HARBANS KAUR Vs. RAJNEESH KUMAR

JUDGEMENT

(1.) Present appeal has been filed by the claimants seeking enhancement of Rs.4.00 lacs granted by the Motor Accident Claims Tribunal, Ambala (hereinafter referred to as 'the Tribunal') vide Award dtd. 9/12/2016 passed in MACP No.39/2015 filed u/s 166 of the Motor Vehicles Act,1988 (hereinafter referred to as 'the Act'). Claimants were mother, brother, and sister of deceased Sandeep Singh. Sole appellant before this court is the mother of the deceased.

(2.) Ld. Tribunal on the appraisal of facts, pleadings and evidence on record held that the deceased had died due to injuries suffered by him in motor vehicular accident that took place on 11/4/2014 due to rash and negligent driving of Mahindra Bolero Govt. Vehicle bearing registration No. HR-68-8508 (hereinafter referred to as 'the offending vehicle') being driven by respondent no.1, owned by respondent no.2 and insured by respondent no.3. The Tribunal awarded compensation as above along with interest @ 7.5% per annum from the date of filing of the claim petition till realization. Respondents were held jointly and severally liable to pay the compensation.

(3.) Ld. counsel for the appellant assails the Award on the ground that the ld. Tribunal has held the deceased liable for contributory negligence to the extent of 50%. It is submitted that the said finding of the Tribunal is contrary to the facts and evidence on record as there was nothing to suggest that the deceased was liable for contributory negligence. Ld. counsel for the appellant refers to the impugned Award to submit that in returning the finding that the deceased was guilty of contributory negligence, ld. Tribunal has relied upon Site Plan Ex.R4. It is submitted that as per judgment of the Hon'ble Supreme Court in Jiju Kuruvila and others v Kunjujamma Mohan and others, 2013(9) SCC 166, it has been held that contributory negligence cannot be ascertained merely on the basis of site plan/ scene mahazar, and direct and corroborative evidence has to be produced to establish contributory negligence. It is submitted that in the present case there was no direct or corroborative evidence before the ld. Tribunal to hold as above. It is further submitted that respondent no.1-driver of the offending vehicle in his written statement has not taken the plea of contributory negligence. It is stated that respondent no.1 was in the bigger vehicle and ought to have exercised greater care and caution than the deceased who was riding motorcycle and therefore, could not be held liable for 50% contributory negligence.