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Judgment
Aravind Kumar, J.—Claimant is in appeal seeking for enhancement of compensation and also to set aside the finding of the tribunal insofar as apportioning negligence of the claimant to an extent of 25% by MACT, Bangalore in MVC 9110/2008 dated 03.02.2010. Though matter is listed for hearing on interlocutory application by consent of learned advocates appearing for the parties, it is taken up for final disposal.
I have heard the arguments of Sri. Sharath S. Gowda, learned counsel appearing for appellant and Sri. C. Shankara Reddy, learned counsel appearing for second respondent-insurer and Sri. F.S. Dabali, learned counsel appearing for R-1 who has undertaken to file Vakalatnama on behalf of R-1.
Facts in brief leading to filing of this appeal are as under:
On 01.08.2008 at about 4 P.M. claimant was proceeding in his TATA Indica car near Kaniminike Colony, Kengeri Hobli. A BMTC bus bearing registration No. KA-01-F-1157 which was proceeding towards Bidadi from Bangalore on Bangalore-Mysore Road was proceeding in front of the Indica car and on account of the driver of the bus applying sudden brake and attempting to take ''U'' turn abruptly by stopping the bus that too without giving any indication or signal, resulted in claimant who was behind the bus loosing control and dashing his car to the hind side of the bus and on account of impact he sustained injuries. As such claimant filed a claim petition u/s 166 of Motor Vehicle Act seeking compensation of Rs. 5,00,000/-. Respondent No. 2 appeared and filed its statement of objections and contended inter-alia that accident in question occurred on account of negligence of the driver of the Indica car i.e., claimant and as such it sought from being absolved of its liability which had been fastened on it by the tribunal.
On appreciation of evidence tendered by the parties both oral and documentary tribunal allowed the claim petition in part and awarded a total compensation of Rs. 1,00,000/- by way of global compensation considering the nature of injuries sustained, number of days of hospitalization and on the basis of medical records made available before the Tribunal. However by considering the plea of the corporation regarding contributory negligence of driver of Indica car, tribunal held that claimant was required to maintain a considerable distance while following the bus from behind and on account of there being no reasonable distance being maintained by him he had also contributed to the accident on account of his negligence and as such it held claimant was responsible for causing the accident and his negligence was to an extent of 25%. On the basis of the complaint lodged by claimant jurisdictional police investigated the matter and filed charge sheet against the driver of the bus. Infact claimant having entered the witness box has categorically stated that he had maintained safe distance of more than 30 feet from the bus and nothing worthwhile is elicited in his cross examination to disbelieve said statement. One another factor which requires to be noticed by this court is, driver of the bus has not entered the witness box, he has not spoken to the manner and mode in which the accident had occurred. In that view of the matter tribunal could not have fastened the contributory negligence to an extent of 25% on the driver of the Indica car i.e., claimant. Hence, said finding recorded by the tribunal fastening the liability to an extent of 25% on the claimant himself requires to be set aside.
Though Sri. Sharath, learned counsel appearing for claimant has vehemently contended that quantum of compensation requires to be enhanced, I am not inclined to accept said prayer inasmuch as tribunal has taken into consideration the relevant material facts on record to award global compensation of Rs. 1,00,000/- which is just and reasonable and it does not call for interference since it does not suffer from any infirmity whatsoever.
For reasons aforestated, following order is passed:
ORDER
Appeal is hereby allowed in part.
Judgment and award passed by MACT, Bangalore in MVC 9110/2008 dated 03.02.2010 is hereby modified and liability of contributory negligence of 25% fixed on the claimant is hereby set aside.
Insurer is liable to pay sum of Rs. 1,00,000/- to the claimant as awarded by the tribunal with interest @ 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.
Insurer shall deposit the said amount within four weeks from the date of receipt of certified copy of this order if not already deposited.
Order on bank deposit made by the Tribunal shall stand undisturbed.
No costs.