Case: SMT. K. ANUSHA &amp; ORS Vs. REGIONAL MANAGER, SHRIRAM GENERAL INSURANCE  CO.LTD

4. On 10.02.2011, the car in which the husband of the 1st appellant (and the father of the appellant nos. 2 and 3) was travelling, dashed against a lorry that was going in front, when the driver of the lorry allegedly stopped it all of a sudden without any signal or indicator. The victim suffered serious injuries and died on the spot.5. Claiming that the accident occurred due to the rash and negligent driving on the part of the driver of the lorry, the appellants filed a claim before the Tribunal, seeking compensation in a sum of Rs.54,10,000/-.6. According to the appellants, the victim was 32 years of age at the time of the accident and that he was employed as a Senior Design Engineer in a company earning a sum of Rs.45,000/- per month with bright future prospects.7. On the issue relating to the cause of the accident, the Tribunal came to the conclusion on perusal of the police records, including the complaint, spot sketch etc., that the lorry into which the car collided, had been parked without putting any indicator or signal on NH-4. But at the same time the Tribunal concluded, on the basis of the final report filed by the police against the drivers of the lorry as well as the car, that the driver of the car was also equally negligent. Therefore, the Tribunal first held that the accident occurred due to the contributory negligence on the part of the drivers of both vehicles and fixed 50% as the factor of contribution.8. On the quantum of compensation, the Tribunal arrived at the annual income of the deceased as Rs.2,78,700/-, after excluding certain special allowances. After adding 10% to the said income on the ground that the deceased had a bright future, the Tribunal fixed the loss of annual income at Rs.3,09,900/-. From the said amount, the Tribunal deducted one-third and applied a multiplier of 16 on the balance annual income of Rs.2,06,600/-. The amount so arrived at by the Tribunal was Rs.33,05,600/- to which the Tribunal added a sum of Rs.10,000 each towards loss of consortium, love and affection and expectation of love. The Tribunal added Rs.5000/- each for the transportation of the body and for funeral expenses and arrived at a total amount of Rs.33,45,600/-. Since the Tribunal held the driver of the car equally negligent contributing to the accident, the Tribunal divided the aforesaid amount by two and awarded a compensation of Rs.16,72,800/-. On the said amount, interest was directed to be paid at 6% per annum.9. The Insurance Company did not challenge the award. But the claimants filed an appeal before the High Court of Karnataka. By the judgment impugned in this appeal the High Court upheld the finding of the Tribunal relating to contributory negligence. On the quantum of compensation, the High Court took the gross annual income for the assessment year 2009-10, which was Rs.3,36,427/-. After deducting income tax of Rs.32,368/- from the said amount, the High Court arrived at the net income as Rs.3,04,060/-. From the said amount the Tribunal deducted one-third towards personal expenses and arrived at the income available for the family as Rs.2,02,707/-. After applying the multiplier of 16, the High Court re-determined the loss of dependency at Rs.32,43,312/-. To this amount, the High Court added Rs.1,00,000/- towards loss of consortium, Rs.75,000/- towards loss of love and affection and Rs.25,000/-towards loss of estate and Rs.25,000/- funeral expenses. Thus the High Court arrived at the compensation payable as Rs.34,68,312/. Since 50% was fixed as contributory negligence, the High Court awarded half of the said amount namely, a sum of Rs.17,34,156, payable with interest at 9% per annum. Aggrieved by the said judgment, the claimants are on appeal before us.

Reasoning:
11. The first grievance of the appellants about the finding of contributory negligence is liable to be sustained for three reasons namely, (i) that even according to the Tribunal and the High Court, the spot where the lorry was parked, as indicated in Exhibits P-1 to P-6 (FIR, complaint, spot magazar etc.) and Exhibit P-22 (spot sketch), was not a parking place; (ii) that according to the High court, the driver of the lorry ought to have parked the vehicle on the left side of the road by giving proper indication/signal, but it was not done; and (iii) that as per the finding of the High court, the accident occurred at about 4.30 A.M. when the lighting should have been poor.12. The view expressed by the High Court to effect that if the driver of the car had been vigilant and driving the vehicle carefully following the traffic rules, the accident would not have happened, is presumptuous and not based on any evidence. There was nothing on record to indicate that the driver of the car was not driving at moderate speed nor that he did not follow traffic rules. On the contrary, the High Court holds that if the lorry had not been parked on the highway, the accident would not have happened even if the car was driven at a high speed.13. Therefore, the entire reasoning of the High Court on Issue No.1 is riddled with inherent contradictions. To establish contributory negligence, some act or omission, which materially contributed to the accident or the damage, should be attributed to the person against whom it is alleged. In Pramodkumar Rasikbhai Jhaveri vs. Karmasey Kunvargi Tak and Others (2002) 6 SCC 455  this Court quoted a decision of the High Court of Australia in Astley v. Austrust Ltd.(1999) 73 ALJR 403 , to hold that …where, by his negligence, one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence, if that other acts in a way which, with the benefit of hindsight is shown not to have been the best way out of the difficulty. In fact, the statement of law in Swadling v. Cooper 1931 AC 1 , that …the mere failure to avoid the collision by taking some extraordinary precaution, does not in itself constitute negligence…, was also quoted with approval by this Court. Therefore, we are compelled to reverse the finding of the Tribunal and the High Court on the question of contributory negligence.14. On the second question, the Tribunal merely allowed 10% as additional weightage, for the reason that the deceased had a bright future. But as held by this Court in National Insurance Company Limited vs. Pranay Sethi (supra), the appellants were entitled to an addition of 50% towards future prospects. Paragraph 59.3 and 59.4 of Pranay Sethi read as follows:-59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.