JUDGMENT

ANISH DAYAL, J.

1. This petition has been filed assailing the impugned award dated 7th August, 2015 in MACT 366/2013 tilted as Smt. Poonam Rana & Ors. v. Dilip Mahato & Ors., passed by the Ld. Presiding Officer, Motor Accident Claims Tribunal, Rohini Courts, Delhi. As per the impugned award, the appellant was directed to pay an amount of Rs.44,21,835/- along with interest at the rate of 9% per annum from the date of the institution of the petition i.e. 5th February, 2013 till the date of realization as compensation to the respondents.

2. The appellant is an insurance company. Respondent nos. 1 to 4 filed claim petitions under sections 140 and 166 of the Motor Vehicles Act, 1988 (MV Act) seeking compensation from respondent nos. 5 and 6 and the appellant herein owing to the accident which occurred on 24th November, 2012, wherein deceased Deepak Rana (husband of respondent no.1) suffered grievous injuries and later passed away.

3. The accident occurred at about 11:45 AM at Pooth Khurd, Firki Road Crossing near Rajeev Vatika, Balraj Farm House, Delhi. FIR No.390/2012 under sections 279/304A of Indian Penal Code, 1860 (IPC) was registered at PS Bawana against respondent nos. 5 and 6, respectively driver and the owner of the offending vehicle (Truck bearing No. DL 1CB 7115). As per the claimants, the deceased was proceeding towards Pooth Khurd Village, when at about 11:45 a.m the offending vehicle, driven rashly and negligently by its driver, came from the front side and hit the deceased. The deceased fell on the road sustaining grievous injuries, was moved to MV Hospital, but could not survive and succumbed to the injuries.

4. Respondent nos. 5 and 6 herein, opted not to defend the claim petition, and their defence was struck off vide order dated 29th July, 2013. The appellant herein contested the case. Issues were framed and evidence was led of the widow of the deceased (PW-1) and the eyewitness Ct. Shashi (PW-2), while no witnesses from the defendant side were examined.

5. Mr. A K Soni, learned counsel for the appellant assailed the award on three principal grounds: firstly, there was contributory negligence by respondent no.1 driver which should be taken into account; secondly, the claimants were held to be entitled to reimbursement of tuition fees at Rs.1,250/- per child per month till the child attains the age of 18 years; which was based on a certificate which was not proved in the proceedings and thirdly, the wife of the deceased was given employment by the MCD and therefore, is a mitigating factor.

6. In response, learned counsel for the respondent has contended that there was no evidence led relating to contributory negligence and the issue was not canvassed by the appellant before the Ld. MACT. Secondly, as regards the certificate, there was no evidence from the appellant to state that it was forged or fabricated, and thirdly, as regards the mitigating factor of the wife being granted employment by the MCD, it was not a ground in the appeal, rather it was only contended that she was ‘entitled’ to appointment on compassionate grounds.

7. A perusal of the impugned award bears out that in the cross-examination of PW-2, he had denied the suggestion that the accident took place due to the negligence of the deceased. Even though the truck, the offending vehicle, was not being driven on the wrong side, as per him the accident occurred in the process of taking sharp turn by the truck at a high speed. There is no reference to the contributory negligence in the written arguments filed in the claim petition.

8. As regards the certificate issued by the MCD, it forms part of the LCR and has been issued by the CMO (M&TB) North-DMC, of the Health Department, dated 30th December, 2014. The said certificate states as under:

“This is to certify that Mr. Deepak Rana (Expired on dated 24.11.2012) s/o Late Sh. Sukhbir Singh who was working as a peon at Bawana Polyclinic under administrative control of Addl. DHA (M&TB) had claimed Tuition F