Mumbai, June 3: Observing that contributory negligence cannot be inferred merely on assumptions without supporting evidence, the Bombay High Court has enhanced the compensation awarded to the family of a man who was killed in a road accident in 1992.
Justice Abhay Ahuja increased the compensation from Rs 5 lakh to Rs 8.83 lakh, along with 9 per cent annual interest, for the family of Gulam Moinuddin Nasibdar, who died after being run over by a lorry in Bhandup on March 18, 1992. The order was passed on May 7, but the detailed copy of the order was made available on Wednesday.
Family challenged tribunal’s finding
Nasibdar was crossing the road opposite Raymond and Dem Company when he was hit by a lorry. He sustained severe injuries and later died. His wife, parents and two minor children subsequently approached the Motor Accident Claims Tribunal (MACT), Thane, seeking compensation under the Motor Vehicles Act.
In its 2003 order, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry driver. However, it also concluded that Nasibdar was equally responsible for the accident and held him 50 per cent contributorily negligent. On that basis, it awarded compensation of Rs 5 lakh.
Challenging the decision, the family argued before the High Court that there was no evidence to support the finding of contributory negligence. They also sought enhancement of compensation.
Court finds no evidence of contributory negligence
The New India Assurance Co. Ltd., on the other hand, contended that there was no evidence of rash or negligent driving by the lorry driver and argued that the deceased had negligently crossed the road. It also questioned the evidence regarding the deceased’s age and income.
After examining the records, the High Court found that the Tribunal’s conclusion on contributory negligence was based purely on assumptions. The Tribunal had reasoned that since the deceased himself worked as a driver, he ought to have exercised greater caution while crossing the road.
Rejecting this approach, the court observed, “Negligence on the part of an individual, including the deceased, has to be based on evidence and cannot be concluded on the basis of mere presumptions and surmises.”
The court noted that the FIR, scene-of-offence panchanama, inquest panchanama, death certificate, post-mortem report, accident report and RTO report all pointed towards rash and negligent driving by the lorry driver. It further observed that the insurance company had failed to produce any rebuttal evidence.
Compensation enhanced to Rs 8.83 lakh
“The law is well settled that without rebuttal evidence, there is no question of contributory negligence,” the court said, adding, “That, in my view, is not permissible.”
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Accordingly, the High Court modified the Tribunal’s order and directed the vehicle owner and the insurer to jointly and severally pay Rs 8.83 lakh with interest at 9 per cent per annum from the date of filing of the claim petition until realisation, after adjusting any amount already withdrawn by the family.
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