# Smt. Shanti & Ors v. Anil Awasthi @ Anil Kumar Awasthi & Anr

- **Citation:** (2022) 7 ILRA 283
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-30
- **Case number:** First Appeal From Order No. 866 of 2011
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shanti-ors-v-anil-awasthi-anil-kumar-awasthi-anr-48884
- **Pages:** 24

## Headnote

(A) Civil Law - Motor Vehicles Act,
1988 - Sections 163-A, 168 - UP Motor
Vehicles
Rules,
1998
-
Rule-220A(2)(i), 220-A(3), 220-A(3)(iii), 220A(4)
-
Indian
Penal
Code,1860
-
Sections 279, 304-A, 427: - Claimants'
Appeals - seeking similar question of
quantum of compensation - six MACP
are filed by claimants against an
accident
in
question
-
awarded
separately - since, common questions
of facts like FIR, Charge sheet, DL, site
plan,
inquest
report
&
insurance
papers,
registration
certificate,
tax
receipts
of
offending
vehicle
and
question of law arises in all the
appeals
are
similar
-
as
such,
connected
&
heard
together
and
decided through a common judgment -
however, the distinguishing features of
each case in the matter of determining
the compensation. (Para - 5)
(B) Civil Law- Motor Vehicles Act, 1988 -
Section -163-A, 168 - UP Motor Vehicles
Rules, 1998 - Rule-220-A(2)(i), 220-A(3),
220-A(3)(iii), 220-A(4) - Indian Penal
Code, 1860 - Sections 279, 304-A & 427: -
Claimants'
Appeals
-
quantum
of
compensation - No cross appeals are filed
- no issue about factum of negligence,
accident, contributory negligence or the
liability of insurers - only single issue of
enhancement of award - in view of law
laid down by the by Apex Court, claimants
are entitled for consideration of their
claim for enhancement of compensation.
(Para 11)

(C) Civil Law - Motor Vehicles Act, 1988 -
Sections 163-A, 168 - UP Motor Vehicles
Rules, 1998 - Rule-220-A(2)(i), 220-A(3),
220-A(3)(iii), 220-A(4) - Indian Penal
Code,1860 - Sections 279, 304-A & 427 -
Claimants'
Appeals
-
quantum
of
compensation - there are three law points
would be considerable in these appeal
respectively i.e. (i) Whether awarded
compensation is requires scrutiny?, (ii)
Whether the tribunal was right in denying
any
compensation
towards
future
prospects?, (iii) Whether the award of
compensation
under
the
conventional
heads is in accordance with law? -
Determination of all law points - positively
- all appeals are allowed - claimants in
each of the appeals shall be entitled to
enhanced
compensation,
accordingly.
(Para 16, 72)

(D) Civil Law- Motor Vehicles Act, 1988 -
Section -163-A, 168 - UP Motor Vehicles
Rules, 1998 - Rule-220-A(2)(i), 220-A(3),
220-A(3)(iii), 220-A(4) - Indian Penal
Code,1860 - Sections - 279, 304-A & 427 -
Claimants'
Appeals
-
quantum
of
compensation - determination - question
of law regarding future prospects - there
is no scope to doubt that the principle
relating to future prospects are to be
determined in accordance with Rules of
1998 not in accordance with the decision
in Pranay Sethi's Case - as the Rules, 1998
afford better & greater benefits to the
claimants - claimants are entitled to
enhanced
compensation
-
in
their
284 INDIAN LAW REPORTS ALLAHABAD SERIES
respective appeals accordingly.(Para - 19,
20, 21, 22)

(E) Civil Law - Motor Vehicles Act, 1988 -
Sections 163-A, 168 - UP Motor Vehicles
Rules, 1998 - Rule-220-A(2)(i), 220-A(3),
220-A(3)(iii), 220-A(4) - Indian Penal
Code,1860 - Sections 279, 304-A & 427 -
Claimants'
Appeals
-
quantum
of
compensation - determination - question
of
law
regarding
deduction
towards
personal
expenses
-
it
would
be
admissible/based on the decision of the
Supreme Court in 'Sarla Verma' & 'Pranay
Shethi's
&
'Satinder
Kaur's'
cases
-
claimants
are
entitled
to
enhanced
compensation
accordingly,
in
their
respective appeals.(Para - 25, 26)

(F) Civil Law- Motor Vehicles Act, 1988 -
Sections 163-A & 168 - UP Motor
Vehicles Rules, 1998 - Rule-220-A(2)(i),
220-A(3),
220-A(3)(iii),
220-A(4)
-
Indian Penal Code,1860 - Sections 279,
304-A & 427 - Claimants' Appeals -
quantum
of
compensation
-
determination so far as compensation
towards Conventional Heads - court is of
opinion that what is to be awarded for
loss
of
estate,
loss
of
consortium,
funeral
expenses,
loss
of
filial
consortium etc - held, to be entitled
thereof - as per law laid down by the
constitution
bench
of
Hon'ble
Apex
Court in 'Pranay

## Text

_Characters 0–39,868 of 80,875. This is a partial read: ask again with offset=39868 for what follows._

7 All. Smt. Shanti & Ors. Vs. Anil Awasthi @ Anil Kumar Awasthi & Anr.
283
realization. The inter se apportionment of
compensation and the other directions
made by the Tribunal shall remain intact.
----------
(2022)07ILR A283
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2022

BEFORE

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

First Appeal From Order No. 866 of 2011
Connected with
First Appeal From Order Nos. 867 of 2011, 868
of 2011, 869 of 2011, 870 of 2011, & 871 of
2011

Smt. Shanti & Ors. ...Appellants
Versus
Anil Awasthi @ Anil Kumar Awasthi & Anr.
 ...Respondent

Counsel for the Appellants:
Balendu Shekhar, Prakash Chandra

Counsel for the Respondent:
A.K. Shukla, Anil Srivastava

(A) Civil Law - Motor Vehicles Act,
1988 - Sections 163-A, 168 - UP Motor
Vehicles
Rules,
1998
-
Rule-220A(2)(i), 220-A(3), 220-A(3)(iii), 220A(4)
-
Indian
Penal
Code,1860
-
Sections 279, 304-A, 427: - Claimants'
Appeals - seeking similar question of
quantum of compensation - six MACP
are filed by claimants against an
accident
in
question
-
awarded
separately - since, common questions
of facts like FIR, Charge sheet, DL, site
plan,
inquest
report
&
insurance
papers,
registration
certificate,
tax
receipts
of
offending
vehicle
and
question of law arises in all the
appeals
are
similar
-
as
such,
connected
&
heard
together
and
decided through a common judgment -
however, the distinguishing features of
each case in the matter of determining
the compensation. (Para - 5)
(B) Civil Law- Motor Vehicles Act, 1988 -
Section -163-A, 168 - UP Motor Vehicles
Rules, 1998 - Rule-220-A(2)(i), 220-A(3),
220-A(3)(iii), 220-A(4) - Indian Penal
Code, 1860 - Sections 279, 304-A & 427: -
Claimants'
Appeals
-
quantum
of
compensation - No cross appeals are filed
- no issue about factum of negligence,
accident, contributory negligence or the
liability of insurers - only single issue of
enhancement of award - in view of law
laid down by the by Apex Court, claimants
are entitled for consideration of their
claim for enhancement of compensation.
(Para 11)

(C) Civil Law - Motor Vehicles Act, 1988 -
Sections 163-A, 168 - UP Motor Vehicles
Rules, 1998 - Rule-220-A(2)(i), 220-A(3),
220-A(3)(iii), 220-A(4) - Indian Penal
Code,1860 - Sections 279, 304-A & 427 -
Claimants'
Appeals
-
quantum
of
compensation - there are three law points
would be considerable in these appeal
respectively i.e. (i) Whether awarded
compensation is requires scrutiny?, (ii)
Whether the tribunal was right in denying
any
compensation
towards
future
prospects?, (iii) Whether the award of
compensation
under
the
conventional
heads is in accordance with law? -
Determination of all law points - positively
- all appeals are allowed - claimants in
each of the appeals shall be entitled to
enhanced
compensation,
accordingly.
(Para 16, 72)

(D) Civil Law- Motor Vehicles Act, 1988 -
Section -163-A, 168 - UP Motor Vehicles
Rules, 1998 - Rule-220-A(2)(i), 220-A(3),
220-A(3)(iii), 220-A(4) - Indian Penal
Code,1860 - Sections - 279, 304-A & 427 -
Claimants'
Appeals
-
quantum
of
compensation - determination - question
of law regarding future prospects - there
is no scope to doubt that the principle
relating to future prospects are to be
determined in accordance with Rules of
1998 not in accordance with the decision
in Pranay Sethi's Case - as the Rules, 1998
afford better & greater benefits to the
claimants - claimants are entitled to
enhanced
compensation
-
in
their
284 INDIAN LAW REPORTS ALLAHABAD SERIES
respective appeals accordingly.(Para - 19,
20, 21, 22)

(E) Civil Law - Motor Vehicles Act, 1988 -
Sections 163-A, 168 - UP Motor Vehicles
Rules, 1998 - Rule-220-A(2)(i), 220-A(3),
220-A(3)(iii), 220-A(4) - Indian Penal
Code,1860 - Sections 279, 304-A & 427 -
Claimants'
Appeals
-
quantum
of
compensation - determination - question
of
law
regarding
deduction
towards
personal
expenses
-
it
would
be
admissible/based on the decision of the
Supreme Court in 'Sarla Verma' & 'Pranay
Shethi's
&
'Satinder
Kaur's'
cases
-
claimants
are
entitled
to
enhanced
compensation
accordingly,
in
their
respective appeals.(Para - 25, 26)

(F) Civil Law- Motor Vehicles Act, 1988 -
Sections 163-A & 168 - UP Motor
Vehicles Rules, 1998 - Rule-220-A(2)(i),
220-A(3),
220-A(3)(iii),
220-A(4)
-
Indian Penal Code,1860 - Sections 279,
304-A & 427 - Claimants' Appeals -
quantum
of
compensation
-
determination so far as compensation
towards Conventional Heads - court is of
opinion that what is to be awarded for
loss
of
estate,
loss
of
consortium,
funeral
expenses,
loss
of
filial
consortium etc - held, to be entitled
thereof - as per law laid down by the
constitution
bench
of
Hon'ble
Apex
Court in 'Pranay Shethi's as well as
Magma General Insurance Co. Ltd. Cases
- since Pranay Sethi would prevail over
that under the Rules of 1998 - each of
claimants
are
entitled
to
enhanced
compensation - in respective appeals,
accordingly.(Para - 28, 29, 30, 31)

Appeal Allowed. (E-11)

List of Cases cited: -

1. National Insurance Co. Vs Pranay Sethi &
ors., (2017) 16 SCC 680

2. Sarla Verma Vs DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri)
1002

3. New India Assurance Co. Ltd Vs Urmila
Shukla & ors., 2021 SCC OnLine SC 822

4. Sushil Kumar & ors. Vs M/s. Sampark Lojastic
Pvt. Ltd. & ors., F.A.F.O. No. 2581 of 2011,
decided on 26.04.2017

5. United India Insurance Co. Ltd. Vs Satinder
Kaur @ Satwinder Kaur & ors., 2020 SCC OnLine
SC 410

6. Magma General Insurance Co. Ltd. Vs Nanu
Ram @ Chuhru Ram & ors., (2018) 18 SCC 130

7. Kurvan Ansari alias Kurvan Ali & anr. Vs
Shyam Kishore Murmu & anr., (2022) 1 SCC 317

8. Roop Lal & anr. Vs Suresh Kumar Yadav &
ors., 2022 SCC OnLine All 25.

9. Jiuti Devi & ors. Vs Manoj Kumar Rai & ors.,
2022 SCC OnLine All 46

(Delivered by Hon'ble J.J. Munir, J.)

This judgment will dispose of the
present appeal and connected Appeal Nos.
867 of 2011, 868 of 2011, 869 of 2011, 870
of 2011 and 871 of 2011.

2. This appeal arises out of a
judgment and award of Mr. Balendu Singh,
Motor Accident Claims Tribunal/Additional
District Judge, Court No. 1, Lucknow dated
26.10.2010 passed in Motor Accident
Claim Petition No. 141 of 2005.

3. The appeal has been preferred by
the claimants, who seek enhancement of
the compensation awarded by the Tribunal.
The claimants are the dependents of one
Keshan (Krishna), who died in a motor
accident on March the 8th, 2005 at about 5
O' Clock in the morning at a place beyond
Bhitariya
near
Badaila-Narayanpur
Chauraha, falling within the local limits of
P.S. Ramsanehi Ghat in the District of
Barabanki. According to the claimants, the
7 All. Smt. Shanti & Ors. Vs. Anil Awasthi @ Anil Kumar Awasthi & Anr.
285
deceased had boarded a tractor trolley,
bearing Registration No. U.P. 78 A-9585,
along with other natives of the village to do
darshan of Mahadeva at Barabanki. On way
to destination on the date, time and place
indicated, the passengers on board the
tractor trolley got down to answer the
nature's call, the tractor trolley being
parked on the left hand side of the road.
Some passengers proceeded to the nearby
fields and some stayed on board. There
were still others, who de-boarded, but stood
about the parked vehicle. At that time, a
DCM truck bearing Registration No. U.P.
78 AN 4185, proceeding from the opposite
direction, driven rashly and negligently, hit
the stationary tractor trolley. The right side
of the tractor trolley was damaged. In
consequence of the accident, the deceased
suffered serious injuries, of which he died.

4. A first information report of the
accident was lodged with the Police by one
Krishna Pal Singh, a passenger on board
the ill-fated tractor trolley, on 8th March,
2005 at about 05:45 a.m. The information
was registered as Case Crime No. 106 of
2005, under Sections 279, 304-A, 427 IPC,
P.S. Ramsanehi Ghat, District Barabanki
against the unknown driver of the DCM
truck. This was so because after the
accident,
the
offending
truck
was
apprehended but the driver made good his
escape. The inquest and autopsy of the dead
body was done in accordance with law and
the Police, after investigation, filed a
charge-sheet against the driver of the
offending vehicle, Suresh Kumar Mishra.
The Police, as part of the case diary, also
drew up a site plan of the accident.

5. Besides MACP No. 141 of 2005
giving rise to the present appeal, MACP
Nos. 142 of 2005 to 146 of 2005 were filed
by the dependents of the other deceasedvictims of the aforesaid accident. All the
claim petitions were tried together and
decided by separate judgments and awards,
all dated 26.10.2010 passed by the same
Tribunal. The connected Appeal Nos. 867
of 2011 to 871 of 2011 arise out of the
judgments and awards passed in the claim
petitions instituted by the dependents of the
other victims of the accident. Since
common questions of fact and law arise in
all the appeals, these were connected, heard
together and are being decided by a
common judgment, as already said. FAFO
No. 866 of 2011 shall be treated as the
leading case. However, the distinguishing
features of each case in the matter of
determining the compensation shall be
indicated
during
the
course
of
this
judgment.

6. Heard Mr. Balendu Shekhar,
learned counsel for the appellants and Mr.
Anil
Srivastava,
learned
counsel
for
respondent no. 2, United India Insurance
Company Ltd. in the leading case and in all
connected appeals, where parties are
identically arrayed. The appellants shall
hereinafter be referred to as the ''claimants',
whereas
the
United
India
Insurance
Company-respondent no. 2 shall be called
the ''Insurance Company'. In the claim
petition giving rise to the leading appeal,
the owner of the offending truck, Anil
Awasthi was arrayed as opposite party no.
1. Anil Awasthi, the owner of the vehicle
shall hereinafter be referred to as the
''owner'.

7. A written statement was filed on
behalf of the owner, who has generally
denied the case in the claim petition in
almost evasive terms, but pleaded that the
offending vehicle was in his registered
ownership and that it was duly insured with
the Insurance Company. It was not
286 INDIAN LAW REPORTS ALLAHABAD SERIES
seriously pleaded that the offending vehicle
was not involved in the accident but a clear
case was set up that the liability, if any,
adjudged by the Tribunal would fall on the
shoulders of the Insurance Company. A
separate written statement was filed on
behalf of the Insurance Company, which
wholesomely and specifically denied the
case in the claim petition - the factum of
accident and their liability under the law to
indemnify. Defences of fact and law were
raised by the Insurance Company, including
those regarding the validity of the driver's
licence on the date of accident, as also the
validity of the offending vehicle's permit,
registration papers and fitness certificate.
The following issues were framed by the
Tribunal in the claim petition giving rise to
the leading appeal (translated from Hindi
into English):-

(1) Whether on 08.03.2005 at 05:00 O'
Clock in the morning at a place ahead of
Bhitariya
near
Badaila-Narayanpur
Crossing within the local limits of P.S.
Ramsanehi Ghat, District Barabanki, the
driver of truck DCM No. U.P. 78 AN 4185,
driving it rashly and negligently, hit the
stationary tractor trolley, leading to severe
injuries suffered by Keshan (Krishna), who
was standing near it and in consequence
whereof he died?

(2) Whether at the time of accident,
the driver of truck DCM No. U.P. 78 AN
4185 had a valid and effective driving
licence?

(3) Whether at the time of accident,
truck DCM No. U.P. 78 AN 4185 was
insured with opposite party no. 2, United
India Insurance Company Ltd. and driven
according to the conditions of the policy?

(4) Whether the accident occurred on
account of contributory negligence of the
driver of the DCM truck and that of the
tractor?

(5) Are the claimants entitled to any
relief? If yes, to what sum of money and
from which opposite party?

8. The claimants in all the appeals
filed copies of the FIR, relative inquests,
the postmortem reports, copy of the charge
sheet filed against the driver of the
offending vehicle and the site plan. Besides
these documents, copies of the insurance
cover/policy, the registration certificate,
additional tax receipt relating to the
offending vehicle and the driving licence of
the driver thereof were all filed by Anil
Awasthi, the owner.

9. PW-1 Bhaiya Lal was examined to
prove the occupation, age and monthly
income of the deceased, whereas PW-2
Sumat Lal was examined to prove the
factum of accident. Sumat Lal is an eye
witness and was a passenger on board the
ill-fated tractor trolley. No oral evidence
was admittedly led on behalf of the
Insurance Company or the owner of the
offending vehicle. It must be remarked here
that in all the connected appeals, there are
identical issues and similar evidence
recorded, where Sumat Lal is a common
witness about the accident. PW-1 differs in
each case and is either the father or the son
of the deceased concerned, examined to
prove the occupation, age, income and
other relevant facts about the deceased,
necessary to work out the dependency.

10. Issue nos. 2 and 3 regarding the
validity of the driving license and the
insurance cover were not pressed by the
insurance company at the hearing of the
claim petition. Issue nos. 1 and 4 were
answered in favour of claimants and
against the Insurance Company. A sum of
Rs. 4,41,500/- was awarded in favour of the
claimant in the leading appeal with simple
7 All. Smt. Shanti & Ors. Vs. Anil Awasthi @ Anil Kumar Awasthi & Anr.
287
interest @ 6% per annum from the date of
institution of the claim petition and
compensation directed to be paid within 30
days of the date of award. In the event of
default, the Tribunal directed 9% simple
interest per annum to be paid to the
claimants.
There
are
some
ancillary
directions in the award as regards the inter
se share of the claimants, besides its
investment with a nationalized bank in an
interest bearing account for a period of five
years.

11. In all other appeals, different sums
of money towards compensation have been
awarded to the respective claimants. In all
cases, the liability has been fastened upon
the Insurance Company to satisfy the
award. The claimants are disillusioned by
the quantum of compensation awarded and
have, therefore, appealed. No cross appeal
has been preferred on behalf of the
Insurance Company. In the present appeal
and the connected appeals, there appears to
be no issue about the factum of negligence,
the accident, the contributory negligence or
the liability of the Insurance Company. The
only issue that arises for consideration in
the leading appeal, as well as connected
appeals,
is
about
the
quantum
of
compensation to which the claimants are
entitled.

12. Learned counsel for the claimants,
Mr. Balendu Shekhar has assailed the
award, saying that compensation is far from
adequate. It is, according to Mr. Shekhar,
not a just award. He has particularly
emphasized that the future prospects of the
deceased have not at all been taken into
consideration by the Tribunal and a
deduction of 1/3rd has been made in each
case towards personal expenses without
reference to the number of dependents. He
has also assailed the award for the quantum
of compensation under the conventional
heads of consortium, loss of estate and
funeral expenses. Learned counsel for the
claimants in support of his contention on
the above score has placed reliance upon
the decision of the Constitution Bench of
the Supreme Court in National Insurance
Company v. Pranay Sethi and others,
(2017) 16 SCC 680.

13. Mr. Anil Srivastava, learned
counsel for the Insurance Company, on the
other hand, has supported the award saying
that just compensation has been ordered.

14. It would now be apposite to deal
with the facts of each of the appeals,
commencing with the leading case, in order
to determine the validity of the award vis-avis the compensation awarded.

15. In the leading case, the deceased
Keshan alias Krishna is survived by five
dependents, to wit, his widow Smt. Shanti,
two minor children, a son named Sumer
and a daughter Km. Manisha aged 4 years
and 6 months, respectively at the time the
cause of action arose. Bhaiya Lal and Smt.
Devrati, are the deceased's father and
mother, respectively. The deceased's widow
was aged 23 years, his father, 55 and
mother 48. The deceased was aged 25
years. The deceased was a labourer and the
Tribunal, going by the rate of daily-wages
earned at the relevant time, determined the
deceased's income at a figure of Rs. 3000/-
as against Rs. 4000/- claimed. A deduction
of 1/3rd was ordered towards the money
that the deceased would spend on himself.
The annual dependency was determined at
a sum of Rs. 24,000/- and applying the
multiplier of 18, the Tribunal worked out
the substantive compensation in the sum of
Rs. 4,32,000/- (other than conventional
heads). Under the conventional heads a
288 INDIAN LAW REPORTS ALLAHABAD SERIES
sum of Rs. 5000/- was awarded to the
widow towards loss of consortium, Rs.
2000/- towards funeral expenses and Rs.
2500/- towards loss of estate. Thus, the
total compensation worked out is a figure
of Rs.4,41,500/-.

16. Considering the submissions
advanced by the learned counsel for the
parties, there are three points on which the
awarded compensation requires scrutiny
and a just award made. It is to be seen
whether the Tribunal was right in denying
any compensation towards future prospects
and that if the Tribunal was right in
directing a deduction of 1/3rd of the
deceased's income, given the number of his
family members. It is also to be seen
whether the award of compensation under
the conventional heads is in accordance
with law. The law regarding future
prospects was summarized by the Supreme
Court in Pranay Sethi (supra), where it is
held:

"56. The seminal issue is the fixation
of future prospects in cases of deceased
who are self-employed or on a fixed salary.
Sarla Verma [Sarla Verma v. DTC, (2009) 6
SCC 121 : (2009) 2 SCC (Civ) 770 : (2009)
2 SCC (Cri) 1002] has carved out an
exception permitting the claimants to bring
materials on record to get the benefit of
addition of future prospects. It has not, per
se, allowed any future prospects in respect
of the said category.

57. Having bestowed our anxious
consideration, we are disposed to think
when
we
accept
the
principle
of
standardisation, 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
7 All. Smt. Shanti & Ors. Vs. Anil Awasthi @ Anil Kumar Awasthi & Anr.
289
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 of the deceased who had a
permanent job than a person who is selfemployed 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.

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
[Sarla Verma v. DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri)
1002] thinks it appropriate not to add any
amount and the same has been approved
inReshma Kumari [Reshma Kumari v.
Madan Mohan, (2013) 9 SCC 65 : (2013) 4
SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] .
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."

17. The question whether future
prospects are to be awarded in accordance
with the principle laid down in Pranay
Sethi or Rule 220-A(3) of the Uttar
Pradesh Motor Vehicles Rules, 1998 (for
short, the Rules of 1998) fell for
consideration of the Supreme Court in New
India Assurance Co. Ltd v. Urmila
Shukla and others, 2021 SCC OnLine SC
822. The said appeal arose out of a decision
of this Court, and, therefore, there is not the
slightest doubt that the principle there
squarely applies to the determination of
future prospects in the State of U.P. In
Urmila Shukla (supra), the question that
arose
for
consideration
before
their
Lordships is set forth in paragraph no. 4 of
the report. It reads:

"4. The basic ground of challenge by
the appellant is that sub-rule 3(iii) of Rule
220A is contrary to the conclusions arrived
at by the Constitution Bench of this Court
in National Insurance Company Ltd v.
Pranay Sethi reported in (2017) 16 SCC
680."

18. In the case of Urmila Shukla, it
was held :

"9. It is to be noted that the validity of
the Rules was not, in any way, questioned
290 INDIAN LAW REPORTS ALLAHABAD SERIES
in the instant matter and thus the only
question that we are called upon to consider
is whether in its application, sub-Rule 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
inPranay Sethiwas 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
inPranay Sethicannot 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 inPranay Sethicannot 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.

12.
We,
therefore,
reject
the
submission advanced on behalf of the
appellant and affirm the view taken by the
Tribunal as well as the High Court and
dismiss this appeal without any order as to
costs."

19. There is thus no cavil that in the
State of U.P., so long as Rule 220-A(3) is
on the statute-book, future prospects have
to be determined according to the Rules of
1998
and
not
by
the
figures
for
determination thereof as laid down in
Pranay Sethi.

20. There is one more question that
arises for consideration. The question is
whether Rule 220-A (3) of the Rules of
1998, that was inserted by Notification No.
777/XXX-4-2011-4(3)-2010
dated
26
September, 2011 (Eleventh Amendment)
Rules, 2011, would apply retrospectively to
an accident like the one here, that happened
much prior to the introduction of Rule 220A of the Rules of 1998. Here, the accident
is one that took place on 08.03.2005. The
said question fell for consideration before a
Division Bench of this Court in F.A.F.O.
No. 2581 of 2011, Sushil Kumar and
others v. M/s. Sampark Lojastic Private
Limited
and
others,
decided
on
26.04.2017. In Sushil Kumar (supra), it
was held by their Lordships of the Division
Bench :

"30. Rule 220-A was inserted in the
Uttar Pradesh Motor Vehicles Rules, 1998
in view of the various decisions of the law
courts for providing benefit on account of
future prospects of the injured/deceased. It
provides for addition of certain percentage
of the income of the injured/deceased in his
actual income depending upon the age of
the injured/deceased for the purposes of
determination of the compensation. The
aforesaid Rule came into effect on
26.09.2011 after the decision of the claim
petition but before filing of the appeal
though
the
accident
took
place
on
08.05.2010 much before the enforcement of
the above Rule.

31. It is in view of the above that an
argument is being raised that Rule 220-A of
the Rules which came into effect on
26.09.2011 would not apply to the accident
which had taken place on 08.05.2010.

32. In Ram Sarup Vs. Munshi AIR
1963 SC 553 it was laid down that a change
in law during the pendency of an appeal
7 All. Smt. Shanti & Ors. Vs. Anil Awasthi @ Anil Kumar Awasthi & Anr.
291
has to be taken into account and will cover
the rights of the parties.

33. The view expressed above was
followed by the Supreme Court in Mula Vs.
Godhu AIR 1971 SC 89.

34. In Dayawati Vs. Inderjit AIR 1966
SC 1423 the court had observed as under:-
If the new law speaks in language, which
expressly or by clear intendment, takes in
even pending matters, the court of trial as
well as the court of appeal must have
regard to an intention so expressed, and the
court of appeal may give effect to such a
law even after the judgment of the court of
first instance.

35. In Amarjit Kaur Vs. Pritam Singh
AIR 1974 SC 2068 effect was given to the
change in law during the pendency of an
appeal as the hearing of an appeal under the
procedural law of this country is in the
nature of rehearing of the suit by superior
court.

36. It was in the light of the above
decisions that in Lakshmi Narayan Guin
and others Vs. Niranjan Modak AIR 1985
SC 111 it was held that a change in law
during the pendency of an appeal has to be
taken into account and will cover the right
of the parties.

37. The
aforesaid
decision
was
followed by a Division Bench of this court
in U.P. State Road Transport Corporation
Vs. Smt. Madhu Sharma and others, 2003
(4) AWC 2620 which was a case in relation
to the provisions of the Motor Vehicles Act
and it was observed that it is apparent that
the change in law during the pendency of
the original proceedings has to be taken
into account so as to cover the rights of the
parties.

38. In view of above decision the view
expressed by the Division Bench of this
court in ICICI Lombard (Supra) is not of
good law as it does not takes into account
the decisions referred to above in holding
that the Rule 220-A of the Rules which
came into effect on 26.09.2011 would not
apply to the accident that took place prior
to the said date only for the reason that the
Rule was not specifically stated to be
retrospective in nature."

21. Nothing has been brought to the
notice of this Court that the decision of the
Division Bench in Sushil Kumar has been
expressly or impliedly overruled by a larger
Bench or by their Lordships of the Supreme
Court. The said decision still, therefore,
continues to hold the field and is binding
on this Court. Thus, there is no scope to
doubt the principle relating to future
prospects that are to be determined in
accordance with Rule 220-A (3) of Rules of
1998.

22. It must also be remarked that for
the same reason, whatever issues are
governed by Rule 220-A would be dealt
with according to its provisions and not in
accordance with the decision in Pranay
Sethi, insofar as the Rules of 1998 'afford
better or greater benefit' to the claimants, to
borrow the expression of their Lordships in
Urmila Shukla.

23. Rule 220-A of the Rules of 1998
reads:

220-A.
Determination
of
Compensation-

(1) X X X

(2) X X X
(3) The 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 :
30% of the
292 INDIAN LAW REPORTS ALLAHABAD SERIES
years of age
salary
(iii)
 More
than
50
years
:
20% of the
salary
(iv)
 When wages not
sufficiently
proved
:
50%
towards
inflation
and
price
index.

24. Going by the aforesaid position
of law, it is evident that the deceased, a
self-employed man well below the age of
40 years, would entitle his dependents, that
is to say, the claimants, to add 50% to his
income by way of future prospects.

25. Again, the deduction of that part
of
the
deceased's
income
from
the
claimants dependency that he would have
spent on himself, or so to speak, his
personal expenses, in the opinion of this
Court ought to be 1/4th, and not 1/3rd as
directed by the Tribunal. This deduction
towards personal expenses of the deceased
is based on the decision of the Supreme
Court in Sarla Verma (Smt.) and others
vs. Delhi Transport Corporation and
another, (2009) 6 SCC 121 that has been
followed and approved by the Constitution
Bench of the Supreme Court in Pranay
Sethi, and, later on, followed in United
India Insurance Company Ltd. vs.
Satinder Kaur alias Satwinder Kaur and
others, 2020 SCC OnLine SC 410. In
Sarla Verma (supra), it has been held :

"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 [(1996) 4
SCC 362], the general practice is to apply
standardised 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 one-third (1/3rd) where the number of
dependent family members is 2 to 3, onefourth (1/4th) where the number of dependent
family members is 4 to 6, and one-fifth
(1/5th) where the number of dependent
family members exceeds 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 non-earning sisters or brothers, his
personal and living expenses may be
restricted to one-third and contribution to the
family will be taken as two-third."

26. It must be noticed that the scale
regarding deduction towards personal and
7 All. Smt. Shanti & Ors. Vs. Anil Awasthi @ Anil Kumar Awasthi & Anr.
293
living expenses of a married person under
Rule 220-A(2)(ii) is also the same as in
Sarla Verma.

27. This Court notices that the
deceased has left behind five dependents,
all of whom have claimed. There is no case
that the deceased's parents were not
dependent
upon
him.
In
usual
circumstances, the father would have to be
left out of the count of dependents
assuming that he would have an income of
his own, or else, the claimants would have
to be burdened with the onus of producing
evidence that he was dependent upon the
deceased. Here, however, it is noticed that
the father is 55 years old and the deceased
was a labourer, a young man of 25 years,
who was providing for the entire family.
Considering the two minors to be a unit of
one, the widow and the deceased's father
and mother would make for a total of four
dependents. In the circumstances, the
number of the deceased's dependents are in
the bracket of 4 to 6; to be precise 4. This
would lead to the inevitable conclusion that
the personal expense has to be fixed at a
fraction of 1/4th, instead of 1/3rd, as
directed by the Tribunal.

28. Again, so far as the conventional
heads are concerned, this Court is of
opinion that far less than what is to be
awarded for the loss of estate, loss of
consortium and funeral expenses has been
directed by the Tribunal. Moreover, loss of
consortium is not confined to the widow
alone, but the parents too are entitled to be
compensated
for
the
loss
of
filial
consortium. The two minor children are
entitled to compensation on account of loss
of parental consortium. In this regard, the
holding of the Constitution Bench in
Pranay Sethi is again of much relevance,
where it is observed:

"48. This aspect needs to be clarified
and appositely stated. The conventional
sum has been provided in the Second
Schedule to the Act. The said Schedule has
been found to be defective as stated by the
Court in Trilok Chandra [UP SRTC v.
Trilok Chandra, (1996) 4 SCC 362] .
Recently, in Puttamma v. K.L. Narayana
Reddy [Puttamma v.K.L. Narayana Reddy,
(2013) 15 SCC 45 : (2014) 4 SCC (Civ)
384 : (2014) 3 SCC (Cri) 574] it has been
reiterated by stating : (SCC p. 80, para 54)

"54. ... we hold that the Second
Schedule as was enacted in 1994 has now
become
redundant,
irrational
and
unworkable due to changed scenario
including the present cost of living and
current rate of inflation and increased life
expectancy."
49. As far as multiplier or multiplicand is
concerned, the same has been put to rest by
the judgments of this Court. Para 3 of the
Second Schedule also provides for general
damages in case of death. It is as follows:

"3. General damages (in case of
death):

The following general damages shall
be payable in addition to compensation
outlined above:

(i)
Funeral expenses
Rs 2000
(ii)
Loss of consortium,
if beneficiary is the
spouse
Rs 5000
(iii)
Loss of estate
Rs 2500
(iv)
Medical expenses --
actual
expenses
incurred
before
death supported by
bills/vouchers
but
not exceeding
Rs 15,000"

50. On a perusal of various decisions
of this Court, it is manifest that the Second
294 INDIAN LAW REPORTS ALLAHABAD SERIES
Schedule has not been followed starting
from the decision in Trilok Chandra [UP
SRTC v.Trilok Chandra, (1996) 4 SCC
362] and there has been no amendment to
the same. The conventional damage amount
needs to be appositely determined. As we
notice, in different cases different amounts
have been granted. A sum of Rs 1,00,000
was granted towards consortium inRajesh
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 :
(2013) 4 SCC (Civ) 179 : (2013) 3 SCC
(Cri) 817 : (2014) 1 SCC (L&S) 149] . The
justification for grant of consortium, as we
find fromRajesh [Rajesh v. Rajbir Singh,
(2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179
: (2013) 3 SCC (Cri) 817 : (2014) 1 SCC
(L&S) 149] , is founded on the observation
as we have reproduced hereinbefore.

51. On the aforesaid basis, the Court
has revisited the practice of awarding
compensation under conventional heads.

52. As far as the conventional heads
are concerned, we find it difficult to agree
with the view expressed in Rajesh[Rajesh
v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4
SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 :
(2014) 1 SCC (L&S) 149] . It has granted
Rs 25,000 towards funeral expenses, Rs
1,00,000 towards loss of consortium and Rs
1,00,000 towards loss of care and guidance
for minor children. The head relating to
loss of care and minor children does not
exist. ThoughRajesh [Rajesh v. Rajbir
Singh, (2013) 9 SCC 54 : (2013) 4 SCC
(Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014)
1 SCC (L&S) 149] refers to Santosh Devi
[Santosh Devi v. National Insurance Co.
Ltd., (2012) 6 SCC 421 : (2012) 3 SCC
(Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012)
2 SCC (L&S) 167] , it does not seem to
follow the same. 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.