# U.P.S.R.T.C., Lucknow v. Ashok Kumar Sharma

- **Citation:** (2023) 5 ILRA 134
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-05
- **Case number:** First Appeal From Order No. 73 of 2003
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-lucknow-v-ashok-kumar-sharma-50178
- **Pages:** 7

## Headnote

A. Civil Law - Motor Vehicle Act, 1988 -
Section
176-challenge
to-quantum
of
compensation awarded highly excessiveclaimant sustained 75% of disability-the
tribunal awarded an amount of Rs.
6,56,331/- and has not granted future loss
of
income-Thus,
the
compensation
awarded cannot be said to be on the
higher side and rate of interest would be
9% -Hence, no question of interference
with
the
quantum
which
has
been
awarded. (Para 1 to 13)

B. 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 a 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 claimant and need not be
determined by the court.(Para 10)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

134 INDIAN LAW REPORTS ALLAHABAD SERIES
damages or compensation to the third party.
It would not be the owner.

51. To the understanding of the Court,
this is evident from the holding of the
Supreme Court in Guru Govekar, where
as already said, it was held that under the
law of torts, the owner would not be
vicariously liable for the injury to a third
party caused by an independent contractor
or bailee, like a repairer or mechanic,
holding the vehicle under a contract or
bailment. It is quite another matter that in
Guru Govekar, their Lordships held the
insurer liable under the statute, which
provides for the liability of the insurer to a
third party, independent of the fact whether
the owner was using the vehicle or a bailee,
to whom the owner had entrusted it for
repairs etc. Thus, the principle in Guru
Govekar would also support the liability of
the independent contractor to a third party
in a situation, where the vehicle is
uninsured. In the considered opinion of this
Court, the independent contractor, that is to
say, the mechanic would be liable to
compensate the claimant-respondent No.1,
as directed by the Tribunal under the
impugned award.

52. In the opinion of this Court,
therefore, no case for interference with the
impugned judgment and award is made out.

53. In the result, this appeal fails and
is dismissed.

54. Costs easy.
----------
(2023) 5 ILRA 134
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2023

BEFORE

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

First Appeal From Order No. 73 of 2003

U.P.S.R.T.C., Lucknow ...Appellant
Versus
Ashok Kumar Sharma ...Respondent

Counsel for the Appellant:
Sri C.P. Srivastava, Sri Amit Manohar, Sri
Anubhav Chandra, Sri Anuj Srivastava, Sri
A.K. Saxena

Counsel for the Respondent:
Sri G.L., Tripathi, Sri B.D. Shukla, Sri
Saurabh Roy

A. Civil Law - Motor Vehicle Act, 1988 -
Section
176-challenge
to-quantum
of
compensation awarded highly excessiveclaimant sustained 75% of disability-the
tribunal awarded an amount of Rs.
6,56,331/- and has not granted future loss
of
income-Thus,
the
compensation
awarded cannot be said to be on the
higher side and rate of interest would be
9% -Hence, no question of interference
with
the
quantum
which
has
been
awarded. (Para 1 to 13)

B. 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 a 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 claimant and need not be
determined by the court.(Para 10)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Bajaj Allianz Gen. Ins. Co. Ltd. Vs Smt. Renu
Singh & ors. FAFO No. 1818 of 2012
5 All. U.P.S.R.T.C., Lucknow Vs. Ashok Kumar Sharma
135
2. Rylands Vs Fletcher (1868) 3 HL (LR) 330

3. Jacob Mathew Vs St. of Punj. (2005) 0 ACJ
SC 1840

4. Khenyei Vs New India Assur. Co. Ltd. & ors.
(2015) LawSuit SC 469

5. T.O. Anthony Vs Karvarnan & ors. (2008) (3)
SCC 748

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

1. Heard Sri A.K.Saxena, learned
counsel for the appellant and learned
counsel for respondent.

2. This appeal, at the behest of the
U.P.S.R.T.C, challenges the judgement and
award
dated
18.09.2002
passed
by
M.A.C.T/11-Additional
District
Judge,
Kanpur Nagar (hereinafter referred to as
"Tribunal") in M.A.C.P. No. 568 of 1999.
The fact that the vehicle is involved in the
accident which takes place on 25.11.1998 is
not in dispute, therefore, involvement of the
vehicle is not in dispute. Only dispute now is
regarding contributory negligence of injured
and the quantum and misjoinder of parties.

3. Brief facts as culled out from the
record are that on 25.11.1998 at about
12:15 p.m, Ashok Kumar Sharma was
going to Hathras for his business on his
Vespa
Scooter
no.
U.P.
81F-4862.
U.P.S.R.T.C driven by its driver rashly and
negligently hit the scooter as a result of
which Ashok Kumar Sharma sustained
grievous injuries got his leg fractured from
various places. Injured was given treatment
in Hathras but to grievous injuries he was
referred to Indraprastha Sarita Vihar, Delhi.

4. The deceased was 35 years of age at
the time of accident and he was working in
M/s Janardan Sharma & company and was
earning Rs. 5000/-p.m. He was a married
person having two minor children and a
wife. The tribunal has granted a lumsum
amount of Rs. 6,56, 331/-.

5. Grounds of challenge are that the
quantum of compensation awarded is
illegal, arbitrary and highly excessive. It is
submitted that the tribunal ought to have
considered the question of contributory
negligence of the claimant as the accident
was caused on the rear portion of the bus. It
is submitted that the driver of the bus was
not negligent and the driving licence and
insurance policy was not produced by the
respondent and therefore the claim petition
was liable to be dismissed on the ground of
non-joinder of the parties.

6. It is further submitted that the
claimant who is the injured has not
produced any documentary evidence for
contending what was his income, the
medical vouchers have not been attested by
any doctor.

7. 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.

8. The principle of contributory
negligence has been discussed time and
136 INDIAN LAW REPORTS ALLAHABAD SERIES
again. A person who either contributes or
author of the accident would be liable for
his contribution to the accident having
taken place.

9. 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
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
5 All. U.P.S.R.T.C., Lucknow Vs. Ashok Kumar Sharma
137
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.

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."

emphasis added

10. 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 interse 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
138 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
5 All. U.P.S.R.T.C., Lucknow Vs. Ashok Kumar Sharma
139
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

11. 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.

12. The tribunal has very categorically
come to the conclusion that the driver of
bus of the roadways was driving the bus
rashly and negligently. The U.P.S.R.T.C in
its reply before the tribunal contended that
no such accident had taken place and in the
alternative that the scooter dashed the bus
from behind. The evidence of D.W.-2 and
the scootrist namely the claimant have been
elaborately discussed by tribunal. The
finding of facts as far as negligence are
concerned cannot be interfered with.

13. The impact was such that the
claimant sustained 75% of disability. This
takes this Court to the compensation. The
compensation awarded cannot be said to be
on the higher side. The tribunal has not
granted any amount under the head of
future loss of income. The quantum rather
is on the lower side. As Sri Vidya Kant
Shukla, learned counsel appeared for the
respondent but there is no cross objection
raised, hence, there is no question of
140 INDIAN LAW REPORTS ALLAHABAD SERIES
interference with the quantum which has
been awarded.

14. Rate of interest in the year 2003
was 9% which also does not require any
interference.

15.
Accordingly,
this
appeal
is
dismissed.

16. Record be sent back to the
tribunal. Stay, if any, stands vacated.

17. The amount kept in fixed deposit
be given to the claimant as 20 years has
elapsed from the date of filing of this
appeal.

18. This Court is thankful to both the
learned counsels for ably assisting this
Court.
----------
(2023) 5 ILRA 140
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 217 of 2018

Ram Shabad Yadav ...Appellant
Versus
Harilal & Ors. ...Respondents

Counsel for the Appellant:
Sri Satyendra Pandey

Counsel for the Respondents:
Sri Prem Chand Srivastava, Sri Rahul Sahai,
Sri Aditya Singh Parihar

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-deceased died of injuries
sustained in accident by the rash and
negligent driving of the driver of the
truck-Ld.
Tribunal
found
that
the
insurance policy terms were breached,
therefore, the insurance company was
absolved of its liability on this footing on
the ground that the driver had no valid
driving licence and the liability to pay the
compensation is on the owner-the burden
lies on the owner of proving foundational
facts
but
failed
to
establish
the
foundational facts because the owner did
not appear in the witness box to prove
that the driving licence was produced
before him and he was satisfied with its
genuineness at the time of the driver's
appointment-Insurance company can be
held liable only when foundational facts
are pleaded and proved by the owner of
the offending vehicle by the owner of the
truck-If the insurance company is able to
prove that the owner was aware or had
notice that the licence was fake or invalid
and still permitted the person to drive the
insurance company would no longer
continue
to
be
liable-Hence,
no
interference requires in the impugned
award.(Para 1 to 29)

B. Form 54 being a certified copy of a
public
document
namely
the
state
register of driving licencse, need not to
be proved by examining a witness. Once
a certified copy of the entries made in
the register maintained under section
26(1) read with Rule 23 is issued in
form-54 it is admissible in evidence
under section 77 of the Evidence Act and
no further proof of form 54 by oral
evidence by examining witnesses is
required. (Para 27)

The appeal is dismissed. (E-6)

List of Cases cited:

1. United India Ins. Co. Ltd. Vs Lehru & ors.
(2003) 0 SC 251

2. NICL Vs Swaran Singh & ors. (2004) AIR SC
1531

3. Pepsu Road Trans. Corp. Vs National Ins. Co.
(2013) 10 SCC 217