Uttar Pradesh State Road Transport Corporation vs Subhash & Anr
- Court
- Delhi High Court
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of decision: 13 August 2026
# CNR No. DLHC011633722013
+ MAC.APP. 963/2013
UTTAR PRADESH STATE ROAD TRANSPORT CORPORATION
.....Appellant
Through: Mr. Shadab Khan & & Mr. Waseem
Ahmad, Advocates (through VC).
versus
SUBHASH & ANR .....Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J (ORAL)
1. This appeal has been filed by appellant-Corporation assailing the
rd
impugned award dated 03 August 2013 passed by the Motor Accident
Claims Tribunal [‘ MACT/Tribunal ’], Rohini Courts, Delhi, in MACT No.
1187/2008, whereby compensation of Rs. 9,29,116 /- along with interest @
7.5% per annum was awarded.
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2. The accident occurred on 19 May 2007 at about 04.00 a.m. when the
respondent no. 1, Mr. Subash , was travelling along with his wife, Manisha ,
and his daughter, Kajal , from Aligarh to Delhi in their Indica car driven by
the driver, Shri Fauzdar . When they reached near Darau More , it was alleged
that the offending vehicle, a bus of appellant-Corporation, driven by the
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driver at high speed came from the opposite direction and collided with the
car, resulting in the death of Manisha .
3. Mr. Shadab Khan , counsel for appellant-Corporation, contends that
since it was a head on collision, contributory negligence will have to be
ascertained relying upon the decision of the Hon’ble Supreme Court in Bijoy
Kumar Dugar vs Bidyadhar Dutta & Ors , 2006 3 SCC 242.
4. Contributory negligence, in tort law, contemplates a situation where a
person’s own negligence has materially contributed to the harm suffered,
thereby warranting apportionment of liability to the extent of such
negligence. The Supreme Court in Municipal Corporation of Greater
Bombay v. Laxman Iyer , 2003 (8) SCC 731 held as under:
“ 6. The plea which was stressed strenuously related to
alleged contributory negligence. Though there is no
statutory definition, in common parlance “negligence” is
categorised as either composite or contributory. It is first
necessary to find out what is a negligent act. 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 be obligated to, or by doing
something which a prudent or reasonable man would not
do. Negligence does not always mean absolute
carelessness, but want of such a degree of care as is
required in particular circumstances. 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. Negligence means either subjectively a
careless state of mind, or objectively careless conduct.
Negligence is not an absolute term, but is a relative one; it
is rather a comparative term. No absolute standard can be
fixed and no mathematically exact formula can be laid
down by which negligence or lack of it can be infallibly
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measured in a given case. 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. 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. The omission to do what the
law obligates or even the failure to do anything in a
manner, mode or method envisaged by law would equally
and per se constitute negligence on the part of such person.
If the answer is in the affirmative, it is a negligent act.
Where an accident is due to negligence of both parties,
substantially there would be contributory negligence and
both would be blamed. In a case of contributory negligence,
the crucial question on which liability depends would be
whether either party could, by exercise of reasonable care,
have avoided the consequence of the other's negligence.
Whichever party could have avoided the consequence of the
other's negligence would be liable for the accident. If a
person's negligent act or omission was the proximate and
immediate cause of death, the fact that the person suffering
injury was himself negligent and also contributed to the
accident or other circumstances by which the injury was
caused would not afford a defence to the other.
Contributory negligence is applicable solely to the conduct
of a plaintiff. It means that there has been an act or
omission on the part of the plaintiff which has materially
contributed to the damage, the act or omission being of
such a nature that it may properly be described as
negligence, although negligence is not given its usual
meaning. (See Charlesworth on Negligence, 3rd Edn., para
328.) It is now well settled that in the case of contributory
negligence, courts have the power to apportion the loss
between the parties as seems just and equitable.
Apportionment in that context means that damage is
reduced to such an extent as the court thinks just and
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equitable having regard to the claim shared in the
responsibility for the damage. But in a case where there has
been no contributory negligence on the part of the victim,
the question of apportionment does not arise. Where a
person is injured without any negligence on his part but as
a result of the combined effect of the negligence of two
other persons, it is not a case of contributory negligence in
that sense. It is a case of what has been styled by Pollock as
injury by composite negligence. (See Pollock on Torts, 15th
Edn., p. 361.) ”
( emphasis supplied )
5. Further, the onus is on Insurance Company or the party alleging
contributory negligence to prove through cogent evidence that the
claimant/victim was negligent. Reliance in this regard may be placed on
Supreme Court’s observations in Yashwant Krishna Kumbar v. Divisional
Manager , United India Insurance Co. Ltd. SLP (C) NO. 22599/2024 in
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order dated 25 November 2025, where the Supreme Court was adjudicating
an appeal filed by the pillion rider on the ground that contributory negligence
of 50% was attributed by the Tribunal and High Court. Allowing the pillion
rider’s appeal, the Supreme Court held as under:
“ 16. In cases where contributory negligence is sought to be
attributed to a pillion rider in a motor vehicle accident, the
burden squarely lies on the party alleging such negligence
to establish, by cogent material, that any act or omission on
the part of the pillion rider contributed to the occurrence of
the accident. In the absence of such proof, no finding of
contributory negligence can be sustained against a pillion
rider.
17. This Court is therefore of the considered view that the
Tribunal committed a manifest error in reducing the
compensation by 50% on the ground of alleged
contributory negligence of the claimant. The insurer, on
whom the burden squarely rested, led no evidence to
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establish even remote negligence attributable to the
claimant. Consequently, the finding of contributory
negligence cannot be sustained and is liable to be set aside,
restoring the claimant’s entitlement to the full measure of
compensation determined in accordance with law.”
(emphasis added)
6. It is settled law that every case of a head-on collision does not
automatically result in a finding of 50% contributory negligence. The
question of contributory negligence has to be determined on the basis of the
facts and circumstances of each case and the evidence available on record.
Proceedings before the MACT are in the nature of an inquiry, and negligence
is required to be established on the touchstone of preponderance of
probabilities. Reliance in this regard can be placed on the following
judgments:
6.1. T.O. Anthony v. Karvarnan , (2008) 3 SCC 748, wherein the Supreme
Court dealt with a case involving a head-on collision between a KSRTC bus
and a private bus, wherein the Tribunal had assessed composite negligence at
50% each on the drivers of both buses. The Hon’ble Supreme Court, while
explaining the distinction between composite negligence and contributory
negligence, observed as under:
“ 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
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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.”
( emphasis supplied )
6.2. Reliance can also be placed on the judgment of Supreme Court in Usha
Rajkhowa v. Paramount Industries , (2009) 14 SCC 71, wherein the Court
dealt with a case involving a collision between a truck and a car, and the
Tribunal had attributed 50% contributory negligence to the driver of the car.
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The Supreme Court, while considering the principles governing contributory
negligence and the burden of proving the same, held as under:
“20. The question of contributory negligence on the part
of the driver in case of collision was considered by this
Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey
Kunvargi Tak [(2002) 6 SCC 455 : 2002 SCC (Cri)
1355] . That was also a case of collision between a car
and a truck. It was observed in SCC p. 458, para 8:
“ 8 . … The question of contributory negligence
arises when there has been some act or
omission on the claimant's part, which has
materially contributed to the damage caused,
and is of such a nature that it may properly be
described as ‘negligence’. Negligence
ordinarily means breach of a legal duty to care,
but when used in the expression ‘contributory
negligence’ it does not mean breach of any
duty. It only means the failure by a person to
use reasonable care for the safety of either
himself or his property, so that he becomes
blameworthy in part as an ‘author of his own
wrong’.”
21. This Court further relied on an observation of the
High Court of Australia in Astley v. Austrust
Ltd. [(1999) 73 ALJR 403] to the following effect:
“A finding of contributory negligence turns on
a factual investigation whether the plaintiff
contributed to his or her own loss by failing to
take reasonable care of his or her person or
property. What is reasonable care depends on
the circumstances of the case. In many cases, it
may be proper for a plaintiff to rely on the
defendant to perform its duty. But there is no
absolute rule. The duties and responsibilities of
the defendant are a variable factor in
determining whether contributory negligence
exists and, if so, to what degree. In some cases,
the nature of the duty owed may exculpate the
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plaintiff from a claim of contributory
negligence; in other cases, the nature of the duty
may reduce the plaintiff's share of
responsibility for the damage suffered; and in
yet other cases, the nature of the duty may not
prevent a finding that the plaintiff failed to take
reasonable care for the safety of his or her
person or property. Contributory negligence
focuses on the conduct of the plaintiff. The duty
owed by the defendant, although relevant, is
one only of many factors that must be weighed
in determining whether the plaintiff has so
conducted itself that it failed to take reasonable
care for the safety of its person or property.”
22. Keeping these principles in mind, we find that there
was absolutely no evidence to suggest that there was
any failure on the part of the car driver to take any
particular care or that he had breached his duty in any
manner. Such breach on his part had to be proved by the
insurance company as it was its burden and for that, the
panchnama of the spot, showing tyre marks caused by
brakes, and the panchnama of the damaged car and the
truck could have been brought on record. The insurance
company has obviously failed to discharge its burden.
We, therefore, respectfully follow the abovementioned
judgment.”
( emphasis supplied )
6.3. In Jiju Kuruvila v. Kunjujamma Mohan , (2013) 9 SCC 166, the
Supreme Court similarly considered a case involving a head-on collision
between a car and a bus coming from the opposite direction. In that case, the
Tribunal had apportioned the liability at 50:50. The Supreme Court, however,
held as under:
“ … 20.3. Ext. A-1, FIR registered by Pampady Police
against the bus driver P.C. Kurian under Sections 279,
337 and 304-A IPC shows that the accident occurred
due to rash and negligent driving on the part of the bus
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driver. After investigation, the police submitted a
charge-sheet (Ext. A-4) against the bus driver under
Sections 279, 337 and 304-A IPC with specific
allegation that the bus driver caused the death of Joy
Kuruvila due to rash and negligent driving of the bus on
16-4-1990 at 4.50 p.m. In view of the direct evidence,
the Tribunal and the High Court held that the accident
occurred due to rash and negligent driving on the part
of the bus driver.
20.4. There is no evidence on record to suggest any
negligence on the part of the deceased. Ext. B-2 “scene
mahazar” also does not suggest any rash and negligent
driving on the part of the deceased.
20.5. The mere position of the vehicles after accident, as
shown in a scene mahazar, cannot give a substantial
proof as to the rash and negligent driving on the part of
one or the other. When two vehicles coming from
opposite directions collide, the position of the vehicles
and its direction, etc. depends on a number of factors
like the speed of vehicles, intensity of collision, reason
for collision, place at which one vehicle hit the other,
etc. From the scene of the accident, one may suggest or
presume the manner in which the accident was caused,
but in the absence of any direct or corroborative
evidence, no conclusion can be drawn as to whether
there was negligence on the part of the driver. In
absence of such direct or corroborative evidence, the
Court cannot give any specific finding about negligence
on the part of any individual.
…
21. In view of the aforesaid, we, therefore, hold that the
Tribunal and the High Court erred in concluding that
the said accident occurred due to the negligence on the
part of the deceased as well, as the said conclusion was
not based on evidence but based on mere presumption
and surmises .”
( emphasis supplied )
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6.4. In Kiran v. Sajjan Singh , (2015) 1 SCC 539, the Supreme Court
considered a case involving a head-on collision between a motorcycle and a
tractor. The Tribunal had initially attributed 50% contributory negligence to
each vehicle, while the High Court apportioned the negligence at 75% to the
tractor driver and 25% to the motorcycle rider. In appeal, the Supreme Court,
upon examining the evidence on record, held as under::
“ 17. The observations made by this Court in Jiju
Kuruvila [Jiju Kuruvila v. Kunjujamma Mohan, (2013)
9 SCC 166 : (2013) 3 SCC (Cri) 849] surely apply to the
fact situation on hand. Upon thorough examination of
the facts and legal evidence on record in the present
case, it cannot be said that the appellant father was rash
and negligent just on the assumption made by the
Tribunal that the collision occurred in the middle of the
road since the two vehicles were approaching from
opposite directions of the road. However, the only
aspect of the case on hand that we can reasonably
assume is that the appellant father would have taken
sufficient caution while riding the motorcycle since he
was travelling with his two minor children (appellant
minors). Further, upon examining the evidence
produced on record, there is no proof showing
negligence on the part of the appellant father. Thus in
our view, the contributory negligence apportioned by
the High Court at 25% on the appellant father and 75%
on the driver of the offending tractor is erroneous
keeping in view the legal principles laid down by this
Court on this aspect in the above-referred case. Thus,
we are of the firm conclusion that the negligence is
wholly on the part of the driver of the offending tractor
since he was driving the heavier vehicle. Therefore, we
set aside the 25% contributory negligence on the part of
the appellant father as apportioned by the High Court .”
( emphasis supplied )
7. Furthermore, the reliance placed on Bijoy Kumar Dugar ( supra ) is
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erroneous as that case does not establish a rule that every head-on collision
entails 50% contributory negligence. It upheld an evidence-based factual
finding of equal negligence in the particular circumstances of that case. The
subsequent judgments of the Hon’ble Supreme Court, including T.O.
Anthony ( supra ), Usha Rajkhowa ( supra ), Jiju Kuruvila ( supra ), and Kiran
( supra ), make it clear that contributory negligence cannot be presumed
merely from the factum of a head-on collision, and must be established on the
basis of evidence demonstrating a failure on the part of the claimant/victim to
exercise reasonable care. The extent of such negligence, if proved, must
thereafter be determined having regard to the facts and circumstances of each
case.
8. The following principles can be culled out from the abovementioned
judgments:
I. Head-on collision does not, by itself, establish
contributory negligence: The mere fact that two vehicles
collided head-on cannot lead to an automatic inference that
both drivers were equally negligent. Contributory negligence
must be determined from the evidence and surrounding
circumstances of each case.
II. Burden lies on the party alleging contributory
negligence : The insurer or the party alleging contributory
negligence must establish, by cogent evidence, the specific
act or omission attributable to the claimant which materially
contributed to the accident or the resultant injury. In the
absence of such evidence, no deduction can be made on the
ground of contributory negligence.
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III. Contributory negligence requires proof of failure to
exercise reasonable care:
There must be evidence showing that the claimant failed to
take reasonable care for his or her own safety and that such
failure materially contributed to the accident or damage
suffered. Mere involvement in, or presence during, the
accident does not amount to contributory negligence.
IV. Apportionment must be evidence-based and
proportionate: Even where contributory negligence is
established, the percentage of negligence cannot be fixed
mechanically at 50%. The apportionment must correspond to
the degree to which the claimant’s negligent conduct
contributed to the accident or resulting damage.
9. In view of the foregoing discussion, it would be necessary to examine
the testimony of respondent no. 1/ PW-1 , who was an eye-witness to the
accident. He stated that the offending vehicle was being driven in a zigzag
manner and came from the opposite direction and rammed into his car. He
further stated that the “ impact was so severe and forceful that my car was
completely bent .” He also stated that his wife, who was sitting in the back
seat, died on the spot, while his seven-year-old daughter, Kajal , sustained
grievous injuries.
10. Notably, despite being afforded an opportunity, the
appellant-Corporation did not cross-examine PW-1 , as recorded by the
rd
Tribunal on 3 April 2012. This, by itself, would have been sufficient to
support the finding on the issue of negligence. There is, however, another
relevant circumstance, namely, that an FIR was registered against the driver
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of the offending vehicle, pursuant to which a charge-sheet was filed. There is
nothing on record to indicate that the said charge-sheet was challenged or
otherwise disputed by appellant-Corporation.
11. It has to be noted that the driver gave a counter story where he stated
that he was driving at a normal speed and it was the Indica car which came
from the wrong side and dashed against the bus. The driver Bharat Singh
testified as RW-1 and was extensively cross-examined by counsel for the
claimant. He did admit that the accident took place at 04.00 am in the morning
and there was not much traffic on the road.
12. In these circumstances, the MACT cannot be said to have erred in
holding that the accident occurred due to the negligence of the driver on the
basis of the preponderance of probabilities and, accordingly, fastening
liability upon appellant-Corporation. This Court finds no merit in the plea of
appellant-Corporation, particularly when it has failed to establish
contributory negligence on the part of the deceased. The eye-witness, who
was the deceased’s husband, could have been cross-examined on this aspect if
appellant-Corporation intended to establish contributory negligence. No such
material having been brought on record, the plea of contributory negligence
cannot be sustained.
13. Accordingly, the appeal is dismissed. Pending applications, if any, are
rendered infructuous.
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14. On 25 October 2013, this Court directed the appellant to deposit the
entire compensation amount before the Registrar General of this Court, out of
which 70% was directed to be released to the claimants. Since the appeal has
now been dismissed, the balance amount lying deposited with the Registrar
General of this Court shall be released to the claimants as a lump-sum amount
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upon liquidation of all the FDRs.
15. Accordingly, the appeal is dismissed.
16. Pending applications, if any, are rendered infructuous.
17. Judgment be uploaded on the website of this Court.
(ANISH DAYAL)
JUDGE
AUGUST 13, 2026/vs/ zb
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