# Deepak & Anr v. U.P.S.R.T.C. & Anr

- **Citation:** (2021) 9 ILRA 728
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-11
- **Case number:** F.A.F.O. No. 42 of 2019
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-anr-v-u-p-s-r-t-c-anr-47389
- **Pages:** 4

## Headnote

schedule of the Act and no amount towards
future loss of income granted-50% of mainimum
wages have to be added under head of future
prospects-order modified.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

728 INDIAN LAW REPORTS ALLAHABAD SERIES
condoned, though not in themselves very
material, may not be irrelevant altogether.
The delay here is sought to be condoned in a
first appeal. It is well acknowledged that a
First Appeal is about a very valuable right of
the litigant, inasmuch as it is an appeal of
right, both on facts and law. This is what
Section 96 C.P.C. makes it to be. This right of
appeal is not subject to any limitation, such as
the demonstrable involvement of a substantial
question of law or it being subject to
discretion of the Court. This being the nature
of the appeal envisaged under Section 96
C.P.C., a prayer for condonation of delay
must necessarily be viewed in the context of
the right that the appellants have at stake. The
nature of the jurisdiction, therefore, would all
the more require a relatively liberal exercise
of the discretion to condone delay, once the
explanation comes within what the law
understands as "sufficient cause". Here, as
remarked elsewhere in this judgment, the
Lower Appellate Court has done a short shrift
of the matter to conclude, without assigning
any reason that the cause shown is not
sufficient.

15. This Court is of opinion that the
substantial question of law no. 2 should
also be answered in the affirmative.

16. In the circumstances, this Court is
of opinion that this appeal must succeed.
The appeal succeeds and is hereby allowed.
The impugned judgment dated 31.07.2018
passed by the learned Additional District
Judge, Court No. 15, Allahabad in
Miscellaneous Case No. 475 of 2017 is
hereby set aside and reversed. The Delay
Condonation application stands allowed.

17. The Lower Appellate Court shall
now proceed to hear the appeal, if there is
no other defect, under Order XLI Rule 11
C.P.C.

18. Costs easy.
----------
(2021)09ILR A728
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2021 &
02.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

F.A.F.O. No. 42 of 2019

Deepak & Anr. ...Appellants
Versus
U.P.S.R.T.C. & Anr. ...Respondents

Counsel for the Appellants:
Sri Pankaj Rai, Neelam Pandey

Counsel for the Respondents:

Motor accident claim-Claimant lost young son
studyng in Class VIII-Tribunal relied upon II
schedule of the Act and no amount towards
future loss of income granted-50% of mainimum
wages have to be added under head of future
prospects-order modified.

Appeal partly allowed. (E-9)

List of Cases cited:

1. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors. passed in Civil Appeal No. 4634 of
2021 decided on 06.08.2021

2. National Insurance Co. Ltd.Vs Pranay Sethi &
ors., 2017 0 Supreme (SC) 1050

3.National Insurance Co. Ltd. Vs Mannat Johal &
ors., 2019 (2) T.A.C. 705 (S.C.)

4. A.Vs Padma Vs Venugopal reported in 2012
(1) GLH (SC) 442

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
9 All Deepak & Anr. Vs. U.P.S.R.T.C. & Anr.
729
&
Hon'ble Subhash Chand, J.)

1. Heard learned counsel for the
appellants and perused the judgment and
order impugned.

2. There is nobody to oppose the
appeal though U.P.S.R.T.C. and the owner
have been sent notices and duly served. It is
also brought to our notice that U.P.S.R.T.C.
had also preferred an appeal.

3. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 08.11.2017 passed by Motor
Accident Claims Tribunal/District Judge,
Gautam Budh Nagar (hereinafter referred
to as 'Tribunal') in M.A.C.P. No.86 of
2016.

4. As far as the appeal is concerned, all
other aspects except the compensation
awarded, has attained finality. It is the appeal
filed by claimants. The issue of negligence
has been decided in favour of the claimants
and that issue is not raised in this appeal and
the issue that is required to be decided is
compensation awarded by the Tribunal,
which has not granted any amount under the
head of future loss of income despite the law
provided for the same.

5. By way of this appeal, the
claimants have lost a young son (student)
studying in class VIII. The Tribunal has
considered his notional income to be Rs.
2400/- per month. The Tribunal relied on
the IInd schedule of the Motor Vehicle Act,
1988, did not grant any amount towards
future loss of income. It is submitted by Sri
Pankaj Rai, learned counsel for the
appellants that as per Rules of Uttar
Pradesh
Motor
Vehicles
(Eleventh
Amendment)
Rules,
2011,
which
is
recently interpreted by the Apex Court in
case of New India Assurance Co. Ltd. Vs.
Urmila Shukla and others passed in Civil
Appeal No. 4634 of 2021 decided on
06.08.2021 and held that the rules are
beneficial and given effect. In our view, the
Tribunal has not granted any amount
though the rules provides, which reads as
follows:-

"220A.
Determination
of
compensation. (1) The multiplier for
determination of loss of income payable as
compensation in all the claims cases shall
be applied as per Second Schedule
provided in the Act.

(2((i) The deduction towards
personal expenses of a deceased unmarried
shall be 50% where the family of a
bachelor is large and dependent on the
income of the deceased, the deduction shall
be 1/3.

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

6. For the purpose of future prospects
of the deceased it shall be added in actual
salary and or the minimum wages of the
deceased, as under these rules came into
force before deciding the matter, therefore,
50% of the salary and or minimum wages
will have to be added, which would mean
that the order of the Tribunal requires to be
modified. It is further submitted by Sri Rai
that the multiplier of 15 granted by the
Tribunal has to be 18. It is next submitted
that the Tribunal has granted Rs. 9000/-
towards funeral purposes whereas no
amount under non-pecuniary damages for
the parents has granted. It is submitted by
Sri Rai that the bus of the U.P.S.R.T.C. was
not insured.
730 INDIAN LAW REPORTS ALLAHABAD SERIES

7. It is contended that as far as the interest
is concerned though the rules specify 7% as rate
of interest and less and as far as the amount
under non-pecuniary head is concerned, the
judgment of Sarla Verma and National
Insurance Company Limited Vs. Pranay
Sethi and Others, 2017 0 Supreme (SC) 1050
would be applicable. Dictation The deceased
was survived by his parents therefore, 1/2 is
ordered to be deducted for personal expenses.
The multiplier for the death of boy below the
age of 14 is 15 hence, we maintain the same. As
far as the compensation for loss of love and
affection, loss of future prospects and
consortium are concerned, we award Rs.
50,000/- with 10% increase for three years. The
rate of interest would be 7.5%.

8. Hence, the total compensation payable
to the appellants in view of the decision of the
Apex Court in Pranay Sethi (Supra) is
computed herein below:

i. Income Rs.6,000/-

ii. Percentage towards future
prospects : 40% namely Rs.2400/-

iii. Total income : Rs. 6,000 +
2400 = Rs. 8400/-

iv. Income after deduction of 1/2
: Rs. 4200/- (rounded up)

v. Annual income : Rs.4200 x 12
= Rs. 50,400/-

vi. Multiplier applicable : 15

vii.
Loss
of
dependency:
Rs.50400 x 15 = Rs.7,56,000/-

viii.
Amount
under
filial
consortium and other non pecuniary heads :
Rs. 85,000/-

x. Total compensation : Rs.
8,41,000/-

9. As far as issue of rate of interest is
concerned, it should be 7.5% in view of the
latest decision of the Apex Court in
National Insurance Co. Ltd. Vs. Mannat
Johal and Others, 2019 (2) T.A.C. 705
(S.C.) wherein the Apex Court has held as
under :

"13.
The
aforesaid
features
equally apply to the contentions urged on
behalf of the claimants as regards the rate
of interest. The Tribunal had awarded
interest at the rate of 12% p.a. but the same
had been too high a rate in comparison to
what is ordinarily envisaged in these
matters. The High Court, after making a
substantial enhancement in the award
amount, modified the interest component at
a reasonable rate of 7.5% p.a. and we find
no reason to allow the interest in this
matter at any rate higher than that allowed
by High Court."

10. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount within a period of 12 weeks from
today with interest at the rate of 7.5% from
the date of filing of the claim petition till
the amount is deposited. The amount
already deposited be deducted from the
amount to be deposited.

11. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma Vs. Venugopal reported in 2012
(1) GLH (SC) 442, the order of investment
9 All Akhilesh Kumar Jaiswal & Ors. Vs. Karunesh Jaiswal & Ors.
731
is not passed because applicants/claimants
are neither illiterate nor rustic villagers.

12. Record, if any be sent back to the
Tribunal.

Order on Correction Application

Correction as prayed for be made in
paragraph-2 of the judgment by substituting
the word 'not' in place of 'also' and further
in paragraph-10 of the judgment by
substituting the word 'U.P.S.R.T.C.' in
place of 'Insurance Company'.

The
application
is
allowed,
accordingly.

We are thankful to Sri Pankaj Rai,
Advocate, for pointing out typographical
error under our order dated 11.08.2021.
----------
(2021)09ILR A731
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.09.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

F.A.F.O. No. 166 of 2021

Akhilesh Kumar Jaiswal & Ors.
 ...Appellants
Versus
Karunesh Jaiswal & Ors. ...Respondents

Counsel for the Appellants:
Akhilesh Kumar, Dilip Kumar Pandey

Counsel for the Respondents:
Asit Srivastava, Jyotiresh Pandey

Impugned order set aside ad interim
temporary injunction-Order of temporary
injunction

was
passed
exparteDefendant-respondents objected stating
they have filed caveat-no opportunity of
hearing-it is right of caveator of being
heard and it is duty of Court to afford the
caveator opportunity of hearing-this right
recognized by statute-impugned order not
illegal-specific direction issued in case of
caveat has been lodged.

Appeal dismissed. (E-9)

List of Cases cited:

1.Raj Bahadur & anr. Civil Judge (J.D.)
Musafirkhana Sultanpur & 3 ors. in Writ Petition
No. 6380 (MS) of 2014 decided on 20.11.2014

2. Maharaja Dharmendra Prasad Singh & anr. Vs
Vivek Agarwal & ors. in Civil Misc. Application
No. 31058 of 2009 in First Appeal From Order
No. 303 of 2009, decided on 06.04.2009 (DB).

3. S.S.Barathokey Vs Chairman U.P.Seed and
Tarai Development Corporation Limited & anr.
1993(11) LCD 486

4. Jang Singh Vs Brij Lal, AIR 1966 SC 1631

(Delivered by Hon'ble Ravi Nath Tilhari, J. )

1. Heard Sri Dilip Kumar Pandey,
learned counsel for the appellants and Sri
Asit Srivastava, learned counsel for the
respondents.

2. ''Supplementary Reply to the
Supplementary Objection filed by the
opposite parties' filed by Sri Dilip Kumar
Pandey and ''Additional Supplementary
Affidavit/objection
by
the
respondents/defendants filed by Sri Asit
Srivastava are taken on record.

3. This First Appeal From Order
under Order 43 Rule 1 of the Code of Civil
Procedure, 1976 (C.P.C.) has been filed
against the order dated 09.08.2021 passed
by the learned Civil Judge (Senior
Division), Fast Track Court, Lucknow, in
Original Suit No. 1018 of 2021 (Akhilesh