# The Oriental Insurance Co. Ltd v. Lokesh & Anr

- **Citation:** (2023) 2 ILRA 404
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-12
- **Case number:** First Appeal from Order No. 357 of 2001
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-co-ltd-v-lokesh-anr-49673
- **Pages:** 10

## Headnote

A. Criminal Law - Motor Vehicles Act,
1988-Section
168-Compensation-Injury
case-Claimant had sustained amputation
of his left leg and sustained a permanent
disability of 55%-Held Tribunal is right in
holding that 55% permanent medical
disability
would
translate
into
an
equivalent functional disability-There is no
infirmity in calculating annual loss of
income and determining it at a figure of
Rs. 21,600-Claimant would fall in age
group of 21 to 25 years, for which
appropriate multiplier prescribed is '18';
not '17'-Compensation towards expenses
for future and current replacement of
artificial limb has to be enhanced from Rs.
35,000 to Rs. 2 lacs-Sum of Rs. 50,000
awarded for mental and physical pain
sustained on account of accident and loss
of his job by claimant, estimated by
Tribunal, is also unexceptionable-Claimant
who was a young man of 22 years at a
time of accident, he is certainly entitled to
future prospects worked out on lost
income-Age of claimant , which is below
40 years, for future prospects there has to
be an addition to lost income of claimant
to extent of 50%.(Para 1 to 31)

The appeal is allowed. (E-6)
2 All. The Oriental Insurance Co. Ltd. Vs. Lokesh & Anr.
405
List of Cases cited:

## Text

404 INDIAN LAW REPORTS ALLAHABAD SERIES
provides that failure to comply with the
provisions of section 81 of RP Act would
result in rejection of election petition at the
initial stage and even learned counsel for
the petitioner has not prayed to correct
those defects.

25. Therefore, in view of the dictum
of Apex Court in re: Uday Shanker
Triyar (supra), the aforesaid defect may
be the reason to dismiss the election
petition at the initial stage.

26. In view of the above, since the
present petitioner has refused to deposit
the amount required for publication of
election petition and he may not be
exempted
from
such
publication,
therefore, application for exemption from
publication is rejected. Consequently,
there is no publication made in the
newspaper by the petitioner, which is a
mandatory requirement in terms of rule 6
(c) of the Rules, 1952, therefore, the
present election petition itself is not
maintainable.

27. Accordingly, the instant election
petition is dismissed. All the application
are disposed of in terms of the aforesaid
order.

28. No order as to costs.

[Before parting with, I appreciate
the efforts and research done by Ms.
Trisha Singh, Law Clerk Trainee
attached with me and Sri Ayush Nigam,
Law intern for finding out the relevant
case laws applicable in the present
case]
----------
(2023) 2 ILRA 404
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2023
BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal from Order No. 357 of 2001
with
Cross Objection No. 70 of 2022

The Oriental Insurance Co. Ltd.
 ...Appellant
Versus
Lokesh & Anr. ...Respondents

Counsel for the Appellant:
Sri Manish Goyal, Sri Amaresh Sinha, Sri
Anubhav Sinha

Counsel for the Respondents:
Sri S.S. Tewari, Sri A.K. Singh, Sri Komal
Mehrotra, Sri S.S. Shukla, Sri V.K. Jaiswal, Sri
Yogendra Pal Singh

A. Criminal Law - Motor Vehicles Act,
1988-Section
168-Compensation-Injury
case-Claimant had sustained amputation
of his left leg and sustained a permanent
disability of 55%-Held Tribunal is right in
holding that 55% permanent medical
disability
would
translate
into
an
equivalent functional disability-There is no
infirmity in calculating annual loss of
income and determining it at a figure of
Rs. 21,600-Claimant would fall in age
group of 21 to 25 years, for which
appropriate multiplier prescribed is '18';
not '17'-Compensation towards expenses
for future and current replacement of
artificial limb has to be enhanced from Rs.
35,000 to Rs. 2 lacs-Sum of Rs. 50,000
awarded for mental and physical pain
sustained on account of accident and loss
of his job by claimant, estimated by
Tribunal, is also unexceptionable-Claimant
who was a young man of 22 years at a
time of accident, he is certainly entitled to
future prospects worked out on lost
income-Age of claimant , which is below
40 years, for future prospects there has to
be an addition to lost income of claimant
to extent of 50%.(Para 1 to 31)

The appeal is allowed. (E-6)
2 All. The Oriental Insurance Co. Ltd. Vs. Lokesh & Anr.
405
List of Cases cited:
1. Sarla Verma (Smt.) & ors. Vs DTC & anr.
(2009) 6 SCC 121

2. Shri Ram Kushwaha Vs U.P. St. Sugar Corp.
Ltd. thru Gen. Mgr. (2015) 2 ADJ 578

3. Raj Kumar Vs Ajay Kumar & anr.. (2011) 1
SCC 343

4. United India Ins. Co. Ltd. Vs Sanjay Dixit
(2022) 2 AWC 1596

5. Jagdish Vs Mohan & ors. (2018) 4 SCC 571

6. New India Assr. Co. Ltd Vs Urmila Shukla &
ors. (2021) SCC Online SC 822

7. National Ins. Co. Ltd. Vs Pranay Sethi & ors.
(2017) 16 SCC 680

8. Abhuydya Sanstha Vs U.O.I. (2011) 6 SCC

9. Hari Narain Vs Badri Das (1963) AIR SC 1558

10. G. Narayanaswamy Reddy Vs Govt of
Karnataka (1991) 3 SCC 261

11. Dalip Singh Vs St. of U.P. (2010) 2 SCC 114

12. Moti Lal Songara Vs Prem Prakesh @ Pappu
& anr. (2013) 9 SCC 199

13. Amar Singh Vs U.O.I. & ors. (2011) 7 SCC
69

14. Kishore Samrite Vs St. of U.P. & ors.. (2013)
2 SCC 398

15. ABCD Vs U.O.I. & ors. (2020) 2 SCC 52

16. Pushpadevi M. Jatia Vs M.L. Wadhawan
etc.(1987) 3 SCC 367

17. Shashi Vs Anil Kumar Verma (1995) 1 SCC
421

18. K.D. Sharma Vs SAIL & ors. (2008) 12 SCC
481

19. Dhananjay Sharma Vs St. of Har. & ors.
(1995) 3 SCC 757
(Delivered by Hon'ble J.J. Munir, J.)

This judgement will dispose of First
Appeal From Order No. 357 of 2001 and
Cross Objection No. 70 of 2022.

2. The aforesaid appeal and the cross
objection arise out of the impugned
judgment and award dated 20.02.2001,
passed by the Motor Accident Claims
Tribunal/ XIII Additional District Judge,
Ghaziabad rendered in MACP No. 699 of
1998.

3. The facts giving rise to this appeal
are these:

On 30.09.1998 at about quarter past 3
o'clock in the afternoon, the claimantrespondent (for short, ''the claimant') was
riding his scooter bearing Registration No.
UP14 J-1607 and proceeding from Village
Chauda to Sector 25, NOIDA, then falling
in District Ghaziabad. As the claimant
reached near Sectors 21, 25, Truck bearing
Registration No. DIG/2615, driven by its
driver, rashly, negligently and at a high
speed, approached from the side of Sector
31 and hit the claimant's scooter. In
consequence of the accident, the claimant
sustained grievous injuries rendering him
permanently disabled. At the time the
accident happened, the claimant was aged
22 years. He was on the brink of death. The
claimant says that he was a trained
technician and employed with Supertonics
India Ltd., on the post of a Foreman. He
was drawing a handsome salary. It is the
claimant's case that on account of injuries
sustained and the resultant permanent
disability, he suffered mental agony and
physical pain. He lost his job. Accordingly,
in the claim petition before the Tribunal, he
asked for a compensation in the sum of
Rs.50 lacs.
406 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Gora Lal, who was impleaded as
opposite party No.1 in the claim petition is
the owner of the offending vehicle. He put
in a written statement before the Tribunal
denying the claim. The stand taken was that
on the fateful day, his driver was driving
the offending vehicle with caution and at a
slow speed. All of a sudden, the ill-fated
scooter ridden by the claimant appeared on
the scene. It was being driven rashly,
negligently and at a high speed. The
claimant applied brakes to save himself
from being hit by a car that was moving
ahead of the Truck. This resulted in the
accident. It is also his plea that at the time
of the accident, the claimant did not hold a
valid driving license.

5. A separate written statement was
filed on behalf of the appellant-Oriental
Insurance Company India Ltd., who were
opposite party No.2 to the claim petition.
The appellant shall hereinafter referred to
as, ''the Insurers'.

6. It was pleaded on behalf of the
Insurers that the compensation claimed is
exaggerated. The accident occurred due to
negligence of the claimant. The claim
petition is bad for non-joinder. It was also
the Insurers' case that at the time of the
accident, the claimant did not hold a valid
and effective driving license. There is also
a plea that the claimant did not have a good
income.

7. On the pleadings of parties, the
following issues were framed, (translated
into English from Hindi):

(1) Whether on 30.09.1998, at about
03 O' Clock near electric station crossing
of Sector 21, 25, Noida, Police Station
Dadri, District Ghaziabad, Truck No.
DIG/2615, driven by its driver, rashly and
at a high speed, hit the scooter bearing
Registration
No.
UP14
J
1607,
in
consequence
whereof
the
claimant
sustained grievous injuries in the accident?

(2) Whether the accident occurred due
to the claimant's negligence?

(3) Whether the scooter rider held a
valid driving license at the time of the
accident? If yes, its effect?

(4) Whether at the time of the
accident, the truck driver held a valid
driving license?

(5) To what compensation is the
claimant entitled and from which opposite
party?"

8. In support of his case, the claimant
filed documents through a list, paper
No.19-Ga, carrying medical bills and
examined PW-1, PW-2 and PW-3 as his
witnesses. On behalf of the Insurers, DW-1
has been examined.

9. Issues Nos. 1 and 2, that is to say,
the issues about negligence of the driver of
the offending vehicle and that relating to
contributory negligence were both decided
together by the Tribunal. The Tribunal held
on both issues in favour of the claimant
saying that the accident occurred solely on
account of the negligence of the offending
vehicle's driver wherein there was no
contribution by the claimant.

10. Learned Counsel for the Insurers
has assailed the findings of the Tribunal,
saying that the Tribunal has ill appreciated
the evidence regarding negligence and
contributory negligence, while deciding
Issues Nos. 1 and 2. It is submitted that the
Tribunal has not considered the testimony
of PW-1 and the site plan which vitiates its
findings on issue Nos. 1 and 2. There is
also criticism of the remarks by the
Tribunal where it is said that there is
2 All. The Oriental Insurance Co. Ltd. Vs. Lokesh & Anr.
407
contradiction between the testimony of
PW-1 and the site plan. A further criticism
by the learned Counsel for the Insurers
about the findings on these two related
issues is that there is nothing in the
testimony of the driver to show that there
was no green light on the crossing.
Likewise, though there is no mention about
the absence of a green light on the crossing
in
the
claimant's
testimony,
the
presumption drawn by the Tribunal that
there was no green light on the crossing is
said to be based no evidence.

11. Learned Counsel for the claimant,
on the other hand, has supported the
Tribunal's findings and submitted that the
Tribunal has correctly appreciated the
evidence of the claimant, PW-1, going into
details of the incident and reconstructing
the scene of accident to find in the
claimant's favour. It emphasized that PW-1
was cross-examined and his testimony
having
passed
the
grill
of
crossexamination, inference drawn from it by
the Tribunal is unimpeachable. It is also
emphasized that the testimony of PW-1 has
also been thoroughly scrutinized by the
Tribunal. DW-1 is the truck driver, who has
spoken about a Maruti Car moving ahead
of his truck, which crossed the green light
on the stadium crossing. He has blamed the
rider of the scooter for negligent driving,
but the Tribunal has minutely examined his
testimony comparing it to the site plan and
holding it unreliable.

12. Upon hearing learned Counsel for
the parties on this issue and perusing the
records, this Court finds that the rider of the
scooter and the driver of the offending
vehicle are expected to speak in the witness
box words that may not be absolutely
truthful; but, these witnesses have been duly
cross-examined. The Tribunal has rightly
remarked that the testimony of the driver
saying that the scooter applied brakes,
because he wanted to avoid hitting the car,
does not appear to be correct because the car
had already crossed the green light on the
crossing. There was, thus, no occasion for the
scooter driver proceeding at right angles to
avoid hitting the car. The Tribunal has also
thoroughly examined the evidence of the
claimant to hold that his testimony shows that
he was proceeding from Village Chauda in
the north-south direction, whereas the truck
was approaching the crossing from the east.
The Tribunal has indeed inferred rightly from
the testimony that the claimant had seen the
truck and manoeuvred his two wheeler to the
left to avoid a collision, but the truck driver
hit him on the left side of the scooter. The
Tribunal has rightly remarked that the driver
of the truck hitting the claimant on the left
side while proceeding from the east towards
the crossing shows that it was the truck driver
who was negligent. A perusal of the site plan
also shows that though the scooter had
entered the crossing, but it had turned to its
right and was hit on the left hand side by the
truck proceeding from the east of the
crossing.

13. Looking into the testimony of PW-1
and DW-1, both of which have been
subjected to cross-examination and the site
plan, this Court is of opinion that the findings
of the Tribunal about the truck driver's
exclusive negligence is well founded. There
is no contributory negligence on the part of
the claimant. Even otherwise, the driver of a
heavy vehicle ought to exercise more caution
when entering a crossing. The findings of the
Tribunal, therefore, on Issues Nos.1 and 2
deserves to be affirmed.

14. Issues Nos. 3 and 4, which are
issues raised by the opposite parties, have
been decided in favour of the claimants
408 INDIAN LAW REPORTS ALLAHABAD SERIES
with issue No.3 not being pressed at all,
and on issue No.4 there being a finding that
the driving license of the driver of the
offending vehicle has been produced,
which has been acknowledged by the
Insurers. Thus, there is no cavil about the
said findings in the appeal.

15. On Issue No.5, the Tribunal has
awarded a substantive compensation of
Rs.3,67,200/-. To this, a sum of Rs.
1,50,000/- has been added for the medical
expenses incurred, that are supported by
Bills and vouchers. In addition, a sum of
Rs.35,000/- has been awarded for the
purposes of securing the artificial limb. It
has been noted that a cost of Rs.11,000/- is
required for replacement of the artificial
limb every two years. Rs.50,000/- have
been awarded towards mental and physical
pain, physical disability, loss of job etc. A
sum of Rs.50,000/- has been awarded
towards future medical expenses, loss of
amenities and the mental pain, yet to come.

16. In this manner, the Tribunal
awarded a total sum of Rs. 6,52,200/- The
claimant in his cross-examination says that
the compensation awarded is far below his
entitlement. One of the objections is that
interest has been awarded only upon a sum
of Rs.1,50,000/- instead of the entire
compensation payable, which cannot be
countenanced. The next objection by the
claimant is that the sum of Rs.50,000/-
under the head of future medical expenses
is too low, considering the injuries and the
future medical treatment required. The
claimant ought to be awarded a sum of Rs.
2 lacs, looking to the injuries that he
sustained. It is also argued that the sum of
Rs.35,000/- granted towards compensation
for the future regular change of the
artificial limb is also too low, which would
be a regular feature during the claimant's
life. It is next submitted that the claimant
has been declared 55% handicapped in the
accident, on account of which he is unable
to move anywhere and rendered incapable
of doing any work to earn his livelihood. It
is the claimant's submission that looking to
the nature of his job, which was that of a
technician a 55% physical handicap or
medical disability, would translate into a
100% functional disability.

17. The Tribunal has accepted
evidence about which there is not much
cavil by the Insurers as well, that the
claimant
earned
a
monthly
sum
of
Rs.3250/- by way of salary. He was a
young man of 22 years. The claimant was a
technician undertaking the work of electric
motor winding. About this, the Tribunal has
remarked that this is a kind of job that he
can do even while being stationary. He
need not move about to carry on his job.
The
Tribunal
has
then
opined
that
notwithstanding the fact that the job that
the claimant does can still be undertaken by
him while being stationary, the fact that he
has suffered a permanent disability would
have a telling effect on his behaviour and
mental outlook. It cannot be said whether
he would be able to carry on with his work
and earn his livelihood. The Tribunal has
also taken note of the fact that he has been
removed from his job on account of the
permanent disability that he has sustained
on account of the accident.

18. In the circumstances, the Tribunal
has translated the 55% permanent disability
into a numerical equivalent of functional
disability. The claimant's salary was a sum
of Rs.3250/- at the time when he suffered
the accident. His loss of monthly income
caused by the functional disability of 55%,
has been determined at a sum of Rs. 1800/-
per month. The annual loss of income has
2 All. The Oriental Insurance Co. Ltd. Vs. Lokesh & Anr.
409
been worked out to a sum of Rs. 21,600/-.
Since the claimant was a young man of 22
years, the Tribunal has applied the
multiplier of ''17' to determine the total loss
sustained by him about his future income at
a figure of Rs.3,67,200/-. The other sums of
money that have been added to it are those
on account of medical expenses, future
medical expenses, mental pain and agony
faced and that to be suffered in future,
besides
compensation
and
permanent
requirement of a biennial change of his
artificial
limb,
as
already
noticed,
hereinabove.

19. Learned Counsel for the Insurers
has submitted that the compensation
awarded by the Tribunal ought not to be
enhanced contrary to what the learned
Counsel for the claimant has urged in
support of his case for enhancement.

20. Upon hearing learned counsel for
the parties on the issue of enhancement,
this Court finds that there is on record a
medical certificate dated 15.04.1999, issued
by the office of the Chief Medical Officer,
Ghaziabad, signed by a team of three
doctors which includes the Chief Medical
Officer, besides an Orthopaedic Surgeon
and an Eye Specialist. The said certificate
indicates that the claimant had sustained
amputation of his left leg and sustained a
permanent disability of 55%. There is an
attested photograph of the claimant, pasted
on the certificate. It shows that the
claimant's left leg has been amputated
below the knee and he is almost without a
functional left lower limb. No doubt, the
claimant has sustained a serious and
permanent disability at a very young age.
The claimant is a technician, which
involves physical exertion to undertake the
job. Notwithstanding the fact that the work
of electric motor winding can be done in a
stationary position, this Court is of opinion
that the Tribunal is right in holding that the
55% permanent medical disability would
translate into an equivalent functional
disability. The Tribunal has, therefore,
rightly estimated the minimum loss of the
claimant's income at the time, in the sum of
Rs.1800/- per month. In determining the
functional disability various factors have to
be taken into consideration, which include
the nature of the disability sustained in the
accident, such as the loss of a limb etc. and
the nature of the claimant's work before the
accident, while inferring the functional
disability from what is medically certified
as the permanent disability.

21. In this regard, reference may be
made to the decision of the Supreme Court
in Raj Kumar v. Ajay Kumar and
Another 2011(1) SCC 343, where it has
been held:

12. Therefore, the Tribunal has to first
decide whether there is any permanent
disability and, if so, the extent of such
permanent disability. This means that the
Tribunal should consider and decide with
reference to the evidence:

(i)
whether
the
disablement
is
permanent or temporary;

(ii) if the disablement is permanent,
whether it is permanent total disablement
or permanent partial disablement;

(iii) if the disablement percentage is
expressed with reference to any specific
limb, then the effect of such disablement of
the limb on the functioning of the entire
body, that is, the permanent disability
suffered by the person.

If the Tribunal concludes that there is
no permanent disability then there is no
question
of
proceeding
further
and
determining the loss of future earning
410 INDIAN LAW REPORTS ALLAHABAD SERIES
capacity. But if the Tribunal concludes that
there is permanent disability then it will
proceed to ascertain its extent. After the
Tribunal ascertains the actual extent of
permanent disability of the claimant based
on the medical evidence, it has to
determine
whether
such
permanent
disability has affected or will affect his
earning capacity.

13. Ascertainment of the effect of the
permanent disability on the actual earning
capacity involves three steps. The Tribunal
has to first ascertain what activities the
claimant could carry on in spite of the
permanent disability and what he could not
do as a result of the permanent disability
(this
is
also
relevant
for
awarding
compensation under the head of loss of
amenities of life). The second step is to
ascertain his avocation, profession and
nature of work before the accident, as also
his age. The third step is to find out
whether (i) the claimant is totally disabled
from earning any kind of livelihood, or (ii)
whether in spite of the permanent disability,
the claimant could still effectively carry on
the activities and functions, which he was
earlier carrying on, or (iii) whether he was
prevented or restricted from discharging his
previous activities and functions, but could
carry on some other or lesser scale of
activities and functions so that he continues
to earn or can continue to earn his
livelihood.

14. For example, if the left hand of a
claimant is amputated, the permanent
physical or functional disablement may be
assessed around 60%. If the claimant was a
driver or a carpenter, the actual loss of
earning capacity may virtually be hundred
per cent, if he is neither able to drive or do
carpentry. On the other hand, if the
claimant was a clerk in government service,
the loss of his left hand may not result in
loss of employment and he may still be
continued as a clerk as he could perform
his clerical functions; and in that event the
loss of earning capacity will not be 100%
as in the case of a driver or carpenter, nor
60% which is the actual physical disability,
but far less. In fact, there may not be any
need to award any compensation under the
head of "loss of future earnings", if the
claimant continues in government service,
though he may be awarded compensation
under the head of loss of amenities as a
consequence of losing his hand. Sometimes
the injured claimant may be continued in
service, but may not be found suitable for
discharging the duties attached to the post
or job which he was earlier holding, on
account of his disability, and may therefore
be shifted to some other suitable but lesser
post with lesser emoluments, in which case
there should be a limited award under the
head of loss of future earning capacity,
taking note of the reduced earning
capacity."

22. In the opinion of this Court, there
is no infirmity in calculating the annual loss
of income and determining it at a figure of
Rs.21,600/-.

23. However, so far as the multiplier
of ''17' is concerned, we are of the opinion
that the Tribunal has erred there. Going by
the table to adopt the proper multiplier set
out in Paragraph No. 40 of the judgment in
Sarla Devi (Smt.) and Others v. Delhi
Transport Corporation and Another,
(2009) 6 SCC 121, the claimant would fall
in the age group of 21 to 25 years, for
which the appropriate multiplier prescribed
is ''18'; not ''17'. The substantive loss of
future income sustained by the claimant
was, therefore, Rs.21,600/-.

24. So far as the medical expenses are
concerned, that have already been incurred,
2 All. The Oriental Insurance Co. Ltd. Vs. Lokesh & Anr.
411
there is on record dependable documentary
evidence about it. The opinion of the
Tribunal in determining it at a figure of
Rs.1,50,000/- is unassailable.

25. It has not been doubted or
disputed before this Court that the claimant
would indeed require replacement of his
artificial limb every two years. The cost of
the replacement at the time when the
Tribunal heard the matter was Rs.11,000/-.
That was a long time ago and the rising
price index has to be born in mind while
estimating the future expense on the
replacement of this facility. In the Court's
opinion,
the
compensation
towards
expenses for future and current replacement
of the artificial limb has to be enhanced
from Rs.35,000/- to Rs.2 lacs. The sum of
Rs. 50,000/- awarded for the mental and
physical pain sustained on account of the
accident and the loss of his job by the
claimant, estimated by the Tribunal, is also
unexceptionable.
However,
the
compensation awarded for the loss of
future amenities and mental pain yet to
come, would not be admissible in view of
the fact that the claimant now seeks some
addition to the substantive loss of income
under the head of future prospects.

26. In Raj Kumar (supra), it has
been held:

"15. It may be noted that when
compensation is awarded by treating the
loss of future earning capacity as 100% (or
even anything more than 50%), the need to
award compensation separately under the
head of loss of amenities or loss of
expectation of life may disappear and as a
result, only a token or nominal amount may
have to be awarded under the head of loss
of amenities or loss of expectation of life,
as otherwise there may be a duplication in
the award of compensation. Be that as it
may."

27. This Court is, therefore, of
opinion that for the loss of amenities or loss
of expectation of life or pain in the future, a
token sum of Rs.2,000/- ought to be
awarded instead of Rs.50,000/-.

28. Now, considering the award of
future prospects, the claimant who was a
young man of 22 years at the time of the
accident, he is certainly entitled to future
prospects worked out on the lost income.
The issue about loss of future prospects in
the case of an employee suffering a
permanent disability on account of an
accident, fell for consideration of the
Supreme Court in Jagdish v. Mohan and
Others (2018) 4 SCC 571. In that case, the
claimant was a carpenter, aged 24 years
when the accident happened. In the
background of those facts, the Supreme
Court relying on the decision of the
Constitution Bench in National Insurance
Co. Ltd. Vs. Pranay Sethi, (2017) 16 SCC
680, observed thus:

"13.
In
the
judgment
of
the
Constitution
Bench
in
Pranay
Sethi
(supra), this Court has held that the benefit
of future prospects should not be confined
only to those who have a permanent job
and
would
extend
to
self-employed
individuals. In the case of a self-employed
person, an addition of 40 per cent of the
established income should be made where
the age of the victim at the time of the
accident was below 40 years. Hence, in the
present case, the appellant would be
entitled to an enhancement of Rs. 2400/-
towards loss of future prospects.

14. In making the computation in the
present case, the court must be mindful of
the fact that the appellant has suffered a
412 INDIAN LAW REPORTS ALLAHABAD SERIES
serious disability in which he has suffered a
loss of the use of both his hands. For a
person engaged in manual activities, it
requires no stretch of imagination to
understand that a loss of hands is a
complete Civil Appeal No. 7750 of 2012,
decided on 1 November 2012 deprivation
of the ability to earn. Nothing - at least in
the facts of this case - can restore lost
hands. But the measure of compensation
must reflect a genuine attempt of the law to
restore the dignity of the being. Our
yardsticks of compensation should not be
so abysmal as to lead one to question
whether our law values human life. If it
does, as it must, it must provide a realistic
recompense for the pain of loss and the
trauma
of
suffering.
Awards
of
compensation are not law's doles. In a
discourse
of
rights,
they
constitute
entitlements under law. Our conversations
about law must shift from a paternalistic
subordination of the individual to an
assertion of enforceable rights as intrinsic
to human dignity."

29. Though, the Supreme Court in
Jagdish (supra) approved the addition of
40% of the established income towards
future prospects in case of a self employed
man, in the State of Uttar Pradesh future
prospects would be governed by Uttar
Pradesh Motor Vehicles Rules, 1998 (for
short ''the 1998 Rules').

30. In New India Assurance Co. Ltd
v. Urmila Shukla and others, 2021 SCC
OnLine SC 822. In Urmila Shukla
(supra), it was held:

"9. It is to be noted that the validity of
the Rules was not, in any way, questioned in
the instant matter and thus the only question
that we are called upon to consider is
whether in its application, sub-Rule 3(iii) of
Rule 220A of the Rules must be given
restricted scope or it must be allowed to
operate fully.

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 inPranay
Sethicannot 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 prescription
of 15% in cases where the deceased was in
the age bracket of 50-60 years as stated
inPranay Sethicannot 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.

12. We, therefore, reject the submission
advanced on behalf of the appellant and
affirm the view taken by the Tribunal as well
as the High Court and dismiss this appeal
without any order as to costs."

31. Going by Rule 220-A(3) of the
1998 Rules and the age of the claimant,
which is below forty years, for the future
prospects there has to be an addition to the
lost income of the claimant to the extent of
50%.

32. The award made by the Tribunal
deserves to be revised and determined as
follows:-

(i)Loss of Monthly Income (to the
claimant) = 1800
2 All. The New India Assurance Co. Ltd. Vs. Smt. Sunita Yadav & Ors.
413

(ii) Lost Monthly Income + Future
Prospects (Lost Monthly Income x 50%)

=1800 + 900 = 2700

(iii) Lost Annual Income (to the
claimant) = 2700 x 12 = 32,400

(iv)Total Income Lost = Lost Annual
Income x Applied Multiplier= 32400x18 =

5,83,000

(v) Medical Expenses = 1,50,000

(vi) Compensation towards expenses for
future and current replacement of the

artificial limb = 2,00,000

(vii)Sum awarded towards mental and
physical pain = 50,000

(viii) Loss of amenities or loss
expectations of life or pain in the future =
2,000

The
total
compensation
would
therefore, work out to a figure = 9,85,000

33. The impugned award is modified
and it is ordered that the Insurance Company
shall pay in compensation to the claimants a
sum of Rs. 9,85,000/-. The aforesaid sum of
money shall carry simple interest at the rate
of 7% per annum from the date of institution
of claim petition, until realization.

34. The sum of money already
deposited with the Tribunal pursuant to the
impugned award, or the interim order passed
by this Court, shall be adjusted against the
award. The other directions of the Tribunal
shall remain intact.

35. In the result, FAFO No. 357 of 2001
is dismissed and Cross Objection No. 70 of
2022 stands partly allowed. Costs easy.
----------
(2023) 2 ILRA 413
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2022
BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal from Order No. 1327 of 2015
with
First Appeal from Order No. 1925 of 2015
with
First Appeal from Order No. 1824 of 2016

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Smt. Sunita Yadav & Ors. ...Respondents

Counsel for the Appellant:
Sri Kartikey Saran, Sri Ujwal

Counsel for the Respondents:
Sri Amit Kumar Sinha, Deepali Srivastava Sinha,
Sri Vishnu Prakash Srivastava

A. Criminal Law - Motor Vehicles Act, 1988Section 166-U.P. Motor Vehicles Rules,
1998-Rule 220 A(3)(i)-Determination of
compensation-Fatal accident case-Deceased
was aged about 28 years-He was proprietor
of Tent House-Rs. 8,73,500/- awarded by
Tribunal-enhancement
sought-monthly
income of deceased at Rs. 8000/- i.e.
96,000 p.a.-Future prospects taken at 50%-
Deducted
one-fourth
towards
personal
expenses of deceased-Multiplier of 17
applied-Total loss of dependency assessed
at Rs. 18,36,000-And also added Rs. 70,000
for
various
damages-Entitlement
to
compensation of Rs. 19,06,000 madeAlongwith interest @ 7% p.a. (Para 1 to 39)

The appeal is partly allowed. (E-6)

List of Cases cited:
1. NIC Vs Pranay Sethi & ors. (2017) 16 SCC
680

2. Sarla Verma (Smt.) & ors. Vs DTC & anr.
(2009) 6 SCC 121

3. New India Assr. Co. Ltd Vs Urmila Shukla &
ors. (2021) SCC Online SC 822

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