JAYANATH Vs. V.K. SHANAVAS AND OTHERS

JUDGEMENT

(1.) The injured claimant in OP(MV) No. 336 of 2003 on the files of Motor Accidents Claims Tribunal, Mavelikkara, has filed this appeal aggrieved by and dissatisfied with the quantum of compensation granted as per the award passed thereon. He filed the said claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by him. He claimed an amount of Rs. 1,50,000/- as compensation and as per the impugned award, the Tribunal has assessed the compensation payable as Rs. 78,200/-, and then, based on its finding that the appellant was guilty of contributory negligence to the extent of 20%, only an amount of Rs. 62,600/- was awarded as compensation. The said amount of Rs. 62,600/- was ordered to carry interest at the rate of 7.5% per annum from the date of the petition till the date of realisation, along with a cost of Rs. 2,000/-. It is seeking enhancement of the quantum of the compensation that the captioned appeal has been filed.

(2.) We have heard the learned counsel for the appellant and the learned counsel for the third respondent, the insurer.

(3.) There is no dispute regarding the fact that the appellant/petitioner had sustained injuries in a motor vehicle accident and also the liability of the third respondent to indemnify the second respondent, who is the insured owner of the offending vehicle. The main grievance of the appellant/petitioner is against the finding that he was guilty of contributory negligence. It is contended by the learned counsel that it was so found by the Tribunal solely on the ground that he was not possessing a driving licence. The accident in question had occurred when the appellant/petitioner was riding his scooter bearing Reg. No. KL-2/C-6049 through Kollam-Alappuzha National Highway. When he reached in front of the house of Payichulath Arjunan Achari, the stage carriage bearing Reg. No. KL-15 of 4143, which is a KSRTC bus, came from the opposite direction and dashed against his scooter. On sustaining injuries, the appellant/petitioner was taken to Government Hospital, Kayamkulam and from there, he was referred to Medical College Hospital, Alappuzha. Before the Tribunal, the appellant/petitioner was examined as PW-1 and on his side Exts. A1 to A11 were got marked. No evidence was adduced by the respondents. As noticed hereinbefore, the main contention of the appellant/petitioner is that the factum of non-possession of driving licence, by itself, ought not to have been taken as a reason for holding that he is guilty of contributory negligence. It is contended that the Tribunal ought to have found that the accident had occurred solely due to the negligence of the driver of the KSRTC bus. Before the Tribunal the appellant/petitioner got himself examined as PW-1. He produced Ext. A2, which is a copy of the scene mahazar prepared in the crime registered in connection with the accident in question besides his oral evidence. At the same time, a scanning of the impugned award would reveal that the contention of the appellant/petitioner that the finding of contributory negligence was solely due to the non-possession of driving licence, is not true to facts. It is evident from paragraph 16 of the impugned award itself that the Tribunal had gone into the question in detail. Evidently, two vehicles were involved in the accident. The appellant/petitioner was riding his scooter and it collided with a KSRTC bus. In the light of the circumstances obtained in this case, it is only appropriate to refer to the decision of the Hon'ble Apex Court in Sudhir Kumar Rana v. Surinder Singh and others [2008 (3) KHC 883]. In the said case, the Hon'ble Apex Court held that the injured-claimant was not possessing any licence to drive the class of vehicle involved in the accident by itself, would not and could not be a reason for holding him negligent or to hold that there is contributory negligence on his part. It was held that contributory negligence could be defined as negligence in not avoiding consequences arising from the negligence of some other person, when means and opportunities are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent. In other words, in such circumstances, there must be a finding that the injured claimant must also be guilty of an act or omission materially contributing to the accident which resulted in his injury, in order to apply the concept of contributory negligence. The very principle underlying the doctrine of contributory negligence is the application of the maxim 'in pari delicto potior est conditio defendentis', means when both parties are equally to blame, neither can hold the other liable. Bearing in mind the aforesaid principle, as also the decision of the Hon'ble Apex Court, we will proceed to consider as to whether the Tribunal was correct in holding that the appellant/petitioner was guilty of contributory negligence.