Holding

The deduction of 50% compensation on the basis of contributory negligence is perverse and cannot be sustained; the claimants are entitled to full compensation.

Summary

In 2013 a car collided with a 14‑wheeler that had been abandoned in the middle of a highway without any warning lights or markers, killing the car's driver and three passengers while one passenger, Smt. Sushma, survived with injuries. The claimants filed compensation claims under the Motor Vehicles Act against the owner and insurer of the offending truck. Both the Motor Accident Claims Tribunal and the Karnataka High Court reduced the award by 50% on the ground of contributory negligence, holding that the car driver also bore responsibility. The Supreme Court, exercising its power under Article 136, held that the finding of contributory negligence was perverse because the truck’s unlawful abandonment created a hazard that the car driver could not reasonably avoid in pitch‑dark conditions. Consequently, the Court set aside the 50% deduction, directing full compensation to the claimants and holding the truck’s owner and insurer jointly liable. The appeals were allowed and the orders of the lower courts regarding the deduction were reversed.

Issues considered

The applicability of contributory negligence to the passengers and injured claimant where the driver of the car is alleged to have been jointly responsible.
Whether a deduction of 50% from compensation is justified when the offending vehicle was illegally abandoned on a public highway without warning lights.
The scope of the Supreme Court's power under Article 136 to interfere with concurrent findings of fact by lower courts.

Legislation cited

Constitution of India
Motor Vehicles Act, 1988s. 121, s. 122, s. 126, s. 127(2), s. 2(34)
Rules of Road Regulations, 1989

Subjects

Motor Vehicle Accident claimCompensationContributory negligenceMotor Vehicles ActArticle 136Tort law

Judgment

[2024] 9 S.C.R. 425 : 2024 INSC 706

Sushma
v.
Nitin Ganapati Rangole & Ors.
(Civil Appeal No(s). 10648 of 2024)
19 September 2024
[Pamidighantam Sri Narasimha and Sandeep Mehta,* JJ.]

Issue for Consideration
The core issue involved in these appeals centres around the
deduction of 50% compensation awardable to the appellant-
claimants, who have assailed the concurrent findings of the Courts
below on the aspect of contributory negligence whereby, the driver
of the car, who also died in the accident, was held jointly responsible
for causing the collision.

Headnotes†
Motor Vehicles Act, 1988 – A car collided with a 14-wheeler
trailer truck which was left abandoned in the middle of the
highway without any warning signs in the form of indicators
or parking lights – The collision resulted into the death of the
passengers of the car and the driver – Only one passenger-S
survived – The injured S and the legal heirs of the deceased
occupants of the car filed separate claim petitions – The
Tribunal directed reduction of the compensation awarded by
50% on account of contributory negligence by driver of the
car – The High Court approved the Tribunal observation with
respect to contributory negligence – Correctness:
Held: On a holistic analysis of the material available on record,
it is established beyond the pale of doubt that the offending truck
was parked in the middle of the road without any parking lights
being switched on and without any markers or indicators being
placed around the stationary vehicle so as to warn the incoming
vehicular traffic – This omission by the person in control of the said
truck was in clear violation of law – The accident took place on
a highway where the permissible speed limits are fairly high – In
such a situation, it would be imprudent to hold that the driver of
a vehicle, travelling through the highway in the dead of the night
in pitch dark conditions, would be able to make out a stationary
vehicle lying in the middle of the road within a reasonable

* Author
426 [2024] 9 S.C.R.

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distance so as to apply the brakes and avoid the collision – The
situation would be compounded by the headlights of the vehicles
coming from the opposite direction and make the viewing of the
stationary vehicle even more difficult – Thus, the conclusion drawn
by the Courts below that the driver of the car could have averted the
accident by applying the brakes and hence, he was equally negligent
and contributed to the accident on the application of principle of
last opportunity is ex-facie perverse and cannot be sustained – As
a consequence, the deduction of 50% of compensation awarded
to the appellant-claimants on account of contributory negligence,
as directed by the Tribunal and affirmed by the High Court, cannot
be sustained. [Paras 40, 42]
Case Law Cited
Sukhbiri Devi v. Union of India [2022] 13 SCR 523 : 2022 SCC
OnLine SC 1322; Mekala Sivaiah v. State of A.P [2022] 6 SCR
989 : (2022) 8 SCC 253; Union of India v. United India Insurance
Co. Ltd. [1997] Supp. 4 SCR 643 : (1997) 8 SCC 683; Archit Saini
and Another v. Oriental Insurance Company Limited and Others
[2018] 1 SCR 626 : (2018) 3 SCC 365 – relied on.
Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak (2002)
6 SCC 455 – referred to.
Astley v. Austrust Ltd (1999) 73 ALJR 403; Swadling v. Cooper
1931 AC 1 – referred to.
List of Acts
Motor Vehicles Act, 1988; Rules of Road Regulations, 1989;
Constitution of India.
List of Keywords
Motor Vehicle Accident claim; Compensation; Reduction of
Compensation awarded by 50% on account of contributory
negligence; Contributory negligence.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10648 of 2024
From the Judgment and Order dated 07.04.2021 of the High Court
of Karnataka Circuit Bench at Dharwad in MFA No. 102775 of 2016
With
Civil Appeal Nos. 10649, 10650, 10651, 10652-10653 of 2024
[2024] 9 S.C.R. 427

Sushma v. Nitin Ganapati Rangole & Ors.

Appearances for Parties
Nitin Tambwekar, Seshatalpa Sai Bandaru, Ms. Supreeta
Sharanagouda, Sharanagouda Patil, Jyotish Pandey, Advs. for the
Appellant.
Atul Nanda, Sr. Adv., Ms. Rameeza Hakeem, Rajeev Maheshwaranand
Roy, P. Srinivasan, Ms. Vartika, Manish Kumar, Ishwar Singh, Gopal
Singh, Advs. for the Respondents.
Judgment / Order of the Supreme Court

Judgment
Mehta, J.
Civil Appeals @ SLP(Civil) Nos. 21172 of 2021
Civil Appeals @ SLP(Civil) Nos. 1023 of 2022
Civil Appeals @ SLP(Civil) Nos. 21248 of 2021
Civil Appeals @ SLP(Civil) Nos. 337 of 2022
1. Leave granted.
2. The appellant-claimants have preferred these appeals being
aggrieved by the common judgment dated 7th April, 2021 passed by
the Division Bench of High Court of Karnataka in MAC appeals1 filed
by the appellant-claimants and respondent No.2-Reliance General
Insurance Limited (for short the ‘Insurer’) under Section 173(1) of the
Motor Vehicles Act, 1988 (for short the ‘Act’). The Division Bench of
the High Court disposed of the appeals in the following manner: -
“ORDER
1. Miscellaneous First Appeals filed by both the
Insurance Company and the Claimants are disposed
of;
2. The modified compensation in all the appeals is as
follows:

1 In Miscellaneous First Appeal Nos. 102776, 102549, 102775, 102546, 102773, 102547, 102777 &
102550 of 2016 and 100204 of 2017.
428 [2024] 9 S.C.R.

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MFA No. Amount (Rs.)
102773 of 2016 (MVC 2277 of 2013) 21,81,718.00
102774 of 2016 (MVC 2278 of 2013) 74,720.00
102775 of 2016 (MVC 2279 of 2013) 59,54,392.00
102776 of 2016 (MVC 2280 of 2013) 7,01,400.00
102777 of 2016 (MVC 2281 of 2013) 15,000.00
3. Insurance company shall satisfy the award within
four weeks from the date of receipt of certified copy
of this order;
4. Apportionment and disbursement of the compensation
amount shall be as per the award of the Tribunal;
5. The amount in deposit, if any, be transmitted to the
Tribunal forthwith, for disbursement to the claimants.”
3. Brief facts relevant and essential for the disposal of the present
appeals are that on 18th August, 2013, a car bearing registration
No. MH-09/BX-4073 (for short ‘the car’) collided with a 14-wheeler
trailer truck bearing registration No. MH-09/CA-0389 (for short ‘the
offending truck’) which was left abandoned in the middle of the
highway without any warning signs in the form of indicators or parking
lights. The collision resulted into the death of the passengers of
the car, namely, Sunita, Ashtavinayak Patil, Deepali and the driver
Saiprasad Karande at the spot. One of the passengers, namely,
Smt. Sushma (wife of deceased- Ashtavinayak Patil) survived the
accident, however, sustaining grievous injuries. The car was insured
by respondent No. 4-IFFCO-TOKIO General Insurance Co. Ltd. (for
short the ‘Insurance Company’), whereas, the offending truck was
insured by respondent No.2-Insurer.
4. The injured Smt. Sushma and the legal heirs of the deceased
occupants of the car filed separate claim petitions under Section
166 of the Act before the VI Additional District and Sessions Judge
and Member, Additional Motor Accident Claims Tribunal, Belagavi
(hereinafter being referred to as ‘Tribunal’) claiming compensation
from the owner of offending truck i.e. respondent No. 1 and the
insurer of the offending truck i.e. respondent No.2-Insurer. No relief
was sought by the claimants against the owner and the insurer of
the car. The claimants alleged that since the offending truck was left
[2024] 9 S.C.R. 429

Sushma v. Nitin Ganapati Rangole & Ors.

abandoned in the middle of the highway without switching on the
parking lights or indicators or without taking any other precautionary
measures to warn the incoming traffic, the person in control of the
said vehicle was fully responsible for the accident.
5. The Tribunal, while deciding the claims held that it was a case of
contributory negligence by the drivers of both the vehicles. The
Tribunal observed that the driver of the car had contributed to the
accident because he failed to take appropriate preventive measures
so as to avoid collision with the offending truck which was parked
in the middle of the road.
6. As the appellant-claimants had not claimed compensation from owner
of the car, i.e., respondent No.3-Shri Vasant Ravan Jadhawar and
respondent No.4-Insurance Company of the car, these respondents
were exonerated and the claims against them were dismissed.
7. The Tribunal computed the compensation as below: -

MVC No. Amount(Rs.)
2277 of 2013 22,25,000.00
2278 of 2013 30,000.00
2279 of 2013 66,02,500.00
2280 of 2013 87,500.00
2281 of 2013 12,500.00
8. The Tribunal held the owner of the offending truck, respondent No.1
and the respondent No. 2-Insurer jointly and severally responsible
to indemnify the claims of the appellant-claimants and at the same
time directed reduction of the compensation awarded by 50% on
account of contributory negligence.
9. Aggrieved by the quantum of compensation awarded and the
reduction on account of contributory negligence, the appellant-
claimants filed appeals under Section 173(1) of the Act before the
High Court of Karnataka.
10. Upon hearing arguments advanced on behalf of the parties and
appreciating the material available on record, the Division Bench
of the High Court of Karnataka applied the rule of last opportunity
and held that had the driver of the car been cautious, he could
have avoided the accident. The High Court gave imprimatur to
430 [2024] 9 S.C.R.

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the Tribunal’s observation with respect to contributory negligence,
however, it modified and enhanced compensation awarded by the
Tribunal while disposing of the appeals vide judgment dated 7th April,
2021 (supra). The High Court affirmed the direction of the Tribunal
holding the respondent No.2-Insurer responsible to indemnify the
claims to the extent of 50%.
11. The appellant-claimants have preferred these appeals by special
leave primarily aggrieved by the deduction of the compensation
awarded to them on account of contributory negligence.
12. Thus, the core issue involved in these appeals centres around the
deduction of 50% compensation awardable to the appellant-claimants,
who have assailed the concurrent findings of the Courts below on
the aspect of contributory negligence whereby, the driver of the car,
i.e. Saiprasad Karande (deceased), was held jointly responsible for
causing the collision.
13. The challenge in these appeals is against the concurrent findings of
the Courts below. The scope of interference by this Court in such
concurrent finding while exercising jurisdiction under Article 136 of
the Constitution of India is well-established. In the case of Sukhbiri
Devi v. Union of India,2 this Court noted:
“3. At the outset, it is to be noted that the challenge in
this appeal is against concurrent findings by three Courts,
as mentioned hereinbefore. The scope of an appeal by
special leave under Article 136 of the Constitution of India
against the concurrent findings is well settled. In State of
Rajasthan v. Shiv Dayal 3 reiterating the settled position,
this Court held that a concurrent finding of fact is binding,
unless it is infected with perversity. It was held therein: —
“When any concurrent finding of fact is
assailed in second appeal, the appellant
is entitled to point out that it is bad in
law because it was recorded de hors the
pleadings or it was based on no evidence
or it was based on misreading of material

2 [2022] 13 SCR 523 : 2022 SCC OnLine SC 1322
3 (2019) 8 SCC 637
[2024] 9 S.C.R. 431

Sushma v. Nitin Ganapati Rangole & Ors.

documentary evidence or it was recorded
against any provision of law and lastly,
the decision is one which no Judge acting
judicially could reasonably have reached.
(see observation made by learned Judge Vivian
Bose, J. as His Lordship then was a Judge of
the Nagpur High Court in Rajeshwar Vishwanath
Mamidwar v. Dashrath Narayan Chilwelkar,
AIR 1943 Nag 117 Para 43).”
4. Thus, evidently, the settled position is that interference
with the concurrent findings in an appeal under Article
136 of the Constitution is to be made sparingly, that too
when the judgment impugned is absolutely perverse.
On appreciation of evidence another view is possible also
cannot be a reason for substitution of a plausible view
taken and confirmed. We will now, bearing in mind the
settled position, proceed to consider as to whether the
said appellate power invites invocation in the case on hand.”
(emphasis supplied)
14. This Court while dealing with the exercise of power under Article
136 to interfere with concurrent findings in Mekala Sivaiah v. State
of A.P.,4 expounded: -
“15. It is well settled by judicial pronouncement that Article
136 is worded in wide terms and powers conferred under
the said Article are not hedged by any technical hurdles.
This overriding and exceptional power is, however, to be
exercised sparingly and only in furtherance of cause of
justice. Thus, when the judgment under appeal has resulted
in grave miscarriage of justice by some misapprehension
or misreading of evidence or by ignoring material evidence
then this Court is not only empowered but is well expected
to interfere to promote the cause of justice.
16. It is not the practice of this Court to re-appreciate
the evidence for the purpose of examining whether the
findings of fact concurrently arrived at by the trial court

4 [2022] 6 SCR 989 : (2022) 8 SCC 253
432 [2024] 9 S.C.R.

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and the High Court are correct or not. It is only in rare
and exceptional cases where there is some manifest
illegality or grave and serious miscarriage of justice on
account of misreading or ignoring material evidence,
that this Court would interfere with such finding of fact.
…
18. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat
[Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983)
3 SCC 217 : 1983 SCC (Cri) 728] , a two-Judge Bench of
this Court held that this Court does not interfere with the
concurrent findings of fact unless it is established:
18.1. That the finding is based on no evidence.
18.2. That the finding is perverse, it being such as no
reasonable person could arrive at even if the evidence
was taken at its face value.
18.3. The finding is based and built on inadmissible
evidence which evidence, excluded from vision, would
negate the prosecution case or substantially discredit
or impair it.
18.4. Some vital piece of evidence which would tilt the
balance in favour of the convict has been overlooked,
disregarded or wrongly discarded.”
(emphasis supplied)
15. In view of the above precedents, it is clear that this Court in exercise
of its jurisdiction under Article 136 of the Constitution of India has
the power to interfere, even if the Courts below have concurrently
reached to a common conclusion with respect to a certain factual
aspect, subject to the condition that such a conclusion is so perverse
that no reasonable person could arrive at such a conclusion even if
the evidence was taken at its face value.
16. Having considered the submissions advanced by learned counsel for
the parties and after going through the impugned judgements passed
by the High Court and the Tribunal as well as upon appreciating
the material placed on record, we feel that the contentious finding
whereby, the driver of the car, namely, Saiprasad Karande (deceased)
[2024] 9 S.C.R. 433

Sushma v. Nitin Ganapati Rangole & Ors.

was held jointly responsible for causing the accident along with
the driver/owner of the offending truck leading to the claims of the
passenger-Sushma & dependants of the deceased-passengers
being deducted by 50% on the principle of contributory negligence
is perverse on the face of the record.
17. In addition, we hold that the finding of the Courts below, which reduced
the claims of the legal heirs of the deceased and the injured, other
than the legal heirs of the driver-Saiprasad Karande (deceased) is
also invalid in the eyes of law. The Courts below uniformly applied
the principle of contributory negligence while directing deduction from
the compensation awarded to the respective appellant-claimants,
i.e. the dependents of passengers and the injured as well as the
dependents of the driver-Saiprasad Karande @ 50%. Thus, the
contributory negligence of the driver of the car was vicariously applied
to the passengers which is prima facie illegal and impermissible.
18. In the case of Union of India v. United India Insurance Co. Ltd.,5
this Court dealt with the question whether the driver’s negligence
in any manner vicariously attaches to the passengers of the motor
vehicle of which he was the driver, and it was held as below: -
“10. There is a well-known principle in the law of torts
called the “doctrine of identification” or “imputation”. It is
to the effect that the defendant can plead the contributory
negligence of the plaintiff or of an employee of the plaintiff
where the employee is acting in the course of employment.
But, it has been also held in Mills v. Armstrong [(1888) 13
AC 1, HL] (also called The Bernina case) that principle is
not applicable to a passenger in a vehicle in the sense
that the negligence of the driver of the vehicle in which
the passenger is travelling, cannot be imputed to the
passenger. (Halsbury’s Laws of England, 4th Ed., 1984
Vol. 34, p. 74; Ratanlal and Dhirajlal, Law of Torts, 23rd
Ed., 1997, p. 511; Ramaswamy Iyer, Law of Torts, 7th Ed.,
p. 447.) The Bernina case [(1888) 13 AC 1, HL] in which
this principle was laid in 1888 related to passengers in
a steamship. In that case a member of the crew and a
passenger in the ship Bushire were drowned on account

5 [1997] Supp. 4 SCR 643 : (1997) 8 SCC 683
434 [2024] 9 S.C.R.

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of its collision with another ship Bernina. It was held that
even if the navigators of the ship Bushire were negligent,
the navigators’ negligence could not be imputed to the
deceased who were travelling in that ship. This principle
has been applied, in latter cases, to passengers travelling in
a motor vehicle whose driver is found guilty of contributory
negligence. In other words, the principle of contributory
negligence is confined to the actual negligence of
the plaintiff or of his agents. There is no rule that the
driver of an omnibus or a coach or a cab or the engine
driver of a train, or the captain of a ship on the one
hand and the passengers on the other hand are to be
“identified” so as to fasten the latter with any liability
for the former’s contributory negligence. There cannot
be a fiction of the passenger sharing a “right of control”
of the operation of the vehicle nor is there a fiction that
the driver is an agent of the passenger. A passenger is
not treated as a backseat driver. (Prosser and Keeton on
Torts, 5th Ed., 1984, pp. 521-22.) It is therefore clear that
even if the driver of the passenger vehicle was negligent,
the Railways, if its negligence was otherwise proved —
could not plead contributory negligence on the part of the
passengers of the vehicle. What is clear is that qua the
passengers of the bus who were innocent, — the driver
and owner of the bus and, if proved, the Railways — can
all be joint tortfeasors.”
(emphasis supplied)
19. It is clear from the ratio of the above judgment that the contributory
negligence on the part of a driver of the vehicle involved in the
accident cannot be vicariously attached to the passengers so as to
reduce the compensation awarded to the passengers or their legal
heirs as the case may be.
20. Thus, we have no hesitation in holding that the Courts below
committed gross error in law while reducing the compensation
awarded to the appellant-claimants, being the dependents of the
deceased-passengers and Smt. Sushma as the claims of these
claimants cannot be truncated by attaching the vicarious liability with
the driver. However, the claim of the dependents of the deceased
driver Saiprasad Karande would stand on a different footing.
[2024] 9 S.C.R. 435

Sushma v. Nitin Ganapati Rangole & Ors.

21. We shall now proceed to discuss whether the Courts below were
justified in fastening partial liability on the driver of the car on the
basis of contributory negligence in causing the accident.
22. The High Court, after adverting to the evidence available on record,
made the following observations on the aspect of contributory
negligence: -
“12. The Investigation Officer has filed charge sheet against
the driver of the car as also the driver of truck. Exhibit
P4-spot mahazar establishes the fact that the offending
truck was parked on the middle of the road. Undisputedly,
accident took place at 9.10 pm and the truck is a Heavy
Goods Vehicle. Exhibit P6-Photograph of the place of
accident substantiate that the offending truck was fourteen
wheeled heavy truck which was parked on the middle of the
road. Though Shri G.N. Raichur, learned counsel submitted
that the truck was parked on the extreme left of the road,
however, perusal of the photographs would clearly
substantiate the fact that the truck was parked on the
middle of the road and on the other hand, the learned
counsel for the claimants submitted that there was fog
at the time of the accident. There are no eye-witnesses
to the incident. Taking into consideration the facts in totality,
it may be stated that if the driver of the car was cautious,
he would have avoided the accident and accordingly, the
rule of last opportunity would be squarely applicable to the
facts of the case and therefore, the finding recorded by
the Tribunal fastening 50% contributory negligence on the
drivers of both the vehicles in question, is just and proper.
In view of the same, the finding recorded by the Tribunal
on issue No.1 is, hereby, affirmed and the appeals filed
by the Insurance Company challenging the liability are
required to be rejected, accordingly rejected.”
(emphasis supplied)
23. On going through the above extract from the impugned judgment, it
is evident that the High Court recorded an affirmative finding that the
offending truck was parked in the middle of the road. This finding as
borne out from the evidence is not under challenge and has attained
finality. The accident took place on 18th August, 2013 which as per
436 [2024] 9 S.C.R.

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the Hindu calendar fell on Shukla Paksha Dwadashi, and thus, there
was not even a remote possibility that the road would be illuminated
by moonlight at the time of the accident. The discussion of evidence
by the Tribunal and the High Court makes no reference to availability
of streetlights at the collision site and hence, there is no doubt that at
the time of the accident, the conditions on the road would have been
pitch dark making it virtually impossible for the incoming vehicles
to sight the stationary offending truck within a reasonable distance.
24. Learned counsel for the appellant-claimants, urged that there is
neither any evidence nor any finding by the Courts below that the
offending truck was parked on the road after taking due care and
caution i.e. either by switching on the parking lights or by putting
any prominent markers around the vehicle so as to warn the passing
vehicles. Apparently thus, the offending truck was left abandoned in
the middle of the highway (as concurrently held by both the Courts
below) without taking due care and caution to switch on the parking
lights or to put in place any other precautionary measures to warn
the vehicles traversing the highway in the dead of the night.
25. Common sense requires that no vehicle can be left parked and
unattended in the middle of the road as it would definitely be a traffic
hazard posing risk to the other road users.
26. We shall briefly refer to the statutory provisions applicable to the
situation at hand.
27. A highway or a road is a public place as defined in Section 2(34)
of the Act: -
“2(34) “public place” means a road, street, way or other
place, whether a thoroughfare or not, to which the public
have a right of access, and includes any place or stand at
which passengers are picked up or set down by a stage
carriage;”
28. Section 121 of the Act provides that the driver of a motor vehicle shall
make such signals and, on such occasions, as may be prescribed
by the Central Government.
29. Section 122 of the Act provides that no person in charge of a motor
vehicle shall cause or allow the vehicle or any trailer to be abandoned
or to remain at rest on any “public place” in such a position or in
[2024] 9 S.C.R. 437

Sushma v. Nitin Ganapati Rangole & Ors.

such a condition or in such circumstances so as to cause or likely
to cause danger, obstruction or undue inconvenience to other users
of the public place or to the passengers.
30. Section 126 of the Act provides that no person driving or in charge of
a motor vehicle shall cause or allow the vehicle to remain stationary
in any public place.
31. Section 127(2) of the Act provides that where any abandoned,
unattended, wrecked, burnt or partially dismantled vehicle is creating
a traffic hazard, because of its position in relation to the public place,
or its physical appearance is causing the impediment to the traffic,
its immediate removal from the public place by a towing service may
be authorised by a police officer having jurisdiction.
32. Regulation 15 of the Rules of Road Regulation, 1989 which were
prevailing on the date of the incident provides that every driver of
a motor vehicle shall park the vehicle in such a way that it does
not cause or is not likely to cause danger, obstruction or undue
inconvenience to other road users. It casts a duty on the drivers
of a motor vehicle stating that the vehicle shall not be parked at or
near a road crossing or in a main road.
33. These legal provisions leave no room for doubt that the person in
control of the offending truck acted in sheer violation of law while
abandoning the vehicle in the middle of the road and that too without
taking precautionary measures like switching on the parking lights,
reflectors or any other appropriate steps to warn the other vehicles
travelling on the highway. Had the accident taken place during
the daytime or if the place of accident was well illuminated, then
perhaps, the car driver could have been held equally responsible
for the accident by applying the rule of last opportunity. But the fact
remains that there was no illumination at the accident site either
natural or artificial. Since the offending truck was left abandoned
in the middle of the road in clear violation of the applicable rules
and regulations, the burden to prove that the placement of the said
vehicle as such was beyond human control and that appropriate
precautionary measures taken while leaving the vehicle in that
position were essentially on the person in control of the offending
truck. However, no evidence was led by the person having control
over the said truck in this regard. Thus, the entire responsibility for
the negligence leading to the accident was of the truck owner/driver.
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34. In view of the above discussion, the view expressed by the High
Court that if the driver of the car had been vigilant and would have
driven the vehicle carefully by following the traffic rules, the accident
may have been avoided is presumptuous on the face of the record
as the same is based purely on conjectures and surmises. Nothing
on record indicates that the car was being driven at an excessively
high speed or that the driver failed to follow the traffic rules. The
High Court recorded an incongruous finding that if the offending
truck had not been parked on the highway, the accident would not
have happened even if the car was being driven at a very high
speed. Therefore, the reasoning of the High Court on the issue of
contributory negligence is riddled with inherent contradictions and
is paradoxical.
35. The Courts below erred in concluding that it is a case of contributory
negligence, because in order to establish contributory negligence,
some act or omission which materially contributed to the accident or
damage should be attributed to the person against whom it is alleged.
36. In the case of Pramodkumar Rasikbhai Jhaveri v. Karmasey
Kunvargi Tak,6 this Court while referring to a decision of the High
Court of Australia in Astley v. Austrust Ltd.,7 went on to hold that: -
“… where, by his negligence, if 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.”
37. In the very same judgment, this Court also referred to and approved
the view taken in Swadling v. Cooper,8 as below: -
“Mere failure to avoid the collision by taking some
extra ordinary precaution, does not in itself constitute
negligence.”
(emphasis supplied)

6 (2002) 6 SCC 455
7 (1999) 73 ALJR 403
8 1931 AC 1
[2024] 9 S.C.R. 439

Sushma v. Nitin Ganapati Rangole & Ors.

38. A three Judge Bench of this Court in the case of Archit Saini and
Another v. Oriental Insurance Company Limited and Others,9
had the occasion to consider an identical fact scenario, and after
analysing the evidence available on record, it was held:-
“8. After having perused the evidence of PW7, Site Map
(Ext. P-45) and the detailed analysis undertaken by the
Tribunal, we have no hesitation in taking the view that the
approach of the High Court in reversing the conclusion
arrived at by the Tribunal on issue No.1 has been very
casual, if not cryptic and perverse. Indeed, the appeal
before the High Court is required to be decided on fact
and law. That, however, would not permit the High Court
to casually overturn the finding of fact recorded by the
Tribunal. As is evident from the analysis done by the
Tribunal, it is a well-considered opinion and a plausible
view. The High Court has not adverted to any specific
reason as to why the view taken by the Tribunal was
incorrect or not supported by the evidence on record. It
is well settled that the nature of proof required in cases
concerning accident claims is qualitatively different from
the one in criminal cases, which must be beyond any
reasonable doubts. The Tribunal applied the correct test
in the analysis of the evidence before it. Notably, the High
Court has not doubted the evidence of PW7 as being
unreliable nor has it discarded his version that the driver of
the Maruti Car could not spot the parked Gas Tanker due
to the flashlights of the oncoming traffic from the front side.
Further, the Tribunal also adverted to the legal presumption
against the driver of the Gas Tanker of having parked his
vehicle in a negligent manner in the middle of the road.
The Site Plan (Ext. P-45) reinforces the version of PW7
that the Truck (Gas Tanker) was parked in the middle of
the road but the High Court opined to the contrary without
assigning any reason whatsoever. In our view, the Site
Plan (Ext. P-45) filed along with the chargesheet does not
support the finding recorded by the High Court that the Gas
Tanker was not parked in the middle of the road. Notably,

9 [2018] 1 SCR 626 : (2018) 3 SCC 365
440 [2024] 9 S.C.R.

Digital Supreme Court Reports

the High Court has also not doubted the claimant’s plea
that the Gas Tanker/offending vehicle was parked without
any indicator or parking lights. The fact that PW7 who was
standing on the opposite side of the road at a distance of
about 70 feet, could see the Gas Tanker parked on the
other side of the road does not discredit his version that
the Maruti Car coming from the opposite side could not
spot the Gas Tanker due to flashlights of the oncoming
traffic from the front side. It is not in dispute that the road
is a busy road. In the cross-examination, neither has any
attempt been made to discredit the version of PW7 nor has
any suggestion been made that no vehicle with flashlights
on was coming from the opposite direction of the parked
Gas Tanker at the relevant time.
9. Suffice it to observe that the approach of the High Court
in reversing the well-considered finding recorded by the
Tribunal on the material fact, which was supported by the
evidence on record, cannot be countenanced.
10. Accordingly, we have no hesitation in setting aside the
said finding of the High Court. As a result, the appellants
would be entitled to the enhanced compensation as
determined by the High Court in its entirety without any
deduction towards contributory negligence. In other words,
we restore the finding of the Tribunal rendered on issue
No.1 against the respondents and hold that respondent
no.1 negligently parked the Gas Tanker/offending vehicle
in the middle of the road without any indicator or parking
lights.”
39. We are of the view that the aforesaid decision applies to the case at
hand on all fours and thus, the appellant-claimants cannot be denied
their rightful compensation on the ground that the driver of the car,
namely Saiprasad Karande (deceased), was jointly responsible for
the accident with the person in control of the offending truck and
hence, their claims should be reduced on the principle of contributory
negligence.
40. On a holistic analysis of the material available on record, it is
established beyond the pale of doubt that the offending truck was
parked in the middle of the road without any parking lights being
[2024] 9 S.C.R. 441

Sushma v. Nitin Ganapati Rangole & Ors.

switched on and without any markers or indicators being placed
around the stationary vehicle so as to warn the incoming vehicular
traffic. This omission by the person in control of the said truck was
in clear violation of law. The accident took place on a highway where
the permissible speed limits are fairly high. In such a situation, it
would be imprudent to hold that the driver of a vehicle, travelling
through the highway in the dead of the night in pitch dark conditions,
would be able to make out a stationary vehicle lying in the middle
of the road within a reasonable distance so as to apply the brakes
and avoid the collision. The situation would be compounded by the
headlights of the vehicles coming from the opposite direction and
make the viewing of the stationary vehicle even more difficult. Thus,
the conclusion drawn by the Courts below that the driver of the car
could have averted the accident by applying the brakes and hence,
he was equally negligent and contributed to the accident on the
application of principle of last opportunity is ex-facie perverse and
cannot be sustained. Hence, it is a fit case warranting exercise of
this Court’s powers under Article 136 of the Constitution of India to
interfere with the concurrent finding of facts.
41. We, therefore, hold that the person in control of the offending truck
insured by respondent No. 2-Insurer, was fully responsible for the
negligence leading to the accident.
42. As a consequence, the deduction of 50% of compensation awarded
to the appellant-claimants on account of contributory negligence, as
directed by the Tribunal and affirmed by the High Court, cannot be
sustained. The finding recorded by the Courts below on this issue
is reversed as being perverse and unsustainable in the facts as well
as in law. Resultantly, it is directed that there shall be no deduction
from the compensation payable to the appellant-claimants who shall
be entitled to the full compensation as assessed by the Tribunal and
modified by the High Court by the impugned judgment.
43. It is further directed that respondent No. 2-Insurer shall be jointly
and severally liable along with the owner of the offending truck to
indemnify the awards.
44. The appeals are accordingly allowed. No costs.
Civil Appeals @ SLP(Civil) Nos. 17692-17693 of 2023
45. Leave granted.
442 [2024] 9 S.C.R.

Digital Supreme Court Reports

46. In these appeals, the appellant-Malutai 10 has challenged the
apportionment of the compensation awarded by the Tribunal between
the appellant and the co-claimant.11 Modification in the apportionment
is sought on the ground that the co-claimant Smt. Sushma has
remarried after the claim was decided and thus, she cannot claim
equal share in the compensation.
47. Having considered the submissions advanced on behalf of the
parties, we are not inclined to interfere in the apportionment of
the compensation between the appellant-Malutai and co-claimant
(respondent No.5), as directed by the Tribunal and affirmed by the
High Court. Thus, the said prayer of the appellant-Malutai is declined.
48. However, we reiterate the findings recorded in Civil Appeal @ SLP
(Civil) No. 21172 of 2021 and connected matters and direct that the
claimants, being the mother and wife of the deceased-Ashtavinayak
Patil, shall be entitled to full compensation without any deduction on
account of contributory negligence.
49. The respondent No.2-Insurer shall be liable to indemnify the award,
however, the apportionment of the compensation inter se between
the claimants as directed by the Tribunal shall not be disturbed.
50. The appeals are accordingly disposed of. No costs.
51. Pending application(s), if any, shall stand disposed of.

Result of the Case: Appeals disposed of.

†
Headnotes prepared by: Ankit Gyan

10 Mother of the deceased-Ashtavinayak Patil
11 Smt. Sushma, wife of the deceased-Ashtavinayak Patil (respondent No. 5 in the present appeals)