- (1.) THE instant civil misc. appeal has been filed by the appellant -claimant under Section 173 of the Motor Vehicles Act for enhancement of the impugned award dated 31.1.2007 passed by the MACT, Alwar in claim case No.403/2005, whereby the Tribunal while partly allowing the claim awarded a sum of Rs.2,87,800/ - as compensation to the claimant -appellants.
(2.) THE brief facts as emerging on the face of record are that a claim petition came to be filed by the parents, brothers and sister of deceased Narayan before the Tribunal under Section 166 of the M.V. Act stating therein that on 10.10.2005 the injured Narayan went in connection with jot(prayer) to Umren from there when he was returning to Alwar after completing the job on 10.10.2005 then after Dhai Pedi and in front of Farm House of Chhabdi he was driving motor cycle towards his side at that time from opposite direction a Tempo bearing No.R.J. -02/G A -0184, which was being driven rashly and negligently came there and hit deceased's motor cycle from wrong side due to which deceased Narayan's head, eye and nose crushed thereafter he was carried in a vehicle to the hospital, where he succumbed on account of the injuries. The report of the said incident was lodged at Aravali Vihar Police Station. The concerned police after investigation filed a challan against non -petitioner No.1 Shahjad Khan on finding Shahjad Khan guilty. It was averred in the claim petition that deceased Narayan Saini was 25 years of age, he was working on the post of Foreman in the National Product casting, Dehli Road, Alwar and supplying milk from which he was earning Rs.6000/ - per month. The claimants demanded Rs.87,45,000/ - on all counts as a compensation. It was alleged that at the time of accident the non -petitioner No.1 was driver of the offending vehicle and he was working under the employment and for the benefit of the owner of the said vehicle non -petitioner No.2. The offending vehicle was insured with the non -petitioner No.3 Insurance Company. Therefore, it was prayed that all the non -petitioners are responsible for payment of compensation to the claimants jointly and severally. The non -petitioners Nos. 1 and 2 filed their reply denying almost all the allegations made in the claim petition and stated that in the so called accident there was no fault and negligence on part of the driver of the Tempo bearing No. R.J. -02/G A -0184 non -petitioner No.1. It was also stated that the non -petitioner No.1 was having effective and valid licence at the time of the accident. It was pleaded that at the time of accident the offending Tempo was insured with the Insurance Company and accident also occurred during the period when insurance policy was effective of the vehicle. It was submitted that if the Tribunal determines any compensation then the same will be liable to be paid by the non - petitioner No.3. It was prayed in the reply that the claim of the claimants be rejected qua the non -petitioners Nos.1 & 2. The non -petitioners Nos. 1 & 2 filed their reply on 27.1.2006 and thereafter did not appear before the Tribunal, therefore, ex parte proceedings were drawn against them. The non -petitioner No.3 Insurance Company filed their reply denying almost all the allegations made in the claim petition and stated that there was no rash and negligent driving by the driver of the Tempo bearing No. R.J. -02/G A - 0184 but in fact due to his own mistake and negligence the deceased met with the accident. It was alleged that at the time of accident the deceased was driving motor cycle rashly and negligently due to which he lost control over the motor cycle and dashed with the Tempo. It was further contended that at the time of accident the tempo was driven by a person, who was having an expired driving licence. It was pleaded that in the accident the motor cycle was involved but the owner and insurance company of the motor cycle were not made party to the claim petition, which was necessary. It was contended that the accident took place in between two vehicles and under these circumstances the principle of contributory negligence should be applied. It was further contended that the claimants have wrongly shown income of the deceased. It was submitted that protection under Sections 170 & 149 of the M.V. Act is required to be given to the Insurance Company. It was prayed in the reply that the claim qua Insurance Company be rejected.
(3.) THE Tribunal after hearing both the parties, framed as many as 5 issues including the issue of relief. The claimant in support of his claim got recorded statements of A.D.1 claimant Ramji Lal himself, A.D.2 Sunil Saini and also produced 13 documents in documentary evidence. The Tribunal after hearing both the parties and perusing the evidence and material available on record passed the impugned award granting a total compensation of Rs. 2,87,800/ - under the different heads. Hence this appeal.;