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2011 DIGILAW 2625 (RAJ)

Nand Ram v. Shekh Ali

2011-11-30

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—Claimants have filed this appeal dissatisfied with award dated 10.10.2007 of learned Motor Accident Claims Tribunal (Additional District Judge (Fast Track No.1), Bundi, in MAC Case No.201/2005, by which learned Tribunal ordered to pay compensation of Rs.1,50,000/- to claimants, against death claim of Rs.6,50,000/-, holding it to be a case of contributory negligence and on that basis deducted 1/3rd out of calculated compensation of Rs.2,25,000/-. 2. Learned counsel, in support of his case, cited a judgment of the Supreme Court in Sudhir Kumar Rana vs. Surinder Singh and Others – AIR 2008 SC 2405 and argued that question which arises in this case has been decided by the Supreme Court in Sudhir Kumar Rana, supra, wherein it has been held that doctrine of contributory negligence ordinarily is not applicable in the case of children with same force as in the case of adults. It was argued that the facts of present case do not make the child aged 16 years, who died in the accident, negligent. The deceased (child) was travelling in the jeep which was driven by respondent driver and that the driver has admitted that he halted the jeep on the bridge but the place where he halted the jeep was on edge of the bridge and that it was a dark night. The deceased when alighted from the jeep, straightway fell into the river and died due to drowning. Learned counsel argued that it was a dark night and the driver halted the jeep at the edge of the bridge. The driver being an adult person owed a greater liability to be careful in halting the jeep at a place which would give sufficient space to a passenger to get down especially when it was night. The driver having had a vision on the road with a head light could very much appreciate the ground situation and therefore the deceased could not be held liable. 3. Learned counsel for respondent opposed the appeal and submitted that deceased aged 16 years should not be not responsible for death because when he was getting down from the jeep, it was expected of him to take reasonable care. If the space on the ground was not available to get down, he ought not to have alighted and should have asked the driver to take the vehicle ahead to make a space for him to get down. 4. If the space on the ground was not available to get down, he ought not to have alighted and should have asked the driver to take the vehicle ahead to make a space for him to get down. 4. Having heard learned counsel for the parties, I find that the judgment of the Supreme Court in Sudhir Kumar Rana, supra, applies to the facts of the present case. This cannot be said to be a case of contributory negligence because driver had responsibility of not halting the jeep at the edge of the bridge where there was no space for the passenger to get down and that if he, believing that the driver must have taken such a reasonable care, alighted from the jeep and as a result whereof straightway fell into the river, it was fault on the part of the driver and not on the passenger. I am of the opinion that the learned Tribunal has not justified in deducting 1/3rd towards contributory negligence from the determined compensation. 5. In the result, the appeal is allowed. The appellants are thus held entitled to receive total compensation of Rs.2,25,000/-, as determined by the Tribunal, instead of Rs.1,50,000/- awarded by it. They are also held entitled to receive interest at the rate of 7.5% per annum on the difference compensation of Rs.75,000/- from the date of filing of the claim petition. 6. Compliance of the judgment be made within a period of three months from the date its certified copy is produced before respondent No.2 insurance company.