JUDGMENT

Jaspreet Singh, J.

Heard Sri Sanjay Kumar Srivastava, learned counsel for the appellants and Sri Dinesh Kumar, learned counsel for the respondent no.1.

2. The instant appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988 seeking enhancement of the award dated 31.08.2015 passed by the Motor Accident Claims Tribunal / District Judge, Sultanpur in Claim Petition No.113 of 2012 (Smt. Pushpa Gupta and another v. Ajay Kumar Singh) wherein on account of motor accidental death of Sri Harish Kumar Gupta, a sum of Rs.85,814/- has been awarded along with seven percent interest to the claimants.

3. The submission of learned counsel for the appellants is two fold:-

I) That the tribunal has erred in apportioning 20% of the liability on the deceased, holding him to have contributed to the alleged accident. Whereas, there was clear evidence to the effect that the accident was solely caused on account of rash and negligent driving of the offending truck bearing no. UP 44 T 1148. It is also submitted that the basis of recording a finding against the appellants on account of contributory negligence is the site plan which was furnished along with the charge sheet prepared by the police officers while investigation. It is submitted that mere site plan cannot be made the basis of holding contributory negligence in absence of any other corroborative evidence. In the instant case, it was clearly established by the evidence of two witnesses including the appellant no.1 who was in the car in question at the time when the accident occurred and another eye witness Chandrajeet Yadav that the accident occurred on account of rash and negligent driving of the offending truck. It is thus submitted that the finding of contributory negligence recorded by the tribunal is erroneous and deserves to be set aside.

II) The other submission of the learned counsel for the petitioner is that the tribunal has grossly erred while deducting the amount of pension received by the appellants from the compensation determined and this deduction is not permissible in law and thus there is a clear error committed by the tribunal.

It is also urged that the tribunal has failed to grant any non pecuniary damages on account of loss of estate, funeral expenses and loss of consortium and in the aforesaid circumstances, the award requires to be enhanced apart from the fact that the interest which has been awarded is also on the lower side.

4. Per contra Sri Dinesh Kumar, learned counsel for the respondent no.1 while controverting the aforesaid submissions submits that it was a clear case of contributory negligence and one of the witnesses being interested witness, her testimony could not have been treated to be sacrosanct and the manner in which the accident has occurred, it clearly indicated the negligence of the car driver and for the aforesaid reason 20% has been apportioned on the car driver, which cannot be said to be erroneous. Learned counsel for the insurance company, however, fairly conceded that insofar as the deduction of the pension is concerned, the same is clearly not permissible and is also against the settled principles of law as laid down by the Apex Court and he further submits that the non pecuniary benefits have been crystallized by the Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and Others; (2017) 16 SCC 680, accordingly, in view thereof the Court may redetermine the compensation.

5. Having heard learned counsel for the parties and from perusa