The court ruled that contributory negligence cannot be inferred solely from a site plan when eyewitness testimony indicates no fault, and clarified compensation calculations regarding deductions and future prospects.

JUDGMENT

Manjive Shukla, J.

Since the order and award dated 11.11.2011 passed by the learned Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Lucknow in M.A.C.P. No.190 of 2009 (Smt. Meena and others v. Anil Kumar and others) is under challenge in both the aforesaid appeals therefore, they are being decided by the common judgment.

2. Heard Sri. Balendu Shekhar, learned counsel appearing for the appellants/claimants and Ms. Pooja Arora, Advocate holding brief of Sri. S.C. Gulati, learned counsel appearing for Opposite Party No.2 in F.A.F.O. No. 123 of 2012. Ms. Pooja Arora, Advocate holding brief of Sri. S.C. Gulati, learned counsel has appeared for the appellant and Sri. Balendu Shekhar, learned counsel has appeared for Opposite Parties No. 1 to 4 in F.A.F.O. No. 148 of 2012.

3. Facts of the case, in brief, are that on 12.5.2006 at about 7.00 A.M. while Mr. Sunder Lal was moving on his moped bearing Registration No. UP-32-AB/8094, one Tanker bearing Registration No. UP32-T/6251 which was being driven negligently by the driver, collided with the moped near Neelam Traders, Devpur Tara, Police Station Talkatora, District Lucknow and as a result of the said accident, Mr. Sundar Lal suffered serious injuries and he remained admitted in the hospital since 12.5.2006 till 15.5.2006 and ultimately succumbed to injuries and died on 15.5.2006. The deceased Sundar Lal at the time of accident was wearing helmet and the accident in question was seen by many persons including Mr. Ram Gopal who was also on moped at the time of the accident.

4. The claimants filed Claim Petition No. 190 of 2009 and they claimed Rs. 30,00,000/- as compensation from the opposite parties. The claimants led evidence by producing eye witnesses who categorically deposed before the learned Tribunal that deceased Sundar Lal was moving on his moped on the left side of the road and due to negligence on the part of the driver of the Tanker, the accident took place. At the time of the accident one Mr. Ram Gopal was also on the moped who also suffered injuries and his testimony was recorded in which he categorically stated before the learned Tribunal that there was no negligence on the part of the deceased Sundar Lal and the accident took place only because of the negligence on the part of the driver of the Tanker.

5. Learned Tribunal though did not record any infirmity in the testimony of the eye witnesses produced by the claimants but only relied on the site plan prepared by the police during the investigation of the accident in question and concluded that since as per the site plan it is a head-on collision, there is only 50% negligence on the part of the driver of the Tanker and remaining 50% negligence is of deceased Sundar Lal and thereby on the basis of contributory negligence, has held that only 50% of the total compensation admissible to the claimants is liable to be paid by the owner of the Tanker. Learned Tribunal has also concluded that since the Tanker was insured with the National Insurance Company Limited on the date of accident therefore, compensation has to be paid by the Insurance Company. Learned Tribunal while deciding the claim petition has held that since the valid driving licence of the driver of the Tanker has not been produced, the Insurance Company shall pay the compensation to the claimants and thereafter will have a right to recover it from the owner of the Tanker.

6. Learned Tribunal while calculating the income of the deceased available for the dependent family members took his total monthly income as Rs. 8841/- but from that income Rs. 650/- was deducted towards V.P.F. and festival advance. Learned Tribunal while calculating the income of the deceased available for the dependent family members has not included any amount towards future prospects.

7. Learned Tribunal vide order and award dated 11.11.2011 has directed the Insurance Company to pay compensation amounting Rs. 4,26,880/- to the claimants along with simple interes