# U.P.S.R.T.C v. Smt. Gudia Devi & Ors

- **Citation:** (2016) 7 ILRA 158
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-05
- **Bench:** Krishna Murari, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-v-smt-gudia-devi-ors-43997
- **Pages:** 7

## Text

158 INDIAN LAW REPORTS ALLAHABAD SERIES

12. We may record that the Full Bench of the Court in the case of Raeesul Hasan (supra) was
considering the issue as to what would be the date on which a candidate must be considered to have completed
five years of service for being eligible for promotion on the post of lecturer under the Rules, 1998. The Full
Bench to answer the said question as follows:-

"For these reasons, we answer the reference by holding that it is not the date on which the
vacancy has occurred, but the year of recruitment which is relevant for the determination of eligibility for
promotion to the Lecturers' grade under the Rules of 1998."

13. It will be seen that the Full Bench has held that the first date of the year of the recruitment is
relevant for the determination of eligibility for promotion to the post of Lecturers' grade under the Rules, 1998.

14. What would be the first date of the year of recruitment has been settled by a number of Division
Benches of this Court in the case of Subhash Prasad vs. Regional Selection Committee2, Poonam vs. State
of U.P. 3 and Vijai K. Singh vs. Joint Director of Education4,

15. In view of the law so declared, we have no hesitation to hold that the question which has been
answered by the Full Bench does not help the petitioner-appellant in the present appeal.

16. In the instant case, the petitioner was not even born in the feeding cadre on the date of occurrence
of the vacancy in the Lecturer grade on the first date of the year of the recruitment as the Rules 1998. The
petitioner can have no claim for consideration for promotion. There is no error in the judgment of the learned
Single Judge.

17. The appeal is dismissed.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2016

BEFORE

THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE PRASHANT KUMAR, J.

First Appeal From Order No.- 1910 Of 2016

U.P.S.R.T.C. ...Appellant
Versus
Smt. Gudia Devi & Ors. ...Respondents

Present appeal under Section 173 of the Motor Vehicles Act (for short the 'Act') has been filed by the
appellant-corporation challenging the judgment and award dated 24.02.2016 passed by the Motor Accident
Claims Tribunal/Additional District Judge, Court No. 1, Aligarh awarding a sum of Rs.8,75,500/- as
7 All. U.P.S.R.T.C. Vs Smt. Gudia Devi & Ors.

159
compensation on account of death of one Satish Kumar in an accident involving the bus of the appellantcorporation.

On the question of quantum, the Tribunal found that the salary of Rs.7,500/- per month as driver was
established by the salary certificate dated 13.08.2015 issued by the Principal of the college, which was duly
proved by him as P.W. 3. The Tribunal further awarded 50% towards future prospect in accordance with the
dictum of the Hon'ble Apex Court in the case of Reshma Kumari Vs. Madan Mohan, 2013 (2) TAC 369
(SC) and after deducting 1/4th towards personal expenses, determined the compensation of a sum of
Rs.12,15,000/- after applying the multiplier of 18 in accordance with the age of the deceased. 30% of the said
amount was deducted towards contributory negligence and, accordingly, the Tribunal determined a sum of
Rs.8,50,000/-. Tribunal further awarded a sum of Rs.5000/- towards funeral expenses, Rs.5000/- towards loss
of estate, Rs.10,000/- towards loss of love and affection and Rs.5000/- to the wife towards loss of consortium.

Court observed that Insofar as the determination of the compensation is concerned, court does not find any
illegality in the methodology adopted by the Tribunal in determining the same.

On the a perusal of the impugned award goes to show that only a sum of Rs.5000/- has been awarded
towards funeral expenses, Rs.5000/- towards loss of estate, Rs.10,000/- towards loss of love and affection
and Rs.5000/- towards loss of consortium. These amounts awarded by the Tribunal under non-pecuniary
heads, are extremely on the lower side.

Hon'ble Apex Court in the case of Rajesh & Ors. Vs. Rajbir Singh & Ors., (2013) 9 SCC 54 and
Kalpanaraj & Ors. Vs. Tamil Nadu State Transport Corporation, 2014(3) TAC 707(SC) held that
guiding principle for determining compensation is that it must be just and reasonable and the Court should
not succumb to niceties or technicalities, in such matters while considering the issue of award of
compensation under non-pecuniary damages such as loss of consortium, loss of love, care and guidance to
children and funeral expenses.

Court held that the claimant-respondents are entitled to be awarded a total sum of Rs.11,00,000/- as
compensation along with 7% simple interest from the date of making of the application till the date of actual
payment. The apportionment of the amount to be paid to the claimants under this order shall be made in the
same proportion as directed in the award passed by the Tribunal.

Accordingly, though the appeal filed by the appellant Insurance Company stands dismissed but the award
stands modified to the extent directed above.

(Delivered by Hon'ble Krishna Murari, J.
&
Hon'ble Prashant Kumar, J.)

1. This appeal under Section 173 of the Motor Vehicles Act (for short the 'Act') has been
filed by the appellant-corporation challenging the judgment and award dated 24.02.2016 passed by
the Motor Accident Claims Tribunal/Additional District Judge, Court No. 1, Aligarh awarding a
sum of Rs.8,75,500/- as compensation on account of death of one Satish Kumar in an accident
involving the bus of the appellant-corporation. Respondent-claimants filed a claim petition under
Section 140 read with Section 166 of the Act against the appellant-corporation claiming
compensation to the tune of Rs.19,75,000/-. According to the claimants, on 21.05.2014, Satish
Kumar along with his wife-claimant no. 1 and his friends, Sanju, Surendra and Bunty was
160 INDIAN LAW REPORTS ALLAHABAD SERIES

travelling to Aligarh by Indica car bearing registration no. HR 51 W 2390, at about 10.00 p.m.,
when they reached near Jain petrol pump at Atrauli-Aligarh road, the offending bus bearing
registration no. UP81 AF 2725, which was being driven rashly and negligently, all of a sudden
came on the wrong side and hit the car, which caused grievous injuries to all the occupants and
Satish Kumar died while undergoing treatment in J.N. Medical College, Aligarh. A First
Information Report was lodged at P.S. Harduaganj, which was registered as Case Crime No. 230 of
2014 under Sections 279, 338, 427, 304A IPC. It was further pleaded that the deceased was aged
about 23 years and was employed as a driver in J.P.S. Public School, Narauna and was earning
Rs.7,500/- per month.

2. The appellant-corporation and the driver of the bus contested the proceedings by filing
written statements denying the allegations. It was pleaded that driver after seeing that the car was
being driven rashly and negligently, stopped the bus, but the driver of the car could not control it
and dashed into the bus. On the basis of the evidence brought on record by the parties, the Tribunal
returned a finding that accident was a result of contributory negligence of the bus to the extent of
70% and that of the car to the extent of 30%.

3. The said finding has been recorded by the Tribunal after analysing the evidence of P.W.
2, Surendra Singh, who was travelling in the car along with deceased and also the driver of the
offending bus. On an analysis of the aforesaid two witnesses, the Tribunal arrived at the conclusion
that accident was caused due to contributory negligence of both the parties.

4. On the question of quantum, the Tribunal found that the salary of Rs.7,500/- per month
as driver was established by the salary certificate dated 13.08.2015 issued by the Principal of the
college, which was duly proved by him as P.W. 3. The Tribunal further awarded 50% towards
future prospect in accordance with the dictum of the Hon'ble Apex Court in the case of Reshma
Kumari Vs. Madan Mohan, 2013 (2) TAC 369 (SC) and after deducting 1/4th towards personal
expenses, determined the compensation of a sum of Rs.12,15,000/- after applying the multiplier of
18 in accordance with the age of the deceased. 30% of the said amount was deducted towards
contributory negligence and, accordingly, the Tribunal determined a sum of Rs.8,50,000/-. Tribunal
further awarded a sum of Rs.5000/- towards funeral expenses, Rs.5000/- towards loss of estate,
Rs.10,000/- towards loss of love and affection and Rs.5000/- to the wife towards loss of
consortium.

5. Insofar as the determination of the compensation is concerned, we do not find any
illegality in the methodology adopted by the Tribunal in determining the same.

6. Monthly income of Rs.7,500/- of the deceased was duly proved by the claimants by
filing the salary certificate and producing the Principal of the institution in the witness box to prove
the same. Award of 50% towards future prospect is also in accordance with the well established
principle laid down by the Hon'ble Apex Court in the case of Reshma Kumari (supra) and Munna
Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., 2015 (3) TAC 1 (SC). The age of the
deceased was found to be 25 years and, thus, the Tribunal has rightly applied the multiplier of 18
7 All. U.P.S.R.T.C. Vs Smt. Gudia Devi & Ors.

161
prescribed by the Hon'ble Apex Court in the case of Smt. Sarla Varma & Ors. Vs. Delhi
Transport Corporation & Anr, JT 2009 (6) SC 495.

7. There were three major dependants and two minor dependants, who were taken to be one
unit, as such, there were four dependants and, thus, the Tribunal rightly made deductions of 1/4th
towards personal expenses.

8. Thus, the methodology adopted by the Tribunal in determining the compensation is in
accordance with the well established principles settled down by the Hon'ble Apex Court and no
illegality is reflected therefrom, which may require any interference.

9. However, a perusal of the impugned award goes to show that only a sum of Rs.5000/-
has been awarded towards funeral expenses, Rs.5000/- towards loss of estate, Rs.10,000/- towards
loss of love and affection and Rs.5000/- towards loss of consortium. These amounts awarded by the
Tribunal under non-pecuniary heads, are extremely on the lower side.

10. Hon'ble Apex Court in the case of Rajesh & Ors. Vs. Rajbir Singh & Ors., (2013) 9
SCC 54 and Kalpanaraj & Ors. Vs. Tamil Nadu State Transport Corporation, 2014(3) TAC
707(SC) held that guiding principle for determining compensation is that it must be just and
reasonable and the Court should not succumb to niceties or technicalities, in such matters while
considering the issue of award of compensation under non-pecuniary damages such as loss of
consortium, loss of love, care and guidance to children and funeral expenses. It has been observed
in paragraph 17 as under :

"17. The ratio of a decision of this Court, on a legal issue is a precedent. But an
observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic
issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be
periodically revisited, as observed in Santosh Devi. We may therefore, revisit the practise of
awarding compensation under conventional heads: loss of consortium to thee spouse, loss of love,
care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 2500 to Rs.
10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same
needs to be increased. In Sarla Verma case, it was held that compensation for loss of consortium
should be in the range of Rs. 5000 to 10,000. In legal parlance. "consortium" is the right of the
spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations
with his or her mate. That non-pecuniary head of damages has not been properly understood by our
courts. The loss of companionship, love, care and protection. etc., the spouse is entitled to get, has
to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is
one of the major heads of award of compensation in other parts of the world more particularly in
the United State of America, Australia, etc. English courts have also recognized the right of a
spouse to get compensation even during the period of temporary disablement. By loss of
consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort,
solace, companionship, society, assistance, protection, care and sexual relations during the future
years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal
162 INDIAN LAW REPORTS ALLAHABAD SERIES

heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award
a major amount under this head. Hence, we are of the view that it would only be just and
reasonable that the courts awards at least rupees one lakh for loss of consortium."

11. Again in the case of Kalpanaraj and others (supra), Hon'ble Apex Court raised
compensation of Rs.30,000/- awarded towards loss of consortium and Rs.20,000/- towards loss of
love and affection of the minor children to Rs.1,00,000/- each under the said heads finding the sum
awarded to be on the lower side in the light of principles laid down in the case of Rajesh (supra).

12. In view of the aforesaid law laid down by the Hon'ble Apex Court, we feel that the
claimants are entitled to be awarded a sum of Rs.50,000/- towards funeral expenses, Rs.25,000/-
towards loss of estate, Rs. 50,000/- for minor children towards loss of love and affection and a sum
of Rs.1,00,000/- to the respondent-wife towards loss of consortium.

13. At this stage, learned counsel for the appellant vehemently contended that nonpecuniary damages have rightly been awarded in accordance with the Rule 220A of the Motor
Vehicle Rules and the two judgements of the Hon'ble Apex Court in the Rajesh (supra) and
Kalpanaraj (supra) are clearly distinguishable on the ground that they do not deal with a situation
where Rule has been framed by the State for determination of compensation. It is also submitted
that in an appeal filed by the Insurance Company, no order can be passed adverse to the appellant
by increasing the amount of compensation without there being any cross-appeal by the claimants.

14. In so far as the first submission of the learned counsel for the appellant in respect of
Rule 220A of the Motor Vehicles Rules is concerned, we do not find any reason to distinguish the
aforesaid two judgements of the Hon'ble Apex court on the ground that they do not deal with a
situation where Rule was framed by the State for determination of compensation. Hon'ble Apex
Court has clearly ruled that main guiding principle for determining the compensation is that it must
be just and reasonable and the court and tribunal are not required to frugal with regard to award
compensation towards funeral expenses and other non-pecuniary damages. The other argument
advanced by learned counsel for the appellant that amount of compensation cannot be increased in
an appeal filed by the Insurance Company in the absence of cross-appeal by the claimant, is also
without any force.

15. Order XLI Rule 33 of the Code of Civil Procedure prescribing the power of court of
appeal clearly provides that the Appellate Court shall have power to pass any decree and make any
order which ought to have been passed or made as the case may require, and this power may be
exercised in favour of all or any of the respondents or parties though they may not file any appeal
or objection. Order XLI Rule 33 of the Code reads as under :

"33. Power of Court of Appeal - The Appellate Court shall have power to pass any
decree and make any order which ought to have been passed or made and to pass or make such
further or other decree or order as the case may require, and this power may be exercised by the
Court notwithstanding that the appeal is as to part only of the decree and may be exercised in
7 All. U.P.S.R.T.C. Vs Smt. Gudia Devi & Ors.

163
favour of all or any of the respondents or parties, although such respondents or parties may not
have filed any appeal or objection [any may, where there have been decrees in cross-suits or where
two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees,
although an appeal may not have been filed against such decrees]

[Provided that the Appellate Court shall not make any order under Section 35A, in
pursuance of any objection on which the Court from whose decree the appeal is preferred has
omitted or refused to make such order.]"

16. The provisions of Order XLI Rule 33 C.P.C. was explained by the Hon'ble Apex Court
in the case of Mahant Dhangir Vs. Madan Mohan, AIR 1988 SC 54 in following words :

"The sweep of the power under Rule 33 is wide enough to determine any question
not only between the appellant and respondent, but also between respondent and co-respondents.
The appellate Court could pass any decree or order which ought to have been passed in the
circumstances of the case. The appellate court could also pass such other decree or order as the case
may require. The words "as the case may require" used in Rule 33 Order 41 have been put in wide
terms to enable the appellate Court to pass any order or decree to meet the ends of justice. What
then should be the constraint ? We do not find many. We are not giving any liberal interpretation.
The rule itself is liberal enough. The only constraint that we could see, may be these : That the
parties before the lower Court should be there before the appellate Court. The question raised must
properly arise out of the judgment of the lower Court. If these two requirements are there, the
appellate Court could consider any objection against any part of the judgment or decree of the
lower Court. It may be urged by any party to the appeal. It is true that the power of the appellate
Court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine
all questions urged in order to render complete justice between the parties. The Court should not
refuse to exercise that discretion on mere technicalities."

17. The same view has again been reiterated in a later decision by the Hon'ble Apex Court
in the case of Delhi Electric Supply Undertaking Vs. Basanti Devi, AIR 2000 SC 43.

18. We are of the considered view that the conditions as laid down in provisions of Order
XLI Rule 33 are satisfied in the present case. In Delhi Electric Supply Undertaking (supra) the
Hon'ble Apex Court has observed that when circumstances exist which necessitate the exercise of
discretion conferred by Rule 33, the court cannot be found wanting when it comes to exercise its
powers.

19. Thus, the argument in this regard made by the learned counsel for the appellant has no
legs to stand and is not liable to be sustained.

20. In view of above facts and discussions, we are of the considered opinion that the
claimant-respondents are entitled to be awarded a total sum of Rs.11,00,000/- as compensation
164 INDIAN LAW REPORTS ALLAHABAD SERIES

along with 7% simple interest from the date of making of the application till the date of actual
payment.

21. The apportionment of the amount to be paid to the claimants under this order shall be
made in the same proportion as directed in the award passed by the Tribunal.

22. Accordingly, though the appeal filed by the appellant Insurance Company stands
dismissed but the award stands modified to the extent directed above.

23. The Registry is directed to remit the statutory deposit made before this Court to the
Tribunal, which shall be liable to be adjusted towards the deposit to be made by the appellant.

24. However, in the facts and circumstances, we do not make any order as to costs.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.07.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 6119 Of 2003
&
Connected With Other Cases

Anand Kumar Shukla ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
Shiv Nath Singh, Murtuza Ali, Rajiv Lochan Shukla, Ravesh Kumar Singh, Yogesh Srivastava

Counsel for Respondent:
Govt. Advocate

Present appeals have been preferred by three appellants, namely, Anand Kumar Shukla, Smt. Kusum Lata @
Baby and Smt. Sharda Devi against the judgment and order of conviction dated 18.11.2003 passed by
Additional Sessions Judge, court no. VIII, Shahjahanpur in Sessions Trial No.199 of 2001, State Vs. Anand
Kumar Shukla and others, arising out of Case Crime No.494 of 2000, under Sections 302, 201 IPC, Police
Station Kotwali, District Shahjananpur, whereby each of the appellants has been sentenced to life
imprisonment and a fine of Rs.5000/- under Section 302/34 IPC. Similarly appellants have been sentenced to
three years rigorous imprisonment coupled with a fine of Rs.500/- each under Section 201 IPC and, in case of
default, in the above two offences, the concerned convicts shall have to suffer additional rigorous
imprisonment for one year and one month, respectively. Both the sentences shall run concurrently.