PERSONAL
EXPENSES OF THE DECEASED BACHELOR
Appeal
(civil) 6313 of 2001
PETITIONER:
Bilkish
RESPONDENT:
United India Insurance
Co.Ltd.& Anr
DATE OF
JUDGMENT: 12/03/2008
(Also
reported in 2008 ACJ 1357 )
BENCH:
A.K.MATHUR &
ALTAMAS KABIR
JUDGMENT:
CIVIL APPEAL
NO. 6313 of 2001
A.K.MATHUR,J.
1. This
appeal is directed against the order dated 11.7.2000 passed by the
Division Bench of the Karnataka High Court whereby the Division Bench
has ordered the compensation in sum of Rs. 1,65,000/- towards
dependency and Rs. 10,000/- for the loss of estate & funeral
expenses. Aggrieved against this order, the present appeal was
preferred by
the appellant for suitable enhancement of the compensation.
Brief facts
which are necessary for the disposal of this appeal are as under:
2. That one
Hazi Mohammed Haneef died in a motor accident on 30.3.1993 when a
tempo bearing No. CAA 6591 dashed against the motorcycle
(KA-01-H-7054) which he was riding. He ultimately succumbed to
injuries and died. Therefore, the claimants (the parents of the
deceased) filed MVC No. 1039/1993 claiming compensation of
Rs.15,12,000/- under the various heads. The Tribunal allowed the
claim petition in part by judgment and award dated 23.9.1996 and held
that accident took place due to negligent driving of the tempo
bearing No. CAA 6591 and held that claimants were entitled to
compensation of Rs.1,75,000/- with interest at 6% p.a. from the date
of petition to the date of realization. The compensation amount
awarded in sum of Rs. 1,65,000/- towards loss of dependency and Rs.
10,000/- towards loss of estate & funeral
expenses.
3. Learned
counsel for the appellant submitted that the deceased was 20 years
of age and was a bachelor. His parents were aged 47 years and
42 years respectively. The deceased was studying in First Year
B.Com. course and he was also the proprietor of a business carried
under the name and style of H.S. Traders and was an income-tax
assessee. The deceased had an income of Rs. 31,494/- in his
business and had paid the income-tax on that. The Tribunal had
erroneously deducted 50% towards his personal, living expenses and
the contribution to the family/dependency worked out to Rs.
15,000/- per annum. The Tribunal applied multiplier of 11, looking
to the age of the parents and arrived at the total loss of
dependency at Rs. 1,65,000/-. Learned counsel submitted that the
assessment made by the Tribunal and affirmed by the High Court was
totally
erroneous. The incumbent was a bachelor, therefore, he could not
spend 50% of his income on himself. But three-fourth of the income
was contributed to the family and , therefore, the dependency
assessed by the Tribunal and by the High Court for a sum of Rs.
15,000/- was not correct. It was also submitted that the multiplier
of 11 applied by the Tribunal was also not correct.
4. After
hearing learned counsel for the parties, we are of the opinion
that the view taken by the High Court & Tribunal is not correct.
The incumbent was a bachelor and he could not
have spent more than 1/3rd of his total income for personal use and
rest of the amount earned by him would certainly go to the family
kitty. Therefore, determining the
loss of dependency by 50% was not correct. Therefore,
we assess that he must be spending 1/3rd towards personal use and
contributing 2/3rd of his income to his family. Therefore, we
work out that Rs. 30,000/- earned by him per annum. The loss of
dependency was 2/3rd i.e. Rs. 20,000/- . The multiplier of '11'
applied for loss of dependency was also not correct and as per
schedule appended to the Motor Vehicles Act, 1988 it should be
'12'. Applying the multiplier of 12 the total loss of dependency
will be Rs.
20,000/-x 12 = Rs. 2,40,000/- and Rs, 10,000/- towards loss of
estate & funeral expenses, the total compensation comes to Rs.
2,50,000/- and incumbent is entitled for interest @ 9/% per annum
from the date of the petition. The appeal is allowed with the
aforesaid modification. If any amount had already been paid to
the claimant
then that amount may be deducted from the total amount.
Consequently, the appeal is allowed in part with no order as to
costs.
MACC
CASES – DECEASED BACHELOR – COMPENSATION.
SYED BASHEER AHAMED & ORS. v.
MOHD. JAMEEL & ANR. [2009] INSC 12 (6 January 2009) = 2009(1)TAC
794(SC)
Judgement
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 10 OF 2009 (Arising out of S.L.P. (C) No.18001 of 2006)
SYED BASHEER AHAMED & ORS. -- APPELLANTS VERSUS
D.K. JAIN, J.:
10.In General Manager, Kerala State Road Transport &
Ors.2, 2 (1994) 2 SCC 176 7 ( M.N. Venkatachaliah, J. as his
Lordship then was) had observed that the determination of the quantum
must answer what contemporary society "would deem to be a fair
sum such as would allow the wrongdoer to hold up his head among his
neighbours and say with their approval that he has done the fair
thing". The amount awarded must not be niggardly since the "law
values life and limb in a free society in generous scales". At
the same time, a misplaced sympathy, generosity and benevolence
cannot be the guiding factor for determining the compensation. The
object of providing compensation is to place the claimant(s), to the
extent possible, in almost the same financial position, as they were
in before the accident and not to make a fortune out of misfortune
that has befallen them.
18.On the question of deduction on account of
personal expenses by the deceased, there is no set formula which
could be applied in every case to determine as to what should be the
deduction on this account. The contention that deduction on that
count cannot exceed one-third on the ground that there is some
statutory recognition in the Second Schedule to the Act for such
deduction, is untenable. The said deduction would depend upon the
facts and circumstances of each case. In the present case, no
evidence was led on this point as well. In the absence of any
evidence to the contrary, the practice is to deduct towards personal
and living expenses of the deceased, one- third of the income in case
he was married and one-half (50%) if he was a bachelor. Thus, there
is no material on record warranting interference with the consistent
view of both the courts below on the point.
A
GRATUITOUS PASSENGER: COMPENSATION IN MAC CASES.
(SLP (C) No.20608 of 2008 Date of Judgement : 14.11.08 Dr. Arijit
Pasayat and Dr. Mukundakam Sharma JJ.)
General
Manager, United India Co. Ltd v M. Laxmi and others, AIR 2009
SC 626
Motor
Vehicle Act (59 of 1988), S. 147 – Liability of Insurance Company –
Policy of Insurance in respect of scooter was Act policy – Scooter
met with accident – Death of pillion rider, a gratuitous passenger
in accident – claim for compensation – Insurance Company would
not be liable to pay compensation.
7.
In New India Assurance Co. Ltd. v. Asha Rani and Ors. (2003), it
has been noted as follows:-
“ Section
147 of the 1988 Act, inter alia, prescribes compulsory coverage
against the death of or bodily injury to any passenger of “public
service vehicle”. Proviso appended thereto categorically states
that compulsory coverage in respect of drivers and conductors of
public service vehicle and employees carried in a goods vehicle would
be limited to the liability under the Workmen's Compensation Act. It
does not speak of any passenger ina “goods carriage.”
In view
of the challenge in the relevant provisions in the 1988 Act vis-a-vis
the 1939 Act, we are of the opinion that the meaning of the words
“any person”, must also be attributed having regard to the
context in which they have been used i.e. “a third party”.
Keeping in view the provisions of the 1988 Act, we are of the opinion
that as the provisions of the 1988 Act, we are of the opinion that as
the provisions thereof do not enjoin any statutory liability on the
owner of a vehicle to get his vehicle insured for any passenger
traveling in a goods vehicle, the insured would not be liable
therefor.
Furthermore,
Sub-Clause (i) of clause (b) of sub-section 147 speaks of liability
which may be incurred by the owner of a vehicle in respect of death
of or bodily injury to any person or damage to any property of a
third party caused by or arising out of the use the vehicle in a
public place, whereas sub-clause (ii) thereof deals with liability
which may be incurred by the owner of a vehicle against the death of
or bodily injury to any passenger of a public service vehicle caused
by or arising out of the use of the vehicle in a public place.”
8.
In United India Assurance Co. Ltd., Shimla v. Tilak Singh and
Others (2006(4)SCC 404), it has been noted as follows:
“ In
our view, although the observations made in Asha Rani case (supra)
were in connection with carrying passengers in a goods vehicle,
the same would apply with equal force to gratuitous passengers in
any other vehicle also. Thus, we
must uphold the contention of the appellant-Insurance Company that
it owed no liability towards the injuries suffered by the
deceased-Rajinder Singh who was a pillion rider, as the insurance
policy was a statutory policy, and hence it did
not cover the risk of death of or bodily injury to a gratuitous
passenger.”
9. In
view of what has been stated by this Court in Asha Rani and Tilak
Singh cases (supra), the order of the High Court is clearly
unsustainable and is set aside and that of the MACT is restored.”
XXXXX XXX XXX XXXX
DRIVING
LICENCE OF THE DRIVER NOT IN FORCE ON
THE DATE OF ACCIDENT : INSURANCE COMPANY
EXONERATED FROM ITS
LIABILITY TO PAY
NATIONAL INSURANCE
COMPANY LTD.
versus
VIDYADHAR MAHARIWALA &
OTHERS.
(Civil Appeal No.5721 of
2008 ( arising out of SLP (C) No. 13174 of 2007)
Date of Judgement:
17-09-2008.
Also reported in AIR
2009 SC 208
Motor Vehicles Act (59 of
1988 ), S. 149 – Liability of Insurance Company – Accident –
Driving Licence of driver of offending vehicle was not in force on
the date of accident – Insurance Company , held, exonerated from
its liability.
2007 AIR SCW 1889
followed. (Para 11)
11. In Ishwar Chandra's
case (supra) the three decisions referred to by the High Court were
considered and it was held that the insurance company would have no
liability in a the case of this nature. We are in agreement with the
view. The appeal deserves to be allowed which we direct. The impugned
order of the High Court is set aside. It is open to the claimant to
recover the amount from the respondent No.2.
***************************************************************
DEATH
OF A PILLION RIDER: LIABILITY OF THE INSURANCE COMPANY
IN THE
SUPREME COURT OF INDIA
CIVIL
APPELLATE JURISDICTION
CIVIL
APPEAL NO. 3634 OF 2008
(Arising
out of S.L.P. (C) No.19562/2006)
( Also reported
in 2008 ACJ 2045 )
Oriental Insurance Co.
Ltd. ....Appellant
Versus
Sudhakaran K.V. & Ors.
...Respondent
JUDGMENT
S.B.SINHA.J
1. This appeal is
directed against a judgment and order dated 22.3.2006 passed by the
High Court of Kerala at Ernakulam in M.F.A. No. 536 of 1999 whereby
and whereunder the appeal preferred by the appellant herein from the
judgment and award dated 31.10.1998 passed by the Motor Accident
Claims Tribunal, Perumbavoor awarding a sum of Rs.1,18,900/-(Rupees
One lakh eighteen thousand and nine hundred only) together with
interest thereon at the rate of 12% p.a. from the date of the filing
of the claim petition till date of realization of the amount against
the appellant as also against the owners of the vehicle was
dismissed.
2. The basic fact
of the matter is not in dispute. Thankamani (hereinafter referred to
as the deceased) was travelling as a pillion rider on a scooter on
20.10.1993. She fell down from the scooter and succumbed to the
injuries sustained by her. In regard to the said accident, a claim
petition was filed.
******* ********
12. A Division
Bench of this Court in United India Insurance Co. Ltd., Shimla v.
Tilak Singh and Ors. [(2006) 4 SCC 404] extended the said principle
to all other categories of vehicles also, stating as under:
"In
our view, although the observations made in Asha Rani case were in
connection with carrying passengers in a goods vehicle, the same
would apply with equal force to gratuitous passengers in any other
vehicle also. Thus, we must uphold the contention of the appellant
Insurance Company that it owed no liability towards the injuries
suffered by the deceased Rajinder Singh who was
a pillion rider, as the insurance policy was a statutory
policy, and hence it did not cover the risk of death of or bodily
injury to a gratuitous passenger."
13. The submission
of Mrs. Bhat, learned counsel, however, is that this Court should not
extend the said principle to the vehicles other than the goods
carriage. As at present advised, we may not go into the said question
in view of some recent decisions of this Court, viz., National
Insurance Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700], Oriental
Insurance Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] and New India
Assurance Co. Ltd. v. Ved
Wati [(2007) 9 SCC 486].
14. The provisions
of the Act and, in particular, Section 147 of the Act were enacted
for the purpose of enforcing the principles of social justice. It,
however, must be kept confined to a third party risk. A contract
of insurance which is not statutory in nature should be construed
like any other contract.
15. We have noticed
the terms of the contract of insurance. It was entered into for the
purpose of covering the third party risk and not the risk of the
owner or a pillion rider. An exception in the contract of insurance
has been made, i.e., by covering the risk of the driver of the
vehicle. The deceased was, indisputably, not the driver of the
vehicle.
16. The contract of
insurance did not cover the owner of the vehicle, certainly not the
pillion rider. The deceased was travelling as a passenger, stricto
sensu may not be as a gratuitous passenger as in a given case she may
not be a member of the family, a friend or other relative. In the
sense of the term which is used in common parlance, she might not be
even a passenger.
In view of the
terms of the contract of insurance, however, she would not be covered
thereby.
It is not
necessary for us to deal with large number of precedents operating in
this behalf as the question appears to be covered by a few recent
decisions of this Court.
17. In United India
Insurance Company Ltd. v. Serjerao & Ors.[2007 (13) SCALE 80], it
was held as under:
"16....When
a statutory liability has been imposed upon the owner, in our
opinion, the same cannot extend the liability of an insurer to
indemnify the owner, although in terms of the insurance policy or
under the Act, it would not be liable therefor.
17. In a
given case, the statutory liability of an insurance company,
therefore, either may be nil or a sum lower
than the amount specified under Section 140 of the Act.
Thus,when a separate application is filed in terms of Section
140 of the Act, in terms of Section 168 thereof, an insurer has to be
given a notice in which event, it goes without saying, it would be
open to the insurance company to plead and prove that it is not
liable at all.
18.
Furthermore, it is not in dispute that there can be more than one
award particularly when a sum paid may have to be adjusted from the
final award. Keeping in view the provisions of Section 168 of the
Act, there cannot be any doubt whatsoever that an award for enforcing
the right under Section 140 of the Act is also required to be
passed under Section 168
only after the parties concerned have filed their pleadings and have
been given a reasonable opportunity of being heard. A Claims
Tribunal, thus, must be satisfied that the conditions precedent
specified in Section 140 of the Act have been substantiated, which is
the basis for making an award.
19.
Furthermore, evidently, the amount directed to be paid even in terms
of Chapter-X of the Act must as of necessity, in the event of
non-compliance of directions has to be recovered in terms of Section
174 of the Act. There is no other provision in the Act which takes
care of such a situation. We, therefore, are of the opinion that even
when objections are raised by the insurance company in regard to it
liability, the Tribunal is required to render a decision upon the
issue, which would attain finality and, thus, the same would be any
award within the meaning of Section 173 of the Act."
It was
furthermore held as under:
"8.
So far as the question of liability regarding labourers travelling in
trollies is concerned, the matter was considered by this Court in
Oriental Insurance Company Ltd. Vs. Brij Mohan and Ors. (2007) 7
SCALE 753 and it was held that the Insurance Company has no
liability...""
18. Yet again in
Ghulam Mohammad Dar v. State of J&K and Ors. [(2008) 1 SCC 422],
this Court opined that the words "injury to any person" as
inserted by reason of the 1994 Amendment would only mean a third
party and not a passenger travelling on a goods carriage whether
gratuitous or otherwise. [See also The New India Insurance
Company v. Darshana Devi & Ors. 2008 (2) SCALE 432]
19. The law which
emerges from the said decisions, is: (i) the liability of the
insurance company in a case of this nature is not extended to a
pillion rider of the motor vehicle unless the requisite amount of
premium is paid for covering his/her risk (ii) the legal obligation
arising under Section 147 of the Act cannot be extended to an injury
or death of the owner of vehicle or the pillion rider; (iii) the
pillion rider in a two wheeler was not to be treated as a third party
when the accident has taken place owing to rash and negligent riding
of the scooter and not on the part of the driver of another vehicle.
20. For the views we
have taken, it is not necessary to refer to a large number of
decisions cited at the Bar as they are not applicable in a case of
this nature.
21. For the reasons
aforementioned, the impugned judgment cannot be sustained. It is set
aside accordingly. The appeal is allowed. No costs
[S.B. Sinha] and [Lokeshwar Singh Panta].........JJ
************************************************
AVERAGE
INCOME OF A NON SKILLED LABOUR
Appeal
(civil) 2090 of 2008
PETITIONER:
Laxmi Devi & Others
versus
RESPONDENT:
Mohammad Tabbar & Another
DATE OF
JUDGMENT: 25/03/2008
BENCH:
S.B. Sinha & V.S. Sirpurkar ........JJ
(Also
reported in 2008 ACJ 1488 and 2008 (2) T.A.C. 384 SC
J U D G M E
N T
(Arising out
of SLP (C) No.16034 of 2007)
V.S.
SIRPURKAR,J.
(SOME
IMPORTANT PASSAGES FROM THE JUDGEMENT)
2. This
appeal is filed by the widow and five children of one Rajendra Singh
who died in an accident on 12.4.2004 when he was riding on his
bicycle and was given a dash by the offending vehicle, a Canter Truck
bearing Registration No.UA-04-1486. Rajendra Singh died on the
spot. The driver of the offending vehicle was caught on the spot.
The claimants, therefore, filed the claim before the Motor Accidents
Claims Tribunal on the basis that Rajendra Singh used to earn
Rs.140/- per day and Rs.4200/-
per month
and that his age at the time of accident was barely 35 years. In
support of the claim, three witnesses including Laxmi Devi, the wife
of the deceased were examined and the Tribunal, on the basis of the
evidence, held that the deceased Rajendra Singh died on account of
the injuries sustained by him in the accident on 12.4.2004 which
accident had occurred due to rash and negligent driving of the
offending vehicle. As
regards the
income, the Tribunal assessed the same at Rs.15,000/- per annum on
the basis of the notional income prescribed in Second Schedule under
Section 163-A of the Motor Vehicles Act. After deducting 1/3rd of
the said amount as the personal expenses of the deceased, the
claimants dependency was assessed at Rs.10,000/- per month and by
multiplying the annual dependency of Rs.10,000/- with the multiplier
of 16, the
compensation
was worked out to Rs.1,60,000/-. The other claims were also awarded
being Rs.2,000/- for funeral expenses, Rs.5,000/- for loss of
consortium to the widow and Rs.2,000/- for loss of estate. Thus a
total sum of Rs.1,69,000/- was awarded as compensation to the
claimants. The Tribunal directed the payment of interest on the
amount of compensation at the rate of 6% per annum from the date of
claim petition.
4. The High
Court confirmed the earlier findings regarding the negligence of
death. However, the High Court came to the conclusion that though
the claim of the income of Rs.4200/- per month was not reliable, the
notional income should have been held to be Rs.36,000/- per annum,
i.e., Rs.3,000/- per month. For this proposition the High Court
held that the notional income of Rs.15,000/- in the Second Schedule
was prescribed in the year 1994 while the accident had taken place in
the year 2004. The second reason given by the High Court was that
even an unskilled labourer, these days, can easily earn Rs.100/- per
day and Rs.3,000/- per month and, therefore, the High Court held the
income to be Rs.36,000/- per annum and by deducting 1/3rd of the
income of the deceased for his personal expenses, the claimants
dependency was assessed at Rs.24,000/- per annum. However, the
High Court reduced the multiplier of 16 applied by the Tribunal to
12. For this action, the High Court relied on the aforementioned
judgment in T.N. Transports Corporations case. The High Court thus
applied the multiplier of 12 instead of 16 and ultimately the High
Court arrived at the figure of Rs.2,88,000/- and to this the other
compensation on account of funeral expenses, loss of consortium to
the widow and loss of estate, which were granted by the Tribunal,
were added and the total compensation of Rs.2,97,000/- was awarded by
the High Court. The claimants, dissatisfied with this finding,
have filed
this appeal before us.
7. Considering
the above principles in this case, we must say that the High Court
has definitely erred in bringing down the multiplier to 12. It is to
be seen that in this case the deceased was 35 years old. The
claimants are his wife and four minor daughters. Even as per the
Second Schedule the multiplier in case of the persons between 35 to
40 years is 16. In the present case the rate of interest granted is
only 6% considering the general rate of interest prevalent in 2004.
In our opinion, therefore, the proper
multiplier
would be 14 as the value of the notional income has been increased.
It was nobodys case that the deceased was not working at all. His
wife has entered in the witness box and had asserted that he earned
Rs.140/- per day. Even if we ignore the
exaggeration, the figure arrived at by the High Court at Rs.100/- per
day and Rs.3,000/- per month appears to be correct.
However, considering that the claimant would get only 6% interest, we
would chose to grant the multiplier of 14 instead of 12. Accordingly
the notional income as applied would be Rs.24,000 x 14 =
Rs.3,36,000/- and to this will be added the other compensation like
Rs.2,000/- as funeral expenses, Rs.5,000/- for the loss of consortium
to the widow and Rs.2,000/- for the loss of estate. The claimants
would,
therefore,
be entitled to a sum of Rs.3,45,000/-. The said sum shall carry the
interest at the rate of 6% per annum from the date of claim petition.
8. In view
of the above, the appeal is allowed. There would be no order as to
costs.
*****************************************************************
MINOR
WITHOUT DL: CAN CLAIM COMPENSATION IF NOT NEGLIGENT
PETITIONER:
Sudhir Kumar Rana
versus
RESPONDENT:
Surinder Singh & Ors
DATE
OF JUDGMENT: 06/05/2008
BENCH:
S.B.
Sinha & Lokeshwar Singh Panta
(
Also reported in 2008 ACJ 1834 )
CIVIL
APPEAL NO. 3321 OF 2008
[Arising
out of SLP (Civil) No. 8262 of 2007]
S.B.
SINHA, J :
1.
Leave granted.
2.
Appellant was driving a two-wheeler bearing registration No. DL-45
AQ 0731 on 30.10.2003. He was aged about 17
= years. He met with an accident, as allegedly respondent
No.1 was driving a mini-truck rashly and negligently. He suffered
the following injuries in the said accident:
"1. Crush
injury over right root.
2. Fracture
fifth M.T. bone and joint.
3. Fracture
P.P. little toe. (Total 3 fractures)
4. Abrasions
over left side trunk, right-foot, right-leg, right-hand and
left-knee
5. Profusely
Bleeding.
6. Abrasions
and blunt injuries all over body."
3.
Appellant filed a claim petition under Section 166 of the Motor
Vehicles Act, 1988 (for short "the Act"). The Tribunal
opined that as the appellant did not possess a driving licence, he
must be held to have contributed to the accident. Although a sum of
Rs. 30,000/- was awarded by way of compensation, in view of the
finding that he was guilty of contributory negligence on his part,
found to be entitled to a sum of Rs.
12,000/-
only. The High Court by reason of the impugned judgment has
dismissed the appeal preferred by him under Section 173 of the Act.
4.
The question which arises for consideration is as to whether the
appellant can be said to have guilty of contributory negligence.
Ordinarily, the doctrine of contributory negligence is not applicable
in case of children with the same force as in the case of adults.
5.
We do not intend to lay down a law that a child can never be guilty
of contributory negligence but ordinarily the same is a question of
fact. [See Muthuswamy and another v. S.A.R. Annamalai and others
[1990 ACJ 974]
6. A
contributory negligence may be defined as negligence in not avoiding
the consequences arising from the negligence of some other person,
when means and opportunity are afforded to do so. The question of
contributory negligence would arise only when both parties are found
to be negligent.
7.
The question is, negligence for what? If the complainant must be
guilty of an act or omission which materially contributed to the
accident and resulted in injury and damage, the concept of
contributory negligence would apply. [See New India Assurance
Company Ltd. v. Avinash 1988 ACJ 322 (Raj.)]
In
T.O. Anthony v. Kavarnan & Ors. [(2008) 3 SCC 748, it was held
"6.
'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. 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 of 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.
7.
Therefore, when two vehicles are involved in an accident, and one of
the drivers claims compensation from the other driver alleging
negligence, and the other driver denies negligence or claims that the
injured claimant himself was negligent, then it becomes necessary to
consider whether the injured claimant was negligent and if
so,
whether he was solely or partly responsible for the accident and the
extent of his responsibility, that is his contributory negligence.
Therefore where the injured is himself partly liable, the principle
of 'composite negligence' will not apply nor can there be an
automatic inference that the negligence was 50:50 as has been assumed
in this case. The Tribunal ought to have examined the extent of
contributory negligence of the appellant
and
thereby avoided confusion between composite negligence and
contributory negligence. The High Court has failed to correct the
said error."
8.
If a person drives a vehicle without a licence, he commits an
offence. The same, by itself, in our opinion, may not lead to a
finding of negligence as regards the accident. It has been held by
the courts below that it was the driver of the mini-truck which was
being driven rashly and negligently. It is one thing to say that the
appellant was not possessing any licence but no finding of fact has
been arrived at that he was driving the two-wheeler rashly and
negligently. If
he was not driving rashly and negligently which contributed to the
accident, we fail to see as to how, only because he was not having a
licence, he would be held to be guilty of contributory negligence.
9.
The matter might have been different if by reason of his rash
and negligent driving, the accident had taken place.
10. We,
therefore, are of the opinion that the impugned judgment cannot be
sustained which is set aside accordingly. Appellant is entitled to
the said sum of Rs. 30,000/- by way of compensation with interest at
the rate of 7=% per annum from the date of the award till making of
the payment. Even otherwise there is no reason as to why in view
of the nature of the injuries he has suffered, he should be deprived
of even the petty sum of Rs.30,000/- by way of compensation. The
appeal is allowed with the aforementioned
direction.
No costs.
