Income for motor accident compensation can be determined using the last income tax return filed prior to the accident. Contributory negligence is assessed on the preponderance of probabilities, considering whether the victim had a reasonable opportunity to take evasive action.

0.8594820378783151

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Approved for Reporting Yes No

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ORAL JUDGMENT

1) This appeal has been preferred by the appellant – Insurance Company against the impugned judgment and award dated 29.11.2021 passed by the learned Motor Accident Claims Tribunal (Aux), Rajkot, (for short referred to as “learned Tribunal”) in Motor Accident Claim Petition No.52 of 2014 under Section 166 of the Motor Vehicles Act, 1988 (for short referred to as “MV Act”) wherein the Tribunal has partly allowed the claim petition filed by the claimants.

2) The original claimants – respondents herein have objected the present appeal by filing cross objections being Cross Objection No.219 of 2022. Therefore, First Appeal and Cross-Objections both are hereby taken up for final hearing and decided by this common judgment.

3) Heard Ms. Kirti Pathak, learned counsel for the appellant – Insurance Company and Mr. Nishit Bhalodi, learned counsel for the respondent claimants.

4) The brief facts of the present claim petition are that the accident took place on 01.09.2013, the deceased was going in his car bearing No.GJ-03-DG-6556 on the correct side of the road and when reached near Khodiyar Farm at Jamnagar Rajkot Highway, one Bolero car bearing No.GJ-10-AC-4424 came from wrong direction in rash and negligent manner with excessive speed and dashed with the car of the deceased. As a result, the deceased got serious and succumbed to it. In this regard, a complaint was lodged against the driver of Bolero car. Therefore, the claimants have filed claim petition before the Tribunal which came to be partly allowed and the Tribunal awarded compensation of Rs.1,19,95,033/- along with interest at the rate of 9 % p.a.

5) Learned counsel for the appellant – Insurance Company has submitted that the Tribunal has committed error in considering monthly income of the deceased. 50 % contributory negligence is required to be considered on the part of the deceased. Further, the Tribunal has straightaway accepted the income returns rather to accept average income of all income tax returns, which ought to have been considered by the Tribunal. However, the Tribunal failed to consider the same. Though the claimants failed to prove the pleadings before the Tribunal based on presumption and assumption, the Tribunal has awarded exorbitant compensation to the claimants. The Tribunal has failed to consider the settled principles of law and ignored the fact that under Section 168 of the Act, just compensation is required to be considered based on fairness, equability and legal standard. Hence, he has requested to allow the appeal and dismiss the Cross-Objections of the claimants.

6) Mr. Hemal Shah, learned counsel for the claimants opposing present appeal and supporting his cross-objection submitted that, the Tribunal has committed error in considering 10 % negligence on the part of the deceased and not awarded just compensation. There was no evidence on the record which suggests that the deceased was negligent in causing the accident because Bolero car came from wrong side jumping divider and dashed with the car of the deceased. Therefore, question does not arise to consider contributory negligence on the part of the deceased. Hence, he has requested to dismiss