MANIKANDAN Vs. N.P.KUTTAN

JUDGEMENT

(1.) The accident which gave rise to the claim petition, occurred on 25.02.2003, when the motorcycle in which the appellants were travelling was hit by a mini lorry. The rider of the motorcycle is the appellant in M.A.C.A.No.1158 of 2009 and in the pillion was the appellant in M.A.C.A.No.1156 of 2009. The Tribunal, basing itself on a suggestion made in cross-examination that PW-1, the rider of the motorcycle, was overtaking another vehicle without taking due care and caution as also the fact that the scene mahazar was not legible, found that the accident occurred right in the middle of the road. However, the FIR produced as Exhibit A1 arraigned the driver of the mini lorry as the accused. The FIR was given short-shrift, finding that there is no specific averment in the FI Statement as to how the accident occurred. Based on this, the Tribunal found contributory negligence at 50% on the rider of the motorcycle.

(2.) I have gone through the deposition of PW-1. PW-1 has marked Exhibit A5 charge-sheet in cross-examination, which has raised the specific charge of negligence against the driver of the mini lorry. In fact, the cross-examination of PW-1 also indicates that, to the suggestion made of negligent overtaking, the deponent had specifically denied it. In such circumstances, this Court does not find any reason to sustain negligence found on the rider of the motorcycle. 50% negligence found on the driver of the motorcycle is, hence, set aside. It has to be noticed here that though contributory negligence was found at 50%, the Tribunal while awarding the total compensation reduced it to only 10%.

(3.) Now, the question is as to the enhancement of compensation, which has to be considered independently.