MANORAMA Vs. LUKMANSHAH KASAMSHAH

JUDGEMENT

(1.) THE original claimants, who are the legal representatives of deceased Vijay Dankhade, have filed this appeal being aggrieved by the judgment and Award dated 23-2-1995 passed by the Member, motor Accident Claims Tribunal (Mr. J. H. Bhatia) in Claim Petition No. 48 of 1989, whereby the Tribunal held that the accident occurred due to contributory negligence and as such the awarded total compensation of Rs. 1,12,500/- with interest at the rate of 12% per annum from the date of the application till realisation, which is stated to be grossly inadequate.

(2.) BRIEF facts are required to be stated as under : respondent No. 1 is the driver of the truck bearing registration No. MHV 6230 and this vehicle is admittedly owned by respondent No. 2 and the said vehicle has been duly insured with respondent No. 3 for the period 22-10-1988 to 21-10-1989. On the fateful day, i. e. on 8-5-1989, at about 2-00 p. m. , the deceased vijay was proceeding on his bicycle on Amravati road, near Shegaon chowki, and at that time the truck involved in the accident had come from his back side and gave violent dash to him as a result of which he had fallen down in the middle of the road and sustained grievous injuries. He was removed to the hospital. One Arun Kale had lodged the first information report at the police station Gadgenagar, Amravati, on the basis of which offence bearing Crime No. 237 of 1989 under sections 279 and 338 of Indian Penal Code was registered against the driver of the truck. The victim succumbed to the injuries on 8-5-1989 and post mortem examination was carried out on the same day itself. The doctor, who performed the post mortem examination, opined that the probable cause of death was shock as a result of rupture of heart and other multiple fracture and vital organs leading to severe haemorrhage. The claimant No. 1 is the widow, claimant No. 2 is the minor daughter and claimant No. 3 is the minor son of the deceased. They had filed Claim Petition before the Accident Claims Tribunal on the contentions that the accident occurred due to rash and negligent driving of the truck involved in the accident and that respondent No. 1 was solely responsible for the accident. It is contended that the age of the deceased was 38 years and he was working as a Laboratory Assistant drawing a monthly salary of Rs. 1,718/-and after deducting the personal living expenses the claimants were entitled to the compensation of Rs. 3,25,000/ -. The respondents resisted the claim by filing written statement and contended that the accident occurred due to contributory negligence of the deceased who was riding the bicycle in a zig-zag manner on the road. It is contended that the deceased cyclist after the dash given to him had fallen on the middle of the road and, therefore, he was equally responsible for causing the accident. However, it is contended that since the accident occurred due to the negligence of the cyclist, the claimants are not entitled to receive any kind of compensation. On the aforesaid pleadings, the parties led evidence and the Tribunal on considering the evidence adduced by the parties, has recorded the finding that the accident occurred due to the contributory negligence of the truck driver as well as the victim and he attributed the negligence in the ratio of 75% and 25% on the part of the truck driver and the victim respectively. The Tribunal also recorded the finding that the deceased was drawing the monthly salary of Rs. 1,718/- and after deducting the living expenses assessed the dependency at the rate of Rs. 900/- per month. The Tribunal applied the multiplier of 12 years purchase factor and after deducting 25% on account of contributory negligence, awarded the total compensation of Rs. 1,12,500/ -. This Award passed by the tribunal is under challenge in this appeal.

(3.) MR. Sadavarte, learned counsel for the claimants, contended that the tribunal has committed an error in coming to the conclusion that the accident occurred due to the contributory negligence of the deceased. He contended that the breadth of the tar road was 10 feet having kuchcha strips on either side of the road and the truck had given dash to the deceased's cycle from the back side while overtaking the bicycle and in such a situation the finding of the Tribunal that the accident occurred due to contributory negligence is perverse. He contended that though the deceased cyclist had fallen on the middle of the road, he was not going in a zig-zag manner and the respondent No, 1 Lukmanshah has omitted to depose in examination-in-chief that the victim was riding the bicycle in a zig-zag manner. He contended that the material brought on record in the cross-examination of the driver would show that the accident occurred due to sole negligence of the truck driver and, therefore, the impugned Award passed by the Tribunal cannot be sustained in law.