L.S. Panta JUDGMENT
S.B. Sinha, J.
1. Leave granted.
2. Appellant was driving a two-wheeler bearing registration No. DL-45 AQ 0731 on 30.10.2003. He was aged about 17 years. He met with an accident, as allegedly respondent No. 1 was driving a mini-truck rashly and negligently. He suffered the following injuries in the said accident:
1. Crush injury over right root.
2. Fracture fifth M.T. bone and joint.
3. Fracture P.P. little toe. (Total 3 fractures)
4. Abrasions over left side trunk, right-foot, right-leg, right-hand and left-knee
5. Profusely Bleeding.
6. Abrasions and blunt injuries all over body.
3. Appellant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short "the Act"). The Tribunal opined that as the appellant did not possess a driving licence, he must be held to have contributed to the accident. Although a sum of Rs. 30,000/- was awarded by way of compensation, in view of the finding that he was guilty of contributory negligence on his part, found to be entitled to a sum of Rs. 12,000/- only. The High Court by reason of the impugned judgment has dismissed the appeal preferred by him under Section 173 of the Act.
4. The question which arises for consideration is as to whether the appellant can be said to have guilty of contributory negligence. Ordinarily, the doctrine of contributory negligence is not applicable in case of children with the same force as in the case of adults.
5. We do not intend to lay down a law that a child can never be guilty of contributory negligence but ordinarily the same is a question of fact. [See Muthuswamy and Anr. v. S.A.R. Annamalai and Ors. MANU/TN/0034/1990 : AIR1990Mad201 ]
6. A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent.
7. The question is, negligence for what? If the complainant must be guilty of an act or omission which materially contributed to the accident and resulted in injury and damage, the concept of contributory negligence would apply. [See New India Assurance Company Ltd. v. Avinash 1988 ACJ 322 (Raj.)]
In T.O. Anthony v. Kavarnan and Ors. MANU/SC/7181/2008 : (2008)3SCC748 , it was held
6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the inj........