# Smt. Pooja & Ors v. Vijay Kumar Tiwari & Ors

- **Citation:** (2023) 5 ILRA 108
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-14
- **Case number:** First Appeal From Order No. 17 of 2019
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-pooja-ors-v-vijay-kumar-tiwari-ors-50081
- **Pages:** 7

## Headnote

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-challenge to-enhancement of
claim- deceased died leaving behind his
wife
and
three
children-the
tribunal
considered
the
deceased
income
Rs.
3000/- per month in place of 16,321/- per
month and has not granted future loss of
income-The claimants are entitled to 50%
enhancement in wages towards future
prospects, consistent with the UP Rules,
1998-Total compensation would be Rs.
38,15,678/- 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)
5 All. Smt. Pooja & Ors. Vs. Vijay Kumar Tiwari & Ors.
109
List of Cases cited:

## Text

108 INDIAN LAW REPORTS ALLAHABAD SERIES
persons, however they can very well point
out the mistake if any, has been committed
by the trial court or the appellate court and
in this view of the matter this revision
cannot be thrown out at the very threshold.

6. I went through the impugned order.
As far as the fact of death of one of the
accused/appellant is concerned, it is a matter of
inquiry and in case the court comes to a
conclusion that in fact he has died the case
against him may abate. There may be cases
where the such fact of death is disputed and is
contested. In such circumstances, the court has
to proceed in a very cautious manner. If the
court cannot come to any concrete conclusion,
it may register a separate miscellaneous case
and proceed to inquire into the facts and direct
the authorities concerned to furnish evidence.
The appeal cannot be left pending just because
a collateral issue or a question of mere
procedural importance has cropped up which
may demand calling for further evidence and
may require inquiry.

7. In such peculiar circumstances it was
just not right for the appellate court to presume
that the appellant is absconding. It would have
been much better if a separate miscellaneous
case is instituted to decide upon the fact of
death of one of the appellant and to proceed
with the appeal of the rests of the appellants. It
may be made clear that if at any stage of the
proceeding the court concerned finds that
forged paper has been submitted before it, then
it will be within its power to institute an
enquiry under section 340 of Cr.P.C. or file an
F.I.R. if found fit in the circumstance of matter.

8. The impugned order is set aside and
the learned court below is directed to
separate the case of appellant Sanjay Jain
and to proceed to inquire into the fact of his
death. The appeal of the rest of the
appellants (the revisionists in this case)
shall proceed as per law.

9.
Accordingly,
this
revision
is
disposed of.
----------
(2023) 5 ILRA 108
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 17 of 2019

Smt. Pooja & Ors. ...Appellants
Versus
Vijay Kumar Tiwari & Ors. ...Respondents

Counsel for the Appellants:
Sri Prakhar Tandon

Counsel for the Respondents:
Sri Anubhav Sinha

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-challenge to-enhancement of
claim- deceased died leaving behind his
wife
and
three
children-the
tribunal
considered
the
deceased
income
Rs.
3000/- per month in place of 16,321/- per
month and has not granted future loss of
income-The claimants are entitled to 50%
enhancement in wages towards future
prospects, consistent with the UP Rules,
1998-Total compensation would be Rs.
38,15,678/- 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)
5 All. Smt. Pooja & Ors. Vs. Vijay Kumar Tiwari & Ors.
109
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.)

I. INTRODUCTION

1. The instant appeal arises out of an
award made by the learned Motor Accident
Claims Tribunal/Additional District Judge,
Kanpur1 dated 13.09.2018 in Motor
Accident Claim Petition No. 994 of 2013
(Smt. Pooja Shukla and others Vs. Vinay
Kumar Tiwari and others) by partly
allowing the claim of the claimants.

II. Case of the claimants and
respondents before the learned tribunal:

2. Briefly the case of the claimants before
the learned tribunal was that the deceased died
of injuries sustained in an accident which
occurred on 14.08.2013, and was caused by the
rash and negligent driving of the driver of JSA
Loader bearing Registration No. UP 78 CN
7323. The offending vehicle was insured by the
respondent no. 2-United India Insurance
Company
Ltd.
The
claimants
are
the
dependants on the deceased Amit Shukla. The
deceased
was
running
a
unit
which
manufactures snacks. The deceased was 30
years of age at the time of his death.

III. Compensation awarded by the
learned tribunal:

3. The
learned
tribunal
in
the
impugned judgement dated 13.09.2018
awarded compensation which is depicted in
the tabulated form hereunder:

Sr.No.
Heads
Amount Awarded by the
tribunal
1.
Monthly Income
3000
2.
Annual Income
36,000/-
3.
Future prospects
25% of 36000= 9,000/-
4.
Annual Income +
Future Prospects
36000+9000=45000/-
5.
Deduction towards
personal expenses
1/3 of 45000 =15000/-
6.
Annual
loss
of
dependancy
45000-15000=30000/-
7.
Multiplier
17
8.
Total
loss
of
dependancy
30,000x17= 5,10,000/-
9.
Conventional
Heads
(a)
Loss
of
consortium
(b) loss of Estate
(c)
Funeral
Expenses
55,000
10.
 Total
compensation

5,10,000+55000
=
5,65,000/-
11.
Interest

7%

4. The claimants seek enhancement of
compensation by means of the instant
appeal.

IV. Arguments of learned counsels:

5. Shri Prakhar Tandon, learned
counsel for the appellants assails the order
by contending that the learned tribunal led
into error by neglecting to consider the
income tax returns which reflects the true
income of the deceased. Secondly, the
personal
expenses
were
incorrectly
deducted. The learned trial court also erred
in law in awarding future prospects and
conventional heads which is in teeth of the
110 INDIAN LAW REPORTS ALLAHABAD SERIES
law laid by Supreme Court in New India
Assurance Co. Ltd. vs. Urmila Shukla
and others2 and National Insurance
Company Ltd. vs. Pranay Sethi and
others3.

6.
The
deceased
had
four
dependants. The deduction of 1/3rd made
towards personal expenses made by the
learned tribunal was excessive. The
amount which is liable to be deduction
towards
personal
expenses
of
the
deceased is 1/4th. The claimants were
entitled to a higher amount.

7. Shri Anubhav Sinha, learned
counsel
for
the
Insurance
Company
contends that the award was just and
lawful. However, he fairly contends that the
award of future prospects was at variance
in judgment laid by the Supreme Court in
Pranay Sethi (surpa). Similarly, the
personal expenses could not be disputed.

V. Issues for Consideration:

8. After advancing their arguments,
learned counsels for the respective parties
agree that only the following question falls
for consideration in the appeal:

Whether the learned tribunal
while
determining
the
compensation
lawfully computed the amounts under these
heads: income, future prospects, deduction,
application of multiplier, conventional
heads and interest?

VI. Number of dependants and
deduction towards expenses:

9. The claimants-respondents claim
the following persons as dependants on the
deceased:
Sr
.
N
o.
Name
Age
Relation
1.
Smt. Pooja Shukla
33
Wife
2.
Smt. Madhuri Shukl
63
Mother
3.
Sri Om Prakash Shukl
68
Father
4.
Km. Shreya Shukla
13
Daughter

10.
The
deceased
had
four
dependants(father, mother, wife and one
minor children). The deduction of 1/3rd
made towards personal expenses by the
learned tribunal was excessive. The amount
which is liable to be deduction towards
personal expenses of the deceased is 1/4th.

11. The determination is fortified by
authorities in point. While deciding the
issue of deduction of personal expenses, the
Supreme Court in Sarla Verma (Smt) and
others Vs Delhi Transport Company and
another4 held:

'

"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 Chandra [(1996) 4
SCC 362] , the general practice is to apply
standardised
deductions.
Having
considered several subsequent decisions of
this Court, we are of the view that where
the deceased was married, the deduction
towards personal and living expenses of the
deceased, should be one-third (1/3rd)
where the number of dependent family
members is 2 to 3, one-fourth (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."

12. Sarla Verma (supra) was later
followed
with
approval
in
National
5 All. Smt. Pooja & Ors. Vs. Vijay Kumar Tiwari & Ors.
111
Insurance Company Limited Vs. Pranay
Sethi and others5 (See Pr. 37).

VII. Issue of computation of the
compensation under various heads:

a. Salary of the deceased:

13. The learned tribunal was led into
error by failing to consider the income tax
returns filed by the claimants to support
their claim. It is established that the
deceased was a small skilled entrepreneur.
He filed his income tax returns regularly.
Income tax returns filed after his death was
fully credible and the same was filed by the
legal representatives/claimants in discharge
of their obligation under Section 159 of the
Income Tax Act. The relevant provision is
extracted hereunder:

"Legal representatives

159. (1) Where a person dies, his
legal representative shall be liable to pay
any sum which the deceased would have
been liable to pay if he had not died, in the
like manner and to the same extent as the
deceased."

14. Perusal of the income tax returns
shows that such income tax returns was of
credible nature and reflected true income of
the deceased. The income of the deceased
is quantified at Rs. 1, 95, 855/- per annum
as reflected in the income tax returns.

15. Learned tribunal was erred in law
by discarding the income tax returns for no
good cause.

b. Future Prospects:

16. The future prospects are liable to
be calculated in accordance with the Uttar
Pradesh Motor Vehicles Rules, 19986. Rule
220A-3(iii) 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:

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

17. The UP Rules, 1998 came up for
consideration before the Supreme Court in
New India Assurance Co. Ltd. vs. Urmila
Shukla and others7. In Urmila Shukla
(supra) upon consideration of various
judgements including National Insurance
Company Ltd. Vs. Pranay Sethi and
others8 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)
112 INDIAN LAW REPORTS ALLAHABAD SERIES

18. 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 Vs. Delhi Transport
Company and another9. 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 limit the
application of such statutory Rule."

19. 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.

20. In this wake, this Court finds that
the claimants/respondents are entitled to
50% enhancement in wages under the head
of future prospects as contemplated in the
U.P. Rules, 1998. The necessary changes in
the award shall be accordingly made.

c. Multiplier:

21. The age of the deceased was 30
years at the time of the accident. The
applicable multiplier as per Sarla Verma
(Smt) and others Vs. Delhi Transport
Company and another10 read with
Pranay Sethi (supra) is 17.

d.
Calculation
of
Conventional
Heads:

22. The amount determined under
conventional heads in the impugned
award is at variance with Pranay Sethi
(supra). 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 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."
5 All. Smt. Pooja & Ors. Vs. Vijay Kumar Tiwari & Ors.
113

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

e. Interest:

24. Interest of 7% and the manner of
payment decided by the learned tribunal is
just and lawful and does not call for
interference.

VIII.
Determination
of
Compensation
to
which
claimants-
respondents are entitled:

25.
In
wake
of
the
preceding
discussion, the amount of compensation to
which the claimants are entitled and are
hereby awarded, is tabulated hereunder:

i. Date of Accident -14.08.2013

ii. Name of Deceased - Amit Shukla

iii. Age of the deceased - 30 years

iv. Occupation of the Deceased
 -
Small entrepreneur

v. Income of the deceased - 1,95,855
per annum

vi. Name, Age and Relationship of
Claimants with the deceased:

Sr. No.
Name
Age
Relation
1.
Smt.
Pooja
Shukla

33
Wife
2.
Smt.
Madhuri
Shukl

63
Mother
3.
Sri Om Prakash
Shukl

68
Father
4.
Km.
Shreya
Shukla
13
Daughter

vii. Computation of Compensation

Sr. No.
Heads
Amount (in Rupees)
1.
Monthly
Income (A)
Rs. 16,321/-
2.
Annual Income
(B)
(A x 12 = B)
Rs. 1,95,852/-
3.
Future
Prospects (C)
50% of 1,95,852/-
= 97,926/-
4.
Annual Income
+
Future
Prospects
(B+C=D)
1,95,852+ 97,926/-
= 2,93,778/-
5.
Deduction
towards
personal
expenses
(E)
(1/4 of D)

1⁄4 of 2,93,778/-

= 73,444/-
6.
Annual Loss of
dependancy (F)
(D-E = F)
2,93,778-73,444/-
= 2,20,334/-
7.
Multiplier (G)
17
8.
Total
loss
of
dependancy
(F x G)
2,20,334 x 17
= 37,45,678/-
9.
Conventional
Heads:
(a)
Loss
of
consortium
(b)
Loss
of
Estate
(c)
Funeral
Expenses
70,000/-
10.
Total
compensation
38,15,678/-
11.
Interest
7%

IX. Conclusions & Directions:

26. In view of the above, the appeal is
partly allowed.

27. The amount of compensation to
which the claimants have been awarded
114 INDIAN LAW REPORTS ALLAHABAD SERIES
shall be deposited by the Insurance
Company within a period of three months
before the learned tribunal. Thereafter the
learned tribunal shall release the amount to
the claimants without delay. The amount
already disbursed to the claimants (if any)
shall be adjusted.
----------
(2023) 5 ILRA 114
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2023

BEFORE

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

First Appeal From Order No. 70 of 2019

Ajeet Rajbhar ...Appellant
Versus
Smt. Badami Devi & Anr. ...Respondents

Counsel for the Appellant:
Sri
Akhilesh
Chandra
Srivastava,
Sri
Ramesh Chandra Pathak, Sri Aditya Singh
Parihar

Counsel for the Respondents:
Sri Vijay Kumar Dubey, Sri Manish Kumar
Pandey

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-challenge to-Whether the
owner of a motor vehicle, who hands it
over for repairs to a mechanic, would be
liable in damages to third party sustaining
injury on account of use of the motor
vehicle by the mechanic in a public place,
for the purpose of carrying out repairs-if
the owner in fact drives an uninsured
vehicle in a public place or causes it to be
driven through his servant or agent,
injuring a third party, the owner would be
liable to compensate the third party for
the injury or loss sustained-when the
vehicle is entrusted to an independent
contractor, like a mechanic, for the
purpose of service or repairs, it is held by
the mechanic or the repairer under a
contact of bailment, it is not held as a
servant or an agent of the ownerTherefore, for any injury or loss to a third
party, arising out of the use of a motor
vehicle in a public place by the mechanic
or the repairer, while he holds a motor
vehicle under a contract of bailment, the
bailee would be liable in damages or
compensation to the third party, it would
not be the owner.(Para 1 to 53)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Naveen Kumar Vs Vijay Kumar & ors. (2018)
3 SCC 1

2. Sitaram Motilal Kalal Vs Santanuprasad
Jaishankar Bhatt (1966) AIR SC 1697

3. Minu B. Mehta & anr. Vs Balkrishna
Ramchandra Nayan & anr. (1977) 2 SCC 441

4. Pushpabai Purshottam Udeshi & ors. Vs Ranjit
Ginning & Pressing Co. (P) Ltd. & anr. (1977) 2
SCC 745

5. K. Anandan Vs Ammalu Gomathi & anr.
(1988) AIR Ker 117

6. Ramu Tolaram Vs Amichand Hansraj Gupta &
ors. (1988) AIR Bom 304

7. The Motor & Gen. Finance (India) Ltd. Vs
Mary Mony & Or (1990) SCC OnLine Ker 229

8. Devinder Singh Brar Vs Mangal Singh & ors.
(1981) AIR P&H 53

9. Guru Govekar Vs Filomena F. Lobo Miss
(1988) 3 SCC 1

10. Alias Vs E.M. Paul & ors. (2004) AIR Ker 214

11. Eagle Brand Soapnut Co. reptd. by its
Partner
No.
15,
Peria
Kammala
Street,Tiruchirapalli-8 Vs Rangasamy & anr.
(1997) SCC OnLine Mad 67

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