section 8
Apportionment of liability in case of contributory negligence.
The Kerala Torts (Miscellaneous Provisions) Act, 1976Civil197610 sections5 chapters
Part IV APPORTIONMENT OF LIABILITY IN CASES OF CONTRIBUTORY NEGLIGENCE
Statutory text
- (1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage: Provided that —
- (a) this sub-section shall not operate to defeat any defence arising under a contract;
- (b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this sub-section shall not exceed the maximum limit so applicable.
- (2) Where damages are recoverable by any person by virtue of subsection (1), subject to any reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.
- (3) Section 7 shall apply in any case where two or more persons are liable or would, if they had all been sued, be liable, by virtue of sub-section (1) in respect of the damage suffered by any person.
- (4) Where any person dies as the result partly of his own fault and partly of the fault of any other person or persons, and accordingly if an action were brought for the benefit of the estate under Part II of this Act, the damages recoverable would be reduced under subsection (1), and damages recoverable in an action brought for the benefit of the dependants of that person under the Indian Fatal Accidents Act, 1855, shall be reduced to a proportionate extent.
- (5) Where, in any case to which sub-section (1) applies, one of the persons at fault avoids liability to any other such person or his personal representative on the plea that the claim is barred by limitation, he shall not be entitled to recover any damages or contribution from that other person or representative by virtue of that sub-section. Explanation.- In this section, “fault” means negligence, breach of statutory duty or other act or omission which gives rise to a liability to tort or would, apart from this Act, give rise to the defence of contributory negligence; and “damage” includes loss of life and personal injury.
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