change in law during the pendency of
an appeal as the hearing of an appeal
under the procedural law of this country is
in the nature of rehearing of the suit by
superior court.
2 All. Preetam Singh Vs. Smt. Urmila Devi & Ors.
237

37. It was in the light of the above
decisions that in Lakshmi Narayan Guin
and others Vs. Niranjan Modak AIR 1985
SC 111 it was held that a change in law
during the pendency of an appeal has to be
taken into account and will cover the right
of the parties.

38. The aforesaid decision was
followed by a Division Bench of this court
in U.P. State Road Transport Corporation
Vs. Smt. Madhu Sharma and others, 2003
(4) AWC 2620 which was a case in relation
to the provisions of the Motor Vehicles Act
and it was observed that it is apparent that
the change in law during the pendency of
the original proceedings has to be taken
into account so as to cover the rights of the
parties.

39. In view of above decision the
view expressed by the Division Bench of
this court in ICICI Lombard (Supra) is not
of good law as it does not takes into
account the decisions referred to above in
holding that the Rule 220-A of the Rules
which came into effect on 26.09.2011
would not apply to the accident that took
place prior to the said date only for the
reason that the Rule was not specifically
stated to be retrospective in nature."

30. The law laid down by the
Division Bench in Sushil Kumar (supra)
is binding precedent. The award for future
prospects is required to be made in
accordance with the Rule 220-A(3) of
Rules, 1998. For a person of the deceased's
age, which was decisively below 40 years,
Rule 220-A(3) prescribes 50% to be added
to his income towards future prospects.

31. There is still another Issue which
requires
consideration
and,
that
is,
compensation payable to the claimants
under the conventional heads. In this
regard, the decision in Pranay Sethi
(supra) again becomes relevant where, it is
observed;

"48. This aspect needs to be
clarified
and
appositely
stated.
The
conventional sum has been provided in the
Second Schedule to the Act. The said
Schedule has been found to be defective as
stated by the Court in Trilok Chandra [UP
SRTC v. Trilok Chandra, (1996) 4 SCC
362] . Recently, in Puttamma v. K.L.
Narayana
Reddy
[Puttamma
v.K.L.
Narayana Reddy, (2013) 15 SCC 45 :
(2014) 4 SCC (Civ) 384 : (2014) 3 SCC
(Cri) 574] it has been reiterated by stating
: (SCC p. 80, para 54)

"54. ... we hold that the Second
Schedule as was enacted in 1994 has now
become
redundant,
irrational
and
unworkable due to changed scenario
including the present cost of living and
current rate of inflation and increased life
expectancy."

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

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

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

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

50. On a perusal of various
decisions of this Court, it is manifest that
the Second Schedule has not been followed
starting from the decision in Trilok
Chandra [UP SRTC v.Trilok Chandra,
(1996) 4 SCC 362] and there has been no
amendment to the same. The conventional
damage amount needs to be appositely
determined. As we notice, in different cases
different amounts have been granted. A
sum of Rs 1,00,000 was granted towards
consortium in Rajesh [Rajesh v. Rajbir
Singh, (2013) 9 SCC 54 : (2013) 4 SCC
(Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014)
1 SCC (L&S) 149] . The justification for
grant of consortium, as we find from
Rajesh [Rajesh v. Rajbir Singh, (2013) 9
SCC 54 : (2013) 4 SCC (Civ) 179 : (2013)
3 SCC (Cri) 817 : (2014) 1 SCC (L&S)
149] , is founded on the observation as we
have reproduced hereinbefore.

51. On the aforesaid basis, the
Court has revisited the practice of awarding
compensation under conventional heads.

52. As far as the conventional
heads are concerned, we find it difficult to
agree
with
the
view
expressed
in
Rajesh[Rajesh v. Rajbir Singh, (2013) 9
SCC 54 : (2013) 4 SCC (Civ) 179 : (2013)
3 SCC (Cri) 817 : (2014) 1 SCC (L&S)
149] . It has granted Rs 25,000 towards
funeral expenses, Rs 1,00,000 towards loss
of consortium and Rs 1,00,000 towards loss
of care and guidance for minor children.
The head relating to loss of care and minor
children does not exist. Though Rajesh
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 :
(2013) 4 SCC (Civ) 179 : (2013) 3 SCC
(Cri) 817 : (2014) 1 SCC (L&S) 149] refers
to Santosh Devi [Santosh Devi v. National
Insurance Co. Ltd., (2012) 6 SCC 421 :
(2012) 3 SCC (Civ) 726 : (2012) 3 SCC
(Cri) 160 : (2012) 2 SCC (L&S) 167] , it
does not seem to follow the same. The
conventional
and
traditional
heads,
needless to say, cannot be determined on
percentage basis because that would not be
an
acceptable
criterion.
Unlike
determination of income, the said heads
have to be quantified. Any quantification
must have a reasonable foundation. There
can be no dispute over the fact that price
index, fall in bank interest, escalation of
rates in many a field have to be noticed.
The court cannot remain oblivious to the
same. There has been a thumb rule in this
aspect. Otherwise, there will be extreme
difficulty in determination of the same and
unless the thumb rule is applied, there will
be immense variation lacking any kind of
consistency as a consequence of which, the
orders passed by the tribunals and courts
are likely to be unguided. Therefore, we
think it seemly to fix reasonable sums. It
seems to us 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. The principle of
revisiting the said heads is an acceptable
principle. But the revisit should not be factcentric or quantum-centric. We think that it
would be condign that the amount that we
have quantified should be enhanced on
percentage basis in every three years and
the enhancement should be at the rate of
10% in a span of three years. We are
disposed to hold so because that will bring
in consistency in respect of those heads."

 (emphasis by Court)

32. So far, award of compensation
under the head of the loss of consortium is
concerned, the same was considered by the
supreme
Court
in
Magma
General
Insurance Company Ltd. v. Nanu Ram
alias Chuhru Ram and others, (2018) 18
2 All. Preetam Singh Vs. Smt. Urmila Devi & Ors.
239
SCC 130. In Magma General Insurance
Company Ltd. (supra), it has been held:

"21. A Constitution Bench of
this Court in Pranay Sethi[National
Insurance Co. Ltd. v. Pranay Sethi,
(2017) 16 SCC 680 : (2018) 3 SCC (Civ)
248 : (2018) 2 SCC (Cri) 205] dealt with
the
various
heads
under
which
compensation is to be awarded in a death
case. One of these heads is loss of
consortium.
In
legal
parlance,
"consortium" is a compendious term
which
encompasses
"spousal
consortium", "parental consortium", and
"filial
consortium".
The
right
to
consortium would include the company,
care, help, comfort, guidance, solace and
affection of the deceased, which is a loss
to his family. With respect to a spouse, it
would include sexual relations with the
deceased spouse : [Rajesh v. Rajbir
Singh, (2013) 9 SCC 54 : (2013) 4 SCC
(Civ) 179 : (2013) 3 SCC (Cri) 817 :
(2014) 1 SCC (L&S) 149]

21.1.
Spousal
consortium
is
generally defined as rights pertaining to the
relationship of a husband-wife which
allows compensation to the surviving
spouse for loss of "company, society,
cooperation, affection, and aid of the other
in every conjugal relation". [Black's Law
Dictionary(5th Edn., 1979).]

21.2.
Parental
consortium
is
granted to the child upon the premature
death of a parent, for loss of "parental aid,
protection, affection, society, discipline,
guidance and training"

21.3. Filial consortium is the right
of the parents to compensation in the case
of an accidental death of a child. An
accident leading to the death of a child
causes great shock and agony to the parents
and family of the deceased. The greatest
agony for a parent is to lose their child
during their lifetime. Children are valued
for their love, affection, companionship and
their role in the family unit.

 (emphasis by Court)

33. In view of what this Court has
found,
compensation
payable
to
the
claimants in this appeal would have to be
revised in the following manner:

(i)
Monthly
Income
(of the deceased)
=
4500/-
(ii)
Monthly
Income+Future
Prospects (monthly
income x 50%) =
4500+2250
=
6750/-
(iii)
Annual Income (of
the
deceased)
=
6750x12
=
81,000/-
(iv)
Annual
Dependency
=
Annual Income -
one-third deduction
towards
personal
expenses
of
the
deceased = 8100027000
=
54,000/-
(v)
Total Dependency
=
Annual
Dependency
x
Applied Multiplier
= 54000x18
=
9,72,000
/-
(vi)
Claimants'
entitlement towards
conventional heads
= Loss of Estate +
Funeral Expenses +
dependents'
Consortium
=15000+15000+40
000x3
=
1,50,000
/-
The total compensation
would
therefore,
work
out to a figure of Rs.
=
11,22,00
0/-
240 INDIAN LAW REPORTS ALLAHABAD SERIES
9,72,000/- + Rs. 1,50,000/-

34. In the result FAFO No. 1111 of
2019 succeeds and is allowed.

35. It is ordered that the compensation
awarded by this judgment and award shall
be payable by the insurer and not the
owner.

36. FAFO No. 2886 of 2011 succeeds
and is allowed.