BINOJ ANTONY Vs. NEW INDIA ASSURANCE CO. LTD

JUDGEMENT

(1.) THE claimant in O.P.(M.V).No.414/2005 before the Motor Accidents Claims Tribunal, Perumbavoor, is the appellant herein. He suffered injuries to his head and left eye in an accident caused by the negligent driving of a vehicle insured with the respondent. The appellant filed the O.P. claiming compensation for the injuries and consequent disabilities suffered by him in the accident. The Tribunal, after finding negligence on both the motor cycle ridden by the appellant and the other offending vehicle, viz., a tipper lorry, apportioned the negligence in the ratio of 25:75 and assessed compensation under various heads as follows: <FRM>JUDGEMENT_1398_TLKER0_2013.htm</FRM> Out of the same, 25% was deducted on account of the contributory negligence found against the appellant. The appellant is challenging the findings of the Tribunal regarding contributory negligence on the part of the appellant and the quantum as well.

(2.) THE contention of the appellant is that the Tribunal assumed negligence on the part of the appellant only on the ground that the motor cycle ridden by the appellant was carrying two pillion riders. According to the appellant, the mere fact that two pillion riders were in the vehicle does not ipso facto spell out negligence on the part of the appellant, especially since the accident occurred 50 cms from the southern tar end of the road, while the appellant was going from east to west and the lorry was coming from the opposite side. According to the appellant, the reliance by the Tribunal on the decision of this Court in Pournami v. Sandhya Sudheer, 2008 (4) KLT 817, is totally misplaced.

(3.) ON the other hand, the learned counsel of the insurance company fiercely supports the award. According to him, when admittedly the appellant was riding the motor cycle with two pillion riders, it was the duty of the appellant to prove that the negligent act of carrying two pillion riders, which was prohibited by law, did not contribute to the accident. It is possible that the carrying of two pillion riders had contributed to the accident insofar as when there are two pillion riders, the appellant will not have the required balance to avoid a collision. Therefore, the Tribunal was right in relying on the decision in Pournami's case (supra) and fixing 25% contributory negligence on the part of the appellant is the contention raised.