Contributory negligence must be proven with evidence; mere violation of safety regulations does not automatically imply negligence. Loss of consortium quantified at Rs.40,000/- for each claimant.

JUDGMENT :

Birendra Kumar, J. - Three persons, namely, (1) Sharwan Singh, (2) Shaitan Singh and (3) Salam Singh were going on a Luna Moped. On 20.07.2001, a rash and negligent Jeep bearing registration No.RJ-12-T-0061 coming towards Luna dashed against it, which resulted in injury and death of all three above named. For the incident aforesaid, at Police Station Kalandri, a case No.72/2001 was registered against driver of the offending Jeep and after investigation of the case, the Police submitted charge-sheet against the driver. The offending Jeep was insured with the New India Assurance Company Limited.

2. The dependents of Shaitan Singh filed Motor Accident Claim Case No.641/2001. The dependents of Salamsingh filed claim case No.642/2001 and dependents of Sharwansingh filed claim case No.643/2001. All the claim cases were decided by a common judgment dated 10.07.2003 whereby, certain awards were made in favour of claimants by the Motor Accident Claims Tribunal.

3. The claimants are not satisfied with the quantum of award decided by the Tribunal, hence, S.B. Civil Misc. Appeal No.1169/2005 was filed against the judgment in claim case No.641/2001, S.B. Civil Misc. Appeal No.599/2004 was filed against judgment in claim case No.643/2004 and S.B. Civil Misc. Appeal No.3490/2011 above was filed in claim case No.642/2001.

4. With the consent of learned counsels for the parties all the appeals were heard together and are being disposed of by this common judgment.

5. Two common questions arising in these appeals are:- (1) Is the Tribunal justified in deducting 25% of the compensation amount for contributory negligence of the deceased; (2) Is the submission of learned counsel for the Insurance Company that for loss of consortium only Rs.40,000/- would be awarded consistent with the judgment of the Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi & ors., (2017) 16 SCC 680 and the said Rs.40,000/- would be distributed amongst all the claimants who have lost different consortium.

Question No. 1

6. Learned counsel for the appellants contends that the question of contributory negligence is a question of fact and must be established by evidence by the party asserting it. Contributory negligence cannot be presumed on the basis of certain facts unless there is evidence that negligence of the deceased had actually contributed to the accident. Learned counsel contends that applicant's witness No.4-Ramsingh is eye-witness of the incident and in his testimony Ramsingh is clear enough that the Luna was moving slowly in its proper direction and the offending Jeep was rash and negligent in causing accident to the Luna by crossing its lane to the wrong side. There is no other evidence brought by the respondents to make out a case of contributory negligence.

7. Learned counsel for the Insurance Company contends that Section 128 of the Motor Vehicles Act prohibits the driver of the two wheeler to carry more than one person in addition to himself. Chapter XIII provides for penalties for contravention of the provisions of the Act, the Rules and Regulation or any notification made under the statutory power, therefore, negligence on the part of the deceased persons would stand established. Learned counsel has relied on the judgment of the Hon'ble Supreme Court in Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum & ors., decided on 17.01.1997.

8. Section 128 of the Motor Vehicles Act reads as follows:-

"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."

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