# Smt. Chandrawati & Ors v. Sri Vikas Pathak & Anr

- **Citation:** (2026) 4 ILRA 2125
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-27
- **Case number:** First Appeal From Order No. 885 of 2012
- **Bench:** Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-chandrawati-ors-v-sri-vikas-pathak-anr-52573
- **Pages:** 19

## Text

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4 All. Smt. Chandrawati & Ors. Vs. Sri Vikas Pathak & Anr.
2125
67. In view of discussion made herein above, this Court reaches a conclusion that the
impugned orders of suspension have not made any differentiation between the correctness or
legality of the decision vis-a-vis conduct of the petitioners in discharge of their duty as members of
the committee. The order impugned is clearly cursory in nature and does not indicate any
application of mind. The impugned orders dated dated 5th August 2025 and 6th August 2025 are
therefore quashed by issuance of writ in the nature of Certiorari granting liberty to authority to pass
orders afresh, if required, but only in accordance with observations and directions made here-inabove.

68. The question No. B therefore stands answered in favour of petitioners.

69. Writ petitions consequently stand allowed. Parties to bear their own costs.
----------
(2026) 4 ILRA 2125
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.04.2024

BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI, J.

First Appeal From Order No. 885 of 2012

Smt. Chandrawati & Ors. ...Appellants
Versus
Sri Vikas Pathak & Anr. ...Respondents

Issues for Consideration
(i) Whether Rule 204(7) of the U.P. Motor Vehicle Rules, 2011, requiring impleadment of the driver as a
necessary party in a claim petition under Section 166 of the Motor Vehicles Act, 1988, applies retrospectively
to claims instituted prior to its enforcement?
(ii) Whether the Motor Accident Claims Tribunal was justified in attributing 40% contributory negligence to the
deceased cyclist on the basis of the site plan and other evidence on record?
(iii) Whether, where the deceased left behind four dependent family members, deduction towards personal
and living expenses ought to be one-fourth instead of one-third while computing loss of dependency?
(iv) Whether the claimants were entitled to enhancement of compensation under the conventional heads in
accordance with the principles laid down in Pranay Sethi and Magma General Insurance Co. Ltd.?
(v) Whether the Tribunal was justified in directing investment of the major portion of the compensation in
Fixed Deposit/Monthly Income Scheme for fifteen years despite the claimants having attained majority?

Headnotes
Motor Vehicles Act, 1988 - Section 166 - U.P. Motor Vehicle Rules, 2011 - Rule 204(7) - Claim
petition - Necessary parties - Impleadment of driver - Retrospective operation.

HELD: Rule 204(7) of the U.P. Motor Vehicle Rules, 2011, making the driver of the offending vehicle a
necessary party in a claim petition under Section 166 of the Motor Vehicles Act, 1988, operates prospectively.
A claim petition instituted prior to the enforcement of the amendment cannot be held to be non-maintainable
for non-impleadment of the driver. In the absence of express legislative intent conferring retrospective
2126 INDIAN LAW REPORTS ALLAHABAD SERIES
operation, the amended Rule cannot affect pending proceedings instituted before its enforcement. The
objection regarding maintainability raised for the first time in appeal was rightly rejected. [Paras 10 to 13]

Motor Vehicles Act, 1988 - Section 166 - Motor accident claim - Contributory negligence -
Cyclist entering T-junction - Duty of care - Determination of negligence.

HELD: Though a cyclist entering a T-junction is required to exercise reasonable care for his own safety, the
driver of a motor vehicle approaching such junction owes a higher degree of care and caution. Where the
evidence on record, including the site plan and the nature of the collision, established that the offending
vehicle was being driven at a high speed without slowing down at the junction, while no independent
evidence was adduced by the respondents to substantiate their plea of exclusive negligence on the part of the
deceased, attribution of 40% contributory negligence to the deceased was excessive. In the facts and
circumstances of the case, contributory negligence attributable to the deceased was liable to be reduced to
20%. [Paras 23 to 29]

Motor Vehicles Act, 1988 - Section 166 - Rash and negligent driving - Burden of proof -
Appreciation of evidence.

HELD: Rash and negligent driving constitutes the sine qua non for maintaining a claim under Section 166 of
the Motor Vehicles Act, 1988. While determining negligence, the Tribunal is required to appreciate the entire
evidence on record, including the circumstances of the accident, the site plan and oral evidence. Mere
involvement of the offending vehicle does not by itself establish negligence; however, where the attendant
circumstances demonstrate failure of the driver to exercise due care expected at a road junction, negligence
can legitimately be inferred. [Paras 25 to 29]

Motor Vehicles Act, 1988 - Section 166 - Compensation - Deduction towards personal and
living expenses - Four dependants - Loss of dependency.

HELD: Where the deceased left behind four dependants, namely, his widow and three children, deduction
towards personal and living expenses ought to be one-fourth of the income of the deceased and not onethird. The Tribunal erred in deducting one-third towards personal expenses contrary to the principles laid
down in Sarla Verma, as affirmed in Pranay Sethi. Consequently, the loss of dependency was liable to be
recomputed by deducting one-fourth of the annual income. [Paras 30 to 33, 46 and 47]

Motor Vehicles Act, 1988 - Compensation - Conventional heads - Loss of consortium - Loss of
estate - Funeral expenses - Determination.

HELD: Compensation under the conventional heads is required to be awarded in accordance with the
principles laid down in National Insurance Co. Ltd. v. Pranay Sethi and Magma General Insurance Co. Ltd. v.
Nanu Ram. Accordingly, the claimants were entitled to ₹40,000 each towards consortium, ₹15,000 towards
loss of estate and ₹15,000 towards funeral expenses. The award made by the Tribunal under the conventional
heads was liable to be suitably enhanced. [Paras 34 to 37, 48]

Motor Vehicles Act, 1988 - Compensation - Investment of compensation - Fixed Deposit
Receipt (FDR) - Adult claimants - Release of amount.

HELD: The directions issued by the Tribunal requiring investment of the major portion of the compensation in
Fixed Deposit/Monthly Income Scheme for fifteen years were appropriate when the award was passed, some
of the claimants being minors or of young age. However, with the passage of time all the claimants had
attained majority and were capable of managing their own affairs. The protective directions contained in Rule
220-B of the U.P. Motor Vehicle Rules, 1998 and the principles laid down in General Manager, Kerala State
Road Transport Corporation v. Susamma Thomas are intended to safeguard vulnerable claimants and should
4 All. Smt. Chandrawati & Ors. Vs. Sri Vikas Pathak & Anr.
2127
not be mechanically continued after the circumstances warranting such protection have ceased to exist. The
restriction on release of the compensation amount was, therefore, liable to be removed. [Paras 39 to 45]

Motor Vehicles Act, 1988 - Section 173 - Enhancement of compensation - Modification of
award.

HELD: Since the Tribunal had erroneously assessed contributory negligence at 40%, deducted one-third
instead of one-fourth towards personal expenses, and awarded inadequate compensation under the
conventional heads, the award required modification. The total compensation payable to the claimants was
recalculated at ₹17,27,288/- with interest at the rate of 7% per annum from the date of institution of the
claim petition till realization, after adjustment of the amount already paid or deposited. [Paras 46 to 49]

Appeal partly allowed. Judgment and award modified. Compensation enhanced to ₹17,27,288/- with interest
at the rate of 7% per annum from the date of institution of the claim petition till realization. Directions
regarding long-term investment of the compensation modified. (E-14)

Case Law Cited
Machindranath Kernath Kasar v. D.S. Mylarappa and Others, AIR 2008 SC 2545 - relied on;
ICICI Lombard General Insurance Co. Ltd. v. Smt. Reena Tyagi and Others, FAFO No. 2190 of
2010 (Allahabad High Court, decided on 27.03.2017) - relied on; National Insurance Company
Ltd. v. Chamundeshwari and Others, (2021) 18 SCC 596 - referred to; Lachoo Ram and Others v.
Himachal Road Transport Corporation, (2014) 13 SCC 254 - relied on; T.O. Anthony v.
Karvarnan and Others, (2008) 3 SCC 748 - referred to; United India Insurance Co. Ltd. v. Sarita
Rani Dhaka and Others, 1994 SCC OnLine All 684 - relied on; Sarla Verma (Smt.) and Others v.
Delhi Transport Corporation and Another, (2009) 6 SCC 121 - relied on; National Insurance Co.
Ltd. v. Pranay Sethi and Others, (2017) 16 SCC 680 - relied on; United India Insurance Co. Ltd.
v. Satinder Kaur alias Satwinder Kaur and Others, 2020 SCC OnLine SC 410 - relied on; Magma
General Insurance Co. Ltd. v. Nanu Ram and Others, (2018) 18 SCC 130 - relied on; Sunita
Tokas and Another v. New India Insurance Co. Ltd. and Another, (2019) 20 SCC 688 - relied on;
General Manager, Kerala State Road Transport Corporation v. Susamma Thomas, (1994) 2 SCC
176 - relied on; A.V. Padma and Others v. R. Venugopal and Others, (2012) 3 SCC 378 - relied
on.

List of Acts / Statutes
Motor Vehicles Act, 1988; U.P. Motor Vehicle Rules, 1998; U.P. Motor Vehicle Rules, 2011.

List of Keywords
Motor accident claim; Contributory negligence; Rash and negligent driving; T-junction; U.P. Motor Vehicle
Rules, 2011; Necessary party; Prospective operation; Loss of dependency; Personal and living expenses; Four
dependants; Conventional heads; Loss of consortium; Loss of estate; Funeral expenses; Fixed Deposit Receipt
(FDR); Just compensation.

Case Arising From
Judgment and award dated 11.04.2012 passed by the Additional District Judge/Sessions Judge-02, Motor
Accident Claims Tribunal, Lucknow in Claim Petition No. 241 of 2009, Smt. Chandravati Yadav and
Others v. Vikas Pathak and Others.

Appearance for Parties
For the Appellants: Sri Balendu Shekhar and Sri Mahesh Kumar Yadav.
For the Respondents: Sri A. Rafique and Sri Anil Kumar Srivastava

(Delivered by Hon'ble Syed Qamar Hasan Rizvi, J.)
2128 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Sri Balendu Shekar learned counsel for the appellants; Sri A. Rafique, learned counsel
appearing for the respondent no. 1 and Sri Anil Kumar Srivastava, learned counsel for the
respondent no. 2-ICICI Lombard General Insurance Limited are present.

2. By means of the present Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
the appellants/Claimants have assailed the judgment and award dated 11.04.2012 passed by the
Court of Learned Additional District and Sessions Judge-02, Lucknow/Motor Accident Claims
Tribunal, Lucknow (hereinafter referred to as the "Learned Tribunal") in Claim Petition No.
241/2009 (Smt. Chandravati Yadav and Others versus Vikas Pathak and Others).

3. The facts of the case that culled out from the pleadings are that in a road accident occurred
on 15.04.2009 at 8:00 P.M. on Lucknow-Hardoi Road near Kushmora falling under the jurisdiction
of Police Station Kakori, District Lucknow, the husband of appellant no. 1 and father of appellants
no. 2 to 4 (Late) Suresh Chandra Yadav, lost his life. It is pleaded by the Appellants that the
deceased was riding his bicycle in a careful and cautious manner at time and the place of accident,
when the driver of Hyundai Santro Car bearing registration number U.P.32CM1065, insured by
respondent no. 2 (hereinafter referred to as the "offending vehicle") and owned with respondent no.
1, drove the said offending vehicle in a rash and negligent manner caused the accident by hitting
the bicycle of the deceased. As a result thereof, the deceased sustained grievous injuries and
succumbed to death at the place of accident itself. The appellants/claimants filed Claim petition
under Section 166 of the Motor Vehicles Act, 1988 that was registered as Claim Petition No.
241/2009 (Smt. Chandravati Yadav and Others versus Vikas Pathak and Others) before the Learned
Tribunal, primarily on the ground that the deceased was a government employee and was earning
monthly salary of Rs. 12,946/-, and had he survived, he would have continued to earn and maintain
his family comprising of his wife (appellant no. 1) and three children (appellants no. 2 to 4). The
appellants/claimants sought compensation to the tune of Rs. 33,00,000/- along with interest at the
rate of 12% per annum before the learned Tribunal.

4. The learned Tribunal while deciding the aforesaid Claim Petition No. 241/2009, framed the
following issues for determination:

1. क्र्ा हदनांक 15.04.09 को रात को िगभग 08.00 बजे कुशमौरा मोड़ के पास अंतगयत
िाना िेत्र काकोरी, जजिा ििनऊ में कार सं.र्ू.पी.32 सी.एम. 1065 के िािक द्वारा वाहन को
तेजी व िापरवाही से ििाते हुए साइककि पर िक्कर मारकर दुघयिना काररत की गई, जजसके
पररणामस्वरूप साइककि िािक सुरेश कुमार र्ादव को गम्भीर िोिें आईं और और इन्हीं िोिों के
कारण सुरेश कुमार र्ादव की दुघयिनास्िि पर मृत्र्ु हो गई -

2. क्र्ा दुघयिना की ततधि पर उपरोक्त कार ववपिी सं.2 आई.सी.आई.सी.आई. िोम्बाडय
जनरि इंश्र्ोरेंस कम्पनी लि. से बीलमत िी तिा बीमा पालिसी की शतों के अिीन पररिालित िी -

3. क्र्ा दुघयिना की ततधि पर उपरोक्त कार िािक के पास वैि एवं प्रभावी ड्राइववंग
िाइसेंस िा -
4 All. Smt. Chandrawati & Ors. Vs. Sri Vikas Pathak & Anr.
2129

4. क्र्ा र्ािीगण ककसी प्रततकर को पाने का अधिकारी है - र्हद हााँ तो ककससे और
ककतनी िनरालश -

5. The learned Tribunal vide Order dated 11.04.2021 passed in the aforesaid Claim Petition
No. 241/2009 awarded compensation to a tune of Rs. 10,59,692/- to the appellants/claimants along
with interest at the rate of 7% per annum. While deciding the Issue No. 1, the learned Tribunal held
contributory negligence on the part of the deceased cyclist and the driver of the offending vehicle,
thereby fixed negligence on the part of the deceased at 40% and that of the driver of the offending
vehicle at 60%. While deciding Issue No. 4 regarding the quantification of compensation, the
learned Tribunal determined the monthly income of the deceased at Rs. 12,946/- on the basis of the
'salary certificate' available on record and added 30% towards future prospects in view of the age
factor of the deceased falling between the age group of 40-50 years. However, the learned Tribunal
deducted 1/3rd towards personal and living expenses. By applying the multiplier of 13 as per the
Second Schedule to the Motor Vehicles Act, 1988, the Learned Tribunal determined the
compensation to a tune of Rs. 10,50,192/-. Further, an amount of Rs. 9500/- under conventional
heads was also added. Thus, the learned Tribunal awarded compensation to the
appellants/claimants aggregating to Rs. 10,59,692/-, with the direction that the said amount be
disbursed in the following manner:

1. श्रीमती िन्रावती आर्ु िगभग 48 वर्य पत्नी स्व. सुरेश िन्र र्ादव, को मु.
1,22,000.00 रूपए नाँगद जररए रेिांककत िैक के माध्र्म से अदा ककर्ा जाएगा, जो ककसी
राष्ट्ीर्कृत बैंक की शािा पर देर् होगा। श्रीमती िन्रावती के नाम से मु. 4,87,692.00 रूपर्े (संग
हातन को शालमि करते हुए) तिा सम्पूणय प्रततकर की िनरालश पर लमिने वािा ब्र्ाज एवं वाद
व्र्र् ककसी राष्ट्ीर्कृत बैंक की मालसक आर् 'जमा र्ोजना' में 15 वर्य के लिए इस न्र्ार्ाधिकरण
के माध्र्म से जमा ककर्े जार्ेंगे, जजस पर मालसक ब्र्ाज देर् होगा।

2. मुकेश कुमार र्ादव आर्ु िगभग 27 वर्य पुत्र स्व. श्री सुरेश िन्र र्ादव, प्रततकर की
िनरालश में से मु.30,000 रूपए नकद जररए रेिांककत िैक प्राप्त करेगा जो ककसी राष्ट्ीर्कृत बैंक
की शािा पर देर् होगा तिा शेर् मु.1,20,000 रूपए की िनरालश 15 वर्य की अवधि के लिए
मालसक आर् र्ोजना में उसके नाम से जमा की जाएगी जजस पर प्रत्र्ेक माह लमिने वािा ब्र्ाज
प्राप्त होगा, जजसे उसके भववष्र् के लिए ििय ककर्ा जा सकेगा और िन का दुरूपर्ोग नहीं हो
पाएगा।

3. कमिेश कुमार र्ादव आर्ु िगभग 25 वर्य पुत्र स्व. श्री सुरेश िन्र र्ादव, प्रततकर की
िनरालश में से मु.30,000 रूपए नकद जररए रेिांककत िैक प्राप्त करेगा जो ककसी राष्ट्ीर्कृत बैंक
की शािा पर देर् होगा तिा शेर् मु.1,20,000 रूपए की िनरालश 15 वर्य की अवधि के लिए
मालसक आर् र्ोजना में उसके नाम से जमा की जाएगी जजस पर प्रत्र्ेक माह लमिने वािा ब्र्ाज
2130 INDIAN LAW REPORTS ALLAHABAD SERIES
प्राप्त होगा, जजसे उसके भववष्र् के लिए ििय ककर्ा जा सकेगा और िन का दुरूपर्ोग नहीं हो
पाएगा।

4. कु. सरिा र्ादव आर्ु िगभग 20 वर्य पुत्र स्व. श्री सुरेश िन्र र्ादव, प्रततकर की
िनरालश में से मु. 30,000 रूपए नकद जररए रेिांककत िैक प्राप्त करेगी जो ककसी राष्ट्ीर्कृत बैंक
की शािा पर देर् होगा तिा शेर् मु.1,20,000 रूपए की िनरालश 15 वर्य की अवधि के लिए मालसक
आर् र्ोजना में उसके नाम से जमा की जाएगी जजस पर प्रत्र्ेक माह लमिने वािा ब्र्ाज प्राप्त
होगा, जजसे उसके भववष्र् के लिए लशिा दीिा पर ििय ककर्ा जा सकेगा और िन का दुरूपर्ोग
नहीं हो पाएगा।

6. Aggrieved by the aforesaid judgment and award dated 11.04.2012 passed in Claim Petition
No. 241/2009, particularly with regard to the determination of 40% contributory negligence on the
part of the deceased, deduction of 1/3rd of the deceased's monthly income towards personal and
living expenses instead of 1/4th, inadequacy of compensation under conventional heads, and award
of interest at the rate of 7% per annum instead of 12% per annum; the appellants/claimants have
preferred the instant Appeal under Section 173 of the Motor Vehicles Act, 1988.

7. At the very outset, the learned counsel for the Respondent No. 2/ ICICI Lombard General
Insurance Limited raised an objection to the effect that as per the amended Rule 204 of U.P. Motor
Vehicle Rules, 2011, the driver of the vehicle involved in the accident should be made party in
Claim petition and since the driver of the offending vehicle was not impleaded by the appellants in
the aforesaid Claim Petition No. 241 of 2009, the same was liable to be rejected on this score alone
being maintainable. Consequently, the present Appeal arising out of said Claim Petition No.
241/2009, is also non-maintainable and is liable to be dismissed.

8. Confronting the aforesaid preliminary objection regarding the maintainability of the present
Appeal, the learned counsel for the Appellants/claimants submitted that the Respondent No. 2 did
not raised the said objection before the Learned Tribunal and for the first time the same has been
raised at this appellate stage. Further, he submitted that the Claim Petition No. 241 of 2009 was
filed on 11.05.2009, while the mandatory requirement regarding impleadment of the driver as a
necessary party was introduced by way of the Eleventh Amendment to the U.P. Motor Vehicles
Rules, 2011, as Rule 204(7) to the said Rules of 2011. He contended that the said statutory
requirement was introduced much after the filing of the Claim Petition and as such, the nonimpleadment of the driver could not render the Claim Petition as non-maintainable. In support of
his contention, the learned counsel has relied upon the judgment passed by the Hon'ble Supreme
Court in the case of Machindranath Kernath Kasar versus D. S. Mylarappa reported in AIR
2008 SC 2545.

9. Before delving into the merits of the case, it would be apt to address the issue raised on
behalf of respondent No. 2 regarding the maintainability of the present Appeal arising out of the
Claim Petition No. 241of 2009.
4 All. Smt. Chandrawati & Ors. Vs. Sri Vikas Pathak & Anr.
2131

10. In so far as the objection raised by the learned Counsel for the Respondent No. 2 that nonfulfilment of the mandatory requirement stipulated under the amended Rule 204(7) of the U.P.
Motor Vehicle Rules, 2011 rendered aforesaid Claim Petition non-maintainable before the Learned
Tribunal; it is pertinent to mention that the said amendment to the Motor Vehicle Rules, 2011 has
been published in official gazette dated 26.9.2019, whereas the Claim Petition in question was filed
on 11.05.2009, i.e., much before the coming into force of said amendment to the Motor Vehicle
Rules. It is well settled in law that a legislation is applicable prospectively unless specifically
provided therein. It is trite in law that, in absence of anything in the enactment to show that it is to
be operated with retrospective effect, it cannot be so construed as to have the effect of altering the
law applicable to a claim in litigation at the time when the said act was passed.

11. For a ready reference, the Amended Rule 204(7) of the U.P. Motor Vehicle Rules, 2011 is
reproduced herein below,

"4. Amendment of Rule 204.-In the said rules, for Rule 204, the following rule shall be
substituted, namely--

"204. Application for compensation.-

(1) ...

-

(7) The driver of the vehicle, involved in the accident, shall be the necessary party in the
application for compensation filed under Section 166 of the Act."

12. The Division Bench of this Court in the case of ICICI Lombard General Insurance Co.
Ltd. versus Smt. Reena Tyagi and Others vide order dated 27.03.2017 in (FAFO No. 2190 of
2010) has held that the amendment in U.P. Motor Vehicle Rules making it mandatory to implead
the driver of the vehicle involved in the accident shall not be retrospective in operation, however,
only beneficial provision can have retrospective application.

13. In view of what has been discussed herein above establishing the the amended Rule 204(7)
of the U.P. Motor Vehicle Rules, 2011, being prospective in nature, the objection raised by the
learned counsel for the Respondent No. 2 regarding non-maintainability of the Claim Petition filed
in the year 2009 and the present Appeal arising from the same; more particularity when the said
objection/issue was never raised earlier before the learned Tribunal; stands demolished.
Accordingly, the said objection raised by the Learned Counsel for the respondent No.2 is turned
down.

14. Now, on the merits of the appeal, the contention of the learned counsel for the
appellants/claimants is that the learned Tribunal committed grave error in solely relying upon the
site plan of the place of accident submitted after a lapse of 20 days from the date of accident by the
Investigating Officer and thereby drew conclusion that there was 40% contributory negligence on
the part of the deceased. He pleaded that PW-2 (Sant Ram Yadav) categorically deposed that the
deceased was riding the bicycle carefully and the accident occurred solely due to the rash and
negligent driving of the offending vehicle. Further, on the other hand respondent Nos. 1 and 2 in
their written statements, have denied the occurrence of the accident. The said contradiction itself
unveils the truthfulness of the case of the respondents. It is vehemently argued by the learned
2132 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the appellant that there was no negligence on the part of the deceased and the entire
compensation should be awarded to the appellants/claimants without any deduction on account of
contributory negligence

15. Another ground taken by the appellants is that the learned Tribunal erred in deducting
1/3rd towards personal and living expenses while the deceased had four dependents, namely, his
wife and three children, therefore, the deduction should have been 1/4th in the present case. It has
further been contended that the learned Tribunal committed error in awarding a meagre sum of Rs.
9500/- under conventional heads, whereas each claimant is entitled to Rs. 1,00,000/- under the head
of loss of love and affection, and Rs. 50,000/- towards funeral expenses. It has also been contended
that the learned Tribunal erred in awarding interest at the rate of 7% per annum, whereas in the
facts of the present case, it should have been at the rate of 12% per annum.

16. The next submission made on behalf of the appellants/claimants is that the direction of the
learned Tribunal directing the major portion of the compensation amount awarded to the
appellants/claimants should be deposited in Fixed Deposit Receipt (FDR) or Monthly Income
Scheme for a long period of 15 years is erroneous as the accident occurred 17 years back, and all
the appellants/claimants are by now became majors, who are capable to manage their own funds. In
such circumstances, the entire amount or at least the major portion thereof is required be paid to
them directly.

17. Finally, it has been contended by the learned counsel that the appellants/claimants are
entitled to just and reasonable compensation even if they have not specifically claimed the
enhanced amount of compensation before the learned Tribunal or before this Court. By placing
reliance upon several judgments passed by the Hon'ble Supreme Court, he contended that it was
incumbent upon the learned Tribunal to award just compensation in accordance with law,
regardless of the amount claimed by the claimants.

18. Per contra, the, learned counsel appearing on behalf of the respondent no. 1, i.e., the owner
of offending vehicle; vehemently argued that the impugned judgement and award suffers from no
infirmity or perversity, as the learned Tribunal has analyzed the entire sequence of the accident
very logically, on the basis of the material available on record.

19. The learned Counsel contended that the deceased was coming from a link-lane to the
main-road, while reaching the main-road, he ought to have looked on both the sides. It was the
sudden appearance of the deceased cyclist before the offending vehicle that resulted in the accident
thereby forcing the offending vehicle to get dis-balanced and falling into a ditch. In this manner,
the percentage of contributory negligence on the part of the deceased as 40% has been rightly
determined by the learned Tribunal.

20. The learned counsel has vehemently argued that mere involvement of the driver of the
offending vehicle in the accident does not ispo facto make him liable for the accident when the
element of rash driving is absent. To buttress his argument, the learned counsel has relied upon
several judgments of the Hon'ble Supreme Court. He has argued that in the case of National
Insurance Company Ltd. versus Chamundeshwari and Others reported in (2021) 18 SCC
4 All. Smt. Chandrawati & Ors. Vs. Sri Vikas Pathak & Anr.
2133
596, it was held that each case is judged having regard to facts of the case and evidence on record.
Further, he relied upon the judgment of the Hon'ble Apex Court passed in Lachoo Ram and
Others versus Himachal Road Transport Corporation, reported in (2014) 13 SCC 254
wherein it was held that "the involvement of the bus in the accident cannot make the respondent
liable to pay compensation unless it can be held on the basis of materials on record that the
accident was caused by rash and negligent act of the driver-respondent no.2...". He argues that in
the present case, the driver of the offending vehicle was neither rash nor negligent and therefore, he
cannot be solely held liable for causing the accident.

21. Lastly, he submitted that the site plan/naksha nazri is an important piece of evidence, and
the learned Tribunal has rightly passed the judgment and award dated 11.04.2012 by taking it into
consideration the material on record particularly the naksha nazri; holding contributory negligence
of the deceased in the accident in question. To support his contention, he placed reliance on the
judgment passed by the Hon'ble Supreme Court in the case of T.O. Anthony versus Karvarnan
and Others, reported in (2008) 3 SCC 748. For a ready reference, Paragraph 8 of the said
judgment is reproduced herein-below,

"8. It is not in dispute that the Mahazar Ex. P-2 showed that the accident spot was at a
distance of 2.26 meters from the Southern edge of the tarred road and 4.79 meters from the
Northern edge of the tarred road. If the appellant was proceeding from Palakkad to Trichur (from
East to West) and the accident occurred at a distance of 2.2 meters from the southern edge of the
road and 4.79 meters from the Northern edge of the road, the inference is that the appellant was on
the right side of the road and the private bus came partly to the wrong side of the road. But the fact
that there was a head-on collision could not be ignored. The evidence shows that the appellant was
not diligent, as he neither slowed down the bus nor swerved to his left, on seeing the oncoming bus.
On the facts and circumstances we are of the view that the appellant was also partly responsible for
the accident and we fix the responsibility at 25% on the appellant and 75% on the first respondent."

22. Heard the learned counsel for the respective parties and perused the material available on
record. This Court now proceeds to examine the issues that arise for consideration in the present
appeal. For the sake of convenience and clarity, the issues are addressed in seriatim.

23. The foremost question that falls for consideration before this Court is whether the learned
Tribunal was justified in holding the deceased was guilty of 40% contributory negligence.

24. The learned Tribunal has based the above-mentioned finding of contributory negligence
primarily, if not solely, on the basis of the site plan/naksha nazri which is marked as document C15/8 placed on the record of Claim Petition. The learned Tribunal observed that the said naksha
nazri reflects that the deceased was coming from a link-road and suddenly emerged on the main
road without looking on both left and right sides, whereas the offending vehicle was proceeding on
the main-road from Hardoi towards Lucknow. The relevant finding recorded by the learned
Tribunal is extracted below:
2134 INDIAN LAW REPORTS ALLAHABAD SERIES

"...इस मामिे में दुघयिना हदनांक 15.04.09 की रात 08.00 बजे की है और प्रिम सूिना
ररपोिय िाने पर उसी हदन रात में 09.15 बजे अंककत हुई। जजसमें वाहन की नंबर हदर्ा हुआ है।
नक्शा नजरी सी-15/8 को देिने से स्पष्ि होता है कक मृतक कुशमौरा मागय से हरदोई-ििनऊ रोड
की ओर जा रही िी अिायत वह उिर से दक्षिण की ओर आ रही िी। आक्रामक वाहन हरदोई से
ििनऊ की ओर अिायत पजश्िम से पूरब की ओर जा रही िी। दुघयिना जजस स्िान पर होना
हदिार्ा गर्ा है वह ततराहा है। नक्शा नजरी से स्पष्ि होता है कक मृतक हरदोई-ििनऊ मुख्र्
मागय पर आ रहा िा। तभी हरदोई की ओर से आ रही कार ने साइककि में िक्कर मारी जजससे
मृतक उस स्िान से काफी आगे धगरा और साइककि उससे दूर जाकर धगरी। इन पररजस्िततर्ों से
र्ह भी स्पष्ि है कक िक्कर जोरदार िी और र्ह तभी संभव है जब आक्रामक वाहन की गतत
काफी तेज हो। साइककि से आने वािे व्र्जक्त की गतत काफी तेज नहीं हो सकती। वाहन िािक
का दातर्त्व िा कक वह गतत पर तनर्ंत्रण रिते हुए अपने वाहन को ििाता और ततराहे के पास
वाहन को िीमा करता। इसी प्रकार साइककि िािक का भी दातर्त्व िा कक ततराहे पर आने के पूवय
अपनी बाईं ओर दाईं ओर देिता कक कोई वाहन तो नहीं आ रहा है। इस संबंि में र्ह प्रतीत होता
है कक दोनों मृतक और वाहन िािक की र्ोगदार्ी उपेिा दुघयिना में रही है, ककन्तु कार िािक का
दातर्त्व साइककि िािक की अपेिा अधिक है। जजस स्िान पर िक्कर िगी और जहााँ पर शव
लमिा उनमें काफी दूरी है, जो स्वर्ं दशायता है कक िक्कर के समर् वाहन तेज गतत में िा। इन
पररजस्िततर्ों को देिते हुए इस मामिे में वाहन कार िािक की उपेिा 60 प्रततशत तिा मृतक
साइककि सवार की उपेिा 40 प्रततशत तनिायररत की जाती है। बबन्दु सं. 1 तदनुसार तनस्ताररत ककर्ा
जाता है"
(Emphasis supplied by this court)

25. Needless to say that rash and negligent driving is sine quo non for deciding a Claim
petition under section 166 of the Motor Vehicles Act, 1988. The Hon'ble Supreme Court in the case
of Lachoo Ram (Supra) is has very explicitly held that the driver/owner of the vehicle causing the
accident is not liable to pay compensation unless it can be held on the basis of materials on record,
the accident was caused by rash and negligent act of the said driver of the vehicle. Moreover, it is
necessary for the courts to appreciate the evidence on record, in order to ascertain whether the
driver of the vehicle causing the accident was rash and negligent and in case he was rash and
negligent, then, to ascertain as to the degree of the driver's negligence. In ascertaining the aforesaid
negligence the facts speaks for itself. In this regard, it is worth noting that in the case of United
India Insurance Company versus Sarita Rani Dhaka and Others reported in 1994 SCC OnLine All
684, the Hon'ble Supreme Court, after considering the facts of the said case, held that,

"4. -it is clear that driver of the oil tanker was negligent in driving the vehicle resulting in
the accident by applying the principle of Res ipsa loquitor. Therefore, owner is vicariously liable
for negligent act of the driver and insurer which has covered the risk of the owner in respect of the
4 All. Smt. Chandrawati & Ors. Vs. Sri Vikas Pathak & Anr.
2135
vehicle has rightly been directed to pay compensation to the claimants who are dependents of the
deceased."

26. Upon a careful reappraisal of the material available on record, this Court finds that the
finding returned by learned Tribunal holding contributory negligence on the part of the deceased, to
the extent of 40% requires reconsideration. The material on record, including the site plan/naksha
nazri and the deposition of PW-2 namely, Sant Ram Yadav, indicates that the accident occurred at
a T-junction on the main road, where it is obvious that a higher degree of caution was expected
from the driver of the offending vehicle. The nature of the impact and the force of collision
reasonably suggest that the offending vehicle was being driven at a high speed and that its driver
failed to slow down his vehicle and did not followed due care while approaching the said Tjunction (place of accident).

27. Further, it is relevant to note that the respondents had taken the specific plea in their
written statement that the accident occurred due to the sole negligence of the deceased but failed to
produce any independent evidence to substantiate their plea.

28. However, at the same time, it cannot be overlooked that the deceased, being a cyclist
entering at the said T-junction, was also under duty to exercise reasonable care for his own safety.
Although, the evidence that has been placed on record does not indicate any reckless or deliberate
act on the part of the deceased, a lapse in vigilance on his part cannot be completely ruled out as
well. In such circumstances, the principle of contributory negligence is attracted, though the extent
(percentage) thereof as assessed by the learned Tribunal appears to be on the higher side.

29. After considering the aforesaid facts in its totality and having regard to the fact that the
driver of the offending vehicle was under a greater obligation to anticipate and avoid harm at a Tjunction, this Court is of the considered opinion that fixing negligence at 40% on the part of the
deceased is disproportionate in the facts and circumstances of the case in hand, especially when
there is no such evidence to substantiate the negligence on part of the deceased, except some lapse
in vigilance. The ends of justice would be met by reducing the extent of the contributory negligence
on part of the deceased to 20%, in place of 40%.

30. The second issue that falls for consideration before this court is regarding the deduction of
1/3rd of the deceased's income towards personal and living expenses.

31.The issue of deduction towards personal and living expenses of the deceased has been dealt
in detail by the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) and others versus
Delhi Transport Corporation and another, reported in (2009) 6 SCC 121. The said judgment
has been upheld by the Constitution Bench of the Hon'ble Supreme Court in the case of National
Insurance Company Ltd. versus Pranay Sethi and Others, reported in (2017) 16 SCC 680,
and, later on, followed in the case of United India Insurance Company Ltd. versus Satinder Kaur
alias Satwinder Kaur and others, reported in 2020 SCC OnLine SC 410.

32. It would be apt to quote the relevant portion of the judgment passed in the case of Sarla
Verma (Supra), wherein the Hon'ble Apex Court was pleased to hold that,
2136 INDIAN LAW REPORTS ALLAHABAD SERIES

"30. Though in some cases the deduction to be made towards personal and living
expenses is calculated on the basis of units indicated in Trilok Chandra [(1996) 4 SCC 362], the
general practice is to apply standardised deductions. Having considered several subsequent
decisions of this Court, we are of the view that where the deceased was married, the deduction
towards personal and living expenses of the deceased, should be one-third (1/3rd) where the
number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent
family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members
exceeds six."
[Emphasis supplied]

33. Taking into consideration the facts of the present case in light of the law laid down by the
Hon'ble Apex Court in the case of Sarla Verma (Supra), this Court is of the opinion that the
learned Tribunal erred in deducting 1/3rd towards personal and living and expenses when the
deceased had four dependents, namely his wife and three children. As such it would be lawfully
justified that the said deduction should have been only 1/4th in the present case.

34. The third issue that falls for consideration before this Court is regarding the calculations of
damages, loss of consortium and the multiplier under the conventional head of the Second Schedule
appended with the Motor Vehicles Act, 1988 and as per the principles laid down by the Hon'ble
Supreme Court. In the case of National Insurance Company Ltd. versus Pranay Sethi and
Others reported in (2017) 16 SCC 680, the Hon'ble Apex Court observed that the conventional
damage amount needs to be appositely determined and thereby the Hon'ble Apex Court revisited
the practice of awarding compensation under conventional heads. For a ready reference, Paragraph
52 of the judgment passed in the case of Pranay Sethi [Supra] is reproduced herein-below,

"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.