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2013 DIGILAW 443 (MP)

Vidhya Devi v. Govind

2013-04-02

J.K.MAHESHWARI

body2013
JUDGMENT : J.K. Maheshwari, J. By the consent of the parties, case is finally heard. Being aggrieved by the award dated 8.5.2012 passed by Fifth Additional Member, Motor Accidents Claims Tribunal, Indore in Claim Case No. 49 of 2011, this appeal has been preferred by the claimants seeking enhancement and to assail the finding of contributory negligence to the extent of 50:50. As per the claim averments, on 19.5.2008 at about 11.30 in the night near Khandesh Chemical Factory at Songir, a Maharashtra vehicle owned by respondent No. 1 mini truck bearing registration No. MH 18-M 5653 driven by respondent No. 2 rashly and negligently dashed deceased Ashok. The legal heirs of deceased have filed claim petition seeking compensation to the tune of Rs. 21,00,000 u/s 166 of the Motor Vehicles Act. 2. The Claims Tribunal recorded a finding of contributory negligence of the driver of the car wherein the deceased was sitting and also the driver of mini truck. Thus, as per such finding, from the total compensation of Rs. 6,92,000, Rs. 3,46,000 has been directed to be paid to the legal heirs of the deceased. 3. Mr. Nema, learned counsel for the appellants, contends that the deceased was sitting in a car which was driven by the driver, not by him. In such a case due to contributory negligence, if any, compensation so awarded by the Tribunal cannot be deducted because the deceased was not negligent to cause the accident. In such circumstances, compensation so awarded by the Claims Tribunal may be directed to be paid in full setting aside the finding of contributory negligence. It is further contended that the claimants have wrongly been paid court-fee for setting aside the finding of contributory negligence, therefore, said amount of court-fee which is to the extent of Rs. 34,600 may be refunded to him. In this regard I.A. No. 1782 of 2013 has also been filed. In view of foregoing, it is urged that the finding of contributory negligence may be set aside with a direction to refund the court-fee which is to the extent of Rs. 34,600 to the claimants. In view of foregoing, being satisfied by the award, the appellant does not wish to press this appeal for enhancement. 4. Mr. In view of foregoing, it is urged that the finding of contributory negligence may be set aside with a direction to refund the court-fee which is to the extent of Rs. 34,600 to the claimants. In view of foregoing, being satisfied by the award, the appellant does not wish to press this appeal for enhancement. 4. Mr. C.P. Singh, learned counsel for respondent No. 3, has argued in support of the finding so recorded by the Tribunal and has contended that the finding of contributory negligence has rightly been recorded by the Tribunal. On the point of refund of court-fee to the extent of Rs. 34,600 he is having no objection because to assail such finding, court-fee is not required to be paid. It is also submitted by him that as the claim of enhancement has not been pressed, therefore, no submission is required in this regard. After hearing learned counsel for the parties and on perusal of the record, the manner in which the accident has taken place, it is clear that deceased was sitting in a car which was driven by the driver of the car. The accident has taken place due to collision of said car with mini truck. It is not a case where the deceased was driving the car himself which collided with mini truck. In such circumstances, the finding of contributory negligence recorded by the Claims Tribunal and the deduction made accordingly in the impugned award is unsustainable. In that view of the matter, the compensation so calculated by the Claims Tribunal of Rs. 6,92,000 be paid full to the claimants setting aside the finding of contributory negligence. It is to be observed here that for setting aside the finding of contributory negligence, court-fee, as paid by the claimant, of Rs. 34,600 is not required to be paid by appellants therefore, allowing I.A. No. 1782 of 2013, refund of the said court-fee is directed to the claimants and the certificate be issued by the Registry in this regard. On setting aside the finding of contributory negligence, for remaining amount, interest is payable as awarded by the Claims Tribunal. As the claim of enhancement has not been pressed by the claimant, therefore, with the aforesaid modification in the impugned award, this appeal stands disposed of. In the facts and circumstances of the case, parties to bear their own costs.