Shri I.M.

Nanavati Memorial Moot Court

Competition

Memorandum on behalf of the Appellants

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 Shri I.M.Nanavati Memorial Moot Court Competition

IN THE HON’BLE HIGH COURT OF GUJARAT

THE APPEAL FILED UNDER SECTION 173(1) OF Motor Vehicles Act 1988

IN First APPEAL NO: ____/ 2015

IN THE MATTER OF

MR. Ajit Solanki ...APPELLANT

MS. Anu Solanki

MR.Anand Solanki

V.

MR. Shanker Singh ...RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

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 Shri I.M.Nanavati Memorial Moot Court,2015

Table of Contents

LIST OF ABBRIVIATIONS.......................................................................................3-4

INDEX OF AUTHORITY .........................................................................................4-8

STATEMENT OF JURISDICTION............................................................................9-10

STATEMENT OF FACTS..........................................................................................10-11

ISSUES FOR CONSIDERATION............................................................................11-12

SUMMARY ADVANCED.....................................................................................12-13

SUMMARY OF ARGUMENTS..............................................................................13-19

1) Was there any contributory negligence on the part of the Appellants?

2) Whether the Claim tribunal has wrongly appreciated the evidence on record?

3) Was the tribunal erroneous in awarding compensation?

PRAYER...............................................................................................................19-20

SHRI I.M NANAVATI MEMORIAL MOOT COURT

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LIST OF ABREVATION

AIR All India Reporter

Anr. Another

HON’BLE HONOURABLE

i.e That Is

Ors Others

SCC Supreme Court Cases

U/S Under Section

V. VERSUS

WWW WORLD WIDE WEB

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 Shri I.M.Nanavati Memorial Moot Court,2016

INDEX OF AUTHORITIES

SR NO. Cases and citations

1 Ashvinbhai Jentilal Modi v. Ramkaran Ramchanra Sharma

(2015) 2 SCC 180

2 Suresh Yallapa Patil Vs GM KSRTC 2002 SCC 406y

3 Shaligram Ramji Dhekale Vs Ravindra Maniko Khadse 2009 SCC

Online BOM 1936

4 Sarla Verma & Ors Vs Delhi Transport CORP & ANR (2008) SCC 756

5 Mera Devi & Anr VS HRTC & ORS AIR 2014 SC 1881

6 Kalpanraj Ors vs Tamil Nadu State Corpn AIR 2014 SC 22

7 Sanjay Kumar Vs Ashok Kumar AIR 2015 SC 1052

8 Dinesh Singh Vs Bajaj Allianz General Insurance Co ltd AIR 2014 SC

1709

9 Master Mallikarjun Vs Divisional Manager National Insurance Co ltd

AIR 2014 SCC 736

10 Sanja Verma Vs Haryana Roadways AIR 2014 SCC 995

11 Reka Jain Vs National Insurance Co ltd AIR 2013 SC 3429

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12 MD Jacob Vs United India Insurance ltd AIR 2014 SCC 988

13 Syed Sadiq Vs Divisional Manager United Insurance Co AIR 2014 SC 1052

14 S Manikchand Vs Matropoliton Transport AIR 2013 SC 2629

15 G Ravindranath alias R Chaudary Vs E Srinivas AIR 2013 SC 2974

16 Neerupam Mohan Mathur Vs New India Insurance co AIR 2013 SC 3429

17 D Smpath Vs United Insurance Co ltd AIR 2012 SC 544

18 V Mekala Vs M. Malathi AIR 2014 SC(Supp)22

19 Mohan Soni Vs Ram Avtar Tomar AIR 2012 SC 789

20 Kavita Vs Deepak & ORS AIR 2012 SC 2893

21 New India Assurance Co ltd Vs Goplani AIR 2012 SC 3381

22 N Suresh Vs Yusuf Shariff AIR 2012 SC 3431

23 Ram Chandrappa Vs The Manager Royal Sundarban Alliance Insurance Co

ltd AIR 2011 SC 2951

24 BT Krishnappa Vs SDM United Insurance ltd AIR 2010 SC 2630

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25 Mohan Soni v. Ram Avatar Tomar 2012(0) GLHEL-SC 50818

26 Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1SCC 289

27 Raj Kumar v. Ajay Kumar and another,(2011) 1SC343

28 Sundara Shetty v. K. Sanjiva Rao and Ors AIR 1982 Kant 84

29 Kapil Kumar v. Kudrat Ali AIR 2002 SC 1813

30 Sanjay Kumar v. Ashok Kumar & Anr AIR 2014 SC (Supp)1584

31 Pramod Kumar Rasik bhai jahaveri v. Karmasey Kunvargi Tak 2002

SCC(Cri)1355

32 Jiju Kuruvila & Ors v. Kunjujamma Mohan 2013 SCC 4947

33 United insurance v. Santosh Devi (2014)ACC762(Raj.)

34 National Insurance company v.Kastoori Devi &Ors and Shyama Devi &
Ors MANU/RH/0846/1987

35 National Insurance Co. Ltd. v. Ramilaben Chinubhai Parmar , 2007 ACJ

1565 (Guj) DB

36 National Insurance Co. Ltd. v. Akhilesh Dwivedi, 2007 (4) ACC 312 (MP)
DB

37 Devi Singh v. Vikram Singh, 2008 ACJ 393

38 Ahmedabad Muncipal Corporation v. Narendrabhai Lalbhai Shah, 2010

ACJ 15

39 R.K. Malik v. Kiran Pal 2009 14 SCC 1

40 Heer Singh & Ors. v. Jai Singh & Ors. I (2005) Acc 718 Rajasthan

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 Shri I.M.Nanavati Memorial Moot Court

BOOKS AND WEBSITES

Websites

1. WWW.SUPREMECOURTCASES.COM

2. WWW.INDIANKANOON.COM

3. WWW.MANUPATRA.COM

4. WWW.SCCONLINE.COM

5. WWW.AIR.COM

6. WWW.ADVOCATEKHOJ.COM

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 Shri I.M.Nanavati Memorial Moot Court

BOOKS

S.R NO BOOKS

1 R.K Bangia Law of torts

2 Ratanlal and Dhirajlal Law of torts

3 Avtar Singh Law of Torts

4 Assessment of Compensation under Motor Vehicle Act 1988 D.r G.S Karkara

5 Motor Vehicle Act 1988

6
PANDECT on Issues Relating to Compensation Under the Motor Vehicles
Act, 1988

By Justice J.P Singh

7 Enhancement of Compensation Under Motor Vehicles Act, 1988 by Dr.

N.Maheshwara Swamy

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 Shri I.M.Nanavati Memorial Moot Court

Statement of Jurisdiction

Under Section 173 of Motor Vehicle Act the honourable High court of Gujarat has

Jurisdiction to entertain the present appeal.

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 Statement of Facts

July 4,2009 Anu, a minor girl aged 13 and her little brother Anand
aged 10(the pillion riders) were going on the motor cycle
to their village Halol from Ahmedabad with their father
Mr. Ajit Solanki aged 35 years riding the motor cycle
no- GUI 9168.While riding the motor cycle on the road a
tractor baring number GJ-1-K 2013 driven Shanker
Singh collide with the motor cycle exactly at the middle
of the road.
Because of the rash and negligent driving of the driver of
tractor,the accident took a tragic turn. In the collision,
the front wheel of the motor cycle was separated from
the body of the motor cycle. In the collision with such a
big vehicle coming at a faster speed, appellant lost his
control and fell down along with his kids and they all
sustained injuries. All three of them were taken to the
nearest hospital at Halol.

After medical examination, it was concluded that the

minors had multiple fractures on their body. The
appellant and his children were taken to Civil Hospital,
Sola where they had to undergo surgeries. It was opined
by Dr. Hitesh Shah, Orthopedic Surgeon that the
appellant had severe head injuries and had 50%
permanent disability where as the minor daughter had
30% permanent disability and his minor son had 20%
permanent disability.

A first information report was lodged in Halol Police

Station against the driver under sections 279,337 and 338
of the IPC,1860.

The appellant filed the claim petition before the Motor

September 18,2010 Accidents Tribunal, Ahmedabad. He claimed the
compensation for disability of himself and his children
and stated his current income to be Rs 21,00,000 per
annum of which he was earning Rs 6 Lacs from
Carpenter business and 15 lacs from agriculture. He also
produced Income Tax returns filed for year 2007-
08,2008-09 and 2009-10 showing his income to be Rs 12

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 Lacs, Rs 15 Lacs and Rs. 19 Lacs respectively.

The appellant owned a small piece of land at Dholka on

which he took crops twice a year.

August 16,2015 The Tribunal after considering the facts, evidences

produced on records by its decision apportioned
contributory negligence at 50% on the part of appellant
father who was riding the motor cycle and 50% on the
driver of the tractor.

November 23,2015 Being aggrieved by the erroneous award passed by the

Tribunal, the appellants filed an appeal before the
Hon’ble High Court of Gujarat, Ahmedabad for getting
just compensation.

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 Shri I.M.Nanavati Memorial Moot Court

Statement of Issues

In the present appeal the following issues may be considered and decided by honourable
High court:-

ISSUE 1:

Whether there was any contributory negligence on the part of the Appellants?

ISSUE 2:

Whether the Claim tribunal has properly appreciated the evidence on record?

ISSUE 3:

Whether the Claims tribunal has awarded just and fair compensation?

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 Shri I.M.Nanavati Memorial Moot Court

SUMMARY ADVANCE

1) Whether there was any contributory negligence on the part of the Appellants?

The tribunal has wrongly considered it to be a contributory negligence without any cogent
evidence .The appellant was at no fault while driving his motor bike also the wheels of the
motor cycle came out due to momentum of a such a huge vehicle which comes under the
ambit of heavy vehicle u/s 2 (16) of motor vehicles act 1988. The pillion riders where the
children of appellant and it is reasonable that a man having motorcycle will take his children
in same vehicle in which he is travelling there is no FIR filed against the appellant.

2) Whether the claim tribunal has wrongly appreciated the evidence on record?

The insurance company has given facts which are not at all relevant to the following case as
it states that accident might occur due to wheels coming out but in the present case the
accident has occurred the wheels came out due to the accident between tractor and motor
bike and not because wheels coming out

3) Whether the tribunal has awarded just and fair compensation?

The claim tribunal has wrongly calculated the multiplier and also not considered the future
prospects of the appellant and his children who suffered multiple injuries. The appellant's son
being 20% permanent disable will have difficulties not only as a child but also as an adult,
also the appellant’s daughter who has suffered 30% disability will have many problems in
future in many ways like marriage , educations, social life.

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 Shri I.M.Nanavati Memorial Moot Court

ARGUMENTS ADVANCED

It is humbly submitted that,

1) Whether there was any contributory negligence on the part of the Appellants?

1.1 In this case the Claims Tribunal wrongfully observed that there was 50%
contributory negligence on the part of the Appellants

It is not possible for the scooterist to take his scooter on extreme left of the
road. Accident by bus. The bus driver is solely responsible for the accident. K.
Jagannath Rai v. Gangarathana C. Bai1

The Hon’ble Supreme Court of India in a recent judgement Pramod Kumar Rasik Bhai
jahaveri v. Karmasey Kunvargi Tak 2 propounded that “If the offending vehicle comes in the
lane of the lane of the vehicle coming from opposite side and causes the accident, the plea
that the victim could have avoided the accident by taking his own vehicle on extreme left side
of the road and hence, is contributory negligent, is not maintainable” .

Bus and tampto as vehicles – accident on the central line tampo came in the center in an
attempt to cross the motor cycle. Bus driver and tempto driver negligent to the extent of 75%
and 25% respectivily. B.S. Chandrappa v. Kumari Shobha3, 3(2003) ACC 688
(Karnataka).

In National Insurance Co. Ltd. v. Akhilesh Dwivedi 4 A truck while overtaking a bus came
to its wrong side and collided with a motorcycle. Deceased Motorcyclist was driving on his
correct side with moderate speed and could not move to further left because of ditches and
boulders. Truck driver was alone held rash and negligent in driving.

In this case the tractor driver failed to observe care which is expected from the driver of the
heavy vehicle5. The tractor was being driven in a rash and negligent manner resulting into

1 2(2004) ACC 811 (Karnataka

2 2002 SCC (Cri.) 1355: AIR 2002 SC 2864.

3 www.vakilno1.com

4 MADHYA PRADESH HIGH COURT 2007 (4) ACC 312 (MP) DB

5 (1996 ACC 254: 1996 SCC (Cri.) 223: 1(1996) ACC 522.

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collision with the motor bike which was driven at a moderate speed also, heavy vehicle
occupy huge space of the road and therefore it must be driven with extreme caution.

Shri I.M.Nanavati Memorial Moot Court

1.2 No cogent evidence to prove appellent was negligent

The court held in Mera Devi & Anr VS HRTC & ORS 6 that to prove the contributory
negligence, there must be cogent evidence. In the instant case, there is no specific evidence to
prove that the accident has taken place due to rash and negligent driving of the appellent. In
the absence of any cogent evidence to prove the plea of contributory negligence, the said
doctrine of common law cannot be applied in the present case.

1.3 Two minor pillion riders

In Devi Singh v. Vikram Singh it was held by Full Bench of Madhya Pradesh High Court
that simply because deceased and other 2 persons were sitting on a scooter, that itself does
not fasten them with the responsibility of negligence in driving.

In similar case of Ahmedabad Muncipal Corporation v. Narendrabhai

Lalbhai Shah7 Gujarat High Court held the same that simply because deceased and other 2
persons were sitting on a scooter, that itself does not fasten them with the responsibility of
negligence in driving.

Pillion rider cannot be attributed any sort of negligence and he is third party was held in Heer
Singh & Ors. v. Jai Singh & Ors. I (2005) Acc 718 by Rajasthan High Court

The Court observed8Motorcycle with two persons as pillion riders is surly A breach of safety
measures But, may not amount to “negligence” on part of driver, unless such negligence was
partly immediate cause of accident therefore the appellent does not contribute to negligence

.1.4 No FIR Against the appellent

6 AIR 2014 SC 1881

7 2008 ACJ 393

8 Branch Manager, New India Assurance Co. Ltd., No. 105, Railway Station Road, Tirupattur, Vellore District
v.Malliga. 2. Kavitha Lakshmi. 3. R. Pannerselvam

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The appellants had also filed an FIR u/s2799,33710 and 33811 of penal code and upon
conclusion of investigation, having found substance in the complaint, the police had filed the
charge sheet. It is pertinent to note that no such complaint was filed against the driver of the
motorbike. It is also required to be noted that the driver of the tractor has not entered the
witness box to counter the allegation of rash and negligent driving against him.

Shri I.M.Nanavati Memorial Moot Court

In view of this, the tribunal has wrongly attributed 50% contributory negligence to the
appellant who was driving the motorbike

2) Whether the claim tribunal has wrongly appreciated the evidence on record?

2.1The Insurance company has provided irrelevant and misleading evidence.

Motor vehicles act 1988 section2 (16)“heavy goods vehicle” means any goods carriage the
gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of
which, exceeds 12,000 kilograms;

The insurance company stated that the cases of the wheel of the motor cycle coming off in an
accident are very rare. 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 but from the facts it is clear that due to collision of tractor12 the front wheel of the
motor bike came out rather not because the of wheels coming out the accident took place

2.2 The evidence provided by the experts of the insurance company can't be relied upon
as they are highly interested.

9Rash driving or riding on a public way IPC

10 Causing hurt by act endangering life or personal safety of others IPC

11 Causing grievous hurt by act endangering life or personal safety of others

12 Section 2(16) in The Motor Vehicles Act, 1988(16)

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The insurance company has not conducted any type of research of appellants motor cylce,also
there are many instances of insurance company providing irrelevant and misleading
evidences and thus the tribunal has not considered the cogant and convincing oral and
documentary evidence on record to show absolute negligence on the part of driver of the
tractor and which will also show that the appellants are entitled to much more competition
than what is awarded by the tribunalThe insurance company wants to cook up false evidence
to reduce the compensation.

The tribunal has failed to consider and appreciate the income tax returns which were
produced on record by the appellants to prove the loss of income suffered by them on
account of the accident.The tribunal ought to have drawn the adverse inference against
the driver of the tractor as he had not entered the witness box to counter the allegation of
negligence on his part.

Shri I.M.Nanavati Memorial Moot Court

3) Whether the tribunal has awarded just and fair compensation?

In R.K. Malik v. Kiran Pal13

“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 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. However, no amount of compensation can restore the lost limb or the experience of
pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated
or ameliorated completely.

To put it simply—pecuniary damages cannot replace a human life or limb lost. Therefore,
in addition to the pecuniary losses, the law recognises that payment should also be made
for non-pecuniary losses on account of, loss of happiness, pain, suffering and expectancy
of life, etc. The Act provides for payment of “just compensation” vide Sections 166 and
168. It is left to the courts to decide what would be “just compensation” in the facts of a
case.”

13 (2009) 14 SCC 1

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3.1 The tribunal has awarded the compensation too much on the lower side contrary to
the settled principles of law and evidence on record

The tribunal has failed to appreciate that the Appellant, the owner of motorbike was engaged
in Carpentering and in farming which require personal skill and manual labour. On account
of 50% permanent disability suffered by him, his earning capacity out of the aforesaid two
occupations was seriously impaired according to SUPREME COURT judgement14 some
skilful works carpentry and agriculture requires 100% mobilty which is not possible after
50% permanent disability

Shri I.M.Nanavati Memorial Moot Court

I. Also The court held PERMANENT DISABILITY IS equivalent to loss of

livelihood in a judgement15 in which a carpenter who suffered an amputation of

II. his left arm from the elbow was held to have suffered complete loss of his earning
capacity.

III. BRAIN INJURY TO APPELLENT IS IGNORED

In a more recent decision16 , this Court considered in great detail the correlation
between the physical disability suffered in an accident and the loss of earning
capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj
Kumar. THUS brain injuries also causes memory loss17

3.2The tribunal has not considered the income Tax returns which were duly verified by
the income Tax Authority to arrive at appropriate amount towards loss of income.

According to the court in Mera Devi & Anr VS HRTC & ORS18 It is pertinent to note that
the only available documentary evidence on record of the monthly income of the deceased is
the income tax return filed by him with the Income Tax Department also ,The tribunal has not

14 Syed Sadiq Vs Divisional Manager United Insurance Co AIR 2014 SC 1052

15 Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1 SCC 289

16 Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343

17 Sundara Shetty vs K. Sanjiva Rao And Ors

18 AIR 2014 SC 1881

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applied the multiplier as per the principles laid down in the landmark decision of the apex
court in Sarla Verma case19 .

3.3The tribunal has not considered the future prospects of the owner of the motorbike
while calculating the loss of income.

Although, the wages/income of those employed in unorganized sectors has not registered a
corresponding increase and has not kept pace with the increase in the salaries of the
Government employees and those employed in private sectors but it cannot be denied that
there has been incremental enhancement in the income of those who are self-employed and
even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial
notice of the fact that with a view to meet the challenges posed by high cost of living, the
persons falling in the latter category periodically increase the cost of their labour.

Shri I.M.Nanavati Memorial Moot Court

AND court must consider a point that a carpenter who could earn 6 lacs per annum must be
so skilful and brilliant and expert in his job at an age of 35 and carpentry is such a job which
brings more income with the increase in experience and practice.

3.4 The tribunal has awarded much less amount of compensation to the minors
contrary to the principles laid down by the apex court

Both the minors are given less compensation then principles laid down and future prospects
is not considered also such disability suffered by them in tender age will be an obstacle in
their school and college life as per as judgment20 the court held that The boy who suffered
disability in an accident will not be able to lead a normal life even after he becomes an adult
The tribunal has not awarded any compensation towards medical expenses and 100% loss of
income during the course of hospitalisation.

The tribunal has not awarded any compensation towards pain, shock and suffering undergone
by the injured occupants of the motorbike.

19 sarla Verma & Ors v. Delhi Transport Corp & Anr (2008) SCC 756
20 Sundara Shetty vs K. Sanjiva Rao And Ors. on 29 June, 1981

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 3.5 The tribunal has awarded the interest at 6% only instead of 9% as per the recent
judgements of the Apex Court21

The Supreme Court held in Santosh Devi v. National Insurance Co. Ltd that proper interest
would be 9% p.a.--In view of Section 171 and observation of Supreme Court--Tribunals and
Courts to decide rate of interest after taking into consideration rate of interest allowed by
Supreme Court in similar case and other factors such as inflation, change in economy, policy
adopted by Reserve Bank of India from time to time and period since when case is pending.

21 Santosh Devi v. National Insurance Co. Ltd., (2009) 4 SCC 513

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 Shri I.M.Nanavati Memorial Moot Court

Prayer

The appellants therefore pray that,

A) Your Lordships be pleased to grant appropriate enhancement in the compensation

awarded by the tribunal in the light of the grounds and contentions raised in the
present appeal and be pleased to direct the respondents to pay the additional amount
of compensation with 9% interest.

B) Your Lordships be pleased to grant such other and further reliefs as may be
deemed fit in the interest of justice.

Date

Place (Advocate for the Appellants)

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