IMPORTANT POINT
The court established that insurance companies can be directed to pay compensation upfront and recover from vehicle owners, even in cases of contributory negligence.

JUDGMENT :

Shampa Dutt (Paul), J.

1. The present appeal has been preferred by the Insurance Company against the Judgment and Award dated 26.02.2014, passed by Learned Judge, Motor Accident Claims Tribunal, Additional District Judge, Re-designated Court, Paschim Medinipur in MAC Case No. 189 of 2012, under Section 166 of the Motor Vehicles Act. A cross appeal has preferred by the claimants.

2. THE FACTS:-

“On 30.03.12 at 10.30/11 pm while the deceased was standing by the side of his motorcycle on Midnapore- Keshpur road near Kolsanda Kali temple, the offending truck came at a high speed in rash and negligent manner and dashed the motorcycle along with the deceased. As a result of such accident, Panchanan sustained severe injuries all over his person and died instantly. The motorcycle of the deceased was badly damaged. It is stated that the accident occurred due to fault on the part of the driver of the offending truck. The present petitioners being the wife and sons and daughter of the deceased sustained mental pain, agony and financial loss due to the premature, accidental unfortunate death of the deceased and accordingly they approached before tribunal claiming compensation of Rs. 35,00,000/- from the owner as well as insurer of the offending truck u/sec. 166 of M.V. Act on the ground of rash and negligent driving.”

3. O.P./Insurer/National Insurance Company Ltd. was the sole contestant in the claim case, challenging the maintainability of the case on various technical grounds and denying the allegation of the claim petition. O.P./Insurer contended that it has no liability to pay compensation as the accident occurred due to contributory negligence on the part of deceased himself.

4. The claimant examined two witnesses and proved relevant documents, which were marked Ext.1 to 7.

5. No evidence was adduced by the opposite parties.

6. The tribunal finally held as follows:-

“That net salary of the deceased at the time of accident after all statutory deduction is to the extent of Rs. 23,302/-. So, after deducting 1/3rd amount towards personal expenses of the deceased had he been alive quantum of total annual loss of the petitioners is calculated at Rs. 1,86,416/-. As the deceased was aged 55 years plus following averment of his Service Book the tribunal intends to multiply 8 of the annual loss of income of the petitioners. So, after applying multiplier 8 of the annual loss of income of the petitioners the tribunal calculated the total loss of income of the petitioners is at Rs, 14,91,328/-. Besides this P.W.1 being the wife of the deceased is entitled to have further sum of Rs. 9500/- towards funeral expenses, loss of estate and loss of consortium. From the pleadings as well as evidence on record it appears that in respect of the self same accident the present petitioners had not approached before any tribunal for having any compensation u/sec. 140 of M.V. Act. So, in the instant claim case petitioners are entitled to have total sum of Rs. 15,00,828/- along with interest as award of compensation u/sec.166 of M.V. Act and O.P./National Insurance Com. Ltd. is liable to make payment of the aforesaid amount as award of compensation to the petitioners leaving an option left open to them for realization of the entire amount from O.P./owner in case of no D.L. of the driver on the date and time of accident.”

7. Being aggrieved, both parties have preferred the appeal and cross appeal on the following grounds:-

(a) The Insurance Company has stated that the Learned Tribunal did not consider that the driver of the offending vehicle did not have a valid licence at time of accident and that the victim also did not have a licence to ride his motorcycle, and thus there was contributory negligence and as such 50% of the compensation granted is to be deducted and the balance amount is to be recovered from the owner by the Insurance Company.

(b) The Claimants have stated that the Learned Tribunal did not consider the proper multiplier and other relevant facto