The court overturned a finding of contributory negligence against the deceased and adjusted the compensation based on the accurate estimation of earnings.

1. This is a claimants' appeal for enhancement of compensation not being satisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal (Auxi.) at Dhoraji in Motor Accident Claim Petition No. 410 of 2012 dated 11.5.2018 where - under claim petition filed by the appellants came to be allowed in part and compensation of Rs. 7,19,000 has been awarded with interest at the rate of 9 per cent per annum from the date of filing of the claim petition till the date of realization. The deceased has been held to be responsible for the accident to the extent of 10 per cent by contributing his negligence and, as such, 10 per cent has been ordered to be deducted from total compensation awarded by the Tribunal. Hence this appeal.

2. Brief background:

3. Deceased Natvarlal Mohanlal Kachhela was driving his motor cycle on 4.11.2009 and when he came near Village Kadlal on Dhrafa - Jam - Jodhpur Road, driver of the motor cycle bearing registration No. GJ 03 - KK 2807 (sic GJW 25 - B 8901) from the opposite side in a rash and negligent manner dashed against the motor cycle driven by the deceased and, as such, it resulted in deceased falling down and sustaining injuries. As a result of said injuries, he expired on 2.12.2009 and treatment extended did not yield any fruitful result. Hence, wife, parents and children of the deceased filed a claim petition under S.166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 30,00,000. Tribunal, as noticed hereinabove, has awarded compensation of Rs. 7,19,000 under following heads:
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4. On account of the purported negligence attributed to the deceased, 10 per cent of the amount has been ordered to be deducted from the total compensation awarded.

5. We have heard Mr. Jenil M. Shah, learned counsel appearing for the appellants, and Mr. Chirayu A. Mehta, learned counsel appearing for respondent No. 3.

6. Since the insurer has not disputed the issuance of policy to the offending vehicle and award having been satisfied, question of issuing notice to respondent Nos. 1 and 2 does not arise and it stands dispensed with. Record and proceedings of the Tribunal having been secured, this appeal is being disposed of keeping in mind that claimants are the widow and children of the deceased and the aged parents.

7. It is the contention of the learned counsel appearing for the appellants that Tribunal committed a serious error in awarding abysmally less compensation without considering the material evidence that was available on record and he would draw the attention of this court to the award where - under Tribunal has considered the income of the deceased at Rs. 3,000 per month to contend that said finding is without any basis and, as such, he prays for enhancement of compensation under all heads.

8. Per contra, Mr. Chirayu Mehta, learned counsel appearing for the insurer, has vehemently contended that what has been awarded by the Tribunal itself is on excessive side and, as such, award of the Tribunal would not call for interference. Hence, he has prayed for dismissal of the appeal. In reply, Mr. Jenil Shah, learned counsel, would contend that Tribunal committed a serious error in arriving at a conclusion that there was contributory negligence on the part of the claimant without considering the fact that appellants' records clearly indicated that driver of the opposite vehicle had been charged with rash and negligent driving and, as such, Tribunal should not have held that there was any negligence on the part of the deceased and countering his argument, learned counsel for the insurer would support the findings of the Tribunal recorded in this regard to contend that the accident had occurred at a curve and same being hea