B.B. Mangalmurti, J. - (1.) Instant Miscellaneous Appeal has been filed against the judgment/award dated 21.02.2015 passed by Shri Manoj Prasad, the then Motor Vehicles Accident Claims Tribunal, Ranchi in Compensation Case No.37 of 2006 by which the claim application filed by the claimants has been allowed and the opposite party no.3-Oriental Insurance Company Ltd, appellant herein was directed to pay 80% of the total compensation amount, which after calculation comes to Rs.7,88,400/- with 9% per annum interest from the date of admission till the date of payment to the claimants in their joint names within one month from the date of the order after deducting the payment made under Section 140 of the M.V. Act, failing which they shall have to pay 12% interest.
(2.) The short facts of the case is that on 06.12.2005 at about 1 p.m. near Lowadih Chowk, the deceased Pramod Kumar Makan was going by tempo bearing registration no.BR-14D-7915 and at that time a truck bearing registration no.BR-14G-9588 driven rashly and negligently by its driver dashed the tempo on the left side of the road. The impact of the accident was that all the occupants sustained grievous injuries and some of them were referred to RMCH, Bariatu, Ranchi where Pramod Kumar Makan died in course of treatment. His Post-mortem examination was conducted there. It is claimed that the deceased was earning from business Rs.18,000/- per month.
(3.) Learned counsel for the appellant submitted that there was head on collision between Tata 407 Truck bearing registration no.BR-14G-9588 and Auto Rickshow bearing registration no.BR-14D-7915 so there was contributory negligence on part of both drivers and as such apportionment of compensation should be 50-50%. Learned counsel further submitted that the claimants have failed to establish the occupation of deceased and learned Tribunal exorbitantly taking into account the income of deceased awarded compensation on the higher side. She further submitted that learned Tribunal arbitrary and illegally held that the claimants are entitled for a total compensation of Rs.9,85,500/- along with interest @ 9% per annum from the date of admission under Section 166 i.e. 18.06.2010 till realization within one month from the receiving the copy of judgment. Learned counsel also submitted that if the Court directs this appellant to comply the impugned judgment then right to recovery be given to this appellant from the owner of said tempo as the tempo was not insured and it is violation of norms and laws held by Hon'ble Apex Court in the cases of Municipal Corporation of Greater Bombay Versus Laxman Iyer and Another, 2003 8 SCC 731, Renuka Devi H. & Others Versus Bangalore Metropolitan Transport Corporation & Others, 2008 17 SCC 56 and National Insurance Company Ltd. Versus Yohannan & Others, 1998 AIR(Ker) 37. Learned counsel for the appellant submitted that Municipal Corporation of Greater Bombay (supra) the Court has held that :- "It is now well settled that in the case of contributory negligence, Court have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility for the damage." In the case of Reunka Devi H. & Others (supra) it was held :- "In the present case, admittedly the High Court had in fact come to the conclusion that the appellant had also contributed to the negligence and therefore, the compensation was reduced to 50%. Learned counsel for the appellant also submitted that in view of Hon'ble Supreme Court decision relating to National Insurance Company Limited Versus Pranay Sethi & Others, 2017 16 SCC 680, the award on conventional head are much higher and is inconsistence with above decision as the Tribunal has awarded Rs.2,25,000/- although it should have been total Rs.70,000/- only. The award needs modification on this account also.;