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. 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
(3.) 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.;