# Anoop Maheshwari v. Shiv Kumar Singh & Ors - **Citation:** (2022) 5 ILRA 830 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-01-27 - **Case number:** First Appeal From Order No. 3750 of 2009 - **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anoop-maheshwari-v-shiv-kumar-singh-ors-48596 - **Pages:** 18 ## Headnote A. Civil Law - Motor Accident Act, 1988 - Sections 2(21) & 147 - Claim - Breach of policy - Whether driver possessed proper driving licence or not - Nature of vehicle - Determination - Vehicle was having unladen weight of 6200 Kg, which is less than 7500 Kg - Held, though it is termed as a truck, but is Light Motor Vehicle - Held further, vehicle was being driven by a person authorised to drive it. (Para 20 and 22) B. Civil Law - UP Motor Vehicle Rules, 1998 - R. 220 - Compensation - Future loss - Entitlement - Accident took place in 5 All. Anoop Maheshwari Vs. Shiv Kumar Singh & Ors. 831 2007 - Rule 220 providing for future loss, came into force in 2011 - Effect - Held, future loss of income has to be given for injury cases whether the rules specify or not - Just because the rules are silent, the claimant cannot be deprived of this benefit - Kajal's case relied upon - High Court re-computed the compensation by adding 40% future prospect and applying multiplier of 18 and granted Rs. 2 lacks for loss of amenities. (Para 23, 29, 30, 31 and 32) C. Civil Law - Motor Accident Claim - Rash and negligent driving - Term 'Negligence' - Meaning - Principle of 'res ipsa loquitur' , when it can be applied - Negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental though it is normally accidental - If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" would apply. (Para 11) D. Civil Law - Motor Accident Claim - Principle of contributory negligence - Scope and meaning - A person who either contributes or is co author of the accident would be liable for his contribution to the accident having taken place. (Para 12) E. Civil Law - Income tax Act, 1961 - Section 194A (3) (ix) - Withdraw of amount of interest - Certificate of Income Tax authority, when required - Held, if the interest payable to any claimant for any financial year exceeds Rs. 50,000/-, insurance Co./owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 - And if the amount of interest does not exceeds Rs. 50,000/- in any financial year, registry of this Tribunal is directed to allow the claimants to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. (Para 35) Appeal partly allowed. (E-1) List of Cases cited:- ## Text _Characters 0–39,991 of 59,092. This is a partial read: ask again with offset=39991 for what follows._ 830 INDIAN LAW REPORTS ALLAHABAD SERIES apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) while disbursing the amount. 18. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case. 19. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. Vs Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 10 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R. 20. A copy of this judgment be circulated so that the Tribunals in future may not commit such mistake. A copy of this order be sent to Balveer Singh also for his guidance. 21. The record and proceedings, if any, be transmitted to the Tribunal forthwith. 22. This Court is thankful to both the advocates for ably assisting the Court. ---------- (2022)05ILR A830 APPELLATE JURISDICTION CIVIL SIDE 07.03.2022 BEFORE THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. THE HON'BLE AJAI TYAGI, J. First Appeal From Order No. 3750 of 2009 With First Appeal From Order No. 299 of 2010 Anoop Maheshwari ...Appellant Versus Shiv Kumar Singh & Ors. ...Respondents Counsel for the Appellant: Sri Satya Deo Ojha, Sri Achintya Kumar, Sri Komal Mehrotra, Sri Arvind Srivastava Counsel for the Respondents: Sri Anand Kumar Sinha A. Civil Law - Motor Accident Act, 1988 - Sections 2(21) & 147 - Claim - Breach of policy - Whether driver possessed proper driving licence or not - Nature of vehicle - Determination - Vehicle was having unladen weight of 6200 Kg, which is less than 7500 Kg - Held, though it is termed as a truck, but is Light Motor Vehicle - Held further, vehicle was being driven by a person authorised to drive it. (Para 20 and 22) B. Civil Law - UP Motor Vehicle Rules, 1998 - R. 220 - Compensation - Future loss - Entitlement - Accident took place in 5 All. Anoop Maheshwari Vs. Shiv Kumar Singh & Ors. 831 2007 - Rule 220 providing for future loss, came into force in 2011 - Effect - Held, future loss of income has to be given for injury cases whether the rules specify or not - Just because the rules are silent, the claimant cannot be deprived of this benefit - Kajal's case relied upon - High Court re-computed the compensation by adding 40% future prospect and applying multiplier of 18 and granted Rs. 2 lacks for loss of amenities. (Para 23, 29, 30, 31 and 32) C. Civil Law - Motor Accident Claim - Rash and negligent driving - Term 'Negligence' - Meaning - Principle of 'res ipsa loquitur' , when it can be applied - Negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental though it is normally accidental - If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" would apply. (Para 11) D. Civil Law - Motor Accident Claim - Principle of contributory negligence - Scope and meaning - A person who either contributes or is co author of the accident would be liable for his contribution to the accident having taken place. (Para 12) E. Civil Law - Income tax Act, 1961 - Section 194A (3) (ix) - Withdraw of amount of interest - Certificate of Income Tax authority, when required - Held, if the interest payable to any claimant for any financial year exceeds Rs. 50,000/-, insurance Co./owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 - And if the amount of interest does not exceeds Rs. 50,000/- in any financial year, registry of this Tribunal is directed to allow the claimants to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. (Para 35) Appeal partly allowed. (E-1) List of Cases cited:- 1. U.P.S.R.T.C. Vs Km. Mamta AIR 2016 (SC) 948 2. Pawan Kumar & anr. vs M/S Harkishan Dass Mohan Lal & ors. decided by Apex Court on 29 January, 2014 3. First Appeal From Order No. 1818 of 2012; Bajaj Allianz General Insurance Co. Ltd. Vs Smt. Renu Singh & ors. decided by Allahabad High Court on 19.7.2016 4. Archit Saini & anr. Vs Oriental Insurance Co. Ltd.; AIR 2018 SC 1143 5. Khenyei Vs New India Assurance Co. Ltd. & ors.; 2015 LawSuit (SC) 469 6. Singh Ram Vs Nirmala & ors. (2018) 3 SCC 800 7. National Insurance Com. Ltd. Vs Annappa Irappa Nesaria & ors. 2008 (1) T.A.C. Page 812 SC. 8. Kajal Vs Jagdish Chand & ors.; 2020 1 Supreme (SC) 110 9. R.D. hattangadi Vs M/s Pest Control (India) Pvt. Ltd. & ors. 1995 0 ACJ 366 10. Raj Kumar Vs Ajay Kumar & anr.; 2010 0 ACJ 1 11. Mohan Soni Vs Ram Avtar Tomar & ors..; 2012 1 ACC 1 12. Syed. Sadiq & ors. Vs Divisional Manager, United India Insurance Co. Ltd.; (2014) 2 SCC 735 13. Mukund Dewagan Vs Oriental Insurance Co. Ltd.; AIR 2017 SC 3668 14. Dinesh Singh Vs Bajaj Allianz General Insurance Co. Ltd; 2014 (2) T.A.C. 737 (S.C.) 15. Pappu Deo Yadav Vs Naresh Kumar; AIR 2020 SC 4424 832 INDIAN LAW REPORTS ALLAHABAD SERIES 16. Erudhaya Priya Vs State Express Transport Corp. Ltd.; AIR 2020 SC 4284 17. Karthik Subramanian Vs B. Sarath Babu & Anr.; 2021 ACJ 993 18. National Insurance Co. Ltd. Vs Pranay Sethi & ors. 2017 0 Supreme (SC) 1050 19. Gobald Motor Service Ltd. & Vs R. M. K. Veluswami & ors. AIR 1962 SC 1 20. Uttaranchal Transport Corp. Ltd. Vs Vimla Devi; 2009 (0) AIJEL-SC 66148 21. General Manager Kerala State Road Transport Corp. Trivandrum Vs Susamma Thomas & ors. 1994 (2) SCC 176 22. Sarla Verma Vs Delhi Transport Corp. (2009) 6 SCC 121 23. National Insurance Co. Ltd. Vs Pranay Sethi & ors. 2017 0 Supreme (SC) 1050 24. Yadava Kumar Vs The Divisional Insurance Co. Ltd. & anr.; (2010) 10 SCC 341 25. Shahikala & ors. Vs Gangalashmamma & anr.; (2015) 9 SCC 150 26. Malarvizhi Vs United India Insurance Co. Ltd. & anr.; (2020) 4 SCC 228 27. Oriental Insurance Com. Vs Mathu Ram; 2019 ACJ 65 (HP) 28. National Insurance Co. Ltd. Vs Pranay Sethi & ors. 2017 0 Supreme (SC) 1050 29. Oriental Insurance Co. Ltd. Vs Poonam Kesarwani & ors. 2008 LawSuit (All) 1557 30.U.O.I. Vs A.S. Sharma 1995 ACJ 493 31. A.V.Padma Vs Venugopal; 2012 (1) GLH (SC) 442 32. Smt. Hansagori P. Ladhani Vs The Oriental Insurance Co. Ltd..; 2007(2) GLH 291 33. Review Application No. 1 of 2020 in First Appeal From Order No. 23 of 2001; Smt. Sudesna & ors. Vs Hari Singh & anr. 34. Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs U.O.I. & ors. decided by Apex Court on 27.1.2022 (Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J.) 1. Heard Sri Anand Kumar Sinha, learned counsel for the Insurance Company and Sri Satya Deo Ojha, learned counsel assisted by Sri Achintya Kumar, learned counsel for the claimant. 2. Both these appeals have been preferred against the common award dated 23.10.2009 passed by A.D.J., Special Judge (E.C. Act) Varansasi/ Motor Accident Claims Tribunal, Varanasi in Claim Petition No. 206 of 2000 awarding a sum of Rs.13,23,831/- with interest at the rate of 06%. 3. Parties are referred as claimant and Insurance Company for the sake of convenience. 4. Brief facts of the case are that the accident occurred on 09.04.2007 when the claimant/injured was going with his friend Manish Kodiya on Motorcycle No. U.P. 65A. A-4337. The claimant was plying the said motorcycle and when they came near Sigra, a procession was going and at 02:45 p.m. when the claimant reached at Kuber Complex a Truck bearing No. U.P. 70 U9437 on which L.P.G. Cylinders were loaded, and, the said truck was trying to overtake the vehicle driven by the claimant/injured and while trying to overtake via left without giving any signal took turn towards left side. The driver Awadhesh Kumar- respondent no.2 was driving the truck in rash and negligent manner dashed the vehicle driven by claimant. The claimant/injured was hospitalized in Singh Medical and Research Centre, Teliyabagh and was operated by Dr. Sunil Saran, Orthopedic Surgeon and Dr. Prashant Baranwal, Plastic Surgeon & General Surgeon and was hospitalized from 09.04.2007 to 12.04.2007. Due to the accidental injuries the doctors had to 5 All. Anoop Maheshwari Vs. Shiv Kumar Singh & Ors. 833 amputate left lower limb right from the thigh region. The claimant was thereafter shifted to New Delhi where he was admitted from 12.04.2007 to 17.05.2007 and thereafter also he was admitted in Jai Prakash Narayan, Apex Trama, Centre, AIMS, Delhi 17.05.2007 to 20.07.2007 and from there he was discharged but despite being discharged till he filed the claim petition and till the evidence was recorded he was under pain and he had suffered disability as opined by the doctors. 5. On notices/summons being issued the respondents appeared and did not accept that the accident occurred due to involvement of the said vehicle. Despite the fact that the charge sheet was laid against the drive of the truck. Respondent no.2 namely Awadhesh Yadav did not appear before the Tribunal. Respondent no.3 Insurance Company appeared and filed reply of denial. 6. The Tribunal framed about 8 issues and decided them mostly in favour of the claimant. 7. The claimant is aggrieved by the compensation awarded, where as the Insurance Company has raised several grounds for challenging the said award. In light of the judgment of the Apex Court reported in U.P.S.R.T.C. Vs. Km. Mamta AIR 2016 (SC) 948, all the issues raised have to be decided by this Court under Section 173 of the Motor Vehicles Act. 8. The grounds by Insurance Company are as follows:- "(i) The accident was caused by the truck which was carrying L.P.G. Cylinders and it was a heavy Transport Vehicle having weight of 12,000 Kg. as such driver has to possess driving licence for heavy transport vehicle but the driver has only licence for Light Motor Vehicle even without endorsement of licence for transport vehicle. (ii) The driver has no valid driving licence to drive transport vehicle and owner has committed breach of policy and as such appellant-Insurance Company is not liable to pay compensation. (iii) The accident was caused on 09.04.2007 and on the date, the driver of vehicle has driving licence to drive L.M.V. and the driver obtained endorsement for driving transport vehicle on 17.04.2007 i.e. after accident taken place. (iv) The law is settled that endorsement of Transport vehicle is necessary indiscriminately whether the driving licence is for L.M.V. or for H.G.V. whereas the weight of truck is 12,000. Kg. (v) The claimant/injured was driving Motorcycle and he was also negligent in causing accident. (vi) The learned Judge gave the finding that the claimant has no independent income but even then wrongly assess the income of Rs.4,500/- per month arbitrarily without any basis or evidence whereas the Schedule provides that if no income is proved only Rs.15,000/- per annum may be presumed for assessing the income. (vii) The Tribunal has wrongly applied multiplier according to Schedule although the application was filed under Section 166 of M.V. Act and more than Rs.40,000/- per annum income was assessed and Tribunal also fixed more than 834 INDIAN LAW REPORTS ALLAHABAD SERIES Rs.40,000/- per annum income of the injured/claimant. (viii) If the injured was sitting on the shop he can still sit in the shop and there is no loss of any earning. (ix) As per Schedule of workman compensation Act the injured caused is amount 30% disability but the learned Tribunal assess the disability of 45% contrary to the provisions of statute. (x) The learned Tribunal wrongly allowed Rs.4,70,000/- for artificial leg and in case the artificial leg is fixed to the injured his disability for earning loss will be reduced and the compensation awarded him is much more excessive. (xi) The Tribunal wrongly allowed Rs.1,00,000/- for assistant which is not permissible under Schedule. (xii) The Tribunal wrongly allowed Rs.3,39,926/- for medical expenses and over and above Tribunal further allowed Rs.4,70,000/- for artificial leg and such circumstance compensation for Rs.4,13,100/- is absolutely illegal and unjustified." 9. Heard the learned Advocates for the claimant and Insurance Company. None appears for the Owner or driver of the Truck. 10. In these appeals 3(three) issues arise for our consideration: (i) whether claimant was also negligent and the finding of Tribunal not returning a finding holding him contributor of accident is bad? (ii) Whether the finding that there is no breach of policy is bad. (iii) Whether compensation awarded requires recomputation. Issue No.1:- Negligence visa vis contributory negligence. The concept of contributory negligence has been time and again evolved, decided and discussed by the courts. 11. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" would apply. 12. The term contributory negligence has been discussed time and again a person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place. The Apex Court in Pawan Kumar & Anr vs M/S Harkishan Dass Mohan Lal & Ors decided on 29 January, 2014 has held as follows: 7. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. 5 All. Anoop Maheshwari Vs. Shiv Kumar Singh & Ors. 835 Anthony (supra) followed in K. Hemlatha & Ors. (supra). Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted hereinbelow: "6. "Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of "composite negligence" will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." 13. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 (Bajaj Allianz General Insurance Co. Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 which has held as under: "16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The 836 INDIAN LAW REPORTS ALLAHABAD SERIES degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed. 17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently. 18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection. 19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all. 20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies. 21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not 5 All. Anoop Maheshwari Vs. Shiv Kumar Singh & Ors. 837 meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840). 22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side." 14. The Apex Court recently has considered the principles of negligence in case of Archit Saini and Another Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143 which would apply in the facts of this case. 15. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under for negligence as well as breach of policy condition:- 4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant. 14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder : "6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person 838 INDIAN LAW REPORTS ALLAHABAD SERIES was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." 18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subjectmatter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law. What emerges from the aforesaid discussion is as follows : (i) In the case of composite negligence, plaintiff/claimant is entitled to 5 All. Anoop Maheshwari Vs. Shiv Kumar Singh & Ors. 839 sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings." 16. The Tribunal while considering the issue of negligence has categorically held that the charge sheet, F.I.R and the site plan has been properly evaluated by it and the evidence of the claimant proves that the vehicle was involved in the accident insured by the respondent. The driver of the truck who is the best witness has not stepped into the witness box. The finding of facts as to the accident being authored by the driver of the truck who was driving his truck rashly and negligently cannot be brushed aside. The Tribunal has even considered that in the written statement the owner did not file rebuttal contending that the claimant was negligent. This also will not permit us to consider the submission of Sri Sinha that the claimant was contributor to the accident. Issue no.2: Breach of Policy:- This takes us to the submission that the vehicle was being driven without proper licence and there is breach of policy condition. 17. It is the submission of Sri Sinha, learned counsel for the Insurance Company that the vehicle involved in the accident was a heavy motor vehicle and the license of the driver which is endorsed later than the accident goes to show that there is a tick mark on licence for driving heavy motor vehicle but is later than accident. The submission of Sri Sinha is that the interpolation is after the incident took place. It is submitted by Sri Ojha, learned counsel for the claimant that it is a dispute between the owner of the vehicle insured by Insurance Company and driver of the truck, and claimant being third party his right cannot be scuttled. However, considering this aspect we can give recovery rights to Insurance Company subject to proving that the driver did not have license to drive heavy vehicle and that the owner had entrusted the truck to a person fully knowing that he was not having proper driving license, however, the factual finding that the unladen weight of the vehicle would fall within definition of Light Motor Vehicle as per Section 2(21) of the Motor Vehicle Act, 1988. This since on a bare reading of license page 102 that there is a tick mark but the same is not proved before the Tribunal to be after or before the accident. 840 INDIAN LAW REPORTS ALLAHABAD SERIES 18. It is further submitted that the driver of the truck was not having license to drive heavy vehicle. It is submitted that this is also apparent from the record. It is submitted that the tribunal has considered that the vehicle involved in the accident was a light motor vehicle This finding according to learned counsel for the appellant-Insurance Company is bad even on facts and law. 19. It is further submitted by learned counsel for the Insurance Company that the Tribunal while considering the aforesaid aspect about licence that the driving licence was valid from 31.01.2005 to 30.01.2025 of the motorcyclist. The driving licence of the driver of offending vehicle shows that Driving Licence No.35910 Varanasi 98 valid from 22.07.2004 to 21.07.2007 for light motor vehicle and from 17.04.2007 it was endorsed for heavy motor vehicle, the said document has been verified by Insurance Company. The accident occurred on 09.04.2007 and therefore, it cannot be said that on 09.04.2007 the driver had proper driving licence. Learned counsel further submitted that the driver did not have valid driving licence whether the vehicle was bearing 6200 kg. has to be evaluated from record which we would advert to later. 20. The definition of Light Motor Vehicle under Section 2 (21) reads as under:- "(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed [7500] kilograms." 21. Section 147 Requirements of policies and limits of liability. -- "(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-- (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-- (i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required-- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or 5 All. Anoop Maheshwari Vs. Shiv Kumar Singh & Ors. 841 (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation. --For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to subsection (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons." 22. The document which is produced on Rs.10/- Stamp Paper along with Transport Department, Uttar Pradesh Certificate as document 1/2 and 1/3 goes to show that unladen weight of the vehicle was 6200 kg. and therefore, no fault can be found with the finding of the Tribunal. The Oriental Insurance Company has also mentioned in the policy that weight does not exceed 7500 kg. and can not exceed 12000 kg. which categorically shows that finding of fact that though the vehicle is termed as heavy goods vehicle it was having unladen weight of 6200 kg, though, it is termed as a truck but is Light Motor 842 INDIAN LAW REPORTS ALLAHABAD SERIES Vehicle. Once the prime facie evidence is before the Tribunal and this Court that the unladen weight was 6200 kg., the request of Sri Anand Sinha, learned counsel to grant what is known as recovery rights cannot be granted even on the document at Page 58(G) which is the same xerox copy of the document which is particular slip of the vehicle and also mentions the unladen weight 6200 kg. laden weight is more. In view of the matter, it cannot be said that the vehicle was being driven by a person not authorised to drive the said vehicle. The driver could have been examined by the Insurance Company but the same has not been done. The record goes to show that licence was valid for Heavy Motor Vehicle but whether it was in vogue on date of accident or not will have to be proved, which fact gives rise to doubt about whether licence was valid for Heavy Motor Vehicle from July, 2004 to 27.07.2007.