# U.P.S.R.T.C v. Smt. Neerja Bhatiya & Ors

- **Citation:** (2023) 8 ILRA 792
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-04
- **Case number:** First Appeal from Order No. 1726 of 2001
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-v-smt-neerja-bhatiya-ors-50594
- **Pages:** 9

## Headnote

A. Civil Law-Motor Vehicles Act,1988Section
173-Challenge
to-award
of
compensation-Tribunal did not grant any
amount under the head of future loss of
income though the deceased was a
salaried
person-the
income
of
the
deceased looking to his profession can be
considered to be Rs.23,803/- per monthTo which, 25% to be added towards
future
loss
of
income-The
deduction
towards
personal
expenses
of
the
deceased would be 1/3rd as the deceased
was 47 years of age in view of the
decision of the Apex Court in Pranay
Sethi- The deceased being 47 years of
age, the multiplier applicable would be 13
in view of the decision in Sarla Verma-As
far as amount under the head of non
pecuniary
damages
are
concerned,
Rs.70,000/- is granted-Hence, the total
compensation

Rs.31,64,390/-the
claimants would be entitled to 6% rate of
interest on the enhanced compensation
from the date of filing the claim petition
till the amount is deposited-The rate of
interest granted by the Tribunal on
originally awarded amount is maintained.
(Para 1 to 28)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

792 INDIAN LAW REPORTS ALLAHABAD SERIES
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount within a period of 8 weeks from
today with interest as directed above. The
amount already deposited be deducted from
the amount to be deposited.

17. If the Oriental Insurance Company
deposit the entire amount, they would be
entitled to recover 60% amount from the owner,
driver and the Insurance Company of the bus,
who have failed to appear before this Court.

18. Record and proceedings be sent back
to the Tribunal forthwith. The amount be paid to
the claimants and no amount be kept in fixed
deposit.

19. 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 is not passed
because applicants /claimants are neither
illiterate or rustic villagers.

20. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of Smt.
Hansaguri 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. The said decision
has also been reiterated by High Court Gujarat
in R/Special Civil Application No.4800 of 2021
(The Oriental Insurance Co. Ltd. v. Chief
Commissioner of Income Tax (TDS) decided
on 5.4.2022.

21. 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
judgment of A.V. Padma (supra). The same is to
be applied looking to the facts of each case.

22. The Tribunal shall follow the
guidelines issued by the Apex Court in Bajaj
Allianz General Insurance Company Private
Ltd. v. Union of India and others vide order
dated 27.1.2022, as the purpose of keeping
compensation is to safeguard the interest of the
claimants. As long period has elapsed, the
amount be deposited in the Saving Account of
claimants in Nationalized Bank without F.D.R.
----------
(2023) 8 ILRA 792
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2023

BEFORE

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

First Appeal from Order No. 1726 of 2001

U.P.S.R.T.C. ...Appellant
Versus
Smt. Neerja Bhatiya & Ors. ...Respondents
8 All. U.P.S.R.T.C. Vs. Smt. Neerja Bhatiya & Ors.
793
Counsel for the Appellant:
Sri Sunil Kumar Misra, Sri Samir Sharma,Sri Ram
Singh

Counsel for the Respondents:
Sri Ansar Ahmad, Sri Kashi Naresh Mishra, Sri
Rajneesh Tripathi, Sri V.B. Kesarwani, Ms.
Tanisha Jahangir Monir

A. Civil Law-Motor Vehicles Act,1988Section
173-Challenge
to-award
of
compensation-Tribunal did not grant any
amount under the head of future loss of
income though the deceased was a
salaried
person-the
income
of
the
deceased looking to his profession can be
considered to be Rs.23,803/- per monthTo which, 25% to be added towards
future
loss
of
income-The
deduction
towards
personal
expenses
of
the
deceased would be 1/3rd as the deceased
was 47 years of age in view of the
decision of the Apex Court in Pranay
Sethi- The deceased being 47 years of
age, the multiplier applicable would be 13
in view of the decision in Sarla Verma-As
far as amount under the head of non
pecuniary
damages
are
concerned,
Rs.70,000/- is granted-Hence, the total
compensation

Rs.31,64,390/-the
claimants would be entitled to 6% rate of
interest on the enhanced compensation
from the date of filing the claim petition
till the amount is deposited-The rate of
interest granted by the Tribunal on
originally awarded amount is maintained.
(Para 1 to 28)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Gobald Motor Services Ltd. & anr. Vs R.M.K.
Velusamy (1962) SCR 1 929

2. National Ins. Co. Vs Pranay Sethi (2014) 4
TAC 637 SC

3. Smt. Sarla Verma Vs DTC (2009) 2 TAC 677
SC

4. UPSRTC Vs Km. Mamta & ors. (2016) AIR SC
948
5. Deepal Girishbhai Soni & ors. Vs United India
Ins. Co. Ltd Baroda (2004) AIR SC 2017

6. Bajaj Allianz Gen. Ins. Co.Ltd. Vs Smt. Renu
Singh & ors. FAFO No. 1818 of 2012

7. Ram Dev Singh Vs Chudasma Vs Hans Raj
Bhai Kodalo (1999) 2 TAC-331.

8. The New India Assc. Co. Ltd Vs Rukshana
Khatoon & ors. FAFO No. 3096 of 2004

9. National Ins. Co. Ltd. Vs Smt. Vidyawati Devi
& 2 Ors FAFO No. 2389 of 2016

10. Gen. Mgr., Ker. S.R.T.C Vs Susamma Thomas
(1994) SCC (2) 176

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

1. Heard Sri Sunil Kumar Misra,
learned counsel for appellant and Sri
Rajneesh Tripathi, learned counsel for the
claimants. None has appeared for corespondent.

2. By way of this appeal, the
UPSRTC has felt aggrieved by the
judgment and decree dated 20.8.2001
passed by the Motor Accident Claims
Tribunal/ XI Additional District Judge,
Bulandshahar whereby the respondent-
claimants No. 1 to 3 had preferred
M.A.C.T. Case No. 95 of 1999 claiming
compensation for the death of sole
breadwinner. The parties are referred as
claimants- and appellants- UPSRTC. The
tribunal granted a sum of Rs.24,85,012/-
with interest at the rate of 9%.

3. At the outset in view of the
Judgment of Apex Court in UPSRTC Vs.
Km. Mamta and others, reported in AIR
2016 SC 948, all the issues which are
raised before the appellate court must be
decided.
794 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The facts as they unfurl from the
judgment and record appears that the
claimants had preferred the claim petition
for damages but inadvertently in caption
mentioned petition under Section 163A of
the Motor Vehicles Act, 1988 as was
mentioned in the caption of the claim
petition. The other averments and claim
petition was preferred under Section 166 of
Motor Vehicles Act, 1988 ( hereinafter
referred to as 'Act, 1988').

5. The claimants are the legal
representatives of the deceased - Rakesh
Chandra who died in the vehicular
accident.
Rakesh
Chandra
Bhatia,
according to claimants was a senior
assistant engineer posted in Harduaganj
Power Station, Kashimpur, District Aligarh
under the U.P. State Electricity Department.
This monthly income when the accident
occurred was Rs.23,803/- per month. He
was survived by his widow and two
daughters.

6. The accident took place on 28.1.1999
at 1:30 p.m. at National Highway in the
vicinity of village Sikandarabad, just ahead of
Idgah between Sikandarabad and Dadari in
the district of Bulandshahar. The deceased
was in fiat car No. DL-2 C-3693 which met
with the bus belonging to UPSRTC bearing
No. U.G.U.7161. It is averred that the before
the deceased breath his last he had sustained
multiple accidental injury. The deceased was
moved to Sikandarabad Government Hospital
where he was declared dead. The deceased
succumbed
to
the
accidental
injuries
sustained during the accident. The claimants
claimed that they were legal representatives
of the deceased as one was widow and two
and three were his children ( daughter).

7. The claimants claimed a sum of
Rs.31,29,500/-. The deceased along with
the claimants was going from Aligarh to
Delhi in his fiat car No. DL-2 C-3693 the
parents of the deceased later on were
impleaded
as
proforma
parties
as
opponents. The parents have supported the
claim of the petitioner and have also
claimed
their
share.
The
appellantUPSRTC filed reply through its Regional
Manager denying the claims made in
paragraph no. 1 to 10 of the claim petition,
they admitted the averment made in
paragraph no. 11, 12 and 13 but again as far
as paragraph no.13 and 14 the appellant did
not admit as the appellant had no
knowledge about the said facts.

8. In the additional reply it is
contended by appellants that the claimants
are not entitled to get any amount. The
appellants pleaded mis-joinder of the
parties. The appellants have even denied
the factum of manner in which the accident
occurred. It is stated that there was rain on
the said date. Para 13 of the reply when
translated it states that the accident is
accepted but the car when it reached the
place of occurrence tired to overtake one
other vehicle and that is how it came and
dashed the bus and, therefore, it is averred
that the the deceased was totally negligent
whereas the driver of the bus was skilled
driver and there was no negligence in
driving on his part. It was averred that the
insurance company of the car having not
been made party, the claim petition
required to be dismissed.

9. The parties led evidence and the
Tribunal though the petition was captioned
to under Section 163A of the Motor
Vehicles Act, 1988 treated it to be under
Section 166 of Motor Vehicles Act, 1988
which is culled out from the issues raised
by the Tribunal. The Tribunal raised five
issues first was regarding negligence in
8 All. U.P.S.R.T.C. Vs. Smt. Neerja Bhatiya & Ors.
795
driving by the drivers involved in the
accident. The second issue raised was
whether the deceased died out of injuries
caused in the accident. The third issue was
whether the claim petition was bad for non
joinder of the owner and the insurance
company of fiat car D.L.2 C-3693 and
whether the claimants were entitled to any
amount or not and lastly the issue no. 5
related to proving as to whether the
respondents- appellants herein was liable to
pay compensation or not and how much.

10. The Tribunal considered the claim
petition as if it was under Section 166 of
Motor Vehicles Act,1988 the reason being
as far as issue no. 1 is concerned, it decided
the issue of negligence which under
Section 163A of Motor Vehicles Act, 1988
is not required to be decided as parties led
evidence to that effect. As far as issue no. 5
is concerned, the Tribunal has considered
the salary as Rs.23803/- per month and has
considered the income also as per Section
166 of the Act, 1988 and not as stipulated
under Section 163A of the Motor Vehicles
Act, 1988. From the record it is culled out
that when the issues were framed the
appellant herein did not raise any objection
to the matter being considered as one under
Section 166 of Motor Vehicles Act, 1988.
The Act is a beneficial piece of legislation
just because of misnomer in heading it
cannot be detrimental to the widow and
minor daughters.

11. While admitting this appeal, this
Court directed the issuance of notice. From
2001 till 2003 no steps had been taken to
see that the respondents are served. The
appellants herein were directed to deposit a
sum of Rs.15,00,000/- with the claims
Tribunal within three weeks and the
respondent no.1 was entitled to withdraw
Rs.5,00,000/-.
This
order
is
dated
26.11.2001 and we are in the year 2023
today. The challenge to the issues on the
basis of judgment of Deepal Girishbhai
Soni and Ors. Vs. United India Insurance
Company Limited, Baroda, AIR 2004 SC
2017 is also not raised before the Tribunal.

12. The UPSRTC preferred the appeal
before the Apex Court against the interim
order. The said appeal before the Apex
Court came to be decided on 15.7.2002,
twenty one years thereafter deciding this
appeal.

13. Even in the grounds of challenge
against the award of tribunal the UPSRTC
has contended in one ground that the
petition was under Section 163A not under
Section 166 of the Motor Vehicles Act,
1988. The parties before the Tribunal and
this Court have accepted the fact that the
Tribunal had considered the matter under
Section 166 of the Act when it decided
what is known as the issue of negligence.
As far as the issue of compensation is
concerned the amount under the IInd
Schedule it is not argued that maximum
amount admissible where claim could be
filed if maximum income of deceased was
Rs.40,000/- per month as the income of the
deceased. The IInd Schedule is not
applicable to the fatal cases. Section 163A
of the Motor Vehicles Act, 1988 which read
as under :

"163A. Special provisions as to
payment of compensation on structured
formula basis.-

(1)Notwithstanding
anything
contained in this Act or in any other law for
the time being in force or instrument having
the force of law, the owner of the motor
vehicle or the authorised insurer shall be
liable to pay in the case of death or
permanent disablement due to accident
796 INDIAN LAW REPORTS ALLAHABAD SERIES
arising out of the use of motor vehicle,
compensation, as indicated in the Second
Schedule, to the legal heirs or the victim, as
the case may be. Explanation.-For the
purposes of this sub-section, "permanent
disability" shall have the same meaning
and
extent
as
in
the
Workmen's
Compensation Act, 1923 (8 of 1923).

(2)In any claim for compensation
under sub-section (1), the claimant shall
not be required to plead or establish that
the death or permanent disablement in
respect of which the claim has been made
was due to any wrongful act or neglect or
default of the owner of the vehicle or
vehicles concerned or of any other person.

(3)The Central Government may,
keeping in view the cost of living by
notification in the Official Gazette, from
time to time amend the Second Schedule.]"

14. In that view of the matter when
the parties have accepted both before the
Tribunal and also before this Court that the
the claim petition was to be decided as per
provision of Section 166 of Motor Vehicles
Act, 1988 no such ground can now be
raised before this Court that it was a
petition under Section 163A of the Act. The
mention of Section was only in the
caption that it was petition under Section
163A that it was mentioned as under
Section 163A of the Act. In the pleadings
before Tribunal and even in the reply by
the appellant it is not objected that the
issues were wrongly framed and the
issues are required to be recast. Thus the
appellant herein with full knowledge had
contested the litigation even before the
Apex Court nor before this Court and
though it is raised as a ground in the
memo of appeal, therefore, this Court
would also decide this litigation as it was
under Section 166 of the Motor Vehicles
Act, 1988.

15. The grounds of objection raised as
grounds no. 1 to 7 to the award reads as
follows

"1. Because, the Corporation bus was
being driven at a moderate speed with due
care and caution and the view taken by the
claims
tribunal
to
the
contrary
is
erroneous.

2. Because, the accident had taken
place solely due to the rash and negligent
driving of the fiat car no. DL 2C/3693
being driven by the deceased Sri Rakesh
Chandra Bhatiya, hence the Corporation
was not liable to pay any compensation.

3. Because the Claims Tribunal placed
undue emphasis on the evidence adduced
on behalf of the claimants and is not fully
appreciating the evidence adduced on
behalf of the Corporation.

4. Because, the evidence adduced on
behalf of the claimant by Smt. Neerja
Bhatiya PW-1 ( claimant herself ) was not
trust worthy as she was a highly interested
witness and the Claims Tribunal erred in
placing undue reliance on the same.

5. Because, the evidence adduced on
behalf of the Corporation by Gajraj Singh
D.W.-1 ( driver of the Corporation bus) and
Sangam Lal ( conductor of the bus) were
most trust worthy and the Claims Tribunal
erred in not relying on the same.

6. Because, in the facts and the
circumstances of the case it was evident
that the deceased rashly and negligently
had tried to over take another vehicle
without taking into account that the
Corporation bus was being coming from
the opposite direction and as such despite
beset efforts of the Corporation bus driver
to avert the accident, yet the accident was
caused.

7. Because, in the facts and the
circumstances of the case, the Claims
Tribunal clearly erred in taking the view
8 All. U.P.S.R.T.C. Vs. Smt. Neerja Bhatiya & Ors.
797
that even if the fiat car had suddenly tried
to over take a vehicle, yet it was the
responsibility of the heavier on coming
vehicle to be cautious so as to avoid the
accident.."

16. In ground no. 12 for the first time
it is averred as follows :

'12. Because, the Claims Tribunal
erred in awarding compensation under
Section 163A of the Motor Vehicle Act,
1988, wherein the Tribunal went beyond
the maximum income as provided under the
second schedule appended to Section 163A
to the Act, while taking the annual income
of the deceased as Rs.2,85,636 per year. '

17. This ground is not available to the
appellant and the judgments relied by the
appellant would not apply to the facts of
this case once the appellants have contested
litigation as a litigation under Section 166
of the Motor Vehicles Act. It was only
passing heading in the memo of claim
petition that the wrong section was
mentioned, the Section of 166 of the Motor
Vehicles Act that the parties were well
aware that the matter was to proceed as the
petition under Section 166 of the Motor
Vehicles Act. Even before the Apex Court it
was never raised as an issue, hence the said
ground fails and is rejected.

Decision on issue of Negligence

18. 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.

19. 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.

20. 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
798 INDIAN LAW REPORTS ALLAHABAD SERIES
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 toMotor
Vehicle Actcontain 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 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 byFatal
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 underFatal
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).
8 All. U.P.S.R.T.C. Vs. Smt. Neerja Bhatiya & Ors.
799

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."

21. Tribunal while deciding the issue
of negligence has categorically given its
finding on issue no.1 in favour of the
claimants. The finding of facts is very clear
that the bus dashed with fiat car on the right
side. The instantaneous death goes to show
that the Tribunal has not committed any
error in holding that the driver of bus was
the sole author of the accident. The
witnesses have categorically mentioned
that the driver of bus was driving the bus
during mansoon in rash and negligent
manner. However, this statement of PW-1,
driver has been categorically refuted by the
version of PW-1 that on that date there was
no rain. The accident between two vehicles
of unequal magnitude goes to show the bus
dashed with fiat car and, therefore, the
finding of fact cannot be found fault with.

22. As far as the question of
considering the case under Section 163A of
Motor Vehicles Act, 1988, the parties had
to with open eyes when the issues were
framed. Had the respondent - appellant
herein objected immediately after the issues
were framed. The claimant could have
amended the heading as per the judgment
of Hon'ble Gujrat High Court in Ram Dev
Singh Vs. Chudasma Vs. Hans Raj Bhai
Kodalo, 1999 (2) TAC-331. Thus the
grounds raised based of judgment of
Deepal Girishbhai Soni and Ors. Vs.
United India Insurance Company Limited,
Baroda, AIR 2004 SC 2017 will not apply
to the facts of this case. Hence, the grounds
no. 12, 13, 14, and 15 could not have been
pressed into service. This is nothing else
but after thought. The said grounds are
raised for the first time before this Court.
The judgment of this Court in First Appeal
From Order No. 3096 of 2004 (The New
India Assurance Company Limited Vs.
Rukshana Khatoon and others) decided
on 3.5.2019 wherein a similar view is taken
will enure for the benefit of claimants.

23. This takes this Court to the
compensation awarded by the Tribunal, the
Tribunal did not grant any amount under
the head of future loss of income though
the deceased was a salaried person. The
income of the deceased was Rs.23,803/-
per month and which is proved by
cogent evidence. The Tribunal has
deducted
1/3rd
towards
personal
expenses and granted multiplier of 13 as
the deceased was 47 years of age. The
Tribunal has granted Rs.35000/- under
the head of non pecuniary damages. It is
contended by counsel for claimants that
as per the decision of this Court in
F.A.F.O. No.2389 of 2016 (National
Insurance Co. Ltd. Vs. Smt. Vidyawati
Devi And 2 Others) decided on
27.7.2016 and the judgment of Apex
Court in General Manager, Kerala
S.R.T.C Versus Susamma Thomas, 1994
SCC (2) 176 .

24. The Appellate Court must grant
just compensation even in absence of
written cross objection by claimants. The
Tribunal was under an obligation to grant
what is known as future loss of income
which has not been granted in view of the
judgment of Gobald Motor Services Ltd.
and another v. R.M.K. Velusamy, 1962
SCR (1) 929. Thus, it can be said that the
Tribunal
has
erred
in
granting
compensation nor the compensation is on
the higher side.
800 INDIAN LAW REPORTS ALLAHABAD SERIES

25. Having heard learned counsel for
the parties, the income of the deceased
looking to his profession can be considered
to be Rs.23,803/- per month. To which,
25% to be added towards future loss of
income. The deduction towards personal
expenses of the deceased would be 1/3rd as
the deceased was 47 years of age in view of
the decision of the Apex Court in National
Insurance Company Limited Vs. Pranay
Sethi and Others, 2017 0 Supreme (SC)
1050 . The deceased being 47 years of age,
the multiplier applicable would be 13 in
view of the decision in Sarla Verma Vs.
Delhi Transport Corporation, (2009) 6
SCC 121. As far as amount under the head
of non pecuniary damages are concerned,
Rs.70,000/- is granted.

26. Hence, the total compensation
payable to the appellants is computed
herein below:

i. Income per annum : Rs.23803 x 12
= 2,85,636/-

ii. Percentage towards future prospects
: 25% namely Rs.71,409/-

iii. Total income : Rs.2,85,636 +
71,409 = Rs.3,57,045/-

iv. Income after deduction of 1/3
towards personal expenses : Rs.36,000-

v. Multiplier applicable : 13

vi. Loss of dependency: Rs.2,38,030 x
13 = Rs.30,94,390/-

vii. Amount under non pecuniary
heads : Rs.70,000/- /-

viii.
Total
compensation
:
Rs.31,64,390/-

27. As far as issue of rate of interest is
concerned, the claimants would be entitled
to 6% rate of interest on the enhanced
compensation from the date of filing the
claim petition till the amount is deposited.
The rate of interest granted by the Tribunal
on
originally
awarded
amount
is
maintained.

28. In view of the above, the appeal
sans merits and is dismissed. The oral cross
objection is allowed as per the judgment of
this Court passed in F.A.F.O. No.2389 of
2016 (National Insurance Co. Ltd. Vs.
Smt. Vidyawati Devi And 2 Others)
decided on 27.7.2016. The earlier amount
be paid to the claimants after ascertaining
their identity as more than 20 years have
elapsed from the date of filing of this
appeal.

29. Interim relief shall stand vacated
forthwith. The record of the Tribunal be
sent back forthwith.
----------
(2023) 8 ILRA 800
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal from Order No. 2367 of 2013

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Sri Yamin & Ors. ...Respondents

Counsel for the Appellant:
Sri Brijesh Chandra Naik

Counsel for the Respondents:
Sri Nigamendra Shukla, Sri Ashok Kumar Singh,
Sri Rohit Nandan Pandey

A. Civil Law-Workmen's Compensation
Act,
1923-Section
30,
4(1)(a)-
Commissioner has awarded compensation
of Rs.301034/- with 1% rate of interestChallenge against- The death happened
during the course of employment and
arose out of employment of the deceased