K. Kannan, J. - (1.) The appeal is for enhancement of compensation filed at the instance of the widow and sons of the deceased male aged 60 years. There was in evidence placed by the claimant through an independent witness that the accident had taken place at the turn of the road by the negligent driving of the 1st respondent. The Tribunal rejected that evidence and assumed that both vehicles which were involved in the accident must share equal responsibility for the accident, for the reason that in the FIR, there had been evidence to the fact that accident has been caused by a head on. The Tribunal reasoned that it was 30 ft. broad road and each driver could have seen each other, since the accident took place in broad daylight at 11:30 a.m. and assessed the compensation relied on a judgment of this Court in Gurmeet Kaur and Anr. v. Mohinder Singh and Ors., (2006-1) PLR 684 .
(2.) I would hold the reasoning to be erroneous and application of law to be unnecessary. The issue of negligence is not a point of law, it is essentially a question of fact. There is no reason that the Tribunal could presume that the evidence placed by an eyewitness must be discarded when the respondent was not prepared to take the witness stand to deny the evidence of what was attributed against him as negligent driving. The reference to case law must be understood only if there is clear evidence placed that the accident took place somewhere in the middle of the road with both vehicles had been seen to be driven rashly and negligently. An accident that is spoken to by a witness as having taken place at the turn of the road could not be taken as merely making possible an inference that the drivers of both the vehicles could be found to be negligent. In view of the uncontroverted evidence of the appellant's witness, the accident must be seen only as having been caused by the 1st respondent's negligent driving.
(3.) As regards the quantum, the learned counsel contends that the deceased was the owner and driver of the truck. The claimants had stated that the deceased used to earn Rs.span 25,000/- per month but he had not placed appropriate evidence. The Tribunal observed that a driver must have earned Rs.span 3,500/- per month and took the same as the basis of income. This is again inappropriate, for, an earning of a owner driver cannot be seen to be the same as income of a driver. The learned counsel argues that an owner driver must have a margin for his ownership and it cannot be assumed as though he would have earned only as much as money that he could have paid the driver. I would take the monthly income at Rs.span 5,000/-. The learned counsel also contends that there was evidence to the effect that medical expenses had been incurred to an extent of about Rs.span 86,000/- before his death. The Tribunal held that only Rs.span 15,000/- could be awarded. The maximum limit of Rs.span 15,000/- is only for claims under Section 163-A, if the claim was pursued under Schedule II. There is no bar for admitting of the entire expenses incurred on behalf of the deceased in a claim made under Section 166 of the MV Act. The compensation would also require to be revised by providing for the entire medical expenses which were claimed by him. The counsel also has a grievance in the manner of assessment of compensation that does not provide for the conventional heads of claim like loss to estate and funeral expenses. I will provide for an additional amount of Rs. 15,000/- under the above heads of claim that would also include loss of consortium to the wife. On an overall consideration, the compensation would be worked thus: JUDGEMENT_196_LAWS(P&H)9_20121.html In view of the reversal of finding against contributory negligence, the entire amount shall be payable by the insurance company for the second respondent vehicle. The additional amount of compensation will also attract interest @ 7.5% per annum from the date of petition till the date of payment. Since the appellants 2 and 3 themselves are majors, the compensation will be distributed in the ratio of 2:1:1 amongst the appellants.;