BIHARILAL Vs. PANNALAL

JUDGEMENT

(1.) This order shall also govern the disposal of MA. No.811/ 06 as both the appeals are arising out of one award and one accident. In both the appeals parties are one and the same except the claimant, who are appellants.

(2.) Short facts of the case are that appellants who are Bihari and Deepubai and father and daughter in relation filed claim petitions alleging that on 25/06/04 they were traveling on a motor byke which was driven by son of Biharilal namely Balram. It was alleged that a truck bearing registration No. HR 38/M3841 was coming from other direction, which was rashly been driven by respondent no. 2, owned by respondent no. 1 and insured with respondent no. 3. It was alleged that because of rash and negligent driving of respondent no. 2 an accident took place in which Bihari sustained fracture of Tibia and Fibula in right leg. It was alleged that appellant Biharilal was hospitalized at District Hospital, Shajapur from 25/06/ 04 to 26/06/04 from where appellant was referred to Saluja Narsingh Home, Ujjain, where appellant remain as indoor patient from 26/06/04 to 06/07/04, where appellant was operated and rod was inserted. There was permanent disability up to 14.6%. In other matter in which the injured is appellant Deepubai learned counsel for the appellant submits that appellant sustained fracture of femur bone. Appellant was hospitalized at District Hospital, Shajapur from 25/06/04 to 26/06/04 from where appellant was referred to Saluja Nursing Home, Ujjain where appellant was hospitalized from 26/06/04 to 06/07/04. Appellant was operated and plating and bone grafting took place. Permanent disability was assessed @ 18.4%.

(3.) Learned counsel for the appellant submits that learned tribunal after framing of issues and recording of evidence awarded a sum of Rs.35,000/- in both the case and deducted 50% of the amount on account of contributory negligence on part of the driver of the motor vehicle. Learned counsel submits that looking to the injuries sustained by the appellants amount awarded in both the cases is on lower side. It is submitted that since the driver of the motor byke was not a party to the petition, therefore, there was no occasion to decide the contributory negligence against a person who was not a party to the petition. Learned counsel submits that no case was registered against the driver of the motor byke. It is submitted that only on the ground that three persons were traveling on a motor byke. It was held that appellants are entitled for 50% of the awarded amount. Learned counsel submits that learned tribunal placed reliance on a decision of Madras High Court in the matter of Managing Director, Tamilnadu Road Transport Corporation Vs. Abdul, Reported in 2004 ACJ 1827, wherein Madras High Court has held as under:-