The Oriental Insurance Company. Ltd., Lucknow Thru. Manager v. Prem Chandra Mishra & Anr.

after hearing the parties and looking into the pleadings, framed the following issues: "1. क्या मृतक दि(cid:10)नाँक 15.10.17 को समय 6.35 ए एम दि(cid:16)शाखा इन्डस्ट्रीज के पास रायबरेली रोड थाना बछरा(cid:16)ां जिजला रायबरेली पहुँचा ट्रक नंबर-यू०पी०- 32-डी. एन. 3094 के चालक ने अपने (cid:16)ाहन को तेजी (cid:16) लापर(cid:16)ाही पू(cid:16)*क चलाते हुए मोटरसाइदिकल में पीछे से टक्कर मार (cid:10)ी जिजससे उसे गम्भीर चोटें आयी और मौके पर ही उसकी मृत्यु हो गयी ? 2. क्या (cid:10)ुर्घ*टना की तितथिथ पर उक्त (cid:16)ाहन ट्रक नंबर -यू०पी०-32- डी एन 3094 के चालक के पास (cid:16)ैध ए(cid:16)ं प्रभा(cid:16)ी ड्राइविं(cid:16)ग लाइसेंस था ? 3 FAFO No. - 209 of 2024

3. क्या प्रश्नगत (cid:16)ाहन प्रतित(cid:16)ा(cid:10)ी संख्या-3 ओरिरयन्टल इंश्योरेंस कम्पनी लिलदिमटेड से बीदिमत था तथा प्रश्नगत (cid:16)ाहन बीमा की शतD के अधीन चालिलत था ?

4. क्या याची अन्य कोई प्रतितकर पाने के अतिधकारी है? यदि(cid:10) हाँ तो दिकतना और दिकससे ?

5. क्या प्रश्नगत (cid:16)ाहन (cid:10)ुर्घ*टना में कार संख्या-यू०पी० 32 एच.टी. 1878 के चालक की योग(cid:10)ायी उपेक्षा है?

6. क्या प्रश्नगत यातिचका में आ(cid:16)श्यक पक्षकार के असंयोजन का (cid:10)ोष है ? 7. (cid:16)ा(cid:10) दिबन्(cid:10)ु संख्या-1 लिलदिपकीय त्रुदिट से कार के स्थान पर मोटरसाइदिकल का उल्लेख करते हुए दि(cid:16)रतिचत हो गया है। अतः उभय पक्ष के अथिभ(cid:16)चनों (cid:16) साक्ष्यों के आधार पर (cid:16)ा(cid:10) दिबन्(cid:10)ु संख्या-1 दिनम्न(cid:16)त संशोतिधत दिकया जाता है- (cid:16)ा(cid:10) दिबन्(cid:10)ु सख्या-1-क्या मृतका (cid:10)ीदिपका दिमश्रा दि(cid:10)व्य कुमार दिमश्रा के साथ दि(cid:10)नाँक 15.10.17 को परिर(cid:16)ार सदिहत कार संख्या-यू० पी० 32 एच.टी. 1878 से दि(cid:16)न्ध्याचल (cid:10)े(cid:16)ी (cid:10)श*न हेतु जा रही थी। समय 6.35 ए एम पर दि(cid:16)शाखा इन्डस्ट्रीज के पास रायबरेली रोड थाना बछरा(cid:16)ां जिजला रायबरेली पहुँचा तभी ट्रक नंबर-यू०पी०-32-डी. एन. 3094 के चालक ने अपने (cid:16)ाहन को तेजी (cid:16) लापर(cid:16)ाही पू(cid:16)*क चलाते हुए कार में सामने से टक्कर मार (cid:10)ी जिजससे (cid:10)ीदिपका दिमश्रा सभी लोगों को गम्भीर चोटें आयी और मौके पर ही (cid:10)ीदिपका दिमश्रा की मृत्यु हो गयी ?"

5. On the basis of the evidence led by the parties and the documents filed before the Tribunal and the arguments advanced by learned counsel for the parties, the Tribunal came to the conclusion that the deceased had died on 15.10.2017 because of the accident which occurred at about 06.35 a.m. by a truck bearing no.UP-32 DN 3094 which was being driven by its driver in a rash and negligent manner. The Tribunal held that the driver of the offending vehicle had a valid driving license and the vehicle was duly insured by the Insurance Company (appellant herein) and was following all the terms and conditions as per the Insurance Policy.

6. The Tribunal looking into the age and earnings along with other parameters awarded a compensation of Rs.5,00,000/- along with interest at the rate of 7% p.a. vide its judgment and award dated 24.04.2024. This judgment and award has been assailed by the appellant Insurance Company by means of the instant First Appeal From Order. Submission of learned counsel for the appellant-Insurance Company

7. Learned counsel for the appellant-Insurance company submits that the deceased-Deepika Misra was aged about 23 years. 4 FAFO No. - 209 of 2024 The claimant was not dependent on her. The claim petition ought not to have been admitted on this ground only.

8. He further submits that the deceased was daughter of the claimant and he was not dependent on her income as he himself was in State Government service, serving as an Inspector in the Police department and was earning Rs.70,000/- p.m. The mother of the deceased - Deepika Mishra was already died in the year

9. To buttress his arguments, learned counsel for the appellant has placed reliance on the judgment of Hon'ble Supreme Court in the matter of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 SCC 680. He has further placed reliance on the judgment of Hon'ble Supreme Court in the matter of Smt. Sarla Verma & others v. Delhi Transport Corporation & others; reported in (2009) 6 SCC 121.

10. Further he placed reliance on the judgment of Hon'ble Supreme Court in the matter of The New India Assurance Company Limited Vs. Anand Pal & others rendered in SLP (Civil) No. 7805 of 2022, wherein it has been clearly observed by the Hon'ble Supreme Court that the father is likely to have his own income and will not be considered as dependent and mother alone will be considered as dependent, however in the present case the mother has already died much before the accident and the father was the earning member and not a dependent. Hence, it cannot be considered as dependent and could not have filed the claim petition.

11. Learned counsel for the appellant further submitts that in the main claim case, where the deceased was driving the car, the Tribunal has attributed 20% as contributory negligence and, hence, same should also be considered in this case. The Tribunal has erred in not deducting the contributary negligence and awarded the entire compensation in favour of the claimant. Submissions of learned counsel for the respondents- claimants 5 FAFO No. - 209 of 2024

12. Dr. Sanjana Mittal, learned counsel for the respondent- claimant submits that the instant appeal has been preferred by the father as the legal representative and not as a dependent.

13. She further submits that the expression “legal dependents” may be read either conjunctively or disjunctively with the term “legal representatives.” Legal representatives are entitled for compensation even though they may or may not dependent on the deceased. As the Motor Vehicle Act is a benevolent legislation, it should be given a liberal interpretation. In law, parents are considered dependents of their children, who are obliged to support them in old age. Even if not dependent at the time of the accident, parents would certainly become financially and emotionally dependent on their children later in life.

14. Learned counsel for the respondent-claimant further submits that the judgments relied upon by learned counsel for the appellant on this issue are distinguishable. In the matter of Sarla Verma (Supra), the entire case was circumscribed around the steps for assessing the deduction of personal and living expenses of the deceased and it has got nothing to do with the claim. She further submits that in the case of Sarla Verma (Supra), the father and the grand father; both have been awarded compensation. Furthermore, the father though was not dependent himself, still he was awarded compensation.

15. Learned counsel for respondents-claimants submits that as far as the case of Anand Pal (supra) is concerned, in that there were elders siblings who were residing separately from the deceased, whereas in the instant matter the deceased was a share householder with the claimant. In the matter of Anand Pal (supra), the issue was with regard to the siblings. Out of eleven claimants, three claimants were held disentitled on the ground that they were residing separately from the deceased and having their own respective and independent families. The said decision is distinguishable on facts and thus, the same is not applicable in the present case as the facts of the case is completely different. 6 FAFO No. - 209 of 2024

16. Dr. Mittal, learned counsel appearing on behalf of respondents-claimants, submits on the issue of contributory negligence that the present case is not a case of contributory negligence as she was not driving the car, at best it can be a case of composite negligence.

17. To buttress her argument she placed reliance on judgment of Hon’ble Supreme Court in the matter of T.O. Anthony v. Karvarnan, reported in (2008) 3 SCC 748, wherein the Court has held that:- "“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 wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer 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 wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer 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 on 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 stand reduced in proportion to his contributory negligence." (emphasis supplied)

18. In support of her case she further placed reliance on one more judgement of Hon’ble Supreme Court in the matter of Khenyei v. New India Assurance Co. Ltd. reported in 2015 ACJ 1441 (SC), wherein, in Para 18 it has been held as under: "18. What emerges from the aforesaid discussion is as follows: In the case of composite negligence, the plaintiff/ (i) claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. In the case of (ii) composite negligence, apportionment of compensation between two tortfeasors 7 FAFO No. - 209 of 2024 vis-à-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 tortfeasors 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 tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceedings. impleaded and (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 tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award." (emphasis supplied) Findings

19. Heard learned counsel for the parties and perused the records.

20. The factum of the accident is not doubted by the parties. The Tribunal after hearing the counsels for the parties and adducing all the evidences and documents available on the records filed by the parties came to the conclusion that the accident occurred between the car and the offending truck due to rash and negligent driving of the offending Truck, which was duly insured by the Insurance Company and the driver of the offending truck had a valid driving license. The Tribunal awarded a compensation of Rs.5,00,000/- along with the interest at the rate of 7% vide its judgment and award dated 24.04.2024.

21. As far as the first argument raised by the learned counsel for the appellant on the point of dependency is concerned, in the present case, though the claimant was himself earning and drawing a salary of Rs. 70,000/- per month while serving as an Inspector in 8 FAFO No. - 209 of 2024 the Police Department, it cannot be said that he was not dependent on his children. On this point of issue, the Hon'ble Supreme Court in the matter of GSRTC, Ahmedabad vs. Ramanbhai Prabatbhai & another reported in 1987 ACJ 561, has categorically held that the term 'legal representative' is not restricted to dependent heirs but includes anyone who manages the deceased's estate or is an heir, especially when the deceased dies unmarried or intestate. In this case the deceased was an unmarried girl aged about 23 years and the claim petition was moved by her father.

22. Further, the Hon'ble Supreme Court in the matter of Manjuri Bera v. Oriental Insurance Company Ltd. and another; reported in 2007 ACJ 1279 (SC), has held that even if there was no dependent, and there is a loss to the estate of a person who is a legal representative but not dependent, can yet be a beneficiary of the estate. The liability under the provisions of Motor Vehicles Act does not cease because there is absence of dependency.

23. The Hon'ble Supreme Court in the matter of National Insurance Co. Ltd. Vs. Birender & others reported in 2020 ACJ 759, has held as under:- "15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessary follow that even the major, married and earning sons of the deceased being legal representative have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only......." (emphasis added)

24. The Hon'ble Supreme Court in the matter of N. Jayasree v. Cholamandalam M/s General Insurance Company Ltd.; reported in 2021 ACJ 2685 has clearly held as under :- "14. The MV Act does not define the term “legal representative”. Generally, “legal representative” means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to 9 FAFO No. - 209 of 2024 receive compensatory benefit vests. A “legal representative” may also include any person who intermeddles with the estate of the deceased. Such person does not necessarily have to be a legal heir. Legal heirs are the persons who are entitled to inherit the surviving estate of the deceased. A legal heir may also be a legal representative. * * *

16. In our view, the term “legal representative” should be given a wider interpretation for the purpose of Chapter XII of the MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, the MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realisation of compensation." (emphasis added)

25. In the matter of Indrawati and another Vs. Ranbir Singh and others reported in 2021 ACJ 2156, the Hon'ble Supreme Court has held that parents of the deceased are considered to be dependent on the children. Even if the parents may not be dependent on their children at the time of accident, they will certainly be dependent, both financially and emotionally at the later stage of their life on their children. It would be unfair and inequitable to deny compensation for the loss of dependency to the parents. The relevant para is extracted here as under :- "12. This court is of the view that the parents of the deceased are considered in law as dependent on their children, considering that the children are bound to support their parents in their old age, when the parents would be unable to maintain themselves and the law imposes a responsibility on the children to maintain their parents. Even if the parents are not dependent on their children at the time of accident, they will certainly be dependent, both financially and emotionally, upon their children at the later stage of their life, as the children were dependent upon their parents in their initial years. It would therefore be unfair as well as inequitable to deny compensation for loss of dependency to a parent, who may not be dependent on 10 FAFO No. - 209 of 2024 his/her child at the time of accident per se but would become dependent at his/her later age." (emphasis added)

26. Apart from all these, this is very obvious - Time turns the wheel of life, those who once stood as stiff pillars, may lean upon the very children they raised, specially in their old ages and twilight years. To deny this bond of dependency on very technical grounds of income or employment, is only to overlook both human reality and legal wisdom.

27. In view of the above and ratio laid down by the Hon'ble Supreme Court, it can be very well said that, claim petition filed by the father of the deceased would be maintainable.

28. As far as the second argument raised by learned counsel for the appellant on the point of contributory negligence is concerned, no awarded compensation can be deducted for contributory negligence, as the Tribunal in the leading case of same accident has already meted out the same and apportioned 20% contributory negligence to the driver of the deceased’s car and 80% contributory negligence to the offending vehicle. Here, the deceased-Deepika Misra, was merely a passenger in the car not a driver and died as a result of the said accident.

29. On this point, after referring to a precedent, the Hon'ble Supreme Court in the matter of Sushma v. Nitin Ganapati Rangole, reported in 2024 SCC OnLine SC 2584, has held in its para 19 that the contributory negligence on the part of a driver of the vehicle involved in the accident cannot be vicariously attached to the passengers so as to reduce the compensation awarded to the passengers or their legal heirs as the case may be. The relevant paras are extracted here as under :- "18. In the case of Union of India v. United India Insurance Co. Ltd., (1997) 8 SCC 683, this Court dealt with the question whether the driver's negligence in any manner vicariously attaches to the passengers of the motor vehicle of which he was the driver, and it was held as below:— “10. There is a well-known principle in the law of torts called the “doctrine of identification” or “imputation”. It is to the effect that the defendant can plead the 11 FAFO No. - 209 of 2024 contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course of employment. But, it has been also held in Mills v. Armstrong [[L.R.] 13 App. Cas. 1, HL] (also called The Bernina case) that that principle is not applicable to a passenger in a vehicle in the sense that the negligence of the driver of the vehicle in which the passenger is travelling, cannot be imputed to the passenger. (Halsbury's Laws of England, 4th Ed., 1984 Vol. 34, p. 74; Ratanlal and Dhirajlal, Law of Torts, 23rd Ed., 1997, p. 511; Ramaswamy Iyer, Law of Torts, 7th Ed., p. 447.) The Bernina case [[L.R.] 13 App. Cas. 1, HL] in which this principle was laid in 1888 related to passengers in a steamship. In that case a member of the crew and a passenger in the ship Bushire were drowned on account of its collision with another ship Bernina. It was held that even if the navigators of the ship Bushire were negligent, the navigators' negligence could not be imputed to the deceased who were travelling in that ship. This principle has been applied, in latter cases, to passengers travelling in a motor vehicle whose driver is found guilty of contributory negligence. In other words, the principle of contributory negligence is confined to the actual negligence of the plaintiff or of his agents. There is no rule that the driver of an omnibus or a coach or a cab or the engine driver of a train, or the captain of a ship on the one hand and the passengers on the other hand are to be “identified” so as to fasten the latter with any liability for the former's contributory negligence. There cannot be a fiction of the passenger sharing a “right of control” of the operation of the vehicle nor is there a fiction that the driver is an agent of the passenger. A passenger is not treated as a backseat driver. (Prosser and Keeton on Torts, 5th Ed., 1984, pp. 521-22.) It is therefore clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved — could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent, — the driver and owner of the bus and, if proved, the Railways — can all be joint tortfeasors.” (emphasis supplied)

19. It is clear from the ratio of the above judgment that the contributory negligence on the part of a driver of the vehicle involved in the accident cannot be vicariously attached to the passengers so as to reduce the compensation awarded to the passengers or their legal heirs as the case may be. " (emphasis added)

30. This is a case where the deceased was not a driver but was a third party who died because of the negligence of two wrongdoers. The Hon’ble Supreme Court in the matter of T.O. Anthony (supra), has categorically held that in such cases each wrongdoer is jointly and severally liable to the injured for payment of entire 12 FAFO No. - 209 of 2024 damage. The victim has a choice to proceed against all or any of the wrongdoer. In such cases, neither the victim nor the Court is responsible to establish the extent of wrongdoing between the wrongdoers by fixing the liability of each wrongdoer separately.

31. As per the guidelines laid down by the Hon'ble Supreme Court T.O. Anthony (supra), it was open for the claimant to have made a claim against the wrongdoer and accordingly the claimant has filed the claim against offending truck.

32. As regards the second contention of the learned counsel for the appellant on the issue of contributory negligence, the negligence of a driver cannot, in any manner, be attributed or assigned to the passengers of the vehicle in motor accident claim cases. Hence, in the present case, it is not open to the appellant to take plea of contributory negligence, as it is clearly evident that the deceased was not driving the car, infact she was merely a passenger, and no negligence can be attributed or assigned to her. It is just a case of composite negligence, and it is always open to the claimant to proceed against any of the wrongdoers responsible for the injuries sustained.

33. In view of the above and ratio laid down in the aforesaid judgments, since the deceased was passenger no liability of contributory negligence can be fastened on the claimant. The argument raised by learned counsel for the appellant is devoid of any merit.

34. Considering the aforesaid, this court does not find any illegality and impropriety in the impugned judgment and award dated 24.04.2024 passed by the Tribunal.

35. Accordingly, being sans merit, the instant First Appeal From Order is dismissed. May 8, 2026 Arjun/- (Prashant Kumar,J.)