# Smt. Premwati and another v. Shiv Shanker and 2 others

- **Citation:** (2011) 1 ILRA 276
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-02-12
- **Bench:** Devi Prasad Singh, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-premwati-and-another-v-shiv-shanker-and-2-others-41866
- **Pages:** 4

## Headnote

Motor Vehicle Act, 1988-Section-166decreased 21 years old girl-no denial of
accident-tribunal
award
Rs.
1
Lac
towards
Compensation-under
second
schedule-noticed monthly income fixed
Rs. 3000/- per month-after deduction of
1/3
her
annual
income
would
be
24,000/-if 17 multiplier given-amount
should
come
Rs.
408000/-person
includes
boy
or
girl-without
any
discrimination appeal for enhancement
allowed accordingly.

Held: Para 10

In view of above, we are of the view that
even notional income should not be less
than Rs. 3000/- per month. Accordingly,
1 All] Smt. Premwati and another V. Shiv Shanker and others
277
in case the income of deceased is
assessed at the rate of Rs. 3,000/- per
month and 1/3rd is deducted in lieu of
personal expenses, the net income shall
be Rs. 2000/- per month, i.e., Rs.
24,000/- per year. Since the deceased
was aged about 21 years, the multiplier
of 17 should be applied while assessing
the income. The total compensation
should be come to Rs. 4,08,000/-, loss of
estate Rs. 5,000/- and funeral expenses
Rs. 2,500/-. The total compensation now
is 4,15,500/-. Interest awarded by the
Tribunal is also too less to approve and
enhanced to 8%.
Case law discussed:
2008(3) ALJ 612; 2010(28) LCD 1786.

## Text

276 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
and Another AIR 1996 SC 715 has held
as follows:

"A democratic Government does not
mean a lax Government. The rules of
procedure and/or principles of natural
justice are not mean to enable the guilty
to delay and defeat the just retribution.
The wheel of justice may appear to grind
slowly but it is duty of all of us to ensure
that they do grind steadily and grind well
and truly. The justice system cannot be
allowed to become soft, supine and
spineless."

40. In view of above discussion and
considering the fact that genuine, valid
and just claim of petitioner remained
unattended before the respondents for
almost two years and more, we find it a fit
case where respondents must be saddled
with responsibility of payment of interest
on the aforesaid amount and also to pay
exemplary cost to petitioner for causing
harassment to him to an extent of
compelling him to invoke extraordinary
jurisdiction of this Court by filing writ
petition traveling all along in this old age
from Delhi to Lucknow.

41. In the above facts and
circumstances, writ petition is disposed of
directing the respondents to pay interest
on the amount of medical reimbursement
paid to the petitioner pursuant to order
dated 12.2.2009, at the rate of 10% p.a.
from the date of recommendation dated
21.2.2007 till actual payment.

42. Respondents shall also pay cost
to petitioner quantified to Rs. 50,000/-
(Rupees fifty thousand).

43. The aforesaid amounts shall be
determined and paid to petitioner within
two months from the date of production
of a certified copy of this order.

44. The aforesaid amount, at the first
instance, shall be paid by respondent no.
1. However, respondent No.1 shall be at
liberty to recover above amount of
interest and cost paid to petitioner under
this order from the official(s) concerned,
who is/are found responsible for extra
ordinary delay in payment of medical
reimbursement to the petitioner, after such
inquiry as is required in law.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.03.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
HON'BLE SUDHIR AGARWAL, J.

First appeal from order no. - 699 of 2003

Smt. Premwati and another ...Petitioner
Versus
Shiv Shanker and 2 others ...Respondent

Counsel for the Petitioner:
Sri A.K. Katiyar

Motor Vehicle Act, 1988-Section-166decreased 21 years old girl-no denial of
accident-tribunal
award
Rs.
1
Lac
towards
Compensation-under
second
schedule-noticed monthly income fixed
Rs. 3000/- per month-after deduction of
1/3
her
annual
income
would
be
24,000/-if 17 multiplier given-amount
should
come
Rs.
408000/-person
includes
boy
or
girl-without
any
discrimination appeal for enhancement
allowed accordingly.

Held: Para 10

In view of above, we are of the view that
even notional income should not be less
than Rs. 3000/- per month. Accordingly,
1 All] Smt. Premwati and another V. Shiv Shanker and others
277
in case the income of deceased is
assessed at the rate of Rs. 3,000/- per
month and 1/3rd is deducted in lieu of
personal expenses, the net income shall
be Rs. 2000/- per month, i.e., Rs.
24,000/- per year. Since the deceased
was aged about 21 years, the multiplier
of 17 should be applied while assessing
the income. The total compensation
should be come to Rs. 4,08,000/-, loss of
estate Rs. 5,000/- and funeral expenses
Rs. 2,500/-. The total compensation now
is 4,15,500/-. Interest awarded by the
Tribunal is also too less to approve and
enhanced to 8%.
Case law discussed:
2008(3) ALJ 612; 2010(28) LCD 1786.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard learned counsel for the
appellant as well as learned counsel for
the respondents and perused the record.

2. This appeal under Section 173 of
Motor Vehicle Act, 1988 is against the
judgment and award dated 03.09.2003
passed by Motor Accident Compensation
Tribunal/Additional District Judge of
Court No. 2 in Motor Accident Case No.
193 of 2002.

3. One Km. Vijay Laxmi, aged
about 21 years old happens to be daughter
and only child of claimant-appellants
suffered an accident from Vehicle No.
U.P. 30 A 5139 on 05.05.2002. When Km
Vijay Laxmi was coming to her residence
at Village Khemipur and crossing the road
a Jeep No. UP 30 A 5139 driven rashly
and negligently hit the girl and in
consequence thereof she suffered and
succumbed
to
the
injury.
A
first
information report was lodged with regard
to accident in question. The claimantappellants
approached
the
Tribunal
claiming compensation under Section 166
of Motor Vehicles Act to the extent of Rs.
10,00000/-(ten
lacks).
The
Tribunal
framed issues with regard to accident,
rash and negligent driving, driving licence
etc. and has recorded a finding that the
accident was occurred from the Jeep in
question when the deceased was crossing
road to reach her house. There appears to
have no dispute with regard to accident in
question.
The
respondent-Insurance
Company has also not filed any cross
appeal challenging the finding recorded
by Tribunal.

4. The solitary question involved in
the present case is with regard to
enhancement of compensation. Though
the tribunal has recorded a finding that in
case the sole child of claimant-appellants
would have survive she would have been
helpful for them during passage of time.
However,
Tribunal
has
granted
compensation to the tune of Rs. 60,000/-
with interest at the rate of 5%. It appears
that the Tribunal has not taken note with
regard to multiplier given in Second
Schedule of Motor Vehicle Act. Though
the multiplier given in Second Schedule is
with regard to the cases filed under
Section 163 A of the Motor Vehicles Act
and it is always open to Tribunal to award
just and proper compensation in terms of
provision contained in Sections 166 read
with 168 of Motor Vehicles Act but as a
general practice throughout the country in
pursuance to various pronouncement of
Hon'ble Apex Court ordinarily, the
multiplier given in Second Schedule of
Motor Vehicles Act is followed, unless
there is some different setup showing
entitlement for higher compensation to
meet the requirement of justness is
established. Accordingly we are of the
view that Tribunal should have applied
the multiplier keeping the age of deceased
278 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
which is 21 years old in terms of Schedule
II of the Motor Vehicles Act.

5. One of the argument advanced by
learned counsel for the respondents is that
being a girl no compensation should have
been given in terms of multiplier and the
fixed amount given by Tribunal is just
and proper.

6. The argument advanced by
learned counsel for the respondents and
the finding recorded by Tribunal seems to
be not sustainable. Whether the deceased,
a 21 years old, was boy or girl, so far as
parents are concerned for them both have
equal importance. It may be noted that if a
female child obtain same love and
affection and serve their parents in same
manner as a male child. We do not find
any difference between made and female
child. It is not necessary to give a
reference to number of ladies who have
served their parents up to mark and even
better than the male child.

7. In view of Article 15 of the
Constitution of India, there cannot be
discrimination on the ground of religion,
race, caste, sex or, place of birth. Under
Section 11 of the Indian Penal Code, the
word, "person" includes, male and female
both.
According
to
Sout's
Judicial
Dictionary of Word and Phrases, [7th
Edn., on page 209], the word, "person"
includes a corporation as well as a natural
person, means male and female both.
Section 163-A or Section 166 of Motor
Vehicles Act deals with the payment of
compensation in accidental matters. Any
person who has sustained injury or the
legal heirs, successors or dependents of a
person who suffered accidental death may
claim compensation in accordance with
law under the Motor Vehicles Act.
Whether it is the death of a male child or
female child or a boy or a girl or a grown
up lady or man, shall not make any
difference.
Awarding
of
lesser
compensation in the event of death of a
girl,
shall
amount
to
gender
discrimination which is constitutionally
prohibited.

8. Moreover, in the present case, it is
pleaded by the appellant before the
Tribunal that the monthly earning of
deceased Km. Vijay Laxmi was about
Rs.3,500.00 per month being engaged in
embroidery
and
other
works.
The
payment of fixed amount of Rs.60,000.00,
seems to be not correct approach.

9. Accordingly due weight should
have been given by Tribunal while
awarding compensation even if the
deceased is a girl without any gender
discrimination. In the present case the
deceased girl is of 21 years old died
because of rash and negligent driving of
the Jeep in question. For a person of 21
years
age
under
Second
Schedule
multiplier of 17 should have been applied
and in case the Tribunal has failed to
assess the actual income, the notional
income should be assessed for the purpose
of payment of compensation. Though
under the Second Schedule notional
income has been given as Rs. 15000/- per
year but Supreme Court in Laxmi Devi
and others Vs. Mohammad Tabbar and
another, 2008(3) ALJ 612 held that
Second Schedule of Motor Vehicles Act
requires modification since after lapse of
time it has lost its sanctity. This aspect of
the matter has been considered by a
Division Bench of this Court in Guddi
Singh and others Vs. Baboo and others,
2010(28) LCD 1786 and in para 15 the
Court
held
as
under:
1 All] Smt. Ganga Chauhan V. State of U.P. and another
279

"15. In the instant case, keeping in
view the peculiar facts and circumstances
of the case, the Tribunal has awarded a
lump-sum compensation of Rs. 50,000/-
without applying the multiplier and
without taking into consideration the
other factors, like age etc. The deceased
Sri Nanhe Singh was aged about 40 years.
Since no proof of income was submitted,
the notional income will have to be taken
as per the ratio laid down in the case of
Laxmi Devi and others v. Mohammad
Tabbar and another; 2008(2) TAC 394
(SC) where it was observed that the
minimum income even notionally should
not be less than Rs. 3000/- per month.
Accordingly, in case the income of the
deceased is assessed at the rate of Rs.
3000/- per month and 1/3rd is deducted in
lieu of personal expenses, the net income
shall be Rs. 2000/- per month i.e. Rs.
24,000/- per year. Since the deceased was
aged about 40 years, multiplier of 15 will
apply under Schedule II of Motor Vehicles
Act. Thus, the compensation will come to
Rs. 3,60,000/-. In addition, the claimants
are also entitled for Rs. 2000/- as funeral
expenses; Rs. 2500/- for loss of Estate and
Rs. 5000/- as loss of consortium. Thus,
total
compensation
comes
to
Rs.
3,69,500/- (Three lacs sixty nine thousand
and five hundred)."

10. In view of above, we are of the
view that even notional income should not
be less than Rs. 3000/- per month.
Accordingly, in case the income of
deceased is assessed at the rate of Rs.
3,000/- per month and 1/3rd is deducted
in lieu of personal expenses, the net
income shall be Rs. 2000/- per month, i.e.,
Rs. 24,000/- per year. Since the deceased
was aged about 21 years, the multiplier of
17 should be applied while assessing the
income. The total compensation should be
come to Rs. 4,08,000/-, loss of estate Rs.
5,000/- and funeral expenses Rs. 2,500/-.
The total compensation now is 4,15,500/-.
Interest awarded by the Tribunal is also
too less to approve and enhanced to 8%.

11. In view of above, we are of the
view that appellants shall be entitled for
compensation to the tune of Rs. 4,15,5000/-.
The impugned judgment and award dated
03.09.2003 passed by Tribunal stands
modified accordingly. The appeal is
accordingly allowed with the finding that
appellants
shall
be
entitled
for
compensation to the tune of Rs. 4,15,500/-
(four lacs, fifteen thousand, fine hundred
only), as calculated above, with simple
interest at the rate of 8% per annum. The
aforesaid amount shall be deposited in the
Tribunal within two months from today and
Tribunal shall proceed in terms of modified
word (supra) expeditiously. The amount
already paid to appellants shall be adjusted
from the compensation enhanced by this
Court. Appeal allowed accordingly. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.03.2011

BEFORE
THE HON'BLE VIRENDRA KUMAR DIXIT, J.

U/S 482/378/407 No. - 919 of 2011

Smt. Ganga Chauhan @ Guga Chauhan
and another

 ...Petitioner
Versus
State Of U.P. and another ...Respondent

Counsel for the Petitioner:
Rajiva Dubey
Mahendra Pratap Singh

Counsel for the Respondent:
Govt. Advocate