2017(3) Law Herald (P&H) 2311 : 2017 LawHerald.Org 1346
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
 Hon’ble Mrs. Justice Anita Chaudhry
XOBJC No. 119-CII of 2012 in/and FAO No. 4110 of 2012 (O&M)
1CICI Lombard General insurance Co. Ltd.
v.
Manjo Devi & Ors.
Decided on 25/07/2017
For the Appellant:                         Ms. Vandana Malhotra, Advocate.
For the respondent nos.1 to 4.:        Mr. S.S. Kharab, Advocate.
Mr. R.K. Singla, AAG, Haryana.
Motor Vehicles Act, 1988, S.166–Accident–Negligence–Sitting capacity of vehicle-
-The deceased was driving with three children on the pillion who were in the
age group of 12—The motorcycle is designed to ride two persons but that by
itself would not be a ground to hold the driver guilty of contributory
negligence.                                                                                    (Para 6)
There was no evidence that the motorcyclist all of a sudden turned the motorcycle on the road to use the cut between the roads-The site plan available on record does not show any cut on that road and false plea had been taken by the owner-driver. It was not a case of contributory negligence, though it is a case of violation of Section 128 of the Motor Vehicle Act
CASES CITED:
  1. Angrep Devi & Ors. v. Jai Parkash & Ors. 2014(6) Law Keraid (P&H) 5314. (Para 4)
  2. Managing Director, Tamil Nadu State Trans. Corpn. Ltd. v. Abdul Salam & Ors. 2004 ACJ 1827. (Para 4)
JUDGMENT
Mrs. Anita Chaudhry, J.:- The insurance company has challenged the award dated 22.03.2012, passed by the Motor Accident Claims Tribunal, Panipat. Cross-objections have been filed by the claimants seeking enhancement in the award.
  1. An accident had taken place on 24 11.2009. Virender was driving a motorcycle and three
    children in the age group of 12 were pillion riders. Their uncle Virender had picked them up
    from school. The accident occurred with a bus which came from Panipat side. Three claim
    petitions were filed.
  2. The present appeal pertains to the death of Virender who was stated to be a Commission
    The claimants had pleaded that he had income of Rs.20,000/- per month. Some J
    forms were produced on record and were exhibited. The Tribunal rejected those
    documents which were photocopies and had not been proved and took the income of the
    deceased to be Rs.6,000/- per month and making a deduction of 1/4th the annual
    dependency was calculated as Rs.54,000/- and multiplier of 14 was applied. Expenditure
    of Rs.1,56,735/- was shown as the amount spent on the treatment. The Tribunal had
    allowed the following compensation:-

Sr.A/o.         Head of Compensation                    Amount
  1. Loss of Dependency 7,56,0007-
  2. Medical expenses 1,56,735/-
  3. Loss oflove/affection 70,0007-
  4. Loss of estate 10,000/-
  5. Loss consortium (widow) 5,0007-
  6. Transportation 10,000/-
  7. Funeral and last rites 10,000/-
 
TOTAL                                      Rs.9,57,7357-
  1. Counsel for the insurance company urges that the deceased was negligent and there were
    three children sitting on the motorcycle and it was a case of contributory negligence and the
    motorcyclist was at fault and he was guilty of contributory negligence to the extent of 50% and
    the amount be accordingly reduced. The counsel further submits that the deceased was driving
    with 3 children who were in the age group of 12 and they would occupy the pillion seat and there
    was a violation of Section 128 of the Motor Vehicle Act and there was every possibility that he had
    lost control. Reliance was placed upon Angrejo Devi and others Vs. Jai Parkash and others
    [2014(6) Law Herald (P&H) 5314]: 2013(2) RCR (Civil) 161 and Managing Director, Tamil
    Nadu State Trans. Corpn. Ltd. Vs. Abdul Salam and ors. 2004 ACJ 1827.
  2. The submission on the other hand is that it was not a case of contributory negligence as the bus
    which was coming from Panipat side had hit the motorcycle from behind and it was on the left
    side of the road and a wrong plea had been taken by the driver that the motorcyclist was wanting
    to use the cut in the road to turn right and the site plan available on the record would also show
    the location where the accident had occurred. The counsel submits that the Tribunal had taken
    the lower income to calculate the loss and they had produced J forms to show that he was selling
    goods to the Commission Agent and the income of a labourer could not be taken for assessment.
    Counsel had referred to Ex. P-50 to P-62. The counsel also submits that the Tribunal had
    allowed only Rs.5,000/- for loss of consortium and vefy less amount had been allowed for loss
    of love and affection and they were entitled to increase on all the heads.
  3. The insurance company has taken a plea that it was a case of contributory negligence but I
    find that no issue had been framed nor any evidence had been led. From the perusal of the
    statements on record it is clear that the motorcycle with the three children was going on the left
    side of the road. The bus driver tried to overtake another vehicle in front from its left and went
    to the extreme left side and struck against the motorcycle going in front and that is how the
    occupants of the motorcycle suffered injuries. The police had challaned the bus driver. There
    was no evidence that the motorcyclist all of a sudden turned the motorcycle on the road to use
    the cut between the roads. The site plan available on record does not show any cut on that
    road and false plea had been taken by the owner-driver. It was not a case of contributory
    negligence, though it is a case of violation of Section 128 of the Motor Vehicle Act. The
    deceased was driving with three children on the pillion who were in the age group of 12. The
    motorcycle is designed to ride two persons but that by itself would not be a ground to hold the
    driver guilty of contributory negligence.
  1. Much stress had been led by the counsel appearing for the cross-objectors with
    respect to the income but I find that there is no convincing evidence to show the income.
    The claimants had introduced some receipts to show that some crop had been sold to
    the Commission Agent. The receipts only give the name and not the father’s name,
    therefore, it could not be established that it related to the deceased. The claimants could
    have easily produced the Jamabandi to show that he owned land or had taken any land
    on lease. If there was no written document, the owner could have been examined to lend
  2. The claimants had examined Suresh Kumar who had stated that the deceased used to sell
    produce at his shop and J forms were issued for the sale but this has to be rejected as the
    name of the father and other details are not mentioned therein. It could not be proved by the
    claimants that it was the deceased who was selling the produce. The witness did not even know
    whether Virender had any agricultural holding in the village. The witness had stated that after
    his death, nobody had come to his shop to sell crop. An explanation was required from the
    claimants as to what happened to the land.
  3. There is no evidence with respect to educational qualifications of the deceased. The
    minimum wages in the year 2009 were Rs.3,840/- per month. The Tribunal had considered the
    income to be Rs.6,000/- per month which is adequate and I do not propose to make any
    change and considering the family members the deduction of 1 /4th was made. The deceased
    had left behind a minor daughter and his widow. Two other claimants were his parents but I do
    not propose to make any change in the multiplier. However, the award needs to be modified as
    the amount allowed on the miscellaneous heads is less, therefore, I would allow Rs.95,000/-
    for loss of consortium, Rs.90,000/- for loss of estate, Rs.90,0007- for loss of love and affection
    for the children and Rs.10,000/-more for transportation. The total addition comes to Rs.
    2,85,000/-. The cross-objectors/claimants would be entitled to an additional amount of Rs.
    2,85,000/-, which would be payable with interest @ 6% from the date of filing of the cross-
    objections till realization.
  4. The appeal filed by the insurance company fails. The award is modified to the extent noted
    above. The cross-objections filed by the claimants are partly allowed