JESSY VARGHESE Vs. P A THOMAS

JUDGEMENT

(1.) CLAIMANT is the appellant. CLAIMANT along with her deceased husband was travelling in a car. That vehicle was involved in an accident. There was collision between a bus belonging to the K.S.R.T.C, which came in the opposite direction. The driver of the car, ie. the husband of the appellant, suffered injuries and succumbed to the same. The appellant suffered injuries. She claimed compensation for personal injuries suffered in the accident.

(2.) BEFORE the Tribunal, the contention that the driver of the K.S.R.T.C bus was negligent, was disputed. The Tribunal on evidence available before it came to the conclusion that the driver of the car was also negligent. The Tribunal apportioned liability at 25% - 75%. Accordingly the Tribunal held that the respondent KSRTC and bus driver are liable only to pay 75% of the loss suffered by the appellant.

(3.) REGARDING the question of negligence and the contributory negligence on the part of the deceased/driver of the car, ie. the husband of the appellant, we have already come to a conclusion while considering the challenge against the impugned common award that the driver of the KSRTC was entirely responsible for the accident. We extract below para.5 of the judgment dated 05.07.2011 in M.A.C.A No.2001 of 2010: "We have considered these contentions. The K.S.R.T.C bus driven by the second respondent and Maruti Zen car driven by the deceased were proceeding in opposite directions. The road at the scene of occurrence has a width of 7.40 metres. The accident took place at a spot 3.72 metres to the left of the right hand side kerb of the road. The deceased had thus swerved 2 centimeters to the right of the imaginary mid line. This was the sole reason that prompted the Tribunal to come to a conclusion that there was contributory negligence on the part of the deceased. The learned counsel for the appellants submits that this conclusion of the Tribunal is totally erroneous and unjustified. Merely because the spot of incident located in the scene mahazar is to a distance of 2 cms. to the right of the imaginary mid line, a ready and instant conclusion that the deceased was negligent should not have been drawn by the Tribunal, it is contended. It is further pointed out that the police, after investigation, have filed a charge sheet only against the second respondent. It is further pointed out that PW1 who was travelling along with the deceased had given evidence about the negligence on the part of the second respondent; whereas the first and second respondents had not chosen to adduce any evidence on the question of negligence. We are, in theses circumstances, satisfied that there is merit in the challenge raised against the conclusion that there was contributory negligence to the extent of 25% on the part of the deceased. That finding of fact is not justified by the materials on record. We vacate that findings. We hold that the claimants are entitled to recover the entire loss suffered by them from respondent No.1 and 2. The first point is thus answered in favour of the appellants."