The main legal point established in the judgment is the determination of liability and compensation in motor accident claims based on the breach of provisions under the Motor Vehicles Act and relevant rules, the requirement for evidence to support findings of contributory negligence, and the principles for assessing just and reasonable compensation.

JUDGMENT :

ANUJA PRABHUDESSAI, J.

1. The appellants herein have challenged the judgment and award dated 17.8.1996 passed by the learned Tribunal, Nashik in Motor Accident Claim Petition No. 177 of 1990.

2. By the impugned judgment and award, the Claims Tribunal has awarded total compensation of Rs.92,000/- with interest at the rate of 9% per anum from the date of application till actual payment.

3. The appellant no.1 is the widow, the appellant nos.2, 3 and 4 are the children and the appellant no.5 is the father of the deceased Ramesh Pagar who died in a motor vehicular accident on 16.12.1989. The facts in brief are that the moped driven by the deceased Ramesh Pagar with a pillion rider had dashed a against truck bearing No. MCU 1208, which was stranded on the road due to bursting of tyres. The said truck was fully loaded with iron bars, protruding outside the body of the truck. The moped rammed against the said vehicle as a result the iron bars pierced through the body of the rider. The rider of the moped as well as the pillion rider died on the spot as a result of the injuries sustained in the said accident.

4. The Appellants claimed that the accident was caused solely due to rash and negligent driving by the driver of the said truck, which was owned by the respondent no.1 and insured by the respondent no.2 insurance company. The appellants claimed that the deceased was 30 years of age and was earning Rs.20,000/- per annum. The Appellants stated that they were totally dependent on the income of the deceased. The Appellants therefore filed a Claim Petition under Section 166 of the Motor Vehicles Act claiming total compensation of Rs.3 lakhs.

5. The driver and the insured did not contest the proceeding despite due service, and the matter proceeded exparte. The respondent no.2 insurance company denied that the accident was caused due to rash and negligent driving of the driver of the truck and attributed negligence to the rider of the moped. Hence, the respondent no.2 Insurance Company denied its liability to pay any compensation to the appellants.

6. The Tribunal upon considering the evidence adduced by the claimants, held that there was some negligence on the part of the driver of the truck in not showing any indicator or putting on the lights particularly when the steel angles were protruding out of the body of the truck. The Tribunal however held that the rider of the moped could have avoided the accident as there was sufficient space on either side of the road. The Tribunal therefore held that the deceased had contributed to the accident to the extent of 60% and restricted the liability of the respondent no.2 insurance company to 40%.

7. The Tribunal considered the annual income of the deceased as Rs.20,000/- per annum and further deducted 1/3rd towards personal expenses of the deceased. Considering the age of the deceased as 30 years the Tribunal applied multiplier of 16 and computed loss of dependency at Rs.2,16,000/-. The Tribunal also awarded compensation of Rs.15,000/- towards loss of estate and consortium, and assessed the total compensation at Rs.2,31,000/-. Since the liability of the respondent no.2 insurance company was held to be 40%, the Tribunal directed the Respondent no.2 to pay to the appellants compensation of Rs.92,400/- with interest @ 9% per annum from the date of application till realization. Being aggrieved by the impugned judgment and award, the appellants- original claimants have filed this appeal under Section 173 of the Motor Vehicles Act.

8. Mr. Rajesh Datar, the learned counsel for the appellant submits that undisputedly, the iron bars were jutting out of the body of the truck beyond permissible limit. He further submits that the driver of the truck had left the vehicle on the road in a dangerous position. He contends that the driver had breached the provisions of Section 122 of the Motor Vehicles Act and Rule 229 of and Maharashtra Motor Vehicles Rules, 1989. He contends that in the absence of any eviden