IMPORTANT POINT
The main legal point established in the judgment is the attribution of contributory negligence and functional disability, leading to the determination of compensation for the claimant.

JUDGMENT :

GITA GOPI, J.

1. The challenge is given by the injured claimant to the judgment dated 31.01.2008 passed by Motor Accident Claims Tribunal, Kheda at Nadiyad in MACP No. 48 of 1995.

2. Learned advocate Mr. Vishrut Jani for Advocate Mr. R.C. Jani for the appellant submitted that 10% contributory negligence has been erroneously concluded, which is contrary to the evidence on record. Further stated that the income proof was on record, and the learned Tribunal has considered that same, however, has made deduction from the income, which is not permissible, and submitted that only the tax would be deducted, and, thereafter the income has to be assessed accordingly.

2.1 Advocate Mr. Jani submitted that injury suffered by the claimant had forced him to retire from the job as clerk-cum-cashier from the Bank, and the fact of early retirement has been proved by certificate, Exh.58, which was issued by the Branch Manager of the Bank, and that fact has been corroborated by way of deposition, Exh.59, of the Branch Manager. Hence, Advocate Mr. Jani submitted that after the accident his mental health was not stable, which could not allow him to continue in job, and, thus had to resign; thus, urged to consider the disability as 100%.

3. Per contra, learned advocate Mr. Nanavati submitted that the fact of resigning from job owing to the mental health condition of the claimant on account of the accident, could not be proved, and, thus stated that it was only because of inquiry pending against him that he was constrained to resign from the service, which was accepted on 08.12.1995 and, thus, would not entitle him to claim 100% functional disability.

4. The facts, as could be culled out, suggest that on 14.07.1994 at 8:20 night hours, the applicant serving in Kheda District Madhayasatha Co-operative Bank, Balasinor, was proceeding towards Sangot from Balasinor on his Motorcycle No. GJG-2054. He reached towards canal near I.T.I. College on Savaliya Road driving his motorcycle on the correct side of the road. At that time, it is stated that, Tanker No. GJ-2T- 8735, owned by opponent no. 2 insured with opponent no. 3, came in full speed, in rash and negligent manner from the wrong side and dashed the motorcycle; thereby the present claimant as motorcyclist was thrown down and sustained serious injuries on the head and immediately was taken to Balasinor Hospital, and thereafter shifted to Ahmedabad Hospital.

4.1 The Tribunal has considered the fact that the accident had occurred on pakka tar road, which is 22 ft. in width with 3 ft. border on the side of the road. The bullet, on which the claimant was travelling, was facing north at 20 ft. away from the canal. The front wheel, which got separated, was bend. Dicky, head light, mudguard of the bullet were broken. The damage to the bullet was found to be of Rs. 12,000/-. While according to the panchnama, the Tribunal observed that on the northern side of the bullet at about 30 ft. away on the northern side of the canal on left hand side, the Tanker was found lying in the drainage, and the rear side of the Tanker was on the kachha margin area of the road, with the front in the drainage. It was noted that the Tanker was facing toward east and the front portion of the Tanker was found to be bend. The wheel marks by applying brakes was found upto 5 ft. at length from the rear side of the Tanker.

4.2 The FIR was given by one Nileshkumar Shantilal Suthar, who was a pillion rider to the bullet, who had joined that claimant while was on the road, after filling the petrol from petrolpump, they were heading towards Balasinor and according to the complainant, the Tanker dashed them and caused injuries, and he stated that the Tanker had gone on the road and landed in the gutter on the side of the road. As per his complaint, the driver left his vehicle and fled away from the place of incident.

4.3 The complainant, who had given the complaint, was examined at Exh.29. His affidavit in examination-in-chief, further stat