Rajasthan High Court – Jaipur
Prem Devi vs Laxmi Devi And Others on 1 April, 2026
[2026:RJ-JP:11944]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 6070/2016
1. Savitri Devi W/o Hajari Lal, R/o Dhani Choudhary Ki, Subhash
Chowk, Tan- Bansur, Distt. Alwar, Rajasthan
2. Hajari Lal S/o Cheemaram, R/o Dhani Choudhary Ki, Subhash
Chowk, Tan- Bansur, Distt. Alwar, Rajasthan
----Claimants/Appellants
Versus
1. Lakshmi Devi W/o O.P. Khandelwal Owner Of Vehicle No. RJ14-
1G-1861, R/o Plot No. B-1, Ratan Nagar, Dhehar Ka Balaji,
Jaipur, Rajasthan
2. The Oriental Insurance Company Limited, Through Zonal
Manager, Insurer Of Vehicle No.RJ14-1G-1861, Zonal Office,
70, Panchvati, Alwar, Rajasthan
3. Pappuram S/o Harigaram, Driver Of Vehicle No.RJ19-GA-2443,
R/o Adarsh Nagar, Khara, Tehsil Phalodi, Distt. Jodhpur,
Rajasthan
4. Bhanwar Lal S/o Harigaram, Owner Of Vehicle No.RJ19-GA-
2443, R/o Adarsh Nagar, Khara, Tehsil Phalodi, Distt. Jodhpur,
Rajasthan
5. Manager, ICICI Lombard General Insurance Company Limited
Insurer Of Vehicle No.RJ19-GA-2443, Head Office Bandra Kurle
Complex, Mumbai Branch Office- Jodhpur, Rajasthan
----Non-Claimants/Respondents
6. Prem Devi W/o Late Mahesh Chand, R/o Dhani Choudhary Ki,
Subhash Chowk, Tan- Bansur, Distt. Alwar, Rajasthan
—-Proforma/Respondent
Connected With
S.B. Civil Miscellaneous Appeal No. 1386/2016
ICICI Lombard General Insurance Company Ltd. Having its Registered
Office at ICICI Bank Tower, Bandra Kurla Complex, Mumbai – 400051,
having its Regional Office at II Floor, Bhagwati Bhawan, above P.L.
Motors, Government Hostel Crossing, M.I. Road, Jaipur- through its
Constituent Attorney.
—-Non-Claimant/Appellant
Versus
1. Savitri Devi W/o Hajari Lal, R/o Dhani Choudhary Ki, Subhash
Chowk, Tan- Bansur, Distt. Alwar, Rajasthan
2. Hajari Lal S/o Chimaram, R/o Dhani Choudhary Ki, Subhash
Chowk, Tan- Bansur, Distt. Alwar, Rajasthan
3. Prem Devi W/o Late Maheshchand, R/o Dhani Choudhary Ki,
Subhash Chowk, Tan- Bansur, Distt. Alwar, Rajasthan
—-Claimants/Respondents
4. Laxmi Devi W/o O.P. Khandelwal, R/o Plot No. B-1, Ratan Nagar,
Dhahar Ka Balaji, Jaipur, Rajasthan (Owner of Vehicle No.RJ14-1G-
1861)
5. The Oriental Insurance Company Limited, Through Regional
Manager, Regional Office, 70, Panchvati, Alwar, Rajasthan (Insurer of
Vehicle No.RJ14-1G-1861)
6. Pappuram S/o Harigaram, R/o Adarsh Nagar, Khara, Tehsil
Falodi, Distt. Jodhpur, Rajasthan (Driver of Vehicle No.RJ19-GA-2443)
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7. Bhawarlal S/o Harigaram, R/o Adarsh Nagar, Khara, Tehsil
Falodi, Distt. Jodhpur, Rajasthan (Owner of Vehicle No.RJ19-GA-2443)
—-Non-Claimants/Respondents
S.B. Civil Miscellaneous Appeal No. 3023/2016
Prem Devi W/o Late Mahesh Chand, Aged about 32 years, R/o Dhani
Choudhary Ki, Subhash Chowk, Tan- Bansur, Distt. Alwar, Rajasthan
—-Claimant/Appellant
Versus
1. Laxmi Devi W/o O.P. Khandelwal, R/o Plot No. B-1, Ratan Nagar,
Dehar Ka Balaji, Jaipur, Rajasthan (Owner of Vehicle No.RJ14-1G-
1861)
2. Oriental Insurance Company Limited, Through its Divisional
Manager, Divisional Office at 70, Panchwati, Raghu Marg, Alwar,
Rajasthan (Insurance Company of Vehicle Truck No.RJ14-1G-1861)
3. Pappu Ram S/o Harigaram, R/o Adarsh Nagar, Khara, Tehsil
Phalodi, Distt. Jodhpur, Rajasthan (Driver of Vehicle Truck No.RJ19-
GA-2443)
4. Bhawar Lal S/o Harigaram, R/o Adarsh Nagar, Khara, Tehsil Falodi,
Distt. Jodhpur, Rajasthan (Owner of Vehicle Truck No.RJ19-GA-2443)
5. ICICI Lombard General Insurance Company Ltd. Through its
Registered Manager, Regional Office at ICICI Bank Towers, Bandra
Kurla Complex, Mumbai (Mah.) (Insurance Company of Vehicle Truck
No.RJ19-GA-2443)
—-Non-Claimants/Respondents
For Appellant(s) : Mr. Jai Kishan Yogi (appellant in CMA
No.6070/2016 & respondent in CMA
No.1386/2016)
Mr. Gaurav Gupta (appellant in CMA
No.3023/2016 & respondent in CMA
No.1386/2016)
For Respondent(s) : Mr. Chanderdeep Singh Jodha
(respondent in CMA No.6070/2016 &
appellant in CMA No.1386/2016)
Mr. Kinshuk Jain (respondent in CMA
No.6070/2016 & CMA No.3023/2016)
Mr. Sandeep Jain (respondent in CMA
No.1386/2016 & CMA No.3023/2016)
HON’BLE MR. JUSTICE SANDEEP TANEJA
Judgment
Date of Conclusion of Arguments :: 09.03.2026
Date on which judgment was reserved :: 09.03.2026
Whether the full judgment or only
the operative part is pronounced :: Full Judgment
Date of Pronouncement :: 01.04.2026
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1. Since, all these appeals arise out of a common judgment and
award dated 08.01.2016 passed by the learned Additional District Judge
and Motor Accident Claims Tribunal, Bansur, Distt. Alwar (hereafter to
be referred as ‘Tribunal’) in Motor Accident Claim Case No.93/2007 &
109/2007, they are heard analogously and are being decided by this
common judgment.
2. The brief facts of the case are that on 24.05.2007 at around
06.00 P.M., a Truck, bearing registration No.RJ14-1G-1861, (hereinafter
to be referred as ‘Truck – 1861’), driven by Mahesh Chand, met with an
accident with another Truck, bearing registration No. RJ19-GA-2443, (to
be referred as ‘Truck – 2443’) and as a result thereof, Mahesh Chand,
died on the spot.
3. Truck – 1861 was insured with The Oriental Insurance Company
Limited, whereas Truck – 2443 was insured with ICICI Lombard General
Insurance Company Limited.
4. Following the death of the deceased – Mahesh Chand, two
separate claim petitions came to be filed before the learned Tribunal:
(1) Claim Petition No.93/2007 was preferred by the parents of the
deceased claiming a compensation of Rs.9,83,600/- and (2) Claim
Petition No.109/2007 was instituted by the wife of the deceased,
seeking compensation of Rs.30,09,000/-.
5. The owner of Truck – 1861 as also the driver and owner of Truck –
2443 were proceeded ex-parte.
6. The Oriental Insurance Company filed reply to the claim petitions
stating therein that the accident occurred due to negligence of the
deceased himself. It was also contended that he was not having a valid
license and consequently, denied its liability to pay any compensation.
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7. The ICICI Lombard General Insurance Company (hereinafter to be
referred as ‘Insurance Company’) also filed reply to the claim petitions
stating therein that there was no negligence of driver of Truck – 2443
and in the investigation, Police has also found that the accident
occurred due to negligence of the deceased i.e. driver of Truck – 1861.
Ultimately, it also denied its liability to pay the compensation.
8. The learned Tribunal, vide impugned judgment and award, partly
allowed the claim petitions and awarded a sum of Rs.5,53,400/- along
with interest @ 8% per annum from the date of filing of claim petitions,
in favour of the claimants. The learned Tribunal found that there was
negligence on the part of the drivers of both Truck – 1861 & Truck –
2443 and held it to be a case of contributory negligence. However, the
learned Tribunal further held that the driver, owner and insurance
company of Truck – 2443 are jointly and severally liable to pay the
compensation, whereas dismissed the claim petitions against the owner
of Truck – 1861 and Oriental Insurance Company.
9. Being aggrieved by and dissatisfied with the aforesaid judgment
and award dated 08.01.2016, the present S.B. Civil Miscellaneous
Appeal Nos. 6070/2016 & 3023/2016, have been filed by the claimants
seeking enhancement of the amount of compensation. On the other
hand, S.B. Civil Miscellaneous Appeal No.1386/2016, has been
preferred on behalf of the Insurance Company assailing the judgment
and award dated 08.01.2016.
S.B. Civil Miscellaneous Appeal No. 6070/2016
S.B. Civil Miscellaneous Appeal No. 3023/2016
10. The instant appeals have been preferred on behalf of the
claimants.
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11. Learned counsel for the claimants made the following
submissions:-
i. While calculating the compensation amount for loss of
dependency, the learned Tribunal has considered a notional
monthly income of Rs.2100/- of the deceased, however it
should have been calculated by considering the minimum
wages applicable for the skilled labour at the relevant point of
time, which was Rs.81/- per day.
ii. The learned Tribunal has granted only Rs.50,000/- as a lump-
sum amount to the parents for the loss of consortium instead
of granting compensation of Rs.40,000/- to each of the
parents, under the said head.
iii. Lastly, the learned Tribunal has erred in omitting to grant
compensation under the conventional head of loss of estate.
12. Learned counsel appearing for the Insurance Company, while
opposing the aforesaid submissions, stated that:-
i. The learned Tribunal has erred in making addition of 50% in
the income of the deceased towards future prospects, whereas
considering the age of the deceased i.e., 27 years, addition
@40% is required to be made as per the guidelines laid down
by the Hon’ble Supreme Court in the case of National
Insurance Company Ltd. Vs. Pranay Sethi reported in
(2017) 16 SCC 680.
ii. The learned Tribunal has awarded Rs.25,000/- towards funeral
expenses, instead of Rs.15,000/-, which should also be
reduced.
13. Heard learned counsel for the parties and perused the material
available on record.
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14. The first contention of the learned counsel for the claimants is
regarding calculation of monthly income of the deceased. From a
perusal of the material available on record and the impugned judgment,
it is revealed that no documentary evidence was produced by the
claimants to prove the income of the deceased. In the said
circumstances, the learned Tribunal determined Rs.2,100/- as his
monthly income.
15. The Hon’ble Supreme Court in the case of Govind Yadav Vs. The
New India Insurance Company Limited, reported in (2011) 10
SCC 683, has held that in absence of any evidence, the loss of earning
should be determined on the basis of minimum wages prevalent at the
relevant point of time. For ready reference, the relevant paragraphs of
the said judgment are reproduced below:-
“20. A brief recapitulation of the facts shows that in
the petition filed by him for award of compensation, the
Appellant had pleaded that at the time of accident he
was working as Helper and was getting salary of Rs.
4,000/- per month. The Tribunal discarded his claim on
the premise that no evidence was produced by him to
prove the factum of employment and payment of salary
by the employer. The Tribunal then proceeded to
determine the amount of compensation in lieu of loss of
earning by assuming the Appellant’s income to be Rs.
15,000/- per annum. On his part, the learned Single
Judge of the High Court assumed that while working as
a Cleaner, the Appellant may have been earning Rs.
2,000/- per month and accordingly assessed the
compensation under the first head.
21. Unfortunately, both the Tribunal and the High
Court overlooked that at the relevant time minimum
wages payable to a worker were Rs. 3,000/- per
month. Therefore, in the absence of other cogent
evidence, the Tribunal and the High Court should have
determined the amount of compensation in lieu of loss
of earning by taking the Appellant’s notional annual
income as Rs. 36,000/- and the loss of earning on
account of 70% permanent disability as Rs. 25,200/-
per annum.”
In view of the above, the learned Tribunal was not justified in
assessing the monthly income of the deceased as Rs.2,100/-. The
monthly income of the deceased ought to have been calculated as per
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the minimum wages notified by the State Government at the relevant
point of time. Undisputedly, the minimum wages prevailing at the time
of accident for skilled labour were Rs.81/- per day, therefore, the
monthly income of the deceased would amount to Rs. 2430/-.
16. The second contention of the learned counsel for the claimants is
that the learned Tribunal has awarded compensation of Rs.50,000/-
only, as a lump-sum amount to the parents for the loss of consortium,
instead of awarding Rs.40,000/- to each of them.
16.1 From a perusal of the award, it is clear that a lump – sum amount
of Rs. 50,000/- has been awarded to the parents of the deceased under
the head of loss of consortium and an additional sum of Rs.50,000/- has
been awarded to the wife of the deceased under the said head.
16.2 The Hon’ble Supreme Court in the cases of Pranay Sethi (supra)
and Magma General Insurance Company Vs. Nanuram @ Churu
Ram & Ors. reported in (2018) 18 SCC 130, has held that each
dependant is entitled to get compensation of Rs. 40,000/- for the loss of
consortium.
16.3 Therefore, in the light of above judicial precedents, this Court
deems it justified to grant Rs. 40,000/- to each of the claimants.
17. The third contention raised by the learned counsel for the
claimants is that no compensation has been awarded by the learned
Tribunal under the conventional head of loss of estate. In light of the
principles laid down in Pranay Sethi (supra), the claimants are also
entitled to Rs.15,000/- under the head of loss of estate.
18. Moreover, this Court also finds substance in the submissions made
by the learned counsel for the respondents. Therefore, as per the
guidelines laid down by the Hon’ble Supreme Court in the case of
Pranay Sethi (supra), this Court deems it justified to direct that:-
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[2026:RJ-JP:11944] (8 of 16) [CMA-6070/2016]i. Considering the age of the deceased at the time of accident
i.e., 27 years, addition @40% will be made in the income of
the deceased towards future prospects, instead of addition
@50%.
ii. The compensation under the head of funeral expenses will be
Rs.15,000/- instead of Rs.25,000/-.
19. Therefore, in light of the above discussion, the compensation
payable to the claimants is reassessed as under:-
S.No. Particular Amount assessed
1. Monthly Income Rs.81 x 30 = Rs.2,430/-
2. Annual Income Rs.2,430 x 12 = Rs.29,160/-
3. According to the age of
the deceased i.e. 27 Rs.29,160 x 17 = Rs.4,95,720/-
years, multiplier of 17
to be applied
4. As per dependency,
Rs.4,95,720 – Rs.1,65,240
1/3rd income to be
deduced for personal = Rs.3,30,480/-
expenses of the
deceased (-)
5. Add 40% towards Rs.3,30,480 + Rs.1,32,192
future prospects (+) = Rs.4,62,672/-
6. Total Loss of Rs.4,62,672/-
Dependency
7. Loss of Consortium Rs.40,000/- x 3
= Rs.1,20,000/-
8. Loss of estate Rs.15,000/-
9. Funeral Expenses Rs.15,000/-
Total amount of Rs.6,12,672/-
compensation
(S.No. 6+7+8+9)
Less amount awarded Rs.5,53,400/-
by the Tribunal (-)
Enhanced amount of Rs.59,272/-
compensation
20. Accordingly, the amount of compensation as awarded by the
learned Tribunal is enhanced by Rs.59,272/-. This shall carry interest at
the rate awarded in the impugned judgment and award.
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S.B. Civil Miscellaneous Appeal No. 1386/2016
21. The instant appeal has been preferred on behalf of the Insurance
Company challenging the legality and validity of the impugned
judgment and award dated 08.01.2016.
22. Learned counsel for the appellant submitted that there was no
sort of negligence on the part of driver of Truck – 2443, which is well
established from the Final Report / Charge-sheet (Exhibit-3), which
indicates that the Police, after investigation, has found offences, under
Section(s) 279, 337 & 304A of IPC, proved only against the deceased.
Learned counsel further submitted that the said charge-sheet has been
produced by the claimants themselves. It is also submitted that once
the Police, after filing of the charge-sheet, has concluded that the
deceased himself was negligent, the learned Tribunal has erred in
fastening the liability on the appellant herein. It is further contended by
learned counsel that even the respondent No.5 i.e. Oriental Insurance
Company, insurer of the vehicle which deceased was driving at the time
of accident, in its reply before the learned Tribunal had alleged
negligence on the part of the deceased himself and denied any sort of
liability.
22.1 Alternatively, it has been argued that the learned Tribunal fell in
error in holding the appellant, driver and owner of the Truck – 2443
liable to pay the full compensation so awarded, despite having come to
the conclusion that the drivers of both the vehicles were negligent and
responsible for the occurrence of the incident. It is also submitted that
the findings of the learned Tribunal holding drivers of both the vehicles
negligent for the occurrence of the accident, has not been challenged by
the claimants and the Oriental Insurance Company, therefore, the said
finding has attained finality qua them and consequently, the
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compensation so awarded by the learned Tribunal should be reduced in
proportion to the negligence of the deceased.
23. Learned counsel appearing for respondent Nos.1 to 3 i.e.
claimants and learned counsel for respondent No.5 i.e. Oriental
Insurance Company opposed the submissions made by learned counsel
for the appellant hereinabove and supported the findings given by the
learned Tribunal.
24. Heard learned counsel for the parties and perused the material
available on record.
25. Learned counsel for the appellant, in his first contention, has
sought to deny the appellant’s liability merely on the basis of the
charge-sheet submitted by Police and reply filed on behalf of the
Oriental Insurance Company.
26. The Hon’ble Supreme Court in the following judgments has
expounded that in motor accident claim matters, a claim Tribunal is not
strictly bound by the pleadings of the parties and as also 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 Bimla Devi and Ors. vs. Himachal Road Transport
Corporation and Ors., reported in (2009) 13 SCC 530, with regard
to the pleadings in a claim matter, the Hon’ble Supreme Court held as
under:-
“11. While dealing with a claim petition in terms of
Section 166 of the Motor Vehicles Act, 1988, a Tribunal
stricto sensu is not bound by the pleadings of the
parties; its function being to determine the amount of
fair compensation in the event an accident has taken
place by reason of negligence of that driver of a motor
vehicle. It is true that occurrence of an accident having
regard to the provisions contained in Section 166 of the
Act is a sine qua non for entertaining a claim petition
but that would not mean that despite evidence to the
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[2026:RJ-JP:11944] (11 of 16) [CMA-6070/2016]taken place by reason of an accident caused by a motor
vehicle, the same would be ignored only on the basis of
a post mortem report vis-`a-vis the averments made in
a claim petition.”
(emphasis supplied)
Further, the Hon’ble Supreme Court in the case of Mangla Ram
vs. The Oriental Insurance Co. Ltd. and Ors., reported in (2018) 5
SCC 656, has propounded as under:-
“27. Another reason which weighed with the High
Court to interfere in the First Appeal filed by
Respondent Nos. 2 & 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 No. 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 No. 2. This Court in a
recent decision in Dulcina Fernandes (supra), 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)
In Mathew Alexander vs. Mohammed Shafi and Anr.,
reported in (2023) 13 SCC 510, the Hon’ble Supreme Court also held
as follows:-
“12. In this context, we could refer to judgments of
this Court in the case of N.K.V. Bros. (P) Ltd. v. M.
Karumai Ammal, AIR 1980 SC 1354, wherein the plea
that the criminal case had ended in acquittal and that,
therefore, the civil suit must follow suit, was rejected.
It was observed that culpable rashness Under Section
304-A of Indian Penal Code is more drastic than
negligence under the law of torts to create liability.
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[2026:RJ-JP:11944] (12 of 16) [CMA-6070/2016]Similarly, in Bimla Devi v. Himachal RTC (“Bimla
Devi”), (2009) 13 SCC 530, it was observed that in a
claim petition filed Under Section 166 of the Motor
Vehicles Act, 1988, the Tribunal has to determine the
amount of fair compensation to be granted in the event
an accident has taken place by reason of negligence of
a driver of a motor vehicle. 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.”
(emphasis supplied)
27. From the above, it is clear that while deciding a claim petition, in
motor accident claim matters, the function of the claim Tribunal is to
determine the fair and just compensation payable to the claimants of
deceased and this cannot be done on the basis of single piece of
evidence rather a holistic view of all the oral and documentary
evidences, produced by the parties, is to be taken into consideration to
arrive at a conclusion.
28. A bare perusal of the impugned judgment and the record reveals
that as per ‘Naksha Mauka’ report (Exhibit – 4), it is clear that both the
vehicles were running in the middle of the road and collided with each
other. Further, the Mechanical Examination Reports of both the vehicles
(Exhibit – 7 & 8), also reveal that there was a head on collision of both
the trucks and front part of both the vehicles got damaged. Based on
the aforesaid documentary evidences, the learned Tribunal concluded
that the drivers of both the vehicles were negligent and as a result of
which, the accident occurred. Even the eye witness, AW-4, in his cross-
examination has stated that there might be a fault of the deceased also
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in the occurrence of the said incident but the greater fault was of the
driver of Truck – 2443.
29. In view of the above, this Court finds that the learned Tribunal
had evaluated whole of the evidence available on record, both oral and
documentary, including the police papers such as FIR (Exhibit-1),
Charge-sheet (Exhibit-3), Naksha Mauka (Exhibit-4), Mechanical
Examination Reports of both the vehicles (Exhibit-7 & 8) in concluding
that accident took place due to negligence of the drivers of both the
vehicles. Therefore, the impugned findings of the learned Tribunal upon
issue No.1 cannot be faulted and are affirmed accordingly.
30. However, the alternate contention of learned counsel for the
appellant that once the learned Tribunal held that the accident occurred
as a result of negligence of drivers of both the vehicles then the
appellant, driver and owner of Truck – 2443 could not have been
burdened with the liability to pay whole of the compensation, deserves
to be accepted.
31. The Hon’ble Supreme Court in the case of Khenyei v. New India
Assurance Company Ltd. & Ors. reported in (2015) 9 SCC 273, has
explained the distinction between contributory and composite
negligence, holding that in the case of contributory negligence, a person
who has himself contributed to the accident cannot claim compensation
for the injuries sustained by him in the accident to the extent of his own
negligence. The relevant portion of the aforesaid judgment is
reproduced hereinbelow:-
“15. There is a difference between contributory and
composite negligence. In the case of contributory
negligence, a person who has himself contributed to
the extent cannot claim compensation for the injuries
sustained by him in the accident to the extent of his
own negligence; whereas in the case of composite
negligence, a person who has suffered has not
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[2026:RJ-JP:11944] (14 of 16) [CMA-6070/2016]combination of negligence of two or more other
persons. This Court in T.O. Anthony v. Karvarnan and
Ors. [2008 (3) SCC 748] has held that in case of
contributory negligence, injured need not establish the
extent of responsibility of each wrong doer separately,
nor is it necessary for the court to determine the extent
of liability of each wrong doer separately. It is only in
the case of contributory negligence that the injured
himself has contributed by his negligence in the
accident. Extent of his negligence is required to be
determined as damages recoverable by him in respect
of the injuries have to be reduced in proportion to his
contributory negligence. The relevant portion is
extracted hereunder:
(SCC pp.750-51, paras 6-7)
“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 wrong doers, it is said that the person
was injured on account of the composite
negligence of those wrong-doers. In such a
case, each wrong doer, 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 wrong-doer separately, nor is it
necessary for the court to determine the
extent of liability of each wrong-doer
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 of 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 stands reduced
in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved
in an accident, and one of the drivers claims
compensation from the other driver alleging
negligence, and the other driver denies
negligence or claims that the injured
claimant himself was negligent, then it
becomes necessary to consider whether the
injured claimant was negligent and if so,
whether he was solely or partly responsible
for the accident and the extent of his
responsibility, that is his contributory
negligence. Therefore where the injured is
himself partly liable, the principle of
‘composite negligence’ will not apply nor can
there be an automatic inference that the
negligence was 50:50 as has been assumed
in this case. The Tribunal ought to have
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[2026:RJ-JP:11944] (15 of 16) [CMA-6070/2016]
examined the extent of contributory
negligence of the Appellant and thereby
avoided confusion between composite
negligence and contributory negligence. The
High Court has failed to correct the said
error.”
The decision in T.O. Anthony v. Karvarnan and Ors.
(supra) has been relied upon in Andhra Pradesh State
Road Transport Corporation and Anr. v. K. Hemlatha
and Ors. [2008 (6) SCC 767].
16. In Pawan Kumar and Anr. v. Harkishan Dass
Mohan Lal and Ors. [2014 (3) SCC 590], the decisions
in T.O. Anthony (supra) and Hemlatha (supra) have
been affirmed, and this Court has laid down that where
Plaintiff/claimant himself is found to be negligent jointly
and severally, liability cannot arise and the Plaintiff’s
claim to the extent of his own negligence, as may be
quantified, will have to be severed. He is entitled to
damages not attributable to his own negligence…………”
(emphasis supplied)
32. The learned Tribunal, in the case in hand, held that it is a case of
contributory negligence and has also relied upon the aforesaid case of
Khenyei (supra). However, the learned Tribunal grossly failed to make
a distinction between the composite negligence and contributory
negligence and therefore, fell in error in holding that the entire liability
to pay compensation falls on the driver, owner and Insurance Company
of Truck – 2443. The learned Tribunal ought to have determined the
extent of negligence and ought to have reduced the compensation
amount in proportion to deceased’s contributory negligence.
33. As a result of above discussion, the findings of the learned
Tribunal upon issue No.2 only to the extent of holding that claimants
can recover the full compensation amount from the date of filing of the
claim petition, jointly and severally from the appellant and respondent
Nos.6 & 7 herein (i.e., Insurance Company, driver and owner of Truck –
2443 respectively), is quashed and set aside.
34. Consequently, the claim petitions are remanded to the learned
Tribunal for a limited purpose to determine the negligence of the
deceased and thereafter reduce the compensation amount, as
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[2026:RJ-JP:11944] (16 of 16) [CMA-6070/2016]
reassessed by this Court in the appeals filed by the claimants and
mentioned in paragraph No.19 & 20 of this judgment, in proportion to
the negligence of the deceased.
35. The rest of the impugned judgment and award shall remain intact.
36. It is expected from the learned Tribunal to decide the case as
early as possible, preferably within a period of two months from the
date of appearance of the parties, after giving opportunity of hearing to
the parties.
37. Parties are directed to appear before the learned Tribunal on
25.04.2026.
38. The appeals are disposed of in the above terms.
39. All pending applications, if any, also stand disposed of.
40. Registry is directed to send back the record of the case to the
concerned Tribunal forthwith.
(SANDEEP TANEJA),J
SAHIL SONI /
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