# The New India Insurance Co. Ltd v. Shallo Begum & Ors

- **Citation:** (2024) 10 ILRA 591
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-25
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-insurance-co-ltd-v-shallo-begum-ors-51063
- **Pages:** 17

## Headnote

A. Civil Law - Motor Vehicles Act, 1988 -
Sections 134(C), 149 & 168 - Claim
petition has been filed - Claimants proved
death
of
deceased
in
accident
by
offending vehicle i.e. Truck on account of
rash and negligent driving of it's vehicle -
Scooty was hit from back side without
blowing
horn
-
Insurance
company
submitted that scooty was damaged from
front side, therefore, it can't be said that
accident was from back side, negligence
of deceased also in accident - Deceased
was 58 years of age at time of accident
and
his
daughter
was
given
compassionate appointment, no future
loss of income - Held, no evidence
regarding
allegation
of
contributory
negligence - Once an enquiry held by
tribunal after affording opportunity to
appellant,
plea
of
appellant
that
provisions of Section 134 (c) of Act, 1988
have
not
been
complied,
therefore,
appellant was not liable to make payment
of compensation was misconceived, it has
no concern with claim of dependents and
family members of deceased. (Para 3, 16,
18, 38)

B.
Civil
Law
-
Enhancement
of
compensation - Claimant proved that
Tribunal has considered only salary of
deceased and deducted amount of over
time being earned by him monthly - Held,
department admitted that income shown
in Form-16 was arrears of salary, said
income was not annual income - Perusal
of Form-16 doesn't indicate any over time
income separately - Only income has been
shown
-
Not
entitled
for
any
enhancement. (Para 40, 41)
Appeal dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,831 of 53,740. This is a partial read: ask again with offset=39831 for what follows._

10 All. The New India Insurance Co. Ltd. Vs. Shallo Begum & Ors.
591
proof
as
regards
subsequent
acquisition
of
knowledge,
the
period of limitation would not
begin
from
01.08.2007
and,
therefore,
Section
17
of
the
Limitation Act would have no
application in the present case. The
suit, therefore, was barred by
limitation.
Third
question
is
answered accordingly.

33. For all the aforesaid
reasons, the second appeal has no
force
and
is,
accordingly,
dismissed.
----------
(2024) 10 ILRA 591
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.10.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal from Order Nos. 333 of 2023 & 18
of 2023

The New India Insurance Co. Ltd.
 ...Appellant
Versus
Shallo Begum & Ors. ...Respondents

Counsel for the Appellant:
Jitendra Narain Mishra

Counsel for the Respondents:
Nand Kishore Agarwal, Mayank Agarwal, R.K.S.
Chauhan

A. Civil Law - Motor Vehicles Act, 1988 -
Sections 134(C), 149 & 168 - Claim
petition has been filed - Claimants proved
death
of
deceased
in
accident
by
offending vehicle i.e. Truck on account of
rash and negligent driving of it's vehicle -
Scooty was hit from back side without
blowing
horn
-
Insurance
company
submitted that scooty was damaged from
front side, therefore, it can't be said that
accident was from back side, negligence
of deceased also in accident - Deceased
was 58 years of age at time of accident
and
his
daughter
was
given
compassionate appointment, no future
loss of income - Held, no evidence
regarding
allegation
of
contributory
negligence - Once an enquiry held by
tribunal after affording opportunity to
appellant,
plea
of
appellant
that
provisions of Section 134 (c) of Act, 1988
have
not
been
complied,
therefore,
appellant was not liable to make payment
of compensation was misconceived, it has
no concern with claim of dependents and
family members of deceased. (Para 3, 16,
18, 38)

B.
Civil
Law
-
Enhancement
of
compensation - Claimant proved that
Tribunal has considered only salary of
deceased and deducted amount of over
time being earned by him monthly - Held,
department admitted that income shown
in Form-16 was arrears of salary, said
income was not annual income - Perusal
of Form-16 doesn't indicate any over time
income separately - Only income has been
shown
-
Not
entitled
for
any
enhancement. (Para 40, 41)
Appeal dismissed. (E-13)

List of Cases cited:

1. Syed Basheer Ahmad & ors. Vs Mohammad
Jameel & anr.; (2009) 2 SCC 225

2. Divisional Controller, KSRTC Vs Mahadev
Shetty & anr.; (2003) 7 SCC 197, (Para 10 to 13)

3. St. of Har. & anr. Vs Jasbir Kaur & ors.; 2003
(3) T.A.C. 569 (S.C.)

4. St. of Guj. Vs Shantilal Mangaldas & ors.;
1969 (1) SCC 509

5. Gobald Motor Service Ltd. & anr.Vs R.M.K.
Veluswami & ors.; (1962) 1 SCR 929

6. Reliance General Insurance Company Ltd. Vs
Shashi Sharma & ors.; 2016 (4) T.A.C. 149
(S.C.)
592 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Sebastiani Lakra & ors.Vs National Insurance
company Ltd. & anr.; (2019) 17 SCC 465, 31,
(Para 4 to 6)

8. Sanjay Ramdas Patil Vs Sanjay & ors.; (2021)
10 SCC 306

9. Khub Chand & ors.Vs St. of Rajasthan; (1967)
1 SCR 120

10. National Insurance company Ltd. Vs Pranay
Shethi & ors.; (2017) 16 SCC 680, (Para 58)

11. Dinesh Kumar J. @ Dinesh J. Vs National
Insurance Comp. Ltd. & ors.; (2018) 1 SCC 750

12. National Insurance Company Ltd. Vs
Rekhaben & ors.; 2017 (3) ACCD 1372 (SC)/
(2017) 13 SCC 547, (Para 14 and 15)

13. The Oriental Insurance Comp. Ltd Vs Abhiraj
Chetri & anr.; 2018 (2) ACCD 862 (All)/ 2017
SCC OnLine AII 2384

14. National Insurance Company Ltd. Vs Pushpa
Rana & ors.; 2009 ACJ 287

15. Smt. Anjali & ors.Vs Lokendra Rathod &
ors.; 2022 LiveLaw (SC) 1012

16. National Insurance Co. Ltd.Vs Mannat Johal
& ors.; (2019) 15 SCC 260
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Shri Jitendra Narain Mishra,
learned counsel for the appellant in
F.A.F.O. No.333 of 2023 and learned
counsel for the respondent no.3 in F.A.F.O.
No.18 of 2023 (here-in-after referred as
learned counsel for the insurance company)
and Shri R.K.S. Chauhan, learned counsel
for the claimant-respondents no.1 to 3 in
F.A.F.O. No.333 of 2023 and learned
counsel for the appellant in F.A.F.O. No.18
of 2023 (here-in-after referred as learned
counsel for the claimants). None appeared
on behalf of the respondent nos.4 and 5 in
F.A.F.O.
No.333
of
2023
and
for
respondent nos.1 and 2 in F.A.F.O. No. 18
of 2023 i.e. the owner and driver of the
offending vehicle i.e. truck.

2. The F.A.F.O. No.333 of 2023
has been filed assailing the judgment and
award dated 16.09.2022 passed in Claim
Petition No.953 of 2014; Smt. Shallo
Begum and Others Vs. Mahendra Singh
and Others by Motor Accident Claims
Tribunal
(here-in-after
referred
as
M.A.C.T.), South, Lucknow. The F.A.F.O.
No.18 of 2023 has been filed for
modification of the judgment and award
dated
16.09.2022and
enhancement
of
compensation. Hence both the appeals are
being clubbed and decided together by this
common judgment and order.

3. Learned counsel for the
appellant
i.e.
insurance
company
in
F.A.F.O. No.333 of 2023 submitted that
contributory negligence of the deceased has
not been considered, whereas as per the
technical inspection report of scooty, on
which the deceased was going, was
damaged from the front side, therefore, the
plea of the claimant-respondent that the
truck insured with the appellant insurance
company had dashed from the back side
was not tenable and there was contributory
negligence of the deceased also. He further
submitted that the deceased was of 58 years
of age at the time of accident and since the
daughter of the deceased was given
appointment on compassionate ground in
his place after his death, therefore, there
was no future loss of income, hence the
future prospects could not have been
allowed. He further submitted that the
provision of Section 134(C) of the Motor
Vehicles Act, 1988 (here-in-referred as Act
of 1988) have not been complied and no
information to the appellant insurance
company was given after the accident by
the driver or in-charge of vehicle, therefore,
10 All. The New India Insurance Co. Ltd. Vs. Shallo Begum & Ors.
593
the appellant insurance company can not be
held
liable
to
pay
the
amount
of
compensation in view of Section 168 of the
Act of 1988.

4. On the basis of above, learned
counsel for the appellant submitted that
impugned judgment and award passed by
the tribunal is not sustainable in the eyes of
law and is liable to be set aside. He relied
on Syed Basheer Ahmad & Others Vs.
Mohammad Jameel & Another; (2009) 2
SCC 225, Divisional Controller, KSRTC
Vs. Mahadev Shetty & Another; (2003) 7
SCC 197, State of Haryana & Another
Vs. Jasbir Kaur & Others; 2003 (3)
T.A.C. 569 (S.C.), State of Gujarat Vs.
Shantilal Mangaldas & Others; 1969 (1)
SCC 509, Gobald Motor Service Ltd. &
Another Vs. R.M.K. Veluswami &
Others; (1962) 1 SCR 929, Reliance
General Insurance Company Ltd. Vs.
Shashi Sharma & Others; 2016 (4)
T.A.C. 149 (S.C.), Sebastiani Lakra &
Others Vs. National Insurance company
Ltd. & another; (2019) 17 SCC 465, 31,
Sanjay Ramdas Patil Vs. Sanjay &
Others; (2021) 10 SCC 306, Khub Chand
and Others Vs. State of Rajasthan;
(1967)
1
SCR
120
and
National
Insurance company Ltd. Vs. Pranay
Shethi & Others; (2017) 16 SCC 680.

5. Per contra, learned counsel for
the claimant-respondents no.1 to 3 in
F.A.F.O. No.333 of 2023 submitted that the
contentions of learned counsel for the
insurance company are misconceived and
not tenable. There was no contributory
negligence of the deceased because the
F.I.R. was lodged immediately after the
accident alleging that the truck insured by
the appellant insurance company had hit
the scooty from the back side, therefore, the
deceased fell down from the scooty and
came under the truck. He further submitted
that on hitting from back, the vehicle may
fell from the front side, also and damaged,
therefore, merely on the basis of damage
from front side, it can not be said that there
was any contributory negligence of the
deceased. He further submitted that the
violation of Section 134(C) of the Act of
1988, though has been pleaded in the
written statement, but not proved by
adducing any cogent evidence. Even
otherwise the violation of Section 134 (c)
can not be a ground for denying for
payment of compensation to the claimants.

6. Learned counsel for the
claimants further submitted that the age of
deceased and appointment of daughter of
the deceased on compassionate ground can
not be a ground for denial of future
prospects
because
the
compassionate
appointment or ex-gratia assistance can not
be considered as a measure of future
prospect on account of loss of life. Even
otherwise, the daughter of the deceased has
been appointed on very less emoluments in
comparison to the salary of the deceased at
the time of accident and prospective
enhancement in his emoluments. He further
submitted that it is settled proposition of
law that just and fair compensation is to be
awarded under the Act of 1988.

7. On the basis of above
submission of learned counsel for the
claimants is that the appeal filed by the
insurance company is misconceived and the
grounds taken are not tenable in the eyes of
law, therefore, it is liable to be dismissed
with cost.

8. Learned counsel for the
claimants in regard to F.A.F.O. No.18 of
2023 filed by them for enhancement of
compensation submitted that the learned
594 INDIAN LAW REPORTS ALLAHABAD SERIES
tribunal has considered only the salary of
the deceased and deducted the amount of
over time being earned by him monthly,
which was proved by the wife of the
deceased Smt. Sallo Begum. He further
submitted that the learned tribunal failed to
consider the annual income of the deceased
shown in Form-16 i.e. Rs.6,93,043/-, which
was issued and proved by the department
by
adducing
evidence.
Thus,
the
submission is that the F.A.F.O. No.18 of
2023 is liable to be allowed and the amount
of compensation is liable to be enhanced
accordingly.

9. Learned counsel for the
claimants relied on Dinesh Kumar J. @
Dinesh
J.
Vs.
National
Insurance
Company Ltd. & Others; (2018) 1 SCC
750, National Insurance Company Ltd.
Vs. Pranay Shethi & Others; (2017) 16
SCC 680, National Insurance Company
Ltd. Vs. Rekhaben & Others; 2017 (3)
ACCD 1372 (SC)/ (2017) 13 SCC 547,
The Oriental Insurance Company Ltd.
Vs. Abhiraj Chetri & One Another; 2018
(2) ACCD 862 (All)/ 2017 SCC OnLine
AII 2384, National Insurance Company
Ltd. Vs. Pushpa Rana & Others; 2009
ACJ 287, Smt. Anjali & Others Vs.
Lokendra Rathod & Others; 2022
LiveLaw
(SC)
1012
and
National
Insurance Company Limited Vs. Mannat
Johal & Others; (2019) 15 SCC 260.

10. Learned counsel for the
insurance company vehemently opposed
the submissions of learned counsel for the
claimants in regard to F.A.F.O. No.18 of
2023. He submitted that the over time
income
can
not
be
considered
for
assessment of the compensation because
over time is given only for the days an
employee works over time, which can not
be said to be fixed each and every month
and treated regular monthly income. He
further submitted that the departmental
witness has admitted the income shown in
Form-16 as the arrears of salary, therefore,
it can not be said that the said income was
annual income of the deceased, thus the
appellant
is
not
entitled
for
any
enhancement in compensation and the
appeal for enhancement of compensation
has been filed on misconceived and
baseless ground, which is liable to
dismissed.

11.

I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

12. The claim petition was filed
alleging therein that the deceased was
going on his scooty from ARTO office to
his house on 08.05.2014. When he reached
Barabirwa
Crossing,
Police
Station-
Krishna Nagar at 12:00 in the day, Truck
No.U.P.-78-BT-3289, being driven rashly
and negligently by its driver, hit the scooty
from the backside without blowing horn, on
account of which he fell down and came
under the truck, in which he suffered
serious injuries and died on the spot. The
deceased was working on the post of driver
in the Government service and getting
Rs.34,351/- per month as salary and
Rs.23,400/- as over time, thus total about
Rs.57,753/- per month. Accordingly the
compensation
of
Rs.100,00,000/-
was
claimed.

13. The written statement was filed
by the respondent no.1 in the claim petition
i.e. the owner of the vehicle denying most
of the averments made in the claim petition
and admitting that he is the owner of the
vehicle and respondent no.2 Prahlad in the
claim petition is the driver. It has also been
admitted that the vehicle was insured with
10 All. The New India Insurance Co. Ltd. Vs. Shallo Begum & Ors.
595
the respondent no.3 i.e. the National
Insurance Company Ltd. The vehicle was
being driven with valid papers. It was also
pleaded that no accident had occurred from
his vehicle. The accident has occurred on
account of negligence of the scooty,
therefore, the liability of compensation is of
the insurance company.

14.

The
National
Insurance
Company i.e. the respondent no.3 in the
claim petition filed written statement
denying most of the averments made in the
claim petition and stating that the accident
had occurred on account of negligence of
the driver of the scooty. The relevant
papers, such as first information report,
charge sheet, postmortem report, R.C.,
insurance, etc. has not been produced,
therefore, the claim petition is liable to be
dismissed.

15. Considering the pleadings of
the parties, nine issues were framed by the
tribunal. Thereafter oral as well as
documentary evidence was adduced by the
parties. After considering the pleadings of
the parties, the evidence and material on
record, the tribunal held that the accident
had occurred on account of rash and
negligent driving of the Truck No.U.P.-78BT-3289 and allowed the claim petition and
awarded an amount of Rs.27,45,863.16
alongwith annual interest at the rate of 7%
per annum from the date of filing of the
claim petition and directed to the National
Insurance Company Ltd. to make the
payment of amount as the truck was validly
insured and running in accordance with the
terms and conditions of the insurance
policy.

16. The claim petition has been
filed under Section 166 of Motor Vehicles
Act, 1988. The claimants have proved the
death of the deceased in the accident by the
offending vehicle i.e. the Truck No.U.P.-78BT-3289 on account of rash and negligent
driving of it's vehicle. The accident has not
been disputed by the insurance company.
The only dispute raised in regard to
accident by learned counsel for the
insurance company is that since the scooty,
on which the deceased was going was
damaged from the front side, therefore, it
can not be said that the accident was from
the
back
side,
therefore,
there
was
negligence of the deceased also in the
accident. The claim petition was filed
alleging that the truck was being driven
rashly and negligently by its driver, who hit
the scooty from the back side without
blowing horn. The accident had occurred
on 08.05.2014 at 12:00 in the day. The
F.I.R. of the accident was lodged on the
same date at 18:30 by the son of the
deceased alleging therein that while his
father was going back to his home from
ARTO office, where he had gone for
renewal of his license, the driver of the
Truck No.U.P.-78-BT-3289, driving the
truck rashly and negligently hit the scooty
from the back side at Bara Birwa, crossing
on account of which he fell down and came
under the front wheel of the truck and
suffered serious injuries. PW-3 Syed
Sikandar Mehdi is an eye witness of the
accident, who had seen the accident from
the distance of 40-45 steps. He has stated in
his cross examination that the scooty was
going on his side. The driver of truck
driving the truck rashly and negligently had
changed its side and hit the scooty from the
back side. It has also been stated by PW-3
that there was divider on the road at the
place of accident.

17. The perusal of the site plan i.e.
Paper No.C-12/8 indicates that the place of
accident is on the left side of the road from
596 INDIAN LAW REPORTS ALLAHABAD SERIES
Kanpur towards Chargbagh Lucknow.
There is divider at the place of accident and
both the vehicles have been shown going
towards the same direction. The site plan
has not been disputed by the insurance
company, therefore, the contention of
learned counsel for the insurance company
that the truck had not hit from the back side
as the scooty was damaged from the front
side is misconceived and not tenable.

18. The perusal of the Accident
Inspection Report of Scooty Activa i.e.
Paper No.C-12/17 indicates that the body
of the scooty was damaged from the right
side and front right indicator and stearing is
also damaged, therefore, it can not be said
that the scooty was damaged only from the
front side. Even otherwise, if a truck,
loaded with Morang, hit the scooty, it
may fall on any side being a two wheeler.
It is also not the case that the scooty was
run over by the truck. The case, as
pleaded, is that on being hit by the truck
from the back side, the deceased had
fallen and came under the front wheel of
the truck, which is possible in an accident
between a scooty which is a two wheeler
and balanced on two wheels while
driving and a four wheeler
truck,
therefore, the contention of the insurance
company that there was contributory
negligence of the deceased in the accident
also has no legs to stand and it is liable to
be repelled only and accordingly repelled.
Even otherwise, no evidence has been
produced in regard to allegation of
contributory negligence.

19. The Hon'ble Supreme Court, in
the case of Dinesh Kumar J. @ Dinesh J.
Vs. National Insurance Company Ltd. &
Others (Supra), has held that the insurance
company had not produced any evidence in
regard to the contributory negligence.
20. A Division Bench of this
Court, in the case of Oriental Insurance
Company Ltd. Vs. Abhiraj Chetri & One
Another (Supra), has held that since the
offending vehicle had hit the motor cycle
from the back side, therefore, the principle
of
contributory
negligence
is
not
applicable.

21. The Delhi High Court, in the
case of National Insurance Company
Limited Vs. Smt. Pushpa Rana and
Others (Supra), has held that proceedings
under Motor Vehicles Act are not akin to
proceedings in a civil suit and hence strict
rules of evidence are not required to be
followed in this regard.

22. The next contention of learned
counsel for the insurance company was that
since the son of the deceased was given
appointment on compassionate ground in
his place, therefore, there was no future
loss of income hence the future prospects
could not have been allowed. The deceased
Firoz @ Firoz Alam was a driver in Uttar
Pradesh Rajya Setu Nigam Ltd. He died in
harness in the aforesaid accident on
08.05.2014. He was getting Rs.34,351/- at
the time of accident. The son of the
deceased was appointed in his place on
compassionate ground on a remuneration of
about Rs.12000-13,000/- as per evidence of
PW-1, therefore, firstly it can not be said
that there was no loss of income to the
family;
secondly
the
compassionate
appointment given on account of death
during service can not be equated with the
future prospect because the compassionate
appointment is given on account of death of
the bread earner of the family so that the
family may come out from the distress and
penury and their survival may not be in
difficulty and it may be on account of death
in any manner i.e. natural, illness etc.,
10 All. The New India Insurance Co. Ltd. Vs. Shallo Begum & Ors.
597
whereas the future prospects are allowed on
account of loss of increase in income on
account of accident and thus enhancement
of living.

23. The Hon'ble Supreme Court, in
the case of National Insurance Company
Ltd. Vs. Rekhaben & Others (Supra) has
held
that
financial
benefit
of
the
compassionate employment is not liable to
be deducted at all from the compensation
amount, which is liable to be paid either by
the owner/ the driver of the offending
vehicle or the insurer. The relevant
paragraphs 14 and 15 are extracted here-inbelow:-

"14.
While
awarding
compensation,
amongst
other
things, the Tribunal takes into
account the income of the deceased
and calculates the loss of such
income after making permissible
deductions
to
compensate
the
injured claimant for the loss of
earning capacity in case of an
injury, and to compensate the
claimants dependent on him in case
of death. Thus, the income of the
deceased or the injured, which the
claimants have lost due to the
inability of the deceased or the
injured to earn or to provide for
them is a relevant factor which is
always taken into consideration.
The salary or the income of the
claimant in case of death is
generally not a relevant factor in
determining
compensation
primarily because the law takes no
cognizance
of
the
claimant's
situation. Though in case of an
injury, the income of the claimant
who is injured is relevant. In other
words, compensation is awarded on
the basis of the entire loss of
income of the deceased or in a case
of injury, for the loss of income due
to the injury. What needs to be
considered
is
whether
compassionate appointment offered
to the dependants of the deceased
or the injured, by the employer of
the deceased/injured, who is not the
tortfeasor, can be deducted from
the compensation receivable by him
on account of the accident from the
tortfeasor. Certainly, it cannot be
that the one liable to compensate
the claimants for the loss of income
due to the accident, can have his
liability reduced by the amount
which the claimants earn as a
result
of
compassionate
appointment offered by another viz.
the employer.
15. The submission on
behalf of the appellant in these
cases is that the salary of the
claimants receivable on account of
compassionate appointment must
be deducted from the compensation
awarded to them. Reliance is
placed in this regard on the
judgment of this Court in Bhakra
Beas Management Board v. Kanta
Aggarwal
[Bhakra
Beas
Management
Board
v.
Kanta
Aggarwal, (2008) 11 SCC 366 :
(2009) 1 SCC (Cri) 154] in which
compensation was claimed against
the employer of the deceased who
was also the owner of the offending
vehicle i.e. the tortfeasor. The
tortfeasor offered employment on
compassionate
grounds
to
the
widow of the deceased i.e. the
claimant.
In
the
facts
and
circumstances of the case, this
Court took the view that the salary
598 INDIAN LAW REPORTS ALLAHABAD SERIES
which
flowed
from
the
compassionate appointment offered
by the tortfeasor, was liable to be
deducted from the compensation
which was payable by the same
employer in his capacity as the
owner of the offending vehicle. We
find this decision as being of no
assistance to the appellant in the
cases before us. In the present
cases, the owner of the offending
vehicle is not the employer who
offered
the
compassionate
appointment. As observed earlier, it
is difficult to see how the owner
can contend that the compensation
which he is liable to pay for
causing the death or disability
should be reduced because of
compassionate employment offered
by another. In any case, it is
difficult to determine how much the
person
offered
compassionate
appointment would earn over the
period of employment which is not
certain, and deduct that amount
from the compensation."

24. The Hon'ble Supreme Court, in
the case of Smt. Anjali & Others Vs.
Lokendra Rathod & Others (Supra), has
held that the provisions of the Motor
Vehicles Act,
1988
gives
paramount
importance to the concept of 'just and fair'
compensation.

25. The Hon'ble Supreme Court, in
the case of Syed Basheer Ahmad &
Others
Vs.
Mohammad
Jameel
&
Another (Supra), has held that section 168
of the Act enjoins the Tribunal to make an
award
determining
"the
amount
of
compensation which appears to be just."
However, the objective factors, which may
constitute the basis of compensation
appearing as just, have not been indicated
in the Act. Thus, the expression "which
appears to be just" vests a wide discretion
in
the
Tribunal
in
the
matter
of
determination
of
compensation.
Nevertheless, the wide amplitude of such
power does not empower the Tribunal to
determine the compensation arbitrarily or
to ignore settled principles relating to
determination of compensation. Similarly,
although the Act is a beneficial legislation,
it can neither be allowed to be used as a
source of profit, nor as a windfall to the
persons affected nor should it be punitive to
the person(s) liable to pay compensation. In
nutshell, the amount of compensation
determined to be payable to the claimant(s)
has to be fair and reasonable by accepted
legal
standards.
In
the
matter
of
computation of compensation, there is no
uniform rule or formula for measuring the
value of a human life. In a catena of
decisions it has been observed that in a
fatal accident action, the accepted measure
of damages awarded to the dependents is
the pecuniary loss suffered and likely to be
suffered by them as a result of abrupt
termination of life. The general principle is
that the pecuniary loss can be ascertained
only by balancing on the one hand the loss
to the claimants of the future pecuniary
benefit and on the other any pecuniary
advantage which from whatever source
comes to them by reason of the death, that
is, the balance of loss and gain to a
dependent
by
the
death
must
be
ascertained. In the present case there was
loss as discussed above.

26. The Hon''ble Supreme Court,
in the case of Divisional Controller,
KSRTC Vs. Mahadev Shetty & Another
(Supra), considered the definition of
compensation
and
held
that
the
compensation awarded should not be
10 All. The New India Insurance Co. Ltd. Vs. Shallo Begum & Ors.
599
inadequate
and
should
neither
be
unreasonable, excessive, nor deficient. It
has also been held that it is to be borne in
mind that compensation for loss of limbs or
life can hardly be weighed in golden scales.
The relevant paragraphs 10 to 13 are
extracted here-in-below:-

"10.
The
term
"compensation" as stated in the
Oxford Dictionary, signifies that
which is given in recompense, an
equivalent rendered. "Damages"
on the other hand constitute the
sum of money claimed or adjudged
to be paid in compensation for loss
or injury sustained, the value
estimated in money, of something
lost
or
withheld.
The
term
"compensation"
etymologically
suggests the image of balancing
one thing against another; its
primary
signification
is
equivalence, and the secondary and
more
common
meaning
is
something given or obtained as an
equivalent. Pecuniary damages are
to be valued on the basis of "full
compensation". That concept was
first stated by Lord Blackburn in
Livingstone v. Rawyards Coal Co.
[(1880) 5 AC 25 : 42 LT 334 : 28
WR 357 (HL)]
11. The "rule of law"
requires that the wrongs should not
remain
unredressed.
All
the
individuals or persons committing
wrongs should be liable in an
action for damages for breach of
civil
law
or
for
criminal
punishment.
"Compensation"
means anything given to make
things equivalent, a thing given or
to
make
amends
for
loss,
recompense, remuneration or pay;
it need not, therefore, necessarily
be in terms of money, because law
may specify principles on which
and
the
manner
in
which
compensation is to be determined
and given. Compensation is an act
which a court orders to be done, or
money which a court orders to be
paid, by a person whose acts or
omissions have caused loss or
injury to another in order that
thereby the person damnified may
receive equal value for his loss; or
be made whole in respect of his
injury; something given or obtained
as an equivalent; rendering of
equivalent in value or amount; an
equivalent given for property taken
or for an injury done to another; a
recompense in value; a recompense
given
for
a
thing
received;
recompense
for
whole
injury
suffered;
remuneration
or
satisfaction for injury or damage of
every description. The expression
"compensation" is not ordinarily
used
as
an
equivalent
to
"damages",
although
compensation may often have to be
measured by the same rule as
damages in an action for a breach.
The
term
"compensation"
as
pointed
out
in
the
Oxford
Dictionary signifies that which is
given in recompense, an equivalent
rendered; "damages" on the other
hand constitute the sum of money,
claimed or adjudged to be paid in
compensation for loss or injury
sustained. "Compensation" is a
return for the loss or damage
sustained. Justice requires that it
should be equal in value, although
not alike in kind.
600 INDIAN LAW REPORTS ALLAHABAD SERIES
12. It is true that perfect
compensation is hardly possible
and
money
cannot
renew
a
physique or frame that has been
battered and shattered, as stated by
Lord Morris in West v. Shephard
[1964 AC 326 : (1963) 2 All ER
625 : (1963) 2 WLR 1359 (HL)] .
Justice requires that it should be
equal in value, although not alike
in kind. The object of providing
compensation is to place the
claimant as far as possible in the
same position financially as he was
before
the
accident.
Broadly
speaking, in the case of death the
basis of compensation is loss of
pecuniary
benefits
to
the
dependants of the deceased which
includes pecuniary loss, expenses
etc. and loss to the estate. The
object is to mitigate hardship that
has been caused to the legal
representatives due to the sudden
demise of the deceased in the
accident. Compensation awarded
should not be inadequate and should
neither be unreasonable, excessive,
nor deficient. There can be no exact
uniform rule for measuring the value
of human life and the measure of
damage cannot be arrived at by
precise mathematical calculation;
but amount recoverable depends on
broad facts and circumstances of
each case. It should neither be
punitive against whom claim is
decreed nor should it be a source of
profit for the person in whose favour
it is awarded. Upjohn, L.J. in
Charterhouse Credit v. Tolly [(1963)
2 QB 683 : (1963) 2 All ER 432 :
(1963) 2 WLR 1168 (CA)] remarked,
"the assessment of damages has
never been an exact science; it is
essentially practical" (All ER p. 443
C).
13.
The
damages
for
vehicular accidents are in the nature
of compensation in money for loss of
any kind caused to any person. In
case of personal injury the position is
different from loss of property. In the
latter case there is possibility of
repair or restoration. But in the case
of personal injury, the possibility of
repair or restoration is practically
non-existent. In Parry v. Cleaver
[(1969) 1 All ER 555 : 1970 AC 1 :
(1969) 2 WLR 821 (HL)] Lord
Morris stated as follows : (All ER p.
564 I)
"To compensate in money
for
pain
and
for
physical
consequences is invariably difficult
but ... no other process can be
devised than that of making a
monetary assessment."

27. The Hon'ble Supreme Court, in
the case of State of Haryana & Another Vs.
Jasbir Kaur & Others (Supra), has held that
the statutory provisions clearly indicate that
the compensation must be "just" and it cannot
be a bonanza; not a source of profit; but the
same should not be a pittance.

28. The Hon'ble Supreme Court, in
the case of State of Gujarat Vs. Shantilal
Mangaldas & Others (Supra), has held that
in
ordinary
parlance
the
expression
"compensation" means any thing given to
make things equivalent; a thing given to or to
make
amends
for
loss,
recompense,
remuneration or pay; it need not therefore,
necessarily be in terms of money.

29. The Hon'ble Supreme Court, in
the case of Gobald Motor Service Ltd. &
Another Vs. R.M.K. Veluswami &
10 All. The New India Insurance Co. Ltd. Vs. Shallo Begum & Ors.
601
Others (Supra), has held that the general
principle is that the pecuniary loss can be
ascertained only by balancing on the one
hand the loss to the claimants of the future
pecuniary benefit and on the other any
pecuniary advantage which from whatever
source comes to them by reason of the
death, that is, the balance of loss and gain
to a dependent by the death must be
ascertained.

30. The Hon'ble Supreme Court, in
the case of Reliance General Insurance
Company Ltd. Vs. Shashi Sharma &
Others (Supra), has held that two cardinal
principles run through the provisions of the
Motor Vehicles Act of 1988 in the matter of
determination of compensation. Firstly, the
measure of compensation must be just and
adequate and secondly, no double benefit
should be passed on to the claimants in the
matter of award of compensation. It has
further been held that the claimants are
legitimately entitled to claim for the loss of
"pay
and
wages"
of
the
deceased
Government
employee
against
the
tortfeasor or Insurance Company, as the
case may be, covered by the first part of
Rule 5 under the Act of 1988. It has also
been held that the Claims Tribunal should
remain oblivious to the fact that the claim
towards loss of pay and wages of the
deceased has already been or will be
compensated by the employer in the form
of
ex-gratia
financial
assistance
on
compassionate grounds under Rule 5 (1)
because the Claims Tribunal has to
adjudicate the claim and determine the
amount of compensation which appears to
it to be just.

31. The Hon'ble Supreme Court, in
the case of Sebastiani Lakra and Others
Vs.
National
Insurance
Company
Limited and Another; (2019) 17 SCC
465, considered section 168 of the Motor
Vehicles Act, 1988, and held as under in
paragraphs 4 to 6:

"4. Section 168 of the
Motor Vehicles Act, 1988 (for short
'the Act') mandates that "just
compensation" should be paid to
the claimants. Any method of
calculation of compensation which
does not result in the award of 'just
compensation' would not be in
accordance with the Act. The word
"just" is of (2016) 9 SCC 627
(1999) 1 SCC 90 (2002) 6 SCC 281
(2017) 16 SCC 680 a very wide
amplitude.
The
Courts
must
interpret the word in a manner
which meets the object of the Act,
which is to give adequate and just
compensation to the dependents of
the deceased. One must also
remember that compensation can
be paid only once and not time and
again.
5. The traditional view was
that while assessing compensation,
the Court should assess the loss of
income caused to the claimants by
the death of the deceased and
balance it with the benefits which
may have accrued on account of
the death of the deceased. However,
even when this traditional view was
being followed, it was a well settled
position of law that the tortfeasor
cannot not take benefit of the
munificence or gratuity of others.
6. In Helen C. Rebello case
(supra), the issue was whether the
amounts received by the deceased
by way of provident fund, pension,
life
insurance
policies
and
similarly, in cash, bank balance,
shares, fixed deposits etc., are
602 INDIAN LAW REPORTS ALLAHABAD SERIES
'pecuniary advantages' received by
the heirs on account of death of the
deceased and liable to be deducted
from the compensation. This Court
held that these amounts have no corelation with the compensation
receivable by the dependents under
the
Motor
Vehicle
Act.
The
following observations were made
by the Court:
"35.
Broadly,
we
may
examine the receipt of the provident
fund which is a deferred payment
out of the contribution made by an
employee during the tenure of his
service. Such employee or his heirs
are entitled to receive this amount
irrespective of the accidental death.
This amount is secured, is certain
to be received, while the amount
under the Motor Vehicles Act is
uncertain and is receivable only on
the happening of the event, viz.,
accident, which may not take place
at all. Similarly, family pension is
also earned by an employee for the
benefit of his family in the form of
his contribution in the service in
terms of the service conditions
receivable by the heirs after his
death. The heirs receive family
pension even otherwise than the
accidental death. No corelation
between the two. Similarly, life
insurance policy is received either
by the insured or the heirs of the
insured on account of the contract
with the insurer, for which the
insured contributes in the form of
premium. It is receivable even by
the insured if he lives till maturity
after paying all the premiums. In
the case of death, the insurer
indemnifies to pay the sum to the
heirs, again in terms of the contract
for the premium paid. Again, this
amount
is
receivable
by
the
claimant not on account of any
accidental death but otherwise on
the insured's death. Death is only a
step or contingency in terms of the
contract, to receive the amount.
Similarly any cash, bank balance,
shares, fixed deposits, etc. though
are all a pecuniary advantage
receivable by the heirs on account
of one's death but all these have no
corelation
with
the
amount
receivable
under
a
statute
occasioned only on account of
accidental death. How could such
an
amount
come
within
the
periphery of the Motor Vehicles Act
to
be
termed
as
"pecuniary
advantage" liable for deduction.
When we seek the principle of loss
and gain, it has to be on a similar
and same plane having nexus, inter
se, between them and not to which
there is no semblance of any
corelation. The insured (deceased)
contributes his own money for
which he receives the amount
which has no corelation to the
compensation computed as against
the tortfeasor for his negligence on
account
of
the
accident.
As
aforesaid, the amount receivable as
compensation under the Act is on
account of the injury or death
without making any contribution
towards it, then how can the fruits
of an amount received through
contributions of the insured be
deducted
out
of
the
amount
receivable
under
the
Motor
Vehicles Act. The amount under this
Act
he
receives
without
any
contribution. As we have said, the
compensation payable under the
10 All. The New India Insurance Co. Ltd. Vs. Shallo Begum & Ors.
603
Motor Vehicles Act is statutory
while the amount receivable under
the
life
insurance
policy
is
contractual."

32. The Hon'ble Supreme Court, in
the case of National Insurance Company
Limited Vs. Mannat Johal and Others
(Supra),
considering
the
aforesaid
judgment and issue of just compensation
and as to when the deduction of ex-gratia
payment would be warranted, has held that
in a case relating to the death of the
vehicular accident victim, any process of
awarding "just" compensation involves
assessment of such amount of pecuniary
loss, which could be reasonably taken as
the loss of dependency suffered by the
claimants due to the demise of the victim.
In regard to the deduction of ex-gratia
payment the Hon'ble Supreme Court has
taken a view that if any ex gratia amount
received by the claimants has been under
any Rules of Service and would be of
continuous assistance, it may have been
deducted.

33. One of the contention of
learned
counsel
for
the
insurance
companny was that the claimants are not
entitled for the future prospects on the
ground of his 58 years of age. The
contention of learned counsel for the
appellant is misconceived and not tenable
because the death of bread earner of family
is always loss to the family, who would
have contributed to the family in future and
his earnings may have increased in any
manner.

34 The Hon'ble Supreme Court, in
the case of National Insurance company
Ltd. Vs. Pranay Shethi & Others
(Supra), has held that Judicial notice can
be taken of the fact that salary does not
remain the same and when a person is in a
permanent
job,
there
is
always
an
enhancement due to one reason or the
other.