Point of Law: Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.

JUDGMENT :

Ajai Tyagi, J.

1. These two appeals have been preferred against the same judgment and award dated 07.03.2015 passed by Motor Accident Claims Tribunal/Special Judge (E.C.), Act, Ghaziabad (hereinafter referred to as ‘Tribunal’) in M.A.C.P. No. 264 of 2012 (Smt. Sarita Sharma and another Vs. Mohammad Usman and others), whereby the claim petition of the claimants was allowed and awarded a sum of Rs.34,50,000/-as compensation to the claimants with interest at the rate of 6% per annum. Learned Tribunal also held contributory negligence to the tune of 50% each of the drivers, involved in the accident.

2. The claimants have preferred an appeal bearing no. F.A.F.O. No. 1164 of 2015 for enhancement of compensation and setting aside the part of contributory negligence on the part of the deceased/driver of the car, whereas, the Insurance Company of the truck preferred an appeal bearing no. F.A.F.O. No.1053 of 2015, mainly on the ground that the truck in question was not involved in accident and if not so, the deceased was the major contributor to the accident.

3. Heard Mr. Vivek Saran, learned counsel for the appellants-claimants and Mr. Nishant Mehrotra, learned counsel for the Insurance Company-respondents. Perused the record.

4. Brief facts of the case are that claim petition was filed by claimants on account of death of Mr. Vimal Kaushik (husband of appellant-claimant no.1), who died in road accident no 10.04.2011. It is averred in claim petition that on 10.04.2011 at about 2:30 AM (night), deceased Vimal Kaushik was coming from Merrut to Ghaziabad in his car bearing no. U.P. 14 BH 1232. Leaving the Merrut road, when he turned to Hapur road and crossed the flyover a truck bearing no. H.R 38 G 1780, which was being driven very rashly and negligently by its driver, came from opposite direction and hit the car of the deceased. In this accident, husband of claimant no.1 was badly injured and died on the way to the District Hospital Ghaziabad. Accident was reported in police station Kavinagar, District Ghaziabad on the same day by brother of the deceased.

5. Learned counsel for the appellants-claimants has submitted that learned Tribunal has held deceased’s guilty of 50% contributory negligence in the accident but the plea of contributory negligence was neither pleaded nor proved. Plea of contributory negligence was not proved by any of the parties to the claim petition. Apart from it, there is no evidence on record, to show or prove that deceased was contributor to the accident. It is further submitted that deceased was on correct side of the road while the truck was on the wrong side. At the site of the accident, there is divider on the road. The driver of the truck came on the same road on which deceased was coming which was left side of the road of the car. In fact, the truck should have gone across the divider but to make short-cut, the truck came on the wrong side of the divider and hit the car of the deceased.

6. In this way, the truck driver was solely negligent but learned Tribunal erroneously held the deceased’s guilty also to the tune of 50% for contributory negligence. Site plan, prepared by Investigating Officer also shows that the truck was being driven on the wrong side of the divider of the road.

7. Learned counsel for the claimants has also submitted that learned Tribunal has given finding that there was night at the time of accident and head light of the truck must have been visible to the deceased from a certain distance, hence, he had an opportunity to avoid the accident but due to high speed he could not avoid the accident. This finding is perverse and based on surmises and conjectures only.

8. Learned counsel for the claimants contended that there is no evidence on record that deceased was driving the car in rash and negligent manner and there is no evidence at all that he was driving at a high speed yet the le