# Union of India Insurance Company Ltd v. Surya Narayan Shukla & Ors

- **Citation:** (2019) 2 ILRA 1025
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-17
- **Case number:** First Appeal From Order No. 622 of 2005
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-insurance-company-ltd-v-surya-narayan-shukla-ors-44296
- **Pages:** 5

## Headnote

A. Motor Vehicles Act, 1988 - Deduction -
Deceased
being
bachelor
-
deduction
towards personal and living expenses,
ordinarily in the case of a bachelor is 50%.
Held: - Deceased being a bachelor and the
claimants being parents, the deduction of 50%
should have been made under the head of
personal and living expenses. (Para 13)
B. Motor Vehicles Act, 1988 - Multiplier -
Multiplier should be based on the age of
the deceased and not on the basis of the
age of the dependent - Multiplier to be
used should be as mentioned in column
(4) of the table of the Sarla Verma
judgment which starts with an operative
multiplier of 18.
Held: - As the age of the deceased at the
time of the death was 20 years, the multiplier
of 18 ought to have been applied. (Para 15)
Appeal Partly allowed (E-5)
List of cases cited: -
1.Sarla Verma Vs DTC (2009) 6 SCC 121
2.Reshma Kumari Vs Madan Mohan (2013) 9
SCC 65
3.Amrit Bhanu Shali Vs National Insurance Co.
Ltd. (2012) 11 SCC 738
4.Ranjana Prakash Vs Divl. Manager (2011) 14
SCC 639

## Text

2 All. Union of India Insurance Company Ltd. Vs Surya Narayan Shukla & Ors.
1025
amount be recalculated and deposited
with interest at the rate of 7.5% from the
date of filing of the claim petition till the
amount is deposited. The amount be
deposited within a period of 12 weeks
from today. The amount already deposited
be deducted from the amount to be
deposited.

13. The record and proceedings be
send back to the Tribunal forthwith
----------

(2019)10ILR A 1025

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2016

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

First Appeal From Order No. 622 of 2005

Union of India Insurance Company Ltd.
 ...Appellant
Versus
Surya Narayan Shukla & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Tarun Kumar Misra, Sri Pankaj Pandey,
Sri R.B. Pandey.

Counsel for the Respondents:
Sri Pankaj Verma, Sri Pankaj Pandey

A. Motor Vehicles Act, 1988 - Deduction -
Deceased
being
bachelor
-
deduction
towards personal and living expenses,
ordinarily in the case of a bachelor is 50%.
Held: - Deceased being a bachelor and the
claimants being parents, the deduction of 50%
should have been made under the head of
personal and living expenses. (Para 13)
B. Motor Vehicles Act, 1988 - Multiplier -
Multiplier should be based on the age of
the deceased and not on the basis of the
age of the dependent - Multiplier to be
used should be as mentioned in column
(4) of the table of the Sarla Verma
judgment which starts with an operative
multiplier of 18.
Held: - As the age of the deceased at the
time of the death was 20 years, the multiplier
of 18 ought to have been applied. (Para 15)
Appeal Partly allowed (E-5)
List of cases cited: -
1.Sarla Verma Vs DTC (2009) 6 SCC 121
2.Reshma Kumari Vs Madan Mohan (2013) 9
SCC 65
3.Amrit Bhanu Shali Vs National Insurance Co.
Ltd. (2012) 11 SCC 738
4.Ranjana Prakash Vs Divl. Manager (2011) 14
SCC 639

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. List has been revised. No one
appears on behalf of the respondent nos.1
and 2.

2. Heard Sri Tarun Kumar Mishra,
learned counsel for the appellant and Sri
Pankaj Pandey, learned counsel appearing
on behalf of respondent nos.3 and 4.

3. This first appeal from order under
section 173 of the Motor Vehicles Act,
1988 (for short ''Act'), has been filed by
the United India Insurance Company
Limited against the judgment and award
dated 05.05.2005 passed by the Motor
Accident
Claims
Tribunal/Additional
District Judge/Special Judge (E.C. Act),
Gonda in MACP No.29 of 2004 (Surya
Narayan Shukla and another versus Shiva
Shankar Mishra and others), whereby a
sum of Rs.3,62,000/- along with interest
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
at the rate of 9% has been awarded to the
respondent nos.1 and 2.

4. The deceased, Dinesh Kumar
Shukla, is the son of the respondent nos.1
and 2. On 02.02.2004, at about 2.30 in the
afternoon, the deceased and Shyama
Prasad were riding a bicycle on their way
home. When they reached Tikri turn, a
truck no.UP 62 C 5079, came from the
opposite direction and hit the bicycle. As
a result of the accident Dinesh Kumar
Shukla died on the spot.

5. The parents of the deceased
Dinesh Kumar Shukla, filed a claim
petition under Section 166 of the Act
claiming compensation to the tune of Rs
67,75,000/-.
They
pleaded
that
the
accident was caused due to rash and
negligent driving of the truck, owned by
respondent no.3 and driven by respondent
no.4 and that, at the time of his death the
age of the deceased was 20 years and he
was a student of B.Com and had a
diploma in computer application and was
earning Rs.4,000 per month.

6. By their joint written statement,
respondent nos.3 and 4 denied the
averments made in the claim petition. It
was inter alia stated by them that the
alleged accident never took place and that
they were falsely implicated on account of
some dispute with the police of the local
Police Chowki, Katra. The appellant also
filed its written statement stating that the
driver of the truck did not possess a valid
driving license and that the truck was not
insured with them and also that the
accident was caused due to negligence on
the part of the deceased.

7. The tribunal framed the following
issues:

1⁄411⁄2 D;k fnukad 2&2&04 dks le;
yxHkx 2-30 cts fnu foi{kh la02 Vad la[;k
;w0ih0 62 lh 5079 rst j¶rkj o ykijokgh ls
pykrk gqvk ;kph ds iq= fnus'k dqekj 'kqDyk
dks VDdj ekj fn;k ftlls mldh ekSds ij gh
nq?kZVuk LFky ij gh e`R;q gks xbZ\

1⁄421⁄2 D;k pkyd ds ikl oS| pkyd
vuqKki= Fkk\

1⁄431⁄2 D;k nq?kZVuk ds le; xr okgu
foi{kh la[;k 3 ds ;gkWa chfer Fkh vkSj mls chek
dh 'krksZa ds v/khu pyk;k tk jgk Fkk\

1⁄441⁄2 D;k ;kphx.k fdlh izfrdj dks
ikus ds gdnkj gSaA ;fn gkWa rks fdruk vkSj
fdlls\

8. In support of the claim petition
the first respondent examined himself as
PW 1, Vinod Kumar Upadhyay as PW 2
and Shyama Prasad Pathak, who had
witnessed the accident, as PW 3. The
respondents nos.1 and 2 also field
documentary evidence in support of their
case. No one appeared on behalf of
respondent nos.3 and 4, and as such, the
claim proceeded ex parte against them.

9. After analyzing the evidence, the
Tribunal decided issue no.1 in the
affirmative and held that the accident was
caused due to rash and negligent driving
of the truck owned by the third
respondent.

10. While dealing with issue no.2,
the Tribunal arrived at a finding that the
income of the deceased was Rs.3,000/-. It
also determined that the deceased was a
bachelor. The Tribunal deducted 1/3rd of
his monthly salary and determined the
loss of earnings to the family at
Rs.2,000/-. The Tribunal then applied the
multiplier 15 and declared that the
2 All. Union of India Insurance Company Ltd. Vs Surya Narayan Shukla & Ors.
1027
claimants are entitled to get compensation
of Rs.3,62,000/- along with interest at the
rate of 9% per annum from the date of the
claim petition.

11. On the issue of deduction
towards personal and living expenses in
Sarla Verma v. DTC, (2009) 6 SCC 121,
the Apex Court has held that:

"31. ... In regard to bachelors,
normally, 50% is deducted as personal
and living expenses, because it is assumed
that a bachelor would tend to spend more
on himself. Even otherwise, there is also
the possibility of his getting married in a
short time, in which event the contribution
to the parent(s) and siblings is likely to be
cut
drastically.
Further,
subject
to
evidence to the contrary, the father is
likely to have his own income and will not
be considered as a dependant and the
mother alone will be considered as a
dependant. In the absence of evidence to
the contrary, brothers and sisters will not
be considered as dependants, because
they will either be independent and
earning, or married, or be dependent on
the father."

12. The deduction ordinarily in the
case of a bachelor at 50% has been
recently approved by a three-Judge Bench
decision of the Apex Court in Reshma
Kumari v. Madan Mohan, (2013) 9 SCC
65. Paragraph 41 and 42 of the said report
are as follows:

"41. The above does provide
guidance for the appropriate deduction for
personal and living expenses. One must
bear in mind that the proportion of a
man's net earnings that he saves or spends
exclusively for the maintenance of others
does not form part of his living expenses
but what he spends exclusively on himself
does. The percentage of deduction on
account of personal and living expenses
may vary with reference to the number of
dependent members in the family and the
personal living expenses of the deceased
need not exactly correspond to the
number of dependants.

42. In our view, the standards
fixed by this Court in Sarla Verma on the
aspect of deduction for personal living
expenses in paras 30, 31 and 32 must
ordinarily be followed unless a case for
departure in the circumstances noted in
the preceding paragraph is made out."

13. Admittedly, both the parents,
namely, the respondent nos.1 and 2 herein
have been held to be dependent on the
deceased Dinesh Kumar Shukla and
therefore, the Tribunal held that they have
the right to get the compensation. The
Tribunal has made a deduction of 1/3rd
only towards personal and living expenses
of the deceased. Whereas, in view of the
settled legal position, the deceased being
a bachelor and the claimants being
parents, the deduction of 50% should
have been made under the head of
personal and living expenses.

14. Though the counsel for the
respondent nos.1 and 2 is not present,
however,
while
going
through
the
impugned award it has transpired that the
Tribunal has applied the multiplier of 15
on the basis of the age of the parents/
claimants. In Amrit Bhanu Shali v.
National Insurance Co. Ltd., (2012) 11
SCC 738, the Apex Court has held as
follows:

"15. The selection of multiplier
is based on the age of the deceased and
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
not on the basis of the age of the
dependent. There may be a number of
dependents of the deceased whose age
may be different and, therefore, the age of
the dependents has no nexus with the
computation of compensation."

15. In Sarla Verma (supra) the Apex
Court in paragraph 42 of the said report
has held that the multiplier to be used
should be as mentioned in column (4) of
the table of the said judgment which starts
with an operative multiplier of 18. As the
age of the deceased at the time of the
death was 20 years, the multiplier of 18
ought to have been applied. The Tribunal
taking into consideration the age of the
deceased wrongly applied the multiplier
of 15.

16. In Ranjana Prakash v. Divl.
Manager, (2011) 14 SCC 639, the Apex
Court has laid down that in an appeal filed
by the owner / insurer the claimants can
defend the quantum of compensation
awarded by the Tribunal by pointing out
other errors or omissions in the award.
Paragraphs 6, 7 and 8 of the report are
reproduced below:

"6. We are of the view that the
High Court committed an error in
ignoring the contention of the claimants.
It is true that the claimants had not
challenged the award of the Tribunal on
the ground that the Tribunal had failed to
take note of the future prospects and add
30% to the annual income of the
deceased. But the claimants were not
aggrieved by Rs 23,134 being taken as the
monthly income. There was therefore no
need for them to challenge the award of
the Tribunal. But where in an appeal filed
by the owner/insurer, if the High Court
proposes to reduce the compensation
awarded by the Tribunal, the claimants
can certainly defend the quantum of
compensation awarded by the Tribunal,
by pointing out other errors or omissions
in the award, which if taken note of,
would show that there was no need to
reduce
the
amount
awarded
as
compensation. Therefore, in an appeal by
the owner/insurer, the appellant can
certainly put forth a contention that if
30% is to be deducted from the income
for whatsoever reason, 30% should also
be added towards future prospects, so that
the compensation awarded is not reduced.
The fact that the claimants did not
independently challenge the award will
not therefore come in the way of their
defending the compensation awarded, on
other grounds. It would only mean that in
an appeal by the owner/insurer, the
claimants will not be entitled to seek
enhancement of the compensation by
urging any new ground, in the absence of
any cross-appeal or cross-objections.

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
2 All. Gaya Prasad Vs Smt. K. Trivedi & Anr.
1029
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
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." (emphasis supplied)

17. The Tribunal has assessed the
monthly income of the deceased at
Rs.3000/-. The Tribunal has rightly taken
into consideration the aforesaid income
for computing the compensation. The
annual income comes to Rs.36,000/-. If
50% of the said income is deducted
towards personal and living expenses of
the deceased, the contribution to the
family will be Rs.18,000/-. At the time of
the accident, the deceased Dinesh Kumar
Shukla was a bachelor of about 20 years
old. Hence on the basis of the decision in
Sarla
Verma
(supra)
applying
the
multiplier of 18, the amount will come to
Rs.3,24,000/-. Besides this amount the
claimants have been held entitled to
Rs.2,000/- on account of funeral and ritual
expenses. Therefore, the total amount
comes to Rs.3,26,000/- and the claimants
are entitled to get the said amount of
compensation instead of the amount
awarded by the Tribunal. They would also
be entitled to get interest at the rate of 6%
per annum from the date of the filing of
the claim petition till realization.

18. In view of the above, the appeal
is partly allowed. The impugned judgment
and award stands modified to the above
extent. The amount which has already
been received by the respondents nos.1
and 2 shall be adjusted and the rest of the
amount be paid at an early date. No order
as to cost.

19. The original record shall be
returned to the Tribunal forthwith.
----------

(2019)10ILR A 1029

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2019

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 16 of 2004

Gaya Prasad ...Appellant
Versus
Smt. K. Trivedi & Anr. ...Respondents