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2014 DIGILAW 21 (CHH)

SOBNATH SAHU v. MOHD. MAHFUJ ALAM

2014-01-21

SANJAY K.AGRAWAL

body2014
ORAL ORDER 1. This is claimants' appeal under Section 173 of the Motor Vehicles Act, 1988 (henceforth 'the Act, 1988') seeking enhancement of the compensation granted under award dated 23-11-2004 passed by 2nd Additional Motor Accidents Claims Tribunal, Mahasamund (henceforth 'the Claims Tribunal') in Claim Case No. 105/2003 as also challenging the finding of the Claims Tribunal with regard to contributory negligence on the part of their son deceased Tirath Raj. 2. By the impugned award, the Claims Tribunal, holding the age of the deceased as 35 years, taking monthly income of the deceased as Rs.2,000/-, deducting ½ towards his personal and living expenses and applying multiplier of 13, has assessed the compensation of Rs.1,56,000/- towards dependency. Adding a sum of Rs.2,000/- towards funeral expenses and a sum of Rs.2,500/- towards loss of estate, the Claims Tribunal has assessed total compensation of Rs.1,60,500/-. 3. The Claims Tribunal has further held that the deceased was also contributory negligent to the accident to the extent of 50% and, therefore, made a deduction of 50% from the compensation assessed towards the contributory negligence and awarded compensation of Rs.80,250/- along with interest @ 8% per annum in favour of the claimants. 4. Shri Amiyakant Tiwari and Shri Shivendu Pandya, learned counsel appearing for the appellants/claimants would submit that the finding of contributory negligence is bad in law and the quantum of compensation is on lower side. 5. Shri Sudhir Agrawal, learned counsel appearing for respondent No.3/insurance company would support the impugned award and oppose the appeal. 6. I have heard and considered the rival submissions and have perused the record of the claim case. 7. I shall first examine the validity of the finding with regard to contributory negligence. 8. A bare perusal of the record of the claim case would show that an offence under Section 304-A read with Sections 279, 337 and 338 of the Indian Penal Code has been registered and charge-sheet has been filed against the driver of the offending truck, namely, Mohd. Mahfuj Alam and a criminal case is pending against him for consideration in the jurisdictional criminal Court. Apart from this, other documents have also been filed before the Claims Tribunal showing rash and negligent driving of the offending truck. Satish Kumar panigrahi, who was the occupant of the Bolero, has also been examined as AW-3. Mahfuj Alam and a criminal case is pending against him for consideration in the jurisdictional criminal Court. Apart from this, other documents have also been filed before the Claims Tribunal showing rash and negligent driving of the offending truck. Satish Kumar panigrahi, who was the occupant of the Bolero, has also been examined as AW-3. He has also proved the rash and negligent driving of the offending truck on the part of respondent Mohd. Mahfuj Alam. Apart from this, the insurance company has not led any evidence to establish any contributory negligence on the part of deceased Tirath Raj. No independent evidence has been brought on record to hold that deceased Tirath Raj was contributory negligent. 9. It is well settled that a party taking plea with regard to contributory negligence on the part of the victim must lead evidence with regard thereto and unless such evidence is led by the party, the plea with regard to the contributory negligence cannot succeed. The party must state specifically that there was some causal connection of the deceased with the damage suffered by it to hold that the conduct of the deceased amounted to contributory negligence. Similarly, there had to be some connection on the part of the deceased showing absence of reasonable care for his own safety which contributed to the damage. 10. In the "Law of Torts" by Justice G.P. Singh, the following propositions of law regarding contributory negligence have been stated: "It is to be noted that negligence of the plaintiff which can be described as contributory negligence must have casual connection with the damage suffered by him." "The question simply is whether the plaintiff or the deceased (in case of claims arising out of death) had failed to take reasonable care or his own safety which had contributed to the damage." 11. In Municipal Corporation of Greater Bombay Vs. Shri Laxman lyer and another AIR 2003 SC 4182 : (2003) 8 SCC 731 , the Supreme Court held as under: "6. ...... Where an accident is due to negligence of both parties, substantially there would be 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 whichever party could have avoided the consequence of other's would be liable for the accident. ...... Where an accident is due to negligence of both parties, substantially there would be 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 whichever party could have avoided the consequence of other's would be liable for the accident. It 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 Charles worth on Negligence, 3rd Edn. Page 328). It is now well settled that in the case of contributory negligence, Courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages are 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." 12. In Pramodkumar Rasikbhai Jhavei Vs. Karmasey Kunvargi Tak and others (2002) 6 SCC 455 , the Supreme Court held as under: "8. We do not think that these two reasons given by the High Court fully justify the accepted principles of contributory negligence. 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 is 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”. 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”. 9. 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 defendant’s negligence is decided. The standard of reasonable man is as relevant in the case of plaintiff’s contributory negligence as in the case of defendant’s negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley Vs. Austrust Ltd. (1999) 73 ALJR 403 is worthy of quoting: “A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence in other cases, the nature of the duty may reduce the plaintiff’s share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property." 13. In a recent decision in Minu Rout and another Vs. Satya Pradyumna Mohapatra and others 2013 AIR SCW 5375, the plea of contributory negligence was taken by the Insurance Company but, no independent witness was examined to prove the allegation of contributory negligence. In a recent decision in Minu Rout and another Vs. Satya Pradyumna Mohapatra and others 2013 AIR SCW 5375, the plea of contributory negligence was taken by the Insurance Company but, no independent witness was examined to prove the allegation of contributory negligence. The Supreme Court, while setting aside the finding of contributory negligence, held as under: "12. .... The Tribunal ought to have seen that non production of FIR has no consequence for the reason that charge sheet was filed against the truck driver for the offences punishable under Sections 279 read with Section 302 of IPC read with the provisions of the M.V. Act. The Insurance Company, though claimed permission under Section 170 (b) of the Motor Vehicles Act, 1988 from the Tribunal to contest the proceedings by availing the defence of the owner Of the offending Verile, it did not choose to examine either the driver of the truck or any other independent eye witness to prove the allegation of contributory negligence on the part of the deceased Susil Rout on account of which the accident took place as he was driving the car in a rash and negligent manner. In the absence of rebuttal evidence adduced on record by the Tribunal, the Tribunal should not have placed reliance on the charge-sheet Exh. 1 in which the deceased driver was mentioned as an accused and on his death; his name was deleted from the charge sheet. The Tribunal has referred to certain stray answers elicited from the evidence of PW2 and PW3 in their cross-examination and placed reliance on them to record the finding on issue No. 1. For the aforesaid reasons, the findings and reasons recorded by the Tribunal on the contentious issue No.1 holding that there is contributory negligence on the part of the deceased driver in the absence of legal evidence adduced by the Insurance Company to prove the plea taken by it that accident did not take place on account of rash and negligent driving of the truck driver is erroneous in law." 14. Thus, applying the law laid down, in the aforesaid cases, I arrive at a conclusion that the finding that deceased Tirath Raj was contributory negligent for the accident to the extent of 50% is erroneous for want of proper pleadings and evidence and, therefore, I hereby set aside the said finding.' 15. Thus, applying the law laid down, in the aforesaid cases, I arrive at a conclusion that the finding that deceased Tirath Raj was contributory negligent for the accident to the extent of 50% is erroneous for want of proper pleadings and evidence and, therefore, I hereby set aside the said finding.' 15. The determination of issue with regard to contributory negligence brings me to determination of quantum of compensation. 16. The income of the deceased Bolero driver has been taken by the Claims Tribunal as Rs.2,000/- per month and the accident had occurred on 27-11-2002. The assessment of income appears to be on lower side. The Bolero driver, being skilled in the year 2002, cannot be held to be earning less than If 3,000/- per month. After deduction of ½ towards his personal and living expenses, as he was a bachelor, monthly dependency comes to If 1,500/- and yearly Rs.18,000/-. Applying the multiplier of 13, the compensation towards loss of dependency comes to Rs.2,34,000/-. I also award a sum of Rs.10,000/- towards funeral, expenses and a sum of Rs.5,000/- towards loss of estate. Thus, I award compensation in favour of the claimants as under: S.No. Head Amount of Compensation (Rs.) 1. For Loss of Dependency 2,34,000 2. For Funeral Expenses 10,000 3. For Loss of Estate 5,000 Total 2,49,000 17. Thus, the claimants are awarded total compensation of Rs.2,49,000/- and the total compensation awarded by the Claims Tribunal is enhanced from Rs.80,250/- to Rs.2,49,000/-. The claimants shall ,also be entitled to get simple interest on the amount of Rs.2,49,000/- @ 8% per annum from the date of filing the claim application before the Claims Tribunal till realisation of the full compensation. The amount of total compensation of Rs.2,49,000/- alongwith the interest shall be deposited in the Claims Tribunal within a period of two months from today. The amount already deposited towards compensation shall be adjustable. Rest of the impugned award shall remain unchanged. 18. Consequently, the appeal is allowed in part to the extent indicated above. No order as to costs. Appeal Partly Allowed.