The Court modified the contributory negligence ratio from 50% to 25% for the deceased, determining liability based on the circumstances of the accident.

JUDGMENT

This appeal is filed by the claimants in O.P(MV) No.299 of

2013 on the file of the Motor Accidents Claims Tribunal, Wayanad, Kalpetta challenging the finding of contributory negligence of 50% by the tribunal. The respondents herein are the respondents before the tribunal.

2. According to the claimant, on 07.06.2013 at about 10.15 am, while the deceased was riding his motorcycle bearing reg. No. KL12G/1885, an autorickshaw bearing registration No.KL-12G- 2080 hit on the motorcycle. Because of the impact of the hit, the deceased fell down on the road and in the meanwhile the tipper lorry bearing registration No.KL-12-G-1973 driven by the 1^st respondent in a rash and negligent manner ran over the deceased and he sustained severe injuries and later succumbed to the injuries. The legal heirs of the deceased approached the tribunal claiming a total compensation of ₹20,00,000/-.

3. The first respondent/driver and 2^nd respondent/owner of the offending tipper lorry filed a joint written statement disputing the quantum of compensation claimed and contending that the petition is bad for non joinder of necessary parties. The 3^rd respondent/insurer filed a written statement admitting the policy, but disputing the quantum of compensation claimed and denied that the 1^st respondent had no valid driving licence at the time of accident. It was also contended that the petition was bad for non joinder of necessary parties. Before the tribunal, PW1 was examined and Exts.A1 to A11 and Exts.B1 and B2 were marked. The tribunal, after analysing the pleadings and materials on record, found 50% contributory negligence on the part of the deceased and awarded a sum of ₹13,92,640/- (50% of ₹27,85,280/-) as compensation under different heads with interest @9% per annum from the date of petition till realization with proportionate costs against the 3^rd respondent being the insurer of the offending vehicle. Challenging the 50% contributory negligence attributed by the tribunal, the claimants who are the legal heirs of the deceased have come up in appeal.

4. Heard the learned counsel for the appellants and the learned standing counsel appearing for the insurance company.

5. The learned counsel for the appellants submitted that they are challenging only the finding of contributory negligence and are not challenging the quantum of compensation awarded by the tribunal. According to the learned counsel, the tribunal has found

50% contributory negligence on the part of the deceased without any proper and valid reasons. The deceased who was riding the motorcycle hit on the autorickshaw which had stopped abruptly and thus the deceased fell from the motorcycle and the tipper lorry which was coming in a rash and negligent manner ran over the deceased and thus he succumbed to the injuries. There was no negligence on the part of the deceased in causing the accident.

6. Per Contra, the learned standing counsel appearing for the insurance company submitted that the driver and owner of the autorickshaw were not made parties to the proceedings and that no allegations were raised against the driver of the autorickshaw. The negligence was alleged only against the driver of the tipper lorry.

7. On a perusal of the award, it is seen that the tribunal has found that if the tipper lorry was being driven at a moderate speed and the driver had kept sufficient distance with the motorcycle, definitely the accident could have been avoided. Even after recording such a finding, the Tribunal fixed 50% contributory negligence on the part of the deceased. There is no case put forward by the insurer or the owner of the tipper lorry that the tipper lorry was driven maintaining sufficient distance from the motorcycle ridden by the deceased. The Tribunal also found that the evid