# Smt. Munni Devi & Ors v. Heera Lal & Ors. Opp. Parties 562 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 3 ILRA 561
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-23
- **Case number:** First Appeal From Order No. 2974 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-munni-devi-ors-v-heera-lal-ors-opp-parties-562-indian-law-reports-allahabad-46916
- **Pages:** 7

## Headnote

Sri Jagadish Prasad Yadav, Sri Komal Mehrotra

Deceased was 19 years -50 % be added
towards
future
prospects-and
16
as
multiplier on IInd Schedule of the ActAppeal partly allowed . (E-7)

Cases cited:

1.United India Insurance Co. Ltd. Vs U.C.
Thakur & ors., 2006 ACJ 2759

## Text

3 All. Smt. Munni Devi & Ors. Vs. Heera Lal & Ors.
561
case because it is not an ordinary proceedings
as
election
proceedings
are
statutory
proceedings and every ground has to be pleaded
specifically in the plaint on the basis of which
the relief is being sought to be claimed and it is
apparent that learned counsel for the petitioner
has ultimately reduced the controversies down
to non supply of the Form 17C to the polling
agents of the petitioner by the Presiding Officer
which was mandatory provision, therefore, it
was bounden duty of the petitioner's counsel to
plead in the pleadings that the said Form 17C
was never prepared by the Presiding Officer
because of which copy of the same was not
provided to the polling agent. Merely
mentioning that copy of Form 17C was not
given to the polling agent would not suffice to
conclude that copy of the same was never
prepared. Moreover, it is also apparent that the
petitioner had full opportunity to obtain a copy
of Form 17C from Election Office under Rule
93 of the 1961 which has not been done nor any
evidence has been shown that any effort was
made to obtain the same and his request was
refused. The petitioner cannot be allowed
liberty to shift this burden upon the respondent
that he should have obtained a copy of Form
17C in order to defend that the returned
candidate had won the election in accordance
with the law and Rules. From the evidence
which has been adduced from the side of the
respondent no. 1, it is true that DW-1 has been
evasive with respect to questions, which were
asked, pertaining to Form 17C as she had
answered that she cannot reply regarding these
factual aspects unless she sees the record and it
cannot be believed that she might not be
knowing about the Form 17C but even if it be
taken to be true that copy of Form 17C was not
provided, the other condition which was
required to be proved by the petitioner, is that
the said breach of mandatory Rule actually
materially affected the election of the
respondent no. 1. Neither there appears to be
any specific pleading on record in that regard
nor clear evidence has come on record in this
regard, therefore, it is apparent that only on the
basis of presumption, the violation of Section
66 and 64 and Rules 49S, 55C, 56C, 56D and
66-A cannot be held proved. This issue is
decided accordingly against the petitioner.

Finding on Issue no. 4.

90. According to this issue, this Court
has to decide whether election petition is
not maintenable due to being bereft of
material facts as stated in paragraph no. 16
of the written statement.

91. Since this court has already
rejected the application of the Respondent
No.1 moved under Order VII Rule 11
C.P.C. vide order dated 12.4.2019, this
issue does not require any separate finding
to
be
given
and
stands
answered
accordingly.

Finding on Issue No. 3:- This issue
relates to relief.

92. After having given finding on all
the three issues mentioned above, this
election petition deserves to be dismissed
and is accordingly, dismissed, with cost easy.
----------
(2021)03ILR A561
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

First Appeal From Order No. 2974 of 2017

Smt. Munni Devi & Ors. ...Appellants
Versus
Heera Lal & Ors. ...Opp. Parties
562 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Ram Singh, Sri Amit Kumar Singh

Counsel for the Respondents:
Sri Jagadish Prasad Yadav, Sri Komal Mehrotra

Deceased was 19 years -50 % be added
towards
future
prospects-and
16
as
multiplier on IInd Schedule of the ActAppeal partly allowed . (E-7)

Cases cited:

1.United India Insurance Co. Ltd. Vs U.C.
Thakur & ors., 2006 ACJ 2759

2. Laxmi Devi & ors. Vs Mohd. Tambar & ors.,
2008 (2) T.A.C. 394 (SC)

3.Munna Lal Jain & ors. Vs Bipin Kumar Sharma
& ors., 2015 (3) T.A.C. (SC)

4. Rajesh & ors. Vs Rajveer Singh & ors., 2013
ACJ 1403

5. Sarla Verma Vs Delhi Transport Corporation,
(2009) 6 SCC 121

6.National Insurance Company Limited Vs
Pranay Sethi & ors., 2017 0 Supreme (SC) 1050

7. Kirti Vs Oriental Insurance Co. Ltd., 2021 (1)
TAC (1) S.C.

8.Anita Sharma & ors. Vs New India Assurance
Co. Ltd. & anr., (2021) 1 SCC 171

9.Sarla Verma Vs Delhi Transport Corporation,
(2009) 6 SCC 121

10. United India Insurance Co. Ltd. Vs Satinder
Kaur @ Satwinder Kaur, 2020 (0) AIJEL-SC
66336

11. Magma General Insurance Co. Ltd. Vs Nanu
Ram Alias Chuhru Ram & Ors (2018) 18 SCC
130

12. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (S.C.)

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard learned counsel for the
appellant and Sri Komal Mehrotra, learned
counsel for the respondent.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 23.5.2017 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No.9, Allahabad now
Prayagraj
(hereinafter
referred
to
as
'Tribunal') in M.A.C.No.356 of 2016
awarding a sum of Rs.4,47,000/- with
interest at the rate of 7% as compensation.

3. Facts, in nutshell, as culled out
from the record, are that a First Information
Report came to be filed being No.046 of
2016 and in the said F.I.R. it is mentioned
that on 14.3.2016 at about 8.00 p.m. when
the deceased was going to his home from
Sahason (name of place) and when he
reached Balipur Service Road, a tractor
registered as UP 70 DE 8939 which was
being driven at an exorbitant speed, dashed
with the motorcycle bearing No.UP 70 BZ
5893 driven by deceased which came
below the tyres of the said tractor and the
deceased died on the spot. The claimants
filed the claim petition contending that the
deceased was doing carpentry work and
was earning Rs.22,000/- per month. The
parents of the deceased were aged 39 and
38 years respectively. The deceased was
looking after his minor brothers and sisters
who were in the age group of 5 to 14 years.

4. The claimants had claimed sum of
Rs.91,50,000/-. On service of notice, the
owner and driver of the vehicle filed their
replies and the owner accepted that he was
the owner of the vehicle but denied most of
the averments made in the claim petition.
The vehicle was insured with National
Insurance
Company
Limited.
The
documents
were
produced
and
were
3 All. Smt. Munni Devi & Ors. Vs. Heera Lal & Ors.
563
proved. The Tribunal framed about five
issues and held all of them in favour of the
claimants holding that there was no breach
of policy conditions. The license was valid
license and in issue No.5, the Tribunal has
granted
compensation.
It
is
this
compensation which has aggrieved the
appellants.

5. The owner and the Insurance
Company have accepted the findings as far
as their liability is concerned. The Tribunal
even held that strict trappings of criminal
and civil proceedings could not be made
applicable to the proceedings under the
Motor Vehicles Act, 1988 and relied on the
decisions in United India Insurance Co.
Ltd. Vs. U.C. Thakur and others, 2006
ACJ 2759 and National Insurance Co.
Ltd. Vs. Mahfuja Begum and others,
2002 ACJ 214. There is no dispute as far
as the said issue is concerned.

6. The appellants examined witnesses.
We do not delve into the same on all other
aspects except the aspect of compensation.
The deceased was considered to be 19
years of age. Kamal Singh, father of the
deceased, has testified that the deceased
was a student of B.Sc. Ist year and was also
carrying on the business of carpentry. The
testimony of P.W.3, Radhey Shyam,
revealed that he knew the deceased and the
deceased had prepared certain items of
furniture for him and the deceased was
being paid Rs.600/- as daily labour charges.
Unfortunately, no documentary evidence
was produced to prove the same. The
learned Tribunal has returned the finding of
negligence of the driver of the tractor and
has also returned the finding that the
deceased had proper driving license. The
Tribunal, as far as policy is concerned,
returned the finding in favour of the
claimants and the owner. All those findings
have attained finality. The Insurance
Company has neither led any evidence nor
orally submitted that there was breach of
policy condition.

7. The claimants have claimed a sum
of Rs.91,50,000/- contending that the
deceased was earning Rs.22,000/- per
month and have claimed 18% rate of
interest. Kamal Singh, P.W.2, has accepted
the fact that he does not have any proof
about the income of the deceased. He has
accepted that the deceased was student but
was also doing work during his free time.
The learned Tribunal has therefore not
accepted the fact that the deceased was
earning Rs.22,000/-. If the deceased was
earning Rs. 22,000/-, he would be a tax
payee. The learned Tribunal has relied on
the decision in Laxmi Devi and others Vs.
Mohd. Tambar and others, 2008 (2)
T.A.C. 394 (SC). According to learned
Tribunal the decision in Munna Lal Jain
and others Vs. Bipin Kumar Sharma and
others, 2015 (3) T.A.C. (SC) which was
relied by the claimants would not be
applicable to the facts of this case. Learned
Tribunal has heavily relied on the decision
in Rajesh and others Vs. Rajveer Singh
and others, 2013 ACJ 1403 for granting
future loss of income.

8. The appellants are the legal heirs of
the deceased who are six in number. They
are the parents and minor brothers and
sisters of the deceased who met with the
accident on 14.3.2016. It is not in dispute
that he was engaged in work of carpentry
namely his employment. The accident is
not in dispute. The Insurance Company has
not challenged the award and have
accepted their liability as no appeal has
been preferred by them whereby their
liability has been fixed by the Tribunal.
The owner, though served with the notice,
564 INDIAN LAW REPORTS ALLAHABAD SERIES
has absented himself as it appears that the
Tribunal had mulcted the liability on the
Insurance Company.

9. The Tribunal considered the age of
the deceased to be 19 years, considered the
income of the deceased to be Rs.3,000/- per
month, added 50% of the income as future
prospects and deducted half of the amount
towards personal expenses of the deceased.
The Tribunal has granted multiplier of 16
and a sum of Rs.15,000/- under the head of
non
pecuniary
damages
and
thereby
awarded compensation of Rs.4,47,000/- to
the legal heirs of the deceased along with
interest at the rate of 7%.

10. Learned counsel for the appellant
has submitted that minimum wages in the
state of Uttar Pradesh would come to
Rs.250/- per day and as the deceased was
carpenter by profession, his income should
have been considered to be Rs.6,000/- per
month. It is further submitted that the
deceased was in the age bracket of 15-20
years, hence, the multiplier would be 18 in
view of the decision of the Apex Court in
Sarla
Verma
Vs.
Delhi
Transport
Corporation, (2009) 6 SCC 121.

11. It is further submitted that the
amount awarded by the Tribunal under
non-pecuniary heads is on the lower side
and requires enhancement in view of the
decision of the Apex Court in National
Insurance Company Limited Vs. Pranay
Sethi and Others, 2017 0 Supreme (SC)
1050. According to learned counsel for the
appellants Rs.50,000/- should be paid for
filial consortium and Rs.30,000/- for loss of
estate
of
pecuniary
expenses.
It
is
submitted that the interest should be 18%.

12. Per contra, Sri Komal Mehrotra,
learned counsel for respondent-Insurance
Company has vehemently submitted that the
claimants have not proved that the deceased
was earning member and was doing
carpentry work as he was 20 years of age.

13. It is further submitted by learned
counsel for Insurance Company that the
addition towards future prospects should be
40% and not 50% as awarded by the Tribunal
and he has relied on the decision of the Apex
Court in Pranay Sethi and Others (Supra)
as far as grant of future prospects is
concerned.

14. The learned Tribunal while granting
interest has relied on the decisions of the
Apex Court in Rajesh and others (Supra).
The learned Tribunal as far as grant of
interest is concerned in the year 2017 is
justified is the submission of learned Counsel
for the Insurance Company.

15. In recent judgment titled Kirti Vs.
Oriental Insurance Co. Ltd., 2021 (1) TAC
(1) S.C., principle of assessment even for
home maker has been narrated. We can even
fall back on the decision of the Apex Court in
the case of Anita Sharma and Others Vs.
New India Assurance Co. Ltd. and
another, (2021) 1 SCC 171.

16. The principles for determining the
compensation
rather
the
criteria
for
assessment of compensation in death cases
are: (i) Age of the deceased at the relevant
time, (ii) Number of dependants left behind
by deceased and (iii) Income of the deceased
at the time of death, (iv) Selection of
multiplier shall be as indicated in the Table in
Sarla Verma's case and (v) Grant of future
prospects shall be in view of the decision in
Pranay Sethi (Supra).

17. We would not have burdened the
judgment
with
authoritative
3 All. Smt. Munni Devi & Ors. Vs. Heera Lal & Ors.
565
pronouncements but it appears that the
learned Tribunal has not followed the
decisions of the Apex Court in Sarla
Verma and Pranay Sethi (Supra) while
adding 50% towards future prospects and
granting '16' as multiplier based on IInd
Schedule of the Act, 1988.

18. In that view of the matter, without
delving into the factual scenario, as it was
proved by P.W.3 that the deceased had
undertaken carpentry work and even if we
consider him to be a person not being in
work, recently the apex court has held that
minimum wage would be made applicable
which we are considering to be Rs.6,000/-
per month.

19. Unfortunately, the Tribunal relied
on the IInd Schedule of the Act, 1988 and
did not consider the judgment of the Apex
Court
in
Sarla
Verma
Vs.
Delhi
Transport Corporation, (2009) 6 SCC
121 which would be applicable now as far
as multiplier is concerned.

20. We are constrained to hold that
after the decisions on Sarla Verma
(Supra) and Pranay Sethi (Supra), the
learned Tribunal was under an obligation to
follow the said dicta and not the IInd
Schedule of the Act, 1988 if the claim
petition filed under Section 166 of the Act,
1988. Hence, we are hasten to hold that
multiplier of 18 would be just multiplier.

21. As a general rule as held by the
Apex Court in catena of decisions, if
deceased was a bachelor, the deduction
would be 1/2. However, in Pranay Sethi
(Supra) it has been held that the Tribunals
and the Appellate Court can take different
view if there are more persons depending on
the deceased. In our case, the deceased had
two minor sisters and two minor brothers.
According to the evidences led and the
depositions of P.W.1 and 2, after the father of
the deceased who was earning Rs.4,000/- per
month as an attendant, the young boy had to
undertake carpentry work so that he could
meet with the family needs. Hence, we
deduct 1/3rd towards his personal expenses
as he would be giving more to the family
instead of being extravagant of expending 1/2
on him.

22. We have deducted 1/3rd instead of
1/2 as the deceased was the only major son.
The father, no doubt, was having his own
income but younger brothers and sisters were
also being fed by him which has come in
evidence. In that view of the matter, we have
placed reliance on the decision in United
India Insurance Co. Ltd. Vs. Satinder
Kaur @ Satwinder Kaur, 2020 (0) AIJELSC 66336.

23. As far as addition of future
prospects is concerned, it would be 40% in
view of the decision of the Apex Court in
Pranay Sethi (Supra) as the deceased was
below 40 years of age and was engaged in
carpentry work.

24. The parents have lost their son at a
very young age, the Tribunal has awarded
meagre amount under the head of filial
consortium. The Apex Court while awarding
filial
consortium
in
Magma
General
Insurance Co. Ltd. Vs. Nanu Ram Alias
Chuhru Ram & Ors (2018) 18 SCC 130
has held as under:

"8.7 A Constitution Bench of this Court
in Pranay Sethi (Supra) 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
566 INDIAN LAW REPORTS ALLAHABAD SERIES
'spousal consortium', 'parental consortium',
and 'filial consortium'.

The right to consortium would include
the company, care, help, comfort, guidance,
solace and affection of the deceased, which is
a loss to his family. With respect to a spouse,
it would include sexual relations with the
deceased spouse.3

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, co-operation, affection, and aid of the
other in every conjugal relation."4

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."

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.

Consortium is a special prism reflecting
changing norms about the status and worth
of actual relationship. Modern jurisdictions
world over have recognized that the value of
a child's consortium far exceeds the
economic value of the compensation awarded
in the case of the death of a child. Most
jurisdiction therefore permit parents to be
awarded compensation under the loss of
consortium on the death of a child. The
amount awarded to the parent is a
compensation for loss of the love, affection,
care and companionship of the child.

The
Motor
Vehicles
Act
is
a
beneficial legislation aimed at providing
relief to the victims or their families, in
cases of genuine claims. In case where a
parent has lost their minor child, or
unmarried son or daughter, the parents
are entitled to be awarded loss of
consortium under the head of filial
consortium.

Parental consortium is awarded to
children who loss their parents in motor
vehicle accidents under the Act.

A few High Courts have awarded
compensation on this count5. However,
there was no clarity with respect to the
principles on which compensation could be
awarded on loss of consortium filial
consortium.

The amount of compensation to be
awarded as consortium will be governed by
the principles of awarding compensation
under 'Loss of Consortium' as laid down in
Prany Sethi (Supra).

In the present case, we deem it
appropriate to award the father and the
sister of the deceased, an amount of
Rs.40,000/-
each
for
loss
of
filial
consortium." (Emphasis Added)

25. Hence, we award Rs.50,000/-
towards filial consortium and Rs.30,000/-
under other non-pecuniary heads.

26. Hence, the total compensation
payable to the appellants as discussed
herein above would be:

i. Income Rs.6,000/-

ii. Percentage towards future prospects
: 40% namely Rs.2400/-

iii. Total income : Rs. 6,000 + 2400 =
Rs.8,400/-

iv. Income after deduction of 1/3rd :
Rs.5600/-

v. Annual income : Rs.5600 x 12 =
Rs.67,200/-

vi. Multiplier applicable : 18

vii. Loss of dependency: Rs.67,200 x
18 = Rs.12,09,600/-
3 All. Smt. Manjita Devi & Anr. Vs. State of U.P. & Ors.
567

viii. Amount towards filial consortium
: Rs.50,000/-

ix. Amount towards loss of estate :
Rs.30,000/-

x. Total compensation : 12,89,600/-

27. This takes us to the vexed question
of grant of interest. The repo rate is declining
day in day out. The Rule 220 (6) of Uttar
Pradesh
Motor
Vehicles
Rules
(11th
Amendment), 2011 prescribes 7% rate of
interest. We cannot grant interest less than
7% and, therefore, in view of the decision of
the Apex Court in National Insurance Co.
Ltd. Vs. Mannat Johal and Others, 2019
(2) T.A.C. 705 (S.C.), we consider it just and
proper to award 7.5% rate of interest. The
interest has to be from the date of filing of the
claim petition and we confirm the same.

28. No other grounds are urged orally
when the matter was heard.

29. In view of the above, the appeal is
partly allowed. Judgment and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The respondent-Insurance
Company shall deposit the amount within a
period of 12 weeks from today with interest
at the rate of 7.5% from the date of filing of
the claim petition till the amount is deposited.
The amount already deposited be deducted
from the amount to be deposited.

30. The learned Registrar General is
requested to circulate this judgment to the
Tribunals so that proper multiplier be
awarded by the Tribunals.
----------
(2021)03ILR A567
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 746 of 2020

Smt. Manjita Devi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri R.B. Singh, Sri Kamlesh Kumar Yadav, Sri
Ajay Pandey, Sri Ghanshyam Yadav

Counsel for the Respondents:
A.G.A., Sri Ajay Pandey

Husband claims wife to be in illegal
custody-wife stated to living on free will -
matrimonial
discord-Writ
of
habeas
corpus-writ of right and not of courseW.P. dismissed. (E-7)

Cases cited:

1. Mohammad Ikram Hussain Vs St. of U.P. &
ors., AIR 1964 SC 1625

2. Kanu Sanyal Vs District Magistrate Darjeeling,
(1973) 2 SCC 674

3. Soniya & anr. Vs St. of U.P. & ors. Habeas
Corpus Writ Petition No. 283 of 2020, decided
on 18.02.2021

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Ghanshyam Yadav
holding brief of Sri Kamlesh Kumar Yadav,
learned counsel for the petitioners, Sri Ajay
Pandey, learned counsel appearing for the
respondent no. 3 and Sri Vinod Kant,
learned
Additional
Advocate
General
appearing alongwith Sri Pankaj Saxena,
learned Additional Government Advocate-I
for the State-respondents.

2. Pursuant to the rule nisi issued
earlier, the petitioner no. 1 is present in