Point of Law: It is settled law that at intersection where two roads cross each other, it is duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.

JUDGMENT :

Ajai Tyagi, J.

1. This appeal has been preferred against the judgment and award dated 26.05.2012 passed by Motor Accident Claims Tribunal, Court No.9, Saharanpur (hereinafter referred to as ‘Tribunal’) in M.A.C.P. No. 210 of 2010 (Smt. Sunita Khera and Others Vs. Jabbar and another), by which the learned Tribunal has awarded a sum of Rs.12,01,985/-with 6% per annum simple rate of interest. Learned Tribunal also held contributory negligence to the tune of 50% of each of the drivers, involved in the accident.

2. Brief facts as culled out from the record are that a claim petition was filed by appellants-claimants on account of death of Ram Kumar Khera with the averments that on 10.05.2010, the deceased was going on motorcycle No. UP 11B 9754, driving himself, at a moderate speed from Saharanpur to his house Yamunanagar. At about 7:00 pm when he reached near Bajaj Agency from Sarsawa, a truck Tata 407 bearing No.11 T 1174 came from opposite direction. This truck was being driven rashly and negligently and at a high speed by its driver. The truck driver hit the motorcycle of the deceased after coming from the wrong side in order to overtake a three wheeler. In this accident, Ram Kumar Khera sustained serious injuries. He was admitted to District Hospital, Saharanpur, where he was declared dead by the doctor. The age of the deceased was 39-40 years and he was working in Punjab National Bank as Head Cashier.

3. Heard Shri Avinash Pandey, learned counsel for the appellants-claimants and Shri Aditya Singh Parihar, learned counsel for the Insurance Company-respondent. Perused the record.

4. Learned counsel for the appellants-claimants has submitted that learned Tribunal has held that drivers of truck and motorcycle were guilty of 50% contributory negligence. Learned counsel submitted that this finding of learned Tribunal cannot be sustained because there is no evidence on record with regard to the fact that the deceased was also co-author of the accident. Plea of the contributory negligence, taken by the insurance company, is not proved. It is further submitted that at the time of accident, the truck driver was driving at a high speed and in order to overtake a three wheeler, the truck came from wrong side and hit the motorcycle of the deceased. In this way, the truck driver was solely negligent but learned Tribunal erroneously held the deceased also negligent to the tune of 50% while there is no basis on which the learned Tribunal has fixed the percentage of the negligence.

5. Learned counsel for the appellants-claimants next submitted that learned Tribunal has not calculated the amount of compensation in a right way because the deceased was serving in Punjab National Bank as a Head Cashier and at the time of his death in an accident his income was nearly Rs.35,000/-per annum but learned Tribunal has assessed the income on lower side. Learned counsel for the appellants also submitted that the income of the deceased is proved by witness PW6 but his testimony was wrongly disbelieved by the Tribunal. It is also submitted that learned Tribunal has not awarded any sum towards future loss of income and no reason for it is assigned in the impugned judgment. It is next submitted that non-pecuniary damages, awarded by the Tribunal, are on lower side and not in consonance with the settled law.

6. Per contra, learned counsel for the insurance company submitted that learned Tribunal has rightly held the deceased guilty of contributory negligence to the tune of 50% because it is proved on record that both the vehicles i.e. truck and motorcycle met with accident in the middle of road from opposite direction. In fact, it was head-on collision. Learned counsel vehemently argued that the truck driver is examined by insurance company as DW1 and the driver has deposed that at the time of accident, the deceased was coming from opposite direction and there were other bikers riding other bikes with him and all of them were involved in racing and the dec