The court emphasized the importance of correctly assessing the victim's income and determining liability in road traffic accidents.

JUDGMENT :

Subhendu Samanta, J.

1. The instant appeal has been preferred against the judgment and award dated 05th November, 2004 passed by the Learned Judge, Motor Accident Claims Tribunal 4th ADJ Nadia in MAC Case No. 308 of 2001.

2. The brief fact of the case is that the present respondents being the claimants have preferred an application before the Learned Tribunal u/s 166 of Motor Vehicles Act for getting compensation on the ground that their predecessor was died in a road traffic accident due to rush and negligent driving of the driver of the offending vehicle duly insured under the police of the Insurance Company. The claim case was contested by the Insurance Company by filing written statement. After hearing the parties and after receiving the evidences the Learned Tribunal has awarded a sum of Rs. 18,41,000/-in favour of the claimants.

3. Being aggrieved and dissatisfied with the said award the Insurance Company has preferred the instant appeal.

4. Mr. Singh, Learned Advocate appears on behalf of the Insurance Company submits that the Learned Tribunal has committed an error in passing the impugned award. The income of the deceased was wrongly calculated and the evidence of the employer of the deceases i.e. PW 6 and PW 7 was not at all considered. He further argued that the Learned Tribunal has also failed to appreciate the fact that the deceased was also responsible for the accident. There are contributory negligence on the part of the deceased in such accident. He further argued that from the evidence on record it would reveal that the accident happened due head on collision between a motor cycle and a lorry. The motor cycle was driven by the deceased. In respect of head on collision, the driver of the motor cycle must have the responsibility to avoid the accident. The Learned Tribunal has considered the fact but only passed the order of contributory negligence which is 20% on behalf of the deceased; it should be 50% instead of 20%.

5. Mr. Singh further argued that the deceased has no driving license to drive the motor cycle on that score the victim was also responsible for the accident.

6. Refuting the contention of the appellant, the Learned Advocate for the respondent submits that the impugned award passed by the Learned Tribunal is not at all conformity with the observation of Hon’ble Supreme Court passed in Pranay Sethi. To challenge the said award the respondent also preferred one cross appeal being No. COT 2149 of 2005. He submits that the Learned Tribunal has not correctly assessed the income of the deceased. Moreover, the contributory negligence on behalf of the victim was wrongly calculated. The victim never contributed the accident. The offending vehicle was driving in a rash and negligent manner. The police case started due to accident is ended in charge sheet, wherein the IO submitted the final report stating the driver of the offending vehicle to be the accused. He further argued that the claimants are entitled to get the future prospect which is 50% to the establsihed income of the deceased. The deceased was within the age group of 35 to 40 and he was in a permanent job as a fitter in a Merchant Navy. The occupation and the income of the deceased has been sufficiently proved by the claimants by producing sufficient document as well as the oral evidences. He further argued the claimants are entitled to get the general damages according to the law laid down by the Hon’ble Supreme Court in Pranay Sethi.

7. Heard the Learned Advocates.

8. Perused the materials on record and also perused the evidences adduced before the Learned Tribunal. I have perused the observation of the Learned Tribunal in assessing the compensation.

9. In considering the contributory negligence on the part of the victim it appears to me that the fact of accident goes to show that there was a head on collision. At the time of the accident the victim was driving the motor cycle and PW 4 was the pillion rider. PW 4 deposed before the Learned Trib