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Madhya Pradesh High Court · body

2012 DIGILAW 1116 (MP)

Avdhesh @ Avadh Kumar v. Sudama

2012-11-06

N.K.MODY

body2012
ORDER 1. Being aggrieved by award dated 18.3.2011, passed by MACT, Indore, in Claim Case No. 315/2010, whereby claim petition filed by the appellant was allowed and compensation of Rs. 6,60,000/- was passed out of which 30% was deducted on account of contributory negligence, and a sum of Rs. 4,62,000/- was awarded, present appeal has been filed. 2. Short facts of the case are that appellant filed a claim petition alleging that on 8.3.2009, appellant was going on his motor bike, at that time, met with an accident with a Dumper, bearing registration No. MP-09-GE-3654, which was driven by respondent No. 2 rashly and negligently, owned by respondent No. 1 and insured with respondent No. 3. It was alleged that because of the accident appellant sustained permanent disability, hence, claim petition be allowed and compensation be awarded. 3. The claim petition was contested by the respondent No. 3 on the ground that the appellant was under the influence of alcohol. It was prayed that the claim petition be dismissed. 4. After framing of issue and recording of evidence, learned tribunal assessed the compensation as Rs. 6,60,000/-, break up of which is as under:- Rs. 5,10,000/- Towards permanent disability. Rs. 1,36,000/- Towards medical expenses Rs. 5,000/- Towards pain and suffering Rs. 3,000/- Towards transport expenses Rs. 3,000/- Towards special diet Rs. 3,000/- Towards attendant expenses 5. After assessing the compensation, learned Tribunal deducted 30% on account of contributory negligence on the part of appellant himself and awarded compensation of Rs. 4,62,000/- which was awarded, against which present appeal has been filed. 6. Counsel for the appellant submits that the deduction on account of contributory negligence on the part of appellant is illegal. It is submitted that imcome was assessed by the learned Tribunal as Rs. 5,000/- per month which is on lower side and also permanent disability assessed is on lower side. It is submitted that the compensation awarded is grossly inadequate as on number of heads no amount has been awarded. Learned counsel submitted that tribunal committed error in deducting the amount of compensation assessed on account of contributory negligence. It is submitted that appeal be allowed, amount be enhanced and findings regarding contributory negligence be set aside. 7. Learned counsel for the respondent No. 3 submits that the compensation awarded is on higher side for which cross objection has been filed. It is submitted that appeal be allowed, amount be enhanced and findings regarding contributory negligence be set aside. 7. Learned counsel for the respondent No. 3 submits that the compensation awarded is on higher side for which cross objection has been filed. So far as findings regarding contributory negligence is concerned, it is submitted that findings are based on due appreciation of evidence which requires no interference. It is submitted that appeal be dismissed and cross objection be allowed and also amount awarded be reduced. 8. From perusal of the record if appears that the deduction of 30% is on account of contributory negligence only on the ground that the appellant was under the influence of Alcohal, but for this no analysis was made as per section 188 of the Motor Vehicles Act, therefore deduction of 30% on account of contributory negligence is not just and proper. Similary income assessed as Rs. 5,000/- per month is on higher side which ought to have been Rs. 4,000/- per month. The appellant is entitled for following amount:- Rs. 4,08,000/- Towards permanent disability Rs. 1,36,000/- Towards medical expenses. Rs. 5,000/- Towards pain and suffering Rs. 5,000/- Towards travelling expenses Rs. 5,000/- Towards special diet Rs. 5,000/- Towards attendant expenses Rs. 10,000/- Towards loss of income Rs. 5,74,000/- Total 9. Thus, the amount assessed of Rs. 6,60,000/- is reduced to Rs. 5,74,000/-. Thus the amount assessed is reduced to Rs. 86,000/-, The appellant shall be entitled for a sum of Rs. 5,74,000/- instead of Rs. 4,62,000/-. Thus the amount is enhanced to Rs. 1,12,000/-. The enhanced amount of Rs. 1,12,000/- shall carry interest @ 8% p.a. from the date of application. The amount awarded shall be deposited by the Insurance Company with the learned tribunal and the learned Tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant in the nearest Nationalized Bank, in the area where the appellant is residing, with the condition that the bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant, which shall be opened by the appellant from where appellant can withdraw the amount as per needs. However, on an application by the appellant this condition could be modified by the learned tribunal in exceptional circumstances, if made out by the appellant. 10. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant, which shall be opened by the appellant from where appellant can withdraw the amount as per needs. However, on an application by the appellant this condition could be modified by the learned tribunal in exceptional circumstances, if made out by the appellant. 10. With the aforesaid modification the appeal stands disposed of. No order as to costs.