JIKSON, S/O.PAILAN Vs. SANOJ K. PAUL

JUDGEMENT

(1.) THIS appeal arises from the award dated 01.09.2012 in O.P(MV) No.1361 of 2007 of the Motor Accidents Claims Tribunal, Irinjalakuda. The appellant, aged about 20 years at the relevant time, engaged as a driver sustained injuries in a motor accident on 03.04.2007. According to the appellant, he was riding the motor cycle along the National Highway and while attempting to enter the service road on the eastern side, the Car driven by the 2nd respondent came from the opposite direction and hit him. The Tribunal found negligence on the part of the appellant and the 2nd respondent and apportioned the ratio of negligence as 50% each. The Tribunal fixed the total compensation payable at Rs.32,700/- but slashed down the amount payable to the appellant at Rs.16,350/- consequent to the finding regarding contributory negligence. The 3rd respondent was directed to deposit that amount.

(2.) LEARNED counsel contended that finding of the Tribunal on contributory negligence is not correct. According to the learned counsel evidence of the appellant as P.W1 was not properly appreciated. It is contended that the appellant was attempting to enter the service road on the eastern side and that it is after the appellant entered the eastern half of the road that the car driven by the 2nd respondent hit him. The further contention learned counsel advanced is that compensation awarded is low. No compensation was awarded for treatment expenses though Ext.A6, series medical bills were produced. Finding of the Tribunal regarding monthly income of the appellant is also under challenge.

(3.) EXHIBIT A3, copy of the final report shows that the 2nd respondent was chargesheeted for rash and negligent driving of the vehicle. Appellant did not produce a copy of the scene mahazar before the Tribunal. The 3rd respondent produced it and marked it as Ext.B1. The lie of the road is North-South. Tar portion of the road has width of 14 metres. Even as per the version of the appellant, he was riding the motor cycle from South to North and the Car came from North to South. The accident spot is 5 metres west of the eastern tar end. As per Ext.B1, the accident occurred on the eastern half which is the proper side of the car coming from North to South and wrong side of the motor cycle which the appellant was riding South to North. The appellant has an explanation why he happened to be on the eastern portion of the road - he was attempting to enter the service road on the east. No contra evidence is adduced by any of the respondents. Hence there is no reason to disbelieve that version of the appellant. But when the appellant was attempting to enter the service road he should have taken care and ensured that no vehicle is coming from the opposite side. Hence there was negligence on the part of the appellant. At the same time, the width of tar portion available to the 2nd respondent was 7 metres and had he been careful, he also could have avoided the accident even after the appellant turned his vehicle to the eastern side. Having regard to the type of vehicles involved and Ext.B1, sence mahazar I am inclined to think that the contributory negligence of the appellant can be fixed as 20%. Finding of the Tribunal is modified accordingly.