Gujarat High Court
Isufbhai Jumabhai Saandh (Sandhi) vs Devendrabhai Ranvirsingh Vaghela on 7 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3582 of 2022
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ISUFBHAI JUMABHAI SAANDH (SANDHI)
Versus
DEVENDRABHAI RANVIRSINGH VAGHELA & ORS.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 3
UNSERVED EXPIRED (N) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - original
claimant being aggrieved and dissatisfied with the judgment and
award dated 05.03.2019 passed by the Motor Accident Claims
Tribunal, Rajkot in Motor Accident Claim Petition No.473 of
2009, whereby, learned Tribunal has attributed contributory
negligence of claimant to 90%.
2. Flying at impugned judgment and award, learned advocate
Mr.Hemal Shah for the appellant having fairly accepted that
claimant was also negligent in causing road accident, submitted
that learned Tribunal has assessed contributory negligence of
claimant to 90%, by all means, is excessive on all count. He
would further submit that though Insurance Company pleaded
in the written statement that tyre of the truck was got
punctured, it could not establish by leading necessary evidence.
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Learned advocate Mr.Shah would submit that since claimant
suffered injury because motorcycle rammed into stationary
truck, became unconscious and hence FIR was lodged by truck
driver who has kept truck stationary against claimant but that
could not be considered as sole criteria to decide contributory
negligence of party involved in road accident. Learned advocate
Mr.Hemal Shah, thus, argued that finding and conclusion of
learned Tribunal attributing 90% contributory negligence to
claimant is without evidence and as such is an erroneous
finding.
2.1. On above submissions, he submits that to rationalize
contributory negligence made by the learned Tribunal.
3. Per contra, learned advocate Ms.Kirti Pathak for Insurance
Company while dwelling on FIR and panchnama as also cross
examination of claimant, referred to judgment of Hon'ble Apex
Court in the case of Pandurang Jivaji Apte v/s. Ramchandra
Gangadhar Ashtekar [(1981) 4 SCC 569], would submit that
when there is sufficient evidence available on record, the issue of
not entering into witness box by driver, would not draw adverse
inference. She would submit that Insurance Company since
beginning pleaded that tyre of errant vehicle got punctured and
due to the mechanical fault, the truck was kept stationary on the
extreme left side of the road. She would submit that had
accident took place at night, it could be understand that
claimant being motorcyclist could not see truck and rammed
into stationary truck, but it is case where accident took place in
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day light and claimant dashed and rammed into stationary truck
from behind. She referred to cross examination of the claimant
to submit that claimant has admitted that he could not see
stationary truck and rammed into truck from behind. It is also
submitted that claimant has admitted that truck has not applied
sudden brakes resulting into road accident. Referring to
panchnama, learned advocate Ms.Pathak would submit that
panchnama which is relied by claimant proves that truck was
stationed on the extreme left side of road. She referred to
judgment of Hon'ble Apex Court in the case of Oriental
Insurance Company Ltd. v/s. Premlata Shukla [2007 ACJ (SC)
1928] to submit that since claimant has relied on documentary
evidence, he cannot turn blind and cannot selectively read
panchnama being documentary evidence to say that they are
insufficient to prove contributory negligence.
3.1. Mainly on above submission, it is submitted that there is
no merit in the appeal and therefore, appeal may be dismissed.
4. Having heard learned advocates for the parties and
perusing evidence on record, what could be noticeable that
though process of claim petition is served to driver, owner and
insurance company, only insurance company chose to contest
the claim petition. Driver who is maker of first information did
not choose to contest claim petition and defend allegations
levelled in the pleadings made by the claimant. Insurance
Company in written statement came out with case that because
tyre of truck got punctured, it was kept stationed on extreme left
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side of road. To prove this contention, learned advocate
Ms.Pathak heavily relied on FIR and Panchnama to contend that
tyre of truck got punctured, is the reason to keep the vehicle
stationary, and such reason for keeping truck is properly
explained. Albeit fact of tyre of the truck got punctured or not is
personal knowledge of driver of vehicle, needed to prove by
leading oral evidence of driver. Relying on FIR and panchnama,
personal knowledge of the driver cannot be proved. To be noted
that FIR and panchnama relied by claimant can be looked into
evidence and relied by insurance company to extent of causing
road accident. So far as contributory negligence is concerned,
evidence recorded before the learned Tribunal or Court plays
higher value (see National Insurance Company Ltd. v/s.
Chamundeswari and Ors. [2021 ACJ 2558 - para 8].
5. The claimant entered into witness box at Exh.44. In chief
examination, he has stated on oath that he was driving his
motorcycle on the left side of the road at slow speed. He has also
admitted on oath that truck was kept stationary on the left side
of the road without any blinkers. He has explained that why FIR
and charge-sheet is filed against him. Learned advocate
Ms.Pathak relied on cross examination of the witness to say that
learned Tribunal has rightly attributed 90% contributory
negligence to the claimant. In cross-examination, the claimant
has admitted that accident took place around 4.00 to 4.30 noon.
He has also admitted that FIR and charge-sheet of the road
accident is filed against him. He has also admitted that in the
claim petition, he has pleaded that he rammed into truck from
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behind. He has also admitted that it had not happened that
truck has suddenly applied brakes and he dashed truck from
behind. He has also admitted that he could not see truck and
dashed with truck. Apart from this, there is no cross-
examination by the insurance company on the issue of
negligence. Insurance company who is needed to prove that
truck was stationary on the left side of the road due to puncture
in tyre, did not put question to the claimant who is eye witness
to the road accident. Insurance Company did not asked question
in cross-examination that truck was kept in stationary because
it got punctured.
6. Perusal of section 122 & 126 of MV Act read with Rule 15
of the Road Regulation, 1989, it prohibits to keep any vehicle in
stationary on public place without any reasons or mechanical
fault. In the present case, Insurance Company mainly dwell
upon FIR and panchnama to prove contributory negligence of
the claimant to the extent of 90%. Admittedly truck was kept
stationary in contravention of section 122 & 126 of MV Act as
well as Rule 15 of the Road Regulation. Insurance Company was
expected to explain that why truck was kept stationary,
miserably failed to prove that truck was stationary because of
mechanical fault or due to tyre was punctured. I fail to
understand the argument of learned advocate Ms.Pathak that
FIR and panchnama should be read to establish that tyre was
got punctured. Keeping truck stationary on the ground of it's
tyre got punctured is point in dispute, and can be decided on
leading proper evidence. Whether Insurance company can rely
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on FIR and panchnama to prove this factum, without leading
evidence of truck driver ? Answer is "No". Truck driver was
bestowed with statutory duty to enter into witness box and to
explain why he has kept truck stationary. But there is no
evidence of truck driver on record. Submission is made by
learned advocate Ms.Pathak that adverse inference cannot be
drawn against driver because driver did not enter into witness
box. However, such submission cannot be accepted. In the case
of Vimla Devi Versus National Insurance Company Limited [2019
(2) SCC 186], the Hon'ble Apex Court in para 30 has held as
under :-
"30. Fourth, so far as the driver and owner of the Truck
were concerned, both remained ex parte since inception
and, therefore, neither contested the appellants' claim
petition nor entered into the witness box to rebut the
allegations of the appellants made in the claim petition and
the evidence. An adverse inference against both could be
drawn."
7. Learned advocate Ms.Pathak to sustain contributory
negligence assessed by learned Tribunal to the extent of 90%,
mainly referred to cross-examination of claimant and
panchnama on record. The question arise whether admission
made by the claimant can be treated as sufficient evidence
proving contributory negligent or could be held as issue that
claimant has not taken due care. Issue also arise whether driver
of the truck can be fasten liability of only 10% who did not
challenge pleadings of the claimant and did not enter into
witness box to unfurl facts of keeping vehicle stationary on the
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road.
8. Contributory negligence can be defined as the omission to
do something that a reasonable man would do or doing
something that a prudent or reasonable man would not do.
Contributory negligence refers to the failure of the plaintiff to
exercise reasonable care for their safety, which contributes to
their injury or damages. Contributory negligence operates on the
principle that individuals have a duty to exercise reasonable care
for their own safety and well-being. When someone fails to meet
this duty and their actions or omissions contribute to their own
injury or damages, they may be considered partially at fault for
the harm suffered.
9. Elements of contributory negligence viz. (i) Individual owes
duty of care to exercise reasonable caution and prudence of own
safety. This duty extends to action taken or omitted in
circumstances where harm is foreseeable. (ii) Contributory
negligence arises when the plaintiff breaches duty of care by
failing to exercise the level of caution expected of a reasonable
persons in similar circumstances. This breach may involve
action that directly contribute to the harm suffered or failure to
take reasonable precautions to prevent harm. (iii) The plaintiffs
breach of duty must be a proximate cause of their own injury or
damages.
10. "Last Opportunity rule" is rule in law of tort that applies in
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cases involving negligence, particularly, in the context of
accidents or injuries where multiple parties may have
contributed to the harm suffered by plaintiff. This rule address
situation where the defendant had the final opportunity to
prevent the harm, even if others were also negligent. It
essentially places greater responsibility on the party who had the
last chance to avoid the accident. The last opportunity rule is
most commonly applied in negligence cases, where the plaintiff
alleges that the defendant had the final chance to prevent the
harm but failed to do so. Under this rule, the defendant is held
accountable if they had the last clear opportunity to prevent the
accident or injury, even if others, including the plaintiff, were
also negligent to some extent. The 'last opportunity rule' imposes
greater responsibility on the defendant because they had the
final chance to avert the harm. This principle aligns with
overreaching goal of tort law to allocate liability based on fault
and prevent accident when reasonable precaution could have
been taken.
11. Under the Apportionment Legislation i.e. legislation
provided for apportionment of damages for contributory
negligence, the Court has very wide discretion to shift and weigh
standard of care required to be taken by plaintiff and defendant
or wrong doer. The Court essentially is exercised by comparing
the degree of culpability of the defendant with that of the
plaintiff. Regard is had to the degree to which each departed
from the requisite standard of care and to the releative causative
importance of the conduct of each.
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12. In the case on hand, as discussed herein-above, issue of
contributory negligence runs in two factor that claimant could
not see truck which was stationary on the road, as against this,
driver of truck did not come forward to satisfy Tribunal about
parking of truck on the road.
13. With profit, I may refer to judgment of Hon'ble Apex Court
in the case of K.Anusha Versus Regional Manager, Shriram
General Ins.Co.Ltd. [2021 (3) ApexCJ(SC) 761]. Relevant para
11,12 and 13 reads as under :-
"11. The first grievance of the appellants about the finding
of contributory 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 Exhs. P1 to P6 (F.I.R., complaint, spot
mahazar, etc.) and Exh. P22 (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 light
may have been poor.
12. The view expressed by the High Court to the effect that
if the driver of the car had been vigilant and driven 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 held 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.
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13. Therefore, the entire reasoning of the High Court on
issue No. 1 is riddled with inherent contradictions. To
establish contributory negligence, some act or 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 v.
Karmasey Kunvargi Tak, 2002 ACJ 1720 (SC), this court
quoted a decision of the High Court of Australia in Astley v.
Austrust Ltd., (1999) 73 ALJR 403, 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, (1931) AC 1, 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
the question of contributory negligence."
14. Evidence on record, on its interpretation and appreciation
would indicate that claimant is also negligent in causing road
accident but not to the extent of 90%. Learned Tribunal while
attributing 90% negligence to the claimant perhaps has been
prompted by few line admitted by the claimant in cross-
examination and also certain statement made in the FIR and
panchanama and also because accident took place in day light.
All these aspects can be appreciated that claimant probably had
not taken due or extra care to avoid accident, but real question
is that whether or not taking extra or due care by claimant could
be treated as contributory negligence and that too, up to 90%.
Apt to note that while drawing such contributory negligence,
learned Tribunal has also failed to notice section 122 & 126 of
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MV Act as well as Rule 15 of the Road Regulations as also fact
that driver did not entered into witness box to prove that truck
tyre got punctured and for that reason, it was kept stationary.
15. On the aforesaid grounds, according to this Court, issue of
contributory negligence assessed by learned Tribunal is required
to be re-scanned, re-looked and re-analysised by keeping all the
aspects abreast. Thus, it is fit case to remand the matter to the
learned Tribunal.
16. In wake of above reasons, the appeal is allowed. Impugned
judgment is quashed and set aside. MACP No.473 of 2009 is
remanded back to the learned Tribunal concerned for fresh
consideration on the ground of contributory negligence. Both
the parties are directed to remain present before the learned
Tribunal concerned on 28.01.2025. Registry to ensure that
Record and Proceedings reaches learned Tribunal concerned
before 28.01.2025.
(J. C. DOSHI,J)
SATISH
