MALLESHA @ MALLESHAPPA S/O SIDDAPPA Vs. SRI S.S. JAGADEESH S/O LATE S.G. SHIVASHANKARAIAH AND THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) THE appellant was the petitioner in MVC 725/2003 on the file of the I Additional Motor Accident Claims Tribunal at Chitradurga. He had filed the said petition under Section 166 of the Indian Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by him in a motor vehicle accident which took place on 1.6.2003 near Siddapura bus -stand of Chitradurga Taluk on account of alleged rash and negligent driving of the bus bearing Reg. No. KA -14/A -8595 by its driver. The respondents were the owner and insurer of the said vehicle. It was averred that he has suffered loss on account of the Injuries sustained in the said accident which should be compensated by the respondents. The 1st respondent -owner remained absent and was placed ex parte by the tribunal. The respondent - Insurance Company contested the claim petition denying the averments made in the claim petition. Based on the pleadings of the parties, the tribunal raised the following issues for Its consideration:

(2.) APPELLANT got himself examined as PW. l and examined the doctor who treated him as PW. 2. Exs. P1 to P14 were marked in his evidence. On behalf of the respondents, other than marking Ex. R1 by consent, no other evidence was placed on record. Considering the evidence on record, the tribunal answered the issue relating to rash and negligent driving of the bus by its driver, partly in the affirmative. It held that there was contributory negligence on the part of the claimant to an extent of 25%, he having travelled by standing near the back door of the bus. On assessment of the injuries sustained and the resultant loss, total compensation of Rs. 79,950/ - with interest at 6% p.a. was awarded. This appeal is filed against the said award inter alia contending that, the finding with regard to contributory negligence is erroneous and that the assessment of compensation is not just and correct.

(3.) LEARNED Counsel for the appellant contended that, the finding of the tribunal with regard to contributory negligence Is contrary to the stand of the appellant/petitioner to the effect that the accident took place due to the opening of the back door of the bus on account of which, though he was seated, fell down on the road side and sustained grievous Injuries. Learned Counsel contended that, the finding of the tribunal that, the appellant has travelled by standing near the back door of the bus, Is without any material support and hence, is wholly erroneous. Hence, it was contended that, the deduction in the award, 25% on the Compensation determined is, illegal. It was further contended that, the amount assessed and awarded under the heads 'pain and suffering', 'medical expenses', 'loss of income during the period of treatment and recovery' as well as 'loss of future earnings', is not Just and correct. He submitted that, this Court may re -assess the evidence and modify the impugned Judgment and award and to allow the claim in full.