The National Insurance Co. Ltd. ... vs Vishram And 5 Others
2022 Latest Caselaw 3537 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 
RESERVED ON 24.11.2021
 
DELIVERED ON 20.05.2022
 
Court No. - 24
 

 
Case :- FIRST APPEAL FROM ORDER No. - 817 of 2016
 

 
Appellant :- The National Insurance Co. Ltd. Thru. Divisional Manager
 
Respondent :- Vishram And 5 Others
 
Counsel for Appellant :- Anil Srivastava
 
Counsel for Respondent :- Jagat Pal Singh,Maneesh Pandey
 
                                    And
 
Case :- FIRST APPEAL FROM ORDER No. - 51 of 2018
 

 
Appellant :- Vishram And Others
 
Respondent :- The National Insurance Company Ltd.Through Div.Manager And Ors
 
Counsel for Appellant :- Jagat Pal Singh
 
Counsel for Respondent :- Anil Srivastava,Maneesh Pandey
 
                                
 
Hon'ble Salil Kumar Rai,J.

The above First Appeal From Orders have been filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, ''Act, 1988') against the judgment and award dated 30.5.2016 passed by the Motor Accident Claims Tribunal, Lucknow in Motor Accident Claim Petition No. 99 of 2015. First Appeal From Order No. 817 of 2016 has been filed by the National Insurance Company Ltd., Lucknow (hereinafter referred to as, ''Insurance Company') for setting-aside the award dated 30.5.2016 while First Appeal From Order No. 51 of 2018 has been filed by the claimants for enhancement of compensation. The appellant in First Appeal From Order No. 817 of 2016 shall hereinafter be referred as the Insurance Company in the present appeal. The opposite party nos. 1 to 4 in First Appeal From Order No. 817 of 2016 shall hereinafter be referred as the claimants in the present appeal, the opposite party no. 5 in First Appeal From Order No. 817 of 2016 is the owner of the vehicle and shall hereinafter be referred as owner of the offending vehicle and opposite party no. 6 is the driver of the offending vehicle and shall hereinafter be referred as driver of the offending vehicle in the present judgment.

The facts of the case are that Motor Accident Claim Petition No. 99 of 2015 was instituted by the claimants claiming a compensation of Rs.22,00,000/- for the death of Sushil (hereinafter referred to as, ''the deceased') due to the injuries caused in the accident which allegedly took place due to rash and negligent driving of Bus No. U.P. 32 C.N. - 4757 (hereinafter referred to as, ''offending vehicle'). The accident took place on 22.12.2014 at 7:50 a.m. In the claim petition, the accident was alleged to have occurred in front of Bajrang Hospital. The case of the claimants is that on 22.12.2014 the deceased was going on a bicycle to join his duties in Usha Company and, at 7:50 a.m. when he was in front of Bajrang Hospital, the offending vehicle hit the bicycle from the front causing injuries to the deceased who subsequently died on 6.1.2015 due to the injuries caused in the accident. It has been stated by the claimants that the deceased was initially admitted in Bajrang Hospital who after giving first aid to the deceased referred him to Trauma Centre in King George Medical University, Lucknow (hereinafter referred to as, ''K.G.M.U.') where the deceased died on 6.1.2015. According to the claimants, the deceased was admitted in the K.G.M.U. on 22.12.2014 itself. A First Information Report registering Case Crime No. 476 of 2014 under Sections 279, 338 and 427 of the Indian Penal Code was also registered against the driver of the offending vehicle on 31.12.2014. It is the case of the claimants that the deceased was working as a Loader in Usha Company as well as for certain private traders and earned Rs.9,000/- per month. On the aforesaid pleas, the claimants claimed a compensation of Rs.22,00,000/- for the death of the deceased. The opposite party no. 1 / claimant no. 1 is the father of the deceased, opposite party no. 2 / claimant no. 2 is the mother of the deceased, opposite party no. 3 / claimant no. 3 is the wife of the deceased and opposite party no. 4 / claimant no. 4 is the minor son of the deceased. Opposite party no. 4 was one year old at the time of accident.

The owner and the driver of the vehicle filed their written statements denying the incident and the involvement of the offending vehicle in the accident and also denied the allegation that Sushil died due to any injuries caused in the accident. The case of the owner and the driver of the vehicle was that on the date of accident, the offending vehicle was not plying on the route on which the accident occurred. It was additionally pleaded by the owner and the driver of the vehicle that at the time of accident, the vehicle was insured with the Insurance Company and the driver of the vehicle had a valid driving licence. The Insurance Company, i.e., the appellant also filed its written statement denying the incident and the involvement of the offending vehicle in the accident and additionally pleaded that there was contributory negligence on the part of the deceased in the accident.

In Motor Accident Claim Petition No. 99 of 2015, the Tribunal framed five Issues. Issue No. 1 was regarding the factum of accident and the involvement of the offending vehicle in the accident. Issue No. 2 was as to whether there was any contributory negligence on the part of the deceased in causing the accident, Issue No. 3 was as to whether at the time of accident, the driver of the offending vehicle had a valid driving licence. Issue No. 4 was as to whether at the time of accident, the offending vehicle was insured with the Insurance Company. Issue No. 5 was regarding the amount of compensation payable to the claimants and the defendant liable to pay the said compensation.

In the Tribunal, the opposite party no. 3 / claimant no. 3 deposed as plaintiff witness no. 1 and one Mahesh deposed as plaintiff witness no. 2 for the claimants. In the Tribunal, the claimants filed the First Information Report, the post-mortem report of the deceased, the inquest report, the charge-sheet filed by the police against the driver of the offending vehicle in Case Crime No. 476 of 2014, the discharge certificate of the King George Medical University and the medical receipts showing expenses on the treatment of the deceased. The defendant produced the driver of the offending vehicle as D.W. - 1 and the owner of the vehicle as D.W. - 2 and also filed the route chart of 31st July, 2015 and 27th January, 2016 to show that the offending vehicle did not ply on the route on which the accident took place.

The Tribunal decided Issue No. 1 in favour of the claimants relying on the testimony of plaintiff witness nos. 1 and 2 as well as after taking note of the First Information Report and the fact that a charge-sheet had been filed against the driver of the offending vehicle regarding the accident. So far as Issue No. 2 is concerned, the Tribunal after considering the site plan held that there was no contributory negligence by the deceased in causing the accident as the deceased was on the left side of the road when the accident occurred. Issue Nos. 3 and 4 were decided in favour of the owner and the driver of the offending vehicle and it was held by the Tribunal that, at the time of accident, the driver of the offending vehicle had a valid driving licence and the vehicle was insured with the appellant - Insurance Company. So far as Issue No. 5 is concerned, the Tribunal in light of the findings on Issue Nos. 3 and 4 held the Insurance Company liable to indemnify the owner of the vehicle. The Tribunal determined the compensation after taking the notional income of the deceased as Rs. 3,000/- per month and after adding of 50% future prospects in the income of the deceased. The Tribunal deducted 1/4 against personal and living expenses of the deceased and applied a multiplier of 18 holding that the age of the deceased was 24 years. The Tribunal awarded Rs.5,000/- for loss of consortium, loss of love and affection and funeral expenses, in accordance with Rule 220-A (4) of the Uttar Pradesh Motor Vehicles Rules, 1998 (hereinafter referred to as, ''Rules, 1998') and further Rs.25,078/- for the medical expenses incurred by the claimants on the treatment of the deceased. On the aforesaid, the Tribunal awarded a total compensation of Rs.7,69,078/- as compensation to the claimants with 7% interest from the date of instituting the claim petition till the date of final payment. Hence, the present appeals.

It was argued by the counsel for the appellant that the discharge certificate issued by the Medical Officer on duty at King George Medical University showed that the deceased was admitted in the Trauma Centre on 23.12.2014 at 3:15 p.m. It was argued that the aforesaid document which was marked as Paper No. C-4/8 in the Tribunal clearly falsified the testimony of P.W. - 1 and P.W. - 2 that the accident occurred on 22.12.2014 and their testimony regarding the accident was not reliable. It was argued the delay in filing the First Information Report had not been explained by the claimants. It was further argued that the route chart filed by the owner and the driver of the offending vehicle clearly showed that the offending vehicle did not ply on the route on which the accident took place and the allegation of the claimants that the accident took place because of rash and negligent driving of the offending vehicle was false. It was further argued that the site plan prepared by the police in Case Crime No. 476 of 2014 showed that the accident happened in front of Heera Complex and not in front of Bajrang Hospital as alleged by the claimants. It was argued that the documentary evidence on record clearly contradicted the case of the claimants. It was further argued that the Tribunal has ignored the aforesaid evidence which went to show that a false case was set-up by the claimants to get compensation and the findings of the Tribunal on Issue No. 1 are contrary to the evidence on record and are liable to be set-aside. It was argued that for the aforesaid reasons, First Appeal From Order No. 817 of 2016 is to be allowed and the award dated 30.5.2016 passed by the Tribunal is to be set-aside.

Rebutting the arguments of the counsel for the appellant, the counsel for the claimants has supported the reasons given by the Tribunal in support of its findings and has argued that the accident was proved by the testimony of P.W. - 2, who was an eye-witness to the incident. It was argued that the discharge certificate issued by the Medical Officer of K.G.M.U. did not correctly record the date of admission of the deceased and the fact that the deceased was admitted in K.G.M.U. on 22.12.2014 was proved by other documents available on record, especially Paper Nos. C-24/1 and C-24/2. It was argued that the evidence on record clearly showed that the deceased died due to the injuries caused in the accident which took place because of rash and negligent driving of the offending vehicle and there is no error in the findings of the Tribunal on Issue Nos. 1 and 2. It was further argued that the Tribunal has awarded very meager compensation to the deceased and the compensation had to be computed on a notional income of Rs.200/- per day. It was further argued that the Tribunal has awarded very meager amount for loss of consortium and loss of love and affection to the claimants and for the funeral expenses and the Tribunal has not awarded any amount to the claimants for loss of estate. It was argued that the claimants were entitled to separate compensation for loss of consortium and loss of love and affection. It was argued that in the aforesaid circumstances, the compensation is to be enhanced and the award of the Tribunal is to be modified. It was argued that for the aforesaid reasons, First Appeal From Order No. 51 of 2018 is to be allowed and First Appeal From Order No. 817 of 2016 is liable to be dismissed.

I have considered the rival submissions of the counsel for the parties and also perused the records.

It is settled law that in claim cases registered under the Act, 1988, the claimants are required to establish their case on the touchstone of preponderance of probability and the standard of proof beyond reasonable doubt is not applied while inquiring into the case. Further, in Ravi vs Badrinarayan & Ors. 2011 (4) SCC 693, it was observed that mere delay in registering a First Information Report regarding the accident cannot be a ground to doubt the case of the claimants. It was observed by the Supreme Court that if there was no indication of fabrication or concoction to implicate innocent persons then, even if there was a delay in lodging the First Information Report, the claim case cannot be dismissed merely on that ground and delay in lodging the First Information Report cannot be treated as fatal to the case of the claimants. It is the case of the claimants that the accident occurred on 22.12.2014. The injured died on 6.1.2015. The injured, according to the claimants, was admitted in the Trauma Centre in K.G.M.U. on 22.12.2014 itself. Apparently, the family of the deceased was occupied in the treatment of the deceased. From the said reason, the case of the claimants cannot be rejected only on the ground that the First Information Report was registered nine days after the incident.

In his testimony, the plaintiff witness no. 2, who is an eye-witness of the accident, has stated that he and the deceased, were going on their bicycles to join their duties and when they were in front of Bajrang Hospital, the offending vehicle hit the bicycle of the deceased from the front resulting in injuries to Sushil. It has been stated by P.W. - 2 that he initially got Sushil admitted in Bajrang Hospital from where the deceased was referred to Trauma Centre in K.G.M.U. and consequently he got the deceased admitted in Trauma Centre in K.G.M.U. on 22.12.2014 itself. The fact that the injured / deceased was admitted in the Trauma Centre on 22.12.2014 has also been proved by the plaintiff witness no. 1, who is the wife of the deceased. The discharge slip issued by the Medical Officer on duty of K.G.M.U. shows that the deceased was admitted in the Trauma Centre on 23.12.2014. However, Paper No. C-22/15 which is a receipt issued by the Care Diagnostic Private Ltd. shows that the deceased was referred by Doctor Bajrang Hospital on 22.12.2014 and Paper Nos. C-24/1 and C-24/2 also show that the deceased was given medicine by the K.G.M.U. Welfare Society, Lucknow on 22.12.2014 itself. Paper Nos. C-24/1 and C-24/2 indicate that the injured was an In-patient on the date the receipts were issued, i.e., 22.12.2014. Paper Nos. C-24/1 and C-24/2 have not been denied by the defendants and the authenticity of the said documents have not been questioned by the defendants. The Medical Officer on duty who issued the discharge certificate was not examined by either of the parties. There can be many reasons for the entry in the discharge slip showing that the injured was admitted in the Trauma Centre on 23.12.2014. The said entry could be an error caused due to over sight or could be because the deceased may not have been officially admitted on the said date in the Trauma Centre because of shortage of space / beds and may have been admitted on the next date after space / bed was available. It is common knowledge that many times patients are unofficially acommodated in the verandahs and galleries of the hospitals because of shortage of space and beds in the hospitals but are treated by the doctors and are admitted officially only when beds are vacated by the already admitted patients. The aforesaid practice explains the entries in Paper Nos. C-24/1 and C-24/2. It may also be noted that P.W. - 2 who got the deceased admitted in Trauma Centre was not cross-examined by the opposite parties regarding the entries in the discharge slip even though from the cross-examination of P.W. - 1, it appears that the attention of P.W. - 1 was brought to the aforesaid entry in the discharge slip. P.W. - 1 is not an eye-witness of the incident or the fact regarding admission of the injured / deceased in the Trauma Centre on 22.12.2014 and in her testimony, P.W. - 1 has stated that she did not go to K.G.M.U. but has testified that her husband was taken to K.G.M.U. from Bajrang Hospital by P.W. - 2 on the same date. In light of the aforesaid, the testimony of P.W. - 2 cannot be rejected merely on the ground that the date of admission of the deceased in the Trauma Centre as stated by P.W. - 1 and P.W. - 2 is different from the date of his admission in the Trauma Centre as recorded in the discharge slip.

It was also argued by the counsel for the appellant that the site plan also falsifies the testimony of P.W. - 2 in as much as in his testimony, the P.W. - 2 has stated that the accident occurred in front of Bajrang Hospital while the site plan shows that the accident occurred in front of Heera Complex. I have perused the site plan prepared by the police in Case Crime No. 476 of 2014 which is part of the paper book submitted by the appellant. A perusal of the site plan shows that both Heera Complex and Bajrang Hospital are adjacent to the road on which the accident took place. Heera Complex is on the north side of the road while Bajrang Hospital is on the south side of the road. The site plan does show that the accident occurred on the north side of the road which is adjacent to Heera Complex. But in light of the locations of Bajrang Hospital and Heera Complex as well as the fact that the injured was immediately shifted to Bajrang Hospital, not much importance is to be given to the difference between the statement of P.W. - 2 and the site plan regarding location of different buildings.

The route chart of the offending vehicle filed by the defendant does not by itself disprove the case of the claimants as there is no evidence that the offending vehicle had scrupulously followed the schedule given in the route chart.

The accident has been proved by the testimony of P.W. - 2, who is an eye-witness of the incident. A charge-sheet has also been filed by the police against the driver of the offending vehicle in Case Crime No. 476 of 2014. The post-mortem indicates that death occurred due to ante-mortem injuries and the nature of the injuries shows that the same were caused in an accident. In light of the aforesaid, the evidence on record proves that Sushil was injured on 22.12.2014 in the accident that took place due to rash and negligent driving of the offending vehicle and subsequently died due to the injuries caused in the accident. The findings of the Tribunal on Issue No. 1 are affirmed.

So far as the findings of the Tribunal on Issue No. 2 is concerned, there is no evidence to show any contributory negligence of the deceased. The site plan submitted by the police indicates that the deceased was on the left side of the road. In view of the aforesaid, the findings of the Tribunal on Issue No. 2 are also affirmed.

So far as the findings on Issue Nos. 3 and 4 are concerned, the same have not been challenged by the Insurance Company in their present appeal. The policy documents filed by the owner of the vehicle showed that the vehicle was insured with the appellant from 15.10.2014 to 14.10.2015. The accident took place on 22.12.2014. The vehicle was insured with the appellant on the date of accident. Similarly, the driver of the offending vehicle was issued a driving licence on 19.10.2004 which was valid till 18.7.2023. In light of the aforesaid, the findings of the Tribunal on Issue Nos. 3 and 4 are also affirmed.

So far as the grant of compensation to the claimants is concerned, the Tribunal has held the age of the deceased as 24 years old. The findings of the Tribunal on the age of the deceased has not been challenged either by the claimants or the appellant. In light of the aforesaid, the compensation has to be computed holding the age of the deceased to be 24 years.

It was the case of the claimants that the deceased worked as a Loader with Usha Company and with private traders and earned Rs.9,000/- per month. The said fact has been testified by P.W. - 1. In his testimony, the P.W. - 2 has also stated that the deceased was going with him to join his duty at Usha Company and they were the employees of the contractor engaged by the Usha Company and did the job of a Loader. However, there is no document on record to prove the income of the deceased. The Tribunal has computed the compensation payable to the claimants on the notional income of the deceased as Rs.100/- per day.

In New India Assurance Co. Ltd. vs Smt. Resha Devi & Others (2017) 3 ADJ 685, a Division Bench of this Court held that the notional income of an unskilled labour cannot be taken to be less than Rs.200/- per day. The observations of this Court in Paragraph Nos. 9 and 11 are reproduced below :-

"9. The next submission of the learned counsel for the appellant that income of Rs.100/- per day presumed by the tribunal is extremely on higher side is without any force and not liable to be accepted. Tribunal in recording the said claim has relied upon the judgment of the Hon'ble Apex Court in the case of Laxmi Devi and another Vs. Mohammad Tabbar and others, 2008 (2) TAC 394 SC wherein notional income to unskilled labour was presumed to be Rs.100/- per day. Much water has flown since 2008. It is a matter of common knowledge that with the rise in price index, there has been considerable increase in the wages of salaried as well as self employed person. The average income of even a daily labour in 2014 when the accident took place cannot be presumed to be less than Rs.200/- per day. In our considered opinion, the tribunal committed a manifest error of law in presuming the notional income of the deceased to be Rs.100/- per day.

10. .....

11. There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations. Obviously award of damages would depend upon the particular facts and circumstances of the case but the element of fairness in the amount of compensation so determined is the ultimate guiding factor. In such view of the matter, presumption of Rs.100/- per day as notional income even for a unskilled labour in the year 2014 appears to us to be frugal and by no stretch of imagination to be just even the minimum wages fixed by the State Government is much higher than that looking to the rise in cost index. We are of the considered upon that notional income of an unskilled labour could not be less than Rs.200/- per day."

(emphasis added)

In the present case, the accident occurred in 2014. Following the judgment of the Division Bench of this Court, it would be just to treat the notional income of the deceased as Rs. 200/- per day, i.e., Rs.6,000/- per month.

The opposite party no. 1 / claimant no. 1 is the father of the deceased, opposite party no. 2 / claimant no. 2 is the mother of the deceased, opposite party no. 3 / claimant no. 3 is the wife of the deceased and opposite party no. 4 / claimant no. 4 is the minor son of the deceased. In United India Insurance Company Ltd. vs. Satinder Kaur @ Satwinder Kaur & Ors., 2021 (11) SCC 780, it has been held that ''subject to evidence to the contrary, the father was likely to have his own income and would not be considered to be a dependent, hence, the mother alone will be considered to be a dependent.' The claimants have not filed any evidence to show that the father of the deceased had no income of his own. In view of the judgment of the Supreme Court in Satinder Kaur (supra), only the mother, the wife and the minor son of the deceased shall be considered his dependent for deciding the deductions to be made towards personal and living expenses of the deceased. It was held in Sarla Verma (Smt) & Ors. vs Delhi Transport Corporation & Anr. 2009 (6) SCC 121 that where the dependent family members of the deceased are 2 to 3, 1/3 is to be deducted towards personal and living expenses of the deceased. The Tribunal has wrongly deducted 1/4 as personal and living expenses of the deceased on the premise that more than three persons were dependent on the deceased. In view of the aforesaid, 1/3 is to be deducted towards personal and living expenses of the deceased.

The deceased was 24 years old and, therefore, according to Sarla Verma (supra), a multiplier of 18 has to be applied while computing the compensation payable to the claimants.

In Kirti & Anr. vs Oriental Insurance Company Ltd. 2021 (2) SCC 166, the Supreme Court has held that adding future prospects where compensation is computed on the notional income of the deceased is a component of just compensation. The observations of the Supreme Court in Paragraph Nos. 13 and 39 of the aforesaid judgment are reproduced below :-

"13. Given how both deceased were below 40 years and how they have not been established to be permanent employees, future prospects to the tune of 40% must be paid. The argument that no such future prospects ought to be allowed for those with notional income, is both incorrect in law and without merit considering the constant inflation-induced increase in wages. It would be sufficient to quote the observations of this Court in Hem Raj v. Oriental Insurance Co. Ltd., as it puts at rest any argument concerning non-payment of future prospects to the deceased in the present case:

"7. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made."

39. Taking the above rationale into account, the situation is quite clear with respect to notional income determined by a court in the first category of cases outlined earlier, those where the victim is proved to be employed but claimants are unable to prove the income before the court. Once the victim has been proved to be employed at some venture, the necessary corollary is that they would be earning an income. It is clear that no rational distinction can be drawn with respect to the granting of future prospects merely on the basis that their income was not proved, particularly when the court has determined their notional income."

(emphasis added)

Thus, the future prospects have to be added in the notional income of the deceased. The deceased was 24 years old. The proportion of the income to be added in the future prospects of the deceased shall be considered subsequently in the judgment. At this stage, it may be noted that 50% has been added by the Tribunal as future prospects in the income of the deceased.

It was argued by the counsel for the claimants that the claimants were entitled to separate compensation for loss of consortium as awarded in Magma General Insurance Company Ltd. vs. Nanu Ram 2018 SCC OnLine SC 1546 and also for loss of love and affection and the amount to be awarded in the aforesaid categories is to be decided on the basis of the amounts awarded in National Insurance Company Ltd. vs Pranay Sethi & Ors. (2017) 16 SCC 680 as well as Magma General Insurance (supra). It was also argued by the counsel for the claimants that the claimants are entitled to compensation for loss of estate and funeral expenses as held in Pranay Sethi (supra).

There is some difference between the parameters for award of compensation as prescribed by Rule 220-A and the principles for award of compensation as laid down by the Supreme Court in its different judgments. Two differences which are relevant for the present case are considered below.

Rule 220-A (3) of the Rules, 1998 provides that future prospects of a deceased shall be added in the actual salary or minimum wages of the deceased as under :-

(i) Below 40 years of age : 50% of the salary

(ii) Between 40-50 years of age : 30% of the salary

(iii) More than 50 years of age : 20% of the salary

(iv) When wages not sufficiently proved. : 50% towards inflation and price index.

In Pranay Sethi (supra), the Supreme Court endorsed addition of 50% as future prospects in the established income of the deceased if he was below 40 years and was in a permanent job, 30% if he was between 40 and 50 years and 15% if the deceased was between 50 to 60 years. It was further laid down in Pranay Sethi (supra) that if the deceased was self employed or on a fixed salary, 40% should be added as future prospects in his established income if he was less than 40 years, 25% should be added if he was between the age of 40 and 50 years and 10% should be added if he was between 50 and 60 years. In Pranay Sethi (supra), it was laid down that there should be no addition of future prospects in the income of the deceased if he was more than 60 years. The relevant observations of the Supreme Court in Pranay Sethi (supra) are reproduced below : -

"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 thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari. 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.

59. In view of the aforesaid analysis, we proceed to record our conclusions:

59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

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

(emphasis added)

The difference between the parameters prescribed by Rule 220-A(3) for addition of future prospects in the income of the deceased and the norms, for the said purpose, laid down in Pranay Sethi (supra) are evident. The difference is not only regarding the percentage of the income of the deceased which is to be added as future prospects while determining compensation but also regarding the age of the deceased till which future prospects are to be added to his income. Pranay Sethi (supra) recommends that there should be no addition of future prospects if the deceased was above 60 years while Rule 220-A(3) provides for addition of 20% as future prospects in the income of the deceased if he was above 50 years and prescribes no maximum age after which future prospects are not to be added in the income of the deceased. Further, for the purposes of adding future prospects, Rule 220-A(3) does not differentiate between a deceased who had a permanent job and a deceased who was on a fixed salary or a deceased whose income is determined on minimum wages while in Pranay Sethi (supra) different norms have been prescribed for adding future prospects in cases of deceased who had a permanent job and a deceased who was on a fixed salary. No standard has been laid down in Pranay Sethi (supra) for adding future prospects in case the income of the deceased is determined on the basis of minimum wages payable to skilled, semi-skilled or unskilled worker at the relevant time.

The other difference between the principles laid down by the Supreme Court in its different judgments and the norms prescribed by Rule 220-A is regarding the different category of non-pecuniary damages payable as compensation.

The Supreme Court in Pranay Sethi (supra) referred to only three conventional heads, namely, loss of estate, loss of consortium and funeral expenses which are to be awarded to the claimants under Section 166 of the Act, 1988. In Pranay Sethi (supra), it was laid down that compensation under the aforesaid conventional heads should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/-, respectively. In Magma General (supra), the Supreme Court awarded compensations for both loss of love and affection and for loss of consortium. The compensation for loss of love and affection was determined as Rs.50,000/- and the compensation for loss of consortium, in accordance with Pranay Sethi (supra), was determined as Rs.40,000/-. The compensation under the aforesaid heads were paid separately to each of the claimants by the Supreme Court in Magma General (supra). However, subsequently, the Supreme Court in Satinder Kaur (supra) held that loss of love and affection is included in loss of consortium and, therefore, there was no justification to award compensation towards loss of love and affection as a separate category. In Satinder Kaur (supra), the Supreme Court observed that in Pranay Sethi (supra) the Constitution Bench had held that in death cases, compensation would be awarded only under three conventional heads, viz - loss of estate, loss of consortium and funeral expenses. The aforesaid principle was reiterated by the Supreme Court in The New India Assurance Company Ltd. vs. Smt. Somwati & Ors., (2020) 9 SCC 644.

However, Rule 220-A(4) of the Rules, 1998 identifies 'loss of love and affection' and 'loss of consortium' as separate categories of non-pecuniary damages. Rule 220-A(4) of the Rules, 1998 is reproduced below :-

"(4) The non-pecuniary damages shall also be payable in the compensation as follow :-

(i) Compensation for loss of estate : Rs. 5,000 to Rs. 10,000

(ii) Compensation for loss of consortium : Rs. 5,000 to Rs. 10,000

(iii) Compensation for loss of love and affection : Rs. 5,000 to Rs. 15,000

(iv) Funeral expenses costs of transportation of body : Rs. 5,000 or actual expenses whichever is less

(v) Medical expenses : actual expenses proved to the satisfaction of the Claims Tribunal."

A reading of the judgments of the Supreme Court in Pranay Sethi (supra), Satinder Kaur (supra) and Smt. Somwati (supra) do not indicate that Rules, 1998 were brought to the notice of the Supreme Court in the aforesaid cases. Subsequently, the Supreme Court in New India Assurance Company Ltd. vs. Urmila Shukla & Ors. 2021 SCC OnLine SC 822 held that if an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay Sethi (supra) cannot be taken to have limited the operation of such statutory provision especially when the validity of the statute was not put under challenge. It was observed by the Supreme Court that 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. The issue before the Supreme Court in Urmila Shukla (supra) was whether in accordance with Rule 220-A(3)(iii), 20% was to be added as future prospects in the income of the deceased if the deceased was above 50 years or whether the addition is to be 15% as laid down in Pranay Sethi (supra). The Supreme Court, in Urmila Shukla (supra), applying the principle stated before, affirmed the award of the Tribunal and the High Court which had added 20% as future prospects in the income of the deceased who was above 50 years. The observations of the Supreme Court from Paragraph Nos. 8 to 11 are reproduced below :-

"8. It is submitted by Mr. Rao that the judgment in Pranay Sethi does not show that the attention of the Court was invited to the specific rules such as Rule 3(iii) which contemplates addition of 20% of the salary as against 15% which was stated as a measure in Pranay Sethi. In his submission, since the statutory instrument has been put in place which affords more advantageous treatment, the decision in Pranay Sethi ought not to be considered to limit the application of such statutory Rule.

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

10. The discussion on the point in Pranay Sethi was from the standpoint of arriving at "just compensation" in terms of Section 168 of the Motor Vehicles Act, 1988.

11. If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision 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 50-60 years as stated in Pranay Sethi cannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid."

(emphasis added)

There is no reason or logic to restrict the principle enumerated in Urmila Shukla (supra) only to the difference between Rule 220-A(3)(iii) and the norms laid down in Pranay Sethi (supra). The principle enumerated in Urmila Shukla (supra) is that if a statutory instrument affords greater or better benefits, said statutory instrument shall operate and the norms laid down by different judicial precedents shall not limit the operation of such statutory instrument. It is to be noted that the statutory instrument shall prevail over the norms laid down by judicial precedents only to the extent it gives greater or better benefit than the judicial precedents. If the norms laid down by judicial pronouncements give greater or better benefit than the formula devised by the statutory instrument, the judicial precedents shall prevail over the statutory instrument. In other words, just compensation under Section 168 of the Act, 1988 is to be determined applying the norms prescribed in Rule 220-A and the principles laid down by the judicial precedents, whichever gives greater or better benefit to the claimants.

Rule 220-A(4) of Rules, 1998 identifies 'loss of consortium' and 'loss of love and affection' as different heads for award of non-pecuniary damages. In that respect, Rule 220-A(4) gives better benefit than the principles laid down by the Supreme Court in Satinder Kaur (supra) which held that 'loss of love and affection' is included in ''loss of consortium' and no separate compensation is to be paid for loss of love and affection. However, so far as the amount to be awarded under the conventional heads is concerned, the amounts prescribed in Pranay Sethi (supra) and Magma General (supra) give greater benefit than Rule 220-A.

Thus, the categories under which the non-pecuniary damages are to be awarded is to be decided in light of Rule 220-A(4) and the amount to be awarded under the aforesaid categories is to be the amount fixed by the Supreme Court in Pranay Sethi (supra) and Magma General (supra). Further, future prospects is to be added in the income of the deceased on the formula prescribed in Rule 220-A(3) of the Rules, 1998.

It is clarified that compensation on the aforesaid principle is to be determined in cases of accidents that took place after 26.9.2011 as Rule 220-A was inserted in Rules, 1998 with effect from 26.9.2011.

Applying the aforesaid principle in the present case, the compensation is to be determined on notional income of the deceased which in turn, is to be determined on the minimum wages of an unskilled labour and as the deceased was 24 years old, therefore, in accordance with the Rules, 1998, 50% has to be added as future prospects in his notional income while determining the multiplicand.

It is further held that the claimants were entitled to separate compensations for both 'loss of consortium' and for 'loss of love and affection.'

In light of the principles enumerated above, the compensation to be awarded to the claimants is computed as follows :-

(1) Monthly income of the deceased = Rs.6,000/- per month, i.e., Rs.72,000/- per annum.

(2) Addition of 50% as future prospects = Rs.36,000/-.

Thus, total income of the deceased for purposes of compensation = Rs.1,08,000/-

(3) Deductions of 1/3 towards personal and living expenses of the deceased = Rs.36,000/-

(4) Thus, the multiplicand = Rs.72,000/- (Rs.1,08,000 - Rs. 36,000)

(5) Thus, the pecuniary damages payable to the claimants = Rs. 12,96,000/- (72,000 x 18)

(6) Loss of filial consortium to opposite party no. 1 / claimant no. 1 and opposite party no. 2 / claimant no. 2 = Rs.40,000 x 2 = Rs.80,000/- (Rs.40,000 to each of the claimants).

(7) Loss of spousal consortium to opposite party no. 3 / claimant no. 3 = Rs.40,000/-.

(8) Loss of parental consortium to opposite party no. 4 / claimant no. 4 = Rs.40,000/-.

(9) Loss of love and affection to opposite party nos. 1 to 4 / claimant nos. 1 to 4 = Rs.50,000 x 4 = Rs.2,00,000/- (Rs.50,000 to each of the claimants).

(10) Loss of estate = Rs.15,000/-.

(11) Funeral expenses = Rs.15,000/-.

(12) Medical expenses in the treatment of the injured / deceased = Rs.25,078/-

Thus, total compensation = Rs.17,11,078/- [Adding Item Nos. 5 to 12]

Thus, it is held that the claimants are entitled to a compensation of Rs.17,11,078/-. The claimants shall be entitled to interest at the rate of 7% per annum as awarded by the Tribunal. First Appeal From Order No. 817 of 2016 is dismissed and First Appeal From Order No. 51 of 2018 is allowed and the award of the Tribunal is modified to the aforesaid extent.

The pecuniary damages determined above at Item No. 5 along with the interest accruing on the same shall be divided equally between opposite party no. 3 / claimant no. 3 and opposite party no. 4 / claimant no. 4. The opposite party no. 3 / claimant no. 3 shall also be paid the compensation for loss of spousal consortium, loss of estate, funeral expenses and loss of love and affection as computed above along with the interest accruing on the same. The opposite party nos. 1 and 2 / claimant nos. 1 and 2 shall be paid the compensation computed above for loss of filial consortium and for loss of love and affection along with the interest accruing on the same. The opposite party no. 4 / claimant no. 4 shall be paid the compensation computed above for loss of parental consortium and for loss of love and affection along with the interest accruing on the same. The medical expenses incurred on the treatment of the deceased shall be divided equally between opposite party no. 1 / claimant no. 1 and opposite party no. 3 / claimant no. 3.

The balance amount / excess amount as awarded by this Court in the present appeals shall be deposited by the National Insurance Company Ltd., Lucknow in the Tribunal within three months from today. The amount so deposited by the National Insurance Company Ltd. under the present order of this Court, shall in turn be deposited by the Motor Accident Claims Tribunal, Lucknow in the highest interest bearing fixed deposit schemes, either of the post office or of any nationalized bank. The receipts of the fixed deposit shall be handed over to the claimants who shall be entitled to withdraw the maturity amount on the maturity of the fixed deposits. The maturity amount shall be credited by the bank/post office in any savings account held by the claimants singly. The concerned bank or post office shall not permit any loan or advance against the fixed deposits made in favour of the claimants. The Tribunal, while depositing the amount in any fixed deposit scheme, shall communicate the directions issued by this Court to the concerned bank/post office.

With the aforesaid directions and observations, First Appeal From Order No. 817 of 2016 is dismissed and First Appeal From Order No. 51 of 2018 is allowed. Parties shall bear their own cost.

The office shall transmit the records of the case to the Tribunal, at the earliest.

Order Date :- 20.5.2022

Satyam