In Civil Appeal No.2538 Of 2009-BOM HC- Question of contributory negligence will not arise if there is no negligence which can be attributed to deceased due to which accident occurred: Bombay HC Justices G.S. Patel & Madhav J Jamdar [13-04-2022]

Read Order: NAMRATA ANIL YADAV AND ORS Vs. BHUPENDRA MANOHAR BHOIR AND ORS

Mansimran Kaur 

Mumbai, April 19, 2022: While partly allowing an appeal assailing the impugned judgment of the Motor Accidents Claims Tribunal, the Bombay High Court has observed that there was no contributory negligence on the part of the deceased and no adverse finding could be recorded against the appellants/claimants in the present case.

Elaborating on the principles of contributory negligence, the Division Bench of Justice G.S. Patel and Justice Madhav J Jamdar asserted, “In this case, there is no negligence which can be attributed to the deceased due to which the accident had taken place. Therefore, there is no question of contributory negligence.”

The appellants/original claimants instituted First Appeal under Section 173 of the Motor Vehicles Act, 1988 assailing the legality and validity of the judgment and award dated October 19, 2006 passed by the Chairman, MACT, Thane. The appellants prayed for enhancement in the compensation awarded. The compensation of  Rs.2,58,44,336 was awarded, however only Rs. 1,03,38,144  was granted as the Tribunal observed that it was a case of contributory negligence. The Tribunal portioned the negligence between the deceased and the driver of the offending tempo as 60% and 40 % respectively. The appellants assailed the same and claimed that the deceased had no contribution in the occurrence of the accident.

The Counsel for the appellant contended the non involvement of the deceased in the occurrence of the accident by mentioning the evidence of Vikas Kisan Kuthale and Amit Venugopal Nayar. He relied on the spot Panchanama dated 2nd February 2021. He submitted that the evidence on record clearly shows that the accident had taken place solely due to the rash and negligent driving by the driver of the offending tempo and therefore the Appellants are entitled to 100% compensation. 

On the other hand, Mr. Rajesh Kanojia, learned counsel for the Respondents, submitted that the said alleged eye witnesses namely, Vikas Kisan Kauthale (AW-2) and Amit Venugopal Nair (AW-3), were not mentioned as eye witnesses in the Police record. He submitted that therefore they cannot be considered as eye witnesses and their evidence cannot be relied on. He submitted that the Police have filed FIR against the deceased under Sections 279, 337, 338, 304-A and 427 of the Indian Penal Code, 1860 read with Section 184 of the Motor Vehicles Act, 1988. He therefore submitted that there is no substance in the contention that there is no contributory negligence by the deceased. He further submitted that the learned Tribunal has rightly held that there is 60% negligence of the deceased and therefore it has been rightly held that the Appellants are entitled only to 40% of the computed compensation. He submitted that therefore no interference in the impugned judgement and award is warranted.

The Counsel for the appellant submitted that in the case of Bimla Devi and Ors vs. Himachal Road Transport Corp., the burden of proof as per Section 106 of the Indian Evidence Act was shifted on the respondents as the claimants were not present at the place of the occurrence. It was further submitted that facts narrated by the claimants were supported by the eye witnesses AW-2 and AW-3 . It was also stated that the Tribunal made a finding that the case of contributory negligence only on the ground that damage was caused to the front portion of the car as recorded in the panchnama.  

 As far as  computation of  compensation was concerned, the Counsel  relied on the judgment of the Supreme Court in New India Assurance Company Limited vs Somwati & Ors . It was  submitted that the respondents did  not file an appeal challenging the correctness of the amount awarded under the head loss of love and affection and therefore the same couldnot be reduced.

The Counsel for the respondent submitted that none of the Police documents  suggested the negligence on the part of the insured vehicle i.e. tempo but only pointed out to the sole negligence on the part of the deceased. It was further submitted that the crime was only registered against the deceased who was driving the car and not against the tempo driver, reason being  that the tempo was at slow pace and there was no scope of negligence.  On the point of compensation, he submitted that loss of consortium, loss of care and guidance and funeral expenses were awarded as per judgment in Rajesh & Ors v Rajbir Singh & Ors, he submitted the same was not a binding precedent and  therefore the compensation award shall be reconsidered. He also relied on the judgment of the Supreme Court in  National Insurance v Pranay Sethi saying that compensation under heads of future prospects, Consortium, Funeral expenses and Loss of estate should be as per the said judgment.

This Court heard the submission of both the sides at length and after considering the same, the Court took note of the evidence of AW-2, the eye witness and submitted that the eye witness himself stated that the deceased was driving the car slowly with moderate speed. It was further opined that the offending tempo was at an excessive high speed and it suddenly stopped due to the speed breakers ahead and this led to the collusion of the  motor car of the deceased with the tempo. It was further submitted by the eye witness that the police never called him to record his statement. The Court observed that the evidence of AW-2 was not diluted at the time of cross- examination by the second respondent and thus declaring the evidence of AW-2 as credible, the Court relied upon  the same. 

Similar statement was made by the other eye witness AW-3 in the instant case. The Court also noted that the above mentioned evidence was also considered by the Tribunal and was also corroborated by the spot panchnama. The contents of spot panchnama clearly corroborated the deposition of these eye-witnesses regarding the manner in which the accident in question had taken place.

The contention raised by the Counsel for the respondent that the name of these eye witnesses was not in the police record and hence could not be taken as evidence was answered by the Court stating that both the witnesses gave their cell phone numbers to the police, however they were never called to record the statement. It was also submitted that the two eyewitnesses were not co-related to each other or to the family of the deceased.   It was also noted by this Court that though the owner of the offending tempo and the driver were available, still the  FIR  was on the basis of false contention that the accident took place due to negligence of the deceased and the same  was lodged by the police constable Pramod Vithal Mengal.

The contents of FIR, spot panchnama and other police records clearly showed that a false record was created to support the contention that the accident had taken place due to the negligence of the deceased, the Court remarked. 

The Court then assessed the contributory negligence portion of the impugned judgment of the Tribunal and while analyzing the same, this Court referred to the case of  Pramod Kumar Rasikbhai Jhaveri vs Karamsey Kunvargi Tak & Ors, wherein the  Supreme Court has held that 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. 

 Another case of  Municipal Corporation of Greater Bombay vs Laxman Iyer & Anr, was referred wherein the  Apex Court held that  it  held that contributory negligence is applicable solely to the conduct of a plaintiff.

Thus in view of above findings and after taking into consideration all the relevant materials on record it was concluded that the accident took place solely on the account of rash and negligent driving of the tempo driver and the contributory negligence on the part of the deceased was not traced in the present case. 

Another question of law that was  determined was  whether adverse findings  can be recorded in the appeal filed by the appellants i.e. the claimants in the absence of any appeal filed by the respondents.

It was observed that  there was substance in the contention of the appellant  that in his appeal i.e. appeal filed by the claimants, no adverse order could be passed against the appellants-claimants and to support his submission that no adverse order be passed against the appellants, he had rightly relied on the judgment in the matter of New India Assurance Case (supra).

On the issue of compensation the Court referred to the judgement of the Supreme Court in the matter of United India Insurance Company vs Shila Datta & Ors wherein it was  has held that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute. 

Since, the accident took place solely due to the rash and negligent driving of the tempo driver, the appellants were entitled to compensation upto the extent of 100%. It was also observed that the respondents had not challenged the award by way of appeal therefore their submissions in respect to compensation couldnot be entertained. 

In view of the above submissions, the First Appeal was partly allowed by modifying the order of the Tribunal with respect to contributory negligence and compensation.