M PADMANABHA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal arises from the judgment and award dated 19. 8. 1988, delivered by Mr. Mohammed Asif, District Judge/member, Motor Accidents Claims Tribunal, Chikmagalur, in motor Vehicle Claim Case No. 157/86 (M. Padmanabha v. Union of India), assessing Rs. 44,600, as total compensation, but declaring the claimant to be entitled to Rs. 33,450, as the compensation, taking the view that there was contributory negligence of the claimant and that was taken to the extent of 25 per cent and on that basis, the award in favour of the claimant-appellant was for Rs. 33,500 only.

(2.) THE claimant-injured, who is the appellant before this Court, had filed the claim petition with the allegations to the effect that on 16. 4. 1986, he was riding on Shimoga-N. R. Pura Road, on the pillion of motor cycle No. CNA 65, which was being driven and on which the rider was the respondent No. 4, Shabeer Ahmed. According to the claimant's case, the said motor cycle had been insured with the respondent No. 5, the insurance company. According to the claimant's case, the respondent No. 4, allegedly was at high speed, notwithstanding the requests of the claimant-appellant to slow down and be cautious, near the Horticultural Office on the N. R. Pura-Shimoga Road and the motor cycle collided with jeep No. ABR 6533 which was coming from the opposite direction in the middle of the road. According to the claimant's case, jeep was also being driven at a high speed by respondent No. 3 in the claim petition, namely, respondent no. 3 in the memo of appeal. It belonged to respondent Nos. 1 and 2 in the appeal, that is, Union of India and the Central Ground Water Board Region of India. The petitioner's case is that as a result of head-on collision of the jeep with the motor cycle, the petitioner was thrown off the motor bike and the jeep ran over the left leg of the claimant resulting in compound fractures of the left tibia and fibula. The claimant was taken to the nearby primary Health Centre for the first aid and, thereafter, was shifted to K. M. C. Hospital, Manipal, for further treatment, where according to the claimant's case, he was in-patient with his left leg plastered for the period from 16. 4. 1986 to 7. 5. 1986. The claimant's case is that he was admitted in the said hospital for skin-grafting and he was advised to take complete rest for nearly a month and thereafter, he appeared again for further check-up and removal of plaster on 6. 6. 1986. Petitioner-claimant further alleged that on examination by the doctors of the K. M. C. Hospital, manipal, it was found that the fractures had not united and the injured was asked to continue with the plaster for a further period of 1 1/2 months. Again on 27. 7. 1986, the claimant had to go to the hospital and there plaster was removed and replaced by a crape bandage and he was advised to walk using the crutches. Claimant's case is that he was unable to move and walk without support of it and his left leg suffered with permanent disability. The claimant had been advised for another operation for resetting of the bones. Claimant's case is that on the date and immediately before the occurrence, claimant was earning Rs. 4,000 per month as a timber merchant with which he was maintaining his family, but as a consequence of the occurrence and disability caused, he became bedridden for long and could not carry on his work. The claimant had claimed a sum of Rs. 2,64,000 for pecuniary loss, a sum of Rs. 8,000 as present medical expenses, a sum of Rs. 1,300 as taxi hire charges, a sum of Rs. 1,000 towards the attendant charges and a sum of Rs. 25,700 for mental shock and suffering. Thus, in total, the claimant made a claim for Rs. 3,00,000.

(3.) ON notice being issued, statement of objection or written statement as I may say, was filed by the respondent No. 2 which had been adopted by the respondent Nos. 1 and 3 as well. The respondents denied the claim of the claimant-appellant and asserted that the occurrence did not take place at all due to the alleged rash or negligent driving of the jeep, in other words, the respondents denied that the jeep was being driven in a rash and negligent manner and they denied the occurrence having taken place on account of any alleged rash and negligent driving of the jeep. It was further asserted that the claimant was a pillion rider of the motor cycle and the same was driven by respondent No. 4 at a very high speed. It was also asserted that more than one person were sitting on the pillion. At the time of occurrence, there were three persons, the motor-cyclist and the two pillion riders. The respondents further pleaded that claim for quantum of compensation claimed is exorbitant and out of proportion to the alleged pecuniary loss. Respondent No. 4 also filed the written statement. He admitted the accident causing injury to the claimant to have taken place on the date, at the time and place alleged in the claim petition. Respondent No. 4 denied the allegation to the effect that cause of occurrence was any such thing as rash and negligent driving or riding of the motor cycle by respondent No. 4. Respondent No. 4 asserted that the occurrence was solely due to rash and negligent driving of the jeep in question by respondent No. 3. Respondent No. 4 further asserted that if any compensation is payable to the claimant, then as the motor cycle has been insured, the liability for payment of the compensation is on respondent No. 5, the insurance company.