# Oriental Insurance Comp v. Pramod Kumar Srivastava & Ors

- **Citation:** (2022) 2 ILRA 730
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-05
- **Case number:** First Appeal From Order No. 534 of 2000
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/oriental-insurance-comp-v-pramod-kumar-srivastava-ors-48152
- **Pages:** 6

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988
- Section 3 - Necessity for driving
liscence , Section 149 (2) (a) (ii) - a
condition excluding driving by a named
person or persons or by any person who
is not duly licenced , or by any person
who has been disqualified for holding or
obtaining a driving licence during the
period of disqualification - negligence -
principle of "res ipsa loquitur" - "the
things speak for itself" -principle of
contributory negligence - A person who
either contributes or author of the
accident
would
be
liable
for
his
contribution to the accident having
taken place.(Para - 10,11)

Claimant was the driver of tempo - no driving
licence - driver of the truck has not stepped
into the witness box. -- truck and the tempo
are of unequal magnitude - driving the truck
in rash and negligent manner - Tribunal
awarded a sum of Rs.1,00,000/- - with
interest at the rate of 12% as compensation
to the respondent claimant - aggrieved by the
order of trinbunal - appeal filed by the
Insurance company .

HELD:-An additional sum of Rs. 25,000/- @
6% granted to respondent-claimant. The
reason for granting additional amount is that
while granting the amount of Rs.1,00,000/-,
the Tribunal has not added any amount under
the head of future loss of income . Rate of
interest of 12% granted by Tribunal not
disturbed looking to the passage of time and
the
injuries
which
the
claimant
has
sustained.(Para - 20,21)

Appeal partly allowed. (E-7)

List of Cases cited:-
2 All. Oriental Insurance Comp. Vs. Pramod Kumar Srivastava & Ors.
731

## Text

730 INDIAN LAW REPORTS ALLAHABAD SERIES
land is sold, Courts have allowed deduction
considering principles of largeness of area,
which vary from 20 to 75%. If we apply
15% appreciation per anum to the rate of
land in sale deed dated 6.7.1990, it would
come to around Rs.46,000/- for 1800
square feet in two years and if we apply
30% of deduction in respect of largeness of
area, it will reduce to about Rs.29,000/- and
odd for 1800 square feet. There is not much
difference in two rates and probably, for
this reason, Reference Court has followed
the rates shown in sale deed 6.7.1990,
which was executed two years back
without making any enhancement or
deduction of any amount.

37. In the entirety of facts and
circumstances of the case, we do not find
that rates determined by court below can be
said to be excessive and inflated to such an
extent that the same should be reversed or
interfered with by this Court in this appeal.

38. Question, therefore, formulated
above, is answered by holding that market
value for the purposes of compensation
determination of court below is neither
unjust, unreasonable or excessive and
hence, it warrants no interference.

39. The appeal, therefore, lacks merit.
Dismissed with costs.
----------
(2022)02ILR A730
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2022

BEFORE

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

First Appeal From Order No. 534 of 2000

Oriental Insurance Comp. ...Appellant
Versus
Pramod Kumar Srivastava & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Ajay Singh

Counsel for the Respondents:
Sri Sanjay Kumar Srivastava

(A) Civil Law - Motor Vehicles Act, 1988
- Section 3 - Necessity for driving
liscence , Section 149 (2) (a) (ii) - a
condition excluding driving by a named
person or persons or by any person who
is not duly licenced , or by any person
who has been disqualified for holding or
obtaining a driving licence during the
period of disqualification - negligence -
principle of "res ipsa loquitur" - "the
things speak for itself" -principle of
contributory negligence - A person who
either contributes or author of the
accident
would
be
liable
for
his
contribution to the accident having
taken place.(Para - 10,11)

Claimant was the driver of tempo - no driving
licence - driver of the truck has not stepped
into the witness box. -- truck and the tempo
are of unequal magnitude - driving the truck
in rash and negligent manner - Tribunal
awarded a sum of Rs.1,00,000/- - with
interest at the rate of 12% as compensation
to the respondent claimant - aggrieved by the
order of trinbunal - appeal filed by the
Insurance company .

HELD:-An additional sum of Rs. 25,000/- @
6% granted to respondent-claimant. The
reason for granting additional amount is that
while granting the amount of Rs.1,00,000/-,
the Tribunal has not added any amount under
the head of future loss of income . Rate of
interest of 12% granted by Tribunal not
disturbed looking to the passage of time and
the
injuries
which
the
claimant
has
sustained.(Para - 20,21)

Appeal partly allowed. (E-7)

List of Cases cited:-
2 All. Oriental Insurance Comp. Vs. Pramod Kumar Srivastava & Ors.
731
1. Bajaj Allianz General Insurance Co.Ltd. Vs
Smt. Renu Singh & ors., First Appeal From
Order No. 1818 of 2012

2. Nirmala Kothari Vs United India Insurance Co.
Ltd. (2020) 4 SCC 49.

3. M/S New India Assurance Company Ltd. Vs
Smt. Usha Taneja & ors., First Appeal From
Order No.1972 of 2021

4. Anita Sharma Vs New India Assurance Co.
Ltd., (2021) 1 SCC 171

5. Oriental Insurance Company Limited Vs
Poonam Kesarwani & ors., 2008 LawSuit (All)
1557

6. National Insurance Co. Ltd. Vs Brij Pal Singh,
LAWS (ALL) 2002 (12) 19

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

8. United India Insurance Co. Ltd. Vs Sujata
Arora & ors., 2013 (3) T.A.C. 29 (SC)

9. National Insurance Co. Ltd. Vs Smt. Vidyawati
Devi & 2 ors., F.A.F.O. No.2389 of 2016

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

1. Heard learned counsel for the
appellant and learned counsel for the
respondent-claimant. Despite notice, none
has appeared for the owner.

2. This appeal challenges the
judgment and order dated 2.2.2000
passed by Special Judge/Motor Accident
Claims
Tribunal,
Kanpur
Dehat
in
M.A.C.P. No. 100 of 1992 filed by one
Pramod Kumar Srivastava, (respondentclaimant herein) whereby the Tribunal
awarded a sum of Rs.1,00,000/- with
interest
at
the
rate
of
12%
as
compensation to the claimant.

3. The factual scenario urged by the
claimant was the driver of tempo being No.
CIW 6668. Break of the said tempo failed
and, therefore, the claimant along with one
other person was rolling the tempo slowly.
At that point of time, one truck being No.
HYM 7245 which was being driven rashly
and negligently by its driver dashed the
claimant which caused multiple injuries to
the injured claimant. He had to be
hospitalized. He had suffered multiple
fractures. He was admitted in Madhuraj
Nursing Home. He had claimed a sum of
Rs. 1,50,000/- for the tortuous act of the
respondent. None appeared for the owner.
As far as Insurance Company and the
driver are concerned, they filed their reply
of negativity and contended that it was the
claimant who himself

4. At the outset, it is an admitted
position of fact that except filing reply, the
driver or the owner did not step into the
witness box. The Insurance Company has
contended that the accident took place due
to negligent driving of the injured and not
that of the driver of the truck.

5. Learned counsel for the appellant
has further submitted that oral testimony of
P.W.1 and P.W.2 has been misread by the
Tribunal. The second issue on which the
appeal has been preferred is that there is
breach of provisions of Section 3 of the
Act, 1988 and, therefore, the Insurance
Company is not liable to indemnify a third
party as per the provisions of Section 149
(2) (a) (ii) of the Act, 1988. The Tribunal
according to the learned counsel for the
appellant has committed an error in not
accepting the oral testimony of the
investigator appointed by the Insurance
Company and has taken a technical stand
that if the Transport Authority has not been
732 INDIAN LAW REPORTS ALLAHABAD SERIES
examined, then no adverse inference can be
drawn.

6. It is further submitted that the
evidence adduced by the appellant is a
public document and, therefore, when it is
proved that the Licensing Authority, Solan
has not issued the license, this fact should
not have been ignored by the Tribunal.

7. Lastly it is submitted that the
compensation awarded by the Tribunal is
on the higher side.

8. By way of this appeal, the
Insurance Company has felt aggrieved as
the Tribunal has negatived its contention
that the driver of the truck was not
negligent. The Insurance Company has also
felt aggrieved as though it was proved by
them that the driver of the truck was not
having driving license to drive the truck, a
negative finding has been returned by the
Tribunal. This according to the Insurance
Company is flaw in the judgment and they
could not have been made liable.

9. Having heard the learned counsel
for the parties, let us consider the issue of
negligence from the perspective of the law
laid down.

10. 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.

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

12. 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.
2 All. Oriental Insurance Comp. Vs. Pramod Kumar Srivastava & Ors.
733

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
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
734 INDIAN LAW REPORTS ALLAHABAD SERIES
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

13. While going through the facts of
this case, it is an admitted position of fact
as elaborately discussed by the Tribunal in
issue Nos. 1 and 2. The first fact is that the
driver of the truck has not stepped into the
witness box. Second, the truck and the
tempo are of unequal magnitude. The
evidence of P.W.1 and P.W.2 go to show
that the driver of the truck was driving the
truck in rash and negligent manner and
when the charge-sheet was led against the
driver of the truck, it cannot be said that the
claimant was negligent and was a co-author
of the accident. This Court cannot differ
with the finding of issue Nos.1 and 2 of the
Tribunal.

14. It is a matter of concern that the
Insurance Company has taken the plea
under Section 149 of Motor Vehicles Act,
1988 (hereinafter referred to as 'Act, 1988')
and has examined an advocate to bring
home their contention that the driver was
not having proper driving license. The law
on the point has been propounded recently
in Nirmala Kothari vs. United India
Insurance Co. Ltd. (2020) 4 SCC 49.

15. This Court in First Appeal From
Order No.1972 of 2021 (M/S New India
Assurance Company Ltd. v. Smt. Usha
Taneja and Others) while deciding the
issue of license on 3.1.2022 has discussed
the duty of the owner and Insurance
Company at length. In our case, learned
counsel for the appellant has contended that
the driver was not having valid driving
license which has been proved by leading
evidence.

16. The judgment of the Apex Court
in Anita Sharma v. New India Assurance
Co. Ltd. (2021) 1 SCC 171 would also
apply to the facts of this case.

17. In our case, though the Insurance
Company has examined an advocate who
was appointed as investigator, the decision
cited by learned counsel for the appellant
will not apply to the facts of this case as the
judgment
in
Oriental
Insurance
Company
Limited
Vs.
Poonam
Kesarwani and others, 2008 LawSuit
(All) 1557 will apply to the fact of this
case. The judgment in National Insurance
Co. Ltd. v. Brij Pal Singh, LAWS (ALL)
2002 (12) 19 relates to the fact that the
insured entrusted the truck to a person who
did not have valid and effective driving
license. In our case, it has not been proved
by the Insurance Company that the owner
was in nohow of the fact that the driver did
not have a valid driving license and,
therefore, the claimant cannot be done
injustice.

18. This Court directed deposit of
only 50% of the amount which has caused
harm to the third party. There was no
collusion between owner and claimant and
therefore also even if the said judgment is
made applicable, the later judgment in
Ram Chandra Singh v. Rajaram and
others, AIR 2018 SC 3789.

19. The judgment of this Court in
United India Insurance Co. Ltd. vs.
Sujata Arora and others, 2013 (3) T.A.C.
2 All. State of U.P. & Ors. Vs. Km. Anubhooti @ Eena
735
29 (SC) cannot be made applicable. Even if
we go by the fact that the driver and the
owner did not appear before Tribunal,
subject to a rider to prove that the owner
proves that he had taken all cautions,
recovery right is granted to the Insurance
Company.

20. As far as quantum is concerned, in
view of the decision of the this Court in
F.A.F.O. No.2389 of 2016 (National
Insurance Co. Ltd. Vs. Smt. Vidyawati
Devi And 2 Others) decided on 27.7.2016
and as per the oral submission of learned
counsel for the respondent-claimant, an
additional sum of Rs. 25,000/- is granted.
The reason for granting additional amount
is that while granting the amount of
Rs.1,00,000/-, the Tribunal has not added
any amount under the head of future loss of
income. His income was considered to be
Rs.5000/- and a lump sum of Rs.1,00,000/-
was granted by the Tribunal without any
further bifurcation which is bad in eye of
law but, however as the accident took place
in the year 1992 and 30 years have
practically
elapsed
a
lump
sum
of
Rs.25,000/- would be admissible to the
injured-claimant over and above the
amount granted by the Tribunal.

21. The rate of interest of 12%
granted by the Tribunal is not disturbed
looking to the passage of time and the
injuries which the claimant has sustained.
However,
this
additional
sum
of
Rs.25,000/- will carry 6% flat rate of
interest.

22. In view of the above, this appeal
is partly allowed. The remaining amount be
deposited with the accrued interest and the
claimant be given the same without
keeping the same in fixed deposit as more
than 30 years have elapsed and the claimant
must be in his prime now.

23. Record and proceedings be sent
back to the Tribunal forthwith
----------
(2022)02ILR A735
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2022

BEFORE

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

First Appeal From Order No. 876 of 1992

State Of U.P. & Ors. ...Appellants
Versus
Km. Anubhooti @ Eena ...Respondent

Counsel for the Appellants:
S.C.

Counsel for the Respondent:
Sri A.Kumar, Sri kamal Kumar Singh

(A) Civil Law - Motor Vehicles Act, 1988
- Section 173 - Appeal - Injuries caused to
minor - filed claim petition through legal
guardian - tribunal raised issues and granted
a sum of Rs.2,27,560/- with a rate of interest
12% - State felt aggrieved by award of
compensation to the respondent - hence
appeal.(Para - 2,4)

HELD:-Negligence proved and involvement
also proved. Driver never stepped into the
witness box, child is a third party and,
therefore, also this Court cannot take a
different view then that taken by the tribunal.
Compensation as awarded to the minor
cannot be said to be exorbitant. Amount of
Rs.2, 27,560/- for the injuries caused to the
minor even in those days cannot be said to be
such which requires any interference. The
interim relief shall stand vacated forthwith.
The amount be deposited with interest at the
rate of 9% . (Para -8,9 )