Rajasthan State Road Transport Corporation vs Smt. Kamlesh Bai And Ors

Aforesaid three miscellaneous appeals have been filed by the appellant Rajasthan State Road Transport Corporation against the judgment and award dated 18.12.2017 passed by the Motor Accident Claims Tribunal No.2, Kota (referred to as "the tribunal"), whereby the tribunal awarded Rs.8,24,730/-, Rs.3,63,140/- and Rs.8,49,730/- respectively as compensation to the respondentsclaimants.

Since these appeals are directed against the same judgment and award, therefore, they are being decided by this common judgment.

Learned counsel for the appellant-Corporation has submitted that the driver of the bus was not negligent. The rider of the motorcycle was riding the said motorcycle alongwith two other pillion riders without wearing helmets and thus, violating Section 128 of the Motor Vehicles Act, 1988. Learned counsel for the appellant-Corporation has relied on the judgment given in the case of United India Insurance Co. Ltd. Vs. K. Anjaiah and Ors. reported in 2004 (4) ALD 444 to contend that there was contributory negligence on part of the deceased as well.

On the other hand, learned counsel for the respondents has supported the judgment passed by the tribunal and has submitted that there is no evidence on record which proves that the accident occurred due to the negligence of the deceased. Mere fact that three persons were sitting on the motor-cycle and that too without wearing helmets does not lead to the inference of negligence.

I have considered the submissions made by the learned counsel for the appellant and perused the material available on record.

The claim-petitions were filed by the claimants praying for compensation on account of deaths of Manoj Kumar Nayak, Hariom & Pooranmal in a motor vehicle accident which occurred on 30.05.2012.

The appellant-Corporation submitted reply to the claim petitions and denied its liability mainly on the ground that no negligence could be attributed to the driver of the bus.

In the present case, there is no evidence on record that the accident had occurred due to the negligence of the deceased. On the contrary, it is proved that accident had occurred due to the rash and negligent driving of the bus driver. Indisputably, three persons were sitting on the motorcycle at the time of accident, out of which, one was sitting as its rider and the remaining two were pillion riders. All these three were not wearing helmets also. Apart from aforesaid two acts, there is no evidence to come to the conclusion that they did any act or omission leading to happening of this accident and which might have otherwise materially contributed to its happening. Mere fact that three persons were on the two wheeler and that too without wearing helmets does not lead to the inference of negligence, much less contributory negligence. Therefore, the following observation of the learned tribunal are based on correct appreciation of the evidence on record:-

"प्रार्थीगण के ओर से प्रस्तुत साक्षीयान से जिरह के दौरान वाहन बस नंबर आर.जे. 20-पी.ए.-0403 के लापरवाहीपूर्ण ढंग से चालन संबंधी कथनों का कोई खण्डन जिरह के दौरान नही कराया जा सका है। पत्रावली पर उपलब्ध नक्षा मौका प्रदर्श 6 के अवलोकन के आधार पर यह प्रमाणित होता है कि बस को जालिमपुरा की तरफ घुमाते समय अपनी सही दिशा में आ रहे मोटर साईकिल सवार व्यक्तियों को राजस्थान रोडवेज की बस नंबर आर.जे20-पी.ए.-0403 के चालक द्वारा एक्स स्थान पर टककर मारी गई थी। उक्त नक्षा मौका के अवलोकन के आधार पर यह भी स्पष्ट होता है कि बस को दायीं तरफ घुमाते समय बस चालक के यह अपेक्षा थी कि वह बस को धीमी गति से चलाता, किन्तु एक्स स्थान पर टककर के बावजूद भी काफी दूर तक एक्स-1 स्थान तक मोटर साईकिल चालकों को घसीटकर ले जाना अपने आप में रोडवेज बस की तेजगति व लापरवाहीपूर्ण चालन के बिन्दु को प्रकट करने वाली है।"

In Promod Kumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and Ors reported in (2002) 6 SCC 455, the meaning of "Contributory Negligence" as distinct from the "Negligence" has been very succinctly by the Hon'ble Apex court in the following words:

"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'."

Answering the question as to whether the act of riding a motor-cycle carrying two pillion riders in violation of Section 128 of the Act, per se, amount to contributory negligence by a motorcyclist or pillion rider, the Madhya Pradash High Court held that violation of Section 128 of the Act by a motor-cyclist does not have a presumption of contributory negligence on his part and breach of Section 128 must have causal connection with the damage caused to pillion rider. The relevant observation of the Court are as under:-

"13.Thus, we are of the considered opinion that if the damage in the accident has not been cause partly on account of violation of Section 128 of the Act by the pillion rider of the motor cycle, the pillion rider is not guilty of contributory negligence. Similarly, if the damage suffered by the pillion rider has not been caused partly on account of violation of Section 128 of the Act by the driver, the pillion rider cannot put up a plea of composite negligence by the driver. In other words, if breach of Section 128 of the Act, does not have a causal connection with the damage caused to the pillion rider, such breach would not amount to contributory negligence on the part of the pillion rider of the motor cycle or composite negligence on the part of the driver of the motor cycle.

Accordingly, our answers to the questions referred to us are:

(1) Violation of Section 128 of the Act, per se, by a motor cyclist does not raise a presumption of contributory negligence on his part;

(2) similarly, violation of Section 128 of the Act per se does not amount to contributory negligence on the part of the pillion riders.

(3) A pillion rider cannot put up a plea of composite negligence by the driver of the motor cycle, if the driver only violates Section 128 of the Act."

In view of the above discussion, all three appeals filed by the appellant-RSRTC are liable to be dismissed and are accordingly dismissed.