BHANWARSINGH Vs. GATUBAI

JUDGEMENT

(1.) THE owner of the vehicle, the appellant, has filed this appeal aggrieved of the award dated 8-8-1980 passed in Claim Case No. 16 of 76 by Shri V.S. Yadav, Member, Motor Accident Claims Tribunal, Mandsaur.

(2.) BRIEF facts, leading to this appeal are that one Prabhulal Kalal, the owner of the goods, carried his goods in the tractor and trolley bearing registration No. MPI 9661 and MPI 9662, which was being owned by the appellant was being driven by the driver Fatahlal, respondent No. 8. The tractor and the trolley, at the relevant time, were insured with the respondent No. 9 the New India Insurance Company Ltd. After unloading the goods while Prabhulal was returning to his house from Suwasara, he was sitting on the mudguard of the tractor. The tractor was being driven rashly and negligently. The tractor driver, at place, applied the brakes as a result of which Prabhulal lost his balance and fell down on the road. He was crushed by the rear wheel of the tractor, as a result of which he succumbed to the injuries and died instantaneously.

(3.) AFTER recording of evidence the Tribunal held that the death of Prabhulal occurred due to rash and negligent driving of the tractor by the driver and at the relevant time as the driver was driving the tractor, hence the appellant owner is vicariously liable to pay compensation. The dependency was arrived at the rate of Rs. 200/- per month and the annual dependency at Rs. 2400/-. Applying a multiplier of fifteen, compensation was arrived at Rs. 36,000/-. after deducting 20 per cent towards lump sum payment, the Tribunal fixed the compensation of Rs. 28,800/-. But in Para 28 of the award of the Tribunal held that as the deceased was also responsible for accident, because he was sitting on the mudguard of the tractor and was not also careful as a result of which be fell down and was crushed to death. Therefore, because of the contributory negligence of the deceased the liability was apportioned between the driver and the deceased at the rate of two-third and one-third of the compensation. After deducting one-third of the compensation from the amount of Rs. 28,000/-, the Tribunal awarded compensation of Rs. 19,200/-. Being aggrieved of this award the appellant has filed this appeal and after notice, the respondents-claimants have preferred cross objections under Order 41, Rule 22 CPC for enhancement of the compensation and interest at the rate of 12 per cent per annum from the date of the application till payment, instead of interest at the aate of 6 per cent as awarded by the Tribunal.