The finding of contributory negligence must be substantiated by credible evidence; without which it cannot be deemed valid.

JUDGMENT

This appeal is filed by the claimant in OP(MV)

No.1299/2005 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, claiming enhancement of compensation as well as challenging the 50% contributory negligence on the part of the claimant. The respondents herein were the respondents before the tribunal. The first respondent died during the pendency of the appeal and his legal heirs were impleaded as additional respondents 3 to 7.

2. According to the claimant, on 05.07.2005 at about 7.00 p.m., while the claimant was pillion riding on a motorbike bearing registration No.KL-3M-194 from Chathomkara junction to Mothiravayal, due to the rash and negligent riding of the first respondent, the motorbike lost control over the vehicle while negotiating a curve and it capsized, and as a result, the claimant sustained serious injuries. The claimant approached the tribunal claiming a total compensation of ₹1,09,500/-.

3. Though notice was served on the first respondent, the owner-cum-rider of the offending vehicle, he remained absent and was set ex parte before the tribunal. The second respondent - insurer filed a written statement admitting the insurance coverage and contended that the claimant was pillion riding on the vehicle while under the influence of the alcohol, which contributed to the accident. Before the tribunal, Exts.A1 to A9 and Ext.B1 were marked. The tribunal, after analysing the pleadings and materials on record, found that the accident occurred due to negligence on the part of the first respondent and the claimant and 2nd respondent being the insurer was found liable to pay a sum of ₹9,650/-, (50% of 19,300) as compensation under different heads with interest @ 7.5% per annum from the date of petition till realization with proportionate costs. Dissatisfied with the quantum of compensation awarded by the tribunal and challenging the 50%

contributory negligence, the claimant has come up in appeal.

4. Heard the learned counsel for the appellant and the learned standing counsel appearing for the second respondent insurer.

5. The learned counsel for the appellant submitted that the tribunal found 50% contributory negligence on the part of the claimant relying on Ext.A6 accident register-cum-wound certificate, as well as on the submission of the learned standing counsel appearing for the insurance company that the accident occurred when the claimant attempted to alight from a moving vehicle. The learned counsel for the appellant further submitted that, apart from this contention, no evidence was adduced by the insurance company to substantiate contributory negligence on the part of the pillion rider in causing the accident.

6. The learned standing counsel appearing for the insurance company, however, submitted that, in view of the smell of alcohol mentioned in Ext.A6 accident register-cum-

wound register and the fact that the claimant attempted to alight from the moving vehicle, the tribunal was justified in fixing 50% contributory negligence on the part of the pillion rider.

7. I have considered the rival contentions raised by both sides. On a perusal of the award, it is seen that, the tribunal while awarding compensation has deducted 50% of the award amount on finding 50% contributory negligence on the part of the claimant. The learned counsel for the claimant contended that other than Ext. A6 accident register-cum-wound certificate, in which the doctor had noted the smell of alcohol, there is no evidence to show that any breath analyser test was conducted. Merely because the claimant, who was a pillion rider, had consumed alcohol, it cannot be concluded that he contributed to the accident, espe