# Netrapal Singh v. U.P.S.R.T.C. & Anr

- **Citation:** FAFO No. 860 of 1996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-30
- **Case number:** FAFO No. 860 of 1996
- **Bench:** Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/netrapal-singh-v-u-p-s-r-t-c-anr-46343
- **Pages:** 7

## Headnote

A. Civil Law-Motor Vehicle Act, 1988 -
Contributory Negligence - Comparative Liability
of heavy and light motor - Held, the liability of
the
heavy
vehicle
is
more.
(Para
12)
3-5 All. Netrapal Singh Vs. U.P.S.R.T.C. & Anr.
1443
B. Motor Vehicle Act, 1988
- IInd
Schedule - Determination of Compensation -
Multiplier - Multiplier Table is provided by Apex
Court in Smt. Sarla Verma's case - Tribunal had
committed wrong in applying the multiplier of
18 accepting the age of the claimant as 28
years - The Hon'ble Apex Court has provided
the multiplier of 17 for the age group of 26 to
30 years and as such the appropriate multiplier
in the present case would be 17. (Para 16 and
18)
Appeal disposed off (E-1)
Cases relied on :-

## Text

1442 INDIAN LAW REPORTS ALLAHABAD SERIES

43. Applying the aforesaid findings of
fact to the statutory scheme explained
hereinabove, this Court finds that the notice
for claim under Section 78B of the Indian
Railways Act, 1890, was served upon the
competent railway authority within the
statutory period of six months from the date
of the delivery of the consignment. The
notice
contained
the
demand
for
compensation as contemplated in the
provision. The notice clearly identifies the
goods with sufficient particulars to enable
the railway authorities to undertake any
necessary enquiry in that regard.

44. In this manner, the service of the
notice upon the Railway authorities was
valid and within the time period prescribed
under Section 78B of the Indian Railways
Act,1890. Further, the ingredients of a
notice as required under Section 78B of the
Indian Railways Act, 1890, are satisfied by
the notice dated 21.07.1981 sent by the
plaintiff-respondent.

45. The service of such a valid notice
with the stipulated time period is a
precondition for success of any claim for
compensation. The service of a valid notice
in the manner prescribed by law, has been
established. The claim of the plaintiffrespondent for compensation is liable to be
allowed and was rightly granted by the
learned first appellate court.

46. The substantial question of law is
answered as follows.

"The notice under Section 78B of
the Indian Railways Act, 1890, contained
the necessary ingredients in a valid notice
for compensation and was also served in a
lawful manner and within the time frame
prescribed in Section 78B of the Indian
Railways Act, 1890. The notice was fully
consistent with the requirements of Section
78B read with Section 140 of the Indian
Railways Act, 1890, and cannot be faulted
in any manner."

47. The substantial question of law
having been answered in favour of the
plaintiff-respondent
and
against
the
appellant, the judgment and decree of the
learned first appellate court is liable to be
upheld.

48. The judgment and decree dated
23.11.1990 rendered by the learned Special
Judge, Essential Commodities Act, Etah, in
Civil Appeal No. 03 of 1987 (Awadhesh
Kumar Agarwal Vs. Union of India and
another) is affirmed.

49. The second appeal is dismissed.
----------
(2020)03-05ILR A1442
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2020

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

FAFO No. 860 of 1996
connected with
FAFO No. 3375 of 2009

Netrapal Singh ...Appellant
Versus
U.P.S.R.T.C. & Anr. ...Respondents

Counsel for the Appellant:
Sri Yogendra Pal Singh

Counsel for the Respondents:
Sanjeev Kumar Yadav

A. Civil Law-Motor Vehicle Act, 1988 -
Contributory Negligence - Comparative Liability
of heavy and light motor - Held, the liability of
the
heavy
vehicle
is
more.
(Para
12)
3-5 All. Netrapal Singh Vs. U.P.S.R.T.C. & Anr.
1443
B. Motor Vehicle Act, 1988
- IInd
Schedule - Determination of Compensation -
Multiplier - Multiplier Table is provided by Apex
Court in Smt. Sarla Verma's case - Tribunal had
committed wrong in applying the multiplier of
18 accepting the age of the claimant as 28
years - The Hon'ble Apex Court has provided
the multiplier of 17 for the age group of 26 to
30 years and as such the appropriate multiplier
in the present case would be 17. (Para 16 and
18)
Appeal disposed off (E-1)
Cases relied on :-
1. FAFO No. 1818 of 2012; Bajaj Allianz General
Insurance Co. Ltd. Vs. Smt. Renu Singh & ors.
decided by Allahabad High Court on 19.7.2016
2. Raj Kumar Vs. Ajay Kumar; 2011 (1) TAC 785
3. Smt. Sarla Verma Vs. Delhi Road Transport
Corporation; 2009(2) TAC 677
4. National Insurance Company Ltd. Vs. Pranay
Sethi; 2017(4) T.A.C. 673

(Delivered by Hon'ble Vipin Chandra Dixit, J.)

1. Both the First Appeals From
Orders have been filed under Section 173
of Motor Vehicle Act, 1988(hereinafter
referred as 'Act, 1988') against the
judgment and award dated 13.9.1996
passed
by
Motor
Accident
Claims
Tribunal/Vth Additional District Judge,
Bulandshahr(hereinafter
referred
as
'Tribunal') in Motor Accident Claim
Petition No. 88 of 1992 by which
compensation of Rs.2,02,000/- alongwith
12% interest had been awarded to the
claimant Netrapal Singh on account of
injuries received by him in a road accident.
Both the appeals were connected and with
the consent of counsel for the parties are
being decided by common judgment.

2. Brief facts of the case are that the
claimant Netrapal Singh had filed claim
petition under section 140 and 166 of Act,
1988
claiming
compensation
of
Rs.9,75,000/- alongwith 18% interest on
account of injuries received by him in a
road accident which had occurred on
16.1.1992. It is alleged in the claim petition
that the claimant is owner and driver of
mini bus bearing no. DL-5C-4895 and was
going to Meerut from village Pittobans,
District Bulandshahr and about 6:30- 7:00
a.m. on 16.1.1992 when he reached near
'pullia' of village Kaithala at BulandshahrGulawathi road, all of a sudden Roadways
bus bearing no. UGE-705 driven by its
driver rashly and negligently came from the
opposite direction (Gulawathi side) and
dashed the mini bus of claimant who
received grievous injuries in the accident. It
is also alleged in the claim petition that on
account of injuries the claimant has become
permanent disabled and as per disability
certificate issued by Chief Medical Officer,
Meerut he has become permanent disabled
to the extent of 58%. The FIR was lodged
on 17.1.1992 at 10 A.M. regarding the
accident at Gulawathi Police Station. The
age of the claimant was 26 years at the time
of accident and his income was Rs.6000/-
per month from transport business but on
account of disability he is unable to do
anything.

3. The opposite party/U.P. State Road
Transport Corporation(hereinafter referred
as "Corporation") had put in appearance
and filed its written statement denying the
claim allegations and it was pleaded in the
written statement that there was fog in the
morning and the claimant who was driving
mini bus came from wrong side without
blowing light and collided with the bus and
there was no negligence on the part of
driver of the Corporation and the accident
was occurred on account of sole negligence
of the claimant himself. It was also pleaded
1444 INDIAN LAW REPORTS ALLAHABAD SERIES
that owner and insurance company of mini
bus was not impleaded as a party.

4. The Tribunal had framed five
issues
for
determination
regarding
negligence of the driver of the Corporation,
contributory negligence of the claimant,
non-impleadment of necessary parties as
well as quantum of compensation. The
claimant himself had appeared as P.W.-1
and had also produced one eye witness
Narendra Singh as P.W.2, Dharamveer
Singh(father of the claimant) as P.W.-3,
Vijay Daleep, General Manager of Priya
Hospital as P.W.-4 and Naveen Kumar,
Junior Clerk of C.M.O. office Meerut as
P.W.-5,whereas
the
driver
of
the
Corporation had appeared as D.W.-1 and
Narendra Mohan Sharma, Junior Station
Incharge
of
Bulandshahr
Depo
had
appeared as D.W.-2.

5. The Tribunal had recorded the
finding while deciding issue nos. 1 and 2
that both the vehicles were coming from
opposite directions and both the drivers
were driving their vehicles rashly and
negligently and were responsible for the
accident and hold 40% negligence of
claimant who was driving the mini bus and
60% negligence of the driver of the
Corporation. The issue no.3 regarding non
impleadment of parties was decided against
the claimant holding that owner and
insurance company of mini bus were
necessary parties and since they are not
impleaded as a party in the claim petition,
the claimant is not entitled for 40% amount
of compensation.

6. While deciding issue nos. 4 & 5
regarding quantum of compensation, the
Tribunal had disbelieved the income of
Rs.6000/- per month as alleged by the
claimant and it was accepted as Rs.3000/-
per month and deducting 1/3rd towards
personal expenses and the multiplier of 18
was applied accepting the age of claimant
as 28 years. The future loss of earning was
accepted as 58% of the income accepting
58% permanent disability discloses in the
disability certificate and assessed the
amount of compensation as Rs.3,36,560
including medical expenses and other non
pecuniary
damages.
The
amount
of
compensation was reduced to the extent of
40% on account of 40% contributory
negligence
and
compensation
of
Rs.2,02,000/- alongwith 12 % interest was
awarded vide judgment and award dated
13.9.1996 which is impugned in both the
appeals.

7. FAFO No. 860 of 1996 was filed
by the claimant for enhancement of
compensation on the ground that 40%
amount has wrongly been deducted towards
contributory negligence, the amount of
compensation granted for the pain and
agony suffered by the claimant is too low,
the income of the claimant has wrongly
been assessed as Rs.3000/- per month in
place of Rs.6000/- per month and Tribunal
has also erred in accepting 58% loss of
earning capacity on account of 58%
disability whereas on account of disability
the claimant/appellant has become unfit for
any job and there is 100% loss of earning.

8. FAFO No. 3375 of 2009(Old
Defective No. 56 of 1997) has been filed by
the Corporation against the same award on
the ground that the accident occurred on
account of rash and negligent driving of the
claimant himself who was driving the mini
bus and there was no negligence on the part
of driver of the Corporation and 60%
liability has wrongly been imposed upon
the Corporation holding 60% negligence of
driver of Corporation and a very excessive
3-5 All. Netrapal Singh Vs. U.P.S.R.T.C. & Anr.
1445
amount of compensation has been awarded
and the rate of interest as 12 % is also on
higher side.

9. Heard Sri Yogendra Pal Singh,
learned counsel for claimant Netrapal
Singh and Sri Sanjeev Kumar Yadav,
learned counsel for U.P. State Road
Transport Corporation and perused the
record.

10. The factum of accident has not
been disputed by the parties but only the
rash and negligence has been disputed by
both the parties. The Tribunal had decided
the issue of negligence holding that the
drivers of both the vehicles were negligent
and responsible for the accident and 60%
liability has been fixed upon Corporation
holding 60% negligence of driver of
Corporation and 40% of the claimant
holding his contributory negligence. The
learned counsel for the Corporation has
submitted that the accident had occurred on
account of sole negligence of claimant and
there was no negligence of Corporation
driver. On the other hand, the learned
counsel for claimant has submitted that the
driver of Corporation was sole negligent
and responsible for the accident.

11. The principles for deciding
negligence and contributory negligence had
been discussed by the Division Bench of
this Court in FAFO No. 1818 of 2012
Bajaj Allianz General Insurance Co.
Ltd. vs. Smt. Renu Singh and others
decided
on
19.7.2016.
The
relevant
paragraph nos. 16,19,22 and 25 are
reproduced herein below:-

"16. Negligence means failure to
exercise required degree of care and
caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence.
It is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one. It is rather a
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no
legal consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

19. In view of the fast and
constantly increasing volume of traffic,
motor vehicles upon roads may be
regarded to some extent as coming within
the principle of liability defined in Rylands
V/s. Fletcher, (1868) 3 HL (LR) 330. From
the point of view of pedestrian, the roads of
this country have been rendered by the use
of motor vehicles, highly dangerous. 'Hit
and run' cases where drivers of motor
vehicles who have caused accidents, are
unknown. In fact such cases are increasing
in number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the case
may be, should be entitled to recover
damages if principle of social justice
should have any meaning at all.

22. By the above process, the
burden of proof may ordinarily be cast on
the defendants in a motor accident claim
petition to prove that motor vehicle was
1446 INDIAN LAW REPORTS ALLAHABAD SERIES
being driven with reasonable care or that
there is equal negligence on the part of
driver of another vehicle.

25. Truck is a very big vehicle
where as a car is relatively a very small
vehicle. The driver of truck should have
taken proper care which he has not taken
and therefore, it cannot be said that the
driver of truck was not solely negligent. We
find no reason to accept the submission of
learned counsel for appellant that driver of
truck was not solely negligent."

12. In view of the ratio of the above
decision, obviously the liability of the
heavy vehicle appears to be more. The
Tribunal is not justified in confining it to
60%. Taking into account of the entire
evidence on record and the fact that the bus
of the corporation had hit the mini bus from
front slightly on the wrong side, the interest
of justice would require the apportionment
of negligence in the ratio of 70% and 30%
respectively.

13.

So
far
as
quantum
of
compensation is concerned, the claimant
had not produced any authentic evidence
regarding his income and no income tax
return was filed and even he had failed to
produce
any
document
regarding
ownership of the mini bus and as such the
Claims Tribunal has rightly accepted the
notional income of the claimant as
Rs.3000/- per month.

14. It is further submitted by the
counsel for the claimant that the Claims
Tribunal had erred in accepting 58% loss of
earning on the basis of 58% permanent
disability mentioned in the disability
certificate issued by Chief Medical Officer
whereas there was 100% loss of earning
capacity. On the other hand, learned
counsel for the Corporation has submitted
that the loss of earning was accepted on
higher side without recording any finding
towards functional disability of whole
body.

15. The Hon'ble Apex Court in Raj
Kumar vs. Ajay Kumar reported in 2011
(1) TAC 785 has laid down the law in
respect of assessment of future loss of
income in the case of injury. The relevant
paragraphs 8 and 18 are reproduced herein
below:-

"8. Where the claimant suffers a
permanent disability as a result of injuries,
the assessment of compensation under the
head of loss of future earnings, would
depend upon the effect and impact of such
permanent
disability
on
his
earning
capacity.
The
Tribunal
should
not
mechanically apply the percentage of
permanent disability as the percentage of
economic loss or loss of earning capacity.
In most of the cases, the percentage of
economic loss, that is, percentage of loss of
earning capacity, arising from a permanent
disability will be different from the
percentage of permanent disability. Some
Tribunals wrongly assume that in all cases,
a
particular
extent
(percentage)
of
permanent disability would result in a
corresponding loss of earning capacity,
and consequently, if the evidence produced
show 45% as the permanent disability, will
hold that there is 45% loss of future
earning capacity. In most of the cases,
equating the extent (percentage) of loss of
earning capacity to the extent (percentage)
of permanent disability will result in award
of
either
too
low or
too
high a
compensation.
What
requires
to
be
assessed by the Tribunal is the effect of the
permanently disability on the earning
capacity of the injured; and after assessing
the loss of earning capacity in terms of a
3-5 All. Netrapal Singh Vs. U.P.S.R.T.C. & Anr.
1447
percentage of the income, it has to be
quantified in terns of money, to arrive at
the future loss of earnings (by applying the
standard
multiplier
method
used
to
determine loss of dependency). We may
however note that in some cases, on
appreciation of evidence and assessment,
the Tribunal may find that percentage of
loss of earning capacity as a result of the
permanent disability, is approximately the
same as the percentage of permanent
disability in which case, of course, the
Tribunal will adopt the said percentage for
determination of compensation (see for
example, the decisions of this court in
Arvind Kumar Mishra v. New India
Assurance Co. Ltd.- 2010(10) SCALE 298
and Yadava Kumar v. D.M. National
Insurance Co. Ltd. - 2010 (8) SCALE
567).

18. The Tribunal has proceeded
on the basis that the permanent disability of
the injured-claimant was 45% and the loss
of his future earning capacity was also
45%. The Tribunal overlooked the fact that
the disability certificate referred to 45%
disability with reference to left lower limb
and not in regard to the entire body. The
said extent of permanent disability of the
limb could not be considered to be the
functional disability of the body nor could
it be assumed to result in a corresponding
extent of loss of earning capacity, as the
disability would not have prevented him
from carrying on his avocation as a cheese
vendor, though it might impede in his
smooth functioning. Normally, the absence
of clear and sufficient evidence would have
necessitated remand of the case for further
evidence on this aspect. However, instead
of remanding the matter for a finding on
this issue, at this distance of time after
nearly two decades, on the facts and
circumstances, to do complete justice, we
propose to assess the permanent functional
disability of the body as 25% and the loss
of future earning capacity as 20%."

16. The Claims Tribunal while
assessing the loss of earning capacity has
failed to consider the actual functional
disability and had erred in accepting 58%
loss of earning capacity whereas on
account of evidence adduced by the
claimant the functional disability is
accepted as 45% and loss of future
earning capacity as 40%. While assessing
the just compensation I found that the
Tribunal
had
committed
wrong
in
applying the multiplier of 18 accepting
the age of the claimant as 28 years as the
Hon'ble Apex Court in the case of Smt.
Sarla Verma vs. Delhi Road Transport
Corporation reported in 2009(2) TAC
677
has
held
that
there
are
discrepancies/errors in the multiplier
scale given in the second schedule and
provided multiplier table. Para 21 is
reproduced herein below:-

"21. We therefore hold that the
multiplier to be used should be as
mentioned in column (4) of the Table
above (prepared by applying Susamma
Thomas, Trilok Chandra and Charlie),
which starts with an operative multiplier
of 18 (for the age groups of 15 to 20 and
21 to 25 years), reduced by one unit for
every five years, that is M-17 for 26 to 30
years, M-16 for 31 to 35 years, M-15 for
36 to 40 years, M-14 for 41 to 45 years,
and M-13 for 46 to 50 years, then
reduced by two units for every five years,
that is, M-11 for 51 to 55 years, M-9 for
56 to 60 years, M-7 for 61 to 65 years
and M-5 for 66 to 70 years."

17. The multiplier table provided in
the above decision was also affirmed by the
Constitutional Bench of Hon'ble Apex
1448 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in the case of National Insurance
Company Ltd. vs. Pranay Sethi reported
in 2017(4) T.A.C. 673.

18. The Hon'ble Apex Court has
provided the multiplier of 17 for the age
group of 26 to 30 years and as such the
appropriate multiplier in the present case
would be 17.

19. The Claims Tribunal had also
erred in deducting 1/3rd towards personal
expenses, which is applicable only in the
case of death, as held by Hon'ble Apex
Court in the case of Raj Kumar(supra).
The paragraph 20 is reproduced herein
below:-

"20. In the case of an injured
claimant
with
a
disability,
what
is
calculated is the future loss of earning of
the claimant, payable to claimant, (as
contrasted
from
loss
of
dependency
calculated in a fatal accident, where the
dependent family members of the deceased
are the claimants). Therefore there is no
need to deduct one-third or any other
percentage from out of the income, towards
the personal and living expenses."

20. The claims Tribunal had not awarded
any amount towards future prospects, whereas
the claimant is also entitled 40% future
prospects in view of law laid down by the
Constitutional Bench of Hon'ble Apex Court in
the case of National Insurance Company
Ltd. vs. Pranay Sethi reported in 2017(4)
T.A.C. 673.

21. In view of aforesaid discussion, the
quantum of compensation has been reassessed
as follows:-

1) Monthly income Rs.3000/-

2) Annual income Rs.3000/- X 12 =
Rs. 36,000/-

3)
Future
prospects
40%
=
Rs.14,400/-

4) Total annual income = Rs.36000/-
+ Rs.14,400 =Rs.50,400/-

5) Loss of earning capacity 40% =
Rs.20,160/-

6)
Multiplier
applicable
-17
=Rs.20,160 x 17 = 3,42,720/-

7) Medical expenses Rs.60,000/-

8)
Non-pecuniary
damages
Rs.25,000/-

Total Rs. 3,42,720/- + Rs.60,000/- +
Rs.25,000/- =Rs.4,27,720/-

22. Since the claimant himself was found
negligent to the extent of 30%; as such the
amount of compensation is reduced to 30%(Rs.
4,27,720/- minus Rs.1,28,316/- =2,99,404/-). It
is taken in round figure as Rs.3,00,000/-. The
rate of interest as 12% is also on higher side.
The Hon'ble Apex Court in a latest decision
Civil Appeal No.242/243 of 2020 National
Insurance Company Ltd. vs. Birender and
others has awarded 9% interest.

23. In view of aforesaid discussion, both
the appeals are hereby disposed off and award
of the Tribunal is modified and compensation
awarded by the Tribunal is enhanced from
Rs.2,02,000/- to Rs.3,00,000/- with interest at
the rate of 9% from the date of filing of claim
petition. The corporation is directed to pay
enhanced amount within two months.

24. No order as to costs.
----------

(2020)03-05ILR A1448
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2020

BEFORE