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LIST OF ABBREVIATIONS

1. A.I.R
2. Govt.
3. Honble
4. S.
5. Ss.
6. i.e.
7. No.
8. Pg.
9. Para
10. Sd/11. V.
12. Vol.

ALL INDIA REPORTER

GOVERNMENT
HONOURABLE
SECTION
SECTIONS
THAT IS
NUMBER
PAGE
PARAGRAPH
SIGNED
VERSUS
VOLUME

INDEX OF AUTHORITIES
STAUTES
Constitution of India
The Motor Vehicles Act, 1988
Code of Civil Procedure, 1908
Police Act, 1996
DICTIONARIES
Whartons Law Lexicon, Universal Law Publishing Co. Pvt. Ltd.
Oxford Advanced Learners Dictionary

LIST OF CASES

Ann vs Mertons

The Municipal Corporation of Greater Bombay vs Shri Laxman Iyer

The State of Kerela v. K. Cheru Babu

State of Rajasthan v. Vidyawati

Jaswanth singh v state of Rajasthan

Jiger Singh v. State of Punjab

Gujarat State Road Transport vs Ramanbhai Prabhatbhai & Anr

Malini Muralidharan Nair And Ors. vs Geetha Transport Co. And Ors.

P&O Steam Navigation Co. v. Secretary o/Slate

State of Rajasthan v. Vidyawati

Shyam Sundar v. State of Rajasthan.

Kasturi Lal v. State of UP

Union of India v. Sugrabai,.

Virendra v. State of U.P

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Saheli v. Commissioner of Police,

STATEMENT OF JURISDICTION
The Petitioner/Applicant approaches the Honble Court under Article 300(1) of the
Constitution of India and Section 166 of the Motor Vehicle Act, 1988.

STATEMENT OF FACTS

1. On 20th August at about 10:30 pm, Anuradha was driving back from a friends
place. She was slightly drunk, and was driving fast.
2. Going on her side of the road she did not notice a police jeep on night patrol
coming from the opposite direction. There was no traffic on the road at that time, and
it was dark and the street lights were not functioning. It was raining hard and visibility
on the road was very little.
3. There was an accident and the two cars collided, and Anuradha was thrown out of
the vehicle. She was not wearing a seat belt, which resulted in grievous injuries to
her. Admitted to hospital, she developed a lung infection and died on 3 rd September.
4.

She was survived by an elder brother who was shattered because of the

accident. He was of the opinion that since the police car was itself on the wrong side
of the road, the state was responsible for his sisters death.
5. He has brought an action against the state and the police vehicle driver for
damages/compensation to the tune of Rs 35,00,000.
Issues to be decided:
Jurisdiction of which court
Contributory Negligence
Quantum of Compensation

STATEMENT OF ISSUES
1. IF THE ACCIDENT WAS RESULT OF CONTRIBUTORY NEGLIGENCE OR
NOT?
2. IF THE COMPENSATION IS PAYABLE TO THE FAMILY OF THE
DECEASED OR NOT?

ARGUMENTS
ARGUMENT 1: THAT THE ACCIDENT WAS A RESULT OF NEGLIGENCE OF
THE POLICE
The police in the present situation had a legal duty to perform their functions which
has been breached thus causing injury to the victim. The elements of the case
involve:
The police have a legal duty to maintain the vehicle that is being used for the
security and welfare of the citizens of the country. If the vehicle is being used in
active duty it needs to be used in the right manner staying within the rules.
the police car was itself on the wrong side of the road and it was dark and the street
lights were not functioning. It was raining hard and visibility on the road was very little
This clearly proves that there is a breach of duty on the part of the state to ensure
that their equipment and machinery is in adequate condition to be used for public
service.
Damages the breach of duty led to the wheel coming off and the car crashing into
Anus scooter. The contributory negligence of Anu by not wearing a helmet is not the
only proximate cause for her death. The negligence of the state cannot be ignored.

Ann vs Mertons 1case of 1978 in England provides the ground rules for the present
case. The 'Anns Test' established by Lord Wilberforce is a two-stage test.

It requires first a sufficient relationship of proximity based upon foreseeability;

and secondly considerations of reasons why there should not be a duty of

care.

The defendant was on a collision course with Anuradha on the road. The defendant
was negligent in driving wrong side on a dark street with no light on a rainy night and
took no precaution to prevent an accident. The defendant owed a duty of care to the
other drivers on the road and should have ensured before the act of driving on a
wrong side on a dark and rainy night on a street with no lights.
The Municipal Corporation of Greater Bombay vs Shri Laxman Iyer 2 - The court
held that there is composite negligence on the part of the driver and that the
contributory negligence of the cyclist cannot be used as immunity for the negligence
on part of the driver.

Viewing the case from the point of view of first principles, the immunity of the Crown
in United Kingdom, was based on the old feudalistic notions of Justice, namely, that
the King was incapable of doing a wrong, and, therefore, of authorizing or instigating
one, and that he could not be sued in his own courts.
England the Crown was no longer immune from proceedings in court in regard to the
tortious acts of its servants. The Court stated 3 "It was impossible, by reason of the
maxim 'The King can do no wrong', to sue the crown for the tortious act of its
servant. But it was realized in the United Kingdom that that rule had become
outmoded in the context of modern developments in state-craft, and Parliament
intervened by enacting the Crown Proceedings Act, 1947, which came into force on

[1978] AC 728

Appeal (civil) 8424 of 2003

: (at p. 940 of AIR)

January 1, 1948. Hence the very citadel of the absolute rule of immunity of the
sovereign has now been blown up.
In India, ever since the time of the East India Company, the sovereign has been held
liable to be sued in tort or in contract and the Common Law immunity never
operated in India."
"The Court held that in an independent India, governed by a Constitution, there was
no justification for upholding the principle of immunity4 which was based on an
outmoded common law theory that no longer operated as such in the country of its
birth5
In The State of Kerela v. K. Cheru Babu6,
Sinha C. J. observed In this connection it has to be remembered that under the
Constitution we have established a welfare State, whose functions are not confined
only to maintaining law and order, but extend to engaging in all activities including
industry, public transport, state trading, to name only a few of them. In so far as the
State activities have such wide ramifications involving not only the use of sovereign
powers but also its powers as employers in so many public sectors, it is too much to
claim that the State should be immune from the consequences of tortious acts of its
employees committed in the course of their employment as such."
Hence, here in this case where a public servant was driving the police jeep will
attract vicarious liability and will make the government liable.
Also in State of Rajasthan v. Vidyawati 7 it was held that an employer will be liable
for the tortious acts of its employee. The government will be regarded as any normal
employer in this context and cannot claim immunity.
Two main points arise in this case:

Whether the patrol driver can be held liable for the negligence?

Theory of Sovereignty in Jurisprudence

The State Of Kerala And Anr. vs K. Cheru Babu on 2 November, 1977 AIR 1978 Ker 43

AIR 1978 Ker 43

AIR 1962 SC 933 (940)

The patrol driver shall be held liable for the damage caused by him. The patrolling
drivers duty was to perform the tasks given to him. He was ordered to patrol the
area and he did not diligently performing his duty without breaking any rules, But he
was on his duty and followed all the orders, the accident occurred during the course
of his work. Therefore the state is vicariously held liable for the damages caused and
will be liable for compensation.
In Jaswanth singh v state of Rajasthan where the driver who drove the jeep was
held liable for the accident which occurred when he was discharging his official
duties.

Whether the state is liable to pay all the compensation?

For every damage there should be compensation. Therefore, either the parties
involved must pay the compensation or the government will have to pay the
compensation.
Section 88 of the Police Act, 1996 says that The police chief officer for any area
shall be liable for the torts committed by a constable under his direction and control
in the performance or purported performance of their function.
The Chief Police Officer will not have to bear the damages personally; they will be
paid out of the police fund.
Jiger Singh v. State of Punjab where a government bus driver was held liable for
the accident which occurred during disposal of his official duties and the state was
vicariously held liable

Article 300- Suits and proceedings.(1) The Government of India may sue or be sued by
the name of the Union of India and the Government of a State may sue or be sued
by the name of the State and may, subject to any provisions which may be made by
Act of Parliament or of the Legislature of such State enacted by virtue of powers
conferred by this Constitution, sue or be sued in relation to their respective affairs in
the like cases as the Dominion of India and the corresponding provinces or the
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corresponding Indian Slates might have sued or been sued if this Constitution had
not been enacted.
(2) If at the commencement of this Constitution(a) Any legal proceedings are pending to which the Dominion of India is party, the
Union of India shall be deemed to be substituted for the Dominion in those
proceedings; and
(b) Any legal proceedings are pending to which a Province or an Indian State is a
party, the corresponding State shall be deemed to be substituted for the province or
the Indian State in those proceedings.
Government Liability in Tort
(a) The ruling principle is that Government is not liable for torts of its employees
committed in the course of performance of sovereign functions.
(b) The theoretical doctrine as per (a) above is still adhered to, but it is being applied
in a liberal manner and the courts interpret "sovereign" narrowly, as is shown by
recent law.
It is enough to cite the following cases of importance:(i) P&O Steam Navigation Co. v. Secretary o/Slate8,
(This was really a Calcutta ruling, reported in Ihe Bombay series).
(ii) State of Rajasthan v. Vidyawati9.
(iii) Shyam Sundar v. State of Rajasthan10.
(iv) Kasturi Lal v. State of UP11.
(v) Union of India v. Sugrabai,12.
(vi) Virendra v. State of U.P13., (Act of State).
A suit lies against the Government for wrongs done by public servants in the course
of business, such as death or injury caused to a person by Police atrocities;

8
9

(1861) 5 Bom HCR App A.

. AIR 1962 SC 933

10

AIR 1974 SC 890, paragraph 21

11

AIR 1965 SC 1039

12

AIR 1969 Bom 13

13

(1955) 1 SCR 415, 436.

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(Vii ) Saheli v. Commissioner of Police14,

ARGUMENT 2- THAT THE COMPENSATION IS PAYABLE TO THE FAMILY OF

THE DEACEASED
Section 166 in The Motor Vehicles Act, 1988
Under this section the provisions regarding application for compensation arising out
of accident of the nature specified in sub section (1) of section 165 can be made by
1. The person who has sustained the injury
2. By the owner of the property
3. Where death has resulted from the accident, by all or any legal
representatives of the deceased15
4. By any agent duly authorized by the person injured

It is humbly submitted before this Honble Court that the Petitioner is entitled to
compensation for the death of his sister.
Compensation is a pecuniary remedy that is awarded to an individual who has
sustained an injury in order to replace the loss caused by such injury. Compensation
is a concept that seeks to redress injustice or wrongdoing to a person by way of
providing him monetary help or assistance from the guilty party. Compensation is a
legal right of all those who have been wronged or suffered losses because of guilt or
lapse of another person whether it is injuries suffered from an automobile accident or
damage to the skin caused by a beauty treatment at a salon

Also according to Section 2(11) of C.P.C which gives the definition of legal
representative which states legal representative means a person who in law
represents the estate of a deceased person, and includes any person who
intermeddles with the estate of the deceased and where a party sues or is sued in a
14

AIR 1990 SC 513.

15

Malini Muralidharan Nair And Ors. vs Geetha Transport Co. And Ors. on 12 September, 2000 2002
ACJ 92

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representative character the person on whom the estate devolves on the death of
the party so suing or sued.
The sufferings of the dependents of those who are killed in motor accidents and the
survivors who are disabled are manifold. Some time these can be measured in terms
of money but most of the times it is not possible to do so. If an individual is disabled
as a result of road accident, the cost of treatment, care and rehabilitation is likely to
be very high. A victim of accident is also entitled to compensation for future treatment
if the injury sustained by him is such that it would require medical care/treatment in
future. Section 168 of the Motor Vehicles Act, 1988 provides for a just and
reasonable compensation. The expression just and reasonable denotes equitability,
fairness and non arbitrariness. The case of State of Haryana v. Jasbir Kaur and
Ors16 the Supreme Court explained that it has to be kept in view that the Court is
required to make an award determining the amount of compensation which in real
sense is damages which in turn appears to be just and reasonable. It has to be
borne in mind that loss of limbs or life cannot be weighed in golden scales. It must be
just and not a bonanza; not a source of profit.
It is the duty of the court to weigh the various factors and quantify the amount of
compensation. There is no precise mathematical formula to measure damages. In
the case of General Manager, Kerala State Road Transport Corporation v.
Susamma Thomas and Ors17, the Supreme Court laid down the principles to
determine compensation. It held that in fatal accident action, the measure of damage
is the pecuniary loss suffered and is likely to be suffered by each dependant as a
result of the death. The assessment of damages to compensate the dependants is
beset with difficulties because from the nature of things, it has to take into account
many imponderables, e.g., the life expectancy of the deceased and the dependants,
the amount that the deceased would have earned during the remainder of his life,
the amount that he would have contributed to the dependants during that period, the
chances that the deceased may not have lived or the dependants may not live up to
the estimated remaining period of their life expectancy, the chances that the
deceased might have got better employment or income or might have lost his
employment or income altogether." The matter of arriving at the damages is to
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17

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ascertain the net income of the deceased available for the support of himself and his
dependants, and to deduct therefrom such part of his income as the deceased was
accustomed to spend upon himself, as regards both self-maintenance and pleasure,
and to ascertain what part of his net income the deceased was accustomed to spend
for the benefit of the dependants. Then that should be capitalized by multiplying it by
a figure representing the proper number of year's purchase."
Again in the case of Sarla Verma v. Delhi Transport Corporation 18 the Supreme
Court held that only three facts need to be established by the claimants for
assessing compensation in the case of death : (a) age of the deceased; (b) income
of the deceased; and the (c) the number of dependents. The issues to be determined
by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be
made for arriving at the income; (ii) the deduction to be made towards the personal
living expenses of the deceased; and (iii) the multiplier to be applied with reference
of the age of the deceased. The Court held that the multiplier to be used should, start
with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years),
reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31
to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50
years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years,
M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
Further in the case of K.R. Madhusudan & Ors. v. Administrative Officer & Anr 19
the Supreme Court held that there are several imponderables and uncertainties to be
considered while determining the quantum of compensation. The age of the
deceased, the income earned by the deceased at the time of his death, the years of
service left in his working life, the increments and bonuses he might be entitled to
had he lived etc. The case of Santosh Devi v. National Insurance Co. Ltd and
Ors20 the Supreme Court observed that in cases of motor accidents the endeavour is
to put the dependants/claimants in the pre-accidental position. Compensation in
cases of motor accidents, as in other matters, is paid for reparation of damages. The
damages so awarded should be adequate sum of money that would put the party,
who has suffered, in the same position if he had not suffered on account of the
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(2009) 6 SCC 121

19

A.I.R. 2011 SC 979

20

A.I.R. 2012 SC 2185

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wrong. Compensation is therefore required to be paid for prospective pecuniary loss

i.e. future loss of income/dependency suffered on account of the wrongful act.
In the case at hand the deceased, Anuradha was young. She had several years left
to work and earn a good income. She would be entitled to increment and bonuses
had she lived. She would be entitled to an increase in income due to future
prospects. Her income would have contributed to the family income and would have
helped due to the rise in the cost of living. It is humbly submitted that this Court allow
the compensation as the Petitioner was very close to his sister and her death has
caused him a loss of love and affection. The petitioners sister died on 3 rd September,
fourteen days after she was injured grievously in the accident. The petitioner had
hoped for fourteen days that his sister would survive. The mental trauma caused to
the Petitioner has been terrible.
It is humbly submitted before this Honble Court that the compensation of Rs. 35,
00,000 be allowed to the petitioner to compensate for his loss.
Similar case for compensation :Gujarat State Road Transport vs Ramanbhai Prabhatbhai & Anr 21 on 11 May,
1987
Relatives claiming compensation for the death of their brother in an accident on the
ground that they were the heirs and legal representatives of the deceased. The
Tribunal awarded compensation to the claimants, and directed the Gujarat State
Road Transport Corporation to pay the said amount to the claimants.
We request the Honorable Court to take the facts of this case into consideration.

PRAYER
21

1987 AIR 1690, 1987 SCR (3) 404

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In the light of the issues raised, arguments advanced and authorities cited, the Counsel for
the Petitioner humbly pray before this Honble Court to kindly:
Direct the State to pay a compensation of Rs 35 lakhs to the legal
representatives of Anuradha

Or pass any other appropriate order as the court may deem fit in favour of the Petitioner
and against the Respondent.
And for this act of Kindness, the Petitioner as in duty bound, shall forever pray.

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