RAMA BOMMAYYA NAYAK Vs. VALAYA TODIYAL MOHAMMED

JUDGEMENT

(1.) THIS appeal is directed against the judgment and award dated 17. 9. 1988, delivered by Mr. Ramakrishna, District Judge/motor Accidents Claims Tribunal, Uttara Kannada, Distt. Karwar, in Motor Vehicles Case No. 116 of 1985, holding that the petitioner is entitled to total compensation of Rs. 1,27,000, but as petitioner's contributory negligence was also there, he may be entitled to be awarded and to grant only 50 per cent of the amount of compensation awarded, due to his negligence which was found to be 50 per cent. It held that petitioner is as such, entitled to get a sum of Rs. 63,500, as compensation out of Rs. 1,27,000 and it held that the respondent Nos. 1 to 3 in the claim petition have been jointly and severally responsible to pay the amount of compensation.

(2.) THERE is no dispute about assessment of quantum of damages as assessed by the Tribunal to be to Rs. 1,27,000 in total. The appellant's counsel has only challenged the finding of deduction of the compensation by 50 per cent, on the basis of finding recorded by the Tribunal as to contributory negligence. The learned Counsel for the appellant contended before me that the finding recorded by the tribunal that there was contributory negligence of the claimant-petitioner as well along with negligence of the driver of the lorry, is incorrect. The learned Counsel for the appellant has taken me to the statements of PWs 1, 2 and 3, on record. I have perused the statements of these witnesses. The learned Counsel for the appellant further contended that, even if without conceding, it be taken that there was contributory negligence on the part of the petitioner, the Tribunal divided it to 50:50, though the greater responsibility is on the drivers of the heavy vehicles in comparison to the drivers of the light vehicles and the learned Counsel for the appellant made a reference to certain observations of the tribunal itself and contended that in such case, this Court may reduce the proportion of contributory negligence from 50 per cent to 25 per cent.

(3.) AS regards the first contention of the learned Counsel for the appellant, in my opinion, there is not much substance as per perusal of the record. In the statement-in-chief, the PW 1 states that on the date of the accident, his motor bike bearing no. MYE 2853, was moving from Sonagamakki to Ankola. When he reached a cross near Belse which adjoins the national highway, a truck from Ankola side came and dashed his motor cycle. The truck came in a wrong side with a high speed and dashed his motor cycle. PW 1 has nowhere stated that when he was taking the turn towards his right side, that is, towards the national highway from the Ankola side, he slowed his speed in order to first see that no vehicle is coming from the northern side. It appears that the appellant when coming from sonagama-kki, he without slowing the speed for a second and watch carefully, if any vehicle was coming from the Ankola side or not, tried to take the turn. PW 2, in the cross-examination, has stated that the said Sonagamakki Road adjoins N. H. 17, on the left side from the direction of Karwar to Kunta. To go to Ankola, one should cross N. H. 17 and then proceed. He has also stated in his cross-examination as: I have stated in my complaint that PW 1 was coming from Sonagamakki side which was adjoining N. H. 17, that accident took place on the right side of the road from Karwar to Kunta and when PW 1 was about to approach the road, the truck was at a distance of 100 feet to reach N. H. 17. From Sonagamakki Road, there is a down gradient. It is not true to say that a person coming to n. H. 17, from Sonagamakki Road, is not able to see the vehicle coming from Karwar side, until he reaches the main road.