USHA RAJKHOWA & ORS. versus PARAMOUNT INDUSTRIES & ORS.

Citation: [2009] 2 S.C.R. 520 · Decided: 17-02-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2009] 2 S.C.R. 520 
A 
USHA RAJKHOWA & ORS. 
...\-
v. 
PARAMOUNT INDUSTRIES & ORS. 
Civil Appeal No.1088 of 2009 
B 
FEBRUARY 17, 2009 
(S.B. SINHA AND V.S. SIRPURKAR, JJ) 
Motor Accident: 
.,. 
Fatal accident - Collision between car and truck - Death 
c of two persons traveling in the car including its driver - Claim 
petition by dependents of car driver-Amount of compensation 
restricted by Tribunal for contributory negligence of car-Award 
affirmed by High Court - HELD: There being no finding of 
contributory negligence, compensation could not be restricted 
on that count - There is no evidence to suggest any failure on 
i-
D 
.,
' 
the part of car driver-Any breach on his part had to be proved 
V• 
by insurer which failed to do so - Principle of res ipsa loquitor 
~ 
applicable -
Compensation as assessed directed to be 
awarded in full - Burden of proof 
I 
E 
Maxim: 
• 
t 
•·. 
'Res ipsa loquitor' - Applicability of 
' 
In a collision between a truck and a Maruti Car, the 
~ 
person driving the car died. His dependents filed a claim 
-~c 
F 
petition before the Motor Accidents Claims Tribunal, which 
limited claimants' entitlement to 50% of the assessed claim 
amount on the ground that there was contributory 
negligence on the part of the deceased. In the appeal filed 
· by the claimants, it was specifically pleaded before the 
G High Court that the Tribunal did not record any finding of 
contributory· negligence on the part of the car and, 
__..... 
therefore, the claim could not have been reduced to 50% 
.,_ 
applying the theory of contributory negligence. The High 
Court affirmed the award observing that the Tribunal had 
H 
520 
USHA RAJKHOWA & ORS. V. PARAMOUNT 
521 
INDUSTRIES & ORS. 
held that the accident took place due to contributory A 
->-
negligence of drivers of both the vehicles. Aggrieved, the 
claimants filed the appeal. 
Allowing the appeal, the Court 
HELD: 1.1 There is no specific finding to the effect B 
that Maruti Car was guilty of contributory negligence. The 
words "contributory negligence" nowhere appear in the 
,>/ 
award passed by the Tribunal. There is only one stray 
..,, 
statement in the award, concerning the evidence of PW-3 
to the effect that he failed to state which of the vehicles c 
was actually at fault. The High Court also, referring to the 
same sentence of PW-3, has erred in observing in its 
judgment that the Tribunal has held that the accident took 
place due to contributory negligence of the driver of the 
truck and the Maruti Car. From a close scrutiny of the D 
.... 
statement of PW-3, it is clear that (1) the truck was coming 
-( 
in high speed; (2) it was the truck, which hit the car, and 
not vice versa; and (3) the Maruti Car was going on its 
own side. In the circumstances, applying the doctrine of 
res ipsa Joguitor, it is clear that it was because of the 
E 
negligence on the part of the truck that the accident took 
place. [para 9] [526-8, C, D, E; 527-D, E, F, G] 
,, 
Pramodkumar Rasikbhai Jhaveri Vs. Karmasey 
-+ 
Kunvargi Tak and Ors. 2002 (6) SCC 455; Astley Vs. Austrust 
Ltd. 1999 (73) ALJR 403 - relied on. 
F 
1.2 There was absolutely no evidence to suggest that 
there was any failure on the part of the car driver to take 
any particular care or that he had breached his duty in 
any manner. Such breach on his part had to be proved by 
Insurance Company as it was its burden and for that, the G 
~~ 
Punchanama of the spot showing tyre marks caused by 
-{ 
brakes, the Panchanama of the damaged car and the 
truck could have been brought on record. The Insurance 
Company has obviously failed to discharge its burden. 
[para 1 O] [529-C, D] 
H 
522 
SUPREME COURT REPORTS 
[2009] 2 S.C.R. 
A 
2. The Court was not addressed on the question of 
quantum. The Tribunal, on the basis of monthly income 
of the deceased and applying the multiplier formula 
correctly assessed the compensation. However, in the 
circumstances, there would be no question of restricting 
B the claim to 50% of the assessed amount of 
compensation, as the accident did not take place because 
of the contributory negligence. The appellants would be 
entitled to full compensation. The award of the Tribunal 
and the judgment of the High Court are modified 
c accordingly. [para 11-12] [529-E, F, G] 
D 
E 
F 
Case Law Reference 
2002 (6) sec 455 
1999 (73) ALJR 403 
relied on 
relied on 
para.10 
para 10 
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1088 
of 2009 
From the final Judgement and Ord

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