# Smt. Rani @ Raj Kumari & Ors v. Kamlakat Gupta & Ors

- **Citation:** (2022) 3 ILRA 877
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-22
- **Case number:** First Appeal From Order No. 1493 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rani-raj-kumari-ors-v-kamlakat-gupta-ors-47602
- **Pages:** 8

## Headnote

Civil Law - Motor Vehicle Act, 1988 -
Principle of Contributory negligence-age of
deceased-35 years-deduction of 1⁄4-amount of
non-pecuniary damages be 70,000/-multiplier
be 15- Judgment and award passed by the
Tribunal modified.

Appeal partly allowed. (E-9)
List of Cases cited:

## Text

3 All. Smt. Rani @ Raj Kumari & Ors. Vs. Kamlakat Gupta & Ors.
877
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."

14. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount along with additional 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.

15. We are thankful to learned
counsels for the parties for ably assisted the
Court.

16. Record be sent back to court below
forthwith, if any.

17. We are thankful to learned
counsels for the parties for ably assisted the
Court.
----------
(2022)03ILR A877
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2021

BEFORE

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

First Appeal From Order No. 1493 of 2013

Smt. Rani @ Raj Kumari & Ors.
 ...Appellants
Versus
Kamlakat Gupta & Ors. ...Respondents

Counsel for the Appellants:
Sri A.K. Ojha, Sri Harish Chandra Mishra

Counsel for the Respondents:
Sri Rahul Sahai, Sri Harish Chandra Mishra,
Sri Rahul Sahai, Sri Om Prakash Tripathi

Civil Law - Motor Vehicle Act, 1988 -
Principle of Contributory negligence-age of
deceased-35 years-deduction of 1⁄4-amount of
non-pecuniary damages be 70,000/-multiplier
be 15- Judgment and award passed by the
Tribunal modified.

Appeal partly allowed. (E-9)
List of Cases cited:

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

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

3. T.O. Anthony Vs Karvarnan & ors. [2008 (3)
SCC 748]

4. Malarvizhi & ors. Vs United India Insurance
Co. Ltd. & anr., 2020 (4) SCC 228

5. United India Insurance Co. Ltd. Vs Indiro Devi
& ors. 2018 (7) SCC 715

6. The Oriental Insurance Co. Ltd. Vs Mangey
Ram & ors., 2019 0 Supreme (All) 1067

7. New India Assurance Co. Vs Urmila Shukla
decided by the Apex Court on 6.8.2021 reported
in MANU/SCOR/24098/2021

8. Kirti & ors. Vs Oriental Insurance Co. Ltd.
reported in 2021(1) TAC

9. Sarla Verma & ors.Vs Delhi Transport Corp. &
anr., 2009, Law Suit (SC) 613

10. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Comp. Ltd., reported in 2007(2) GLH
291
878 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Smt. Sudesna & ors. Vs Hari Singh & anr.
Review Application No.1 of 2020 in First Appeal
From Order No.23 of 2001

12. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd. First Appeal From
Order No.2871 of 2016
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard learned counsel for the
appellant and learned counsel for the
respondent-Insurance Company.

2. This appeal, at the behest of the
claimants, challenges the judgment and
award dated 30.4.2012 passed by Motor
Accident
Claims
Tribunal/Additional
District and Sessions Judge(Ex/ Cadre)
Jhansi, (hereinafter referred to as 'Tribunal')
in M.A.C. No. 668 of 2009 (Smt. Rani @
Raj Kumari and others Vs. Kamlakant
Gupta and others).

3. Brief facts as culled out from the
record are that on 02.09.2009 deceased
Sobran Singh was returning to his home
Kot from Jhansi on his motorcycle bearing
no. U.P. 93 K-4069, at 7:00 p.m. near
bridge ahead of village Bhojla. The driver
of a jeep Gypsy bearing no. U.P. 93 Q6471 coming from opposite direction was
driving the jeep rashly and negligently and
dashed into the motorcycle of deceased
Sobran Singh as a result of which Sobran
Singh sustained grievous injuries in his
head and leg. The deceased was taken to
Medical College Jhansi for treatment from
where he was referred to Gwalior and
during treatment at Gwalior Hospital he
succumbed to his injuries on 10.09.2009 i.e
after about 8 days.

4. The deceased was 33 years of age
at the time of accident. He was working in
a crusher machine company and earning
Rs. 6000/- p.m and also maintaining
agriculture field of his own. He was
survived by his mother, father, widow,
three daughters and a son. The Tribunal has
considered his income to be Rs. 45,00/-
p.m, deducted 1/4th towards personal
expenses
of
the
deceased,
granted
multiplier of 17, granted Rs.10,000/-
towards
medical
expenses,
granted
Rs.5,000/- towards funeral expenses, Rs.
25,000/- as compensation for loss of love
and affection and ultimately assessed the
total compensation to be Rs. 7,28,500/-.

5. Learned counsel for the appellant
has submitted that the amount deducted
towards personal expenses should be onefifth and not one-fourth. It is further
submitted that income of Rs. 45,00/- p.m is
on the lower side. Multiplier of 17 is on the
lower side. He was young person of 35
years who had left behind him three
daughters and a son, mother, father and his
widow.

6. As against this, Shri Rajiv Ojha,
learned
counsel
for
the
respondentInsurance Company opposed the fact that
deductions towards personal expenses
should be one-third as the wife alongwith
four children would have their own share as
they are minor and the father who is alive
would be looking after his wife, however, it
is prudent to deduct one-fourth. It is further
submitted
that
the
quantum
of
compensation awarded by the Tribunal is
just and proper and does not call for any
interference by this Court.

7. As this appeal is of the year 2013.
The learned counsel for the respondent
requested that the matter be settled as per
Pranay Shetty. The learned cousnel for the
appellant who is holding brief refused to do
3 All. Smt. Rani @ Raj Kumari & Ors. Vs. Kamlakat Gupta & Ors.
879
the same. Hence, this Court is obliged to
decide this matter. The deceased was a
worker in crusher machine, his income was
not proved in the year of accident i.e 2009.
This Court cannot accept that the amount of
Rs. 6,000/- as his income in absence of any
proof. However, the tribunal has committed
an error in not adding 40% to his annual
income as he was below 40 years of age.

8. The term negligence means failure
to exercise care towards others which a
reasonable and prudent person would in a
circumstance or taking action which such a
reasonable person would not. Negligence
can be both intentional or accidental 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.

9. 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.

10. The Division Bench of this Court
in First Appeal From Order No. 1818 of
2012 ( Bajaj Allianz General Insurance
Co.Ltd. Vs. Smt. Renu Singh And
Others) decided on 19.7.2016 has held as
under: :

"16. Negligence means failure to
exercise required degree of care and
caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence.
It is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one. It is rather a
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no
legal consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

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

18. 10th Schedule appended to
Motor
Vehicle
Act
contain
statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation
clearly directs that the driver of every
motor vehicle to slow down vehicle at every
880 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

22. By the above process, the
burden of proof may ordinarily be cast on
the defendants in a motor accident claim
petition to prove that motor vehicle was
being driven with reasonable care or that
there is equal negligence on the part the
other side."

emphasis added

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

"4. It is a case of composite
negligence where injuries have been
caused to the claimants by combined
wrongful act of joint tort feasors. In a case
of accident caused by negligence of joint
tort feasors, all the persons who aid or
counsel or direct or join in committal of a
wrongful act, are liable. In such case, the
liability is always joint and several. The
extent of negligence of joint tort feasors in
such a case is immaterial for satisfaction of
the claim of the plaintiff/claimant and need
not be determined by the by the court.
However, in case all the joint tort feasors
are before the court, it may determine the
extent of their liability for the purpose of
adjusting 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
3 All. Smt. Rani @ Raj Kumari & Ors. Vs. Kamlakat Gupta & Ors.
881
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 wrongdoers. 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 wrongdoer separately, nor is it necessary for the
court to determine the extent of liability of
each wrong-doer separately. On the other
hand where a person suffers injury, partly
due to the negligence on the part of
another person or persons, and partly as a
result of his own negligence, then the
negligence of the part of the injured
which contributed to the accident is
referred
to
as
his
contributory
negligence. Where the injured is guilty of
some negligence, his claim for damages
is not defeated merely by reason of the
negligence on his part but the damages
recoverable by him in respect of the
injuries stands reduced in proportion to
his contributory negligence.

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

18.
This
Court
in
Challa
Bharathamma &Nanjappan (supra) has
dealt with the breach of policy conditions
by the owner when the insurer was asked to
pay the compensation fixed by the tribunal
and the right to recover the same was given
to the insurer in the executing court
concerned if the dispute between the
insurer and the owner was the subjectmatter of determination for the tribunal
and the issue has been decided in favour of
the insured. The same analogy can be
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
882 INDIAN LAW REPORTS ALLAHABAD SERIES
insurer being insurer of the bus after
making payment to claimant to recover
from the owner of the trailor-truck the
amount to the aforesaid extent in the
execution proceedings. Had there been no
determination of the inter se liability for
want of evidence or other joint tort feasor
had not been impleaded, it was not open to
settle such a dispute and to recover the
amount in execution proceedings but the
remedy would be to file another suit or
appropriate proceedings in accordance
with law.

What emerges from the aforesaid
discussion is as follows :

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

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

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

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

12. The latest decision of the Apex
Court
in
Khenyei
Vs.
New
India
Assurance Company Limited & Others,
2015 Law Suit (SC) 469 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. Hence, the oral prayer that
deduction of 50% from the compensation
be made is rejected.

13. This takes this Court to the issue
of compensation. The Apex court decision
in Malarvizhi & Ors Vs. United India
Insurance
Company
Limited
and
Another, 2020 (4) SCC 228 and United
India Insurance Co. Ltd. Vs. Indiro0
Devi & Ors, 2018 (7) SCC 715. and in
The Oriental Insurance Company Ltd.
Vs. Mangey Ram and others, 2019 0
Supreme (All) 1067 and the recent
judgment of the Apex Court in New
India Assurance Company Vs. Urmila
3 All. Smt. Rani @ Raj Kumari & Ors. Vs. Kamlakat Gupta & Ors.
883
Shukla decided by the Apex Court on
6.8.2021
reported
in
MANU/SCOR/24098/2021 and Kirti and
others vs oriental insurance company ltd
reported in 2021(1) TAC 1It could not be
culled out from record that on what basis,
the Tribunal has deducted the pecuniary
benefits from the income cannot be
fathomed. The income of the deceased in
the year of accident and looking to his
profession can be considered to be
Rs.45,00/- per month, 40% as future loss of
income requires to be added in view of the
decision of the Apex Court in Pranay
Sethi (Supra). Deduction should be 1/4th
as he was 35 years as per the judgement of
Sarla Verma & Others Vs. Delhi Transport
Corporation and Another, 2009, Law Suit
(SC) 613. As far as amount under the head
of non-pecuniary damages are concerned, it
should be Rs.70,000/- as non-pecuniary
damages. As far as multiplier is concerned,
it is 15 as his date of birth shows that he
was about 35 and a half years.

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

i. Income Rs 45,00/-p.m

ii. Percentage towards future
prospects : 40% namely Rs.18,00/-

iii. Total income : Rs. 45,00 + Rs.
18,00 = Rs.6300/-

iv. Income after deduction of
1/4th : Rs. 4,725/-

v. Annual Income : 4,725 x 12 =
56,700/-

vi. Multiplier applicable : 15

vii.
Loss
of
dependency:
Rs.56,700 x 15 = Rs.8,50,500/-

viii. Amount under non-pecuniary
head : 70,000/-

ix. Total compensation : Rs.
9,20,500/-

15. As far as issue of rate of interest is
concerned, it is maintained as granted by
the tribunal as respondent wanted this
settlement but it is adamancy of the counsel
for the appellant that though these are
parameters which are considered by the
Insurance Company, he refused to settle
and wanted the judgment on merits. It
should be 6% from the date of filing of the
petition till judgment and 5% thereafter as
the matter is pending and record is also not
before this Court.

16. In view of the above, the appeal
is partly allowed. Oral cross are allowed
and
compensation
is
recalculated.
Judgment and award passed by the
Tribunal shall stand modified to the
aforesaid
extent.
The
respondentInsurance Company shall deposit the
amount within a period of 12 weeks from
today with interest at the rate of 7% 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 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.
884 INDIAN LAW REPORTS ALLAHABAD SERIES

17. 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.

18. This Court is thankful to both the
learned Advocates for ably assisting this
Court.
----------
(2022)03ILR A884
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2022

BEFORE

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

First Appeal From Order No. 1902 of 2010

Ranjeet Singh ...Appellant
Versus
The Oriental Insurance Co. & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Nipun Singh

Counsel for the Respondents:
Sri Sushil Kumar Mehrotra

Civil Law - Motor Vehicle Act, 198810t h
schedule-Final
report
not
conclusive prove for vehicle not involved
- Clause-6 of such Regulation clearly
directs that the driver of every motor
vehicle to slow down vehicle at every
intersection or junction - court cannot
dispense
with
proof
of
negligence
altogether - rule of res-ipsa loquitor as
a rule of evidence may be invoked in
motor
accident
cases
-
matter
is
remanded to the Tribunal for deciding
the issue of compensation only.

Appeal allowed. (E-9)
List of Cases cited:

1. Varinderjit Singh Vs Tajinder Singh & ors.,
2008 (4) TAC 250 Punjab and Haryana
2. Devi Prasad Vs Zahur Khan, 2001 (2) TAC 419
Madhya Pradesh

3. Hanwar Lal Verma Vs Sharad Dholiya, 2007
ACJ 52

4. Kusum Lata & ors. Vs Satbir & ors., 2011 (2)
Supreme 207

5. Saroj & ors. Vs Het Lal & ors., (2011) 1 SCC
388

6. Vimla Devi & ors. Vs National Insurance Co.
Ltd. & ors., 2019 (133) ALR 768
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)