ASHISHKUMAR GAJANANDBHAI JOSHI Vs. MAHAMADSAFI USMANBHAI MEMON

JUDGEMENT

(1.) THE challenge in this appeal is to the common judgment and award rendered by learned M.A.C.T. (Aux.), District Sabarkantha at Himmatnagar on 26.2.2002 in MACP No.535 of 1993 and other allied matters. The appellant herein was original claimant in MACP No.535 of 1993. He filed the aforementioned claim petition to recover Rs.2 Lacs by way of compensation from the respondents herein, who were original opponents No.1 to 3 in his claim petition. The Tribunal vide common judgment and award impugned in the appeal awarded by way of compensation Rs.64094/- with running interest interest @ 9% p.a. from the date of said claim petition till the realisation of the amount and the respondents No.1 to 3 (original opponents No.1 to 3) were directed to pay said amount to the appellant � claimant jointly and/or severally. The appellant � original claimant felt that the amount awarded by the Tribunal is on very lower side and, therefore, preferred this appeal for enhancement of the amount of compensation, but restricted the appeal for enhancement to the tune of Rs.71812/-.

(2.) AS per the case of the appellant � claimant, on 29.1.1993, at about 4 p.m. in the evening, he along with two other persons, namely, Dalpatsingh Amarsing Chavada (claimant in MACP No.283 of 1993) and Manilal Chenava (claimant in MACP No.539 of 1993) were proceeding on a motorbike bearing registration No.GBN-8743 and they were going from Radhiwad to Khedbrahma. The appellant � claimant was riding motorcycle and Dalpatsingh and Manilal were pillion riders. When they reached near Netral Patiya, at that time, jeep driven by respondent � opponent No.1 and owned by respondent � opponent No.2 and insured with respondent � original opponent No.3 � National Insurance Co. came from the opposite direction and the jeep driver was driving his jeep rashly and and negligently and with excessive speed and the jeep came on the wrong side of the road and dashed with the motorbike and in the result, appellant, claimant Dalpatsingh and claimant Manilal sustained bodily injuries. It is the case of the appellant � claimant that initially he was admitted in Cottage Hospital, Khedbrahma and from there he was transferred to Civil Hospital, Himmatnagar and from there for further treatment, he was shifted to Civil Hospital, Ahmedabad as he had sustained injuries resulting into three fractures in his right leg, right wrist. It is the case of the appellant � claimant that at the time of the accident, he was serving as Field Supervisor in an Institution called National Association for the Blind and he was getting Rs.2000/- p.m. as salary. He had to remain indoor patient for considerable long time and he could not attend the job for the period of 21 months. That his injuries resulted into permanent functional disability, which reduced his earning capacity. The appellant � claimant, therefore, filed MACP No.535 of 1993. As state above, he had claimed Rs.2 Lac by way of compensation, but the Tribunal awarded Rs.64094/- by way of compensation and, therefore, he preferred this appeal for enhancement.

(3.) MR.Sunil Parikh, learned advocate for the respondent No.3 � insurance co., at the outset, fully supported the impugned judgment and award rendered by the Tribunal and submitted that the Tribunal was perfectly justified while coming to the conclusion that the appellant was equally responsible for the accident and the Tribunal, therefore, rightly apportioned his equal negligence. It is submitted that the evidence on record clearly reveals that along with the driver of the jeep, he was equally responsible for the accident. In the instant matter, the FIR came to be lodged by the driver of the jeep himself and the said FIR is also relied upon by the appellant � claimant and perusing the contents of the said FIR, the driver of the jeep has categorically stated that since the right hand side front wheel came to be abruptly bursted, he lost control over the steering and the motorcycle dashed with his jeep. Mr.Parikh, learned advocate for the respondent No.3 insurance co., therefore, submitted that when the appellant � claimant relied upon the FIR, lodged by the driver of the jeep himself, it was not necessary for the driver of the jeep to step into the witness box. Mr.Parikh, learned advocate for the respondent No.3 � insurance co. further submitted that there is no dispute that to permit two persons as pillion riders on the motorbike is an offence, but this fact is equally important while considering the issue regarding negligence.