f- . c ^3 HIGH COURT OF CHHATTISGARH. BILASPUR (SB: Hon'ble Shri Justice Rangnath Chandrakar) Misc. Appeal (Cl No. 1461 of 2009 ADpellant Non-applicant. Respondent Applicant Homeshwar Prasad Sidar, s/o. Mohanlal Sidar, aged about 28 years, r/o. village Gitkera, P.S. Palari, Distt. Raipur(CG). Versus Shiv Prasad s/o. Sarju Ram Satnami, aged about 40 years, r/o. village Gitkera, P.S. Palari, Distt. Raipur(CG). (Appeal underSectjpn 173 ofthe Motor Vehicles Act, 1988) Present: Mr." Hanuman Prasad Agrawal, counsel for the appellant. Mr; Pawan Kesharwani, counsel for the respondent. ORAL ORDER (Passedon 18-3-2011) 1. This is an appeal by the owner - Homeshwar Prasad Sidar against the award dated 30-6-2008 passed by the 2nd Additional Motor Accidents Claims Tribunal (for short, "the Tribunal"), Baloda Bazar, District Raipur in Claim Case No. 42 of 2006, whereby the Tribunal awarded a sum of Rs. 36.000/- as total amount of compensation to the claimant. 2. Brief facts of the case are that on fateful day i.e.,on 8-6-2006 at about 6.00 pm.., the respondenVclaimant was going on his bicycle to village Gitkera from village Datan and when he reached near Khorsinala, the appellant/non-applicant driving his MotorCycle bearing Registration No. CG-04ZH/3426 in a rash and negligent manner dashed the respondent/claimant :^:iS3sSSKSSs£&^., IIIININia', '3'^ coming from opposite side, as a result ofwhich he fell down and sustained fracture in his left leg below knee. After the incident appellant/non-applicant fled away from the place of incjdent and thereafter the report was lodged in Police Station Palari. Claimant was sent to Hospital for medical examination and thereafter he was admitted in Astha Nursing Home, Bhatapara, where his leg was operated and he was hospitalizedforlO-11 days. As against the compensation of Rs 2,16.940/- claimed by the claimant by filing a claim petition under Section 166 of the Motor Vehicles Act, 1988 for his injury in the motor accident on 8-6-2006, the Tribunal awarded a total sum of Rs.36,000/- as total amount of compensation to the claimant. Aggrieved therewith the owner/appellant has filed this appeal for setting aside the impugned award. Shri Hanuman Prasad Agrawal, learned counsel appearing for the appellant vehemently argued that the Tribunal has erred in holding that the accident occurred due to sole negligence of the driverof the Motorcycle, whereas in fact it was a case of contributory negligerice where fhe injured who was driving the bicycle also equally contributed to the accident, the Tribunal has erred in assessing the income of the claimant/respondent at Rs.2500/- per month without any cogent evidence in that behalf. €) 5. On the other hand, Shri Pawan Kesharwani, learned counsel appearing for the respondent supporting the impugned award submitted that it is the duty on the part of the appellant to prove the contributory negligence which he failed, therefore, the compensation of Rs. 36,000/- awarded by the Tribunal is just and proper in the facts and circumstances of the present. 6. I have heard learned counsel for the parties, perused the impugned award and record ofthe Tribunal. 7. From perusal of the testimoniesof the witnesses, it is clear that on the date of incident when the claimant/respondent was going to village Gitkera from Datan market on his bicycle, the appellant/non-applicant coming from opposite side as he was goingto Datan from village Gitkera driving his offending vehicle rashly and negligfently dashed claimanVrespondent as a result of which he fell down and sustained injury in his left leg. The appellant has stated in his deposition in para2that after the incident the claimant asked hjs father to pay money as he sustained injury because of negligent driving on the part of his son (appellant) and on refusal the claimant lodged report against him. Arvind Kumar (NAW-2) stated in his deposition in para 10 that there was no previous enmity between the appellant and the claimant. The appellant has also nowhere stated about any previous enmity with the claimant, Thus, there was no likelihood of falselyimplicating the appellant by the ^^y^,^ 3A'\ ('ltess. 1 I, ""T:"3.!/ ^,...^;'^ c...' c. ^2: claimant and it appears that there was negligence in driving the offending vehicle on the part of the appellant; therefore the question ofcontributorynegligence does not arise. So far as the injury sustained by the claimant is concerned, it is not disputed by the appellant and proved by the claimant by the cogent evidence. 8. So far as the income assessed by the Tribunal is concerned, from the evidence of the claimant itwould be evident that he was doing the work of agricultural' labour and thereafter he used to do the work of making bricks. The claimant has very honestly deposed that from the aforesaid work he was earning Rs.80/- - Rs. 100/- per' day. Lfearned Tribunal, assessed the daily earning of the claimant as Rs.100/- per day according to the govt. rate for the unskilled labourer and held the monthly income of the claimant as Rs, 2,500/- which is just and proper. 9. The Tribunal, on a close scrutiny of the entire evidence led before it held that the claimant Shiv Prasad sustained fracture in his left leg on account of the motor accident on 8- 6-2006. 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