Sunil Kumar Garg, J. - (1.) This civil misc. appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act of 1988') has been filed by the claimants-appellants against the judgment and award dated 15.5.1989 passed by the learned Judge, Motor Accidents Claims Tribunal, Jodhpur in Claim Case Nos. 106 of 1985 and 85 of 1986 by which he awarded a sum of Rs. 60,000 as compensation to claimants-appellants on account of death of Madan Kumari (hereinafter referred to as 'the deceased') and Rs. 200 on account of damage caused to the Hero Majestic moped No. RRN 4059 (hereinafter referred to as 'the moped in question'), but this appeal has been filed by the appellants-claimants who are legal representatives of the deceased for enhancement of amount of compensation.
(2.) It arises in the following circumstances: (i) That the appellants-claimants filed claim petition before the Motor Accidents Claims Tribunal, Jodhpur (hereinafter referred to as 'the Tribunal'), on 9.12.1987 claiming a sum of Rs. 3,50,000 as compensation on account of the death of the deceased in the accident alleging, inter alia, that on 11.10.1985 at about 9 a.m. Vinod Kumar, appellant No. 2, along with his mother Madan Kumari (deceased) was going on moped in question from their residence towards Raikabagh Bus Stand. It was further stated that the moped was being driven by Vinod Kumar, appellant No. 2 and Madan Kumari (deceased) was sitting as pillion rider on the back of the moped in question. It was further stated in the claim petition that when moped reached near Khet Singh Ji Ka Bungalow situated on Jodhpur-Mandore Road, Vinod Kumar, appellant No. 2, joined the main road from the road coming from Ship House and after joining the main road, he turned towards the road leading to Paota and Raikabagh. It was further stated that after appellant No. 2 took turn towards Paota and Raikabagh, a truck bearing registration No. RJO 3778 (hereinafter referred to as 'the truck in question') which was being driven by Jai Singh, respondent No. 1, rashly and negligently and owned by Santok Singh, respondent No. 2 and insured with National Insurance Co, Ltd., the respondent No. 3, came from behind with a very great speed and dashed against the moped in question which was being driven by Vinod Kumar, appellant No. 2, as a result of that accident, the deceased died. (ii) That iae respondent No. 3 filed reply to the claim petitions and after filing reply, learned Tribunal framed six issues. (iii) That learned Tribunal after recording evidence and after hearing the parties, passed the award dated 15.5.1989 in the manner as stated above and while deciding issue No. 1, the learned Tribunal came to the conclusion that the accident took place not only because of rash and negligent driving by Jai Singh, driver of the truck in question, respondent No. 1, but the learned Tribunal also held that Vinod Kumar, appellant No. 2, who was riding the moped in question was also equally negligent and, therefore, though he came to the conclusion that the claimants-appellants were entitled to Rs. 1,20,000, but since there was 50 per cent contributory negligence on the part of Vinod Kumar, appellant No. 2, therefore, he awarded compensation of Rs. 60,000 only to the claimants-appellants. (iv) Aggrieved from the judgment and award dated 15.5.1989, this appeal has been preferred by the appellants.
(3.) In this appeal, findings on issue No. 1 have been challenged seriously and main submission of the learned counsel for the claimants-appellants is that at the most if there was contributory negligence, that was between Vinod Kumar, appellant No. 2 and the driver of the truck in question, but there was no contributory negligence on the part of the deceased and hence the Tribunal wrongly deducted the amount of compensation to the tune of 50 per cent. It has further been submitted by the learned counsel for the appellants that it was a case of composite negligence and not a case of contributory negligence and it has been further submitted that since there was no contributory negligence of the deceased, therefore, legal representatives of the deceased were entitled to get full compensation as determined by the learned Tribunal and hence the findings of Claims Tribunal regarding deduction of 50 per cent of the compensation are liable to be set aside and this appeal deserves to be allowed.;