Allahabad High Court
Branch Manager The Oriental Insurance ... vs Laxmi Narain And Ors. on 17 July, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:43055 Court No. - 8 Case :- FIRST APPEAL FROM ORDER No. - 49 of 2013 Appellant :- Branch Manager The Oriental Insurance Comp. Ltd. Gonda Respondent :- Laxmi Narain And Ors. Counsel for Appellant :- Mukund Tewari Counsel for Respondent :- Umesh Kumar Tiwari,Atul Mishra,Bhaskar Prasad Pandey,Dinesh Kumar,Shailendra Kumar,Shravan Kumar Verma,Sujeet Kumar Balmiki Hon'ble Jaspreet Singh,J.
1. Heard Sri Mukund Tiwari, learned counsel for the appellant. Sri Umesh Kumar Tiwari, learned counsel for the respondent nos. 1 and 2 (claimants) and Sri Dinesh Kumar, learned counsel for the respondent no. 5 Insurance Company whereas none has put in appearance on behalf of respondent nos. 3, 4, 6 and 7.
2. The instant appeal had been preferred under Section 173 of the Motor Vehicles Act, 1988 against the award dated 05.10.2012 passed in C.P. No. 26 of 2010 by MACT/1st ADJ, Gonda whereby in a death case a total sum of Rs. 1, 92, 500/- along with 6% interest has been awarded in favour of claimants-respondent nos. 1 and 2 with a stipulation that in case if the awarded sum is paid within two months then the Insurance Company would have to pay 6% per annum interest failing which the award would carry 12% per annum interest.
3. The Tribunal also recorded a finding that since it was a case of contributory negligence, hence, both the Insurance Company of two vehicles involved in the accident are liable to indemnify the award in two equal half.
4. It will be relevant to briefly take a glance at the facts giving rise to the instant appeal.
5. On 12.12.2009 at around 09:00 PM, Shubham along with his cousin brother Ashish @ Ram Sewak was riding on a scooter, returning home and while they were at Bargari turn Chauraha, the offending vehicle Maruti Car bearing No. UP-43-J-7240 hit the scooter from behind wherein both the persons on the scooter i.e. Ashish and Shubham sustained injuries and the scooter was also badly damaged. Shubham was admitted in the trauma center at Lucknow but later he succumbed to his injuries in the hospital on 15.12.2009. The claimants being the parents of the deceased Shubham instituted a claim petition which was registered as C.P. No. 26 of 2010 wherein they impleaded the owner of the offending car Smt. Manjula who is the respondent no. 3. The driver of the offending car has been impleaded as respondent no. 4 and the said car was insured with HDFC Ergo General Insurance Company Ltd. who has been impleaded as the respondent no. 5. The driver of the scooter namely Ashish @ Ram Sevak has been impleaded as respondent no. 6 and the owner of the said scooter namely Sri Ram Soni has been impleaded as respondent no. 7.
6. The Claim Petition came to be contested by the defendants by filing their written statement. Upon the exchange of pleadings, the Tribunal framed 8 issues. The first issue related to the fact as to whether the accident in question occurred and as a consequence of which Shubham expired. The other issues as to whether the Alto Car involved was duly insured and its driver had a valid license. Similar issues were framed also in context of the Scooter and to what relief the claimants were entitled for.
7. The parties led their respective evidence and the Tribunal while dealing with issue no. 1 found that since the scooter which was moving on a Khadanja Road and thereafter it came on to the main road while the Maruti Car had hit the scooter from behind, hence, it came to the conclusion that both the drivers of the two vehicles were responsible for the accident in equal proportion. It also concluded that the death of Shubham occurred on account of the accident.
8. Thereafter it went on to consider the other issues and found that the Alto Car bearing No. UP-43-J-7240 was duly insured and its driver had a valid and a subsisting license. It also recorded a finding that the scooter bearing No. UP-43-A-9681 was also duly insured with the Oriental Insurance Company and its driver had a valid driving license. The Tribunal then went on to consider the compensation and finally awarded a sum of Rs. 1,92,500/- along with 6% per annum interest to be paid within a period of two months failing which, it would attract 12% per annum interest and the said awarded amount was to be paid by the two Insurance Company i.e. Oriental Insurance Company as well as HDFC Ergo in two equal halves and it is this award dated 05.10.2012 passed in C.P. No. 26 of 2010 which is under challenge before this Court.
9. Sri Mukund Tiwari, learned counsel for the appellant submits that the manner in which the accident had occurred, coupled with the fact that the Tribunal held that the driver of the two vehicles were responsible and apportioned liability of half and half is incorrect for the reason that the deceased was a pillion rider on the scooter bearing No. UP-43-A 9681 driven by Ashish @ Ram Sevak and the said pillion rider could not be treated as a third party and also noticing that the Insurance policy did not cover the risk of a pillion rider and was purely "An Act Policy', hence, no liability could have been fastened on the appellant-insurance company.
10. It is further urged that admittedly the driver of the scooter namely Ashish @ Ram Sevak did not possess a valid and subsisting license as he was only authorized to drive a heavy motor vehicle while he was driving a scooter, thus, for this reason as well, no liability could have been fastened on the appellant-insurance company.
11. The learned counsel for the appellant has very fairly submitted that the quantum as awarded by the Tribunal is not under challenge while it is only the findings in so far as it saddled the award on the appellant-insurance company which is being disputed. It was further urged that the grant of dual rate of interest by the Tribunal is disputed, though, he has fairly submitted that it is a dispute between the two insurance companies and does not involve the claimants, however, because of the ongoing dispute, the appellant has not received its full compensation with updated interest, accordingly, the appeal may be finally heard and decided.
12. As noticed above, none has put in appearance on behalf of the owner/driver of both the vehicles. In the aforesaid backdrop, the Court has heard the learned counsel for the parties and also perused the material on record.
13. The primary submission of learned counsel for the appellant is that a pillion rider on a scooter cannot be treated as a third party for the purposes of 'An Act Policy and admittedly, in the instant case, the scooter bearing No. U.P-43-A-9681 was insured with the appellant but only for the third party insurance. Since no extra premium was paid for enhancing the cover of a pillion rider, hence, the appellant-company is not entitled to pay.
14. Alternatively, it has also been urged that since the driver Ashish @ Ram Sevak was not authorized to drive a scooter as he had the license to drive a heavy motor vehicle, hence, it being a case of violation of policy condition, hence, it being a case of violation of policy condition, hence, the award cannot be made against the appellant.
15. Examining the above plea as raised by the learned counsel for the appellant, it would indicate that the claim petition has been filed by the heirs of deceased Shubham.
16. In order to examine the strength of the submissions advanced by the learned counsel for the appellant, it will have to be seen as to whether it was a case of contributory negligence or composite negligence.
17. This aspect of the matter has been considered by the Apex Court in Khenyei v. New India Assurance Co. Ltd., (2015) 9 SCC 273 which was also followed and considered in detail by this Court in Radhey Shayam Jawarani Vs. Walliguru Khan; 2023 SCC Online All 4781.
18. It will be worthwhile to notice the conclusions recorded by the Apex Court as recorded in Khenyei (supra) and para 22 to 22.4 of the said report is being reproduced hereinafter:-
"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.
22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis--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."
19. From the above, it would be clear that in a case of contributory negligence it has to be established that the drivers of the two offending vehicles involved in the accident were responsible for the accident as a consequence of which they suffered injury or were a victim and then the Tribunal is also required to consider as to what was the proportion of the negligence of the drivers of the two offending vehicles involved in the accident and the liability is apportioned in context thereto but the fact remains that in a case of contributory negligence it has to be established that the drivers of the two vehicle were involved which resulted in the injury or death.
20. In the instant case, Shubham admittedly was not the driver, he was a pillion rider, hence, it is not case of contributory negligence rather on account of the alleged negligence of both the vehicles involved. It was the third party i.e. Shubham who suffered injuries and later he succumbed to his injuries in hospital during his treatment.
21. Thus, it is a clear case of composite negligence and in this context para 22 of Khenyei (supra) as reproduced above gains importance.
22. The learned counsel for the appellant has submitted that even if it is a case of composite negligence but the fact remains that the appellant company is not entitled to honour the award as the insurance policy was not only for third party cover and since admittedly the pillion rider was not covered by the policy, hence, the award cannot be made against the appellant. In his support, he has relied upon a decision of the Apex Court in Oriental Insurance Company Ltd. Vs. Sudhakaran K.V. and Others; 2008 (7) SCC 42.
23. At the outset, it may be noticed that the issue as to whether a pillion rider can be treated as a third party for An Act Policy or whether unless the pillion rider is covered by paying an extra premium, the Insurance Company cannot be made liable, is an issue which has been referred to a Larger Bench of the Apex Court and is engaging the attention of the Apex Court in SLP No. 3433 of 2020 vide order dated 25.08.2022.
24. Be that as it may, the issue involved in the appeal can be seen from a different point of view.
(i) treating it to be a case of composite negligence, which it is and in such circumstances it is always open for the claimants to seek compensation from either of the owner/driver/insurer of the two vehicles involved. Any person disputing the same will have to first pay the compensation and then may recover the same from the other offending vehicle involved in the accident. Even in the above scenario, if it is found that one of the vehicles was not duly insured or its driver did not have a valid license or it fell short of certain documents which would amount to a fundamental breach or violation of the policy condition, even in that case the insurer of such a vehicle can always pay the amount and recover it from the insured.
(ii) The other angle with which the instant case can be seen as to whether it is actually a case of contributory negligence or not and in case if it is found that it was not a case of contributory negligence then who was responsible for the accident and in such circumstances, who would be liable to pay.
25. In the instant case, there are certain redeeming feature that stare at the face of the record:-
(i) It is the admitted case that on 12.12.2009 the deceased Shubham was a pillion rider of Scooter bearing No. UP-43-A-9681 which was being driven by Ashish @ Ram Sevak.
(ii) It is also an admitted fact that the accident occurred on account of an Alto Car hitting the scooter from behind.
(iii) In order to determine the liability and responsibility, it would have to be ascertained as to how the accident occurred and to what extent, the two vehicle drivers were involved.
(iv) In the instant case, the driver/owner of the Alto car namely Narendra or Ms. Manjula, apart from filing the written statement did not enter into the witness box to lead any evidence to prove the plea they had raised in their written statement.
(v) On the contrary, Ashish @ Ram Sevak was examined as P.W. 2. Since he himself was driving the Scooter, hence, he can also be an eye-witness whose statement would be material to consider both the issue of negligence as well as whether it was a case of contributory negligence or not.
26. From the perusal of the statement of P.W. 2 which is on record as Paper No. Ka-56 to KA-59, it would indicate that he clearly stated that the accident occurred on account of negligence of the Alto car driver. A specific question was put to the said witness and in pursuance whereof he clearly denied his negligence and attributed the same to the driver of the Alto Car.
27. Now, in the aforesaid context, if the finding of the Tribunal is noticed, it has recorded that since the Scooter driver was coming from a Khadanja Road on to a main Road and that Ashish @ Ram Sevak suddenly came on to the main Road while the Car driver which was already on the main road hit the Scooter and on this basis the Tribunal concluded that both the vehicles were responsible and that too equally.
28. This Court finds that the inference which has been drawn by the Tribunal is not justified. In order to examine the plea of contributory negligence it has to be seen as to what is the contribution of the driver with the occurrence of the accident.
29. In the instant case, Ashish @ Ram Sevak was examined as P.W. 2 who was the driver of the Scooter involved in the accident who clearly gave a statement that that a Maruti Car had come from behind and hit the Scooter. This was the version which was available before the Tribunal and this very witness was also cross-examined and as noticed above, he clearly denied any suggestion regarding his involvement/negligence rather he clearly stated that it was the negligence of the Alto Car driver.
30. Admittedly, before the Tribunal, there was no other version available as the driver of the Alto Car who could have been the other best person to throw light on the aforesaid aspect was not examined nor he was called for deposition by any of the respondents.
31. This Court finds that upon perusal of the statement of P.W. 2, there is nothing which suggests the involvement/negligence of the Scooter driver rather it appears from the version of P.W. 2 that he was coming from a side road on to the main road and thereafter he was hit from behind by the Alto car.
32. It is also to be noticed that the date and time of the accident is 12.12.2009 which is winter season in this country and at 09:00 PM, it is dark. The possibility of fog can also not be ruled out but the fact remains that even if at all the scooterist was coming on to the main road, at least the headlights and even if the Car was coming from behind, he should have been careful enough to notice that the side road was merging on to the main road and he should have been more careful.
33. However, except for the version of P.W. 2, there was no evidence upon which a satisfaction could have been made that the Scooter driver was also negligent and that too equally. The very fact that an accident had occurred, naturally some kind of negligence can be attributed but in matters relating to the compensation arising out of motor accident, the Tribunal is required to give its finding on the basis of preponderance of probabilities and since the version of Scooter driver was on record and there was no witness or material to contradict the same, this Court is of the clear view that it was not a case of contributory negligence nor it could be said that the Scooter driver contributed 50%/equally to the occurrence of the accident.
34. From the perusal of the award also, the Tribunal has not indicated that what was that evidence upon which it had formed the opinion rather an inference has been drawn on the basis of assumption. Such a finding cannot be sustained.
35. Even otherwise, if the aforesaid plea was taken at the behest of the Car owner and yet the Car owner did not substantiate his plea nor the driver was examined, hence, an adverse inference should have been drawn against the Car owner rather than to hold it as a case of contributory negligence with 50% apportionment on the Scooter driver.
36. Thus, this Court is of the clear view that the findings recorded by the Tribunal relating to contributory negligence and apportioning 50% of the liability on the appellant is not sustainable and is accordingly set aside. This Court finds that the accident occurred on account of rash and negligent driving by the driver of the Alto Car.
37. As far as the second submission of learned counsel for the appellant is considered, it would reveal that the issue of license, though, in light of the findings given above, pales into insignificance but suffice to state that merely on this ground the appellant is not entitled to evade his liability, since Ashish @ Ram Sevak was definitely having a license but for a different category of vehicles than the one he was driving, at best could only permit the Insurance Company to pay and recover from the owner noticing the decision of the Apex Court inBajaj Alliance General Insurance Company Limited Vs. Rambha Devi and Others; 2025 (3) SCC 95.But since this Court has already held that the liability was that of the Alto Car owner, hence, this submission is redundant at this stage.
38. As far as the issue of dual interest is concerned, this aspect has been considered by this Court in Vedanta Ltd. Vs. Shenzen Shandong Nuclear Power Construction Co. Ltd., 2018 SCC Online SC 1922 & Oriental Insurance Company Ltd. Vs. Mohd. Saleem and Others; 2014 (32) LCD 3931and relying upon a decision of the Apex Court, it has been now well settled that grant of dual rate of interest is not permissible that is to say that in case if the amount is deposited within certain time the award would attract 6% per annum interest and in case if it is not deposited within two months then 12% per annum interest. This is penal interest in nature which is not permissible and to that extent the findings of the Tribunal cannot be sustained.
39. For the aforesaid reasons, the appeal of the appellant-Insurance Company is allowed. The award dated 05.12.2012 is modified only to the extent that the amount as awarded i.e. 1,92,500/- shall attract interest of 6% per annum from the date of filing of the petition till the date of its actual payment and that the liability would be on the respondent no. 5 i.e. HDFC Ergo General Insurance Company who shall indemnify the entire award with updated interest and any amount paid by the said Insurance Company to the claimants shall be adjusted. Any amount deposited by the appellants herein shall be returned to the appellant, however, if some amount has been received by the claimants from the present appellants that also shall be adjusted between the appellant and the respondent no. 5.
40. Since the appeal of the appellants is being allowed, accordingly any amount deposited by the appellant before this Court shall be returned to the appellants and in case if any amount which was deposited by the appellant and has been withdrawn under the order of the Court in favour of the claimants then that sum shall also be adjusted by the respondent no. 5 while making the payment to the claimants and to that extent that part shall be reimbursed by the respondent no. 5 to the appellants-Insurance Company.
41. Subject to the aforesaid, the findings on quantum as granted by the Tribunal are affirmed. The appeal is allowed in the aforesaid terms. Costs are made easy. The records of the Tribunal shall be returned forthwith.
Order Date :- 17.7.2025 Asheesh/-