M.N. Rajan and ors. Vs. Konnali Khalid Haji and anr. - Court Judgment

Excerpt:

.....term, but is a relative one it is rather; a comparative term. ;(c) evidence act, 1872 (central act no. 1 of 1872) - sections 3, 101 - relavant fact - burden of proof - allegation of negligence - discharge of burden - held - it is true that the burden to prove negligence lies on the claimant who alleges negligence. the question is whether, after seeing the unexpected event ahead of him, the driver of the lorry had taken reasonable care expected of him to avert the accident. a reasonable careful driver does not always assume that other users of the road, whether drivers of others, will behave with reasonable care and he guards against the negligent of others when experience shows such negligence should be common. the test for determining the negligence is whether the driver could be exercising normal care and diligence which ordinarily cautious persons, put in similar circumstances, would have done, to avert the accident. it is stated the reasonable man, that is, a man of ordinary prudence is presumed to be both free from over apprehension and from over confidence. it is undoubtedly a pathetic case for the respondent because it is not known why the driver of the lorry was not..........by the learned counsel for the respondent 1 and 2 for first time in this appeal is required to be noticed,only to be rejected in limine.(d) motor vehicles act, 1988 - section 166 -quantum - fatal accident - claimants -just and reasonable - father, motherand brother - dependency - the deceased wasearning monthly income of rs. 3,000/- as typist cum-receptionist, as per the salary certificate issued by theemployer. the father aged 59 years, mother aged 46years and the brother aged 23 years . since the deceasedwas unmarried and the brother was a major. held - itis just and reasonable to deduct 50% of the income ofthe deceased towards personal expenses and if personalexpenses of the deceased, the monthly loss of dependencywould be rs. 1500/-. having regard to the age of theparents and taking average of the same, the appropriatemultiplier to be applied for determining the loss ofdependency would be 12. in addition, the claimants arealso entitled to a compensation under the conventionalheads such as 'loss of love and affection, 'loss of estate'and funeral expenses.appeal was partly allowed, awarding rs. 2,61,000/-together with interest @ 6% p.a. from the date of petition.

Judgment:

ORDER

6 RULE 1 - PLEADINGS - IN DEFENCE PLEA OF CONTRIBUTORY NEGLIGENCE - HELD - The plea of contributory negligence should be taken in the written statement before Tribunal. It is well settled that the burden of establishing the defence of contributory negligence is on the defendant who admits that on account of the conduct of the plaintiff, his negligence had gone into the background and it was the conduct of the plaintiff that resulted in the accident; it is not for the claimant to disprove it. In this case, there is neither pleading nor any proof of contributory negligence. Further, contributory negligence on the part of the deceased or the driver of the motor cycle cannot be inferred on the basis of evidence on record. ... The driver of the lorry was not examined by the owner or insurer of the vehicle. Therefore, an adverse inference can be drawn against them. Therefore, the plea of contributory negligence urged by the learned Counsel for the respondent 1 and 2 for first time in this Appeal is required to be noticed,only to be rejected in limine.

(D) MOTOR VEHICLES ACT, 1988 - SECTION 166 -QUANTUM - FATAL ACCIDENT - CLAIMANTS -JUST AND REASONABLE - FATHER, MOTHERAND BROTHER - DEPENDENCY - The deceased wasearning monthly income of Rs. 3,000/- as typist cum-receptionist, as per the salary certificate issued by theemployer. The father aged 59 years, mother aged 46years and the brother aged 23 years . Since the deceasedwas unmarried and the brother was a major. HELD - Itis just and reasonable to deduct 50% of the income ofthe deceased towards personal expenses and if personalexpenses of the deceased, the monthly loss of dependencywould be Rs. 1500/-. Having regard to the age of theparents and taking average of the same, the appropriatemultiplier to be applied for determining the loss ofdependency would be 12. In addition, the claimants arealso entitled to a compensation under the conventionalheads such as 'loss of love and affection, 'Loss of estate'and funeral expenses.

Appeal was partly allowed, awarding Rs. 2,61,000/-together with interest @ 6% p.a. from the date of petition.