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Monday, January 1, 2018

'No DL' ~ is an Offence but not 'Contributory negligence'

Election results in Gujarat and Himachal Pradesh have been declared – BJP is in power in both the States.  Interestingly, there are many who write that it is a victory for Congress in giving a ‘tough fight !’ – perhaps a party which has remained as opponents for 6 terms feels happy in continuing so, irrespective of the margins – and let the same continue to happen !

City roads are clogged with vehicles. When there are more vehicles, would there be accidents or does the traffic snarls in some ways contribute to reduction in accidents ?
Pic credit : Deccan Chronicle

Campaigning for the high-stakes RK Nagar bypoll scheduled on 21.12.2017  came to end on Tuesday throwing normalcy out of north Chennai. The last day saw a hyperactive campaign by the rebel AIADMK leader TTV Dhinakaran and the ruling party candidate E. Madhusudhanan, who crisscrossed RK Nagar in a two-wheeler. DMK's Marudhu Ganesh who started early in the day covered the maximum area and was flanked by the DMK leader M.K. Stalin. The high voltage campaign and the arrival of cadres from AIADMK and DMK chocked the congested parts of Washermenpet, Tondiarpet, Korukhupet and Kasimedu. As a ripple effect traffic was also affected in nearby Royapuram, Harbour and Thiruvottiyur constituencies till Tuesday night. RK Nagar, earlier represented by the late chief minister Ms J. Jayalalithaa,  saw the maximum fanfare by political parties on the last day of the campaign and poll observers too faced traffic woes till late evening.

Moving away from politics, in city roads and more on highways accidents occur frequently.  When accidents happen, one of the first questions people typically ask is: "Who was at fault?" ~ though not all would understand its legal implication, the fault would determine the negligence and subsequently liability.   Negligence is a term used to characterize conduct that creates an unreasonable risk of harm to others. If one is  negligent, and such negligence causes another person to become injured, then the negligent person is legally responsible for paying damages.

Then there is the concept of ‘contributory negligence’ is used to characterize conduct that creates an unreasonable risk to one's self. The idea is that an individual has a duty to act as a reasonable person. When a person does not act this way and injury occurs, that person may be held entirely or partially responsible for the resulting injury, even though another party was involved in the accident. The simplest example could be a person driving on the wrong side of the road or driving on the wrong side of a road where oneway restriction is in place – though the accident would not totally relieve the liability of the other vehicle involved, there would be contributory negligence, blamed to be fixed by the Court, depending on the circumstances.  Insurers often take a plea that since the victim also contributed to the accident, shall bear a proportion of the award.

Here is an interesting case decided by the Supreme Court of India, this week. The cause of action rose in June 2012, when a person riding a motor cycle met with an accident involving a mini-lorry.  The two wheeler rider, 26 years of age,  sufferedgrievous injuries. The medical certificate issued by the Hospital indicated  spinal injuries.  The injured  filed a claim for compensation before the Motor Accident Claims Tribunal, seeking compensation in the amount of Rupees 40 lakhs. The appellant examined a doctor who deposed that the extent of permanent physical disability of the spine was thirty four per cent. The tribunal did not accept that the disability was thirty four per cent, noting that the doctor in his cross examination admitted that he had not personally treated the appellant and that the medical evidence did not provide a cogent determination of the extent of disability. The Tribunal assessed the disability at ten per cent. The income of the appellant was taken at Rs 11,000 per month and a multiplier of seventeen was applied. The loss of income due to disability was computed at Rs 2,25,000. Medical expenses were computed at Rs 3,85,000. The Tribunal computed the total compensation (including conventional heads) at Rs 9 lakhs.

However, the tribunal held that the appellant was guilty of contributory negligence to the extent of forty per cent and hence granted sixty per cent of Rs 9 lakhs amounting to Rs 5.40 lakhs. The victim went on appeal and the High Court  enhanced the award of medical expenses by a further sum of Rs 1,77,775 on the basis of the bills produced by the appellant. On the aspect of contributory negligence, the High Court affirmed the finding of the tribunal.

The respondents, driver and owner of the van and their Insurers were held jointly and severally liable.  Not satisfied, the person agitated before the Apex Court contending that  both the tribunal and the High Court were manifestly in error in holding the appellant to be guilty of contributory negligence to the extent of forty per cent. It has been submitted that the tribunal as well as the High Court proceeded on the erroneous premise that since the appellant had failed to produce the driving licence, an adverse inference on the aspect of contributory negligence would have to be drawn.

As the driving licence, was not produced, this was held against the victim and Courts held ‘contributory negligence’.  However, in an earlier   judgment of Apex Court in Sudhir Kumar (supra) it was held as follows : “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 who was driving 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 fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence…

Supreme Court in the impugned case held that the matter might have been different if by reason of his rash and negligent driving, the accident had taken place.”  The Court stated that, we are of the view that the deduction of forty per cent which was made on the ground of contributory negligence is without any basis. Accordingly, we direct that the appellant shall be entitled to an additional amount of Rs 4.60 lakhs which was wrongly disallowed. This amount shall also carry interest at the rate of eight per cent per annum as awarded by the High Court, from the date of the petition until realization. The insurer shall deposit the amount before the tribunal within 3 months which shall be released to the appellant.  The Court allowed the appeal on the above terms. 

With regards – S. Sampathkumar
20th Dec 2017.

Citation :CIVIL APPEAL NO. 22966 OF 2017 [Arising out of SLP (C) No. 27398 of 2016] SRI DINESH KUMAR. J. @ DINESH J, .....APPELLANT Versus NATIONAL INSURANCE CO. LTD & ORS. .....

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