Girish M.R vs Lingesh
2022 Latest Caselaw 7407 Ker

                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

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

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

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

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

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