Patna High Court
The Branch Manager, United India ... vs Most. Malti Devi And Ors on 4 April, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.386 of 2017
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The Branch Manager, United India Insurance Company Ltd. Chapra through the
Chief Regional Manager, United India Insurance Co.Ltd., Regional Office, Chanakya
Commercial Complex (3rd Floor) R-Block, Patna-1 ... ... Appellant
Versus
1. Most. Malti Devi wife of Late Raj Kishore Prasad
2. Lallu Prasad son of Late Raj Kishore Prasad
3. Pooja Kumari D/O Late Raj Kishore Prasad
4. Ganesh Prasad son of Late Raj Kishore Prasad
5. Chhotu Kumar son of Late Raj Kishore Prasad
Both 4 and 5 are minor and represented through their natural guardian Mother Most.
Malti Devi.
All Resident of village-Nakata Diyara, P.O.- Dighaghat, P.S.-Digha, Dist-Patna,
presently residing at Mohalla- Haripur Colony, Digha, P.S-Digha, P.O-Dighaghat,
Dist-Patna ... ... Respondents
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Appearance :
For the Appellant/s : Mr. R.K. Bikram, Advocate
For the Respondent nos. 1-5 : Mr. Mukesh Prasad Singh, Advocate
For the Respondent no. 6 : Mr. D.K. Sinha, Senior Advocate
: Mr. Alexander Ashok, Advocate
For the Respondent no.7 : Mrs. Renu Jha, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
Date: 04-04-2025
Heard the learned counsels for the appellant as
well as the learned counsels for the respondents.
2. This Miscellaneous Appeal has been filed
under Section 173 of the Motor Vehicles Act, 1988 (hereinafter
referred to as "Act") on behalf of United India Assurance
Company Ltd., (hereinafter referred to as "Insurance
Company") against the Judgment dated 14.12.2015 and Award
dated 06.01.2016 passed by learned Additional District Judge
1st-cum-Motor Vehicle Accident Claims Tribunal, Saran,
Chapra (hereinafter referred to as "learned Tribunal") in Claim
Case No. 56 of 2006 where by the claim of the Respondent No.
1 has been allowed and the Appellant- Insurance Company has
been direct to pay compensation of Rs. 9,20,660/- with interest
Patna High Court MA No.386 of 2017 dt.04-04-2025
2/17
@ 6% per annum from the date of filing of claim case till the
date of payment. However the appellant has been granted to
release the amount from the owner of the vehicle, if it is found
that there is violation of policy condition.
3. The brief facts of the claim case is that on
14.03.2006
deceased Raj Kishore Prasad aged about 38 years
met with a fatal accident on 14.03.2006 at 9 PM while the
deceased Raj Kishore Prasad was coming to Chapra with
Narendra Prasad on a jeep and when they reached around 3 km
away from Dighwara towards Chapra at village Jhawa on N.H.
19, the jeep on which the deceased Raj Kishore Prasad was
traveling met with an accident causing the death of Raj Kishore
Prasad who is the husband of applicant Malti Devi in the instant
case. He was rushed to PMCH where he was declared dead by
the doctor. The vehicle in which deceased Raj Kishore Prasad
was traveling was registered bearing registration No. BR-1P-
9438.
4. The claimant has four children. The applicant
and her children were totally dependent upon the deceased Raj
Kishore Prasad who was an employee of Electricity Board and
was earning monthly income of Rs. 15,000/- out of which the
deceased used Rs. 10,000/- to give Respondent No.1 /claimant
Patna High Court MA No.386 of 2017 dt.04-04-2025
for maintenance and education of their children. It is also
claimed that due to the fatal accident of her husband she has
suffered pecuniary loss and her children are facing a financial
crisis. The claimant stated that she is also suffering from mental
agony and loss of consortium and it was expected that her
deceased husband's monthly income would have been increased
up to a high pay-scale. Hence she claimed an amount of Rs.
22,00,000/- (Twenty two lakh rupees only/-) as compensation
for the death of her husband. After filing of the claim case,
notices were issued to the Opposite parties i.e. the owner of the
vehicle and Insurance Company United India Insurance
Company, through its branch Manager.
5. O.P. No. 1 & 2 being the owner of the
offending vehicle appeared and filed Insurance certificate
bearing policy No. of the vehicle in question which was
210901/31/05/01119. The policy was valid from 19.10.2003 to
16.10.2006 and the date of occurrence of the accident
24.03.2006 which meant that the vehicle was covered under
insurance. As such, the owner was exempted from the liabilities
of payment|of compensation as the vehicle in question was
covered under insurance.
6. The appellant/ O.P. No. 3 United India
Patna High Court MA No.386 of 2017 dt.04-04-2025
Insurance Company filed their written statement on 27.05.2010
alleging therein that they were exempted from the liability as
there was violation of the policy condition and the vehicle in
question was not validly insured. Hence O.P. No.1 and 2 were
liable for payment of compensation.
7. On the basis of the pleadings of the parties the
trial court framed the following issues:-
i. Is the claim petition as filed and framed
maintainable?
ii. Whether the deceased died in motor
vehicle accident due to rash and negligent
driving of the driver of the offending vehicle
no. BR-1P-9438?
iii. Whether the claimants are entitled to get
compensation for the death of deceased Raj
Kishore Prasad? If so from whom and to
what extent?
iv. What other relief or reliefs the
petitioners are entitled to?
8. To substantiate her case the claimant examined
oral witnesses and produced documentary evidence. The
witnesses examined on behalf of the claimant/respondent are-
CW-l Ram Daran Rai, CW-2 Most. Malti Devi w/o deceased
Raj Kishore Prasad. In addition to this documentary evidence
were produced as Ext.1 certified copy of F.I.R. lodged against
the driver of the offending vehicle. Ext.2 is pay slip issued by
department of deceased Raj Kishore Prasad, Ext. 3 is
Patna High Court MA No.386 of 2017 dt.04-04-2025
Postmortem report of deceased and Ext.4 is photocopy of Policy
paper.
9. After hearing the parties and going through the
material on record, the learned Tribunal held that the deceased
died due to accident caused by rash and negligent driving of the
driver as was shown in the charge-sheet filed by the police, who
was holding valid driving license on the date of accident, of the
aforesaid accidental vehicle. The tribunal held that the claim of
the claimant was maintainable as the cause of death of the
deceased was shown to have been caused by the rash and
negligent driving of the offending vehicle. The vehicle in
question was duly insured with the appellant/Insurance
Company on the material date of the accident. The Tribunal also
noted that the deceased was the sole earning member of his
family and he was likely to get a higher salary after promotion.
10. Thus, the Insurance Company was made
accountable to pay the compensation amount to the claimants
under the following heads:
S. Head Calculation Compensatio
No. n
1. Monthly salary of - Rs. 6979/-
the deceased
2. Future Prospects Addition of Rs. 8943/-
30% of
income of
Patna High Court MA No.386 of 2017 dt.04-04-2025
deceased =
Rs.6979 +
Rs.2064/-
3. Annual Income of Rs. 8943 X 12 Rs.1,07,316/-
deceased
4. 1/3rd deduction Rs. 1,07,316 Rs. 61,944/-
towards personal -Rs. 35,772
and living
expenses
5. Multiplier 15 (since age 15 X Rs.
of deceased 61,944= Rs.
was between 9,19,160/-
41-45 years)
6. Loss of Rs. 5000/-
dependency
7. Funeral expenses Rs. 5000/-
8. Loss of estate Rs. 5000/-
9. Total Rs.9,20,660/-
Compensation
payable
11. The appellants being not satisfied and
aggrieved by the impugned judgment and award, filed the
present appeal for setting aside the impugned Judgment dated
14.12.2015 and Award dated 06.01.2016 passed by the learned
Tribunal.
12. Learned counsel for the appellant/Insurance
Company has submitted that the learned Tribunal erred while
passing the impugned judgment as there was violation of the
policy conditions by the deceased and that the deceased died
due to his own carelessness. Learned counsel submitted that for
Patna High Court MA No.386 of 2017 dt.04-04-2025
the alleged accident an F.I.R. was lodged on the fardbeyan of
one of the injured Narendra Prasad bearing P.S. Case No. 28 of
2006 and from his fardbeyan it appeared that the driver of the
jeep was not at fault for the alleged accident nor was he
negligent in any manner, rather the accident took place due to
the rash and negligent act of the driver of the Truck and this fact
has been supported in the final report of the police. The counsel
relied National Insurance Company Limited v. Pushpa Rana
decided into 2009 by Hon'ble Apex Court to submit that the
finding of the Learned Tribunal cannot be sustained. He further
submitted that the Learned Tribunal further failed to consider
that granting liberty of recovery to the Insurance company in
case of breach of policy conditions has been held to be bad and
illegal in various judgment of the Hon'ble Apex court as well as
under Article 142 of the Constitution of India. He further
submitted that the finding of the Learned Tribunal suffers from
non-application of mind and is beyond the materials on record.
He further submitted that the finding of the Learned Tribunal
that the death of the deceased was caused due to rash and
negligent driving of the driver of the jeep is contrary to the
F.I.R. and police report (Ext. 1 and 2 respectively). He further
submitted that the Learned Tribunal failed to consider that the
Patna High Court MA No.386 of 2017 dt.04-04-2025
factum of death by Motor accident has not been proved by
cogent evidence. He further submitted that the Ld. Tribunal
failed to consider and appreciate that the owner of the vehicle
has not complied Section 134 (c) of the Motor Vehicle Act as he
did not provide information regarding accident to the appellant
and the police has also not complied with the provisions of
Section 158(6) of the Motor Vehicle Act and as such the
appellant cannot be liable to pay compensation. The learned
counsel further submitted that the driving license and route
permit of the alleged vehicles have not been proved, which is
fatal to the case. He further submitted that the amount of
compensation is excessive as it is the case of contributory
negligence.
13. Learned counsel for the respondent on the
other hand submitted that the driver of the jeep was not vigilant
in driving and he was also responsible for the accident. He
relied on the decision of the Apex Court in Kaushnuma Begum
v. New India Assurance Co. Ltd., (2001) 2 SCC 9 wherein it
was held:
"11. It must be noted that the jurisdiction of
the Tribunal is not restricted to decide
claims arising out of negligence in the use
of motor vehicles. Negligence is only one of
the species of the causes of action for
making a claim for compensation in respect
Patna High Court MA No.386 of 2017 dt.04-04-2025
of accidents arising out of the use of motor
vehicles. There are other premises for such
cause of action.
12. Even if there is no negligence on the
part of the driver or owner of the motor
vehicle, but accident happens while the
vehicle was in use, should not the owner be
made liable for damages to the person who
suffered on account of such accident?
This question depends upon how far the
rule in Rylands v. Fletcher' can apply in
motor accident cases. The said rule is
summarised by Blackburn, J., thus:
"The true rule of law is that the person
who, for his own purposes, brings on his
land, and collects and keeps there anything
likely to do mischief if it escapes, must keep
it in at his peril, and, if he does not do so,
he is prima facie answerable for all the
damage which is the natural consequence
of its escape. He can excuse himself by
showing that the escape was owing to the
plaintiff's default, or, perhaps, that the
escape was the consequence of vis major, or
the act of God; but, as nothing of this sort
exists here, it is unnecessary to inquire what
excuse would be sufficient."
13. The House of Lords considered it and
upheld the ratio with the following dictum:
"We think that the true rule of law is that
the person who, for his own purposes,
brings on his land, and collects and keeps
there anything likely to do mischief if it
escapes, must keep it in at his peril, and, if
he does not do so, he is prima facie
answerable for all the damage which is the
natural consequence of its escape. He can
excuse himself by showing that the escape
was owing to the plaintiff's default, or,
Patna High Court MA No.386 of 2017 dt.04-04-2025
perhaps, that the escape was the
consequence of vis major, or the act of God;
but, as nothing of this sort exists here, it is
unnecessary to inquire what excuse would
be sufficient."
18. In Gujarat SRTC v. Ramanbhai
Prabhatbhai,(1987) 3 SCC 234 the
question considered was regarding the
application of the rule in cases arising out
of motor accidents. The observation made
by E.S. Venkataramiah, J. (as he then was)
can profitably be extracted here:
"Today, thanks to the modern civilization,
thousands of motor vehicles are put on the
road and the largest number of injuries and
deaths are taking place on the roads on
account of the motor vehicles accidents. In
view of the fast and constantly increasing
volume of traffic, the motor vehicles upon
the roads may be regarded to some extent
as coming within the principle of liability
defined in Rylands v. Fletcher'. From the
point of view of the pedestrian the roads of
this country have been rendered by the use
of the motor vehicles highly dangerous. 'Hit
and run' cases where the drivers of the
motor vehicles who have caused the
accidents are not known are increasing in
number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist whether negligently or not, he
or his legal representatives as the case may
be should be entitled to recover damages if
the principle of social justice should have
any meaning at all. In order to meet to
some extent the responsibility of the society
to the deaths and injuries caused in road
accidents there has been a continuous
agitation throughout the world to make the
Patna High Court MA No.386 of 2017 dt.04-04-2025
liability for damages arising out of motor
vehicles accidents as a liability without
fault."
19. Like any other common law principle,
which is acceptable to our jurisprudence,
the rule in Rylands v. Fletcher' can be
followed at least until any other new
principle which excels the former can be
evolved, or until legislation provides
differently. Hence, we are disposed to adopt
the rule in claims for compensation made in
respect of motor accidents".
14. The counsel further submitted that the ground
raised by the appellant that it was a case of contributory
negligence and that the Insurance company was not solely
responsible does not hold ground in the eye of law. For this he
relied on the case of Khenyei v. New India Assurance Co. Ltd.,
Civil Appeal No. 4244 of 2015 where it was held that:
"It is a case of composite negligence where
injuries have been caused to the claimants
by combined wrongful act of joint tort
feasors. In a case of accident caused by
negligence of joint tort feasors, all the
persons who aid or counsel or direct or join
in committal of a wrongful act, are liable.
In such case, the liability is always joint
and several. The extent of negligence of
joint tort feasors in such a case is
immaterial for satisfaction of the claim of
the plaintiff/claimant and need not be
determined by the court. However, in case
all the joint tort feasors are before the
court, it may determine the extent of their
Patna High Court MA No.386 of 2017 dt.04-04-2025
liability for the purpose of adjusting inter-
se equities between them at appropriate
stage. The liability of each and every joint
tort feasor vis a vis to plaintiff/claimant
cannot be bifurcated as it is joint and
several liability. In the case of composite
negligence, apportionment of compensation
between tort feasors for making payment to
the plaintiff is not permissible as the
plaintiff/claimant has the right to recover
the entire amount from the easiest
targets/solvent defendant.
What emerges from the aforesaid discussion
is as follows :
(i) In the case of composite negligence,
plaintiff/claimant is entitled to sue both or
any one of the joint tort feasors and to
recover the entire compensation as liability
of joint tort feasors is joint and several.
ii) In the case of composite negligence,
apportionment of compensation between
two tort feasors vis a vis the
plaintiff/claimant is not permissible. He can
recover at his option whole damages from
any of them.
(iii) In case all the joint tort feasors have
been impleaded and evidence is sufficient, it
is open to the court/tribunal to determine
inter se extent of composite negligence of
the drivers. However, determination of the
extent of negligence between the joint tort
feasors is only for the purpose of their
interse liability so that one may recover the
sum from the other after making whole of
payment to the plaintiff/claimant to the
extent it has satisfied the liability of the
other. In case both of them have been
impleaded and the apportionment/ extent of
their negligence has been determined by the
Patna High Court MA No.386 of 2017 dt.04-04-2025
court/tribunal, in main case one joint tort
feasor can recover the amount from the
other in the execution proceedings.
(iv) It would not be appropriate for the
court/tribunal to determine the extent of
composite negligence of the drivers of two
vehicles in the absence of impleadment of
other joint tort feasors. In such a case,
impleaded joint tort feasor should be left, in
case he so desires, to sue the other joint tort
feasor in independent proceedings after
passing of the decree or award."
15. The counsel further relied on the decision of
the Apex Court in IFFCO Tokio General Insurance Co. Ltd. v.
Geeta Devi & Ors., SLP (C) No. 19902 of 2023 to submit that
the ground raised by the appellant that there was a breach of
policy condition and hence the Insurance company was
exempted from paying compensation is not correct as the
Insurance Company was not able to fully prove that there was
some violation of the law. In the above stated case, the Apex
Court observed as follows:
Thereafter, in National Insurance Co. Ltd.
vs. Swaran Singh and others (2004) 3 SCC
297, a 3-Judge Bench of this Court dealt
with the interpretation of Section 149 of the
Act of 1988. The cases before the Bench
involved, amongst others, instances where
the driving licence produced by the driver
or owner of the vehicle was a fake one. The
Bench noted that Section 149(2)(a) opened
with the words:
Patna High Court MA No.386 of 2017 dt.04-04-2025
'that there has been a breach of a specified
condition of the policy', which would imply
that the insurer's defence of the action
would depend upon the terms of the policy.
It was observed that an insurance company
which wished to avoid its liability is not
only required to show that the conditions
laid down in Section 149 (2)(a) or (b) are
satisfied but is further required to establish
that there has been a breach on the part of
the insured. Such a breach on the part of
the insured must be established by the
insurer to show that the insured used or
caused or permitted to be used the insured
vehicle in breach of the provisions. The
Bench went on to state that where the
insurer, relying upon the violation of law by
the assured, takes exception to pay the
assured or a third party, it must prove a
willful violation of the law by the assured.
Noting that the proposition of law is no
longer res integra that the person who
alleges breach must prove the same, the
Bench observed that an insurance company
would be required to establish the said
breach by cogent evidence and in the event
an insurance company fails to prove that
there has been breach of the conditions of
the policy on the part of the insured, such
an insurance company cannot be absolved
of its liability."
16. Having perused the memorandum of appeal
and the materials available on record and the oral submission of
the appellant it is clear that the appellant has not raised any
contention with respect to quantum of compensation. The main
point for determination for this Court are as follows:
Patna High Court MA No.386 of 2017 dt.04-04-2025
i. Whether the judgement and award passed by
the Learned Tribunal is correct in holding that
the Appellant Insurance Company is liable to
pay compensation to the claimants?
17. In National Insurance Co. Ltd. v. Swaran
Singh and Ors.(supra), a three Judge Bench of the Hon'ble
Supreme Court dealt with the interpretation of Section 149 of
the Act. It was observed that an Insurance Company which
wished to avoid its liability is not only required to show that the
conditions laid down in Section 149(2)(a) and (b) are satisfied
but is further required to establish that there has been a breach
on the part of the insured. Such breach on the part of the insured
must be established by the insurer to show that the insured used
or caused or permitted to be used the insured vehicle in breach
of the provision. It must prove a willful violation of the law by
insured. It is further observed that the proposition of law is no
longer res integra that the person who alleges breach must prove
the same, the insurance breach by cogent evidence.
18. It is observed that from the material available
on record it becomes clear that the driver of the offending
vehicle, i.e. the jeep in which the deceased was traveling was
not vigilant and there was negligence on his part. The Appellant
has not been able to establish with cogent evidence that there
was a breach of any of the policy conditions. The appellant's
Patna High Court MA No.386 of 2017 dt.04-04-2025
submission that the jeep was standing is not substantiated by the
material available on record. As such the claimant/respondent is
entitled to the compensation as awarded by the Learned
Tribunal. The driver is not found to have been vigilant in driving
and hence he is also at fault.
19. On the other hand it is observed that in light
of the decision of the Apex Court in Khenyei case (supra) even
in the case of composite negligence, the claimant can recover at
his option whole damages from any one of tort-feasors. In the
instant case, the claimants sought to recover the damages from
the offending vehicle which was insured with the Appellant
instead of the unknown truck. The claimants were rightly
entitled to compensation from the Appellant.
20. In light of the above observation, the present
appeal stands dismissed. Accordingly, the Judgment dated
14.12.2015 and award dated 06.01.2016 passed by the learned
Additional District Judge 1st-cum-Motor Vehicle Accident
Claims Tribunal, Saran, Chapra is confirmed with the no
modification in the quantum of compensation awarded to the
claimants/respondents.
21. The statutory fees amounting to Rs. 25,000/-
shall be refunded to the Appellant.
Patna High Court MA No.386 of 2017 dt.04-04-2025
22. The Appellant is at liberty to recover the
compensation from the owner of the vehicle in the event of
prove of breach of policy condition.
(Ramesh Chand Malviya, J)
Harshita/-
AFR/NAFR NAFR
CAV DATE 04.04.2025
Uploading Date 11.04.2025
Transmission Date
