DR.PUSHPENDRA SINGH BHATI, J. - (1.) The instant misc. appeal has been filed by the appellant/claimant claiming the following reliefs :- ' It is, therefore, humbly prayed that appeal may kindly be allowed and finding in respect of negligency and amount of compensation may kindly be modified and claim petition may kindly be allowed in toto and amount of compensation may kindly be enhanced.'
(2.) The unfortunate accident happened on 27.3.1996 when the claimant was going towards Devli from Jahajpur on a scooter and met with an accident with truck bearing No. RJ-20/G-908 which was being driven rashly and negligently. As a result of this accident, the appellant/claimant suffered grievous injuries.
(3.) Learned Counsel for the appellant/claimant submits that while deciding the issues No. 1 and 4, the learned Tribunal has arrived at the conclusion that there was 50% contributory negligence of the scooter driver whereas the truck driver has not even been examined. Learned Counsel for the appellant points out that the scooter was being driven carefully and proper indicators were given for overtaking the truck and due to the sudden cut by the truck, the accident occurred. Learned Counsel for the appellant has relied upon the judgment of the Hon'ble Apex Court in the case of Jiju Kuruvila and Ors. Vs. Kunjujamma Mohan and Ors. reported in 2015(2) R.A.R. 182 (SC) wherein the Hon'ble Apex Court has held that without examining the erring driver, the Court cannot reach at a corroboratory evidence of contributory negligence of the vehicle in question. All the factors have to be taken into account to create a scene of the accident in front of the Court by reading the depositions made while taking into consideration the factors like, speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other etc. The direct and corroborative evidence has to be taken into consideration while drawing a conclusion of contributory negligence. Learned Counsel for the appellant has also relied upon the judgment of this Court in the case of Oriental Insurance Co. Ltd. Vs. Vijay Kumar Ratnani and Ors. reported in 2016(1) R.A.R. 258 (Raj.), relevant paras No. 15 and 16 whereof read as follows :- ' 15. Regarding negligence of driver of the offending Trolla, claimant Nishant Ratnani was examined as AW.2 who has deposed that on the day of occurrence he was traveling along with his father and mother from Jaipur to Ajmer in car No. RJ-01- CA-2064. Then on the way, the driver of the offending Trolla without giving any indicator brought his Trolla from second lane to first lane due to which the rear portion of the Trolla hit the front portion of the car, due to which the car was damaged and he along with his father and mother sustained injuries due to which both his parents died. It is to be noted that regarding the accident F.I.R. Ex.2 was registered immediately at Police Station, Dudu on the basis of a written report (Ex.3) submitted by Dr. S. Datta. The report also disclosed the fact that due to the rash and negligent driving of the offending Trolla accident had occurred in which Dr. Raju Ratnani and Smt. Meena Ratnani died. The site plan (Ex.4) prepared by the police also shows that the driver of the Trolla brought the same from second lane to first lane. Thus, from the oral as well as from the documentary evidence it is clear that the accident took place due to the rash and negligent driving of the Trolla and the learned Tribunal has not committed any illegality in recording its finding that the driver of the Trolla was responsible for the accident. 16. It is also to be noticed that since the appellant insurance company failed to bring the driver of the Trolla to the witness box to give evidence and face cross-examination of the claimants despite allegation of rash and negligence driving levelled against him adverse inference against the appellant should be drawn and thus, this Court would not be justified in entertaining the plea of contributory negligence on part of the deceased Raju Ratnani. The position would have been different if from the evidence given by the witnesses for the claimants themselves it would appear that there had been some contributory negligence on the part of the deceased. Such being not the case, it is a fit case of drawing adverse inference against the appellant Insurance Company and the argument of the learned Counsel for the appellant Insurance Company is devoid of merit. A reference can be placed on the observations made by the Apex Court in its judgment in the case of Vidhyadhar Vs. Manikrao and Ors. (AIR 1999 SC 1441) wherein the Apex Court has as under:- ' 16. Where a party to the suit d es not appear into the witness box and states his own case on oath and d es not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh Vs. Gurdial Singh and Anr. This was followed by the Lahore High Court in Kirpa Singh Vs. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari Vs. Radhabai Krishnarao Deshmukh, AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter Vs. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh Vs. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass Vs. Bhishan Chand and Ors., drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.' Learned Counsel for the appellant has further referred to the disability certificate issued by the Mahatma Gandhi Hospital, Bhilwara which indicates permanent disability to the tune of 25%. ;