Smt. Chandrawati Yadav And Ors. vs Sri Vikas Pathak And Anr.

AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
FIRST APPEAL FROM ORDER No. - 885 of 2012
Smt. Chandrawati Yadav And Ors.
.....Appellant(s)
Versus
Sri Vikas Pathak And Anr.
.....Respondent(s)
Counsel for Appellant(s) : Balendu Shekhar, Mahesh Kumar Yadav
Counsel for Respondent(s) : A. Rafique, Anil Kumar Srivastava
Court No. - 19
HON'BLE SYED QAMAR HASAN RIZVI, J.
1. Sri Balendu Shekar learned counsel for the appellants; Sri A. Rafique,
learned counsel appearing for the respondent no. 1 and Sri Anil Kumar
Srivastava, learned counsel for the respondent no. 2–ICICI Lombard General
Insurance Limited are present.
2. By means of the present Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, the appellants/Claimants have assailed the judgment and
award dated 11.04.2012 passed by the Court of Learned Additional District
and Sessions Judge-02, Lucknow/Motor Accident Claims Tribunal,
Lucknow (hereinafter referred to as the "Learned Tribunal") in Claim
Petition No. 241/2009 (Smt. Chandravati Yadav and Others versus Vikas
Pathak and Others).
3. The facts of the case that culled out from the pleadings are that in a road
accident occurred on 15.04.2009 at 8:00 P.M. on Lucknow-Hardoi Road
near Kushmora falling under the jurisdiction of Police Station Kakori,
District Lucknow, the husband of appellant no. 1 and father of appellants
no. 2 to 4 (Late) Suresh Chandra Yadav, lost his life. It is pleaded by the
Appellants that the deceased was riding his bicycle in a careful and cautious
manner at time and the place of accident, when the driver of Hyundai Santro
Car bearing registration number U.P.32CM1065, insured by respondent no.
2 (hereinafter referred to as the "offending vehicle") and owned with
respondent no. 1, drove the said offending vehicle in a rash and negligent
manner caused the accident by hitting the bicycle of the deceased. As a

FAFO No. 885 of 2012
2
result thereof, the deceased sustained grievous injuries and succumbed to
death at the place of accident itself. The appellants/claimants filed Claim
petition under Section 166 of the Motor Vehicles Act, 1988 that was
registered as Claim Petition No. 241/2009 (Smt. Chandravati Yadav and
Others versus Vikas Pathak and Others) before the Learned Tribunal,
primarily on the ground that the deceased was a government employee and
was earning monthly salary of Rs. 12,946/-, and had he survived, he would
have continued to earn and maintain his family comprising of his wife
(appellant no. 1) and three children (appellants no. 2 to 4). The
appellants/claimants sought compensation to the tune of Rs. 33,00,000/-
along with interest at the rate of 12% per annum before the learned
Tribunal.
4. The learned Tribunal while deciding the aforesaid Claim Petition No.
241/2009, framed the following issues for determination:
1.
क्या दिनांक 15.04.09 को रात को लगभग 08.00 बजे कुशमौरा मोड़ के
पास अंतर्गत थाना क्षेत्र काकोरी, जिला लखनऊ में कार सं.यू.पी.32 सी.एम.
1065 के चालक द्वारा वाहन को तेजी व लापरवाही से चलातें हुए साइकिल पर
टक्कर मारकर दुर्घटना कारित की गई, जिसके परिणाम स्वरूप साइकिल
चालक सुरेश कुमार यादव को गम्भीर चोटें आई और और इन्हीं चोटों के कारण
सुरेश कुमार यादव की दुर्घटनास्थल पर मृत्यु हो गई ?
2.
क्या दुर्घटना की तिथि पर उपरोक्त कार विपक्षी सं.2 आई.सी.आई.सी.आई.
लोम्बार्ड जनरल इंश्योरेंस कम्पनी लि. से बीमित थी तथा बीमा पालिसी की शर्तों
के अधीन परिचालित थी ?
3.
क्या दुर्घटना की तिथि पर उपरोक्त कार चालक के पास वैध एवं प्रभावी ड्राइविंग
लाइसेंस था ?
4.
क्या याचीगण किसी प्रतिकर को पाने का अधिकारी है ? यदि हाँ तो किससे
और कितनी धनराशि ?
5. The learned Tribunal vide Order dated 11.04.2021 passed in the aforesaid
Claim Petition No. 241/2009 awarded compensation to a tune of Rs.
10,59,692/- to the appellants/claimants along with interest at the rate of 7%
per annum . While deciding the Issue No. 1, the learned Tribunal held
contributory negligence on the part of the deceased cyclist and the driver of
the offending vehicle, thereby fixed negligence on the part of the deceased at
40% and that of the driver of the offending vehicle at 60%. While deciding
Issue No. 4 regarding the quantification of compensation, the learned

FAFO No. 885 of 2012
3
Tribunal determined the monthly income of the deceased at Rs. 12,946/- on
the basis of the 'salary certificate' available on record and added 30%
towards future prospects in view of the age factor of the deceased falling
between the age group of 40-50 years. However, the learned Tribunal
deducted 1/3rd towards personal and living expenses. By applying the
multiplier of 13 as per the Second Schedule to the Motor Vehicles Act,
1988, the Learned Tribunal determined the compensation to a tune of Rs.
10,50,192/-. Further, an amount of Rs. 9500/- under conventional heads was
also added. Thus, the learned Tribunal awarded compensation to the
appellants/claimants aggregating to Rs. 10,59,692/-, with the direction that
the said amount be disbursed in the following manner:
1.
श्रीमती चन्द्रावती आयु लगभग 48 वर्ष पत्नी स्व. सुरेश चन्द्र यादव, को मु.
1,22,000.00 रूपए नगद जरिए रेखांकित चैक के माध्यम से अदा किया
जाएगा. जो किसी राष्ट्रीकृत बैक की शाखा पर देय होगा। श्रीमती चन्द्रावती के
नाम से मु. 4,87,692.00 रूपये (संग हानि को शामिल करते हुए) तथा सम्पूर्ण
प्रतिकर की घनराशि पर मिलने वाला ब्याज एवं वाद व्यय किसी राष्ट्रीयकृत बैंक
की मासिक आय 'जमा योजना में 15 वर्ष के लिए इस न्यायधिकरण के माध्यम
से जमा किये जायेंगे, जिस पर मासिक ब्याज देय होगा।
2.
मुकेश कुमार यादव आयु लगभग 27 वर्ष पुत्र स्व. श्री सुरेश चन्द्र यादव,
प्रतिकर की धनराशि में से मु.30,000 रूपए नकद जरिए रेखांकित चैक प्राप्त
करेगा जो किसी राष्ट्रीकृत बैंक की शाखा पर देय होगा तथा शेष मु.1,20,000
रूपए की धनराशि 15 वर्ष की अवधि के लिए मासिक आय योजना में उसके
नाम से जमा की जाएगी जिस पर प्रत्येक माह मिलने वाला ब्याज प्राप्त होगा,
जिसे उसके भविष्य के लिए खर्च किया जा सकेगा और धन का दुरूपयोग नहीं
हो पाएगा।
3.
कमलेश कुमार यादव आयु लगभग 25 वर्ष पुत्र स्व. श्री सुरेश चन्द्र यादव,
प्रतिकर की धनराशि में से मु.30,000 रूपए नकद जरिए रेखांकित चैक प्राप्त
करेगा जो किसी राष्ट्रीकृत बैंक की शाखा पर देय होगा तथा शेष मु.1,20,000
रूपए की धनराशि 15 वर्ष की अवधि के लिए मासिक आय योजना में उसके
नाम से जमा की जाएगी जिस पर प्रत्येक माह मिलने वाला ब्याज प्राप्त होगा,
जिसे उसके भविष्य के लिए खर्च किया जा सकेगा और धन का दुरूपयोग नहीं
हो पाएगा।
4.
कु. सरला यादव आयु लगभग 20 वर्ष पुत्र स्व. श्री सुरेश चन्द्र यादव, प्रतिकर
की धनराशि में से मु. 30,000 रूपए नकद जरिए रेखांकित चैक प्राप्त करेगी जो
किसी राष्ट्रीकृत बैंक की शाखा पर देय होगा तथा शेष मु.1,20,000 रूपए की
धनराशि 15 वर्ष की अवधि के लिए मासिक आय योजना में उसके नाम से जमा
की जाएगी जिस पर प्रत्येक माह मिलने वाला ब्याज प्राप्त होगा, जिसे उसके
भविष्य के लिए शिक्षा दीक्षा पर खर्च किया जा सकेगा और धन का दुरूपयोग
नहीं हो पाएगा।
6. Aggrieved by the aforesaid judgment and award dated 11.04.2012 passed
in Claim Petition No. 241/2009, particularly with regard to the determination
of 40% contributory negligence on the part of the deceased, deduction of
1/3rd of the deceased's monthly income towards personal and living
expenses instead of 1/4th, inadequacy of compensation under conventional
heads, and award of interest at the rate of 7% per annum instead of 12% per
annum ; the appellants/claimants have preferred the instant Appeal under

FAFO No. 885 of 2012
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Section 173 of the Motor Vehicles Act, 1988.
7. At the very outset, the learned counsel for the Respondent No. 2/ ICICI
Lombard General Insurance Limited raised an objection to the effect that as
per the amended Rule 204 of U.P. Motor Vehicle Rules, 2011, the driver of
the vehicle involved in the accident should be made party in Claim petition
and since the driver of the offending vehicle was not impleaded by the
appellants in the aforesaid Claim Petition No. 241 of 2009, the same was
liable to be rejected on this score alone being maintainable. Consequently,
the present Appeal arising out of said Claim Petition No. 241/2009, is also
non-maintainable and is liable to be dismissed.
8. Confronting the aforesaid preliminary objection regarding the
maintainability of the present Appeal, the learned counsel for the
Appellants/claimants submitted that the Respondent No. 2 did not raised the
said objection before the Learned Tribunal and for the first time the same
has been raised at this appellate stage. Further, he submitted that the Claim
Petition No. 241 of 2009 was filed on 11.05.2009, while the mandatory
requirement regarding impleadment of the driver as a necessary party was
introduced by way of the Eleventh Amendment to the U.P. Motor Vehicles
Rules, 2011, as Rule 204(7) to the said Rules of 2011. He contended that the
said statutory requirement was introduced much after the filing of the Claim
Petition and as such, the non-impleadment of the driver could not render the
Claim Petition as non-maintainable. In support of his contention, the learned
counsel has relied upon the judgment passed by the Hon'ble Supreme Court
in the case of Machindranath Kernath Kasar versus D. S. Mylarappa
reported in AIR 2008 SC 2545.
9. Before delving into the merits of the case, it would be apt to address the
issue raised on behalf of respondent No. 2 regarding the maintainability of
the present Appeal arising out of the Claim Petition No. 241of 2009.
10. In so far as the objection raised by the learned Counsel for the
Respondent No. 2 that non-fulfilment of the mandatory requirement
stipulated under the amended Rule 204(7) of the U.P. Motor Vehicle Rules,
2011 rendered aforesaid Claim Petition non-maintainable before the Learned
Tribunal; it is pertinent to mention that the said amendment to the Motor

FAFO No. 885 of 2012
5
Vehicle Rules, 2011 has been published in official gazette dated 26.9.2019,
whereas the Claim Petition in question was filed on 11.05.2009, i.e., much
before the coming into force of said amendment to the Motor Vehicle Rules.
It is well settled in law that a legislation is applicable prospectively unless
specifically provided therein. It is trite in law that, in absence of anything in
the enactment to show that it is to be operated with retrospective effect, it
cannot be so construed as to have the effect of altering the law applicable to
a claim in litigation at the time when the said act was passed.
11. For a ready reference, the Amended Rule 204(7) of the U.P. Motor
Vehicle Rules, 2011 is reproduced herein below,
" 4. Amendment of Rule 204.-In the said rules, for Rule
204, the following rule shall be substituted, namely--
"204. Application for compensation.-
(1) ...
…
(7) The driver of the vehicle, involved in the accident, shall
be the necessary party in the application for compensation
filed under Section 166 of the Act."
12. The Division Bench of this Court in the case of ICICI Lombard
versus vide
General Insurance Co. Ltd. Smt. Reena Tyagi and Others
order dated 27.03.2017 in FAFO No. 2190 of 2010 has held that the
( )
amendment in U.P. Motor Vehicle Rules making it mandatory to implead
the driver of the vehicle involved in the accident shall not be retrospective in
operation, however, only beneficial provision can have retrospective
application.
13. In view of what has been discussed herein above establishing the the
amended Rule 204(7) of the U.P. Motor Vehicle Rules, 2011, being
prospective in nature, the objection raised by the learned counsel for the
Respondent No. 2 regarding non-maintainability of the Claim Petition filed
in the year 2009 and the present Appeal arising from the same; more
particularity when the said objection/issue was never raised earlier before the
learned Tribunal; stands demolished. Accordingly, the said objection raised
by the Learned Counsel for the respondent No.2 is turned down.
14. Now, on the merits of the appeal, the contention of the learned counsel
for the appellants/claimants is that the learned Tribunal committed grave

FAFO No. 885 of 2012
6
error in solely relying upon the site plan of the place of accident submitted
after a lapse of 20 days from the date of accident by the Investigating
Officer and thereby drew conclusion that there was 40% contributory
negligence on the part of the deceased. He pleaded that PW-2 (Sant Ram
Yadav) categorically deposed that the deceased was riding the bicycle
carefully and the accident occurred solely due to the rash and negligent
driving of the offending vehicle. Further, on the other hand respondent Nos.
1 and 2 in their written statements, have denied the occurrence of the
accident. The said contradiction itself unveils the truthfulness of the case of
the respondents. It is vehemently argued by the learned counsel for the
appellant that there was no negligence on the part of the deceased and the
entire compensation should be awarded to the appellants/claimants without
any deduction on account of contributory negligence
15. Another ground taken by the appellants is that the learned Tribunal erred
in deducting 1/3rd towards personal and living expenses while the deceased
had four dependents, namely, his wife and three children, therefore, the
deduction should have been 1/4th in the present case. It has further been
contended that the learned Tribunal committed error in awarding a meagre
sum of Rs. 9500/- under conventional heads, whereas each claimant is
entitled to Rs. 1,00,000/- under the head of loss of love and affection, and
Rs. 50,000/- towards funeral expenses. It has also been contended that the
learned Tribunal erred in awarding interest at the rate of 7% per annum ,
whereas in the facts of the present case, it should have been at the rate of
12% per annum.
16. The next submission made on behalf of the appellants/claimants is that
the direction of the learned Tribunal directing the major portion of the
compensation amount awarded to the appellants/claimants should be
deposited in Fixed Deposit Receipt (FDR) or Monthly Income Scheme for a
long period of 15 years is erroneous as the accident occurred 17 years back,
and all the appellants/claimants are by now became majors, who are capable
to manage their own funds. In such circumstances, the entire amount or at
least the major portion thereof is required be paid to them directly.
17. Finally, it has been contended by the learned counsel that the
appellants/claimants are entitled to just and reasonable compensation even if

FAFO No. 885 of 2012
7
they have not specifically claimed the enhanced amount of compensation
before the learned Tribunal or before this Court. By placing reliance upon
several judgments passed by the Hon'ble Supreme Court, he contended that
it was incumbent upon the learned Tribunal to award just compensation in
accordance with law, regardless of the amount claimed by the claimants.
18. Per contra, the, learned counsel appearing on behalf of the respondent
no. 1, i.e., the owner of offending vehicle; vehemently argued that the
impugned judgement and award suffers from no infirmity or perversity, as
the learned Tribunal has analyzed the entire sequence of the accident very
logically, on the basis of the material available on record.
19. The learned Counsel contended that the deceased was coming from a
link-lane to the main-road, while reaching the main-road, he ought to have
looked on both the sides. It was the sudden appearance of the deceased
cyclist before the offending vehicle that resulted in the accident thereby
forcing the offending vehicle to get dis-balanced and falling into a ditch. In
this manner, the percentage of contributory negligence on the part of the
deceased as 40% has been rightly determined by the learned Tribunal.
20. The learned counsel has vehemently argued that mere involvement of the
driver of the offending vehicle in the accident does not ispo facto make him
liable for the accident when the element of rash driving is absent. To buttress
his argument, the learned counsel has relied upon several judgments of the
Hon'ble Supreme Court. He has argued that in the case of
National
Insurance Company Ltd. versus Chamundeshwari and Others reported
in ( 2021) 18 SCC 596 , it was held that each case is judged having regard to
facts of the case and evidence on record. Further, he relied upon the
judgment of the Hon'ble Apex Court passed in Lachoo Ram and Others
versus Himachal Road Transport Corporation, reported in (2014) 13
SCC 254 wherein it was held that "the involvement of the bus in the accident
cannot make the respondent liable to pay compensation unless it can be held
on the basis of materials on record that the accident was caused by rash and
negligent act of the driver-respondent no.2..." . He argues that in the present
case, the driver of the offending vehicle was neither rash nor negligent and
therefore, he cannot be solely held liable for causing the accident.

FAFO No. 885 of 2012
8
21. Lastly, he submitted that the site plan /naksha nazri is an important piece
of evidence, and the learned Tribunal has rightly passed the judgment and
award dated 11.04.2012 by taking it into consideration the material on
record particularly the naksha nazri ; holding contributory negligence of the
deceased in the accident in question. To support his contention, he placed
reliance on the judgment passed by the Hon'ble Supreme Court in the case of
T.O. Anthony versus Karvarnan and Others, reported in (2008) 3 SCC
748. For a ready reference, Paragraph 8 of the said judgment is reproduced
herein-below,
"8. It is not in dispute that the Mahazar Ex. P-2 showed that the
accident spot was at a distance of 2.26 meters from the
Southern edge of the tarred road and 4.79 meters from the
Northern edge of the tarred road. If the appellant was
proceeding from Palakkad to Trichur (from East to West) and
the accident occurred at a distance of 2.2 meters from the
southern edge of the road and 4.79 meters from the Northern
edge of the road, the inference is that the appellant was on the
right side of the road and the private bus came partly to the
wrong side of the road. But the fact that there was a head-on
collision could not be ignored. The evidence shows that the
appellant was not diligent, as he neither slowed down the bus
nor swerved to his left, on seeing the oncoming bus. On the
facts and circumstances we are of the view that the appellant
was also partly responsible for the accident and we fix the
responsibility at 25% on the appellant and 75% on the first
respondent."
22. Heard the learned counsel for the respective parties and perused the
material available on record. This Court now proceeds to examine the issues
that arise for consideration in the present appeal. For the sake of
convenience and clarity, the issues are addressed in seriatim .
23. The foremost question that falls for consideration before this Court is
whether the learned Tribunal was justified in holding the deceased was
guilty of 40% contributory negligence.
24. The learned Tribunal has based the above-mentioned finding of
contributory negligence primarily, if not solely, on the basis of the site plan/
naksha nazri which is marked as document C-15/8 placed on the record of
Claim Petition. The learned Tribunal observed that the said naksha nazri
reflects that the deceased was coming from a link-road and suddenly
emerged on the main road without looking on both left and right sides,
whereas the offending vehicle was proceeding on the main-road from Hardoi
towards Lucknow. The relevant finding recorded by the learned Tribunal is

FAFO No. 885 of 2012
9
extracted below:
"...
इस मामले में दुर्घटना दिनांक 15.04.09 की रात 08.00 बजे की है और
प्रथम सूचना रिपोर्ट थाने पर उसी दिन रात में 09.15 बजे अंकित हुई। जिसमें
वाहन का नंबर दिया हुआ है। नक्शा नजरी सी-15/8 को देखने से स्पष्ट होता है
कि मृतक कुशमौरा मार्ग से हरदोई-लखनऊ रोड की ओर जा रही थी अर्थात वह
उत्तर उत्तर से दक्षिण की ओर आ रही थी। आकामक वाहन हरदोई से लखनऊ
की ओर अर्थात पश्चिम से पूरब की ओर जा रही थी। दुर्घटना जिस स्थान पर
होनः दिखाया गया है वह तिराहा है। नक्शा नजरी से स्पष्ट होता है कि मृतक
हरदोई-लखनऊ मुख्य मार्ग पर आ रहा था। तभी हरदोई की ओर से आ रही कार
ने साइकिल में टक्कर मारी जिससे मृतक उस स्थान से काफी आगे गिरा और
साइकिल उससे दूर जाकर गिरी। इन परिस्थितियों से यह भी स्पष्ट है कि टक्कर
जोरदार थी और यह तभी संभव है जब आक्रामक वाहन की गति काफी तेज हो।
साइकिल से आने वाले व्यक्ति की गति काफी तेज नहीं हो सकती। वाहन चालक
का दायित्व था कि वह गति पर नियंत्रण रखते हुए अपने वाहन को चलाता और
तिराहे के पास वाहन को धीमा करता। इसी प्रकार साइकिल चालक का भी
दायित्व था कि तिराहे पर आने के पूर्व अपनी बाई और दाई ओर देखता कि कोई
वाहन तो नहीं आ रहा है। इस संबंध में यह प्रतीत होता है कि दोनों मृतक और
,
वाहन चालक की योगदायी उपेक्षा दुर्घटना में रहीं है किन्तु कार चालक का
दायित्व आइकिल चालक की अपेक्षा अधिक है। जिस स्थान पर टक्कर लगी
और जहाँ पर शव मिला उनमें काफी दूरी है जो स्वयं दर्शाता है कि टक्कर के
समय वाहन तेज गति में था। इन परिस्थितियों को देखते हुए इस मामले में वाहन
60
कार चालक की उपेक्षा प्रतिशत तथा मृतक साइकिल सवार की उपेक्षा 40
प्रतिशत निर्धारित की जाती है। विन्दु सं. 1 तदनुसार निस्तारित किया जाता है"
(Emphasis supplied by this court)
25. Needless to say that rash and negligent driving is sine quo non for
deciding a Claim petition under section 166 of the Motor Vehicles Act,
1988. The Hon'ble Supreme Court in the case of Lachoo Ram (Supra) is has
very explicitly held that the driver/owner of the vehicle causing the accident
is not liable to pay compensation unless it can be held on the basis of
materials on record, the accident was caused by rash and negligent act of the
said driver of the vehicle. Moreover, it is necessary for the courts to
appreciate the evidence on record, in order to ascertain whether the driver of
the vehicle causing the accident was rash and negligent and in case he was
rash and negligent, then, to ascertain as to the degree of the driver's
negligence. In ascertaining the aforesaid negligence the facts speaks for
itself. In this regard, it is worth noting that in the case of United India
Insurance Company versus Sarita Rani Dhaka and Others reported in
1994 SCC OnLine All 684, the Hon'ble Supreme Court, after considering
the facts of the said case, held that,
"4. …it is clear that driver of the oil tanker was negligent in
driving the vehicle resulting in the accident by applying the
principle of Res ipsa loquitor. Therefore, owner is vicariously
liable for negligent act of the driver and insurer which has
covered the risk of the owner in respect of the vehicle has
rightly been directed to pay compensation to the claimants

FAFO No. 885 of 2012
10
who are dependents of the deceased."
26. Upon a careful reappraisal of the material available on record, this Court
finds that the finding returned by learned Tribunal holding contributory
negligence on the part of the deceased, to the extent of 40% requires
reconsideration. The material on record, including the site plan/ naksha nazri
and the deposition of PW-2 namely, Sant Ram Yadav, indicates that the
accident occurred at a T-junction on the main road, where it is obvious that a
higher degree of caution was expected from the driver of the offending
vehicle. The nature of the impact and the force of collision reasonably
suggest that the offending vehicle was being driven at a high speed and that
its driver failed to slow down his vehicle and did not followed due care
while approaching the said T-junction (place of accident).
27. Further, it is relevant to note that the respondents had taken the specific
plea in their written statement that the accident occurred due to the sole
negligence of the deceased but failed to produce any independent evidence
to substantiate their plea.
28. However, at the same time, it cannot be overlooked that the deceased,
being a cyclist entering at the said T-junction, was also under duty to
exercise reasonable care for his own safety. Although, the evidence that has
been placed on record does not indicate any reckless or deliberate act on the
part of the deceased, a lapse in vigilance on his part cannot be completely
ruled out as well. In such circumstances, the principle of contributory
negligence is attracted, though the extent (percentage) thereof as assessed by
the learned Tribunal appears to be on the higher side.
29. After considering the aforesaid facts in its totality and having regard to
the fact that the driver of the offending vehicle was under a greater
obligation to anticipate and avoid harm at a T-junction, this Court is of the
considered opinion that fixing negligence at 40% on the part of the deceased
is disproportionate in the facts and circumstances of the case in hand,
especially when there is no such evidence to substantiate the negligence on
part of the deceased, except some lapse in vigilance. The ends of justice
would be met by reducing the extent of the contributory negligence on part
of the deceased to 20%, in place of 40%.

FAFO No. 885 of 2012
11
30. The second issue that falls for consideration before this court is
rd
regarding the deduction of 1/3 of the deceased's income towards personal
and living expenses.
31.The issue of deduction towards personal and living expenses of the
deceased has been dealt in detail by the Hon'ble Supreme Court in the case
of Sarla Verma (Smt.) and others versus Delhi Transport Corporation
and another, reported in (2009) 6 SCC 121. The said judgment has been
upheld by the Constitution Bench of the Hon'ble Supreme Court in the case
of National Insurance Company Ltd. versus Pranay Sethi and Others,
reported in (2017) 16 SCC 680 , and, later on, followed in the case of United
India Insurance Company Ltd. versus Satinder Kaur alias Satwinder
Kaur and others, reported in 2020 SCC OnLine SC 410.
32. It would be apt to quote the relevant portion of the judgment passed in
the case of wherein the Hon'ble Apex Court was
Sarla Verma ( Supra ),
pleased to hold that,
"30. Though in some cases the deduction to be made towards
personal and living expenses is calculated on the basis of
units indicated in Trilok Chandra [(1996) 4 SCC 362], the
general practice is to apply standardised deductions. Having
considered several subsequent decisions of this Court, we are
of the view that where the deceased was married, the
deduction towards personal and living expenses of the
deceased, should be one-third (1/3rd) where the number of
dependent family members is 2 to 3, one-fourth (1/4th)
where the number of dependent family members is 4 to 6,
and one-fifth (1/5th) where the number of dependent family
members exceeds six."
[Emphasis supplied]
33. Taking into consideration the facts of the present case in light of the law
laid down by the Hon'ble Apex Court in the case of Sarla Verma ( Supra ),
this Court is of the opinion that the learned Tribunal erred in deducting 1/3rd
towards personal and living and expenses when the deceased had four
dependents, namely his wife and three children. As such it would be lawfully
justified that the said deduction should have been only 1/4th in the present
case.
34. The third issue that falls for consideration before this Court is regarding
the calculations of damages, loss of consortium and the multiplier under the

FAFO No. 885 of 2012
12
conventional head of the Second Schedule appended with the Motor
Vehicles Act, 1988 and as per the principles laid down by the Hon'ble
Supreme Court. In the case of National Insurance Company Ltd. versus
reported in , the Hon'ble Apex
Pranay Sethi and Others (2017) 16 SCC 680
Court observed that the conventional damage amount needs to be appositely
determined and thereby the Hon'ble Apex Court revisited the practice of
awarding compensation under conventional heads. For a ready reference,
Paragraph 52 of the judgment passed in the case of Pranay Sethi [ Supra ] is
reproduced herein-below,
"52. As far as the conventional heads are concerned, we find
it difficult to agree with the view expressed in Rajesh[Rajesh
v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 :
(2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . It has
granted Rs 25,000 towards funeral expenses, Rs 1,00,000
towards loss of consortium and Rs 1,00,000 towards loss of
care and guidance for minor children. The head relating to
loss of care and minor children does not exist. Though
Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4
SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC
(L&S) 149] refers to Santosh Devi [Santosh Devi v. National
Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ)
726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] , it
does not seem to follow the same. The conventional and
traditional heads, needless to say, cannot be determined on
percentage basis because that would not be an acceptable
criterion. Unlike determination of income, the said heads
have to be quantified. Any quantification must have a
reasonable foundation. There can be no dispute over the fact
that price index, fall in bank interest, escalation of rates in
many a field have to be noticed. The court cannot remain
oblivious to the same. There has been a thumb rule in this
aspect. Otherwise, there will be extreme difficulty in
determination of the same and unless the thumb rule is
applied, there will be immense variation lacking any kind of
consistency as a consequence of which, the orders passed by
the tribunals and courts are likely to be unguided. Therefore,
we think it seemly to fix reasonable sums. It seems to us that
reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses should be Rs
15,000, Rs 40,000 and Rs 15,000 respectively. The principle
of revisiting the said heads is an acceptable principle. But the
revisit should not be fact-centric or quantum-centric. We
think that it would be condign that the amount that we have
quantified should be enhanced on percentage basis in every
three years and the enhancement should be at the rate of 10%
in a span of three years. We are disposed to hold so because
that will bring in consistency in respect of those heads."
(Emphasis supplied by this Court)
35. Further, the principles governing award of compensation under
conventional heads with regard to award for loss of consortium, have also

FAFO No. 885 of 2012
13
been laid down by the Hon'ble Supreme Court in the case of Magma
General Insurance Company Ltd. versus Nanu Ram and others,
reported in (2018) 18 SCC 130 and for a ready reference, Paragraph 21 of
the same is reproduced herein-below,
"21. … In legal parlance, "consortium" is a compendious
term which encompasses "spousal consortium", "parental
consortium", and "filial consortium". The right to consortium
would include the company, care, help, comfort, guidance,
solace and affection of the deceased, which is a loss to his
family. With respect to a spouse, it would include sexual
relations with the deceased spouse: [Rajesh v. Rajbir Singh,
(2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC
(Cri) 817 : (2014) 1 SCC (L&S) 149]
21.1. Spousal consortium is generally defined as rights
pertaining to the relationship of a husband-wife which allows
compensation to the surviving spouse for loss of "company,
society, cooperation, affection, and aid of the other in every
conjugal relation". [Black's Law Dictionary (5th Edn.,
1979).]
21.2. Parental consortium is granted to the child upon the
premature death of a parent, for loss of "parental aid,
protection, affection, society, discipline, guidance and
training".
…
22. Consortium is a special prism reflecting changing norms
about the status and worth of actual relationships. ...
23. The Motor Vehicles Act is a beneficial legislation aimed
at providing relief to the victims or their families, in cases of
genuine claims. … Parental consortium is awarded to
children who lose their parents in motor vehicle accidents
under the Act. A few High Courts have awarded
compensation on this count [Rajasthan High Court in
Jagmala Ram v. Sohi Ram, 2017 SCC OnLine Raj 3848 :
(2017) 4 RLW 3368; Uttarakhand High Court in Rita Rana
v. Pradeep Kumar, 2013 SCC OnLine Utt 2435 : (2014) 3
UC 1687; Karnataka High Court in Lakshman v. Susheela
Chand Choudhary, 1996 SCC OnLine Kar 74 : (1996) 3
Kant LJ 570]. However, there was no clarity with respect to
the principles on which compensation could be awarded on
loss of filial consortium.
24. The amount of compensation to be awarded as
consortium will be governed by the principles of awarding
compensation under "loss of consortium" as laid down in
Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi,
(2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC
(Cri) 205]."
36. Moreover, the principles governing award of compensation with
multiplier is accurately discussed by the Hon'ble Supreme Court in the case
of Sunita Tokas and Another versus New India Insurance Company Ltd

FAFO No. 885 of 2012
14
and another, reported in 2019 (20) SCC 688 wherein after considering a
catena of its previous judgments, the Hon'ble Apex Court was pleased to
hold as follows,
"(4) We have perused the judgments of the courts below, and
found that the multiplier has been fixed on the basis of the
age of the mother of the deceased boy. The issue with
respect to whether the multiplier to be applied in the case of
a bachelor, should be computed on the basis of the age of the
deceased, or the age of the mother, is no longer res integra.
There are a catena of judgments rendered by this Court,
wherein it has been held that the multiplier has to be applied
on the basis of the age of the deceased, and not on the basis
of the age of the dependants.
…
(4.8) The Court after perusing all earlier judgments,
observed that the judicial pronouncements had devised a
standard formula for calculation of the compensation qua
various components. The amount of compensation is to be
paid to the claimants who are dependents in the event of the
death of a person, based on what the deceased would have
contributed to their support. The amount received by the
dependants becomes a part of the estate, as they may live
longer, or may be younger than the age-limits taken into
account for calculation of the multiplier to be applied in such
a situation. In the case of the death of a married person, it is
an accepted norm that the age of the deceased would be
taken into account. The Court held that even in the case of a
bachelor, the same principle must be applied. The Court held
that once the law is settled, it should not repeatedly be
changed, since certainty of law is of crucial importance, to
avoid any confusion."
37. Now, as the principles are well settled regarding the calculation of
damages, loss of consortium and the multiplier under the conventional head
of the Second Schedule appended with the Motor Vehicles Act, 1988, as
have been encapsulated above, the same can be applied in view of the facts
of the present case. As far as the conventional heads are concerned, namely
Loss of Consortium (loss of love and affection), loss of estate, and funeral
expenses, this Court is of the opinion that a reasonable sum should be fixed.
Therefore, in the light of the law laid down by the Hon'ble Apex Court as
discussed herein-above, for ensuring consistency and fairness in
compensation, it is appropriate in the facts of the present case to enhance the
amount falling under the Conventional Heads to Rs. 40,000/- to each
claimant for loss of consortium, Rs. 15,000/- for loss of estate, and Rs.
15,000/- for funeral expenses.
38. The fourth issue that falls for consideration before this Court is regarding

FAFO No. 885 of 2012
15
the correctness of the direction of the learned Tribunal to invest a major
portion of the compensation in Fixed Deposit Receipt (FDR) that was fixed
for a period of 15 years.
39. It would not be out of place to refer Rule 220-B as contained in U.P.
Motor Vehicle Rules, 1998 which was added to the said Rules as a result of
the guidelines issued by the Hon'ble Supreme Court in the case of General
Manager, Kerala State Road Transport Corporation versus Sushamma
Thomas reported in, 1994 SCC (2) 176. For a ready reference, the aforesaid
Rule 220-B is reproduced herein below:
"
220-B. Securing the interest of Claimants. —(1) Where any
lump-sum amount of compensation, deposited with the
Claims Tribunal is payable to a woman or a person under
legal disability/ such sum may be invested, applied or
otherwise dealt with for the benefit of the woman or such
person during his disability in such manner as the Claims
Tribunal may direct to be paid to any dependent of the
injured or heirs of the deceased or to any other person whom
the Claims Tribunal thinks best fitted to provide for the
welfare of the injured or the heir of the deceased.
(2) Where an application made to the Claims Tribunal in this
behalf otherwise, the Claims Tribunal is satisfied that on
account of neglect of the children on the part of the parents,
or on account of the variation of the circumstances of any
dependent, or for any other sufficient cause, an order of the
Claims Tribunal as to the distribution of any sum paid as
compensation or as to the manner in which any sum payable
to any such dependent is to be invested applied or otherwise
dealt with, ought to be varied, the Claims Tribunal may
make such further orders for the variation of the former
order as it thinks just in the circumstances of the case. the
Claims Tribunal may consider such a request after being
satisfied that the amount would be actually spent for the
purpose and the demand is not a ruse to withdraw money.
(3) The Claims Tribunal shall, in the case of minor, order
that amount of compensation awarded to such minor be
invested in fixed deposits till such minor attains majority.
The expenses incurred by the guardian or the next friend
may be allowed to be withdrawn by such guardian or the
next friend from such deposits before it is deposited :
Provided that the interest payable on such deposits may be
allowed to be utilized for education, maintenance and
development of the minor with the permission of the Claims
Tribunal.
(4) The Claims Tribunal shall, in the case of illiterate
claimants, order that the amount of compensation awarded
be invested in fixed deposits for a minimum period of three
years, but if any amount is required for effecting purchase of
any movable or immovable property for improving the
income of the claimant,the Claims Tribunal may consider

FAFO No. 885 of 2012
16
such a request after being satisfied that the amount would be
actually spent for the purpose and the demand is not a ruse
to withdraw money.
(5) The Claims Tribunal shall, in the case of semi-literate
person resort to the procedure for the deposit or award
amounts set out in sub-rule (4) unless if is satisfied, for
reasons to be recorded in writing that the whole or part of
the amount is required for the expansion of any existing
business or for the purchase of some property as specified
and mentioned, in sub- rule (4) in which case the Claims
Tribunal shall ensure that the amount is invested for the
purpose for which it is prayed for and paid.
(6) The Claims Tribunal may in the case of literate persons
also resort to the procedure for deposit of awarded amount
specified.in sub-rules (4) and (5) if having regard to the age,
fiscal background and state of society to which the claimant
belongs and such other consideration/ the Claims Tribunal
in the larger interest of the claimant and with a view to
ensure the safety of the compensation awarded, thinks it
necessary to order.
(7) The Claims Tribunal, may in personal injury cases, if
further treatment is necessary, on being satisfied which shall
be recorded in writing, permit the withdrawal of such
amount as is necessary for the expenses of such treatment.
(8) The Claims Tribunal may, in the matter of investment of
money, have regard to maximum return by ways of
periodical income to the claimant, deposit with public sector
undertaking of the State or Central Government which offers
higher rate of interest.
(9) The Claims Tribunal shall, in investing money, direct that
the interest on the deposits be paid directly to the claimants
or the guardian of the minor claimants by the institution
holding the deposits under intimation to the Claims
Tribunal]."
40. The aforesaid Rule 220-B is a beneficial and protective framework for
vulnerable claimants, i.e., claimants who are women, minors, illiterates,
semi-illiterates or disabled. The purpose of the aforesaid Rule is to safeguard
the funds that are awarded as compensation to the claimants so that it is
securely invested and used for the long-term welfare of the claimants
mentioned therein and not squandered or misused.
41. Further, the guidelines issued by the Hon'ble Supreme Court in the case
of General Manager, Kerala State Road Transport Corporation versus
Sushamma Thomas (Supra) were re-appreciated and clarified by the
Hon'ble Apex Court in the case of A . V. Padma and others versus R.
Venugopal and others reported in (2012) 3 SCC 378, wherein the Hon'ble
Court was pleased to hold as follows:

FAFO No. 885 of 2012
17
"9. The guidelines cast a responsibility on the Tribunals to
pass appropriate orders after examining each case on its own
merits. However, it is seen that even in cases when there is
no possibility or chance of the feed being frittered away by
the beneficiary owing to ignorance, illiteracy or
susceptibility to exploitation/investment of the amount of
compensation in long term fixed deposit is directed by the
Tribunals as a matter of course and in a routine manner,
ignoring the object and the spirit of the guidelines issued by
this Court and the genuine requirements of the claimants.
Even in the case of literate persons, the Tribunals are
automatically ordering investment of the amount of
compensation in long term fixed deposit without recording
that having regard to the age or fiscal background or the
strata of the society to which the claimant belongs or such
other considerations, the Tribunal thinks it necessary to
direct such investment in the larger interests of the claimant
and with a view to ensure the safety of the compensation
awarded to him.
10. The Tribunals very often dispose of the claimant's
application for withdrawal of the amount of compensation in
a mechanical manner and without proper application of
mind. This has resulted in serious injustice and hardship to
the claimants. The Tribunals appear to think that in view of
the guidelines issued by this Court, in every case the amount
of compensation should be invested in long term fixed
deposit and under no circumstances the Tribunal can release
the entire amount of compensation to the claimant even if it
is required by him. Hence a change of attitude and approach
on the part of the Tribunals is necessary in the interest of
justice."
42. From the law as laid down by the Hon'ble Supreme Court in the case of
(supra), it is
A.V. Padma and Others versus R. Venugopal and Others
clear that the guidelines were issued to keep the amount in Fixed Deposit or
Monthly Income Scheme for a period of time only in the case of minors,
illiterate claimants and widows requiring special protection.
43. In the present case, the appellants/claimants No.1 lost her husband while
the other appellants/claimants No. 2 to 4 lost their father in the year 2009,
and the award was passed in the year 2012. At present, all the claimants are
undisputedly adult members. The guidelines issued by the Hon'ble Supreme
Court in General Manager, Kerala State Road Transport Corporation
versus Susamma Thomas, (Supra), which have now been incorporated in
Rule 220-B of the U.P. Motor Vehicle Rules of 1998, were only to safeguard
the interest of the vulnerable claimants. These guidelines were not meant to
be understood to mean that the Tribunal was supposed to take a rigid stand
while considering the mode of disbursement of compensation to adult
claimants who are capable of managing their own funds.

FAFO No. 885 of 2012
18
44. Therefore, considering the facts of the present case that the
appellants/claimants are now major by age and adult members of the
deceased family. The impugned award was passed in the year 2012 in
respect of an accident which had taken place in the year 2009. Nearly 17
years have elapsed since the accident and the death of the deceased and 14
years have passed since the award was passed by the learned Tribunal; there
is no reason to continue the FDR directed by the learned Tribunal and the
restriction placed on release of compensation amount to the
appellants/claimants.
45. This Court is of the opinion that the direction for investment in Fixed
Deposit/Monthly Income Scheme for a period of 15 years, as contained in
the judgment and award dated 11.04.2012 passed by the learned Tribunal,
was appropriate at the time when the award was passed and when some of
the appellants/claimants were minors or of young age. However, with the
passage of considerable time, all the appellants/claimants are now mature
adults capable of managing their own funds, and therefore, the continued
restriction on release of the enhanced compensation amount is not at all
justified at this stage.
46. The deceased namely Suresh Chandra Yadav has left behind four
dependents, all of whom have claimed compensation. The dependents are:
(i) Smt. Chandravati Yadav, wife of the deceased; (ii) Mukesh Yadav, son of
the deceased; (iii) Kamlesh Kumar Yadav, son of the deceased; and (iv)
Kumari Sarla Yadav, daughter of the deceased. There is no case that these
family members were not dependent upon income the deceased. The
deceased was employed in government service and was earning a monthly
salary of Rs. 12,946/- and was providing for maintaining the entire family
comprising of 4 people.
47. The learned Tribunal has deducted 1/3rd of the deceased's income
towards personal and living expenses, which is contrary to the principles laid
down by the Hon'ble Apex Court in the case of Pranay Sethi (supra) .
Therefore, deduction towards personal and living expenses would be 1/4th,
as the dependent family members being four in number. In this manner, the
judgment and award dated 11.04.2012 passed by the learned Tribunal

FAFO No. 885 of 2012
19
deserves to be modified.
48. Over and above the substantive compensation payable, the
appellants/claimants are also entitled to compensation under the
conventional heads determined in accordance with the principles laid down
in (supra) The compensation payable to the
Pranay Sethi .
appellants/claimants in the present First Appeal stands modified as under:

FAFO No. 885 of 2012
20

49. In view thereof, the judgment and award dated 11.04.2012 passed by the
learned Tribunal in Claim Petition No. 241 of 2009 is modified and the
compensation awarded is enhanced to a total amount of Rs. Rs. 17,27,288/-
(Rupees Seventeen Lacs Twenty Seven Thousand Two Hundred Eighty
Eight only). The compensation would carry simple interest thereon at the
rate of 7% per annum from the date of institution of the aforesaid Claim
Petition No. 241 of 2009, until realization of the said amount of money.
However, the sum of money already deposited (paid or invested in terms of
the judgment and award dated 11.04.2012 passed by the learned Tribunal in
Claim Petition No. 241 of 2009 or interim orders of this Court) shall be
accordingly adjusted. The enhanced compensation shall be paid to the
appellants/claimants within a period of eight weeks from the date of receipt
of a certified copy of this judgment.
50. As a result and subject to the aforesaid modification, the appeal is partly
allowed . There shall be no order as to costs.
51. The original record of the Claim Petition No. 241 of 2009 be transmitted
back to the Tribunal concerned at the earliest.

FAFO No. 885 of 2012
21
52. Before parting, this Court deems it appropriate to place on record its
deep appreciation for the invaluable assistance rendered by Mr. Rajat
Srivastava, Research Associate, attached with me in drafting this judgment
and finding out case laws applicable in the present case.

April 27, 2026
Arun
(Syed Qamar Hasan Rizvi,J.)
Digitally signed by :-
ARUN KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench