JUDGMENT
A.M. Sapre, J.
1. This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act (hereinafter for brevity called “The Act“) against an award, dated 9th September, 2004 passed by learned 7th Motor Accident Claims Tribunal, Indore in Claim Case No. 271 of 2003. By impugned award, the learned Member of Claims Tribunal has partly allowed the claim petition of claimants and has accordingly awarded a total compensation of Rs. 3, 60,000 to the claimants for the injuries sustained by him in the accident. However, the Tribunal has held that claimant was equally responsible for causing the accident in question to the extent of 50% and hence, applying the principle of contributory negligence, reduced the compensation to the extent of 50% i.e. Rs. 2,35,000/-. It is against this award, the claimant has come up in appeal of intending that firstly the Tribunal erred in holding claimant to be responsible for causing the accident much less to the extent of 50% and secondly, what is awarded b the claimant for the injuries sustained by the claimant is on lower side and hence, it deserves to be enhanced.
2. Heard Mr. S.L. Nagar, learned Counsel for the appellant and Mr. Milind Phadke, learned Counsel for respondent No. 3, Insurance Company.
3. Having heard learned Counsel for the parties and having perused record of the case, we are inclined to allow the appeal in part and modify the impugned award to some extent as indicated infra.
4. It is an injury case. On 31st January, 2003 when claimant was going on his motorcycle; the offending vehicle-truck, bearing No. MP-09-D-6951 owned by non-applicant No. 1 and driven by non-applicant No. 2 dashed to claimant due to which he sustained multiple injuries on his body. It is this incident which gave rise to filing of claim petition by the claimant out of which this appeal arises seeking compensation for the injuries sustained, medical expenses incurred and disability occurred due to injuries. Neither non-applicant No. 1, nor non-applicant No. 2 i.e. owner and driver of the offending vehicle contested the case and remained ex parte. The non-applicant No. 3 i.e. Company filed the written statement. Parties adduced evidence. As observed supra, the Tribunal by impugned award partly allowed the claim petition. It is against this award, the claimant is in appeal.
5. We have gone through the evidence adduced by parties. The claimant has examined himself as P.W. No. 1 and one Yogesh (P.W. No. 3) as an eye-witness to the accident. Whereas non-applicant No. 1 i.e. driver of offending vehicle was examined by non-applicant No. 3; Having gone through the version of P.W. No. 1 i.e. claimant and that of Yogesh (P.W. No. 3), we are inclined to accept their version as against the version of non-applicant No. 1. It is for the reason that firstly the version of P.W. No. 1 is supported by an independent eye-witness (P.W. No. 3). Secondly, no independent eye-witness was examined by non-applicant though available on the spot as has come in evidence of witnesses. Thirdly, the version of non-applicant No. 1 being interested one is not acceptable. Fourthly, it is not supported by any documentary evidence as also not supported by any oral independent witness. Fifthly, non-applicant No. 1 has not given proper version of the manner in which the accident occurred. If according to him, truck dashed to claimant from front then, how claimant could be hit by rear tyre. His version thus does not inspire confidence and hence, we do not prefer to believe his version as against the sworn testimony of claimant which is duly supported by P.W. No. 3-Yogesh. Both these witnesses have deposed on oath that when claimant was going on his motorcycle at his right side, the truck came from opposite direction and hit the claimant who miraculously survived and only sustained injuries. We are inclined to believe this version and hold that claimant was not at all liable for contributing the accident in question and it occurred due to sole negligence of non- applicant No. 1. We thus upset the finding of the Tribunal on this issue and while reversing this finding in favour of claimant answer the same accordingly.
6. Coming to the next question regarding quantum of compensation already determined by the Tribunal. We are of the considered view that it is legal, proper and reasonable, calling no interference. In fact, having regard to the nature of injuries sustained, medical expenses incurred and disability occurred due to injuries, we feel that Tribunal was well justified in awarding a sum of Rs. 3,60,000 (para 12) towards compensation and further sum of Rs. 55,000 towards expenses and pain/sufferings. In all, thus the Tribunal awarded a sum of Rs. 4,15,000 to the claimants.
7. Since we have set aside the finding of contributory negligence in favour of claimant and hence, claimant is now entitled to claim whole awarded sum, awarded by the Tribunal referred supra. We do not find any case to further enhance the said awarded sum as in our view; it is on proper side calling no interference.
8. In other words, the claimant is held entitled for a total sum of Rs. 4,15,000 by way of compensation for the injuries sustained by the appellant.
9. The compensation awarded to the claimant is a just, reasonable and proper looking to the facts and circumstances of the crose and taking into account the law laid down by the Supreme Court in these types of cases. Indeed in such cases, no fixed and any static formula is provided for determining the compensation and the same is required to be determined on the basis of evidence adduced and the relevant factors mentioned supra. It is on this basis, the Courts have to work out award of reasonable compensation.
10. Learned Counsel for the appellant cited some authorities for claiming enhancement. We have gone through these authorities. In our opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation.
11. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. The enhanced sum will carry interest at the rate of 6% p.a. from the date of application till realisation. All other findings are upheld being not under challenge.
Counsel fees Rs. 1500, if certified.