Madhya Pradesh High Court
Manjo Bee And Ors. vs Sajjad Khan And Ors. on 22 August, 2006
Author: N.K. Mody
Bench: N.K. Mody
JUDGMENT S.K. Kulshrestha, J.
1. The appellants, feeling aggrieved by the inadequacy of the amount awarded as compensation, have filed this appeal against the judgment dated 23.2.2004 of the Motor Accidents Claims Tribunal, Mandsaur in Claim Case No. 102 of 2003 in which while awarding the sum of Rs. 6,14,400 for loss of dependency the amount has been restricted to 50 per cent on the ground of the contributory negligence of the deceased and funeral expenses and loss of consortium has been added. An application under Section 166 was filed on the averments that on 19.5.2003 at about 9.30 p.m. deceased Mehboob Khan, husband of appellant No. 1 Manjo Bee, father of appellant Nos. 2, 3 and 4 and the son of appellant No. 5, was proceeding on his motor cycle along with his niece Farjana and Mehraj on the pillion to drop them at his in-laws place, the respondent came in a truck bearing registration No. CIK 0052 at an alarming speed and negligently with the result there was collision with the motor cycle resulting in death of Mehboob Khan and injury to Farjana Bee and Mehraj who were on motor cycle as pillion riders. It was contended that Mehboob Khan was employed as mechanic and was getting salary of Rs. 4,800 per month and he was earning about Rs. 2,500 from sundry job of machinery repair and thus his total income was Rs. 7,000 per month.
2. The respondent Nos. 1 and 2 in their written statement pleaded that accident occurred on account of negligence of the motorcyclist. The motor cycle was on the wrong side and on seeing the vehicle approaching from the opposite side, it lost its balance and the rider fell down. Insurance company filed reply and stated that since the driver of the truck did not possess any licence, it was relieved of the obligation under the policy in view of the said breach. It also took the plea that it was on account of the negligence of Mehboob Khan that the accident occurred. After conclusion of the trial, the Claims Tribunal awarded the compensation as hereinabove stated.
3. Learned Counsel for the appellants has made twofold contention. His first contention is that the deduction for contributory negligence is erroneous as there was no evidence to prove that the rider of the motor cycle was negligent. His contention is that merely carrying two pillion riders does not per se denote negligence. Similarly from non-production of the driving licence, negligence could not have been inferred. Second contention of the learned Counsel is that monthly income has not been properly assessed and the overtime work which the deceased was doing has not been taken into account. Learned Counsel has further disputed the correctness of the multiplier applied by the Tribunal.
4. Learned Counsel for the insurance company has submitted that since licence was not produced to show that the motorcyclist was authorised to drive a motor cycle and since prima facie there were three persons on the motor cycle, inference of contributory negligence drawn by the Tribunal does not call for any interference.
5. We have heard the learned Counsel for the parties and perused the record.
6. The first question that arises for consideration is as to whether in the absence of the licence of the motorcyclist and there being two pillion riders on the motor cycle, can it be inferred that the motorcyclist was negligent. Learned Counsel has invited our attention to M.A. No. 550 of 1995 in which a Division Bench of this Court has made the following observations:
It is true that he carried two passengers on his motor cycle as pillion rider while according to the Motor Vehicles Rules only one person could travel as pillion rider. Thus, the deceased committed breach of the rule of the Motor Vehicles Rules. For this he could be convicted under the relevant provisions of the Motor Vehicles Act but on the basis of it, it cannot be held that he was driving the motor cycle negligently.
7. Learned Counsel has also referred to Mohinder Singh Sohal v. Ramesh Kumar 1981 ACJ 326 (P & H) and Leela Bai v. Munna Lal , to the effect that contributory negligence cannot be assumed merely because there were two pillion riders.
8. Section 128 of the Motor Vehicles Act, 1988 provides as follows:
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-section (1), the Central Government may, prescribe other safety measures for the drivers of two-wheeled motor cycles and pillion riders thereon.
9. Carrying more passengers than one on motor cycle is violation of the above provision but by carrying more persons one cannot be said to be negligent as a person having more than one pillion rider can also be more careful than a person going alone on a motor cycle. The learned Counsel has pointed out that even the driver of the offending vehicle was not examined to prove that motorcyclist was negligent. In the spot map drawn by the police, Exh. P4, the motorcyclist has been shown on left side of the road which belies any suggestion of his being on the wrong side of the road.
10. With regard to the driving licence learned Counsel has referred to New India Assurance Co. Ltd. v. Debajani Sahu , in which Orissa High Court has observed that no presumption can be drawn merely on account of the absence of licence of the scooterist that he was negligent. It has been observed that a person holding a licence can be negligent in a given case while a person without a licence can be careful and cautious. We are, therefore, of the view that from the absence of licence also inference cannot be drawn that the motorcyclist was negligent. For drawing such an inference, there should be evidence to that effect as held in Paramjit Kaur v. Murarilal Shankya . Such burden can be discharged by examining the driver of the vehicle.
11. In the present case, driver of the vehicle or any other person has not been examined to prove that motorcyclist was negligent or even to disprove that the driver of the offending vehicle was not negligent. Under these circumstances, in absence of proof that the motorcyclist was negligent, merely on account of raising a plea in the written statement, it cannot be inferred that the motorcyclist was negligent nor can it be inferred from the absence of licence or from the fact that there were 3 persons on the motor cycle that the motorcyclist was negligent. Under these circumstances, we find that the presumption drawn by the Tribunal is erroneous and deduction of 50 per cent made on that account is illegal and deserves to be set aside.
12. Coming to the question of quantum of compensation the Tribunal has found on the basis of the evidence adduced by the appellants that the deceased was getting a salary of Rs. 4,800 per month. The Claims Tribunal has disbelieved the evidence of the appellant wife that after his working hours he was engaged in any work from which also he had income and rightly so. We agree with the reason advanced by the Tribunal that after working for such a long period till 8 o'clock in the evening, the deceased could not have engaged himself in any other activity of arduous nature. Under these circumstances, we uphold the monthly income of Rs. 4,800 as assessed by the Tribunal. However, the Tribunal has applied a deduction of 1/3rd. The learned Counsel has submitted that there were five dependants and including the deceased in a case of six persons the deduction is on the higher side. Reference has been made to the decision in Mangilal v. Sheikh Rafiq , in which it has been held that when a person is having a large family only 1/4th for self expenditure may be deducted. We are also of the view that in the case of 6 persons deceased could not have been spending 1/3rd on himself. At the most he must have been spending on himself about 1/4th. We, therefore, propose to deduct 1/4th and assess the monthly dependency at Rs. 3,600. The annual loss of dependency is, thus, arrived at Rs. 43,200. Deceased was admittedly 30 years old and, therefore, multiplier of 16 is on the lower side. Multiplier of 17 would be appropriate in his case. When this amount is multiplied by 17, the total comes to Rs. 7,34,400. The Claims Tribunal has awarded Rs. 2,000 for funeral expenses and Rs. 10,800 towards loss of consortium and love and affection. The total thus comes to Rs. 7,47,200. We, accordingly, enhance the amount by a sum of Rs. 4,27,200.
13. In the result, this appeal is partly allowed. The compensation awarded by the Tribunal is enhanced to Rs. 7,47,200. The enhanced amount of Rs. 4,27,200 shall carry interest at the rate of 6 per cent per annum from the date of the application. Parties shall bear their own cost of this appeal.