Contributory Negligence | Vehicle Suffering Higher Damage In Accident Doesn't Mean Its Driver Was Speeding: Gujarat High Court
The Gujarat High Court has said that merely because a motorcycle suffers damage at "higher scale" in an accident would not mean that the motorcyclist was travelling at a higher speed. The court made the observation while hearing an appeal moved by the deceased's kin challenging an order which held there was 20% contributory negligence attributable to the deceased. Justice JL Odedra in his...
The Gujarat High Court has said that merely because a motorcycle suffers damage at "higher scale" in an accident would not mean that the motorcyclist was travelling at a higher speed.
The court made the observation while hearing an appeal moved by the deceased's kin challenging an order which held there was 20% contributory negligence attributable to the deceased.
Justice JL Odedra in his order said:
"...this Court reiterates that it is for the Insurance Company to prove the negligence of the claimant in order to avoid corresponding liability from falling on them. However, the Insurance Company appears not to have examined the driver. Again, the argument of the learned advocate Ms. E. Shailaja, for the Insurance Company was that that it would be the vehicle which was traveling at a higher speed which would cause/suffer higher damage is not scientifically sustainable. The damage to a vehicle would depend upon the nature of material that it is made on and combined velocity of both the vehicles at the time of a collusion. Therefore, merely because the motorcycle has suffered damage at a higher scale does not mean that it was the motorcyclist who was traveling at a higher speed..."
The court further observed that the test is not sustainable since negligence is a "factual determination" and merely because a particular vehicle is higher or lower, negligence cannot be apportioned on the basis of such vehicular size.
"In the circumstances, as the burden of proving contributory negligence by the Insurance Company has not been discharged, therefore, the finding of the Tribunal that the motorcyclist was negligent to the extent of 20% is liable to be interfered with, and accordingly, it is set aside," the court held.
The court was hearing an appeal challenging award passed by the Motor Accident Claims Tribunal granting compensation of Rs.8,00,960 with simple interest at the rate of 9% per annum from the date of filing of the claim petition till realization jointly and severally from opponent Nos.1 & 2.
On 08.01.2006 deceased Sunilbhai Jesabhai Gamit, who was riding his motorcycle with a pillion rider met with an accident with a truck which was approaching the motorcycle from the opposite side.
The appellant's counsel argued that the Tribunal has erred in attributing 20% negligence to the deceased as no evidence whatsoever was lead to draw an inference that the negligence of 20% was liable to be attributed to the deceased.
It was submitted that it was for the Insurance Company to allege negligence and insulate themselves from paying pro rata share of compensation commensurate to such negligence. It was submitted that the burden to prove the same was on the Insurance Company. It was further submitted that no evidence whatsoever except the Panchnama has been relied upon by the Tribunal to come to the conclusion.
The appellant's counsel said that driver of the truck was never examined though the truck's owner could have easily summoned him for deposing before the Tribunal. It was submitted that in absence of driver deposing before the Tribunal, the extent of negligence cannot be proved by the Insurance Company, thus finding of 20% negligence of deceased was wrong.
It was submitted that the Tribunal has considered Rs.3,000 per month as the notional income of the deceased in absence of any evidence on income of the deceased. Even the loss of consortium is only awarded to the extent of Rs.1,00,000 and Rs.50,000 has been awarded under the Head of Loss of Care and Guidance. It was submitted that the dependents of the deceased are a widow, 3 minor daughters and both the parents.
It was thus, submitted that all of them would be entitled to consortium at the rate of Rs.48,400 each and that therefore, the amount under consortium would be Rs.48400/- x 6 which is Rs.2,90,400. It was submitted that additional amount which would be Rs.2,90,400. It was further argued that under the head of loss of Estate and Funeral Expenses, a sum of Rs.18,150 ought to be awarded.
The Insurance Company's counsel argued that Tribunal's finding on contributory negligence was right as the Panchnama indicated that there was higher damage to the motorcycle, and therefore, the deceased can be inferred to have been traveling at a higher speed, thereby causing higher damage to his vehicle.
It was submitted that the negligence to a bigger vehicle would be at a higher rate and that to the smaller vehicle would be lower extent, which was the case before the Tribunal, and therefore, the Tribunal rightly awarded 80% negligence to the driver of the bigger vehicle – the truck and only 20% to the deceased.
The court noted that there was no evidence on record except for the Panchnama performed at the scene of the accident, for determining the accident. On perusal of the Panchnama, the court found, that it did not indicate that at which lane of the road the accident happened.
"Therefore, the negligence, on the basis that the vehicle veered to the other side and caused an impact/collusion, upon the other vehicle allegedly travelling its own lane, is not possible to determine from the said Panchnama," the court said.
The court also enhanced the compensation to Rs.11,52,900 directing the Insurance Company to deposit the awarded amount together with 9% interest within 8 weeks.
Case title: GEETABEN SUNILBHAI GAMIT & ORS. v/s ASHOKSING RAMAKANTSING CHOUHAN (DISMISSED) & ANR
R/FIRST APPEAL NO. 2148 of 2015