MOOLCHAND Vs. SANTOSH

JUDGEMENT

(1.) BEING aggrieved by the award dated 26.8.2006 passed by the First Additional M.A.C.T., Mandsaur in Claim Case No. 242 of 2005 whereby the claim petition filed by the appellant was allowed and compensation of Rs. 2,62,636 was assessed on account of injuries sustained by the appellant, out of which 50 per cent amount was deducted on the ground of contributory negligence, present appeal has been filed.

(2.) SHORT facts of the case are that the appellant filed a claim petition before the learned Tribunal alleging that on 23.7.2005 at about 6 p.m. while appellant along with his friend Prakash was going from Mandsaur to Dhudka on his motor cycle at the relevant time, opposite to Pankaj Dal Mills (Daloda), met with an accident to the truck bearing registration No. MP 09-KA 1984 which was being driven rashly and negligently by respondent No.1. The truck was owned by respondent No. 2 and insured with respondent No. 3. As a result of the accident appellant sustained grievous injuries. It was alleged that after preliminary treatment at Mandsaur the appellant was shifted to Ahmedabad where the appellant was hospitalised for a period of 3 months. The right leg of the appellant was amputated above knee, length of the right leg after amputation was 13". It is submitted that learned Tribunal has awarded a sum of Rs. 2,62,636, the break-up of which is as under: Loss of earning capacity Rs. 1,02,000 Medical expenses Rs. 50,636 Pain and suffering Rs. 10,000 Permanent disability Rs. 1,00,000 Total Rs. 2,62,636

(3.) LEARNED counsel for the respondent No. 2 submits that the appellant was not having driving licence. Apart from this, in the written statement, appellant himself has admitted that at the time when the accident occurred, appellant was under the impression that the dumper which was going ahead is giving the side to the appellant for overtaking but at that time the truck which was coming from the opposite direction dashed the appellant. It is submitted that in all the facts and circumstances of the case, when the appellant himself is admitting as to under what circumstances the accident occurred, no further evidence was required for ascertaining under what circumstances accident took place. It is submitted that in the facts and circumstances of the case, learned Tribunal committed no error in holding that it was a case of contributory negligence for which the appellant was liable to the extent of 50 per cent. So far as compensation is concerned, it is submitted that the appellant was working as a peon in a gram panchayat. It is submitted that in spite of the fact that learned Tribunal has calculated the earnings on the ground that the appellant was working as blacksmith and assessed the compensation at the rate of Rs.500 per month which is not permissible. It is submitted that in the facts and circumstances of the case so far as application of artificial limb is concerned, since the appellant is willing to fix an artificial limb, therefore, it is prayed that appropriate amount be awarded on that account. It is submitted appeal be dismissed.