# Uttar Pradesh Rajya Sadak Parivahan Nigam v. Smt. Anamika Deo & Ors

- **Citation:** (2022) 3 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-14
- **Case number:** First Appeal From Order No. 1039 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uttar-pradesh-rajya-sadak-parivahan-nigam-v-smt-anamika-deo-ors-48251
- **Pages:** 7

## Headnote

Civil Law - Motor Vehicle Act, 1988 -
Claimants filed documentary evidence - principle
of contributory negligence- computation of the
compensation -retain the interest of 7% from
the date of filing of the claim petition till the
amount is deposited - Tribunal to recalculate the
amount and return the excess amount to the
appellant.

Appeal is partly allowed. (E-9)

List of Cases cited:

## Text

3 All. Uttar Pradesh Rajya Sadak Parivahan Nigam Vs. Smt. Anamika Deo & Ors.
867
Smt. Hansaguti P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, 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 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) while
disbursing the amount.

14. 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 apply the judgment of A.V.
Padma (supra). The same is to be applied
looking to the facts of each case.

15. This Court is thankful to both the
counsels for getting this old matter decided.
----------
(2022)03ILR A867
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2022

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

First Appeal From Order No. 1039 of 2021

Uttar Pradesh Rajya Sadak Parivahan
Nigam ...Appellant
Versus
Smt. Anamika Deo & Ors. ...Respondents

Counsel for the Appellant
Sri Dharmendra Dhar Dubey, Sri Awadhesh
Kumar Saxena

Counsel for the Respondents:

Civil Law - Motor Vehicle Act, 1988 -
Claimants filed documentary evidence - principle
of contributory negligence- computation of the
compensation -retain the interest of 7% from
the date of filing of the claim petition till the
amount is deposited - Tribunal to recalculate the
amount and return the excess amount to the
appellant.

Appeal is partly allowed. (E-9)

List of Cases cited:

1. UPSRTC Vs Km. Mamta & ors., reported in
AIR 2016 SC 948

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

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

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

5. Regional Manager U.P. State Road Transport
Corporation Vs Smt. Nisha Dubey & ors., 2017
(2008) AICC 1056
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Awadhesh Kumar
Saxena, learned counsel for the appellant
and perused the record. None is present for
868 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondents who are deemed to be
served.

2. This appeal, at the behest of Uttar
Pradesh Rajya Sadak Parivahan Nigam,
challenges the judgment and award dated
16.01.2021 passed by Motor Accident
Claims
Tribunal,
Bareilly
(hereinafter
referred to as 'Tribunal') in M.A.C. P. No.
776 of 2014.

3. Claimants are the legal heirs of the
deceased-Brahmdev Gupta. He was driving
his Car from Bareilly to Badaun and when he
reached village-Kheda, Tehshil Aonla, the
bus of U.P.S.R.T.C. bearing No. U.P. 25
AT/1037, which was being driven rashly and
negligently by its driver, dashed with the car
which was being driven by deceasedBrahmdev Gupta, though the deceased tried
to save himself and bring the car to its left
side namely on pathway. Before the deceased
could be taken to the hospital, he breathed his
last. He was 56 years of age, was working in
Jila Yuva Samanwaya Nehru Yuva Kendra
Sangthan, U.P. and Uttrakhand and was
earning Rs.95,960/- per month. The legal
heirs were dependent on him and, therefore,
have claimed sum of Rs.1,80,00,000/- with
interest.

4. The U.P.S.R.T.C. filed its reply
which was one of denial. It has denied the
fact that the bus was being driven against the
Traffic Rules. The driver of bus has
contended that it was the driver of the Maruti
Car namely deceased who came on the
wrong side and dashed with the bus. It is
submitted that the First Information Report
was filed against the driver of said bus but the
facts narrated are far from truth. The driver of
bus has also filed his reply of denial.

5. The claimants examined Shreey
Dev and P.W.1, Sukhchain who was the
eye witness as P.W.2. P.W.3, Dinesh
Yadav and P.W.4, Dev Dhwani Gupta has
also been examined on oath. The claimants
filed documentary evidence so as to bring
home the case that the accident caused the
death of the deceased.

6. The appellant herein examined
D.W.1, Jay Prakash and D.W.2, Sushil
Kumar and D.W. 3, Rajesh Kumar. All of
them
have
supported
the
case
of
U.P.S.R.T.C. The main grounds urged
before this Court by U.P.S.R.T.C. through
its counsel are that the accident occurred
due to negligence of the deceased, the
award is bad in the eye of law as the
amount awarded is arbitrary and on the
higher side. It is submitted by learned
counsel for the appellant that the presence
of the witnesses relied by claimants at place
of incident is highly doubtful and the
evidence of the driver of the bus has been
wrongly disbelieved by the Tribunal.

7. The Apex Court in UPSRTC Vs.
Km. Mamta and others, reported in AIR
2016 SC 948, has held that all the issues
raised in the memo of appeal are required
to be addressed and decided by the first
appellate
court.
While
dealing
with
submission on issue of negligence raised by
the learned counsel for the appellant, it
would be relevant to discuss the principles
for deciding contributory negligence and
for that the principles for considering
negligence will also have to be looked into.

8. 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
3 All. Uttar Pradesh Rajya Sadak Parivahan Nigam Vs. Smt. Anamika Deo & Ors.
869
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.

9. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or is
co author of the accident would be liable
for his contribution to the accident having
taken place and that amount will be
deducted from the compensation payable to
him if he is injured and to legal
representatives if he dies in the accident.

10. 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
870 INDIAN LAW REPORTS ALLAHABAD SERIES
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
being driven with reasonable care or that
there is equal negligence on the part the
other side." emphasis added

11. 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
3 All. Uttar Pradesh Rajya Sadak Parivahan Nigam Vs. Smt. Anamika Deo & Ors.
871
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
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
872 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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

12. 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.

13. The factual scenario goes to show
that the respondent examined D.W.1 to
3 All. Smt. Upasana & Ors. Vs. National Insurance Co. Ltd. & Ors.
873
D.W.3. We have perused the oral testimony
of the driver. The driver of the bus has
categorically mentioned that the deceased
was also driving the car in rash and
negligent manner. The bus was being plied
from Agra to Bareilly. The incident
occurred at about 1.30 in the afternoon
when the bus was at Village Kheda. It is
also the case of the respondent that the
Maruti car was being driven rashly and
negligently and the Maruti car driver hit the
bus on the side of the driver. The driver
was all alone in the car. It was also
mentioned by the driver of the bus that he
had seen the care from about 200-300
meters. Looking to the facts that the bus
which is a bigger vehicle had to be more
cautious. The instantaneous death of the
driver of the car goes to show that the
vehicle driven by the respondent was being
driven in rash and negligent manner but the
driver of the car is also considered to be
negligent. The driver of the Maruti Car
died on the spot. In our case, looking to the
judgments on which reliance was placed by
the learned Trial Judge more particularly
decision in Regional Manager U.P. State
Road Transport Corporation v. Smt.
Nisha Dubey and others, 2017 (2008)
AICC 1056, the charge-sheet which was
laid against the driver of the bus and the
site plan, we hold the driver of the Maruti
Car 25% negligent. The decision in
Khenyei (Supra), will not apply to the
facts of this case.

14. As far as compensation is
concerned, there is no cross objection and
none has appeared for the claimantrespondents though notice has been served
at this juncture. We hold that that the
computation
of
the
amount
is
in
consonance with the judgment of the Apex
Court. We do not disturb the finding of the
Tribunal. However, the finding that if the
U.P.S.R.T.C. does not make payment
within 30 days then only it will be liable for
interest. Such an order could not have been
passed. We retain the interest of 7% from
the date of filing of the claim petition till
the amount is deposited. If the amount has
already been deposited, the same may be
disbursed
to
the
claimants.
On
recalculation, if the amount is on lower
side, the same shall be refunded to
U.P.S.R.T.C.

15. In view of the above, this appeal is
partly allowed. The Tribunal to recalculate
the amount and return the excess amount to
the appellant. Record and proceedings be
sent back to the Tribunal forthwith.
----------
(2022)03ILR A873
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2022

BEFORE

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

First Appeal From Order No.1070 of 2017

Smt. Upasana & Ors. ...Appellants
Versus
National Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Nigamendra Shukla

Counsel for the Respondents:
Sri Om Prakash Mishra

Civil Law - Motor Vehicle Act, 1988 -
Quantum of compensation awarded in question
- Tribunal has not granted any amount towards
future loss of income of the deceased - Registry
is directed to first deduct the amount of deficit
court fees, if any - -Insurance Company shall