The court overruled the finding of contributory negligence based solely on inadequate evidence, leading to a significant compensation enhancement.

JUDGMENT

This appeal is filed by the claimant in OP(MV) No.274 of

2012 on the file of the Motor Accidents Claims Tribunal, Tirur, claiming enhancement of compensation as well as challenging the 20% contributory negligence on the part of the claimant. The respondent herein was the third respondent before the tribunal.

2. According to the claimant, on 02.08.2011 at about

09.25 a.m., while the claimant was riding on a motorcycle bearing registration No.KL-55-G-8495 from Puthanathani to Valanchery, a lorry bearing registration No.TN-37-K-7479 driven by the first respondent in a rash and negligent manner dashed against the motorcycle and as a result, the claimant sustained serious injuries. The claimant approached the tribunal claiming a total compensation of ₹8,50,000/-.

3. Though notice was served on the first and second respondents, the driver and the owner of the offending vehicle respectively, they remained absent and were set ex parte before the tribunal. The third respondent - insurer filed a written statement, admitting the insurance policy, disputing the liability and quantum of compensation claimed. Before the tribunal, Exts.A1 to A23 and Ext.C1 were marked. The tribunal, after analysing the pleadings and materials on record found negligence on the part of the claimant and the first respondent and awarded a sum of ₹3,97,100/- and found negligence at the ratio of 20:80, and directed the respondent – insurer to pay 80% of the total award amount, as compensation under different heads with interest @ 9% per annum from the date of petition till realization, against the respondent being the insurer. Challenging the finding of contributory negligence on the part of the claimant as well as the quantum of compensation awarded by the tribunal, the claimant has come up in appeal.

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

5. The learned counsel for the appellant submitted that the tribunal has found 20% contributory negligence on the part of the appellant solely on the ground that the accident was on the centre of the road. It is further submitted that the charge sheet was drawn against the driver of the lorry and there was nothing on record to show that there was any negligence on the part of the claimant in this case. The insurance company also did not adduce any evidence to prove any contributory negligence on the part of the claimant.

6. The learned standing counsel appearing for the insurance company, however, submitted that the lorry was moving upward through Vattapara hairpin curve and the two- wheeler which was coming from the opposite direction, was in the middle of the road and hence tribunal has rightly found contributory negligence on the part of the rider of the motor cycle. I have considered the contentions raised by both sides. The finding of contributory negligence by the tribunal is solely relying on the scene mahazar. The insurer did not adduce any evidence to prove any contributory negligence on the part of the claimant/rider. This Court in Raju K.J. v. Deepak T.V. [2024 (4) KHC 314] , following the Apex Court Judgment in Jiju Kuruvila & Others v. Kunjunjumma Mohan [2013 (9) SCC 166] , held that no inference can be drawn on the basis of scene mahazar for arriving at contributory negligence. Since no evidence was adduced by the insurer to contradict the charge sheet against the driver of the insured lorry, the tribunal’s finding of 20% contributory negligence against the claimant, based only on the scene mahazar, is not justifiable and thus, is liable to be set aside.

7. The learned counsel for the appellant claims enhancement mainly under the foll