MAXWELL ROZARIO Vs. O B RAYMON

JUDGEMENT

(1.) Dissatisfied with the quantum of compensation awarded by the M.A.C.T., Ernakulam in O.P.(MV)No. 3134/1996, the claimant in the O.P has filed this appeal challenging the finding regarding contributory negligence on his part in causing the accident and also claiming enhanced compensation.

(2.) The Tribunal had found that the accident occurred on account of the negligence of the appellant himself and the 2nd respondent in the ratio of 75:25 and although it was found that the appellant was entitled to a total compensation of Rs. 41,500/-, in view of the contributory negligence on the part of the appellant, the actual compensation payable to the appellant was restricted to Rs. 10,500/-. Primarily, the appellant is challenging the finding of contributory negligence on the part of the appellant. The appellant also contests the quantum fixed as compensation as less than what is due to him as just and fair compensation. The accident occurred on 13-8-1996 at 9.30 p.m. According to the appellant, the accident occurred at the Ernakulam Park Avenue road in front of the Boat Jetty, while he was standing on the median of the road. He would submit that while he was standing on the median of the road, unless the 2nd respondent drove the bus negligently, the accident could not have occurred at all and therefore there is no question of any negligence on the part of the appellant. The appellant would rely on Ext. A1 document stated to be the true copy of the F.I.R. However, the Tribunal did not accept the same. The appellant also produced Ext. A2 photo copy of the charge sheet, which was not legible and readable from which the exact spot of the accident was not decipherable. The Tribunal found that the doctor who examined the appellant after the accident found that there was smell of alcohol in his breath on his examination on the very same day of the accident. The appellant could not satisfy the Tribunal as to why the appellant could not produce the certified copy of the FIR and scene mahazar. The Tribunal entered a finding that when admittedly the appellant was standing on the median of the road, if the 2nd respondent was negligently driving the vehicle to hit the appellant, then, certainly the median should have been damaged, for which there is no evidence. These facts could have been ascertained only from the scene mahazar which has not been produced. As a result, the Tribunal drew an adverse inference from non-production of the scene mahazar. Coupled with the fact that the appellant had in fact consumed alcohol, although the appellant protested having consumed alcohol, the Tribunal came to the finding that there was actually contradictory negligence on the part of the appellant to the extent of 75%.

(3.) Learned counsel for the appellant would vehemently argue that even if it is true that the appellant had consumed alcohol, the only finding of the doctor was that there was smell of alcohol in his breath and therefore it could not have been found that the appellant was under the influence of alcohol. He would submit that when he was standing on the median, it defies logic as to how he could have been negligent. He would submit that the charge sheet itself contained sufficient materials to show the manner in which the accident took place. The Tribunal ought not to have found fault with the appellant in not producing the certified copy of the FIR and scene mahazar, is his contention. He would further submit that on a reading of the evidence would conclusively show that there was no contributory negligence on the part of the appellant.