Bombay High Court: In an appeal against the decision of the Motor Accident Claims Tribunal (‘Tribunal’) considering 50% contributory negligence on the driver of the offending vehicle and 50% on the deceased, Shivkumar Dige, J. held that accident occurred due to sole negligence of the driver of the offending trailer, and accordingly enhanced the compensation amount.
Factual Background
The appellant – The New India Assurance Co Ltd challenged the judgment and order passed by the Tribunal which considered 50% contributory negligence on the driver of the offending vehicle and 50% contributory negligence on the deceased, while the claimant also appealed for enhancement of compensation.
It was contended on behalf of the Insurance Company that the accident occurred due to sole negligence of the deceased since he gave dash to the offending vehicle from back side. It further highlighted about driver of the offending vehicle not holding effective and valid driving licenses at the time of accident, a fact allegedly not considered by the Tribunal, and that the awarded amount under the non-pecuniary head was on higher side.
On the other hand, it was contended on behalf of the claimant that the offending vehicle trailer truck was 70 feet long not having parking light and brake light, whose driver suddenly stopped his trailer in the middle of the road, which led the deceased dash the trailer from its backside, sustained multiple injuries and died during treatment.
Court’s Analysis
The Court noted that to prove negligence of driver of offending trailer, the claimants relied on police papers, while the Insurance Company had not examined the driver of offending vehicle.
The Court further took note of the facts regarding the trailer not having brake lights and tail lamps as disclosed by the spot panchnama, the time of accident being 8:30 PM, and observed that “had there been the tail lamps or brake lights, the deceased could have noticed that trailer is going to stop.” The Court accepted that there was dark and that it was not possible for the deceased to see the status of the offending trailer without tail lights or brake lights. It further highlighted that the driver of the offending trailer did not step into witness box to prove the deceased’s negligence. The Court held driving a 70 feet long trailer without any brake light or tale lamps as a grievous negligence and held the Tribunal’s decision to fix 50% contributory negligence on the deceased as erroneous. The Court further held that accident occurred due to sole negligence of the driver of the offending trailer.
The Court further perused the evidence and highlighted that there was nothing on record to show that owner of the vehicle knew about driver of the offending vehicle not possessing valid and effective driving license, and the Tribunal relied on IFFCO Tokio General Insurance Co. Ltd. v. Geeta Devi, 2023 SCC OnLine SC 1398 to hold the Insurance Company liable to pay the compensation. The Court did not find any infirmity with the same since the RTO Officer was not examined by the Insurance Company.
Coming to the amount awarded by the Tribunal as Rs.2,25,000 under non-pecuniary head, the Court referred to Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 wherein it was held that each claimant is entitled for Rs.48,000/- as consortium amount, Rs.18,000/- for funeral expenses and Rs.18,000/- for loss of estate. The court explained that of the amount of Rs.1,80,000, if it deducted from the amount considered by the Tribunal it comes to Rs.45,000, regarded it as excess amount and found the Insurance Company entitled for this amount.
The Court accordingly enhanced the compensation amount of Rs.14,48,000@ 7.5% interest per annum and directed the Insurance Company to deposit enhanced amount after deducting Rs.45,000 from the same.
[The New India Assurance Co. Ltd. v. Mangal Ravindra Divate, 2024 SCC OnLine Bom 916, decided on 12-03-2024]
Advocates who appeared in this case:
For Appellant: Advocate Karishma Jhaveri; Navdeep Vora & Associates
For Respondent: Advocate Yogesh Pande
