M.E. PRASANNA S/O K.M. ERAPPA Vs. SRI K.R. SOMASHEKAR S/O T.S. RAMACHANDRA GOWDA AND NATIONAL INSURANCE CO. LTD.

JUDGEMENT

(1.) THE claimant is before this Court in this appeal seeking enhancement of compensation as against the sum awarded by the Tribunal and also assailing that portion of the finding of the Tribunal fastening 20% negligence on the claimant.

(2.) HEARD the learned Counsel for the parties and perused the appeal papers.

(3.) WITH regard to the negligence, the Tribunal no doubt has considered this aspect in detail, more particularly, in para -8 of the judgment. While arriving at the said conclusion, the Tribunal has taken note of the copy of FIR, the copy of the mahazar and report of the motor cycle Inspector. In addition, the charge sheet filed against the driver of the car is also taken into consideration and the said documents were marked as Exhs.P1 to 3 and 5. What is to be noticed is, in the instant case, the spot sketch is not available and therefore, the aspect relating to the negligence would have to be noticed keeping in view the mahazar which has been marked before the Tribunal. In this regard, the undisputed aspect is that the motor cycle ridden by the claimant was proceeding from the east to west direction while the car in question was proceeding from west to east. If this aspect of the matter is taken note and the mahazar is perused, the same refers to the width of the road as 32 feet and also the spot at which the motor cycle was located after the accident which was closer to the foot path on the left side. If this is kept in view and the spot is pictured, it would be seen that the car was on the right side of the road, though the motor cycle was proceeding on the left side. It is no doubt true, as contended by the learned Counsel for the Respondent/Insurance Company, that even if that is the position, there was sufficient space left on the left side of the road. In a matter of this nature, that alone cannot be held against the motor cyclist since in any event he was proceeding in an appropriate manner and merely because there was some space, the negligence cannot be fastened on the rider of the motor cycle. Hence, I am of view that the Tribunal was not justified and the finding with regard to the negligence to the extent of holding the rider of the motor cycle negligent to the extent of 20% is set aside and it is held that the driver of the car was wholly negligent in causing the accident. Hence, the claimant would be entitled to the entire compensation that has been determined by the Tribunal and also to the extent of enhancement to be considered by this Court.