Holding

In the absence of any finding or evidence of contributory negligence by the car driver, the compensation cannot be reduced and full compensation must be awarded.

Summary

The case involved a fatal collision between a Maruti car and a truck, resulting in the death of the car driver. The claimants, dependents of the deceased, sought compensation, but the Motor Accident Claims Tribunal limited the award to 50% of the assessed amount on the basis of alleged contributory negligence by the car driver. The High Court affirmed this reduction, finding that both drivers were contributory negligent. On appeal, the Supreme Court examined the evidence, particularly the testimony of PW‑3, and found no specific finding or evidence of negligence on the part of the car driver. Applying the doctrine of res ipsa loquitur, the Court held that the negligence lay solely with the truck driver and that the insurer of the car was not liable for contributory negligence. Consequently, the Court rejected the 50% reduction and ordered full compensation to be paid, modifying the Tribunal and High Court awards.

Issues considered

Whether the Tribunal's reduction of compensation to 50% on the ground of contributory negligence is justified in the absence of an explicit finding.
Whether there is any evidence of contributory negligence on the part of the car driver.
Whether the burden of proving contributory negligence rests on the insurer.
Whether the doctrine of res ipsa loquitur applies to infer negligence of the truck driver.
Whether the claimants are entitled to full compensation under the Motor Vehicles Act.

Legislation cited

Motor Vehicles Act, 1988s. 173

Subjects

motor accidentcontributory negligenceres ipsa loquiturcompensationinsurance liabilityMotor Accident Claims TribunalSection 173burden of proof

Judgment

[2009] 2 S.C.R. 520

A USHA RAJKHOWA & ORS. ...\-
v.
PARAMOUNT INDUSTRIES & ORS.
Civil Appeal No.1088 of 2009
FEBRUARY 17, 2009
B
(S.B. SINHA AND V.S. SIRPURKAR, JJ)
Motor Accident: .,.
Fatal accident - Collision between car and truck - Death
c of two persons traveling in the car including its driver - Claim
petition by dependents of car driver-Amount of compensation
restricted by Tribunal for contributory negligence of car-Award
affirmed by High Court - HELD: There being no finding of
contributory negligence, compensation could not be restricted
on that count - There is no evidence to suggest any failure on .,
i-

D V• '
the part of car driver-Any breach on his part had to be proved
~
by insurer which failed to do so - Principle of res ipsa loquitor
applicable - Compensation as assessed directed to be
awarded in full - Burden of proof
I
E Maxim: •t
•·.
'Res ipsa loquitor' - Applicability of '

In a collision between a truck and a Maruti Car, the ~

person driving the car died. His dependents filed a claim -~c

F petition before the Motor Accidents Claims Tribunal, which
limited claimants' entitlement to 50% of the assessed claim
amount on the ground that there was contributory
negligence on the part of the deceased. In the appeal filed
· by the claimants, it was specifically pleaded before the
G High Court that the Tribunal did not record any finding of
contributory· negligence on the part of the car and, __.....
.,_
therefore, the claim could not have been reduced to 50%
applying the theory of contributory negligence. The High
Court affirmed the award observing that the Tribunal had
H 520
USHA RAJKHOWA & ORS. V. PARAMOUNT 521
INDUSTRIES & ORS.

held that the accident took place due to contributory A
->- negligence of drivers of both the vehicles. Aggrieved, the
claimants filed the appeal.
Allowing the appeal, the Court
HELD: 1.1 There is no specific finding to the effect B
that Maruti Car was guilty of contributory negligence. The
words "contributory negligence" nowhere appear in the
,>/ award passed by the Tribunal. There is only one stray
..,,
statement in the award, concerning the evidence of PW-3
to the effect that he failed to state which of the vehicles c
was actually at fault. The High Court also, referring to the
same sentence of PW-3, has erred in observing in its
judgment that the Tribunal has held that the accident took
place due to contributory negligence of the driver of the
truck and the Maruti Car. From a close scrutiny of the
D
.... statement of PW-3, it is clear that (1) the truck was coming
-(
in high speed; (2) it was the truck, which hit the car, and
not vice versa; and (3) the Maruti Car was going on its
own side. In the circumstances, applying the doctrine of
res ipsa Joguitor, it is clear that it was because of the
negligence on the part of the truck that the accident took E
place. [para 9] [526-8, C, D, E; 527-D, E, F, G]
,, Pramodkumar Rasikbhai Jhaveri Vs. Karmasey
Kunvargi Tak and Ors. 2002 (6) SCC 455; Astley Vs. Austrust
-+
Ltd. 1999 (73) ALJR 403 - relied on. F
1.2 There was absolutely no evidence to suggest that
there was any failure on the part of the car driver to take
any particular care or that he had breached his duty in
any manner. Such breach on his part had to be proved by
Insurance Company as it was its burden and for that, the G
~~ Punchanama of the spot showing tyre marks caused by
-{
brakes, the Panchanama of the damaged car and the
truck could have been brought on record. The Insurance
Company has obviously failed to discharge its burden.
[para 1O] [529-C, D] H
522 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 2. The Court was not addressed on the question of
quantum. The Tribunal, on the basis of monthly income
of the deceased and applying the multiplier formula
correctly assessed the compensation. However, in the
circumstances, there would be no question of restricting
B the claim to 50% of the assessed amount of
compensation, as the accident did not take place because
of the contributory negligence. The appellants would be
entitled to full compensation. The award of the Tribunal
and the judgment of the High Court are modified
c accordingly. [para 11-12] [529-E, F, G]
Case Law Reference
2002 (6) sec 455 relied on para.10
1999 (73) ALJR 403 relied on para 10 ...
}
D
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1088
of 2009
From the final Judgement and Order dated 7.2.2008 of
the Gauhati High Court in M.A.C. Appeal No. 66 of 2002.
E
Yashraj Singh Deora and T. Momo Singh (for Amit Pawan),
for the Appellants.
AK. Dr, S. Srivastava (for Debasis Misra) and M.K. Dua,
for the Respondent.
F The Judgement of the Court was delivered by .
V.S. SIRPURKAR, J.
1. Leave granted.
G 2. The appellants herein challenges the judgment passed
by the High Court, confirming the judgment of the Motor -""
Accidents Claim Tribunal (hereinafter referred to as 'the Tribunal' 1·
for short), whereby, the Tribunal limited the appellants' entitlement
to 50% of assessed claim amount and granted compensation
H of Rs.6,56,300/- on the ground that there was contributory
USHA RAJKHOWA & ORS. V. PARAMOUNT , 523
INDUSTRIES & ORS.[V.S. SIRPURKAR, J.]

negligence on the part of the driver of the Car, who lost his life in A
accident. He was the husband of appellant No. 1 and the father
of appellant No. 2. The Car was insured by respondent No. 3
Oriental Insurance Company Ltd.
3. One Jadhav Rajkhowa died in a motor vehicle accident
on 5.12.1998 at about 7 pm, when he had gone to Dergaon B
market from his house at Dadhara in his Maruti Car bearing
Registration No. WB/12/6287. On the way of Dergaon, one truck
bearing Registration No. NLA-241, coming from Jorhat side
towards Bokakhat in a rash and negligent manner, hit the Maruti
Car causing the instant death of said Jadhav Rajkhowa. C
Therefore, the claim petition was filed by his legal
representatives (the appellants herein). The Car was insured
with Oriental Insurance Company Ltd., while the offending truck
belonged to M/s. Paramount Industries, Jorhat (respondent No.
1 herein), which was insured with United India Insurance 0
Company Ltd., Golaghat Branch (respondent No. 2 herein).
4. The Oriental Insurance Company Ltd. in defence,
contended that Maruti Car was under the valid insurance
coverage with it and it was an Act Policy and the owner Jadhav
Rajkhowa had paid Rs.373/- by way of premium covering the E
third party risk and that he had paid no additional premium
covering his own life risk, even though there was provision under
separate insurance policy nor had he paid any additional
premium for driver and occupants. It was claimed by the Oriental
Insurance Company Ltd. that the owner, driver and occupants F
were never treated as third party and since it was an Act Policy,
the claimant would not be entitled to claim any compensation
from them. The owner of the truck had submitted that its truck
was under the valid insurance policy with United India Insurance
Company Ltd. and, therefore, the owner was not liable to pay
any compensation and compensation, if any, had to be paid by G
the Insurance Company. The United India Insurance Company
Ltd., however, submitted that the accident had taken place due
to rash and negligent driving on the part of the driver of the Maruti
Car and the valid insurance was in favour of the truck, as had
been admitted. H
524 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 5. In support of the claim, appellant/claimant Usha
Rajkhowa appeared as PW-1 and stated that her husband was
the driver of the Maruti Car at the time of its accident and he
was an employee of Oil India Ltd. She further stated that her
. husband was 30 years old at the time of accident and he had
B two children at thattime. She claimed the monthly pay of her
husband to be Rs.10,536/-. PW-2 Sarbeswar Bora was an
employee of Oil India Ltd. He stated that deceased Jadhav
Rajkhowa was Safety Inspector at the time of accident. The other
witness examined was Madhuriya Rajkhowa PW-3, who stated
c that he was travelling along with one Dhiren Hazarika in Maruti
Car and that the offending truck No. NLA-241 was coming from
the opposite direction in high speed and hit the car. It was
claimed by the witness that both Dhiren Hazarika, as also
Jadhav Rajkhowa had died on the spot, while he escaped the
death with certain grievous injuries. In his Cross Examination,
0
PW-3 stated that:- .
"As to which vehicle was at fault I can't say clearly. It is not
a fact that accident took place because of fault of Maruti
Car."
E He further stated:-
"Maruti Car was going on its own side. Truck hit the Maruti
Car."
On the basis of this-evidence, the Tribunal, firstly returned
F a finding that the Oriental Insurance Company Ltd. was not liable
to pay any compensation, since the policy covering the owner
of the Maruti Car, was not a comprehensive policy, but only an
Act Policy. Insofar as the assessment of compensation is
concerned on the basis of monthly salary and applying the
G multiplier formula, the amount was assessed at Rs.13,05,600/-
. Adding the funeral expenditure of Rs.2,000/- and loss of
consortium of Rs.5,000/-, the total amount was arrived at
Rs.13, 12,600/-. The Tribunal then came to the finding that this
amount was payable by United India Insurance Company Ltd.,
H which was the insurer of the truck No. NLA-241 to the extent of
USHA RAJKHOWA & ORS. V. PARAMOUNT 525
INDUSTRIES & ORS.[V.S. SIRPURKAR, J.]

50% only, while the balance amount is to be borne by the owner A
- t-
himself. The Tribunal, ultimately held that the claimant would be
entitled to compensation of Rs.6,56,300/- from United India
Insurance Company Ltd. with the accrued interest@ 9% p.a.
from the date of filing of the claim petition.
6. This award of the Tribunal was appealed against by the B
present appellants under Section 173 of the Motor Vehicles Act,
>! 1988. It was asserted in the appeal that the Tribunal in its award
...; should not have limited the liability to 50% by apportioning
between both the involved vehicles, as there were no pleadings
or evidence in support of such apportionment. It was specifically c
stated in the appeal memo that the Tribunal itself had not held
any contributory negligence on the part of Maruti Car nor had it
given any finding and thus, the claim could not have been
reduced to 50%, applying the theory of contributory negligence.
--1 The High Court firstly endorsed the finding of the Tribunal that D
-'t Oriental Insurance Company Ltd. was not liable to pay any
compensation, since the policy was an Act Policy. The High Court
then went into the exercise of appreciation of evidence and
observed that the Tribunal had held that the accident took place
due to contributory negligence of the drivers of the truck and the E
Maruti Car. Considering the evidence of PW-3, it referred to
the stray sentence, which we have quoted earlier, to the effect
/' that the witness was not able to say clearly as to which vehicle
4 was at fault. On this very basis, the High Court endorsed the so-
called finding of the Tribunal that it was an act of contriqutory F
negligence. The High Court, therefore, held both the vehicles
equally responsible for the accident and proceeded to dismiss
the appeal. It is this judgment, which has fallen for consideration
before us.

7. The Learned Counsel, appearing on behalf of the G
j_
~
appellants, firstly invited our attention to the award passed by
the Tribunal, as also to the evidence led on behalf of the
appellants and severely criticized the same. The Learned
Counsel also submitted that the approach of the Tribunal and
the High Court is erroneous and contrary to the evidence on H
526 SUPREME COURT REPORTS [2009] 2 S.C.R.

A record. The Learned Counsel for United Insurance Company
Ltd., however, supported the impugned judgment. *""
8. In spite of our minute scrutiny of the award, we have not
been ab.le to even find a mention of words "contributory
negligence" in the award passed by the Tribunal. There is, in
B fact, no finding given by the Tribunal as regards the contributory
negligence. The subject is discussed in paragraphs 10 and 11,
where we do not find any specific finding to the effect that Maruti ,..,
Car was guilty of the contributory negligence. It is only because ,._
the amount of compensation is restricted to the 50% of the
c assessed amount that we have to infer that the Tribunal had
given a finding of contributory negligence. Even at the cost of
repetition, we may say that the words "contributory negligence"
nowhere appear in the award passed by the Tribunal. There is
only one stray statement in the award, concerning the evidence
D of PW-3 Madhuriya Rajkhowa to the effect that he failed to state
t--
which of the vehicles was actually at fault. On this backdrop, ~
when we see the impugned judgment, very interestingly, the
judgment mentions in paragraph 9:-

"In the present case at hand, the learned Tribunal has held
E that the accident took place due to contributory negligence
of the driver of the truck and the Maruti Car."
We are afraid, such sentence is not to be found in the award
of the Tribunal. We do not know, as to where has this finding
'
+
F been found by the High Court in the award. The High Court then
referred to the evidence of PW-3 and referred to the same
sentence by PW-3. It is on the basis of this stray sentence that
the High Court chose to confirm the finding of the Tribunal (which
is not to be found) regarding the contributory negligence. Such
appreciation is clearly erroneous.
G
9. We must say that the criticism by the Learned Counsel ~ ..
·+-
for the appellants that the High Court, as well as, the Tribunal
have not applied their mind to the matter, is quite justified. We,
ourselves, have seen the evidence of PW-3. In the Examination-
H in-Chief, the witness very specifically asserted that the truck was
USHA RAJKHOWA & ORS. V. PARAMOUNT 527
INDUSTRIES & ORS.[V.S. SIRPURKAR, J.]

--f coming from the opposite direction in a high speed from Jorhat A
side and it hit the Car, as a result of which Shri Jadhav Rajkhowa
and Shri Dhiren Hazarika died, while he had received injuries.
He was undoubtedly right in saying that he could not say clearly
as to which vehicle was at fault, however, he was quick to deny
the suggestion thrown at him that the accident took place B
because of the fault of Maruti Car. He has very specifically
denied that suggestion in the following words:-
),{

~
"It is not a fact that accident took place because of fault of
Maruti Car."
c
As if all this was not sufficient, he then in his Cross-
Examination at the instance of Oriental Insurance Company Ltd.,
asserted that Maruti Car was going on its own side (when the
truck hit the Maruti Car). Now, the following factors are clear
. '
..!
from this evidence:-
1. The truck was coming in high speed .
D

2. It was t.ite truck, which hit the Car and not vice versa.
3. The Maruti Car was going on its own side.
E
It seems that the Tribunal, as well as, the High Court had
chosen to go by the inference drawn by PW-3 or at any rate, his
/' inability to fix the liability. It is not the judgment of the witness,
-~
which is decisive in the matter. In fact, the Tribunal, as well as,
the High Court should have framed ·their own opinion, instead
of going by the judgment or as the case may be, inference by F
PW-3.

Under such circumstances, applying the doctrine of res
ipsa loquitor, it is clear that it was because of the negligence on
the part of the truck that the accident took place. After all the hit
G
;_ given by the truck was so powerful that two persons in the Car
-~
died on the spot, while the third escaped with serious injuries.
When we see the award of the Tribunal, as also the appellate
judgment, they are astonishingly silent on these aspects. We
are, therefore, convinced that there was no question of any
H
528 SUPREME COURT REPORTS [2009] 2 S.C.R.

A contributory negligence on the part of the driver of the Maruti
Car and it was solely because of the negligence on the part of *-
the truck that the accident took place.

10. The question of contributory negligence on the part of
the driver in case of collision was considered by this Court in
B Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi
-:-'"; Tak and Ors. reported in 2002 (6) SCC 455. That was also a
case of collusion in between a Car and a truck. It was observed
~
in Para 8:-

c '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
D
"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."
E
This Court further relied on an observation of High Court
of Australia in Astley Vs. Austrust Ltd. reported in 1999 (73)
ALJR 403 to the following effect:- '\

"A finding of contributory negligence turns on a factual +
F 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
G 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. In some cases, the nature of the duty
owed may exculpate the plaintiff from a claim of contributory
H negligence; in other cases, the nature of the duty may
USHA RAJKHOWA & ORS. V. PARAMOUNT 529
INDUSTRIES & ORS.[V.S. SIRPURKAR, J.]

> ·J reduce the plaintiff's share of responsibility for the damage A
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
property. Contributory negligence focuses on the conduct
of the plaintiff. The duty owed by the defendant, although B
relevant, is one only of many factors that must be weighed
in determining whether the plaintiff has so conducted itself
....
-i
that it failed to take reasonable care for the safety of its
person or property."
Keeping these principles in mind, we find that there was c
absolutely no evidence to suggest that there was any failure on
the part of the Car driver to take any particular care or that he
had breached his duty in any manner. Such breach on his part
had to be proved by Insurance Company as it was its burden
~ and for that, the Punchanama of the spot, showing tyre marks D
_Jo
caused by brakes, the Panchanama of the damaged car and
the truck could have been brought on record. The Insurance
Company has obviously failed to discharge its burden. We,
therefore, respectfully follow the above mentioned judgment.
11. Under the circumstances, there would be no question E
of restricting the claim to the 50% of the assessed amount of
/ compensation.
f 12. The Learned Counsel for the respondents did not
address us on the question of quantum. We hold that the F
compensation was correctly assessed. We, however, would not
confirm the theory that the accident took place because of the
contributory negligence and would choose to award full
compensation to the appellants. The appeal is allowed. The
,__ award of the Tribunal and appellate judgment of the High Court
are modified to the extent we have indicated. The appeal stands
G
allowed with costs.

R.P. Appeal allowed.