# Smt. Ranjan Singh & Ors v. Shri Abbu Saeed & Ors

- **Citation:** (2019) 4 ILRA 510
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-11
- **Case number:** FAFO No. 604 of 2011
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ranjan-singh-ors-v-shri-abbu-saeed-ors-45008
- **Pages:** 15

## Headnote

Sri
Anil
Kumar
Srivastava,
Mohd.
Shamshad Khan, Sri M.S. Khan

A. Motor Accident claim - Motor Vehicles
Act (59 of 1988) - Sections 166 & 168 -
Compensation
-
Future
Prospects
-
Deceased in a permanent job - aged about
38 years - addition of 50% of actual salary
to the income of the deceased towards
future prospects (Para 25)

B. Motor Vehicles Act (59 of 1988)
Section 168 - Compensation - Tax
Deduction - Tribunal incorrectly made
income
tax
deduction
4 All. Smt. Ranjan Singh & Ors. Vs. Shri Abbu Saeed & Ors.
511
Held - Deceased was a government servant
thus as per income tax laws it is incumbent for
the employer to deduct tax prior to the
payment of the salary - thus after deduction of
tax at source there can be no scope of further
deduction - even otherwise the deceased
would be in the non- taxable bracket -
Tribunal erroneously held that by adding for
future prospect the income comes in the
taxable bracket - but it failed to consider that
with passage of time the exemption limits of
income tax also increase from time to time -
20% deduction made towards tax was
unwarranted (Para 21, 22)

C. Motor Vehicles Act (59 of 1988) Section
168 - Compensation - Non Pecuniary
damages
-
loss
of
consortium
-
"consortium"
encompasses
„spousal
consortium‟, „parental consortium‟, and
„filial consortium‟ - grant of non-pecuniary
damages under the head of loss of
consortium is available to the wife,
children, parent each

Held - Conventional head of consortium: (a)
Spouse: Rs 40,000/- (b) Parental: Rs 40,000/-
(c) Filial: Rs 40,000/- (d) Funeral expenses: Rs
15,000/- (e) Loss of estate: Rs 15,000/- (Para
27 & 28)

First Appeal from Order partially allowed.
 (E-5)

List of cases cited: -

## Text

_Characters 0–39,809 of 48,294. This is a partial read: ask again with offset=39809 for what follows._

510 INDIAN LAW REPORTS ALLAHABAD SERIES
shall go to render assistance to the court to
appreciate the facts in the right and broader
perspective, if it grants at least one further
opportunity to cross-examine the wife.

7. Without going further into the
matter, this Court deems it appropriate to
direct that the revisionist shall move again
an application seeking the recall of
witness Bandana, whenever the case is
taken up again after mediation process. If
such an application is moved on behalf of
the revisionist, the court below will
proceed to summon aforesaid witness
Bandana and provide opportunity to the
husband-revisionist to cross-examine her.

8. The revisionist is also directed to
deposit
Rs.5000/-
as
a
matter
of
cost/expenses and this money shall be
given to the witness Bandana whenever
she appears for the purpose of crossexamination.

9. It is made clear that whenever
witness Bandana appears for crossexamination she shall be cross-examined
on that very day and no further
adjournment on behalf of revisionist shall
be sought or granted. If the opportunity of
cross-examination shall not be availed on
the first date for the reason of non
availability of the counsel or for any
reason which may be attributable to the
revisionist, her evidence shall stand
closed and the concerned court below
shall
thereafter
proceed
further
in
accordance with law.

10. As it appears from the impugned
order that the matter has already been
referred to the Mediation Centre, it is also
being clarified that this order shall come
into application only if the result of the
mediation is negative and the litigation
continues. But if the matter gets settled, it
goes without saying that there would be
no need either to move any such
application or to recall the witness for the
purpose of cross-examination.

11. The revision stands allowed in
aforesaid terms and the impugned order
so far as it relates to the refusal of Court
to summon the aforesaid witness for
cross-examination stands set aside.
----------
(2019)12 ILR A510

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.11.2019

BEFORE
THE HON'BLE JASPREET SINGH, J.

FAFO No. 604 of 2011
With
FAFO No. 433 of 2011

Smt. Ranjan Singh & Ors. ...Appellants
Versus
Shri Abbu Saeed & Ors. ...Respondents

Counsel for the Appellants:
Sri Belendu Shekhar, Sri Aanand Mohan,
Sri Anil Kr. Srivastava

Counsel for the Respondents:
Sri
Anil
Kumar
Srivastava,
Mohd.
Shamshad Khan, Sri M.S. Khan

A. Motor Accident claim - Motor Vehicles
Act (59 of 1988) - Sections 166 & 168 -
Compensation
-
Future
Prospects
-
Deceased in a permanent job - aged about
38 years - addition of 50% of actual salary
to the income of the deceased towards
future prospects (Para 25)

B. Motor Vehicles Act (59 of 1988)
Section 168 - Compensation - Tax
Deduction - Tribunal incorrectly made
income
tax
deduction
4 All. Smt. Ranjan Singh & Ors. Vs. Shri Abbu Saeed & Ors.
511
Held - Deceased was a government servant
thus as per income tax laws it is incumbent for
the employer to deduct tax prior to the
payment of the salary - thus after deduction of
tax at source there can be no scope of further
deduction - even otherwise the deceased
would be in the non- taxable bracket -
Tribunal erroneously held that by adding for
future prospect the income comes in the
taxable bracket - but it failed to consider that
with passage of time the exemption limits of
income tax also increase from time to time -
20% deduction made towards tax was
unwarranted (Para 21, 22)

C. Motor Vehicles Act (59 of 1988) Section
168 - Compensation - Non Pecuniary
damages
-
loss
of
consortium
-
"consortium"
encompasses
„spousal
consortium‟, „parental consortium‟, and
„filial consortium‟ - grant of non-pecuniary
damages under the head of loss of
consortium is available to the wife,
children, parent each

Held - Conventional head of consortium: (a)
Spouse: Rs 40,000/- (b) Parental: Rs 40,000/-
(c) Filial: Rs 40,000/- (d) Funeral expenses: Rs
15,000/- (e) Loss of estate: Rs 15,000/- (Para
27 & 28)

First Appeal from Order partially allowed.
 (E-5)

List of cases cited: -

1. Sarla Verma & Ors Vs Delhi Transport
Corporation & anothers (2009) 6 SCC 121

2. National Insurance Company Limited Vs
Pranay Sethi (2017) 16 SCC 680

3.
Manasavi
Jain
Vs
Delhi
Transport
Corporation (2014) 13 SCC 22

4. Vimal Kanwar & Others Vs Kishore Dan &
others (2013) 7 SCC 476

5. Magma General Insurance Co. Ltd vs Nanu
Ram 2018 SCC Online SC 1546

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Shri Prakash Chandra
learned counsel for claimant in FAFO No.
604 of 2011 and Shri Anil Kumar
Srivastava learned counsel for appellant
in FAFO No. 433 of 2011.

2. These connected two FAFO arise
out of the same accident. The Tribunal
has made its award dated 05.03.2011 and
has awarded a sum of Rs 15,62,000/- in
favour of the claimant. Being aggrieved
against the same the claimants have
preferred an appeal for enhancement
which is registered as FAFO No. 604 of
2011 whereas the insurance company
being aggrieved against the aforesaid
award has preferred the appeal bearing
number
FAFO
No.
433
of
2011.
Accordingly both the appeals were
clubbed and have been heard together.

3. Briefly the facts giving rise to present
appeals are that on 06.12.2008 at around 8:00
AM, the deceased, Amitabh Singh was riding
his motorcycle bearing number UP 92 E 8150
and was returning from Hindustan Bio Energy
Limited towards his residence and as he had
reached Kanhat Tarun Majra Pyarepur Bahad,
PS Harchandpur, at the relevant time, a truck
bearing number UP 32 T 3490 which was
coming from opposite direction and was being
driven rashly and negligently came on wrong
side of the road and hit the motorcycle, as a
result, the deceased Amitabh Singh received
grievous injuries and died on the spot. The
FIR in respect of the aforesaid incident was
lodged on the same day. It was further pleaded
that the deceased was a pharmacist and was in
service in the Department of Prison posted at
Kanpur Dehat and was earning Rs. 16,040/-
per month.

4. It is with aforesaid averments that
the Claim Petition no. 21 of 2009 was
filed before the Motor Accident Claims
512 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribunal/Additional District Judge, Court
No. 1 Lucknow. The owner of truck Shri
Abu Saed filed his written statement. The
defense taken by the owner was that the
truck bearing number UP 32 T 3490 was
being driven at a very safe and controlled
speed. It was further pleaded that it was
actually the motorcyclist who was coming
at a high speed from opposite direction
and was driving rashly and negligently
and despite the truck driver having taken
all possible precautions i.e. using the horn
as well as applying brakes to slow the
speed, however, the motorcycle was at
such a high speed that it came and dashed
the backside of truck and overturned due
to
which
the
person
driving
the
motorcycle suffered injuries and died and
thus the accident was on account of the
negligence of the motorcyclist.

5. It was alternatively pleaded that
even otherwise it would be a case of
contributory negligence and
it
was
pleaded that the truck was duly insured
with the United India Insurance Company
Ltd, and the driver also had a valid and
effective
driving
license
and
the
registration papers were also complete,
thus any award was liable to be
indemnified by the Insurance Company.

6. The insurance company also filed
its separate written statement and in para
12 it took a plea that the truck in question
was
not
being
driven
rashly
and
negligently and also pleaded that the
accident happened on account of rash and
negligent driving of the motorcyclist.

7. It was in view of the aforesaid
pleadings that the Tribunal framed five
issues and the claimants examined Shri
Ambreshwar Singh (the brother of the
deceased) as the witness. Whereas no
witness in shape of the truck driver was
examined by the owner. The tribunal
while considering the evidence, both oral
and documentary, found that the accident
had occurred on account of rash and
negligent driving of the truck since PW-2
was an eyewitness and despite his cross
examination there was no discrepancy or
contradiction in his testimony and it cast
no doubt on the version and narration of
the accident. The Tribunal also opined
that the truck in question was duly insured
with the insurance company and its driver
had a valid and effective driving license.
The
question
regarding
contributory
negligence was also considered along
with issue number 1 and the tribunal did
not find any favour with the plea raised by
the opposite parties coupled with the fact
that site plan of the accident was also
brought on record which clearly indicated
that the truck had swerved on wrong side
of the road and hit the motorcyclist and as
such it could not be found that the
motorcyclist had contributed to the
aforesaid accident.

7. While considering the quantum,
the Tribunal found that the deceased was
working in Department of Prison and his
salary certificate was also brought on
record. His age was determined to be 38
years. However while considering the
salary the Tribunal has taken the same to
be Rs 15,000/- per month and thereafter
deductions of income tax has been made.
The tribunal has also allowed future
prospects @30%. The Tribunal also held
that since the wife of the deceased was
also an earning member therefore in such
circumstances it made a deduction of 50%
towards personal expenditure and as such
a total sum of Rs 15,62,000/- was
awarded which included the sum of Rs
2,500/- towards loss of estate, Rs 2,000/-
4 All. Smt. Ranjan Singh & Ors. Vs. Shri Abbu Saeed & Ors.
513
towards funeral expenses and Rs 5,000/-
towards loss of life partner. Thus a total
sum of Rs 15,62,000/- along with 6%
interest has been awarded by means of
award dated 05.03.2011. It is this award
which has been assailed by the appellants.

8. First this Court takes up the plea
raised by Shri Anil Kumar Srivastava,
learned counsel appearing for insurance
company in FAFO no. 433 of 2011. The
primary submission of learned counsel for
appellant is that the tribunal had erred in
failing to hold that the alleged accident
was not solely on account of rash and
negligent driving of the truck driver. It is
further submitted that according to the
version of the claimant it has been
indicated that soon after the accident
another vehicle i.e. a Santro car also came
and dashed against the truck therefore it
could not be ruled out regarding the
involvement of aforesaid Santro car. It is
further been urged that as per newspaper
cutting, a copy of which has been annexed
as Annexure No. 9 with the affidavit in
support the application for interim relief
filed before this Court, which reports that
on account of dense fog the accident
occurred wherein the deceased expired
and on the strength of the aforesaid
newspaper cutting it has been urged that
since the circumstance which indicate that
there was dense fog and on account of the
same the accident occurred and since the
truck
driver
was
not
examined
consequently the finding returned on issue
number 1 and 3 is not based on cogent
appreciation of evidence.

9. Learned counsel for the insurance
company has further urged that initially
the insurance company had made an
application under section 170 of the
Motor Vehicles Act which was rejected
by the Tribunal by means of order dated
15.09.2010.
However
later
another
application under Section 170 of the Act
1988 was moved by the appellant
insurance company which was allowed on
14.02.2011. Thereafter the matter was
fixed on 23.02.2011 on which date the
insurance
company
had
made
an
application seeking recall of order dated
11.10.2010 by which the opportunity to
lead the evidence was closed by the court
however the said application was also
rejected and thereafter the matter was
reserved for orders consequently it has
given
rise
to
the
judgment
dated
05.03.2011 and it has been submitted that
once the application of the insurance
company under section 170 of the Motor
Vehicles Act was allowed on 14.02.2011
thereafter no opportunity was granted to
the insurance company to lead the
evidence as the insurance company was to
summon the driver of the truck for the
purpose of buttressing their defense which
has been improperly rejected by the
Tribunal.
Accordingly,
it
has
been
submitted
that
the
award
dated
05.03.2011 is bad in eyes of law since an
opportunity has been deprived to the
insurance company.

10. Per contra, Shri Prakash Chandra
learned counsel appearing for claimants
has
submitted
that
initially
the
applications under Section 170 of Motor
Vehicles Act was rejected on 15.09.2010
and later the opportunity of the insurance
company to lead the evidence was also
closed on 11.10.2010.

11. Even though by means of order
dated 14.02.02011 the court permitted the
insurance company to contest on all the
grounds yet it made the application for
recalling of order dated 11.10.2010 after
514 INDIAN LAW REPORTS ALLAHABAD SERIES
more that eight months and that too with
the
sole
purpose
of
delaying
the
proceedings. It is further been submitted
that after the application was rejected on
23.02.2011 the insurance company did
not assail the said order further. Once the
matter was fixed for judgment thereafter
there is no purpose for the insurance
company to lead evidence coupled with
he fact that where the question regarding
the negligence was already established
and the insurance company had already
participated in the proceedings and had
cross examined the claimant witness and
the owner did not examine the driver. In
the aforesaid circumstances it could not
be said that no opportunity was granted to
the insurance company.

12. The Court has considered the
rival submissions and also perused the
records. On the perusal of the record it
would indicate that on the date of the
accident i.e. 06.12.2008 the brother of the
deceased Shri Ambrishwar Singh had
primarily lodged the FIR in which a clear
averment was contained that the accident
had occurred on account of rash and
negligent driving of the truck driver. In
pursuance of the aforesaid FIR, a criminal
case was also lodged against the driver of
the truck. The certified copy of site map
was also brought on record. The site plan
clearly indicates that the motorcycle
which was being driven by the deceased
and seen by the eyewitness was coming
on left side of the road from West to East
i.e.
from
Lucknow
side
towards
Raibarailly side. It however indicates that
the truck which was going from the
Raiberailly side and ought to have been
on its left side rather it has completely
swerved and had moved on its right side
and has hit the motorcycle. From the
perusal of site plan it is clear that the
truck was found to be on wrong side and
therefore upon the same coupled with the
testimony of the eye witness Shri
Ambrishwar Singh who has been cross
examined by the insurance company, no
material contradiction or inconsistency
could be elicited from his testimony.

13. Moreover the eyewitness has
completely supported the version and
accordingly upon consideration of the
evidence brought on record, the findings
returned by the Tribunal in so far as issue
number 1 and 3 is concerned, this Court
does not find that there is any scope for
interference therein.

14. The submission of the learned
counsel for the appellant is that it has
been deprived of an opportunity to contest
the claim on merits. As far as this
submission is concerned it would be seen
that the insurance company has merely
raised a defense which is not in its
personal means of knowledge. It is
borrowed from the plea which was raised
by owner of truck while filing his written
statement which is dated 07.05.2008
whereas written statement filed by the
insurance company is dated 04.09.2009.
In light of the documentary evidence
which was brought on record coupled
with the evidence of the eyewitness i.e.
PW-2 it is clear that the accident had
occurred on account of rash and negligent
driving
of
the
truck
in
question.
Surprisingly the truck owner has not
preferred any appeal and at no point of
time the truck driver was ever examined
as an eyewitness to support the plea. The
insurance company also did not made any
application to summon the truck driver as
a witness rather only an application made
at the late stage on 23.02.2011 seeking to
recall the order dated 11.10.2010 by
4 All. Smt. Ranjan Singh & Ors. Vs. Shri Abbu Saeed & Ors.
515
which its opportunity to lead the evidence
had been closed while the matter was ripe
and fixed for final hearing. Significantly
on 23.02.2011 the matter was heard and
also reserved for judgment and thereafter
the award was pronounced on 05.03.2011.
From the record it would indicate that the
insurance company has not made any
effort to seriously contest the claim
petition. Once its application under
section 170 had been dismissed and
consequently its opportunity to lead
evidence had been closed on 11.10.2010
no effort to assail the said orders was
made by the insurance company. The
learned
counsel
for
the
insurance
company could not indicate any fresh
material which was brought on record
which could establish that the insurance
company has come in possession of
certain new facts or circumstances which
justified the making of an application for
seeking recall of order dated 11.10.2010.

15. Under the circumstances where
insurance company has not made the
effort to lead evidence of its own and
rather had already cross examined the
claimant witness thereafter at the late
stage where the claim petition was ripe
for final hearing attempt to derail the
entire proceedings by means of repeated
applications and seeking summoning of
the driver, the same could not be
construed as the bonafide attempt coupled
with the fact that in the entire memo of
appeal the ground though has been taken
in its appeal however the emphasis is
merely upon the contributory negligence
coupled with the facts reliance has been
placed on the newspaper cutting which
indicated that on account of dense fog the
accident occurred. Neither the newspaper
cutting was placed before the Tribunal nor
any such pleadings is present in either the
FIR or in the claim petition, neither in the
written statement of any of the opposite
parties and thus at a later stage, an attempt
to carve out new case on the basis of
newspaper cutting does not appear to be a
bonafide
defense.
Accordingly,
the
submission for the reasons as mentioned
above does not find favour of this Court.
Accordingly the appeal preferred by the
insurance company i.e. FAFO No. 433 of
2011 does not have merit and is
accordingly dismissed.

16. Now coming to the FAFO 604
of 2011, learned counsel for claimants has
raised his argument on following grounds:

16.1 That the Tribunal has erred in
considering the salary of deceased to be
Rs 15,000/- whereas according to salary
certificate which was brought on record it
indicated that gross salary of deceased
was Rs 16,040/-. It is further been
submitted by the learned counsel for
claimants that the Tribunal has also
incorrectly made income tax deduction of
Rs 27,000/- @20% coupled with the fact
that it has adopted an unsound reasoning
of deducting 50% towards personal
expenses solely on the ground that the
claimant no. 1 i.e. the wife of the
deceased was also a earning member. The
submission is that where there were five
dependents
of
the
deceased
thus
according to the decision of the Apex
Court in the case of Sarla Verma & Ors
vs Delhi Transport Corporation &
anothers (2009) 6 Supreme Court Cases
121 and subsequent constitution bench
decision
in
the
case
of
National
Insurance Company Limited vs Pranay
Sethi (2017) 16 Supreme Court Cases
680 the Tribunal ought to have made a
deduction of 1/4th and 50% deduction is
totally unwarranted. It has also been
516 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted that the tribunal has added for
the future prospect of deceased @ 30%
whereas the percentage ought to have
been taken at 50% considering the age of
the deceased which was 38 years at the
time of accident. It is further been
submitted that the compensation for nonpecuniary damages which has been
awarded is extremely low and is not in
accordance with the amount which has
been fixed by the Apex Court in the case
of Pranay Sethi (Supra).

17. Learned counsel for the
appellant has also submitted that while
disbursing the amount the tribunal has put
an embargo upon wife of deceased in as
much as a sum of Rs 6 lakhs has been
awarded to her out of which Rs 1,50,000/-
has been directed to be paid by means of a
crossed cheque and remaining Rs 4.5
lakhs have been directed to be paid to her
in shape of fixed deposits maturing after
5, 7 and 9 years respectively. It has been
submitted that this kind of restriction
imposed by Tribunal is not in sound
exercise
of
discretion
especially
considering the fact that children of
deceased have already attained a age
where they are taking specialized and
higher
education
in
the
filed
of
engineering and therefore by placing
these unnecessary fetters it also creates a
restriction which needs to be set aside.

18. Shri Anil Kumar Srivastava
learned counsel appearing for insurance
company in FAFO no. 604 of 2011 has
submitted that the Tribunal has correctly
assessed the compensation coupled with
the fact that death in family is not to be
considered as a bounty rather the Tribunal
has fairly considered the compensation
which is just and appropriate and it is with
aforesaid principle in mind that the
Tribunal has considered all aspects of the
matter and has correctly made the
assessment and has awarded the sum of
Rs 15,62,000/- to claimants.

19. Considering the submissions of
the learned counsel for the parties this
Court
has
considered
the
material
available on record and also the finding
recorded by the Tribunal on issue no. 5.
The record indicates that the salary
certificate which was issued and duly
verified by the Senior Superintendent of
the Central Prisons at Naini, Allahabad
indicated that the deceased Amitabh
Singh was drawing a total salary of Rs
16,040/-. As far as his age is concerned
the same was verified on the basis of
documents in which he was found to be of
38 years. It is also not disputed that the
deceased was survived by his wife, three
minor children and mother. The decision
in cases of Sarla Verma & Ors vs Delhi
Transport Corporation & anothers and
National Insurance Company Limited
vs Pranay Sethi is being taken note of
and relevant para of the aforesaid
decisions are being reproduced hereinafter
for ready reference.

19.1 In the case of Sarla Verma &
Ors vs Delhi Transport Corporation &
anothers
Hon'ble
Apex
Court
has
observed 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
Chandra, the general practice is to apply
standardized
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
4 All. Smt. Ranjan Singh & Ors. Vs. Shri Abbu Saeed & Ors.
517
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
dependant family members is 4 to 6, and
one-fifth (1/5th) where the number of
dependant family members exceed six.

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 to 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,
and 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 to 70 years.'

19.2 In the case of National
Insurance Company Limited vs Pranay
Sethi Hon'ble Apex Court has observed as
under:

''37. Three aspects need to be
clarified. The first one pertains to
deduction towards personal and living
expenses. In paragraphs 30, 31 and 32,
Sarla Verma lays down:-

"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, the general practice is to apply
standardized
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 onethird (1/3rd) where the number of
dependent family members is 2 to 3, one-
fourth (1/4th) where the number of
dependant family members is 4 to 6, and
one-fifth (1/5th) where the number of
dependant family members exceed six.

31. Where the deceased
was a bachelor and the claimants are the
parents, the deduction follows a different
principle.
In
regard
to
bachelors,
normally, 50% is deducted as personal
and living expenses, because it is assumed
that a bachelor would tend to spend more
on himself. Even otherwise, there is also
the possibility of his getting married in a
short time, in which event the contribution
to the parent(s) and siblings is likely to be
cut
drastically.
Further,
subject
to
evidence to the contrary, the father is
likely to have his own income and will not
be considered as a dependant and the
mother alone will be considered as a
dependant. In the absence of evidence to
the contrary, brothers and sisters will not
be considered as dependants, because
they will either be independent and
earning, or married, or be dependent on
the father.

32.
Thus
even
if
the
deceased is survived by parents and
siblings, only the mother would be
considered to be a dependant, and 50%
would be treated as the personal and
living expenses of the bachelor and 50%
as the contribution to the family.
However, where the family of the
bachelor is large and dependent on the
income of the deceased, as in a case
where he has a widowed mother and
large number of younger nonearning
sisters or brothers, his personal and
living expenses may be restricted to onethird and contribution to the family will
be taken as two-third."'
518 INDIAN LAW REPORTS ALLAHABAD SERIES

''39. In Reshma Kumari, the
three-Judge
Bench,
reproduced
paragraphs 30, 31 and 32 of Sarla Verma
and approved the same by stating thus:
(Reshma Kumar Case, SCC pp. 90- 91,
paras 41-42)

"41.
The
above
does
provide guidance for the appropriate
deduction
for
personal
and
living
expenses. One must bear in mind that the
proportion of a man's net earnings that he
saves or spends exclusively for the
maintenance of others does not form part
of his living expenses but what he spends
exclusively
on
himself
does.
The
percentage of deduction on account of
personal and living expenses may vary
with reference to the number of dependent
members in the family and the personal
living expenses of the deceased need not
exactly correspond to the number of
dependants.

42.
In
our
view,
the
standards fixed by this Court in Sarla
Verma on the aspect of deduction for
personal living expenses in paras 30, 31
and 32 must ordinarily be followed unless
a case for departure in the circumstances
noted in the preceding paragraph is made
out."'

''40. The conclusions that have
been summed up in Reshma Kumari are
as follows:-

"43.1. In the applications
for compensation made under Section 166
of the 1988 Act in death cases where the
age of the deceased is 15 years and
above, the Claims Tribunals shall select
the multiplier as indicated in Column (4)
of the Table prepared in Sarla Verma
read with para 42 of that judgment.

43.2. In cases where the
age of the deceased is up to 15 years,
irrespective of Section 166 or Section
163- A under which the claim for
compensation has been made, multiplier
of 15 and the assessment as indicated in
the Second Schedule subject to correction
as pointed out in Column (6) of the Table
in Sarla Verma should be followed.

43.3. As a result of the
above, while considering the claim
applications made under Section 166 in
death cases where the age of the deceased
is above 15 years, there is no necessity for
the Claims Tribunals to seek guidance or
for placing reliance on the Second
Schedule in the 1988 Act.

43.4. The Claims Tribunals
shall follow the steps and guidelines
stated in para 19 of Sarla Verma for
determination of compensation in cases of
death.

43.5.
While
making
addition to income for future prospects,
the Tribunals shall follow para 24 of the
judgment in Sarla Verma.

43.6. Insofar as deduction
for personal and living expenses is
concerned,
it
is
directed
that
the
Tribunals shall ordinarily follow the
standards prescribed in paras 30, 31 and
32 of the judgment in Sarla Verma subject
to the observations made by us in para 41
above."

41. On a perusal of the analysis
made in Sarla Verma which has been
reconsidered in Reshma Kumari, we think
it appropriate to state that as far as the
guidance
provided
for
appropriate
deduction
for
personal
and
living
expenses is concerned, the tribunals and
courts should be guided by conclusion
43.6 of Reshma Kumari. We concur with
the same as we have no hesitation in
approving the method provided therein.

42. As far as the multiplier is
concerned, the claims tribunal and the
Courts shall be guided by Step 2 that finds
place in paragraph 19 of Sarla Verma
4 All. Smt. Ranjan Singh & Ors. Vs. Shri Abbu Saeed & Ors.
519
read with paragraph 42 of the said
judgment. For the sake of completeness,
paragraph 42 is extracted below:-

"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 ultiplier of
18 (for the age groups of 15 to 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,
and 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 to 70 years."

''44. At this stage, we must
immediately say that insofar as the
aforesaid
multiplicand/multiplier
is
concerned, it has to be accepted on the
basis of income established by the legal
representatives of the deceased. Future
prospects are to be added to the sum on
the percentage basis and "income" means
actual income less than the tax paid. The
multiplier has already been fixed in Sarla
Verma which has been approved in
Reshma Kumari with which we concur.'

''45. In our considered opinion,
if the same is followed, it shall subserve
the cause of justice and the unnecessary
contest before the tribunals and the courts
would be avoided.'

''52.
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 fact-centric
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.'

20. From the above it would indicate
that in so far as deduction of 50% by the
Tribunal
on
account
of
personal
expenditure of the deceased is concerned,
the same is not in consonance with the
principles as laid down by Apex Court,
which ought to have been 1/4th.

21. Even the tax liability of 20%
which has been deducted is also not in
sound exercise of jurisdiction. It will be
relevant to mention that since the
deceased was a government servant thus
as per the prevailing income tax laws it is
incumbent for the employer to deduct tax
520 INDIAN LAW REPORTS ALLAHABAD SERIES
prior to the payment of the salary and
moreover since the salary is Rs 16,040/-
per month thus after deduction of tax at
source there can be no scope of further
deduction
and
even
otherwise
the
deceased would be in the non-taxable
bracket. However the reason given by the
Tribunal is erroneous in as much it held
that by adding for future prospect the
income comes in the taxable bracket but it
failed to consider and note that with
passage of time the exemption limits of
income tax also increase from time to
time. This aspect of the matter has been
considered by the Apex Court in the case
of Manasavi Jain vs Delhi Transport
Corporation (2014) 13 Supreme Court
Cases 22 and the relevant paras read as
under:

''8. This Court in Shyamwati
Sharma & Ors. Vs. Karam Singh & Ors.
(2010) 12 SCC 378, while considering the
issues of deduction of taxes, contributions
etc., for arriving at the figure of net
monthly income, held that(SCC p. 380,
para 9):

"while
ascertaining
the
income of the deceased, any deductions
shown in the salary certificate as
deductions towards GPF, life insurance
premium, repayments of loans etc., should
not be excluded from the income. The
deduction towards income tax / surcharge
alone should be considered to arrive at
the net income of the deceased."

9. In the present case, there is
no dispute about of the salary of the
deceased. As per salary certificate, his
monthly income and deductions are as
under:

Monthly Income Rs.

26,950-00

Deductions Provident Fund

8,000-00

House Rent

525-00

G.I.S.

120-00

Income Tax

2,500-00

So, from the above table, it is
clear that except an amount of Rs.2,500/-
towards Income Tax, rest of the amounts
were voluntarily contributed by the
deceased for the welfare of his family.
Considering the decision of this Court in
Shyamwati Sharma & Ors., (supra), in
our opinion, except contribution towards
Income
Tax,
the
other
voluntary
contributions made by the deceased,
which are in the nature of savings, cannot
be deducted from the monthly salary of
the deceased to decide his net salary or
take home salary. Hence, the take home
salary
of
the
deceased
comes
to
Rs.24,450/- which can be rounded to
Rs.25,000/-.'

22. Also the Apex Court in the case
of Vimal Kanwar & Others vs Kishore
Dan & others and as reported in (2013)
7 Supreme Court Cases 476 where
considering and following the case of
Sarla Verma (Supra) it has been held as
under:

The third issue is "whether the
income tax is liable to be deducted for
determination of compensation under the
"Motor Vehicles Act" In the case of Sarla
Verma & Anr. (Supra), this Court held
"generally the actual income of the
deceased less income tax should be the
starting
point
for
calculating
the
compensation."
This
Court
further
observed that "where the annual income
is in taxable range, the word "actual
salary" should be read as "actual salary
less tax". Therefore, it is clear that if the
4 All. Smt. Ranjan Singh & Ors. Vs. Shri Abbu Saeed & Ors.
521
annual income comes within the taxable
range income tax is required to be
deducted for determination of the actual
salary. But while deducting income-tax
from salary, it is necessary to notice the
nature of the income of the victim. If the
victim is receiving income chargeable
under the head "salaries" one should keep
in mind that under Section 192(1) of the
Income-tax
Act,
1961
any
person
responsible for paying any income
chargeable under the head "salaries"
shall at the time of payment, deduct
income- tax on estimated income of the
employee
from
"salaries"
for
that
financial
year.
Such
deduction
is
commonly known as tax deducted at
source (''TDS' for short). When the
employer fails in default to deduct the
TDS from employee salary, as it is his
duty to deduct the TDS, then the penalty
for non-deduction of TDS is prescribed
under Section 201(1A) of the Income-tax
Act, 1961.

Therefore, in case the income of
the victim is only from "salary", the
presumption would be that the employer
under Section 192(1) of the Income- tax
Act, 1961 has deducted the tax at source
from the employee's salary. In case if an
objection is raised by any party, the
objector
is
required
to
prove
by
producing evidence such as LPC to
suggest that the employer failed to deduct
the TDS from the salary of the employee.

However, there can be cases
where the victim is not a salaried person
i.e. his income is from sources other than
salary, and the annual income falls within
taxable range, in such cases, if any
objection as to deduction of tax is made
by a party then the claimant is required to
prove that the victim has already paid
income tax and no further tax has to be
deducted from the income.

23. Thus this Court finds that 20%
deduction
made
towards
tax
was
unwarranted.

24. Similarly the consideration of
future prospects has also not been rightly
considered and is against the provisions as
settled by the Apex Court in above
mentioned decisions which has been
reproduced for ready reference.

24.1 In the case of National
Insurance Company Limited vs Pranay
Sethi Hon'ble Apex Court has observed as
under:

''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.'

25. Thus in the present case the
deceased was in a permanent job having a
salary which was subject to enhancement
522 INDIAN LAW REPORTS ALLAHABAD SERIES
with passage of time accordingly applying
the principle of Pranay Sethi (Supra) 50%
ought to be added towards future prospect
to the salary of the deceased.

26.