Supreme Court of India
Sushma vs Nitin Ganapati Rangole on 19 September, 2024
Author: Pamidighantam Sri Narasimha
Bench: Pamidighantam Sri Narasimha
2024 INSC 706 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 10648 OF 2024
(Arising out of SLP(Civil) No(s). 21172 of 2021)
SUSHMA .…APPELLANT(S)
VERSUS
NITIN GANAPATI
RANGOLE & ORS. ….RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). 10649 OF 2024
(Arising out of SLP(Civil) No(s). 1023 of 2022)
CIVIL APPEAL NO(S). 10650 OF 2024
(Arising out of SLP(Civil) No(s). 21248 of 2021)
CIVIL APPEAL NO(S). 10651 OF 2024
(Arising out of SLP(Civil) No(s). 337 of 2022)
CIVIL APPEAL NO(S). 10652-10653 OF 2024
(Arising out of SLP(Civil) No(s). 17692-17693 of 2023)
JUDGMENT
Mehta, J.
Civil Appeals @ SLP(Civil) Nos. 21172 of 2021
Civil Appeals @ SLP(Civil) Nos. 1023 of 2022
Civil Appeals @ SLP(Civil) Nos. 21248 of 2021
Civil Appeals @ SLP(Civil) Nos. 337 of 2022
Signature Not Verified
Digitally signed by
Indu Marwah
Date: 2024.09.19
17:30:37 IST
Reason:
1. Leave granted.
1
2. The appellant-claimants have preferred these appeals being
aggrieved by the common judgment dated 7th April, 2021 passed
by the Division Bench of High Court of Karnataka in MAC appeals1
filed by the appellant-claimants and respondent No.2-Reliance
General Insurance Limited (for short the ‘Insurer’) under Section
173(1) of the Motor Vehicles Act, 1988 (for short the ‘Act’). The
Division Bench of the High Court disposed of the appeals in the
following manner: –
“ORDER
1. Miscellaneous First Appeals filed by both the Insurance
Company and the Claimants are disposed of;
2. The modified compensation in all the appeals is as follows:
MFA No. Amount (Rs.)
102773 of 2016 (MVC 2277 of 2013) 21,81,718.00
102774 of 2016 (MVC 2278 of 2013) 74,720.00
102775 of 2016 (MVC 2279 of 2013) 59,54,392.00
102776 of 2016 (MVC 2280 of 2013) 7,01,400.00
102777 of 2016 (MVC 2281 of 2013) 15,000.00
3. Insurance company shall satisfy the award within four
weeks from the date of receipt of certified copy of this order;
4. Apportionment and disbursement of the compensation
amount shall be as per the award of the Tribunal;
5. The amount in deposit, if any, be transmitted to the
Tribunal forthwith, for disbursement to the claimants.”1
In Miscellaneous First Appeal Nos. 102776, 102549, 102775, 102546, 102773, 102547,
102777 & 102550 of 2016 and 100204 of 2017.
2
3. Brief facts relevant and essential for the disposal of the
present appeals are that on 18th August, 2013, a car bearing
registration No. MH-09/BX-4073 (for short ‘the car’) collided with
a 14-wheeler trailer truck bearing registration No. MH-09/CA-
0389 (for short ‘the offending truck’) which was left abandoned in
the middle of the highway without any warning signs in the form
of indicators or parking lights. The collision resulted into the death
of the passengers of the car, namely, Sunita, Ashtavinayak Patil,
Deepali and the driver Saiprasad Karande at the spot. One of the
passengers, namely, Smt. Sushma (wife of deceased- Ashtavinayak
Patil) survived the accident, however, sustaining grievous injuries.
The car was insured by respondent No. 4-IFFCO-TOKIO General
Insurance Co. Ltd. (for short the ‘Insurance Company’), whereas,
the offending truck was insured by respondent No.2-Insurer.
4. The injured Smt. Sushma and the legal heirs of the deceased
occupants of the car filed separate claim petitions under Section
166 of the Act before the VI Additional District and Sessions Judge
and Member, Additional Motor Accident Claims Tribunal, Belagavi
(hereinafter being referred to as ‘Tribunal’) claiming compensation
from the owner of offending truck i.e. respondent No. 1 and the
insurer of the offending truck i.e. respondent No.2-Insurer. No
3
relief was sought by the claimants against the owner and the
insurer of the car. The claimants alleged that since the offending
truck was left abandoned in the middle of the highway without
switching on the parking lights or indicators or without taking any
other precautionary measures to warn the incoming traffic, the
person in control of the said vehicle was fully responsible for the
accident.
5. The Tribunal, while deciding the claims held that it was a
case of contributory negligence by the drivers of both the vehicles.
The Tribunal observed that the driver of the car had contributed
to the accident because he failed to take appropriate preventive
measures so as to avoid collision with the offending truck which
was parked in the middle of the road.
6. As the appellant-claimants had not claimed compensation
from owner of the car, i.e., respondent No.3-Shri Vasant Ravan
Jadhawar and respondent No.4-Insurance Company of the car,
these respondents were exonerated and the claims against them
were dismissed.
7. The Tribunal computed the compensation as below: –
MVC No. Amount(Rs.)
2277 of 2013 22,25,000.00
2278 of 2013 30,000.00
2279 of 2013 66,02,500.00
4
2280 of 2013 87,500.00
2281 of 2013 12,500.00
8. The Tribunal held the owner of the offending truck,
respondent No.1 and the respondent No. 2-Insurer jointly and
severally responsible to indemnify the claims of the appellant-
claimants and at the same time directed reduction of the
compensation awarded by 50% on account of contributory
negligence.
9. Aggrieved by the quantum of compensation awarded and the
reduction on account of contributory negligence, the appellant-
claimants filed appeals under Section 173(1) of the Act before the
High Court of Karnataka.
10. Upon hearing arguments advanced on behalf of the parties
and appreciating the material available on record, the Division
Bench of the High Court of Karnataka applied the rule of last
opportunity and held that had the driver of the car been cautious,
he could have avoided the accident. The High Court gave
imprimatur to the Tribunal’s observation with respect to
contributory negligence, however, it modified and enhanced
compensation awarded by the Tribunal while disposing of the
appeals vide judgment dated 7th April, 2021 (supra). The High
5
Court affirmed the direction of the Tribunal holding the respondent
No.2-Insurer responsible to indemnify the claims to the extent of
50%.
11. The appellant-claimants have preferred these appeals by
special leave primarily aggrieved by the deduction of the
compensation awarded to them on account of contributory
negligence.
12. Thus, the core issue involved in these appeals centres around
the deduction of 50% compensation awardable to the appellant-
claimants, who have assailed the concurrent findings of the Courts
below on the aspect of contributory negligence whereby, the driver
of the car, i.e. Saiprasad Karande (deceased), was held jointly
responsible for causing the collision.
13. The challenge in these appeals is against the concurrent
findings of the Courts below. The scope of interference by this
Court in such concurrent finding while exercising jurisdiction
under Article 136 of the Constitution of India is well-established.
In the case of Sukhbiri Devi v. Union of India2, this Court noted:
“3. At the outset, it is to be noted that the challenge in this
appeal is against concurrent findings by three Courts, as
mentioned hereinbefore. The scope of an appeal by special
leave under Article 136 of the Constitution of India against the
concurrent findings is well settled. In State of2 2022 SCC OnLine SC 1322
6
Rajasthan v. Shiv Dayal3 reiterating the settled position, this
Court held that a concurrent finding of fact is binding, unless
it is infected with perversity. It was held therein: —
“When any concurrent finding of fact is assailed in
second appeal, the appellant is entitled to point
out that it is bad in law because it was recorded
de hors the pleadings or it was based on no
evidence or it was based on misreading of material
documentary evidence or it was recorded against
any provision of law and lastly, the decision is one
which no Judge acting judicially could reasonably
have reached. (see observation made by learned
Judge Vivian Bose, J. as His Lordship then was a
Judge of the Nagpur High Court in Rajeshwar
Vishwanath Mamidwar v. Dashrath Narayan
Chilwelkar, AIR 1943 Nag 117 Para 43).”
4. Thus, evidently, the settled position is that interference
with the concurrent findings in an appeal under Article
136 of the Constitution is to be made sparingly, that too
when the judgment impugned is absolutely perverse. On
appreciation of evidence another view is possible also cannot
be a reason for substitution of a plausible view taken and
confirmed. We will now, bearing in mind the settled position,
proceed to consider as to whether the said appellate power
invites invocation in the case on hand.”
(emphasis supplied)
14. This Court while dealing with the exercise of power under
Article 136 to interfere with concurrent findings in Mekala
Sivaiah v. State of A.P.,4 expounded: –
“15. It is well settled by judicial pronouncement that Article
136 is worded in wide terms and powers conferred under the
said Article are not hedged by any technical hurdles. This
overriding and exceptional power is, however, to be exercised
sparingly and only in furtherance of cause of justice. Thus,
when the judgment under appeal has resulted in grave
miscarriage of justice by some misapprehension or misreading
of evidence or by ignoring material evidence then this Court is
not only empowered but is well expected to interfere to promote
the cause of justice.
3 (2019) 8 SCC 637
4 (2022) 8 SCC 2537
16. It is not the practice of this Court to re-appreciate the
evidence for the purpose of examining whether the findings of
fact concurrently arrived at by the trial court and the High
Court are correct or not. It is only in rare and exceptional
cases where there is some manifest illegality or grave and
serious miscarriage of justice on account of misreading or
ignoring material evidence, that this Court would interfere
with such finding of fact.
…
18. In Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat [Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,
(1983) 3 SCC 217 : 1983 SCC (Cri) 728] , a two-Judge Bench of
this Court held that this Court does not interfere with the
concurrent findings of fact unless it is established:
18.1. That the finding is based on no evidence.
18.2. That the finding is perverse, it being such as no
reasonable person could arrive at even if the evidence was
taken at its face value.
18.3. The finding is based and built on inadmissible
evidence which evidence, excluded from vision, would
negate the prosecution case or substantially discredit or
impair it.
18.4. Some vital piece of evidence which would tilt the
balance in favour of the convict has been overlooked,
disregarded or wrongly discarded.”(emphasis supplied)
15. In view of the above precedents, it is clear that this Court in
exercise of its jurisdiction under Article 136 of the Constitution of
India has the power to interfere, even if the Courts below have
concurrently reached to a common conclusion with respect to a
certain factual aspect, subject to the condition that such a
conclusion is so perverse that no reasonable person could arrive
8
at such a conclusion even if the evidence was taken at its facevalue.
16. Having considered the submissions advanced by learned
counsel for the parties and after going through the impugned
judgements passed by the High Court and the Tribunal as well as
upon appreciating the material placed on record, we feel that the
contentious finding whereby, the driver of the car, namely,
Saiprasad Karande (deceased) was held jointly responsible for
causing the accident along with the driver/owner of the offending
truck leading to the claims of the passenger-Sushma &
dependants of the deceased-passengers being deducted by 50% on
the principle of contributory negligence is perverse on the face of
the record.
17. In addition, we hold that the finding of the Courts below,
which reduced the claims of the legal heirs of the deceased and the
injured, other than the legal heirs of the driver-Saiprasad Karande
(deceased) is also invalid in the eyes of law. The Courts below
uniformly applied the principle of contributory negligence while
directing deduction from the compensation awarded to the
respective appellant-claimants, i.e. the dependents of passengers
and the injured as well as the dependents of the driver-Saiprasad
9
Karande @ 50%. Thus, the contributory negligence of the driver ofthe car was vicariously applied to the passengers which is prima
facie illegal and impermissible.
18. In the case of Union of India v. United India Insurance Co.
Ltd.,5 this Court dealt with the question whether the driver’s
negligence in any manner vicariously attaches to the passengers
of the motor vehicle of which he was the driver, and it was held as
below: –
“10. There is a well-known principle in the law of torts called
the “doctrine of identification” or “imputation”. It is to the
effect that the defendant can plead the contributory negligence
of the plaintiff or of an employee of the plaintiff where the
employee is acting in the course of employment. But, it has
been also held in Mills v. Armstrong [(1888) 13 AC 1, HL] (also
called The Bernina case) that that principle is not applicable
to a passenger in a vehicle in the sense that the negligence of
the driver of the vehicle in which the passenger is travelling,
cannot be imputed to the passenger. (Halsbury’s Laws of
England, 4th Ed., 1984 Vol. 34, p. 74; Ratanlal and
Dhirajlal, Law of Torts, 23rd Ed., 1997, p. 511; Ramaswamy
Iyer, Law of Torts, 7th Ed., p. 447.) The Bernina case [(1888)
13 AC 1, HL] in which this principle was laid in 1888 related
to passengers in a steamship. In that case a member of the
crew and a passenger in the ship Bushire were drowned on
account of its collision with another ship Bernina. It was held
that even if the navigators of the ship Bushire were negligent,
the navigators’ negligence could not be imputed to the
deceased who were travelling in that ship. This principle has
been applied, in latter cases, to passengers travelling in a
motor vehicle whose driver is found guilty of contributory
negligence. In other words, the principle of contributory
negligence is confined to the actual negligence of the
plaintiff or of his agents. There is no rule that the driver
of an omnibus or a coach or a cab or the engine driver of
a train, or the captain of a ship on the one hand and the5 (1997) 8 SCC 683
10
passengers on the other hand are to be “identified” so as
to fasten the latter with any liability for the former’s
contributory negligence. There cannot be a fiction of the
passenger sharing a “right of control” of the operation of
the vehicle nor is there a fiction that the driver is an agent
of the passenger. A passenger is not treated as a backseat
driver. (Prosser and Keeton on Torts, 5th Ed., 1984, pp. 521-
22.) It is therefore clear that even if the driver of the passenger
vehicle was negligent, the Railways, if its negligence was
otherwise proved — could not plead contributory negligence
on the part of the passengers of the vehicle. What is clear is
that qua the passengers of the bus who were innocent, — the
driver and owner of the bus and, if proved, the Railways — can
all be joint tortfeasors.”
(emphasis supplied)
19. It is clear from the ratio of the above judgment that the
contributory negligence on the part of a driver of the vehicle
involved in the accident cannot be vicariously attached to the
passengers so as to reduce the compensation awarded to the
passengers or their legal heirs as the case may be.
20. Thus, we have no hesitation in holding that the Courts below
committed gross error in law while reducing the compensation
awarded to the appellant-claimants, being the dependents of the
deceased-passengers and Smt. Sushma as the claims of these
claimants cannot be truncated by attaching the vicarious liability
with the driver. However, the claim of the dependents of the
deceased driver Saiprasad Karande would stand on a different
footing.
11
21. We shall now proceed to discuss whether the Courts below
were justified in fastening partial liability on the driver of the car
on the basis of contributory negligence in causing the accident.
22. The High Court, after adverting to the evidence available on
record, made the following observations on the aspect of
contributory negligence: –
“12. The Investigation Officer has filed charge sheet against
the driver of the car as also the driver of truck. Exhibit P4-spot
mahazar establishes the fact that the offending truck was
parked on the middle of the road. Undisputedly, accident took
place at 9.10 pm and the truck is a Heavy Goods Vehicle.
Exhibit P6-Photograph of the place of accident substantiate
that the offending truck was fourteen wheeled heavy truck
which was parked on the middle of the road. Though Shri G.N.
Raichur, learned counsel submitted that the truck was parked
on the extreme left of the road, however, perusal of the
photographs would clearly substantiate the fact that the
truck was parked on the middle of the road and on the
other hand, the learned counsel for the claimants
submitted that there was fog at the time of the accident.
There are no eye-witnesses to the incident. Taking into
consideration the facts in totality, it may be stated that if the
driver of the car was cautious, he would have avoided the
accident and accordingly, the rule of last opportunity would
be squarely applicable to the facts of the case and therefore,
the finding recorded by the Tribunal fastening 50%
contributory negligence on the drivers of both the vehicles in
question, is just and proper. In view of the same, the finding
recorded by the Tribunal on issue No.1 is, hereby, affirmed
and the appeals filed by the Insurance Company challenging
the liability are required to be rejected, accordingly rejected.”
(emphasis supplied)
23. On going through the above extract from the impugned
judgment, it is evident that the High Court recorded an affirmative
finding that the offending truck was parked in the middle of the
road. This finding as borne out from the evidence is not under
12
challenge and has attained finality. The accident took place on 18th
August, 2013 which as per the Hindu calendar fell on Shukla
Paksha Dwadashi, and thus, there was not even a remote
possibility that the road would be illuminated by moonlight at the
time of the accident. The discussion of evidence by the Tribunal
and the High Court makes no reference to availability of
streetlights at the collision site and hence, there is no doubt that
at the time of the accident, the conditions on the road would have
been pitch dark making it virtually impossible for the incoming
vehicles to sight the stationary offending truck within a reasonable
distance.
24. Learned counsel for the appellant-claimants, urged that there
is neither any evidence nor any finding by the Courts below that
the offending truck was parked on the road after taking due care
and caution i.e. either by switching on the parking lights or by
putting any prominent markers around the vehicle so as to warn
the passing vehicles. Apparently thus, the offending truck was left
abandoned in the middle of the highway (as concurrently held by
both the Courts below) without taking due care and caution to
switch on the parking lights or to put in place any other
13
precautionary measures to warn the vehicles traversing the
highway in the dead of the night.
25. Common sense requires that no vehicle can be left parked
and unattended in the middle of the road as it would definitely be
a traffic hazard posing risk to the other road users.
26. We shall briefly refer to the statutory provisions applicable to
the situation at hand.
27. A highway or a road is a public place as defined in Section
2(34) of the Act: –
“2(34) “public place” means a road, street, way or other place,
whether a thoroughfare or not, to which the public have a right
of access, and includes any place or stand at which passengers
are picked up or set down by a stage carriage;”
28. Section 121 of the Act provides that the driver of a motor
vehicle shall make such signals and, on such occasions, as may
be prescribed by the Central Government.
29. Section 122 of the Act provides that no person in charge of a
motor vehicle shall cause or allow the vehicle or any trailer to be
abandoned or to remain at rest on any “public place” in such a
position or in such a condition or in such circumstances so as to
cause or likely to cause danger, obstruction or undue
inconvenience to other users of the public place or to the
passengers.
14
30. Section 126 of the Act provides that no person driving or in
charge of a motor vehicle shall cause or allow the vehicle to remain
stationary in any public place.
31. Section 127(2) of the Act provides that where any abandoned,
unattended, wrecked, burnt or partially dismantled vehicle is
creating a traffic hazard, because of its position in relation to the
public place, or its physical appearance is causing the impediment
to the traffic, its immediate removal from the public place by a
towing service may be authorised by a police officer having
jurisdiction.
32. Regulation 15 of the Rules of Road Regulation, 1989 which
were prevailing on the date of the incident provides that every
driver of a motor vehicle shall park the vehicle in such a way that
it does not cause or is not likely to cause danger, obstruction or
undue inconvenience to other road users. It casts a duty on the
drivers of a motor vehicle stating that the vehicle shall not be
parked at or near a road crossing or in a main road.
33. These legal provisions leave no room for doubt that the
person in control of the offending truck acted in sheer violation of
law while abandoning the vehicle in the middle of the road and
that too without taking precautionary measures like switching on
15
the parking lights, reflectors or any other appropriate steps to warn
the other vehicles travelling on the highway. Had the accident
taken place during the daytime or if the place of accident was well
illuminated, then perhaps, the car driver could have been held
equally responsible for the accident by applying the rule of last
opportunity. But the fact remains that there was no illumination
at the accident site either natural or artificial. Since the offending
truck was left abandoned in the middle of the road in clear
violation of the applicable rules and regulations, the burden to
prove that the placement of the said vehicle as such was beyond
human control and that appropriate precautionary measures
taken while leaving the vehicle in that position were essentially on
the person in control of the offending truck. However, no evidence
was led by the person having control over the said truck in this
regard. Thus, the entire responsibility for the negligence leading to
the accident was of the truck owner/driver.
34. In view of the above discussion, the view expressed by the
High Court that if the driver of the car had been vigilant and would
have driven the vehicle carefully by following the traffic rules, the
accident may have been avoided is presumptuous on the face of
the record as the same is based purely on conjectures and
16
surmises. Nothing on record indicates that the car was being
driven at an excessively high speed or that the driver failed to
follow the traffic rules. The High Court recorded an incongruous
finding that if the offending truck had not been parked on the
highway, the accident would not have happened even if the car was
being driven at a very high speed. Therefore, the reasoning of the
High Court on the issue of contributory negligence is riddled with
inherent contradictions and is paradoxical.
35. The Courts below erred in concluding that it is a case of
contributory negligence, because in order to establish contributory
negligence, some act or omission which materially contributed to
the accident or damage should be attributed to the person against
whom it is alleged.
36. In the case of Pramodkumar Rasikbhai Jhaveri v.
Karmasey Kunvargi Tak6, this Court while referring to a decision
of the High Court of Australia in Astley v. Austrust Ltd.7, went on
to hold 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.”6 (2002) 6 SCC 455
7 (1999) 73 ALJR 40317
37. In the very same judgment, this Court also referred to and
approved the view taken in Swadling v. Cooper8, as below: –
“Mere failure to avoid the collision by taking some extra
ordinary precaution, does not in itself constitute
negligence.”
(emphasis supplied)
38. A three Judge Bench of this Court in the case of Archit Saini
and Another v. Oriental Insurance Company Limited and
Others9, had the occasion to consider an identical fact scenario,
and after analysing the evidence available on record, it was held:-
“8. After having perused the evidence of PW7, Site Map (Ext.
P-45) and the detailed analysis undertaken by the Tribunal, we
have no hesitation in taking the view that the approach of the
High Court in reversing the conclusion arrived at by the
Tribunal on issue No.1 has been very casual, if not cryptic and
perverse. Indeed, the appeal before the High Court is required
to be decided on fact and law. That, however, would not permit
the High Court to casually overturn the finding of
fact recorded by the Tribunal. As is evident from the analysis
done by the Tribunal, it is a well-considered opinion and a
plausible view. The High Court has not adverted to any specific
reason as to why the view taken by the Tribunal was incorrect
or not supported by the evidence on record. It is well settled
that the nature of proof required in cases concerning accident
claims is qualitatively different from the one in criminal cases,
which must be beyond any reasonable doubts. The Tribunal
applied the correct test in the analysis of the evidence
before it. Notably, the High Court has not doubted the evidence
of PW7 as being unreliable nor has it discarded his version that
the driver of the Maruti Car could not spot the parked Gas
Tanker due to the flashlights of the oncoming traffic from the
front side. Further, the Tribunal also adverted to the
legal presumption against the driver of the Gas Tanker of
having parked his vehicle in a negligent manner in the middle
of the road. The Site Plan (Ext. P-45) reinforces the version of8 1931 AC 1
9 (2018) 3 SCC 36518
PW7 that the Truck (Gas Tanker) was parked in the middle of
the road but the High Court opined to the contrary
without assigning any reason whatsoever. In our view, the Site
Plan (Ext. P-45) filed along with the chargesheet does not
support the finding recorded by the High Court that the Gas
Tanker was not parked in the middle of the road. Notably, the
High Court has also not doubted the claimant’s plea that the
Gas Tanker/offending vehicle was parked without any indicator
or parking lights. The fact that PW7 who was standing on the
opposite side of the road at a distance of about 70 feet, could
see the Gas Tanker parked on the other side of the road does
not discredit his version that the Maruti Car coming from the
opposite side could not spot the Gas Tanker due to flashlights
of the oncoming traffic from the front side. It is not in dispute
that the road is a busy road. In the cross-examination, neither
has any attempt been made to discredit the version of PW7 nor
has any suggestion been made that no vehicle with flashlights
on was coming from the opposite direction of the parked Gas
Tanker at the relevant time.
9. Suffice it to observe that the approach of the High Court in
reversing the well-considered finding recorded by the
Tribunal on the material fact, which was supported by the
evidence on record, cannot be countenanced.
10. Accordingly, we have no hesitation in setting aside the said
finding of the High Court. As a result, the appellants would be
entitled to the enhanced compensation as determined
by the High Court in its entirety without any deduction
towards contributory negligence. In other words, we restore
the finding of the Tribunal rendered on issue No.1 against the
respondents and hold that respondent no.1 negligently
parked the Gas Tanker/offending vehicle in the middle of the
road without any indicator or parking lights.”
39. We are of the view that the aforesaid decision applies to the
case at hand on all fours and thus, the appellant-claimants cannot
be denied their rightful compensation on the ground that the driver
of the car, namely Saiprasad Karande (deceased), was jointly
responsible for the accident with the person in control of the
19
offending truck and hence, their claims should be reduced on the
principle of contributory negligence.
40. On a holistic analysis of the material available on record, it is
established beyond the pale of doubt that the offending truck was
parked in the middle of the road without any parking lights being
switched on and without any markers or indicators being placed
around the stationary vehicle so as to warn the incoming vehicular
traffic. This omission by the person in control of the said truck
was in clear violation of law. The accident took place on a highway
where the permissible speed limits are fairly high. In such a
situation, it would be imprudent to hold that the driver of a vehicle,
travelling through the highway in the dead of the night in pitch
dark conditions, would be able to make out a stationary vehicle
lying in the middle of the road within a reasonable distance so as
to apply the brakes and avoid the collision. The situation would be
compounded by the headlights of the vehicles coming from the
opposite direction and make the viewing of the stationary vehicle
even more difficult. Thus, the conclusion drawn by the Courts
below that the driver of the car could have averted the accident by
applying the brakes and hence, he was equally negligent and
contributed to the accident on the application of principle of last
20
opportunity is ex-facie perverse and cannot be sustained. Hence,
it is a fit case warranting exercise of this Court’s powers under
Article 136 of the Constitution of India to interfere with the
concurrent finding of facts.
41. We, therefore, hold that the person in control of the offending
truck insured by respondent No. 2-Insurer, was fully responsible
for the negligence leading to the accident.
42. As a consequence, the deduction of 50% of compensation
awarded to the appellant-claimants on account of contributory
negligence, as directed by the Tribunal and affirmed by the High
Court, cannot be sustained. The finding recorded by the Courts
below on this issue is reversed as being perverse and
unsustainable in the facts as well as in law. Resultantly, it is
directed that there shall be no deduction from the compensation
payable to the appellant-claimants who shall be entitled to the full
compensation as assessed by the Tribunal and modified by the
High Court by the impugned judgment.
43. It is further directed that respondent No. 2-Insurer shall be
jointly and severally liable along with the owner of the offending
truck to indemnify the awards.
44. The appeals are accordingly allowed. No costs.
21
Civil Appeals @ SLP(Civil) Nos. 17692-17693 of 2023
45. Leave granted.
46. In these appeals, the appellant-Malutai10 has challenged the
apportionment of the compensation awarded by the Tribunal
between the appellant and the co-claimant11. Modification in the
apportionment is sought on the ground that the co-claimant Smt.
Sushma has remarried after the claim was decided and thus, she
cannot claim equal share in the compensation.
47. Having considered the submissions advanced on behalf of the
parties, we are not inclined to interfere in the apportionment of the
compensation between the appellant-Malutai and co-claimant
(respondent No.5), as directed by the Tribunal and affirmed by the
High Court. Thus, the said prayer of the appellant-Malutai is
declined.
48. However, we reiterate the findings recorded in Civil Appeal @
SLP (Civil) No. 21172 of 2021 and connected matters and direct
that the claimants, being the mother and wife of the deceased-
Mother of the deceased-Ashtavinayak Patil
10
Smt. Sushma, wife of the deceased-Ashtavinayak Patil (respondent No. 5 in the present
11
appeals)
22
Ashtavinayak Patil, shall be entitled to full compensation without
any deduction on account of contributory negligence.
49. The respondent No.2-Insurer shall be liable to indemnify the
award, however, the apportionment of the compensation inter se
between the claimants as directed by the Tribunal shall not be
disturbed.
50. The appeals are accordingly disposed of. No costs.
51. Pending application(s), if any, shall stand disposed of.
………………….………………….……….J.
(PAMIDIGHANTAM SRI NARASIMHA)
…………………..………………………….J.
(SANDEEP MEHTA)
New Delhi;
September 19, 2024.
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