- (1.) This order shall dispose of FAO Nos.5178, 5179 and 4893 of 2011, as the same arise from the same accident. FAO Nos.5178 and 5179 of 2011 have been filed by the Insurance Company on the ground that in the circumstances of the case, it was not fair and just for the Tribunal to have fastened 100% liability on the driver of the tractor trolley. FAO No.4893 of 2011 has been filed by the claimant-Prem Kumar for enhancement of compensation. In this accident, Prem Kumar and Subhash Chand were injured. FAO Nos.5178-79 of 2011 Counsel for the Insurance Company has argued that even if the facts as pleaded in the claim petition are accepted as gospel truth, yet it has come on record that at about 2.30 AM at night, TATA 407 vehicle, being driven by Prem Kumar collided suddenly with the parked tractor trolley. As per the counsel, even if it was taken that the tractor trolley was wrongly parked on the middle of the road, TATA 407 vehicle cannot escape some liability. As per him, even at night the head lights of TATA 407 vehicle would illuminate the road for at-least 50 yards and if a person is carefully driving a vehicle, he would see that some vehicle has been parked at the road and would take evasive action accordingly.
(2.) Counsel for the respondents have argued that the owner and the driver had not only not taken any plea of contributory negligence but they denied the very accident. No evidence was led by them to prove this version and consequently, the same cannot be looked at by this Court. In the facts of the present case, I take the negligence to be 80:20 that is to say 20% liability of Prem Kumar driver of TATA 407 vehicle and consequently, the compensation awarded, as far as Prem Kumar is concerned, be reduced by 20%, while that of Subhash Chand would be apportioned between the two Insurance Companies in the proportion 80:20. Since the awarded compensation has been paid, the appellant-Bajaj Allianz Company would be entitled to recover 20% of the compensation paid for Subhash Chand from the ICICI Lombard General Insurance Company the insurer of TATA 407 vehicle. With this modification in the Award, FAO Nos.5178 and 5179 of 2011 stand disposed of. FAO No.4893 of 2011
(3.) This appeal has been filed by Prem Kumar-injured for enhancement of compensation. Counsel for the claimant has argued that the compensation awarded is highly inadequate. The claimant was 26 years old when he met with the accident in 2008 and has suffered 100% disability. This fact has not been denied. As per him, for 100% disability, a sum of Rs. 2 lacs had to be awarded and, therefore, it has to be held that nothing has been awarded on account of pain and suffering, loss of income, loss of amenities of life and attendant expenses both up-til now and for future medical treatment.;