# Smt. Geeta Devi & Ors v. U.P. S.R.T.C. & Anr

- **Citation:** (2019) 2 ILRA 1020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-06
- **Case number:** First Appeal From Order No. 3382 of 2003
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-devi-ors-v-u-p-s-r-t-c-anr-44516
- **Pages:** 6

## Headnote

A. Motor Vehicle Act,1988 - Compensation -
Enhancement - handicap person meeting
with an accident while crossing the road -
Not an act of God - At the most deceased can
be held to be 20 per cent negligent.

Held:- Question is whether the said accident
would fall within the definition of act of God -
Answer is no - It cannot be said that the
deceased died by the act of God - Deceased
being handicapped person, the driver of the
bus should have taken proper cure and
caution in driving the bus on the public road -
At the most deceased not able to cross the
road, he can be held to be 20 per cent
negligent - Claimants are entitled to a total
compensation of Rs.4,54,080/-. (Para 9 & 10)

B. Motor Vehicle Act,1988 - Compensation
- Rate of interest would be 7.5% - from
the date of filing of the claim petition till
the amount is deposited. (Para 11)

First Appeal From Order Partly allowed (E-5)
List of cases cited: -
1.Smt. Gulshan Jahan & ors. Vs Om Prakash &
anr. (2011) 2 ADJ 12 (DB)
2.Smt. Kaushnuma Begum & ors. Vs The New
India Assurance Co. Ltd. & ors. (2001) 1 SCC 5

## Text

1020 INDIAN LAW REPORTS ALLAHABAD SERIES
the deemed gross income of the deceased
would be 40% of Rs. 15,000/- = Rs.
6,000/- + Rs. 15,000/- i.e. Rs. 21,000/- per
month or Rs. 2,54,000/- p.a. After
deducting 1/3rd amount (i.e. 21,0007000) towards the personal and living
expenses of the deceased, his contribution
to the family is determined as Rs.
14,000/- per month or Rs. 1,68,000/- p.a.
After applying the multiplier of 16, the
total loss of dependency is assessed at Rs.
26,88,000/-. We further award a sum of
Rs. 15,000/- towards funeral expenses and
Rs. 40,000/- under the head of loss of
consortium. We accordingly increase the
compensation
awarded
to
the
claimants/appellants by the Tribunal from
Rs. 16,87,000/- to Rs. 27,42,000/-. The
claimants/appellants
shall
further
be
entitled to interest @ 7% p.a. on the
increased amount of compensation from
the date of filing of the claim.

21. The impugned judgement and
award stands modified to the extent
indicated hereinabove.

22. The parties shall bear their own
costs.
----------

(2019)10ILR A 1020

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE

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

First Appeal From Order No. 3382 of 2003

Smt. Geeta Devi & Ors. ...Appellants
Versus
U.P. S.R.T.C. & Anr. ...Respondents
Counsel for the Appellants:
Sri H.P. Gupta, Sri Ramesh Rai

Counsel for the Respondents:
Sri Dinkar Mani Tripathi.

A. Motor Vehicle Act,1988 - Compensation -
Enhancement - handicap person meeting
with an accident while crossing the road -
Not an act of God - At the most deceased can
be held to be 20 per cent negligent.

Held:- Question is whether the said accident
would fall within the definition of act of God -
Answer is no - It cannot be said that the
deceased died by the act of God - Deceased
being handicapped person, the driver of the
bus should have taken proper cure and
caution in driving the bus on the public road -
At the most deceased not able to cross the
road, he can be held to be 20 per cent
negligent - Claimants are entitled to a total
compensation of Rs.4,54,080/-. (Para 9 & 10)

B. Motor Vehicle Act,1988 - Compensation
- Rate of interest would be 7.5% - from
the date of filing of the claim petition till
the amount is deposited. (Para 11)

First Appeal From Order Partly allowed (E-5)
List of cases cited: -
1.Smt. Gulshan Jahan & ors. Vs Om Prakash &
anr. (2011) 2 ADJ 12 (DB)
2.Smt. Kaushnuma Begum & ors. Vs The New
India Assurance Co. Ltd. & ors. (2001) 1 SCC 5
3. Bajaj Allianz Gen. Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. F.A.F.O. No. 1818 of
2012 decided on 19.7.2016
4.National Insurance Co. Ltd. Vs Mannat Johal
& ors. (2019) 2 T.A.C. 705 (S.C.)

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Serve Singh assisted by
Sri Harish Prasad Gupta, learned counsel
2 All. Smt. Geeta Devi & Ors. Vs U.P.S.R.T.C. & Anr.
1021
for the appellants and Sri Dinkar Mani
Tripathi,
learned
counsel
for
the
U.P.S.T.C..

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 04.09.2003 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge, Gorakpur (hereinafter
referred to as 'Tribunal') in M.A.C.P. No.
03 of 2002.

3. The grounds raised in the memo
of
appeal
for
claiming
higher
compensation are as enumerated in para
4, 5, 6,7 which read as follows:-

"(4). The deceased was business
man and has been earning more than 150
per day and was only aged about 35
years, being survived by 2 minor sons, 1
minor daughter, 1 wife, mother and one
brother and all are the dependent of the
deceased, and there is much loss to the
deceased family, after the death of
deceased, and the learned Tribunal has
ignored this aspect of the matter, while
making the award.

(5). The appellants have fully
established their case for multiplying the
claim according to the earning of the
deceased, and of his age, but the learned
Tribunal illegally and erroneous did not
multiplier the claim of the appellants,
hence award is wholly wrong liable be to
interfered by the Hon'ble Court.

(6). Only on the grounds of
being handicap a various liabilities
should not be sifted, as has been done in
the impugned award, by the learned
Tribunal, hence the impugned award is
wholly illegal, erroneous and liable to be
interfered by the Hon'ble Court.

(7).
The
learned
Tribunal
erroneously
and
manifestly
misinterpretated the evidence made by the
appellants, and recorded of perverse
findings of no fault case. Hence the
impugned
order
is
wholly
illegal,
erroneous, and illegal."

The learned Advocate for the
appellants has cited the following judgments
in the case of Smt. Gulshan Jahan and
Others Vs. Om Prakash and Another
[2011 (2) ADJ 12 (DB)] decided on 7th
January, 2011, Smt. Kaushnuma Begum &
Ors. Vs. The New India Assurance Co.
Ltd. & Ors [2001 (1) SCC 5 decided on
03.01.2001 and has contended that the finding
of the Commissioner of the Motor Accidental
Claims Tribunal is bad and has contended that
the Tribunal has granted a paltry sum of
Rs.55,000/- for the death of person aged 35
and was having his own business of stationary
he was survived by six persons and was
earning Rs.3,000/- per month. It has further
contended that the finding of fact that as the
deceased was handicapped and was unable to
cross the road it was an act of God and he was
person responsible for the accident having
taken place. Though the Tribunal believed that
the bus was involved in the accident
belonging to U.P.S.R.T.C. it granted only
Rs.55,000/- as compensation.

4. The principle of negligence
enunciated here in below will have to be
looked into as the Insurance company in
memo of appeal has come with the stand
that there was a head on collision and it
was a case of contributory negligence
and, therefore, there is error apparent on
the face of record and erred in not framing
any issue on that count.

5. The concept of negligence has
been time and again enunciated by
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
different Courts and the word 'negligence'
will have to be viewed from the decision
in Rylands V/s. Fletcher, (1868) 3 HL
(LR) 330 which has been time and again
referred by the Courts in India.

6. The term negligence means
failure to exercise care towards others
which a reasonable and prudent person
would in a circumstance or taking action
which such a reasonable person would
not. Negligence can be both intentional or
accidental which is normally accidental.
More particularly, it connotes reckless
driving and the injured must always prove
that the either side is negligent. If the
injury rather death is caused by something
owned or controlled by the negligent
party then he is directly liable otherwise
the principle of "res ipsa loquitur"
meaning thereby "the things speak for
itself" would apply.

7. The term negligence has been
discussed time and again. A person who
either contributes or is author of the
accident
would
be
liable
for
his
contribution to the accident having taken
place.

8. The Division Bench of this Court
in F.A.F.O. No. 1818 of 2012 (Bajaj
Allianz General Insurance Co.Ltd. Vs.
Smt. Renu Singh And Others) decided
on 19.7.2016 has held as under :

"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.

17. It would be seen that burden
of proof for contributory negligence on
the part of deceased has to be discharged
by the opponents. It is the duty of driver of
the offending vehicle to explain the
accident. It is well settled law that at
intersection where two roads cross each
other, it is the duty of a fast moving
vehicle to slow down and if driver did not
slow down at intersection, but continued
to proceed at a high speed without caring
to notice that another vehicle was
crossing, then the conduct of driver
necessarily leads to conclusion that
vehicle was being driven by him rashly as
well as negligently.

18. 10th Schedule appended to
Motor Vehicle Act contain statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation
clearly directs that the driver of every
motor vehicle to slow down vehicle at
every intersection or junction of roads or
at a turning of the road. It is also
2 All. Smt. Geeta Devi & Ors. Vs U.P.S.R.T.C. & Anr.
1023
provided that driver of the vehicle should
not enter intersection or junction of roads
unless he makes sure that he would not
thereby endanger any other person.
Merely, because driver of the Truck was
driving vehicle on the left side of road
would
not
absolve
him
from
his
responsibility to slow down vehicle as he
approaches
intersection
of
roads,
particularly when he could have easily
seen, that the car over which deceased
was riding, was approaching intersection.

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.

20. These provisions (sec.110A
and sec.110B of Motor Act, 1988) are not
merely
procedural
provisions.
They
substantively affect the rights of the
parties. The right of action created by
Fatal Accidents Act, 1855 was 'new in its
species, new in its quality, new in its
principles. In every way it was new. The
right given to legal representatives under
Act, 1988 to file an application for
compensation for death due to a motor
vehicle accident is an enlarged one. This
right cannot be hedged in by limitations
of an action under Fatal Accidents Act,
1855. New situations and new dangers
require new strategies and new remedies.

21. In the light of the above
discussion, the view that even if courts
may not by interpretation displace the
principles of law which are considered to
be well settled and, therefore, court
cannot dispense with proof of negligence
altogether in all cases of motor vehicle
accidents, it is possible to develop the law
further on the following lines; when a
motor vehicle is being driven with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits (per three-Judge Bench in
Jacob Mathew V/s. State of Punjab, 2005
0 ACJ(SC) 1840).

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
being driven with reasonable care or that
there is equal negligence on the part the
other side."

emphasis added

9. The deceased was a handicapped
person and trying to cross the road and at
that juncture met with an accident. The
claims Tribunal held that not been able to
cross the road and meeting with an
accident as he was a handicapped person
it was an act of God and therefore held
that the deceased was himself negligent
and granted the amount under no fault
liability to the claimants and added
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.5,000/-
towards
non-pecuniary
damages. The question is whether the said
accident would fall within the definition
of act of God. The answer is no. In this
case the driver of the bus has disputed his
liability rather the driver of the bus and
the owner have come out with a another
story that the deceased was hit by some
other vehicle and they have been illegally
roped in. While going through the record
it is clear that the accident occurred by the
involvement of the bus as F.I.R. and
charge sheet were laid against the driver
of the bus. Death occurred due to the
involvement of the bus. The deceased
being handicapped person the driver of
the bus should have taken proper cure and
caution in driving the bus on the public
road. At the most if we hold the deceased
not able to cross the road, he can be held
to be 20 per cent negligent whereas a
driver driving a bus in such a area should
have been cautious which he has failed to
follow and therefore, not granting proper
compensation is bad in eye of law. The
compensation will have to be reevaluated
as it cannot be said that the deceased died
by the act of God. The decisions cited by
the counsel for claimants namely Smt.
Gulshan Jahan and Others Vs. Om
Prakash and Another (supra) and Smt.
Kaushnuma Begum & Ors. Vs. The
New India Assurance Co. Ltd. & Ors
(supra) will apply in full force and
therefore the amount is recalculated.

10. After hearing the learned
counsel for the parties and perusing the
judgment and order impugned, this Court
feels that the income of the deceased, in
the year of accident, should have been at
least
Rs.3,000/-
per
month
namely
Rs.36,000/- per year, to which as the
deceased was below 35 years of age, 40%
of the income i.e. Rs.14,400/- requires to
be added as future income which would
come to Rs.36,000+14,400=50,400/-. The
deduction
of
1/3
towards
personal
expenses of the deceased would be just
and proper as he was survived by six
dependents. Hence, after deduction of 1/3,
the annual datum figure available to the
family
would
be
Rs.33,600/-.
The
multiplier of 16 requires to be granted
looking to the age of the deceased is just
and proper. Rs.5,000/- granted by the
Tribunal under the head of non-pecuniary
damages is required to be enhanced.
Hence, the claimants are entitled to a total
compensation of Rs.33,600X16+30,000=
5,67,600-Rs.1,13,520= Rs.4,54,080/-.

11. However, the rate of interest
which is 8% would 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."

12. 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
2 All. Union of India Insurance Company Ltd. Vs Surya Narayan Shukla & Ors.
1025
amount be recalculated and deposited
with interest at the rate of 7.5% from the
date of filing of the claim petition till the
amount is deposited. The amount be
deposited within a period of 12 weeks
from today. The amount already deposited
be deducted from the amount to be
deposited.

13. The record and proceedings be
send back to the Tribunal forthwith
----------

(2019)10ILR A 1025

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2016

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

First Appeal From Order No. 622 of 2005

Union of India Insurance Company Ltd.
 ...Appellant
Versus
Surya Narayan Shukla & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Tarun Kumar Misra, Sri Pankaj Pandey,
Sri R.B. Pandey.

Counsel for the Respondents:
Sri Pankaj Verma, Sri Pankaj Pandey

A. Motor Vehicles Act, 1988 - Deduction -
Deceased
being
bachelor
-
deduction
towards personal and living expenses,
ordinarily in the case of a bachelor is 50%.
Held: - Deceased being a bachelor and the
claimants being parents, the deduction of 50%
should have been made under the head of
personal and living expenses. (Para 13)
B. Motor Vehicles Act, 1988 - Multiplier -
Multiplier should be based on the age of
the deceased and not on the basis of the
age of the dependent - Multiplier to be
used should be as mentioned in column
(4) of the table of the Sarla Verma
judgment which starts with an operative
multiplier of 18.
Held: - As the age of the deceased at the
time of the death was 20 years, the multiplier
of 18 ought to have been applied. (Para 15)
Appeal Partly allowed (E-5)
List of cases cited: -
1.Sarla Verma Vs DTC (2009) 6 SCC 121
2.Reshma Kumari Vs Madan Mohan (2013) 9
SCC 65
3.Amrit Bhanu Shali Vs National Insurance Co.
Ltd. (2012) 11 SCC 738
4.Ranjana Prakash Vs Divl. Manager (2011) 14
SCC 639

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. List has been revised. No one
appears on behalf of the respondent nos.1
and 2.

2. Heard Sri Tarun Kumar Mishra,
learned counsel for the appellant and Sri
Pankaj Pandey, learned counsel appearing
on behalf of respondent nos.3 and 4.

3. This first appeal from order under
section 173 of the Motor Vehicles Act,
1988 (for short ''Act'), has been filed by
the United India Insurance Company
Limited against the judgment and award
dated 05.05.2005 passed by the Motor
Accident
Claims
Tribunal/Additional
District Judge/Special Judge (E.C. Act),
Gonda in MACP No.29 of 2004 (Surya
Narayan Shukla and another versus Shiva
Shankar Mishra and others), whereby a
sum of Rs.3,62,000/- along with interest