NOUSHAD BABU Vs. T MOHANAN

JUDGEMENT

(1.) This appeal is preferred against the award of the Motor Accidents Claim Tribunal, Tirur in O.P. (MV) 598/2004. The claimant, a 22-year-old electrician by profession sustained injuries in a road accident and the Tribunal fixed the contributory negligence of 50% on him and awarded a total compensation of Rs. 90,000, deducted 50% and thus the claimant was awarded a sum of Rs. 45,000. It is challenging the negligence as well as the quantum the claimant has come up in appeal.

(2.) Heard the Counsel for the appellant as well as the Insurance Company. A perusal of the award would reveal that the claimant was riding a bike from west to east. He was riding on a road which was having 5 mtrs. width and the accident had taken place 1.5 mtrs. north of the southern tarred end which means not the correct side of the motorcyclist. The Trial Court disbelieved PW1 for the reason he had not seen the accident. The claimant's evidence was also looked into along with the evidence of PW3 and PW4. PW3 is the person who had shown the place of accident and he would depose before Court that he had not shown the southern region as the place of accident.

(3.) PW4 is the officer who had prepared the scene mahazar. He had been examined as a witness by the claimant. He had stated that PW3 has shown him the place of accident and therefore he had demarcated the same. If you go by the scene mahazar the motorcycle is on the wrong side. The Court also did not believe the case that jeep came in a rash and negligent manner while overtaking a vehicle had hit on the motorcycle. One thing has to be stated in road accident unless there are definite tyre marks it may not be possible to locate the real place of accident for the reason when an accident is about to take place in the anxiety to avert the accident the vehicle coming from both the directions may change the side to avert the accident and therefore the position of the vehicle after the accident cannot be considered as the real place of accident. Now whatever it may be here is a case where the accident had taken place on the southern portion of the road. So there is negligence on the part of the claimant. At the same time it is a settled principle that when a heavy vehicle is being driven and when it is compared with a two-wheeler the responsibility is more on the driver of that vehicle than on the lighter vehicle. So applying that principle I am inclined to apportion the negligence at 60% on the jeep driver and 40% on the claimant. Or in other words the contributory negligence is fixed at 40%.