U.P. State Road Transport Cor. Thru. ... vs Smt. Meghkaur And Anr. on 15 November, 2022

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Allahabad High Court

U.P. State Road Transport Cor. Thru. ... vs Smt. Meghkaur And Anr. on 15 November, 2022

1. This first appeal from order arises out of the judgment and award dated 29.9.2012 passed by the learned Motor Accident Claims Tribunal/learned District and Sessions Judge, Court No.4, Ghaziabad in Motor Accident Claim Petition No.261 of 2011 (Smt. Meghkaur and another v. U.P.State Road Transport Corporation.

2. The first appeal from order has been filed by the U.P. State Road Transport Corporation contesting its liability to pay and also the quantum of compensation awarded by the learned Tribunal. An oral cross-objection has been raised on behalf of the respondents-claimants seeking enhancement of compensation.

II. Case of the claimants and the respondents before the learned Tribunal:

3. Briefly the case of the claimants before the learned Tribunal was that the deceased-Bhikam Singh died in a motor accident on 29.12.2010, which was caused by rash and negligent driving of the UPSRTC bus driver. The deceased was riding a bicycle when he was hit by the offending UPSRTC bus. The claimants were dependant on the deceased and were entitled for compensation from UPSRTC. The UPSRTC resisted the claim of the claimants by filing a written statement. Both parties adduced evidence at the trial.

III. Compensation awarded by the learned tribunal:

4. Learned tribunal found that the accident was caused by the rash and negligent driving of the driver of UPSRTC bus number.

5. The learned tribunal in the impugned judgment dated 29.09.2012 awarded compensation which is depicted in a tabulated form hereunder:

Sr. No. Heads Amount (in rupees) 1 Monthly Income (A) 5,500/- p.m. from private job and 3000/- p.m. from agriculture 2 Annual Income (B) 8,500/-

Future prospects (C) 30% of 8,500/- = 11,050/-

Annual Income + Future Prospects (B + C = D) 19,550/-

Total income after deduction (E) 11,050 -3,683 = 7,367/-

Multiplier (F) 11 7 Total loss of dependency (E x F) 7367 x 12 x 11 = 9,72,444/-

Funeral expenses 10,000/-

Loss of love and affection 25,000/-

Loss estate 25,000/-

Loss of consortium 30,000/-

Total compensation 10,62,444/-

Interest 7.50%

6. Shri Sanjeev Kumar Yadav, learned counsel for the appellant has assailed the award on these two issues. The learned tribunal erred by finding against the appellant on the issue of contributory negligence. The compensation awarded to the claimants-respondents was excessive.

7. Shri Nigamendra Shukla, learned counsel for the respondents-claimants has raised an oral cross objection contesting the quantum of the awarded compensation. According to the learned counsel for the respondents-claimants, the income of the deceased was improperly assessed. The compensation is liable to be enhanced.

Rejoining the issue, the learned counsel for the appellant-UPSRTC disputes the maintainability of the cross objection at the appellate stage.

IV. Issues for consideration:

8. After advancing their arguments, learned counsel for both the parties agree that though many grounds have been pleaded, only the following questions fall for consideration in this appeal:-

(A). Whether oral cross objections can be raised by the claimants at the stage of appeal?

(B). Whether the driver of the UPSRTC bus was solely responsible for the accident or it was a case of contributory negligence?

(C). Whether learned Tribunal correctly computed the compensation under these various heads:-

(i) income,

(ii) conventional expenses,

(iii) future prospects,

(iv) multiplier, and

(v) interest while computing the compensation?

V.(A) Issue of oral cross objection:

9. The question whether oral objections can be raised for an enhancement of compensation at the stage of appeal has been well settled by good authorities in point.

10. The jurisdiction of the appellant court to allow a party to take oral objections is traceable to the power of the court of appeal enumerated in Order XLI Rule 33 of the CPC. The Order XLI Rule 33 of the CPC is reproduced hereinafter :-

"Rule 33. Power of Court of Appeal.-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further other decree or order as the case may require, and this order may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decree."

(emphasis supplied)

11. The amplitude of the provision ensures that the arms of law are long enough to reach injustice, and the arms of the Court are enough to serve justice. Drawing its power from the aforesaid provision, the appellate court may pass orders to serve the ends of justice.

12. More specifically the beneficent nature of the legislation and the statutory mandate of the Motor Vehicles Act, 1988 enjoin the appellate court to exercise its powers under Order 41 Rule 33 to award just compensation. [See: Jitendra Kimshankar Trivedi and others vs. Kasam Daud Kumbhar and others1, Arun Kumar Agarwal and another vs. National Insurance Company Ltd. and others2]

13. The scope of Order 41 Rule 33 of the CPC the Supreme Court in Mahant Dhangir and another v. Madan Mohan and others3 held:-

"11.The next question for consideration is whether the cross-objection was maintainable against Madan Mohan, the co-respondent, and if not, whether the Court could call into aid Order 41 Rule 33 CPC. For appreciating the contention it will be useful to set out hereunder R. 22 and R. 33 of order 41:

"R. 22 Upon hearing, respondent may object to decree as if he had preferred separate appeal. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

R. 33 Power of Court of Appeal.

The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further other decree or order as the case may require, and this order may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decree."

14. The same view was reiterated in Delhi Electric Supply Undertaking vs. Basanti Devi4.

15. Adverting to the extent of powers under Order XLI Rule 33 of the CPC, this Court in National Insurance Co. Ltd. vs. Smt. Vidyawati Devi and others5 held thus:

"Order XLI Rule 33 of the Code of Civil Procedure prescribing the power of court of appeal clearly provides that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made as the case may require, and this power may be exercised in favour of all or any of the respondents or parties though they may not have filed any cross appeal or objection."

16. Following Vidyawati Devi (supra) was followed in New India Assurance Co. Ltd. v. Smt. Suman Mishra and others6. Wherein Thaker, J. permitted counsels to raise oral objections and enhanced the compensation even in absence of written cross objections in appeal by holding:

"44. It is submitted that the amount which is granted is not just compensation and it is orally submitted that the amount of compensation requires to be enhanced in light of Division Bench decision of this High Court in First Appeal From Order No.2389 of 2016 ( National Insurance Co. Ltd. Versus Smt. Vidyawati Devi And 2 Others) decided on 27.7.2016 wherein it is held that under Order 41 Rule 33 of Code of Civil Procedure, amount of compensation can be enhanced even if there is no written appeal or written cross objection. This applies to this case also recently it has been held by Apex Court in North East Karnataka Road Transport Corporation Vs. Smt. Sujatha, AIR 2018 SC 5593 that for beneficial legislation the Court should grant enhancement even if other side is not present.

45. The principles of law pertaining to grant of just compensation cannot be said to have been adhered by Tribunal and therefore, it will have to be re-decided as per the decision in First Appeal From Order No.2389 of 2016 ( National Insurance Co. Ltd. Versus Smt. Vidyawati Devi And 2 Others) decided on 27.7.2016."

17. When the conditions precedent for raising cross objections were satisfied, this Court in Vidyawati Devi (supra) was not found wanting in entertaining the cross objections by holding thus:

"We are of the considered view that the conditions as laid down in provisions of Order XLI Rule 33 are satisfied in the present case. In Delhi Electric Supply Undertaking (Supra) the Hon'ble Apex Court has observed that when circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the court cannot be found wanting when it comes to exercise its powers."

18. In wake of the preceding discussion and authorities in point, the oral cross objections on behalf of the claimants-respondents are liable to be heard. However, this Court may mould the relief appropriately to obviate prejudice to either parties.

V.(B) Issue of contributory negligence in the accident:

19. The claimants introduced P.W.2-Yameen to establish negligent driving by the UPSRTC bus driver. P.W.2-Yameen deposed before the learned tribunal that he had witnessed the accident. P.W.2-Yameen testified that the rash and negligent driving of the UPSRTC bus driver caused the accident in which the deceased died. P.W.2-Yameen was travelling in the offending bus with a valid passenger ticket on the fateful journey. He produced the bus ticket and proved the same. P.W.2-Yameen could not be shaken under cross-examination. The authenticity of the bus ticket was never challenged.

20. The learned tribunal which had the benefit of observing the demeanour of the P.W.2-Yameen found to be a credible witness and believed his testimony. From the evidence in the record, this Court has no reason to take a different view on this point.

21. It would be apposite to consider the argument on behalf of the appellant-UPSRTC that the eye witness P.W.2-Yameen was unworthy of reliance as he gave a belated affidavit to the police authorities. The argument has no legs to stand on.

22. The police investigations are made into the criminal offence under the provisions of the Cr.P.C. read with the IPC. The compensation action which is the subject matter in this appeal is taken out under the Motor Vehicles Act, 1988 for an entirely different purpose. Separate standards of evidence are applicable to the respective proceedings.

23. I see merit in the submission of Shri Nigamendra Shukla, learned for the respondents-claimants/cross objectors that the delay in recording the statement of the eye witness P.W.2-Yameen was on account of inefficiency of the police investigators for which the claimants can neither be faulted nor made liable.

24. The evidence in the record establishes that the UPSRTC bus driver drove negligently and rashly, and was entirely responsible for the accident. The over speeding bus left the deceased with no time or opportunity to prevent the accident or save himself. The deceased who was riding a bicycle prudently and cannot be faulted in any manner for the mishap. This is not case of contributory negligence. On this foot the UPSRTC is held to be fully liable to pay compensation to the claimants.

25. Learned tribunal found for the claimants and against the UPSRTC on the issue of contributory negligence and accordingly fixed the sole liability on the latter. There is no infirmity in the manner of appraisal of pleadings and evidence by the learned tribunal on this issue.

VI. (C)(i) Income of the deceased:

26. The learned tribunal upon consideration of evidence before it found that the income of the deceased from various sources is Rs.8,500/- per month.

27. The claimants had introduced P.W.1-Meghkaur (widow of the deceased), and land records to establish the income of the deceased before the learned tribunal. The wife of the deceased P.W.1-Meghkaur testified that the deceased worked in a paper mill, and was also engaged in agricultural activities. The land records attesting the agricultural holdings in the name of the deceased were proved by the claimants.

The learned tribunal found that the deceased earned a monthly salary of Rs.5,500/- per month as a worker in the paper mill and fixed the agricultural income of the deceased at Rs.3,000/- per month.

28. Learned counsel for the respondents-claimants contends that the income of Rs.3,000/- per month towards agricultural fixed by the learned tribunal was perverse.

29. Learned counsel for both the parties have perused the original records in court and have affirmed that the land falling to the share of the deceased in the joint agricultural holding was 0.7 hectares.

30. There is merit in the contention of the learned counsel for the claimant-respondent/cross objector that the learned tribunal neglected to consider the fertility of the land and the extent of the deceased land holdings while fixing the agricultural income. It is undisputed that the agricultural holdings are situated in a fertile tract at District-Ghaziabad. Accordingly, the agricultural income is assessed at Rs.4,000/- per month. The finding of the learned trial court in this regard is reversed.

31. In the wake of preceding discussion, the total monthly income of the deceased is fixed at Rs.9,500/- per month.

IV.(C) (ii) Calculation of Conventional Heads:

32. The amount determined under conventional heads in the impugned award is at variance with National Insurance Company Ltd. v. Pranay Sethi and others7. The conventional heads were fixed in Pranay Sethi (supra) by holding as under:

"54. ......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/- funeral expenses should be Rs. 15,000/-, Rs. 40,000/- And Rs. 15,000/- respectively."

33. The figure under conventional heads determined in Pranay Sethi (supra) shall be applicable to the facts of this case. The award is modified accordingly.

IV.(C)(iii) Future Prospects:

34. The future prospects are liable to be calculated in accordance with the Uttar Pradesh Motor Vehicles Rules, 19988. Rule 220A-3(i) of the Rules is relevant and is reproduced hereunder:

"(3) The future prospects of a deceased, shall be added in the actual salary or minimum wages of the deceased as under--

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

35. The UP Rules, 1998 came up for consideration before the Supreme Court in New India Assurance Co. Ltd. vs. Urmila Shukla and others9. In Urmila Shukla (supra) upon consideration of various judgements including Pranay Sethi (supra) held:

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

11. If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay Sethi cannot be taken to have limited the operation of such statutory provision specially when the validity of the Rules was not put under any challenge. The prescription of 15% in cases where the deceased was in the age bracket of 50-60 years as stated in Pranay Sethi cannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid." (emphasis supplied)

36. The Rules of the Uttar Pradesh Motor Vehicles Rules, 1998 were not under consideration before the Supreme Court in Pranay Sethi (supra) or Sarla Verma (Smt.) and others v. Delhi Transport Company and another10. Future prospects in Pranay Sethi (supra) were determined without noticing the U.P. Rules,1998. This fact was adverted to in Urmila Shukla (supra):

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

37. The U.P. Rules,1998 are statutory in nature and their operation is not stymied by Pranay Sethi (supra). The U. P. Rules, 1998 have the force of law and shall apply with full force in appropriate cases. The U.P. Rules, 1998 are more beneficial for the claimants than the provisions made in Pranay Sethi (supra) for them. The holdings in Pranay Sethi (supra) can not dilute the advantages conferred by U.P. Rules, 1998 upon the eligible beneficiaries.

38. This Court finds that the claimants/respondents are entitled to 20% enhancement in wages towards future prospects, consistent with the UP Rules, 1998. The necessary changes in the award shall be accordingly made.

39. In this wake, this Court finds for the appellant on the issue of grant of future prospects.

IV(C)(iv) Multiplier:

40. The age of the deceased was 55 years at the time of death. Multiplier of 11 has been correctly applied by the learned Tribunal and is in line with Pranay Sethi (supra) and Sarla Verma (supra).

IV.(C) (v) Interest

41. Interest of 7.5% and the manner of payment does not call for interference. However, the claimants-respondents shall not be entitled to interest on the enhanced income determined in this judgement.

VII. Determination of Compensation to which claimants-respondents are entitled:

42. In the wake of preceding discussion, the amount of compensation awarded to the claimants is tabulated below:

i. Date of Accident				-29.12.2010 at 8.00 P.M.
 
ii. Date of death				-29.12.2010
 
iii. Name of the deceased		-Bhikham Singh
 
iv. Age of the deceased 			-55 years
 
v. Occupation of the deceased 		-Private Job/Agriculture 
 
vi. Income of the deceased		- Rs.8,500/-
 
vii. Name, Age and Relationship of claimants with the deceased
 
Sr. No.
 
Name
 
Age 
 
Relation
 
1
 
Smt. Meghkaur
 
50
 
Wife
 
2
 
Neeraj Kumar
 
29
 
Son 
 

 
vii. Computation of Compensation
 
Sr.
 
No.
 
Heads
 
Amount (in Rupees)
 
1
 
Monthly Income (A)
 

 

 
5,500/- p.m from service and 4,000/- p.m. from agriculture 
 
=9,500/-
 
2
 
Annual Income (B) 
 
(A x 12 = B)
 
9,500 x 12 
 
= 1,14,000/-
 
3
 
Future Prospects  (C)
 
20% of 1,14,000 
 
= 22,800/-
 
4
 
Annual Income + Future Prospects (B + C = D)
 
1,14000 + 22,800/-
 
= 1,51000/-
 
5
 
Total annual income  (D)
 
1,36,800/-
 
6
 
Deduction 1/3rd  (E)
 
45,600/-
 
7
 
Total income after 1/3rd deduction 
 
(D-E= F)
 
1/3 of 1,36,800/-
 
=91,200/-
 
8
 
Multiplier (G)
 
(FxG = H)
 
91,200 x 11
 
= 10,03,200/-
 
9
 
Compensation (H)
 
10,03,200/-
 
10
 
Conventional Heads (I): 
 
(H + I = J)
 
(a) Loss of consortium
 
(b) Loss of Estate
 
(c) Funeral Expenses
 
70,000/- 
 

 
11
 
Total Compensation  (H+I =J)
 
1,003,200/- + 70,000/- 
 
=10,73,200/-
 
12
 
Interest 
 
7.50%
 
VII. Conclusion and Directions:

43. The amount of compensation to which the claimants have thus been found entitled shall be deposited by the corporation within three months before the learned tribunal. Thereafter the learned tribunal shall release the amount to the claimants without delay. The amount already disbursed to the claimants (if any) shall be duly adjusted.

44. The amount of Rs.25,000/- deposited by the appellant while instituting the appeal shall be forthwith remitted to the learned tribunal. The amount shall be paid to the claimants as part of the awarded compensation amount.

45. The first appeal from order and the cross-objections both are decided as above.

Order Date :- 15.11.2022 Ashish Tripathi

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