# Gopi Charan v. Smt. Rekha Dwivedi & Anr

- **Citation:** (2022) 4 ILRA 233
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-04
- **Case number:** First Appeal From Order No. 1176 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopi-charan-v-smt-rekha-dwivedi-anr-48294
- **Pages:** 15

## Headnote

(A) Torts Law - Motor vehicle Act,1988 -
Section 173 - Contributory negligence -
Composite negligence - Pillion rider -
Principle of " res ipsa loquitur" - " the
things speak for itself" - Mere failure to
avoid
the
collision
by
taking
some
extraordinary precaution, does not in
itself constitute negligence - Two Pillion
riders did not mean that the rider has
contributed in the accident - vehicle which
is being driven should show more care and
caution (Cardinal principle).(Para - 16, 23,
27)

(B) Torts Law - Principle of Contributory
negligence
-
a
person
who
either
contributes or is co author of the accident
would be liable for his contribution to the
accident
having
taken
place
-
that
amount
will
be
detected
from
the
compensation payable to him if he is
injured - to legal representative if he dies
in the accident .(Para - 17)

(C) Torts Law - Principle of Composite
negligence - liability is joint and several -
claimant entitled to seek compensation
either from the driver of both the vehicles
or he may seek entire compensation from
any of the drivers .(Para - 28)
234 INDIAN LAW REPORTS ALLAHABAD SERIES
(D) Tax Law - The Income Tax Act, 1961-
Section 194A (3) (ix) - total amount of
interest, accrued on the principal amount
of compensation is to be apportioned on
financial year to financial year basis - 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' - if the
amount of interest does not exceeds
Rs.50,000/- in any financial year - registry
of Tribunal is directed to allow the
claimants
to
withdraw
the
amount
without producing the certificate from the
concerned Income-Tax Authority. (Para -
39)

Elder son of appellant - along with his mother
and younger brother aged 6 were going by
motorcycle - Tata Jeep came from opposite
direction - driven by its driver - rashly and
negligently and dashed with the motorcycle -
caused accident, 3 persons scummed to the
injuries sustained due to the accident - died on
the spot - claimant ( father of two deceased and
husband of third) - filed claim petition.(Para - 7)

HELD:-Vehicle of the deceased did not meet
with the accident because the minor child was
accompanying the diseased as a pillion on the
vehicle. Accident cannot be said to have
occurred because of negligence of the rider of
two vehicles. Mother who was riding on the bike
as pillion sustain injuries . Husband is entitled to
compensation as he is class II heir and , non
joinder of the owner and deduction of the
amount does not arise . Claimants entitled to Rs
2,25,000/- for deceased ( Avanish) , Rs.
5,59,000/- for deceased (Savitri) and Rs.
49,00,000/- for deceased (Manish Singh) .
Appellants entitled to the rate of interest at 7.5
% per annum. (Para - 25,35)

Appeals partly allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,891 of 50,730. This is a partial read: ask again with offset=39891 for what follows._

4 All. Gopi Charan Vs. Smt. Rekha Dwivedi & Anr.
233
behalf of the claimants as regards the rate
of interest. The Tribunal had awarded
interest at the rate of 12% p.a. but the same
had been too high a rate in comparison to
what is ordinarily envisaged in these
matters. The High Court, after making a
substantial enhancement in the award
amount, modified the interest component at
a reasonable rate of 7.5% p.a. and we find
no reason to allow the interest in this
matter at any rate higher than that allowed
by High Court."

23. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount along with additional amount
within a period of 12 weeks from today
with interest at the rate of 7.5% 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.

24. We are thankful to learned
counsels for the parties for ably assisting
the Court

25. The lower court record be sent
back,
if
here,
to
the
tribunal
for
disbursement.

26. A copy of this order be sent to
Shri P.C. Mishra, Additional District
Judge/MACT, Court No.3, Moradabad, if
he is in service so that he may be more
careful in future.
----------

(2022)04ILR A233
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2022
BEFORE

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

First Appeal From Order No. 1176 of 2007
&
First Appeal From Order No. 1177 of 2007
&
First Appeal From Order No. 1179 of 2007

Gopi Charan ...Appellant
Versus
Smt. Rekha Dwivedi & Anr. ...Respondents

Counsel for the Appellant:
Sri Anurudh Chaturvedi

Counsel for the Respondents:

(A) Torts Law - Motor vehicle Act,1988 -
Section 173 - Contributory negligence -
Composite negligence - Pillion rider -
Principle of " res ipsa loquitur" - " the
things speak for itself" - Mere failure to
avoid
the
collision
by
taking
some
extraordinary precaution, does not in
itself constitute negligence - Two Pillion
riders did not mean that the rider has
contributed in the accident - vehicle which
is being driven should show more care and
caution (Cardinal principle).(Para - 16, 23,
27)

(B) Torts Law - Principle of Contributory
negligence
-
a
person
who
either
contributes or is co author of the accident
would be liable for his contribution to the
accident
having
taken
place
-
that
amount
will
be
detected
from
the
compensation payable to him if he is
injured - to legal representative if he dies
in the accident .(Para - 17)

(C) Torts Law - Principle of Composite
negligence - liability is joint and several -
claimant entitled to seek compensation
either from the driver of both the vehicles
or he may seek entire compensation from
any of the drivers .(Para - 28)
234 INDIAN LAW REPORTS ALLAHABAD SERIES
(D) Tax Law - The Income Tax Act, 1961-
Section 194A (3) (ix) - total amount of
interest, accrued on the principal amount
of compensation is to be apportioned on
financial year to financial year basis - 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' - if the
amount of interest does not exceeds
Rs.50,000/- in any financial year - registry
of Tribunal is directed to allow the
claimants
to
withdraw
the
amount
without producing the certificate from the
concerned Income-Tax Authority. (Para -
39)

Elder son of appellant - along with his mother
and younger brother aged 6 were going by
motorcycle - Tata Jeep came from opposite
direction - driven by its driver - rashly and
negligently and dashed with the motorcycle -
caused accident, 3 persons scummed to the
injuries sustained due to the accident - died on
the spot - claimant ( father of two deceased and
husband of third) - filed claim petition.(Para - 7)

HELD:-Vehicle of the deceased did not meet
with the accident because the minor child was
accompanying the diseased as a pillion on the
vehicle. Accident cannot be said to have
occurred because of negligence of the rider of
two vehicles. Mother who was riding on the bike
as pillion sustain injuries . Husband is entitled to
compensation as he is class II heir and , non
joinder of the owner and deduction of the
amount does not arise . Claimants entitled to Rs
2,25,000/- for deceased ( Avanish) , Rs.
5,59,000/- for deceased (Savitri) and Rs.
49,00,000/- for deceased (Manish Singh) .
Appellants entitled to the rate of interest at 7.5
% per annum. (Para - 25,35)

Appeals partly allowed. (E-7)

List of Cases cited:-

1. U.P.S.R.T.C. Vs Km. Mamta & ors., AIR 2016
SC 948

2. Bajaj Allianz General Insurance Co.Ltd. Vs
Smt. Renu Singh & , F.A.F.O. No. 1818 of 2012
3. Patel Roadways & anr. Vs Manish Chhotalal
Thakkar &, 2001 ACJ 180

4. United India Insurance Co. Ltd. Vs Kiritikumar
Tulsibhai Patel, First Appeal No.1450 of 2016

5. Khenyei Vs New India Assurance Co. Ltd. &
&, 2015 LawSuit (SC) 469

6. K. Anusha Vs Regional Manager, Shriram
General Insurance Co. Ltd., 2021 (4) TAC 341

7. Archit Saini & anr. Vs Oriental Insurance Co.
Ltd., AIR 2018 SC 1143

8. Mohammad Siddique & anr. Vs National
Insurance Co. Ltd. & &, 2020 (3) SCC 57

9. Bijoy Kumar Dugar Vs Bidyadhar Dutta & &,
2006 (1) TAC 969

10. Manju Devi's case, 2005 (1) TAC 609 =
2005 AICC 208 (SC)

11. Munna Lal Jain & anr. Vs Vipin Kumar
Sharma & &, 2015 (4) AWC 3845 (SC)

12. National Insurance Co. Ltd. Vs Mannat Zohal
& &, 2019 (2) TAC 705 (SC),

13. A.V. Padma Vs Venugopal, 2012 (1) GLH
(SC), 442

14. Smt. Hansaguri P. Ladhani Vs The Oriental
Insurance Co. Ltd., 2007(2) GLH 291

15. Smt. Sudesna & anr. Vs Hari Singh & anr. ,
F.A.F.O.No.23 of 2001

16. Bajaj Allianz General Insurance Co. Pvt. Ltd.
Vs U.O.I. & ors.

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

1. Heard Sri Anurudh Chaturvedi,
learned counsel for the appellant, Sri S.K.
Mehrotra,
learned
counsel
for
the
respondent-Insurance
Company
and
4 All. Gopi Charan Vs. Smt. Rekha Dwivedi & Anr.
235
perused the record. None appears for the
owner or driver of offending vehicle.

2. These appeals, under Section 173
of Motor Vehicles Act, 1988 (hereinafter
referred to as ''Act'), are preferred at the
behest of the claimant challenging the
judgment and award dated 12.01.2007
passed
by
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.3, Kanpur Dehat (hereinafter referred to
as 'Tribunal') in M.A.C.P. Nos.398/2005,
399/2005 and 400/2005 (the Tribunal has
passed separate awards).

3. The challenge to the decision
regarding negligence of deceased and
compensation for the death of two children
of the appellant and his wife in the road
accident which occurred on the fateful day
are the twin issues posed for our decision.
The finding of Tribunal about liability of
insurance company has attained finality and
there is no dispute about the same. The
accident having caused death of three
persons is not in dispute. The involvement
of two vehicles is not in dispute. The age of
deceased is also not in dispute before us.

4. The parties are referred to as
claimant/appellant
and
the
respondent/Insurance company.

5. The Apex Court in UPSRTC Vs.
Km. Mamta and others, reported in AIR
2016 SC 948, has held that all the issues
raised in the memo of appeal are required
to be addressed and decided by the first
appellate court.

6. The issues before us are to decide
the twin issues posed for our consideration
namely (1) Whether deceased driving
motorcycle had contributed to the accident
having taken place and, therefore, the
deduction of the compensation for death of
all three by the Tribunal is justified or not?
(2) (a) The quantum of compensation
awarded requires any re-computation (b)
Whether percentage of interest granted
requires interference by this Court or not?

7. The brief facts as culled out from
record and necessary for our purpose are
that on 17.5.2005 at about 4:30 p.m. elder
son of appellant along with his mother and
younger brother aged 6 were going from
their house to Bangarmau by motorcycle,
bearing no.UP70AU-2377. The deceased
along with his mother and younger brother
was plying his motorcycle and when he
reached near Udaipur crossing in the
district Kanpur Nagar, Tata Jeep, bearing
no.UP77C-3262
came
from
opposite
direction which was being driven by its
driver rashly and negligently and dashed
with the motorcycle and caused the
accident, 3 persons scummed to the injuries
sustained due to the accident and died on
the spot. The claimant, who is father of two
deceased and husband of third, filed claim
petition. Owner of the Jeep and its
Insurance company filed their respective
written statements which were of denial.

8. The claimant examined himself as
PW1. The documentary evidence was filed
and proved so as to prove that accident
occurred due to rash and negligent driving
of Jeep driver. The Tribunal after framing
issues and on conclusion of evidence
returned the finding that as there was head
on collision, both were equally negligent.

9. The appeal, being appeal no.1176
of 2007, pertains to the death of younger
son of the appellant Avanish whose age was
between 6 - 7 years at the time of accident.
Learned
Tribunal
has
considered
contributory negligence of driver of the
236 INDIAN LAW REPORTS ALLAHABAD SERIES
offending Jeep and motorcycle to the tune
of 50% each. The Tribunal awarded Rs.
2,25,000/- but deducted 1/2 from the
calculated compensation and ultimately has
awarded Rs. 1,14,500/- as compensation.
The deduction of 1/2 or 50% was on
account of contributory negligence of the
driver of the motorcycle. These two aspects
are under challenge. The appeal no.1177 of
2007 relates to wife of appellant and appeal
no.1179 of 2007 is preferred by the father
of the deceased, who was driving the
vehicle.

10. Learned Counsel for the appellant
submitted that there were three deaths in
the accident. The deceased was younger
brother of the driver of motorcycle. The
minor child was pillion rider and he had not
contributed to the accident having taken
place, hence, there was no justification for
deduction of 50% compensation to be
granted to claimant by the Tribunal. It was
not a case of contributory negligence qua
deceased child. It is next submitted by the
learned Counsel that the Tribunal has not
awarded any sum for love and affection and
mental agony to the appellant/claimant,
who was the father of the child. The mother
of the deceased was also not a contributory
to the accident having taken place qua her,
it was a case of composite negligence
despite that the Tribunal deducted 50%
from the compensation awarded which,
according to the learned Counsel for the
appellant, is bad in the eye of law.

11. Learned Counsel also submitted
that the Tribunal has directed that no
interest shall be paid if payment of
compensation is made by the Insurance
company within 2 months from the date of
award and in case if the same is not
deposited within 2 months, then the
appellant would be entitled to 6% interest
from the date of filing of claim petition.
Learned Counsel submitted that 18%
interest should have been awarded and this
conditional order is against the mandate of
Section 171 of the Act and the said
direction requires to be modified.

12. Learned Counsel for the Insurance
company in F.A.F.O. No.1176 of 2007
vehemently objected to the submission
advanced by the Counsel for appellant and
submitted that the deceased was a child of
7 years of age and he was not earning
member. It is further submitted that the
Tribunal has rightly assessed his notional
annual income at Rs. 15,000/- per years and
damages for funeral expenses are also
granted by the Tribunal. Learned Counsel
submitted that as per II Schedule of Act, the
Tribunal has calculated just compensation
which does not call for any interference by
this Court.

13. The learned Counsel for appellant
has submitted that learned Tribunal has lost
total sight of the fact that it was not a case
of contributory negligence qua 2 persons.
As far as the younger son and wife of
appellant are concerned, it was a case of
composite negligence and not contributory
negligence.

14. It is further submitted by the
learned Counsel for Insurance Company
that In this case, it is an admitted position
of fact that there was collusion between
motorcycle and Jeep. It is further submitted
that learned Tribunal has fixed contributory
negligence of both the drivers to the tune of
50% each. It is not in dispute that the
deceased child and mother were pillion
riders on the motorcycle. They were not
driving the motorcycle yet the Tribunal
deducted
50%
amount
from
total
compensation payable, which is not bad
4 All. Gopi Charan Vs. Smt. Rekha Dwivedi & Anr.
237
and not against the principles of composite
negligence.

15. While dealing with submission on
issue of negligence raised by the learned
counsel for the appellant, it would be
relevant to discuss the principles for
deciding contributory negligence and for
that
the
principles
for
considering
negligence will also have to be looked into.

FINDINGS
ON
ISSUE
OF
NEGLIGENCE

16. The term negligence means failure
to exercise care towards others, which a
reasonable and prudent person would in a
circumstance or take action which such a
reasonable person would not. Negligence
can be both intentional or accidental though
it is normally accidental. More particularly,
it connotes reckless driving and the injured
or
the
claimants
namely
legal
representative of deceased 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.

17. The principle of 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 and that amount will be
deducted from the compensation payable to
him if he is injured and to legal
representatives if he dies in the accident.

18. Reference to certain judicial
precedents would make things clear. 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
238 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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."

19. If we uphold the finding of
negligence of the deceased in those
circumstances, the judgment of Khenyie
(infra) will have to be interpreted in a
different manner. It was the wife, who was
4 All. Gopi Charan Vs. Smt. Rekha Dwivedi & Anr.
239
riding on the back as pillion and she
sustained fatal injuries. It is husband of the
deceased, who is entitled to the claim as he
is the sole survivor. It has not been brought
on record whether the motorcycle owned
by the deceased or his father namely the
claimant-appellant,
then
as
per
the
judgment of Khenyie, no doubt it is the
right of the claimant to claim any of the
tortfeasors, who were the tortfeasors, would
be the rider of the motorcycle and,
therefore, the Insurance company cannot be
directed to recover from the said tortfeasor
and, therefore, the amount has to be
deducted from available corpus.

20. The extent of the share of the
husband should be deducted. However, this
would depend on the fact whether we hold
the
deceased
liable
for
contributory
negligence or not. We are fortified by our
view in the case of Patel Roadways and
another Vs. Manish Chhotalal Thakkar
and others, 2001 ACJ 180, and decision of
the Gujarat High Court in United India
Insurance Company Ltd. Vs. Kiritikumar
Tulsibhai Patel, First Appeal No.1450 of
2016, decided on 1.9.2016.

21. As we are even concerned as to
whether qua the death of two pillion riders
whether deduction is proper or not
reference to case titled Khenyei Vs. New
India Assurance Company Limited &
Others, 2015 LawSuit (SC) 469, is
necessary wherein the Apex Court 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. 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 interse 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
240 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
subject-matter
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
4 All. Gopi Charan Vs. Smt. Rekha Dwivedi & Anr.
241
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

22. The decision of the Apex Court in
Khenyei (Supra) 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.

23. The Hon'ble Supreme Court in K.
Anusha Vs. Regional Manager, Shriram
General Insurance Co. Ltd., 2021 (4) TAC
341, has observed that mere failure to avoid
the collision by taking some extraordinary
precaution, does not in itself constitute
negligence.

24. Reference to the decision of the
Apex Court in Archit Saini and Another
Vs. Oriental Insurance Company Limited,
AIR 2018 SC 1143, can be made wherein
the finding of the Tribunal was upheld by
Apex Court holding that driver of scooter
was not negligent. The findings are
verbatim
referred
as
they
are
very
important for our purpose would be very
relevant for our purpose so as to decide
whether driver of motor cycle has been
rightly held to be negligent to the tune of
50%:

"5.The respondents had opposed
the claim petition and denied their liability
but did not lead any evidence on the
relevant issue to dispel the relevant fact.
The Tribunal after analysing the evidence,
including the site map (Ext. P-45) produced
on record along with charge-sheet filed
against the driver of the Gas Tanker and
the arguments of the respondents, answered
Issue 1 against the respondents in the
following words:

"21. Our own Hon'ble High
Court in a case captioned Lakhu Singh v.
Uday Singh [Lakhu Singh v. Uday Singh,
2007 SCC OnLine P&H 865 : PLR (2007)
4 P&H 507] held that while considering a
claim petition, the Tribunal is required to
242 INDIAN LAW REPORTS ALLAHABAD SERIES
hold an enquiry and act not as criminal
court so as to find whether the claimants
have established the occurrence beyond
shadow of any reasonable doubt. In the
enquiry, if there is prima facie evidence of
the occurrence there is no reason to
disbelieve such evidence. The statements
coupled with the facts of registration of FIR
and trial of the accused in a criminal court
are sufficient to arrive at a conclusion that
the accident has taken place. Likewise, in
Kusum Lata v. Satbir [Kusum Lata v.
Satbir, (2011) 3 SCC 646 : (2011) 2 SCC
(Civ) 37 : (2011) 2 SCC (Cri) 18 : (2011) 2
RCR (Civil) 379] the Hon'ble Apex Court
has held that in a case relating to motor
accident claims, the claimants are not
required to rove the case as it is required to
be done in a criminal trial. The Court must
keep this distinction in mind. Strict proof of
an accident caused by a particular bus in a
particular manner may not be possible to
be done by the claimants. The claimants
were merely to establish their case on the
touchstone of preponderance of probability.
The standard of proof beyond reasonable
doubt could not have been applied.

22.
After
considering
the
submissions made by both the parties, I
find that PW 7 Sohan Lal eyewitness to the
occurrence has specifically stated in his
affidavit Ext. PW 7/A tendered in his
evidence that on 15-12-2011 at about 20.30
p.m. he along with PHG Ajit Singh was
present near Sanjha Chulha Dhaba on the
National Highway leading to Jammu. All
the traffic of road was diverted on the
eastern side of the road on account of
closure of road on western side due to
construction work. In the meantime a
Maruti car bearing No. HR 02 K 0448
came from Jammu side and struck against
the back of Gas Tanker as the driver of the
car could not spot the parked tanker due to
the flashlights of the oncoming traffic from
front side. Then they rushed towards the
spot of accident and noticed that the said
tanker was standing parked in the middle of
the road without any indicators or parking
lights.

23. The statement of this witness
clearly establishes that this was the sole
negligence on the part of the driver of the
Gas Tanker especially when the accident
was caused on 15-12-2011 that too at about
10.30 p.m. which is generally time of pitch
darkness. In this way, the driver of the car
cannot be held in any way negligent in this
accident. Moreover, as per Rule 15 of the
Road Regulations, 1989 no vehicle is to be
parked on busy road.

24. The arguments of the learned
counsel for the respondent that PW 7 Sohan
Lal has stated in his cross-examination that
there was no fog at that time and there were
lights on the Dhaba and the truck was
visible to him due to light of Dhaba and he
was standing at the distance of 70 ft from
the truck being road between him and the
truck and he noticed at the car when he
heard voice/sound caused by the accident
so Respondent 1 is not at all negligent in
this accident but these submissions will not
make the car driver to be in any way
negligent and cannot give clean chit to the
driver of the Gas Tanker because there is a
difference between the visibility of a
standing vehicle from a place where the
person is standing and by a person who is
coming driving the vehicle because due to
flashlights of vehicles coming from front
side the vehicle coming from opposite side
cannot generally spot the standing vehicle
in the road that too in night-time when
there is neither any indicator or parking
lights nor blinking lights nor any other
indication given on the back of the
stationed vehicle, therefore, the driver of
the car cannot be held to be in any way
negligent rather it is the sole negligence on
4 All. Gopi Charan Vs. Smt. Rekha Dwivedi & Anr.
243
the part of the driver of the offending Gas
Tanker as held inGinni Devi case [Ginni
Devi v. Union of India, 2007 SCC OnLine
P&H 126 : 2008 ACJ 1572] , Mohan Lal
case [New India Assurance Co. Ltd. v.
Mohan Lal, 2006 SCC OnLine All 459 :
(2007) 1 ACC 785 (All)] . It is not the case
of the respondent that the parking lights of
the standing truck were on or there were
any other indication on the backside of the
vehicle standing on the road to enable the
coming vehicle to see the standing truck.
The other arguments of the learned counsel
for Respondent 3 that the road was
sufficient wide road and that the car driver
could have avoided the accident, so the
driver of the car was himself negligent in
causing the accident cannot be accepted
when it has already been held that the
accident has been caused due to sole
negligence of the driver of the offending
stationed truck in the busy road. The
proposition of law laid down in Harbans
Kaur case [New India Assurance Co. Ltd.
v. Harbans Kaur, 2010 SCC OnLine P&H
7441 : (2010) 4 PLR 422 (P&H)] and T.M.
Chayapathi case [New India Assurance Co.
Ltd. v. T.M. Chayapathi, 2004 SCC OnLine
AP 484 : (2005) 4 ACC 61] is not disputed
at all but these authorities are not helpful
to the respondents being not applicable on
the facts and circumstances of the present
case. Likewise, non-examination of minor
children of the age of 14 and 9 years who
lost their father and mother in the accident
cannot be held to be in any way detrimental
to the case of the claimants when
eyewitness to the occurrence has proved the
accident having been caused by the
negligence of Respondent 1 driver of the
offending vehicle.

25. Moreover, in Girdhari Lal v.
Radhey Shyam [Girdhari Lal v. Radhey
Shyam, 1993 SCC OnLine P&H 194 : PLR
(1993) 104 P&H 109] , Sudama Devi v.
Kewal Ram [Sudama Devi v.Kewal Ram,
2007 SCC OnLine P&H 1208 : PLR (2008)
149 P&H 444] andPazhaniammal case [New
India Assurance Co. Ltd. v. Pazhaniammal,
2011 SCC OnLine Ker 1881 : 2012 ACJ
1370] our own Hon'ble High Court has held
that ''it is, prima facie safe to conclude in
claim cases that the accident has occurred on
account of rash or negligent driving of the
driver, if the driver is facing the criminal trial
on account of rash or negligent driving.'

26. Moreover, Respondent 1 driver
of the offending vehicle has not appeared in
the witness box to deny the accident having
been caused by him, therefore, I am inclined
to draw an adverse inference against
Respondent 1. In this context, I draw support
from a judgment of the Hon'ble Punjab &
Haryana High Court reported asBhagwani
Devi v. Krishan Kumar Saini[Bhagwani Devi
v. Krishan Kumar Saini, 1986 SCC OnLine
P&H 274 : 1986 ACJ 331] . Moreover,
Respondent 1 has also not filed any
complaint to higher authorities about his
false implication in the criminal case so it
cannot be accepted that Respondent 1 has
been falsely implicated in this case.

27. In view of above discussion, it
is held that the claimants have proved that
the
accident
has
been
caused
by
Respondent 1 by parking the offending
vehicle bearing No. HR 02 AF 8590 in the
middle of the road in a negligent manner
wherein Vinod Saini and Smt Mamta Saini
have died and claimants Archit Saini and
Gauri Saini have received injuries on their
person. Shri Vinod Saini, deceased who
was driving ill-fated car on that day cannot
be held to be negligent in any way.
Accordingly, this issue is decided in favour
of claimants." (emphasis supplied)"

25. We are fortified in our view by the
judgment of the Apex Court in Mohammad
Siddique
and
another
Vs.
National
244 INDIAN LAW REPORTS ALLAHABAD SERIES
Insurance Company Limited and others,
2020 (3) SCC 57, wherein it has been held
that two pillion riders did not mean that the
rider has contributed in the accident. In our
case, if we see the site map, it is clear that
the vehicle of the deceased did not meet
with the accident because the minor child
was accompanying the deceased as a
pillion on the vehicle. The accident cannot
be said to have occurred because of
negligence of the rider of two vehicles. The
mother, who was riding on the bike as
pillion, sustained injuries. Her husband is
entitled to compensation as he is class II
heir and as we upturn the finding of fact as
far as negligence is concerned, non-joinder
of the owner and deduction of the amount
does not arise. The motorcyclist was not
negligent which is proved by (a) oral
testimony (b) F.I.R. (c) Site Plan (d)
Chargesheet (e) evidence by best witness
i.e. driver of Car if Car was a bigger
vehicle (g) strayed from its path came and
dashed with motorcycle which was driven
on its correct side.

26. The appellant has examined himself.
He was not an eye witness. PW2 - Sarvesh
Kumar is the person, who has lodged the F.I.R.
The chargesheet was led against the driver of
Tata Spacio and PW-2 in his oral testimony
has categorically mentioned that the accident
occurred due to rash and negligent driving of
Tata Spacio. The Tribunal has relied on the
decision of Bijoy Kumar Dugar Vs.
Bidyadhar Dutta and others, 2006 (1) TAC
969, so as to come to the conclusion that as the
accident occurred and as it was a head-oncollision, both the drivers are held to be
equally negligent. The learned Tribunal has
not given any cogent reason as to why it held
both the drivers to be equally negligent. One
of the reasons given is that the vehicle was
carrying more persons than its capacity of
sitting.

27. While going through the F.I.R., the
chick F.I.R.