1 S.B.CIVIL MISC. APPEAL NO.1675/1999 (Smt.Shanti Devi Meena and ors. Vs. Harphool and ors.) Date of Judgment : 12-02-2009 HON'BLE MR.JUSTICE GUMAN SINGH Mr.Sandeep Mathur,for the appellants. Mr.Virendra Agarwal, for the respondent- Ins.Company. This appeal has been preferred on behalf of the dependents of deceased Phool chand Meena for enhancement of compensation awarded by the learned Motor Accident Claims Tribunal, Jaipur city, Jaipur vide judgment dated 22.9.1999 whereby a sum of Rs.2,23,000/- was awarded by way of compensation out of total assessed amount of RS.4,46,000/- on account of contributory negligence of the deceased. 2. The claimant-appellants have preferred this appeal on the ground that the learned Tribunal has failed to appreciate the evidence in proper perspective on the point of negligence by giving finding of 50% contributory negligence on the part of the deceased-Motor Cyclist. 2 3. Briefly stated the facts of the case are that on 21.9.98 at about 10.00 a.m. in the morning, deceased Phool Chand was going from village Rooppura towards village Sambhariya on his motor cycle and he met with an accident with bus No.RJ-14P-1921 coming from opposite direction at Sambhariya turn. The accident was reported at P.S. Shivdaspura where case was registered under Sec.279 and 304A IPC. 4. Learned counsel for the appellant- claimants submits that two eye witnesses to the occurrence have been produced in the evidence i.e. AW-3 Ramavatar and AW-2 Devi Narain Meena. They have supported the fact that the accident took place on account of rash and negligent driving of roadways bus driver as the bus was very fast even on turn which resulted in the accident. It is further submitted that there has been no contributory negligence on the part of the deceased. 3 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 no interference. It is further submitted that as per site inspection map, accident took place in the middle of road and, as such, it is clear cut case of contributory negligence. He has placed reliance on WLC 2008(2) 369 (Renukadevi Vs. Bangalore Metropolitan Transport Corporation Etc.). 6. After hearing the rival contentions, and going through the award as also record of the case, it is revealed that accident took place at the turn of village Sambhariya where there were tea shops and as such, the presence of AW-3 Ramavatar can be stated to be natural. Other witness AW-2 Devi Narain is stated to be sitting in the bus. Both the witnesses have deposed that it was the bus driver who was rash and negligent in driving the bus and caused accident. To controvert the aforesaid evidence, Harphool NAW-1, driver of the roadways bus has been produced 4 who has deposed that bus was stationary and the motor-cyclist came from opposite direction and dashed it. But this version of the driver who has been produced in defence appears to be after thought as no such defence was suggested to eye witnesses in cross examination and thus does not depict actual incident. On the basis of evidence and on perusing the site inspection map, there is nothing to infer that motor cyclist was at fault and had contributed to the negligence causing accident. Therefore the finding of the learned Tribunal on issue no.3 that the deceased contributed to the accident to the extent of 50% is unsustainable and the same is set aside. The appellant claimant is found to be entitled to 100% of the amount of compensation. 7. Accordingly, appeal of the appellant- claimants deserves to be accepted. Consequently, appeal is allowed and the Award passed by the learned Tribunal is modified to the extent that the appellant shall also get the remaining sum of compensation amounting to Rs.2,23,000/- from the date of appeal i.e. 29.11.99, with 6% 5 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