Negligence in vehicle accidents hinges on driver conduct and valid licensing, impacting liability and compensation calculations.

JUDGMENT

The insant appeal has been preferred challeing the finding on negligence and the quantum of compensation awarded to the respondents.

2. The respondents 1 to 4 had filed the claim petition stating that on 26.06.2019, while the deceased was riding a two wheeler, in which, P.W.2 travelled as a pillion rider, the car owned by the sixth respondent, insured with the appellant herein, came in a rash and negligent manner and caused the accident, as a result of which, the deceased sustained fatal injuries.

3. The sixth respondent who is the owner of the car remained exparte before the Tribunal.

4. The appellant who was shown as the second respondent before the Tribunal, filed a counter stating that the driver of the car insured with them did not have valid licence; that the accident took place due to the negligence of the driver of the car and that the deceased, in any case, is liable for contributory negligence for not wearing helmet and therefore, sought for dismissal of the claim petition.

5. The claimants examined three witnesses on their side as P.W.1 to P.W.3 and marked documents Exs.P.1 to 13. The appellant examined R.W.1 and marked documents Exs.R.1 to R5.

6. The Tribunal, after taking into consideration the oral and documentary evidence, held that the driver of the offending vehicle was guilty of rash and negligent driving and therefore, the appellant was liable to pay the compensation. The Tribunal also held that the driver did not possess valid licence and hence, directed the appellant to pay and recover the compensation from the fifth respondent herein.

7. The learned counsel appearing for the appellant would contend that the Tribunal had taken into consideration the pension drawn by the deceased at the time of his death while computing the loss of income without deducting the family pension received by the first claimant; that the Tribunal erred in not fixing contributory negligence on the deceased, as they had established before the Tribunal that the claimants, namely respondents 3 and 4 are not dependents and hence, the Tribunal ought to have deducted 1/3 income towards personal expenses instead of ¼ and hence, prayed for modification of the award of the Tribunal.

8. The learned counsel appearing for the respondents, per contra submitted that though the appellant pleaded that the deceased did not wear helmet, there is no evidence to substantiate the same; that the income taken into account by the Tribunal namely the pension drawn by the deceased is in accordance with law; and that the Hon’ble Division Bench of this Court in CMA No.1713 of 2020 dated 15.03.2024 had held that the family pension should not be deducted while computing income and therefore, the award of the Tribunal is just and reasonable and no interference is called for.

9. This Court has carefully considered the rival submissions.

10. The points for determination in the instant appeal are as follows:

i) Whether the Tribunal was right in fixing liability on the driver of the offending vehicle and directing the appellant to pay and recover the compensation amount ?

ii) Whether the compensation awarded by the Tribunal is just and reasonable?

11. As regards the first question, the main submission of the learned counsel for the appellant is that though they have stated in the counter that the deceased did not wear helmet and the nature of injuries reflected in the post mortem certificate suggests that the deceased sustained head injuries, the eye witnesses did not state that the deceased wore a helmet at the time of the accident. It is a fact that none of the witnesses on the side of the claimants have specifically stated that the deceased was wearing a helmet at the time of the accident. The post mortem certificate also suggests that the deceased sustained head injuries. However, this Court finds that the appellant had not examined any independent witnesses to establish the fact asserted by them. Under such circumstances, on the basis of available evidence, this C