Nafr High Court
Case Details
1 2025:CGHC:44978 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1171 of 2022 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.09.04 14:12:11 +0530 1 - Awdhesh Jaiswal, S/o. Ramcharit Jaiswal, Aged About 52 Years, (Father Of Deceased) R/o. Village Goverdhanpur, Tahsil Wadrafnagar, District Balrampur, Chhattisgarh. Present Working Address Village Dharmpur, Tahsil Pratappur, District Surajpur, Chhattisgarh. 2 - Gouri Jaiswal, W/o. Awdhesh Jaiswal, Aged About 48 Years, (Mother Of Deceased) R/o. Village Goverdhanpur, Tahsil Wadrafnagar, District Balrampur, Chhattisgarh. Present Working Address Village Dharmpur, Tahsil Pratappur, District Surajpur Chhattisgarh. 3 - Kumar Trisha Jaiswal, D/o. Sachin @ Sachidanand, Aged About 6 Years (Daughter Of Deceased), Through Legal Guardian Awdhesh Jaiswal, (Grand Father Of Appellant No. 3) R/o. Village Goverdhanpur Tahsil Wadrafnagar, District Balrampur, Chhattisgarh. Present Working Address Village Dharmpur, Tahsil Pratappur, District Surajpur, Chhattisgarh. versus ... Appellants 1 - Rajendra Prasad (Driver And Owner Of Offending Vehicle) S/o.
Legal Reasoning
Shri Dwarika Prasad Dhobi, R/o. Village Syahi, Post Karamdiha, Tahsil Wadrafangar, District : Balrampur, Chhattisgarh 2 2 - Branch Mangar, The Oriental Insurance Company Limited, (Insurer) Branch Office, Amedkar Chowk, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 3 - Priti Jaiswal, Ex Wife Of Sachin Jaiswal, Remarriage Wife Of Chandra Shekhar @ Bunty Choudhary, R/o. Village Keshavpur, Post Ambikapur, District : Surguja (Ambikapur), Chhattisgarh ... Respondents For Appellants : Mr. D.N. Prajapati, Advocate. For Respondent No.1 : Ms. Kusum Lalchandani, Advocate on behalf of Mr. A.K.Yadav, Advocate. For Respondents No.2. : Mr. Sumit Singh, Advocate along-with Ms. Vaishali Jeswani, Advocate. SB- Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 03.09.2025 1. The appellants/claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) calling in question the legality, validity and correctness of the impugned award dated 17.08.2022 passed by the Motor Accident Claims Tribunal, Pratappur, District Surajpur (for brevity “Claims Tribunal”) in Claim Case No.51/2020 by which the application of the claimants for grant of compensation has been allowed and the deceased has been 3 held to be liable for contributory negligence and 50% compensation has been rejected for contributory negligence of the deceased Sachin @ Sachidanand. 2. The learned Claims Tribunal after appreciation of oral and documentary evidence on record has assessed the compensation of Rs.12,99,600/- but holding that the deceased was guilty of contributory negligence on the basis of statement of eye-witness Deenanath (AW-2) deducted 50% amount of compensation, which is sought to be challenged by this appeal. 3. Mr. D.N. Prajapati, learned counsel for the appellants/ claimants, would submit that only on the basis of the stray statement of Deenanath (PW-1), the learned Claims Tribunal could not have held that the deceased was guilty of contributory negligence in absence of evidence led by the Insurance Company who has taken the plea of contributory negligence. 4. Ms. Kusum Lalchandani, learned counsel appearing for the respondent No.1 and Mr. Sumit Singh along-with Ms. Vaishali Jeswani, learned counsels appearing for the respondent No.2 would support the impugned award passed by the learned Claims Tribunal and submit that the eye-witness Deenanath 4 clearly stated that the accident occurred on account of negligence of the deceased and, as such, the appeal preferred by the appellants is liable to be dismissed. 5. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records meticulously. 6. The insurance company has taken a specific plea that the deceased was contributory negligent in driving the vehicle in paragraph 8 of their written statement, but surprisingly, no evidence has been led by the insurance company to establish the plea of contributory negligence. However, the Claims Tribunal, after relying upon the statement of Deenanath (AW- 2) wherein he has admitted in his cross-examination that deceased Sachin was driving the motorcycle and accident occurred on account of his negligence, proceeded to deduct 50% of the award amount towards contributory negligence. 7. In this regard, 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 1 2014 (1) C.G.L.J. 270 [MAC No.653/2012; decided on 8.11.2013 5 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 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 2 , the Bombay Vs. Shri Laxman Iyer and another Supreme Court held as under:– 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 2 (2003) 8 SCC 731 6 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 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 Pramodkumar Rasikbhai Jhaveri 3 , the Vs. Karmasey Kunvargi Tak and others Supreme Court held as under :– 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 3 (2002) 6 SCC 455 7 relevant in the case of plaintiff's contributory 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 8 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. Coming to the facts of the present case in light of principle of law laid down in the aforesaid decision, it is quite vivid that in 9 the instant case, though the Insurance Company has taken the plea of contributory negligence on the part of the deceased, but no evidence has been led by them in this regard to establish the fact that the accident occurred because of contributory negligence of the deceased. However, the Claims Tribunal picked up one line from the statement of Deenanath (AW-2) and held the plea of contributory negligence to be established against the deceased, but since the insurance company has not led any evidence to prove the plea of contributory negligence, mere reliance upon the stray statement of Deenanath (AW-2) would not be sufficient to hold the deceased guilty of contributory negligence. In that view of the matter, the finding recorded by the Claims Tribunal with regard to plea of contributory negligence on the part of the deceased is hereby set aside and the appellants/ claimants are held entitled to full compensation to the extent of Rs. 12,99,600/- along-with interest. Rest of the conditions of the impugned award shall remain intact. 9. Accordingly, the appeal is allowed to the extent indicated herein-above. No cost(s). Ashok Sd/- (Sanjay K. Agrawal) Judge