INDER SEN ISRANI, J. - (1.) THIS appeal under Section 110 -D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') against the award dated 14 -9 -1981 passed by the Motor Accident Claims Tribunal, Jaipur in M.A.C.T. Petition No. 161/80, by which a sum of Rs. 49100 was awarded to the appellant, along with interest at the rate of 10%p.a. from the date of petition till the payment was made to the appellant.
(2.) IT will suffice to state for the purpose of this appeal that the accident took place on 17 -5 -1980 at about 8 -30 P M while the claimant appellant was coming on a scooter along with PW 4 his sister -in -law and a child who was standing in front of the appellant on the scooter The appellant was driving his scooter from Pink City Petrol Pump to Ajmer Road opposite Vidhayakpur, Police Station, Jaipur, P.W. 4 Sushila was sitiing on the pillion of the scooter. It is averred in the claim petition that the appellant was driving the scooter cautiously on the correct side of the road When he went ahead about 100 yards from the said police station, truck No. RSG 8942, which was driven rashly and negligently, collieded with the scooter, which resulted in grevious injuries including fracture to the appellant. Child Alka died on the spot in the accident and the pillion driver PW 4 Sushila also received injuries. There is no controversy regarding the amount of Rs, 73,650/ -awarded to the appellant, but the contention of the learned Counsel Shri S.C. Srivastava appearing for the appellant is that the trial court held the appellant to be responsible for contributory negligence and deducted l/3rd amount on this account from the amount of award. Therefore, the appellant in fact received only Rs 49,100/ -. It is asserted by the learned Counsel that it is. clear from the evidence that the appellant was driving his scooter 6 -7 ft. on left side from the middle line of the road and the truck came on wrong side and collided with the scooter, which resulted in the accident. It has also come in evidence that the scooter was at the distance of about 3 ft. from the end of the road. In these circumstances, it is contended that the appellant cannot be held responsible for contributory negligence merely because a child was standing in his front when he was driving the scooter. It is also contended that the defence theory of the respondents that a portion of the road was blocked on account of stones lying there or a cyclist taking sudden turn, on account of which the accident took place cannot be relied upon and it was raised during the cross examination merely to avoid the responsibility of the accident. It is also contended that the liability of the Insurance Company in this case is unlimited as Section 1 of the policy regarding limit of liability of the company is vacant. Reliance in this respect was placed on Bomanji Rustomji v. Ibrahim Vali and Ors. : AIR1982Guj112 in which it was held that when the insurance policy limits the liability on account of death or bodily injuries to Rs. 50,000/ -, but the column is kept blank, in such circumstances, the liability of the company shall be held to be unlimited regarding payment of compensation to the claimant. The same view was taken by this Court in the matter of Smt Darsani Devi and Ors. v. Shivram and Ors. 1987 R.L.R. 577. It is also contended by the learned Counsel that the appellant should have been awarded interest at the rate of 12% p.a. and therefore, the amount of interest be also increased to that accident.
(3.) SHRI Man Singh, learned Counsel appearing for the respondent No. 1 contends that even though the fact of stones lying on the road was not mentioned in the written statement, however NAW -1 Shyam Beharilal driver of the truck and NAW -2 Damodar have stated in their evidence that stones were lying on the road on account of which the truck driver had to cross the middle line of the road. It is further stated that the trial court has rightly held the appellant to be responsible for contributory negligence and deducted l/3rd amount from the compensation on this account, as even Sushila who was sitting on the pillion of the scooter has stated that Baby Alka was about 4 ft. in height and was standing in front of the appellant who was driving the scooter, therefore, he could not see the road in the front on this account. It is, therefore, contended that in such circumstances, the trial court has rightly deducted l/3rd amount from the compensation and held the appellant to be responsible for contributory negligence. He further contends that in such circumstances, the appellant should be held to be responsible for contributory negligence to the extent of 50% of the compensation awarded to him. He, therefore, prays that the amount awarded to the appellant should be reduced to that extent.;