# / v. Smt. Rani Srivastava and others

- **Citation:** (2006) 2 ILRA 811
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-31
- **Bench:** Yatindra Singh, R.K. Rastogi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-smt-rani-srivastava-and-others-40603
- **Pages:** 11

## Headnote

Act
1939-S-110Contributory Negligence-deceased was
bona fide passenger from Allahabad to
Gorakhpur by UPSRTC Bus No. U.T.Y.
9346-became out of order in Jaunpur-all
the passengers including the deceased
were asked to get down and to go by
another but No. UTY 9228-at the Bus
Stand Jaunpur while trying to board on
Bus-dashed by the bus and received
grievous injuries-lastly died-held-extraresponsibility upon the conductor to give
signal for starting the bus after properly
checking-the driver and the owner held
responsible-plea
of
contributory
negligence-not available.

Held: Para 17

Here the deceased was a bona fide
passenger of bus no. UTY 9346, and
when this bus reached Jaunpur, it went
out of order, and then the passengers of
this bus were asked to board on another
bus of the U.P.S.R.T.C. and so Desh
Deepak Srivastava along with other
persons rushed towards bus no. UTY
9228 to board upon it. At such time
every passenger of the defective bus
rushes fast towards the new bus to
board upon it, so that he may occupy a
good seat, and at such a time there is
extra responsibility upon the conductor
of the bus to give a signal for starting
the
bus
after
all
the
transported
passengers had boarded on the bus and
upon the driver to start the bus after
properly checking the above facts. In the
present case, the driver did not check
these facts and so the driver and the
owner are responsible for the accident
and the plea of contributory negligence
of the deceased is not available to them.
Case law discussed:
2000 (3) T.A.C. 588 SC

## Text

2 All] U.P. State Road Transport Corporation V. Smt. Rani Srivastava and others
811
stated above, as the charge is of 1991 and
due
to
pendency
of
the
present
proceeding, the petitioner has suffered a
lot, as such, I hereby direct that he may be
reinstated in service but keeping in view
of the facts and circumstance of the
present case, as the petitioner has not
worked, I direct that he may only be paid
75% back wages.

There shall be no order as to costs.

Petition Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.8.2005

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE R.K. RASTOGI, J.

First Appeal From Order no. 24 of 1997

U.P. State Road Transport Corporation

 ...Respondent/Appellant
Versus
Smt. Rani Srivastava and others

 ...Claimants/Respondents

Counsel for the Appellant:
Sri Samir Sharma

Counsel for the Respondents:
Sri Amarendra Singh
Sri R.H. Srivastava

Motor
Vehicle
Act
1939-S-110Contributory Negligence-deceased was
bona fide passenger from Allahabad to
Gorakhpur by UPSRTC Bus No. U.T.Y.
9346-became out of order in Jaunpur-all
the passengers including the deceased
were asked to get down and to go by
another but No. UTY 9228-at the Bus
Stand Jaunpur while trying to board on
Bus-dashed by the bus and received
grievous injuries-lastly died-held-extraresponsibility upon the conductor to give
signal for starting the bus after properly
checking-the driver and the owner held
responsible-plea
of
contributory
negligence-not available.

Held: Para 17

Here the deceased was a bona fide
passenger of bus no. UTY 9346, and
when this bus reached Jaunpur, it went
out of order, and then the passengers of
this bus were asked to board on another
bus of the U.P.S.R.T.C. and so Desh
Deepak Srivastava along with other
persons rushed towards bus no. UTY
9228 to board upon it. At such time
every passenger of the defective bus
rushes fast towards the new bus to
board upon it, so that he may occupy a
good seat, and at such a time there is
extra responsibility upon the conductor
of the bus to give a signal for starting
the
bus
after
all
the
transported
passengers had boarded on the bus and
upon the driver to start the bus after
properly checking the above facts. In the
present case, the driver did not check
these facts and so the driver and the
owner are responsible for the accident
and the plea of contributory negligence
of the deceased is not available to them.
Case law discussed:
2000 (3) T.A.C. 588 SC

(Delivered by Hon'ble R.K. Rastogi, J.)

1. This is an appeal against
judgment and award dated 10.9.1996
passed by Sri Ram Kishore, then learned
II Addl. District Judge, Jaunpur in Motor
Accident Claim Petition no. 11 of 1982,
Smt. Rani Srivastava and others Vs. U.P.
State Road Transport Corporation.

2. The facts relevant for disposal of
this
appeal
are
that
the
claimant
respondents and Sri Sant Saran filed an
application under section 110 of the
Motor Vehicles Act, 1939 with these
allegations
that
Sri
Desh
Deepak
Srivastava, husband of claimant no.1 Smt.
812 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Rani Srivastava, father of claimant no.2
Km. Uma Srivastava and son of claimant
nos. 3 and 4, Smt. Shail Bala Srivastava
and Sant Saran Srivastava was going from
Allahabad to Gorakhpur on 7.10.1981 in
roadways bus no. UTY 9346. The bus
went out of order in Jaunpur at about
10.30 P.M. and so the passengers of that
bus were asked to get down from the bus
and to go by another bus of the roadways.
Desh Deepak was trying to board on bus
no. UTY 9228 of the U.P. State Road
Transport Corporation at Jaunpur bus
stand which had come from Allahabad
and at that time he was dashed by the bus
and he received grievous injuries. He was
given treatment at the railway hospital
Gorakhpur and then at the Medical
College, Lucknow, but he died in between
the night of 17/18.10.1981. His age was
27 years at the time of accident and he
was
working
as
Sub
Engineer,
(Electrical), Rajkiya Nirman Nigam, Civil
Court's Unit, Allahabad. He was drawing
Rs.920/- per month as his salary in the
pay
scale
of
Rs.400-750/-.
Normal
expectancy of life in his family was 70
years. The claimants, therefore, claimed
Rs.4,74,720/- for monetary loss for a
period of 43 years at the rate of Rs.920/-
per month due to death of Desh Deepak.
They claimed Rs.1,00,000/- for loss of
future increments, promotion, gratuity and
pension etc., Rs.10,000/- for loss of
consortium to the petitioner no.1 Smt.
Rani Srivastava, Rs.10,000/- for mental
agony, sufferings due to sudden death of
Desh Deepak, Rs.5,000/- for medical
expenses, attendant charges and travelling
expenses and Rs.1000/- for funeral
expenses and religious rites etc., in all
Rs.6,00,720/-. They also claimed interest
on this amount at the rate of 12% per
annum till the date of actual recovery. It
was further alleged that the accident had
taken place due to rash and negligent
driving of the driver of bus no. UTY
9228.

3. The opposite party appellant
U.P.S.R.T.C. contested the case. It simply
admitted the ownership of bus no. UTY
9346 and UTY 9228 and denied the
remaining
allegations
made
in
the
petition. It further pleaded that bus no.
UTY 9228 left Allahabad on 7.10..1981 at
4.30 P.M. and Bus no. UTY 9346 left
Allahabad at 5.15 P.M. As such Bus no.
UTY 9228 reached Jaunpur before arrival
of Bus no. UTY 9346 and so there was no
question
of
transportation
of
the
passengers of Bus no. UTY 9346 to Bus
no. UTY 9228 specially at 10.30 P.M. in
the night as alleged in the petition.
Moreover, Desh Deepak Srivastava was
not a bona fide nor valid passenger of bus
no. UTY 9228. There is nothing to show
that any official competent direction was
issued for transportation of the passengers
from one bus to another. No F.I.R. of the
incident was lodged at Jaunpur after the
alleged accident. The U.P.S.R.T.C. denied
the allegation of the accident at Jaunpur
specially in the premises of Jaunpur Bus
Depot. It was further stated that there was
no report or complaint of the alleged
accident even in the office of Jaunpur Bus
Depot. As such, there was no question of
rash and negligent driving of the bus or of
any fatal injury to Sri Desh Deepak
Srivastava by bus no. UTY 9228 or of any
liability of the opposite party on this
account. It was further alleged that even
according to the averments made in the
petition it was a case of contributory
negligence. The opposite party is not
liable for negligence or delay in treatment
of Desh Dipak Srivastava. His death
allegedly took place after ten days of the
incident after so-called treatment at
2 All] U.P. State Road Transport Corporation V. Smt. Rani Srivastava and others
813
Gorakhpur and Lucknow, so the cause of
death must be some secondary factor. The
UPSRTC also denied the relationship of
the claimants with the deceased, his age
and earning capacity, his health and
longevity of life in his family. It was
further
pleaded
that
Desh
Deepak
Srivastava could not receive salary after
the retirement age and there was no
justification for claiming the medical
expenses, and compensation for loss of
consortium,
mental agony etc. The
calculations were vague and the claim
was time barred.

Following issues were framed in this
case:

1.
Whether Desh Deepak Srivastava
was travelling by bus no. UTY 9228
as alleged?

2.
Whether bus no. UTY 9228 was
involved in accident on 7.10.1981 at
about 10.30 P.M. on roadways bus
station Jaunpur?

3.
Whether accident occurred due to
rash and negligent driving of the
bus?

4.
If
so,
to
what
amount
of
compensation are the petitioners
entitled to get from the roadways?

4. This case was originally heard
and decided by Sri L.S.P. Singh, then
District Judge, Jaunpur vide his judgment
and award dated 30.10.1984. He held on
issue no.1 that Desh Deepak Srivastava
was not travelling by bus no. UTY 9228.
He held on issue no.2 that bus no. UTY
9228 was involved in the accident as
alleged in the petition. He held on issue
no. 3 that the accident had taken place due
to negligence of the deceased himself. In
view of this finding he held on issue no.4
that the petitioners were not entitled to
any
compensation.
He,
therefore,
dismissed the claim petition. Aggrieved
with that judgment and award, the
petitioners filed F.A.F.O. no. 147 of 1985.

5. This appeal was heard and
decided by this Court vide judgment dated
21.11.1994. This Court pointed out in its
judgment that the Motor Accident Claims
Tribunal had rejected the claim petition of
the petitioner on the ground that there was
negligence of the deceased himself in the
accident but had not recorded any finding
on the point of compensation. It was
observed that in appealable cases it is
mandatory for the trial court to record
finding on all the issues, so that the
appellate court, even if it disagrees with
the finding of the trial court on any issue,
may be in a position to decide the case
finally on the basis of the findings
recorded in the judgment. Regarding
finding of the court below on the point of
negligence this Court made the following
observations in its judgment:

"5. Tribunal has not taken note of the
fact that driver of the vehicle and
conductor who are the best witnesses to
describe the circumstances have not been
examined. Deceased succumbed to the
fatal injuries being crushed under the
wheels of the bus. Tribunal has not
considered to apply the principle of resipsa loquitor. In case on the available
materials including evidence of P.W.1 we
finally decide the claim petition, parties
are likely to be prejudiced. Therefore,
interest of justice would be best served in
case award is set aside and proceeding is
remitted back for further enquiry where
both parties shall get full opportunity to
814 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
adduce all material evidence from which
Tribunal will be able to answer all
issues."

6. After remand the case was heard
and decided by Sri Ram Kishore, II Addl.
District Judge, Jaunpur vide his judgment
dated 10.9.1996. It may be mentioned that
inspite of the direction of this Court for
examining the conductor and the driver of
the vehicle, these persons were not
examined by the opposite party appellant
nor any additional, oral or documentary
evidence was produced by the opposite
party appellant.

7. Sri Ram Kishore held on issue
nos. 1 and 2 that at the time of accident
Desh Deepak Srivastava was traveling on
bus no. UTY 9228 and the accident on
that bus had taken place on 7.10.1981 at
10.30 P.M. at the roadways bus station,
Jaunpur. He held on issue no.3 that the
accident had taken place due to rash and
negligent driving of bus by its driver. He
held on issue no.4 that the claimants were
entitled to a sum of Rs.1,78,000/- as
compensation. He, therefore, allowed the
petition for recovery of Rs.1,78,000/- as
compensation
with
pendentelite
and
future interest on this amount till the date
of actual recovery at the rate of 9% per
annum. Aggrieved with that judgment and
order the U.P.S.R.T.C. filed this appeal.

8. We have heard the learned
counsel for both the parties and perused
the record.

9. The first contention of the learned
counsel for the appellant was that the
deceased was trying to board on a moving
bus and so he himself committed
contributory
negligence,
and
so
a
reduction should be made in the amount
of compensation taking into consideration
the percentage of his negligence. On the
other hand, the learned counsel for the
respondents submitted that there was no
negligence of Desh Deepak, and so there
was no question of any reduction in the
amount of compensation.

10. In this connection first of all it is
to be seen that the petitioners had come
with a clear cut case that due to
mechanical defect in bus no. UTY 9346 at
Jaunpur, the passengers of that bus were
asked to get down from the bus and to
board on another bus of the UPSRTC, and
so the passengers of that bus rushed to
board on bus no. UTY 9228 which was
ready to depart from the bus station at that
time and Desh Deepak also rushed to
board on that bus. It was further alleged
that when he was trying to board upon the
bus, he was knocked down resulting into
injuries to him, and as a result of those
injuries he died after lapse of a period of
ten days from the date of accident, which
is 7.10.1981. In reply to the above case,
the
UPSRTC
came
with
a
self
contradictory case in its written statement.
At first, it simply admitted the ownership
of both the above buses and denied the
contents of rest of the paragraphs of the
petition stating that those paragraphs were
not admitted. Then it stated in para 26 of
the written statement that bus no. UTY
9346 had left Allahabad at 4.30 P.M. and
bus no. UTY 9228 left Allahabad at 5.15
P.M., so bus no. UTY 9228 could not be
present at bus station Jaunpur when bus
no. UTY 9346 reached Jaunpur and so,
there was no question of transportation of
the passengers of bus no. UTY 9346 on
its alleged failure to bus no. UTY 9228.
Thereafter it was alleged in paragraph no.
27 of the written statement that Desh
Deepak Srivastava was not a bona fide
2 All] U.P. State Road Transport Corporation V. Smt. Rani Srivastava and others
815
passenger of bus no. UTY 9228 and there
was nothing to show that there was any
official competent direction for transfer of
the passengers from bus no. UTY 9346 to
bus no. UTY 9228. Then it has been
pleaded in paragraph no.28 that no F.I.R.
Of the so called incident was lodged and
so the incident is false and it is denied. It
was also pleaded in paragraph no. 29 that
there was no record of such accident even
in Jaunpur Bus Depot and then it had been
pleaded in paragraph no.30 that as such
there was no question of rash and
negligent driving of bus no. UTY 9228 by
its driver.

11. The noteworthy aspect of the
case, however, is that Prem Chandra
Misra, conductor of bus no. UTY 9228
had himself lodged a report of this
accident
at
police
station
Kotwali,
Jaunpur on 8.10.1981 at 6.10 P.M. on the
basis of which entry no.2 was made in the
G.D. of the police station on that date. It
was stated in the application submitted by
Prem Chandra Misra, conductor, which
was addressed to Station officer, Kotwali,
Jaunpur that on 7.10.1981 at 10.30 P.M.
bus no. UTY 9228 was being driven from
Allahabad to Azamgarh and its driver was
Sri Aamirullah Khan. The vehicle was
taking turn at the Jaunpur Bus Station
compound. At that time one passenger
named Desh Deepak Srivastava, who is
resident of Gorakhpur, tried to board on
the bus from the side of driver's gate after
catching the steering. All of a sudden his
foot slipped and so he fell down and
received an injury on his right foot. Some
persons who were accompanying him
took him to the hospital, and he (Prem
Chandra Misra) was giving information of
this accident. Thus, the allegations made
in the aforesaid paragraphs of the written
statement that no accident had taken place
with bus no. UTY 9228 is falsified by the
report submitted by Sri Prem Chandra
Misra, conductor of the above vehicle,
who is an employee of the opposite party
appellant.

12. The appellant took the plea of
contributory negligence of the deceased in
para no. 31 of the written statement. It is,
however, to be seen that when the
appellant was specifically denying the
accident in the paragraphs of the written
statement referred to above, there was no
question
of
pleading
contributory
negligence of the deceased. The plea of
contributory negligence is available in
that case only where factum of the
accident is admitted and it is not available
in those cases where the accident is
denied. In the present case also the
opposite party appellant had denied the
factum of accident in paras 26 to 29 of the
written statement and so technically
speaking
the
plea
of
contributory
negligence could not be available in the
present case. It is also to be seen that the
opposite party appellant had not taken
these pleas in alternative.

13. The appellant also took a plea in
para no. 30 of the written statement that
the accident is not the cause of death of
the
deceased
because
the
deceased
survived for ten days after the accident, so
the accident was not the cause of his
death.

14. In this connection, it is to be
seen that according to the statement of Sri
Ravindra Nath Pandey P.W.1, who is the
only eye witness of the accident examined
in this case, Desh Deepak Srivastava fell
down from the bus when he was trying to
board
upon
it
and
then
he
was
immediately taken to the district hospital
816 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
at Jaunpur where he was medically
examined at 11.30 P.M. and the doctor
found 60 cm x 12 cm x muscle deeplacerated wound on medial side and back
of the lower end of right thigh and upper
end of right thigh including the lower
knee joint. X-Ray was advised and the
police was also informed. His medical
examination report is paper no. C-13/1.
Desh Deepak was referred for treatment
to Gorakhpur after administering several
injections , the reference of which is in
prescription slip, paper no. C-13/3. He
remained admitted in the railway hospital
at Gorakhpur and from that hospital he
was shifted to the G.M. & Associated
Hospital, Lucknow, where he died on
18.10.1981 at 12.30 A.M. as a case of
Post Traumatic Gas Gangrene Right
Lower Limb Septicaemia as per memo
paper no. C-13/4. It has been further
stated in this memo issued by the above
hospital that he had died of Cardio
Respiratory
Failure.
In
his
death
certificate (paper no. C-13/5) cause of his
death was shown as P.V.F. As such there
is no force in the contention of the
appellant that the accident was not the
cause of death of Sri Desh Deepak
Srivastava.

15. The counsel for the appellant
referred
to
examination-in-chief
of
Ravindra Nath Pandey (P.W. 1) who has
stated that when bus no. UTY 9346
reached Jaunpur bus station, bus no. UTY
9228 was ready to depart and its
conductor had given whistle and the
driver was sitting on the driving seat and
the engine had been started and at that
time Desh Deepak Srivastava reached
there and he tried to board on the moving
bus and at that time Desh Deepak
Srivastava
fell
down
and
received
injuries. His contention was that this
attempt to board on a moving vehicle is
wrongful act and a person doing so is
guilty of contributory negligence and so
the UPSRTC should not be held liable for
the accident.

16. In this connection it is to be seen
that the petitioners' case is that when Desh
Deepak was trying to board upon the bus
he received a jurk due to rash and
negligent driving of the bus and so he fell
down and received injuries upon his leg.
Now it is to be seen that the conductor
and the driver of the bus could be the best
witnesses to deny the allegation of
negligence on the part of the driver. This
Court had specifically observed in its
judgment in F.A.F.O. no. 147 of 1985 that
driver and conductor of the vehicle who
are the best witnesses should be produced
to describe the circumstance in which the
accident took place but inspite of fresh
opportunity provided to the UPSRTC to
produce those persons, who are its
employees, it did not produce them. So
the presumption shall be against the
UPSRTC under the provisions of the
Evidence Act that if these witnesses had
been examined, their evidence would not
have supported the appellant's case.

17. It is also to be seen that it is not
such a case where an unauthorised
passenger might have tried to board on a
moving bus or an authorized passenger of
the same bus after getting down from it
would not have cared to board on the bus
in time and would have tried to board on
it when it had started and in that attempt
he might have fallen down. In such cases
the injured can be said to be guilty of
contributory negligence. But in the
present case, the facts are different. Here
the deceased was a bona fide passenger of
bus no. UTY 9346, and when this bus
2 All] U.P. State Road Transport Corporation V. Smt. Rani Srivastava and others
817
reached Jaunpur, it went out of order, and
then the passengers of this bus were asked
to
board
on
another
bus
of
the
U.P.S.R.T.C.
and
so
Desh
Deepak
Srivastava along with other persons
rushed towards bus no. UTY 9228 to
board upon it. At such time every
passenger of the defective bus rushes fast
towards the new bus to board upon it, so
that he may occupy a good seat, and at
such a time there is extra responsibility
upon the conductor of the bus to give a
signal for starting the bus after all the
transported passengers had boarded on the
bus and upon the driver to start the bus
after properly checking the above facts. In
the present case, the driver did not check
these facts and so the driver and the
owner are responsible for the accident and
the plea of contributory negligence of the
deceased is not available to them.

18. Learned counsel for the
appellant further submitted that the
deceased was trying to board on the bus
from the driver's gate as stated in the
report of Sri Prem Chandra Misra,
conductor of bus no. UTY 9228 (paper
no. C-13/2). He submitted that it was a
wrongful act of the deceased to try to
board on the bus from the driver's gate
and so when he fell down in his attempt to
do so, he shall be held liable for
contributory negligence. There is no force
in this contention. No suggestion was
given to Ravindra Nath Pandey (P.W.1),
the only eye witness examined in the case,
that the deceased was trying to board on
the bus from the driver's gate. This
suggestion was given to Sant Saran (P.W.
2) who is not an eye witness, but he has
denied this allegation. The appellant could
produce its driver and conductor to prove
this allegation, but it did not do so inspite
of direction of this Court. The above
allegation was made in the report which
was lodged after the lapse of twenty hours
from the time of the accident and when
there is no evidence to corroborate it, no
reliance can be placed upon it, and so no
adverse inference can be drawn against
the deceased nor can he be held to be
guilty of contributory negligence.

19. The learned counsel for the
appellant cited before us a ruling of
Hon'ble Apex Court in 'Mohammad
Aynuddin Miyan Vs. State of Andhra
Pradesh' reported in 2000(3) T.A.C. 588
(SC). We have carefully gone through this
ruling . It was not a case for compensation
under the Motor Vehicles Act. In this case
driver was charged under section 304-A
I.P.C. for the death of a passenger who
had fallen from a moving bus and had
died. The trial court held him guilty and
punished him and his sentence was
confirmed by the Sessions Court and the
High Court. Hon'ble Apex Court pointed
out that no witness including conductor
had stated that the driver moved the
vehicle before getting signal to move it.
Under
these
circumstances,
criminal
negligence could not be fastened upon the
driver and he was acquitted.

20. Now it is to be seen that the
above ruling was delivered by Hon'ble
Apex Court in a criminal case under
section 304-A I.P.C. The standard of
proof is different in civil and criminal
cases. In criminal case, guilt of the
accused is to be proved upto the hilt and if
the prosecution is not in a position to
prove it, in that manner, its benefit is to
go to the accused. In civil cases the
evidence led by both the parties is to be
weighed and then it is to be considered as
to which version is more probable. It is
also to be seen that in the above case, the
818 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
conductor of the bus had no where stated
that the driver moved the vehicle without
getting signal from him and under these
circumstances, the driver was held not
guilty. On the other hand, in the present
case, the position is that the witnesses
produced from the side of the petitioners
have alleged that the accident took place
due to rashness and negligence of the bus
driver and this Court in F.A.F.O. no.147
of 1987 had given an opportunity to the
appellant to examine its driver and
conductor observing that they are the best
witnesses to describe the circumstance
under which the accident took place, but
even then the appellant did not produce
them. As such, under these circumstances,
a presumption shall be raised against the
appellant
that
these
witnesses,
if
produced, might have deposed against the
appellant's interest. Moreover, as we have
pointed out above, it is not a case where a
passenger of the bus after getting down
from it might have tried to board on the
bus after it had started. But in the present
case passengers of bus no. UTY 9346
were permitted to travel on bus no. UTY
9228 as bus no. UTY 9346 had gone out
of order and so the passengers of bus no.
UTY 9346 rushed to bus no. UTY 9228 to
board upon it, and when the passengers of
the other bus were boarding upon it, it
was the duty of the driver and the
conductor to check that all the passengers
who had come to bus no. UTY 9228 had
properly boarded upon it, and then only
the bus should have been started. In this
view of the matter, the UPSRTC is liable
for the above negligent act of its driver
and this ruling does not render any help to
the appellant.

21. The position in this way is that
there is no legal error in the finding of the
court below that the accident had taken
place due to rash and negligent driving of
the bus by its driver. We find no error in
this finding and confirm the same.

22. Now we take up the question of
compensation which should be awarded
in this case. It may be mentioned that the
age of Desh Deepak at the time of his
death was 27 years and he was employed
as Sub Engineer (Electrical), Rajkiya
Nirman Nigam and was posted in the
Civil Court's Unit, Allahabad. He was
drawing Rs.920/- per month as salary in
the pay scale of Rs.400-750/-. The
claimants alleged that normal expectancy
of life in their family was 70 years and if
Desh Deepak had not died in this
accident,
he
would
have
normally
survived upto the age of 70 years, and
since he was drawing Rs.920/- per month,
they multiplied it by 12 to reach the figure
of annual income, and then claimed it for
a period of 43 years after deducting 27
from
70,
and
thus,
they
claimed
Rs.4,74,720/- under the head of monetary
loss. They also claimed Rs.100,000/- for
loss of future increment, promotion,
gratuity and pension etc., Rs.10,000/- for
loss of consortium to the petitioner no.1,
Smt. Rani Srivastava and Rs.10,000/- for
mental agony and sufferings to the
petitioners due to sudden death of Desh
Deepak Srivastava, Rs.5000/- for medical
expenses incurred on treatment of Desh
Deepak and Rs.1000/- for funeral and
religious rites; in all Rs.6, 00,720/-.

23. Sri Ram Kishore, learned
Presiding Officer of the Claims Tribunal
was of the view that if Desh Deepak had
not died in the accident, he would have
been in service for 31 years more upto the
age of 58 years and by that time his
monthly
income
would
have
been
Rs.1300 to 1400/-, and so by that time the
2 All] U.P. State Road Transport Corporation V. Smt. Rani Srivastava and others
819
petitioners might have been getting from
him Rs.1,000/- per month. He applied the
multiplier of 16 to annual dependency of
Rs.12,000/- and thus, the figure of
Rs.1,92,000/- was reached, then he made
1/3 deduction for lump-sum payment and
reduced the amount of compensation to
Rs.1,28,000/-. He was further of the view
that due to death of Desh Deepak the
petitioners
were
also
entitled
to
Rs.20,000/- for mental pain and shock and
Rs.20,000/- for loss of love and affection.
He was further of the view that the
petitioners were entitled to Rs.5,000/- as
funeral expenses and Rs.5000/- for
medical expenses. He, therefore, decreed
the claim for Rs.1,78,000/-.

24. It was contended by the learned
counsel for the appellant that the court
below had awarded excessive amount
because there was no question of
determining the dependency at Rs.1,000/-
per month when the deceased was
drawing Rs.920/- per month as his salary.
He further contended that there was no
question of awarding Rs.20,000/- for
mental pain, suffering and shock and
Rs.20,000/- for the loss of love and
affection. He further submitted that the
petitioners had claimed Rs.1000/- only as
funeral
expenses
but
the
Tribunal
erroneously awarded Rs.5,000/- under this
head. It was also submitted that the claim
of Rs.5,000/- for medical expenses was
not supported by any documentary
evidence and so it was not admissible. It
was contended by him that no amount is
admissible for mental pain, suffering and
for loss of love and affection under the II
Schedule of the Motor Vehicles Act,
which provides for compensation in case
the petition is under section 163-A of the
Motor Vehicles Act. His contention was
that in this way excessive compensation
has been awarded and so it should be
reduced.

25. In this context it is to be seen
that when this claim petition was filed in
the year 1982 the old Motor Vehicles Act,
1939 was in force, and the claim petition
was filed under section 110 of the above
Act. The corresponding provision of
section 110 of the old Act is contained in
section 166 of the new Motor Vehicles
Act, 1988. Section 163-A and Schedule II
were introduced in the Motor Vehicles
Act 1988 vide the Amending Act no. 54
of 1994 with effect from 14.11.1994. This
provision of section 163-A and Schedule
II of the Act were in force when this case
was decided by Sri Ram Kishore, learned
II Addl. District Judge, Jaunpur on
10.9.1996, and so there was no legal bar
to decide the case under the provisions of
section
163-A.
Under
these
circumstances, the assistance of section
163-A and of Schedule II could be taken
by the learned lower court for deciding
the claim but it is to be seen that the claim
was to be decided either under section
110 of the old Act and 166 of the new Act
or it could be decided in accordance with
the provisions of section 163-A of the
new Act but it is not permissible to partly
decide the claim under section 166 and
partly under section 163-A.

26. Now we consider as to what
amount would have been admissible to
the claimants if the case had been decided
under section 163-A of the Act. It is to be
seen that as per petitioners' case, monthly
salary of Desh Deepak was Rs.920/-per
month.
After
making
deduction
of
Rs.300/- for the expenses which the
deceased might have incurred upon him,
monthly dependency of the petitioners
would come to Rs.620/-. Since the age of
820 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Desh Deepak was 27 years at the time of
accident, the multiplier of 18 years would
be applicable to his case and so after
multiplying Rs.620/- with 12 & then with
18, the amount of compensation comes to
Rs.1,33,920/-. The petitioner no.1 who is
widow of Desh Deepak is also entitled to
Rs.5,000/- under the II Schedule for loss
of consortium. There is also a provision
for payment of medical expenses upto
Rs.15,000/- in the above Schedule. It is
true that in this case no cash-memo etc.
had been filed to substantiate the claim,
but it is to be seen that the accident had
taken place in the night on 7.10.1981 at
about 10.30 P.M. and after this accident
Desh Deepak was immediately taken to
the district hospital, Jaunpur where six
injections mentioned in paper no.C-13/3
were administered to him and then he was
advised to be shifted to Gorakhpur. He
was taken to Gorakhpur that very night in
a taxi where he was admitted in railway
hospital
but
when
there
was
no
improvement in his condition, he was
shifted to King George Medical College,
Lucknow for treatment where he died on
18.10.1981.Taking into consideration the
aforesaid period spent in the hospitals,
and that he was shifted from Jaunpur to
Gorakhpur
and
from
Gorakpur
to
Lucknow, the claim of Rs.5000/- for his
treatment which continued for ten days
does not appear to be excessive, and it is a
reasonable amount, so, the petitioners are
entitled to Rs.5,000/- under the head,
'medical expenses'. The petitioners are
also entitled to Rs.2,500/- for the loss of
estate and Rs.2,000/- for funeral expenses
as provided in the above Schedule. Thus,
the petitioners are entitled to a sum of
Rs.1,48,420/- only.

27. It was further contended by the
learned counsel for the appellant that the
Tribunal has awarded interest at the rate
of 9% per annum and taking into
consideration the present market rate of
interest, it should be 6% per annum only.
It is true that taking into consideration the
present market rate of interest we have
been awarding interest at the rate of 6%
per annum and have made orders for
suitable deduction in the rate of interest in
several cases, but it is to be seen that
where the decretal amount has not been
paid, the liability to pay interest continues
due to non-payment of the amount. In the
present case the entire amount including
interest had been deposited by the
appellant in the year 1997, and thereafter
the liability of the appellant came to an
end. It is also to be seen that in the year
1996 the rate of interest was higher and so
the interest was being allowed even at the
rate of 12% per annum at that time in
motor accident claim cases. Under these
circumstances, when the entire interest
had been deposited in 1997 at the above
rate of 9% per annum, which was
prevalent at the time of deposit, there is
no question of reducing the rate of
interest.

28. The appeal in this way deserves
to be partly allowed and the amount of
compensation deserves to be reduced to
Rs.1,48,420/-.

29. The appeal is partly allowed and
the award passed by the Motor Accident
Claims Tribunal is modified to this extent
that it is reduced to Rs.1,48,420/- plus
proportionate costs. The rest of the award
regarding interest is confirmed. Both the
parties shall bear their own costs of
appeal. The excess amount, if any,
deposited by the appellant shall be
returned to it. Appeal Partly Allowed.
---------
2 All] Katar Singh V. District Magistrate/Collector, Saharanpur and others
821
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.10.2005

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 13526 of 1994

Katar Singh

...Petitioner
Versus
District
Magistrate/Collector,
Saharanpur and others ...Respondents

Counsel for the Petitioner:
Sri Ajai Kumar Srivastava
Sri Prabha Kanta Mishra
Sri Rati Kanta Mishra
Sri Anupam Shukla

Counsel for the Respondents:
Sri H.R. Misra
Sri K.M. Misra
S.C.

Constitution
of
India-Art.-226Termination order-Petitioner appointed
as Cooperative Kurk Amin-appointment
letter stipulates about the nature of
appointment as temporary-circle officer
as enquiry officer found the petitioner
guilty of embezzlement of Rs.9000-No
opportunity
of
hearing
given-heldtermination
is
not
simpliciter-but
punitive
in
nature-Order
can
not
sustained.

Held: Para 10

The order of terminating the services of
the
petitioner
is
not
a
simpliciter
termination but has been founded on the
charge of misconduct. Taking into entire
facts and circumstances of the present
case as brought on record it is clear
beyond any shadow of doubt that the
termination order was passed on, finding
of guilt of embezzlement which is the
foundation of the order. The termination
order is not termination simpliciter but is
punitive in nature.
Case law discussed:
2001 (2) UPLBEC-1185
1999 (3) UPLBEC 1901
W.P. 738/98 decided on 16.11.85
2005 (6) SCC-135
1999 (3) SCC-60

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Ajai Kumar Srivastava,
learned
counsel
for
the
petitioner,
standing
counsel
appearing
for
the
respondent NO.1 and Sri K. M. Misra
appearing for the respondents No. 2 and 3
Counter and rejoinder affidavits have
been exchanged between the parties. The
writ petition is being finally disposed of
with the consent of both the parties.

2. By this writ petition the petitioner
has prayed for quashing the termination
order dated 10.11.1993 Annexure- 3 to
the writ petition.

Brief facts necessary for deciding the
writ petition are:_____

3. The petitioner was selected for
appointment as Cooperative Kurk Amin
by the Collector, Saharanpur vide his
order
dated
1.6.1985
The
District
Assistant Registrar issued an order dated
10.6 1985 directing the petitioner to
complete certain formalities within one
week,
the
appointment order dated
25.6.1985 was Issued by the District
Assistant Registrar in pursuance of the
selection of the petitioner on commission
basis as Kurk Amin. The appointment
order stated that the petitioner's services
are temporary. By an order dated
10.11.1993 issued by the Collector,
Saharanpur petitioner's services were
terminated with immediate effect. The