THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE PRL. SENIOR CIVIL JUDGE AND ADDL. MACT GOKAK AT GOKAK IN MVC NO.41/2014 DATED 28.08.2015 AND AWARD THE COMPENSATION AS PRAYED BY FASTENING THE LIABILITY ON THE 2ND RESPONDENT IN THE INTEREST OF JUSTICE AND EQUITY.

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI

ORAL JUDGMENT

Challenging judgment and award dated 28.08.2015 passed by Principal Senior Civil Judge and Additional MACT, Gokak, For short, ‘Tribunal’ in MVC no.41/2014, this appeal is filed.

Smt.Pranjali G. Godakhindi, learned counsel appearing for Sri Girish A. Yadawad, advocate for appellant submits that appeal was by claimant for enhancement of compensation and finding of Tribunal holding 50% negligence against claimant. It was submitted at 09.30 a.m. on 11.12.2013, when claimant, a minor aged 15 years, was riding his bicycle on Gokak Khanagaon road, rider of Motorcycle no.KA-49/Q-3243 rode it in rash and negligent manner and dashed against bicycle causing accident. Due to same, claimant sustained fracture of right leg, fracture of skull apart from other grievous injuries and despite treatment at Ganga Surgical and Fracture Clinic, he did not recover fully and sustained permanent physical disability. Claiming compensation for same, he filed claim petition under Section 166 of Motor Vehicles Act, 1923, For short, ‘MV Act’ against owner and insurer of motorcycle.

On appearance, claim petition was opposed on all grounds. While respondent no.1 stated that rider was having valid and effective driving license and vehicle was insured with insurer and denied negligence, insurer opposed claim petition denying occurrence of accident and claimant sustaining injuries therein and apart from alleging violation of terms and conditions of insurance policy by insured.

Based on pleadings, Tribunal framed issues and recorded evidence. Guardian of claimant along with two others including Dr.MG Umarani deposed as PW1 to PW3 and got marked Exs.P1 to P46. Respondents did not lead any evidence.

On consideration, Tribunal held accident occurred due to rash and negligent riding of motorcycle by its rider to extent of 50% and claimant was entitled for compensation of Rs.5,12,900/- but entitled for 50% of same at Rs.2,56,450/- with interest at rate of 9% per annum. Dissatisfied with same, claimant was in appeal.

It was submitted, claimant aged 14 years, working as coolie sustained fracture of right femur and fracture of right and left temporal bones assessed by PW3 Dr.MG Umarani to have resulted in disability of 30% to right lower limb and 20% due to head injury as per Ex.P42. Since, disability was 50%, consideration of loss of earning capacity at 15% by tribunal was on lower side and sought interference.

It was further submitted tribunal erred in assigning contributory negligence to extent of 50% on claimant. It was submitted though as per Ex.P3 accident occurred on Gokak-Benchinamaradi road running North to South and rider of bicycle was on his right side, apportionment of negligence to extent of 50% each would be excessive. On said grounds sought for allowing appeal.

On other hand, Smt.Anusha Sangami learned counsel for respondent no.2 insurer, opposed appeal. It was submitted, on appreciation entire material on record tribunal had arrived at conclusion about contributory negligence of claimant at 50%. It was submitted, assessment of compensation by tribunal was in terms of decision in case of Master Mallikarjun v. Divisional Manager, National Insurance Company Limited and Anr., reported in AIR 2014 SC 736, and any scope for enhancement was offset by fact that tribunal had awarded ₹40,000/- towards ‘pain and suffering’ which would be unsustainable. On said ground sought for dismissal.

Heard learned counsel, perused impug