# Abhishek Jain v. Chhedi Lal & Ors

- **Citation:** (2019) 2 ILRA 1422
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-23
- **Case number:** FAFO No. 465 of 2012
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-jain-v-chhedi-lal-ors-44594
- **Pages:** 18

## Headnote

A. Motor Vehicles Act, 1966 - Section
166, Section 173 - Enhancement of
compensation - Claimant/son though
legal heir of the deceased - not entitled
for getting compensation as he was not
"dependent" upon the income of the
deceased.
B. Motor Vehicles Act, 1966 - Section
166, Section 173 - Legal heir of the
deceased who is not "dependent" upon
the income of the deceased - entitled to
general damages, as provided in the
Second Schedule of the Act of 1988.
Held:-Only dependent(s) are entitled to
compensation
or
for
enhancement
of
compensation - Appeal filed by the claimant
for enhancement is liable to be rejected as the
claimant were not dependent upon the
deceased - Appellant/claimant and his sister is
entitled to get General Damages, as provided
in the Second Schedule of the Act of 1988 -
Appellant/claimant is entitled to get amount
towards conventional heads, such as funeral
expenses, loss of consortium, loss of estates,
medical expenses - Appellant is entitled for
compensation towards Loss of Estate, towards
Loss of Consortium towards Funeral Expenses
and would be entitled to the interest @ 12%
per annum from the date of filing of the Claim
Petition. (Para 29, 30 & 32)
Appeal Partly allowed (E-5)
List of cases cited: -
1.U. P. St. Road Transport Corporation & ors.
Vs Trilok Chandra & ors. (1996) 4 SCC 362
2.Ravinder Kumar Sharma Vs St. of Assam 7
ors. (1999) 7 SCC 435.
3.Banarsi & ors. Vs Ram Pal, JT (2003) 5 SC 224
4.Khenyei Vs New India Assurance Com. Ltd.
& ors. (2015) 9 SCC 273
5.Machindranath Kernath Kasar Vs D. S.
Mylarappa & ors. 2008 AIR SCW 3546
6.U.P. St. Road Transport Corporation Vs Krishna
Gopal Agarwal & anr. 2019 (37) LCD 1322
7.Manjuri Bera Vs Oriental Insurance Company
Ltd. & ors. AIR 2007 SC 1474
8.Sarla Verma & ors. Vs Delhi Transport
Corporation & anr. (2009) 2 T.A.C. 677 (SC)
2 All. Abhishek Jain Vs Chhedi Lal & Ors.
1423
9.National Insurance Company Ltd. Vs Pranay
Sethi & ors. (2017) 16 SCC 680

## Text

_Characters 0–39,997 of 59,444. This is a partial read: ask again with offset=39997 for what follows._

1422 INDIAN LAW REPORTS ALLAHABAD SERIES
the recent judgment of the Hon'ble Apex
Court in the case of Pyarelal (supra) this
Court is of the view that in the instant
case the suit would lie before the Revenue
Court.

40. For the forgoing reasons, the
impugned orders dated 15.03.2001 and
05.03.2002 are not liable to be interfered
with.

41. Accordingly, this Court finds
that the writ petition lacks merit.

42. Hence, the writ petition is
dismissed with no order as to costs.
----------

(2019)10ILR A 1422

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2019

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

FAFO No. 465 of 2012

Abhishek Jain ...Appellant
Versus
Chhedi Lal & Ors. ...Respondents

Counsel for the Appellant:
Sri Nilesh Anand, Sri Virendra Mishra

Counsel for the Respondents:
Sri Akhter Abbas

A. Motor Vehicles Act, 1966 - Section
166, Section 173 - Enhancement of
compensation - Claimant/son though
legal heir of the deceased - not entitled
for getting compensation as he was not
"dependent" upon the income of the
deceased.
B. Motor Vehicles Act, 1966 - Section
166, Section 173 - Legal heir of the
deceased who is not "dependent" upon
the income of the deceased - entitled to
general damages, as provided in the
Second Schedule of the Act of 1988.
Held:-Only dependent(s) are entitled to
compensation
or
for
enhancement
of
compensation - Appeal filed by the claimant
for enhancement is liable to be rejected as the
claimant were not dependent upon the
deceased - Appellant/claimant and his sister is
entitled to get General Damages, as provided
in the Second Schedule of the Act of 1988 -
Appellant/claimant is entitled to get amount
towards conventional heads, such as funeral
expenses, loss of consortium, loss of estates,
medical expenses - Appellant is entitled for
compensation towards Loss of Estate, towards
Loss of Consortium towards Funeral Expenses
and would be entitled to the interest @ 12%
per annum from the date of filing of the Claim
Petition. (Para 29, 30 & 32)
Appeal Partly allowed (E-5)
List of cases cited: -
1.U. P. St. Road Transport Corporation & ors.
Vs Trilok Chandra & ors. (1996) 4 SCC 362
2.Ravinder Kumar Sharma Vs St. of Assam 7
ors. (1999) 7 SCC 435.
3.Banarsi & ors. Vs Ram Pal, JT (2003) 5 SC 224
4.Khenyei Vs New India Assurance Com. Ltd.
& ors. (2015) 9 SCC 273
5.Machindranath Kernath Kasar Vs D. S.
Mylarappa & ors. 2008 AIR SCW 3546
6.U.P. St. Road Transport Corporation Vs Krishna
Gopal Agarwal & anr. 2019 (37) LCD 1322
7.Manjuri Bera Vs Oriental Insurance Company
Ltd. & ors. AIR 2007 SC 1474
8.Sarla Verma & ors. Vs Delhi Transport
Corporation & anr. (2009) 2 T.A.C. 677 (SC)
2 All. Abhishek Jain Vs Chhedi Lal & Ors.
1423
9.National Insurance Company Ltd. Vs Pranay
Sethi & ors. (2017) 16 SCC 680
10. Magma General Insurance Co. Ltd. Vs
Nanu Ram & ors. 2018 SCC Online 1546 =
(2018) 11 SCALE 247

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Shri Virendra Mishra,
learned counsel for the appellant and Shri
Akhter Abbas, learned counsel for the
respondent.

2. Facts in brief of the present case
are that when father of the claimant, late
Achit Kumar Jain, aged about 52 years,
s/o late Pratap Chand Jain and mother of
the complainant, Smt. Vidha Jain, w/o
late Achit Kumar Jain, r/o Jail Road,
Aara,
District-Bhojpur,
Bihar
were
coming from Lucknow by Indica Car
bearing No.B.R. 3 B-1011, which was
driven by a driver/Lallan Rajak, they met
with an accident which took place at
about 9:15 a.m. on 22.07.2003 at VillageHauj, within the jurisdiction of P.S.-
Jafrabad, District-Jaunpur (U.P.) due to
rash and negligent driving of driver of
Roadways
Bus
having
Registration
No.U.P. 65 R-2789, as a result of which,
the driver of Indica Car/Lallan Rajak and
Achit Kumar Jain sustained grievous
injuries and died on the spot whereas Smt.
Vidha Jain, while taking her to hospital,
also died on the way. In this regard, F.I.R.
was lodged and was registered as Case
Crime No.432 of 2003 under Sections279, 304A, 227, 338 I.P.C. at P.S.-
Jafarabad, District-Jaunpur.

3. The deceased/late Anchit Kumar
Jain and Vidha Jain were businessman
and their monthly income was of
Rs.15,000/- and 10,000/- respectively
from the different sources. The claimant
is legal heir of the deceased and is entitled
for compensation.

4. In view of the above said facts, a
Claim Petition No.02 of 2004 (Abhishek
Jain vs. Chedilal) under Section 166 of
Motor Vehicles Act, 1966 was filed
before
the
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.1, Lucknow.

5. U.P. State Road Transport
Corporation/opposite party no.2 in the
claim petition, had filed written statement
in which plea was taken that the accident
did not take place due to rash and
negligent driving of the driver of the
Roadways Bus, rather the same took place
due to rash and negligent driving of driver
of Indica Car.

6. The Tribunal, in order to decide
the controversy involved in the claim
petition, framed the following issues :-

"क्ा जदनािंक २२-०७-२००३ को मय
करीब ९:१५ बिे ुबह थथान ग्राम हौि, मुख्य मागच
थाना - िफराबाद, जिला-िौनपुर पर ब िंख्या -यू.
पी. ६५ आर - २७८९ रोडवेि ब के चालक द्वारा ब
को तेिी व लापरवाही े चलाते हुए अजचत कुमार
िैन व श्रीमती जवधा िैन की इल्दण्डका कार में िोरदार
टक्कर मार जदया जि के पररणाम स्वरुप इल्दण्डका
कार में बैठे अजचत कुमार िैन व श्रीमती जवधा िैन
की मृत्यु हो गयी ? यजद हािं तो प्रभाव ?

क्ा याजचका इल्दण्डका कार व अन्य
टरक िं.-डी. एल. बी. ओ. माजलक तथा बीमा
किंपनी को पक्षकार न बनाये िाने के कारण
दोर्पूणच है, यजद हााँ तो प्रभाव ?

क्ा उपरोक्त दुघचटना इल्दण्डका कार
चालक की योगदायी उपेक्षा के कारण हुई,
यजद हााँ तो प्रभाव ?
1424 INDIAN LAW REPORTS ALLAHABAD SERIES

क्ा जवपक्षी िंख्या -३ श्रीमती ी.
पी. िैन मृतकगण की पुत्री होने के कारण
प्रजतकर की धनराजश पाने की अजधकारी है,
यजद हााँ तो प्रभाव ?

क्ा याची प्रजतकर की धनराजश पाने
का अजधकारी है, यजद हााँ तो जकतनी एविं जक
जवपक्षी े ?"

7. On the basis of the evidence and
material on record, the Tribunal by means
of
the
judgment
dated
09.02.2012,
allowed the claim petition. The operative
portion reads as under :-

"याची की याजचका जवपक्षीगण के
जवरुद्ध २,७३,०००/- रूपये (दो लाख जतहत्तर
हिार रूपये मात्र) प्रजतकर हेतु पृथक - पृथक
एविं िंयुक्त रूप े स्वीकार की िाती है | याची
एविं जवपक्षी िंख्या -३ इ धन राजश पर ६
प्रजतशत ाधारण वाजर्चक ब्याि याजचका
प्रस्तुत करने के जदनािंक े अदायगी के जदनािंक
तक प्राप्त करेंगे | जवपक्षीगण द्वारा उक्त
प्रजतकर की धनराजश मय ब्याि आि े दो
माह के अिंदर अदा की िाय |

प्राप्त धनराजश में े याची अजभर्ेक
कुमार िैन को १,३६,५००/- रूपये तथा जवपक्षी
 िंख्या-३ श्रीमती ी. पी. िैन को १,३६,५००/-
रूपये प्राप्त होगा जि मे े याची अजभर्ेक
कुमार िैन व जवपक्षी िंख्या-३ श्रीमती ी. पी.
िैन प्रत्येक द्वारा ८२,०००/- रूपये जक ी
राष्टीयकृत बैंक के पााँच वर्ीय ावजध िमा
योिना में िमा जकया िायेगा तथा शेर्
धनराजश का भुगतान उन्हें नकद चेक द्वारा
जकया िायेगा |

जवपक्षीगण
द्वारा
प्रजतकर
की
धनराजश मय ब्याि, अध्यक्ष, मोटर दुघचटना
दाबा अजधकरण/जिला िि, लखनऊ के खाते
में रेखािंजकत चेक द्वारा िमा की िाय |

8. For enhancement of compensation
awarded by the Tribunal, Shri Abhishek
Jain/appellant has filed the present appeal
under Section 173 of Motor Vehicles Act,
1988,
against
the
judgment
dated
09.02.2012
and
the
award
dated
25.02.2012 passed by Motor Accident
Claims
Tribunal,
Lucknow/Additional
District Judge, Court No.1, Lucknow in
Claim Petition No.02 of 2004 before this
Court.

9. Shri Akhter Abbas, learned
counsel for the opposite party no.2 has
raised a preliminary objection that the
appellant/claimant, Shri Abhishek Jain,
who has filed the present appeal, comes
within the ambit of definition of legal heir
of the deceased but he is not entitled for
getting compensation as claimed by him
because he was not "dependent" upon the
income of the deceased and also Smt.
Ceipi Jain, daughter of the deceased, who
was also impleaded as opposite party no.3
in the claim petition, was not dependent
upon the income of the deceased as she is
married daughter. So the Tribunal had
wrongly awarded the compensation to
Shri Abhishek Jain as well as to the
opposite party no.3/Smt. Ceipi Jain.

10. Accordingly, it is submitted by
him that the appeal for enhancement of
compensation is neither entertainable nor
maintainable, as such, the same is liable
to be dismissed.

11. In support of his argument, he
has placed reliance on the following
judgments :-
2 All. Abhishek Jain Vs Chhedi Lal & Ors.
1425

(a) U. P. State Road Transport
Corporation and others vs.Trilok Chandra and
others, (1996) 4 SCC 362 ;

(b) Ravinder Kumar Sharma vs.
State of Assam and others, (1999) 7 SCC 435.

12. Shri Virendra Mishra, learned
counsel for the appellant submitted that
the preliminary objection raised by Shri
Akhter Abbas, learned counsel for the
opposite party no.2 has got no force
because neither any plea related to
dependency was taken before the Tribunal
by the U.P.S.R.T.C. nor in this regard any
issue was framed. So, the plea regarding
dependency taken by Shri Akhter Abbas
at the appellate stage in the arguments
cannot be entertained coupled with the
fact that U.P.S.R.T.C. neither challenged
the judgment by filing an appeal nor filed
any cross objection in the present appeal.

13. In support of his argument, he
has placed reliance on the judgment given
by the Hon'ble Apex Court in the case of
Banarsi & Ors. vs. Ram Pal, JT 2003 (5)
SC 224.

14. Shri Virendra Mishra, learned
counsel for the appellant also submitted
that U.P.S.R.T.C. had already complied
with the award passed by the Tribunal, so
the preliminary objection taken by learned
counsel for the opposite party no.2 is
liable to be rejected.

15. Further, Shri Virendra Mishra,
learned counsel for the appellant has
pressed the present appeal for the purpose
of enhancement of compensation on the
following points :-

(a)
There
is
a
composite
negligence on the part of the drivers of
two vehicles and the Tribunal had
awarded
compensation
to
the
appellant/claimant after making 50%
deduction. The said action on the part of
the Tribunal is totally contrary to the
material on record as well as settled law
on the issue of awarding compensation in
the cases of composite negligence. Late
Lallan Razak, who was driving Indica Car
having Registration No. B.R.-38-1011
met with an accident with the Bus of
U.P.S.R.T.C. having Registration No.U.P.
65-R-2783, of which Sri Chhedi Lal was
driver and the deceased were passengers
of Indica Car and the Tribunal has held
that on account of rash and negligent
driving of both the drivers, the accident
took place and thus in these facts : the
deduction of 50% by the Tribunal is
contrary to law on the issue.

In support of his argument, he
has placed reliance on the following
judgments :-

"(i) Khenyei vs. New India
Assurance Company Limited and others,
(2015) 9 SCC 273 ;

(ii) Machindranath Kernath
Kasar vs. D. S. Mylarappa & Ors., 2008
AIR SCW 3546 ;

(iii) U.P. State Road Transport
Corporation vs. Krishna Gopal Agarwal
and another, 2019 (37) LCD 1322.

(b) The Tribunal while passing
the judgment and award had not given
any amount towards future prospect.

(c) The Tribunal has erred in
awarding the correct amount under
conventional heads, the amount awarded
is not as per law.

16. Accordingly, it is submitted by
learned counsel for the appellant that the
present appeal may be allowed and the
compensation awarded by the Tribunal be
enhanced
and
given
to
the
appellant/claimant.
1426 INDIAN LAW REPORTS ALLAHABAD SERIES

17. We have heard learned counsel
for the parties and gone through the
records.

18.
In order
to decide
the
controversy, we feel appropriate to
consider the following certain paragraphs
of the claim petition filed by Sri Abhishek
Jain under Section 166 of Motor Vehicles
Act, 1988 :

7. Name and age
of each of the
dependents of the
deceased
indicating
relationship
with
him,
and
also
monthly
average
income
of
the
deceased
and
source
of
such
income.
As both the aforesaid deceased
Anchit Kumar Jain and Smt.
Vidya Jain were husband and wife
and as such the following persons
are the only dependents and legal
representatives of the deceased :
1. Abhishek Kumar Jain, aged
about 24 years of the deceased
persons.
2. Smt. Ceipi Jain, aged about 27
years daughter of the deceased
persons.
The deceased no.1/Achit Kumar
Jain was a businessman and was
engaged in various business i.e.
the business of petrol pump,
lubricant, investments, land &
shares etc. and was earning a
monthly income of approximately
Rs.15000/- per month.
The deceased no.2/Smt. Vidhya
Jain was engaged in business of
investments, rental income &
income by interest and was
earning
approximately
Rs.10,000/- per month.
8.
Does
the
deceased
in
respect of whom
compensation
is
claimed
pay
income tax ? If so
state the amount
of income tax (to
be supported by
documentary
evidence)
Yes, both were income tax
assessee income tax paid by Achit
Kumar Jain deceased no.1 in the
year 2002-2003 was Rs.7832/-.
Income tax paid by Vidya Jain,
deceased no.2 in the year 2002-03
was Rs.10136/-.
23.
Any
other
information
that
may be necessary
or helpful in the
disposal
of
the
claim.
(a)
(i)
That
the
deceased
no.1/Anchit Kumar Jain was a
businessman and was earning
approximately
Rs.15000/-
per
month and was taking care of his
accidental
death,
the
deceased/Achit
Kumar,
aged
about 52 years of age and he was
completely hail and hearty and
would have survived up to the age
of 75 years if he would have not
died in the accident. As he used to
earn Rs.15,000/- per month, he
would have earned in 12 month
i.e. in one year Rs.15000/- x 12 =
1,80,000/- and thus in remaining
23 years, he would have earned
Rs.1,80,000 x 23 = 41,40,000/-.
(ii)
That
the
deceased
no.2/Vidhya Jain was doing her
own business and was earning
about Rs.10,000/- per month and
was looking after her family. At
the time of her accidental death,
Vidhya Jain was about 52 years of
age and she was hale and hearty
lady and she would have survived
upto the age of 75 years, if she
would have not died in the
aforesaid accident and as such the
deceased Vidhya Jain would have
earned in one year Rs.10,000/- x
12 = 1,20,000/- and thus in
remaining 23 years, she would
have earned Rs.1,20,000 x 23=
27,60,000/-.
(iii)
That
besides
this,
the
deceased no.1/Anchit Kumar Jain
was a man of high social status
and a man of repute holding the
following prestigious posts :-
1. President- Bihar Petroleum
Dealers Association, Bihar.
2. Founder Member & Treasurer -
Bhojpur Chamber of Commerce
& Industry, Arrah.
3. Joint Secretary - All India
Digamber Jain Parishad, Bihar
State Branch.
4. Trustee - Sri Digamber Jain
Panchayati Mandir, Arrah.
5. Trustee - Sri 1008 Bhagwan
Shreyansh Nath Trust, Arrah.
6. Pattern & Executive Member -
Sri Arrah Goshala, Arrah.
7. Life & Executive Member -
Indian
Red
Cross
Society,
Bhojpur Distt. Unit, Arrah.
8. Executive
Member-
Bihar
Chamber of Commerce, Patna.
9. Representative Member- Arrah
Railway Station, Advisory Samiti,
Arrah.
10.
Representative
Member-
Internal Trade Samiti, FICCI,
New Delhi.
(b) That the Roadways Bus No.-
U.P.-65 R-2789 of Kashi Depot
owned by Uttar Pradesh State
2 All. Abhishek Jain Vs Chhedi Lal & Ors.
1427
Road Transport Corporation Tehri
Kothi, P.S.-Wazirganj, Lucknow
was rashly and negligently in high
speed in utter violation of the
traffic rules was being driven by
opp. Party no.1 its driver, as a
result of which, the aforesaid
roadways bus collided with the
Indica Car No.BR-3 B-1011 on
22.07.03 at about 9:15 A.M. on
the main road from Lucknow to
Varanasi near Village- Hauj, P.S.-
Jafrabad, District-Jaunpur, as a
result of which, deceased/Achit
Kumar Jain died on the spot and
deceased/Vidya
Jain
died
immediately after reaching the
hospital and in this accident, the
driver of the Indica Car Lallan
Razak also died on the spot. The
F.I.R. of this accident was lodged
on 22.07.03 in P.S.-Jafrabad,
District-Jaunpur
and
was
registered
at
Case
Crime
No.432/3
under
Sections279/304A/427/338
I.P.C.
The
postmortem
of
the
aforesaid
persons was conducted in the
Government Hospital, Jaunpur.
(c) That both the aforesaid
deceased persons have left the
petitioner and opposite party no.3
as their legal representatives, legal
heirs, successors and dependents
that both the petitioner and
opposite party no.3, the sister of
the
petitioner
were
being
financially supported looked after
and patronized by the aforesaid
deceased persons, in spite of this,
the petitioner was being supported
and guided by the deceased
persons in multifarious ways and
patterns, after the death of the
parents of the petitioner, the
petitioner is suffering and facing a
lot of hardy hoods and has been
forced to take the patronage of his
near relative at Lucknow at his
present address.
(d) That as the opp. Party no.3 is
also the legal representative, legal
heir, successor & dependent of
both the aforesaid deceased and
could not join the petition as a
petitioner and as such opposite
party no.3 is being arrayed as
proforma opp. Party no.3 in this
claim petition.
(e) That as such in the present
circumstances and hardy hoods,
the petitioner is entitled for a
compensation of Rs.1,34,10,000/-
to
reprimand
the
irreparable
injuries and mental and financial
injuries.
(f) That if the driver of the
aforesaid roadways bus the opp.
Party no.1 would have been
cautious and careful in driving the
aforesaid bus or if the driver of
bus would have been instructed
by opp. Party no.2 the owner of
the roadways bus about the
appropriate rules and regulations
of the traffic and road driving and
also about the penal consequences
of rash and negligent driving then
this hazardous accident would
have not occurred, the aforesaid
accident has occurred because of
the rash and negligent driving and
the fatal accident has gutted up
the above mentioned parents of
the petitioner and the employers
of the driver have yet not taken
any pains to enquire about the
well being of the family of the
deceased.
(g) That the aforesaid accident
took place in P.S.-Jafrabad, Distt.-
Jaunpur, U.P. and the opp. Party
no.2 the owner of the roadways
bus have got their Head Office at
Lucknow and thus this Hon'ble
Court has got each and every
jurisdiction for entertaining and
adjudicating the present Motor
Accident Claim Petition.
(h) That the description of the
injuries is as under :-
1. (a) Injuries in the income of the
deceased no.1/Achit Kumar Jain
for remaining 23 years - 15000 x
12 x 23 =Rs.41,40,000/-
(b)
Loss
of
income
of
deceased/Vidya
Jain
for
remaining 23 years - 10000 x 12 x
23 = Rs.27,60,000/-
Total loss of income of both the
deceased = Rs.69,00,000/-
2. Mental in bearable injuries -
Rs.15,00,000/-
3. Loss of happiness of life -
Rs.15,00,000/-
4. Loss of Love & affection -
Rs.5,00,000/-
5. Funeral Expenses - Rs. 10,000/-
6. Loss of future enhancement of
income of both the deceased
persons in view of their flourshing
and developing business prospects
in remaining 23 years of their life
- Rs.30,00,000/-.
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
Total = Rs.1,34,10,000/-
(I) That the petitioner has not filed
any other claim petition in context
to the aforesaid accident in any
other court nor any suit or claim
petition in relation to the aforesaid
accident is pending elsewhere in
any other or Tribunal.

19. In response to the pleadings
taken by the appellant in paras 7, 8, 23 in
the
written
statement
filed
by
U.P.S.R.T.C., opposite party no.2 pleaded
as under :

7. याजचका के प्रस्तर िंख्या १८ के
 म्बन्ध में इतना कहना है जक याची की तरफ े
पररवहन जनगम में कोई क्लेम नहीिं जकया गया है
यजद कोई क्लेम जकया िाता तो हानुभूजत पूणच ढिंग
 े जवचार करते हुये क्लेम को जनस्तारण अवश्य
जकया िाता |

8. याजचका के प्रस्तर िंख्या १९ लगायत
२१ तथ्योिं की िानकारी के आभाव में अस्वीकार है |

23. यह जक, याची के द्वारा प्रस्तर िंख्या
-६ में मृतकगणोिं की आय क्रमशः रूपये १५०००/-
एविं रूपये १०,०००/- प्रजतमाह अिंजकत की है, वह
मनगढिंत व जबना जक ी उजचत आधार के है |

20. In order to prove his claim, the
appellant, Sri Abhishek Jain, himself
appeared as witness and stated that :

"मैंने दुघचटना नही देखी है मै बी. कॉम
पा हाँ | दुघचटना के मय में 24 वर्च का था | मैंने
बी. कॉम, 2002-03 में पा जकया था | मै शादी शुदा
हाँ | इ मय मेरे दो बच्चे है | मेरी बहन उम्र मे मेरे
 े बड़ी है | बहन की शादी 1996 में हुई थी | एक
बहन के आलावा मेरे और कोई भाई बहन नहीिं है |
मेरे दादा -दादी भी िीजवत नहीिं है | मैं जबज़ने
करता हाँ | मै पेटरोल पम्प का जबज़ने करता हाँ | मैं
15,000-20,000/- रु. महीना कमाता हाँ | यह
दुघचटना 22.07.2003 को हुई थी | उ मय भी मैं
पेटरोल पम्प का कायच करता था |"

and in his cross-examination,
the appellant has stated that :

"यह ही है जक मेरे माता -जपता की
जि स्रोत े आमदनी होती थी वह ारे स्रोत
मौिूद है लेजकन उनके न होने े उनकी कमी
मह ू होती है तथा जबज़ने में कमी आयी है |"

21. In this appeal for enhancement
of compensation first we are dealing with
the objection taken by Shri Akhter Abbas,
learned counsel for the opposite party
no.2, which is to the effect that the
appellant/claimant as well as opposite
party no.3/Smt. Ceipi Jain were/are not
dependent upon the income of the
deceased, so they were/are neither entitled
for getting any compensation nor entitled
for enhancement of the compensation.

22.
In order
to decide
the
controversy raised by Shri Akhter Abbas,
learned counsel for U.P.S.R.T.C. in the
present appeal, we feel appropriate to
reproduce the relevant portion of the
judgments connected therewith :-

23. Hon'ble the Apex Court in the
case of Ravinder Kumar Sharma vs.
State of Assam and others, (1999) 7 SCC
435 has held as under :-

"14. That means that under Order
41 Rule 22 CPC, before the 1976 Amendment,
it was open to the defendant-respondent who
had not taken any cross-objection to the
partial decree passed against him, to urge, in
opposition to the appeal of the plaintiff, a
contention which if accepted by the trial court
would have resulted in the total dismissal of
the suit. This was the legal position under the
unamended Order 41 Rule 22 as accepted by
the Madras Full Bench in Venkata Rao's case
and as accepted by this Court in Chandre
Prabhuji's case.

15. The next question is as to
whether, the law as stated above has been
2 All. Abhishek Jain Vs Chhedi Lal & Ors.
1429
modified by the 1976 Amendment of
Order 41 Rule 22. It will be noticed that
the Amendment has firstly deleted the
words "on any of the grounds decided
against him in the Court below, but take
any cross-objections" in the main part of
Order 41 Rule 22 CPC and added the
words "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" in the main part.

16. The main part of Order 41
Rule
22(1)
CPC,
(after
the
1976
Amendment) reads as follows:

Order 41 Rule 22(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.

17. The 1976 Amendment has
also added an Explanation below Order
41 Rule 22, as follows:

Explanation:
A
respondent
aggrieved by a finding of the court in the
judgment on which the decree appealed
against is based may, under this rule, file
cross objection in respect of the decree in
so far as it is based on that finding,
notwithstanding that by reason of the
decision of the Court on any other finding
which is sufficient for the decision of the
suit, the decree is, wholly or in part, in
favour of that respondent.

18. In connection with Order 41
Rule 22, CPC after the 1976 Amendment,
we may first refer to the judgment of the
Calcutta High Court in Nishambhu Jana
v. Sova Guha (1982) 89 CWN 685. In that
case, Mookerjee, J. referred to the 54th
report of the Law Commission (at p.295)
(para 41.70) to the effect that Order 41
Rule 22 gave two distinct rights to the
respondent in the appeal. The first was
the right to uphold the decree of the court
of first instance on any of the grounds
which that court decided against him. In
that case the finding can be questioned by
the respondent without filing crossobjections. The Law Commission had
accepted the correctness of the Full
Bench of the Madras High Court in
Venkata Rao's case. The Commission had
also accepted the view of the Calcutta
High Court in Nrisingha Prosad Rakshit
v. The Commissioners of Bhadreswar
Municipality that a cross-objection was
wholly unnecessary in case the adverse
finding
was
to
be
attacked.
The
Commission observed that the words
"support the decree..." appeared to be
strange and "what is meant is that he may
support it by asserting that the ground
decided against him should have been
decided in his favour. It is desirable to
make this clear". That is why the main
part of Order 41 Rule 22 was amended to
reflect the principle in Venkata Rao's case
as accepted in Chandre Prabhuji's case.

19. So far as the Explanation
was concerned, the Law Commission
stated (page 298) that it was necessary to
"empower" the respondent to file crossobjection against the adverse finding.
That would mean that a right to file crossobjections was given but it was not
obligatory to file cross-objections. That
was why the word 'may' was used. That
meant that the provision for filing cross-
1430 INDIAN LAW REPORTS ALLAHABAD SERIES
objections against a finding was only an
enabling provision.

20. These recommendations of
the Law Commission are reflected in the
Statement of Objections and Reasons for
the Amendment. They read as follows:

"Rule 22 (i.e., as it stood before
1976) gives two distinct rights to the
respondent in appeal. The first is the right
of upholding the decree of the Court of
first instance on any of the grounds on
which that court decided against him; and
the second right is that of taking any
cross-objection to the decree which the
respondent might have taken by way of
appeal. In the first case, the respondent
supports the decree and in the second
case, he attacks the decree. The language
of the rule, however, requires some
modifications because a person cannot
support a decree on a ground decided
against him. What is meant is that he may
support the decree by asserting that the
matters decided against him should have
been decided in his favour. The rule is
being amended to make it clear. An
Explanation is also being added to Rule
22 empowering the respondent to file
cross- objection in respect to a finding
adverse to him notwithstanding that the
ultimate decision is wholly or partly in his
favour."

Mookerjee,
J.
observed
in
Nishambhu Jana's case (see p.689) that
"the "amended Rule 22 of Order 41 of the
Code has not brought any substantial
change in the settled principles of law"
(i.e., as accepted in Venkata Rao 's case)
and clarified (p.691) that "it would be
incorrect to hold that the Explanation
now inserted by Act 104 of 1976 has made
it obligatory to file cross-objections even
when the respondent supports the decree
by stating that the findings against him in
the court below in respect of any issue
ought to have been in his favour.

21.
A
similar
view
was
expressed by U.N. Bachawat, J. in Tej
Kumar v. Purshottam, AIR 1981 MP 55
that after the 1976 Amendment, it was not
obligatory to file cross- objection against
an adverse finding. The Explanation
merely empowered the respondent to file
cross-objections.

22. In our view, the opinion
expressed by Mookerjee, J. of the
Calcutta High Court on behalf of the
Division Bench in Nishambhu Jena's case
and
the
view
expressed
by
U.N.
Bachawat, J. in Tej Kumar's case in the
Madhya Pradesh High Court reflect the
correct legal position after the 1976
Amendment. We hold that the respondentdefendant in an appeal can, without filing
cross-objections attack an adverse finding
upon which a decree in part has been
passed against the respondent, for the
purpose sustaining the decree to the
extent the lower court had dismissed the
suit against the defendants-respondents.
The filing of cross-objection, after the
1976 Amendment is purely optional and
not mandatory. In other words, the law as
stated in Venkata Rao's case by the
Madras
Full
Bench
and
Chandre
Prabhuji's case by this Court is merely
clarified by the 1976 Amendment and
there is no change in the law after the
Amendment.

23. The respondents before us
are, therefore, entitled to contend that the
finding of the High Court in regard to
absence of reasonable and probable
cause or malice - (upon which the decree
for pecuniary damages in B and C
schedules was based) can be attacked by
the respondents for the purpose of
sustaining the decree of the High Court
refusing to pass a decree for non-
2 All. Abhishek Jain Vs Chhedi Lal & Ors.
1431
pecuniary damages as per the A schedule.
The filing of cross-objections against the
adverse finding was not obligatory. There
is no res judicata. Point 1 is decided
accordingly in favour of respondentsdefendants.

24. Hon'ble the Apex Court in the
case of Banarsi & Ors. vs. Ram Phal, JT
2003 (5) SC 224 has held as under :-

"17. In Rameshwar Prasad and
Ors. v. Shambehari Lal Jagannath and
Anr., [1964] 3 SCR 549, the three-Judge
Bench speaking through Raghubar Dayal,
J. observed that Rule 33 really provides
as to what the Appellate Court can find
the appellant entitled to and empowers
the Appellate Court to pass any decree
and make any order which ought to have
been passed or made in the proceedings
before it and thus could have reference
only to the nature of the decree or order
in so far as it affects the rights of the
appellant.
If
further
empowers
the
Appellate Court to pass or make such
further or other, decree or order, as the
case may require. The Court is thus given
wide discretion to pass such decrees and
orders as the interests of justice demand.
Such a power is to be exercised in
exceptional cases when its non-exercise
will lead to difficulties in the adjustment
of rights of the various parties."

18. In Harihar Prasad Singh
and Ors. v. Balmiki Prasad Singh and
Ors., [1975] 2 SCR 932, the following
statement of law made by Venkatarama
Aiyar, J. (as His Lordship then was) in the
Division Bench decision in Krishna Reddy
v. Ramireddi, AIR 1954 Mad 848 was
cited with approval which clearly brings
out the wide scope of power contained in
Rule 33 and the illustration appended
thereto, as also the limitations on such
power:

"Though Order 41, Rule 33
confers wide and unlimited jurisdiction on
Courts to pass a decree in favour of a
party who has not preferred any appeal,
there are, however, certain well-defined
principles in accordance with which that
jurisdiction
should
be
exercised.
Normally, a party who is aggrieved by a
decree should, if he seeks to escape from
its operation, appeal against it within the
time allowed after complying with the
requirements of law. Where he fails to do
so, no relief should ordinarily be given to
him under Order 41, Rule 33.

But there are well-recognised
exceptions to this rule. One is where as a
result of interference in favour of the
appellant
it
becomes
necessary
to
readjust the rights of other parties. A
second class of cases based on the same
principle is where the question is one of
settling mutual rights and obligations
between the same parties. A third class of
cases is when the relief prayed for is
single and indivisible but is claimed
against a number of defendants. In such
cases, if the suit is decree and there is an
appeal only by some of the defendants
and if the relief is granted only to the
appellants there is the possibility that
there might come into operation at the
same time and with reference to the same
subject-matter two decrees which are
inconsistent and contradictory.

This,
however,
is
not
an
exhaustive enumeration of the class of
cases in which courts could interfere
under Order 41, Rule 33. Such an
enumeration would neither be possible
nor even desirable."

19. In the words of J.C. Shah, J.
speaking for a three-Judge Bench of this
Court in Nirmala Bala Ghose and Anr. v.
1432 INDIAN LAW REPORTS ALLAHABAD SERIES
Balai Chand Ghose and Anr., [1965] 3
SCR 550, the limitation on discretion
operating as bounds of the width of power
conferred by Rule 33 can be so
formulated --

"The
rule
is
undoubtedly
expressed in terms which are wide, but it
has to be applied with discretion, and to
cases where interference in favour of the
appellant necessitates interference also
with a decree which has by acceptance or
acquiescence become final so as to enable
the Court to adjust the rights of the
parties. Where in an appeal the Court
reaches
a
conclusion
which
is
inconsistent with the opinion of the court
appealed from and in adjusting the right
claimed by the appellant it is necessary to
grant relief to a person who has not
appealed, the power conferred by Order
41 Rule 33 may properly be invoked. The
rule
however
does
not
confer
an
unrestricted right to re-open decrees
which have become final merely because
the appellate Court does not agree with
the opinion of the Court appealed from."

20. A Division Bench decision
of Calcutta High Court in Jadunath Basak
v. Mritunjoy Sett and Ors., AIR 1986 Cal
416 may be cited as an illustration. The
plaintiff filed a suit for declaration that
the defendant had no right or authority to
run the workshop with machines in the
suit
premises
and
for
permanent
injunction restraining the defendant from
running the workshop. The Trial Court
granted a decree consisting of two reliefs:
(i) the declaration as prayed for, and (ii)
an injunction permanently restraining the
defendant from running the workshop
except with the terms of a valid
permission and licence under Section 436
and 437 of Calcutta Municipal Act, 1951
from the Municipal Corporation. The
defendant filed an appeal. The Division
Bench held that in an appeal filed by the
defendant, the plaintiff cannot challenge
that part of the decree which granted
conditional injunction without filing the
cross-objection. The Division Bench drew
a distinction between the respondent's
right to challenge an adverse finding
without filing any appeal or crossobjection and the respondent seeking to
challenge a part of the decree itself
without filing the cross-objection. The
Division Bench held that the latter was
not permissible. We find ourselves in
agreement with the view taken by the
High Court of Calcutta.

21. In the case before us, the
Trial Court found the defendant not
entitled
to
decree
for
specific
performance and found him entitled only
for
money
decree.
In
addition,
a
conditional decree was also passed
directing execution of sale deed if only the
defendant
defaulted
any
paying
or
depositing the money within two months.
Thus
to
the
extent
of
specific
performance, it was not a decree outright;
it was a conditional decree. Rather, the
latter part of the decree was a direction in
terrorem so as to secure compliance by
the appellant of the money part of the
decree in the scheduled time frame. In the
event of the appellant having made the
payment within a period of two months,
the respondent would not be, and would
never have been, entitled to the relief of
specific performance. The latter decree is
not inseparably connected with the former
decree. The two reliefs are surely
separable from each other and one can
exist without the other. Nothing prevented
the respondent from filing his own appeal
or taking cross-objection against that part
of the decree which refused straightaway
a decree for specific performance in his
favour
based
on
the
finding
of
2 All. Abhishek Jain Vs Chhedi Lal & Ors.
1433
comparative hardship recorded earlier in
the judgment. The dismissal of appeals
filed by the appellant was not resulting in
any inconsistent, iniquitous, contradictory
or
unworkable
decree
coming
into
existence so as to warrant exercise of
power under Rule 33 of Order 41. It was
not a case of interference with decree
having been so interfered with as to call
for
adjustment
of
equities
between
respondents inter se. By his failure to
prefer an appeal or to take crossobjection the respondent has allowed the
part of the Trial Court's decree to achieve
a finality which was adverse to him.

22. For the foregoing reasons
we are of the opinion that the first
Appellate Court ought not to have, while
dismissing the appeals filed by the
defendant-appellants before it, modified
the decree in favour of the respondent
before it in the absence of cross-appeal or
cross-objection. The interference by the
first Appellate Court has reduced the
appellants to a situation worse than in
what they would have been if they had not
appealed. The High Court ought to have
noticed this position of law and should
have interfered to correct the error of law
committed by the first Appellate Court.

23.
During
the
course
of
hearing, the learned counsel for the
appellants made a statement under
instructions, that the appellants have a
large family to support which is entirely
dependent
on
the
suit
land
for
maintaining itself and they have no other
means of livelihood. (This statement finds
support from the finding arrived at by the
Trial Court). He further stated that, in
any case, to get rid of the onerous part of
the decree, the appellants volunteer to
pay a further amount of Rs. 1,20,000/- by
way of compensation to the respondent
over and above the amount of Rs.
2,40,000/- already deposited by them in
the Court pursuant to interim orders
alongwith the bank interest accrued
thereon. That statement is taken on record
and being a very fair voluntary offer
deserves to be accepted and incorporated
in the decree.

24. The appeals are allowed. The
judgment and decree of the first Appellate
Court are set aside and instead those of the
Trial Court restored. In view of the appellants
having deposited the money due and payable
under the money part of the decree, it is held
that they are relieved from specifically
performing the agreement and executing sale
deed in pursuance thereof. The delay in
deposit, if any, deserves to be condoned in
view of the interim orders passed by the High
court and is hereby condoned. The time for
deposit, as appointed by the Trial Court, shall
be deemed to have been extended upto the
dates of actual deposits made by the
appellants. The amount of Rs. 2,40,000/- lying
deposited in the Court and invested in fixed
deposits shall, along with the interest earned,
be released to the respondents. In addition the
appellants shall, as offered by them, deposit
with the executing court for payment to the
respondent another amount of Rs. 1,20,000/-
within a period of eight weeks from today. On
that being done, the decree passed by the
Trial Court shall be deemed to have been fully
satisfied. The respondent shall deliver the
agreements dated 30.11.1988 and 15.7.1991
to the appellants endorsing upon the
agreements the amount of money received
and that the agreements stand discharged and
need not be performed. The costs shall be
borne by the parties as incurred throughout."

25. Hon'ble the Apex Court in the
case of U. P. State Road Transport
Corporation
and others
vs.
Trilok
Chandra and others, (1996) 4 SCC 362
has held as under :-
1434 INDIAN LAW REPORTS ALLAHABAD SERIES

"India is one of the countries
with
the
highest
number
of
road
accidents.