AI Structured Summary
Not yet generated for this judgment
Judgment
Bhawani singh, Chief justice.
This Letters Patent Appeal is directed against the Judgement of Single Judge in CIMA No. 49/1995 dated March 05,1998.
Briefly, the material facts of the case may be discussed hereafter.
On August 07,1991 Truck Numbers JKS4481 and JKQ4456 driven by Mohinder Singh and Kailash Chander Pradhan collided with each
other at a Causeway near village Diani, Pathankot Jammu National High Way at 10 AM. Allegation is that Kailash Chander Pradhan was driving
the offending Truck at high speed and in a negligent manner with the result that he could not control the same and served it to the wrong side
resulting in collusion with the Truck of the Claimant who was driving on the left side of the road at a low speed. In this accident, Mohinder Singh
suffered serious injuries. He was shifted to Government Hospital Samba and thereafter to Government Medical College, Ludhiana where he
regained consciousness after some time. He remained as an indoor patient for two and half month and was subjected to operation five times.
Compensation of Rs. 9,72,000/ was claimed and the Tribunal awarded Rs. 4,60,000.
Despite service, owner and the driver of the offending Vehicle remained absent and were proceeded exparte leaving the appellant to contest the
claim in the Tribunal. Defence taken is that the offending vehicle was being driven in contravention of the terms and conditions of the Insurance
Policy; therefore, it was not liable to indemnify the insured. It is also alleged that Claim Petition is barred by time and claim for compensation was
exaggerated.
On the pleadings of parties, following issues were framed:
Whether the petitioner was injured due to rash and negligent driving of the offending vehicle, driven by respondent No. 1? OPP
In case issue No. 1 is proved, what is the nature of disability and what amount of damages are payable to him and by whom ? OPP
Whether the offending vehicle was being plied in violation of the terms of the Insurance Policy ? OPR3.
Relief.
Issue No. 1 and 2 have been decided in favour of the claimant while issue No. 3 has been decided against the appellant. Compensation to the
extent of Rs. 4,60, OOO/ has been allowed by the Tribunal against issue No. 4.
Before the Single Judge, award has been assailed on two grounds namely, that the accident had occurred on account of the contributory
negligence of respondent1 and that the amount of compensation awarded in favour of respondent1 is exorbitant. After turning to the evidence and
appreciating the same, Single Judge confirmed the finding of Tribunal that there was absence of contributory negligence on the part of the claimant.
On the question relating to compensation, Single Judge has reduced the same to Rs. 4,10,893/ from 4,60,000/.
Shri R. K. Gupta, learned counsel for the appellant confined his submissions to the question of contributory negligence on the part of claimant.
Learned counsel contended that Tribunal committed great error in appreciating the evidence with respect to contributory negligence by claimant
resulting in the accident and the same error is repeated by the Single Judge. Shri B. S. Salathia, learned counsel for the claimant vehemently
supported the view taken by the Tribunal and confirmed by the Single Judge. Submission was that appellant did not raise defence of contributory
negligence before the Tribunal nor claimed on this question therefore, this plea cannot be raised. On merits, it was submitted that accident is clearly
attributed to rash and negligent driving by the driver of offending Vehicle, accident took place at the level of the causeway and not at the point
being suggested by the appellant Further, the driver could take the vehicle to his side instead of coming over to the way that was being used by the
claimant. Whether defence of contributory negligence could be raised in the absence of specific defence and issue framed thereon, Shri R. K.
Gupta placed strong reliance on decisions like M/s Krishna Goods Carriers (P) Ltd Vs. Union of India (1980 ACJ172), P. Rajeshwari and
Another Vs. Hotel Imperial and Another (1989 ACJ 454), Tirath Kaur Anand and others Vs. Rajasthan State Road Trans. Corpn. Jaipur and
others (1986 ACJ 1059), Rukmani Devi Vs. Rameshwar Datt and Another (1986 ACJ 1116 and Himachal Road Transport Corporation, Shimla
Vs.Sushila Devi and others (1986 ACJ 1125). In the First case, the Court said in para 26 that:
Counsel for the plaintiff raised a question of some subtlety. He said that on the question of contributory negligence no issue was raised and he
was taken by surprise when the suit was dismissed on the ground. In actions negligence, the contributory negligence of the plaintiff is capable of
being raised under the general issue of negligence. it is not possible to separate the two issues, contributory negligence of the plaintiff and the causa
causans of accident consisting in the negligence of the defendant. They seem to me in most cases to be inextricably bound up together. Take this
very case. The question for decision is whether it was the train's fault or man's fault ? What was the cause of accident ? Whose negligence was the
real or substantial cause of the accident ? As Lord Summer said, 'the inquiry is an investigation into responsibility1 British Columbia Electric Rly. V.
Loach ((1916) 1 A. C 719 at 728).
Further, the Court said in para 27 that:
The burden of proving contributory negligence is on the defendant. It does not rest on the shoulders of the plaintiff. In order to discharge the
burden of proof it is not necessary for the defendant to give evidence about such matters, because contributory negligence can be inferred from the
evidence adduced on the plaintiffs behalf or from the primary facts so found by the Court on a balance of probabilities. In the present case the
defendant raised allegations of contributory negligence. The general issue of negligence would embrace this aspect of the inquiry. Wakelin Vs.
London and South Eastern Railway ((1896)1 Q. B 189 at 194).
In the Second case, it is held in para 3 that: ""3. Even at the outset it has to be mentioned that in the instant case required materials for coming to the
conclusion regarding the liability for the accident were not placed before the Tribunal by either side. This does not mean that the Tribunal is bereft
of powers for getting at the truth of the claim as well as regarding the person at fault who drove the vehicle. In the instant case it is submitted on
behalf of the appellants herein that both the cars which are accused of having committed the collision belong to one and the same person viz. the
first respondent herein. But that does not mean that a finding to that effect can be given by the Tribunal. The Tribunal is obliged to find out from the
evidence available or to get at the evidence as provided under Section 165 of the Evidence Act or give further opportunity for either side to
produce necessary evidence, such as documents that were prepared during the time of investigation in the instant case and come to a conclusion
regarding the liability. It is common ground that prosecution was launched against the owner of the vehicle bearing registration No. MSM 3499.
Prima facie it is the driver of this vehicle that could be pointed out and held as the person responsible for the accident. Whether the accident was
the one which was exclusively falling on the shoulders of the driver of the said vehicle or contributed to a certain extent by the deceased himself
darting at the place of occurrence at the critical point of time has to betaken into consideration also by the Tribunal, because contributory
negligence whether pleaded or not is the one that has to taken note of by the Tribunal suo motu and a finding regarding that aspect has to be given.
In view of the above fact that all the above features are not properly appreciated and there is no proper exercise of judicial discretion by the
Tribunal by applying the Provisions of the Evidence Act or the procedural law of the land, this court has no other alternative than to set aside the
award of the Tribunal under appeal and remit the matter back to the Tribunal for fresh disposal of the claims in accordance with law and in the light
of the observations made above. It is needless to say that only after the ascertainment of the liability of the accident, quantum of compensation can
be ascertained.
There is substance in the contention raised by Shri R. K. Gupta, therefore, we hold that court can competently examine the application of
contributory negligence in a given case on the basis of evidence before it even if this defence is not taken by the other side. With this background,
we examine the impugned Judgement of Single Judge and the award by the Tribunal apart from the other material available on the case files.
Claimant has clearly stated that accident had taken place. According to him, offending vehicle was beingdriven at an excessive speed and it
collided with that part of his truck where driver seat is located. This means, it was nor a head on collision. The offending vehicle with headlights on
was seen by the Claimant from a distance of 200 meters. Evidence suggests that accident took place at the level of the causeway. Same is the
deposition of Tilak Chand, who also says that the offending vehicle was being driven at a very high speed with the result that the driver could not
control it. It went on the wrong side and caused the collision with the truck of the Claimant. This happens of because of rash and negligent act of
the driver of the offending vehicle. Claimant was driving his truck at a normal speed on the left side of the pacca road. Surjeet Singh also states that
offending truck hit the truck of claimant when it came to the wrong side. Perusal of impugned Judgement and award amply demonstrate that
evidence as to the cause of accident has been attended to carefully and appreciated properly before finding has gone against the driver of offending
vehicle. We confirm this finding. Even otherwise, there is no justification to differ with the concurrent finding based on appreciation of facts by two
authorities below. The contention of Shri R. K. Gupta has no substance and we do not find any merit therein.
No other point was urged.
What emerges out of aforesaid discussion is that there is no merit in this appeal and the same is dismissed. Parties are, however, left to suffer
their respective costs.