Negligent driving leading to fatal accident; admissibility of affidavits as evidence upheld, and appropriate multipliers for compensation confirmed.

1. Heard Mr. U.P.S. Kushwaha and Mr. V. P. Singh, learned counsel appearing on behalf of the appellants and Mr. Vijai Pratap Singh and Mr. S.C. Verma, Mr. V.K. Yadav and Mr. Brijesh Kumar Shukla, appearing for the respondents.

2. Delay in filing the appeal is condoned.

3. Present appeals have been filed challenging the award dated 15.7.2008, passed in Claim Petition No.77 of 2004 by Additional District Judge / Motor Accidents Claims Tribunal / Court No.1 - Lucknow. The New India Assurance Co. Limited has filed the appeal challenging the award whereas the claimant respondents have filed the appeal for enhancement of the compensation.

4. Facts giving rise to the present controversy relate to an accident occurred on 21.1.2004 at about 11.00a.m. The deceased was travelling in car Maruti Zen No.LX No.U.P. - 32 - Ad / 7682 from district Lakhimpur. While they were turning from Lakhimpur towards Sitapur, a Bulero Jeep No.UP - 31 - F - 8300 coming from Lakhimpur at a high speed of about 80km per hour collided with Maruti Zen resulting in the accident in which Smt. Pankaj aged about 47 years and Dr. Laxman Lal aged about 50 years succumbed to the injuries. Two other persons who were in the Maruti Zen suffered injuries but their case is not before this Court.

5. The tribunal recorded a finding that because of rash and negligent driving of the Bulero Jeep, the accident occurred resulting in the death of the deceased. The tribunal has applied the multiplier of 13 with regard to Smt. Pankaj whereas with regard to Dr. Laxman Lal, multiplier of 10 has been used in terms of Schedule - II of the Motor Vehicles Act and awarded compensation accordingly.

6. Learned counsel for the appellant has challenged the award, mainly on three grounds, which are as under :
1. The evidence led by the claimants is not admissible.
2. It is a case of contributory negligence.
3. Multiplier applied by the tribunal is not correct.

7. Before the tribunal, an eye - witness namely P.W.2 Krishna Gangwar who was travelling in the same car supported the case of the claimant respondents. The witness stated that the said Jeep was coming with high speed of 80 or more kilometre per hour when it dashed with Maruti Zen, the latter was moving at a speed of 30-35km per hour. He further stated that he is a junior scientist and was travelling in the Maruti Zen at the time of accident. After perusal of the site plan, the tribunal recorded a finding that direction of both the vehicles at the spot was towards Sitapur and the Bolero Jeep dashed with the car from the wrong side. On the basis of the technical report of the Maruti Zen, a finding has been recorded that the front portion was damaged whereas the technical report of bolero Car shows that its right front tyre was damaged along with main head screen. Keeping in view the damage caused to both the vehicles, the tribunal on the basis of the technical report and evidence led by the parties, recorded a finding that it was the fault of the Bolero Jeep which tried to overtake the Maruti Zen resulting in the accident in question.

8. Now, coming to the first contention with regard to admissibility of evidence. While assailing the award in question, it is submitted by the appellants' counsel that before the tribunal, the witnesses had filed their affidavit and thereafter the appellant's counsel was permitted to cross - examine them. Submission of the appellant's counsel is that since no examination - in - Chief was recorded by the tribunal, the evidence led by the claimants is not admissible.

9. On the other hand, learned counsel appearing for the respondents submitted that from the appellants' side also, an affidavit was filed which was t