The court held that in cases involving contributory negligence, the apportionment of liability should be based on the degree of negligence of each party and that the multiplier used to calculate compensation should be adjusted based on the income of the deceased.

Ashim Kumar Banerjee, J.

1. One Suresh Chandra Lakhotia residing at 1/A, Love Lock Place, Calcutta was returning from North Bengal in a Maruti van bearing No. WB 74-4409 on 29.5.2000 along with one of his friends. The vehicle dashed a truck that was standing on the road having registration No. WB 23-2354. The truck was insured with New India Assurance Co. Ltd. whereas Maruti van was also insured with New India Assurance Co. Ltd. However, such insurance was taken for the period 14.7.2000 to 13.7.2001. As noted above, the accident occurred much prior to the start date of the policy of insurance. The claimants claimed that the truck was parked on the road without any indicator. The backlight was not on. Hence, the said truck was responsible for the accident and the insurance company was liable to pay compensation. The insurance company denied the claim on the ground that the truck was standing hence, the insurance company was not liable. The accident was caused due to rash and negligent driving of Maruti van. The insurance company denied the fact that Maruti van was having valid insurance as on the date of accident.

The police initiated a case against the two vehicles including the respective drivers.

Siddharth Lakhotia, PW 1, was the son of the victim who deposed that his father had been receiving salary from L.C.C. Infotech Limited. He had other income aggregating to Rs. 21.87,721 (rupees twenty-one lakh eighty-seven thousand seven hundred and twenty-one). He also proved the income of the deceased.

2. Santan Barik, PW 2, is a Chartered Accountant. He was the auditor of the deceased. He also proved the income.

3. Rathin Chakladar, PW 3, is the Income Tax Officer who deposed to support the case of the petitioner as to the income of the deceased. He proved the income tax return and the assessment for the relevant year.

4. Sankar Barman, PW 4, was a vital witness. He was the driver of Maruti van involved in the accident. He deposed that he could not see the backlight of the truck. As there was no backlight, Maruti van dashed the truck. He tried to stop the vehicle by applying the brakes suddenly. However, the tyre slip caused the accident. He suffered grievous injury whereas the other two co-passengers suffered injury and were rushed to the nearby Health Centre. According to him, he was driving at the speed of 34 to 40 kmph.

5. Mahussin Shaik, DW 1, was the driver of the lorry. He deposed that he had been standing on the road unloading the sand. The lorry was standing at the side of the road having the lighting indicator, backlight and sidelight on. Good number of vehicles had passed keeping safe distance from the lorry. In the cross-examination by the petitioner no suggestion was given on his assertion that the vehicle had been kept parked on the side of the road and not in the middle of the road and indicators had been on.

6. Deba Prasad Malakar, DW 2, was the khalasi of the truck. He also supported the driver being DW 1. In cross-examination, no suggestion was put to him on that score.

7. The Tribunal considered each and every aspect and ultimately held both the vehicles having contributory negligence in the accident. According to the learned Judge, New India Assurance Co. Ltd. being the insurer of the truck was responsible for 75 per cent of the compensation whereas balance 25 per cent should be borne by Maruti van owner. The Tribunal awarded compensation of Rs. 1,30,00,000 subject to adjustment of the statutory compensation under section 140, if any paid. Hence, this appeal by the insurance company.

8. Mr. Kamal Krishna Das, the learned counsel appearing for the insurance company, contended that the evidence of the truck driver, as corroborated by khalasi, stood uncontroverted that would clearly absolve the truck from the liability to pay compensation. Hence, its insurer had no liability. On the issue of Maruti van, Mr. Das contended that from the records it would show that the owner of the vehicle categorically admitted that th