# The National Insurance Co. Ltd v. Vishram & Ors

- **Citation:** (2022) 6 ILRA 1199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-20
- **Case number:** First Appeal From Order No. 817 of 2016
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-national-insurance-co-ltd-v-vishram-ors-48642
- **Pages:** 16

## Headnote

A. Civil Law - Motor Vehicles Act, 1988 -
Computation of Compensation - Just
compensation - Rule 220-A(4) of the
Rules, 1998 - if a statutory instrument
affords greater or better benefits, said
statutory instrument shall operate and the
norms laid down by different judicial
precedents shall not limit the operation of
such statutory instrument - statutory
instrument shall prevail over the norms
laid down by judicial precedents only to
the extent it gives greater or better
benefit than the judicial precedents - If
the
norms
laid
down
by
judicial
pronouncements give greater or better
benefit than the formula devised by the
statutory
instrument,
the
judicial
precedents shall prevail over the statutory
instrument (Para 34)

B. Civil Law - Motor Vehicles Act, 1988 -
Section 173 - Delay in F.I.R. - mere delay
in registering a First Information Report
regarding the accident cannot be a ground
to doubt the case of the claimants - if
there was no indication of fabrication or
concoction to implicate innocent persons
then, even if there was a delay in lodging
the First Information Report, the claim
case cannot be dismissed merely on the
ground of delay in lodging the F.I.R. -

Accident occurred on 22.12.2014 - injured
admitted in the Trauma Centre in K.G.M.U. on
22.12.2014 itself - injured died on 6.1.2015 -
Held - family of the deceased was occupied in
the treatment of the deceased - case of the
claimants cannot be rejected only on the ground
that the First Information Report was registered
nine days after the incident (Para 10)

C. Civil Law - Motor Vehicles Act, 1988 -
Evidence - Proof - Preponderance of
probability - claimants are required to
establish their case on the touchstone of
preponderance of probability and the
standard of proof beyond reasonable
doubt is not applied while inquiring into
the case

Accident proved by the testimony of eyewitness
of the incident (P.W. - 2) - charge-sheet filed by
the police against the driver of the offending
vehicle - Post mortem report indicates that
death occurred due to ante-mortem injuries and
the nature of the injuries shows that the same
were caused in an accident - evidence on record
proves that Sushil was injured in the accident
that took place due to rash and negligent
driving
of
the
offending
vehicle
and
subsequently died due to the injuries caused in
the accident (Para 14)
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
Testimony of P.W. - 2 cannot be rejected merely
on the ground that the date of admission of the
deceased in the Trauma Centre as stated by
P.W. - 1 (wife of deceased) and P.W. - 2 is
different from the date of his admission in the
Trauma Centre as recorded in the discharge slip
- P.W. - 2 who got the deceased admitted in
Trauma Centre was not cross-examined by the
opposite parties regarding the entries in the
discharge slip (Para 11)

Insurance counsel argued that the site plan
falsifies the testimony of P.W. - 2 - P.W.

## Text

_Characters 0–39,834 of 53,922. This is a partial read: ask again with offset=39834 for what follows._

6 All. The National Insurance Co. Ltd. Vs. Vishram & Ors.
1199
66. Having considered material on
record, this Court finds that the judgments
and decree passed by both the Courts below
are illegal and arbitrary and cannot be
sustained in the eye of law and are thus, set
aside.

63. The Second Appeal stands
allowed.

64. The Suit of the plaintiff-appellant
being Suit No.11 of 1992 stands decreed.

65. Office to transfer back the records
of the Courts below.
----------
(2022)06ILR A1199
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.05.2022

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

First Appeal From Order No. 817 of 2016
And
First Appeal From Order No. 51 of 2018

The National Insurance Co. Ltd.
 ...Appellant
Versus
Vishram & Ors. ...Respondents

Counsel for the Appellant:
Sri Anil Srivastava

Counsel for the Respondents:
Sri Jagat Pal Singh, Sri Maneesh Pandey

A. Civil Law - Motor Vehicles Act, 1988 -
Computation of Compensation - Just
compensation - Rule 220-A(4) of the
Rules, 1998 - if a statutory instrument
affords greater or better benefits, said
statutory instrument shall operate and the
norms laid down by different judicial
precedents shall not limit the operation of
such statutory instrument - statutory
instrument shall prevail over the norms
laid down by judicial precedents only to
the extent it gives greater or better
benefit than the judicial precedents - If
the
norms
laid
down
by
judicial
pronouncements give greater or better
benefit than the formula devised by the
statutory
instrument,
the
judicial
precedents shall prevail over the statutory
instrument (Para 34)

B. Civil Law - Motor Vehicles Act, 1988 -
Section 173 - Delay in F.I.R. - mere delay
in registering a First Information Report
regarding the accident cannot be a ground
to doubt the case of the claimants - if
there was no indication of fabrication or
concoction to implicate innocent persons
then, even if there was a delay in lodging
the First Information Report, the claim
case cannot be dismissed merely on the
ground of delay in lodging the F.I.R. -

Accident occurred on 22.12.2014 - injured
admitted in the Trauma Centre in K.G.M.U. on
22.12.2014 itself - injured died on 6.1.2015 -
Held - family of the deceased was occupied in
the treatment of the deceased - case of the
claimants cannot be rejected only on the ground
that the First Information Report was registered
nine days after the incident (Para 10)

C. Civil Law - Motor Vehicles Act, 1988 -
Evidence - Proof - Preponderance of
probability - claimants are required to
establish their case on the touchstone of
preponderance of probability and the
standard of proof beyond reasonable
doubt is not applied while inquiring into
the case

Accident proved by the testimony of eyewitness
of the incident (P.W. - 2) - charge-sheet filed by
the police against the driver of the offending
vehicle - Post mortem report indicates that
death occurred due to ante-mortem injuries and
the nature of the injuries shows that the same
were caused in an accident - evidence on record
proves that Sushil was injured in the accident
that took place due to rash and negligent
driving
of
the
offending
vehicle
and
subsequently died due to the injuries caused in
the accident (Para 14)
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
Testimony of P.W. - 2 cannot be rejected merely
on the ground that the date of admission of the
deceased in the Trauma Centre as stated by
P.W. - 1 (wife of deceased) and P.W. - 2 is
different from the date of his admission in the
Trauma Centre as recorded in the discharge slip
- P.W. - 2 who got the deceased admitted in
Trauma Centre was not cross-examined by the
opposite parties regarding the entries in the
discharge slip (Para 11)

Insurance counsel argued that the site plan
falsifies the testimony of P.W. - 2 - P.W. - 2
stated that the accident occurred in front of
Bajrang Hospital while the site plan shows that
the accident occurred in front of Heera Complex
- Held - both Heera Complex and Bajrang
Hospital are adjacent to the road on which the
accident took place - not much importance is to
be given to the difference between the
statement of P.W. - 2 and the site plan
regarding location of different buildings (Para
11)

D. Civil Law - Motor Vehicles Act, 1988 -
Computation of Compensation - Notional
Income - Deceased worked as a Loader
with Usha Company and with private
traders and earned Rs.9,000/- per month -
said fact testified by P.W. - 1 - there is no
document on record to prove the income
of the deceased - Tribunal has computed
the
compensation
payable
to
the
claimants on the notional income of the
deceased as Rs.100/- per day - Held - it
would be just to treat the notional income
of the deceased as Rs. 200/- per day, i.e.,
Rs 6,000/- per month (Para 20)

E. Civil Law - Motor Vehicles Act, 1988 -
Computation
of
Compensation
-
compensation is to be determined on
notional income of the deceased which in
turn, is to be determined on the minimum
wages of an unskilled labour and as the
deceased was 24 years old, therefore, in
accordance with the Rules, 1998, 50%
has to be added as future prospects in his
notional income while determining the
multiplicand (Para 38)

F. Civil Law - Motor Vehicles Act, 1988 -
Computation
of
Compensation
-
deductions towards personal and living
expenses of the deceased - Father - Held -
subject to evidence to the contrary, father
was likely to have his own income and
would
not
be
considered
to
be
a
dependent - claimants have not filed any
evidence to show that the father of the
deceased had no income of his own - only
the mother, the wife and the minor son of
the deceased shall be considered his
dependent for deciding the deductions to
be made towards personal and living
expenses of the deceased (Para 21)

Rule 220-A(4) of the Rules, 1998 identifies
'loss of love and affection' and 'loss of
consortium' as separate categories of nonpecuniary damages - Loss of love and
affection at the rate of Rs.50000 to each of
the claimants - Loss of spousal consortium to
opposite wife of deceased Rs.40,000 - Loss
of filial consortium to parents of deceased
i.e. Rs.40,000 to each of the claimants (Para
42)

Allowed. (E-5)

List of Cases cited:

1. Ravi Vs Badrinarayan & ors. 2011 (4) SCC
693

2. New India Assurance Co. Ltd. Vs Smt. Resha
Devi & ors. (2017) 3 ADJ 685

3. United India Insurance Co. Ltd. Vs Satinder
Kaur @ Satwinder Kaur & ors., 2021 (11) SCC
780

4. Sarla Verma (Smt) & ors. vs Delhi Transport
Corporation & anr. 2009 (6) SCC 121

5. Kirti & anr. Vs Oriental Insurance Co. Ltd.
2021 (2) SCC 166

6. Magma General Insurance Co. Ltd. Vs Nanu
Ram 2018 SCC OnLine SC 1546

7. National Insurance Company Ltd. Vs Pranay
Sethi & ors. (2017) 16 SCC 680

8. New India Assurance Co. Ltd. Vs Smt.
Somwati & ors., (2020) 9 SCC 644
6 All. The National Insurance Co. Ltd. Vs. Vishram & Ors.
1201
9. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors. 2021 SCC OnLine SC 822

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. The above First Appeal From
Orders have been filed under Section 173
of
the
Motor
Vehicles
Act,
1988
(hereinafter referred to as, ''Act, 1988')
against the judgment and award dated
30.5.2016 passed by the Motor Accident
Claims Tribunal, Lucknow in Motor
Accident Claim Petition No. 99 of 2015.
First Appeal From Order No. 817 of 2016
has been filed by the National Insurance
Company
Ltd.,
Lucknow
(hereinafter
referred to as, ''Insurance Company') for
setting-aside the award dated 30.5.2016
while First Appeal From Order No. 51 of
2018 has been filed by the claimants for
enhancement
of
compensation.
The
appellant in First Appeal From Order No.
817 of 2016 shall hereinafter be referred as
the Insurance Company in the present
appeal. The opposite party nos. 1 to 4 in
First Appeal From Order No. 817 of 2016
shall
hereinafter
be
referred
as
the
claimants in the present appeal, the
opposite party no. 5 in First Appeal From
Order No. 817 of 2016 is the owner of the
vehicle and shall hereinafter be referred as
owner of the offending vehicle and
opposite party no. 6 is the driver of the
offending vehicle and shall hereinafter be
referred as driver of the offending vehicle
in the present judgment.

2. The facts of the case are that Motor
Accident Claim Petition No. 99 of 2015 was
instituted by the claimants claiming a
compensation of Rs.22,00,000/- for the death
of Sushil (hereinafter referred to as, ''the
deceased') due to the injuries caused in the
accident which allegedly took place due to
rash and negligent driving of Bus No. U.P. 32
C.N. - 4757 (hereinafter referred to as,
''offending vehicle'). The accident took place
on 22.12.2014 at 7:50 a.m. In the claim
petition, the accident was alleged to have
occurred in front of Bajrang Hospital. The
case of the claimants is that on 22.12.2014
the deceased was going on a bicycle to join
his duties in Usha Company and, at 7:50 a.m.
when he was in front of Bajrang Hospital, the
offending vehicle hit the bicycle from the
front causing injuries to the deceased who
subsequently died on 6.1.2015 due to the
injuries caused in the accident. It has been
stated by the claimants that the deceased was
initially admitted in Bajrang Hospital who
after giving first aid to the deceased referred
him to Trauma Centre in King George
Medical University, Lucknow (hereinafter
referred to as, ''K.G.M.U.') where the
deceased died on 6.1.2015. According to the
claimants, the deceased was admitted in the
K.G.M.U. on 22.12.2014 itself. A First
Information Report registering Case Crime
No. 476 of 2014 under Sections 279, 338 and
427 of the Indian Penal Code was also
registered against the driver of the offending
vehicle on 31.12.2014. It is the case of the
claimants that the deceased was working as a
Loader in Usha Company as well as for
certain private traders and earned Rs.9,000/-
per month. On the aforesaid pleas, the
claimants
claimed
a
compensation
of
Rs.22,00,000/- for the death of the deceased.
The opposite party no. 1 / claimant no. 1 is
the father of the deceased, opposite party no.
2 / claimant no. 2 is the mother of the
deceased, opposite party no. 3 / claimant no.
3 is the wife of the deceased and opposite
party no. 4 / claimant no. 4 is the minor son
of the deceased. Opposite party no. 4 was one
year old at the time of accident.

3. The owner and the driver of the
vehicle filed their written statements
denying the incident and the involvement
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
of the offending vehicle in the accident and
also denied the allegation that Sushil died
due to any injuries caused in the accident.
The case of the owner and the driver of the
vehicle was that on the date of accident, the
offending vehicle was not plying on the
route on which the accident occurred. It
was additionally pleaded by the owner and
the driver of the vehicle that at the time of
accident, the vehicle was insured with the
Insurance Company and the driver of the
vehicle had a valid driving licence. The
Insurance Company, i.e., the appellant also
filed its written statement denying the
incident and the involvement of the
offending vehicle in the accident and
additionally
pleaded
that
there
was
contributory negligence on the part of the
deceased in the accident.

4. In Motor Accident Claim Petition
No. 99 of 2015, the Tribunal framed five
Issues. Issue No. 1 was regarding the
factum of accident and the involvement of
the offending vehicle in the accident. Issue
No. 2 was as to whether there was any
contributory negligence on the part of the
deceased in causing the accident, Issue No.
3 was as to whether at the time of accident,
the driver of the offending vehicle had a
valid driving licence. Issue No. 4 was as to
whether at the time of accident, the
offending vehicle was insured with the
Insurance Company. Issue No. 5 was
regarding the amount of compensation
payable to the claimants and the defendant
liable to pay the said compensation.

5. In the Tribunal, the opposite party
no. 3 / claimant no. 3 deposed as plaintiff
witness no. 1 and one Mahesh deposed as
plaintiff witness no. 2 for the claimants. In
the Tribunal, the claimants filed the First
Information Report, the post-mortem report
of the deceased, the inquest report, the
charge-sheet filed by the police against the
driver of the offending vehicle in Case
Crime No. 476 of 2014, the discharge
certificate of the King George Medical
University
and
the
medical
receipts
showing expenses on the treatment of the
deceased. The defendant produced the
driver of the offending vehicle as D.W. - 1
and the owner of the vehicle as D.W. - 2
and also filed the route chart of 31st July,
2015 and 27th January, 2016 to show that
the offending vehicle did not ply on the
route on which the accident took place.

6. The Tribunal decided Issue No. 1
in favour of the claimants relying on the
testimony of plaintiff witness nos. 1 and 2
as well as after taking note of the First
Information Report and the fact that a
charge-sheet had been filed against the
driver of the offending vehicle regarding
the accident. So far as Issue No. 2 is
concerned, the Tribunal after considering
the site plan held that there was no
contributory negligence by the deceased in
causing the accident as the deceased was on
the left side of the road when the accident
occurred. Issue Nos. 3 and 4 were decided
in favour of the owner and the driver of the
offending vehicle and 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 vehicle was insured
with the appellant - Insurance Company. So
far as Issue No. 5 is concerned, the
Tribunal in light of the findings on Issue
Nos. 3 and 4 held the Insurance Company
liable to indemnify the owner of the
vehicle. The Tribunal determined the
compensation after taking the notional
income of the deceased as Rs. 3,000/- per
month and after adding of 50% future
prospects in the income of the deceased.
The Tribunal deducted 1/4 against personal
and living expenses of the deceased and
6 All. The National Insurance Co. Ltd. Vs. Vishram & Ors.
1203
applied a multiplier of 18 holding that the
age of the deceased was 24 years. The
Tribunal awarded Rs.5,000/- for loss of
consortium, loss of love and affection and
funeral expenses, in accordance with Rule
220-A (4) of the Uttar Pradesh Motor
Vehicles Rules, 1998 (hereinafter referred
to as, ''Rules, 1998') and further Rs.25,078/-
for the medical expenses incurred by the
claimants on the treatment of the deceased.
On the aforesaid, the Tribunal awarded a
total compensation of Rs.7,69,078/- as
compensation to the claimants with 7%
interest from the date of instituting the
claim petition till the date of final payment.
Hence, the present appeals.

7. It was argued by the counsel for the
appellant that the discharge certificate
issued by the Medical Officer on duty at
King George Medical University showed
that the deceased was admitted in the
Trauma Centre on 23.12.2014 at 3:15 p.m.
It was argued that the aforesaid document
which was marked as Paper No. C-4/8 in
the Tribunal clearly falsified the testimony
of P.W. - 1 and P.W. - 2 that the accident
occurred on 22.12.2014 and their testimony
regarding the accident was not reliable. It
was argued the delay in filing the First
Information Report had not been explained
by the claimants. It was further argued that
the route chart filed by the owner and the
driver of the offending vehicle clearly
showed that the offending vehicle did not
ply on the route on which the accident took
place and the allegation of the claimants
that the accident took place because of rash
and negligent driving of the offending
vehicle was false. It was further argued that
the site plan prepared by the police in Case
Crime No. 476 of 2014 showed that the
accident happened in front of Heera
Complex and not in front of Bajrang
Hospital as alleged by the claimants. It was
argued that the documentary evidence on
record clearly contradicted the case of the
claimants. It was further argued that the
Tribunal has ignored the aforesaid evidence
which went to show that a false case was
set-up by the claimants to get compensation
and the findings of the Tribunal on Issue
No. 1 are contrary to the evidence on
record and are liable to be set-aside. It was
argued that for the aforesaid reasons, First
Appeal From Order No. 817 of 2016 is to
be allowed and the award dated 30.5.2016
passed by the Tribunal is to be set-aside.

8. Rebutting the arguments of the
counsel for the appellant, the counsel for
the claimants has supported the reasons
given by the Tribunal in support of its
findings and has argued that the accident
was proved by the testimony of P.W. - 2,
who was an eye-witness to the incident. It
was argued that the discharge certificate
issued by the Medical Officer of K.G.M.U.
did not correctly record the date of
admission of the deceased and the fact that
the deceased was admitted in K.G.M.U. on
22.12.2014 was proved by other documents
available on record, especially Paper Nos.
C-24/1 and C-24/2. It was argued that the
evidence on record clearly showed that the
deceased died due to the injuries caused in
the accident which took place because of
rash and negligent driving of the offending
vehicle and there is no error in the findings
of the Tribunal on Issue Nos. 1 and 2. It
was further argued that the Tribunal has
awarded very meager compensation to the
deceased and the compensation had to be
computed on a notional income of Rs.200/-
per day. It was further argued that the
Tribunal has awarded very meager amount
for loss of consortium and loss of love and
affection to the claimants and for the
funeral expenses and the Tribunal has not
awarded any amount to the claimants for
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
loss of estate. It was argued that the
claimants
were
entitled
to
separate
compensation for loss of consortium and
loss of love and affection. It was argued
that in the aforesaid circumstances, the
compensation is to be enhanced and the
award of the Tribunal is to be modified. It
was argued that for the aforesaid reasons,
First Appeal From Order No. 51 of 2018 is
to be allowed and First Appeal From Order
No. 817 of 2016 is liable to be dismissed.

9. I have considered the rival
submissions of the counsel for the parties
and also perused the records.

10. It is settled law that in claim cases
registered under the Act, 1988, the
claimants are required to establish their
case on the touchstone of preponderance of
probability and the standard of proof
beyond reasonable doubt is not applied
while inquiring into the case. Further, in
Ravi vs Badrinarayan & Ors. 2011 (4)
SCC 693, it was observed that mere delay
in registering a First Information Report
regarding the accident cannot be a ground
to doubt the case of the claimants. It was
observed by the Supreme Court that if there
was no indication of fabrication or
concoction to implicate innocent persons
then, even if there was a delay in lodging
the First Information Report, the claim case
cannot be dismissed merely on that ground
and delay in lodging the First Information
Report cannot be treated as fatal to the case
of the claimants. It is the case of the
claimants that the accident occurred on
22.12.2014. The injured died on 6.1.2015.
The injured, according to the claimants,
was admitted in the Trauma Centre in
K.G.M.U. on 22.12.2014 itself. Apparently,
the family of the deceased was occupied in
the treatment of the deceased. From the
said reason, the case of the claimants
cannot be rejected only on the ground that
the First Information Report was registered
nine days after the incident.

11. In his testimony, the plaintiff
witness no. 2, who is an eye-witness of the
accident, has stated that he and the
deceased, were going on their bicycles to
join their duties and when they were in
front of Bajrang Hospital, the offending
vehicle hit the bicycle of the deceased from
the front resulting in injuries to Sushil. It
has been stated by P.W. - 2 that he initially
got Sushil admitted in Bajrang Hospital
from where the deceased was referred to
Trauma
Centre
in
K.G.M.U.
and
consequently he got the deceased admitted
in
Trauma Centre
in K.G.M.U.
on
22.12.2014 itself. The fact that the injured /
deceased was admitted in the Trauma
Centre on 22.12.2014 has also been proved
by the plaintiff witness no. 1, who is the
wife of the deceased. The discharge slip
issued by the Medical Officer on duty of
K.G.M.U. shows that the deceased was
admitted
in
the
Trauma
Centre
on
23.12.2014. However, Paper No. C-22/15
which is a receipt issued by the Care
Diagnostic Private Ltd. shows that the
deceased was referred by Doctor Bajrang
Hospital on 22.12.2014 and Paper Nos. C24/1 and C-24/2 also show that the
deceased was given medicine by the
K.G.M.U. Welfare Society, Lucknow on
22.12.2014 itself. Paper Nos. C-24/1 and
C-24/2 indicate that the injured was an Inpatient on the date the receipts were issued,
i.e., 22.12.2014. Paper Nos. C-24/1 and C24/2 have not been denied by the
defendants and the authenticity of the said
documents have not been questioned by the
defendants. The Medical Officer on duty
who issued the discharge certificate was
not examined by either of the parties. There
can be many reasons for the entry in the
6 All. The National Insurance Co. Ltd. Vs. Vishram & Ors.
1205
discharge slip showing that the injured was
admitted
in
the
Trauma
Centre
on
23.12.2014. The said entry could be an
error caused due to over sight or could be
because the deceased may not have been
officially admitted on the said date in the
Trauma Centre because of shortage of
space / beds and may have been admitted
on the next date after space / bed was
available. It is common knowledge that
many
times
patients
are
unofficially
acommodated
in
the
verandahs
and
galleries of the hospitals because of
shortage of space and beds in the hospitals
but are treated by the doctors and are
admitted officially only when beds are
vacated by the already admitted patients.
The aforesaid practice explains the entries
in Paper Nos. C-24/1 and C-24/2. It may
also be noted that P.W. - 2 who got the
deceased admitted in Trauma Centre was
not cross-examined by the opposite parties
regarding the entries in the discharge slip
even though from the cross-examination of
P.W. - 1, it appears that the attention of
P.W. - 1 was brought to the aforesaid entry
in the discharge slip. P.W. - 1 is not an eyewitness of the incident or the fact regarding
admission of the injured / deceased in the
Trauma Centre on 22.12.2014 and in her
testimony, P.W. - 1 has stated that she did
not go to K.G.M.U. but has testified that
her husband was taken to K.G.M.U. from
Bajrang Hospital by P.W. - 2 on the same
date. In light of the aforesaid, the testimony
of P.W. - 2 cannot be rejected merely on
the ground that the date of admission of the
deceased in the Trauma Centre as stated by
P.W. - 1 and P.W. - 2 is different from the
date of his admission in the Trauma Centre
as recorded in the discharge slip.

12. It was also argued by the counsel
for the appellant that the site plan also
falsifies the testimony of P.W. - 2 in as
much as in his testimony, the P.W. - 2 has
stated that the accident occurred in front of
Bajrang Hospital while the site plan shows
that the accident occurred in front of Heera
Complex. I have perused the site plan
prepared by the police in Case Crime No.
476 of 2014 which is part of the paper book
submitted by the appellant. A perusal of the
site plan shows that both Heera Complex
and Bajrang Hospital are adjacent to the
road on which the accident took place.
Heera Complex is on the north side of the
road while Bajrang Hospital is on the south
side of the road. The site plan does show
that the accident occurred on the north side
of the road which is adjacent to Heera
Complex. But in light of the locations of
Bajrang Hospital and Heera Complex as
well as the fact that the injured was
immediately shifted to Bajrang Hospital,
not much importance is to be given to the
difference between the statement of P.W. -
2 and the site plan regarding location of
different buildings.

13. The route chart of the offending
vehicle filed by the defendant does not by
itself disprove the case of the claimants as
there is no evidence that the offending
vehicle had scrupulously followed the
schedule given in the route chart.

14. The accident has been proved by
the testimony of P.W. - 2, who is an eyewitness of the incident. A charge-sheet has
also been filed by the police against the
driver of the offending vehicle in Case
Crime No. 476 of 2014. The post-mortem
indicates that death occurred due to antemortem injuries and the nature of the
injuries shows that the same were caused in
an accident. In light of the aforesaid, the
evidence on record proves that Sushil was
injured on 22.12.2014 in the accident that
took place due to rash and negligent driving
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
of the offending vehicle and subsequently
died due to the injuries caused in the
accident. The findings of the Tribunal on
Issue No. 1 are affirmed.

15. So far as the findings of the
Tribunal on Issue No. 2 is concerned, there
is no evidence to show any contributory
negligence of the deceased. The site plan
submitted by the police indicates that the
deceased was on the left side of the road. In
view of the aforesaid, the findings of the
Tribunal on Issue No. 2 are also affirmed.

16. So far as the findings on Issue
Nos. 3 and 4 are concerned, the same have
not been challenged by the Insurance
Company in their present appeal. The
policy documents filed by the owner of the
vehicle showed that the vehicle was insured
with the appellant from 15.10.2014 to
14.10.2015. The accident took place on
22.12.2014. The vehicle was insured with
the appellant on the date of accident.
Similarly, the driver of the offending
vehicle was issued a driving licence on
19.10.2004 which was valid till 18.7.2023.
In light of the aforesaid, the findings of the
Tribunal on Issue Nos. 3 and 4 are also
affirmed.

17. So far as the grant of
compensation
to
the
claimants
is
concerned, the Tribunal has held the age of
the deceased as 24 years old. The findings
of the Tribunal on the age of the deceased
has not been challenged either by the
claimants or the appellant. In light of the
aforesaid, the compensation has to be
computed holding the age of the deceased
to be 24 years.

18. It was the case of the claimants
that the deceased worked as a Loader with
Usha Company and with private traders
and earned Rs.9,000/- per month. The said
fact has been testified by P.W. - 1. In his
testimony, the P.W. - 2 has also stated that
the deceased was going with him to join his
duty at Usha Company and they were the
employees of the contractor engaged by the
Usha Company and did the job of a Loader.
However, there is no document on record
to prove the income of the deceased. The
Tribunal has computed the compensation
payable to the claimants on the notional
income of the deceased as Rs.100/- per day.

19. In New India Assurance Co.
Ltd. vs Smt. Resha Devi & Others (2017)
3 ADJ 685, a Division Bench of this Court
held that the notional income of an
unskilled labour cannot be taken to be less
than Rs.200/- per day. The observations of
this Court in Paragraph Nos. 9 and 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.
6 All. The National Insurance Co. Ltd. Vs. Vishram & Ors.
1207

10. .....

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."

(emphasis added)

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

21. The opposite party no. 1 /
claimant no. 1 is the father of the deceased,
opposite party no. 2 / claimant no. 2 is the
mother of the deceased, opposite party no.
3 / claimant no. 3 is the wife of the
deceased and opposite party no. 4 /
claimant no. 4 is the minor son of the
deceased. In United India Insurance
Company Ltd. vs. Satinder Kaur @
Satwinder Kaur & Ors., 2021 (11) SCC
780, it has been held that ''subject to
evidence to the contrary, the father was
likely to have his own income and would
not be considered to be a dependent, hence,
the mother alone will be considered to be a
dependent.' The claimants have not filed
any evidence to show that the father of the
deceased had no income of his own. In
view of the judgment of the Supreme Court
in Satinder Kaur (supra), only the mother,
the wife and the minor son of the deceased
shall be considered his dependent for
deciding the deductions to be made towards
personal and living expenses of the
deceased. It was held in Sarla Verma (Smt)
& Ors. vs Delhi Transport Corporation &
Anr. 2009 (6) SCC 121 that where the
dependent family members of the deceased
are 2 to 3, 1/3 is to be deducted towards
personal and living expenses of the
deceased. The Tribunal has wrongly
deducted 1/4 as personal and living
expenses of the deceased on the premise
that
more
than
three
persons
were
dependent on the deceased. In view of the
aforesaid, 1/3 is to be deducted towards
personal and living expenses of the
deceased.

22. The deceased was 24 years old
and, therefore, according to Sarla Verma
(supra), a multiplier of 18 has to be applied
while computing the compensation payable
to the claimants.

23. In Kirti & Anr. vs Oriental
Insurance Company Ltd. 2021 (2) SCC
166, the Supreme Court has held that
adding
future
prospects
where
compensation is computed on the notional
income of the deceased is a component of
just compensation. The observations of the
Supreme Court in Paragraph Nos. 13 and
39
of
the
aforesaid
judgment
are
reproduced below :-

"13. Given how both deceased
were below 40 years and how they have not
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
been
established
to
be
permanent
employees, future prospects to the tune of
40% must be paid. The argument that no
such future prospects ought to be allowed
for those with notional income, is both
incorrect in law and without merit
considering the constant inflation-induced
increase in wages. It would be sufficient to
quote the observations of this Court in Hem
Raj v. Oriental Insurance Co. Ltd., as it
puts at rest any argument concerning nonpayment of future prospects to the deceased
in the present case:

"7. We are of the view that there
cannot be distinction where there is
positive evidence of income and where
minimum
income
is
determined
on
guesswork in the facts and circumstances
of a case. Both the situations stand at the
same footing. Accordingly, in the present
case, addition of 40% to the income
assessed by the Tribunal is required to be
made."

39. Taking the above rationale
into account, the situation is quite clear
with respect to notional income determined
by a court in the first category of cases
outlined earlier, those where the victim is
proved to be employed but claimants are
unable to prove the income before the
court. Once the victim has been proved to
be employed at some venture, the necessary
corollary is that they would be earning an
income. It is clear that no rational
distinction can be drawn with respect to the
granting of future prospects merely on the
basis that their income was not proved,
particularly when the court has determined
their notional income."

(emphasis added)

24. Thus, the future prospects have to
be added in the notional income of the
deceased. The deceased was 24 years old.
The proportion of the income to be added
in the future prospects of the deceased shall
be
considered
subsequently
in
the
judgment. At this stage, it may be noted
that 50% has been added by the Tribunal as
future prospects in the income of the
deceased.

25. It was argued by the counsel for
the claimants that the claimants were
entitled to separate compensation for loss
of consortium as awarded in Magma
General Insurance Company Ltd. vs.
Nanu Ram 2018 SCC OnLine SC 1546
and also for loss of love and affection and
the amount to be awarded in the aforesaid
categories is to be decided on the basis of
the
amounts
awarded
in
National
Insurance Company Ltd. vs Pranay
Sethi & Ors. (2017) 16 SCC 680 as well
as Magma General Insurance (supra). It
was also argued by the counsel for the
claimants that the claimants are entitled to
compensation for loss of estate and funeral
expenses as held in Pranay Sethi (supra).

26. There is some difference between
the parameters for award of compensation
as prescribed by Rule 220-A and the
principles for award of compensation as
laid down by the Supreme Court in its
different judgments. Two differences which
are relevant for the present case are
considered below.

27. 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
:-
6 All. The National Insurance Co. Ltd. Vs. Vishram & Ors.
1209

(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.

28. In Pranay Sethi (supra), the
Supreme Court endorsed addition of 50%
as future prospects in the established
income of the deceased if he was below 40
years and was in a permanent job, 30% if
he was between 40 and 50 years and 15% if
the deceased was between 50 to 60 years. It
was further laid down in Pranay Sethi
(supra) that if the deceased was self
employed or on a fixed salary, 40% should
be added as future prospects in his
established income if he was less than 40
years, 25% should be added if he was
between the age of 40 and 50 years and
10% should be added if he was between 50
and 60 years. In Pranay Sethi (supra), it
was laid down that there should be no
addition of future prospects in the income
of the deceased if he was more than 60
years. The relevant observations of the
Supreme Court in Pranay Sethi (supra) are
reproduced below : -

"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:

59.3.
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
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."
1210 INDIAN LAW REPORTS ALLAHABAD SERIES

(emphasis added)

29. The difference between the
parameters prescribed by Rule 220-A(3) for
addition of future prospects in the income of
the deceased and the norms, for the said
purpose, laid down in Pranay Sethi (supra)
are evident. The difference is not only
regarding the percentage of the income of the
deceased which is to be added as future
prospects while determining compensation
but also regarding the age of the deceased till
which future prospects are to be added to his
income. Pranay Sethi (supra) recommends
that there should be no addition of future
prospects if the deceased was above 60 years
while Rule 220-A(3) provides for addition of
20% as future prospects in the income of the
deceased if he was above 50 years and
prescribes no maximum age after which
future prospects are not to be added in the
income of the deceased. Further, for the
purposes of adding future prospects, Rule
220-A(3) does not differentiate between a
deceased who had a permanent job and a
deceased who was on a fixed salary or a
deceased whose income is determined on
minimum wages while in Pranay Sethi
(supra) different norms have been prescribed
for adding future prospects in cases of
deceased who had a permanent job and a
deceased who was on a fixed salary. No
standard has been laid down in Pranay Sethi
(supra) for adding future prospects in case the
income of the deceased is determined on the
basis of minimum wages payable to skilled,
semi-skilled or unskilled worker at the
relevant time.

30. The other difference between the
principles laid down by the Supreme Court
in its different judgments and the norms
prescribed by Rule 220-A is regarding the
different
category
of
non-pecuniary
damages payable as compensation.

31.