PERMOD KOHLI, J. - (1.) THIS is claimant 'sappeal seeking enhancement of the compensation amount. The appellant -claimants are the legal heirs of Gurdev Singh deceased, who met with an accident on 26.12.2003 caused by Truck No. HR 45 -7195, which was being driven by Vikram Chehal and owned by Ashok Kumar. The vehicle was insured with the Oriental Insurance Company at the time of the accident. According to the appellant -claimant 'scase, the deceased was going on foot from Zirakpur to K -Area of the Zirakpur -Kalka Road. He was followed by his wife Sarabjit Kaur and friend Trilochan Singh. It was mentioned in the claim petition that they were walking on the extreme left side of the road and when they reached near the Yadvindra Bridge near K -Area, the offending truck driven by its driver, Vikram Chehal, came from behind and hit Gurdev Singh, who died as a result of injuries sustained in accident. It is further alleged that the truck was driven in a rash and negligent manner. First Information Report came to be registered with the concerned police station. The learned M.A.C.T. framed the following issues: (1) Whether the claimants are the legal heirs of deceased? OPP (2) Whether the deceased died in a motor vehicular accident which took place due to the rash and negligent driving of respondent No. 1 while he was driving truck No. HR45 - 7195? OPP (3) If issues No. 1 and 2 are proved to what amount of compensation the claimants are entitled to and from whom of the respondents? OPR (4) Whether respondent No. 1 was not holding a valid driving licence? OPR (5) Relief.
(2.) THE claimants are aggrieved of the findings of the learned Tribunal on the question of contributory negligence; assessment of the income of the deceased and the non -consideration of the relevant factors, like future income of the deceased, consortium and other permissible claims. While deciding issue No. 2, the learned Tribunal has held that the negligence is to be apportioned between the driver of the offending vehicle and the deceased -pedestrian. This apportionment has been made on the basis of the opinion of the learned Tribunal that a pedestrain also has the duty of care while walking on the road when there is heavy vehicular traffic. According to the learned Tribunal, no evidence has been brought on record on behalf of the claimants that the deceased was going on a Kaccha Path when he was hit by the truck from behind. The learned Tribunal, accordingly, held that the deceased was walking on metalled road when he was hit by the offending vehicle.
(3.) WHILE going through the findings of the learned Tribunal on this question, lam shocked to find that these findings have been returned by the learned Presiding Officer of the Tribunal without any evidence on record. It is admitted case that neither the driver of the truck appeared as a witness nor any other eye witness was produced by the respondents to rebut the evidence led by the claimants. The Tribunal itself has noticed in paragraph 10 of the judgment that the respondents have not led any evidence to rebut the statement of PW -3 On what basis the Tribunal has arrived at the findings of contributory negligence, is neither evident from the impugned order nor forthcoming from material on record. It appears to me that the same is totally based upon conjectures and surmises and imagination of the learned Tribunal. Contributory negligence is a question of fact which is required to be pleaded and proved. In the present case, neither there is any pleading to this effect nor any proof whatsoever. There is no material on record even to suggest contributory negligence on the part of the deceased. This finding of the learned Tribunal is, thus, totally perverse and is liable to be set aside.;