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2011 DIGILAW 199 (CHH)

Sushila Bai v. Devendra Tiwari

2011-06-20

NAWAL KISHORE AGARWAL, RAJEEV GUPTA

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JUDGMENT : Nawal Kishore Agarwal, J. This is claimants' appeal seeking enhancement in the amount of compensation awarded by the Fourth Additional Motor Accidents Claims Tribunal, Durg vide its award dated 10.1.2003 passed in Claim Case No. 81 of 2001. On an application filed u/s 166 of the Motor Vehicles Act, 1988 preferred by the claimants-appellants claiming Rs. 51,28,208 as compensation for the death of Mahesh Chandra Sengar in the accident dated 17.5.2001 by Fiat Uno car bearing registration No. MP 23-LA 1709, learned Tribunal has awarded a total sum of Rs. 5,94,428 along with interest at the rate of 12 per cent per annum from the date of application till its payment against the driver, owner and insurer of the offending vehicle. 2. Learned Tribunal on a close scrutiny of the evidence led held that the accident took place due to collision of offending vehicle Fiat Uno car and motor cycle bearing registration No. MP 24-ED 2745 being driven by the deceased Mahesh Chandra Sengar at the time of accident in which deceased was also liable to the cause of accident to the extent of 40 per cent; offending car was insured with the respondent No. 3 at the time of accident and as the respondent No. 3, Oriental Insurance Co. Ltd., could not establish breach of policy conditions, it is liable to pay compensation to the claimants jointly and severally along with driver and owner of offending vehicle; taking into consideration entire salary of the deceased as claimed and looking to the age of the deceased as 49 years, by applying multiplier of 12 the amount of compensation has been assessed at Rs. 9,74,880. After deducting 40 per cent of it for the contribution of the deceased in the cause of accident awarded Rs. 5,84,928 in favour of the claimants along with interest at the rate of 12 per cent from the date of application till its payment against the driver, owner and insurer of the offending car. 3. Mr. Praveen Dhurandhar the learned counsel for the appellants, would submit that learned Tribunal has grossly erred in holding that the deceased contributed to the accident to the extent of 40 per cent. 4. On the other hand, Mr. Shailendra Sharma, learned counsel for the respondent No. 3, and Mr. 3. Mr. Praveen Dhurandhar the learned counsel for the appellants, would submit that learned Tribunal has grossly erred in holding that the deceased contributed to the accident to the extent of 40 per cent. 4. On the other hand, Mr. Shailendra Sharma, learned counsel for the respondent No. 3, and Mr. Varunendra Mishra, learned counsel for the respondent No. 2, would support the award and would submit that in the facts and circumstances of the case, learned Tribunal has rightly held that the deceased contributed to the cause of accident to the extent of 40 per cent. 5. We have heard learned counsel for the parties and perused the record of the Tribunal. 6. The core question involved in the case for decision-making is whether learned Tribunal has fallen in error in holding the deceased responsible to the cause of accident to the extent of 40 per cent and thereby deducting 40 per cent amount of compensation towards contributory negligence of the deceased. 7. As per para 5 of the statement of AW 2, Ashok Kumar, examined by appellants-claimants when the accident occurred, Fiat Uno car was running on the Raipur-Bhilai Main Road and the deceased was turning to his right from main road to the side road where his office was situated. 8. As per rule 9 of the Rules of the Road Regulations, 1989, the driver of a motor vehicle shall, on entering road intersection at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicle proceeding along that road and in any other case give way to all traffic approaching the intersection on his right hand. As per rule 13(c) when a driver of a motor cycle is about to turn to the right or to drive to the right hand side of the road in order to pass another vehicle or for any other purpose, he shall extend his right arm in a horizontal position outside of and to the right of his vehicle with the palm of the hand turned to the front. There is no evidence on record showing that the deceased after following the traffic rules turned to his right side. 9. There is no evidence on record showing that the deceased after following the traffic rules turned to his right side. 9. The offending car was running on the main road and, therefore, if the deceased, driving a motor cycle wanted to turn towards his right side to approach and enter the side road, he should have taken care of any other vehicle coming or running on the main road. It appears that deceased took a sudden turn and that led to the accident. It is equally true that whenever a car driver drives a vehicle on the main road, he is also required to see person or vehicle turning to his right side. Thus, it appears that deceased was negligent to the extent that he took a sudden turn without following traffic rules and without caring about offending car approaching the spot and the car driver was also negligent in not taking care of the vehicle turning to its right side. Thus in the opinion of this court, both the persons, i.e., deceased as well as driver of the car are responsible and contributed to the accident and thus learned Tribunal has not erred in assessing the amount of compensation holding deceased responsible and contributing to the cause of accident to the extent of 40 per cent. 10. In view of above, in the considered opinion of the court, the learned Tribunal has not erred in holding the deceased responsible and contributing to the cause of accident to the extent of 40 per cent and thereby reducing the compensation to the above extent and contention raised by Mr. Dhurandhar is devoid of merit. 11. No other point has been raised. For the reasons mentioned hereinabove, the appeal fails and is dismissed. No order as to costs.