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2007 Supreme(MP) 1032
2008(1) JLJ 68
(FULL BENCH)
A.K. Patnaik, C.J., A.M. Sapre and S.K. Seth, JJ.
Devi Singh v. Vikram Singh and others
Miscellaneous Appeals No.670 and 314 of 2007 (Indore):
on reference by Division Bench; decided on 17.10.2007.
G.M. Chaphekar with Manish Sujan Jain and Shahid Sheikh
for appellant;
H.C. Jindal, M. Jindal and Y.P. Khare for Insurer.
Headnote:Motor Vehicles Act, 1988 -- Ss.128 and 166 -- damage partly not caused on account of violation of 5.128 by pillion rider -- he is not guilty of contributory negligence -- similarly, if damage caused, is not due to violation of 5.128 by driver, pillion rider cannot put in plea of composite negligence by driver.
By the order dated 24.8.2007, the Division Bench accordingly referred the following two questions to a larger Bench:
(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 in 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. [Para 3
Held: 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 casual 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.
Accordingly, our answers to the questions referred to us are :
(1) Violation of section 128 of the Act, per se, by a motor cyclist does not raise a presumption of contributory negligence on his part;
(2) similarly, violation of section 128 of the Act, per se does not amount to contributory negligence on the part of the pillion riders;
(3) 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. 2004 ACJ 1827 distinguished. AIR 2005 SC 3180 and 1991 ACJ 4 relied on. 2000 ACJ 737 approved. 2007(1) Manisha 204 (M.P.) and 2007(1) MPWN 88 overruled. [Paras 13 & 14
eksVj ;ku vf/kfu;e && /kkjk 128 rFkk 166 && /kkjk 128 ds vfrØe.k ds dkj.k dkfjr uqdlkuh eksVj lkbfdy ij ihNs&cSBh lokjh }kjk Hkkxr% dkfjr ugha && og ;ksxnk;h mis{kk dk nks"kh ugha gS && mlh Hkk¡fr ;fn dkfjr uqdlkuh pkyd }kjk /kkjk 128 ds vfrØe.k ds dkj.k ugha gS] ihNs&cSBh lokjh pkyd }kjk la;qDr mis{kk dk vfHkokd~ ugha dj ldrkA
rnuqlkj [kaM U;k;ihB us vkns‘k fnukad 24-8-2007 }kjk fuEufyf[kr nks iz‘u c`gÙkj U;k;ihB dks fufnZ"V fd, %
¼1½ D;k fdlh eksVj lkbfdy lokj }kjk eksVj ;ku vf/kfu;e dh /kkjk 128 ds vfrØe.k ls mldh vis{kk ds ckjs esa mi/kkj.kk mn~Hkwr gks ldrh gS vkSj rn~}kjk] tgk¡ rd mldk ljksdkj gS] og ;ksxnk;h gks ldrh gS\
¼2½ D;k vf/kfu;e dh /kkjk 128 ds vfrØe.k esa eksVj lkbfdy ij ys tk jgh ihNs&cSBh lokjh dk ek= bl dkj.k nq?kZVuk dkfjr fd, tkus dk ;ksxnku gksxk D;ksafd dkuwuh vfrØe.k] vFkok okLro esa mis{kk mn~Hkwr gksxh vkSj blds vfrfjDr D;k og vofLFkfr izLrqr dj ldrk gS fd nks"kh ;ku vkSj nqifg;k eksVj lkbfdy ds pkyd dh la;qDr mis{kk dh\
vfHkfu/kkZfjr % nq?kZVuk eas uqdlkuh eksVj lkbfdy ij ihNs&cSBh lokjh }kjk Hkkxr% vf/kfu;e dh /kkjk 128 dh vfrØe.k ds dkj.k dkfjr gqbZ gS] ihNs cSBh ;ksxnk;h mis{kk dk nks"kh ugha gSA mlh Hkk¡fr] ihNs cSBh lokjh dks uqdlkuh pkyd }kjk Hkkxr% vf/kfu;e dh /kkjk 128 ds vfrØe.k ds dkj.k dkfjr ugha gqbZ gS( ihNs&cSBh lokjh] pkyd }kjk la;qDr mis{kk dk vfHkokd~ ugha dj ldrhA vU; ‘‘kCnksa esa] ;fn vf/kfu;e dh /kkjk 128 dk ihNs&cSBh lokjh dks dkfjr uqdlkuh ls uSfefÙkd laca/k ugha gS] ,slk Hkax eksVj lkbfdy ij ihNs&cSBh lokjh dh vksj ls mis{kk vFkok eksVj lkbfdy ds pkyd dh vksj ls la;qDr mis{kk dh dksfV dk ugha gksxkA
rnuqlkj] gesa fufnZ"V iz‘uksa ds mÙkj gSa %
¼1½ eksVj lkbfdy lokj }kjk vf/kfu;e dh /kkjk 128 ds vfrØe.k ls ml dh vksj ls ;ksxnk;h mis{kk dh mi/kkj.k Lo;eso mn~Hkwr ugha gksxh(
¼2½ mlh Hkk¡fr] vf/kfu;e dh /kkjk 128 dk vfrØe.k ihNs&cSBh lokjh dh vksj ls Lo;eso ;ksxnk;h mis{kk dh dksfV dk ugha gksxk(
¼3½ ;fn pkyd dsoy vf/kfu;e dh /kkjk 128 dk vfrØe.k djrk gS] ihNs&cSBh lokjh] eksVj lkbfdy ds pkyd }kjk la;qDr mis{kk dk vfHkokd~ ugha dj ldrhA 2004 , lh ts 1827 izHksfnrA , vkb vkj 2005 ,l lh 3180 rFkk 1991 , lh ts 4 voyafcrA 2000 , lh ts 737 vuqeksfnrA 2007¼1½ euh‘kk 204 ¼e-iz-½ rFkk 2007¼1½ e-iz- ohDyh uksV~l 88 myVs x,A ¼iSjk 13 ,oa 14
Patnaik, C.J. -- 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 accident, 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 ofRs.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 MA No.31412007 and Devisingh filed MA No.67012007. 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 [2000 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(1) Manisha 204 (M.P.)], 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(1) MPWN 88], has held that section 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 larger Bench:
(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 in '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. Chapekar, learned senior advocate, appearing for the appellant r~lying 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 contributory negligence must
