H1$H CQURT 9F CHHATT5$GARH AT BILASPUR Singie Bench : Hon:bié3hrifiiii Raosa’neb Deshmu§(h.J. M. A. N0.870}2002 Ameiiam Nationai msurance Co. Ltd, $upeia, Bhiiai, Through: Branch Manager, Biiaspur (CG) Restoondem‘s Versus Baiyan Bai Widow Shri Ram Verma 2. Sushma Dfo Shriram Verma 3. Meena D/o Shriram Verma, Al! resident of Medesara, Tahsil Dhamdha, District Durg (C.G.) (Claimants-Applicants No.1 to 3) Mathura Prasad S/o Ghasi Ram (Driver-Non-appiicant No.1 .) 5. Shivkumar Tamrakar S/o No? Known (Owner of Vehicle MP~24/C/9046) Both 4 & 5 resident of Ga’ndai , Post Gandai, District Rajnandgaon (C.G.) (Nonaappiicant No.2) Misceiianeous Agneai under Section 1 73 of Motor Vehicies Act 1&88. Present : - Shri Shree Kumar Agrawai, Senior Advocate with Shri P. Dune, counsei Shri C. Jayant Rao, counsei for reepondenis No.1 to 3. V for the appeiiant. ' QRAL ORDER (Passed on this 29‘“ day orJury, zoos) Heard finaiiy. (2) The soie ground urged by learned senior counsel appearing on benaif of the appeiiant/insurer in ihis appeai is that the ineurer had proved that the deceased was driving the motorcycle in a drunken state and there were two pillion riders seated on the motorcycle which was breach of Section 128 of the Motor Vehicles Act and amounts to proof of COWlbuiOW negligence on the part of the deceased/ {3) Havihg heard 1eamed counsei, l have perused the recwd. The imsui’er had adduced no evidence to prove am! rash or riegligent act on the part of the deceased ai Ehe i‘mne of the accident There is no materiai on Yecord ta show ihat the deceased was heaviiy drunk ai the time of ihe accident. A5 regams, *xhe cohtentich that two hiilion riders Were seated on r the motorcycie driven ey the deceased ih breach of Sechon 128 of {he- Motor Vehic¥es Aer, 1988 it Wm by itseif not amount to contributory hegtigence on the part of the deceased. it was heid by the Fuii Bench of Htgh Coutt of Madhya Pradesh (indote Bench) in caee 0t Bevistngh versus Viktameingh & Ore, reported in ALR. 2908 Madhya Pradesh t8 as under: ”A Ptein feeding of Section 128 of the Act quoted above would show that sub-section (1) casts a duty on the driver of a two wheeied motorcycte not to carry more than ohe person in addition to himsett on the motorcyoie. Similariy, Ruie 123 of the Ruies quoted above mentions the safety devices to be gotovicied white manufaotuting a motorcycie. These provisions ohviousiy are satiety measures for the driver and piiiion rider and breach oi such saiety measures may amount to “neghgence” but such negtigence wiii not amount to I “contrtbutory negtigence” on the part of the piiiion ride! or “corncosite negiigence” on the part of the driver ct the es wouid ‘oe ciear from the authorities discussed above.“ it was hetd that viotetion ot Section t28 of the Motor Vehicies ct, per se, by a motor cvctist does not raise a presumption cf contributory négiigence on his pert. (e) Piecing {eiiance on the above decision, i am of the considered opinion tgthe soie gtound utged by iearned senior counsei appearing on behalf ct the appeiiant is iiabte to rejection. {5) it is also pettinent to note that the appeliantlinsurer did not seek permission under Section 170 of the Motor Vehicies Act from the Tribunai mototcycte eause ot the unless accioent such or negiigence damage sut’tered was partiy by the the piiiicn immediate rider rem A "m coeatesf the ciaim on grounds availabEe to the insured who was coniesting the ciaim. Therefore, the arguments advanced by the learned ccunse§ for the appeuant/insurer on the questiou of quantum of compensation awarded by the Tribunal cannot be considered in this appeair (8) As a result, this appeai has no merit which is accordingly dismissed. V 5d]- \‘\/Dilip Raosaheb Deshmukh W“ " Tumane ’ i