Court modified the Tribunal's finding on contributory negligence, attributing 100% liability to the motorcyclist and enhancing the total compensation awarded to the claimant.

JUDGMENT :

C.M. POONACHA, J.

1. The present appeal is filed by the claimant calling in question the judgment and award dated 30.10.2013 passed by the Motor Accident Claims Tribunal, Court of Small Causes, Bangalore (SCCH-9),, hereinafter referred to as 'Tribunal' in MVC No.7570/2011, whereunder the Tribunal has partly allowed the claim petition and awarded a total compensation of Rs. 62,050/- together with interest at 6% p.a.

2. The appellant/claimant impugns the finding of the Tribunal of contributory negligence to the extent of 20% as also seeks for enhancement of the quantum of compensation.

3. It is the case of the claimant that on 11.9.2011 at about 2.00 p.m., when she was walking on the 7^th Cross, 4^th Main, Chamarajpet, Bengaluru, the insured scooter being driven in a rash and negligent manner came and hit her, causing the accident in question.

4. The Tribunal noticing the sketch - Ex.P2 and noticing the fact that the said sketch indicated that the accident occurred four feet from the footpath towards the eastern side and that the accident occurred when the claimant was crossing the road, recorded a finding that the claimant was negligent to the extent of 20% in causing the accident and the rider of the insured motor cycle was negligent to the extent of 80%.

5. It is pertinent to note here that Ex.P2 denotes that the road is 35 feet wide. Ex.P2 further indicates that the rider of the motor cycle proceeded towards his left side and the accident occurred 4 feet from the edge of the road. There is no material on record to justify as to why the rider of the motor cycle had to come to the extreme left hand side of the road when nearly more than 10 feet of the road was available on his side of the road for the rider of the motor cycle to proceed further. The Tribunal has rightly held that a greater degree of care is vested on the rider of the motor cycle. There is no explanation as to what prevented the rider of the motor cycle from taking adequate steps to avoid the accident. In view of the same, the finding of the Tribunal attributing 20% contributory negligence on the part of the claimant is erroneous. The rider of the motor cycle was entirely negligent in causing the accident in question. The finding of negligence of the Tribunal is accordingly modified.

6. The claimant was aged 55 years at the time of the accident. The claimant was a Tailor and also stated to have been doing saree business. Having regard to the fact that no documents have been produced to demonstrate the income of the claimant, keeping in mind the date of the accident, the notional income of the claimant is assessed as Rs. 6,500/- pm.

7. The wound certificate - Ex.P6, discharge summary - Ex.P11, the inpatient case sheet - Ex.P12, out patient card - Ex.P13 indicate that the claimant sustained fracture of right ankle. Two doctors have been examined as PWs.3 and 4. However, the Tribunal has not assessed the disability on the ground that the doctors were not the treated doctors. The claimant was treated as an inpatient for 3 days, wherein the fracture was surgically treated.

8. The occurrence of the accident, the injuries sustained as well as the treatment are undisputed and forthcoming from the material on record.

9. Keeping in mind the aforementioned, the compensation is re-assessed as follows:

i. Having regard to the nature of injuries sustained and the period of treatment, the compensation towards pain and suffering is reassessed as Rs. 40,000/- as against Rs. 15,000/- awarded by the Tribunal;

ii. The claimant was treated as an inpatient for three days. However, the claimant having sustained fracture to