Dipak Misra, J.
In this appeal preferred u/s 173 of the Motor Vehicles Act, 1988 (for brevity the Act''), the assail is to the award dated 13-10-2001 passed by the Motor Accident Claims Tribunal, Tikamgarh (in short the tribunal'') in MCC No. 18/1999.
The claimants-appellants (hereinafter referred to the claimants'') initiated an action u/s 166 of the Act for grant of compensation of Rs. 60,00,000/- for the death of Ramswarup and Dhiru who died in a vehicular accident which occurred on 10-4-1999 at 7 p.m. when the motorcycle being driven by Ramswarup was dashed by a mini-truck bearing registration No. MP-15/J-0568 at Nivari Sandri road being rashly and negligently driven by the respondent No. 2, as a consequence of which Ramswarup and his son Dhiru breathed their last on the spot. It was put forth before the tribunal that the deceased Ramswarup was earning Rs. 5,000/- per month and his son Dhiru was 15 years of age and prosecuting his study in class IX. The claimants, who are the wife and the minor daughter of Ramswarup put forth the claim on various heads, as stated hereinbefore.
The owner, driver and insurer, the respondents before the tribunal, entered contest. It was put forth by the owner and the driver that the vehicle was insured with the National Insurance Company Ltd., the third respondent and, therefore, they were entitled to be indemnified by the insurer. It was also contended by them that Ramswarup himself was negligent as he was driving the motorcycle in a rash and negligent manner and further did not possess the driving licence.
The insurer contested the claim contending, inter alia, that the driver of the mini-truck did not have the driving licence of heavy motor vehicle but had the driving licence of light motor vehicle and hence, there was breach of policy for which the insurer deserved to be absolved. It was also put forth that the drivers of both the vehicles were involved in causation of the accident and, therefore, the insurer was not liable to indemnify.
On the pleadings brought on record, the tribunal framed as many as five issues and came to hold that the accident had occurred due to composite negligence of both the vehicles; that the deceased had a role to play in causing of the accident; that the vehicle of the deceased was not insured; that there had been no breach of the insurance policy and hence, the insurer of the mini-truck was liable to indemnify the owner; that the deceased motorcyclist did not have a driving licence as a consequence of which it would amount to contributory negligence and it could be fixed at 50%; and that for the death of the deceased Ramswarup, the compensation would be Rs. 1,60,000/- and Rs. 1,50,000/- for the death of Dhiru; and that after deduction of 50%, the claimants would be entitled to get compensation of Rs. 75,000/- towards the death of Dhiru and Rs. 80,000/- for the death of Ramswarup: and that the insurer shall make good the award by paying the amount with 9% interest from the date of presentation of the application till the date of realisation of the amount.
We have heard Mr. M. K. Sharma, learned Counsel for the appellants, and Mr. Sanjay Agrawal, learned Counsel for the insurer.
At the very outset, we may state with profit that the factum of accident, the negligence on the part of the driver of the offending vehicle, the mini-truck and the liability of the insurer to pay the compensation are beyond dispute for the simon pure reason that there is no appeal or cross-objection at the instance of the insurer.
The question that emerges for consideration is whether the tribunal is justified in determining the income and contribution of the deceased persons to the family and whether the tribunal is justified in reducing the quantum awarded by 50% on the ground that the deceased Ramswarup who was driving the motor-cycle did not have the licence.
It is submitted by Mr. Sharma, learned Counsel for the claimants, that the tribunal has grossly erred in coming to hold that the motorcyclist did not have the driving licence on the ground that it was not found along with his dead body. It is urged by him that the tribunal has misdirected itself in not appreciating the factual matrix that the respondents had not adduced any evidence with regard to negligence on the part of the deceased except stating that he was not having the driving licence and that by itself would not make it a case of contributory negligence. The learned Counsel further submitted that the grant of compensation for the death of Ramswarup and Dhiru is absolutely low. It is urged by him that the determination of the income of the deceased Ramswarup is absolutely erroneous and the application of the multiplier is totally defective.
Mr. Sanjay Agrawal, learned Counsel for the respondent insurer, submitted that the onus is cast on the legal representatives of the deceased Ramswarup to bring on record the driving licence, if any, and the same having not been done, the tribunal has rightly presumed that he did not have a licence. It is canvassed by him that in the absence of the licence the deceased could not have driven the vehicle and that amounts to statutory violation which eventually entails in contributory negligence though the tribunal at times has used the word composite negligence which is not correct. Learned Counsel for the insurer has also supported the quantum determined by the tribunal.
First we shall deal with the issue with regard to possession of driving licence by the motorcyclist, Ramswarup and the concept of contributory negligence in the obtaining factual matrix. On a perusal of the award passed by the tribunal, it is perceptible that the tribunal has recorded a finding that Ramswarup did not have the licence nor was the motor-cycle insured. On that ground, the tribunal has held that the deceased has contributed 50% in causation of the accident. On a perusal of the evidence brought on record, it is clear that the offending vehicle, the mini-truck, was coming in a great speed with one head light and dashed against the motor-cycle. No evidence has been adduced to establish that the driver of the motor-cycle had acted in any manner due to which the accident was caused. Thus, in essence, there was absolutely no negligence on the part of the motorcyclist.
The question that emanates for consideration is whether the violation of statutory requirement per se would tantamount to contributory negligence. Section 3 of the Act that occurs in Chapter II deals with licensing of drivers of motor vehicles. The said provision reads as under:
3. Necessity for driving licence.- (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor-cab or Motor Cycle hired for his own use or rented under any scheme made under Sub-section (2) of Section 75 unless his driving licence specifically entitles him so to do.
(2) The conditions subject to which Sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
On a perusal of the aforesaid provision, it is quite clear that the statute prohibits a person to drive a motor vehicle in any public place unless he holds an effective driving licence issued to him to drive a vehicle. The deceased Ramswarup who was driving the vehicle, as the tribunal has come to hold, did not possess the driving licence. Submission of Mr. Sharma, learned Counsel for the claimants, is that the tribunal has drawn an inference that the deceased had no driving licence on the base that the licence was not found with the dead body and the claimants did not produce the licence. It is put forth by him that it is extremely difficult on the part of a rustic woman to produce the licence. Per contra, learned Counsel for the insurer, would submit that efforts should have been made to produce duplicate licence but the same has not been done. Conceding to the position that the deceased did not have the licence, the question that emerges for consideration is whether breach of the said provision per se, would amount to contributory negligence.
This Court in
The question of contributory negligence arises when there has been some act or omission on the claimant''s part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as ''negligence''. Negligence ordinarily means breach of a legal duty to care, but when used in the expression ''contributory negligence'' it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an ''author of his own wrong''.
It is worth noting that the Full Bench referred to the decision in
Where an accident is due to negligence of both parties, substantially there would be contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other''s negligence. Whichever party could have avoided the consequence of other''s would be liable for the accident. If a person''s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused could not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328).
After placing reliance on the aforesaid decisions, the Full Bench expressed the view as under:
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 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.
In this context, we may refer with profit to the decision rendered in Oconnell v. Jackson (1972) 1 QB 270 : (1971) 3 WLR 463 (See Ratanlal and Dhirajlal, The Law of Torts revised by Justice G. P. Singh) wherein a motorcyclist involved in an accident had suffered a head injury as he did not wear a crash helmet. It was held that omission to wear a helmet is not negligence contributing to the accident but only to the damage suffered in the accident. In that case the damages were reduced by fifteen per cent.
In the said book it has been stated that if a motorcyclist drives without a driving licence and is run down by a motor-truck the mere fact that the motorcyclist had no driving licence will not give rise to a plea of contributory negligence. It cannot be argued that had the motorcyclist obeyed the law by refraining from driving without a licence, he would not have been at the place of the accident and so he is guilty of contributory negligence, for the same does not establish a real casual relationship between the un-lawful or negligent conduct and the injury.
In the said book, a reference has been made to an Australian case in Gent Driver v. Neville (1953) QSR 1 wherein the plaintiff rode on the pillion of a motor-cycle knowing that the lights were defective. The motorcycle collided with an oncoming car not because the lights were defective but because the motor-cyclist was going on the wrong side and was not keeping a proper look-out In a claim preferred against the motorcyclist, the plaintiff''s conduct in accepting a ride, on the pillion knowing the lights to be defective was not held to be contributory negligence as the accident was unrelated to the risk involved in this conduct.
From, the aforesaid enunciation of law, there is no shadow of doubt that there has to be casual relationship between violation and accident caused. There has to be some act done by the person concerned in causing the, accident. The commission or omission must have some nexus with the accident. In the case at hand, nothing has been brought on record that the accident had occurred due to some act caused by the motorcyclist as he was driving the vehicle without licence. His presence alone at the place of accident would not tantamount to contributory negligence. The statutory violation per se would not usher in the concept of contributory negligence. Therefore, we dislodge and unsettle the finding of the tribunal on that score.
Presently, we shall dwell upon the justifiability of the quantum of award by the tribunal. As is perceivable from the award the tribunal has applied the concept of notional income in respect of both the cases. As far as Ramswaroop is concerned regard being had to his age the multiplier of 16 has been applied and the tribunal has applied the multiplier of 15 in the case of deceased Dheeru, the son of Ramswaroop. Ramswaroop, as is material brought on record would show was the bread winner of the family. He, as pleaded, was maintaining the family and it has come out in evidence that he was a goldsmith and his son was assisting him. There is no cavil over the fact that he was aged about 40 years and sustaining the family. The concept of just compensation has its own signification. While quantifying the compensation many a factor are taken into consideration. The term ''just'' casts an obligation on the Court of law to award adequate and proper compensation.
The grant of compensation cannot be a windfall. Simultaneously, it cannot be so meagre to defeat the basic and fundamental conception of just compensation. In the case at hand, there is evidence that the deceased Ramswaroop was working as a goldsmith. There is ample evidence on record that he was sustaining the family. Regard being had to the totality of circumstances we have no scintilla of doubt in our mind that he must be earning Rs. 2,500/- per month, thereby Rs. 30,000/- per year. After deducting 1/3rd amount towards expenses on self the contribution to the family would be Rs. 20,000/- per year. The multiplier of 16 has to be applied keeping in view the age factor. Thus, the compensation comes to Rs. 20,000/- x 16 = Rs. 3,20,000/-. To the aforesaid sum we shall add a further sum of Rs. 15,000/- towards loss of consortium, loss of estate and funeral expenses. Ergo, the total compensation comes to Rs. 3,35,000/-(Rupees Three lacs thirty five thousand
As far as the compensation granted for the death of Dheeru is concerned the Tribunal has applied the multiplier of 15 and taken into account the notional income. The mother is aged about 38 years. It is the age of the mother which would govern the multiplier. There is evidence that Dheeru was assisting his father in the shop and no exception can be taken to the said evidence. In the aforesaid circumstances he would be earning at least Rs. 18,000/- per year. Thereby, his yearly contribution would be Rs. 12,000/-, after deducting l/3rd towards expenses on himself. The multiplier of 16 would be applicable. Thus, the total compensation come to Rs. 12,000 x 16 = Rs. 1,92,000/-. To the said sum we are inclined to add Rs. 5,000/- towards loss of estate and funeral expenses. Thus, the amount, in toto. comes to Rs. 1,97,000/-.
Thus, the amount of compensation as far as Ramswaroop is concerned is enhanced to Rs. 3,35,000/- and compensation in respect of Dheeru is concerned the same is enhanced to Rs. 1,97,000/-. The differential sum shall carry interest at the rate of 6% per annum from the date of presentation of the application till the date of realization.
Consequently, the appeal is allowed in part and the award passed by the tribunal is modified to the extent indicated above. There shall be no order as to costs.
