Madras High Court
Managing Director, Tamil Nadu State ... vs Abdul Salam, Jameela, Laila, Sainabha, ... on 29 January, 2003
Equivalent citations: 2004ACJ1827, 2003 A I H C 3168, (2003) 1 MAD LJ 489, (2003) 2 TAC 103, (2004) 3 ACJ 1827, (2003) 2 MAD LW 75, (2003) 10 INDLD 176
Author: D. Murugesan
Bench: D. Murugesan
JUDGMENT S. Jagadeesan, J.
1. The appeal is against the Award of the Motor Accident Claims Tribunal, Coimbatore dated 14.9.2001 passed in M.A.C.T.O.P.575 of 1996. The respondents 1 to 6 are the legal representatives of one Jalal who lost his life in a road accident on 19.11.1995. They filed the said claim petition, claiming a compensation of Rs.6,50,000/-. Under the impugned Award, the Tribunal awarded a sum of Rs.2,20,000/- which is now being challenged in this appeal.
2. The claimants' case is that on 19.1.1995 at about 11.00 a.m when the deceased was travelling in a motor cycle as one of the pillion riders, the bus belonging to the appellant Corporation bearing Registration No. TN-37-N-0616 came in the opposite direction, driven by the driver in a rash and negligent manner and dashed against the motor cycle. Due to the impact, the deceased was thrown away and died on the spot.
3. The claim petition was filed on the basis that the deceased was earning a sum of Rs.3,000/- p.m and now the legal representatives of the deceased lost his contribution to the family and as such they are entitled for the compensation.
4. The appellant herein contested the claim of the respondents 1 to 6 stating that the deceased was travelling in the motor cycle as a pillion rider along with another deceased Mr. Usman. Both the deceased were travelling in the motor cycle along with another one. Hence three persons were travelling in the motor cycle and either without noticing the bus which was coming in the opposite direction or unmindful of the available distance to cross through, the rider of the motor cycle over took the lorry and consequently the accident occurred only due to the rash and negligent driving of the motor cycle. Further when the three persons were travelling in the motor cycle, the rider also could not have complete control of the vehicle and as such the accident was not due to the rash and negligent driving of the bus by the driver. Even assuming that the bus was driven in a rash and negligent manner, there will be a contributory negligence on the part of the driver of the motor cycle in which the deceased was travelling as a pillion rider and there should be proportionate contributory negligence on the part of the two wheeler.
5. On behalf of the appellant Corporation, the driver of the bus was examined as R.W.1. On behalf of the claimants, the father of the deceased was examined as P.W.1. On consideration of the evidence let in by both the parties, the Tribunal determined the age of the deceased as 23.
6. Coming to the income of the deceased, the Tribunal accepted the evidence of the father who deposed that the deceased was employed in a tea-shop and he was earning a monthly income of Rs.3,000/-. Even though there is no documentary evidence or independent witness to speak about the income of the deceased, the Tribunal found that the deceased could have earned an income of Rs.2,000/- p.m and arrived the annual income at Rs.24,000/-. After deducting 1/3rd towards his personal expenses, the Tribunal determined the contribution of the deceased to the family at Rs.16,000/-. Considering the age of the father and mother which are 52 and 48 respectively, adopting the multiplier of 13, the Tribunal determined the total compensation of Rs.2,08,000/-. The Tribunal further awarded a sum of Rs.2,000/- for funeral expenses and Rs.5,000/- towards loss of love and affection to claimants 1 and 2. The Tribunal totally awarded the compensation of Rs.2,20,000/-. As against the same the present appeal has been filed. The Tribunal also found that the accident was due to the rash and negligent driving of the bus.
7. The only contention of the learned counsel for the appellant is that the deceased was travelling as one of the pillion riders in the motor cycle. It is an admitted case that three persons travelled in the motor cycle. When the motor cycle is meant for two persons viz., the rider and a pillion rider, the travelling of three persons is not only illegal but also unauthorised. When three persons are travelling in a motor cycle, sitting in a cramped manner, the rider of the motor cycle may not be in a position to have total control of the same. When three persons travelled in the motor cycle and the accident occurred due to an illegal act, none of the victims or their legal representatives are entitled for any compensation. Hence the Tribunal is not correct in awarding the compensation under the Award. Even otherwise, the Tribunal ought to have reduced the compensation by making a deduction towards contributory negligence by the rider as well as the pillion riders of the motor cycle, as they travelled in the motor cycle contrary to the provisions of the Act as well as the conditions of their own insurance policy.
8. The learned counsel for the respondents vehemently contended that the deceased being a pillion rider, no negligence can be attributed to him. There is absolutely no evidence with regard to any negligence on the part of the rider of the motor cycle. In such circumstance, there cannot be any contributory negligence, as contended by the learned counsel for the appellant. Three persons travelling in a motor cycle is a common affair as on today and hence that also cannot be a ground to refuse the compensation.
9. We carefully considered the above contentions of the respective counsels. We find some force in the contention of the learned counsel for the appellant. There is no gain say in saying that now-a-days it has become the normal course that three persons are travelling in a motor cycle.
10. We are concerned as to whether such action of the individuals is permissible under law. The motor cycle and any other two wheelers are meant only for two persons, the rider and a pillion rider. If more than two persons are travelling in a motor cycle or any other two wheeler, undoubtedly such action of the individual would become illegal and unauthorised. It is an awful sight when we come across three persons travelling in a motor cycle. They are sitting in such a cramped manner that the rider of the motor cycle almost sitting on the petrol tank or at the front edge of the seat. When he was sitting in such a position, naturally because of the restricted movement of his legs, he cannot have the complete control over the brake. The movements of his hands also so restricted. When that be so, this court is of the opinion that definitely the rider of the two wheeler cannot have full control over the vehicle.
11. Apart from that, when three persons are travelling in a motor cycle, two as pillion riders, any unusual movement of the pillion riders would make the rider of the motor cycle to loose his control over the vehicle. Even though such travelling of three persons in a motor cycle is contrary to the statute, still the enforcement wing do not care to take note of the same and failed to take action against their illegal action. Virtually because of the failure on the part of the enforcement wing, such travelling of three persons in the two wheelers has become a regular sight. Even though the highway patroling is available but it is a rare sight to see a highway patrolling vehicle. The travelling of three persons has become rampant in the mofussils and in the City; especially among the youngsters like the college students. When that be the case, the enforcing authority is expected to enforce the statute with some strictness to avoid any untoward incident. There is no purpose in conducting the Road Safety Week without infusing the road sense in compliance of the Rules and Regulations of the statute in the minds of those who are using the vehicles.
12. When three persons travelled in a motor cycle which is meant for two persons, this court is of the view, the conduct of the persons who travelled in such a manner are liable for contributory negligence; especially when their action is contrary to the statute.
13. Hence we hold that the deceased was liable for 50% of the contributory negligence and consequently 50% of the compensation is deducted towards contributory negligence and the claimants/respondents 1 to 6 are entitled for the compensation of Rs.1,10,000/- together with interest at 9% p.a. They are entitled for their respective share in the same ratio as apportioned by the Tribunal. The appeal is partly allowed with the above modification. Consequently C.M.P.165 of 2003 is closed.
14. While we lay down the law in respect of the contributory negligence by the unauthorised travelling of three persons in a motor cycle, we make it clear that it will not be applicable to a case where a family consisting of husband, wife and children are travelling. Even in such cases, if more than one child aged above 10 to 12 years is being taken, then we make it clear that the principle of contributory negligence will be applicable in respect of any accident.