IMPORTANT POINT
The court modified the contributory negligence of the deceased from 20% to 10% and awarded additional compensation based on future income considerations.

JUDGMENT :

MAULIK J.SHELAT, J.

1. The present appeal is filed under section 173 of the Motor Vehicle Act (herein after referred to as ‘the MV Act’) by the original claimants against judgement and award dated 29.04.2009 passed by the Motor Accident Claims Tribunal (Auxilliary-I), Mahesana (hereinafter referred to as ‘the tribunal’) in Motor Accident Claim Petition (MACP) No. 573 of 2004. Parties will be referred as per their original status.

2. Short facts:

2.1 On 01.06.2004 deceased Govindbhai was riding his motorcycle bearing registration No. GJ-2-AA-6318 and passing nearby B.K. Cinema, Visnagar. At that point of time, one TATA Sumo Car bearing registration No. GJ-18-A-2679 came in high speed and dashed at rear side of motorcycle of deceased. The rider of motorcycle having sustained serious injuries succumbed to it during the course of treatment.

2.2 The legal heirs of deceased have filed MACP No. 573 of 2004 under Section 166 of the MV Act against driver, owner and insurer of TATA Sumo car for compensation of Rs.36,00,000/-.

2.3 The driver of the TATA Sumo appears to have been deleted below Exh.11 before the tribunal. The owner of the TATA Sumo car has chosen not to appear. Opponent No.3 being insurer of TATA Sumo car though appeared through its advocate but not filed its written statement. Thus none of the opponents have either filed any written statement nor lead any oral or documentary evidence.

2.4 FIR came to be registered by one of the occupants of TATA Sumo Car produced at Exh.21, wherein it has been stated that TATA Sumo car was coming in high speed and deceased was crossing the road on his motorcycle. At that time, driver of TATA Sumo car applied the break but could not control it and the accident inquestion had taken place. The panchnama was submitted at Exh.22 confirming facts narrated in FIR. After appreciating evidence on record the tribunal has found driver of TATA Sumo car 80% negligent, whereas deceased - rider of motorcycle was held 20% contributory negligent for causing accident.

2.5 So far as quantum of compensation is concerned, after appreciating documentary as well as oral evidence submitted by claimants in support of their claim, the tribunal has awarded in all compensation of Rs.11,88,710/-, out which deducted 20% for contributory negligence of the deceased and thereby, awarded Rs.9,50,968/- in favour of the claimants with 7.5 % interest from the date of claim petition till its realisation.

2.6 Being aggrieved and dissatisfied with aforesaid judgement and award, not granting adequate compensation as well as wrongly fixing 20% contributory negligence of deceased, the original claimants have preferred the present appeal.

3. Submissions of appellant:

3.1 Mr. Harnish V. Darji, learned advocate appearing for the claimants at the outset submitted that appellant No.5 i.e. claimant No.5 (father of the deceased) is already died on 12.08.2008 during the pendency of claim petition and appellant No.6 i.e. claimant No.6 (mother of the deceased) died during the pendency of the present appeal on 29.06.2021. Copy of death certificate of appellant No.6 is submitted before us, which is taken on record.

3.2 Learned advocate for the claimants would submit that surviving appellants – original claimant Nos. 1 to 4 are the legal heirs of appellant Nos. 5 and 6 respectively. Thereby, requested this Court to consider the appeal on merits and if so found may grant additional compensation in favour of surviving claimants.

3.3 He would further submit that the tribunal has wrongly considered 20% contributory negligence of the deceased when it has come on record by way of FIR registered against driver of Sumo car that he was driving his car at uncontrollable speed and despite applying breaks, he could not prevent collision. He would further submit that an adverse inference may be drawn against driver of the car as he has not remained present before the tribunal.

3.4 He would further submit that rider of the motorcycle requires to take care whil