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2006 DIGILAW 606 (GAU)

Arun Saha v. Union of India

2006-06-28

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. In a motor accident on 06.10.2000 at about 10 a.m. on Narayanpur Airport Road under Airport Police Station, the Appellant herein sustained injuries. The vehicle, which was responsible for the accident belonged to Border Security Force (for short 'BSF'), which was a Maruti Gypsi bearing the registration No. MZ-02/0238. That the Appellant sustained injury in the accident involving the above noted vehicle is not in dispute. The dispute between the Appellant and the BSF is with regard to the manner or the way the accident had taken place. According to the Appellant, he along with his brother-in-law was waiting for a bus when the said vehicle driven in a rash and negligent manner had dashed them and thereafter knocked against a telephone post on the extreme eastern side of the road. The Appellant sustained fracture in his right leg for which he had to be under prolonged treatment initially in the G.B. Hospital from 06.10.2000 to 16.11.2000. This version of the Appellant has been disputed by the two witnesses examined by the BSF. The first witness was the Assistant Commandant of the BSF on the date of accident. He admitted that the said vehicle driven by Amar Singh (OPW 2) made an accident near the Airport Gate. An inquiry was made by the BSF, which showed that while the Gipsy was running at a speed of 40 km/hour, a scooter with three riders including the Appellant was at a speed of 60 km/hour and as a matter of fact, that scooter had dashed the Gypsy. The driver Amar Singh had also sustained injury and had to be admitted into the hospital. AFIR was lodged following which an investigation was done by the local police. In the same tune the other witness Amar Singh (OPW 2) blamed the scooter for the accident, which according to him, dashed against the Gypsy. According to him, to avoid accident he pressed the emergency brake, which, however, failed. He admitted in cross that a criminal case was filed against him, which was under investigation and he had obtained bail in connection with that case. 2. Confronted with this rival situation as has been discerned from the evidence of the parties, the learned Trial Court came to hold that both the vehicles were responsible for the accident as they collided each other. 2. Confronted with this rival situation as has been discerned from the evidence of the parties, the learned Trial Court came to hold that both the vehicles were responsible for the accident as they collided each other. Proceeding from this finding, the learned Tribunal after assessing Rs. 1,56,500/- as the amount of compensation directed that the Appellant herein would be entitled to only 50% of the same, i.e. Rs. 78,250/- as he was responsible for contributory negligence. 3. I have heard Mr. T.D. Majumder, learned Counsel for the Appellant and Mr. P.K. Biswas, learned Asstt. S.G. for the Respondents. 4. Though two different version of the accident have been projected by the contending parties, the admitted position remains that in the accident the Appellant had sustained injuries and having regard to the nature of the injuries, he is, but for his contributory negligence, entitled to full amount of Rs. 1,56,500/-. As no appeal has been preferred by the BSF, this position can be said to have been crystallized. The limited question that has fallen for consideration is whether the contributory negligence as observed by the learned Tribunal can be assigned, in the given facts and circumstances of the case, to the Appellant. According to the Appellant, he along with his brother-in-law were waiting for a bus on the roadside when he was knocked down by the said vehicle. On the other hand, the version of OPW 2, the driver of the vehicle is that three persons including the Appellant were riding a scooter at a high speed, which coming from opposite direction had dashed against the Gypsy. Even if the story of the Respondents that the Appellant and two others were riding a scooter and dashed against the Gypsy is believed, the question still remains for consideration whether the Appellant can be held to be contributorily negligent. It is seen, the FIR was lodged by one Rajesh Nath, who witnessed the occurrence, but has not been examined by either of the parties for reasons best known to them. A FIR may not be a substantive piece of evidence in a criminal trial, but may be looked into for the purpose of a proceeding for compensation under the Motor Vehicles Act. The contents of the FIR show that one BSF old Maruti Gypsy had dashed against the scooter after having lost control and then collided with a telephone post. A FIR may not be a substantive piece of evidence in a criminal trial, but may be looked into for the purpose of a proceeding for compensation under the Motor Vehicles Act. The contents of the FIR show that one BSF old Maruti Gypsy had dashed against the scooter after having lost control and then collided with a telephone post. The deposition of OPW 2, on a closer examination, would show that the said Maruti Gypsy had lost control. The said witness stated the following: I pressed upon the Emergency brake of the vehicle and the brake failed. This shows that the brake of the vehicle was not working when the accident had taken place and if this statement is read with what has been stated in the FIR, it would abundantly be clear that the Maruti Gypsy had lost control and in all probabilities it had dashed the scooter causing the accident. Therefore, even if it is accepted that the Appellant was one of the scooter riders, a closer examination of the materials on record would show that the said scooter was not negligent for the said accident. 5. The term 'contributory negligence' is a relative one and it has to be considered on the basis of the facts and circumstances of each case. In Municipal Corporation of Greater Bombay v. Shri Laxman Iyer reported in AIR 2003 SC 4182 , the Supreme Court observed that the act or omission amounting to want of ordinary care can be said to be negligence, which is not an absolute term. To appreciate the question of negligence, the relevant part of the observation on negligence appearing in Para 6 of the said judgment is gainfully quoted below: 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. 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 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 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 other's negligence. 6. The question of contributory negligence has received further focus in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak reported in AIR 2002 SC 2864 . The relevant portion appearing in the said judgment is quoted below: The question of contributory negligence arises when there has been some act or omission on the claimant's part which has materially contributed to the damage caused, and as of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "Contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong." Subject to non requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of Defendants negligence is decided. The standard of reasonable man is as relevant in the case of Plaintiffs contributory negligence as in the case of Defendants negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. 7. The standard of reasonable man is as relevant in the case of Plaintiffs contributory negligence as in the case of Defendants negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. 7. Placing the above principle of contributory negligence in the facts noticed above, the only conclusion that can be drawn is that in no way the Appellant can be held to be responsible for any negligence contributed to the said accident. 8. The Appellant has further contended that the amount assessed by the learned Tribunal is on the very lower side as his monthly income has not been correctly taken for calculation and the certificate of disability to the extent of 50% has not received due consideration. It would appear from the judgment impugned that the assessment has been done taking into account the period he was under treatment in the GB. Hospital and the nature of injury he sustained. Against the claim of Rs. 1,00,000/- towards medical expenses, the learned Tribunal has awarded Rs. 40,000/- on the basis of Exbt. 6 series, which consisted of 42 sheets showing an amount of Rs. 35,675/- spent by the Appellant. After considering that the Appellant being a Post Graduate in Commerce was earning Rs. 30,000/- annually the same was multiplied by 17 to get an amount of Rs. 5,10,000/-. Thus as the Appellant suffered 15% of disability, he was given 15% of the total amount of Rs. 5,10,000/-, which according to the learned Tribunal came to Rs. 1,56,500/-. She reduced it to half because of the contributory negligence on the part of the Appellant. It would thus indicate that the pecuniary loss was the only consideration in making the assessment. The special damages in such a case, which also should be other essential part of the consideration has been left out in the process of assessment employed by the learned Tribunal. 9. Admittedly, the Appellant suffered his disability at the age of 30, which has certainly adverse affect in normal enjoyment of the amenities of the life. He suffered fracture injury on his right leg, which has been permanently disabled to the extent 15%, which would inevitably deprive the Appellant in many ways. Considering all these aspects, I am inclined to award a consolidated amount of Rs. 25,000/- towards special non pecuniary damages. He suffered fracture injury on his right leg, which has been permanently disabled to the extent 15%, which would inevitably deprive the Appellant in many ways. Considering all these aspects, I am inclined to award a consolidated amount of Rs. 25,000/- towards special non pecuniary damages. Thus the total amount of compensation should be Rs. 1,56,5000/-(+) Rs. 25,000/- = Rs. 1,81,500/-. 10. In the result and for the reasons aforementioned, this appeal is allowed to the above extent modifying the award from Rs. 78,250/- to Rs. 1,81,500/-. As regards interest awarded on the amount of Rs. 78,250/- by the learned Tribunal, I am not inclined to interfere with the same. But the enhanced amount awarded hereby, if not paid within three months from the date of passing of this judgment and order, the same shall carry interest @6% per annum from the date of expiry of three months till the date of payment. No cost.