U.P. Rajya Sadak Parivahan Nigam vs Basant Lal & Ors.

HON’BLE SYED QAMAR HASAN RIZVI, J.

Sri Ambika Prasad, learned counsel for the appellant, Sri Hari Prakash Srivastava, learned counsel for the Insurance Company-respondent no. 6, Sri Syed Ahmad Abbas Zaidi, learned counsel for the claimant(s)/respondent nos. 1 to 4 and Sri Sanjay Tripathi, learned counsel for the respondent no. 5 are present.

By means of the present Appeal filed under Section 173 of the Motor Vehicles Act, 1988, the appellant / Uttar Pradesh State Road Transport Corporation (hereinafter referred to as 'Corporation'), has assailed the judgment and award dated 03.04.2007 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 1, Barabanki (hereinafter referred to as the 'Tribunal') in Motor Accident Claim Petition No. 320 of 2001 (Basant Lal and others versus U.P. Rajya Sadak Parivahan Nigam and another), whereby the claim petition filed by respondent nos. 1 to 4 under Sections 166 and 163-A of the Motor Vehicles Act, 1988 has been decided and compensation of Rs. 1,69,500/- (Rupees One Lakh Sixty-Nine Thousand Five Hundred only), along with simple interest @ 5% per annum from the date of the petition till the date of payment, has been awarded against the appellant-Corporation.

Objecting to the present appeal, respondent nos. 1 to 4 have filed Cross Objection which has been registered as Cross Objection No. 5 of 2011 (Basant Lal and others versus Zafar Ahmad Khan and another) under Order XLI Rule 22 of the Code of Civil Procedure, 1908, seeking enhancement of the award in question. Since both the appeal and the cross-objection assails the same judgment and award dated 03.04.2007, therefore are being disposed of by this common judgment.

A succinct recap of the factual matrix, as adumbrated in the pleadings, reveals that on 30.06.2001, at about 4:00 P.M., the wife of respondent no. 1/Basant Lal and the mother of respondent nos. 2 to 4, namely Jamuna Devi while returning to home on foot, along with her husband and a cousin brother, was hit from behind by a Bus bearing registration no. UP32 Z 2369, near village Bhulbhulia (Gulmuliya) Purwa, on the Barabanki-Gonda road, within the territorial limits of Police Station Masauli, District Barabanki. The deceased Jamuna Devi sustained grievous injuries in the said accident and was taken to the District Hospital, Barabanki, for medical treatment where during the course of treatment she succumbed to her injuries on the intervening night of 03/04.07.2001, pursuant to the same, Case Crime No. 90 of 2001, under Sections 279, 337, 338 and 304-A I.P.C., was registered at Police Station Masauli, District - Barabanki.

Respondent nos. 1 being the husband and the respondent no 2 to 4 being the sons of the deceased filed Claim Petition No. 320 of 2001 under Sections 166 and 163-A of the Motor Vehicles Act, 1988 before the learned Tribunal, claiming compensation to the tune of Rs. 5,00,000/- (Rupees Five lakh rupees only) with respect to the death of Jamuna Devi.

The Appellant-Corporation / Opposite Party No. 1 filed Written Statement before the learned Tribunal, denying its knowledge of the facts of the accident in question, for want of information; but in paragraph 15 of the said Written Statement this much has been admitted that the Bus No. UP32 Z 2369 stood contracted with it. The same is quoted here-in-below for ready reference:

Despite due service of notice, Respondent No. 5 (Zafar Ahmad Khan, the registered owner of the Bus (arrayed as Opposite Party No. 2 in M.A.C.P. No. 320/2001) neither filed Written Statement nor entered appearance either in-person or through his counsel. Consequently, the learned Tribunal vide order dated 08.07.2005 proceeded ex-parte against him.

The Learned Tribunal on the basis of pleadings framed the following issues for determination:

While deciding Issue No. 1, the learned Tribunal relied upon testimony of PW-1/ Basant Lal, the husband of the deceased an eye-witness to the accident, the contents of the First Information Report, the site plan / naksha nazari, the injury report and the post-mortem report. No oral or documentary evidence was led on behalf of the appellant-Corporation, to rebut the evidence, nor did the owner of the Bus (respondent no. 5), entered appearance to contest the claim. Subsequently, the applicant herein moved an application dated 19.03.2007 inter-alia stating that UP State Road Transport Corporation is not a necessary party in the case before the learned Tribunal and requested to delete it from the array of the Respondents. The said application was strongly objected by the claimants. The learned Tribunal finally dismissed the aforesaid application vide order dated 23.03.2007. The learned Tribunal on the basis of the material available on record, returned finding that the accident in question occurred due to negligence on the part of the driver of Bus No. UP32 Z 2369 which was under contract with Roadways/ U.P. State Road Transport Corporation, and accordingly answered Issue No. 1 in favour of the claimants.

Further, in deciding the Issue Nos. 2, 3 and 4, the learned Tribunal recorded in terms, that since the learned counsel appearing for appellant-Corporation, on 14.02.2007, did not press any of the said three issues, as such, all the three issues are answered in the negative. For convenience, the relevant part of order dated 14.02.2007 is reproduced herein below -

On Issue No. 5, relating to the entitlement and quantum of compensation, the learned Tribunal noted that the appellant-Corporation, in its Written Statement, has admitted that the offending Bus stood contracted with it but by a subsequent application (paper no. Ka-43), sought to contend that the Bus, at the time of the accident, was not in contract with it, as such any liability, if any, rest upon the owner and insurer of the Bus as per Section 168 of the Motor Vehicles Act, 1988. For ready reference the relevant part of the order dated 03.04.2007 is reproduced as under:

The Learned Tribunal in determining the quantum of compensation, assessed the deceased's income @ Rs. 15,000/- (Rupees Fifteen Thousand Only) with one-third deducted towards personal expenses, leaving Rs. 10,000/- (Rupees Ten Thousand Only) as annual dependency; the deceased being aged between 35 and 40 years at the time of the accident, was assigned a multiplier of 16, resulting in Rs.1,60,000/- (Rupees One lakh Sixty Thousand Only) towards loss of dependency, and Rs. 2,000/- (Rupees Two Thousand Only) towards funeral expenses along with Rs. 2,500/- (Rupees Two Thousand and Five Hundred Only) towards loss of property and Rs. 5,000/-(Rupees Five Thousand Only) towards loss of consortium. Thus, the total compensation was assessed at Rs.1,69,500/- (Rupees One lakh Sixty Nine Thousand and Five Hundred only) together with interest at the rate of 5% per annum from the date of the claims petition. Out of the awarded sum, 50% was ordered to be paid to Respondent No. 1 and the remaining 50% to be divided equally among Respondent Nos. 2 to 4, and each claimant's share to be kept in three-years fixed deposit account with a nationalized bank.

Aggrieved by the aforesaid judgment and award dated 03.04.2007, the appellant-Corporation preferred the present appeal along with an application for condonation of delay in filing the appeal. The Registry of this Court reported delay of 29 days in filing the appeal. However, this Court vide order dated 29.02.2012 condoned the said delay. On the other hand, the claimants/respondents no. 1 to 4 preferred cross-objection, which was registered as Cross Objection No. 5 of 2011 under Order XLI, Rule 22 of the Code of Civil Procedure, 1908 seeking enhancement of amount of the compensation; on which the Registry of this Court report delay of 2 years 7 months and 18 days in filing the said Cross Objection.

Assailing the impugned judgment and award dated 03.04.2007, the learned counsel appearing on behalf of the Appellant-Corporation vehemently argued that the same is bad in law being perverse and contrary to the facts and evidence on record. He urged that the Appellant-Corporation is neither the registered owner of the Bus allegedly involved in the accident nor is the employer of it’s driver, and therefore cannot be saddled with any liability towards the alleged accident. His contention is that under the explicit terms of the agreement executed between the Corporation and the registered owner/Respondent No. 5, any liability arising out of the operation of the vehicle while plied under the agreement rests exclusively upon the owner/Respondent No. 5 and the insurer, as such, the learned Tribunal while passing the impugned judgment and award has committed serious legal error in shifting the liability upon the Appellant-Corporation. He asserted that the learned Tribunal has misconstrued the law on the subject as laid down by the Hon’ble Supreme Court in the case of Rajasthan State Road Transport Corporation versus Kailash Nath Kothari and others reported in AIR 1997 SC 3444, in holding the Corporation liable.

The learned counsel further submitted that the quantum of impugned compensation as awarded by the learned Tribunal is entirely excessive and unsupported by material available on record. To buttress his argument, the learned Counsel placed reliance upon the judgment passed by the Hon’ble Supreme Court in the case of Uttar Pradesh State Road Transport Corporation versus Kulsum and others reported in (2011) 8 SCC 142 and Uttar Pradesh State Road Transport Corporation versus Rajendri Devi and others, reported in (2020) 19 SCC 230.

Per contra, learned counsel appearing for Respondent Nos. 1 to 4 (Claimants) supported the findings returned by the Learned Tribunal to the extent of holding the Appellant-Corporation liable to pay compensation. At the same time, the learned counsel pressed cross objection filed by them under Order XLI Rule 22 of the Code of Civil Procedure, 1908, seeking enhancement of the amount of compensation awarded. He contended that the quantum of compensation awarded by the learned Tribunal is on the lower side and deserves to be enhanced in light of the well settled law.

His submission is that the notional income of the deceased, being a housewife, ought to have been assessed at least @ Rs. 3,000/- (Rupees Three Thousand Only) per month, whereas the learned Tribunal, in utter disregard of the settled legal position, assessed her income as Rs. 15,000/- (Rupees Fifteen Thousand) per annum, and prayed for the enhancement of the impugned award.

It would not be out of context to mention here that the following additional evidences were filed by Appellant-Corporation as per Order XLI Rule 27 C.P.C. before this court which were allowed vide order dated 10.07.2013, considering the same as essential for the effective adjudication of the controversy involved in the matter -

Pursuant to the order dated 25.07.2013 passed by this Court, the United India Insurance Company Limited, Narhi, Lucknow was impleaded as Respondent Nos. 6.

The learned counsel appearing for Respondent Nos. 6 (Insurance Company) vehemently opposed the instant appeal. His contention is that if an issue is not pressed before the Trial Court, the Appellate Court is bound to decide only those issues which were pressed before the learned Trial Court and cannot entertain the same in view of the principle of ‘waiver of right’. He asserted that where a party does not press an Issue before the Trial Court, it is generally considered to have waived its right to raise such Issue at a later stage. To support his argument, he placed reliance upon a judgment passed by the Calcutta High Court in the case of Gour Hari Das versus Jharna Rani Das (C.O. 2306 of 2017) wherein it was held as under –

Heard learned counsel for the parties, and perused the material available on record.

In view of the above, the question that requires consideration at the very outset, is that whether the learned Tribunal could have decided the duly framed issues in negative merely on the basis of the statement made by the counsel for one of the defendants, that he is not pressing the said issues; and if it constitutes a valid and sustainable adjudication of those issues. For convenience, the relevant portion of the impugned judgment dated 03.04.2007 passed by the learned Tribunal is extracted herein below:

(emphasis supplied by this Court)

A bare perusal of the above quoted judgment reveals that the learned Tribunal on the basis of the pleadings consciously framed the issues, but while adjudicating the same answered the three issues in negative only on the instance and mere statement of the learned counsel for the appellant-Corporation, without any independent discussion.

Before delving into the correctness of the aforesaid decision, it would be apt to go through the relevant Rules known as U.P. Motor Vehicle Rules, 1998. For convenience, Rules 209, 211, 220, 221 of the same are quoted here-in-below:-

A conjoint reading of the relevant provisions of the Code of Civil Procedure with Rule 221 of U P Motor Vehicles Rules, 1998 makes it evident and beyond pale of any doubt that on determination of Issues, the Tribunal shall record evidence and make brief memorandum of the substance of what is deposed.

The framing of issues constitutes an imperative stage in civil proceedings, as it delineates the scope of the trial by separating wheat from the chaff, thereby identifying the real dispute and narrowing the area of controversy. There cannot be any lis without issues. In that background, failure to determine the issues not only amounts failure to exercise judicial duty enjoined upon by the trial Court, but also a travesty of justice to be expended to the parties in its letter and spirit.

So far as the effect of not pressing of issues by the counsel representing a party before the learned Tribunal is concerned, the same is well settled in law that the non-pressing of an issue by a party’s counsel, otherwise arising from the pleadings, should not be calculated to amount to a waiver of the plea by the party as it is the duty of the Court to frame correct issues arising from the pleadings, reference can be made to the judgment passed by the Delhi High Court in the case of N.K. Bhatia versus J.P. Singh, reported in 1990 SCC OnLine Del 306, wherein it was held as under:

The Division Bench of the Orissa High Court while deciding the case of Pramodini Mishra & Ors versus Krushna Prasad Mishra, reported in 2018 SCC OnLine Ori 471 has observed as under:

Dealing with the ambit of waiver, the Hon’ble Supreme Court in the case of Union of India versus Bali Ram, reported in 2026 SCC OnLine SC 1319, has held that,

Further, the Hon’ble Supreme Court in the case of Pulin Elehari Lal versus Mahadeb Dutta, reported in (1993) 1 SCC 629 has held that,

The Motor Vehicles Act is a beneficial and social welfare legislation enacted with the object of protecting innocent third-party victims of motor vehicle accidents. Chapter XI of the Act aims to protect third parties and not to promote the business interests of insurance companies. The nature of the Motor vehicle Act, has been duly considered in the case of Skandia Insurance Co. Ltd. versus Kokilaben Chandravadan, (1987) 2 SCC 654, wherein the Hon’ble Supreme Court held as under:

(emphasis supplied by this Court)

The Hon’ble Supreme Court in the case of S. Raghbir Singh Gill versus S. Gurcharan Singh Tohra, reported in 1980 Supp SCC 53, held that where a prohibition enacted is founded on public policy, courts should be slow to apply the doctrine of waiver but if such privilege granted under the Act is for the sole benefit of an individual, the person in whose benefit the privilege was enacted has a right to waive it because the very concept of privilege inheres a right to waiver. The observations made by the Hon’ble Apex Court in this regard is as under:

It would not be out of place to note that the Hon’ble Apex Court in the case of Jogindra Singh Sodhi versus Amar Kaur, (2005) 1 SCC 31,has been pleased to hold that a bald plea of waiver cannot defeat statutory provision made in larger public interest.

It is true that when a party does not press an Issue before the trial court, it is generally considered that they have waived their right to raise that issue later but such waiver cannot be construed as a waiver of a statutory provision enacted in public interest, nor can the conduct or omission of a party operate to defeat or dispense with the statutory mandate.

So far as the requirement of notice to the owner of the motor vehicle and its insurer is concerned, the same has been dealt with by the Karnataka High Court in the case of B. Srinivasa Reddy And Anr. versus Khatumbi And Ors, reported in 1974 SCC OnLine Kar 81, which held that,

Reference can also be made to the judgment passed by the Hon’ble Apex Court in the case of United India Insurance Company Ltd., vs. Shila Datta and Others, reported in (2011) 10 SCC 509, wherein it has been held as under:

For ready reference the relevant provisions are quoted herein below: Section 168 of Motor Vehicle Act, 1988, provides as under:

Rule 207 of Uttar Pradesh Motor Vehicle Rules, 1998, is reproduced as under:

In view of the above, the Learned Tribunal was duty bound to issue notice to the Insurance Company (Respondent no. 6) more particularly when it was specifically pleaded that the same has not been made party; in view of the mandatory use of the word “shall” in the Act as well as Rules framed therein. Such statutory obligation of issuing notice to Insurance Company under Section 168(1) is not founded merely upon the private rights of the parties to the proceedings and, therefore, cannot be defeated by waiver of the parties.

In view of the foregoing discussion, it can be easily observed the expression “not pressed” is contextual and in the present case, having regard to the context in which the expression “not pressed” has been recorded, there is no specific pleading to that effect. Though the issues were framed on the basis of the pleadings their adjudication was not confined to the private interest of the defendant/appellant-Corporation alone. Mere recital that an issue was “not pressed”, without examining its legal and factual consequence, cannot substitute a reasoned determination of the issue. The learned Tribunal was under legal obligation to determine all the Issues that were framed on the basis of the pleadings as were inextricably interconnected. The questions as to the quantum of compensation and the person(s) liable to pay the same, assumes greater significance in proceedings under the Motor Vehicles Act, being a beneficial legislation and it was incumbent upon the learned Tribunal to adjudicate all the Issues so framed; however, it omitted to do so, renders the impugned order defective and unsustainable in law. Suffice it to say that matter needs to be sent back to the Claims Tribunal for fresh adjudication.

Insofar as the connected Cross Objection No. 5 of 2011 filed by the claimants/respondent nos. 1 to 4; under Order XLI Rule 22(1) of the Code of Civil Procedure, 1908, is concerned the same has been filed with delay of 2 years, 7 months and 18 days as against the statutory period of one month prescribed under Order XLI Rule 22(1) CPC. Taking into consideration the cause of delay as furnished by the claimants, this Court finds that explanations for the delay in filing the same are not "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963, so as to warrant condonation of delay. Thus, the application for condonation of delay is hereby rejected in light of the judgment passed by the Hon'ble Supreme Court, in the case of Mahadev Govind Gharge and others versus Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, reported in (2011) 6 SCC 321, has observed as under:

Resultantly, the Cross Objection No. 5 of 2011 stands dismissed being barred by limitation.

However, it is made clear that the dismissal of Cross Objection No. 5 of 2011 on the ground of limitation does not, in the facts of the present case, foreclose the substantive right of Claimants/respondent nos. 1 to 4 to press for just and adequate compensation before the learned Tribunal as it would not be proper for this Court to delve into the merits of the rival claims and to record any final view on the same, at this stage.

Resultant, present Appeal stands partly allowed. The finding returned by the learned Tribunal on Issue Nos. 2, 3, 4, and 5 in the Judgment and Award dated 03.04.2007 passed in Motor Accident Claim Petition No. 320 of 2001 (Basant Lal and others versus U.P. Rajya Sadak Parivahan Nigam and another), are hereby set aside.

The matter is remitted to the Motor Accident Claims Tribunal, Barabanki, for fresh adjudication after affording due opportunity to all parties to place their arguments as are available to them under law and thereafter to pass a fresh award in accordance with law, as expeditiously as possible. All the parties present before this Court are directed to appear along with their counsel before the learned Tribunal on 10.12.2026. The Tribunal is directed to treat the Insurance Company as continuing to be a party in the proceedings.

It is made clear that the amount already released in favor of the claimants/respondent nos. 1 to 4 under the orders of the Court shall remain subject to the final determination to be made by the learned Tribunal in the remanded proceedings. The final entitlement of the claimants, as well as the liability of the parties, shall abide by the fresh award to be passed by the learned Tribunal, strictly in accordance with law.

Registry is directed to transmit a certified copy of this judgment, along with the original records, to the learned Tribunal concerned, forthwith.

Before parting with, I appreciate the efforts and the research made by Mr. Rajat Srivastava, Research Associate and Ms. Mizana Kabeer, Law Intern in finding out the relevant case laws applicable to the present case.