Civil Appeal No. 6237 of 2011
Date of Judgement:
06 October 2021
Justice Hemant Gupta
Justice V Ramasubramanian
Appellant – Smt. K. Anusha
Respondent – Regional Manager, Shriram General Insurance Co. Ltd.
An action cannot be deemed as contributary negligence merely on the ground that he did not take the extraordinary step to prevent an accident.
- The appellant herein is the wife of the deceased, who succumbed to death after a collision with a lorry which was stopped suddenly without any indication. The appellant approached the tribunal and alleged that there was a negligent and rash driving leading to the death of her husband and claimed compensation for the same.
- The tribunal after considering all the facts and evidence came to a conclusion that there was negligence on both the driver of lorry and driver of the car. Hence, due to the presence of contributary negligence, out of the total compensation only 50% was declared as the compensation. Aggrieved this order, the appellant appealed before the High Court.
- The High Court upheld the findings of the tribunal relating to contributary negligence. It also increased the total compensation amount taking to consideration towards loss of love and affection and consortium with agreeing with 10% increase in income of the deceased on the ground that he would have had future increase in income as it was said that he had bright future. Aggrieved by this order, the appellant preferred appeal before this court.
- Whether the tribunal finding of contributory negligence is unjustified?
- Whether both the tribunal and the High Court underestimated the future prospects of the deceased to calculate the total compensation?
- The court did not agree with the tribunal and the High Court regarding contributory negligence. The court observed that the place where the lorry was parked was not the designated parking place and there was no indication of parking and there was sudden halt of the lorry.
- This court held that the views of the High Court that if the car driver would have followed traffic rules, the incident would have been avoided as there was no permissible evidence that the deceased has not followed the traffic rules. It also pointed out that the High Court also went on to observe that if the lorry was not wrongfully parked, there would have not been an accident.
- Therefore, the Supreme Court held that there was contradiction in High Court’s own order and its observation. This court referred to Swadling V. Cooper (1931) wherein it was held that an omission on the part of the victim to take extraordinary steps which in hindsight would have not been beneficial to the victim cannot be termed as contributary negligence.
- This court also did not accept 10% increase in income of the deceased, as he would have had a bright future, for arriving at the total compensation. The court cited National Insurance Company Limited V. Pranay Sethi (2017), wherein it was held that 50% increase should be considered towards future prospects. Hence, the appeal was allowed and the order and judgement of the High Court and tribunal was set aside.
Where if due to negligence of one party, the other party is affected which demands immediate and extraordinary actions, absence of the act prima facie does not constitute contributory negligence.
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1. Which Section in the Indian Penal Code provides punishment for causing death by negligence?