New India Assurance Company Ltd. vs Lataben and Others

K.J. Thaker, J.—By way of this appeal, the present appellant has challenged the judgment and award dated 12.12.2008 passed by the Motor Accident Claims Tribunal (Main), Navsari, in M.A.C.P. No. 53 of 2007, whereby the learned Tribunal has awarded a sum of Rs. 8,76,540/- to the claimant with interest at the rate of 9% per annum from the date of from the date of filing of the petition till realization. The brief facts leading to filing of this appeal are that on 10.01.2007, an vehicular accident occurred between two motor cycles bearing registration Nos. GJ-21-N-0071 and GJ-15-P-2352 and due to the said accident one Thakorbhai Lallubhai Patel expired. Therefore, the legal heirs of the deceased filed claim petition being M.A.C.P. No. 53 of 2007 before the Tribunal for compensation. The Tribunal after hearing learned advocates for both the parties and after recording the evidence decided the claim petition and passed the award as stated hereinabove against which the present appeal is preferred by the appellant-Insurance Company.

At the outset learned counsel for the Insurance Company has orally conveyed that in light of the judgment of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, he no longer would press the issue of quantum. Hence, the award as far as quantum is concerned and the calculation made therein is not disturbed.

The next argument of learned advocate for the appellant is regarding contributory negligence of the deceased, he has taken this Court through FIR and Panchanama of the place of offence, which is prepared after five days, despite that there were blood marks seen on the middle of the road. He relied upon the decision of the Apex Court in the case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others,

On going through the panchnama and on going through the decisions cited before the Tribunal, I am convinced that this is a case of contributory negligence since the incident in question was a head of collusion on the middle of the rod. However, considering the manner in which the accident in question occurred and in which the deceased has lost his life. The fact that the driver, who is still alive, has neither stepped into the witness box nor he has filed any reply, but it is apparent from the record that his speed was more and excessive compare to the speed at which the deceased might have driven the vehicle. Thus, I am satisfied with the submission made by learned advocate for the appellant that this is a case of contributory negligence.

The decision relied upon by learned advocate for the appellant is of no avail, though it is a head of collusion and cannot be accepted that both the drivers were equally negligent. However, this takes this Court to the aspect of percentage of negligence on the part of the deceased. Looking to the decision of this Court in the case of Bhikhup Agarwal Vs. Lilaben Laljibhai Vala and Others, I am of the opinion that if 10% negligence is attributed to the deceased, the same would meet ends of justice. For the foregoing reasons, the present appeal is partly allowed. The contributory negligence on the part of the deceased is attributed to the extent of 10%. It is clarified that if the amount awarded by the Tribunal, is deposited before the Tribunal, the Insurance Company shall be entitled to refund of 10% of the said amount. Rule is made absolute to the aforesaid extent.