Anil Kumar vs Devi Lal
2022 Latest Caselaw 4480 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

          S.B. Civil Miscellaneous Appeal No. 866/2004

Anil Kumar S/o Munna Lal, aged about 37 years, R/o 44,
Rampura Roopa, Tonk Phatak, Jaipur (Raj)
                                                        ----Appellant/Claimant

                                   Versus

1. Devi Lal S/o Govind Ram, R/o 18-D, Shiv Colony, Vidhyadhar
Nagar, Jaipur
2. Damodar Prasad Sharma S/o Shri Girdhari Lal, R/o 33,
Ramnagar Colony, Jaipur
2. The United India Insurance Company Ltd. Through Regional
manager, Sahara Chamber, Tonk Road, Jaipur
                                          ----Respondents/Non-Claimants

For Appellant(s)         :     Mr. Jitendra Mitruka
For Respondent(s)        :     Mr. Amit Singh Shekhwat
                               Mr. Sukhram Jatav



       HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

                                Judgment

05/07/2022

The present civil misc. appeal has been filed by the

appellant-claimant under Section 173 of the Motor Vehicles Act,

1988 (for short 'the Act of 1988') against the judgment and award

dated 04.01.2003 passed by the Court of Motor Accident Claims

Tribunal No.1, Jaipur (for short 'the Tribunal') in claim case No.

1552/1996, by which the claim petition filed by the claimant

appellant has been partly allowed and an amount of Rs.

1,91,300/- has been awarded as compensation for the injuries

sustained by him.

(2 of 8) [CMA-866/2004]

Learned Tribunal after framing the issues, evaluating the

evidence available on the record and after hearing the counsel for

the parties, decided the claim petition of the claimant appellant

awarding compensation to the tune of Rs. 1,91,300/- under

various heads in favour of the claimant appellant.

Learned counsel for the appellant claimant submits that in

the aforesaid accident, the appellant has sustained 76.67%

permanent disability and the disability certificate (Ex. 13) has

been issued in this regard by the competent authority. Counsel

further submits that because of the aforesaid permanent

disabilities, the appellant is not in a position to live his life and

discharge his daily routine activities which he was discharging

prior to the accident. Counsel submits that on account of the

aforesaid injuries and permanent disability, the service of an

attendant is required and not a single penny has been awarded

under this head. Counsel further submits that Dr. M.K. Mathur

(AW-5) appeared in the witness box and he stated that the

appellant has sustained 76.67% permanent disability and due to

the aforesaid disability, he has to remain dependent on others for

discharging his daily routine activities. Counsel further submits

that though the factum of accident was established on the record

of the Tribunal but the Tribunal has treated the instant case as the

case of contributory negligence only on the ground that on the day

of accident the injured was sitting on the two-wheeler and in all

three persons were sitting on the two-wheeler. The Tribunal has

seriously erred in holding that there was 50% contributory

negligence by saying that there was violation of traffic rules and

as per the traffic Rules, three persons cannot sit on the two-

wheeler. Counsel further submits that this cannot be a reason to

(3 of 8) [CMA-866/2004]

hold that there was 50% contributory negligence on the part of

the appellant claimant because the claimant was not plying the

vehicle. Counsel submits that it may be a case of composite

negligence, so under these circumstances, the Tribunal has

committed an error in holding 50% contributory negligence on the

part of the appellant. In support of his contentions, counsel for the

appellant has placed reliance on the judgment decided by this

Court in the case of National Insurance Company Vs. Kastoori

Devi and Shanti, reported in 1987 ACC 258 and recent

judgment delivered by the Hon'ble Supreme Court in the case of

Mohammed Siddique and Anr. Vs. National Insurance

Company Ltd. and Ors. (Civil Appeal No. 79/2020 decided

on 08.01.2020). Counsel further submits that under the facts

and circumstances of the case, the impugned judgment and award

needs suitable enhancement by this Court.

Per contra, learned counsel for the respondent-Insurance

Company as well as counsel for the other respondents submit that

the Tribunal while deciding the claim petition of the appellant

claimant has correctly taken into consideration the factors while

calculating the award in this case on the anvil of evidence

produced before it. Thus, the judgment dated 04.01.2003 does

not call for any interference of this Court.

Learned counsel, however, are not in a position to controvert

the submissions made by counsel for the appellant claimant with

respect to re-computation of the award in the present case in the

light of the judgment delivered by this Court in the case of

Kastoori Devi (supra) and judgment delivered by the Hon'ble

Apex Court in the case of Mohammed Siddique (supra).

(4 of 8) [CMA-866/2004]

I have considered the submissions made at the Bar and gone

through the judgment and award dated 04.01.2003 passed by the

Tribunal as well as the material available on the record.

It is not in dispute that on account of the injuries sustained

by the claimant in a road accident occurred on 15.07.1996, the

appellant has sustained 76.67% permanent disability. It is also not

in dispute that as per the evidence of AW-5 Dr. M.K. Mathur, after

the accident the appellant is not in a position to perform his daily

routine activities and his memory has also become weak and he is

not in a position to discharge the functions which he was

performing prior to the accident but the Tribunal has not taken

these facts into consideration while passing the impugned award.

So far as the contention of the respondent-Insurance

Company with regard to the fact that there was 50% contributory

negligence on the part of the claimant appellant is concerned,

the same is not tenable in the light of judgment delivered by the

Hon'ble Apex Court in the case of Mohammed Siddique (supra),

wherein para Nos. 13, 14 and 29 has been 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 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 194-C 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.

(5 of 8) [CMA-866/2004]

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 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 PW-3 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 reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside.

29. Thus, we find that the High Court committed a serious error (i) in holding the victim guilty of contributory negligence (ii) in rejecting the evidence of PW-2 with regard to the employment and monthly income of the deceased and (ii) in applying the multiplier of 14 instead of 18. Therefore, the appeal is allowed and the impugned order of the High Court is set aside. The award of the Tribunal shall stand restored. There shall be no order as to costs."

Similarly in the case of Kastoori Devi (supra), this Court has

held in para Nos. 11 and 12 as under:-

"11. In Mohinder Singh Sohal and Anr. v. Rameth Kumar and Ors. 1981 ACJ 326, 3 real brothers were going on

(6 of 8) [CMA-866/2004]

motor-cycle. A Government Jeep driven rashly hit the motorcycle. Two brothers died and one was injured. The Tribunal held 40 per cent liability as contributory negligence of the driver of the motor cycle as he was having no licence and carrying two more persons not permitted by law. 20 per cent of the amount was cut for lump sum. The Punjab and Haryana High Court held that contributory negligence cannot be assumed for having no licence or carrying more passenger than permitted under law. If driver of motor cycle was driving with due care and caution it cannot be held that he was liable for contributory negligence. Appeal was allowed and the amount of compensation was enhanced and interest @ 6 per cent per annum was allowed from the date of application. Reliance in the above case was placed on Gobald Motor Service Ltd. v. R.M.K. Veluswami and Ors. 1958-65 ACJ 179, and Dharam Chands. Shivpat and Ors.., 1966 ACJ 319 (Punj.).

12. It has been held in The United India Fire and General Insurance Co. Ltd., and Anr. v. Mrs. Sayar Kanvar and Ors. 1976 ACJ 426 by a Division Bench of this Court that there is a difference between a composite negligence and contributory negligence. In case of composite negligence liability cannot be apportioned. We are clearly of the view that in the facts and circumstances of this case merely because Arvind Kumar was carrying 3 more persons on the pillion of the motor-cycle, it cannot be inferred that he was responsible for contributory negligence in the accident. The motor-cycle was insured comprehensively as is evident from Ex. AW 15/1 the policy of National Insurance Company. Such policies cover the risk of any person including third party and as such it would cover the risk of the driver of the motor-cycle as well as of the pillion riders. It was a case of composite negligence of the drivers of motor cycle as well as the truck as such insurance companies of both the vehicles would be liable to pay the compensation jointly and severally."

This is not in dispute that at the time of accident in all three

persons were sitting on the two-wheeler. It is worthwhile to

mention here that the appellant claimant was not plying the

vehicle at the time of accident, so it cannot be said that there was

any contributory negligence on the part of the appellant claimant.

Hence, the Tribunal has committed an error in holding that there

was 50% contributory negligence on the part of the appellant. The

contentions raised by the counsel for the appellant has bearing

(7 of 8) [CMA-866/2004]

looking to the judgment delivered by this Court in the case of

Kastoori Devi (supra) and judgment delivered by the Hon'ble

Apex Court in the case of Mohammed Siddique (supra). Looking to

the permanent disability of 76.67%, the appellant is entitled to

get lumpsum amount of Rs. 3 Lakhs for loss of future amenities

and is also entitled to get lumpsum amount of Rs. 2 Lakhs for the

service of attendant who is taking care of the appellant claimant

after the accident.

In view of the above discussion, the impugned award needs

enhancement and the same is re-computed as under:-

Amount awarded by the Rs. 3,82,600/-

Tribunal (without deducting
50%             contributory
negligence)
Loss of future amenities           Rs. 3,00,000/-

Towards service of attendant Rs. 2,00,000/-

Total compensation Rs. 3,82,600 + Rs. 3,00,000 + Rs.

awardable                          2,00,000
                                   =Rs. 8,82,600/-

Less amount awarded by the Rs. 8,82,600 - Rs. 1,91,300/- = Tribunal Rs. 6,91,300/-

Enhanced amount of                 Rs. 6,91,300/-
compensation

Thus, an amount of Rs. 6,91,300/- is enhanced in the

present case. The respondent-Insurance Company is directed to

pay the enhanced amount of Rs. 6,91,300/- in addition to the

amount already awarded by the Tribunal vide judgment dated

04.01.2003 within a period of two months from the date of receipt

of a certified copy of this order. The enhanced amount shall carry

interest @ 6% per annum from the date of filing of the claim

petition till the actual payment is made.

It is further ordered that out of the enhanced amount, the

Tribunal shall disburse a sum of Rs. 50,000/- in the Saving Bank

(8 of 8) [CMA-866/2004]

Account of the claimant-appellant and the balance amount of the

enhanced compensation be invested in any Nationalized Bank

initially for a period of three years and interest accrued on the said

amount shall be paid to the appellant-claimant on monthly basis.

With the above observations, the appeal filed by the

appellant-claimant stands disposed of.

All the pending application(s), if any, also stand disposed of.

Registry is directed to send back the record of the Tribunal

forthwith.

(ANOOP KUMAR DHAND),J

Ritu/63

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