# Smt. Shyama @ Rani Tyagi & Ors v. I.C.I.C.I., Lombard General Insurance Co. Ltd. Lucknow & Ors

- **Citation:** (2020) 2 ILRA 1079
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-04
- **Case number:** FAFO No. 2711 of 2017
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shyama-rani-tyagi-ors-v-i-c-i-c-i-lombard-general-insurance-co-ltd-lucknow-45160
- **Pages:** 4

## Headnote

Motor Vehicles Act, 1988 - Ss 166, 168 -
Selection of Multiplier - deceased aged
about 60 years - Operative multiplier is 7
for the age group of 60 - 65 (Para 20)

Appeal Partly allowed (E-5)

List of case cited :

Sarla Verma and others Versus Delhi Transport
Corporation
and
another
reported
2009
Lawsuit(SC) 613

## Text

2 All. Smt. Shyama @ Rani Tyagi & Ors. Vs. ICICI Lombard General Insurance Co. Ltd., Lucknow & Ors.
1079
70000/- is required to be deducted and
Rs. 10000/- should be added against
the loss of estate in view of the
submission of the learned counsel to
respondent-claimant as the amount for
the loss of estate should be Rs. 15000/-
and not Rs. 5000/- which has been
awarded by the learned Tribunal. Thus,
a deduction of Rs.60,000/- from the
total
amount
of
compensation
is
required to be made.

15. In view of above discussion,
the amount of compensation comes to
Rs.3,67,000/-. With this modification,
the impugned award is upheld and this
appeal is finally disposed.

16. The amount of Rs.25,000/-
deposited by the appellant shall be
remitted back to the Tribunal which
shall be adjusted against the amount of
compensation.
----------
(2020)02ILR A1079

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2019

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

FAFO No. 2711 of 2017

Smt. Shyama @ Rani Tyagi & Ors.
 ...Appellants
Versus
I.C.I.C.I., Lombard General Insurance Co.
Ltd. Lucknow & Ors. ...Respondents

Counsel for the Appellants:
Sri G.C. Maurya, Sri Abhay Kushwaha

Counsel for the Respondents:
Sri Ajeet Kumar Singh, Sri Saurabh
Srivastava
Motor Vehicles Act, 1988 - Ss 166, 168 -
Selection of Multiplier - deceased aged
about 60 years - Operative multiplier is 7
for the age group of 60 - 65 (Para 20)

Appeal Partly allowed (E-5)

List of case cited :

Sarla Verma and others Versus Delhi Transport
Corporation
and
another
reported
2009
Lawsuit(SC) 613

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J).)

1. Heard the learned counsel for the
appellant, learned Standing counsel and
perused the record.

2. By way of the instant appeal, the
appellants have prayed for enhancement of
the compensation amount awarded by the
Tribunal vide its award dated 5.8.2010 in
Motor Accident Claim Petition No.72 of
2008 Smt. Shyama @ Rani and others Vs.
I.C.I.C.I. Lombard General Insurance
Company and others.

3. The claim petition was moved for
and over all compensation amount of Rs. 5
lakhs to be realized from the opposite
parties, whereas, the Tribunal, under the
facts and circumstances of the case,
awarded Rs.1,29,500/- along-with interest
at the simple rate of 6% per annum.

4. The facts relevant for adjudication
of this appeal appear to be that the
accident in question was caused on
17.1.2007
while
driving
rashly
and
negligently motorcycle No. U.P. 60-H
2126 and dashing the same with the
deceased at 7.30 p.m. within village
Bharauli Aala on the southern Gazipur
Ballia Road near culvert leading from
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohammadabad to Ballia due to which the
deceased Agamram Tyagi succumbed to
his injuries and died on 18.1.2007. The
matter was reported to the police station
by the Chaukidar of the concerned village
whereupon first information report was
lodged and necessary action followed.

5. Later on, the claim petition was
moved by the appellants whereby it was
claimed that the appellants are the legal
heirs of the deceased Agamram Tyagi who
was a retired manual labour from coalmine
and he would be getting Rs. 3,000/- per
month as pension if he had been alive. On
account of sudden demise of the deceased
Agamram Tyagi, the future of the entire
family has been left in the lurch and no
one is to look after the family. In the trial
court, the matter was contested between
the parties and the written statement was
filed and on the basis of pleadings, the trial
court framed as many as seven issues.

6. Issue no. 1 related to the fact of
the incident whether the same was caused
by rash and negligent driving of the
aforesaid motorcycle on the aforesaid date,
time and place by dashing the same with
the deceased Agamram Tyagi which
resulted into his death during the course of
his treatment ?

7. Issue no. 2 related to the fact of
holding and possessing valid driving
licence by the driver of the offending
vehicle.

8. Issue no. 3 related to the fact of
insurance of the aforesaid motorcycle No.
U.P. 60-H 2126.

9. Issue No.4 related to the fact of
compensation, if any, from whom the
appellants were entitled to receive.

10. Issue No. 5 related to the fact
whether the petition is barred by nonjoinder of the necessary party.

11. Issue no. 6 related to the fact of
mis-joinder of necessary party.

12. Issue no. 7 related to the point of
relief to be given to the appellants.

13. Contention raised on behalf of
the appellants is confined to the ambit that
the Tribunal while assessing the amount of
compensation to be awarded to the
appellants erred in law and failed to apply
the correct multiplier applicable in the
annual
dependency
amount
of
the
deceased and it wrongly calculated that
multiplier of 5 would be applicable to the
annual dependency Rs. 24,000/-, whereas,
in a catena of cases and particularly in the
case of Sarla Verma and others Versus
Delhi
Transport
Corporation
and
another reported 2009 Lawsuit(SC) 613,
Hon'ble Apex Court analyzed the entire
multiplier system and has arrived at
conclusion that in such cases, normally
multiplier of 7 should have been applied
by the Tribunal.

14.

Learned
counsel
for
the
appellants has also engaged attention of
this Court to paragraphs 19 and 21 of the
judgment and claimed that the principles
laid down in Sarla Verma and others
(Supra) would prevail but the Tribunal
ignored
it
for
no
worthy
reason.
Admittedly, the deceased was 60 years of
age. His age should be treated between 6065 years and while calculating from that
point, proper multiplier will be 7 instead of
5.

15. Per contra, learned counsel for
the insurance company has vehemently
2 All. Smt. Shyama @ Rani Tyagi & Ors. Vs. ICICI Lombard General Insurance Co. Ltd., Lucknow & Ors.
1081
claimed that considering the various facts
and the circumstances of the case,
obviously it cannot be said with certainty
that a person 60 years old would spend
only 1/3 of the income for his own use.
Here the amount deducted from the annual
dependency should have been to the
margin of 50% instead of 1/3. Further, the
age of the deceased is much more than that
which has been shown by the appellants.

16. Considering the siblings of the
deceased as old as 7, 10, 12 and 14 years, it
cannot be said with certainty that what age the
deceased was having at that point of time.
Admittedly, the deceased was a retired
employee and he was above 60 years and the
age factor has not been properly counted by
the Tribunal while assessing the case of the
appellants. However, the learned counsel
submitted that application of proper multiplier
say - 5 was rightly applied by the Tribunal and
that needs no interference.

17. Considered the submissions.

18. Both sides have filed their papers
which have been discussed in the body of the
judgment of the Tribunal. The Tribunal, while
considering the point of accident, decided issue
no. 1 in affirmative in favour of the appellants.
Similarly, the factum of insurance of the
aforesaid offending vehicle with the insurance
company ICICI was also found proper,
accordingly finding was recorded by the
Tribunal. Similar was the finding that the
driver of the offending vehicle was having a
legal, valid and effective driving licence. On
issue nos. 5 and 6, no evidence was adduced,
therefore, the same were decided accordingly.

19. Issue nos. 4 and 7 related to the point
of compensation to be awarded to the
petitioners, whereas, the Tribunal after
considering the claim of the appellants based
on the relevant papers and the affidavit,
recorded finding to the effect that the deceased
Agamram Tyagi was getting only Rs. 3,000/-
per month as pension. Therefore, the annual
dependency was fixed to Rs.36,000/- and after
slicing off 1/3 out of the same, it was pegged to
Rs. 24,000/- per annum. Now, considering the
age above 60 years, the multiplier of 5 was
applied by the Tribunal in this case. However,
the principles have been laid down by the
Hon'ble Apex Court in the case of Sarla
Verma and others Versus Delhi Transport
Corporation and another reported 2009
Lawsuit(SC) 613, in para 21, which is
extracted as herein below.

"(21)We therefore hold that the
multiplier to be used should be as
mentioned in column (4) of the Table
above (prepared by applying Susamma
Thomas, Trilok Chandra and Charlie),
which starts with an operative multiplier
of 18 (for the age groups of 15 to 20 and
21 to 25 years), reduced by one unit for
every five years, that is M-17 for 26 to 30
years, M-16 for 31 to 35 years, M-15 for
36 to 40 years, M-14 for 41 to 45 years,
and M-13 for 46 to 50 years, then reduced
by two units for every five years, that is,
M-11 for 51 to 55 years, M-9 for 56 to 60
years, M-7 for 61 to 65 years and M-5 for
66 to 70 years."

20. In view of above citation of
Hon'ble Apex Court, the claim raised on
behalf of the appellants is that proper
multiplier applied should have been seven
instead of five.

21. Upon consideration of the rival
submission and perusal of the aforesaid
citation of Hon'ble Apex Court in the case
of Sarla Verma (Supra) wherein reflection
made in para 21 is indicative of the fact
that in such cases, like the present one, the
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
proper multiplier to be applicable would
be 7 instead of 5 and the Tribunal erred in
law while it applied multiplier of 5 in the
annual dependency, therefore, the amount
of annual dependency, ought to have been
multiplied by 7. Thus, counting at the rate
of 7, it is aggregated to Rs.1,68,000/-
along-with 7% interest per annum. The
Tribunal has also awarded rest of the
amount under various other heads - say
loss of companionship and estate and the
funeral expenses i.e. Rs. 5000/-, Rs.2000/-
and Rs. 2,500/- respectively which are
justified amount and needs no interference
by this Court. The total compensation
amount would thus swell to Rs. 1,77,500/-
along-with
7%
interest
instead
of
1,29,500/-.

22. In view of above analysis, the
instant appeal is partly allowed for and
over
all
compensation
amount
Rs.1,77,500/-. The judgment and award of
the tribunal dated 5.8.2010 passed in
Motor Accident Claim Petition No. 72 of
2008 Smt. Shyama @ Rani and others Vs.
I.C.I.C.I. Lombard General Insurance
Company and others, is hereby modified
to the aforesaid extent.

23. Proportional distribution of
aforesaid amount among the claimants
shall be in line with the disbursement as
ordered by the tribunal.

24. The aforesaid entire amount is to
be realized from the insurance company
and deposited with the tribunal within one
month from today.

25. Costs easy.
----------
(2020)02ILR A1082

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH, J.

FAFO No. 3706 of 2018

Meerut Development Authority, Meerut
 ...Appellant
Versus
M/s.
Civil
Engineering
Construction
Corporation & Ors. ...Respondents

Counsel for the Appellant:
Sri Faizan Ahmad, Sri Bhupeshwar Dayal,
Sri S.F.A. Naqvi

Counsel for the Respondents:
Sri Murshid Khan, Sri Amit Saxena, Sri
Mushir Khan

A. Arbitration Act - "entering upon the
reference" - meaning - An arbitrator
enters on a reference when he first
applies his mind to the dispute - when
arbitrator actually enters upon the
matter of reference & not when an
arbitrator accepted the office or took
upon himself that duty

Fact - on 04.09.2004 Civil Judge directed
to appoint arbitrator make his award with a
period of four months - Civil Judge vide
order dated 25.10.2004 appointed sole
arbitrator
-
on
15.11.2004
arbitrator
accepted the appointment and entered into
reference accordingly and issued notice
fixing the first date in the proceedings, on
20.11.2004 for appearance of the parties -
Appellant
case
that
award
dated
19.03.2005 was time barred made after the
mandate of four months had expired - Held
- on 20.11.2004 arbitrator applied his mind
to the subject matter of dispute put up for
arbitration
-
thus
arbitrator
entered
reference on 20.11.2004 - Computed from
the first date fixed in arbitration, he had
time upto 19 March 2005 to make the
award as his four month mandate survived
till then - - No interference (Para 51)