this is not a case where the jeep travelling in high speed came on its wrong side and gave a dash to the motorcycle. Exhibit-61 rule out the possibility of head on collision. It is true that only on the basis of the fact that there were two pillion riders along with the appellant at the time of accident, no inference or presumption can be drawn regarding negligence on the part of the person who was carrying two pillion riders. It is not in dispute that only one pillion rider could have been carried by the appellant. Assuming that the case made out by the appellant that there was a negligence on the part of fourth respondent is proved, the question which arises is whether any attempt was made by the appellant to avoid the accident. Going back to the deposition of the appellant, in paragraph 1 he has stated that he saw a cyclist coming from the opposite direction and behind the cycle there was a jeep. According to him the jeep while overtaking the cyclist came on wrong side and gave dash to the motorcycle. The learned counsel for the appellant tried to submit that the impact was so much that the jeep turned turtle and it was on the wrong side of the road. The appellant admitted that he had seen the jeep coming behind the cyclist. According to him the jeep was driven in a very high speed. In such an emergent situation, the question is whether presence of two pillion riders affects the ability of the motorcyclist to avoid the accident. It is obvious that on a pillion seat which is meant for only one person, if two persons are allowed to sit, the capacity of the person plying the motorcycle to control the same is bound to be reduced. Therefore, considering the facts of the case it cannot be said that the appellant has not contributed to the negligence. In fact, there is contribution made by the appellant himself. The question which remains is as to whether the extent of contributory negligence was 60%.
