N. SHIVAPRAKASH, S/O. R.M. NAGARAJ Vs. JOHN. L. LOWICY, S/O. ANTNONI JOSEPH LOWICY, LAKSHMIKANTHA, S/O. GOVINDAPPA AND THE ORIENTAL INSURANCE CO. LTD., UDUPI

JUDGEMENT

(1.) LEARNED counsel for the appellant submits that though the claimant sustained permanent disablement to the extent of 30% with reference to the right leg, the Tribunal has not awarded adequate compensation towards the relevant heads. He also submits that the Tribunal erred in fixing contributory negligence on the part of the claimant to the extent of 50%. He prays for enhancement of compensation fixing total negligence on the part of the driver of the van in question.

(2.) IN spite of service of notice on Respondent No. 3/ Insurance Company, there is no representation.

(3.) IT is the case of the claimant that he was 47 years old, a Stenographer in S.P. office at Tumkur and earning Rs. 8,500/ - p.m., and he sustained grievous injuries in the motor accident that occurred on 05.10.2005. It is pleaded that on 05.10.2005, the claimant was proceeding on his TVS Suzuki Motor -Cycle bearing Registration No. KA -20/A -4332 from his house towards S.P. office slowly on the left -side of the road and while proceeding in front of Helepad Circle at Shimoga -Sagar Road, at about 4.00 p.m., van bearing No. KA -20/A -4332 belonging to the Respondent No. 1, driven by Respondent No. 2 came on the wrong side in a rash and negligent manner in high speed from Kuvempu road side and dashed against the motor -cycle, as a result of which, he fell down and sustained grievous injuries. He was admitted to Mc. Gann Hospital at Shimoga, where he was treated as inpatient. Thereafter, he was shifted to Kasturba Hospital at Manipal. He filed a claim petition against owner, driver and insurer of the van in question, claiming compensation of Rs. 5,15,000/ - towards personal injuries and damage caused to the motor -cycle. The Respondents 1 and 2 entered appearance and filed their joint written statement denying the averments of the claim petition. It is pleaded that the claimant without observing the traffic rules, suddenly crossed the road to reach S.P office and fell on the road and sustained injuries. Respondent No. 2/driver of the mini lorry had valid driving licence to drive and the vehicle was insured with the Respondent No. 3 and therefore, they are not liable to pay compensation to the claimant. Respondent No. 3/Insurance Company also entered appearance and filed written statement denying the averments of the claim petition and sought for dismissal of the same. The Tribunal framed as many as four issues. In support of the case of the claimant, he got himself examined as P.W. 1 besides examining Zulfiquer Ali @ Babu and Dr. Shyamasundar Bhat. N as P.Ws. 2 and 3 and got marked Exs. P.1 to P. 30. The respondents have not adduced rebuttal evidence. The Insurance Company has got marked copy of Insurance policy as Ex. R.1. The Tribunal has answered Issue No. 1 on the point of negligence partly in the affirmative holding that the width of the road was 50' and if the claimant was really coming in left side of the road, there was no reason for the 2nd Respondent to dash against the vehicle of the claimant coming from the opposite side. The Tribunal has awarded compensation of Rs. 1,87,000/ -. The percentage of contributory negligence is not mentioned in Para No. 9 dealing with issue on the point of negligence. But only in Para No. 17, it is held that Respondent No. 3/Insurance Company is liable to pay 50% of the compensation amount of Rs. 1,87,000/ -, which comes to Rs. 93,500/ -. The Tribunal has awarded interest at the rate of 6% p.a., from the date of petition till realization, in view of the grounds urged by the appellant/claimant, I formulate the following points for my consideration: