Violation of Section 128 of the Motor Vehicles Act, 1988 does not automatically constitute contributory negligence, and the breach must have a causal connection with the damage suffered to be considered as such.

( 1 ) THE relevant facts leading to this reference are that one devisingh was a pillion rider on a motor cycle bearing registration No. MP-09-LF-1486 driven by Meharbansingh. The motor cycle met with an accident with a jeep bearing registration No. MP-09-W-2291 driven by vikramsingh. As a consequence of the acci-dent, the driver of the motor cycle as well as the two pillion riders on the motor cycle sustained injuries and they filed claim petitions under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act' ).

( 2 ) THE Tribunal awarded a compensation of Rs. 1,95,100/- with interest at the rate of 6% per annum from the date of filing of the claim petition in favour of Devisingh after holding that the negligence on the part of the jeep driver was 80% and the negligence on the part of the motor cycle driver was 20%. Aggrieved by the award, the United india Insurance Co. Ltd. filed M. A. No. 314/ 2007 and Devisingh filed M. A. No. 670/ 2007. When the appeals were heard by the division Bench, a contention was raised on behalf of the United India Insurance Co. that section 128 of the Act provides that no driver of a two wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and in the present case, the driver of the motor cycle was carrying two pillion riders in violation of Section 128, of the Act and, therefore, the compensation awarded by the Tribunal in favour of devisingh, who was one of the two pillion riders, should have been reduced on account of his contributory negligence.

( 3 ) IN its order dated 24-8-2007 passed in the present appeals, the Division Bench found that in Manjo Bee and others v. Sajjad khan and others, 2007 ACJ 737, a Division bench of this Court has taken a view that carrying more passengers than one on motor cycle is in violation of Section 128 of the act but by carrying more persons, one cannot be said to be negligent as a person having more than one pillion rider can also be more careful than a person going alone on a motor cycle and accordingly repelled the plea of contributory negligence on behalf of the driver of the motor-cycle raised in that case. The Division Bench further found that in national Insurance Company Ltd. v. Smt. Uma Tiwari and others, 2007 (I) MANISA 204 (MPJ, another Division Bench of this Court accepted the contention that the deceased who was driving the scooter along with three other persons by violating the provisions of section 128 of the Act was negligent and had accordingly determined the liability on the owners of the jeep and the scooter in the proportion of 70:30 and another Division Bench of this Court in Kanti Devi sikarwar and others v. Om Prakash and others, 2007 (I) MPWN 88, has held that Sec-tion 128 of the Act bars riding of more than one pillion rider on the motor cycle and in that case the deceased who was driving the motor cycle in violation of the provisions of section 128 of the Act was guilty of contributory negligence. By the order dated 24-8-2007, the Division Bench accordingly referred the following two questions to a largerbench.

(1) Whether by violation of Section 128 of the Motor Vehicles Act, 1988 by a motorcyclist, a presumption can arise with regard to his negligence and thereby making it contributory as far as he is concerned? (2) Whether a pillion rider while being carried on a motor cycle in violation of Section 128 of the Act contributes to the causation of the accident simply because of statutory violation, or negligence as a matter of fact should arise and further whether he can put forth the stance that there has been a composite negligence by the offending vehicle as well as by the driver of a two wheeled motor cycle?

( 4 ) MR. G. M. Chaphekar, learned senior advocate, appearing for the appellant relying on the Ratanlal and Dhirajlal, The Law of torts, 25th Edition 2006 by Justice G. P. Singh submitted that negligence on the part of the plaintiff which can be described as c