# Smt. Shail Kumari & Ors v. The New India General Insurance Co. Ltd. & Ors

- **Citation:** (2020) 10 ILRA 307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-14
- **Case number:** FAFO No. 841 of 2017
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shail-kumari-ors-v-the-new-india-general-insurance-co-ltd-ors-45207
- **Pages:** 5

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Section
166
-
Application
for
compensation - (National Insurance Co.
Ltd. v. Pranay Sethi, (2017) 16 SCC 680) -
various heads under which compensation
is to be awarded in a death case - loss of
consortium - consortium - a compendious
term
which
encompasses
"spousal
consortium", "parental consortium", and
"filial consortium"- right to consortium
would include the company, care, help,
comfort, guidance, solace and affection of
the deceased, which is a loss to his family
- With respect to a spouse, it would
include sexual relations with the deceased
spouse.(Para - 10)

Claimants-appellants filed a claim petition - under
Section 166 of the Motor Vehicles Act, 1988 - claim
for compensation to the tune of Rs. 25,06,000/-
along with interest was made - accident was
caused due to the rash and negligent driving of
the offending truck which was owned by
respondent no. 2. - At the time of his death, the
deceased was 35 years of age - earning a sum of
Rs. 6,000/- per month. (Para - 2)

HELD:- In view of the above, the compensation
to which the appellants are entitled is Rs.
7,46,800/- rounded off to Rs 7,50,000/-. Out of
the aforesaid amount of Rs. 7,46,800/-, a sum
of Rs 3,75,000/- shall be payable to the wife of
the deceased, Rs. 2,25,000/- shall be payable to
the minor son and the balance amount of Rs.
1,50,000/- shall be payable to the parents of the
deceased in equal proportion. In addition to the
amounts mentioned above, the appellants would
also be entitled to a sum of Rs. 40,000/- each
under the head of loss of consortium. The
appellants
would
also
be
entitled
to
proportionate interest at the rate of 7% per
annum on the above amounts, from the date of
filing of the claim petition till the date of actual
payment.(Para-13)

Out of Rs. 3,75,000/- awarded to wife, the
Tribunal shall keep Rs 2,00,000/- in a fixed
deposit in a nationalised bank, for a period of 5
years, giving highest rate of interest. The
interest payable on this amount shall be
released on quarterly basis to her. On maturity
of the fixed deposit, the maturity proceeds will
be paid to her.(Para-14)

First Appeal from order allowed.(E-7)

List of Cases Cited:-

## Text

10 All. Smt. Shail Kumari & Ors. Vs. The New India General Insurance Co. Ltd. & Ors.
307
her husband. This fact is not disputed by
the Respondents. In the circumstances, out
of the compensation awarded, Rs. 20,000/-
shall be payable to Phoolmati (Respondent
No. 1 herein) and the balance Rs.
1,80,000/- to Shalini (Respondent No. 2
herein) together with proportionate interest.

18. The appellant is directed to
deposit the said amount with interest at the
rate of 7% per annum from the date of the
claim petition till the date of deposit with
the Tribunal.

19. The appeal is allowed to the
extent mentioned above. No order as to
cost.
----------
(2020)10ILR A307
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.01.2020

BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.

FAFO No. 841 of 2017

Smt. Shail Kumari & Ors. ...Appellants
Versus
The New India General Insurance Co. Ltd.
& Ors. ...Respondents

Counsel for the Appellants:
Mukesh Singh

Counsel for the Respondents:
Ashok Kumar Rai, Ashok Mehrotra, Chandra
Shekhar Singh Yad, Rakesh K. Tripathi

(A) Civil Law - Motor Vehicles Act, 1988 -
Section
166
-
Application
for
compensation - (National Insurance Co.
Ltd. v. Pranay Sethi, (2017) 16 SCC 680) -
various heads under which compensation
is to be awarded in a death case - loss of
consortium - consortium - a compendious
term
which
encompasses
"spousal
consortium", "parental consortium", and
"filial consortium"- right to consortium
would include the company, care, help,
comfort, guidance, solace and affection of
the deceased, which is a loss to his family
- With respect to a spouse, it would
include sexual relations with the deceased
spouse.(Para - 10)

Claimants-appellants filed a claim petition - under
Section 166 of the Motor Vehicles Act, 1988 - claim
for compensation to the tune of Rs. 25,06,000/-
along with interest was made - accident was
caused due to the rash and negligent driving of
the offending truck which was owned by
respondent no. 2. - At the time of his death, the
deceased was 35 years of age - earning a sum of
Rs. 6,000/- per month. (Para - 2)

HELD:- In view of the above, the compensation
to which the appellants are entitled is Rs.
7,46,800/- rounded off to Rs 7,50,000/-. Out of
the aforesaid amount of Rs. 7,46,800/-, a sum
of Rs 3,75,000/- shall be payable to the wife of
the deceased, Rs. 2,25,000/- shall be payable to
the minor son and the balance amount of Rs.
1,50,000/- shall be payable to the parents of the
deceased in equal proportion. In addition to the
amounts mentioned above, the appellants would
also be entitled to a sum of Rs. 40,000/- each
under the head of loss of consortium. The
appellants
would
also
be
entitled
to
proportionate interest at the rate of 7% per
annum on the above amounts, from the date of
filing of the claim petition till the date of actual
payment.(Para-13)

Out of Rs. 3,75,000/- awarded to wife, the
Tribunal shall keep Rs 2,00,000/- in a fixed
deposit in a nationalised bank, for a period of 5
years, giving highest rate of interest. The
interest payable on this amount shall be
released on quarterly basis to her. On maturity
of the fixed deposit, the maturity proceeds will
be paid to her.(Para-14)

First Appeal from order allowed.(E-7)

List of Cases Cited:-

1. National Insurance Co. Ltd. Vs Pranay Sethi,
(2017) 16 SCC 680
308 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Hem Raj Vs Oriental Insurance Co. Ltd.,
(2018) 15 SCC 654

3. Magma General Insurance Co. Ltd. Vs Nanu
Ram, (2018) 18 SCC 130

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. The claimants-appellants have filed
this appeal against the judgment and award
dated 17.08.2017 passed by the Motor
Accident
Claims
Tribunal/
Additional
District Judge, Court No. 1, Faizabad in
Motor Accident Claim Case No. 147 of
2016 (Smt. Shail Kumari & Ors. v. The
New India Insurance Co. Ltd. & Ors.)
seeking enhancement of compensation.

2. On 10.04.2016, at 04.00 a.m. in the
morning, a mini truck bearing registration
No. UP 14AJ 1765 dashed against the truck
bearing registration no. UP 78T 1031 near
Prakash Hospital in village Tenua, Police
Station Haraiya, District Basti. As a result
of the said accident, Ram Jit Yadav and
Sanjiv Kumar Srivastava died on the spot.
The deceased, Sanjiv Kumar Srivastava,
was the husband of the appellant no. 1 and
father of appellant no. 2 and son of
appellant nos. 3 and 4 herein. The
claimants-appellants filed a claim petition
under Section 166 of the Motor Vehicles
Act, 1988 (for short the ''Act') against New
India
Insurance
Company
Limited,
respondent no. 1, the insurer of the
offending truck No. UP 78 T 1031, Yatish
Kumar Singh and Vishwanath, the owner
and driver of the offending truck, and Iffco
Tokio General Insurance Company Ltd.
respondent no. 2 herein the insurer of the
mini truck no. UP 14 AJ 1765. A claim for
compensation to the tune of Rs. 25,06,000/-
along with interest was made. They pleaded
that the accident was caused due to the rash
and negligent driving of the offending truck
which was owned by respondent no. 2. At
the time of his death, the deceased was 35
years of age and he was earning a sum of
Rs. 6,000/- per month. The claim was
contested by the respondents.

3. After analyzing the evidence on
record, the Tribunal held that the accident
was caused due to the rash and negligent
driving of truck no. UP 14AJ 1765. While
deciding the quantum of compensation, the
Tribunal arrived at the conclusion that the
income of the deceased was Rs. 4,000/- per
month. The Tribunal deducted 1/3rd of his
monthly income towards his personal living
and expenses and determined the loss of
earning to the family as Rs. 32,000/- per
annum. The Tribunal then applied the
multiplier of 16 and held that the claimants
were entitled to a sum of Rs. 5,12,000/- as
compensation.
The
Tribunal
further
awarded a sum of Rs. 10,000/- to the
appellant no. 1, wife of the deceased
towards loss of consortium. A sum of Rs.
5,000/- was awarded towards loss of estate
and Rs. 3,000/- towards funeral expenses.
The Tribunal awarded a total compensation
of Rs. 5,30,000/- along with interest at the
rate of 7% per annum from the date of the
claim petition till the time of actual
payment.

4. Sri Mukesh Singh, learned
counsel for the appellants has submitted
that the appellants were also entitled to
future prospects and the Tribunal has
committed a manifest error of law in not
awarding any amount under the said
head. It has been further submitted that
the
amount
awarded
under
the
conventional heads also deserves to be
enhanced. The determination of income,
the
deduction
regarding
living
and
personal expenses and the multiplier
applied by the Tribunal has not been
challenged by the appellants.
10 All. Smt. Shail Kumari & Ors. Vs. The New India General Insurance Co. Ltd. & Ors.
309

5. Sri Ashok Kumar Rai, learned
counsel for respondent no. 1 and Sri Ashok
Mehrotra, learned counsel for respondent
no. 2 have supported the impugned award.
No one appeared on behalf of respondent
nos. 3 and 4 in spite of sufficient service.

6. The questions regarding addition of
future prospects and the addition of nonpecuniary
damages
towards
loss
of
consortium, loss of estate and funeral
expenses are no more res integra. A
Constitution Bench of the Apex Court, in
National Insurance Co. Ltd. v. Pranay
Sethi,
(2017)
16
SCC
680,
has
comprehensively
laid
down
the
law
regarding these questions.

7. The Tribunal, in the present matter,
has not awarded any amount towards future
prospects. In Pranay Sethi (supra) the
Apex Court has held as under:

"56. .... 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 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
standardisation 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 an addition of 25% where
the deceased was between the age of 40 to
50
years
would
be
reasonable."
(emphasis supplied)

8. In Hem Raj v. Oriental Insurance
Co. Ltd., (2018) 15 SCC 654, the Apex
Court repelled the submission made on
behalf of the Insurance Company that in the
absence of actual evidence of income the
principle of granting compensation on
account of future prospects cannot be
applied where income is determined by
guesswork. It was held that there cannot be
any distinction between a case where there
is positive evidence of income and where
minimum
income
is
determined
on
guesswork.

9. In so far as conventional heads are
concerned, in Pranay Sethi (supra), the
Apex Court has held that as a rule of thumb
Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
are to be awarded towards loss of estate,
loss of consortium and funeral expenses
respectively.

10. In so far as consortium is
concerned the Apex Court in the case of
Magma General Insurance Co. Ltd. v.
Nanu Ram, (2018) 18 SCC 130 has
introduced the concept of spousal, parental
and filial consortium. The relevant portion
of the report is extracted below:

"21. A Constitution Bench of this
Court in Pranay Sethi dealt with the
various heads under which compensation is
to be awarded in a death case. One of these
heads is loss of consortium. In legal
parlance, "consortium" is a compendious
term
which
encompasses
"spousal
310 INDIAN LAW REPORTS ALLAHABAD SERIES
consortium", "parental consortium", and
"filial consortium". The right to consortium
would include the company, care, help,
comfort, guidance, solace and affection of
the deceased, which is a loss to his family.
With respect to a spouse, it would include
sexual relations with the deceased spouse:

21.1.
Spousal
consortium
is
generally defined as rights pertaining to the
relationship of a husband-wife which
allows compensation to the surviving
spouse for loss of "company, society,
cooperation, affection, and aid of the other
in every conjugal relation.

21.2.
Parental
consortium
is
granted to the child upon the premature
death of a parent, for loss of "parental aid,
protection, affection, society, discipline,
guidance and training.

21.3. Filial consortium is the right
of the parents to compensation in the case
of an accidental death of a child. An
accident leading to the death of a child
causes great shock and agony to the parents
and family of the deceased. The greatest
agony for a parent is to lose their child
during their lifetime. Children are valued
for their love, affection, companionship and
their role in the family unit.
* * *

24. The amount of compensation
to be awarded as consortium will be
governed by the principles of awarding
compensation under "loss of consortium"
as laid down in Pranay Sethi. In the present
case, we deem it appropriate to award the
father and the sister of the deceased, an
amount of Rs 40,000 each for loss of filial
consortium."(emphasis supplied)

11. In light of the above mentioned
principles, the compensation awarded by
the Tribunal needs to be determined again.

12. Since the age of the deceased was
less than 40 years, an addition of 40% of
the annual income should be made on
account of future prospects on the basis of
Pranay Sethi (supra). Taking the annual
income of Rs. 48,000/-, as determined by
the Tribunal, and adding 40% as future
prospects, we arrive at the sum of Rs.
67,200/-. After deducting 1/3rd of the
income, the contribution of the deceased to
his family is assessed as Rs. 44,800/- per
annum. By applying the multiplier of 16,
the loss of dependency is assessed as Rs.
44,800 x 16 = Rs. 7,16,800/-. In addition to
the above, the appellants are also entitled to
Rs. 15,000/- towards funeral expenses and
Rs. 15,000/- for loss of estate. Furthermore,
as per the judgment of the Apex Court in
Magma
General
Insurance
Co.
Ltd.
(supra), an amount of Rs. 40,000/- each is
payable to the appellant nos. 1 and 2
towards loss of spousal and parental
consortium respectively and Rs. 40,000/-
each to appellant nos. 3 and 4 towards filial
consortium.

13. In view of the above, the
compensation to which the appellants are
entitled is Rs. 7,46,800/- rounded off to Rs
7,50,000/-. Out of the aforesaid amount of
Rs. 7,46,800/-, a sum of Rs 3,75,000/- shall
be payable to the wife of the deceased, Rs.
2,25,000/- shall be payable to the minor son
and the balance amount of Rs. 1,50,000/-
shall be payable to the parents of the
deceased in equal proportion. In addition to
the amounts mentioned above, the appellants
would also be entitled to a sum of Rs.
40,000/- each under the head of loss of
consortium. The appellants would also be
entitled to proportionate interest at the rate of
7% per annum on the above amounts, from
the date of filing of the claim petition till the
date of actual payment.

14. Out of Rs. 3,75,000/- awarded to
wife, the Tribunal shall keep Rs 2,00,000/-
10 All. Kaptan Singh & Anr. Vs. Sri Raj Narayan & Anr.
311
in a fixed deposit in a nationalised bank, for
a period of 5 years, giving highest rate of
interest. The interest payable on this
amount shall be released on quarterly basis
to her. On maturity of the fixed deposit, the
maturity proceeds will be paid to her.

The Tribunal shall keep the entire
amount awarded to the minor son in a fixed
deposit in a nationalised bank, for a period
of 5 years, giving highest rate of interest.
The interest payable on this amount shall
be released on quarterly basis to the mother
of the child. The Tribunal shall keep
renewing the amount on these terms till the
minor attains majority.

15. In view of the above, the appeal is
allowed. The impugned judgment and
award stands modified to the above extent.

16. The parties shall bear their
respective costs.

17. The record of the case shall be
sent back to the Tribunal forthwith.
----------
(2020)10ILR A311
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2020

BEFORE
THE HON'BLE VIVEK AGARWAL, J.

FAFO No. 1360 of 2020

Kaptan Singh & Anr. ...Appellants
Versus
Sri Raj Narayan & Anr. ...Respondents

Counsel for the Appellants:
Sri Shreesh Srivastava

Counsel for the Respondents:
Sri Arvind Kumar

(A) Civil Law - Employees Compensation
Act, 1923 - Section 4(1B) - maximum
income to be computed for the purposes
of compensation - the Central Government
may,
by
notification
in
the
Official
Gazette, specify, for the purposes of subsection (1), such monthly wages in
relation to an employee as it may consider
necessary - effect of the notification is not
retrospective
but
prospective
.(Para2,3,5,6)

Claimants aggrieved by the award passed by the
Commissioner - ground - income of the
deceased construed at Rs. 8,000/- (eight
thousand rupees) per month - drawing a salary
to the tune of Rs. 12,000/- (twelve thousand
rupees) - tribunal not taken the income @
minimum wages as applicable on the date of the
accident for a skilled labourer i.e., @ Rs.
9,873.08/-
(nine
thousand
eight
hundred
seventy three rupees and eight paise) per
month.(Para-6)

HELD:- In the present case, accident took
place on 17.06.2019 and therefore, cap of Rs.
8,000/- (eight thousand rupees) per month as
prescribed by the Central Government vide S.O.
1258(E) dated 31st May, 2010 fixing monthly
wages @ Rs. 8,000/- (eight thousand rupees)
per month will be applicable .There is no
illegality or arbitrariness in the impugned award
in
not
computing
the
minimum
wages
prescribed by the State Government for the
purpose of calculation of compensation.(Para -
6)

First appeal from order dismissed. ( E-7)

List of Cases Cited:-

1. Kerala State Electricity Board & ors. Vs
Valsala K. & ors. , (1999) 8 SCC 254

2. K. Shivaraman & ors. Vs P. Sathishkumar &
anr. , (2020) 4 SCC 594

(Delivered by Hon'ble Vivek Agarwal, J.)

1. Heard Sri Shreesh Srivastava,
learned counsel for the appellants and Sri