Pritam Majumder VsRakhal Chandra Roy

Deepak Gupta, C.J.—The short question raised in this appeal is whether the learned Motor Accident Claims Tribunal was justified in fixing contributory negligence to the extent of 50% on the claimant Pritam Majumder.

The undisputed facts are that the claimant was driving motorcycle No. TR-01-E-9890. When he reached near Garjanban panchayat office, ''truck'' bearing registration No. TRL-2782 came from the opposite side. There was a head on collision between the two vehicles wherein the claimant sustained serious injuries. The claimant filed a claim petition and the learned Tribunal assessed the compensation at Rs. 5,98,715/-. However, it only awarded 50% of that amount to the claimant on the ground that the claimant had been equally negligent in the accident. Aggrieved by this award, the claimant has filed the present petition.

On behalf of the claimant it is submitted that there is no evidence worth the name to show that the claimant was in any way negligent. The claimant stepped into the witness box as his own witness and in this statement he stated that the Tata lorry(truck) came from the opposite side at a high speed. The witness further stated that he was driving his motorcycle on the left side of the road but still the truck knocked him down. This clearly implies that the truck moved towards the right side of the road. The cross-examination of this witness was limited to the extent that the lorry was not being driven at a high speed and that he was driving the motorcycle at a high speed. This witness has also not produced his driving licence.

The learned Tribunal mainly relying upon the fact that the driving licence of the claimant has not been produced on record and also in view of the fact that there was a head on collision between the parties has come to the conclusion that the claimant was equally responsible for the accident. While doing so, the learned Tribunal has also relied upon the statement recorded in the police report that there was a head on collision. Merely because there was a head on collision does not mean that both drivers have to be held equally responsible for the accident.

True it is, that if there is no other evidence and there is evidence only of head on collision then the Tribunal would be justified in holding both the drivers to be equally responsible. However, in the present case, the claimant stepped into the witness box and stated that he was on the left side of the road and that the offending truck came from the opposite side on a high speed and hit him despite the fact that he was on the left side of the road. The driver of the truck did not care to step into the witness box. The owner and the insurance company of the truck did not care to examine the driver of the truck and therefore, the statement of the claimant stands unrebutted.

As far as the reliance upon the police report is concerned, I am constrained to observe that the learned Tribunal totally lost sight of the fact that the same police report showed that finally the police report had been filed only against the driver of the truck and there was no allegation of contributory negligence in the final police report.

In this view of the matter I am clearly of the view that the learned Tribunal erred in holding that the claimant was also partly responsible for the accident. Therefore, the appeal is allowed and the claimant is awarded entire compensation of Rs. 5,98,715/- along with interest @ 6% per annum from the date of filing of the claim petition till deposit of the same. The insurance company has already satisfied half of the awarded amount and, therefore, it is directed to deposit the balance amount of compensation after adjusting/deducting the amount already paid by it along with interest @ 6% per annum from the date of filing of the claim petition till deposit of the same. The amount be deposited in the Registry of this Court within 4(four) months from today. It is made clear that there shall be no liability to pay any penal interest.

The appeal is disposed of.

Send down the LCRs forthwith.