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2008 DIGILAW 491 (JK)

Ranjeet Kour v. Union Of India

2008-12-18

MANSOOR AHMAD MIR

body2008
1. This appeal is directed against the award and judgement dated 24-7-2007 passed by Motor Accidental Claims Tribunal, Anantnag, in claim petition No. 18 titled Ranjit Kour and others Vs. Union of India and another, to the extent of saddling Union of India (respondent No. 1) liable to 50% of the compensation, while holding that the accident was out come of contributory negligence. 2. The question involved in this appeal is whether the Tribunal or the court is within its jurisdiction to hold that accident is out come of contributory negligence, without any specific pleading. The answer is in negative for the following reasons. 3. In order to determine the question formulated above, it is necessary to notice the brief facts of the case. 4. Claimants respondents 1 to 4 are the victims of a vehicular accident, in which their sole bread earner namely Roulda Singh died, caused by respondent No. 2 namely S. Devanthan, Driver while driving army vehicle bearing registration No. 95D 104034A rashly and negligently on 24-5-2004 at Pujteng, Bijbehara National Highway. It is also averred that the deceased was 44 years of age at the time of accident and was earning Rs. 10,000/- as income, being a driver. The deceased was driving TATA Quallis bearing Registration No. HR01L-6152 at the particular point of time and was on his way from Jammu to Srinagar. 5. The appellants appeared and resisted the claim petition and have denied their involvement in any way in the accident. They have also stated in para (d) of the reply that the accident occurred due to rash and negligent driving of the deceased. It is apt to reproduce para (d) of the reply herein: d) That para 12 of the claim petition is admitted to the extent that accident has took place but due to the rash and negligent driving by Shri BRoldha Singh of civil vehicle bearing registration No. HRIL-6152 FS 24D Toyota Qualis Following issues came to be framed in the case: 1. Whether on 24-5-2004 a Military vehicle bearing registration No. 95 D 104034A while coming from Srinagar to Jammu in the military Convoy struck a sumo bearing registration No. HRIL 6152 near Pujteng, Bejbehara while on its way from Jammu to Srinagar, resulting in the death of the deceased namely Rulda Singh, driver of sumo; on spot along with another passenger namely Tarseem Mahajan? OPP 2. OPP 2. Whether the accident was caused due to the rash and negligent driving of the Military vehicle by respondent No.2 while plying offending vehicle owned by the Union of India, Ministry of defence? OPP. 3. Whether the petitioners being the surviving legal heirs of the deceased driver, are entitled to compensation under the provisions of the Motor Vehicles act, to what extent and in what proportion? OPP. 4. Whether respondent No. 1 through its Ministry of Defence is liable to pay the amount of compensation to the petitioners as may be determined by this Tribunal? OPP. 5. Whether the petition is not maintainable as the petitioners have no cause of action against the respondents nor are they entitled to any amount of compensation under the provisions of the M.V.Act? OPD. 6. Whether there is no conclusive proof of the death of the deceased in the alleged accident by the alleged act of the driver of the offending vehicle and in absence of the requisite/authentic medical certificate/report, it is not safe and compulsory to rely on the versions of FIR registered by police concerned and consequently the respondents cannot be held responsible to indemnify the petitioners because of the contributory negligence of the deceased himself? OPD. 6. Parties examined witnesses and the Tribunal after hearing learned counsel for the parties held that the accident was outcome of contributory negligence. The Tribunal has also held that the claimants-appellants/victims of vehicular accident are entitled to the compensation to the tune of Rs. 10,80,000/- and saddled the Union of India respondents with the liability of half of the awarded amount i.e. Rs. 5,40,000/- and Rs. 2000/-, 5000/- and 3000 under the head funeral expenses, consortium and loss of estate respectively and directed the respondents to satisfy the award to the extent of Rs. 5,40,000/- with 6% interest from the date of the claim petition till its final realization i.e. 1-6-2004. 7. It is worthwhile to mention here that the Union of India-respondents have not questioned the award and its liability to the extent of 50%, though the have specifically taken a stand that the their driver, respondent No. 2 was not negligent and careless and he had not caused any accident, but the accident occurred due to the negligence and carelessness of the deceased, as discussed hereinabove. Thus the respondents have accepted the award to that extent. 8. Thus the respondents have accepted the award to that extent. 8. The claimants have examined those drivers as their witnesses who were driving their vehicles at that particular point of time and who witnessed the accident. Only the driver of the offending vehicle and the army official who was traveling in the said vehicle have deposed that the deceased was driving the vehicle in such way that the driver of the offending army vehicle was not in a position to avoid the accident, meaning thereby that they have admitted that had the driver of the army vehicle exercised due care and caution, it could have avoided the accident. 9. FIR came to be lodged and admittedly challan came to be presented before Chief Judicial Magistrate only after against respondent No. 2 driver of the army vehicle and came to be transferred to the Court Martial. It is nowhere stated in the police report that accident was out come of contributory negligence. Had the respondents raised the plea of contributory negligence, then may be, claimants would have examined the Investigating Officer in order to substantiate their plea that the accident was out come of negligence and carelessness of respondent No. 2. The Tribunal has failed to scan the material evidence of the claimants in its right perspective. If at all the respondents would have taken the plea of contributory negligence, that plea is not substantiate by their evidence. There is enough evidence on the file led by the claimants that the accident was out come of rash and negligent driving of respondent No. 2. 10. The Tribunal has lost sight of very important aspect of law that the plea of contributory negligence was not raised and it traveled beyond pleadings. The Tribunal/court cannot carve out that case, which is not pleaded. There is no issue relating to contributory negligence. The apex court in case titled Pramodkumar Rasibhhai Jhaveri Vs. Karmasey Kunvargi Tak & others, AIR 2002 SC 2864 has defined what does contributory negligence mean, when it arise and in which circumstances an accident can be said to be out come of contributory negligence. It has further held that when plea of contributory negligence is not raised or taken, the Tribunal or cannot held that accident is out come of contributory accident. It has further held that when plea of contributory negligence is not raised or taken, the Tribunal or cannot held that accident is out come of contributory accident. It is apt to reproduce relevant para of the judgement hereunder:- ..The question of contributory negligence arises when there has been some act or omission on the claimants 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. 11. The apex court also in case reported as AIR 1996 SC 1274 has laid down the principle when an accident can be said to be outcome of contributory negligence. While applying the said principal to the instant case, it cannot be said that the accident was outcome of contributory negligence, in the given circumstances as discussed hereinabove. 12. For the reasons stated hereinabove, the learned Tribunal has fallen in error while holding that the accident was out of contributory negligence. Accordingly the impugned order dated 24-7-2007 to the extent indicated above is set aside and it is held that the accident was outcome of rash and negligent driving of the respondent no. 2 and issue nos. 1 and 2 are accordingly decided in favour of the claimants. As discussed above, the respondents have not assailed the award by filing appeal or cross objection and thus there is no need to return finding on other issues. 13. It is also worthwhile to mention here that even respondents have not disputed adequacy of compensation and no such argument was addressed by learned counsel for the respondents. As discussed above, the respondents have not assailed the award by filing appeal or cross objection and thus there is no need to return finding on other issues. 13. It is also worthwhile to mention here that even respondents have not disputed adequacy of compensation and no such argument was addressed by learned counsel for the respondents. 14. Having glance over what has been discussed above, this appeal is allowed and award of Rs.10,80,000/- and Rs. 2000/- + Rs. 3000 + Rs. 5000/- under the head funeral expenses, consortium and loss of estate = Rs. 10,90,000/- plus 6% interest from the date of accident till its final realization in favour of the appellants and against the respondents. The appeal is accordingly allowed and the impugned award/judgement modified to the extent indicated above. The respondents are directed to deposit the entire awarded amount within three months from today minus the amount already deposited and disbursed before the Tribunal or before Registry of this court. Send down the record, along with copy of the judgement / award forthwith.