JUDGMENT :

SANDEEP N. BHATT, J.

1. The present First Appeal is filed by the present appellant-original claimant, being aggrieved by and dissatisfied with the judgment and award dated 31.07.2009 passed by the Motor Accident Claims Tribunal (Main), Panchmahals at Godhra in Motor Accident Claims Petition No. 1487 of 1992, by which, the Tribunal has awarded compensation of Rs. 33,789/- with 9% interest per annum to the claimant, from the date of presentation of petition upto 31.12.2000 and thereafter 7.5% p.a. interest until its realisation. Therefore, the present appeal is for enhancement of the compensation to the tune of Rs. 1,50,000/-.

2. Brief facts of the present case are that, on 15.06.1992, the appellant-claimant was going on the motorcycle as pillion rider for his work place and his friend viz. Rakesh Bhatt was driving the motorcycle slowly and carefully, one tempo bearing registration No. GJ-7-T-9930 came with full speed with rash and negligent manner near Village: Ganavi and dashed with the motorcycle. As a result, the appellant sustained serious injuries. He was initially taken to the hospital at Godhra and thereafter at Vadodara where he was treated as indoor patient. Permanent disability has been caused to him. The appellant lodged complaint for the same before the Godhra Taluka Police Station being C.R.I. No. 178 of 1992. The appellant has therefore filed a claim petition before the Tribunal. The Tribunal has issued notices to the respondents-driver, owner and insurance company of the tempo. The Insurance Company has denied the facts of the case and requested to dismiss the claim petition. The Tribunal has framed the issues and after taking into consideration all the evidence-documentary as well as oral and after considering the submissions made by the rival parties, partly allowed the claim petition and awarded compensation as stated hereinabove. Hence, the present appeal before this Court by the appellant-original claimant for enhancement.

3.1 Learned advocate Mr. Kharadi for the appellant-claimant has submitted that the claimant was pillion rider on the motorcycle which dashed with the Tempo. The Tribunal has held that the driver of the motorcycle is 40% negligent for the accident. Therefore, the contributory negligence is also considered to the extent 40% which is erroneous and perverse. He has submitted that the Tribunal has also held in merely considering the fact that the claimant has not impleaded the owner and insurance company of the motorcycle and therefore also, the negligence should be attributed to the claimant which, in his submissions, is totally erroneous and illegal in view of the decision of Khenyei vs. New Indian Assurance Co. Ltd. (2015) 9 SCC 273. He has submitted that the claimant being a third party as a pillion rider, it is a case of composite negligence and not contributory negligent and therefore, the claimant can claim an amount of compensation from any of the tortfeasors. Therefore, the Tribunal has committed an error in coming to the finding that the contributory negligence of 40% should be of pillion rider i.e. the claimant.

3.2 Further, on the aspect of quantum, learned advocate for the appellant has submitted that the claimant has shown his monthly income in the claim petition and the same is proved by the oral evidence of the Contractor - Madhavsinh Kalyansinh Solanki at Exh.43 with whom he was working and who was supported the claim of the claimant that the claimant was earning Rs. 2,500/- p.m. towards salary in the year 1992 (the accident was occurred on 15.06.1992), however the Tribunal has, without giving any cogent and convincing reasons, considered Rs. 800/- as monthly income of the applicant. The Tribunal has added 50% towards prospective income and therefore, the monthly income was worked out to Rs. 1,200/- which is erroneous and as per the say of the workman, Rs. 2,500/- per month should be considered as monthly income and 40% should be added in view of the decision reported in