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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