The attribution of contributory negligence must be based on evidence and the specific facts of the case, and relevant case law should be considered in determining compensation for disability.

JUDGMENT

Navin Chawla, J. (Oral)--This appeal has been filed by the appellant challenging the Award dated 30.09.2020 passed by the learned Motor Accident Claim Tribunal, (West-01), Tis Hazari Courts, Delhi (hereinafter referred to as the `Tribunal') in MAC Case no.301/2017 titled Sh. Suresh Mehto v. Sh. Lakhvinder Singh and Ors..

2. It was the case of the claimant/appellant herein that on 21.03.2017, at about 0500 hours, the claimant/appellant was going from Delhi to Bhatinda by driving a Truck bearing registration no.DL-1GC-1081. When he reached P.S. Sadar Fatehabad, a Truck bearing No.PB-10AZ-2611 (hereinafter referred to as the `offending vehicle'), which was being driven at a very high speed and in a rash and negligent manner, hit the vehicle of the claimant/appellant on the front side. Due to the forceful impact, both the trucks turned and the claimant suffered grievous injuries. The police registered FIR no.0141/2017 dated 21.03.2017, at Police Station Sadar Fatehabad under Section 279/337 of the Indian Penal Code, 1860 (in short `IPC') against the respondent no.1, that is the driver of the offending vehicle. Later a charge sheet has also been filed against the respondent no.1.

3. The learned Tribunal by way of its Impugned Award has attributed the contributory negligence of 25% on the claimant/appellant and based thereon, has directed deduction in the awarded amount. The first challenge to the Impugned Award is on this account.

4. The learned counsel for the appellant, drawing reference to the FIR registered by the police and to the evidence on record, submits that the claimant/appellant had proved on record that the accident had occurred only for the reason that the offending vehicle was being driven in a rash and negligent manner, and the claimant/appellant had done his best to avoid the accident by taking his vehicle to the left side of the road and also showing his hand as a sign to the approaching offending vehicle to slow down. He submits that the learned Tribunal has, without any evidence on record and only on the basis of conjectures, held that as the accident was a head on collision, 25% of the contributory negligence be attributed on the claimant/appellant.

5. On the other hand, the learned counsel for the respondent no.3 submits that the accident occurred on a village road. The FIR indicates that both the trucks overturned because of collision. He submits that therefore, clearly the claimant/appellant was also driving at a high speed. He submits that the learned Tribunal has rightly attributed 25% contributory negligence on the claimant/appellant.

6. I have considered the submissions made by the learned counsels for the parties.

7. At the outset, it is noticed that the respondent nos.1 and 2, that is, the driver and the owner of the offending vehicle, did not appear before the learned Tribunal for the enquiry. The FIR of the accident recorded the statement of the claimant/appellant to the effect that on seeing the offending vehicle approaching him at a high speed, the claimant/appellant moved his truck to the left side of the road in order to avoid the collision. In the evidence before the learned Tribunal, the Claimant stated that he even waived to the approaching offending vehicle with a hope that the offending vehicle will slow down, however, that did not happen.

8. The learned Tribunal, in the Impugned Award has on the issue of attribution of contributory negligence on the Claimant, observed as under:

"29 It has been seen that though, PW-1 has categorically admitted that there was head on collision in between the two vehicles but PW-1 has stated that the negligence in causing the accident was entirely on the part of the respondent no.1 who was driving the offending vehicle.

30. Ld. Counsel for the insurance company, in this respect, has placed the reliance on the judgment pronounced by the Hon'ble High Court of Guahati in the matter cited as II (2019) ACC 342 (Gau.) titled as Oriental Insurance Co. It