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2011 Supreme(Mad) 303
2011 (2) LW 34
High Court of Judicature at Madras
B. RAJENDRAN
Oriental Insurance Company Ltd., Gobichettipalayam
Versus
Sivagami & Others
C.M.A.No.997 of 2005 & C.M.P.No.5601 of 2005
Decided on : 21-01-2011
For the Appellant:J. Chandran, Advocate.
For the Respondents:R1, V.P. Sengottuvel, Advocate, R2 & R3, No Appearance.
The main legal point established in the judgment is that violation of Section 128 of the Motor Vehicles Act constitutes contributory negligence, and the injured person may be held liable for a portion of the compensation awarded.
Headnote:
Motor Vehicles Act - Contributory Negligence - Section 128
Fact of the Case:
The appellant, an insurance company, appealed against an award granted by the Tribunal, arguing that the injured person violated the policy conditions by traveling in a motorcycle carrying three passengers, which is against Section 128 of the Motor Vehicles Act. The appellant contended that the quantum of compensation granted was high.
Finding of the Court:
The Court found that the injured person sustained severe injuries and the compensation granted by the Tribunal was reasonable. However, the Court held that the injured person contributed to the accident by violating Section 128 of the Motor Vehicles Act, and therefore, directed the claimant to bear 50% of the awarded amount for contributory negligence.
Issues: The issues were whether the claimant contributed to the accident and whether the compensation granted by the Tribunal was correct.
Ratio Decidendi: The Court held that the injured person's violation of Section 128 of the Motor Vehicles Act constituted contributory negligence, and therefore, 50% of the awarded amount was to be borne by the claimant.
Final Decision: The civil miscellaneous appeal was partly allowed, directing the claimant to bear 50% of the amount awarded by the Tribunal for contributory negligence. The appellant was permitted to withdraw a portion of the awarded amount, and the claimant was permitted to withdraw the balance amount. No costs were awarded.
1. The appellant/Insurance Company has come forward with this appeal as against the award granted by the Tribunal on the ground that the Tribunal has failed to take into consideration that the injured person was travelling in a vehicle violating the policy conditions viz., motorcycle carrying three passengers, which is against Section 128 of the Motor Vehicles Act. When there is a violation of policy condition, the claimant ought to have contributed to the accident. Therefore, the contributory negligence aspect should have been considered by the Tribunal. The learned counsel for the appellant/Insurance Company would contend that the quantum of compensation granted by the Tribunal in respect of the injuries suffered by the claimant is high. Therefore, they have come forward with this appeal.
2. The learned counsel for the first respondent/claimant would mainly contend that the claimant was aged about 54 years at the time of accident and she has sustained the following injuries:-
"(1) Avulsion of left ear lobule, (2) Skin loss over the lateral aspect of right ear pinna upper 1/3rd. The upper 2/3 rd of the ear is avulsed with multiple fracture of the cartilage, (3) Sutured wound 10 cm below right knee, (4) Punctured wound 2 x 1 cm left lower limb, (5) Paresis right upper limb, (6) Tenderness over right clavicle, and (7) Tenderness over left tibia."
As per the MRI taken, the first respondent/claimant has sustained the following injuries:-
"Fracture of the posterior element of C2 with Disruption of anterior and posterior longitudinal ligaments causing forward lis thesis of C2 over C3 and fracture of anterior ring of C1"
3. With such multiple fractures, the claimant being a lady, hospitalized as an inpatient between 16.03.2000 and 30.03.2000 continuously for 15 days and thereafter, took treatment as an out patient between 30.03.2000 and 28.04.2000, the amount of pain and suffering undergone by the injured person was exhorbitant. Therefore, even though multiplier theory was adopted, the amount granted under the head 'permanent disability' is only Rs.1,98,000/-. Further, including medical bills, extra nourishment and pain and suffering, only a sum of Rs.4,46,676/- has been awarded. Therefore, the quantum of compensation granted by the Tribunal was reasonable.
4. In so far as the contributory negligence is concerned, the learned counsel for the first respondent/claimant would contend that even though it is wrong on the part of the claimant to travel in a motorcycle along with two others, yet the accident was only due to the negligence of the driver of the tipper lorry and rightly the first information report also was registered against the driver of the tipper lorry. Therefore, there cannot be any deductions for contributory negligence and therefore, the learned counsel for the claimant would seek for dismissal of the appeal.
5. Heard both sides. The short point for consideration in this appeal is whether the claimant has contributed to the accident and she would be liable for contributory negligence? and Whether the Court below has granted compensation correctly?.
6. The accident is admitted. The liability is questioned only on the ground of contributory negligence. It is an admitted case that the injured was travelling in a two wheeler along with two others, which according to the appellant/Insurance Company is contrary to the provisions of Section 128 of the Motor Vehicles Act.
7. Section 128 of the Motor Vehicles Act reads as follows:-
"(1) No driver of a two-wheeled motorcycle shall carry more than one person in addition to himself on the motorcycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motorcycle 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 motorcycles and pillion riders thereon"
8. Therefore, S
