Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak & Ors  Insc 332 (5 August 2002)
Banerjee & K.G. Balakrishnan. K.G. Balakrishnan, J.
claimant in a motor accident claim case is the appellant before us.
appellant was driving a Fiat car through National Highway No. 8 on 7th
February, 1976, on his way to Surat from Ahmedabad and when the car reached
near Ankleshwar, a truck bearing registration no. GTC 4735 came from the
opposite side at excessive speed and the car driven by the appellant hit the
right side of the said truck and collided with the rear right-side wheels of
the truck. The truck, which was loaded with goods, toppled over to its right
side and came to a halt at a distance of about 20 feet. As a result, the
appellant, his wife and another friend, who were occupants of the car,
sustained injuries. They preferred claim petitions before the Motor Accidents
Claims Tribunal. The three claim petitions were tried jointly and the claims
preferred were allowed. In this appeal, we are only concerned with the claim
petition preferred by the appellant.
appellant had claimed a total compensation of Rs. 9,98,500 and the entire claim
was allowed. Against that award, the respondent Insurance Company filed an
appeal before the High Court of Gujarat at Ahmedabad and in the appeal, it was
held that the appellant was entitled to get compensation to the extent of Rs. 4,72,600.
However, the High Court held that there was contributory negligence on the part
of the appellant to the extent of 30% and proportionate deduction was made from
the total compensation. Aggrieved by the same, the present appeal is filed.
heard Mr. Sunil Dogra, learned Counsel on behalf of the appellant and Mr. K.L. Nandwani,
learned Counsel on behalf of the respondents.
regards the amount of compensation due to the appellant, the High Court held
that the Tribunal had seriously erred in fixing the total compensation.
High court held that the award of Rs. 2,36,099 towards the actual loss of
income and another sum of Rs. 4,71,510 towards the loss of future income and Rs.
2,32,381 towards loss of expectancy of profit were on the higher side and that
the appellant was entitled to Rs. 20,500 for actual amount of loss of income
and another Rs. 3,93,600 towards loss of future income. The learned Counsel for
the appellant strenuously urged before us that the calculation made by the High
Court is incorrect and the compensation amount should not have been reduced by
the Impugned Judgment whereas the learned Counsel appearing on behalf of the
Insurance Company supported the Judgment and contended that the award of a sum
of Rs. 3,93,600 towards the loss of future income is not actually due to the
appellant as there was only a partial disability suffered by him and the
appellant has been continuing with his business and there was no loss of future
earning on this account.
High Court elaborately considered the matter and noticed that the appellant was
under treatment for a period of 5 months and thereafter he started attending his
business and had also gone abroad for business purposes. The appellant was
doing the business of a commission agent. The Tribunal had earlier held that
there was a loss of income for a period of 34 months and the monthly income was
fixed at Rs. 9000 p.m. The High Court on the basis of average post-accident
monthly income, fixed the income at Rs. 4,100 p.m. and held that the appellant
was entitled to Rs. 20,500 as actual loss of earning for a period of 5 months.
regards the future loss of income, the Tribunal had made an award of Rs. 4,71,520,
whereas the High Court fixed the future loss at Rs. 3,93,600.
High Court has given valid reasons for reduction of the amount. The High Court
held that the monthly income of the appellant would have been Rs. 4,100 p.m.
and by applying the multiplier of 8 years, the claim should be Rs.3,93,600
towards the future loss of income. We do not think that the multiplier adopted
by the High Court is wrong or the amount of compensation granted for the future
loss of income is inadequate. We also do not think that the High Court erred in
fixing the quantum of compensation.
next question that arises for consideration is whether the High Court was
justified in holding that there was contributory negligence on the part of the
appellant. The Tribunal found that the accident happened due to the negligence
of the truck driver but the High Court, by the impugned Judgment held that the
appellant was also partly negligent and thus, there was contributory negligence
on his part and the total compensation payable to the appellant was reduced.
High Court found that there was contributory negligence on the part of the
appellant for two reasons. Firstly, the appellant who was driving the car did
not slow down his vehicle when he saw that the truck coming at a high speed
from the opposite direction was trying to overtake another car ahead of the
truck and, secondly, the High Court found that there was a three feet width of
the road on the left side of the car of the appellant and on seeing the
oncoming truck, the appellant could have swerved his vehicle to the left side.
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." 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 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 Austrust Ltd. (1999) 73
ALJR 403 is worthy of quoting:
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.
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
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." 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
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." It is
important to note that the respondents did not contend before the Tribunal that
there was contributory negligence on the part of the appellant, the driver of
the car. There was not even an allegation in the written statement filed by the
respondents that the car driver was negligent and the accident occurred as
result of partial negligence of the car driver. During the trial of the case,
there was an attempt on the part of the respondents to contend that the driver
of the car was trying to overtake a truck which was going ahead of the car. The
appellant-car driver had also pleaded that the truck driven by the second
respondent was trying to overtake another car, which was going ahead of the
truck. But these circumstances are not proved by satisfactory evidence. One
expert had also given evidence in this case but he had not seen the accident
spot. His opinion was based on the observation of the damaged parts of the two
vehicles. The total width of the tarred portion of the road was 22 feet and
there were mud shoulders on either side having a width of three feet. It is
proved by satisfactory evidence that the offending truck had come to the
central portion of the road and there was only a three feet width of the road
on the left side of the car driven by the appellant. In this factual situation,
the High Court was not justified in holding that there was contributory
negligence on the part of the appellant. It would, if at all, only prove that
the appellant had not shown extraordinary precaution. The truck driven by the
second respondent almost came to the center of the road and the appellant must
have been put in a dilemma and in the agony of that moment, the appellant's
failure to swerve to the extreme left of the road did not amount to negligence.
Thus, there was no contributory negligence on his part especially when the
second respondent, the truck driver had no case that the appellant was
we are of the view that the factual situation proved in this case does not show
that the appellant was contributorily negligent in causing the accident. In the
result, we allow the appeal partly and hold that the appellant is entitled to
get the full amount, namely, Rs. 4,72,600, fixed by the High Court as total
compensation payable to the appellant. There will be no order as to costs.