Contributory negligence cannot be determined solely based on a site plan without proper evidence, and there must be cogent evidence to prove income assessment and contributory negligence.

JUDGMENT :

Rajnish Kumar, J.

1. Heard, Sri Vishal Tahlani, learned counsel for the appellants and Sri Waquar Hashim, learned counsel for respondent no.2/The National Insurance Company Ltd. None appeared for the other respondents.

2. This appeal has been filed for enhancement of the compensation awarded by the judgment and award dated 26.02.2010 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Lucknow in Claim Petition No.59 of 2001(Smt. Asha Jaiswal and others versus Param Jeet Singh and another).

3. The facts, in brief, for adjudication of the present appeal are that on 18.05.2000 at about 8:00 a.m. the claimants/appellants were going alongwith the deceased Lakshmi Prakash Jaiswal from Lucknow towards Kanpur on Lucknow-Kanpur road. The deceased was driving the Maruti Car No.U.P.32 C-9850. When the car reached near Village-Barua, Police Station-Azgain, a truck No.U.P.78 T/1887, which was coming from the side of Kanpur and was being driven rashly and negligently by its driver came on the right side and hit the Maruti Car with force. Smt. Asha Jaiswal, Nishit Jaiswal and the deceased Lakshmi Prakash Jaiswal got serious injuries on account of accident. The deceased died after treatment of about 20 hours in K.G.M.C Lucknow. The deceased was aged about 40 years and was working in Jaiswal Frozen Food Carrier, Galla Mandi-Sandila, District Hardoi and earning Rs.5000/-per month. With the aforesaid allegations, the claim petition was filed claiming compensation of Rs.15,00,000/-.

4. The claim petition was contested by the respondent no.1 who is registered owner of the Truck No.U.P.78T-1887 stating that Narendra Kumar, driver of the truck, was having a valid driving license which was valid upto 2001 and the vehicle was having valid registration, permit and license. His further submission was that on 18.05.2001, the vehicle was being driven carefully by its driver and on account of the rash and negligent driving of the driver of the Maruti Car, the accident had occurred. The respondent no.2-National Insurance Company had also contested the case and filed written statement denying most of the averments for want of information and stated that the claimants/appellants would have to prove the allegations with cogent evidence.

5. On the basis of pleadings of the parties, 5 issues were framed. P.W.1-Darvesh Jaiswal, P.W.2-Asha Jaiswal and P.W.3-Nishant Jaiswal were got examined on behalf of the claimants/appellants while on behalf of the respondents no oral evidence was adduced. The claimants/appellants had filed copy of the First Information Report, Post Mortem Report, Chargesheet, Pay certificate, Insurance certificate and copy of the Driving license. On behalf of the Insurance Company verification report of the Driving license of the driver Narendra Kumar on Form 54, copy of the report of Investigator and site plan were filed.

6. After considering the pleadings and evidence, the issue nos. 1 and 4 regarding accident and contributory negligence of the driver have been decided together holding that the driver of the Truck No.U.P.78 T-1887 had hit the Maruti car on 18.05.2000 at about 8:00 a.m. in the morning at the place in question, which was coming from the side of Kanpur in which the claimants/appellants and the deceased Lakshmi Prakash Jaiswal suffered serious injuries and he died. The contributory negligence of the deceased has been determined to the extent of 20% and that of the truck driver to the extent of 80% on the ground that truck driver was not got examined and as per the site plan both the vehicles have came to their right side and hit the other vehicle. Thereafter considering the age and income of the deceased an amount of Rs. 2,96,100/-has been awarded as compensation. Hence the present appeal has been filed for enhancement.

7. Submission of learned counsel for the appellants was that the deducti