The court ruled that the burden of proving negligence lies with the party alleging it, and all components of income, including incentives, should be considered in compensation assessments.

Oral Judgment :

1. This appeal is preferred by the appellant-Insurance Company against the judgment and order dated 11th November 2011 passed by the Motor Accident Claims Tribunal, Pune (for short “the Tribunal) in MACP No.1130 of 2005. The claimants have filed cross-objection for enhancement of compensation. As the appeal and cross-objection are against the same judgment and order, I am deciding it by this common judgment.

2. It is contention of learned counsel for the appellant – Insurance Company that the Tribunal has passed the impugned order on the basis of assumptions, presumptions and surmises. Learned counsel further submitted that the accident occurred due to sole negligence of the bus driver who gave dash to the car, in which, the deceased was travelling and the truck which was ahead of the car, after giving dash by the bus, the car dashed on the truck but the Tribunal has not considered this fact and has fixed sole liability on the driver of the offending truck, which is erroneous. Learned counsel further submitted that the Tribunal has considered income of the deceased on higher side without any evidence on record. Hence, requested to allow the appeal.

Learned counsel for the appellant relied on following judgments:

1. Rajwati @ Rajjo and ors. Versus United India Insurance Company Ltd. And Ors. 2022 SCC Online SC 1699.

2. National Insurance Co. Ltd. Vs. K. Yadamma and ors 2007 ACJ 1343.

3. New India Assurance Company Ltd. Versus Ashalata Suryakant Patil and ors. In First Appeal No.2829 of 2015 dated 4th October 2018.

4. Smt. S. Narayanamma and ors. Versus The Secretary to Govt. of India and ors. 2002 (1) A.P.L.J.473 (HC).

3. It is contention of learned counsel for respondent No.9- Insurance Company that the offending truck gave dash to the bus and to the car from backside, in which, the deceased was travelling, the offending truck was in high and excessive speed. Learned counsel further submitted that an offence was registered against the driver of the offending truck. To prove the negligence of the bus driver, the driver of the offending truck did not step into the witness box. The Tribunal has considered all the aspects while passing the judgment and order, no interference is required in it.

4. It is contention of learned counsel for respondent Nos.1 to 3/ claimants that the deceased was working as manager and he was getting gross salary of Rs.59,231/- per month but the Tribunal has considered his monthly income at Rs.46,116/-, which is on lower side. Learned counsel further submitted that the salary certificate of the deceased is produced on record, the witness has been examined to prove the income of the deceased but this fact is not considered by the Tribunal. Learned counsel further submitted that the Tribunal has awarded consortium amount on lower side, it be awarded. Learned counsel further submitted that the Tribunal has awarded 6% interest on compensation amount, it should be 9%. Hence, requested to allow the cross-objection and dismiss the appeal.

5. I have heard all learned counsel, perused the judgment and order passed by the Tribunal.

6. It is claimants’ case that on 31st March 2005, the deceased along with other employees of Thermax Ltd., Chinchwad, Pune, were proceeding towards Mumbai in Indica car. When the car reached near Dheku village on Pune-Mumbai Express Highway, a truck bearing registration No.MH-16-Q-5208 came in high and excessive speed in rash and negligent manner. That truck gave a strong dash to a Volvo bus bearing registration No. MH-22-N-4444 from behind. The said truck also gave dash to the Indica Car of the deceased. The said truck dragged the Indica Car for some distance and sandwiched it by pressing against the truck No.MH-06-K-904.The luxury bus then gave dash to another truck bearing registration No.MH-06/K-904. In the said accident, the deceased and other occupants of the car died on the spot. The offence was registered against the driver of the offending truck

6.1. To prove the negligence