Patna High Court
ICICI Lombard General Insurance Company LimitedversusAsha Devi
- Decided
- Disposal
- DISPOSED
- Bench
- SUNIL DUTTA MISHRA
Holding
The High Court modified the Tribunal’s award, increasing the compensation to Rs.17,50,000 by adjusting the personal expense deduction to 1/4th, accepting the deceased’s age as 55, and adding enhanced conventional heads.
Summary
The Patna High Court heard a Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988 filed by ICICI Lombard General Insurance Company challenging the compensation awarded by the Motor Vehicle Accident Claim Tribunal to the widow and minor children of the deceased Subodh Mahto. The Tribunal had fixed Rs.16,93,160 as compensation based on a monthly income of Rs.13,500, a 1/5th deduction for personal expenses, and a multiplier of 11, along with conventional heads. The insurer argued that the claimants had not proved the deceased's income, that the deduction should be 1/4th, and that the age and income calculations were erroneous. The High Court held that the Tribunal’s findings on the accident and liability were correct but modified the quantum, increasing the deduction to 1/4th, accepting the age of 55 years, and adding enhanced amounts for loss of estate, consortium and funeral expenses, resulting in a total compensation of Rs.17,50,000 with interest. The court ordered the insurer to pay this amount within two months, modifying the Tribunal’s award.
Issues considered
- Whether the quantum of compensation awarded by the Tribunal is correct.
- Whether the deduction for personal and living expenses should be 1/4th instead of 1/5th.
- Whether the age of the deceased should be taken as 55 years based on the post‑mortem report.
- Whether the monthly income of the deceased can be fixed on the basis of witness testimony in the absence of documentary proof.
- Whether the appellate court can enhance compensation under Order XLI Rule 33 of the CPC even without a cross‑appeal.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XLI Rule 33
- Motor Vehicles Act, 1988 — s. 173
Subjects
- motor vehicle accident
- compensation
- insurance liability
- quantum of damages
- deduction percentage
- multiplier
- conventional heads
- Section 173
- Motor Vehicles Act
- appellate jurisdiction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.707 of 2021
======================================================
ICICI Lombard General Insurance Company Limited Off.- ICICI Lombard
House, 414 Veer Sawarkar Marg, Near Siddhi Vinayak Temple, Prabhadevi,
Mumbai, 400 025, Appeal and appellant through Manager (Legal), ICICI
Lombard General Insurance Company Limited, 2nd Floor, Krishna Bhawan,
Above Axis Bank, Near Dakbanglow Chauraha, Patna- 1.
... ... Appellant/s
Versus
1. Asha Devi wife of Late Subodh Mahto Resident of Village- Khopaiti, Tola-
Koriyani, Ward No.- 14, P.O.- Balam, P.S.- Madhepura, District-
Madhepura.
2. Sarwan Kumar son of Late Subodh Mahto minor and under the guardianship
of mother, i.e. Respondent no. 1 Resident of Village- Khopaiti, Tola-
Koriyani, Ward No.- 14, P.O.- Balam, P.S.- Madhepura, District-
Madhepura.
3. Guriya Kumari daughter of Late Subodh Mahto minor and under the
guardianship of mother, i.e. Respondent no. 1 Resident of Village- Khopaiti,
Tola- Koriyani, Ward No.- 14, P.O.- Balam, P.S.- Madhepura, District-
Madhepura.
4. Roshan Kumar son of Late Subodh Mahto minor and under the guardianship
of mother, i.e. Respondent no. 1 Resident of Village- Khopaiti, Tola-
Koriyani, Ward No.- 14, P.O.- Balam, P.S.- Madhepura, District-
Madhepura.
5. Pappu Kumar son of Late Subodh Mahto minor and under the guardianship
of mother, i.e. Respondent no. 1 Resident of Village- Khopaiti, Tola-
Koriyani, Ward No.- 14, P.O.- Balam, P.S.- Madhepura, District-
Madhepura.
6. Bechan Jha son of Sikendar Jha Resident of Village- Kahara, Dhabauli, P.O.-
Kahra Bhabauli, P.S.- Saurbazar, District- Saharsa (Owner)
7. Ritesh Kumar Bharti son of Bechan Jha Resident of Village- Kahra, P.S.-
Saurbazar, District- Saharsa (Driver)
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Durgesh Kumar Singh, Advocate
For the Respondent/s : Mr. Amandeep Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
Date : 30-01-2026
1. Heard the learned counsel for the appellant as
well as the learned counsel for the respondents.
Patna High Court MA No.707 of 2021 dt.30-01-2026
2/17
2. This Miscellaneous Appeal has been filed under
Section 173 of the Motor Vehicles Act, 1988 (hereinafter
referred to as “Act”) on behalf of the appellant/ICICI Lombard
General Insurance Company Limited against the compensation
amount awarded to the respondent nos.1 to 5/claimants by the
learned Court of District Judge-cum-Motor Vehicle Accident
Claim Tribunal, Madhepura (hereinafter referred to as
“Tribunal”) vide Judgment and Award dated 16.06.2021 passed
in M.V. Claim Case No.13 of 2016.
3. The learned Tribunal allowed the claim
application and held that claimants are entitled to receive
Rs.16,93,160/- as compensation and accordingly the ICICI
Lombard General Insurance Company Limited (hereinafter
referred to as “Insurance Company”) has been directed to make
payment of the compensation amount as per the order along
with the interest @6% per annum from the date of filing the
claim petition i.e., 02.08.2016 till its realization within 90 days.
In case of failure, the claimants will be at liberty to realize the
awarded compensation amount @9% interest per annum. It
further held that in case there is violation of policy conditions,
the Insurance Company will have liberty to recover the
compensation amount from the owner of the vehicle (respondent
Patna High Court MA No.707 of 2021 dt.30-01-2026
3/17
no.6).
4. The details of the calculation of compensation
amount made by the learned Tribunal are as under:
S.No Particulars Calculation Net Amount
1. Monthly Income Rs.450 x 30 Rs.13,500/-
2. Annual Income Rs.13,500 x 12 Rs.1,62,000/-
3. Addition: Future Prospects 10% Rs.1,78,200/-
th
4. 1/5th deduction towards 1/5 of Rs.35,640/-
personal expenses of the Rs.1,78,200/-
deceased
5. Annual Income after Rs.1,78,200- Rs.1,42,560/-
deduction Rs.35,640/-
6. Multiplier (11) Rs.1,42,560 x 11 Rs.15,68,160/-
7. Loss of Consortium ------ Rs.1,00,000/-
8. Funeral Expenses ------ Rs.25,000/-
9. Total Compensation ------ Rs.16,93,160/-
5. The appellant/Insurance Company being not
satisfied and aggrieved by the impugned judgment and award
dated 02.08.2016 passed by the learned Tribunal, filed the
present appeal for setting aside the impugned judgment.
6. The brief facts giving rise to the present
Miscellaneous Appeal are that on 04.05.2016 at about 08:00
PM, the deceased, Subodh Mahto, was returning to his home by
an auto-rickshaw bearing Registration No. BR-43P-4110
(hereinafter referred to as “offending vehicle”). When the
vehicle reached near Sukhasan Temple, the driver, owing to rash
and negligent driving, lost control over the offending vehicle, as
Patna High Court MA No.707 of 2021 dt.30-01-2026
4/17
a result of which it overturned and fell into a nearby field. In the
said accident, the deceased came under the overturned offending
vehicle, sustained grievous injuries and subsequently
succumbed to the same during treatment in the hospital. On the
basis of the fardbeyan of the son of the deceased, namely Laloo
Kumar Mahto, Madhepura P.S. Case No. 251 of 2016 dated
05.05.2016 was instituted under Sections 279, 337, 338 and
304-A of the Indian Penal Code. Upon completion of
investigation, the police submitted charge-sheet against the
owner of the offending vehicle, Bechan Jha (respondent no.6
herein) under Sections 279, 338 and 304-A of the Indian Penal
Code, whereafter the learned Chief Judicial Magistrate,
Madhepura, took cognizance of the offences accordingly.
7. Claimants/ respondent nos.1 to 5, namely Asha
Devi, wife of deceased (claimant/respondent no.1); Sarwan
Kumar, son of deceased (claimant/respondent no.2); Guriya
Kumari, daughter of deceased (claimant/respondent no.3);
Roshan Kumar, son of deceased(claimant/respondent no.4); and
Pappu Kumar, son of deceased (claimant/respondent no.5) have
filed the case bearing M.V. Claim Case No.13 of 2016 before
the learned Tribunal. Moreover, O.P. no.1/respondent no.6
(Bechan Jha) is the owner of the offending vehicle; O.P.
Patna High Court MA No.707 of 2021 dt.30-01-2026
5/17
no.2/appellant (Insurance Company) is insurer of the offending
vehicle; and O.P. no.3/respondent no.7 (Ritesh Kumar Bharti) is
driver of the offending vehicle.
8. It is further claimed that the deceased was aged
about 49 years at the time of alleged occurrence, working as a
kiln labourer wherein he was earning Rs.450/- per day by which
he was maintaining the claimants. The claimants, who are
widow and minor children of the deceased, have claimed
compensation to the tune of Rs.25,78,325/-.
9. In the written statement filed on behalf of
appellant/Insurance Company, it is stated that the case is
suffering from mis-joinder and non-joinder of necessary party
and the claimants have got no cause of action, therefore the case
is not maintainable. It is further stated that the owner of
offending vehicle be directed to produce and prove the policy of
insurance. Furthermore, it is stated that neither the driver hold
valid and effective driving license at the time of occurrence nor
the offending vehicle was plying on the road with a valid road
permit. Hence, the owner of the vehicle has violated the terms
and conditions of the Insurance Policy and the Insurance
Company is not liable to pay any compensation. Moreover, it is
stated that besides other factors, the claimants have not proved
Patna High Court MA No.707 of 2021 dt.30-01-2026
6/17
the income and age of the deceased.
10. In written statement, filed jointly on behalf of
the respondent nos.6 & 7/O.P. nos. 1 & 3, owner and driver of
the offending vehicle respectively, it is stated that O.P. no.1 is
the registered owner of the offending vehicle bearing
Registration no. BR-43P-4110 and at the relevant time all the
papers relating to the offending vehicle were valid and up-to-
date and also the same was duly insured with the Insurance
Company (appellant/O.P. no.2). The respondent no.7/ O.P. no.3
is the driver of the aforesaid offending vehicle and his license
was also valid on the date and time of accident. Thus,
accordingly the whole liabilities of payment of compensation
lies on the insurer i.e., the Insurance Company. It is further
stated that there is no violation of any terms and conditions of
the Insurance Policy and the offending vehicle was not being
driven rashly and negligently.
11. On the basis of pleading and submissions
advanced on behalf of the parties, the learned Tribunal framed
the following issues:
(I) Is the suit as framed and filed
maintainable ?
(II) Has the applicant any right or cause of
action for filing this application ?
(III) Is the story of the accident as said by
Patna High Court MA No.707 of 2021 dt.30-01-2026
7/17
the applicant correct?
(IV) Whether the deceased Subodh Mahto
died due to rash and negligent driving of the
driver of auto-rickshaw bearing No. BR 43 P
4110 on 04.06.2016 ?
(V) Whether the auto-rickshaw bearing No.
BR 43 P 4110 was insured on the date of
accident with I.C.I.C.I. Lombard General
Insurance company ?
(VI) Whether the petitioner is entitled for the
compensation if any to what extent?
12. In support of the claim petition, claimants have
examined four witnesses mentioned hereinunder:
C.Ws. Names
C.W.-1 Asha Devi (wife of the deceased)
C.W.-2 Laloo Kumar Mahto (son of the deceased)
C.W.-3 Upendra Mahto (co-worker)
C.W.-4 Ravindra Yadav (passenger of different auto-
rickshaw and a co-worker at the same kiln)
The claimants have also filed documentary evidence in support
of their claim petition. i.e., certified copy of F.I.R. (Ext.1),
certified copy of of charge-sheet (Ext.2), certified copy of bail-
bond (Ext.3), certified copy of indemnity bond (Ext.4), photo
copy of post-mortem report (Ext.5), photo copy of permit
(Ext.6), photo copy of insurance policy (Ext.7), inquest report of
deceased Subodh Mahto (Ext.8), photo copy of Aadhaar Card of
deceased Subodh Mahto (Ext.9) and photo copy of voter
identity card of deceased Subodh Mahto (Ext.10).
Patna High Court MA No.707 of 2021 dt.30-01-2026
8/17
13. No oral or documentary evidence have been
produced by the appellant/O.P. no. 2 in rebuttal of the claim.
However, O.P. Nos. 1 & 3 exhibited photocopy of driving
license of the driver Ritesh Kumar Bharti and examined Bechan
Jha (D.W.-1) in support of their case.
14. After hearing the parties and considering the
materials on record, the learned Tribunal held that the death of
deceased was caused in the motor vehicle accident due to rash
and negligent driving by the driver of the offending vehicle
which was insured with the Insurance Company at the relevant
period of time and the said Insurance Company is liable to pay
the amount of compensation to claimants who are wife and
minor sons and daughter of the deceased. The learned Tribunal
has held that the claimants are entitled for compensation to the
tune of Rs.16,93,160/- along with simple interest as stated
above.
15. Learned counsel for the appellant/Insurance
Company has submitted that the claimants have not produced
any chit of paper to prove regarding income of the deceased,
hence, the calculation on monthly income of the deceased is
improper and unjustified in facts and circumstances of the case
and the same requires interference by this Court. It is submitted
Patna High Court MA No.707 of 2021 dt.30-01-2026
9/17
that the deceased was working as a labourer at a brick kiln and
this type of work cannot be classified as semi-skilled or skilled,
as it does not require any technical expertise in brick making. It
is further submitted that the income assessed by the learned
Tribunal is on a very high side and the same may be calculated
as per the notified minimum wages of Bihar Government (w.e.f.
01.04.2016) which was prevailing on the date of occurrence.
Moreover, it is submitted that the learned Tribunal has deducted
1/5th instead of 1/4th towards personal and living expenses which
is not in compliance with the law. Therefore, the impugned
judgment and award is fit to be set aside.
16. Per contra, learned counsel for the
respondents/claimants has submitted that the learned Tribunal
considering the materials on record has rightly fixed the
monthly income of the deceased to grant the just compensation
which the appellant/Insurance Company is liable to pay which
requires no interference by this Court. However, it is submitted
on behalf of the claimants that the age of deceased as per the
Aadhaar Card and the Voter Identify Card was 49 years at the
time of accident but in the Inquest panchnama and the
postmortem report, his age was wrongly mentioned to be 55
years and the learned Tribunal has accepted the age of the
Patna High Court MA No.707 of 2021 dt.30-01-2026
10/17
deceased on the basis of the postmortem report of the deceased
which is erroneous. He further submitted that for the
compensation under conventional heads, the learned Tribunal
has not awarded just compensation and the same has not been
calculated as per the settled principle of law as held by the
Hon’ble Supreme Court in the cases of National Insurance
Company Ltd. v. Pranay Sethi reported in (2017) 16 SCC 680;
United India Insurance Company Limited v. Satinder Kaur @
Satwinder Kaur and Others reported in (2021) 11 SCC 780; and
Rojaline Nayak & Ors. v. Ajit Sahoo & Ors. reported in 2024
SCC OnLine 1901, and the same are required to be enhanced,
accordingly.
17. In reply to the aforesaid submission on behalf
of the respondent nos.1 to 5/claimants, learned counsel for the
appellant/Insurance Company submitted that the claimants have
not challenged the impugned judgment and award by filing
cross-appeal or cross-objection. It is submitted that the Hon’ble
Supreme Court relying on K.S.Puttaswamy v. Union of India,
reported in (2019) 1 SCC 1 in Saroj & Ors. v. IFFICO-TOKIO
General Insurance Company & Ors., reported in 2024 SCC
OnLine SC 3038 observed that an Aadhaar Card can be used to
establish identity, it is not per se proof of date of birth.
18. Having heard the learned counsel for the parties,
Patna High Court MA No.707 of 2021 dt.30-01-2026
11/17
on perusal of the materials available on record and considering
the submissions made, it appears that, in the present case, there is
no dispute as to the occurrence of accident in question in which
deceased lost his life and liability of the appellant/Insurance
Company to pay the compensation to the claimants. The only
question that remains to be decided by this Court is on the aspect
of the quantum of compensation awarded.
19. Law is well settled that the appellate court under
Order XLI Rule 33 of the Code of Civil Procedure, 1908 has
power to make an order to enhance the compensation even
though the claimant has not filed any cross-appeal or cross-
objection. The claimant in a claim for award of compensation
under Section 166 of the Act is entitled for just compensation
which has to be equitable and fair.
20. The proceeding in a claim petition for
compensation before the learned Tribunal is neither suit nor an
adversarial lis and the claimant is not required to prove his case
as required in a criminal trial. In the present case, the respondent
nos.1 to 5/claimants have not submitted any document on record
to specifically prove the earning of the deceased but C.W.-3 and
C.W.-4 who were co-workers of the deceased have deposed in
their examination that the deceased was earning Rs.450/- per day
and considering the nature of his job as a kiln labourer, it is
Patna High Court MA No.707 of 2021 dt.30-01-2026
12/17
reasonable to rely on the statement of the above C.Ws. It is not
practical to expect from the claimants in the facts and
circumstances of the case to produce documentary evidence in
order to substantiate the income of the deceased who was
working as daily worker and there is no evidence on record
contrary to the claim made by the claimants. The notification of
Minimum Wages Act can be a guiding factor only in a case
where there is no clue available to evaluate the monthly income
of the deceased where positive evidence has been led, no reliance
on notification could be placed [refer:Gurpreet Kaur and Ors. v.
United India Insurance Company Limited and Ors., reported in
2022 SCC OnLine SC 1778]. Therefore, fixation of monthly
income of Rs.13,500/- in the present case is appropriate and
cannot be regarded as disproportionate or arbitrary and the same
requires no interference by this Court. It is well settled that
assessment of compensation cannot be done with mathematical
precision. The Act is a beneficial and welfare legislation which
also provides for assessment of just and fair compensation. It is
the duty of the Court to award ‘just compensation’.
21. The multiplier factor is dependent on the age,
and there is sufficient indication that the deceased was aged
about 55 years as in accordance with the post-mortem report
which is a scientific assessment of the age of the deceased. The
Patna High Court MA No.707 of 2021 dt.30-01-2026
13/17
Hon’ble Supreme Court in Sunita and Ors. v. Vinod Singh and
Ors., reported in 2025 SCC OnLine SC 586 observed that in the
absence of material indicating to the contrary, there is no
inhibition to accept the age of the deceased as per the post-
mortem report.
22. The learned Tribunal has considered the age of
deceased to be 55 years based on the post-mortem report and
accordingly, applied the multiplier of 11. In view of the
judgment of the Hon’ble Supreme Court in Saroj & Ors v.
IFFICO-TOKIO General Insurance Company & Ors. (supra)
wherein it has been observed that an Aadhaar Card is not per se
proof of the date of birth and observation of the Hon’ble
Supreme Court in Sunita and Ors. v. Vinod Singh and Ors.
(supra) that in the absence of material indicating to the contrary,
there is no inhibition to accept the age of the deceased as per the
post-mortem report, the finding of the learned Tribunal cannot
be said to be perverse. There is no infirmity in finding of the
learned Tribunal that the deceased was aged about 55 years.
23. The five-judge bench of the Hon’ble Supreme
Court in National Insurance Company Ltd. v. Pranay Sethi
(supra) affirmed the principle laid down in Sarla Verma v.
Delhi Transport Corporation, reported in (2009) 6 SCC 121
Patna High Court MA No.707 of 2021 dt.30-01-2026
14/17
concurred the principle with respect to future prospects and
deductions. With respect to deductions towards personal and
living expenses of the deceased, the Hon’ble Supreme Court in
the aforesaid case, inter alia, held that where the deceased was
married, the deductions towards personal and living expenses of
the deceased should be one-fourth (1/4th) where the number of
dependent family is four to six. In the present case, the
dependents of the deceased are five i.e. claimant nos.1 to 5.
Accordingly, the applicable deduction shall be 1/4th instead of
1/5th taken by the learned Tribunal which requires modification
in the computation of compensation.
24. With regard to the loss of love and affection,
Pranay Sethi (supra) grant of Rs.40,000/- per head with
escalation of 10% every three years as loss of consortium which
has been interpreted in Magma General Insurance Company
Ltd. v. Nanu Ram, reported in (2018) 18 SCC 130 to include
spousal, parental and filial consortium.
25. The three-judge bench of the Hon’ble Supreme
Court in Satinder Kaur (supra), approved comprehensive
definition given to the expression ‘consortium’ and laid down
that consortium is not only limited to spousal consortium but it
also includes parental as well as filial consortium.
Patna High Court MA No.707 of 2021 dt.30-01-2026
15/17
26. In so far as the conventional heads are
concerned, the deceased Subodh Mahto left behind his widow
and four minor children as his dependents. On the basis of
judgments of the Hon’ble Supreme Court in Pranay Sethi
(supra); Magma General Insurance Co. Ltd. v. Nanu Ram
(supra); Satinder Kaur @ Satwinder Kaur and Others (supra);
and Rojaline Nayak & Ors. v. Ajit Sahoo & Ors. (supra), the
following amounts are awarded compensation under the
conventional heads:
S.No. Heads Calculation Compensation
Amount
1. Loss of Estate Rs.15,000 + 10% Rs.18,150/-
enhanced twice
2. Loss of Consortium Rs.40,000 + 10% Rs.2,42,000/-
(Rs.48,400 x 5) enhanced twice
3. Funeral expenses Rs.15,000 + 10% Rs.18,150/-
enhanced twice
4. Total --------- Rs.2,78,300/-
27. Thus, in view of the facts stated herein above, in
opinion of this Court, the computation of the total amount of
compensation payable will be as follows:-
S.No. Heads Calculation Amount
1. Monthly Income Rs.450 x 30 Rs.13,500/-
2. Annual Income Rs.13,500 x 12 Rs.1,62,000/-
3. Addition: Future Rs.16,200 + Rs.1,62,000 Rs.1,78,200/-
Prospects (10%)
4. 1/4th Deduction 1/4th of Rs.1,78,200 Rs.44,550/-
towards personal and
living expenses
5. Annual Income (after Rs.1,78,200 - Rs.44,550 Rs.1,33,650/-
1/4th deduction)
6. Multiplier (11) Rs.1,33,650 x 11 Rs.14,70,150/-
Patna High Court MA No.707 of 2021 dt.30-01-2026
16/17
7. Compensation under As per calculation chart in Rs.2,78,300/-
conventional heads para 26
8. Total Compensation Rs.14,70,150 + Rs.2,78,300 Rs.17,48,450/-
28. The claimants/respondent nos.1 to 5 stand
entitled to a total compensation to the tune of Rs.17,48,450/-
which is in the interest of just compensation is rounded off to
Rs.17,50,000/- with simple interest at the rate of 9 % per annum
calculated from the date of filing of the claim case till its
realization. The appellant/Insurance Company shall pay the said
compensation amount to the claimants/respondent nos.1 to 5
deducting any amount which has already been paid to the them.
The amount shall be deposited within two months from today
and to be paid to the respondent nos.1 to 5 according to law.
29. It is clarified that the rate of interest would be
pro rata, if any amount has been paid for the period for which
such interest is to be paid, taking into consideration the date on
which such interim or part payment has been made by the
appellant/Insurance Company to the claimants.
30. The Judgment and Award dated 16.06.2021
passed by the learned Tribunal in M.V. Claim Case No.13 of
2016 stands modified to the aforesaid extent. Accordingly, this
appeal is disposed of with the aforesaid modification in the
impugned Judgment and Award.
Patna High Court MA No.707 of 2021 dt.30-01-2026
17/17
31. There shall be no order as to costs.
32. Pending applications, if any, shall stand
disposed of.
33. Let the Trial Court Records be returned
forthwith to the Court concerned.
34. The office is directed to return the statutory
amount to the appellant/Insurance Company, if deposited at the
time of this appeal.
(Sunil Dutta Mishra, J)
harish/-
AFR/NAFR AFR
CAV DATE 16.01.2026
Uploading Date 30.01.2026
Transmission Date
Checking your session…