# The New India Assurance Co. Ltd v. Smt. Nirmala Devi & Ors

- **Citation:** (2023) 8 ILRA 815
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-27
- **Case number:** First Appeal from Order No. 2576 of 2012
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-ltd-v-smt-nirmala-devi-ors-50603
- **Pages:** 12

## Headnote

A. Civil Law-Motor Vehicle Act, 1988Section
173-enhancement
of
compensation- The deceased sustained
injuries in the accident and died-On the
date of the accident the offending vehicle
was
insured
by
the
appellant-The
claimants
were
dependants
of
the
deceased-The deceased was 39 years of
age at the time of the accident- Uttar
Pradesh Motor Vehicles Rules, 1998 Rule
220A-3(i) of the Rules provides for future
prospects
of
a
deceased-
Since the
deceased below 40 years of age ,50% of
the salary shall be added in the actual
salary--Thus, the total compensation is
granted Rs. 32,69,710/- at the rate of
7%.(Para 1 to 52)

B. Order XLI Rule 33 of the Code of Civil
Procedure prescribing the power of court
of
appeal
clearly
provides
that
the
Appellate Court shall have power to pass
any decree and make any order which
ought to have been passed or made as the
case may require, and this power may be
exercised in favour of all or any of the
respondents or parties though they may
816 INDIAN LAW REPORTS ALLAHABAD SERIES
not have filed any cross appeal or
objection.(Para 28, 29)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

8 All. The New India Assurance Co. Ltd. Vs. Smt. Nirmala Devi & Ors.
815
Sr. No. Heads
Amount (in
Rupees)
1.
Annual Income
32774.72
2.
Deduction - 50%
as
per
section
4(1)(a) of E.C.
Act 1923

3.
Factor- 219.95 as
per Schedule IV
to the E.C. Act,
1923

4.
Income-
Rs.
2714.56
wages
per month as per
Minimum Wages
Act, 1948

5.
Compensation-
2714.56 x 219.95
x 50%
2,98.533.74
6.
Future prospects
1,49,266.87
7.
Non
pecuniary
(funeral expenses)
5000
8.
Total
compensation
4,52,800.61
9.
Interest
12%

67. The compensation calculated
under the M.V. Act by applying the
multipliers and the rate based calculation
under the E.C. Act eventually arrived at
almost the same figures. A chart in this
regard is part of the appendix. The chart
does not depict material differences in the
compensation amount in the facts and
circumstances of this case. (see appendixii).

68. Cross objection filed on behalf of
the claimants-respondents is allowed to the
extent indicated above and the appeal is
accordingly dismissed.
----------
(2023) 8 ILRA 815
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal from Order No. 2576 of 2012

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Smt. Nirmala Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Rahul Sahai, Sri Aditya Singh Parihar

Counsel for the Respondents:
Sri S. Jaiswal, Sri Ajit Singh Rana, Sri Ashok K.
Jaiswal, Sri Bharat Pratap Singh, Sri Devendra
Gupta, Sri Vipul Singh

A. Civil Law-Motor Vehicle Act, 1988Section
173-enhancement
of
compensation- The deceased sustained
injuries in the accident and died-On the
date of the accident the offending vehicle
was
insured
by
the
appellant-The
claimants
were
dependants
of
the
deceased-The deceased was 39 years of
age at the time of the accident- Uttar
Pradesh Motor Vehicles Rules, 1998 Rule
220A-3(i) of the Rules provides for future
prospects
of
a
deceased-
Since the
deceased below 40 years of age ,50% of
the salary shall be added in the actual
salary--Thus, the total compensation is
granted Rs. 32,69,710/- at the rate of
7%.(Para 1 to 52)

B. Order XLI Rule 33 of the Code of Civil
Procedure prescribing the power of court
of
appeal
clearly
provides
that
the
Appellate Court shall have power to pass
any decree and make any order which
ought to have been passed or made as the
case may require, and this power may be
exercised in favour of all or any of the
respondents or parties though they may
816 INDIAN LAW REPORTS ALLAHABAD SERIES
not have filed any cross appeal or
objection.(Para 28, 29)

The appeal is dismissed. (E-6)

List of Cases cited:

1. National Ins. Co. Vs Pranay Sethi (2014) 4
TAC 637 SC

2. Smt. Sarla Verma Vs DTC (2009) 2 TAC 677
SC

3. National Ins. Co. Ltd. Vs Smt. Vidyawati Devi
& ors. FAFO No. 2389 of 2016

4. Delhi Electric Supply Undertaking Vs Basanti
Devi

5. Mahant Dhangir & anr. Vs Madan Mohan &
ors.

6. Jitendra Kimshankar Trivedi & ors. Vs Kasam
Daud Kumbhar & ors.

7. Arun Kumar Agarwal & anr. Vs National Ins.
Co. Ltd. & ors.

8. New India Assr. Co. Ltd. Vs Urmila Shukla &
ors.

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The judgement is being structured
in the following conceptual framework to
facilitate the discussion:

I
Introduction
II
Case of the claimants & the
respondents
before
the
learned
tribunal
III
Compensation
awarded
by
the
learned tribunal
IV
Submissions of learned counsels for
parties
V
Issues for consideration:
A.
Factum of the accident
B.
Liability
of
Insurance
Company
C.
Maintainability of oral cross
objection
D.
Quantum of compensation
under different heads:

Future Prospects
.
Conventional Heads

Multiplier
.
Interest
E.
Determination
of
Compensation
to
which
claimants-respondents
are
entitled
VI
Conclusion and Directions

I. INTRODUCTION

2. This first appeal from order arises
from the judgment and award dated
05.03.2012 passed by the learned Motor
Accident
Claims
Tribunal/learned
Additional District Judge/ Special Judge, in
Motor Accident Claim Petition No.171 of
2010 (Smt. Nirmala Devi and others Vs.
Ramdev
Shukla
and
others),
partly
allowing the claim made by the claimants.

3. The first appeal from order has
been filed by the Insurance Company
contesting
the
liability
to
pay
the
compensation and also the quantum of
compensation awarded by the learned
Tribunal.

II. Case of the claimants and the
respondents before the learned Tribunal:

4. Briefly the case of the claimants
before the learned tribunal was that the
8 All. The New India Assurance Co. Ltd. Vs. Smt. Nirmala Devi & Ors.
817
deceased-Rajesh Kumar was serving a
constable in Border Security Force. On the
fateful day of 06.05.2010, he was riding a
motorcycle bearing registration No. UP 30M-1588 when tractor trolley laden with
sand bearing Registration No. UP27-C2688 collided with the said motorcycle.
The accident was caused by solely rash and
negligent driving of the driver of the
offending tractor trolley. The deceased
sustained died of injuries sustained in the
said accident. On the date of the accident
the offending vehicle was insured by the
appellant-New India Assurance Company
Ltd. The claimants were dependants of the
deceased. The deceased was 39 years of
age at the time of the accident.

III. Compensation awarded by the
learned tribunal:

5. The learned tribunal found that the
accident was caused by the rash and
negligent driving of the driver of tractor
trolley. The insurance company was liable
to pay the compensation.

6. The learned tribunal in the
impugned
judgment
dated
05.03.2012
awarded compensation depicted in a
tabulated form hereunder:

Sr.
No.
Heads
Amount Awarded
by the tribunal
1
Monthly
Income (A)
15,801/-
2
Annual
Income (B)
15801 x 12 =
1,89,612/-
3
Future
prospects (C)
NILL
4
Annual
Income
+
NILL
Future
Prospects
(B + C = D)
5
Deduction
towards
personal
expenses
1,89,612 x 1/3 =
63,204/-
6
Total
income
after deduction
(E)
1,89,612
-
63,204
=1,26,410/-
7
Multiplier (F) 11
8
Total loss of
dependency
(E x F)
1,26,410 x 11 =
13,90,510/-
9
Funeral
expenses
2000/-
10
Loss of love
and affection
5000/-
11
Loss estate
2500/-
12
Total
compensation
14,00,010/-
13
Interest
6%

IV. Submissions of learned counsels
for parties:

7. Shri Aditya Singh Parihar, learned
counsel holding brief of Shri Rahul Sahai,
learned counsel for the appellant-Insurance
Company contends that the accident never
occurred. This is a false claim. Secondly,
the liability was that of the tractor owner
since there was a breach of the Insurance
policy. Thirdly the compensation was
wrongly awarded.

8. Shri Vipul Singh, learned counsel
for the respondents-claimants supports the
findings affirming the liability of the
insurance company and has raised an oral
818 INDIAN LAW REPORTS ALLAHABAD SERIES
cross objection to the effect that the future
prospects to which the claimants were
undisputedly entitled have been unlawfully
denied by the learned trial court.

9. Per contra, Shri Aditya Singh
Parihar, learned counsel holding brief of
Shri Rahul Sahai, learned counsel for the
appellant Insurance Company contends that
the claimants-respondents cannot raise oral
cross objection at the stage of the appeal.

V. Issues for consideration:

10. After advancing their arguments,
learned counsel for both the parties agree
that though many grounds have been
pleaded, only the following questions fall
for consideration in this appeal:-

(A) Whether the accident as depicted
in the claim petition actually happened or
the
offending
vehicle
was
falsely
implicated only for the purpose of seeking
compensation?

(B) Whether there was breach of the
insurance policy by the owner of the
offending vehicle?

(C). Whether the oral cross objection
can be raised by the claimants at the stage
of appeal? If yes, to what extent?

(D).
Whether
learned
Tribunal
correctly computed the compensation these
various heads:- future prospects, multiplier,
conventional heads and interest ?

(E). Compensation amount to which
the claimants-respondents are entitled.

V A. Issue no. 1 :

Factum of the accident

11. The claimants introduced two
witnesses to establish the factum of the
accident and negligence of the driver of the
offending tractor trolley.

12. P.W. 2-Mahesh who is the brother
of the deceased testified before the learned
tribunal that he had witnessed the accident.
He deposed that on the fateful day he was
riding pillion on the motorcycle being
driven by his deceased brother. The
offending tractor trolley came at an
uncontrollable speed and collided head on
with the motorcycle. The accident was
caused solely by the rash and negligent
driving of the offending tractor trolley. The
deceased fell to the ground under the
impact of the collision and died of injuries
sustained in the accident. The tractor trolley
driver tried to flee at the spot. However, he
was overpowered by the villagers who
gathered at the site of the accident. The
tractor trolley as well as driver were taken
to the police station by the witnesses and
the
villagers.
The
police
authorities
detained the driver and seized the vehicle.
P.W. 2 Mahesh was also the informant who
had promptly lodged an F.I.R. He had
stated under cross examination that the
registration number of the tractor trolley
painted on the vehicle was illegible.

13. P.W.-3 Sheesh Ram upon entering
the witness box asserted that he was an eye
witness to the accident. He too confirmed
the death of the deceased in the accident
and the fault of the driver of the offending
vehicle.

14. The testimonies of both P.W.2
Mahesh and P.W. 3-Sheesh Ram were not
shaken under cross examination. Some
minor contradictions were highlighted on
behalf of the Insurance Company as
regards the testimony of the two witnesses.
However, these contradictions are not
8 All. The New India Assurance Co. Ltd. Vs. Smt. Nirmala Devi & Ors.
819
material and do not take away the credit of
the said witnesses.

15. The F.I.R. version is in conformity
with the statements of the witnesses before
the learned tribunal. The argument on behalf
of the Insurance Company that the vehicle
details were missing in the F.I.R., does not
adversely impact the compensation claim
made by the claimants. It is well settled that
the F.I.R. is not an encyclopedia of all facts.
Moreover satisfactory reasons have been
given by the informant for absence of said
details in the F.I.R.

16. The learned trial court which had
the advantage of observing the demeanour of
the witnesses also found them to be worthy of
credit and believed their testimonies. This
Court has no reason to take any other view
regarding the depositions of the said
witnesses. The oral testimonies of the eye
witnesses are also corroborated in substance
by the F.I.R.

17. The learned counsel for the
Insurance
Company
emphasised
some
discrepancies in evidence collected during
investigations and faulted the seizure memo.
This
may
reflect
that
some
aspects
deficiencies in the police investigations. But
the same can not have an adverse bearing on
the claim made by the claimants under the M
V Act. Criminal proceedings including police
investigations into the offence are distinct
from compensations claims under the Motor
Vehicles Act. Both proceedings differ in
scope, purpose, procedure, standard of
evidence and relief sought.

18. In this wake, this Court finds that all
relevant facts to establish the factum of the
accident and the rash and negligent driving
on the part of the driver of the offending
vehicle were fully established by the
applicable standards of evidence before the
learned Motor Accident Claims Tribunal. The
findings of the learned tribunal on the issue
are upheld.

V B. Issue No. 2 :

Liability of Insurance Company

19. The submission on behalf of the
Insurance Company that there was breach in
the insurance policy by the owner of the
tractor trolley, inasmuch, it was being used
for commercial purposes. Mere fact of
loading the tractor trolley with sand and
wooden doors ipso facto does not lead to
inference that the vehicle was for commercial
purposes and there was breach of insurance
policy.

20. The burden of proof of breach of the
insurance policy was on the Insurance
Company which they failed to do before the
learned tribunal. No such material was
brought to the notice of this Court as well.

21. The finding of the learned tribunal
to the effect that the breach of the insurance
policy could not be established by the
Insurance Company is not liable to be
interference with. This Court finds for the
claimant
and
respondent
against
the
appellant-Insurance company on this issue.

22. To sum up, the accident was caused
solely by the negligence of the driver of the
tractor trolley, and the Insurance Company
and is fully liable to pay compensation.

V C. Issue No. 3 :

Maintainability
of
oral
cross
objection

23. Grant of compensation under the
head
of
future
rise
in
income
is
820 INDIAN LAW REPORTS ALLAHABAD SERIES
indispensable part of just compensation
which duly settled by good authorities in
point. Both learned counsels for the parties
agree on the position of law. However, the
argument on behalf of the appellantInsurance Company that this ground cannot
be taken in oral cross objection at this stage
of the appeal, shall now be dealt with.
Various judgements have been cited at the
Bar by the respective parties to support
their case.

24. The question whether oral
objections
can
be
raised
for
an
enhancement of compensation at the stage
of appeal has been well settled by good
authorities in point.

25. The jurisdiction of the appellant
court to allow the parties to take oral
objections is traceable to the power of the
court of appeal enumerated in Order XLI
Rule 33 of the CPC. The Order XLI Rule
33 of the CPC is reproduced hereinafter :-

"Rule 33. Power of Court of Appeal.-
The Appellate Court shall have power to
pass any decree and make any order which
ought to have been passed or made and to
pass or make such further other decree or
order as the case may require, and this
order may be exercised by the Court
notwithstanding that the appeal is as to part
only of the decree and may be exercised in
favour of all or any of the respondents or
parties may not have filed any appeal or
objection and may, where there have been
decrees in cross suits or where two or more
decrees are passed in one suit, be exercised
in respect of all or any of the decrees,
although an appeal may not have been filed
against such decree."

26. The phraseology implied by the
legislature in Order XLI Rule 33 of the
CPC empowers the Appellate Court as
under:

"to pass or make such further or other
decree or order as the case may require".
(emphasis supplied)

27. The provision ensures that the
arms of law are long enough to reach
injustice and the arms of the Court strong
enough to serve justice. Drawing its power
from the aforesaid provision to the
Appellate Court may issue necessary
directions to serve the ends of justice.
Specifically in cases arising out of the
Motor Vehicles Act, 1988 the appellate
court may exercise these powers for grant
of just compensation.

28. A Division Bench of this Court in
National Insurance Co. Ltd. vs. Smt.
Vidyawati
Devi
and
others1
while
construing the ambit of Order XLI Rule 33
of the CPC held as under:

"Order XLI Rule 33 of the Code of
Civil Procedure prescribing the power of
court of appeal clearly provides that the
Appellate Court shall have power to pass
any decree and make any order which
ought to have been passed or made as the
case may require, and this power may be
exercised in favour of all or any of the
respondents or parties though they may not
have filed any cross appeal or objection."

29. Scope of Order XLI Rule 33 of
the CPC also fell for consideration before
the Supreme Court in Mahant Dhangir
and another v. Madan Mohan and
others2. While interpreting the vast ambit
of the phrase "as the case may require"
employed in Order XLI Rule 33 of the CPC
the Court opined that the provision enjoins
the appellate court to do complete justice
8 All. The New India Assurance Co. Ltd. Vs. Smt. Nirmala Devi & Ors.
821
by in Mahant Dhangir (supra) holding as
under:

"The sweep of the power under Rule
33 is wide enough to determine any
question not only between the appellant
and
respondent,
but
also
between
respondent
and
co-respondents.
The
appellate Court could pass any decree or
order which ought to have been passed in
the circumstances of the case. The appellate
court could also pass such other decree or
order as the case may require. The words
"as the case may require" used in Rule 33
Order 41 have been put in wide terms to
enable the appellate Court to pass any order
or decree to meet the ends of justice. What
then should be the constraint ? We do not
find many. We are not giving any liberal
interpretation. The rule itself is liberal
enough. The only constraint that we could
see, may be these : That the parties before
the lower Court should be there before the
appellate Court. The question raised must
properly arise out of the judgment of the
lower Court. If these two requirements are
there, the appellate Court could consider
any objection against any part of the
judgment or decree of the lower Court. It
may be urged by any party to the appeal. It
is true that the power of the appellate Court
under Rule 33 is discretionary. But it is a
proper exercise of judicial discretion to
determine all questions urged in order to
render complete justice between the parties.
The Court should not refuse to exercise that
discretion on mere technicalities."

30. The powers of the appellate court
were interpreted in similar terms in Delhi
Electric Supply Undertaking vs. Basanti
Devi3:

"We are of the considered view that
the conditions as laid down in provisions of
Order XLI Rule 33 are satisfied in the
present case. In Delhi Electric Supply
Undertaking (Supra) the Hon'ble Apex
Court
has
observed
that
when
circumstances exist which necessitate the
exercise of discretion conferred by Rule 33,
the court cannot be found wanting when it
comes to exercise its powers."

31. Per contra, the judgement relied
upon by the Insurance Company rendered
by the Supreme Court in Ranjana Prakash
v. Divl. Manager4, restricts the scope of the
appellate court according to the learned
counsel for the appellant. In particular, the
following observations in Ranjana (supra)
relied upon to support their contention to
negate the claim of the claimants:

"7.This principle also flows from
Order 41 Rule 33 of the Code of Civil
Procedure which enables an appellate court
to pass any order which ought to have been
passed by the trial court and to make such
further or other order as the case may
require, even if the respondent had not filed
any appeal or cross-objections. This power
is entrusted to the appellate court to enable
it to do complete justice between the
parties. Order 41 Rule 33 of the Code can
however be pressed into service to make
the award more effective or maintain the
award on other grounds or to make the
other parties to litigation to share the
benefits or the liability, but cannot be
invoked to get a larger or higher relief. For
example,
where
the
claimants
seek
compensation against the owner and the
insurer of the vehicle and the Tribunal
makes the award only against the owner, on
an appeal by the owner challenging the
quantum, the appellate court can make the
insurer jointly and severally liable to pay
the compensation, along with the owner,
even though the claimants had not
822 INDIAN LAW REPORTS ALLAHABAD SERIES
challenged the non-grant of relief against
the insurer. Be that as it may.

8.Where an appeal is filed challenging
the quantum of compensation, irrespective
of who files the appeal, the appropriate
course for the High Court is to examine the
facts
and
by
applying
the
relevant
principles,
determine
the
just
compensation.
If
the
compensation
determined by it is higher than the
compensation awarded by the Tribunal, the
High Court will allow the appeal, if it is by
the claimants and dismiss the appeal, if it is
by the owner/insurer. Similarly, if the
compensation determined by the High
Court is lesser than the compensation
awarded by the Tribunal, the High Court
will dismiss any appeal by the claimants for
enhancement, but allow any appeal by the
owner/insurer for reduction. The High
Court
cannot obviously
increase
the
compensation
in
an
appeal
by
the
owner/insurer
for
reducing
the
compensation, nor can it reduce the
compensation in an appeal by the claimants
seeking enhancement of compensation."

32. I am afraid the judgement of the
Supreme Court rendered in Ranjana (supra)
has to be read in light of the law settled by
good authorities in point which do not
import any such restrictions on the
appellate power. The said authorities
including Smt. Vidyawati Devi (supra),
Mahant Dhangir (supra) and Basanti
Devi (supra) were not referred to the Court
in Ranjana (supra).

33. The scope of the powers of the
appellate court should also be construed in
light of the nature of the legislation. Motor
Vehicles Act is a welfare legislation and the
endeavour of the appellate court should be
to ensure that the beneficial entitlements
under the Motor Vehicles Act are not
denied to any party and the lis is decided
quickly. Error in the face of the record by
the
learned
tribunal
cannot
remain
uncorrected by the appellate court if cross
objections are raised. Remanding the
matters in such cases will only prolong the
litigation. This may result in the exhaustion
of the claimants who are already suffering
from the privation imposed by misfortune.

34. Upon consideration of the
authorities discussed in the preceding
paragraphs, the legal position in regard to
the scope of the appellate court to entertain
oral cross objections at the stage of hearing
of the appeal is distilled thus:

A. Oral cross objections have to be
considered only in the event that the case
requires the court to do so for doing
complete justice between the parties and to
award just compensation.

B. Parties before the lower court
should arrayed as parties in the appeal.

C. The oral cross objections should
arise directly out of the judgement rendered
by the learned tribunal.

D. Parties which are likely to be
adversely affected by the findings of the
appellate court have to be afforded an
opportunity of hearing while exercising the
powers under Order 41 Rule 33 CPC.

E. If the award of the tribunal is
contrary to or in ignorance of the holdings
of constitutional courts which settle the
fundamental heads of just compensation
and the issue only requires application of
simple math formula the court may
entertain and allow the oral cross objection.

F. The appellate may always take
measures, pass orders, or mould relief to
mitigate hardship or obviate prejudice to
the parties while entertaining oral cross
objections at a belated stage in the interests
of justice.
8 All. The New India Assurance Co. Ltd. Vs. Smt. Nirmala Devi & Ors.
823

G. In case the oral cross objections
require a complex reappraisal of evidence
or consideration of elaborate arguments or
laboured reasoning the appellate court may
even decline the prayer for consideration of
oral cross objection.

35. The entitlement of the claimants
for future prospects is settled by good
judicial authorities. The fundamental facts
(income etc.) have been established before
the learned tribunal. Computing future
prospects requires application of a simple
mathematical formula in this case. The
learned tribunal has admittedly failed to
make any award under the aforesaid head
consistent with said authorities.

36. The pre-requisites of exercising
the powers to entertain the oral cross
objections by exercising powers under
Order 41 Rule 33 of C.P.C. are established
in this case.

37. In the instant case, rise in future
income is a given and grant of future
prospects has been held to be an
entitlement of the claimants in Sarla
Verma and others Vs. Delhi Transport
Company and another5 and National
Insurance Company Ltd. Vs. Pranay
Sethi and others6.

38. Settled holdings of court, courts
crystallise entitlements of rival parties.
Refusal of entitlement results in denial of
just compensation.

39. The appellate court can take all
necessary steps to exercise its power to
award just compensation at the stage of the
appeal. Once law is settled, endeavour of
the court is to award just compensation in
terms of such authorities in point and the
statute empowers the appellate court to do
so. [See: Jitendra Kimshankar Trivedi
and others vs. Kasam Daud Kumbhar
and others7, Arun Kumar Agarwal and
another vs. National Insurance Company
Ltd. and others8]

V D. Issue no. 4:

Quantum of compensation under
different heads

a. Future Prospects :

40. The future prospects are liable to
be calculated in accordance with the Uttar
Pradesh Motor Vehicles Rules, 19989. Rule
220A-3(i) of the Rules is relevant and is
reproduced hereunder:

"(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."

41. The UP Rules, 1998 came up for
consideration before the Supreme Court in
New India Assurance Co. Ltd. vs. Urmila
Shukla and others10. In Urmila Shukla
(supra) upon consideration of various
judgements including National Insurance
Company Ltd. Vs. Pranay Sethi and
others11 held:

"10. The discussion on the point in
Pranay Sethi was 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
in Pranay Sethi cannot 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
824 INDIAN LAW REPORTS ALLAHABAD SERIES
prescription of 15% in cases where the
deceased was in the age bracket of 50-60
years as stated in Pranay Sethi cannot 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." (emphasis supplied)

42. The Rules of the Uttar Pradesh
Motor Vehicles Rules, 1998 were not under
consideration before the Supreme Court in
Pranay Sethi (supra) or Sarla Verma (Smt)
and others Vs. Delhi Transport Company
and another12. Future prospects in Pranay
Sethi (supra) were determined without
noticing the U.P. Rules,1998. This fact was
adverted to in Urmila Shukla (supra):

"8.It is submitted by Mr. Rao that the
judgment inPranay Sethidoes not show that
the attention of the Court was invited to the
specific rules such as Rule 3(iii) which
contemplates addition of 20% of the salary
as against 15% which was stated as a
measure inPranay Sethi. In his submission,
since the statutory instrument has been put
in place which affords more advantageous
treatment, the decision in PranaySethiought
not to be considered to limit the application
of such statutory Rule."

43. The U.P. Rules, 1998 are statutory
in nature and their operation is not stymied
by Pranay Sethi (supra). The U. P. Rules,
1998 have the force of law and shall apply
with full force in appropriate cases. The
U.P. Rules, 1998 are more beneficial for the
claimants than the provisions made in
Pranay Sethi (supra) for them. The holdings
in Pranay Sethi (supra) can not dilute the
advantages conferred by U.P. Rules, 1998
upon the eligible beneficiaries.

44. This Court finds that the
claimants/respondents are entitled to 50%
enhancement in wages towards future
prospects, consistent with the UP Rules,
1998. The necessary changes in the award
shall be accordingly made.

45. In this wake, the issue of grant of
future prospects and oral cross objection
are found in favour of the claimants and
against the Insurance Company.

b. Conventional Heads:

46. The amount determined under
conventional heads in the impugned award
is at variance with Pranay Sethi (supra).
The conventional heads were fixed in
Pranay Sethi (supra) by holding as under:

"54.
......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. It seems to us that
reasonable figures on conventional heads,
8 All. The New India Assurance Co. Ltd. Vs. Smt. Nirmala Devi & Ors.
825
namely, loss of estate, loss of consortium
and funeral expenses should be Rs.
15,000/-, Rs. 40,000/- funeral expenses
should be Rs. 15,000/-, Rs. 40,000/- And
Rs. 15,000/- respectively."

47. The figure under conventional
heads determined in Pranay Sethi (supra)
shall be applicable to the facts of this case.
The award is modified accordingly.

c. Multiplier:

48. The age of the deceased was 39
years at the time of his death. Multiplier of
15 which has been correctly applied by the
learned tribunal and in line with the
Pranay Sethi (supra) and Sarla Verma
(supra).

d. Interest:

49. Interest of 7% is just and lawful in
the facts of this case.

V E. Issue No. 5:

Determination of Compensation to
which
claimants-respondents
are
entitled:

50. In the wake of preceding
discussion, the amount of compensation
awarded to the claimants is tabulated
below:

i. Date of Accident -
06.05.2010
iii. Name of the deceased -
Rajesh
Kumar
iv. Age of the deceased -
39 years
v. Occupation of the deceased
-
Constable
(BSF)
(Govt.
Servant)
vi. Income of the deceased -
15,801/-
vii.
Name,
Age
and
Relationship of claimants with
the deceased

Sr. No. Name
Age Relation
1
Smt. Nirmala
Devi
38
Wife
2
Km.
Anuradha
15
Daughter
3.
Km. Anupam 13
Daughter
4.
Abhishek
11
Son
5.
Vivek
8
Son
6.
Smt.
Ram
Shree
60
Mother

vii. Computation of Compensation
Sr. No. Heads
Amount
(in
Rupees)
1
Monthly
Income
15,801/-
2
Annual
Income
1,89,612/-
3
Future
Prospects
30%
1,89,612 x 30% =
94,806/-
4
Annual
Income
+
Future
Prospects
1,89,612+ 94,806
= 2,84,418/-
6
Deduction
1/4th
2,84,418 x 1⁄4 =
71,104/-
7
Total income
after
1/4th
deduction
2,84,418
-
71,104
=
2,13,314/-
826 INDIAN LAW REPORTS ALLAHABAD SERIES
8
Multiplier
(G)
2,13,314 x 15 =
31,99,710/-
9
Total loss of
dependency
31,99,710/-
10
Conventional
Heads
(a) Loss of
consortium
(b) Loss of
Estate
(c)
Funeral
Expenses
70,000/-
11
Total
Compensatio
n
32,69,710/-
12
Interest
7%

VI. Conclusion and Directions:

51. The amount of compensation to
which the claimants have thus been found
entitled shall be deposited by the Insurance
Company within three months before the
learned tribunal. Thereafter the learned
tribunal shall release the amount to the
claimants without delay. The amount
already disbursed to the claimants (if any)
shall be duly adjusted.

52. The amount of Rs.25,000/-
deposited by the appellant while instituting
the appeal shall be forthwith remitted to the
learned tribunal. The amount shall be paid
to the claimants as part of the awarded
compensation amount.

53. The cross-objection filed on
behalf of the respondents-claimants is
allowed and the appeal is accordingly
dismissed.
----------
(2023) 8 ILRA 826
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.08.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Government Appeal No. 356 of 2022
With
Crl. Appl. No. 1823 of 2022
&
Crl. Appl. u/s 372 Cr.P.C. No. 672 of 2022

State of U.P. ...Appellant
Versus
Anil Kumar & Ors. ...Respondents

Counsel for the Appellant:
Sri Shiv Kumar Pal

Counsel for the Respondents:
Sri Siddharth Shankar, Sri Satish Chandra
Mishra,
Sri
Sathish
Chandra
Pandey,
Sri
Siddharth Shankar

Criminal Law - Indian Penal Code, 1860 -
Sections 498 - A, 304 - B, 120 - B &
302/34 - Dowry Prohibition Act, 1961 -
Section 4 - conviction under Section 306 IPC
(abetment
of
suicide)
was
legally
impermissible - charges of homicidal death
cannot culminate in conviction for suicidal
death - no independent witness of cruelty
produced - allegations of dowry harassment
made solely through phone calls without
contemporaneous
written
complaints
or
electronic evidence - postmortem showed
intact hyoid bone; medical opinion suggested
suicide by hanging - not a case of murder -
failure of prosecution to prove cruelty or
dowry demand beyond reasonable doubt -
benefit of doubt must go to accused - appeal
of accused - appellant allowed - conviction set
aside - appeals by St. and informant against
acquittal dismissed.

Relevant Sections:

Sections 498 - A, 304 - B, 120 - B, 302/34, 306
IPC; Section 4 Dowry Prohibition Act; Section
107 IPC; Section 372 Cr.P.C.