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2012 DIGILAW 634 (RAJ)

Jameel v. Shri Bhanwar Singh Rathore

2012-03-13

MAHESH BHAGWATI

body2012
BHAGWATI, J.—Challenge in this appeal is to the judgment and award dated 20th December, 2002, whereby the Motor Accident Claims Tribunal, Jaipur (here-in-after to be referred as the 'Tribunal'), decreed an amount of Rs. 1,28,000 in favour of the appellant-claimant and against the respondents, but on account of contributory negligence of the claimant held him entitled to get only 50% thereof. Aggrieved and dissatisfied with the amount of award, the appellant has beseeched to enhance the same. 2. The background facts of the case, in nutshell, are that on 24th February, 1994 at about 4:30 pm, the appellant-claimant was going on foot from Gopalpura to Gurjar ki Thadi situated at Jaipur holding the bicycle in his hand. It is alleged that in the meantime, one Truck bearing Registration No. RJ-14-G-1875 suddenly emerged at a fast speed and hit him on the wrong side, as a result of which he sustained grievous injuries on his person. 3. Heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned award. 4. Learned counsel for the appellant canvassed that the injured Jameel was going on foot on Kachcha road holding bicycle in his hand, but placing reliance on the site plan, the Tribunal observed that he was going on foot in the midst of the road, hence, irrespective of the fact that the driver of the truck caused accident, the injured claimant was also found to be contributory negligent and thus, he was entitled to get only 50% of the amount of compensation under the award. Learned counsel assailed this finding of the Tribunal and contended that the injured was not at all going in the midst of the road, rather he was going on foot on kachcha road and it was a sheer negligence on the part of the driver of the truck alone. Hence, the claimant-appellant must be held entitled to get the entire amount of compensation of Rs. 1,28,000/- under the award. 5. E converso, the learned counsel appearing on behalf of the respondent no.3 New India Insurance Co. Ltd. vehemently opposed the submissions made by the learned counsel for the appellant and contended that the Tribunal has rightly observed that the injured was going in the midst of the road and it was the contributory negligence of the bicyclist that he aided the cause of the accident. Ltd. vehemently opposed the submissions made by the learned counsel for the appellant and contended that the Tribunal has rightly observed that the injured was going in the midst of the road and it was the contributory negligence of the bicyclist that he aided the cause of the accident. Albeit, the driver of the truck was duty bound to take all care and avoid the accident, but even if we consider the negligence of the driver of the truck, then also there was contributory negligence of the bicyclist also. Hence, he must be paid only half of the amount of compensation and the Tribunal has rightly directed only half of the amount of compensation to be paid to the injured. The impugned award is just and proper, which does not justify any inference. 6. Having reflected over the submissions made at the bar and carefully scanned the impugned award, it can safely be observed that the injured Jameel was not at all negligent in going on foot towards Gurjar Ki Thadi. Even if it is presumed that the injured Jameel was going in the midst of the road, it was the bounden duty of the driver of the truck to take all care to save the bicyclist in the crowded city and avoid the accident. It is relevant to record at this stage that the provisions of Motor Vehicles Act do not envisage any factor of contributory negligence or composite negligence etc. Section 165 of Motor Vehicles Act simply contemplates the use of vehicle, which is entailed in accident. If any person sustain any bodily injury or any person dies in an accident out of the use of a motor vehicle, then the owner of that motor vehicle is liable to pay the compensation under the provisions of Motor Vehicles Act. There is nothing like the term “contributory negligence” in the said Act. In fact, it is a term coined by the courts only, but it is not the requirement of the legislature, hence, the courts are not required to legislate the laws. The courts are required to interpret the laws as they are. 7. It is a settled law that where there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to undertake any exercise to read something into the provisions which the legislature in its wisdom consciously omitted. The courts are required to interpret the laws as they are. 7. It is a settled law that where there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to undertake any exercise to read something into the provisions which the legislature in its wisdom consciously omitted. Such an exercise if undertaken by the courts may amount to amending or altering the statutory provisions. 8. In the case of Union of India vs. Devki Nandan Aggarwal reported in 1992 SCC (L&S) 248, the Apex Court in unequivocal terms held as under:- “In a plethora of cases, it has been stated that where the language is clear, the intention of the legislature is to be gathered from the language used. It is not the duty of the court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot re-write the Legislation for the reason that it had no power to legislate. The court cannot, on an assumption that there is a defect or an omission in the words used by the Legislature, correct or make up assumed deficiency, when the words are clear and unambiguous. Courts have to decide what the law is and not what it should be. The courts adopt a construction which will carry out the obvious intention of the Legislature but cannot set at naught Legislative judgment because such course would be subversive of constitutional harmony.” 9. In the light of the above discussion, I am of the firm view that the contributory negligence cannot be fastened upon the person, who was going on foot on the road in a crowded city. There was no occasion for the driver of the heavy truck to drive the same at such a high speed in the city, which could kill a person going on foot or a pedestrian. The finding of the Tribunal in this regard is found to be totally perverse and contrary to law. Hence, the appellant-claimant is held entitled to get 100% amount of compensation under the award. 10. No other argument has been advanced by any of the parties in the instant appeal. 11. For the reasons stated above, the appeal succeeds. The appellant is held entitled to claim the entire amount of compensation i.e. Rs. 1,28,000/- instead of Rs. Hence, the appellant-claimant is held entitled to get 100% amount of compensation under the award. 10. No other argument has been advanced by any of the parties in the instant appeal. 11. For the reasons stated above, the appeal succeeds. The appellant is held entitled to claim the entire amount of compensation i.e. Rs. 1,28,000/- instead of Rs. 64,000/- awarded by the Tribunal. The respondent no.3 New India Insurance Co. Ltd. is directed to deposit rest of the amount under the award with the Tribunal within a period of four weeks from today. The claimants are also held entitled to claim interest @ 6% per annum from the date of filing the claim petition till the amount is actually realized. Other terms of the award shall remain unchanged. 12. The impugned award stands modified as indicated here-in-above. 13. The appeal stands disposed of, accordingly.