# Smt. Servesh Devi & Ors v. Ankush Agarwal & Ors

- **Citation:** (2022) 5 ILRA 688
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-11
- **Case number:** First Appeal From Order No. 955 of 2016
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-servesh-devi-ors-v-ankush-agarwal-ors-48576
- **Pages:** 10

## Headnote

A. Civil Law - Motor Accident Act, 1988 -
Section
173
-
Compensation
-
Determination of income - Deceased
was an unskilled labour - Notional
income - Tribunal determined it as Rs.
100/- per day - Validity challenged -
Held, notional income of unskilled labour
cannot be taken to be less than Rs.
200/- per day - Presumption of Rs.
100/- per day as notional income, even
for an unskilled labour in the year 2014,
would be frugal and by no stretch of
imagination can be considered to be just
because even the minimum wages fixed
by the State Government were much
higher than that - Smt. Resha Devi's
case relied upon - High Court recomputed the compensation. (Para 10
and 18)
B. Civil Law - UP Motor Vehicle Rules,
1998
-
Rule
220-A
(3)
-
Future
prospects - Loss of estate, loss of
consortium and funeral expenses - Held,
there was no rationale not to add future
prospects in the income of the selfemployed or a person who is on a fixed
salary and such denial would be unjust -
30%
has
to
be
added
as
future
prospects in the notional income of the
deceased
while
determining
the
multiplicand as deceased was 40 years
old - Pranay Sethi's case relied upon.
(Para 12, 13 and 15)
C. Civil Law - U.P. Motor Vehicle Rules,
1998
-
Rule
220-A
(4)
-
Compensations - Loss of love and
affection
and
loss
of
consortium,
whether can be awarded separately -
Contradiction in statutory provision
and judicial precedent - Though the
Rule
(4)
provide
for
separate
compensation for 'loss of love and
affection' and 'loss of consortium',
Supreme Court held in Satinder Singh's
case that loss of love and affection is
included in loss of consortium and,
therefore, there is no justification to
award compensation towards loss of
love and affection as a separate head -
Held, 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
-
Claimants were entitled to separate
compensation for loss of consortium
and for loss of love and affection -
Urmila Shukla's case relied upon. (Para
15, 16 and 17)
Appeal allowed (E-1)
List of Cases cited :-

## Text

688 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)05ILR A688
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

THE HON'BLE SALIL KUMAR RAI , J.

First Appeal From Order No. 955 of 2016

Smt. Servesh Devi & Ors. ...Appellants
Versus
Ankush Agarwal & Ors. ...Respondents

Counsel for the Appellant:s
Sri Ram Singh, Sri Amit Kumar Singh

Counsel for the Respondents:

A. Civil Law - Motor Accident Act, 1988 -
Section
173
-
Compensation
-
Determination of income - Deceased
was an unskilled labour - Notional
income - Tribunal determined it as Rs.
100/- per day - Validity challenged -
Held, notional income of unskilled labour
cannot be taken to be less than Rs.
200/- per day - Presumption of Rs.
100/- per day as notional income, even
for an unskilled labour in the year 2014,
would be frugal and by no stretch of
imagination can be considered to be just
because even the minimum wages fixed
by the State Government were much
higher than that - Smt. Resha Devi's
case relied upon - High Court recomputed the compensation. (Para 10
and 18)
B. Civil Law - UP Motor Vehicle Rules,
1998
-
Rule
220-A
(3)
-
Future
prospects - Loss of estate, loss of
consortium and funeral expenses - Held,
there was no rationale not to add future
prospects in the income of the selfemployed or a person who is on a fixed
salary and such denial would be unjust -
30%
has
to
be
added
as
future
prospects in the notional income of the
deceased
while
determining
the
multiplicand as deceased was 40 years
old - Pranay Sethi's case relied upon.
(Para 12, 13 and 15)
C. Civil Law - U.P. Motor Vehicle Rules,
1998
-
Rule
220-A
(4)
-
Compensations - Loss of love and
affection
and
loss
of
consortium,
whether can be awarded separately -
Contradiction in statutory provision
and judicial precedent - Though the
Rule
(4)
provide
for
separate
compensation for 'loss of love and
affection' and 'loss of consortium',
Supreme Court held in Satinder Singh's
case that loss of love and affection is
included in loss of consortium and,
therefore, there is no justification to
award compensation towards loss of
love and affection as a separate head -
Held, 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
-
Claimants were entitled to separate
compensation for loss of consortium
and for loss of love and affection -
Urmila Shukla's case relied upon. (Para
15, 16 and 17)
Appeal allowed (E-1)
List of Cases cited :-
1. New India Assurance Co. Ltd. Vs Smt. Resha
Devi & ors.; 2017 (3) ADJ 685
2. National Insurance Co. Ltd. Vs Pranay Sethi &
ors.; (2017) 16 SCC 680
3. Magma General Insurance Co. Ltd. Vs Nanu
Ram; 2018 SCC OnLine SC 1546
4. United India Insurance Co. Ltd. Vs Satinder
Kaur @ Satwinder Kaur & ors.; AIR (2020) SC
3076
5. The New India Assurance Co. Ltd. Vs Smt.
Somwati & ors.; (2020) 9 SCC 644
6. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors.; 2021 SCC OnLine SC 822
5 All. Smt. Servesh Devi & Ors. Vs. Ankush Agarwal & Ors.
689
(Delivered by Hon'ble Salil Kumar Rai, J.)

1. This is a claimants' appeal under
Section 173 of the Motor Vehicles Act,
1988 (hereinafter referred to as, 'Act, 1988')
against the judgment and award dated
17.9.2015 passed by the Motor Accident
Claims
Tribunal,
Aligarh
in
Motor
Accident Claim Petition No. 460 of 2014
(Smt. Sarvesh Devi & Ors. vs. Ankush
Agarwal & Ors). The appeal is for
enhancement of compensation. The office
reports dated 16.12.2019, 24.3.2021 and
10.3.2022 state that notices by registered
post as well as ordinary post were issued to
the
opposite
parties
but
no
acknowledgment has been returned nor any
undelivered cover has been received back.
In view of the aforesaid, service of notice
on the opposite parties is deemed sufficient.
No one has put in appearance on behalf of
the opposite parties. No cross appeal or
cross objection has been filed by the
opposite parties who are the owners,
drivers and the Insurance Company.

2. The facts of the case are that Motor
Accident Claim Petition No. 460 of 2014
was instituted by the claimants- appellants
under Section 166 of the Act, 1988 alleging
that one Har Prasad, working as Raaj
Mistri, died in an accident caused due to
rash and negligent driving of vehicle, i.e.,
Truck No. U.P. 81 A.F.-3896 (hereinafter
referred to as, ''the offending vehicle') by its
driver. The accident happened on 21st
June, 2014 at 07:00 p.m. The appellant no.
1 is the wife of the deceased, the appellant
nos. 2 to 4 are the sons and daughter of the
deceased. The appellant nos. 2 to 4 were
minor at the time of the institution of the
claim petition. The appellant no. 5 is the
mother of the deceased. The appellant no. 5
died during the pendency of the case and
her legal representatives are already on
record as appellant nos. 1 to 4. The
opposite party no. 1 is the owner of the
vehicle, the opposite party no. 3 is the
driver of the vehicle and the opposite party
no. 2, i.e., Mega General Insurance
Company Limited is the insurer of the
offending vehicle. It was stated in the claim
petition that at the time of accident, the
deceased was 34 years old and earned
Rs.15,000/- per month and had no bad
habits. On the aforesaid facts, the claimants
claimed a compensation of Rs.31,10,000/-
with 12% interest from the date of accident.

3. In their written statements the
opposite parties denied that the accident
was caused due to rash and negligent
driving of the offending vehicle and
pleaded that the accident occurred due to
the negligence of the deceased. In its
written statement, the opposite party no. 2,
i.e., the Insurance Company denied the
factum of accident and also its liability to
pay compensation.

4. The Tribunal framed four Issues.
Issue no. 1 was regarding the factum of
accident and the negligence of the driver of
the offending vehicle in causing the
accident, Issue no. 2 was as to whether, at
the time of accident, the driver of the
offending vehicle had a valid driving
licence, Issue no. 3 was as to whether at the
time of accident, the offending vehicle was
insured with opposite party no. 2 and Issue
no. 4 was regarding the amount of
compensation payable to the claimants and
the defendant liable to pay compensation.

5. The Tribunal by its award dated
17.9.2015 decided Issue no. 1 in favour of
the claimants and held that Har Prasad had
died because of injuries caused in the
accident occurring due to rash and
negligent driving of the offending vehicle.
690 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue nos. 2 and 3 were decided in favour
of the owner of the vehicle, i.e., it was held
by the Tribunal that at the time of accident,
the driver of the offending vehicle had a
valid driving licence and the offending
vehicle was insured with opposite party no.
2, i.e., the Insurance Company. So far as
Issue no. 4 is concerned, the Tribunal
granted compensation of Rs. 4,40,000/-
with 7% simple interest from the date of
institution of the claim petition till the
payment of compensation on the notional
income of Rs.3,000/- per month after
deducting 1/4 as personal expenses of the
deceased. The Tribunal, while determining
the multiplicand, rejected the plea of the
claimants that future prospects had to be
added in the national income of the
deceased
while
determining
the
multiplicand. The Tribunal applied a
multiplier of 15 for determining the total
compensation
after
holding
that
the
deceased was 40 years old at the time of
accident.

6. As no cross appeal or cross
objection has been filed by the opposite
parties and no one has appeared on behalf
of the opposite parties to contest the
findings of the Tribunal, therefore, the
findings of the Tribunal on Issue nos. 1, 2
and 3 have become final.

7. The appeal is for enhancement of
compensation. It was argued by the counsel
for the claimants that the Tribunal has
wrongly determined the compensation on
the notional income of Rs.100/- per day. It
was argued that the accident occurred in
2014 and according to the judgment of this
Court in New India Assurance Co. Ltd. vs
Smt. Resha Devi & Ors. 2017 (3) ADJ
685, the multiplicand should have been
determined on a notional income of
Rs.200/- per day. It was further argued that
while quantifying the multiplicand, future
prospects were also to be added to the
notional income of the deceased. It was
also argued that the Tribunal has awarded a
very meager amount for loss of spousal
consortium and has erred in not grating any
compensation for loss of parental and filial
consortium to the claimant nos. 2 to 5. It
was further argued that under Rule 220-A
of the U.P. Motor Vehicle Rules, 1998
(hereinafter referred to as, ''Rules, 1998'),
the
claimants
were
also
entitled
to
compensation for loss of love and affection
and the compensation granted to the
claimants for funeral expenses is also not in
accordance with the judgment of the
Supreme Court in National Insurance
Company Ltd. vs Pranay Sethi & Ors.
(2017) 16 SCC 680.

8. The counsel for the appellants does
not challenge the findings of the Tribunal
regarding the age of the deceased which the
Tribunal held to be 40 years and has also
not challenged the deductions of 1/4 as
personal expenses of the deceased.

9. I have considered the submissions
of the counsel for the appellants and
perused the records.

10. A reading of the award of the
Tribunal and a perusal of the records
indicate that the claimants had pleaded that
before his death in the accident, the
deceased worked as Raj Mistri and was
earning Rs.15,000/- per month. However,
the claimants could not produce any
evidence to prove their plea that before his
death,
the
deceased
was
earning
Rs.15,000/- per month. In view of the
aforesaid, the compensation is to be
determined on the notional income of the
deceased. The Tribunal has determined the
notional income of the deceased as
5 All. Smt. Servesh Devi & Ors. Vs. Ankush Agarwal & Ors.
691
Rs.100/- per day, i.e., Rs.3,000/- per
month. In Smt. Resha Devi (supra), a
Division Bench of this Court held that the
notional income of unskilled labour cannot
be taken to be less than Rs.200/- per day
and the presumption of Rs.100/- per day as
notional income, even for an unskilled
labour in the year 2014, would be frugal
and by no stretch of imagination can be
considered to be just because even the
minimum wages fixed by the State
Government were much higher than that.
The observations of this Court in Paragraph
Nos. 9 to 11 are reproduced below :-

"9. The next submission of the
learned counsel for the appellant that
income of Rs.100/- per day presumed by
the tribunal is extremely on higher side is
without any force and not liable to be
accepted. Tribunal in recording the said
claim has relied upon the judgment of the
Hon'ble Apex Court in the case of Laxmi
Devi and another Vs. Mohammad Tabbar
and others, 2008 (2) TAC 394 SC wherein
notional income to unskilled labour was
presumed to be Rs.100/- per day. Much
water has flown since 2008. It is a matter
of common knowledge that with the rise
in
price
index,
there
has
been
considerable increase in the wages of
salaried as well as self employed person.
The average income of even a daily
labour in 2014 when the accident took
place cannot be presumed to be less than
Rs.200/- per day. In our considered
opinion,
the
tribunal
committed
a
manifest error of law in presuming the
notional income of the deceased to be
Rs.100/- per day.

10. In the case of Santosh Devi
Vs. National Insurance Company Limited
and others (2012) 6 SCC 421 in paragraph
17 of the reports has observed as under :

"17. Although the wages/income
of those employed in organised sectors has
not registered a corresponding increase
and has not kept pace with the increase in
the salaries of the government employees
and those employed in private sectors, but
it cannot be denied that there has been
incremental enhancement in the income of
those who are self-employed and even
those engaged on daily basis, monthly basis
or even seasonal basis. We can take
judicial notice of the fact that with a view
to meet the challenges posed by high cost
of living, the persons falling in the latter
category periodically increase the cost of
their labour. In this context, it may be
useful to give an example of a tailor who
earns his livelihood by stitching clothes. If
the cost of living increases and the prices
of essentials go up, it is but natural for him
to increase the cost of his labour. So will be
the cases of ordinary skilled and unskilled
labour, like, barber, blacksmith, cobbler,
mason, etc.

11. There can be no exact
uniform rule for measuring the value of the
human life and the measure of damages
cannot
be
arrived
at
by
precise
mathematical
calculations.
Obviously
award of damages would depend upon the
particular facts and circumstances of the
case but the element of fairness in the
amount of compensation so determined is
the ultimate guiding factor. In such view of
the matter, presumption of Rs.100/- per day
as notional income even for a unskilled
labour in the year 2014 appears to us to be
frugal and by no stretch of imagination to
be just even the minimum wages fixed by
the State Government is much higher than
that looking to the rise in cost index. We
are of the considered upon that notional
income of an unskilled labour could not be
less than Rs.200/- per day."
692 INDIAN LAW REPORTS ALLAHABAD SERIES

(Emphasis added)

11. In the present case also, the
accident occurred in 2014. Following the
judgment of the Division Bench of this
Court, it would be just and fair to treat the
notional income of the deceased as Rs.
200/- per day, i.e., Rs.6,000/- per month.

12. So far as future prospects are
concerned, apparently the award of the
Tribunal is contrary to the judgment of the
Supreme Court in Pranay Sethi (supra). In
Pranay Sethi (supra), it was held that if
the deceased was self-employed or on a
fixed salary, an addition of 25% should be
made in the established income of the
deceased to determine the multiplicand if
the deceased was between the age of 40 to
50 years. In Pranay Sethi (supra), the
Supreme Court held that there was no
rationale not to add future prospects in the
income of the self-employed or a person
who is on a fixed salary and such denial
would be unjust. In this context, the
observations of the Supreme Court in
Paragraph nos. 57 and 59.4 are reproduced
below :-

"57.
Having
bestowed
our
anxious consideration, we are disposed to
think when we accept the principle of
standardization, there is really no rationale
not to apply the said principle to the selfemployed or a person who is on a fixed
salary. To follow the doctrine of actual
income at the time of death and not to add
any amount with regard to future
prospects to the income for the purpose of
determination of multiplicand would be
unjust. The determination of income while
computing compensation has to include
future prospects so that the method will
come within the ambit and sweep of just
compensation as postulated under Section
168 of the Act. In case of a deceased who
had held a permanent job with inbuilt grant
of annual increment, there is an acceptable
certainty. But to state that the legal
representatives of a deceased who was on a
fixed salary would not be entitled to the
benefit of future prospects for the purpose
of computation of compensation would be
inapposite. It is because the criterion of
distinction between the two in that event
would be certainty on the one hand and
staticness on the other. One may perceive
that the comparative measure is certainty
on the one hand and uncertainty on the
other but such a perception is fallacious. It
is because the price rise does affect a selfemployed person; and that apart there is
always an incessant effort to enhance one's
income for sustenance. The purchasing
capacity of a salaried person on permanent
job when increases because of grant of
increments and pay revision or for some
other change in service conditions, there is
always a competing attitude in the private
sector to enhance the salary to get better
efficiency from the employees. Similarly, a
person who is self-employed is bound to
garner his resources and raise his
charges/fees so that he can live with same
facilities. To have the perception that he is
likely to remain static and his income to
remain
stagnant
is
contrary
to
the
fundamental concept of human attitude
which always intends to live with dynamism
and move and change with the time.
Though it may seem appropriate that there
cannot be certainty in addition of future
prospects to the existing income unlike in
the case of a person having a permanent
job, yet the said perception does not really
deserve acceptance. We are inclined to
think that there can be some degree of
difference as regards the percentage that is
meant for or applied to in respect of the
legal representatives who claim on behalf
5 All. Smt. Servesh Devi & Ors. Vs. Ankush Agarwal & Ors.
693
of the deceased who had a permanent job
than a person who is self-employed or on a
fixed salary. But not to apply the principle
of standardization on the foundation of
perceived
lack
of
certainty
would
tantamount to remaining oblivious to the
marrows of ground reality. And, therefore,
degree-test is imperative. Unless the
degree-test is applied and left to the parties
to adduce evidence to establish, it would be
unfair and inequitable. The degree-test has
to have the inbuilt concept of percentage.
Taking into consideration the cumulative
factors, namely, passage of time, the
changing society, escalation of price, the
change in price index, the human attitude
to follow a particular pattern of life, etc.,
an addition of 40% of the established
income of the deceased towards future
prospects and where the deceased was
below 40 years and an addition of 25%
where the deceased was between the age of
40 to 50 years would be reasonable.

58. The controversy does not end
here. The question still remains whether
there should be no addition where the age
of the deceased is more than 50 years.
Sarla Verma thinks it appropriate not to
add any amount and the same has been
approved in Reshma Kumari. Judicial
notice can be taken of the fact that salary
does not remain the same. When a person
is in a permanent job, there is always an
enhancement due to one reason or the
other. To lay down as a thumb rule that
there will be no addition after 50 years will
be an unacceptable concept. We are
disposed to think, there should be an
addition of 15% if the deceased is between
the age of 50 to 60 years and there should
be no addition thereafter. Similarly, in case
of self-employed or person on fixed salary,
the addition should be 10% between the
age of 50 to 60 years. The aforesaid
yardstick has been fixed so that there can
be consistency in the approach by the
tribunals and the courts.

59. In view of the aforesaid
analysis, we proceed to record our
conclusions:

59.1. The two-Judge Bench in
Santosh Devi should have been well
advised to refer the matter to a larger
Bench as it was taking a different view than
what has been stated in Sarla Verma, a
judgment by a coordinate Bench. It is
because a coordinate Bench of the same
strength cannot take a contrary view than
what has been held by another coordinate
Bench.

59.2. As Rajesh has not taken
note of the decision in Reshma Kumari,
which was delivered at earlier point of
time, the decision in Rajesh is not a binding
precedent.

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
694 INDIAN LAW REPORTS ALLAHABAD SERIES
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."
 (Emphasis added)

13. However, Rule 220-A (3) of the
Rules, 1998 provides that 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

(ii) Between 40-50 years of age :
30% of the salary

(iii) More than 50 years of age :
20% of the salary

(iv) When wages not sufficiently
proved. : 50% towards inflation and price
index.

14. The notional income of the
deceased is determined on the basis of
minimum wages and thus in accordance with
the Rules, 1998, 30% has to be added as
future prospects in the notional income of the
deceased while determining the multiplicand
as deceased was 40 years old.

15. The Supreme Court in Pranay Sethi
(supra) referred to only three conventional
heads, namely, loss of estate, loss of
consortium and funeral expenses while
determining the compensation payable under
the Act, 1988. In Pranay Sethi (supra), it
was further held that the compensation under
the aforesaid conventional heads should be
Rs.15,000/-, Rs.40,000/- and Rs.15,000/-,
respectively. However, in Magma General
Insurance Company Ltd. vs. Nanu Ram
2018 SCC OnLine SC 1546, the Supreme
Court awarded compensations for loss of love
and affection and for loss of consortium. The
compensation for loss of love and affection
was determined as Rs.50,000/- and the
compensation for loss of consortium, in
accordance with Pranay Sethi (supra), was
determined at Rs.40,000/-. The compensation
under the aforesaid heads and for the said
amount were paid separately to each of the
claimants by the Supreme Court. However,
subsequently, the Supreme Court in United
India Insurance Company Ltd. vs. Satinder
Kaur @ Satwinder Kaur & Ors., AIR (2020)
SC 3076 held that loss of love and affection
is included in loss of consortium and,
therefore, there is no justification to award
compensation towards loss of love and
affection as a separate head. The aforesaid
judgment was followed by the Supreme
Court in The New India Assurance
Company Ltd. vs. Smt. Somwati & Ors.,
(2020) 9 SCC 644. However, Rule 220-A(4)
of the Rules, 1998 provides for seperate
compensation for 'loss of love and affection'
and 'loss of consortium'. Rule 4 of the Rules,
1998 is reproduced below :-

(4) The non-pecuniary damages
shall also be payable in the compensation
as follow :-

(i) Compensation for loss of
estate : Rs. 5,000 to Rs. 10,000

(ii) Compensation for loss of
consortium : Rs. 5,000 to Rs. 10,000

(iii) Compensation for loss of
love and affection : Rs. 5,000 to Rs. 15,000

(iv) Funeral expenses costs of
transportation of body : Rs. 5,000 or actual
expenses whichever is less

(v)
5 All. Smt. Servesh Devi & Ors. Vs. Ankush Agarwal & Ors.
695

16. A reading of the judgments of the
Supreme Court in Satinder Kaur (supra)
and Smt. Somwati (supra) do not indicate
that Rules, 1998 were brought to the notice
of the Supreme Court in the aforesaid case.
The
Supreme
Court
in
New
India
Assurance Company Ltd. vs. Urmila
Shukla & Ors. 2021 SCC OnLine SC 822
has held that if an indicia is made available
in the form of a statutory instrument which
affords a favourable treatment, the decision
in Pranay Sethi (supra) cannot be taken to
have limited the operation of such statutory
provision especially when the validity of
the Rules was not put under any challenge.
It was further observed by the Supreme
Court that 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. The observations of the Court
from paragraphs 8 to 11 are reproduced
below :-

"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.

9. It is to be noted that the
validity of the Rules was not, in any way,
questioned in the instant matter and thus
the only question that we are called upon to
consider is whether in its application, subRule 3(iii) of Rule 220A of the Rules must
be given restricted scope or it must be
allowed to operate fully.

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 added)

17. In light of the judgment of the
Supreme Court in Urmila Shukla (supra)
read with Rules, 1998, it is held that the
claimants
were
entitled
to
separate
compensation for loss of consortium and
for loss of love and affection.

18. On applying the aforesaid
principles,
it
is
apparent
that
the
compensation awarded to the claimants by
the Tribunal is too meager and is to be
enhanced. The compensation payable to the
claimants is re-determined as follows :-
696 INDIAN LAW REPORTS ALLAHABAD SERIES

(1)
Notional
income
of
the
deceased = Rs.200/- per day, i.e., Rs.6,000/-
per month and Rs.72,000/- per annum.

(2) 1⁄4 deductions for the personal
and living expenses of the deceased =
Rs.18,000/- (72,000/4).

(3)
The
dependency
of
the
claimants on the deceased = Rs.54,000/-. (Rs.
72,000/- - Rs. 18,000/-)

(4) Future prospects = 30%, i.e.,
54,000 x 30% = Rs.16200/-.

(5) Thus, multiplicand = 54,000 +
16,200 = Rs.70,200/-.

(6) Applying the multiplier of 15,
the pecuniary damage would be = 70,200 x
15 = Rs.10,53,000/-.

(7)
Compensation
under
the
conventional heads -

(i) Loss of estate = Rs.15,000/-

(ii)
Funeral
expenses
=
Rs.15,000/-

(iii) Loss of filial consortium to
appellant no. 5 = Rs.40,000/-

(iv) Loss of spousal consortium to
appellant no. 1 = Rs.40,000/-

(v) Loss of parental consortium to
appellant nos. 2 to 4 = Rs. 40,000 x 3 =
Rs.1,20,000/- (Rs. 40,000/- each)

(vi) Loss of love and affection to
appellant nos. 1 to 5 = Rs. 50,000 x 5

19. Thus, the total compensation
payable to the claimants = Rs.15,33,000/-
.

20. It is held that the claimants are
entitled
to
a
compensation
of
Rs.15,33,000/- and the award of the
Tribunal is modified to the aforesaid extent.
The claimants shall be entitled to interest at
the rate of 7% per annum as awarded by the
Tribunal.

21. The balance amount / enhanced
compensation so far as pecuniary damages
and compensation for loss of estate and for
funeral expenses alongwith the interest on
the same. shall be paid to appellant no. 1
who is the widow of the deceased. The
appellant no. 1 shall also be entitled to get
the enhanced compensation awarded for
loss of spousal consortium and Rs.50,000/-
for loss of love and affection along with the
interest payable on the same. The appellant
nos. 2, 3 and 4 shall be entitled to
compensation for payment of loss of
parental consortium as awarded above and
for loss of love and affection as awarded
above, i.e., Rs.40,000/- and Rs.50,000/-
each under the aforesaid heads along with
the interest payable on the same. The
appellant no. 5 died during the pendency of
the present appeal and, therefore, the
compensation awarded to her for loss of
love and affection and for loss of
consortium along with the interest accruing
on the same shall be distributed equally
between respondent nos. 1 to 4.

22. The appeal is allowed and the
award of the Tribunal is modified to the
extent
indicated
above.
The
balance
amount / excess amount as awarded by this
Court in the present appeal shall be
deposited by the Mega General Insurance
Company Ltd., i.e., opposite party no. 2 in
the Tribunal within four months. The
amount so deposited by the Mega General
Insurance Company Ltd. under the present
order of this Court shall be deposited by the
5 All. Bhagwandas & Anr. Vs. Smt. Rammi Devi & Ors.
697
Motor Accident Claims Tribunal, Aligarh
in the highest interest bearing fixed deposit
schemes, either of the post office or of any
nationalized bank. The receipts of the fixed
deposit shall be handed over to the
appellant no. 1, who is also the guardian of
appellant nos. 2 to 4, who shall be entitled
to withdraw the maturity amount when the
fixed deposits mature. The maturity amount
shall be credited by the bank/post office in
any savings account of the appellants. The
concerned bank or post office shall not
permit any loan or advance against the
fixed deposits made in favour of the
appellants. The Tribunal, while depositing
the amount in any fixed deposit scheme,
shall communicate the directions issued by
this Court to the concerned bank/post
office.

23. With the aforesaid directions and
observations, the appeal is allowed. Parties
shall bear their own cost.

24. The office shall transmit the
records of the case to the Tribunal, at the
earliest.
----------
(2022)05ILR A697
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2022

BEFORE

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

First Appeal From Order No. 965 of 2021

Bhagwandas & Anr. ...Appellants
Versus
Smt. Rammi Devi & Ors. ...Respondents

Counsel for the Appellants:
Sri Surendra Pal, Sri S.P. Gangwar

Counsel for the Respondents:
Sri Ravinath Tiwari

A. Civil Law - Motor Accident Act, 1988 -
Claim - Involvement of offending vehicle
- Burden of proof, on whom lie - Held,
burden
of
proof
and,
particularly,
evidential burden, would lie upon the
claimants to adduce some evidence, on
the basis of which, a reasonable inference
about the offending vehicle's involvement
can be drawn - After some evidence by
the claimants is brought in to show the
involvement of the offending vehicle, of
course, the purpose and object of the
Motor Vehicles Act, insofar it relates to
accident claims, that is to secure just
compensation to the victim or victims of a
motor accident, would require a holistic
consideration of the evidence to find out if
the offending vehicle is indeed involved -
The owner of the offending vehicle,
particularly, that is not insured, or even
one that is insured, is not permitted to
raise
fanciful
doubts
about
the
involvement of a motor vehicle that has
apparently caused an accident, resulting
in injury to life or limb. (Para 13)
B. Motor Accident Claim - Involvement of
offending vehicle - Nine days Delay in
lodging of F.IR. - Impact on claimant's
case - Held, if the FIR belatedly reports an
accident, truthfully pointing out to the
identity of the offending vehicle, the
delayed registration of the FIR cannot be
a ground to doubt the veracity of the
claimants' case - But, at the root of the
inquiry,
lies
the
fact,
whether
the
claimants' version carried in the FIR and
the claim petition about the identity of the
offending vehicle is truthful and genuine.
In the present case, mostly, like many
other claims, there is an eye-witness
account - Held further, the evidence that
has come on record does not remotely
establish that it was the owner's vehicle,
that was involved in the accident - High
Court gave liberty to the claimant to claim
u/s 161 of M.VsAct. (Para 16, 17, 35 and
42)
C. Motor Accident Claim - Non-insurance
of the vehicle, alleged to be involved in