Allahabad High Court
New India Assurance Company Ltd. Thru ... vs Smt. Washeema Bano And Ors. on 10 June, 2022
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. RESERVED ON 15.12.2021 DELIVERED ON 10.6.2022 Court No. - 24 Case :- FIRST APPEAL FROM ORDER No. - 566 of 2016 Appellant :- New India Assurance Company Ltd. Thru Branch Manager Respondent :- Smt. Washeema Bano And Ors. Counsel for Appellant :- Asit Srivastava Counsel for Respondent :- Satendra Nath Rai With Case :- FIRST APPEAL FROM ORDER No. - 145 of 2017 Appellant :- Smt. Washeema Bano And 7 Others Respondent :- Harpreet Singh And 2 Others Counsel for Appellant :- Satendra Nath Rai Counsel for Respondent :- Asit Srivastava Hon'ble Salil Kumar Rai,J.
1. Both the First Appeals From Order have been filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, 'Act, 1988') and arise from the same award of the Tribunal, i.e., the judgment and award dated 26.3.2016 passed by the Motor Accident Claims Tribunal/FTC Court, District-Lakhimpur Kheri (hereinafter referred to as, 'Tribunal') in Motor Accident Claim Petition No. 339 of 2014 and were therefore connected and have been heard together.
2. Motor Accident Claim Petition No. 566 of 2016 has been filed by the Insurance Company, which was one of the defendant in Motor Accident Claim Petition No. 339 of 2014 and has been filed to set aside the award dated 26.3.2016. Motor Accident Claim Petition No. 145 of 2017 has been filed by the claimants for enhancement of compensation. The Insurance Company is the appellant in F.A.F.O. No. 566 of 2016 and shall be referred as Insurance Company in the present judgement, the claimants are respondent Nos. 1 to 8 in the aforesaid appeal and shall be referred as claimants in the present judgement. The owner of the offending vehicle is respondent No. 9 in F.A.F.O. No. 566 of 2016 and shall be referred as the owner of the vehicle. The driver of the offending vehicle has been arrayed as respondent No. 10 in F.A.F.O. No. 566 of 2016 and shall be referred as driver of the offending vehicle in the present judgement.
3. Claimant No. 1 is the wife of the deceased, claimant No. 2 is the mother of the deceased, claimant Nos. 3 to 7 are the sons of the deceased and claimant No. 8 is the daughter of the deceased. On the date of the accident claimant Nos. 3 to 6 were major and between 18 to 23 years.
4. The order-sheet of the First Appeal From Order No. 145 of 2017 shows that vide order dated 13.12.2017 a Division Bench of this Court had condoned the delay in filing the aforesaid appeal. However, it appears that regular number has not yet been allotted to First Appeal From Order No. 145 of 2017 and the records reflect the defective number. However, as the delay in filing the appeal has been condoned, the Court proceeded to hear the appeal on merits. Apart from the aforesaid, the order-sheet of the case also indicates that service of notice on the owner of the vehicle was held to be sufficient, but service of notice on the driver of he offending vehicle, who has been arrayed as respondent No. 2 in First Appeal From Order No. 145 of 2017, was held not to be sufficient by noting dated 1.3.2019 of the Joint Registrar (J)(L). However, as the Insurance Company has not questioned the award of the Tribunal so far as the award holds it liable to indemnify the owner of the vehicle, therefore, the Court has proceeded to hear both the appeals on merits without waiting for service of notice of the appeal on the driver of the offending vehicle.
5. The facts of the case are that the claimants instituted Motor Accident Claim Petition Case No. 339 of 2014 before the Tribunal alleging that one Rafiq (hereinafter referred to as, ''deceased') was killed in an accident which happened on 1.8.2014 due to rash and negligent driving of a tanker bearing Registration No. UP 31 T 5208 (hereinafter referred to as, ''offending vehicle'). It was stated in the claim petition that on 1.8.2014 at 4:30 p.m. the deceased was going on a motorcycle to join his duties when the offending vehicle hit the motorcycle from the front as a result of which the deceased suffered injuries and subsequently died on 17.8.2014 due to the aforesaid injuries. It was further stated in the claim petition that the deceased was aged 45 years and was working as Fodder Cutter in the Forest Department getting a salary of Rs. 26,280/- per month and the claimants were dependent on the deceased. On the aforesaid pleadings the claimants sought compensation of Rs. 50 lacs for the death of Rafiq. It is also on record that a First Information Report registering Case Crime No. 630 of 2014 under Sections 279, 358 and 427 I.P.C. was registered against the driver of the offending vehicle on 4.8.2014 and a charge-sheet against the driver has been filed in the aforesaid case.
6. The owner and the driver of the offending vehicle as well as the Insurance Company contested the appeal and filed their written statements. In their written statements the owner and driver of the offending vehicle denied the involvement of the offending vehicle in the accident and also the allegation regarding negligence of the driver in causing the accident. The Insurance Company also filed its written statement contesting the claim petition and, apart from denying the involvement of the vehicle in the accident, the Insurance Company also pleaded that the accident occurred because of the negligence of the deceased. It was also pleaded by the Insurance Company that the deceased was more than 55 years of age at the time of accident and did not have a valid driving license at the time of accident.
7. On the pleadings of the parties, the Tribunal framed five issues. Issue No. 1 was as to whether on 1.8.2014 at 4:30 p.m. the deceased was injured in an accident caused due to rash and negligent driving of the offending vehicle and died on 17.8.2014 because of the injuries caused in the accident. Issue No. 2 was as to whether at the time of accident the driver of the offending vehicle had a valid driving license. Issue No. 3 was as to whether at the time of the accident the offending vehicle was insured with the Insurance Company and Issue No. 4 was as to whether at the time of the accident the offending vehicle was being driven contrary to the terms of the insurance contract. Issue No. 5 framed by the Tribunal was regarding entitlement of the claimants to compensation, the amount of compensation they were entitled to and the defendant liable to pay compensation.
8. Before the Tribunal, the claimants filed the First Information Report registering Case Crime No. 630 of 2014 (marked as Paper No. 6Ga and 28Ga/2 in the Tribunal), the Post-Mortem Report of the deceased (marked as Paper No. 8Ga in the Tribunal), the Charge-sheet filed against the driver of the offending vehicle (marked as Paper No. 28Ga/10 in the Tribunal), the site plan prepared by the Investigating Officer in Case Crime No. 630 of 2014 (marked as Paper No. 28Ga/8in the Tribunal), the driving license of the deceased (marked as Paper No. 46Ga in the Tribunal), pay bills of the deceased (marked as Paper Nos. 48Ga to 50Ga in the Tribunal), service book of the deceased (marked as Paper No. 47Ga in the Tribunal) and receipts showing medical expenses incurred in the treatment of the deceased (marked as paper Nos. 30Ga/1 and 30Ga/135 in the Tribunal). The owner and the driver of the offending vehicle filed the driving license of the driver of the offending vehicle, fitness certificate and the insurance cover note of the offending vehicle as well as tax receipts relating to the offending vehicle.
9. In the Tribunal, the claimant No. 1 deposed as plaintiff-witness No. 1 and one Mohd. Farooq, who is the eye-witness of the incident deposed as plaintiff-witness No. 2.
10. The Tribunal after considering the testimony of P.W. 2, the First Information Report, the charge-sheet filed against the owner of the offending vehicle, the site plan and the postmortem report of the deceased, decided Issue No. 1 in favour of the claimants and against the defendants. While recording its findings on issue No. 1, the Tribunal rejected the arguments of the defendants regarding any contributory negligence by the deceased.
11. Issue Nos. 2, 3 and 4 were decided in favour of the owner of the offending vehicle and against the Insurance Company.
12. So far as issue No. 5 is concerned, the Tribunal held the Insurance Company liable to pay compensation and awarded a total compensation of Rs. 23,32,640/- with 7% simple interest from the date of filing of the claim petition. The Tribunal held the age of the deceased to be 52 years on the basis of his driving license and therefore applied a multiplier of 11 while determining the loss of dependency caused due to the death of the deceased. Relying on the salary bills of the deceased, the Tribunal determined the multiplicand as Rs. 26,280/- and deducted 1/3 as personal and living expenses of the deceased. The Tribunal did not make any allowance for future prospects while determining the loss of dependency and paid Rs. 5,000/- for funeral expenses, loss of love and affection and loss of consortium and Rs. 10,000/- for medical expenses incurred by the claimants in the treatment of the deceased. The Tribunal has awarded compensation only to the claimant Nos. 1, 2, 7 and 8 and has refused compensation to respondent Nos. 3 to 6 on the ground that they were major at the time of accident.
13. It was argued by the counsel for the Insurance Company that in its judgement and award dated 26.3.2016 the Tribunal has erroneously shifted the burden of proof on the defendants even though the settled law is that the burden to prove the negligence of the driver of the offending vehicle in case of accident is on the claimants. It was argued that in his cross-examination, the P.W. 2 had admitted, that half of the road on the right side of the offending vehicle was vacant when the offending vehicle hit the motorcycle and the width of the road was 15 feet, which proves that almost 7.5 feet on the left side of the motorcycle of the deceased was vacant when the offending vehicle allegedly hit the motorcycle and, therefore, the deceased could have easily avoided the accident if he was careful. It was argued that the accident as shown in the site plan which shows that the offending vehicle hit the motorcycle of the deceased on the right side of the road, is not corroborated by the testimony of P.W. 2 and, therefore, can not be relied upon to accept the plea of the claimants. It was argued that the Tribunal has misread the documentary and oral evidence on record which clearly went to show that the accident was not caused due to the negligence of the driver of the offending vehicle. It was argued that for the aforesaid reasons the judgement and award dated 26.3.2016 passed by the Tribunal is liable to be set aside.
14. Rebutting the contention of the counsel for the appellant, the counsel for the claimants has supported the reasons given by the Tribunal for its finding on issue No. 1. It was argued by the counsel for the claimants that the oral and the documentary evidence on record conclusively proved that the deceased was injured in the accident and died because of the injuries and the accident took place due to the negligence of the driver of the offending vehicle. The counsel for the claimants has argued that the Tribunal, however, has awarded very less compensation to the claimants. It was argued that the postmortem report of the deceased showed that deceased was 45 years old and, therefore, a multiplier of 14 had to be applied while determining the pecuniary damages payable to the claimants. It was argued that the Tribunal has wrongly deducted 1/3 as personal and living expenses of the deceased and has also erred in not adding future prospects in the income of the deceased while determining the pecuniary damages. It was further argued that the claimants were entitled to compensation for loss of estate, funeral expenses and separate compensations for loss of consortium as well as for loss of love and affection as determined in National Insurance Company Ltd. Vs. Pranay Sethi & Others, (2017) 16 S.C.C. 680 and Magma General Insurance Company Ltd. vs. Nanu Ram, (2018) SCC OnLine SC 1546 and as provided in U.P. Motor Vehicle Rules, 1998 (hereinafter referred to as, ''Rules, 1998'). It was further argued that the claimants had proved the medical expenses of Rs. 40,000/- incurred in the treatment of the deceased and the Tribunal has wrongly awarded only Rs. 10,000/- against the medical expenses. It was argued that for the aforesaid reasons, the compensation awarded by the Tribunal is to be enhanced, First Appeal From Order No. 566 of 2016 is liable to be dismissed and First Appeal From Order No. 145 of 2017 is to be allowed.
15. I have considered the submissions of the counsel for the parties and perused the records of the Tribunal.
16. The first issue that arises for determination by this Court is as to whether the accident which took place on 1.8.2014 injuring the deceased and ultimately resulting in his death on 17.8.2014 was caused due to rash and negligent driving of the offending vehicle by its driver.
17. It is settled law that the standard of proof required in motor accident claim cases under the Act is preponderance of probabilities and not that of proof beyond reasonable doubt. The strict principles of evidence and standard of proof required in a criminal trial are not applicable in accident cases registered under the Act. In this context, the observations of the Supreme Court in Anita Sharma Vs. New India Assurance Company Limited & Another, (2021) 1 S.C.C. 171 is reproduced below :-
"21. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true.
22. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz wherein this Court reiterated that: (SCC p. 650, para 7) "7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal RTC)."
(Emphasis added)
18. The plaintiff-witness No. 2, i.e., Mohd. Farooq, who was riding on another motorcycle behind the deceased and was an eye-witness of the accident has proved the accident as pleaded in the claim petition. The statement of P.W. 2 in his cross-examination that, at the time of accident half of the road on the right side of the offending vehicle was vacant does not necessarily prove that the accident occurred because of the negligence of the deceased. An eye-witness can only give a rough, and not an exact account, of the width of the road and the position of the vehicles at the time of accident. The statement of P.W. 2 in his cross-examination does not contradict the site plan so far as the position of the vehicles at the time of accident is concerned. The site plan shows that the offending vehicle was initially on its left side, i.e., on the west side of the road, but had turned right and hit the motorcycle of the deceased. The clause ''at the time of accident' in the statement of P.W. 2 can not be read to identify the position of the vehicles at the exact time when the offending vehicle collided with the motorcycle but, on a reading of the testimony of P.W. 2 as a whole, it indicates the position of the offending vehicle slightly before the collision. The site plan which shows that the offending vehicle was initially on the left side but subsequently turned right causing the accident is corroborated by the testimony of P.W. 2. At this stage it would be relevant to note that under Rule 203-A of the Rules 1998, the Investigating Police Officer is enjoined to prepare a site plan of the accident, and submit it to the Claims Tribunal. By virtue of Section 211-A of the Rules, 1998 the site plan submitted under Rule 203-A is presumed to be correct and is to be read in evidence without formal proof unless proved contrary. Rules 203-A and 211-A, are reproduced below :-
"203-A. Duties of Investigating Police Officer-(1) The Investigating Police Officer shall prepare a site plan, drawn on scale as to indicate the layout and width etc. of the road/roads or place as the case may be, the position of Vehicle/Vehicles, or persons, involved and such other facts as the case may be relevant, authenticated by the witnesses and in case no witness is available same shall be recorded, so as to preserved the evidence relating to accident. He shall also get the scene of accident photographed from such angles as to clearly depict the accident, as above, inter-alia for the purpose of proceeding before the Claims Tribunal.
211-A. Presumption about the papers- The reports, certificates and papers submitted or issued under Rules 203-A, 203-C and 203-D shall be presumed to be correct and shall be read in evidence without formal proof unless proved contrary."
19. It may also be noted that there is no plea of any contributory negligence on the part of the deceased by the driver of the offending vehicle in his written statement. The driver of the offending vehicle also did not appear as a witness to prove that the deceased was negligent or not careful and if the deceased was careful the accident could have been avoided.
20. The plea of the claimants that the accident was caused due to rash and negligent driving of the offending vehicle is also proved by the contents of the First Information Report and the fact that charge-sheet against the driver of the offending vehicle has been filed in the aforesaid case. The filing of a charge-sheet against the driver of the offending vehicle prima facie points to his culpability. The charge-sheet is an important piece of evidence in motor accident claim cases where proof of accident required is not proof beyond reasonable doubt, but the case has to be considered on the touchstone of preponderance of probability. In this context the observations of the Supreme Court in Mangla Ram Vs. Oriental Insurance Company Limited & Others, (2018) 5 S.C.C. 656 is reproduced below :-
"27. Another reason which weighted with the High Court to interfere in the first appeal filed by respondents 2 & 3, was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST 4701 was driven rashly and negligently by respondent 2 when it collided with the motorcycle of the appellant leading to the accident. This can be discerned from the evidence of witnesses and the contents of the charge-sheet file by the police, naming Respondent 2. This Court in a recent decision in Dulcina Fernandes, noted that the plea of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance or probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgements already adverted to by us, filing of charge-sheet against Respondent 2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal cases, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal."
(Emphasis added)
21. The observations of the Division Bench of this Court in paragraph Nos. 29 and 30 of its judgement reported in Dr. Anoop Kumar Bhattacharya & Another Vs. National Insurance Co. Ltd., (2021) 12 ADJ 596 are also relevant for the purpose and are reproduced below :-
"29. We may now revert to the original question whether Tribunal was correct in altogether excluding from evidence the documents such as the FIR, the site plan and the charge-sheet, which form part of the police record.
30. We have no doubt in our mind that the answer to the aforesaid question must be a resounding 'No'. The Tribunal opted to ignore the FIR, the charge-sheet and the site plan on the ground that they do not establish either that the driver of the offending truck was involved in the accident or that he was guilty of rash and negligent driving. In our opinion, the Tribunal would have been correct had the standard of proof in claim proceedings been that of beyond reasonable doubt as is the case with criminal proceedings. Even in a criminal proceedings, these documents may be considered to corroborate the evidence led in the Court and not to be completely disregarded or ignored. In any case, corroborative value of the police record cannot be ignored completely though decision may not be based solely upon them. Moreover, the standard of proof in the claim proceedings is not that of proof beyond reasonable doubt but that of preponderance of probabilities. The Tribunal on assessment of evidence before it had to satisfy itself that it was more likely than not that the events as alleged in the claim petition had transpired. To our mind, the documents such as the FIR, the site map and the charge-sheet, which form part of the police record, even though they do not establish the occurrence when considered holistically and prudently could help draw an informed and intelligent inference as to the degree of probability which lends itself to the case set up by a claimant. Was the FIR promptly lodged or was it lodged after an undue delay? Does the site plan conform to the recital contained in the FIR? Do injuries sustained corroborate the recital contained in the FIR? Does the charge-sheet bolster the allegations contained in the FIR? These are the factors which when considered fairly and prudently could help to assess if the case set up by the claimants was more probable or not. As such, we consider it an error to altogether ignore the said documents on the ground that they were not conclusive proof of the occurrence more sosince that is not the goal of claim proceedings in the first place."
(Emphasis added)
22. The First Information Report, the charge-sheet, the site plan and the testimony of the P.W. 2 read jointly and as a whole prove the case of the claimants as pleaded in their claim petition, i.e., the accident was caused due to rash and negligent driving of the offending vehicle.
23. For the aforesaid, reasons the findings of the Tribunal on Issue no. 1 are affirmed.
24. So far as the other point that arises for determination by this Court is regarding the compensation payable to the claimants. Before proceeding further, it would be relevant to note that the Tribunal has denied compensation to claimant Nos. 3 to 6 on the ground that they were major at the time of the accident and were therefore not entitled to compensation. The aforesaid opinion of the Tribunal is not correct. Under Section 166 of the Act, 1988 an application for compensation arising out of an accident may be made, ''by all or any of the legal representatives of the deceased, where death has resulted from the accident'. Proviso to Section 166 of the Act, 1988 provides that where all the legal representatives of the deceased have not joined in the 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. Section 166(1) of the Act, 1988 is reproduced below :-
"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--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased;
(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:
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."
(Emphasis added)
25. Recently, the Supreme Court in National Insurance Company Limited Vs. Birender & Others, (2020) 11 S.C.C. 356 reiterated that the compensation to the legal representatives of the deceased who are major is not limited only to conventional heads and they may be entitled to compensation for loss of dependency even if they are earning members. The observations of the Supreme Court in paragraph Nos. 13 and 14 of its judgement in Birender (Supra) are reproduced below :-
"13. In para 15 of Manjuri Bera, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.
14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/- and Rs.1,50,000/- per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."
(Emphasis added)
26. In view of the law laid down by the Supreme Court in Birender (Supra), the claimant nos. 3 to 6 can not be denied compensation merely because they were major at the time of accident. In the present case, the Tribunal has not only not awarded compensation for loss of dependency to respondent Nos. 3 to 6 but has also not awarded any compensation to respondent Nos. 3 to 6 under the conventional heads. In her affidavit, the P.W. 1, i.e., the claimant No. 1 has stated that family of the deceased which included his major sons, i.e., the respondent Nos. 3 to 6 were dependent on the deceased. However, in her cross-examination the P.W. 1 has stated that the claimant No. 3 was working in Forest Department and the claimant No. 4 was doing odd jobs as casual worker. In light of the testimony of P.W. 2, the claimant no. 4 is to be considered as dependent on the deceased and the claimant No. 3 was entitled to compensation, at least, under the conventional heads. Similarly, the claimant Nos. 5 and 6 were entitled to compensation for loss of dependency as well as under the conventional heads as there is no evidence that they were employed at the time of accident and were not dependent on the deceased. The Tribunal has clearly erred on the aforesaid count and it is held that respondent Nos. 3 to 6 were also entitled to compensation for the death of their father in the accident.
27. In United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Others, (2021) 11 S.C.C. 780, it was held that mother is to be considered as dependent on the deceased. Thus, in the present case there were seven dependents of the deceased. In accordance with the judgement of the Supreme Court in Sarla Verma (Smt) & Others Vs. Delhi Transport Corporation & Another, 2009 (6) SCC 121, 1/5 is to be deducted towards the personal and living expenses from the established income of the deceased while determining the multiplicand.
28. The other question that arises while determining compensation is regarding the multiplier to be applied which is dependent on the age of the deceased. In the claim petition, the age of the deceased was stated to be 47 years. The postmortem report records the age of the deceased as 45 years. The service-book of the deceased shows the date of birth of the deceased to be 27.6.1967, i.e., 47 years at the time of his death. The driving license of the deceased shows the date of birth of the deceased as 1.1.1962, i.e., the deceased was 52 years old at the time of his death. None of the aforesaid documents are conclusive proof of the age of the deceased. However, the date of birth of a licensee on the driving license is recorded on the particulars given by the holder of the driving license himself. Apparently, it was on the information of the deceasd that his date of birth was recorded in the driving license. The Tribunal committed no illegality in holding the age of the deceased to be 52 years on the basis of his driving license. The findings of the Tribunal on the aforesaid issue is affirmed. On the age of the deceased, in accordance with the law laid down in Sarla Verma (Supra), a multiplier of 11 has to be applied while determining the pecuniary damages payable to the claimants.
29. The income of the deceased has been proved by his pay-bills which showed that the deceased earned Rs. 26,280/- per month and the deceased was working as fodder cutter in the Forest Department. The income of the deceased as determined by the Tribunal has not been disputed by the Insurance Company in the present appeal. Thus, the multiplicand is to be determined on the aforesaid income of the deceased.
30. It was argued by the counsel for the claimants that the multiplicand and thus the pecuniary damages had to be determined by adding future prospects in the established income of the deceased in accordance with Rule 220-A of the Rules 1998 and the claimants were also entitled to separate compensations for loss of consortium and loss of love and affection as well as compensations for loss of estate and funeral expenses as determined in Pranay Sethi (Supra) and Magma General Insurance (Supra).
31. 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.
32. 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.
33. 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)
34. 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.
35. 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 & Others, (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 & Others, (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)
36. There is no reason 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.
37. 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.
38. 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.
39. 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.
40. The accident in the present case took place on 1.8.2014. Thus, it is held that in accordance with Rule 220-A(3) of the Rules, 1998, 20% had to be added as future prospects in the established income of the deceased while determining the multiplicand. Further, the claimants were entitled separate compensations under both categories, i.e., for loss of love and affection and also for loss of consortium.
41. Apart from the aforesaid, the Tribunal has awarded only Rs. 10,000/- as medical expenses for the treatment of the deceased. The accident occurred on 1.8.2014 and the deceased died on 17.8.2014. The deceased was hospitalized for almost 16 days. The receipts regarding the diagnostics tests, purchase of medicines, payment of ambulance as well as under other heads were filed by the claimants and marked as paper Nos. 30Ga/1 and 30Ga/135 in the Tribunal. The receipts show that approximately Rs. 40,000/- was spent by the claimants on the treatment of the deceased. The receipts filed by the claimants were not rebutted by the defendants including the Insurance Company. In the circumstances, the claimants are entitled to Rs. 40,000/- as medical expenses for the treatment of the deceased.
42. In light of the aforesaid principles, the compensation payable to the claimants is computed as below :-
(a) Pecuniary Damages
(i) Income of the deceased = Rs. 26,280/- per month, i.e., Rs. 26,280x12 = Rs. 3,15,360/- per annum
(ii) Adding 20% as future prospects in the income of the deceased = Rs. 3,15,360 + 63072= Rs. 3,78,432/-
(iii) Deductions towards personal expenses of the deceased (1/5 of his income) = Rs. 75,686.40
(iv) Thus multiplicand = Rs. 3,78,432 - Rs. 75,686.40 = Rs. 3,02,745.60
(v) Applying a multiplier of 11, the total amount of pecuniary damages = Rs. 3,02,745.60 x 11 = Rs. 33,30,201.60 Thus, the pecuniary damages payable to the claimants is Rs. 33,30,201.60
(b) Compensation for loss of estate = Rs. 15,000/-
(c) Compensation for loss of spousal consortium to claimant No. 1 = Rs. 40,000/-
(d) Compensation for loss of filial consortium to claimant No. 2 Rs. 40,000/-
(e) Compensation for loss of parental consortium to claimant Nos. 3 to 8= Rs. 2,40,000/-
(Rs. 40,000x6 and Rs. 40,000/- to each claimant separately)
(f) Compensation for loss of love and affection to the claimants = Rs. 4,00,000/- (Rs. 50,000 x 8, i.e., Rs. 50,000/- to each claimant separately)
(g) Funeral expenses = Rs. 15,000/-
(h) Medical expenses incurred in the treatment of the deceased Rs. 40,000/-
Thus, the total compensation payable to the claimants = Rs. 41,20,201.60 (a+b+c+d+e+f+g+h) which is rounded off as Rs. 41,20,200/-.
43. In view of the aforesaid, it is held that the claimants were entitled to compensation of Rs. 41,20,200/-. It is apparent that the Tribunal has awarded very less compensation to the claimants. The award of the Tribunal is modified to the extent stated above. The compensation as awarded by this Court shall carry the same interest as awarded by the Tribunal.
44. Compensation for pecuniary damages as computed in the present judgement alongwith the interest accruing on the same shall be divided equally amongst all the claimants excepting claimant No. 3. Compensation for funeral expenses and medical expenses alongwith the interest accruing on the same shall be paid exclusively to claimant No. 1. Compensation for loss of estate alongwih the interest accruing on the same shall be divided equally amongst all the claimants. Compensation for loss of consortium and for loss of love and affection alongwith the interest accruing on the same shall be paid as indicated above in Paragraph No. 42.
45. The appellant in F.A.F.O. No 566 of 2016, i.e., The New India Assurance Company Limited shall deposit the balance/excess amount (including the interest) in the Motor Accident Claims Tribunal, Lakhimpur Kheri within three months from today. The amount so deposited by the New India Assurance Company Limited, shall, in turn, be deposited by the Motor Accident Claims Tribunal, Lakhimpur Kheri 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 given to the claimants who shall be entitled to withdraw the maturity amount when the fixed deposits mature. The maturity amount shall be credited by the bank/post office in any savings account of the claimants. 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. In case, the New India Assurance Company Limited fails to deposit the awarded amount within three months from today, the Tribunal shall recover the same from the New India Assurance Company Limited in accordance with law.
46. With the aforesaid directions and observations, the First Appeal From Order No. 566 of 2016 is dismissed and First Appeal From Order No. 145 of 2017 is allowed. Parties shall bear their own cost.
47. Office shall transmit the records of the case to the Tribunal, at the earliest.
Order Date :- 10.6.2022 Anurag/-