Supreme Court: Whether Motor Accident Claims Tribunal Can Look Into Police Records To Determine Question Of Negligence?

Thus, there can be no dispute with respect to the

position that the question regarding negligence which is

essential for passing an award in a motor vehicle

accident claim should be considered based on the

evidence available before the Tribunal. If the police

records are available before the Tribunal, taking note of

the purpose of the Act it cannot be said that looking into

such documents for the aforesaid purpose is

impermissible or inadmissible. {Para 9}

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. of 2025 (@ SLP (C) No. 29302 of 2019)

ICICI Lombard General Insurance Co. Ltd. Vs Rajani Sahoo & Ors.

Author: C.T. RAVIKUMAR, J.

Citation:  2025 INSC 6.

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Supreme Court: Whether Motor accident claim tribunal can held deceased liable for contributory negligence if driver of offending vehicle fails to examine himself?

Firstly, with regard to the negligence, as held, a perusal of the judgment passed by the Motor Accident Claims Tribunal (for short 'MACT') itself would indicate the manner in which the accident had occurred and as rightly observed both by the MACT as well as by the High Court, the accident having taken place during the month of December after it was dark, certainly, the visibility would be poor. In that circumstance, when it was a case where the truck (offending vehicle) was parked on middle of the road and the deceased had not noticed it as there was no clear indication or signal, it cannot be said that there was negligence on the part of the deceased as he could notice the vehicle (the truck) only when he had approached the same. {Para 3}

4. Therefore, in the present facts and circumstance of the case, we are of the opinion that the conclusion, as reached, both by the MACT and the High Court that the deceased was negligent to the extent of 50% is not justified. Furthermore, when there was no explanation on the part of the driver of the truck by examining him with regard to the manner in which the accident had occurred, we are of the opinion that the entire negligence is to be fastened on the driver of the truck (the offending vehicle).

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5420 of 2023 (Arising out of SLP (C) No. 30423/2019)

Decided On: 25.08.2023

Laxmi Devi and Ors. Vs. Mehboob Ali and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and M.M. Sundresh, JJ.

Citation: MANU/SC/1382/2023.

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Whether Motor accident claim tribunal can rely on certified copy of F.I.R. and spot panchnama if insurance company has not contested the claim on the issue of negligence?

 The documents in question, i.e., certified copy of F.I.R. and spot panchnama were produced by the original claimants along with the claim petition. In para 28 of the claim petition, reference is made to the fact that claimants were relying upon the documents which were produced along with application. In the written statement which is filed by the appellants, there is no dispute raised as regards the documents which are produced along with the application. It appears from the record that the claim application was not defended by the insured and the same was contested by the appellant as per order below in application at Exh. 34 passed under the provisions of Section 170 of the Motor Vehicles Act, 1988. By the said order permission was granted in favour of the appellant to take all defences and to contest the claim on merits. On 24.7.2002, the said application was allowed. After the said application was allowed, additional written statement or further written statement was not filed by the appellant. The evidence was recorded by the Claims Tribunal and on 5.8.2002, the evidence close pursis was filed by the advocate for the appellant. On the next date, i.e., 12.8.2002 written submissions were filed on behalf of appellant and on 21.8.2002 the learned Member of the Claims Tribunal heard the oral submissions made by the advocate for the claimants and the matter was closed for judgment. Thus, no oral submissions were made on behalf of the appellant. I have perused the written submissions of appellant at Exh.  A1. The written submissions are filed raising only dispute as regards quantum of compensation payable to the claimants. Not a single submission is made on behalf of the appellant on the issue of negligence. In the written submissions, it is stated that considering the evidence on record, total income of the deceased will be Rs. 22,000 per annum and after deducting 1/3rd from his income and applying multiplier of 15 years, compensation payable will be Rs. 2,19,000 plus Rs. 10,000 for conventional amount and Rs. 5,000 for funeral. It is very clear that appellant insurance company did not contest claim as far as issue of negligence is concerned. Only contest was on the quantum of amount payable to the claimants. Therefore, a specific case is made out that the respondent Nos. 1 to 4 are entitled to compensation of only Rs. 2,19,000. Though opportunity was granted to the insurance company to defend the claim on behalf of insured both on the issue of negligence and quantum, the said opportunity was not availed of and the contest by the insurance company was restricted only to the quantum of amount of compensation. There were clear averments made in the application as regards negligence by the driver of the jeep. The driver and owner of the jeep though served did not file the written statement. Appellant insurance company even after leave was granted did not contest the case on the issue of negligence. It is obvious that as there was no contest by the appellant on the issue of negligence, the claimants did not examine any eyewitness and did not examine any witness to prove the certified copy of the spot panchnama or F.I.R. {Para 6}

7. In this view of the matter, the contention raised by the appellants that the panchnama and F.I.R. was not admissible in the evidence for want of proof cannot be considered.

 IN THE HIGH COURT OF BOMBAY

F.A. No. 524 of 2003

Decided On: 11.08.2004

Oriental Insurance Co. Ltd. Vs. Sangita Dattatraya Jamdade and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, J.

Citation:  MANU/MH/1406/2004,2006 ACJ 971 Bom.

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Supreme Court: Motor Accidents | 'No Negligence' Finding In Final Report Has No Bearing On Claim Petition As Standard Of Proof Is Different

In this context, we could refer to judgments of this Court in the case of N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal reported in MANU/SC/0321/1980 : AIR 1980 SC 1354, wherein the plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rejected. It was observed that culpable rashness Under Section 304-A of Indian Penal Code is more drastic than negligence under the law of torts to create liability. Similarly, in MANU/SC/0577/2009 : (2009) 13 SCC 530, in the case of Bimla Devi v. Himachal Road Transport Corporation ("Bimla Devi"), it was observed that in a claim petition filed Under Section 166 of the Motor Vehicles Act, 1988, the Tribunal has to determine the amount of fair compensation to be granted in the event an accident has taken place by reason of negligence of a driver of a motor vehicle. A holistic view of the evidence has to be taken into consideration by the Tribunal and strict proof of an accident caused by a particular vehicle in a particular manner need not be established by the claimants. The claimants have to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond reasonable doubt cannot be applied while considering the petition seeking compensation on account of death or injury in a road traffic accident. 

10. In that view of the matter, it is for the Appellant herein to establish negligence on the part of the driver of the tanker lorry in the petition filed by him seeking compensation on account of death of his son in the said accident. Thus, the opinion in the final report would not have a bearing on the claim petition for the aforesaid reasons. This is because the Appellant herein is seeking compensation for the death of his son in the accident which occurred on account of the negligence on the part of the driver of the tanker lorry, causing the accident on the said date. It is further observed that in the claim petitions filed by the dependents, in respect of the other passengers in the car who died in the accident, they have to similarly establish the negligence in accordance with law.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1931 of 2023.

Decided On: 13.07.2023

Mathew Alexander  Vs. Mohammed Shafi and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Prashant Kumar Mishra, JJ.

Citation: MANU/SC/0759/2023.

Author: B.V. Nagarathna, J.

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Supreme Court: In Motor Accident Claim, evidence Recorded Before Tribunal To Be Given Weightage Over Contents Of FIR In Case Of Contradiction

 It is clear from the evidence on record of PW–1 as well as PW–3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW–1 & PW–3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW–1 herself travelled in the very car and PW–3, who has given statement before the police, was examined as eye–witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. {Para 8}

Supreme Court

JUSTICE R. SUBHASH REDDY JUSTICE HRISHIKESH ROY

National Insurance Company Ltd. Vs. Chamundeswari & Ors.

CIVIL APPEAL NO. 6151 OF 2021

1st October 2021

Author: R.SUBHASH REDDY, J.

Citation: 2021 ALL SCR (ONLINE) 523

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Whether court can apply the Motor Vehicles Act principles for determining compensation for death caused due to negligence of Municipal Corporation?

 Issue No. 4:

18. The age of the deceased was 11 years. He was brilliant and smart child of the plaintiff. He was not earning member at the relevant time. The question is a lumpsum compensation as prayed/claimed by the plaintiff in the absence of any guidelines or formula, whether can be granted by this Court.

19. The learned Counsel for the defendants submitted that under the BMC Act they do not have any provision to pay any claim such as no fault liability and/or lumpsum amount to the parents or any person related to the deceased who died in such accident or incident, whether it is because of negligence or no negligence of the Corporation. In the present case, as referred above, there is a negligence of the defendants which resulted into the loss of son of the plaintiff.

27. This is a case of accident resulted because of negligence of the Municipal Corporation as recorded above. It is difficult to Judge and/or assess the future income of the deceased who was aged about 11 years old at the relevant time. The plaintiff at the relevant time was working in the Mill where he was getting salary of Rs. 1500/- to Rs. 2000/- p.m. Therefore, this facet itself is not sufficient to assess the compensation as claimed.

28. In this background, immediate formula which according to me is available in such unguided and uncleared situation is to apply the principle of Motor Accidents Claims as contemplated.

Bombay High Court

Shripat Shankar Panchal vs Municipal Corporation For Gr. ... on 2 August, 2007

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Whether disciplinary proceeding should be initiated against Judicial officer only on basis that he has passed wrong order?

 That is why we again repeat that one of the
responsibilities of the High Court on the administrative
side is to ensure that the independence of the District
judiciary is maintained and the High Court acts as a
guardian and protector of the District judiciary.
16. We would, however, like to make it clear that we are
in no manner indicating that if a judicial officer passes
a wrong order, then no action is to be taken. In case a
judicial officer passes orders which are against settled
legal norms but there is no allegation of any extraneous
influences leading to the passing of such orders then the
appropriate action which the High Court should take is to
record such material on the administrative side and place
it on the service record of the judicial officer
concerned. These matters can be taken into consideration
while considering career progression of the concerned
judicial officer. Once note of the wrong order is taken
and they form part of the service record these can be

taken into consideration to deny selection grade,
promotion etc., and in case there is a continuous flow of
wrong or illegal orders then the proper action would be
to compulsorily retire the judicial officer, in
accordance with the Rules. We again reiterate that
unless there are clear-cut allegations of misconduct,
extraneous influences, gratification of any kind etc.,
disciplinary proceedings should not be initiated merely
on the basis that a wrong order has been passed by the
judicial officer or merely on the ground that the
judicial order is incorrect.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8950 OF 2011

KRISHNA PRASAD VERMA Vs  STATE OF BIHAR 

Deepak Gupta, J. (oral)
Dated:September 26, 2019

Citation: 2020(2) MHLJ 296

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Whether driver is necessary party in motor accident claim petition?

The analysis of our findings aforementioned is:

(i) In the first set of claims cases, the driver of the bus was held to be negligent and, therefore, a ruling that the driver is a necessary party would mean that the bus driver must necessarily be involved in these proceedings. However, the driver of the bus had sufficient opportunity to make a representation against the allegation of negligence as he was examined as RW1 in the claim cases filed by the passengers, even though he was not formally impleaded as a Respondent. Hence, the High Court has correctly held that he was a 'party' to the proceedings.

(ii) In the claims filed by the driver of the bus (namely the Appellant herein), specific allegations were made against the driver of the truck. Hence, the question is whether the driver of the truck must necessarily be made a party to the proceedings. He was not.

Here, one must bifurcate the terms 'party' and 'necessary party'. 'Party' has been correctly defined by the High Court in the impugned judgment in terms of involvement in the proceedings regardless of formal impleadment. However, a necessary party has been defined in the 5th edition of Black's Law Dictionary as follows:

In pleading and practice, those persons who must be joined in an action because, inter alia, complete relief cannot be given to those already parties without their joinder. Fed. R. civil P. 19 (a)....

First and foremost, as has been stated in the body of the judgment, natural justice would mandate involvement of a driver, as an adverse finding on negligence cannot and should not be made against him without giving him the opportunity to at least make a representation as a witness.

More importantly, however, one must look at the kind of evidence which must be led in such cases. Appellants have, as noticed hereinbefore, relied on Patel Roadways (supra) to try and prove that the driver need not be a party. Firstly, this case only relates to formally impleading the driver as a party. However, the fact that joint tortfeasors have been mentioned in the judgment is relevant.

Joint tortfeasors, as per the 10th edition of Charlesworth & Percy on Negligence, have been described as under:

Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the cause of action against each of them in the same, namely that the same evidence would support an action against them, individually- Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time. This occurs in cases of (a) agency; (b) vicarious liability; and (c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them.

Hence, employer and employee, the former being vicariously liable while the latter being primarily liable are joint tortfeasors and are therefore jointly and severally liable. However, by virtue of the fact that the cause of action is the same and that the same evidence would support an action against either, it follows that this evidence must necessarily include an examination of the driver who is primarily liable. To make a finding on negligence without involving the driver as at least a witness would vitiate the proceedings not only on the basis of the fact that the driver has not been given an opportunity to make a representation, but also because the evidence to make a finding regarding negligence would necessarily be inadequate.

24. On this basis, a driver should be made a 'party' to the proceedings. It was done in the instant case. In the present case, the contention of the counsel for the respondent Insurance Company, namely that without contrary evidence led by the appellant or Corporation, the finding of negligence on the part of the appellant cannot be interfered with, must be upheld. Without a deposition on the part of the truck driver and without his involvement at least as a witness, an adverse finding on negligence cannot be made against him.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3041 of 2008

Decided On: 29.04.2008

Machindranath Kernath Kasar Vs. D.S. Mylarappa and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and V.S. Sirpurkar, JJ.

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Whether delay in filing of appeal can be condoned if preparation of decree was delayed due to delayed deposit of court fees by plaintiff?

If any period of the delay in preparing the decree was attributable to the default or negligence of the appellant, the latter shall not be entitled to the exclusion of such period under Section 12(2) of the Limitation Act, 1908.

23. Applying the law as enunciated above to the facts of the case in hand, it will be seen that the drawing up or coming into existence of the original decree, of which the copy was sought, was conditional upon the payment of court-fee by the plaintiffs within thirty days of the pronouncement of the j judgment (30-10-1956). The plaintiffs did not comply with that direction within the time originally specified in, the judgment. They deposited the court-fee only on 18-1-1957 within the extended time which was granted without notice to the defendant appellant Even after that, the; decree was not signed till 30-1-1957. Under the judgment or any rules of the court, the appellant was not required to take any step towards the preparation of the decree. No period of the delay in drawing up the decree was attributable to the fault of the appellant. The delay was mainly due to the delayed deposit of the court-fee by the plaintiffs and partly due to the laxity of the office of the court. Although the appellant prematurely filed an application for getting a copy of the non-existent decree on 26-11-1956, he could legitimately defer that action till the condition precedent on which the drawing up of the decree was dependent, was performed by the plaintiffs. It would not have been extravagant for the appellant to wait till the court-fee was deposited by the plaintiffs, for, in the event of non-deposit of the court-fee, there was a reasonable possibility of their suit being dismissed, or at any rate, of the decree against which the defendant felt aggrieved and eventually appealed, not being passed. Under the circumstances, the appellant was entitled to the exclusion of the entire time between the date of the pronouncement of the judgment and the date of signing of the decree, as the time requisite for obtaining a copy of the decree. After such exclusion--avoiding double counting-his appeal filed in the court of the Additional Civil Judge on 12-2-1957, was fully within time.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 130 of 1968

Decided On: 01.04.1975

Balmukund  Vs. Lajwanti and Ors.

Hon'ble Judges/Coram:

A.C. Gupta, R.S. Sarkaria and Y.V. Chandrachud, JJ.

Citation:(1975) 1 SCC 725; 

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Whether forest officials are liable to pay damages if seized property was damaged due to their negligence?

 In the present case, the plaintiff seeks damages on the count that on account of the negligence on the part of the defendants the teakwood to which he was entitled has been damaged/decayed. It cannot be disputed that after the forest-produce was seized by the Authorities in the year 1991, it was the responsibility as well as the liability of the defendant No. 3 to take care of the same. On account of the said teakwood being kept in the open for more than seven years, it got decayed as it was in contact with nature. The material on record is, thus, sufficient to come to the conclusion that the defendants were negligent in taking care of the forest-produce when it was within their custody pursuant to the seizure. In the light of provisions of Section 43 of the said Act, it is held that the defendants would be liable for damages on account of the loss caused due to their negligent act in taking care of the seized teakwood.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 400 of 2004

Decided On: 22.03.2018

 Chintaman Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2018(4) MHLJ 719

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Whether insurer can be permitted to raise defence of negligence U/S 163A of Motor vehicles Act?

5 The issue which arises before us is no longer res integra and is covered by a recent judgment of three judges of this Court in United India Insurance Co. Ltd. v. Sunil Kumar & Anr.,1 wherein it was held that to permit a defence of negligence of the claimant by the insurer and/or to understand Section 163A of the Act as contemplating such a situation, would be inconsistent with the legislative object behind introduction of this provision, which is “final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time”. The Court observed that if an insurer was permitted to raise a defence of negligence under Section 163A of the Act, it would “bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention”. Consequently, it was held that in a proceeding under Section 163A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2816 OF 2018

SHIVAJI  Vs  DIVISIONAL MANAGER, UNITED INDIA

INSURANCE CO. LTD.

Dr D Y CHANDRACHUD, J.

Dated:August 09, 2018

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Whether court can allow amendment of pleading even if there inadvertence or infraction of rules of procedure?

It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2366 of 2010

Decided On: 14.05.2015

 Mahila Ramkali Devi and Ors. Vs.  Nandram and Ors.

Hon'ble Judges/Coram:

M. Yusuf Eqbal and Amitava Roy, JJ.

Citation: 2015(4) ALLMR 426 SC

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Whether amendment of pleading can be rejected on ground of delay or negligence on part of party?

It cannot be disputed that ordinarily all amendments ought to be allowed, which are essential for to determine the real controversy in the suit. The precaution for the Court must be to see that the proposed amendment should not materially alter/vary/annul the substantive relief claimed in the plaint and in other words, it should not be a substitute for the original cause of action on which the original suit has been filed. By means of proposed amendment, a Court is to see whether any prejudice is likely to be caused to the other side which cannot be compensated by means of costs. It is to be borne in mind by the trial Court that no litigant should suffer either on account of mistake committed by a Court of Law on account of technicalities or hyper-technicalities of law. To put it in brief, an amendment sought for by a litigant either as plaintiff or defendant ought to be allowed by the Court to reduce/minimize the litigation between the parties to avoid multiplicity of proceedings. Furthermore, an error or mistake, which if not fraudulent, should not be the ground for rejecting the Application for amendment of pleadings. If the amendment/amendments sought for in the amendment application goes to the very root of the matter or it concerns with the real issues in controversy between the respective parties, the said application/amendment, in the considered opinion of this Court, ought to be allowed, notwithstanding the fact there may be a negligence, omission, on the part of a particular party applying for amendment in regard to the inordinate or long delay that has occurred relating to the proposed amendment. It is no doubt the discretion of the Court before which the application comes for hearing when it deals with an amendment application seeking amendment of plaint. Order VI, Rule 17 of Civil Procedure Code gave wide discretion to permit amendment even by condoning laches or delay, to impose costs and permit amendment for just and proper final decision in the suit. While allowing an amendment application in respect of pleadings, a Court cannot be expected to go into the merits and demerits of the amendment. It must be borne in mind that, the rules of procedure are only handmaid of Justice. A party/parties should not be denied/refused the just relief, because of some inadvertence, mistake or negligence or even the infraction of rules of procedure committed by the parties to the litigation. The substantive justice is to determine the real controversy between the parties finally by a conclusive judgment and order. It may be noted that the relief is based on the same facts previously pleaded. The relief prayed in the suit in substance appears to be based on the title claimed by the plaintiffs and for possession and injunction. The delay to prefer amendment or negligence may be penalized by imposing reasonable cost, but not by the complete or blanket refusal to amend the plaint because the real controversy in the suit is required to be decided finally by the trial Court. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 291 of 2012

Decided On: 04.07.2013

 Kamlesh and Ku. Anita Vs.Kalyan and Atul Vishnu Dharmadhikari

Hon'ble Judges/Coram:

A.P. Bhangale, J.

Citation: 2013(6) ALLMR 537.

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Whether court can allow amendment of written statement on ground of negligence of Advocate?

 In the instant case, the statement that in spite of being duly instructed, the learned Advocate on record did not incorporate the pleading as sought to be raised is the only justification for not raising the plea earlier. However, it cannot be taken to answer the test of "due diligence" as required by the proviso under Rule 17, Order 6, Civil Procedure Code. The proviso contemplates parties to exercise due care and caution in raising the matter before the Court and once trial commenced, no new or additional plea can be permitted to be raised unless the party shows that with all diligence at its command, it could not raise it before commencement of the trial. The due diligence prescribed by the proviso is of the parties and of nobody else including the Advocate on record. If Counsel of the party refuses to take up certain pleas wished by his client to be taken up, the least and perhaps the only thing the client can do to get his wish fulfilled is to go to another counsel who will pay heed to him or else accept the judgment of his counsel for good. If he adopts the latter course, he cannot say later on, almost as an afterthought and by way of repentance, that although he toiled hard, he could not raise the plea earlier due to the stand taken by his earlier counsel. If a party chooses to accept the advice of Advocate "completely believing in him and his extra ordinary experience" as mentioned in the petitioner's amendment application in the present suit, instead of going to another Advocate well in time, he cannot be heard to say and imply that he was diligent when he "duly instructed" the Advocate but was helpless when his Advocate refused to follow the particular instructions. Due diligence contemplated by the said proviso is something akin to situation of helplessness or of things, beyond one's own control. Such is not the case here. A party always has the choice of Advocates.

13. A party can of course say, he being not a legal expert, would not know immediately that decision of his Advocate is not sound and so he would not be in a position to promptly exercise his choice of Advocates and would be able to do so only after passage of some time, when he would learn or be told about the incorrectness of approach of his Advocate. Even this justification, in my opinion, cannot answer the test of due diligence. The reason being that a representative or Advocate and the party being represented in a case are not two separate identities in that case, so far as conduct of the case is concerned. Whatever an Advocate does on behalf of the client is considered to be done by the party himself. The acts of the Advocate before the Court are binding upon the party he represents and what he submits before the Court on facts is only what the party says and what he says in law is with the approval, express or assumed, of the party. In other words, all actions taken before the Court by an Advocate, are the actions of the party. So, there is no splitting of concept of due diligence, one of the party and the other of the Advocate, so as to enable the party to be excused for negligence of the Advocate just by showing his own diligence. If such a ground is to be taken as a good ground, it may provide an effective tool to the lazy and indolent parties to conveniently get over the rigour of due diligence test prescribed under the proviso to Rule 17, Order 6, Civil Procedure Code. All that he would have to do is change the Advocate blaming it on the previous Advocate.

IN THE HIGH COURT OF BOMBAY AT GOA

W.P. No. 625 of 2013

Decided On: 11.04.2014

Conception Fernandes Vs.Tasneem Shaikh

Hon'ble Judges/Coram:

S.B. Shukre, J.

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Whether it can be presumed that guardian was negligent if suit was proceeded exparte against minor?

 However the position may be different in a case where the fraud or negligence is alleged against the guardian. What amounts to negligence must depend on the facts of each case. What has to be considered is whether by reason of the conduct of the guardian the minor has been prejudiced and lost a valuable right. It was held by this court in Gangadharan v. Narayanan (MANU/KE/0058/1959 : AIR 1959 Kerala 169), that the mere fact that the guardian remained ex parte is not sufficient to establish negligence. It must further be shown that there was a real defence to the action. Once it is held that the minor was represented by the Guardian/mother and had become ex parte, and it is found that there is negligence on the part of the mother in prosecuting the case, the question is whether such a decree against the minor requires to be set aside. As already indicated, Order XXXII Rule 3A clearly indicates that no decree passed against a minor shall be set aside merely on the ground that the Guardian had an interest in the subject matter of the suit whereas it has to be shown that prejudice has been caused to the interest of the minor. Though in the case on hand, guardian ad litem has not been appointed by the Court, the mother represented the minor and had appeared, contested and filed objection on her behalf and on behalf of the minor, opposing the claim of the petitioner in the case. She had no interest adverse to that of the minor. But she did not prosecute the case and remained ex parte. She did not take any steps to set aside the ex parte decree on behalf of the minor within a reasonable period. Materials placed on record would show that the petitioner does not have a valid defence in that case especially in the light of the DNA report. What purpose will be served in reopening the matter is also not explained. Under such circumstances, we are of the view that condoning the delay of such a long period and setting aside the ex parte decree was unwarranted.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 540 of 2016 (R)

Decided On: 31.03.2017

Abdul Salam Vs. Chalil Sajitha and Ors.

Hon'ble Judges/Coram:

A.M. Shaffique and K. Ramakrishnan, JJ.

Citation: AIR 2017 Kerala 151

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Whether court can presume that prejudice was caused to minor child if she was not properly represented in suit?

The correct view, I think, is that no irregularity by way of an omission to send a notice as required by Order 32, Rule 3 shall operate to render void the presumed representation of the minors in a suit, unless such an omission has in fact prejudiced their defence, and such prejudice is not a matter of assumption or presumption but of proof see Suresh Chunder Waru Choudhry v. Jugut Chunder Pal [1887] 14 Cal. 204, Bhagwan Dayal v. Param Sukh Das [1915] 37 All. 179, and in this Court the case reported in Nachiappa Chetti v. Chinniah Ambalan MANU/TN/0534/1916 : [1916] 4 L.W. 362 and particularly in Ramaswami Chetti v. Doraiswami 1923 Mad. 465. The ratio decidendi in Maruthamalai v. Palani [1913] 37 Mad. 235 is to the same effect. It is clear then that the lower Courts were not justified in setting aside the decree in O.S. No. 274 of 1917 without first considering the question whether in fact the minors had been prejudiced in their defence.

IN THE HIGH COURT OF MADRAS

Decided On: 06.02.1924

 K. Tirumalacharyulu alias Ramanujacharyulu and Ors.

Vs.

Ammisetti Venkiah and Ors.

Hon'ble Judges/Coram:

Wallace, J.

Citation:AIR 1924 Madras 763

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Supreme Court Judgment on Basic principles for deciding quantum of damages

This brings us to the question of quantum of damages. No doubt,
actual/exact proof of damage is not given by the appellants. At
the same time, we find that the trial court had appointed Court
Commissioners to verify the position of agricultural lands of the
appellants. The said Court Commissioners, also known as
panchas, had visited the site and submitted their report for
inspection confirming the loss suffered by the appellants due to
submergence of the agricultural fields of the appellants. In this
report, they specifically pointed out that as many as 1500 boar
trees were uprooted and washed away as a result of the release
of water from the dam which flooded the fields of the appellants.
Several photographs were also annexed along with the report to
support the aforesaid conclusion. This kind of evidence, which
went unrebutted, proves that the appellants have, in fact, suffered

damages. No doubt, the appellants have not led any evidence to
show actual cost of each tree, in order to arrive at the precise
quantum of damages. However, even in the absence of such an
evidence showing exact loss suffered, the appellants would still
be entitled to reasonable compensation once factum of suffering
loss stands proved. Where a wrong has been committed, the
wrong-doer must suffer from the impossibility of accurately
ascertaining the amount of damages. Likewise, the party claiming
compensation must give the best evidence to prove damages. In
the instant case, we find that the loss is not only on account of
rain, though a part thereof can be attributed to the nature, but also
due to the negligence on the part of the respondent authorities in
not taking due precautions in time which could have avoided
some loss/damage, if not entirely. If damage has resulted from
two or three causes, namely, from an act of God as well as a
negligent act of a party, the award of damages can be
apportioned to compensate only the injury that can be attributed
to the negligent act of the respondents {See Workman v. G.N.
Ry. Co.11}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1866 OF 2016

VOHRA SADIKBHAI RAJAKBHAI Vs  STATE OF GUJARAT & ORS.
Dated: MAY 10, 2016.

Citation:(2016) 12 SCC 1

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Whether mere negligence or error of judgment on part of Advocate will amount to professional misconduct?

The present appeal preferred under Section 38 of the
Advocates Act, 1961 (for brevity, 'the Act') assails the
correctness of the order dated 15.10.2006 passed by the
Disciplinary Committee of the Bar Council of India in BCI
TR Case No.138 of 2005 whereby the said authority has
found the appellant guilty of gross negligence in discharge of
his professional service to the client and accordingly
imposed the punishment of reprimand with a further
stipulation that he shall pay a sum of Rs.5,000/- to the Bar
Council of India and an equivalent amount to the
complainant within two weeks' time from the date of receipt
of the order failing which he would stand suspended from
practising for a period of six months.
2. As the factual score would unroll, the
respondent-complainant engaged the appellant as advocate
in respect of a matrimonial dispute and during the
pendency of the matrimonial case, the wife of the
respondent breathed her last due to kidney failure in the
year 2002. The appellant advised the
complainant-respondent that as the wife had expired, there
was no justification to prosecute any further the case for
divorce and it was advisable to withdraw the said litigation.
In the meantime, the respondent engaged him to file a
complaint under Section 138 of the Negotiable Instruments
Act, 1881 (for short, 'the N.I. Act') as a cheque issued by one
Ramachandran in favour of the respondent for a sum of
Rs.75,000/- (Rupees seventy five thousand only) had been
dishonoured. It is not in dispute that the appellant thought
it appropriate not to file a complaint under the N.I. Act but
he felt it apposite to file a complaint case before the
competent Magistrate under Section 420 of the Indian Penal
Code and accordingly he did so. As is demonstrable, the
learned Magistrate directed investigation to be conducted
under Section 156(3) of the Code of Criminal Procedure.
The eventual result of the said investigation has not been
brought on record.
It is urged by Mr. Parikh that when no finding is
returned that the cheque was kept back by the appellant,
there is no gross negligence. On the contrary, as he would
submit, it was handed over to the investigating agency
which was directed by learned Magistrate to carry out the
investigation under Section 156(3) CrPC. His only fault is
that he could not get the acknowledgment.
The Constitution Bench, in the matter of Mr. 'P' an
Advocate, (supra) has ruled that mere negligence or error of
judgment on the part of an advocate would not amount to
professional misconduct. It has been further held therein
that error of judgment cannot be completely eliminated in
all human affairs and mere negligence may not necessarily
show that the advocate who is guilty of it can be charged
with misconduct. The Constitution Bench, as is
demonstrable, has drawn a distinction between 'negligence'
and the 'gross negligence'. We think it appropriate to
reproduce the said passage. It is as follows:-
“But different considerations arise where the
negligence of the Advocate is gross. It may be that
before condemning an Advocate for misconduct,
courts are inclined to examine the question as to
whether such gross negligence involves moral
turpitude or delinquency. In dealing with this
aspect of the matter, however, it is of utmost
importance to remember that the expression
"moral turpitude or delinquency" is not to receive
a narrow construction. Wherever conduct proved
against an Advocate is contrary to honesty, or
opposed to good morals, or is unethical, it may be
safely held that it involves moral turpitude. A
willful and callous disregard for the interests of
the client may, in a proper case, be characterised
as conduct unbefitting an Advocate. In dealing
with matters of professional propriety, we cannot
ignore the fact that the profession of law is an
honourable profession and it occupies a place of
pride in the liberal professions of the country.
Any conduct which makes a person unworthy to
belong to the noble fraternity of lawyers or makes
an Advocate unfit to be entrusted with the
responsible task of looking after the interests of
the litigant, must be regarded as conduct
involving moral turpitude. The
Advocates-on-record like the other members of
the Bar Advocates are Officers of the Court and
the purity of the administration of justice
depends as much on the integrity of the Judges
as on the honesty of the Bar. That is why in
dealing with the question as to whether an
Advocate has rendered himself unfit to belong to
the brotherhood at the Bar, the expression "moral
turpitude or delinquency" is not to be construed
in an unduly narrow and restricted sense.”10
[Emphasis Supplied]
16. Ms. K. Sarda Devi, learned counsel for the respondent,
per contra, would urge that the case of the respondent is
squarely covered by the dictum of the Constitution Bench
inasmuch as the Disciplinary Committee of the Bar Council
of India has held that there was gross-negligence on the
part of the appellant.
17. On a studied scrutiny of the evidence in this context,
the factual score, the act of the present appellant cannot be
treated to be in the realm of gross negligence. It would be
only one of negligence. The tenor of the impugned order, as
we notice, puts the blame on the appellant on the
foundation that he had not received the acknowledgment.
He has offered an explanation that he had given the cheque
to the police. There has been no delineation in that regard.
That apart, there is no clear cut analysis on deliberation on
gross negligence by the advocate. The Disciplinary
Committee found the appellant guilty of gross-negligence as
he had failed to get the acknowledgment from the
complainant-respondent. The examples given by the
Constitution Bench are of different nature. In the obtaining
factual matrix, therefore, we are unable to accept the
conclusion arrived at by the Disciplinary Authority of the
Bar Council of India that the negligence is gross. Hence we
are impelled not to accept the submission advanced by
learned counsel for the respondent.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3860 OF 2007
T.A. KATHIRU KUNJU 
 V
JACOB MATHAI & ANR
Dated:February 16, 2017.
Citation: AIR 2017 SC 1041,(2017)5 SCC 755

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Whether delay can be condoned after imposing costs if sufficient cause for delay condonation is not given?

It is a settled position of law that in absence of any proper
explanation for  delay, the same cannot be  condoned merely for  the
asking.  The explanation has to be reasonable or plausible to enable the
Court to exercise judicial discretion – Balwant Singh (supra).  Similarly,
the Court has to record a satisfaction that the explanation for the delay
was reasonable or satisfactory – P.K. Ramachandran (supra).   Though a
liberal approach is required to be adopted, such approach cannot be so
exercised when there is total absence of explanation for the delay being
caused – Maniben Shah (supra).
As regards the direction to pay costs, it is already noted that
the costs can be ordered subject to there being any reasonable ground to
condone the delay.  By imposition of costs the requirement of furnishing
sufficient cause cannot be dispensed with.  Costs cannot be a substitute
for absence of reasons to condone the delay.  The rights that had accrued
in  favour  of  petitioner  in  view of  the  decree   in  his  favour  are  also
required to be taken into consideration.   Therefore, in absence of any
reason whatsoever being furnished by the respondents in the application
for condonation of delay dated 15.02.2012, the delay in filing restoration
application   could   not   have   been   condoned.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.6835 OF 2014
Rajendra Namdeorao Akre,

V 
 Rajkumar Bhalerao Balbudhe,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:  A.S. CHANDURKAR, J.
DATE:         30th JUNE, 2015.
Citation: 2016(1) MHLJ 184

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Whether negligence in accident case can be proved by production of Police charge-sheet?

As regards the finding regarding negligence also, as rightly

pointed out by the learned counsel for the claimants, the production of

Police charge-sheet is prima facie sufficient evidence of negligence. A

Division Bench of this Court in Pazhaniammal's case (2011(3) KLT

648) has addressed that question and has held as follows in paragraphs


7 and 8:

        "As a general rule it can safely be accepted that production of

        the police charge sheet is prima facie sufficient evidence of

        negligence for the purpose of a claim under S.166 of the Motor

        Vehicles Act. A system cannot feed itself on a regular diet of

        distrust of the police. Prima facie, charge sheet filed by a

        police officer after due investigation can be accepted as

        evidence of negligence against the indictee. If any one of the

        parties do not accept such charge sheet, the burden must be on

        such party to adduce oral evidence. If oral evidence is adduced

        by any party, in a case where charge sheet is filed, the Tribunals

        should give further opportunity to others also to adduce oral

        evidence and in such a case the charge sheet will pale into

        insignificance and the dispute will have to be decided on the

        basis of the evidence. In all other cases such charge sheet can

        be reckoned as sufficient evidence of negligence in a claim

        under S.166 of the Motor Vehicles Act. We mean to say that on

        production of such charge sheet the shifting of burden must

        take place. It is not as though we are not conscious of the

        dangers and pit falls involved in such an approach. But we feel

        that adoption and recognition of such practice would help to

        reduce the length of the long queue for justice before the

        Tribunals. The judicial recognition of the practice will help the


       Tribunals to ensure the optimum use of judicial time at their

       disposal for productive ventures. We do not intend to say that

       collusive charge sheets need be accepted. Wherever on the

       facts of a given case the Tribunals feel that the police charge

       sheet does not satisfy their judicial conscience, the Tribunals

       can record that the charge sheet cannot be accepted and can call

       upon the parties, at any stage, to adduce oral evidence of the

       accident and the alleged negligence. In such a case, the issue of

       negligence must be decided on the other evidence, ignoring the

       charge sheet."



Herein, through P.W.1, the charge sheet has been marked as Ext.A3.

The same, therefore, is prima facie sufficient evidence of negligence.

The onus of proof has been shifted to the insurance company and as

already found above, it is recorded in the "B" diary, that the third

respondent insurance company reported that there is no further

evidence.  Therefore,    the finding on negligence has been rightly

rendered by the Tribunal. 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

           MR.JUSTICE T.R.RAMACHANDRAN NAIR
                                   &
             MR. JUSTICE K.P.JYOTHINDRANATH

        WEDNESDAY, THE 20TH DAY OF MAY 2015

                       MACA.No. 1075 of 2009 ( )
          
THE ORIENTAL INSURANCE CO.LTD.Vs SHOBHANA OMANAKUTTAN,
       

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