Punjab-Haryana High Court
Angrejo Devi And Others vs Jai Parkash And Others on 23 May, 2012
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
FAO No. 6550 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.6550 of 2010
Date of decision: 23.5.2012
Angrejo Devi and Others
...Appellants
Versus
Jai Parkash and others
...Respondents
CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr.Randeep Singh, Advocate,
for the appellants.
None for respondent Nos. 1,2,4 and 5
Mr. Tejinder Joshi, Advocate,
for respondent No.3
***
JITENDRA CHAUHAN, J.
The present appeal has been preferred by the appellants against the impugned Award dated 18.5.2010, passed by the Motor Accident Claims Tribunal, Karnal , (for short, 'the learned Tribunal').
The brief facts of the appeal are that on 26.07.2008, the deceased, Dharam Singh alongwith his son and son-in-law, was going on motor cycle bearing No. HR-33-A-7652, FAO No. 6550 of 2010 2 to brick klin situated in Village Beejana, District Karnal. When they reached near Munak Drain Bridge at about 12.45 p.m, Jai Parkash, respondent No.1 coming on motor cycle bearing registration No. HR-40-A-6178, in rash and negligent manner, without observing the traffic rules from the wrong side of the road, hit against the motor cycle of Dharam Singh as a result, the occupants of both the vehicles fell on the ground. Dharam Singh sustained grievous injuries, while others received minor injuries. Dharam Singh succumbed to his injuries on the spot. FIR No. 206 dated 26.7.2008 was registered against respondent No.1 at Police Station, Gharaunda.
As per the averments made in the claim petition No. 43 of 2008, under section 166 of the Motor Vehicles Act, 1988, filed by the claimants under section 166 of the Motor Vehicles Act, 1988, ( (hereinafter referred to as the MV Act), the deceased was 50 years old and was earning Rs. 15,000/- per month by cultivating vegetables, floriculture and dairy farming.
Upon notice, respondent Nos. 1 & 2 denied the rash and negligent driving of respondent No.1. It was the case of respondents No. 1 & 2 that the accident took place due to rash and negligent driving of deceased Dharam Singh, with two pillion riders, as he could not control the motor cycle and struck against the motor cycle of respondent No.1.
FAO No. 6550 of 2010 3
Respondent No.3, the insurance company denied the accident. It was stated that a false claim petition was filed by the claimants in collusion with respondent Nos. 1 & 2 in order to claim compensation from the insurance company. The vehicle No. HR-40-A-6178 was not involved in the accident and the driver was not having a valid and effective driving licence.
From the pleadings of the parties, the following issues were framed:-
1. Whether the accident in question causing death of Dharam Singh took place due to rash and negligent driving of motorcycle bearing registration No. HR-
40A-6178 by the respondent No.1? OPP.
2. Whether the claimants No. 1 was entitled to compensation, if so how much amount and from whom? OPP.
3. Whether the respondent No.1 was not holding a valid and effective driving licence at the time of accident.? OPR.
4. Relief.
Issue No.1 was decided by the Ld. Tribunal holding that the accident took place due to contributory negligence of the deceased Dharam Singh and respondent No.1 in the ratio of 50% each. While deciding Issue No.2, the Ld. Tribunal awarded FAO No. 6550 of 2010 4 Rs. 4,00,160/- as compensation and observed that respondent Nos. 1 to 3, being the driver, owner and the insurance company are jointly and severally liable to pay the 50% of the amount of compensation. While deciding Issue No.3, it was observed that Jai Parkash was having a valid driving licence at the time of accident and the issue was decided against the Insurance Company.
Aggrieved against the findings of Ld. Tribunal on Issue No.1, the appellants preferred this appeal.
Learned counsel for the appellants submitted that the Ld. Tribunal has wrongly decided Issue No. 1 after holding that the accident took place due to contributory negligence of deceased- Dharam Singh and Jai Parkash, respondent No.1. He further submitted that the Ld. Tribunal erroneously observed that the accident took place as deceased Dharam Singh could not control the motor cycle as he was carrying two pillion riders. He argued that riding of three persons on a motor cycle itself is not a ground to hold that there was negligence on the part of the deceased until such negligence is proved. He impugned the Award on the ground that the income assessed by the Ld. Tribunal is on the lower side and the compensation deserves to be enhanced.
None has put in appearance for respondents No. 1 and 2 to controvert the submissions made by the learned counsel for the appellants.
FAO No. 6550 of 2010 5
However, the learned counsel for the Insurance Company submitted that the Ld. Tribunal rightly held that both the deceased and respondent No. 1 were equally negligent in causing the accident to the ratio of 50:50.
I have heard the learned counsel for the parties and perused the record.
Undisputedly, on 26.7.2008, the accident of two motor cycles bearing Nos. HR-33-A-7652 and HR-40-A-6178 occurred near Munak Drain Bridge, Karnal. The motor cycle No. HR-33-A-7652 was driven by deceased Dharam Singh with two pillion, his son and son-in-law, whereas the motor cycle No. HR- 40-A-6178 was driven by Jai Parkash, respondent No.1. As per the case of the complainant, the respondent No. 1 was rash and negligent while driving the motor cycle No. HR-40-A-6178. The Ld. Tribunal while returning findings on Issue No.1, in paras 17 to 19 of the Award observed as under:-
"17. Exh.P5 is the copy of FIR bearing No. 206
dated 26.7.2008 got lodged by PW1 Ramesh Kumar against Jai Parkash in which the similar averments have been made as in the testimony in the Court. Ex.P2 is the copy of the site plan. As per the case of the complainant, he was coming from the side of Moonak and was going towards FAO No. 6550 of 2010 6 Gagsina and offending motorcycle was coming from the side of Gagsina and going towards Moonak and the accident has been shown to have been caused at point-A which shows that accident has been caused by coming to the wrong side of the vehicle of respondent No.1 and on the face of it, it is clearly visible that the accident has been caused due to rash and negligent driving of the offending vehicle.
18. In case of Managing Director, Tamil Nadu State Trans. Corpn. Limited vs. Abdul Salam and Others, 2004 A.C.J 1827, it has been held by Hon'ble Madras High Court that the collusion between a bus and motorcycle resulting in death of one of the pillion riders. Tribunal held that accident occurred due to rash and negligent driving of the bus. Defence that three persons were riding the motorcycle and it was unbalanced and accident occurred due to rash and negligent driving of the motorcycle. Motorcyclist was at fault for carrying two pillion riders not permitted by law and this fact by itself contribute to the negligence of rider as well as the pillion riders. FAO No. 6550 of 2010 7
Appellate Court reversed the finding and held the deceased guilty of contributory negligence to the extent of 50 per cent.
19. Similarly is the position in the case in hand. Admittedly, the motorcycle of the complainant was being driven by the deceased and complainant who appeared as PW1 and PW3 Roshan Lal were the pillion riders. No doubt accident took place at point-A as shown in the site plan Ex.P2 which shows that the accident took place due to the rash and negligent driving of the offending vehicle but the vehicle of the complainant being driven by the deceased cannot be absolved of the negligence on their part as there were two pillion riders except the driver. Hence, this court comes to the conclusion that the accident took place due to contributory negligence of the deceased Dharam Singh and respondent No. 1 in the ratio of 50% each. This issue is decided accordingly."
In the statement of PW3, Rohsan Lal, son of deceased- Dharam Singh, it is mentioned that three persons were riding on the motor cycle. His father (since deceased) was driving FAO No. 6550 of 2010 8 the motor cycle whereas, he and his brother-in-law were the pillion riders. During cross-examination, he denied that the accident occurred as his father could not control the vehicle because two persons were riding as the pillion. Section 128 of the MV Act prohibits the rider of a motor cycle from taking more than one pillion rider on it. For easy reference, Section 128 of the MV Act is reproduced below:-
"128. Safety measures for drivers and pillion riders--(1) No driver or 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."
A motor cycle is designed to ride two persons, if used by more than two persons, then the driver will have to share part of his seat, he will not be able to control the vehicle effectively. Moreover, the weight on account of third passenger will affect its stability. In the case in hand, Dharam Singh- deceased was driving the motor cycle, in violation of section 128 of the MV Act, with two passengers on the pillion seat. He was more than 50 years old and there is every likelihood of losing FAO No. 6550 of 2010 9 control over the vehicle, seeing other vehicle coming from opposite side. Accidents occur in a fraction of seconds and on slightest miscalculation of judgment. Although it is on the record that respondent No. 1 was rash and negligent in driving the motor cycle, yet it cannot be ignored that deceased-Dharam Singh was also driving the motor cycle in violation of the provisions of the MV Act. The Ld. Tribunal has rightly come to the conclusion that it was a case of contributory negligence of the deceased Dharam Singh and respondent No.1 in the ratio of 50% each.
In view of the above discussion, the findings recorded by the Ld. Tribunal on Issue Nos. 1, 2 and 3 are affirmed.
However, while computing the amount of compensation, the Ld. Tribunal has wrongly divided the total amount of compensation i.e. ` 4,00,160/- to the appellants and respondents No. 1 to 3 in the ratio of 50:50%. This amount includes the conventional amount of ` 20,000/-, which ought to have been paid to the claimants. In my opinion, the amount of ` 4,00,160/- is to be apportioned in the manner that the wife gets ` 20,000/- more being the conventional amounts like loss of consortium.
With this modification in the apportionment part FAO No. 6550 of 2010 10 of the impugned Award, this appeal is dismissed.
23.5.2012 ( JITENDRA CHAUHAN) MS JUDGE
Note : Whether to be referred to Reporter : Yes / No.