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Allahabad High Court · body

2023 DIGILAW 1187 (ALL)

Hamidunnisa v. U. P. State Road Transport Corpn.

2023-04-28

J.J.MUNIR

body2023
JUDGMENT : (J.J. Munir, J.) 1. This is a claimants' appeal arising out of a judgment and award of Mr. S.C. Bose, District Judge of Allahabad, sitting as the Motor Accident Claims Tribunal, dated 6th January, 2003 passed in Motor Accident Claims Petition No.411 of 1999. The claimants seek enhancement of the compensation awarded. 2. Insanul Haq, the deceased was travelling on board Jeep No. UP-70N-7479 on 13.04.1999. At about 7:30 p.m., near a certain Village Gansiari within the local limits of Police Station Mau Aima, District Allahabad (now Prayagraj), a Bus bearing registration No. UGH-471, owned by the Uttar Pradesh State Road Transport Corporation (for short, 'the UPSRTC'), that was proceeding from Allahabad to Ayodhya, hit the Jeep. In consequence of the accident, Insanul Haq sustained injuries, leading to his death. The Jeep aforesaid, whereon Insanul Haq was travelling, was owned by one Alok Pandey and insured by the Oriental Insurance Company, Allahabad. The claimants are seven in number, to wit, Hamidunnisa (wife) aged about 40 years, Tito (son) aged about 16 years, Gulzar (son) aged about 15 years, Resham (daughter) aged about 12 years, Sarwar (son) aged about 9 years, Gulsher (son) aged about 5 years and Kulsum (son) aged about 7 years. 3. It is the claimants' case that the deceased was a power loom mechanic and himself the owner of a power loom. His income was Rs.5000/-per month. All the claimants were dependent upon the deceased's income. The claimants have, therefore, demanded a compensation in the sum of Rs.10,00,000/-. 4. A separate written statement each was filed on behalf of the UPSRTC, the owner of the ill-fated Jeep, Alok Pandey and the Oriental Insurance Company, who are the Insurers of the Jeep. The owner of the Jeep and the Insurers shall hereinafter referred to as 'the owner' and 'the Insurers', respectively. 5. The UPSRTC broadly took a stand that the accident happened on account of the Jeep driver's negligence, whereas the owner took a stand that the accident occurred due to the rash and negligent driving by the Bus driver. It was also urged that on the date of accident, the ill-fated Jeep was validly insured with the Insurers. The Insurers did a wholesome and inconsistent denial of everything that was urged to hold them liable. It was also urged that on the date of accident, the ill-fated Jeep was validly insured with the Insurers. The Insurers did a wholesome and inconsistent denial of everything that was urged to hold them liable. They denied insuring the ill-fated Jeep, the accident between the UPSRTC Bus and the ill-fated Jeep, and also the fact that the driver held a valid driving licence. In substance, the Insurers denied their liability to indemnify the owner of the Jeep regarding any liability, that may be apportioned to him. 6. On the pleadings of parties, the following issues were framed (translated into English from Hindi): “1. Whether on 13.04.1999, at about 7:30 in the evening hours, the alleged accident happened on account of rash and negligent driving of Jeep No. UP-70N-7479? 2. Whether the alleged accident, involving Jeep No. UP-70N-7479 and Bus No. UGH-471, happened due to the contributory negligence of both the vehicles? If yes, which vehicle is at fault and to what extent? 3. Whether Jeep No. UP-70N-7479 is owned by Alok Pandey and insured with the Oriental Insurance Company? 4. Whether on the date of the accident, the driver had a valid driving licence? 5. Whether Jeep No. UP-70N-7479 was being operated in accordance with law, rules and its registration? 6. Whether the claimants are entitled to compensation? If yes, how much and from which of the parties? 7. To what relief are the claimants entitled?” 7. The Tribunal dealt with Issues Nos. 1 and 2 together and held that both the Bus and the ill-fated Jeep had equal contributory negligence in the accident. Issue No.3 was answered in favour of the owner and the claimants holding that the ill-fated Jeep was owned by the owner and validly insured with the Insurers. This issue was answered in this manner by the Tribunal on the Insurers' admission. Issue No.5 was decided in the manner that the ill-fated Jeep was held registered in the owner's name as a vehicle for personal use. There is a further finding that on the date of accident, the ill-fated Jeep was being used to carry passengers. It was, therefore, held on this Issue in conclusion that the ill-fated Jeep was not being operated in accordance with its registered use. There is a further finding that on the date of accident, the ill-fated Jeep was being used to carry passengers. It was, therefore, held on this Issue in conclusion that the ill-fated Jeep was not being operated in accordance with its registered use. In answering Issue No.4, the Tribunal held that according to the evidence on record, the driver of the ill-fated Jeep, Shiv Shankar had a valid driving licence with him, which was valid for driving a private vehicle alone. The licence was not endorsed for driving a commercial vehicle carrying passengers. Issues Nos.6 and 7 were taken up together. The claimants were held entitled to compensation on account of Insanul Haq’s death. 8. The Tribunal held that though the claimants said that the deceased was a power loom mechanic, who owned a power loom, yielding an income of Rs.5000/-per month, but there is no proof of the deceased's income or his ownership of the power loom, that were claimed for him. It was noted that no proof was offered regarding the said fact by the claimants. It has been remarked that the fact that the deceased was a power loom mechanic has not been specifically denied as well by the other side. It has been observed by the Tribunal that the deceased, who was found to be aged 40 years, considering his age group and capability to work, must be credited with a minimum monthly income of Rs.3000/-. It is on this basis that the Tribunal proceeded to work out the claimants' dependency. 9. The Tribunal ordered deduction of a one-third out of the deceased's income towards his personal and living expenses. Accordingly, the monthly income of the deceased available for the purpose of working out dependency was held to be Rs.2000/-. Considering the age of the deceased, a multiplier of 16' was adopted. On the aforesaid basis, a total substantive dependency of Rs.3,84,000/-was determined by the Tribunal, to which the claimants were held entitled. On the said sum of money, interest was directed to be paid @ 10% per annum with effect from the date of institution of the claim. The Tribunal has taken note of the fact that the claimants have entered into a settlement with the UPSRTC in the Lok Adalat held on 04.03.2001, and, accepted in compensation, a total sum of Rs.60,000/-in liquidation of all their claims against the UPSRTC. The Tribunal has taken note of the fact that the claimants have entered into a settlement with the UPSRTC in the Lok Adalat held on 04.03.2001, and, accepted in compensation, a total sum of Rs.60,000/-in liquidation of all their claims against the UPSRTC. It was, accordingly, held that there was nothing payable to the claimants by the UPSRTC. 10. The Tribunal has gone on to hold that after receiving Rs.60,000/-from the UPSRTC out of the total compensation of Rs.3,84,000/-payable, 50% would be deducted from the said sum of money, entitling the claimants to a sum of Rs.1,92,000/-in compensation, payable by the owner. The Insurers were discharged on ground that there was a breach of policy. The Tribunal has apportioned compensation, amongst the various claimants, with the largest sum of Rs.42,000/-being directed to be paid to the widow, Smt. Hamidunnisha. 11. Heard Mr. Sharve Singh, learned Counsel for the claimants, Mr. Siddharth Jaiswal, Advocate holding brief of Mr. Ashok Kumar Jaiswal, learned Counsel for the Insurers and Mr. Sunil Kumar Mishra, learned Counsel appearing on behalf of the UPSRTC. No one appeared on behalf of the owner, though the name of Ms. Seema Misra, Advocate is printed in the cause list. 12. It is argued by the learned Counsel for the claimants that the principle of contributory negligence in this case is not applicable, because it is a case of composite negligence. The claimants are free to recover from either of the two vehicles notwithstanding the finding of contributory negligence apportioning a 50% liability. It is next submitted that breach of condition of the insurance policy that the Tribunal has found on account of the driving licence of the driver of the ill-fated Jeep not being endorsed for driving a commercial passenger vehicle, would not entitle the Insurers to an all out exoneration on the policy. Instead, it would give the Insurers a right to recover after paying off the claimants. The claimants have also criticized the Tribunal's finding in holding the deceased's income to be a sum of Rs.3000/-per month, ignoring evidence about his income. It is also said that the Tribunal has not taken into account future prospects of the deceased. The deduction towards personal expenses has been criticized as one much on the higher side. It is also urged that the Tribunal has failed to award anything toward loss of love and affection, besides funeral expenses. 13. It is also said that the Tribunal has not taken into account future prospects of the deceased. The deduction towards personal expenses has been criticized as one much on the higher side. It is also urged that the Tribunal has failed to award anything toward loss of love and affection, besides funeral expenses. 13. The learned Counsel appearing for the UPSRTC says that they are not liable to pay anything to the claimants towards the enhanced compensation, inasmuch as the claimants have accepted a sum of Rs.60,000/-on 04.03.2001 before the Lok Adalat in complete settlement of their claim against the UPSRTC. 14. The learned Counsel for the Insurers, on the other hand, has argued that the Jeep driver's licence being one for a private vehicle alone, without any endorsement for driving a commercial vehicle, there is a fundamental breach of the policy, entitling the Insurers to complete exoneration, as ordered by the Tribunal. 15. This Court has considered the submissions advanced on behalf of both sides. It is to be noticed that there is no appeal, either by the owner or the Insurers. It is true that so far as the claimants are concerned, it is a case of composite negligence, because the deceased was on board one of the vehicles, that has been found to have contributed to the negligence leading to the accident. The claimants are free to recover from any of the parties found to be in contributory negligence. The issue of apportionment of negligence and a fortiori the liability to pay compensation is a matter inter se the owner and the Insurers on one hand and the UPSRTC on the other. It is not an issue in this appeal at all. 16. What is different in this case is that the rights of the claimants have nevertheless been split into two parts, to wit, one part against the owner and the Insurers and the other against the UPSRTC. There is on record a compromise inter se the claimants and the UPSRTC dated 04.03.2001 filed before the Lok Adalat, which has been accepted on the same day by the Lok Adalat. The terms of the settlement before the Lok Adalat show that the claimants have compromised their claim against the UPSRTC for a sum of Rs.60,000/-in all. There is on record a compromise inter se the claimants and the UPSRTC dated 04.03.2001 filed before the Lok Adalat, which has been accepted on the same day by the Lok Adalat. The terms of the settlement before the Lok Adalat show that the claimants have compromised their claim against the UPSRTC for a sum of Rs.60,000/-in all. The aforesaid compromise between the claimants and the UPSRTC is on record as paper No.14-Ga, on the reverse of which is the order passed by the Lok Adalat. The result is that the present appeal by the claimants for enhancement is confined to their claim against the owner and the Insurers. 17. This Court is of opinion that the Tribunal having returned a finding of contributory negligence to the extent of 50% each between the ill-fated Jeep and the UPSRTC Bus, it is difficult to disturb that finding in the absence of any positive evidence brought to the notice of this Court by the claimants to show that it was a different percentage of negligence on the part of the ill-fated Jeep's driver or it was cent per cent his fault. Even otherwise, it would now not be open to disturb that finding, because on the foot of it the claimants have settled the matter with the UPSRTC before the Lok Adalat. The claim, therefore, that now proceeds is confined to the owner and the Insurers. 18. Whatever enhancement of compensation is granted by this Court, if at all, the same would be limited to 50% of the determination, the other 50% having been settled in terms of the compromise with the UPSRTC. 19. The next question which arises is whether the Insurers have rightly been discharged of their liability by the Tribunal or is it a case where the Insurers ought to be saddled with the liability of making good the compensation awarded with a right to recover from the owner. It is true that the driving licence held by the driver of the ill-fated Jeep was a licence to drive a motorcycle and a light motor vehicle, which authorizes a person to drive a private vehicle. It was not endorsed by the Licensing Authority authorizing the licensee to drive a commercial light motor vehicle, carrying passengers. 20. It is true that the driving licence held by the driver of the ill-fated Jeep was a licence to drive a motorcycle and a light motor vehicle, which authorizes a person to drive a private vehicle. It was not endorsed by the Licensing Authority authorizing the licensee to drive a commercial light motor vehicle, carrying passengers. 20. The Tribunal has recorded a finding that the facts and evidence on record show that the ill-fated Jeep was carrying gratuitous passengers, though there is nothing expressly said in the affidavit of Hamidunnisha, that has been filed in lieu of the claimant's examination-in-chief, that the deceased boarded the vehicle after paying some kind of a fare. This Court is inclined to agree with the Tribunal on this issue. The reason is that apparently the owner has not raised a specific plea in the written statement that he was carrying passengers, non-gratuitously or introducing circumstances to show some kind of a personal relationship between the deceased or his family and the owner. The Jeep was full of passengers unrelated to the owner from which a presumption about gratuitous carriage of passengers must be raised. There is nothing on record to rebut the presumption that the passengers on board the ill-fated Jeep, none of whom appear to be related to the owner or his acquaintances or friends, were gratuitous. The Jeep was clearly being plied as a passenger vehicle for hire. 21. The Court's inference in this regard must also rest on judicial notice of the reputed fact that vehicles of this type are invariably used as passenger vehicles for hire, though registered as private ones. The Court, therefore, finds that while the driver of the Jeep may not be holding a valid licence, authorizing him to drive passenger vehicles used for commercial purposes, the ill-fated Jeep was nevertheless insured by the Insurers. At the same time, the driving licence not being one which was endorsed to drive a commercial or passenger vehicle, there is a breach of the insurance policy entitling the Insurers to exoneration from their liability to substantively indemnify in terms of the policy. But, they ought to be directed to pay the claimants and recover from the owner. 22. At the same time, the driving licence not being one which was endorsed to drive a commercial or passenger vehicle, there is a breach of the insurance policy entitling the Insurers to exoneration from their liability to substantively indemnify in terms of the policy. But, they ought to be directed to pay the claimants and recover from the owner. 22. In Shamanna and another v. Divisional Manager, Oriental Insurance Company Limited and others, (2018) 9 SCC 650 , the relevant facts were that the deceased was travelling by a Jeep, negligently driven by its driver. The door of the vehicle suddenly opened and the deceased was thrown out of the vehicle leading to his death. The deceased was a young man and his parents claimed compensation. The Tribunal awarded compensation with a direction to pay and recover since the Jeep driver had no valid driving licence, when the accident happened. On an appeal by the Insurance Company and by the claimants as well, the High Court enhanced the compensation, but set aside the direction to pay and recover. It was in those circumstances that on the claimants' appeal by special leave, the Supreme Court after referring to the decision in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 held in Shamanna (supra): “11. In the present case, to deny the benefit of “pay and recover”, what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathneni [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] , the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that : (SCC p. 786, para 5) “5. In Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] , the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that : (SCC p. 786, para 5) “5. If the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle.” 12. The above reference in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of on 17-9-2013 [National Insurance Co. Ltd. v. Parvathneni, (2018) 9 SCC 657 ] by the three-Judge Bench keeping the questions of law open to be decided in an appropriate case. 13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment [Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored. 14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan [Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC 224 : 2005 SCC (Cri) 148] wherein this Court held that : (SCC p. 226, para 8) “8. … For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.” 23. Therefore, this Court is of opinion that whatever liability is found for the owner, the Insurers would be liable to make good the compensation awarded and recover the same from the owner through an application made to the Tribunal. 24. This spares for the Court the question whether compensation has been validly determined by the Tribunal. The claimants have sought enhancement and say that the compensation as assessed is far on the lower side. They say, it is against the settled principles. 25. The foremost fact in order to out work the compensation is the monthly income of the deceased. The Tribunal has considered the deceased to be a productive person with some kind of a capability to earn his livelihood. His age has also been considered to be one which would enable him to earn his livelihood. The Tribunal has taken note of the circumstances about the deceased being said to be a power loom mechanic, a fact that has not been denied by the other side. His age has also been considered to be one which would enable him to earn his livelihood. The Tribunal has taken note of the circumstances about the deceased being said to be a power loom mechanic, a fact that has not been denied by the other side. The case about the deceased being the owner of a power loom has, however, been disbelieved for want of evidence. In the totality of circumstances, the Tribunal has determined for the deceased a monthly income of Rs.3000/-. We are in agreement with the aforesaid assessment made by the Tribunal. 26. The deceased had an income of Rs.3000/-per month and a fortiori an income of Rs.36,000/-per annum. Given the fact that his dependents are seven in number, all of whom are the claimants, deduction towards personal and living expenses would have to be made accordingly. 27. Out of the claimants, the deceased's widow is major whereas the six children are all minors. Applying Rule 220-A (2) (iii) of the U.P. Motor Vehicles Rules, 1998 (for short, the Rules of 1998), each child would be considered half a unit, and, therefore, the six children would reckon for three dependents. Thus, working it out, the widow and the six minor children would constitute a total of four dependents. In accordance with rule laid down in Paragraph No.30 of Sarla Verma (Smt) v. Delhi Transport Corporation and another, (2009) 6 SCC 121 , the claimants are entitled to be placed in the bracket of dependent family members being 4-6. The rule in Sarla Verma (supra) aforesaid sanctions a deduction of one-fourth where the number of dependent family members are 4-6. The finding of the Tribunal, directing deduction of a one-third of the deceased's income towards personal and living expenses, is, therefore, erroneous. 28. The Tribunal has adopted a multiplier of 16'. According to the table in Paragraph No.40 of the report in Sarla Verma for the age group 36-40 years, the multiplier to be adopted is 15'; not 16'. 29. The claimants are also entitled to addition of future prospects, which are no longer the preserve of the service class. These are also to be extended to the self-employed or those working on a fixed salary going by the principle laid down by the Supreme Court in National Insurance Company v. Pranay Sethi and others (2017) 16 SCC 680 . The claimants are also entitled to addition of future prospects, which are no longer the preserve of the service class. These are also to be extended to the self-employed or those working on a fixed salary going by the principle laid down by the Supreme Court in National Insurance Company v. Pranay Sethi and others (2017) 16 SCC 680 . In Pranay Sethi (supra), it has been held: “56. The seminal issue is the fixation of future prospects in cases of deceased who are self- employed or on a fixed salary. Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects. It has not, per se, allowed any future prospects in respect of the said category. 57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the self- employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardisation on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable. 58. The controversy does not end here. 58. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826]. Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self-employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.” 30. The next point to be considered is whether future prospects, to which the claimants are entitled, would be governed by the law laid down in Pranay Sethi or Rule 220-A (3) of the U.P. Motor Vehicles Rules, 1998 (for short, the Rules of 1998). This issue is no longer res integra in view of the decision of the Supreme Court in New India Assurance Co. Ltd v. Urmila Shukla and others, 2021 SCC OnLine SC 822, where it was observed: “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. 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. 12. We, therefore, reject the submission advanced on behalf of the appellant and affirm the view taken by the Tribunal as well as the High Court and dismiss this appeal without any order as to costs.” 31. It still remains to be examined whether Rule 220-A(3) of the Rules of 1998, introduced by Notification No. 777/XXX-4- 2011-4(3)-2010 dated 26th September, 2011 i.e. The Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011, would apply retrospectively to an accident that took place prior to the amendment. The issue was answered by a Division Bench of this Court in Sushil Kumar and others v. M/s. Sampark Lojastic Private Limited and others, 2017 (35) LCD 1311. In Sushil Kumar (supra), it was held: "31. Rule 220-A was inserted in the Uttar Pradesh Motor Vehicles Rules, 1998 in view of the various decisions of the law courts for providing benefit on account of future prospects of the injured/deceased. It provides for addition of certain percentage of the income of the injured/deceased in his actual income depending upon the age of the injured/deceased for the purposes of determination of the compensation. The aforesaid Rule came into effect on 26.09.2011 after the decision of the claim petition but before filing of the appeal though the accident took place on 08.05.2010 much before the enforcement of the above Rule. 32. The aforesaid Rule came into effect on 26.09.2011 after the decision of the claim petition but before filing of the appeal though the accident took place on 08.05.2010 much before the enforcement of the above Rule. 32. It is in view of the above that an argument is being raised that Rule 220-A of the Rules which came into effect on 26.09.2011 would not apply to the accident which had taken place on 08.05.2010. 33. In Ram Sarup Vs. Munshi AIR 1963 SC 553 it was laid down that a change in law during the pendency of an appeal has to be taken into account and will cover the rights of the parties. 34. The view expressed above was followed by the Supreme Court in Mula Vs. Godhu AIR 1971 SC 89 . 35. In Dayawati Vs. Inderjit AIR 1966 SC 1423 the court had observed as under:-If the new law speaks in language, which expressly or by clear intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance. 36. In Amarjit Kaur Vs. Pritam Singh AIR 1974 SC 2068 effect was given to the change in law during the pendency of an appeal as the hearing of an appeal under the procedural law of this country is in the nature of rehearing of the suit by superior court. 37. thatIt was in the light of the above decisions in Lakshmi Narayan Guin and others Vs. Niranjan Modak AIR 1985 SC 111 it was held that a change in law during the pendency of an appeal has to be taken into account and will cover the right of the parties. 38. The aforesaid decision was followed by a Division Bench of this court in U.P. State Road Transport Corporation Vs. Smt. Madhu Sharma and others, 2003 (4) AWC 2620 which was a case in relation to the provisions of the Motor Vehicles Act and it was observed that it is apparent that the change in law during the pendency of the original proceedings has to be taken into account so as to cover the rights of the parties. 39. Smt. Madhu Sharma and others, 2003 (4) AWC 2620 which was a case in relation to the provisions of the Motor Vehicles Act and it was observed that it is apparent that the change in law during the pendency of the original proceedings has to be taken into account so as to cover the rights of the parties. 39. In view of above decision the view expressed by the Division Bench of this court in ICICI Lombard (Supra) is not of good law as it does not takes into account the decisions referred to above in holding that the Rule 220-A of the Rules which came into effect on 26.09.2011 would not apply to the accident that took place prior to the said date only for the reason that the Rule was not specifically stated to be retrospective in nature." 32. The law laid down by the Division Bench in Sushil Kumar (supra) binds this Court and computation of future prospects is, therefore, to be made in accordance with the Rule 220-A(3) of Rules, 1998, even though the accident happened long before the amendment. Rule 220-A(3) stipulates that where the age of the deceased is less than 40 years, 50% is to be added to his/her income towards future prospects. 33. There is an issue further raised about non-grant of any compensation by the Tribunal under the conventional heads. Here again, the law down in Pranay Sethi is eloquent, where it has been observed: “48. This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by the Court in Trilok Chandra [UP SRTC v. Trilok Chandra, (1996) 4 SCC 362 ]. Recently, in Puttamma v. K.L. Narayana Reddy [Puttamma v.K.L. Narayana Reddy, (2013) 15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3 SCC (Cri) 574] it has been reiterated by stating : (SCC p. 80, para 54) “54. … we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy.” 49. As far as multiplier or multiplicand is concerned, the same has been put to rest by the judgments of this Court. … we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy.” 49. As far as multiplier or multiplicand is concerned, the same has been put to rest by the judgments of this Court. Para 3 of the Second Schedule also provides for general damages in case of death. It is as follows: “3. General damages (in case of death): The following general damages shall be payable in addition to compensation outlined above: (i) Funeral expenses Rs 2000 (ii) Loss of consortium, if beneficiary is the spouse Rs 5000 (iii) Loss of estate Rs 2500 (iv) Medical expenses — actual expenses incurred before death supported by bills/vouchers but not exceeding Rs 15,000” 50. On a perusal of various decisions of this Court, it is manifest that the Second Schedule has not been followed starting from the decision in Trilok Chandra [UP SRTC v.Trilok Chandra, (1996) 4 SCC 362 ] and there has been no amendment to the same. The conventional damage amount needs to be appositely determined. As we notice, in different cases different amounts have been granted. A sum of Rs 1,00,000 was granted towards consortium in Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149]. The justification for grant of consortium, as we find from Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149], is founded on the observation as we have reproduced hereinbefore. 51. On the aforesaid basis, the Court has revisited the practice of awarding compensation under conventional heads. 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. 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 by Court) 34. The next issue for consideration is compensation that is to be awarded for loss of consortium. We are disposed to hold so because that will bring in consistency in respect of those heads.”(emphasis by Court) 34. The next issue for consideration is compensation that is to be awarded for loss of consortium. This issue fell for consideration before their Lordships of the Supreme Court in Magma General Insurance Company Ltd. v. Nanu Ram alias Chuhru Ram and others, (2018) 18 SCC 130 . In Magma General Insurance Company Ltd. (supra), it has been held: “21. A Constitution Bench of this Court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, “consortium” is a compendious term which encompasses “spousal consortium”, “parental consortium”, and “filial consortium”. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse : [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] 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”. 21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. (emphasis by Court) 35. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. (emphasis by Court) 35. Since 50% of the liability for the compensation payable to the claimants was apportioned to the share of the UPSRTC, with whom the claimants have settled their claim fully and finally before the Lok Adalat, whatever compensation is found due on revision, would be payable by the owner and/ or the Insurers to the extent of 50% alone. Since it has been held that compensation is payable in the first instance by the Insurers, the Insurers are liable to satisfy the award to the extent payable by the owner with liberty to recover from the owner through a miscellaneous application to be made before the Tribunal, executing the award. 36. In view of the aforesaid conclusion, compensation payable to the claimants would have to be worked out in the following manner: (i) Monthly Income (of the deceased) = 3000 (ii) Monthly Income+Future Prospects (monthly income x 50%) = 3000+1500 = 4500 (iii) Annual Income (of the deceased) = 4500x12 54000 (iv) Annual Dependency = Annual Income – one-fourth deduction towards personal expenses of the deceased = 54000-13500 = 40500 (v) Total Dependency = Annual Dependency x Applied Multiplier = 40500x15 = 607500 (vi) Claimants’ entitlement towards conventional heads = Loss of Estate + Funeral Expenses + dependents’ Consortium =15000+15000+40000x7 = 310000 The total compensation would therefore, work out to a figure of Rs. 607500+ Rs. 310000 = 917500 Less 50% of the compensation apportioned to the share of the UPSRTC settled in Lok Adalat = 917500/2 = 458750 In the result, this appeal is allowed in part. The impugned award passed by the Tribunal is modified and the compensation awarded and payable is enhanced to a sum of Rs. 4,58,750/-. The aforesaid sum of money shall be payable in the first instance by the Insurers with liberty to recover from the owner through a miscellaneous application to be made before the Tribunal. The said sum of money shall carry simple interest at the rate of 7% per annum from the date of institution of the claim petition, until realization. 4,58,750/-. The aforesaid sum of money shall be payable in the first instance by the Insurers with liberty to recover from the owner through a miscellaneous application to be made before the Tribunal. The said sum of money shall carry simple interest at the rate of 7% per annum from the date of institution of the claim petition, until realization. Any sum of money already deposited with the Tribunal by the owner, pursuant to the impugned award, shall be adjusted against the award. The inter se apportionment of compensation shall be done in the same ratio as directed by the Tribunal. Costs easy.