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

- **Citation:** (2022) 1 ILRA 619
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-10
- **Case number:** First Appeal From Order No.2591 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-usha-ors-v-u-p-s-r-t-c-anr-47483
- **Pages:** 7

## Headnote

A. Civil Law -Motor Vehicle Act, 1988Section
176-Enhancement
of
compensation-deceased was working in a
factory and the age of the deceased was
40 years old -Tribunal awarded a sum of
Rs. 3,08,000/- together with interest @
7% per annum as compensation but not
granted
future
loss
of
income-
the
deceased was survived by five dependents
- the deemed gross income would be Rs
5000/-per
month-By
applying
the
multiplier
of
12,
the
total
loss
of
dependency is assessed Rs. 8,28,800/-
Thus, the claimants entitled for increase of
compensation a sum of Rs. 8,28,800/--
from Rs. 3,08,000 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

1 All. Smt. Usha & Ors. Vs. U.P.S.R.T.C. & Anr.
619
matter at any rate higher than that allowed
by High Court."

21. Learned Tribunal has awarded
rate of interest as 7% per annum but we are
fixing the rate of interest as 7.5% in the
light of the above judgment.

22. No other grounds were urged
when the matter was heard.

23. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The Oriental
Insurance Company Ltd., reported in
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.

24. The records and proceedings be
sent back to the Tribunal for disbursement.
----------
(2022)01ILR A619
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.2591 of 2016

Smt. Usha & Ors. ...Appellants
Versus
U.P.S.R.T.C. & Anr. ...Respondents

Counsel for the Appellants:
Sri Alok Kumar Singh

Counsel for the Respondents:
Sri Ramanuj Pandey

A. Civil Law -Motor Vehicle Act, 1988Section
176-Enhancement
of
compensation-deceased was working in a
factory and the age of the deceased was
40 years old -Tribunal awarded a sum of
Rs. 3,08,000/- together with interest @
7% per annum as compensation but not
granted
future
loss
of
income-
the
deceased was survived by five dependents
- the deemed gross income would be Rs
5000/-per
month-By
applying
the
multiplier
of
12,
the
total
loss
of
dependency is assessed Rs. 8,28,800/-
Thus, the claimants entitled for increase of
compensation a sum of Rs. 8,28,800/--
from Rs. 3,08,000 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
620 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Jacob Mathew Vs St. of Punj. (2005) 0 ACJ
SC 1840

4. Khenyei Vs New India Assr. Co. Ltd. & ors
(2015) LawSuit SC 469

5. Sarla Verma & ors. Vs D.T.C. & anr. (2009)
Lawsuit SC 613

6. National Ins. Com. Ltd. Vs Pranay Sethi &
ors. (2017) LawSuit SC 1093

7. National Ins. Co. Ltd. Vs Mannat Johal & ors.
(2019) 2 T.A.C. 705 SC

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

9. Smt. Sudesna & ors Vs Hari Singh & anr.
FAFO No . 23 of 2001

10. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Ins. Co. Ltd, FAFO No. 2871 of 2016

(Delivered by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the
claimants have challenged the judgment
and order dated 03.05.2016 passed by
Motor
Accident
Claims
Tribunal/Additional District & Sessions
Judge, Court No.11, Ghaziabad (hereinafter
referred to as ''Tribunal') in M.A.C.P. No.
111 of 2015 awarding sum of Rs.3,08,000/-
as compensation to the claimants with
interest at the rate of 7% per annum.

2. Heard Mr. Alok Kumar Singh,
learned counsel for the appellants and Mr.
Ramanuj Pandey, learned counsel for the
respondents. Perused the record.

3. The accident is not in dispute. The
Uttar
Pradesh
State
Road
Transport
Corporation (in short "U.P.S.R.T.C.") has
not challenged the liability fastened on it.
In this case, Tribunal has fixed 20%
contributory negligence of the deceased.

4. The claimants-appellants filed
Motor Accident Claim Petition against the
U.P.S.R.T.C. with the facts that on
17.01.2012 deceased Devkidas was going
to his work place at 6:30 AM. When he
crossed by-pass road and reached the other
side, a U.P.S.R.T.C. bus came from the
side of Delhi bearing No. U.P. 84 F 9208,
which was being driven in a very rash and
negligent manner by its driver, which hit
the deceased from behind. The deceased
sustained fatal injuries and died on the spot.

5. The U.P.S.R.T.C.-respondent in its
written statement admitted the factum of
accident but contended that deceased was
himself negligent. He all of sudden came in
front of the bus by jumping the divider.
Accident could have been avoided if the
deceased would have not been so negligent.

6. Learned counsel for the appellants
has submitted that deceased was not
negligent in accident. It is also submitted
that at the time of accident, the deceased
had already crossed the road and the driver
of the bus hit him on the side of the road by
rash and negligent driving.

7. Per contra, learned counsel for the
U.P.S.R.T.C. has submitted that on the
basis of evidence on record, it is
established that deceased was crossing the
road at the place which was not ment for
crossing and all of sudden, he came in front
of the bus due to his own negligence.
Learned counsel for the respondents has
also submitted that the judgment and order
passed by Tribunal also does not suffer
from any such infirmity or illegality which
may call for any interference by this court.

8. The term negligence means failure
to exercise care towards others which a
reasonable and prudent person would in a
1 All. Smt. Usha & Ors. Vs. U.P.S.R.T.C. & Anr.
621
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.

9. 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.

10. 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
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
622 INDIAN LAW REPORTS ALLAHABAD SERIES
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, 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 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."

11. The Apex Court in Khenyei Vs.
New India Assurance Company Limited &
Others, 2015 LawSuit (SC) 469 has held as
under:

"4. It is a case of composite
negligence where injuries have been
caused to the claimants by combined
wrongful act of joint tort feasors. In a case
of accident caused by negligence of joint
tort feasors, all the persons who aid or
counsel or direct or join in committal of a
wrongful act, are liable. In such case, the
liability is always joint and several. The
extent of negligence of joint tort feasors in
such a case is immaterial for satisfaction of
the claim of the plaintiff/claimant and need
not be determined by the by the court.
However, in case all the joint tort feasors
are before the court, it may determine the
extent of their liability for the purpose of
adjusting inter-se equities between them at
appropriate stage. The liability of each and
1 All. Smt. Usha & Ors. Vs. U.P.S.R.T.C. & Anr.
623
every joint tort feasor vis a vis to
plaintiff/claimant cannot be bifurcated as it
is joint and several liability. In the case of
composite negligence, apportionment of
compensation between tort feasors for
making payment to the plaintiff is not
permissible as the plaintiff/claimant has the
right to recover the entire amount from the
easiest targets/solvent defendant.

12. In this regard, we have perused
the evidence regarding the contributory
negligence on record. Learned Tribunal
after threadbare perusing the evidence, has
opined that Investigating Officer has
prepared site plan during the course of
investigation, which shows that at the place
of occurrence, there was divider in the
middle of road and there was no cut in the
divider. It means that the deceased came in
front of the bus after jumping on the
divider. On the basis of evidence on record,
learned Tribunal fixed 20% contributory
negligence of the deceased and held that
driver of the bus in question, was negligent
to the extent of 80% only.

13. We are in full agreement with the
finding of learned Tribunal on the point of
negligence.

14. The issue to be decided is, the
quantum of compensation awarded by the
Tribunal. The facts except for deciding
compensation are not being narrated.

15. Learned counsel for the appellants
has submitted that learned Tribunal has
fixed the income of the deceased as
Rs.36,000/- per annum, while the deceased
used to earn much more because he was a
mechanic in a factory. It is next submitted
that
income
of
the
deceased
was
Rs.2,40,000/- per annum. Perusal of record
shows that there is no plausible,
acceptable and documentary evidence to
prove the income of the deceased so as to
accept the submission of learned counsel
for the appellants that deceased be held to
be earning Rs.2,40,000/- per annum as no
income tax return is also filed. On the basis
of evidence on record, it is clear that
deceased was working in a factory, hence,
keeping in view the above fact, the income
of the deceased may be fixed as Rs.5,000/-
per month (Rs.5,000 X 12 = 60,000 per
annum) in the absence of any documentary
or plausible evidence. Hence, the annual
income of deceased is fixed as Rs.60,000/-
per annum.

16. It is also submitted by learned
counsel for the appellant that learned
Tribunal has not given compensation under
the head of future prospects. The age of the
deceased was 40 years, hence in the light of
the judgment of the Apex Court in Sarla
Verma and Others Vs. Delhi Transport
Corporation and Another, 2009 LawSuit
(SC) 613 and National Insurance Co. Ltd.
Vs. Pranay Sethi and Others, 2017
LawSuit (SC) 1093, due to being self
employed and being of 40 years of age,
40% shall be added towards future
prospects to the income of the deceased as
per the aforesaid decision being self
employed.

17. As far as the dependency is
concerned, there are five dependents.
Learned Tribunal has deducted 1/3rd of the
income of the deceased for personal
expenses which requires reassessment.
Keeping in view the number of dependents,
1⁄4th shall be deducted for personal
expenses. Learned Tribunal has applied
multiplier of 15 for which there is no
dispute. The deceased was 40 years of age.
624 INDIAN LAW REPORTS ALLAHABAD SERIES
Under the non pecuniary head, claimantsappellants
shall
be
entitled
to
get
Rs.15,000/-
for
loss
of
estate
and
Rs.15,000/- for funeral expenses. Apart
from it, wife of the deceased shall also be
entitled to get Rs.40,000/- for loss of
consortium. In this way, claimants shall get
Rs.70,000/-
under
the
head
of non
pecuniary damages with increase of 10%
for every three years as per the judgment of
Apex Court in Pranay Sethi (Supra).

18. Hence, the total compensation
payable to the appellants are computed
herein below:

(i) Annual income Rs.60,000/-
Per annum.

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

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

(iv) Income after deduction of
1⁄4th : Rs.63,000/-

(v) Multiplier applicable : 15

(vi)
Loss
of
dependency
:
Rs.63,000 X 15 = 09,45,000/-

(vii)
Amount
under
non
pecuniary head : Rs.70,000/- + 21,000/- =
91,000/-

(viii)
Total
compensation
:
Rs.09,45,000/- + 91,000/- = Rs. 10,36,000/-

(ix)Amount after 20% deduction
towards
contributory
negligence
:
Rs.10,36,000
-
02,07,200/-
=
Rs.
08,28,800/-

19. 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."

20. Learned Tribunal has awarded
rate of interest as 7% per annum but we are

21. No other grounds are argued
orally when the matter was heard.

22. 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
respondentU.P.S.R.T.C. 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.

23. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 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
1 All. Smt. Bhoori & Ors. Vs. Ashraf & Anr.
625
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.
----------
(2022)01ILR A625
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.3097 of 2007

Smt. Bhoori & Ors. ...Appellants
Versus
Ashraf & Anr. ...Respondents

Counsel for the Appellants:
Sri Abhai Saxena, Sri Krishna Kumar Singh,
Sri Mohd. Asim Zulfiquar

Counsel for the Respondents:
Sri S.C. Srivastava

A. Civil Law - Motor Vehicle Act, 1988Section
176-Enhancement
of
compensation-deceased was 40 years of
age and he was serving with Northern
Indian Railway Mandal as a gang-manTribunal dismissed the claim petition for
compensation- the deceased was the
sole bread-earner and was earning Rs.
8,850/-per month- the Annual income
would be Rs 96,000/- and By applying the
multiplier
of
15,
the
total
loss
of
dependency is assessed Rs. 15,09000/-
Thus,
the
claimants
entitled
for
compensation of a sum of Rs. 15,09000/-
with
rate
of
interest
@
7.5%
per
annum.(Paras 1 to 15)

The appeal is partly allowed.(E-6)

List of Cases cited:

1. Anita Sharma & ors. Vs The New India Assr.
Co. Ltd. & anr., (2021) 1 SCC 171

2. Sunita & ors Vs R.S.R.T.C. & Anr. (2019) 1
T.A.C. SC

3. Mangla Ram Vs Oriental Ins. Co. Ltd. & ors
(2018) 4 Supreme 525

4. Bithika Mazumdar Vs Sagar Pal (2017) 2 SCC
748

5. Sarla Verma & ors. Vs D.T.C. & anr. (2009)
Lawsuit SC 613

6. National Ins. Com. Ltd. Vs Pranay Sethi &
ors. (2017) LawSuit SC 1093

7. National Ins. Co. Ltd. Vs Mannat Johal & ors.
(2019) 2 T.A.C. 705 SC

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

9. Smt. Sudesna & ors. Vs Hari Singh & anr.
FAFO No . 23 of 2001

10. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Ins. Co. Ltd, FAFO No. 2871 of 2016

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