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1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF JANUARY 2016
PRESENT
THE HON’BLE MR.JUSTICE RAM MOHAN REDDY
AND
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.NO.31686/2013 (MV)
C/W
M.F.A NOS.31483/2013 & 31412/2013 (MV)
IN M.F.A.NO.31686/2013
Between:
The General ManagerICICI Lombard Gen. Ins., Co. Ltd.,Timmapuri Circle, GulbargaThrough its Manager Legal
…Appellant(By Sri C. S. Kalburgi, Advocate)
And:
1. RajendrasinghS/o Kalyansingh ThakurAge: 37 years,Occ: KSRTC driver cum Conductor
R
2
R/o Old Jewargi Road, Panchsheel NagarGulbarga- 585 102
2. Abdul Rahman S/o Khasim AliAge: 42 years, Occ: Owner ofThe Lorry No.KA-27-0649Mominpura, KharibowliGulbarga- 585 102
3. Divisional Controller, KSRTCDepot No.2, Gulbarga- 585 102
…Respondents
(By Sri A.M. Patil, Advocate for R3; R1 Served; Notice to R2 is dispensed with)
This Appeal is filed under Section 173(1) of MVAct, against the judgment and award dated17.4.2013 passed in MVC No.89/2011 on the file I-Addl.Senior Civil Judge and MACT at Gulbarga, partlyallowing the claim petition and awarding compensation
of Rs.1,95,000/- with interest at 6% P.A.
IN M.F.A.NO.31483/2013
Between:
1. Smt. Banashankari @ YallammaW/o Late Manohar BanasodeAge: 42 years, Occ: Household
2. Pooja D/o Late Manohar BanasodeAge: 25 years, Occ: Household
3. Rakesh S/o Late Manohar BanasodeAge: 23 years, Occ: Student
3
4. RaghavendraS/o Late Manohar BanasodeAge: 22 years, Occ: Student
5. Rahul S/o Late Manohar BanasodeAge: 20 years, Occ: Student
All are residents of Chadchan, Taluka Indi
District Bijapur, Now at Residing HouseNo.135/B, opposite Darga, Gubbi ColonyGulbarga- 585 102
…Appellants(By Sri S.S. Kumman, Advocate)
And:
1. Abdul Raheem S/o Kasim Ali QureshiAge: 40 years, Occ: Owner of Lorry bearingNo.KA-27/0649, Resident of houseNo.6-196, Kari Bawali Mominpura
Gulbarga- 585 101
2. The Manager I.C.I.C.I. LombardGeneral Insurance Limited10th main, Keshav Rao Khade MargMahalaxmi Mumbai- 400 034
Through its Manager I.C.I.C.I. LombardGeneral Insurance Company LimitedKhotari Complex, Timmapur CircleVallabhi Chowk Gulbarga-585 102(Insurance of Insurer of Lorry BearingNo.KA-27/0649)
…Respondents(By Sri C.S. Kalburagi, Advocate for R2; Notice to R1 is dispensed with)
4
This Appeal is filed under Section 173(1) of MVAct, against the judgment and award dated 16.02.2013passed in MVC No.969/2010 on the file Principal Senior
Civil Judge & MACT Gulbarga at Gulbarga, partlyallowing the claim petition and seeking enhancement ofcompensation.
M.F.A.NO.31412/2013
Between:
The General ManagerICICI Lombard Gen. Ins., Co. Ltd.
Mayura Complex, 10th mainKeshav Rao Khade Marg, MahalaxmiMumbai-400034, Through its ManagerICICI Lombard Gen. Ins. Co. Ltd.Ist Floor, Kothari ComplexTimmapuri Circle, Sardar Vallabai
Patel Chowk, GulbargaThrough its Manager Legal
…Appellant(By Sri C.S. Kalburgi, Advocate)
And:
1. Smt. Banashankari @ YallammaW/o Late Manohar BanasodeAge: 43 years, Occ: Household
2. Pooja D/o Late Manohar Banasode
Age: 26 years, Occ: Household
3. Rakesh S/o Late Manohar BanasodeAge: 24 years, Occ: Student
5
4. RaghavendraS/o Late Manohar Banasode
Age: 23 years, Occ: Student
5. Rahul S/o Late Manohar BanasodeAge: 21 years, Occ: StudentAll are residents of Chadchan,Taluka Indi, District Bijapur
Now residing house No.135/BOpposite Darge, Gubbi ColonyGulbarga- 585 102
6. Abdul Raheem S/o Kasim Ali Qureshi Age: 43 years, Occ: Owner of Lorry Bearing
Reg. No.KA-27-0649, Resident ofHouse No.6-196, Kari BawaliMominpura, Gulbarga- 585 102
…Respondents(By Sri S.S. Kumman, Advocate for R1 t o R5; R6 – Served)
This Appeal is filed under Section 173(1) of MV
Act, against the judgment and award dated 16.02.2013
passed in MVC No.969/2010 on the file Principal Senior
Civil Judge and MACT at Gulbarga, partly allowing the
claim petition and awarding compensation of
Rs.30,57,100/- with interest at 6% P.A.
These Appeals are coming on for Orders this day,
RAM MOHAN REDDY J., delivered the following:
6
JUDGMENT
Since common questions of fact and that of law
arise for decision making with the consent of learned
counsel for parties, appeals are clubbed together, finally
heard and disposed of by this common judgment.
2. MFA No.31686/2013 and MFA No.31412/2013
are filed by the insurer of Lorry bearing Certificate of
Registration No. KA-27-649, aggrieved by the finding
fastening liability to pay compensation, by judgment
and award dated 17.04.2013 in MVC No.89/2011 of the
I Addl. Senior Civil Judge & MACT, Gulbarga, and by
judgment and award dated 16.02.2013 in MVC
No.969/2010 of the Principal Senior Civil Judge &
MACT, Gulbarga. (for short ‘MACT’).
3. MFA No.31483/2013 is preferred by the claimants
in MVC No.969/2010, aggrieved by the judgment and
award dated 16.02.2013 in MVC No.969/2010 insofar
7
as it relates to quantum of compensation and
attributing contributory negligence of 40% to the driver
of the public transport bus.
4. Respondent No.2 – owner/insured of the offending
lorry since placed exparte before MACT in MVC
No.89/2011, hence notice to said respondent is
dispensed with in the light of Karnataka Amendment to
Order 41 Rule 14 CPC.
5. Facts briefly stated are:
On 27.04.2010 at about 6.00 a.m. , one
Manohar, driver of bus bearing Certificate of
Registration KA-32-F-1440 belonging to North East
Karnataka Road Transport Corporation (for short
‘NEKRTC’), proceeding from Shimoga to Gulbarga, near
Khalifat Darga at Jewargi – Gulbarga road, is said to
have dashed a stationary Lorry bearing Certificate of
Registration KA-27-649 owned by one Abdul Raheem
(Abdul Rehaman) and insured by M/s.ICICI Lombard
8
General Insurance Limited - appellants in MFA
Nos.31686/2013 & 31412/2013. Manohar – is stated to
have succumbed to grievous injuries on 28.04.2010
after being shifted to Basaveshwar Hospital, Gulbarga.
6. One Rajendra Singh, a conductor-cum-driver of
the NEKRTC bus having sustained grievous injuries due
to the said accident, filed MVC No.89/2011, since,
arraigned as respondent in MFA No.31686/2013,
though served with notice, is absent and un-
represented.
7. Dependents of the deceased Manohar filed MVC
No.969/2010, while the injured Rajendra Singh filed
MVC No.89/2011 for compensation invoking Section
166 of the Motor Vehicles Act, 1988, (‘Act’ for short).
Though the petitions arise out of the very same
accident, nevertheless, were proceeded with separately,
and the trial held independently.
9
8. In both petitions, owner of the lorry-the insured,
and the insurance company-the insurer, were arraigned
as respondents. Insured/owner of the offending vehicle,
though served with notice of the petitions, before the
MACT, did not appear and was placed ex-parte in MVC
No.89/2011 while in MVC No.969/2010 was
represented by learned counsel, but did not offer
resistance by filing statement of objections to the claim
petitions. Insurer of the offending lorry resisted the
petitions by filing written statement interalia denying
the averments, contending that it was the driver of
NEKRTC bus who caused the accident hence,
responsibility was on the driver of NEKRTC bus, while
asserting that the offending lorry was parked on the
extreme left side of the road, though, without parking
lights or any signal, since there was no such
requirement. In addition, it was contended that the
driver of the offending lorry did not possess a valid and
10
effective driving licence to drive the goods carrying
vehicle as on the date of accident.
9. MACT framed issues in MVC No.969/2010, first of
which related to negligence on the part of driver of the
lorry and second, over whether driver of NEKRTC bus
succumbed to grievous injury while third over the
quantum of compensation and from whom to be
recovered. Similar were the issues framed in MVC
No.89/2011, though with reference to the injured
claimant.
10. Parties let in evidence, when Police records, salary
certificate and medical records in respect of the
deceased and that of the injured were marked as
Exhibits. In M.V.C.No.969/2010, the 1st claimant,
widow, was examined as P.W.1, while Rajendra Singh,
the injured as P.W.2 and marked Exs.P.1 to P.7. For
the respondent – insurance company, three witnesses
namely, Pradeep, S/o Sidddannagouda, Legal Manager
11
of the insurance company; Nazeersab, CPI, who turned
hostile, and Y.K.Narasimhamurthy, S/o Kumbayya,
Assistant Meteorologist of India, Meteorological
Department were examined as R.Ws.1 to 3. In MVC
No.89/2011, the claimant was examined as P.W.1; Dr.
Sachin Shah as P.W.2. For the respondents, Pradeep,
S/o Siddannagouda was examined as RW-1;
Basavantappa, the Accounts Officer of NEKRTC as RW-
2 and Y.K. Narasimhamurthy, as RW-3 and marked
Exs.R-1 to R-10.
11. MACT having regard to the pleadings, material on
record, evidence both oral and documentary, attributed
contributory negligence to the extent of 60% on the
driver of NEKRTC bus and 40% to the driver of the
offending lorry while fastening liability to pay
compensation, on the insurer of offending lorry to the
extent of 40% in both the petitions, however awarded
compensation of `1,95,000/- with interest @ 6% p.a.
12
from the date of petition in MVC No.89/2011 and
`30,57,100/- as compensation to dependents of
deceased driver of the NEKRTC by the judgment and
award in MVC No.969/2010.
12. The appeals preferred by the insurance company –
insurer of the offending lorry are in respect of the
finding fastening liability to pay 40% of the
compensation since 40% of contributory negligence is
attributed to the driver of the offending lorry, while
appeal filed by claimants in MVC No.969/2010 is over
the finding attributing contributory negligence of 60%
on the driver of the bus belonging to NEKRTC, as well
as the quantum of compensation, asserting it to be on
the lower side.
13. It is submitted by learned counsel for the insurer
that the MACT was not justified in attributing
contributory negligence of 40% on the driver of the
offending lorry, as also fastening liability to pay 40% of
13
the compensation, though the driver of the lorry did not
possess a valid and effective driver’s licence.
14. Learned counsel for the claimants/appellants
submits that in the absence of parking lights or hazard
lights of the offending lorry being switched on, a
mandate of law, coupled with the fact that the insurer
did not advance a plea in the written statement of
alleged contributory negligence, as also the MACT
having not framed a point for such consideration, there
was no justification to attribute contributory negligence
of 60% on the driver of the NEKRTC bus. The award of
compensation, it is submitted, is on the lower side.
15. Having heard the learned counsel, the following
three questions arise for decision making:
(i) Whether the finding of the MACT that accident
took place due to contribution of negligence by
both the drivers is justified?
14
(ii) Whether the finding fastening liability to pay
the compensation on the insurer is justified?
(iii) Whether the compensation awarded by the
MACT in the facts and circumstances of the
case and evidence on record could be regarded
as “just” compensation within the
contemplation of the ‘Act’?
16. On the question of negligence, admitted facts are:-
lorry was parked on the left side of the road (highway) at
a place not being a notified parking place, without any
indication or lights as is discernible from the statement
of objections of the insurance company admitting said
fact, as well as the spot sketch – Ex.P-6 in MVC No.
89/2011; the driver of the bus belonging to NEKRTC
traversing on the road in question, noticed the lorry
ahead of it in a stationary position, despite efforts to
avoid a collision, dashed against the hind right side
portion of the Lorry, at about 6 AM, in the wee hours of
the morning of 27.04.2010; the insurer in the written
statement, did not advance the plea of contributory
15
negligence on the part of the driver of the bus, the
MACT did not frame an issue or a point for
consideration over contributory negligence and, the oral
testimony of the witnesses for the insurer did not testify
to contribution of negligence of the driver of the bus.
17. P.W.1 is the first claimant, the widow of the
deceased, not an eye witness, while P.W.2, the
conductor-cum-driver testified to the fact that the lorry
was visible only when the bus of NEKRTC came near to
it, as the lorry did not have its parking lights switched
on. Nothing incriminating is elicited in the cross-
examination of PW-2 to disbelieve his evidence. R.W.2,
Nazeer Sab, the CPI since retired, though the witness
for the insurer, turned hostile and in his cross-
examination, nothing is elicited to disbelieve the
testimony. The testimony of RW-3 the Assistant
Meteorologist is of no assistance, since according to him
at 6 AM sun rise had occurred on the relevant day.
16
18. Whether the driver of the offending lorry could
have parked the vehicle on the left side of the road
without switching on the parking lights, takes us to an
examination of Sections 117 and 122 of the Motor
Vehicles Act, 1988 which reads thus:
“117. Parking places and haltingstations. -- The State Government or anyauthority authorised in this behalf by the
State Government may, in consultationwith the local authority having jurisdictionin the area concerned, determine places atwhich motor vehicles may stand eitherindefinitely or for a specified period of time,and may determine the places at which
public service vehicles may stop for alonger time than is necessary for the takingup and setting down of passengers.
122. Leaving vehicle in dangerousposition-- No person in charge of a motor
vehicle shall cause or allow the vehicle orany trailer to be abandoned or to remain atrest on any public place in such a positionor in such a condition or in suchcircumstances as to cause or likely tocause danger, obstruction or undue
inconvenience to other users of the publicplace or to the passengers.”
17
Rule 109 of the Central Motor Vehicle Rules,
1989 provides for ‘parking light’ and reads thus:
“109. Parking light. Every constructionequipment vehicle and every motor vehicleother than motor cycles and three wheeledinvalid carriages shall be provided with onewhite or amber parking light on each sidein the front. In addition to the front lights,
two red parking lights one on each side inthe front. In addition to the front lights, twored parking lights one on each side in therear shall be provided. The front and rearparking lights shall remain lit even whenthe vehicle is kept stationary on the road:
Provided that these rear lamps can bethe same as the rear lamps referred to inthe rule 105 sub-rule (2):
Provided also that construction
equipment vehicles, which are installedwith flood light lamps or sport lights at thefront, rear or side of the vehicle for theiroff-highway or construction operations,shall have separate control for such lampsor lights and these shall be permanently
switched-off when the vehicle is travellingon the road.”
19. In the light of the aforesaid statutory provisions,
the offending lorry when not parked at a notified
parking place or halting station, and the driver having
18
left the vehicle in a dangerous position likely to cause
danger or undue inconvenience to other users of the
public place, coupled with the fact, that parking lights
were not lit when the vehicle was kept stationary on the
road; a mandate of Rule 109 of the Rules, there can be
no more doubt that the driver of the offending vehicle
i.e., lorry was negligent in parking the lorry on the road
put to use by other motor vehicles, the cause of
accident.
20. A Division Bench of this Court in M.N.Rajan and
others vs. Konnali Khalid Haji and another1,
considering the pleading, on whom the burden of proof
is placed and standard of proof expected to establish
“contributory negligence”, the Bench of which one of us
(RMRJ) was the companion judge observed thus:
“We also do not find any merit in the alternate
contention of the learned counsel for the owner
and the insurer of the lorry that, at the worst, it is
1 MFA No.5673/2001 DD 07.08.2003
19
a case of contributory negligence and, therefore,
the liability to pay the entire compensation cannot
be fastened on the owner and the insurer of the
lorry. In the first place, it needs to be noticed that
the plea of contributory negligence is not taken in
the written statement filed by the respondent
No.2/Insurance Company. Respondent Nos.1 and
3 did not file the written statement at all.In the
case of Pandian Roadways Corporation,
Madurai vs. Karunanithi and another(air 1982
Mad 104: 1982 ACJ 186: 1982 TAC 356), it is
held that plea of contributory negligence should be
taken in the written statement before the Claims
Tribunal. Further more, in the case of M/s
Yatayat Nigam, Udaipur vs. Union of India(AIR
1983 Rj 17: 1983 ACJ 312; 1983 TAC 480), it
is held that where negligence of plaintiff’s bus
driver was not pleaded by the defendant, no issue
was framed by the trial Court covering
contributory negligence and no evidence was led,
Rajasthan High Court took an exception to the
judgment of the Appellate Court in making out a
new case with regard to contributory negligence.”
20
21. The principle of contributory negligence is that
plaintiff’s negligence is attracted in part to his own
harm and would thus reduce the damages payable to
him and as such, it affects the measure of damages.
22. In the present case, contributory negligence of the
bus driver was not pleaded by the insurer. No issue
was framed by the MACT covering contributory
negligence and no evidence was led and therefore, a new
case in regard to contributory negligence cannot be
made out.
23. In General Manager, Bangalore Transport
Service vs. N.Narasimhiah and others2, a co-ordinate
Division Bench observed thus:
“If it is found that the negligent act or
omission of a driver was the proximate and
efficient cause of an accident, it will not be a
valid defence to say that the person injured was
also negligent unless it is shown that the person
21
injured had made it extremely difficult for the
other to avoid the accident”.
24. In Sharada Bai vs. Karnataka State Road
Transport Corporation3, another co-ordinate Division
Bench observed thus:
“If the tort-feasor’s negligence or breach of duty
is established as causative of the damage, the
onus is on him to establish that the victim’s
contributory-negligence was a substantial or co-
operating cause. In order to establish the defence
of contributory negligence the propounder of that
defence must prove, first, that the victim failed to
take reasonable care of himself or, in other words,
such care as a man of ordinary prudence would
have done and that was a contributory-cause of
the accident. The amount of care which a person
could reasonably be expected to take, must needs
vary with the circumstances and conditions
actually prevailing at the material point of time.
However, it is relevant to note that, in order to
discharge the burden of proof, it is unnecessary
for the propounder of that defence to adduce
2 1976 ACJ 379
22
evidence about the matter. Contributory
negligence can be - and very often is - inferred
from the evidence already adduced on the
claimants behalf or from the perceptive facts,
either admitted or found established, on a balance
of probabilities in the case.”
25. In Pramodkumar Rasikbhai Jhaveri vs.
Karmasey Kunvargi Tak and others4, the Apex
Court, having regard to contributory negligence
observed thus:
“10. It has been accepted as a valid principle
by various judicial authorities that where, by his
negligence, if one party places another in a
situation of danger, which compels that other to
act quickly in order to extricate himself, it does
not amount to contributory negligence if that other
acts in a way, which, with the benefit of hindsight,
is shown not to have been the best way out of the
difficulty. In Swadling vs. Cooper5 AC at p.9
Lord Hailsham said: (All ER p.260 D-E)
3 ILR 1987 KAR 2730
4 (2002)6 SCC 455
5 1931 AC 1
23
“Mere failure to avoid the collision by taking
some extraordinary precaution does not in
itself constitute negligence. The plaintiff has
no right to complain if in the agony of the
collision the defendant fails to take some step
which might have prevented a collision unless
that step is one which a reasonably careful
man would fairly be expected to take in the
circumstances.”
26. In Municipal Corporation of Greater Bombay
vs. Laxman Iyer and another6, the Apex Court
observed thus:
“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
6 (2003)8 SCC 731
24
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 or
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
25
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 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
26
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
composite negligence. (See Pollock on Torts, 15th
Edn., p. 361.)
27
7. At this juncture, it is necessary to refer to the
“doctrine of last opportunity”. The said doctrine is
said to have emanated from the principle
enunciated in Davies vs. Mann [(1842) 10 M&W
546] which has often been explained as amounting
to a rule that when both parties are careless the
party which has the last opportunity of avoiding
the results of the other’s carelessness is alone
liable. However, according to Lord Denning it is
not a principle of law, but a test of causation. [See
Davies v. Swan Motor Co. (Swansea) Ltd. (1949) 2
KB 291)] Though in some decisions, the doctrine
has been applied by courts, after the decisions of
the House of Lord in Volute [(1922) 1 AC 129)] and
Swadling v. Cooper, [(1931 AC 1)] it is no longer to
be applied. The sample test is, what was the
cause or what were the causes of the damage. The
act or omission amounting to want of ordinary
care or in defiance of duty or obligation on the
part of the complaining party which conjointly
with the other party’s negligence was the
proximate cause of the accident, renders it one to
be the result of contributory negligence.”
28
27. In Smt. Indira Nehru Gandhi vs Shri Raj
Narain7, the Constitution Bench of the Supreme Court,
while disapproving A finding of ‘a defacto agency’
recorded by the Allahabad High Court, which was
neither set up nor was subject matter of an issue,
reiterated well recognized principle that ‘no amount of
evidence could be looked into on a case not really set
up’.
28. In Winfield and Jolowicz on Tort (18th edition),
learned author’s speaking about ‘Duty of Care’ and
‘Standard of Care’ states thus:
Duty of Care
“The existence of a duty of care is, of course,
essential to a cause of action for negligence, but
for contributory negligence it is quite unnecessary
that that the claimant should owe a duty of the
defendant. All that is required is that the claimant
should have failed to take reasonable care for his
own safety. One sometimes comes across
references to the claimant owing himself a duty to
7 AIR 1975 SC 2299
29
take care of his own safety, but strictly speaking
this, like the “duty” to mitigate, is a contradiction
in terms. The fact that the defendant is under a
duty of care to guide and supervise the claimant
does not necessarily exclude contributory
negligence if the claimant fails to warn the
defendant that he is “getting out of his depth”.”
Standard of Care
“If what is alleged is negligence by the claimant,
the standard of care expected of him for his own
safety is in general the same as that in negligence
itself and is in the same sense objective and
impersonal, though, as there, some concession is
made towards children and probably towards other
persons suffering from some infirmity of disability
rendering them unable to come up to the normal
standard. Putting aside such exceptional cases, a:
“[P]erson is guilty of contributory negligence if
he ought reasonably to have foreseen that, if he
did not act as a reasonable, prudent man, he
might be hurt himself and in his reckonings he
30
must take into account the possibility of other
being careless.
The degree of want of care which will constitute
contributory negligence varies with the
circumstances: the law certainly does not require the
claimant to proceed on his way like a timorous
fugitive constantly looking over his shoulder for
threats from others. For example, it is not the law
that a pedestrian is guilty of contributory negligence
if he crosses the road without using an “authorised”
crossing.
As with any other aspect of the law of negligence
the standard of care demanded may be adjusted to
meet changing conditions; for example, in Froom v
Butcher the Court of Appeal held that non-use of car
seat belt generally constituted contributory
negligence some seven years before Parliament mad
the wearing of belts compulsory. Now that there is
legislation requiring belts to be worn the correctness
of this decision becomes even more obvious, though
the incidence of criminal liability and contributory
negligence may not be entirely coterminous. For
many years there has been increasing public
awareness of the dangers of smoking and a reduction
was made under the Act for the claimant’s failure to
31
give up where this had made a material contribution
to his lung cancer, which was also cause by the
defendants’ exposure of him to asbestos. However,
although public attitudes towards drinking and
driving have become more severe in recent years, a
person who accepts a lift from a person whom he has
not seen consuming large quantities of alcohol is no
obliged to interrogate him on his consumption.”
29. In the facts noticed supra, the question as to
whether the deceased driver of the bus also contributed
negligence for causing the accident being indisputably a
question of fact, which ought to have emanated from a
plea of contributory negligence as a defence by the
insurer of the offending lorry and having not done so in
the written statement, coupled with the fact that no
issue with respect to contributory negligence is framed
by the MACT nor was evidence adduced in support of
such a claim, while even before us, it is not the
contention of the insurer that deceased also contributed
negligence for causing the accident, we do not think
32
that MACT was justified in attributing contributory
negligence to the deceased also in causing the accident.
Consequently, we cannot sustain the finding of the
MACT insofar as it has attributed 60% contributory
negligence to the deceased.
30. The admitted facts as regards the plea of the
insurer of the offending lorry that the driver of the said
lorry did not possess a valid and effective driving licence
as on the date of accident, except in the statement made
in the written statement, nothing is elicited from the
evidence of R.W.2, CPI, nor, is there any material in the
charge sheet Ex.P.2 over allegations of violation of
Section 3(1) or Section 181 of the Act for not possessing
effective and valid driving licence. In the deposition of
RW-1, the Law Officer of the insurer, makes no
reference to proof of alleged plea that the driver did not
have a valid driving licence. Ex.P.2 in MVC No.89/2011
discloses the name of the accused driver of the lorry as
33
Abdul Gafoor, S/o Abdul Hameed, charged with offence
under the Indian Penal Code. In Ex.R.3, letter of the
Assistant Regional Transport Officer, Bhalki Division,
Bidar, dated 04.07.2012, particulars of driving licence
of the holder by name Abdul Gaffoor, S/o Abdul Mohit
Qureshi, resident of Mohalla Galli, Humnabad, District:
Bidar, is certified to have held driving licence to drive
LMV, MGV and HGV. Therefore, there is a clear crises
over identity of the driver of the offending vehicle, since
the names in the charge sheet and in the
communication, Ex.R.3 differ and hence no credence
could be attached to Ex.R-3 to say that the person
mentioned therein was the driver of vehicle and did not
possess effective driving licence on 24.07.2010. In the
absence of examining the author of Ex.R.3 or any other
office of the Regional Transport Authority, muchless,
evidence of the driver/ accused of the commission of the
offence under IPC who was charge sheeted, there is no
material whatsoever to discharge the burden cast upon
34
Insurance Company under Section 149(1) of the ‘Act’ to
prove that driver of the offending vehicle did not possess
effective and valid driving licence as on the date of
accident.
31. It is useful to refer to the decision of the Apex
Court in Rukmini vs New India Assurance Co.8
though with regard to Section 96(2)(b)(ii) of the MV Act,
1939 by observing thus:
“3. We have seen the only evidence whichthe Insurance Company produced in supportof the plea. This is the evidence of Inspectorof Police who investigated the accident. In
his evidence, PW1 who was the Inspector ofPolice, stated in his examination–in-chief.“My enquiry revealed that the 1st respondentdid not produce the licence to drive theabovesaid scooter. The 1st respondent evenafter my demand did not submit the licence
since he was not having it.” In his cross-examination he has said that it is theInspector of Motor Vehicles who is requiredto check whether the licence is there but hehad not informed the Inspector of MotorVehicles that the 1st respondent was not
having a licence since he thought it was notnecessary. In our view, this evidence is notsufficient to discharge the burden which was
8 (1998)9 SCC 160
35
cast on the Insurance Company. It did notsummon the driver of the vehicle. No recordfrom the road Transport Authority has also
been produced. In these circumstances, theInsurance Company has not discharged theburden cast upon it under Section 96(2) (b)(ii) of the Motor Vehicles Act, 1939. Theimpugned order of the High Court is,therefore, set aside and the order of the
Tribunal is restored. The appeal is allowedaccordingly. No order as to costs.”
(emphasis supplied)
32. In similar though not identical circumstances in
M/s. Oriental Insurance Company Limited vs
Ramesh B. Jain and Others9, in the facts obtained
therein, it was observed that evidence also does not
come to the aid of appellant to discharge its primary
duty to establish that there was a breach of the terms of
the policy in order to secure benefit of sub-section (2) of
Section 149 of the Motor Vehicles Act,1988.
33. Regard being had to burden cast upon the
insurance company under Section 149(2) of the Motor
Vehicles Act, 1988 which when not discharged, MACT
36
was fully justified in fastening liability on the insurer of
the offending lorry to pay compensation.
34. First respondent in MFA No.31412/2013 being the
claimant injured since served with notice and is
unrepresented, the finding the MACT in this order over
contributory negligence, remains undisturbed.
35. The claim for enhancement of compensation by
the claimant in MVC No.969/2010 being appellants in
MFA No.31483/2013 is on the premise that: (a) MACT
was not justified in deducting 1/3rd towards personal
and living expenses of the deceased when he had left
behind a widow , unmarried daughter and three sons all
students in the age group of 18-21; (b) that the award of
`15,000/- towards loss of consortium for the widow is
on the lower side; (c) award of `10,000/- to the children
towards love and affection is on the lower side, award of
9 ILR 2003 KAR 5164
37
`10,000/- towards funeral expenses is also on the lower
side.
36. Learned counsel for insurance company seeks to
sustain the judgment and award over quantum of
compensation as well merited, fully justified and not
calling for interference.
37. Ex.P-7 – salary certificate of the deceased
Manohar – driver of the NEKRTC bus discloses that in
the month of April, 2010 he was paid a gross salary of
`23,738/- and deducting `200/- towards Professional
Tax, net salary of `23,538/- was paid. Deceased was
aged 46 as on the date of accident and death. Adding
30% of the salary towards ‘loss of future prospects’,
equivalent to `7061/-, total salary is `30,599/-.
Deceased having left behind a widow and four children,
one of which is an unmarried daughter, while other
three are students, we think it appropriate to deduct
1/4th towards personal expenses of the deceased.
38
Monthly loss of dependency is `22,949.15, rounded off
to `22,950/- and annual loss of dependency is
`2,75,400/-. Applying multiplier ‘13’ for age 46 of
deceased, total loss of dependency is `35,80,200/- as
against `30,12,100/- awarded by MACT and therefore,
claimants are entitled to difference of `5,68,100/-.
38. Regard being had to decision of Apex Court in
Munnalal Jain vs Vipin Kumar Sharma10, a widow is
entitled to, in the least, `50,000/- towards ‘loss of
consortium’ as against `15,000/- awarded by MACT
and therefore she is entitled to balance of `35,000/-.
39. Children of whom one is an unmarried daughter
and three sons are students, award of `10,000/-
towards ‘love and affection’ is frugal. We think it
appropriate to award `20,000/- in addition which is just
and reasonable entitling the said appellants-2 to 5 an
additional sum of `20,000/-.
10
((2015)6 SCC 347)
39
40. Award of compensation of `10,000/- towards
‘funeral expenses’ is on the lower side and in the light of
aforesaid decision, we think it appropriate to add
another sum of `10,000/-.
41. We find no infirmity in the award of `10,000/-
towards ‘loss of estate’ by MACT.
42. In the result, MFA No.31686/2013 and MFA
No.31412/2013 filed by Insurance Company are
dismissed. Amount in deposit is ordered to be
transmitted to the MACT forthwith.
43. MFA No.31483/2013 is allowed in part. Finding
on contributory negligence is set aside. Actionable
negligence is attributed to the driver of offending lorry
and claimants are entitled to ` 6,33,100/- in addition to
what is awarded by the MACT.
40
44. As regards apportionment of compensation
towards ‘loss of dependency’ shall be in the following
manner:
Widow - 50%
UnmarriedDaughter - 20%
3 sons (equally) - 10%
As regards deposit, to be effected as directed in the
judgment and award of the MACT.
Sd/- JUDGE
Sd/- JUDGE
*sp /kcm