Judgment:
D.M. Dharmadhikari, J.
1. The appeal is by the two appellants, the owner of the car and the insurance company in relation to car No. CPC 5666 involved in the accident which took place on 10.10.1980 with scooter No. MPP 9090 of the claimant-respondent No. 1.
2. The case of the claimant before the Claims Tribunal, claiming compensation for injury sustained by him due to the fracture of his hip bone, is that the accident took place because of the negligent driving by the driver of the car who was said to have taken a sudden turn resulting in collision of the scooter on which respondent No. 1 was riding and proceeding in the same direction behind the car but at a reasonable distance.
3. The appellants being the owner of the car and the insurance company assail the award of the Claims Tribunal, Bhopal, dated 26.7.1984, both on merits as also on the quantum of compensation.
4. The learned counsel appearing for the appellants on merits submitted that the accident was caused due to the sole negligence on the part of the claimant who was riding the scooter and was proceeding just behind the car in the same direction. The learned counsel, in the alternative, submitted that the claimant who was riding the scooter just behind the car was in any case guilty of contributory negligence, which should have been duly apportioned in awarding the compensation. We have gone through the relevant portion of the testimony of the driver of the car and that of the claimant. In our opinion, even accepting entirely the version of the accident as narrated by the claimant, as a rider of the scooter who was proceeding just behind the car in the same direction some degree of care should have been exercised by him. He could have avoided the collision had he maintained a reasonable distance from the car going ahead of him. It was, therefore, a case of contributory negligence on the part of the claimant, who was riding the scooter. Looking to the version of the parties and the manner in which the accident took place, we are of the opinion that the negligence has to be apportioned 50: 50 on the driver of the car and the claimant as the rider of the scooter. The learned Judge of the Claims Tribunal has awarded a sum of Rs. 10,000/- as general damages. In view of our finding that the claimant was also responsible for the contributory negligence, the amount of compensation has to be proportionately reduced by 50 per cent. The claimant was, therefore, not entitled to more than Rs. 5,000/- under the head general damages.
5. The learned counsel for the appellants then assailed the grant of special damages under various heads and criticised the award under those heads as arbitrary and baseless. A sum of Rs. 100/- has been allowed towards conveyance charges for getting the medicines. Prima facie in the absence of any evidence that a sum of Rs. 100/- was required as transport charges for purchase of medicines, the same claim could not have been awarded.
6. A sum of Rs. 1,500/- has been awarded towards special diet. We find no justification for this award as in any case even without the accident the same diet expenses would have been incurred by the claimant even by leading a normal life. There was nothing to show that any extra expenses have been incurred towards diet during the period the claimant was hospitalised. Similarly, there was absolutely no justification to grant a sum of Rs. 900/- for the services rendered by the wife of the claimant. The Tribunal has in its award in para 27 stated that there was no proof of engagement of any servant for the household work because the wife was busy in the hospital. Having held so, there could be no award of compensation for the services rendered by the wife which she was rendering as a member of the family. The award of Rs. 900/-, therefore, under that head has to be set aside. So far as the amount awarded under other heads is concerned, no interference is called for.
7. Consequently the appeal succeeds in part. The general damages in the sum of Rs. 10,000/- are reduced to Rs. 5,000/-. The compensation awarded at Rs. 100/- as conveyance charges for getting medicines, Rs. 1,500/- for special diet and Rs. 900/- for services rendered by the wife are set aside. The total amount of compensation is thus reduced by Rs. 7,500/-. It is, therefore, held that the claimant is entitled only to total compensation of Rs. 5,900/-. Since the whole amount of compensation has already been paid by the appellant company to the claimant-respondent No. 1, the sum of Rs. 7,500/- is liable to be recovered from the claimant. For that purpose the appellants may approach the Claims Tribunal by way of restitution proceedings. In view of the partial success of this appeal, we leave the parties to bear their own costs of this appeal. The cross-objection filed by respondent No. 1 is hereby rejected.