# M/s Oriental Insurance Co. Ltd., Hari Nagar, Meerut v. Ram Kishan Agarwal & Ors

- **Citation:** (2023) 5 ILRA 212
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-21
- **Case number:** First Appeal From Order No. 4116 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-oriental-insurance-co-ltd-hari-nagar-meerut-v-ram-kishan-agarwal-ors-50192
- **Pages:** 9

## Headnote

A. Civil Law - Motor Vehicles Act, 1988Section 173-composite negligence-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-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 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-Apex
Court latest decision in Khenyei one
further aspect that 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 minimized if he had taken
care- the ground raised even on the
compensation being awarded is on higher
side cannot succeed as the compensation
awarded is without granting any future
loss of income, the amount awarded to
the heirs of driver of bus is meager, there
shall be no recoveries from the claimants-
Hence, all these appeals fail- (Para 1 to
24)

The appeals are dismissed. (E-6)

List of Cases cited:

## Text

212 INDIAN LAW REPORTS ALLAHABAD SERIES

26. The instant appeal is partly
allowed as indicated above.
----------
(2023) 5 ILRA 212
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2023

BEFORE

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

First Appeal From Order No. 4116 of 2017
&
other connected cases

M/s Oriental Insurance Co. Ltd., Hari
Nagar, Meerut ...Appellant
Versus
Ram Kishan Agarwal & Ors.
 ...Respondents

Counsel for the Appellant:
Sri S.K. Jaiswal, Sri N.K. Srivastava

Counsel for the Respondents:
Sri K.S. Amist

A. Civil Law - Motor Vehicles Act, 1988Section 173-composite negligence-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-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 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-Apex
Court latest decision in Khenyei one
further aspect that 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 minimized if he had taken
care- the ground raised even on the
compensation being awarded is on higher
side cannot succeed as the compensation
awarded is without granting any future
loss of income, the amount awarded to
the heirs of driver of bus is meager, there
shall be no recoveries from the claimants-
Hence, all these appeals fail- (Para 1 to
24)

The appeals are dismissed. (E-6)

List of Cases cited:

1. Bajaj Allianz Gen. Ins. Co. Ltd. Vs Smt. Renu
Singh & ors.. FAFO No. 1818 of 2012

2. Rylands Vs Fletcher (1868) 3 HL (LR) 330

3. Jacob Mathew Vs St. of Punj. (2005) 0 ACJ
(SC) 1840

4. Khenyei Vs New India Assr. Co. Ltd. & ors.
(2015) LawSuit (SC) 469

5. T.O. Anthony Vs Karvarnan & ors. (2008) 3
SCC 748

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

1. This group of matters are preferred
by Oriental Insurance Co. Ltd and The New
India Assurance Company Ltd respondents
in the claim petitions which arose out of the
same accident. The Insurance Companies
have requested for settling the liability on
the other insurance company as far as
negligence of the driver driving the vehicle
involved in accident.

2. The Insurance Companies have
raised the issue of driving licence but it is
held by tribunal that have not proved the
5 All. M/s Oriental Insurance Co. Ltd., Hari Nagar, Meerut Vs. Ram Kishan Agarwal & Ors.
213
same to be defective before the tribunal
which would permit the tribunal to
exonerate them. The insurance companies
have not proved that there is breach of
policy condition. The second contention
raised by both the appellants-Insurance
companies is that the tribunal did not
apportion the negligence of drivers of both
the vehicles. The tribunal having not
apportioned the negligent, the amount
receivable by heirs of driver is not deducted
which is bad in law.

3. The brief facts of the case are that
on 19.6.1988 at about 11.15 a.m., Bus No.
URJ
7389,
in
which
all
the
deceased/injured persons along with the
other passengers were traveling, met with
an accident at Bijoli Tiraha, Meerut-Hapur
Road, within the circle of P.S. Kharkhoda,
District Meerut with Truck No. DHL 3616.
It was a head on collision. The bus was
going from Meerut to Hapur where as the
truck was coming from the opposite
direction
towards
Meerut,
when
the
accident took place. As a result of
collusion, the aforesaid bus over turned to
left side. On account of this accident, Km.
Kaushalya Devi, Ajay Kumar Agarwal,
Smt. Mithlesh Agarwal, Bashir, Hariya,
Devendra and Ashraf died where as the
claimants Smt. Urmila, Km. Lovy, Shyam
Lal,
Raghuvir
and
Rajendra
Singh
sustained various injuries which will be
described and narrated later on. The
petitioners have alleged that the accident in
question is the result of gross rash and
negligence in driving the vehicles on the
part of the drivers involved in the accident.

4. The owners of bus No. URJ 7389
have contested the claim petitions mainly
on the ground that their driver-Ashraf, who
also died in the accident was not rash and
negligent in causing the accident. On the
other hand, the driver of the motor truck
No. DHL 3616 was negligent who caused
the accident and collided with the bus no.
URJ 7389 on their wrong side.

5. The claim petitions had been filed
by the legal representatives of the deceased
and by the injured persons, who sustained
injuries in a motor accident which occurred
on 19.6.1988 at about 11.15 a.m. at Bijoli
Tiraha on Meerut-Hapur Road, within the
circle of Police Station Kharkhoda, District
Meerut, for compensation under Sections
92-A and 110-A of Motor Vehicle Act,
1939.

6. It may be stated that since claim
petitions related to the same accident, by an
order dated 17.1.1990 the claim petitions
No.197/88,
198/88
&
230/88
were
consolidated
and
the
claim
petition
No.197/88 was treated as leading case, by
order dated 22.5.1990 M.A.C. No.154/88,
155/88 and 156/88 were consolidated with
M.A.C. No.197/88, by an order dated
8.11.1995
M.A.C.
No.312/88
were
consolidated
with
M.A.C.
No.197/88.
M.A.C. No.243/88 was consolidated with
the M.A.C. No.197/88 vide order dated
29.7.1991 in M.A.C. No.243/88. M.A.C.
No.298/88,
299/88
and 311/88
were
consolidated with leading case No.197/88
vide
order
dated
4.7.1991,
M.A.C.
No.28/1989 was consolidated with the
leading case M.A.C. No.197/88 vide order
dated 22.9.1993 were to be heard together.

7. The owners of the motor truck No.
DHL 3616 have not contested the claim
petitions.

8. New India Insurance Company is
the insurer of the bus URJ 7389, the
Insurance Company has contested the claim
petitions mainly on the ground that the
214 INDIAN LAW REPORTS ALLAHABAD SERIES
alleged accident took place due to rash and
negligence of the driver of motor truck No.
DHL 3616.

9. The Oriental Insurance Company
being the insurer of motor truck DHL
No.3616 have contested the claim petitions
on the ground that the driver of the motor
truck DHL No.3616 was not having any
valid driving licence to drive the said truck
on the date of accident. Hence the
Insurance company was not liable to pay
the compensation as per Section 96 of
Motor Vehicle Act, 1939.

10. The applicant M/s. Oriental
Insurance Co. Ltd in some of the connected
appeals has raised the following grounds to
challenge the common judgment/award of
tribunal.

"(i).
that
the
award
of
compensation granted by the learned
Tribunal
suffers
from
illegality
and
perversity on behalf of the appellant, it was
specifically pleaded through Additional
Written Statement that the driver of Truck
No.DHL 3616 Zahid Husain was not
holding any valid driving licence. In view
of Section 96 of the Motor Vehicles Act and
also in terms of the policy of Insurance the
appellant/was not liable at all. The liability
if any, was fixed, the truck owners were
liable.

(ii). The learned Tribunal failed
to giving finding on rash and negligent
driving. All the passengers of the bus had
deposed that the bus, was at a very high
speed.

(iii) The learned Tribunal failed
to give a clear finding as to the quantum of
the liability fixed on the appellant and the
new India Assurance Co. the Insurer of the
bus. Thus vitiates the finding.

(iv) The tribunal committed an
error of law as he ignored the vital
pleading with regard to the driving licence
not held by the driver of the said truck.
Although attested true copies of the driving
licence and its verification from the office
have been produced before the learned
Tribunal.

(v) In a written argument filed on
behalf of appellant it was clearly stated
that in view of law laid down by the
Hon'ble Supreme Court and this Hon'ble
Court
also,
the
insurance
company
(appellant) is absolved to indemnify the
insured truck as its driver was not holding
a valid licence (driving licence)

(vi) Even otherwise the findings
given by the learned Tribunal is erroneous
arbitrary and against the well settled
principal of law and hence is liable to be
set aside."

11.
The
appellant-New
India
Assurance Co. Ltd. in the connected
appeals has challenge the award on the
following grounds:

(i) Once the court below found
that accident took place by Bus No.URJ
7389 and Truck No.DHL3 3616 due to
contributory negligence of both the vehicles
and as such the court below ought to have
passed an award after apportionment of the
amount liable to be paid by insurer of each
vehicle this having not been done the award
of the court below is wholly illegal and
erroneous.

(ii) The accident took place on
19.6.1988 and at that time Motor Vehicles
Act, 1939 was enforced and as per term of
insurance policy under Section 92 of the
Motor
Vehicle
Act,
1939
maximum
statutory liability of the appellant could be
fixed to Rs.15,000/- per passenger and
since it was a case of contributory
5 All. M/s Oriental Insurance Co. Ltd., Hari Nagar, Meerut Vs. Ram Kishan Agarwal & Ors.
215
negligence has found by the court below
the liability of the appellant will be of
Rs.7,500/- only per passenger but view to
the contrary taken by the tribunal is wholly
illegal and erroneous.

(iii) The court below has awarded
the compensation excessively though a
maximum
compensation
against
the
appellant which could have been awarded
is Rs.7500/- in this view of the matter the
award of the tribunal is highly excessive
and is liable to be set aside by this Hon'ble
Court.

(iv) The compensation awarded
against the appellant could be paid only to
the dependents of the deceased or injured
and where there was no dependency no
amount was liable to be paid unless the
claims proved before the court below that
they were dependent upon the deceased or
injured and in this view of the matter the
quantum
of
compensation
is
highly
excessive.

(v) According to the terms and
condition of the Insurance Policy of Bus
No.URJ 7389 which was insured by the
appellant the bus was insured for carrying
69 passengers and in the premium charge
from the owner was Rs.828/- only at the
rate
of
Rs.12/-
per
passenger
and
accordingly the liability of the appellant
was maximum Rs.15,000/- per passenger as
per rule contained under the Act and Rules.
It is further stated that Rs.75/- was charged
by the appellant for enhancing the third
party risk and it had nothing to do for the
enhancement of compensation for the
passengers but view to the contrary taken
by the court below is wholly illegal and
erroneous.

(vi)
The
Court
below
have
wrongly applied multiplier system in the
present case.

(vii)
The
quantum
of
compensation and rate of interest is highly
excessive and is liable to be set aside by
this Hon'ble Court.

(viii) The driver of the bus was
not entitled for any compensation as he
could claim compensation from the owner
of
the
bus
under
the
Workman
compensation Act.

(ix) The claimant respondents do
not come within the definition of family as
provided under the Fatal Accidents Act and
are not entitled to claim any compensation.

(x) The judgment and award of
the Tribunal is wholly illegal and is against
the weight of oral and documentary
evidence available on record of this case
and is liable to be set aside.

12. Heard the learned counsel for the
appellant-Insurance
Companies.
The
common ground of challenge by both the
Insurance Companies relates to negligence
of drivers of vehicles involved in the
accident, let us consider the question of
negligence from the perspective of the law
laid down and where two vehicles are
involved.

13. 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.

14. The term negligence has been
discussed time and again. A person who
216 INDIAN LAW REPORTS ALLAHABAD SERIES
either contributes or is author or co-author
of the accident would be liable for his
contribution to the accident having taken
place.

15. 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
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
5 All. M/s Oriental Insurance Co. Ltd., Hari Nagar, Meerut Vs. Ram Kishan Agarwal & Ors.
217
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."
emphasis added

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

"4. It is a case of composite
negligence where injuries have been caused
to the claimants by combined wrongful act
of joint tort feasors. In a case of accident
caused by negligence of joint tort feasors,
all the persons who aid or counsel or direct
or join in committal of a wrongful act, are
liable. In such case, the liability is always
joint and several. The extent of negligence
of joint tort feasors in such a case is
immaterial for satisfaction of the claim of
the plaintiff/claimant and need not be
determined by the by the court. 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
218 INDIAN LAW REPORTS ALLAHABAD SERIES
case of contributory negligence, injured
need
not
establish
the
extent
of
responsibility
of
each
wrong
doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong doer separately. It is only in the case
of contributory negligence that the injured
himself has contributed by his negligence
in the accident. Extent of his negligence is
required to be determined as damages
recoverable by him in respect of the
injuries have to be reduced in proportion to
his contributory negligence. The relevant
portion is extracted hereunder :

"6. 'Composite negligence' refers
to the negligence on the part of two or more
persons. Where a person is injured as a
result of negligence on the part of two or
more wrong doers, it is said that the person
was injured on account of the composite
negligence of those wrong-doers. In such a
case, each wrong doer, is jointly and
severally liable to the injured for payment
of the entire damages and the injured
person has the choice of proceeding
against all or any of them. In such a case,
the injured need not establish the extent of
responsibility
of
each
wrong-doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong-doer separately. On the other hand
where a person suffers injury, partly due to
the negligence on the part of another
person or persons, and partly as a result of
his own negligence, then the negligence of
the part of the injured which contributed to
the
accident
is
referred
to
as his
contributory negligence. Where the injured
is guilty of some negligence, his claim for
damages is not defeated merely by reason
of the negligence on his part but the
damages recoverable by him in respect of
the injuries stands reduced in proportion to
his contributory negligence.

7. Therefore, when two vehicles
are involved in an accident, and one of the
drivers claims compensation from the other
driver alleging negligence, and the other
driver denies negligence or claims that the
injured claimant himself was negligent,
then it becomes necessary to consider
whether the injured claimant was negligent
and if so, whether he was solely or partly
responsible for the accident and the extent
of his responsibility, that is his contributory
negligence. Therefore where the injured is
himself partly liable, the principle of
'composite negligence' will not apply nor
can there be an automatic inference that
the negligence was 50:50 as has been
assumed in this case. The Tribunal ought to
have examined the extent of contributory
negligence of the appellant and thereby
avoided
confusion
between
composite
negligence and contributory negligence.
The High Court has failed to correct the
said error."

18.
This
Court
in
Challa
Bharathamma &Nanjappan (supra) has
dealt with the breach of policy conditions
by the owner when the insurer was asked to
pay the compensation fixed by the tribunal
and the right to recover the same was given
to the insurer in the executing court
concerned if the dispute between the
insurer and the owner was the subjectmatter of determination for the tribunal
and the issue has been decided in favour of
the insured. The same analogy can be
applied to the instant cases as the liability
of the joint tort feasor is joint and several.
In the instant case, there is determination
of inter se liability of composite negligence
to the extent of negligence of 2/3rd and
1/3rd of respective drivers. Thus, the
vehicle - trailor-truck which was not
insured with the insurer, was negligent to
the extent of 2/3rd. It would be open to the
insurer being insurer of the bus after
5 All. M/s Oriental Insurance Co. Ltd., Hari Nagar, Meerut Vs. Ram Kishan Agarwal & Ors.
219
making payment to claimant to recover
from the owner of the trailor-truck the
amount to the aforesaid extent in the
execution proceedings. Had there been no
determination of the inter se liability for
want of evidence or other joint tort feasor
had not been impleaded, it was not open to
settle such a dispute and to recover the
amount in execution proceedings but the
remedy would be to file another suit or
appropriate proceedings in accordance
with law.

What emerges from the aforesaid
discussion is as follows :

(i) In the case of composite
negligence, plaintiff/claimant is entitled to
sue both or any one of the joint tort feasors
and to recover the entire compensation as
liability of joint tort feasors is joint and
several.

(ii) In the case of composite
negligence, apportionment of compensation
between two tort feasors vis a vis the
plaintiff/claimant is not permissible. He
can recover at his option whole damages
from any of them.

(iii) In case all the joint tort
feasors have been impleaded and evidence
is sufficient, it is open to the court/tribunal
to determine inter se extent of composite
negligence
of
the
drivers.
However,
determination of the extent of negligence
between the joint tort feasors is only for the
purpose of their inter se liability so that
one may recover the sum from the other
after making whole of payment to the
plaintiff/claimant to the extent it has
satisfied the liability of the other. In case
both of them have been impleaded and the
apportionment/ extent of their negligence
has been determined by the court/tribunal,
in main case one joint tort feasor can
recover the amount from the other in the
execution proceedings.

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

emphasis added

17. The latest 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 minimized if he
had taken care.

18. While going through the records, it
is clear that the tribunal below has not
apportioned the negligence. It was not
suppose to quantify the negligence as qua
passengers, it was case of composite
negligence, it is held that the tribunal
cannot determine the extent of composite
negligence
of
the
drivers. There
is
impleadment of both the joint tortfessors
and the other tortfessors, therefore, would
be liable of its share and that would be 50%
as two vehicles of equal magnitude had
dashed with each other. However, the
passengers in the bus were not the coauthors of the accident having taken place.
In these appeals, there are no cross appeals
by the claimants. Hence, this Court usurped
the
compensation
granted
and
the
compensation awarded cannot be said to be
on the higher-side as the tribunal has not
considered the case of the claimants and
220 INDIAN LAW REPORTS ALLAHABAD SERIES
under the head of future loss of income, no
amount has been granted.

19. As far as Oriental Insurance
Company is concerned, the main ground of
the challenge is that the driver of truck No.
DHL 3616 did not hold valid driving
licence and, therefore, the
insurance
company could not have been held liable to
indemnify the owner and they have claimed
breach of policy condition under Section 96
of motor vehicles Act, 1931.

20. The owner has produced the
driving licence of the driver. The Insurance
company before the tribunal tried to
show their driving licence who has
driven the vehicle. Unfortunately, the
Investigating
Authority
rather
the
surveyor had gone to the RTO with
licence of one Zaheer Ahmad whose
father is also different, namely, Hafiz Ali
Aziz. In our several cases, driver cannot
be said that there was no driving licence.
The judgment of the tribunal cannot be
found fault with and the appeals of
Insurance Companies on this ground will
have to be failed.

21. Thus, the appeals preferred by
Oriental
Insurance
Company
cannot
succeed. This Court now decides the
contention of the New India Assurance Co.
Ltd. namely that their liability was a
limited liability. However, this was never
pressed into service before the tribunal
rather additional Rs.70 was charged by the
appellants for taking higher the third party
risk.

22. In that view of the matter, the
contention of New India Assurance Co.
Ltd. is that it was a limited policy cannot be
accepted once the parties contract for
unlimited liability.

23. Hence, all these appeals fail. The
ground raiseds even on the compensation
being awarded is on higher side cannot
succeed as the compensation awarded is
without granting any future loss of income.
The said finding cannot be interfered with.
Appeals are disposed of as the amount
awarded to the heirs of driver of bus is
meager, there shall be no recoveries from
the claimants.

24. In view of the above, all these
appeals being devoid of merits are
dismissed.

25. Record be transmitted to tribunal.
The tribunal shall disburse all amounts kept
in fixed deposit by orders of this Court.
Amount deposited in High Court be
transmitted
to
tribunal,
if
yet
not
transmitted.
----------
(2023) 5 ILRA 220
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.04.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 85 of 2023

Vikram Chaturvedi ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Shikhar Chaube, Saubhagya Mishra

Counsel for the Respondents:

Civil Law - Hindu Marriage Act, 1955 -
Section 24 - Maintenance pendente lite
and expenses of proceedings - Issue -