PARMINDER SING Vs. MAHESH

JUDGEMENT

(1.) By this appeal under Section 173 of the Motor Vehicles Act, the appellant (injured) assail the award dated 13.01.2006 of the XXIst Motor Accident Claims Tribunal, Indore in Claim Case No.97/05 whereby the Tribunal, on finding that there was a contributory negligence on the part of the appellant to the extent of 50%, has awarded a sum of Rs.56,000/- as against Rs.10,00,000/- claimed by the appellant. According to the case set up by the appellant, on 16.8.2003 at about 10.50 p.m, the appellant was proceeding on his motorcycle towards Palasia and when he reached Shalimar Township on A.B Road, the respondent No.2 Mahesh s/o Premsingh approached driving a Hero Honda motorcycle bearing registration No.MP-09-JX-1325 from opposite direction and on account of the rash and negligent driving of the motorcycle by the said respondent, there occurred a collision between the two motorcycles resulting in severe injuries to the appellant viz. fracture of left femur, shaft femur and tibia condyle. On account of the said injuries, the appellant was hospitalized twice and had to remain immobile for a considerable length of period.

(2.) The respondents No.1 & 2 did not contest the case and according to the Insurance Company (respondent No.3), the Company denied the accident and the injuries. In special pleadings, it was stated that the appellant did not produce the relevant documents; that respondent No.2 did not have a valid and effective driving license and that the other parties were not joined as non-applicants and thus the claim suffered from non-joinder. The Tribunal framed seven issues and came to the conclusion that the accident occurred on account of the rashness and negligence of respondent No.2; the appellant suffered permanent disability on account of the injuries sustained in the said accident, the appellant spent Rs.47,000/- on treatment; that the claim of the Insurance Company that the non-applicant no.2 Mahesh did not have a valid and effective license was not proved and that it was on account of the contributory negligence of both the vehicles that the accident occurred.

(3.) The learned counsel for the appellant has urged that no evidence was led by the Insurance Company to show that any act or omission was attributable to the appellant which contributed to the accident. Her further contention is that since the non-applicant No.2 remained ex-parte and was not called by the Insurance Company also as a witness, there was no iota of evidence to suggest that there was any negligence on the part of the appellant. Her second contention is that despite long confinement to bed of the appellant and resultant abstinence from work, the Tribunal ought to have awarded more amount towards loss of wages and the amount of Rs.5,000/- awarded on this count on the hypothesis that the income of the appellant was Rs.2,500/- per month was wholly inadequate. Learned counsel for the respondent No.3, per contra, submits that the Tribunal has considered, sifted and examined the evidence and on that basis awarded the amount for medical expenses, permanent disability, loss of wages and for pain and suffering keeping in view the permanent disability suffered by the appellant viz. 3 c.m shortening of the leg.