BANU BAI Vs. SEWA RAM

JUDGEMENT

(1.) THIS appeal is by the mother and major brothers of the deceased, Nemichand, who died in a motor accident.

(2.) ON 10.7.2000, two newly married couples hired a Tempo Trax from Parasmal Jain, the owner of Tempo Trax. Nemichand was sent along with Tempo Trax as the driver thereof. ON 14.7.2000, Tempo Trax was hit by video coach when it was going from Udaipur to Mount Abu. The impact was so severe that three persons died on the spot including Nemichand. At the time of accident, Nemichand was bachelor of 25 years of age. For the death of Nemichand, his mother and two major brothers filed a claim petition under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) claiming total sum of Rs. 15,25,000 as compensation.

(3.) AFTER having heard learned counsel for the parties and going through the record of court below, we find that the Claims Tribunal has assigned no reason to come to the conclusion that it was a case of contributory negligence. The Claims Tribunal has held that Tempo Trax was a light motor vehicle as compared to video coach. It has also come on record that the impact was so severe that 3 persons travelling in Tempo Trax died on the spot. Thus, it cannot be said to be a case of contributory negligence. Assuming without conceding that it was a case of contributory negligence, then the direction to National Insurance Co. Ltd. to pay Rs. 34,000 would be erroneous because if a person himself is negligent, then he may not get compensation under the general law of Torts. As stated hereinabove, we are not satisfied with the finding that it was a case of contributory negligence and, therefore, we set aside the said finding of the Claims Tribunal and hold that the accident in question occurred due to rash and negligent driving of the video coach. Hence, there is no question of apportionment of liability or compensation. Since, we have held that the driver of the video coach was responsible for causing the accident, therefore, it is only the respondent Nos. 1 to 3 who are jointly and severally liable to pay the compensation and no amount is payable by National Insurance Co. Ltd., respondent No. 5. If National Insurance Co. Ltd. has paid any amount in terms of impugned award, then the respondent No. 3 while making the payment shall deduct the said amount and pay to National Insurance Co. Ltd.