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2016 DIGILAW 1282 (ORI)

Bijaylaxmi Moharana v. Sanjukta Satpathy

2016-12-23

K.R.MOHAPATRA

body2016
JUDGMENT : K.R. Mohapatra, J. This Appeal has been filed by the claimants assailing the award dated 12.03.2012 passed by the learned 2nd Additional District Judge-cum-Motor Accident Claim Tribunal, Cuttack in MAC Case No. 444 of 2009 awarding compensation of Rs.7,59,500/- together with interest @ of 6% with effect from date of filing of the claim petition and also a cost of Rs.1,000/-, payable by the Insurance Company, namely, National Insurance Company Limited (respondent No. 2 herein). 2. Case of the Claimant before the learned Tribunal was that on 26.02.2009 when one Somanath Moharana (the deceased) along with his wife and minor son were returning from Puri to Jatni in a Hero Honda Motorcycle, Tipper bearing registration No.OR-02-C-6282 being driven in rash and negligent manner dashed against the motorcycle. Due to the accident, the deceased along with the pillion riders fell down and sustained severe injuries. The deceased and his wife were immediately shifted to District Headquarters Hospital, Puri. As the condition of the deceased deteriorated, he was shifted to Capital Hospital, Bhubaneswar, where he succumbed to the injuries. On the basis of the report, the Police took up investigation and submitted charge sheet under Section 279, 337, 338, 304-A of IPC. The Claim Petition further revealed that at the time of death, the deceased was 37 years old having sound physique. He was doing business in Jewellery and gold ornaments at Jatni market in the name and style “Somanath Jewellery”. He had a monthly income of Rs.20,000/- and was contributing more than Rs.15,000/- to his family. Due to the untimely death, the family members lost their sole earning member. Hence, the claimants claimed a sum of Rs.25,00,000/- towards compensation together with interest and cost. 3. The owner of the offending vehicle (Tipper) did not contest before the learned Tribunal. However, the Insurance Company resisted the claim by filing written statement denying the contentions made in the Claim Petition, the Insurance Company contended that the offending vehicle had no contribution to the accidental injury and death of the deceased. The accident took place due to rash and negligent driving of the deceased motorcyclist. The Insurance Company had also resisted the claim on other grounds. Hence, it denied its liability to pay any compensation. 4. The accident took place due to rash and negligent driving of the deceased motorcyclist. The Insurance Company had also resisted the claim on other grounds. Hence, it denied its liability to pay any compensation. 4. Learned Tribunal on assessment of pleadings and materials available on record, came to a conclusion that the deceased was driving the motorcycle carrying two pillion riders, namely, his wife-appellant No.1 and minor son-appellant No.2. The appellant No.2 was aged about six years on the date of accident. Thus, there was violation of provisions of Section 128 of the Motor Vehicles Act, 1988 (for short, ‘the Act’). As such, learned Tribunal held that the deceased had some contribution to the accident and assessed the same at 25%. Accordingly, assessing the liability of the Insurance Company at 75%, learned Tribunal held the Insurance Company liable to pay a sum of Rs.7,50,000/- towards compensation and Rs.9,500/- towards funeral expenses. Accordingly, learned Tribunal directed the Insurance Company to pay a compensation of Rs.7,59,500/- along with interest @ 6% per annum payable by the Insurance Company. 5. Mr. A.K. Choudhury, learned Counsel for the Claimants-Appellants, assailing the award contended that the burden lies on the owner of the vehicle or the person who takes the plea of contributory negligence to prove that due to the contributory negligence of the victim, the accident took place. Violation of provisions of Section 128 of the Act cannot ipso facto prove the allegation of contributory negligence. In the instant case, the Insurance Company has to plead and prove by leading cogent evidence that the motorcyclist was guilty of contributory negligence. He further submitted that the assessment of compensation is also not in consonance with the loss sustained. Learned Tribunal committed error in deducting 1/3rd towards personal and living expenses of the deceased from out of his monthly income. Learned Tribunal has also not awarded any amount towards loss of estate, love and affection as well as loss of consortium. Hence, he prayed for enhancement of the compensation and saddling the liability for payment of compensation on the Insurance Company. 6. Mr. Suarth Roy, learned counsel for the Insurance Company, per contra, supported the impugned award and submitted that the deceased had violated the provisions of Section 128 of the Act in carrying two pillion riders in his motorcycle. That might have been the cause of the accident. 6. Mr. Suarth Roy, learned counsel for the Insurance Company, per contra, supported the impugned award and submitted that the deceased had violated the provisions of Section 128 of the Act in carrying two pillion riders in his motorcycle. That might have been the cause of the accident. Further, learned Tribunal, has rightly deducted 1/3rd towards personal expenses of the deceased from his income. As such, no error, both on fact and law, can be found with the impugned award and prayed for dismissal of the appeal. 7. Taking into consideration the rival contentions of the parties, the pivotal issue that arises for consideration is that whether violation of provisions of Section 128 of the Act by the deceased motorcyclist can be held to be his contributory negligence. Section 128 (1) of the Act provides that no driver of a two wheeled motorcycle shall carry more than one person as pillion rider. In the instant case, the wife and minor son of the deceased were admittedly the pillion riders in the ill-fated motorcycle. The statutory provision of Section 128 of the Act does not spell out anything from which it can be inferred that violation of said provision would amount to contributory negligence. The party (Insurance Company) who pleads that there was contributory negligence of the deceased to the accident, has to prove the same by adducing cogent and convincing evidence. In the instant case, there is no pleading in the written statement of the Insurance company (O.P. No.2 before the learned Tribunal) to the effect that the accident took place due to violation of the provisions of Section 128 (1) of the Act on the part of the deceased or the claimants. On the other hand, police papers in PS Case No.37 dated 27.02.2009 relating to the accident in question reveal that the charge sheet was submitted under Sections 279, 337, 338 and 304-A of IPC only against the driver of the offending vehicle (Tipper). The Insurance Company neither examined any witness nor produced any document in support of their plea. However, while cross-examining PW-1 (appellant No.1 herein), learned counsel for the Insurance Company suggested that the motorcycle dashed against a standing Tipper, which was never the plea of the Insurance Company in its written statement. He tried to develop such a plea at the stage of trial, which is not permissible in law. However, while cross-examining PW-1 (appellant No.1 herein), learned counsel for the Insurance Company suggested that the motorcycle dashed against a standing Tipper, which was never the plea of the Insurance Company in its written statement. He tried to develop such a plea at the stage of trial, which is not permissible in law. Learned Tribunal also rightly discarded the same. Further, discussing the evidence on record, learned Tribunal came to a conclusion that there was positive finding that the driver of the offending vehicle while driving the same in rash and negligent manner dashed against the ill-fated motorcycle. However, learned Tribunal held that the deceased had contributory negligence to the accident as there was violation of provisions of Section 128 of the Act. Mr. Choudhury, learned counsel for the claimants in support of his case relied upon a decision of Madhya Pradesh High Court in the case of Devisingh Vs. Vikramsingh & Ors., reported in AIR 2008 MP 18 (F.B.), in which it is held that violation of provision of Section 128 of the MV Act per se does not amount to contributory negligence on the part of the pillion riders. On the other hand, Mr. Roy, learned counsel for the Insurance Company relied upon a decision of the Calcutta High Court in the case of Menoka Mondal and others Vs. Oriental Insurance Co. Ltd. and others, reported in 2015 (3) T.A.C. 621 (Cal.), in which it is held as follows:- “8. Since the motor cyclist had violated the provisions contained in Section 128 of the statute, the learned Tribunal had rightly dismissed the claim petition. It is to be borne in mind that if we accede to the prayer of the appellants, we would be ignoring not only the provisions contained in the statute but would also amount to approving an illegal act committed by the motor cyclist. Therefore, there is no merit in the appeal. Hence, the appeal is dismissed. The Application, being CAN 282 OF 2015, is disposed of without any order as to costs.” Both the decisions relied upon by learned counsel for the parties are having persuasive value. In the decision of Devisingh (supra), the Full Bench of Madhya Pradesh High Court discussing in detail the meaning of ‘contributory negligence’ vis-a-vis Section 128 of Act came to a conclusion, which is as follows:- “12. In the decision of Devisingh (supra), the Full Bench of Madhya Pradesh High Court discussing in detail the meaning of ‘contributory negligence’ vis-a-vis Section 128 of Act came to a conclusion, which is as follows:- “12. A plain reading of Section 128 of the Act quoted above, would show that sub-section (1) casts a duty on the driver of a two wheeled motor cycle not to carry more than one person in addition to himself on the motor cycle. Similarly, Rule 123 of the Rules quoted above mentions the safety devices to be provided while manufacturing a motor cycle. These provisions obviously are safety measures for the driver and pillion rider and breach of such safety measures may amount to “negligence” but such negligence will not amount to “contributory negligence: on the part of the pillion rider or “composite negligence” on the part of the driver of the motor cycle, unless such negligence was partly the immediate cause of the accident or damage suffered by the pillion rider as would be clear from the authorities discussed above. 13. Thus, we are of the considered opinion that if the damage is the accident has not been caused partly on the account of violation of Section 128 of the Act by the pillion rider of the motor cycle, the pillion rider is not guilty of contributory negligence. Similarly, if the damage suffered by the pillion rider has not been caused partly on account of violation of Section 128 of the Act by the driver, the pillion rider cannot put up a plea of composite negligence by the driver. In other words, if breach of Section 128 of the Act, does not have a casual connection with the damage caused to the pillion rider, such breach would not amount to contributory negligence on the part of the pillion rider of the motor cycle or composite negligence on the part of the driver of the motor cycle.” Thus, following the principles laid down in the decision in the case of Devisingh (supra), I hold that neither the deceased nor the pillion riders can be held to be guilty of contributory negligence for violation of Section 128 (1) of Act. There is no other material on record to hold that there was contributory negligence either on the part of the deceased motorcyclist or the pillion riders (claimants herein). There is no other material on record to hold that there was contributory negligence either on the part of the deceased motorcyclist or the pillion riders (claimants herein). As such, finding of the learned Tribunal assessing the contributory negligence of the claimants to be 25% is hereby set aside. I hold that the Insurance Company is liable to pay the compensation. 8. The next contention of Mr. Choudhury with regard to quantum of compensation is well taken care of by the ratio decided by the Hon’ble Supreme Court in the case of Sarla Verma Vs. Delhi Tranport Corporation, reported in 2009 (3) Supreme 487 , since the dependant family members of the deceased is 5 in number, learned Tribunal ought to have deducted 1/4th towards personal and living expenses of the deceased. Deduction of 1/3rd towards personal and living expenses of the deceased is thus not sustainable. 9. Since the claimants-appellants did not raise any dispute with regard to assessment of income of the deceased at Rs.1.00 lakh per annum, I need not delve into the same. However, on perusal of the impugned award, it evinces that learned Tribunal has only awarded Rs.9,500/- towards funeral expenses. It has not awarded any amount on the heads of loss of estate, loss of love and affection as well as loss of consortium. Taking into consideration the ratio decided in the 2015 (2) TAC 337 (SC), 2015 (1) TAC 340 (SC) and 2015 (3) TAC 369 (SC), I hold that a consolidated amount of Rs.1,50,000/-towards loss of estate, loss of love and affection as well as loss of consortium would be just and adequate to meet the ends of justice. Application of multiplayer 15 is also just and proper. Hence, I modify the impugned award as follows: (i) the claimants shall be entitled to Rs.1.00 lakh x 15 x 3/4, i.e., Rs.11,25,000/-; in addition to that the claimants are also entitled to Rs.1.50 lakh towards loss of estate, loss of love and affection and consortium; (ii) Further, they are entitled to Rs.9,500/- twards funeral expenses; Thus, the total amount payable to the claimants is Rs.11,25,000/- + Rs.1,50,000/- + Rs.9,500/- = Rs.12,84,500/-. The rate of interest as awarded by the learned tribunal shall remain un-changed. The rate of interest as awarded by the learned tribunal shall remain un-changed. Hence, I direct the Insurance Company (Respondent No.2) to deposit the aforesaid amount of Rs.12,84,500/- together with 6% interest per annum from the date of filing of the claim petition before the learned Tribunal, within a period of six weeks hence, which shall be released in favour of the claimants proportionately in terms of the impugned award. 10. This Court vide order dated 09.01.2013 passed in Misc. Case No. 897 of 2012 had exempted the claimants from payment of Court fee for the time being. Hence, learned Tribunal is directed to realize a sum of Rs.5,000/- towards fee payable on the memorandum of appeal at the time of release of compensation amount in favour of the claimants. 11. With the aforesaid modification in the impugned award, the appeal is allowed in part.