Mere overloading of a vehicle does not establish contributory negligence unless it is proven that such an act directly caused or contributed to the accident. Compensation for a deceased child must be assessed based on the earning potential of a skilled worker, including future prospects and an appropriate multiplier.

YASHVIR SINGH RATHOR. J.(Oral)

IOIN-1-FAO-4498-2005

The present IOIN has been filed by Registry to complete the service of respondent No.2. However, no effort has been made by the learned counsel for the appellant to file the correct address of respondent No.2.

However, the Insurance Company has been held liable jointly and severally to pay compensation and to indemnify the insured by the Tribunal and accordingly, issuance of notice to respondent No.2 is dispensed with.

The main appeal is ordered to be taken up for hearing today itself.

FAO-4498-2005

1. This appeal has been instituted against the Award dated 24.12.2004 for enhancement of compensation awarded in MACT case No.87 of 2001 decided by the MACT, Fatehabad (for short “Tribunal”) in a petition under Section 166 of Motor Vehicles Act, 1988 vide which a sum of Rs.1,12,500/- has been awarded as compensation to the claimant alongwith interest @ 9% per annum from the date of filing of claim petition till realization on account of death of her minor son, namely, Mukesh in a motor vehicular accident which took place due to rash and negligent driving on the part of respondent No.1 while driving the offending vehicle bearing No.HR-39-5447 (for short ‘offending vehicle’) which was owned by respondent No.2 and insured with respondent No.3.

2. Case of the claimant is that on 25.08.2001 her husband, namely, Mahabir (since deceased), Parveen, Ankit and her son Mukesh were going towards Fatehabad to Village Ayalki on scooter bearing No.HR-22-B-3704 which was being driven by Mahabir at a moderate speed on the left side of the road. When they reached near the gate of Veterinary Hospital, Ayalki, one truck bearing No.HR-39-5442, which was being driven by respondent No.1-Ruli Ram at a high speed and in a rash and negligent manner came from the side of Fatehabad and it hit the scooter being driven by Mahabir after coming to the wrong side. The truck dragged the scooter to some distance and thereafter, respondent No.1 fled away from the spot leaving behind the truck. Occupants of the scooter, namely, Mahabir, Mukesh, Parveen and Ankit suffered multiple injuries. Mukesh died at the spot while Mahabir, Parveen and Ankit were brought to Civil Hospital, Fatehabad. Seeing the serious condition of Mahabir, he was referred to PGI Rohtak but he died on the way to the hospital. Petitioner claimed compensation of Rs.5,00,000/- on account of death of her son Mukesh.

3. Respondent No.1 was proceeded against ex parte. Respondent No.2 in his written statement has taken a stand that no accident took place with the offending vehicle. It has been denied that deceased Mahabir was driving the scooter at a moderate speed and on the left side of the road or that truck was being driven rashly and negligently on the wrong side and hit the scooter. Remaining contentions of the petition have also been refuted to be wrong. It is further submitted that accident infact had taken place due to rash and negligent driving on the part of scooterist and dismissal of the claim petition was sought.

4. Respondent No.3-Insurance Company has also refuted the contents of the claim petition in its written statement. It is submitted that a false story has been concocted just to grab compensation. It has been denied that accident took place due to rash and negligent drivin