# Smt Seema Devi v. Smt. Jyoti Gupta & Anr

- **Citation:** (2019) 2 ILRA 1015
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-02-13
- **Case number:** First Appeal From Order No. 4035 of 2012
- **Bench:** Bala Krishna Narayana, Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-seema-devi-v-smt-jyoti-gupta-anr-44338
- **Pages:** 6

## Headnote

A. Motor Vehicle Act,1988 - Compensation -
notional income of deceased driver - driving
being skilled job - notional income fixed at
Rs. 6000/- per month.
Held: -Job of driver being skilled job, in the
absence of any documentary evidence for
proving the monthly income of the deceased -
the notional income of the deceased should be
fixed at Rs. 6000/- per month for the purpose
of
awarding
just
and
reasonable
compensation. (Para 13)
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal Partly allowed (E-5)
List of cases cited: -

## Text

2 All. Smt. Seema Devi Vs Smt. Jyoti Gupta & Anr.
1015
and discussed above, I do not agree with
the findings of the IO in respect of the
article of charges II & III. I hold Sh. S.N.
Khan, ERC/LKO guilty of the charges
brought out against him under article of
charges II & III."

32. From the above quoted portion
of
the
disagreement
memo,
it
is
apparent/evident that the Disciplinary
Authority before considering the reply of
the charged employee has recorded the
findings/conclusion and by the same
reversed the findings of the Enquiry
Officer. The same is contrary to settled
principles of Law.

33. Considering the principles laid
down by the Apex Court in the above
referred judgments as well as the
conclusion drawn by the Disciplinary
Authority, quoted hereinabove, in the
disagreement memo, we find that the
present case is squarely covered under the
aforesaid judgments.

34. For foregoing reasons, we do not
find any force in the submissions of the
learned counsel for the petitioners, Sri
Amit Sharma to the effect that the case of
the applicant-respondent is on different
footing and the ratio laid down by the
Apex Court in the case of Yoginath D.
Bagde (supra) would not apply.

35. For the reasons and findings
recorded hereinabove, we are of the view
that the interference is not required in the
judgment and order passed by the
Tribunal. The writ petition for it lacks
merit. Hence, dismissed with no order as
to costs.

36. However, in fact of the case i.e.
age of litigation and litigant, we are not
remitting
the
matter
back
to
the
petitioners for considering the case of the
applicant-respondent in accordance with
law. In the interest of substantial justice,
we direct that the period w.e.f. the date of
order of punishment till attaining the age
of superannuation would only be counted
for the purposes of pensionary/post retiral
dues and other benefits and the applicantrespondent would not be entitled for the
salary with respect to the said period.
----------
(2019)10ILR A 1015

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2018

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA,
J.
THE HON'BLE IRSHAD ALI, J.

First Appeal From Order No. 4035 of 2012

Smt Seema Devi ...Appellant
Versus
Smt. Jyoti Gupta & Anr. ...Respondents

Counsel for the Appellant:
Sri Amit Kumar Sinha

Counsel for the Respondents:
Sri Pranjal Mehrotra, Sri Virendra Kumar
Gupta, Sri Pawan Kumar Mishra

A. Motor Vehicle Act,1988 - Compensation -
notional income of deceased driver - driving
being skilled job - notional income fixed at
Rs. 6000/- per month.
Held: -Job of driver being skilled job, in the
absence of any documentary evidence for
proving the monthly income of the deceased -
the notional income of the deceased should be
fixed at Rs. 6000/- per month for the purpose
of
awarding
just
and
reasonable
compensation. (Para 13)
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal Partly allowed (E-5)
List of cases cited: -
1. National Insurance Company Ltd. Vs Pranay
Sethi & ors. reported in (2017) 4 TAC 637 (SC)
2.Sarla Verm Vs Delhi Transport Corporation
2009 ACJ 1298 (SC)
3.Minu Rout & anr. Vs Satya Pradyumna
Mohapatra & ors. (2013) 10 SCC 695

(Delivered by Hon'ble Bala Krishna
Narayana, J. & Hon'ble Irshad Ali, J.)

1. Heard Sri Amit Kumar Sinha,
learned counsel for the appellant, Sri
Pawan Kumar Mishra, holding brief of Sri
Sri Pranjal Mehrotra for respondent no. 2.
None has appeared on behalf of the
respondent no. 1.

2. This appeal has been filed by the
appellant claimant against the judgement
and order dated 10.7.2012 passed by the
Motor Accident Claim Tribunal / Special
Judge (S.C./S.T.) Act, Allahabad (in short
the 'tribunal') in M.A.C.P. No. 659 of
2011 questioning the correctness of the
amount of compensation awarded by the
tribunal for the death of Shyam Babu
Goshwami in an accident.

3. The brief facts of the case are that
on 12.7.2011 at about2.30 a.m., deceased
Shyam Babu Goshwami, husband of the
claimant appellant, who was the driver of
Truck No. U.P. 70 B.T. 0291, after
parking his truck in village Mankahari
Naya Gate railway gate, P.S. Rampur
Baghelna,
District
Satana,
Madhya
Pradesh was resting under his truck when
a Truck No. U.P. 78 B.T. 1960
(hereinafter referred to as 'offending
vehicle') which was being driven rashly
and negligently by its driver collided with
the deceased's truck from behind as a
result the deceased was crushed under the
wheals of the truck and sustained serious
injuries. He was taken to the M.P. Birla
Hospital where he died during treatment;
at the time of his death the deceased
Shyam Babu Goshwami was aged about
28 years and was earning a sum of Rs.
7000/- per month as salary while working
as driver of truck No. U.P. 70 B.T. 0291,
the deceased had left behind his wife Smt.
Seema Devi aged about 25 years,
daughters Ku. Poonam aged about 6
years, Ku. Neha aged about 5 years and
sons Vikas Goshwami aged about 4 years
and Suraj Goshwami aged about 2 years.
Swami Nath aged about 54 years and Smt.
Munni Devi aged about 52 years parents
of the deceased who were dependents
upon him.

4. The first information report of the
accident was lodged by one Pintu Dube at
P.S. Rampur Beegha, District Satna Madhya
Pradesh which was registered as Case Crime
No. 382 of 2011, under Sections 279, 337
I.P.C. against the driver of the offending
vehicle. Stating the aforesaid facts the
appellant filed M.A.C.P. No. 659 of 2011
claiming Rs. 20,00,000/- as compensation
for the death of her husband.

5. The appellant's claim was
contested by opposite party nos. 1 and 2,
who filed their written statements paper
nos. 41-A and 10-A respectively.

6. Opposite party no. 1 Jyoti Gupta
in her written statement denied the
allegations made in the claim petition and
further pleaded that the liability if any, to
pay the compensation to the claimant
appellant was that of the opposite party
no. 2, the insurer of the offender truck.
2 All. Smt. Seema Devi Vs Smt. Jyoti Gupta & Anr.
1017

7. The opposite party no. 2 in his
written statement apart from denying the
allegations made in the claim petition due
to lack of proper knowledge denied its
liability to pay the compensation on
various counts.

8. On the basis of the pleadings of
the parties, tribunal framed as many as
four issues.

9. The claimant appellant in order to
prove her case examined herself as P.W. 1
and one Vinod Kumar Goswami eye
witness of the accident as P.W. 2.
Documentary evidence which was filed by
the claimant appellant before the tribunal
comprised of copy of F.I.R. of the incident
which was registered as Case Crime No.
382 of 2011, inquest report of deceased
Shyam Babu and memo dated 13.7.2011
showing that the deceased was admitted to
M.P. Birla Hospital as an injured patient,
application given by the police department
of Madhya Pradesh Administration for
conducing post mortem on the body of the
deceased and papers pertaining to the
treatment of deceased in M.P. Birla
Hospital, Madhya Pradesh.

10. Opposite party no. 1 the owner
of the vehicle did not examine any
witnesses. She filed the registration
certificate of the offending truck, driving
license of its driver, fitness certificate,
national permit, Insurance policy and
pollution control certificate.

11. The tribunal after considering
the submissions made before it by the
learned counsel for the parties and
scrutinizing the evidence on record,
allowed the claim petition in part
awarding a sum of Rs. 3,93,500/- as
compensation to the claimant appellant
against the opposite party nos. 1 and 2 to
be paid by the respondent no. 2.

12. Learned counsel for the
appellant has challenged the quantum of
compensation as awarded by trubunal on
the following grounds :

(i) The job of driver being
skilled job, in the absence of any
documentary evidence on record in
support of the appellant's claim that the
deceased was earning Rs. 7000/- per
month as driver, the notional income of
the deceased should have been fixed at
Rs. 6000/- per month for the purpose of
awarding
just
and
reasonable
compensation instead of Rs. 3000/- per
month has held by the tribunal.

(ii)
The
tribunal
has
not
awarded any amount towards future
prospect of the deceased. Considering the
fact that the deceased at the time of his
death aged about 28 years, the tribunal
while determining the income of the
deceased, who was self employed ought
to have added 40% of the established
income towards future prospect.

(iii) The amount awarded under
the conventional heads, namely, loss of
estate, loss of consortium and funeral
expenses awarded by the tribunal is too
meager.

13. In support of his aforesaid
contentions, learned counsel for the
appellant has placed reliance upon in the
case of Minu Rout and another vs. Satya
Pradyumna
Mohapatra
and
others
(2013) 10 SCC 695 as well as in the case
of National Insurance Company Limited
Vs. Pranay Sethi and others reported in
2017 (4) TAC 637 (SC)
1018 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Per contra learned counsel for
the respondents made their submissions in
support of the impugned judgement and
award.

15. We have heard learned counsel
for the parties and perused the impugned
judgement and award as well as the
material brought on record.

16. While dealing with the issue
regarding monthly income of the the
deceased who was doing a skilled job and
where
there
was
no
documentary
evidence for proving the monthly income
of the deceased, the Apex Court in
paragraph 119 and 20 of the case Minu
Rout and another vs. Satya Pradyumna
Mohapatra and others (supra) held as
hereunder:

"19. The appellants claimed
compensation under the heading of loss of
dependency as they were all dependents
upon the earnings of the deceased Susil
Rout. It is an undisputed fact that Susil
Rout was working as a driver of the car
which is a skilled job. Appellants have
stated in the claim petition and in the
evidence of PW-1 that the deceased was
earning Rs.5,000/- per month. The oral
evidence of PW-1 is not accepted by the
Tribunal, solely for the reason that the
appellants did not produce documentary
evidence to prove the monthly salary of
the deceased as Rs.5,000/- per month as
claimed by them. However, it had taken
monthly income of the deceased at
Rs.3,000/-, for the purpose of determining
the multiplicand. Out of Rs.3,000/- p.m.,
1/3rd amount was deducted towards
personal expenses of the deceased and
arrived at Rs.3,84,000/- towards loss of
dependency. Out of that compensation,
50% was deducted towards contributory
negligence on the part of the deceased
and Rs.1,92,000/- was awarded under the
above
heading.
The
compensation
awarded by the Tribunal is approved by
the High Court, which is not only
erroneous in law but also suffers from
error in law.

20. The Tribunal ought to have
taken the salary of the deceased driver at
Rs.6,000/- by taking judicial notice of the
fact that the post of a driver is a skilled
job. Though the claim of the appellants is
Rs.5000/- as monthly salary of the
deceased for the purpose of determining
the loss of dependency, the actual
entitlement of the salary of the deceased
should have been taken at Rs.6000/- per
month by the Tribunal for awarding just
and reasonable compensation, which is
the statutory duty of the Tribunal and the
Appellate Court. In view of the law laid
down by this Court in Santosh Devi vs.
National Insurance Company Ltd. &
Ors.; 30% of future prospects of the
deceased should be added to the monthly
income. If 30% is added to the monthly
income, it would amount to Rs.7,800/-
p.m. From the same, 1/3rd should be
deducted towards the personal expenses
of the deceased, then the remaining
amount would come to Rs.5,200/- per
month. The same is multiplied by 12
amounting to Rs.62,400/- which would be
the multiplicand. The same must be
multiplied by 16 multiplier as the
Tribunal has taken the age of the
deceased at 35 as mentioned in the post
mortem report, which is produced as
Exh.5. According to the decision of this
Court in Sarla Verm vs. Delhi Transport
Corporation Sarla Verma vs. Delhi
Transport Corporation, the multiplier of
16 taken by the Tribunal for computation
of loss of dependency is correct. If the 16
2 All. Smt. Seema Devi Vs Smt. Jyoti Gupta & Anr.
1019
multiplier is applied to the multiplicand of
Rs.62,400/-, it comes to Rs.9,98,400/-
which amount is awarded towards the
loss of dependency of the appellants."

17. Thus, we hold that the tribunal
committed a patent error of law in holding
the notional income of the deceased to be
Rs. 3000/- whereas in accordance with
principles propounded by the Apex Court
in the case ofMinu Rout and another Vs.
Satya Pradyumna Mohapatra and others
(supra)the
income
of
the deceased
considering the skilled job of the deceased
should be Rs. 6000/- per month.

18. The constitutional bench of the
Apex Court in the case of National
Insurance Company Limited Versus
Pranay Sethi and Others reported in
2017 (4) T.A.C. 637 (S.C.) in subparagraph (iii) to (viii) of paragraph 61
has
ruled
inter-alia;
that
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; 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; for determination of the
multiplicand, the deduction for personal
and living expenses, the tribunals and the
courts shall be guided by paragraphs 14 to
15 of Sarla Verma, 2009 ACJ 1298 (SC);
the selection of multiplier shall be as
indicated in the Table in Sarla Verma,
2009 ACJ 1298 (SC) read with para 21 of
that judgment; the age of the deceased
should be the basis for applying the
multiplier;
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
aforesaid
amounts
should
be
enhanced at the rate of 10% in every three
years.

19. Thus in view of the legal
principles propounded by the Apex Court
in the Constitutional Bench Judement in
the case of National Insurance Company
Limited Versus Pranay Sethi and Others
(supra), we find that while determining
the monthly income of the deceased the
tribunal should have added 40% of the
deceased's established income towards
future prospect and the amount awarded
by the tribunal under the conventional
heads of loss of estate, loss of consortium
and funeral expenses is also too meagre
and liable to be enhanced.

20. In view of the foregoing
discussion, we allow this appeal in part
and re-calculate the compensation by
applying the principles laid down by the
Apex Court in the case of National
Insurance Company Limited (supra).
As noticed above, the notional income of
the deceased was fixed at Rs. 15,000/- per
month or Rs. 1,80,000/- p.a. by adding
40% towards future prospects as the
deceased was less than 40 years of age,
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
the deemed gross income of the deceased
would be 40% of Rs. 15,000/- = Rs.
6,000/- + Rs. 15,000/- i.e. Rs. 21,000/- per
month or Rs. 2,54,000/- p.a. After
deducting 1/3rd amount (i.e. 21,0007000) towards the personal and living
expenses of the deceased, his contribution
to the family is determined as Rs.
14,000/- per month or Rs. 1,68,000/- p.a.
After applying the multiplier of 16, the
total loss of dependency is assessed at Rs.
26,88,000/-. We further award a sum of
Rs. 15,000/- towards funeral expenses and
Rs. 40,000/- under the head of loss of
consortium. We accordingly increase the
compensation
awarded
to
the
claimants/appellants by the Tribunal from
Rs. 16,87,000/- to Rs. 27,42,000/-. The
claimants/appellants
shall
further
be
entitled to interest @ 7% p.a. on the
increased amount of compensation from
the date of filing of the claim.

21. The impugned judgement and
award stands modified to the extent
indicated hereinabove.

22. The parties shall bear their own
costs.
----------

(2019)10ILR A 1020

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE

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

First Appeal From Order No. 3382 of 2003

Smt. Geeta Devi & Ors. ...Appellants
Versus
U.P. S.R.T.C. & Anr. ...Respondents
Counsel for the Appellants:
Sri H.P. Gupta, Sri Ramesh Rai

Counsel for the Respondents:
Sri Dinkar Mani Tripathi.

A. Motor Vehicle Act,1988 - Compensation -
Enhancement - handicap person meeting
with an accident while crossing the road -
Not an act of God - At the most deceased can
be held to be 20 per cent negligent.

Held:- Question is whether the said accident
would fall within the definition of act of God -
Answer is no - It cannot be said that the
deceased died by the act of God - Deceased
being handicapped person, the driver of the
bus should have taken proper cure and
caution in driving the bus on the public road -
At the most deceased not able to cross the
road, he can be held to be 20 per cent
negligent - Claimants are entitled to a total
compensation of Rs.4,54,080/-. (Para 9 & 10)

B. Motor Vehicle Act,1988 - Compensation
- Rate of interest would be 7.5% - from
the date of filing of the claim petition till
the amount is deposited. (Para 11)

First Appeal From Order Partly allowed (E-5)
List of cases cited: -
1.Smt. Gulshan Jahan & ors. Vs Om Prakash &
anr. (2011) 2 ADJ 12 (DB)
2.Smt. Kaushnuma Begum & ors. Vs The New
India Assurance Co. Ltd. & ors. (2001) 1 SCC 5
3. Bajaj Allianz Gen. Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. F.A.F.O. No. 1818 of
2012 decided on 19.7.2016
4.National Insurance Co. Ltd. Vs Mannat Johal
& ors. (2019) 2 T.A.C. 705 (S.C.)

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Serve Singh assisted by
Sri Harish Prasad Gupta, learned counsel