Phool Bai and ors. Vs. South Eastern Coalfields Ltd. and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]sections 128 & 168: [a.k. patnaik, c.j. & a.m. sapre & s.k. seth, jj] contributory negligence on part of motorcyclist pillion rider driver of motor cycle carrying two pillion riders in violation of section 128 held, a plain reading of section 128 of the act 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 mentions the safety devices to be provided while manufacturing a motor cycle. these provisions obviously are safety measures for the drivers and pillion riders and breach of such safety measures may amount to negligence but such negligence will not amount to contributory negligence on the part of the pillion rider or composite 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. if the damage in the accident has not been caused 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. therefore, violation of section 128 of the act, per se, by a motor cyclist does not rise a presumption of contributory negligence on his part. similarly, violation of section 128 of the act per se does not amount to contributory negligence on the part of the pillion riders. 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. [national insurance co. ltd., v smt uma tiwari 2007(1) manisa 204 (m.p.) (d.b) & kanti devi sikarwar & ors v om prakash & ors. 2007 (1) mpwn 88 (d.b) overruled.] - on deposit the amount shall be disbursed to the claimants keeping in mind the well settled guidelines laid down by the apex court.usha shukla, j.1. the claimants are the widow and five children of deceased rasai who died in an automobile accident on 6.11.1979. respondent no. 1 was the owner, respondent no. 2 was the driver and respondent no. 3 was the insurer of the offending vehicle.2. the tribunal found negligence of the driver proved. it also held that claimants were dependent on the income of the deceased. but it awarded a lump sum of rs. 20,000 as compensation as against a claim of rs. 5,40,000. the adequacy of this award is challenged in this appeal.3. deceased aged 45 years was in business of fish and was earning rs. 60 per day as per the statement of his widow phool bai. the income of the deceased may be taken to be rs. 1,500 per month on the basis of the evidence on record. he had a wife and five minor children to support. the dependency of the claimants is, therefore, taken to be rs. 1,000, i.e., rs. 12,000 per annum. to this a multiplier of 13 is applied; the compensation comes to rs. 1,56,000. to this a sum of rs. 2,000 is added towards funeral expenses and rs. 5,000 towards loss of consortium and rs. 2,500 as loss to estate, the total compensation comes to rs. 1,65,500 which, in the circumstances of the case would be just and proper. thus the appellants are entitled to get rs. 1,65,500 with interest at the rate of 12 per cent per annum from the date of application till realisation.4. respondents are directed to deposit the amount less the amount already deposited within a period of two months from the date of supply of certified copy of this order failing which the amount shall carry interest at the rate of 15 per cent per annum. on deposit the amount shall be disbursed to the claimants keeping in mind the well settled guidelines laid down by the apex court.5. the award of the tribunal shall be substituted as indicated hereinabove. counsel's fee rs. 1,000, if pre-certified.