# Shri Krishna Prasad Tiwari & Ors v. Pramod Kumar Yadav & Ors

- **Citation:** (2023) 1 ILRA 851
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-24
- **Case number:** First Appeal From Order No. 481 of 2020
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-krishna-prasad-tiwari-ors-v-pramod-kumar-yadav-ors-49196
- **Pages:** 4

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 168: - Claimant's Appeal - for
enhancement award - Accident took placed due
to rash and negligent driving of driver of
offending bus who hit the motorcycle of
deceased - Contributory negligence - Evaluation
of evidence - this court finds that finding of
Tribunal in respect of the deceased in the
accident is perverse and against the evidence on
record - thus, court held that, accident was the
result of sole negligence of driver of offending
vehicle - and - in the light of judgment of
Hon'ble Apex Court rendered in case of Magma
General Insurance Co., the court directed to
Tribunal to recomputed the compensation by
treating the income of the deceased as Rs.
6000/- in place of Rs. 3000/- per month - along
with 6 % simple interest upon enhance amount
of compensation - appeal is partly allowed,
directions for payment, accordingly. (Para -7, 8,
9, 11)

Appeal is partly allowed. (E-11)

List of Cases cited:

## Text

1 All. Shri Krishna Prasad Tiwari & Ors. Vs. Pramod Kumar Yadav & Ors.
851
plaintiff/appellant is liable to pay court fees
under Section 7(v)(II) of the Court Fees
Act. Consequently, the order of the trial
court is set aside. It is further held that the
fixed
court
fee
paid
by
the
plaintiff/appellant is correct and proper in
the present case.

25. Accordingly, the appeal is allowed
with no order as to costs.

26. The trial court is further directed
to
conclude
the
suit
expeditiously,
preferably within one year from the date of
production of the certified copy of this
order.
In
case
any
adjournment
is
inevitable, the authority concerned may
grant the same by imposing a heavy cost
which may not be less than Rs.5,000/-.
----------
(2023) 1 ILRA 851
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 481 of 2020

Shri Krishna Prasad Tiwari & Ors.
 ...Appellants
Versus
Pramod Kumar Yadav & Ors.
 ...Opposite Parties

Counsel for the Appellants:
Sri Ram Singh, Sri Amit Kumar Singh

Counsel for the Opposite Parties:
Sri Arvind Kumar, Sri Arun Kumar Shukla

Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 168: - Claimant's Appeal - for
enhancement award - Accident took placed due
to rash and negligent driving of driver of
offending bus who hit the motorcycle of
deceased - Contributory negligence - Evaluation
of evidence - this court finds that finding of
Tribunal in respect of the deceased in the
accident is perverse and against the evidence on
record - thus, court held that, accident was the
result of sole negligence of driver of offending
vehicle - and - in the light of judgment of
Hon'ble Apex Court rendered in case of Magma
General Insurance Co., the court directed to
Tribunal to recomputed the compensation by
treating the income of the deceased as Rs.
6000/- in place of Rs. 3000/- per month - along
with 6 % simple interest upon enhance amount
of compensation - appeal is partly allowed,
directions for payment, accordingly. (Para -7, 8,
9, 11)

Appeal is partly allowed. (E-11)

List of Cases cited:

1. Magma General Insurance Co. Ltd. Vs Nanu
Ram Alias Chuhru Ram & ors. (2018 vol. 18 SCC
130.

2. Sudhir Kumar Rana Vs Surinder singh & ors.
(2008 Vol. 2 TAC 769 SC).

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Ram Singh, learned
counsel for the claimants/appellants and Sri
Arun Kumar Shukla, learned counsel for
the respondents.

2. The claimants/appellants being
dissatisfied
with
the
quantum
of
compensation have preferred the present
appeal with a prayer for enhancement of
compensation.

3.

Learned
counsel
for
the
claimants/appellants has contended that
finding of the Tribunal that since the
deceased was not having a valid driving
licence to drive the motorcycle, therefore,
there was some negligence of the deceased
in the accident is perverse and against the
record inasmuch as there was no evidence
852 INDIAN LAW REPORTS ALLAHABAD SERIES
on record to prove the negligence of the
deceased in the accident. It is further
submitted that claimants/appellants had
produced eye witness of the accident P.W.2
Ram Vilas Mishra, who proved the
negligence of the driver of the offending
vehicle namely Bus No.U.P.-70-CT-4080,
and thus, finding of the Tribunal in respect
of negligence of the deceased is not
sustainable in law.

4. It is further submitted that the
accident had taken place on 15.11.2015 and
the Tribunal has assessed the income of the
deceased as Rs.3,000/- per month and even
if there was no proof of income of the
deceased, the Tribunal ought to have taken
Rs.6,000/- as income of the deceased in
view of the judgement of Apex Court in the
case
of
Magma
General
Insurance
Company Ltd. Vs. Nanu Ram alias
Chuhru Ram and others 2018 (18) SCC
130 in computing the compensation.

5. Per contra, learned counsel for the
respondents would contend that it is
admitted that deceased was not holding a
valid
driving
licence
to
drive
the
motorcycle and thus, it is obvious that there
was some negligence on the part of the
deceased in the accident. He further
submits that compensation awarded by the
Tribunal is just and proper as there was no
proof of income of the deceased and hence,
the same does not call for interference by
this Court in the appeal.

6. I have considered the rival
submissions of the parties and perused the
record.

7.

In
the
instant
case,
the
claimants/appellants have produced the eye
witness P.W.2, who had categorically stated
that the accident was the result of rash and
negligent driving of driver of offending
vehicle. No evidence in rebuttal to the
testimony of P.W.2 was filed by the
insurance company. The Tribunal on its
own without there being any material on
record presumed that since the deceased
was not having valid driving licence to
drive the motorcycle, therefore, he was also
negligent in the accident. This Court finds
the finding of the Tribunal in respect of the
negligence of the deceased in the accident
is perverse and against the record. In this
respect, it would be apt to reproduce
paragraph nos.7 & 8 of the judgement of
Apex Court in the case of Sudhir Kumar
Rana Vs. Surinder Singh and Others
2008(2) T.A.C. 769 (SC):-

"7. The question is, negligence
for what? If the complainant must be guilty
of an act or omission which materially
contributed to the accident and resulted in
injury and damage, the concept of
contributory negligence would apply. [See
New India Assurance Company Ltd. v.
Avinash, 1988 A.C.J. 322: 1996 (2) T.A.C.
182 (Raj.)].

In T.O. Anthony v. Kavarnan &
Ors. (2008) 3 SCC 748, it was held:

"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
1 All. Shri Krishna Prasad Tiwari & Ors. Vs. Pramod Kumar Yadav & Ors.
853
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."

8. If a person drives a vehicle
without a licence, he commits an offence.
The same, by itself, in our opinion, may
not lead to a finding of negligence as
regards the accident. It has been held by
the courts below that it was the driver of
the mini-truck which was being driven
rashly and negligently. It is one thing to
say that the appellant was not possessing
any licence but no finding of fact has been
arrived at that he was driving the twowheeler rashly and negligently. If he was
not driving rashly and negligently which
contributed to the accident, we fail to see
as to how, only because he was not having
a licence, he would be held to be guilty of
contributory negligence."

8. Thus, in such view of the fact, this
Court finds that the accident was the result
of sole negligence of driver of offending
offending.

9. Further, the Apex Court in the case
of Magma General Insurance Company
(supra) has held the notional income to be
Rs.6,000/- per month and thus, accepting
the submission of learned counsel for the
claimants/appellants
in
view
of
the
judgement of Apex Court in the case of
Magma General Insurance Company
(supra), this Court directs the Tribunal to
recompute the compensation by treating
the income of the deceased as Rs.6,000/-
per month in place of Rs.3,000/- per
month.

10. It is also provided that enhanced
amount of compensation shall carry 6%
simple interest from the date of institution
of claim petition.

11. Thus, for the reasons given above,
the appeal is partly allowed and the award
of the Tribunal is modified to the extent as
indicated above. The insurance company is
directed to pay the enhanced amount of
compensation to the claimants/appellants
within a period of three months from the
date of production of a certified copy of
this order. There shall be no order as to
costs.
----------
854 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 1 ILRA 854
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2022

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 2385 of 2017
With
First Appeal From Order No. 3211 of 2017

TATA A.I.G. General Insurance Co. Ltd.
Parel Mumbai ...Appellant
Versus
Amar Kaur & Ors. ...Respondents

Counsel for the Appellant:
Sri Sushil Kumar Mehrotra

Counsel for the Respondents:
Sri Ram Singh, Sri Sudhir Dixit

Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 168, - UP Motor Vehicles
Rules, 1998- Rule 220-A(3) - Appeals -
claimants' seeks enhancement and Insurance
Co. assailed quantum of Compensation -
appreciation
of
evidence
-
accident
and
accidental death is not in dispute - court finds
that - learned tribunal not determined the
compensation lawfully while computing the
amounts under the heads of Salary, future
prospects & conventional heads and interest
except application of multiplier - hence, appeal
of insurance Co. is dismissed but, in the light of
judgment of Hon'ble Apex court rendered in
case of Pranay Sethi's, Urmilla Shukla's, Sarla
Verma's, Sarla Devi's, K.R. Madhusudhan's, K.L.
Narayana Reddy's claimants' Appeal is partly
allowed - impugned award modified & enhanced
from Rs. 34,96,000/- to Rs. 39,17,563/- along
with 7% interest - directions issued accordingly.
(Para - 18, 19, 21, 22, 23, 24, 25, 26)

Appeal is partly allowed. (E-11)

List of Cases cited:

1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., (2017 (16) SCC 680),

2. New India Assurance Co. Ltd. Vs Urmilla
Shukla & ors. (2021 SSC Online SC 822),

3. Smt. Sarla Verma & ors. v. Delhi Transport
Corp. & anr. (2009 (6) SCC 121),

4. Divisional manager, Royal Sundaram Alliance
Insurance Co. Ltd. Vs Sarladevi & ors. (2013 (1)
TAC 77 (Mad),

5. K R Madhusudhan VS Administrative Officer
(2011 vol. 4 SCC 689),

6. Puttamma Vs K. L. Narayana Reddy (2013
vol. 15 SCC 45),

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Shri Ram Singh, learned
counsel for the appellant-claimants and
Shri Sushil Kumar Mehrotra, learned
counsel
for
the
appellant-Insurance
Company.

I. INTRODUCTION

2. These two appeals arise out of an
award made by the learned Motor Accident
Claims Tribunal/Additional District Judge,
Aligarh1 in Motor Accident Claim Petition
No. 709 of 2014 (Amar Kaur and another
Vs. Tata A.I.G. General Insurance Co. Ltd.
and others) dated 11.04.2017 by partly
allowing the claim of the claimants.

2.1. The appeals have been filed
by the Insurance Company and the
claimants respectively and are being
decided by a common judgement.

II. Case of the claimants and
respondents before the learned tribunal: