Vandana Narendra Dhangar & Ors. vs Dilip Pundlik Chaudhari & Ors.

Heard learned Advocate for the Appellants-claimants and learned Advocate for Respondent No.4 – Insurance Company.

The Tribunal, Malegaon has directed Respondent Nos. 1 to 3 to pay the amount of Rs. 3,90,000/- for the injuries caused due to death of Narendra. The Appellant No.1 is the wife of the deceased whereas Appellant Nos.2, 3 are minor children of the deceased and Appellant Nos.4 and 5 are parents of the deceased. They were depending upon the income of the deceased.

On the fateful day of 1^st February 2015 at about 8.00 p.m. deceased Narendra was proceeding on a motor cycle from Daundicha to Nandurbar. When he reached to Chauphale phata, at that time the truck insured with the insurance company was parked on road. It was a stationery vehicle. The driver has not taken precaution by putting on tale lamp. There was also no sign board of parking. Narendra hit the truck from backside and he sustained injuries and he died on 5^th February 2015. There was an offence registered against the truck driver. Even the driver was chargesheeted. On this background, the claim petition was filed. It was contested by the owner and driver and also by the Insurance Company. They have denied that there was any negligence in parking the vehicle. In fact they have pleaded that it was a deceased only who drove motorcycle rashly and negligently and he personally be held responsible for the accident.

The oral evidence was given by the widow of the deceased. While appreciating the evidence the income of the deceased was considered as Rs.5000/- which according to Appellants was on a lower side. He was earning income of Rs.7000/- by way of salary from grocery shop and also earning Rs.4000/- per month from auto rickshaw driving business. The Tribunal has held the deceased and the driver of the truck responsible equally to the extent of 50%. The findings are challenged on following grounds:

appellants the deceased was having a bright future.

After hearing both the sides and after going through the evidence, I find that the issue of contributory negligence is rightly decided by the Tribunal. There was lapse on the part of the truck driver in parking the vehicle on the road to certain extent and not putting on a tale lamp and any signal. At the same time when the deceased was driving motor cycle which was having tale lamps was also negligent because if he could have driven it in a moderate speed, he could have noticed the truck and could have avoided the accident. I do not find any reason to interfere in those findings but on the calculation aspect certain interference is required. I am giving my own findings as below:

The income is Rs.7000/- by way of salary from grocery shop and Rs.4000/- from auto rickshaw business. No doubt there are no documents but widow of the deceased has given evidence. She being the wife, she must be aware about income of her husband. The Tribunal has considered the income of Rs.5000/- per month. Certainly, it is on lower side. I am inclined to consider the income of the deceased to the extent of Rs.9000/- per month, considering grocery shop salary to the extent of Rs.7000/- and considering the income from auto rickshaw business to the extent of Rs.2000/- per month.

The age of the deceased was 32. In view of that the following calculation has to be done:

I find interest of 9% is on higher side. In view of that following order is passed:

First Appeal is disposed of in the aforesaid terms.