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

- **Citation:** (2023) 3 ILRA 18
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-24
- **Case number:** First Appeal From Order No. 1001 of 1993
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-anr-v-smt-bhagwati-ors-49944
- **Pages:** 6

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Section - 173, - Civil Procedure Code, 1908
- Order 41 Rule 17: - Appeals - challenging
the Award - Accident - Corporation assailed the
award on ground i.e. contributory negligence -
quantum of compensation - appreciation of
evidence - deceased died due to sustained
injuries in accident - accident caused by the
rash and negligent driving of the driver of a bus
of UPSRTC when bus hit the scooter of
deceased - res ipsa loquitur - court finds that,
bus driver was driving bigger vehicle, he should
have been more vigilant - scooterist was riding
the scooter on its correct side - evidence
adduced by the appellant did not show that the
driver of bus was driving the vehicle causational
- as such finding of tribunal on the issue of
contributory negligence are upheld.
(Para - 9, 13)

(B) Civil Law- Motor Vehicles Act, 1988 -
Section - 173 - Civil Procedure Code,1908
- Order 41 Rule 17 - Appeals - challenging the
Award - Accident - Corporation assailed the
award on the ground the parents (legal
representative) of the deceased do not come
within the definition of family - maintainability of
claim petition - since, the claim petition was
filed in year 1990 and accident was took placed
on 30.10.1989 namely after the new Act, 1989
was came into force - the issue of legal heirs are
no longer res intergra in view of decision of
Hon'ble Apex court in case of Smt. Manjuri Bera
VS Orinetal Insurance Company Ltd. - the plea
that,
claimants
are
not
entitled
for
compensation, cannot be accepted as they are
legal representatives of the deceased - claim
petition maintainable.
(Para - 14, 15)

(C) ) Civil Law - Motor Vehicles Act, 1988
- Section - 173, - Civil Procedure Code,
1908 - Order 41 Rule 17: - Appeals -
3 All. U.P.S.R.T.C. & Anr. Vs. Smt. Bhagwati & Ors.
19
challenging the Award - Accident - Corporation
assailed the award also on the ground that
incorrect multiplier was applied by the learned
tribunal
-
quantum
of
compensation
-
appreciation of evidence - age of deceased was
30 and he left behind him his young widow,
parents
and
unmarried
sister
who
were
dependent on him - as such in place of 15
multiplier would be 17 - court finds that, the
compensation awarded by the tribunal is not
sufficient - however, since steps in the appeal
were not taken for more than 30 years -
therefore, appeal stands dismissed under order
41 Rule 11 of the CPC. (Para - 16, 17)

Appeal Dismissed. (E-11)

List of Cases cited: -

## Text

18 INDIAN LAW REPORTS ALLAHABAD SERIES
set up with an intention to befool or
defraud the court to get the order of
dismissal of the appeal in the default set
aside, the court should not come in aid to
such a party to allow him to reap the fruits
of false and frivolous explanation to get the
order of dismissal of the appeal in default
set aside. The present case is one such case
since
in
the
said
case,
the
plaintiffs/appellants had approached the
court under Order 41 Rule 17 of C.P.C. on
the ground which is false on the face of the
record.

32. In such view of the fact, this Court
does not find any illegality in the order
passed by the court below in rejecting the
application
of
the
plaintiffs/appellants
under Order 41 Rule 17 of C.P.C.

33. So far as the judgement of this
Court in Atar Singh (supra) relied upon by
the
learned
counsel
for
the
plaintiffs/appellants is concerned, the said
judgement is not applicable in the facts of
the
present
case
inasmuch
as
the
plaintiffs/appellants had not approached the
court with clean hand in filing the
application under Order 41 Rule 17 of
C.P.C.

34. For the reasons given above, the
appeal lacks merit and is hereby dismissed
with no order as to costs.
----------
(2023) 3 ILRA 18
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2023

BEFORE

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

First Appeal From Order No. 1001 of 1993
U.P.S.R.T.C. & Anr. ...Applicants
Versus
Smt. Bhagwati & Ors. ...Respondents

Counsel for the Applicants:
Sri Sunil Kumar

Counsel for the Respondents:

(A) Civil Law - Motor Vehicles Act, 1988 -
Section - 173, - Civil Procedure Code, 1908
- Order 41 Rule 17: - Appeals - challenging
the Award - Accident - Corporation assailed the
award on ground i.e. contributory negligence -
quantum of compensation - appreciation of
evidence - deceased died due to sustained
injuries in accident - accident caused by the
rash and negligent driving of the driver of a bus
of UPSRTC when bus hit the scooter of
deceased - res ipsa loquitur - court finds that,
bus driver was driving bigger vehicle, he should
have been more vigilant - scooterist was riding
the scooter on its correct side - evidence
adduced by the appellant did not show that the
driver of bus was driving the vehicle causational
- as such finding of tribunal on the issue of
contributory negligence are upheld.
(Para - 9, 13)

(B) Civil Law- Motor Vehicles Act, 1988 -
Section - 173 - Civil Procedure Code,1908
- Order 41 Rule 17 - Appeals - challenging the
Award - Accident - Corporation assailed the
award on the ground the parents (legal
representative) of the deceased do not come
within the definition of family - maintainability of
claim petition - since, the claim petition was
filed in year 1990 and accident was took placed
on 30.10.1989 namely after the new Act, 1989
was came into force - the issue of legal heirs are
no longer res intergra in view of decision of
Hon'ble Apex court in case of Smt. Manjuri Bera
VS Orinetal Insurance Company Ltd. - the plea
that,
claimants
are
not
entitled
for
compensation, cannot be accepted as they are
legal representatives of the deceased - claim
petition maintainable.
(Para - 14, 15)

(C) ) Civil Law - Motor Vehicles Act, 1988
- Section - 173, - Civil Procedure Code,
1908 - Order 41 Rule 17: - Appeals -
3 All. U.P.S.R.T.C. & Anr. Vs. Smt. Bhagwati & Ors.
19
challenging the Award - Accident - Corporation
assailed the award also on the ground that
incorrect multiplier was applied by the learned
tribunal
-
quantum
of
compensation
-
appreciation of evidence - age of deceased was
30 and he left behind him his young widow,
parents
and
unmarried
sister
who
were
dependent on him - as such in place of 15
multiplier would be 17 - court finds that, the
compensation awarded by the tribunal is not
sufficient - however, since steps in the appeal
were not taken for more than 30 years -
therefore, appeal stands dismissed under order
41 Rule 11 of the CPC. (Para - 16, 17)

Appeal Dismissed. (E-11)

List of Cases cited: -

1. UPSRTC Vs Km. Mamta & ors. (AIR 2016 SC
948),

2. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. (FAFO No. 1818/2012
decided on dated 19.07.2016),

3. Smt. Manjuria Bera Vs Oriental Insurance Co.
Ltd. (AIR 2007 SC 1474),

4. National Insurance Co. Ltd. Lucknow Vs
Lavkush & Another (FAFO No. 199/2017
decided on Dt. 21.03.2017),

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

1. This appeal, at the behest of
U.P.S.R.T.C. challenges the judgment and
award dated 28.5.1993 passed by IXth
Additional District Judge/ Motor Accident
Claims Tribunal, Kanpur Nagar in Claim
Petition No. 55 of 1990 whereby the
learned
Tribunal
has
awarded
Rs.
1,65,000/- as compensation with interest at
the rate of 12% per annum with a direction
upon the appellant herein to pay the above.

2. Heard Sri Sunil Kumar, learned
counsel for the appellant. For a period of
from 1993 till today, steps have not been
taken to see that notices be served to the
respondents.

3. Be that as it may, as 20 years have
elapsed, this Court deems it fit to decide
this appeal where the Court had granted
stay vide order dated 30.9.1993 which
reads as follows :

"Issue notice.

Till further orders, operation of
impugned award dated 28.5.1993 passed
by Motor Accident Claims Tribunal,
Kanpur Nagar, will remain stayed, subject
to appellants' depositing Rs. 1,65,000/-
minus the amount, which has already been
deposited by the appellants in this Court.

Half of the amount may be
withdrawn
by
the
claimants
without
furnishing security and the balance may be
withdrawn
subject
to
the
furnishing
adequate security to the satisfaction of the
Tribunal."

4. Brief facts as culled out from the
record are that deceased-Nitin Kumar who
was aged about 30 years and was working
as a Clerk in U.P. Bidi Agency, met with an
accident on 30.10.1989 at about 10.30 a.m.
He was hit by Bus No. U.H.J. 8106 owned
by U.P.S.R.T.C. while he was going on his
scooter No. UMF-3643. He was with
another employee namely Magal Bhai Patel
who was pillion rider on the said scooter.
The bus was being driven rashly and
negligently. The deceased died out of said
vehicular accident. The claimants are the
legal heirs of the deceased. The claim
petition filed by the claimants were
contested
by
the
defendant.
The
U.P.S.R.T.C. had filed its reply contending
that its bus was not involved in the
accident. The Tribunal had framed five
issues and decided the same in favour of
20 INDIAN LAW REPORTS ALLAHABAD SERIES
the claimants and against the appellantherein.

5. The grounds urged are that the
vehicle owned by U.P.S.R.T.C. was not
involved in the accident and in the
alternative, even if it was involved, it was
the scooterist who was negligent and,
therefore, no liability can be fastened on
the U.P.S.R.T.C. In the other alternative
argument, it is submitted that it is a case of
contributory negligence and, therefore,
holding that the driver of the bus was
negligent is against the record.

6. It is further submitted by learned
counsel for the appellant that the parents of
the deceased do not come within the
definition of family and, therefore, the
claim was not maintainable. It is further
submitted that the deceased was 30 years of
age and was newly married and, therefore,
multiplier of 15 have been illegally granted
and it should have been 7 or 8. There
should have been lump sum deduction to
the tune of 1/3rd and not 1/6th, therefore,
on that count also the impugned award is
bad. The award of non pecuniary damages
is also bad.

7. The Apex Court in UPSRTC Vs.
Km. Mamta and others, reported in AIR
2016 SC 948, has held that all the issues
raised in the memo of appeal required to be
addressed and decided by the first appellate
court.

8. While dealing with submission on
issue of negligence raised by the learned
counsel for the appellant, it would be
relevant to discuss the principles for
deciding contributory negligence and for
that
the
principles
for
considering
negligence will also have to be looked
into.

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 though
it 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 is
co author of the accident would be liable
for his contribution to the accident having
taken place and that amount will be
deducted from the compensation payable to
him if he is injured and to legal
representatives if he dies in the accident.

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
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,
3 All. U.P.S.R.T.C. & Anr. Vs. Smt. Bhagwati & Ors.
21
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 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

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
22 INDIAN LAW REPORTS ALLAHABAD SERIES
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

12. The Tribunal while deciding the
issue of negligence has held as under :

"I
have
also
perused
the
panchayatnama and the map prepared
by the I.O. and have gone through the
files summoned. It has come in the
evidence
that
although
the
driver
applied breaks but could not succeed in
averting the accident because the bus
was running at a very fast speed. Since,
there was a turn at a place of incident,
it was the duty of the driver to take
more
care
and
remains
slow. As
indicated above, there were no horns
and thus, considering all the facts and
circumstances, I am of the opinion that
the petitioners have successfully proved
that the accident in question took place
because of rash and negligent driving
of bus No. UHJ 8106 and the driver
(deceased) of Scooter of UMF 3634 was
not
guilty
of
any
contributory
negligence."

13. Looking to the factual averments,
the principle for deciding negligence has
been properly evaluated. The evidence
adduced by the appellant did not show that
the driver of the bus was driving the
vehicle cautiously. The Tribunal while
deciding the issue of negligence has held
that as deceased was on his scooter and the
bus driver was driving the bigger vehicle,
the bus driver should have been more
vigilant. The evidence of witnesses have
also supported the case of claimants. While
going through the judgment impugned, it is
clear that the scooterist was riding the
scooter on its correct side and the driver of
the bus being the driver of bigger vehicle
should have taken proper care which he had
not done. Hence, the finding of the Tribunal
as far as negligence is concerned cannot be
interfered with.

14. This takes this Court to the other
issues. As far as legal heirs are concerned,
this issue is no longer res integra in view of
the decision in Smt. Manjuri Bera Vs.
Oriental Insurance Company, Limited,
AIR 2007 SC 1474. The said decision has
been relied upon by this Court in FIRST
APPEAL FROM ORDER No. - 199 of
2017,
National
Insurance
Company
Limited, Lucknow Vs. Lavkush and
another decided on 21.3.2017.

15. The Claim Petition was filed in the
year 1990. The accident took place on
30.10.1989 namely after the new Act, of
1989 came into force, hence, the said
submission that the claimants are not
entitled for compensation, cannot be
accepted as they are legal representatives of
the deceased.
3 All. M/s Tanishka International, Rampur U.P. Vs. State of U.P. & Ors.
23

16. As far as compensation part is
concerned, the Tribunal has considered
the case of the deceased and has granted
compensation
of
Rs.1,65,000/-
with
interest at the rate of 12%. The Tribunal
while awarding the above compensation
has
considered
the
income of
the
deceased to be Rs. 10,800/- per month,
applied multiplier of 15, deduction 1/6th
for
life
uncertainties
and
granted
Rs.30,000/- under non pecuniary heads.
The Tribunal accepted that the deceased
was 30 years of age and left behind him
his young widow, parents and unmarried
sister who were dependent on him. In the
year of accident i.e. 1989, the multiplier
would be 17. Rather the Tribunal has not
added any amount towards future loss of
income. In all, it can be said that the
compensation awarded by the Tribunal is
on the lower side. However, grant of 12%
interest would be sufficient as it is
submitted that only sum of Rs. 1,65,000/-
without interest has been deposited. The
U.P.S.R.T.C. to deposit the amount within
12 weeks from today. Interim relief stands
vacated forthwith.

17. In view of the above, this appeal
stands dismissed under Order 41 Rule 11 of
the Code of Civil Procedure, 1908 as
though notices were ordered, steps were not
taken for more than 30 years.

18. This Court is thankful to Sri Sunil
Kumar, learned counsel for the appellant
for getting this old matter disposed of.
----------
(2023) 3 ILRA 23
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.01.2023

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Writ Tax No. 847 of 2022

M/s Tanishka International, Rampur U.P.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram M. Kaushik, Sri Pranjal Shukla, Ms.
Priyanka Midha

Counsel for the Respondents:
Sri Ankur Agarwal, Standing Counsel

Civil Law - Central Goods and Service Tax
Rules, 2017-For initiation of proceedings-a
notice u/Rule 142(1A) was not issued-which
provided for communication of details of any
tax, interest and penalties as ascertainedsubsequent reminder will not cure inherent
defect in proceedings-impugned order quashedliberty to initiate frsh inquiry.
W.P. allowed. (E-9)
List of Cases cited:

1. Gulati Enterprises Vs Central Board of Indirect
Taxes and Customs & ors., 2022 U.P.T.C. (Vol.
111) - 1271

2. M/s Skyline Automation Industries Vs St. of
U.P. & anr., Writ Tax No.1512 of 2022
(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. Challenge in the present writ petition is
to the order dated February 23, 2021 (DRC-07)
Annexure-2 to the writ petition passed by
respondent No.2 under Section 74(9) of the
Central Goods and Service Tax Act, 2017
(hereinafter referred to as the "Act").

2. The argument raised by the learned
counsel for the petitioner is that in terms of