Disposed

New India Assurance Co. Ltd. v. Laxmi Narayan and Others

Allahabad HC20 Apr 2023FAFO/3456/2004

Case brief

AI extract

What is this about?

Appeal by insurer against MACT award for death of a helper in a jeep accident. The High Court upheld the finding that the deceased was a helper covered by the policy, rejected the insurer's appeal, and enhanced compensation from Rs.1,60,000 to Rs.5,96,000 with 7% interest.

What did the court decide?

Compensation enhanced from Rs.1,60,000 to Rs.5,96,000 with interest at 7% per annum from the date of claim petition.

New India Assurance Co. Ltd. Vs Laxmi Narayan and Others — Insurance | Allahabad HC (2023)

¶1

¶2

Neutral Citation No. - 2023:AHC:105443

¶3

Court No. - 64 Reserved A.F.R.

¶4

Case :- FIRST APPEAL FROM ORDER No. - 3456 of 2004

¶5

Appellant :- New India Assurance Co Ltd Respondent :- Laxmi Narayan And Others Counsel for Appellant :- Amaresh Sinha Counsel for Respondent :- ,Ram Ashish Pandey

¶6

Hon'ble J.J. Munir,J.

¶7

1. This appeal is directed against the judgment and award of Mr. V.K. Tyagi, Motor Accident Claims Tribunal/ Special Judge (Essential Commodities Act), Etawah dated 17.08.2004, partly allowing Claim Petition No.70 of 2001.

¶8

2. Heard Mr. Anubhav Sinha, Advocate holding brief of Mr. Amaresh Sinha, learned Counsel for the appellant/ Insurance Company and Mr. Ram Ashish Pandey, learned Counsel appearing on behalf of respondent no. 1/1, the claimant.

¶9

3. The original claimants are respondent Nos.1 and 2 to the appeal, to wit, Laxmi Narayan Dubey and Smt. Kusum wife of Laxmi Narayan Dubey. Pending appeal, the claimantrespondent Nos.1 and 2 died and are now represented by their son Jayant Kumar, arrayed as respondent No.1/1. The claimant-respondent Nos.1 and 2, now represented by claimant-respondent No.1/1, shall hereinafter be referred to as ‘the claimants’.

¶10

4. The claimants are the heirs of the deceased, Rajesh Kumar, who was on board the ill-fated Jeep that met with an accident, morefully described hereinafter.

¶11

5. According to the claimants, on 14.07.2000 at about 2:30 in the midnight hours, Rajesh Kumar @ Pandit was on board Jeep No. UP-75B-9599, proceeding from Kanpur to Etawah. He

¶12

¶13

was carrying with him a consignment of the Hindi daily Amar Ujala to Etawah. The Jeep also had on board Mohd. Iqbal, his wife Kamarul Nisha, their children and 3-5 other persons. Rajesh Kumar was on board Jeep at the time as its conductor. The Jeep was driven by Pramod Kumar. The Jeep driver was driving the vehicle at a high speed and negligently. Near a certain village Mehtauli, the driver dashed the Jeep against a stationary truck, that was parked on the left hand side of the road on the kachcha pavement. The truck bore registration No. UP-65H-7459. The Impact of the accident caused Rajesh Kumar and Kamarul Nisha's death on the spot. The other passengers on board sustained injuries. The Jeep driver deserted post and fled. According to the claimants, the accident happened on account of the exclusive negligence of the Jeep driver. Information of the accident was conveyed by Mohd. Iqbal son of Mohd. Kadir to the Police at P.S. Amarahat, on the basis whereof Crime No.27 of 2000, under Sections 279, 337, 304-A IPC was registered on 14.07.2000 at 4:30 a.m.

¶14

6. The deceased was a healthy man, aged 23 years. He was an able driver and could drive any kind of vehicle. He had worked on the ill-fated Jeep as its driver/ conductor. The deceased would drive the Jeep himself and Pramod Kumar was the driver at the time when the accident happened. When the Jeep had proceeded from Etawah to Kanpur, Rajesh Kumar had operated it and on its way back, Pramod Kumar was on wheel and the deceased was functioning as the conductor. At the time of his demise, the deceased was employed with Raj Kumar son of Naresh Chandra, the owner of the ill-fated Jeep, on a monthly salary of Rs.3000/-, besides Rs.50/- per day towards diet allowance. The deceased's family depended for their sustenance upon his earnings, of which they have been

¶15

¶16

deprived in consequence of the fatal accident. The claimants, who are the father and the mother of the deceased, have been left without support in the evening of their life. Their lives have become burdensome. There is no one to provide for them. The claimants petitioned the Tribunal under Section 163-A of the Motor Vehicles Act, 1988 and also under Section 166. In the former claim, they sought a sum of Rs.4,36,500/-, whereas in the claim under Section 166, they prayed for compensation in the sum of Rs.10,65,000/-. Both sums were claimed cumulatively with 15% interest.

¶17

7. The owner of the ill-fated jeep, Raj Kumar put in a written statement dated 19.01.2002. Raj Kumar shall hereinafter be referred to as 'the owner'. He generally denied the allegations, except that the ill-fated Jeep was insured with the Insurance Company, arrayed as opposite party No.2 to the claim petition. The owner himself was arrayed as opposite party No.1. The Insurance Company is admittedly the New India Assurance Company Ltd., Station Road, Etawah. The Insurance Company shall hereinafter be referred to as 'the Insurers'.

¶18

8. In the additional pleas, the owner said that the claim has been presented on false grounds. It was particularly asserted that the claim petition is not maintainable, both under Sections 163-A and 166 of the Motor Vehicles Act, 1988 (for short, 'the Act'). In any case, the claimants are not entitled to any compensation in terms of either of the remedies. The compensation claimed was exaggerated with no lawful basis to it. The owner denied the fact that the deceased was ever a driver or conductor on board the ill-fated Jeep. The owner would use the Jeep himself. In order to secure compensation for themselves, the owner's Jeep has been cited in the

¶19

¶20

accident. It was also pleaded that the deceased's income, being a sum of Rs.3000/- per month, is falsely alleged by the claimants without any documentary evidence to support. On the fateful day, Pramod Kumar son of Kundi Singh was operating the ill-fated Jeep as its driver, with due caution, adhering to traffic rules. The ill-fated Jeep had valid papers to ply. He was carrying some passengers from Kanpur to Etawah. The offending truck was moving in the middle of the road, ahead of the ill-fated Jeep. The offending truck applied sudden brakes, without a signal or warning. It was in consequence of the aforesaid abrupt braking by the offending truck that the accident happened. The driver of the ill-fated Jeep had no fault or negligence to be attributed with. The claim petition is bad for non-joinder of necessary parties, because the driver and the owner as also the Insurers of the truck have not been made parties. It was pleaded that in connivance of the offending truck’s owner, a false FIR was lodged with the Police, suppressing correct facts. The owner had no liability to make good the compensation payable, because the ill-fated Jeep was in any case insured with the Insurers on the date and time of the accident. It was insured from 24.01.2000 to 23.01.2001 with unlimited liability. In the event, the negligence of Jeep driver is proved, the entire burden would be for the Insurers to bear.

¶21

9. The Insurers put in a separate written statement dated 01.04.2002. They denied that the deceased was the driver or the conductor on board the ill-fated Jeep. They also denied that he had an income of Rs.3000/- per month. It was also asserted that the deceased's age was shown incorrectly in order to secure an unfair advantage in the matter of compensation. The further case pleaded was that the claimants are not dependents of the deceased, and further that they are not the deceased's

¶22

¶23

parents. The occurrence of the accident on the date, time and place was also denied. It was also denied that the deceased died in consequence of the accident. About the registration of the FIR, it was said that the crime was registered in order to gain an unfair advantage out of the accident and the insurance. The insurance policy covering the ill-fated Jeep was said to be vaguely described and incomplete. It was asserted, therefore, by the Insurers that the ill-fated Jeep was not insured with them. In the event, in future the entire insurance papers were produced by the claimants, the Insurers would file an additional written statement. In their additional pleas, other facts pleaded were that no papers, such as the FIR, the site plan, the postmortem report, the charge-sheet etc. required to be filed in Court, have been annexed to the claim petition. No information was given to the Insurers in accordance with Section 134 of the Act. It was particularly pleaded that the deceased was said to be a driver/ conductor and at the time of the accident, the illfated Jeep was said to be carrying a consignment of Amar Ujala newspaper, besides a host of passengers. All this would show that the ill-fated Jeep at the time of the accident was being used as a goods vehicle for others and also carrying gratuitous passengers. All this would show that there was a violation of the terms of the insurance policy, entitling the Insurers to be discharged of their liability. Even if the insurance of the offending vehicle were proved by the owner, the Insurers were not liable on the policy to indemnify.

¶24

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

¶25

“1. Whether on 14.07.2000 at 2:30 in the morning hours at the Auraiya-Kanpur Road, near Village Mehtauli within the local limits of P.S. Amarahat, District Kanpur Nagar, Jeep No. UP-75B-

¶26

¶27

9599, driven negligently and at a high speed by its driver, dashed against a stationary truck, causing the accident, that resulted in grievous injury to Rajesh Kumar @ Pandit, in consequence whereof, he died?

¶28

Whether on the date and time of the aforesaid accident, Jeep No. UP-75B-9599 was insured with the New India Assurance Company Limited?

¶29

Whether on the date and time of the accident, the driver of the Jeep held a valid driving licence?

¶30

Whether the claimants are entitled to compensation? If yes, how much and from which opposite party?”

¶31

11. It must be mentioned here that the Tribunal decided the present claim petition along with Claim Petition No.319 of 2002, preferred by the heirs of the other victim of the accident, Kamarul Nisha, by means of a common judgment and order of the same day.

¶32

12. This appeal was heard along with the appeal arising out of the judgment in Claim Petition No.319 of 2002, filed by Kamarul Nisha's heirs, but this Court has consciously eschewed the course of writing a common judgment, because except for the accident, that took the life of both the victims, the other facts and evidence are different.

¶33

13. Issue No.1 was answered for the claimants holding that the deceased died in the accident caused by the ill-fated Jeep, driven rashly and negligently. Issue No.2 was decided in the manner that while it was held that the ill-fated Jeep was insured with the Insurers on the date of the accident, the issue whether there was a breach of the policy by the owners, would be examined while deciding Issue No.4. Issue No.3 was answered by the Tribunal holding that on the date and time of the accident, the driver of the ill-fated Jeep held a valid driving licence.

¶34

¶35

14. Most of the cavil has centered around the findings on Issue No.4. The Tribunal held that the claimants could not cumulatively or simultaneously claim under Sections 166 and 163-A of the Act. The Tribunal has concluded that the deceased was employed on the Jeep, though not as a driver at the time, but a helper. His income has been held to be a sum of Rs.2000/- per month. The Tribunal has oddly made deductions of one-third for the first stretch of seven years, and then, a half for the remaining three years towards personal expenses. A multiplier of 10 has been adopted, obviously going by the age of the parents, and these ten years have been divided for the purpose of deduction towards personal expense into two different periods of time at two different rates as aforesaid. The total compensation under various heads, which need not be dwelt upon further at this stage, was determined to be a sum of Rs.1,60,000/-, that has been awarded with 6% simple interest from the date of the claim petition till realization.

¶36

15. Mr. Anubhav Sinha, learned Counsel for the Insurers has assailed the finding of the Tribunal about the deceased being employed as a helper on the Jeep, and as he says, the Tribunal somehow fitted in the deceased within the description of a person entitled under the policy to be on board the vehicle. He submits that the Jeep was clearly a private goods carrier, insured as such, and the deceased was travelling on board the Jeep as a gratuitous passenger. He is not a man, for the loss of whose life, the Insurers are liable at all under the policy. It has been urged with much vehemence that the deceased has been described as a conductor, whereas on a private goods vehicle, like the ill-fated Jeep, there is no position of a conductor to serve on board. The policy does not at all cover the risk of a self-styled conductor. The only risk that is covered is for the

¶37

¶38

driver. It is emphasized that carrying passengers on board Jeep by the driver, when the accident happened, is a breach of the insurance policy, entitling the Insurers to be relieved. The Tribunal by perversely reading the evidence on record and also doing violence to the terms of the insurance policy has sustained the claimants’ case to be compensated for the deceased’s death under the policy, which was never intended to cover his risk. In addition, it is argued that the compensation awarded is far on the higher side as there is no proof about the deceased’s income.

¶39

16. Mr. Ram Ashish Pandey, learned Counsel appearing on behalf of the claimants, on the other hand, has supported the impugned award. He says that the deceased was employed on board the ill-fated Jeep as a driver. He was alternating with the driver, who was at the wheel, to wit, Pramod Kumar. Even if the deceased were not held employed as a driver, the Tribunal has rightly regarded him as a helper. The insurance policy covers the risk of a helper also. Mr. Pandey says that far from the award being excessive, it is much on the lower side. He states that though the claimants have not filed any cross-objection, but he has demanded enhancement of compensation by urging an oral objection. He says that it is the duty of this Court to pass a just award. The absence of a duly constituted cross-objection does not disentitle this Court from making a just award in accordance with the claimants’ entitlement.

¶40

17. Mr. Pandey has assailed the quantum of compensation awarded by the Tribunal on ground that the deceased’s income has been incorrectly reckoned and an inappropriate multiplier chosen. He further submits that deduction towards the personal expenses of the deceased is absolutely flawed by spreading

¶41

¶42

out the deduction over a period of 10 years into two different stretches of time at different rates. Apart from this, the learned Counsel says that nothing has been awarded towards future prospects, which the claimants are entitled to, in accordance with the law now fairly well settled. A demand has also been made for award of compensation under the conventional heads according to the settled law.

¶43

18. Upon hearing learned Counsel for the parties, this Court finds that the first question to determine is whether the deceased was travelling as a passenger, gratuitous or otherwise, on board the ill-fated Jeep, or he was an employee on board. If he was an employee, it has to be determined whether he would be covered by the terms of the insurance policy.

¶44

19. The Tribunal has looked into the evidence of the owner, where he has denied the fact that the deceased was his employee on board the ill-fated Jeep, but at the same time admitted the fact that earlier the deceased had worked as a driver on his Jeep. It has figured in the testimony of the owner that he would pay the deceased in wages a sum of Rs.10001500/-. It has also been noticed that the owner has testified to the effect that the deceased had left his job a month before the accident. The Tribunal has remarked that the owner has not been able to say as to who was the deceased’s employer at the time of the accident.

¶45

20. The Tribunal has then looked into the evidence of both PW-1, Laxmi Narayan and the owner, DW-1, besides that of Mohd. Iqbal, PW-2. The Tribunal has opined that PW-2’s testimony about the fact if there was anything to show that the deceased was an employee on board the ill-fated Jeep, would

¶46

¶47

be free from blemish, because Mohd. Iqbal, PW-2 would have no personal interest in the issue. The Tribunal has taken note of the fact that PW-2 has said in his testimony that the deceased was sitting in the Jeep before PW-2 and his family arrived and bargaining with passengers. From all this evidence, the Tribunal has inferred the deceased to be an employee on board the illfated Jeep.

¶48

21. The Tribunal has gone ahead to note that if the deceased was an employee on board the ill-fated Jeep, in what capacity could he be employed. It has remarked that the owner has disowned the fact that on the date of the accident, the deceased was working as the driver. It has then been observed that the owner has not been able to spell out in his testimony if the deceased was not an employee on board the ill-fated Jeep, in what capacity was he seating passengers and settling the fare. The Tribunal has opined that though the word ‘conductor’ is employed in relation to a particular kind of an employee, who would have no place on board a Jeep used as a goods vehicle, yet it has held that the word ‘conductor’ does not always have to be understood in the sense it is employed under the Act. In common parlance, it refers to an employee, who works on a vehicle to assist the driver, help him with proper operation thereof, to load and unload goods and to carry out repairs, if necessary. The Tribunal has concluded that looking to the totality of circumstances, at the time of the accident, the deceased was on board the ill-fated Jeep as a helper to assist in the kind of jobs normally associated with the additional hand on board a vehicle of this type.

¶49

22. The Tribunal has further noted that the insurance policy shows that a sum of Rs.90/- had been paid to cover the risk of

¶50

¶51

a man on board the vehicle for assistance in its operation, upkeep and loading/ unloading of goods. It is on the basis of the aforesaid testimony and clause in the insurance policy, above noted, that the Tribunal has held the deceased a helper on board the ill-fated Jeep covered by the insurance policy.

¶52

23. In the opinion of this Court, the totality of circumstances noted by the Tribunal are all relevant to conclude indeed that the deceased was working as a helper on board the ill-fated Jeep. This Court thinks that it is equally plausible considering the evidence of the owner, that Pramod Kumar and the deceased were both employed as drivers-cum-helpers to alternate on the wheel. A perusal of the R.C., paper No.16-Ga2 shows that the Jeep was of Mahindra & Mahindra make and the type of the body described is ‘Utility Double Cab’. It is incorrect to say that the vehicle was designed as a goods carrier. A perusal of the R.C. shows in Column No.30 that its seating capacity is described as ‘6’ in all, including the driver. It was obviously a utility vehicle, that was insured as a goods carrier.

¶53

24. A perusal of the insurance policy, paper No. 22-Ga shows that the vehicle was insured with the following description “Private Carrier (Own Goods)”. The inference, therefore, is that, though not essentially a goods carrier, the ill-fated Jeep was insured as one, and that too a private one; not a public goods carrier. A look at the policy further shows that the vehicle had been comprehensively insured. A careful examination of the policy would indicate that there was nothing paid towards liability for the injuries sustained by non-fare paying passengers, but a sum of Rs.90/- had been paid to cover the risk of a person employed in connection with operation, maintenance and uploading of the vehicle. The vehicle being

¶54

¶55

insured as a private goods carrier, payment under the head of a person to assist in the operation of the vehicle and for the purpose of loading and unloading of goods is natural and understandable.

¶56

25. This Court is in agreement with the Tribunal’s understanding about the terms of the policy. The only doubt, as already said, which this Court has, is that the deceased was not a whole time helper, but Pramod Kumar and the deceased were both drivers, who would alternate on the wheel with the other serving as the helper. In either case, the way the Tribunal has understood the deceased’s job or what this Court has made of it, would not matter much so far as the liability of the Insurers and the entitlement of the claimants to be indemnified is concerned. The deceased being at the relevant time working on the Jeep as an extra hand or a helper was certainly covered by the policy. It is, accordingly, held.

¶57

26. This takes us to the other issue about the entitlement of the deceased to compensation. The Tribunal has disbelieved the claimants’ case that the deceased had a monthly income of Rs.3000/-. There is ample evidence on record, including the owner’s acknowledgment that the deceased was a trained driver. The accident happened in the year 2000. About that time, the wages of an unskilled casual labourer were about Rs.100/- per day. With the usual non-working days for a casual labourer, an unskilled casual labourer could easily earn Rs.2500/- a month. Therefore, for a trained driver, who had until one month before the accident been employed admittedly on the ill-fated Jeep as its driver, the monthly income of Rs.3000/is to be readily accepted. The testimony of the owner that he paid the deceased a sum of Rs.1000-1500/-, when the man

¶58

¶59

was working as driver for him, is difficult to accept. The owner after all has spoken not in all candidness about the deceased and his employment with him. For the said reason, the owner’s quantification of the salary paid to the deceased when he had earlier worked for the owner as the Jeep driver cannot be accepted. A driver is a skilled man, who is much in demand. The deceased had a driving licence and there is evidence about his proficiency as a driver. In the opinion of this Court, the claimants’ assertion, that the deceased would earn a sum of Rs.3000/- per month, ought to be accepted. The deceased’s annual income would, therefore, be a sum of Rs.36,000/-.

¶60

27. This Court finds that the multiplier of ‘10’, that the Tribunal has adopted, is one going by the claimants’ age, that is to say, the deceased’s parents. That is an absolutely a flawed approach. The multiplier has to be determined according to the age of the deceased. In this case, the age of the deceased was 23 years. According to the table in Paragraph No.40 of the decision in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 , the deceased would fall in the age bracket of 21-25 years and the appropriate multiplier would be ‘18’. The deceased was admittedly a bachelor at the time of his demise survived by his parents. In accordance with the principle in Sarla Verma ( supra ), 50% in the case of a bachelor is the normal deduction towards personal expenses. There is no case of younger non-earning dependent sisters or brothers to call for a lesser deduction. In this connection the holding in Sarla Verma on the issue may be quoted with profit:

¶61

“ 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of

¶62

¶63

the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as twothird.”

¶64

28. Given the facts found and the law, 50% of the deceased income are to be deducted towards his personal and living expenses.

¶65

29. The next question to be considered is about the future prospects, which have come to be universally accepted after the Constitution Bench decision of the Supreme Court in National Insurance Company v. Pranay Sethi and others, (2017) 16 SCC 680 . The working out of future prospects in the State of Uttar Pradesh is to be made in accordance with Rule 220-A of the U.P. Motor Vehicles Rules, 1998 (for short, 'the Rules of 1998') and not according to the law in Pranay Sethi ( supra ). The principle, that in Uttar Pradesh future prospects are to be determined in accordance with the Rules of 1998, has been laid down by the Supreme Court in New India Assurance Co. Ltd v. Urmila Shukla and others, 2021 SCC OnLine SC 822 . In Urmila Shukla ( supra ), it has been held:

¶66

“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.

¶67

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.

¶68

11. If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay

¶69

¶70

Sethi cannot be taken to have limited the operation of such statutory provision specially when the validity of the Rules was not put under any challenge. The prescription of 15% in cases where the deceased was in the age bracket of 5060 years as stated in Pranay Sethi cannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid.

¶71

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.”

¶72

30. There is this further issue whether Rule 220-A(3) of the Rules of 1998, that was inserted by Notification No. 777/XXX-42011-4(3)-2010 dated September 26, 2011 vide The Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011, would apply retrospectively to an accident that happened much before the amendment. The accident here happened on 14.07.2000. This question was considered by a Division Bench of this Court in Sushil Kumar and others v. M/s. Sampark Lojastic Private Limited and others, 2017 (35) LCD 1311 . In Sushil Kumar ( supra ), it has been held:

¶73

“ 31. Rule 220-A was inserted in the Uttar Pradesh Motor Vehicles Rules, 1998 in view of the various decisions of the law courts for providing benefit on account of future prospects of the injured/deceased. It provides for addition of certain percentage of the income of the injured/deceased in his actual income depending upon the age of the injured/deceased for the purposes of determination of the compensation. The aforesaid Rule came into effect on 26.09.2011 after the decision of the claim petition but before filing of the appeal though the accident took place on 08.05.2010 much before the enforcement of the above Rule.

¶74

32. It is in view of the above that an argument is being raised that Rule 220-A of the Rules

¶75

¶76

which came into effect on 26.09.2011 would not apply to the accident which had taken place on 08.05.2010.

¶77

33 . In Ram Sarup Vs. Munshi AIR 1963 SC 553 it was laid down that a change in law during the pendency of an appeal has to be taken into account and will cover the rights of the parties.

¶78

34. The view expressed above was followed by the Supreme Court in Mula Vs. Godhu AIR 1971 SC 89.

¶79

35. In Dayawati Vs. Inderjit AIR 1966 SC 1423 the court had observed as under:-If the new law speaks in language, which expressly or by clear intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance.

¶80

36. In Amarjit Kaur Vs. Pritam Singh AIR 1974 SC 2068 effect was given to the change in law during the pendency of an appeal as the hearing of an appeal under the procedural law of this country is in the nature of rehearing of the suit by superior court.

¶81

37. It was in the light of the above decisions that in Lakshmi Narayan Guin and others Vs. Niranjan Modak AIR 1985 SC 111 it was held that a change in law during the pendency of an appeal has to be taken into account and will cover the right of the parties.

¶82

38. The aforesaid decision was followed by a Division Bench of this court in U.P. State Road Transport Corporation Vs. Smt. Madhu Sharma and others, 2003 (4) AWC 2620 which was a case in relation to the provisions of the Motor Vehicles Act and it was observed that it is apparent that the change in law during the pendency of the original proceedings has to be taken into account so as to cover the rights of the parties.

¶83

39. In view of above decision the view expressed by the Division Bench of this court in ICICI Lombard (Supra) is not of good law as it does not takes into account the decisions referred to above in holding that the Rule 220-A of the Rules which came into effect on 26.09.2011 would not apply to the accident that took place prior to the said date only for the reason that the

¶84

¶85

Rule was not specifically stated to be retrospective in nature.”

¶86

31. Assuming that the deceased had a monthly income of Rs.3000/-, the claimants are entitled to add 50% towards future prospects given the fact that the deceased was below 40 years.

¶87

32. Now, the next issue to be considered is the claimants’ entitlement under the conventional heads. The Constitution Bench in Pranay Seth has laid down far reaching rules on the issue, which are required to be quoted. In Pranay Sethi , it has been held:

¶88

“ 48. This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by the Court in Trilok Chandra [ UP SRTC v. Trilok Chandra , (1996) 4 SCC 362] . Recently, in Puttamma v. K.L. Narayana Reddy [ Puttamma v. K.L. Narayana Reddy , (2013) 15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3 SCC (Cri) 574] it has been reiterated by stating : (SCC p. 80, para 54)

¶89

“ 54 . … we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy.”

¶90

49. As far as multiplier or multiplicand is concerned, the same has been put to rest by the judgments of this Court. Para 3 of the Second Schedule also provides for general damages in case of death. It is as follows:

¶91

“ 3. General damages (in case of death):

¶92

The following general damages shall be payable in addition to compensation outlined above:

¶93

(i)	Funeral expenses	Rs	2000
(ii)	Loss of consortium, if	Rs	5000
	beneficiary is the spouse
(iii)	Loss of estate	Rs	2500
(iv)	Medical expenses — actual	Rs 15,	000”
	expenses incurred before
	death supported by
	bills/vouchers but not

¶94

¶95

exceeding

¶96

50. On a perusal of various decisions of this Court, it is manifest that the Second Schedule has not been followed starting from the decision in Trilok Chandra [ UP SRTC v. Trilok Chandra , (1996) 4 SCC 362] and there has been no amendment to the same. The conventional damage amount needs to be appositely determined. As we notice, in different cases different amounts have been granted. A sum of Rs 1,00,000 was granted towards consortium in Rajesh [ Rajesh v. Rajbir Singh , (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . The justification for grant of consortium, as we find from Rajesh [ Rajesh v. Rajbir Singh , (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] , is founded on the observation as we have reproduced hereinbefore.

¶97

51. On the aforesaid basis, the Court has revisited the practice of awarding compensation under conventional heads.

¶98

52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh [ Rajesh v. Rajbir Singh , (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . It has granted Rs 25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh [ Rajesh v. Rajbir Singh , (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] refers to Santosh Devi [ Santosh Devi v. National Insurance Co. Ltd. , (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] , it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the

¶99

¶100

orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be factcentric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.”

¶101

(emphasis by Court)

¶102

33. About the issue of entitlement to consortium, the Supreme had occasion to consider it in Magma General Insurance Company Ltd. v. Nanu Ram alias Chuhru Ram and others, (2018) 18 SCC 130 . In Magma General Insurance Company Ltd. ( supra ), it was held:

¶103

“ 21. A Constitution Bench of this Court in Pranay Sethi [ National Insurance Co. Ltd. v. Pranay Sethi , (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, “consortium” is a compendious term which encompasses “spousal consortium”, “parental consortium”, and “filial consortium”. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse : [ Rajesh v. Rajbir Singh , (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149]

¶104

21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husbandwife which allows compensation to the surviving spouse for loss of “company, society, cooperation, affection, and aid of the other in every conjugal relation”. [ Black's Law Dictionary (5th Edn., 1979).]

¶105

¶106

21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”.

¶107

21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

¶108

(emphasis by Court)

¶109

34. In the result, the appeal preferred by the Insurers is dismissed . The oral cross-objections by the claimants are accepted and the award revised in the following manner:

¶110

(i)	Monthly Income (of the deceased)	=	3000
(ii)	Monthly Income+Future Prospects
	(monthly income x 50%) =
	3000+1500	=	4500
(iii)	Annual Income (of the deceased) = 4500x12	=	54000
(iv)	Annual Dependency = Annual
	Income – 50% deduction towards personal expenses of the deceased = 54000-27000	=	27000
(v)	Total Dependency = Annual Dependency x Applied Multiplier = 27000x18	=	486000
(vi)	Claimant’s entitlement towards
	conventional heads = Loss of Estate + Funeral Expenses + dependents’ Consortium =15000+15000+40000x2	=	110000
The	total compensation would
ther	efore, work out to a figure of Rs.
4,86	,000+1,10,000	=	5,96,000

¶111

35. The impugned award passed by the Tribunal is modified and the compensation awarded enhanced to Rs.5,96,000/- . The aforesaid sum of money shall carry simple interest at the

¶112

¶113

rate of 7% per annum from the date of institution of the claim petition, until realization. Any sum of money already deposited with the Tribunal by the Insurers or paid to the claimants, pursuant to the impugned award or the interim orders, if any, passed by this Court, shall be adjusted. The other directions made by the Tribunal in the award shall remain intact. Costs easy.

¶114

36. It is ordered accordingly.

¶115

Order Date :- 20.4.2023 Anoop

¶116

Digitally signed by :- ANOOP KUMAR SINGH High Court of Judicature at Allahabad

New India Assurance Co. Ltd. v. Laxmi Narayan and Others

Case brief

What is this about?

What did the court decide?

New India Assurance Co. Ltd. v. Laxmi Narayan and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Zia Ur Rehman Vs State of U.P. and Another

Dinesh Pal Alias Dinesh Kumar Pal Vs State of U.P. and Another

Shiv Chandar and 4 Others Vs State of U.P. and Another

Ramit Jain and 3 Others Vs State of U.P. and Another

Arun and 2 Others Vs State of U.P. and Another

Virendra Singh and 3 Others Vs State of U.P. and Another