Iffco Tokio General Insurance Co Ltd vs Radhey Shyama And Ors
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Reserved on: 18 August 2026
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Pronounced on : 02 September 2026
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Uploaded on : 03 September 2026
# CNR No. DLHC010316172018
+ MAC.APP. 178/2018 & CM APPL. 6002/2018
IFFCO TOKIO GENERAL INSURANCE CO LTD. ....Appellant
Through: Ms. Suman Bagga, Ms. Mouli
Sharma, Advocates.
versus
RADHEY SHYAM AND ORS .....Respondents
Through: Mr. Jatinder Kamra, Advocate.
# CNR No. DLHC010081472019
+ MAC.APP. 135/2019
RADHEY SHYAM & ANR .....Appellants
Through: Mr. Jatinder Kamra, Advocate.
versus
IFFCO TOKIO GENERAL INSURANCCE CO LTD
& ORS .....Respondents
Through: Ms. Suman Bagga, Ms. Mouli
Sharma, Advocates.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. These cross-appeals have been filed assailing impugned award dated
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06 November 2017, passed by the Motor Accident Claims Tribunal, North
Signature Not Verified
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
District, Rohini Courts, Delhi [‘ MACT/Tribunal ’] in Suit No.4564/2016 ,
whereby compensation of Rs.12,10,000 /- along with interest at the rate of
9% per annum was awarded, in relation to an accident which occurred on
th
15 March 2012, and resulted in the death of Anil Kumar Maurya
[hereinafter, ‘ deceased ’], who was 18 years old at the time.
2. MAC.APP.178/2018 has been filed by the Insurance Company,
assailing the finding of the MACT on the issue of negligence, as well as the
fastening of liability upon the driver of the motorcycle on which the deceased
was travelling as a pillion rider, whereas MAC.APP.135/2019 has been filed
by the Legal Representatives [‘ LRs ’] of the deceased seeking enhancement
of the compensation awarded by the MACT.
The incident
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3. The accident in question occurred on 15 March 2012. On that day,
deceased/ Anil Kumar Maurya was travelling as a pillion rider on the
motorcycle bearing registration no. DL-8SAT-1508 , which was being driven
by Akash [ respondent no.4 in MAC.APP.178/2018 ] in a rash and negligent
manner. It was alleged that at about 09:30 a.m. when they reached near 40
Foota Road, Prem Nagar, near Mubarakpur Road, Delhi , Akash tried to
overtake the tractor-trolley proceeding ahead of them, but due to the high
speed, said motorcycle got stuck in the tractor-trolley, as a result of which
the deceased, who was riding as a pillion rider, fell onto the road, and got
caught under the rear wheel of the tractor trolley, sustaining grievous
injuries. He was taken to Sanjay Gandhi Memorial Hospital, Delhi , where
he was declared ‘ brought dead ’.
4. Parents of the deceased filed a claim petition under Sections 166 and
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
140 of the Motor Vehicles Act, 1988 [‘ MV Act ’], alleging that the accident
occurred “ solely due to high speed, rash and negligent, zigzag driving ” of
Akash , who was driving the motorcycle. The said motorcycle was insured by
the appellant/Insurance Company in MAC.APP. 178/2018 .
Submissions on behalf of the Insurance Company
5. Ms. Suman Bagga , counsel for the Insurance Company, contended
that the claim filed alleging sole negligence on part of the motorcycle
driver/ Akash , was not made out, as the claimants had failed to prove the
negligence of the motorcycle driver/ Akash . This assertion was based upon
the following submissions:
i. firstly , that the claim itself, as stated above, had been filed alleging
sole negligence on part of the motorcycle driver and, therefore, had to
be proved on that basis;
ii. secondly , the statement of the motorcycle driver/ Akash , was recorded,
wherein he stated that one tractor-trolley came from behind in a
negligent manner and hit the motorcycle with great force, as a result
of which he and the pillion rider fell on the road;
iii. thirdly , the chargesheet also records the statement of motorcycle
driver/ Akash , who stated that the tractor was in front of them, was
loaded with bricks, and was being driven by its driver in a high speed
and negligent manner. When he tried to overtake it from the left side,
the tractor pressed the motorcycle towards the side, as a result of
which, the pillion rider was caught under its rear wheel.
iv. fourthly, the statement of PW-2 , Raj Kumar Budh , who was pressed
as an eyewitness by the claimants, recorded that he was returning to
Signature Not Verified
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
his house in his car around that time, when two boys overtook him
from the right side and hit against a tractor trolley in its back left side.
The pillion rider fell under the wheel of the tractor and was crushed
under that wheel. PW-2 further stated that he had told the police about
the negligence of both the drivers. The same was also reiterated by
him during his cross-examination;
v. fifthly , Ms. Bagga relies upon the evidence of R2W1 [ motorcycle
driver/Akash ], who gave a brief statement before the MACT, upon
which he was not cross examined by counsel for claimants, despite
opportunity having been given. On this basis, she contends that the
claimants have neither taken any steps towards proving negligence on
part of the motorcycle driver/ Akash nor confronted him with any
suggestions in that regard;
vi. sixthly , she relies upon the site plan, wherein it is noted that the
collision was caused by the tractor, which pressed the motorcycle
towards the side;
vii. seventhly , she relies upon the letter written by father of the deceased
to the Human Rights Commission , wherein he stated that he, along
with Akash , had gone to the police station to register an FIR. He also
wrote that the police officials did not record in the FIR what was
mentioned by Akash , and instead obtained his signatures by
threatening him. He further stated that that the police took all steps to
save the tractor driver.
6. On this basis, Ms. Bagga , counsel for the Insurance Company,
contends, that on one hand, despite claiming sole negligence on part of the
motorcycle driver/ Akash , no proof was provided by counsel for the claimants
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
and, on the other hand, consistent statements were made by father of the
deceased that he and Akash had gone together to register an FIR and had a
grievance that the tractor driver had not been roped in by the police.
7. It is a matter of fact that the chargesheet or the final report which was
filed, was against an untraced vehicle, and therefore, nobody was being
accused therein. This cast a doubt regarding the involvement of the offending
vehicle/motorcycle.
Submissions on behalf of the claimants
8. Mr. Jatinder Kamra , counsel, appearing for the claimants, counters
the arguments made by Ms. Bagga , and submits the following:
i. firstly , that said accident was a case of composite negligence and the
same was stated by father of deceased, Radhe Shyam , who testified as
PW-1 , in his evidence by way of affidavit;
ii. secondly , neither was any written statement filed by the motorcycle
driver/ Akash , nor did he state anything during his examination-in-
chief, and therefore, there was no occasion to cross-examine him on
any aspect;
iii. thirdly , the motorcycle driver/ Akash admittedly did not possess a
driving license and, therefore, ought to be treated as being negligent
in any case, whatsoever;
iv. fourthly , in the written statement filed by the Insurance Company, it
did not take the defence that that the motorcycle driver/ Akash was not
negligent. The response in the written statement was merely related to
the breach of policy conditions and the accident having occurred due
Signature Not Verified
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
to the negligent driving of the tractor driver who could not be traced
by the police.
v. fifthly , since the motorcycle was insured under a comprehensive
package policy, the pillion rider would, in any case, be entitled to
compensation. In this regard, he relied upon the decision of this Court
in Yashpal Luthra & Anr. v. United India Insurance Co. Ltd. and
Anr. , 2009:DHC:5510. For ease of reference, the relevant portion
from Yashpal Luthra ( supra ) is extracted as under:
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“3. On 24 February, 2006 at about 9.30 pm, the
deceased was returning home on motorcycle bearing
No.DL-7SAU-2074 being driven by his friend. The
deceased was sitting on the pillion of the said
motorcycle. At Ahuja Park red light near Lodhi Road
Complex, the aforesaid motorcycle was hit by an
unknown vehicle, due to which the deceased fell down
and suffered fatal injuries.
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5. Respondent No.1 contested the claim petition before
the learned Tribunal on the ground that respondent
No.1 has not covered the risk of a pillion rider on the
two-wheeler. The learned Tribunal accepted the plea of
respondent No.1 and exonerated respondent No.1 from
the liability. The learned Tribunal passed the award of
Rs.4,53,300/- against respondent No.2 only.
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7. With respect to the liability of respondent No.1 under
the policy, the General Manager of respondent No.1 was
examined by this Court under Section 165 of the Indian
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Evidence Act on 5 November, 2009 when he admitted
the liability of respondent No.1 in respect of the
deceased and undertook to deposit the entire award
amount along with interest as per the award of the
learned Tribunal within 30 days. This Court also
examined the officers of Insurance Regulatory and
Development Authority (IRDA) and Tariff Advisory
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
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Committee (TAC) on 26 October, 2009. The IRDA
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issued circular dated 16 November, 2009 and
convened a meeting of all the Insurance Companies on
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26 October, 2009 when all the Insurance Companies
admitted their liability in respect of a pillion rider on a
two wheeler and occupants in a private car under the
package/comprehensive policy. IRDA has also issued a
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circular dated 3 December, 2009 to all the Insurance
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Companies to implement the circular dated 16
November, 2009 within a fixed time frame. The detailed
judgment in this regard has been passed by this Court
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on 9 December, 2009. ”
(emphasis added)
vi. Sixthly , he relies upon the decision of the Supreme Court in Pawan
Kumar v. Harkishan Dass Mohan Lal, (2014) 3 SCC 590, to contend
that in cases of composite negligence, the claimant is entitled to sue
all or any of the tortfeasors, and both the tortfeasors, in such cases,
would be considered jointly and severally liable. For ready reference,
the relevant paragraphs from Pawan Kumar ( supra ) have been
reproduced hereinbelow:
“ 7. The distinction between the principles of composite
and contributory negligence has been dealt with in
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Winfield & Jolowicz on Tort (Chapter 21) (15 Edition,
1998). It would be appropriate to notice the following
passage from the said work:
“WHERE two or more people by their independent
breaches of duty to the plaintiff cause him to suffer
distinct injuries, no special rules are required, for
each tortfeasor is liable for the damage which he
caused and only for that damage. Where, however,
two or more breaches of duty by different persons
cause the plaintiff to suffer a single injury the
position is more complicated. The law in such a
case is that the plaintiff is entitled to sue all or any
of them for the full amount of his loss, and each is
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
said to be jointly and severally liable for it. This
means that special rules are necessary to deal with
the possibilities of successive actions in respect of
that loss and of claims for contribution or
indemnity by one tortfeasor against the others. It
is greatly to the plaintiff’s advantage to show that
that he has suffered the same, indivisible harm at
the hands of a number of defendants for he thereby
avoids the risk, inherent in cases where there are
different injuries, of finding that one defendant is
insolvent (or uninsured) and being unable to
execute judgment against him. The same picture is
not, of course, so attractive from the point of view
of the solvent defendant, who may end up carrying
full responsibility for a loss in the causing of which
he played only a partial, even secondary role.
………………………................................................
The question of whether there is one injury can be
a difficult one. The simplest case is that of two
virtually simultaneous acts of negligence, as where
two drivers behave negligently and collide,
injuring a passenger in one of the cars or a
pedestrian, but there is no requirement that the acts
be simultaneous.... ”
(emphasis added)
vii. Seventhly , he relied upon the decision in National Insurance Co. Ltd.
v. Baby Sapna Saxena , 2017 SCC OnLine Del 9942, rendered by a
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Single Judge of this Court on 11 August 2017, wherein, in a similar
case, where the police could not locate the truck driver and the FIR
resulted in an untraced report, the Court observed that the FIR is only
the starting point of action in criminal law and cannot prevent a case
from being brought out against such other persons whose involvement
or complicity can be proved by the evidence which is available. In this
regard, the relevant paragraphs from Baby Sapna Saxena ( supra ) are
extracted as under:
Signature Not Verified
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
“ 5. The basic contention urged by the appellant is that
the accident having occurred on 01.11.2012, no first
information report was immediately lodged and further
that Hari Om Saxena, father of the three injured
children had lodged a report two days after the
occurrence, i.e. on 3.11.2012, with the local police
station which resulted in FIR No. 88/2013 being
registered, the effect whereof was that the accident had
been caused due to negligence on the part of the truck
driver, the identity of which was not known. It is the
submission of the insurer that the police could not locate
the truck driver inspite of investigation and eventually
the said FIR resulted in an untraced report being
submitted in the court of Magistrate, putting a curtain
on such proceedings. It is submitted that the pleadings
on the basis of which the present petitions were filed and
the evidence to the effect that the driver of the car was
also negligent have been manufactured only to extract
money.
6. The submissions of the insurance company do not
impress this Court. It is trite that FIR is only the starting
point of action in terms of criminal law. It is never
expected to be a compendium of entire facts on which
the criminal charge is expected to be eventually
founded. If contrary were the expectation, there would
be no need for any investigation. The purpose of the
investigation is to find out the truth. If the police, inspite
of investigation, is unable to trace out the offending
vehicle - the truck in the present case - it does not mean
that there cannot be a case brought out against such
other persons whose involvement or complicity can be
proved by the evidence which is available. ”
(emphasis added)
Analysis and findings
9. It is quite clear from the statement made by the father of deceased,
Radhe Shyam [ PW-1 ] in his evidence by way of affidavit, that the substratum
of the claim was composite negligence, even though in the claim petition it
Signature Not Verified
MAC.APP.178/2018 & MAC.APP.135/2019 Page 9 of 16
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
was taken as sole negligence.
10. It is a settled principle of law that in cases of composite negligence,
where two vehicles are involved, the claimant can sue any or all of the
tortfeasors, who would be jointly and severally liable. It is quite clear that
the claimant had also pressed his claim against the motorcycle driver/ Akash .
It is another matter that in the initial stages, father of the deceased attempted
to rope in the tractor driver by stating so in the FIR, but since the FIR resulted
in an untraced vehicle, the claimants cannot be precluded from laying a claim
against the motorcycle driver/ Akash .
11. This claim against the motorcycle driver/ Akash is also buttressed by
the evidence of the eyewitness, PW-2 / Raj Kumar Budh , who clearly stated
the circumstances in which the accident occurred, in that the motorcycle
driver/ Akash and the pillion rider/deceased had overtaken him from his right
side in a fast speed, and hit against the tractor-trolley on its back left side. He
stated that the pillion rider “ fell under the wheel of the tractor and was
crushed under that wheel ”. He further stated that he had picked up the boy
[ deceased ] and taken him to Sanjay Gandhi Memorial Hospital in his car,
where he got him admitted. The driver of the motorcycle/ Akash also
accompanied him to the hospital. He also stated that on being called by the
police, he went to PS Rohini , where he was interrogated by the police
regarding the accident.
12. PW-2 / Raj Kumar Budh further stated that the accident took place due
to the rash and fast driving of said motorcyclist. During his cross-
examination, he stated that he had told the police about the negligence of
both the drivers and that it was true that the “ driver of motorcycle as well as
Signature Not Verified
MAC.APP.178/2018 & MAC.APP.135/2019 Page 10 of 16
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
of tractor both were negligent in their driving ”. Moreover, the statement
furnished by the motorcycle driver/ Akash clearly recorded that a passerby
had taken his friend and him to Sanjay Gandhi Memorial Hospital for
treatment. The testimony of PW-2 / Raj Kumar Budh , is therefore,
corroborated by the statement of the motorcycle driver/ Akash . While
recording the FIR as well, the statement of motorcycle driver/ Akash was
noted, wherein he stated that “ one person in Nano car came there for our
help and brought both of us at SGM Hospital wherein doctor declared Anil
dead ”.
13. The reliance placed by the Insurance Company upon the site plan, as
well as upon the one-line statement made by the police official who prepared
the site plan, may not be determinative of the issue of negligence so as to
fasten the entire negligence upon the driver of the tractor. The statement
made in the site plan is cursory. It merely states a fact that the accident was
caused by the tractor, which caused the motorcycle to be pressed towards the
side. This by no means, can be considered as determining the issue of
negligence or as excluding the negligence on part of the motorcycle
driver/ Akash .
14. The reliance placed by Ms. Bagga , counsel for Insurance Company,
upon the letter written by the father of the deceased to the Human Rights
Commission also does not take away the negligence attributable to the
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motorcycle driver/ Akash . It must be noted that the letter was written on 02
April 2012, about a month after the accident had taken place, when the father
of the deceased would have been making desperate attempts in order to
obtain compensation in respect of the death of his son.
Signature Not Verified
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
15. What is determinative is that the motorcycle driver/ Akash neither filed
any evidence nor stated anything material during his examination-in-chief.
He merely stated, “ On 15.03.2012, I was driving motor cycle DL-8S-1508.
On that day, I along with my friend Anil Kumar Maurya was going to market
Chhaterpur road to purchase ration. Our motorcycle met with an accident.
I was not having any driving license. Said motorcycle was owned by Sh.
Pawan Kumar Mishra ”.
16. Therefore, in the opinion of this Court, Mr. Kamra’s assertion that
there was no requirement to cross examine the motorcycle driver/ Akash , who
testified as R2W1 , is quite appropriate and apposite. There is nothing which
the motorcycle driver/ Akash states in terms of the negligence being fastened
solely upon the driver of the tractor and, therefore, no purpose could be
served by cross-examining him further. Moreover, no written statement was
filed by the motorcycle driver/ Akash , despite the fact that a claim of sole
negligence was made against him by the claimants in the claim petition.
Furthermore, neither was any evidence placed on record by the Insurance
Company, nor did the written statement filed by it contain any assertion to
the effect that the motorcycle driver/ Akash was not negligent, particularly
when the written statement had been filed in response to a claim of sole
negligence on the part of the motorcycle driver/ Akash .
17. Considering also that the motorcycle driver/ Akash was driving
without a driving license, the Court is inclined to consider that, at the very
least, it was a case of composite negligence. Therefore, fastening of the
liability, by the MACT, upon the motorcycle driver/ Akash , and consequently
upon the Insurance Company for payment of compensation, is not amiss.
Signature Not Verified
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
18. Furthermore, the statements made by the motorcycle driver/ Akash
throughout the proceedings were inconsistent. In the statement made before
the police, he states that the tractor hit him from behind. However, while
recording the FIR, he stated that he overtook the tractor from the right side.
Further, again, in the chargesheet, he stated that he tried to overtake the
tractor from the left side. Therefore, variance in the statement made before
the police and what is recorded in the FIR is quite evident.
Conclusion
19. In view of the above, the assessment made by the MACT, first in,
rejecting the testimony of R1W1 , Sh. Akhilesh Jha , who was not an
eyewitness, and whose testimony was based on hearsay, and second , in
relying upon the testimony of PW2 , Raj Kumar Budh , an eyewitness, whose
testimony stood corroborated, was not amiss. The finding of negligence is
required to established on the basis of the ‘ preponderance of probabilities ’,
and accordingly, there is no material on record to arrive at a conclusion
contrary to the one arrived at by the MACT.
20. Mr. Kamra , counsel for the claimants, has, in the cross-appeal
preferred by him, also sought alignment of the awarded compensation with
the principles enunciated by the Supreme Court in National Insurance Co.
Ltd. v. Pranay Sethi (2017) 16 SCC 680.
21. Accordingly, the following adjustments shall be made:
i. Loss of love and affection shall be deleted in terms of decision of the
Supreme Court in United India Insurance Co. Ltd. v. Satinder Kaur ,
(2021) 11 SCC 780 ;
Signature Not Verified
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
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ii. Compensation towards funeral expenses and loss of estate has been
rightly awarded at Rs.15,000/- each; However, loss of consortium shall
be granted at Rs.80,000/- ( Rs.40,000 × 2 ) , in respect of both parents
of the deceased;
iii. Loss of dependency was calculated by taking the notional income of
deceased at Rs.12,000/- per month and applying a multiplier of ‘15’.
The same ought to be corrected, and accordingly, a multiplier of ‘ 18 ’
along with future prospects at 40%, shall be granted, considering that
the deceased was 18 years old at the time of the accident.
22. In view of the above, the compensation shall be revised as under:
S. NO. HEADS AWARDED BY
THE TRIBUNAL
AWARDED BY
THIS COURT
1. Monthly income of deceased
(A)
Rs. 12,000/- Rs. 12,000/-
2. Add Future Prospects (B)
@40%
NIL Rs. 16,800/-
3. Less Personal expenses of
the deceased (C) @ 50%
Rs. 6,000/- Rs. 8,400/-
4. Monthly loss of dependency
[B-C = D]
Rs. 6,000/- Rs. 8,400/-
5. Annual loss of dependency
(Dx12)
Rs. 72,000/- Rs. 1,00,800/-
6. Multiplier (E) 15 18
7. Total loss of dependency
(Dx12xE = F)
Rs. 10,80,000/- Rs. 18,14,400/-
8. Loss of love and affection Rs. 1,00,000/- NIL
9. Compensation for loss of
consortium (G) (40,000x2)
NIL Rs. 80,000/-
10. Compensation for loss of
Rs. 15,000/- Rs. 15,000/-
estate (H)
11. Compensation towards
Rs. 15,000/- Rs. 15,000/-
funeral expenses (I)
Signature Not Verified
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
12. Total compensation
Rs. 12,10,000/- Rs. 19,24,400/-
(F+G+H+I = J)
13. Interest 9% 9%
14. Enhanced amount Rs. 7,14,400/-
Directions
23. For the aforesaid reasons, compensation has been enhanced by
Rs.7,14,400/- [‘ enhanced amount ’].
24. It is therefore directed that the enhanced amount along with interest at
the rate of 9% per annum, be deposited before the MACT within a period of
four weeks . It is directed that a lump sum amount of Rs. 2,00,000/- shall be
released in favour of the claimants from the deposit of enhanced amount
within a period of two weeks thereafter. Remaining enhanced amount, along
with accrued interest till date, shall be kept in Fixed Deposit Receipts
[‘ FDRs ’] of Rs. 20,000/- each for periods of 1 month, 2 months, 3 months
and so on, in succession as maybe calculated. Interest accruing on said FDRs
shall be credited to the designated Savings Bank Account of the claimants.
The amount of FDRs on maturity would be released to the Savings Bank
Account of the claimants upon due verification. The apportionment of the
enhanced amount shall be the same as that directed by the MACT in respect
of the originally awarded amount.
25. The originally awarded amount, along with accrued interest thereon,
if not already released, shall be released in favour of the claimants in terms
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of the directions passed by the MACT vide impugned award dated 06
November 2017.
26. Appeals are disposed of in the above terms.
Signature Not Verified
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31
27. Pending applications, if any, are rendered infructuous.
28. Statutory deposit, if any, shall be refunded to the Insurance Company.
29. Copy of this judgment be sent to the concerned MACT/bank for
information and necessary compliance.
30. Judgment be uploaded on the website of this Court.
(ANISH DAYAL)
JUDGE
SEPTEMBER 2, 2026/ ak/ya
Signature Not Verified
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:03.09.2026
12:00:31