# Smt. Maya Devi & Ors v. Sri Sunil Kumar & Anr

- **Citation:** (2020) 6 ILRA 18
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-05
- **Case number:** First Appeal From Order No. 3409 of 2010
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-maya-devi-ors-v-sri-sunil-kumar-anr-45778
- **Pages:** 11

## Headnote

Unless any evidence is led to the contrary, it may be
presumed that every family in India leads a
reasonably happy and respectable life. If a person
has met an accidental death and is survived by
dependents, and has no record of income, it would
be quite inhuman to presume that he had no income
and so his family was leading a beggars life. In the
absence of record of income, unless and until proved
to the contrary there has to be a presumption that
breadwinner of a family was earning sufficiently
enough for the survival of his family (Para 10)

Average income of a person to lead a reasonably
good and respected life depends upon the size of the
family and place where he lives. It will all depend
upon the social economic condition of the area where
he lives in. Broad classification could be urban, semi
urban and rural areas. (Para 12)

The basic requirement for ascertaining the minimum
wage in the unskilled sector is two meals a day and
medical expenses. (Para 19)

The dependents being the wife, two minor sons, a
minor daughters and the mother therefore, 1/5
deduction towards personal expenses will be valid.
Multiplier of 16 would be applicable for the decease
having died at the age of 33 years (Para 29, 31)

First Appeal from Order Allowed. (E-10)

List of cases cited:-

## Text

18 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)06ILR A18
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

First Appeal From Order No. 3409 of 2010

Smt. Maya Devi & Ors. ...Appellants
Versus
Sri Sunil Kumar & Anr. ...Respondents

Counsel for the Appellants:
Sri M.N. Siddiqui

Counsel for the Respondents:
Sri S.K. Mehrotra, Sri Archit Mehrotra, Sri
Baleshwar Chaturvedi

Quantum of compensation - Notional Income -
Unless any evidence is led to the contrary, it may be
presumed that every family in India leads a
reasonably happy and respectable life. If a person
has met an accidental death and is survived by
dependents, and has no record of income, it would
be quite inhuman to presume that he had no income
and so his family was leading a beggars life. In the
absence of record of income, unless and until proved
to the contrary there has to be a presumption that
breadwinner of a family was earning sufficiently
enough for the survival of his family (Para 10)

Average income of a person to lead a reasonably
good and respected life depends upon the size of the
family and place where he lives. It will all depend
upon the social economic condition of the area where
he lives in. Broad classification could be urban, semi
urban and rural areas. (Para 12)

The basic requirement for ascertaining the minimum
wage in the unskilled sector is two meals a day and
medical expenses. (Para 19)

The dependents being the wife, two minor sons, a
minor daughters and the mother therefore, 1/5
deduction towards personal expenses will be valid.
Multiplier of 16 would be applicable for the decease
having died at the age of 33 years (Para 29, 31)

First Appeal from Order Allowed. (E-10)

List of cases cited:-

1. Laxmi Devi Vs. Mohammad Tabbar and anr.
2008 (12) SCC 165 (followed)

2. Chameli Devi & ors Vs. Jivrail Mian & ors. Civil
Appeal No. 7004 of 2019

3. Union for Democratic Rights Vs. Union of
India AIR 1982 (SC) 1473

4. Sarla Verma & ors Vs. Delhi Transport Corp &
anr (2009) 6 SCC 121 (followed)

5.
Santosh
Devi
Vs.
National
Insurance
Company Limited (2012) 6 SCC 421

6. National Insurance Company Limited Vs
Pranay Sethi & others (2017) 16 SCC 680

(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Ajit Kumar, J.)

1. Heard Sri M.N. Siddiqui, learned
counsel for the appellants, Sri Archit
Mehrotra, Advocate holding brief of Sri
S.K. Mehrotra, learned counsel for opposite
party no. 2 and perused the record.

2. This first appeal from order is
directed against the award dated 19th
August, 2010 passed by Motor Accident
Claims Tribunal/Additional District Judge,
Court No. 2, Kanpur Nagar allowing the
compensation of the petitioners-claimant
raised vide claim petition no. 338 of 2008.

3. It has been argued on behalf of the
appellants
that
on
the
point
of
determination
of
compensation,
the
Tribunal has not correctly appreciated the
legal authorities on contemporary law
6 All. Smt. Maya Devi & Ors. Vs. Sri Sunil Kumar & Anr.
19
governing the calculation of compensation
in cases of motor accident claims.

4. Briefly stated facts of the case are
that the husband of appellant no. 1-late
Sarju Lal, who is survived by as many as
seven dependents (widow, mother and five
minor children) suffered the fatal accident
on 6th of February, 2008 while he was hit
by a tempo in the morning hours at around
9:30 a.m. Sarju Lal was immediately taken
to the hospital where he succumbed to the
injuries on 12th February, 2008. The claim
petition was preferred and as many as four
issues were framed. Regarding other three
issues, there is no issue between the parties
as the Insurance Company has not come up
to file any appeal against the award.
Regarding issue no. 4, the grievance of the
appellants is that the Tribunal has not
correctly appreciated the income of the
appellants and has wrongly fixed Rs.
6,000/- as an average income. He has
placed reliance upon several authorities in
this regard particularly (2015) 3 SCC 590,
Smt. Neeta w/o Kallappa Kadolkar & Ors.
vs. The Div. Manager, MSRTC, Kolhapr.

5. It has been further argued that the
deduction of personal expenses of the
appellants has also been wrongly calculated
as 1/3 whereas it should have been 1/5 as
there were five minor children and they can
be taken as 2 and 1/2 and the wife and
mother of the decease being major. It has
been further argued that the prospective
income has also not been assessed and no
compensation has been awarded to that
count and 6% of the interest is also not
sufficient enough as has been ordered by
the Tribunal.

6. Per contra, counsel appearing for
the Insurance Company has justified the
order impugned and submits that in the
facts of the case, the average income of the
deceased was correctly assessed. He
submits that no evidence has been led by
the claimant in respect of the income of the
deceased so as to come to a definite
conclusion on the question of future
prospective income. It has been argued by
learned counsel appearing for the Insurance
Company that the legal position has come
to be changed only later on and would not
be applied retrospectively on the accident is
of the year 2008. On the question of
interest, learned counsel appearing for
Insurance Company submits that the
insurance has been genuinely assigned as
6%.

7. Having heard learned counsel for the
parties and having perused the records, we find
that on the issue no. 4, the Court should have
taken pragmatic view in the light of the fact that
there were five minor children in the family.

8. Coming to the question of income of
the deceased, who was a self employed person
and was doing business of purchase and sale of
buffalo, the tribunal has applied the rule of Rs.
100/- per day as an income as was held in the
case of Laxmi Devi vs. Mohammad Tabbar
and anothers, 2008 (12) SCC 165. The Court
in the case of Laxmi Devi vide paragraph-4
upheld the order of the High Court where the
notional income of the deceased was assessed
as Rs. 100/- per day being an unskilled labourer
on the ground that it was held by the high court
to be a labour charge in those days and this is
how the monthly income was assessed to be Rs.
3,000/- and yearly income as Rs. 36,000/-.

9. However, later on in the case of
Chameli Devi & others vs. Jivrail Mian &
others decided by the Apex Court on 4th
September, 2019 in Civil Appeal No. 7004 of
2019, where the deceased was a carpenter the
notional income was assess as Rs. 200/- per
day. In the case of case Chameli Devi it is held
20 INDIAN LAW REPORTS ALLAHABAD SERIES
that keeping in view the fact that the accident
took place in 2001 and the deceased was a
carpenter, it would not be unjustified to assess
his income at Rs. 200/- per day. It is true that
carpenter may not get work every day, hence,
we assess the income at Rs. 5,000/-.

10. One, who meets a fatal accident
while on board a vehicle becomes entitled to
a third party claim. It is a statutory claim for
compensation to those who have suffered the
loss of their bread winner. In such a situation
there
arises
question
of
quantum
of
compensation to be paid. All the factors that
contribute to the quantum of compensation
are basically borne on income of the
deceased. While a professional and employed
person may give details of earning but those
who are self employed may not be having
this kind of statistics in black and white. In
India still people do not prefer banking
system and both in urban, semi urban and
rural areas life goes on with daily cash
transactions. Earning in cash, expenditure
met and, if money, in case saved is kept for
the other day and this is how saved money
keeps adding everyday to meet sudden
requirement. Ladies are often found keeping
money in cash. In recent past when
government demonetized currency note of
Rs. 1000 and also of Rs. 500, we have seen
how even in rural and semi urban areas
people lined up before the bank to exchange
their currency notes. So all this leads to one
conclusion that in majority, family is survived
on daily earning. Now, if a deceased did not
have the record of his earning, it does not
mean that he had no earning. A deceased
survived by six members in a family will lead
to inevitable presumption that he being the
sole bread winner, was earning sufficiently
for the survival of his dependents in the
family. There is always a presumption, a
valid enough, that one leads a reasonably
respected life unless of course, he has
criminal antecedents in cases of theft,
snatching or dacoity etc. Every citizen enjoys
a self esteem and so presumption has to be
that he lives a respectable life though such a
presumption is rebuttable. So unless any
evidence is led to the contrary, it may be
presumed that every family in India leads a
reasonably happy and respectable life. If a
person has met an accidental death and is
survived by dependents, and has no record of
income, it would be quite inhuman to
presume that he had no income and so his
family was leading a beggars life. It is a slur
upon fellow citizen and no civilized society
would approve it. So in our ultimate
conclusion that we arrive at, is that even in
the absence of record of income, unless and
until proved to the contrary there has to be a
presumption that breadwinner of a family
was earning sufficiently enough for the
survival of his family.

11. A family has lost its bread winner
and the resultant trauma it faces cannot be
visualized
by
others.
It
may
have
catastrophic impact on future prospects of
minor children. They may not get proper
education, medical care in the absence of
adequate financial resources and they may
suffer from malnutrition more especially in
cases where bread winner was self
employed. Thus a child, who could have
become a well established person of good
repute after attaining good education, may
not attain even status of a person, who
could manage even two meals a day and
worse is a case when a self employed is
survived by five minor children, as the case
in hand is.

12. Now the question would be what
should be an average income of a person to
lead a reasonably good and respected life.
In our considered opinion it should depend
upon the size of the family and place where
6 All. Smt. Maya Devi & Ors. Vs. Sri Sunil Kumar & Anr.
21
he lives. It will all depend upon the social
economic condition of the area where he
lives in. Broad classification could be
urban, semi urban and rural areas.

13. In India, in present time, both in
rural and urban areas more or less basic
needs to sustain life are same. Two meals
a day means not less that Rs. 50/- for a
person to lead a reasonably good life
looking to the various factors that are
taken into consideration to calculate per
capita income in the country. Children we
keep at par with adult on the ground that
they need more nutritious food because
they are often prone to various health
problems due to malnutrition, and the
medical expenses would go beyond
imagination and in case of absence of
enough financial source they lead to a
crippled life.

14. Apart from daily bread and butter
a person needs medical expenses and at
least minimum Rs. 50 per head for two
young couple a month and at least Rs. 100/-
for aged couple. Children need more
medical care and so each children may
require at least Rs. 100/- per month.

15. So a family of two persons (adult)
would require Rs. 200/- daily for two meals
and Rs. 100/- at least towards medical
treatment. It leads to an average monthly
Rs. 6000/- + 100/-= Rs. 6,100/- where
family is two adult and two children it
would come to Rs. 6,300/-.

16. The above calculation is based
upon average expenses incurred reasonably
upon every family including adult/major
and minor equally and medical expenses
may very. In order to make it reasonable we
keep it Rs. 200/- per family of four and Rs.
500/- per family of four and it will increase
Rs. 50/- on an average per person with
every increase of member in a family.

17. This above calculation is based on
our assessment qua the daily expenditure
that a human being incurs for its sustenance
but one should not loose sight of a fact that
in India there is still not enough education
in semi urban and rural areas regarding
population control as emotions still prevail
over logic and every family by and large
consists of not only aged parents but 3-4
children as dependents. In such a situation,
therefore, if every increase of number in
the family it results in increase of
assessment of income, it could go beyond
the prescribed minimum wage as it would
be dependent upon the family size. A
person of whose, who has not left behind
any statistics of his income, cannot be
presumed
to
be
earning
more
than
minimum wage and, therefore, it is needed
to put a ceiling upon the income at par with
a minimum wage while making assessment
for the purposes of computation of
compensation. The minimum wage has
been notified by the Central Government
from
time
to
time.
If
a
person's
employment is not recorded and he is doing
work of a labour, it would be more
appropriate to consider the notification
issued from time to time. The minimum
wage is determined taking into account
various
considerations
and
the
five
important considerations (vide report of
Expert Committee, Ministry of Labour and
Employment,
Government
of
India,
January, 2019) are:-

"a) the standard working class
family includes a wife and two children
apart
from
the
earning
worker,
an
equivalent of three adult consumption
units;
22 INDIAN LAW REPORTS ALLAHABAD SERIES

b) a net intake of 2,700 calorie
per
day
per
consumption
unit,
as
recommended in 1948 by Dr. Wallace
Aykroyd, first director of the Department of
Nutrition at the United Nations Food and
Agricultural Organization (FAO);

c) clothing requirements of 72
yeards (6.5 metres) per year per family;

d) a minimum housing rent
charged by the government for low-income
groups; and

e)
fuel,
lighting
and
other
miscellaneous items of expenditure to
constitute 20 per cent of the total minimum
wage."

18. The Apex Court in a number of
cases and more importantly in a celebrated
judgment in the case of Peoples Union for
Democratic Rights vs. Union of India,
AIR 1982 (SC) 1473 had observed that no
industry has a right to exist unless it is able
to pay its workmen at least a bare minimum
wage and which are determined by
applying principle of subsistence minimum
enough to ensure sustenance of workers. It
is in the light of this philosophy that
concept of minimum wage was held to be a
worker's
legal
right.
The
7th
pay
commission had accordingly expressed its
opinion that the need based norms would
be calculated on the basis of the cost of
food, clothing and detergent products using
prices from labour bureau Shimla and
raising presumption that the government
does not have any unskilled staff provided
for additional premium of 25% to count for
skilled factor. All this shows that only
anxiety that a human life not only deserves
respected living but is presumed to be
having a respected living. So in our
considered opinion even in the absence of
any income details of a person, who has
met a fatal accident and is survived by
dependents, the Court should follow the
rule of minimum wage. The worker could
be skilled or unskilled, the area could be
industrial or non industrial, applying the
law of averages the minimum wage
standard should be made a standard for
computing notionally the average monthly
income of the deceased.

19. The Ministry of Labour and
Employment
has
applied
certain
methodology for fixing notional minimum
wage and the different minimum wages
have been notified for different sectors.
Seven sectors have been defined like
agriculture (unskilled) with a minimum
INR 360/- minerals and mines (unskilled)
with INR 453/-, construction, maintenance
and
laydown
(unskilled)
INR
503/-,
sweeping and cleaning with INR 503,
watch and ward (i) without arms 656/- (ii)
with arms 732/- and loading and unloading
sector INR 503/- and stone mine sector
with different minimum wages between
INR 406/- and 326/- in cases of excavation
and removal and between INR 2494/- and
1027/- for stone breaking or stone crushing.
Those, who are working in well organized
sectors, their muster role is prepared and
the names are recorded but in agricultural
and sweeping and cleaning sector, there
would be large number of cases where
there is no recorded entry of the workers
and the labourers while on field or off the
field and in such circumstances, therefore,
it would be difficult to get the exact
statistics of the earning. Law of averaging
is well proved and widely acclaimed
mathematical technique to reach out to a
kind
of
reasonable
and
workable
statistically
arrived
an
analytical
assessment and, therefore, applying the law,
we calculate the average minimum wage
prescribed for agricultural unskilled and
sweeping and cleaning sector which is 360
and 504 respectively and that comes to
6 All. Smt. Maya Devi & Ors. Vs. Sri Sunil Kumar & Anr.
23
431.5 and rounding of last denomination
we make it 432. Since, it could be the case
of organized sector one may not get work
every day and mostly it happens that out of
30 days one gets work between 20-25 days
on an average so we take it that a person,
who is self-employed gets work and pay at
par with a minimum wages for 20 days.
The average, therefore comes to 432 x
20=INR 8640/- rounding off the same
would come to INR 8600 which according
to us, should be the minimum average
income of an individual in present time.
The State Government in Uttar Pradesh has
notified on December 17, 2018 the
minimum wage in the unskilled sector to be
around Rs. 200/-per day which according to
us by any standard is not acceptable, if a
family consists of more than four persons
and there is only one breadwinner in the
family. We have already discussed above in
detail about the basic requirements of two
meals a day and in addition thereto the
medical expenses. We have not discussed
education and other important aspects
where the expenditure is incurred. Since we
are
more
concern
for
minimum
requirements for survival, we fail to
understand how a family of four can
survive at Rs. 200/- per day in modern
times.

20. In our view in a dynamic society,
truly characterized with good governance
and
responsive
and
value
based
administration, the society warrants that
such assessments of economic prosperity or
otherwise of any household be credible,
specially from the point of view of
suitability of compensation measures. And,
therefore, dearness must be factored in
when such compensatory measures are
undertaken. Relying routinely upon the
older provisions and norms may not beat
the misery of the victim and the bereaved
ones.

21. In the case of Laxmi Devi, the
victim Rajendra Singh had died on
12.4.2004 and the high court fixed Rs.
100/- as per day income which was
uphold by the supreme court whereas in
the case of Sarla Verma (2009) 6 SCC
121 the issue was not the average
monthly income. In this case the
incident had taken place in the year
2008. The Apex Court in the case of
Pranay Sethi has referred to Santosh
Devi vs. National Insurance Company
Limited (2012) 6 SCC 421.

22. In Pranay Sethi, the Apex Court
discussed the future prospects of actual
salary
to
be
added
with
different
percentages at different age slab. However
what should be the actual salary, was left to
be dependent upon various factors. As we
have discussed above, the various factors in
determining the minimum wage and have
raised presumption that the deceased was
living a reasonably good life for the
sustenance on economic front to meet the
basic requirements and at least two meals a
day for each of the member of the family.
We consider it appropriate to presume that
a person must be having daily income at
par with minimum wage of Rs. 432/- in
present time but we may further observe
that a family of four may survive upon a
daily earning of Rs. 432/- but if it consists
of more members, one may have many
more sources to earn enough for sustenance
of family. So we are of the considered
opinion that in present time average
notional income per day for a family of
four should be 432/- and 10% should be
increased with every increase of member in
the family as dependent.
24 INDIAN LAW REPORTS ALLAHABAD SERIES

23. However, since in the case in hand
accident is of the year 2008, considering
the number of dependents, who survived
upon the sole breadwinner, the deceased,
we take Rs. 200/-as his per day income
notionally and if he earned for 25 days
only, his monthly income must have been
Rs. 5,000/-

24. Now coming to the other aspect of
the matter regarding deduction on account
of personal expenses, future prospects, loss
of estate, loss of consortium and other
conventional and traditional income, the
law is now come to be crystallized in the
judgment of the constitution bench in the
case of National Insurance Company
Limited. vs. Pranay Sethi and others (2017)
16 SCC 680. The constitution bench vide
paragraph-10 has held thus:-

"10. Now coming to the aspect of
future prospects and claim of compensation
in that head for those who are self
employed. This issue is no more res integra.
The Apex Court in Pranay Sethi (supra)
vide paras 56 and 57 has held thus:

"56. The seminal issue is the
fixation of future prospects in cases of
deceased who is self-employed or on a
fixed salary. Sarla Verma (supra) has
carved out an exception permitting the
claimants to bring materials on record to
get the benefit of addition of future
prospects. It has not, per se, allowed any
future prospects in respect of the said
category.

57. Having bestowed our anxious
consideration, we are disposed to think
when
we
accept
the
principle
of
standardization, there is really no rationale
not to apply the said principle to the selfemployed or a person who is on a fixed
salary. To follow the doctrine of actual
income at the time of death and not to add
any amount with regard to future prospects
to
the
income
for
the
purpose
of
determination of multiplicand would be
unjust. The determination of income while
computing compensation has to include
future prospects so that the method will
come within the ambit and sweep of just
compensation as postulated under Section
168 of the Act. In case of a deceased who
had held a permanent job with inbuilt grant
of annual increment, there is an acceptable
certainty. But to state that the legal
representatives of a deceased who was on a
fixed salary would not be entitled to the
benefit of future prospects for the purpose
of computation of compensation would be
inapposite. It is because the criterion of
distinction between the two in that event
would be certainty on the one hand and
staticness on the other. One may perceive
that the comparative measure is certainty
on the one hand and uncertainty on the
other but such a perception is fallacious. It
is because the price rise does affect a selfemployed person; and that apart there is
always an incessant effort to enhance one's
income for sustenance. The purchasing
capacity
of
a
salaried
person
on
permanent job when increases because of
grant of increments and pay revision or
for
some
other
change
in
service
conditions, there is always a competing
attitude in the private sector to enhance
the salary to get better efficiency from the
employees. Similarly, a person who is selfemployed is bound to garner his resources
and raise his charges/fees so that he can
live with same facilities. To have the
perception that he is likely to remain static
and his income to remain stagnant is
contrary to the fundamental concept of
human attitude which always intends to
live with dynamism and move and change
with the time. Though it may seem
appropriate that there cannot be certainty
6 All. Smt. Maya Devi & Ors. Vs. Sri Sunil Kumar & Anr.
25
in addition of future prospects to the
existing income unlike in the case of a
person having a permanent job, yet the said
perception
does
not
really
deserve
acceptance. We are inclined to think that
there can be some degree of difference as
regards the percentage that is meant for or
applied to in respect of the legal
representatives who claim on behalf of the
deceased who had a permanent job than a
person who is self-employed or on a fixed
salary. But not to apply the principle of
standardization on the foundation of
perceived
lack
of
certainty
would
tantamount to remaining oblivious to the
marrows of ground reality. And, therefore,
degree-test is imperative. Unless the
degree-test is applied and left to the parties
to adduce evidence to establish, it would be
unfair and inequitable. The degree-test has
to have the inbuilt concept of percentage.
Taking into consideration the cumulative
factors, namely, passage of time, the
changing society, escalation of price, the
change in price index, the human attitude
to follow a particular pattern of life, etc.,
an addition of 40% of the established
income of the deceased towards future
prospects and where the deceased was
below 40 years an addition of 25% where
the deceased was between the age of 40 to
50 years would be reasonable."

(emphasis added)

25. For loss of consortium, as he was
of quite young age and survived by his
wife, minor sons and daughter at a very
young age and towards love and affection
also, some considerable amount ought to
have been awarded. In Pranay Sethi (supra)
the Constitution Bench vide para 52 held
thus:

"52. As far as the conventional
heads are concerned, we find it difficult to
agree with the view expressed in Rajesh. It
has granted Rs. 25,000/- towards funeral
expenses, Rs. 1,00,000/- loss of consortium
and Rs. 1,00,000/- towards loss of care and
guidance for minor children. The head
relating to loss of care and minor children
does not exist. Though Rajesh refers to
Santosh Devi, 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
added)"
26 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Ultimately, the Court vide para 59
concluded thus:

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

59.1. The two-Judge Bench in
Santosh Devi v. National Insurance Co.
Ltd. (2012) 6 SCC 421 should have been
well advised to refer the matter to a larger
Bench as it was taking a different view than
what has been stated in Sarla Verma, a
judgment by a coordinate Bench. It is
because a coordinate Bench of the same
strength cannot take a contrary view than
what has been held by another coordinate
Bench.

59.2. As Rajesh v. Rajbir Singh
(2013) 9 SCC 54 has not taken note of the
decision in Reshma Kumari, which was
delivered at earlier point of time, the
decision in Rajesh (supra) is not a binding
precedent.

59.3.
While
determining
the
income, an addition of 50% of actual
salary to the income of the deceased
towards
future
prospects,
where
the
deceased had a permanent job and was
below the age of 40 years, should be made.
The addition should be 30%, if the age of
the deceased was between 40 to 50 years.
In case the deceased was between the age
of 50 to 60 years, the addition should be
15%. Actual salary should be read as
actual salary less tax.

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

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

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

59.7. The age of the deceased
should be the basis for applying the
multiplier.

59.8. Reasonable figures on
conventional heads, namely, loss of
estate, loss of consortium and funeral
expenses should be Rs. 15,000/-, Rs.
40,000/- and Rs. 15,000/- respectively.
The
aforesaid
amounts
should
be
enhanced at the rate of 10% in every
three years."

27. The above legal position has not
been disputed and, therefore, the compensation
is to be awarded after its computation in terms
of the judgment in the case of Sarla Verma
(Smt.) & ors. vs. Delhi Transport Corporation
& Anr. and so far as the income aspect is
concerned, we are of the considered view that
the judgments in the cases of Laxmi Devi &
others v. Mohammad Tabbar & Another
(2008) 12 SCC 165 and Sarla Verma & Ors. v.
Delhi Tranpsort Corporation & Anr. (2009) 6
SCC 121 have come to be upheld and
subsequently noticed in the Constitution
Bench judgment (supra), hence need not be
reiterated.

28. Considering the age of the
deceased to be 33 years, we are of the
opinion that 40% income should be added
towards the future prospects. On the point
of deduction from income towards personal
6 All. Smt. Maya Devi & Ors. Vs. Sri Sunil Kumar & Anr.
27
expenses also the law is almost settled by
the Constitution Bench. Vide para 59.5, the
Bench has approved paras 30 to 32 of the
judgment in Sarla Verma (supra). However,
for the purpose of the case in hand Para-30
of the judgment is relevant and that runs as
under:-

"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 Chandra4, the
general practice is to apply standardized
deductions. Having considered several
subsequent decisions of this (2003) 3 SLR
(R) 601 Court, we are of the view that
where the deceased was married, the
deduction towards personal and living
expenses of the deceased, should be onethird
(1/3rd)
where
the
number
of
dependent family members is 2 to 3, onefourth (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."

29. For the purposes of case in hand,
para 30 is relevant. The dependents are the
wife, two minor sons, a minor daughters,
and mother and therefore, 1/5th deduction
towards personal expenses will be valid.

30. On the question of multiplier also
we find substance in the argument of
learned counsel for the appellants that
multiplier of 17 should have been applied.
In Pranay Shetty's case the Constitution
Bench of the Apex Court concerned with
the view taken in Rajesh Kumar that has
approved the table given in Sarla Verma.
Speaking for the Bench Chief Justice
Mishra held that "the multiplier has already
been fixed in Sarla Verma which has been
approved in eshma Kumari with which we
concur." In Sarla Verma (supra) vide
paragraph 42 the Court has held thus:

"42. We therefore hold that the
multiplier to be used should be as
mentioned in column (4) of the table above
(prepared by applying Susamma Thomas,
Trilok Chandra and Charlie), which starts
with an operative multiplier of 18 (for the
age groups of 15 of 20 and 21 to 25 years),
reduced by one unit for every five years,
that is M-17 for 26 to 30 years, M-16 for 31
to 35 years, M-15 for 36 to 40 years, M-14
for 41 to 45 years, M-13 for 46 to 50 years,
then reduced by two units for every five
years, that is, M-11 for 51 to 55 years, M-9
for 56 to 60 years, M-7 for 61 to 65 years
and M-5 for 66 years to 70 years."

31. In view of the above principles
laid down in Sarla Verma affirmed in
Pranay Sethi, in the present case
multiplier of 16 would be applicable
and so we do would be applicable for
the deceased having died at the age of
33 years and so we do apply.

32. Now coming to conventional
heads the Constitution Bench while
providing for Rs. 40,000/- for loss of
consortium, Rs. 15,00/- for loss of
estate and Rs. 15,000/- towards funeral
expenses, the Bench recommended 10%
hike at every three years. Thus, the
Apex Court applied the above principle
and
fixed
amount
in
different
conventional heads to bring about
consistency and to avoid any variation
in the orders passed by the tribunals or
courts.

33. Accordingly, we direct a total
compensation admissible for the claimant
be
given
to
them
is
as
under:-
28 INDIAN LAW REPORTS ALLAHABAD SERIES
Notional Income
5,000/- p.m.
Rs. 60,000/-
p.a.
Future Prospects

40% of Rs. 60000/-
Rs. 24,000/-
Total Income

Rs. 84,000/-
Deduction towards
personal expenses
1/5th of total
income
Rs. 16,800/-
Dependency
84,000-16,800
Rs. 67,200/-
Multiplier

16
Compensation
67,200/- x 16
Rs. 10,75,200/-
Loss of Consortium

Rs. 40,000/-
Funeral Expenses

Rs. 15,000/-
Loss of Estate

Rs. 15,000/-
Total
Compensation

Rs. 11,45,200/-

34. Thus, the compensation awarded
by the Court below is enhanced from
3,45,000/- to Rs. 11,45,200/- with simple
interest @ of 7% per annum from the date
of presentation of the application.

35. In view of the above, the appeal
stands allowed. The compensation awarded
to the claimants/appellants under the order
of
the
Tribunal
dated
19.8.2010
is
accordingly enhanced and award stands
modified to the extent indicated herein
above.
----------
(2020)06ILR A28
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE SHAMIM AHMED, J.

First Appeal No. 199 of 2017

Prabhat Singh ...Appellant
Versus
Smt. Sweta Yadav ...Respondent

Counsel for the Appellant:
Sri Sandeep Saxena, Sri Ajay Kumar Rai,
Sri Dileep Chandra Mishra, Sri Samarth
Krishna

Counsel for the Respondent:
Sri Anil Kumar, Sri Arvind Srivastava, Sri
Kandarp
Srivastava,
Sri
Kaustubh
Srivastava

A. Consent given for divorce-Respondent wife
has withdrawn consent for mutual divorce-before
passing of decree- mutual consent-can be withdrawn
by one of the parties -before a Court grants decree of
divorce-when consent of one party is withdrawnCourt cannot grant decree of divorce by mutual
consent-impugned order legal.

First Appeal dismissed. (E-9)

List of cases cited:-

1. Smt. Sureshta Devi vs. Om Prakash reported in
1991 2 SCC 25

2. Smruti Pahariya v. Sanjay Pahariya, 2009 13 SCC
338

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard learned counsel for the appellant
and learned counsel for the sole respondent.

2. This first appeal has been filed by the
appellant Prabhat Singh against the judgement
and order dated 15.03.2017 passed by Principal
Judge, Family Court, Ghaziabad in Petition
No.392 of 2017 (Smt. Shweta Yadav Vs.
Prabhat Singh), under Section 13-B of Hindu
Marriage Act, 1955 (hereinafter referred to as
the "Act"), by which the court below has
directed the appellant to return the custody of
minor child and referred the petition under
Section 13-B of the Act to the mediation center
on the ground that the respondent-Smt. Shweta
Yadav has withdrawn her consent for divorce
by
mutual
consent.