Contributory negligence must be substantiated by evidence; the court found the deceased was not negligent and enhanced compensation accordingly.

JUDGMENT :

(HEMANT M. PRACHCHHAK, J.)

1. Mr.Rakesh Patel, learned counsel has tendered the copy of the death certificate of appellant No.4 – Sankuben Wd/o. Ganeshbhai Hedubhai Chaudhari issued by the Competent Authority, which is taken on record. Mr.Patel, learned counsel seeks permission to delete appellant No.4. Permission sought for is granted. The appellant No.4 is deleted.

2. The First Appeal No.2459 of 2010 is filed by the appellants – original claimants seeking enhancement of the compensation amount awarded by the Motor Accident Claims Tribunal (Aux.II), Mehsana (hereinafter referred to as “the Tribunal) in Motor Accident Claims Petition No. 518 of 2006 and First Appeal No.2937 of 2010 is filed by the appellant – Insurance Company against the quantum and negligence.

3. Since, the first appeals arise out of the same judgment and award, the same is heard and decided together by this common judgment and order.

4. Brief facts of the present case are that on 23.04.2006 at about 21.00 hours Chaudhari Pethubhai Ganeshbhai and his wife were standing at the road nearby Tavadiya pickup stand on Highway Road, at that time, the driver of truck bearing registration No.RJ-7-G-5336 owned by respondent No.1 came from Unjha and going towards Palanpur in rash and negligent manner and in excess speed and dashed with the circle and, thereafter, dashed with said Pethubhai and his wife, due to which, they both succumbed to the serious injuries.

4.1 The claimants – legal heirs of the deceased had preferred M.A.C.P. No. 518 of 2006 before the Tribunal which came to be allowed and awarded Rs.18,57,192/- towards the compensation against the claim of Rs.50,00,000/-.

5. Heard Mr.Rakesh Patel, learned counsel appearing the for original claimants and Mr.Sunil Parikh, learned counsel for the respondent – National Insurance Company Limited at length.

6. Mr.Patel, learned counsel appearing for the claimants has submitted the same facts which are narrated in the memo of appeal and has submitted that the Tribunal has committed an error of facts and law in considering 40% negligence on the part of the deceased and not considered the claim with regard to consortium, loss of estate and funeral expenses. He has submitted that the Tribunal has committed an error of facts and law in awarding Rs.18,87,192/- towards the compensation. He has submitted that the deceased was serving in the Sub Divisional Office Telecom, E.S.C. and earning Rs.27,579/- per month at the time of death. He has submitted that the claimants have produced the relevant documentary evidence before the Tribunal and examined the witness namely Nilesh Virabhai Shah at Exhibit 48 and salary slip at Exhibit 49. He has submitted that the quantum of compensation as awarded by the Tribunal is on lower side and against the well settled principles of law and, therefore, the same may be enhanced with interest from the date of filing of claim petition till the deposit of the aforesaid amount. He has submitted that the Tribunal has failed to award the amount of consortium and future loss of income in its true and prospective spirit. He has submitted that the Tribunal has not properly appreciated the income of the deceased while awarding the amount of compensation and the Tribunal has not awarded just compensation as per the decision of the Hon’ble Supreme Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 and completely ignored the said decision. He has submitted that so far as the funeral expenses is concerned, the Tribunal has awarded only Rs.15,000/-. He has submitted that the FIR and the charge-sheet came to be filed against the driver-cum-owner of the offending vehicle. He has submitted that the eye witness i.e. P.W.2 has clearly stated that he was standing near the bike and, therefore, the Tribunal has considered 40% contributory negligence without there being any cogent and material evidence and there was no any material which shows that the deceased