# Smt. Nilofar v. Smt. Sarika Arora & Ors. 198 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 5 ILRA 197
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-11
- **Case number:** First Appeal From Order No. 2155 of 2017
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nilofar-v-smt-sarika-arora-ors-198-indian-law-reports-allahabad-series-50188
- **Pages:** 7

## Headnote

A. Civil Law - Motor Vehicle Act, 1988 -
Section
176
-
challenge
toenhancement of claim- deceased died
leaving behind his wife-the tribunal
considered the deceased income Rs.
3000/- per month in place of 10,000/-
per month and has not granted future
loss of income-The claimant/ wife is
entitled to 50% enhancement in wages
towards future prospects, consistent
with
the
UP
Rules,
1998-Total
compensation would be Rs. 19,74,000/-
and rate of interest would be 7% -the
insurance company shall deposit the
amount within 3 months .(Para 1 to 13)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

5 All. Smt. Nilofar Vs. Smt. Sarika Arora & Ors.
197

6. 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 respondentInsurance Company shall deposit the
amount forthwith with interest as directed
above. The amount already deposited be
deducted from the amount to be deposited.

7. Record and proceedings be sent
back to the Tribunal forthwith. The amount
be paid to the claimants and no amount be
kept in fixed deposit.

8. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of investment
is not passed because applicants /claimants
are neither illiterate or rustic villagers.

9. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguri P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, total amount
of interest, accrued on the principal amount
of compensation is to be apportioned on
financial year to financial year basis and if
the interest payable to claimant for any
financial
year
exceeds
Rs.50,000/-,
insurance company/owner is/are entitled to
deduct appropriate amount under the head of
'Tax Deducted at Source' as provided u/s
194A (3) (ix) of the Income Tax Act, 1961
and if the amount of interest does not
exceeds Rs.50,000/- in any financial year,
registry of this Tribunal is directed to allow
the claimant to withdraw the amount
without producing the certificate from the
concerned Income- Tax Authority. The
aforesaid view has been reiterated by this
High Court in Review Application No.1 of
2020 in First Appeal From Order No.23 of
2001 (Smt. Sudesna and others Vs. Hari
Singh and another) while disbursing the
amount. The said decision has also been
reiterated by High Court Gujarat in
R/Special Civil Application No.4800 of
2021 (The Oriental Insurance Co. Ltd. v.
Chief Commissioner of Income Tax (TDS)
decided on 5.4.2022.

10. Fresh Award be drawn accordingly
in the above petition by the tribunal as per
the modification made herein. The Tribunals
in the State shall follow the direction of this
Court as herein aforementioned as far as
disbursement is concerned, it should look
into the condition of the litigant and the
pendency of the matter and judgment of A.V.
Padma (supra). The same is to be applied
looking to the facts of each case.

11. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj Allianz General Insurance Company
Private Ltd. v. Union of India and others
vide order dated 27.1.2022, as the purpose
of keeping compensation is to safeguard the
interest of the claimants. As long period has
elapsed, the amount be deposited in the
Saving Account of claimants in Nationalized
Bank without F.D.R.
----------
(2023) 5 ILRA 197
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.04.2023
BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 2155 of 2017

Smt. Nilofar ...Appellant
Versus
Smt. Sarika Arora & Ors. ...Respondents
198 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Bijai Prakash Tiwari

Counsel for the Respondents:
Ms. Aarushi Khare

A. Civil Law - Motor Vehicle Act, 1988 -
Section
176
-
challenge
toenhancement of claim- deceased died
leaving behind his wife-the tribunal
considered the deceased income Rs.
3000/- per month in place of 10,000/-
per month and has not granted future
loss of income-The claimant/ wife is
entitled to 50% enhancement in wages
towards future prospects, consistent
with
the
UP
Rules,
1998-Total
compensation would be Rs. 19,74,000/-
and rate of interest would be 7% -the
insurance company shall deposit the
amount within 3 months .(Para 1 to 13)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. NICL Vs Pranay Sethi & ors. (2017) 16 SCC
680

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

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

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The appeal arises out of a
judgment and award dated 03.04.2017
rendered by the Motor Accident Claims
Tribunal/Additional
District
Judge,
Court No.4, Kanpur Nagar in Claim
Petition No.75 of 2013 (Nilofar v.
Sarika Arora and others) partly allowing
the claim of the claimant. This appeal
has been filed by the claimant/appellant
for enhancement of the amount awarded
by
the
tribunal
in
the
impugned
judgment.

2. The brief case of the claimant
before the learned tribunal was that the
deceased died in an accident on 14.08.2012
which was caused entirely by rash and
negligent driving of the driver of the
offending
truck
bearing
registration
No.U.P.-T/1360. On the fateful day, the
deceased was riding a motorcycle when the
truck collided with him. At the time of his
death, the deceased was 28 years old. The
claimant-appellant was dependent on the
deceased.

I. Compensation awarded by the
learned tribunal:

3. The
learned
tribunal
in
the
impugned
judgment
dated
03.04.2017
awarded compensation which is depicted in
a tabulated form hereunder:

Sr.
No.
Heads
Amount (in rupees)
1
Monthly Income (A)
3000/-
2
Annual Income
(A x 12 = B)
3000 x 12 =
36,000/-
3
Future prospects (C)
50% of 36,000=18,000
4
Annual Income + Future
Prospects
(B + C = D)
36,000 + 18,000/-
=54,000/-
5
Total
income
after
deduction (E)
1/3 of 54,000/-
=18,000/-
6
Annual
Loss
of
Dependency (D-E = F)
54,000-18,000/-
=36,000/-
6
Multiplier (G)
18
7
Total loss of dependency
(F x G = H )
36000 x 18
=6,48,000/-
8
Compensation (H)
6,48,000/-
9
Conventional Heads: (I)
(a) Loss of love and
affection
(b) Loss of consortium
(c) Loss of Estate
(d) Funeral
15,000/-
10
Total
compensation
(H+ I = J)
6,63,000/-
5 All. Smt. Nilofar Vs. Smt. Sarika Arora & Ors.
199
11
Interest
7.00%

4. Shri Bijai Prakash Tiwari, learned
counsel for the appellant-claimant and
Ms.Aarushi Khare, learned counsel for the
respondent-insurance company agree that
only the following questions fall for
consideration in this appeal:-

A. Whether the learned tribunal
had correctly determined the income of the
deceased in the record?

B.
Whether
learned
tribunal
correctly computed the compensation under
these various heads :-

(i) conventional heads,

(ii) future prospects,

(iii) multiplier, and

(iv) interest while computing the
compensation?

4.(A) Income of the deceased:

5. The claimant asserted in the claim
petition that the deceased was engaged in
the sale of garments. The income of the
deceased from his business was Rs.15,000/-
per
month.
The
claimant-appellant
introduced both the oral and documentary
evidences to establish the income of the
deceased. The learned tribunal assessed the
income of the deceased at Rs.3000/- per
month. Learned tribunal while declining to
accept the income as asserted by the
claimant held as under:

"32. With profound respect for
Hon'ble High Court and Hon'ble Surpeme
Court of India, I am of the opinion that
both the above case laws do not help the
claimant in as much as the papers
pertaining to income tax return have not
been specifically pleaded and the evidence
is beyond the pleadings.

33. There is also no supporting
evidence regarding his business. If he the
deceased was engaged in the business,
there should have been evidence regarding
sale and purchase of the garments. There is
no registration in the sales tax. There is no
Books of accounts, bills vouchers, balance
sheet, etc. In the absence of any supporting
evidence, the source of income of the
deceased could not be proved by the
claimant.

34. Even in the case of absence of
source of income, it cannot be said that an
young major man would not have been
earning any thing. The deceased must have
been earning reasonable amount for the
livelihood of himself and his family.
Hon'ble Supreme Court of India has rule in
Laxmi Devi and others v. Mohd. Tabbar
2008(2) T.A.C. 304 (SC) that in absence of
the source of income, the income may be
assessed at the rate of Rs.100 per day.
Keeping in view of this settled law, the
income of the deceased is assessed
Rs.3000/- per month and multiplied to 12,
the annual income becomes Rs.36000/-."

6. P.W.1-Nilofar (wife of the deceased)
admitted in her testimony that she was not
aware of various details of the business of
the deceased like name of the firm,
registration certificate, statutory licences
and as to whether the deceased was the
proprietor or engaged in a partnership with
others. She also admitted under cross
examination that she is not in a position to
give any book of accounts or any document
relating to the business.

7. The claimant had also introduced
the income tax return of the deceased
which was filed a few months prior to his
death as evidence before the learned
tribunal. P.W.1 deposed that she came to
know about the income tax return only
200 INDIAN LAW REPORTS ALLAHABAD SERIES
when she received a notice from the
income tax authority after the death of her
husband.

8. The perusal of the testimony of the
P.W.1 Smt. Nilopher, wife of the deceased
is truthful. In many families ladies often do
not have information about the details of
the business or documentations relating to
the same. It is unsurprising that the
claimant failed to produce documentary
evidence relating to the business and the
same cannot be held against the claimant.
However, it is noteworthy that the P.W. 1
was never confronted with the question as
to whether the deceased was in fact running
a garment business or not. The assertion in
the claim petition that the deceased ran a
garments shop was never challenged and is
liable to be believed.

9. The question regarding his income
is
slightly
more
vexed.
However,
reasonable start point is the income tax
return which was introduced as evidence
and marked as paper no.77(c). The return was
filed a couple of months prior to the death of
the deceased. The income tax return reflects
the gross total income of the deceased. The
statement of account which records the day to
day expenses incurred while running the
business have not been produced. Garments
trade involves some regular expenditures to
keep the business going. The amounts so
incurred are liable to be deducted from the
gross return which has been depicted in the
income tax return. The income tax return is
reliable document. However true income can
be ascertained after making deductions
towards transportation, storage, staff salary
and the like.

10. Upon considering these issues, the
monthly income of the deceased is assessed
at Rs.10,000/- per month by this Court.

11. In the peculiar facts of this case,
the failure of the claimant-appellant to take
specific pleadings regarding the income tax
returns was credibly explained by P.W.1Nilofar in her deposition before the court.
Admittedly the claimant had produced the
income tax returns whose authenticity
remains undisputed. Income tax returns are
a credible basis for determining income. In
the claim petition, a specific clause
regarding the income tax return was left
empty. In the column regarding the income
tax, the words "not applicable" have been
transcribed. In the wake of the preceding
discussion,
the
deficiencies
discussed
above cannot lead to any inference adverse
against the claimant. Learned tribunal erred
in law and fact on this issue.

4.(B) (i) Calculation of Conventional
Heads:

12. The amount determined under
conventional heads in the impugned award
is at variance with National Insurance
Company Ltd. v. Pranay Sethi and
others1. The conventional heads were
fixed in Pranay Sethi (supra) by holding
as under:

"54. ......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
5 All. Smt. Nilofar Vs. Smt. Sarika Arora & Ors.
201
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/- funeral expenses
should be Rs. 15,000/-, Rs. 40,000/- And
Rs. 15,000/- respectively."

13. The figure under conventional
heads determined in Pranay Sethi (supra)
shall be applicable to the facts of this case.
The award is modified accordingly.

4.(B)(ii) Future Prospects:

14. The future prospects are liable to
be calculated in accordance with the Uttar
Pradesh Motor Vehicles Rules, 19982. Rule
220A-3(i) of the Rules is relevant and is
reproduced hereunder:

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

(iii) Below 40 years of age : 50%
of the salary."

15. The UP Rules, 1998 came up for
consideration before the Supreme Court in
New India Assurance Co. Ltd. vs. Urmila
Shukla and others3. In Urmila Shukla
(supra) upon consideration of various
judgements
including
Pranay
Sethi
(supra) held:

"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 Sethi cannot be
taken as maxima. In the absence of any
governing
principle
available
in
the
statutory regime, it was only in the form of
an indication. If a statutory instrument has
devised a formula which affords better or
greater benefit, such statutory instrument
must be allowed to operate unless the
statutory instrument is otherwise found to
be invalid." (emphasis supplied)

16. The Rules of the Uttar Pradesh
Motor Vehicles Rules, 1998 were not under
consideration before the Supreme Court in
Pranay Sethi (supra) or Sarla Verma
(Smt.) and others v. Delhi Transport
Company and another4. Future prospects
in Pranay Sethi (supra) were determined
without noticing the U.P. Rules,1998. This
fact was adverted to in Urmila Shukla
(supra):

"8. It is submitted by Mr. Rao that
the judgment in Pranay Sethi does not
show that the attention of the Court was
invited to the specific rules such as Rule
3(iii) which contemplates addition of 20%
of the salary as against 15% which was
stated as a measure in Pranay Sethi. In his
submission, since the statutory instrument
has been put in place which affords more
advantageous treatment, the decision in
Pranay Sethi ought not to be considered to
202 INDIAN LAW REPORTS ALLAHABAD SERIES
limit the application of such statutory
Rule."

17. The U.P. Rules,1998 are statutory
in nature and their operation is not stymied
by Pranay Sethi (supra). The U. P. Rules,
1998 have the force of law and shall apply
with full force in appropriate cases. The
U.P. Rules, 1998 are more beneficial for the
claimants than the provisions made in
Pranay Sethi (supra) for them. The
holdings in Pranay Sethi (supra) can not
dilute the advantages conferred by U.P.
Rules, 1998 upon the eligible beneficiaries.

18. This Court finds that the claimantappellant is entitled to 50% enhancement in
wages towards future prospects, consistent
with the UP Rules, 1998. The necessary
changes in the award shall be accordingly
made.

19. In this wake, this Court finds for
the appellant-claimant on the issue of grant
of future prospects.

4(B)(iii) Multiplier:

20. The age of the deceased was 28
years at the time of death. Multiplier of 17
has been correctly applied by the learned
Tribunal and is in line with Pranay Sethi
(supra) and Sarla Verma (supra).

4(B)(iv) Interest

21. Interest of 7% and the manner of
payment does not call for interference.
However, the claimant-appellant shall not
be entitled to interest on the enhanced
income determined in this judgement.

II. Determination of Compensation
to which claimant-appellant is entitled:

22.
In
the
wake
of
preceding
discussion, the amount of compensation
awarded to the claimant-appellant is
tabulated below:

i. Date of Accident

 -14.08.2012

ii. Date of death

-14.08.2012

iii. Name of the deceased

-Shahban Ahmad

iv. Age of the deceased

 -28 years

v. Occupation of the deceased

-Garment Shop

vi. Income of the deceased

- Rs.10,000/-

vii. Name, Age and Relationship
of claimants with the deceased

Sr. No.
Name
Age
Relation
1
Smt. Nilofar
26
Wife

viii. Computation of Compensation

Sr.
No.
Heads
Amount (in Rupees)
1
Monthly Income (A)
10,000/-
2
Annual Income (B)
(A x 12 = B)
10,000/- x 12 =
1,20,000/-
3
Future Prospects (C)
40% of 1,20,000/-
= 48,000/-
4
Annual
Income
+
Future Prospects (B +
C = D)
1,20,000+ 48,000/-
=1,68,000/-
5
Deduction
towards
Personal Expenses (E)
1/3 of 1,68,000/-
=56000/-
6
Annual
Loss
of
Dependency
(D-E=F)
1,68,000-56000
=1,12,000/-
7
Multiplier (G)
17
8
Total
Loss
of
Dependency
(FxG = H)
1,12,000/- x 17
=19,04,000/-
5 All. Smt. Kamini & Ors. Vs. New India Assurance Co. Ltd., Bareilly & Ors.
203
8
Compensation (H)
19,04,000/-
9
Conventional
Heads:
(I)
(a) Loss of love and
affection
(b) Loss of consortium
(c) Loss of Estate
(d) Funeral
70,000/-
10
Total compensation
(H+ I = J)
19,74,000/-
11
Interest
7.00%

III. Conclusion and Directions:

23. The amount of compensation to
which the claimant-appellant has thus been
found entitled shall be deposited by the
corporation within three months before the
learned tribunal. Thereafter the learned
tribunal shall release the amount to the
claimant-appellant
without
delay.
The
amount already disbursed to the claimant
(if any) shall be duly adjusted.

24.
The
amount
of
Rs.25,000/-
deposited by the appellant-claimant while
instituting the appeal shall be forthwith
remitted to the learned tribunal.

25. The instant appeal is partly
allowed as indicated above.
----------
(2023) 5 ILRA 203
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2023

BEFORE

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

First Appeal From Order No. 2740 of 2006

Smt. Kamini & Ors. ...Appellants
Versus
New India Assurance Co. Ltd., Bareilly &
Ors. ...Respondents
Counsel for the Appellants:
Sri Shivendra Singh, Sri Mohd. Naushad
Siddiqui

Counsel for the Respondents:
Sri Aditya Singh Parihar, Sri Aditya Singh
Parihar

Civil Law
- Motor Accident Claim-
Impugned
award-accident
and
issue
of
negligence
not
dispute-quantum
of
compensation to be decided-deceased was
40 years-in service of U.P. Co-operative
Federation-Tribunal
assessed
income
Rs.
7000/- per month-but according to the salary
slip monthly income would be Rs. 7974assesment bad-deceased was in age bracket
of 36-40-50% of income be added-deduction
towards personal expense-1/3rd as seven
dependents-entitled for non-pecuniary head
plus 10 % rise-Rate of interest to be 7.5%
instead of 6 %..

Appeal partly allowed. (E-9)

List of Cases cited:
1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 LawSuit (SC) 1093

2. Sarla Verma & ors. Vs Delhi Transport
Corporation & anr., 2009 LawSuit (SC)

3. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 LawSuit (SC) 1093

4. Vimal Kanwar & ors. Vs Kishore Dan & ors.,
2013 (3) T.A.C. 6 (S.C.).

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

6. A.V. Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442

7. Smt. Hansaguri P. Ladhani Vs The Oriental
Insurance Company Ltd., reported in 2007(2)
GLH 291

8. Review Application No.1 of 2020 in First
Appeal From Order No.23 of 2001 (Smt.
Sudesna & ors. Vs Hari Singh & anr.)