Gauhati High Court
Dibyajyoti Moran @ Deepjyoti ... vs Manoj Kr Ladia And 4 Ors on 28 October, 2021
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GAHC010123412014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./77/2014
DIBYAJYOTI MORAN @ DEEPJYOTI MORAN
S/O SRI MOKINDRA NATH MORAN, BOTH ARE RESIDENTS OF
LANGKASHI SHIMOLUGURI GAON, P.S. BORDUBI, DIST. TINSUKIA,
ASSAM.
VERSUS
MANOJ KR LADIA and 4 ORS
S/O SRI MOHAN LAL LADIA, R/O J.B. COLLEGE ROAD, P.S. and DIST.
JORHAT, ASSAM, PIN DRIVER OF THE MARUTI CAR
2:BINOD KR. LADIA
S/O SRI MOHAN LAL LADIA
R/O J.B. COLLEGE ROAD
P.S. and DIST. JORHAT
ASSAM
PIN OWNER OF THE MARUTI CAR
3:THE MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
HAVING ITS DIVISIONAL OFFICE AT PLAZA COMPLEX 2ND FLOOR0
RANGAGORA ROAD
P.O.
P.S. and DIST. TINSUKIA
ASSAM
PIN INSURER OF THE MARUTI CAR
4:BISHNU MORAN
S/O SRI MOKINDRA NATH MORAN
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R/O LANGKASHI SHIMOLUGURI GAON
P.S. BORDUBI
DIST. TINSUKIA
ASSAM. OWNER OF THE MOTOR CYCLE
5:THE MANAGER
ORIENTAL INSURANCE CO. LTD.
THANA ROAD
TINSUKIA
P.O.
P.S. and DIST. TINSUKIA
ASSAM. INSURER OF THE MOTOR CYCL
Advocate for the Petitioner : MR. A K GUPTA
Advocate for the Respondent : MS. M SAIKIA
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT
Date : 28-10-2021
JUDGMENT & ORDER (ORAL)
Heard Mr. A.K. Gupta, the counsel appearing on behalf of the appellant as well as Mr.
R. Goswami, counsel appearing on behalf of the Respondent No.3 and Mr. S. Dutta, counsel
appearing on behalf of the Respondent No.5.
2. The instant appeal arises out of the award dated 11/06/2012, whereby, the Tribunal
below had awarded 50% of the compensation of an amount of Rs. 13,21,150/- (Rupees
thirteen lakhs twenty one thousand one hundred fifty) along with interest @ 6% per annum
from the date of filing of the claim petition. Being aggrieved by the quantum of compensation
and more particularly on the ground i.e. deduction of the compensation on account of
contributory negligence by 50% and for not calculating the loss of future prospects in
accordance with the principles laid down by the Constitution Bench of the Supreme Court in
the case of National Insurance Co. Ltd Vs. Pranay Sethi (2017) 16 SCC 680, the appellant has
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preferred the instant appeal before this Court.
3. Vide the impugned award, the Respondent No. 3 was saddled with the liability of
payment of 50% of the compensation of an amount of Rs. 13,21,150/- (Rupees thirteen lakh
twenty one thousand one hundred fifty) along with interest @ 6% per annum from the date
of the claim petition. The Insurance Company, however, have not challenged the adjudication
of the compensation. Under such circumstances, this Court is called upon to decide as to
whether the deduction by 50% of the compensation amount Rs 13,21,150/- (Rupees thirteen
lakh twenty one thousand one hundred fifty) on the ground of contributory negligence and
whether the loss of future prospects have been correctly calculated are the questions, which
needs to be adjudicated upon.
4. The plea of contributory negligence is not only required to be taken in its pleadings,
but also it has to be proved. There cannot be a presumption of contributory negligence on
the ground that two vehicles collided head-on, unless and until such plea is raised before the
Tribunal and proved as is required under the provisions of law.
5. I have perused the written statement filed by the respondent No.3 and surprisingly
there is no shred of any pleadings as regards contributory negligence. Though, it is a trite
principle of law that without pleadings, there cannot be any evidence led, then also upon
perusal of the evidence on record, it is seen that there is no shred of evidence even adduced
by the respondent No. 3 to prove contributory negligence. Under such circumstances, I am of
the opinion, that the reduction of the compensation amount by 50% on the ground of
contributory negligence in the impugned award is liable to be interfered with. In this regard,
it may be relevant to refer to a very recent judgment of the Supreme Court dated 06/10/2021
passed in the case of K. Anusha and Ors. Vs. Regional Manager, Shriram General Insurance
Co. Ltd., wherein at paragraph 11, 12 & 13 the Supreme Court, while approving the judgment
in the case of Astley Vs. Austrust Ltd. of the High Court of Australia, held that where, by the
negligence of one party another party in a situation of danger, compelling the other party to
act quickly in order to extricate himself, it does not amount to contributory negligence.
Paragraph 11, 12 and 13 of the said judgment is quoted here-in-below :-
"11. The first grievance of the appellants about the finding of contributory
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negligence is liable to be sustained for three reasons namely, (i) that even
according to the Tribunal and the High Court, the spot where the lorry was
parked, as indicated in Exhibits P-1 to P-6 (FIR, complaint, spot magazar
etc)and Exhibit P-22 (spot, sketch), was not a parking place; (ii) that according
to the High Court, the driver of the lorry ought to have parked the vehicle on
the left side of the road by giving proper indication/signal, but it was not done;
and (iii) that as per the finding of the High Court, the accident occurred at
about 4.30 A.M. when the lighting should have been poor.
12. The view expressed by the High Court to effect that if the driver of the car
had been vigilant and driving the vehicle carefully following the traffic rules, the
accident would not have happened, is presumptuous and not based on any
evidence. There was nothing on record to indicate that the driver of the car was
not driving at moderate speed nor that he did not follow traffic rules. On the
contrary, the High Court holds that if the lorry had not been parked on the
highway, the accident would not have happened even if the car was driven at a
high speed.
13. Therefore, the entire reasoning of the High Court on Issue No. 1 is riddled
with inherent contradictions. To establish contributory negligence, some act of
omission, which materially contributed to the accident or the damage, should be
attributed to the person against whom it is alleged. In Pramodkumar Rasikbhai
Jhaveri Vs. Karmasey Kunvargi and Others, this Court quoted a decision of the
High Court of Australis V. Austrust Ltd. to hold that "....where, by his negligence,
one party places another in a situation of danger, which compels that other to
act quickly in order to extricate himself, it does not amount to contributory
negligence, if that other acts in a way which, with the benefit of hindsight is
shown not to have been the best way out of the difficulty". In fact, the
statement of law in Swadling V. Cooper, that ".......... the mere failure to avoid
the collision by taking some extraordinary precaution, does not in itself
constitute negligence..." was also quoted with approval by this Court. Therefore,
we are compelled to reverse the finding of the Tribunal and the High Court on
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the question of contributory negligence."
6. A perusal of the evidence of Shri Anjan Saikia (CW-2) and the evidence of Raj Ratnam
Gogoi (CW-3), who were the eye witnesses to the accident, they stated on oath that the
Maruti Car registration No. As-03-G-7556, which was coming from the opposite direction,
suddenly tried to overtake another vehicle and come to the wrong side of the road and
directly dashed against the motorcycle in which the claimant suffered injury along with Bidyut
Vikash Moran. The evidence goes to show that the claimant suffered grievous injuries,
whereas, Sri Bidyut Vikash Moran, who was the pillion rider, had succumbed to his injuries. In
the cross-examination, the evidence given by the witness No. 2 and 3 could not be dislodge.
7. Under the above circumstances, the question of contributory negligence does not arise
in the facts of the instant case and accordingly the claimant is entitled to the hundred percent
of the compensation amount.
8. As regards the loss of future prospects it has been submitted by the learned counsel
for the appellant that an amount of Rs. 2,00,000/- had been awarded, which ought to have
been Rs.2,75,400/- (Rupees two lakh seventy five thousand four hundred), as the said
amount would be 40% of the amount of Rs.6,88,500/- (Rupees six lakh eighty eight thousand
five hundred), as held by the Constitution Bench of the Supreme Court in the case of Pranay
Sethi and Ors.(Supra). I have looked into the said calculation and I find that the 40% of the
amount of Rs.6,88,500/- (Rupees six lakh eighty eight thousand five hundred) would be
Rs.2,75,400/- (Rupees two lakh seventy five thousand four hundred).
9. In view of the above, the compensation, which the claimant is entitled to, would be -
(i) Re-imbursement of medical expenses--- Rs.2,82,641.41/-
(ii) Total loss of income --- (Rs. 4,500/- X 12 X .75)
= Rs.6,88,500/-
(iii) Loss of future prospects -- Rs.2,75,400/-
(iv) Pain and suffering -- Rs.1,00,000/-
(iv) Mis-Expenses -- Rs. 50,000/-
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Total -- Rs. 13,96,541.41/-
10. Therefore, in the result, the instant appeal is allowed and the award dated 11/06/2012
passed in MACT Case No. 60/2010 is modified granting to the appellant a total compensation
of Rs. 13,96,541.41/- (Rupees thirteen lakh ninety six thousand five hundred forty one and
forty one paise). The same shall be payable with interest @ 6% per annum from the date of
the claim petition. The amount already deposited by the respondent No. 3/Company shall be
adjusted against the above amount.
11. The respondent No. 3/Company is directed to deposit the remaining part of the
compensation after making the adjustment of the payment so made, within a period of 6(six)
weeks from today, before the Tribunal.
12. With the above observation, the instant appeal is disposed off. The Registry is directed
to send back the records.
JUDGE
Comparing Assistant
