- (1.) THIS appeal has been preferred by the appellant against the judgment and award dated 11.10.2006 passed by Motor Accident Claims Tribunal, Bhinmal (for short 'the Tribunal' hereinafter) in MAC Case No.26/2005, whereby while awarding the compensation of Rs.78,000/ -, the learned Tribunal has held that the appellant is entitled to receive 50% of the amount of compensation as determined along with interest at the rate of 6% per annum on account of his contributory negligence.
(2.) BRIEF facts of the case are that on 26.03.2004 at about 1:30 P.M., the appellant - claimant was driving a Jeep - Trolla bearing No. RJ - 16G -0205 and when reached near Kodi Railway Crossing, a Tanker No.RJ19 -G -4653 came from opposite direction and hit the Jeep Trolla, on account of which the appellant received injuries on his body. The Tanker No. RJ19 -G -4653 was being driven by respondent No.1 ­ Mangu Singh. In respect of the said accident, an FIR was lodged in which the police filed charge -sheet against the driver of the tanker, the respondent No.1 ­ Mangu Singh for the offences punishable under sections 279, 337 and 338 IPC. The appellant preferred a claim petition before the learned Tribunal alleging that the accident, in which the appellant received injuries, took place on account of rash and negligent driving of the driver of the Tanker No.RJ19 -G -4653. Before the Tribunal, the claim petition was contested by the respondent No.3 ­ Insurance Company only, in which the Insurance Company denied the claim of the appellant. On the basis of pleadings of the parties, the learned Tribunal framed issues and after appreciation of the evidence produced on behalf of the parties, has passed the impugned judgment and award dated 11.10.2006, whereby the learned Tribunal has determined the damages to the appellant to the tune of Rs.78,000/ - under the various heads but has held that the appellant is entitled to receive 50% of the amount of the determined damages on account of his contributory negligence. Being aggrieved with the impugned award, the appellant has filed this appeal.
(3.) THE learned counsel for the appellant has contended that though the learned Tribunal has not framed any issue in respect of the contributory negligence of the appellant, yet it has given a finding about the same without there being any evidence produced on behalf of the insurance company. It has also been contended by the learned counsel for the appellant that the appellant, by his evidence, proved that the accident took place on account of rash and negligent driving by the driver of the Tanker No.RJ19 -G -4653 and the respondent No.3­ Insurance Company has failed to rebut the said evidence of the appellant but despite this, the learned Tribunal has committed serious illegality in holding the appellant responsible for contributory negligence. It is also contended by the learned counsel for the appellant that the learned Tribunal, while placing reliance on the site plan Exp. -77, has held that the appellant was responsible for the contributory negligence. It is further contended by the learned counsel for the appellant that on the site plan, which was prepared subsequent to the accident, cannot be relied upon to conclude that the accident took place on account of contributory negligence of the appellant. In support of his claim, the learned counsel for the appellant has placed reliance on a decision of this Court in United India Insurance Co. Ltd. vs. Smt. Sugni Devi & Ors., reported in ACTC 2012(2) 1145 and has prayed that the impugned judgment and award dated 11.10.2006 passed by the learned Tribunal may be quashed and set aside up to the extent it has held the appellant responsible for contributory negligence.;