1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ** S.B.CIVIL MISC. APPEAL NO.1134/2000 (Musbin Bano Vs. Parshoo Ram Choudhary and ors.) Date of Judgment : 11-08-2009 HON'BLE MR.JUSTICE GUMAN SINGH Mr.Vizzay Agrawal,for the appellants. Mr.Virendra Agrawal, for the respondents. Heard learned counsel for the parties. 2. This appeal has been preferred on behalf of appellant-injured Mubin Bano for enhancement of compensation awarded by the learned Motor Accident Claims Tribunal, Jaipur city, Jaipur vide judgment dated 17.4.2000 whereby a total sum of Rs.16,625/- was awarded after deducting 50% for contributory negligence at the part of the injured-appellant. 3. The brief facts of the case are that the accident took place on 18.10.98 at 1.30 PM while injured Mubin Bano was crossing the road along with her two minor kids near Ghat-gate, Jaipur after getting down from a mini bus on the road. She was dashed by the RSRTC Bus No. RJ-25P-0239 which was being driven rashly and negligently. 2 4. Learned counsel for the appellant submits that the learned Tribunal has failed to appreciate the evidence in right perspective while deciding 50% contributory negligence at the part of injured-appellant. It is submitted that contributory negligence at the part of injured-appellant cannot be attributed as she was simply crossing the road along with her two small kids after getting down from mini bus and it was the duty of the driver of RSRTC bus to see that he may not hit a lady who was crossing the road along with her two small kids but he failed to do so on account of his rash and negligent driving. It is also submitted that a sum of Rs.30,000/- has been awarded by way of lump sum while the loss of income should have been calculated by adopting appropriate multiplier commensurating with the percentage of disability. 5. Per contra, learned counsel for the respondents supported the judgment of the Tribunal and submitted that the learned Tribunal has taken into consideration evidence adduced during inquiry and has awarded adequate compensation and calls for 3 no interference. It is also submitted that the finding on contributory negligence at the part of injured-appellant is also called for no interference as the injured-appellant is not found liable. 6. On hearing rival contentions, and going through the award as also record of the case, it is revealed that injured-appellant Mubin Bano, aged 35 years was crossing the road along with her two small kids after getting down from mini bus and was dashed by the driver of RSRTC bus as he failed to avoid the accident by keeping the speed of bus in control and applying the brakes at an appropriate time. The liability of contributory negligence can only be aportioned when a person had an opportunity to avoid accident but failed to do so. In this case, the opportunity to avoid accident was with the driver of RSRTC bus and it was his duty to ensure that he may not hit any person crossing the road on the busy pub lic way. Thus the finding of contributory negligence at the part of injured is unsustainable and same is set aside. As regards the quantum of compensation, sum of 4 Rs.6048/- deserves to be additionally awarded by computing the loss of earning on account of 3% disability by taking daily earning of the deceased to be Rs.35/- and by adopting multiplier of 16 commensurating with the percentage of disability and thus total amount of compensation can be computed as under: Rs.6048+Rs.33250(already awarded)=Rs.39,298- (minus)Rs.16625(already paid)=Rs.22,673/-(to be additionally paid) 7. Accordingly, appeal of the appellants is partly allowed and the Award passed by the learned Tribunal is modified to the extent that the appellants shall get a sum of Rs.22,673/-by way of additional enhanced compensation from the date of appeal i.e. 1.8.2000, with 6% interest to be paid within three months. Thereafter interest shall be paid @9% per annum. The rest of the terms of award shall remain unchanged. Record be sent forthwith. (GUMAN SINGH),J. Sandeep/- item no.h-40