# Smt. Raj Biri & Ors v. Regional Manager, U.P.S.R.T.C., Ghaziabad & Anr

- **Citation:** (2022) 5 ILRA 807
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-21
- **Case number:** First Appeal From Order No. 2783 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-raj-biri-ors-v-regional-manager-u-p-s-r-t-c-ghaziabad-anr-48592
- **Pages:** 6

## Headnote

Civil Law - Motor Vehicles Act,1988 -
Section 168 - Quantum of Compensation -
Deceased doing dairy business - Court
considered his income to be Rs 5000 per month
- Annual Income : Rs.60,000 Per annum
(Rs.5,000 X 12) - Deceased self employed &
below 35 yrs therefore Percentage towards
future prospects 40% : Rs. 24,000 - Total
income : Rs. 60,000 + Rs.24,000 = Rs. 84,000 -
deceased survived by his wife, three minor
children and mother, who were dependent on
him therefore Income after deduction 1/3 : Rs.
84,000 - 28,000 = Rs.56,000 - Deceased aged
35 years Multiplier applicable : 16 - Loss of
Dependency : Rs. 56,000 X 16 = Rs.8,96,000 -
Amount under non pecuniary head : Rs. 70,000
- deceased had three minor children Filial
Consortium : Rs.50,000 X 3 = Rs.1,50,000 -
Total compensation : Rs.8,96,000 + Rs.70,000/-
+ Rs.1,50,000 = Rs.11,16,000 - Interst at rate
of 7.5% from the date of filing of the claim
petition till the amount is deposited
Allowed. (E-5)

List of Cases cited:

## Text

5 All. Smt. Raj Biri & Ors. Vs. Regional Manager, U.P.S.R.T.C., Ghaziabad & Anr.
807
(2022)05ILR A807
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2022

BEFORE

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

First Appeal From Order No. 2783 of 2008

Smt. Raj Biri & Ors. ...Appellants
Versus
Regional Manager, U.P.S.R.T.C., Ghaziabad
& Anr. ...Respondents

Counsel for the Appellants:
Sri A.K. Dwivedi, Sri Ashok Kumar Pandey,
Sri Bipin, Sri Harish Yadav, Sri Sunil Kumar
Yadav, Sri Yogesh Kumar Sinha, Sri Y.K.
Sinha

Counsel for the Respondents:
Sri Sunil Kumar Misra, Sri Amaresh Sinha,
Sri Anubhav Sinha, Sri Ramanuj Pandey

Civil Law - Motor Vehicles Act,1988 -
Section 168 - Quantum of Compensation -
Deceased doing dairy business - Court
considered his income to be Rs 5000 per month
- Annual Income : Rs.60,000 Per annum
(Rs.5,000 X 12) - Deceased self employed &
below 35 yrs therefore Percentage towards
future prospects 40% : Rs. 24,000 - Total
income : Rs. 60,000 + Rs.24,000 = Rs. 84,000 -
deceased survived by his wife, three minor
children and mother, who were dependent on
him therefore Income after deduction 1/3 : Rs.
84,000 - 28,000 = Rs.56,000 - Deceased aged
35 years Multiplier applicable : 16 - Loss of
Dependency : Rs. 56,000 X 16 = Rs.8,96,000 -
Amount under non pecuniary head : Rs. 70,000
- deceased had three minor children Filial
Consortium : Rs.50,000 X 3 = Rs.1,50,000 -
Total compensation : Rs.8,96,000 + Rs.70,000/-
+ Rs.1,50,000 = Rs.11,16,000 - Interst at rate
of 7.5% from the date of filing of the claim
petition till the amount is deposited
Allowed. (E-5)

List of Cases cited:

1. Kurvan Ansari @ Kurvan Ali & anr. Vs Shyam
Kishore Murmu & anr., 2021 (4) TAC 673
(Supreme Court)

2. Puttamma & ors. Vs K.L. Narayana Reddy &
anr., 2014 (1) TAC 926 & Kishan Gopal & anr.Vs
Lala & ors., 2013 (4) TAC 5

3. National Insurance Co. Vs Pranay Sethi [2014
(4) TAC 637 (SC)]

4. Smt.Sarla Verma Vs Delhi Transport Corp.
[2009 (2) TAC 677 (SC)]

5. Pappu & ors. Vs Vinod Kumar Lamba & anr.,
2018 (0) Supreme (SC) 42

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

7. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co. Ltd., [2007(2) GLH 291]

8. Review Application No.1 of 2020 in First
Appeal From Order No.23 of 2001 (Smt.
Sudesna & ors. Vs Hari Singh & anr.)

9. First Appeal From Order No.2871 of 2016
(Tej Kumari Sharma v. Chola Mandlam M.S.
General Insurance Co. Ltd.) dt 19.3.2021

10. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs U.O.I. & ors.

(Delivered by Hon'ble Ajai Tyagi, J.

1. This appeal has been preferred by
the
claimants-appellants
against
the
judgment & order dated 30.05.2008 passed
by
learned
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.4,
District
Ghaziabad
in
Motor
Accident Claim Petition No.158 of 2006
(Smt. Raj Biri and Others Vs. Regional
Manager, Regional Office, U.P. State Road
Transport
Corporation),
whereby
the
808 INDIAN LAW REPORTS ALLAHABAD SERIES
learned Tribunal has awarded a sum of
Rs.2,51,600/- as compensation to the
claimants with interest at the rate of 6% per
annum.

2. The brief facts of the case are that
claimants-appellants filed a Motor Accident
Claim Petition before the Tribunal for
claiming the compensation under Motor
Vehicles Act, 1988 for the death of Mahesh in
a road accident with the averments that on
19.12.2005, Mahesh-deceased along with his
friends was going to his house from Delhi by
tractor, when he reached at village Luhari, a
bus bearing no. U.P. 14 T 9563 was coming,
which was being driven very rashly and
negligently by its driver. The aforesaid bus
being driven in such a manner dashed the
deceased's tractor. In this accident, deceased
sustained very serious injuries and died on the
way to hospital.

3. Aggrieved mainly with the
compensation
awarded,
the
appellants
preferred this appeal.

4. Heard learned counsel for the
appellants-claimants and learned counsel
for the respondents. Perused the record.

5. The accident is not in dispute. The
issue of negligence has attained finality as
neither the Insurance Company nor the owner
of the vehicle has disputed the same even in
oral submissions. The driver of the said
vehicle was having valid and effective
driving licence on the date of accident is also
a decided fact. The vehicle being insured and
there being no breach of policy condition is a
finding, which has attained finality. The only
issue to be decided is the quantum of
compensation awarded by the Tribunal.

6. Learned counsel for the appellantsclaimants has submitted that the learned
Tribunal has assessed the monthly income
of the deceased at Rs.2,400/- per month
while the deceased was a farmer and also
doing animal husbandry. Deceased was in a
dairy business and land record shows that
he had property, which was there and was
earning Rs.48,000/- per month but learned
Tribunal has wrongly assessed the monthly
income of the deceased. The Tribunal has
not added any amount towards future loss
of income, which, in our opinion is bad on
facts. Learned Tribunal has deducted 1/3rd
towards personal expenses of the deceased
and has granted multiplier of 13 and but
has not granted any amount under the head
of non pecuniary damages.

7.

Learned
counsel
for
the
respondents have vehemently objected the
submissions of learned counsel for the
appellants on the issue of enhancement of
compensation. It is submitted that learned
Tribunal has awarded just compensation as
per law admissible to the claimants which
does not call for any interference by this
Court.

8. Learned counsel for the appellantsclaimants has submitted that it is an internal
dispute between the insurance company
and the owner of the vehicle and the
appellants being legal representative of the
third party, they cannot be punished for non
production of the driving licence by the
U.P.S.R.T.C. Learned counsel for the
appellants-claimants has submitted that
deceased was survived by his wife, three
minor children and mother, who were
dependent on him, hence 1/4th should be
deducted.
It
is
also
submitted
that
appellants-claimants are also entitled to get
non pecuniary damages and the same may
be granted. It is submitted that recently, the
Hon'ble Apex Court has decided the
controversy ans settled the law regarding
the death of a child in Kurvan Ansari @
5 All. Smt. Raj Biri & Ors. Vs. Regional Manager, U.P.S.R.T.C., Ghaziabad & Anr.
809
Kurvan Ali and another Vs. Shyam
Kishore Murmu and another, 2021 (4)
TAC 673 (Supreme Court) be made
applicable. In this case, the Hon'ble Apex
Court has stated that in spite of repeated
directions, Scheduled-II of Motor Vehicles
Act, 1988 is not yet amended. Therefore,
fixing notional income of Rs.15,000/- per
annum for non earning members is not just
and reasonable. It is further submitted that
the Apex Court that in the cases of
Puttamma and others Vs. K.L. Narayana
Reddy and another, 2014 (1) TAC 926 and
Kishan Gopal and another v. Lala and
others, 2013 (4) TAC 5, it is a fit case to
increase the notional income by taking into
account the inflation, devaluation of the
rupees and cost of living.

9. With the aforesaid observations,
the Hon'ble Apex Court took the notional
income of the deceased who was 7 years
old at Rs.25,000/- per annum. In our case,
the deceased was running his business and
was having 35 buffalos and, therefore, we
consider his income to be Rs.5,000/- per
month. Since, the deceased will fall within
the category of self employed and his age
was 35 years at the time of accident, 40%
shall be added towards future loss of
income as held by Hon'ble Apex Court in
National Insurance Company vs. Pranay
Sethi [2014 (4) TAC 637 (SC)]. Keeping in
view the age of the deceased, multiplier of
16 will be admissible in the light of the
judgment of Hon'ble Apex Court in the
case of Smt.Sarla Verma vs. Delhi
Transport Corporation [2009 (2) TAC 677
(SC)]. We cannot accept the submission
that 1/4 be the deduction of personal
expenses of the deceased. Learned Tribunal
has rightly deduced 1/3rd for personal
expenses, we also maintain the same.

10. As far as non-pecuniary damages
are concerned, the Tribunal has not
awarded any sum towards non pecuniary
damages. No reasons are assigned and only
Rs.2,000/- is awarded for funeral expenses.
In the light of Judgment in the case of
Pranay Sethi (supra), claimants shall be
entitled to get Rs.15,000/- each for loss of
estate and funeral expenses. Apart from it,
the wife of the deceased shall also be
entitled to get Rs..40,000/- for loss of
consortium. In this way, the appellants
shall be entitled to get Rs.70,000/- for nonpecuniary heads. Three minor children of
the deceased, lost their father at a very
tender age, hence, children of the deceased
shall be entitled to get Rs.50,000/- each
towards loss of parental love in the light of
the judgment of Hon'ble Apex Court in the
case of Kurvan Ansari alias Kurvan Ali
(Supra).

11. Hence, the total amount of
compensation, in view of the above
discussions, payable to the appellantsclaimants is being computed herein below:

(i) Annual Income : Rs.60,000/-
Per annum (Rs.5,000 X 12)

(ii) Percentage towards future
prospects 40% : Rs. 24,000/-

(iii) Total income : Rs. 60,000/- +
Rs.24,000/- = Rs. 84,000/-

(iv) Income after deduction 1/3 :
Rs.84,000 - 28,000/- = Rs.56,000/-

(v) Multiplier applicable : 16

(vi) Loss of Dependency : Rs.
56,000/- X 16 = Rs.8,96,000/-
810 INDIAN LAW REPORTS ALLAHABAD SERIES

(vii)
Amount
under
non
pecuniary head : Rs.70,000/-

(viii)
Filial
Consortium
:
Rs.50,000 X 3 = Rs.1,50,000/-

(ix)
Total
compensation
:
Rs.8,96,000 + Rs.70,000/- + Rs.1,50,000/-
=

Rs.11,16,000/-

Submissions for breach of policy
conditions as far as licence is concerned.

12. Mr. Anubhav Sinha, learned
counsel
appearing
for
the
Insurance
Company has submitted that this is an
appeal which is continuation of the
proceedings. He can raise oral cross
objection and submitted that there is no
finding of fact that U.P.S.R.T.C. had not
examined the driver nor did it produce any
record showing the driver was certified to
drive the bus of U.P.S.R.T.C. on the date of
accident and, therefore, the finding is bad
and the Insurance Company should be
given recovery rights.

13. As against this, Mr. S.K. Mishra,
learned counsel appearing for the U.P.S.R.T.C.
submits that in fact though filing of reply, it is
categorically mentioned that the driver was
having valid driving licence to drive the said
vehicle but it is accepted position of fact that the
same was not produced before the learned
Tribunal. It is also submitted that this court may
consider the application under Order XLI Rule
27, which was filed long back, which has
heavily relied on the decision of this Court
passed in First Appeal From Order (Defective)
No.171 of 2000 of the learned Single Judge.

14. Learned counsel for the Insurance
Company has heavily relied on the
judgment of Apex Court in the case of
Pappu and Others Vs. Vinod Kumar
Lamba and Another, 2018 (0) Supreme
(SC) 42, so as to contend that onus would
then shift on Insurance Company to rebut
the same. The driver of the bus or the
owner in whose possession the licence
should produce the same and prove the
same.

15. As far as issue of rate of interest is
concerned, learned Tribunal has awarded
the compensation with interest at the rate of
6% per annum. It should be 7.5% on the
enhanced amount 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."

16. It is pointed out by learned
counsel for the respondents that the appeal
was dismissed in default on 03.04.2018 and
the same came to be restored recently.
However, none has appeared for the
Oriental
Insurance
Company
till
08.10.2021, therefore, interest shall not be
deducted for the same period. The mute
question would be who would pay to the
claimants. The primary duty is of the driver
5 All. Smt. Raj Biri & Ors. Vs. Regional Manager, U.P.S.R.T.C., Ghaziabad & Anr.
811
and owner namely, U.P.S.R.T.C. who is the
owner of the vehicle. We first direct the
Insurance Company to deposit the amount,
and we grant recovery rights to the
Insurance Company to recover from the
U.P.S.R.T.C. who shall by satisfy that the
driver had a proper valid driving licence
and the vehicle was plied with all requisite
documents. The said exercise would be
completed within 12 weeks from today.

17. While going through the facts, it
is clear that U.P.S.R.T.C. though did not
produce the licence before the Tribunal. It
has by way of application under Order XLI
Rule 27 of C.P.C., produced the copy,
which goes to show that they have verified
that the driver was authorized to drive the
vehicle. The Tribunal could not have
shifted the burden on the Insurance
Company as the judgment of Pappu and
Others (Supra) is very clear. The Tribunal
could not have held that it was primary
duty of the Insurance Company. The
finding of issue no.2 is whether the driver
had proper driving licence. The Tribunal
has answered the said question as held
against the Insurance Company and has
passed
the
award
against
all
the
respondents
and,
therefore,
this
oral
submission
is
also
considered.
The
judgment of Apex Court in Pappu and
Others (Supra) enjoining the duty of the
owner to file document which was not
filed.
The
dispute
is
between
the
U.P.S.R.T.C. and the Insurance Company.
In the beginning, Insurance Company
would satisfy the award and if Insurance
Company is able to satisfy the executing
Court that the driver did not have any
driving licence, they would be entitled to
recover the amount. As this is the special
case of government agency to be going for
recovery rights, if the U.P.S.R.T.C. by
cogent evidence, proves by the Insurance
Company that the driver who was engaged
by them was having valid driving licence.
The matter should end there, failing which,
the Insurance Company would be entitled
to recover the amount of the amount
deposited and if the U.P.S.R.T.C. satisfy
that the driver had a proper driving licence,
if they have deposited any amount by virtue
of the award of the Tribunal, they would be
entitled to reclaimed the amount from
Insurance Company.

18. In view of the above, the appeal is
partly allowed. Judgment and award
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount within a period of 08 weeks from
today with interest as discussed above 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.

19. It appears that from 2008, we do
not find as per the record, whether any
amount
was
deposited
or
not.
The
responsible officer will explain to the
learned Tribunal as to why the amount was
not deposited when there is no stay order in
the matter.

20. It appears from the judgment and
order
that
unfortunately,
the
learned
Tribunal Judge in the operative portion has
not
clarified
who
should
pay
the
compensation as it has held all the
respondents would be liable. It was an
internal dispute between the Insurance
Company and the U.P.S.R.T.C. We request
the Registrar General, Allahabad High
Court to convey our concern to the Motor
Claims Tribunal not to pass such omnibus
order that all would be liable but satisfied
which respondent would be liable to pay
812 INDIAN LAW REPORTS ALLAHABAD SERIES
and which will be liable to indemnify. We
also direct the Insurance Companies
involved and directed to pay other
authorities
not
to
grant
stay
unto
themselves so that the claimants do not
suffer for the internal dispute between the
owner and the Insurance Company, where
award is passed against all.

21. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani vs. The
Oriental
Insurance
Company
Ltd.,
[2007(2) GLH 291] and this High Court in
total amount of interest, accrued on the
principal amount of compensation is to be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimants to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another) and
in First Appeal From Order No.2871 of
2016 (Tej Kumari Sharma v. Chola
Mandlam M.S. General Insurance Co. Ltd.)
decided on 19.3.2021 while disbursing the
amount.

22. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex
Court in Bajaj Allianz General Insurance
Company Pvt. Ltd. Vs. Union of India and
Others, vide order dated 27.01.2022, as the
purpose of keeping compensation is to
safeguard the interest of the claimants.
Since long time has elapsed, the amount be
deposited in the Saving Bank Account of
claimant(s) in a nationalized Bank without
F.D.R.
----------
(2022)05ILR A812
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2021

BEFORE

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

First Appeal From Order No. 2853 of 2005

The Oriental Insurance Co. Ltd.
 ...Appellant
Versus
Kalwe Ali & Anr. ...Respondents

Counsel for the Appellant:
Sri Udai Shanker Mishra

Counsel for the Respondents:

Civil Law - Review - First Appeal From
Order summarily dismissed - Review
Application filed - Held - practice of
summarily
dismissing
appeal
without
assigning reasons, has been deprecated -
where the issues relates to the negligence
and the quantum, it cannot be dismissed
without discussing the same - review
application is allowed (Para 11, 13)

Allowed. (E-5)

List of Cases cited:

1. Thungabhadra Industries Ltd. Vs The
Government of A.P. AIR 1964 SC 1372

2. Aribam Tuleshwar Sharma Vs Aribam Pishak
Sharma 1979 (4) SCC 389