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

IN THE MATTER OF:

AJIT SOLANKI ..........................................................................................A PPELLANTS
V.
SHANKAR SINGH......................................................................................R ESPONDENTS

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 RESPONDENT

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TABLE OF CONTENTS

Contents
LIST OF ABBREVIATIONS.........................................................................................................3
INDEX OF AUTHORITIES..........................................................................................................4
STATEMENT OF JURISDICTION................................................................................................5
STATEMENT OF FACTS.............................................................................................................6
STATEMENT OF ISSUES.............................................................................................................7
SUMMARY OF ARGUMENTS.....................................................................................................8
ARGUMENTS ADVANCED..........................................................................................................9
I.

THE TRACTOR DRIVER IS NOT GUILTY U/S 279, 337 AND 338 OF IPC, 1860.........9

II.

THE APPELLANT WAS LIABLE FOR NEGLIGENCE...................................................10

III.

THE COMPENSATION AWARDED SHOULD BE SET ASIDE ........................................13

PRAYER....................................................................................................................................16

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LIST
&

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

OF

ABBREVIATIONS

And
Section
And others
Others
All India Reporter
Article
that is
Page
Supreme Court
Versus

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INDEX

OF

AUTHORITIES

CASES CITED
CASE NAME

S.NO
1.
2.
3.
4.
5.
6.
7.
8.

PAG
E

State of Karnataka v. Satish (1998) 8 SCC 493 : 1998 SCC (Cri) 1508
Tamil Nadu State Transport Corporation Ltd. v. Abdul Salam and Ors.
Blyth v. Birmingham Waterworks Co., 1856 (11) Ex. 781
Gujarat State Road Transport Corporation v. Kamlaben Valjibhai Vora
National Insurance Co. Ltd. v. Smt. Uma Devi Tiwari and Ors. (2007) (1)

10
11
11
11
12

MANISA (M.P.)
Kanti Devi Sikarwarand Ors. v. Om Prakash and Ors. 2007 (1)

12

MPWN88:2007(1) MPH7 447

Commissioner for Executing Office of Lord High Admiral of United 13
Kingdom v. Owners of S.S. Volute
Manjula Devi Bhuta v. Anr.

v.

Manjusri

Raha

and

Ors. 13

MANU/MP./0109/1967MANU/MP/0109/1967 : 1968 A.C.J.

BOOKS CITED AND REFERRED

S.N.

BOOKS

S.N.

BOOKS

1.

HALSBURY'S LAWS OF ENGLAND , (4TH ED., LEXISNEXISBUTTERWORTHSWADHWA,

2.

2013).
JUSTICE Y V CHANDRACHUD & V R MANOHAR, THE INDIAN PENAL CODE, (31ST

3.

ED., RATANLAL AND DHIRAJLAL, 2007)

LAWMANNS BHARGAVAS MOTOR VEHICLES LAWS, (KAMAL PUBLISHERS, NEW

4.

DELHI, 2009)
UTPAL RANJAN SARKAR, MOTOR ACCIDENTS MOTOR INSURANCE CLAIMS

5.

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

VISHWAS SHRIDHAR SOHONI, THE INDIAN PENAL CODE, (VOL. II, PEMIER

6.

PUBLISHING COMPANY, 2011)

N. VIJAYARAGHAVAN, MOTOR ACCIDENTS CLAIMS, (2ND ED., ASSOCIATED BOOK
COMPANY, 2005)

DATABASES REFERRED
1.

http://www.manupatra.com
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2.
3.

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 hounourable 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 1731 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 ACCIDENTAfter 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, and 338. A
claim petition was filed in the Motor Accidents Claims 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

I.

OF ISSUES

ISSUE 1: WHETHER THE RESPONDENT IS GUILTY UNDER SECTIONS 279, 337,

AND 338 OF INDIAN PENAL CODE, 1860

II.

ISSUE 2: WHETHER THE APPELLANT WAS LIABLE FOR CONTRIBUTORY

NEGLIGENCE

III.

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 NOT GUILTY U/S 279, 337 AND 338 OF IPC, 1860

The allegations against the respondent 1 are groundless and not endorsed by any
evidence. The respondent is falsely charged under section 279, 337 as well as 338. The
tractor driver was not driving rashly or negligently on the contrary, he was careful while
driving the vehicle. Absence of any kind of evidence to prove that he was rash or
negligent negates section 279 charged against him. The tractor driver did not do any act
that caused hurt by endangering life or personal safety of others. The accident was caused
due to the negligence shown by the appellants. Therefore, charged under section 279, 337
and 338, are all falsely charged against him.
II.

THE APPELLANT IS LIABLE FOR NEGLIGENCE

It is submitted to the Honourable Court that the appellants are responsible for the accident
that had taken place. The motor cycle driver was carrying two passengers as pillion riders
and so it can be safely assumed that he did not have full control over the vehicle. due to
which, the collision had taken place. Furthermore, the condition of the motor cycle of the
appellant was also not proper. Had the motor cycle been maintained properly, then the
accident could have been avoided by the appellants. Therefore, the appellant should be
held liable by the Honourable Court on the grounds of the evidence produced.
III.

THE COMPENSATION AWARDED SHOULD BE SET ASIDE

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
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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.

ARGUMENTS ADVANCED
IV.

THE TRACTOR DRIVER IS NOT GUILTY U/S 279, 337 AND 338 OF IPC, 1860.

Respondent 1 is charged with section 279 of the IPC, 1860, which defines under which
circumstances can a person be liable for rash and negligent driving 2. According to the
definition, Shankar Singh, the tractor driver is not liable for rash and negligent driving.
Merely by virtue of being the driver of the heavy vehicle does not make him liable for
negligence. The motor cycle driver was carrying 2 passengers as pillion riders which led to
the accident. As to a prudent man, its reasonable that it requires extra care on the part of the
rider which was clearly absent in the present case. It is not reasonable for the tractor driver to
know the consequences such nature. Thus to make the driver for causing the accident is
grossly unjust to the respondents. Thus the drive is falsely charged with section 279 of the
IPC, 1860.
Section 337 of the IPC, 1860 talks of an act done so rashly or negligently and thus causing
hurt by endangering life or personal safety of others, which is not applicable to the present
case in hand. The tractor driver was not driving rashly and negligently, and there is no
evidence to support the same. Burden lies on the appellants to bring on record material to
establish the negligent or rash driving. in the absence of any material on record, on
presumption of rashness or negligence can be drawn by invoking the maxim res ipsa
loquitur to hold the accused guilty3.
Section 338 also does not apply to the present case. Section 338 talks of grievous hurt caused
due an act done so rashly or negligently as to endanger human life, or personal safety of
others, which is absent in the instant case. As submitted before, the tractor driver was neither
rash nor negligent while and thus the elements of section 338 do not fit in this case. Thus,
2 Section 128 - Safety measures for drivers and pillion riders
3 State of Karnataka v. Satish, (1998) 8 SCC 493 : 1998 SCC (Cri) 1508

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none of the sections that the respondents are charged with, are rightly applied and the
respondents should be vindicated of the same.
V.

THE APPELLANT WAS LIABLE FOR NEGLIGENCE

The counsel humbly submits to the court that the respondents should not have been held
liable for any negligence on the contrary, the appellants are liable for the accident caused due
their negligence. Section 128 of the Motor Vehicle Act states
128. Safety measures for drivers and pillion riders.
(1) No driver of a two-wheeled motor cycle shall carry more than one person in addition to
himself on the motor cycle and no such person shall be carried otherwise than sitting on a
proper seat securely fixed to the motor cycle behind the drivers seat with appropriate safety
measures.
(2) In addition to the safety measures mentioned in sub-section (1), the Central Government
may, prescribe other safety measures for the drivers of two-wheeled motor cycles and pillion
riders thereon.
The non obedience of this act clearly means that the motor cycle rider was negligent in riding
his bike with two pillion riders at the back. He should have been extra cautious having two
pillion riders. Had he been more cautious as required, he would have seen the tractor coming
from a distance and then he would have avoided the accident. The respondents should not be
held guilty of negligence. In Tamil Nadu State Transport Corporation Ltd. v. Abdul Salam
and Ors.,4 the division bench of Madras High Court had held that motor cycle and any other
two wheeler is meant only for two persons, the rider and pillion rider and if more than two
persons travel on a motor cycle, undoubtedly, such action if the individual would become
illegal and unauthorised and the rider of the two wheeler cannot have completed control over
the vehicle. Therefore, in the instant case wherein the motor cycle driver had two passengers
as pillion riders, did not have full control over the vehicle thus, it led to the accident. Insofar
as the expression negligence, it is well expounded and propounded in Blyth v. Birmingham
Waterworks Co.5,

4Tamil Nadu State Transport Corporation Ltd. v. Abdul Salam and Ors.
5Blyth v. Birmingham Waterworks Co., 1856 (11) Ex. 781
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"Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do."

The counsel submits that the decision taken by the tribunal stating 50% contributory
negligence on the part of the respondents was erred. In a Gujarat State Road Transport
Corporation v. Kamlaben Valjibhai Vora6 case, the Honourable Supreme Court had held that,
15. Negligence is often used in the sense of careless conduct without reference to any duty to
take care. The use of the term in this sense has introduced some confusion into the subject,
and has tended to obscure the true meaning of negligence as a part of law of tort. When there
is a duty to take care, the standard of care is, frequently, that of the reasonable man, although
this is not always so, and consequently, failure to take reasonable care and negligence are
sometimes used as synonymous terms regardless of whether or not there is any duty cast.
Thus, for prudent man, it is not possible to predict for a tractor driver to foresee the accident.
He took all the reasonable care and was not negligent while driving the tractor, also there is
no evidence to counter this.
Furthermore, the study conducted by Forensic scientists and experts also substantiates the
point that the respondent was not guilty of negligence. According to the report, the coming off
of the front wheel is a very rare event to happen and thus it would not have happened had it
not been for the absence of maintain the motor cycle properly. The wheel had come off due to
the rusting of the bolt, or the studs of the tyre of the motor cycle being old. Thus the
appellants had failed to take proper care of the motor cycle and thus are responsible for the
accident to occur.
In arguendo, if negligence is attributable to respondents in form of contributory negligence,
then it should be much lesser that 50% in this case. The negligence shown by the appellants
and alleged negligence on part of the respondents are not proportionate and should not be
attributed 50% on both. The appellants had been negligent in the instant case and should be
held responsible for the accident caused.In National Insurance Co. Ltd. v. Smt. Uma Devi

6Gujarat State Road Transport Corporation v. Kamlaben Valjibhai Vora

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Tiwari and Ors.,7 the rider who was driving with other pillion riders was held liable for
negligence and thus the contributory negligence stated by the Tribunal was reduced to 70:30
from 50:50 proportion. In T.O. Anthony v. Karvavnan and Ors. 8, it was held that where the
injured is himself partly liable, the principle of composite negligence will not apply or can
there be an automatic inference that negligence was 50:50. In the instant case, the negligence
attributed by the Tribunal was 50:50 on the presumption merely that the respondent was
negligent while driving. Therefore, the contributory negligence attributed to the respondents
should be reduced, if not set aside by the Honourable Court.
In Kanti Devi Sikarwarand Ors. v. Om Prakash and Ors. 9, it was held by the High Court of
Madhya Pradesh that section 128 of the Motor Vehicle Act bars riding of more than one
pillion rider on the motor cycle and in that case the rider who was driving teh motor cycle in
violation of the provisions of section 128 of the act was held guilty of contributory
negligence.
As propounded by Viscount Birkenhead L.C. in Commissioner for Executing Office of Lord
High Admiral of United Kingdom v. Owners of S.S. Volute10,
Upon the whole I think the question of contributory negligence must be dealt with somewhat
broadly and upon common-sense principles as a jury would probably deal with it. And while
no doubt, where a clear line can be drawn, the subsequent negligence is the only one to
lookto, there are cases in which the two acts come so closely together, and the second act of
negligence is so much mixed up with the state of things brought about by the first act, that the
party secondly negligent, while not held free from blame...might on the other hand invoke the
prior negligence as being part of the cause of the collision so as to make it a case of
contribution.

7National Insurance Co. Ltd. v. Smt. Uma Devi Tiwari and Ors., (2007) (1) MANISA (M.P.)
8T.O. Anthony v. Karvavnan and Ors.
9Kanti Devi Sikarwarand Ors. v. Om Prakash and Ors., 2007 (1) MPWN88:2007(1) MPH7 447
10Commissioner for Executing Office of Lord High Admiral of United Kingdom v. Owners of
S.S. Volute

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In the instant case, even if we consider that contributory negligence can be attributable to the
respondents, then the compensation awarded by the tribunal should be set aside by the
Honourable High Court and the amount should be further reduced.
The principle of contributory negligence has also been recognized by the Courts in India in
Manjula Devi Bhuta v. Anr. v. Manjusri Raha and Ors.11 A division bench of the Madhya
Pradesh had held that it is now well settled that in case of contributory negligence, courts
have powers to apportion the loss between the parties as seems to it just and equitable, and
apportionment in that context means that damages are reduced to such an extent as the Court
thinks just and equitable having regard to the claim shared in the responsibility for the
damage. Therefore, in the present case, the Honourable High Court should reduce the
compensation as it deems fit for justice, if not deny it.

VI.

THE COMPENSATION AWARDED SHOULD BE SET ASIDE

It is humbly put to the Honourable Court that the compensation awarded by the tribunal
should be cancelled by the Court due to its unjust nature. The counsel had stated various
reasons proving that there was no negligence on the part of the respondents and on the
contrary, the appellants alone are responsible for the accident caused. Thus there is no support
for the compensation to be upheld by the Court.
Furthermore, the compensation awarded to the appellant daughter and son is not justifiable at
all. The counsel submits that the parameters set by the tribunal are not clear, the appellant
daughter and son, aged 13 and 10 respectively, are not earning members, and thus the
compensation awarded to them is very large and is not proportionate at all. The sum of
772,672 compensated to the daughter is not reasonable and should be denied upright by the
Honourable Court.
In arguendo, if the alleged negligence is proven on part of the respondents, the Honourable
High Court should lessen the amount of compensation. The compensation awarded to the
appellants are grossly unjust to the respondents and the High Court should do justice to the
respondents and if not cancel, then reduce the amount of compensation.
Thus it is humbly submitted to the Court that the decision taken by the tribunal should be
reversed and the compensation awarded should be cancelled.
11Manjula Devi Bhuta v. Anr. v. Manjusri Raha and Ors.,
MANU/MP./0109/1967MANU/MP/0109/1967 : 1968 A.C.J. 1.
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PRAYER
Wherefore, in light of the facts presented, issues raised, arguments advanced, authorities
cited, counsels on behalf of Respondents humbly pray before this Honble Court to kindly
declare and adjudge that:
1

There had been no negligence on the part of the Respondent,

The trial court erred in granting compensation to Appellant,

Put a stay on the judgement of the Tribunal.

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. /-

(Counsel for the Respondent)

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