Ram Naresh Sharma and anr. Vs. Kishanlal and ors. - 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.] - that can be taken as a good guide to determine the question of compensation in the case of death of a child.d.m. dharmadhikari, j.1. in this appeal, filed by the parents of deceased satyendra kumar sharma, aged 9 years, who died in a motor accident on 7.8.1987, the only prayer made is for enhancement of the amount of compensation awarded by the first motor accidents claims tribunal, gwalior, vide award dated 31.1.1992, in the sum of rs. 35,000/-only.2. the learned counsel appearing for the appellants submits that this is a case of death of a child and under the motor vehicles act, 1988, brought into force from 1.7.1989, a minimum amount of compensation, even based on 'no fault' of the driver or owner of the vehicle, is fixed at rs. 50,000/-. he, therefore, requested that the amount of compensation at least in the sum of rs. 50,000/- be awarded when, admittedly, the owner has been found at fault in this case. the learned counsel appearing for respondent no. 4, in reply, submits that no compensation based on 1988 act can be claimed in this case as the accident took place on 7.8.1987, i.e., prior to the coming into force of the new act.3. having considered the arguments and circumstances of the case and the evidence on record, we are of the opinion that the amount of compensation in this case is liable to be enhanced to make it in all rs. 50,000/-. in the case of death of a child, earlier there are cases giving a lump sum compensation between rs. 30,000/-and rs. 35,000/-. there are, however, other cases which have been brought to our notice. the learned counsel appearing for the appellants relied on saraswati bai v. damodar prasad 1987 acj 501 (mp), where, in a case of death of a child in an accident prior to 1988, compensation in the sum of rs. 50,000/- has been awarded. there can be no hard and fast formula with regard to award of compensation in the case of death of a child. the only settled principle is that the figure should be conventional. under the 1988 act, the minimum compensation fixed is rs. 50,000/-for death. that can be taken as a good guide to determine the question of compensation in the case of death of a child.4. for the reasons aforesaid, we allow this appeal and enhance the amount of compensation. the amount of compensation is enhanced to rs. 50,000/- in all. the enhanced amount shall carry interest at the rate of 12 per cent per annum from the date of claim. [see also our decision in new india assurance co. ltd. v. bafatbai 1996 acj 336 mp)]. in the circumstances, we, however, leave the parties to bear their own costs.