High Court · 2025

Judgment

1. This is a batch of three appeals preferred under Section 173 of the Motor Vehicles Act, 1988 assailing the award passed in favour of the claimants in an accident which occurred on 19.04.2006, where one Rajendra Kumar Mishra sustained injuries, who filed his Claim Petition No.172/2006 which was allowed vide award dated 06.08.2010 granting him a sum of Rs.3,62,178/- along with 6% interest per annum, which is the subject matter of F.A.F.O. No.88 of 2011.

2. In the very same accident, another person, namely, Suresh expired and his legal heirs filed Claim Petition No.150/2006, which also came to be allowed by the Tribunal vide award dated 06.08.2010 granting a compensation of Rs.3,69,000/- along with 6% interest per annum which is the subject matter of F.A.F.O. No.89 of 2011. 2

3. Similarly, in the same very accident, another person namely Mohd. Hanif received injuries and he filed his Claim Petition No.251/2006, which was also allowed by the Tribunal on 06.08.2010 awarding him a sum of Rs.42,002/- along with 6% interest per annum which is the subject matter of F.A.F.O. No.90/2011.

As the grounds raised by the learned counsel for the appellant are almost identical in the three appeals which arise out of a single accident but through three separate claim petitions as mentioned above and as similar question of facts and law are involved, hence, all the three appeals were connected and are being disposed of by this common judgment.

5. In order to appreciate the controversy involved in the aforesaid three appeals, certain brief facts giving rise to the said appeals are being noticed first.

6. For the sake of convenience, the Court is taking the facts from the F.A.F.O. No.88 of 2011. On 19.04.2006, Rajendra Kumar Mishra along with other passengers was travelling in Jeep No.UP-31-E-0002. In the said Jeep inter alia Suresh as well as Mohd. Hanif were also travelling. At around 06:00 PM, when the aforesaid Jeep reached ahead of Mohamdi Town on Gola Road Puwayan Barrier, a Bus bearing No.UHN-2711 which was being driven rashly and negligently and is said to have come and hit the Jeep, due to which the said Jeep overturned, as a consequence, a number of people received injuries and some died.

7. It is on account of the aforesaid accident that Rajendra Kumar Mishra, the respondent No.1 in F.A.F.O. No.88/2011 received injuries; Mohd. Hanif, the respondent No.1 of the connected F.A.F.O. No.90/2011 also received injuries and Suresh expired and upon his death, his legal heirs filed their claim petition, who are the respondents No.1 and 2 in connected 3 F.A.F.O. No.89/2011.

8. The aforesaid claim petitions came to be contested by the owner of the said Bus, namely, Hakim Ali, who denied the accident. However, he further stated that his Bus No.UHN-2711 was duly insured and its driver also had a valid and a subsisting driving licence. He had also stated that the accident took place on account of the negligence of the Jeep driver as the Jeep was overloaded with excess passengers and it was driven rashly and negligently and since the Jeep driver lost control of the vehicle, it overturned. It was also stated that the Bus driver instead helped the injured and the Bus has been unnecessarily involved in the alleged accident.

9. The Jeep was driven by one Mohd. Hanif, who is the respondent No.2 in connected F.A.F.O. No.88/2011. The said Jeep was insured by the United India Insurance Company Ltd., and its driver also had a valid and subsisting licence. It was further stated that the accident occurred on account of the negligence of the Bus driver. In the given circumstances, the owner of the Jeep was not required to pay any compensation rather it will be the Bus driver and owner, who would be responsible to service the award.

10. Upon the exchange of the pleadings, the Tribunal framed four issues. The issue No.1 related to the occurrence of the accident as well as whether the accident was an outcome of rash and negligent driving of the Bus driver or the Jeep and if so, its effect. 4

11. While dealing with the issue No.1, the Tribunal arrived at a conclusion that both the Bus as well as Jeep drivers were negligent and it was a case of contributory negligence where the drivers were responsible for both vehicles. In the case of Rajendra Kumar Mishra, considering the injuries sustained by him which included fracture in his left leg and at different places including his thigh, he was awarded a compensation of Rs.3,62,178/- along with 6% interest per annum and the award was directed to be satisfied by Hakim Ali, the owner of the Bus. The United India Insurance Company Ltd., the insurer of the Jeep was made jointly and severely liable to pay the amount.

12. In case of Mohd. Hanif, the Tribunal awarded a sum of Rs.42,002/- considering the injuries received by him and on account of death of Shri Suresh, a sum of Rs.3,69,000/- was awarded. It is in the aforesaid factual backdrop that the three appeals have been filed by the appellant Insurance Company, who was the insurer of the Jeep.

13. The primary submission of the learned counsel for the appellant - Insurance Company is that it was a specific case that the claimants stated that it was the Bus which was being driven rashly and negligently and it was the Bus, who dashed with the Jeep which resulted in the Jeep being overturned and in such circumstances, the Court has erred in apportioning the liability on the Jeep and as such the entire amount ought to have fastened on the Bus and its insurer and not on the Jeep or its insurer.

14. It is also urged that the amount as awarded is also on higher side, accordingly, the appeals be allowed. 5

15. It will be significant to note that only the learned counsel for Rajendra Kumar Mishra had put in appearance in F.A.F.O. No.88/2011, whereas, none appeared for the claimants of the connected F.A.F.O. No.89/2011 and F.A.F.O. No.90/2011. None had appeared on behalf of the Bus driver and the owner and Shri Waquar Hashim, learned counsel had put in appearance in all the three appeals on behalf of the New India Assurance Company Limited, however, he submits that he has no role to play since the award is primarily against the insurer of the Jeep and not the Bus owner.

16. Noticing the aforesaid situation and also considering that the appeals are of 2011, the Court has proceeded to hear learned counsel appearing for the parties.

17. Having appreciated the submissions of the learned counsel for the appellant, apparently, the issue of negligence and which of the two vehicles are responsible is to be seen.

18. In order to examine this aspect, it will be pertinent to notice that even though a plea of contributory negligence has been raised, it needs to be examined as to what is the actual nature of the claim and how the accident occurred and only then it can be ascertained whether it is a case of contributory negligence or composite negligence.

19. In this regard, it will be relevant to notice that the claimants or the deceased before the Tribunal were not driving any vehicle i.e. either the Bus or the Jeep. The plea of contributory negligence is based on the fact where the drivers of two vehicles contribute in some manner which results in occurrence of an accident and it is in these circumstances it has to be examined as to which of the two drivers was responsible and to what extent and that is to be ascertained for the purposes of apportionment of the 6 liability.

20. In the instant case, it would be found that the two injured, namely, Rajendra Kumar Mishra and Mohd. Hanif were actually the passengers in the Jeep, hence, as far as they are concerned, they were not driving. Accordingly, they could not contribute to the accident and vis-a-vis them it was not a case of contributory negligence, but of composite negligence.

21. Insofar as the legal heirs of Suresh are concerned even in their claim petition, Suresh was not driving any of the vehicles, hence, in his case, it is not a case of contributory negligence but of composite negligence.

22. There is a difference between composite and contributory negligence that is to say, where on account of fault of two other people the third person receives injuries or dies, it becomes a case of composite negligence whereas if on account of the drivers of two vehicles where they may sustain injuries or death then it is a case of contributory negligence. This aspect has been considered by this Court in Radhey Shyam Jawarani v. Walliguru Khan, 2023 SCC OnLine All 4781 relying upon the decision of the Apex Court in Khenyei v. New India Assurance Company Limited and others (2015) 9 SCC 273.

23. Having considered the submissions and from perusal of the material on record including the statement of the witnesses, who stated that the accident was on account of rash and negligent driving of the Bus, however, looking into the averments and the response elicited during cross- 7 examination including the fact that more than six people were travelling in the Jeep and the driver was also rash who could not control the vehicle, it overturned. It is in this context that the Tribunal has noticed the negligence and also while considering an application for interim compensation, the Tribunal had passed an order dated 11.04.2008, wherein a sum of Rs.50,000/-. was released and it was liable to be paid by both the owner of the Bus as well as half to be borne by the appellant United India Insurance Company Ltd. This order was passed in Claim Petition No.150/2006.

24. Be that as it may, the Tribunal came to the conclusion that both the vehicles were responsible and considering the overall impact of evidence available on record, it cannot be said that the Jeep owner was not negligent.

25. In the aforesaid facts and circumstances, the findings arrived at by the Tribunal cannot be faulted. Thus, this Court concurs with the findings of the Tribunal that both the vehicles i.e. Bus as well as Jeep were responsible for the accident and the manner in which the accident has occurred, the apportionment of liability would be half and half on each.

26. As far as the second limb of submissions regarding quantum is concerned and it is in this context if the evidence on record is seen, in the case of Rajendra Kumar Mishra, he sustained several fractures and he has brought on record the necessary documents including X-ray plates as well as vouchers and invoices, medical card which clearly indicates the treatment and the nature of injuries sustained by him. Considering the age and the fact that he was a stamp vendor and he had difficulty in movement, the Tribunal has factored the aforesaid aspect and this Court does not find there is any palpable error which may persuade this Court to interfere with 8 the said findings or reduce the compensation.

27. Similarly, insofar as the Mohd. Hanif is concerned, he has been awarded a sum of Rs.42,002/- only on account of his injuries which are also based on the material evidence on record and does not suffer from any perversity.

28. So far as the compensation in respect of death of Suresh is concerned, learned counsel for the Insurance Company could not deny that the multiplier adopted and the necessary parameters to be noticed while granting compensation is concerned has been followed by the Tribunal which is also based on material evidence on record, hence, it does not require any interference.

29. For the aforesaid reasons, this Court is satisfied that the award dated

06.08.2010 passed in Claim Petition No.172/2006 relating to Rajendra Kumar Mishra, Claim Petition No.150/2006 relating to Suresh (legal heirs of the deceased Suresh) and Claim Petition No.257/2006 relating to Mohd. Hanif are just and proper.

30. Since, as far as the negligence is concerned vis-a-vis it is a case of composite negligence, hence, the claimants can recover the same from either of two tortfeasor i.e. the Insurance Company of the Jeep or the owner of the Bus. Any of the joint tortfeasor after having made good the claim can recover the same from other to the extent of 50% as both the vehicles are found to be responsible equally. Thus, with the aforesaid observations, this Court finds that there is no merit in these appeals i.e. F.A.F.O. No.89 of 2011; F.A.F.O. No.88 of 2011; and F.A.F.O. No.90 of 2011 which are 9 accordingly dismissed. Any amount deposited before this Court by the appellant shall be remitted to the Tribunal to be released in favour of the claimants as per the award and noticing the observations of this Court any shortfall which shall also be made good by the Insurance Company, who shall be entitled to recover the same from the owner of the Bus, who is other tortfeasor as provided by the Apex Court in Khenyei (supra) which has been followed by this Court in Radhey Shyam (supra). The record of Claim Petition No.172/2006 shall be returned to the Tribunal concerned expeditiously. Order Date :- 18.07.2025 Rakesh/- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

As the grounds raised by the learned counsel for the appellant are almost identical in the three appeals which arise out of a single accident but through three separate claim petitions as mentioned above and as similar question of facts and law are involved, hence, all the three appeals were connected and are being disposed of by this common judgment.

5. In order to appreciate the controversy involved in the aforesaid three appeals, certain brief facts giving rise to the said appeals are being noticed first.

6. For the sake of convenience, the Court is taking the facts from the F.A.F.O. No.88 of 2011. On 19.04.2006, Rajendra Kumar Mishra along with other passengers was travelling in Jeep No.UP-31-E-0002. In the said Jeep inter alia Suresh as well as Mohd. Hanif were also travelling. At around 06:00 PM, when the aforesaid Jeep reached ahead of Mohamdi Town on Gola Road Puwayan Barrier, a Bus bearing No.UHN-2711 which was being driven rashly and negligently and is said to have come and hit the Jeep, due to which the said Jeep overturned, as a consequence, a number of people received injuries and some died.

7. It is on account of the aforesaid accident that Rajendra Kumar Mishra, the respondent No.1 in F.A.F.O. No.88/2011 received injuries; Mohd. Hanif, the respondent No.1 of the connected F.A.F.O. No.90/2011 also received injuries and Suresh expired and upon his death, his legal heirs filed their claim petition, who are the respondents No.1 and 2 in connected 3 F.A.F.O. No.89/2011.

8. The aforesaid claim petitions came to be contested by the owner of the said Bus, namely, Hakim Ali, who denied the accident. However, he further stated that his Bus No.UHN-2711 was duly insured and its driver also had a valid and a subsisting driving licence. He had also stated that the accident took place on account of the negligence of the Jeep driver as the Jeep was overloaded with excess passengers and it was driven rashly and negligently and since the Jeep driver lost control of the vehicle, it overturned. It was also stated that the Bus driver instead helped the injured and the Bus has been unnecessarily involved in the alleged accident.

9. The Jeep was driven by one Mohd. Hanif, who is the respondent No.2 in connected F.A.F.O. No.88/2011. The said Jeep was insured by the United India Insurance Company Ltd., and its driver also had a valid and subsisting licence. It was further stated that the accident occurred on account of the negligence of the Bus driver. In the given circumstances, the owner of the Jeep was not required to pay any compensation rather it will be the Bus driver and owner, who would be responsible to service the award.

10. Upon the exchange of the pleadings, the Tribunal framed four issues. The issue No.1 related to the occurrence of the accident as well as whether the accident was an outcome of rash and negligent driving of the Bus driver or the Jeep and if so, its effect. 4

11. While dealing with the issue No.1, the Tribunal arrived at a conclusion that both the Bus as well as Jeep drivers were negligent and it was a case of contributory negligence where the drivers were responsible for both vehicles. In the case of Rajendra Kumar Mishra, considering the injuries sustained by him which included fracture in his left leg and at different places including his thigh, he was awarded a compensation of Rs.3,62,178/- along with 6% interest per annum and the award was directed to be satisfied by Hakim Ali, the owner of the Bus. The United India Insurance Company Ltd., the insurer of the Jeep was made jointly and severely liable to pay the amount.

12. In case of Mohd. Hanif, the Tribunal awarded a sum of Rs.42,002/- considering the injuries received by him and on account of death of Shri Suresh, a sum of Rs.3,69,000/- was awarded. It is in the aforesaid factual backdrop that the three appeals have been filed by the appellant Insurance Company, who was the insurer of the Jeep.

13. The primary submission of the learned counsel for the appellant - Insurance Company is that it was a specific case that the claimants stated that it was the Bus which was being driven rashly and negligently and it was the Bus, who dashed with the Jeep which resulted in the Jeep being overturned and in such circumstances, the Court has erred in apportioning the liability on the Jeep and as such the entire amount ought to have fastened on the Bus and its insurer and not on the Jeep or its insurer.

14. It is also urged that the amount as awarded is also on higher side, accordingly, the appeals be allowed. 5

15. It will be significant to note that only the learned counsel for Rajendra Kumar Mishra had put in appearance in F.A.F.O. No.88/2011, whereas, none appeared for the claimants of the connected F.A.F.O. No.89/2011 and F.A.F.O. No.90/2011. None had appeared on behalf of the Bus driver and the owner and Shri Waquar Hashim, learned counsel had put in appearance in all the three appeals on behalf of the New India Assurance Company Limited, however, he submits that he has no role to play since the award is primarily against the insurer of the Jeep and not the Bus owner.

16. Noticing the aforesaid situation and also considering that the appeals are of 2011, the Court has proceeded to hear learned counsel appearing for the parties.

17. Having appreciated the submissions of the learned counsel for the appellant, apparently, the issue of negligence and which of the two vehicles are responsible is to be seen.

18. In order to examine this aspect, it will be pertinent to notice that even though a plea of contributory negligence has been raised, it needs to be examined as to what is the actual nature of the claim and how the accident occurred and only then it can be ascertained whether it is a case of contributory negligence or composite negligence.

19. In this regard, it will be relevant to notice that the claimants or the deceased before the Tribunal were not driving any vehicle i.e. either the Bus or the Jeep. The plea of contributory negligence is based on the fact where the drivers of two vehicles contribute in some manner which results in occurrence of an accident and it is in these circumstances it has to be examined as to which of the two drivers was responsible and to what extent and that is to be ascertained for the purposes of apportionment of the 6 liability.

20. In the instant case, it would be found that the two injured, namely, Rajendra Kumar Mishra and Mohd. Hanif were actually the passengers in the Jeep, hence, as far as they are concerned, they were not driving. Accordingly, they could not contribute to the accident and vis-a-vis them it was not a case of contributory negligence, but of composite negligence.

21. Insofar as the legal heirs of Suresh are concerned even in their claim petition, Suresh was not driving any of the vehicles, hence, in his case, it is not a case of contributory negligence but of composite negligence.

22. There is a difference between composite and contributory negligence that is to say, where on account of fault of two other people the third person receives injuries or dies, it becomes a case of composite negligence whereas if on account of the drivers of two vehicles where they may sustain injuries or death then it is a case of contributory negligence. This aspect has been considered by this Court in Radhey Shyam Jawarani v. Walliguru Khan, 2023 SCC OnLine All 4781 relying upon the decision of the Apex Court in Khenyei v. New India Assurance Company Limited and others (2015) 9 SCC 273.

23. Having considered the submissions and from perusal of the material on record including the statement of the witnesses, who stated that the accident was on account of rash and negligent driving of the Bus, however, looking into the averments and the response elicited during cross- 7 examination including the fact that more than six people were travelling in the Jeep and the driver was also rash who could not control the vehicle, it overturned. It is in this context that the Tribunal has noticed the negligence and also while considering an application for interim compensation, the Tribunal had passed an order dated 11.04.2008, wherein a sum of Rs.50,000/-. was released and it was liable to be paid by both the owner of the Bus as well as half to be borne by the appellant United India Insurance Company Ltd. This order was passed in Claim Petition No.150/2006.

24. Be that as it may, the Tribunal came to the conclusion that both the vehicles were responsible and considering the overall impact of evidence available on record, it cannot be said that the Jeep owner was not negligent.

25. In the aforesaid facts and circumstances, the findings arrived at by the Tribunal cannot be faulted. Thus, this Court concurs with the findings of the Tribunal that both the vehicles i.e. Bus as well as Jeep were responsible for the accident and the manner in which the accident has occurred, the apportionment of liability would be half and half on each.

26. As far as the second limb of submissions regarding quantum is concerned and it is in this context if the evidence on record is seen, in the case of Rajendra Kumar Mishra, he sustained several fractures and he has brought on record the necessary documents including X-ray plates as well as vouchers and invoices, medical card which clearly indicates the treatment and the nature of injuries sustained by him. Considering the age and the fact that he was a stamp vendor and he had difficulty in movement, the Tribunal has factored the aforesaid aspect and this Court does not find there is any palpable error which may persuade this Court to interfere with 8 the said findings or reduce the compensation.

27. Similarly, insofar as the Mohd. Hanif is concerned, he has been awarded a sum of Rs.42,002/- only on account of his injuries which are also based on the material evidence on record and does not suffer from any perversity.

28. So far as the compensation in respect of death of Suresh is concerned, learned counsel for the Insurance Company could not deny that the multiplier adopted and the necessary parameters to be noticed while granting compensation is concerned has been followed by the Tribunal which is also based on material evidence on record, hence, it does not require any interference.

29. For the aforesaid reasons, this Court is satisfied that the award dated

06.08.2010 passed in Claim Petition No.172/2006 relating to Rajendra Kumar Mishra, Claim Petition No.150/2006 relating to Suresh (legal heirs of the deceased Suresh) and Claim Petition No.257/2006 relating to Mohd. Hanif are just and proper.

30. Since, as far as the negligence is concerned vis-a-vis it is a case of composite negligence, hence, the claimants can recover the same from either of two tortfeasor i.e. the Insurance Company of the Jeep or the owner of the Bus. Any of the joint tortfeasor after having made good the claim can recover the same from other to the extent of 50% as both the vehicles are found to be responsible equally. Thus, with the aforesaid observations, this Court finds that there is no merit in these appeals i.e. F.A.F.O. No.89 of 2011; F.A.F.O. No.88 of 2011; and F.A.F.O. No.90 of 2011 which are 9 accordingly dismissed. Any amount deposited before this Court by the appellant shall be remitted to the Tribunal to be released in favour of the claimants as per the award and noticing the observations of this Court any shortfall which shall also be made good by the Insurance Company, who shall be entitled to recover the same from the owner of the Bus, who is other tortfeasor as provided by the Apex Court in Khenyei (supra) which has been followed by this Court in Radhey Shyam (supra). The record of Claim Petition No.172/2006 shall be returned to the Tribunal concerned expeditiously. Order Date :- 18.07.2025 Rakesh/- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench