The court confirmed that the burden of proving negligence lies with the party disputing established charges, and contributory negligence should not diminish compensation if the claimant is not at fault.

J U D G M E N T

This appeal has been preferred by the claimant in O.P(MV) No.

1001 of 2003 on the file of Motor Accidents Claims Tribunal, Pathanamthitta, challenging the quantum of compensation awarded by the Tribunal as well as the finding of contributory negligence against him.

2. The appellant was a 32 year old Soldier serving in Indian Army during the period of accident. While he was on leave at his native place at Thiruvalla, on 21.04.2003 at 10.30 p.m, he met with a road traffic accident. While he was riding his motorcycle through Mannar-Thiruvalla public road carrying his wife on the pillion seat, at Cyclemukku junction he was knocked down by KL-5/C-318 mini lorry driven by the 1st respondent, in a rash and negligent manner. Actually he was trying to go to the road on the western side, after putting signal light. Himself and his wife fell down and sustained injuries. He suffered fracture of both bones of his right leg and he was taken to Thiruvalla Medical Mission Hospital from there to Military Hospital, Kochi, and thereafter, he was taken to Military Hospital, Bangalore, for better treatment. He suffered disability also due to the injuries he had suffered in the accident. He approached the Tribunal claiming compensation of Rs.8,00,250/-. But, the Tribunal found that though he was eligible to get Rs.1,55,375/- as compensation, as the accident occurred due to his contributory negligence, which was assessed as 50%, the compensation was reduced to half, and an award was passed in his favour for an amount of Rs.77,688/-. Aggrieved by the award, the appellant has preferred this appeal.

3. The 1st respondent was the driver of the offending lorry, 2nd respondent was the owner and 3rd respondent was its Insurer.

Respondents 1 and 2 remained ex parte throughout.

4. The 3rd respondent opposed the claim saying that, there was no negligence from the part of the 1st respondent, and the accident occurred due to the negligence of the appellant himself. No disability was caused to the appellant so as to affect his earning capacity. The Driving Licence of the 1st respondent is disputed.

Though they admit the Policy, according to them, since there was violation of the Policy conditions, they are not liable to indemnify the insured.

5. Before the Tribunal, PWs 1 to 4 were examined and Exts.A1 to 20 were marked from the side of the appellant/claimant. No oral or documentary evidence was adduced from the side of the contesting 3rd respondent.

6. Now let us see whether there is any illegality, irregularity or impropriety in the impugned award warranting interference by this Court.

7. Heard learned counsel appearing for the appellant and learned counsel appearing for the 3rd respondent.

8. According to the appellant, on 21.04.2003 at 10.30 p.m., he was riding his motorcycle carrying his wife on the pillion seat. As he wanted to turn towards the road on the western side, he put on the indicator light, and on assuring that no vehicles were coming from either side, crossed the road from the eastern side towards west. But, KL-5/C-318 lorry, which was driven by the 1st respondent in a rash and negligent manner, hit against his motorcycle, and himself and his wife were thrown down on the road. Ext.A2 scene mahazar clearly shows that, the accident occurred 90cms east from the western tar end of the road. The tar road at that portion was having width of 5.8 mtrs. The lorry was proceeding towards north from south and the motorcycle was driven by the appellant from north towards south. So, the proper side of the lorry was western side of the road, and the proper side of the motorcycle was the eastern side of the road. Learned Tribunal, finding that the accident occurred 90cms east from the western tar end, fixed contributory negligence of 50% on the appellant, as it was his wrong side. But, the testimony of PWs 1 to 4 clearly shows that, the appellant was trying to turn towards the road leading towards west, for which he put right indicator light of his moto