SAIDA BI Vs. MOHD SAID

JUDGEMENT

(1.) This order shall also govern the disposal of M.A. No. 837 of 2010 which is the appeal filed by the respondent No. 2 against the award dated 28.1.2010 passed by M.A.C.T., Ratlam in Claim Case No. 13 of 2009 whereby the claim petition filed by the appellants was allowed and in a case of death of Chhote Khan which took place on 7.12.2008 learned Tribunal assessed the compensation at Rs. 4,64,000 and deducted 50 per cent on account of contributory negligence and also exonerated the respondent Nos. 3 to 5. M.A. No. 829 of 2010 has been filed alleging that amount awarded is on lower side and deduction of 50 per cent amount on account of contributory negligence is illegal while M.A. No. 837 of 2010 is filed against exoneration of respondent Nos. 3 and 5. Since M.A. No. 837 of 2010 is also against the same order, therefore, Mr. R.J. Pandit is requested to make appearance on behalf of Bajaj Alliance Insurance Co. Ltd. in M.A. No. 837 of 2010 also.

(2.) Short facts of the case are that deceased Chhote Khan who was the husband of appellant No. 1 and father of appellant Nos. 2 to 6 was travelling on a truck bearing No. MP 09-KC 5008 which was going from Bhopal to Indore on 7.12.2008. The said truck was being driven by deceased Chhote Khan, owned by respondent No. 4 and insured with respondent No. 5. Along with deceased Chhote Khan, one Jitendra was cleaner who was travelling at the relevant time. The truck met with accident with another truck which was coming from Bhopal bearing No. MP 09-KD 5497 which was driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3. Undisputedly it was head-on collision in which Chhote Khan died, against which claim petition was filed. The claim petition was contested by the respondents on various grounds. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and assessed the compensation at Rs. 4,64,000 and deducted 50 per cent amount on the ground that deceased Chhote Khan was equally liable for the accident. Respondent Nos. 4 and 5 were exonerated because they were the owner (sic and the insurer) of the vehicle which was being driven by deceased Chhote Khan. So far as respondent No. 3 is concerned, it was exonerated because the offending vehicle was not holding the permit at the relevant time.

(3.) Mr. R.N. Dave, learned counsel for appellant, argued at length and submits that learned Tribunal assessed the compensation at Rs. 4,64,000. The learned counsel submits that income of the deceased has been assessed at Rs. 3,000 per month and after deducting 1/5th amount for personal expenses, multiplier of 15 has been applied. Learned counsel submits that income has been assessed on lower side which ought to have been assessed at Rs. 5,000 per month, in addition Rs. 100 per day as travelling allowance as death occurred on 7.12.2008. It is submitted that the learned Tribunal also committed error in awarding meagre amount under other heads and also committed error in deducting 50 per cent for contributory negligence while there is no evidence to prove that deceased was also negligent. It is submitted that spot map is Exh. P4 which shows that deceased was on his side when the accident took place. Learned counsel submits that eyewitness Jitendra was examined by the appellants who has stated in what circumstances the accident occurred. In the facts and circumstances of the case the appeal filed by the appellants be allowed and amount be enhanced and the findings relating to contributory negligence be set aside and the respondent No. 3 be also held liable for compensation as offending vehicle was insured.