National Insurance Company Limited vs Kakoli Nandi & Ors

Biswaroop Chowdhury, J

The appellant before this Court was an opposite party in a case under Section 166 of the Motor Vehicles Act 1988 and is aggrieved by the Judgment and Award dated 17th March 2023 passed by Learned Additional District Judge Special Court Paschim Medinipur in charge in MAC Case no. 86 of 2019.

The case of the claimants/respondents no-1, 2, and 3 before the Learned Trial Court may be summed up thus:

On 06.12.18 at about 10 A.M. when the victim Dipak Kumar Nandi alias. Dipak Nandi was driving vehicle bearing No. WB-11TC/0015 (Truck) from Khargapur to Kolkata his vehicle was dashed near Birshibpur Flyover Bridge and NH 6 by another vehicle bearing No. WB 29B/1443 (Lorry) which resulted into multiple bleeding injuries over his person and he died on the way to Uluberia Hospital. The accident occurred due to rash and negligent driving of the driver of vehicle bearing No. WB-29B/1443. The victim was a driver by profession. He was the only earning member of his family. On his death legal heir and successor of the deceased has brought the instant proceeding to get compensation to the tune of Rs. 12 Lakh only.

Pursuant to filing of the case notice was issued to opposite parties vehicle owners and the opposite parties insurance companies; Although opposite parties vehicle owners appeared and filed written statements but subsequently they did not contest the case. However the opposite party National Insurance Company filed written statement and contested the case.

By Judgment and Award dated 17th March 2023 the Learned Trial Judge disposed of the claim case by observing and directing as follows:

‘Hence it is ordered that the MAC case no. 86 of 2019 be and the same is allowed on contest without cost against the OP No-3 National Insurance Company Limited and in exparte against the owners of the vehicle without costs.

OP No-3 National Insurance Company Limited, the insurer of the offending vehicle bearing no. WB-29B/1443 Lorry is directed to pay the compensation of Rs. 12,88,600/- (Rupees Twelve Lakh Eighty Eight Thousand and Six Hundred only) to the claimant no. 1, namely, Smt. Kakoli Nandi by account payee cheques within two months hereof with the interest as per banking rate applicable to fixed deposit from the date of filing of the application till realization of the amount. The remaining claimants are not entitled to get compensation as they are not found dependants upon the victim.’

The appellant National Insurance Company Limited being aggrieved by the Judgment and Award passed by the Learned Trial Court has come up with the instant appeal.

Heard Learned Advocate for the appellant and Learned Advocate for the respondent no. 1 to 3, perused the evidence adduced and materials on record.

Learned Advocate for the appellant submits that the Learned Trial Judge erred by not appreciating the fact that the victim vehicle was driven in a rash and negligent’ manner and without proper registration number and therefore the awarded amount should have been deducted in proportion to the contributory negligence of the victim to the accident.

Learned Advocate further submits that the Learned Judge erred in law in accepting the monthly income of the victim to be Rs. 12,000/- without proper documentary evidence. Learned Advocate also submits that the Learned Judge erred in deciding that an additional amount of Rs. 50,000/- on collective heads ‘general damages’ to the claimants should be awarded in addition to a sum of Rs. 10,85,070/- already granted under the head of ‘pecuniary and non pecuniary compensation’.

Learned Advocate relies upon the following Judicial decisions:-

Lachoo Ram and others VS Himachal Road Transport Corporation

Reported in (2014) 13 SCC-P-254.

Nisham Singh and others VS Oriental Insurance Company Limited

Reported in (2018) 6 SCC-P-765.

Rajamma and others VS M/S. Reliance General Insurance Co. Ltd. And Anr.

Criminal Appeal No-5172 of 2025. (supreme Court of India).

Raj Rani and others VS Oriental Insurance Company Limited and others.

Reported in (2009) 13 SCC-P-654.

Learned Advocate for the respondents/claimants submits that P.W. 2 (eye witness) has stated in his evidence that the accident took place due to rash and negligent driving of the offending vehicle. Learned Advocate further submits that the charge sheet has been filed against the driver of the offending vehicle which supports the case of the claimants. Learned Advocate also submits that the appellant Insurance Company did not adduce any evidence to rebut the case of the claimants and the statements of P.W. 2.

Learned Advocate relies upon the following Judicial decisions:

Mamata and others VS Bhau Singh @ Manisingh and Anr.

Reported in 2022(4) TAC.746 (S.C)

ICICI Lombard General Insurance Co. Ltd. VS Rajani Sahoo and others.

2025(1) TAC. 374 (S.C)

Sushila and others VS Ram Swaroop and others

Reported in 2023(2) TAC. 709 (S.C.)

Before proceeding to decide on the issue of contributory negligence it would necessary at the outset to consider the evidence of P.W. 2.

P.W. 2 Pradip Giri in his examination in chief has stated that he is an eye witness of this case and the accident took place in front of him. He stated that on 6.12.18 at about 10 A.M, while he was going to Kolkata by road over Birshibpur Flyover he sow one Lorry (10 wheels) being No. WB-29B/1443 going on the same direction rash and negligently driving the said vehicle Zic-Zac way and by putting brake on the same and another chassis vehicle was suddenly dashed due to rash driving by Lorry driver being WB-29B/1443 and the driver of the Chassis vehicle fell on the road and seriously injured.

In Cross-Examination P.W. 2 stated that accident occurred 200 metres away from him. He further stated that one person was injured by the accident. After the accident the injured fell from his own vehicle. He also stated that he carried injured to hospital. He was examined by I.O. of the Criminal Case initiated for rash and negligent driving.

Thus from the evidence and FIR it is an admitted position that the vehicle WB-29B/1443 did not dash the vehicle WB-11TC/0015 which was driven by the victim but the vehicle WB-11TC/0015 suddenly dashed the vehicle WB-29B/1443 which was plying rashly in a ZIG-Zag manner and that due to sudden applying the brake caused accident. It is to be decided as to whether there was contributory negligence on the Part of the victim.

In the case of Raj Rani and ors (supra) the Hon’ble Supreme Court observed as follows:-

‘16. So far as the issue of “contributory negligence” is concerned, we may notice that the tribunal has deducted 1/3rd from the total compensation on the ground that deceased had contributed to the accident. The same, we find, has been upheld by the High Court. This court in Usha Rajkhowa and Ors. v. Paramount Industries and Ors. [Civil Appeal No. 1088 of 2009 (arising out of SLP © No. 16647 of 2008)] discussed the issue of contributory negligence noticing, inter alia, earlier decisions on the same topic. It was held that :

“10. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v. 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:

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 “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.”

The principle of 50:50 in cases of contributory negligence has been discussed and applied in many cases before this court. In Sri Krishna Vishweshwar Hede v. The General Manager, K.S.R.T.C. (2008 ACJ 1617), this court upheld the judgment of the Tribunal assessing the ratio of liability at 50:50 in view of the fact that there was contributory negligence on the part of the appellant and fixed the responsibility for the accident in the ratio of 50:50 on the driver of the bus and the appellant. In this case, the truck was stationary. Some amount of negligence on the part of the deceased cannot be ruled out.

hence in the insistent case, we fund that there was contributory negligence on the part of the deceased and accordingly the claimant was entitled to only 50% of the total amount of loss of dependency.‟

In the case of Pramad Kumar Rasik Bhai Thaveri VS Karmasey Kunvargitak-reported in (2002) 6 SCC 455 the Hon’ble Supreme Court observed as follows:

‘Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of reasonable man is as relevant in the case of plaintiff's contributory negligence as in the case of defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley Vs. Austrust Ltd. (1999) 73 ALJR 403 is worthy of quoting:

"A finding of contributory negligence turns on a factual 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 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 negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage 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 relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property."

It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling Vs. Cooper [1931] A.C. 1 at page 9, Lord Hailsham said:

"Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence: the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances."

In the case of Mamata and others VS Bhav Singh @ Mansingh and Anr. reported in 2022(4) TAC 746 (S.C.) the Hon’ble Supreme Court observed as follows:-

‘8. As noticed above, the accident had occurred on 15.12.2011. it is clear from the materials on record that on the fateful day, the deceased was driving dumper of his owner and was going to Bhitarvar after unloading the soil at the Harsi Canal. During this time, the owner of the offending dumper who was driving the same himself was going ahead of the deceased, had suddenly stopped his dumper in a negligent manner without giving any signal by which the dumper driven by the deceased dashed to the offending dumper. Due to the said accident, the deceased sustained injuries and succumbed to death on the spot. Immediately after the accident, PW-2 lodged a report at Exhibit-4 against the driver of the offending dumper. The dumper of the accused was seized from the spot and its driver was arrested.

It is settled law that contributory negligence arises when there has been some act or omission on the claimant’s part which has materially contributory to the damage caused. Negligence ordinarily 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.’

Upon considering the Judicial decisions it is clear that contributory negligence arises when there has been same act or omission on the claimants part which has materially contributed to the damage caused. From the evidence of P.W. 2 Pradip Giri who is also a witness in the charge sheet of the police Authority there is nothing to infer that the victim contributed to such mishap. There is also no witness examined by the appellant Insurance Company, in this regard. The Learned Trial Judge upon considering the evidence adduced observed that the cross-examination of the witness does not transpire any cogent material showing that the victim contributed towards occurrence of the accident. Thus this Court does not find any error of the findings of the Learned Trial Judge about rash and negligent driving by driver of vehicle no. WB-29B/1443 (Lorry). Further this Court also does not find any error on the ascertaining of total dependency loss amounting to Rs. 11,61,600/- and awarding Rs. 77,000/- on account of loss of consortium, loss of estate and funeral expenses.

However awarding further Spousal Consortium of sd. 50,000/- to claimant No-1 cannot be sustained. Thus the total compensation which the respondents no-1 to 3 is entitled from the appellant National Insurance Company Limited comes to Rs. 12,33,600/- by arthemitical calculation However this Court is of the view that compensation of Rs. 12,00,000/-(Rupees twelve lakh) is just and reasonable.

Hence this Appeal FMA-558 of 2023 stands disposed. The Compensation Awarded by Learned Additional District Judge Special Court Paschim Mednipur (In-Charge) in MAC Case No-86 of 2019 stands reduced to Rs. 12,00,000/- (Rupees twelve lakh) along with interest @6% per annum from date of filing claim case till today. The appellant National Insurance Co. Ltd. Shall deposit Rs. 12,00,000/- along with interest @6% per annum before the Registrar General High Court Calcutta if not already deposited within 8 weeks from the date of Communication of the order. The respondent no-1 to 3 will be entitled to withdraw Rs. 12,00,000/- along with interest as observed above including accrued interest upon compliance of necessary formalities. The residuary amount if any will be returned to the Appellant along with accrued interest.

Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.