# Sarla Verma v. Delhi Road Transport

- **Citation:** (2012) 2 ILRA 573
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-25
- **Bench:** Rajes Kumar, Anil Kumar Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarla-verma-v-delhi-road-transport-42304
- **Pages:** 4

## Headnote

Motor Vehicle Act-Section 173-Insurer
Appeal-at the time of accident deceased
was 45 years old-addition of 30%
compensation-for
future
prospect
of
deceased-not excessive-nor the income
of salary of compassionate appointee,
and pension etc.-shall be taken into
consideration-while
awarding
compensation-Appeal dismissed.
Held: Para 7

As regards the addition of 30 percent for
future prospects of the deceased the
Tribunal has placed reliance on the case
of Sunil Sharma (supra). Learned counsel
for the appellant has tried to distinguish
this case on the premise that in the case
before the Apex Court the deceased was
aged about 45 years and was a Class-III
employee, so there is no parity of this
case with the instant one. No doubt in
the present case the deceased was
Khalasi
(Class-IV
employee
of
N.E.
Railway
Gorakhpur)
and
was
aged
between 45-50 years but in our opinion
the addition of 30 percent pay for
calculating the amount of compensation
as future prospects of the deceased is
not excessive at all. The deceased was
having 12 years of service and during
this period his pay would have revised at
least once apart from hike in D.A. every
year which on average is 10 percent or
more. It is noteworthy that in the case of
Sarla Verma vs. Delhi Road Transport
Corporation, reported in 2009(2)TAC 699
(SC) the Apex Court has laid down as a
'rule of thumb' with respect to addition
in income due to future prospects
observing that addition should be only
30 percent if the age of the deceased
was 40-50 years. As such we find that
learned Tribunal has not committed any
illegality in adding 30 percent in income
due to future prospects of the deceased
for
calculating
just
and
reasonable
compensation.
Case law discussed:
2008 (3) TAC 661 (SC); 2011 (3) TAC 629
(SC); (2002) (6) SCC 281; 1962 (1) S.C.R.
929; 2009 (7) ADJ 575 (DB); AIR 1983 Punjab
& Haryana 94; AIR 1983 Madhya Pradesh 24;
1998 (1) TAC 14 (Karnataka); 2009 (2) TAC
699 (SC)

## Text

2 All] United India Insurance Co. Ltd.V. Smt. Geeta Devi and others
573
appellant
being
based
upon
an
unregistered
document,
is
not
maintainable. The plaintiff has no prima
facie case and accordingly not entitled
for interim injunction. The order of the
trial court does not suffer from any
illegality. The appeal has no merit and is
accordingly dismissed.

23. However, it is made clear that
the various observations and findings in
this order were made only for deciding
the application for interim injunction.
The trial court will not be prejudiced
while deciding the suit on merit by the
findings and observations made by this
court or in the impugned order.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE ANIL KUMAR SHARMA, J.

First Appeal From Order No. - 2147 of 2012

United India Insurance Co. Ltd.

...Petitioner
Versus
Smt. Geeta Devi and others

 ...Respondents

Counsel for the Petitioner:
Sri Saurabh Srivastava

Counsel for the Respondents:
...................................

Motor Vehicle Act-Section 173-Insurer
Appeal-at the time of accident deceased
was 45 years old-addition of 30%
compensation-for
future
prospect
of
deceased-not excessive-nor the income
of salary of compassionate appointee,
and pension etc.-shall be taken into
consideration-while
awarding
compensation-Appeal dismissed.
Held: Para 7

As regards the addition of 30 percent for
future prospects of the deceased the
Tribunal has placed reliance on the case
of Sunil Sharma (supra). Learned counsel
for the appellant has tried to distinguish
this case on the premise that in the case
before the Apex Court the deceased was
aged about 45 years and was a Class-III
employee, so there is no parity of this
case with the instant one. No doubt in
the present case the deceased was
Khalasi
(Class-IV
employee
of
N.E.
Railway
Gorakhpur)
and
was
aged
between 45-50 years but in our opinion
the addition of 30 percent pay for
calculating the amount of compensation
as future prospects of the deceased is
not excessive at all. The deceased was
having 12 years of service and during
this period his pay would have revised at
least once apart from hike in D.A. every
year which on average is 10 percent or
more. It is noteworthy that in the case of
Sarla Verma vs. Delhi Road Transport
Corporation, reported in 2009(2)TAC 699
(SC) the Apex Court has laid down as a
'rule of thumb' with respect to addition
in income due to future prospects
observing that addition should be only
30 percent if the age of the deceased
was 40-50 years. As such we find that
learned Tribunal has not committed any
illegality in adding 30 percent in income
due to future prospects of the deceased
for
calculating
just
and
reasonable
compensation.
Case law discussed:
2008 (3) TAC 661 (SC); 2011 (3) TAC 629
(SC); (2002) (6) SCC 281; 1962 (1) S.C.R.
929; 2009 (7) ADJ 575 (DB); AIR 1983 Punjab
& Haryana 94; AIR 1983 Madhya Pradesh 24;
1998 (1) TAC 14 (Karnataka); 2009 (2) TAC
699 (SC)

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

1. This is an insurer appeal
challenging the award dated 31.01.2012
574 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
passed by M.A.C.T./Additional District
Judge, Court No.3, Gorakhpur in M.A.C.
no.
625
of
2009,
whereby
the
compensation of Rs. 15,50,670/- have
been awarded to Respondent Nos. 1 to 5
on account of death of 42 years' old
railway-man Moti Lal.

2. It appears that on 10.10.2009
deceased Moti Lal was going from his
house to attend his railway duty in
Gorakhpur by Tempo UP-58T/1008 and
when the Tempo reached Barhua at about
6.30 A.M. it turtled on account of rash
and negligent driving of its driver.
Several passengers including the Moti
Lal sustained grievous injuries. They
were taken to hospital Gorakhpur by the
local police but Moti Lal succumbed to
the injuries during transit. The claimants
alleged that deceased Moti Lal was a
Class-IV employee in railway and his
monthly pay was Rs. 15,000/-. The
claimants being the widow and children
of the deceased filed claim petition for
an award of Rs. 47.7 Lakhs. The FIR of
the accident was lodged by the son of the
deceased in P.S. Sahjanwa on 11.10.2009
against the driver of the aforesaid Tempo
and
the
police
after
investigation
submitted charge sheet against him. In
support of the claim the claimants
examined claimant no.1 Smt. Geeta Devi
as PW-1, eye witnesses Krishna Nand
Tiwari as PW-2, Mahendra Pratap Yadav
as PW-3 and Rajeev Goyal as PW-4 to
prove employment and income of the
deceased and also filed several police
papers, photo copy of the service book
and pay slip of the deceased. The driver
of the Tempo Sudhakar Bharti examined
himself as DW-1.

3. We have heard learned counsel
for the appellant at length and perused
the impugned award and also the
document filed by the appellant in
support of appeal.

4. Learned counsel for the appellant
has challenged the findings of the
Tribunal with regard to quantum of
compensation awarded by the Tribunal to
Respondent Nos. 1 to 5. He has
submitted that widow of the deceased is
getting family pension; that son of the
deceased has been given compassionate
appointment
under
Dying-in-Harness
Rules and the learned Tribunal has
erroneously added 30 percent in the
annual income of the deceased for future
prospects. He has relied upon the cases
of Bhakra Beas Management Board vs.
Kanta Agarwal and others, 2008 (3)
TAC 661 (SC) and Sunil Sharma and
others vs. Bachitar Singh and others,
2011 (3) TAC 629 (SC).

5. In the facts of the case of Bhakra
Beas Management Board (supra) the
widow
of
the
deceased
got
compassionate appointment on monthly
salary of Rs. 4700/- and was also
provided residence immediately after the
accident.
The
Tribunal
awarded
compensation of Rs. 8,48,160/-, which
was not disturbed by the High Court. In
appeal before Supreme Court under its
direction the employer deposited Rs.
5,00,000/-. On these facts the Hon'ble
Court making reference to the cases of
United India Insurance Company Ltd.
and others vs. Patricia Jean Mahajan
and others, (2002) (6) SCC 281, Gobald
Motors Service Limited and others vs.
R.M.K. Veluswami and others, 1962 (1)
S.C.R. 929 an0.00"d Helen C. Rebello
vs. Maharashtra S.R.T.C., 1999 (1) SCC
90 has observed that High Court lost
sight of the fact that the benefit which on
2 All] United India Insurance Co. Ltd.V. Smt. Geeta Devi and others
575
account of death or injury have to be
duly
considered
while
fixing
the
compensation. In the background facts of
the case the Hon'ble Court found it just
and proper that sum of Rs. 5 lakhs
already deposited shall be permitted to
be withdrawn by the claimants in full and
final settlement of the claim relatable to
the death of the deceased. In the facts of
the case the Hon'ble Court has only
directed that the benefits being received
by the claimant on account of death or
injury should be duly considered. In the
instant case it has come in the statement
of PW-4 that the son of the deceased had
been given compassionate appointment
in the railway. The salary being drawn
by the son of the deceased is only due to
his services rendered to the department.
Had
the
railway
not
given
such
appointment to him, he would have
served anywhere else and this cannot be
termed as a benefit arising out of the
death of his father. However, in the facts
of the instant case we find that the
learned Tribunal has considered the
above facts regarding employment of
deceased's
son
on
compassionate
grounds, as it has lowered the multiplier
for computing the compensation. The
deceased was between age group above
45-50 years and for this age group
multiplier of '13' had been prescribed in
the 2nd Schedule of Motor Vehicles Act,
but the Tribunal taking multiplier of '10'
has
carved
out
the
amount
of
compensation payable to the claimants.

6. In the instant case undoubtedly
the widow of the deceased is getting
family pension. In this connection, it is
important to note the observations of the
Apex Court given in the case of Helen C.
Rebello (supra). In para-36 the Hon'ble
Court has observed that 'family pension
is also earned by an employee for the
benefit of his family in the form of his
contribution in service in terms of the
service conditions receivable by the heirs
after his death. The heirs receive family
pension
even
otherwise
than
the
accidental death. No co-relation between
the two.' It is further held that though it
is pecuniary advantage receivable by the
heirs on account of one's death but it has
no
co-relation
with
the
amount
receivable under the statute occasioned
only on account of accidental death.
Such an amount cannot come within
periphery of the Motor Vehicles Act to
be termed as 'pecuniary advantage' liable
to deduct. Similarly in the case of Smt.
Sarla Dixit and another vs. Balwant
Yadav and others (Civil Appeal No.
5157/1992 decided on February 29, 1996
the Apex Court did not aprrove the
deduction on account of family pension
in working out compensation. A division
bench of this Court in the case of
Reliance General Insurance Company
Ltd. vs. Smt. Urmila Devi and others,
2009(7) ADJ 575 (DB) repelling the
argument advanced on behalf of the
appellant did not give any benefit to the
insurance company about family pension
and engagement of the wife of the
deceased in employment. Moreover the
full Benches of Punjab and Haryana
High Court in the case of Bhagat Singh
Sohan Singh vs. Smt. Om Sharma and
others, AIR 1983 Punjab & Haryana
94, the Madhya Pradesh High Court
(Indore Bench) in the case of Smt.
Kashmiran Mathur and others vs.
Sardar Rajendra Singh and another,
AIR 1983 Madhya Pradesh 24 and
Karnataka High Court in the case of Smt.
Parwati @ Baby and others vs. Hollur
Hallappa and others, 1998 (1) TAC 14
(Karnataka) have taken similar view.
576 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Thus in our opinion the family pension
being drawn by the widow of the
deceased is not liable to be deducted
from
the
amount
of
compensation
awarded to the claimants.

7. As regards the addition of 30
percent for future prospects of the
deceased the Tribunal has placed reliance
on the case of Sunil Sharma (supra).
Learned counsel for the appellant has
tried to distinguish this case on the
premise that in the case before the Apex
Court the deceased was aged about 45
years and was a Class-III employee, so
there is no parity of this case with the
instant one. No doubt in the present case
the deceased was Khalasi (Class-IV
employee of N.E. Railway Gorakhpur)
and was aged between 45-50 years but in
our opinion the addition of 30 percent
pay for calculating the amount of
compensation as future prospects of the
deceased is not excessive at all. The
deceased was having 12 years of service
and during this period his pay would
have revised at least once apart from hike
in D.A. every year which on average is
10 percent or more. It is noteworthy that
in the case of Sarla Verma vs. Delhi
Road Transport Corporation, reported
in 2009(2)TAC 699 (SC) the Apex Court
has laid down as a 'rule of thumb' with
respect to addition in income due to
future prospects observing that addition
should be only 30 percent if the age of
the deceased was 40-50 years. As such
we find that learned Tribunal has not
committed any illegality in adding 30
percent in income due to future prospects
of the deceased for calculating just and
reasonable compensation.

8. In view of what has been said
and done above, we do not find any merit
in the appeal which is accordingly
dismissed. The statutory deposit of Rs.
25,000/- made before this Court be
remitted back to the concerned Tribunal
as expeditiously as possible.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Second Appeal No. - 2206 of 1985

Hardwari Lal and others
 ...Petitioner
Versus
Dal Singh and others
 ...Respondents

Counsel for the Petitioner:
Sri R.K. Jain
Sri R.G. Prasad

Counsel for the Respondents:
Sri S.R. Singh
Sri Ram Avtar Verma

Code of Civil Procedure-Section 100Second Appeal-suit dismissed by courty
below
as
plot
not
identified-Lower
Appellate Court rejected the application
for Survey Commissioner being highly
belated stage-whether Appellate Court
right in rejecting such application-held-
'No' even Supreme Court had allowed
such application -High Court cannot
ignore the same-Appeal allowed matter
remanded back for fresh decision by
identifying the plot in question through
Survey Commissioner.

Held: Para 10

Accordingly, second appeal is allowed.
Substantial question of law is decided in
favour of the appellants. Judgment and
decree passed by the lower appellate
court is set aside. Matter is remanded to
the lower appellate court to decide the
appeal afresh after providing opportunity