the phone and the Appellant/Claimant was sat on the motorcycle, non-applicant No.1 – Shaqir @ Arshad Ahmad was driving the offending vehicle Indica Car in a rash and negligent manner dashed motorcycle in which the Appellant was sat. As per Ex.-P/1 -Charge-sheet, Ex.-P/2 – FIR, it is mentioned that offence under Sections 279, 337 and 338 of IPC was registered against non-applicant No.1 by the police. FIR goes to show that it is the non-applicant No.1 who was driving the offending vehicle in a rash and negligent manner which resulted in unfortunate accident. Further, non-applicant No.1 - Shaqir @ Arshad Ahmad was not examined before the Tribunal. The Claimants was the pillion rider of the motorcycle and was sat on the motorcycle which was parked on the divider of the road, only on the basis of this, it would not be justifiable to hold the Claimant responsible for the accident to any extent. The finding of the Tribunal regarding contributory negligence of the Claimant appears to be based on mere presumption and surmises. Therefore, considering overall facts and circumstances of the case and nature of quality of evidence adduced by the parties, this Court is of the view that the Tribunal has not justified in holding the Claimant contributory negligence to the extent of 25% and according, it is held that the accident occurred due to negligence on the part of non-applicant No.1 only.
