Binny Sharma and Others vs Om Prakash and Others

Shailesh Kumar Sinha, J.—Heard learned counsel for the appellants as also the Respondent- Insurance Company. No one appears on behalf of the Private Respondents. Both the appeals are directed against the order/award dated 9th of May 2008 passed by the Motor Vehicle Accident Claims Tribunal, Patna (hereinafter referred to as "Tribunal) in Claim Case Nos. 234 of 2004 and 235 of 2004, as such, they are being disposed of by a common order.

The brief facts are that a Motorcycle bearing Registration No. BR IV 7347 was being driven by Dharmendra Kumar, husband of Binny Sharma, the claimant of Claim Case No. 234 of 2004. The pillion rider of the said motorcycle was Singheshwar Sharma, father of Dharmendra Kumar. The said motorcycle while going on the Hilsa Road, District Patna from North to South met an accident on the said road with Vikram Tempo (Auto Rickshaw) bearing Registration No. BR AP 0659 coming from South to North. The accident led to the death of Dharmendra Kumar on the spot and his father namely, Singheshwar Sharma sustained severe injury to which he succumbed while going to the hospital. The First Information Report was lodged by the father-in-law of the deceased Dharmendra Kumar, namely, Jogendra Sharma vide Shahjehan P.S. Case No. 33 of 2004 for the offence under Sections 279, 338 and 304A of the Indian Penal Code against the driver of the Tempo namely, Om Prakash. The police after investigation submitted a charge-sheet. The post-mortem of both father and son was done in Nalanda Medical College Hospital, Patna.

The Claim Case No. 234 of 2005 was filed by Binny Sharma, the widow of Dharmendra Kumar along with the mother of deceased Dharmendra Kumar as also minors of the deceased. The another claim case vide Claim Case No. 235 of 2004 was filed by Chinta Devi, the widow of the pillion rider, namely Singeshwar Sharma. Both the claims were filed before the Tribunal. The Tribunal upon considering the oral and documentary evidence on the record, allowed a claim of Rs. 8,49,524/- with interest at the rate of 7.5 per cent. per annum from the date of filing of the application till payment in respect of the death of Dharmendra Kumar vide Claim Case No. 234 of 2004 and allowed the claim of Rs. 6,47,720/- with interest at the rate of 7.5 per cent per annum from the date of application till payment with respect to the death of pillion rider, namely, Singeshwar Sharma taking into consideration the respective annual income and the dependency as well as the applicable multiplier prescribed under the schedule - II of Motor Vehicles Act 1988. The Tribunal allowing the claim as aforesaid, however, deducted 50 per cent of the claim on the ground that since motorcycle and the tempo collided head-on (AAMNE - SAMNE) and as such, the deceased Dharmendra Kumar, the driver of the motorcycle also contributed negligently which led to the accident and as such, Tribunal deducted the 50 per cent. claim amount, however, for deducting the claim amount by 50 per cent allowed to the pillion rider namely, Singheshwar Sharma vide Claim Case No. 235 of 2004 did not assign any reason whatsoever for such deduction.

The appellants, on being aggrieved by aforesaid deduction of 50 per cent of the claim amount, preferred the above two appeals against the respective awards of the tribunal.

Mr. Ajay Kumar, learned counsel for the appellant assisted by the Counsel, Shambhu Sharan Singh, submits that the Tribunal merely on finding that the motorcycle as well as tempo met with head on collision held that there was contributory negligence on the part of the Dharmendra Kumar, the driver of the motorcycle. It was further submitted that the learned Tribunal did not consider the evidence of the eye witnesses namely, Satish Kumar and Ram Ishwar Sharma who were the applicant witness Nos. 3 and 4 respectively who had categorically stated that motorcycle in question, was going from North to South and the Tempo was coming from South to North. The witness also stated that the motorcycle in question was on the eastern side of the road and the tempo coming from the south side hit the motorcycle from the front on the eastern side of the road from which side the motorcycle was going.

In view of the aforesaid evidence of the applicant witness Nos. 3 and 4 and also evidence of the applicant witness No. 5 that the motorcycle was on the eastern side of the road as also in absence of any evidence on the record that the motorcycle was being driven negligently or in the rash manner, the tribunal was not justified in holding that there was contributory negligence on the part of the driver of the motorcycle. It is submitted on behalf of appellant that the Tribunal failed to consider the evidence of the widow of the deceased (AW-2) that her husband had a license to drive the motorcycle. However, the Insurance Company in its written statement had stated that the deceased had no license. Although neither evidence was brought on the record nor evidence of the AW-1 was cross examined on the question. The evidence of AW-1 is that her husband used to keep the license with him though the same was not found along with the other papers from his person after the accident on the spot was not controverted.

Besides the above, it is further submitted that merely if the driver was not having the licence, it cannot be said that he was contributory negligent. The driver may have committed the violation of the relevant provisions of the Motor Vehicles Act but in absence of the license, it cannot be said that there was a contributory negligence on his part. In this connection, reliance has been placed on a decision reported in Sudhir Kumar Rana Vs. Surinder Singh and Others, . Learned Counsel accordingly, submits that part of the impugned order/award whereby the 50 percent of the claim amount is deducted, deserves to be set aside.

Mr. Mukteshwar Prasad Singh, learned counsel for the Insurance Company supports the impugned order and submits that the tribunal was right in holding the contributory negligence on the part of the deceased motorcycle driver. The motor-cycle met with head on collision with the Vikram Tempo and since the accident was head on collision between the motorcycle and the tempo, the driver of the motorcycle was negligent in contributing to the accident. Learned counsel relied upon the decision in the case o Budhan Thakur @ Mithilesh Thakur Vs. The State of Bihar, as also decision in the case of The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Another, . Mr. Singh in alternative submits that in case it is found that deduction of 50 per cent from the compensation in such case court may reduce to a reasonable limit relying upon the decision of the Apex Court in the case of A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, .

Upon the submissions made by the learned counsel on behalf of the respective parties, it would appear that the controversy is mainly with respect to the deduction of the compensation amount by 50 per cent except for that the rest of the award is not as-sailed by any of the parties. The Tribunal reduced the 50 per cent of the compensation allowed on the ground of contributory negligence on the part of the driver of the motorcycle in question namely, Dharmendra Kumar for the reason that the motorcycle and the tempo met head on collision and secondly, applicant did not produce the driving license of the motorcycle driver. As regards the second ground, the contention of the learned counsel for the appellant is that the applicant witness namely. Binny Sharma, widow of the motorcycle driver has deposed that her husband was possessing the driving license but the same could not be located after the accident from the spot. The respondent - Insurance Company except for stating in the written statement that the driver of the motorcycle was not having the license as the applicant did not produce the same, neither any material has been produced nor the widow was cross-examined on this point. Besides the above, learned counsel for the appellants relied upon the decision of the Apex Court reported in Sudhir Kumar Rana Vs. Surinder Singh and Others, that in case driver has no license he may be guilty under certain provisions of the Motor Vehicles Act but on that account it cannot be said that he negligently contributed to the accident. The contention of the learned counsel for the appellants is well founded. Secondly, with regard to the second ground that both the vehicles met with head on collision and as such, the Tribunal inferred contributory negligence on the part of the driver of the motorcycle even on the admitted fact that the motorcycle was on the eastern side of the road, cannot be sustained. The head on collision is not in dispute. The Tribunal overlooked the evidence of the witnesses namely applicant witness Nos. 3, 4 and 5 who were eye witnesses and had stated in their evidence that motorcycle in question was on the eastern side of the road while going from North to South whereas the Tempo in question was coming from South to North and as such, the accident which took place on the eastern side of the road, in such a situation no contributory negligence could be attributed on the part of the motorcycle driver as he was on the extreme left of the road. The contention of the learned counsel for the Insurance Company that motorcycle driver ought to have taken some more precautionary measure to save from the accident in absence of any evidence and in the fact and circumstance, the same appears to be merely imaginary. Learned counsel for the respondent however submits that if the deduction of 50 per cent is not found reasonable but still some deduction is justified on account of the action of the driver of the motorcycle. In this regard, he relies upon the decision of the Apex Court reported in The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Another, and also in the case of A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, .

On perusal of the aforesaid two decisions, it would appear that the facts of the aforesaid two cases are quite different. In the former case, the cycle rider had to go on the right side and took a sudden turn from extreme left of the road to the right side of main road having high vehicular traffic for crossing the road while the bus was coming in high speed and he was met with an accident and in the later case, the accident was practically on the mid of the road where the Maruti Car and the bus hit with each other in toto whereas in the present case, it is not in dispute that the motorcycle was on the extreme left side of the road. In my opinion, the above decisions are of no help to the respondents and as such, in absence of any material on the record, moreso, the Tribunal did not consider the evidence of the applicant witness on the point that the motorcycle was on the left side of the road the deduction of 50 per cent of the compensation amount on the ground that the motorcycle driver had contributed which led to the accident could not be sustained. Moreover, there is absolutely no reason assigned by the Tribunal for reducing the compensation of the pillion rider, namely. Singheshwar Sharma.

In the result, in view of the discussions as above, in my opinion, any deduction from the compensation allowed by the court below is not justified both on facts and law. Accordingly, impugned award in both the appeals with respect to deducting the amount of compensation by 50 per cent is hereby set aside. Both the appeals are accordingly, allowed to the extent indicated above and entire compensation amount allowed by the court below, if not paid as yet, the same may be paid to the claimants within a period of three months from today with interest. No costs.