Delhi High Court
Vandna Kumari vs Ramesh & Anr ( The New India ... on 3 July, 2018
$~11 to 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 03rd July, 2018
+ MAC.APP. 276/2018
11 VANDNA KUMARI ..... Appellant
Through: Mr. Jatinder Kamra, Adv.
versus
RAMESH & ANR
( THE NEW INDIA ASSURANCE CO LTD) ..... Respondents
Through: Mr. Maibam N. Singh, Adv. for R-2.
+ MAC.APP. 277/2018
12 KAMLA DEVI ..... Appellant
Through: Mr. Jatinder Kamra, Adv.
versus
RAMESH & ANR
(THE NEW INDIA ASSURANCE CO.LTD.) ..... Respondents
Through: Mr. Maibam N. Singh, Adv. for R-2.
+ MAC.APP. 278/2018
13 JYOTI KUMARI THROUH ITS NATURAL
GUARDIAN JASWANT SINGH ..... Appellant
Through: Mr. Jatinder Kamra, Adv.
versus
RAMESH & ANR
(NEW INDIA ASSURANCE CO LTD) ..... Respondents
Through: Mr. Maibam N. Singh, Adv. for R-2.
+ MAC.APP. 306/2018 & CM APPL. 11508/2018
14 NARENDER SINGH & ORS ..... Appellants
Through: Mr. Jatinder Kamra, Adv.
MAC. APP. Nos.276/2018, 277/2018, 278/2018, 306/2018, 307/2018 Page 1 of 14
versus
RAMESH & ANR
( THE NEW INDIA ASSURANCE CO LTD ) ..... Respondents
Through: Mr. Maibam N. Singh, Adv. for R-2.
+ MAC.APP. 307/2018 & CM APPL. 11512/2018
15 NARENDER SINGH ..... Appellant
Through: Mr. Jatinder Kamra, Adv.
versus
RAMESH & ANR
(THE NEW INDIA ASSURANCE CO LTD ) ..... Respondents
Through: Mr. Maibam N. Singh, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
]
J U D G M E N T (ORAL)
1. The appellants have challenged the awards dated 17th February, 2018
whereby the Claims Tribunal dismissed their claim petitions for
compensation on the ground that they have failed to prove the rashness and
negligence of respondent no.1.
2. On 22nd February, 2017, five persons, namely, Narender Singh, his
wife - Neena Singh, his mother - Kamla Devi, his daughter - Vandna
Kumari and his niece - Jyoti Kumari were travelling in a car bearing No.
DL-3CAG-3734 while coming from Himachal Pradesh to Delhi. The car
was being driven by Narender Singh. At about 21:00 hours on 22 nd
February, 2017, the car was on the national highway near P.S. Shahabad,
Kurukshetra, when a truck bearing registration No.HR-63-8954 moving
ahead of the car suddenly stopped and the car hit the rear portion of the truck
which resulted in death of Neena and grievous injuries to Narender Singh,
Kamla Devi, Vandna Kumari and Jyoti Kumari.
3. The police registered FIR No.0090 dated 23rd February, 2017 at P.S.
Shahabad, Kurukshetra under Sections 279/337/338/304A IPC against driver
of the truck No.HR-63-8954, Ramesh Kumar.
4. On 16th April, 2017, the police filed the chargesheet under Section
173 Cr.P.C. against Ramesh Kumar under Sections 279/337/338/304A IPC.
The appellants placed on record the certified copies of the FIR, chargesheet,
site plan and mechanical inspection report of both the vehicles before the
Claims Tribunal.
5. On 30th May, 2017, Sub-Divisional Judicial Magistrate, Shahabad
framed charges against Ramesh Kumar under Sections 279/337/338/304A
IPC.
6. Five claim petitions were filed before the Claims Tribunal, one
relating to the death of Neena and four claim petitions relating to grievous
injuries suffered by Narender Singh, Jyoti Kumari, Vandana Kumari and
Kamla Devi.
7. Respondent no.1, Ramesh Kumar, driver-cum-registered owner of the
truck filed the written statement claiming that Narender Singh was driving
the car at a very high speed and hit the stationary truck from behind in an
attempt to overtake the truck from the wrong side.
8. Narender Singh appeared in the witness box as PW-1 and deposed
that on 22nd February, 2017, he was driving car bearing No. DL-3CAG-3734
in which Neena, Kamla, Vandana and Jyoti Kumari were travelling; at about
21:00 hrs, on reaching P.S. Shahabad, Kurukshetra on national highway, all
of a sudden and without any cause or cogent reason, truck bearing
registration No. HR-63-8954 moving ahead of the car stopped itself in
middle of road without any signal or indicator on flyover. In the cross-
examination, PW-1 admitted that he applied the brake when the truck
stopped suddenly but the car could not stop and it hit the truck from behind.
He denied the suggestion that the truck was parked on the left side of the
road due to breakdown. Ramesh Kumar, driver of the truck, did not appear
in the witness box to rebut the evidence led by the appellants.
9. Respondent no.2, New India Assurance Company Ltd. did not lead
any evidence to rebut the evidence led by the claimants.
10. The Claims Tribunal held that the appellants have failed to prove the
rash and negligent driving of respondent no.1. The relevant portion of the
award in MAC.APP.276/2018 is reproduced hereunder:
".........I have considered the submissions alongwith the
records. In the claim petition itself, it is noted that the truck
bearing No. HR 63 8954 was moving ahead of the car of the
petitioner stopped without any indicator and the car struck
against the rear portion of the truck leading to injury/ death of
the passengers. Sh. Narender Singh i.e. father of injured who
was driving the car bearing No. DL 3 CAG 3734 hit the truck in
back side; the truck applied the brake and he was coming
behind the truck also applied the brake but struck behind the
truck and caused the accident. It is noted that the MLC relied
by the petitioner Ex PW 2/ 2 does not disclose the nature of the
injury at all. The PW1 i.e. Narender Singh during cross
examination admitted that car was being driven by him which
hit the truck in back side as the truck has applied the brake
suddenly and he was driving behind the truck. Even the medical
records/ medical bills relied by petitioner in support of claim
and contentions are not proved in accordance with provisions
of law after taking necessary steps to summons the witnesses.
11. It is argued by ld. Counsel for respondents that, even if the
testimony of the PWs is considered alongwith other materials
on record and FIR, no negligence of the respondent No. 1 is
proved on record and therefore, respondents are not liable to
make any payment. I have considered the submissions and gone
through the judgments reported as 2009 ACJ 2719 titled
Prasanna Vs. Kerala State Road Transport Corporation; and
Lacchu Ram & Others Vs. Himachal Road Transport
Corporation (Manu/SC/0059/2014) in support of their
contentions. The contentions of the respondents appears to be
true. The petition, FIR shows that the truck was going ahead of
the car, truck applied the brake and the car coming from
behind hit the truck leading to accident. The ratio of the
aforesaid judgment relied upon by the respondents regarding
negligence of the respondent No. 1 is squarely applicable in the
facts of this case.
12. It is established that the standard of proof of negligence in a
criminal case and in claim petition U/s 166 of M.V. act are
different. From the material on record and from the testimony
of the witnesses, it is proved that the respondent No. 1 is not
responsible for rash and negligent driving. In view of the ratio
laid in Prassana's case (Supra), the vehicle following another
vehicle should take into account the eventuality of the vehicle
going in front stopping abruptly. This Tribunal does not find
any contention regarding grant of recovery rights to insurance
company, if any as argued by the petitioner as the liability of
the respondent has to be established first for right for recovery,
if any.
13. In the case in hand, there is nothing on record to show the
negligence of respondent No. 1. In fact the petitioner failed to
prove any accident causing injury/death due to the rash and
negligent driving of respondent No. 1. Therefore, in view of the
material on records and testimony of witnesses, this tribunal is
of the considered view that the petitioner has failed to prove
that she received injuries in motor accident caused by rash and
negligent driving of vehicle No. HR 63 8954 at Kurukshetra on
National Highway road going towards Delhi to Himachal on
22.02.2017 at about 9:00 PM by respondent No.1. The issue
No. 1 is decided accordingly against the petitioner."
11. Learned counsel for the appellants urged the following submissions at
the time of the hearing:
(i) The claimants have duly proved the negligence of the truck by
examining the driver of the car as well as the occupants of the car who
were eye-witness to the accident.
(ii) The appellants placed on record the certified copies of the documents,
namely, FIR, chargesheet, site plan, mechanical inspection report of
both the vehicles.
(iii) Respondent no.1 did not appear in the witness box to rebut the
evidence led by the appellants.
(iv) Respondent no.2 did not to rebut the evidence of the appellants.
(v) That the findings of the Claims Tribunal holding that there was no
negligence on the part of the driver of the truck is not based on any
evidence.
(vi) Adverse inference ought to have been drawn against respondent no.1
for failing to appear in the witness box under Section 114(1)(g) of the
Evidence Act.
12. This Court is of the prima facie view that this is a case of contributory
negligence in respect of the claim made by Narender Singh who was driving
the car and the Claims Tribunal was required to determine the extent of
contributory negligence. Reference be made to the following judgments of
this Court:-
12.1. In United India Insurance Co. Ltd. v. Mahima Singh, 2018 SCC
OnLine Del 7269, an accident took place between a car and a gas tanker.
The gas tanker going ahead of the car, applied sudden breaks due to which
the car collided with the tanker from behind resulting in death of the driver
of the car and an occupant. A claim petition was filed by the legal
representatives of the deceased driver of car claiming compensation. This
Court held that it is the duty of the driver to maintain a safe distance from
the vehicle moving ahead of him and if the driver of the vehicle, who hits
the vehicle going ahead of him upon sudden stopping, would be contributory
negligent for not maintaining a safe distance from the vehicle moving ahead
of him. The relevant portion of the said judgement is reproduced herein
below:
"8............this Court is of the view that the offending vehicle was
negligent as it stopped abruptly without any warning or signal or
any valid reason but it was also the duty of the deceased to
maintain a safe distance from the vehicle moving ahead of him.
This Court is of the view that the deceased did not maintain a safe
distance between the Gas Tanker and himself and was partly
responsible for causing the accident as the deceased failed to
maintain a safe distance from the gas tanker going ahead. If the
deceased had kept safe distance from the gas tanker and would
have exercised due care and caution, the accident could have been
avoided. Rule 23 of Rules of the Road Regulations, 1989
specifically stipulates that it is the duty on the driver of a motor
vehicle moving behind another vehicle to maintain sufficient
distance from that other vehicle to avoid collision in case the
vehicle in front suddenly slows down or stops. Rule 23 of Rules of
the Road Regulations, 1989 is reproduced as under:-
"Rule 23. Distance from vehicles in front.--The
driver of a motor vehicle moving behind another vehicle
shall keep at a sufficient distance from that other vehicle to
avoid collision if the vehicle in front should suddenly slow
down or stop."
9. In Shrimanti v. Krishna Deva Madiwal, 2005 ACJ 350, the
Full Bench of Karnataka High Court considered whether the
defense of contributory negligence should be pleaded and whether
any evidence needs to be led to establish the contributory
negligence on the part of insured/deceased. The Full Bench held
that it is not necessary for the Insurance Company to raise a
specific plea of contributory negligence, provided it has denied the
negligence on the part of the offending vehicle, and has claimed
that the negligence is squarely of that of the deceased. The Full
Bench observed as under:
"It is trite that an argument based on contributory
negligence has to be substantiated by the party who
advances that argument, but it is equally true that for
discharging that burden, the party concerned need not lead
evidence. As observed by the Division Bench of this court
in Sharada Bai v. Karnataka State Road Transport
Corporation, 1988 ACJ 490 (Karnataka), contributory
negligence can be-and very often is inferred from the
evidence adduced on the claimants' behalf or from the
perceptive facts either admitted or found established, on a
balance of probabilities in the case. The absence of a
specific plea may not therefore be conclusive of the matter
nor can the argument that the deceased motorcyclist had
contributed to the occurrence of the accident be rejected
summarily only because a specific plea in that regard, was
not raised in the objections."
10. Thus, it is not necessary that evidence has to be led by the
Insurance Company in order to establish contributory negligence,
provided that the perceptive facts are either admitted or found
established from the evidence adduced by the claimants, and on
the basis of probabilities a reasonable inference can be drawn that
the deceased was responsible for the accident. In the present case,
this Court is of the view that deceased was contributory negligent
and no evidence was necessary in view of the admitted position in
the FIR as well as claim petition that the tanker ahead of the
deceased‟s car suddenly stopped but the deceased could not stop
his vehicle. The judgments cited by the appellants are in the facts
of those cases. So far as the contributory negligence is concerned,
this Court has consistently held that the driver of the vehicle who
hits the vehicle going ahead of him upon sudden stopping, would
be contributory negligent. Reference be made to Bharti Axa Gen
Ins Co. Ltd. v. Fareeda, 2017 SCC OnLine Del 12600."
(Emphasis Supplied)
12.2. In Rajni v. Union of India, 2017 ACJ 2837, this Court discussed the
principles relating to contributory negligence. The relevant portion of the
said judgement is reproduced herein below:
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, 3rd 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%."
(Emphasis Supplied)
13. So far as four occupants of the car are concerned, their case is of
composite negligence and the claimants can claim compensation from any of
the tortfeasors. In that view of the matter, the dismissal of the claim petitions
by the Claims Tribunal is not justified.
14. The appeals are allowed, impugned awards are set aside and the cases
are remanded back to the Claims Tribunal for fresh adjudication. The Claims
Tribunal shall determine the extent of contributory negligence of Narender
Singh and the compensation determined by the Claims Tribunal shall be
reduced to the extent of contributory negligence of the Narender Singh. With
respect to the remaining four cases, the claimants are entitled to the
compensation against respondent No.2 and the Claims Tribunal shall
adjudicate the amount of the compensation to which they are entitled in
accordance with the law.
15. Pending applications are disposed of.
16. The parties shall appear before the Claims Tribunal on 09 th August,
2018.
17. Learned counsels for the appellant and respondent No.2 have noted
down the date of hearing and they undertake to appear before the Claims
Tribunal. There is no appearance on behalf of the respondent No.1. The
Claims Tribunal shall issue fresh notice to respondent No.1 before hearing
the matter.
18. The record of the Claims Tribunal be sent back forthwith.
19. Copy of this judgement be given dasti to learned counsels for the
parties under signature of Court Master.
J.R. MIDHA
JULY 03, 2018 (JUDGE)
dk/ak
