JUDGMENT :

Madhav J. Jamdar, J.

1. The Appellants, who are the original claimants, have by way of this First Appeal filed under Section 173 of the Motor Vehicles Act, 1988 challenged the legality and validity of the Judgment and Award dated 19th October 2016 passed by the learned Chairman, MACT, Thane in MACP No. 933/11 seeking an enhancement in the compensation awarded. At this stage only, it is to be noted that although the amount of compensation determined by the learned Tribunal was Rs.2,58,44,336/-, however, only Rs. 1,03,38,144/-was granted, as the learned Tribunal returned a finding of contributory negligence. The Tribunal apportioned the contributory negligence between the deceased and the driver of the offending tempo as 60% and 40% respectively.

2. The Appellants have challenged the said finding of the Tribunal that the accident had occurred due to 60% negligence of the deceased. According to the Appellants, there was no negligence of the deceased and the accident had occurred solely due to the rash and negligent driving of the driver of the offending tempo.

3. It is also significant to note that the said Judgment and Award dated 19th October 2016 is not challenged by the Respondents including Respondent No. 2, i.e. the Insurance Company. Thus the Respondents have accepted the computation of compensation and the finding that the accident had taken place at least due to 40% negligence of the driver of the offending tempo.

4. Heard Mr Sandeep Mishra, learned counsel appearing for the Appellants, and Mr Rajesh Kanojia for Respondent No.2. None appears for Respondent No. 1, i.e. the owner of the offending tempo though served.

5. Mr Mishra submitted that the finding recorded by the learned Tribunal regarding 60% negligence of the deceased and 40% negligence by the offending tempo is contrary to the evidence of Vikas Kisan Kuthale (AW-2) and Amit Venugopal Nayar (AW-3). He relied on the spot Panchanama (Exhibit “32”) dated 2nd February 2021. He submitted that the evidence on record clearly shows that the accident had taken place solely due to the rash and negligent driving by the driver of the offending tempo and therefore the Appellants are entitled to 100% compensation. It is to be noted that Mr Mishra, the learned counsel of the Appellants advanced only these submissions and none else.

6. On the other hand, Mr. Rajesh Kanojia, learned counsel for the Respondents, submitted that the said alleged eye witnesses namely, Vikas Kisan Kauthale (AW-2) and Amit Venugopal Nair (AW-3), are not mentioned as eye witnesses in the Police record. He submitted that therefore they cannot be considered as eye witnesses and their evidence cannot be relied on. He submitted that the Police have filed FIR against the deceased under Sections 279, 337, 338, 304-A and 427 of the Indian Penal Code, 1860 read with Section 184 of the Motor Vehicles Act, 1988. He therefore submitted that there is no substance in the contention that there is no contributory negligence by the deceased. He further submitted that the learned Tribunal has rightly held that there is 60% negligence of the deceased and therefore it has been rightly held that the Appellants are entitled only to 40% of the computed compensation. He submitted that therefore no interference in the impugned judgment and award is warranted.

7. We have heard the arguments on 3rd January 2022 and while preparing draft of this Judgment, we noticed some decisions on the question of contributory negligence and quantum of compensation that will be relevant to decide this Appeal. Therefore we passed the following order on 17th March 2022:

“1. We reserved the judgment in this matter on 3rd January 2022. When draft has been prepared, we noted some decisions on the question of contributory negligence and quantum of compensation that will be relevant. The relevant citations are noted below:

1. Dulcina Fernandes vs Joaquim Xavier Cruz ((2013) 10 SCC 646).

2. Bimla Devi and Ors vs Himachal RTC & Ors ((2009) 13 SCC 530).