M. Ramanan and Another vs F. Christy and Others

P. Devadass, J.—The husband and son of the deceased in a road accident are the appellants. On 6th July, 2005, at about 10 p.m., in

Kovundampalayam, on the Coimbatore-Mettupalayam Road, from south to north, one Poompavai had driven her scooter. At that time, from the

opposite side, the lorry belonging to the second respondent, insured with the 3rd respondent, came driven in a rash and negligent manner by the lst

respondent. The lorry hit against the scooter. In this, the scooterist died.

In MCOP. No. 1664 of 2005, before the Motor Accident Claims Tribunal (First Additional District Judge), Coimbatore, the husband and son

of the deceased have claimed compensation. The Tribunal taking into account her age, and her income, applying the multiplier 17, towards loss of

income arrived at Rs. 9,18,000/-. However, the Tribunal coming to the conclusion that since the scooterist was then not having driving licence she

had contributed to the accident deducted 50% of the amount from the said amount, and towards loss of income it had awarded only Rs.

4,59,000/-. Further, for loss of consortium, it had awarded Rs. 5,000/- to her husband and for loss of love and affection it had awarded Rs.

25,000/- to her son. Thus, totally Rs. 4,89,000/- was awarded.

According to the learned Counsel for the appellants, merely on account of the deceased not holding the driving licence it cannot be held that the

deceased had contributed to the accident. The respondents must establish by evidence that by her act she had contributed to the accident

notwithstanding her not holding the driving licence. In this respect Mr. K. Kalyanasundaram, learned Counsel for the appellant relied on Gujarat

State Transport Corporation Ltd. v. Thacker Narottam Kalyanji, LNIND 2000 Guj. 69 and Sudhir Kumar Rana v. Surinder Singh and Others,

(2008) 5 M.L.J. 1386.

On the other hand, Mr. D. Baskaran, learned Counsel for the Insurance Company/3rd respondent contended that in the accident two vehicles

are involved. The deceased had also contributed to the accident. It is also a case of composite negligence. In the said circumstances, the blame on

the part of the deceased also has to be apportioned in assessing the liability for payment of compensation.

Now, the question before us is whether in the facts and circumstances, the Tribunal is right in holding that on account of the deceased not

holding the driving licence she had contributed to the accident. In other words, whether by not possessing a driving licence, she was guilty of

contributory negligence and on that account alone 50% of the compensation amount is to be deducted.

In Sudhir Kumar Rana v. Surinder Singh and others (supra), the Hon''ble Supreme Court defined ''contributory negligence'' as under :

A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person,

when means and opportunity are afforded to do so. The question of contributory negligence would arise only when both parties are found to be

negligent.

The question is negligence for what? If the complainant must be guilty of an act or omission which materially contributed to the accident and

resulted in injury and damage, the concept of contributory negligence would apply.

In T.O. Anthony Vs. Karvarnan and Others, the Hon''ble Supreme Court explained ''composite negligence'' as under :

''Composite negligence'' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part

of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case,

each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of

proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor

is it necessary for the Court to determine the extent of liability of each wrong doer separately. On the other hand where a person suffers injury,

partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, than the negligence on the part

of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his

claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries

stands reduced in proportion to his contributory negligence.

There is distinction between ''contributory negligence'' and ''composite negligence''. The contributory negligence applies solely on the conduct of

the injured or the deceased. It means that there has been an act of omission on his part which has materially contributed to the damage. Where a

person is injured or his death occurs 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, but it is a case of ''composite negligence''. (See Pujamma and Others Vs. G. Rajendra Naidu

and Others,

In Gujarat State Transport Corporation Ltd. v. Thacker Narottam Kalyanji (supra), the offending bus has hit against the scooterist and it was

argued that the deceased, who had driven the scooter had then was not having driving licence and thus, he had contributed to the accident.

However, a Division Bench of the Gujarat High Court held that this factor alone cannot be sufficient for presuming that the deceased was driving

the vehicle negligently or rashly. Instances are not rare where a scooter driver fails to obtain licence or fails in getting driving licence renewed.

There is no evidence from the side of the appellant that Anil Kumar was driving the scooter and had no control over the same.

In Sudhir Kumar Rana v. Surinder Singh and others (supra), the claimant who had driven a two wheeler suffered injury in the accident due to

the rash and negligent driving of the truck driver. It was found that at the time of accident, the claimant was not holding driving licence. His claim

was opposed on the ground that at the time of accident he was not possessing the driving licence and thus, he must have been held to have

contributed to the accident. Repelling this contention, the Hon''ble Supreme Court held as under :

If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence

as regards the accident. It has been held by the Courts below that it was the driver of the mini-truck which was being driven rashly and negligently.

It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two wheeler

rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we failed to see as to how, only because he

was not having a licence, he would be held to be guilty of contributory negligence.

The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.

Thus, from the above, it is clear that to hold a person that he had contributed to the accident, it must be established by evidence that he had

committed a rash and negligent act and merely on account of his not having driving licence alone it cannot be held that he had contributed to the

accident. Even, at the time of accident if the claimant or the deceased did not possess driving licence, there must be a further finding that by his act

or omission, he had materially contributed to the accident.

Now, in the case before us, the Tribunal by the absence of production of the driving licence of the deceased, held that then the deceased was

not possessing the driving licence and thus, she has contributed to the accident. The Tribunal did not analyse the evidence and arrive at a finding

that the deceased had driven the scooter rashly and negligently and thus, she was guilty of contributory negligence.

In this case, the husband of the deceased deposed as P.W. 1. At the time of accident, the deceased had driven the scooter. P.W.1 had

followed her in another vehicle at a distance of 15 feet and had seen the actual accident. He only lodged the complaint. Based upon that police

registered Ext-P1 First Information Report. In the complaint, P.W.1 had mentioned that the lorry driver came driven the lorry in a rash and

negligent manner and hit against the scooter. After investigation, the police filed Ext. P2 Final Report that the accident was due to the rash and

negligent driving of the lorry driver and thus, he has committed an offence u/s 304-A IPC.

The Insurance Company, in its counter though pleaded that the deceased had contributed to the accident, there was no evidence on its side.

The lorry driver or any person, who had witnessed the accident had been examined to speak to the version of the manner of the accident pleaded

by the Insurance Company. Mere plea of the Insurance Company in its counter is not equivalent to proof. It must be not only pleaded but must be

proved by relevant and acceptable evidence. But, in this case, there is no evidence on the side of the Insurance Company that the deceased by her

act or omission had materially contributed to the accident.

On the other hand, there is positive oral and documentary evidence showing that the lorry driver alone is responsible for the road accident and

only because of his rash and negligent driving, the accident had taken place.

In the circumstances, the finding of the Tribunal that by the mere fact that the deceased did not hold the driving licence at the time of accident,

she was held to have contributed to the accident is unsustainable in law. The Tribunal is not right in fixing 50% of negligence or blame on the

deceased and deducting 50% of the amount from the compensation amount.

In the circumstances, the claimants are entitled to full compensation amount, namely, Rs. 9,18,000/- + Rs. 5,000/- + Rs. 25,000/-, totalling

Rs. 9,48,000/-. In the result this appeal is allowed. A total compensation of Rs. 9,48,000/- together with 9% interest per annum from the date of

petition till deposit is awarded. The 3rd respondent/Insurance Company shall deposit the entire compensation amount within four weeks from the

date of receipt of a copy of this judgment. The appellants shall share the compensation amount equally. The first appellant shall be paid his share of

compensation amount. The second appellant, on attaining majority, shall be paid his share of the amount. No costs.