The assessment of permanent disability and future prospects, along with contributory negligence, influenced the court's decision in enhancing the compensation amount.

JUDGMENT

Devendra Kachhawaha, J. - The instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant-claimant against the judgment and award dated 18.10.2012 passed by the learned Judge, Motor Accident Claims Tribunal, Jaitaran, District Pali in Claim Case No. 18/2009 titled as Sikander Shah Vs. Kanni Ram & Ors. whereby, the learned Tribunal has awarded a sum of Rs.43,620/- as compensation, hence, this appeal has been filed for enhancement of compensation amount.

2. Briefly put the facts of the case giving rise to this appeal are that on the fateful day of 17.06.2004 at around 2:00 pm, the appellant-claimant boarded the bus bearing registration No. RJ22-P-0575 scheduled for Pali to Ajmer, the claimant by taking the ticket for Barr, started his journey; then, the said bus, when reached near the Railway crossing situated at Pali boundary, the non-applicant No.1 by driving the bus rashly and negligently has made a cut and as a result, the claimant s left hand came out from window and hit by the gate of a vehicle standing on that side of the road; as a result of the said accidental hitting, the claimant sustained serious injuries and the left elbow was fractured for which, he was taken to hospital at Pali and Bilara, where he was treated for the said injuries; the First Information Report No. 582/2004 was chalked out in regard to the said accident and the case was registered for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code; the Police, after investigation, filed FR but the learned Trial Court has taken cognizance for the aforesaid offences against the non-applicant No.1 and registered the case.

3. Despite service of notice upon the non-applicant No.1, he did not appear before the learned Tribunal whereupon, order was passed for ex-parte proceedings. By submitting written statement, the non-applicants No. 2 and 3 alleged that the accident was not occurred due to the mistake of the non-applicant No.1; that the non-applicant No.1 had a valid license/permit to drive the vehicle; that the accident was occurred due to negligence of the claimant himself; that the claimant had made an exaggerated claim on the basis of his age and income which is liable to be not granted; and lastly, the non-applicants No. 2 and 3 prayed for rejection of the claim petition.

4. On the basis of the pleadings of the parties and after hearing learned counsel for both the sides, the learned Tribunal has framed as many as five issues which are reproduced here as under:-

5. In support of the claim petition, on behalf of the claimant, his oral statement was recorded as AW-1 and the statement of his father was recorded as AW-2 and in the documentary evidence, exhibits 1 to 34 have been produced and exhibited.

6. No oral evidence and documentary evidence has been produced on behalf of the non-applicants.

7. The Tribunal heard the final arguments and proceeded to decide the case by determining the issues so framed, as referred above.

8. While determining issue No.1 regarding liability of the accident, the Tribunal had proceeded to decide this issue in the manner that the claimant was held responsible to the extent of 40% for the accident in question and this issue was partly allowed in favour of the claimant. While determining issue No.2 regarding plying of the bus by non-applicant No.1 for the benefit of nonapplicant No.2, the learned Tribunal decided this issue in favour of the claimant, as the claimant was able to prove this issue. While determining issue Nos. 3 & 4 regarding quantum of compensation and absolving the non-applicant-Insurer from its liability to pay the compensation, the learned Tribunal had proceeded to decide these issues in favour of the claimant and finally made the award by allowing compensation to the tune of Rs.43,620/- in favour of the claimant, after deducting 40% of the amount from the total compensation amount of Rs. 72,700/-.

9. For ready reference, the order dated 18.10.2012