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2009 DIGILAW 723 (RAJ)

Nand Lal v. Shivbrahma Singh

2009-03-06

R.S.CHAUHAN

body2009
Hon'ble CHAUHAN, J.—The appellant has challenged the award dated 23-1-2006 passed by the Motor Accident Claims Tribunal Tonk [Additional District Judge (Fast Track) No.2 Tonk] (`the learned Tribunal' for short) whereby the learned Tribunal has awarded a compensation merely of Rs.1,69,600/- for the death of his wife Lad Kumari. Since the claimant is dissatisfied by the meager amount of compensation, he has filed the present appeal for enhancement of compensation. 2. In a nutshell, on 29-5-2003, appellant's wife Lad Kumari was going with her brother Devraj on a motorcycle towards village Kewadiya. While the motorcycle was going on the correct side of the road a jeep, bearing registration No.RJ-20/P-2004, being driven rashly and negligently came from the opposite direction and collided with the motorcycle. Consequently, Lad Kumari suffered grievous injuries. Subsequently, she expired during the course of her treatment. The claimant filed a claim petition before the learned Tribunal. In order to substantiate his case, he examined two witnesses and exhibited nine documents. The respondents examined a single witness, but did not exhibit any document. After going through the oral and documentary evidence, the learned Tribunal was of the view that while 80% negligence was attributable to the jeep-driver, 20% negligence was attributable to Dev Raj, who was driving the motorcycle. According to the learned Tribunal, Dev Raj is liable for 20% negligence as according to witnesses, three persons were riding on the motorcycle, instead of the permissible two persons. Therefore, the learned Tribunal calculated the amount of compensation as Rs.2,12,000/- and while deducting 20% amount therefrom, awarded a compensation of Rs.1,69,6000/- to the appellant. Hence, this appeal before this Court. 3. Mr. Sandeep Mathur, the learned counsel for the appellant, has contended that as far as Lad Kumari is concerned, even if three persons were riding on the motorcycle, even then, it is not a case of contributory negligence. In fact, it is a case of composite negligence. After all, she did not contribute to the occurrence of the accident. According to witnesses, it is Dev Raj, who was driving the motorcycle. Therefore, the question of contributory negligence would be relevant only in case of claim petition filed by Dev Raj and not by the appellant. Secondly, that the amount of income assessed by the learned Tribunal is on the lower side. Thus, the loss of dependency has not been calculated properly. 4. On the other hand, Mr. Therefore, the question of contributory negligence would be relevant only in case of claim petition filed by Dev Raj and not by the appellant. Secondly, that the amount of income assessed by the learned Tribunal is on the lower side. Thus, the loss of dependency has not been calculated properly. 4. On the other hand, Mr. Praveen Jain, the learned counsel for the respondent No.2, has contended that the learned Tribunal has erred in imposing the liability for payment of compensation on Yunus Mohammad, respondent No.2. According to the learned counsel the owner of the jeep is respondent No.1 Shiv Brahma Singh. According to insurance policy the address of Shiv Brahma Singh is shown as C/o Yunus Mohammad. Merely because the address of Shiv Brahma Singh is shown as C/o Yunus Mohammad, the learned Tribunal has concluded that insurance policy was taken by Yunus Mohammad. Therefore, he is the person who is insured. But the fact is that it is Shiv Brahma Singh, who is both the owner and the insured and not Yunus Mohammad. 5. Mr. Tripurari Sharma, the learned counsel for the insurance company, has contended that the learned Tribunal has awarded just and reasonable compensation. Therefore, he has supported the impugned award. 6. Heard learned counsel for the parties, examined the material available on record and perused the impugned award. 7. In A.P.S.R.T.C. & Anr. vs. K. Hemalatha & Ors. (MACD 2008 (SC) 302 = 2008(4) RLW 3453 (SC)) the Apex Court considered the question of composite negligence and contributory negligence and observed as under:- 10. '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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the 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 wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer 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 stands reduced in proportion to his contributory negligence. 8. Admittedly, in the present case the motorcycle was being driven by Dev Raj and not by Lad Kumari. Therefore, as far as Lad Kumari is concerned, she did not contribute to the occurrence of the accident. Hence, as far as she is concerned, it is a case of composite negligence and not of contributory negligence. Thus, the learned Tribunal has erred in treating this case to be of contributory negligence and denying 20% compensation amount to the appellant. 9. A perusal of the insurance policy also reveals that the owner and insurer is Shiv Brahma Singh and not Yunus Mohammad. Thus, merely because the address of Shiv Brahma Singh is shown as C/o Yunus Mohammad, it would not make Yunus Mohammad as the insured. Therefore, the learned Tribunal has fallaciously concluded that insured is Yunus Mohammad. Hence, it has erroneously imposed the liability to pay compensation upon him. 10. In these circumstances, the case is remanded back to the learned Tribunal to re-decide the case treating this case to be of composite negligence and not of contributory negligence. Furthermore, to decide about the liability of Yunus Mohammad in the case. The learned Tribunal is directed to decide this case within a period of three months from the date of receipt of certified copy of this judgment. The record of the case shall be sent forthwith to the learned Tribunal.