# U.P.S.R.T.C. Lucknow v. Mohd. Kasim Faruki & Ors

- **Citation:** (2020) 1 ILRA 256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-21
- **Case number:** First Appeal From Order No. 74 of 2007
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-lucknow-v-mohd-kasim-faruki-ors-45682
- **Pages:** 6

## Headnote

A. Motor Accident Act, 1988 - Civil
Procedure Code - Order 41 Rule 33 -
Enhancement of compensation - Plea of
enhancement by claimant in appeal of
owner - No appeal or cross objection for
enhancement of compensation - Appeal
filed by owner challenging only the
findings of the Tribunal recorded in
regard to the accident - The appellant
cannot be put to a loss by dismissing the
appeal and enhancing the compensation
which would amount to put a premium on
non-action of the claimant-respondents
when they were satisfied with the award
passed by the Tribunal. (Para 14)

B. Constitution of India - Article 142 -
Exercise of power - Distinction between
power of Supreme Court and High Court -
In case of Jitendra Khimshankar Trivedi,
Apex court enhanced the compensation
exercising the jurisdiction under Article
142 of the Constitution of India which
cannot be done by this court - Power to
do complete justice is conferred on Apex
1 All. U.P.S.R.T.C. Lucknow Vs. Mohd. Kasim Faruki & Ors.
257
Court and the High Court does not have
such powers. (Para 16)

First Appeal From Order dismissed. (E-1)

List of cases cited :-

## Text

256 INDIAN LAW REPORTS ALLAHABAD SERIES
possession or use when called upon to do
so by that another person by notice in
writing, duly served upon him, by the date
specified in the notice.

13. In the instant case, the offence of
criminal trespass as defined in the first part
of section 441 I.P.C. is not made out
because admittedly the petitioner has not
entered into or upon property of another
person but is in possession of his own
property as an owner thereof. Likewise, no
offence would be made out under the
second part because the petitioner does not
retain possession or maintain use of the
property of another. Indisputably, the
petitioner is the owner and in possession
of Plot No. 918. He has not entered into or
upon property in possession of another
person. Under the circumstances, even if
the petitioner raises constructions, which
may be unauthorized, he would not be
liable for an offence of criminal trespass
punishable under section 447 I.P.C.

14. It may be noticed that the land
pertaining to plot no.918 in the revenue
records is recorded in the name of Radhika
Green Homes Pvt. Ltd. whose Director is
the petitioner. Otherwise also, it is not the
case of the informant that plot No.918 is
the land of the Authority unlawfully
occupied or possessed by the accused.
Under the circumstances, the essential
ingredients of an offence punishable under
section 447 IPC are not made out.

15. Consequently, the writ petition is
allowed. The impugned first information
report is quashed. The quashing of the first
information
report
shall
be
without
prejudice to the rights of Greater Noida
Industrial Development Authority to take
recourse to such measures or such
proceedings against the petitioner in
respect
of
alleged
unauthorized
constructions raised by him, as the law
may permit. There is no order as to costs.
----------
(2020)1ILR 256

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.01.2020

BEFORE
THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 74 of 2007

U.P.S.R.T.C. Lucknow ...Appellant
Versus
Mohd. Kasim Faruki & Ors. ...Respondents

Counsel for the Appellant:
Prabhakar Tewari, Akhter Abbas, J.B.
Singh

Counsel for the Respondents:
Mohd. Airaj Siddiqui, Pradeep Kumar Singh

A. Motor Accident Act, 1988 - Civil
Procedure Code - Order 41 Rule 33 -
Enhancement of compensation - Plea of
enhancement by claimant in appeal of
owner - No appeal or cross objection for
enhancement of compensation - Appeal
filed by owner challenging only the
findings of the Tribunal recorded in
regard to the accident - The appellant
cannot be put to a loss by dismissing the
appeal and enhancing the compensation
which would amount to put a premium on
non-action of the claimant-respondents
when they were satisfied with the award
passed by the Tribunal. (Para 14)

B. Constitution of India - Article 142 -
Exercise of power - Distinction between
power of Supreme Court and High Court -
In case of Jitendra Khimshankar Trivedi,
Apex court enhanced the compensation
exercising the jurisdiction under Article
142 of the Constitution of India which
cannot be done by this court - Power to
do complete justice is conferred on Apex
1 All. U.P.S.R.T.C. Lucknow Vs. Mohd. Kasim Faruki & Ors.
257
Court and the High Court does not have
such powers. (Para 16)

First Appeal From Order dismissed. (E-1)

List of cases cited :-

1. Jitendra Khimshanker Trivedi and others
Versus
Kasam
Daud
Kumbhar
and
others;2015(1) T.A.C. 673 (S.C.)

2. Ranjana Prakash and others Versus The
Divisional Manager and another (Civil Appeal
No.6110 of 2011);2011 (7) SCC 6
3. Dulcina Fernandes & Others Vs. Joaquim
Xavier Cruz & Another; (2013) 10 SCC 646
4. Ranjana Prakash and others Versus The
Divisional Manager and another (Supra)
5. C.M.Singh Versus H.P.Krishi Vishva Vidyalaya
& others; (1999) 9 SCC 40

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri Akhter Abbas, learned
counsel for the appellant and Shri
M.A.Siddiqui, learned counsel for the
respondents.

2. This First Appeal From Order has
emanated from the judgment and award
dated 25.09.2006 passed by the Motor
Accident Claims Tribunal/Special Judge
(E.C.Act), Lucknow in Claim Petition
No.295/2005:Mohd.Kasim
Faruki
and
others Versus U.P.State Road Transport
Corporation
awarding
a
sum
of
Rs.1,64,500/- together with 6% interest
from the date of filing of claim petition.

3. The brief facts of the case giving
rise to the present appeal are that on
17.02.2003 at about 9.45 in the morning
Roadways Bus No.UP-40C-0902 was
coming out of the bus stand at Kaiserbagh
Bus Stand, Lucknow and its conductor
was calling the passengers for Bahraich.
The brother of deceased Km. Bushra @
Muwashisra raised voice to stop the bus on
which the bus stopped. While the deceased
was climbing on the bus, the driver moved
the bus forward with jerks, therefore the
deceased came under the rear wheels of
the bus. The deceased suffered serious
injuries. She was immediately admitted in
Blarampur Hospital, Lucknow where she
died after 8 hours. Therefore the claim
petition was filed claiming compensation
claiming therein that the deceased was
doing the work of stitching of dress of
school children.

4. The claim petition was contested
by the appellant alleging therein that no
accident had taken place from the bus in
question. However, the Roadways Bus
No.UP-40C-0902 i.e. the bus in question
had gone to Bahraich from Lucknow at
about 10 in the morning and reached
Bahraich at about 1 p.m.

5. On the basis of pleadings of the
parties four issues were framed. After
evidence the claim petition has been partly
allowed and an amount of Rs.1,64,500/-
has
been
awarded
as
compensation
alongwith interest at the rate of 6% per
annum from the date of filing of the claim
petition to be paid to the claimantsrespondents as per apportionment given in
the judgment.

6. Submission of the learned counsel
for the appellant was that neither any
accident had occurred with the bus of the
appellant nor any negligence was found on
the part of the driver of the bus in
question. The bus was neither challaned by
the police nor stopped by the public on the
place of accident, therefore the occurrence
of accident was not proved. But the
learned Tribunal discarding the evidence
258 INDIAN LAW REPORTS ALLAHABAD SERIES
adduced on behalf of the appellant has
wrongly and illegally allowed the claim
petition without any cogent reason. He
accordingly prayed for setting aside the
impugned
judgment
and
award
and
allowing the appeal.

7. Per contra, learned counsel for the
respondents submitted that the accident
was proved by the claimant-respondents
by adducing cogent evidence and the
evidence filed by the appellant in regard to
the accident has rightly been discarded by
the learned Tribunal as it is not believable.

8. He has further submitted that the
learned Tribunal has not awarded just
compensation therefore the same is liable
to be enhanced. The deceased was aged
about 20 years at the time of accident on
17.02.2003, therefore, the multiplier of 18
in place of 16 should have been applied.
The respondents are also entitled for the
future prospects and enhancement of the
amounts towards the conventional heads.
He had also submitted that the notional
income of the deceased should have been
assessed as Rs.3,000/- per month in place
of Rs.1500/- per month as the deceased
was doing the work of stitching of School
dress. He submitted that though the
respondents could not file any appeal or
cross objection for enhancement but this
court while hearing the appeal of the
appellant can enhance the amount of
compensation in view of the judgment of
the Hon'ble Apex Court in the case of
Jitendra Khimshanker Trivedi and
others Versus Kasam Daud Kumbhar
and others;2015(1) T.A.C. 673 (S.C.).

9. In reply to the plea of
enhancement of the respondents learned
counsel for the appellant submitted that
since the respondents have not filed any
appeal or cross objection for enhancement
and the present appeal has been filed only
challenging
alleged
occurrence
of
accident, therefore this court may not
enhance the compensation. If the amount
of compensation is enhanced without any
appeal or cross objection by the claimantrespondents,
the
filing
of
appeal
challenging the occurrence of alleged
accident would put the appellant in loss
because on the one hand his claim that the
accident has not occurred from the bus in
question is not accepted and on the other
hand the amount of compensation, which
has been accepted by the respondents, is
enhanced.
Learned
counsel
for
the
appellant in this regard has relied on a
judgment of the Hon'ble Apex Court in the
case of Ranjana Prakash and others
Versus The Divisional Manager and
another
(Civil
Appeal
No.6110
of
2011);2011 (7) SCC 6. Lastly the learned
counsel for the appellant had submitted
that if the submissions of learned counsel
for the respondents in regard to the
enhancement
is
accepted
then
the
deduction of 1/2 is liable to be made in
place of 1/3rd as the deceased was
bachelor at the time of death and only the
mother could have been treated as
dependent.

10.

I
have
considered
the
submissions of learned counsel for the
parties and perused the record.

11. The deceased Km.Bushra @
Muwashisra had died in an accident on
17.02.2003 at about 9.45 a.m. in the
morning by Roadways Bus No.UP-40C0902 as the driver of the bus had started
the bus with jerks while the deceased was
climbing on the bus. The deceased had
suffered serious injuries, therefore, she
was admitted in Balrampur Hospital where
1 All. U.P.S.R.T.C. Lucknow Vs. Mohd. Kasim Faruki & Ors.
259
she had died after 8 hours of the accident.
The accident was proved by the P.W.1 and
P.W.2
examined
on
behalf
of
the
claimant/respondents. The appellant could
not
ellicit
anything
in
the
cross
examination which could create any doubt
about the testimony of the witnesses and
the accident.

12. Perusal of the record also
indicates that the First Information Report
vide case Crime No.73 of 2003 under
Section 279/304-A IPC was lodged on
17.02.2003 i.e. on the same day at 6.10 in
the evening at Police Station Wazirganj
Sadar,
District
Lucknow.
After
investigation the charge sheet was filed
against the driver of the bus in question on
27.02.2003 on which the cognizance was
taken by the court concerned. The Hon'ble
Apex Court in the case of Dulcina
Fernandes & Others Vs. Joaquim
Xavier Cruz & Another; (2013) 10 SCC
646 has examined the situation where the
evidence of eyewitness was discarded by
the tribunal and that the respondent in that
case was acquitted in the criminal case
concerning the accident. However, the
Hon'ble Apex Court opined that it can not
be overlooked that upon investigation of
the case, registered against respondent,
prima facie, materials showing negligence
were found to put him on trial.

13. The learned Tribunal has also
considering the evidence on record has
recorded a categorical finding that the
accident had occurred on account of the
negligence of the driver of bus no.UP40C-0902. The deceased had died on
account of the serious injuries suffered in
the accident. On due consideration of the
submissions and evidence on record this
court is in agreement with the findings
recorded by the learned Tribunal in regard
to the accident by the bus of the appellant
and does not find any illegality or error in
it. The appeal is misconceived and lacks
merit and is liable to be dismissed.

14. Adverting to the plea of
enhancement of compensation raised by
learned counsel for the respondents,
admittedly the claimant-respondents have
not filed any appeal or cross objection for
enhancement of compensation because it
appears that the claimant-respondents were
satisfied with the compensation awarded
by the learned Tribunal as per law
prevalent at the relevant time, while they
had filed a caveat. This appeal has been
filed challenging only the findings of the
Tribunal recorded in regard to the accident
on the ground that the accident had not
occurred by the bus in question and the
amount of compensation has not been
challenged. Therefore, this court is of the
view that the appellant cannot be put to a
loss by dismissing the appeal and
enhancing the compensation which would
amount to put a premium on non action of
the claimant-respondents when they were
satisfied with the award passed by the
Tribunal.

15. The Hon'ble Apex Court in the
case of Ranjana Prakash and others
Versus The Divisional Manager and
another (Supra) has held that in an appeal
by the owner/insurer, the claimants will
not be entitled to seek enhancement of the
compensation by urging any new ground,
in the absence of any cross-appeal or
cross-objections. The Apex Court has also
held that the Provisions of Order 41 Rule
33 of the Code of Civil Procedure cannot
be invoked to get a larger or higher relief
and the High Court cannot increase the
compensation in an appeal by the
owner/insurer. However the Hon'ble Apex
260 INDIAN LAW REPORTS ALLAHABAD SERIES
Court has held that the respondentsclaimants can defend the compensation
awarded by the Claims Tribunal on other
grounds. The relevant paragraphs 6, 7 and
8 are extracted below:-

"6. We are of the view that High
Court committed an error in ignoring the
contention of the claimants. It is true that
the claimants had not challenged the
award of the Tribunal on the ground that
the Tribunal had failed to take note of
future prospects and add 30% to the
annual income of the deceased.

But the claimants were not
aggrieved by Rs.23,134/- being taken as
the monthly income. There was therefore
no need for them to challenge the award of
the Tribunal. But where in an appeal filed
by the owner/insurer, if the High Court
proposes to reduce the compensation
awarded by the Tribunal, the claimants
can certainly defend the quantum of
compensation awarded by the Tribunal, by
pointing out other errors or omissions in
the award, which if taken note of, would
show that there was no need to reduce the
amount
awarded
as
compensation.
Therefore,
in
an
appeal
by
the
owner/insurer, the appellant can certainly
put forth a contention that if 30% is to be
deducted from the income for whatsoever
reason, 30% should also be added towards
future prospects, so that the compensation
awarded is not reduced. The fact that
claimants did not independently challenge
the award will not therefore come in the
way of their defending the compensation
awarded, on other grounds. It would only
mean
that
in
an
appeal
by
the
owner/insurer, the claimants will not be
entitled to seek enhancement of the
compensation by urging any new ground,
in the absence of any cross-appeal or
cross-objections.

7. This principle also flows from
Order 41 Rule 33 of the Code of Civil
Procedure which enables an appellate
court to pass any order which ought to
have been passed by the trial court and to
make such further or other order as the
case may require, even if the respondent
had not filed any appeal or crossobjections. This power is entrusted to the
appellate court to enable it to do complete
justice between the parties. Order 41 Rule
33 of the Code can however be pressed
into service to make the award more
effective or maintain the award on other
grounds or to make the other parties to
litigation to share the benefits or the
liability, but cannot be invoked to get a
larger or higher relief. For example,
where the claimants seeks compensation
against the owner and the insurer of the
vehicle and the Tribunal makes the award
only against the owner, on an appeal by
the owner challenging the quantum, the
appellate court can make the insurer
jointly and severally liable to pay the
compensation, along with the owner, even
though the claimants had not challenged
the non-grant of relief against the insurer.
Be that as it may.

8. Where an appeal is filed
challenging the quantum of compensation,
irrespective of who files the appeal, the
appropriate course for the High Court is to
examine the facts and by applying the relevant
principles, determine the just compensation. If
the compensation determined by it is higher
than the compensation awarded by the
Tribunal, the High Court will allow the appeal,
if it is by the claimants and dismiss the appeal, if
it is by the owner/insurer. Similarly, if the
compensation determined by the High Court is
lesser than the compensation awarded by the
Tribunal, the High Court will dismiss any
appeal by the claimants for enhancement, but
allow any appeal by owner/insurer for
1 All. M/S R.N. Tandon & Sons Vs. Betwa River Board
261
reduction. The High Court cannot obviously
increase the compensation in an appeal by
owner/insurer for reducing the compensation,
nor can it reduce the compensation in an
appeal by the claimants seeking enhancement
of compensation."

16. So far as the judgment relied by the
learned counsel for the claimant-respondents in
the case of Jitendra Khimshankar Trivedi
and others Versus Kasam Daud Kumbhar
and others (Supra) is concerned, in the said
case the Hon'ble Apex court has enhanced the
compensation exercising the jurisdiction under
Article 142 of the Constitution of India which
cannot be done by this court. The Hon'ble Apex
Court in the case of C.M.Singh Versus
H.P.Krishi Vishva Vidyalaya & others;
(1999) 9 SCC 40, has held that power to do
complete justice is conferred on it and the High
Court does not have such powers.

17. The appeal is, accordingly,
dismissed. No order as to costs.

18. The lower Court record and the
amount deposited before this court, if any,
shall be remitted to the concerned tribunal.
----------
(2020)1ILR 261

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2019

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

First Appeal From Order No. 108 of 1991

M/S R.N. Tandon & Sons ...Appellants
Versus
Betwa River Board ...Respondent

Counsel for the Appellants:
Sri Ayush Khanna, Sri Atul Dayal, Sri N.
Sinha, Sri S.C. Budhwar, Sri S.P. Gupta,
Sri Avanish Srivastava

Counsel for the Respondent:
Sri U.N. Sharma, Sri A.K. Rai

A. Arbitration Conciliation Act, 1940 -
Section 30 and 33 - Terms of contract -
Importance - Award of the arbitrator is in
consonance with clause 8 and 9 of the
contract, which does not speak about
payment of interest - Arbitrator gave
cogent reasons holding that no interest
was payable - Judgment of the District
Court reversing the arbitral award is bad
in the eye of law - Held, Appellants are
entitled to the refund of the interest
deducted. (Para 20 & 21)
First Appeal From Order allowed. (E-1)
List of cases cited :-
1. K.Marappan (Dead) Versus Superintending
Engineer T.B.P.H.L.C. Circle Anantapur, 2019
JX(SC) 391
2. Raveechee and Company Versus Union of
India, AIR 2018 SC 3109
3. Puri Construction Pvt. Limited Versus Union
of India, AIR 1989 SC 777
4. State of Orissa Versus B.N. Agarwalla ,
(1997) 2 SCC 469
5. FCI Versus Joginderpal Mohinderpal, (1989)
2 SCC 347
6. First Appeal From Order No.714 of 2005,
State of U.P. and other Vs. J.M. Construction
Company, decided on 11.4.2019
7. K.P. Poulose v. State of Kerala & Anr.,
reported in [1975] 2 SCC 236
8. Hind Builders Vs. Union of India, (1990) 3
SCC 338
9. Dandasi Sahu Versus State of Orissa, (1990)
1 SCC 214
10. Thawer Das Vs. Union of India, AIR 1955
SC 468