# The Oriental Insurance Company Ltd v. Shamshad Ali &Ors

- **Citation:** (2019) 1 ILRA 646
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-16
- **Case number:** First Appeal From Order No.47 of 2003
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-company-ltd-v-shamshad-ali-ors-44533
- **Pages:** 9

## Headnote

Sri Nigamendra Shukla, Sri Amresh Sinha.

A.
Contributory
Negligence
-
negligent act must contribute to the
negligence- head on collision - both
drivers equally negligent.

B. Driving license- no produced by any
drivers- first liability of the Insurance
Company- money can be recovered from
the owner- finding upturned.
Chronological List of Cases Cited: -

1.Civil Appeal No. 5906 of 2008 Pawan
Kumar and Anr. Vs. M/s Harikrishan Dass
Mohan Lal & Ors (SC)

2.First Appeal From Order No. 1818 of
2012 Bajaj Allianz General Insurance Co.
Ltd. Vs. Smt. Renu Singh and Ors.
1 All. The Oriental Insurance Company Ltd. Vs. Shamshad Ali & Orts.
647
3.AIR 2018 SC 1143 Archit Saini and Anr.
Vs. Oriental Insurance Co. Lt.

## Text

646 INDIAN LAW REPORTS ALLAHABAD SERIES
of powers given to the Central Government
under
Section
3
of
the
Essential
Commodities Act and is therefore, on
account of a change in law."

The Tribunal has relied on the
decisions of the Privy Counsel and Apex
Court and also relied upon the affidavit of
appellant filed before the Tribunal before the
Award passed.

The awarding of interest cannot be
said to be in any manner, warranting any
interference, however, the factum of interest, in
our view may be considered, which in our view
is on higher side looking to prevalent practice at
the relevant time. The quantum of interest, if
reduced to 9% from 15%, the same would meet
with ends of justice. As a result thereof, we
modified the same and factum of interest is
ordered to be reduced from 15% to 9%. The rest
of the award is not interfered in any manner."

19. While going through the record,
it is clear that grounds of appeal were
against the continuation of the arbitrator
and his removal was stayed and he was
authorized to give the arbitral award.
Arbitral award cannot be said to be exparte award. The objection was also heard
by the learned Judge. The judgment and
decree cannot be said to be such which
would permit this Court to allow the
appeal. It cannot be said that the arbitrator
misdirected and misconducted himself
and, therefore, also the judgment of Court
below cannot be interfered with in view
of the the settled legal position. The only
interference which can be shown is quo
the interest and interest shall be at 9% and
not 12%.

20. In the final analysis, this appeal is
partly allowed. As far as the rate of interest is
concerned, the arbitral award and the order of
the Court below shall stand modified to the
extent that the rate of interest shall be 9% and
not 12% as ordered by arbitrator confirm by
the Court below. The stay shall stands
vacated. If the amount is yet not deposited or
partly deposited the said shall recalculated and
be deposited within 12 weeks from today
before the Court below.

21. The record and proceedings be
sent back to the Tribunal.
---------
APPELLATEJURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2019

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

First Appeal From Order No.47 of 2003

The Oriental Insurance Company Ltd.
 ...Appellant
Versus
Shamshad Ali &Ors. ...Respondents

Counsel for the Appellant:
Sri V.C.Dixit

Counsel for the Respondents:
Sri Nigamendra Shukla, Sri Amresh Sinha.

A.
Contributory
Negligence
-
negligent act must contribute to the
negligence- head on collision - both
drivers equally negligent.

B. Driving license- no produced by any
drivers- first liability of the Insurance
Company- money can be recovered from
the owner- finding upturned.
Chronological List of Cases Cited: -

1.Civil Appeal No. 5906 of 2008 Pawan
Kumar and Anr. Vs. M/s Harikrishan Dass
Mohan Lal & Ors (SC)

2.First Appeal From Order No. 1818 of
2012 Bajaj Allianz General Insurance Co.
Ltd. Vs. Smt. Renu Singh and Ors.
1 All. The Oriental Insurance Company Ltd. Vs. Shamshad Ali & Orts.
647
3.AIR 2018 SC 1143 Archit Saini and Anr.
Vs. Oriental Insurance Co. Lt.

4. 2015 LawSuit (SC) 469 Khenyei Vs. New
India Assurance Company Ltd. & Ors

5.AIR 2018 SC 592 Pappau and ors Vs.
Vinod Kumar Lamba and Ors

6.(2014) 5 SCC 330 Sanjay Kumar Vs.
Ashok Kumar and another

7.(2014) 2 SCC 735 Syed, Sadiq and
others Vs. Divisional Manager, United
India Insurane Company Limited

8.(2014) 11 SCC 178U V. Mekala Vs. M.
Malathi and Anr. (E-10)

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

1. Heard Sri V.C. Dixit, learned counsel
for the appellant and Sri Amresh Sinha,
learned
counsel
for
the
respondent
Insurance company. None appears for the
owner.

2. By means of this appeal, the
appellant challenges the judgment and
award dated 7.10.2002 passed by Motor
Accident
Claims
Tribunal,
Meerut,
(hereinafter referred to as 'Tribunal') in
Motor Accident Claim Petition No. 764 of
1999 awarding a sum of Rs. 4,33,710/-
with interest at the rate of 9 per cent.

3. The claim petition was preferred
under Section 163-A of the Motor Vehicles
Act, 1988 (hereinafter referred to as "the Act")
claiming a sum of Rs.26 Lac with 18% rate of
interest. As far as the claimant injured is
concerned, he was a person who was a
conductor/helper in one of the vehicle. The
issue is could the Tribunal had decided the
issue of negligence in a claim petition under
Section 163-A of the Act. Could the Tribunal
has decided the issue of negligence? In a
petition under Section 163-A of the Act it
should not have which means that the
Tribunal went on to decide the claim petition
as if it was a claim petition under Section 166
of the Act and, therefore, this Court will have
to ascertain whether it was a case of coauthorship of negligence of the drivers who
were driving the vehicles and qua the claimant
it would be a case of composite negligence.
The principles enunciated for deciding
negligence by the various courts would have
to be visualized which are as follows:-

4. The concept of contributory
negligence has been time and again
evolved, decided and discussed by the
courts.

5. 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.

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

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

"6.
"Composite
negligence"
refers to the negligence on the part of two
or more persons. Where a person is
injured as a result of negligence on the
part of two or more wrongdoers, it is said
that the person was injured on account of
the
composite
negligence
of
those
wrongdoers. In such a case, each
wrongdoer is jointly and severally liable
to the injured for payment of the entire
damages and the injured person has the
choice of proceeding against all or any of
them. In such a case, the injured need not
establish the extent of responsibility of
each wrongdoer separately, nor is it
necessary for the court to determine the
extent of liability of each wrongdoer
separately. On the other hand where a
person suffers injury, partly due to the
negligence on the part of another person
or persons, and partly as a result of his
own negligence, then the negligence on
the part of the injured which contributed
to the accident is referred to as his
contributory
negligence.
Where
the
injured is guilty of some negligence, his
claim for damages is not defeated merely
by reason of the negligence on his part but
the damages recoverable by him in
respect of the injuries stand reduced in
proportion to his contributory negligence.

7.

Therefore,
when
two
vehicles are involved in an accident, and
one of the drivers claims compensation
from the other driver alleging negligence,
and the other 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."

7. 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 which 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
1 All. The Oriental Insurance Company Ltd. Vs. Shamshad Ali & Orts.
649
inference to be drawn from proved facts.
Negligence is not an absolute term, but is
a relative one. It is rather a comparative
term. What may be negligence in one case
may not be so in another. Where there is
no duty to exercise care, negligence in the
popular sense has no legal consequence.
Where there is a duty to exercise care,
reasonable care must be taken to avoid
acts or omissions which would be
reasonably foreseen likely to caused
physical injury to person. The degree of
care required, of course, depends upon
facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

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

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

20. These provisions (sec.110A
and sec.110B of Motor Act, 1988) are not
merely
procedural
provisions.
They
substantively affect the rights of the
parties. The right of action created by
Fatal Accidents Act, 1855 was 'new in its
species, new in its quality, new in its
principles. In every way it was new. The
right given to legal representatives under
Act, 1988 to file an application for
compensation for death due to a motor
vehicle accident is an enlarged one. This
right cannot be hedged in by limitations
of an action under Fatal Accidents Act,
1855. New situations and new dangers
require new strategies and new remedies.
650 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In the light of the above
discussion, we are of the view that even if
courts may not by interpretation displace
the principles of law which are considered
to be well settled and, therefore, court
cannot dispense with proof of negligence
altogether in all cases of motor vehicle
accidents, it is possible to develop the law
further on the following lines; when a
motor vehicle is being driven with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits (per three-Judge Bench in
Jacob Mathew V/s. State of Punjab, 2005
0 ACJ(SC) 1840).

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."

8. The insurance company has failed
to prove that accident occurred due to
carrying of more persons as pillion rider. In
absence of such a finding, the insurance
company having not proved factum of
negligent on the part of the scooterist,
cannot be benefitted. The negligent act must
contribute to the accident having taken
place. The Apex Court recently has
considered the principles of negligence in
case of Archit Saini and Antother Vs.
Oriental Insurance Company Limited,
AIR 2018 SC 1143.

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

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

14. There is a difference between
contributory and composite negligence. In the
case of contributory negligence, a person who
has himself contributed to the extent cannot
claim compensation for the injuries sustained
by him in the accident to the extent of his own
negligence;whereas in the case of composite
negligence, a person who has suffered has not
contributed to the accident but the outcome of
combination of negligence of two or more
other persons. This Court in T.O. Anthony v.
Karvarnan &Ors. [2008 (3) SCC 748] has
held that in case of contributory negligence,
injured 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
1 All. The Oriental Insurance Company Ltd. Vs. Shamshad Ali & Orts.
651
separately. It is only in the case of contributory
negligence that the injured himself has
contributed by his negligence in the accident.
Extent of his negligence is required to be
determined as damages recoverable by him in
respect of the injuries have to be reduced in
proportion to his contributory negligence. The
relevant portion is extracted hereunder :

"6.
'Composite
negligence'
refers to the negligence on the part of two
or more persons. Where a person is
injured as a result of negligence on the
part of two or more wrong doers, it is said
that the person was injured on account of
the composite negligence of those wrongdoers. In such a case, each wrong doer, is
jointly and severally liable to the injured
for payment of the entire damages and the
injured
person
has
the
choice
of
proceeding against all or any of them. In
such a case, the injured need not establish
the extent of responsibility of each wrongdoer separately, nor is it necessary for the
court to determine the extent of liability
of each wrong-doer separately. On the
other hand where a person suffers injury,
partly due to the negligence on the part of
another person or persons, and partly as a
result of his own negligence, then the
negligence of the part of the injured
which contributed to the accident is
referred to as his contributory negligence.
Where the injured is guilty of some
negligence, his claim for damages is not
defeated merely by reason of the
negligence on his part but the damages
recoverable by him in respect of the
injuries stands reduced in proportion to
his contributory negligence.

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

18.
This
Court
in
Challa
Bharathamma &Nanjappan (supra) has
dealt with the breach of policy conditions by
the owner when the insurer was asked to pay
the compensation fixed by the tribunal and the
right to recover the same was given to the
insurer in the executing court concerned if the
dispute between the insurer and the owner
was the subject-matter 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 - trailortruck 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
652 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

10. The findings on issue nos.1 and 4
relating to negligence goes to show that the
Tribunal has exonerated the other driver
just because the chargesheet was not laid
against the driver of trolley no. HR 37
4343. On 12.5.1999, the accident occurred
in the early morning. It was a head on
collision. The conductor - claimant has
deposed that the tanker was dashed with
the trailer. The tanker number was HR-383144. The claimant in his deposition has
categorically mentioned that both the
drivers are equally responsible. The road
was about 20 feet broad. The trolley driver
has not stepped into the witness box.
Hence, both the drivers will have to be
held equally negligent.

11. The finding on issue no.2 goes to
show that neither of the owner nor the driver
appeared before the Tribunal. They did not
prove that the driver of either of the vehicles
had produced any driving licence. The
Tribunal threw the onus on the Insurance
company to prove the negative. This kind of
finding has been disapproved by the Apex
Court in Pappu and others Vs. Vinod
Kumar Lamba and another, AIR 2018 SC
592 and Ram Chandra Singh Vs. Rajaram and
others, AIR 2018 SC 3789, wherein it has
been held that the liability of Insurance
company arises only if the truck was driven
by authorized person. Recently the Apex
Court has held that where there was no licence
or a fake licence, the compensation be first
paid by the Insurance company and can be
recovered from the owner. In this case, the
appellant has been ordered to deposite the
entire amount by the interim direction of this
Court given on 7.1.2003 and, therefore, it will
be entitled to recover its portion from the
owner, driver and Insurance company of the
1 All. The Oriental Insurance Company Ltd. Vs. Shamshad Ali & Orts.
653
other tortfeasor. The finding of the Tribunal is
upturned to this extent.

12. It is an admitted position of fact
that driving licence was not produced.
Neither Sri Amresh Sinha nor Sri
Nigamendra
Shukla
appearing
for
respondents could dispute the fact.

CROSS OBJECTION

13. The cross objection has been
filed after 12 years. The judgment of the
Apex Court will not permit this Court to
dismiss the cross objection as the appeal
preferred by the Insurance company is
pending before this Court.

14. As the appeal preferred by
Insurance company is pending, the said
objection is over ruled.

15. The question of compensation
and the quantum will also have to be
looked into as held above the matter was
decided as a matter under 166 of the Act
and, therefore, it cannot be said that it was
considered under 163-A of the Act.

16. It is submitted by the counsel for
the claimant that the income of the injured
could not have been Rs.2000/- per month.
The income should have been considered
to be Rs. 15,000/- per annum. The
compensation awarded is on higher side
as against this, Sri Nigamendra Shukla
appearing for the claimant in the cross
objection, has submitted that his income
should have considered Rs.3,000/- per
month as he was in employment. It is
submitted that his both the lower limbs
were
amputed.
The
Tribunal
has
considered to grant 100% by way of loss
of
income
and
the
Tribunal
has
considered Rs.50,000/- under the head of
pain shock suffering and he has been
awarded sum of Rs.20,710/- under the
head of medical expenses. The Tribunal
granted 9% rate of interest.

17. The pain shock suffering for
amputation of both legs will be Rs.2 Lac
as per the judgment of Apex Court and in
view of the Division Bench Judgement in
FIRST APPEAL FROM ORDER No. -
199
of
2017
(National
Insurance
Company
Limited,
Lucknow
Versus
Lavkush
and
another),
decided
on
21.3.2017, and the said judgment has
been ordered to be circulated.

39. Section 168 contemplates
determination of "just compensation".
'Just'
means,
fair,
reasonable
and
equitable amount accepted by legal
standards. "Just compensation" does not
mean perfect or absolute compensation.
"Just compensation" principle requires
examination
of
particular
situation
obtaining uniquely in an individual case.

40. When compensation is to
be determined on an application under
Section 166, various heads under
which damages are to be assessed,
have to be looked into by Tribunal and
not by merely determining income and
applying multiplier.

41. We may consider some
broad aspects in the context of injury/
disability and death separately.

Bodily Injury/Disability

42.
Here
damages
are
broadly
in
two
categories,
i.e.,
pecuniary
damages
and
special
damages.
Pecuniary
damages
are
654 INDIAN LAW REPORTS ALLAHABAD SERIES
those
which
victim
has
actually
incurred and which are capable of
being calculated in terms of money.
Pecuniary damages may include: (i)
medical
attendance;
(ii)
loss
of
earning profit upto the date of trial;
(iii) other material loss.

43. Non-pecuniary damages
are such which are incapable of being
assessed by arithmetical calculation.
They may include; (i) damages for
mental
and
physical
shock,
pain
suffering, already suffered or likely to
be suffered in future; (ii) damages to
compensate for the loss of amenities
of life which may include a variety of
matters, i.e., on account of injury the
claimant may not be able to walk, run
or sit; (iii) damages for the loss of
expectation of life, i.e., on account of
injury the normal longevity of the
person concerned is shortened; (iv)
inconvenience, hardship, discomfort,
disappointment, frustration and mental
stress in life.

and
in
the
following
decisions reliance can be placed as
they relate to additional amount being
paid for future loss of income even in
the case of injured claimant:-

(I) Sanjay Kumar Vs. Ashok
Kumar and another, (2014) 5 SCC
330;

(II) Syed. Sadiq and others
Vs. Divisional Manager, United India
Insurance Company Limited, (2014) 2
SCC 735;

(III)
V.
Mekala
Vs.
M.
Malathi and another, (2014) 11 SCC
178; and

(IV) Uttar Pradesh Motor
Vehicles
(Eleventh
Amendment)
Rules, 2011.

18. Additional amount of Rs.1 Lac
for his future loss of income requires
to be granted looking to the fact that
he has been totally crippled and he
will not be able to do the work of
conductor. He is entitled to a sum of
Rs.50,000/- for each limb for getting
artificial limb or crutches. The amount
awarded by the Tribunal is enhanced
by
Rs.4
Lac.
The
amount
not
deposited yet be deposited within 12
weeks.

19. The interest at the rate of
9% from the date of filing of the
claim petition till award and 6%
thereafter from the date of filing of
cross
objection.
The
Insurance
companies first shall deposit their
share of the amount namely 50%
each and then recover the said
amount
from
the
owner.
The
appellant
would
be
entitled
to
recover
the
amount
deposited
pursuant to the interim order from
the driver - owner as per the
procedure prescribed.

20. Record and proceedings be
sent back to the Tribunal. Appeal and
cross-objection
both
are
partly
allowed.

21. This Court is thankful to both
the counsels to see that this very old
matter is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.09.2019

BEFORE