Dismissed

M/s. The New India Assurance Company Limited v. Smt. Nada Vijaya Suseela

Telangana HC14 Feb 2012MACMA/2836/2007

Case brief

AI extract

What is this about?

This appeal by the insurance company against compensation granted by the Motor Accident Claims Tribunal was dismissed. The court held that contributory negligence could not be presumed merely because two vehicles were involved. The appellant, having failed to adduce evidence to prove the deceased's negligence, could not succeed in the claim.

What did the court decide?

Appeal dismissed; no order as to costs.

M/s. The New India Assurance Company Limited Vs Smt. Nada Vijaya… — Insurance | Telangana HC (2012)

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THE HON’BLE MR JUSTICE R. KANTHA RAO

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MACMA NO. 2836 OF 2007

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DATED: 14.02.2012

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Between:

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M/s The New India Assurance Company

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.. Appellant

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And

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Smt Nada Vijaya Suseela and others

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.. Respondents

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THE HON’BLE MR JUSTICE R. KANTHA RAO

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MACMA NO. 2836 OF 2007

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JUDGMENT:

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This appeal arises out of the order dated 20.09.2007 passed by the Motor Accident Claims Tribunal cum II Additional District Judge, at Vijayawada in M.V.O.P.No.312 of 2005.

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2. Heard Sri Naresh Byrapaneni, learned counsel appearing for the appellant and Sri Saigangadhar Chamarthy, leaned counsel appearing for the respondents 1 to 3.

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3. M/s New India Assurance Company which is the third respondent before the Tribunal filed the present appeal. Though the appellant challenged the quantum of compensation granted by the Tribunal on the ground that it is on higher side, the learned counsel appearing for the insurance company confined his argument to the issue of the alleged contributory negligence of the deceased which was not taken into consideration by the learned Tribunal.

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4. According to the claimants, who are the legal representatives of the deceased, while the deceased and the first

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respondent were proceeding on the scooter bearing No. AP 16 2404 from Ibrahimpatnam to Kondapalli to purchase a gift article, a mini van bearing No. AP 7 V 4001 driven by the fourth respondent came in the opposite direction in a rash and negligent manner and dashed the scooter, as a result of which, the deceased who was driving the scooter and the first respondent PW.1, the pillion rider fell down from the scooter and ultimately the deceased died in consequence of the injuries received in the accident.

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5. The appellant insurance company filed counter before the learned Tribunal challenging the manner of occurrence of accident which was alleged in the claim petition and contended that the accident was due to rash and negligent driving of the scooter.

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6. Before the learned Tribunal, in the course of enquiry, the claimants examined PW.1, the injured eyewitness who is no other than the wife of the deceased to prove the accident in the manner stated in the claim petition. PW-1 had categorically stated in her evidence that the accident occurred on account of rash and negligent driving of the driver of the mini van bearing No. AP 7 V 4001and the appellant/insurance company which controverted the said fact in the counter, did not adduce any evidence. The learned Tribunal placing reliance on the evidence of PW.1 and the contents of Ex.A.1-copy of the FIR which was lodged at the earliest point of time and as there is no contra evidence let in by the appellant/insurance company held that the accident was solely on

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account of the rash and negligent driving of the driver of the mini van.

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7. Learned counsel appearing for the appellant/insurance company would submit that even according to the averments of the claim petition, the accident occurred due to involvement of the two vehicles and the learned Tribunal erred in not considering the contributory negligence on the part of the scooterist, the deceased. He relied on a decision reported in RAJ RANI v ORIENTAL INSURANCE CO. LTD.^[1] wherein the Supreme Court held as follows:

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“So far as the issue of ‘contributory negligence’ is concerned, we may notice that the tribunal has deducted 1/3^rd from the total compensation on the ground that deceased had contributed to the accident. The same, we find, has been upheld by the High Court. This Court in Usha Rajkhowa and others V Paramount Industries and others (JT 2009(2) SC 572) discussed the issue of contributory negligence noticing, inter alia, earlier decisions on the same topic. It was held that:

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‘The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v Karmasey Kunvargi Tak and others reported in (JT 2002 (6) SC 380). 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

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either himself or his property, so that he becomes blameworthy in part as an author of his own wrong’. The principle of 50:50 in cases of contributory negligence has been discussed and applied in many cases before this Court. In Sri Krishna Vishweshwar Hede V The General Manager, K.S.R.T.C. (JT 2008 (4) SC 4521), this Court upheld the judgment of the Tribunal assessing the, ratio of liability at 50:50 in view of the fact that there was contributory negligence on the part of the appellant and fixed the responsibility for the accident in the ratio of 50:50 on the driver of the bus and the appellant. In this case, the truck was stationary, some amount of negligence on the part of the deceased cannot be ruled out. Hence in the instant case, we find that there was contributory negligence on the part of the deceased and accordingly the claimant was entitled to only 50% of the total amount of loss of dependency.’

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8. In the case before the Supreme Court that there was evidence showing contributory negligence on the part of the deceased. In the instant case, as per the case of the claimants the accident was solely on account of rash and negligent driving of the driver of the mini van bearing No.AP 7 V 4001. The claimants had proved their case by adducing convincing evidence that the driver of the mini van was solely responsible for the accident. Whereas, the appellant/insurance company did not adduce any evidence to prove its contention that the accident was caused due to the rash and negligent driving of the scooterist (deceased) himself. There was no plea in the counter regarding the contributory negligence of the deceased. Though, it was contended that the accident was on account of the fault of the deceased himself, but to substantiate the said fact, no evidence

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was adduced by the appellant/insurance company. Merely because two vehicles were involved in the accident, it cannot be said that there is contributory negligence on the part of the deceased. Any finding as to the contributory negligence has to be arrived at only basing on specific pleading and adducing evidence in proof thereof. But, in the instant case, there was no evidence forthcoming showing contributory negligence on the part of the deceased. For the first time, the plea of contributory negligence was raised in this appeal by the appellant/insurance company. There is also no substance in the contention that from the contents of the claim petition itself the contributory negligence on the part of the deceased can be presumed, the reason being the specific case of the claimants is that the accident was solely on account of the rash and negligent driving of the driver of the mini van. They could prove the said fact by examining PW.1 and marking Ex.A.1copy of the FIR. In the instant case, there is no material to hold that the deceased, who was driving the scooter also contributed for the accident to some extent.

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9. For the foregoing reasons, I see absolutely no merit in the appeal and accordingly, dismiss the same. There shall be no order as to costs.

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___________________ Date: 14.02.2012 R. KANTHA RAO, J kvrm

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THE HON’BLE MR JUSTICE R. KANTHA RAO

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MACMA NO. 2836 OF 2007

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DATED: 14.02.2012

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[1] 2009 AWC (4) 3342