QAMARJAHAN Vs. SAYYAD WAZIR

JUDGEMENT

(1.) This appeal under Sec. 173 of the Motor Vehicles Act, 1988 (for short, the said Act) has been filed by the claimants seeking enhancement in the amount of compensation as awarded.

(2.) On 28-6-2000 when the husband of appellant No.1 who was a Driver on a truck was proceeding on Dhule Surat road, he was dashed by another truck owned by respondent No.1 herein and insured with respondent No.2 - Company. The said accident turned fatal and hence the claimants filed petition under Sec. 166 of the said Act seeking compensation of Rs.3,75,000.00. The owner of the offending truck filed his written statement and raised a plea that the deceased driver was rash and negligent in driving his truck. Similar stand was taken by the Insurance Company. After considering the evidence on record, the learned Judge of the Claims Tribunal recorded a finding that the negligence of the driver of the offending truck was to the extent of 70% and that of the deceased was 30%. Total compensation was assessed at Rs.4,00,000.00 and the claimants were awarded 70% thereof being Rs.2,80,000.00. Being aggrieved, the present appeal has been filed.

(3.) Shri Asghar Hussain, learned Counsel for the appellant raised two fold contentions. Firstly, on the aspect of contributory negligence, it was submitted that the offending truck alone was responsible for the accident in view of the spot panchanama on record. That truck was found in the middle of the road and damage to the truck of the deceased was greater. As the driver of the offending truck was not examined, it was submitted that an adverse inference deserves to be drawn and said truck ought to be held entirely responsible for the accident. For said purpose, the learned Counsel placed reliance on the decision in Mangla Ram vs. The Oriental Insurance Co. Ltd. and others, 2018 5 SCALE 363. It was then submitted that the amount of compensation as granted was on a lower side. No provision was made for future prospects and lesser amount was awarded on the conventional heads. It was prayed that the amount of compensation be suitably enhanced.