KESAR SINGH Vs. RUKHMANIBAI

JUDGEMENT

(1.) THIS appeal is filed by the appellant under Section 173 of the Motor Vehicles Act, against an award dated 24th September, 2003 passed by learned First Additional M.A.C.T., Neemuch in Claim Case No. 194/2002. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 31,100/ - with interest to the appellant by way of compensation for the injuries sustained in the accident occurred on 21st November, 2001.

(2.) APPELLANT had preferred a claim petition under Sections 166 and 140 of the Motor Vehicles Act, seeking compensation to the tune of Rs. 3,80,000/ -. According to the appellant compensation awarded by the Tribunal is meager and deserves enhancement; however, by filing the appeal inadequacy of the compensation has been assailed.

(3.) SHRI Sameer Athawale, learned Counsel appearing for the appellant submits that the Tribunal has awarded Rs. 58,160/ - along with interest @ 7% p.a., but it was also found that the injured was also negligent to the extent of 50%, as per the finding of the contributory negligence at the time of occurrence, therefore, the compensation half thereto i.e., Rs. 28,080/ - has been directed to be paid. Counsel submits that the finding of contributory negligence is based on presumption arrived at in the mind of the Tribunal, therefore, such finding, which is merely on the presumption cannot be sustained in law. Counsel placed reliance on the provision of Section 185 of the Motor Vehicles Act and argued that in a case of drunken person if the contents of the alcohol is exceeding 30 ml. in his blood, which is 100 per ml. then only it can be assumed that a person was under influence of a drug. In the present case the finding has been recorded merely on the basis of a remark of the doctor mentioned in the M.L.C. - "Smell of alcohol was coming from the mouth of the injured". Merely, such remark, without satisfying the required test, is not sufficient to record a finding of intoxication against the injured. In that view of the matter it is argued that the finding of contributory negligence as recorded by the Tribunal is without any substantial piece of evidence and such finding is liable to be set aside. He further argued that the amount awarded by the Claims Tribunal is meager, inadequate and that too is liable to be enhanced by allowing the appeal.