JUDGMENT :

GOVERDHAN BARDHAR, J.

Challenge in the present misc. appeal filed by the claimant/appellant under section 173 of the Motor Vehicle Act, 1988 (for short ‘the Act of 1988’) has been made to the Judgment and Award dated 22.02.2010 passed by the Court of Addl. District Judge (Fast Track) No. 07, Jaipur City, Jaipur (for short ‘the Claims Tribunal), whereby the Claims Tribunal in total awarded Rs. 3,50,000/- as compensation along-with interest @ 6% per annum to the claimant/appellant.

2. Facts of the case in nutshell are that the claimant/appellant filed a claim petition before the Claims Tribunal mainly mentioning therein that when the claimant was riding on his motor cycle, suddenly driver of offending vehicle Gypsy NO. DL-2C-3512 drove its vehicle rashly and negligently and hit the claimant appellant, as a result of which he (claimant/appellant) sustained serious injuries on his body. At the time of alleged accident he was 30 years of age and was doing the job of cutting and polishing jewelery and from that he used to earn RS. 6500/- p.m.

3. On behalf of non-claimant/respondent No. 1, Vakalatnama was filed but no reply was submitted on his behalf. Ex-parte proceeding was initiated against non-claimant/respondent No. 2. Non-claimant/respondent No. 3-Insurance Company filed written statement of denial mainly mentioning therein that the driver of the offending vehicle was not having valid and effective driving licence at the time of alleged accident and also the claimant/appellant was under the influence of liquor while riding the motor cycle. Hence, the claimant/appellant himself was negligent for causing the incident.

4. On the basis of pleadings of both the parties, the Claims Tribunal framed five issues. The claimant/appellant in support of the claim petition adduced oral and documentary evidence but neither any oral nor any documentary evidence was produced by the non-claimants/respondents.

5. The Claims Tribunal regarding injuries sustained by the claimant/appellant in the alleged accident came to the conclusion that the Medical Board Certificate issued by the SMS Medical College & Hospital, Jaipur (Ex.17) reveals that the claimant/appellant sustained 18-20% permanent disability and taking note of the age of the claimant/appellant, the Claims Tribunal applied multiplier of 18 and awarded compensation to the tune of Rs. 2,26,800/- in addition to the amount of compensation awarded by the Claims Tribunal in other heads. Thus, the Claims Tribunal in lump-sum awarded total Rs. 3,50,000/- as compensation to the claimant/appellant.

6. So far as amount of quantum of compensation is concerned, counsel appearing for the respective parties do not challenge the impugned award but the counsel appearing for the claimant/- appellant challenges the finding of the Claims Tribunal regarding contributory negligence. Learned counsel submitted that there is no evidence on record which establish the contributory negligence. Neither the Claims Tribunal has discussed the site map of the accident nor any independent witness of the accident has been produced before the Claims Tribunal and the finding of contributory negligence is based on surmises and conjectures. Thus, the finding of contributory negligence may be set aside.

7. On perusal of the record, it reveals that neither the Claims Tribunal has discussed the site map of the accident nor any independent witness of the accident has been produced before the Claims Tribunal. The respondent No. 3-Insurance Company failed to discharge its burden regarding objection of contributory negligence. Thus, the finding of the Claims Tribunal to the extent of contributory negligence is set aside. The Claims Tribunal wrongly deducted Rs. 50% amount of compensation i.e. Rs. 1,75,000/- from the total amount of compensation. Thus, the claimant/appellant is entitled to get Rs. 1,75,000/- as compensation in addition to the awarded amount of compensation along-with interest @ 6% p.a. from the date of filing of the