JARINA & ORS Vs. MANRAJSINGH @ GOPAL & ANR

JUDGEMENT

(1.) This appeal is preferred by the appellants seeking enhancement of compensation. Claim petition was filed for the accidental death of Sarfoodin @ Babu Bahi, who died in a road accident involving the motorcycle insured with the respondent-insurance company.

(2.) Learned counsel for the appellants has argued that Tribunal was wholly unjustified in holding deceased-Sarfoodin himself responsible for contributory negligence to the extent of 25% but there is no evidence to show that he was negligent and evidence proved that it was motorcycle rider, who hit Sarfoodin while he was walking on the road. Tribunal has wrongly held that deceased-Sarfoodin did not take proper care while crossing the road. Learned counsel in this connection referred to the findings of the Tribunal on Issues No.4 and 5 and argued that statement of AW2 Sirajuddin, who lodged the FIR has not been given much credence observing that he was an eye-witness and that in the FIR he has stated that he had disclosed in the manner, which was told to him by others. On that basis, Tribunal believed that if the deceased would have been careful in crossing the road, the accident would have been avoided. Learned counsel also argued that there were originally seven dependents when the suit was filed but subsequently during pendency of the claim petition, Mst.Nattu, who then was aged 65 years died. Her death had occurred on account of shock received by her due to untimely death of her son deceased Sarfoodin. As per the judgment of Supreme Court in Sarla Verma & Others Vs. Delhi Transport Corporation & Another, 2009 6 SCC 121, in view of fact that there were more than six dependents, 1/5th deductions should have been made, whereas the Tribunal deducted 1/3th. It is therefore prayed that the appeal be allowed.

(3.) Learned counsel for the respondent-insurance company has opposed the appeal and argued that there was no eye-witness to the accident to prove that motorcyclist was solely negligent for the accident and if the deceased was crossing the road, he was expected to be more careful and in that process if the accident had taken place and he was hit by the motorcycle, the motorcyclist cannot be held solely responsible. As regards deductions of 1/5th, learned counsel submitted that number of claimants as on the date of passing of the award, may be taken into account for the purpose of deduction and not the number of claimants at the time of accidental death or on the date of filing of the claim petition, learned counsel therefore submitted that if claimants are reduced from seven to six, deduction for own expenses of the deceased would be then 1/4th and not 1/5th as per the judgment of Supreme Court in Sarla Verma supra. It is therefore prayed that the appeal be dismissed.