# United India Insurance Company Ltd v. Smt. Shashi Prabha & Ors

- **Citation:** (2020) 2 ILRA 1032
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-05
- **Case number:** FAFO No. 847 of 2006
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/united-india-insurance-company-ltd-v-smt-shashi-prabha-ors-45604
- **Pages:** 12

## Headnote

A Civil Law-Motor Vehicles Act (59 of
1988)
- Section 149 (2)
- Fitness
Certificate as defence - In the instant
case there was no fitness certificate for
plying the offending vehicle - Held -
Requirement of fitness certificate of
vehicle is not available as a defence u/s
149(2) to the Insurance Company to
escape the liability from payment of
compensation - Further if the vehicle is
used for private service and not for public
vehicle, then fitness certificate is not
required (Para 40, 42)

B. Civil Law-Motor Vehicles Act (59 of
1988) - Ss 166, 168 - Future Prospect -
2 All. United India Insurance Company Ltd. Vs. Smt. Shashi Prabha & Ors.
1033
Deceased self-employed - aged about 43
years (between the age of 40 to 50 years)
- Held - an addition of 25% of the income
(Para 46)

C. Civil Law-Motor Vehicles Act, 1988 (59 of
1988) - Ss 166, 168 - Compensation - Selection
of Multiplier - deceased aged about 43 years -
Held - Operative multiplier is 14 for the age
group of 41 to 45 years (Para 44)

D. Civil Law-Motor Vehicles Act (59 of 1988) -
Ss
166,
168
-
Reasonable
figures
on
conventional heads, namely loss of estate, loss
of consortium and funeral expenses should be
Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively (Para 46)

E. Civil Law-Motor Vehicles Act (59 of 1988) ,
S.166,168 - Compensation - Enhancement - No
direct proof of income- Accident took place in
year 2004 - deceased having own shop of Urea
fertilizer - Held - as per the evidence adduced
Tribunal rightly assessed income of the
deceased as Rs. 6,000/- per month against the
claimed income of Rs. 8,000/- per month (Para
27)

Appeal Partly allowed (E-5)

List of cases cited :

## Text

1032 INDIAN LAW REPORTS ALLAHABAD SERIES
to the Central Government under Section 3
of the Essential Commodities Act and is
therefore, on account of a change in law."

The Tribunal has relied on the
decisions of the Privy Counsel and Apex
Court and also relied upon the affidavit of
appellant filed before the Tribunal before
the Award passed.

The awarding of interest cannot
be said to be in any manner, warranting
any interference, however, the factum of
interest, in our view may be considered,
which in our view is on higher side looking
to prevalent practice at the relevant time.
The quantum of interest, if reduced to 9%
from 15%, the same would meet with ends
of justice. As a result thereof, we modified
the same and factum of interest is ordered
to be reduced from 15% to 9%. The rest of
the award is not interfered in any
manner."

21. Hence, the interest shall be
payable at the rate of 9% and not at 12%
as that was not the rate fixed. The appeal is
partly allowed. The arbitral award and the
order of the Court below shall stand
modified to the aforesaid extent.

22. Interim relief granted by this
Court on 8.12.1989 shall stand vacated
forthwith.
The
amounts
if
yet
not
deposited, the same be deposited by
recalculating
the
appellants
as
expeditiously as possible with the interest
accrued not later than 12 weeks from
today and, if the amount has already been
deposited, the respondent shall refund the
amount to the State namely 3% of the
award made within three months from
today failing which the State shall be at
liberty to take action as per the provisions
of law as they have failed to appear when
the matter is being taken up.

23. This Court is thankful to Sri S.K.
Mehrotra,
learned
Standing
Counsel
appearing for the State for restructuring
the matter and ably assisting the Court.
However, no earlier orders has been
placed on record of this Court.
----------
(2020)02ILR A1032

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.02.2020

BEFORE

THE HON'BLE MANISH KUMAR, J.

FAFO No. 847 of 2006
with
FAFO No. 256 of 2007
with
FAFO Defective No. 678 of 2008

United India Insurance Company Ltd.
 ...Appellant
Versus
Smt. Shashi Prabha & Ors....Respondents

Counsel for the Appellant:
Jitendra Narain Misra

Counsel for the Respondents:
J.K. Shukla

A Civil Law-Motor Vehicles Act (59 of
1988)
- Section 149 (2)
- Fitness
Certificate as defence - In the instant
case there was no fitness certificate for
plying the offending vehicle - Held -
Requirement of fitness certificate of
vehicle is not available as a defence u/s
149(2) to the Insurance Company to
escape the liability from payment of
compensation - Further if the vehicle is
used for private service and not for public
vehicle, then fitness certificate is not
required (Para 40, 42)

B. Civil Law-Motor Vehicles Act (59 of
1988) - Ss 166, 168 - Future Prospect -
2 All. United India Insurance Company Ltd. Vs. Smt. Shashi Prabha & Ors.
1033
Deceased self-employed - aged about 43
years (between the age of 40 to 50 years)
- Held - an addition of 25% of the income
(Para 46)

C. Civil Law-Motor Vehicles Act, 1988 (59 of
1988) - Ss 166, 168 - Compensation - Selection
of Multiplier - deceased aged about 43 years -
Held - Operative multiplier is 14 for the age
group of 41 to 45 years (Para 44)

D. Civil Law-Motor Vehicles Act (59 of 1988) -
Ss
166,
168
-
Reasonable
figures
on
conventional heads, namely loss of estate, loss
of consortium and funeral expenses should be
Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively (Para 46)

E. Civil Law-Motor Vehicles Act (59 of 1988) ,
S.166,168 - Compensation - Enhancement - No
direct proof of income- Accident took place in
year 2004 - deceased having own shop of Urea
fertilizer - Held - as per the evidence adduced
Tribunal rightly assessed income of the
deceased as Rs. 6,000/- per month against the
claimed income of Rs. 8,000/- per month (Para
27)

Appeal Partly allowed (E-5)

List of cases cited :

1. Sarla Verma (Smt) & ors Vs Delhi Transport
Corporation & Anr (2009) 6 SCC 121

2. National Insurance Company Vs Prannay Sethi
(2017)16 SCC 680

3. Chameli Devi & Ors Vs Jivrail Mian & Ors (2019) (4)
TAC 724 (SC)

4. South Central Employees Coop. Credit Society
Employees Union Vs Yashodabai & Ors (2015)2 SCC
727

5.Dwarikesh Sugar Industries Ltd Vs Prem Heavy
Engineering Works Pvt Ltd & Anr AIR (1997) SC 2477

6.Oriental Insurance Company Ltd. Vs Sushil Kumar
Pandey & Ors, (2013) (2) TAC 361 (All)

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Sri Jitendra Narain Misra, learned
counsel for the United India Insurance Company
Ltd., Sri Jay Krishna Shukla, learned counsel for
the vehicle-owner and Sri Mukesh Singh, learned
counsel for the claimant.

2. There are three First Appeals From
Order under Section 173 of Motor Vehicle Act,
1988, challenging the judgment and order/award
dated 10.08.2006 passed by the Motor Accident
Claims Tribunal/Additional District Judge Court,
No. 4 Pratapgarh. The details of above three First
Appeal From Orders are given below:-

(i) First Appeal From Order no. 847
of 2006, preferred by United India Insurance
Company Limited,

(ii) First Appeal From Order no. 256
of 2007, preferred by owner of the vehicle,

(iii) First Appeal From Order no. 678
of 2008, preferred by the claimant.

3. The factual matrix in all three cases is the
same that on 09.10.2004, one Sri. Gulab Chandra
who was driving a motor-cycle was hit by the
speeding Marshal Jeep bearing No. U.P. 70 V
5655, driving rashly and negligently due to which
Sri Gulab Chandra had fallen on the road and the
jeep driver ran away crushing him as a result of
which Sri Gulab Chandra got grievous injuries
and with the help of local resident and his
nephew he was taken to District Hospital on the
way he succumbed to his injuries. At the time of
the death, deceased Sri Gulab Chandra was about
43 years of age and having good health.
Deceased Sri Gulab Chandra was having his
own shop of Urea fertilizer in Derwa Bazar and
his monthly income was Rs. 8,000/- per month.

FIRST APPEAL FROM ORDER
NO. 847 OF 2006 filed by United India
Insurance Company

4. The First Appeal From Order No.
847 is preferred by the United India
Insurance Company Ltd. challenging the
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
order/award dated 10.08.2006, mainly on
two grounds which are as follows:-

(i) The quantum of compensation
awarded in the judgment and order/award
dated 10.08.2006 is to be set aside and
modify the same in terms of the Schedule 2
under Section 163(A) of the Motor Vehicle
Act, 1988, wherein in absence of any proof
of income of the deceased as per the
Scheduled, the income shall be determined
as Rs. 15,000 per annum, whereas the
Tribunal in its award has determined the
income @ of 6,000/- per month which
comes to Rs. 72,000/- per annum.

(ii) There is no direct evidence of
proof of income of the deceased Sri Gulab
Chandra

5. Learned counsel for the appellant has
submitted that the finding in the award
pertaining to determination of income i.e. Rs.
6,000 per month, which comes to Rs. 72,000/-
per annum is in pursuance of the evidence
adduced by the claimant i.e. Insurance
Premium Receipt namely Pradarshak 30 (ga),
Telephone Bills as Pradarshak 31 (ga), Copy
of the Motor Cycle Certificate as Pradarshak
26 (ga), Licence for the sale of Urea as
Pradarshak 32 (ga)/3 and the receipts of
purchase of Urea from Devendra Kumar
Mahadev Prasad amounting to Rs. 10,00,000/-
as Pradarshak 32 (ga)/1 to 32 (ga)/35. All these
documents which have been enclosed was
uptill March 2003, whereas the accident took
place on 09.10.2003 in which Sri Gulab
Chandra had died. The licence issued in favour
of the deceased for sale of Urea was for the
period since 15.07.2000 to 31.03.2003.
Learned counsel for the appellant has further
submitted that since 01.03.2003, till the date of
death of Sri Gulab Chandra i.e. on 09.10.2003,
but no evidence was adduced by the claimants
that after March 2003, whether deceased was
employed or how he was earning his
livelihood and there is nothing on the record to
show the monthly income of deceased.

6. Learned counsel has further contended
that at the most as per the judgment of the
Apex Court, if there is no proof of income then
the calculation should be treated as Rs. 3,000/-
per month which comes to Rs. 36,000/- per
annum.

7. On the other hand, learned
counsel for the claimant has contended
as follows:-

(i) There is no mistake in
determining the income of the deceased
as Rs. 6,000/- per month mainly for the
reason that the Apex Court in catena of
decisions
have
already
held
that
minimum income of a person who is
unemployed or where there is no direct
proof of income shall not be less than
6,000/- per month.

(ii) The evidence which is on
the record clearly establishes that the
deceased was paying the insurance of
Rs.
1,600/-
approximately,
since
25.03.1987, that was much prior to his
death.

(iii) There is no illegality or
perversity
in
appreciation
of
the
evidence adduced before the Tribunal
while calculating the loss to the
claimants @ Rs. 6,000/- per month.

8. After perusal of the records, it
is found that the Tribunal in its
judgment/award dated 10.08.2006 has
determined the monthly income of the
deceasesd as Rs. 6,000/- per month i.e.
Rs. 72,000/- per annum and after
deducting
one-third
against
the
personal expenses of the deceased
which comes to Rs. 24,000/- per
annum and the compensation was
2 All. United India Insurance Company Ltd. Vs. Smt. Shashi Prabha & Ors.
1035
calculated by the Tribunal as Rs.
48,000/- per annum.

FIRST APPEAL FROM ORDER
NO. 256 OF 2007 filed by Owner

9. The First Appeal from Orders No.
256 of 2007 is preferred by the owner of
the vehicles with a delay of few months
but the same has already been condoned
by this Court vide its order dated
30.07.2017. In the present First Appeal
From Order an application along with an
affidavit under Order 41 Rule 27 C.P.C.
was also filed enclosing the driving licence
of the driver Rakesh Kumar Yadav who
was driving the vehicle at the time of the
accident. The reason indicated in the
affidavit filed along with the application
under Order 41 Rule 27 C.P.C for leading
additional evidence before this Court that
the appellant-owner of the vehicle had
never ever received the summons from the
Tribunal and the award has been given exparte without providing any opportunity to
defend before the Tribunal. In support of
the averment made, learned counsel has
drawn the attention of this Court towards
the lower Court record pertaining to ordersheets of different dates dated 27.09.2004,
12.04.2005,
11.05.2005,
13.07.2005,
05.04.2005 and 23.04.2005.

10. It has further been contended that
the Tribunal suddenly passed an order in
absence of any thing on record that the
claimant had taken any step and notice
was sent by the registered post and
proceeded ex-parte. Hence, the appellant
has no other option except to move an
application under Order 41 Rule 27 C.P.C.
before this Court.

11. Learned counsel representing
owner/appellant has contended that in the
award the finding by the Tribunal for
holding the licence invalid by giving the
finding that on the licence filed by the
complainant the name of the driver shown
different. The said finding in the award has
been
given
without
providing
any
opportunity to the owner/appellant and
solely relied upon the licence filed by the
claimants. Whereas, the licence in favour
of the driver of the vehicle is valid licence
and in support reliance has been placed on
the photocopy of the licence filed along
with an affidavit in support of application
under Order 41 Rule 27 of C.P.C. where
only the name i.e. Sri Rakesh Kumar
Yadav is written.

12. It has further been contended that
in the finding that there is no fitness
certificate of the vehicle on the record for
plying the vehicle is perverse as per subSection 1 of Section 149 of Motor Vehicle
Act,
1988
which
provides
defence
available to the Insurance Company for
denying the payment but in defence the
requirement of fitness certificate is not
available with the Insurance Company.

13.

Learned
Counsel
further
contended that as per the law laid down by
this Court and the Supreme Court, if the
vehicle is for private use and not for
commercial then fitness certificate is not
required.

14. At this stage, this Court asked the
learned counsel representing the Insurance
Company whether Insurance Company
would like to file objection against the
applicant under Order 41 Rule 27 C.P.C.
Learned
counsel
for
the
Insurance
company has given a statement on the
basis of instruction that there is no need to
file any objection against the application
for the reason licence enclosed along with
application has already been verified from
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
the Regional Transport Officer (hereinafter
referred to as "R.T.O."), Kalayan Mumbai
and as per the report of the R.T.O.,
Kalayan, Mumbai, licence was issued in
the name of Sri Rakesh Kumar Yadav and
the licence number filed before the
Tribunal by the claimant and the owner
before this Court is the same.

15. Learned Counsel for the
Insurance Company was unable to dispute
the contention raised by the learned
counsel for the owner/appellant pertaining
to the requirement of fitness certificate of
the vehicle.

FIRST APPEAL FROM ORDER
NO. 678 of 2008 filed by the Claimant

16. The First Appeal From Order is
preferred by the claimant with a delay of
about two years and neither the delay has
been condoned nor the First Appeal From
Order has been admitted till date. After
examining the affidavits filed along with
delay condonation application the reasons
indicated in the affidavit are satisfactory,
hence, the delay is condoned and the
Appeal is admitted.

17. The First Appeal From Order has
been preferred by the claimant mainly on
the following grounds, which are as
under:-

"(i) The multiplier of 10 has
wrongly been made by the Tribunal, it
shall be 14 as per the Judgment of the
Apex Court in the case of Sarla Verma
(Smt) and others Vs. Delhi Transoport
Corporation and another, (2009) 6 SCC,
121.

(ii) Claim for future prospect as
per Para 61(iv) and (viii) of the National
Insurance Company Vs. Prannay Sethi
(2017), 16 SCC, 680.

18. Learned counsel for the claimants
has further submitted that the evidence
which has been adduced before the
Tribunal
corroborate
with
the
determination of income at Rs. 6,000/- per
month and there is no illegality in the
same. He further submitted that as per the
determination in the case of National
Insurance Company Vs. Prannay Sethi,
(2017), 16 SCC, 680 the claimants are
entitled for additional 25 percent as the
age of the deceased was 43 years.

19. Learned counsel for the claimant
has further drawn the attention of this
Court that for consortium and funeral
expenses, the Tribunal has granted Rs.
2,000/- each, which is not as per the
determination provided by the Apex Court
in Para 61(iv) and (viii) of the case of
National Insurance Company Ltd. Vs.
Prannay Sethi, (2017), 16 SCC, 680,
wherein the Apex Court has held that loss
of estate, loss of consortium and funeral
expenses should be Rs. 15,000/-, Rs.
14,000/- and Rs. 15,000/- respectively.

20. In support of the same, the
learned counsel for the claimant has
further relied the judgment of Chameli
Devi and Others Vs. Jivrail Mian and
Others, (2019) (4) T.A.C. 724 (S.C.), and
wherein the benefit as per the case of
National Insurance Company Ltd. Vs.
Prannay Sethi, (2017), 16 SCC, 680 was
given.

21. On the contrary, learned Counsel
representing the Insurance Company has
submitted that in absence of any proof of
income the claimant is entitled for
compensation as per Schedule II under
Section 163 (A) of Motor Vehicle Act,
1988 and at the most Rs. 3,000/- per
month has been laid down by the Apex
2 All. United India Insurance Company Ltd. Vs. Smt. Shashi Prabha & Ors.
1037
Court and not more than that. An addition
of 25 percent is admissible in the cases
where there is direct proof of established
income and in the present case there is no
direct proof of established income of the
deceased and no evidence was adduced by
the claimants before the Tribunal. Hence
the claimants are not entitled for an
addition of 25 percent. At the same time
learned counsel representing Insurance
Company has very fairly conceded that as
far as loss of estate and loss of consortium
and funeral expenses are concerned, he has
no objection if the same shall be given as
per the determination given by the Apex
Court in the case of National Insurance
Company Ltd. Vs. Prannay Sethi (Supra).

22. Learned counsel for the Insurancecompany has opposed the applicability of
judgment in the case of Chameli Devi and
Others Vs. Jivrail Mian and Others, (2019)
(4) T.A.C. 724 (S.C.) in the present case for the
reason that the deceased in case (Supra) was a
carpenter and self-employed, whereas in the
present case no evidence was adduced before
the Tribunal that after March 2003, the
deceased was earning and hence the
determination in the case ofChameli Devi and
Others Vs. Jivrail Mian and Others, 2019 (4)
T.A.C. 724 (S.C.) is per incuriam and not
applicable.

23. In reply the learned counsel for the
claimant has submitted that in Chameli Devi
case, the deceased expired in the year 2001 and
the Apex Court had considered the per day
wages of an employees as Rs. 200/- meaning
hereby in the case of Chameli Devi and
Others Vs. Jivrail Mian and Others, (2019)
(4) T.A.C. 724 (S.C.), there was no proof of
established income.

24. It has further been contended by the
learned counsel for the claimant/appellant that
multiplier should be of 14 and in support
thereto the reliance has been placed on the
judgment in the case of Sarla Verma (smt)
and Others Vs. Delhi Transport Corporation
And Another (2009) 6 SCC, 121 . The Apex
Court has provided a chart of multiplier
according to the age of the deceased and as per
the chart the claimants are entitled for the
multiplier of 14 as the age of the deceased was
43 years and the same was not disputed by the
learned Counsel representing the Insurance
Company.

25. After hearing the submissions
made by learned counsels for all the
respective
parties
representing
the
Insurance Company, the owner of the
vehicle,
the
claimant
and
after
examining the lower Court records, the
submission advanced by the learned
counsel
representing
the
Insurance
Company that income which has been
determined in the award is against the
statutory provision i.e. Schedule II under
Section 163(A) of the Motor Vehicle
Act, 1988 and against the judgment of
the Apex Court, wherein it has been
provided that in absence of any proof of
income, the income should be Rs.
3,000/- per month which comes to Rs.
36,000/- per annum and hence the award
dated 10.08.2006 is to be set aside and
modified
to
that
extent,
the
said
contention is not acceptable for the
following reasons:-

26. Firstly, the Apex Court in the
case of Chameli Devi (Supra) enhanced
the compensation as assessed by the
Tribunal as Rs. 3,000 per month to Rs.
5,000/- per month. The Apex Court
assessing the income as Rs. 200/- per day
being a carpenter. The relevant extract of
judgment in the case of Chameli Devi
(Supra) is reproduced below:-
1038 INDIAN LAW REPORTS ALLAHABAD SERIES

Para (ii):- This appeal has been
filed for enhancement of compensation.
The Tribunal assessed the income of the
deceased at Rs. 1,250/- per month but
since no positive proof of income was led,
the income of Rs. 15,000/- per annum was
taken as notional income. This obviously is
not a correct position of law. The High
Court accepted the income at Rs. 3,000/-
per month. According to us, the income
assessed by the High Court is on the lower
side. The accident happened on 2nd
January, 2001. The Tribunal and the High
Court held that no proof of income has
been produced to show that the deceased
was alleged to be a carpenter. We fail to
understand what proof can lead except to
lead oral evidence.

Para (iii):- Keeping in view the
fact that the accident took place in 2001
and the deceased was a carpenter, it
would not be unjustified to assess his
income at Rs. 200/- per day. It is true that
carpenter may not get work every day,
hence, we assess the income at Rs. 5,000/-
per month. Adding 40% for future
prospects i.e. Rs. 2,000/-, the total income
works out to Rs. 7,000/- Deducting 1/5th
for personal expenses, keeping in view a
large number of dependents, the datum
figure comes out to Rs. 5,600/- per month
or Rs. 67,200/- per year. Applying
multiplier of 16, the compensation works
out to Rs. 10,75,200/- . Rs. 70,000/- is
added towards other non-conventional
heads as laid down in National Insurance
Co. Ltd. Vs. Pranay Sethi & Ors, (2017)
16 S.C.C. : 20117 (4) T.A.C. 673. The total
compensation comes out to Rs. 11,45,200/-

27. Secondly, as per the evidence
adduced the Tribunal has rightly assessed
the income of the deceased as Rs. 6,000/-
per month against the claimed income of
Rs. 8,000/- per month. The evidence
which is on the record i.e. Insurance
premium receipts namely Pradarshk 30
(ga) clearly establishes that the deceased
was paying the insurance of Rs. 1,600/-
approximately since 25.03.1987 i.e. much
prior to his death and the period of licence
for running a Urea shop since 15.07.2002
to 31.3.2003.

28. Under these circumstances, this
Court does not find any reason to interfere
in the income of the deceased assessed by
the Tribunal and in the light of the
judgment in the case of Chameli Devi
(Supra), the Tribunal has rightly assessed
the income of the deceased.

29. The submission raised by the
learned counsel for the claimant for
payment of additional 25 per cent for
future prospect, loss of consortium and
funeral expenses as per the full Bench
decision of Apex Court in the case of
Prannay Sethi (Supra), wherein the Apex
Court after the analysis, the conclusion is
in para 61(iv) and (viii) of the judgment.
The relevant portion which is applicable in
the present case is reproduced below:-

"(iv) In case the deceases was
self-employed or on a fixed salary, an
addition of 40% of the established income
should be the warrant where the deceased
was below the age of 40 years. An addition
of 25% where the deceased was between
the age of 40 to 50 years and 10% where
the deceased was between the age of 50 to
60 years should be regarded as the
necessary method of computation. The
established income means the income
minus the tax component.

(viii) Reasonable figures on
conventional heads, namely loss of estate,
loss of consortium and funeral expenses
should be Rs. 15,000/-, Rs. 40,000/- and
2 All. United India Insurance Company Ltd. Vs. Smt. Shashi Prabha & Ors.
1039
Rs. 15,000/- respectively. The aforesaid
amounts should be enhanced at the rate of
10% in the every three years."

30. Similarly, the Apex Court in the
case of Chameli Devi (Supra) has given
the benefit as per the judgment in case of
National Insurance Company Ltd. Vs.
Prannay Sethi (Supra),. After going
through the judgment of the Apex Court
the submission raised in pursuance thereof
and the learned counsel representing the
Insurance Company has not disputed the
same and hence as per the law laid down
by the Apex Court the claimants are also
entitled for the same benefit.

31. The contention of the learned
counsel
representing
the
Insurance
Company that the judgments cited by the
learned counsel representing the claimants
in the case of Chameli Devi and Others
Vs. Jivrail Mian and Others (Supra) is
per incuriam.

32. The said submission of the
learned counsel representing the Insurance
Company is not acceptable for the reason
that in the case of Chameli Devi and
Others Vs. Jivrail Mian and Others
(Supra), the Apex Court has given the
benefit of National Insurance Company
Ltd. Vs. Prannay Sethi (Supra), and the
applicability of the Prannay Sethi (Supra)
case is not disputed by the learned counsel
representing the Insurance Company.

33. If the contention of learned
counsel
representing
the
Insurance
Company is accepted by this Court then
same would be in contravention of the law
laid down by the Apex Court in the case of
South Central Employees Cooperative
Credit Society Employees Union Vs.
Yashodabai And Others, (2015) 2 SCC,
727, wherein it has been held that if the
High Courts or Subordinate Courts took a
different view, there would be total chaos
reason being there would be no finality to
any order passed by the Apex Court. The
High Courts and the Subordinate Courts
must follow the decision of the Apex
Court unless it is distinguished or
overruled or set aside.

34. The Apex Court in the case of
Dwarikesh Sugar Industries Limited Vs.
Prem Heavy Engineering Works Private
Limited and Another reported in AIR
(1997) S.C. 2477 has laid down if the
position in law is well settled as per the
judicial pronouncement, taking a different
view by the subordinate Courts including
the High Courts clearly amount to judicial
impropriety.

35. From the discussions made
above, the First Appeal From Order No.
847 of 2006 filed by the Insurance
Company deserves to be dismissed.

36. The First Appeal From Order No.
256 of 2007 preferred by the owner of the
vehicle, the submission raised by the
learned
counsel
representing
the
owner/appellant
for
allowing
the
application under Order 41 Rule 27 C.P.C.
along with an affidavit. The reasons shown
for allowing the application under Order
41 Rule 27 C.P.C. are satisfactory. After
the perusal of the order-sheets of different
dates showing that steps were never ever
taken by the claimant and notice/summons
were never ever served upon the owner of
the vehicles and specially when the same
has not been disputed by the learned
counsel representing the claimant as well
as the Insurance Company after examining
the lower Court's record and when the
learned Counsel representing the Insurance
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
Company has made a submission after
examining the lower Court's record and
has further made a submission that he has
no objection in allowing the application.
On the basis of instructions learned
counsel
representing
the
Insurance
Company has also given a submission that
the licnence filed along with an application
under Order 41 Rule 21 C.P.C. has already
been verified from the R.T.O., Kalayan,
Mumbai and as per the report the licence is
valid issued in favour of Sri Rakesh
Kumar Yadav. The Counsel representing
the claimant has also made a submission
that there is no objection in allowing the
application under Order 41 Rule 27 C.P.C.
Application under Order 41 Rule 27
C.P.C. along with an affidavit is hereby
allowed.

37. From the perusal of the licence
filed along with an affidavit in support of
application under Order 41 Rule 27 of
C.P.C., the licence is in the name of Sri
Rakesh Kumar Yadav, the driver who was
driving the vehicle at the time of the
accident on 09.10.2004 and when the same
was supported by the statement given by
the learned counsel representing the
Insurance Company that the said licence
got verified from the R.T.O., Kalyan,
Mumbai and as per the report of the
R.T.O., Kalayan, Mumbai the licence
issued in favor of the Sri Rakesh Kumar
Yadav, The finding given by the Tribunal
in award dated 10.08.2006 to the extent of
validity of the licence is not acceptable.
The validity of the licence verified by the
R.T.O., Kalayan, Mumbai, has not been
disputed
by
the
learned
Counsel
representing the claimants.

38. Hence finding to the effect of the
invalid licence of the driver by the
Tribunal in its award dated 10.08.2006 is
set aside.

39. The finding of the Tribunal in
the award dated 10.08.2006 pertaining
to the absence of fitness certificate is
not in consonance with the sub-Section
2 of Section 149 of Motor Vehicle Act
1988 which is reproduced below:-

"(2) No sum shall be payable
by an insurer under sub-section (1) in
respect of any judgment or award
unless, before the commencement of
the proceedings in which the judgment
or
award
unless,
before
the
commencement of the proceedings in
which the judgment or award is given
the insurer had notice through the
Court or, as the case may be, the
Claims Tribunal of the bringing of the
proceedings, or in respect of such
judgment
or
award
so
long
as
execution is stayed thereon pending an
appeal; and an insurer to whom notice
of
the
bringing
of
any
such
proceedings is so given shall be
entitled to be made a party thereto and
to defend the action on any of the
following grounds, namely :-

(a) that there has been a
breach of a specified condition of the
policy, being one of the following
conditions, namely -

(i) a condition excluding the
use of the vehicle-

(a) for hire or reward, where
the vehicle is on the date of the
contract of insurance a vehicle not
covered by a permit to ply for hire or
reward, or

(b) for organized racing and
speed testing, or
2 All. United India Insurance Company Ltd. Vs. Smt. Shashi Prabha & Ors.
1041

(c) for a purpose not allowed
by the permit under which the vehicle
is used, where the vehicle is a
transport vehicle, or

(d) without side-car being
attached where the vehicle is a motor
cycle; or

(ii)
a
condition
excluding
driving by a named person or persons
or by disqualified for holding or
obtaining a driving licence during the
period of disqualification; or

(iii)
a
condition
excluding
liability for injury caused or contributed to
by conditions of war, civil war, riot or civil
commotion; or

(b) that the policy is void on the
ground that it was obtained by the nondisclosure of a material fact or by a
representation of fact which was false in
some material particular."

40. From the perusal of the subSection 2 of Section 149 of the Motor
Vehicle Act, 1988, the fitness certificate of
vehicle is not required as a defence to the
Insurance Company to escape the liability
from payment of compensation to the
family of the deceased. The Counsel
representing the Insurance Company and
the claimants has failed to dispute to the
fact that fitness certificate is not required
for payment of compensation by fixing the
liability of the Insurance Company for the
purposes of payment of compensation.

41. The judgment relied by the
learned
counsel
representing
owner/appellant in the case of Oriental
Insurance Company Ltd. Vs. Sushil
Kumar Pandey and Others, (2013) (2)
T.AC. 361 (All.), wherein it has been held
that if the vehicle is used for private
service and not for another service or
public vehicle, then fitness certificate is
not required. The relevant portion of the
above-mentioned judgment is reproduced
below:-

"(4) The case of the learned
Counsel for the appellant is that the
offending vehicle is a private service
vehicle and, therefore, it is the transport
vehicle and hence the fitness certificate is
required for the said vehicle under Section
56 of the Act. Private service vehicle is
defined by Section 2(33) of the Act
(referred hereinabove). Only those motor
vehicles, which carries persons for, or in
connection with trade or business of the
owner shall be considered as private
service vehicle and not any other private
service
vehicle
or
public
vehicle.
Therefore, in order to cover the vehicle
under the definition of private vehicle it is
to be established that the vehicle is being
used in connection with his trade or
business by the vehicle owner.

(5) In the present case, it is not
the case of the Insurance Company that
the offending vehicle was being used for
carrying of the passengers for the
purposes of his trade or business by the
owner of the vehicle, therefore, it cannot
be private service vehicle. In so far as the
Transport Commissioner's circular is
concerned, it cannot be read in isolation
and it is to be read alongwith provisions of
the Act. If it is read alongwith provisions
of the Act, it comes down to, that only
those vehicle having capacity of more than
six persons, is required to have a fitness
certificate, which is being used for
carrying the passengers for, or in
connection with, his trade or business by
the owner of vehicle. Moreover, it is the
settled principle of law that any circular,
which is contrary to the provisions of the
Act is not binding and cannot override the
provisions of the Act."
1042 INDIAN LAW REPORTS ALLAHABAD SERIES

42. Learned counsel representing the
Insurance Company and the claimant has
failed to dispute the legal position settled
by the High Court in the case of Oriental
Insurance Company Ltd. Vs. Sushil
Kumar Pandey (Supra).

43. Under these circumstances, the
finding in the award to the extent of fixing the
liability of the owner on the above-mentioned
case is hereby set aside and the First Appeal
From Order No. 256 of 2007 is allowed to the
extent of finding in the judgment and fixing the
liability of the owner/appellant is set aside and
the First Appeal From Order No. 256 of
2007 is hereby allowed.

44. As far as First Appeal From Order
No.
678
of
2008
preferred
by
the
claimant/appellant is concerned, from the
discussion made above and as per the law laid
down by the Apex Court in the case of
National Insurance Company Ltd. Vs.
Prannay Sethi (Supra) and Chameli Devi and
Others Vs. Jivrail Mian and Others (Supra),
the claimant is entitled for the benefit as
provided in Para 61(IV) and (VIII) of the
Judgment in the case of National Insurance
Company Ltd. Vs. Prannay Sethi (Supra). As
per the judgment passed by the Apex Court in
the case of Sarla Verma (smt) and Others Vs.
Delhi Transport Corporation And Another
(Supra), wherein the chart has been provided
for applying the multiplier for determination of
compensation and as per the same in the case
of the claimants the Tribunal in its award has
wrongly applied the multiplier of 10. Looking
at the age of the deceased multiplier of 14 is
applicable. The same has not been disputed by
the Counsel representing the Insurance
Company.

45. Hence to the extent of multiplier of
10 in the order/judgment of the Tribunal is
hereby set aside.

46. Under these circumstances, the First
Appeal From Order No. 678 of 2008 is
allowed and modifed to the extent to which
claimants are entitled are as follows:-

(i) Compensation with Multiplier
(M-14) X Annual Income as shown in the
Award has come to Rs. 48,000/- per annum
(after deducting 1/3rd of the income against
personal expenses) = Rs. 6,72,000/- (ii) 25
percent of future prospects be added i.e. Rs.
1,68,000/- (iii) Loss of estate i.e. Rs. 15,000/-,
loss of consortium i.e. Rs. 40,000, funeral
charges, i.e. Rs. 15,000, which comes to be Rs.
70,000/- Less Rs. 4,000 ( already determined
by the Tribunal in its award for loss of
consortium and funeral charges) = Rs. 66,000/-

Total = Rs. 6,72,000/- + Rs.
1,68,000/- + Rs. 66,000 = Rs. 9,06,000/-

47. Under these circumstances
First Appeal From Order No. 678 of
2008 is hereby allowed and the
order/award dated 10.08.2006 passed
by Motor Accident Claims Tribunal is
modified in terms as specified above.

48.

United
India
Insurance
Company is directed to pay the balance
amount within a period of two months
from today after deducting the amount
which has already been paid, if any, to
the claimant failing which the interest
will be paid as already determined by
the
Tribunal
in
its
award
dated
10.08.2006.

49. Office is directed to send the
lower Court's record to the concerned
Tribunal.

50. Copy of this judgment shall be
placed in all the three First Appeals From
Order separately.
----------
2 All. National Insurance Co. Ltd. Vs. Smt. Manju Shukla & Ors.
1043
(2020)02ILR A1043

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

FAFO No. 1020 of 2017
connected with
FAFO No. 1859 of 2017
connected with
FAFO No. 342 of 2015

National Insurance Co. Ltd. ...Appellant
Versus
Smt. Manju Shukla & Ors. ...Respondents

Counsel for the Appellant:
Sri Kuldip Shanker Amist

Counsel for the Respondents:
Sri Rakesh Bahadur, Sri Sudhakar Pandey

A.
Civil
Law-Uttar Pradesh Motor Vehicles
Rules, 1998 - Rule 220A - cannot control the
obligation of Tribunal to determine just
compensation

Held - Rule 220A of U.P. Rules, 1998 lays down only a
guideline with respect to award of compensation under
different heads but ultimate authority is that of Tribunal
to determine and award appropriate compensation
which is "just" -Tribunal ought not to have referred to
Rules 220A and 220B for awarding compensation
under any head and instead it ought to have guided
itself by law already settled (Para 95)

B. Motor Accident Claim - Motor Vehicles Act
(59 of 1988) - Ss.166, 168 - Compensation -
under the head of medical expenses, treatment,
medical care etc - deceased in coma - II stage
for about 21 months

Deceased remained in coma - II stage for about 21
months - Pecuniary damages in such case of fatal
injuries and disability cover all the expenses which have
been incurred not only in actual medical treatment i.e.
Doctor fee, Hospital fee, testing fee, medicines cost etc.
but also expenses incurred for hiring nursing services,
expenses incurred by persons present to take care of
the injured, boarding, lodging and travelling expenses
and also the expenses incurred during shifting of
injured from one place to another - Such expenses
cannot be excluded from the total amount of
compensation to be awarded to claimant (Para 105)

C. Civil Law-Motor Vehicles Act (59 of 1988) -
Ss. 166,168 - Compensation - termination of
pregnancy due to accident - deceased pregnant
at the time of accident - Held - a lump sum of
Rs. 2,50,000/- awarded for loss of foetus due to
termination of pregnancy in accident (Para 110)

D. Civil Law- Motor Vehicles Act (59 of 1988) -
S.166 - Compensation - for Pain, shock,
disability etc. - deceased in Coma-II stage for
about 21 months - Held - what deceased
suffered, may not be weighed very accurately in
terms of money, still Rs. 10,00,000/- awarded
under the head of mental shock, pain etc (Para
111)

E. Civil Law-Motor Vehicles Act (59 of 1988) -
Ss. 166, 168 - Compensation - loss of love and
affection - Held Rs. 50,000/- awarded for loss of
love and affection (Para 112)

F. Civil Law-Motor Vehicles Act (59 of 1988) -
Ss. 166, 168 - Compensation - loss of
employment of the claimant husband - as he
was engaged in the care and treatment of his
wife who remained in Coma-II stage

Deceased was housewife - claimant was
husband - loss of employment of Claimant on
account of long duration Coma-II stage of
deceased for about 21 months - Held - loss of
job of claimant husband directly attributable to
the accident & injuries suffered by deceased -
Claimant stated that he was capable of saving
about Rs. 15,000/- per month - Allowing
margin to be discounted, at least loss of saving
of Rs. 10,000/- per month awarded- Rs.
2,10,000/-, in lump sum, awarded to claimant
for loss of employment. (Para 109)

G. Civil Law-Motor Vehicles Act (59 of
1988) - Ss. 166, 168 - Claim petition -
Negligence of driver - Non examination of
drivers - could not have rendered claim