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Madhya Pradesh High Court · body

2010 DIGILAW 860 (MP)

Amar Nath v. Balbeer Kour

2010-08-25

R.K.GUPTA

body2010
JUDGMENT R.K. Gupta, J. 1. Though the case is listed in default, but with the consent of the parties, the appeal is heard finally. 2. This is an appeal preferred by the claimants for enhancement of the amount of compensation. 3. The Tribunal by its judgment dated 27th January, 1997 has directed that the deceased who was, driving the Matador bearing registration No. MP-20-C-9138 is negligent up to the extent of 50% and, accordingly, while allowing the claim application, the compensation has been apportioned. 4. The facts leading to the present case are that the deceased Shivcharan Yadav was a driver in the aforesaid Matador and according to the claim application the truck bearing registration No. CIK 8462 dashed with the said Matador. With the result the deceased was died, who was driving the Matador. 5. The Tribunal in para 6 of its award has recorded the findings that on the basis of the Naksha Panchnama, which is Ext.P/2 the Matador was on the wrong side and the truck was coming from the opposite direction. The Tribunal has recorded the findings that when the driver of the truck had seen the Matador coming from the wrong side then the driver of the truck should have applied the brake and should have taken precaution for avoiding the accident, but driver of the said truck has not taken any precaution. On the basis of the same the Tribunal has apportioned the negligence by 50%. 6. In the present case, the Tribunal has also recorded the findings that the driver of the Matador was negligent up to the extent of 50%. The said finding is under challenge. It is to be seen mat the driver of the truck, who has seen the Matador, coming from the wrong side then the driver of the truck should have applied the brake and taken precaution for avoiding the accident, but driver of the said truck has not taken any precaution. There is no formula to fix the responsibility of the driver in cases of the contributory negligence, but the percentage of the negligence is to be apportioned. 7. There is no formula to fix the responsibility of the driver in cases of the contributory negligence, but the percentage of the negligence is to be apportioned. 7. In the present case, merely the matador was coming from the wrong side and the Tribunal has also found that the speed of the said matador was slow, on that basis, the driver of the truck, who had seen the Matador coming from the wrong side then the driver of the truck should have applied the brake and should have taken precaution for avoiding the accident, but driver of the said truck has not taken any precaution. But in the present case, there is nothing on record that the driver has taken any precaution to avoid the accident. The witnesses also stated that the speed of truck was high. 8. In view of the aforesaid, the Tribunal is not justified in fixing the negligence up to the extent of 50% upon the driver of matador, but it should be negligence up to only 25%. 9. In the present case, Learned Counsel for the Appellant has submitted that the multiplier of 15 has wrongly been applied though the multiplier of 17 should have been applied, because the deceased was aged 25 years. 10. The Tribunal has found the annual income of the deceased Rs. 4,800/- and by applying the multiplier of 17, the total amount of compensation comes to Rs. 81,600/- Rs. 4800/- x 17). The Tribunal has also awarded a sum of Rs.3,000/- towards mental suffering, thus the amount of compensation comes to Rs. 84,600/- (Rs. 81,600+3,000). On the aforesaid amount of compensation, since I have already fixed the negligence of the driver of matador up to the extent of 25%, therefore the amount of compensation comes to Rs. 63,450/- (Rs. 84,600-21,150), which shall be paid by the Respondents jointly and severally within a period of 60 days from the date either they receive the certified copy of the order passed today or the same is submitted to them by the claimants. and the interest of the said compensation @ 6% per annum shall also be paid by the Respondents from the date of claim application before the Tribunal i.e. on 8th April, 1994, till the date of realization. Thus, the award stands modified to the extent above. The appeal is partly allowed.