HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO M.A.C.M.A.Nos.3166 AND 3174 OF 2011 COMMON JUDGMENT: Both these appeals arise out of common accident. The claimant in O.P.No.218 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Nizamabad is the appellant in M.A.C.M.A.No.3166 of 2011 and the claimant in O.P.No.219 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Nizamabad is the appellant in M.A.C.M.A.No.3174 of 2011. 2. According to the case of the petitioners, on 09.12.2001 when they were going on a motorcycle bearing No.AP 25/A 6162 driven by the petitioner in O.P.No.219 of 2003, whereas the petitioner in O.P.No.218 of 2003 was pillion rider and reached near Bussapoor Sub Station at 10-00 P.M., the lorry bearing No.MP 08/D-1404 driven by its driver came in a rash and negligent manner, dashed against the motorcycle, as a result of which, the petitioners received multiple injuries. The 1st respondent is owner of the vehicle and the 2nd respondent is Insurance Company. Both of them are jointly and severally liable to pay the compensation. The 1st respondent contended that there is no rashness or negligence and the vehicle was insured with the 2nd respondent and there is no liability. The 2nd respondent contended that the incident happened due to the fault of the driver of the motorcycle and there is no rashness or negligence on the part of the driver of the lorry. The liability to pay the compensation and also quantum of compensation are disputed. After considering the evidence on record, the lower Tribunal has granted compensation of Rs.30,000/- in O.P.No.218 of 2003 and Rs.25,000/- in O.P.No.219 of 2003 and also found that there was contributory negligence on the part of the driver of the motorcycle and equally apportioned the same. Consequently, directed the Insurance Company to pay half of the amount of compensation awarded. Aggrieved by the said award the present appeals are filed by the petitioners. 3. The points for consideration are: 1) Whether the there is contributory negligence on the part of the driver of motorcycle? 2) Whether the quantum of compensation granted by the lower Tribunal is just and reasonable? 4. POINTS: The learned counsel for the appellants in both the appeals contends that finding of the lower Tribunal about contributory negligence of the driver of motorcycle is not based on any evidence and it is inconsistent with the finding of the Tribunal. In fact, a specific issue has been framed by the Tribunal as to whether the incident happened due to the fault of the driver of the lorry. No point for consideration has been framed as to whether the driver of the motorcycle also contributed to the incident. The finding recorded in point No.1 clearly goes to show that from the evidence of the claimant and the charge sheet the lorry was involved in the accident and it was further held that as the lorry was insured with the 2nd respondent the compensation is payable. That being the finding recorded without appreciating other evidence, while determining the compensation the lower Tribunal has found that the negligence is contributory and relied upon the decision of the Madras High Court reported in Tamil Nadu State Transport Corporation Ltd. v. Abdul Salam and Ors. (2004 ACJ 1827). 5. It is to be noted whenever a plea of contributory negligence is raised, at least there should be some material to suggest that the rider of the motorcycle is also guilty of the rashness or negligence. Merely because three persons were travelling on the motorcycle does not itself lead to an inference that there was negligence on the part of the driver of the motorcycle. Further-more, the police have investigated into the case and filed charge sheet against the driver of the lorry alone finding him guilty of rashness and negligence. In fact, from the evidence of the claimants, there is no material to show that there was a contributory negligence on the part of the driver of the motorcycle. Therefore, in view of the above circumstances, the finding of the Tribunal below holding that the driver of the motorcycle also guilty of negligence is not sustainable and it has to be held that the incident happened due to the fault of the driver of the lorry alone and the Insurance Company has to pay by the entire compensation. 6. So far as the quantum of compensation in O.P.No.218 of 2003 is concerned, the doctor has been examined and his evidence clearly goes to show that the petitioner has got four injuries and out of them two are grievous in nature and Ex.A.3 is the wound certificate issued by him. Though the X-ray films are not filed the evidence of PW.2 on this aspect cannot be ignored. In fact, the finding of the Tribunal goes to show that the medical evidence reveals that the petitioner sustained fracture of frontal bone and fracture of scaphoid bone and two simple injuries. That being so, the Tribunal has not granted any amount towards medical expenses and only a sum of Rs.30,000/- was granted as compensation in a lumpsum manner. Evidently, the factum of treatment and also the nature of the disability, even if a temporary nature, and loss of earnings are not taken into consideration. Therefore, taking into consideration the above facts, I feel the ends of justice would meet if a compensation of Rs.50,000/- is granted on all counts. 7. So far as the quantum of compensation in O.P.No.219 of 2003 is concerned, the evidence of PW.2 clearly goes to show that the petitioner has got two fractures, one is to right maxilla and another to mandible and also one abrasion over forehead. This was also accepted by the lower Tribunal, which is supported by Ex.A.3. However, the lower Tribunal has not taken into consideration the nature of the treatment, medical expenses and also temporary disability or the loss of earnings. Taking into consideration the above facts, I feel the ends of justice would meet if a compensation of Rs.40,000/- is granted. 8. The enhanced compensation shall carry the same interest of 7.5% per annum which was granted by the lower Tribunal. Accordingly, both the appeals are allowed in part. No costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:12.12.2011 INL