Violation Of Law By Itself Cannot Lead To A Finding Of Contributory Negligence

0
578

Aggrieved by the order of the High Court reducing the compensation awarded by the Motor Accident Claims Tribunal from the sum of Rs.11,66,800/­ to Rs.4,14,000/­, the parents of the deceased­accident victim have come up with the above appeal.

Reason:

4. Admittedly, the son of the appellants who was aged about 23 years, died on 7.09.2008 as a result of the injuries sustained in a road traffic accident that took place on 5.09.2008. It appears that the victim was one of the 2 pillion riders on a motor cycle and he was thrown off the vehicle when a car hit the motor cycle from behind. The Motor Accident Claims Tribunal found that the accident was caused due to the rash and negligent driving of the car. This finding was confirmed by the High Court, though with a rider that the victim was also guilty of contributory negligence, in as much as there were 3 persons on the motor cycle at the time of the accident, requiring a reduction of 10% of the compensation awarded.

5. On the question of quantum of compensation, the appellants claimed that their son was aged 23 years at the time of the accident and that he was employed in a proprietary concern on a monthly salary of Rs.9600/­. The employer was examined as PW­2 and the certificate issued by him was marked as Ex.P­1/8. Finding no reason to disbelieve the testimony of PW­2, the Tribunal applied a multiplier of 18 and arrived at a sum of Rs.10,36,800/­ towards loss of dependency, after deducting 50% of the salary towards personal expenses, as the deceased victim was a bachelor. In addition, the Tribunal also allowed a sum of Rs.1,00,000/­ for loss of love and affection; Rs.20,000/­ for the performance of last rites and Rs.10,000/­ towards loss of Estate. Accordingly, the Tribunal arrived at an amount of Rs.11,66,800/­ as the total compensation payable.

6. As against the said award, the Insurance Company filed a statutory appeal under Section 173 of the Motor Vehicles Act, 1988. The appeal was primarily on two grounds namely (i) that the deceased was guilty of contributory negligence inasmuch as he was riding on the pillion of the motor cycle with two other persons and (ii) that the employment and income of the deceased were not satisfactorily established.

7. On the first ground, the High Court held that though the motor cycle in which the deceased victim was riding was hit by the speeding car from behind, the deceased was also guilty of contributory negligence, as he was riding a motor cycle with two other persons. Therefore, the High Court came to the conclusion that an amount equivalent to 10% has to be deducted towards contributory negligence.

We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every 5 years, that is M­17 for 26 to 30 years, M­16 to 31 to 35 years, M­15 for 36 to 40 years, M­14 for 41 to 45 years and M­13 for 46 to 50 years, then reduced by 2 units for every 5  years, i.e., M­11 for 51 to 55 years, M­9 for 56 to 60 years, M­7 for 61 to 65 years, M­5 for 66 to 70 years.”

24. What was ultimately recommended in Sarla Verma, as seen from para 40 of the judgment, was a multiplier, arrived at by juxtaposing Susamma Thomas, Trilok Chandra and Charlie6 with the multiplier mentioned in the Second Schedule.

25. However when Reshma Kumari v. Madan Mohan came up for hearing before a two member Bench, the Bench thought that the question whether the multiplier specified in the second schedule should be taken to be a guide for calculation of the amount of compensation in a case falling under section 166, needed to be decided by a larger bench, especially in the light of the defects pointed out in Trilok Chandra in the Second Schedule. The three member Bench extensively considered Trilok Chandra and the subsequent decisions and approved the Table provided in Sarla Verma. It was held in para 37 of the report in Reshma Kumari that the wide variations in the selection of multiplier in fatal accident cases can be avoided if Sarla Verma is followed.

26. In Munna Lal Jain, which is also by a bench of three Hon’ble judges, the Court observed in para 11 as follows:

“ Whether the multiplier should depend on the age of the dependents or that of the deceased has been hanging fire for sometime: but that has been given a quietus by another three judge bench in Reshma Kumari. It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased, but as far as that of dependents is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average etc is to be taken.”

27. In the light of the above observations, there was no room for any confusion and the High Court appears to have imagined a conflict between Trilok Chandra on the one hand and the subsequent decisions on the other hand.

28. It may be true that an accident victim may leave a 90 year old mother as the only dependent. It is in such cases that one may possibly attempt to resurrect the principle raised in Trilok Chandra. But as on date, Munna Lal Jain, which is of a larger Bench, binds us especially in a case of this nature.

29. Thus, we find that the High Court committed a serious error (i) in holding the victim guilty of contributory negligence (ii) in rejecting ii) in rejecting the evidence of PW­2 with regard to the employment and monthly income of the deceased and (ii) in applying the multiplier of 14 instead of 18. Therefore, the appeal is allowed and the impugned order of the High Court is set aside. The award of the Tribunal shall stand restored. There shall be no order as to costs.