THE HON’BLE SRI JUSTICE NOUSHAD ALI CIVIL MISCELLANEOUS APPEAL No.151 of 2001 Dated: 22nd JANUARY, 2010 Between: B.Pentu …Appellant AND Yella Indrakaran Reddy And another …Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI CIVIL MISCELLANEOUS APPEAL No.151 of 2001 JUDGMENT: This appeal is by the claimant against the award in O.P.No.134 of 1998 dated 07.11.2000 passed by the Motor Accidents Claims Tribunal – cum – Additional District Judge, Adilabad, (‘the Tribunal’, for brevity) for enhancement of compensation. The appellant claimed a compensation of Rs.2,00,000/- (Rupees two lakh only) under Section 166 of the Motor Vehicles Act, 1988, (‘the Act’, for brevity) on account of the injuries sustained by him, together with interest and costs. The brief facts of the case are that on 24.02.1997, the claimant was travelling in a tractor bearing registration No.AP 1 T 9513 and a trolley No.9814 from Burguda to Asifabad. The driver of the tractor drove the vehicle in a rash and negligent manner, as a result of which, the claimant fell down and the back wheel of the tractor ran over his stomach causing injuries to him. He sustained fracture of his right bone and injuries to his waist. He was treated privately by a doctor by name Dr.Mahaveer for one month and that he was disabled to carry on his normal duties. He, therefore, sought for a compensation of Rs.2,00,000/-. The first respondent was the owner of the tractor and trolley. He denied that the vehicle was driven in a rash and negligent manner, but admitted that the claimant was his clerk and that he travelled on his instructions and suffered injuries. The claimant was receiving a sum of Rs.1,500/- per month with batta. The second respondent / Insurance Company resisted the claim on the ground that the driver had no valid or subsisting driving license and that the vehicle was not insured. The claim was also resisted on the ground that the claimant was travelling as an unauthorized passenger in a goods vehicle. The Tribunal considered two issues i.e. whether the accident was due to rash and negligent driving of the driver of the vehicle; and whether the claimant was entitled to any compensation and if so, to what amount. The claimant was examined as P.W.1 and Exs.A-1 to A-9 documents were marked on his behalf. The second respondent / Insurance Company got marked Exs.B.1 and B.2 documents on its behalf. The Tribunal awarded compensation to a tune of Rs.96,000/- in total. The said sum was awarded injury-wise and also for medical expenses, pain and suffering and loss of estate. However, the Tribunal reduced the compensation amount to Rs.48,000/- on the ground of contributory negligence by the claimant. Aggrieved by the same, the claimant preferred the instant appeal. Heard both the counsel. The learned counsel for the appellant contended that there was no contributory negligence on his part and that any rate, the driver was more responsible, as he could have avoided the pothole. Learned counsel for the 2nd respondent contended that the award is not liable to be interfered with. The points for consideration in this appeal are (1) whether there was contributory negligence on the part of the claimant and if so, to what extent; and (2) To what amount of just compensation the claimant is entitled for. As regards point No. 1, as per the claimant, he was travelling in the tractor and that the driver drove the vehicle in a rash and negligent manner. In his evidence as P.W.1, he stated that at the time of accident, he was sitting by the side of the driver. The tractor ran over a pothole and in the impact, he fell down. He, therefore, sustained fracture on his right leg bone and injuries to his waist. The claimant filed Ex.A.1 – charge-sheet against the driver to show that the vehicle was driven in a rash and negligent manner at the time of accident. The evidence of the claimant himself as P.W.1 show that he was sitting by the side of the driver. His evidence also show that there was a trolley attached to the tractor in which, there were other persons. There is absolutely no reason as to why the claimant should travel by sitting beside the driver. By doing so, he has contributed to the incident. The Tribunal, therefore, is right in holding that there was contributory negligence on the part of the claimant. However, it has to be seen as to what was the extent of contributory negligence by the claimant to the incident, which had eventually caused injuries to him. Although the owner of the vehicle was impleaded as respondent No.1 and he filed counter, he did not adduce any evidence to support that the claimant was also responsible for the incident. Although he took the stand that there was no rash and negligent driving on the part of the driver, he had not examined him in support of the same. In such circumstances, it can safely be concluded that the vehicle was driven in a rash and negligent manner. No doubt, the claimant was sitting by the side of the driver, but that would not justify that the driving of the vehicle rashly and negligently. The conduct of a passenger does not justify the rash and negligent act of the driver. It is seen from the evidence of the claimant/P.W.1 that at the relevant places on the road, there were potholes and hence the driver should have been more careful while driving the vehicle. The driver should not have allowed the claimant to sit by his side. At the same time, there is no justification for the claimant to sit by the side of the driver. Having regard to the finding that the vehicle was driven in a rash and negligent manner, I am of the opinion that the primary cause for the injuries to the claimant was due to such rash and negligent driving on the part of the driver of the vehicle. The contributory negligence on the part of the driver is more when compared to the contribution of the claimant. Therefore, I am of the opinion that the driver of the vehicle contributed 75% to the accident and the claimant, by sitting besides the driver, has contributed 25% to the accident. As regards point No.2, the claimant filed Ex.A.2 – injury certificate which showed simple injuries. Ex.A.4 dated 24.02.1997 is the prescription from Dr.Ananth Bhaskar for appropriate treatment. Ex.A.5 is the report of the Radiologist and Ex.A.6 is the medical prescriptions. Ex.A-7, which consists of medical bills, show the total expenditure of Rs.12,902/-, and also show that the claimant was admitted in hospital on 24.02.1997 and discharged on 22.03.1997. Ex.A.8 is the blood transfusion record and Ex.A-9 is the discharge card from Mahaveer Hospital, Chandrapur. Both these exhibits show the injury on the lower abdomen indicating of fracture of pelvis. The Tribunal has awarded different amounts in respect of each injury. It has also awarded an amount of Rs.12,990/- towards medical expenses, an amount of Rs.20,600/- towards pain and suffering and a further sum of Rs.6,000/- towards loss of wages for four months at the rate of Rs.1,500/- per month. I am of the view that these amounts are reasonable and do not warrant any interference by this Court. The Tribunal awarded a total compensation of Rs.96,000/- and apportioned Rs.48,000/- each with a view that the contributory negligence to the incident was 50% by the driver of the vehicle and 50% by the claimant. But, having regard to the finding on point No. 1 that the driver of the vehicle was responsible for the accident to an extent of 75% and the claimant was responsible to an extent of 25%, I am inclined to order as follows. While maintaining the total compensation of Rs.96,000/- award by the Tribunal, the appellant/claimant is entitled to a sum of Rs.72,000/- instead of Rs.48,000/-, as apportioned by the Tribunal. The claimant is therefore entitled for additional compensation of Rs.24,000/- over and above Rs.48,000/- awarded by the Tribunal along with interest at the rate of 6% per annum on the enhanced amount from the date of petition till the date of realization. Accordingly, the award dated 07.11.2000 made in O.P.No.134 of 1998 by the Motor Accidents Claims Tribunal – cum – Additional District Judge, Adilabad, stands modified to the extent indicated above. The Civil Miscellaneous Appeal is allowed in part. There shall be no order as to costs. ________________________ JUSTICE NOUSHAD ALI January 22, 2010 Bvv