The court found that attribution of 40% contributory negligence to the claimant was erroneous, as the charge-sheet was filed only against the offending vehicle's driver.

JUDGMENT :

SHIVASHANKAR AMARANNAVAR, J.

1. This appeal is filed by the claimant/appellant for modifying the judgment and award dated 11.06.2018, passed in MVC No.558/2015, by the Principal Senior Civil Judge and CJM and Additional MACT, Bidar and for enhancement of compensation.

2. Brief facts leading to filing of the claim petition for compensation are as under:

That on 03.06.2015, the appellant/claimant along with his friend Dashrath were proceeding on a motorcycle bearing registration No.KA-32/EF-2200 from Bidar to Mandaknalli. The appellant/claimant, being the rider and his friend was pillion rider. At about 10-00 p.m., when they were proceeding on Kamthana road, near Kamthana bridge, the driver of the Mahindra Commander Jeep bearing registration No.KA-38/M-0352 came from Yedlapur side, in a high speed and in a rash and negligent manner and dashed against the motorcycle of the appellant/claimant. Consequently, the appellant/claimant and the pillion rider fell down and sustained grievous injuries. The appellant/claimant made a claim petition. The Tribunal has assessed compensation at Rs.7,89,700/- with interest at the rate of 6% per annum. The Tribunal held that there is contributory negligence to the extent of 40% of the claimant, who is the appellant herein and awarded only Rs.4,73,820/-, being the 60% of assessed compensation. The appellant/claimant has challenged the said finding of contributory negligence of the Tribunal and also sought enhancement of compensation as determined by the Tribunal.

3. Heard learned counsel for the appellant and learned counsel for respondent No.2/insurance company.

4. Learned counsel for the appellant would contend that the charge-sheet has been filed only against the driver of the offending vehicle and the copy of the charge-sheet is at Ex.P.3. Therefore, there cannot be any contributory negligence on the part of the appellant/claimant and to that extent, the Tribunal has committed an error. Learned counsel for the appellant further contends that the compensation awarded by the Tribunal is on the lower side.

5. Learned counsel for respondent No.2/insurance company would contend that the road on which the accident has taken place is a 30 feet wide straight road and there is no allegation that the driver of the offending vehicle came on the extreme right side and dashed against the motorcycle of the claimant and considering the same, the Tribunal has rightly fixed contributory negligence on the claimant at 40%. He further submits that there are no grounds for enhancement of compensation, as the compensation awarded is just compensation.

6. Having heard the learned counsel for the parties, this Court perused the impugned judgment and Trial Court records.

7. Ex.P.3 is the copy of the charge-sheet. The charge-sheet is filed only against the driver of the offending vehicle. Without considering the said aspect, the Tribunal has erred in fixing the contributory negligence at 40% on the appellant/claimant only on the ground that the accident has taken place on 30 feet straight road and there were no other vehicles on the road at the time of the accident. When once the charge- sheet is filed against the driver of the offending vehicle, there is no any contributory negligence on the part of the appellant/claimant. If there is any contributory negligence on the part of the appellant/claimant, the charge-sheet would have been filed against him also. Therefore, the finding of the Tribunal that the appellant has contributed negligence to the accident to the extent of 40% has no basis. Therefore, said finding requires to be set aside.

8. The claimant has produced his appointment letter and pay-slips at Exs.P.34, 30 and 31 respectively and considering the same, the Tribunal has taken his income at Rs.9,000/- per month and added 40% of the income towards future prospects. The Tribunal has also taken into consideration the disability certificate at Ex.P.27 issued by P.W.2/Doctor, who has deposed that the disability o