L VENKATARAMANAMMA Vs. MOHD ISHAQ CHAPOSH

JUDGEMENT

(1.) Believing the evidence of P.W.2 the Tribunal came to the conclusion that there is contributory negligence on the part of the deceased who was riding the , motor cycle and ultimately granted compensation of Rs.78,400/- with 6% interest. Aggrieved by that, the claimants have filed the present appeal.

(2.) The accident took place on 1-5-1984 at about 12 noon and the death of the deceased was due to the result of the injuries received cannot be disputed. He was also working as a Supervisor in M/s. Rayalaseema Power Constructions. Karimnagar and was drawing a salary of Rs. 1,200/- per month and he was aged about 26 years.

(3.) Sri V.V. Ramanadham, the learned counsel for the appellants, contended that the evidence of P.Ws.l to 3, and Exs.A-1 to A-3 ought to have been considered by the court below. On a close scrutiny of the evidence of P.W.2, in particular, it is seen that the motor cycle was also going at a particular speed which cannotbe controlled by the person driving it. It is the effective control of the vehicle that is to be taken into consideration to arrive at the conclusion. The speed of the vehicle is not criteria. In a high-way 90 Kms. speed per hour may not be a high -speed but in a busy area, 5 Kms. per hour may be considered to be a speed. In the circumstances, brought out in the case, the person is not having the effective control of the vehicle.Whether the deceased who was travelling along with P.W.2 was having effective control over the motor cycle on which he was travelling, was a matter that has to be taken into consideration on perusing the evidence and the lower court on perusing the same, had come to the conclusion that the deceased was also responsible for the accident. So the lower court assessed the evidence and found that there is contributory negligence on the part of both and the contribution has been assessed to 50 and 50. Even in cases where the pleadings do not indicate mat there is contributory negligence, still, it is permissible for the Tribunal to take into account the evidence and arrive at a conclusion whether there is contributory negligence also or not. With regard to the fixation of the quantum of compensation, it is the duty of the court to find out whether who is at fault and if so, to what extent. It is in that context I the contributory negligence theory, even without being raised in the pleadings also can be considered by the court, after assessing the evidence. In the result, the judgment of the court below is confirmed except with regard to the interest, which the claimants are entitled at 12% as against 6%. The C.M.A. is disposed of. No costs.