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2012 DIGILAW 711 (MP)

JAGDISH v. ABDUL SHAKIL

2012-07-13

N.K.MODY

body2012
JUDGMENT : N.K. Mody, J. Being aggrieved by an award dated 12.10.2011 passed by Second Additional M.A.C.T., Ratlam in Claim Case No. 37 of 2011, whereby the claim petition filed by appellant was allowed and compensation was assessed at Rs. 1,50,000 out of which 25 per cent amount was deducted on account of contributory negligence and Rs. 1.12,500 was awarded, the present appeal has been filed. Short facts of the case are that the appellant filed a claim petition alleging that on 13.9.2009, appellant was going on motorbike, at that time tractor bearing registration No. MP 43-AA 3092 which was being driven by respondent No. 1 rashly and negligently, owned by respondent No. 2 and insured with the respondent No. 3, dashed the appellant as a result appellant sustained fracture of tibia and fibula in right leg. It was prayed that claim petition be allowed and compensation be awarded. The claim petition was contested by the respondent No. 3 on various grounds including on the ground that the appellant was equally liable for the accident. It was prayed that claim petition be dismissed. 2. After framing of issues and recording of evidence learned Tribunal assessed the compensation of Rs. 1,50,000 break-up of which is as under : Out of aforesaid amount, 25 per cent was deducted on account of contributory negligence, against which present appeal has been filed. 3. Learned counsel for the appellant submits that the appellant was hospitalised for a period of 12 days at Baroda, as the appellant sustained fracture of tibia and fibula where he was operated and rod was inserted. It is submitted that looking to the injuries amount awarded is on lower side. It is submitted that on findings regarding contributory negligence criminal case was registered against respondent No. 1. Apart from this respondent No. 1 did not turn up in the witness-box, therefore, there was no justification on the part of the learned Tribunal to hold the appellant liable to the extent of 25 per cent. It is submitted that appeal be allowed, amount be enhanced and findings regarding contributory negligence be set aside. 4. Learned counsel for the respondent No. 3 submits that the spot map was produced by appellant himself which indicates that the accident occurred on the middle of the road. It is submitted that appeal be allowed, amount be enhanced and findings regarding contributory negligence be set aside. 4. Learned counsel for the respondent No. 3 submits that the spot map was produced by appellant himself which indicates that the accident occurred on the middle of the road. It is submitted that in the facts and circumstances of the case learned Tribunal has rightly held the appellant liable to the extent of 25 per cent. It is submitted that amount awarded is justifiable. It is submitted that appeal be dismissed. 5. Since the respondent No. 1 remained absent and criminal case was registered against him, therefore, this court is of the view that there was no justification on the part of the learned Tribunal in holding the appellant liable to the extent 25 per cent for the accident only on the basis of spot map. So far as amount is concerned, looking to the injuries sustained by the appellant amount awarded is on lower side which deserves to be enhanced. Appellant is entitled for the following amount: 6. Thus, the appellant is entitled for Rs. 2,50,000 instead of Rs. 1,50,000. The enhanced amount shall carry interest at the rate of 8 per cent per annum 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 per cent of the said amount on long-term fixed deposit in the name of appellant in the nearest nationalised 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 her needs. However, on an application by the appellant this condition could be modified by the learned Tribunal in exceptional circumstances. With the aforesaid modification, the appeal stands disposed of.