# Dharam Veer & Ors v. Kamal Singh & Ors

- **Citation:** (2020) 12 ILRA 87
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-26
- **Case number:** First Appeal From Order No. 1194 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharam-veer-ors-v-kamal-singh-ors-45529
- **Pages:** 17

## Headnote

Law-Motor
Accident
Claim-
'Negligence'-Principle
of
'Res
Ipsa
Loquitur' -Meaning - 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 -It can be both intentional or
accidental which is normally accidentalMore 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. (Para 18)

B. Motor Accident Claim - Contributory
Negligence and Composite Negligence -
Difference - 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 -
In case of composite 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. (Para 22 and 23)

C. Motor Accident Claim - Civil Procedure
Code - Section 11 - Res Judicata -
Finding on negligence by Tribunal having
coordinate jurisdiction - If ingredients of
Section 11 of Code are satisfied the later
tribunal should not venture to substitute
its view without new and cogent evidence
produced before it - Tribunal committed
an error in giving its fresh finding on
negligence for the same accident - Held,
the earlier judgment would be binding on
the subsequent Tribunal deciding between
the same parties. (Para 29 and 33)

D.
Motor
Vehicle
Act,
1988-Civil
Procedure Code - Section 2(11) - Legal
Representative-Meaning-Entitlement of
husband
of
deceased
to
receive
compensation-Legal
representative
means any person who in law represents
the estate of a deceased person, and
includes any person who inter meddles
with the estate of the deceased-For
fatal accident of wife, earning husband
is
liable
to
be
treated
as
legal
representative of the deceased wifeHeld, deduction of compensation of
claimant by the tribunal cannot be
sustained. (Para 40 and 43)

E. Evidence Act, 1872 - Proof of age -
Relevance of Oral Testimony - Absence of
School Certificate - Principle to be applied - If
the School certificate is not proved otherwise
corroborated,
other
evidence
like
oral
testimony of PW-1 proving the age of deceased
88 INDIAN LAW REPORTS ALLAHABAD SERIES
38 years at the time of accident, should be
accepted - Finding of Tribunal on the age
reverted - Compensation re-calculated and
fresh award drawn. (Para 44, 46 and 53)

F. Motor Accident Claim - Multiple Claim -
Procedure-Where
there
are
multiple
claims arising out of same accident, the
Tribunal should place all the matters
before the same Tribunal and the same
tribunal should consolidate the matter and
decide
the
same-Necessary
direction
issued to all the Tribunal. (Para 54)

Appeal disposed of (E-1)

Cases relied on :-

## Text

_Characters 0–39,929 of 58,704. This is a partial read: ask again with offset=39929 for what follows._

12 All. Dharam Veer & Ors. Vs. Kamal Singh & Ors.
87

10. This Court is thankful to all the
learned Advocates and Sri Rastogi, the Law
Officer of the Insurance Company. The record
and proceedings which according to the
knowledge of learned Advocate is kept in PRR
Section be sent to the Tribunal forthwith.
----------
(2020)12ILR A87
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2020

BEFORE

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

First Appeal From Order No. 1194 of 2012

Dharam Veer & Ors. ...Appellants
Versus
Kamal Singh & Ors. ...Respondents

Counsel for the Appellants:
Sri Mohan Srivastava

Counsel for the Respondents:
Sri Rahul Sahai, Sri K.K. Dwivedi, Sri Parihar

A.
Civil
Law-Motor
Accident
Claim-
'Negligence'-Principle
of
'Res
Ipsa
Loquitur' -Meaning - 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 -It can be both intentional or
accidental which is normally accidentalMore 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. (Para 18)

B. Motor Accident Claim - Contributory
Negligence and Composite Negligence -
Difference - 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 -
In case of composite 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. (Para 22 and 23)

C. Motor Accident Claim - Civil Procedure
Code - Section 11 - Res Judicata -
Finding on negligence by Tribunal having
coordinate jurisdiction - If ingredients of
Section 11 of Code are satisfied the later
tribunal should not venture to substitute
its view without new and cogent evidence
produced before it - Tribunal committed
an error in giving its fresh finding on
negligence for the same accident - Held,
the earlier judgment would be binding on
the subsequent Tribunal deciding between
the same parties. (Para 29 and 33)

D.
Motor
Vehicle
Act,
1988-Civil
Procedure Code - Section 2(11) - Legal
Representative-Meaning-Entitlement of
husband
of
deceased
to
receive
compensation-Legal
representative
means any person who in law represents
the estate of a deceased person, and
includes any person who inter meddles
with the estate of the deceased-For
fatal accident of wife, earning husband
is
liable
to
be
treated
as
legal
representative of the deceased wifeHeld, deduction of compensation of
claimant by the tribunal cannot be
sustained. (Para 40 and 43)

E. Evidence Act, 1872 - Proof of age -
Relevance of Oral Testimony - Absence of
School Certificate - Principle to be applied - If
the School certificate is not proved otherwise
corroborated,
other
evidence
like
oral
testimony of PW-1 proving the age of deceased
88 INDIAN LAW REPORTS ALLAHABAD SERIES
38 years at the time of accident, should be
accepted - Finding of Tribunal on the age
reverted - Compensation re-calculated and
fresh award drawn. (Para 44, 46 and 53)

F. Motor Accident Claim - Multiple Claim -
Procedure-Where
there
are
multiple
claims arising out of same accident, the
Tribunal should place all the matters
before the same Tribunal and the same
tribunal should consolidate the matter and
decide
the
same-Necessary
direction
issued to all the Tribunal. (Para 54)

Appeal disposed of (E-1)

Cases relied on :-
1. F.A.F.O. No. 1818 of 2012; Bajaj Allianz
General Insurance Co. Ltd. Vs Smt. Renu Singh
& ors. decided on 19.7.2016
2. Archit Saini & anr. Vs Oriental Insurance
Company Ltd.; AIR 2018 SC 1143
3. Khenyei Vs New India Assurance Company
Limited & ors. ; 2015 LawSuit (SC) 469
4. T.O. Anthony Vs Karvarnan & ors. , (2008) 3 SCC 748
5. Bijoy Kumar Dugar Vs Vidhyadhar Datta &
ors. , 2006 (1) TAC 969 SC
6. Gurmeet Kaur & ors. Vs Mohinder Singh &
ors., 2006 (3) TAC 958 SC
7. First Appeal From Order No. 2443 of 2013;
Jai Devi alias Jaleba Vs Vidup Agrahari & ors.
decided on 9.10.2016
8. United India Insurance Co. Ltd. vs Laljibhia
Hamirbhai & ors.; 2007 (1) G.L.R. 633
9. New India Assurance Co. Ltd. Vs Vikas Sethi;
2020 SCC OnLine ALL 921
10. Canara Bank Vs N.G. Subbaraya Setty;
(2018) 16 SCC 228
11. United India Insurance Co. Ltd. Vs Anarwati;
2017 (2) ADJ 421
12. Ishwardas Vs St. Of M.P. & ors.; AIR 1979
SC 551
13. F.A.F.O. No. 164 of 2005; Oriental
Insurance Co Ltd Vs Bhag Singh & ors. decided
on 08.07.2019
14. GSRTC v. Ramanbhai Prabhatbhai, AIR 1987
SC 1690
15. Guru Govekar Vs Respondent: Filomena F.
Lobo & ors.; AIR 1988 SC 1332
16. Laxmidhar Nayak & ors. Vs Jugal Kishore
Behera & ors.; AIR 2018 SC 204
17. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (S.C.)
18. A.V. Padma Vs Venugopal; 2012 (1) GLH
(SC), 442
19. Smt. Hansaguti P. Ladhani Vs The Oriental
Insurance Company Ltd.; 2007(2) GLH 291

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

1. Heard Sri Mohan Srivastav, learned
counsel for the appellant and Sri Rahul
Sahai assisted by Shri Parihar, learned
counsel for the respondent- Insurance
company Ltd. The owner and the driver
have absented themselves though served.

2. This appeal, at the behest of the
claimants has been preferred against the
award and order dated 21.12.2011 passed
by Motor Accident Claims Tribunal,
Bulandshahr in M.A.C.P. No.274 of 2009
decided by Sri Vijay Kumar Agarwal, HJS.
I normally do not subscribe to theory of the
writing name of presiding officer but the
facts in which and the manner in which the
tribunal deal with the issues before it has
prompted me to write his name.

3. The factual scenario relates to an
accident having taken place on 26th of
February 2009 at about 9.00 pm when the
deceased along with her husband and other
person namely Harendra Singh and others
were travelling from village where they
stayed to village Hissail in Maruti Van
No.DL 1CC/2521 driven by her husband
namely claimant No.1. When this maruti
12 All. Dharam Veer & Ors. Vs. Kamal Singh & Ors.
89
van reached G.T. Road near village
Ranauli, a tanker coming from the opposite
direction
which
was
driven
very
negligently and carelessly in gig gag
manner suddenly turned to its right side of
the road and rammed into the maruti van
caused the accident in which wife of
Harendra Singh, wife of claimant No.1 and
one another person namely child sustained
multiple injuries. Wife of Harendra Singh
died in the Government Hospital at Khurja
on the very same day. The wife of the
present claimant No.1 suffered the pain for
almost about three months and was
hospitalised. She died out of these injuries
only and there is no evidence on record.

4. F.I.R. of the incident was lodged on
26.2.2009 at 11.15 at the police station Arania
as Case Crime No. 48 of 2009 was registered
against the driver of the tanker. The chargesheet was laid against the driver of the tanker.
The deceased was a household lady and along
with it was engaged with animal husbandry and
was earning Rs.3000/- per month. The
opponent No.1 and 2 filed joint written
statements denying the version of the claimants
and brought on record that the vehicle was
insured with Reliance General Insurance Co.
which
was
valid
from
16.12.2008
to
15.12.2009. Reliance General Insurance Co.
denied the version of the claim petition. The
Tribunal framed several issues and came to the
conclusion that the husband of the deceased
namely claimant No.1 who was driving the
vehicle was equally negligent and written the
finding of the contributory negligence thereby
halving the compensation awarded to the
claimants. No other facts are necessary as the
accident has been admitted, the death occurring
out of the injuries is admitted, the appellant
being legal representative is not accepted.

5. In this background, the matter
requires to be considered. The appellants
herein examined claimant No.1 and P.W. 2
so as to bring home their claim. The driver
and the owner did not appear before the
tribunal
in
any
of
the
matters.
Unfortunately, this matter was subsequently
conducted.

6. The appellants are the legal
representatives rather heirs of the deceased.
The appellants have felt aggrieved by the
finding of tribunal on the issue of
negligence and compensation as far as
decision of the tribunal on other issues is
concerned they have attained finality.

7. The accident having taken place
and the involvement of car in which
claimants were travelling and truck owned
by respondent no 2 and insured by
respondent no 3 herein is not in dispute. It
is necessary to mention a fact here that
MACP Case no.166 of 2010 concerning
this very appellant who had claimed the
compensation for death of his son the
insurance company settled the dispute in
Lok Adalat on 23.10.2011. One more
aspect requires to be mentioned here that
out of the said accident one other claim
petition was preferred being MACP No.104
of 2009 preferred by Harinder Singh and
others v. Kamal Singh and others under
Section 166 of the Motor Vehicles Act1988.
The matter was tried before another
tribunal namely Anupam Goyal who
decided the lis on 25.2.2011 holding the
driver of the truck solely negligent and
holding all the three respondents herein
responsible to compensate the claimants. .
A mention requires to be made here that
this award was placed on the records of the
tribunal whose award is impugned in this
appeal by the claimants which finds a
mention even in the award despite that
without discussing the findings recorded by
the coordinate tribunal and why the tribunal
90 INDIAN LAW REPORTS ALLAHABAD SERIES
did not want to follow the same and decide
the issue of negligence afresh the tribunal
passed the impugned award

8. The issue of negligence was
decided in favour of the appellants herein
in the earlier claim petition which arose out
of the same accident and the Insurance
Company has not challenged the liability
imposed on them by the Tribunal nor they
have challenged the decision holding the
driver of the truck solely negligent in the
earlier claim petition and they have as
narrated hereinabove settled one another
claim concerning the appellant no.1 herein.

9. The appellants are the legal
representatives rather heirs of the deceased.
The appellants have felt aggrieved as the
tribunal where the claim for accidental
death of wife of appellant number one and
mother of other appellants was filed
decided the issue of negligence once again
without following the decision of the
coordinate tribunal, The tribunal decided
the lis without appreciating that the
appellant number one had not come before
it to claim damages for injuries incurred by
him in the accident. In the alternative it is
submitted that even if the issue of
negligence was decided again the tribunal
has lost sight of the fact that the driver of
the truck did not step in the witness box nor
did the owner examine any witness to hold
the driver of the car to be partly negligent
when admittedly the driver of the truck was
charge-sheeted.

10. It is a fact brought on record that
and proved by oral testimony that the truck
rammed into the car causing 3 casualties of
persons travelling in the maruti van and
caused injuries to other inmates of the car .
The fact that the claimant number one was
the driver of the car could not be the
ground for halving the compensation as he
and other claimants had claimed as legal
representative of the deceased and qua the
legal heirs it was a case of composite
negligence reliance is placed on the
decision of Apex Court in Khenyei v. New
India Assurance Co. Ltd. & others (infra)
and Civil Appeal No.4244 of 2015 decided
on 07.5.2015 and decision of this High
Court titled UPSRTC Vs Sri Ram Lakhan
Singh and 2 others, decided in FAFO
No.881 of 2015 dated 8.4.2015 D to bring
home his submission that that the tribunal
could not have re-evaluated the facts and
was bound by principles of res judicata
propounded by the High Court and the
Apex Court and even if the tribunal wanted
to decide the issue of negligence afresh it
should have given its reasons for taking a
different view which has not been done
which makes the judgment vulnerable and
requires to be set aside as far as it decide
against the appellant no 1 on the issue of
negligence. It is further submitted that the
compensation awarded is also not in
consonance with principles enunciated with
this high court and the Apex Court. It is
further contended that the rate of interest
granted by the tribunal is also not in
consonance with the principles laid down
by this Court and the Apex Court.

11. Per Contra Shri Rahul Sahai
assisted by Shri Parihar ld advocate for the
insurance company has submitted that the
tribunal has not committed any error in
deciding the issue of negligence as the
driver of the car was before it, he has relied
on two decisions of the Gujarat high court
titled
in
G.S.R.T.C.
Vs.
Rajeshbhai
Shankarlal Patel in First Appeal no. 3068 of
2013 and allied matters decided on
5.2.2014 (Coram Justice Mr. Shah and R.P.
Dholaria) and in case of United India
Insurance Company Limited v. Kiritikumar
12 All. Dharam Veer & Ors. Vs. Kamal Singh & Ors.
91
Tulsibhai Patel and 2 others, FA No.1450 of
2016, dated 1.9.2016 (Coram justice M R
Shah and Jst AS Supehia) and has
contended that as the accident occurred in
the middle of road the tribunal was justified
in not following the decision rendered by
coordinate tribunal as before the earlier
tribunal
it
was
case
of
composite
negligence whereas in this case the driver
was before it .The insurance company was
justified in raising this issue before the
tribunal. It is further submitted that the
compensation has be halved as driver of the
car was the owner of the car and even if it
was case of composite negligence the
tribunal has taken a absolute practical
approach as the insurance company would
have to recover from the driver and owner
of car namely the claimant number one. It
is
further
pleaded
that
there
was
contributory negligence of the driver of car
namely appellant no 1and the amount does
not require to be enhanced.

12. Heard the learned Advocates for
the parties.

13. Recently, the Apex Court in
Sudarsan Puhan Vs.Jayanta Ku. Mohanty
and another etc., AIR 2018 SC4662, and in
the case of UPSRTC Vs. Km. Mamta and
others, reported in AIR 2016 SCC 948, has
held that appeal is continuation of the
earlier proceedings, and High Court is
under legal obligation to decide all the
issues of lis and decide it by giving reasons.

14. In view of the rival contentions
raised this court is called upon to decide (a)
whether the issue of negligence was rightly
decided by the tribunal again on the same
set of facts or was it bound by principles of
res judicata, (b) whether the court in this
appeal will also have to decide whether
claimant no1 was negligent in driving the
car or otherwise , (c) whether it is a case of
composite negligence qua claimant no I/
appellant no 1 though he was the driver and
the deduction from his entitlement is just
and proper or otherwise, (d) The question is
whether
claimant
no1
is
legal
representative and hence entitle to sue if
yes whether the deduction by tribunal was
justified.
The
claimants
have
even
challenged adequacy of the compensation
awarded and interest awarded thereon.

15. Before I proceed to decide this
appeal from the facts and law as is all the
questions will have to be answered in
favour of the appellants herein for the
reasons mentioned herein below at the
outset it is noticed that the tribunal has
committed an error which is apparent on
the face of the record and is against the
settled principles of law as would be
demonstrated hereinafter

16. I would deal with each issue
separately under separate heads namely
negligence applicability of doctrine of res
judicata the compensation to be awarded and
entitlement of the claimants. The doctrine of
res judicata applies to a case where the suit or
an issue has already been heard and finally
decided by a Court. In the case of
abandonment also this doctrine would apply.

17. In the aforesaid background this
Court feels that it would be necessary to show
that the thinking of the tribunal is bad but
perverse therefore though I am convinced that
principles of res judicata apply. I have
ventured to discuss the finding of negligence
which is supported by learned counsel for
insurance company so as to contend that
drivers of both the vehicles were negligent.

ISSUE
OF
NEGLIGENCE
EVEN
IN
ABSENCE
OF
92 INDIAN LAW REPORTS ALLAHABAD SERIES
APPLICABILITY OF DOCTRINE OF
RES JUDICATA AND WHETHER THE
SAME IS RIGHTLY DECIDED BY
THE TRIBUNAL:

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

19. 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
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
12 All. Dharam Veer & Ors. Vs. Kamal Singh & Ors.
93
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
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."

20. The negligent act must contribute
to the accident having taken place. The
Apex Court recently has considered the
principles of negligence in case of Archit
Saini and Antother Vs. Oriental Insurance
Company Limited, AIR 2018 SC 1143.

21. The Apex Court in Khenyei Vs.
New India Assurance Company Limited &
Others, 2015 LawSuit (SC) 469 wherein
the Apex Court while considering the
question of joint and several liability held
as under:

"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
94 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

22. Thus, it can be seen that 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.

23. The Apex Court in T.O. Anthony
v. Karvarnan & Ors. 2008 (3) SCC 748 has
held that in case of composite 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."

 Emphasis added.

24. In this case it is seen that the
driver and the owner of truck have though
appeared before the tribunal have not
examined themselves on oath. The claimant
no. 1 examined himself and was at length
cross examined by the advocate of the
insurance
company.
The
claimants
examined Hari Om sharma as p,w.2. The
respondents have not examined any witness
on oath. The insurance company having not
proved fact of negligence on the part of the
driver of the car, the insurance company
cannot be benefitted. Considering the
12 All. Dharam Veer & Ors. Vs. Kamal Singh & Ors.
95
submission of Sri Sahai that the tribunal
has rightly decided the issue of negligence
while examining the facts no doubt there is
head on collision between the car and
tanker No.UP 18 AD 9820 at 9 pm at night
which caused the death of three people, the
reply filed by the driver and the owner was
one of denial and had contended that it was
the fault of Dharamveeer, driver of the
maruti car no. DL 01 CC2521, Tribunal
first narrates its feeling that as there was no
mention of Dharveer nor he had filed any
claim petition for claiming compensation
for his injury he may or may not have been
travelling in the vehicle however, the
tribunal believes his oral testimony he has
in his ocular version stated that the driver
of the truck came on the wrong side and
dashed with the maruti car causing severe
injuries to his son Narendra and his wife
Raj Kumari, the FIR was lodged by brother
in law of Harendra ,basis of the chargesheet the tribunal notes that one another
claim petition was already decided and the
judgment was placed before him as exb 52
C2. The tribunal goes on the assumption on
whether Dharamveer was traveling in the
vehicle or not. The tribunal thereafter
discusses that FirR is not a encyclopaedia
of the incident accepts that chargesheet was
laid against the driver of the tanker/truck .
It was argued before the tribunal by
insurance company that it was case of equal
negligence of drivers of the both the
vehicles. The tribunal goes on to take
different view on two counts it relied on the
site plan and the fact that there was
decision
in
Bijoy
Kumar
Dugar
v.
Vidhyadhar Datta and others, 2006 (1) TAC
969 SC and Gurmeet Kaur and others v.
Mohinder Singh and others, 2006 (3) TAC
958 SC and came to the conclusion that the
driver of the vehicle namely car was
equally negligent unfortunately the tribunal
missed out the following aspects (i) the
claimants/ appellants were the heirs of the
deceased and they were not claiming for
injuries caused to them this aspect has been
missed by the tribunal the second aspect of
holding the driver of the car negligent also
is against the principles of deciding
contributory
negligence
recently
the
principles for holding drivers negligent or
rather holding a driver of one vehicle to
have
contributed
was
considered
contributory negligence has to be proved
and to be shown and demonstrated that the
person who has to be held to have
contributed to the accident having taken
place was co-author of the accident in this
case just because the tribunal has come to
the conclusion that the driver of the car was
negligence only on the basis of the site plan
which was not even proved before it. In this
case the tribunal was having the evidence
of eye witnesses recently the Apex Court in
the case of Archit Saini (supra) has laid
down the guidelines as far as what would
amount to contributory negligence.

25. No witnesses has been examined
who have deposed in favour of the driver of
the truck as can be seen the driver of the
truck was driving a heavier vehicle and was
under a duty to slow down it is not brought
on record whether he had slowed down the
vehicle it is not always that vehicles which
have had head on collision both the drivers
would be or rather co authors of the accident
the tribunal had the choice of referring to the
findings of fact based on oral testimony of
one another witnesses who was in the car
but there is no discussion whatsoever by the
tribunal. In that view of the matter the
judgment of Gujarat High Court cited by the
counsel for respondent will be of no aid as
in the case on hand no other evidence was
brought on record for differing as was the
fact in the facts proved before the tribunal
the decision of Gujarat High Court.
96 INDIAN LAW REPORTS ALLAHABAD SERIES

26. A reference to the decision of this
High Court in FAFO No.2443 of 2013, Jai
Devi alias Jaleba v. Vidup Agrahari and
others decided on 9.10.2016 would be
relevant for our purpose as the findings of
fact in the holding the driver of motorcycle
to be negligent had been upturned by the
high court .Facts of Jai Devi (supra) were
identical and the impact in this case also
was such that there were three people who
subsequently succumbed to the injures in
that view of the matter and in absence of
any proof to the contrary, the tribunal has
fallen in great error in relying on the
decisions f the Apex Court without
considering facts of the case ratio of a
decision cannot be applied without factual
discussion the facts in the case relied by the
tribunal were different there accident was
between vehicles of equal magnitude
namely trucks the finding based on para 5
of the decision of Gurmeet Kaur (Supra)
cannot be sustained as the ld tribunal has
not applied the ratio properly the Apex
court was concerned with two fast moving
heavy vehicles hence the finding of tribunal
cannot be sustained. The decision in
Vijaykumar also could not have been
followed . There is no finding returned by
the tribunal as to the facts the cryptic
finding that in view of decision of Apex
court both are held negligent this has gone
to the root of the matter in causing
miscarriage of justice.

27. Qua applicability Of Doctrine
Of Res Judicata where Decision On
Negligence Was Decided By competant
Tribunal in Claim Arising Out Of The
Same Accident :

28. Issue of applicability of Res
Judicata falls in the category of mixed
question of law and facts, and applicability
depends on evidence led by parties. The
doctrine applies even if the decision by
earlier court is right or wrong but if it has
attainted finality between parties the
doctrine shall apply and the issues decided.

29. A vex question baffles tribunals so
far the issue of negligence is concerned,
where the claimant has produced a copy of
decision of a tribunal where issue of
negligence is decided earlier by the Motor
Accident Claim Tribunal for the same
accident wherein, the issue of negligence
has been decided on merits and the
Tribunal comes to the conclusion that,
"...considering documentary evidence and
also considering cited cases in respect of
composite negligence, I come to the
conclusion that impugned accident took
place because of composite negligence on
the part of the drivers of both the offending
vehicle trucks, because on scrutiny of the
documentary evidence produced on record,
there is not found any negligence on the
part of the injured person, and hence, I
answer issue no.1 in the affirmative". Then
in such situation what should it do? In such
situation the issue of negligence decided by
the tribunal having coordinate jurisdiction
will operate as res judicta or rather
collateral estoppel where the parties in two
Petitions are same except the claimant or
the claimants as the case may be and it is
proved that, the accident arose out of same
accident and all the ingredients of section
11 of the Code Of Civil Procedure 1908 are
fulfilled and except the claimant, or
claimants the decision by the Tribunal in
Petition decided earlier, on merits where all
the parties are before it would operate as
'res-judicata' as far as issue which has been
decided
for
example
negligence
in
subsequent petition. In light of the decision
of the High Court of Gujarat in " United
India Insurance Co. Ltd. v/s. Laljibhia
Hamirbhai & Ors.,(INFRA) the issue of
12 All. Dharam Veer & Ors. Vs. Kamal Singh & Ors.
97
negligence will operate as resjudicta. It is
held in the said case that where the parties
in two Petitions are same, except the
claimant, the decision by the Tribunal in
Petition decided earlier, would operate as
'res-judicata' as fas as issue of negligence is
concerned in subsequent petition. It can be
seen that High Court of Gujarat in United
India Insurance Co. Ltd. v/s. Laljibhia
Hamirbhai & Ors2007 (1) G.L.R. 633 has
elaborately discussed the applicability as
well as non applicability of the said
doctrine to claims arising out of same
accident but being tried by different
tribunals. Recently, similar question arose
before this High Court in the litigation
titled New India Assurance Co. Ltd. Vs.
Vikas Sethi 2020SCC OnLine ALL 921 has
delved again on the principles applicable
for applying the doctrine where a particular
issue being already dealt with and decided
on merits could be revisited by subsequent
tribunal or whether principle of res judicata
in a subsequent claim would apply on an
issue of fact which in the former
proceedings was decided by a forum of
competent
jurisdiction
between
same
parties. The Court referred to Section 169
of Motor Vehicle Act, 1988 and Rules 209,
215, 220 of U.P. Motor Vehicle Rules, 1998
while deliberating over the matter and
observed that that the MACT is obligated
to frame the issues on which the right
decision of the claim appears to depend.
The Court relied on the judgment titled
Canara Bank v. N.G. Subbaraya Setty,
(2018) 16 SCC 228 and held that the
findings of MACT Lucknow were not
justifiable as it should have considered the
objections of the appellant and weighed the
same in accordance with law. The principle
of res judicata was applicable between the
parties and the same should have been
applied on the aspect of proportional
liability of both the parties, accordant with
the earlier judgment/award. The Court
modified the award rendered by MACT
Lucknow by fixing the liability to pay
compensation equally to both the appellant
and respondent. The consistent view is that
if ingredients of section 11 of Code are
satisfied the later tribunal should not
venture to substitute its view without new
and cogent evidence produced before it.

30. Reference to the decision of this
high court in United India Insurance Co.
Ltd. Vs. Anarwati, 2017 (2) ADJ 421 where
the undersigned was signatory and where
the counsel for the insurance company did
not disclose that similar matter was decided
by claims tribunal and issue of negligence
was decided. The Appellate Court decided
the issue of contributory negligence and
later when it was found that the insurance
company had not challenge the decision
wherein the issue of negligence qua the
driver of the tractor being held to be solely
negligent was already decided and the
contention before the appellate court that
the vehicle was not involved could not have
been permitted to be agitated, .(Similar is
the case before us)

31. In the case titled Ishwardas V/S
State Of Madhya Pradesh & Ors. reported
in 1979 SC 551, the Apex Court has held
that in order to sustain the plea of resjudicata, it is not necessary that all the
parties to the litigations must be common.
All that is necessary is that the issue should
be between the same parties or between the
parties under whom they or any of them
claimed.

32. A similar issue arose before this
High court in case titled Oriental Insurance
Co Ltd vs Bhag Singh and Others, First
Appeal From Order No. - 164 of 2005,
wherein the court held
98 INDIAN LAW REPORTS ALLAHABAD SERIES

"2. This appeal at the behest of
Insurance Company is covered by a
Division Bench judgment of this Court
reiterated and followed in First Appeal
From Order No.896 of 2005 (United India
Insurance
Company
Limited
Versus
Smt.Anarwati
&
Others)
decided
on
20.10.2016 wherein it has been held that as
far as issue of negligence is concerned, the
judgment in one matter has to be followed
by the subsequent Tribunal. Paragraph 19
of the Division BenchJudgment passed in
First Appeal From Order No.896 of 2008
and Paragraph 14 of the judgment passed
in First Appeal From Order No. 3096 of
2004 reads as follows :

"19. The driver of motorcycle
cannot be said to have contributed to the
accident having taken place. We have
decided
the
matter
of
contributory
negligence
as
learned
Advocate
for
appellant did not disclose that in the case
of Baladeen and others Vs. Tofan Singh
andanother, M.A.C.P. No.501 of 2002,
involving same vehicles being Tractor
No.UP 75-A/1732,the driver of Tractor was
held responsible for alleged accident.