In FAO-2530-2019 (O&M)-PUNJ HC- P&H HC enhances compensation in motor accident case after noting that deceased was only co-passenger and contributory negligence could not be attributed to him 
Justice Alka Sarin [14-03-2023]

Read Order: GURNAM SINGH & ANR. Vs ANKIT MITTERWAL & ORS. 

LE Correspondent

Chandigarh, March 15, 2023: The Punjab and Haryana High Court has allowed an appeal preferred by the claimant/ appellant against the award passed by the Motor Accident Claims Tribunal, to the extent where the contributory negligence of the deceased was held to be 50% while observing that by no stretch of imagination it could be held that the deceased was responsible or could have contributed in any manner to the accident in the present case. 

A Single-Judge Bench of Justice Alka Sarin said, “The deceased, in the present case, was not the driver of the vehicle but was only a co-passenger. There cannot be any contributory negligence which can be attributed to the deceased even though he may have been found to have consumed alcohol beyond the permissible limit.”

The present appeal was  preferred by the claimant/ appellant aggrieved by the award dated January 19, 2019 passed by the Motor Accident Claims Tribunal, to the extent where the contributory negligence of the deceased was held to be 50%.

The brief facts relevant to the present lis were that at about on December 31, 2014 the deceased along with Jatin, Aniket, Vishesh and Ajay were going to Shimla in a car and on the way near Parwanoo, the driver - Aniket, could not control the car as he was driving the car in a rash and negligent manner and the car struck with the parapet of the road and on account of that the occupants of the car sustained injuries. Parmeet succumbed to his injuries. 

Subsequently an FIR was registered under Sections 279/337/304-A of the Indian Penal Code, 1860 . The deceased was 24 years of age . It was averred in the claim petition that he was earning Rs.50,000/- per month and on account of his death, the claimant-appellants, who were  his parents, had suffered physically, mentally and economically.  It was further stated that the claimant-appellants were not financially dependent on the deceased. 

The Tribunal noted that  the deceased and the driver (the first respondent ) were found to have consumed alcohol and that too in excess of the permissible limit and further that the first respondent  was found to have consumed alcohol in excess leading to impaired judgment and held the deceased also  contributed in causing the accident and his contribution was assessed as 50%.

In view of the same, the counsel for the appellant contended that the deceased was not the driver of the vehicle and merely because he was found to have consumed alcohol would not hold him to have contributed to the accident in any manner.  Reliance was placed on the judgment in  Khenyei Vs. New Indian Assurance Co. Ltd. & Ors., in order to contend that there is a difference between contributory negligence and composite negligence. Not being the driver of the vehicle, it could not be said that there was any contributory factor which would be attributed to the deceased.

After considering the submissions of the parties from both the sides, the Court placed its reliance on Khenyei Case (Supra) wherein it was held that there is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons.

In view of the same, the Court noted that in the present case, the deceased was not the driver of the vehicle but was only a co-passenger. There cannot be any contributory negligence which can be attributed to the deceased even though he may have been found to have consumed alcohol beyond the permissible limit, the Bench added. 

However, by no stretch of imagination it could be held that he was responsible or could have contributed in any manner to the accident, the Court observed. 

In view of the above, the findings returned by the Tribunal qua contributory negligence were  set aside.  The enhanced amount over and above the amount awarded by the Tribunal shall carry interest @ 7.5% per annum from the date of filing the claim petition till realisation, the Court held while allowing the appeal.