# Smt. Santosh & Ors v. United India Insurance Company Ltd. Mathura & Ors

- **Citation:** (2020) 7 ILRA 51
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-04
- **Case number:** First Appeal From Order No. 866 of 2003
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-santosh-ors-v-united-india-insurance-company-ltd-mathura-ors-45916
- **Pages:** 13

## Headnote

A. Civil Law - Motor Vehicles Act (59 of
1988) - Section 166, 168 - Accident - Claim
petition - Hyper Technical Approach - Tribunal
should not decide claim petition by taking hyper
technical approach and thereby frustrate the
provision of beneficial piece of legislation -
 Held - It was established that the deceased
definitely met with the accident involving two
vehicles - technical defect of pleading should
not be made the basis of rejection of the claim
petition (Para 9)

B. Civil Law - Motor Vehicles Act (59 of
1988) ) - Section 166, 173 - Accident claim
- Cause of accident - Contributory negligence
- Meaning, reiterated - Where the claimant
himself is found to be a party to the
negligence then the claimant claim to the
extent of his own negligence, as may be
quantified, will have to be severed & the
claimant can only be held entitled to such
part of damages/compensation that is not
attributable to his own negligence - a person
who either contributes or is author of the
accident would be liable for his contribution to
the accident having taken place (Para 16)

C. Civil Law - Motor Vehicles Act (59 of
1988) - Section 147 - Liability of insurance
company - it must be proved that there was no
breach of policy condition - Held -Driving license
of tractor trolly driver showed that driver had
license to drive light motor vehicle - Tractor is a
light motor vehicle - As driver had proper driving
license, there was no breach of policy condition
- Even if trolly is insured or not, Insurance
Company would be liable to pay compensation
(Para 19 20)

E. Civil Law - Motor Vehicles Act (59 of
1988)- Section 166 - Compensation - Rate of
Interest - it should be 7.5% (Para 24)

Appeal partly allowed. (E-5)

List of cases cited: -

1.Joshi Rajendrakumar Popatlal Vs Thakor
Ramnaji Hamirji & ors. reported in (2020) ACJ
365

## Text

_Characters 0–39,966 of 42,327. This is a partial read: ask again with offset=39966 for what follows._

7 All. Smt. Santosh Vs. United India Insurance Company Ltd., Mathura & Ors.
51
preparation of samples from all bundles
goes to show that there are manifest errors
factual and legal in the prosecution case
that warrants interference by this Court in
the impugned judgment and order.

24. In the result, both the appeals are
allowed. The impugned judgment and
order is set aside.

25. The appellants are on bail. The
sureties and personal bonds of the accused
appellants shall stand discharged.

26. Let a copy of this order be
transmitted
to
the
Court
below
for
necessary compliance.
----------
(2020)07ILR A51
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE

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

First Appeal From Order No. 866 of 2003

Smt. Santosh & Ors. ...Appellants
Versus
United India Insurance Company Ltd.
Mathura & Ors. ...Respondents

Counsel for the Appellants:
Sri B.P. Verma

Counsel for the Respondents:
Sri Mohan Srivastava

A. Civil Law - Motor Vehicles Act (59 of
1988) - Section 166, 168 - Accident - Claim
petition - Hyper Technical Approach - Tribunal
should not decide claim petition by taking hyper
technical approach and thereby frustrate the
provision of beneficial piece of legislation -
 Held - It was established that the deceased
definitely met with the accident involving two
vehicles - technical defect of pleading should
not be made the basis of rejection of the claim
petition (Para 9)

B. Civil Law - Motor Vehicles Act (59 of
1988) ) - Section 166, 173 - Accident claim
- Cause of accident - Contributory negligence
- Meaning, reiterated - Where the claimant
himself is found to be a party to the
negligence then the claimant claim to the
extent of his own negligence, as may be
quantified, will have to be severed & the
claimant can only be held entitled to such
part of damages/compensation that is not
attributable to his own negligence - a person
who either contributes or is author of the
accident would be liable for his contribution to
the accident having taken place (Para 16)

C. Civil Law - Motor Vehicles Act (59 of
1988) - Section 147 - Liability of insurance
company - it must be proved that there was no
breach of policy condition - Held -Driving license
of tractor trolly driver showed that driver had
license to drive light motor vehicle - Tractor is a
light motor vehicle - As driver had proper driving
license, there was no breach of policy condition
- Even if trolly is insured or not, Insurance
Company would be liable to pay compensation
(Para 19 20)

E. Civil Law - Motor Vehicles Act (59 of
1988)- Section 166 - Compensation - Rate of
Interest - it should be 7.5% (Para 24)

Appeal partly allowed. (E-5)

List of cases cited: -

1.Joshi Rajendrakumar Popatlal Vs Thakor
Ramnaji Hamirji & ors. reported in (2020) ACJ
365

2. Bimla Devi & ors. Vs Satbir Singh & ors.
(2013) 4 SCC 345

3. Gurdeep Singh Vs Bhim Singh (2013) 11 SCC
507

4. Sharanmma Vs North-East Karnataka RTC
(2013) 11 SCC 517
52 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Dulcina Fernandes Vs Joaquim Xavier, First
Appeal No. 216 of 2004 decided on 14.11.2008

6. Sunita & ors. Vs Raj St. Rd. Transport Corp. &
anr. (2019) AIR SC 994

7. Kumari Deepti Tiwari Vs Banwarilal 1965
LawSuit (MP) 94

8. Ravi Vs Badrinarayan & ors. (2011) Law Suit
SC 97

9. Kaushnuma Begum & ors. Vs The New India
Assurance
Co.
Ltd.
&
ors.
Decided
on
03.01.2001

10. Vimla Devi & ors. Vs National Insurance
Company Ltd. & ors.

10.Oriental insurance Co. Ltd. Vs Premlata
Shukla & ors. 15.05.2007

11. Jai Prakash Vs National Insurance Co. Ltd
(2010) 2 SCC 607

12. Pawan Kumar & anr. Vs M/S Harkishan Dass
Mohan Lal & ors.

13. Mukund Dewangan Vs Oriental Insurance
Comp. Ltd. Law SC (201)7 7 49

14. Sant lal Vs Rajesh & ors. (2017) 8 SCC 590

15. National Insurance Comp. Ltd. Vs Pranay
Sethi & ors. (2017) 0 Supreme SC 1050

16. Sarla Verma Vs Delhi Transport Corporation
(2009) 6 SCC 12

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

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

1. Heard Sri B.P. Verma, learned
counsel for the appellants, Sri Mohan
Srivastava,
learned
counsel
for
the
respondents- Insurance Company. None
appears for original owner for tempo
trailor.

2. This appeal, at the behest of the
claimants, challenges the judgment and
order dated 30.09.2002 passed by Special
Judge/Motor Accident Claims Tribunal,
Mathura
(hereinafter
referred
to
as
'Tribunal') in M.A.C. No. 289 of 2001.

3. The facts in nutshell are that on the
fateful day when the accident took place.
The tractor trolley owned by respondent
insured with the respondent-Insurance
Company
was
responsible
for
the
commission of the accident as it was
stationed in the middle of the road, in
which the deceased, who was a teacher by
profession and was going from Bhartpur
By-pass
bridge
on
25.5.2001
his
motorcycle dashed with the said tractor
owned by the respondent at about 9:30
p.m.. The claimants alleged that on
25.5.2001 due to the said accident the
husband of Santosh claimant no.1 got
injured and he had to be admitted to two
hospitals
first
from
25.05.2001
to
26.05.2001 and later from 26.05.2001 till
04.06.2001 where he scummed to the
accidental injuries on 04.06.2001. The
deceased left behind him two minor
children one of four years and one of 2
years and his young widow of 30 years. He
was also survived by his aged parents.
Bhagwan Singh deceased was 33 years of
age and was a teacher in a school earning
Rs.7,000/- per month also had agricultural
land. The deceased had sustained several
multiple injuries and the accident occurred
on National Highway No.2 at about 9.30
pm.. The deceased was travelling on his
motor cycle bearing No. U.P. 85C/6133.
The deceased was admitted in Swarn
Jayanti Samuhik Hospital, Mathura and
then when the said hospital felt that he was
sinking they referred him to Kamayani
Hospital, Agra from where he was shifted
Mathura. The respondent no..2 and 3 were
7 All. Smt. Santosh Vs. United India Insurance Company Ltd., Mathura & Ors.
53
the owners and drivers of the said tractor
trolly. The claimants claim was confronted
by the Insurance Company contending that
the vehicle was not insured with them.
There was collusion between owne and
claimants that the Charge sheet and F.I.R.
was not filed in time. No effective and
valid license was filed. The the owner of
the tractor trolly was not cooperating with
the
Insurance
Company.
There
was
inordinate delay in filing the F.I.R. The
driver of the tractor trolly was not negligent
but the deceased was negligent.

4. The owners of the tractor trolly
admitted the accident but denied their
negligence in operating the tractor trolly.

5. The claimants filed several
documentary evidence so as to prove the
hospitalization and death as well as
accident having occurred with the tractor
trolly.

6. Before I delve into the several
aspects of the matter from the record it is
clear that neither the Insurance Company
nor the owner of the tractor trolly ever
contended that the vehicle was not involved
in the accident. Despite that the claimants
claim petition in absence of any rebuttal
evidence being led was dismissed by
claims tribunal. The tribunal dismissed the
claim petition holing that the F.I.R. was
belated, it did not bear the number of the
tractor trolly and that there was collusion
between Police Authority and the claimants
and the owner and did not believe the oral
testimony of eye witness.

7. It is submitted by Sri B.P. Verma,
learned counsel for the appellant that the
Tribunal dismissed the claim by filmcy
reasons and order is perverse and dismissed
on the following counts.

1. Namely in the F.I.R. number of
Tractor Trolley No.U.P. 85 F 3120 was not
mentioned, F.I.R. alleged was filed after 14
days of accident. In the site plan, vehicle
was not shown to be there on the spot.
Head Constable submitted his charge sheet
report after 40 days of the accident
involving the said vehicle. The Tribunal
has disbelieved the involvement of the
vehicle.

2. Evidence of witness produced
by claimants was not believable.

3. The medical reports were
scanty and did not mentioned who brought
the injured to the hospital.

8. It is submitted by Sri Mohan
Srivastava, learned counsel for Insurance
Company that award cannot be found fault
with as the vehicle No.U.P. 85 F 3120 was
not involved in the accident. The vehicle
should have been taken in custody by the
police on the date of the accident as it is
mentioned in the F.I.R. that police
personnel came immediately and took
injured to hospital. The evidence of
witnesses examined by claimants were
rightly disbelieved by the tribunal.

9. While interpreting the provisions of
Section 168 and 168 (4) of the Motor
Vehicle Act, 1988 (hereinafter referred as
the ''Act') were ignored by the Tribunal
while deciding the matter. The Tribunal
rejected the clam petition, though the
deceased was admitted in the hospital and
the F.I.R. clearly spelt out that it was due to
the involvement of the vehicle. This fact
was proved as the driver fled away with the
vehicle though G.D. entry also there with
police authorities. The post mortom report
also proved the fact that deceased died due
to accidental injuries. The vehicle tractor
54 INDIAN LAW REPORTS ALLAHABAD SERIES
trolly was proved to be involved in the
accident. The tribunal held that the driver,
owner and insurance of the motor cycle
was not joined as a party. The accident had
taken place on 25.05.2001 at 9.30 p.m. as a
result of involment of tractor trolly which
was not disputed by owner or driver or
Insurance Company which has been proved
by cogent evidence just because there are
certain contradictions in the testimony of
the witness and because who got the
injured, in the hospital is not mentioned,
the claim petition was dismissed and being
the claimants' case is disbelieved. The fact
is that the charge sheet was filed pursuant
to F.I.R lodged is not just because in
dispute
the
tractor
trolly
was
not
confiscated detained on the spot it is held
that the vehicle was not involved in the said
accident. Recently the High court of
Gujarat in Joshi Rajendrakumar Popatlal
Vs.
Thakor
Ramnaji
Hamirji
and
Others, reported in 2020 ACJ 365 has
held that the Tribunal should not decide
claim petition by taking hyper technical
approach
and
thereby
frustrate
the
provision of beneficial peace of legislation.
The Apex Court in Bimla Devi and Ors.
Vs. Satbir Singh and Ors. 2013 (4) SCC
345 has held that hyper technicality should
not be allowed to frustrate the aim of
beneficial peace legislation. In our case
hyper technicality of the learned Tribunal
has resulted into the flaw in his award. It
was established that the deceased had
definitely met with the accident involving
two vehicles. It was also proved that the
accident was between the tractor trolly and
the motor cycle on which the deceased was
plying. The technical defect of pleading
should not have been made the basis of
rejection of the claim petition. I am
supported in my view by the decision of
Apex Court in the case of Gurdeep Singh
v. Bhim Singh, (2013) 11 SCC 507,
wherein provision of Section 173 of the
''Act' read with Section 96 of the Code of
Civil Procedure,1908 will permit this court
to reverse the perverse findings reached by
the tribunal. The Apex Court decisions in
Sharanmma V. North-East Karnataka
RTC, (2013) 11 SCC 517. The judgment
in
Dulcina
Fernandes
V.
Joaquim
Xavier, First Appeal No. 216 of 2004,
decided on 14.11.2008 with also help the
claimants. Therefore also the appeal will
have to succeed.

10. The judgments relied by the
learned counsel for the appellant herein
supports the judgment relied hereinabove.
The decision in Sunita & others Vs.
Rajasthan
State
Road
Transport
Corporation & Anothers reported in
2019 AIR SC 994 and the later judgment
thereafter will oblige this court to reverse
the award of Tribunal as the award is based
on a surmises and conjecture if there was
collusion between the claimants and the
owner, the Insurance Company could have
proved their case which they have not
proved. The Insurance Company has not
led any rebuttal evidence. The finding of
fact that the accident did not occure with
the tractor trolly is based on surmises and
conjunctures and is bad in law. The charge
sheet was laid after 40 days appears, reason
has been assigned by the police officer that
they had enquired from the A.R.T.O. about
the name of the owner of the tractor which
was given by A.R.T.O. belatedly. Had there
been a collusion between the police and the
owner and the claimants they would not
have inquired from A.R.T.O. about name
of owner, non mentioning of the number in
the GD entry or the F.I.R. was one of the
reasons for rejecting the claim petition. The
Insurance Company did not lead any
evidence has not contended in written
statement that tractor trolly was not
7 All. Smt. Santosh Vs. United India Insurance Company Ltd., Mathura & Ors.
55
involved in the accident. The owner nor the
Insurance Company have lead any evidence
to show that the tractor trolly was not
involved in the accident. The G.D. entry
was
there
and
F.I.R.
was
lodged
immediately after the death of the injured
namely after 04.06.2001. The driver of the
vehicle was arrested and was enlarged on
bail, these orders are on record of the
Tribunal. The A.R.T.O. took a long time in
supplying name of the owner of the vehicle
and just to come to a finding that the
witnesses were not reliable is bad in eye of
law. The provision of the Section 168(4) of
the Motor Vehicle Act has not been
followed by learned Tribunal and therefore
also the award requires interference. The
post mortom report went to show that the
deceased died out of accidental injuries.
The tractor trolly was confiscated by
police. The deceased survived for about 8
days after the incident. The finding that the
widow of the deceased did not see the
tractor trolly on the spot is a perverse
finding as she was not an eye witness. The
evidence of the other eye witness has been
wrongly discarded. The number of the
tractor was given immediately after the
accident just because who went to the
hospital with injured is not mentioned, the
learned Tribunal has disbelieved that the
accident took place. The deceased died due
to injury on his vital part i.e his head. All
these facts go to show that the Tribunal has
flawed in coming in to the conclusion that
the tractor trolly was not involved in the
accident. Once F.I.R and charge sheet were
filed it prima facie proves the involvement
of the tractor in the accident. The learned
Judge has committed an error of fact while
going through the record.

11. In our case also the appellants are
able to prove the factum of accident as the
eye witness P.W.2 Mahesh has given
proper account of the involvement. The
belated filing of charge sheet and F.I.R. has
been properly explained as the family
members were busy in giving medical aid
to the injured. Now G.D. entry was lodged.
The finding that there was collusion
between the family members, the police
and the owner and driver of the vehicle is
not proved. The police took him to the
hospital and just because no police was
examined can it be said that there was
malice. The Tribunal could have as per the
provisions of the act summoned the police
authorities for giving evidence which was
not done. The charge sheet is prima facie, a
document which would show that the
vehicle was involved. The accident took
place at night and the admission of the
respondent as per the Code of Civil
Procedure, 1908 was supposed to be looked
into just because Hari whose name figures
in the charge sheet as to the person who
took the deceased to the hospital was not
examined, the learned Tribunal goes to a
remote finding which cannot be accepted
even in regular Civil Court that the
document of both the hospitals did not
mention what treatment was given though
the document at Exhibit 23K shows that the
first hospital where he was treated for one
day referred him to Agra. The documents
are produced and the judgment of Oriental
Insurance Company Ltd. (Supra) and in the
case of Kumari Deepti Tiwari Vs.
Banwarilal 1965 LawSuit (MP) 94 would
help the appellants.

12. The tribunal has held that no
documents
of
Bhagwan
Singh
were
produced. Unfortunately, he has over
looked the documents at 11 G also which
shows that CT Scan, clinical observation,
medicine of P.P. medicos and the CT Scan
of
brain
advised
by Swarn
Jayanti
Samudayik Hospital, Mathura were already
56 INDIAN LAW REPORTS ALLAHABAD SERIES
on record. The learned Tribunal has over
looked
the
documents
of
Kamayani
Hospital
where
he
was
treated
till
04.06.2001. The delay in F.I.R. lodgment is
explained but the learned tribunal has
mislead itself. In coming to the conclusion
that deceased had no accidental injury. The
documents of Kamayani Hospital, Agra
shows that he was admitted due to
accidental injury and certificates for also
given to the said fact.. The fact that the
driver was enlarged on bail by the
concerned authority also goes in favour of
the claimant.

13. Learned counsel for the appellants
has relied on judgments in the case of Ravi
Vs. Badrinarayan & Ors. reported in
2011 Law Suit (SC) 97, Bimla Devi and
Ors. Vs. Satbir Singh and Ors. decided
on 28.02.2012, Kaushnuma Begum and
Ors. Vs. The New India Assurance Co.
Ltd. and Ors. decided on 03.01.2001,
Vimla Devi and Ors. Vs. National
Insurance Company Ltd. and Ors.
decided on 16.11.2018 and Oriental
insurance Co. Ltd. Vs. Premlata Shukla
and Ors. decided on 15.05.2007.

14. Even if there was collusion the
application under Section 170 of the Motor
Vehicle Act was filed and they were
permitted to lead all the evidence so as to
rebut all the averments made in the claim
petition and the reply filed by the
respondent owner of the vehicle.

15. The appeal was allowed holding
that vehicle was involved in the accident.
Initially I had thought of remanding the
matter but due to lockdown the judgment
could not be uploaded on 04.03.2020 i.e. on
the same date and while making corrections
this court felt that the issues which are
raised are similar or identical to those
raised in the judgment of Apex Court in the
case of Vimla Devi and Ors (Supra) and
therefore as per the provisions of Section
173 of ''The Act' read with Section 166,
158 and Section 140 of ''The Act' and the
judgement of Apex Court in the case of Jai
Prakash V. National Insurance Co. Ltd
2010 (2) SCC 607 and also 163 (A).
Should the matter be remanded was the
question which arose in my mind the
accident occurred in the year 2001, we are
20 years hence, the record is before this
court. The matter can be decided on the
touch stones of the seven para meters laid
down in para 26 to 33 of the decision in
Vimla Devi (Supra). Section 173, 166, 156,
140 reads as follows:-

"Section 173 of the Motor Vehicles
Act, 1988

173. Appeals.--

(1) Subject to the provisions of subsection (2) any person aggrieved by an
award of a Claims Tribunal may, within
ninety days from the date of the award, prefer
an appeal to the High Court: Provided that
no appeal by the person who is required to
pay any amount in terms of such award shall
be entertained by the High Court unless he
has deposited with it twenty-five thousand
rupees or fifty per cent. of the amount so
awarded, whichever is less, in the manner
directed by the High Court: Provided further
that the High Court may entertain the appeal
after the expiry of the said period of ninety
days, if it is satisfied that the appellant was
prevented by sufficient cause from preferring
the appeal in time.

(2) No appeal shall lie against
any award of a Claims Tribunal if the
amount in dispute in the appeal is less than
ten thousand rupees.
7 All. Smt. Santosh Vs. United India Insurance Company Ltd., Mathura & Ors.
57

Section 166 of the Motor Vehicles
Act, 1988

166.
Application
for
compensation.--

(1)
An
application
for
compensation arising out of an accident of
the nature specified in sub-section (1) of
section 165 may be made--

(a) by the person who has
sustained the injury; or

(b) by the owner of the property;
or

(c) where death has resulted from
the accident, by all or any of the legal
representatives of the deceased; or

(d) by any agent duly authorised
by the person injured or all or any of the
legal representatives of the deceased, as
the case may be: Provided that where all
the legal representatives of the deceased
have not joined in any such application for
compensation, the application shall be
made on behalf of or for the benefit of all
the legal representatives of the deceased
and the legal representatives who have not
so
joined,
shall
be
impleaded
as
respondents to the application. 1[(2) Every
application under sub-section (1) shall be
made, at the option of the claimant, either
to the Claims Tribunal having jurisdiction
over the area in which the accident
occurred, or to the Claims Tribunal within
the local limits of whose jurisdiction the
claimant resides or carries on business or
within the local limits of whose jurisdiction
the defendant resides, and shall be in such
form and contain such particulars as may
be prescribed: Provided that where no
claim for compensation under section 140
is made in such application, the application
shall contain a separate statement to that
effect immediately before the signature of
the applicant.] 2[***] 3[(4) The Claims
Tribunal shall treat any report of accidents
forwarded to it under sub-section (6) of
section
158
as
an
application
for
compensation under this Act.

Section
158
of
the
Motor
Vehicles Act, 1988

158.
Production
of
certain
certificates, licence and permit in certain
cases.--

(10 Any person driving a motor
vehicle in any public place shall, on
being so required by a police officer in
uniform authorised in this behalf by the
State Government, produce--

(a) the certificate of insurance;

(b)
the
certificate
of
registration;

(c) the driving licence; and

(d) in the case of a transport
vehicle, also the certificate of fitness
referred to in section 56 and the permit,
relating to the use of the vehicle.

(2) If, where owing to the
presence of a motor vehicle in a public
place an accident occurs involving death or
bodily injury to another person, the driver
of the vehicle does not at the time produce
the certificates, driving licence and permit
referred to in sub-section (1) to a police
officer,
he
shall
produce
the
said
certificates, licence and permit at the police
station at which he makes the report
required by section 134.
58 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) No person shall be liable to
conviction under sub-section (1) or subsection (2) by reason only of the failure to
produce the certificate of insurance if,
within seven days from the date on which
its production was required under subsection (1), or as the case may be, from the
date of occurrence of the accident, he
produces the certificate at such police
station as may have been specified by him
to the police officer who required its
production or, as the case may be, to the
police officer at the site of the accident or
to the officer-in-charge of the police station
at which he reported the accident:
Provided that except to such extent and
with such modifications as may be
prescribed, the provisions of this subsection shall not apply to the driver of a
transport vehicle.

(4) The owner of a motor vehicle
shall give such information as he may be
required by or on behalf of a police officer
empowered in this behalf by the State
Government to give for the purpose of
determining whether the vehicle was or
was not being driven in contravention of
section 146 and on any occasion when the
driver was required under this section to
produce his certificate of insurance.

(5) In this section, the expression
"produce his certificate of insurance"
means
produce
for
examination
the
relevant certificate of insurance or such
other evidence as may be prescribed that
the vehicle was not being driven in
contravention of section 146.

(6) As soon as any information
regarding any accident involving death or
bodily injury to any person is recorded or
report under this section is completed by a
police officer, the officer incharge of the
police station shall forward a copy of the
same within thirty days from the date of
recording of information or, as the case
may be, on completion of such report to the
Claims Tribunal having jurisdiction and a
copy thereof to the concerned insurer, and
where a copy is made available to the
owner, he shall also within thirty days of
receipt of such report, forward the same to
such Claims Tribunal and Insurer.

Section
140
of
the
Motor
Vehicles Act, 1988

140.
Liability
to
pay
compensation in certain cases on the
principle of no fault.--

(1) Where death or permanent
disablement of any person has resulted
from an accident arising out of the use of a
motor vehicle or motor vehicles, the owner
of the vehicle shall, or, as the case may be,
the owners of the vehicles shall, jointly and
severally, be liable to pay compensation in
respect of such death or disablement in
accordance with the provisions of this
section.

(2) The amount of compensation
which shall be payable under sub-section
(1) in respect of the death of any person
shall be a fixed sum of 1[fifty thousand
rupees] and the amount of compensation
payable under that sub-section in respect of
the permanent disablement of any person
shall be a fixed sum of 2[twenty-five
thousand rupees].

(3) In any claim for compensation
under sub-section (1), the claimant shall
not be required to plead and establish that
the death or permanent disablement in
respect of which the claim has been made
was due to any wrongful act, neglect or
7 All. Smt. Santosh Vs. United India Insurance Company Ltd., Mathura & Ors.
59
default of the owner or owners of the
vehicle or vehicles concerned or of any
other person.

(4) A claim for compensation
under sub-section (1) shall not be defeated
by reason of any wrongful act, neglect or
default of the person in respect of whose
death or permanent disablement the claim
has been made nor shall the quantum of
compensation recoverable in respect of
such death or permanent disablement be
reduced on the basis of the share of such
person in the responsibility for such death
or
permanent
disablement.
3[(5)
Notwithstanding anything contained in subsection (2) regarding death or bodily injury
to any person, for which the owner of the
vehicle is liable to give compensation for
relief, he is also liable to pay compensation
under any other law for the time being in
force: Provided that the amount of such
compensation to be given under any other
law shall be reduced from the amount of
compensation payable under this section or
under section 163A."

16. The term contributory negligence
and
composite
negligence
has
been
discussed time and again a person who
either contributes or is author of the
accident
would
be
liable
for
his
contribution to the accident having taken
place. The Apex Court in Pawan Kumar
& Anr vs M/S Harkishan Dass Mohan
Lal & Ors decided on 29 January, 2014
has held as follows:

7. Where the plaintiff/claimant
himself is found to be a party to the
negligence the question of joint and several
liability cannot arise and the plaintiff's
claim to the extent of his own negligence,
as may be quantified, will have to be
severed. In such a situation the plaintiff can
only be held entitled to such part of
damages/compensation
that
is
not
attributable to his own negligence. The
above principle has been explained in T.O.
Anthony (supra) followed in K. Hemlatha
& Ors. (supra). Paras 6 and 7 of T.O.
Anthony (supra) which are relevant may be
extracted hereinbelow:

"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.

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
60 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

17. The Division Bench of this Court
in First Appeal From Order No.1818 of
2012 ( Bajaj Allianz General Insurance
Company Limited Versus Smt. Renu Singh
and others) decided on 19.7.2016 has held
as under: -

"16. The term 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
cause physical injury to person. The degree
of care required, of course, depends upon
facts in each case. On these broad
principles, 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, 1988 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 should 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
7 All. Smt. Santosh Vs. United India Insurance Company Ltd., Mathura & Ors.
61
approaching intersection. This is termed
negligence.

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.
In
light
of
the
above
discussion, I am 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, Courts
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.

21. 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 of
driver of another vehicle."

18. The eyewitness goes to show that
the tractor trolly was parked in the middle
of the road. It is not proved that the
deceased was drunk or intoxicated as it is
not proved by any evidence. The post
mortom report filed also does not speak of
any such liquid or food material. The
tractor was parked facing towards Agra. It
was dead of night at 9:30 p.m. when the
deceased scooterist came from behind and
dashed with the stationary tractor trolly.
The negligence of the deceased can be
attributed to 50 per cent. The reason being
the tractor trolly was in the middle of the
road was without any side lights, without
indicators and it is proved that the accident
occurred.

Liability:-

19. The principals for directing the
Insurance Company to pay would be on the
basis of the fact that it is to be proved that
there is no breach of policy condition. The
driving license of the tractor trolly driver
shows that the driver he had license to
drive light motor vehicle. Tractor is a light
motor vehicle even if trolly is insured or
not the Insurance Company would be liable
as per Sant lal (infra).

20. This takes this court to the issue
of whether the Insurance Company is able
to prove that there was breach of policy
condition, they have not laid any evidence.
The license produced which is a xerox copy
goes to show that the driver of tractor trolly
was authorised to drive the tractor. It is
now a settled legal position of law as
initiated by the Apex Court in Mukund
Dewangan
Vs.
Oriental
Insurance
Company Ltd. reported in Law(SC) 2017
62 INDIAN LAW REPORTS ALLAHABAD SERIES
7 49 retreated in Sant lal Vs. Rajesh and
Others reported in (2017) 8 SCC 590 that
if a person has a driving license of LMV he
can drive a tractor trolly. Hence, it is
conclusively proved that the driver had
proper driving license there was no breach
of policy condition also.

21. As the uploading took time
instead of remanding the matter which
would take further time during this
pandemic the matter is decided here in the
especial facts and circumstances as the
record is before this court and as per the
judgment of Apex Court in Vimal Devi
(Supra) and Section 173 of Act which has
been reproduced hereinabove.

Compensation:-

22. This takes this court to the last
issue of compensation as per the judgment
in Vimla Devi (Supra) simple calculation
would wipe the tears of a young widow
who has waited for 20 years and the
children who have lost their only bread
winner who was a teacher and was
admittedly earning Rs.6,000/- per month as
per the documentary evidence. He was
survived by his widow, two minor children
aged one daughter and one son four and
two years who by now must have become
major, and the aged parents. The deceased
was 33 years of age when the accident
occurred. Hence, even by the thumb rule as
held in National Insurance Company
Limited Vs. Pranay Sethi and Others,
2017
0
Supreme
(SC)
1050.
Rs.6,000+Rs.3,000/- would be Rs.9,000/-
deduction of 1/3rd would be Rs.3,000/- for
personal expenses as there are five
survivors but two are minor, hence one
portion for them, hence, Rs.6,000 x 12 x 16
(multiplier) as per judgment of Apex Court
in Sarla Verma Vs. Delhi Transport
Corporation, (2009) 6 SCC 12 which
would be 11,52,000+ 70,000=12,22,000/-.
The medical expenses of Rs.50,000/- would
also be admissible out of this 50% be
deducted towards contributory negligence .

23. The claimants have proved by the
cogent evidence laid before the tribunal
that for the treatment of the deceased they
have spent not less than Rs.50,000/-, hence,
this court feels that they would be entitled
to get the said amount also.

24. 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
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." .

25. The appeal is partly allowed in
favour of claimants.

26. The record and proceedings be
sent to the Tribunal forth with.

27. The Insurance Company shall
deposit the amount as computable with
interest
i.e.
Rs.6,11,000+50,000=
7 All. Ansar Ahmad Vs. Sri Chandra Kesharwani & Anr.
63
Rs.6,61,000/- at the rate of 7.5% as
expeditiously as possible not later than
31.12.2020
----------
(2020)07ILR A63
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE

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

First Appeal From Order No. 968 of 2010

Ansar Ahmad ...Appellant
Versus
Sri Chandra Kesharwani & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Abhineet Kumar Jaiswal, Sri Prabha
Shanker
Bharti,
Sri
Pranav
Kumar
Srivastava

Counsel for the Respondents:
Archana Singh

A.