Point of Law : Motor Accident – Contributory Negligence - Compensation - Petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in table below for easy reference - Petitioner is guilty for contributory negligence to extent of 50%, petitioner is only entitled to one half of compensation.

JUDGMENT :

The appellant was the petitioner in O.P(MV) 1772/2002 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The respondents in the appeal were the respondents 1, 2 and 4 before the Tribunal. At the instance of the appellant, the third respondent in the appeal was deleted from the party array. The parties are, therefore, referred to as per their status before the Tribunal.

2. The facts in a nutshell, relevant for the determination of the appeal, are : on 17.6.2002, while the petitioner was riding a motorcycle bearing registration No.KL-11/F-6600 from the Vazhuthacaud to Pangode, when he reached the Sree Mulam Club junction in the Vazhuthacaud – Vellayambalam road, Thiruvananthapuram, a car bearing registration No.KRF-5787 (car), owned and driven by the first respondent in a rash and negligent manner, hit the motorcycle. The petitioner was thrown on to the road and he sustained serious injuries, including a compound fracture. The car was insured with the second respondent. The respondents 3 and 4 were the owner and insurer of the motorcycle. The petitioner was a driver by profession and earning a monthly income of Rs.5,500/-. He claimed an amount of Rs.2,00,000/- as compensation from the respondents, under Sec.166 of the Motor Vehicles Act, 1988.

3. The respondents 1, 2 and 4 contested the proceeding by filing separate written-statements. The first respondent contended that the accident occurred due to the negligence of the petitioner. The second respondent took the stand that it was the petitioner who hit his motorcycle on the rear side of the car, which was waiting for the green light at the traffic signal. Even though the petitioner had given a false first information statement, the City Traffic Police filed a refer charge. Hence, the second respondent is not liable to indemnify the first respondent. The fourth respondent stated that the accident occurred due to the negligence of the 1st respondent. Hence, the fourth respondent may be exonerated.

4. The petitioner had examined two witnesses as PWs 1 and 2 and marked Exts.A1 to A5; the second respondent marked Exts.B1 to B4 in evidence.

5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by holding that the petitioner was entitled to an amount of Rs.60,760/-as compensation. But, the Tribunal found that the petitioner and the first respondent were guilty for contributory negligence in the ratio 60:40. Accordingly, the second respondent was directed to pay the petitioner an amount of Rs.24,304/-with interest and costs.

6. Aggrieved by the finding of the contributory negligence and dissatisfied with the quantum of compensation awarded, the petitioner is in appeal.

7. Heard; Sri.R.T Pradeep, the learned counsel appearing for the appellant and Sri.P.Jacob Mathew, the learned counsel appearing for the fourth respondent.

8. Sri.R.T Pradeep vehemently argued that the Tribunal has erroneously held the petitioner negligent by discarding the oral testimony of PWs. 1 and 2 and blindly accepting Ext.B2 refer charge. The fixing of contributory negligence on the petitioner to the extent of 60% was wrong. He submitted that, as the petitioner had examined PWs 1 and 2, eye-witnesses to the accident, Ext B2 refer charge stood discredited and fell into a pale of insignificance. Therefore, the Tribunal ought to have found the first respondent negligent and directed the second respondent to indemnify the first respondent and pay the compensation. He also contended that the Tribunal has committed a patent illegality by scaling down the disability of the petitioner to 8%, that too after marking and accepting Ext.A5 disability certificate in evidence. The petitioner’s functional disability has been proved to be 12% as per Ext.A5. He relied on the decision of the Honourable Supreme Court in Raj Kumar v. Ajay Kumar [2011 (1