Contributory negligence must be specifically pleaded, and failure to substantiate claims of shared liability can invalidate reductions in compensation awarded.

JUDGMENT :

K.MANMADHA RAO, J.

1. This appeal is filed by the appellants/claimants under section 173(1) of the Motor Vehicles Act, 1988 (‘the MV Act’ for short) to modify the judgment and award dated 31.12.2018, in MVC No.4245/2017 on the file of the Small Causes and Motor Accident Claims Tribunal, at Bengaluru (‘the tribunal’ for short) and to enhance the compensation amount.

2. The appellants/respondents herein are the claimants/respondents before the tribunal. Respondent No.1 is the Insurance Company and Respondent No.2 is the owner of the Canter-offending vehicle.

3. The petitioners/claimants filed claim petition under section 166 of the MV Act, seeking compensation of Rs.50,00,000/- from the respondents jointly and severally on account of death of Anil Kumar P. @ Poola Thimmappagari Anilkumar in road traffic accident.

4. The brief facts of the case are as under:-

On 11.07.2017 at about 6:30 p.m., while the deceased was traveling towards Bengaluru from Kanakapura. He was riding the car bearing registration No.KA-01-AF-7190, slowly and consciously on the left side of the road. Near HP Petrol bunk at Thoppaganahalli, the driver of the canter bearing No.TN-66-C-4487 (insured vehicle), drove in a rash and negligent manner and dashed against the deceased car, due to which deceased sustained fatal injury and died on the spot. The postmortem examination was done and the last rite of the deceased was performed by the claimants. The claimants submitted that prior to the accident the deceased was working as drive and earning Rs.40,000/- per month. It is pleaded that the accident occurred solely due to the rash and negligent driving of the driver of the insured vehicle. Therefore, respondents are jointly and severally liable to pay compensation.

5. After service of notice, the Insurance Company appeared before the Tribunal through its advocate and filed its written statement opposing the claim. It admitted that it had issued a valid insurance policy for the offending vehicle and also admitted the accident and the death of the deceased due to injuries. However, it denied that the accident occurred due to sole negligence of the driver of the insured vehicle. It is also contended that the deceased himself was negligent as he was allegedly driving in a zigzag manner under the influence of alcohol. It further claimed that the driver of the offending vehicle did not possess a valid driving licence, which amounted to a violation of the policy conditions and therefore, sought dismissal of the petition.

6. Based on the pleadings the tribunal framed issues and got marked the documents. The tribunal partly allowed with cost and 50% of the amount has been reduced in view of the contributory negligence on the part of the claimants and awarded the compensation of Rs.9,22,200/- with interest of 9% per annum. The respondents were jointly and severally made liable to pay the compensation amount. However, the primary liability to pay compensation was fastened on the respondent No.2/Insurance Company.

7. The learned counsel for the appellants/claimants would contend that The appellants challenge the finding of the Tribunal fastening 50% contributory negligence on the deceased, contending that such a finding is unsupported by proper pleadings, evidence, or records. The owner of the offending vehicle did not appear, and the insurer failed to specifically plead contributory negligence against the deceased, which is a mandatory requirement in law. In the absence of such specific pleading, the Tribunal erred in accepting the defence and in relying upon the evidence of the dri