A KASIM Vs. GURDEO KAUR

JUDGEMENT

(1.) The Insurance Company as well as the claimant are on appeal before this Court against the award granted by the Tribunal. THE Insurance Company challenges the issue of contributory negligence fixing the liability at 65% on the Insurance Company as well as compensation granted in this case. As far as the claimant is concerned, the appeal is on the percentage of distribution of negligence as well as seeking an enhancement of the compensation by adopting the multiplier.

(2.) A perusal of the award shows that the claimant made a petition for compensation of Rs.20,00,000/-, but restricted to Rs.15,00,000/-, for the injuries suffered in the alleged accident. On 11.1.2000, at about 2.30 am, the claimant was driving his Tempo Traveller from Bangalore to Kancheepuram. At that time, the lorry insured with the appellant, applied sudden brake in the process, it hit against the Tempo Traveller coming behind the lorry thereby the driver of the Tempo Traveller suffered grievous injuries. He was admitted in the Government Hospital as an in-patient. It is stated that he continues to have his treatment even now. He was employed in K.R.L. Travels and Tours, Ranipet and was earning a sum of Rs.4,500/- per month. In support of the claim, the claimant/appellant in C.M.A.No.1293 of 2008 examined himself as P.W.1. Apart from that, he examined two doctors who issued the disability certificate marked as Exs.P11 and P15. The discharge summaries are marked as Exs.P1 to P3 and the wound certificate is marked as Ex.P4. Ex.P15 is the disability certificate as regards the eye, marked by the claimant. As P.W.1, the claimant reiterated the contentions in the claim petition. The First Information Report, marked as Ex.P10, was lodged by one of the passengers in the Tempo Traveller. Admittedly, the said person was not examined by the claimant in this case.

(3.) Learned counsel appearing for the claimant pointed out that, in the charge sheet, it was clearly stated that the offending lorry driver was responsible for causing the accident. Per contra, learned counsel appearing for the Insurance Company pointed out to the inconsistency between the First Information Report and the contention of P.W.1-claimant that when the definite case as per the earliest of the documents showed that the claimant's Tempo Traveller was the one which hit against the lorry, the contention that in the process of overtaking another lorry that the offending lorry caused the accident, was not substantiated. However, the Tribunal referred to both these aspects and came to the conclusion that going by the nature of the accident, this is a case of contributory negligence and fixed the ratio of negligence as 35:65 as attributable to the appellant at 35% and the lorry insured with the Insurance Company at 65%.