# Smt. Heema Gill @ Hema Gill & Anr v. Ashish Kumar & Ors

- **Citation:** (2020) 1 ILRA 915
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-28
- **Case number:** FAFO No. 4130 of 2017
- **Bench:** Bala Krishna Narayana, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-heema-gill-hema-gill-anr-v-ashish-kumar-ors-45298
- **Pages:** 5

## Headnote

Act,
1988
-
Compensation - Calculation of loss of
dependency - Tribunal erred in taking into
consideration the deceased's income from
the agricultural property despite of his
noticing that the deceased was earning
from business or profession - While
calculating the loss of dependency, the
income from business or profession ought
to have been made the basis. (Para 10)

B. Motor Accident Act, 1988 - Compensation
- Future Prospect - Its relevance while
determining the income of deceased -
Addition of 25% of the established income
should be made where the deceased is aged
between 40 to 50 years - Held, Tribunal
failed to award any amount towards the
future prospect, though the deceased was
aged about 42 years. (Para 10)
916 INDIAN LAW REPORTS ALLAHABAD SERIES
C.
Motor
Accident
Act,
1988
-
Compensation - Conventional heads viz.
loss of estate, loss of consortium and
funeral expenses - It should be Rs.
15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively as per the guidelines of Apex
Court in Pranay Sethi's case - Held,
Amount awarded by the Tribunal under
the conventional heads are too meager
and
not
in
consonance
with
the
guidelines. (Para 10)

First Appeal From Order partly allowed.
(E-1)

List of cases cited :-

## Text

1 All. Smt. Heema Gill @ Hema Gill & Anr. Vs. Ashish Kumar & Ors.
915
submitted. It has been also rightly
concluded by the learned Commissioner
that no evidence was given by the
Insurance Company and even a surveyor
was not deputed to bring facts as alleged
by the Insurance Company.

21. The further submission is that the
claim petition was filed for Rupees five
lacs and the learned Commissioner has
awarded Rs. 519154/- with 8%interest and
as such the impugned judgement suffers
from illegality as it goes beyond what was
claimed by the claimants. The award
amount has been calculated on the basis of
legally permissible yardsticks and what is
expected
is
that
the
amount
of
compensation
should
be
just
and
reasonable. In Municipal Corporation of
Greater Bombay v Kisan Gangaram
Hire, (2009) 16 SCC 259, compensation
claim for Rs. 75000/- was filed but the
Tribunal awarded Rs 105000/- finding the
same to be just and the same was upheld.
As such, there is no illegality in it.

22. On the basis of above discussion,
I find that the learned Commissioner has
given finding on the basis of evidence that
at the time of accident, the deceased was
performing his duties and was in the
course of his employment. He was
employed on the vehicle as driver on
payment of 6000/- rupees monthly wages.
The learned Commissioner has rightly
calculated the compensation after applying
multiplier and making due deduction
against personal expenses. The issues
raised as substantial question of law relate
to facts and they have been duly
considered disposed in the impugned
judgement on the basis of facts evidence
and after applying correct law. there is no
perversity or illegality in the impugned
judgement and award nor any substantial
question of law is involved in this appeal.
The appeal lacks merit and is liable to be
dismissed.

23. Accordingly, the first appeal
from order is dismissed.
----------
(2020)1ILR 915

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

FAFO No. 4130 of 2017

Smt. Heema Gill @ Hema Gill & Anr.
 ...Appellants
Versus
Ashish Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri Devendra Gupta

Counsel for the Respondents:
Sri Pawan Kumar Singh

A.
Motor
Accident
Act,
1988
-
Compensation - Calculation of loss of
dependency - Tribunal erred in taking into
consideration the deceased's income from
the agricultural property despite of his
noticing that the deceased was earning
from business or profession - While
calculating the loss of dependency, the
income from business or profession ought
to have been made the basis. (Para 10)

B. Motor Accident Act, 1988 - Compensation
- Future Prospect - Its relevance while
determining the income of deceased -
Addition of 25% of the established income
should be made where the deceased is aged
between 40 to 50 years - Held, Tribunal
failed to award any amount towards the
future prospect, though the deceased was
aged about 42 years. (Para 10)
916 INDIAN LAW REPORTS ALLAHABAD SERIES
C.
Motor
Accident
Act,
1988
-
Compensation - Conventional heads viz.
loss of estate, loss of consortium and
funeral expenses - It should be Rs.
15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively as per the guidelines of Apex
Court in Pranay Sethi's case - Held,
Amount awarded by the Tribunal under
the conventional heads are too meager
and
not
in
consonance
with
the
guidelines. (Para 10)

First Appeal From Order partly allowed.
(E-1)

List of cases cited :-

1. National Insurance Company Limited Versus
Pranay Sethi and Others reported in 2017 (4)
T.A.C. 637 (S.C.)

(Delivered by Hon'ble Bala Krishna
Narayana, J. & Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard learned counsel for the
claimants-appellants and Sri Pawan Kumar
Singh, learned counsel for the respondent
no. 4.

2. None has appeared on behalf of
the defendants-respondent nos. 1 to 3
despite service.

3. By means of this first appeal from
order, the claimants-appellants, Smt. Heema
Gill @ Hema Gill and her son-Aadi Gill are
seeking
enhancement
of
amount
of
compensation awarded by M.A.C.T./Addl.
District Judge, Court No. 8, Saharanpur in
M.A.C.P. No. 244 of 2015 (Smt. Heema Gill
@ Hema Gill and Another Vs. Ashish Kumar
and 3 others) for the death of one Vikram Gill
@ Vikram Gill husband of claimant-appellant
no. 1 and father of claimant-appellant no. 2.

4. The facts of the case are that on
29.6.2015 at about 6 A.M. while deceasedVikram Gill who was aged about 42 years
was going on his Scooter (Activa) bearing
registration no. U.P. 11P-5256, his Activa
was hit from behind by a Truck Container
bearing
registration
no.
R
58-3886
(hereinafter referred to as the "offending
vehicle") which was being driven rashly
and negligently by it's driver near P.S.
Kutubsher, District Saharanpur causing
fatal injuries to the deceased who died
during treatment in Government Hospital
Saharanpur on the same day.

5. The written report of the incident
was lodged at P.S. Kutubsher on the basis
of which case crime no. 225 of 2015,
under Sections 279 and 304A IPC was
registered. The offending vehicle was
seized by the police and the deceased's
body was sent to postmortem. The
claimants-appellants who are the heirs of
the deceased filed M.A.C.P. No. 244 of
2015
before
M.A.C.T./Addl.
District
Judge, Court No. 8, Saharanpur claiming a
sum of Rs. 84,70,000/- as compensation
and
Rs.
50,000/-
towards
interim
compensation for the death of Vikram Gill
as a result of the injuries sustained by him
in an accident on 29.6.2015 due to rash
and negligent driving of the driver of the
offending vehicle.

6. The claimants-appellants' claim
was contested by the respondent nos. 1 to
3 denying the allegations made in the
claim petition. The respondent no. 4,
Magma H.D.I. G.I.C. Limited also filed a
written statement under Rule 24B of
Chapter IV of The Patents Rules, 2003
denying the allegations made in the claim
petition and in the additional pleas,
respondent no. 4 stated that the driver of
the Truck Container did not possess a
valid driving license on the date of
occurrence and the other documents
1 All. Smt. Heema Gill @ Hema Gill & Anr. Vs. Ashish Kumar & Ors.
917
pertaining
to
the
vehicle
namely
registration fitness certificate permit and
insurance policy were neither valid nor
effective at the time of the incident. The
vehicle was not being driven as per the
terms and conditions of the insurance
policy. The parties also adduced oral as
well as documentary evidence in support
of their respective claims before the
tribunal to which we shall refer as and
when the context so requires.

7. The M.A.C.T after considering the
submissions advanced before him by the
learned counsel for the parties and
scrutinizing
the
evidence
on
record
allowed the claim petition in part and
awarded a sum of Rs. 6,82,000/- as
compensation to the claimants-appellants.
The tribunal held that the deceased at the
time of his death was aged about 42 years
and
his
personal
income
was
Rs.
2,16,000/- and after deducting 1/3rd
amount
from
his
personal
income
amounting to Rs. 72,000/- which the
deceased would have spent towards his
living and personal expenses, he would
have spent Rs. 48,000/- per year on his
family. By applying the multiplier of 14,
the
tribunal
calculated
the
loss
of
dependency at Rs. 6,72,000/- and further
awarded sums of Rs. 2500/-, 5000/- and
2500/- respectively under the conventional
heads of funeral expenses, loss of
consortium and loss of estate. Notice may
be taken to the fact that none of the
defendant-respondent have preferred any
appeal against the impugned judgment and
award. In fact none has appeared before us
on behalf of the respondent nos. 1 to 3
despite service.

8. Learned counsel for the appellants
has challenged the impugned judgment
and award on the following grounds :

(i) The tribunal committed a
patent error of law in calculating the loss
of dependency by taking into account the
agricultural income of the deceased
instead of his income of Rs. 1,20,000/- per
year from the business or professional
income.

(ii) The tribunal has failed to
award any amount towards the future
prospective.

(iii) The amount awarded under
the conventional heads is too meager and
not in consonance with the directions
given
by
the
Apex
Court
in
the
Constitutional Bench' decision referred in
the case of National Insurance Company
Limited Versus Pranay Sethi and Others
reported in 2017 (4) T.A.C. 637 (S.C.).

(iv)
The
interest
has
been
awarded erroneously at the rate of 7% in
place of 9%.

9. Sri Pawan Kumar Singh, learned
counsel appearing for the respondent no. 4
has made submissions in support of the
impugned judgment and award and further
submitted that Rule 220A of the Uttar
Pradesh Motor Vehicle Rules 1998 clearly
provides that the rate of interest shall not
exceed 7% and hence the tribunal did not
commit any illegality in awarding interest
at the rate of 7%.

10. After having heard the learned
counsel for the parties present and perused
the impugned judgment and award as well
as the law reports cited before us by the
learned counsel for the parties, we find
that there is force in the submission made
by the learned counsel for the appellants
qua ground nos. 1, 2 and 3.

(i) Coming to the first ground of
challenge, the tribunal while calculating
the loss of dependency erred in taking into
918 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration the deceased's income from
the agricultural property despite of his
noticing that the deceased was earning Rs.
1,20,000/- per annum from business or
profession.
In
our
opinion
while
calculating the loss of dependency, the
income from business or profession ought
to have been made the basis. Thus, we
hold that the deceased was earning Rs.
1,20,000/- per annum and not Rs. 72,000/-
as held by the tribunal.

(ii) Coming to the second ground
of challenge, we find that although Apex
Court in the case of National Insurance
(supra) has held that while determining
the income, an addition of 25% of the
established income should be made where
the deceased is aged between 40 to 50
years but the tribunal had failed to award
any amount towards the future prospect. In
this case the deceased at the time of his
death was aged about 42 years and was
self-employed and earning Rs. 1,20,000/-
per annum from business or profession.
We therefore, add 25% of the established
income of the deceased towards future
prospect and hold that the annual income
of the deceased was Rs. 1,50,000/- per
annum (25% of Rs. 1,20,000/-). After
deducting 1/3rd amount towards the living
and personal expenses of the deceased, he
would have contributed Rs. 1,00,000/- to
his family.

(iii) Coming to the third ground
of challenge, we find that there is merit in
the said ground also. In sub-paragraph
(viii) of paragraph 61 of the judgment
rendered by the Apex Court in the case of
National Insurance (supra) has held 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. Thus, in our opinion, the
amount awarded by the tribunal under the
conventional heads are too meager and not
in consonance with the guildelines laid
down by the Apex Court in this regard in
National
Insurance
(supra).
We
accordingly awarded Rs. 15,000/-, Rs.
40,000/- and Rs. 15,000/- respectively
under the conventional heads namely, loss
of estate, loss of consortium and funeral
expenses.

(iv) The last ground at which the
learned counsel for the appellants has
challenged the impugned judgment and
award is that tribunal ought to have
awarded interest at the rate of 9% per
annum on the awarded amount of
compensation, we do not find any merit
therein in view of Rule 220A of the Uttar
Pradesh Motor Vehicle Rules 1998.

11. We accordingly proceed to
recalculate the compensation in the light of
the aforesaid findings. As noted above, the
deceased was earning Rs. 1,20,000/- p.a.
less tax. By adding 25% towards future
prospects as the deceased was between the
age of 40 to 50 years, the deemed annual
income of the deceased would be Rs.
1,50,000/- p.a. (1,20,000/- + 25% of Rs.
1,20,000/-). After deducting 1/3rd amount
from his annual income i.e. 1,50,000/-
towards the living and personal expenses
of the deceased, his contribution to the
family is determined as Rs. 1,00,000/- p.a.
By applying the multiplier of 14, the total
loss of dependency is assessed at Rs.
14,00,000/-. We further award a sum of
Rs. 15,000/- towards funeral expenses, Rs.
40,000/- under the head of loss of
consortium and Rs. 15,000/- towards loss
of estate. We accordingly increase the
compensation awarded to the claimantsappellants by the Tribunal from Rs.
6,82,000/-
to
Rs.
14,70,000/-.
The
claimants-appellants
shall
further
be
entitled to interest @ 7% p.a. on the
1 All. Aarav (Minor) & Anr. Vs. State of U.P. & Ors.
919
enhanced amount of compensation from
the date of filing of the claim petition till
the actual payment is made.

12. The appeal is allowed in part.

13. The impugned judgement and
award stand modified to the extent
indicated hereinabove.

14. The parties shall bear their
respective costs.
----------
(2020)1ILR 919

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2019

BEFORE
THE HON'BLE VIVEK KUMAR SINGH, J.

Habeas Corpus Writ Petition No. 917 of 2019

Aarav (Minor) & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satyendra Narayan Singh, Sri Ashutosh
Pandey

Counsel for the Respondents:
A.G.A., Sri Ishwar Chandra Tyagi, Sri
Anmol Kumar Dubey, Sri Nirvikar Gupta

A. Constitution of India - Article 226 -
Writ of Habeas Corpus - Alternative
Remedy - Habeas corpus is a prerogative
process for securing the liberty of the
subject by affording an effective means
of immediate release from an illegal or
improper
detention
-
It
is
an
extraordinary
remedy
and
is
issued
where in
the
circumstances
of
the
particular case, ordinary remedy provided
by the law is either not available or is
ineffective; otherwise a writ will not be
issued. (Para 10)
B. Constitution of India - Article 226 -
Writ of Habeas Corpus - Grant -Detention
of minor - Writ also extends its influence
to restore the custody of a minor to his
guardian when wrongfully deprived of it -
In child custody matters, the power of
the High Court in granting the writ is
qualified
only
in
cases
where
the
detention of a minor by a person who is
not entitled to his legal custody - The
detention of a minor by a person who is
not entitled to his legal custody is treated
as equivalent to illegal detention for the
purpose
of
granting
writ,
directing
custody of the minor child. (Para 9)

C. Writ of Habeas Corpus - Guardians and
Wards Act - Jurisdiction - Difference -
There are significant differences between
the enquiry under the Guardians and
Wards Act and the exercise of powers by
a writ court which is of summary in
nature - What is important is the welfare
of the child - In the writ court, rights are
determined only on the basis of affidavits
- Where the court is of the view that a
detailed enquiry is required, the court
may decline to exercise the extraordinary
jurisdiction and direct the parties to
approach the civil court - It is only in
exceptional cases, the rights of the
parties to the custody of the minor will be
determined in exercise of extraordinary
jurisdiction on a petition for habeas
corpus. (Para 11)

Habeas Corpus Writ Petition dismissed.
(E-1)

List of cases cited :-

1. Tejaswini Gaud and Ors. Vs. Shekhar
Jagdish Prasad Tewari and others; (2019) 7
Supreme Court Cases 42

(Delivered by Hon'ble Vivek Kumar
Singh, J.)

1. Heard Sri Satyendra Narayn Singh
and Sri Ashutosh Pandey, learned counsel
for the petitioners and Sri Ishwar Chandra