- (1.) [1.0] Feeling aggrieved and dissatisfied with the impugned and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Mehsana (hereinafter referred to as "the tribunal") in MACP No.795/2005 by which after deducting 10% towards the negligence of the original claimant and deducting 60% towards the negligence of the original owner of the Motorcycle involved in the accident the learned tribunal has awarded a total sum of Rs.10,200/- towards compensation for the injuries and the permanent partial disability sustained by the original claimant with 7.5% interest thereon from the date of the Claim Petition till realization, the original claimant has preferred the present First Appeal.
(2.) [2.0] In a vehicular accident which occurred on 22/08/2005 between Motorcycle No.GJ 2 AA 5546, which at the relevant time was being driven by the original claimant-minor and one Jeep No.GJ 2 R 3829, the original injured claimantdriver of the Motorcycle sustained injuries and permanent partial disability to the extent of 7% on the body as a whole, and therefore, the original injured claimant, through his father, filed the aforesaid Claim Petition before the learned tribunal claiming a total sum of Rs.1 lakh towards compensation. [2.1] On appreciation of evidence, the learned tribunal has as such held the driver of the Jeep involved in the accident sole negligent for the accident. On appreciation of evidence, the learned tribunal has determined Rs.34,000/- towards compensation under different heads. However, as the original injured claimant-driver of the Motorcycle was not holding the valid license to drive the Motorcycle and the original owner of the Motorcycle-father of the original claimant permitted his minor son to drive the Motorcycle though he was not having a valid driving license, the learned tribunal has deducted 10% and 60% respectively towards their negligence and by the impugned judgment and award has actually awarded Rs.10,200/- being the remaining 30% with 7.5% interest thereon from the date of Claim Petition till realization. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned tribunal on quantum as well as deducting 70% towards negligence, the original claimant has preferred the present First Appeal.
(3.) [3.0] Shri Y.M. Thakore, learned advocate appearing on behalf of the appellant-original claimant has vehemently submitted that the learned tribunal has materially erred in deducting 70%, out of the total compensation awarded, on the ground that the original injured claimant was not having valid driving license to drive the Motorcycle and on the ground that even the original owner was negligent to the extent permitting his son to drive the Motorcycle, though he was not having valid driving license to the drive the Motorcycle. It is submitted that on the aforesaid ground the learned tribunal ought not to have and / or could not have deducted 70% towards negligence. It is submitted that as such the learned tribunal has held the driver of the Jeep involved in the accident sole negligent for the accident. It is submitted that therefore once the driver of the offending vehicle / Jeep is held to be sole negligent for the accident, the original claimant is entitled to full compensation from the driver owner and insurer of the Jeep involved in the accident. [3.1] It is vehemently submitted by Shri Thakore, learned advocate appearing on behalf of the original claimant that while awarding compensation either in case of death and / or injury only that much amount i.e. percentage of amount is required to be deducted for which the deceased and / or the injured is held to be negligent / contributory negligent. It is submitted that once the driver of the offending vehicle i.e. Jeep is held sole negligent in the accident, the learned tribunal is not justified in deducting any amount or percentage of amount on the ground that the driver of the Motorcycle i.e. in the present case the original injured claimant (who is as such not held to be negligent at all) was not holding any valid driving license and / or deducting 60% towards the negligence of the owner of the Motorcycle in permitting his minor son to drive the Motorcycle though he was not holding any valid license to drive the Motorcycle. [3.2] Now so far as the quantum of amount of compensation is concerned, Shri Thakore, learned advocate appearing on behalf of the original claimant has heavily relied upon the recent decision of the Hon'ble Supreme Court in the case of Master Mallikarjun Vs. Divisional Manager, The National Insurance Company Ltd., 2014 14 SCC 396. It is submitted that in the aforesaid decision the Hon'ble Supreme Court was considering the issue with respect to compensation with respect to child victim and in the said decision the Hon'ble Supreme Court in paragraph 12 has observed and held that appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant etc. should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs and for permanent disability upto 10% it should be Rs.1 lakh, unless there are exceptional circumstances to take different yardstick. It is submitted that in the present case the permanent partial disability is less than 10%, and therefore, as per the decision of the Hon'ble Supreme Court the original claimant shall be entitled to Rs.1 lakh in all towards compensation. Making the above submissions, it is requested to allow the present Appeal.;