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2019 DIGILAW 2882 (RAJ)

Banshi Lal v. Aaravali Fainlease Limited

2019-11-21

PUSHPENDRA SINGH BHATI

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JUDGMENT Pushpendra Singh Bhati, J. - Both these appeals have been preferred by the appellants/claimants seeking enhancement of the compensation awarded vide common judgment dated 9.8.2002 passed by Motor Accident Claims Tribunal, Nathdwara arising out of the same accident. 2. The accident in question happened on 20.4.1998 at about 10:00 PM when the appellants along with one Shoorveer Singh were going from Nathdwara to Rajsamand on a motorcycle and were struck by a video coach bus bearing no.GJ-18T/8011 which was being driven rashly and negligently. 3. Learned counsel for the appellants submits that the learned Tribunal has attributed contributory negligence of the motorcycle only on the count that there were 3 persons sitting on the motorcycle even when the main negligence has been attributed to the bus. For fortifying the submission that three persons sitting on the motorcycle would not automatically lead to contributory negligence, learned counsel for the appellants has relied upon the judgment of this Court in the case of United India Insurance Co. Ltd. Vs. Santosh Devi and others, (2014) ACJ 1287 , relevant paras no.17, 21,23 and 24 whereof read as follows:- "17. It is trite law that negligence of the plaintiff, which can be described as contributory negligence, must have casual connection with the damage suffered by him. 21. It is thus clear from what has been held by the Hon'ble Supreme Court that negligence ordinarily means breach of a legal duty to take care, whereas contributory negligence means the failure by a person to use reasonable care for the safety of either of himself or his property so that he himself or his property, becomes blameworthy in part as author of his own wrong. 23. Recently this court in Ram Ratan v. Shobha and Ors. : S.B. Civil Misc. Appeal No.665/2009 decided on 01.04.2013 held that merely because a driver had consumed liquor and while going on correct side of the road is struck by a offending vehicle, which is being driven rashly and negligently, merely because the suffering driver had consumed liquor, it cannot ipso facto said that he had contributed to the said accident. 24. So far as the judgment of this Court in Yuvraj (supra) is concerned, in the said judgment also the Court observed as under:- "Learned counsel for the appellant has relied upon the case of National Insurance Company and Ors. 24. So far as the judgment of this Court in Yuvraj (supra) is concerned, in the said judgment also the Court observed as under:- "Learned counsel for the appellant has relied upon the case of National Insurance Company and Ors. v/s. Kastori Devi and Ors., (1988) ACJ 8 , in order to buttress his contention that merely because three riders are riding on a motor cycle, no presumption can be drawn that they have contributed to the occurrence of the accident. Need less to say that there is no such presumption in law, but each case has to be decided on the peculiar facts and circumstances of the case." Learned counsel for the appellant thus seeks recomputation of the compensation as per the revised guidelines for settlement in MACT cases as issued by Rajasthan State Legal Services Authority dated 05.11.2018. 4. Learned counsel for the respondent insurance company opposes the submissions made. He submits that three persons sitting on the motorcycle itself contributes to negligence because it would be difficult to maintain balance of the vehicle when three persons are sitting on the motorcycle. 5. After hearing the learned counsel for the parties and after perusing the record, this Court is of the opinion that the precedent law in Santosh Devi's case (supra) is fully applicable in the acts of this case. Lack of safety measures by the motorcycle driver can be termed as negligence if the act is attributed to the motorcycle but once the learned Tribunal has arrived at a finding that the main negligence was of the bus, then merely because safety measures were not taken, would not make the motorcycle driver to be negligent and hence, contributory negligence of the motorcycle cannot be allowed. 6. In view of the above, both these appeals are allowed to the extent that the contributory negligence of the motorcycle is done away with. Thus, learned counsel for the parties were asked to jointly submit the calculation afresh as per the revised guidelines for settlement in MACT cases as issued by Rajasthan State Legal Services Authority dated 05.11.2018, which they have furnished before this Court and the same reads as follows:- Civil Misc. Appeal No.569/2003 :- Age of the Injured 30 years. Simple Injury (1) (2500 x 1) Rs.2,500/- Permanent Disability (20%) [25,000 + (20 x 4,000) 80,000. Appeal No.569/2003 :- Age of the Injured 30 years. Simple Injury (1) (2500 x 1) Rs.2,500/- Permanent Disability (20%) [25,000 + (20 x 4,000) 80,000. Rs.1,05,000/- Hospitalisation 90 days (90 x 1100) Rs.99,000/- Loss of Income (as already given by the learned Tribunal) Rs.4,500/- Expenditure on special diet (as already given by the learned Tribunal) Rs.2,500/- Transportation expenses (as already given by the learned Tribunal) Rs.5,000/- Total of above Rs.2,18,500/- Pain and Sufferings (25% of 2,18,500) Rs.54,625/- Medical Expenses Rs.13,500/- Total Award Rs.2,86,625/- Compensation awarded by Tribunal Rs.68,000/- Enhanced Compensation. Rs.2,18,625/- Civil Misc. Appeal No.374/2004 :- Age of the Injured 30 years. Permanent Disability (35%) [25,000 + (35 x 5,000) 1,75,000. Rs.2,00,000/- Hospitalisation 90 days (90 x 1100) Rs.99,000/- Loss of Income (as already given by the learned Tribunal) Rs.4,500/- Expenditure on special diet (as already given by the learned Tribunal) Rs.5,000/- Total of above Rs.3,08,500/- Pain and Sufferings (25% of 3,08,500) Rs.77,125/- Medical Expenses Rs.4,500/- Total Award Rs.3,90,125/- Compensation awarded by Tribunal Rs.85,000/- Enhanced Compensation. Rs.3,05,125/- 7. With the consent of learned counsel for the parties and as per the revised guidelines for settlement in MACT cases as issued by Rajasthan State Legal Services Authority dated 05.11.2018, the enhanced award of Rs.2,18,625/- in S.B. Civil Misc. Appeal No.569/2003 and Rs.3,05,125/- in S.B. Civil Misc. Appeal No.374/2004 is granted which shall be payable along with interest @ 6% per annum from the date of filing of claim petition till actual payment is made. The enhanced amount is to be paid within three months from today, failing which the same shall carry interest @ 9% per annum for the subsequent period (i.e. after three months from today) till actual payment is made. 8. All pending applications also stand disposed of. 9. Record be send back forthwith.