Nafr High Court
Case Details
1 MAC No. 418 of 2022 ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.08.20 17:42:19 +0530 2025:CGHC:41539 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 418 of 2022 1. National Insurance Company Limited, 1st Floor Navin Bazar, Phul Chouwk Raipur, Chhattisgarh Through Authorized Signatory Officer In Charge T.P. Hub For National Insurance Company Limited Divisional Office, Vyapahar Vihar Road Above Canara Bank Bilaspur 495001. versus ... Appellant
Legal Reasoning
6. With regard to the contributory negligence this Court in the matter of Oriental Insurance Company Ltd. v. Smt. Seema Pandey and Others 1 has held as under:- “10. It is well settled that the Insurance Company taking a plea of contributory negligence on the part of the victim, must lead evidence with regard thereto and unless such evidence is led by the Insurance Company, the Insurance Company's plea with regard to the The contributory negligence cannot succeed. Insurance Company must state specifically that there 1 2014 (1) C.G.L.J. 270 [MAC No.653/2012; decided on 8.11.2013 4 MAC No. 418 of 2022 was some causal connection of the deceased with the damage suffered by him to hold that the conduct of the deceased amounted to contributory negligence. Similarly, there had to be some connection on the part of the deceased showing absence of reasonable care for his own safety which contributed to the damage. 11. The Law of Torts by Justice G.P. Singh, the following propositions of law regarding contributory negligence have been stated: "It is to be noted that negligence of the plaintiff which can be described as contributory negligence must have casual connection with the damage suffered by him." "The question simply is whether the plaintiff or the deceased (in case of claims arising out of death) had failed to take reasonable care of his own safety which had contributed to the damage." 12. In Case of Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and 2 , the Supreme Court held as under:– another 6 . ……... Where an accident is due to negligence of both parties, substantially there would be 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 other's whichever party could have avoided the consequence of other's would be liable for the accident. It 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 there has been an act or omission on the part of the plaintiff which has materially contributed to 2 (2003) 8 SCC 731 5 MAC No. 418 of 2022 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 Charles worth on Negligence, 3rd Edn. Page 328). It is now well settled that in the case of contributory negligence, Courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages are 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. 13. In case of Jhaveri Vs. Karmasey Kunvargi Tak and others the Supreme Court held as under :– Pramodkumar Rasikbhai 3 , 8. We do not think that these two reasons given by the High Court fully justify the accepted principles of contributory negligence. 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. 9. Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of reasonable man is as relevant in the case of plaintiff's contributory 3 (2002) 6 SCC 455 6 MAC No. 418 of 2022 negligence as in the case of defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley Vs. Austrust Ltd. (1999) 13 ALJR 403 is worthy of quoting: "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." 14. In a recent decision in Minu Rout & Anr. Vs. 4 , the plea of Satya Pradyumna Mohapatra & Ors. contributory negligence was taken by Insurance Company, but neither driver nor any independent 4 2013 AIR SCW 5375 7 MAC No. 418 of 2022 witness was examined to prove the allegation of contributory negligence. The Supreme Court while setting aside the finding of contributory negligence, held as under :– "12. ……...The Tribunal ought to have seen that non production of FIR has no consequence for the reason that charge sheet was filed against the truck driver for the offences punishable under Sections 279 read with Section 302 of IPC read with the provisions of the M.V. Net The Insurance Company, though claimed permission under Section 170 (b) of the Motor Vehicles Act, 1988 from the Tribunal to contest the proceedings by availing the defence of the owner of the offending Verile, it did not choose to examine either the driver of the truck or any other independent eye witness to prove the allegation of contributory negligence on the part of the deceased Susil Rout on account of which the accident took place as he was driving the car in a rash and negligent manner. In the absence of rebuttal evidence adduced on record by the Tribunal, the Tribunal should not have placed reliance on the charge-sheet- Exh 1 in which the deceased driver was mentioned as an accused and on his death; his name was deleted from the charge sheet. The Tribunal has referred to certain stray answers elicited from the evidence of PW.2 and PW3 in their cross-examination and placed reliance on them to record the finding on issue No. 1. For the aforesaid reasons, the findings and reasons recorded by the Tribunal on the contentious issue No. 1 holding that there is contributory negligence on the part of the deceased driver in the absence of legal evidence adduced by the Insurance Company to prove the plea taken by it that accident did not take place on account of rash and negligent driving of the truck driver is erroneous in law."” 8 MAC No. 418 of 2022 7. Coming to the facts of the present case in light of principle of law laid down in the aforesaid decisions, it is quite vivid that in the instant case, the Insurance Company has not taken express plea of contributory negligence. In the written statement it has only stated that since it is case of collusion of two vehicles, deceased Meghraj Patel is also responsible for the accident. However, the Insurance Company for the reasons best known to them, did not choose to lead any evidence in this regard. Since the Insurance Company has failed to plead and prove the contributory negligence on the part of the deceased, the finding recorded by the Claims Tribunal is correct finding of fact which is based on evidence available on record and the same is neither perverse nor contrary to the record and I hereby affirm the said finding of the Claims Tribunal. 8. In view of the aforesaid discussion and analysis, I do not find any merit in the instant appeal, accordingly the appeal deserves to be and is hereby dismissed. No order as to cost(s). Ankit Sd/- (Sanjay K. Agrawal) Judge
Arguments
1. Hariram Patel S/o Bharat Lal Patel, Aged About 64 Years; 2. Smt. Fagani Bai Patel W/o Hariram Patel, Aged About 52 Years; Both above R/o Ward No. 3 Marar Para, Village Sundarkera Tehsil Abhanpur, District Raipur Chhattisgarh. (claimants) 3. Gokul Prasad Sen, S/o Late Mansing Sen, Aged About 45 Years, R/o Village Madler P.S. Gobra Navapara District Raipur Chhattisgarh. 4. Kanhaiya Lal Sen, S/o Mansing Sen R/o House No. E-115 RDA Colony Boriyakhurd Raipur, Tehsil & District Raipur (Chhattisgarh). ... Respondents For Appellant :- Mr. B.N. Nande, Advocate. For Respondents No.1 & 2 :- Ms. Vidhi Matlani, Advocate, on behalf of Mr. Sanjay Agrawal, Advocate. For Respondents :- Mr. Aishwarya Diwan, Advocate, on No.3 & 4 behalf of Mr. Sachin Nidhi, Advocate. 2 MAC No. 418 of 2022 SB- Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 18.08.2025 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) has been preferred by the appellant/Insurance Company calling in question the legality, validity and correctness of the impugned award dated 07.01.2022 passed by the 3rd Additional Motor Accident Claims Tribunal, Raipur, Chhattisgarh (for brevity “Claims Tribunal”) in Claim Case No.50/2020 by which the application of the claimants for grant of compensation has been allowed and ₹11,20648/- along with interest has been awarded to the claimants/dependents of deceased Meghraj Patel by fastening the liability upon the appellant herein/Insurance Company. 2. Mr. B.N. Nande, learned counsel for the appellant, would submit that the Claims Tribunal is absolutely unjustified in granting compensation to the claimants by fastening the liability upon the Insurance Company as the deceased himself was contributory negligent while driving his motorcycle and due to which he suffered injuries and died, therefore, the Insurance Company should 3 MAC No. 418 of 2022 be exonerated from the liability to pay compensation to the claimants. 3. Ms. Vidhi Matlani, counsel for the claimants/respondents No.1 & 2, would oppose the prayer made by learned counsel for the appellant and support the impugned award passed by the Claims Tribunal. 4. Mr. Aishwarya Diwan, learned counsel for respondents No.3 & 4, would oppose the impugned award and submit that they would not be liable to pay the compensation to the claimants. 5. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records meticulously.