Partly allowed

National Insurance Company Ltd. v. Sri Bhoora Kha and Others

Allahabad HC20 Sept 2023FAFO/841/2000

Case brief

AI extract

What is this about?

The High Court addressed batch appeals regarding a motor accident involving a goods vehicle carrying gratuitous passengers. The Court held that while insurers are not liable for such passengers as a matter of right post-Asha Rani, the 'pay and recover' doctrine applies to pre-watershed cases, requiring insurers to pay first then recover from the owner. The Court also enhanced compensation quantum

What did the court decide?

Insurers directed to pay compensation in the first instance and recover from the vehicle owner; compensation awarded to claimants enhanced based on corrected calculations of dependency, future prospec

National Insurance Company Ltd. Vs Sri Bhoora Kha… — Motor Accident Claims | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:192278

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Court No. - 33

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Reserved A.F.R.

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Case :- FIRST APPEAL FROM ORDER No. - 841 of 2000

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Appellant :- National Insurance Company Ltd. Respondent :- Sri Bhoora Kha And Others Counsel for Appellant :- Amit Manohar Counsel for Respondent :- Amit Kumar Singh,Ram Singh, Vennet Singh

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With

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Case :- FIRST APPEAL FROM ORDER No. - 842 of 2000

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Appellant :- National Insurance Company Ltd. Respondent :- Sri Ash Mohammad @ Asi Mohammad And Others

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Counsel for Respondent :- Amit Kumar Singh,Ram Singh

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With

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Case :- FIRST APPEAL FROM ORDER No. - 843 of 2000

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Appellant :- National Insurance Company Ltd. Respondent :- Smt. Farukh Sultana And Others Counsel for Appellant :- Amit Manohar Counsel for Respondent :- Amit Kumar Singh,Ram Singh

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With

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Case :- FIRST APPEAL FROM ORDER No. - 844 of 2000

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Appellant :- National Insurance Company Ltd. Respondent :- Smt. Nazeeran And Others Counsel for Appellant :- Amit Manohar Counsel for Respondent :- Amit Kumar Singh,Ram Singh

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With

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Case :- FIRST APPEAL FROM ORDER No. - 845 of 2000

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Appellant :- National Insurance Company Ltd. Respondent :- Smt. Asit Ullah Khan And Others Counsel for Respondent :- Amit Kumar Singh,Ram Singh

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With

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Case :- FIRST APPEAL FROM ORDER No. - 1641 of 2000

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Appellant :- Bhura Khan Respondent :- Prakash Chandra And Others

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With

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Case :- FIRST APPEAL FROM ORDER No. - 1642 of 2000

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Appellant :- Aas Mohammad Alias Asi Mohammad And Others Respondent :- Prakash Chandra And Others Counsel for Appellant :- Amit Kumar Singh,Ram Singh Counsel for Respondent :- Amit Manohar

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With

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Case :- FIRST APPEAL FROM ORDER No. - 1640 of 2000

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Appellant :- Smt. Farakh Sultana Respondent :- Prakash Chandra And Others Counsel for Appellant :- Amit Kumar Singh,Ram Singh Counsel for Respondent :- Amit Manohar

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With

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Case :- FIRST APPEAL FROM ORDER No. - 1264 of 2000

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Appellant :- Smt. Nazeeran And Others Respondent :- Prakash Chandra And Others Counsel for Appellant :- Amit Kumar Singh,Ram Singh Counsel for Respondent :- Amit Manohar

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With

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Case :- FIRST APPEAL FROM ORDER No. - 1638 of 2000

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Appellant :- Asitullah Khan Respondent :- Prakash Chandra And Others Counsel for Appellant :- Amit Kumar Singh,Ram Singh Counsel for Respondent :- Amit Manohar

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Hon'ble J.J. Munir,J.

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1. This is a batch of ten appeals arising out of a common judgment and award of Mr. Naresh Chandra Dubey, the then Motor Accident Claims Tribunal/ 6^th Additional District Judge, Aligarh, dated 26.02.2000, partly allowing five claim petitions. One set of appeals has been preferred by the Insurance

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Company, who have been held liable to indemnify, whereas the other set is by the claimants, who think that they have been inadequately compensated. There are, thus, five appeals by the Insurance Company and five by the claimants.

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2. FAFO Nos.841 of 2000, 842 of 2000, 843 of 2000, 844 of 2000 and 845 of 2000 have been preferred by the Insurance Company, whereas FAFO Nos.1264 of 2000, 1638 of 2000, 1640 of 2000, 1642 of 2000 and 1641 of 2000 have all been preferred by the claimants, seeking enhancement of the compensation awarded. Since all the ten appeals relate to the same motor accident, giving rise to common questions of fact and law, except some difference in entitlement, based on facts in case of the claimants' appeals, this Court proposes to decide all the appeals by this common judgment.

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3. For the sake of convenience, FAFO No.841 of 2000 shall be treated as the leading case and facts, that are common, noticed from the records of the said case. In case of the claimants' appeals, dealt with in this judgment after the Insurance Company's appeals, facts individual to each case for enhancement, would be separately noticed.

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The Accident

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4. On the 18^th of June, 1993, Nusarat Khan, Smt. Raisan, Abdul Latif, Bhura Khan son of the late Aziz Ullah and Bhura Khan son of the late Bashir Khan, all residents of Village Tikta, Police Station Barla, District Aligarh, were members of a bridal party ( Barat ), proceeding to attend the wedding of a certain Abdul Sattar son of Abdul Zabbar. They had with them some necessaries relating to the wedding and were in the company of other members of the bridal party, proceeding to destination on board a Swaraj Mazda Truck, bearing Registration No. UP-81B-

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The driver of the Swaraj Mazda Truck, which has quaintly been described by the learned Judge in the Tribunal as a 'Matador Swaraj Mazda', is said to have been driven at an uncontrolled speed. The driver was cautioned by those on board not to do so, but he did not heed. As the vehicle reached Village Shafipur, within the local limits of Police Station Palimukimpur, District Aligarh, the driver lost control, leading the vehicle to turn turtle. In consequence of this accident, some passengers on board died on the spot whereas others were grievously injured.

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The Claim Petitions

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5. Five claim petitions were instituted before the Motor Accident Claims Tribunal, Aligarh, to wit, the District Judge, Aligarh. These are: MACP No.25 of 1994, Asit Ullah Khan vs. Prakash Chandra and another; MACP No.26 of 1994, Ash Mohammad @ Asi Mohammad vs. Prakash Chandra and another; MACP No.31 of 1994, Bhura Khan vs. Prakash Chandra and another; MACP No.33 of 1994, Farakh Sultana vs. Prakash Chandra and another; and, MACP No.34 of 1994, Smt. Nazeeran vs. Prakash Chandra and another. All the claim petitions were assigned to the 6^th Additional District Judge, Aligarh, sitting as the Tribunal, who vide order dated 26.07.1995 directed all the petitions to be consolidated and heard together, with MACP No. 25 of 1994 as the leading case. Evidence was recorded in the leading case alone.

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6. MACP No.25 of 1994 is a case of fatal accident, where the victim Nusarat Khan son of Asit Ullah Khan died. Compensation was claimed by his heirs and LRs, numbering four. Since this is the leading case and the Tribunal has noticed facts and acted on pleadings in this claim petition, besides

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recording the evidence here, a greater detail of facts and proceedings relating to it, will be mentioned shortly. The deceased here was a young man of 18 years and a student, who was also engaged in dairy business. The claimants asserted an income of Rs.2000/- per month for him and claimed a total compensation of Rs.8,50,000/-.

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7. MACP No.26 of 1994 is again a case of fatal accident. The deceased is one Smt. Raisan. Her heirs and LRs, who are her husband, sons and daughters, numbering a total of seven, asserted that she was a housewife and also did work at home, undertaking tailoring and sewing jobs. She would earn Rs.1500/- a month. The heirs and LRs, therefore, claimed a total compensation of Rs.3,50,000/-.

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8. MACP No.31 of 1994 is an injury case, where the victim Bhura Khan son of Aziz Ullah was a boy of 16 years, when he met with the accident. He sustained grievous injuries, which entailed immediate medical expenses to the tune of Rs.25,000/-. His treatment was still going on, when the claim petition was instituted. The claimant demanded a total compensation in the sum of Rs.6,45,000/-.

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9. MACP No.33 of 1994 is a case of fatality, where the deceased was one Abdul Latif, a man aged about 42 years. The deceased is claimed to have had a monthly income of Rs.3000/- from farming. The claim petition has been preferred by his widow, Smt. Farakh Sultana, Chhotey, his brother and a nephew. The claimants sought a total compensation in the sum of Rs.5,50,000/-.

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10. MACP No.34 of 1994 is also a case of fatility. The deceased here is Bhura Khan son of the late Bashir Khan. The claim petition in this case was instituted by his mother, Smt.

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Nazeeran, besides four of his brothers and two sisters, said to be his dependents. Among them, two brothers and two sisters were minors and have moved through the deceased's mother, Nazeeran as the minor claimants' next friend. The deceased was aged 18 years and is said to have had an income of Rs.3000/- per month, earned by from offering private tuitions to Class-X students. A total compensation in the sum of Rs.8,25,000/- was sought.

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Proceedings and Judgment of the Tribunal

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11. The Tribunal has proceeded to notice facts from the leading case. The pleadings of parties have been noticed in the leading case with remarks to the effect that in the connected matters, opposite parties, who are the same, have raised similar pleas. In the leading case, opposite party No.1 is Prakash Chandra, the owner of the offending vehicle; opposite party No.2 is Dinesh, the driver of the offending vehicle and opposite party No.3 is the National Insurance Company Ltd., Bulandshahr through the Divisional Manager at Aligarh, who are the insurers of the offending truck. In the other four claim petitions, the opposite parties are arrayed in identical profile.

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12. In the leading case, two written statements have been filed, one on behalf of the driver, Dinesh and the other on behalf of the National Insurance Company Ltd., who shall hereinafter be called 'the Insurers'. Dinesh will hereinafter be referred to as 'the driver' and Prakash Chandra as 'the owner'.

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13. In his written statement, the driver has generally denied the claimants' case, but averred that it is admitted that on 18.06.1993, the offending vehicle was hired to carry some luggage, ornaments, boxes, dala etc. to present to the bridegroom at Atrauli, and, also, ferry articles of dowry from the

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bridegroom's house to the bride's house at Village Tikta. It is also averred that about ten persons were asked to sit and look after the said movables. It is next admitted in the written statement that the vehicle's brakes failed, on account of which, it turned turtle near Village Shafipur, resulting in the death of four, including the claimant's son and injuries to six others, who were on board the vehicle. There is also an averment in the written statement that the ill-fated vehicle was duly insured with the Insurers on the date of the accident vide Policy No. 0562110, valid from 23.04.1993 to 22.04.1994. The plea is that compensation awarded, if any, would have to be borne by the Insurers.

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14. The other written statement is the one on behalf of the Insurers. There is a general denial of all that is alleged in the claim petition with detailed defences being raised by the Insurers in their additional pleas. It is averred that no cause of action has arisen to the claimants to institute the petition. The claim petition is said to be not maintainable as it is in contravention of the provisions of the Motor Vehicles Act, as well as the law of torts. There is a specific plea raised to the effect that the Swaraj Mazda Truck/ vehicle was carrying the bridal party with consent of the owner of the goods. The Insurers would not be liable. It is more particularly averred that the bridal party, travelling in the truck, are not covered under the contract of insurance and, therefore, the Insurers are not liable to indemnify the owner of the vehicle. It is next pleaded on behalf of the Insurers that there was a specific condition in the policy stipulating that the insured is not indemnified if the vehicle is used or driven otherwise than for carrying goods. The policy does not cover use of the vehicle for carriage of passengers. The Insurers pleaded that they are not liable with

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regard to third-party risk in view of the provisions contained in sub-Section (2) of Section 95 (new Section 148) of the Motor Vehicles Act. It is also averred that it was the insured's fault that he allowed the driver to carry a bridal party in a truck. The Insurers claimed protection of the provisions of Sections 147, 148 and 149 of the Motor Vehicles Act, 1988 (for short, 'the Act of 1988') and conditions of the policy.

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15. On the pleadings of parties, the following issues were framed by the Tribunal in the leading petition (translated into English from Hindi):

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“(1) Whether the accident occurred due to the mini-truck bearing Registration No. UP-81B-5068 being driven at a high speed and negligently?

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(2) Whether the deceased was unlawfully travelling in the truck? If yes, its effect?

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(3) Whether the aforesaid vehicle had contracted separately with the Insurance Company to ferry passengers?

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(4) Whether the aforesaid vehicle was being driven without a valid permit and without a valid licence held by the driver?

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(5) Whether the claimants are entitled to receive any compensation? If yes, how much and from which party?”

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16. In the leading petition, the testimony of all witnesses for the claimants, in the various claim petitions, was recorded. The claimants examined Ummed Hasan, Nazreen, Ash Mohammad, Smt. Farakh Sultana, Asit Ullah and Bhura Khan, besides Abdul Sattar as witnesses and produced in their documentary evidence certified copies of the First Information Report, charge-sheet, site plan, a copy of the postmortem report relating to the deceased Bhura. Apart from these documents, a certificate from the Gaon Sabha, Tikta was produced, but it was not proved by any one. On behalf of the claimants, an affidavit

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of Asit Ullah was filed, annexing therewith a copy of the offending vehicle's registration certificate, fitness certificate, tax certificate, permit, the contract relating to the vehicle's lease, the insurance cover note, all of which were photostat copies. The claimants further filed through another list, a photostat copy the driver's driving licence. Since evidence was recorded in the leading petition alone, this Court assumes that this was all that was for evidence produced by the claimants in all the petitions before the Tribunal.

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17. The Tribunal took up Issues Nos.1 and 2 together. A reading of the findings on Issues Nos.1 and 2 reveals that the cases of parties involved in all the claim petitions were considered in terms of the said issues on the evidence that was before the Court. The Tribunal has remarked that in the leading petition, the driver in his written statement has admitted the fact that the truck was booked for carrying goods for hire and ten persons had boarded it. The truck turned turtle near Village Shafipur on account of brake failure. In consequence, the son of the claimant in the leading petition died, besides three other persons and six others received injuries. The Tribunal has gone on to notice the admission of fatality or injury in the connected claim petitions by the driver. From the admission of the said fact in the written statements filed in the leading petitions and the connected matters, the Tribunal has concluded on Issue No.2 that the deceased and the injured were all passengers on board the mini-truck involved in the accident, and, further, that the persons concerned died or received injuries on account of the mini-truck turning turtle.

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18. The Tribunal has remarked that since the driver has admitted the factum of accident and the passengers on board, the victims of the motor accident, suffering fatal consequences

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or injuries in the accident, involving the mini-truck, these are established. The issue, if the accident happened on account of the driver's negligence, has been examined by the Tribunal with an opening observation that the driver has not examined himself as a witness. To the contrary, PW-1 Ummed Hasan has said that he had gone to watch the Barat on the wedding of his uncle ( Mama ), when on way, he saw the mini-truck, bearing Registration No. UP-81B-5068, driven at a high speed, swerving from one side to the other. The witness has said that moving in this uncontrolled fashion, the truck turned turtle. PW6, Bhura Khan has said that he was travelling on board truck with goods that the bridal party had to carry. He has testified that the accident happened because of the driver's negligence and the high speed that he was driving the vehicle.

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19. It is also remarked by the Tribunal that the witnesses’ contention is corroborated by the First Information Report and the site-plan. There is no evidence offered by the opposite parties to rebut the claimants' testimony. The Tribunal has held that in the absence of any evidence to rebut, what the claimants have said on affidavit, their testimony has to be accepted as reliable. The Tribunal, therefore, concluded that the accident happened on account of rash and negligent driving by the driver of mini-truck bearing Registration No. UP-81B-5068. Issue No.1 was, therefore, answered in the affirmative.

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20. The Tribunal has very briefly dealt with Issue No.2 and remarked that the driver has admitted the fact that he was carrying goods which he had accepted for hire. The ten persons, that he was carrying on board truck, were there to take care of goods that he was ferrying. It is observed by the Tribunal that in the written statement there is no averment to the effect that the driver had declined the ten persons to board

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the truck, which leads to the conclusion that the passengers were travelling with the driver's permission. The Tribunal has then concluded from the said fact that the passengers cannot be regarded as unauthorized travellers on board truck. Issue No.2 has, accordingly, been answered in the negative.

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21. So far as Issue No.3 is concerned, the Tribunal has answered it with remarks to the effect that it had already been held while deciding Issue No.2 that the deceased and the injured were travelling on board truck with the driver's consent. The learned Judge in the Tribunal has then referred to a decision of the Madhya Pradesh High Court mentioning its citation alone as 1998 ACJ 880 . It is observed that in the said decision, it has been laid down that where in a goods vehicle, twelve passengers were travelling with the driver's permission, the Insurance Company would not be liable to compensate. It is then said that the aforesaid law has been laid down in the context of the Motor Vehicles Act, 1939. The learned Judge has gone on to notice the decision of the Supreme Court in New India Assurance Company v. Satpal Singh and others, (2000) 1 SCC 237 , where it is noted that their Lordships have held that under Section 147 of the Act of 1988, the obligation to compensate a third party is on the Insurance Company, irrespective of the fact whether the passenger travelling is doing so validly or not. The Tribunal has observed that the fact that the vehicle is of what kind or type has little bearing on the liability of the party obliged to compensate. The Tribunal has, therefore, held that irrespective of the issue whether the vehicle was a goods vehicles and the passengers gratuitous or otherwise, the liability would fasten upon the insurers to compensate. Issue No.3 was decided accordingly.

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22. The Tribunal has proceeded to decide what compensation would be payable to the claimants in each of the claim petitions, commencing with the leading petition. In the leading petition, a total compensation of Rs.1,12,000/- was awarded, whereas in MACP No.26 of 1994, compensation awarded was Rs.1,17,000/-. In MACP No.33 of 1994, Rs.1,21,000/- were awarded whereas in MACP No.34 of 1994, the total compensation awarded is Rs.1,06,000/-. So far as MACP No.31 of 1994 is concerned, which is an injury case, the total compensation awarded was Rs.40,000/-. The Tribunal ordered that the compensation payable in each of the motor accident claims petitions would be paid by the Insurers from the date of the institution of the claim petition until realization, together with 12% simple interest annually.

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The Hearing before this Court

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23. Heard Mr. Amit Manohar, learned Counsel for the Insurers in support of FAFO Nos.841 of 2000, 842 of 2000, 843 of 2000, 844 of 2000 and 845 of 2000 whereas Mr. Amit Kumar Singh, Advocate holding brief of Mr. Ram Singh, learned Counsel has been heard in each of these appeals on behalf of the claimants. No one has appeared on behalf of the owner and the driver.

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24. Mr. Amit Kumar Singh, Advocate holding brief of Mr. Ram Singh, learned Counsel for the claimants has been heard in support of FAFO Nos.1264 of 2000, 1638 of 2000, 1640 of 2000, 1641 of 2000 and 1642 of 2000 whereas Mr. Amit Manohar, learned Counsel has been heard on behalf of the Insurers in each of these appeals. No one has appeared on behalf of the owner and the driver.

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The Appeals by the Insurers

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25. The Insurers have come up through their appeals, assailing the impugned judgment and the award passed by the Tribunal, saying that they are not liable to pay the compensation awarded. The question to be answered for the purpose of deciding the Insurers' appeals is whether the passengers on board a goods vehicle, if they suffer death or bodily injury in consequence of an accident, are entitled to compensation from the insurers of the goods vehicle ? In this case, there is hardly any cavil on facts. The passengers were travelling on board a goods vehicle, a Swaraj Mazda MiniTruck, bearing Registration No. UP-81B-5068, which was hired to carry goods along with the bridal party. The deceased and the injured, for whose loss of life or injury these claims have been brought, boarded the mini-truck to travel to the wedding destination. They were part of the bridal party. It is also not in dispute that on way, the mini-truck turned turtle, leading to death of four of the victims and one sustaining grievous injury. There is also no issue between parties about the fact that the victims boarded the ill-fated truck with the driver's consent. The Insurers say that they are not liable to compensate the dependents of the deceased victims or the injured, because they were travelling in a goods vehicle and the insurance policy does not cover their risk at all. It is the Insurers' case that payment of compensation to these victims would be the owner's liability; not the Insurers’. The learned Judge in the Tribunal has rejected the aforesaid submission of the Insurers relying on the decision of the Supreme Court in Satpal Singh ( supra ). In Satpal Singh , it has been held:

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“ 11. The result is that under the new Act an insurance policy covering third-party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Hence the decisions rendered under

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the old Act vis-à-vis gratuitous passengers are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force.”

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26. This Court must remark that at the time the impugned judgment was rendered, the learned Judge in the Tribunal may not have been very wrong, going by the position of the law as it then stood. It was a time when the law laid down by the Supreme Court in Satpal Singh was Authority. Later on, a three Judge Bench of the Supreme Court in New India Assurance Co. Ltd. v. Asha Rani and others, (2003) 2 SCC 223 overruled Satpal Singh on the point that passengers on board a goods vehicles – even the owner of the goods or his authorized representative, would not make the Insurance Company liable for any bodily injury or compensation for death, if the accident happened prior to the Motor Vehicles (Amendment) Act, 1994. Any other kind of passenger a fortiori would never be entitled to claim compensation payable by the Insurer, if travelling as a passenger on a goods vehicle, whether before the 1994 Amendment or afterwards. It is not so much the point involved in this case whether the accident happened before the 1994 Amendment to the Act of 1998, but the fact is that the accident in this case did happen after the Act of 1988 came into force and before it was amended by the Act of 1994, that is to say, the accident happened on 18.06.1993.

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27. Here, the injured victims as well as those who died were travelling on board the mini-truck, a goods vehicle, who do not fall in the category of the owner of the goods or his authorized representative in the sense it is understood under Section 147(1)(b)(i) of the Act of 1988, as amended by the Amendment Act of 1994. It would be profitable to refer to the holding of their

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Lordships in Asha Rani ( supra ). The majority judgment was delivered by G.B. Pattanaik, C.J., who held:

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“ 9. In Satpal case [ New India Assurance Co. v. Satpal Singh , (2000) 1 SCC 237 : 2000 SCC (Cri) 130] the Court assumed that the provisions of Section 95(1) of the Motor Vehicles Act, 1939 are identical with Section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amendment Act of 1994 is examined, particularly Section 46, by which the expression “injury to any person” in the original Act stood substituted by the expression “injury to any person including owner of the goods or his authorised representative carried in the vehicle”, the conclusion is irresistible that prior to the aforesaid Amendment Act of 1994, even if the widest interpretation is given to the expression “to any person” it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of clause 46 also state that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the insurance policy. It is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression “including owner of the goods or his authorised representative carried in the vehicle” which was added to the pre-existing expression “injury to any person” is either clarificatory or amplification of the pre-existing statute. On the other hand it clearly demonstrates that the

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legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. The judgment of this Court in Satpal case [ New India Assurance Co. v. Satpal Singh , (2000) 1 SCC 237 : 2000 SCC (Cri) 130] therefore must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of the goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers any bodily injury.”

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28. In his supplementing opinion, his Lordship S.B. Sinha, J. held:

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“ 23. The applicability of the decision of this Court in Mallawwa v. Oriental Insurance Co. Ltd. [(1999) 1 SCC 403 : 1999 SCC (Cri) 58] in this case must be considered keeping that aspect in view. Section 2(35) of the 1988 Act does not include passengers in goods carriage whereas Section 2(25) of the 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of “goods vehicle” in the 1939 Act and “goods carriage” in the 1988 Act is significant. By reason of the change in the definitions of the terminology, the legislature intended that a goods vehicle could not carry any passenger, as the words “in addition to passengers” occurring in the definition of goods vehicle in the 1939 Act were omitted. Furthermore, it categorically states that “goods carriage” would mean a motor vehicle constructed or adapted for use “ solely for the carriage of goods”. Carrying of passengers in a “goods carriage”, thus, is not contemplated under the 1988 Act.

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24. We have further noticed that Section 147 of the 1988 Act prescribing the requirements of an insurance policy does not contain a provision similar to clause ( ii ) of the proviso appended to Section 95 of the 1939 Act. The decision of this Court in Mallawwa case [(1999) 1 SCC 403 : 1999

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SCC (Cri) 58] must be held to have been rendered having regard to the aforementioned provisions.

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25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of “public service vehicle”. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a “goods carriage”.

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26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words “any person” must also be attributed having regard to the context in which they have been used i.e. “a third party”. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.

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27. Furthermore, sub-clause ( i ) of clause ( b ) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas subclause ( ii ) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.”

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29. The question next fell for consideration before a three Judge Bench of their Lordships of the Supreme Court in National Insurance Co. Ltd. v. Baljit Kaur and others, (2004) 2 SCC 1 . In Baljit Kaur ( supra ), the most important principle, that was laid down, is about the liability of the insurer to pay in the first instance, and then recover from the owner, in cases of passengers travelling on board goods vehicles, suffering injury or death, by reason of negligence. The principle was evolved apparently because Satpal Singh had been the law for a long

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time and the Tribunals and the High Courts had held insurers liable for injuries or death suffered by passengers travelling on goods vehicles, until time that Asha Rani came to change the legal perspective altogether. Baljit Kaur , therefore, laid down another principle along side the principle of pay and recover for the insurer in the same proceedings, and that was that the owner’s liability to satisfy the award in case of carriage of gratuitous passengers on board goods vehicles would be the law applicable prospectively. In other words, the law that the insurer would no longer be liable for injuries or death sustained by passengers or gratuitous passengers on board goods vehicles, would be applicable in those cases that were decided after Asha Rani . In Baljit Kaur , it was laid down:

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“ 20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people.

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21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh [(2000) 1 SCC 237 : 2000 SCC (Cri) 130] . The said decision has been overruled only in Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] . We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to

¶115

¶116

satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding.”

¶117

(emphasis by Court)

¶118

30. Before the Full Bench of the Madras High Court in Branch Manager, United India Insurance Co. Ltd., Branch Office, Nethaji Bye Pass Road, Dharmapuri Town v. Nagammal and others, 2008 SCC OnLine Mad 973 , the question that came up for consideration is set out in Paragraph No.2 of the report, which reads:

¶119

“2. The precise question to be answered is whether the Insurer can be directed to pay compensation to the claimant in a case where the deceased and/or the injured was travelling as a gratuitous passenger in a goods vehicle and recover the same thereafter from the owner of such goods vehicle.”

¶120

31. In Nagammal ( supra ), speaking for the Full Bench, P.K. Misra, J. observed and summarized the principles to be applied in the transition between Satpal Singh and Asha Rani thus:

¶121

“30. From a conspectus of the decisions, thus analysed, it is now apparent that before Asha Rani's case was decided, the decision in Satpal Singh's case was holding the field and such latter decision was overruled only in Asha

¶122

¶123

Rani's case . Under such peculiar circumstances in Baljit Kaur's case it was observed, that even though the Insurance Company was not liable to pay the compensation in respect of a passenger in a goods vehicle, yet since the law was not clear before Asha Rani's case was decided, the doctrine of prospective overruling was applied and a direction was issued in the interest of justice directing the Insurance Company to satisfy the award and recover the same from the owner of the vehicle. In other words, even though the statutory provision under Section 149(4) and Section 149(5) was not applicable, the Supreme Court applied the Doctrine of “pay and recover”. The ratio of the said decision has been applied selectively in some of the later decisions and in some of the subsequent decisions, the doctrine of “pay and recover” in respect of matters which are not strictly covered under Sections 149(4) and 149(5) has not been applied by the Supreme Court depending upon the facts and circumstances of a particular case.

¶124

Therefore, it cannot be said as an inexorable principle of law that in each case where the liability is in respect of a passenger in a goods vehicle, which is not required to be covered under Section 147 of the Act, the Insurance Company would be directed to first pay the amount and thereafter recover the same from the owner and such discretion is obviously with the Court either to apply such principle or not.

¶125

31. Thus from an analysis of the statutory provisions as explained by the Supreme Court in various decisions rendered from time to time, the following picture emerges:

¶126

(i) The Insurance Policy is required to cover the liability envisaged under Section 147, but wider risk can always be undertaken.

¶127

(ii) Section 149 envisages the defences which are open to the Insurance Company. Where the Insurance Company is not successful in its defence, obviously it is required to satisfy the decree and the award. Where it is successful in its defence, it may yet be required to pay the amount to the claimant and thereafter recover the same from the owner under such circumstance envisaged and enumerated in Section 149(4) and Section 149(5).

¶128

(iii) Under Section 147 the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle

¶129

¶130

unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle.

¶131

(iv) Since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of “pay and recover”, as statutorily recognised in Section 149(4) and Section 149(5), is not applicable ipso facto to such cases and, therefore, ordinarily the Court is not expected to issue such a direction to the Insurance Company to pay to the claimant and thereafter recover from the owner.

¶132

(v) Where, by relying upon the decision of the Supreme Court in Satpal Singh's case , either expressly or even by implication, there has been a direction by the Trial Court to the Insurance Company to pay, the Appellate Court is obviously required to consider as to whether such direction should be set aside in its entirety and the liability should be fastened only on the driver and the owner or whether the Insurance Company should be directed to comply with the direction regarding payment to the claimant and recover thereafter from the owner.

¶133

(vi) No such direction can be issued by any Trial Court to the Insurance Company to pay and recover relating to liability in respect of a passenger travelling in a goods vehicle after the decision in Baljit Kaur's case merely because the date of accident was before such decision. The date of the accident is immaterial. Since the law has been specifically clarified, no Trial Court is expected to decide contrary to such decision.

¶134

(vii) Where, however, the matter has already been decided by the Trial Court before the decision in Baljit Kaur's case , it would be in the discretion of the Appellate Court, depending upon the facts and circumstances of the case, whether the doctrine of “pay and recover” should be applied or as to whether the claimant would be left to recover the amount from the person liable i.e., the driver or the owner, as the case may be.”

¶135

(emphasis by Court)

¶136

32. The present case was decided by the Tribunal on 26.02.2000, when Satpal Singh was authority. It was overruled in Asha Rani on 3^rd December, 2002. It is for the said reason that the Tribunal opined that it is the Insurers, who would be

¶137

¶138

liable to pay, though the injured and the deceased were travelling on board a goods vehicle, the mini-truck. There is little doubt that the principle in Asha Rani , that has excluded all liability for the insurer in respect of passengers travelling on board goods vehicles, particularly, gratuitous passengers, may still be applied ameliorating the rigor of the rule by invoking ‘the pay and recover principle’ applicable to cases that fall in the watershed. The watershed between Satpal Singh and Asha Rani would be cases decided by the Tribunal or this Court during time when the law in Satpal Singh held field. This is precisely the case here. And, this is also the principle laid down by their Lordships of the Full Bench of the Madras High Court in Nagammal .

¶139

33. In this case, therefore, the direction to the Insurers to pay the adjudged compensation in each of the claim petitions to the claimants ought to be modified and substituted by a direction to the Insurers to pay the claimants in the first instance and recover from the owner in the present proceedings through a miscellaneous application, without the necessity of bringing an independent suit or action.

¶140

The Claimants’ Appeals

¶141

34. The claimants' appeals may now be considered. It would be apposite to briefly deal with each appeal with reference to the issue of quantum alone. After all, the claimants’ appeals are ones that seek enhancement and are all about the quantum of compensation payable, be it by the owner, the driver or the Insurers. For the sake of brevity, there would be no detailed reference to the facts of each case now. This is, particularly so, because the deceased or the injured in each of the appeals were passengers on board the same vehicle and suffered injury

¶142

¶143

or death in the same accident, a detailed account of which has already been given in the opening part of this judgment.

¶144

FAFO No.1641 of 2000

¶145

35. This is an appeal for enhancement of compensation preferred on behalf of Bhura Khan. Admittedly, he was a young boy of 16 years, said to be a student. The description of his injuries in the claim petition pleaded is 'grievous injuries sustained over the body'. In Paragraph No.6 of the relevant column of the claim petition, the income claimed for the injured is nil. The claim of Rs.6,45,000/-, that the claimant in this case has come up with, is set out under the following heads in Paragraph No.22 of the claim petition, which reads:

¶146

	Different heads	Amount in Rs.
A.	Under Section 140 of the M.V. Act	25,000/-
B.	Under Section 166 of the M.V. Act
1	Economic loss due to injuries sustained over entire body	4,00,000/-
2	For pain and agony for entire being residied disabilitycompletely	1,00,000
3	For conveyance for whole life	75,000/-
4	Medical treatment	25,000/-
5	For special diet at the time of treatment	20,000/-
	Total	6,45,000/-

¶147

36. In the further averments made in the claim petition, it is said that the claimant was a student of High School, though he failed that year, but his admission continued. He wanted to build a bright future, but due to the disability, sustained in the accident, all his opportunities were lost. It is also said that the claimant has become almost crippled and unfit to carry on any creative activity in life. His future has been darkened and he suffers immense pain and agony. His treatment is still going on.

¶148

¶149

It is averred that the claimant had to spend a large sum of money on his treatment, as detailed in Paragraph No.22 of the claim petition. It is also said that it is necessary to provide for future medical treatment and a special diet, besides conveyance.

¶150

37. The Tribunal has awarded a total compensation of Rs.40,000/- in the manner that it has determined a sum of Rs.25,000/- for mental agony and physical pain suffered by the claimant. On the basis of a rough estimate of the medicines purchased and other expenses, incurred in the treatment, a sum of Rs.5000/- has been awarded. The Tribunal has remarked that the claimant has not been able to prove that in consequence of the accident, what particular injury he has sustained. It has then been observed that the claimant remained admitted to the hospital and would have required the assistance of a helper, besides a special diet. Therefore, in addition, the Tribunal has awarded a sum of Rs.10,000/-, thus, making it an award of Rs.40,000/-.

¶151

38. The Tribunal has noticed, during the course of its findings, that the claimant has not been examined by a doctor for his injuries and there is no handicap certificate on record. The treatment papers, that are available on record, show that the claimant was admitted to the Hospital from 18.06.1993 to 05.07.1993. It was also opined by the Tribunal that he sustained a fracture to his bone. It is not mentioned by the Tribunal as to which bone was fractured or given better particulars of the injuries sustained, because apparently there is no document on record about it. The Tribunal, however, has believed that the claimant sustained grievous injuries, including a fracture, may be inferring it, not very unreasonably from the 18-day-long stay in the Hospital for the claimant after the

¶152

¶153

accident. So far as vouchers relating to purchase of medicines are concerned, these have been recorded by the Tribunal to be worth Rs.4172/-. The claimant's testimony has been referred to by the Tribunal to say that the Hospital, where the claimant received treatment, does not charge patients. It is, on the basis of all this evidence, that the Tribunal has concluded that some general damages ought to be granted.

¶154

39. Mr. Ram Singh, learned Counsel for the claimants has urged that the claimant has sustained grievous injuries and was admitted to the Jawahar Lal Nehru Medical College and Hospital, A.M.U., Aligarh from 18.06.1993 to 05.07.1993 i.e. a period of 18 days. The learned Counsel for the claimant has broadly claimed expenses under the following heads, that can be rendered in tabulated form as follows:

¶155

	Different heads	Amount in Rs.
1	Loss due to injuries sustained in entire body	1000 x 12 x 18 = 2,16,000/-
2	Pain, sufferingand agony	25,000/-
3	Conveyance charges	25,000/-
4	Medical Expenses	10,000/-
5	Special Diet	5,000/-
	Total	2,81,000/- + 12% interest

¶156

40. Mr. Ram Singh, learned Counsel has placed reliance in support of his contention upon the decision of the Supreme Court in Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210 and further upon the authority of the Supreme Court in Kajal v. Jagdish Chand and others, (2020) 4 SCC 413 .

¶157

41. Mr. Amit Manohar, learned Counsel for the Insurers supports the impugned award and says that it is not at all a case for enhancement, because there is no evidence on record

¶158

¶159

to show that the injured sustained any serious debilitating injury or suffered any kind of a permanent handicap.

¶160

42. The broad principle regarding award of damages in injury cases have been laid down by the Supreme Court in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343 . Reference in this connection may be made to the following observations in Raj Kumar ( supra ):

¶161

“ General principles relating to compensation in injury cases

¶162

5. The provision of the Motor Vehicles Act, 1988 (“the Act”, for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. [See C.K. Subramania Iyer v. T. Kunhikuttan Nair [(1969) 3 SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v. Pest Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250] and Baker v. Willoughby [1970 AC 467 : (1970) 2 WLR 50 : (1969) 3 All ER 1528 (HL)] .]

¶163

6. The heads under which compensation is awarded in personal injury cases are the following:

¶164

Pecuniary damages (Special damages)

¶165

( i ) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.

¶166

¶167

( ii ) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

¶168

( a ) Loss of earning during the period of treatment;

¶169

( b ) Loss of future earnings on account of permanent disability.

¶170

( iii ) Future medical expenses.

¶171

Non-pecuniary damages (General damages)

¶172

( iv ) Damages for pain, suffering and trauma as a consequence of the injuries.

¶173

( v ) Loss of amenities (and/or loss of prospects of marriage).

¶174

( vi ) Loss of expectation of life (shortening of normal longevity).

¶175

In routine personal injury cases, compensation will be awarded only under heads ( i ), ( ii )( a ) and ( iv ). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads ( ii )( b ), ( iii ), ( v ) and ( vi ) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.

¶176

7. Assessment of pecuniary damages under Item ( i ) and under Item ( ii )( a ) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses—Item ( iii )—depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages —Items ( iv ), ( v ) and ( vi )—involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability—Item ( ii )( a ). We are concerned with that assessment in this case.

¶177

¶178

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

¶179

( i ) whether the disablement is permanent or temporary;

¶180

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

¶181

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

¶182

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

¶183

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

¶184

15. It may be noted that when compensation is awarded by treating the loss of future earning

¶185

¶186

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

¶187

17. If a doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage.

¶188

19. We may now summarise the principles discussed above:

¶189

( i ) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

¶190

( ii ) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).

¶191

( iii ) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

¶192

( iv ) The same permanent disability may result in different percentages of loss of earning

¶193

¶194

capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.”

¶195

43. Here, what this Court notices is that apart from the 18-day long hospitalization, when it could be said that there was a total loss of earning capacity for the claimant, there is no evidence showing that the claimant has suffered any such loss of earning, either during the period of treatment or future earnings on account of a permanent disability, as may entitle him to compensation on that basis. It is the admitted case of the claimant that he was a student of Class-X and had no income. There is absolutely no case of an income. Therefore, there is absolutely no basis claim damages under the head of loss of earnings during the period of treatment. It is for the said reason that the Tribunal has not awarded any compensation under the said head, and, in our opinion, rightly so. A notional income may be credited to him but, on that basis, it is difficult to infer what total loss of income during the period of his hospitalization he would have sustained.

¶196

44. There is a very startling feature of this case and that is that despite the claimant remaining hospitalized for 18-days in a semi-government hospital, there were no reports produced in evidence by the claimant to establish the nature of his injuries. The Tribunal has remarked that the claimant had sustained a fracture, but that inference has been drawn from the 17-18-day long stay in the Hospital. There is no x-ray plate on record, or a radiological examination report, opining the claimant to have sustained a fracture or other skeletal injury. To say that the claimant had sustained a fracture, would require some medical certification of the fact and its proof by a doctor. The claimant could have easily summoned the doctor, who had treated him for 18-days in the Jawahar Lal Nehru Medical College and

¶197

¶198

Hospital, Aligarh, but for some inexplicable reason, no doctor was called to the witness-box to testify on the claimant's behalf. The entire evidence about the nature of the injuries sustained by the claimant is based on a personal account in the witnessbox with no corroborative medico-legal testimony to support the nature or the extent of the injuries sustained. Admittedly, there is no permanent disability certificate on record, indicating even the slightest percentage of any physical disability that the claimant might have suffered in consequence of the accident.

¶199

45. It is in the background of these facts that under the head of pecuniary damages, the Tribunal has granted a sum of Rs.15,000/-, Rs.5000/- for the purchase of medicines and other facilities that would have been called in during treatment at the Hospital and Rs.10,000/- for purchasing nourishing food, seeking the assistance of a helper etc. The Tribunal has awarded a sum of Rs.25,000/- on account of damages for pain, suffering and trauma as a consequence of the injuries. This is under the head of non-pecuniary damages or general damages, that the Tribunal has determined, on a broad assessment done. The sum of Rs.25,000/- under this head has been determined, considering that the claimant remained hospitalized for 18 days in consequence of the accident. This may be a conservative estimate, because 18-days of hospitalization after an accident, a fact, which is unrebutted, does give rise to an inference that the claimant would have undergone considerable physical pain, suffering and mental trauma. Apart from that, there is hardly any evidence, either about loss of earning during the period of treatment or loss of future earnings, the loss of amenities, such as prospects of marriage etc., because there is no medico-legal certification on record to show that the claimant has sustained any permanent

¶200

¶201

handicap. In this connection, the cross-examination of the claimant may be referred to with profit:

¶202

"सबसे पहले P.H.C. अतरौली ले गये थे उसके बाद मलखान ससह असपताल व उसके बाद मेडीकल काललि ले गये थे। इन असपतालल मे इलाि फ् होता दवा व ररपोरर के प स े िाते हैा। आि कल के इलाि क् दवा का परार कोक दालखल नही ककया हस। मलखान ससह असपताल से मसडीकल काललि दालखल ककया था तो मस नही बता सकता कक ककसी डाकरर ने रसफर ककया था या नही। पतावली पर 40 % अपंगता का कोक कागि नही हस, डाकररल ने बताया था। आि कल मैा कोक काम नही कर रहा हूँ।"

¶203

46. This Court is of opinion that considering the fact that the claimant was hospitalized for 18 days and moved from one hospital to the other, an assertion made in the examination-inchief, which has not been discredited in the cross-examination, the expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, attendant charges and miscellaneous expenditure, all rolled up, ought to be enhanced from Rs.15,000/- to Rs.20,000/-. Likewise, damages for pain and suffering, given the time period of hospitalization, ought to be a sum of Rs.50,000/-, instead of Rs.25,000/-, estimated by the Tribunal.

¶204

47. Accordingly, this appeal deserves to be allowed to the above extent and the compensation awarded enhanced from Rs.40,000/- to Rs.70,000/-.

¶205

FAFO No.1642 of 2000

¶206

48. In this appeal, the deceased is one Smt. Raisan. She was aged 40 years and a housewife. She was self-employed and did tailoring jobs at home. An income of Rs.1500/- per month has been claimed for her. The Tribunal has accepted her income and contribution to the family at a figure of Rs.1000/per month or Rs.12,000/- annually. The deceased's husband, Aas Mohammad, who has testified as PW-3, has said in his examination-in-chief as follows:

¶207

¶208

"मेरी पतनी बचल को धारमक शशिा देकर, रखार राल कर, मशीन से कपडा सीकर 1000/-, 1500/- कमा लेती थी। मैा 3, 4 हिार रपये घरना से पहले कमा लेता था।"

¶209

49. In his cross-examination on this point, the witness had said:

¶210

"ये कहना गलत हस कक मेरी पतनी ससलाक करना नही िानती थी। ये कहना गलत हस कक मेरी पतनी कुछ नही कमाती थी।"

¶211

50. Looking to the socio-economic status of parties, in the totality of circumstances, this Court is of opinion that it would be a reasonable inference to draw that the deceased had an income of Rs.1500/- per month. The deceased left behind the following dependents, that is to say, her nuclear family comprising: Aas Mohd. @ Aasi Mohd aged about 50 years (husband), Anees Ahmad, aged about 20 years (son), Basheer, aged about 18 years (son), Munnan (son), Km. Noor Jahan aged about 14 years (daughter), Km. Rukhsana, aged about 12 years (daughter) and Km. Afsana, aged about 10 years (daughter). Treating each of the adults as one unit and the minors a half, the total number of dependents of the deceased would make it a figure of '5'. There is no mention of the age of one of the sons, Munnan, because his age in the relevant paragraph of the claim petition appears to be effaced, either on account of the paper being torn or some other damage done to it. Still, looking to the fact that the ages of children are mentioned in the descending order and the two sons mentioned above Munnan, to wit, Anis Ahmad and Bashir, are aged 20 and 18 years, respectively, the next mentioned son Munnan would be below the age of 18, and, therefore, a minor. There is also a note appended to the claim petition in the array, which says that claimant Nos.1 to 3 are major whereas 4 to 7 are minors. The dependents being five, they would have to be placed in the bracket of 4 – 6, as envisaged in Sarla Verma (Smt) v. Delhi

¶212

¶213

Transport Corporation and another, (2009) 6 SCC 121 . In Sarla Verma ( supra ), it has been held by the Supreme Court:

¶214

“ 30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra [(1996) 4 SCC 362], the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.”

¶215

51. In assessing the deduction towards personal expenses and applying the multiplier, the Tribunal has misdirected itself on the law completely. It has artificially created a class unknown to the law, that is to say, a full adult and a lesser adult. A full adult has been regarded as one constituting two units, the lesser adult one and a half unit i.e. persons in the age group of 11 – 20, and the children, who have been regarded as minors, constituting one unit. This classification or assignment of units has no basis to it in the law. It is neither supported by the law in Sarla Verma nor the U.P. Motor Vehicles Rules, 1998 (for short, the Rules of 1998) . Accordingly, the deduction towards personal and living expenses has to be held as 'one-fourth', the number of dependents being in the bracket of 4 – 6.

¶216

52. The Tribunal has committed a manifest error in assigning varying multipliers for the different dependents. It has assigned a multiplier of '11' for the husband and '13' for the children. The multiplier has been worked out on the basis of age of the dependents as distinguished from the age of the deceased whereas it is the latter that governs the applicable multiplier. In this regard, reference may be made to the table in Paragraph

¶217

¶218

No.40 of the report in Sarla Verma . There, for the age bracket of 36 – 40 years, the applicable multiplier is '15'. Therefore, the multiplier of '15' is to be adopted.

¶219

53. There is yet another head that has not been considered at all, and, that is, on account of future prospects. In National Insurance Company v. Pranay Sethi and others (2017) 16 SCC 680 , the benefit of future prospects has been extended to the self-employed and those working on a fixed salary. In Pranay Sethi ( supra ), it has been held:

¶220

“ 56. The seminal issue is the fixation of future prospects in cases of deceased who are selfemployed or on a fixed salary. Sarla Verma [ Sarla Verma v. DTC , (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects. It has not, per se, allowed any future prospects in respect of the said category.

¶221

57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is

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because the price rise does affect a selfemployed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardisation on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.

¶224

58. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma [ Sarla Verma v. DTC , (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari [ Reshma Kumari v. Madan Mohan , (2013) 9 SCC 65 : (2013) 4 SCC (Civ)

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191 : (2013) 3 SCC (Cri) 826] . Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self-employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.”

¶227

54. Given the decision in Pranay Sethi , the question that arises is whether the entitlement to future prospects would be governed by the Rule 220-A (3) of the Rules of 1998, which was introduced in the State of Uttar Pradesh by Notification No. 777/XXX-4-2011-4(3)-2010 dated 26.09.2011, or the principles in Pranay Sethi . This issue was considered by the Supreme Court in New India Assurance Co. Ltd v. Urmila Shukla and others, 2021 SCC OnLine SC 822 , where it has been held:

¶228

" 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.

¶229

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.

¶230

11. If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay 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 Sethicannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it

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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.

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

¶234

55. The principle then to be followed is that in the State of Uttar Pradesh, future prospects have to be governed by Rule 220-A (3) of the Rules of 1998 and not the principles in Pranay Sethi .

¶235

56. The next issue, which requires consideration is whether Rule 220-A (3) of the Rules of 1998, that was introduced by Notification No. 777/XXX4-2011-4(3)-2010 dated 26.11.2011 i.e. The Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011, would apply retrospectively to an accident that took place much earlier. This question was examined 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 was held:

¶236

" 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.

¶237

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

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

¶240

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.

¶241

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

¶242

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.

¶243

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.

¶244

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.

¶245

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.

¶246

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

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57. Looking to the law laid down by the Division Bench in Sushil Kumar , the award of future prospects is to be made in accordance with Rule 220-A (3) of the Rules of 1998, irrespective of the date of accident. Under Rule 220-A (3), considering the age of the deceased, which would be in the age bracket of 40 – 50 years, 30% is to be added to the income towards future prospects.

¶249

58. This still spares for consideration the question of entitlement under the conventional heads. The law on this point is again governed by the holding in Pranay Sethi . In Pranay Sethi , it has been laid down:

¶250

“ 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)

¶251

“ 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.”

¶252

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:

¶253

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

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

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(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”

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expenses incurred before death supported by bills/vouchers but not exceeding

¶258

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.

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

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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

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unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the 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.”

¶263

(emphasis by Court)

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59. The award of compensation for the loss of consortium is a matter that received further consideration of the Supreme Court in Magma General Insurance Company Ltd. v. Nanu Ram alias Chuhru Ram and others, (2018) 18 SCC 130 , where it has been held:

¶265

“ 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]

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21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of “company, society, cooperation, affection, and aid of the other in

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every conjugal relation”. [ Black's Law Dictionary (5th Edn., 1979).]

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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”.

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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.

¶271

60. As regards entitlement to parental consortium, I had occasion to consider the issue with reference to the entitlement of children who are major or adults on one hand and minors on the other in Jiuti Devi and others v. Manoj Kumar and others, 2022 SCC OnLine All 46 . In Jiuti Devi ( supra ), I held:

¶272

“ 39. Loss of consortium, that includes parental consortium, unlike dependency, is not some tangible economic loss. It is an emotional loss to the next of kin of the deceased-victim of a motor accident. In case of parental loss, it causes a particular deprivation to minors and young children, about whom it is said by the Supreme Court in United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur, to borrow the words of their Lordships, “Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents”.

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40. To the understanding of this Court, the impact of loss of parental consortium upon the deceased's children, in the very nature of that loss, is dependent upon the children's age. The loss of parent is a disheartening and emotional event for the child at any age of his maturity, but by the nature of the principle governing award of compensation under the head of parental consortium, the deprivation, that is suffered by a child or a minor, appears to be the determinative and entitling fact. A child, who has advanced into matured adulthood, is married or otherwise in the mainstream of life, would not be entitled to compensation under that head.”

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61. Here since four children are minors they would be entitled to be compensated for the loss of parental consortium. Not the children who are adults.

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62. In view of the aforesaid principles, the award of the Tribunal would have to be revised in the following manner:

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(i) Monthly Income (of the deceased) = 1500 (ii) Annual Income (of the deceased) = 1500x12 = 18000

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(iii) Annual Income+Future Prospects (annual income x 30%) = 18000+5400 = 23400

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(iv) Annual Dependency = Annual Income – one-fourth deduction towards personal expenses of the deceased = 23400-5850 = 17550

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(v) Total Dependency = Annual Dependency x Applied Multiplier = 17550 x 15 = 263250

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(vi) Claimant’s entitlement towards conventional heads = Loss of Estate + Funeral Expenses + dependents’ Consortium =15000+15000+40000x5 = 230000

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The total compensation would therefore, work out to a figure of Rs.263250 + Rs.230000 = 493250

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63. This appeal, therefore, deserves to be allowed to the above extent, modifying the award and enhancing the compensation, accordingly.

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FAFO No.1640 of 2000

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64. In this appeal, the claimant is Smt. Farakh Sultana, who has also claimed that the dependents of the deceased were his brother Chhatu and nephew Ali Mohd. At the outset, it must be said that given the relationship and age of the claimants, the sole claimant entitled would be the deceased's widow; not his brother or nephew. Both these men are adults and there is no

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reason to regard them as dependents of the deceased Abdul Latif. Abdul Latif was aged 42 years at the time of his demise. He was engaged in the occupation of farming to earn his livelihood. An income of Rs.3000/- per month has been claimed for him. The Tribunal has determined the dependency on a notional income for the deceased in the sum of Rs.15,000/- per annum . The Tribunal has held that in the absence of any evidence about the deceased earning a sum of Rs.3000/- per month from farming, all that he can be credited with is a notional income. We do not agree. About the income of the deceased, PW-4, Smt. Farakh Sultana has said in her examination-in-chief:

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"मेरे शोहर पर दो बीघा िमीन थी, भ स े पालते थे। मेरे शोहर 2, 3 हिार रपये कमा लाते थे। मेरे बचे हुये थे िो मर गये। मेरे पतत क् मृतयु के बाद िररया आमदनी नही हस। मैा मानससक व आरथक रप से परेशान हूँ।"

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65. I had occasion to consider the issue of income for persons from the unorganized sector in Smt. Kamni Devi Srivastava and another v. The New India Assurance Co. Ltd. and others, 2022:AHC:224345 . In Smt. Kamni Devi Srivastava ( supra ), it was held:

¶290

“ 14. The Tribunal has accepted the claimants' case about the deceased being engaged in the business of mobile handset sale and repair and there is no reason for this Court to disagree with the Tribunal's opinion on this count. The deceased was a young man of 24 years and there are cash-memos issued in the name of Yash Telecom. It would be preposterous to assume that a young man would be idling his way in life at the age of 24 years. To attribute a young man of that age a notional income and disbelieve whatever the claimants say was his gainful occupation in life is borne (Sic. born)of a stereotype in society, which the Insurer's arguments before the Tribunal and this Court as well is loaded with. The stereotype is that unless a person shows himself to be hailing from a service class, who can produce a salary certificate, everyone else in the society is

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regarded as non-productive. Most of the Country's GDP is contributed by the unorganized sector and one cannot shut eyes to the fact that this productive sector, particularly in the past, did not have much proof of all they would earn and contribute to the society. In our opinion, the Tribunal has assessed the income of the deceased in the sum of Rs. 3000/- per month as against the claim of Rs. 8000/-, which is unexceptionable.”

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66. Given the fact that the deceased was a man of 42 years and supporting his wife, and may be some others in the family, who cannot be regarded his dependents nevertheless, it would not be unreasonable to infer that the deceased had an income of Rs.3000/- per month. He did own 2 bigha of land in Village Tikta, P.S. Barla, District Aligarh, about which his wife has said he would exploit for agriculture. The testimony of the witness, to wit, the deceased's wife in the witness-box about deceased's income has largely gone unchallenged in the crossexamination. There is, therefore, good reason to hold that the deceased had an income of Rs.3000/- per month. The income of the deceased being Rs.3000/- per month, his annual income would be Rs.36,000/-.

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67. The next question to be considered is what deduction is to be made towards the deceased's personal and living expenses. Sarla Verma lays down the most widely acceptable principle about the deduction towards personal and living expenditure. These principles are set out in Paragraph No.30 of the report. However, in the present case, the guidance in Sarla Verma would not be of any assistance given the fact that the law, laid down there, in regard to married persons, speaks about the minimum number of dependents being in the bracket of 2 – 3. It does not take care of the solitary dependent of a married person. I had occasion to consider this issue in Abdul

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Khaliq and others v. U.P.S.R.T.C. and others, 2023:AHC:124059 , where it was held:

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“ 34. What, therefore, would be the deduction where the deceased left behind a solitary dependent is the question to be answered. This issue fell for consideration before the Karnataka High Court in Manager, National Insurance Co. Ltd. v. T. Chandranaika and others, 2018 SCC OnLine Kar 2295. Referring to the guidance in Sarla Verma, the Karnataka High Court in T. Chandranaika (supra) has held:

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“9. As emphasized by the Learned Counsel for the appellant Smt. Manjula N. Tejaswi, it is seen that the Tribunal has not deducted any amount towards personal and living expenses of the deceased, out of her income of Rs. 7,000/per month. Though the deceased was a married woman, she has left behind only a single dependant, namely her husband. Her both sons are majors aged above 35 years and are independently earning and looking after their families. Hence, since the deceased has left behind a sole dependant-her husband, the deduction to be adopted towards personal and living expenses ought to be taken at 1/2.

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This view is supported by the decision of the Hon'ble Apex Court in the case of Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121.] . The relevant paragraph of the said judgment reads as under:

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“30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (⅓rd) where the number of dependent family members is 2 to 3. one fourth (¼th) where the number of dependentfamily members is 4 to 6, and onefifth (1/5th) where the number of dependent family members exceeds six.”

¶301

(emphasis supplied)

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This implies that when there is only one dependant of the deceased, the deduction

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towards personal and living expenses of the deceased should be taken as ½.

¶305

Applying the above view in Sarla Verma, the law has been succinctly laid down in the case of New India Assurance Co. Ltd. v. Sri. David T. [ILR 2012 KAR 2859.] wherein the relevant paragraph reads as under:

¶306

“7. After going through the impugned judgment and award passed by Tribunal and after reappreciation of the oral and documentary evidence available on file, I am of the considered view that the Tribunal has rightly assessed the monthly income of the deceased at Rs. 3,000/-, but erred in deducting ⅓rd towards the personal expenses of the deceased and taking the age of the deceased for adopting the multiplier instead of deducting 50% towards the personal expenses and adopting multiplier on the basis of the age of the husband of the deceased, as rightly pointed out by Learned Counsel for appellantInsurer. In the light of the well settled law laid down by the Hon'ble Apex Court and this Court, in hosts of cases, whenever there is a sole claimant, 50% is to be deducted. Accordingly, I accept the monthly income of the deceased at Rs. 3,000/- and deduct 50% towards the personal expenses of the deceased. Accordingly, if 50% (i.e. Rs. 1,500/-) is deducted from Rs. 3,000/- towards her personal expenses, the net income would be Rs. 1,500/- per month. Since the husband of the deceased was aged about 70 years, the proper multiplier applicable is ‘5’ as per the decision of the Hon'ble Apex Court SARLA VERMA 'S CASE as against ‘10’ adopted by Tribunal. Thus, the compensation towards loss of dependency would work out to Rs. 90,000/(i.e., Rs. 1,500/- × 12 × ‘5’) as against Rs. 2,40,000/- awarded by Tribunal.”

¶307

In view of the above decisions, I find that the judgment of the Tribunal requires to be revisited on the aspect of compensation awarded under the head ‘Loss of dependency’ and the deduction towards personal and living expenses shall be taken at 50%.

¶308

Hence, the compensation payable towards ‘loss of dependency’ would come to Rs. 3,78,000/(1/2 × 7000 × 9 × 12) as against Rs. 7,56,000/awarded by the Tribunal. However, the compensation awarded by the tribunal under other conventional heads is just and proper and

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does not call for interference by this Court. Thus, the claimants-respondents are entitled to a total compensation of Rs. 4,18,000/- (Rupees four lakh eighteen thousand only) as against Rs. 7,96,000/- awarded by the Tribunal.”

¶311

35. There is similar reasoning adopted in a more recent decision of the Karanataka High Court in Geeta Hukumchand Bagewadi v. Sundarawwa Shivaray Naikhe and others, M.F.A. No. 20759 of 2020 (MVD), decided on 15.04.2019, where B.M. Shyam Prasad, J. Held:

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“8. The arguments as regards the deduction towards personal expenses in the case of a sole dependent is based on the decision of the Hon’ble Supreme Court in the case of Sarla Verma and others v. Delhi Transport Corporation and another, reported in 2009 6 SCC 121. The Hon’ble Supreme Court has held that the deduction towards personal expenses should be 1/3rd when the dependents of the deceased are either two or three, 1/4th if the dependants are between 4 and 6 and 1/5th if the dependants are more than 6. A coordinate bench of this Court has considered this question of deduction toward spersonal expenses if the deceased is survived by a sole dependant in the light of the decision in Sarla Verma’s case referred supra and deducted 50% towards personal expenses. This court can only agree with the submissions by the learned counsel for the Insurer that the deduction towards personal expenses in the case of a sole dependant should be 50% (or ½) of the Income as it stands to reason that if the permissible deduction in the case the number of dependants is either 2 or 3 should be 1/3rd, the deduction cannot be the same if the deceased is survived by a sole dependant. Of the two claimants, the Claimant No. 1 is the wife, and the other claimant is a major son. Therefore, only the wife would qualify as the dependant. As such the deduction towards personal expenses should be 50% (or ½) of the income. As such, the argument by the learned counsel for the Insurer in this regard is accepted.”

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36. The decisions of the two learned Single Judges of the Karanataka High Court, with utmost respect, are not very eloquent in their reasoning why in case of a single dependent, deduction of 50% is to be made towards personal expenses. To the understanding of this Court, the reasoning would proceed on slightly different premise than that in the case of a bachelor, where 50%

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deduction is the rule in Sarla Verma. The reason for the rule in the case of bachelors is that they are pre-disposed to be spending more on themselves than married persons, who have to bear the responsibilities of a family. In case of a single dependent, the likelihood of the deceased sharing his income equally between himself and the dependent may serve as a valid basis to hold a 50% deduction towards personal and living expenses. Even otherwise, adopting the unit system for determining the deduction towards personal expenses, the deceased and the sole dependent can be regarded as two units, leading to the safe inference of 50% deduction towards the deceased's personal expenses.”

¶316

68. The deduction, therefore, to be made towards the personal and living expenses of the deceased is 50%. The other parameters, on which compensation is to be assessed, have already been discussed hereinabove. The Tribunal has adopted a multiplier of '12', which is manifestly illegal and has to be substituted by a multiplier of '14'. Going by the age of the deceased, 30% is to be added to the income towards future prospects.

¶317

69. The award of the Tribunal would, therefore, have to be revised on principles indicated hereinabove in the following manner:

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(i) Monthly Income (of the deceased) = 3000 (ii) Annual Income (of the deceased) = 3000x12 = 36000

¶319

(iii) Annual Income+Future Prospects (annual income x 30%) = 36000+10800 = 46800

¶320

(iv) Annual Dependency = Annual Income – 50% deduction towards personal expenses of the deceased = 46800-27000 = 19800

¶321

(v) Total Dependency = Annual Dependency x Applied Multiplier = 19800 x 14 = 277200

¶322

(vi) Claimant’s entitlement towards

¶323

¶324

conventional heads = Loss of Estate + Funeral Expenses + dependents’ Consortium =15000+15000+40000 = 70000

¶325

The total compensation would therefore, work out to a figure of Rs.277200+ Rs.70000 = 347200

¶326

70. This appeal, therefore, deserves to be allowed to the above extent, modifying the award and enhancing the compensation, accordingly.

¶327

FAFO No.1264 of 2000

¶328

71. In this appeal, the claimants are the heirs of the late Bhura Khan son of the late Bashir Khan. The deceased was also a passenger on board the ill-fated vehicle and died in the accident on 18.06.1993. The claimants stand in the following relationship to the deceased: Smt. Nazeeran (mother), Safiuddin (brother), Km. Shameem Bano (sister), Km. Naseem Bano (sister) and Bhalla (brother). According to the claimants, the deceased was a young man of 18 years and a student sitting privately to write his Class-X Examination. In paragraph No.5 of the claim petition, though the income has been asserted to be nil yet in the testimony of the claimant, the deceased has been credited with an income of approximately Rs.2000 – Rs.2500/- per month, which he garnered by doing farming and dairy business. In her examination-in-chief, PW-2 Smt. Nazeeran has said about the deceased's income thus:

¶329

"मेरा मृतक लडका भूराखां दसवी किा मे पढता था तथा घर पर कुछ भैासे पालकर व खेती का काम करके दो-ढाक हिार रपया कमा कर मुझे देता था। मैा इसी के साथ रहती थी और ये ही मेरे िीवन का सहारा था। बाक् मेरे बचे छोरे-2 हैा।"

¶330

72. In her cross-examination, she has stated:

¶331

"मेरे रार बेरे हैा। बडा बेरा मेरा खेती का काम करता हस।........ तीसरा व छोरा बेरा मेरे छोरे-2 हैा। मेरे यहां पांर भैासे हैा। मेरे छोरे बचे भ स ल क् देखभाल करते हैा।........... यह कहना गलत हस कक मेरा बेरा ससफर पढना था कमाता नही था।"

¶332

¶333

73. Strict rules of pleadings cannot be applied to an inquisitorial jurisdiction like that of the Tribunal under the Act of 1988, when judging a claim under the said Statute, which is essentially a social welfare legislation. Notwithstanding the fact that no income has been claimed in paragraph No.5 of the claim petition, it has to be harmoniously construed with the assertions in paragraph No.23, where it is pleaded that the deceased was a well-built man of good habits, who would work hard on the fields, besides carrying on his dairy business also. It is pleaded there that he earned more than Rs.3000/- per month.

¶334

74. The Tribunal has recorded a finding that the deceased had an income of Rs.1000/- per month on a notional basis, that is to say, Rs.12,000/- a year. This finding proceeds on the foot of the fact that no income had been claimed for the deceased or positive evidence offered about it. In our opinion, it would be unrealistic in the rural scenario of the time to expect any positive evidence about the income of a man, reasonably productive in the agrarian economy. There can hardly be any documentary evidence of what a man would earn, selling milk or undertaking agricultural exertions. It is true that there are no documents to show that the family had any agricultural holding, but even that does not matter. The deceased would have earned some part of his income, working on the fields of others, which was commonplace at the time. The evidence about the family owning five cattle heads lends support to the fact that the deceased would also earn by supplying milk. Circumstantially too, the family were making their ends meet, and, the deceased being the lone adult male member in the family, it can safely be inferred that he was earning the sum that we have credited to him hereinafter to support the family. The Tribunal is, therefore,

¶335

¶336

not right in assessing the deceased's income notionally at a figure of Rs.12,000/- a year (Rs.1000/- per month).

¶337

75. The deceased being a young man of 18 years and given the fact that there was no earning member besides him in the family, it would not be far-fetched to credit him with an income of Rs.2000/- per month. This would also accord more or less with the testimony of PW-2, the deceased's mother, Nazreen, who has said that her son would earn approximately Rs.2000 – Rs.2500/- per month from his exertions on the field and dairy business. It has figured also in her testimony that the family owned five cattle heads, which they would utilize to supply milk. It is held that the deceased had an income of Rs.2000/- per month.

¶338

76. The deceased was aged 18 years, and, amongst his dependents, were two minor brothers and two minor sisters, besides his mother. The minor brothers and sisters were apparently dependent upon him and are to be regarded as his dependents, at least for the purpose of working out the claimants' dependency. For the principle that minor brothers and sisters, or for that matter even unmarried sisters, can be regarded as dependents of the deceased victim of a motor accident, this Court places reliance upon the decision in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another, (1987) 3 SCC 234 , where it was held:

¶339

“ 13. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to 110-F of the Act. These provisions are

¶340

¶341

in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A of the Act have to be done in accordance with wellknown principles of law. We should remember that in an Indian family brothers, sisters and brothers' children and some times foster children live together and they are dependent upon the bread-winner of the family and if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai [AIR 1977 Guj 195 : 1977 ACJ 253 : 1977 TAC 366] and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act if he is a legal representative of the deceased.”

¶342

77. Though, this decision was rendered under the Motor Vehicles Act, 1939, nothing has been shown to this Court that the position of law about the dependents of a deceased, has altered under the Act of 1988. Rather, the Act of 1988 speaks about legal representatives under Section 166 of the said Act. This Court in Baij Nath Choudhary v. Sardar Avtar Singh and Others, 2020 (1) An.WR 47(All.) , has held:

¶343

“5. This takes this Court to the quantum, the deceased was 22 years of age. He was going on his bicycle when the tanker dashed with him in a rash and negligent manner and he died on the spot. The Tribunal held that the claim petition was preferred by the father , his mother, brother and a minor sister. Mother was also joined as claimant. The finding of facts that unmarried sister is not dependent on the brother and father. The said issue is against the mandate of

¶344

¶345

Section 166 of Act, 1988 which reads as follows :-

¶346

"166. Application for compensation.-- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--

¶347

(a) by the person who has sustained the injury; or

¶348

(b) by the owner of the property; or

¶349

¶350

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

¶351

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

¶352

(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

¶353

Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. (3) [ * * * ]

¶354

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act."

¶355

It does not speak about the dependency it speaks about legal representative, like mother ,

¶356

¶357

brother and sisters who can maintain claim petition under the Act for the death of the brother who was a bachelor when he died.

¶358

78. The Tribunal has held that the deceased was a student and the 'obligation', as the Tribunal has chosen to describe it, was owed by the deceased to his mother; not his minor brothers and sisters. We do not agree. The entitlement to maintain a claim petition is not based so much on 'obligation', as if it were to maintain in proceedings brought for the award of maintenance in one jurisdiction or the other. It is about the dependency of the immediate family members of the deceased, who are actually dependent upon him for their bread and butter or sustenance. In the case of a bachelor, with parents at home or minor brothers and sisters, it would not be remote to infer that kind of dependency, which the Act of 1988 postulates to support a claim. It is, therefore, held that the deceased's dependents were his mother and the four minor brothers and sisters.

¶359

79. About the deductions towards personal and living expenses of the deceased, the principle in case of bachelors, who have a large and dependent family, comprising of younger siblings, propounded in Sarla Verma is attracted here. It has been held in Sarla Verma :

¶360

“ 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 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.”

¶361

¶362

80. Here, this Court finds that the deceased had two younger brothers and two younger sisters, all minors. There is evidence of the mother that the entire family were dependent on the deceased's income. Given this fact, this Court is of opinion that the law in Sarla Verma would require a deduction of one-third towards the deceased's personal and living expenses and a two-thirds of his income, apportioned towards the contribution made to the family.

¶363

81. The Tribunal has, for reasons of its own, made a deduction of a one-thirds towards personal and living expenses, which we approve, but for reasons different than those that have weighed with the Tribunal.

¶364

82. The Tribunal has applied a multiplier of '13', bearing in mind the age of the mother. That is not the correct principle to apply. Going by the principle in Sarla Verma and considering that the deceased was in the age bracket of 15 – 20, the multiplier of '18' has to be adopted. The age of the mother or the other family members is quite irrelevant. The Tribunal, in our opinion, has gone wrong in that regard. The Tribunal has also not awarded anything towards future prospects and the issue has been dealt with elsewhere in this judgment with reference to the authority of the Supreme Court in Pranay Sethi and its applicability to the State of Uttar Pradesh, where the Rules of 1998 have to be applied in preference to the principles in Pranay Sethi while working out future prospects. The other issues have already been discussed in the earlier part of this judgment.

¶365

83. So far as the award of consortium is concerned, bearing in mind the principle in Magma General Insurance Company Ltd. , this Court would restrict the award of compensation for the

¶366

¶367

loss of consortium to the mother alone, because after all there are only three species of consortium, the loss of which has been held to give rise to a right to seek compensation. The mother is entitled to filial consortium. The younger brothers and sisters do not fall into any of the acknowledged categories.

¶368

84. In this view of the matter, the award of the Tribunal deserves to be modified and the compensation payable revised in the following terms:

¶369

(i) Monthly Income (of the deceased) = 2000 (ii) Annual Income (of the deceased) = 2000x12 = 24000

¶370

(iii) Annual Income+Future Prospects (annual income x 50%) = 24000+12000 = 36000

¶371

(iv) Annual Dependency = Annual Income – one-third deduction towards personal expenses of the deceased = 36000-12000 = 24000

¶372

(v) Total Dependency = Annual Dependency x Applied Multiplier = 24000 x 18 = 432000

¶373

(vi) Claimant’s entitlement towards conventional heads = Loss of Estate + Funeral Expenses + dependents’ Consortium =15000+15000+40000 = 70000

¶374

The total compensation would therefore, work out to a figure of Rs.432000+ Rs.70000 = 502000

¶375

85. This appeal, therefore, deserves to be allowed to the above extent, modifying the award and enhancing the compensation, accordingly.

¶376

FAFO No.1638 of 2000

¶377

86. This is an appeal by one Asitullah Khan, who was a dependent of the late Nusarat Khan, one of the victims of the motor accident dated 18.06.1993. The victim was an 18 year

¶378

¶379

old young man who died in the accident. He is said to have been a student and gainfully employed in dairy farming, as it is described, which yielded him a monthly income of Rs.2000/approximately.

¶380

87. It is averred in the claim petition that he was a young boy of good habits and spent his entire income for the welfare of his family, comprising his father and three brothers. In consequence of his untimely demise, the family have been ruined and deprived of the deceased's contribution, besides love and affection. The claimants are the father and three brothers of the deceased. The father is aged about 40 years whereas the three brothers of the deceased, Pappu, Rashid and Badruddin are aged 16, 14 and 12 years, respectively. A total compensation of Rs.8,00,000/- was claimed under Section 166 of the Act of 1988 and Rs.50,000/- under Section 140. It may be mentioned here that compensation can be awarded under one of the provisions of the Act of 1988; not under both. Since compensation has been awarded working out the loss sustained under various heads, the claim is treated as one under Section 166 of the Act of 1988.

¶381

88. The first question to be determined is the deceased's income. The Tribunal has estimated for him an annual income of Rs.15,000/-. The basis is the fact that the deceased was a healthy young man of 18 years living in a village. The income is, therefore, based on an assessment of the circumstances and the claim made. This Court is inclined to think that going by the testimony of PW-5 and the circumstances, in which the family were placed, the deceased would have earned a sum of Rs.2000/- per month or Rs.24,000/- annually.

¶382

¶383

89. The reason is, as would presently be shown, that the claimants have come up with a figure of Rs.2000/- as the deceased's monthly income in the pleadings, which ultimately in the evidence too has been acknowledged. Also, the income accords with the fact that the deceased was a young man, living in a village, where this kind of income from the business of dairy farming is circumstantially supported.

¶384

90. Testifying as PW-5, Asitullah Khan has said in the examination-in-chief:

¶385

"मेरा लडका पढता था बहुत होनहार था। तथा भैासे पालकर तथा दूध बेरकर लगभग मुझे 25000/- रपए कमा कर देता था। उसके मरने के बाद हमारा कोक िररया आमदनी नही हस। मेरा लडका पढ ललख कर तरक् करता, हमारी आमदनी बढती तथा हमे सुख पाप होता।"

¶386

91. In his cross-examination, this witness has said:

¶387

"नुसरत 8 वी किा मे पढ रहा था। पढाक के साथ-2 भैासल का काम भी करता था। मेरी 5 भैासे थी। अब नही हस। ये कहना गलत हस कक पहले मेरे पास कोक भैास नही थी। मेरा मृतक लडका डेरी पर दूध बेरता था। मेरा लडका िो दूध ले िाता था उसक् ललखत पढत रखता था। रसिसरर मे प स े रढाए िाते थे। 100/- का दूध रोि बेरता था। मुझे 2500/- व 3000/- बरा कर देता था बाक् अपने ऊपर व भैासो पर खरर करता था। मेरा लडका मेरा पालन पोषण कर रहा था। मैा खेती बारी करता हूं। मैा उसे एक भी प स ा नही देता था। वही मुझे देता था।

¶388

…. दावा वाली बात 2000/- कमाने वाली बात सही हस अभी िो 2500/कमान वाली बात कही ह वह गलत हस ।"

¶389

(emphasis by Court)

¶390

92. The testimony of PW-5 would show that the deceased was into the business of dairy farming and the family owned five cattle heads. The deceased would sell milk at the dairy, that would yield him an income, according to this witness, in the figure of Rs.2500-3000/- per month. However, in his crossexamination, where this figure has been disclosed, it has been acknowledged that the deceased would earn Rs.2000/- per month, as averred in the claim petition. It has also been admitted that the figure of Rs.2500-3000/-, mentioned in the

¶391

¶392

testimony, is incorrect. Therefore, this Court is of opinion that the deceased would earn a sum of Rs.2000/- per month or Rs.24,000/- annually.

¶393

93. Considering the fact that even if the father, who is aged 40 years, would have his own income and, therefore, not strictly speaking a dependent of the deceased, the three younger brothers would certainly be regarded as the deceased's dependents. At the same time, given the presence of the father, the circumstances of the family and the age group of the minors, particularly, the elder ones, it cannot be regarded as one of those cases where the family were entirely dependent on the deceased's income. The deceased was a bachelor. Therefore, going by the principle in Paragraph No.31 of the report in the case of Sarla Verma , a deduction of 50% ought to be made. Going by the principle in the said authority, the deceased being in the age group of 15-20, the applicable multiplier would be '18'.

¶394

94. The Tribunal has deducted one-third from the deceased's income and adopted a multiplier of '11' going by the father's age. In our opinion, both these parameters are flawed, for the reasons given above. These have to be modified accordingly.

¶395

95. Following the principles, already discussed, the deceased is entitled to future prospects, adding to his income on that account 50% of what he earned. The conventional heads would have to be revised according to the principles already discussed.

¶396

96. So far as compensation for the loss of consortium is concerned, the father alone would be entitled.

¶397

¶398

97. The award of the Tribunal has, therefore, to be modified and revised in the manner indicated below:

¶399

(i)	Monthly Income (of the deceased)	=	2000
(ii)	Annual Income (of the deceased) = 2000x12	=	24000
(iii)	Annual Income+Future Prospects (annual income x 50%) = 24000+12000	=	36000
(iv)	Annual Dependency = Annual
	Income – 50% deduction towards personal expenses of the deceased = 36000-18000	=	18000
(v)	Total Dependency = Annual Dependency x Applied Multiplier = 18000 x 18	=	324000
(vi)	Claimant’s entitlement towards
	conventional heads = Loss of Estate + Funeral Expenses + dependents’ Consortium =15000+15000+40000	=	70000
The	total compensation would
ther	efore, work out to a figure of
Rs.	324000+ Rs.70000	=	394000

¶400

98. The Tribunal has awarded simple interest @ 12% per annum from the date of institution of the claim petitions until realization in all cases. Going by the principles in Rule 220-A (6) of the Rules of 1998, though these Rules were introduced much after the accident, this Court finds that the appropriate interest to award is simple interest @ 7% per annum from the date of institution of the claim petition until realization.

¶401

99. In the result, FAFO Nos.841 of 2000, 842 of 2000, 843 of 2000, 844 of 2000 and 845 of 2000 are allowed in part and the awards in these appeals are modified to the extent that instead of Insurers bearing the liability, they would be obliged to pay in the first instance and recover from the owner.

¶402

¶403

100. The claimants' appeals being FAFO Nos.1641 of 2000, 1642 of 2000, 1640 of 2000, 1264 of 2000 and 1638 of 2000 are also allowed and the impugned awards are modified, enhancing the compensation payable as directed hereinabove.

¶404

101. Both parties having met with partial success, costs shall be easy.

¶405

Order Date :- 20.9.2023

¶406

Anoop

¶407

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

National Insurance Company Ltd. v. Sri Bhoora Kha and Others

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National Insurance Company Ltd. v. Sri Bhoora Kha and Others

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