MACC Negligence Principles

Negligence

Principles

1       Whether it is necessary for the claimant to prove rash and negligent driving in claim u/s 166 M.V. Act. ? Held Yes.

The claim for compensation was filed by parents of the deceased under S.166 and not under S.163A, therefore, the burden to prove an act of rash and negligent driving by the driver of the vehicle was on claimants.  If they failed to discharge it by adducing cogent evidence, then rejection of the claim filed by claimants under S. 166 was proper. Surinder Kumar Arora and Anr. v. Dr. Manoj Bisla and Ors., A.I.R. 2012 S.C. 1918.

The victim of an accident or his dependents has an option either to proceed under S. 166 or section 163–A of the Act. Once they approach the Tribunal under section 166, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. Oriental Insurance Company Limited Vs Meena Varial, (2007) 3 SCC 428: A.I.R. 2007 S.C. 1609

Where an accident occurs owing to rash and negligent driving by the driver of the vehicle, resulting in the sufferance of injury or death by any third party, the driver would be liable to pay compensation, therefore. The owner of the vehicle in terms of the Act also becomes liable under the 1988 Act. In the event the vehicle is insured, which in the case of a third party, having regard to subsection (2) of Section 147 of the Act, is mandatory in character, the Insurance Company would statutorily be enjoined to indemnify the owner. 

The insurer, however, would be liable to reimburse the insured to the extent of the damages payable by the owner to the claimants, subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is, therefore, the sine qua non for maintaining an application under Section 166 of the Act. Oriental Insurance Co. Ltd. v. Premlata Shukla and others, 2007 (3) MPHT 225 (SC)

In a motor vehicle accident case, strict proof of accident caused by a particular vehicle in a particular manner may not be possible. The standard of proof beyond a reasonable doubt could not be followed. The claimant can establish their case merely on the touchstone of preponderance of probability. Bimala Devi Vs. Himachal Road Transport Corpn. A.I.R. 2009 S.C. 2819.

2       Non–examination of the driver – adverse inference to be drawn:

The driver is the best witness to prove that there was no rashness or negligence on his part. Where the driver has not been examined, an adverse inference regarding rashness or negligence shall be drawn M.P.S.R.T.C. Vs. Vaijayanti, 1995 ACJ 560 (M.P.) DB Also see: Rani Hemant Kumari vs. New India Insurance Company Ltd., 1974 ACJ 284 (M.P.) K.K. Jain Vs. Masrror Anwar 1990 ACJ 299(M.P.) Pushpa Bai Vs. M/S Ranjit Ginning and Pressing Co. P. Ltd. (1977)2 S.C.C. 745. Gayatri Bai Vs. Narendra 1999 (2) M.P.W.N. 141 D.B. Chanda Devi Vs. Rajendra Singh 2004 A.C.J. 634 M.P. (D.B.) Rajendra Singh Vs. Sheetal Das 1992 A.C.J. 130 M.P. 

The following legal position may be culled out from aforesaid authorities. If the driver does not file a written statement; does not give any explanation as to the circumstances in which the accident took place and does not appear in the witness box, it can be presumed that the accident was caused due to his negligence. The distinction between Contributory and Composite Negligence:

Negligence 

‘Composite negligence’ and ‘contributory negligence’ – Difference between – Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong–doers– In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them – Where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence – Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence – Where the injured is himself partly liable, the principle of ‘composite negligence’ will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case– The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. A.P.S.R.T.C. & Anr. V. K. Hemalatha & Ors., AIR 2008 SC 2851: MACD 2008 (SC) 302

Composite negligence

Apportionment of inter se liability – No specific evidence led by parties on both sides as to the extent the driver of each truck was responsible for the accident – Both tortfeasors jointly liable to pay compensation. Sushila Bhadoriya and others v. M.P. State Road Transport Corporation and another, 2005 (1) MPLJ 372 (FB)

3       Where the claimant was a pillion rider on a motorcycle, it cannot be said that he had contributed to the accident.

Pintu Vs Hussain, 2011 (II) Durghatana Muawaja Prakaran, (DMP) 243 (M.P.) 

The accident took place due to composite negligence of the drivers of the motorcycle and of a truck – Two girls were travelling as pillion riders on the motorcycle and died owing to injuries sustained in the accident – Deceased girls were not at fault – Tribunal deducted 30% amount out of compensation payable to LR's of deceased girls – Deeming it is to be paid by the owner, driver and insurer of motorcycle – Held, deceased were third parties and no deduction could be made from compensation – In such circumstances whole amount can be recovered from the owner, driver and insurer of one of the vehicles. Lalit v. Abdul Rashid and others, Reported in 2007 ACJ 2771

Head-on Collision: Contributory and composite negligence are two different phrases – Both have different considerations while determining the liability in a motor accident claim. 

Head–to–head collision between a Corporation’s bus and a private bus– The driver of the Corporation’s bus sustained injuries– Spot map shows that the Corporation’s bus was on the correct side of the road, but the private bus came partly to the wrong side– There is evidence to the effect that the injured neither slowed down his bus nor swerved to his left– The Tribunal held both the drivers equally negligent – Finding of Tribunal upheld by the High Court in appeal – Held, Blameworthiness of the two drivers modified from 50:50 to the ratio of 75:25 for the private bus driver and the Corporation bus driver. T.O. Anthony v. Karvarnan & Ors., MACD 2008 (SC) 246

Contributory negligence, determination of in a case of head-on collision – Generally, drivers of both the vehicles should be held responsible who have contributed equally – Law explained. Bijoy Kumar Dugar v. Bidya Dhar Dutta and others, (2006) 3 SCC 242

Where the deceased was riding a scooter and there was a head-on collision between bus and scooter; the driver of the bus was not examined to prove negligence on the part of the deceased;  spot map did not show that the deceased was on the wrong side of the road at the time of the accident; First informant stated in the FIR that the driver of the bus was driving rashly and negligently; contributory negligence of the deceased can not be presumed simply because there was a head-on collision. Smt. Preetibala Vs Irshad Sheikh, Order dated 10–8–2010 passed in M.A. No. 1339/2007 by Indore Bench of the High Court of Madhya Pradesh

4       Computation of compensation in case of a contributory negligence

Computation of compensation in case of contributory negligence – Relevant fact – Who was more responsible for the accident and who had the last opportunity to avoid the accident to be seen. Andhra Pradesh State Road Transport Corporation and another v. K. Hemlatha and others, reported in (2008) 6 SCC 767

5       Carrying more than one pillion rider on the motorcycle:

Violation of S. 128 of the Act, effect of – Carrying more than one pillion rider on the motorcycle in contravention of S. 128 of the Act by a driver – Does not always raise a presumption either regarding contributory negligence on the part of motorcyclist or pillion rider or regarding composite negligence on the part of motorcyclist – It is only when the causal connection is established between the accident and the violation of the provision of S.128 of the Act that the question of contributory or of composite negligence can arise. Devisingh v. Vikramsingh and others,   2007 (4) MPHT 535

6       MOTOR VEHICLES ACT, 1988 – Section 166 

Contributory Negligence – Deceased sitting on a two-wheeler as pillion rider – The two-wheeler carrying three persons – Finding of contributory negligence is unsustainable. (Devisingh v. Vikram Singh, 2008 ACJ 393 (M.P.) (FB) relied on) Narmada Prasad Choure and others v. Nanakram Pavar and others  Judgment dated 16.01.2012 passed by the High Court of M.P. in M.A. No. 4905 of 2010, reported in 2013 ACJ 2008 (M.P.)

Extracts from Judgment:

  After having heard learned counsel appearing for the parties and on perusal of the record, it is seen that on 15.1.2010 when the deceased was sitting as pillion rider on a motorcycle it was dashed by a truck bearing registration No. MH 31-CB 2835 from behind. Even if three persons were sitting on a motorcycle but as per the judgment of Full Bench of this court in the case of Devisingh v. Vikramsingh, 2008 ACJ 393 (M.P.)(FB), the finding of contributory negligence is unsustainable in law, therefore it is hereby set aside.

7       Driving vehicles without licence – Itself no negligence:

Person driving vehicle without licence – Itself no negligence. If a person drives a vehicle without a licence, he commits an offence.  The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident –  It has been held by the courts below it was the driver of the mini-truck which was being driven rashly and negligently –  It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently –  If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held guilty of contributory negligence. Sudhir Kumar Rana v. Surinder Singh & Ors.,  AIR 2008 SC 2405

8       Contributory Negligence and Children:

The doctrine of contributory negligence – Ordinarily not applicable in case of children with the same force as in case of adults – Ordinarily the same is a question of fact. Vehicle requisitioned by statutory authority under the statue Sudhir Kumar Rana v. Surinder Singh, AIR 2008 SUPREME COURT 2405 

9       Negligence – Necessary parties – Apportionment of liability Whether Owner / Driver or Insurer of both the vehicles are necessary parties?

Held no. In the case of joint tortfeasors where the liability is joint and several, it is the choice of the claimant to implead either driver, owner, and insurer of one of the vehicles or both of the vehicles. In the former case, the whole amount of compensation may be recovered from one of the joint tortfeasors. There is no necessity to apportion the liability of joint tortfeasors. Where, however, both the drivers are before the tribunal as witnesses, the Court may apportion the liability. Sushila Bhadoriya and others v. M.P. State Road Transport Corporation and another, Reported in 2005 (1) MPL J 372 (FB)

10     Deceased travelling on the rooftop of the bus:

Deceased travelling on the rooftop of the bus – Whether it amounts to contributory negligence on the part of the driver/conductor of the bus and the deceased? Held, yes. Manager, The Oriental Insurance Company Ltd. v. Mantola and others, 2006 (3) MPHT 115 (DB) 

1.     Claimant kept his hand outside the vehicle – He had contributed:

* Contributory negligence – The accident occurred due to collision between the vehicle in which claimant was travelling and the offending truck – That claimant kept his hand outside the vehicle which ensued in causation of injuries and therefore, he had contributed to the same and the said contributory negligence could be assessed at 25 per cent. Trilok Chand v. Purshottam and others, Reported in 2007 ACJ 2473 (MP) (DB)

2.   Accident was caused due to bad road condition: 

* There were several ditches on the road – Accident was caused due to bad road condition – The truck went in a big ditch – Consequently, steering of the truck pierced the chest and abdomen of the driver – He died on account of the injuries sustained by him in the accident – The Tribunal observed that negligence of the driver has not been pleaded which was necessary to be established – Consequently, under no fault liability, the Tribunal awarded. Champa Pandey and others v. Hardayal Singh and another, 2008 (3) MPLJ 182 (DB)

3.   Accident at Railway Crossing: 

*S.110B – Central Motor Vehicles Rules (1989), R.100(f) – MOTOR VEHICLES  Common law duties of driver of motor vehicle while crossing such crossing – Writing on sign board requiring vehicle to stop and also requiring conductor of vehicle to 'get down' for checking as contemplated by Rule, not visible – There was no duty in absence of sign board on driver or conductor – However, common law duty 'to stop, see and hear' was there nevertheless – Driver not stopping vehicle at the level crossing – Held, driver was guilty of negligence even though there was no curve or obstruction at the point.

Railways Act (9 of 1890), S.13.

Contributory negligence – Accident at unmanned Railway level crossing – Negligence of Railway proved – Railway however, cannot plead contributory negligence on part of passengers of other vehicle involved even if driver of vehicle was negligent.

Torts – Doctrine of imputation – Applicability.

(C) Motor Vehicles Act (59 of 1988), S.169 – MOTOR VEHICLES – RAILWAY – Procedure before Tribunal – Railway bus collision – Claim for compensation against Railways as represented by Union of India filed by dependent of deceased passengers of bus – Wide issued framed by claims Tribunals as to whether accident was caused due to negligence of all or any of  respondents or of bus driver – Claimants and bus owner elaborately cross–examined by Railways – Railways also leading evidence on their side – Objection cannot be raised that there was no pleading in regard to negligence of Railway.

Common law duties – Driver of bus not familiar with place where accident occurred – No caution board or other indication to show that road was cutting across railway line – No gates or hand rails to alert passer–by – Railway should be deemed to be negligent.

Railways Act (9 of 1890), S.13. Union of India, Appellant v. United India Insurance Co. Ltd. and others A.I.R. 1998 S.C. 640. 

*Accident happened in a manned level crossing which was not closed when bus crossed the same and was hit by running train – Accident is solely attributable to the negligence of Railway – Claim for compensation before Motor Accidents Claims Tribunal – Not tenable – Award, however, passed by Tribunal granting compensation to victims of accident – Special leave petition against by Railways – Court declined to disentitle the victims of the fruits of the award merely on ground that they should have approached competent forum – Since victims at any rate are entitled to compensation from the Railways. G.M., N.F. Railway, Malegaon, Guwahati, Petitioner v. Jitendra Shah and othe. A.I.R. 2000 S.C. 3398

MOTOR VEHICLES ACT, 1988 – Section 166 RAILWAYS ACT, 1989 – Section 161

Unmanned level crossing – A two wheeler passing through unmanned level crossing, hit by a railway engine causing death of driver of two wheeler and injuries to pillion rider – Driver of engine was not examined by appellants – On the basis of the statement of pillion rider, Tribunal held that accident was caused due to negligence of driver of railway engine – Finding upheld by High Court. Union of India and another v. Omprakash and another Judgment dated 22.07.2011 passed by the High Court of M.P. in M.A. No. 2682 of 2008, reported in 2013 ACJ 1653 (M.P.)

Extracts from Judgment:

The law laid down under section 161 of Railways Act, 1989 is that if any person driving or leading a vehicle is negligent in crossing an unmanned level crossing, he shall be punishable under section 161 of the Railways Act. The word ‘negligent’ has been defined under section 161 of the Railways Act by giving an explanation which reads as under:

Explanation. – For the purposes of this section, ‘negligence’ in relation to any person driving or leading a vehicle in crossing an unmanned level crossing means the crossing of such level crossing by such person –

(a) without stopping or caring to stop the vehicle near such level crossing to observe whether any approaching rolling stock is in sight, or 

(b) even while an approaching rolling stock is in sight.”

After going through the evidence on record, it appears that Rakesh was the best witness, who was pillion rider and who had been examined by the respondent Nos. 1 and 2. Therefore, his statement throws light to prove that under what circumstances the accident occurred. In the facts and circumstances of the case, this court is of the view that the learned Tribunal after due appreciation of the evidence has rightly concluded that the accident occurred because of negligence on the part of driver of the engine. Moreover, driver of the engine was in employment of the appellants, he was not examined by the appellants for reasons best known to them.

4.   Specific Instances:

*Weather owner or driver of a vehicle can be held responsible for an accident which was caused by explosion on account of planting bomb under a bridge over which the vehicle passed? Held No. Union of India and another Vs. Bhagri and others 2012 (3) M.P.H.T. 117.

*Where a bomb was planted inside the truck and the truck was blown up leading to the death of several persons traveling in the truck, the owner and the driver cannot be absolved of their liability to compensation since they failed to ensure that there was no bomb inside the truck especially when truck was plied in area of high security alert. Samir Chandra Vs. Managing Director, Assam State, Transport Corp. 1998 (7) Supreme 66,

*Deceased was sleeping in shadow beneath the tractor–trolley. Driver rashly and negligently started tractor due to witch head of the deceased came under the rear wheel of the trolley. Tribunal arrived at the conclusion that the deceased has contributed to the accident to the extent of 50%. In appeal it is held that deceased has not  at all contributed to the accident. The driver head full opportunity to avoid the accident either awakening the deceased or by taking the tractor forward. Instead, he started the tractor without ascertaining whether someone is sleeping beneath the trolley.  It cannot be held that deceased had contributed to the accident. Shakuntala Vs. Ghanshyam 2008 (2) M.P.H.T. 449 D.B.

*The deceased was travelling on the roof top of the bus, whether it amounts to contributory negligence on the part of driver / conductor of the bus and the deceased ? Held, yes. Manager, the Oriental Insurance Company Ltd. Vs. Mantola 2006 (3) M.P.H.T. 115 D.B. 

 *Accident due to collision of truck and jeep – Deceased travelling in jeep – Finding of fact that there was no negligence by driver of the jeep – Only because truck was not insured – Appellant–insurer of jeep cannot be made liable to pay compensation. New India Assurance Co. Ltd. v. Bismillah Bai and Ors. A.I.R. 2009 S.C. (suppl.) 2289.

*Weather admission in pleading in regard to involvement of the vehicle in accident is sufficient? Held Yes. 

Owner of vehicle admitted in written statement that vehicle owned by him was involved in accident – Said admission in pleadings would be sufficient to hold that concerned vehicle was involved in accident – Admission was never traversed by the owner. Saroj and others v. Het Lal and others. A.I.R. 2011 S.C. 671.

*When the deceased was alighting from the jeep, all of a sudden driver started the jeep and drove it in a high speed. Deceased fell down and died. Driver of the jeep was fully liable of the accident. Accident caused due to rash and negligent act of the driver. Gaya Prasad Pandey Vs. Yatindra Kumar 2005 (3) M.P.L.J. 373

*Where a truck left the road went on the offside and crashed into a tree, gives rise to presumption of negligence on the part of driver, as in normal course vehicles do not stray off the road and hit trees. Burden of proof is on the other side to explain that accident took place without the negligence of the driver. Anil Titwari Vs. Saheb Singh 2000 (1) M.P.L.J. 59. See also Shambhu Prasad Kori Vs. Gavendra Singh 1998 (2) M.P.L.J. S.N. 10

*Where the deceased was sleeping in front of  an idle truck standing to the extreme left of the road and accident occurred due to a bus hitting truck causing death, the bus driver was held to be negligent. Managing Director M.P.S.R.T. Vs. Bagwati Bai, 1999 (1) M.P.W.N. 30 

*Where drivers of both vehicles approaching a culvert form opposite direction, flashed lights for the other to stop and allow him to pass first and none stopped causing accident, both were held to be negligent. Surendra Kumar Verma Vs. Bahadur Singh,  2001 (2) M.P.W.N. 24.

*Where a tractor parked on jack for repairs, slipped causing accident, the driver was held to be negligent. Kiran Chhabra Vs. Khajji Patel 2002 (1) J.L.J. 277. 

*Where a stationary jeep parked in open area of mines, which was easily visible was dashed against by a dumper and was crushed by the impact killing sitting driver and officer of C.C.F., the driver of  Dumper was held to be liable for the accident. National Insurance Co. Ltd. Vs/ Sahiba Khatun A.I.R. 1998 M.P. 238. 

*It is the responsibility of driver of a City bus to ensure that all passengers have safely alighted from the bus before moving it forward. If he fails to do so, he would be held to responsible for negligence. Beni Bai Vs. A. Salim 1997 (2) M.P.W.N. 179.

*Driver of offending bus lost control due to high speed. Driver is negligent. M.P.S.R.T.C. Vs. Smt. Sushila Bai 1997(2) W.N. 194.

*Driver neither blowing horn nor stopping vehicle to allow pedestrians to pass – driver is rash and also negligent. Lachiyabai Vs. Darshan Singh, 1988 J.L.J. 469.

*Scooterist over taking one bus and colliding with another bus coming from opposite direction – He himself is negligent and not the bus driver. Indramal Vs. General Manager M.P.S.R.T.C.,  1990 J.L.J. 560.

*Injured putting his hand out of running bus – he is not negligent. Driver should keep a safe distance – Driver is found negligent. Suresh Kumar Vs. Pradip Kumar, 1984 M.P.W.N. 410. 

*Truck crashing into a tree due to sudden burst of front tyre – Driver is negligent as the speed was out of control. Thakur Bai Vs. Virath Rustamji Patel, 1983 M.P.W.N. 355.

*Plea of bursting of tyre – such plea to be proved by owner and driver of vehicle – that vehicle was timely inspected – Failure of such proof would give rise to presumption of negligence on the part of driver. Babu Bhi Thakkar Vs. M.P.E.B., 1997 (1) Vidhi Bhasaver 89.

*Driver of bus over taking cart even after seeing truck coming from opposite direction – Bus driver is negligent. M.P.S.R.T.C. Vs. Gumel Singh, 1986 (2) W.N. 157.

*Truck suddenly turned towards deceased – Truck driver was solely responsible. Manorma Devi Vs. N.D. Patel, 1987 (1) W.N. 216.

*Entire Bus along with full load of passengers washed off the bridge. It could not be said that the vehicle washed off because of any sudden strong current. Driver of the vehicle held to be negligent. M.P.S.R.T.C. Vs. Vishambhar Dayal, 1988 M.P.L.J. 571.

*Defence that accident was due to latent mechanical defect. Owner has to prove that all necessary precautions were taken and that defect remained hidden in spite of reasonable care and caution. State of M.P. Vs. S.M.T. Kishore, 1998 (1) M.P.L.J. 245.

MOTOR VEHICLES ACT, 1988 – Section 166 Contributory negligence

Contributory negligence – Collusion between truck and two-wheeler – The two-wheeler of the deceased was dragged up to a stretch of about 20-25 feet on the road after collusion with the truck – The offending truck must have been travelling at a fairly high speed and that its driver did not have sufficient control over his vehicle. The driver of the offending truck should have been aware that he was driving a heavy motor vehicle and should have taken sufficient caution – Finding of contributory negligence set aside by Hon’ble the Apex Court. Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma and another, 2014 ACJ 2648 (SC) 

Extracts from the judgment:

With regard to the apportionment made by the Tribunal and the High Court, we are of the view, after considering the facts, evidence produced on record and circumstances of the case on hand, that there was no negligence on the part of the deceased. The courts below have failed to examine the facts of the case on hand with respect to the opinion of this Court given in Juju Kuruvila v. Kunjujamma Mohan, 2013 ACJ 2141 (SC). From the evidence produced on record, the two-wheeler of the deceased was dragged up to a stretch of about 20-25 feet on the road after the collision with the offending truck. We are of the considered view, that to be able to create this kind of enormous effect on the two-wheeler of the deceased, the offending truck must have been travelling at a fairly high speed and that its driver did not have sufficient control over his vehicle. The driver of the offending truck should have been aware that he was driving the heavy motor vehicle and taken sufficient caution. We do not see any direct evidence that shows negligence on the part of the deceased that led to the accident. Therefore, as per the principles laid down by this Court in the case referred to above in this aspect, the contributory negligence apportioned by the courts below on the part of the deceased is set aside.

MOTOR VEHICLES ACT, 1988 – Section 166 Contributory negligence

(i)                    Contributory negligence – Tractor and motor cycle collided in the middle of the road – Tribunal held, drivers were equally negligent – High Court held, the negligence of Tractor driver and motor cyclist  in the ratio of 75 : 25 – Hon’ble the Apex Court held, the motorcyclist was travelling with his two minor children so, he would have taken sufficient caution – No evidence of negligence on his part available on record – Finding of contributory negligence set aside.

(ii)                  Assessment of compensation in injuries cases – Income of agriculturist, who has 30 bighas of irrigated land, must be at least Rs. 5000 p.m. – He suffered 30 % permanent disablement due to fractures of femur, tibia and fibula bones of right leg – Tribunal awarded Rs. 1,22,250 – High Court enhanced it to Rs.  65,000 Rs. – Apex Court further enhanced the compensation and awarded total Rs. 5,80,154 

Kiran v. Sajjan Singh and others Judgment dated 11.09.2014 passed by the Supreme Court in Civil Appeal No. 8632 of 2014, reported in 2014 ACJ 2550 (SC) 

Extracts from the judgment:

With regard to the apportionment of contributory negligence at 25% on the part of the appellant-father and 75% on the driver of the offending tractor as determined by the High Court, we refer to the judgment of this Court in Jiju Kuruvila v. Kunjujamma Mohan, 2013 ACJ 2141 (SC), as it is applicable to facts of the case on hand. In the above case, Joy Kuruvila (the deceased) had a head-on collision with a bus approaching from the opposite side. Joy Kuruvila sustained serious injuries and died on the way to hospital. The Tribunal found that the accident occurred due to the rash and negligent driving of the bus driver. It  apportioned  the contributory negligence between the driver and the deceased in the ratio of 75:25. On the basis of the pleadings & evidence on record, in the above said case, this Court has held thus on the negligence of the driver of the bus:-

I.         “The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles  and  their direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident occurred, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.

II.        Post-mortem report, Exh. A5, shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal and his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. 

III.         The aforesaid evidence, Exh. A5, clearly suggests that deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of the accident. The mere suspicion based on the ‘scene mahazar’, Exh. B2, and the post-mortem report, Exh. A5, cannot take the place of evidence, particularly when the direct evidence like independent eyewitness, PW 3, F.I.R., Exh. A1, charge-sheet, Exh. 4, and F.I. statement, Exh. B1, are on record.” 

The observations made by this Court in the case of Juju Kuruvila (supra) surely apply to the fact situation on hand. Upon thorough examination of the facts and legal evidence on record in the present case, it cannot be said that the appellant-father was rash and negligent just on  the assumption made by the Tribunal that the collision occurred in the middle of the road since the two vehicles were approaching from  opposite directions of the road. However, the only aspect of the case on hand that we can reasonably assume is that the appellant-father would have taken sufficient caution while riding the motorcycle since he was travelling with his two minor children (appellant-minors). Further, upon examining the evidence produced on record, there is no proof showing negligence on the part of the appellant-father. Thus in our view, the contributory negligence apportioned by the High Court at 25% on the appellant-father and 75% on the driver of the offending tractor is erroneous keeping in view the legal principles laid down by this Court on this aspect in the above referred case. Thus, we are of the firm conclusion that the negligence is wholly on the part of the driver of the offending tractor since he was driving the heavier vehicle. Therefore, we set aside the 25% contributory negligence on the part of the appellant-father as apportioned by the High Court.

Further, the courts below have erred in ascertaining the notional income of appellant-father at Rs.1,500/- per month i.e. Rs.18,000/- per annum. On examining the facts,  evidence  produced  on  record  and circumstances of the case on hand, the appellant-father owns 30 bighas of irrigated land in which he was doing agricultural work as per Exhibit-79 Kishtban Khtoni. Keeping in mind the same, the notional income ascertained by the courts below is too less. In our opinion, the appellant-father’s notional income must be at least Rs.5,000/- per month i.e. Rs.60, 000/- per annum. Thus, his loss of future income due to 30% permanent disability suffered by him due to the injuries sustained in this accident, taking the appropriate multiplier of 15 [as per Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., 2009 ACJ 1298 (SC), would be Rs.2,70,000/- [(15 X (30% of 60,000/-)].

MOTOR VEHICLES ACT, 1988 – Sections 166 and 168

Composite negligence – Liability of joint tort-feasors – Whether a claimant can recover entire compensation from one of the joint
tort-feasors particularly, when the composite negligence of the drivers of both trailer-truck and bus is in the ratio of 2/3rd and 1/3rd respectively? Held:

(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.

(ii) In the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

(iii) In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings.

(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.

               Khenyei v. New India Assurance Co. Ltd. and others, 2015 ACJ 1441(SC) (Three Judge Bench) 

                MOTOR VEHICLES ACT, 1988 – Sections 147, 149 (2) and 170 

(i) Whether insurance company is entitled to challenge the award on the ground of non involvement of the alleged vehicle in motor accident or it is entitled to challenge the award only on the ground of breach of policy as provided under section 147 and 149(2) of M.V. Act,1988 ? Held, apart from challenging the award on the ground of breach of policy as provided in section 147 and 149(2), it is also entitled to challenge the award on the ground of non involvement of the alleged vehicle in motor accident. Even in appeal he can challenge the award on above ground though his prayer under section 170 of M.V. Act, 1988 was rejected by Tribunal.

(ii) Appreciation of evidence in motor accident cases – No vehicle number mentioned in F.I.R – It was about an unknown vehicle – Alleged vehicle sized after six months of the accident by I.O.– I.O. was not examined by claimant–Presence of eye witnesses also doubtful – Natural witnesses were not examined by claimant – involvement of the alleged vehicle in motor accident held, not proved. Oriental Insurance Co. Ltd. v. Kalawati and others, 2014 ACJ 2772 

       Extracts from the judgment:

In para 9,10 and 11 of the Supreme Court’s judgment in United India Insurance Co. Ltd. v. Shila Datta, 2011 ACJ 2729 (SC), regarding the propriety of section 170 of the Motor Vehicle Act, it has been held as under:

“(9). The Act does not require the claimants to implead the insurer as a party respondent. But if the claimants choose to implead the insurer as a party, not being a notice under section 149(2), the insurer can urge all grounds and not necessarily the limited grounds mentioned in section 149(2) of the Act. If the insurer is already a respondent (having been impleaded as a party respondent), it need not seek the permission of the Tribunal under section 170 of the Act to raise grounds other than those mentioned in section 149(2) of the Act. The entire scheme and structure of Chapters XI and XII is that the claimant files a claim petition only against the owner and driver and the Tribunal issues notice to the insurer under section 149 (2) so that it can be made liable to pay the amount awarded against the insured   and if necessary, deny liability under the policy of insurance, on any of the grounds mentioned in section 149(2). If an insurer is only a 16otice and not a party respondent, having regard to the decision in National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC), it can defend the claim only on the grounds mentioned in section 149(2) and not any of the other grounds relating to merits available to the insured respondent. This is the position even where the claim proceedings are initiated suo motu under sections 149(7) [sic 166(4)] and 158 (6) of the Act, without any formal application by the claimants, as the insurer is only a 16otice under section 149(2) of the Act.

(10). Section 170 of the Act does not contemplate an insurer making an application for impleadment. Nor does it contemplate the insurer, if he is already impleaded as a party respondent by the claimants, making any application seeking permission to contest the matter on merits. Section 170 proceeds on the assumption that a claim petition is filed by the claimants, or is registered suo motu by the Tribunal, with only the owner and driver of the vehicle as the respondents. It also proceeds on the basis that in such a proceeding, a statutory notice would have been issued by the Tribunal to the insurer so that the insurer may know about its future liability in the claim petition and also resist the claim, on any of the grounds mentioned in section 149(2). Section 170 of the Act also assumes that the Tribunal will hold an inquiry into the claim, where only the claimants and the owner and driver will be the parties. Section 170 provides that if during the course of such inquiry, the Tribunal finds and satisfies itself that there is any collusion between the claimant and the owner/driver or where the owner/driver has failed to contest the claim, the Tribunal may suo motu, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of the claim, who was till then only a 17otice, shall be treated as a party to the proceedings. The insurer so impleaded without prejudice to the provisions of section 149(2), will have the right to contest the claim on all or any of the grounds that are available to the driver/owner.

(11). Therefore, where the insurer is a party respondent, either on account of being impleaded as a party by the Tribunal under section 170 or being impleaded as a party respondents by the claimants in the claim petition voluntarily, it will be entitled to contest the matter by raising all grounds, without being restricted to the grounds available under section 149(2) of the Act. The claim petition is maintainable against the owner and driver without impleading the insurer as a party. When a statutory notice is issued under section 149(2) by the Tribunal, it is clear that such notice is issued   not to implead the insurer as a party respondent but merely to put it on notice that a claim has been made in regard to a policy issued by it and that it will have to bear the liability as and when an award is made in regard to such claim. Therefore, it cannot, as of right, require that it should be impleaded as a party respondent. But it can, however, be made a party respondent either by the claimants voluntarily in the claim petition or by the direction of the Tribunal under section 170 of the Act. Whatever be the reason or ground for the insurer being impleaded as a party, once it is a party respondent, it can raise all contentions that are available to resist the claim”.

The said view has also been endorsed recently by the Hon’ble Apex Court in the unreported judgment Bajaj Allianz General Insurance Company Ltd. v. Kamla Sen, 2014 ACJ 2396 (SC).

Thus having taken into account the above circumstances, it is inferred that the appellant/insurance company has a right to challenge the legality and propriety of the award on the ground of non-involvement of the vehicle in the alleged motor accident claim case. In the instant case, as held earlier, the claimants have utterly failed to have proved the alleged accident to have been caused by the said truck bearing No. M.P.09 K.D.2735 resulting into the death of the deceased Kashiram. Consequently, the Insurance Company is not liable to pay the compensation as awarded by the tribunal vide impugned award.

MOTOR VEHICLES ACT, 1988 Contributory negligence

Contributory negligence – Proof – There must be cogent evidence to prove contributory negligence – If there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased minor scooterist – In the absence of any cogent evidence to prove the plea of contributory negligence, the doctrine of common law cannot be applied since deceased is not even 18 years old who could not have been permitted to drive the scooter. Meera Devi and another v. Himachal Road Transport Corporation and others Judgment dated 10.03.2014 passed by the Supreme Court in Civil Appeal No. 5764 of 2008, reported in 2014 ACJ 1012 (S.C.) (3 Judge Bench)

Extracts from the judgment:

To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case.

MOTOR VEHICLES ACT, 1988 – Sections 166, 168 and 173 Contributory negligence, proof of

Contributory negligence, proof of – Cogent evidence is required to prove plea of contributory negligence – The fact that the deceased scooterist was underage at the time of collision with another vehicle is not in itself sufficient to presume his contributory negligence.Meera Devi and another v. Himachal Pradesh Road Transport Corporation and others, 2014 (3) MPLJ  504 (SC) (3-Judge Bench)

Extracts from the Judgment:

  It is not in dispute that the deceased was the only son of his parents, i.e., the appellants herein. It is also not in dispute that when the collusion between the scooter and the bus took place on the fateful day at a place known as Nabahi, the deceased was driving scooter on his left side towards Sarkaghat from Mandi side. Admittedly, at the site where there was a curve, the bus driver did not blow the horn and the bus was being driven at a very high speed. All this is corroborated from the testimony of PW-3 Lekh Ram, who is stated to be an eye witness to the accident and not related to the deceased scooterist. 

  To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of  the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case. 

MOTOR VEHICLES ACT, 1988 – Sections 166 and 173 Contributory negligence

Accident claim – Contributory negligence – Apportionment of liability – A truck had been parked on a road without any indication at midnight – A Motorcyclist crashed into the truck and died – Tribunal held that the truck-driver and deceased motorcyclist were responsible for the accident in the ratio of 50:50 – High Court held deceased responsible only to the extent of 25% . Kamla Rajput and others v. Vijay Singh Gujar and Others Judgment dated 13.12.2011 passed by the High Court of Madhya Pradesh in M.A. No. 337 of 2008, reported in 2013 ACJ 967

Extracts from Judgment:

The truck bearing registration no. MP 07-G-4315 was standing on a road in the midnight. When the deceased was driving the motor cycle, it dashed the said truck which was standing without any signal. In such a case, the finding of contributory negligence to the extent of 50 per cent is unreasonable. In the opinion of this court, the deceased may be held responsible only to the extent of 25%, particularly when the truck was standing without any signal in the midnight. In such circumstances, the finding of contributory negligence is modified to the above said extent.

MOTOR VEHICLES ACT, 1988 – Section 166 Contributory Negligence of claimant

 Contributory Negligence of claimant – Where driver of offending vehicle remained absent before claims tribunal and criminal case was also registered against him – Holding claimant responsible for 25% of contributory negligence only on the basis of spot map, is not justified – It is not justified to hold claimant liable to th e extent of 25% for accident. Jagdish v. Abdul Shakil and others  Judgment dated 13.07.2012 passed by High Court of M.P. in M.A. No. 118 of 2012, reported in 2013 ACJ 1148

Extracts from Judgment:

 Since the respondent No.1 remained absent and criminal case was registered against him, therefore, this court is of the view that there was no justification on the part of the learned Tribunal i n holding the appellant liable to the extent 25 per cent for the accident only on the basis of spot map. So far as amount is concerned, looking to the injuries sustained by the appellant amount awarded is on lower side which deserves to be enhan ced. Appellant is entitled for the following amount:

For permanent disability Rs.1,00,000

For medical expenses Rs. 50,000

For Special diet Rs. 20,000

For transportation Rs. 20,000

For loss of income Rs. 20,000

For pain and suffering Rs. 20,000

For attendant Rs. 20,000

Total Rs.2,50,000