# United India Insurance Co. Ltd v. Rajesh Kumar Tripathi & Anr

- **Citation:** (2023) 4 ILRA 1230
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-23
- **Case number:** First Appeal From Order No. 16 of 1995
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/united-india-insurance-co-ltd-v-rajesh-kumar-tripathi-anr-49845
- **Pages:** 5

## Headnote

Act, 1988, S. 165 - Claim for compensation
concerning death arising from the use of a
motor vehicle - The term accident is not
defined under the Motor Vehicles Act -
Incident
occurred
when
a
truck,
overloaded and driven at excessive speed,
came into contact with an electric wire,
resulting in a high voltage surge through
the village, leading to the electrocution of
the claimant's wife - Despite the vehicle
being overloaded, the driver failed to stop
- Held: Court rejected the appellant's
(Insurance
Company)
contention
regarding remoteness of damage and
concluded that the accident was caused
by the negligent use of the vehicle -
Insurance Company was held liable to
compensate the claimant but was granted
the right to recover the amount from the
vehicle owner due to the owner's failure
to produce evidence of the driver's valid
license. (Para 9, 10)

Appeal partly allowed. (E-5)

List of Cases cited:

## Text

1230 INDIAN LAW REPORTS ALLAHABAD SERIES
erroneous on the basis of hyper-technical
view. It is also not the case of the petitioner
that petitioner is ineligible in any manner
for Class-IV post and also this fact is not in
dispute that the petitioner has qualified
written examination as well as physical test
which is necessary requirement for the
selection of a Class-IV employee

13. Therefore, we are of the view that
the C.A.T. ignored the aforesaid aspect and
rejected the original application of the
petitioner by adopting the hyper-technical
view,
regarding
non-reproduction
of
declaration made on the first page of
booklet in Column No.10 of OMR sheet.

14. Therefore, the judgement dated
11.8.2017, passed by the C.A.T. in Original
Application No. 101 of 2016 is quashed
and respondents are directed to conduct the
medical examination of the petitioner and
verify his documents and issue appointment
letter if the petitioner is otherwise eligible.
It is also directed that if all posts have been
filled up despite pendency of litigation,
then
the
Railways
will
create
supernumerary post for the petitioner.

15. Accordingly, the writ petition
stands allowed.

16. The aforesaid exercise is to be
done by the Railways within a period of 3
months from the date of receiving certified
copy of this order.
----------
(2023) 4 ILRA 1230
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
First Appeal From Order No. 16 of 1995

United India Insurance Co. Ltd.
 ...Appellant
Versus
Rajesh Kumar Tripathi & Anr.
 ...Respondents

Counsel for the Appellant:
Sri K.S. Amist

Counsel for the Respondents:
Sri T.P. Srivastava, Sri Ajay Misra, Sri Durga
Shanker Shukla, Sri Mahesh Dwivedi, Sri S.K.
Verma, Sri Ram Singh

Accident - Electrocution - Motor Vehicles
Act, 1988, S. 165 - Claim for compensation
concerning death arising from the use of a
motor vehicle - The term accident is not
defined under the Motor Vehicles Act -
Incident
occurred
when
a
truck,
overloaded and driven at excessive speed,
came into contact with an electric wire,
resulting in a high voltage surge through
the village, leading to the electrocution of
the claimant's wife - Despite the vehicle
being overloaded, the driver failed to stop
- Held: Court rejected the appellant's
(Insurance
Company)
contention
regarding remoteness of damage and
concluded that the accident was caused
by the negligent use of the vehicle -
Insurance Company was held liable to
compensate the claimant but was granted
the right to recover the amount from the
vehicle owner due to the owner's failure
to produce evidence of the driver's valid
license. (Para 9, 10)

Appeal partly allowed. (E-5)

List of Cases cited:

1. Pappu & ors. Vs Vinod Kumar Lamba & ors.
AIR 2018 SC 592

2. Shivaji Dayanu Patil Vs Vasschala Uttam
More, 1991 0 Supreme SC 322

3. Kalim Khan & ors. Vs Fimidabee & ors., 2018
LawSuit (SC) 571
4 All. United Insurance Co. Ltd. Vs. Rajesh Kumar Tripathi & Anr.
1231
4. Kaushnuma Begum Vs. New India Assurance
Co. Ltd., 2001 LawSuit (SC) 6

5. U.P.S.R.T.C. Vs Rajendra Kumar Gupta & ors.,
First Appeal From Order No. 2520 of 2020, dt
25.5.2020

6. Renu Devi & ors. Vs. Gurfan Ahmad & ors.,
2022 LawSuit (All) 2019

7. United India Insurance Co. Ltd. Vs Smt.
Krishnaven & ors., C.M.A. No. 2217 of 2015, dt
5.10.2015

8. St. of J & K & ors. Vs Mir Fathima & ors., MAC
App No. 52 of 2021, dt 22.9.2022

9. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors., First Appeal From Order
No. 1818 of 2012, dt 19.7.2016

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

1. Heard Sri K.S. Amist, learned
counsel for the appellant and Sri Durga
Shanker Shukla, learned counsel for the
respondent.

2. This appeal, at the behest of United
India Insurance Co. Ltd. challenges the
judgment and award dated 15.9.1994
passed by XVI Additional District Judge/
Motor Accident Claims Tribunal, Allahabad
in Claim Petition No. 175 of 1991 whereby
the
learned
Tribunal
has
awarded
Rs.1,72,000/- as compensation with interest
at the rate of 15% per annum with a
direction upon the appellant herein to pay
the above.

3. Brief facts as culled out from the
record are that on the fateful day when the
incident occurred the truck insured with the
appellant was overloaded and was being
driven by its driver on the excessive speed.
The truck dashed with the electric wire which
was there and due to the overloading the wire
broke and sparks were there which touched
the high voltage and spread to the village
whereby the wife of the respondent-claimant
breathed his last due to electrocution. The
driver did not stopped his vehicle though it
was overloaded. The deceased was skilled
labourer earning Rs. 2200/- per month and
was 20 years of age. The claimant filed claim
petition. The Insurance Company filed its
reply but the driver and owner did not file
any reply. The reply of Insurance Company
was one of denial. The Tribunal framed
issues and while dealing with issue No.1 the
Tribunal came to the conclusion that on
4.3.1991 when the truck which was
overloaded and was plying on the road in
rash and negligent manner by its driver, it
came in contact with low voltage electric
wire. The low voltage wire broke and came in
contact with high voltage wire which resulted
into circulation of high voltage in low voltage
wire. The high voltage circulated to the house
of the deceased through low voltage wire and
the deceased came in contact with the same.
P.W.1, Rajesh Kumar Tripahti had seen the
truck being overloaded and it being came in
contact of low voltage electric wires. He was
present at the place of incident. Lot of people
gathered in the village and the driver of the
truck ran away. P.W. 2 also deposed in similar
way. D.W.1, Uttam Sahab Yadav, mentioned
that there was no accident of his vehicle on
the said date and village people stopped him
and feigned ignorance about the wire. He
does not even remember whether the police
has made challan of his vehicle or not and
why he was arrested by the police. All these
facts cumulatively considered by the Court to
come to the conclusion that accident occurred
due to the use of vehicle as defined under
Section 166 of Motor Vehicles Act.

4. Learned counsel for the appellant
has relied on the decision in Pappu and
others Versus Vinod Kumar Lamba and
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
others, reported in AIR 2018 SC 592 so
as to contend that the Insurance Company
is liable to indemnify the owner as the
driver who was driving the vehicle in
question does not have valid driving license
and the vehicle was being plied against the
policy conditions.

5. Learned counsel for respondentclaimants has placed reliance on the
decisions in Shivaji Dayanu Patil vs.
Vasschala Uttam More, 1991 0 Supreme
SC 322, Kalim Khan & Others vs.
Fimidabee & Others, 2018 LawSuit (SC)
571, Kaushnuma Begum vs. New India
Assurance Company Ltd., 2001 LasWuit
(SC) 6, First Appeal From Order No. 2520
of 2020 (U.P. State Road Transport
Corporation vs. Rajendra Kumar Gupta
& Others) decided on 25.5.2012, Renu
Devi and 5 others vs. Gurfan Ahmad and
2 others, 2022 LawSuit (All) 2019,
decision of Madrash High Court in C.M.A.
No. 2217 of 2015 (United India Insurance
Company Limited vs. Smt. Krishnaven
& others) decided on 5.10.2015, and
decision of High Court of Jammu and
Kashmir and Ladakh at Srinagar in
MAC App No. 52 of 2021 (State of J & K
& Others vs. Mir Fathima & Others)
decided on 22.9.2022 so as to rebut the
grounds raised by the Insurance Company.

6. The decision cited by learned
counsel for the respondent-claimants would
have to be perused in the light of the
principle enunciated for negligence and for
remoteness of damages.

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 though
it 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 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
4 All. United Insurance Co. Ltd. Vs. Rajesh Kumar Tripathi & Anr.
1233
part of deceased has to be discharged by
the opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection
where two roads cross each other, it is the
duty of a fast moving vehicle to slow down
and if driver did not slow down at
intersection, but continued to proceed at a
high speed without caring to notice that
another vehicle was crossing, then the
conduct of driver necessarily leads to
conclusion that vehicle was being driven by
him rashly as well as negligently.

18. 10th Schedule appended to Motor
Vehicle Act contain statutory regulations
for driving of motor vehicles which also
form part of every Driving License. Clause6 of such Regulation clearly directs that the
driver of every motor vehicle to slow down
vehicle at every intersection or junction of
roads or at a turning of the road. It is also
provided that driver of the vehicle should
not enter intersection or junction of roads
unless he makes sure that he would not
thereby endanger any other person. Merely,
because driver of the Truck was driving
vehicle on the left side of road would not
absolve him from his responsibility to slow
down vehicle as he approaches intersection
of roads, particularly when he could have
easily seen, that the car over which
deceased was riding, was approaching
intersection.

19. In view of the fast and constantly
increasing volume of traffic, motor vehicles
upon roads may be regarded to some extent
as coming within the principle of liability
defined in Rylands V/s. Fletcher, (1868) 3
HL (LR) 330. From the point of view of
pedestrian, the roads of this country have
been rendered by the use of motor vehicles,
highly dangerous. 'Hit and run' cases
where drivers of motor vehicles who have
caused accidents, are unknown. In fact
such cases are increasing in number. Where
a pedestrian without negligence on his part
is injured or killed by a motorist, whether
negligently or not, he or his legal
representatives, as the case may be, should
be entitled to recover damages if principle
of social justice should have any meaning
at all.
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
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
being driven with reasonable care or that
there is equal negligence on the part the
other side."

emphasis added

9. The accident took place because
of the use of vehicle which is similar to
the cases of Shivaji Dayanua Patil
(Supra) & Renu Devi (Supra). The
provision of Section 165 of Motor
Vehicles Act,1955 does not define the
term accident and, therefore, judgment in
Renu Devi (Supra) pressed into service
would be helpful to the Court. The
principle of res-ipsa loquitor is also
required
to
be
invoked
and
the
submission of learned counsel for the
appellant that there is remoteness of
damage, cannot be accepted.

10. This takes this Court to this
issue of driving license of the driver
being not valid and electricity company
being not made party. Here the decision
in Pappu and others (Supra) will come
to aid of the appellant as it was for the
owner and driver to prove that the vehicle
was being plied by the driver having
valid driving license and only after the
driving license is filed, the Insurance
Company would be under an obligation to
prove otherwise.

11. As far as compensation is
concerned,
it
cannot
be
said
that
compensation awarded is on higher side.
Rather the Tribunal has not considered to
grant any amount under the head of
future loss of income.

12. In view of the above, the appeal
is
partly
allowed
qua
owner. The
Insurance Company would be at liberty to
recover the amount deposited from the
owner of the vehicle as owner has failed
to produce any documentary evidence so
as to show that the driver was having
license to drive the said vehicle.

13. Record and proceedings be sent
back to the Tribunal forthwith. The
amount kept in fixed deposit be disbursed
to the claimants with interest accrued, if
the same has not yet been disbursed.
----------
(2023) 4 ILRA 1234
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.03.2023

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA- I, J.

Application U/S 482. No. 2941 of 2023

Pravin Kumar Singh @ Pravin Kumar &
Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ajeet Kumar Yadav, Sri Ashish Kumar
Gupta

Counsel for the Opposite Parties:
G.A.

Criminal Law- Application under Section
482-quashing
of
proceedings
under
Sections 376, 363, 366, 504, 506 IPC and
Sections 3/4 POCSO Act- applicant and
victim married each other living happilyoffence concerned is not a private dispute-
collective wrong against the society-
power of quashing of criminal proceedings
should be exercised sparingly- quashing of
a case under Section 376 I.P.C. read with
Sections 3/4 POCSO Act on the basis of
compromise entered between parties-
legally,
not
permissible-Application
dismissed.

HELD: