1 S.B. Civil Misc. Appeal No.2155/2007 Roshan Lal. vs. Deva Ram & Ors. S.B. Civil Misc. Appeal No.2155/2007 Roshan Lal. vs. Deva Ram & Ors. Date : 11.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.TS Champawat, for the appellant. Mr.S Saruparia ) for the respondents. Mr.M Singhvi ) - - - - - Heard learned counsel for the parties. This appeal has been preferred by the appellant/ injured/claimant for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Rajsamand in MACT Case No.82/2005 vide judgment and award dated 14.5.2007. The appellant claimed damages of Rs.25,88,000/- on account of the injuries suffered by him in the accident which were caused on 12.1.2005 by respondent driver Deva Ram while driving Truck No.RJ 06-G-4233. According to the appellant, because of this accident, he suffered various losses narrated in the claim petition and, therefore, he claimed huge compensation of more than 2 S.B. Civil Misc. Appeal No.2155/2007 Roshan Lal. vs. Deva Ram & Ors. Rs.25 lakhs. However, the Tribunal awarded total Rs.70,000/- only as compensation to the appellant and deducted 30% on account of the appellant's own contributory negligence. Learned counsel for the appellant submitted that the Tribunal miserably failed to take note of the fact that it was a case of shortening of leg by 1.5 cm as certified by the doctor in medical examination report Ex.10. The learned tribunal only assessed the compensation on the basis of the appellant's permanent disability to the extent of 35%. It is also submitted that in fact, the appellant suffered great mental agony and is, therefore, entitled to compensation as claimed by him. Learned counsel for the appellant also submitted that 30% of the amount has wrongly been deducted from the total compensation for which the appellant was entitled. This deduction is on account of three persons riding the motorcycle in which the appellant was one of the person. Learned counsels for the respondents – owner as well as the insurance company submitted that the tribunal has considered the medical evidence Ex.10 and 3 S.B. Civil Misc. Appeal No.2155/2007 Roshan Lal. vs. Deva Ram & Ors. thereafter, awarded Rs.35,000/- on account of the injuries suffered by the appellant as certified by the doctor vide Ex.10. It is also submitted that because of riding of three persons on the motorcycle, the appellant also contributed to the negligence as it is impossible to maintain balance of the motorcycle when three persons are on motorcycle. I considered the submissions of learned counsel for the parties and perused the reasons given in the impugned award as well as the record. So far as causing accident by Deva Ram and liability of insurance company to reimburse the compensation is concerned, there is no dispute as the award has not been challenged by the driver, owner or the insurance company. The Tribunal while considering certificate Ex.10 submitted by the appellant observed that the appellant did not produce the doctor and thereby the respondents were deprived of the opportunity of cross examination. It is also observed that the medical certificate has not been duly proved. After observing so, the Tribunal awarded compensation to the tune of Rs.35000/- on account of permanent disability. 4 S.B. Civil Misc. Appeal No.2155/2007 Roshan Lal. vs. Deva Ram & Ors. It appears that the tribunal observed that there is claim of appellant about disability of the appellant by 35%. The disability has been noticed by the tribunal from the certificate Ex.10 but shortening of leg has been ignored. Because of shortening of leg, the appellant will have pain in his whole life and will have his own agony. In view of the above, the Tribunal should have awarded compensation appropriate to the injury of the appellant which in my opinion can be compensated by awarding Rs.1,00,000/- in place of Rs.35,000/-. So far as question of contributory negligence is concerned, certainly three persons when ride the motorcycle, then reasonably it can be presumed that there was contributory negligence of the persons riding the motorcycle and, therefore, this fact cannot be taken lightly. In view of the above reasons, I do not find any reason to interfere in the award by which the Tribunal has deducted 30% of the compensation. In view of the above reasons, taking into consideration all the facts, the appellant is held entitled to Rs.1,00,000/- on account of his pain sufferings on account of shortening of his leg in place of Rs.35,000/- as awarded by the tribunal. Rest amount 5 S.B. Civil Misc. Appeal No.2155/2007 Roshan Lal. vs. Deva Ram & Ors. awarded is maintained. The appellant shall be entitled to interest as awarded by the Tribunal on the enhanced amount from the date of the order passed by this Court. Consequently, this appeal is partly allowed. (PRAKASH TATIA), J. S.Phophaliya