# United India Insurance Co. Ltd v. Smt. Shashi Prabha & Ors

- **Citation:** (2022) 3 ILRA 838
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022
- **Case number:** First Appeal From Order No.155 of 2022
- **Bench:** Dr. Kaushal Jayendra Thaker, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/united-india-insurance-co-ltd-v-smt-shashi-prabha-ors-48246
- **Pages:** 8

## Headnote

Civil Law - Motor Vehicle Act, 1988 -
Quantum of compensation- the principle of
contributory - burden of proving reasonable
care on defendants - Income taxed amount was
considered by court u/s 194A (3) (ix) of the
Income Tax Act, 1961 - Insurance company to
deposit amount at 7% interest.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

838 INDIAN LAW REPORTS ALLAHABAD SERIES
from any land under Section 209 is not
instituted by a bhumidhar or asami, or a decree
for eviction obtained in any such suit is not
executed within the period of limitation
provided for institution of such suit or the
execution of such decree, as the case may be,
the person taking or retaining possession shall-

(a) where the land forms pail of the
holding of a bhumidhar with transferable
rights, become a bhumidhar with a transferable
rights of such land and the right, title and
interest of an asami, if any, in such land shall be
extinguished;

(b) where the land forms part of the
holding of a bhumidhar with non-transferable
rights, become a bhumidhar with nontransferable rights I and the right, title and
interest of an asami, if any, in such land shall be
I extinguished;

(c) where the land forms part of the
holding of an asami on behalf of the Gaon
Sabha, become an asami of the holding from
year to year.]

[Provided that the consequences
mentioned in Clauses (a) to (c) shall not ensue
in respect of any land held by a bhumidhar or
asami belonging to a Scheduled Tribe.]"

22. If Sections 209 and 210 of the
U.P.Z.A. & L.R. Act are read together, it
would be found that if a person has retained
possession of the land otherwise than in
accordance with the provisions of law without
consent of the owner of the land (bhumidhar,
sirdar or asami) or the Gram Sabha as the case
may be, he can be ejected on a suit filed under
Section 209 of U.P.Z.A.&L.R. Act. If,
however, the suit is not filed under Section 209
of U.P.Z.A.&L.R. Act or a decree obtained in
any such suit is not executed before limitation
or execution of the decree, the person taking or
retaining the possession without the consent of
the tenure holder or the Gram Sabha would
acquire the right, title and interest of an asami
and the rights of the tenure holder would get
extinguished. The person in possession
becomes asami by virtue of operation of law
and the proceedings under Section 229-B of
U.P.Z.A. & L.R. Act would not be required to
be filed by him.

23. Thus, this Court finds that when the
entries in khatauni have not been found to be
fictitious or made fraudulently by two
authorities below and the petitioner's name was
recorded in Class-IX of khatauni from 13711391 Faslis, it was the duty of the prescribed
authority to decide the validity of entry by
allowing the petitioner to lead evidence.

24. In view thereof, the present writ
petition is allowed and the impugned orders
dated 8.2.1993 and 24.6.1994 passed by the
prescribe authority and the appellate authority
are hereby quashed. The case is remanded
back to the prescribed authority to decide the
case
afresh
in
accordance
with
law
expeditiously, preferably, within a period of six
months from today. Petitioner should appear
before the prescribed authority on 4.4.2022
along with this order.
----------
(2022)03ILR A838
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2022

BEFORE

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

First Appeal From Order No.155 of 2022

United India Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Shashi Prabha & Ors. ...Respondents

Counsel for the Appellant:
Sri Saurabh Srivastava
3 All. United India Insurance Co. Ltd. Vs. Smt. Shashi Prabha & Ors.
839
Counsel for the Respondents:
Sri Sunil Kumar, Sri Amar Chandra

Civil Law - Motor Vehicle Act, 1988 -
Quantum of compensation- the principle of
contributory - burden of proving reasonable
care on defendants - Income taxed amount was
considered by court u/s 194A (3) (ix) of the
Income Tax Act, 1961 - Insurance company to
deposit amount at 7% interest.

Appeal partly allowed. (E-9)

List of Cases cited:
1. Bajaj Allianz General Insurance Co.Ltd. Vs
Smt. Renu Singh & ors. First Appeal From Order
No. 1818 of 2012
2. Rylands Vs Fletcher, (1868) 3 HL (LR) 330

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

4. T.O. Anthony Vs Karvarnan & ors. [2008 (3)
SCC 748]

5. Challa Bharathamma & Nanjappan

6. Khenyei Vs New India Assurance Company
Limited & ors., 2015 Law Suit (SC) 469

7. Malarvizhi & ors. Vs United India Insurance
Co. Ltd. & anr., 2020 (4) SCC 228

8. United India Insurance Co. Ltd. Vs Indiro0
Devi & ors. 2018 (7) SCC 715

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

10. New India Assurance Company Vs Urmila
Shukla MANU/SCOR/24098/2021

11. Kirti & ors. Vs Oriental Insurance Co. ltd
2021(1) TAC 1

12. Vimal Kanwar & ors. Versus Kishore Dan &
ors. ( 2013) 7 SCC 476

13. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co. Ltd., reported in 2007(2) GLH 291
14. Smt. Sudesna & ors. Vs Hari Singh & anr. :
Review Application No.1 of 2020 in First Appeal
From Order No.23 of 2001

15. Tej Kumari Sharma Vs Chola Mandlam M.S.
General Insurance Co. Ltd. First Appeal From
Order No.2871 of 2016
16.

16. A.Vs Padma Vs Venugopal, Reported in 2012
(1) GLH (SC), 442
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Vivek Varma, J.)

1. Heard Sri Saurabh Srivastava,
learned counsel for the appellant and Sri
Amar Chandra, learned counsel for the
respondent-Claimants. This appeal mainly
relates to compensation and therefore the
owner, driver of the tempo and car owner
and driver will not be concerned and
therefore by consent of both the learned
counsels we propose to dispose of this
appeal as it relates to submission on
negligence and only quantum.

2. This appeal, at the behest of the
appellant-Insurance Company challenges
the award dated 04.10.2001 passed by
Motor
Accident
Claims
Tribunal,
Shahjahanpur, (hereinafter referred to as
'Tribunal') in M.A.C.P. No. 254 of 2018.

3. Brief facts as culled out from the
record are that on 14.05.2018 at about 8:00
p.m Indresh Kumar Singh was traveling in
a tempo bearing no. U.P-32 CN-9011, at
the same time driver of a car coming from
opposite side bearing no. U.P.-32 HN-2292
driving his car negligently and rashly hits
the tempo in which Indresh Kumar Singh
was traveling and as a result of which
Indresh Kumar Singh fell on the road and
driver of the car drove the wheel of the car
840 INDIAN LAW REPORTS ALLAHABAD SERIES
on his head and the deceased sustained
grievous injuries . Injured Indresh Kumar
Singh was taken to the Trauma Centre by
the police where he was declared dead by
the doctors.

4. The deceased was 41 years and 6
months of age at the time of accident. He
was working as a Sub-Inspector in Police
department and was earning Rs. 48, 159/-
p.m. He was survived by his father, widow
and a son. The Tribunal has considered his
income to be Rs. 48,159/-p.m, deducted
1/3rd towards personal expenses of the
deceased, granted multiplier of 14, granted
Rs.40,000/- towards love and affection,
granted Rs. 15,000/- towards loss of
property and granted Rs.15,000/- towards
funeral expenses and ultimately assessed
the
total
compensation
to
be
Rs.
70,81,956/-.

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 principle of contributory
negligence has been discussed time and
again. A person who either contributes or
author of the accident would be liable for
his contribution to the accident having
taken place.

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 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
3 All. United India Insurance Co. Ltd. Vs. Smt. Shashi Prabha & Ors.
841
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.

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

8. 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.
842 INDIAN LAW REPORTS ALLAHABAD SERIES

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
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
3 All. United India Insurance Co. Ltd. Vs. Smt. Shashi Prabha & Ors.
843
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
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

9. The latest decision of the Apex Court
in Khenyei Vs. New India Assurance
Company Limited & Others, 2015 Law
Suit (SC) 469 has laid down one further
aspect about considering the negligence more
particularly
composite/contributory
negligence. The deceased was not the driver
of the car or of the tempo. P.W.-1 is not the
eye witness but P.W-2 was the eye witness.
In that view of the matter the finding of the
fact as far as negligence is concerned cannot
be found fault with.

10. This takes this Court to the issue
of compensation. The Apex court decision
844 INDIAN LAW REPORTS ALLAHABAD SERIES
in Malarvizhi & Ors Vs. United India
Insurance
Company
Limited
and
Another, 2020 (4) SCC 228 and United
India Insurance Co. Ltd. Vs. Indiro0
Devi & Ors, 2018 (7) SCC 715. and in
The Oriental Insurance Company Ltd.
Vs. Mangey Ram and others, 2019 0
Supreme (All) 1067 and the recent
judgment of the Apex Court in New India
Assurance Company Vs. Urmila Shukla
decided by the Apex Court on 6.8.2021
reported in MANU/SCOR/24098/2021
and
Kirti
and
others
vs
oriental
insurance company ltd reported in
2021(1) TAC 1It could not be culled out
from record that It is submitted by the
counsel for the appellant that tribunal has
committed manifest error in not deducting
the income tax from salary of the deceased
and the amount which was paid as kit
maintenance allowance is Rs. 1200/-, Rs.
700/- towards conveyance. Rs. 2208/-
should have been deducted and amount of
income tax payable on his salary was
supposed to be deducted. It is further
submitted that the amount of pension
received by the widow should also be
deducted. The other prayer that the amount
under other heads would be also deducted
cannot be accepted in view of the judgment
of the Apex Court in case of Vimal
Kanwar and Others Versus Kishore Dan
and others ( 2013) 7 SCC 476. We cannot
accept the submission of the Sri Saurabh
Srivastava,
learned
counsel
for
the
appellant that the amount for personal
expenses requires to be deducted, it cannot
have been deducted and it has been rightly
not deducted by the tribunal. It is no doubt
a accepted position of law that income tax
has to be deducted and certain amounts can
be deducted from the salary of the
deceased. The judgments on which reliance
has been placed by the learned tribunal
cannot be found fault with and are
applicable to the facts of this case except
the fact that income tax has to be deducted
if the deceased was a income tax payer.
The income tax according to the learned
counsel for the appellant was Rs. 10,862/-
p.m. The same is to be multiplied by
multiplier of 14, this would be the amount
which would not be available to the legal
heirs of the deceased.

11. The amount of income tax being
10,862/- was added with 30% as future loss
of income and was calculated in the salary
which has to be deducted. We deduct a
lum-sum of Rs. 2,00,00/- and certain
amounts not to be added.

12. We direct the Insurance Co. to
recalculate the amount and deposit the rest
of the amount with 7% rate of interest. We
reject the oral request of counsel of
respondent to enhance the rate of interest to
12% as the matter is disposed in a
conciliatory manner, we retain the rate on
interest at 7%.

13. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291 and this
High Court in, total amount of interest,
accrued on the principal amount of
compensation is to be apportioned on
financial year to financial year basis and if
the interest payable to claimant for any
financial
year
exceeds
Rs.50,000/-,
insurance company/owner is/are entitled to
deduct appropriate amount under the head
of 'Tax Deducted at Source' as provided u/s
194A (3) (ix) of the Income Tax Act, 1961
and if the amount of interest does not
exceeds Rs.50,000/- in any financial year,
registry of this Tribunal is directed to allow
the claimant to withdraw the amount
3 All. Shiv Shanker & Anr. Vs. Jagat Prakash Sharma & Ors.
845
without producing the certificate from the
concerned Income- Tax Authority. The
aforesaid view has been reiterated by this
High Court in Review Application No.1 of
2020 in First Appeal From Order No.23 of
2001 (Smt. Sudesna and others Vs. Hari
Singh and another) and in First Appeal
From Order No.2871 of 2016 (Tej
Kumari Sharma v. Chola Mandlam M.S.
General Insurance Co. Ltd.) decided on
19.3.2021 while disbursing the amount.

14. On depositing the amount in the
Registry of Tribunal, Registry 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 is not passed because applicants
/claimants are neither illiterate or rustic
villagers.

15.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned,
it
should look into
the
condition of the litigant and the pendency
of the matter and not blindly apply the
judgment of A.V. Padma (supra). The
same is to be applied looking to the facts
of each case.

16. The amount of Rs. 25,000/-
deposited in the Registry of this High
Court be remitted back to the tribunal. The
recalculated amount be deposited within
eight weeks from today.

17. We are thankful to Sri Saurabh
Srivastava,
learned
counsel
for
the
appellant and Sri. Amar Chandra, learned
counsel for the respondents-claimants that
they got this matter disposed of at this
stage only. We disposed of this appeal
without the record of the tribunal as
nothing remains to be done.

18. This appeal is partly allowed.
Awarded decree shall stand modify to the
aforesaid extent. On depositing the amount
the tribunal shall follow the aforesaid
directions.
----------
(2022)03ILR A845
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2022

BEFORE

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

First Appeal From Order No.184 of 1996

Shiv Shanker & Anr. ...Appellants
Versus
Jagat Prakash Sharma & Ors.
 ...Respondents

Counsel for the Appellants
Sri Rakesh Kumar Porwal

Counsel for the Respondents:
Sri A.K. Sinha

Civil Law - Motor Vehicle Act, 1988Section 166-The negligence is proved beyond
reasonable doubt - once the charge sheet, FIR
is filed, involvement of the vehicle is prima facie
proved - trappings of civil procedure should not
be made fully applicable to the proceedings in
the Tribunal - Insurance Company has to
indemnify appellant - payment of Rs. 1,
56,000/- within a period of 12 weeks with 6%
interest.

Appeal was partly allowed. (E-9)

List of Cases cited: