# Smt. Ganpat Devi v. Istiyaq Ahmad & Anr

- **Citation:** (2022) 10 ILRA 746
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-10
- **Case number:** First Appeal From Order No. 614 of 2010
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ganpat-devi-v-istiyaq-ahmad-anr-47782
- **Pages:** 15

## Headnote

Civil Law - Motor Vehicle Rules, 1998Enhancement of compensation-Rule 220A(3) -future prospects to be included-to the
extent of 30% of the salary-Tribunal not
awarded-award
of
compensation
under
conventional heads to be added-not added by
the Tribunal-awarded compensation modifies.

Appeal allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,971 of 48,479. This is a partial read: ask again with offset=39971 for what follows._

746 INDIAN LAW REPORTS ALLAHABAD SERIES
P.W.1 and P.W.2 herein above, submission
urged by learned counsel for revisionist is
by itself unable to dislodge the credibility
and reliability of P.W.1 and P.W.2 at this
stage, wherein complicity of revisionist in
the crime in question stands established.

46. Apex Court in Rajesh and Others
(Supra), Sugreev Kumar (Supra), Shiv Prakash
Mishra (Supra) and Sartaj Singh (Supra)
considered the veracity of order passed on an
application under section 319 Cr.P.C. wherein
prospective accused were summoned in cases
under section 302, 307 IPC or both. In all the
cases referred to above, Court has meticulously
examined the testimonies of prosecution
witnesses in each of above mentioned case in
the light of tests laid down by Apex Court in
Hardeep Singh (Supra) and S.Mohammed
Ispahani (Supra) and after undertaking
aforesaid exercise has proceeded to decide
whether on the testimony of prosecution
witnesses, prospective accused could be
summoned or not.

47. The same procedure as adopted by
Court in judgements referred to above in
preceding paragraph has been applied in
present case. Court has not come across
any such material to conclude that Court
below has not exercised its jurisdiction
"diligently" and revisionist has been
summoned by Court below in a "casual and
caviliar manner". Deposition of P.W.1 and
P.W.2 falls in the realm of "strong and
cogent evidence" and satisfies the twin test
laid down by Constitution Bench in
paragraph 105 of the judgement in
Hardeep
Singh
(Supra).
It
clearly
establishes complicity of revisionist in the
crime in question.

48. For all the facts and reasons
recorded above, this Court does not find
any good ground to interfere in this
revision.
The
Revision
lacks
merit,
therefore, same is liable to be dismissed.

49. It is, accordingly, dismissed.
----------
(2022) 10 ILRA 746
APPELLATE JURISDICTION
CIVIL SIDE
DATED: AlLAHABAD 10.08.2022

BEFORE

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

First Appeal From Order No. 614 of 2010

Smt. Ganpat Devi ...Appellant
Versus
Istiyaq Ahmad & Anr. ...Respondents

Counsel for the Appellant:
Sri Ram Singh

Counsel for the Respondents:
Sri Anand Kumar Sinha

Civil Law - Motor Vehicle Rules, 1998Enhancement of compensation-Rule 220A(3) -future prospects to be included-to the
extent of 30% of the salary-Tribunal not
awarded-award
of
compensation
under
conventional heads to be added-not added by
the Tribunal-awarded compensation modifies.

Appeal allowed. (E-9)

List of Cases cited:

1. United India Insurance Company Vs Smt.
Mamta Rani & ors., First Appeal From Order No.
1699 of 2013, decided on 19.07.2022

2. National Insurance Co. Ltd. Vs Rekhaben &
ors., (2017) 13 SCC 547

3. Sarla Verma (Smt.) & ors. Vs Delhi Transport
Corporation & anr., (2009) 6 SCC 121

4. Vimal Kanwar & ors. Vs Kishore Da, (2013) 7
SCC 476
10 All. Smt. Ganpat Devi Vs. Istiyaq Ahmad & Anr.
747
5. National Insurance Company Vs Pranay Sethi
& ors., (2017) 16 SCC 680

6. Vimal Kanwar & ors. Vs Kishore Dan, (2013)
7 SCC 476

7. Smt. Shanti & ors. Vs Anil Awasthi @ Anil
Kumar Awasthi & anr., First Appeal From Order
No. 866 of 2011 and connected appeals,
decided on May 30, 2022

8. Sushil Kumar & ors. Vs M/s. Sampark Lojastic
Pvt. Ltd. & ors., First Appeal From Order No.
2581 of 2011, decided on 26.04.2017

9. New India Assurance Co. Ltd. Vs Urmila
Shukla, 2021 SCC OnLine SC 822

10. Jiuti Devi & ors. Vs Manoj Kumar & ors.,
2022 SCCOnLine All 46
(Delivered by Hon'ble J.J. Munir, J.)

This is a claimant's appeal, arising out
of the judgment and award passed by the
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.12, Allahabad, dated 31.10.2009 in
Motor Accident Claims Petition No. 420 of
2008. The claimant, who

2. The facts giving rise to this appeal lie
in a narrow compass. Narrower still, would
be the reference to facts of the case, and
proceedings before the Tribunal, because the
issue involved in this appeal is about
adequacy of compensation alone. Smt.
Ganpati Devi is the claimant, who is in
appeal. She will hereinafter be referred to as
"the claimant". Her husband was the victim
of a motor accident caused by the vehicle
bearing Registration No. UP-70M/5044, said
to be driven rashly and negligently. The
claimant's husband, in consequence of the
accident, sustained injuries, to which he
succumbed. The accident occurred on
23.04.2008 at the Imli Tiraha, Transport
Nagar, P.S. Dhoomanganj, District Prayagraj.
The deceased was aged 49 years at the time
of the mishap. He was employed as a driver
with the Jal Nigam and drew a monthly
salary of ₹8,933/-.

3. The claimant asserts that on
account of her husband's demise in the
accident, she has sustained financial loss,
besides suffering mental agony. She moved
the Tribunal to recover from the owner of
the vehicle as well as the insurer, a sum of
₹14,73,000/-
in
compensation.
The
Tribunal, by the impugned judgment, has
awarded a sum of ₹1,61,232/- together with
6% simple interest from the date of
institution of the claim petition until
realization.

4. Aggrieved by the quantum of
compensation awarded by the Tribunal, the
claimant has come up in appeal.

5. Ishtiak Ahmad is the owner of the
offending vehicle, whereas the National
Insurance
Company,
Civil
Lines,
Allahabad are its insurers. Ishtiak Ahmad
shall hereinafter be referred to as "the
owner", whereas the National Insurance
Company Limited, Civil Lines, Allahabad
shall hereinafter be called "the insurers".

6. The learned Counsel for parties
have addressed this Court on the issue of
quantum alone and not the other issues
dealt with by the Tribunal, about which
there is no cavil before this Court.

7. Heard Mr. Ram Singh, learned
Counsel for the claimant and Mr. Anand
Kumar Sinha, learned Counsel for the
insurers. No one appeared on behalf of the
owner. I have perused the record.

8. The deceased, Banshilal Yadav was
a driver in the employ of the Uttar Pradesh
748 INDIAN LAW REPORTS ALLAHABAD SERIES
Jal Nigam, Allahabad and attached with the
Executive Engineer, Construction Division
of the said Nigam. He was drawing a salary
of ₹8,033/- per month. In order to prove the
deceased's income, the claimant has filed
her husband's salary certificate bearing
Paper No. 19 ग1. The said certificate has
been issued by the Executive Engineer,
Construction Division, U.P. Jal Nigam,
Allahabad. The Tribunal has recorded a
finding that no evidence in rebuttal, or to
contradict the said salary certificate, has
been produced by the owner or the insurers.
In the circumstances, the salary certificate
has been accepted. The Tribunal has
recorded that the basic salary of the
deceased was ₹4700/-, to which was added
a sum of ₹3478/- towards dearness
allowance. In addition, the deceased was
also in receipt of ₹680/- per month towards
house rent allowance, which was added to
his salary. The deceased was, thus, found to
be in receipt of a monthly salary of
₹8,858/-.

9. The Tribunal proceeded to
determine the compensation payable on the
basis of the aforesaid monthly income. The
annual income was determined by the
Tribunal at a figure of ₹1,61,296/- by
multiplying the monthly income with the
figure of '12'. A one-third was deducted
towards personal expenses of the deceased,
which would be a sum of ₹35,432/-. Thus,
the annual dependency was determined at a
sum of ₹71,864/-. The Tribunal, however,
did not take the sum last mentioned to be
the annual dependency, on the basis of
which, compensation would be calculated.
The Tribunal took note of the evidence of
the claimant, who testified as PW-1, to hold
that it was acknowledged that the claimant
was in receipt of a pension of ₹5000/- per
mensem. The Tribunal, accordingly, held
that the claimant received a sum of
₹60,000/- annually towards pension. The
evidence
of
the
witness
was
also
considered to conclude that the deceased's
son Pramod Kumar had been granted
employment under The U.P. Recruitment
of Dependants of Government Servants
Dying-in-Harness
Rules,
19741.
The
Tribunal, therefore, concluded that the sum
of money received by the claimant in
pension had to be deducted from the annual
dependency. Thus, out of the annual
dependency of ₹71,864/-, a sum of
₹60,000/- was deducted to determine the
annual dependency for the claimant at a
sum of ₹11,864/-. To the aforesaid sum, a
multiplier of '13' was applied in accordance
with the Second Schedule to the Motor
Vehicles Act. This was done as the
deceased
was
aged
49
years.
The
dependency of ₹11,864/-, upon application
of the multiplier of '13', led the Tribunal to
determine the substantive compensation
payable at a figure of ₹1,54,232/-. To this
were added, under the conventional heads,
a sum of ₹5000/- towards compensation for
loss of consortium and a sum of ₹2000/-
towards funeral expenses. Accordingly, the
total compensation determined was a figure
of ₹1,62,232/-. The Tribunal directed that
the compensation awarded would carry
interest at the rate of 6% per annum from
the date of institution of the claim petition
until
realization.
There
were
certain
directions
regarding
investment
of
₹25,000/- each in Fixed Deposits in the
names of Km. Kiran and Punit Kumar, the
daughter and the son of the deceased. There
were some other ancillary directions
regarding investment of the sum of money
payable to the claimant.

10. It has been noticed that though the
claim petition has been solely filed by the
claimant, who is the deceased's widow, but
she is not the only heir and dependent. The
10 All. Smt. Ganpat Devi Vs. Istiyaq Ahmad & Anr.
749
deceased in this case left behind six heirs,
to wit, the claimant, a son Pramod Kumar
Yadav aged about 29 years, a married man,
Suman Devi aged about 24 years, a married
daughter, Km. Kiran aged about 19 years,
an unmarried daughter, Punit Kumar Yadav
aged about 18 years, an unmarried son and
Bachai Lal Yadav aged about 65 years, his
father.

11. The Tribunal has remarked that
since Pramod Kumar Yadav has been given
compassionate appointment, he cannot be
regarded a dependent of the deceased.
Likewise, the married daughter, Suman
Devi is not a dependent of her father's. The
widow, that is to say, the claimant besides
Km. Kiran and Punit Kumar alone have
been
regarded
as
the
deceased's
dependents. There is absolutely no mention
made of the deceased's father, a man of 65
years.

12. Mr. Ram Singh, learned Counsel
for
the
claimant,
has
criticized
the
exclusion of the adult son, who has been
granted compassionate appointment from
amongst the deceased's dependants for the
purpose of determining the personal
expenses.
He
has
also
assailed
the
exclusion of the deceased's old father from
amongst his dependants by the Tribunal. It
is argued that the deceased's son, prior to
his compassionate appointment and post
the deceased's demise, was as much a
dependant of his father's as the other two
unmarried siblings. It has been further
argued that the deceased's father was an old
man of 65 years, and there is no evidence
that he was financially independant at that
age. He is a senior citizen, with no recorded
income of his own. As such, according to
the learned Counsel for the claimant, he has
to be counted as one of the deceased's
dependants. Counting in the deceased's son
Pramod Kumar Yadav and his father, the
deceased's dependants would figure five
souls in all - not three, entitling the
claimant to a deduction of one-fourth
towards personal expenses, rather than a
one-third, as directed by the Tribunal.

13. On the other hand, Mr. Anand
Kumar Sinha, learned Counsel for the
insurers has supported the Tribunal's
determination of the deduction to be
directed on account of personal expenses of
the deceased. He submits that the elder son,
Pramod Kumar Yadav, has been granted
compassionate appointment, which would
not entitle him to qualify as a dependant of
anyone. The father is a 65-year-old man
and it has to be presumed that he would
have an income of his own. He cannot also
be regarded as a dependant. Learned
Counsel for the insurers, therefore, says
that the Tribunal is right in deducting a
one-third from the deceased's income
towards personal expenses, inasmuch as the
deceased
had
no
more
than
three
dependants, already indicated.

14. Upon a consideration of the
matter, this Court finds that the deceased's
elder son, Pramod Kumar Yadav was, no
doubt, a man of mature years, being aged
29 years, and a married man, at that. Still,
in these days of scarcity of employment, no
presumption of gainful occupation about a
29-year-old man, even married, who has a
father to support, with a recorded source of
income, can be drawn.

15. To the contrary, this Court is of
opinion that the fact that Pramod Kumar
Yadav has been granted compassionate
appointment by his father's employers, who
are a State employer under the Rules of
1974, treating him to be the deceased's
dependant family member, is evidence
750 INDIAN LAW REPORTS ALLAHABAD SERIES
enough to infer that Pramod Kumar Yadav
was not gainfully employed at the time of
his father's demise. He was a dependant of
his
father's.
Likewise,
regarding
the
deceased's father aged about 65 years, there
is not the slightest evidence to show that
that he had a gainful employment at that
age or an income of his own.

16. Amongst the dependents, the
claimant has testified in her examinationin-chief that her father-in-law is alive. She
has described the members of her family
and gone on to say that all of them were
dependant upon the deceased's salary. In
the cross-examination of P.W.-1 Ganpat
Devi, there is no question or suggestion put
to her on behalf of the insurers that the
deceased's father was gainfully employed at
the age of 65 years or that he had an
income of his own from any source. In the
circumstances, being a senior citizen of 65
years, this Court is of opinion that the
deceased's father must be regarded as one
of his dependants.

17. There is one more issue which
Mr. Sinha has raised, and that brings us
back to Pramod Kumar's entitlement as a
dependant.
This
issue
is
that
once
appointed on compassionate grounds in the
deceased's stead, Pramod Kumar Yadav
may not be regarded as a dependant at all.
The Tribunal has accepted the said
submission. In the opinion of this Court,
the Tribunal has done so in manifest error.
The mere fact that the elder son got an
employment on compassionate basis in
place of the deceased would not lead to the
conclusion that he was not a dependant.

18. I had occasion to consider this
question in United India Insurance
Company v. Smt. Mamta Rani and
others2. Repelling an identical contention
advanced there on behalf of the insurers, it
was held in Smt. Mamta Rani (supra) :

31. The submission of learned
Counsel for the insurers that the adult son
of the deceased, who has been given
compassionate appointment, must not be
counted amongst his dependents, is not
worthy of acceptance. This submission has
been urged in the past to claim deduction
from the dependency put forth by the
claimants. This was the issue before the
Supreme Court, put in a different manner
on behalf of the insurers, in National
Insurance
Company
Limited
v.
Rekhaben and others3. There the issue
was raised in terms that can best be
understood by reference to the words of
their Lordships in the report. These read :

11. The main contention of the
appellant in these appeals is that the
amount of salary received by the claimants
being appointed by the employers of the
deceased on compassionate grounds must
be
reduced
from
the
award
of
compensation made in favour of the
claimants. Thus, the only issue before us in
these appeals is whether the income of the
claimants from compassionate employment
is liable to be deducted from the
compensation amount awarded by the
Tribunal under the statute.

32. The issue was differently
posed in Rekhaben (supra), but ultimately
at the bottom of it, it is identical to the
contention that Mr. Sinha raises before this
Court. The contention, perhaps, has been
differently put on behalf of the insurers in
order to escape the principle that is laid
down in Rekhaben and a number of other
decisions of various High Courts that have
not favoured any deductions from the
compensation on account of compassionate
10 All. Smt. Ganpat Devi Vs. Istiyaq Ahmad & Anr.
751
appointment, granted to one of the
dependents of the deceased.

33. Mr. Sinha has sought to argue
that the deceased's adult son was no longer
a dependent of the deceased, being
favoured with compassionate appointment
in consequence of his demise. The issue, in
substance, is answered against the insurers
in Rekhaben by the Supreme Court, but, to
dispose of a novel rendition of the same
contention urged on behalf of the insurers
by Mr. Sinha, it must be remarked that until
time that the deceased passed away in
consequence of the accident, the adult son
was one of the deceased's dependents.
Right to compensation stood crystallized on
the date of the victim's death. The day the
deceased passed away, the claimants
sustained
the
loss,
which
was
the
dependency. The deceased's adult son was
24 years old. If the deceased had survived,
the adult son might have improved his
educational qualifications or looked for
better prospects. There is no logic or
principle by which on the grant of
compassionate appointment, the adult son
of the deceased is to be counted out of the
dependents.

19. In view of my holding in Smt.
Mamta Rani and the guidance of the
Supreme Court in National Insurance
Company Limited v. Rekhaben and
others4, there is absolutely no substance in
the submission put forth on behalf of the
insurers or the opinion of the Tribunal that
upon compassionate appointment being
granted to the deceased's son, he is no
longer to be counted as one of the
dependants. The deceased's elder son is,
therefore, held to be one of the family
members dependent upon him at the time
of his demise. Likewise, the deceased's
father, who is a senior citizen with no
evidence about gainful employment at that
age, or income, has also to be regarded as
one
of
the
dependants.
In
the
circumstances, the deceased must be held
to have left behind five dependants,
counting out, of course, the married
daughter Smt. Suman Devi.

20. In view of the principle about
deduction towards personal expenses of the
deceased laid down by the Supreme Court
in Sarla Verma (Smt.) and others v.
Delhi
Transport
Corporation
and
another5, the deduction of a one-fourth
towards the deceased's personal expenses
would be the correct quantification on this
count. In Sarla Verma (supra) it has been
held :

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.

21. The deceased having left behind
five dependent family members, the case
would fall in the bracket of 4-6, which
would attract the deduction of a one-fourth
from the deceased's income towards
personal expenses, as already remarked.
The Tribunal was, therefore, not right in
directing a deduction of a one-third towards
752 INDIAN LAW REPORTS ALLAHABAD SERIES
personal expenses of the deceased while
working out the dependency.

22. The other deduction, that the
learned Counsel for the appellant has
scathingly criticised, is on account of
family pension that the claimant receives
for her husband's services rendered to his
employers. The Tribunal has, in working
out the dependency, deducted the entire
sum of family pension, being a figure of
₹60,000/-, from the annual dependency of
₹71,864/-. It is on the annual dependency
of ₹11,864/- alone, that the Tribunal has
applied the multiplier to work out the
substantive dependency, that would serve
as
the
basis
for
determining
the
compensation
payable.
The
learned
Counsel for the Insurance Company, Mr.
Sinha has supported the said view and
submits that the pension that the claimant
receives
from
the
employers
would
constitute ''pecuniary advantage' that is
liable to be deducted from the dependency.
This Court is afraid that Mr. Sinha is not
right in the aforesaid submission of his.
This question has engaged the attention of
the Supreme Court more that once and has
been squarely answered against the insurers
in Vimal Kanwar and others v. Kishore
Dan6, where it was held :

18. The first issue is "whether
provident fund, pension and insurance
receivable by the claimants come within
the periphery of the Motor Vehicles Act to
be termed as ''pecuniary advantage' liable
for deduction".

19. The aforesaid issue fell for
consideration before this Court in Helen C.
Rebello v. Maharashtra SRTC [(1999) 1
SCC 90 : 1999 SCC (Cri) 197] . In the said
case, this Court held that provident fund,
pension, insurance and similarly any cash,
bank balance, shares, fixed deposits, etc.
are all a "pecuniary advantage" receivable
by the heirs on account of one's death but
all these have no correlation with the
amount
receivable
under
a
statute
occasioned only on account of accidental
death. Such an amount will not come
within the periphery of the Motor Vehicles
Act to be termed as "pecuniary advantage"
liable for deduction. The following was the
observation and finding of this Court: (SCC
pp. 111-12, para 35)

"35. Broadly, we may examine
the receipt of the provident fund which is a
deferred payment out of the contribution
made by an employee during the tenure of
his service. Such employee or his heirs are
entitled to receive this amount irrespective
of the accidental death. This amount is
secured, is certain to be received, while the
amount under the Motor Vehicles Act is
uncertain and is receivable only on the
happening of the event viz. accident, which
may not take place at all. Similarly, family
pension is also earned by an employee
for the benefit of his family in the form
of his contribution in the 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. Similarly, life insurance
policy is received either by the insured or
the heirs of the insured on account of the
contract with the insurer, for which the
insured contributes in the form of premium.
It is receivable even by the insured if he
lives till maturity after paying all the
premiums. In the case of death, the insurer
indemnifies to pay the sum to the heirs,
again in terms of the contract for the
premium paid. Again, this amount is
receivable by the claimant not on account
of any accidental death but otherwise on
10 All. Smt. Ganpat Devi Vs. Istiyaq Ahmad & Anr.
753
the insured's death. Death is only a step or
contingency in terms of the contract, to
receive the amount. Similarly any cash,
bank balance, shares, fixed deposits, etc.
though are all a pecuniary advantage
receivable by the heirs on account of one's
death but all these have no co-relation with
the amount receivable under a statute
occasioned only on account of accidental
death. How could such an amount come
within the periphery of the Motor Vehicles
Act to be termed as ''pecuniary advantage'
liable for deduction. When we seek the
principle of loss and gain, it has to be on a
similar and same plane having nexus, inter
se, between them and not to which there is
no semblance of any co-relation. The
insured (the deceased) contributes his own
money for which he receives the amount
which
has
no
co-relation
to
the
compensation computed as against the
tortfeasor for his negligence on account of
the accident. As aforesaid, the amount
receivable as compensation under the Act
is on account of the injury or death without
making any contribution towards it, then
how can the fruits of an amount received
through contributions of the insured be
deducted out of the amount receivable
under the Motor Vehicles Act. The amount
under this Act he receives without any
contribution.
As
we have
said,
the
compensation payable under the Motor
Vehicles Act is statutory while the amount
receivable under the life insurance policy is
contractual."

(emphasis by Court)

23. In view of the aforesaid position
of the law, it is held that the Tribunal was
in error in directing from the annual
dependency, deduction of the monthly
pension received by the claimant. So far as
the applicable multiplier is concerned, the
same is governed by the Schedule set out in
Paragraph No. 40 of the decision in Sarla
Verma.
The
deceased
has
been
unquestionably held to be aged 49 years
and would, therefore, fall in the age bracket
of 46-50 years stipulated in Sarla Verma.
The applicable multiplier is ''13'. The
Tribunal has applied a multiplier of ''13' to
the annual dependency to work out the total
dependency. This Court is in agreement
with the Tribunal about the applicable
multiplier. Learned Counsel for parties also
do not seriously dispute the aforesaid view
of the Tribunal.

24. The next limb of the submission
that has been advanced by learned Counsel
for the claimant and which has been
vociferously opposed by learned Counsel
for the insurers is about the future
prospects. Mr. Ram Singh, learned Counsel
for the claimant argues that Rule 220-A(3)
of the Uttar Pradesh Motor Vehicles Rules,
19987 would govern the award of future
prospects in this case, because the deceased
was a government servant, a salaried
employee. Mr. Anand Kumar Sinha learned
Counsel for the insurers, on the other hand,
is equally emphatic in his submissions that
Rules of 1998 would not apply. He submits
that, at best, future prospects can be
determined
in
accordance
with
the
principles
laid
down
in
National
Insurance Company v. Pranay Sethi and
others8. Mr. Sinha submits that the Rules
of 1998 would not be attracted to the
present case, because the said rule was
introduced by way of an amendment, which
was enforced w.e.f 26.09.2011 governing
the issue of future prospects, whereas the
accident
in
this
case
occurred
on
23.04.2008. He submits that amendment to
Rule 220-A(3) being one that introduces a
new right, is substantive law and would not
operate retrospectively in the absence of an
express provision in that behalf.
754 INDIAN LAW REPORTS ALLAHABAD SERIES

25. Elaborating his submissions, Mr.
Sinha says that right to add future prospects
to one's income was, for the first time,
introduced by the decision of the Supreme
Court in Sarla Verma, which was decided
on 15.04.2009. The amendment in the
Rules of 1998, inserting inter-alia Rule
220-A, of which sub-Rule (3) is a part, is
inspired by the decision in Sarla Verma.
Sarla Verma had, for the first time,
granted future prospects to permanent
employees in a government job, as the
learned Counsel argues. The Rule grants it
to government employees and the selfemployed also. The Rule, therefore, brings
in a new right and cannot be construed to
retrospective in operation.

26. This Court is not in agreement
with the aforesaid submission advanced on
behalf of the learned Counsel for the
insurers. The question is whether Rule 220A(3) would apply to the present case
because
the
accident
happened
on
23.04.2008, whereas Rule 220-A(3) was
introduced vide Notification No. 777/XXX4-2011-4(3)-2010 dated September 26,
2011 (Eleventh Amendment Rules, 2011).
The said rules have been held by me to
apply retrospectively in Smt. Shanti and
others v. Anil Awasthi alias Anil Kumar
Awasthi and another9, following the
decision of a Division Bench of this Court
in Sushil Kumar and others v. M/s.
Sampark Lojastic Private Limited and
others10. There is, therefore, no doubt that
Rule 220-A(3) of Rules of 1998 would
govern future prospects payable to the
claimant here. Rule 220-A(3) of the Rules
of 1998 reads :

220-A.
Determination
of
Compensation-

(1) X X X

(2) X X X

(3) The future prospects of a
deceased, shall be added in the actual
salary or minimum wages of the deceased
as under-

(i)
Below
40
years of age
:
50% of the
salary
(ii)
Between
4050 years of
age
:
30% of the
salary
(iii) More than 50
years
:
20% of the
salary
(iv)
When
wages
no sufficiently
proved
:
50% towards
inflation and
price index

27.
 The
issue
whether
future
prospects would be governed by the
decision of the Supreme Court in Pranay
Sethi or Rule 220-A(3), since both govern
the same right, was considered by the
Supreme Court in New India Assurance
Company Limited v. Urmila Shukla11.
Urmila Shukla (supra) was an appeal that
arose out of a decision of this Court and is,
therefore, applicable, without doubt, to the
determination of future prospects in the
State of Uttar Pradesh. In Urmila Shukla,
the question that was considered by their
Lordships reads :

4. The basic ground of challenge
by the appellant is that sub-rule 3(iii) of
Rule 220A is contrary to the conclusions
arrived at by the Constitution Bench of this
Court in National Insurance Company Ltd
v. Pranay Sethi reported in (2017) 16 SCC
680.

28. The issue was answered in
Urmila Shukla thus :
10 All. Smt. Ganpat Devi Vs. Istiyaq Ahmad & Anr.
755

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 Sethiwas 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 Sethi cannot be taken to have limited
the operation of such statutory provision
specially when the validity of the Rules was
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 Sethi cannot 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."

29. In the opinion of this Court,
therefore, so long as Rule 220-A(3) is there
on the statute book, future prospects have
to be worked out according to the Rules of
1998, and not by the principles for
determination thereof laid down in Pranay
Sethi. Once it is held that future prospects
are to be determined in accordance with
Rule 220-A(3), there is little doubt that the
deceased, under the said rule, is to be
placed in the age bracket of 40-50 years,
where, future prospects are to be added to
the extent of 30% of the salary. The
Tribunal has not awarded any future
prospects in working out the dependency
and calculating the compensation payable.

30. There is still one more issue
which the learned Counsel for the claimant
has much emphasized, and that is the award
of the compensation under the conventional
heads. There is little doubt that the
Tribunal, in awarding compensation under
the conventional heads, has manifestly
erred in law, inasmuch as in Pranay Sethi,
there are three distinct heads under which
compensation has to be awarded, so far as
the conventional heads go viz. Loss of
Estate, Loss of Consortium and Funeral
Expenses. I had occasion to consider the
question of award of compensation under
the conventional heads in Smt. Shanti
(supra), where it was held :

28.
Again,
so
far
as
the
conventional heads are concerned, this
Court is of opinion that far less than what is
to be awarded for the loss of estate, loss of
consortium and funeral expenses has been
directed by the Tribunal. Moreover, loss of
consortium is not confined to the widow
alone, but the parents too are entitled to be
compensated
for
the
loss
of
filial
consortium. The two minor children are
entitled to compensation on account of loss
of parental consortium. In this regard, the
holding of the Constitution Bench in
Pranay Sethi is again of much relevance,
where it is observed:
756 INDIAN LAW REPORTS ALLAHABAD SERIES

"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
Rs. 15,000
incurred before death
supported
by
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 inRajesh [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 fromRajesh
[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. ThoughRajesh
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 :
(2013) 4 SCC (Civ) 179 : (2013) 3 SCC
10 All. Smt. Ganpat Devi Vs. Istiyaq Ahmad & Anr.
757
(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."

29. The principles governing
award of compensation under conventional
heads, particularly with regard to award for
loss of consortium, have been laid down by
the Supreme Court in Magma General
Insurance Company Ltd. v. Nanu Ram
alias Chuhru Ram and others, (2018) 18
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
758 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

22. Consortium is a special prism
reflecting changing norms about the status
and worth of actual relationships.