# UPSRTC, Bhaisali Road, Depot Meerut v. Mohd. Azad & Anr

- **Citation:** (2020) 1 ILRA 891
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-07
- **Case number:** FAFO No. 473 of 2016
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upsrtc-bhaisali-road-depot-meerut-v-mohd-azad-anr-45294
- **Pages:** 7

## Headnote

A. Motor Accident Act, 1988 - Disability
and Permanent Disability - Assessment
of loss - Principle to be followed by
Tribunal
-
Disability
refers
to
any
restriction or lack of ability to perform an
activity in the manner considered normal
for a human-being - Permanent disability
refers to the residuary incapacity or loss
of use of some part of the body, found
existing at the end of the period of
treatment
and
recuperation
-
What
requires to be assessed by the Tribunal is
the effect of the permanent disability on
the earning capacity of the injured; and
after assessing the loss of earning
capacity in terms of a percentage of the
income, it has to be quantified in terms of
892 INDIAN LAW REPORTS ALLAHABAD SERIES
money, to arrive at the future loss of
earnings - Tribunal has to first decide
whether there is any permanent disability
and if so the extent of such permanent
disability. (Para 18)

B.
Motor
Accident
Act,
1988
-
Compensation - Computation in injury
cases - In injury cases, the claimants are
entitled to pecuniary as well as nonpecuniary damages - General principles
for computation of compensation in
injury laid down by Apex Court in R.D.
Hatangadi's case - Tribunal assessed the
monthly income of claimant to be Rs.
4500/- considering that he was working
as weigh man, which is reasonable and in
the lower side - Correct multiplier of 17
applied taking into note the judgement in
Sarla Verma's case - Thereafter 75%
deduction in view of 25% disability made
and after adding the medical expenses to
it Tribunal awarded the compensation
with 7% simple interest - No perversity
or illegality in the impugned judgement
and award. (Para 17 & 19)

Appeal dismissed. (E-1)
List of cases cited :-

## Text

1 All. U.P.S.R.T.C., Bhaisali Road Depot Meerut Vs. Mohd. Azad & Anr.
891
offending truck, which bore on its face, the
signature of the concerned transport authority
which in fact, issued the driving licence.
Under these circumstaces, it was incumbent
on
the
transport
authority
to
have
satisfactorily
and
reasonably
denied
endorsement of that particular transport
authority on the driving licence as such, but
this burden was never discharged properly
and in view of the fact that claim raised by
producing the driving licence itself and the
copy of the application for renewal of the
licence in qeustion moved before the
concerned transport authority and in view of
the various directions and views expressed by
the Hon'ble Apex Court in various cases
referred in the judgment of the tribunal it
recorded finding that the driver of the
aforesaid offending vehicle was possessing
valid and effective driving licence, which
finding cannot be faulted with, at this
juncture, as the scrutiny done by the tribunal
appears to be based on material on record and
the verbal claim against non renewal does not
carry substance.

22. Considering the age of the deceased
and the entirety of this case, this Court is of the
considered opinion that the amount of overall
compensation Rs.1,28,000/- carrying 12%
interest per annum cannot be said to be either
excessive or unreasonable amount. But it is
just compensation.

23.
Consequently,
the
finding
recorded by the claims tribunal in Claim
Petition No. 53 of 1997 (Kishwar Ali and
another vs. Udaiveer Tyagi and others) on
all the three issues is hereby upheld.

24. Therefore, the appeal being
devoid of merit is hereby rejected.

25. Office is directed to remit the
amount of appeal Rs. 25,000/- back to the
tribunal, so that proper compliance of the
tribunal's order may be ensured.

26. Cost easy.

27. The lower court record may be
remitted back to it for ensuring proper
compliance.
----------
(2020)1ILR 891

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

FAFO No. 473 of 2016

UPSRTC, Bhaisali Road, Depot Meerut
 ...Appellant
Versus
Mohd. Azad & Anr. ...Respondents

Counsel for the Appellant:
Sri Rahul Agarwal, Sri Shantam Madhyan

Counsel for the Respondents:
Sri Bed Kad Mishra, Sri Raghuvansh
Chandra, Sri Ram Jee Saxena

A. Motor Accident Act, 1988 - Disability
and Permanent Disability - Assessment
of loss - Principle to be followed by
Tribunal
-
Disability
refers
to
any
restriction or lack of ability to perform an
activity in the manner considered normal
for a human-being - Permanent disability
refers to the residuary incapacity or loss
of use of some part of the body, found
existing at the end of the period of
treatment
and
recuperation
-
What
requires to be assessed by the Tribunal is
the effect of the permanent disability on
the earning capacity of the injured; and
after assessing the loss of earning
capacity in terms of a percentage of the
income, it has to be quantified in terms of
892 INDIAN LAW REPORTS ALLAHABAD SERIES
money, to arrive at the future loss of
earnings - Tribunal has to first decide
whether there is any permanent disability
and if so the extent of such permanent
disability. (Para 18)

B.
Motor
Accident
Act,
1988
-
Compensation - Computation in injury
cases - In injury cases, the claimants are
entitled to pecuniary as well as nonpecuniary damages - General principles
for computation of compensation in
injury laid down by Apex Court in R.D.
Hatangadi's case - Tribunal assessed the
monthly income of claimant to be Rs.
4500/- considering that he was working
as weigh man, which is reasonable and in
the lower side - Correct multiplier of 17
applied taking into note the judgement in
Sarla Verma's case - Thereafter 75%
deduction in view of 25% disability made
and after adding the medical expenses to
it Tribunal awarded the compensation
with 7% simple interest - No perversity
or illegality in the impugned judgement
and award. (Para 17 & 19)

Appeal dismissed. (E-1)
List of cases cited :-
1. UPSRTC v Shanti Devi 2007 (3) TAC 261 and New
India Insurance Co v Lekhraj 2009 ACC 96 (DB)
2. U.P. State Road Transport Corporation v.
Rani Srivastava; 2006 ACJ 1864)
3. Municipal Corporation of Greater Bombay v.
Laxman Iyer; AIR 2003 SC 4182
4. Gujarat State Road Transport Corporation
Vs. Thacker Narottam Kalyanji; 2006(1) TAC
678
5. Sudhir Kumar Rana Vs. Surinder Singh; AIR
2008 SC 2405), (2007) ACJ 2268 (MP) (DB)
6.
Muthaiah
Sekhar
v
Nesamony
Tpt
Corporation AIR 1998 SC 3064
7. Rajesh Kumar Raju vs Yudhveer Singh 2008
ACJ 2131 (SC)
8. R.D. Hatangadi v. Pest Control (India) Pvt.
Ltd., (1995) 1 SCC 551
9. Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343
10. Sayyad Sadiq v Divisional Manager, United
Insurance Company 2014 (1) TAC 369 (SC)
11. Sheela Pandey v New India Insurance (1)
ACCD 276 (All)
12. Ramchandrappa v Manager, Sunderam
Royal Insurance Company 2011 (4) TAC (SC)
13. Sarla Verma v DTC Ltd., AIR 2009 SC 3104

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Shri Rahul Agarwal,
learned counsel for the appellant and Shri
Bed Kant Mishra, learned counsel for the
opposite parties.

2. This appeal has been filed against
the judgement and award dated 31.10.2015
passed
by
Motor
Accident
Claims
Tribunal /Additional District Judge, Court
no. 18, Meerut, in MAC No. 619 of 2014
by which the learned tribunal has awarded
a compensation of Rs. 3,64,500/- with 7%
simple interest per annum from the date of
filing of this claim petition.

3. Aggrieved by the impugned
award, the UPSRTC/appellant has filed
this appeal stating that the plea of
contributory negligence on the part of
TATA-407 was not properly considered.
The claimant was driving a motor cycle
without a valid driving license and there
was contributory negligence on his part.
The disability certificate was not issued by
the CMO, it was issued by a private doctor
and the same should not have been relied.
The compensation amount has been
arbitrarily assessed and is in the higher
side. The injury sustained by the claimant
is not in the nature of permanent disability.
It was also not shown that after the
accident the claimant was terminated or
1 All. U.P.S.R.T.C., Bhaisali Road Depot Meerut Vs. Mohd. Azad & Anr.
893
removed from his job. The injury which
was sustained by the claimant was on his
jaw and it could not effect the job of the
claimant weigh man clerk. There was no
cogent evidence with regard to income of
the claimant. The compensation and
interest is highly excessive and the award
being not acceptable under law should be
set aside.

5. In respect of an accident dated
11.05.2014 which took place at about 6:30
AM when the claimant was going on his motor
cycle from Hapur to Meerut. When he reached
to town Kharkhauda, the Roadways Bus No.
UP 15 AT -0814 which was driven by driver
very rashly and negligently came from the side
of Meerut and dashed the motor cycle and the
claimant sustained serious injuries. The
claimant remained under treatment for a very
long period and it resulted in permanent
disability. He was working in the Suger Mill
Modi Nagar as claimant clerk and he was aged
about 28 years. Therefore, this petition has
been filed for compensation.

6. The defendant UPSRTC filed a
written statement denying the allegations
of the petition and stating that the accident
did not occurred because of the rashness
and negligence of the driver of the Bus.
The driver was having valid and effective
driving license. The said accident took
place because of rash and negligent
driving of a truck U.P. 37-T-0371 which
dashed the bus resulting collision with the
motor cycle. The claimant was not having
the valid driving license. He was not
wearing
the
helmet.
There
was
contributory negligence on his part, the
driver of the truck and the owner has not
been made party.

7. The driver Satyaveer Singh has
also filed written statement who has stated
that at the time of the accident, he was
having a valid driving license. He has
denied that the accident took place by his
bus and has stated that, if at all, there is
any responsibility of paying compensation
the same should be paid by the UPSRCT.

8. On the basis of pleadings of
parties,
following
issues
have
been
framed, the English translation thereof is
as follows:

1. Whether on 11.05.2014, at
6:30 a.m. when the claimant was going on
his motor cycle from Hapur to Meerut and
when he reached to town Kharkhauda, the
Roadways Bus No. U.P. 15 AT -0814
which was driven by driver very rashly
and negligently came from the side of
Meerut, dashed the motor cycle and the
claimant sustained serious injuries?

2. Whether the accident occurs
due to rash and negligent driving of Truck
no. U.P. 37 T-0371 by the driver who
dashed the motor cycle of the claimant?

3. Whether the said accident is
the result of rash and negligent driving of
claimant itself?

4. Whether the accident is the
result of contributory negligence?

5.
Whether
the
driver
of
Roadways Bus No. U.P. 15 AT-0814 was
having valid and effective driving license
on the date of accident?

6. Whether the petition is having
fault of non-formulation of necessary
parties.

7. Whether the claimants are
entitled for any relief, if yes, then how
much and from whom?

9. The claimant PW-1 and PW-2 Dr.
R.N. Gupta have been examined in
support. The documentary evidence has
also been filed showing his disability and
894 INDIAN LAW REPORTS ALLAHABAD SERIES
treatment. The defendant no. 2 has
examined himself as DW-1 and DW-2
conductor Hukum Singh has also been
examined.

10. After hearing both the sides and
perusing evidence on record, the learned
tribunal passed the impugned award.

11. The learned counsel for the
UPSRTC has confined his argument to the
fact of contributory negligence and that the
truck owner of TATA 407 and the driver
were not made party and there is nonjoinder
of
necessary
party.
Further
argument is that no eyewitness has been
examined and the disability certificate is
not valid as it has been issued by a private
doctor and relied upon by the learned
tribunal. He has however, not disputed the
quantum of compensation.

12. It was the case of appellant that it
was TATA 407 which dashed the
motorcycle
of
the
claimant
while
overtaking THELA and in the process, it
also hit the bus of the appellant and the
bus collided with a tree and got badly
damaged. From the appellant side DW-1
and DW-2 were examined to prove this
fact. On the other hand, the case of the
claimant was that the bus hit his
motorcycle and the driver of the bus was
driving the bus very rashly and negligently
at the time of accident. FIR was lodged
against driver of the offending bus and
after
investigation
charge-sheet
was
submitted by police against the driver of
the bus who has stated himself in his
evidence that in that case he appeared and
was released on bail. The claimant-injured
examined himself and supported the
version of petition. He is an injured
witness and obviously his testimony
assumes greater weight and therefore
much reliance was placed by the Tribunal.
The learned Tribunal on the basis of
evidence on record and also referring the
judgements of this Court in UPSRTC v
Shanti Devi 2007 (3) TAC 261 and New
India Insurance Co v Lekhraj 2009
ACC 96 (DB) came to the conclusion that
that the accident took place because of
rash and negligent driving of the driver of
the bus. It was also rightly concluded by
the Tribunal that, as this was established
that the accident occurred due to rash and
negligent driving of the bus driver, there
was no need to implead the driver and
owner of TATA 407.

13. The learned counsel for the
appellant
has
raised
the
issue
of
contributory negligence on the part of the
claimant. There appears to be no evidence
given by the appellant side on this point
and even DW-1 and DW-2 have also not
stated anything about it. But the learned
counsel has submitted that the claimant
was not having valid driving licence to
drive motorcycle at the time of accident
and therefore, it should be inferred that the
claimant contributed towards accident.

14. It needs to be mentioned that
where an accident is due to negligence of
both parties, substantially there would be
contributory negligence and both would be
blamed.
In
a
case
of
contributory
negligence, the crucial question on which
liability depends would be whether either
party could, by exercise of reasonable
care, could have avoided the consequence
of other's negligence. Whichever party
could have avoided the consequence of
other's negligence would be liable for the
accident. It is now well settled that in the
case of contributory negligence, Courts
have power to apportion the loss between
the parties as seems just and equitable. The
1 All. U.P.S.R.T.C., Bhaisali Road Depot Meerut Vs. Mohd. Azad & Anr.
895
question raised is that the claimant was not
having driving licence and therefore, he is
liable for contributory negligence. This
argument is of no help to the appellant as
it has been settled legal position that the
party taking such plea is required to prove
the same by adducing evidence. On the
contrary, the appellant and the witnesses
examined have denied that any such
accident took place by the bus. In U.P.
State Road Transport Corporation v.
Rani Srivastava; 2006 ACJ 1864), it has
been held that where the factum of
accident is denied by the opposite party,
plea of contributory negligence is not
available. Moreover, it has been also held
in Municipal Corporation of Greater
Bombay v. Laxman Iyer; AIR 2003 SC
4182 that mere breach of traffic regulation
by injured/victim cannot be a ground to fix
responsibility
for
accident
on
such
injured/victim
and
there
should
be
concrete, clinching, positive and legally
acceptable material for that. In Gujarat
State Road Transport Corporation Vs.
Thacker Narottam Kalyanji; 2006(1)
TAC 678 and Sudhir Kumar Rana Vs.
Surinder Singh; AIR 2008 SC 2405),
(2007) ACJ 2268 (MP) (DB), it was held
that if a person drives a vehicle without a
driving licence, he commits offence, but
merely because he had no driving licence,
the same alone cannot be sufficient to
attribute contributory negligence to that
driver when the evidence had disclosed
him to be an efficient driver. Moreover,
the claimant has stated before the Tribunal
that he has driving licence and the same is
on record which has been issued by RTO,
Ghaziabad for driving motor vehicle
except transport vehicle. Thus, there is no
force in this argument of appellant.

15. Another argument is with regard
to the disability certificate of the claimant
which has not been issued by CMO or
Medical Board but by a private hospital. In
Muthaiah Sekhar v Nesamony Tpt
Corporation AIR 1998 SC 3064 and
Rajesh Kumar Raju vs Yudhveer Singh
2008 ACJ 2131 (SC), though the
disability certificate was not issued by
authorized medical officer or board and it
has been held that what is necessary is that
the doctor who has issued the certificate of
disability must be examined to prove it.
Unless the author of the certificate
examined himself ,it was not admissible in
evidence .it was also not known whether
the person issued the certificate was
competent to to issue such certificate. It is
also necessary that such doctor must have
treated the injured. If the disablement
percentage is expressed with reference to
any specific limb, then the effect of such
disablement of the limb on the functioning
of the entire body, that is the permanent
disability suffered by the person. In
Rajesh Kumar Raju (supra) certificate
was issued after two years of Accident and
it was not known whether the doctor
issuing certificate treated the injured, on
what basis such certificate was issued two
years after the accident was not known and
the author of the certificate ass not
examined, hence it was held that the same
could not be relied upon.

16. In this case, the doctor has been
examined as PW-2 and he has stated the
claimant remained under his treatment for
a substantial period. On the basis of x-ray
reports, and treatment, he has stated that
the injured sustained serious injuries, his
jaws was fractured and plate was inserted
by operation. Three upper teeth were also
broken.
The
learned
Tribunal
has
discussed in detail the seriousness of
injury and the impact thereof on the
functional and physical ability in day to
896 INDIAN LAW REPORTS ALLAHABAD SERIES
day activities. He was under prolonged
treatment and record shows that the
learned Tribunal found that as per bills,
Rs. 145000/- was spent on his treatment,
though, the claimant has stated that Rs.
400000/- were spent on his treatment.

17. In injury cases, the claimants are
entitled to pecuniary as well as nonpecuniary damages. In R.D. Hatangadi v.
Pest Control (India) Pvt. Ltd., (1995) 1
SCC 551 and Raj Kumar v. Ajay
Kumar, (2011) 1 SCC 343, the Supreme
Court laid down the general principles for
computation of compensation in injury.

"The provision of the Motor
Vehicles Act, 1988 (''Act" for short) makes it
clear that the award must be just, which means
that compensation should, to the extent
possible, fully and adequately restore the
claimant to the position prior to the accident.
The object of awarding damages is to make
good the loss suffered as a result of wrong
done as far as money can do so, in a fair,
reasonable and equitable manner."

18. Accordingly, disability refers to
any restriction or lack of ability to perform
an activity in the manner considered
normal for a human-being. Permanent
disability refers to the residuary incapacity
or loss of use of some part of the body,
found existing at the end of the period of
treatment and recuperation. What requires
to be assessed by the Tribunal is the effect
of the permanent disability on the earning
capacity of the injured; and after assessing
the loss of earning capacity in terms of a
percentage of the income, it has to be
quantified in terms of money, to arrive at
the future loss of earnings. Therefore, the
Tribunal has to first decide whether there
is any permanent disability and if so the
extent of such permanent disability.

19. The doctor has determined the
disability of the claimant to be 35% in this
case. The learned Tribunal has, however,
determined the same to be 25% on the basis
of evidence on record. The learned Tribunal
assessed his monthly income to be Rs. 4500/-
considering that he was working as weigh
man in Modi Sugar Mills and also in view of
judgement in Sayyad Sadiq v Divisional
Manager, United Insurance Company
2014 (1) TAC 369 (SC) determining the
income of vegetable seller in view of price
rise to be Rs. 6500/- monthly, in Sheela
Pandey v New India Insurance (1) ACCD
276 (All) of milkman to be Rs. 6500/- per
month and in Ramchandrappa v Manager,
Sunderam Royal Insurance Company
2011 (4) TAC (SC), of a coolie to be Rs.
4500/- monthly. Thus the income determined
by the learned Tribunal is also reasonable and
in the lower side. Correct multiplier of 17 has
been applied taking into note the judgement
in Sarla Verma v DTC Ltd., AIR 2009 SC
3104 and thereafter 75% deduction in view of
25% disability has been made and after
adding the medical expenses Rs. 364500/- has
been awarded as compensation with 7%
simple interest which cannot be said to be in
higher side.

20. In view of above discussion, I
find no perversity or illegality in the
impugned judgement and award and
consequently, the appeal has got no force
and is liable to be dismissed.

21. The appeal is dismissed.

22. The office is directed to send a
copy of this judgement along with lower
court record to the Court concerned for
information and necessary compliance.

23. Stay, if any, shall stand vacated.
Remit back the amount of Rs. 25000/-
1 All. Royal Sundaram Alliance Insurance Vs. Smt. Shakuntla Devi & Ors.
897
deposited by the appellant to the learned
Tribunal to be adjusted against the
awarded compensation.
----------
(2020)1ILR 897

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

FAFO No. 2011 of 2014

Royal Sundaram Alliance Insurance
 ...Appellant
Versus
Smt. Shakuntla Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri S.K. Mehrotra, Sri Archit Mehrotra

Counsel for the Respondents:
Sri B.N. Pathak, Smt. Kiran Gupta, Sri
Dharmendra Kumar Gupta, Sri Pawan Giri

A. Employee's Compensation Act, 1923 -
Claim - Liability of Employer - Necessity of
proving negligence - Employer shall be liable
to pay compensation for personal injuries
caused to the employee by an accident
arising out of and in the course of his
employment - To hold the liability, it is not
necessary to prove negligence on the part of
employer - It is to be established only that
the injured or deceased employee, at the
time of accident was in the employment and
was engaged in employer's work - Liability
of the employer to pay compensation is
absolute subject to those three exceptions
viz. first employee was under the influence
of drinks or drugs, second he has wilfully
disobeyed an order given and third where
the workman has wilfully removed a safety
guard or other devices provided for his
safety - (Para 12 & 18)

B. Employee's Compensation Act, 1923 -
Section 2 (n) and 3 - Determination of
'course of employment' - The words in the
course of employment mean in the course
of the work which the workman is
employed to do and which is incidental to it
- The words arising out of employment are
understood to mean that during the course
of employment, injury has resulted from
some risk incidental to the duties of the
service, which, unless engaged in the duty
owing to the master, it is reasonable to
believe the workman would not otherwise
have suffered. (Para 13)

C. Claim - Procedure - Non-framing of issue -
Effect
-
Not
framing
of
issues
by
Commissioner will not vitiate the decision
unless it caused prejudice to the affected
party - Non-framing of issues is not regarded
as fatal where parties had gone to trial fully
knowing the rival case and had led evidence
in
support
of
their
contentions
-
Commissioner discussed all the pleas raised
and opportunities were given to adduce
evidence - No prejudice caused to the
appellant by non-framing of issue. (Para 23)

First Appeal From Order dismissed. (E-1)

List of cases cited :-
1. Mackinnon Mackenzie & Co.(P). Ltd v
Ibrahim Mahammad Issak, AIR 1970 SC 1906
2. Talcher Thermal Station v Bijuli Naik, 76
(1993) CLT 699 (Orrisa)
3.
Shakuntala
Chandrakant
Shreshti
v
Prabhakar Maruti Garvali AIR 2007 SC 248
4. Employees' State Insurance Corporation v
Francis De Costa, 1997 (1) TAC 646 (SC)
5. S.D. Manager, National Insurance Company
v Shaibarani Mohanta, 2019 (2) TAC 115
6. S.D. Manager, National Insurance Company
v Suresh Kumar Behera, 2019 (2) TAC 461
7. New India Assurance Company v Braja
Kishore Sutar, 1992 ACJ 715
8. Nedupuri v Sampati, AIR 1963 SC 684

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)