# The Oriental Insurance Comp. Ltd v. Smt. Gitanjali Sharma & Ors

- **Citation:** (2021) 10 ILRA 295
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-12
- **Case number:** FAFO No. 3288 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-comp-ltd-v-smt-gitanjali-sharma-ors-46279
- **Pages:** 16

## Headnote

(A) Motor Vehicle Act, 1988 : Section
2(16), (17), (47) - "goods vehicle", "heavy
goods vehicle" or "public service vehicle"
can be commonly called as "transport
vehicle". (Para 17)

The Court opined that the distinction is of
nature of use of the vehicle which makes no
difference as the driver of the offending vehicle
having a driving license of heavy passenger
vehicle was driving a heavy goods vehicle and
same falls within the definition of transport
vehicle; consequently the driver of the offending
vehicle was having a valid and effective driving
license at the time of accident and Insurance
Company-appellant
cannot
avoid
from
its
liability to pay compensation. (Para 23)

Appeals are Partly Allowed. (E-10)

List of Cases cited:

## Text

_Characters 0–39,968 of 52,000. This is a partial read: ask again with offset=39968 for what follows._

10 All. The Oriental Insurance Comp. Ltd. Vs. Smt. Gitanjali Sharma & Ors.
295
the date of filing of the claim petition till
the amount is deposited. The amount
already deposited be deducted from the
amount to be deposited.

21. On depositing the amount in the
Registry of Tribunal is directed to first
deduct the amount of deficit court fees, if
any. Considering the ratio laid down by the
Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of
investment be made or not made as
applicant is aged lady of 70 years.

22. Record and proceedings be sent to
the Tribunal.

23. We are thankful to both the
counsels for getting the old matter disposed
of.
----------
(2021)10ILR A295
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 12.08.2021

BEFORE

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

FAFO No. 3288 of 2007
and
FAFO NO, 3442 of 2007

The Oriental Insurance Comp. Ltd.
 ...Appellant
Versus
Smt. Gitanjali Sharma & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Arvind Kumar

Counsel for the Respondents:
Sri Ram Singh, Sri Amit Kumar Sinha,
Deepali Srivastava Sinha

(A) Motor Vehicle Act, 1988 : Section
2(16), (17), (47) - "goods vehicle", "heavy
goods vehicle" or "public service vehicle"
can be commonly called as "transport
vehicle". (Para 17)

The Court opined that the distinction is of
nature of use of the vehicle which makes no
difference as the driver of the offending vehicle
having a driving license of heavy passenger
vehicle was driving a heavy goods vehicle and
same falls within the definition of transport
vehicle; consequently the driver of the offending
vehicle was having a valid and effective driving
license at the time of accident and Insurance
Company-appellant
cannot
avoid
from
its
liability to pay compensation. (Para 23)

Appeals are Partly Allowed. (E-10)

List of Cases cited:

1. National Insurance Co. Ltd. Vs Swaran Singh
& ors. 2004 (3) SCC 297

2. Oriental Insurance Co. Ltd. Vs Shiv Narain
Sahani & ors. 2007 ACJ 1640

3. Mukund Dewangan Vs Oriental Insurance Co.
Ltd. & anr. (2016) 4 SC 298

4. Kusumlata Vs Lalaram & ors. 2003 ACJ 1966

5. National Insurance Co. Ltd. Vs Smt.
Anurandha Kejriwal & 4 ors. First Appeal From
Order No. 2103 of 2017

6. Nirmala Kothari Vs United India Insurance Co.
Ltd. (2020) 4 SCC 49

7. Oriental Insurance Co. Ltd. Vs Poonam
Kesarwani & ors. 2008 LawSuit (All) 1557

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

9. New India Insurance Co. Ltd. Vs Smt.
Kalpana & ors. 2007 TAC 795
296 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Asha & ors. Vs United India Insurance Co.
Ltd. 2004 ACJ 448

11. Vimla Kanwar & ors. Vs Kishor Dan & ors.
(2013) 7 SCC 476

12. Helen C. Rebello Vs Maharashtra SRTC 3
(1999) 1 SCC 90

13. Malarivizhi
&
ors. Vs United
India
Insurance Co. Ltd. & anr. 2020 (4) SCC 228
(followed)

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

15.
Manasvi
Jain
Vs
Delhi
Transport
Corporation
&
ors.
(2014)
13
SCC
22
(followed)

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

17. New India Assurance Co. Vs Urmila Shukla
MANU/SCOR/24098/2021

18. Kriti & ors. Vs Orientall Insurance Co. Ltd.
2021 (1) TAC 1

19.
General
Manager,
Kerala
S.RT.C.,
Trivandrum Vs Susamma Thomas & ors. (1994)
2 SCC 176 (followed)

20. U.P.S.R.T.C. & prs. Vs Trilok Chandra &
ors. (1996) 4 SCC 362 (followed)

21. Sarla Dixit Vs Balwant Yadav AIR 1996SC
1274 (followed)

22. Hardeo Kaur Vs Rajasthan State Transport
Corp 1992 2 SCC 567 (followed)

23. Puttamma Vs K.L. Narayana Reddy AIR
2014 SC 706 (followed)

24. Raman Vs Uttar Haryana Bijli Vitran Nigam
Limited (followed)

25. Bijoy kumar Dugar Vs Bidyadhar Dutta
2006 (3) SCC 242 (followed)

26. R.K. Malik Vs Kiran Pal AIR 2009 SC 2506
(followed)
27. National Insurance Co. Ltd. Vs Pranay Sethi
AIR 2017 SC 5157 (followed)

28. Raj Rani Vs Oriental Co. Ltd. 2009 (13) SCC
654(followed)

29. Ritaben alias Vanitaben Wd/o Dipakbhai
Hariram & anr. Vs Ahmedabad Municipal
Transport Service & Anr. 1998 (2) G.L.H. 670
(followed)

30. A.V. PAdma Vs Venugopal 2012 (1) GLH
(SC) 442 (followed)

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

1. These appeals arise out of same
accident and hence decided by this
common judgment .

2. F.A.F.O. No. 3288 of 2007 is
preferred at the instance of Oriental
Insurance Company. The F.A.F.O. No.
3442 of 2007 is preferred at the instance of
claimants, who are dissatisfied with the
compensation awarded by the Tribunal in
impugned award dated 20.08.2007 of
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
Room No.2, Allahabad in M.A.C.P. No.
564 of 2000 (Smt. Gitanjali Sharma and
others Vs. Sant Kumar and others).

3. The brief facts as narrated in the
Claim Petition No. 564 of 2000 are that
Swami Nath Sharma (deceased) S/o Late
Sri Salig Ram Sharma resident of 98/1-H,
Himmatganj,
Allahabad was
traveling
along with Vijay Shyam (Ardali) by the
Jeep No. UGP/7448, driven by Sri Ramesh
Kumar from Pratapgarh to Bhopiamau for
government work on 13.02.2000 when at
7.30 PM. a truck bearing no. UP 42B 0251,
driven by its driver rashly and negligently
was plied ahead of the Jeep and all of
sudden the driver stopped the Truck in the
middle of the road whereby the jeep
10 All. The Oriental Insurance Comp. Ltd. Vs. Smt. Gitanjali Sharma & Ors.
297
'collided' with truck resulting in the death
of Swami Nath on the spot. Swami Nath
Sharma was 46 years 8 months and 12 days
old. He was government servant posted as
district non-formal education officer at
Pratapgarh and he was getting monthly
salary of Rs. 18879/-. after his death he left
his widow, his mother, two brothers and
two sons of brother.The fir of accident was
lodged with the police station Kotwali
Nagar, which was registered on Case Crime
No. 85 of 2000, under Sections 279, 338,
304A IPC against the unknown truck driver
of Truck No. UP 42B 0251. The owner of
the truck was Sant Kumar and Ram Babu
i.e. opposite party nos. 1 and 2; while the
jeep was driven by Ram Phakirey opposite
party no.3. The offending truck and jeep
were insured by the Oriental Insurance
Company Limited, that is opposite party
nos.4 & 5. Hence, compensation of Rs.
88,06,139/- was claimed by the claimants.

4. On behalf of opposite parties nos.4
and 5, joint written statement was filed with
the averments that driver of the offending
truck was not holding a valid and effective
driving license and the alleged accident was
not caused due to negligence of truck driver.
Hence, the Insurance Company denied its
liability to pay compensation.

5. On behalf of opposite party no.3, the
driver of the jeep, averments made in the
claim petition were supported in the written
statement to certain extent. No written
statement was filed on behalf of opposite
party nos. 1 and 2.

6. The Tribunal passed the award on
20.08.2007 granting compensation of Rs.
15,38,452/- and Oriental Insurance Company
insurance company of Truck was directed to
pay the amount of the award to claimants
widow and mother.

7. Heard learned counsels for the
parties and perused the evidence on
record.Parties are refereed as appellant
insurance company or Insurance company
and respondent claimants as claimants .

8. The F.A.F.O. No. 3288 of 2007 is
preferred at the instance of Oriental
Insurance Company, who are aggrieved by
fastening of the liability to pay the amount
of award though there is a finding that there
is breach of policy.

9.

Learned
counsel
for
the
appellant/Insurance
Company
has
contended that the driver of the offending
truck was having the driving license for
heavy passenger vehicle and he was driving
heavy goods vehicle for which he was not
authorized to drive. As such the driver of
the vehicle was not having a valid and
effective driving license at the time of
accident, therefore, the liability to pay the
compensation cannot be fastened on the
appellant/Oriental Insurance Company.It is
submitted by learned counsel for Insurance
Company that the Tribunal itself has held
that drivers of both the vehicles were not
possessing valid driving license, therefore,
the liability can not be set up on the
Insurance Company and the award is bad in
the eye of law. It is further submitted by
counsel for Insurance company that the
accident occurred in the year 2000. The
quantum awarded is on higher side.
Learned
counsel
for
the
appellants
Insurance company of truck has submitted
that the finding of fact as far as the driver
of the truck being sole negligent is bad in
the eye of law as the facts reveal that the
driver of the Jeep was solely negligent as
he rammed in the truck and had contributed
to the accident taking place. It is submitted
by learned counsel Sri Arvind Kumar for
insurance
company
that
as
far
as
298 INDIAN LAW REPORTS ALLAHABAD SERIES
negligence is concerned from the factual
data the Jeep has collided with the Truck
from behind. The Truck though is said to
be stationary. The driver of the Jeep has
ramped into the truck. It is submitted that
even if we accept the submissions of
learned counsel for the claimants that the
Jeep was at moderate speed and the Truck
was not stationary, but was being plied and
abruptly stopped at the place. It is the duty
of the vehicle driver who drives the vehicle
on rear side to drive should take care. It is
submitted that in our case, the impact of the
accident was such that some of the persons
sitting in Jeep collapsed and breathed to
last. This shows that finding of the Tribunal
about absolute negligence of truck driver is
bad and the fact the site plan will
demonstrate that both the vehicle drivers
were negligent.

10. Learned counsel for the respondentclaimants
vehemently
opposed
and
contended that the driver of the offending
truck was having a valid and effective driving
license and the Tribunal has rightly fastened
liability to pay the compensation on the
appellant/Insurance Company. It is submitted
by learned counsel for claimants that the
liability of insurers cannot be absolved just
because the driver of the vehicle had license
to drive heavy vehicle, but was driving what
is known as truck. It is submitted that the
judgment in case of National Insurance
Company Limited Vs. Swarn Singh and
others 2004 (3) SCC 297 and Oriental
Insurance Company Limited Vs. Shiv
Narain Sahani and others 2007 ACJ 1640
and the recent judgment in the case of
Mukund
Dewangan
Vs.
Oriental
Insurance Company Limited and another
(2016) 4 SC 298 would apply as far as the
submission of insurance company assailing
the finding of fact by the Tribunal that the
driver of the truck was authorized to drive
heavy vehicle, but he was driving truck and,
therefore, he was not having license, is not
asserted and the later reasoning has to be
accepted. It is submitted that despite the fact
that the drivers did not have proper driving
license, the Tribunal relied on the judgment
of Swarn Singh (supra) and has come to the
conclusion that main basis of accident was
not lack of endorsement, as the driver had
license to drive heavy vehicle and, therefore,
the tribunal held that on the facts that this was
not fundamental breach of policy condition
and this finding is not perverse. It is further
submitted that that the issue of negligence
qua the claimants is of composite negligence
and that we should decide proportionate
negligence of each driver and that the chargesheet was laid against the truck driver may be
considered.

BREACH OF POLICY AND
OUR FINDINGS ON THE SAME :

11. Having heard the ld advocates as far
as breach of policy is concerned the judgment
of Apex Court in case of Mukund
Dewangan (supra) will apply we are even
fortified in our view that the breach cannot be
said to be such, which would give right of
recovery to the Insurance Company. The
decision of Madhya Pradesh High Court in
case of Kusumlata Vs. Lalaram and others
2003 ACJ 1966 will also not permit us to
take a different view then that which has been
taken by the Tribunal. Thus, it cannot be said
that the driver of the truck was not having
valid driving license. As far as the driving
license of the Jeep driver is concerned, it is
finding of fact that he had license to drive and
the owner has admitted the ownership of the
Jeep. The Jeep was sent for repairs in Mamta
Auto Garrage at Pratapgarh near supply
office and when it got repaired and the driver
was standing near the road at about 7.00
P.M., Sri Sharma (deceased) who had been
10 All. The Oriental Insurance Comp. Ltd. Vs. Smt. Gitanjali Sharma & Ors.
299
Non Formal Education Officer at Pratapgarh,
met the driver along with his peon and
requested to give free-lift towards Bhopiamau
area for performance of his duty and
requested by saying that as it was evening
there is would be no other means to reach
destination. As Sharma (deceased) was well
acquainted and was knew the driver hence
paying respect to a officer, he gave free lift
and Sri Sharma (deceased) occupied the seat
in the Jeep and his peon also accompanied
him.. The license issued by M.V. Dutt issuing
authority, Pratapgarh U.P. is unreadable
whether it is for car, Jeep or other vehicle .
However, it can be said that the driver of the
Jeep had got license to drive motorcycle and
LMV and jeep was a light motor vehicle as
its laden weight was such which would be
seen that jeep was a light motor vehicle. In
F.A.F.O. No. 617 of 1996 (The New India
Insurance Company Limited Vs. Ganga
Singh and others), learned single Judge
view's is based on the judgment in case of
Mukund
Dewangan
Vs.
Oriental
Insurance Company Limited and another
(2016) 4 SC 298 has elaborately discussed
the issue of types of vehicles. We concur with
the Tribunal on two aspects as far as liability
of the Insurance Company is concerned that
license to drive goods vehicle would part take
within it license to drive heavy public vehicle
as per the decision in case of Oriental
Insurance Company Limited Vs. Shiv
Narain Sahani and others 2007 ACJ 1640
and therefore, it cannot be held that offending
Truck driver did not possess valid license to
drive heavy vehicle. The decisions cited
herein-above will not permit us to take
different view then that taken by the Tribunal
as far as the liability of Insurance Company is
concerned.

12. Giving serious consideration to
the submissions advanced by learned
counsels of parties, the relevant provisions
of the Motor Vehicle Act, 1988 are as
under:-

Section 2(16) "'heavy goods
vehicle' means any goods carriage the
gross vehicle weight of which, or a tractor
or a road-roller the unladen weight of
either
of
which,
exceeds
12,000
kilograms;"

Section 2(17) "'heavy passenger
motor vehicle' means any public service
vehicle or private service vehicle or
educational institution bus or omnibus the
gross vehicle weight of any of which, or a
motor car the unladen weight of which,
exceeds 12,000 kilograms;"

Section 2(47) "'transport vehicle'
means a public service vehicle, a goods
carriage, an educational institution bus or
a private service vehicle;"

Section 3. Necessity for driving
license. (1) No person shall drive a motor
vehicle in any public place unless he holds
an effective driving license issued to him
authorizing him to drive the vehicle; and no
person shall so drive a transport vehicle
other than a motor cab or motor cycle
hired for his own use or rented under any
scheme made under sub-section (2) of
section 75 unless his driving license
specifically entitles him so to do.

Section 10. Form and contents
of licences to drive. (1) Every learner's
licence and driving licence, except a
driving licence issued under section 18,
shall be in such form and shall contain
such information as may be prescribed by
the Central Government.

Section
149.
Settlement
by
insurance
company
and
procedure
300 INDIAN LAW REPORTS ALLAHABAD SERIES
therefor.
(1) The insurance company
shall, upon receiving information of the
accident, either from claimant or through
accident information report or otherwise,
designate an officer to settle the claims
relating to such accident.

(2) An officer designated by the
insurance company for processing the
settlement of claim of compensation may
make an offer to the claimant for settlement
before the Claims Tribunal giving such
details, within thirty days and after
following such procedure as may be
prescribed by the Central Government.

(3) If, the claimant to whom the
offer is made under sub-section (2),-

(a) accepts such offer,-

(i) the Claims Tribunal shall make
a record of such settlement, and such claim
shall be deemed to be settled by consent; and

(ii) the payment shall be made by
the insurance company within a maximum
period of thirty days from the date of receipt
of such record of settlement;

(b) rejects such offer, a date of
hearing shall be fixed by the Claims Tribunal
to adjudicate such claim on merits.

13. The conjoint reading of these
provisions enumerated in Section 2(16) &
2(17) shows that heavy good vehicle as
well as heavy passenger motor vehicle of
which gross vehicle weight exceeds 12000
Kg., both come within the definition of
transport vehicle under section 2(47) of
Motor Vehicle Act, 1988.

14. Chapter II of Motor Vehicle Act,
1988 inter-alia provides for compulsory
insurance for vehicle in relation to matters
specified therefor. The provisions for
compulsory insurance indisputably has
been made with a view to protect the right
of third party.

15. The Hon'ble Apex Court in case
of National Insurance Company Limited
Vs. Swaran Singh and others (2004) 3
Supreme Court Cases 297 has held:-

"42. We may also take note of the
fact that whereas in Section 3 the words
used are "effective license", it has been
differently worded in Section 149(2) i.e.
"duly licensed". If a person does not hold
an effective licence as on the date of the
accident, he may be liable for prosecution
in terms of Section 141 of the Act; but
Section 149 pertains to insurance as
regards third-party risks.

43. A provision of a statute which
is penal in nature vis-a-vis a provision
which is beneficent to a third party must be
interpreted differently. It is also well known
that the provisions contained in different
expression
are
ordinarily
construed
differently.

44. The words "effective licence"
used in Section 3, therefore, in our opinion,
cannot be imported for sub-section (2) of
Section 149 of the Motor Vehicles Act. We
must also notice that the words "duly
licensed" used in sub-section (2) of Section
149 are used in the past tense.

47. If a person has been given a
licence for a particular type of vehicle as
specified therein, he cannot be said to have
no licence for driving another type of
vehicle which is of the same category but of
different type. As for example, when a
person is granted a licence for driving a
10 All. The Oriental Insurance Comp. Ltd. Vs. Smt. Gitanjali Sharma & Ors.
301
light motor vehicle, he can drive either a
car or a jeep and it is not necessary that he
must have driving licence both for car and
jeep separately.

51. It is trite that where the
insurers, relying upon the provisions of
violation of law by the assured, take an
exception to pay the assured or a third
party, they must prove a wilful violation of
the law by the assured. In some cases
violation of criminal law, particularly,
violation of the provisions of the Motor
Vehicles Act may result in absolving the
insurers but, the same may not necessarily
hold good in the case of a third party. In
any event, the exception applies only to
acts done intentionally or "so recklessly as
to denote that the assured did not care
what the consequences of his act might be."

90. We have construed and
determined the scope of sub-clause (ii) of
sub-section (2) of Section 149 of the Act.
Minor breaches of licence conditions, such
as want of medical fitness certificate,
requirement about age of the driver and the
like not found to have been the direct cause
of the accident, would be treated as minor
breaches of inconsequential deviations with
regard to licensing conditions would not
constitute sufficient ground to deny the
benefit of coverage of insurance to the third
parties."

16. It shall be noted that the said term
did not specify the type of license i.e., the
license to drive "heavy goods vehicle" or
"transport vehicle". The "transport vehicle"
is defined in clause 33 of Section 2 of the
Act to mean, "a public service vehicle or a
goods vehicle". "Public Service Vehicle" is
defined in clause 25 of Section 2 of the Act
to mean, "any motor vehicle used or
adapted to be used for the carriage of
passengers for hire or reward, and includes
a motor cab, contract carriage, and stage
carriage." "Goods vehicle" is defined in
clause 8 of the said Section 2 to mean, "any
motor vehicle constructed or adapted for
use for the carriage of goods, or any motor
vehicle not so constructed or adapted when
used for the carriage of goods solely or in
addition to passengers". "Heavy goods
vehicle" has been defined in clause 9 of
Section 2 of the Act to mean, "any goods
vehicle the registered laden weight of
which or a tractor the unladen weight of
which, exceeds 11,000 kilo grams."

17.

Considering
the
aforesaid
definitions, we are of the opinion that any
"goods vehicle", "heavy goods vehicle" or
"public service vehicle" can be commonly
called as "transport vehicle". In other
words, the heavy goods vehicle is not
different from a transport vehicle. Any
person possessing a driving license for a
transport vehicle can be said to hold a valid
license to drive either a goods vehicle or a
public service vehicle. The offending truck
was necessarily a heavy goods vehicle
within the meaning of clause 9 of section 2
of the Act. The driver of the offending
truck thus possessed a valid license to drive
the offending truck. In my opinion, the
Tribunal has erred in distinguishing the
"transport vehicle" from a "heavy goods
vehicle" without considering the above
referred statutory definitions appearing in
the Act. The Tribunal has thus erred in
absolving the Insurance Company from its
liability in respect of the compensation
awarded to the claimants who are heirs of
non tort fessor .

18. On behalf of the owner of the
offending
truck,
neither
the
written
statement was filed and nor the driver of
the offending truck was produced in the
302 INDIAN LAW REPORTS ALLAHABAD SERIES
witness box. The driving license of the
offending truck driver Mool Chand is
produced at paper no.44A on record, from
which it transpires that the driving license
of Mool Chand, was originally of light
motor vehicle and same was endorsed as a
heavy passenger vehicle on 20.07.1999 by
the licensing Authority which was valid
from 20.07.1999 to 19.07.2002. As the
accident
was
caused
on
13.02.2000,
therefore, this license of offending truck
driver Mool Chand was valid and effective
on the date of accident. Reference to
decision of the division bench in FIRST
APPEAL FROM ORDER No. - 2103 of
2017 between National Insurance Co.
Ltd. Vs. Smt. Anuradha Kejriwal And 4
others wherein this court has held as
follows:

"The submission of Insurance
companies is rejected and we uphold the
finding of the tribunal. While considering
the case of the Insurance Company, can it
be said that the driver did not have valid
driving licence? This question has to be
answered in favour of the claimants. We
are fortified in our view by the latest
decision of the Apex Court in Nirmala
Kothari Vs. United India Insurance Co.
Ltd., (2020) 4 SCC 49.

19. Further, this issue also is
answered against the Insurance Company
as the Insurance Company has not
examined any person so as to prove that the
report of the R.T.O. is vitiated. We are
even supported in our view by the decision
of this Court in Oriental Insurance
Company
Limited
Vs.
Poonam
Kesarwani and others, 2008 LawSuit
(All) 1557, where in a similar situation
converse view then that contended by Sri
K.S. Amist is taken. Reliance can also be
placed on the finding of the Tribunal which
unless proved to the contrary should not be
easily interfered with. Further, the owner of
the vehicle was satisfied and it was proved
that he has taken all care and caution that
vehicle was being driven by a person who
was authorised to drive the same which is
even apparent from the fact that the owner
has gone to the extent of producing
evidence so as to bring home the fact that
there was no breach of policy condition.

20. In that view of the matter, on the
facts and the law, it cannot be said that the
owner has committed breach of policy
conditions. Thus the submission of counsel
for insurance company regarding breach of
policy has to be rejected and is rejected

21. This takes us to the issue of
negligence and compensation awarded
which has aggrieved the claimants and the
Insurance Company.

ISSUE OF NEGLIGENCE RAISED
AND OUR FINDINGS FOR THE
SAME;

22. As far as the question of
Negligence is concerned we reiterate the
submissions
of
learned
counsel
for
insurance company of truck Sri Arvind
Kumar that as far as negligence is
concerned from the factual data the Jeep
has collided with the Truck from behind.
The Truck though is said to be stationary.
The deceased was not a tort fessor the
driver of the Jeep has ramped into the
truck. It is submitted that even if we accept
the submissions of learned counsel for the
claimants that the Jeep was at moderate
speed and the Truck was not stationary, but
was being plied and abruptly stopped at the
place. It is the duty of the vehicle driver
who drives the vehicle on rear side to drive
the vehicle after taking care. In our case,
10 All. The Oriental Insurance Comp. Ltd. Vs. Smt. Gitanjali Sharma & Ors.
303
the impact of the accident was such that
people sitting in Jeep collapsed and
breathed to last.

23. We are of the view that the
distinction is of nature of use of the vehicle
which makes no difference as the driver of
the offending vehicle having a driving
license of heavy passenger vehicle was
driving a heavy goods vehicle and same
falls within the definition of transport
vehicle; consequently he was having a
valid and effective driving license at the
time of accident and Insurance Companyappellant cannot avoid from its liability to
pay compensation. Therefore, the Tribunal
has rightly fastened the liability to pay the
compensation to the appellant and same
needs no interference. We would have
decided proportionate negligence of each
driver and that the charge-sheet was laid
against the truck driver as raised by the
insurance company of truck will have to
discussed and will have to be decided on
the touch stone of principles for deciding
the issue relating to negligence. The Jeep
dashed the truck from behind. The Jeep
must be driven with such speed that after
dashing the truck on its right side it dashed
with a cyclist just because charge-sheet was
laid against driver of the truck it could not
be absolved, the driver of the Jeep had also
to maintain safe distance, which he had not
maintained.

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

"4. It is a case of composite
negligence where injuries have been
caused to the claimants by combined
wrongful act of joint tort feasors. In a case
of accident caused by negligence of joint
tort feasors, all the persons who aid or
counsel or direct or join in committal of a
wrongful act, are liable. In such case, the
liability is always joint and several. The
extent of negligence of joint tort feasors in
such a case is immaterial for satisfaction of
the claim of the plaintiff/claimant and need
not be determined by the by the court.
However, in case all the joint tort feasors
are before the court, it may determine the
extent of their liability for the purpose of
adjusting inter-se equities between them at
appropriate stage. The liability of each and
every joint tort feasor vis a vis to
plaintiff/claimant cannot be bifurcated as it
is joint and several liability. In the case of
composite negligence, apportionment of
compensation between tort feasors for
making payment to the plaintiff is not
permissible as the plaintiff/claimant has the
right to recover the entire amount from the
easiest targets/solvent defendant.

14. There is a difference between
contributory and composite negligence. In
the case of contributory negligence, a
person who has himself contributed to the
extent cannot claim compensation for the
injuries sustained by him in the accident to
the extent of his own negligence;whereas in
the case of composite negligence, a person
who has suffered has not contributed to the
accident but the outcome of combination of
negligence of two or more other persons.
This Court in T.O. Anthony v. Karvarnan
& Ors. [2008 (3) SCC 748] has held that in
case of contributory negligence, injured
need
not
establish
the
extent
of
responsibility
of
each
wrong
doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong doer separately. It is only in the case
of contributory negligence that the injured
himself has contributed by his negligence
in the accident. Extent of his negligence is
304 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
10 All. The Oriental Insurance Comp. Ltd. Vs. Smt. Gitanjali Sharma & Ors.
305
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

25. The latest decision of the Apex
Court in Khenyei (Supra) has laid down
one further aspect about considering the
negligence
more
particularly
composite/contributory
negligence.
The
deceased or the person concerned should be
shown to have contributed either to the
accident and the impact of accident upon
the victim could have been minimised if he
had taken care. The judgment in case of
New India Insurance Company Limited
Vs. Smt. Kalpana and others 2007 TAC
795 will not permit us to concur with the
finding of the Tribunal. As far as it relates
to negligence, we hold that both the drivers
were negligent.

26. As far as the case of claimants is
concerned, it would be a case of composite
negligence as the claimants are heirs of the
person, who has died in the accident and
was not contributory to accident. The
evidence led will permit us to up turn the
finding of the Tribunal as far as it relates to
negligence. It is not known whether the
Truck was in middle of the road or was on
right side or not, as the accident occurred
on 13.02.20000 at 7.30 P.M. in the dark
and darkness would have settled at the
point of time. Thus, even from the site plan
just because charge-sheet was laid against
the driver of the Truck he cannot be held to
be solely negligent. It has not been proved
from evidence led that the Truck driver had
dragged the Truck in reckless manner or
driven his vehicle, the Jeep driver ramped
into stationary truck or truck going ahead.
306 INDIAN LAW REPORTS ALLAHABAD SERIES
Truck driver is also to be held negligent in
our view. PW-2 in his evidence opined that
both the drivers were negligent. The
Tribunal has held that issue no.1 is decided
in favour of the claimants. We hold both
the vehicle drivers to be equally negligent.
Hence, the reasoning of the Tribunal is
modified to the said effect.

Compensation:-

27. As far as the submission of the
claimants
and
Insurance
Company
regarding
compensation
awarded
is
concerned is considered in view of settled
legal principles . The Tribunal has
considered the income of the deceased Rs.
14725/- per month. The documentary
evidence shows that the deceased was a
government employee and his pay packet
was Rs. 19879/- and Rs. 4153 was
deducted towards various heads. He was in
the age bracket of 45-49. The Tribunal has
deducted the amount which could not have
been done and, therefore, the deduction
which is permissible would be Income tax
.The Tribunal unfortunately did not grant
any amount under the head of future loss of
income on the ground that till what age he
live and he can also die due to other
reasons so the family was held not entitled
for addition of future loss of income this
finding
is
perverse.
The
Tribunal
unfortunately misread and has relied on the
judgment in case of Asha and others Vs.
United
India
Insurance
Company
Limited 2004 ACJ 448. This finding on
the basis of the said decision is nothing but
misreading of the said judgment. On what
basis the Tribunal has not granted any
amount under future loss of income for a
salaried person is also perverse. The
Tribunal has considered several judgments
cited before it relating to future loss of
income but with the perversity has rejected
the same just because he was survived by
widow and mother only and as the
deceased has no children future loss is not
granted as widow is serving.

28. F.A.F.O. No. 3442 of 2007 is
preferred by the claimants, who are
aggrieved by computation of compensation,
the learned counsel for the appellants
contended that the Tribunal had deducted
the GPF, GIS, house loan and other items
out of the gross salary of the deceased
while such deductions are not permissible
in view of law laid down by the Hon'ble
Apex Court. On behalf of Insurance
Company, learned counsel conceded that
the GPF, GIS, Gratuity etc. should be
deducted from the salary.

29. The submission of the counsel for
the claimants that family pension and
amount under insurance policy, amount of
gratuity, PF, Bonus, Death-cum-retirement
benefit are not deductible from the income
of the deceased since it would be available
to the claimants even if death has not arisen
out of the accident. The relience on the
decisions of the Hon'ble Apex Court in case
of Vimal Kanwar and others Vs. Kishor
Dan and others (2013) 7 SCC 476 will
permit us to uphold the submission of the
counsel for claimants as the decision of the
tribunal is against settled legal position and
case
titled
Helen
C.
Rebello
Vs.
Maharashtra SRTC 3 (1999) 1 SCC 90
will also enure for the benefit of claimants .
In the said cases, the Court held that
provident fund, pension, insurance and
similarly any cash, bank balance, shares,
fixed deposits, etc. are all a "pecuniary
advantage" receivable by the heirs on
account of one's death but all these have no
correlation with the amount receivable
under a statute occasioned only on account
of accidental death. Such an amount will
10 All. The Oriental Insurance Comp. Ltd. Vs. Smt.