# U.P. State Road Transport Corporation v. Smt. Vineeta Verma & Ors

- **Citation:** (2016) 7 ILRA 573
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-13
- **Bench:** Krishna Murari, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-state-road-transport-corporation-v-smt-vineeta-verma-ors-44142
- **Pages:** 6

## Headnote

Appeal under Section 173 of the Motor Vehicles Act, 1988 against the award dated 05.03.2016 passed
by the Motor Accident Claims Tribunal awarding compensation for death in a motor accident.

Citation:
Section 166 & Section 173, Motor Vehicles Act, 1988;
Order XLI Rule 33, Code of Civil Procedure, 1908.

Headnotes:
Motor
accident-Death-Negligence-Credibility
of
eyewitness-Minor
contradictions-Effect-Income
assessment-Jewellery shop-Notional income-Non- pecuniary damages-Enhancement-Power of appellate
court-Exercise of powers under Order XLI Rule 33 CPC-No cross-appeal by claimants-Maintainability.
Minor omissions or contradictions in testimony of eyewitnesses do not discredit their evidence when the
occurrence and involvement of the offending vehicle stand proved. Presumption of notional income of a
deceased running a jewellery shop cannot be said to be excessive in the absence of documentary proof.
Compensation awarded under non-pecuniary heads must be just and reasonable and cannot remain static in
view of inflation. Appellate court is empowered under Order XLI Rule 33 CPC to enhance compensation even
in an appeal filed by the insurer, in the absence of a cross-appeal by the claimants, to do complete justice.

Case Law Discussed:
Rajesh and others v. Rajbir Singh and others, (2013) 9 SCC 54;
574 INDIAN LAW REPORTS ALLAHABAD SERIES

Kalpanaraj and others v. Tamil Nadu State Transport Corporation, 2014 (3) TAC 707 (SC);
Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54;
Delhi Electric Supply Undertaking v. Basanti Devi, AIR 2000 SC 43.

Result:
Appeal dismissed. Award modified by enhancing compensation to Rs. 8,37,000/- with 7% simple interest
from the date of application till actual payment. No order as to costs.

## Text

7 All. U.P. State Road Transport Corporation Vs Smt. Vineeta Verma & Ors.
573
4. It is also pertinent that when revisional court had quashed the summoning order dated
22.10.2014 passed against the applicants and remanded the matter before trial court, then in present
matter there remain no proceeding pending against the applicants, therefore they were not legally
obliged to appear in any court in absence of any proceeding against them. Therefore, the direction
of revisional court regarding command to applicants to appear in trial court is also erroneous and is
hereby quashed.

5. In view of the above this application is disposed of.
-----------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2016

BEFORE

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

First Appeal From Order No.- 2225 Of 2016

U.P. State Road Transport Corporation ...Appellant
Versus
Smt. Vineeta Verma & Ors. ...Respondents

Counsel for the Appellant:
Mritunjay Mohan Sahai

Procedure:
Appeal under Section 173 of the Motor Vehicles Act, 1988 against the award dated 05.03.2016 passed
by the Motor Accident Claims Tribunal awarding compensation for death in a motor accident.

Citation:
Section 166 & Section 173, Motor Vehicles Act, 1988;
Order XLI Rule 33, Code of Civil Procedure, 1908.

Headnotes:
Motor
accident-Death-Negligence-Credibility
of
eyewitness-Minor
contradictions-Effect-Income
assessment-Jewellery shop-Notional income-Non- pecuniary damages-Enhancement-Power of appellate
court-Exercise of powers under Order XLI Rule 33 CPC-No cross-appeal by claimants-Maintainability.
Minor omissions or contradictions in testimony of eyewitnesses do not discredit their evidence when the
occurrence and involvement of the offending vehicle stand proved. Presumption of notional income of a
deceased running a jewellery shop cannot be said to be excessive in the absence of documentary proof.
Compensation awarded under non-pecuniary heads must be just and reasonable and cannot remain static in
view of inflation. Appellate court is empowered under Order XLI Rule 33 CPC to enhance compensation even
in an appeal filed by the insurer, in the absence of a cross-appeal by the claimants, to do complete justice.

Case Law Discussed:
Rajesh and others v. Rajbir Singh and others, (2013) 9 SCC 54;
574 INDIAN LAW REPORTS ALLAHABAD SERIES

Kalpanaraj and others v. Tamil Nadu State Transport Corporation, 2014 (3) TAC 707 (SC);
Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54;
Delhi Electric Supply Undertaking v. Basanti Devi, AIR 2000 SC 43.

Result:
Appeal dismissed. Award modified by enhancing compensation to Rs. 8,37,000/- with 7% simple interest
from the date of application till actual payment. No order as to costs.

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

1. This appeal under Section 173 of the Motor Vehicles Act has been filed by the U. P.
State Road Transport Corporation challenging the award dated 05.03.2016 awarding a sum of
Rs.6,24,500/- as compensation on account of death of one Rajeev Kumar in an accident.

2. Claimants preferred an application under Section 166 of the Motor Vehicles Act, 1988
seeking compensation to the tune of Rs.26,00,000/- on the allegation that when Rajeev Kumar was
going along with his wife, (claimant no. 2) for treatment to Government hospital, BhogaonMainpuri at about 03 :00 PM he was hit by roadways bus bearing registeration no. UP 80-AB/9990.
It was further pleaded that he was admitted in district hospital, Mainpuri but on account of serious
injuries, he was referred to Agra and died in the way. It was also pleaded that deceased Rajeev
Kumar was 22 years old and was having a jewellery shop in Bhogaon and was earning Rs.10,000/-
per month.

3. Proceedings were contested by the appellant-Corporation by filing written statement
denying the allegations. It was pleaded that accident took place with some unknown vehicle and the
bus of the Corporation was wrongly involved in order to claim compensation.

4. Tribunal on the basis of the pleadings and evidence brought on record by the parties
returned a finding that accident was caused by offending bus. To arrive at the said finding, tribunal
relied upon the statement of P. W. '2', who was eye-witness of the accident. He proved the mode
and manner of the accident and his testimony was unshakable in cross-examination. On the
question of quantum, tribunal in the absence of any documents to establish the allegation that he
was earning Rs.10,000/- per month presumed the income from the Jewellery shop to be Rs.4,000/-
per month and looking into the age applied multiplier of 17 and after deducting 1/3rd towards
personal expenses, determined the dependency of Rs.6,12,000/-. Tribunal also awarded a sum of
Rs.2500/- towards funeral expenses, Rs.5000/- towards loss of estate and Rs.5000/- towards loss of
consortium. In this manner, a total sum of Rs.6,24,500/- was determined as compensation, payable
to the claimants.

5. Learned counsel for the appellant contends that there was contradiction in the statement
of two witnesses, namely, P. W. '1' and P. W. '2', thus, the finding of the tribunal is against the
7 All. U.P. State Road Transport Corporation Vs Smt. Vineeta Verma & Ors.
575
evidence on record. It is further pleaded that without there being any proof of income, presumption
of Rs.4500/- per month as earning from the Jewellery shop is on extremely higher side.

6. We have considered the arguments advanced by the learned counsel for the appellant
and perused the record.

7. From a perusal of the oral testimony of two witnesses filed on record, we do not find any
such material contradiction to discard the testimony. Learned counsel for the appellant vehemently
submitted that P. W. '1' in her statement stated that she also suffered injuries in the accident and
became unconscious whereas this fact has not been stated by P. W. '2' in his statement.

8. In our considered opinion, this is not such a material contradiction so as to disbelieve the
testimony. Both the witnesses have clearly stated that accident was caused by offending bus and
they witnessed the accident. The involvement of the offending bus in the accident stands
established by testimony of two witnesses and thus, even if P. W. '2' did not state about the injuries
suffered by claimant no. 1, wife of deceased, the omission is not sufficient to discard his testimony.

9. In such view of the matter, argument advanced by the learned counsel for the appellant
in this regard has no legs to stand and is not sustainable.

10. In so far as presumption of notional income of Rs.4500/- per month is concerned,
tribunal found that it was established by cogent evidence that deceased was running a jewellery
shop, the presumption of Rs.4500/- as income from the jewellery shop cannot be said to be on
higher side by any stretch of imagination when a daily labour in the present time earns more than
Rs.200/- per day. We do not find find income of Rs.4500/- from the jewellery shop to be on higher
side. Thus, this argument of the learned counsel for the appellant is also without any force.

11. On the contrary, from a perusal of the impugned award, we find that only a sum of
Rs.2500/- has been awarded towards funeral expenses, Rs.5000/- towards loss of estate and
Rs.5000/- towards loss of consortium. The amount awarded by the tribunal under the nonpecuniary head is on extremely lower side. Admittedly, the deceased was aged about 22 years and
the accident took place in 2009.

12. Hon'ble Apex Court in the case of Rajesh and others v. Rajbir Singh and others,
(2013) 9 SCC 54 and Kalpanaraj and others 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
576 INDIAN LAW REPORTS ALLAHABAD SERIES

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
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."

13. 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).

14. 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.25000/- towards funeral expenses, a sum of
Rs.1,00,000/- to the respondent-wife towards loss of consortium and Rs.1,00,000/- towards loss of
estate.

15. 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.

16. 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
7 All. U.P. State Road Transport Corporation Vs Smt. Vineeta Verma & Ors.
577
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.

17. 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.

18. 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
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.]

19. The provisions of Order XLI Rule 33 C.P.C. was explained by the Hon'ble Apex Court
in the case of Mahant Dhangir v. 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
578 INDIAN LAW REPORTS ALLAHABAD SERIES

all questions urged in order to render complete justice between the parties. The Court should not
refuse to exercise that discretion on mere technicalities."

20. 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 v. Basanti Devi, AIR 2000 SC 43.

21. 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.

22. 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.

23. In view of above facts and discussions, we are of the considered opinion that the
claimants are entitled to be awarded a total sum of Rs.8,37,000/- along with 7% simple interest
from the date of making of the application till the date of actual payment.

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

25. In the facts and circumstances, we do not make any order as to costs.
----------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2016

BEFORE

THE HON'BLE PRABHAT CHANDRA TRIPATHI, J.

Criminal Revision No.- 2227 Of 2013

Mahendra Prasad Ram ...Revisionist
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for Revisionist:
Rakesh Prasad, B.K. Pandey, Sher Singh

Counsel for Opposite Parties:
Govt. Advocate

Indian Forest Act, 1927 - S. 2(4) - Definition of 'Forest Produce' - Includes wild animal skins
brought from a forest - Leopard/Panther skins constitute forest produce - S. 52 - Seizure of