Contributory Negligence

By:- Manas Mishra

Many times, we overlook various rules which are made for ourselves or if we say, for the public welfare. It is our duty to act or omit acts which we are not supposed to obey and not obey, respectively. We should always take reasonable steps, keeping our eyes open and adhering to various legislations.

We all are supposed to be law-abiding person and everything depends upon our acts or omission of acts. Acting or obeying restricted acts always result in the creation of unavoidable happenings while the consequences of not following welfare concerned laws cost us more than expected.

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When the plaintiff corresponds by himself to the injury suffered by the negligence of the defendant or unlawful conduct, he is held guilty of contributory negligence. Contributory negligence comes into existence when the plaintiff does not take reasonable care on his part to avoid the harmful consequences. He contributes himself to the mishappening of the event.


  • A person, riding on the wrong side of the road and meet with the accident arising out of the collision of the car.

Municipal Corpn. Of Greater Bombay v. Laxman Iyer[1]

In this case, it was said that both the parties would be liable for the negligence arising out of an accident. In cases related to contributory negligence, the question of liability would depend upon whether either of them would have tried to take due care and avoid the consequences of other’s negligence. Whoever between them would have taken necessary care to get the consequences rid of, arising out of other’s negligence, would be liable for the negligence. Contributory negligence is completely dependent on the conduct of a plaintiff.

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For exercising defense under contributory negligence, defendant mustprove that the plaintiff did not take reasonable care avoid the accident.

Rural Transport Service v. Bezlum Biwi[2]

The conductor having known the fact that the bus is full of passengers and cannot afford more yet invited many others and made them comfortable at the roof of the bus. The driver tried to overtake the bus, forgetting that passengers of roof of the bus. This action of driver led to death of one of the passengers of roof due to injury arose out of hit by the branch of a tree. The court held that driver and conductor would not be liable for this misshaping since there was contributory negligence on the part of deceased passengers and others who had implied consent to travel on the roof of the bus, taking risk.

Rules for determining Contributory Negligence

  1. The plaintiff’s carelessness regarding the contributory negligence defense does not have the identical meaning as the tort of negligence. The plaintiff does not have to owe the other party a duty of care in this case. What must be proven is that the plaintiff failed to take reasonable precautions for his own safety, therefore contributing to his own harm. Thus, all it takes to show contributory negligence is to demonstrate to the jury and satisfy them that the injured person did not take reasonable care of himself in his own interests and contributing to his own lack of care for himself.

Bhagwat Sarup V. Himalay Gas Co.[3]

It was held that the deliveryman’s fault was solely his own. It has also been noted that simply giving an axe/hammer to the delivery person on request did not indicate contributory negligence on the petitioner’s part, because the petitioner was a layman, whereas the delivery person was a trained individual who was expected to understand the consequences of the conduct he was performing.

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  1. It is insufficient to establish that the plaintiff did not take reasonable precautions to ensure his own safety. It should still be demonstrated that his carelessness caused to the resultant damage. The defense of contributory negligence cannot be invoked if the defendant’s carelessness might well have inflicted the same harm even when the plaintiff had already been cautious, and the petitioner’s fault may not be the main reason for the crash.

Agya Kumar V. Pepsu Road Transport Corporation[4]

It was held there has been simply carelessness on the part of the bus driver, and despite the reality that the rickshaw was overburdened, there was almost no contributory negligence on the part of the rickshaw driver, because the rickshaw’s overburden had no bearing on the accident’s occurrence.

National Insurance Co. V. Kastoori Devi[5]

In this case there was a collision between a motorcycle consisting of three to four people and truck. The collision led to serious accident. It was held that the circumstance that the motorcyclist was transporting three people in the passenger seat did not suggest that he was guilty of contributory negligence. Unless  he veered off the road due to its overweight so this led to the outcomes would he even be convicted of contributory negligence.


Scope of Contributory negligence as defence

Contributory Negligence on the claimant’s behalf was proven to be a good defence, and the claimant’s case was dismissed. The claimant was barred from bringing further actions against the reckless defendant due to his own carelessness. Plaintiff’s carelessness does not really imply a violation of duty to one of the other parties, but rather a failure to take reasonable precautions to ensure his own protection. The rule of law states that if both parties share fault for the catastrophe, regardless matter how minor that culpability is on one side, the loss is borne by the party who fails.

Butterfield V. Forrester[6]

It was held that the plaintiff has no basis of claim even though he could have averted the mishap by taking reasonable precautions. When one individual is at fault, it does not negate the need for the other one to take reasonable care of oneself. To establish this claim, there must be an obstacle on the road caused by the defendant’s fault and no lack of due prudence on the claimant’s to prevent it.

The doctrine posed a significant burden for plaintiffs, since even little carelessness on their side might result in their losing their case against a defendant whose carelessness was the primary source of the complainant’s damages. Laws concerned with contributory negligence have been amended by initiating Last opportunity Rule.

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Last Opportunity Rule

When two people are careless, the one who had the later chance to avoid the accident by using ordinary caution should be held responsible for the loss. It indicates that if the defendant is negligent and the plaintiff has a later opportunity to prevent the defendant’s negligence’s effects, the plaintiff will be held responsible. Similarly, if the defendant had the final chance to avoid the disaster, he would be held responsible for the whole damage suffered by the plaintiff.

Davies V. Mann[7]

The complainant chained his donkey’s forefeet and abandoned it on a winding road. The defendant was driving his horse-drawn cart too quickly, and the donkey was killed as a result of his carelessness. Despite his own fault, the plaintiff was found to be entitled to compensation since the defendant failed to follow the last-chance rule.

Subhakar V. Mysore State Road Transport Corporation[8]

The court lowered the amount of compensation due since the claimant was at fault. The claimant-appellant, who was riding a bicycle at the time, abruptly switched to the right side of the road. He was hit by the respondent’s bus, which caused him to fall and injure his leg, needing two and a half months in the hospital. It was held that due to the fact that both parties contributed equally to the accident via their negligence, the claimant’s compensation was lowered by 50%.

Vidya Devi V. M.P. Road Transport[9]

In this case, a motorcyclist collided with a bus and died because of the collision. The bus driver was also found to be at fault for failing to keep a good lookout to avoid a probable accident. It was held that the plaintiff was entitled to one-third of the damages, and he would have been entitled to if the dead motorcyclist had not been negligent.

Municipal Corporation of Greater Bombay V. Shri Laxman Iyer[10]

Supreme court held that in the case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable. In this context means that damages are reduced to such an extent as the Court thinks it is just and equitable having regard to the claim.

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Doctrine of Alternative Danger

Despite the fact that the plaintiff is expected to be cautious and the defendant’s carelessness, there may be times when the plaintiff is justified in taking a risk since the defendant has created a dangerous scenario. The plaintiff may feel puzzled or worried because of a risky scenario caused by the defendant, and to protect himself, his property, or a third party from harm, he may take an alternative risk.

As a result, the law allows the plaintiff to face an alternative hazard to protect himself from the threat posed by the defendant. His action against the defendant will not fail if the route he chooses cause him some injury.

Shyam Sundar V. State of Rajasthan[11]

Due to defendants’ carelessness, (the State of Rajasthan), a truck actually belonged to them went up in flames after just four kilometres on a specific day. When one of the inmates leapt out to escape the flames, he collided with a stone by the roadside and died instantly. The defendants were found to be responsible for the same.

Sayers V. Harlow Urban District Council[12]

It was held that Defendants were responsible because the plaintiff’s damage was a natural result of their breach of duty.

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Contributory Negligence of Children

What constitutes contributory negligence in the instance of an adult may not apply to a kid since a youngster cannot be assumed to be as cautious as an adult. To determine whether a suspect is convicted of contributory negligence or not, the maturity of the individual must be taken into account.

  1. Sriniwas V. K.M. Parasivamurthy[13]

In this case, it was held that a 6-year-old kid lacks the road sense and familiarity of his or her elders, the plaintiff cannot be held liable for contributory fault.

D.T.C. V. Lalita[14]

The position of children for the purpose of contributory negligence was explained by Delhi High court I this case:-

“In the case of a held of tender age, conduct on the part pf such child contributing to an accident may not preclude it from recovering in circumstances in which similar conduct would preclude a grown up person from doing so.”

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Contributory negligence often led the claimant to meet with loss as it acts as defence for the defendants. Myriads of judicial decisions show that claimants do not prove their point to get compensated by the defendant when there is a reckless conduct of other party. On other side, it works with great ease as of its defence nature for them. There is no doubt that certain proviso exists for this defence. For instance, in Last Opportunity Rule in which who is found that he has had chance to avoid the mishappening at last, but nothing is brought into action, so he will be liable for reckless conduct. Contributory Negligence is much seen in motor vehicle accident cases.

Many a times there is no way left where plaintiff has to take corrective measures on the spot to save himself or others or the property knowing the fact that complex circumstances have been created by the defendant, he takes the risk. Further while deciding the case, Court has to consider the age in Contributory negligence arises out of conduct of children.

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[1]AIR 2003 SC 4182

[2]AIR 1980 Cal. 165

[3]AIR 1985 H.P. 41

[4]AIR 1980 P. & H. 183

[5]1988 ACJ 8 (Raj.)

[6](1809) 11 East 60

[7](1882) 10 M. and W. 546

[8] AIR 1975 Kerala 73

[9] AIR 197 M.P. 89.

[10]AIR 2003 SC 4182

[11]AIR 1974 SC 890

[12](1958) 2 All E.R. 342

[13]AIR 1976 Goa 1

[14]AIR 1982 Delhi 558


Contracts in Fashion Industry

By:- Prachi Parekh


Nowadays, people love to spend upon fashion-related products and this has helped the fashion industry to grow tremendously within a short span of time. The growth in the industry has led to employment generation and variety of career opportunities in the same, as well as innovative services and techniques are being welcomed by the industry. This has again led to growth and discovery of various new channels of providing these services and for which different contracts have to be created for each and every channel. Let us find out about various contracts that can be made under this industry.


  1. CONSIGNMENT CONTRACT: This is a contract between a retailer and his agent wherein the retailer grants the right to sell, merchandise, conduct an exhibition for sale of the fashion apparel or inventory. Here, the retailer is called as consignor and his agent as consignee in the whole contract.

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  1. Preamble: It depicts the details and facts of whole contract in short
  2. Duration clause
  3. Terms of sale of products clause
  4. Percentage that each party would receive clause or Consignment fee clause
  5. Payment options clause
  6. Liability for lost or damaged stock clause or Insurance Clause
  7. Effect on non-sale clause
  8. Minimum Price clause:the price below which the fashion products should not be sold
  9. Location and storage of stock during consignment clause
  10. Expenses clause
  11. Modification/Amendment clause
  12. Applicable law clause

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  1. SHOWROOM RENT CONTRACT: It is a contract between the shop owner or showroom owner and the designer of fashion products for renting out the shop space to sell his stock. It is a type of a rent contract between these parties wherein the shop owner grants his shop to the designer against periodical payments of rent for the letting.


  1. Preamble
  2. Duration clause
  3. Expenses clause
  4. Terms of the rent payment clause
  5. Applicable law clause
  6. Dispute Resolution clause: In which court to refer the dispute in is included in it.
  7. Terms of letting clause: for example, whether the showroom will be furnished or not
  8. Payment of taxation clause
  9. Breach of contract clause
  10. Liability for damage to the showroom clause
  11. Security deposit clause: the amount of deposit to be given by the designer to the owner for rent
  12. Modification/Variation clause
  13. Termination clause: it also includes notice period to be given to each other


  1. FRANCHISE CONTRACT IN FASHION INDUSTRY: This is acontract wherein one party grants the authority to other to open and operate the business in the name of the selling party. The party granting such a right is called as a franchisor and other party is termed as a franchisee. We find many franchises in fashion industry such as Being Human,Fittin, Choupette, Duke,, Bombay dyeing[2], etc.


  1. Preamble
  2. Franchise fee clause
  3. Security Deposit clause
  4. Royalties clause
  5. Mode of Payment clause
  6. Confidentiality clause: wherein the franchisee agrees not to disclose franchisor’s trade secrets
  7. Standards of Operations clause: wherein fixed set of standards have been set and the franchisee needs to follow them accurately
  8. Inspection clause: Right of franchisor to inspect the premises at regular intervals
  9. Applicable laws clause
  10. Proper registrations by franchisor relating to licenses clause
  11. Advertising and Brand Promotion clause
  12. Training, supervision and support clause
  13. Use of trademark and intellectual property clause: This is one of the most important clauses wherein the franchisor needs to have registered the trademark and should have exclusive rights for use of such a trademark
  14. Duration of contract clause
  15. Renewal clause
  16. Termination of contract clause
  17. Dispute Resolution clause: for example, arbitration, mediation, conciliation
  18. Force Majeure clause: Wherein any of the parties fails to perform their functions due to unforeseen circumstances, then what should be done?
  19. FASHION RELATED ADVERTISING AND PROMOTIONAL CONTRACT: It includes a contract between a designer/retailer/manufacturer of fashion products and an advertising and marketing agency for promoting these products through various channels in exchange of an advertising fee.


  1. Preamble
  2. Duration of contract
  3. Scope of Work clause
  4. Budget and Payment schedule clause
  5. Advertising fee/price clause
  6. Consequences of late payment clause
  7. Breach of contract clause
  8. Termination clause
  9. Dispute Resolution Clause
  10. Copyright clause: This ensures that the ad agency is properly disclosing all the due credits and information relating to their use of any product or services which leads to prevention in copyright violations.
  11. Confidentiality clause
  12. Indemnity clause: If the designer/retailer/manufacturer faces any financial hit, or some similar situation and has not paid the ad agency as per the terms of the contract, then they will need to indemnify the ad agency for their loss
  13. Terms and conditions clause

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  1. FASHION INDUSTRY EMPLOYMENT CONTRACTS:The employment contracts in fashion industry have a wide range. These can include employment for modelling and acting, designing, stitching, manufacturing, transportation and distribution/shipping of fashion products.


  1. Preamble: Information relating to the facts for entering into the contract, parties and type of employment
  2. Duration clause
  3. Force Majeure clause
  4. Salary/Wages/Remuneration related clause
  5. Number of working days clause
  6. Confidentiality clause
  7. Annual/sick Leave clause
  8. Maternity/Paternity leave clause
  9. Liability for breach of contract clause
  10. Termination clause
  11. Dispute resolution clause
  12. Places to be worked at clause
  13. Other perks or social benefits clause
  14. Overtime clause
  15. Retrenchment Benefits clause
  16. Outsourcing/ sub-contracting clause
  17. Restrictions/prohibitions in employment clause: Sometimes there may be restrictions to the person being employed by and an employer in the fashion industry relating to age, marriage etc and is included in this clause.
  18. Survivability clause
  19. Severability clause

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  1. OUTSOURCING CONTRACTS IN FASHION INDUSTRY:These contracts include outsourcing certain services or products which are important to the fashion industry. For example, fashion events management services, human resource services, apparel outsourcing, technology outsourcing.


  1. Preamble: including the reason, facts and details of parties entering into the contract
  2. Retained Rights clause: Each party retains certain rights with respect to title, interest etc
  3. Terms and conditions clause: It may include that the services or products must be of good quality and free from any defects
  4. Remuneration clause
  5. Duration clause
  6. Liability for Breach clause
  7. Confidentiality clause
  8. Survivability clause: it ensures that even after the contract has been performed certain terms and conditions in the contract will still remain in force, this is because of the confidentiality and non-disclosure clause, as the trade secrets have to be kept secret even after completion of the performance to the contract.
  9. Termination clause
  10. Guarantee/Warrantee clause
  11. Modification/Amendment clause
  12. Technical assistance clause
  13. Territories of providing services clause
  14. Inspection and acceptance clause
  15. Applicable Law clause
  16. Severability clause:Due to any uncertainty if provision of this contract becomes unlawful or impossible to perform, then this clause ensures that the whole contract is not termed as unenforceable but except the certain provisions remaining of the contract remains in force with full validity.
  17. Independent contractor clause
  18. Dispute resolution clause


Thus, as we saw above these were some of the different types of contracts under the fashion Industry and some of which though contains similar clauses but are also specialised as per their work. Some clauses such as severability, survivability, dispute resolution, applicable governing laws, confidentiality clause, force majeure clause are amongst the most important clauses which safeguards the contract against uncertain or unforeseen events that can make the contract disputable or void. Inserting these clauses ensures that the contract remains in force and is termed to be valid. The non-disclosure clause also ensures that the valuable trade secrets are not revealed by the parties to the contract and the survivability clause exists even after the parties have finished dealing or performing as per the contract and if such a term is breached, the consequences need to be faced by the defaulting party as per the provisions in that effect in the respective contract.