U.P.Rajya Sadak Parivahan Nigam vs Basant Lal And 4 Ors.

Reserved
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
FIRST APPEAL FROM ORDER No. – 732 of 2007
U.P. Rajya Sadak Parivahan
Nigam
…..Appellant(s)
Versus
Basant Lal and four others …..Respondents(s)
Counsel for Appellant(s) : Akhter Abbas, Ambika Prasad
Counsel for Respondent(s) : Syed Ahmad Abbas Zaidi, Akhter
Abbas, Hari Prakash Srivastava, R.K.
Dubey, Ravendra Pratap Singh,
Sanjay Tripathi, Sultan Hasan
Ibrahim, Syed Ahmad Abbas Zaidi
With
CROSS OBJECTION NO. 5 OF 2011
Basant Lal S/O Chheda Lal And Ors. …..Objector(s)
Versus
Zafar Ahmad Khan And Anr. …..Respondents(s)
Counsel for Objector(s) : R.K. Dubey, Sultan Hasan Ibrahim,
Syed Ahmad Abbas Zaidi
Counsel for Respondent(s) : Ambika Prasad
Court No. - 16
HON’BLE SYED QAMAR HASAN RIZVI, J.
1. 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

2
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
claimant(s)/respondent nos. 1 to 4 and Sri Sanjay Tripathi, learned
counsel for the respondent no. 5 are present.
2. 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.
3. 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.
4. 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

3
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
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.
5. 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.
6. 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:
“पैरा 15- यह कि पैरा 15 में वर्णित तथ्य मात्र बस सं०
32 /2369
यू०पी० जेड विपक्षी उत्तरदाता के द्वारा अनुबंधित
होना स्वीकार है ।“
7. 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 .
8. The Learned Tribunal on the basis of pleadings framed the following
issues for determination:
“1. 30-6-2001 4.00
क्या दिनांक को समय करीब बजे सायं
गोण्डा - बाराबंकी मार्ग ग्राम भुलभुलिया थाना मसौली बाराबंकी के
सामने उ०प्र०राज्य सड़क परिवहन निगम से अनुबंधित बस संख्या
यू०पी० -32 जेड -2368 के चालक द्वारा तेजी व लापरवाही वे बस
चलाकर याची सं० -1 की पत्नी व याचीगण 2 तथा 4 की माता जमुना

4
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
देवी को पैदल जाते समय टक्कर मार दी थी , जिससे जमुना देवी की
आयी हुई वोटों के कारण मृत्यु हो गयी ?
2. क्या याचिका अनुबन्धि त बस की बीमाकम्पनी को पक्षकार न बनाये
जाने के कारण दोषपूर्ण है ?
3. क्या कथित वाहन परिवहन निगम से अनुबन्ध के पश्चात् चलाये
जाने पर बीमा कम्पनी का दायित्व शून्य हो जाता है ?
4. क्या कथित दुर्घटना दिनांक 30-6-2001 को अनुबंधित बस का
बीमा वैद्य एवं प्रभावी था ?
5. क्या याची विपक्षी से कोई प्रतिकर प्राप्त करने के अधिकारी है , यदि
हां तो कितना और किस पक्षकार से |”
9. 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.
10. 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 -

5
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
“उभय पक्ष के विद्धान अधिवक्तागण के तर्क सुने गये ।
वाद विन्दु संख्या 2 ता 4 दुर्घटना कारित करने वाली बस के बीमा
और बीमा कम्पनी के दायित्व से संबंधित है , उपरोक्त तीनों वाद
विन्दुओं जिन्हें प्रतिपक्षी संख्या -1 द्वारा प्रतिवाद पत्र में रक्खेेे गये
अभिवाक् के आधार पर विरचित किया गया है , तर्क के समय
प्रतिपक्षी संख्या – 1 यू०पी०एस०आर०टी०सी० के विद्धान अधिवक्ता
द्वारा उनपर कोई बल नहीं दिया गया और कहा गया है वे उन्हें नॉट
प्रेस करतें है ।
पत्रावली दिनांक 19-2-2007 को निर्णय के लिए पेश हो।”
11. 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:
“अपने प्रतिवाद पत्र प्रपत्र संख्या ख -8 के प्रस्तर -15 में प्रतिपक्षी
संख्या – 1 उ०प्र०राज्य सड़क परिवहन निगम द्वारा यह तथ्य स्वीकार
किया है कि बस संख्या यू०पी० -32 जेड -2369 का उनके यहाँ से
अनुबंधित होना स्वीकार है । कालान्तर में प्रतिपक्षी सं० -1 की ओर से
एक प्रार्थना पत्र क - 43 इस आशय का प्रस्तुत किया गया कि दुर्घटना
के समय उक्त बस न तो उनके यहां से अनुबंधित थी इसलिए प्रतिपक्षी
सं० -1 न तो उक्त बस का स्वामी है और न ही चालक का नियोक्ता है
और न ही उक्त बस का बीमा कर्ता है और ऐसी स्थि ति में उसका
क्षतिपूर्ति के वाद में कोई संबंध नहीं है। उनकी ओर से यह भी तर्क
प्रस्तुत किया गया कि मोटर वाहन अधिनियम 1988 की धारा 168 के
अन्तर्गत क्षतिपूर्ति के दायित्व निर्धारण हेतु जो व्यवस्था दी गयी है ,
उसके अनुसार उक्त उत्तरदायित्व वाहन के स्वामी , वाहन चालक एवं
वाहन की बीमाकर्ता बीमा कम्पनी का संयुक्त रूप से या प्रथक प्रथक
रुप से होगा। प्रतिपक्षी संख्या -1 उपरोक्त में से कोई नहीं है। "
12. 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

6
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
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.
13. 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.
14. 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

7
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
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.
15. 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.
16. 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.
17. 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.
18. It would not be out of context to mention here that the following
additional evidences were filed by Appellant-Corporation as per Order

8
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
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 -
i) Photocopy of the Certificate of Registration of Bus No.
UP 32-Z/2369 owned by Zafar Ahmad Khan allegedly
involved in the accident.
ii) Photocopy of the order U.P.S.R.T.C. regarding
attachment of the bus allegedly involved in the accident
along with the agreement dated 23-01-01 in that regard in
between UPSRTC and the registered owner of the aforesaid
bus.
Iii) Photocopy of insurance policy effective from 08-12-
2000 to 07-12-01 issued by United India Insurance
Company Ltd., Lucknow.
19. 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.
20. 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 –
“23. On the other hand, it is settled that if an issue is not
pressed in the trial court, then the appellate court is bound
to decide only those issues that have been pressed before it.
If an issue is not raised in the Trial Court, the Appellate
Court typically cannot entertain it in accordance with the
Principle of Waiver of Rights. 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. This
principle is supported by the observation that if an issue is
not pressed, it is presumed that the party has abandoned it.”

9
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
21. Heard learned counsel for the parties, and perused the material
available on record.
22. 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:
“वाद विन्दु संख्या - 2,3 तथा का निस्तारण 4
वाद विन्दु संख्या -2 दुर्घटना में संलिप्त अनुबंधित यस की बीमा कम्पनी
को पक्षकार न बनाये जाने के कारण आवश्यक पक्षकार के असंयोजक्ष
के दोष से संबधित है , तीसरा वाद विन्दु इस बावत है कि दुर्घटना
कारित करने वालें वाहन को उ०प्र०राज्य सड़क परिवहन निगम से
अनुबंधित हो जाने के उपरान्त उक्त वाहन की बीमा कम्पनी का
उत्तरदायित्व शून्य होने के संबंध में है तथा चौथा वाद विन्दु दुर्घटना
कारित करने वाले वाहन अनुबंधित बस के वैद्य एवं प्रभावी रूप से
बीमित होने से संबंधित है।
जैसा कि उपर आ चुका है कि दुर्घटना कारित करने वाले वाहन बस का
स्वामी जफर अहमद खान प्रतिपक्षी सं० -2 न तो इस प्रतिकर वाद में
उपस्थि त आया और न ही उसकी ओर से कोई प्रतिवाद पत्र ही प्रस्तुत
किया गया तथा उसके विरुद्ध न्यायाधिकरण के आदेश दिक्षांकित 08-
7-05 के अनुसार एक पक्षीय रूप से प्रतिकर वाद की कार्यवाही
-
अग्रसारित हुयी। इस प्रकार उपरोक्त तीनों ही वाद विन्दु प्रतिपक्षी सं०
1
उ०प्र० राज्य सड़क परिवहन निगम द्वारा प्रस्तुत प्रतिवाद पत्र में किये
गये अभिकथनों के आधार पर विरचित किये गये हैं और उ०प्र० राज्य
सड़क परिवहन निगम की ओर से उपस्थि त विद्वान अधिवक्ता श्री
14-2-2007
अकील इरशाद फारूकी ने दिनांक को उपरोक्त तीनों ही
-
वाद बिन्दुओं पर कोई बल नहीं दिया गया तथा उन्हें नाट प्रेस भी किया
2,3 4
गया। इसलिए वाद बिन्दु संख्या तथा नकारात्मक रूप से निर्णीत
किये जाते हैं। ”
(emphasis supplied by this Court)
23. 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.

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FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
24. 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:-
“ Rule 209. Framing of issues. - After considering the
application and the written statements and oral statements
of the parties, the Claims Tribunal shall proceed to frame
the issues on which the right decision of the claim appears
to it to depend.
Rule 211. Determination of issues - After framing the
issues the Claims Tribunal shall proceed to record evidence
thereon which each party may like to produce.
Rule 220. Judgment and award of compensation.— (1) The
Claims Tribunal, in passing orders, shall record concisely in
judgment the findings on each of the issues framed and the
reasons for such finding and make an award, specifying the
amount of compensation to be paid by the insurer or in the
case of a vehicle exempted under sub-section (2) and (3) of
Section 146 by the owner thereof and shall also specify the
person and persons to whom compensation shall be
payable.
Rule 221. The following provisions of the First Schedule
to the Code of Civil Procedure, 1908 shall so far as may be
apply to proceedings before the Claims Tribunal, namely,
Rules 9 to 13 and 15 to 30 of Order V; Order IX, Rules 3 to
10 of Order XIII, Rules 2 to 21 of Order XVI; Order XVII;
and Rules 1 to 3 of Order XXIII.
25 . 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.
26. 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.

11
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
27. 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:
“  4. ………... 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
himself because it is the duty of the Court also to frame
correct issues arising from the pleadings. We must not
forget in the present case that the parties have not yet led
evidence on various issues. The objection about lack of
territorial jurisdiction, which is otherwise taken in the
written statement at the earliest stage, is now being merely
repeated by means of this application under Order 14 Rule
5 of the Code which otherwise mandates that before passing
any decree, the Court shall either amend or frame additional
issues as may be necessary for determining the matters in
controversy between the parties. It is not even an
application in the midst of the evidence seeking amendment
of the written statement whereby the defendant wants to
introduce the plea of lack of jurisdiction of this Court by
amendment of the written statement. The plea is already
there. It is only in those cases where trial has taken place,
and the objection regarding lack of territorial jurisdiction is
taken for the first time before an appellate or a revisional
court, that it may be possible to say that the case had been
tried on merits and judgment rendered, so it was not liable
to be reversed purely on the technical ground of lack of
jurisdiction. This principle will not apply when such an
objection is taken before the trial court itself. It was
clarified in the case of  Kiran Singh  (supra) in para 7 in the
following words.
“With reference to objections relating to territorial
jurisdiction, section  21  of the  Civil Procedure
Code  enacts that no objection to the place of suing
should be allowed by an appellate or revisional
Court, unless there was a consequent failure of
justice. It is the same principle that has been
adopted in section 11 of the Suit Valuation Act
with reference to pecuniary jurisdiction. The
policy underlying sections  21  and  99 ,  CPC  and
section 11 of the Suits Valuation Act is the same,
namely, that when a case had been tried by a Court
on the merits and judgment rendered, it should not
be liable to be reversed purely on technical
grounds, unless it had resulted in failure of justice,
and the policy of the legislature has been to treat
objections to jurisdiction both territorial and
pecuniary as technical and not open to

12
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
consideration by an appellate Court, unelss there
has been a prejudice on the merits.”
28. 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:
“22…..‘Not pressed’ contextually is a statement which may
mean abandonment, admission and taken back. It is not an
answer to any issue. The consequence of ‘not pressed’ of an
issue if not analyzed in the judgment, cannot be a caveat to
doubt and ambiguity. It is wrong to import meaning into the
words ‘not pressed’ when the said combination of words,
i.e. ‘not pressed’ is likely to have several consequences in
the lis.
……………...
26. A lawyer can abandon an issue but when court is under
legal obligation to answer that issue, it is desirable that a
written memorandum is obtained in that regard and mention
is made in the order sheet. The consequence of such ‘not
pressed’ statement should be analyzed in answering the
issues so that meaning of ‘not pressed’ can be read in to the
context of the decision.”
29. 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,
“49….. Whether or not a party has waived his right has to
flow from his conduct and is, essentially, a question of
fact. We have not been able to find either in the LPA or in
this appeal, any point of waiver having been pleaded by
the appellants. Without a pleading, a plea of waiver need
not be adjudicated.”
30. 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,
"6....... Waiver is a question of fact which depends on the
facts and circumstances of each case. In the case of waiver
of any provisions of the statute it is necessary to prove that
there was conscious relinquishment of the advantage of
such provisions of the statute..........".
31. 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

13
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
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:
“13…….In other words, the legislature has insisted and
made it incumbent on the user of a motor vehicle to be
armed with an insurance policy covering third party risks
which is in conformity with the provisions enacted by the
legislature. It is so provided in order to ensure that the
injured victims of automobile accidents or the dependents
of the victims of fatal accidents are really compensated in
terms of money and not in terms of promise. Such a benign
provision enacted by the legislature having regard to the
fact that in the modern age the use of motor vehicles
notwithstanding the attendant hazards, has become an
inescapable fact of life, has to be interpreted in a
meaningful manner which serves rather than defeats the
purpose of the legislation. The provision has therefore to be
interpreted in the twilight of the aforesaid perspective.”
(emphasis supplied by this Court)
32. 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:
“24. …….. It was held that if the privilege conferred or the
right created by the statute is solely for the benefit of the
individual, he can waive it. It was, however, said that even
in those cases the courts invariably administered a caution
that having regard to the nature of the right some
precautionary and stringent conditions should be applied
before the doctrine is invoked or applied. ..…..The
inescapable conclusion is that Section 94 enacts a qualified
privilege in favour of a voter not to be compelled to
disclose for whom he voted but if he chooses to volunteer
the information Section 94 is not violated.”
33. 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.

14
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
34. 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.
35. 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,
“3. The Tribunal framed issues and proceeded to try the
case. On 3-8-1972 the claimants filed a memo stating that
they did not intend to press their claim against the
Insurance Company and that their claim against it (the
Insurance Company) might be dismissed as not pressed. On
the basis of that memo, the Tribunal made an order on that
day itself dismissing the application as against the
Insurance Company.
17. A duty is cast on the Tribunal to send a notice of such
application to the insurer. When such notice is issued to the
insurer, he can be regarded as a party to the proceedings
before the Tribnual.
19. A like view was taken by a Bench of the Bombay High
Court in Besarlal v. M.A. Claims Tribunal Their Lordships
observed at page 340:
“It is quite clear on a reading of the prescribed form that it
does not direct the claimant for compensation to include in
the application any party as defendant and/or opposite
party. We apprehend that all the relevant facts are in this
connection left to be ascertained by the Claims Tribunal
which has been entrusted with the very serious duties of
finding out all the parties who may be liable to pay
compensation by recording evidence to be produced by the
parties concerned…………”.
21. After notice was issued to the Insurance Company and it
filed its statement of objections and the Tribunal framed
issues as to whether the compensation to the claimants, the
Tribunal could not, in our opinion, delete the Insurance
company as a party to the proceedings even if the
Claimants stated that they did not press their case against
the Insurance Company. So long as the Claimants did not
give up their claim against the owner of the Vehicle
involved in the accident, the Insurer to whom a notice had
already been issued, was necessary party because under
Section 96(1) of the Act the insurer is liable to pay the

15
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
person entitled to the benefit of the decree passed against
the insured.
22. Thus, the Tribunal was not justified in dismissing the
Claimants' application as against the Insurance Company
merely because the Claimants did not press their claim
against the Insurance Company. The judgment of the
Tribunal is vitiated by this material illegality.
23. …The question whether the Insurance Company can be
given up by the Claimant and whether the Tribunal can
decline to make an award against the Insurance Company
solely on the ground that the Claimant did not press his
claim against the Insurance Company, are pure questions of
law and do not involve investigation of any disputed
questions of fact. Hence, there is no impediment for our
permitting those questions being raised for the first time in
this appeal.
36. 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:
“13. The scheme of the Motor Vehicles Act, 1988 as
contained in Chapters XI (Insurance of Motor Vehicles)
against Third Party risks) and XII (Claim Tribunals)
proceeds on the basis that an insurer need not be impleaded
as a party to the claim proceedings and it should only be
issued a statutory notice under section 149(2) of the Act so
that it can be made liable to pay the compensation awarded
by the tribunal and also resist the claim on any one of the
grounds mentioned in clauses (a) and (b) of sub-section (2)
of section 149. Sub-sections (1), (2) and (7) of section 149
clearly refer to the insurer being merely a noticee and not a
party. Similarly, sections 158(6), 166(4), 168(1) and 170
clearly provide for and contemplate insurer being merely a
noticee for the purposes mentioned in the Act and not being
a party-respondent.”
37. For ready reference the relevant provisions are quoted herein below:
Section 168 of Motor Vehicle Act, 1988, provides as under:
“168. Award of the Claims Tribunal.—(1) On receipt of an
application for compensation made under section 166, the
Claims Tribunal shall, after giving notice of the application
to the insurer and after giving the parties (including the
insurer) an opportunity of being heard, hold an inquiry into
the claim or, as the case may be, each of the claims and,
subject to the provisions of section 162 may make an award
determining the amount of compensation which appears to
it to be just and specifying the person or persons to whom
compensation shall be paid and in making the award the
Claims Tribunal shall specify the amount which shall be

16
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
paid by the insurer or owner or driver of the vehicle
involved in the accident or by all or any of them, as the case
may be……”
Rule 207 of Uttar Pradesh Motor Vehicle Rules, 1998, is reproduced
as under:
“Rule 207. Notice to parties involved.— (1) If the
application is not dismissed under Rule 206, the Claims
Tribunal shall send to the owner of the motor vehicle
involved in the accident and its insurer, a copy of the
application and documents filed together with a notice of
the date on which it will hear the application, and shall call
upon the parties to produce on that date any evidence
which they may like to produce.”
38. 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.
39. 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

17
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
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.
40. 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:
61. Needless to notice that the cross-objections are
“
required to be filed within the period of one month from
the date of service of such notice or within such further
time as the appellate court may see fit to allow
depending upon the facts and circumstances of the
given case. Since the provisions of Order 41 Rule 22 of
the Code itself provide for extension of time, the courts
would normally be inclined to condone the delay in the
interest of justice unless and until the cross-objector is
unable to furnish a reasonable or sufficient cause for
seeking the leave of the court to file cross-objections
beyond the statutory period of one month.”
41. Resultantly, the Cross Objection No. 5 of 2011 stands dismissed
being barred by limitation.
42. 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

18
FAFO No. 732 of 2007 &
Cross Objection No. 5 of 2011
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.
43. 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.
44. 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.
45. 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.
46. Registry is directed to transmit a certified copy of this judgment,
along with the original records, to the learned Tribunal concerned,
forthwith.
47. 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.
(Syed Qamar Hasan Rizvi, J.)
October 27, 2026
Virendra
Digitally signed by :-
VIRENDRA KUMAR GUPTA
High Court of Judicature at Allahabad,
Lucknow Bench