Contributory negligence cannot be presumed from a head-on collision without supporting evidence; liability was assigned solely to the truck's insurer.

JUDGMENT :

BUDI HABUNG, J.

Heard Ms. P. Baruah in MAC Appl. No. 109/2011 for the appellant; Mr. R. Goswami in MAC Appl. No. 107/2011 for the appellants. Also heard Mr. R. C. Paul, learned counsel for respondent No. 3, and Ms. R. D. Mozumdar for respondent No. 4 in MAC Appl. No. 109/2011; Ms. P. Baruah for respondent No. 1, and Mr. R. C. Paul for respondent No. 4 in MAC Appl. No. 107/2011.

2. Since both the appeals arise out of the common judgment and award dated 17.02.2011 passed by the learned Member, Motor Accident Claims Tribunal, Golaghat in MAC Case No.165/2005, they are taken up together for disposal.

3. On 16.02.2005, the deceased Pawan Kumar Jalan was driving 407 Van No. AS-03-A-4577 carrying biscuits from Numaligarh to Bokakhat. When the vehicle reached near Rajabari on National Highway 37, a truck bearing No. AS-25-B-2538 coming from the opposite direction in high speed and in a rash and negligent manner dashed the 407 Van, resulting in death of the driver on the spot, caused injuries to the handyman and also damage to both vehicles.

4. The claimants being legal heir filed petition under Section 166 of the Motor Vehicle Act, 1988 (in short ‘M.V. Act’) claiming Rs. 16,14,000/- as compensation on account of death of the deceased. The owner, driver and insurer of the truck, and the owner and insurer of the van were impleaded as respondents.

5. The respondents contested the case by filing written statements. However, the respondents did not dispute the accident, death of the deceased or existence of valid insurance coverage of the vehicle.

6. During trial, the claimant examined two witnesses. PW-1, the wife of the deceased, deposed regarding the age of the deceased and proved that the deceased was aged about 42 years at the time of his death. She further deposed that the deceased was a businessman and his income was Rs.10,000/- per month. However, as she was not an eye-witness, her evidence regarding the manner of accident was not relied upon.

7. PW-2, handyman of the Van is the eye witness to the incident. He was travelling in the 407 and testified that the offending truck was coming from the opposite side in excessive speed and driven in rash and negligent manner, caused head-on collision with the Van resulting the death of the deceased on the spot. Nothing material was elicited in cross-examination to discredit the evidence of PW-2.

8. It is seen though the FIR initially mentioned negligence on both sides as there was an allegation of head on collision, the charge-sheet was filed only against the driver of the truck.

9. Upon conclusion of the trial, the learned Tribunal held that both drivers of the vehicles were equally negligent and accordingly applied 50% contributory negligence.

10. On consideration, the monthly income of the deceased was taken on notional and assessed at Rs.7,000/-, the age of the deceased was taken between 38-42 years old, hence, multiplier by 15, deduction 1/3rd, thus resulting in Rs. 8,40,000/-, plus conventional heads totaling Rs. 8,57,500/-. Accordingly, both the insurers Insurance Companies have been directed to pay 50% each.

GROUNDS IN APPEAL

11. Being aggrieved, the appellant/claimants filed MAC Appeal No.109/2011 on the following grounds:

(i) That there is no any evidence of contributory negligence on the part of the deceased who was driving the vehicle 407/Van.

(ii) That after thorough investigation, the charge-sheet has been filed only against the truck driver and not against the ill-fated vehicle 407/Van.

(iii) That the evidence of PW-2 who is an eye witness to the incident establishes sole negligence of truck driver and his evidenc