# M/s New India Assurance Comp. Ltd v. Smt. Usha Taneja & Ors

- **Citation:** (2022) 2 ILRA 742
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-03
- **Case number:** First Appeal From Order No. 1972 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-new-india-assurance-comp-ltd-v-smt-usha-taneja-ors-48154
- **Pages:** 8

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Section
140
-
Liability
to
pay
compensation in certain cases on the
principle of no fault , Section 147 -
Requirements of policies and limits of
liability - negligence - principle of "res
ipsa loquitur" - "the things speak for
itself" - if the the order is not questioned
as to whether the driver was having a
driving licence or not and if it is proved
that the driving licence was there in that
2 All. M/s New India Assurance Comp. Ltd. Vs. Smt. Usha Taneja & Ors.
743
case of the matter thus it cannot be said
that driver was disqualified to drive the
vehicle. (Para -13 )

Accident taken place - respondents are drivers
and owner of the truck - insured with appellant
-
death of the sole bread-earner of the
respondents-claimants - filed claim petition -
claimed a sum of Rs.25,64,000/- - judgment
and award granting a sum of Rs.3,24,000/- by
tribunal - challenged by Insurance Company -
defective appeal since 1998 - pending till date -
main dispute regarding driving licence of the
driver - finding of fact . (Para - 2,3,4)

HELD:- Not proved by the Insurance Company
that the owner was aware of the fact that
driving licence had expired . Tribunal has not
granted any amount under the head of future
loss of income rather the multiplier of 17 though
is slightly on higher-side the dependency. Thus,
this court does not that any amount under the
head of in absence of the appellant appear
before this Court, no amount requires to be
enhanced. Court do not feel that the tribunal
has committed any error in allowing the claim
petition.(Para - 14,16,17)

Appeal dismissed. (E-7)

List of Cases cited:-

## Text

742 INDIAN LAW REPORTS ALLAHABAD SERIES
case of death of a boy of aged about 13
years and the case of the appellant is
identical and fully covered with the
judgment of Hon'ble Apex Court and the
appellants
are
also
entitled
for
compensation of Rs. 2,25,000/-.

7. In Manju Devi Vs. Musafir Paswan
(Supra) the Hon'ble Supreme Court has
held that :

"As set out in the Second
Schedule to the Motor Vehicles Act, 1988,
for a boy of 13 years of age, a multiplier of
15 would have to be applied. As per the
Second Schedule, he being a non-earning
person, a sum of Rs. 15,000.00 must be
taken
as
the
income.
Thus,
the
compensation comes to Rs. 2,25,000.00."

8. The case law Rajendra Singh Vs.
National Insurance Company Ltd. and others
(Supra) cited by the learned counsel for the
appellants will not apply in the present case
as in that case the date of the accident was
25.12.2012 and award was passed thereafter.
The amount of compensation was assessed
on the basis of notional income of 36,000/-
per annum and applying a 50% deduction
towards personal expenses with multiplier of
15 the compensation was calculated as Rs.
2,70,000/- and out of which 50% was
deducted towards contributory negligence. A
sum of Rs. 25,000/- was added towards
funeral expenses leaving to a total award of
Rs. 1,60,000/-. The Hon'ble Supreme Court
has held that there was no contributory
negligence of the deceased and deduction on
account of contributory negligence was held
to be unsustainable.

9. In the facts of the present case the
judgment of Manju Devi (Supra) under all
the heads is applicable. Award is required
to be enhanced accordingly.

10. The award is enhanced to Rs.
2,25,000/- with interest @ 7% per annum.

11.

The
appeal
is
allowed
accordingly. Respondent no. 3 will recalculate the amount of compensation
accordingly and deposit the difference
within 12 weeks from today before the
tribunal. The judgment and decree shall
stand modified to the aforesaid extent. The
record, if in this Court, be sent forthwith to
the tribunal with the copy of the judgment
to enable the respondent no. 3-Insurance
Company to deposit the difference.
----------
(2022)02ILR A742
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2022

BEFORE

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

First Appeal From Order No. 1972 of 2021

M/s New India Assurance Comp. Ltd.
 ...Appellant
Versus
Smt. Usha Taneja & Ors. ...Respondents

Counsel for the Appellant:
Sri Arun Kumar Shukla, Sri Pankaj Bhatia

Counsel for the Respondents:

(A) Civil Law - Motor Vehicles Act, 1988 -
Section
140
-
Liability
to
pay
compensation in certain cases on the
principle of no fault , Section 147 -
Requirements of policies and limits of
liability - negligence - principle of "res
ipsa loquitur" - "the things speak for
itself" - if the the order is not questioned
as to whether the driver was having a
driving licence or not and if it is proved
that the driving licence was there in that
2 All. M/s New India Assurance Comp. Ltd. Vs. Smt. Usha Taneja & Ors.
743
case of the matter thus it cannot be said
that driver was disqualified to drive the
vehicle. (Para -13 )

Accident taken place - respondents are drivers
and owner of the truck - insured with appellant
-
death of the sole bread-earner of the
respondents-claimants - filed claim petition -
claimed a sum of Rs.25,64,000/- - judgment
and award granting a sum of Rs.3,24,000/- by
tribunal - challenged by Insurance Company -
defective appeal since 1998 - pending till date -
main dispute regarding driving licence of the
driver - finding of fact . (Para - 2,3,4)

HELD:- Not proved by the Insurance Company
that the owner was aware of the fact that
driving licence had expired . Tribunal has not
granted any amount under the head of future
loss of income rather the multiplier of 17 though
is slightly on higher-side the dependency. Thus,
this court does not that any amount under the
head of in absence of the appellant appear
before this Court, no amount requires to be
enhanced. Court do not feel that the tribunal
has committed any error in allowing the claim
petition.(Para - 14,16,17)

Appeal dismissed. (E-7)

List of Cases cited:-

1. Bajaj Allianz General Insurance Co.Ltd. Vs
Smt. Renu Singh & ors., First Appeal From
Order No. 1818 of 2012

2. Ram Chandra Singh Vs Rajaram & ors., AIR
2018 SC 3789

3. Nirmala Kothari Vs United India Insurance Co.
Ltd.,2020 4 SCC 49 (12)

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

1. Heard learned counsel for the
parties and perused the judgment and order
impugned..

2. Despite notice, none has appeared
and it was a defective appeal since 1998
and has been recently numbered and taken
up for final disposal. The record is not
necessary as the matter can be disposed of
as there is Annexure appended to the
appeal itself.

3. By way of this appeal, the
Insurance
Company
has
brought
in
challenge the judgment and award granting
a sum of Rs.3,24,000/- for the death of the
sole bread-earner of the respondentsclaimants, who had filed claim petition
claimed a sum of Rs.25,64,000/- for the
death of Sudhir Mohan Taneja who died in
the vehicular accident and left behind him
his widow and three minor children. The
matter has remained pending from 1998 till
date.

4. Before this Court adverts to the
brief facts, the accident having taken place
is not in dispute. The respondents are the
drivers and the owner of the truck which is
insured with appellant which is also not in
dispute. The main dispute is regarding the
driving licence of the driver and, therefore,
the insurance company could not have been
fastened with liability to pay the claimants.
Hence insurance company could not have
been made liable and that the multiplier
was wrongly applied.

5 . The brief facts of this case are that
on 22.4.1992, the deceased while he tried
to board the bus, was no successful in
boarding the bus in the meantime, the truck
came from Delhi Road side, which was
being driven rashly and negligently and
dashed with the deceased. The driver of the
truck tried to overtake the stationary bus
from the wrong side without blowing horn,
which was driven by one of the opponents
and while the deceased was taken to
hospital he succumbed to the injuries. The
involvement of the truck and it being
744 INDIAN LAW REPORTS ALLAHABAD SERIES
insured with the appellant is not in dispute,
it is not disputed that the truck tried to
overtake the stationary bus and, therefore,
the issue of negligence has not been raised.

6. The deceased was 32 years of age.
He was a medical representative and
without waiting an FIR was lodged and the
witnesses were examined.

7. It is an admitted position of fact that
the driver of the truck did not appear and,
therefore, when a truck driver tries to
overtake a bus which was stationary from the
left side, the driver of the truck has to be held
to be negligent which this court holds
negligence judgments. This Court concur
with the tribunal that the driver of the truck
was rightly held to be and, therefore, this
Court concur with the tribunal as far as issue
of negligence is concerned and the same and
the submission made by learned counsel for
appellant is negatived.

8. The issue of negligence has to be
decided from the perspective of the law laid
down by the Courts.

9. The term negligence means failure
to exercise care towards others which a
reasonable and prudent person would in a
circumstance. Negligence can be both
intentional or accidental which can also be
accidental.
More
particularly,
term
negligence connotes reckless driving and
the injured of claimants 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.

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
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
2 All. M/s New India Assurance Comp. Ltd. Vs. Smt. Usha Taneja & Ors.
745
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."

11. The aspect of the driver Sarvan
Singh not having a valid driving licence,
746 INDIAN LAW REPORTS ALLAHABAD SERIES
the triunal had considered the clause of the
policy. It has been held by the tribunal as
follows:

"Person or persons entitled to
drive"

The insured,

Any other person who is driving
on the Insurance order or with his
permission.

Provided, the person driving
holds a valid licence to drive the vehicle
or has held a permanent driving licence
(other than a learner's licence) and is not
disqualified from holding or obtaining
such a licence."

12. Thus, this Court also concurs
with the findings of fact. It cannot be
held that the driver was not knowing
driving nor it can be said that he was
disqualified for holding of a valid
licence, not knowing how the drive a
vehicle in a separate issue. The Provision
of Section 147 of Motor Vehicles Act,
1988 read with Section 140 reads as
follows:

"147 Requirements of policies
and limits of liability. --

(1) In order to comply with the
requirements of this Chapter, a policy of
insurance must be a policy which--

(a) is issued by a person who is
an authorised insurer; and

(b) insures the person or classes
of persons specified in the policy to the
extent specified in sub-section (2)--

(i) against any liability which
may be incurred by him in respect of the
death of or bodily27 [injury to any person,
including owner of the goods or his
authorised representative carried in the
vehicle] or damage to any property of a
third party caused by or arising out of the
use of the vehicle in a public place;

(ii) against the death of or bodily
injury to any passenger of a public service
vehicle caused by or arising out of the use
of the vehicle in a public place:

Provided that a policy shall not
be required--

(i) to cover liability in respect of
the death, arising out of and in the course
of his employment, of the employee of a
person insured by the policy or in respect
of bodily injury sustained by such an
employee arising out of and in the course
of his employment other than a liability
arising
under
the
Workmen's
Compensation Act, 1923 (8 of 1923) in
respect of the death of, or bodily injury to,
any such employee--

(a) engaged
in
driving
the
vehicle, or

(b) if it is a public service vehicle
engaged as conductor of the vehicle or in
examining tickets on the vehicle, or

(c) if it is a goods carriage, being
carried in the vehicle, or

(ii) to
cover
any
contractual
liability.

Explanation. --For the removal of
doubts, it is hereby declared that the death
2 All. M/s New India Assurance Comp. Ltd. Vs. Smt. Usha Taneja & Ors.
747
of or bodily injury to any person or damage
to any property of a third party shall be
deemed to have been caused by or to have
arisen out of, the use of a vehicle in a
public place notwithstanding that the
person who is dead or injured or the
property which is damaged was not in a
public place at the time of the accident, if
the act or omission which led to the
accident occurred in a public place.

(2) Subject to the proviso to subsection (1), a policy of insurance referred
to in sub-section (1), shall cover any
liability incurred in respect of any accident,
up to the following limits, namely:--

(a) save as provided in clause (b),
the amount of liability incurred;

(b) in respect of damage to any
property of a third party, a limit of rupees
six thousand:

Provided that any policy of
insurance issued with any limited liability
and in force, immediately before the
commencement of this Act, shall continue
to be effective for a period of four months
after such commencement or till the date of
expiry of such policy whichever is earlier.

(3) A policy shall be of no effect
for the purposes of this Chapter unless and
until there is issued by the insurer in favour
of the person by whom the policy is effected
a certificate of insurance in the prescribed
form
and
containing
the
prescribed
particulars of any condition subject to
which the policy is issued and of any other
prescribed matters; and different forms,
particulars and matters may be prescribed
in different cases.

(4) Where a cover note issued by
the insurer under the provisions of this
Chapter or the rules made thereunder is
not followed by a policy of insurance within
the prescribed time, the insurer shall,
within seven days of the expiry of the
period of the validity of the cover note,
notify the fact to the registering authority in
whose records the vehicle to which the
cover note relates has been registered or to
such
other
authority
as
the
State
Government may prescribe.

(5) Notwithstanding
anything
contained in any law for the time being in
force, an insurer issuing a policy of
insurance under this section shall be liable
to indemnify the person or classes of
persons specified in the policy in respect of
any liability which the policy purports to
cover in the case of that person or those
classes of persons.

Section
140
in
The
Motor
Vehicles Act, 1988

140.
Liability
to
pay
compensation in certain cases on the
principle of no fault.--

(1) Where death or permanent
disablement of any person has resulted
from an accident arising out of the use of a
motor vehicle or motor vehicles, the owner
of the vehicle shall, or, as the case may be,
the owners of the vehicles shall, jointly and
severally, be liable to pay compensation in
respect of such death or disablement in
accordance with the provisions of this
section.

(2) The amount of compensation
which shall be payable under sub-section
(1) in respect of the death of any person
shall be a fixed sum of 1[fifty thousand
rupees] and the amount of compensation
payable under that sub-section in respect of
748 INDIAN LAW REPORTS ALLAHABAD SERIES
the permanent disablement of any person
shall be a fixed sum of 2[twenty-five
thousand rupees].

(3) In any claim for compensation
under sub-section (1), the claimant shall
not be required to plead and establish that
the death or permanent disablement in
respect of which the claim has been made
was due to any wrongful act, neglect or
default of the owner or owners of the
vehicle or vehicles concerned or of any
other person.

(4) A claim for compensation
under sub-section (1) shall not be defeated
by reason of any wrongful act, neglect or
default of the person in respect of whose
death or permanent disablement the claim
has been made nor shall the quantum of
compensation recoverable in respect of
such death or permanent disablement be
reduced on the basis of the share of such
person in the responsibility for such death
or
permanent
disablement.
3[(5)
Notwithstanding anything contained in subsection (2) regarding death or bodily injury
to any person, for which the owner of the
vehicle is liable to give compensation for
relief, he is also liable to pay compensation
under any other law for the time being in
force: Provided that the amount of such
compensation to be given under any other
law shall be reduced from the amount of
compensation payable under this section or
under section 163A."

13. It has been discussed by the
learned tribunal that the persons who are
entitled to drive reads or as holds a
bringing driving licence and it cannot
disqualifies holding and obtaining such
licence. One more aspect borne in mind,
recently the Apex Court has held that if the
the order is not questioned as to whether
the driver was having a driving licence or
not and if it is proved that the driving
licence was there in that case of the matter
thus it cannot be said that driver was
disqualified to drive the vehicle.

14. In our case, it is not proved by the
Insurance Company that the owner was
aware of the fact that driving licence had
expired. The judgment in Ram Chandra
Singh v. Rajaram and others, AIR 2018
SC 3789 wherein on liability of insurance
company, no attempt was made by High
Court and trial court to examine whether
owner of vehicle was aware of fact that
driving licence possessed by driver was
valid or not. The matter was remanded
back to High Court for fresh consideration
of question of liability of owner or of
insurer to pay consideration. (Section 147
of Motor Vehicles Act, 1988).

15. In our case, learned counsel Shri
Arun Kumar Shukla has contended that
driver was not having a valid driving
licence which has been proved by leading
evidence. In our case the judgment of the
Apex Court titled Nirmala Kothari v.
United India Insurance Company Ltd.,
reported in 2020 4 SCC 49 (12) will apply
in full force.

16. As far as the compensation is
concerned, the tribunal cannot be said to
have exceeded the principles as enunciated
in those days. The tribunal has no granted
any amount under the head of future loss of
income rather the multiplier of 17 though is
slightly on higher-side the dependency, the
income of the deceased was Rs.3,000/- per
month which is incentive which has also
not been considered by the tribunal. The
bonus has been deducted, the tribunal has
deducted 1/4 for his personal expenses. The
income
of
the
deceased
has
been
2 All. Roop Lal & Anr. Vs. Suresh Kumar Yadav & Ors.
749
considered to be Rs.18,000/- per year, no
amount under the head of future loss of
income is given and only a sum of
Rs.18,000/- as additional amount is granted
for non pecuniary damages. Thus, this
court does not that any amount under the
head of in absence of the appellant appear
before this Court, no amount requires to be
enhanced.

17. Hence this Court do not feel that
the tribunal has committed any error in
allowing the claim petition.

18. In view of the above, this appeal
fails and is dismissed.
----------
(2022)02ILR A749
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2022

BEFORE

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

First Appeal From Order No. 2124 of 2021

Roop Lal & Anr. ...Appellants
Versus
Suresh Kumar Yadav & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Mohd. Naushad Siddiqui

Counsel for the Respondents:
Sri Vipul Kumar, Sri Shreesh Srivastava

(A) Civil Law - Motor Vehicles Act, 1988 -
Compensation Enhancement
- Section
163-A
-
Scheme
for
payment

of
compensation in case of hit and run motor
accidents .

Son (07 years of age at the time of death ) of
appellant died in accident - Appellants -
claimants (deceased father and mother) filed
claim petition before tribunal - awarded a sum
of Rs.1,80,000/- as compensation to the
claimants with interest at the rate of 7.5% per
annum - aggrieved by award - filed appeal
claiming enhancement of award.(Para - 1 to 7)

HELD:- It is a fit case to increase the notional
income by taking into account the inflation,
devaluation of the rupees and cost of living .
Notional income of the deceased assumed to be
Rs.25,000/- per annum as he was non-earning
member . Notional income multiplied with
applicable multiplier ''15' as prescribed in
Scheduled-II of the Motor Vehicles Act, 1988
towards loss of dependency. Appellants entitled
to the total compensation of Rs.4,70,000/- and
entitled to the rate of interest as 7.5% per
annum from the date of filing the claim petition.
Judgment and award passed by the Tribunal
stand modified . (Para - 12,13,14,15)

Appeal partly allowed.(E-7)

List of Cases cited:-

1. Kishan Gopal & anr. Vs Lala & ors., 2013
(101) ALR 281 (SC) = 2013 (131) AIC 219 =
2014 (1) AICC 208 (SC)

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

3. United India Insurance Co. Ltd. Vs Mumtaz
Ahmad & anr., 2017 (2) AICC 1229

4. Kurvan Ansari @ Kurvan Ali & anr. Vs Shyam
Kishore Murmu & anr., 2021 (4) TAC 673

5. Puttamma & ors. Vs K.L. Narayana Reddy &
anr., 2014 (1) TAC 926

6. Kishan Gopal & anr. Vs Lala & ors., 2013 (4)
TAC 5

7. National Insurance Co. Ltd. Vs Mannat Johal
& ors., 2019 (2) T.A.C. 705 (S.C.)

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