ARMY INSTITUTE OF LAW CLASS MOOT

BEFORE THE

MEMORANDUM ON BEHALF OF THE PETITIONER

 ARMY INSTITUTE OF LAW CLASS MOOT

TABLE OF CONTENTS

List of Abbreviations

Index of Authorities

Statement of Jurisdiction

Statement of Facts

Statement of Issues

Summary of Arguments

Arguments Advanced

1. Whether the State is liable for the accident?

2. Whether the State is liable to pay compensation?

Prayer

MEMORANDUM ON BEHALF OF THE PETITIONER

 ARMY INSTITUTE OF LAW CLASS MOOT

LIST OF ABBREVIATIONS

& AND

Anr. Another

UOI Union of India

AIR All India Reporter

Hon’ble Honorable

S.C Supreme Courts

SCC Supreme Court Cases

v. Versus

S/d- Signed

MEMORANDUM ON BEHALF OF THE PETITIONER

 ARMY INSTITUTE OF LAW CLASS MOOT

INDEX OF AUTHORITIES

TABLE OF CASES:
1. Umashankar Pacholi v. Mahendra Singh andAnr.
2. N. Nagendra Rao v. State of Punjab.
3. State of Rajasthan v. Vidyavati.
4. Syed Basheer Ahmed v. Mohd. Jameel.
5. G.M. K.S.R.T.C. v. Susamma Thomas.
6. Association of Victims of Uphaar Tragedy v. UOI
7. New India Insurance Co. Ltd. V. Charlie.
8. Dr. Mahadeva Deshi and Anr. v. M/s. Cholamandala M.S. General Inm. Co.
Ltd. Bangalore and Anr.

BOOKS REFFERED:

MEMORANDUM ON BEHALF OF THE PETITIONER

 ARMY INSTITUTE OF LAW CLASS MOOT

STATEMENT OF FACTS

1. On 20-08-2017, at about 10:30 p.m., Rupan was driving back from a friend’s
place.
2. Going on her side of the road she did not notice a police jeep on night petrol
coming from opposite direction.
3. Since it was raining and the street lights were not working, the visibility was
low.
4. There was an accident and the two cars collided. Rupan was thrown out of
car and developed grievous injuries.
5. Admitted to hospital, she developed a lung infection and died on 3 rd
September.
6. Her brother brought an action against the state and the police vehicle driver,
claiming Rs. 45, 00, 000 as compensation.
7.

MEMORANDUM ON BEHALF OF THE PETITIONER

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STATEMENT OF JURISDICTION

The Counsel on behalf of the Petitioners has approached the Motor Accidents
Claims Tribunal under Section 166(2) of the Motor Vehicles Act, 1988.

Sec. 166(2) Application for Compensation-

Every application under sub- section (1) shall be made, at the option of the
claimant, either to the Claims Tribunal having jurisdiction over the area in which
the accident occurred or to the Claims Tribunal within the local limits of whose
jurisdiction the claimant resides or carries on business or within the local limits of
whose jurisdiction the defendant resides, and shall be in such form and contains
such particulars as may be prescribed:

Provided that where no claim for compensation under section 140 is made in such
application, the application shall contain a separate statement to that effect
immediately before the signature of the applicant.

MEMORANDUM ON BEHALF OF THE PETITIONER

 ARMY INSTITUTE OF LAW CLASS MOOT

STATEMENT OF ISSUES

1. Whether the State is liable for the accident?

2. Whether the State is liable to pay compensation?

MEMORANDUM ON BEHALF OF THE PETITIONER

 ARMY INSTITUTE OF LAW CLASS MOOT

SUMMARY OF ARGUMENTS

CONTENTION 1: THE STATE IS LIABLE FOR THE ACCIDENT.

It is humbly submitted before the Hon‘ble Court that the state is liable for the
accident. It was due to the rash and negligent driving of the driver of the police
jeep that the accident took place. The accident took place mainly due to the police
jeep arriving from the opposite direction. Besides the visibility was reduced due to
heavy rainfall and non-functioning of the street lights.

CONTENTION 2: THE STATE IS LIABLE TO PAY COMPENSATION.

It is humbly submitted before the Hon’ble Court that the state is liable to pay
compensation amounting to Rs.45,00,000/- under Sec. 168(1) of The Motor
Vehicles Act, 1988. Since the accident was caused due to negligence of the police
vehicle driver, the State is vicariously liable for the accident.

MEMORANDUM ON BEHALF OF THE PETITIONER

 ARMY INSTITUTE OF LAW CLASS MOOT

ARGUMENTS ADVANCED

CONTENTION 1: THE STATE IS LIABLE FOR THE ACCIDENT.

It is humbly submitted before the Hon’ble Court that the accident took place as a
result of collision of the car, that was being driven by the deceased, with the police
jeep on night patrolling. Since the accident took place due to the negligence of the
police jeep driver, as he was coming from the opposite direction, the state is liable
of the accident, policing being a function of the state.

It is humbly submitted before the Hon’ble Court that Sec. 185 of The MVA, 1988
states :

185.Driving by a drunken person or by a person under influence of drugs-

Whoever, while driving, or attempting to drive, a motor vehicle,-

(a) Has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a
test by a breath analyzer, or

(b) Is under the influence of a drug to such an extent as to be incapable o

exercising proper control over the vehicle,

Shall be punishable for the first offence with imprisonment for a term which may
be extended to six months, or with fine which may extend to two thousand rupees,
or with both; and for a second or subsequent offence, if committed within three
years of the commission of the previous similar offence, with imprisonment for a
term which may extend to two years, or with fine which may extend to three
thousand rupees, or with both.

It is humbly submitted that no where it is clearly stated that the deceased was
intoxicated to the level where she could not drive the vehicle properly as there is
no proof that the alcohol content in her blood exceeds 30 mg. per 100ml. As in the
case of Umashankar Pacholi v.Mahendra Singh and Anr.1, it was held by the
Madhya Pradesh H.C. that “However assuming that the deceased had taken liquor

1
2004 ACJ 330.

MEMORANDUM ON BEHALF OF THE PETITIONER

 ARMY INSTITUTE OF LAW CLASS MOOT

to some extent but the way accident had taken place leaves no doubt that the
deceased was not responsible for the accident.”

Similarly in this case the deceased although slightly drunk is not responsible for
the accident as the police vehicle driver was coming from the opposite direction.

Although police is a sovereign function of the State, the State cannot plead non-
liability in the garb of sovereign functions. The State is equally liable for the
accident on account of negligence of the police jeep driver.

In the case of N. Nagendra Rao v. State of A.P.2, the Supreme Court held that when
due to the negligent act of the officers of the state a citizen suffers any damage the
state will be liable to pay compensation and the principle of sovereign immunity of
state will not absolve him from this liability. The court held that in modern concept
of sovereignty the doctrine of sovereign immunity stands diluted and the
distinction between sovereign and non-sovereign functions no longer exists. The
court noted the dissatisfactory condition of the law in this regard and suggested for
enacting appropriate legislation to remove the uncertainty in this area. Rejecting
the contention of the state the Supreme Court held that the state was liable
vicariously for the negligence committed by its officers in discharge of public duty
conferred on them under a statute. As regards the immunity of the state on the
ground of sovereign function, the court held that the traditional concept of
sovereignty has undergone a considerable change in the modern times and the line
of distinction between sovereign and non sovereign powers no longer survives. No
civilised system can permit an executive as it is sovereign. The concept of public
interest has changed with structural change in the society. No legal system can
place the state above law as it is unjust and unfair for a citizen to be deprived of his
property illegally by negligent act of the officers of the state without remedy. The
need of the state to have extraordinary powers cannot be doubted. But it cannot be
claimed that the claim of the common man be thrown out merely because the act
was done by its officer even though it was against law. Need of the state, duty of
its officials and right of the citizens are required to be reconciled so that the rule of
law in a welfare state is not shaken. In welfare state, functions of the state are not
only defence of the country or administration of justice or maintaining law and
order but it extends to regulating and controlling the activities of the people in
2
AIR 1994 SC 2663

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almost every sphere. The demarcation between sovereign and non-sovereign

powers for which no rational basis survives has largely disappeared. The court
further said that sovereign immunity was never available if the state was not
involved in commercial or private function nor it is available where its officers are
guilty of interfering with life and the liberty of a citizen not warranted by law. In
both the cases the state is vicariously liable to compensate. The doctrine of
sovereign immunity has no relevance now when the concept of sovereignty has
itself undergone a major change. Sovereignty is now with the people. The people
of India made the Constitution and gave it to themselves. The structure and
functions of the state have been created and constituted to serve the people.
Accordingly the state is liable for negligence of its officers. Further, in a large
number of cases the courts have ordered the Government to pay compensation to
the victims of torture for violation of their fundamental right guaranteed by
Article-21 of the Constitution.

Similarly in the landmark case of State of Rajasthan v. Vidyavati,3 the claim for
damages was made by the dependants of a person who died in an accident caused
by the negligence of the driver of a jeep maintained by the Government for official
use of the Collector of Udaipur. The Rajasthan High Court took the view-that the
State was liable. The Supreme Court upheld the same and observed that for acts
done in the course of employment but not in connection with sovereign powers of
the State, State like any other employer is vicariously liable.

Furthermore, Sec 112(1) of The Motor Vehicles Act,1988 states that:

112. Limits of speed.—

(1) No person shall drive a motor vehicle or cause or allow a motor vehicle to be
driven in any public place at a speed exceeding the maximum speed or below the
minimum speed fixed for the vehicle under this Act or by or under any other law
for the time being in force: Provided that such maximum speed shall in no case

3
1962 AIR 933, 1962 SCR Supl. (2) 989.

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exceed the maximum fixed for any motor vehicle or class or description of motor
vehicles by the Central Government by notification in the Official Gazette.

It is humbly submitted that although the deceased was driving fast but nowhere is
it mentioned that the speed at which the deceased was driving exceeded the
maximum speed limits. Thus it would be wrong to held the deceased, or in the
present case her legal representatives, liable.

MEMORANDUM ON BEHALF OF THE PETITIONER

 ARMY INSTITUTE OF LAW CLASS MOOT

CONTENTION 2: THE STATE IS LIABLE TO PAY COMPENSATION.

It is humbly submitted before the Hon’ble Court that according to Sec. 168(1) of
the MVA, 1988-

168.Award of the Claims Tribunal- (1) On the receipt of an application for

compensation made under Sec. 166 4, the Claims tribunal shall, after giving the
notice of the application to the insurer and after giving the parties( including the
insurer) an opportunity of being heard, hold an enquiry into the claim or, as the
case maybe, each of the claims and , subject to the provisions of Sec 162 may make
an award determining the amount of compensation which appears to it to be just
and specifying the person or persons to whom compensation shall be paid and in
making the award the Claims tribunal shall specify the amount which shall be
made by the insurer or owner or driver of the vehicle involved in the accident or
by all or any of them, as the case may be:

Provided that where such application makes a claim for compensation under Sec
140 in the respect of the death or permanent disablement of any person, such
claim and any other claim for compensation in respect of such death or permanent
disablement shall be disposed of in accordance with the provisions of Chapter X.

Futhermore , in terms of Sec.- 166 (1) (c)5 in case of death, all or any of the legal
representatives of the deceased become entitle to compensation and any such legal
representative can file a claim petition.

166. Application for Compensation-(1) An application for compensation arising

out of an accident of the nature specified in the sub-section (1) of section 165 may
be made-

(c)where the death has resulted from the accident, by all or any of the legal
representatives of the deceased.

In this case the elder brother of the defendant is his legal representative and thus is
entitled for the compensation of Rs. 45,00,000.6 Sec. 168 of the MVA, 1988
4
The Motor Vehicles Act, 1988.
5
The Motor Vehicles Act, 1988.
6
According to Sec. 2(11) of The Code of Criminal Procedure, 1908 " 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 representative character the person on whom the estate devolves on
the death of the party so suing or sued.

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provides that the Claims Tribunal shall make an award to determine the amount of
compensation which appears to be “just”. The S.C. held in the case of K.S.R.T.C.
v. Mahadeva Shetty7, that the expression “just” denotes equitability, fairness and
reasonableness.

In Syed Basheer Ahmed v. Mohd. Jameel8, The S.C. held that the expression “
which appears to be just” under Sec. 168 of the MVA, 1988 vests a wide
descretion in determination of compensation. However, the wide amptitude of such
power does not empower the Tribunal to determine the compensation arbitrarily or
ignore the settled principles relating to determination of compensation. There
should be reasonable nexus between loss incurred by the dependants of the
deceased and the compensation awarded.

In G.M. K.S.R.T.C. v. Susamma Thomas9, the S.C. held that the proper method for
calculation of compensation is the multiplier method which is logically sound and
legally well established method of ensuring a “just” compensation which will make
for uniformity and certainty of the awards. The multiplier method involves the
ascertainment of the loss of dependency or the multiplicand having regard to the
circumstances of the case and capitalizing the multiplicand by an appropriate
multiplier.

The multiplier depends upon the age of the deceased, his income as well as his
future prospects, excluding his personal expenses. Although there is no proof of
either the income or the age of the deceased, still the amount of compensation can
be computed as was done in the case of Association of Victims of Uphaar Tragedy
v. UOI10.

It is contended that the monthly income of the deceased was Rs. 29,000/- per
month approximately, that amounted to Rs.3,50,000/- per annum and the multiplier
being taken as 18 (which is the maximum multiplier as held in the case of New
India Insurance Co. Ltd. V. Charlie11). Thus the compensation amounts to ( Rs.
3,50,000/- x 18) Rs. 63,00,000/- .In addition to this it is humbly pleaded that
conventional damages of Rs.50, 000/-( Rs.20,000/- towards loss of consortium,
7
(2003) 7 SCC 197: AIR 2003 SC 4172: 2003 AIR SCW 3797.
8
2009 (1) ACJ 690 (2009) 2 SCC 225: 2009 (1) SCALE 222.
9
(1994) 2 SCC 176: 1994 ACJ 1: AIR 1994 SC 1631.
10
104 (2003) DLT 234 (DB)
11
AIR 2005 SC 2157 (2005) 10 SCC 720: 2005 (3) SCJ 296.

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Rs.15,000/- towards loss of love and affection, Rs.10,000/- towards the loss of
estate and Rs.5000/- towards the ‘transportation of dead body’ and funeral
expenses) and Rs. 1,50,000/- towards the medical expenses incurred on account of
the lung infection that she developed due to the accident.

The total compensation to be awarded amounts to Rs. 65,00,000/- .but the

deceased was negligent in not wearing the seat belt. Thus, due to the contributory
negligence of the deceased, it is humbly pleaded to award 70% of the
compensation, that amounts to Rs.45,00,000/- as was held in the case of Dr.
Mahadeva Deshi and Anr. v. M/s. Cholamandala M.S. General Inm. Co. Ltd.,
Bangalore and Anr.12

Futhermore, Sec 140 of The MVA,1988 states that:

140. Liability to pay compensation in certain cases on the principle of no fault-(1)

Where death or permanent disablement of a person has resulted from an accident
arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle
shall, or as the case may be, the owners of the vehicle shall, jointly and severally,
be liable to pay compensation in respect of such death or disablement in
accordance with provisions of this section.

(2) The amount of compensation which shall be payable under sub sec.(1) in
respect of death of any person shall be a fixed sum of fifty thousand rupees and the
amount of compensation payable under that sub sec. in respect of permanent
disablement of any person shall be a fixed sum of twenty five thousand rupees.

Thus in the light of this section the legal representative of the deceased should be
awarded an interim compensation of Rs.50,000/-.

12

MEMORANDUM ON BEHALF OF THE PETITIONER

 ARMY INSTITUTE OF LAW CLASS MOOT

PRAYER

In the lights of the facts of the case, arguments advanced and authorities cited, the
Counsel on behalf of the petitioner humbly prays before the Hon ‘ble Court to
kindly adjudge and declare that:

1.The State is liable for the accident.

2.The legal representative of the deceased shall be awarded compensation

ammounting to Rs. 45,00,000/-

And / Or

Pass any other Order, Direction, or Relief that it may deem fit in the best interests
of Justice, Fairness, Equity & Good conscience.

And for this act of Kindness, the Counsel on behalf of the Petitioner as in duty
bound ,Shall forever pray.

S/d----------

Counsel on behalf of the Petitioner

MEMORANDUM ON BEHALF OF THE PETITIONER