IMPORTANT POINT
The court clarified the principles of contributory negligence, emphasizing that a pedestrian's crossing does not automatically imply negligence, particularly when the driver fails to exercise due caution.

JUDGMENT

1. This Appeal has been filed under section 173 of the Motor Vehicles Act, 1988 (the 'M.V. Act') challenging the judgment and award dated 16th August, 2004 passed by the Motor Accident claims Tribunal, Mumbai in Application No.2405 of 1995 partly allowing the Application with proportionate costs and further ordering the original owner of the offending vehicle and the Insurance Company to jointly and severally pay Rs.1,40,000/- to the first Appellant along with interest at the rate of 6%.

2. The Appeal was admitted on 16th January, 2007 and the hearing was expedited.

3. The brief facts are that on 24th March, 1995 at about 6.30 p.m. one Mr.Harsukhalal L. Dhuruva aged 65 years, a business partner of Arun Enterprises and Arun Plastic Printer and commission agent, was crossing Peddar road from west to east after coming from Nalanda society along with his nephew and going to his office at Masjid Bunder. After crossing half of the road, Mr.Harsukhalal Dhuruva and his nephew came on to the divider and just when Mr.Harsukhalal Dhuruva had taken one step on to the road towards the eastern half, one car came from the side of the Mahalaxmi temple at a very high speed and gave a dash to Mr.Harsukhalal from the right side of the bonnet of the said vehicle bearing No.MGA 8452, such that Mr.Harsukhalal was thrown 20 feet away. Thereafter, one traffic police-man, who was standing at some distance, came running and some people also rushed to the spot whereafter Mr.Harsukhalal Dhuruva was taken to the nearby Jaslok Hospital by the same offending car which had stopped after the accident at a distance. On 30th March, 1995 while undergoing the treatment at the Jaslok hospital, Mr.Harsukhalal Dhuruva succumbed to his injuries.

4. Two sons of the deceased Harsukhalal L. Dhuruva then preferred a claim application before the Motor Accident Claims Tribunal, Mumbai for compensation under the M.V. Act against the owner of the offending vehicle as well as the insurer of the offending vehicle viz. New India Assurance Company Limited for compensation of Rs.4,00,000/- along with interest and costs.

5. Before the Tribunal, the owner of the offending vehicle remained absent and also did not file any written statement and the case proceeded ex-parte against him. The Insurance Company did not deny that the said car was insured with it on the date of accident but filed its written statement inter-alia stating that the accident did not happen due to the rash driving of the driver of the offending vehicle.

6. The Tribunal after considering the evidence of Rajendra H. Dhuruva, the second Applicant, who had not seen the accident, the evidence of Nayan Dhurva who was the nephew of the deceased and an eye-witness to the accident as well as the evidence in the form of the police papers including the First Information Report ('FIR), the spot panchanama concluded that the deceased undisputedly died on 30th March, 1995 as a result of the accident. Observing that as there was no pedestrian crossing at the spot, the deceased did not have right of crossing the road and inferring that even though the car was very near from him, the deceased did not bother to take care not to cross the road and ought not to have stepped down from the divider, held that there was contributory negligence on the part of the deceased to the extent to the 60%. Relying upon the findings in the Spot panchanama, that tyre marks of the wheel of the car are not seen on the spot, the Tribunal inferred that the driver did not try to avoid the accident by applying brakes; that the FIR revealed that the driver had been arrested immediately and presumed that the driver was negligent though the insurer did not try to examine the driver to disprove the presumption and held that the car driver was 40% negligent.

7. Coming to the quantum, based on the bills of the hospital, medicines, the assessment orders with respect to the income tax returns of the deceased, the evidence of Rasiklal Shah - the tax consultant