Afr High Court
Case Details
HARNEET KAUR Digitally signed by HARNEET KAUR Date: 2025.07.25 16:12:22 +0530 1 2025:CGHC:34658 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 9 of 2022 1 - Smt. Hathiyarin Nishad W/o Late Mahangu Nishad, Aged About 65 Years R/o. Village Sonbhattha, Post Salauni, Tahsil Khairagarh, District Rajnandgaon (Wrongly Mentioned As Durg) (C.G.) C/o. Harishchandra Sahu, School Chowk, Ward No. 52, Borsi Basti, Durg, District Durg Chhattisgarh. 2 - Ajay Jethuram Nishad, S/o Late Jethu Nishad, Aged About 6 Years Minor Through Natural Guardian Grandmother Smt. Hatharin Nishad Wd/o Late Mahgu Nishad (Appellant No.1), R/o. Village Sonbhattha, Post Salauni, Tahsil Khairagarh, District Rajnandgaon (Wrongly Mentioned As Durg) (C.G.) C/o. Harishchandra Sahu, School Chowk, Ward No. 52, Borsi Basti, Durg, District Durg Chhattisgarh. … Appellants versus 1 - Hitesh Kumar Sahu S/o Bhav Singh Sahu, Aged About 19 Years R/o. Village Mangata, Ward No.2, Police Station Somani, Rajnandgaon (C.G.) (Driver Of Offending Vehicle No. C G - 08, V – 8380). 2 2 - Pukhraj S/o Ramadhar Sinha, Aged About 35 Years R/o. Ward No.36, Dabaripara, Rajnandgaon Chhattisgarh (Owner Of Offending Vehicle No. C G - 08, V – 8380) 3 - The New India Insuranace Company Limited, Through - Branch Manager, Branch Office, Parakh Complex, Santarabadi, Near Ujala Bhawan, Durg Chhattisgarh (Insurance Of Offending Vehicle No. C G - 08, V – 8380) 4 - Katika Bai Nishad W/o Late Jethu Ram Nishad, Aged About 28 Years R/o. Village Mehru, Tahsil Ghumka, District Rajnandgaon Chhattisgarh 5 - Maheshwari Nishad D/o Late Jethu Ram Nishad, Aged About 13 Years Minor Through Natural Guardian Mother Katika Bai Nishad, R/o. Village Mehru, Tahsil Ghumka, District Rajnandgaon Chhattisgarh ... Respondents For Appellants
Legal Reasoning
“12. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most, it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194-C, inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motorcycle along with the driver and one more person on the 9 pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance. 14. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside. ” 10 12. Coming to the facts of the present case in light of the aforesaid principle of law enunciated by their Lordships of the Supreme Court in the matter of Mohammed Siddique (supra), it is quite vivid that mere fact that the deceased Jethuram Nishad was driving the motorcycle with more than one person sitting as pillion riders would not attract the doctrine of contributory negligence particularly when no such specific plea of contributory negligence on the part of the deceased has been raised either by respondent No. 1 (driver of the offending vehicle) and respondent No. 2 (owner of the offending vehicle) or by respondent No. 3 (Insurance Company) in their written statements filed before the Claims Tribunal. The only plea that has been taken by respondent No. 3 (Insurance Company) is that four persons were riding the motorcycle at the time of the accident whereas it ought to have taken the plea that on account of four persons riding in the motorcycle, the accident had occurred which resulted in the death of driver of the said motorcycle Jethuram Nishad which shows contributory negligence on the part of the deceased. As such, the plea of contributory negligence has neither been specifically raised nor established except pleading that deceased was driving the motorcycle in violation of Section 128 of the Act of 1988 and at the most, since deceased 11 Jethuram Nishad violated the provision contained under Section 128 of the Act of 1988 by carrying more than one persons as pillion riders on his motorcycle at the time of the accident inviting penalty under Section 194-C of the Act of 1988, however, mere breach of Section 128 of the Act of 1988 would not per se amount to contributory negligence in absence of specific plea of said negligence supported by legal evidence. Thus, the finding recorded by the Claims Tribunal holding deceased Jethuram Nishad guilty of contributory negligence and thereby, deducting 50% of the compensation amount is hereby set aside. Answer to Question No. 2 :- 13. The second point raised on behalf of the appellants and respondents No. 4 and 5 herein/claimants is that learned Claims Tribunal, having held that since the respondent No. 1 (driver of the offending motorcycle) did not have valid driving license on the date of the accident, therefore, absolved the respondent No. 3 (Insurance Company) from payment of compensation, though could have directed it to firstly pay the compensation amount to the claimants and then recover it from respondents No. 1 and 2 herein. 14. In the matter of Swaran Singh (supra), it has been held by the Supreme Court that the claimant should not be 12 allowed to suffer and run about to release the compensation awarded and that, it is in the fitness of things that the Insurance Company in such cases should first pay and then recover the amount. 15. In view of the aforesaid legal discussion, the finding recorded by the Claims Tribunal with regard to contributory negligence on the part of the deceased Jethuram Nishad is hereby set aside and the entire amount of compensation i.e. Rs. 15,82,000/- is awarded in favour of the claimants along with an interest of 8 % per annum from the date of filing of the claim petition i.e. 30/01/2020. Respondent No. 3 (Insurance Company) is directed to firstly pay the amount of compensation along with interest to the claimants within 45 days from the date of receipt of a copy of this order and thereafter, recover it from respondents No. 1 and 2 herein. 16. Accordingly, this appeal is allowed to the extent indicated herein-above leaving the parties to bear their own cost(s). Sd/- (Sanjay K. Agrawal) Judge Harneet
Arguments
: Mr. Praveen Dhurandhar, Advocate For Respondent No. 3 : Mr. Sudhir Agrawal, Advocate SB- Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 21.07 .2025 1. By way of this appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter, “the Act of 1988”), the appellants (claimants) have called in question the legality, validity and correctness of impugned award dated 30/01/2020 passed by learned 8th Additional Motor 3 Accident Claims Tribunal, Durg in Claim Case No. 566/2018 whereby it has been held that deceased Jethuram Nishad was also liable for contributory negligence and 50% of the compensation amount has been deducted and thereafter, compensation to the tune of Rs. 7,91,000/- has been awarded in favour of the claimants. 2. Facts of the case relevant for disposal of this appeal are that appellants No. 1 and 2 are mother and son of deceased Jethuram Nishad and respondents No. 4 and 5 are his wife and daughter. On 09/03/2018 at about 05:30 PM, deceased Jethuram Nishad was going to work in his motorcycle while his friend Uttam Patel (PW-2), his wife and child were sitting on the said motorcycle as pillion riders. At village Dhaneli, another motorcycle bearing Registration No. CG 08/V-8380 which was coming from Khairagarh, collided with their motorcycle on account of which, Jethuram Nishad died on the spot. It is the case of the claimants that on the date of the accident, deceased Jethuram Nishad was aged about 30 years and earned Rs. 10,000/- per month working as a Mason and since he was the sole earner in the family, a compensation to the tune of Rs. 31,95,000/- may be granted in their favour, which was opposed by respondents No. 2 stating that he had sold the offending motorcycle in favour of respondent 4 No. 1 and further opposed by respondent No. 3 (Insurance Company) stating that on the date of accident, respondent No. 1 did not have valid driving license, therefore, the Insurance Company is not liable for payment of compensation. None appeared on behalf of respondent No. 1 and ex-parte order was passed. 3. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that on the date of accident, on account of rash and negligent driving of respondent No. 1, deceased Jethuram Nishad sustained grievous injuries and died on the spot, however, further held that deceased was also guilty of contributory negligence to the extent of 50% and further holding that respondent No. 1 did not possess valid driving license on the date of the accident and was driving the offending motorcycle in violation of the terms of Insurance Policy, absolved respondent No. 3 (Insurance Company) from payment of compensation and held that respondents No. 1 and 2 herein are liable for payment of compensation to the tune of Rs. 7,91,000/- to appellants No. 1 and 2 and respondents No. 4 and 5 herein/claimants. 4. Learned counsel for the appellants would submit that the Claims Tribunal has erred in holding that deceased Jethuram Nishad was guilty of contributory negligence as 5 at the most, he can be held guilty for violation of Section 128 of the Act of 1988, however, it would not amount to contributory negligence in light of the decision of Supreme Court in the matter of Mohammed Siddique and Another v. National Insurance company Limited and Others1. He would further submit that since driver of the offending vehicle i.e. respondent No. 1 was not having valid driving license on the date of the accident, it has rightly been held by the Claims Tribunal that Insurance Company (respondent No. 3) is not liable for payment of compensation but it could have directed the Insurance Company (respondent No. 3) to firstly pay the compensation to the claimants and then recover it from respondents No. 1 and 2, as has been held by the Supreme Court in the matter of National Insurance Co. Ltd. v. Swaran Singh and Ors2. As such, the instant appeal be allowed and the impugned award be enhanced. 5. Per contra, learned counsel for respondent No. 3, would submit that Uttam Patel (PW-2), who was also sitting in the motorcycle as a pillion rider, himself has admitted that deceased Jethuram Nishad was driving the motorcycle and he along with his wife and child were sitting as pillion riders which caused negligence on their part, as such, 1 (2020) 3 SCC 57 2 (2004) 3 SCC 297 6 learned Claims Tribunal has rightly held deceased Jethuram Nishad to be guilty of contributory negligence and deducted the total sum of compensation to the extent of 50%. He would further submit that the Insurance Company (respondent No. 3) has rightly been absolved from the liability of payment of compensation to the claimants and the order of pay and recover would not be applicable in this case, as such, the instant appeal is liable to be dismissed. 6. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 7. The two short questions that arise for consideration in the present appeal are stated below :- (i) Whether learned Claims Tribunal was justified in holding deceased Jethuram Nishad guilty of contributory negligence and thereby, deducting 50% of the compensation amount ? (ii) Whether the direction of ‘pay and recover’ could have been given by the Claims Tribunal to the respondent No. 3 (Insurance Company) ? 7 Answer to Question No. 1 :- 8. Learned Claims Tribunal, while adjudicating the claim petition, relying upon the statement of Uttam Patel (PW-2), who was sitting as a pillion rider in the bike of deceased Jethuram Nishad, has recorded a finding in paragraphs 12 and 13 of the impugned judgment that since four persons were sitting on the bike of the deceased at the time of the accident, which is in violation of Section 128 of the Act of 1988, deceased Jethuram Nishad is also guilty of contributory negligence. 9. At this stage, it would be appropriate to notice the provision contained under Section 128 of the Act of 1988, which provides as under :- “128. Safety measures for drivers and pillion riders. - (1) No driver of a two-wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver’s seat with appropriate safety measures. (2) In addition to the safety measures mentioned in sub-section (1), the Central Government may, prescribe other safety measures for the drivers of two-wheeled motor cycles and pillion riders thereon.” 8 10. Section 128 of the Act of 1988 imposes a restriction on the driver of a two-wheeled motorcycle, not to carry more than one person on the motorcycle. Similarly, Section 194-C of the Act of 1988, inserted by Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motorcycle drivers and pillion riders, which states as under :- “194C. Penalty for violation of safety measures for motor cycle drivers and pillion riders. - Whoever drives a motor cycle or causes or allows a motor cycle to be driven in contravention of the provisions of section 129 or the rules or regulations made thereunder shall be punishable with a fine of one thousand rupees and he shall be disqualified for holding licence for a period of three months.” 11. Non-compliance of Section 128 of the Act of 1988 has been considered by their Lordships of the Supreme Court in the matter of Mohammed Siddique (supra), whereby it has been held in paragraphs 12 and 13 as under :-