The main legal point established in the judgment is the application of the principles laid down by the Apex Court for the enhancement of compensation under various conventional heads in cases of accidents resulting in death or injury.

Avneesh Jhingan, J.

CM-22328-CII of 2010 in

FAO-5192 of 2010

1. This is an application filed under Section 5 of Limitation Act for condonation of delay of 26 days in filing the appeal.

2. For the reasons mentioned in the application, which is duly supported by an affidavit, the delay is condoned and the application stands disposed of accordingly.

3. The present two appeals i.e. FAO No.5192 of 2010 and FAO No. 5193 of 2010 arise out of the same award dated 25.03.2010 passed by Motor Accidents Claims Tribunal, Gurgaon (hereinafter referred to as the 'Tribunal').

4. On 18.02.2006, there was an accident involving Alto Car bearing registration No.DL-3C-AD-5643, a Gypsy bearing registration No.DL-3CA/3005 and a bus bearing registration No.HR-55-B-7644. In the said accident, Bhudev lost his life and Braham Parkash suffered injuries.

5. The Insurance Company has filed FAO No.5192 of 2010 against the claimant Bhudev. The claim petition number was MACT Petition No.84 of 2008. FAO No.5193 of 2010 has been filed against Braham Parkash. The claim petition number was MACT Petition No.306 of 2008.

6. Legal heirs of Bhudev have also filed cross-objections for enhancement of compensation. The Tribunal after considering the witnesses and evidence, awarded a sum of Rs. 18,90,200/- along with interest of 6% per annum to the claimants of Bhudev. The amount of Rs. 30,000/- along with interest of 6% per annum was awarded to Braham Parkash.

7. Since all three cases arise out of the same award and same are being disposed of by a common order.

8. The Insurance Company has filed the present appeal challenging that there was no negligence on the part of the driver of the bus whereby challenging the finding of the Tribunal recorded on issue No.1. Before proceeding further, since the issue raised by the Insurance Company is common in both the appeals. This issue is decided first.

9. Learned counsel contended that the Alto car was coming from Gurgaon to Dharuhera side. On the said car a Gypsy fell which was coming from the opposite side and behind that Gypsy was bus which was insured with the appellant/Insurance Company. Learned counsel for the appellant further argued that the Tribunal framed six issues, the relevant issue is as under:-

“Whether the accident in question took place due to rash and negligent driving of vehicle No. HR- 55-B-7644 (Mini Bus by its driver respondent No.1 resulting in death of Bhudev injuries to Vijay Kumar, Braham Parkash and damaged to Gypsy/Jeep No.DL-3CA-3005 belonging to claimant Rajneesh? OPP”

10. It is pleaded that eye witness Vijay Kumar appeared as PW5 and tendered his affidavit Ex.PW5/A. Vijay Kumar in his statement has stated that accident occurred due to contributory negligence of the driver of the Gypsy and bus. It is further contended that in cross-examination Vijay Kumar admitted that accident was result of rash and negligent driving of the Gypsy. Learned counsel argued that this is case of contributory negligence and the appellant has wrongly been held liable to pay the whole compensation.

11. I have heard learned counsel for the parties and perused the paper book with their able assistance.

12. There is no dispute with regard to the fact that Alto car was going from Gurgaon to Dharuhera in which deceased Bhudev and Vijay Kumar were travelling. There is no dispute that rash and negligent driving can not be attributed to the driver of the Alto car. On the other hand, it is also not disputed that both the Gypsy and the bus were coming on the opposite side of the road from Dharuhera to Gurgaon.

13. Before the Tribunal, the driver of the Gypsy Rajnish deposed that the bus came from the back side and hit the Gypsy and as a result of which the Gypsy was thrown away towards the right side of the divider and Gypsy fell over the Alto car.

14. Apart from the driver of the Gypsy there was an other eye witness, Ashok Kumar, who