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Madhya Pradesh High Court · body

2003 DIGILAW 636 (MP)

Mahesh v. Vishwas

2003-04-30

A.M.SAPRE

body2003
JUDGMENT 1. Claimant is the appellant of this appeal. He is not satisfied with the award dated 12.1.2000 awarding a total sum of Rs.25,000/- together with interest at the rate of 12% on the awarded sum. He says that he is entitled for more and hence, he has come up in appeal under section 173 of Motor Vehicles Act. 2. Heard Shri V.S. Chauhan, learned counsel for the appellant and Shri V. Singh, learned counsel for respondent No.3 on the question of admission. 3. Claimant while driving auto-rickshaw bearing No. MP 01 - 0881 on 18.9.1994 met with an accident with another auto bearing No. MP 10 - T- 0027 driven by NA No.1. The auto driven by the claimant was insured with NA No.3 (respondent No.3) on the date of accident. It is in this accident, the claimant suffered injuries in his leg. It is this incident which gave cause of action to the claimant to file claim petition and claim compensation for the loss occasioned due to injury suffered by him. The non-applicants No.1 and 2, i.e. driver and owner of other vehicle remained ex parte whereas, respondent No. 3 Insurance Company only filed written statement. The claimant alone entered into the witness box and led evidence. He also examined one eye witness to prove the nature of accident. So far as non-applicants are concerned, no evidence was led on their behalf. 4. The learned member of the Tribunal partly allowed the claim petition. Awarding compensation at Rs.25,000/- in all, it further held that it was a case of contributory negligence. It was held that claimant was negligent to the extent of 25% whereas non-applicant No. 1 was negligent to the extent of 75%. Accordingly, claimant was held entitled to recover 25% of the compensation from the. Insurance Company whereas 75% was directed to be recovered from the non-applicant No.1 and 2. It is against this award dated 12.1.2000, passed by learned II Additional Member, Motor Accident Claims Tribunal, Khargone in Claim Case No. 14 of 1995, the claimant has felt aggrieved and filed this appeal. 5. Having heard learned counsel for the parties and having perused record of the case, I am inclined to allow the appeal in part. 6. In my view, learned member was not right in holding that it was a case of contributory negligence. Indeed, there was no evidence to sustain this finding. 5. Having heard learned counsel for the parties and having perused record of the case, I am inclined to allow the appeal in part. 6. In my view, learned member was not right in holding that it was a case of contributory negligence. Indeed, there was no evidence to sustain this finding. Firstly, in the absence of any rebuttal evidence led by the non-applicant as to how and in what manner the accident occurred, there did not arise any occasion for the Tribunal to come out with a case of contributory negligence, it was also equally necessary for the driver of other vehicle to have entered in witness box and explain as to how the accident occurred and how the claimant actually drove his vehicle causing damage to his vehicle. 7. The only evidence before the Tribunal was that of claimant and one of eye witness. In the evidence of these two witnesses, nothing has come out to hold that a case of contributory negligence is made out. On the other hand, the evidence of claimant clearly suggests that the vehicle driven by the respondent No. 1 (NA No.1) came from rear and while overtaking the auto of claimant, dashed to claimant's auto. In such situation, no case of contributory negligence can be attributed to claimant, who was in no way responsible for any negligence while driving his vehicle. Accordingly and in view of this discussion, I am inclined to upset the finding of the Claims Tribunal relating to contributory negligence. I hold that evidence on record do not make out a case of contributory negligence so far as claimant is concerned and the entire negligence was that of NA No. 1 in accident. 8. This takes me to the issue of compensation awarded to the claimant. It is not in dispute that claimant has suffered an injury in his leg and the injury has resulted in partial but permanent disablement to the claimant. It is this factor which makes the claimant entitled to claim compensation for the loss resulted to claimant due to injury and resultant disability. In my opinion, a sum of Rs.25,000/- over and above awarded to the claimant would meet the ends of justice. 9. Accordingly, the appeal succeeds and is allowed in part. It is this factor which makes the claimant entitled to claim compensation for the loss resulted to claimant due to injury and resultant disability. In my opinion, a sum of Rs.25,000/- over and above awarded to the claimant would meet the ends of justice. 9. Accordingly, the appeal succeeds and is allowed in part. The impugned award is modified to the extent that the award will be for Rs.50,000/- in all and it will be jointly and severally against all the three non-applicants, i.e., driver, owner and Insurance Company. All other findings will remain as they are. The enhanced compensation awarded by this Court will carry interest at the same rate which have been awarded to the claimant in the impugned award. 10. No costs.