FAO No.2493 of 1996 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2493 of 1996 Date of Decision. 23.12.2010 Pawan Kumar Chaudhary and others ......Appellants Versus State of Haryana through Secretary, Transport Department and others ......Respondents Present: Mr. Ashwani Arora, Advocate for the appellants. Mr. Kunal Garg, AAG, Haryana for respondents No.1 and 3. None for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. The appeal is for enhancement of compensation for death of pillion rider in a scooter. The Tribunal while assessing the compensation determined an amount of Rs.1,68,000/- as payable but had made a partial abatement to the tune of Rs.42,000/- by attributing contributory negligence to the driver of the scooter. The accident is said to have taken place at the time when the insured's truck dashed against the scooter, which was going in front when the deceased, who was a pillion rider fell down and suffered fatal injuries. The Tribunal attributed contributory negligence by the fact that the driver of the scooter did not have a driving licence. 2. In my view, the Tribunal was in error in applying the FAO No.2493 of 1996 -2- principle of contributory negligence in a case where the deceased himself had not contributed to the accident. He was merely a pillion rider and therefore, it was a composite negligence, if it ever existed between the driver of the scooter and the driver of the truck. In a case of composite negligence it is perfectly tenable for a claimant to institute a case against any one of tort feasors and recover the whole amount against one of the tort feasors. This is to state that there could be no abatement of claim for compensation in a case of composite negligence. Even in the finding that there had been a negligence on the part of the driver of the scooter cannot be inferred by the only fact that the driver did not have a valid driving licence. There is no such presumption in law that a person that did not have a driving licence should always be taken to have contributed to the accident or caused the accident. This is invariably a question of fact that has to be established at the time of trial. It has been held by our Court in Mohinder Singh Sohal Vs. Ramesh Kumar AIR 1981 P&H 199 that the fact that a person did not have a licence could create no presumption that the person was negligent in his driving. There have been similar decision from Madhya Pradesh High Court reported in Manoj B. Vs. Sajad Khan 2007 ACJ 737 and the High court of Himachal Pradesh in Sukhbir Singh Vs. National Insurance Company Limited 2006 AIHC 3587 that a contributory negligence cannot be attributed to a pillion rider. To a similar effect, see also Rajni Chhabra Vs. State of Haryana 2006 ACJ 2700. The view of the High Court is also found expressed in several other decisions of other Courts as well particularly in the decision of Karnataka High Court in S.D. FAO No.2493 of 1996 -3- Balaji Vs. General Manager Karnataka State Transport Corporation, Bangalore 1985 ACJ 150 and Madhya Pradesh High Court in M.P. State Transport Corporation Vs. Abdul Rehman AIR 1987 MP 248. The Tribunal was, therefore, in error in even finding the driver of the scooter as having contributed to the accident especially when the vehicle was hit from behind by the truck. I would, therefore, hold that the insured's vehicle was wholly responsible for the accident and there was simply no scope for causing any abatement to the claim. The deceased was 48 years of age and the Tribunal had taken the extent of dependence on the family for the services rendered by the woman as Rs.1,000/- and adopted a multiplier of 14 suitably to the age. I will maintain the same calculation and hold that the claimant shall be entitled to Rs.1,68,000/- on the basis of the determination made having regard to the fact that I reverse the finding regarding the partial abatement. The claimant will be entitled to an additional amount of Rs.42,000/- with interest @6% from the date of the petitioner till the date of payment. 3. The appeal is allowed to the above extent. (K. KANNAN) JUDGE December 23, 2010 Pankaj*