Reliance General Insurance Co. Ltd vs Smt Kusum And Ors
- Court
- Delhi High Court
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 19 August 2026
+ MAC.APP. 375/2024 & CM APPL. 41680/2024
RELIANCE GENERAL INSURANCE CO. LTD .....Appellant
Through: Mr. Shashank Manish, Ms. Nidhi
Sahay, Mr. Himanshu Raj & Ms.
Pragati Singh, Advs.
versus
SMT KUSUM AND ORS .....Respondents
Through: Mr. Rajinder Gulati, Mr.
Himanshu Prajapati, Mr. Rajnesh,
Advs. for respondent nos. 1 to 4
Ms. Snigdha Sood Madan, Adv.
(DHCLSC) for R-5 & 6 (thru VC)
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J (ORAL)
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1. This appeal has been filed assailing award dated 12 April 2024
passed by Motor Accident Claims Tribunal [‘ MACT/Tribunal ’], Central
District, Tis Hazari Courts, Delhi, in MACT No.366/2023, whereby
compensation of Rs.35,50,792/- along with interest @ 6% per annum
was awarded.
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2. The issue raised by the appellant/Insurance Company is that
Driving Licence (‘ DL’ ) of deceased was not produced on record before
the MACT.
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3. This matter pertains to an accident which occurred on 06 January
2023, when a TATA ACC Gold Tempo , being driven by its driver, hit the
scooter of Late Sh. Sanjeev Kumar , aged 48 years, resulting in fatal
injuries to him.
4. The Insurance Company, in its written statement, raised the issue
that the driver of the offending vehicle was holding a driving licence
valid only for the LMV (NT) category, which did not cover the category
of the offending vehicle, being a commercial vehicle. However, this
issue now stands settled by the Supreme Court in Mukund Dewangan v.
Oriental Insurance Co. Ltd . , (2017) 14 SCC 663, and Bajaj Allianz
General Insurance Co. Ltd. v. Rambha Devi , (2025) 3 SCC 95, and is,
therefore, no longer res integra .
5. On the second issue, the fact that there was no driving licence
produced on behalf of the deceased, this issue will not come to the
benefit of the insurance company as it is a settled law that lacking a
driving licence or even a valid driving licence cannot be considered as a
contributory factor unless the accident has been caused due to the
negligence of the victim.
6. Contributory negligence, in tort law, contemplates a situation
where a person’s own negligence has materially contributed to the harm
suffered, thereby warranting apportionment of liability to the extent of
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such negligence. The Supreme Court in Municipal Corporation of
Greater Bombay v. Laxman Iyer , 2003 (8) SCC 731 held as under:
“ 6. The plea which was stressed strenuously related to
alleged contributory negligence. Though there is no
statutory definition, in common parlance “negligence”
is categorised as either composite or contributory. It is
first necessary to find out what is a negligent act.
Negligence is omission of duty caused either by an
omission to do something which a reasonable man
guided upon those considerations, who ordinarily by
reason of conduct of human affairs would do or be
obligated to, or by doing something which a prudent or
reasonable man would not do. Negligence does not
always mean absolute carelessness, but want of such a
degree of care as is required in particular
circumstances. Negligence is failure to observe, for the
protection of the interests of another person, the
degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other
person suffers injury. The idea of negligence and duty
are strictly correlative. Negligence means either
subjectively a careless state of mind, or objectively
careless conduct. Negligence is not an absolute term,
but is a relative one; it is rather a comparative term.
No absolute standard can be fixed and no
mathematically exact formula can be laid down by
which negligence or lack of it can be infallibly
measured in a given case. What constitutes negligence
varies under different conditions and in determining
whether negligence exists in a particular case, or
whether a mere act or course of conduct amounts to
negligence, all the attending and surrounding facts and
circumstances have to be taken into account. It is
absence of care according to circumstances. To
determine whether an act would be or would not be
negligent, it is relevant to determine if any reasonable
man would foresee that the act would cause damage or
not. The omission to do what the law obligates or even
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the failure to do anything in a manner, mode or method
envisaged by law would equally and per se constitute
negligence on the part of such person. If the answer is
in the affirmative, it is a negligent act. Where an
accident is due to negligence of both parties,
substantially there would be contributory negligence
and both would be blamed. In a case of contributory
negligence, the crucial question on which liability
depends would be whether either party could, by
exercise of reasonable care, have avoided the
consequence of the other's negligence. Whichever
party could have avoided the consequence of the
other's negligence would be liable for the accident. If a
person's negligent act or omission was the proximate
and immediate cause of death, the fact that the person
suffering injury was himself negligent and also
contributed to the accident or other circumstances by
which the injury was caused would not afford a
defence to the other. Contributory negligence is
applicable solely to the conduct of a plaintiff. It means
that there has been an act or omission on the part of
the plaintiff which has materially contributed to the
damage, the act or omission being of such a nature
that it may properly be described as negligence,
although negligence is not given its usual meaning.
(See Charlesworth on Negligence, 3rd Edn., para 328.)
It is now well settled that in the case of contributory
negligence, courts have the power to apportion the loss
between the parties as seems just and equitable.
Apportionment in that context means that damage is
reduced to such an extent as the court thinks just and
equitable having regard to the claim shared in the
responsibility for the damage. But in a case where
there has been no contributory negligence on the part
of the victim, the question of apportionment does not
arise. Where a person is injured without any
negligence on his part but as a result of the combined
effect of the negligence of two other persons, it is not a
case of contributory negligence in that sense. It is a
case of what has been styled by Pollock as injury by
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composite negligence. (See Pollock on Torts, 15th
Edn., p. 361.) ”
(emphasis supplied)
7. Further, the Supreme Court in Mohd. Siddique v. National
Insurance Co. Ltd., (2020) 3 SCC 57, in a case of triple riding of the
motorcycle held that triple riding would not by itself make the person
guilty of contributory negligence but only guilty of violation of the law.
It was held that there must be a causal connection between the violation
and the accident. The relevant paragraph is extracted as under:
“ 12. But the above reason, in our view, is flawed. The
fact that the deceased was riding on a motorcycle
along with the driver and another, may not, by itself,
without anything more, make him guilty of contributory
negligence. At the most, it would make him guilty of
being a party to the violation of the law. Section 128 of
the Motor Vehicles Act, 1988, imposes a restriction on
the driver of a two-wheeled motorcycle, not to carry
more than one person on the motorcycle. Section 194-
C, inserted by Amendment Act 32 of 2019, prescribes a
penalty for violation of safety measures for motorcycle
drivers and pillion riders. Therefore, the fact that a
person was a pillion rider on a motorcycle along with
the driver and one more person on the pillion, may be
a violation of the law. But such violation by itself,
without anything more, cannot lead to a finding of
contributory negligence, unless it is established that
his very act of riding along with two others,
contributed either to the accident or to the impact of
the accident upon the victim. There must either be a
causal connection between the violation and the
accident or a causal connection between the violation
and the impact of the accident upon the victim. It may
so happen at times, that the accident could have been
averted or the injuries sustained could have been of a
lesser degree, if there had been no violation of the law
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by the victim. What could otherwise have resulted in a
simple injury, might have resulted in a grievous injury
or even death due to the violation of the law by the
victim. It is in such cases, where, but for the violation
of the law, either the accident could have been averted
or the impact could have been minimised, that the
principle of contributory negligence could be invoked.
It is not the case of the insurer that the accident itself
occurred as a result of three persons riding on a
motorcycle. It is not even the case of the insurer that
the accident would have been averted, if three persons
were not riding on the motorcycle. The fact that the
motorcycle was hit by the car from behind, is admitted.
Interestingly, the finding recorded by the Tribunal that
the deceased was wearing a helmet and that the
deceased was knocked down after the car hit the
motorcycle from behind, are all not assailed.
Therefore, the finding of the High Court that 2 persons
on the pillion of the motorcycle, could have added to
the imbalance, is nothing but presumptuous and is not
based either upon pleading or upon the evidence on
record. Nothing was extracted from PW 3 to the effect
that 2 persons on the pillion added to the imbalance.
13. Therefore, in the absence of any evidence to show
that the wrongful act on the part of the deceased victim
contributed either to the accident or to the nature of
the injuries sustained, the victim could not have been
held guilty of contributory negligence. Hence, the
reduction of 10% towards contributory negligence, is
clearly unjustified and the same has to be set aside .”
(emphasis supplied)
8. Furthermore, the onus is on Insurance Company or the party
alleging contributory negligence to prove through cogent evidence that
the claimant/victim was negligent. Reliance in this regard may be placed
on Supreme Court’s observations in Yashwant Krishna Kumbar v.
Divisional Manager , United India Insurance Co. Ltd. SLP (C) NO.
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22599/2024 in order dated 25 November 2025, where the Supreme
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Court was adjudicating an appeal filed by the pillion rider on the ground
that contributory negligence of 50% was attributed by the Tribunal and
High Court. Allowing the pillion rider’s appeal, the Supreme Court held
as under:
“ 16 . In cases where contributory negligence is sought
to be attributed to a pillion rider in a motor vehicle
accident, the burden squarely lies on the party alleging
such negligence to establish, by cogent material, that
any act or omission on the part of the pillion rider
contributed to the occurrence of the accident. In the
absence of such proof, no finding of contributory
negligence can be sustained against a pillion rider.
17. This Court is therefore of the considered view that
the Tribunal committed a manifest error in reducing
the compensation by 50% on the ground of alleged
contributory negligence of the claimant. The insurer,
on whom the burden squarely rested, led no evidence
to establish even remote negligence attributable to the
claimant. Consequently, the finding of contributory
negligence cannot be sustained and is liable to be set
aside, restoring the claimant’s entitlement to the full
measure of compensation determined in accordance
with law .”
(emphasis added)
9. As regards the issue of contributory negligence and whether
victim not having a DL can be ground of attributing contributory
negligence, the following judgments can be relied upon:
(i) Sudhir Kumar Rana v. Surinder Singh , (2008) 12 SCC 436,
wherein the Supreme Court while deciding the issue of
contributory negligence of a minor, who did not possess
driving license, held as under:
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“ 9 If a person drives a vehicle without a licence, he
commits an offence. The same, by itself, in our opinion,
may not lead to a finding of negligence as regards the
accident. It has been held by the courts below that it
was the driver of the mini truck who was driving rashly
and negligently. It is one thing to say that the appellant
was not possessing any licence but no finding of fact
has been arrived at that he was driving the two-
wheeler rashly and negligently. If he was not driving
rashly and negligently which contributed to the
accident, we fail to see as to how, only because he was
not having a licence, he would be held to be guilty of
contributory negligence.
10. The matter might have been different if by reason
of his rash and negligent driving, the accident had
taken place .”
(emphasis supplied)
(ii) Dinesh Kumar v. National Insurance Co. Ltd ., (2018) 1 SCC
750, relied on the judgment of Sudhir Kumar Rana ( supra )
and held as under:
“ 7 . Once the finding that there was contributory
negligence on the part of the appellant is held to be
without any basis, the second aspect which weighed
both with the Tribunal and the High Court, that the
appellant had not produced the driving licence, would
be of no relevance. This aspect has been considered in
a judgment of this Court in Sudhir Kumar [Sudhir
Kumar Rana v. Surinder Singh, (2008) 12 SCC 436 :
(2009) 1 SCC (Cri) 443] where it was held as follows :
(SCC p. 439, paras 9-10)
…
8. In view of the above position, we are of the view that
the deduction of forty per cent which was made on the
ground of contributory negligence is without any basis.
Accordingly, we direct that the appellant shall be
entitled to an additional amount of Rs 4.60 lakhs which
was wrongly disallowed .”
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(emphasis supplied)
(iii) Saraswati Palariya v. New India Assurance Co. Ltd ., 2018
SCC OnLine SC 3988, the Supreme Court held as under:
“ 5. The finding of the High Court of contributory
negligence on the ground that the deceased was
driving the vehicle without a driving license is equally
unsustainable. Driving without a valid driving license
may expose the claimant(s) to other liabilities but no
inference of contributory negligence can be arrived on
that basis .”
(emphasis supplied)
(iv) Srikrishna Kanta Singh v The Oriental Insurance Co . Ltd. &
Ors. 2025 INSC 394, wherein the Supreme Court while
deciding the case of a scooter driver only possessing a learner
license relied on the judgment of Sudhir Kumar Rana ( supra )
and held as under:
“13. Sudhir Kumar Rana v. Surinder Singh was a case
in which the claimant, a minor of 17½ years, met with
an accident while riding a two wheeler, which collided
with a mini truck. Holding that ordinarily, negligence
is only a question of fact, it was found that when a
person drives a vehicle without a licence, he commits
an offence, which by itself cannot lead to a finding of
negligence, leading to or as regards, the accident.
Having found the trailer to be driven rashly and
negligently, we do not think that the mere fact that the
driver of the scooter had only a learners licence would
necessarily lead to a conclusion of contributory
negligence on the part of the scooter driver .”
(emphasis supplied)
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(v) Mohd. Sabuddin v. Mohd. Zakir , 2024 SCC OnLine Del 7159,
a Coordinate Bench of this Court noted as under:
“41. This Court has perused the record and found that
no driving licence or insurance of the claimant's
vehicle were placed on record. Therefore, applying the
aforementioned case laws Mohd. Siddique v. National
Insurance Co. Ltd. as well as Sudhir Kumar
Rana v. Surinder Singh, this Court is of the view that
mere absence of driving licence and vehicular
insurance does not amount to contributory negligence
on the part of the claimant despite being a punishable
offence under the Motor Vehicles Act, 1988 as the
same has no impact on the accident and the grievous
injuries caused to the claimant.”
(emphasis supplied)
10. It is also noted that Sudhir Kumar Rana ( supra ) and Saraswati
Palariya ( supra ) have consistently been followed by this Court as well
as by other High Courts in a catena of judgments namely, National
Insurance Co. Ltd. v. Sushila , 2019 SCC OnLine Del 10045; Mohd.
Sabuddin ( supra ); Saleem Ahmad v. Jaypal , 2024:DHC:976; United
India Insurance Company Ltd. v Smt. Sobhana & Ors .,
2026:DHC:1653; Shivegowda v. Nanjeshgowda , 2025 SCC OnLine Kar
14720; and, Jacob v Santo K.T. & Ors . 2026:KER:28270.
11. Having considered the aforesaid judgments, the legal position that
emerges is that contributory negligence cannot be inferred merely from
the violation of a statutory requirement by the victim. The essential
requirement is to establish a causal connection between the act or
omission attributed to the victim and either the occurrence of the
accident or the nature and extent of the injuries suffered. The burden of
establishing such contributory negligence lies upon the party alleging it,
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and such finding must be supported by cogent evidence rather than
conjecture or presumption. Thus, the mere absence of a driving licence,
possession of an invalid or learner’s licence, or any other violation of the
Motor Vehicles Act, 1988, may constitute a statutory infraction, but
cannot, by itself, justify a deduction from compensation.
12. In the present case, therefore, the mere fact that the driving licence
of the deceased has not been produced cannot, in the absence of evidence
showing that the deceased was driving rashly or negligently or that the
absence of a licence contributed to the accident, constitute contributory
negligence. Accordingly, unless a causal nexus between the alleged
statutory violation and the accident or the resultant injuries is
established, consequently, no deduction can be made from the
compensation on the ground of contributory negligence.
13. Reliance by counsel for appellant on the judgment of Rehmani
Begum & Ors. v Krishnan Pal & Ors. 2019 SCC OnLine Del 6602 is
not apposite as the Supreme Court in a catena of judgments, as noted
above, has held that even if, the injured/victim is not holding a valid
license or does not possess any license at all, the same would not by
itself amount to contributory negligence. In its recent judgement of
Srikrishna Kanta Singh v The Oriental Insurance Co . Ltd. & Ors.
2025 INSC 394, the court has further clarified that the law would also
apply to cases wherein the victim is found to be possessing a learner’s
license.
14. Further, the Special Leave Petition No. 10293/2019 titled
‘ Rehmani Begum & Ors. v Krishna Pal & Ors. ’ was dismissed in
limine . The Supreme Court has recently reiterated in State of Orissa v.
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Dhirendra Sundar Das , (2019) 6 SCC 270, that dismissal of SLP in
limine, without assigning any detailed reasons, does not constitute a
declaration of law or a binding precedent under Article 141 of the
Constitution. Therefore, the plea of counsel for appellant is unmerited.
15. The following principles as regards contributory negligence can be
culled out from the aforementioned judgments:
I. Contributory negligence requires proof of negligence on the
part of the victim which has materially contributed to the
accident or the resulting injury.
II. The determination of contributory negligence is essentially
dependent upon the facts and circumstances of each case. The
relevant test is whether, by exercising reasonable care, the
victim could have avoided the consequences of the negligence
which caused the accident.
III. A mere violation of law by the victim does not, by
itself, constitute contributory negligence. There must be a
causal connection between such violation and either the
occurrence of the accident or the impact/injury suffered by the
victim.
IV. The burden of establishing contributory negligence
lies upon the party alleging it. Such negligence must be
established by cogent material demonstrating that an act or
omission attributable to the claimant/victim materially
contributed to the accident or the injury suffered.
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V. The mere absence, invalidity, non-production of a driving
licence, or possession of only a learner’s licence, by itself, do
not constitute contributory negligence. Such violation may
entail statutory consequences, but a finding of contributory
negligence can be made only where it is established by cogent
evidence that such violation has a causal connection with the
occurrence of the accident or the injuries suffered by the
victim.
VI. Where negligence is attributable to both parties, the Court
may apportion the loss between them in such proportion as is
just and equitable. However, such apportionment necessarily
presupposes a finding of contributory negligence on the part of
the claimant; in its absence, no deduction from compensation is
warranted.
16. This Court is not inclined to accept the aforesaid plea of the
Insurance Company seeking dilution of the compensation awarded to the
claimants, and does not find any infirmity with the finding of MACT.
17. Appeal is accordingly dismissed. Pending applications, if any, are
rendered infructuous.
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18. This Court vide order dated 25 July 2024 directed the Insurance
Company to deposit the entire compensation amount along with accrued
interest from the date of institution of the claim before the Registrar
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General of this Court. Vide order dated 17 September 2025, this Court
directed that 50% of the deposited amount inclusive of up to date interest
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shall be released to respondent nos.1-4/claimants in accordance with the
scheme set out in the impugned award.
19. Since the appeal stands dismissed, it is directed that the balance
compensation awarded by the MACT and lying deposited with the
Registrar General of this Court be released to the claimants in
accordance with the scheme set out in the impugned award.
20. Statutory deposit, if any, shall be refunded to Insurance Company,
only if the order of deposit has been complied with.
21. Judgment be uploaded on the website of this Court.
(ANISH DAYAL)
JUDGE
AUGUST 19, 2026/sm/ zb
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