Contributory negligence was established, leading to the apportionment of 50% contributory negligence on each driver.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act,1988, against the judgment and decree made in M.A.C.T.O.P.No.42 of 2003, dated 5.5.2005, on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate,Nagercoil).

1. This Civil Miscellaneous Appeal is directed against the judgment and decree made in M.A.C.T.O.P.No.42 of 2003, dated 5.5.2005, on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate),Nagercoil.

2. The claim Petitioners are the appellants herein challenging the award passed in M.C.O.P.No.42 of 2003, on the ground of negligence as well as on quantum.

3. The claim Petitioners in the claim petition as well as in evidence stated that on 5.10.2002, at about 6.00 a.m., the deceased Ebesh, son of Varghese was driver in Lorry bearing Registration No.KL 06-3537 driving towards Madras and he reached near MAM Engineering College, Siruganoor, Tiruchy District on the National Highway. He was driving his lorry very carefully on the left side of the road. At that time, the Tamil Nadu State Express Transport Corporation bus bearing Registration No.TN 01 N 6460 driven by the first respondent in a rash and negligent manner with a very high speed and the bus went out of the control of the first respodnent and suddenly moved towards the lorry and collided with the lorry driven by Ebesh.

4. The Transport Corporation in its counter has stated that on 5.10.2002, the first respondent was driving the vehicle bearing Registration No.TN 01/N 6469 from Chennai to Madurai very slowly with utmost care and caution. He was driving the vehicle in his left side at Siruganoor at 6.00 a.m. But the deceased drove the vehicle in a rash and negligent manner with a high speed and in an uncontrollable speed and come to the extreme right side of the road. On seeing the vehicle which was driven by the deceased was coming to the extreme right side, the first respondent drove the bus in his left side and stopped there. At the very next movement, the deceased with his vehicle in an uncontrollable speed and hit the seond respondent's bus in the front side. It can be observed in the rough sketch. The accident could have been averted if the deceased took some caution in driving the vehicle. Immediately after the acident, the Conductor of the second respondent's bus only gave the information to the Police Station. Accordingly, the First Information Report was registered against the deceased.

5. The owner of the lorry and its Insurance Company namely, Respondents 3 and 4 before the Tribunal, have also filed a statement.

6. During trial, the Petitioner is examined as P.W.1.The cleaner of the lorry is examined as P.W.2 and a third party is examined as R.W.3. Ex.P1 to Ex.P12 were marked. On behalf of the respondents, the Conductor of the Transport Corporation is examined as R.W.1 and no douments were marked.

7. The rough sketch is marked as Ex.P2. The trial Court has held that the accident has taken place due to the contributory negligence of the deceased namely, lorry driver at 50% and the driver of the bus at 50% and awarded a sum of Rs.4,32,856/- with interest at the rate of 9% p.a. Aggrieged against the said finding, the claim Petitioners have filed the present Civil Miscellaneous Appeal.

8. Heard the respective counsels appearing for the respective parties and perused the materials placed before this Court.

9. With regard to the accident there is no dispute. With regard to the manner of the accident, two versions are available before the Court, one by P.W.2 and another by R.W.1.The photographs taken as to the position of the vehicle after the accident is marked as Ex.P11.The rough sketch drawn by the Police is marked as Ex.P2. Since the photos are after the accident, the same cannot be taken for discussion.

9(b)As to whether there was any contributory negligence by the deceased namely, the husband of the first claim petitioner. P.W.2-Nagarajan is the Cleaner of the lorry. As per his evide