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Judgment
IA No. 7422 of 2025, an application filed under Order 41 Rule 14(4) of CPC on behalf of appellants seeking dispensation of service upon respondents No.1 and 2, is taken up.
For the reasons stated in the application, the same is considered and allowed. Accordingly, service of notice upon respondent Nos. 1 and 2 is hereby dispensed with.
This miscellaneous appeal has been filed by the appellants/claimants under Section 173(1) of the Motor Vehicles Act, 1988, being aggrieved by the Award dated 08.12.2023 passed by the 10th Motor Accident Claims Tribunal, District Gwalior (M.P.) (hereinafter referred to as “the Claims Tribunal”) in Claim Case No.883/2021, on the grounds of inadequacy of compensation and seeking enhancement thereof, as well as being aggrieved by the finding recorded by the Claims Tribunal holding the deceased to be 50% contributorily negligent in the accident.
Brief facts of the case are that on 11.06.2021 at about 8:15 p.m., Suresh Kumar Patel was proceeding slowly on his motorcycle bearing registration No. MP-07/NL-9478 from Dabra to Gwalior, while Damodar Prasad was following him on another motorcycle. When they reached Bharatri Bridge within the jurisdiction of Police Station Antari, Non-claimant No.2, while driving a container bearing registration No. HR-55/AC-4176 in a rash and negligent manner, came from the Dabra side and hit the motorcycle of the deceased from behind. As a result, Suresh Kumar Patel fell on the road, sustained severe head injuries, and died on the spot. After the accident, the driver of the offending vehicle abandoned the container at the spot and fled away. The deceased was taken by ambulance to the mortuary of J.A. Hospital, Gwalior. On the report lodged by eyewitness Damodar Prasad, Crime No.132/2021 was registered at Police Station Antari. After investigation, the police filed a charge-sheet against the driver of the offending vehicle before the competent Court.
The claimants filed a claim petition before the Claims Tribunal seeking compensation. Non-claimants No.1 and 3 filed their reply denying the averments made in the claim petition. Non-claimant No.2, despite service of notice, did not appear before the Claims Tribunal and was proceeded ex parte. The Claims Tribunal framed issues and, after recording evidence, awarded compensation of Rs.24,37,075/- in favour of the claimants and held that the deceased was 50% contributorily negligent in the alleged accident.
Being aggrieved by the impugned award, the appellants/claimants have preferred this appeal contending that the award passed by the Claims Tribunal is contrary to law, evidence on record, and settled principles governing motor accident compensation, and therefore deserves modification. It is contended that the finding of the Tribunal attributing 50% contributory negligence to the deceased is wholly erroneous, as the oral and documentary evidence on record clearly establishes that the accident occurred solely due to the rash and negligent driving of Respondent No.2, who hit the deceased from behind. It is further submitted that no rebuttal evidence was produced by the respondents and neither the driver nor the owner of the offending vehicle was examined. It is also contended that the Tribunal erred in assessing the monthly income of the deceased on the lower side despite accepting that he was serving as an Agriculture Development Officer and was drawing a monthly salary of Rs.78,258/-. The determination of age as 61 years is also assailed on the ground that the deceased was 60 years old and, therefore, a higher multiplier ought to have been applied along with addition towards future prospects. It is further submitted that the compensation awarded under the conventional heads is inadequate and contrary to settled law. On these grounds, enhancement of compensation is sought, as well as dismissal of the finding of contributory negligence.
7 . Per contra, learned counsel for the Insurance Company supported the impugned award and prayed for dismissal of the appeal.
Heard learned counsel for the parties and perused the record of the Claims Tribunal.
Upon perusal of the evidence and documents available on record, it is evident that the deceased was riding his motorcycle at a slow and cautious speed, whereas the offending container was being driven at a high speed; however, the driver of the container suddenly applied brakes without any indication, due to which the deceased’s motorcycle collided with the rear side of the container, causing him to fall on the road and sustain fatal injuries.
It is settled principle of law that contributory negligence arises where there has been some act or omission on the claimant's part which has materially contributed to the damage caused. Negligence ordinarily 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.
In K. Anusha and Others Vs. Regional Manager, Shriram General Insurance Co. Ltd. reported in 2022 ACJ 721, the Hon’ble Supreme Court held that for establishing contributory negligence, a specific act or omission materially contributing to the accident must be attributed to the person against whom such negligence is alleged. Similar principles were reiterated i n Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak , 2002 ACJ 1720 (SC) wherein this Court quoted a decision of the High Court of Australia in Astley v. Austrust Ltd., (1999) 73 ALJR 403, to hold that "...where, by his negligence, 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 difficulty". In fact, the statement of law in Swadling v. Cooper, (1931) AC 1, that "...the mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence...", was also quoted with approval by this Court.
In the present case, the respondents failed to adduce any evidence of the driver of the offending vehicle, nor was any material produced to establish negligence on the part of the deceased. From the cross-examination of Damodar Prasad (AW-4), it is evident that the deceased was driving at a speed of 30-40 km per hour, whereas the offending container was being driven at a speed of 70-80 km per hour. There is no evidence to show any act or omission on the part of the deceased which materially contributed to the accident.
Thus, the respondents have failed to establish that the deceased was blameworthy in any manner or that he contributed to the accident. The finding of contributory negligence recorded by the Claims Tribunal is based merely on assumptions and presumptions without any cogent or substantive evidence and is, therefore, unsustainable in the eyes of law.
So far as the prayer of the appellants for enhancement of compensation is concerned, upon perusal of paragraphs 30 to 38 of the impugned award, this Court finds that the Claims Tribunal has correctly assessed the income of the deceased and has awarded compensation under various heads in accordance with settled principles of law. No case for interference in the quantum of compensation is made out.
In view of the finding recorded by this Court that the deceased was not guilty of any contributory negligence and the finding of the Claims Tribunal holding the deceased to be 50% contributorily negligent having been set aside, the claimants are held entitled to the entire compensation amount as determined by the Claims Tribunal. Therefore, on the basis of the above discussion, the total compensation payable in the present case is determined at Rs.48,74,150/- (Rupees Forty-Eight Lakh Seventy-Four Thousand One Hundred Fifty only), and the claimants shall be entitled to receive the full amount of the said compensation.
The remaining part of the impugned award stands affirmed and remains intact.