{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.357/1995 MAHIPAL VS. SHYAM KUMAR & ORS. Date of order : 2.8.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. Mahendra Trivedi, for the appellant. Mr. R.K. Mehta, for the respondents. This is a misc. appeal filed by claimants under Section 173 of Motor Vehicles Act (for short called “the Act”) against an award dated 26.5.1995 passed by MACT, Banswara in Claim Case No.116/90. 2. By the impugned award, the Tribunal dismissed the claim petition of the claimant filed under Section 166 of the Act claiming compensation for the injuries sustained by him. 3. So the question that arises for consideration in this appeal is whether the Tribunal was justified in dismissing the claim petition of the appellant (claimant)? Facts are these: 4. On 12.4.90, claimant was going on his right side on the Moped from Khandu Colony to Banswara. When one Jeep bearing No.GUM -7785 which was coming from the opposite direction dashed him. He then fell down due to dash and suffered injuries which gave rise to filing of claim petition by the claimant { 2 } under Section 166 of the Act claiming compensation for the injuries sustained by him in the accident. It was filed against driver, owner and insurer of offending vehicle i.e. Jeep. It was contested by the non-applicants. According to them (NA-1/2), the claimant was negligent in his driving and it was due to his negligence, the accident occurred causing him injuries (if at all). It was, therefore, averred that in a case where the accident occurred due to negligence of claimant, then he is not entitled to claim any compensation from the non-applicants only because their vehicle was involved. The claimant examined himself whereas no one was examined by non-applicants to prove as to how the accident occurred. The Tribunal by impugned award dismissed the claim petition and held that claimant was responsible for causing the accident and hence he has no right to claim any compensation for the injuries sustained by him in such accident. 5. Having heard the learned counsel for the parties and on perusal of record of the case, I am inclined to allow the appeal and while setting aside of the award impugned in the appeal allow the claim petition in part and award reasonable compensation to the claimant. 6. I have perused the evidence with a view to find out as to whether any case on facts and evidence is made out for holding that claimant was responsible for causing accident or Jeep driver (NA-1). 7. At the outset, I may observe that non-applicants did not adduce any evidence in support of their defense. The best person who could have and should have entered into a witness box on behalf of non-applicants was the driver of Jeep which met with an accident. He was made party as NA-1. He also filed written statement explaining the manner in which accident occurred thereby throwing full blame on the claimant in causing accident. { 3 } However, for the reasons best known, he did not prove his defense and remained virtually ex parte. In the absence of any rebuttal evidence, the defense taken by the non-applicants in answer to the averments made in the claim petition so also the evidence adduced by claimant remained unrebutted. I am, therefore, inclined to draw adverse inference against the non-applicants for not adducing the best evidence though available and though allowed adequate opportunity to do so. It is a trite law that mere filing a written statement is not enough. Its contents are required to be proved by adducing oral and documentary evidence. In this case, it was all the more because the non-applicants did not simply deny the claim of the claimant but came out with a positive case explaining as to how the accident occurred and how the claimant was responsible in causing such accident. The burden was thus on them to prove such defense taken in the written statement. It was not proved at all. 8. Coming now to the case of claimant for finding out as to whether he was able to discharge his initial burden by proving that he was not negligent in driving his Moped but accident was caused due to the negligence of driver of Jeep (NA-1). Having perused the evidence, I find no hesitation in recording a finding in claimant's favour that claimant was not negligent in driving his Moped but it was the driver of Jeep who dashed the claimant. 9. In the first place, the claimant has specifically in para 10 and 12 of claim petition pleaded that accident occurred due to negligent driving of Jeep driver (NA-1). In his evidence being a sole eye witness, he has specifically deposed that he was going on his right side on the road when Jeep came from opposite direction very vast and dashed his Moped. I failed to appreciate what is there to disbelieve this eye witness. When the claimant has averred in the claim petition and has proved in evidence the negligence of driver of Jeep, then such statement has to be believed and { 4 } accepted. It is more so when non-applicants did not enter in witness box to rebut it. 10. Learned counsel for the respondent Mr. Mehta contended that negligence on the part of claimant stands proved by the evidence and documents filed by claimant and hence it was not necessary to prove any thing by non-applications. I do not agree to this submission for more than one reason. In the first place, I have not been able to notice any kind of admission to this effect made by claimant either in his oral evidence or documentary. Secondly, no other evidence except papers of criminal case are on record to prove this fact and lastly papers filed in criminal cases would not go to the extent of holding that claimant was responsible. In my opinion, it was obligatory upon the non-applicants to have proved their defense regardless of the evidence adduced by claimant in its rebuttal. In fact, in such cases, the rebuttal evidence is the only one which can be looked into while appreciating the case of the parties. It was not done. It is for these reasons, I do not accept the submission of learned counsel for the respondent. 11. In view of foregoing discussion, I while disagreeing with the finding of Tribunal, reverse the same and in consequence hold that claimant was not responsible for causing the accident but it was NA-1 i.e. driver of Jeep who was negligent in driving his Jeep which caused accident resulting in sustaining injuries by the claimant. 12. This takes me to the next question regarding injuries sustained by claimant and the compensation to be awarded to claimant for the injuries sustained by him. 13. I have gone through the evidence adduced by the claimant on the issue of injury sustained by him. In my opinion, taking into consideration the nature of injury, the extent of damage caused fracture in tibia fibula and nose and shortening of left leg { 5 } by 2” causing partial disability occurred in the body of appellant (claimant) as a result of which he claims to be not as fit as he was prior to accident in his day today work, resulting in reducing his capacity, the expenditure incurred in receiving medical treatment in actual for which he has filed number of medical papers, bills duly proved and to be incurred in future, the loss and mental pain / suffering suffered due to his involvement in accident and disability occurred, I consider it proper to award lump sum the compensation of Rs.50,000/- . In other words, in my view, the claimant is held entitled for a total sum of Rs.50,000/- by way of compensation for the injuries sustained by him. 14. The compensation awarded to the claimant is a just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases in relation to several heads taken note of supra with reference to evidence brought on record by the parties. Indeed in such cases, no fixed and any static formula as such is provided for determining the compensation and the same is required to be determined on the basis of totality of evidence adduced and the relevant factors which are required to be taken into consideration as mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation to the claimant for the injuries sustained. 15. Learned counsel for the appellant cited some authorities for claiming enhancement. I have gone through these authorities. In my opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation. Indeed taking into consideration these authorities and then applying the law so laid down to the facts of this case, I have arrived at the figure of enhanced compensation mentioned supra. { 6 } 16. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. The awarded sum mentioned in para 13 will carry interest at the rate of 6% p.a. from the date of application till realization. Counsel fees Rs.500/-, if certified. (A.M.SAPRE ),J. /Anil/