Team Code-05

INTRA DEPARTMENT MOOT COURT COMPETITION-2022

BEFORE THE HON’BLE HIGH COURT OF ARBAAZ

IN THE CASE OF
(FAO No. 2579 of 2022)
(Under Section 173 of THE MOTOR VEHICLE ACT, 1988)

Mr. Vaibhav and Others ………Claimants

V.

Dilipveer and Others ………Respondents

RESPECTFULLY SUBMITTED TO THE HON’BLE JUDGE IN

JUDICATURE OF THE HIGH COURT OF ARBAAZ

-MEMORANDUM O N BEHALF OF CLAIMANTS-

Memorial on the behalf of the petitioner 1

 Table of Contents
LIST OF ABBRIVIATIONS ................................................................................................... 3

INDEX OF AUTHORITIES ................................................................................................... 5

STATEMENT OF FACTS ....................................................................................................... 7

STATEMENTS OF ISSUES.................................................................................................... 8

SUMMARY OF ARGUMENTS ............................................................................................. 9

ARGUMENTS ADVANCED ................................................................................................ 10

1.THAT THE ACCIDENT DATED 15.01.2022 DOES NOT AMOUNT TO A CASE OF

CONTRIBUTORY NEGLIGENCE. .................................................................................... 10
1.1 THE INVESTIGATING OFFICER DID AN ERRONEOUS INVESTIGATION ......... 10
1.2 THE TESTIMONY OF SOLE EYEWITNESS STANDS ADMISSIBLE. ...................... 10
1.3 SAMEER HAD NOT CONTRIBUTED TO THE ACCIDENT, BUT, CONTRIBUTED
TO THE INJURY. .............................................................................................................. 11
2. THAT THE CLAIMANTS ARE ENTITLED TO ENHANCEMENT OF
COMPENSATION. .............................................................................................................. 12
2.1 THAT THE PERCENTAGE OF FUTURE PROSPECTS IS NOT ASCERTAINED
RIGHT IN THE CLAIM. ................................................................................................... 12
2.2 THAT THE HEADS OF FUNERAL EXPENSES AND LOSS OF ESTATE SHOULD
BE CALCULATED AGAIN............................................................................................... 12
2.3 DISCOVERY OF GROSS MISCALCULATION IN THE TOTAL LOSS OF
DEPENDENCY. ................................................................................................................ 13
3. THAT THE INSURANCE COMPANY IS NOT LIABLE TO PAY THE INSURANCE
CLAIM. ................................................................................................................................ 14
3.1 Exoneration on the basis of breach of the condition to obtain a third party insurance.
.......................................................................................................................................... 14

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

Memorial on the behalf of the petitioner 2

 LIST OF ABBRIVIATIONS

S. NO. ABBREVIATIONS EXPANSIONS

PIL Public Interest Litigation

1.

Schdl Schedule
2.

HC High Court
3.

CIC Central Information

4. Commission

Art. Article
5.

Govt. Government
6.

SC Supreme Court
7.

SC Supreme Court
8.

Art. Article
9.

§ Section
10.

AIR All India Reporter

11.

SC Supreme Court
12.

SCC Supreme Court Cases

13.

UoI Union of India

14.

Memorial on the behalf of the petitioner 3

 ¶ Paragraph
15.

v. Versus
16.

SCR Supreme Court Reports

17.

18. M.A.C.T Motor Accidents Claims

Tribunal

19. ACS

20. PVT Private

21. LTD Limited

Memorial on the behalf of the petitioner 4

 INDEX OF AUTHORITIES

-SUPREME COURT-
Sakshi vs Union of India (2004) 5 SCC 546

National Insurance Company Ltd. vs. Pranay Sethi. (2017) 16 SCC 680

Sarla Verma & Ors vs Delhi Transport Corp.& Anr. (2009) 6 SCC 121

Oriental Insurance ltd. vs Jashuben (2008) 4 SCC 162

-VARIOUS LAWS AND ACTS-

The Motor Vehicles Act, 1988

(59 of 1988)
The Motor Vehicles (Amendment) Act, 2019
(32 of 2019)
The Indian Evidence Act, 1872
(1 of 1872)
Punjab Govt. Gaz.(Extra)
(November 13, 2013)

-BOOKS AND JOURNALS-

Dr. R.K. Bangia’s Law of Torts, Allahabad law Agency
Faridabad, 26th Edition

Memorial on the behalf of the petitioner 5

STATEMENT OF JURISDICTION

It is humbly submitted that the petitioner has approached this Hon’ble High Court of Arbaaz
under § 173 of The Motor Vehicle Act, 1988 which reads as follows:

“173. Appeals. —

(1) Subject to the provisions of sub-section (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 it twenty-five thousand rupees or fifty per cent. 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 ninety
days, if it is satisfied that the appellant was prevented by sufficient cause from
preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute
in the appeal is less than ten thousand rupees.”

Memorial on the behalf of the petitioner 6

 STATEMENT OF FACTS

-Background-

Bindia is a sovereign, socialist, secular, democratic and republic country. The main mode of
travelling in Bindia is by road. The heavy traffic on the roads has been the cause of many road
accidents keeping in view the same the government has made Motor Vehicles Act, 1988 to
compensate the victims and penalise the wrongdoers. Sindhigarh, capital of the state Arbaaz,
is a city located in the northern region of Bindia.

-Factual Description-

On 15.01.2022 at 10:45 P.M., Sameer a-24-year old man, a resident of Sindigarh was working
as a paralegal in a leading law firm at Singhania and Singhania Associates and was paid
₹10,000/month, was heading towards his home, he was riding the motorbike well in the speed
limits and was taking due care and he was on the left side of the road, a truck driver named
Dilipveer was driving a truck in a rash and negligent manner, who overtook a car from the left
side and hit Sameer, whereby Sameer was thrown several feet away, where he incurred head
injuries, he was rushed to the hospital whereby despite the best efforts of the doctors, they were
not able to save him. The deceased was young, well educated, had cleared the prelims and
mains of the ACS Judiciary examination and would’ve been instrumental in increasing the
income of his family by becoming a junior associate in a few months. The legal representatives
of the deceased filed an application for compensation before the MACT of ₹10,25,000/-, but
the claims tribunal evaluated the value of ₹4,76,000/- and 50% of that amount was deducted
under contributory negligence on the part of both the truck driver and Sameer. Therefore, the
total compensation that the family would get is ₹2,38,000/- along with interest @8% p.a. to the
claimants in the order dated vide 05.06.2022, An eyewitness i.e., Kuldeep was produced before
the tribunal who testified that he had seen Sameer wearing a helmet and the truck making a
sharp and rash cut while overtaking the car whose testimony was not relied upon as his name
was not in the charge sheet. The truck was insured and was made responsible to compensate
the deceased. Also, the investigating officer found a half-filled bottle of liquor in the offending
vehicle.

-The Present Petition-

The petitioner filed an appeal before the Hon’ble High Court of Arbaaz seeking enhancement
of compensation and challenging the finding of the M.A.C.T that the said accident is a case of
contributory negligence.

Memorial on the behalf of the petitioner 7

 STATEMENTS OF ISSUES
ISSUE 1

Whether the accident dates 15.01.2002 amounts to a case of contributory negligence?

ISSUE 2

Whether the claimants are entitled to enhancement of compensation?

ISSUE 3

Whether the insurance company is liable to pay the amount of compensation to the claimants?

Memorial on the behalf of the petitioner 8

 SUMMARY OF ARGUMENTS

1. That the accident dated 15.01.2022 does not amount to a case of contributory negligence.
It is humbly submitted before the Hon’ble High Court that the accident occurred on
15.01.2022 does not amount to contributory negligence as, firstly, that the
investigating officer did an erroneous investigation, secondly, the testimony of the
sole eyewitness stands admissible, thirdly, Sameer had not contributed to the
accident, but, contributed to the injury.

2. That the claimants are entitled to enhancement of compensation.

It is humbly submitted to this court that the claimants are entitled to enhancement
of compensation because, firstly, that the percentage of future prospects is not
ascertained right in the claim, secondly, that the heads of funeral expenses and loss
of estate should be calculated again, thirdly, discovery of gross miscalculation in the
total loss of dependency.

3. That the insurance company is not liable to pay the insurance claim.

It is humbly submitted to this Hon’ble court that, the insurance company is not liable
to pay the insurance claims as, a condition of a third party insurance has been breached,
therefore the insurance company is exonerated to pay the compensation.

Memorial on the behalf of the petitioner 9

 ARGUMENTS ADVANCED

That petitioner in pursuance of his case submits to the Hon’ble court the following
arguments.

1.THAT THE ACCIDENT DATED 15.01.2022 DOES NOT AMOUNT TO A CASE OF

CONTRIBUTORY NEGLIGENCE.

(1) It is humbly submitted before the Hon’ble High Court that the accident occurred on
15.01.2022 does not amount to contributory negligence as, firstly, that the investigating officer
did an erroneous investigation, secondly, the testimony of the sole eyewitness stands
admissible, thirdly, Sameer had not contributed in the accident, but, contributed in the injury.

1.1 THE INVESTIGATING OFFICER DID AN ERRONEOUS INVESTIGATION.

(2) It is submitted to this hon'ble court, that, an erroneous investigation had been conducted by
the investigating officer.

(3) Acc. to the 215B of PUNJAB GOVT. GAZ.(EXTRA), NOVEMBER 13, 2013, q[It is the
duty of investigating officer to make sure that the site of collision is thoroughly investigated,
he shall examine the eyewitnesses in order to preserve the complete evidence with regards to
the accident, the investigating officer shall also collect the driving license of the offending
vehicle, the investigating officer had clear grounds for reasonable suspicion as a half emptied
bottle of liquor was recovered from the offending vehicle and if it was for the breath analyser
test to be conducted the picture would have been a lot clearer.

(4) The investigation officer stated that he did not recover helmet of any kind at the site of the
accident. Keeping in view the nature of investigation being faulty, the statement of the
investigating officer cannot be completely relied upon.

1.2 THE TESTIMONY OF SOLE EYEWITNESS STANDS ADMISSIBLE.

(5) It is humbly stated to the court that there were four individuals, who were present when the
accident happened the accident:

4. the driver of the offending truck.

5. Sameer the deceased.

Memorial on the behalf of the petitioner 10

 6. the car rider who was overtaken by the truck driver and.
7. and Kuldeep the eyewitness of this whole incident.

(6) The police were not able to find the car, which was overtaken, but we have the eyewitness
Kuldeep who is the sole eyewitness and claims that he has seen the whole accident, his
testimony or elaboration of the facts can help us in determining the liability of the parties more
accurately.

(7) Wherein the tribunal had said that the statement provided by the eyewitness is not
admissible since his name was not present in the charge sheet made by the police.

(8) This family has lost their child on whom they invested so much. Who was so bright and
would have only worked as an increasing factor in the family's income, who had bright future
prospects, the sole eyewitness can change the course of this case, he is the 'best chance witness'
who have observed the whole accident face to face and can provide the court with the relevant
facts or some facts not known previously.

(11) As held in the case law of Sakshi vs Union of India on 26 May, 2004:

'Rules of procedure are hand-maiden of justice and are meant to advance and not to obstruct
the cause of justice. It is, therefore, permissible for the Court to expand or enlarge the meanings
of such provisions in order to elicit the truth and do justice with the parties.'
If it is for the court to go beyond the scope of procedure, justice to Sameer can rightly be served.

1.3 SAMEER HAD NOT CONTRIBUTED TO THE ACCIDENT, BUT,

CONTRIBUTED TO THE INJURY.
(12) Even if Sameer contributed to his injury, he did not contribute to the accident.

(13) Even if the court is not satisfied by the question of wearing helmet or not.

(14) This factor could not be taken as a ground to fix contributory negligence, just because the
rider not wearing a helmet is not the reason for knocking him down, so negligence cannot be
fixed upon the shoulder of the rider merely for not wearing the helmet.

(15) According to rule of last opportunity whosoever has the last opportunity of avoiding such
consequences fails to do so will be held responsible for such accident solely. Sameer had no
chance to avoid the accident, the truck was coming from behind, neither he had time to avoid
it nor has the visibility to react. Even if he had worn the helmet or not that does not establishes
he could have avoided the accident. Hence according to rule of last opportunity truck driver
was liable solely.

Memorial on the behalf of the petitioner 11

(16) Similarly, Sameer is only liable for sec. 129 of motor vehicle act and was not involved in
the causing of accident and is not the reason for knocking him down.

2. THAT THE CLAIMANTS ARE ENTITLED TO ENHANCEMENT OF

COMPENSATION.

(17) It is humbly submitted that the claimants are entitled to enhancement of compensation
because, firstly, that the percentage of future prospects is not ascertained right in the claim,
secondly, that the heads of funeral expenses and loss of estate should be calculated again,
thirdly, discovery of gross miscalculation in the total loss of dependency.

2.1 THAT THE PERCENTAGE OF FUTURE PROSPECTS IS NOT ASCERTAINED

RIGHT IN THE CLAIM.

(18) It is humbly submitted to the court that the percentage of future prospects given by the
tribunal as compensation to the deceased family is not right.

(19) Sameer was an exceptionally bright individual, at very young age of 24, he was working
at one of the leading law firm in our country. He was person with bright prospects and had a
great future ahead. He had also cleared pre and mains of ACS examination. He would also have
been promoted to the post of junior associate in a few months and the post of a junior associate
is a permanent job which has increasing averments and benefits.

(20) As stated above he was a very intelligent and bright person and it would be very unjust to
him to not get the future prospects at 50%. The supreme court in Oriental Insurance ltd. vs
Jashuben, held that the perks from which the family would have derived monthly benefit must
be taken into consideration which substantiates the claim of 50% of future prospects in the
compensation.

2.2 THAT THE HEADS OF FUNERAL EXPENSES AND LOSS OF ESTATE SHOULD
BE CALCULATED AGAIN.

(21) As given in the case law of National Insurance Company Ltd. vs. Pranay Sethi, the heads
of funeral expenses and loss of estate condign that the amount that we have quantified should
be enhanced on percentage basis in every three years and the enhancement should be at the rate
of 10% in a span of three years. We are disposed to hold so because that will bring in
consistency in respect of those heads. ‘Keeping in view the rates that are always going to
change with the advancing time, the supreme court in the case had said that.

Memorial on the behalf of the petitioner 12

(22) In the present case, the heads of funeral expenses and loss of estate are 15000 each, and
the present time exceeds the time given by the supreme court in the case law of National
Insurance Company Ltd. vs. Pranay Sethi i.e., 3 years, as the judgement of the present case was
given in 2017 and the amount in both the heads is to be increased by 1500 each.

(23) Hence, the final amount of the both the heads in the compensation would be- funeral
expenses=16500 and loss of estate=16500.

2.3 DISCOVERY OF GROSS MISCALCULATION IN THE TOTAL LOSS OF

DEPENDENCY.
(24) In case of Sarla Verma & Ors vs Delhi Transport Corp.& Anr
National Insurance Company Ltd. vs. Pranay Sethi & Ors. Vs. Delhi Transport Corporation &
Anr., 2009:
To calculate the total loss of dependency-
1- access the income of the deceased with future prospects.
2-the deductions are to be made towards the personal living expenses of the deceased from the
annual salary.
3-the multiplier is to be applied = the total loss of dependency.
(25) In the case of Sameer, the tribunal has erred in calculating the total loss of dependency as
personal expenses are to be deducted from the annual salary and not the monthly salary.
Correcting this error and keeping in view other additions provided, the new table of
compensation would be:

S.No. Head of Compensation Amount Award (INR)

1. Actual Income 10,000
2. Future Prospects (50% of 10,000) 5,000
3. Annual Income (15,000 * 12) 1,80,000
3. Deduction Towards Personal Expenses (50%of 90,000
1,80,000)
4. Multiplier 18
5. Total Loss of Dependency (I) 16,20,000
6. Medical Expenses (II) 2,00,000
7. Loss of Love and Affection (III) 40,000
8. Filial Consortium (IV) 80,000
9. Funeral Expenses (V) 16,500
10. Loss of Estate (VI) 16,500
TOTAL (I+II+III+IV+V+VI) [A] 19,73,000
TOTAL COMPENSATION PAYBLE. 19,73,000

Memorial on the behalf of the petitioner 13

3. THAT THE INSURANCE COMPANY IS NOT LIABLE TO PAY THE INSURANCE
CLAIM.

It is humbly submitted to this Hon’ble court that, the insurance company is not liable to pay
the insurance claims as, a condition of a third party insurance has been breached, therefore the
insurance company is exonerated to pay the compensation.

3.1 Exoneration on the basis of breach of the condition to obtain a third party insurance.
(26) According to section 150(2)(a)(ii):

“Duty of insurers to satisfy judgments and awards against persons insured in respect
of third party risks-
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any
judgment or award unless, before the commencement of the proceedings in which the
judgment or award is given the insurer had notice through the court or, as the case may
be, the Claims Tribunal of the bringing of the proceedings, or in respect of such
judgment or award so long as its execution is stayed pending an appeal; and an insurer
to whom notice of the bringing of any such proceedings is so given shall be entitled to
be made a party thereto, and to defend the action on any of the following grounds,
namely:—
(a) that there has been a breach of a specified condition of the policy, being one of the
following conditions, namely:––
(ii) a condition excluding driving by a named person or by any person who is not duly
licensed or by any person who has been disqualified for holding or obtaining a driving
licence during the period of disqualification or driving under the influence of alcohol
or drugs as laid down in section-185”

(27) In the present case, when the truck i.e. the offending vehicle was examined by the police officer, a
half-emptied bottle of liquor was recovered from the offending vehicle, the presumption of the driver
of the truck being under the influence of alcohol gets established, however the police officer and the
truck driver fails to conduct a breath analyser test of the truck driver, therefore the presumption that the
driver of the truck could have been under the influence of alcohol which can be reasonably suspected
from the given circumstances is substantiated.

(28) 'Res Ipsa Loquitur' is finding increasing applicability in the modern era. It is applied in cases of
industries like the use of the maxim in the 'M.C.Mehta v. Union of India' popularly known as the Olium

Memorial on the behalf of the petitioner 14

gas leak case and generally all cases where the rights of the public is violated and they have been
aggrieved and it is not possible for them to establish negligence. So the onus of not proving negligence
is shifted to the defendants. It is applied primarily in all prima facie cases, where at first instance the
negligence on part of the defendant is evident and without which the injury would not have occurred.
In such a case, it is presumed that the defendant is negligent and it is upto him to prove why he is not
negligent.

(29) The presumption that the driver of the truck was under the influence of alcohol is
established and because the same have not been rebutted anywhere by the driver or the owner,
the rule of Res Ipsa loquitur is attracted, and the driver of the truck can be held to be driving
under the influence of alcohol.

(30) The contention about the fake driving license have also been made on presumption of facts
and the same had not been rebutted by the truck driver, attracting the same rule of Res Ipsa
loquitur and establishing the negligence on the part of the defendant.

Memorial on the behalf of the petitioner 15

 PRAYER

In the light of the arguments advanced, cases and authorities cited, the counsel for the petitioner
humbly requests the Hon’ble High Court of Arbaaz to adjudge and declare that:

1. That the accident dated 15.01.2022 does not amount to a case of contributory negligence.
2. That the claimants are entitled to enhancement of compensation.
3. That the insurance company is not liable to pay the insurance claim.

And pass any other order, direction or relief that the court may deem fit in the best interests of
justice, fairness, equity and good conscience.

For this act of kindness, the petitioner shall duty bound forever pray.

Sd/-
COUNSEL FOR CLAIMENTS

Memorial on the behalf of the petitioner 16