Negligence exists two ways

Diksha Sharma — Sun, 24 Jan 2021 14:47:00 +0000

Negligence exists two ways Diksha Sharma student of Government Law College, Mumbai

The Oriental Insurance Co Ltd vs Smt Mamta Devi and Ors.

Facts:

The deceased along with two pillion riders were traveling from scooter to Meerut after which they met with an accident and struck against a truck, parked on the road without the indicator lights turned on. They were taken to the hospital after being treated upon which they succumbed to injuries and lost life eventually. A complaint was filed for recovery of an insurance claim, which was repudiated by the Insurance Company on the grounds of negligence. The tribunal court ordered the appellant that is the Insurance company to award a compensation of Rs. 5,72,770, aggrieved by which the Company filed an appeal in the High Court.

Issues:

• Whether both the deceased and truck driver were negligent?
• Whether the family of the deceased is entitled to compensation?

Legal Provisions:

• Section 128, Motor Vehicles Act,1988 – Safety measures for drivers and pillion riders
• Tort of Negligence – Composite negligence

Appellant’s Contention:

It was submitted by the learned counsel from the appellant’s side that there lied partial negligence on the part of the truck driver but it cannot be denied that the deceased was not negligent because he did not conform to the rules of the Motor Vehicles Act, wherein it is clearly mentioned that the sitting capacity in case of a two-wheeler vehicle is only two. The provision of negligence speaks for itself which highlights the failure to exercise care towards others whether be it intentional or accidental.

Respondent’s Contention:

It was contented by the counsel that the truck driver was also negligent by parking the truck alongside the highway by not complying with the traffic rules. The vehicle was insured and therefore the Insurance Company is liable to pay compensation.

Observations of the court:

The court had to thoroughly check the applicability of composite negligence and contributory negligence. The tribunal had not erred in concluding that the scooter driver was 30% negligent. The court read the judgment of T. O Anthony v Karvarnan and Ors. to distinguish between contributory and composite negligence. If proved that the negligence has occurred on the part of a person because of a breach in his prime responsibility and care which any prudent man would exercise, he is liable for the consequences of his act. But herein, the Insurance Company failed to prove if there were more than two persons on the scooter.

Judgment:

The decision of the tribunal court is not liable to be set aside and therefore it was ordered that the entire amount of compensation will be deposited by the Insurance Company.

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Compensation cannot be guaranteed on permanent disability basis every time

Diksha Sharma — Sat, 23 Jan 2021 13:44:00 +0000

Compensation cannot be guaranteed on permanent disability basis every time written by Diksha Sharma student of Government Law College, Mumbai

The Branch Manager vs Agilan

Facts:

A petition was filed by the respondent for merely spectate of a demolition of a building being carried out, due to which a part of debris fell on the respondent and sustained several injuries. The claimant started to suffer from permanent disability in the lower limbs. The Tribunal decided on awarding compensation to the claimant on the basis of two heads i.e. loss of earning power and permanent disability, however, aggrieved by this decision the appellant that is Insurance Company filed an appeal in the High Court.

Issues:

• Is the area of demolition to be considered as a private place?
• Has the respondent contributed to negligence?

Legal Provisions:

• Tort of Negligence
• Motor Vehicles Act,1988

Appellant’s Contention:

The learned counsel appearing on behalf of the appellants submitted that the place of incidence that is the area of demolition is a private place and knowing that is not safe to enter in the respective arena, the claimant decided to spectate in close premises, hence, he has deemed to contribute negligence on his own. It was also contended that since the respondent was spectating from the backside of the building, it couldn’t have been foreseeable for the bulldozer driver to check any individual’s presence. As per this contention, this is a case of volenti non fit injuria. It was further submitted the basis of deciding compensation by the Tribunal was contrary to the judgment of Full Bench in Cholan Roadways Corporation Ltd vs Ahmed Thambi.

Respondent’s Contention:

It was contented by the counsel on behalf of the respondent that the contention presented by the appellant’s counsel regarding private place doesn’t stand. The counsel drew the attention of the court on the definition of ‘public place’ explainable under the Motor Vehicles Act, 1988 and said that road is a public place to which the public carries a right to access. The counsel relied on the judgment of Pandurang vs New India LIC Ltd. The driver of the bulldozer was solely responsible, therefore, there is no negligence on the part of the claimant.

Observations of the court:

The court was of the view submitting that there was 20% negligence on the part of the claimant as well as 80% on the driver of the bulldozer. The Tribunal had erred in the calculation of the claim of compensation. It was the duty of the driver of the bulldozer to issue a warning in the public place. Compensation awarded on the grounds of permanent disability should be set aside.

Judgment:

The sum decided on account of permanent disability is deducted and the claimant is subjected to a compensation of Rs. 4,11,377 from earlier Rs. 5,11,377 .

The post Compensation cannot be guaranteed on permanent disability basis every time appeared first on LexForti .

Tort of Negligence Archives - LexForti

Negligence exists two ways

The Oriental Insurance Co Ltd vs Smt Mamta Devi and Ors.

Facts:

Issues:

Legal Provisions:

Appellant’s Contention:

Respondent’s Contention:

Observations of the court:

Judgment:

Compensation cannot be guaranteed on permanent disability basis every time

The Branch Manager vs Agilan

Facts:

Issues:

Legal Provisions:

Appellant’s Contention:

Respondent’s Contention:

Observations of the court:

Judgment: