Hon'ble GUPTA, J.—These three appeals arise out of common judgment of the learned Motor Accident Claims Tribunal, Rajsamand dt. 30.11.1995 accepting three claim petitions, and making an award of Rs. 51,600/- in Claim Petition No. 274 filed by the claimant Fateh Lal while awarding a sum of Rs. 49,000/- in each of the Claim Petition No. 275 and 276 filed on behalf of Manoj and Lokesh respectively. Three claim petitions were consolidated and evidence was recorded in Claim Case No. 274.

2. The necessary facts are that on 15.3.1990 the three claimants being father and sons; Fateh Lal being father and other two being minor sons aged 8 years and 5 years respectively were traveling on motor cycle No. RRY-7745 from Molela to Khamnor. On way delinquent truck no. RJY-4993 driven by Arjun Lal was driven negligently, and hit against motor cycle causing injuries to all the three claimants. On these facts claiming permanent disablement to have been suffered by each of the three claimants different amounts have been claimed under different heads. The owner and driver remained exparte and the insurer only filed reply pleading ignorance about factual aspect. However, it was pleaded that Fateh Lal who was driving the motor cycle did not know to drive motor cycle, nor he was having valid driving licence. It was also pleaded that looking to the truck coming from opposite side he got disturbed, and could not control the motor cycle, and himself fell down. Alternative plea of contributory negligence was also taken.

3. The learned Tribunal found that the place of accident was a single road, obviously therefore, truck required larger space on the road, and when two vehicles are coming from opposite direction each driver is expected to leave enough space for the other one to pass. With this it was considered that Fateh Lal was holding accelerator from his right hand, and that hand hit the truck which shows that if each of the drivers would have left 3 to 6 inches more space then the accident would not have occurred. With this it was considered that there is no evidence on record to show that enough space was not available to the motor cyclist towards further left, motor cycle driver was also negligent to the extent of 20% and the truck driver was also held negligent to the extent of 80%. Then, deciding issue no. 2 compensation to which each of the claimant was entitled has been computed, and out of that 20% deduction has been made in each of the three claim petitions for contributory negligence, and then consolidated amount of Rs. 9600/- has been awarded as interest in claim no. 274 while consolidated amount of interest in the sum of Rs. 8600/- has been awarded in the other two claim petitions, and thus totaling up the amount, the award has been made. It is a different story that according to the calculation of the learned Tribunal, the claimant in Claim No. 274 was found entitled to a total amount of Rs. 52,000/-, still in the operative part award has been passed for Rs. 51,600/-.

4. Assailing the impugned awards it is contended by the learned counsel for the appellant that the finding of the learned Tribunal on the question of contributory negligence is not sustainable, as from a look at Ex. 2 the site plan, it is more than clear that there was no further space available for the claimant to take the motor cycle to further left, rather since there was a curve on the road the truck driver did not mind the motor cyclist, and hit him. At least to substantiate the plea of contributory negligence, the truck driver could have come in the witness box to depose about the fact situation available on the site, while no evidence in this regard has been led by any of the defendants. Even to the claimant P.W. 1 it has not been suggested in cross examination that there was any further space available towards the left to take the motor cycle in further left, while P.W.1 had clearly deposed that he had already taken the motor cycle in the Kacha, and therefore, it cannot

Click Here to Read the rest of this document