Mere Failure To Avoid Collision By Taking Some Extraordinary Precaution Does Not In Itself Constitute Contributory Negligence: Supreme Court

The Supreme Court observed that mere failure to avoid the collision by taking some extraordinary precaution, does not in itself constitute negligence.

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, the bench comprising Justices Hemant Gupta and V. Ramasubramanian observed.

In this case, the High Court while upholding a finding of contributory negligence in a motor accident compensation claim, observed that if the deceased driver of the car had been vigilant and driving the vehicle carefully following the traffic rules, the accident would not have happened.

In appeal, these observations were challenged. The court agreed with the appellant that these findings are not based on any evidence as 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.

"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. 8 Karmasey Kunvargi Tak and Others this Court quoted a decision of the High Court of Australia in Astley v. Austrust Ltd. , 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 , 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."

The court therefore reversed the finding of the Tribunal and the High Court on the question of contributory negligence.

In this case, the High Court had awarded a sum of Rs.17,34,156 as compensation. Allowing the appeal, the court granted a compensation of Rs.50,89,960 to the claimants

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