New India Assurance Co. Ltd. vs Smt. Sharda Devi and others

Sunil Ambwani and Kashi Nath Pandey, JJ.—We have heard Shri Vinay Khare, learned counsel appearing for the New India Assurance Co. Ltd. Shri S. D. Ojha has accepted notice and appears for the claimant-respondents.

The first appeal from order u/s 173 of the Motor Vehicles Act. 1988 arises out of the award of the Motor Accident Claims Tribunal/Additional District Judge, Court No. 17, Meerut in M.A.C. No. 1235 of 2009. Smt. Sharda Devi and others v. Rahul Gupta and another, dated 16.8.2011, by which an award of Rs. 4.76.900 with 6% interest from the date of filing of the claim petition has been directed to be paid to the widow and two minor children of the deceased.

It is alleged by Shri Vinay Khare. learned counsel for insurance company, that the application u/s 170 of the Act was allowed. Although the accident is not denied, the Tribunal has erred in law in failing to take into account the contributory negligence of the deceased driver of the Motor Cycle No. U. P. 15-R-247. who died as a result of accident with Indica Car No. UCM-00-T-46425 on 27.9.2009. He was not wearing the helmet and was driving the motor cycle with his wife and two minor children aged 14 years and 8 years. It is stated that the Tribunal has failed to consider the contributory negligence of the deceased for not wearing the helmet and driving the motor cycle with three pillion riders. The contributory negligence has been allowed only to the extent of 5%. which is much less taking into account the conditions in which the motor cycle was being driven.

Shri S. D. Ojha. learned counsel for claimant-respondents would submit that there is a clear finding in the evidence of P.Ws. 1 and 2. that the Indica Car had suddenly turned from left to right and had collided with motor cycle, which was being driven on extreme left side on the road. He submits that the deceased was a Government servant and that his pay slip of August. 2009 proved that he was earning Rs. 10.748 per month. Even after deducting GPF and insurance his pay was Rs. 8.148 and thus the Tribunal erred in law firstly in reducing the income to half at Rs. 4.100 on the ground that the wife will be entitled to family pension and thereafter reducing the amount another one-third, which the deceased could have spent on himself. According to Shri Ojha the multiplier of 15 was correctly applied and that taking into account the total income of Rs. 8.148 the award is on very lower side. He submits that the claimants may file an appeal for enhancement of the award.

The Tribunal has taken into consideration the statement of the wife, who was riding on the pillion, that his husband Rakesh was wearing helmet. Further in view of the findings based on oral evidence, which is not disputed that the motor cycle was being driven on the left side of the road and that Indica Car suddenly took a turn towards right and collided with the motor cycle, there was no question of applying principles of contributory negligence. The negligence In wearing helmet and allowing the children to ride on the back seat, common with most of lower middle class families travelling on two wheelers cannot be taken as composite or contributory negligence on the part of the deceased, when it is found that he was liable for any wrong doing in driving or otherwise on account of which accident was caused. The breach of rules in driving two wheeler without helmet and driving it with three pillion riders, by itself cannot be treated as composite or contribution to negligence on his part. The principle of composite and contributory negligence has been explained in paragraph 10 in A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, :

''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 wrong-doers. In such a case, each wrong-doer, 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 wrong-doer separately, nor is it necessary for the Court to determine the extent of liability of each wrong-doer 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 stands reduced in proportion to his contributory negligence.

In Sudhir Kumar Rana Vs. Surinder Singh and Others, , the Supreme Court held in paragraphs 6, 7 and 8 as follows :

If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.

The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.

We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. Appellant is entitled to the said sum of Rs. 30.000 by way of compensation with interest at the rate of 7% per annum from the date of the award till making of the payment. Even otherwise there is no reason as to why in view of the nature of the injuries he has suffered, he should be deprived of even the petty sum of Rs. 30.000 by way of compensation. The appeal is allowed with the aforementioned direction. No costs.

The finding of the Tribunal, that the driver of Indica Car was rash and negligent in driving the car, does not suffer from any error of appreciation of evidence. It is not uncommon for a person in our country to ride two wheelers with his wife and children. Though more than one pillion rider is not permitted, he cannot be said to have contributed in the negligence specially in this case when Indica Car was found negligent in taking a sudden turn towards right and colliding with the motor cycle. The negligence of Indica Car was proved by evidence. In our opinion the compensation is on much lower side, and that the contributory negligence at 5% was not properly applied.

The first appeal from order is dismissed.