Allahabad High Court
The Oriental Insurance Company Ltd., ... vs Prem Chandra Mishra And Others on 8 May, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 10.04.2026 Delivered on 08.05.2026 HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW FIRST APPEAL FROM ORDER No. - 206 of 2024 The Oriental Insurance Company Ltd., Lucknow Thru. Manager ..Appellant(s) Versus Prem Chandra Mishra and others ..Respondent(s) Counsel for Appellant(s) : Satyajit Banerji, Counsel for Respondent(s) : Sandeep Kumar Agrawal, Shivansh Agrawal Court No. - 20 HON'BLE PRASHANT KUMAR, J.
1. Heard Sri Satyajit Banerji, learned counsel for the appellant-Insurance Company and Dr. Sanjana Mittal, Advocate holding brief of Sri Sandeep Kumar Agrawal, learned counsel appearing on behalf of respondents-claimants.
2. The instant First Appeal From Order has been preferred by the appellant-Insurance Company under Section 173 of the Motor Vehicle Act,1988 against the judgment/award dated 24.04.2024 passed by the Motor Accident Claims Tribunal (South), Lucknow in M.A.C.P. No.845 of 2017 (Prem Chandra Mishra Vs. Smt. Saroj Verma and others).
Factual matrix of the case:
3. The facts of the case are that on 15.10.2017 at about 6:35 a.m., One Smt. Shakti Mishra aged about 28 years was traveling to Vindhyachal for darshan along with her husband Divya Kumar Mishra and other family members, in a car bearing registration No. UP-32 HT 1878. When they reached near Village-Kannawa, Police Station-Bachhrawan, District-Raebareli, a truck bearing registration No. UP-32 DN 3094, coming from the Raebareli side, was being driven in a rash and negligent manner and collided forcefully with the car. As a result of the said accident, the car was completely damaged and all the occupants traveling in the car, including Smt. Shakti Mishra, sustained fatal injuries and died on the spot. At the time of the accident, Smt. Shakti Mishra had completed a nursing course and was actively seeking employment. Thereafter, the claim petition was preferred by the father-in-law of Smt. Shakti Mishra before the Motor Accident Claims Tribunal, Lucknow, seeking compensation.
4. Before the Motor Accident Claims Tribunal, the respondent no.1, owner of the truck filed his written statement stating that the driver of the offending vehicle was an experienced person who had a valid driving license and the accident occurred because of the rash and negligent driving of the deceased-Divya Kumar Mishra (driver of the car) himself. Another written statement was also filed by the respondent no.2-Driver of the offending vehicle who denied the claim filed by the claimant-respondent and stated that the truck had a valid permit and fitness certificate and the same was duly insured by the Insurance Company. The appellant no.3-Insurance Company also filed the written statement rebutting the claim filed by the claimant-respondent. It is stated that the details of the policy number, driving license and other descriptions were not mentioned in the claim petition. The Motor Accident Claims Tribunal after hearing the parties and looking into the pleadings, framed the following issues:
"1. क्या मृतक दिनाँक 15.10.17 को समय 6.35 ए एम विशाखा इन्डस्टीज के पास रायबरेली रोड थाना बछरावा जिला रायबरेली पहुँचा ट्रक नबर-यू०पी०-32-डी. एन. 3094 के चालक ने अपने वाहन को तेजी व लापरवाही पूर्वक चलाते हुए मोटरसाइकिल में पीछे से टक्कर मार दी जिससे उसे गम्भीर चोटें आयी और मौके पर ही उसकी मृत्यु हो गयी ?
2. क्या दुर्घटना की तिथि पर उक्त वाहन ट्रक नंबर-यू०पी०-32- डी एन 3094 के चालक के पास वैध एवं प्रभावी ड्राइविंग लाइसेंस था ?
3. क्या प्रश्नगत वाहन प्रतिवादी संख्या-3 ओरियन्टल इंश्योरेंस कम्पनी लिमिटेड से बीमित था तथा प्रश्नगत वाहन बीमा की शर्तों के अधीन चालित था ?
4. क्या याची अन्य कोई प्रतिकर पाने के अधिकारी है? यदि हाँ तो कितना और किससे ?
5. क्या प्रश्नगत वाहन दुर्घटना में कार संख्या-यू०पी० 32 एच.टी. 1878 के चालक की योगदायी उपेक्षा है 7
6. क्या प्रश्नगत याचिका में आवश्यक पक्षकार के असंयोजन का दोष है?
7. वाद बिन्दु संख्या-1 लिपिकीय त्रुटि से कार के स्थान पर मोटरसाइकिल का उल्लेख करते हुए विरचित हो गया है। अतः उभय पक्ष के अभिवचनों व साक्ष्यों के आधार पर वाद बिन्दु सख्या-1 निम्नवत संशोधित किया जाता है-
वाद बिन्दु सख्या-1-क्या मृतका श्रीमती शक्ति मिश्रा अपने पति दिव्य कुमार मिश्रा के साथ दिनाँक 15.10.17 को परिवार सहित कार संख्या-यू० पी० 32 एच.टी. 1878 से विन्ध्याचल देवी दर्शन हेतु जा रही थी। समय 6.35 ए एम पर विशाखा इन्डस्ट्रीज के पास रायबरेली रोड थाना बछरावां जिला रायबरेली पहुँचा तभी ट्रक नंबर-यू०पी०-32-डी. एन. 3094 के चालक ने अपने वाहन को तेजी व लापरवाही पूर्वक चलाते हुए कार में सामने से टक्कर मार दी जिससे शक्ति मिश्रा सहित सभी लोगों को गम्भीर चोटें आयी और मौके पर ही शक्ति मिश्रा 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. Thereafter, 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 submits that the deceased was the daughter-in-law and hence the claim petition is not maintainable. He further submits that the claimant himself was in State Government service, serving as an Inspector in the Police department and was earning Rs.70,000/- per month and as such he is not dependent. He further submits that the claimant-Father in law of the deceased cannot be treated to be dependent and hence the claim petition moved by the claimant ought to have been rejected.
8. He further submits that the evidence of PW-1 shows that the parents of the deceased have not filed the claim petition though they could be said to be the dependents.
9. He further submits that in the claim case of the husband of the deceased (Divya Kumar Mishra) where the deceased was driving the car, the Tribunal has attributed 20% as contributory negligence and, hence, same should also be consider in this case. The Tribunal has erred in not deducting the contributary negligence and awarded the entire compensation in favour of the claimant.
10. He further submits that it is a case of composite negligence of both the drivers and since the Tribunal has held that both the drivers were responsible and accordingly the compensation ought to have been awarded against both of them proportionately. However, the Tribunal has failed to appreciate and determine the inter se composite negligence of both the drivers. Apart from these, no other point of argument raised by learned counsel for the appellant.
Submission of learned counsel for the respondent-claimant
11. Per contra, Dr. Sanjana Mittal, learned counsel appearing on behalf of respondents-claimants submits that as per Section 15 of Hindu Succession Act any claim of the female deceased in absence of children and husband not being the property inherited from the father shall devolve upon the legal heirs of the husband. To buttress her argument she placed reliance on a judgement of Hon'ble Supreme Court in the matter of Manjuri Bera Vs. Oriental Insurance Company Ltd., reported in (2007) 2 ACJ 1279, wherein it has been held that the amount awarded on the basis of 'no fault liability' incorporated under section 140/163A (now section 164) is a fixed amount and has to considered as part of the estate of the deceased. His legal representative, who is entitled to inherit his estate is also entitled to receive compensation under 'no fault liability' under Motor Vehicle Act. Thus, the compensation awarded under section 163A constitutes estate of the deceased and to be inherited by their legal representative.
12. She further submits that, the deceased had no children, and her husband had also died in the same accident and, therefore, it is to be treated as having predeceased her and as per the provisions of Section 21 of the Hindu Succession Act, the estate of the deceased, Shakti Mishra, including the compensation payable under the no-liability principle, shall devolve upon her father-in-law.
13. She further contended that any legal representative can claim compensation under the provisions of motor vehicle act. She further submitted that the parents of the deceased have not recorded their intention to be a claimants at any stage of trial.
14. 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 but at best it could be a case of composite negligence. As far as the composite negligence is concerned, Dr. Mittal submits that the Composite negligence refers to the negligence on the part of two or more persons i.e., 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. Therefore each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice to proceed against all or any of them.
15. Since, any owner driver of both the vehicles can be sued, it is on the claimant to choose any one of them. She submits that it is not necessary for the Court to determine or the injured to establish the extent of liability of each wrongdoer separately in cases of composite negligence. She further contended that the impleaded joint tortfeasor if he so desires may sue the other joint tortfeasor in independent proceedings after passing of the decree or award. She submits that here the deceased is the rider who died because of the composite negligence of the drivers of the two vehicles. She is entitled to claim and receive compensation from either of the joint tort-feasors.
16. To buttress her argument she placed reliance on judgment of Honble 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)
17. In support of her case she further placed reliance on one more judgement of Honble Supreme Court in the matter of Khenyei v. New India Assurance Co. Ltd., reported in 2015 ACJ 1441 (SC).
Findings
18. I have heard learned counsel for the parties and perused the material on records.
19. It is evident that the factum of the accident is not doubted by the parties. An F.I.R. was lodged and charge sheet was also filed. Thereafter, father-in-law of the deceased, Sri Prem Chandra Mishra in the capacity of legal representative preferred a claim petition under Section 163A of the Motor Vehicle Act,1988 before the Motor Accidents Claim Tribunal, Lucknow.
20. The Tribunal after hearing the counsels for the parties and adducing the evidences led by the parties and documents available on the records filed by the parties came to the conclusion that on 15.10.2017 and at about 06.35 a.m., when the deceased-Smt. Shakti Mishra was going from Lucknow to Vindhyachal for Darshan along with her husband and other family members in a car bearing registration no.UP-32 HT 1878, a truck coming from opposite direction in a very rash and negligent manner dashed into the car, with the result, all the occupants in the car died on the spot. The offending vehicle was a truck bearing registration No.UP-32 DN 3094. At the time of accident, the driver of the offending vehicle had a valid driving license and the offending vehicle was duly insured by the appellant-Insurance Company and was complying all the terms and conditions of the insurance policy.
21. The Tribunal looking into the age of the deceased as well as other parameters awarded a compensation of Rs.5,00,000/- along with interest at the rate of 7% vide its judgment and award dated 24.04.2024, which has been assailed by the appellant-Insurance Company by means of the instant appeal.
22. So far as the argument raised by the counsel for the appellant-Insurance Company on the point of maintainability that the deceased was the daughter-in-law of the claimant and hence the claim petition is not maintainable. Thus, the question to be adjudicated in the present appeal before this Court is whether the father-in-law has the right to seek compensation for the death of his daughter-in-law in a motor vehicle accident claim.
23. Before proceeding further this is apt to delve into the provisions of Section 163A of Motor Vehicle Act,1988 under which the claim was filed by the claimant.
"163A. Special provisions as to payment of compensation on structured formula basis.
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.For the purposes of this sub-section, permanent disability shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
24. On bare reading of the above provision it is clear that the legal heirs or the victim can claim compensation under the provisions section 163A of Motor Vehicle Act and it is also clear that he or she need not to plea or establish that the death or permanent disablement in respect of which the claim has been filed was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. The claimant only has to establish that the accident occurred and the vehicle was involved.
25. The Hon'ble Supreme Court in the matter of Manjuri Bera v. Oriental Insurance Co. Ltd., reported in (2007) 10 SCC 643, has settled a law that the fixed amount of compensation awarded Motor Vehicle Act has to be considered as an estate of the deceased and the same has to be inherited by their legal representatives or their legal heirs. The relevant para is extracted here as under :-
"20. In my opinion, no-fault liability, envisaged in Section 140 of the said Act, is distinguishable from the rule of strict liability. In the former, the compensation amount is fixed. It is Rs 50,000 in cases of death [Section 140(2)]. It is a statutory liability. It is an amount which can be deducted from the final amount awarded by the Tribunal. Since, the amount is a fixed amount/crystallised amount, the same has to be considered as part of the estate of the deceased. In the present case, the deceased was an earning member. The statutory compensation could constitute part of his estate. His legal representative, namely, his daughter has inherited his estate. She was entitled to inherit his estate. In the circumstances, she was entitled to receive compensation under no-fault liability in terms of Section 140 of the said Act. My opinion is confined only to the no-fault liability under Section 140 of the said Act. That section is a Code by itself within the Motor Vehicles Act, 1988."
(emphasis added)
26. Further, now the determination has to be made as to whether the father-in-law is entitled to take over the estate of his daughter-in-law. To answer this, we should look into the the law of succession. The provisions regarding the succession as per section-15 of The Hindu Succession Act, 1956, is extracted as under :-
"15. General rules of succession in the case of female Hindus.
(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."
27. On bare reading of the provision it is clear that if a female deceased died intestate leaving behind neither husband nor children. In that case, as per Section 15(1)(b) of the Hindu Succession Act, 1956, her estate devolves upon the heirs of her husband. Thus in the present case claimant-being the father-in-law, is one such heir and therefore qualifies as a legal representative, specially when the parents of the deceased daughter-in-law have never made any claim.
28. In the matter of Manjuri Bera (supra), the Hon'ble Supreme Court has relied on certain precedents while dealing with the term 'legal representative'. The para is extracted as under:-
"12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989 Supp (2) SCC 275 : AIR 1989 SC 1589] the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression legal representative. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai [(1987) 3 SCC 234 : 1987 SCC (Cri) 482 : AIR 1987 SC 1690] a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."
(emphasis added)
29. While defining and giving wider interpretation of the term "legal representative", the Hon'ble Supreme Court in the matter of N. Jayasree v. Cholamandalam MS General Insurance Co. Ltd., reported in (2022) 14 SCC 712, has held that legal heir are the persons who are entitled to inherit the surviving estate of deceased. A legal heir may also be a legal representative. The relevant para is extracted here 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 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)
30. Thus, it can be concluded that the term 'legal representatives' is not only confined to the spouse, parents or children of deceased, it also includes every legal representatives who suffers on account of death of a person in Motor Vehicle Accident and they should have remedy of compensation under the provisions of Motor Vehicle Act.
31. In the present case the claimant has preferred the claim petition as a legal representative and it is also evident that the parents of the deceased have never appeared, objected or disputed before Trial court and also before this court. It is the settled principle of law laid down by the hon'ble Supreme Court in the matter of Manjuri Bera (supra) that the fixed amount awarded under Motor Vehicle Act has to be considered as an estate of the deceased and the same has to be inherited by their legal representatives. In the present case, the compensation is awarded under Section 163(A) of the M.V. Act, constitutes estate of the deceased and the same has to be inherited by the legal representative/legal heirs of the deceased husband (in the present case).
32. It is evident that the deceased was the daughter-in-law of the claimant and the part of family, the claimant's son-Divya Kumar Mishra also died in the same accident who is the husband of deceased-Shakti Mishra.
33. In the prevailing social reality, a daughter, even after marriage, continues to extend care and support not only to her natal family but also to her matrimonial household. In the absence of evidence to the contrary or absence of any refutal, both her parents or parents-in-law ought to be regarded as dependents upon the deceased.
34. The Hon'ble Supreme Court in the matter of Indrawati and another Vs. Ranbir Singh and others reported in 2021 ACJ 2156, 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.
"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 his/her child at the time of accident per se but would become dependent at his/her later age."
(emphasis added)
35. The coordinate bench of Bombay High Court while dealing which the similar point of issue in the matter of Reliance General Insurance Co. Ltd. v. John Philip Rodrigues, reported in 2026 SCC OnLine Bom 2000, has held that both the parents and the parents-in-law are entitled to seek a claim petition for compensation under the provisions of the Motor Vehicles Act, 1988.
36. 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.
37. 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-in-law of the deceased would be maintainable in this case also, specially when the parents of the deceased had never appeared or made any claim for the death of their daughter.
38. As far as the second argument raised by learned counsel for the appellant on the point of contributory negligence is concerned, in the instant case, the deceased-Smt. Shakti Mishra, who was merely a passenger in the car, died as a result of the accident. The Tribunal in the leading case of same accident held that it was a case of contributory negligence and, after adducing evidence, apportioned 20% contributory negligence to the driver of the deceaseds car and 80% contributory negligence to the offending vehicle.
39. 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 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)
40. On the point of composite negligence the hon'ble supreme court has clearly held in the matter of Khenyei (supra) that in case of composite negligence, it is open for the claimant to file claim against both or any of the tortfeasor and to recover the entire compensation from any of them. However, it is also held in para 18(4) of Khenyei (supra), that the Tribunal should not determine the extent of composite negligence between the drivers of two offending vehicles. It is open to the impleaded joint tortfeasor, if so desire, can initiate independent proceedings against the other joint tortfeasor after the passing of the decree or award. The relevant para of the Supreme Court judgement is extracted here as under :-
"18. What emerges from the aforesaid discussion is as follows:
(i) 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.
(ii) 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.
(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 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.
(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 added)
41. 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 Honble Supreme Court in the matter of T.O. Anthony (supra), has also categorically held that in such cases each wrongdoer is jointly and severally liable to the injured for payment of entire 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.
42. In the present case the claimant so chose to recover the said amount from one of the wrongdoer (offending vehicle) and hence there is no illegality or infirmity in the same. Thus, the arguments raised by learned counsel for the appellant is devoid of any merit and the impugned order passed by the Tribunal is perfectly justified.
43. 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.
44. Accordingly, being sans merit, the instant First Appeal From Order is dismissed.
(Prashant Kumar,J.) May 8, 2026 Arjun/-