# United India Insurance Co. Ltd v. Smt. Usha Rani & Ors

- **Citation:** (2023) 6 ILRA 579
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-06
- **Case number:** First Appeal from Order No. 63 of 1997
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/united-india-insurance-co-ltd-v-smt-usha-rani-ors-50331
- **Pages:** 7

## Headnote

A. Civil Law - Motor Vehicles Act, 1988Section

173-Challenge
to-Award
of
compensation-Negligence-A
person
who
either contributes or author of the accident
would be liable for his contribution to the
accident having taken place-Deceased was
not the author or co-author of accidentAlso not not proved that driving licence
was fake-Deceased was a pillion rider on
the motor-cycle and it was tractor's driver
who was held to be solely negligent for
accident-Rate of interest being higher side,
modified accordingly-Appeal allowed.(Para
10 to 13)

The appeal partly allowed. (E-6)

List of Cases cited:

## Text

6 All. United India Insurance Co. Ltd. Vs. Smt. Usha Rani & Ors.
579
Magistrate having rejected the complaint
under Section 203 of the Cr.P.C. and
whereas such a decision being overturned
by
the
Sessions
Court
in
revision,
reopening
the
complaint
against
the
accused, thus the order of the Sessions
Court was causing prejudice to the
applicants and under such circumstances it
was incumbent upon the Sessions Court to
have heard them. Moreover, on going
through the impugned revisional order it is
not clear as to whether an opportunity of
hearing
was
afforded
to
the
applicants/prospective accused persons or
as to whether the proper service of notice
upon the applicants/prospective accused
was ever effected or not and they have been
properly served, which should have been
explicitly mentioned in the revisional order.

10. As such, this Court is of the view
that the order dated 09.12.2016, allowing
the revision of O.P. No.2, without hearing
the accused applicants, was in the teeth of
the aforesaid legal position, rendering the
impugned orders vulnerable in law.

11. Accordingly, the application is
allowed. The orders dated 9.12.2016,
passed by learned Addl. Sessions Judge,
Court No. 5, Shahjahanpur in Criminal
Revision No. 91 of 2016 and the
summoning order dated 20.7.2017 passed
in Case No. 3659 of 2013 by CJM,
Shahjahanpur under Sections 498-A,304-B
IPC and Section 4 of the D. P. Act are
hereby quashed. Matter is remanded back
to revisional court to pass a fresh order in
accordance with law after hearing the
accused applicants, as expeditiously as
possible, preferably within 3 months from
the date of receipt of this order.

12. Let office intimate the court
concerned of this order forthwith.
----------
(2023) 6 ILRA 579
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2023

BEFORE

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

First Appeal from Order No. 63 of 1997

United India Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Usha Rani & Ors. ...Respondents

Counsel for the Appellant:
Ms. Aarushi Khare, Sri Vinay Kumar Khare (Sr.
Adv.)

Counsel for the Respondents:
Sri Virendra Pal Singh, Sri K. Singh, Sri Prem
Babu Verma, Sri Shyamji Gaur

A. Civil Law - Motor Vehicles Act, 1988Section

173-Challenge
to-Award
of
compensation-Negligence-A
person
who
either contributes or author of the accident
would be liable for his contribution to the
accident having taken place-Deceased was
not the author or co-author of accidentAlso not not proved that driving licence
was fake-Deceased was a pillion rider on
the motor-cycle and it was tractor's driver
who was held to be solely negligent for
accident-Rate of interest being higher side,
modified accordingly-Appeal allowed.(Para
10 to 13)

The appeal partly allowed. (E-6)

List of Cases cited:
1. Bajaj Allianz Gen. Ins. Co. Ltd. Vs Smt Renu
Singh & ors.. FAFO No. 1818 of 2012

2. Rylands Vs Fletcher (1868) 3 HL (LR) 330

3. Jacob Mathew Vs St. of Punj. (2005) 0 ACJ
SC 1840
580 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Khenyei Vs New India Assoc. Co. Ltd & ors.
(2015) LawSuit SC 469

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

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

1. Heard Sri Aarushi Khare, learned
counsel for the for United India Insurance
Company
Ltd.
Despite
several
adjournment,
none
appears
for
the
respondents.

2. This appeal, at the behest of the
United India Insurance Co. Ltd., challenges
the
judgement
and
award
dated
30.08.1996/6.9.1996
passed
by
M.A.C.T/IIIrd-Additional District Judge,
Badaun
(hereinafter
referred
to
as
"Tribunal") in M.A.C.P. No. 55 of 1990.

3. Brief facts as culled out from the
record are that on 01.04.1990 deceased
Lalta Prasad was going to village Pipriya
on a motor-cycle bearing no. U.P.O.
9328 driven by one Dular Singh as a
pillion rider. When Lalta Prasad and
Dular
Singh
reached
near
village
Lakhanpur at about 10:15 p.m then only
a tractor trolley bearing no. U.P.O.8144
going towards Dataganj was driven by
Tejpal rashly and negligently. Dular
Singh blew horn to Tejpal and wanted
way but Tejpal instead of giving way to
Dular Singh and Lalta Prasad without
giving any indication turned the tractor
trolley towards right and was dashed
with the motor-cycle and dragged the
motor-cycle with it as a result of which
Lalta Prasad received grievous injuries
and Dular Singh also received injuries.
Lalta Prasad was taken to the District
Hospital Badaun where Lalta Prasad
succumbed to his injuries.

4. The deceased was 52 years of age
at the time of accident and he was a
Government
servant
working
as
a
Compounder
in
Animal
Husbandary
Department of State Government and was
earning Rs. 1742/-p.m. He was a married
person having a wife and three daughters
and a son. The tribunal has granted a
lumsum amount of Rs. 1,33, 296/-.

5. It is submitted by the learned
counsel for the appellant that respondent
nos. 7 and 8 was guilty of negligence. The
driving licence at the time of accident was
not a valid driving license so as to drive
motor-cycle. The rate of interest granted by
the tribunal is on the higher side.

6. 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.

7. 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.

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
6 All. United India Insurance Co. Ltd. Vs. Smt. Usha Rani & Ors.
581
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. 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,
582 INDIAN LAW REPORTS ALLAHABAD SERIES
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

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 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
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
6 All. United India Insurance Co. Ltd. Vs. Smt. Usha Rani & Ors.
583
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
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
584 INDIAN LAW REPORTS ALLAHABAD SERIES
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

10. 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. In this case the deceased
was not the author or the co-author of the
accident.

11. While going through the record it
is very clear that for the evidence on record
the driving licence being fake was not
proved by the appellant herein. The said
ground fails and as it was not proved that
driving licence was fake which is finding of
fact.

12. The deceased was a pillion rider
on the motor-cycle and it was tractor's
driver who was held to be solely negligent
and therefore, the principles of negligence
has been rightly considered by the tribunal,
hence,
there
is
no
question
of
contributory/composite negligence been
invoked as the tractor driver is found to be
solely negligent. It is submitted by the
learned counsel for the appellant that the
rate of interest granted by the tribunal is on
the higher side, no doubt that in the year of
accident, the rate of interest was 9%,
however, going through the judgment of the
tribunal, the tribunal has not granted any
amount under the head of future loss of
income to the young person hence 3% rate
of interest which is on the higher would
meet the end of justice.

13. Hence, appeal is partly allowed to
the said effect. No amount be recovered.
6 All. M/s National Insurance Co. Ltd. Vs. Smt. Wasimunnisha & Ors.
585

14. Record be sent back to the
tribunal.

15. The amount be disbursed to the
claimant as 23 years has elapsed from the
date of filing of this appeal.

16. This Court is thankful to Ms
Aarushi Khare, learned counsel for the for
United India Insurance Company Ltd. for
ably assisting this Court.
----------
(2023) 6 ILRA 585
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2023

BEFORE

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

First Appeal from Order No. 796 of 1993

M/s National Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Wasimunnisha & Ors. ...Respondents

Counsel for the Appellant:
Sri Kuldip Shanker Amist

Counsel for the Respondents:
Sri Ram Jee Saxena, Sri Raghuvansh Chandra,
Sri Pravesh Kumar

A. Civil Law - Motor Vehicles Act, 1988Section 173-enhancement of compensationTribunal awarded a sum of Rs. 2,94,400/- @
of 10% per annum-Tribunal did not grant
any amount under the head of future loss
of income though the deceased was a
salaried person-Added 50% for future
prospects-deducted
1/3
for
personal
expenses of deceased-Multiplier of 18
applied-Total loss of dependency comes to
Rs.
2,59,200/-Amount
under
nonpecuniary heads comes to Rs. 80,000Entitlement
to
compensation
of
Rs.
3,39,200/- made out. (Para 1 to 27)
The appeal is partly allowed. (E-6)

List of Cases cited:
1. Santlal Vs Rajesh (2017) SC 4054

2. NICL Vs Jugal Kishore (1998) AIR SC 719

3. St. of Ori. & ors. Vs Bijaya C. Tripathy (2005)
AIR SC 1431 Fahim Ahmad & ors. Vs United
India Ins. Co. Ltd & ors. (2014) 2 TAC 383 SC

4. UPSRTC thru Reg. Mgr. Vs Smt. Sukha Devi &
ors. FAFO No 1507 of 2003

5. Doodh Nath Chaurasiya Vs Kanhaiya Lal &
ors. FAFO No. 381 of 2017

6. Mukund Dewangan Vs Oriental Ins. Co. Ltd
(2017) AIR SC 3668

7. Sant Lal Vs Rajesh & ors., Etc (2017) 3 RCR
(Civil) 757

8. Smt. Manjuri Bera Vs Oriental Ins. Co. Ltd
(2007) AIR SC 1474

9. NICL, Lucknow Vs Lavkush & anr. FAFO No.
199 of 2017

10. Bajaj Allianz Gen. Ins. Co. Ltd. Vs Smt Renu
Singh & ors. FAFO No. 1818 of 2012

11. Khenyei Vs New India Assoc. Co. Ltd & ors.
(2015) LawSuit SC 469

12. Gobald Motal Services Ltd & anr. Vs R.M.K
Velusamy (1962) SCR 1 929

13. Gen. Mgr, Ker. SRTC Vs Susamma Thomas
(1994) SCC 2 176

14. Sarla Verma & ors. Vs DTC & anr. (2009)
ACJ 1298

15. Smt. Hansagori P. Ladhani Vs The Oriental
Ins. Co. Ltd. (2007) 2 GLH 291

16. Smt. Sudesna & ors. Vs Hari Singh & anr.
FAFO No. 23 of 2001

17. Tej Kumari Sharma Vs Chola Mandlam M.S.
Gen. Ins. Co. Ltd. FAFO No. 2871 of 2016