Rajasthan High Court – Jaipur
Urn: Cma / 518U / 2016United India … vs Smt Mamta Sharma And Others on 6 May, 2026
[2026:RJ-JP:18711]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 292/2016
United India Insurance Company Limited through Manager,
Sahara Chambers, Tonk Road, Jaipur
----Appellant/Non-Claimant No. 3
Versus
1. Smt Mamta Sharma age 35 years W/o late Santosh Kumar
Sharma
2. Kumari Priya Sharma D/o late Santosh Kumar Sharma, age
13 years
3. Abhishek Sharma S/o late Santosh Kumar Sharma, age 11
years
4. Sampati Devi Sharma W/o late Radhy Shaym Sharma, age
75 years
(Respondent No. 2 & 3 are being represented through their
natural guardian and their mother Smt. Mamta Sharma, all
R/o Ganpati Nagar Khatava Kasba Lalsot, Tehsil Lalsot,
District Dausa
—-Respondents/Claimants
Connected With
S.B. Civil Miscellaneous Appeal No. 293/2016
United India Insurance Company Limited through Manager,
Sahara Chambers, Tonk Road, Jaipur
—-Appellant/Non-Claimant No. 7
Versus
1. Parvati @ Asha W/o late Jagdish Prashad, age 27 years
2. Chajulal S/o Panchuram, age 50 year
3. Kisturi age 49 years W/o Chajulal
4. Ravi age 10 years S/o late Jagdish (Minor through her
natural guardian and mother Parvati @ Asha
5. Reena @ Khusboo age 8 years D/o late Jagdish Minor
through her natural guardian and her mother Parvati @
Asha
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6. Rahul age 6 years S/o late Jagdish Prashad, minor through
his natural guardian and mother Parvati
(All R/o Aamvali Dhani Panchayat Rajoli Tehsil Lalsot,
District – Dausa)
7. Rohitash Singh S/o Hari Singh R/o Govind Singh Baas
Rajgad, District – Choru
8. M/s Advance Chemical Industries M I A Alwar through
Power of Attorney Rajpal Singh son of Tejpal Singh by caste
Rajput R/o Phool Bhagh Rothak Road, Rampura Delhi
9. New India Insurance Company Ltd. through Branch
Manager Branch Office near Poonam Takij Lalsot Road,
Dausa
10. M/s. Advance Chemical Industries M I A Alwar through
Partner S.K. Agarwal Son of G.K. Agarwal C/o 13 Phoolbhag
Rothak Road Rampura, Delhi
11. Battilal son of Jainaryan, R/o Mahuklal Tehsil Gangapur City
Sawai Madhopur
12. Hemant Kumar Shukla S/o Ishwar Lal Shukla R/o Near
Chaumunda Devi Mandir Chuligate, Gangapur City, District
-Sawai Madhopur
—-Respondents / Non-Claimants
S.B. Civil Miscellaneous Appeal No. 294/2016
United India Insurance Company Ltd. through Manager, Sahara
Chambers, Tonk Road, Jaipur
—-Appellant-Non/Claimant No. 3
Versus
1. Girraj Prashad Khandal (Sharma) S/o Sitaram Sharma R/o
Kuldeep Nagar Khatava Road Lalsot, District – Dausa.
2. Rohitash Singh S/o Hbari Singh, R/o Govind Singh Ka Baas,
Police Station Mehir Baas Jajgad, District – Choru
3. M/s Advance Chemical Industries, 3/9 Amar Park Rohthak
Road, New Delhi, District – Delhi
4. New India Insurance Company Ltd. through Branch
Manager Branch Office near Poonam Takij Lalsot Road,
Dausa
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5. Rajpal Singh S/o Tejpal Singh, R/o 13 Phool Bag Rothak
Road, Rampura New Delhi at present Manager – Advance
Chemical Industries, Rothak Road, New Delhi
6. Battilal S/o Jainaryan, R/o Nayapura Mhaklal, Tehsil
Gangapur City, Sawai Madhopur
7. Hament Kumar Shukla S/o Ishwar Lal Shukla, R/o near
Chamunda Devi Mandir, Chuligate, Gagnapur City, District –
Sawai Madhopur
—-Respondents/Non-Claimants
S.B. Civil Miscellaneous Appeal No. 2823/2016
1. Smt Mamta Sharma, age 40 years, W/o late Santosh
Kumar Sharma
2. Kumari Priya Sharma, age 18 years, D/o late Santosh
Kumar Sharma
3. Abhishek Sharma, age 16 years, S/o late Santosh Kumar
Sharma, minor throgh natural guradain mother Smt.
Mamta Sharma
4. Smpatti Devi Sharma, age 80 years, W/o late
Radheyshyam Sharma
All R/o Ganpati Nagar, Khatwa Road, Lalsot, Tehsi Lalstot,
District – Dausa
—-Claimants / Appellants
Versus
1. Batti Lal Saini Saini S/o Jainarayan Saini, R/o Nayapura,
Mahukalan, P.S. Gangapur City, District – Sawai Madhopur
(Driver RJ 25 UA 0453)
2. Hemant Kumar Shukla S/o Iswher Lal Shukla, R/o Near
Chamunda Devi Temple, Chuli Gate, Gangapur City, District
Sawai Madhopur (Owner RJ 25 UA 0453)
3. United India Insurance Company Limited, through Branch
Manager, Branch Office, Kamaldeep, Near Railway Crossing,
Agra Road, Dausa (Insurance Company RJ 25 UA 0453)
4. Rohitash Singh S/o Hari Singh, R/o Govindsingh Ka Baas,
P.S. Mihirbaas, Rajgarh, District – Churu (Driver RJ 02 GA
0879)
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5. Advance Chemical Industries, 3/9, Amar Park, Rohtak
Road, New Delhi, District – Delhi (Owner RJ 02 GA 0879)
5-A Rajpal Singh S/o Tejpal Singh, R/o 13, Phoolbagh, Rohtak
Road, Rampura, New Delhi, At present Manager, Advance
Chemical Industries, Rohtak Road, New Delhi
(Owner RJ 02 GA 0879)
6. The New India Assurance Company Limited, Through
Branch Manager, Branch Office, Near Poonam Cinema,
Lalstot Road, Dausa (Insurance Company RJ 02 GA 0879)
—-Non Claimants / Respondents
For Appellant(s) : Ms. Archana Mantri
For Respondent(s) : Mr. Gunjan Pathak
Mr. Ritesh Jain with
Dr. Ramdeo Arya
Mr. Ram Singh Bhati
Mr. Ravindra Kumar Paliwal with
Mr. Abhishek Paliwal
Mr. Rahul Sharma with
Ms. Anjali Sharma for
Mr. Mukesh Kumar Goyal
Mr. Naman Gurjar for
Mr. K.K. Bhinda
HON’BLE MR. JUSTICE SANDEEP TANEJA
Judgment
Date of Conclusion of Arguments 23.03.2026
Date on which judgment was reserved 23.03.2026
Whether the full judgment or only Full Judgment
operative part is pronounced
Date of Pronouncement 06.05.2026
1. These appeals are directed against a common judgment and
award dated 01.12.2015 passed by the learned Motor Accident
Claims Tribunal, Dausa, District Dausa (Raj.) (for short ‘Tribunal’)
in MAC cases No. 167/2011, 240/2011, 242/2011, 243/2011 and
244/2011, whereby the claim petitions filed by the claimants
therein were partly allowed.
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2. Brief facts of the case giving rise to these appeals, are that
on 07.01.2011 Jagdish Prasad, Santosh Kumar Sharma, Giriraj
Prasad, Vinod Kumar and Lalit Kumar were travelling in a Scorpio
car bearing Registration No.RJ-25-UA-0453, from Lalsot to Delhi.
At around 3:00 AM, when they reached near Jajor on Alwar –
Bhiwadi Highway, the car dashed into a truck bearing Registration
No.RJ-02-GA-0879 which was standing on the road without any
indicator or signal or obstruction around it. As a result of which,
Jagdish Prasad and Santosh Kumar Sharma died on the spot,
whereas Giriraj Prasad, Vinod Kumar and Lalit Kumar sustained
grievous injuries.
3. In relation to the said accident, a First Information Report
(for short ‘FIR’) was lodged by Lalit Kumar at Police Station, Sadar
Alwar and after investigation, police filed a charge-sheet under
Section 283 IPC against the driver of the truck and under Sections
279, 337, 338 & 304A IPC against the driver of the car.
4. The truck was insured with The New India Insurance
Company (for short ‘NIIC’), and the car was insured with United
India Insurance Company (for short ‘appellant-Insurance
Company’).
5. The legal representatives of both the deceased persons, as
also injured namely, Giriraj Prasad, Vinod Kumar and Lalit Kumar
filed separate claim petitions before the learned Tribunal against
both the insurance companies and also against the drivers and
owners of both the vehicles.
6. On the basis of pleadings of parties, the learned Tribunal
framed five issues. In support of the claim petitions, the claimants
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therein examined five witnesses namely, Smt. Mamta Sharma
(AW-1), Giriraj Prasad (AW-2), Vinod Kumar Sharma (AW-3), Lalit
Kumar Sharma (AW-4) and Parvati @ Asha (AW-5), and produced
documents which were marked as Exhibit-1 to Exhibit-138. The
NIIC and appellant-Insurance Company produced certain
documents, however, they did not lead any oral evidence.
7. After considering the submissions of the parties and
evaluating the evidence on record, the learned Tribunal concluded
that the accident resulted due to the negligence of drivers of both
the vehicles and attributed 75% negligence to the driver of the car
and 25% negligence to the driver of the truck. Accordingly, while
partly allowing the claim petitions, the learned Tribunal
apportioned the liability to pay compensation between the
appellant-Insurance Company and NIIC in the ratio of 75:25.
8. Being aggrieved by and dissatisfied with the impugned
judgment and award, following appeals have been filed:-
S.No. Appeal No. Claim Claim Petition
Petition No. filed by
1. 292/2016 (by 240/2011 Legal
appellant- representatives
Insurance of Santosh
Company) Kumar Sharma
2. 293/2016 (by 167/2011 Legal
appellant- representatives
Insurance of Jagdish
Company) Prasad
3. 294/2016 (by 242/2011 Injured - Giriraj
appellant- Prasad
Insurance
Company)
4. 2823/2016 (by 240/2011 Legal
legal representatives
representatives of Santosh
of Santosh Kumar Sharma
Kumar Sharma)
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S.B. Civil Miscellaneous Appeal No. 292/2016, 293/2016
and 294/2016
9. Learned counsel for the appellant-Insurance Company
submitted that the accident occurred on 07.01.2011 at about 3:00
AM, when there was dense fog. It was further submitted that the
accident took place due to the sole negligence of the truck driver,
who had parked the vehicle in the middle of the road without any
indication, light, or warning sign such as placing stones or other
obstructions around the truck.
9.1 It is further submitted that if there had been any indication,
such as lights or warning obstructions, the car would not have
collided with the truck, and the accident could have been avoided.
9.2 On the basis of the aforesaid submissions, the learned
counsel assailed the impugned judgment and award and prayed to
allow the appeals and dismiss the claim petitions, qua the
appellant-Insurance Company, filed by the claimants. The learned
counsel relied upon the judgment passed by the Hon’ble Supreme
Court in the case of Sushma Vs. Nitin Ganapati Rangole and
Ors., reported in AIR 2024 SC 4627.
10. Per contra, learned counsel for the respondents opposed the
submissions made by learned counsel for the appellant- Insurance
Company and supported the findings given by the learned
Tribunal.
11. Heard learned counsel for the parties and perused the
material available on record.
12. Upon perusal of the record, it is apparent that the accident
took place on 07.01.2011 at approximately 3:00 AM, when the car
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collided with the stationary truck near Jajor on the Alwar-Bhiwadi
Highway and dense fog was prevailing on that day. Lalit Kumar
who was also travelling in the car and got injured in the said
accident lodged the FIR (Exhibit-1) on the same date which reads
as under:-
“vkt fnukad 7@1@11 dks LdkfiZ;ks xkMh uEcj RJ-25-UA-
0453 ls esa o larks’k dqekj] fouksn dqekj] txnh”k] fxjkZt]
“k.My] dUkuh yky vius xkao ykylksV ls fnYyh tk jgs FksA
gekjh xkMh LdkfiZ;ks dks cRrhyky lSuh pyk jgk Fkk rks vkt
fnukad 7@1@11 le; djhc 3 cts lqcg tSsls gh tktkSj ds
ikl vyoj fHkokM+h gkbos ij igqaps rks ,d Vªd RJ-02-GA-
0879 tks jksM ij lkbZM ls igys ls [kM+k Fkk ysfdu gekjh
xkM+h ds pkyd cRrhyky us xkMh dks rsth o ykijokgh ls
pykdj lkeus [kMs ,d Vªd RJ-02-GA-0879 esa ihNs Vddj
ekj nh ftlesa gekjh xkMh esa cSBs larks’k dqekj o txnh”k
izlkn ds “kjhj vkbZ xaHkhj pksVksa ds dkj.k ekSds ij gh e`R;q gks
xbZA”
(emphasis supplied)
From the aforesaid FIR, which is the first version of the
claimants about the accident, it is clear that the truck was
standing on the road side only and the accident occurred due to
negligence of the driver of the car.
12.1 The police started investigation in relation to the said
incident and during this process prepared Naksha Mauka (Site
Plan) (Exhibit-3), as per which also the location of the truck was
on the road side.
12.2 The police, after concluding the investigation, filed charge-
sheet under Sections 279, 337, 338, 304A IPC against the driver
of the car, meaning thereby, the offence of rash and negligent
driving was prima facie found proved against the said driver,
whereas, charge-sheet against the driver of the truck was
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submitted under Section 283 IPC for causing obstruction in a
public way or line of navigation.
12.3 The claimants, after filing of the charge-sheet, filed the claim
petitions seeking compensation jointly and severally from drivers,
owners and insurance companies of the vehicles. It is apposite to
mention here that the claimants, in their claim petitions,
specifically pleaded that the car was driven at high speed, rashly
and negligently and due to which it collided with the truck. The
relevant portion of the Claim Petition No. 167/2011 is reproduced
hereunder for ready reference:-
“fnukad 07-01-2011 dks e`rd txnh”k izlkn vius ifjfpr o
tkudkj ds okgu LdkWfiZ;ks la[;k vkjts 25 ;w, 0453 esa
cSBdj vius vU; lkfFk;ksa ds lkFk ykylksV ls fnYyh tk jgs
Fks tSls gh mDr okgu LdkWfiZ;ks le; djhc lqcg 3 cts
tktkSj ds ikl vyoj fHkokM+h gkbZos ij igqaps rks foi{kh la[;k
1 dk okgu Vªd la[;k vkjts 02 th, 0879 lM+d ds
chpksachp fcuk fdlh bafMdsVj ;k flXuy ds lM+d fu;eksa
,oa ;krk;kr fu;eksa dk mYya?ku djrs gq, [kM+k Fkk ftldh
foi{kh la[;k 5 ussa vius mDr okgu LdkWfiZ;ks la[;k vkjts
25 ;w, 0453 dks rstxfr] ykijokgh o xQyr ls pykrs gq,
mDr lM+d ds chpksachp [kM+s okgu Vªd la[;k vkjts 02 th,
0879 ds ihNs ls Vddj ekj nh ftlls e`rd txnh”k izlkn
ds “kjhj esa xaHkhj pksVsa vkbZa o ?kVukLFky ij gh txnh”k izlkn
o larks’k dh ekSds ij gh e`R;q gks x;h rFkk vU; cSBs O;fDr;ksa
ds “kjhj esa Hkh xaHkhj pksVsa vk;haA”
(emphasis supplied)
Similar averments have been made in other claim petitions
as well. It is, thus, evident that the case of the claimants before
the learned Tribunal was that the driver of the car was driving the
car rashly and negligently which led to the occurrence of the
accident. Although it was also alleged that the truck was stationed
in the middle of the road. This contention, however, is
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contradictory to the contents of the FIR and the Naksha Mauka,
both of which clearly indicate that the truck was parked on the
roadside.
12.4 During trial, the claimants produced three eye-witnesses
namely, Giriraj Prasad (AW-2), Vinod Kumar Sharma (AW-3) and
Lalit Kumar Sharma (AW-4), who were travelling in the car at the
time of the accident and also sustained injuries. It is relevant to
note that the said eye-witnesses, in their examination-in-chief,
stated that the driver of the car was driving at a high speed,
rashly and negligently and hit the stationary truck from its behind.
Although, it was also mentioned that the truck was standing in the
middle of the road without parking lights and indicator.
12.5 Giriraj Prasad (AW-2) during cross-examination stated that
the truck was standing 1-2 feet away from the side of the road,
towards footpath. He further stated that the rest of the road
towards divider was clear. The car was being driven at an
approximate speed of 50-60 kmph. He also stated that they could
see the truck standing, from a distance of about 10-15 feet and as
soon as they saw the truck, they asked the driver to apply brakes,
but the driver did not do so, and the car dashed into the truck. It
was also stated that if the driver had driven the car at slow speed,
the accident would not have occurred as the vehicle would have
stopped. He, however, stated that the truck was standing in the
middle of the road and indicators were not lit. There was dense
fog, hence the truck was not visible and therefore, the accident
occurred.
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12.6 Vinod Kumar Sharma (AW-3) during his cross-examination
stated that the place of occurrence was 20-22 km from Alwar and
the car was being driven at an approximate speed of 70-80 kmph.
He further stated that he could see the truck from 50 metres and
thereafter warned the driver of the car to drive slowly. He further
stated that the width of the road was 24 feet and the space
towards the conductor side was 2 feet. Thereafter, again he said
that they could see the truck from 150 metres. He also stated that
if the truck driver had lit the indicator or had put stones around
the truck as indicator, the accident would not have occurred.
12.7 Further, Lalit Kumar Sharma (AW-4) during his cross-
examination stated that there was space of approximately 2-3 feet
towards the left side of the truck. He further stated that at that
time, the speed of the car was about 50 kmph and he could see
the truck standing from a distance of 15-20 feet and when he saw
the truck he asked the driver that there was a truck in the front,
and the driver instead of applying brakes, tried to take the car
from the side of the truck. He further stated that, if the driver had
applied the brakes or had tried to stop the car, probably the
accident would not have occurred. He also stated that if the truck
driver had put any indicator, the accident would not have
occurred.
13. It is a well settled principle of law that a claim petition
should be decided on the basis of preponderance of probability
rather than strict proof beyond reasonable doubt as is the
requirement in criminal cases. In this regard, it is relevant to refer
to the observations made by the Hon’ble Supreme Court in the
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case of ICICI Lombard General Insurance Co. Ltd. Vs. Rajani
Sahoo & Ors. reported in (2025) 2 SCC 599, which read as
under:
“8. As regards the reliability of charge-sheet and other
documents collected by the police during the investigation
in motor accident cases, this Court in Mangla Ram v.
Oriental Insurance Co. Ltd., (2018) 5 SCC 656, held in
para 27, thus:
“27. Another reason which weighed with the
High Court to interfere in the first appeal filed
by Respondents 2 and 3, was absence of finding
by the Tribunal about the factum of negligence
of the driver of the subject jeep. Factually, this
view is untenable. Our understanding of the
analysis done by the Tribunal is to hold that
Jeep No. RST 4701 was driven rashly and
negligently by Respondent 2 when it collided
with the motorcycle of the appellant leading to
the accident. This can be discerned from the
evidence of witnesses and the contents of the
charge-sheet filed by the police, naming
Respondent 2. This Court in a recent decision in
Dulcina Fernandes, (2013) 10 SCC 646, noted
that the key of negligence on the part of the
driver of the offending vehicle as set up by the
claimants was required to be decided by the
Tribunal on the touchstone of preponderance of
probability and certainly not by standard of
proof beyond reasonable doubt. Suffice it to
observe that the exposition in the judgments
already adverted to by us, filing of charge-sheet
against Respondent No. 2 prima facie points
towards his complicity in driving the vehicle
negligently and rashly. Further, even when the
accused were to be acquitted in the criminal
case, this Court opined that the same may be
of no effect on the assessment of the liability
required in respect of motor accident cases by
the tribunal.”
(emphasis supplied)
9. It is true that the Tribunal had looked into the oral and
documentary evidence including the FIR, final report and
such other documents prepared by the police in
connection with the accident in question. The Tribunal had
also taken note of the fact that based on the final report,
the driver of the offending truck was tried and found
guilty for rash and negligent driving. The High Court took
note of such aspects and found no illegality in the
procedure adopted by the Tribunal and consequently
dismissed the appeal.
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10. In the contextual situation it is relevant to refer to a
decision of this Court in Mathew Alexander v. Mohd. Shafi,
(2023) 13 SCC 510, this Court held thus:
“12. … A holistic view of the evidence has to be
taken into consideration by the Tribunal and
strict proof of an accident caused by a
particular vehicle in a particular manner need
not be established by the claimants. The
claimants have to establish their case on the
touchstone of preponderance of probabilities.
The standard of proof beyond reasonable doubt
cannot be applied while considering the petition
seeking compensation on account of death or
injury in a road traffic accident. To the same
effect is the observation made by this Court in
Dulcina Fernandes v. Joaquim Xavier Cruz,
(2013) 10 SCC 646 which has referred to the
aforesaid judgment in Bimla Devi, (2009) 13
SCC 530.”
11. Thus, there can be no dispute with respect to the
position that the question regarding negligence which is
essential for passing an award in a motor vehicle accident
claim should be considered based on the evidence
available before the Tribunal. If the police records are
available before the Tribunal, taking note of the purpose
of the Act it cannot be said that looking into such
documents for the aforesaid purpose is impermissible or
inadmissible.”
From the above, it is also clear that while deciding the claim
petition, it is permissible for the Tribunal to look into the police
records.
14. In the instant case, it is evident that at every stage, namely
(i) in the FIR, (ii) in the pleadings of the claim petitions, (iii) in the
examination-in-chief, and (iv) in the cross-examination, the
claimants have consistently maintained that the car was being
driven at a high speed and that the accident occurred due to the
rash and negligent driving of its driver. In such circumstances,
some contradictions in statements during cross-examination
cannot outweigh the constant version put forth by the claimants
throughout the proceedings. Moreover, the police has also found a
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prima facie case against the driver of the car for offences
punishable under Sections 279, 337, 338, and 304A of IPC.
Further, the testimony of AW-2 & AW-4 also point out that as soon
as they saw the truck, they cautioned the driver, but the driver did
not apply the brakes. If the driver had applied the brakes, the car
could have stopped in time and the accident could have avoided.
It is, thus, established that the accident occurred due to
negligence of the driver of the car.
15. In so far as location of the truck is concerned, it is necessary
to note that drivers of both the vehicles were not examined.
However, from the contents of the FIR, Naksha Mauka report and
the testimonies of AW-2 & AW-4, it is established that the truck
was parked on the road side and not in the middle of the road.
However, it is also clear from the evidence that truck was parked
on the roadside without any warning signals, indicators, or
precautionary measures to alert oncoming traffic. If the truck
driver had put any warning signal or indication, the accident could
have been avoided. It is, thus, also established that the truck
driver was also negligent and was also responsible for the
occurrence of the accident.
16. The learned counsel for the appellant – Insurance Company
has relied on the case of Sushma (supra). In that case there was
a concurrent finding of fact by the Tribunal and the High Court
that the truck was left abandoned in the middle of the road.
Moreover, in that case, the Tribunal while holding the passengers
of the car vicariously liable for the negligence of the driver had
reduced their compensation which was affirmed by the High Court.
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In the above facts and circumstances, the Hon’ble Supreme Court
observed that the passengers of a vehicle are not vicariously liable
for the negligence of the driver and therefore, the compensation
payable to the passengers or their legal representative cannot be
reduced. With respect to the negligence of the driver of the car,
the Hon’ble Supreme Court observed that since the truck was
standing in the middle of the road without any warning signals,
the entire negligence was of the truck and not that of the driver of
the car. However, in the present case, evidence clearly point out
that the truck was standing on the side of the road and the driver
of the car was also driving the car rashly and negligently.
17. In light of the above discussion, this Court is of the
considered opinion that the learned Tribunal after examining the
entire factual matrix of the case and evaluating the whole of the
evidence available on record, rightly concluded that the accident
occurred due to negligence of drivers of both the vehicles wherein
the primary liability was of the driver of the car due to his rash
and negligent driving, and accordingly, rightly determined the
liability of the appellant-Insurance Company and NIIC in the ratio
of 75:25. Hence, there is no legal infirmity or illegality in the said
finding of the learned Tribunal. Resultantly, the appeals preferred
by the appellant-Insurance Company are dismissed.
S.B. Civil Miscellaneous Appeal No. 2823/2016
18. Being dissatisfied with the impugned judgment and award,
the present appeal has been preferred by the legal representatives
of deceased – Santosh Kumar Sharma (for short ‘claimants’)
seeking enhancement of compensation so awarded.
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19. Learned counsel for the claimants submitted that the learned
Tribunal has erred in assessing the monthly income of the
deceased by calculating it on a notional basis at Rs.5,000/-,
however, it should have been determined on the basis of income
reflected in Income Tax Returns filed by the deceased. He further
submitted that out of last three Income Tax Returns filed by the
deceased, the last Income Tax Return i.e. for the Assessment Year
2010-2011, reflects the highest income of the deceased,
therefore, it should be considered for assessing the income of the
deceased. He also submitted that the gross income for the
Assessment year 2010-2011 was declared as Rs.1,75,110/- and
after deducting the income tax of Rs.715/-, the annual income for
the same year would amount to Rs.1,74,395/-. In support of his
contention, the learned counsel placed reliance on the judgment
passed by the Hon’ble Supreme Court in the case of Malarvizhi &
Ors. Vs. United India Insurance Company Limited & Anr.,
reported in (2020) 4 SCC 228.
19.1 Learned counsel further contended that the learned Tribunal
further erred in assessing the age of the deceased as 48 years, by
relying on the post-mortem report, whereas his age should have
been determined on the basis of Driving Licence (Exhibit-25) and
Permanent Account Number (PAN) Card (Exhibit-26) which clearly
reflect that deceased was 41 years old at the time of accident.
19.2 Learned counsel also contended that under the head of loss
consortium, the learned Tribunal has awarded a lump-sum amount
of Rs.1,00,000/-, whereas the each of the claimants is entitled to
Rs.40,000/-, separately.
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19.3 Learned counsel for the claimants further contended that the
learned Tribunal has erred in directing the insurance companies to
pay compensation to the claimants in the ratio of 75:25. Since, it
is a case of composite negligence, the claimants should be allowed
to claim compensation from any of them.
20. Learned counsel for the insurance companies opposed the
submissions made hereinabove by learned counsel for the
claimants and supported the impugned judgment and award.
21. Heard learned counsel for the parties and perused the
material available on record.
22. In respect of the first issue raised by the learned counsel for
the claimants, it is not in dispute that the claimants produced the
Income Tax Returns of deceased for the last three assessment
years i.e. 2008-2009, 2009-2010 and 2010-2011 (Exhibit-22-24)
which were filed by the deceased himself with the Income Tax
Department. It is also undisputed that in the Income Tax Return
for the assessment year 2010-11, the deceased had declared the
highest income as Rs.1,74,395/-.
22.1 The Hon’ble Supreme Court in the case of Nidhi Bhargava
& Ors. Vs. National Insurance Company Ltd. & Ors., reported
in 2025 SCC Online SC 872, has observed that determination of
income should be made on the basis of Income Tax Returns. For
ready reference, the relevant para of the said judgment is
reproduced below:-
“13. The Income Tax Return is a legally admissible
document on which the income assessment of the
deceased could be made. This Court in Malarvizhi v
United India Insurance Co. Ltd., (2020) 4 SCC 228
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[2026:RJ-JP:18711] (18 of 22) [CMA-292/2016]on the basis of Income Tax Return(s), when available,
being a statutory document. In S Vishnu Ganga v
Oriental Insurance Company Limited, 2025 SCC
OnLine SC 182, we opined:
’11….It is no longer res integra that Income
Tax Returns are reliable evidence to assess the
income of a deceased, reference whereof can
be made to Amrit Bhanu Shali v National
Insurance Co. Ltd., (2012) 11 SCC 738 [Para
17]; Kalpanaraj v Tamil Nadu State Transport
Corporation, (2015) 2 SCC 764 [Para 7] and K
Ramya (supra) [Para 14 of 2022 SCC OnLine
SC 1338].’ (emphasis supplied)”
22.2 Therefore, relying on the afore-mentioned judgment, this
Court is of the opinion that the determination of the annual
income of the deceased for the purpose of calculation of loss of
dependency would be made on the basis of the Income Tax
Returns filed by him.
22.3 Further, in the case of Malarvizhi & Ors. (supra), the
Hon’ble Supreme Court, affirmed the determination of annual
income of the deceased on the basis of the Income Tax Return
pertaining to the financial year reflecting the highest income. The
relevant paragraphs of the said judgment are reproduced
hereunder:-
“6. In appeal, the High Court concluded that on an
analysis of the income tax returns filed by the deceased
for the financial years 1995-1996 to 2000-2001, the
income declared for the financial year 1997-1998 was the
highest and must be taken as the annual income of the
deceased………
xxxx
10. ……..The tax return indicates an annual income of Rs
2,11,131 in the relevant assessment year. Mr Jayanth
Muth Raj, learned Senior Counsel appearing on behalf of
the appellant contended that other documents were
marked which reflected the income of the deceased. We
are in agreement with the High Court that the
determination must proceed on the basis of the income
tax return, where available. The income tax return is a
statutory document on which reliance may be placed to
determine the annual income of the deceased. To the(Uploaded on 06/05/2026 at 03:08:40 PM)
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[2026:RJ-JP:18711] (19 of 22) [CMA-292/2016]benefit of the appellants, the High Court has proceeded
on the basis of the income tax return for Assessment Year
1997-1998 and not 1999-2000 and 2000-2001 which
reflected a reduction in the annual income of the
deceased.”
(emphasis supplied)
22.4 Undisputedly, in the case at hand, the highest income of the
deceased is reflected in the last Income Tax Return filed by the
deceased. Hence, Income Tax Return pertaining to the last
assessment year i.e. 2010-11, reflecting Rs.1,74,395/-, as the
annual income shall be considered for calculating the
compensation towards loss of dependency.
23. In connection with the issue of the age of the deceased, from
a bare perusal of the record, it is revealed that the claimants in
the claim petition mentioned the age of deceased as 41 years and
in support of the same, produced the Driving Licence (Exhibit-25)
and the Permanent Account Number (PAN) Card (Exhibit-26) of
the deceased on record. Both of these documents reflect the date
of birth of deceased as 08.11.1969, as per which his age, at the
time of the accident, was 41 years. However, the learned Tribunal,
after relying upon the post-mortem report of the deceased,
determined his age as 48 years.
23.1 The post-mortem report is a document to ascertain nature of
injuries and cause of death. The age mentioned in the post-
mortem report is estimated on the basis of anatomical
examination and the same does not reflect the accurate age. In
the case in hand, the claimants have relied upon driving licence
and PAN card of the deceased, issued by respective government
agencies, which have higher degree of reliability as compared to
that of the post-mortem report.
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23.2 In view thereof, in the opinion of this Court, the learned
Tribunal erred in relying upon the post-mortem report to
determine the age of the deceased. Accordingly, the age of the
deceased is determined as 41 years.
24. With respect to the issue regarding the compensation under
the head of loss of consortium, this Court is of the view that in
accordance with the principles laid down by the Hon’ble Supreme
Court in the cases of National Insurance Company Ltd. Vs.
Pranay Sethi reported in (2017) 16 SCC 680 and Magma
General Insurance Company Vs. Nanuram @ Chuhru Ram &
Ors. reported in (2018) 18 SCC 130, each of the claimants is
entitled to get compensation of Rs. 40,000/- towards the loss of
consortium. Since, the age of the deceased at the time of accident
is determined as 41 years, addition @ 25% will be made in the
income of the deceased towards future prospects.
25. In so far as the last contention of the claimants regarding
liability of the insurance companies to make payment of
compensation to the claimants, is concerned, it is pertinent to
refer to the judgment passed by Hon’ble Supreme Court in T.O.
Anthony v. Karvarnan and Ors. reported in 2008 (3) SCC
748, wherein the Hon’ble Supreme Court has expounded that
when a person dies or is injured as a result of negligence on the
part of two or more wrong doers and not because of the
negligence of the deceased / injured, then it will be a case of
composite negligence of those wrong-doers and in that case, each
wrong doer, will be jointly and severally liable to the claimants for
payment of the damages and the claimants have the choice of
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[2026:RJ-JP:18711] (21 of 22) [CMA-292/2016]
proceeding against all or any of them. The relevant portion of the
aforesaid judgment is reproduced herein below:-
“6. “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)
26. In the instant case, the claimants are the legal
representatives of the deceased and none of them is the driver of
the vehicles involved in the accident, i.e., truck and car. Hence,
the present is a case of composite negligence as there was no
negligence on the part of the deceased. Therefore, despite
apportionment of liability between the insurance companies, it is
open for the claimants to claim compensation from any of them.
27. As a result of above discussion, the compensation payable to
the claimants is re-assessed as under:-
S.No. Particular Amount assessed
1. Annual Income Rs.1,74,395/-
2. According to the age of the Rs.1,74,395 x 14
deceased i.e. 41 years, = Rs.24,41,530/-
multiplier 14 to be applied
3. Add 25% towards future Rs.24,41,530/- +
prospects (+) Rs.6,10,383/-
= Rs.30,51,913/-
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4. As per dependency, 1/4th Rs.30,51,913/- –
income to be deduced for Rs.7,62,978
personal expenses of the = Rs.22,88,935/-
deceased (-)
5. Loss of consortium Rs.40,000 x 4
(four dependants) = Rs.1,60,000/-
6. Loss of Estate Rs.15,000/-
7. Funeral Expenses Rs.15,000/-
Total Compensation Rs.24,78,935/-
(S.No.4+5+6+7)
Less amount awarded by Rs.8,85,500/-
the Tribunal (-)
Enhanced amount of Rs. 15,93,435/-
compensation
28. Accordingly, the compensation awarded by the learned
Tribunal is enhanced by Rs.15,93,435/-. The insurance
companies are directed to deposit the enhanced amount within a
period of two months from today. The rest of the impugned award
shall remain intact.
29. It is directed that the enhanced amount shall carry the rate
of interest in terms of the award passed by the learned Tribunal,
from the date of filing of the claim petition. The enhanced amount
shall be disbursed in terms of the award passed by the learned
Tribunal.
30. The impugned award is modified in the above terms and the
present appeal is partly allowed.
31. All pending applications, if any, also stand disposed of.
32. Registry is directed to send back the record of the case to
the concerned Tribunal forthwith.
(SANDEEP TANEJA),J
SKS/19-22
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