Case BriefsHigh Courts

Bombay High Court: The Bench of Sunil K. Kotwal, J. dismissed an appeal while modifying the award passed by the Motor Accident Claims Tribunal, Latur (MACT).

The present appeal was filed by the New India Assurance Company Ltd. – respondent 2 against the judgment and award passed by Motor Accident Claims Tribunal, Latur. Tribunal had awarded total compensation of Rs 5,96,000 inclusive of “no-fault liability” compensation; with interest thereon @7.5% p.a.

Facts of the case are that the deceased while proceeding on his motorcyclye along with his friend was dashed by the offending tractor from the opposite direction which resulted in his death. It has been stated that the accident occurred due to rash and negligent driving, due to which the claim petition for compensation under Section 166 Motor Vehicles Act was filed.

Mr S.G. Chapalgaonkar, counsel for the appellant submitted that the present challenge for the award is preferred on two grounds that the accident occurred due to contributory negligence of the deceased and exorbitant compensation has been awarded by the Tribunal. Further, it has been stated by the counsel for the appellant that, Tribunal without any evidence assessed the notional income of the deceased to be Rs 4,500 per month and awarded exorbitant compensation. As no cross-objection or cross-appeal was filed, the Court cannot enhance the compensation and only determine fair and reasonable compensation. He cited the decision of the Supreme Court in Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar; (2015) 4 SCC 237, and stated that, Supreme Court exercise jurisdiction under Article 142 of the Constitution of India while enhancing compensation in absence of cross-objection and cross-appeal by the claimant.

Further counsel for the claimants Mr N.D. Kendre, Advocate submitted that the Tribunal erroneously applied the multiplier of “16” when the deceased was only 30 years old and as per the decision in Sarla Verma v. DTC, (2009) 6 SCC 121, multiplier of “17” is applicable.

Thus the High Court examined all the contentions place before it and further analysed and noted that, the insurance company did not examine any eye witness of the accident which leaves them to examine the police papers in order to determine if the plea for contributory negligence by the insurance company can be accepted or not.  Court through the FIR copy found out that the accident occurred due to rash and negligent driving by the driver of the offending tractor.

“While deciding quantum of compensation, the age of the deceased plays an important role.”

It was clear by placing reliance on the above-stated decision of the Supreme Court in Sarla Verma v. DTC, (2009) 6 SCC 121, that multiplier of “17” would be applicable in the present set of circumstances.

Further, while keeping in consideration the age and personal skill of the deceased, notional income as determined by the tribunal was just and reasonable. Taking up the decision from the case National Insurance Co. Ltd. v. Pranay Sethi; (2017) 16 SCC 680, 40% income is to be added in the annual income of the deceased towards loss of future prospect.

As the appeal was filed by the Insurance Company, fruits of awards passed by the Tribunal won’t be received by the claimant, which leads them to an entitlement of compensation only at 9% p.a. interest.

Therefore, the conclusion that comes out from the present case is that the High Court cannot exercise jurisdiction under Article 142 of the Constitution of India as done by the Apex Court stated above, the only jurisdiction that can be exercised by the High Court is under Order 41 Rule 33 CPC, which would enhance the rate of interest to the extent of 9% p.a and the same to be modified by the tribunal in the present case.[New India Assurance Co. Ltd. v. Sunita, 2019 SCC OnLine Bom 2, decided on 04-1-2019]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Division: Plaintiff had approached this court before a Single Judge Bench of E. Revelas, J., for grant of damages against the defendant for injuries sustained by him during a motor vehicle accident.

Counsel of defendant, Advocate Paterson conceded that in absence of any contrary version the plaintiff’s account of the accident had to be accepted but since plaintiff did not apply brakes shows his negligence and that there was contributory negligence on his part.

High Court was of the view that even if some other driver would have reacted differently in the same circumstances, it does not mean that the plaintiff’s responses and actions were negligent. It was noticed that if the plaintiff had applied brakes it could have caused the vehicle to skid into other traffic and could have then resulted in contributory negligence. Court found the other colliding vehicle’s driver to be aggressive, reckless and inconsiderate and the one to be wholly blamed. Therefore, the defendant was directed to pay 100% of damages to the plaintiff. [Nicholas v. Road Accident Fund, Case No. 3880 of 2015, decided on 27-11-2018]

 

Case BriefsForeign Courts

High Court of Australia: In the instant case, the respondent sustained serious spinal injuries which rendered her paraplegic, when she was thrown from the back seat of a car being driven by the appellant who was drunk at the time of the accident. The issue for determination was whether the respondent was contributorily negligent  for choosing to travel in the car driven by the appellant when she ought to have known that he was intoxicated and, secondly, for failing to engage her seatbelt.

The trial Judge rejected the contention of the respondent that the appellant’s erratic driving had prevented her from fastening her seatbelt and held that failure to wear a seatbelt constitutes contributory negligence under Section 49 of the Civil Liability Act 1936. The Judge further held that the exception in Section 47(2)(b) of the Act applies in the present case as the respondent could not reasonably be expected to have avoided the risk of riding with the appellant in the circumstances. On appeal, a majority of the Full Court of the Supreme Court of South Australia dismissed the appellant’s appeal on the Section 47(2)(b) issue, and allowed the respondent’s cross-appeal on the issue of Section 49 and held that her failure to fasten her seatbelt was a result of her direct and natural response to the appellant’s erratic driving.

The appellant appealed to the High Court on both issues. A bench of French CJ, Kiefel, Bell, Keane And Gordon JJ unanimously dismissed the appeal on the Section 47(2)(b) issue and held that the respondent, who suffered major injuries as a result of a motor vehicle accident, was not contributorily negligent under Section 47 of the Civil Liability Act 1936 for travelling in a car driven by an intoxicated driver, as according to the facts of the case, she could not reasonably be expected to have avoided the risk of travelling with the appellant. However, the Court allowed the appeal and affirmed the trial judge’s finding that the appellant’s driving did not prevent the respondent from fastening her seatbelt and accordingly held that the respondent was contributorily negligent under Section 49 of the Act for failing to wear the seatbelt. [Alex Allen v. Danielle Louise Chadwick, decided on 9-12-2015]