KANAKKUMAR PARSOTTAMDAS MAKWANA Vs. VALLABHBHAI ODHABHAI JETANI

JUDGEMENT

(1.) The appellant-claimant has challenged in this appeal the impugned judgment and award dated 18.1.1996 passed by the Motor Accident Claims Tribunal (Main), Bhavnagar whereby the learned Tribunal has partly allowed the claim petition of the appellant-claimant and awarded only Rs.43,000/- by way of compensation with interest @15% from the date of application till its realization against the total claim of Rs.3,65,362/- claimed in the petition.

(2.) The appellant met with an accident on four cross road near Devdi Chowk, Sardar Nagar area of Bhavnagar at 9.30 a.m. with Luna. In the accident, he suffered injury on his left leg. There was permanent disability of 40%. Initially, he lodged the claim of Rs.1,57,176/- before the learned Tribunal. Later on, the claim was enhanced to Rs.3,65,362/-. However, as stated earlier, the learned Tribunal awarded only Rs.43,000/- with interest @15%. Therefore, for the remaining amount of Rs.3,22,352/- present appeal is filed.

(3.) Learned counsel Mr.Pandya for the appellant firstly submitted that in the instant case, there was evidence of only appellant-claimant, whose evidence is not shaken in the cross-examination of the respondent Nos.1 and 2. He has clearly stated in his evidence that the incident has occurred because of the rash and negligent driving of the driver of Luna. In spite of it, the learned Tribunal attributed 50% negligence to the appellant-claimant. He also submitted that for arriving at the conclusion that the appellant had also contributed to the negligence, the learned Tribunal has wrongly applied the principle of res ispa loquitur and considered the panchnama Ex.44. We have carefully gone through his evidence as well as his cross-examination. From his evidence it is clear the he had not filed complaint against the real driver of Luna. The case was filed now against respondent No.1. In fact, Luna was driven by driver. Panchnama Ex.44 clearly shows that both the vehicles were found in the middle of the road and both the vehicles had dashed. In addition to it what we have noticed in Panchnama Ex.44 that there was 6 ft. break marks of scooter driven by the appellant, whereas there were no break marks of Luna. This clearly shows that appellant himself was going at a very excessive speed in the middle of road and met with the accident when he had seen Luna coming on the road from inside. Under the circumstances, it cannot be said that the learned Tribunal has wrongly attributed 50% negligence to the appellant-claimant, who was driving scooter. Hence, first contention of Mr.Pandya is rejected.