Punjab-Haryana High Court
United India Insurance Co. ... vs Kavita And Others on 21 July, 2022
110
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.1262 of 2020 (O&M)
DATE OF DECISION : 21.07.2022
United India Insurance Co. Ltd. .....Appellant
versus
Kavita and Others .....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Harsh Aggarwal, Advocate for the appellant
..
ALKA SARIN, J. (Oral):
The present appeal has been preferred by the Insurance
Company challenging the award dated 19.11.2019 passed by the Motor
Accident Claims Tribunal, Jalandhar on the ground that there was an
element of contributory negligence since there were four pillion riders on
the motorcycle.
The brief facts relevant to the present lis are that the claimants
filed the present claim petition on the ground that the claimants along with
their son Prabhjot (since deceased) and Nanak Sarup were going on a
motorcycle bearing registration No.PB-37-F-1027 to their Mama's house
on the occasion of Raksha Bandhan. At about 6.00 P.M. when they reached
PARKASH CHAND
2022.07.22 13:03
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petrol pump near Sagar Restaurant, Police Station Adampur, a bus bearing
registration No.PB-07-AS-4979 being driven by Ranjit Singh, respondent
No.3 herein, came at a high speed in a rash and negligent manner and
struck the motorcycle of the claimants from behind due to which they fell
on the road and received serious injuries. Prabhjot was taken to Miglani
Hospital, Adampur from where he was referred to Armaan Hospital,
Jalandhar where he eventually succumbed to his injuries on 26.08.2018. It
was stated that the deceased was 9 months old.
The claim petition was contested by respondent Nos.3 and 4
herein, who were driver and owner of the offending vehicle, on the ground
of maintainability and locus standi. It was further stated that there was no
fault on the part of the driver and the accident took place due to the
negligence of claimant Hardeep Kumar who suddenly lost control over his
motorcycle and without giving any signal turned the motorcycle towards
his right side. The appellant-Insurance Company also contested the claim
petition on the ground that there was no negligence on the part of the driver
and that the bus driver was not holding a valid and effective driving
licence.
On the basis of the pleadings of the parties and the evidence
on the record, the Tribunal returned a finding on Issue No.1 that the
documentary evidence produced by the claimants had gone virtually
uncontroverted as respondent No.3 herein (driver) of the offending vehicle
did not step into the witness box. It was held that the accident had occurred
due to the rash and negligent driving of respondent No.3 herein.
Compensation to the tune of Rs.9,63,700/- along with interest at the rate of
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2022.07.22 13:03
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7.5% per annum from the date of filing of the claim petition till recovery
was awarded.
The learned counsel for the appellant would contend that there
was an element of contributory negligence in as much as there were four
pillion riders on the motorcycle.
Heard.
On 12.02.2020 the present case was adjourned sine die to
await the outcome of the reference to the Division Bench in FAO No.2218
of 2012 (Sona Devi & Ors. vs. Ramesh Kumar & Ors. decided on
07.03.2014) on the point regarding the effect on a claim of compensation in
case of a motor accident involving a motorcycle which was being driven
with two pillion riders in violation of the law on the ground of contributory
negligence. The Division Bench of this Court vide order dated 20.02.2020,
relying on a Supreme Court judgment in Mohammed Siddique & Anr. vs.
National Insurance Company Ltd. & Ors., AIR 2020 SC 520, held that the
issue referred to the Division Bench stood answered by the Supreme Court
in the case of Mohammed Siddique (supra) and no further orders were
required to be passed. In the case of Mohammed Siddique (supra), it was
held as under:
"13. But the above reason, in our view, is flawed. The
fact that the deceased was riding on a motor cycle
along with the driver and another, may not, by itself,
without anything more, make him guilty of contributory
negligence. At the most it would make him guilty of
being a party to the violation of the law. Section 128 of
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the Motor Vehicles Act, 1988, imposes a restriction on
the driver of a two-wheeled motor cycle, not to carry
more than one person on the motor cycle. Section
194C inserted by the Amendment Act 32 of 2019,
prescribes a penalty for violation of safety measures
for motor cycle drivers and pillion riders. Therefore,
the fact that a person was a pillion rider on a motor
cycle along with the driver and one more person on the
pillion, may be a violation of the law. But such
violation by itself, without anything more, cannot lead
to a finding of contributory negligence, unless it is
established that his very act of riding along with two
others, contributed either to the accident or to the
impact of the accident upon the victim. There must
either be a causal connection between the violation
and the accident or a causal connection between the
violation and the impact of the accident upon the
victim. It may so happen at times, that the accident
could have been averted or the injuries sustained could
have been of a lesser degree, if there had been no
violation of the law by the victim. What could
otherwise have resulted in a simple injury, might have
resulted in a grievous injury or even death due to the
violation of the law by the victim. It is in such cases,
where, but for the violation of the law, either the
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2022.07.22 13:03
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accident could have been averted or the impact could
have been minimized, that the principle of
contributory negligence could be invoked. It is not the
case of the insurer that the accident itself occurred as
a result of three persons riding on a motor cycle. It is
not even the case of the insurer that the accident would
have been averted, if three persons were not riding on
the motor cycle. The fact that the motor cycle was hit
by the car from behind, is admitted. Interestingly, the
finding recorded by the Tribunal that the deceased was
wearing a helmet and that the deceased was knocked
down after the car hit the motor cycle from behind,
are all not assailed. Therefore, the finding of the High
Court that 2 persons on the pillion of the motor cycle,
could have added to the imbalance, is nothing but
presumptuous and is not based either upon pleading or
upon the evidence on record. Nothing was extracted
from PW3 to the effect that 2 persons on the pillion
added to the imbalance.
14. Therefore, in the absence of any evidence to show
that the wrongful act on the part of the deceased victim
contributed either to the accident or to the nature of
the injuries sustained, the victim could not have been
held guilty of contributory negligence. Hence the
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reduction of 10% towards contributory negligence, is
clearly unjustified and the same has to be set aside."
The learned counsel has not been able to show any evidence
on the record to show that the accident had resulted due to the fact that
there were four pillion riders on the motorcycle. The offending bus hit the
motorcycle from behind and there is not an iota of evidence to show that
there was any wrongful act on the part of the motorcycle rider that
contributed in any way to the accident. In view of the above, there is no
merit in the arguments raised by the learned counsel for the appellant.
The appeal is accordingly dismissed. Pending applications, if
any, also stand disposed off.
21.07.2022 (ALKA SARIN)
parkash JUDGE
NOTE:
Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
PARKASH CHAND
2022.07.22 13:03
I attest to the accuracy and
authenticity of this order/judgment.
