Contributory negligence must be alleged and proved, and the calculation of just and fair compensation should consider various specific heads as outlined in relevant legal judgments.

JUDGMENT :

1. Heard Mr. N. Deka, learned counsel appearing on behalf of the appellant and Mr. R. Goswami, learned counsel appearing on behalf of the respondent no.1. None appears on behalf of the respondent nos.2 and 3.

2. This is an appeal arising out of Award dtd. 19/6/2012 passed by the Additional District & Sessions Judge (FTC) No.2, Member of M.A.C.T., Kamrup at Guwahati in M.A.C. Case No.2135/2018, whereby a sum of Rs.12,92,676.00 was adjudged as just and fair compensation to the claimants.

3. The instant appeal has been filed challenging the quantum of compensation by the claimants on the ground that the Tribunal below had erroneously deducted 50% of the awarded compensation on the ground of contributory negligence and further that the Tribunal did not take into consideration the other benefits such as loss of Estate, loss of Consortium and Funeral Expenses in contrary to the judgment of the Constitution Bench of the Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others, reported in (2017) 16 SCC 680.

4. The brief facts of the instant case is that on 13/4/2008 Douglas Arthur Phookan (since deceased) on way back to his home from Jorhat to Guwahati met with an accident with a truck bearing registration no. WB 73-B-0696 and was killed on the spot. Pursuant thereto, a Raha Police Station Case Number was registered in P.S. Case No.27/2008 under Sec. 279/338/304A/427 IPC. Pursuant to the said death of the deceased the claimants who are the legal representatives of the deceased filed an application under Sec. 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal, Kamrup at Guwahati, which was registered and numbered as MAC Case No.2135/2008. In the said claim petition, the age of the deceased was mentioned as 57 years; the salary of the deceased for the month of March, 2008 was mentioned at Rs.35,741.43 (Rupees thirty five thousand seven hundred forty one and forty three paisa) and an amount of Rs.39,81,000.00 was claimed as just and fair compensation.

5. The respondent no.1 filed their written statement denying their liability to make payment of compensation. It may however relevant to mention that the perusal of the said written statement do not in any manner show or suggests that the plea of contributory negligence was taken by the respondent no.1. The driver of the vehicle who is the respondent no.3 herein had also filed his written statement, wherein it was alleged that the accident took place on the ground that the deceased was driving his vehicle in a rash and negligent manner and there was no fault on the part of the said driver of the offending vehicle which resulted in the accident.

6. On the basis of the said pleadings by the parties, two Issues were framed which were -

(1) Whether there was a vehicular accident on 13/4/2008 at about 12:30 a.m. at Phulaguri Pub Salmara on the NH-37 in between the two vehicles bearing Registration No. WB 73-B-0696 (Truck) and No. ML-05-A-4329 (Maruti Car) and the deceased Douglas Arthur Phookan died due to the injuries sustained in the said accident?

(2) Whether the claimant is entitled to get any compensation, if yes, to what extent and from whom?

7. Pursuant to the said Issues being framed, the claimants' side adduced the evidence of two witnesses; one was the claimant no.1 i.e. the appellant no.1 herein and the other is one Shri Hemanta Boro, the Officer, Personnel & Administration Department, UCO Bank, Zonal Office, Jorhat. The claimants had also adduced as many as 10 (ten) documents as Exhibits. From the evidence of the claimants it reveals that the offending truck bearing registration no. WB 73-B-0696 was being driven in a rash and negligent manner coming from the opposite direction and hit the vehicle of the deceased on the front door of the right side i.e. the driver's side. Evidence was also adduced that the offending truck which was driven very negligently hit the Maruti car of the deceased by crossing over his side and