I.M.

NANAVATI MEMORIAL MOOT COURT COMPETITION, 2016

TEAM CODE:

GLS C OLLEGE, AHMEDABAD

I.M. NANAVATI MEMORIAL MOOT COURT COMPETITION, 2016

IN THE HIGH COURT OF GUJARAT

(UNDER SECTION 173 OF THE MOTOR VEHICLE ACT, 1988)

IN THE MATTER OF:

AJIT SOLANKI ..........................................................................................A PPELLANT
V.
SHANKAR SINGH......................................................................................R ESPONDENT

IN THE MATTER ARISING OUT OF:

The impugned Judgment and Order dated 16/08/2015
Passed by the Motor Accidents Tribunal, Ahmedabad

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS

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TABLE OF CONTENTS

Contents
LIST OF ABBREVIATIONS.........................................................................................................3
INDEX OF AUTHORITIES..........................................................................................................4
STATEMENT OF JURISDICTION..............................................................................................11
STATEMENT OF FACTS...........................................................................................................12
STATEMENT OF ISSUES..........................................................................................................14
SUMMARY OF ARGUMENTS...................................................................................................15
ARGUMENTS ADVANCED........................................................................................................16
THE TRACTOR DRIVER IS GUILTY U/S 279, 337 AND 338 OF IPC, 1860..................16
II.

THE APPELLANT WAS NOT LIABLE FOR CONTRIBUTORY NEGLIGENCE........17

III. THE COMPENSATION AWARDED BY THE TRIBUNAL IS NOT JUST AND FAIR.. .19
PRAYER....................................................................................................................................16

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LIST
&

Ors.
AIR
i.e.
p.
SC
Anr.
v.
IPC

OF

ABBREVIATIONS

And
Section
Others
All India Reporter
that is
Page
Supreme Court
And others
Versus
Indian Penal Code

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INDEX

OF

AUTHORITIES

CASES CITED
CASE NAME

S.NO
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.

PAG
E

Pandian Roadways

Corporation vs. Karunanidhi, minor by father 11

B.Purushothaman AIR 1982 Mad. 104

Jamnagar Motor Tansport Union (P) Ltd. vs. Gokaldas Pitambar's 1966 ACJ 11
42(SC)
National Insurance Co. Ltd. Vs. Smt. Sindhu and Ors.2009(3)JLJ323
Mohinder Singh Sohal v. Ramesh Kumar & Ors. ACJ 326 (P&H)
Manjo Bee and ors. vs. Sajjad khan and ors.
Prabhudal v. P.K. Dutta 1986 Cr LJ 390
Devisingh Vs. Vikramsingh and Ors. AIR2008MP18
Kumari Kiran Vs. Sajjan Singh (2015)1SCC539
Gangadhar biswas v. State of Orissa (1989)3 crimes 314
Jiju Kuruvila and Ors. Vs. Kunjujamma Mohan and Ors. AIR2013SC2293

11
12
13
13
13
13
14
14

R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others 15
AIR1995SC755
Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. and Anr. 15

13.
14.

(2010)10SCC254
Raj Kumar Vs.Ajay Kumar and Anr. (2011)1SCC343,
Reshma Kumari and Ors.Vs. Madan Mohan and Anr.JT2013

15.

Govind Yadav v. The New India Insurance Co. Limited ( 2011 ) 10 SCC 683

15
15
15

Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka and ors.JT 15

16.

2009
Abati Bezbaruah v. Dy. Director General, Geological Survey of India and 15

17.
18.
19.
20.
21.
22.
23.

Anr.AIR2003SC1817
Ramesh Chandra v. Randhir Singh and ors.AIR1977All330
15
Lim Poh Choo v. Camden and Islington Area Health Authority (1979) 1 All 16
ER 332
State of Haryana and Anr. v. Jasbir Kaur and Ors. (2003) 7 SCC 484
16
Laxman v. Divisional Manager, Oriental Insurance Co. Ltd. and Anr. 2012 16
ACJ 191
Helen C. Rebello & Ors. Vs. Maharashtra State Road Transport Corpn. & 16
Anr.AIR1998SC3191
Gobald Motor Service Ltd. and Anr. vs. R.M.K. Veluswami and Ors. AIR 16
1962 SC 1.
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24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.

Fakkirappa vs. Yallawwa and Anr. 2004 ACJ 1141

17
Jai Bhagwan v. Laxman Singh and Ors.( 1994 ) 5 SCC 5
17
Master Mallikarjun Vs.Divisional Manager, The National Insurance Company 17
Limited and Anr. AIR2014SC736
Sapna v. United Indian Insurance Co. Limited and Anr.AI R 2008 SC 2281
17
Iranna v. Mohammadali Khadarsab Mulla and Anr.2004ACJ1396
17
Kum. Michael v. Regional Manager, Oriental Insurance Company Limited 17
and Anr.
Madhya Pradesh State Road Transport Corporation Bairagarh, Bhopal v. 17
Sudhakar and Ors. AIR1968MP47
Nagappa vs. Gurudayal Singh and Ors.AIR 2003 SC 674
, K. Suresh v. New India Assurance Company Ltd. and Anr. (2012)12SCC27
H. West & Son Ltd. v. Shephard 1958 ACJ 504
Thomas v. British Railways Board 1977 ACJ 222
Birkett v. Hayes 1983 ACJ 697
General Manager, Kerala State Road Transport Corporation, Trivandrum vs.

17
17
18
19
19
19

Mrs. Susamma Thomas and others AIR 1994 SC 1631

K. Jagannath Rai v. Gangarathna C. Bai 2004ACJ982
19
B.T. Krishnappa v. D.M. United Insurance Co. Ltd. and Anr. AIR 2010 SC 19
2630
The Divisional Controller, K.S.R.T.C. v. Mahadeva Shetty and Anr. AIR 2003 19
SC 4172
Ashwani Kumar Mishra v. P. Muniam Babu and Ors. (1999) 4 SCC 22
19
West v. Shepard 1964 AC 326
19
Cholan Roadways Corporation Ltd., rep. by its Managing Director vs. Ahmed 20
Thambi and Ors. 2006 ACJ 2703
B. Kothandapani v. Tamil

Nadu

State

Transport

Corporation 20

Limited(2011)2SCC(Cri)1002
Ward v. James [1965] 1 All E.R. 563
20
C.K. Subramania Iyer and Ors. vs. T. Kunhikuttan Nair and Six Ors.AIR 20
1970 SC 376
Parry v. Cleaver 1969 1 All.E.R. 555
Rushton v. National Coal Board (1953) 1 All.E.R. 314
Davies v. Powell Duffryn Associate Collieries Ltd. 1942 AC 601
Baker v. Willoughby 1970 AC 467.
C.K. Subramania Iyer and Ors. vs. T. Kunhikuttan Nair and Six Ors.AIR

20
20
20
20
20

1970 SC 376
Taff Vale Ry. Co. v. Jenkins [1913] A.C 1, Barnett v. Cohen and Ors. [1921] 2 20
K.B. 461
Sri Nagarajappa Vs.The Divisional Manager, The Oriental Insurance Co. 20
Ltd.AIR2011SC1785

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20
53.

Concord of India Insurance Co. Ltd. v. Nirmala Devi AIR 1979 SC 1666

BOOKS CITED AND REFERRED

S.N.

BOOKS

1.

HALSBURY'S LAWS OF ENGLAND , (4th Ed., LexisnexisButterworthsWadhwa, 2013).

2.

JUSTICE Y V CHANDRACHUD & V R MANOHAR, THE INDIAN PENAL CODE, (31ST

ED., RATANLAL AND DHIRAJLAL, 2007)

3.

LAWMANNS BHARGAVAS MOTOR VEHICLES LAWS, (K AMAL PUBLISHERS, NEW

DELHI, 2009)

4.

UTPAL RANJAN SARKAR, MOTOR ACCIDENTS MOTOR INSURANCE CLAIMS

ASSESSMENT

5.

OF

COMPENSATION , ( 2ND ED., SODHI PUBLICATIONS, 2007)

VISHWAS SHRIDHAR SOHONI, THE INDIAN PENAL CODE, (VOL. II, P EMIER
PUBLISHING COMPANY, 2011)

6.

N. VIJAYARAGHAVAN, MOTOR ACCIDENTS CLAIMS, (2ND ED., ASSOCIATED BOOK

COMPANY, 2005)

DATABASES REFERRED
1.
2.
3.

http://www.manupatra.com
http://www.westlawindia.com
https://www.scconline.in/default.aspx

4.

https://www.jstor.com

DICTIONARIES
Henry Campbell Black, BLACKS LAW DICTIONARY, (9th Ed., 2005).
P. RamnathaAiyer, THE LAW LEXICON, (ED. 2002).

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STATEMENT

OF JURISDICTION

THE PETITIONERS HAVE FILED THE CASE BEFORE THE HONBLE HIGH COURT OF
GUJARAT, IN THE MATTER OF AJIT SOLANKI V. SHANKAR SINGH. THE HONORABLE HIGH
COURT EXERCISES JURISDICTION TO ENTERTAIN APPEAL FILED BY ANY PERSON
AGGRIEVED BY THE DECISION OF MOTOR ACCIDENT CLAIM TRIBUNAL. THE APPELLANT
APPROACHES THE HONORABLE COURT UNDER SECTION 173 1 OF MOTOR VEHICLES ACT
1988.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS.

1 Section 173: Appeals (1) subject to the provision of subsection (2) any person aggrieved
by an award of a claims tribunal may, within ninety days from the date of the award prefer an
appeal to the high court: provided that no appeal by the person who is required to pay any
amount in terms of such award shall be entertained by the high court unless he has deposited
with twenty five thousand rupees or fifty percent. Of the amount so awarded, whichever is
less, in the manner directed by the High court: provided further that the High Court may
entertain the appeal after the expiry of the said period of 90 days if it is satisfied that the
appellant was prevented by sufficient cause from preferring the appeal in time.
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STATEMENT

OF

FACTS

For the sake of brevity and convenience of the Honble Court the facts of the present case are
summarised as follows:
-BACKGROUNDMr. Ajit Solanki was travelling to his village Halol from Ahmedabad on his motorcycle
bearing number GUI 9168 along with his children, Anu, aged 13 years and Anand, aged 10
(pillion riders). En route to Ahmedabad, a tractor bearing number GJ1-K 2013 driven by
Shankar Singh collided with the motorcycle exactly at the middle of the road. Due to which
the appellant fell down along with his children, all of them sustaining injuries.
-RESULT OF THE ACCIDENT After medical examination it was found that the appellant minors have had multiple injuries
on their body and had to go through surgeries. Anu, the appellant daughter, had 30%
permanent disabilities, and Anand, the appellant son, had 20% permanent disability. The
appellant father had severe head injuries and sustained 50% permanent disabilities as
examined by Dr. Hitesh Shah, an orthopaedic surgeon.
FIR was lodged against the offending truck at Halol Police Station U/S 279. 337, 338. A
claim petition was filed in the tribunal stating his income tax returns for the past 4 years
including the income for the current year as Rs. 21 lacs.
A study rendering the respective event as a rare occurrence, was produced by the insurance
company stating that the accidents do occur due to the wheel coming off it is because of the
rusting of the bolt, or the studs of the tyre of the motor cycle being old, rusting of the axle of
the wheel.
-

DECISION

OF THE

MACT, AHMEDABAD.-

The tribunal after considering all the facts established contributory negligence as 50:50 on the
part of respondent and the appellant and awarded compensation to daughter Rs. 772672, son
Rs. 168938, and appellant father Rs. 122250 under various heads together @ 6% interest p.a.

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STATEMENT

OF ISSUES

ISSUE 1: WHETHER THE RESPONDENT IS GUILTY UNDER SECTIONS 279, 337, AND
338 OF INDIAN PENAL CODE, 1860

ISSUE 2: WHETHER THE APPELLANT WAS LIABLE FOR CONTRIBUTORY

NEGLIGENCE

ISSUE 3: WHETHER THE COMPENSATION AWARDED BY THE TRIBUNAL IS JUST

AND REASONABLE

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SUMMARY

I.

OF

ARGUMENTS

THE TRACTOR DRIVER IS GUILTY UNDER 279, 337 AND 338 OF IPC,
1860

The allegations against the respondent are justified. The respondent is guilty under section
279, 337 as well as 338. Being the driver of a heavy vehicle, respondent owed a greater duty
of care towards the appellants, which was absent in the present case, which further proves
that the he was negligent while driving the tractor. Also, as the accident caused permanent
disability to the appellant father and appellant minors, thus respondent is guilty of section 337
and 338 which talks of hurt and grievous hurt respectively, of the IPC, 1860.
II.

APPELLANT FATHER IS NOT GUILTY OF CONTRIBUTORY NEGLIGENCE

The counsel argues that the appellant father was not guilty of any negligence. The tractor
driver, being the driver of the heavier vehicle ought to have been more cautious and careful
while driving. He had the opportunity to avoid the accident but failed to do so. The appellant
father was driving with his two kids as pillion riders and it can be safely presumed that he had
all necessary care because of the same. Also the number of pillion riders alone can not make
him liable for negligence. Therefore, the decision taken by the Tribunal making appellant
father liable for 50% contributory negligence should be set aside.
III.

THE COMPENSATION AWARDED BY THE TRIBUNAL TO THE APPELLANTS

WAS NOT JUST AND FAIR

The tribunal awarded compensation amounting to Rs. 772,672 to appellant daughter,

Rs.168,938 to son and Rs. 1,22,250 to appellant father for 30%, 20%, and 50% permanent
disabilities caused to them, respectively. The compensation awarded to them was grossly
inadequate in comparison to the pain and suffering they had and will have to go through in
the future. The Tribunal did not take into account various heads under pecuniary and nonpecuniary damages carefully. The counsel argues that if the compensation awarded by the
Tribunal is not enhanced by the Honourable High Court, then that would amount to gross
injustice to appellant father and appellant minors.

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ARGUMENTS ADVANCED
THE TRACTOR DRIVER IS GUILTY U/S 279, 337 AND 338 OF IPC, 1860.
Under 279 of the Indian Penal Code (here and after referred with IPC) it is written that-
whoever drives any vehicle , or rides, on any public way in a manner so rash or negligent as
to endanger human life, or to be likely to cause hurt or injury to any other person, shall be
punished with imprisonment of either description for a term which may extend to 6 months.
According to the definition, Shankar Singh, the tractor driver is liable for rash and negligent
driving. A heavy vehicle driver ought to be extra cautious while driving the vehicle 2. In the
present case, the facts point towards a head-on collision between the tractor and the motor
cycle. The front wheel was separated from the motor cycle also substantiates this point as that
is the most plausible possibility in a case of such peculiarity. The tractor and the motorcycle
were coming from the opposite directions and thus collided head-on at the middle of the road.
Thus it is reasonable to assume that the tractor driver should have slowed down his tractor as
the motor cycle was coming from the opposite side, in complete panoramic view of the
tractor driver. Had he been mindful and taken due care which was required to drive a vehicle
as heavy as a tractor, the accident would have been avoided 3. Thus the drive is rightly
charged with section 279 of the IPC, 1860.
Also, The common ingredients of negligence are1.
2.
3.
4.

State of mind
Careless conduct.
Breach of care or duty of a required standard.
Resulting damages.

In the present case the respondent has showed careless conduct and breached the duty of care
that he owed to all the other people on the road or at a public place by running into a vehicle
which was carrying 3 persons4. Had the respondent been a little more cautious being the

2 Pandian Roadways Corporation v. Karunanidhi, minor by father B.Purushothaman, AIR

1982 Mad. 104
3 Jamnagar Motor Tansport Union (P) Ltd. v. Gokaldas Pitambar's, 1966 ACJ 42(SC)
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driver of the heavier vehicle, the accident would be avoided. The above event resulted into
damages to the appellant rendering permanent disabilities.
Section 337 of the IPC, 1860 talks of an act causing hurt by endangering life or personal
safety of others, which is applicable to the present case in hand. The tractor driver, by driving
rashly and negligently, caused hurt to the appellants which resulted in permanent disabilities
to the appellants.
Section 338 also rightly applies upon the respondent 1 in the instant case wherein he caused
grievous hurt and endangered appellants lives by driving rashly and negligently. The lives of
all the three appellants were in danger because of the collision. Thus, the sections 279, 338
and 339 of the IPC are applicable in the instant case.
II.

THE APPELLANT WAS NOT LIABLE FOR CONTRIBUTORY NEGLIGENCE

The counsel humbly submits to the court that there is no evidence or fact which proves the
presence of contributory negligence on part of the appellant father. The accident had occurred
due to the negligence on the part of the respondent no. 1 only. Mr. Ajit Solanki, the appellant
father was driving with his daughter and son aged 13 and 10 respectively, as pillion riders. On
the way to their village Halol, they were struck by the tractor at the middle of the road. The
words, collided with5 mentioned in the facts proves the point that the tractor ran into them
as they were travelling on their motorcycle. The appellants cant possibly be made
responsible for the act of respondent no.1 wherein he along with his tractor himself struck the
appellants riding on the motorcycle. It is irrational to assume that a prudent man will foresee
such an unpredictable act. This negates the presence of any kind of negligence on the part of
the appellants.
The counsel also submits that the number of pillion riders on the motor cycle does not
determine any negligent act. In Mohinder singh case 6, the Court had observed that
Contributory negligence is not to be presumed merely from the facts that the
4 National Insurance Co. Ltd. v. Smt. Sindhu and Ors., 2009(3)JLJ323
5 Oxford Advanced Learners Dictionary, collide with - Hit by accident when moving
6 Mohinder Singh Sohal v. Ramesh Kumar & Ors., ACJ 326 (P&H)
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person/driver/rider did not hold a driving license and that he was carrying more passengers on
the vehicle than permitted under law.
Also, in Manjo Bee & Ors. v. Sajjad Khan, the Honourable High Court of Madhya pradesh
stated that The provisions of section 128 of the Motor Vehicle Act, 1988 obviously are safety measures
for the driver and pillion riders and breach of such safety measures may amount to
negligence but such negligence will not amount to contributory negligence unless such
negligence was partly the immediate cause of the accident or damage suffered.
Also in Devisingh Vs. Vikramsingh and Ors. and Pandian Roadways Corporation vs.
Karunanidhi the high court observed the cause of damage rather than considering the no. of
pillion riders on the bike.
In the present case, there is no proof whatsoever to support that carrying more than one
pillion rider was the immediate cause of the accident. The limited number of pillion riders is
only for the safety of the riders and does not prove any negligence on the part of the rider.
In Manjo Bee case7, the Honourable Supreme Court held that violation of section 1288 of
Motor Vehicle Act, 1988 by itself does not amount to contributory negligence on the part of
the driver or the motor cycle or the pillion riders... Thus, the appellants cant be held liable
for contributory negligence merely because he had two pillion riders on the motorcycle. On
the contrary, it can reasonably be assumed that as the pillion riders were his children aged 10
and 13, therefore he was extra cautious while driving the motor cycle, this has already been
considered a reasonable inference from the situation in Kumari Kiran v. Sajjan Singh case
wherein the honble judges of the Honourable Supreme Court stated that the only aspect of
the case that we can reasonably assume is that the Appellant-father would have taken
sufficient caution while riding the motorcycle since he was travelling with his two minor
children 9

7 Manjo Bee and Ors. v. Sajjad Khan and Ors., Prabhudal v. P.K. Dutta, 1986 Cr LJ 390,
Devisingh v. Vikramsingh and Ors., AIR2008MP18, Mohinder Singh Sohal v. Ramesh
Kumar, 1981 ACJ 326 (P&H
8 Section 128
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Furthermore, the study produced by the Insurance company of the tractor also substantiates
the point that the negligence was in fact, on the part of the respondent driver and not
appellant. Since the study conducted by forensic engineers, the cases of wheel of the motor
cycle coming off in an accident are very rare. Thus in the present case where the front wheel
of the motor cycle had come off, it is submitted that the collision by the tractor was so intense
that a case as rare as this also happened. Only the driver of the heavy vehicle 10 could be
responsible for intensity as large as this one, thus it negates the contributory negligence, if
any, on part of the appellant father.
Further, the fact that the accident happened at the middle of the road does not imply that the
father was driving rash and negligent similarly an analogy can be drawn with the case 11
wherein even if the person was smelling of alcohol that does not ascertain the fact that his
drunken state was the reason behind the accident, similarly though the accident happened in
the middle of the road does not mean his action was responsible for the negligence.
III. THE COMPENSATION AWARDED BY THE TRIBUNAL IS NOT JUST AND FAIR.
It is humbly submitted to the Court that the tribunal has overlooked various parameters and
principles while awarding compensation to the appellants. It did not take into account the
expenses likely to be incurred by appellant father and his children for future treatment and the
loss of amenities and enjoyment of life. The loss of future income of the appellant father had
not been taken into account properly. It is humbly put to the Honourable Court that it should
be assessed properly and the loss should be made good. The future loss of children should
also be taken into account by the Honourable Court. Minor daughter sustained injuries, she is
unable to pursue normal avocation of pursuits of life on account of the permanent
disablement to the extent of 30% of the body. She has to spend additional expenditure for
engaging the services of hired person. The tribunal has also awarded an amount for pain,
shock, and suffering, which in our opinion, is required to be upwardly revised in view of the
nature and number of injuries, the age, and the nature of household work, the restricted
movement, permanent disablement, which has not only handicapped her from the daily
9 Kumari Kiran v. Sajjan Singh, (2015)1SCC539
10 Gangadhar biswas v. State of Orissa, (1989)3 crimes 314
11 Jiju Kuruvila and Ors. v. Kunjujamma Mohan and Ors., AIR2013SC2293
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routines of life but also has caused great amount of pain, shock and suffering in past and also
will continue in future, not only cosmetically but also psychologically.
In Kumari Kiran v. Sajjan Singh12, the Honourable Supreme Court had observed the
following while deciding upon the compensation to the victims
10. It is stated that the Appellant-minors were just 10 and 15 years old at the time of the
accident. They have undergone immense physical pain and suffering as well as mental shock
and trauma at a very tender age. The trauma undergone by the Appellant-minors due to the
motor accident could have a severe and long-lasting effect. The Appellant-minors and their
parents will have to make arrangements to support their disability in the future. No amount
of monetary benefit will compensate for the suffering and pain that the Appellant-minors
have to endure to overcome the probable shackles of their disability in the future. The
Appellant-father suffers from 30% permanent disability due to the shortening of his right leg
by one inch after injuries sustained by them in the motor vehicle accident. Both the children
are suffering from permanent disability due to this motor vehicle accident. The Appellantfather has and continues to undergo loss, pain and suffering in many ways due to this
accident. Therefore, when the question of compensation arises in the case of permanent
disablement suffered by the Appellants due to a motor accident, we refer to the principles laid
down by this Court in the case of R.D. Hattangadi13wherein it was held as under:
9. Broadly speaking while fixing an amount of compensation payable to a victim of an
accident, the damages have to be assessed separately as pecuniary damages and special
damages. Pecuniary damages are those which the victim has actually incurred and which are
capable of being calculated in terms of money; whereas non-pecuniary damages are those
which are incapable of being assessed by arithmetical calculations. In order to appreciate
12 Supra 8
13R.D. Hattangadi v. M/s. Pest Control (India) Pvt. Ltd. and Others, AIR1995SC755, Arvind Kumar Mishra v.
New India Assurance Co. Ltd. and Anr., (2010)10SCC254, Raj Kumar v. Ajay Kumar and Anr. ,
(2011)1SCC343, Reshma Kumari and Ors. v. Madan Mohan and Anr.JT2013(4)SC362, Govind Yadav v. The
New India Insurance Co. Limited ( 2011 ) 10 SCC 683, Nizam's Institute of Medical Sciences v. Prasanth S.
Dhananka and Ors.JT 2009 ( 6 ) SC 651, Abati Bezbaruah v. Dy. Director General, Geological Survey of India
and Anr., AIR2003SC1817,Ramesh Chandra v. Randhir Singh and Ors., AIR1977All330

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two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical
attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far
non-pecuniary damages are concerned, they may include (i) damages for mental and
physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii)
damages to compensate for the loss of amenities of life which may include a variety of
matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii)
damages for the loss of expectation of life, i.e., on account of injury the normal longevity of
the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment,
frustration and mental stress in life.14
Therefore, quantification of damages divided under different heads as mentioned in the above
case must be very carefully observed by the courts while awarding compensation to the
victims of motor-vehicle accidents. It is extremely essential for the courts to consider the two
main components of damages i.e. both pecuniary and non-pecuniary damages as per the
guidelines laid down by the Court in the above case so that the just and reasonable
compensation is awarded to the injured.15
Furthermore, in awarding just and fair compensation 16 to the appellants, the Honourable
Supreme Court had observed
The provision of the Motor Vehicles Act, 1988 ('Act' for short) makes it clear that the award
must be just, which means that compensation should, to the extent possible, fully and
adequately restore the claimant to the position prior to the accident. The court or tribunal
shall have to assess the damages objectively and exclude from consideration any speculation
or fancy, though some conjecture with reference to the nature of disability and its
consequences, is inevitable.

14 Lim Poh Choo v. Camden and Islington Area Health Authority, (1979) 1 All ER 332.
15 State of Haryana and Anr. v. Jasbir Kaur and Ors., (2003) 7 SCC 484.
16 Mrs. Helen C. Rebello & Ors. v. Maharashtra State Road Transport Corpn. & Anr.,
AIR1998SC3191
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Thus, A person is not only to be compensated for the physical injury, but also for the other
losses which he suffered as a result of such injury.17 A person is not only to be compensated
for the physical injury, but also for the loss which he suffered as a result of such injury. This
means that he is to be compensated for his inability to lead a full life, his inability to enjoy
those normal amenities which he would have enjoyed but for the injuries, and his inability to
earn as much as he used to earn or could have earned. The object of awarding damages is to
make good the loss suffered as a result of wrong done as far as money can do so, in a fair,
reasonable and equitable manner.
In Reshma Kumari v. Madan Mohan, the Honourable Supreme Court reiterated that the
compensation awarded under the Act should be just and also identified the factors which
should be kept in mind while determining the amount of compensation. The relevant portions
of the judgment are extracted below:
"The compensation which is required to be determined must be just. While the claimants are
required to be compensated for the loss of their dependency, the same should not be
considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot
also lose sight of the fact that in given cases, as for example death of the only son to a
mother, she can never be compensated in monetary terms18.
But the court can follow the case Bhagwan v. Laxman Singh and Ors. 'so far as money can
compensate'.19
Thus, the compensation should be reasonable adequate so that it enables the victim to return
to their normal life to maximum possible extent. Obviously, the loss could not be recovered
only through monetary terms, but the Honourable Court should award compensation that
would enable the appellants to lead their lives in normal fashion.

17 Laxman v. Divisional Manager, Oriental Insurance Co. Ltd. and Anr. 2012 ACJ 191,
Gobald Motor Service Ltd. and Anr. v. R.M.K. Veluswami and Ors., AIR 1962 SC 1.
18 Supra 13, Fakkirappa v. Yallawwa and Anr. 2004 ACJ 1141
19 Jai Bhagwan v. Laxman Singh and Ors., ( 1994 ) 5 SCC 5
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In relation to appellant minors, the Honourable Supreme Court in Master Mallikarjun v.

Divisional Manager, The National Insurance Co. Limited and Anr.20 had held
8. It is unfortunate that both the Tribunal and the High Court have not properly appreciated
the medical evidence available in the case. The age of the child and deformities on his body
resulting in disability, have not been duly taken note of. As held by this Court in R.D.
Hattangadi v. Pest Control (India) Pvt. Ltd. and Ors.while assessing the non-pecuniary
damages, the damages for mental and physical shock, pain and suffering already suffered
and that are likely to be suffered, any future damages for the loss of amenities in life like
difficulty in running, participation in active sports, etc., damages on account of
inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed
especially in the case of a child victim. For a child, the best part of his life is yet to
come. While considering the claim by a victim child, it would be unfair and improper to
follow the structured formula as per the Second Schedule to the Motor Vehicles Act for
reasons more than one. The main stress in the formula is on pecuniary damages. For children
there is no income. The only indication in the Second Schedule for non-earning persons is to
take the notional income as Rs. 15,000/- per year. A child cannot be equated to such a nonearning person. Therefore, the compensation is to be worked out under the non-pecuniary
heads in addition to the actual amounts incurred for treatment done and/or to be done,
transportation, assistance of attendant, etc. The main elements of damage in the case of child
victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment
associated with healthy and mobile limbs. The compensation awarded should enable the
child to acquire something or to develop a lifestyle which will offset to some extent the
inconvenience or discomfort arising out of the disability. Appropriate compensation for
20 Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and
Anr., AIR2014SC736, Sapna v. United Indian Insurance Co. Limited and Anr., AIR 2008 SC
2281,Iranna v. Mohammadali Khadarsab Mulla and Anr., 2004ACJ1396, Kum. Michael v.
Regional Manager, Oriental Insurance Co. Limited and Anr., Madhya Pradesh State Road
Transport Corporation Bairagarh, Bhopal v. Sudhakar and Ors., AIR1968MP47 , Nagappa v.
Gurudayal Singh and Ors., AIR 2003 SC 674, K. Suresh v. New India Assurance Company Ltd. and Anr.,
(2012)12SCC27

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disability should take care of all the non-pecuniary damages. In other words, apart from this
head, there shall only be the claim for the actual expenditure for treatment, attendant,
transportation, etc.
'Money may be awarded so that something tangible may be procured to replace something
else of the like nature which has been destroyed or lost. But money cannot renew a physical
frame that has been battered and shattered. All that Judges and courts can do is to award
sums which must be regarded as giving reasonable compensation. In the process there must
be the endeavour to secure some uniformity in the general method of approach. By common
assent awards must be reasonable and must be assessed with moderation. Furthermore, it is
eminently desirable that so far as possible comparable injuries should be compensated by
comparable awards'."21
In Thomas v. British Railways Board it was observed that...the greatest element of damage in a case such as this is the pain, the suffering and the loss
of the ordinary pleasures and convenience associated with healthy and mobile limbs. All that
the court can do is to award such a sum as will enable the plaintiff to acquire some material
possessions or to develop a lifestyle which will offset to some extent her terrible disability.22
In Birkett v. Hayes the decision has been cited:
"There is nothing to guide us but the feeling of what is fair... the Judge has to award
compensation for the past and also for the future pain, suffering and loss of amenities. The
future that lies ahead, beyond the date of trial, is often of more consequence than the pas23t.
The Honourable Supreme Court in General Manager, Kerala State Road Trans. Corpn. v.
Susamma Thomas observed thus:
"Much of the calculation necessarily remains in the realm of hypothesis and in that region,
arithmetic is a good servant but a bad master since there are so often many imponderables.
In every case 'it is the overall picture that matters' and the court must try to assess as best as
21 H. West & Son Ltd. v. Shephard, 1958 ACJ 504
22 Thomas v. British Railways Board, 1977 ACJ 222
23 Birkett v. Hayes, 1983 ACJ 697
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it can the loss suffered'. 'The amount awarded must not be niggardly since the law values life
and limb in a free society in generous scales."24
This court in the case of K. Jagannath Rai v. Gangarathna C. Bai, observed thus:

"The general principle which should govern the assessment of damages in personal injury
cases is that the court should award to injured persons such a sum of money as will put him
in the same position as he would have been in if he had not sustained the injuries. This
principle is sometimes referred to as restitution in integrum. However, no award of money
can possibly compensate a man and renew a shattered human frame.25
In the case Ward v. James, it was observed thatAlthough you cannot give a man so gravely injured much for his "lost years", you can,
however, compensate him for his loss during his shortened span, that is, during his expected
"years of survival". You can compensate him for his loss of earnings 26 during that time, and
for the cost of treatment, nursing and attendance. But how can you compensate him for being
rendered a helpless invalid. He may owing to brain injury, be rendered unconscious for the
rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost
everything that makes life worth-while. Money is no good to him. Yet judges and juries have
to do the best they can and give him what they think is fair. No wonder they find it well nigh
insoluble. They are being asked to calculate the incalculable. The figure is bound to be for
the most part a conventional sum. The judges have worked out a pattern, and they keep it in
line with the change in the value of money.27

24 General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs. Susamma
Thomas and others, AIR 1994 SC 1631
25 K. Jagannath Rai v. Gangarathna C. Bai, 2004ACJ982, B.T. Krishnappa v. D.M. United
Insurance Co. Ltd. and Anr., AIR 2010 SC 2630,The Divisional Controller, K.S.R.T.C. v.
Mahadeva Shetty and Anr., AIR 2003 SC 4172, Ashwani Kumar Mishra v. P. Muniam Babu
and Ors., (1999) 4 SCC 22, West v. Shepard, 1964 AC 326,
26 Cholan Roadways Corporation Ltd., rep. by its Managing Director v. Ahmed Thambi and Ors., 2006 ACJ
2703, B. Kothandapani v. Tamil Nadu State Transport Corporation Limited, (2011)2SCC(Cri)1002

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In the case C.K. Subramonia Iyer and Ors. v. T. Kunhikuttan Nair and Ors, it had been
observed by the Honourable Supreme Court that In assessing damages, the Court must exclude all considerations of matter which rest in
speculation or fancy though conjecture to some extent is inevitable28.
Thus, it is quite clear that prospective loss29 may be taken into account and Compensation
shall be enhanced by considering all relevant factors30 .The determination of the quantum
must be liberal, not niggardly since the law values life and limb in free country in generous
scales.31

27 Ward v. James, [1965] 1 All E.R. 563, C.K. Subramania Iyer and Ors. v. T. Kunhikuttan Nair and Six Ors.,
AIR 1970 SC 376, Parry v. Cleaver, 1969 1 All.E.R. 555, Rushton v. National Coal Board, (1953) 1 All.E.R.
314, Davies v. Powell Duffryn Associate Collieries Ltd., 1942 AC 601, Baker v. Willoughby, 1970 AC 467.

28 C.K. Subramania Iyer and Ors. v. T. Kunhikuttan Nair and Six Ors., AIR 1970 SC 376
29 Taff Vale Ry. Co. v. Jenkins [1913] A.C 1, Barnett v. Cohen and Ors., [1921] 2 K.B. 461
30 Sri Nagarajappa V.The Divisional Manager, The Oriental Insurance Co. Ltd.,
AIR2011SC1785
31 Concord of India Insurance Co. Ltd. v. Nirmala Devi, AIR 1979 SC 1666
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PRAYER
Wherefore, in light of the facts presented, issues raised, arguments advanced, authorities
cited, counsels on behalf of Appellant humbly pray before this Honble Court to kindly
declare and adjudge that:
1

There had been no contributory negligence on the part of the appellants,

The compensation granted by the tribunal be enhanced by the Honourable Court as it

may deem fit.

And pass any other order which this Honble Court may deem fit in the light of justice, equity
and good conscience.
And for this act of kindness of your lordship the petitioner shall be duty bound as ever pray.

Sd. /-

(Counsels for the Appellant)

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