# M/s United India Insurance Co. Ltd v. Suresh & Anr

- **Citation:** (2023) 5 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-14
- **Case number:** First Appeal From Order No. 651 of 1996
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-united-india-insurance-co-ltd-v-suresh-anr-50264
- **Pages:** 7

## Headnote

Civil Law - Motor Accident Claim -
Respondent
injured-denied
by
insurance
company-issue of negligence decided -driver
negligent-composite
negligence
qua
the
claimant who was cleaner on the vehicle -driver
was negligent-injured was 26 years of agesuffered 40% disability-amount calculated is just
compensation.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

5 All. M/s United India Insurance Co. Ltd. Vs. Suresh & Anr.
179
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, total
amount of interest, accrued on the
principal amount of compensation is to be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-, insurance company/owner
is/are entitled to deduct appropriate
amount under the head of 'Tax Deducted
at Source' as provided u/s 194A (3) (ix)
of the Income Tax Act, 1961 and if the
amount of interest does not exceeds
Rs.50,000/- in any financial year, registry
of this Tribunal is directed to allow the
claimant to withdraw the amount without
producing
the
certificate
from
the
concerned Income- Tax Authority. The
aforesaid view has been reiterated by this
High Court in Review Application No.1
of 2020 in First Appeal From Order
No.23 of 2001 (Smt. Sudesna and
others Vs. Hari Singh and another)
while disbursing the amount.

13. Fresh Award be drawn accordingly
in the above petition by the tribunal as per
the
modification
made
herein.
The
Tribunals in the State shall follow the
direction
of
this
Court
as
herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.

14. The Tribunal will now not keep
any amount in fixed deposit as more than
30 years have elapsed from the date of
filing of the claim petition.

15. Record be sent back to the
tribunal.

16. This Court is thankful to the
learned counsels for ably assisting this
Court.
----------
(2023) 5 ILRA 179
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

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

First Appeal From Order No. 651 of 1996

M/s United India Insurance Co. Ltd.
 ...Appellant
Versus
Suresh & Anr. ...Respondents

Counsel for the Appellant:
Sri Anubhav Sinha, Sri Vipul Kumar

Counsel for the Respondents:
Sri A.K. Singh

Civil Law - Motor Accident Claim -
Respondent
injured-denied
by
insurance
company-issue of negligence decided -driver
negligent-composite
negligence
qua
the
claimant who was cleaner on the vehicle -driver
was negligent-injured was 26 years of agesuffered 40% disability-amount calculated is just
compensation.

Appeal dismissed. (E-9)

List of Cases cited:

1. First Appeal From Order No. 1818 of 2012 (
Bajaj Allianz General Insurance Co.Ltd. Vs Smt.
Renu Singh & ors.) decided on 19.7.2016

2. Khenyei Vs New India Assurance Company
Limited & ors., 2015 LawSuit (SC) 469

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)
180 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Anubhav Sinha, learned
counsel for the appellant. None is present
for the respondent.

2. This appeal, at the behest of M/s
United India Insurance Company Limited
challenges the judgment and award dated
31.5.1996 passed by VIth Additional
District Judge/ Motor Accident Claims
Tribunal, Etah in Claim Petition No.252 of
1995 whereby the learned Tribunal has
awarded Rs. 1,72,800/- as compensation
with interest at the rate of 10% per annum
with a direction upon the appellant herein
to pay the above.

3. Be that as it may, as 27 years have
elapsed, this Court deems it fit to decide
this appeal where the Court had granted
stay vide order dated 4.3.1997.

4. Brief facts as culled out from the
record are that the respondent-injured
Suresh Kumar along with one another
person
namely
Jasveer
Singh
were
traveling in the truck owned by respondent
No.2 on the fateful day i.e. 27/28.7.1995.
At about 3.00 a.m. in the morning, they
were going to Ghaziabad after loading the
goods in Tata 407 No. HR29A/9974 from
Kashganj. The vehicle was driven by one
Chhote Singh who drove the vehicle rashly
and negligently. When the vehicle reached
near Bulandshahr, at Sikadrabad-Delhi
Road, the Tata 407 rammed into a
stationery
truck
which
injured
the
respondent and Jasveer Singh. From where
both of them have rushed to Sikandrabad
PHC. After being treated there for 24 hours,
the injured was brought to Dr. Virendra Pal,
the Orthopaedic surgeon who treated him.

5. On the claim petition being filed,
the Insurance Company filed its reply
which was one of denial they even denied
that the vehicle was insured with it. The
owner of the vehicle also filed reply which
was also of denial but he has accepted that
Suresh Kumar was an employee/cleaner
and was being paid Rs.500/- per month.
However,
his
permanent
partial
disablement as cleaner has been denied.
They have contended that as the owner and
Insurance Company of the other vehicle
has not been joined as party, the claim
petition would liable to be dismissed. The
Tribunal framed issues and decided issue of
negligence in favour claimant holding that
driver of Tata 407 was negligent.

6. It is submitted by learned counsel
for the appellant that the award is bad in the
eye of law as the other vehicle's owner and
Insurance Company has not been joined as
party. It is further submitted that the finding
of the Tribunal as far as issue of negligence
is concerned is bad. It is further submitted
that the quantum of compensation awarded
by the Tribunal is also on the higher side
and requires to be modified.

7. 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.

8. The term negligence means failure
to exercise care towards others which a
reasonable and prudent person would in a
circumstance or taking action which such a
reasonable person would not. Negligence
can be both intentional or accidental though
it 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
5 All. M/s United India Insurance Co. Ltd. Vs. Suresh & Anr.
181
by the negligent party then he is directly
liable otherwise the principle of "res ipsa
loquitur" meaning thereby "the things
speak for itself" would apply.

9. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or 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.

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
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
182 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

emphasis added

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

"4. It is a case of composite
negligence where injuries have been caused
to the claimants by combined wrongful act
of joint tort feasors. In a case of accident
caused by negligence of joint tort feasors,
all the persons who aid or counsel or direct
or join in committal of a wrongful act, are
liable. In such case, the liability is always
joint and several. The extent of negligence
of joint tort feasors in such a case is
immaterial for satisfaction of the claim of
the plaintiff/claimant and need not be
determined by the by the court. 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
5 All. M/s United India Insurance Co. Ltd. Vs. Suresh & Anr.
183
the case of contributory negligence, a
person who has himself contributed to the
extent cannot claim compensation for the
injuries sustained by him in the accident to
the extent of his own negligence;whereas in
the case of composite negligence, a person
who has suffered has not contributed to the
accident but the outcome of combination of
negligence of two or more other persons.
This Court in T.O. Anthony v. Karvarnan
& Ors. [2008 (3) SCC 748] has held that in
case of contributory negligence, injured
need
not
establish
the
extent
of
responsibility
of
each
wrong
doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong doer separately. It is only in the case
of contributory negligence that the injured
himself has contributed by his negligence
in the accident. Extent of his negligence is
required to be determined as damages
recoverable by him in respect of the
injuries have to be reduced in proportion to
his contributory negligence. The relevant
portion is extracted hereunder :

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

7. Therefore, when two vehicles
are involved in an accident, and one of the
drivers claims compensation from the other
driver alleging negligence, and the other
driver denies negligence or claims that the
injured claimant himself was negligent,
then it becomes necessary to consider
whether the injured claimant was negligent
and if so, whether he was solely or partly
responsible for the accident and the extent
of his responsibility, that is his contributory
negligence. Therefore where the injured is
himself partly liable, the principle of
'composite negligence' will not apply nor
can there be an automatic inference that
the negligence was 50:50 as has been
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
184 INDIAN LAW REPORTS ALLAHABAD SERIES
applied to the instant cases as the liability
of the joint tort feasor is joint and several.
In the instant case, there is determination
of inter se liability of composite negligence
to the extent of negligence of 2/3rd and
1/3rd of respective drivers. Thus, the
vehicle - trailor-truck which was not
insured with the insurer, was negligent to
the extent of 2/3rd. It would be open to the
insurer being insurer of the bus after
making payment to claimant to recover
from the owner of the trailor-truck the
amount to the aforesaid extent in the
execution proceedings. Had there been no
determination of the inter se liability for
want of evidence or other joint tort feasor
had not been impleaded, it was not open to
settle such a dispute and to recover the
amount in execution proceedings but the
remedy would be to file another suit or
appropriate proceedings in accordance
with law.

What emerges from the aforesaid
discussion is as follows :

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

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

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

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

emphasis added

12. Looking to the factual averments,
the principle for deciding negligence has
been properly evaluated. The vehicle in
which injured was traveling rammed into
the stationery truck. It was early morning
when the incident took place. The driver
has absented himself. The oral testimony is
truthful and nothing contrary is proved by
the Insurance Company. Hence, the finding
is affirmed.

13. The next submission is that the
owner and driver of the other vehicle
involved in the accident was not joined as
party. The said ground fails as it was case
of composite negligence qua the claimant
who was cleaner on the vehicle whose
driver drove the vehicle negligently.

14. The injured was 26 years of age.
He had suffered 40% disability. He was a
cleaner. The injured lost his teeth, his eye
sight is damaged. The amount calculated by
5 All. Shrimati Kamlesh & Ors. Vs. Rajendra Kumar & Ors.
185
the Tribunal is just compensation and no
inference is called for.

15. In view of the above, this appeal
stands dismissed. Record and proceedings
be sent back to the Tribunal forthwith. The
amount kept in fixed deposit be forthwith
disbursed to the respondent No.1.

16. This Court is thankful to Anubhav
Sinha, learned counsel for the appellant for
getting this old matter disposed of.
----------
(2023) 5 ILRA 185
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2023

BEFORE

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

First Appeal From Order No. 962 of 1994

Shrimati Kamlesh & Ors. ...Appellants
Versus
Rajendra Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri Y.S. Bohra

Counsel for the Respondents:
Sri Arvind Kumar, Sri Anubhav Sinha

Civil Law - Motor Accident Claim- Impugned
award-accident and issue of negligence not
dispute-quantum
of
compensation
to
be
decided-deceased was 27 years-Tribunal -
wrongly assessed monthly income as Rs. 600-it
would be at least Rs. 900 per month in the year
of accident-deceased was in age bracket of 2630- 40 % can be granted-1/3 deduction
granted-multiplier would be 17-no-pecuniary
damages granted.

Appeal partly allowed. (E-9)

List of Cases cited:
1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 LawSuit (SC) 1093

2. Sarla Verma & ors. Vs Delhi Transport
Corporation & anr., 2009 LawSuit (SC)

3. Gobald Motor Service Ltd. & anr. Vs R.M.K
Veluswami & ors., 1962 SCR(1) 929

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

5. A.V. Padma Vs Venugopal, Reported in 2012
(1) GLH (SC), 442

6. Smt. Hansaguri P. Ladhani Vs The Oriental
Insurance Company Ltd., reported in 2007(2)
GLH 291

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

8. R/Special Civil Application No.4800 of 2021
(The Oriental Insurance Co. Ltd. v. Chief
Commissioner of Income Tax (TDS) decided on
5.4.2022.

9. Bajaj Allianz General Insurance Company Pvt.
Ltd. Vs U.O.I.

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

1. Heard Sri Y.S. Bohra, learned
counsel for the appellant, Sri Anubhav
Sinha, learned counsel for respondent -
insurance
company
and
perused
the
judgment and order impugned. None
appears for owner.

2. This appeal, at the behest of the
claimant, challenges the judgment and award
dated 11.05.1994 passed by the Motor
Accident Claims Tribunal/Additional District
Judge, Bulandshahr (hereinafter referred to as
'Tribunal') in M.A.C.P No.29 of 1984
awarding
a
sum
of
Rs.85,000/-
as
compensation with interest at the rate of 12%.