# Smt. Reena Agarwal & Ors v. U.P.S.R.T.C. & Ors

- **Citation:** (2022) 1 ILRA 96
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-10
- **Case number:** First Appeal From Order No. 179 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-reena-agarwal-ors-v-u-p-s-r-t-c-ors-47469
- **Pages:** 6

## Headnote

A. Civil Law - Motor Vehicle Act, 1988 -
Section
176-Enhancement
of
compensation-deceased
was
running
coaching center, he was earning Rs.
35000/- to 40,000/ per month-he left
behind
his
widow
and
four
minor
children-Tribunal awarded a sum of Rs.
18,67,492/- together with interest @
6%
per
annum
as
compensationTribunal deducted 1/4th for personal
expenses and did not add ay amount
towards the future loss of income as he
was self employed person below the age
of 50 years-the annual income would be
Rs 2,30,000/--By applying the multiplier
of 14, the total loss of dependency is
assessed
Rs.
31,18,750/-Thus,
the
claimants
entitled
for
increase
of
compensation a sum of Rs. 31,18,750/-
from Rs. 18,67,492/- with a modified
rate
of
interest
@
7.5%
per
annum.(Paras 1 to 22)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

96 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)01ILR A96
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2021

BEFORE

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

First Appeal From Order No. 179 of 2011

Smt. Reena Agarwal & Ors. ...Appellants
Versus
U.P.S.R.T.C. & Ors. ...Respondents

Counsel for the Appellants:
Sri A.K. Singh

Counsel for the Respondents:

A. Civil Law - Motor Vehicle Act, 1988 -
Section
176-Enhancement
of
compensation-deceased
was
running
coaching center, he was earning Rs.
35000/- to 40,000/ per month-he left
behind
his
widow
and
four
minor
children-Tribunal awarded a sum of Rs.
18,67,492/- together with interest @
6%
per
annum
as
compensationTribunal deducted 1/4th for personal
expenses and did not add ay amount
towards the future loss of income as he
was self employed person below the age
of 50 years-the annual income would be
Rs 2,30,000/--By applying the multiplier
of 14, the total loss of dependency is
assessed
Rs.
31,18,750/-Thus,
the
claimants
entitled
for
increase
of
compensation a sum of Rs. 31,18,750/-
from Rs. 18,67,492/- with a modified
rate
of
interest
@
7.5%
per
annum.(Paras 1 to 22)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Bajaj Allianz General Ins. Co.Ltd. Vs Smt.
Renu Singh & ors.,FAFO No.1818 of 2012

2. Rylands Vs Fletcher (1868) 3 HL LR 330

3. Jacob Mathew Vs St. of Punj. (2005) 0 ACJ
SC 1840

4. National Ins. Co. Ltd. Vs Pranay Sethi & ors.
(2017) 0 Supreme SC 1050

5. National Ins. Co. Ltd. Vs Mannat Johal & ors.
(2019) 2 TAC 705 SC

6. A.V. Padma Vs Venugopal (2012) 1 GLH SC 442

7. Smt. Hansagori P. Ladhani Vs The Oriental
Ins. Co. Ltd.(2007) 2 GLH 291

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

1. Heard Sri A. K. Singh, learned
counsel for the appellants, learned counsel
for the respondents-for the Insurance
Company and none has appeared for the
owner and perused the judgment and order
impugned.

2. This appeal challenges the
compensation findings and negligence by
the Tribunal being Motor Accident
Claims Tribunal, Aligarh, (hereinafter
referred to as Tribunal) in M.A.C.P. No.
695 of 2008, awarding a sum of Rs.
18,67,492/- against the Uttar Pradesh
State
Road
Transport
Corporation,
(U.P.S.R.T.C.) with interest at the rate of
6% from date of application.

3. The accident is not in dispute. The
issue of negligence decided by the Tribunal
is not in dispute. The respondents have not
challenged the liability imposed on them.
The only issue to be decided is the
compensation awarded.
1 All. Smt. Reena Agarwal & Ors. Vs. U.P.S.R.T.C. & Ors.
97

4. The accident and involvement of
vehicle of respondent is not in dispute,
where the vehicle of U.P.S.R.T.C., was not
insured with any Insurance Company is
also not in dispute. The issue of negligence
as decided by Tribunal has attained finality.
The only issue raised for our consideration
to be decided is the issue of compensation
awarded by the Tribunal for tortuous act of
the driver of Uttar Pradesh State Road
Transport Corporation. (U.P.S.R.T.C.).

5. The brief facts for our purpose
which relates to compensation awarded is
that accident occurred involving the bus
whereby the deceased-Sanjeev Kumar
Agarwal breathed his last. The deceasedSanjeev Kumar Agarwal was driving the
car, he suffered severe injuries and died on
the spot. He was running coaching center in
the name of Agarwal coaching center at
Aligarh and where even students from out
side of Aligarh were coming to take
coaching and learn.

6. It is submitted by learned counsel
for the appellants that deceased was
earning Rs. 35,000/- to 40,000/- per month.
He left behind him his widow and four
children who were minor. It is further
submitted that claimants have claimed Rs.
70,20,000/- with 18% interest before the
Tribunal, thereafter Tribunal has framed
the issues.

7. We are concerned with issue no. 7
which
relates
to
compensation.
The
claimants had produced several documents
namely the school living certificate, the
income tax returns for the assessment years
2007-2008, 2008-2009
and
2009-2010
were produced before the Tribunal despite
that did not decide.

8. The fact that accident caused the
death of deceased is also proved by the
postmortem report and that finding has
attained finality. The issue of negligence has
also been decided in favour of the claimants.
His income is sought to be proved by PW-3
Anant Sharma and the widow of deceased
namely Smt. Reena Agarwal-PW-1. The
Tribunal has considered negligence of the
deceased to be 25%.

9. 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.

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

11. The Division Bench of this Court
in First Appeal From Order 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
98 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 comear 1992.

Despite given chance to the appellant,
no one has appeared to press this appeal. It
seems to us that the appellant is not
interested in continuing with the appeal.
After waiting for 28 years, I have no other
option but to dismiss the appeal. In view of
the above, this appeal stands dismissed for
non prosecution.

ing
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
1 All. Smt. Reena Agarwal & Ors. Vs. U.P.S.R.T.C. & Ors.
99
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, we are of 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 threeJudge 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

12. The car dashed with bus of Uttar
Pradesh State Road Transport Corporation,
the driver of U.P.S.R.T.C. was more
negligent as he was driving the bigger vehicle
and therefore, he was supposed to take more
care, we uphold the finding of Tribunal as
far as it relates to issue of negligence. ear
1992.

Despite given chance to the
appellant, no one has appeared to press this
appeal.

It seems to us that the appellant is
not interested in continuing with the appeal.

After waiting for 28 years, I have
no other option but to dismiss the appeal.

In view of the above, this appeal
stands dismissed for non prosecution.

13. The issue no. 7 relates to
compensation it is proved that deceased the
age group of 41 to 45 years. He was running
his own school and his income tax returns
shows that for the assessment year 2007-08
his income was Rs. 3,01.373.00/-. Even if we
consider the mean of the returns of all the
years it would come to Rs. 2,30,000/-. per
annum very strangely the Tribunal has
deducted 25% while considering income of
deceased this could not have been done, no
logical reason is assigned thereafter the
Tribunal
deducted
1/4th
for
personal
expenses of deceased and did not add any
amount towards the future loss of income as
he was self employed person.

14. Looking to these facts, we will
have to recalculate the compensation
though vehemently objected by the learned
counsel for the (U.P.S.R.T.C.).

15. It is further submitted that the
Tribunal has assessed his income is Rs.
2,30,000/- which we do not interfere. To
which as the deceased was below the age of
50 years and claimants were not granted
any amount towards future loss of income
of the deceased namely 25% lump sum
100 INDIAN LAW REPORTS ALLAHABAD SERIES
amount Rs. 60,000/- should be added in
view of the decision in National Insurance
Company Limited Vs. Pranay Sethi and
Others, 2017 0 Supreme (SC) 1050. Out
of which as he was having four children
and a widow 1/4th will have to be deducted
as deducted for personal expenses by the
Tribunal the same is maintained. The
multiplier of 14 granted is maintained. The
amount of Rs. 1,00000/- under the head of
non pecuniary damages will have to be
added.

16. The total compensation payable is
recalculated and is computed herein below:

i. Annual Income Rs. 2,30,000/-

ii. Percentage towards future
prospects : 25% namely Rs. 57,500/-

iii.
Total
income
:
Rs.
2,30,000+57,500= Rs. 2,87,500/-

iv. Income after deduction of 1/4
towards personal expenses : Rs. 71,875/-

v. Multiplier applicable : 14

vi. Loss of dependency: Rs.
215625X14= Rs. 30,18,750/-

vii. Amount under non pecuniary
heads : Rs. 100000/-

viii. Total compensation : Rs.
31,18,750/-

17. 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."

18. 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 respondent
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 award and 6% thereafter
till the amount is deposited. The amount
already deposited be deducted from the
amount to be deposited.

19. The Tribunal could not have
deducted 25% ad-hoc amount from the
income of deceased. The 25% has to be
over all compensation which has been
granted and therefore, so that this mistake
may not be committed, this judgment may
be circulated to the M.A.C.T. after
obtaining approval of the Hon'ble Chief
Justice.

20. 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 V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of
investment may not be passed as the
deceased
has
already
elapsed.
The
claimants be paid by RTGS to their account
in bank.

21. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
1 All. Smt. Sarla Devi & Ors. Vs. Satendra Singh & Anr.
101
Smt. Hansaguti P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, 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 claimant 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)
while disbursing the amount.

22.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and apply the judgment of A.V.
Padma (supra). The same is to be applied
looking to the facts of each case.

23. Record and proceedings be sent to
the Tribunal.
----------
(2022)01ILR A101
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2021
BEFORE

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

First Appeal From Order No. 1002 of 2021

Smt. Sarla Devi & Ors. ...Appellants
Versus
Satendra Singh & Anr. ...Respondents

Counsel for the Appellants:
Sri Shiv Narayan Pandey

Counsel for the Respondents:
Sri Mohd. Ashraf

A. Civil Law -Motor Vehicle Act, 1988Section
176-Enhancement
of
compensation-deceased was Assistant
Teacher and his salary was Rs.
30,958/- per month-he left behind his
widow and four minor children-Tribunal
awarded a sum of Rs. 16,95,350/-
together with interest @ 7% per annum
as compensation-Tribunal added 50% of
income towards the future loss of
income keeping in view 30 years of age
of
the
deceased
and
also
applied
multiplier of 17 instead of 16 as per
direction of Apex Court in Sarla Verma
case-Hence, there is no illegality in
fixation of award-award is modified only
to the extent of the rate of interest
which shall be 7.5% per annum.(Para 1
to 16)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Dr. Anoop Kumar Bhattacharya & anr. Vs
National Ins. Co. Ltd. (2021) LawSuit (All) 1327

2. Sarla Verma & ors. VsDTC & anr.(2009) ACJ
1298

3. National Ins. Vs Pranay Sethi & ors. (2017)
LawSuit (SC) 1093