Motor Accident Claims – Negligence Explained in Detail

Negligence is one of the most basic element that is mentioned by either parties whenever there is a motor accident. For example, A & B met an accident; A claims B was driving recklessly and B claims A was on the wrong side of the road. Both of them claim other being the negligent one causing the accident.

Hence, negligence is the foremost thing that is looked into when deciding the onus of compensation that is to be paid and fixing the responsibility of the accident.

Fixing negligence is easier said then done, for in motor vehicle cases it becomes quite difficult as most of the time both the parties would plead innocence and fix the responsibility of the negligence on the other party.

In the following article, we would be trying to understand –

  1. Negligence – What do we mean by it? Understanding various case laws.
  2. What constitute Negligence?
  3. Classes of Negligence
    1. Negligence Simpliciter
    2. Contributive Negligence
    3. Composite Negligence
    4. Self Negligence
  4. Miscellaneous Aspects of Negligence
  5. Doctrine of lost opportunity
  6. Other Issues Related to Negligence

1. Negligence – What do we mean by it? Understanding various case laws.

Negligence has not been mentioned anywhere in the Motor Vehicle Act. It has to understood by going through various Supreme Court of India Case laws that have given meaning to Negligence and have explained in detail as to what constitute negligence.

Case 1  – The Municipal Corporation Of Greater Bombay vs Shri Laxman Iyer And Anr on 27 October, 2003

  1. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do.
  2.  Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative.
  3. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances.
  4. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not.

Case 2 M.S. Grewal & Anr vs Deep Chand Sood & Ors on 24 August, 2001

  1. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do . ( Definition given in Blacks Law Dictionary).
  2. Clerk & Lindsell on Torts (18th Ed.) sets out four several requirements of the tort of negligence and the same read as below:

    1. (1) the existence in law of a duty of care situation, i.e. one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damage in suit on the class of person to which the claimant belongs by the class of person to which the defendant belongs is actionable;

      (2) breach of the duty of care by the defendant, i.e. that it failed to measure up to the standard set by law;

      (3) a casual connection between the defendants careless conduct and the damage;

      (4) that the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.

3. Classification of Negligence

Negligence is broadly classified into 4 main categories-

  1. Negligence Simpliciter
  2. Contributive Negligence
  3. Composite Negligence
  4. Self Negligence

We would be discussing each one the above in details –

3.1 Negligence Simpliciter

  1. It means that ONLY one party was negligent and because of that negligence other party suffered loss. Its known as negligence per se.
  2. Situations where negligence simpliciter are evoked are following; where doing any of these acts would be termed as NEGLIGENT-
    1.  Drunk & Driving
    2. Overloading
    3. Minor driving
    4. Driving vehicle without helment
    5. Poor maintenance of vehicle
    6. Murder happening in course of accident or public place
    7. Parking the vehicle in high road
    8. Projective arms & elbows outside the window

3.1.2 – Compensation Claim

To Claim the compensation under Negligence Simpliciter one has to rely on Section 166 of Motor Vehicle Act and not Section 140 of the same act.

  1. The burden of proof is on the claimant & he is duty bound to prove the fault of the driver.  Case – Minu B. Mehta And Another vs Balkrishna Ramchandra Nayan And … on 28 January, 1977

3.1.3 What kind of evidence is Required u/s 166?

Is it strict proof of evidence like a criminal trial (i.e. proof beyond all reasonable doubt) or preponderance of possibilities?

  1. It was answered in Kusum & Ors vs Satbir & Ors on 2 March, 2011
    • Where it was held – its based on preponderance of Possibilities. 

3.1.4 Drunk & Driving Case –

This is covered in detail in a separate blog post – .

3.2 – Contributive Negligence

Here, both the parties where either equally or unequally responsible for the accident. For example, A car is parked in No Parking Zone, B Hits the car of A while reversing. Here, both are negligent and compensation has to be divided in ratio of their fault. It might be 50/50 or 70/30, which would depend on other circumstances & has to be decided.

Another example, A driving a bike rashly hits a pedestrian who is drunk and walking haphazardly. They both hit each other. Both are negligent & its a case of Contributive negligence.

  1. Case – T. O. Anthony vs Karvarnan And Others on 1 February, 2008
    • It was held there is commensurable reduction in compensation when both victim & driver are negligent. Victim negligent 30% and driver 70%. Then 30% of compensation to be reduced that is payable by driver.
  2. Contributive Negligence if Minor Driving 
    • Simply that a minor driving there can be NO  Finding of contributive negligence there should be a finding that minor contributed to negligence. – held in
  3. Not wearing Helmet – Contributive Negligence
    • We know that wearing helmet saves lives. Not wearing one can result a simple minor injury case to a fatal head injury case.
    • It has been held that not wearing helmet would automatically contribute to 15% of contributive negligence. Hence, a bike riding without helmet meets an accidence.
    • Case – R.Mallika vs A.Babu on 8 June, 2015
  4. 3 persons riding in 2 wheeler – no automatic inference of contributive negligence but a casual connection.
  5. Vehicle parked in the ROAD – Case 2018 V6 SCC 765 nishant singh Vs oriental insurance.  = but when lorry parked without reflector – total negligence
    1. Nishan Singh vs Oriental Insurance Company Ltd. … on 27 April, 2018 

3.3  Composite Negligence

This where most people, advocate and even some judges get confused.

  1. Composite Negligence is defined as – where an injury is caused by 2 or more parties and claimant does not know who can be sued.
  2. example – A rides in bus A  driving rashly and collides with Bus B which is also driving rashly. A gets hurt. Now, A does not know whom to sue, he can sue either both or either one of them and that one. Has to pay the complete compensation.
  3. Contributory negligence would be between A Bus and B Bus.
  4.  In Composite Negligence – there is no fault of victim.

3.3.1 Difference between Composite & Contributory Negligence

This has been elaborately and clearly explained in –  Pawan Kumar & Anr vs M/S Harkishan Dass Mohan Lal & Ors on 29 January, 2014

  1. Winfield & Jolowicz on Tort (Chapter 21) (15th Edition, 1998). It would be appropriate to notice the following passage from the said work:-

    “WHERE two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury the position is more complicated. The law in such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It is greatly to the plaintiff’s advantage to show that that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role.

  2. T. O. Anthony vs Karvarnan And Others on 1 February, 2008
    1. In Paragraph 6 & 7

    2. “6. “Composite negligence” refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.

      7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of “composite negligence” will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.”

3.3.2 Liability in Composite Negligence –

Here, as mentioned above is Jointly & Severally – Hence, a claimant is free to choose any vehicle A or B or both to pay compensation.  The claimant can sue anyone.  One insurance would pay complete compensation and would recover the same from the vehicle owner by filling a separate suit.

  1. Case – Khenyei vs New India Assurnace Co.Ltd.& Ors on 7 May, 2015

    •  It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the court.

3.3.3 Burdern of Proof in Composite Negligence –

SC Mahindra nath vs mahilarappa 2008 13 s 198 – evidence of driver of colliding vehicle is important.

3.4 Self Negligence

example, A is driving drunk and hits a tree. Causing injury to himself only. This is self Negligence.

  1. There can be no claim petition under 3rd party compensation.
  2. Only under Personal Accident coverage – and even PA coverage is outside 3rd party coverage.
  3. Case  Shivaji vs Divisional Manager United India Insurance on 9 August, 2018

    • A claim petition u/s 163A of Motor Vehicle Act is maintainable the insurer cannot raise any defense of negligence on the part of the victim to counter a claim for compensation.

    • The above case followed the reasoning mentioned by 3 judges bench that cleared the air about Section 163 A in
      United India Ins.Co.Ltd. vs Sunil Kumar on 24 November, 2017
    • What I have understood from the above is – example – A is driving rashly he hits B (a truck) from behind and is killed. Can his heirs claim 3rd party compensation from the insurer of Truck?  The answer by the above SC decisions is YES. The heirs of A are liable to get compensation u/s 163A.