K PUSHPA LATHA Vs. E MURALI MANOHAR RAO

JUDGEMENT

(1.) S . Govindarajulu, J. - The appellants in these two appeals are the injured. The Tribunal after assessing quantum of compensation payable to each of the injured deducted 50 per cent thereof towards con tributory negligence. Questioning the said disallowance, the injured filed these two appeals independently.

(2.) IN this case, both the injured herein were travelling as pillion riders on motor cycle while another person was riding the motor cycle. The motor cycle was being driven at a speed of 40 kmph at the time of accident, as per evidence of the injured. Maruti car bearing No. AP 36 -F 3434 came from back side of the motor cycle and hit the motor cycle from back side resulting in injuries to both the appellants. The Tribunal came to the conclusion that since the motor cycle is a two -wheeler on which only two persons can ride and since three persons were riding at the time of accident, there was negligence on the part of motor cycle rider also. The respondents ' counsel contended before this court that section 128 of the Motor Vehicles Act, 1988 (in short, 'the Act ') prohibits triple riding on a two -wheeler. Section 128 (1) of the Act deals with safety measures for drivers and pillion riders on two -wheeled motor cycle. The said provision reads as follows : ''No driver of a two -wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver 's seat with appropriate safety measures. ''

(3.) IN this case, except there being evidence of triple riding of motor cycle bearing No. AP 11 -B 5316, there is no further evidence to show that motor cycle rider was riding the motor cycle in a haphazard manner or in a zigzag fashion in order to contribute negligence for this accident. The fact that Maruti car came from behind the motor cycle and dashed the motor cycle discloses that Maruti car was being driven at higher speed than the motor cycle and dashed the motor cycle from back side when the motor cycle was going in front of the car was visible to the car driver. When the motor cycle was going in front of the car and there was no clearance of the road for the car to pass through the road overtaking the motor cycle, driver of the car should have slowed down the car and as and when there was clearance, he should have overtaken the motor cycle. Instead, the car driver has preferred to hit the motor cycle going in front of it. This undoubtedly shows that the car driver was at fault and the accident is the result of rash and negligent driving of the car driver solely and the motor cycle rider did not contribute any negligence for this accident. Therefore, in my opinion, the Tribunal came to an erroneous conclusion that the motor cycle also contributed negligence for this accident on the mere fact that there was triple riding on the motor cycle. The Tribunal erred in disallowing 50 per cent of the compensation payable to both the appellants. C.M.A. No. 645 of 2004: