DOCTRINE OF APPORTIONMENT OF DAMAGES IN INDIA

DOCTRINE OF APPORTIONMENT OF DAMAGES IN INDIA

Author : Akshara Vijayakumar

What is Contributory negligence?

When the plaintiff by his own want of care contributes to the damaged caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of Contributory Negligence.

In law of tort, when plaintiff sue a case against defendant for some specific torts, the defendant can defense against plaintiff in many ways.

• Contributory negligence
• Volenti non fit injuria

“Contributory negligence” only means the failure of a person to take reasonable care for himself or his property. An example for contributory negligence: – There were a company named Excel TV. And Laura, an upcoming artist (Singer) participated in a reality show “Back to nature” in a place where there is no habitat and no proper facilities are provided. The reality show was to be conducted for 12 weeks. But within 2 weeks after starting the programme Laura developed rashes and pain in her body and she was hospitalized. Owing to the infection she developed Acute Laryngitis. And Laura filed a suit against defendant for negligence. But Defendant claimed that they were no specific obligation towards Laura as the arrangement was purely commercial in nature. And she didn’t take any precautionary measures, so she is guilty of contributory negligence. If suppose the plaintiff is negligent, but his negligence doesn’t contribute to the damage suffered by him, the defense of contributory negligence cannot be pleaded.

“Volenti non fit injuria” is a complete defense in a case of negligence which totally makes the defendant free from the liability. In Volenti non fit injuria, the plaintiff may be volens but at the same time exercising due care for his own duty. Moreover defendant’s negligence may rule out the application of the defense.

In India, there is no Central Legislation corresponding to the Law Reform (Contributory Negligence) Act, 1945 of England. The position brought about by the Law Reform Act in England is very just and equitable. Various cases have been come before High Court of India. On the lines of the Law Reform Act, the Doctrine of apportionment of damages has been followed and contributory negligence has been considered as a defense to the extent the plaintiff is at fault. 

There are no.of cases regarding this. They are as follows,

In Rural Transport Service v. Bezlum Bibi, The conductor invited passengers to travel on the roof of the bus. Because the bus was overloaded with passengers. To overtake a cart, the driver over turned the bus abruptly to right side of the road. As the driver turned on the kutcha portion of the road, a passenger names Tahir Sheikh, was hit by a branch of a tree and fell down from the bus and got seriously injured and later died. In an action by the bus driver, the mother of the deceased claimed compensation. And it was held in Calcutta High Court. The defense counsel has claimed that there was also contributory negligence on the part of the deceased because he might have knew that travelling on the roof of the bus is a risky element and still he travelled upon the roof of the bus. So that he has taken the risk. Finally, the court held that even though the deceased have made contributory negligence there is a fault in defendant side also. So the compensation payable by the defendant was reduced by 50% and they were asked to pay Rs.8000 instead of Rs.16, 000.

In Subhakar v. Mysore State Road Transport Corporation, the Claimant/appellant was going on a cycle. Suddenly the cycle was turned to the right side of the road. He was hit by the respondent’s bus and he has injured to his legs and hospitalized for 2 1/2 months. And the court held that, as there is contributory negligence among the claimant, and both the parties had contributed to the accident by their negligence and therefore the compensation payable to the claimant was reduced by 50%.  

In Oriental F. and G. Ins. Co. v. Manjit Kaur, a scooterist, because of his own negligence, rashly crashed head on into a car going on the left side of the road and died. The negligence was completely on the part of scooterist. So the claim for compensation to his widow and children was dismissed.

The Supreme Court has said that, in calculation of compensation, the age of a deceased will not be a relevant factor. But the age of a claimant would be a relevant factor in case of parents or any others were claimant. 

Rules to determine Contributory negligence  

There are 2 rules to determine whether the case is contributory negligence or not. They are as follows:-

• Here the plaintiff need not owe a duty of care to the other party. What has to be proved is that, the plaintiff did not take care of his own safety and contributed his own damage.

In Bhagwat Sarup v. Himalaya Gas Co., the defendant company sent their deliveryman to deliver the gas cylinder to the plaintiff’s house. The cap of the cylinder was imperfect. So the deliveryman asked the plaintiff to get an axe to open it. And he had opened. But the gas leaked from there and caused fire. Members from plaintiffs has died. And also some of his neighbors also caused injuries. Here, it was held that the negligence was completely done by deliveryman. It was also observed that, Plaintiff has given the axe to deliveryman, so there is contributory negligence. But the mere fact is that even though plaintiff has given the axe, but there is no contributory negligence because deliveryman is a well-trained person and was supposed to know the damages caused being done by him.

*) It has also to be proved that it is his lack of care which contributed to the resulting damage. And it is not enough to prove that the plaintiff did not take due care of his own duty. If the plaintiff had been careful and the plaintiff’s negligence is not the operative cause of accident, the defense of contributory negligence cannot be pleaded even if the defendant’s negligence would have caused the same damages. For example, the plaintiff is negligent by riding the motor cycle without brakes and helmet. Meanwhile the defendant targeting at a bird and negligently shoots the bird and injures the plaintiff. Here, the plaintiff’s negligent cannot be considered as Contributory negligence. 

Contributory Negligence cannot be pleaded in certain Motor Vehicle Accidents.

In Agya Kaur v. Pepsu Road Transport Corporation, in a rickshaw there were 3 adults and a child on it. The rickshaw was driven carefully and correctly by the driver. But unfortunately, the rickshaw was hit by a bus. The bus was driven at a high speed and also it was on the wrong side of the road. It was held that the negligence was done by the driver only. But in spite of the fact, the rickshaw was overloaded. So that there was no contributory negligence on the part of rickshaw driver. And because of the fact, it did not contribute to the occurrence of the accident.

Reference

A Book, Law of Tort written by R.K.Bangiya