IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
MACA NO. 1370 OF 2014
AGAINST THE AWARD IN OPMV 897/2006 OF ADDITIONAL DISTRICT COURT &
MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR
APPELLANT/PETITIONER:
GIRISH M.R.
AGED 40 YEARS
S/O. RAVEENDRAN, MADAVANA HOUSE,
EDAVANAKKAD KARA, EDAVANAKKAD VILLAGE, KOCHI TALUK.
BY ADVS.
P.VISWANATHA MENON
C.CHANDRASEKHARAN
RESPONDENTS/RESPONDENTS:
1 LINGESH
S/O. RAGHAVAN, PATTALIVEETTIL HOUSE,
ICHIKATUKARA, KATTUR VILLAGE,
THRISSUR DISTRICT, PIN-680702.
2 ANEEFA.M.A.
S/O. ALI, MADATHIPARAMBIL HOUSE,
KATTOR.P.O., THRISSUR DISTRICT-680702.
3 NEW INDIA INSURANCE COMPANY LIMITED
BRANCH OFFICE, TRIPRAYAR,
THRISSUR DISTRICT-680566.
4 JUBISH CHANDRAN
S/O. SUDHA, TARAMALAVEETTIL, VAYALUKARA,
KUNNUKARA VILLAGE, ERNAKULAM DISTRICT-683578.
5 RASHEED.V.I.
VADAKKUMPURATH HOUSE, CHENDAMANGALAM,
ERNAKULAM PIN-683512.
6 THE ORIENTAL INSURANCE COMPANY LIMITED
ROSY WOTERS, II-ND FLOOR, NO.7,
NUNGAMBAKKAM HIGH ROAD, CHENNAI-600034.
BY ADVS.
SRI.M.M.IRSHAD MOOPPAN
SRI.P.JAYASANKAR
SRI.P.V.JYOTHI PRASAD
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 1370 OF 2014
2
JUDGMENT
Dated this the 24th day of June, 2022 This appeal is at the instance of the Original Petitioner in O.P.(MV) No.897/2006 on the files of the Motor Accidents Claims Tribunal, North Paravur. Respondents herein are the respondents before the Tribunal.
2. Heard the learned counsel for the appellant as well as the learned Standing Counsel appearing for the third respondent-Insurance Company. No representation for the learned Standing Counsel appearing for the sixth respondent-Insurance Company.
3. The short facts of the case :
The appellant, who suffered injuries in consequence of a motor accident occurred on 17.01.2006 at 11.30 a.m., approached the Tribunal and claimed compensation MACA NO. 1370 OF 2014 3 to the tune of Rs.8,00,000/-, attributing negligence against the drivers of the motor cycle and bus bearing registration Nos.KL-8/AD-5956 and KL-9/K-1688 respectively.
4. While opposing the claim, the third respondent- Insurance Company filed written statement, but disputed the accident by denying negligence against the first respondent. Negligence attributed against the appellant, atleast contributory negligence was alleged on the part of the appellant, who also was riding a motor cycle bearing registration No.KL-8/AD-5956. The quantum of compensation also challenged while admitting policy to the motorcycle bearing registration No.KL-8/AD-5956.
5. The sixth respondent-Insurance Company also filed written statement by denying accident and negligence and attributing negligence on the part of the appellant. The quantum also was disputed, while admitting policy to the bus bearing registration No. MACA NO. 1370 OF 2014 4 KL-9/K-1688.
6. The Tribunal recorded evidence of PW1 and marked Exts.A1 to A13 on the side of the appellant. No evidence let in by the respondents. Finally, Rs.6,11,500/- was assessed by the Tribunal as the compensation entitled by the appellant. However, 25% of the award was reduced, finding contributory negligence on the part of the appellant.
7. At the time of arguing this appeal, the learned counsel for the appellant would submit that the finding of contributory negligence on the part of the appellant without support of sufficient evidence, ignoring the police charge, attributing negligence against the other vehicles involved in the accident, is erroneous and therefore, the same is liable to be set aside.
8. Per contra, the learned counsel for the third respondent would submit that the evidence of PW1 would suggest that he was thrown out from the bike before the MACA NO. 1370 OF 2014 5 accident and in turn, the bus ran over him and sustained injuries in consequence thereof. According to the learned counsel, the appellant was on the wrong side of the road at the time of the accident and when he attempted to over take the bus through wrong side, the bike came from the opposite direction in the proper side happened to hit against him and in that view of the matter, the accident is the sole contribution of negligence on the part of the appellant himself. Therefore, 25% contributory negligence found by the Tribunal need not be interfered at all.
9. In this matter, evidently, as per Ext.A2 charge, the Police attributed negligence against the bike rider, who alleged to have hit the appellant and the driver of the bus, which ran over the foot of the appellant in equal proportion. But the Tribunal found 25% contributory negligence on the part of the appellant relying on scene mahazar and found 75% negligence on the part of the bike rider and bus driver in equal proportion. I do not think that scene mahazar forming part of final report, holding MACA NO. 1370 OF 2014 6 otherwise, alone is sufficient to find the contributory negligence. It is true that, in this matter, PW1, the appellant, also was examined to prove the negligence in tune with the police charge. Though PW1 was cross- examined to extract negligence on his part, nothing brought out in the affirmative to hold so. That is to say, PW1's evidence did not suggest anything to hold that the appellant was negligent in the matter of accident. Therefore, I am of the view that the Tribunal went wrong in finding 25% negligence on the part of the appellant and therefore, the said finding is liable to the set aside and I do the same and it is held that the accident is of the contribution of negligence on the part of the bike rider and the bus driver in the proportion 50: 50.
10. It is submitted by the learned counsel for the appellant further that if the contributory negligence found against the appellant is set aside, the appellant is satisfied with the compensation awarded by the Tribunal. Submission recorded in open court. Therefore, there is no MACA NO. 1370 OF 2014 7 need to consider sufficiency of compensation in any manner.
In view of the submission, I am to hold that the appellant is entitled to get compensation to the tune of Rs.6,11,500/- (Rupees six lakh eleven thousand and five hundred only) assessed by the Tribunal, with the same rate of interest granted by the Tribunal. Therefore, the respective insurers are directed to deposit the same in the proportion 50:50 after depositing the court fee, specifically ordered by the Tribunal by separate cheque in the name of the appellant. On deposit, the appellant is at liberty to receive the same.
Sd/-
A. BADHARUDEEN JUDGE nkr