# Smt. Sushila Devi & Ors v. Devendra & Ors

- **Citation:** (2021) 3 ILRA 288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-12
- **Case number:** Civil Appeal No.242/243 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sushila-devi-ors-v-devendra-ors-46936
- **Pages:** 5

## Headnote

Sri Rahul Sahai, Sri Ajay Singh, Sri Parihar

No future loss of income awarded in the
impugned award-40% of the income as
deceased was below 30 years of age. (E-7)

Cases cited:

## Text

288 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation

31. As far as issue of rate of
interest is concerned, it should be 9% in
view decision of the Apex Court in
Civil Appeal No.242/243 of 2020
(National Insurance Company Ltd. vs
Birender and others) decided on 13
January, 2020 which is the latest in
point of time.

32. For the aforesaid reasons, the
present
appeal
filed
by
the
claimant/appellant stands allowed and
the award stands modified to the extent
directed
above.
The
amount
be
deposited by the respondent-Insurance
Company within a period of 12 weeks
from today with interest at the rate of
9% from the date of filing of the claim
petition till the award and 6% thereafter
till the amount is deposited. The amount
already deposited be deducted from the
amount to be deposited.

33. Incidentally, the appellantInsurance Company prayed that the
statutory deposit of Rs.25,000/- made
before this Court for preferring this
appeal
be
remitted
back
to
the
concerned Motor Accidents Claims
Tribunal as expeditiously as possible in
order to adjust the same with the
amount of compensation to be paid to
the claimant, however, such prayer is
allowed.

34. Let original record be returned.
----------
(2021)03ILR A288
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2021

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

FAFO Defective No. 1367 of 2012

Smt. Sushila Devi & Ors. ...Appellants
Versus
Devendra & Ors. ...Respondents

Counsel for the Appellants:
Anju Shukla, Sri Nigamendra Shukla

Counsel for the Opposite Parties:
Sri Rahul Sahai, Sri Ajay Singh, Sri Parihar

No future loss of income awarded in the
impugned award-40% of the income as
deceased was below 30 years of age. (E-7)

Cases cited:

1. Sarla Verma Vs Delhi Transport Corporation,
(2009) 6 SCC 121

2.Anita Sharma & ors. Vs New India Assurance
Company Limited & anr., (2021) 1 SCC 171

3. Smt. Munni Devi & 5 ors. Vs Heera Lal & 2
ors., FIRST APPEAL FROM ORDER No. - 2974 of
2017

4. Laxmi Devi & ors. Vs Md. Tanwar & ors.,
2008 (2) TAC 394 SC

5. Smt. Munni Devi & 5 ors Vs Heera Lal & 2
ors, FIRST APPEAL FROM ORDER No. - 2974 of
2017

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

1. Heard Sri Nigamendra Shukla,
learned counsel for the appellants; Sri
Rahul Sahai ably assisted by Sri Parihar,
learned counsel for respondent-Sri Ram
General Insurance Company; and Sri Ajay
Singh,
learned
counsel
for
National
3 All. Smt. Sushila Devi & Ors. Vs. Devendra & Ors.
289
Insurance Company. Delay in filing this
appeal has been condoned vide order of the
date
passed
in
delay
condonation
application.

2. This appeal, at the behest of the
claimants, has been preferred against the
judgment and order dated 06.04.2012
passed by Motor Accident Claims Tribunal/
Additional District Judge, Court no.03,
Ghaziabad (hereinafter referred to as
'Tribunal') in M.A.C. No.449 of 2009
awarding a sum of Rs.3,75,761/- only with
interest at rate of 6% conditionally.

3. By consent of learned counsel for
parties, we propose to admit the appeal and
hear and decide the lis finally as there
appears prima facie error apparent on the
face of the record. It is an appeal of the
year 2012. The accident had taken place in
the year 2009. It is apparent from award
that no future loss of income has been
awarded by the tribunal. The multiplier
applied is also not in consonance with the
judgment of Sarla Verma Vs. Delhi
Transport Corporation, (2009) 6 SCC
121. The Tribunal has awarded multiplier
of 13 as per the age of the parents though
the deceased was a married person. All this
would permit us to take up the matter for
final disposal so that the insurance
company may not be burdened with huge
amount by way of interest.

4. The record is not necessary as the
Insurance Company have accepted their
liability. The factum of accident having
taken place is not in dispute. The issue of
negligence decided by tribunal has also
attained finality. The death was due to
accidental injuries is also not disputed. The
insurance company has not filed any appeal
challeging the award. No orders adverse to
owners or drivers are passed.

5. The only dispute raised relates to
compensation which has been awarded the
latest decision of the Supreme Court
reported in (2021) 1 SCC 171, in case titled
Anita Sharma and others v. New India
Assurance
Company
Limited
and
another and the judgment of this Court in
the case of Smt. Munni Devi And 5 Ors.
v. Heera Lal And 2 Ors., FIRST
APPEAL FROM ORDER No. - 2974 of
2017 decided on 23.2.2021 will also have
to
be
followed
while
deciding
compensation.

6. The appellants have contended that
the deceased was a Sales Executive in
Colortech Polymer Company and was
earning Rs.6,150/- with 12% P.F. and was
also entitled to bonus. It is submitted by
Shri Shukla that this amount has been
disbelieved
by
the
Tribunal,
as
no
documentary evidence to prove the same
was produced and oral testimony of PW-1
(father) and PW-3 (employer) has been
disbelieved by the tribunal.

7. Learned counsel Shri Sahai assisted
by Shri Parihar for the respondentInsurance Company has contended that no
evidence whatsoever was produced to
prove
that
the
deceased
was
in
employment, namely, appointment letter,
pay slip, and/or register in which name of
the deceased might have been mentioned
and, therefore, the tribunal has rightly not
considered that the deceased was a salaried
person and has considered his income as
per the judgment of Laxmi Devi and
others v. Md. Tanwar and others, 2008
(2) TAC 394 SC and has considered the
income to be Rs.100/- per day as a labourer
and, therefore, his income has rightly been
considered to be Rs.2500/- per month. It is
stated by Sri Sahai that the widow has
already remarried and, therefore, there is no
290 INDIAN LAW REPORTS ALLAHABAD SERIES
question of any award being passed in her
favour. It is further submitted that the fact
that she had re-married and, therefore, the
deductions should have been 1⁄2 for personal
expenses. It is also submitted by Shri
Parihar that as it is not proved that he was
in what kind of employment and whether
he was in fact employee or/not, the award
of future income loss was not granted as
the law was sattled in decision of Sarla
Verma (Supra).

8. It is submitted by Shri Shukla that as
far as the multiplier is concerned, the
Tribunal has considered the judgment of
Sarla Verma (Supra) but has considered the
age of the parents and not of the deceased
which could not have been done and the issue
is no longer res integra rather, the age in case
of married person even if the widow had
relinquished her right. The multiplier to be
awarded has to be as per the age of the
deceased even if the law as applicable applied
in those days, the multiplier should have been
17 as the deceased was not a bachelor. Per
contra, Shri Parihar has very feebly argued
that the age of the parents has been rightly
considered as the widow has already
remarried and, therefore, there should be no
enhancement in the multiplier awarded. We
cannot accept this submission of Shri Parihar.

9. It is further submitted by Sri
Shukla that the rate of interest awarded in
the year 2012 could not have been 6% even
as per the Rule 220 (6) of Uttar Pradesh
Motor Vehicles Rules (11th Amendment),
2011 should have been above 7%, in view
of the judgment of this High Court it
should have been 12% and according to the
learned
counsel,
the
non
pecuniary
damages granted are also on the lower side.

10. Having perused the judgment, one
fact emerges that the widow remarried
during the pendency of the litigation and
the legal representatives are the parents and
brother.

11. According to this Court, learned
tribunal has committed an error apparent on
the face of the record as strict adherence to
principles of civil trappings cannot be made
applicable to motor vehicles claim cases.

12. It is prima facie proved that the
deceased was in service, namely, the father
deposed on oath that the deceased was
serving as a Sales Executive in Colour
Tech Polymer Company. The claimants
have examined the father of deceased as
well as the widow and also the proprietor
of the said company, who has deposed that
the deceased was in service but there is no
evidence in rebuttal led by the Insurance
Company to come to a definite conclusion
that the deceased was not employed. The
deceased was a Graduate in Arts even if we
consider the minimum wages of a labourer
in the year 2009 and even if we go by the
recent judgment of the Apex Court wherein
it has been held that minimum wage would
be
made
applicable
which
we
are
considering to be Rs.6,000/- per month,
which we feel is just and proper, which is
nearby to the income as an employee as
mentioned by PW-1, PW-2 and PW-3.

13. The second error which is apparent
on the face of the record is that the tribunal
has not considered any amount for future loss
of income. The decision in National
Insurance Company Limited Vs. Pranay
Sethi and Others, 2017 0 Supreme (SC)
1050 will permit us to add future loss of
income however even if it is considered that
he was in employment it was a private
employment and hence the parameters fixed
for self employed will have to take into
consideration namely 40% and not 50% as
3 All. Smt. Sushila Devi & Ors. Vs. Devendra & Ors.
291
orally submitted by Shri Shukla. We accept
the alternative submission of Shri Sahai that
if the Court grants future loss it has to be 40%
of the income. Shri Shukla vehemently
objects to this, but it would be 40% of the
income as he has below 30 years of age, i.e.,
Rs.6000+ Rs.2400 which comes to Rs.8400/-
per month.

14. The submission of Shri Sahai that,
the widow has remarried and has not been
granted any compensation, the loss for
personal expenses should have been 1/2 and
not 1/3, we are unable to accept this
proposition, the reason being before the death
of the deceased, he was happily married
person, and he was residing with the joint
family and, therefore, as per cardinal
principle laid down in Sarla Verma (Supra)
and later on Pranay Sethi (Supra) as there
were three persons (parents and wife) 1/3 will
have to be deducted for personal expenses.

15. Hence, the family would be entitled
to Rs.5600/-p.m and we award the filial
consortium of Rs.50,000/- in view of the
latest decision of this Court in Smt. Munni
Devi And 5 Ors. v. Heera Lal And 2 Ors.,
FIRST APPEAL FROM ORDER No. -
2974 of 2017 decided on 23.2.2021 and
Rs.30,000/-
under
other
non-pecuniary
damages.

16. Hence, the total compensation
payable to the appellants as discussed herein
above would be:

i. Income Rs.6000/- p.m.

ii.
Percentage
towards
future
prospects : 40% namely Rs.2400/-

iii. Total income : Rs. 6,000 +
2,400 = Rs.8,400/-

iv. Income after deduction of
1/3rd : Rs.5600/-

v. Annual income : Rs.5600 x 12
= Rs.67,200/-

vi. Multiplier applicable : 17

vii.
Loss
of
dependency:
Rs.67,200 x 17 = Rs.1142400/-

viii.
Amount
towards
filial
consortium : Rs.50,000/-

ix. Amount towards loss of estate
: Rs.30,000/-

x. Amount awarded in medical
expenses not disturbed.

xi.
Total
compensation
(vii+viii+ix): 12,22,400/-

17. This takes us to the question of
grant of interest. The repo rate is declining
day in day out. The Rule 220 (6) of Uttar
Pradesh Motor Vehicles Rules (11th
Amendment), 2011 prescribes 7% rate of
interest. We should not grant interest less
than 7% interest and, therefore, in view of
the decision of the Apex Court in
National Insurance Co. Ltd. Vs. Mannat
Johal and Others, 2019 (2) T.A.C. 705
(S.C.), we consider it just and proper to
award 7.5% rate of interest. The interest
has to be from the date of filing of the
claim petition and we confirm the same.

18. No other grounds are urged
orally when the matter was heard.

19. In view of the above, the appeal
is partly allowed. Judgment and decree
passed by the Tribunal shall stand
modified to the aforesaid extent. The
respondent
No.3,
Sri
Ram
General
Insurance Company shall deposit the
amount within a period of 12 weeks from
today with interest at the rate of 7.5%
from the date of filing of the claim petition
till the amount is deposited. The amount if
deposited be deducted from the amount to
be deposited.
292 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The learned Registrar General is
requested to circulate this judgment to the
Tribunals for future guidance on question of
multiplier and future income loss.

21. We are thankful to Shri Rahul Sahai
assisted by Shri Parihar, Ajay Singh and
Nigamendra Shukla for getting this matter
disposed of expeditiously.

Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J.
&
Hon'ble Ajit Singh, J.

(Ref: Civil Misc. Delay Condonation
Application)

1. Heard learned counsel for the parties.

2. This is an application seeking
condonation of delay in filing the appeal.

3. Cause shown for the delay is
sufficient, hence, the delay is condoned.

4. This application, accordingly stands
allowed.
----------
(2021)03ILR A292
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2021

BEFORE

THE HON'BLE VIVEK AGARWAL, J.

FAFO No. 2061 of 2016

The New India Assurance Company Ltd.
 ...Appellant
Versus
Smt. Rinku Devi & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Rakesh Bahadur

Counsel for the Opposite Parties:
Sri Yashwant Pratap Singh, Sri Awadhesh
Kumar Malviya, Sri Vashishtha Tiwari

Plea of contributory negligence not made
out-inspection report was not examinedneither it is an admissible document u/r
211-A of Rules, 1998-Appeal dismissed.
(E-7)

Cases cited:

1. Machindranath Kernath Kasar Vs D.S.
Mylarappa & ors.; (2008) 13 SCC 198

2.ICICI Lombard General Insurance Co. Ltd. Vs
Smt. Reena Tyagi & ors. (FAFO No. 2190 of
2010)

3.Kusum Lata & ors. Vs Satbir & ors.; 2011 (2)
TAC 4 (SC)

4. Saroj & ors. Vs Hethlal & ors.; 2011 (1) TAC
271 (SC)

5.United Provinces Vs Mt. Atiqa Begum, AIR
1941 FC 16
6.
Garikapatti
Veeraya
Vs
N.
Subbiah
Choudhury; AIR 1957 SC 540

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

1. Heard Sri Rakesh Bahadur, learned
counsel for appellant-insurance company,
Sri Yashwant Pratap Singh, learned counsel
for claimant-respondent no. 1 and Sri
Awadhesh Kumar Malviya, learned counsel
for respondent no. 6.

2. This appeal has been filed by the
insurance company being aggrieved of
award dated 05.03.2016 passed by learned
Motor Accident Claims Tribunal/District
Judge, Deoria in MACP No. 374 of 2011,
on the ground that driver of the offending
vehicle was not impleaded as a party and
further
that
aspect
of
contributory