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

Excerpt:
.....the lorry by its driver. ;(d) civil procedure code, 1908 - 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. .............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 @.....

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.