Full Judgment
(1) M.A. No.5612/2008 HIGH COURT OF M. P. JUDICATURE AT JABALPUR Single Bench : Hon'ble Shri Justice A.K. Shrivastava Misc. Appeal No.5612 / 2008 Appellant Ramu S/o. Dhimra Pawar, Caste Mehra, Occupation Govt. Service (Headmaster), Primary School, R/o. Village Jean, P.S. Chicholi, District Betul (M.P.) Vs. Respondents:
1. Gulabrao S/o. Narayan Sable, Occupation Driver, R/o. Gothana, P.S. Tehsil and District Betul (M.P.) 2. M/s. Natwar Transport Company, through Pukhraj S/o. Narmada Prasad Agrawal, Gorebazar Kamthi, Nagpur, At present Azad Ward Tikari, Betul (M.P.) 3. The Branch Manager, Oriental Insurance Co. Ltd. 5th Line Itarsi, District Hoshangabad (M.P.) ________________________________________________________ Shri A.D.Mishra, Advocate for appellant. Shri Subodh Pandey, Advocate for respondent no.1. Shri Rakesh Jain and Shri Rohit Jain, Advocates for respondent no.3. ________________________________________________________ JUDGMENT
(Delivered on this 04th of October, 2012) (2) M.A. No.5612/2008 This is an appeal under Section 166 of Motor Vehicles Act, 1988 filed by the claimant/appellant.
2. No exhaustive statements of fact are required to be nar- rated for the purpose of disposal of this appeal because the only question in controversy is whether the appellant/claimant was rightly held to be negligent and learned Tribunal has rightly held that there was a contributory negligence. The finding of learned Tribunal is that because the injured who was a pillion rider upon the motorcycle was keeping a gas cylinder in his lap, therefore, his legs were widen so that comfortably he may keep the gas cylinder. On bare perusal of the testimony of Dr. N.D. Chaurasiya (AW2) it is gathered that the right Patela of injured was fractured.
3. I have gone through the testimony of the injured. Nowhere it has been stated or admitted by him during the cross-ex- amination that in order to keep the gas cylinder comfortably he widened his legs. There was not even a suggestion in this regard during the course of cross-examination. The bus driver Gulabrao was examined as NAW1, who has also not so stated. In this view of the matter, learned Tribunal without any evidence has held that present case is of contributory negligence and the appellant/claimant was also equally responsible for the accident. According to me, since there is no evidence on record in this regard that finding cannot be allowed to remain stand. (3) M.A. No.5612/2008 4. Thus, according to me, learned Tribunal has wrongly de- ducted a sum of Rs.50,164/- from the total compensation awarded to the appellant/claimant holding him to be contributory negligent.
5. Resultantly, this appeal succeeds and is hereby allowed and that part of the impugned award is set aside by which it has been held that present appellant/claimant was also contributory neg- ligent in the accident. Thus, by adding Rs.50,164/-, which was de- ducted by learned Tribunal holding the appellant to be contributory negligent, in the awarded amount of Rs.88,344/-, the appellant is en- titled to Rs.1,38,508/- (Rupees One Lac, Thirty-eight Thousand, Five Hundred and Eight) alongwith interest as awarded by learned Tribunal. The claimant/appellant shall be free to realize this amount from the respondents jointly and severally.
6. The appeal is allowed with cost. Counsel fee Rs.1,000/- if precertified. (A.K. Shrivastava) Judge 04/10/2012 SS