SUDHA AND ORS. Vs. JACOB AND ORS.

JUDGEMENT

(1.) The appellants/claimants are before this Court contending that the compensation of Rs. 7,99,822/ -, awarded by the Tribunal in respect of the death of the deceased, aged 54 years, is inadequate and that the deduction of the compensation by 5% in view of the contributory negligence attributed on the deceased rider of the scooter, who hit against the autorickshaw , bearing No. KL -41/D -4251 is not correct or proper.

(2.) The accident was on 6.5.2011 at 11.15 A.M. when there occurred a collision between and scooter ridden by the deceased and the autorickshaw , bearing No. KL -41/D -4251, owned by the 1st respondent, driven by the 2nd respondent and insured by the 3rd respondent. Admittedly, both the vehicles were proceeding in the same direction and, according to the claimants, the driver of the autorickshaw took a sudden swerve to one side of the road without any signal, as a result of which the scooter ridden by the deceased dashed against the autorickshaw , resulting in fatal injuries leading to the death of the deceased.

(3.) According to the claimants, the accident was only because of the rash and negligent driving of the autorickshaw by the 1st respondent, which is sought to be compensated to an extent of Rs. 20 lakhs. The 1st and 2nd respondents chose to remain ex parte. The claim was resisted by the Insurance Company raising various grounds and asserting that there was no negligence from the part of the driver of the autorickshaw ; that the accident was occurred only because of the negligence on the part of the rider of the scooter, i.e., the deceased, who was riding the scooter without any valid driving licence and further that he was not wearing the head gear, which was in violation of the statutory provisions and resulting in serious head injuries, ultimately resulting the death of the deceased. It is seen that no oral evidence was adduced by either side and the only evidence consists of Exts. A1 to A12 produced from the part of the claimants. After analysing the materials on record, the Tribunal observed that, in spite of filing I.A. No. 1470 of 2014 by the Insurance Company for causing production of the driving licence of the deceased and further steps, it was never produced and hence the petition was closed drawing adverse inference against the deceased. Non -possession of the valid driving licence by the deceased was also evident from the police records as listed by the Tribunal in paragraphs 16 and 17 of the award and elsewhere. After discussing the relevant facts and circumstances, the Tribunal held that the deceased had also contributed to the accident, who was riding the scooter behind the autorickshaw without maintaining the safe distance, that too without valid driving licence and without wearing a helmet. Still, the Tribunal chose to fix negligence only to an extent of 10% upon the deceased. Considering the fact that it was a death claim and observing that a lenient view was required to be taken, the ratio of negligence of the 2nd respondent and the deceased was fixed as 95%:5%, thus, enabling the claimants/appellants herein to obtain 95% of the compensation awarded. This, in turn, is sought to be challenged by the appellants stating that the same is not correct or proper.