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Memorandum On Behalf of Respondent Ilnu
Memorandum On Behalf of Respondent Ilnu
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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
TABLE OF CONTENTS
Contents
LIST OF ABBREVIATIONS .........................................................................................................3
INDEX OF AUTHORITIES..........................................................................................................4
STATEMENT OF ISSUES............................................................................................................7
SUMMARY OF ARGUMENTS.....................................................................................................8
ARGUMENTS ADVANCED.........................................................................................................9
I. THE TRACTOR DRIVER IS NOT GUILTY U/S 279, 337 A ND 338 OF IPC, 1860........9
PRAYER....................................................................................................................................16
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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
LIST OF ABBREVIATIONS
& And
§ Section
Anr. And others
Ors. Others
AIR All India Reporter
Art. Article
i.e. that is
p. Page
SC Supreme Court
v. Versus
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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
INDEX OF AUTHORITIES
CASES CITED
S.N. BOOKS
S.N. BOOKS
DATABASES REFERRED
1. http://www.manupatra.com
2. http://www.westlawindia.com
3. https://www.scconline.in/default.aspx
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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
4. https://www.jstor.com
DICTIONARIES
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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
STATEMENT OF JURISDICTION
The petitioners have filed the case before the hon’ble 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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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
STATEMENT OF FACTS
For the sake of brevity and convenience of the Hon’ble Court the facts of the present case are
summarised as follows:
-BACKGROUND-
Mr. 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.
After 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.
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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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
STATEMENT OF ISSUES
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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
SUMMARY OF ARGUMENTS
I. THE TRACTOR DRIVER IS NOT GUILTY U/S 279, 337 A ND 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.
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.
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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
ARGUMENTS ADVANCED
IV. THE TRACTOR DRIVER IS NOT GUILTY U/S 279, 337 A ND 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, it’s 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,
none of the sections that the respondents are charged with, are rightly applied and the
respondents should be vindicated of the same.
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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MEMORANDUM ON BEHALF OF RESPONDENT
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(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 driver’s 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,
"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
4
Tamil Nadu State Transport Corporation Ltd. v. Abdul Salam and Ors.
5
Blyth v. Birmingham Waterworks Co., 1856 (11) Ex. 781
6
Gujarat State Road Transport Corporation v. Kamlaben Valjibhai Vora
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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
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.
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.
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National Insurance Co. Ltd. v. Smt. Uma Devi Tiwari and Ors., (2007) (1) MANISA (M.P.)
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T.O. Anthony v. Karvavnan and Ors.
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Kanti Devi Sikarwarand Ors. v. Om Prakash and Ors., 2007 (1) MPWN88:2007(1) MPH7 447
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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
“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.”
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.
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
Commissioner for Executing Office of Lord High Admiral of United Kingdom v. Owners of S.S. Volute
10
Manjula Devi Bhuta v. Anr. v. Manjusri Raha and Ors., MANU/MP./0109/1967MANU/MP/0109/1967 : 1968
11
A.C.J. 1.
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MEMORANDUM ON BEHALF OF RESPONDENT
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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.
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MEMORANDUM ON BEHALF OF RESPONDENT
I.M. N ANAVATI MEMORIAL MOOT COURT COMPETITION, 2016
PRAYER
Wherefore, in light of the facts presented, issues raised, arguments advanced, authorities
cited, counsels on behalf of Respondents humbly pray before this Hon’ble Court to kindly
declare and adjudge that:
And pass any other order which this Hon’ble 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. /-
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MEMORANDUM ON BEHALF OF PETITIONER