“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1088 OF 2009 (Arising out of SLP (C) No. 16647 of 2008)

Usha Rajkhowa & Ors.    …. Appellants

Versus

Paramount Industries & Ors. …. Respondents

J U D G M E N T

V.S. SIRPURKAR,J.

1. Leave granted.

2. The appellants herein challenges the judgment passed by the High

Court,  confirming  the  judgment  of  the  Motor  Accidents  Claim  Tribunal

(hereinafter referred to as ‘the Tribunal’ for short), whereby, the Tribunal

limited the appellants’ entitlement to 50% of assessed claim amount and

granted  compensation  of  Rs.6,56,300/-  on  the  ground  that  there  was

contributory negligence on the part of the driver of the Car, who lost his life

in accident.   He was the husband of  appellant  No.  1 and the father  of

appellant  No.  2.   The  Car  was  insured  by  respondent  No.  3  Oriental

Insurance Company Ltd.

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3.  One  Jadhav  Rajkhowa  died  in  a  motor  vehicle  accident  on

5.12.1998 at about 7 pm, when he had gone to Dergaon market from his

house at Dadhara in his Maruti Car bearing Registration No. WB/12/6287.

On  the  way  of  Dergaon,  one  truck  bearing  Registration  No.  NLA-241,

coming from Jorhat side towards Bokakhat in a rash and negligent manner,

hit  the  Maruti  Car  causing  the  instant  death  of  said  Jadhav Rajkhowa.

Therefore,  the  claim petition was filed  by  his  legal  representatives (the

appellants herein).  The Car was insured with Oriental Insurance Company

Ltd.,  while  the  offending  truck  belonged  to  M/s.  Paramount  Industries,

Jorhat  (respondent  No.  1  herein),  which  was insured  with  United  India

Insurance Company Ltd., Golaghat Branch (respondent No. 2 herein).

4. The Oriental  Insurance Company Ltd.  in  defence,  contended that

Maruti Car was under the valid insurance coverage with it and it was an Act

Policy  and  the  owner  Jadhav  Rajkhowa  had  paid  Rs.373/-  by  way  of

premium covering the third party risk and that he had paid no additional

premium covering his own life risk, even though there was provision under

separate  insurance  policy  nor  had  he  paid  any  additional  premium for

driver and occupants.  It was claimed by the Oriental Insurance Company

Ltd. that the owner, driver and occupants were never treated as third party

and since it was an Act Policy, the claimant would not be entitled to claim

any compensation from them.  The owner of the truck had submitted that

its truck was under the valid insurance policy with United India Insurance

Company  Ltd.  and,  therefore,  the  owner  was  not  liable  to  pay  any

compensation and compensation, if any, had to be paid by the Insurance

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Company.  The United India Insurance Company Ltd., however, submitted

that the accident had taken place due to rash and negligent driving on the

part of the driver of the Maruti Car and the valid insurance was in favour of

the truck, as had been admitted.

5. In support of the claim, appellant/claimant Usha Rajkhowa appeared

as PW-1 and stated that her husband was the driver of the Maruti Car at

the time of its accident and he was an employee of Oil India Ltd.  She

further stated that her husband was 30 years old at the time of accident

and he had two children at that time.  She claimed the monthly pay of her

husband to be Rs.10,536/-.  PW-2 Sarbeswar Bora was an employee of Oil

India Ltd.  He stated that deceased Jadhav Rajkhowa was Safety Inspector

at  the  time  of  accident.   The  other  witness  examined  was  Madhuriya

Rajkhowa PW-3, who stated that he was travelling along with one Dhiren

Hazarika  in  Maruti  Car  and that  the  offending  truck  No.  NLA-241  was

coming from the opposite direction in high speed and hit the car.  It was

claimed  by  the  witness  that  both  Dhiren  Hazarika,  as  also  Jadhav

Rajkhowa had died on the spot, while he escaped the death with certain

grievous injuries.  In his Cross Examination, PW-3 stated that:-

“As to which vehicle was at fault I can’t say clearly.  It is not a fact that accident took place because of fault of Maruti Car.”

He further stated:-

“Maruti Car was going on its own side.  Truck hit the Maruti Car.”  

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On the basis of this evidence, the Tribunal, firstly returned a finding

that  the  Oriental  Insurance  Company  Ltd.  was  not  liable  to  pay  any

compensation, since the policy covering the owner of the Maruti Car, was

not  a  comprehensive  policy,  but  only  an  Act  Policy.   Insofar  as  the

assessment of compensation is concerned on the basis of monthly salary

and  applying  the  multiplier  formula,  the  amount  was  assessed  at

Rs.13,05,600/-.  Adding the funeral expenditure of Rs.2,000/- and loss of

consortium of Rs.5,000/-, the total amount was arrived at Rs.13,12,600/-.

The Tribunal then came to the finding that this amount was payable by

United India Insurance Company Ltd., which was the insurer of the truck

No. NLA-241 to the extent of 50% only, while the balance amount is to be

borne by the owner himself.  The Tribunal, ultimately held that the claimant

would  be  entitled  to  compensation  of  Rs.6,56,300/-  from  United  India

Insurance Company Ltd. with the accrued interest @ 9% p.a. from the date

of filing of the claim petition.

6. This  award of  the Tribunal  was appealed against  by the  present

appellants  under Section 173 of  the Motor  Vehicles  Act,  1988.   It  was

asserted in the appeal that the Tribunal in its award should not have limited

the liability to 50% by apportioning between both the involved vehicles, as

there were no pleadings or evidence in support of such apportionment.  It

was specifically stated in the appeal memo that the Tribunal itself had not

held any contributory negligence on the part of Maruti Car nor had it given

any  finding  and thus,  the  claim could  not  have been reduced to  50%,

applying  the  theory  of  contributory  negligence.   The  High  Court  firstly

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endorsed the finding of the Tribunal that Oriental Insurance Company Ltd.

was not liable to pay any compensation, since the policy was an Act Policy.

The High Court then went into the exercise of appreciation of evidence and

observed that the Tribunal had held that the accident took place due to

contributory  negligence  of  the  drivers  of  the  truck  and the  Maruti  Car.

Considering the evidence of PW-3, it referred to the stray sentence, which

we have quoted earlier, to the effect that the witness was not able to say

clearly as to which vehicle was at fault.  On this very basis, the High Court

endorsed  the  so-called  finding  of  the  Tribunal  that  it  was  an  act  of

contributory negligence.  The High Court, therefore, held both the vehicles

equally responsible for the accident and proceeded to dismiss the appeal.

It is this judgment, which has fallen for consideration before us.

7. The Learned Counsel, appearing on behalf of the appellants, firstly

invited our attention to the award passed by the Tribunal, as also to the

evidence led on behalf of the appellants and severely criticized the same.

The Learned Counsel also submitted that the approach of the Tribunal and

the High Court is erroneous and contrary to the evidence on record.  The

Learned Counsel for United Insurance Company Ltd., however, supported

the impugned judgment.   

8. In spite of our minute scrutiny of the award, we have not been able to

even find a mention of words “contributory negligence” in the award passed

by the Tribunal.   There  is,  in  fact,  no finding  given by the  Tribunal  as

regards  the  contributory  negligence.   The  subject  is  discussed  in

paragraphs 10 and 11, where we do not find any specific finding to the

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effect that Maruti Car was guilty of the contributory negligence.  It is only

because  the  amount  of  compensation  is  restricted  to  the  50%  of  the

assessed amount that we have to infer that the Tribunal had given a finding

of contributory negligence.  Even at the cost of repetition, we may say that

the words “contributory negligence” nowhere appear in the award passed

by  the  Tribunal.   There  is  only  one  stray  statement  in  the  award,

concerning the evidence of PW-3 Madhuriya Rajkhowa to the effect that he

failed to state which of the vehicles was actually at fault.  On this backdrop,

when  we see  the  impugned  judgment,  very  interestingly,  the  judgment

mentions in paragraph 9:-

“In the present case at hand, the learned Tribunal  has held that the accident took place due to contributory negligence of the driver of the truck and the Maruti Car.”

We are afraid, such sentence is not to be found in the award of the

Tribunal.  We do not know, as to where has this finding been found by the

High Court in the award.  The High Court then referred to the evidence of

PW-3 and referred to the same sentence by PW-3.  It is on the basis of this

stray  sentence that  the  High  Court  chose to  confirm the finding  of  the

Tribunal (which is not to be found) regarding the contributory negligence.

Such appreciation is clearly erroneous.

9. We  must  say  that  the  criticism  by  the  Learned  Counsel  for  the

appellants that the High Court, as well as, the Tribunal have not applied

their mind to the matter, is quite justified.  We, ourselves, have seen the

evidence  of  PW-3.   In  the  Examination-in-Chief,  the  witness  very

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specifically asserted that the truck was coming from the opposite direction

in a high speed from Jorhat side and it hit the Car, as a result of which Shri

Jadhav Rajkhowa and Shri Dhiren Hazarika died, while he had received

injuries.  He was undoubtedly right in saying that he could not say clearly

as  to  which  vehicle  was  at  fault,  however,  he  was  quick  to  deny  the

suggestion thrown at him that the accident took place because of the fault

of  Maruti  Car.   He  has  very  specifically  denied  that  suggestion  in  the

following words:-

“It  is not a fact that accident took place because of fault  of Maruti Car.”

As if all this was not sufficient, he then in his Cross-Examination at

the instance of Oriental Insurance Company Ltd., asserted that Maruti Car

was going on its own side (when the truck hit the Maruti Car).  Now, the

following factors are clear from this evidence:-

1. The truck was coming in high speed.

2. It was the truck, which hit the Car and not vice versa.

3. The Maruti Car was going on its own side.

It seems that the Tribunal, as well as, the High Court had chosen to

go by the inference drawn by PW-3 or at any rate, his inability to fix the

liability.   It  is  not  the judgment  of  the witness,  which is  decisive in  the

matter.  In fact, the Tribunal, as well as, the High Court should have framed

their own opinion, instead of going by the judgment or as the case may be,

inference by PW-3.

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Under such circumstances, applying the doctrine of res ipsa loquitor,

it is clear that it was because of the negligence on the part of the truck that

the accident took place.  After all the hit given by the truck was so powerful

that two persons in the Car died on the spot, while the third escaped with

serious injuries.   When  we see the  award of  the Tribunal,  as  also the

appellate judgment, they are astonishingly silent on these aspects.  We

are, therefore, convinced that there was no question of any contributory

negligence on the part of the driver of the Maruti  Car and it  was solely

because of the negligence on the part of the truck that the accident took

place.   

10. The question of contributory negligence on the part of the driver  in

case of collision was considered by this Court in Pramodkumar Rasikbhai

Jhaveri Vs. Karmasey Kunvargi Tak and Ors. reported in 2002 (6) SCC

455.  That was also a case of collusion in between a Car and a truck.  It

was observed in Para 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.”

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This Court further relied on an observation of High Court of Australia

in  Astley  Vs.  Austrust  Ltd. reported  in  1999  (73)  ALJR  403 to  the

following effect:-

“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.”

Keeping these principles in mind, we find that there was absolutely

no evidence to suggest that there was any failure on the part of the Car

driver to take any particular care or that he had breached his duty in any

manner. Such breach on his part had to be proved by Insurance Company

as it was its burden and for that, the Punchanama of the spot, showing tyre

marks caused by brakes, the Panchanama  of the damaged car and the

truck could have been brought on record.  The Insurance Company has

obviously failed to discharge its burden. We, therefore, respectfully follow

the above mentioned judgment.

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11. Under the circumstances, there would be no question of restricting

the claim to the 50% of the assessed amount of compensation.

12. The Learned Counsel for the respondents did not address us on the

question  of  quantum.   We  hold  that  the  compensation  was  correctly

assessed.  We, however, would not confirm the theory that the accident

took place because of the contributory negligence and would choose to

award full compensation to the appellants.  The appeal is allowed.  The

award  of  the  Tribunal  and  appellate  judgment  of  the  High  Court  are

modified to the extent we have indicated.  The appeal stands allowed with

costs.

………………………………..J. (S.B. Sinha)

………………………………..J. (V.S. Sirpurkar)

New Delhi;

February 17, 2009.

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