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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 20TH DAY OF JANUARY 2016

PRESENT

THE HON’BLE MR.JUSTICE RAM MOHAN REDDY

AND

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

M.F.A.NO.31686/2013 (MV)

C/W

M.F.A NOS.31483/2013 & 31412/2013 (MV)

IN M.F.A.NO.31686/2013

Between:

The General ManagerICICI Lombard Gen. Ins., Co. Ltd.,Timmapuri Circle, GulbargaThrough its Manager Legal

…Appellant(By Sri C. S. Kalburgi, Advocate)

And:

1. RajendrasinghS/o Kalyansingh ThakurAge: 37 years,Occ: KSRTC driver cum Conductor

R

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R/o Old Jewargi Road, Panchsheel NagarGulbarga- 585 102

2. Abdul Rahman S/o Khasim AliAge: 42 years, Occ: Owner ofThe Lorry No.KA-27-0649Mominpura, KharibowliGulbarga- 585 102

3. Divisional Controller, KSRTCDepot No.2, Gulbarga- 585 102

…Respondents

(By Sri A.M. Patil, Advocate for R3; R1 Served; Notice to R2 is dispensed with)

This Appeal is filed under Section 173(1) of MVAct, against the judgment and award dated17.4.2013 passed in MVC No.89/2011 on the file I-Addl.Senior Civil Judge and MACT at Gulbarga, partlyallowing the claim petition and awarding compensation

of Rs.1,95,000/- with interest at 6% P.A.

IN M.F.A.NO.31483/2013

Between:

1. Smt. Banashankari @ YallammaW/o Late Manohar BanasodeAge: 42 years, Occ: Household

2. Pooja D/o Late Manohar BanasodeAge: 25 years, Occ: Household

3. Rakesh S/o Late Manohar BanasodeAge: 23 years, Occ: Student

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4. RaghavendraS/o Late Manohar BanasodeAge: 22 years, Occ: Student

5. Rahul S/o Late Manohar BanasodeAge: 20 years, Occ: Student

All are residents of Chadchan, Taluka Indi

District Bijapur, Now at Residing HouseNo.135/B, opposite Darga, Gubbi ColonyGulbarga- 585 102

…Appellants(By Sri S.S. Kumman, Advocate)

And:

1. Abdul Raheem S/o Kasim Ali QureshiAge: 40 years, Occ: Owner of Lorry bearingNo.KA-27/0649, Resident of houseNo.6-196, Kari Bawali Mominpura

Gulbarga- 585 101

2. The Manager I.C.I.C.I. LombardGeneral Insurance Limited10th main, Keshav Rao Khade MargMahalaxmi Mumbai- 400 034

Through its Manager I.C.I.C.I. LombardGeneral Insurance Company LimitedKhotari Complex, Timmapur CircleVallabhi Chowk Gulbarga-585 102(Insurance of Insurer of Lorry BearingNo.KA-27/0649)

…Respondents(By Sri C.S. Kalburagi, Advocate for R2; Notice to R1 is dispensed with)

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This Appeal is filed under Section 173(1) of MVAct, against the judgment and award dated 16.02.2013passed in MVC No.969/2010 on the file Principal Senior

Civil Judge & MACT Gulbarga at Gulbarga, partlyallowing the claim petition and seeking enhancement ofcompensation.

M.F.A.NO.31412/2013

Between:

The General ManagerICICI Lombard Gen. Ins., Co. Ltd.

Mayura Complex, 10th mainKeshav Rao Khade Marg, MahalaxmiMumbai-400034, Through its ManagerICICI Lombard Gen. Ins. Co. Ltd.Ist Floor, Kothari ComplexTimmapuri Circle, Sardar Vallabai

Patel Chowk, GulbargaThrough its Manager Legal

…Appellant(By Sri C.S. Kalburgi, Advocate)

And:

1. Smt. Banashankari @ YallammaW/o Late Manohar BanasodeAge: 43 years, Occ: Household

2. Pooja D/o Late Manohar Banasode

Age: 26 years, Occ: Household

3. Rakesh S/o Late Manohar BanasodeAge: 24 years, Occ: Student

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4. RaghavendraS/o Late Manohar Banasode

Age: 23 years, Occ: Student

5. Rahul S/o Late Manohar BanasodeAge: 21 years, Occ: StudentAll are residents of Chadchan,Taluka Indi, District Bijapur

Now residing house No.135/BOpposite Darge, Gubbi ColonyGulbarga- 585 102

6. Abdul Raheem S/o Kasim Ali Qureshi Age: 43 years, Occ: Owner of Lorry Bearing

Reg. No.KA-27-0649, Resident ofHouse No.6-196, Kari BawaliMominpura, Gulbarga- 585 102

…Respondents(By Sri S.S. Kumman, Advocate for R1 t o R5; R6 – Served)

This Appeal is filed under Section 173(1) of MV

Act, against the judgment and award dated 16.02.2013

passed in MVC No.969/2010 on the file Principal Senior

Civil Judge and MACT at Gulbarga, partly allowing the

claim petition and awarding compensation of

Rs.30,57,100/- with interest at 6% P.A.

These Appeals are coming on for Orders this day,

RAM MOHAN REDDY J., delivered the following:

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JUDGMENT

Since common questions of fact and that of law

arise for decision making with the consent of learned

counsel for parties, appeals are clubbed together, finally

heard and disposed of by this common judgment.

2. MFA No.31686/2013 and MFA No.31412/2013

are filed by the insurer of Lorry bearing Certificate of

Registration No. KA-27-649, aggrieved by the finding

fastening liability to pay compensation, by judgment

and award dated 17.04.2013 in MVC No.89/2011 of the

I Addl. Senior Civil Judge & MACT, Gulbarga, and by

judgment and award dated 16.02.2013 in MVC

No.969/2010 of the Principal Senior Civil Judge &

MACT, Gulbarga. (for short ‘MACT’).

3. MFA No.31483/2013 is preferred by the claimants

in MVC No.969/2010, aggrieved by the judgment and

award dated 16.02.2013 in MVC No.969/2010 insofar

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as it relates to quantum of compensation and

attributing contributory negligence of 40% to the driver

of the public transport bus.

4. Respondent No.2 – owner/insured of the offending

lorry since placed exparte before MACT in MVC

No.89/2011, hence notice to said respondent is

dispensed with in the light of Karnataka Amendment to

Order 41 Rule 14 CPC.

5. Facts briefly stated are:

On 27.04.2010 at about 6.00 a.m. , one

Manohar, driver of bus bearing Certificate of

Registration KA-32-F-1440 belonging to North East

Karnataka Road Transport Corporation (for short

‘NEKRTC’), proceeding from Shimoga to Gulbarga, near

Khalifat Darga at Jewargi – Gulbarga road, is said to

have dashed a stationary Lorry bearing Certificate of

Registration KA-27-649 owned by one Abdul Raheem

(Abdul Rehaman) and insured by M/s.ICICI Lombard

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General Insurance Limited - appellants in MFA

Nos.31686/2013 & 31412/2013. Manohar – is stated to

have succumbed to grievous injuries on 28.04.2010

after being shifted to Basaveshwar Hospital, Gulbarga.

6. One Rajendra Singh, a conductor-cum-driver of

the NEKRTC bus having sustained grievous injuries due

to the said accident, filed MVC No.89/2011, since,

arraigned as respondent in MFA No.31686/2013,

though served with notice, is absent and un-

represented.

7. Dependents of the deceased Manohar filed MVC

No.969/2010, while the injured Rajendra Singh filed

MVC No.89/2011 for compensation invoking Section

166 of the Motor Vehicles Act, 1988, (‘Act’ for short).

Though the petitions arise out of the very same

accident, nevertheless, were proceeded with separately,

and the trial held independently.

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8. In both petitions, owner of the lorry-the insured,

and the insurance company-the insurer, were arraigned

as respondents. Insured/owner of the offending vehicle,

though served with notice of the petitions, before the

MACT, did not appear and was placed ex-parte in MVC

No.89/2011 while in MVC No.969/2010 was

represented by learned counsel, but did not offer

resistance by filing statement of objections to the claim

petitions. Insurer of the offending lorry resisted the

petitions by filing written statement interalia denying

the averments, contending that it was the driver of

NEKRTC bus who caused the accident hence,

responsibility was on the driver of NEKRTC bus, while

asserting that the offending lorry was parked on the

extreme left side of the road, though, without parking

lights or any signal, since there was no such

requirement. In addition, it was contended that the

driver of the offending lorry did not possess a valid and

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effective driving licence to drive the goods carrying

vehicle as on the date of accident.

9. MACT framed issues in MVC No.969/2010, first of

which related to negligence on the part of driver of the

lorry and second, over whether driver of NEKRTC bus

succumbed to grievous injury while third over the

quantum of compensation and from whom to be

recovered. Similar were the issues framed in MVC

No.89/2011, though with reference to the injured

claimant.

10. Parties let in evidence, when Police records, salary

certificate and medical records in respect of the

deceased and that of the injured were marked as

Exhibits. In M.V.C.No.969/2010, the 1st claimant,

widow, was examined as P.W.1, while Rajendra Singh,

the injured as P.W.2 and marked Exs.P.1 to P.7. For

the respondent – insurance company, three witnesses

namely, Pradeep, S/o Sidddannagouda, Legal Manager

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of the insurance company; Nazeersab, CPI, who turned

hostile, and Y.K.Narasimhamurthy, S/o Kumbayya,

Assistant Meteorologist of India, Meteorological

Department were examined as R.Ws.1 to 3. In MVC

No.89/2011, the claimant was examined as P.W.1; Dr.

Sachin Shah as P.W.2. For the respondents, Pradeep,

S/o Siddannagouda was examined as RW-1;

Basavantappa, the Accounts Officer of NEKRTC as RW-

2 and Y.K. Narasimhamurthy, as RW-3 and marked

Exs.R-1 to R-10.

11. MACT having regard to the pleadings, material on

record, evidence both oral and documentary, attributed

contributory negligence to the extent of 60% on the

driver of NEKRTC bus and 40% to the driver of the

offending lorry while fastening liability to pay

compensation, on the insurer of offending lorry to the

extent of 40% in both the petitions, however awarded

compensation of `1,95,000/- with interest @ 6% p.a.

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from the date of petition in MVC No.89/2011 and

`30,57,100/- as compensation to dependents of

deceased driver of the NEKRTC by the judgment and

award in MVC No.969/2010.

12. The appeals preferred by the insurance company –

insurer of the offending lorry are in respect of the

finding fastening liability to pay 40% of the

compensation since 40% of contributory negligence is

attributed to the driver of the offending lorry, while

appeal filed by claimants in MVC No.969/2010 is over

the finding attributing contributory negligence of 60%

on the driver of the bus belonging to NEKRTC, as well

as the quantum of compensation, asserting it to be on

the lower side.

13. It is submitted by learned counsel for the insurer

that the MACT was not justified in attributing

contributory negligence of 40% on the driver of the

offending lorry, as also fastening liability to pay 40% of

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the compensation, though the driver of the lorry did not

possess a valid and effective driver’s licence.

14. Learned counsel for the claimants/appellants

submits that in the absence of parking lights or hazard

lights of the offending lorry being switched on, a

mandate of law, coupled with the fact that the insurer

did not advance a plea in the written statement of

alleged contributory negligence, as also the MACT

having not framed a point for such consideration, there

was no justification to attribute contributory negligence

of 60% on the driver of the NEKRTC bus. The award of

compensation, it is submitted, is on the lower side.

15. Having heard the learned counsel, the following

three questions arise for decision making:

(i) Whether the finding of the MACT that accident

took place due to contribution of negligence by

both the drivers is justified?

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(ii) Whether the finding fastening liability to pay

the compensation on the insurer is justified?

(iii) Whether the compensation awarded by the

MACT in the facts and circumstances of the

case and evidence on record could be regarded

as “just” compensation within the

contemplation of the ‘Act’?

16. On the question of negligence, admitted facts are:-

lorry was parked on the left side of the road (highway) at

a place not being a notified parking place, without any

indication or lights as is discernible from the statement

of objections of the insurance company admitting said

fact, as well as the spot sketch – Ex.P-6 in MVC No.

89/2011; the driver of the bus belonging to NEKRTC

traversing on the road in question, noticed the lorry

ahead of it in a stationary position, despite efforts to

avoid a collision, dashed against the hind right side

portion of the Lorry, at about 6 AM, in the wee hours of

the morning of 27.04.2010; the insurer in the written

statement, did not advance the plea of contributory

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negligence on the part of the driver of the bus, the

MACT did not frame an issue or a point for

consideration over contributory negligence and, the oral

testimony of the witnesses for the insurer did not testify

to contribution of negligence of the driver of the bus.

17. P.W.1 is the first claimant, the widow of the

deceased, not an eye witness, while P.W.2, the

conductor-cum-driver testified to the fact that the lorry

was visible only when the bus of NEKRTC came near to

it, as the lorry did not have its parking lights switched

on. Nothing incriminating is elicited in the cross-

examination of PW-2 to disbelieve his evidence. R.W.2,

Nazeer Sab, the CPI since retired, though the witness

for the insurer, turned hostile and in his cross-

examination, nothing is elicited to disbelieve the

testimony. The testimony of RW-3 the Assistant

Meteorologist is of no assistance, since according to him

at 6 AM sun rise had occurred on the relevant day.

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18. Whether the driver of the offending lorry could

have parked the vehicle on the left side of the road

without switching on the parking lights, takes us to an

examination of Sections 117 and 122 of the Motor

Vehicles Act, 1988 which reads thus:

“117. Parking places and haltingstations. -- The State Government or anyauthority authorised in this behalf by the

State Government may, in consultationwith the local authority having jurisdictionin the area concerned, determine places atwhich motor vehicles may stand eitherindefinitely or for a specified period of time,and may determine the places at which

public service vehicles may stop for alonger time than is necessary for the takingup and setting down of passengers.

122. Leaving vehicle in dangerousposition-- No person in charge of a motor

vehicle shall cause or allow the vehicle orany trailer to be abandoned or to remain atrest on any public place in such a positionor in such a condition or in suchcircumstances as to cause or likely tocause danger, obstruction or undue

inconvenience to other users of the publicplace or to the passengers.”

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Rule 109 of the Central Motor Vehicle Rules,

1989 provides for ‘parking light’ and reads thus:

“109. Parking light. Every constructionequipment vehicle and every motor vehicleother than motor cycles and three wheeledinvalid carriages shall be provided with onewhite or amber parking light on each sidein the front. In addition to the front lights,

two red parking lights one on each side inthe front. In addition to the front lights, twored parking lights one on each side in therear shall be provided. The front and rearparking lights shall remain lit even whenthe vehicle is kept stationary on the road:

Provided that these rear lamps can bethe same as the rear lamps referred to inthe rule 105 sub-rule (2):

Provided also that construction

equipment vehicles, which are installedwith flood light lamps or sport lights at thefront, rear or side of the vehicle for theiroff-highway or construction operations,shall have separate control for such lampsor lights and these shall be permanently

switched-off when the vehicle is travellingon the road.”

19. In the light of the aforesaid statutory provisions,

the offending lorry when not parked at a notified

parking place or halting station, and the driver having

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left the vehicle in a dangerous position likely to cause

danger or undue inconvenience to other users of the

public place, coupled with the fact, that parking lights

were not lit when the vehicle was kept stationary on the

road; a mandate of Rule 109 of the Rules, there can be

no more doubt that the driver of the offending vehicle

i.e., lorry was negligent in parking the lorry on the road

put to use by other motor vehicles, the cause of

accident.

20. A Division Bench of this Court in M.N.Rajan and

others vs. Konnali Khalid Haji and another1,

considering the pleading, on whom the burden of proof

is placed and standard of proof expected to establish

“contributory negligence”, the Bench of which one of us

(RMRJ) was the companion judge observed thus:

“We also do not find any merit in the alternate

contention of the learned counsel for the owner

and the insurer of the lorry that, at the worst, it is

1 MFA No.5673/2001 DD 07.08.2003

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a case of contributory negligence and, therefore,

the liability to pay the entire compensation cannot

be fastened on the owner and the insurer of the

lorry. In the first place, it needs to be noticed that

the plea of contributory negligence is not taken in

the written statement filed by the respondent

No.2/Insurance Company. Respondent Nos.1 and

3 did not file the written statement at all.In the

case of Pandian Roadways Corporation,

Madurai vs. Karunanithi and another(air 1982

Mad 104: 1982 ACJ 186: 1982 TAC 356), it is

held that plea of contributory negligence should be

taken in the written statement before the Claims

Tribunal. Further more, in the case of M/s

Yatayat Nigam, Udaipur vs. Union of India(AIR

1983 Rj 17: 1983 ACJ 312; 1983 TAC 480), it

is held that where negligence of plaintiff’s bus

driver was not pleaded by the defendant, no issue

was framed by the trial Court covering

contributory negligence and no evidence was led,

Rajasthan High Court took an exception to the

judgment of the Appellate Court in making out a

new case with regard to contributory negligence.”

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21. The principle of contributory negligence is that

plaintiff’s negligence is attracted in part to his own

harm and would thus reduce the damages payable to

him and as such, it affects the measure of damages.

22. In the present case, contributory negligence of the

bus driver was not pleaded by the insurer. No issue

was framed by the MACT covering contributory

negligence and no evidence was led and therefore, a new

case in regard to contributory negligence cannot be

made out.

23. In General Manager, Bangalore Transport

Service vs. N.Narasimhiah and others2, a co-ordinate

Division Bench observed thus:

“If it is found that the negligent act or

omission of a driver was the proximate and

efficient cause of an accident, it will not be a

valid defence to say that the person injured was

also negligent unless it is shown that the person

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injured had made it extremely difficult for the

other to avoid the accident”.

24. In Sharada Bai vs. Karnataka State Road

Transport Corporation3, another co-ordinate Division

Bench observed thus:

“If the tort-feasor’s negligence or breach of duty

is established as causative of the damage, the

onus is on him to establish that the victim’s

contributory-negligence was a substantial or co-

operating cause. In order to establish the defence

of contributory negligence the propounder of that

defence must prove, first, that the victim failed to

take reasonable care of himself or, in other words,

such care as a man of ordinary prudence would

have done and that was a contributory-cause of

the accident. The amount of care which a person

could reasonably be expected to take, must needs

vary with the circumstances and conditions

actually prevailing at the material point of time.

However, it is relevant to note that, in order to

discharge the burden of proof, it is unnecessary

for the propounder of that defence to adduce

2 1976 ACJ 379

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evidence about the matter. Contributory

negligence can be - and very often is - inferred

from the evidence already adduced on the

claimants behalf or from the perceptive facts,

either admitted or found established, on a balance

of probabilities in the case.”

25. In Pramodkumar Rasikbhai Jhaveri vs.

Karmasey Kunvargi Tak and others4, the Apex

Court, having regard to contributory negligence

observed thus:

“10. It has been accepted as a valid principle

by various judicial authorities that where, by his

negligence, if 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 Swadling vs. Cooper5 AC at p.9

Lord Hailsham said: (All ER p.260 D-E)

3 ILR 1987 KAR 2730

4 (2002)6 SCC 455

5 1931 AC 1

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“Mere failure to avoid the collision by taking

some extraordinary precaution does not in

itself constitute negligence. The plaintiff has

no right to complain if in the agony of the

collision the defendant fails to take some step

which might have prevented a collision unless

that step is one which a reasonably careful

man would fairly be expected to take in the

circumstances.”

26. In Municipal Corporation of Greater Bombay

vs. Laxman Iyer and another6, the Apex Court

observed thus:

“6.The plea which was stressed strenuously

related to alleged contributory negligence. Though

there is no statutory definition, in common

parlance “negligence” is categorised as either

composite or contributory. It is first necessary to

find out what is a negligent act. Negligence is

omission of duty caused either by an omission to

do something which a reasonable man guided

upon those considerations, who ordinarily by

reason of conduct of human affairs would do or be

obligated to, or by doing something which a

6 (2003)8 SCC 731

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prudent or reasonable man would not do.

Negligence does not always mean absolute

carelessness, but want of such a degree of care as

is required in particular circumstances.

Negligence is failure to observe, for the protection

of the interests of another person, the degree or

care, precaution and vigilance which the

circumstances justly demand, whereby such other

person suffers injury. The idea of negligence and

duty are strictly correlative. Negligence means

either subjectively a careless state of mind, or

objectively careless conduct. Negligence is not an

absolute term, but is a relative one; it is rather a

comparative term. No absolute standard can be

fixed and no mathematically exact formula can be

laid down by which negligence or lack of it can be

infallibly measured in a given case. What

constitutes negligence varies under different

conditions and in determining whether negligence

exists in a particular case, or whether a mere act

or course of conduct amounts to negligence, all

the attending and surrounding facts and

circumstances have to be taken into account. It is

absence of care according to circumstances. To

determine whether an act would be or would not

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be negligent, it is relevant to determine if any

reasonable man would foresee that the act would

cause damage or not. The Omission to do what

the law obligates or even the failure to do anything

in a manner, mode or method envisaged by law

would equally and per se constitute negligence on

the part of such person. If the answer is in the

affirmative, it is a negligent act. 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 the other’s negligence.

Whichever party could have avoided the

consequence of the 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

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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

the power to apportion the loss between the

parties as seems just and equitable.

Apportionment in that context means that damage

is reduced to such an extent as the court thinks

just and equitable having regard to the claim

shared in the responsibility for the damage. But in

a case where there has been no contributory

negligence on the part of the victim, the question

of apportionment does not arise. Where a person

is injured without any negligence on his part but

as a result of the combined effect of the negligence

of two other persons, it is not a case of

contributory negligence in that sense. It is a case

of what has been styled by Pollock as injury by

composite negligence. (See Pollock on Torts, 15th

Edn., p. 361.)

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7. At this juncture, it is necessary to refer to the

“doctrine of last opportunity”. The said doctrine is

said to have emanated from the principle

enunciated in Davies vs. Mann [(1842) 10 M&W

546] which has often been explained as amounting

to a rule that when both parties are careless the

party which has the last opportunity of avoiding

the results of the other’s carelessness is alone

liable. However, according to Lord Denning it is

not a principle of law, but a test of causation. [See

Davies v. Swan Motor Co. (Swansea) Ltd. (1949) 2

KB 291)] Though in some decisions, the doctrine

has been applied by courts, after the decisions of

the House of Lord in Volute [(1922) 1 AC 129)] and

Swadling v. Cooper, [(1931 AC 1)] it is no longer to

be applied. The sample test is, what was the

cause or what were the causes of the damage. The

act or omission amounting to want of ordinary

care or in defiance of duty or obligation on the

part of the complaining party which conjointly

with the other party’s negligence was the

proximate cause of the accident, renders it one to

be the result of contributory negligence.”

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27. In Smt. Indira Nehru Gandhi vs Shri Raj

Narain7, the Constitution Bench of the Supreme Court,

while disapproving A finding of ‘a defacto agency’

recorded by the Allahabad High Court, which was

neither set up nor was subject matter of an issue,

reiterated well recognized principle that ‘no amount of

evidence could be looked into on a case not really set

up’.

28. In Winfield and Jolowicz on Tort (18th edition),

learned author’s speaking about ‘Duty of Care’ and

‘Standard of Care’ states thus:

Duty of Care

“The existence of a duty of care is, of course,

essential to a cause of action for negligence, but

for contributory negligence it is quite unnecessary

that that the claimant should owe a duty of the

defendant. All that is required is that the claimant

should have failed to take reasonable care for his

own safety. One sometimes comes across

references to the claimant owing himself a duty to

7 AIR 1975 SC 2299

29

take care of his own safety, but strictly speaking

this, like the “duty” to mitigate, is a contradiction

in terms. The fact that the defendant is under a

duty of care to guide and supervise the claimant

does not necessarily exclude contributory

negligence if the claimant fails to warn the

defendant that he is “getting out of his depth”.”

Standard of Care

“If what is alleged is negligence by the claimant,

the standard of care expected of him for his own

safety is in general the same as that in negligence

itself and is in the same sense objective and

impersonal, though, as there, some concession is

made towards children and probably towards other

persons suffering from some infirmity of disability

rendering them unable to come up to the normal

standard. Putting aside such exceptional cases, a:

“[P]erson is guilty of contributory negligence if

he ought reasonably to have foreseen that, if he

did not act as a reasonable, prudent man, he

might be hurt himself and in his reckonings he

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must take into account the possibility of other

being careless.

The degree of want of care which will constitute

contributory negligence varies with the

circumstances: the law certainly does not require the

claimant to proceed on his way like a timorous

fugitive constantly looking over his shoulder for

threats from others. For example, it is not the law

that a pedestrian is guilty of contributory negligence

if he crosses the road without using an “authorised”

crossing.

As with any other aspect of the law of negligence

the standard of care demanded may be adjusted to

meet changing conditions; for example, in Froom v

Butcher the Court of Appeal held that non-use of car

seat belt generally constituted contributory

negligence some seven years before Parliament mad

the wearing of belts compulsory. Now that there is

legislation requiring belts to be worn the correctness

of this decision becomes even more obvious, though

the incidence of criminal liability and contributory

negligence may not be entirely coterminous. For

many years there has been increasing public

awareness of the dangers of smoking and a reduction

was made under the Act for the claimant’s failure to

31

give up where this had made a material contribution

to his lung cancer, which was also cause by the

defendants’ exposure of him to asbestos. However,

although public attitudes towards drinking and

driving have become more severe in recent years, a

person who accepts a lift from a person whom he has

not seen consuming large quantities of alcohol is no

obliged to interrogate him on his consumption.”

29. In the facts noticed supra, the question as to

whether the deceased driver of the bus also contributed

negligence for causing the accident being indisputably a

question of fact, which ought to have emanated from a

plea of contributory negligence as a defence by the

insurer of the offending lorry and having not done so in

the written statement, coupled with the fact that no

issue with respect to contributory negligence is framed

by the MACT nor was evidence adduced in support of

such a claim, while even before us, it is not the

contention of the insurer that deceased also contributed

negligence for causing the accident, we do not think

32

that MACT was justified in attributing contributory

negligence to the deceased also in causing the accident.

Consequently, we cannot sustain the finding of the

MACT insofar as it has attributed 60% contributory

negligence to the deceased.

30. The admitted facts as regards the plea of the

insurer of the offending lorry that the driver of the said

lorry did not possess a valid and effective driving licence

as on the date of accident, except in the statement made

in the written statement, nothing is elicited from the

evidence of R.W.2, CPI, nor, is there any material in the

charge sheet Ex.P.2 over allegations of violation of

Section 3(1) or Section 181 of the Act for not possessing

effective and valid driving licence. In the deposition of

RW-1, the Law Officer of the insurer, makes no

reference to proof of alleged plea that the driver did not

have a valid driving licence. Ex.P.2 in MVC No.89/2011

discloses the name of the accused driver of the lorry as

33

Abdul Gafoor, S/o Abdul Hameed, charged with offence

under the Indian Penal Code. In Ex.R.3, letter of the

Assistant Regional Transport Officer, Bhalki Division,

Bidar, dated 04.07.2012, particulars of driving licence

of the holder by name Abdul Gaffoor, S/o Abdul Mohit

Qureshi, resident of Mohalla Galli, Humnabad, District:

Bidar, is certified to have held driving licence to drive

LMV, MGV and HGV. Therefore, there is a clear crises

over identity of the driver of the offending vehicle, since

the names in the charge sheet and in the

communication, Ex.R.3 differ and hence no credence

could be attached to Ex.R-3 to say that the person

mentioned therein was the driver of vehicle and did not

possess effective driving licence on 24.07.2010. In the

absence of examining the author of Ex.R.3 or any other

office of the Regional Transport Authority, muchless,

evidence of the driver/ accused of the commission of the

offence under IPC who was charge sheeted, there is no

material whatsoever to discharge the burden cast upon

34

Insurance Company under Section 149(1) of the ‘Act’ to

prove that driver of the offending vehicle did not possess

effective and valid driving licence as on the date of

accident.

31. It is useful to refer to the decision of the Apex

Court in Rukmini vs New India Assurance Co.8

though with regard to Section 96(2)(b)(ii) of the MV Act,

1939 by observing thus:

“3. We have seen the only evidence whichthe Insurance Company produced in supportof the plea. This is the evidence of Inspectorof Police who investigated the accident. In

his evidence, PW1 who was the Inspector ofPolice, stated in his examination–in-chief.“My enquiry revealed that the 1st respondentdid not produce the licence to drive theabovesaid scooter. The 1st respondent evenafter my demand did not submit the licence

since he was not having it.” In his cross-examination he has said that it is theInspector of Motor Vehicles who is requiredto check whether the licence is there but hehad not informed the Inspector of MotorVehicles that the 1st respondent was not

having a licence since he thought it was notnecessary. In our view, this evidence is notsufficient to discharge the burden which was

8 (1998)9 SCC 160

35

cast on the Insurance Company. It did notsummon the driver of the vehicle. No recordfrom the road Transport Authority has also

been produced. In these circumstances, theInsurance Company has not discharged theburden cast upon it under Section 96(2) (b)(ii) of the Motor Vehicles Act, 1939. Theimpugned order of the High Court is,therefore, set aside and the order of the

Tribunal is restored. The appeal is allowedaccordingly. No order as to costs.”

(emphasis supplied)

32. In similar though not identical circumstances in

M/s. Oriental Insurance Company Limited vs

Ramesh B. Jain and Others9, in the facts obtained

therein, it was observed that evidence also does not

come to the aid of appellant to discharge its primary

duty to establish that there was a breach of the terms of

the policy in order to secure benefit of sub-section (2) of

Section 149 of the Motor Vehicles Act,1988.

33. Regard being had to burden cast upon the

insurance company under Section 149(2) of the Motor

Vehicles Act, 1988 which when not discharged, MACT

36

was fully justified in fastening liability on the insurer of

the offending lorry to pay compensation.

34. First respondent in MFA No.31412/2013 being the

claimant injured since served with notice and is

unrepresented, the finding the MACT in this order over

contributory negligence, remains undisturbed.

35. The claim for enhancement of compensation by

the claimant in MVC No.969/2010 being appellants in

MFA No.31483/2013 is on the premise that: (a) MACT

was not justified in deducting 1/3rd towards personal

and living expenses of the deceased when he had left

behind a widow , unmarried daughter and three sons all

students in the age group of 18-21; (b) that the award of

`15,000/- towards loss of consortium for the widow is

on the lower side; (c) award of `10,000/- to the children

towards love and affection is on the lower side, award of

9 ILR 2003 KAR 5164

37

`10,000/- towards funeral expenses is also on the lower

side.

36. Learned counsel for insurance company seeks to

sustain the judgment and award over quantum of

compensation as well merited, fully justified and not

calling for interference.

37. Ex.P-7 – salary certificate of the deceased

Manohar – driver of the NEKRTC bus discloses that in

the month of April, 2010 he was paid a gross salary of

`23,738/- and deducting `200/- towards Professional

Tax, net salary of `23,538/- was paid. Deceased was

aged 46 as on the date of accident and death. Adding

30% of the salary towards ‘loss of future prospects’,

equivalent to `7061/-, total salary is `30,599/-.

Deceased having left behind a widow and four children,

one of which is an unmarried daughter, while other

three are students, we think it appropriate to deduct

1/4th towards personal expenses of the deceased.

38

Monthly loss of dependency is `22,949.15, rounded off

to `22,950/- and annual loss of dependency is

`2,75,400/-. Applying multiplier ‘13’ for age 46 of

deceased, total loss of dependency is `35,80,200/- as

against `30,12,100/- awarded by MACT and therefore,

claimants are entitled to difference of `5,68,100/-.

38. Regard being had to decision of Apex Court in

Munnalal Jain vs Vipin Kumar Sharma10, a widow is

entitled to, in the least, `50,000/- towards ‘loss of

consortium’ as against `15,000/- awarded by MACT

and therefore she is entitled to balance of `35,000/-.

39. Children of whom one is an unmarried daughter

and three sons are students, award of `10,000/-

towards ‘love and affection’ is frugal. We think it

appropriate to award `20,000/- in addition which is just

and reasonable entitling the said appellants-2 to 5 an

additional sum of `20,000/-.

10

((2015)6 SCC 347)

39

40. Award of compensation of `10,000/- towards

‘funeral expenses’ is on the lower side and in the light of

aforesaid decision, we think it appropriate to add

another sum of `10,000/-.

41. We find no infirmity in the award of `10,000/-

towards ‘loss of estate’ by MACT.

42. In the result, MFA No.31686/2013 and MFA

No.31412/2013 filed by Insurance Company are

dismissed. Amount in deposit is ordered to be

transmitted to the MACT forthwith.

43. MFA No.31483/2013 is allowed in part. Finding

on contributory negligence is set aside. Actionable

negligence is attributed to the driver of offending lorry

and claimants are entitled to ` 6,33,100/- in addition to

what is awarded by the MACT.

40

44. As regards apportionment of compensation

towards ‘loss of dependency’ shall be in the following

manner:

Widow - 50%

UnmarriedDaughter - 20%

3 sons (equally) - 10%

As regards deposit, to be effected as directed in the

judgment and award of the MACT.

Sd/- JUDGE

Sd/- JUDGE

*sp /kcm