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PETITIONER: SMT. INDRANI RAJA DURAI & ORS.

       Vs.

RESPONDENT: MADRAS MOTOR & GENERAL INSURANCECOMPANY & ORS.

DATE OF JUDGMENT:       16/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 SCC  (2) 157        JT 1996 (1)   586  1996 SCALE  (1)563

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  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. The 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 life. Consequently, 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 years. The 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.      We 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  perspective. Since 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

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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.      The appeal is accordingly allowed. No costs.