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2008 DIGILAW 332 (JK)

National Insurance Co. Ltd. v. Zainab

2008-09-03

MANSOOR AHMAD MIR

body2008
1. The core question involved in this appeal is that whether the accident was outcome of contributory negligence or outcome of negligence of driver-respondent No.3. The adequacy of compensation is also questioned. 2. Claimants filed a claim petition claiming compensation on the ground that Mohammad Shafi Chachi, 36 years old was traveling as a labourer in a goods vehicle on 13th of May, 2004 who sustained head injury and succumbed to the injuries due to the rash and negligent driving of the respondent No.3. Deceased was earning Rs. 15000/- per month. Claimants claimed compensation to the tune of Rs.20 lacs. Driver and owner were set exparte. 3. Insurer-appellant contested the claim petition and following issues came to be framed. "1. Whether the deceased Mohammad Shaft Chachi aged 36 years died in an accident involving vehicle No. DLIGB 4182 when the said vehicle met with an accident on 30.5.2004 on Jammu Srinagar National Highway near Jawahar Tunnel, the deceased was traveling in the said vehicle as labourer for transporting the sheep from Delhi to Srinagar? OPP 2. In proof of issue No. l whether the petitioners here are legal representatives of the deceased and if so whether they are entitled to any compensation under the provisions of M.V. Act if so how much compensation is to be given to them and by whom? OPP 3. Whether Insurance Company is not bound to compensate the owner and driver if so how and why? OPR3 4. Relief." 4. All the witnesses examined by the claimants have deposed that deceased was traveling in the offending vehicle as labourer and driver has driven the vehicle rashly and negligently at Jammu Srinagar National Highway near Jawahar Tunnel. The deceased sustained injuries and succumbed to the injuries. Thus, issue No. 1 came to be rightly decided by the tribunal. 5. Insurer-appellant examined only one witness, namely, Imtiyaz Ahmad Shah, who has nowhere stated that owner has committed any breach. It is worthwhile to mention herein that learned counsel for the appellant has also not argued that insurer has committed any breach. But he contested the claim petition on contributory negligence and adequacy of compensation. Thus, appellant -insurer has failed to prove issue No.3. Accordingly, the issue No.3 is decided in favour of the claimants against the appellant-insurer. 6. It is worthwhile to mention herein that learned counsel for the appellant has also not argued that insurer has committed any breach. But he contested the claim petition on contributory negligence and adequacy of compensation. Thus, appellant -insurer has failed to prove issue No.3. Accordingly, the issue No.3 is decided in favour of the claimants against the appellant-insurer. 6. Learned counsel for the appellant, however, argued that deceased labourer was sitting on tool box of the truck, thus he too was negligent and thus accident was outcome of contributory negligence. 7. The question is whether it is negligence of the driver of the offending vehicle or of the deceased labourer? It is the driver who has to drive the vehicle, it is he who has to take all precautions. It was duty of the driver not to allow the labourer to sit on tool box. It cannot be said that it was mistake or negligence of labourer. He was not expert, expert is driver. If a passenger sits on roof of the bus, it is the duty of the driver not to allow the passengers to sit on roof and if the accident occurs that would be negligence of the driver. 8. The party who presses into service contributory negligence, has to plead and prove the same. There is not an iota of evidence led by the insurer to that effect. Punjab and Haryana High Court has also held in case titled Vijay Singh v. Haryana Roadways & anr, reported as AIR 1990 Punjab & Haryana 334, that traveling on roof of bus does not per-se constitute contributory negligence. It is apt to reproduce paras 6 and 7 of the said judgment herein: "6. There is a duty of care that rests upon the driver of a bus towards all persons traveling on it which cover not only those in it, but extends also to passengers traveling on the roof of it, even though it may not have been permissible in law for them to be there. Breach of any rules of instruction prohibiting travel on the roof of a bus cannot be construed as a licence to the bus-driver to drive the bus without due regard to the care and safety of all passengers including those on the roof. Rather, when there are passengers on the roof, extra-caution is imperative. Breach of any rules of instruction prohibiting travel on the roof of a bus cannot be construed as a licence to the bus-driver to drive the bus without due regard to the care and safety of all passengers including those on the roof. Rather, when there are passengers on the roof, extra-caution is imperative. These observations are, of course, not to be taken as approving or permitting travel on the roof of a bus. It is clearly incumbent upon the authorities concerned to ensure that travel on the roof of a bus is not only banned, but does not in fact take place as a risk of serious injury, is so obviously inherent in such travel. 7. See in this light, no contributory negligence can be fastened upon a passenger traveling on the roof of a bus, who sustains injuries on account of the negligent driving of the bus-driver, merely on the ground that he had been traveling on the roof of the bus and not inside it. In this view of the matter, the finding of contributory negligence recorded against the claimant cannot be sustained and is thus set aside." 9. The same view has again taken by the High Court of Haryana and Punjab in case titled Manjit Kaur & Ors, Vs. Pepsu Road Trans. Corpn. And others, reported as 1990 ACJ 471. 10. This court has also taken the same view in case titled Deeraj Singh Vs. Mst, Hajra & Ors, reported as 2005(I) SLJ 368. 11. Thus argument of learned counsel for the appellant is devoid of any force and it is hereby held that accident was outcome of rashness and negligence of the driver. 12. The tribunal has taken income of the deceased as Rs. 4500/- while treating him as labourer. Admittedly he was a labourer. He would not have been earning less than Rs. 4500/- per month. Tribunal has rightly deducted Rs. 1500/- for his personal expenses and held that claimants have lost source of dependency to the tune of Rs. 3000/- per month. The age of the deceased as pleaded and proved is 36 years. The multiplier 16 came to be rightly applied while keeping in view the schedule appended to the Motor Vehicles Act. Rs. 5000/- as loss of consortium, Rs. 2500/- for loss of estate and Rs. 2500/- for funeral expenses came to be rightly awarded. 3000/- per month. The age of the deceased as pleaded and proved is 36 years. The multiplier 16 came to be rightly applied while keeping in view the schedule appended to the Motor Vehicles Act. Rs. 5000/- as loss of consortium, Rs. 2500/- for loss of estate and Rs. 2500/- for funeral expenses came to be rightly awarded. The rate of interest also came to be rightly awarded. 13. In the given circumstances, the finding returned on issues 2 and 3 are upheld. In view of the above discussion, the appeal is dismissed and impugned award/judgment is upheld. Registry to send down the record along with a copy of this judgment.