Provisions of Section 128 as noticed above are safety
measures for the driver and pillion rider and breach of such
safety measures which may amount to negligence on part of the
driver of the motor cycle, but cannot be termed as contributory
negligence, unless the immediate cause of the accident or
damage suffered by the driver or pillion rider would be on
account of violation of the said provision.
Recently this court in Ram Ratan v. Shobha & Ors. : S.B.
Civil Misc. Appeal No.665/2009 decided on 01.04.2013 held that
merely because a driver had consumed liquor and while going on
correct side of the road is struck by a offending vehicle, which is
being
driven
rashly
and
negligently,
merely
because
the
suffering driver had consumed liquor, it cannot ipso facto said
that he had contributed to the said accident.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL MISC. APPEAL NO.324/2010
United India Insurance Company Limited, Jodhpur
Vs.
Smt. Santosh Devi & Ors.
Date of Judgment
15th April, 2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
REPORTABLE
Citation; 2014(4) ALLMR(JOURNAL) 4 Raj
This appeal under Section 173 of the Motor Vehicles Act,
1988 ('the Act') has been preferred by the Insurance Company
aggrieved by the judgment and award dated 09.07.2009 passed
by the Motor Accident Claims Tribunal cum Additional District
Judge, Nagaur ('the Tribunal'), whereby, a compensation of
Rs.5,04,500/- alongwith interest @ 6% per annum from the date
of application has been awarded.
The facts in brief are that on 23.03.2008 one Sampat Ram
alongwith his cousin brother Rameshwar and his (Rameshwar's)
wife Suman were riding on a Motor Cycle No.RJ21-SS-1491 and
at around 3:00 PM when they reached Bhadana Fhata on Deh to
Nagaur Highway No.65, a Tata Sumo (sports utility vehicle
known by its brand name) having registration No.RJ21-T-0731,
which was being driven rashly and negligently, struck the motor
2
cycle and seriously injured Sampat Ram, who died on way to the
hospital. Rameshwar and his wife Suman also suffered injuries.
An application for compensation was filed by the wife,
children and parents of deceased Sampat Ram claiming a sum of
Rs.31,40,000/- as compensation for the untimely death of
Sampat Ram.
A reply to the said application was filed by the owner and
driver of the vehicle and the averments made in the application
were denied.
The appellant Insurance Company filed its reply and stated
that by driving the motor cycle with three persons, deceased
Sampat Ram violated provisions of the Act, for which, he himself
was responsible and the Insurance Company is not liable for any
compensation.
After issues were framed and evidence was led by the
claimants and the Insurance Company, the Tribunal found that
the Tata Sumo was being driven rashly and negligently by the
driver, which resulted in the accident and untimely death of
Sampat
Ram
and
awarded
the
compensation
as
noted
hereinbefore.
Learned counsel for the appellant raised contention that
the Tribunal has committed gross error in not considering the
contributory negligence on the part of the deceased, who was
driving the motor cycle by carrying two pillion riders.
It was
submitted that the Tribunal has totally ignored this aspect of the
matter and committed gross error in holding that the driver of
3
Tata Sumo was solely responsible for the accident.
Learned counsel further submitted that it has come on
record that not only the deceased was driving the motor cycle
with two pillion riders, but they were also carrying a large
suitcase and other goods with them, which clearly goes to prove
the contributory negligence of the deceased.
In this connection reliance was placed on provisions of
Section 128 of the Act, which reads as under:-
“Sec. 128. Safety measures for drivers and pillion
riders.- (1) No driver of a two wheeled motor cycle shall
carry more than one person in addition to himself on the
motor cycle and no such person shall be carried otherwise
than sitting on a proper seat securely fixed to the motor
cycle behind the driver's seat with appropriate safety
measures.
(2)
In addition to the safety measures mentioned in Sub-
sec. (1), the Central Government may, prescribe other
safety measures for the drivers of two-wheeled motor cycles
and pillion riders thereon.”
Reliance was also placed on the judgment of this Court in
Yuvraj v. Shri Prakash Chandra & Ors. : S.B. Civil Misc. Appeal
No.804/1996 decided on 04.01.2008 in support of the contention
that as the deceased has broken the law, even if, negligence
cannot be attributed to him, but certain amount of rashness is
certainly attributable to him.
On the other hand, learned counsel for the claimants
submitted that the Tribunal has rightly awarded compensation
and has not committed any error warranting any interference. It
was submitted that the Tribunal has rightly appreciated the oral
and documentary evidence placed on record and fastened the
negligence on the part of the Tata Sumo driver and the said
4
finding does not require any interference.
It was further
submitted that in the absence of any evidence on the side of the
appellant that three persons travelling on the motor cycle has
contributed to the accident, no negligence could be fastened on
the rider of the motor cycle.
I have considered the submissions made by the counsel
appearing for the parties and perused the impugned award as
well as the material evidence placed on record.
It is an admitted fact that the accident had occurred on
23.03.2008 when the deceased was riding motor cycle with two
persons Rameshwar and Suman as pillion riders and was
proceeding from Deh to Nagaur National Highway 65 and when
he reached near Bhadana Fhata, the driver of Tata Sumo drove
the vehicle very fast in a rash and negligent manner and hit the
motor cycle when the said motor cycle was moving on its correct
side of the road and due to the said impact the deceased
sustained fatal injuries and the pillion riders also got injured.
The finding of the Tribunal in this regard based on Exhibit-
3, which is the site plan prepared by the police, clearly indicates
that the Tata Sumo driver struck the motor cycle by going on the
extreme right and dragged him for about 20 ft. A bare look at
the said site plan leaves no manner of doubt that the accident
occurred on account of the negligence on the part of the driver
of Tata Sumo, which resulted in the accident and in absence of
any evidence to the contrary, it was rightly held by the Tribunal
that accident was caused due to rash and negligent driving of the
5
driver of Tata Sumo.
So far as the submissions of learned counsel for the
appellant that the deceased has contributed to the accident is
concerned, merely because there is violation of the provisions of
the Act or Rules or the policy conditions, it is not automatic that
in every case the principle of contributory negligence is to be
applied mechanically unless there is evidence to prove that the
accident also took place because of such act i.e. taking/travelling
more persons in a motor cycle, which resulted in the accident. If
the driver/owner or Insurance Company is able to prove that it is
because of the addition of one more person the accident
occurred,
the
position
would
be
different,
otherwise,
the
Insurance Company/owner would be liable to make good the
loss/compensation.
As noticed hereinbefore, it is the Tata Sumo driver, who
had gone to the other side of the road and hit the motor cycle
causing accident and there is no evidence to show that the
accident occurred because of travelling of three persons in the
motor cycle.
It is trite law that negligence of the plaintiff, which can be
described
as
contributory
negligence,
must
have
casual
connection with the damage suffered by him.
A Division Bench of this Court in National Insurance Co.
Ltd. & Ors. v. Kastoori Devi & Ors. : 1998 ACJ 8 held thus:-
“9.
The next question which calls for consideration is as
to what was the negligence of Arvind Kumar, who was
driving the motor cycle and how the liability in such cases
can be apportioned. It is no doubt correct that Arvind
Kumar should not have taken 4 persons including himself on
6
the motor cycle and taking of so many persons on motor
cycle was not permissible under the Motor Vehicles Rules
but this fact alone cannot make liable the driver to cause
accident of the motor cycle. It would be a different question
if in fact the court may arrive at the conclusion that a
person driving the motor cycle on account of carrying more
persons, in fact lost the balance and thus was himself
negligent in causing an accident. Merely because some
more persons were carried on a motor cycle which did not
contribute nor was a factor in causing an accident then such
conduct alone cannot be considered as an act of
contributory negligence on the part of the driver of the
motor cycle.”
This Court in New India Assurance Co. Ltd. v. Avinash &
Ors. : 1988 ACJ 322 held thus:-
“5.
It is a settled law that when a person is injured
without any negligence on his part but as a result of the
negligence on the part of the other persons or as a result of
the combined negligence of two other persons, it is not a
case of contributory negligence. The term 'contributory
negligence' squarely and solely applies to the conduct of the
claimant alone.
If the claimant is guilty of an act or
omission which has materially contributed to the accident
and resulted in injury and damages, the matter comes
within the concept of contributory negligence.”
Approving the judgment reported at 1988 ACJ 322, the
interpretation
of
'contributory
negligence'
distinct
from
'negligence' has been clearly indicated by Hon'ble Supreme Court
in Sudhir Kumar Rana v. Surinder Singh : (2008) 12 SCC 436,
wherein, the claimant driving two wheeler met with an accident
and suffered injuries, the Tribunal found claimant not possessing
any driving licence and consequently contributed to the accident.
The said finding was affirmed by the High Court and in appeal
Hon'ble Supreme Court held that if a person drives vehicle
without a licence, he commits an offence and that by itself may
not lead to a finding of negligence as regards accident and that
there was no finding that the claimant was driving two wheeler
rashly and negligently.
The Hon'ble Supreme Court held that
7
only for not possessing the licence, the claimant would not be
guilty of contributory negligence. It was held thus:-
“6.
A contributory negligence may be defined as
negligence in not avoiding the consequences arising from
the negligence of some other person, when means and
opportunity are afforded to do so.
The question of
contributory negligence would arise only when both parties
are found to be negligent.
7.
The question is, negligence for what? If the
complainant must be guilty of an act or omission which
materially contributed to the accident and resulted in injury
and damage, the concept of contributory negligence would
apply. (See New India Assurance Co. Ltd. v. Avinash.)
8.
In T.O. Anthony v. Karvarnan it was held : (SCC pp.
750-51, paras 6-7)
“6. ''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 wrongdoers, it is said
that the person was injured on account of the
composite negligence of those wrongdoers. In such
a case, each wrongdoer is jointly and severally liable
to be 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 wrongdoer separately, nor is it
necessary for the Court to determine the extent of
liability of each wrongdoer 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 stand reduced in proportion
to his contributory negligence.
7. Therefore, when two vehicles are involved
in an accident, and one of the drivers claims
compensation from the other driver alleging
negligence, and the other driver denies negligence
or claims that the injured claimant himself was
negligent, then it becomes necessary to consider
whether the injured claimant was negligent and if
so, whether he was solely or partly responsible for
the accident and the extent of his responsibility,
that is, his contributory negligence.
Therefore
where the injured is himself partly liable, the
principles of 'composite negligence' will not apply
nor can there be an automatic inference that the
8
negligence was 50:50 as has been assumed in this
case. The Tribunal ought to have examined the
extent of contributory negligence of the appellant
and thereby avoided confusion between composite
negligence and contributory negligence. The High
Court has failed to correct the said error.”
9.
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 who was driving 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.”
It is thus clear from what has been held by the Hon'ble
Supreme Court that negligence ordinarily means breach of a
legal duty to take care, whereas contributory negligence means
the failure by a person to use reasonable care for the safety of
either of himself or his property so that he himself or his
property, becomes blameworthy in part as author of his own
wrong.
Provisions of Section 128 as noticed above are safety
measures for the driver and pillion rider and breach of such
safety measures which may amount to negligence on part of the
driver of the motor cycle, but cannot be termed as contributory
negligence, unless the immediate cause of the accident or
damage suffered by the driver or pillion rider would be on
account of violation of the said provision.
Recently this court in Ram Ratan v. Shobha & Ors. : S.B.
Civil Misc. Appeal No.665/2009 decided on 01.04.2013 held that
merely because a driver had consumed liquor and while going on
correct side of the road is struck by a offending vehicle, which is
9
being
driven
rashly
and
negligently,
merely
because
the
suffering driver had consumed liquor, it cannot ipso facto said
that he had contributed to the said accident.
So far as the judgment of this Court in Yuvraj (supra) is
concerned, in the said judgment also the Court observed as
under:-
“Learned counsel for the appellant has relied upon the case
of National Insurance Company & Ors. v/s. Kastori Devi &
Ors. (1988 ACJ 8), in order to buttress his contention that
merely because three riders are riding on a motor cycle, no
presumption can be drawn that they have contributed to
the occurrence of the accident. Need less to say that there
is no such presumption in law, but each case has to be
decided on the peculiar facts and circumstances of the
case.”
The Court further on facts upheld the finding of the
Tribunal, which held the driver of the motor cycle guilty of 25%
contributory
negligence,
therefore,
on
principles
the
said
judgment also does not support the case of the appellant.
In view of the above, I am of the considered opinion that
as the accident has been caused not on account of violation of
Section 128 of the Act, the deceased would not be guilty of
contributory negligence as the said violation has no casual
connection with the damage caused to the deceased or pillion
riders, which could be termed as contributory negligence on his
part. No other point was raised.
In view of what has been discussed above, the appeal has
no substance and is, therefore, dismissed. No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-
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