Dinesh Diwakar & others v. D.M. Uttrakhand Parivahan Nigam and another), whereby for the untimely dea

3. I have heard learned counsel for the appellant - Uttarakhand Parivahan Nigam and perused the impugned judgment and the documents submitted with the appeal.

4. The Apex Court in the case of Jiju Kuruvila & Ors. vs. Kunjujamma Mohan & Ors. (2013) 9 SCC 166, held as under:- “20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.

20.6. The post-mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext. A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext. B-2 “scene mahazar” and Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW 3 (independent eyewitness), Ext. A-1 (FIR), Ext. A-4 (charge-sheet) and Ext. B-1 (FI statement) are on record.”

5. The Apex Court in the case of Prabhavati & Ors. vs. Managing Director, Bangalore Metropolitan, Transport Corporation 2025 SCC OnLine SC 455, held as under:- “10. We are unable to agree with the view taken by the High Court on the 25% contributory negligence of the deceased and 75% upon the driver of the bus. We find ourselves to agree with the view taken by the Tribunal on 3 FAFO No. 2758 of 2025 this issue. The Tribunal rightly, after considering the evidence on record and on perusal of the Ex. P3 Spot Mahazar, came to the conclusion that there wasn't any sufficient evidence on record, indicating that the accident occurred due to negligent driving on the part of the deceased, and after considering the oral evidence of P.W.1, held the cause of the accident to be rash and negligent on the part only of the offending vehicle.

11. Thus, in our considered view, the contributory negligence taken by the High Court at 25% of the deceased is erroneous. We advert to the principles laid down in Jiju Kuruvila v. Kunjujamma(supra) where it was held that in the absence of any direct or corroborative evidence on record, it cannot be assumed that the accident occurred due to the rash and negligent driving of both the vehicles. This exposition came to be followed in Kumari Kiran v. Sajjan Singh (2015) 1 SCC 539. In the present case, therefore, on an allegation simpliciter, it cannot be presumed that the accident occurred due to rash and negligent driving of both vehicles, for having driven at high speed.”

6. The Apex Court in the case of Janabai WD/O Dinkarrao Ghorpade & Ors. vs. ICICI Lambord Insurance Co.Ltd. (2022) 10 SCC 512, held as under:-

11. We find that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of Appellant 1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable. (emphasis supplied)

7. The Apex Court in the case of Khenyei vs New India Assurance Co. Ltd. & Ors. (2015) 9 SCC 273, held as under:-

22.1. In the case of composite negligence, the plaintiff/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. 4 FAFO No. 2758 of 2025

22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3. 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 impleaded and the 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.

22.4. 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.

8. Before the Tribunal, the claimants examined the husband of the deceased Dinesh Diwakar as PW-1, whereas the appellant examined the driver of the offending bus Najakat Hussain as DW-1 and conductor Rajendra Prasad as DW-2.

9. PW-1 Dinesh Diwakar deposed that on 12.07.2021 after having darshan of Purnagiri Mata along with family members, he was returning in his friend's Eco Car No.UP-24-AD-5740 to his house then near Lalauri Kheda at about 2:30 a.m., it collided with Uttarakhand Roadways Bus No.UK-07-PA-1478, which was being driven in a rash and negligent manner, which came to the wrong side of the road and collided head on with his Eco Car, due to which his wife Rekha Devi, mother Vimla Devi, son Anmol and Munni Devi along with Eco car driver Arif suffered grievous injuries and his mother Vimla Devi died on the spot, whereas his wife Rekha Devi died during treatment on 17.07.2021. He further deposed that at the time of death, his wife Rekha Devi (deceased) was 27 years old, who did embroidery work from which she was earning about 5 FAFO No. 2758 of 2025 Rs.15,000/- per month. He further deposed that after the accident the offending bus was apprehended on the spot. In cross-examination, this witness deposed that he was sitting behind the driver's adjacent seat of the car, which was being driven in a controlled speed at about 40 kmph. The offending bus had come on the wrong side of the road and the accident occurred head on.

10. The driver of the offending bus Najakat Hussain (DW-1) has deposed that on 12.07.2021, he was driving bus No.UK-07-PA-1478 from Haridwar to Rupadia route cautiously in a controlled speed according to the rules and regulations of the traffic, then the accident occurred between 2:00 - 2:30 a.m. at Lalauri Kheda near Pilibhit, due to the rash and negligent driving of the driver of Car No.UP-24-AD-5740, which came from front. He further deposed that on noticing the approaching car, he had driven his bus towards the left onto the kachcha portion of the road; however, the car driver failed to control his car, which collided with his bus. He further deposed that the accident occurred due to the sole negligence of the car driver. In cross-examination, he admitted that at the time of the accident his bus was being driven at a speed of 60 kmph, he was enlarged on bail by the criminal court, a criminal prosecution is going against him, he had not lodged any F.I.R. against the Eco car driver, he had not protested to the police officers regarding F.I.R. registered against him.

11. The conductor of the offending bus Rajendra Prasad (DW-2) has deposed that on 12.07.2021, he was employed as conductor on bus No.UK-07-PA-1478, then the accident occurred with Car No.UP-24-AD- 5740, which was being driven in a rash and negligent manner. He also deposed that the accident occurred due to the sole negligence of the car driver.

12. It is apparent that after investigation, a charge sheet in Criminal Case No.225 of 2021, under Section 279, 338, 304-A I.P.C. has been submitted against the driver of the offending bus Najakat Hussain on which cognizance has been taken by the criminal court. DW-1 has also admitted that he has been enlarged by the criminal court on bail. It is also evident that the driver and conductor of the offending bus have not lodged any F.I.R. against the driver of the Eco car, for his alleged rash and negligent driving. 6 FAFO No. 2758 of 2025

13. It is well settled that only on the basis of site plan, it cannot be inferred that a particular accident occurred due to particular negligence of any driver. The Tribunal is not bound by the evidence adduced in the criminal case and the Tribunal has to decide each case on the basis of evidence adduced before it.

14. In view of the above evidence on record, the Tribunal has concluded that the accident occurred due to composite negligence of the driver of car and the bus. As per the law laid down by the Apex Court in the case of Khenyei (supra),in a case of composite negligence, the claimant can claim compensation from any tortfeasor and the Tribunal is also not required to determine inter-se negligence of the tortfeasors in a case, where both the tortfeasors are not impleaded. Since in this case, the owner, driver and insurer of the car have not been impleaded by the claimants in the claim petition, as such, the tribunal has rightly not determined the extent of composite negligence of the drivers of the two vehicles, involved in the accident.

15. It is further evident that the Tribunal has awarded future prospects @40% whereas, as per Rule 220-A of UP Motor Vehicle Rules,1998, the claimants are entitled future prospects @50% since Rekha Devi(deceased) was below 40 years of age. Further, the tribunal should have deducted 1/4th amount towards personal expenses since there were four dependents, but it has deducted 1/3rd amount, which is erroneous. The tribunal has also not awarded any interest on compensation of Rs.3,26,400/- awarded towards future prospects of the deceased, which is erroneous. Besides that, the Tribunal has also awarded less consortium of only Rs.40,000/- whereas there were four claimants, as such, consortium should have been awarded to all the four claimants. It is apparent that the Tribunal has awarded less amount of compensation to the claimants, which cannot be reduced any further.

16. No other issue was pressed by the learned counsel for the appellant.

17. In view of the aforesaid facts, there is no illegality in the impugned judgment and award dated 14.08.2025 passed by the Tribunal insofar as the issue of accident and negligence is concerned, as such, this appeal has got no merit and is liable to be dismissed at the admission stage.

18. Accordingly, this appeal is dismissed at the admission stage. 7 FAFO No. 2758 of 2025

19. Office is directed to remit back the statutory deposit made by the appellant at the time of filing of the appeal to the concerned Tribunal, forthwith. November 25, 2025 Jitendra (Sandeep Jain,J.)

3. I have heard learned counsel for the appellant - Uttarakhand Parivahan Nigam and perused the impugned judgment and the documents submitted with the appeal.

4. The Apex Court in the case of Jiju Kuruvila & Ors. vs. Kunjujamma Mohan & Ors. (2013) 9 SCC 166, held as under:- “20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.

20.6. The post-mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext. A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext. B-2 “scene mahazar” and Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW 3 (independent eyewitness), Ext. A-1 (FIR), Ext. A-4 (charge-sheet) and Ext. B-1 (FI statement) are on record.”

5. The Apex Court in the case of Prabhavati & Ors. vs. Managing Director, Bangalore Metropolitan, Transport Corporation 2025 SCC OnLine SC 455, held as under:- “10. We are unable to agree with the view taken by the High Court on the 25% contributory negligence of the deceased and 75% upon the driver of the bus. We find ourselves to agree with the view taken by the Tribunal on 3 FAFO No. 2758 of 2025 this issue. The Tribunal rightly, after considering the evidence on record and on perusal of the Ex. P3 Spot Mahazar, came to the conclusion that there wasn't any sufficient evidence on record, indicating that the accident occurred due to negligent driving on the part of the deceased, and after considering the oral evidence of P.W.1, held the cause of the accident to be rash and negligent on the part only of the offending vehicle.

11. Thus, in our considered view, the contributory negligence taken by the High Court at 25% of the deceased is erroneous. We advert to the principles laid down in Jiju Kuruvila v. Kunjujamma(supra) where it was held that in the absence of any direct or corroborative evidence on record, it cannot be assumed that the accident occurred due to the rash and negligent driving of both the vehicles. This exposition came to be followed in Kumari Kiran v. Sajjan Singh (2015) 1 SCC 539. In the present case, therefore, on an allegation simpliciter, it cannot be presumed that the accident occurred due to rash and negligent driving of both vehicles, for having driven at high speed.”

6. The Apex Court in the case of Janabai WD/O Dinkarrao Ghorpade & Ors. vs. ICICI Lambord Insurance Co.Ltd. (2022) 10 SCC 512, held as under:-

11. We find that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of Appellant 1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable. (emphasis supplied)

7. The Apex Court in the case of Khenyei vs New India Assurance Co. Ltd. & Ors. (2015) 9 SCC 273, held as under:-

22.1. In the case of composite negligence, the plaintiff/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. 4 FAFO No. 2758 of 2025

22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3. 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 impleaded and the 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.

22.4. 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.

8. Before the Tribunal, the claimants examined the husband of the deceased Dinesh Diwakar as PW-1, whereas the appellant examined the driver of the offending bus Najakat Hussain as DW-1 and conductor Rajendra Prasad as DW-2.

9. PW-1 Dinesh Diwakar deposed that on 12.07.2021 after having darshan of Purnagiri Mata along with family members, he was returning in his friend's Eco Car No.UP-24-AD-5740 to his house then near Lalauri Kheda at about 2:30 a.m., it collided with Uttarakhand Roadways Bus No.UK-07-PA-1478, which was being driven in a rash and negligent manner, which came to the wrong side of the road and collided head on with his Eco Car, due to which his wife Rekha Devi, mother Vimla Devi, son Anmol and Munni Devi along with Eco car driver Arif suffered grievous injuries and his mother Vimla Devi died on the spot, whereas his wife Rekha Devi died during treatment on 17.07.2021. He further deposed that at the time of death, his wife Rekha Devi (deceased) was 27 years old, who did embroidery work from which she was earning about 5 FAFO No. 2758 of 2025 Rs.15,000/- per month. He further deposed that after the accident the offending bus was apprehended on the spot. In cross-examination, this witness deposed that he was sitting behind the driver's adjacent seat of the car, which was being driven in a controlled speed at about 40 kmph. The offending bus had come on the wrong side of the road and the accident occurred head on.

10. The driver of the offending bus Najakat Hussain (DW-1) has deposed that on 12.07.2021, he was driving bus No.UK-07-PA-1478 from Haridwar to Rupadia route cautiously in a controlled speed according to the rules and regulations of the traffic, then the accident occurred between 2:00 - 2:30 a.m. at Lalauri Kheda near Pilibhit, due to the rash and negligent driving of the driver of Car No.UP-24-AD-5740, which came from front. He further deposed that on noticing the approaching car, he had driven his bus towards the left onto the kachcha portion of the road; however, the car driver failed to control his car, which collided with his bus. He further deposed that the accident occurred due to the sole negligence of the car driver. In cross-examination, he admitted that at the time of the accident his bus was being driven at a speed of 60 kmph, he was enlarged on bail by the criminal court, a criminal prosecution is going against him, he had not lodged any F.I.R. against the Eco car driver, he had not protested to the police officers regarding F.I.R. registered against him.

11. The conductor of the offending bus Rajendra Prasad (DW-2) has deposed that on 12.07.2021, he was employed as conductor on bus No.UK-07-PA-1478, then the accident occurred with Car No.UP-24-AD- 5740, which was being driven in a rash and negligent manner. He also deposed that the accident occurred due to the sole negligence of the car driver.

12. It is apparent that after investigation, a charge sheet in Criminal Case No.225 of 2021, under Section 279, 338, 304-A I.P.C. has been submitted against the driver of the offending bus Najakat Hussain on which cognizance has been taken by the criminal court. DW-1 has also admitted that he has been enlarged by the criminal court on bail. It is also evident that the driver and conductor of the offending bus have not lodged any F.I.R. against the driver of the Eco car, for his alleged rash and negligent driving. 6 FAFO No. 2758 of 2025

13. It is well settled that only on the basis of site plan, it cannot be inferred that a particular accident occurred due to particular negligence of any driver. The Tribunal is not bound by the evidence adduced in the criminal case and the Tribunal has to decide each case on the basis of evidence adduced before it.

14. In view of the above evidence on record, the Tribunal has concluded that the accident occurred due to composite negligence of the driver of car and the bus. As per the law laid down by the Apex Court in the case of Khenyei (supra),in a case of composite negligence, the claimant can claim compensation from any tortfeasor and the Tribunal is also not required to determine inter-se negligence of the tortfeasors in a case, where both the tortfeasors are not impleaded. Since in this case, the owner, driver and insurer of the car have not been impleaded by the claimants in the claim petition, as such, the tribunal has rightly not determined the extent of composite negligence of the drivers of the two vehicles, involved in the accident.

15. It is further evident that the Tribunal has awarded future prospects @40% whereas, as per Rule 220-A of UP Motor Vehicle Rules,1998, the claimants are entitled future prospects @50% since Rekha Devi(deceased) was below 40 years of age. Further, the tribunal should have deducted 1/4th amount towards personal expenses since there were four dependents, but it has deducted 1/3rd amount, which is erroneous. The tribunal has also not awarded any interest on compensation of Rs.3,26,400/- awarded towards future prospects of the deceased, which is erroneous. Besides that, the Tribunal has also awarded less consortium of only Rs.40,000/- whereas there were four claimants, as such, consortium should have been awarded to all the four claimants. It is apparent that the Tribunal has awarded less amount of compensation to the claimants, which cannot be reduced any further.

16. No other issue was pressed by the learned counsel for the appellant.

17. In view of the aforesaid facts, there is no illegality in the impugned judgment and award dated 14.08.2025 passed by the Tribunal insofar as the issue of accident and negligence is concerned, as such, this appeal has got no merit and is liable to be dismissed at the admission stage.

18. Accordingly, this appeal is dismissed at the admission stage. 7 FAFO No. 2758 of 2025

19. Office is directed to remit back the statutory deposit made by the appellant at the time of filing of the appeal to the concerned Tribunal, forthwith. November 25, 2025 Jitendra (Sandeep Jain,J.)