# Smt. Anita & Ors v. Jaipal Singh & Anr

- **Citation:** (2019) 3 ILRA 1161
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-22
- **Case number:** FAFO No. 2801 of 2007
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anita-ors-v-jaipal-singh-anr-44640
- **Pages:** 7

## Headnote

A. Civil Law-Motor Vehicles Act, 1988 -
Section 168 - Just and fair compensation
- Future prospects in cases of selfemployed persons - In case the deceased
was self-employed or on a fixed salary,
an addition of 40% of the established
income is warranted where the deceased
was below the age of 40 years. An
addition of 25% where the deceased
was between the age of 40 to 50 years
and 10% where the deceased was
between the age of 50 to 60 years
should be regarded as the necessary
method of computation. The established
income means the income minus the tax
component.
Held:
-
Tribunal
erred
in
granting
compensation
without
considering
the
question of future prospects of the selfemployed deceased. Court below ought to
have considered the question of future
prospects of the deceased while awarding the
"just compensation". (Para 18)

First Appeal partly allowed (E-5)

List of cases cited: -

1.National Insurance Company Limited vs.
Pranay Sethi, (2017) 16 SCC 680

## Text

3 All. Smt. Anita & Ors. Vs. Jai Pal Singh & Anr.
1161
Section 167 of the Motor Vehicle Act is
bad in eye of law.

24. The judgment is quashed. The
respondents shall indemnify jointly and
severely under Section 163-A of the
Motor Vehicle Act,1988. The appeal is
partly allowed.
----------

(2019)11ILR A1161

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2019

BEFORE
THE HON'BLE PANKAJ BHATIA, J.

FAFO No. 2801 of 2007
connected with
FAFO Cases No. 2911 of 2007, 2912 of 2007 &
3007 of 2007

Smt. Anita & Ors. ...Appellants
Versus
Jaipal Singh & Anr. ...Respondents

Counsel for the Appellants:
Sri Nigamendra Shukla, Anju Shukla

Counsel for the Respondents:
Sri Kuldip Shanker Amist

A. Civil Law-Motor Vehicles Act, 1988 -
Section 168 - Just and fair compensation
- Future prospects in cases of selfemployed persons - In case the deceased
was self-employed or on a fixed salary,
an addition of 40% of the established
income is warranted where the deceased
was below the age of 40 years. An
addition of 25% where the deceased
was between the age of 40 to 50 years
and 10% where the deceased was
between the age of 50 to 60 years
should be regarded as the necessary
method of computation. The established
income means the income minus the tax
component.
Held:
-
Tribunal
erred
in
granting
compensation
without
considering
the
question of future prospects of the selfemployed deceased. Court below ought to
have considered the question of future
prospects of the deceased while awarding the
"just compensation". (Para 18)

First Appeal partly allowed (E-5)

List of cases cited: -

1.National Insurance Company Limited vs.
Pranay Sethi, (2017) 16 SCC 680

2. Sarla Verma vs. Delhi Development
Corporation, 2009 (6) SCC 121

3.
U.P.S.R.T.C.
vs.
Additional
District
Judge/Special Judge Civil Misc. Writ Petition
No. 9020 of 2007, decided on 01.03.2019

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Nigamendra Shukla,
learned
counsel
for
the
claimants/appellants in First Appeal From
Order No. 2801 or 2007, Sri K.S. Amist,
learned counsel for the respondents, Sri
K.S. Amist, learned counsel for the
claimants-appellants and Sri Nigamendra
Shukla,
learned
counsel
for
the
respondents in the connected appeals.

2. All the present four appeals arises
out of the same accident and as such they
are being disposed off by means of
common judgement. The FAFO Nos.
2911 of 2007, 2912 of 2007 and 3007 of
2007 have been filed by the Insurance
Company challenging the awards passed
by the Motor Accident Claim Tribunal in
three
claim
petitions
being
Claim
Petitions No. 02 of 2003, 03 of 2003 and
08 of 2003. The FAFO No. 2801 of 2007
has been filed by the claimants-appellants
seeking enhancement of the award passed
by the Motor Accident Claim Tribunal in
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
Claim Petition No. 03 of 2003. For the
sake of convenience, the facts are being
narrated from the Award dated 18.7.2007
passed by the Motor Accident Claim
Tribunal/Special Judge (SC/ST) Act,
Bulandshahar in Motor Accident Claim
Petition No. 03 of 2003.

3. The Motor Accident Claim Petition
No. 03 of 2003 was filed by the claimants,
being the dependents of the deceased
Rajendra Singh claiming compensation
under section 166 of the Motor Vehicle Act.
The submissions in brief made in the claim
petition, filed on 09.11.2002,were that three
persons, namely, Rajendra Singh, Sunil
Kumar and Nigam alias Gullu, who were
going on their motorcycle Hero Honda No.
H.R. 30-2520, when the motorcycle reached
at Bulandshahar, Gulawati Road, situated at
Police Chauki near Yadav Hotel about 11.00
A.M. in the morning, a Vehicle bearing No.
U.P. 81-C 3949 coming from Bulandshahar,
suddenly, turned towards the right on the
pavement and hit the motorcycle which
resulted into grievous injuries to all the three
persons. In the said accident, Rajendra Singh
and Nigam alias Gullu died on the spot
whereas Sunil Kumar was taken in a serious
condition to the Government Hospital,
Bulandshahar where he was referred to All
India Institute of Medical Sciences, New
Delhi where he, unfortunately, died on the
next day i.e. 10.11.2002. In the said claim
petition, it was alleged that the accident
occurred on account of rash and negligent
driving of Vehicle No. U.P. 81-C 3949. It
was also stated that the FIR, with regard to
the said accident, was registered as Case
Crime No. 420 of 2002, under sections 279,
338, 304-A and 427 IPC.

4. In the claim petition filed by the
dependents of Rajendra Singh, it was
stated that at the time of the accident, the
age of Rajendra Singh was 28 years. He
was working as a mason and earned Rs.
4500/- per month. It was claimed that the
claimants were dependent of Rajendra
Singh and thus claimed an amount of Rs.
19,15,000/- as compensation from the
owner and the Insurance Company of the
vehicle.

5. The owner of the Vehicle, Jaipal
Singh,
filed
his
written
statement,
however, he denied the accident. He
further took a defence that the vehicle in
question was insured with the National
Insurance Company, Aligarh and, at the
time of the accident, the driver had a valid
driving licence. He also took a plea that
the insurance of Hero Honda motorcycle
has not been impleaded and, as such, the
claim petition was liable to be dismissed.

6. The Insurance Company, opposite
party no. 2, before the Tribunal, filed a
separate written statement and denied all
the averments made on the ground of lack
of knowledge. They also pleaded that the
liability of the Insurance Company is
confined to the terms of the policy. It was
stated that the compensation sought is
excessive, at the time of the accident, the
driver did not have valid driving licence
and also the fact that the Insurance
Company of Hero Honda motorcycle was
a necessary party. It was also pleaded that
the deceased in himself responsible for
the accident and that the petition was a
collusive petition.

7. The Motor Accident Claim
Tribunal entertained the claim and after
exchange of pleadings framed as many as
five issues. The first issue pertained to the
factum to the accident. The Tribunal, after
considering the evidence, adduced before
the Tribunal held that the accident had
3 All. Smt. Anita & Ors. Vs. Jai Pal Singh & Anr.
1163
occurred as was pleaded by the claimant and
recorded a categorical finding that the
accident took place with the Vehicle No. U.P.
81-C 3949 and also recorded that the accident
took place on account of rash and negligent
driving of the Vehicle No. U.P. 81-C 3949
resulting into the death of three persons.

8. The second issue was with regard to
the fact that whether the vehicle was duly
insured with the Insurance Company. The
Tribunal placed reliance upon the insurance
policy filed as Paper No. 13-C showing that the
vehicle in question was duly insured with the
Insurance Company and held that the vehicle
was duly insured.

9. The third issue framed was with
regard to the fact that whether the driver
in question had a valid driving licence,
the Tribunal held that the burden of
discharging the fact that the driver in
question did not have a valid driving
licence, had to be discharged by the
Insurance Company, who had pleaded the
said
fact,
however,
the
Insurance
Company failed to produce any evidence
in support of their contention that the
vehicle in question was being driven by a
person not having a valid licence and thus
proceeded to hold the issue against the
Insurance Company.

10. The next issue being Issue no. 4
pertained to the non-impleadment of
Insurance Company of the motor vehicle.
The Tribunal decided the said issue
against the Insurance Company mainly on
the ground that he has already recorded
that the accident had occurred on account
of rash and negligent driving by the
Vehicle No. U.P. 81-C 3949.

11. With regard to the 5th issue
being the quantum of compensation
payable to the dependents of Rajendra
Singh, the Tribunal, after appreciating the
evidence, held that the age of the
deceased was 28 to 30 years. The
Tribunal further held that as per the
evidence and the pleadings, the deceased
used to earn Rs. 150/- per day and used to
work as mason and there was evidence on
record to suggest he used to get work for
20 to 25 days in a month, on that basis the
Tribunal held the income of the deceased
at Rs. 3,000/- per month. The Tribunal
placing reliance on a precedent held that
even as per the notional income the
income of the deceased has to be assessed
at Rs. 36,000/- per year and after
deducting of the one third amount, the
amount for the purpose of determining of
compensation, comes to Rs. 24,000/- per
year and applied in multiplier of 18. The
Tribunal held that the claimants of the
deceased were entitled to a compensation
of Rs. 4,32,000/-. The Tribunal also
awarded Rs. 2000/- towards funeral
expenses, Rs. 2500/- towards loss of
consortium, Rs. 2500/- towards loss of
estate and Rs. 5000/- towards loss of
matrimonial life and thus awarded a sum
of Rs. 4,41,500/- along with interest at the
rate of 6% per annum. It was specifically
held that the said amount, as awarded,
will
be
payable
by
the
Insurance
Company.

12. Learned counsel for the
Insurance Company-appellants has argued
that the Tribunal has erred in awarding
the compensation as the accident did not
take place with the Vehicle No. U.P. 81-C
3949. It was further argued by learned
counsel for the claimants-appellants that
the FIR in question was lodged at 12.30
P.M. on 10.11.2012, whereas the accident
had taken place at 11.00 A.M. on
09.11.2002.
The
counsel
for
the
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
appellants has also argued that the
informant was not brought to the witness
box and the eye witnesses to the accident
were not named in the FIR and their
statements were not recorded in the
criminal investigation by the police
authorities, as such, no reliance could be
given to the oral evidence of the two eye
witnesses. It was also argued that even the
said two witnesses did not give the type
of vehicle and only stated about the
number of vehicle. In sum and substance,
it was argued that it was a case of hit and
run accident and, thus, the award deserves
to be set aside.

13. The counsel for the claimantappellant in FAFO No. 2801 of 2007 has
addressed this Court on the question of
compensation and has placed reliance on the
judgement of the Apex Court in the case of
National Insurance Company Limited vs.
Pranay Sethi, (2017) 16 SCC 680. He has
also placed reliance upon a judgement of this
passed in Civil Misc. Writ Petition No. 9020
of 2007 (U.P.S.R.T.C. vs. Additional
District Judge/Special Judge), decided on
01.03.2019, to argue that the compensation
awarded by the Tribunal cannot be termed as
"just compensation" and thus prayed that the
amount so awarded by the Tribunal be
modified and enhanced, keeping in view the
law laid down by the Apex Court in the case
of Pranay Sethi (supra).

14. After hearing the counsel for the
parties, the questions that arises for
decision of the present appeals are:

(i) whether the accident took place
with the Vehicle No. U.P. 81-C 394 and ;

(ii) whether the compensation
awarded
can
be
termed
as
"just
compensation".

15. Reverting to the first issue as to
whether the accident took place with the
vehicle in question or not I have gone through
the findings recorded by the Tribunal while
deciding the Issue No. 1 wherein the two
witnesses to the accident had specifically
deposed that at the time of the accident they
were getting their engines repaired and had
witnessed the accident. They had also stated
that they tried to chase the vehicle, however,
they were not successful in chasing the vehicle.
They had specifically deposed that they had
read a number of vehicles and had also told the
others present there. In fact, the PW-3 had
specifically stated that the Vehicle No. U.P. 81C 3949 had hit the motorcycle. Placing reliance
upon the said two witnesses, the court arrived
at a finding that the accident took place on
account of rash and negligent driving bearing
Vehicle No. U.P. 81-C 3949 .In the cross
examination also the testimony of the two
witnesses could not be discredited. It is
essential to note that before the Tribunal no
evidence was led by either of the opposite
parties i.e. owner of the vehicle or the
Insurance Company to establish that the
accident did not take place on account of
accident with the Vehicle No. U.P. 81-C 3949.
Even in the present appeal there is nothing on
record to suggest or to demonstrate that there
was any error committed by the Tribunal in
recording the finding of fact with regard to
accident in question. Thus, I have no hesitation
in holding that the Tribunal has rightly
recorded a finding of fact that the accident took
place on account of rash and negligent driving
of Vehicle No. U.P. 81-C 3949. There is no
other argument advanced by the counsel for the
claimants-appellants in FAFO Nos. 2911 of
2007, 2912 of 2007 and 3007 of 2007, as
such, the said appeals are liable to be
dismissed.

16. Now, reverting to the question of
adequacy of compensation, as argued by
3 All. Smt. Anita & Ors. Vs. Jai Pal Singh & Anr.
1165
the counsel for the claimants-appellants,
the Hon'ble Apex Court in the case of
National Insurance Company Limited
vs. Pranay Sethi extensively dealt with
the question of "'just compensation" and
while dealing with the question of
awarding
compensation
for
future
prospects in cases of self-employed
persons held as under:

"Having bestowed our anxious
consideration, we are disposed to think
when
we
accept
the
principle
of
standardization,
there
is
really
no
rationale not to apply the said principle
to the self-employed 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 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
standardization 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
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

17. In conclusion, the Hon'ble Apex
Court held as under:

"In view of the aforesaid analysis,
we proceed to record our conclusions:-

(i) The two-Judge Bench in
Santosh Devi should have been well
advised to refer the matter to a larger
Bench as it was taking a different view
than what has been stated in Sarla Verma,
a judgment by a coordinate Bench. It is
because a coordinate Bench of the same
strength cannot take a contrary view than
what has been held by another coordinate
Bench.

(ii) As Rajesh has not taken note of
the decision in Reshma Kumari, which was
delivered at earlier point of time, the decision
in Rajesh is not a binding precedent.

(iii)
While
determining
the
income, an addition of 50% of actual
salary to the income of the deceased
towards future prospects, where the
deceased had a permanent job and was
below the age of 40 years, should be
made. The addition should be 30%, if the
age of the deceased was between 40 to 50
years. In case the deceased was between
the age of 50 to 60 years, the addition
should be 15%. Actual salary should be
read as actual salary less tax.

(iv) In case the deceased was
self-employed or on a fixed salary, an
addition of 40% of the established
income should be the warrant where the
deceased was below the age of 40 years.
An addition of 25% where the deceased
was between the age of 40 to 50 years
and 10% where the deceased was
between the age of 50 to 60 years should
be regarded as the necessary method of
computation. The established income
means the income minus the tax
component.

(v) For determination of the
multiplicand, the deduction for personal
and living expenses, the tribunals and the
courts shall be guided by paragraphs 30
to 32 of Sarla Verma which we have
reproduced hereinbefore.

(vi) The selection of multiplier
shall be as indicated in the Table in Sarla
Verma read with paragraph 42 of that
judgment.

(vii) The age of the deceased
should be the basis for applying the
multiplier.

(viii) 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
aforesaid
amounts
should
be
enhanced at the rate of 10% in every
three years."

18. Relying on the said decision, I
am of the view that the Tribunal has erred
in
granting
compensation
without
considering
the
question
of
future
prospects of the self-employed deceased.
I am of the specific view that the court
below ought to have considered the
question of future prospects of the
3 All. Rinki Devi & Ors. Vs. Jamuna Prasad & Ors.
1167
deceased
while
awarding
the
"just
compensation".

19. The evidence, on record, clearly
establishes that the deceased used to earn
Rs. 3,000/- per month. Thus, on the basis
of the judgement of Pranay Sethi
(supra), I deem it appropriate that an
addition of 40% should be made on the
said established income of Rs. 3,000/- as
the deceased was below the age of 40
years. Thus, I determine the salary of the
deceased Rajendra Singh for the purposes
of calculating the compensation at Rs.
3000+1200 (40% of Rs. 3,000/-) at Rs.
4200/-month

20. There being no dispute that the
age of the deceased was 28 to 30 years.
The multiplicand applicable would be 18.
Thus, the compensation payable to the
claimants on account of death of Rajendra
Singh would be 4200 x 12 x 18. Out of
the said compensation, one fourth is to be
deducted towards personal expenses as
laid down in paragraph no. 30 of the
judgement in the case of Sarla Verma vs.
Delhi Development Corporation, 2009
(6) SCC 121. Thus, the claimants are
entitled
to
the
following
amounts
9,07,200-2,26,800= Rs 6,80,400/-

21. Over and above the said amount,
the claimant would also be entitled to the
expenses of Rs. 15,000/-, Rs. 40,000/-
and Rs. 15,000/- respectively towards
conventional heads namely loss of estate,
loss of consortium and funeral expenses
as held by the Hon'ble Supreme Court in
the case of Pranay Sethi (supra).

22. Thus, the claimants are entitled
to get Rs. 6,80,400+70,000=7,50,400/-.
The said amount shall be paid to the
claimants along with interest at the rate of
8% per annum from the date of filing of
the claim petition up to the date of actual
payment. The amount already deposited
and paid by the Insurance Company shall
be deducted from the total amount to be
paid to the claimants as directed above.
The Insurance Company shall pay the
amounts as directed above within a period
of two months from today.

23. Accordingly, the First Appeal
From Order No. 2801 of 2007 is partly
allowed by modifying the compensation
payable, whereas the First Appeal From
Order Nos. 2911 of 2007, 2912 of 2007
and 3007 of 2007 are dismissed.

24. The Registry is directed to
communicate a copy of this order to the
District
Judge,
Bulandshahar
for
compliance
and
payments
to
the
claimants in accordance with law.
----------

(2019)11ILR A1167

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2019

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

F.A.F.O. No.- 3313 of 2017

Rinki Devi & Ors. ...Appellants/Claimants
Versus
Jamuna Prasad & Ors.
 ..Respondents/Defendants

Counsel for the Appellants:
Sri Kuldeep Kumar Dixit, Sri Prem
Prakash.

Counsel for the Respondents:
Sri Om Prakash Mishra, Sri Atul Pandey.