The court established that the absence of evidence for contributory negligence justified the Tribunal's compensation award.

ORDER

1. The present appeal has been preferred by the appellant-Insurance Company against the judgment & award dated 22.12.2014 passed by the Judge, Motor Accident Claims Tribunal, Balotra in M.A.C. Case No. 78/2012 whereby, the learned Judge, MACT Cases has awarded compensation in the sum of Rs. 16,53,800/- to the claimant respondents.

2. Briefly stated, the facts of the case are that a claim petition was filed by the respondents before the Motor Accident Claims Tribunal, Balotra, stating therein that on 09.05.2012, when the deceased Jagdish Singh was going on his Martui Omni Van No. GJ-15-AD-2722 from Balotra towards Sindhri, at that time one Turbo Truck bearing Registration No. HR-61-A-9907 being driven rash and negligently by the driver hit the vehicle of deceased and consequently due to grievous injuries, he died.

3. The Tribunal after framing the issues, evaluating the evidence on record and after hearing the learned counsel for the parties, passed a judgment and award partly allowing claim petition awarded compensation in the sum of Rs.16,53,800/-alongwith interest @ 9% per annum from the date of application till date of realization.

4. Learned counsel for the appellant-Insurance Company while challenging the findings of the Tribunal recorded on Issue No. 1 has vehemently submitted that the accident had taken place due to rash and negligent driving of driver of offending vehicle as the Maruti Van was going on the wrong side or at the most it was a case of contributory negligence and liability of compensation should have been fastened on the Insurance company as well as deceased. It is further argued that the learned Tribunal has also committed error in assessing the income of deceased to be Rs.6,000/- per month despite the fact that there was no evidence on record on the basis of which the income of the deceased could be taken to be Rs.6,000/- per month. It is further argued that learned Tribunal has committed grave error in awarding 50% of income by way of future prospects as the deceased was stated to be a self employed person and he could not have any permanent income to be awarded any compensation towards future prospects. Thus, the tribunal has awarded excessive compensation in an unreasonable manner. Further the rate of interest needs to be fixed in consonance with the prevailing rate of Reserve Bank of India and therefore, awarding interest at the rate of 9% per annum is also excessive. Therefore, the appeal of the appellant-Insurance Company may be allowed and the judgment and award impugned qua them may be quashed and set aside.

5. Per contra, learned counsel for the claimants-respondents/cross-objector opposed the submissions made by the learned counsel for the appellant-Insurance Company and submitted that the Tribunal rightly recorded the findings on all the issues and fastened the liability of paying compensation on the insurance company. It is argued that the appellant insurance company in order to escape from the liability of payment of compensation has created a false story of negligence on the part of the deceased in driving the vehicle. It is further argued that since there was no fundamental breach of the conditions of the insurance policy, therefore, the insurance company is liable to pay amount of compensation to the claimants in the present case. In fact, the learned Tribunal has awarded compensation on the lower side while taking the income of deceased to be Rs.6,000/- per month whereas the deceased was 30 years old and was earning a sum of Rs. 1,50,000/- per annum and therefore, amount of compensation deserves to be enhanced by assessing the income of deceased to be Rs. 1,50,000/- per annum. It is further argued that learned Tribunal has also erred in not awarding suitable compensation for future prospects of the deceased also.

6. I have considered the submissions on behalf of the counsel for the appellant and perused the impugned judgment/award dated 22.12.2014 as also the material available on record