- (1.) Challenge in this appeal by insurer of truck registration No. HR 38L-9562 is to the award dated 6.2.2012 passed by MACT/Special Judge (SC/ST Act), Etah in MACP No. 238 of 2008 whereby compensation of Rs. 5,01,300/- have been awarded to the claimants-respondents No. 1 to 7 on account of death of Chhotey Khan in motor accident. Facts germane to the appeal are that on 27.2.2008 deceased Chhotey Khan was carrying his buffaloes for sale to Sikandara Rao animal market in Tata 407 UP 82A-9232 alongwith co-villagers Hazari, Imran, Kallu and Afsar and when at about 6.00 a.m. their vehicle reached in between villages Gulabpur and Bhadua, the driver of truck HR 38L-9562 driving the vehicle rashly and negligently from opposite side dashed with Tata-407 aforesaid damaging the vehicle, killing the she-buffaloes and injuring all the inmates including Chhotey Khan. He was taken to Aligarh Medical College and thereafter shifted to Safduarjung Hospital, Delhi where he succumbed to the injuries during treatment on 4.3.2008. The report of the accident was lodged with the police same day and case was registered as crime No. 40/2008 in P.S. Piluwa District Etah and the police after investigation submitted charge-sheet against the truck driver. The claimants alleged in the claim petition that the 30-years' old deceased was earning Rs. 12,000/- per month from sale and purchase of animals and was also doing agriculture. The truck was owned by respondent No. 8 and it was insured with the appellant. The owner of the truck denied the rash and negligent driving of his truck driver and charged the Tata-407 driver for his negligent act in the accident. He contended that all the papers of his vehicle were valid and it was insured with ICICI Lombard General Insurance Co. Ltd. The appellant denying the allegations of the claim petition inter alia stated that it was head-on accident between the two vehicles, so drivers of both the vehicles are responsible and the owner of the truck has committed breach of terms of insurance policy, so they are not liable to indemnify the award. In support of their claim, the claimants examined the widow of the deceased as PW 1 and Kallu PW 2 and Irfan PW 3. They also filed several documents relating to the treatment of deceased in different hospitals as also the police papers including the post-mortem notes of the deceased. The owner of the truck filed copies of registration certificate, national permit, fitness certificate and insurance policy of the truck in question. No witness was examined on behalf of the owner or the appellant. The Tribunal after hearing the parties' counsel gave the award as stated above.
(2.) We have heard the Learned Counsel for the appellant and perused the impugned award as well as the papers filed alongwith the memo of appeal.
(3.) Learned Counsel for the appellant has contended that from the facts of the case it is apparent that it was head-on collision between the two vehicles, but the Tribunal has erroneously held the truck driver responsible for the accident only, in any event it was a case of contributory negligence; that the Tribunal has wrongly placed reliance on the site plan and charge-sheet filed against the truck driver; that amount of quantum compensation awarded is arbitrary and highly excessive as the claimants could not establish the alleged income of the deceased; that the Tribunal has committed manifest error in deducting merely 1/5th from the income of the deceased for his personal and living expenses instead of 1/3rd and has wrongly placed reliance on the case of Smt. Sarla Verma v. DTC and others, 2009 2 TAC 677and lastly the compensation awarded under various heads had not been established in accordance with law.;