# Smt. Anita & Ors v. Sri Anuj Gupta & Anr

- **Citation:** (2021) 7 ILRA 349
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-14
- **Case number:** FAFO No. 2807 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anita-ors-v-sri-anuj-gupta-anr-47097
- **Pages:** 8

## Headnote

Sri Ashish Kumar Singh, Sri S.K. Mehrotra

Quantum
of
Compensation
-
Composite/Contributory Negligence - It is
said to be contributory or composite negligence
when the deceased or the person concerned is
shown to have contributed to the accident and
the impact of the accident could have been
minimized if he had taken care. In the instant
case, since the deceased was not plying the
vehicle therefore deduction of 50% from the
compensation awarded is bad. (Para 14)

Appeal Partly Allowed. (E-8)

List of Cases cited:
350 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

7 All. Smt. Anita & Ors. Vs. Sri Anuj Gupta & Anr.
349

"The grounds urged before this
Court are in the realm of finding of facts and
not a question of law. As far as question of law
is concerned, the aforesaid judgment in Golla
Rajanna Etc. Etc. Versus Divisional Manager
and another (supra) in paragraph 8 holds as
follows
"the
Workman
Compensation
Commissioner is the last authority on facts. The
Parliament has thought it fit to restrict the
scope of the appeal only to substantial
questions of law, being a welfare legislation.
Unfortunately, the High Court has missed this
crucial question of limited jurisdiction and has
ventured to re-appreciate the evidence and
recorded its own findings on percentage of
disability for which also there is no basis."

10. As far as the question no. 1 is
concerned, it can be said that it is in the realm of
question of law. As far as question nos. 2 and 4
are concerned, they are in the realm of question
of fact. As far as the question no. 5 is
concerned, it is statutory provision under
Section 4A of the Employees Compensation
Act that the amount be paid with 12% rate of
interest. The questions no. 1 to 5 are answered
against the appellant and in favour of the
respondent.

11. In view of the above, the appeal fails
and is dismissed. The so called questions of law
framed by the Insurance Company are
answered against it. In fact the substantial
questions of law raised into 2 to 4 are the
questions of fact.

12. Interim relief, if any, shall stand
vacated forthwith.

(Ref: Civil Misc. Delay Condonation
Application)

1. Heard.

2. This is an application seeking
condonation of delay in filing appeal.

3. Cause shown is sufficient.

4. The delay in filing the appeal is
hereby condoned.

5. This application, accordingly,
stands allowed.
----------
(2021)07ILR A349
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2021

BEFORE

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

FAFO No. 2807 of 2013

Smt. Anita & Ors. ...Appellants
Versus
Sri Anuj Gupta & Anr. ...Respondents

Counsel for the Appellants:
Sri Nitin Sharma

Counsel for the Respondents:
Sri Ashish Kumar Singh, Sri S.K. Mehrotra

Quantum
of
Compensation
-
Composite/Contributory Negligence - It is
said to be contributory or composite negligence
when the deceased or the person concerned is
shown to have contributed to the accident and
the impact of the accident could have been
minimized if he had taken care. In the instant
case, since the deceased was not plying the
vehicle therefore deduction of 50% from the
compensation awarded is bad. (Para 14)

Appeal Partly Allowed. (E-8)

List of Cases cited:
350 INDIAN LAW REPORTS ALLAHABAD SERIES
1. National Insurance Company Limited Vs
Pranay Sethi & ors. 2017 0 Supreme (SC) 105

2. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. First Appeal From Order
No. 1818 of 2012

3. Khenyei Vs New India Assurance Co. Ltd. &
ors. 2015 LawSuit (SC) 469

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

5. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co. Ltd. 2007 (2) GLH 291

6. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd. First Appeal From
Order No. 2871
of 2016

(Delivered by Hon'ble Subhash Chand, J.)

1. Heard Sri Nitin Sharma, learned
counsel for the appellant and Sri S.K.
Mehrotra,
learned
counsel
for
the
respondent-Insurance Company. None has
appeared for the owner.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 15.12.2012 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No.15, Meerut
(hereinafter referred to as 'Tribunal') in
M.A.C. No. 344 of 2009.

3. Brief facts as culled out from the
record are that on 2.11.2008 the deceased
along with other villagers was going from
village Kaili to Ghaziabad in the car and at
about 8.40 in the morning when they
reached near village Lakhankat at National
Highway 24, a Scorpio bearing No.DL 4
CNB-2772 dashed with the car. As a result
of that, all those who were sitting in the car
sustained injuries but the deceased had
sustained grievous injuries. He was shifted
from one hospital to other and ultimately
on 3.12.2008, he succumbed to his injuries
at Safdarjung Hospital, New Delhi.

4. The deceased was 45 years of age
at the time of accident. He was an
agriculturist and was having vocation of
advocacy and was earning Rs.8,000/- from
his each profession. He was survived by his
widow and two children. The Tribunal has
considered his income to be Rs.5,000/-,
deducted 1/3rd towards personal expenses
of the deceased, granted multiplier of 13,
granted Rs.3,90,000/- towards medical
expenses and ultimately assessed the total
compensation to be Rs.9,40,000/-. The
Tribunal held both the drivers namely
driver of the Car in which the deceased was
travelling and the driver of the Scorpio
50:50% negligent and as the owner/driver
of the car was not made party, deducted
50% of the amount of compensation.

5. It is submitted by learned counsel
for the appellants that the Tribunal has
deducted 50% of the award which is bad as
the deceased was not plying the vehicle
which met with accident.

6. Learned counsel for the appellant
has submitted that the deceased was an
agriculturist and was also in the profession
of
advocacy, hence,
his
income
as
considered by the Tribunal is on the lower
side and it should be considered to be
Rs.16,000/- per month namely Rs.8,000/-
from
each
profession.
It
is
further
submitted that th Tribunal did not grant any
amount for future loss of income of the
deceased and also the amount awarded
under non-pecuniary heads granted by the
Tribunal is on the lower side and which
should be as per the decision of the Apex
Court in National Insurance Company
Limited Vs. Pranay Sethi and Others,
7 All. Smt. Anita & Ors. Vs. Sri Anuj Gupta & Anr.
351
2017 0 Supreme (SC) 105. Lastly, learned
counsel for the appellant has submitted that
the interest as awarded by the Tribunal is
on the lower side and requires to be
enhanced.

7. As against this, Sri S.K. Mehrotra,
learned
counsel
for
the
respondentInsurance Company submits that income as
suggested by the appellants cannot be
granted even in the year of accident. It is
further submitted by Sri Mehrotra that the
Tribunal has erred in granting future loss of
income to be 40% as it should be 30% in
view of the decision of the Apex Court in
Pranay Sethi (Supra). This submission of
Sri Mehrotra is misread as the judgment
does not reflect any amount under the head
of future loss has been added to the datum
figure.

8. It is submitted by Sri Mehrotra that
the quantum of compensation and the
interest awarded by the Tribunal is just and
proper
and
does
not
call
for
any
interference by this Court.

9. Having heard the learned counsel
for the parties, let us consider the
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
352 INDIAN LAW REPORTS ALLAHABAD SERIES
principles, the negligence of drivers is
required to be assessed.

17. It would be seen that burden
of proof for contributory negligence on the
part of deceased has to be discharged by
the opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection
where two roads cross each other, it is the
duty of a fast moving vehicle to slow down
and if driver did not slow down at
intersection, but continued to proceed at a
high speed without caring to notice that
another vehicle was crossing, then the
conduct of driver necessarily leads to
conclusion that vehicle was being driven by
him rashly as well as negligently.

18. 10th Schedule appended to
Motor
Vehicle
Act
contain
statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation clearly
directs that the driver of every motor vehicle
to slow down vehicle at every intersection or
junction of roads or at a turning of the road.
It is also provided that driver of the vehicle
should not enter intersection or junction of
roads unless he makes sure that he would not
thereby endanger any other person. Merely,
because driver of the Truck was driving
vehicle on the left side of road would not
absolve him from his responsibility to slow
down vehicle as he approaches intersection
of roads, particularly when he could have
easily seen, that the car over which deceased
was riding, was approaching intersection.

19. In view of the fast and
constantly increasing volume of traffic,
motor vehicles upon roads may be
regarded to some extent as coming within
the principle of liability defined in
Rylands V/s. Fletcher, (1868) 3 HL (LR)
330.
From
the
point
of
view
of
pedestrian, the roads of this country have
been rendered by the use of motor
vehicles, highly dangerous. 'Hit and run'
cases where drivers of motor vehicles
who have caused accidents, are unknown.
In fact such cases are increasing in
number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the
case 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).
7 All. Smt. Anita & Ors. Vs. Sri Anuj Gupta & Anr.
353

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. 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 inter-se equities between them at
appropriate stage. The liability of each and
every joint tort feasor vis a vis to
plaintiff/claimant cannot be bifurcated as it
is joint and several liability. In the case of
composite negligence, apportionment of
compensation between tort feasors for
making payment to the plaintiff is not
permissible as the plaintiff/claimant has the
right to recover the entire amount from the
easiest targets/solvent defendant.

14. There is a difference between
contributory and composite negligence. In
the case of contributory negligence, a
person who has himself contributed to
the extent cannot claim compensation for
the injuries sustained by him in the
accident to the extent of his own
negligence;whereas
in
the
case
of
composite negligence, a person who has
suffered has not contributed to the accident
but the outcome of combination of
negligence of two or more other persons.
This Court in T.O. Anthony v. Karvarnan
& Ors. [2008 (3) SCC 748] has held that in
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
354 INDIAN LAW REPORTS ALLAHABAD SERIES
person or persons, and partly as a result of
his own negligence, then the negligence of
the part of the injured which contributed to
the accident is referred to as his
contributory negligence. Where the injured
is guilty of some negligence, his claim for
damages is not defeated merely by reason
of the negligence on his part but the
damages recoverable by him in respect of
the injuries stands reduced in proportion to
his contributory negligence.

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

18.
This
Court
in
Challa
Bharathamma &Nanjappan (supra) has
dealt with the breach of policy conditions
by the owner when the insurer was asked to
pay the compensation fixed by the tribunal
and the right to recover the same was given
to the insurer in the executing court
concerned if the dispute between the
insurer and the owner was the subjectmatter of determination for the tribunal
and the issue has been decided in favour of
the insured. The same analogy can be
applied to the instant cases as the liability
of the joint tort feasor is joint and several.
In the instant case, there is determination
of inter se liability of composite negligence
to the extent of negligence of 2/3rd and
1/3rd of respective drivers. Thus, the
vehicle - trailor-truck which was not
insured with the insurer, was negligent to
the extent of 2/3rd. It would be open to the
insurer being insurer of the bus after
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
7 All. Smt. Anita & Ors. Vs. Sri Anuj Gupta & Anr.
355
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

14. The latest decision of the Apex
Court in Khenyei (Supra) has laid down
one further aspect about considering the
negligence
more
particularly
composite/contributory
negligence.
The
deceased or the person concerned should be
shown to have contributed either to the
accident and the impact of accident upon
the victim could have been minimised if he
had taken care. In this case the deceased
was not the author or the co-author of the
accident. On facts, the deceased was not
plying the vehicle. Hence, the deduction of
50% from the compensation awarded is bad
and is set aside.

15. This takes this Court to the issue
of compensation. The income of the
deceased in the year of accident and
looking to his profession can be considered
to be Rs.10,000/- per month to which as the
deceased in the age bracket of 40 to 50
years, 30% as future loss of income
requires to be added in view of the decision
of the Apex Court in Pranay Sethi
(Supra). As far as amount under the head
of non-pecuniary damages are concerned, it
should be Rs.70,000/- + 10% increase as
per the decision of the Apex Court in
Pranay Sethi (Supra) as three years have
elapsed hence, the lump sum amount under
this head would be Rs.1,00,000/-. As far as
multiplier and amount awarded for medical
exepenses are concerned, they are just and
proper and does not call for interference of
this Court.

16. Hence, the total compensation
payable to the appellants is computed
herein below:

i. Income Rs.10,000/-

ii. Percentage towards future
prospects : 30% namely Rs.3000/-

iii. Total income : Rs. 10,000 +
3000 = Rs.13,000/-

iv. Income after deduction of
1/3rd : Rs. 8670/- (rounded up)

v. Annual income : Rs.8670 x 12
= Rs.1,04,040/-

vi. Multiplier applicable : 13

vii.
Loss
of
dependency:
Rs.1,04,040 x 13 = Rs.13,52,520/-

viii. Amount under non-pecuniary
head : 1,00,000/-

ix. Medical Expenses : 3,90,000/-
+ Rs. 10,000/- (for attendant and special
diet) as awarded by the Tribunal.

x.
Total
compensation
:
18,52,520/-

17. As far as issue of rate of interest is
concerned, it should be 7.5% in view of the
latest decision of the Apex Court in
National Insurance Co. Ltd. Vs. Mannat
356 INDIAN LAW REPORTS ALLAHABAD SERIES
Johal and Others, 2019 (2) T.A.C. 705
(S.C.) wherein the Apex Court has held as
under :

"13.
The
aforesaid
features
equally apply to the contentions urged on
behalf of the claimants as regards the rate
of interest. The Tribunal had awarded
interest at the rate of 12% p.a. but the same
had been too high a rate in comparison to
what is ordinarily envisaged in these
matters. The High Court, after making a
substantial enhancement in the award
amount, modified the interest component at
a reasonable rate of 7.5% p.a. and we find
no reason to allow the interest in this
matter at any rate higher than that allowed
by High Court."

18. No other grounds are urged orally
when the matter was heard.

18. 1 In view of the above, the
appeal is partly allowed. Judgment and
award passed by the Tribunal shall stand
modified to the aforesaid extent. The
respondent-Insurance
Company
shall
deposit the amount within a period of 12
weeks from today with interest at the rate
of 7.5% from the date of filing of the claim
petition till the amount is deposited. The
amount already deposited be deducted from
the amount to be deposited. The Insurance
Company who will deposit the entire
amount can have their right to recover the
amount from owner and the Insurance
Company of the other vehicle. As far as
deceased is concerned, it is a case of
composite negligence, hence, the amount
cannot be deducted from the compensation
awarded to the claimants who are the heirs
of a non tort-feasor.

19. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291 and this
High Court in , 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) and in
First Appeal From Order No.2871 of 2016
(Tej Kumari Sharma v. Chola Mandlam
M.S. General Insurance Co. Ltd.) decided
on 19.3.2021 while disbursing the amount.

20. This Court is thankful to both the
learned Advocates for getting this matter
disposed of during this pandemic.
----------
(2021)07ILR A356
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.07.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Habeas Corpus No. 906 of 2021

Rajeev Singh ...Petitioner
Versus
U.O.I. & Ors. ...Respondents