Mohammed Siddique & Anr. vs National Insurance Company Ltd. & Ors.

HELD: 1. 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 motor cycle along with the driver and one more person on the 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 PW-3 to the effect that 2 persons on the pillion added to the imbalance. [Para 13][939-F-H; 940-A-F]

2. 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. [Para 14][940-F-G]

3. The second issue on which the High Court reversed the finding of the tribunal, related to the employment of the deceased and the monthly income earned by him. According to the claimants, the deceased was aged 23 years at the time of the accident and he was not even a matriculate. But he was stated to have been employed in a proprietary concern on a monthly salary of Rs.9600/-. The sole proprietor of the concern was examined as PW-2 and the salary certificate was marked as Ex.PW-1/8. The Tribunal which had the benefit of recording the evidence and which consequently had the benefit of observing the demeanour of the witness, specifically recorded a finding that there was no reason to discard the testimony of PW-2. [Para 15][940-H; 941-A-B]

4. But unfortunately the High Court thought that the employer should have produced salary vouchers and other records including income tax returns, to substantiate the nature of the employment and the monthly income. On the ground that in the absence of other records, the salary certificate and the oral testimony of the employer could not be accepted, the High Court proceeded to take the minimum wages paid for the unskilled workers at the relevant point of time as the benchmark. [Para 16][941-C]

5. But, this Court does not think that the approach adopted by the High court could be approved. To a specific question in cross-examination, calling upon PW-2 to produce the salary vouchers, he seems to have replied that his business establishment had been wound up and that the records are not available. This cannot be a ground for the High Court to hold that the testimony of PW-2 is unacceptable. [Para 17][941-D]

6. The High Court ought to have appreciated that the Court of first instance was in a better position to appreciate the oral testimony. So long as the oral testimony of PW-2 remained unshaken and hence believed by the Court of first instance, the High Court ought not to have rejected his evidence. After all, there was no allegation that PW-2 was set up for the purposes of this case. There were also no contradictions in his testimony. As against the testimony of an employer supported by a certificate issued by him, the High Court ought not to have chosen a theoretical presumption relating to the minimum wages fixed for unskilled employment. Therefore, the interference made by the High Court with the findings of the Tribunal with regard to the monthly income of the deceased, was uncalled for. [Para 18] [941-E-G]

7. Coming to the last issue relating to the multiplier, the Tribunal applied the multiplier of 18, on the basis of the age of the deceased at the time of the accident. But the High Court applied a multiplier of 14 on the ground that the choice of the multiplier should depend either upon the age of the victim or upon the age of the claimants, whichever is higher. [Para 19] [941-G-H; 942-A]

8. But unfortunately the High Court failed to note that the decision in Susamma Thomas was delivered on 06-01-1993, before the insertion of the Second Schedule under Act 54 of 1994. Moreover what the Court was concerned in Susamma Thomas was whether the multiplier method involving the ascertainment of the loss of dependency propounded in Davies v. Powell (1942) AC 601 or the alternative method evolved in Nance v. British Columbia Electric Supply Co. ltd (1951) AC 601 should be followed. [Para 21][942-E-F]

9. Trilok Chandra merely affirmed the principle laid down in Susamma Thomas that the multiplier method is the sound method of assessing compensation and that there should be no departure from the multiplier method on the basis of section 110B of the 1939 Act. Trilok Chandra also noted that the Act stood amended in 1994 with the introduction of section 163A and the second schedule. Though it was indicated in Trilok Chandra (in the penultimate paragraph) that the selection of the multiplier cannot in all cases be solely dependent on the age of the deceased, the question of choice between the age of the deceased and the age of the claimant was not the issue that arose directly for consideration in that case. [Para 22][942-F-G; 943-A]

10. What was ultimately recommended in Sarla Verma, as seen from para 40 of the judgment, was a multiplier, arrived at by juxtaposing Susamma Thomas, Trilok Chandra and Charlie with the multiplier mentioned in the Second Schedule. [Para 24] [944-B]

11. However when Reshma Kumari v. Madan Mohan came up for hearing before a two member Bench, the Bench thought that the question whether the multiplier specified in the second schedule should be taken to be a guide for calculation of the amount of compensation in a case falling under section 166, needed to be decided by a larger bench, especially in the light of the defects pointed out in Trilok Chandra in the Second Schedule. The three member Bench extensively considered Trilok Chandra and the subsequent decisions and approved the Table provided in Sarla Verma. It was held in para 37 of the report in Reshma Kumari that the wide variations in the selection of multiplier in fatal accident cases can be avoided if Sarla Verma is followed. [Para 25][944-C-D]

12. In the light of the above observations, there was no room for any confusion and the High Court appears to have imagined a conflict between Trilok Chandra on the one hand and the subsequent decisions on the other hand. [Para 27][944-G]

13. This Court finds that the High Court committed a serious error (i) in holding the victim guilty of contributory negligence (ii) in rejecting the evidence of PW-2 with regard to the employment and monthly income of the deceased and (iii) in applying the multiplier of 14 instead of 18. Therefore, the appeal is allowed and the impugned order of the High Court is set aside. The award of the Tribunal shall stand restored. There shall be no order as to costs. [Para 29][945-B]

Munna Lal Jain v. Vipin Kumar Sharma JT 2015 (5) SC 1 : [2015] 7 SCR 207 – relied on.

UPSRTC v. Trilok Chandra (1996) 4 SCC 362 : [1996]

2 Suppl. SCR 44; General Manager, Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176; Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 : [2009] 5 SCR 1098; Reshmi Kumari & Ors. v. Madan Mohan & Anr. (2013) 9 SCC 65 : [2013] 2 SCR 706; Susamma Thomas, Trilok Chandra and

Charlie (2005) 10 SCC 720 : [2005] 2 SCR 1173 – referred to.