KALIRAM SAHU Vs. CHAMANLAL DEWANGAN

JUDGEMENT

(1.) Invoking the appellate jurisdiction of this Court under Section 173 of the Motor Vehicles Act, 1988 (in short 'the M.V. Act'), the claimants/appellants herein have challenged the award dated 27/03/2012, passed by 4th Additional Motor Accidents Claims Tribunal, Durg (in short 'Claims Tribunal') in Claim Case No. 184/2011, by which, the Claims Tribunal has partly allowed the claim petition filed under Section 166 of the M.V. Act and awarded a total compensation of Rs. 3,22,320 along with interest @ 6% per annum to the claimants. The brief facts necessary for adjudication of this appeal are as under:

(2.) Mr. P.R. Patankar, learned counsel appearing for the appellants/claimants would submit that the learned Claims Tribunal has fallen into error by holding that the deceased was contributory negligent in driving the vehicle to the extent of 50%. He would further submit that though, the Insurance Company has raised a vague plea that the deceased himself was contributory negligent but it failed to lead any evidence in support of plea of contributory negligence. He would further submit that merely because three persons were allegedly sitting on the offending motorcycle in alleged violation of Section 128 of the M.V. Act, no presumption of contributory negligence against deceased Devendra Kumar Sahu can be drawn. He would further submit that after investigation, Police filed a Challan (Ex. P-1) against respondent No. 1 only for the offence under Sections 279, 337 & 304-A of the I.P.C., which is pending consideration before the jurisdictional Criminal Court. He finally submits that the finding of the Claims Tribunal with respect to the contributory negligence is liable to be set-aside.

(3.) Per contra, Mr. Ratan Pusty, learned counsel appearing for respondent No. 3-Insurance Company would submit that the finding of the Claims Tribunal, holding that the deceased was contributory negligent, is based on the evidence available on record. He further submits that two other persons were sitting on the motorcycle being driven by the deceased in violation of Section 128 of the M.V. Act per se which establishes the contributory negligence on the part of the deceased and thus, finding of the Claims Tribunal requires no interference by this Court.