# The New India Assurance Company Ltd v. Smt. Rinku Devi & Ors

- **Citation:** (2021) 3 ILRA 292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-18
- **Case number:** FAFO No. 2061 of 2016
- **Bench:** Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-company-ltd-v-smt-rinku-devi-ors-46937
- **Pages:** 4

## Text

292 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The learned Registrar General is
requested to circulate this judgment to the
Tribunals for future guidance on question of
multiplier and future income loss.

21. We are thankful to Shri Rahul Sahai
assisted by Shri Parihar, Ajay Singh and
Nigamendra Shukla for getting this matter
disposed of expeditiously.

Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J.
&
Hon'ble Ajit Singh, J.

(Ref: Civil Misc. Delay Condonation
Application)

1. Heard learned counsel for the parties.

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

3. Cause shown for the delay is
sufficient, hence, the delay is condoned.

4. This application, accordingly stands
allowed.
----------
(2021)03ILR A292
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2021

BEFORE

THE HON'BLE VIVEK AGARWAL, J.

FAFO No. 2061 of 2016

The New India Assurance Company Ltd.
 ...Appellant
Versus
Smt. Rinku Devi & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Rakesh Bahadur

Counsel for the Opposite Parties:
Sri Yashwant Pratap Singh, Sri Awadhesh
Kumar Malviya, Sri Vashishtha Tiwari

Plea of contributory negligence not made
out-inspection report was not examinedneither it is an admissible document u/r
211-A of Rules, 1998-Appeal dismissed.
(E-7)

Cases cited:

1. Machindranath Kernath Kasar Vs D.S.
Mylarappa & ors.; (2008) 13 SCC 198

2.ICICI Lombard General Insurance Co. Ltd. Vs
Smt. Reena Tyagi & ors. (FAFO No. 2190 of
2010)

3.Kusum Lata & ors. Vs Satbir & ors.; 2011 (2)
TAC 4 (SC)

4. Saroj & ors. Vs Hethlal & ors.; 2011 (1) TAC
271 (SC)

5.United Provinces Vs Mt. Atiqa Begum, AIR
1941 FC 16
6.
Garikapatti
Veeraya
Vs
N.
Subbiah
Choudhury; AIR 1957 SC 540

(Delivered by Hon'ble Vivek Agarwal, J.)

1. Heard Sri Rakesh Bahadur, learned
counsel for appellant-insurance company,
Sri Yashwant Pratap Singh, learned counsel
for claimant-respondent no. 1 and Sri
Awadhesh Kumar Malviya, learned counsel
for respondent no. 6.

2. This appeal has been filed by the
insurance company being aggrieved of
award dated 05.03.2016 passed by learned
Motor Accident Claims Tribunal/District
Judge, Deoria in MACP No. 374 of 2011,
on the ground that driver of the offending
vehicle was not impleaded as a party and
further
that
aspect
of
contributory
3 All. The New India Assurance Company Ltd. Vs. Smt. Rinku Devi & Ors.
293
negligence has not been considered by the
learned claims tribunal, inasmuch as in the
light of the inspection report, available on
record, there was dent on the right hand
side rear bumper of the vehicle bearing
registration no. UP 61 T 0065 and
therefore, motorcycle, on which deceased
was travelling, had hit the truck from
behind and on such premise, it is submitted
that finding of contributory negligence
should have been recorded by the learned
claims tribunal.

3. Placing reliance on the provisions
contained in Rule 204(7) of the U.P. Motor
Vehicle Rules, 1998, it is submitted that
Rules provide for impleadment of the
driver of the vehicle involved in the
accident to be necessarily a party in the
application for compensation filed under
Section 166 of the Act. Reliance is placed
on the judgment of Hon'ble Supreme Court
in case of Machindranath Kernath Kasar
vs. D.S. Mylarappa and Others; (2008) 13
SCC 198, referring to Para-42, it is
submitted that "Wrongdoers are deemed to
be joint tortfeasors, within the meaning of
the rule, where the cause of action against
each of them in the same, namely that the
same evidence would support an action
against them, individually Accordingly,
they will be jointly liable for a tort which
they both commit or for which they are
responsible because the law imputes the
commission of the same wrongful act to two
or more persons at the same time. This
occurs in cases of (a) agency; (b) vicarious
liability; and (c) where a tort is committed
in the course of a joint act, whilst pursuing
a common purpose agreed between them."

Hence, employer and employee,
the former being vicariously liable while
the latter being primarily liable are joint
tortfeasors and are therefore jointly and
severally liable. However, by virtue of the
fact that the cause of action is the same and
that the same evidence would support an
action against either, it follows that this
evidence must necessarily include an
examination of the driver who is primarily
liable. To make a finding on negligence
without involving the driver as at least a
witness would vitiate the proceedings not
only on the basis of the fact that the driver
has not been given an opportunity to make
a representation, but also because the
evidence to make a finding regarding
negligence
would
necessarily
be
inadequate."

4. Learned counsel for claimants, on
the other hand, submits that as far as Rule
204 sub-rule (7) is concerned, that became
effective from 26th September, 2011,
whereas in the present case, accident had
taken place on 04.07.2011, therefore, these
Rules will not have any retrospective
effect. Further, it is submitted that plea of
contributory negligence is not made out,
just due to the fact that an inspection report
was produced, in which there is mention of
damage to the rear bumper of the truck,
inasmuch as author of the report was not
examined. It is also submitted that nonimpleadment of the driver will not be fatal
to the case of the claimants, especially,
when no such issue was framed before the
learned claims tribunal and therefore, now
at this stage, for the first time, raising a plea
of this nature is not maintainable.

5. After hearing learned counsel for
the parties and going through the record,
plea of contributory negligence is not made
out merely on the strength of inspection
report on two grounds firstly, author of the
inspection report was not examined before
the court of law and secondly, it is not one
of the documents admissible in evidence, as
294 INDIAN LAW REPORTS ALLAHABAD SERIES
per the provisions contained in Rule 211-A
of the Rules of 1998 because there is no
mention of inspection of vehicle involved
in an accident under either Rules 203-A,
203-C and 203-D, in regard to which,
presumption can be drawn. In fact,
provision of inspection of vehicle involved
in an accident is provided under Rule 203,
however,
it
is
not
subject
to
the
presumption, which can be drawn under
Rule 211-A. Insurance company had also
not examined any independent witness to
deny the evidence of PW3 in regard to
truck hitting the deceased, sitting on the
motorcycle
coming
from
opposite
direction.

6. As far as impleadment of driver is
concerned, it has come on record that this
plea was not taken by the insurance
company
before
the
learned
claims
tribunal. It has also come on record that
owner of the offending vehicle did not
appear before the tribunal despite service of
notice and therefore, he was proceeded exparte, as is mentioned in Para-3 of the
impugned award. No such issue was
framed at the instance of the insurance
company in absence of any such defense
taken by the insurance company before the
learned tribunal.

7. Claimants had produced documents
like release order of the vehicle, copy of
bail application filed by the driver, his
driving license, insurance policy, permit,
fitness, pollution control report, etc. before
the learned tribunal. Insurance company
had filed copy of investigation report, in
which they have not disputed the factum of
accident taking place in the manner in
which it was narrated to had taken place as
per PW2-eye-witness. It has also come on
record that PW3 had proved negligence of
the driver of the offending truck and this
could not be rebutted by the insurance
company either confronting him with
investigation report or any other document
to prove that accident had taken place due
to the negligence of the driver of the
motorcycle.

8. As far as judgment in case of
Machindranath Kernath Kasar (supra) is
concerned, Hon'ble Supreme Court was
dealing with the provisions contained in
Rule 235 of Karnataka Motor Vehicles
Rules, 1989, requiring the tribunal to send
notice to the driver or owner and in that
context, it held that in an application for
compensation,
the
driver
should
be
impleaded as a party although, he may not
be a necessary party, as his nonimpleadment would not vitiate the entire
proceedings. In the present case, provisions
similar to Rule 235 of Karnataka Motor
Vehicles Rules, 1989, came into effect
when sub-rule (7) of Rule 204 of U.P.
Motor Vehicles Rules, 1998 was brought
into effect vide Notification No. 777/XXX4-2011-4(3)-2010, dated 26th September,
2011.

9. In case of ICICI Lombard General
Insurance Co. Ltd. vs. Smt. Reena Tyagi
and Others (FAFO No. 2190 of 2010), vide
order dated 27.03.2017, Division Bench of
this Court has discussed the law laid down
in case of Kusum Lata and Others vs.
Satbir and Others; 2011 (2) TAC 4 (SC),
wherein it is held that for the purposes of
claiming compensation under Section 166
of the Motor Vehicles Act, it is not
necessary to mention the registration of the
offending vehicle or even the name of the
driver. Similarly, reference is also given of
the judgment of Supreme Court in case of
Saroj and Others vs. Hethlal and Others;
2011 (1) TAC 271 (SC), wherein the Apex
Court has held that where the owner of the
3 All. Krishnakant Pandey (corpus) & Ors. Vs. State of U.P. & Ors.
295
vehicle admits the accident, in such cases,
no
further
enquiry
regarding
the
involvement of the vehicle is necessary.
Thus, it is clear that when owner of the
vehicle remained ex-parte, despite service
of notice, then as per the law of pleading,
there is deemed admission on the part of
the owner of the vehicle admitting the
factum of the accident, coupled with the
fact that PW3 has not only proved the
factum of accident, but also fact of
negligence of the driver of the offending
truck.

10. As far as issue of retrospective
operation of the amendment in Rule 204(7) is
concerned, law is clear in this regard and it
provides that courts would undoubtedly rely
very strongly against applying a new Act to a
pending action, when language of the statute
does not compel them to do so. (United
Provinces vs. Mt. Atiqa Begum), AIR 1941
FC 16. In case of Garikapatti Veeraya vs. N.
Subbiah Choudhury; AIR 1957 SC 540,
P.553 (Para-25), it has been held that the
golden rule of construction is that, in absence
of anything in the enactment to show that it is
to have retrospective operation, it cannot be
so construed as to have the effect of altering
the law applicable to a claim in litigation at
the time when the Act was passed. In view of
such settled principle of law, it is apparent
that amendment in U.P. Motor Vehicle Rules
making it mandatory to implead the driver of
the vehicle involved in the accident shall not
be retrospective in operation, but only
beneficial provision can have retrospective
application, as has been applied by Hon'ble
Division Bench of this Court in case of ICICI
Lombard General Insurance Co. Ltd. vs.
Smt. Reena Tyagi and Others (supra).

11.

Thus,
this
plea
of
nonimpleadment of driver having adverse
impact on the case of the claimants will not
be applicable to the present facts and
circumstances of the case, therefore,
insurance
company
having
failed
to
substantiate both the grounds namely that
of
contributory
negligence
and
retrospective application of the amended
Rules, appeal fails and is dismissed.
----------
(2021)03ILR A295
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 174 of 2021

Krishnakant Pandey (corpus) & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Kuldeep Singh, Sri Vipin Vinod

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498A, 323, 504, 506, 392 -
Domestic Violence Act - Section 12 - Code
of criminal procedure, 1973 - Section 125
- Dowry prohibition Act,1961 - Sections
3/4 - Hindu Marriage Act - Section 9 - Writ
of Habeas Corpus -custody of minor
children - an application seeking a writ of
habeas corpus for custody of minor
children - principal consideration for the
court would be to ascertain - whether the
custody of the children can be said to be
unlawful and illegal - whether their
welfare requires that the present custody
should be changed and the children
should be handed over in the care and
custody of somebody else other than in
whose custody they presently are. (Para -
13)