---------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO (MVA) No. 292 of 2005. Decided on: April 9, 2010. Het Ram Dardi. …… Appellant. Versus H.R.T.C and others. …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? No. For the appellant : Mr. Ramakant Sharma & Ms. Anita Dogra, Advocates. For the respondents: Ms. Archana Dutt, Advocate, for respondent No.2. None for respondents No.1 & 3. Surinder Singh, J (oral). The appellant a Bank employee, was injured in the motor vehicular accident. He felt dissatisfied by the award passed by the learned Motor Accident Claims Tribunal, as such, preferred the instant appeal under Section 173 of the Motor Vehicles Act, 1988, in short ‘the Act’, challenging the award dated 19.5.2005, whereby the learned Tribunal held that the appellant was only entitled to the 50% of the total compensation to the tune of Rs.30,000/-, on the basis of the contributory negligence. I have heard Shri Ramakant Sharma, learned counsel, duly assisted by Ms. Anita Dogra, learned counsel for the appellant and Ms. Archana Dutt, learned counsel for - 2 - respondent No.2. Counsel for other respondents were not present. The petitioner filed a petition under Section 166 of the Act alleging that on 15.9.2003, he was going on his scooter No.HP-12-5231 to ‘Sai-Tali’ from Nalagarh, his niece Kumari Anju (a minor) was a pillion rider. On the way, near Harraipur, he took the pass from HRTC bus bearing registration No.HP-12-4059, which was being driven by respondent No.2. When the scooter crossed said bus and could cover few yards ahead, the driver of the bus (respondent No.2) rashly and negligently hit his scooter on its back. The appellant and Kumari Anju fell on the road alongwith the scooter. Anju died on the spot. Both the arms of the appellant got fractured. He was immediately taken for his medical treatment to Rural Hospital, Nalagarh, from where he was referred to PGI, Chandigarh for his further treatment. Respondent No.2, the driver of the bus got registered FIR No.110/03 under Sections 279, 337 and 304-A of the Indian Penal Code against the appellant in Police Station Barotiwala. The appellant alleged that he had suffered the permanent disability and claimed the compensation to the tune of Rs. 3 lacs. The respondents resisted and contested the petition filed by the injured petitioner. HRTC filed its separate reply and denied the rash and negligent act of driving by respondent No.2. Respondent No.2, in his reply specifically - 3 - alleged that the accident took place on account of the rash and negligent driving of the scooterist. It was also pleaded that the child was in front on the foot rest of the scooter while the petitioner was driving the said scooter. At the relevant time, the bus had stopped at village Harraipur for dropping the passengers. The petitioner on account of his rash and negligent driving could not control his scooter and struck against the stationery bus from behind, causing the accident, thus the FIR was lodged against him. On the pleading of the parties, the learned Tribunal framed the following issues:- 1. Whether on 15.9.2003 at 5 PM at village Harraipur, the respondent No.2 was driving bus No.HP-12-4059 rashly and negligently and as such caused multiple injuries to the petitioner? …OPP. 2. If issue No.1 is proved, to what amount of compensation, the petitioner is entitled to and from whom? … OPP. 3. Relief. After the complete trial, the learned Tribunal held that there was a contributory negligence of the petitioner to the accident to the extent of 50%, as such, out of the total amount of Rs.60,000/-, he was awarded compensation to the tune of Rs.30,000/- with interest @ 9% p.a. from the date of petition, i.e. 19.5.2005. - 4 - The award is now challenged on the ground that the petitioner had suffered 45% of permanent disability of both the arms and also that it was not a case of contributory negligence, thus, insisted upon the compensation to the tune of Rs.3 lacs, as originally claimed in the claim petition. Learned counsel for respondent No.2 supported the impugned award and argued that there is no ground for enhancement. I have considered the rival contentions and carefully gone through the evidence on record. The petitioner is an employee of Punjab National Bank. He did not produce the bills of medicines and other expenses incurred in his treatment. He is a salaried man and must have got the reimbursement of the medical expenses. He, when examined before the Tribunal, did not utter even a single word that his working capacity was affected in any way and monthly salary was reduced and also that his promotional avenues decreased because of the injuries caused to him in the accident. Of course, in the said accident, he had suffered fracture of his both the arms and he is stated to have spent Rs.6,500/- on transportation by Taxi to the hospital. The disability certificate Ex.PX issued by the Handicapped Board shows 45% disability in relation to bilateral upper limb, but not with respect to the whole body. A perusal of the certificate reveals that the disability was moderate. Although, petitioner stated in his affidavit produced in examination-in-chief that he - 5 - spent a lot of money on his treatment, but he did not produce any proof to substantiate his plea. The learned Tribunal came to the conclusion that Rs.60,000/- could be the damages under non-pecuniary head. But keeping in view the statement of RW1 Sohan Lal, the Investigating Officer that the accident had taken place on account of rash and negligent driving by the petitioner and also the fact that a case was registered against him, for which the petitioner was facing the trial and further RW-3 Ram Lal stated that the bus had stopped to deboard the passengers, which fact from the evidence appeared that it was not a stoppage and also the fact that RW4 Sher Singh and RW5 Prem Mohammed stated that the deceased minor was on the foot rest of the scooter and it was the petitioner, who hit the bus from the backside. Thus, from the facts proved on record, the negligence was attributable to both i.e. the scooterist as well as of the driver of the bus. Thus, it rightly apportioned 50% to each of them. In the above circumstances, I do not find any ground for enhancement of the awarded amount to the petitioner. As such, the appeal is dismissed. Parties are left to bear their own costs. (Surinder Singh ) Judge April 9, 2010. (Pds)