Summary
A pillion rider who lost both legs in a 1999 collision between a scooter and a trailer was awarded Rs 7,50,000 with 40% attributed to the scooter driver's contributory negligence. Held: the FIR, chargesheet and the unchallenged testimony of the claimant established the trailer driver's negligence on a preponderance of probabilities; a learner's licence or a collision at the tail-end of a long trailer does not by itself prove negligence, and the High Court could not rely on an untested written statement. The finding of contributory negligence was set aside and compensation enhanced to the full claim of Rs 16,00,000 with 7% interest from the date of the award, payable by the insurer of the trailer.
Issues
- Whether the Tribunal and the High Court were justified in finding contributory negligence on the part of the scooter driver on the basis that he held only a learner's licence and that the collision occurred at the tail-end of the trailer.
- Whether the High Court could rely on the written statement of the scooter owner/driver, who was never examined, to hold that the claimant had forced him to carry a pillion rider.
- Whether compensation could be enhanced, and recovered wholly from the insurer of the trailer, when the owners of the trailer and the scooter had been deleted from the party array before the High Court.
- What amount of compensation was just for amputation of both legs, including prosthetics and attendant costs.
Provisions considered
- Section 166, Motor Vehicles Act, 1988In a claim for compensation under Section 166 the proceeding is not adversarial and tortious liability is decided on a preponderance of probabilities; applying that standard the Court found the negligence lay with the trailer driver, who had been chargesheeted, and awarded just compensation beyond the heads as pleaded, since the claim petition does not bind the Court. (¶¶ 2, 11, 12, 16)
- Section 140, Motor Vehicles Act, 1988The sum of Rs 25,000 already received as no-fault compensation under Section 140 was directed to be deducted from the amount awarded. (¶ 17)
Held
- In a motor accident claim there is no adversarial litigation and the standard of proof is the preponderance of probabilities. The FIR and the chargesheet which found the trailer driver negligent, together with the claimant's unshaken deposition, prima facie established negligence on the trailer driver; the insurer had not even pleaded contributory negligence of the scooter driver in its written statement. The Tribunal's inference that the scooter driver must have been incautious because the collision was at the tail-end of the trailer was a surmise, and a finding that a driver was not cautious is not a finding of negligence. (¶¶ 8, 9, 11, 12)
- The High Court ought not to have given credence to the scooter owner/driver's written statement that the claimant, a Block Development Officer, had misused his authority to compel him to carry a pillion rider despite holding only a learner's licence, because that person never examined himself and the claimant had no opportunity to test the version in cross-examination. (¶¶ 10, 13)
- Driving without a valid licence is an offence but does not by itself lead to a finding of negligence in relation to the accident (Sudhir Kumar Rana followed). The mere fact that the scooter driver held a learner's licence, or that the collision occurred at the tail-end of a long trailer when he had better visibility, cannot sustain a finding of contributory negligence; negligence is a question of fact to be proved and not presumed. (¶¶ 13, 14)
- Absolving the scooter owner/driver of contributory negligence does not prejudice him and is valid even though he was not a party to the appeals; the claimant is entitled to recover the entire compensation from the insurer of the trailer, the offending vehicle, which was covered by a valid policy and which had not appealed against the award. (¶¶ 7, 14)
- Confirmation of the claimant as an IAS officer despite the disability may defeat a claim for loss of income, but compensation for permanent disablement must still be assessed since the loss of both legs necessarily involves loss of amenities of life. Separate amounts cannot be awarded for permanent disability, physical discomfort and loss of amenities; Rs 5,00,000 was awarded under these heads together, Rs 9,00,000 on a composite basis for medical treatment and artificial limbs having regard to the cost and periodic replacement of prosthetics, and Rs 2,00,000 for an attendant, making Rs 16,00,000 in all, the Court noting that the award relates to a 1999 accident and that the delay is compensated by interest. (¶¶ 15, 16)
Result
Appeal allowed. Finding of contributory negligence set aside; compensation enhanced to Rs 16,00,000, less Rs 25,000 received under Section 140, with 7% simple interest per annum from the date of the award, to be computed by the insurer and deposited in the appellant's bank account within two months of receipt of the judgment.