1 S.B.CIVIL MISC. APPEAL NO.320/1993 (Smt.Priti Khatri and ors. Vs. Chhotu Lal and ors.) Date of Judgment : 11-02-2009 HON'BLE MR.JUSTICE GUMAN SINGH Mr.Sandeep Mathur,for the appellants. Mr.Vinod Tyagi, for the respondent- Ins.Company. This appeal has been preferred by the dependents of deceased Murlidhar for enhancement of compensation awarded by the learned Motor Accident Claims Tribunal, Jaipur city, Jaipur vide judgment dated 20.2.1993 whereby a sum of Rs.5,16,000/- was awarded to the dependents of deceased by way of compensation treating deceased Murlidhar to be liable for contributory negligence to the extent of 1/3rd of the compensation. 2. Briefly stated the facts of the case are that on 20.5.1990 at about 11.15 a.m., deceased Murlidhar was coming on scooter No.RPI-3735 from the side of Bais Godam and was taken a turn towards his right on inter- section of Civil Lines. At that time, he was dashed by truck no.RNG-3219 which was coming from the side of Sodala, resulting in death of deceased Murlidhar. 2 3. The challenge in the appeal pertains to finding on contributory negligence by the learned Tribunal. 4. Learned counsel for the appellant submits that as per statement of Pappulal (AW-2) who was sitting behind the deceased on scooter, there was no fault on the part of scooter driver as the deceased first gave indication towards his right to turn on right side and on moving that direction, he was dashed by the offending truck on account of its rash and negligence driver which was being driven at a very fast speed and the scooter was dragged for 17 ft. from the place of accident by the truck which shows the speed of the truck. It is also submitted that the contributory negligence found by the Tribunal on the part of the deceased is not based on proper appreciation of evidence and that deserves to be set aside. It is further submitted that no evidence has been led by the respondents to controvert the evidence led by the appellant and, as such, adverse inference deserves to be drawn against the respondents. 3 5. Per contra, learned counsel for the respondents supported the judgment of the Tribunal and submitted that the learned Tribunal has taken into consideration evidence adduced during inquiry and has awarded adequate compensation and calls for no interference. It is also submitted that the accident is not denied but it was the duty of the scooter driver to be careful while taking turn on his right side so as to avoid any accident with the vehicle coming from opposite direction as the vehicle coming from opposite direction cannot be stopped abruptly when there was no proper indication and, as such, finding given on contributory negligence by the learned Tribunal is based on the evidence of record though the deceased himself had contributed the accident. The learned counsel for the Insurance Company has further submitted that no evidence is required to be led by the Insurance Company and the learned Tribunal is free to reach its finding on the basis of record including that of site inspection memo. He also supported the judgment of the learned trial court on the point that the 4 relevant rules have been cited so as to draw the conclusion of the negligence while driving the scooter by the deceased. 6. After hearing the rival contentions, and going through the award as also record of the case, it is revealed that the learned Tribunal has though observed that the offending truck was being driven rashly and negligently and it was on account of that reasons, it dragged the scooter at a distance of 17 ft from the place where it dashed the scooter as the speed of the truck was so fast and it could not be controlled on account of extremely high speed. The learned Tribunal has assessed the negligence of 2:1 between the truck driver and the deceased on the ground that the scooter suddenly came infront of truck while deceased was taking turn in his right side. This shows that liability of the contributory negligence has been fixed on the deceased on the ground that he suddenly came infront of the truck and contributed in the accident. But no evidence has been produced on behalf of the defence in the case and as per the testimony of Pappulal 5 (AW-2), who was pillion rider and was hit in the accident, it is clear that the deceased was hit on account of extreme high speed of the truck and that is also evident from the fact that it dragged the scooter at a distance of 17 ft. This shows that the truck was so fast and the scooter driver could not have judged the speed of the truck resulting into accident. It was incumbent on the truck driver to drive the truck at a moderate speed in a very crowded area but in this case, the offending vehicle has failed to observe the requisite minimum speed needed for driving the heavy vehicle in the city roads so as to avoid fatal accident, therefore, there is no basis to apportion any liability and fix at the part of the deceased who was driving the scooter at the time of accident. Thus in view of above, instead of awarding Rs.5,16,000/- by way of 2/3 amount assessed, the entire amount of compensation of Rs.7,74,000/- deserves to be awarded to the claimants. 7. Accordingly, appeal of the appellants is partly allowed and the Award passed by the learned Tribunal is modified to the extent that the appellants shall get a sum of 6 Rs.2,58,000/- by way of additional enhanced compensation from the date of appeal i.e. 16.4.1993, with 6% interest to be paid within three months. Thereafter interest shall be paid @9% per annum. The rest of the terms of award shall remain unchanged. Record be sent forthwith. (GUMAN SINGH),J. Sandeep/- item no.h-1