NARSI RAM Vs. MIA KHAN

JUDGEMENT

(1.) IN Misc. Appeal No. 173/89 claimants are the parents, brothers and sister of deceased Laxminarayan, while in Misc. Appeal No. 172/89 the claimants are the parents and brothers and sister of the deceased Abdul Reshid. The claimants in both the cases have filed appeals under section 110 -D of the Motor Vehicles Act 1939 (for short the 'Act') for enhancement of the

(2.) FACTS giving rise to the appeal are these : On the fateful day of 12th June, 1987 at about 4.30 p.m. the two deceased Laxminarayan and Abdul Rashid with one Gaya Prasad Uohsare Sub -Engineer of the P.W.D. of the Government of M.P. were going on a Rajdoot Motor Cycle. The Bus No. MBD - 5672 owned by respondent No. 3, driven by respondent No. 1 and insured by respondent No. 3 was coming from the opposite direction which hit the motor cycle from its right side as a result of which the motor cycle was entangled in the right front wheel of the bus and was dragged for a distance. The motor cyclist - Laxminarayan and other two pillian riders fell down on the left side of the road. Out of the three, Laxminarayan, Abdul Rashid died instantaneously. Hence, the legal representatives of the deceased - Laxminarayan aged 24 years, claimed compensation of Rs. 5,30,000/ - (Five lacs thirty thousand), while legal representative of deceased Abdul Rashid aged 25 years claimed Rs. 5,32,000/ - (Five lacs thirty two thousands) on the averments that both the deceased were contractors and were earning about Rs. 15,000/ - per year. The claim of compensation for the death of Abdul Rashid included the amount of Rs. 2,000 / - towards the damage to the motor -cycle. The respondents denied their liability and contended that the accident was caused due to rash and negligent driving of the motor -cycle on which three persons were riding in breach of section 85 of the Act. The motor cycle was not in control of the motor cyclist, seeing the motor cycle respondent No. 1 the bus driver drove the bus towards its complete left to avoid the accident but the motor cyclist struck with the right side of the bus. The accident was inevitable because of the sole negligence of the motor cyclist. The respondent No. 3 contended that in terms of the policy, the liability of the insurance company is limited to Rs. 50,000/ -.

(3.) SHRI R.S. Jha learned counsel for the appellants contended that the finding of the Tribunal on contributory negligence is against the totality of the evidence and is based on conjectures and surmises. The respondent No. 1 has admitted that the three persons riding on the motor cycle were coming from opposite direction in the middle of the road. Therefore, he had ample opportunity to stop the bus so as to avoid the accident, but, the bus was not stopped. The accident occurred on the left side of the road. The motor cycle struck against the right side of the bus and got entangled in the right wheel and was dragged for a distance of about 20 feet. The three riders of the motor cycle fell on the left side of the road. The impact shows that the bus was coming with a high speed and was not in control of the driver, as a result of which the accident occurred, for which the bus driver was alone responsible. On quantum of compensation it was submitted that it is established beyond doubt that the two deceased were building contractors, but, as both were not registered as Cass - II contractors, the Tribunal on surmises assessed the monthly income of the deceased as Rs. 600/ - while from the evidence led the income was. 1000 -1200/ - per month. Therefore, compensation as claimed ought to have been awarded.