NATIONAL INSURANCE COMPANY LIMITED Vs. SANDHYA DAS

JUDGEMENT

(1.) This appeal is filed by the insurance company to challenge the award dated 06.04.2019 passed by the Motor Accident Claims Tribunal, Gomati Judicial District, Udaipur in case No. T.S.(MAC) 19 of 2014.

(2.) One Gautam Das was travelling on his motorcycle on 04.04.2013 in the afternoon hours when it met with an accident from oncoming bus causing fatal injuries. His widow, minor son and aged mother filed above mentioned claim petition seeking compensation from the owner, driver and insurer of the said vehicle. The Claims Tribunal held that the accident occurred due to sole negligence of the driver of the bus. The Tribunal awarded compensation of Rs.44,02,992. This award the insurance company has challenged on two grounds. Firstly, that the deceased himself was negligent in part in causing the accident and secondly, that the Claims Tribunal has awarded consortium of Rs.40,000 each to the three claimants. With respect to the rest of the computation of compensation, no serious dispute is raised none is possible since the deceased was employed as constable in Border Security Force and, therefore, his income as well as age were well documented.

(3.) I, therefore, focus only on these two aspects argued before me. With respect to the negligence, the evidence on record would suggest that the claimants had examined one Babudhan Sarkar as PW-2 who was passenger in the bus. He was thus an eye witness and had stated that it was the bus driver who was driving the vehicle rashly and negligently which caused the accident. Significantly, the insurance company had not examined the driver of the bus who would be the best person to throw light on the manner in which the accident took place. In view of the evidence of eye witness laid by the claimants and the refusal of the insurance company to examine the driver of the bus, I find no hesitation in confirming the view of the Claims Tribunal on the issue of negligence. No contributory negligence, therefore, can be fastened on the deceased.