Partly allowed

Savitri Devi and Anr. v. Lakshmi Devi and Ors.

Rajasthan HC1 Apr 2026CMA/6070/2016

Case brief

AI extract

What is this about?

This judgment enhances motor accident compensation calculated based on minimum wages and reduces liability where contributory negligence exists. The court remanded the case to determine the deceased's negligence share and adjust compensation accordingly.

What did the court decide?

Compensation enhanced by Rs. 59,272; claim for full joint and several liability of ICCI respondent quashed and case remanded to determine deceased's negligence share.

Savitri Devi and Anr. Vs Lakshmi Devi and Ors. — Motor Accident Claims | Rajasthan HC (2026)

¶1

[2026:RJ-JP:11944]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶3

S.B. Civil Miscellaneous Appeal No. 6070/2016

¶4

Savitri Devi W/o Hajari Lal, R/o Dhani Choudhary Ki, Subhash Chowk, Tan- Bansur, Distt. Alwar, Rajasthan

¶5

Hajari Lal S/o Cheemaram, R/o Dhani Choudhary Ki, Subhash Chowk, Tan- Bansur, Distt. Alwar, Rajasthan

¶6

----Claimants/Appellants

¶7

Versus

¶8

Lakshmi Devi W/o O.P. Khandelwal Owner Of Vehicle No. RJ141G-1861, R/o Plot No. B-1, Ratan Nagar, Dhehar Ka Balaji, Jaipur, Rajasthan

¶9

The Oriental Insurance Company Limited, Through Zonal Manager, Insurer Of Vehicle No.RJ14-1G-1861, Zonal Office, 70, Panchvati, Alwar, Rajasthan

¶10

Pappuram S/o Harigaram, Driver Of Vehicle No.RJ19-GA-2443, R/o Adarsh Nagar, Khara, Tehsil Phalodi, Distt. Jodhpur, Rajasthan

¶11

Bhanwar Lal S/o Harigaram, Owner Of Vehicle No.RJ19-GA2443, R/o Adarsh Nagar, Khara, Tehsil Phalodi, Distt. Jodhpur, Rajasthan

¶12

Manager, ICICI Lombard General Insurance Company Limited Insurer Of Vehicle No.RJ19-GA-2443, Head Office Bandra Kurle Complex, Mumbai Branch Office- Jodhpur, Rajasthan

¶13

----Non-Claimants/Respondents

¶14

Prem Devi W/o Late Mahesh Chand, R/o Dhani Choudhary Ki, Subhash Chowk, Tan- Bansur, Distt. Alwar, Rajasthan

¶15

----Proforma/Respondent

¶16

Connected With

¶17

S.B. Civil Miscellaneous Appeal No. 1386/2016

¶18

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.

¶19

----Non-Claimant/Appellant

¶20

Versus

¶21

Savitri Devi W/o Hajari Lal, R/o Dhani Choudhary Ki, Subhash Chowk, Tan- Bansur, Distt. Alwar, Rajasthan

¶22

Hajari Lal S/o Chimaram, R/o Dhani Choudhary Ki, Subhash Chowk, Tan- Bansur, Distt. Alwar, Rajasthan

¶23

Prem Devi W/o Late Maheshchand, R/o Dhani Choudhary Ki, Subhash Chowk, Tan- Bansur, Distt. Alwar, Rajasthan

¶24

----Claimants/Respondents

¶25

Laxmi Devi W/o O.P. Khandelwal, R/o Plot No. B-1, Ratan Nagar, Dhahar Ka Balaji, Jaipur, Rajasthan (Owner of Vehicle No.RJ14-1G1861)

¶26

The Oriental Insurance Company Limited, Through Regional Manager, Regional Office, 70, Panchvati, Alwar, Rajasthan (Insurer of Vehicle No.RJ14-1G-1861)

¶27

Pappuram S/o Harigaram, R/o Adarsh Nagar, Khara, Tehsil Falodi, Distt. Jodhpur, Rajasthan (Driver of Vehicle No.RJ19-GA-2443)

(2 of 16)

[2026:RJ-JP:11944]

[CMA-6070/2016]

Bhawarlal S/o Harigaram, R/o Adarsh Nagar, Khara, Tehsil Falodi, Distt. Jodhpur, Rajasthan (Owner of Vehicle No.RJ19-GA-2443)

¶32

----Non-Claimants/Respondents

¶33

S.B. Civil Miscellaneous Appeal No. 3023/2016

¶34

Prem Devi W/o Late Mahesh Chand, Aged about 32 years, R/o Dhani Choudhary Ki, Subhash Chowk, Tan- Bansur, Distt. Alwar, Rajasthan

¶35

----Claimant/Appellant

¶36

Versus

¶37

Laxmi Devi W/o O.P. Khandelwal, R/o Plot No. B-1, Ratan Nagar, Dehar Ka Balaji, Jaipur, Rajasthan (Owner of Vehicle No.RJ14-1G1861)

¶38

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.RJ19GA-2443)

¶39

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)

¶40

----Non-Claimants/Respondents

¶41

For Appellant(s)	:	Mr. Jai Kisha No.6070/201 No.1386/201	n Yogi (appellant 6 & respondent 6)	in CMA in CMA
		Mr. Gaurav No.3023/201 No.1386/201	Gupta (appellant 6 & respondent 6)	in CMA in CMA
For Respondent(s)	:	Mr. Chand (respondent appellant in C	erdeep Singh in CMA No.6070/ MA No.1386/2016)	Jodha 2016 &
		Mr. Kinshuk No.6070/201 Mr. Sandeep No.1386/201	Jain (respondent 6 & CMA No.3023/2 Jain (respondent 6 & CMA No.3023/2	in CMA 016) in CMA 016)

¶42

HON'BLE MR. JUSTICE SANDEEP TANEJA

¶43

Judgment

¶44

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

[2026:RJ-JP:11944]

[CMA-6070/2016]

(3 of 16)

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.

¶49

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.

¶50

Truck - 1861 was insured with The Oriental Insurance Company Limited, whereas Truck - 2443 was insured with ICICI Lombard General Insurance Company Limited.

¶51

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/-.

¶52

The owner of Truck - 1861 as also the driver and owner of Truck -

¶53

2443 were proceeded ex-parte.

¶54

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.

(4 of 16)

[2026:RJ-JP:11944]

[CMA-6070/2016]

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.

¶59

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.

¶60

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.

¶61

S.B. Civil Miscellaneous Appeal No. 6070/2016

¶62

S.B. Civil Miscellaneous Appeal No. 3023/2016

¶63

The instant appeals have been preferred on behalf of the claimants.

(5 of 16)

[2026:RJ-JP:11944]

[CMA-6070/2016]

Learned counsel for the claimants made the following submissions:-

¶68

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.

¶69

ii. The learned Tribunal has granted only Rs.50,000/- as a lumpsum 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.

¶70

iii. Lastly, the learned Tribunal has erred in omitting to grant compensation under the conventional head of loss of estate.

¶71

Learned counsel appearing for the Insurance Company, while opposing the aforesaid submissions, stated that:-

¶72

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 .

¶73

ii. The learned Tribunal has awarded Rs.25,000/- towards funeral expenses, instead of Rs.15,000/-, which should also be reduced.

¶74

Heard learned counsel for the parties and perused the material available on record.

[2026:RJ-JP:11944]

[CMA-6070/2016]

(6 of 16)

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.

¶79

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:-

¶80

“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.

¶81

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.”

¶82

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

(7 of 16)

[2026:RJ-JP:11944]

[CMA-6070/2016]

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/-.

¶87

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.

¶88

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.

¶89

16.2 The Hon'ble Supreme Court in the cases of Pranay Sethi (supra)

¶90

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.

¶91

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.

¶92

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:-

(8 of 16)

[2026:RJ-JP:11944]

[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%.

¶97

ii. The compensation under the head of funeral expenses will be Rs.15,000/- instead of Rs.25,000/-.

¶98

Therefore, in light of the above discussion, the compensation

¶99

payable to the claimants is reassessed as under:-

¶100

S.No.	Particular	Amount assessed
1.	MonthlyIncome	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 years, multiplier of 17 to be applied	Rs.29,160 x 17 = Rs.4,95,720/-
4.	As per dependency, 1/3^rdincome to be deduced for personal expenses of the deceased(-)	Rs.4,95,720 – Rs.1,65,240 = Rs.3,30,480/-
5.	Add 40% towards future prospects (+)	Rs.3,30,480 + Rs.1,32,192 = Rs.4,62,672/-
6.	Total Loss of Dependency	Rs.4,62,672/-
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 compensation (S.No. 6+7+8+9)	Rs.6,12,672/-
	Less amount awarded bythe Tribunal(-)	Rs.5,53,400/-
	Enhanced amount of compensation	Rs.59,272/-

¶101

Accordingly, the amount of compensation as awarded by the

¶102

learned Tribunal is enhanced by Rs.59,272/-. This shall carry interest at the rate awarded in the impugned judgment and award.

[2026:RJ-JP:11944]

[CMA-6070/2016]

(9 of 16)

S.B. Civil Miscellaneous Appeal No. 1386/2016

¶107

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.

¶108

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

(10 of 16)

[2026:RJ-JP:11944]

[CMA-6070/2016]

compensation so awarded by the learned Tribunal should be reduced in proportion to the negligence of the deceased.

¶113

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.

¶114

Heard learned counsel for the parties and perused the material available on record.

¶115

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.

¶116

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.

¶117

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:-

¶118

“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 effect that death of the claimant's predecessor had

(11 of 16)

[2026:RJ-JP:11944]

[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.”

¶123

(emphasis supplied)

¶124

Further, the Hon’ble Supreme Court in the case of Mangla Ram

¶125

vs. The Oriental Insurance Co. Ltd. and Ors. , reported in (2018) 5

¶126

SCC 656, has propounded as under:-

¶127

“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 chargesheet 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.”

¶128

(emphasis supplied)

¶129

In Mathew Alexander vs. Mohammed Shafi and Anr.,

¶130

reported in (2023) 13 SCC 510 , the Hon’ble Supreme Court also held as follows:-

¶131

“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.

(12 of 16)

[2026:RJ-JP:11944]

[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.”

¶136

(emphasis supplied)

¶137

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.

¶138

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 crossexamination has stated that there might be a fault of the deceased also

[2026:RJ-JP:11944]

[CMA-6070/2016]

(13 of 16)

in the occurrence of the said incident but the greater fault was of the driver of Truck - 2443.

¶143

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.

¶144

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.

¶145

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:-

¶146

“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 contributed to the accident but the outcome of

(14 of 16)

[2026:RJ-JP:11944]

[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)

¶151

“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.

¶152

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

[2026:RJ-JP:11944]

[CMA-6070/2016]

(15 of 16)

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.”

¶157

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].

¶158

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…………”

¶159

(emphasis supplied)

¶160

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.

¶161

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.

¶162

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

(16 of 16)

[2026:RJ-JP:11944]

[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.

¶167

The rest of the impugned judgment and award shall remain intact.

¶168

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.

¶169