In the case of Malikarjuna G. Hiremath v. Branch Manager, 2009 (121) FLR 216, the Hon’ble Apex Court had considered the fact situation when the deceased was employed as driver of truck and was driving the vehicle on the instructions of the owner of the truck and when the vehicle reached Gurugunta, he went to the pond and while taking bath at a pit, he had slipped and drowned. The Hon’ble Supreme Court in the said case has held that the cause of death of the deceased had no casual connection with the nature of work performed by the deceased in his employment. Thus, the Hon’ble Apex Court was of the view that the injury which cause the death of workman could not be said to have arisen out of and in the course of employment, and consequently, it was held that the liability of compensation cannot be fastened upon the owner or the insurer of the vehicle to pay compensation. Oriental Insurance Co. Ltd. v. Somdatt Sharma, 2019 (160) FLR 249.
Tag Archives: accident
A line of precedents, have dealt with the meaning of the expression “accident”. In Union of India v. Sunil Kumar Ghosh, (1984) 4 SCC 246 it was held that:
“An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words, an event or occurrence the happening of which is ordinarily expected in the normal course by almost everyone undertaking a rail journey cannot be called an “accident”. But the happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident.”
In a subsequent decision in ESI Corpn. v. Francis De Costa , 1993 Supp (4) SCC 100, the expression “accident” was defined as follows:
“The popular and ordinary sense of the word “accident” means the mishap or an untoward happening not expected and designed to have an occurrence is an accident. It must be regarded as an accident, from the point of view of the workman who suffers from it, that its occurrence is unexpected and without design on his part, although either intentionally caused by the author of the act or otherwise.”
The same principle was adopted in Jyothi Ademma v. Plant Engineer , (2006) 5 SCC 513, where it was held as under :
“The expression “accident” means an untoward mishap which is not expected or designed.”
P. Ramanatha Aiyar’s Law Lexicon, 3rd Edn., 2012, defines the expression “accident”:
“an event that takes place without one’s foresight or expectation; and event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected, chance, causality, contingency.”
The above Law Lexicon, relying on Lovelace v. Travelers’ Protective Assn., 47 Am St Rep 638 : 126 Mo 104 (1894), defines the expression “death by accident” as:
“Death from any unexpected event which happens, as by chance, or which does not take place according to the usual course of things.”
In order to constitute an accident, the event must be in the nature of an occurrence which is unnatural, unforeseen or unexpected. National Insurance Co. Ltd. v. Mousumi Bhattacharjee, (2019) 5 SCC 391
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. 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 of the part of the injured which contributed to the accident is referred to as his contributory negligence. When 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 stands reduced in proportion to his contributory negligence. Khenyei v. New India Assurance Company Ltd., 2015 (3) AWC 2945.
‘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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his ‘contributory negligence’. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. Pawan Kumar v. Harkishan Dass Mohan Lal and others, (2014) 3 SCC 590.
“Negligence” means omission to do something which a reasonable and prudent person guided by the consideration which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a give case, even doing what one was ought to do can constitute negligence.
“Culpable Rashness” is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria).
“Culpable negligence” is acting without the consciousness that the illegal and mischevious effect will follow, but in circumstances which show that the actor has not exercised the action incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civil duty of circumspection. Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284.