Delhi High Court
Rajni & Ors. vs Union Of India & Ors. on 8 March, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 8th March, 2017
+ MAC.APP. 723/2015
RAJNI & ORS. ..... Appellants
Through: Mr. Anshuman Bal, Adv.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Vivekanand Mishra, Adv. for
Respondents No.1 and 2.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The appellant has challenged the award of the Claims Tribunal
whereby compensation of Rs.29,32,776/- has been awarded to the
appellants. The appellants seek enhancement of the award amount.
2. On 25th August, 2012 at about 02:10 p.m., Naveen Kumar Singh
was going on his motorcycle near Swatantra Bharati Karyalaya,
Gopinath Bazar, Delhi Cantt when an army truck bearing
No.11C092076H (332) took a left turn towards Swatantra
Bharati Karyalaya and hit the motorcycle which resulted in the death
of Naveen Kumar Singh.
3. The deceased was aged 23 years at the time of the accident and
was survived by his parents and two sisters, who filed the claim before
the Claims Tribunal. The deceased was working as LDC with
Engineer Stores Depot of Indian Army at Delhi Cantt. and was earning
Rs.18,355/- per month. The Claims Tribunal took the income of the
deceased as Rs.18,355/- per month, added 50% towards future
prospects, deducted 1/3rd towards his personal expenses and applied
the multiplier of 18 to compute the loss of dependency as
Rs.39,64,680/-. The Claims Tribunal awarded Rs.1 lakh towards loss
of love and affection, Rs.1 lakh towards loss of estate and Rs.25,000/-
towards funeral expenses. The total compensation was computed as
Rs.41,89,680/-. The Claims Tribunal held the deceased contributory
negligent to the extent of 30% and deducted 30% from the aforesaid
compensation to compute the net compensation as Rs.29,32,776/-.
4. The appellants have challenged the impugned award on the
ground that the deceased was not contributory negligent and,
therefore, the deduction on account of contributory negligence be set
aside.
5. The appellants examined the eye witness Arun Singh as PW-2,
who deposed that he was sitting on the pillion of the motorcycle being
driven by the deceased at the time of the accident and the army vehicle
was running ahead of the motorcycle in the middle of the road. The
deceased was in search of the space with a view to overtake the army
vehicle and got space on left side of the truck but in the meantime, the
truck took a left turn and hit the motorcycle from the front wheel of
co-driver side due to which the deceased came underneath the front
wheel of the vehicle.
6. The respondents examined Sunil Yadav, driver of the truck, as
RW-1, who deposed that he took left turn after giving left indicator
but the motorcycle driven by the deceased tried to overtake the
offending vehicle from the left side at a high speed through a narrow
gap between the footpath and the main road and while doing so, the
deceased collided his motorcycle with the left front wheel of the truck.
7. The Claims Tribunal held the deceased and the driver of the
truck to be contributory negligent to the extent of 30% and 70%
respectively on the ground that the deceased was overtaking the army
truck on a single road from the left side and the overtaking from the
left side was not permissible as per law.
8. The law with respect to the contributory negligence is well
settled. Contributory negligence connotes a failure of the victim to
take reasonable care for his own personal safety in the circumstances
prevailing at the time of the accident, such that he is blameworthy to
the extent that he contributed to his own injury. A person is guilty of
contributory negligence if he ought to have objectively foreseen that
his failure to act prudently could result in hurting himself and failed to
take reasonable measures to guard against that foreseeable harm.
Contributory negligence is a partial defence that reduces the quantum
of damages payable to plaintiff if he fails to safeguard his own
interest.
9. In Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi
Tak, (2002) 6 SCC 455, the Supreme Court defined the principle of
contributory negligence as under:-
"8......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."
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."
(Emphasis supplied)
10. In Municipal Corporation of Greater Bombay v. Laxman Iyer,
(2003) 8 SCC 731, the Supreme Court defined the contributory
negligence as an act or omission on the part of the plaintiff who
materially contributed to the damage. The relevant portion of the said
judgment is reproduced hereunder:-
"6.....Where an accident is due to negligence of both parties,
substantially there would be contributory negligence and both
would be blamed. In a case of 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. Whichever party could
have avoided the consequence of other's negligence would be
liable for the accident. If 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 Charlesworth on Negligence, 3 rd
Edn. Para 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."
(Emphasis supplied)
11. In Sudhir Kumar Rana v. Surinder Singh, (2008) 12 SCC 436,
the Supreme Court defined contributory negligence as under:-
"6....A contributory negligence may be defined as negligence in
not avoiding the consequences arising from the negligence of
some other person, when means and opportunity are afforded to
do so. The question of contributory negligence would arise only
when both parties are found to be negligent.
7.The question is, negligence for what? If the complainant must
be guilty of an act or omission which materially contributed to
the accident and resulted in injury and damage, the concept of
contributory negligence would apply. "
(Emphasis supplied)
12. In Pawan Kumar v. Harkishan Dass Mohan Lal, (2014) 3
SCC 590, the Supreme Court explained the principle of contributory
negligence as under:-
"8. Where the plaintiff/claimant himself is found to be a party to
the negligence the question of joint and several liability cannot arise
and the plaintiff's claim to the extent of his own negligence, as may be
quantified, will have to be severed. In such a situation the plaintiff can
only be held entitled to such part of damages/compensation that is not
attributable to his own negligence. The above principle has been
explained in T.O. Anthony [T.O. Anthony v. Karvarnan, (2008) 3 SCC
748 : (2008) 1 SCC (Civ) 832 : (2008) 2 SCC (Cri) 738] followed
in K. Hemlatha [A.P. SRTC v. K. Hemlatha, (2008) 6 SCC 767 :
(2008) 3 SCC (Cri) 34] .
9. Paras 6 and 7 of T.O. Anthony [T.O. Anthony v. Karvarnan,
(2008) 3 SCC 748 : (2008) 1 SCC (Civ) 832 : (2008) 2 SCC (Cri) 738]
which are relevant may be extracted hereinbelow: (SCC p. 751)
"6. „Composite negligence‟ refers to the negligence on the part
of two or more persons. Where a person is injured as a result of
negligence on the part of two or more wrongdoers, it is said that
the person was injured on account of the composite negligence of
those wrongdoers. In such a case, each wrongdoer 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. In such a case, the injured need not establish the
extent of responsibility of each wrongdoer separately, nor is it
necessary for the court to determine the extent of liability of each
wrongdoer separately. On the other hand 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 stand
reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident,
and one of the drivers claims compensation from the other driver
alleging negligence, and the other driver denies negligence or
claims that the injured claimant himself was negligent, then it
becomes necessary to consider whether the injured claimant was
negligent and if so, whether he was solely or partly responsible for
the accident and the extent of his responsibility, that is, his
contributory negligence. Therefore 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. The High Court has failed
to correct the said error."
(Emphasis supplied)
13. In Asnah bte Ab Rahman v. Li Jianlin, (2016) SGCA 16, the
Singapore Supreme Court defined the principle of contributory
negligence as under:-
"Contributory negligence connotes a failure by the claimant to
take reasonable care for his own personal safety in all the
circumstances prevailing at the time of the accident, such that
he is blameworthy to the extent that the contributed to his own
injury. A person is guilty of contributory negligence if he ought
to have objectively foreseen that his failure to act prudently
could result in hurting himself and failed to take reasonable
measures to guard against that foreseeable harm."
14. Applying the aforesaid principles of contributory negligence to
the present case, this Court is of the view that the deceased was
contributory negligent by overtaking the army truck on the left side on
a single road which has contributed to the accident. This Court agrees
with the Claims Tribunal that the deceased was contributory negligent
to the extent of 30%.
15. There is no merit in this appeal, which is hereby dismissed.
MARCH 8, 2017 J.R. MIDHA, J.
rsk
