IMPORTANT POINT
Contributory negligence must be proven by the party alleging it, and findings cannot rely solely on site plans without corroborative evidence.

JUDGMENT :

1. The instant misc. appeal, seeking enhancement and setting aside the finding with respect to contributory negligence, has been preferred by the appellants/claimants under Section 173 of the Motor Vehicles Act, 1988(hereinafter as ‘the Act’) against the judgment and award dated 05.12.2016 passed by MACT, Rajsamand in MACT Case no. 65/2016.

2. Briefly stated, facts of the case are that on 19.10.2015 Mr. Jabbar Singh(hereinafter as ‘the deceased’), was going from Gomti to Kelwa(i.e., N.H.-8, which is a four lane road) on the motorcycle bearing registration no. RJ30 SH 9217(hereinafter as)and as he reached(from North to South direction) near Devpura Cut on N.H.-8, one Nawal Singh (hereinafter as ‘Respondent No. 1/rider’), came, on the motorcycle bearing registration no. RJ30 SL 0252(hereinafter as ‘the offending vehicle’), from the direction of intersection (which goes to village Devpura), and while trying to cross the road(From East to West direction) dashed into the deceased’s motorcycle. As a result of the accident the deceased died during the course of treatment. On the written complaint of one Nirbhay Singh(a worker at Chouhan Filling Station, Miyari) the FIR no. 174/2015 was registered at Police Station, Kelwa and after investigation the chargesheet(Ex.-5) was filed against the respondent no. 1/rider. Subsequently, the claim petition no. 65/2016 was filed by the appellants/claimants before MACT, Rajsamand(hereinafter as ‘the tribunal’) claiming compensation from the respondents.

3. The notice of the claim petition were served on both the respondent no. 1/rider and respondent no. 2/owner. However, as they were no present before the learned tribunal even after the service of the notices, ex-parte proceedings were initiated against them.

4. It was alleged by the appellants/claimants before the learned tribunal that the respondent no. 1/rider negligently and without reasonable care suddenly came from the direction of Devpura intersection on N.H.-8 in the middle of the road(Gomati to Kelwa NH-8) without giving any signal or indicator and tried to cross the road which resulted in the accident and ultimate demise of the deceased.

5. It was alleged by the respondent no. 3/insurance company in its reply to the claim petition before the learned tribunal that the deceased was solely negligent for the accident hence, respondent no. 3/insurance company is not liable.

6. On the basis of the pleadings of the parties the learned tribunal framed 5 issues which are as follows:

7. The appellants/claimants examined Kailash Kunwar(wife of the deceased) as AW-1 and exhibited 10 documentary evidences. And from the side of the respondent no. 3/insurance company no evidence was produced.

8. After hearing both the parties and on the basis of material available on the record the learned tribunal partially decided issue no. 1(i.e., with respect to the negligence of the Respondent no.1/rider) in favour of the appellants/claimants and held the deceased liable for contributory negligence to the extent of 25% in causing the accident. And vide the impugned award ultimately held the respondents jointly and severally liable to pay an amount of Rs. 7,96,253/- (after deducting 25% of the total compensation of 10,61,670/- on account of 25% contributory negligence of the deceased) along with interest @ 9% p.a. from the date of filing of the claim petition till the payment of the cheque to the appellants/ claimants.

9. Aggrieved by the impugned award the appellant/claimants have preferred the instant misc. appeal.

10. It is submitted by the learned counsel appearing on behalf of the Appellants/claimants that the learned tribunal erred in deducting the 25% of the total compensation on the ground of contributory negligence as the deceased was not negligent.

11. It is further submitted by the learned counsel appearing on behalf of the Appellants/claimants that the respondent no. 1/rider suddenly and negligently came in the middle of the road without taking precauti