Point of Law : Rider of motorcycle is also responsible for the accident. But attributing 60% of contributory negligence to the rider of the motorcycle, especially, in the absence of any oral evidence placed by the Insurance Company, in the considered opinion of this Court is on the higher side and therefore attributing contributory negligence to an extent of 50% to the rider of the motorcycle would meet the ends of justice

JUDGMENT :

Though this appeal is listed for admission today, with the consent of both the parties, it is taken up for final disposal.

2. Claimant is in appeal seeking enhancement of compensation in respect of a road traffic accident which is the subject matter of MVC No.15/2009 on the file of the Fast Track Court and Additional MACT, Gadag (hereinafter referred to as “the Tribunal” for short) and challenging the validity of the judgment and award passed in the said case dated 28.02.2011.

3. The brief facts, which are necessary for disposal of the appeal are as under:

A claim petition came to be filed under Section 166 of Motor Vehicles Act contending that on 19.11.2008 at about 4.30 p.m. near Asundi cross on Gadag-Hubballi road, when the claimant was returning on a motorcycle bearing No.KA-35/Q-1661 as a pillion rider from Hulkoti Engineering College to Gadag, at that juncture a maxi cab bearing No.KA-26/7000 came in a rash and negligent manner and dashed against the motorcycle resulting in fall of the rider and the pillion rider and the pillion rider has sustained grievous injuries and was shifted to District Hospital, Gadag and he has been treated as inpatient and had to spent huge sums of money and thus sought for awarding suitable compensation.

4. The claim petition was contested by the Insurance Company by denying the claim petition averments in toto. The Tribunal framed necessary issues after recording the oral and documentary evidence on record. Taking note of the evidence of the doctor who is examined as PW.2 and the disability certificate and wound certificate marked at Exs.P.9 and 6, respectively, the Tribunal allowed the claim petition and awarded a sum of Rs.3,51,422/. On account of contributory negligence, 60% of contributory negligence was attributed to the rider of the motorcycle and held that the claimant is entitled for 40% of the compensation amount.

5. Sri.S.M.Kalawad, learned counsel for the appellant claimant vehemently contended that the approach of the Tribunal in attributing 60% of contributory negligence to the rider of the motorcycle is incorrect and therefore sought for modification of the finding in that regard. He further contended that on quantum of compensation, the Tribunal has not taken into consideration the relevant material facts and awarded a meager compensation and sought for reasonable enhancement of compensation.

6. Per contra, Sri.S.S.Koliwad, learned counsel for the Insurance Company contended that having regard to the nature of the accident and the charge sheet papers filed by the police, it clearly indicate that the accident has occurred duly on the negligence of the rider of the motorcycle and therefore attributing 60% contributory negligence to the rider of the motorcycle is correct. It is further contended that having regard to the nature of injuries sustained by the pillion rider, awarding compensation of Rs.3,51,422/is also justified and sought for dismissal of the appeal.

7. On reconsideration of the material on record, there is some force in the argument put forth by Sri.S.M.Kalwad, learned counsel for the appellant. No doubt, charge sheet papers and other documents clearly indicate that the rider of the motorcycle is also responsible for the accident. But attributing 60% of contributory negligence to the rider of the motorcycle, especially, in the absence of any oral evidence placed by the Insurance Company, in the considered opinion of this Court is on the higher side and therefore attributing contributory negligence to an extent of 50% to the rider of the motorcycle would meet the ends of justice.

8. Further, instead of enhancing the compensation on each heads, having regard to the nature of injuries sustained by the claimant, it is just and reasonable in this case to enhance the compensation globally in a sum of Rs.1,00,000/. Accordingly, the compensation that is payable to the claimant is quantified in a sum of Rs.4,51,422/, out of which 50% is to be paid by the Insurance