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U.P.STATE ROAD TRANSPORT CORPORATION versus SMT. RANI SRIVASTAVA AND OTHERS

High Court of Judicature at Allahabad

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U.P.State Road Transport Corporation v. Smt. Rani Srivastava and others - FIRST APPEAL FROM ORDER No. 24 of 1977 [2005] RD-AH 2211 (31 August 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                            RESERVED.

                               First Appeal From Order no. 24 of 1997

                   U.P.State Road Transport Corporation

versus

   Smt. Rani Srivastava and others.

    ---

Hon'ble Yatindra Singh,J.

Hon'ble R.K.Rastogi,J.

  ( 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. 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 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 res-ipsa 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 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 travelling 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  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 at Jaunpur where  he was medically examined at 11.30 P.M. and the doctor found 60 cm x 12 cm x muscle deep-lacerated 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 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 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 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 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.

Dated:

RPP


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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