IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 MACA.No. 2836 of 2008() ----------------------- OPMV.1352/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER ------------------------ 1. JACOB, S/O.KURIEN,MANGALATH HOUSE, RESIDING AT EDAMALAYIL HOUSE, KAKKAD-PIRAVOM. 2. SARAKUTTY,W/O.JACOB,MANGALATH HOUSE, RESIDING AT EDAMALAYIL HOUSE,KAKKAD-PIRAVOM 3. SUJA PAUL, W/O.PAUL, EDAMALAYIL HOUSE, PEPPATHY KARA,EDAKKATTUVAYAL VILLAGE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): RESPONDENTS -------------------------- 1. RAJEEV MAMMAN, NINAN BUILDING, 5TH CROSS ROAD, W/ISLAND, KOCHI-682003 2. SHIBU JOSEPH, CHATHANKUZHIYIL HOUSE, THIRUVANIJYOOR ERNAKULAM. 3. THE NATIONAL INSURANCE COMPANY LTD., COCHIN DIVISIONAL OFFICE, AJAY VIHAR, IST FLOOR, M.G.ROAD-ERNAKULAM. ADV. SMT.SARAH SALVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & P.R.RAMACHANDRA MENON, JJ. * * * * * * * * * * * * * * * * * * M.A.C.A.No.2836 of 2008 ---------------------------------------- Dated this the 9th day of February 2009 J U D G M E N T R.BASANT,J The appellants are the claimants. They had claimed compensation for loss suffered by them on account of the death of the son of the petitioners 1 and 2 (brother of petitioner No.3) in a motor accident. There is no dispute about the negligence on the side of the 1st respondent or the quantum of compensation awarded. The tribunal took the view that the deceased was negligent to the extent of 50%. Total compensation was computed at Rs.1,04,500/-. Half of it was reduced on the ground of contributory negligence of the deceased. No oral evidence was adduced by either side before the Tribunal. Exts.A1 to A7 were marked by the claimants. These included the copy of the F.I.R, the scene mahazer and the charge sheet. The charge sheet shows that the 1st respondent was negligent and was charge sheeted for culpable negligence. The scene mahazer shows that the spot of the accident was at a distance of 96 cms east of the median on the road which lies north south. The M.A.C.A.No.2836/2008 2 tribunal on that simple fact came to the conclusion that there was 50% contributory negligence on the part of the deceased. Discussion appears in paragraph 8 in the following words. “Accident and policy is admitted. Question is negligence. Ext.A1 is the copy of the F.I.R. Ext.A2 is the copy of the scene mahazer. It shows that accident was in a road having 4 line traffic and the accident was 96 cms. east of the median in a road lying north- south. The fact that the cyclist was going near to the median shows that he was negligent. Careful rider of a cycle will not ride through the middle of the road like Vyttila-Palarivattom bye-pass. That shows that deceased was also negligent.” 2. The learned counsel for the appellants submits that this conclusion is absolutely incorrect and cannot be supported. Then the mere fact that the bicycle rider was found at a distance of 96 cms east of the median on the road which lies north-south, it cannot be assumed lightly that he was negligent for causing the accident in which the vehicle driven by the 1st respondent came from behind hitting him on the rear of the bicycle. There is no contention that the deceased had swerved to the right or the left. In any view of the matter, we are of the opinion that there is significant lack of evidence to show that the deceased had contributed any negligence for the accident. From the mere fact that he was at that spot located above, an instant and ready M.A.C.A.No.2836/2008 3 inference that he was guilty of contributory negligence cannot be drawn. We are, in these circumstances, satisfied that the contributory negligence found against the deceased cannot be justified. No other contentions are raised. 3. The upshot of the above discussion is that the reduction of the quantum of compensation by half resorted to by the Tribunal is not justified and the same does warrant interference. 4. In the result, a) This M.A.C.A is allowed with costs. b) It is held that the appellants are entitled to the entire amount of compensation (Rs.1,04,500/-) as fixed by the Tribunal without any reduction on the ground of alleged contributory negligence. c) Interest shall now be payable on the enhanced amount as already directed. (R.BASANT, JUDGE) (P.R.RAMACHANDRA MENON, JUDGE) jsr M.A.C.A.No.2836/2008 4 M.A.C.A.No.2836/2008 5 R.BASANT & P.R.RAMACHANDRA MENON, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009