Raja Durai & Ors Vs. Madras Motor & General Insurance Company & Ors
 INSC 71 (16
K.Ramaswamy, K.G.B. Pattanaik (J)
1996 SCC (2) 157 JT 1996 (1) 586 1996 SCALE (1)563
O R D
by special leave arises from the order dated June 14, 1971 of he Division Bench of the High Court of Madras in Appeal
against Order No. 34 and 174 and 1973.
facts are fairly clear.
On April 4, 1971, while the deceased Rajadurai was
driving the motor cycle from western direction to eastern direction on the National Highway Madras to Bangalore at Kathur Junction, a motor vehicle
had come in between. As a consequence, he had taken extreme right to save his
the but his the motor cycle. As a result of which he died on the spot. The
appellants are the widow and the children of the deceased who was aged about 31
finding of the Tribunal is that the deceased was earning Rs.800/- per month. On
that basis the Tribunal awarded a sum of Rs.1 lakh. The Tribunal held that
there was a contributory negligence. On that basis, after giving the benefit of
contributory negligence it fixed the amount at s. 1 lakh. The High Court
reversed the finding on the ground that the diver of the bust was not
negligent. The entire negligence was on the part of the deceased. As a
consequence, the appellants are not entitled to the compensation. Thus this
appeal by special leave.
have scanned the evidence and reasoning of the High Court and the Tribunal.
Unfortunately, the High Court has not considered the evidence from the proper
the driver of the bus equally was driving at high speed, greater care was
required of him to see that no accident took place. It would appear from the
circumstances that the deceased, with a view to save himself from being
sandwiched between the car and the bus, had taken to the extreme right. As a
consequence, he hit the left bumper of the bus. It would thus be clear that the
driver of the bus equally contributed to the accident. On the facts and
circumstances. We think that negligence can be apportioned as 60% and 40%. As a
consequence, the respondent is liable to pay compensation of Rs. 60,000/- and Rs.
40,000/- would be foregone by the appellants. Under these circumstances, the
order of the High Court is set aside. The order of the Tribunal is also
modified. The appellants a entitled to a sum of Rs. 60,000/- with interest at
60% from the date of the judgment of the Tribunal dated November 30, 1972. It would appear that the original
Insurance Company which insured the vehicle having been taken over by the
United India Insurance Company, which is a nationalized company, is liable to
pay proportionately to the extent of the insurance cover. The appellants are entitled
to recover the amount from the Company and the balance from the owner.
appeal is accordingly allowed. No costs.