IMPORTANT POINT
Various factors needed to be considered for determining compensation in a motor accident case discussed and applied.

Judgment :-

S.B. Sinha, J.

1.1. Leave granted.

2.2. Claimants before the Motor Vehicles Accident Claims Tribunal (for short, `the Tribunal) are before us aggrieved by and dissatisfied with a judgment and order dated 10.6.2008 passed by the High Court of Uttarakhand at Nainital in AFO No.101 of 2006 and AFO No.107 of 2006.

3.3. The deceased Diwan Pal Singh was driving a Maruti car bearing registration No.UHP-4787 belonging to one Gopal Sharan Paliwal from Bareilly to Haldwani. He was an Assistant Engineer working in Uttar Pradesh Avas Evam Vikas Praishad, a statutory organisation. He was accompanied by one T.K. Pandey, one of his colleagues.

4.4. Allegedly, a truck bearing registration No. UP 25-6235 was parked in middle of the road. It did not put on the lights. Claimants contend that although the car was being driven at a nominal speed of 40 km per hour, owing to another vehicle coming from the other side and as the parking lights of the tuck being not on, it was sighted at the last minute. Deceased tried to take the car towards left side but it dashed against the truck resulting in the death of Diwan Pal Singh. A sum of Rs.50,50,000/- was claimed, inter alia, on the premise that his monthly income was Rs.17,431/-per month and he was aged only 42 years.

5.5. The claim petition was filed by his children as also his parents, Shri Chandra Singh pal and Smt. Chandra Devi. Shri Chandra Singh Pal has since expired. Before the Tribunal, one of the appellants was examined who stated that the salary of the deceased was about 17,400/- per month and he was going to be promoted to the post of Executive Engineer. It was furthermore stated that his wife had not received any

family pension. T.K. Pandey, who was accompanying the deceased in the said car was examined as PW2. He, in his deposition, stated :

"This accident occurred due to negligence of Truck Driver. Diwan Pal Singh was going to be promoted on the post of Executive Engineer, if promotion would have taken place then would have received salary of Rs.25,000/- per month."

6. He was not cross-examined on the question with regard to the income of the deceased as also the fact that he would have been promoted to the post of Executive Engineer very soon.

The learned Tribunal was of the opinion that there was a contributory negligence on the part of the deceased also. As regards the amount of compensation, it took into consideration the net salary at Rs.11,625/- and dearness allowance at Rs.4,766/-totaling Rs.16,391/-. It applied the multiplier of 15 on the basis whereof the amount of loss of subsistence worked out to be Rs.29,50,380/-. Out of the said amount 1/3rd was deducted towards personal expenses of the deceased. A further 1/3rd amount was deducted on premise that compensation was being paid in lump sum. 7. Both, the Insurance Company as also the appellants, preferred appeals thereagainst. The High Court, by reason of the impugned judgment, opined that both the drivers of the car as also the driver of the truck having contributed to the accident, the extent of contributory negligence should be calculated at 50% each.

With regard to the amount of compensation, it was held :

"It has come on record that both the vehicles were insured with Oriental Insurance Company Limited. The Tribunal has given a finding that Oriental Insurance Company Ltd. is liable to pay the total amount of compensation shared by both the vehicles involved in the accident. This finding of the Tribunal is perverse as the deceased was the owner of the offending car and he himself was driving the car at the time of accident, therefore, he cannot be termed as third party and hence the claimants cannot be compensated for the death of the deceased by the insurer. Further, the claimants cannot get the compensation upto the extent of 50% each out of total amount of compensation on account of rash and negligence on the part of deceased/driver of Maruti car. Thus, the claimants are entitled to get 50% of the entire amount