# Smt. Hasina Begum & Ors v. United India Insurance Co. Ltd. Bareilly & Anr

- **Citation:** (2023) 7 ILRA 107
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-01
- **Case number:** First Appeal From Order No. 1011 of 2000
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-hasina-begum-ors-v-united-india-insurance-co-ltd-bareilly-anr-50495
- **Pages:** 11

## Headnote

A. Civil Law-Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation- The deceased left behind
five
dependents-
claimants
sought
compensation in the sum of Rs.4,00,000/-
together
with
18%
annual
interestdeceased was aged 31 years and would
work on the jeep as an assistant and a
partner to the owner-The two adults were
his widow and the mother, and the three
minors, his children- Going by Rule 220-A
(2)(iii) of Rules, 1998 reckoning the minor
dependents as half a unit, the total
number of dependents would be three and
a
half-It
would
be
rounded
off
or
rationalized to 'four'-According to the
holding in Sarla Verma (for a married man,
leaving behind dependents in the bracket
of 4-6, a deduction of one-fourth has to be
directed towards personal and living
expenses of the deceased-The Tribunal
has directed a quantified deduction of
Rs.800/-, that is about two-fifth of the
deceased's income, determined by the
Tribunal, that is to say, Rs.2000/-. This
Court, therefore, holds that the Tribunal
has
ordered
an
excessive
deduction
towards personal expenses, which should
be substituted by a deduction of onefourth- the appropriate multiplier to be
adopted is '16'-Tribunal erred in applying
the multiplier of '15'-Annual income of the
deceased is considered to be Rs. 36,000/-
50% added towards future prospects as
per Rules 220-A(3) of 1998 and applied
Multiplier 16-Hence, total compensation
granted Rs. 878000/ @ 7%. (Para 1 to 47)
B. (I) 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).]

(II). 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".

(III). Filial consortium is the right of the
parents to compensation in the case of
an accidental death of a child. An
accident leading to the death of a child
causes great shock and agony to the
parents and family of the deceased. The
greatest agony for a parent is to lose
their child during their lifetime. Children
are valued for their love, affection,
companionship and their role in the
family unit. (Para 27)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

7 All. Smt. Hasina Begum & Ors. Vs. United India Insurance Co. Ltd. Bareilly & Anr.
107
(2023) 7 ILRA 107
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2023

BEFORE

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

First Appeal From Order No. 1011 of 2000

Smt. Hasina Begum & Ors. ...Appellants
Versus
United India Insurance Co. Ltd. Bareilly &
Anr. ...Respondents

Counsel for the Appellants:
Sri P.K. Agarwal, Sri Ram Singh

Counsel for the Respondents:

A. Civil Law-Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation- The deceased left behind
five
dependents-
claimants
sought
compensation in the sum of Rs.4,00,000/-
together
with
18%
annual
interestdeceased was aged 31 years and would
work on the jeep as an assistant and a
partner to the owner-The two adults were
his widow and the mother, and the three
minors, his children- Going by Rule 220-A
(2)(iii) of Rules, 1998 reckoning the minor
dependents as half a unit, the total
number of dependents would be three and
a
half-It
would
be
rounded
off
or
rationalized to 'four'-According to the
holding in Sarla Verma (for a married man,
leaving behind dependents in the bracket
of 4-6, a deduction of one-fourth has to be
directed towards personal and living
expenses of the deceased-The Tribunal
has directed a quantified deduction of
Rs.800/-, that is about two-fifth of the
deceased's income, determined by the
Tribunal, that is to say, Rs.2000/-. This
Court, therefore, holds that the Tribunal
has
ordered
an
excessive
deduction
towards personal expenses, which should
be substituted by a deduction of onefourth- the appropriate multiplier to be
adopted is '16'-Tribunal erred in applying
the multiplier of '15'-Annual income of the
deceased is considered to be Rs. 36,000/-
50% added towards future prospects as
per Rules 220-A(3) of 1998 and applied
Multiplier 16-Hence, total compensation
granted Rs. 878000/ @ 7%. (Para 1 to 47)
B. (I) 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).]

(II). 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".

(III). Filial consortium is the right of the
parents to compensation in the case of
an accidental death of a child. An
accident leading to the death of a child
causes great shock and agony to the
parents and family of the deceased. The
greatest agony for a parent is to lose
their child during their lifetime. Children
are valued for their love, affection,
companionship and their role in the
family unit. (Para 27)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. M.R. Krishna Murthi Vs New India Assur. Co.
Ltd & ors. (2020) 15 SCC 493

2. Gopalpuri Jai Prakash & ors. Vs The Managing
Dir, APSRTC & ors., MACMA. No. 694 of 2011

3. Meena Pawaia & ors. Vs Ashraf Ali & ors.
(2021) SCC OnLine SC 1083

4. Gyan Chand Jain & ors. Vs Permanand & ors.
(2003) 1 TAC 490

5. Sarla Verma(Smt.) & ors. Vs DTC (2009) 6
SCC 121
108 INDIAN LAW REPORTS ALLAHABAD SERIES
6. `Magma General Ins. Co. Ltd. Vs Nanu Ram
@ Chuhru Ram & ors. (2018) 18 SCC 130

7. National Ins. Co. Vs Pranay Sethi & ors.
(2017) 16 SCC 680

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

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

10. P.O. Meera & anr..Vs Ananda P. Naik & ors.
(2022) SCC OnLine Ker 546

11. Branch Manager, Future General India Ins.
Co. Ltd. Bengaluru Vs Varsha S.L. (2019) SCC
OnLine Kar 3498

12. Shashikala & ors. Vs Ganga-lakshmamma &
anr. (2015) 9 SCC 150

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

This is a claimants' appeal arising out
of a judgment and award dated 26.04.2000
passed by the Motor Accident Claims
Tribunal, Bareilly, seeking enhancement of
compensation.

2. Motor Accident Claims Petition
No.305 of 1999 was instituted before the
Motor Accident Claims Tribunal/ the
District Judge, Bareilly on 21.04.1999 on
behalf of the five dependents of the late
Shakeel Ahmad - two adults and three
minors - claiming compensation for his
death in a motor accident from the owner
and the insurers of Truck No. UP-22-6933.
According to the claimants, on 2nd of
April, 1999, Shakeel Ahmad was on board
Jeep No. UP-25-5646. He was deboarding
passengers on one side of the road, at about
half past five in the evening, parking the
jeep there. In the meantime, Truck No. UP22-6933, driven negligently and at a high
speed, came on from the Kicha end and hit
Shakeel Ahmad. He was grievously injured.
Shakeel was conveyed to the Primary
Health Centre, Baheri for medical aid and
thence to the District Hospital, Bareilly for
treatment. During treatment, he succumbed
to the injuries.

3. According to the five claimantappellants (for short, 'the claimants'),
Shakeel Ahmad was a healthy and hard
working young man. His sudden death
brought ruin to the family. The claimants
sought compensation in the sum of
Rs.4,00,000/- together with 18% annual
interest. It is the claimants' case that
Shakeel Ahmad was aged 30 years and
would work on the jeep as an assistant and
a partner to the owner. The offending truck
was
insured
with
the
United
India
Insurance Co. Ltd. through its Divisional
Manager, Rampur Garden, Bareilly (for
short, 'the Insurers') vide Cover Note No.
706310,
valid
from
08.01.1999
to
07.01.2000. The Insurers were impleaded
as opposite party No.1 to the claim petition
and respondent No.1 to this appeal. The
offending truck was owned by one Khalil
Ahmad, who was arrayed as opposite party
No.2 to the claim petition and respondent
No.2 to this appeal. He is the registered
owner of the truck and shall hereinafter be
called 'the owner'.

4. The owner filed a written
statement, where he has acknowledged the
fact that he is the registered owner of the
offending truck. He has admitted the fact
that
on
02.04.1999,
the
truck
was
proceedings from Kicha to Bareilly. It was
driven at a regulated speed, with due care
by its driver. The jeep driver was operating
the vehicle negligently. The offending truck
was insured with the Insurers under a cover
note valid from 08.01.1999 to 07.01.2000.
The driver of the offending truck was
Rajesh Kumar, who held a driving licence
7 All. Smt. Hasina Begum & Ors. Vs. United India Insurance Co. Ltd. Bareilly & Anr.
109
valid upto 16.04.2000. He had not been
negligent in any way in driving the truck. It
was urged that since the offending truck
was insured, if any liability be found for the
owner, it has to be made good by the
Insurers.

5. The Insurers filed a separate
written statement and denied the factum of
accident. They have denied the deceased's
age, avocation and income. It has also been
denied that the claimants were dependent
upon the deceased. It is also pleaded that all
the legal representatives of the deceased
have not been made parties and, therefore,
the claim petition is bad for non-joinder. A
plea has further been raised to the effect
that the driver of the offending truck was
not made a party, again leading to nonjoinder. The accident did not happen on
account of negligence of the driver of the
offending truck and, therefore, the Insurers
are not liable. The owner was operating the
offending truck without registration, a
fitness certificate and contrary to the terms
of the insurance policy. The driver of the
truck did not have a valid driving licence.
The claimants have come up with an
inflated claim. According to the Insurers,
the claim petition deserved to be rejected.

6. On the pleadings of parties, the
Tribunal
struck
the
following
issues
(translated into English from Hindi):

"1. Whether on 02.04.1999, at
about 5:30 in the evening, at the Baheri
Bypass, Truck No. UP-22-6933, driven
negligently, recklessly and at a high speed
by its driver, proceeding from the Kicha
end of the road, hit Shakeel, on account of
which he died?

2. Whether at the time of the
accident, the driver of the vehicle in
question did not have a valid driving
licence?

3. Whether at the time of the
accident, the vehicle in question was
validly insured with opposite party No.1,
United India Insurance Co. Ltd.?

4. Whether the claim petition is
bad for non-joinder of necessary party, on
account of non-impleadment of the driver
of Vehicle No. UP-22-6933?

5. Whether the claimants are
entitled to compensation? If yes, how much
and from which opposite party?"

7. The claimants examined in support
of the claim petition PW-1 Hasima Begum,
Mohd. Islam PW-2 and Salim PW-3. The
claimants
produced
in
documentary
evidence vide a list of document, bearing
paper No. 17-Ga, six documents, which
include a photostat copy of the cover note
of the offending truck, a photostat copy of
the truck driver's driving licence, a
photostat copy of the tax paid for the
offending truck and a fitness certificate of
the truck. In addition, through another list,
bearing paper No. 24-Ga, nine other
documents were filed, that include a
certified copy of the FIR, a certified copy
of the charge sheet and a certified copy of
the postmortem report. The Insurers filed a
true copy of the insurance policy, but did
not lead any oral evidence.

8. Issue No.1 was answered for the
claimants, holding that on the date and time
of the accident, the deceased died on
account of rash and negligent driving by
the driver of the offending truck. Issue
No.2 was answered against the Insurers,
holding that on the date of the accident,
Rajesh Kumar, the driver of the offending
truck had a valid driving licence. Likewise,
Issue No.3 was decided against the
Insurers, holding that on the date of the
110 INDIAN LAW REPORTS ALLAHABAD SERIES
accident, the offending truck was insured
with the Insurers. Issue No.4 was also
decided in favour of the claimants and
against the Insurers, holding that it was not
bad for non-joinder of a necessary party on
account
of
non-impleadment
of
the
offending truck's driver.

9. While answering Issue No.5, the
Tribunal held the deceased's income to be a
sum of Rs.2000/- per month, and deducting
a sum of Rs.800/- towards personal and
living expenses, a monthly dependency of
Rs.1200/- was determined. The Tribunal
applied a multiplier of '15' to find a total
substantive dependency of Rs.2,16,000/-. A
consolidated sum of Rs.10,000/- was
awarded to the widow for the loss of
consortium, funeral expenses and loss of
estate. Accordingly, a compensation in the
sum of Rs.2,26,000/- was awarded to the
claimants
with
an
apportionment
of
Rs.1,10,000/- to the widow, Rs.26,000/- to
the deceased's mother and Rs.30,000/- each
to the three minor children. The said sum of
money was ordered to carry interest @
10% per annum from the date of institution
of the claim petition until realization. The
compensation awarded to the minors was
directed to be placed in a fixed deposit with
a Nationalized Bank, to be held there until
the minors attained majority.

10. Heard Mr. Ram Singh, learned
Counsel for the claimants. No one has
appeared on behalf of the owner or the
Insurers, though service was held sufficient
vide order dated 18.10.2022.

11. The only issue that has been
canvassed in this appeal before this Court is
the inadequacy of compensation awarded.

12. The Tribunal has reasoned that the
deceased was a helper on the jeep. He was
a partner too, in the enterprise of ferrying
passengers for hire on the jeep with the
registered
owner.
According
to
the
claimants, he would earn Rs.3500/- per
month. The Tribunal has looked into the
testimony of PW-1, the deceased's wife,
who has said that her husband would garner
an income of Rs.3500/- by operating the
jeep.

13. The Tribunal has also looked into
the evidence of PW-2, Mohd. Islam, the
registered owner of the jeep. Mohd. Islam
has said in his testimony that the deceased
would look after the jeep and was a partner
by verbal agreement. After deducting
expenses
involved
in
the
vehicle's
operation, according to the registered
owner, the deceased would share profits
with him equally. The deceased would save
for himself a sum of Rs.4000-4500/- per
month. In the cross-examination, the
Tribunal has noted that Mohd. Islam, PW-2
has said that in the month of March, 1999,
for the last time, Shakeel had paid him a
sum of Rs.3500/-. The Tribunal has also
noted that this witness has said that he had
a register recording the monthly income,
but did not produce it in evidence.

14. The Tribunal has concluded that
all this evidence proves that the deceased
would work on Jeep No. UP-25-5646 and
on the date of accident too, he was
deboarding passengers. It has also been
held that according to the autopsy report,
the deceased's age was 32 years. In the
absence of any documentary evidence, the
Tribunal has opined that the deceased's
income ought to be determined at a sum of
Rs.2000/- per month, out of which Rs.800/-
he would spend on himself. As already
noted about the reckoning of compensation,
the Tribunal ultimately held the claimants
entitled to a sum of Rs.2,26,000/-.
7 All. Smt. Hasina Begum & Ors. Vs. United India Insurance Co. Ltd. Bareilly & Anr.
111

15. Upon hearing learned Counsel for
the claimants and perusing the record, this
Court finds that there is an unchallenged
assertion about the deceased's income being
Rs.3500/-. The said income is half of the
profits earned by operating the jeep, of
which Mohd. Islam was the owner. Mohd.
Islam has said that the deceased would earn
Rs.4000-4500/- per month. The widow has
said that he would earn Rs.3500/-.
Therefore, for the Tribunal to say that the
deceased would earn Rs.2000/- per month
is no more than an ipse dixit of the Judge in
the Tribunal.

16. The deceased's wife, in the crossexamination done at the instance of the
Insurers, has stood by the position that her
husband would earn a sum of Rs.3500/- per
month, which she has described as salary.
The witness being apparently not an
educated woman, she would not understand
that the deceased was sharing profits with
the registered owner earned out of the
operating jeep for hire, carrying passengers.
What is important is that in the crossexamination, there is nothing said to
discredit the assertion about the deceased's
income being Rs.3500/- per month. Mohd.
Islam, PW-2, in his testimony has pegged
the the deceased's monthly income at a
figure of Rs.4000-4500/-. In his crossexamination, he has come out with the fact
that in the month of March, 1999, the
deceased had paid him a sum of Rs.3500/-.
There being an equal sharing between the
registered owner of the jeep, PW-2 and the
deceased, the deceased too would have
earned the same sum of money, during the
month of March, 1999.

17. This Court is of opinion that in the
nature of the work that the deceased and
the registered owner of the ill-fated jeep did
together,
one
can
hardly
expect
maintenance of ledgers, books of account,
balance-sheets or tax returns. The Court
cannot turn away its face from the hard
reality
that
much
economic
activity,
particularly, in the days gone by, happened
outside the formal regime of recorded
transactions, but it does not mean that these
activities to earn ones livelihood were not
there.
Howsoever
illegal,
vehicles
registered as private ones, particularly
jeeps, have always dotted the highways, at
least in this State, to ferry passengers for
hire or reward. They have afforded means
of transport to some and to others an
occupation. We do not know whether the
ill-fated
jeep
was
registered
as
a
commercial vehicle or not. We assume it
was not. Even then, it cannot be said that
the jeep was not exploited for commercial
gain by ferrying passengers that yielded a
definitive income, both to the registered
owner and the deceased. Going by the
contemporary standards of the time at the
turn of the century, an unskilled labourer
would earn about Rs.100/- a day. That was
the figure accepted for an unskilled
labourer in the earlier years of the last
decade of the 20th century.

18. The deceased was not a casual
labourer, but a person engaged in providing
a service to passengers for hire or reward,
using a motor vehicle, sharing profits with
the registered owner. In the circumstances,
on the most conservative estimate, this
Court is of opinion that the deceased can
safely be credited with a monthly income
of Rs.3000/- per month at the time of his
demise in the fatal motor accident. We hold
accordingly.

19. It is on the foot of this monthly
income that this Court proceeds to
determine the claimants' dependency and
the compensation. A monthly income of
112 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.3000/- would work to an annual income
of Rs.36,000/-.

20. The deceased left behind five
dependents, about whom, there is no doubt
that they were his dependents. The two
adults were his widow and the mother, and
the three minors, his children. Going by
Rule 220-A (2)(iii) of the U.P. Motor
Vehicles Rules, 1998 (for short the 'Rules
of 1998'), reckoning the minor dependents
as half a unit, the total number of
dependents would be three and a half. It
would be rounded off or rationalized to
'four'. According to the holding in Sarla
Verma
(Smt)
v.
Delhi
Transport
Corporation and another, (2009) 6 SCC
121, for a married man, leaving behind
dependents in the bracket of 4-6, a
deduction of one-fourth has to be directed
towards personal and living expenses of the
deceased. The Tribunal has directed a
quantified deduction of Rs.800/-, that is
about two-fifth of the deceased's income,
determined by the Tribunal, that is to say,
Rs.2000/-. This Court, therefore, holds that
the Tribunal has ordered an excessive
deduction
towards
personal
expenses,
which should be substituted by a deduction
of one-fourth.

21. The Tribunal has applied a
multiplier of '15'. The deceased was held 32
years old. Going by the table in Paragraph
No.40 of the decision in Sarla Verma
(supra) for a victim in the age group of 3135 years, the appropriate multiplier to be
adopted is '16'. The Tribunal, therefore,
erred in applying the multiplier of '15'.

22. The next issue that has been raised
by the learned Counsel for the claimants is
the non-award of anything towards future
prospects. In view of the holding of the
Supreme Court in National Insurance
Company v. Pranay Sethi and others
(2017) 16 SCC 680, future prospects are to
be awarded in cases of victims of fatal
motor accidents, who are self-employed or
worked on a fixed salary too. The question
would certainly arise whether future
prospects, to which the claimants are
entitled, would be governed by the law laid
down in Pranay Sethi (supra) or Rule 220A(3) of the Rules of 1998. This issue is no
longer res integra in view of the holding in
New India Assurance Co. Ltd v. Urmila
Shukla and others, 2021 SCC OnLine SC
822, where it has been observed:

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

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

11. If an indicia is made available
in the form of a statutory instrument which
affords a favourable treatment, the decision
in Pranay 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 Sethicannot be
taken as maxima. In the absence of any
governing
principle
available
in
the
statutory regime, it was only in the form of
an indication. If a statutory instrument has
devised a formula which affords better or
greater benefit, such statutory instrument
must be allowed to operate unless the
7 All. Smt. Hasina Begum & Ors. Vs. United India Insurance Co. Ltd. Bareilly & Anr.
113
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."

23. There is no cavil, therefore, that
future prospects in the State of Uttar
Pradesh
have
to
be
quantified
in
accordance with Rule 220-A(3) of the
Rules of 1998, and not the principles in
Pranay Sethi.

24. The next issue which arises is
whether Rule 220-A(3) of the Rules of
1998, which came into force by virtue of
Notification
No.
777/XXX4-2011-4(3)-
2010 dated 26th September, 2011 i.e. The
Uttar Pradesh Motor Vehicles (Eleventh
Amendment) Rules, 2011, would apply
retrospectively to an
accident which
happened much before the amendment.
This issue fell for consideration of a
Division Bench of this Court in Sushil
Kumar and others v. M/s. Sampark
Lojastic Private Limited and others,
2017 (35) LCD 1311. In Sushil Kumar
(supra), it has been held:

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

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

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

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

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

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

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

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

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

25. According to the law laid down by
the Division Bench in Sushil Kumar
(supra), which apparently binds this Court,
the award of future prospects is to be made
in accordance Rule 220-A(3) of Rules,
1998, notwithstanding the fact that accident
happened prior to the amendment. Here,
the deceased was aged less than 40 years
and going by Rule 220-A(3), there has to
be an addition of 50% to his income
towards future prospects.

26. The next question that arises for
consideration is the claimants' entitlement
under the conventional heads. In Pranay
Sethi, it has been held:

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

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

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

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

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

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

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
7 All. Smt. Hasina Begum & Ors. Vs. United India Insurance Co. Ltd. Bareilly & Anr.
115
SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 :
(2014)
1 SCC
(L&S)
149]
. The
justification for grant of consortium, as we
find from Rajesh [Rajesh v. Rajbir Singh,
(2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179
: (2013) 3 SCC (Cri) 817 : (2014) 1 SCC
(L&S) 149] , is founded on the observation
as we have reproduced hereinbefore.

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

52. As far as the conventional
heads are concerned, we find it difficult to
agree
with
the
view
expressed
in
Rajesh[Rajesh v. Rajbir Singh, (2013) 9
SCC 54 : (2013) 4 SCC (Civ) 179 : (2013)
3 SCC (Cri) 817 : (2014) 1 SCC (L&S)
149] . It has granted Rs 25,000 towards
funeral expenses, Rs 1,00,000 towards loss
of consortium and Rs 1,00,000 towards loss
of care and guidance for minor children.
The head relating to loss of care and minor
children does not exist. ThoughRajesh
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 :
(2013) 4 SCC (Civ) 179 : (2013) 3 SCC
(Cri) 817 : (2014) 1 SCC (L&S) 149] refers
to Santosh Devi [Santosh Devi v. National
Insurance Co. Ltd., (2012) 6 SCC 421 :
(2012) 3 SCC (Civ) 726 : (2012) 3 SCC
(Cri) 160 : (2012) 2 SCC (L&S) 167] , it
does not seem to follow the same. The
conventional
and
traditional
heads,
needless to say, cannot be determined on
percentage basis because that would not be
an
acceptable
criterion.
Unlike
determination of income, the said heads
have to be quantified. Any quantification
must have a reasonable foundation. There
can be no dispute over the fact that price
index, fall in bank interest, escalation of
rates in many a field have to be noticed.
The court cannot remain oblivious to the
same. There has been a thumb rule in this
aspect. Otherwise, there will be extreme
difficulty in determination of the same and
unless the thumb rule is applied, there will
be immense variation lacking any kind of
consistency as a consequence of which, the
orders passed by the tribunals and courts
are likely to be unguided. Therefore, we
think it seemly to fix reasonable sums. It
seems to us that reasonable figures on
conventional heads, namely, loss of estate,
loss of consortium and funeral expenses
should be Rs 15,000, Rs 40,000 and Rs
15,000 respectively. The principle of
revisiting the said heads is an acceptable
principle. But the revisit should not be factcentric or quantum-centric. We think that it
would be condign that the amount that we
have quantified should be enhanced on
percentage basis in every three years and
the enhancement should be at the rate of
10% in a span of three years. We are
disposed to hold so because that will bring
in consistency in respect of those heads."

(emphasis by Court)

27. What compensation for the loss of
consortium is to be awarded and to which
of the claimants, was the issue that was
considered by the Supreme Court in
Magma General Insurance Company
Ltd. v. Nanu Ram alias Chuhru Ram
and others, (2018) 18 SCC 130, where it
was 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,
116 INDIAN LAW REPORTS ALLAHABAD SERIES
comfort, guidance, solace and affection of
the deceased, which is a loss to his family.
With respect to a spouse, it would include
sexual relations with the deceased spouse :
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 :
(2013) 4 SCC (Civ) 179 : (2013) 3 SCC
(Cri) 817 : (2014) 1 SCC (L&S) 149]

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

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

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

(emphasis by Court)

28. The Tribunal had directed
compensation
payable
to
the
minor
claimants to be placed in a fixed deposit
with a nationalized bank until the minors
attained majority. The youngest of the
minors, who was two years at the time
when the claim petition was instituted,
would now be aged about 25 years. The
others would be older. Therefore, the
direction to invest any part of the
compensation, now payable in fixed
deposit, is not called for.

29. In view of the aforesaid
conclusion, the compensation payable to
the claimants in this appeal is revised and
would have to be determined in the
following manner:

(i) Monthly Income (of the deceased)
= 3000

(ii) Annual Income (of the deceased) =
3000x12 = 36000

(iii) Annual Income+Future Prospects

 (annual
income
x
50%)
=
36000+18000 = 54000

(iv) Annual Dependency = Annual
Income - one-fourth deduction towards
personal expenses of the deceased = 5400013500 = 40500

(v) Total Dependency = Annual
Dependency x Applied Multiplier

= 40500 x 16 = 648000

(vi) Claimant's entitlement towards

 conventional heads = Loss of Estate

+ Funeral Expenses + dependents'

Consortium =15000+15000+40000x5
= 230000

The total compensation would

 therefore, work out to a figure of

 Rs.648000+ Rs.230000 = 878000

30. In the result, this appeal is
allowed in part. The impugned award
passed by the Tribunal is modified and the
compensation
awarded
enhanced
to
Rs.8,78,000/-. The aforesaid sum of money
shall carry simple interest at the rate of 7%
per annum from the date of institution of
the claim petition, until realization. Any
sum of money already deposited with the
Tribunal by the Insurers, pursuant to the
impugned award, shall be adjusted against
it. The directions of the Tribunal for
apportionment amongst the claimants shall
remain intact, but it will no longer be
necessary to require the compensation to be
invested in any kind of a fixed deposit. It
7 All. National Insurance Co. Ltd., Civil Lines, Allahabad Vs. Sri Satya Narain Kesarwani & Ors. 117
shall be payable as per entitlement to each
of the claimants and/ or their legal
representatives in account in such manner
as the Tribunal directs.
----------
(2023) 7 ILRA 117
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2023

BEFORE

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

First Appeal From Order No. 1394 of 2006
With
Cross Appeal/Cross Objection No. 65668 of
2013

National Insurance Co. Ltd., Civil Lines,
Allahabad ...Appellant
Versus
Sri Satya Narain Kesarwani & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Komal Mehrotra

Counsel for the Respondents:
Sri Ram Singh, Sri Vinay Kumar Chaturvedi

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation-
fatal
accident-deceased
was crushed under the wheels of the
tanker and died on the spot-The claim
petition was instituted by the deceased's
father, claiming compensation for himself
and the deceased's mother, the two
dependents, who survived-the deceased
was 25 years old and engaged in the
business of selling rice- Annual income of
the deceased is considered to be Rs.
36,000/- 50% added towards future
prospects as per Rules 220-A(3) of 1998
and applied Multiplier 18-Hence, total
compensation granted Rs. 5,96,000/- @
7%.(Para 1 to 47)

B. Filial consortium is the right of the
parents to compensation in the case of an
accidental death of a child. An accident
leading to the death of a child causes
great shock and agony to the parents and
family of the deceased. The greatest
agony for a parent is to lose their child
during their lifetime. Children are valued
for their love, affection, companionship
and their role in the family unit.(Para 45)
The appeal is partly allowed. (E-6)

List of Cases cited:

1. Saroj Devi & ors. Vs Royal Sundaram Alliance
Ins. Co. Ltd. & anr. (2016) 2 TAC 281 All..

2. V. Mekala Vs M. Malathi & anr. (2014) 11 SCC
178

3. M.R. Krishna Murthi Vs New India Assur. Co.
Ltd & ors. (2020) 15 SCC 493

4. Gopalpuri Jai Prakash & ors. Vs The
Managing Dir, APSRTC & ors., MACMA. No.
694 of 2011

5. Meena Pawaia & ors. Vs Ashraf Ali & ors.
(2021) SCC OnLine SC 1083

6. Gyan Chand Jain & ors. Vs Permanand & ors.
(2003) 1 TAC 490

7. Sarla Verma(Smt.) & ors. Vs DTC (2009) 6
SCC 121

8. `Magma General Ins. Co. Ltd. Vs Nanu Ram
@ Chuhru Ram & ors. (2018) 18 SCC 130

9. National Ins. Co. Vs Pranay Sethi & ors.
(2017) 16 SCC 680

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

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

12. P.O. Meera & anr..Vs Ananda P. Naik & ors.
(2022) SCC OnLine Ker 546

13. Branch Manager, Future General India Ins.
Co. Ltd. Bengaluru Vs Varsha S.L. (2019) SCC
OnLine Kar 3498