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Judgment
Heard Mr. C. Goswami, learned counsel representing the appellant. Also heard Ms. R.D. Mazumdar, learned counsel appearing for the Respondent No.4 i.e. the National Insurance Co. Ltd.
This is an appeal under Section 173 of the Motor Vehicles Act, 1988 challenging the judgment and order dated 06.05.2014 passed by the learned Addl. District Judge (FTC), Darrang, Mangaldai in MAC Case No.189/2011.
The factual matrix leading to filing of this appeal lies within a short compass. On 14.02.2010 at about 12.40 P.M., the appellant was driving a Maruti Car bearing Registration No.AS-01-AB-9837. When he reached Aulachowka on the National Highway No.52, the incoming Indica Car bearing Registration No.AS-01-AJ-7741 had dashed against the car of the appellant. It was a head-on-collision between the two vehicles and the appellant sustained injuries.
After hearing both sides and after going through the evidence adduced by the parties, the Tribunal held that it was a head-on-collision between two vehicles and therefore, the Insurance Company shall have to pay 50% of the total awarded amount of ₹4,60,000/-. In fact, the Insurance Company was directed to pay half of the said amount, which stood at ₹2,30,000/-.
Mr. Goswami has submitted that every head-on-collision between two vehicles, does not mean that both of them are equally responsible for the accident.
Mr. Goswami has relied upon a judgment of the Hon’ble Supreme Court that was delivered in Municipal Corpn., Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731. Paragraph 6 of the said judgment is quoted as under:
“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 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 of 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 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 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.).”
Per contra, Ms. Mazumdar has relied upon a judgment of the Hon’ble Supreme Court that was delivered in Bijay Kumar Dugar v. Bidyadhar Dutta & Ors., reported in (2006) 3 SCC 242. In paragraph 12 of the said judgment, it is held that when the vehicles had a head-on-collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident.
I have considered the submissions made by the learned counsels of both sides.
This Court is of the opinion that the learned Tribunal had correctly held that both the vehicles were equally responsible for the accident and correctly directed the Insurance Company to pay 50% of the total awarded amount.
Under the aforesaid circumstances, this Court is of the opinion that this appeal has no merit at all and stands dismissed accordingly.
Send back the T.C.R.