NEW INDIA ASSURANCE CO LTD Vs. SHARDA DEVI

JUDGEMENT

(1.) We have heard Shri Vinay Khare, learned counsel appearing for the New India Assurance Co. Ltd. Shri S. D. Ojha has accepted notice and appears for the claimant-respondents.

(2.) The first appeal from order under Section 173 of the Motor Vehicles Act. 1988 arises out of the award of the Motor Accident Claims Tribunal/Additional District Judge, Court No. 17, Meerut in M.A.C. No. 1235 of 2009. Smt. Sharda Devi and others v. Rahul Gupta and another, dated 16.8.2011, by which an award of Rs. 4.76.900 with 6% interest from the date of filing of the claim petition has been directed to be paid to the widow and two minor children of the deceased.

(3.) It is alleged by Shri Vinay Khare. learned counsel for insurance company, that the application under Section 170 of the Act was allowed. Although the accident is not denied, the Tribunal has erred in law in failing to take into account the contributory negligence of the deceased driver of the Motor Cycle No. U. P. 15-R-247. who died as a result of accident with Indica Car No. UCM-00-T-46425 on 27.9.2009. He was not wearing the helmet and was driving the motor cycle with his wife and two minor children aged 14 years and 8 years. It is stated that the Tribunal has failed to consider the contributory negligence of the deceased for not wearing the helmet and driving the motor cycle with three pillion riders. The contributory negligence has been allowed only to the extent of 5%. which is much less taking into account the conditions in which the motor cycle was being driven.