# Radhey Shyam Jawarani & Ors v. Walliguru Khan & Ors

- **Citation:** (2023) 4 ILRA 508
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-20
- **Case number:** First Appeal From Order No. 189 of 1993
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-jawarani-ors-v-walliguru-khan-ors-49990
- **Pages:** 16

## Headnote

A. Civil Law - Motor Vehicles Act, 1989Section
173-enhancement
of
awardTribunal without any basis awarded a
sum of Rs. 1,78,000/- towards nonpecuniary benefits which is contrary to
the settled principles as laid down by
the Apex Court-the claimants shall be
entitled to a total compensation of Rs. 7,
53, 835 which shall carry interest @ of
9%
per
annum
from
the
date
of
application till the date of its actual
payment-the claimants shall be entitled
to recover the total compensation from
either of the two joint tortfeasor and
any of the two joint tortfeasor who
satisfies the award shall be entitled to
recover the 50% of the award from the
other joint tortfeasor in accordance with
law as settled by the Apex Court in
Khenyei.(Para 1 to 71)
The writ petition is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,950 of 54,077. This is a partial read: ask again with offset=39950 for what follows._

508 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 4 ILRA 508
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.04.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

First Appeal From Order No. 189 of 1993
alongwith
First Appeal From Order Nos. 190 of 1993, 191
of 1993, 193 of 1993, 196 of 1993 & 198 of
1993

Radhey Shyam Jawarani & Ors.
 ...Appellants
Versus
Walliguru Khan & Ors. ...Respondents

Counsel for the Appellants:
S.P. Shukla, Abhishek Dhaon, Sankalp Mehrotra

Counsel for the Respondents:
M.S. Kotwal

A. Civil Law - Motor Vehicles Act, 1989Section
173-enhancement
of
awardTribunal without any basis awarded a
sum of Rs. 1,78,000/- towards nonpecuniary benefits which is contrary to
the settled principles as laid down by
the Apex Court-the claimants shall be
entitled to a total compensation of Rs. 7,
53, 835 which shall carry interest @ of
9%
per
annum
from
the
date
of
application till the date of its actual
payment-the claimants shall be entitled
to recover the total compensation from
either of the two joint tortfeasor and
any of the two joint tortfeasor who
satisfies the award shall be entitled to
recover the 50% of the award from the
other joint tortfeasor in accordance with
law as settled by the Apex Court in
Khenyei.(Para 1 to 71)
The writ petition is partly allowed. (E-6)

List of Cases cited:

1. Khenyei Vs New India Ass. Co. Ltd. & ors.
(2015) 9 SCC 273

2. Smt. Suman & ors. Vs Smt. Anisa Begum &
Another, FAFO No. 126 of 2010

3. National Ins. Co. Ltd. Vs Pranay Sethi (2017)
16 SCC 680

(Delivered by Hon'ble Jaspreet Singh, J.)

1. This is a bunch of six appeals
preferred under section 173 of the Motor
Vehicles Act 1989. Three appeals have
been preferred by the claimants seeking
enhancement of the award whereas the
other three appeals have been instituted by
the insurance company assailing the award.
Since the issue of enhancement shall come
subsequent as it first has to be determined
whether the award passed by the Tribunal is
in order. In case if the award survives only
then the issue of enhancement shall be
considered and in view thereof this Court
proposes to take up the three appeals first
which have been preferred by the insurance
company.

2. The record would indicate that in
the
appeals
filed
by
the
Insurance
Company, an application for substitution
has been moved as the respondent no. 3 Sri
Kungoo Mal had expired and he is survived
by his son Radhey Shyam Jawarani.
Significantly,
despite
the
applications
having been moved by the Insurance
Company in the appeals filed by them yet
the appellants of the other three appeals
which have been filed by the claimants
have not moved similar application for
substitution.

3. Be that as it may, considering that
the application for amendment is on record
in few appeals which are being allowed as
there is no issue of abatement as the legal
4 All. Radhey Shyam Jawarani & Ors. Vs. Walliguru Khan & Ors.
509
heir is already on record, consequently, the
said application shall also enure to the
benefit of three other appeals filed by the
claimants. The learned counsel for the
appellant Sri I.P.S. Chaddha is permitted to
carry out the necessary amendment in all
the six appeals during the course of the day.

4. To put the controversy in a
perspective, certain brief facts giving rise to
the instant appeals are being noticed
hereinafter: -

5. On 02.01.1992, Sri Radheshyam
Jawarani was driving a Fiat car bearing
number UGC 2184 and was returning from
Lucknow to Sitapur. The said car belonged to
Sri Kungoo Mal, the private respondent no 3
in the claim petition. Shri Kungoo Mal is the
father of Radheshyam Jawarani. Radheshyam
Jawarani was travelling along with his wife
Janki and his two daughters and a son. It is
also the case that on the fateful day that is
02.01.1992 when the car being driven by
Radheshyam Jawarani had reached near
Village Barabhari P.S. Kairabad on Lucknow
Sitapur Road at the relevant time a truck
bearing number UP 77/9256 was parked in
the center of the road. The truck did not have
any of its indicators or any reflectors to
caution that the truck was stationary on the
road. However, a small boy suddenly dashed
across the road from one side to another and
in order to save the said boy, the car of
Radheshyam Jawarani dashed with the
stationary truck. It is in this accident that
Radheshyam and his son Gaurav sustained
injuries whereas his wife Janki sustained
grievous injuries and while she was taken to
the district hospital at Sitapur, where she was
declared dead.

6. It is in respect of this accident that
three claim petitions came to be filed
before
the
Motor
Accidents
Claims
Tribunal/4th ADJ, Sitapur, (I) Claim
petition
No.
66/92
was
filed
by
Radheshyam along with his daughters and
sons for the compensation on account of
death of Smt. Janki. (II) Claim petition
bearing
No.
67/92
was
filed
by
Radheshyam for the injuries sustained by
him. (III) Claim petition bearing No. 68/92
was filed by Gaurav for the injuries
sustained by him.

7. After due contest, claim petition
No. 66/1992 was allowed and the Tribunal
awarded a sum of ₹ 5,36,100/-along with
interest at the rate of 15% per annum. This
award
dated
25.05.1983
has
been
challenged by the Insurance Company in
F.A.F.O. No. 193 of 1993 whereas the said
award
is
under
challenge
seeking
enhancement in F.A.F.O. No. 189 of 1993
filed by the claimants.

8. The claim petition No. 67/92 filed
by Radheshyam for the injuries sustained
by him was allowed and a sum of Rs.
40,000/- was awarded by the Tribunal
along with interest at the rate of 15% per
annum and this award dated 25.05.1993 is
challenged by the Insurance Company in
F.A.F.O. No. 190 of 1993 whereas the said
award is challenged by the claimant
seeking enhancement in F.A.F.O. No. 198
of 1993.

9. The Claim petition No. 68/92 filed
by Sri Gaurav Zawrani for the injuries
sustained by him was also allowed for a
sum of Rs. 40,000/- along with interest at
the rate of 15% per annum and this award
dated
25.05.1993
challenged
by
the
Insurance Company in F.A.F.O. No. 191 of
1993 whereas the said award dated
25.05.1993 is challenged by the claimant
seeking enhancement in F.A.F.O. No. 196
of 1993.
510 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Thus, it would be seen that
F.A.F.O. Nos. 189 of 1993, 198 of 1993
and 196 of 1993 are the three appeals
which have been filed by the claimants for
seeking enhancement of the awarded sum
vide award dated 25.05.1993. On the other
hand three appeals have been filed by the
insurance company bearing number 193 of
1993 which assails the award passed in
claim petition No. 66 of 1992. The F.A.F.O.
191 of 1993 arises out of the award passed
in Claim Petition No. 68 of 1992 relating to
the award passed in favour of Gaurav and
the appeal bearing number 190 of 1993
challenges the award passed in Claim
Petition No. 67 of 1992 relating to the
award in favour of Radheshyam for the
injuries sustained by him.

11. It is in the aforesaid backdrop, as
all the six appeals arise out of the same
accident relating to the same parties in
question and involving similar questions of
both law and fact therefore this court has
clubbed together all the six appeals which
have been heard together and are being
decided by this common judgment.

12. The court for the sake of
convenience is taking up the three appeals
preferred by the insurance company that is
bearing F.A.F.O. No. 193 of 1993, F.A.F.O.
No. 191 of 1993 and F.A.F.O. No. 190 of
1993 first.

13. Shri IPS Chaddha learned counsel
appearing for the insurance company has
assailed the award dated 25.05.1993 in the
three appeals on primarily two grounds. It
is urged by the learned counsel that the
Tribunal fell in error in passing the award
in Claim Petition No. 66 of 1992 which
related to the compensation on account of
death of Smt. Janki. It is submitted that
Smt. Janki was travelling in the car which
belonged to Sri Kungoo Mal and as the
insurance policy did not cover any other
person other than the driver, hence, no
compensation could have been awarded on
account of death of Smt. Janki. It is also
submitted that there is a clear finding that
the accident had occurred wherein the
driver of the car which is insured by the
insurance company was not negligent even
then the award has been passed against
insurance
company
which
is
not
sustainable.

14. It is submitted that as per the
version in the claim petition ,the Fiat car
was being driven by Radheshyam and in
order to save a boy who suddenly crossed
the road, Radheshyam dashed with the
stationary truck. The Tribunal has also
returned a finding that in the said accident
Radheshyam was not negligent rather it
was the offending truck which was parked
in the centre of the road which caused the
accident and for the said reason without
fastening the entire liability on the truck
owner and in absence of impleading the
insurer of the said truck, the award passed
against the appellant insurance company is
bad in the eyes of law.

15. It is also urged that if at all the
award is to be satisfied the same was the
liability of the insurer of the truck or its
owner and it could not be fastened on the
insurance company who had insured the
Fiat car bearing No. UGC 2184.

16. It is also submitted that where no
negligence has been attributed to the car
owner which is insured with the appellant
and it is also not a case of contributory
negligence yet apportioning half of the
awarded sum on the appellant and the other
half on the owner of the offending truck is
erroneous and by doing this the Tribunal
4 All. Radhey Shyam Jawarani & Ors. Vs. Walliguru Khan & Ors.
511
has completely misdirected itself which has
resulted in miscarriage of justice.

17. In so far as the award passed in
the case of Smt. Janki is concerned, it is
submitted by Sri Chaddha that the Tribunal
has awarded a total sum of Rs. 5,36,100/-
but from a bare perusal of the award, it
would indicate that the Tribunal has arrived
at the aforesaid sum by resorting to
surmises and conjectures. There is no
proper consideration and even otherwise on
the given facts and the material on record
there was no question of any enhancement,
inasmuch, as it would indicate that the
Tribunal has erroneously awarded a sum of
Rs.
1,78,100/-
towards
non-pecuniary
benefits but has disclosed no reason as to
how the aforesaid amount has been arrived
at.

18. The ground upon which the award
passed in the claim petitions filed by
Radheshyam and Gaurav is concerned, it is
urged that Radheshyam and Gaurav could
not establish any injury sustained by them
nor did they lead any evidence regarding
their injuries, treatment and in absence of
any documentary evidence to establish the
same, the amount which has been awarded
is not appropriate and is hugely excessive
rather the claim petitions ought to have
been dismissed for want of evidence.

19. It is further urged that a mere
statement was recorded in evidence that Sri
Radheyshyam had spent a sum of Rs.
60,000/- on his treatment and on the
treatment of his son Gaurav. It is also urged
that it is alleged that the said treatment was
made in the nursing home at Lucknow but
there is no document to indicate whether
the claimant Radheshyam and Gaurav were
ever admitted or treated in the said nursing
home as there is no evidence oral or
documentary to indicate the date upon
which they were admitted or were under
treatment. There is no prescription nor
there is any receipt for the medicines
bought. It is alleged that Radhey Shyam
had six broken teeth but there is nothing to
substantiate it, accordingly, there is no
question of enhancement of the award
rather the amount which has been awarded
also deserves to be set aside as without
establishing the injuries as well as the
amount spent on the treatment, the award
could not have been passed.

20. Thus, it is submitted that the
Tribunal has erred in fastening the liability
of the award on the appellant company. it is
urged that the award cannot be enhanced
and in light of the submissions made in
context with the appeals preferred by the
insurance company wherein the award has
been challenged, the award itself deserves
to be set aside and the appeals of the
insurance company deserves to be allowed
whereas the three appeals preferred by the
claimant
respondents
deserves
to
be
dismissed.

21. Shri Sankalp Mehrotra, learned
counsel
appearing
for
the
claimantrespondents
has
submitted
that
the
submission of the counsel for the insurance
company is not tenable for the reason that it
was a clear case of composite negligence
and in the aforesaid circumstances it is
open for the claimants to seek the awarded
sum from either the truck owner or the car
owner. It is urged that insofar as the claim
petition relating to death of Smt. Janki is
concerned, since she was travelling in the
car and was a third party and there is a
clear finding that she had not contributed to
the accident in any manner as the car was
being driven by Radheshyam, thus, it being
a case of composite negligence as a result
512 INDIAN LAW REPORTS ALLAHABAD SERIES
of which Smt. Janki expired leaving behind
her legal heirs who are the claimants and
they are entitled to claim the compensation
and also recover the same from the
insurance company as the car involved
bearing No. UGC 2184, in question, was
insured and involved in the mishap.

22. It is also submitted that the car
was badly damaged and the appellant
company has already cleared the claim for
the damage and loss occurred to the car and
as such at this stage it is not open for the
insurance company to allege that the
insurance company is not going to honour
the award. It is further submitted that
insofar as the injuries sustained by
Radheshyam and Gaurav was concerned,
their claim petition have been rightly
allowed as it was clearly established by the
evidence on record that they had sustained
injuries and for the aforesaid reasons the
appeals filed by the insurance company
deserve to be dismissed.

23. Shri Mehrotra learned counsel for
the claimants while pressing his appeals for
enhancement submits that the Tribunal has
erred in directing 50% of the amount
awarded to be recovered from the appellant
insurance company and though it was a case
of composite negligence and apportioning the
liability inter-se between the truck owner and
the insurance company of the car could have
been done but the rights of the claimantappellants could not be limited to 50% rather
the claimants are entitled to receive the entire
sum from either the insurance company or
the truck owner or both and it would be open
for the insurance company or the truck owner
to recover the apportioned part from the
other, as the case may be, after satisfying the
award in full to the claimants and to the
aforesaid extent, the award requires to be
modified.

24. It is also submitted that Smt. Janki
was an income tax payee and she had her
own income and considering her age, while
awarding compensation future prospects have
not been provided nor the Tribunal has
awarded appropriate sum towards nonpecuniary benefits, thus the award deserves to
be enhanced for non-pecuniary benefits after
factoring her future prospects.

25. It is also submitted that the Tribunal
has erred in not awarding appropriate
compensation towards injuries sustained by
Radhey Shyam and Gaurav and though a sum
of Rs. 60,000/- was claimed in respect of the
two claim petitions but only a sum of
Rs.40,000/- each awarded which is on the
lower side and accordingly the award
deserves to be enhanced in this respect as
well.

26. The Court has heard the learned
counsel for the parties and also perused the
material on record.

27.

In
order
to
resolve
the
controversy, the facts as pleaded by the
parties, require to be noticed.

28. To recapitulate, it is the case of
the claimants-appellants that on the fateful
day i.e. 02.01.1992 Sri Radhey Shyam
Jawarani was driving his Fiat Car bearing
No. UGC 2184 and in the said Car his wife
Smt. Janki, his son Sri Gaurav Jawarani
and his two daughters and a servant were
returning from Lucknow to Sitapur. As
soon as the car neared Village Barabhari,
P.S. Khairabad on Lucknow Sitapur road, a
small boy suddenly rushed to cross the road
and in order to save the said boy, Sri
Radhey Shyam Jawarani hit the stationary
truck which was parked in the centre of the
road and that too without any indicators or
4 All. Radhey Shyam Jawarani & Ors. Vs. Walliguru Khan & Ors.
513
any reflector to put the people to notice that
the truck was stationary.

29. It is also the case of the claimants
that the accident was an outcome of
negligence of the truck driver as there was
no occasion for the truck driver to park the
truck in the centre of the road and noticing
that the accident occurred on 02.01.1992
i.e. during winter time when the sun sets
early and at the relevant time i.e. 06:30-
07:00 PM, it was dark and without proper
indicators or reflector, the driver of the car
could not contemplate that the truck was
stationary and since he was attempting to
save the boy who suddenly crossed the
road, he hit the truck instead. It was the
duty of the truck driver to have ensured that
the truck was not left unattended in the
centre of the road without adequate
precautions.

30. The Tribunal has also returned a
finding that there was no negligence on the
part of the car driver rather the negligence
has been found to be that of the truck
driver/owner. In this regard, it will also be
relevant to notice that no appeal has been
preferred by the truck owner nor any cross
objections has been filed by him.

31. The effect of non-filing of a cross
appeal or cross objections is that the
finding returned by the Motor Accident
Claim Tribunal in so far as the negligence
of the truck owner/driver is concerned
remains intact and is liable to be accepted
by this Court in absence of any challenge
or material to the contrary.

32. Now, in the aforesaid backdrop if
the contention of the learned counsel for
the Insurance-company is examined, it
reveals that the thrust of the submission lies
in the fact that where the negligence has
been attributed to the offending truck and
no negligence has been attributed to the
Fiat car which is insured with the
Insurance-company, hence, under these
circumstances,
the
Insurance-company
cannot be fastened with the liability to
honour half of the awarded sum leaving the
other half to be recovered from the truck
owner rather if the award survives then the
entire liability of the award ought to be
fastened on the truck owner.

33. In order to meet the aforesaid
argument, it has been urged by the learned
counsel for the claimant-respondents that it
was a case of composite negligence and not
contributory negligence and thus in so far
as the claimants are concerned, they are
entitled to recover the same from the
Insurance Company or the truck owner as
their liability is both joint and several.

34. In order to explore the aforesaid
dissenting arguments, it will be first
necessary to notice the difference between
contributory negligence and composite
negligence.
In
case
of
contributory
negligence, a person who has himself
contributed to the accident cannot claim
compensation for the loss, injury or damage
sustained by him in the accident to the
extent of his negligence. Whereas in
composite negligence, a person who has
suffered has not contributed to the accident
but has suffered due to the combination of
outcome of negligence of two or more
wrong doers.

35. The difference between the two
type of negligence in context with a motor
accident has been very well explained by
the Apex Court in Khenyei Vs. New India
Assurance Company Limited and others;
(2015) 9 SCC 273 and the relevant
paragraphs reads as under:-
514 INDIAN LAW REPORTS ALLAHABAD SERIES

"15. There is a difference between
contributory and composite negligence. In
the case of contributory negligence, a
person who has himself contributed to the
accident 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 due to the
outcome of combination of negligence of
two or more other persons. This Court in
T.O. Anthony v. Karvarnan [(2008) 3 SCC
748 : (2008) 1 SCC (Civ) 832 : (2008) 2
SCC (Cri) 738] has held that in case of
contributory negligence, the injured need
not establish the extent of responsibility of
each wrongdoer separately, nor is it
necessary for the court to determine the
extent of liability of each wrongdoer
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 : (SCC pp.
750-51, paras 6-7)

"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 wrongdoers, it is said that the person
was injured on account of the composite
negligence of those wrongdoers. In such a
case, each wrongdoer, 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
wrongdoer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrongdoer 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 on
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 stand reduced in proportion to
his contributory negligence.

36. 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."

The decision in T.O. Anthony v.
Karvarnan [(2008) 3 SCC 748 : (2008) 1
SCC (Civ) 832 : (2008) 2 SCC (Cri) 738]
has been relied upon in A.P. SRTC v. K.
Hemlatha [(2008) 6 SCC 767 : (2008) 3
SCC (Cri) 34] .
4 All. Radhey Shyam Jawarani & Ors. Vs. Walliguru Khan & Ors.
515

16. In Pawan Kumar v. Harkishan
Dass Mohan Lal [(2014) 3 SCC 590 :
(2014) 2 SCC (Civ) 303 : (2014) 4 SCC
(Cri) 639] , the decisions in T.O. Anthony
[(2008) 3 SCC 748 : (2008) 1 SCC (Civ)
832 : (2008) 2 SCC (Cri) 738] and
Hemlatha [(2008) 6 SCC 767 : (2008) 3
SCC (Cri) 34] have been affirmed, and this
Court has laid down that where the
plaintiff/claimant himself is found to be
negligent jointly and severally, liability
cannot arise and the plaintiff's claim to the
extent of his own negligence, as may be
quantified, will have to be severed. He is
entitled to damages not attributable to his
own negligence. The law/distinction with
respect
to
contributory
as
well
as
composite negligence has been considered
by this Court in Machindranath Kernath
Kasar v. D.S. Mylarappa [(2008) 13 SCC
198 : (2009) 3 SCC (Cri) 519] and also as
to joint tortfeasors. This Court has referred
to Charlesworth and Percy on Negligence
as to cause of action in regard to joint
tortfeasors thus : (Machindranath Kernath
Kasar case [(2008) 13 SCC 198 : (2009) 3
SCC (Cri) 519] , SCC p. 212, para 42)

"42. Joint tortfeasors, as per 10th Edn.
of Charlesworth & Percy on Negligence,
have been described as under:

''Wrongdoers are deemed to be joint
tortfeasors, within the meaning of the rule,
where the cause of action against each of
them is the same, namely, that the same
evidence would support an action against
them, individually.... Accordingly, they will
be jointly liable for a tort which they both
commit or for which they are responsible
because the law imputes the commission of
the same wrongful act to two or more
persons at the same time. This occurs in
cases of (a) agency; (b) vicarious liability;
and (c) where a tort is committed in the
course of a joint act, whilst pursuing a
common purpose agreed between them.'"

17. The question also arises as to the
remedies available to one of the joint
tortfeasors from whom compensation has
been recovered. When the other joint
tortfeasor
has
not
been
impleaded,
obviously question of negligence of nonimpleaded driver could not be decided.
Apportionment of composite negligence
cannot be made in the absence of
impleadment of joint tortfeasor. Thus, it
would be open to the impleaded joint
tortfeasors
after
making
payment
of
compensation, so as to sue the other joint
tortfeasor and to recover from him the
contribution to the extent of his negligence.
However, in case when both the tortfeasors
are before the court/Tribunal, if evidence is
sufficient, it may determine the extent of
their negligence so that one joint tortfeasor
can recover the amount so determined from
the other joint tortfeasor in the execution
proceedings, whereas the claimant has
right to recover the compensation from
both or any one of them.

18. This Court in National Insurance
Co. Ltd. v. Challa Upendra Rao [(2004) 8
SCC 517 : 2005 SCC (Cri) 357] with
respect to mode of recovery has laid down
thus : (SCC p. 523, para 13)

"13. The residual question is what
would
be
the
appropriate
direction.
Considering the beneficial object of the
Act, it would be proper for the insurer to
satisfy the award, though in law it has no
liability. In some cases the insurer has been
given the option and liberty to recover the
amount from the insured. For the purpose
of recovering the amount paid from the
owner, the insurer shall not be required to
file a suit. It may initiate a proceeding
before the executing court concerned as if
the dispute between the insurer and the
owner
was
the
subject-matter
of
determination before the Tribunal and the
issue is decided against the owner and in
516 INDIAN LAW REPORTS ALLAHABAD SERIES
favour of the insurer. Before release of the
amount to the claimants, owner of the
offending vehicle shall furnish security for
the entire amount which the insurer will
pay to the claimants. The offending vehicle
shall be attached, as a part of the security.
If necessity arises the executing court shall
take assistance of the Regional Transport
Authority concerned. The executing court
shall
pass
appropriate
orders
in
accordance with law as to the manner in
which the owner of the vehicle shall make
payment to the insurer. In case there is any
default it shall be open to the executing
court to direct realisation by disposal of the
securities to be furnished or from any other
property or properties of the owner of the
vehicle i.e. the insured. In the instant case,
considering the quantum involved, we leave
it to the discretion of the insurer to decide
whether it would take steps for recovery of
the amount from the insured."

22. What emerges from the aforesaid
discussion is as follows:

22.1. In the case of composite
negligence, the plaintiff/claimant is entitled
to sue both or any one of the joint
tortfeasors and to recover the entire
compensation
as
liability
of
joint
tortfeasors is joint and several.

22.2. In the case of composite
negligence, apportionment of compensation
between two tortfeasors vis-à-vis the
plaintiff/claimant is not permissible. He
can recover at his option whole damages
from any of them.

22.3. In case all the joint tortfeasors
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 tortfeasors is only for the
purpose of their inter se liability so that
one may recover the sum from the other
after making whole of the 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 the main case one joint tortfeasor can
recover the amount from the other in the
execution proceedings.

22.4. 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 tortfeasors. In such a case,
impleaded joint tortfeasor should be left, in
case he so desires, to sue the other joint
tortfeasor in independent proceedings after
passing of the decree or award."

37. The aforesaid decision of Khenyei
(supra) was followed by this Court in
F.A.F.O. No. 126 of 2010 (Smt. Suman
and Others Vs. Smt. Anisa Begam and
Another) along with other connected
matters which was decided on 22.02.2019.

38. Having noticed the settled legal
position regarding the contributory and
composite negligence and applying it to the
present case, it would indicate that in so far
as the case of Smt. Janki is concerned, it
can be a case of composite negligence so
also the case of Gaurav Jawrani but in so
far as the case of Radhey Shyam Jawrani is
concerned, it cannot be treated to be a case
of composite negligence.

39. As noticed above where a person
contributes to the wrong doing then it is a
case of contributory negligence and in the
instant case, the Fiat Car bearing No. UGC
2184 was being driven by Sri Radhey
Shyam Jawrani and as such the manner in
which the accident has occurred which has
been noticed in the previous paragraphs, it
4 All. Radhey Shyam Jawarani & Ors. Vs. Walliguru Khan & Ors.
517
was a case where the car being driven by
Sri Radhey Shyam Jawrani hit a stationary
truck and the only two vehicles involved
was the Fiat Car and the stationary truck.

40. In this scenario, after going
through the evidence which was led by Sri
Radhey Shyam Jawrani, it would indicate
that he had deposed that around 06:3007:00 PM on 02.01.1992 while a boy
suddenly crossed the road and also the
lights from an oncoming truck from the
opposite directions had blinded Radhey
Shyam Jawrani, hence, in order to avoid a
collision with the oncoming truck as well
as save the boy, he could not see the
stationary truck and he dashed against it.
The manner in which the accident has
occurred and explained in the deposition, it
cannot be said that there was no role of the
car driver at all. It may be true that the
truck ought not have been parked on the
road
without
reflectors/indicators
but
nevertheless in case if the deposition of Sri
Radhey Shyam Jawrani is believed in its
entirety, it would indicate that he had stated
that his speed was about 40 to 50 Kms. per
hour and he failed to see the said truck.
This also indicates a degree of negligence
on the part of the car driver as even from a
distance, the driver could have seen the
stationary truck from the lights of his own
car itself. Another reason why the car
driver was also negligent is of the fact that
while driving on a highway, it is but natural
that all sorts of vehicles including trucks
ply and it cannot be said that because of the
oncoming lights from a truck, Sri Radhey
Shyam Jawrani was blinded and in order to
avoid the collision, he dashed in the
stationary truck which could not be seen.

41. In view thereof, the negligence of
Sri Radhey Shyam Jawrani cannot be ruled
out and in the aforesaid facts and
circumstances,
the
Tribunal,
though,
without
recording
any
finding
on
contributory negligence in so far as the case
of Sri Radhey Shyam Jawrani has yet
apportioned the liability 50% on the car as
well as 50% on the truck and this
apportionment is affirmed by this Court and
it is held that Sri Radhey Shyam Jawrani
was also responsible and contributed to the
accident and the Tribunal has erred in
coming
to
the
conclusion
that
the
negligence was solely of the truck owner
and it also indicates that the Tribunal has
not sifted through the evidence available on
record in the right perspective keeping the
concept of negligence in mind which the
Tribunal is required to inquire in a petition
under Section 166 of the Motor Vehicles
Act, 1988.

42. In light of the aforesaid, the Court
finds substance in the submission of
learned counsel for the Insurance Company
that the car driver was also negligent and
had contributed to the accident.

43. Having said that, it will also be
seen that this contributory negligence can
only be attributed to the case of Sri Radhey
Shyam Jawrani and cannot be extended to
the other two namely Smt. Janki and Sri
Gaurav. Accordingly, while considering the
respective submissions of the parties, the
case of Smt. Janki and Sri Gaurav will be
considered
as
a
case
of
composite
negligence where the accident is the
outcome of wrong doing of two persons
namely the car driver and the truck
driver/owner and as far as the case of Sri
Radhey Shyam Jawrani is concerned that
would be treated to be a case of
contributory negligence.

44. Now, the stage is set to examine
the matter in respect of the claim petitions
518 INDIAN LAW REPORTS ALLAHABAD SERIES
in context to the submissions advanced by
the learned counsel for the respective
parties.

A:-
Claim
of
Radhey
Shyam
Jawarani:-

45.

Considering
the
respective
submissions and from the perusal of the
material on record, it would be seen that the
main contention of the learned counsel for
the Insurance Company is that it was a case
of contributory negligence and treating the
same as such 50% of the award has been
apportioned on the Insurance Company
whereas the remaining 50% has been
apportioned on the truck owner but while
dealing with the issue, the Tribunal has
held that the negligence was solely of the
truck owner. This finding of the Tribunal,
noticed above in the preceding paragraphs
has been held to be fallacious and
accordingly it cannot be said that Sri
Radhey Shyam Jawrani did not contribute
to the accident. Thus, the case of Radhey
Shyam Jawrani is treated as a case of
contributory negligence and in this light it
will further have to be seen as to how much
many injuries and quantum of damages has
been sustained and how the amount as
granted by the Tribunal can be sustained or
enhanced since a contention has been
raised by the learned counsel for the
Insurance Company that there was no
material or evidence to indicate the injuries
sustained as well as the amount spent and
without considering the material on record
a sum of Rs. 40,000/- has been awarded in
a mechanical manner.

46. In this context, if the material on
record is seen, it would reveal that Sri
Radhey Shyam Jawrani deposed before the
Tribunal that he had sustained injuries. He
further deposed that he was admitted in the
District Hospital, Sitapur for few days and
thereafter he was even admitted to Krishna
Medical Center at Lucknow where he had
undergone his treatment which included for
even loss of few teeth and on the aforesaid
he had to spend about Rs. 60,000/- on his
treatment as well on the treatment of his
son Gaurav.

47. During his cross-examination, Sri
Radhey Shyam Jawrani admitted that he
had not filed any document regarding his
treatment or regarding the medication.
Thus, since there was no material on record
to establish the nature of injuries as
sustained by Sri Radhey Shyam Jawrani, it
is very difficult to fathom as to how the
Tribunal arrived at a conclusion to award a
sum of Rs. 40,000/- to Sri Radhey Shyam
Jawarani. Apparently, the findings returned
by the Tribunal in this regard is based on
pure surmise and conjecture. If at all, Sri
Radhey Shyam Jawrani had sustained
injuries as was stated by him in his
examination-in-chief then surely he would
have adequate documents including his
admission and discharge from the District
Hospital, Sitapur as well as from Krishna
Medical Center at Lucknow. If he had
broken few teeth then naturally, he would
have consulted a dentist and there ought to
have been some x-ray plates but none of
this was available or produced before the
Court.

48. Even leaving all these facts
behind the screen for the time being yet the
record reflects that there is not a single
prescription
by
any
doctor
or
any
Medication
Practitioner.
No
medicine
prescribed nor any receipt for any medical
consultation, radiological assistance or
medicine purchased and in absence of such
vital
and
important
documents,
the
contention that the claimant Sri Radhey
4 All. Radhey Shyam Jawarani & Ors. Vs. Walliguru Khan & Ors.
519
Shyam Jawarani received serious injuries
does not find corroboration or support from
the material on record. Sri Radhey Shyam
Jawrani is admittedly an income tax payee
and is having a separate business and being
a person well acquainted in business and
worldly affairs despite the same he did not
file
such
documents
on
record
to
substantiate his contentions which leads to
an inference against Sri Radhey Shyam
Jawarani.

49. This Court thus finds that the
amount as awarded by the Tribunal in case
of Sri Radhey Shyam Jawrani is excessive
and not based on any evidence. Having said
that it will also be relevant to notice that on
the record, there is a Insurance Surveyor's
Report
which
also
annexes
certain
photographs of the damaged and mangled
Fiat Car and looking into the manner in
which the accident occurred and that one of
the co-traveller/passenger expired as well
as the condition of the car definitely some
injuries may have occurred to the driver of
the car and taking note of the aforesaid
facts and on account of absence of evidence
on behalf of the claimants, this Court
awards a notional amount of Rs. 5,000/- in
favour of the claimant Sri Radhey Shyam
Jawrani
and
also
noticing
that
he
contributed to the accident, hence, 50%
thereof being attributable to his negligence
thus he shall be entitled to recover only
50% of the awarded amount from the truck
owner i.e. Walliguru Khan.

50. Thus, in view of the aforesaid
F.A.F.O. No. 190 of 1993 is partially allowed
and a total sum of Rs. 5,000/- is awarded to
the claimant Sri Radhey Shyam Jawrani of
which only 50% shall be recoverable from
the truck owner Walliguru Khan along with
interest at the rate of 9% per annum from the
date of the application till the date of its
actual payment. Accordingly, the award dated
25.05.1993 passed in Claim Petition No. 67
of 1992 shall stand modified to the aforesaid
extent and the appellant company shall not be
liable to pay in this regard.

51. In light of the findings given herein,
there is no question of enhancing the awarded
amount and for the aforesaid reasons the
F.A.F.O. No.