# Desh Kumar @ Desh Raj Nagariya & Anr v. Vinod Khatri & Anr

- **Citation:** (2021) 10 ILRA 279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-15
- **Case number:** FAFO No. 2895 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/desh-kumar-desh-raj-nagariya-anr-v-vinod-khatri-anr-46273
- **Pages:** 8

## Headnote

Sri Archana Singh

(A) Composite/ Contributory Negligence -
The deceased or the person concerned should
be shown to have contributed either to the
accident and the impact of accident upon the
victim could have been minimised if he had
taken care. In this case, the deceased was not
the author or the co-author of the accident.
(Para 12)

Appeal Partly Allowed. (E-10)

List of Cases cited:

## Text

10 All. Desh Kumar @ Desh Raj Nagariya & Anr. Vs. Vinod Khatri & Anr.
279
Tribunal is set aside. The respondentInsurance Company shall deposit the
amount within a period of 12 weeks from
today with interest at the rate of 6% from
the date of filing of the claim petition till
the amount is deposited. The Insurance
Company will deposit the entire amount
can have their right to recover the amount
from owner and the Insurance Company of
the other vehicle.

11. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291 and this
High Court in , total amount of interest,
accrued on the principal amount of
compensation is to be 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) and in First Appeal
From Order No.2871 of 2016 (Tej Kumari
Sharma v. Chola Mandlam M.S. General
Insurance Co. Ltd.) decided on 19.3.2021
while disbursing the amount.

12. Record be sent back to tribunal
forthwith.

13. This Court is thankful to the
young counsel who has ably assisted us for
getting this old matter disposed of during
this pandemic.
----------
(2021)10ILR A279
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 15.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

FAFO No. 2895 of 2008
(Ref: Civil Misc. Delay Condonation &
Substitution Application)

Desh Kumar @ Desh Raj Nagariya & Anr.
 ...Appellants
Versus
Vinod Khatri & Anr. ...Respondents

Counsel for the Appellants:
Sri Ramanand Gupta,Sri Maithali Sharan
Pipersenia,Sri P.N. Gupta

Counsel for the Respondents:
Sri Archana Singh

(A) Composite/ Contributory Negligence -
The deceased or the person concerned should
be shown to have contributed either to the
accident and the impact of accident upon the
victim could have been minimised if he had
taken care. In this case, the deceased was not
the author or the co-author of the accident.
(Para 12)

Appeal Partly Allowed. (E-10)

List of Cases cited:

1. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. First Appeal From Order
No. 1818 of 2012
280 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Khenyei Vs New India Assurance Co. Ltd. &
ors 2015 LawSuit (SC) 469

3. Malarvizhi & ors. Vs United India Insurance
Co. Ltd. & anr. 2020 (4) SCC 228 (followed)

4. United India Insurance Co. Ltd. Vs Indiro0
Devi & ors. 2018 (7) SCC 715 (followed)

5. The Oriental Insurance Co. Ltd. Vs Mangey
Ram & ors. 20019 0 Supreme (All) 1067
(followed)

6. New India Assurance Co. Vs Urmila Shukla
MANU/SCOR/24098/2021 (followed)

7. Kriti & ors. Vs Oriental Insurance Co. Ltd.
2021 (1) TAC 1 (followed)

8. AIR 2021 SC 3301

9. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co. Ltd. 2007 (2) GLH 291 followed)

10. Smt. Sudesna & ors. Vs Hari Singh & ors.
Review Application No. 1 of 2020 in First Appeal
From Order No. 23 of 2001 (followed)

11. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd. First Appeal From
Order no. 2871 of 2016 (followed)

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Subhash Chand, J.)

1. Heard Sri Maithali Sharan
Pipersenia,
learned
counsel
for
the
appellant and Ms Majima Singh holding
brief of Ms Archana Singh, learned counsel
for the respondents.

2. This appeal, at the behest of the
claimants, challenges the judgment/award
dated
25.01.2005
passed
by
Motor
Accident Claims Tribunal/Special Judge
(E.C. Act), Jhansi (hereinafter referred to as
'Tribunal') in M.A.C. No. 433 of 2003.

3. Brief facts as culled out from the
record
are
that
on
27.04.2003
Dr.
Himanshu Nagaria had gone to Hotel Isha
Garden
situated
at
Bhedaghat
road,
Jabalpur for dinner with his friends. When
he was returning to Medical College where
he was living, near Krishi Upaj Mandi
Naka Balsagar a Metador bearing no. M.P.
20 G-1248 was negligently all of sudden
stopped by his driver and back light was
also switched off due to which motor-cycle
of Dr. Himanshu Nagaria bearing No. U.P.-
93 D-2391 dashed with the standing
Metador causing grievous injuries to Dr.
Himanshu Nagaria and on the way to
Medical College he succumbed to his
injuries.

4. The deceased was 25 years of age
at the time of accident. He was a doctor by
profession and was pursuing M.D in
pediatric and was getting Rs.10,600/- as a
stipend. He was survived by his father
(since deceased) and in his place his
another son namely 1/1. Navnit Nagaria has
been substituted vide Court's order dated
15.09.2021 and the mother (who is
appellant
no.
2). The
Tribunal
has
considered his income to be Rs. 15,000/-
p.m, deducted 1/3rd towards personal
expenses
of
the
deceased,
granted
multiplier of 12, granted Rs.10,000/-
towards compensation for loss of love and
affection,
granted
Rs,.
15,000/-
for
compensation for loss of estate, granted Rs.
2,000/- towards funeral expenses and
ultimately assessed the total compensation
to be Rs.14,72,000/-.

5. Learned counsel for the appellant
has submitted that the deceased Himanshu
Nagaria was 25 years was a doctor and
doing his M.D in pediatrics and getting Rs.
10,600/- p.m as stipend. The learned
counsel for the appellant contends that he
10 All. Desh Kumar @ Desh Raj Nagariya & Anr. Vs. Vinod Khatri & Anr.
281
was below the age of 40 years, the tribunal
should have added 50% to his income
which is erroneous as it has not added any
amount. He has further submitted that he
was survived by his father and mother and
therefore,
the
deduction
as
per
the
judgements of Sarla Verma and Pranay
Shetty and even in those days should be
1/4th and not 1/3rd. It is submitted by him
that amount of non pecuniary of Rs.
27,000/- requires to be enhanced.

6. As against this, Ms Majima Singh,
advocate appearing for Ms. Archana Singh,
learned
counsel
for
the
respondents
contends that deduction of 1/3rd from
personal expenses is not just and proper, it
should be 1/2nd.

7. Having heard the learned counsel
for the parties, income of the deceased
considered by tribunal is Rs. 15,000/- per
month as it has been rightly pointed out by
Ms Majima Singh, counsel appearing for
Ms Archana Singh, counsel for the
respondents that record shows that the
Tribunal has been more lenient in deciding
the income of the deceased as the stipend
paid to the deceased was Rs. 10,600/- p.m.
We are convinced that the deceased was in
his second year of M.D in pediatrics and
therefore his personal income can be
considered to be Rs. 20,000/- p.m in light
of recent decisions. Let us consider the
negligence from the perspective of the law
laid down.

8. 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.

9. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or
author of the accident would be liable for
his contribution to the accident having
taken place.

10. 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 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
degree of care required, of course, depends
282 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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."

emphasis added

11. The Apex Court in Khenyei Vs.
New India Assurance Company Limited
& Others, 2015 LawSuit (SC) 469 has
held as under:

"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.
10 All. Desh Kumar @ Desh Raj Nagariya & Anr. Vs. Vinod Khatri & Anr.
283
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
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
284 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.

(iv) It would not be appropriate
for the court/tribunal to determine the
extent of composite negligence of the
drivers of two vehicles in the absence of
impleadment of other joint tort feasors. In
such a case, impleaded joint tort feasor
should be left, in case he so desires, to sue
the other joint tort feasor in independent
proceedings after passing of the decree or
award."

emphasis added
10 All. Desh Kumar @ Desh Raj Nagariya & Anr. Vs. Vinod Khatri & Anr.
285

12. The latest decision of the Apex
Court
in
Khenyei
Vs.
New
India
Assurance Company Limited & Others,
2015 Law Suit (SC) 469 has laid down one
further
aspect
about
considering
the
negligence
more
particularly
composite/contributory
negligence.
The
deceased or the person concerned should be
shown to have contributed either to the
accident and the impact of accident upon
the victim could have been minimised if he
had taken care. In this case the deceased
was not the author or the co-author of the
accident. Hence, the oral prayer that
deduction of 50% from the compensation
be made is rejected.

13. This takes this Court to the issue
of compensation. We would place reliance
on the Apex court decision in Malarvizhi
& Ors Vs. United India Insurance
Company Limited and Another, 2020 (4)
SCC 228 and United India Insurance Co.
Ltd. Vs. Indiro0 Devi & Ors, 2018 (7)
SCC 715. and in The Oriental Insurance
Company Ltd. Vs. Mangey Ram and
others, 2019 0 Supreme (All) 1067 and
the recent judgment of the Apex Court in
New India Assurance Company Vs. Urmila
Shukla decided by the Apex Court on
6.8.2021
reported
in
MANU/SCOR/24098/2021 and Kirti and
others vs oriental insurance company ltd
reported in 2021(1) TAC 1It could not be
culled out from record that on what basis,
the Tribunal has deducted the pecuniary
benefits from the income cannot be
fathomed. The income of the deceased in
the year of accident and looking to his
profession can be considered to be
Rs.20,000/- per month as the deceased is
below 50 years, 40% as future loss of
income requires to be added in view of the
decision of the Apex Court in Pranay
Sethi (Supra). As far as amount under the
head
of
non-pecuniary
damages
are
concerned, it should be Rs.70,000/- + 10%
increase as per the decision of the Apex
Court in Pranay Sethi (Supra) as three years
have elapsed hence, the lump sum amount
under this head would be Rs.1,00,000/-. As
far as multiplier is concerned, it is 18 as the
deceased was in the age bracket of 21 to
25..

14. Hence, the total compensation
payable to the appellants is computed
herein below:

i. Income Rs.20,000/-

ii. Percentage towards future
prospects : (40%) Rs.8000/-

iii.Total income : Rs. 20,000 +
8,000= Rs.28,000/-

iv. Income after deduction of 1/2
: Rs. 14,000/-

v. Annual income : Rs. 14,000 x
12 = Rs.1,68,000/-

vi. Multiplier applicable : 18

vii.
Loss
of
dependency:
Rs.1,68,000 x 18 = Rs.30,24,000/-

viii. Amount under non-pecuniary
head= 70,000/-Plus Rs 30,000/as per
pranay sethi (supra) = 1,00,000/-

ix.
Total
compensation
:RS:
31,24,000/-

15. As far as issue of rate of interest is
concerned, we are convinced that though
the delay was only of 62 days, the matter
remain pending for three years . In light of
the judgment of Apex Court reported in
286 INDIAN LAW REPORTS ALLAHABAD SERIES
AIR 2021 SC 3301, we restrain the interest
of these three years to 4 %, rest it will
remain 6% enhanced to 7% from the date
of filing of the petition till the judgment.

16. In view of the above, the appeal is
partly allowed. Oral cross objections are
allowed and compensation is recalculated.
Judgment and award passed by the
Tribunal shall stand modified to the
aforesaid extent. The respondent-Insurance
Company shall deposit the amount within a
period of 12 weeks from today with interest
at the rate of 7% from the date of filing of
the claim petition till the amount is
deposited. The amount already deposited
be deducted from the amount to be
deposited. The Insurance Company will
deposit the entire amount can have their
right to recover the amount from owner and
the Insurance Company of the other
vehicle. As far as deceased is concerned, it
is a case of composite negligence, hence,
the amount cannot be deducted from the
compensation awarded to the claimants
who are the heirs of a non tort-feasor.

17. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291 and this
High Court in , total amount of interest,
accrued on the principal amount of
compensation is to be 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) and in First Appeal
From Order No.2871 of 2016 (Tej
Kumari Sharma v. Chola Mandlam M.S.
General Insurance Co. Ltd.) decided on
19.3.2021 while disbursing the amount.

18. Record be sent back to tribunal
forthwith.

19. This Court is thankful to both the
learned Advocates for getting this matter
disposed of during this pandemic.
----------
(2021)10ILR A286
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 14.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

FAFO No. 3203 of 2018
with
FAFO No. 3254 of 2018

Smt. Islamunnisa ...Appellant
Versus
Smt. Manni Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Mohd.Asim Zulfiquar

Counsel for the Respondents:
Sri Sushil Kumar Mehrotra

(A) Quantum of Compensation - House rent
Allowance received by deceased could not have