Oriental Insurance Co., Ltd. vs Johnson

Mr. S.M. Subramaniam, J. - The present Civil Miscellaneous Appeals are filed against the order of the Motor Accident Claims Tribunal, Principal Sub Judge, Tirunelveli passed in M.C.O.P. Nos. 96, 97 and 80 of 2006.

The accident took place on 14.12.2005 at about 12.15 p.m., at Thakkarai to Chithirankodu main road near Thamaraithottam. It is a case of grievous injuries most specifically fractures, laceration and multiple injuries all over the body.

The motor accident claims Tribunal considered the facts and circumstances of the case and passed an award granting Rs. 1,04,000/-, 95,700/- and Rs. 74,000/- respectively. Three separate appeals are filed against the award of the Tribunal passed in three claim petitions.

In view of the fact the common order was passed in respect of the same accident, the present appeals are taken up together and common order is passed.

The main contention raised by the learned counsel for the appellant is that the Tribunal failed to consider the ground that there is a contributory negligence on the part of the claimants because three persons were travelling in a two wheeler, which is against the statute and therefore, 20% of the contributory negligence to be fixed as per the orders of the Division Bench of this Court in C.M.A. No. 1142 of 2008, dated 03.04.2009. The Tribunal also categorically made a finding in the award that three persons were travelling in one motorcycle and such a statutory violation has not been taken into account while passing the award.

As per the Rules, two persons alone can be travelled in the two wheeler and by allowing three persons in a motor cycle or any other two wheeler, undoubtedly such action of an individual would become illegal and unauthorised. The claimants had committed contributory negligence and accordingly 20% of contributory negligence is to be fixed on the claimants while passing the award of compensation.

The common practise of drivers carrying more than one person in two wheeler are to be deprecated and two wheeler is meant for a driver and a pillion rider alone and no more passengers. Further, it is the duty of the traffic regulating authorities to take strict action against such persons in this regard. The drivers, who are driving the two wheeler are not valuing their lives or valuing their lives so cheaply; that they are willing to take the risk of death or grievous injuries. If they die they leave a family which suffers or if they are hopelessly injured, they may become like vegetables and be a burden on the surviving family. Either way this risk is not worth taking. What is the duty of cyclists who turn casually, pedestrians who ignore pedestrian crossing and do gymnastics on the median. If such persons lost their lives or injured, are the four wheeler drivers always to blame. With the increase of motor vehicles, accidents have also increased. In consonance with the social philosophy behind the provisions, we have legal pronouncements which say that the liability of the insurer is not purely and simply a tortious liability. This is the spirit with which Section 163-A has been acted. But every user of the road from a pedestrian to a heavy vehicle driver owes a duty of care and caution. Recently the police of Union Territory of Puducherry rewarded persons followed traffic rules. Such efforts deserve to be congratulated it is useful to site the following paragraphs in the case of Managing Director, Tamil Nadu State Transport Corporation (Coimbatore Division I) Limited, Coimbatore v. Abdul Salam reported in (2003) 1 M.L.J. 489 passed in C.M.A. No. 8 of 2003, dated 29.01.2003:-

"11. We are concerned as to whether such action of the individuals is permissible under law. The motor cycle and any other two wheelers are meant only for two persons, the rider and a pillion rider. If more than two persons are travelling in a motor cycle or any other two wheeler, undoubtedly such action of the individual would become illegal and unauthorised. It is an awful sight when we come across three persons travelling in a motor cycle.

They are sitting in such a cramped manner that the rider of the motor cycle almost sitting on the petrol tank or at the front edge of the seat. When he was sitting in such a position, naturally because of the restricted movement of his legs, he cannot have the complete control over the brake. The movements of his hand also so restricted. When that be so, this Court is of the opinion that definitely the rider of the two wheeler cannot have full control over the vehicle.

Apart from that, when three persons are travelling in a motor cycle, two as pillion riders, any unusual movement of the pillion riders would make the rider of the motor cycle to loose his control over the vehicle. Even though such travelling of three persons in a motor cycle is contrary to the statute, still the enforcement wing do not care to take note of the same and failed to take action against their illegal action. Virtually because of the failure on the part of the enrocement wing, such travelling of three persons in the two wheelers have become a regular sight.

Even though the highway patrolling is available but it is a rare sight to see a highway patrolling vehicle. The travelling of three persons has become rampant in the mofussils and in the city; especially among the youngsters like the college students. When that be the case, the enforcing authority is expected to enforce the statute with some strictness to avoid any untoward incident. There is no purpose in conducting the Road Safety Week without infusing the road sense in compliance of the Rules and Regulations of the statute in the minds of those who are using the vehicles.

When three persons travelled in a motor cycle which is meant for two persons, this Court is of the view the conduct of the persons who travelled in such a manner are liable for contributory negligence; especially when their action is contrary to the statute".

The accident in this case took place in the year 2004 and 12 years lapsed and at the time of accident two pillion riders along with the driver were travelling in a two wheeler and therefore, the decree of contributory negligence can be fixed at 20% on the part of the claimants/injured.

Accordingly, the civil miscellaneous appeal is partly allowed and the appellant is directed to pay 80% of the total award amount with accrued interest and costs proportionately to the claimants forthwith.

No costs. Consequently, connected miscellaneous petitions are also dismissed.

The learned counsel for the appellant represents that the entire award amount was deposited. The first respondent/claimants are permitted to withdraw the entire award amount with accrued interest and costs and it is needless to state that the balance amount so deposited shall be withdrawn by the appellant/Insurance Company.