The main legal point established in the judgment is the determination of negligence in a road traffic accident and the maintainability of a claim petition by the legal representatives under Section 163A of the Motor Vehicles Act.

A.V. Ramakrishna Pillai, J.

1. The insurer of a motorcycle, which was involved in a road traffic accident on 18/09/2003, has come up in appeal.

2. A petition under Section 163A of the Motor Vehicles Act, 1988 was filed by respondents 1 to 4 before the Tribunal claiming compensation to the tune of Rs.7,29,500/- on account of the death of one Noushad, a 28 year old married man.

3. Allegedly, the deceased while riding his motorcycle went and hit the rear side of a lorry which was parked on the eastern side of the Tholikkuzhy Pallimukku public road. The deceased was proceeding from north to south.

4. As the claim was one under Section 163A, the learned Tribunal did not go into question of negligence. After quantifying the amount of compensation the appellant, who was the insurer of the motorcycle and the 6th respondent, who was the insurer of the lorry involved in accident were saddled with the liability in the ratio 1:1.

5. In this appeal, the appellant insurance company is challenging the finding of the Tribunal, making them liable to pay 50% amount of the compensation, mainly on two grounds:

(1) As per the charge sheet, the deceased himself was negligent.

(2) The deceased was riding his motorcycle with the consent of the registered owner and accordingly, he stepped into the shoes of the registered owner, thereby making his legal representatives dis-entitled to claim compensation.

6. We have heard the learned counsel for the appellant insurance company, the learned counsel for respondents 1 to 4, who are the claimants and the learned counsel for the 6th respondent insurance company. The impugned award was also perused.

7. It is relevant to note that the learned Tribunal did not go into the question of negligence, as the claim was one under Section 163A of the Motor Vehicles Act.

8. The argument advanced by the learned counsel for the appellant is that the fact that the deceased was rash and negligent in driving the motorcycle, has escaped from the attention of the learned Tribunal. The learned counsel for the 6th respondent, who is the insurer of the lorry would also contend that they were unnecessarily saddled with the liability of paying the compensation, as the deceased himself was negligent. To substantiate their argument, both of them relied on the police charge sheet which was against the deceased.

9. During the course of argument, a copy of Ext.A2 scene mahazar was made available to us for perusal. Ext.A2 would reveal that the road at the accident spot is lying north south direction. The total width of the tarred portion of the road is six metres. The scene mahazar would reveal that the lorry was parked on the eastern side of the road and it was occupying a space having a width of 2.10 metres, out of the total width of six metres. What can be discerned from Ext.A2 is that there was negligence on the part of the driver of the lorry also, as the lorry was parked against traffic rules i.e., making obstruction to the vehicles which, pass by.

10. On a totality of the evidence now placed on record, we are of the definite view that the accident had occurred due to the negligence of the deceased as well as the driver of the lorry, and we fix the contribution of the deceased and the driver of the lorry in the ratio 1:1.

11. It is trite after the decision of the Apex Court in National Insurance Company Ltd. v. Sinitha (2011 (2) KLT 821(SC)) that the claim under Section 163A of the Motor Vehicles Act can be defeated on the basis of the considerations regulated by fault liability principles. As we have found that there was 50% contributory negligence on the part of the appellant, the total amount of compensation payable to the claimants, shall stand reduced by 50%.

12. Regarding the second ground stated above, the learned counsel for the appellant insurance company relied on the decision of Apex Court in Nigamma and another v. United India Insurance Co. Ltd., (2009 ACJ 2020). In that case, the maintainability of a claim petition filed by