# Smt. Vimla Devi & Ors v. United India Insurance Co. Ltd. & Ors

- **Citation:** (2022) 4 ILRA 1050
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-25
- **Case number:** First Appeal From Order No. 3659 of 2018
- **Bench:** Dr. Kaushlendra Jayendra Thaker, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vimla-devi-ors-v-united-india-insurance-co-ltd-ors-48366
- **Pages:** 13

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168, 173, 147 & 149--
Compensation--Determination of--Deceased &
ors. were returning home from Lucknow in a
car--Driver of car noticed that the vehicle
coming from opposite side can collide with the
car moved to his left when the car collided with
the railing of the road side culvert--All the
occupants
sustained
injuries--Deceased
succumbed to his injuries during treatment at
District Hospital--Claimants legal heirs of the
deceased filed claim petition--Tribunal awarded
a
sum
of
`
22,98,900--For
composite/contributory negligence deceased or
person concerned should be shown to have
contributed either to the accident or the impact
of the accident could have been minimised if he
had taken due care--Plea that driver was not
negligent rejected--It is a case of composite
negligence and the owner, driver and insurer
would be liable to pay the compensation--
Taking monthly income of ` 32,000 p.m. and
adding 20% towards future loss total income
worked out at ` 38,400--After deduction of
1/4th
towards
personal
expenses,
annual
income computed' at ` 3,45,600--Applying
multiplier of 11, the loss of dependency
determined at ` 38,01,600--Further amount of `
1,20,000 granted towards non-pecuniary heads
to determine total compensation at ` 39,21,600-
-Interest allowed @ 7.5% p.a. from date of
filing of the claim--TDS to be deductible.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,953 of 44,319. This is a partial read: ask again with offset=39953 for what follows._

1050 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation even in absence of the
counsel for the claimants, this order is
passed. Recovery rights are granted to
the appellant against respondent nos. 6
& 7.

22. As the record is not before this
Court, the Tribunal shall disburse the
amount.
----------
(2022)04ILR A1050
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2022

BEFORE

THE HON'BLE DR. KAUSHLENDRA
JAYENDRA THAKER, J.
THE HON'BLE VIVEK VARMA, J.

First Appeal From Order No. 3659 of 2018
& First Appeal From Order No. 2679 of 2015

Smt. Vimla Devi & Ors. ...Appellants
Versus
United India Insurance Co. Ltd. & Ors.
 ...Opp. Parties

Counsel for the Appellants:
Sri Akhilesh Chandra Srivastava, Sri Ramesh
Chandra Pathak, Sri Aditya Singh Parihar

Counsel for the Opp. Parties:
Sri Sushil Kumar Mehrotra, Sri Girish Kumar
Srivastava, Sri Neeraj Chandra Srivastava, Sri
Snehil Srivastava

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168, 173, 147 & 149--
Compensation--Determination of--Deceased &
ors. were returning home from Lucknow in a
car--Driver of car noticed that the vehicle
coming from opposite side can collide with the
car moved to his left when the car collided with
the railing of the road side culvert--All the
occupants
sustained
injuries--Deceased
succumbed to his injuries during treatment at
District Hospital--Claimants legal heirs of the
deceased filed claim petition--Tribunal awarded
a
sum
of
`
22,98,900--For
composite/contributory negligence deceased or
person concerned should be shown to have
contributed either to the accident or the impact
of the accident could have been minimised if he
had taken due care--Plea that driver was not
negligent rejected--It is a case of composite
negligence and the owner, driver and insurer
would be liable to pay the compensation--
Taking monthly income of ` 32,000 p.m. and
adding 20% towards future loss total income
worked out at ` 38,400--After deduction of
1/4th
towards
personal
expenses,
annual
income computed' at ` 3,45,600--Applying
multiplier of 11, the loss of dependency
determined at ` 38,01,600--Further amount of `
1,20,000 granted towards non-pecuniary heads
to determine total compensation at ` 39,21,600-
-Interest allowed @ 7.5% p.a. from date of
filing of the claim--TDS to be deductible.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Vimal Kanwar & ors. Vs Kishore Dan & ors.
MANU/SC/0460/2013;

2. Sarla Verma & ors. Vs Delhi Transport
Corporation & ors. MANU/SC/0606/2009;

3.
U.P.S.R.T.C.
Vs
Mamta
&
ors.
MANU/SC/0185/2016;

4.
Singh
Ram
Vs
Nirmala
&
ors.
MANU/SC/0200/2018;

5. Shamanna & ors. Vs The Divisional Manager,
The Oriental Insurance Co. Ltd. & ors.
MANU/SC/0828/2018;

6. Ram Chandra Singh Vs Rajaram & ors.
MANU/SC/0853/2018;

7. Rylands v Fletcher MANU/UKHL/0001/1868;

8. Khenyei Vs New India Assurance Co. Ltd. &
ors. MANU/SC/0582/2015;

9.
T.O.
Anthony
Vs
Karvarnan
&
ors.
MANU/SC/7181/2008;

10. New India Assurance Co. Ltd. Vs Urmila
Shukla
&
ors.
MANU/SC/0595/2021;
4 All. Smt. Vimla Devi & Ors. Vs. United India Insurance Co. Ltd. & Ors.
1051
11. Malarvizhi & ors. Vs United India Insurance
Company Limited & ors. MANU/SC/1700/2019;

12. United India Insurance Co. Ltd. Vs Indiro
Devi & ors. MANU/SC/0678/2018;

13. Oriental Insurance Company Ltd. Vs Mangey
Ram & ors. MANU/UP/2290/2019;

14. Kirti & ors. Vs Oriental Insurance Co. Ltd.
MANU/SC/0004/2021;

15. National Insurance Company Limited Vs
Pranay Sethi & ors. MANU/SC/1366/2017;

16. National Insurance Company Ltd. Vs Mannat
Johal & ors. MANU/SC/0589/2019;

17. Hansaguri Prafulchandra Ladhani & ors. Vs
The Oriental Insurance Company Ltd. & ors.
MANU/GJ/2100/2006;

18. A.V. Padma & ors. Vs R. Venugopal & ors.
MANU/SC/0065/2012
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Vivek
Varma, J.)

1. Heard Shri Aditiya Singh Parihar,
learned counsel for the claimants and Shri
S. K. Mehrotra, learned counsel for the
Insurance Company. None appears for
owner or driver of the vehicle.

2. Both these appeals arise out of the
same award/decree. The First Appeal From
Order No. 3659 of 2018 is preferred by the
original claimants for enhancement of
compensation whereas First Appeal From
Order No. 2679 of 2015 has been filed by
the Insurance Company with which the
vehicle
was
insured
challenging
the
findings as far as fixing their liability,
compensation granted and on ground of
contributory negligence of deceased.

3. Brief facts as culled out from the
record
are
that
in
the
night
of
29/30.05.2011 Haridas Gautam, Vijay
Gautam and Pankaj Kumar Sharma were
returning to their home from Lucknow in a
Maruti WagonR car bearing registration no.
U.P-51/N-6061 which according to the
petitioner was driven by respondent no. 3-
Shiv Shankar @ Pappu. On 30.05.2011 at
4:00 a.m when they reached ahead of petrol
pump of village Rithiya on Lucknow Main
Road driver Shiv Shankar @ Pappu was
driving the car rashly and negligently when
he saw a vehicle coming from opposite side
and with presumption that his car can
collide with the coming vehicle he moved
his car to very left of his side due to which
the car collided with the railing of the road
side culvert as a result of which Haridas
Gautam and Vijay Gautam sustained
several injuries on the other hand Pankaj
Kumar Sharma and driver Shiv Shankar @
Pappu sustained minor injuries. Haridas
Gautam and Vijay Gautam were taken to
the District Hospital for treatment where
Haridas Gautam succumbed to his injuries
and Vijay Gautam was treated for his
injuries.

4. It is an admitted fact that the
claimants are legal representative of the
deceased. The deceased was 53 years of
age at the time of accident. He was
working as a Chief Pharmacist in District
Women Hospital, Basti. He was survived
by his wife, two minor sons and two major
daughters. The Tribunal considered his
income to be Rs. 26,900/-p.a, deducted
1/4th towards personal expenses of the
deceased, granted multiplier of 9 and
granted
Rs.1,00,000/-
towards
compensation for loss of consortium,
granted Rs. 10,000/- towards for loss of
estate, granted Rs. 10,000/- towards
funeral expenses and ultimately assessed
the
total
compensation
to
be
Rs.
22,98,900/-.
1052 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Shri Aditya Singh Parihar, learned
counsel for the claimants-appellants has
submitted that the tribunal has deducted 20%
by way of income tax and other emoluments
which is not in consonance with the judgment
of Vimal Kanwar and Others Versus
Kishore Dan and others ( 2013) 7 SCC
476. Learned counsel has submitted that
tribunal has granted multiplier of 9 in-place
of 11 which is required to be granted as per
the judgement of Sarla Verma Vs. D.T.C,
AIR 2009 SC 3104. It is submitted that no
amount under loss of future prospect is
granted relying on decision of Sarla Verma
(supra) as deceased was above 50 years of
age.

6. As both the appeals raise different
issues we will be obliged to decide all the
issues raised in both the appeals as per the
judgment of the Apex Court in the case of
U.P.S.R.T.C Vs. Km. Mamta and Others,
AIR 2016 SC 948. The issues which are
raised by the Insurance Company are
enumerated as follows:-

(a) The award and decree is bad as it
was Vijay Gautam who was driving the
vehicle and not Shiv Shankar @ Pappu;

(b) That there is a delay of about 26
months in lodging the F.I.R. and about two
and half years delay in filing the claim
petition;

(c) That there is no finding to the fact
that accident in question occurred due to rash
and negligent driving of the driver of Maruti
Car and who is liable to pay the claimants;

(d) That the compensation awarded
towards consortium and other heads is on the
higher side;

(e) The claimants have also challenge
quantum of compensation.

Issue (a) and (c) As far as the facts go
it is an admitted position that the driver was
one Shiv Shankar @ Pappu to whom the
owner had entrusted the vehicle but from
the evidence on record it is proved that the
charge sheet was laid against Vijay Gautam
who was also injured in the accident. The
oral testimony of the driver D.W.-1- Shiv
Shanker also corroborates this fact, in that
view of the matter the finding of fact that
the vehicle was been driven by Shiv
Shankar @ Pappu could not be permitted to
stand. Infact the said finding is contrary to
the statement and testimony of the driver of
the vehicle that he was not driving the
vehicle at the time when the accident took
place could not be disbelived just because
he was a licensed driver. The fact Shiv
Shankar @ Pappu was in the vehicle only
would not make him liable as driving the
vehicle in absence of any other evidence
being led. In that view of the matter we
hold that the vehicle was being driven by
the
Vijay
Gautam.
The
factum
of
knowledge that vehicle was driven by
Vijay Gautam and not by Shiv Shankar @
Pappu and to take benefit of this fact, we
would have to peruse Section 147 and
Section 149 of the Motor Vehicle Act,
1988. Section 147 read with Section 149 of
Motor Vehicle Act, 1988 read as follows:-

147. Requirements of policies and
limits of liability. --

(1) In order to comply with the
requirements of this Chapter, a policy of
insurance must be a policy which--

(a) is issued by a person who is an
authorised insurer; and

(b) insures the person or classes of
persons specified in the policy to the extent
specified in sub-section (2)--

(i) against any liability which may be
incurred by him in respect of the death of
or
bodily27 [injury
to
any
person,
including owner of the goods or his
authorised representative carried in the
4 All. Smt. Vimla Devi & Ors. Vs. United India Insurance Co. Ltd. & Ors.
1053
vehicle] or damage to any property of a
third party caused by or arising out of the
use of the vehicle in a public place;

(ii) against the death of or bodily
injury to any passenger of a public service
vehicle caused by or arising out of the use
of the vehicle in a public place:

Provided that a policy shall not be
required--

(i) to cover liability in respect of the
death, arising out of and in the course of
his employment, of the employee of a
person insured by the policy or in respect
of bodily injury sustained by such an
employee arising out of and in the course
of his employment other than a liability
arising
under
the
Workmen's
Compensation Act, 1923 (8 of 1923) in
respect of the death of, or bodily injury to,
any such employee--

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle
engaged as conductor of the vehicle or in
examining tickets on the vehicle, or

(c) if it is a goods carriage, being
carried in the vehicle, or

(ii) to cover any contractual liability.

Explanation. --For the removal of
doubts, it is hereby declared that the death
of or bodily injury to any person or damage
to any property of a third party shall be
deemed to have been caused by or to have
arisen out of, the use of a vehicle in a
public place notwithstanding that the
person who is dead or injured or the
property which is damaged was not in a
public place at the time of the accident, if
the act or omission which led to the
accident occurred in a public place.

(2) Subject to the proviso to subsection (1), a policy of insurance referred
to in sub-section (1), shall cover any
liability incurred in respect of any accident,
up to the following limits, namely:--

(a) save as provided in clause (b), the
amount of liability incurred;

(b) in respect of damage to any
property of a third party, a limit of rupees
six thousand:

Provided that any policy of insurance
issued with any limited liability and in
force,
immediately
before
the
commencement of this Act, shall continue
to be effective for a period of four months
after such commencement or till the date of
expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for
the purposes of this Chapter unless and
until there is issued by the insurer in favour
of the person by whom the policy is effected
a certificate of insurance in the prescribed
form
and
containing
the
prescribed
particulars of any condition subject to
which the policy is issued and of any other
prescribed matters; and different forms,
particulars and matters may be prescribed
in different cases.

(4) Where a cover note issued by the
insurer under the provisions of this
Chapter or the rules made thereunder is
not followed by a policy of insurance within
the prescribed time, the insurer shall,
within seven days of the expiry of the
period of the validity of the cover note,
notify the fact to the registering authority in
whose records the vehicle to which the
cover note relates has been registered or to
such
other
authority
as
the
State
Government may prescribe.

(5) Notwithstanding
anything
contained in any law for the time being in
force, an insurer issuing a policy of
insurance under this section shall be liable
to indemnify the person or classes of
persons specified in the policy in respect of
any liability which the policy purports to
cover in the case of that person or those
classes of persons.
1054 INDIAN LAW REPORTS ALLAHABAD SERIES

149. Duty of insurers to satisfy
judgments and awards against persons
insured in respect of third party risks.--

(1) If, after a certificate of insurance
has been issued under sub-section (3) of
section 147 in favour of the person by
whom a policy has been effected, judgment
or award in respect of any such liability as
is required to be covered by a policy under
clause (b) of sub-section (l) of section 147
(being a liability covered by the terms of
the policy) 1[or under the provisions of
section 163A] is obtained against any
person insured by the policy, then,
notwithstanding that the insurer may be
entitled to avoid or cancel or may have
avoided or cancelled the policy, the insurer
shall, subject to the provisions of this
section, pay to the person entitled to the
benefit of the decree any sum not exceeding
the sum assured payable thereunder, as if
he were the judgment debtor, in respect of
the liability, together with any amount
payable in respect of costs and any sum
payable in respect of interest on that sum
by virtue of any enactment relating to
interest on judgments.

(2) No sum shall be payable by an
insurer under sub-section (1) in respect of
any judgment or award unless, before the
commencement of the proceedings in which
the judgment or award is given the insurer
had notice through the Court or, as the
case may be, the Claims Tribunal of the
bringing of the proceedings, or in respect
of such judgment or award so long as
execution is stayed thereon pending an
appeal; and an insurer to whom notice of
the bringing of any such proceedings is so
given shall be entitled to be made a party
thereto and to defend the action on any of
the following grounds, namely:--

(a) that there has been a breach of a
specified condition of the policy, being one
of the following conditions, namely:--

(i) a condition excluding the use of the
vehicle--

(a) for hire or reward, where the
vehicle is on the date of the contract of
insurance a vehicle not covered by a permit
to ply for hire or reward, or

(b) for organised racing and
speed testing, or

(c) for a purpose not allowed by
the permit under which the vehicle is used,
where the vehicle is a transport vehicle, or

(d) without
side-car
being
attached where the vehicle is a motor
cycle; or

(ii) a condition excluding driving by a
named person or persons or by any person
who is not duly licensed, or by any person
who has been disqualified for holding or
obtaining a driving licence during the
period of disqualification; or

(iii) a condition excluding liability for
injury
caused or
contributed
to
by
conditions of war, civil war, riot or civil
commotion; or

(b) that the policy is void on the
ground that it was obtained by the non-
disclosure of a material fact or by a
representation of fact which was false in
some material particular.

(3) Where any such judgment as is
referred to in sub-section (1) is obtained
from a Court in a reciprocating country
and in the case of a foreign judgment is, by
virtue of the provisions of section 13 of the
Code of Civil Procedure, 1908 (5 of 1908)
conclusive as to any matter adjudicated
upon by it, the insurer (being an insurer
registered under the Insurance Act, 1938 (4
of 1938) and whether or not he is
registered under the corresponding law of
the reciprocating country) shall be liable to
the person entitled to the benefit of the
decree in the manner and to the extent
specified in sub-section (1), as if the
judgment were given by a Court in India:
4 All. Smt. Vimla Devi & Ors. Vs. United India Insurance Co. Ltd. & Ors.
1055
Provided that no sum shall be payable by
the insurer in respect of any such judgment
unless, before the commencement of the
proceedings in which the judgment is given,
the insurer had notice through the Court
concerned
of
the
bringing
of
the
proceedings and the insurer to whom
notice is so given is entitled under the
corresponding law of the reciprocating
country, to be made a party to the
proceedings and to defend the action on
grounds similar to those specified in subsection (2).

(4) Where a certificate of insurance
has been issued under sub-section (3) of
section 147 to the person by whom a policy
has been effected, so much of the policy as
purports to restrict the insurance of the
persons insured thereby by reference to any
condition other than those in clause (b) of
sub-section (2) shall, as respects such
liabilities as are required to be covered by
a policy under clause (b) of sub-section (1)
of section 147, be of no effect: Provided
that any sum paid by the insurer in or
towards the discharge of any liability of
any person which is covered by the policy
by virtue only of this sub-section shall be
recoverable by the insurer from that
person.

(5) If the amount which an insurer
becomes liable under this section to pay in
respect of a liability incurred by a person
insured by a policy exceeds the amount for
which the insurer would apart from the
provisions of this section be liable under
the policy in respect of that liability, the
insurer shall be entitled to recover the
excess from that person.

(6) In this section the expression
"material fact" and "material particular"
means, respectively a fact or particular of
such a nature as to influence the judgment
of a prudent insurer in determining
whether he will take the risk and, if so, at
what premium and on what conditions, and
the expression "liability covered by the
terms of the policy" means a liability which
is covered by the policy or which would be
so covered but for the fact that the insurer
is entitled to avoid or cancel or has
avoided or cancelled the policy.

(7) No insurer to whom the notice
referred to in sub-section (2) or sub-section
(3) has been given shall be entitled to avoid
his liability to any person entitled to the
benefit of any such judgment or award as is
referred to in sub-section (1) or in such
judgment as is referred to in sub-section (3)
otherwise than in the manner provided for
in sub-section (2) or in the corresponding
law of the reciprocating country, as the
case
may
be.
Explanation.--For
the
purposes of this section, "Claims Tribunal"
means a Claims Tribunal constituted under
section 165 and "award" means an award
made by that Tribunal under section 168.

In view of the provisions 147 and 149
of the M.V. Act, the insurance company
has not proved that the owner has entrusted
the vehicle to Vijay Gautam or the owner
was aware that Vijay Gautam would drive
the vehicle. It is evident from the factual
data that owner had entrusted the vehicle to
a person who was qualified to drive the
vehicle. It is not known whether she was
put to question regarding the vehicle being
driven by Shri Gautam. The fact that the
O.D claim was granted for which Shri
Aditiya Singh Parihar has relied on the
following two decisions: F.A.F.O No. 404
of 2013 and F.A.F.O No. 410 of 2013
decided by Division Bench of this Court on
06.02.2013, so as to contend that recovery
rights could not be granted and in
alternative it is submitted that even if it has
to be granted on ground that there was
breach of policy condition which caused
accident with a rider that the appellant
insurance company shall prove as held by
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
the Apex Court in Singh Ram Vs.
Nirmala and others, AIR 2018 SC 1290
that the owner was aware that the vehicle
was drived by Vijay Gautam as it is not
proved by the insurance company that
Vijay Gautam had no license to drive the
vehicle and therefore having not proved
that Vijay Gautam did not have any driving
license, this Court in view of the judgment
of the Apex Court grants recovery rights
but with this rider that it will be incumbent
of the insurance company to prove that
Vijay Gautam who was driving the vehicle
had no license to drive the said vehicle and
over and above that vehicle owner was
aware that Vijay Gautam was driving the
said vehicle with her explicit permission. It
is not the case of the insurance company
that the driver had no valid license, the
owner and P.W.-1 have deposed that the
vehicle was driven by Shiv Shankar @
Pappu who had a valid driving license.
Even in case where it has been found that
the driving license was fake the Courts in
Singh Ram (Supra) have directed the
insurance
company
to
pay
the
compensation and recover from the owner
cum driver. In our case the owner is on a
much better ground. In the case of
Shamanna and another Vs. Divisional
Manager, Oriental Insurance Company
Ltd. and others, AIR 2018 SC 3736, the
driver who was not possessing a valid
driving license the insurer was held liable
to pay compensation and recover the same
from the owner. Our case is covered by
judgment of Ram Chandra Singh Vs.
Rajaram and others, AIR 2018 SC 3789
and therefore in this matter when the
execution is filed, the question of liability
of the owner to repay the Insurance
Company will have to be examined by the
tribunal.

Issue (b) The finding not being
perverse is not disturbed as there is no
period for filing claim petition and the
claimants being in shock F.I.R. was filed
belatedly.

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.

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.

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
4 All. Smt. Vimla Devi & Ors. Vs. United India Insurance Co. Ltd. & Ors.
1057
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. Clause6 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.

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

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
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
4 All. Smt. Vimla Devi & Ors. Vs. United India Insurance Co. Ltd. & Ors.
1059
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
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

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
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
contributed either to the accident and the
impact of accident upon the victim could
have been minimized if he had taken care.
In this case the deceased was not the author
or the co-author of the accident. Hence, the
ground that driver was not negligent is
rejected.

As far as the question of negligence of
deceased is concerned, it is case of
composite negligence and therefore the
driver, the owner and the insurance
company
would
be
liable
to
pay
compensation as the deceased was not the
author of the accident with recovery rights
given to insurance company.

Issue
(d)
Compensation
to
be
awarded and as raised by claimants that
compensation granted is inadequate and
requires enhancement.

The deceased was Chief Pharmacist
which is an admitted position of fact, his
income has been considered Rs. 26,900/-
p.m by the tribunal. The tribunal has not
added any amount on the head of future
loss of income by assigning reasons. On the
basis of judgement of Sarla Verma Vs.
D.T.C, AIR 2009 SC 3104 was considered
by the tribunal. Shri Aditiya Singh Parihar,
learned counsel appearing for the claimants
contended
that
tribunal
has
granted
multiplier of 9 in-place of 11 which is
required to be granted as per the judgement
of Sarla Verma (supra).

While going through the record, it is
clear that the income of the deceased was
Rs. 34,000/- p.m and from the salary slip it
is clear that Rs. 6000/- p.a was to be
deducted as income tax. The slab in the
year 2011 was not 20% for a person
earning less than Rs. 5 lacs per annum as
other tax deduction would also have been
claimed by the deceased.

The
tribunal
in
our
view
has
committed a error in granting multiplier of
9 despite the fact that it has relied on the
judgement of Sarla Verma (supra) and
has reproduce the tabulation. The age of the
deceased was in the age bracket of 51-55
years, the tribunal took the view and come
to the conclusion that as per the judgment
of Sarla Verma (supra) no amount be
added to the income where the person is
above 50 years. In our case we would fall
back on the rules and the recent judgment
of the Apex Court in National India
Assurance Co. Ltd. Vs. Urmila Shukla,
2021 ACJ 2081, to add future loss of
income. The tribunal even considered the
salary certificate of the deceased where the
income mentioned to be was Rs. 34,086/-
p.m., the tribunal deducted house rent
allowance and deducted 20% by way of
income tax which according to counsel for
the appellants was not in consonance with
the judgment of Vimal Kanwar and
Others Versus Kishore Dan and others (
2013) 7 SCC 476. We in principle agree
with the learned counsel for claimants as
even in the salary certificate only Rs. 500/-
p.m has been deducted towards tax at
source. The deduction could be Rs. 6000/-
p.a and some amount can be deducted as
per decision titled Vimal Kanwar and
Others Versus Kishore Dan and others (
2013) 7 SCC 476. Learned counsel for
claimants has heavily relied on the
judgments decided by Division Bench of
this Court on 06.02.2013 in F.A.F.O No.
404 of 2013 and F.A.F.O No. 410 of 2013
and contended that deceased was a third
party covered by the policy and therefore,
whether recovery rights are granted or not
would make no difference to him as the
Insurance Company would be liable to the
third party.

This takes this Court to the quantum
of compensation grantable to claimants.
The Apex court decision in Malarvizhi &
Ors
Vs.
United
India
Insurance
4 All. Smt. Vimla Devi & Ors. Vs. United India Insurance Co. Ltd. & Ors.
1061
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 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 1. will enure for
the benefit of the claimants.

7. It could not be culled out from
record that on what basis, the Tribunal has
deducted certain pecuniary benefits from
the income of deceased. The income of the
deceased in the year of accident and
looking to his job has to be considered to
be Rs. 32,000/- per month as the deceased
was in the age bracket of 51-55 years, 20%
as future loss of income requires to be
added in view of U.P. M.V rules and
decision in Urmila Shukla (Supra) as the
deceased was survived by his wife, two
minor sons and two major daughters who
were unmarried 1/4th could have been the
expenses borne on himself. The claimants
would be entitled to multiplier of 11 and
not 9 as per the judgment of National
Insurance Company Ltd. Vs. Pranya
Sethi 2017 (13) SCALE. Rs. 1,20,000/-
granted for non pecuniary damages is not
disturbed.

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

i. Income Rs 32,000/-p.m

ii.