IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1592 of 2008()
1. RAMACHANDRAN, S/O.SUBRAMANYAN,
... Petitioner
Vs
1. EASOW VARGHESE, MOTHEDATHU GRACE VILLA
... Respondent
2. RAJAN, S/O.KOSHY THARAKAN,
3. M/S.NATIONAL INSURANCE COMPANY LTD.,
For Petitioner :SRI.A.A.MOHAMMED NAZIR
For Respondent :SRI.S.SHANAVAS KHAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :29/10/2008
O R D E R
M.N. KRISHNAN, J
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M.A.C.A.Nos. 1592 OF 2008
&
1593 OF 2008
---------------------------------
Dated this the 29th day of October, 2008
JUDGMENT
These appeals are preferred against the award of the Motor
Accident Claims Tribunal, Muvattupuzha in O.P.(MV) Nos.
1214/2004 and 1207/2004. The brief facts necessary for disposal
of these appeals are stated as follows:
2. The claimant in O.P. 1207/04 was a rider of a two wheeler
with the petitioner in O.P. 1214/04 as the pillion rider. A lorry
bearing Registration No. KL-3D/5814 driven by the 2nd respondent
in the claim application was going ahead of this motorbike. It is the
case of the petitioners that the driver of the lorry applied sudden
brake as a result of which the bike went and hit on the back of the
lorry resulting injuries to both the occupants of the motorbike. The
Insurance Company would contend that the accident took place only
on account of the negligence of the motorcyclist and therefore the
claim petitions are liable to be dismissed.
3. The Tribunal after consideration of the materials agreed
with the contention of the Insurance Company and dismissed the
M.A.C.A.Nos. 1592 OF 2008 & 1593 OF 2008
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claim applications. It is against that decision, the appeals are
preferred. The question that arise for determination in these
appeals is whether the motorcyclist alone is negligent or the lorry
driver alone is negligent or whether both are negligent. It is true
that there is a statutory obligation for driver or rider of a vehicle to
keep a distance of 10 metres from the vehicle going in front of it.
When such a condition is always satisfied then there will be no
chance for a hit from behind in all cases. It does not mean that one
may be always able to keep a distance of 10 metres in a road for
the reason that the vehicle traffic in the present condition is so thick
and there can not be a distance of even one or two metres between
the vehicles. This is a practical difficulty which is experienced in the
present set up. It does not mean that one can go so close and
later blaming ongoing vehicles for the accident. In these cases it
has to be specifically understood that the strong contention of the
rider of the motorbike is that the lorry which was going in front of
him applied sudden brake which resulted in the dashing of the
motorcycle on the back of the lorry. There may be circumstances
where the on moving vehicle may have to apply sudden brake. But
it is for that party to come before the court and give evidence what
M.A.C.A.Nos. 1592 OF 2008 & 1593 OF 2008
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prompted or forced him to apply a sudden brake. Instead of
rendering an explanation, what the driver of the lorry has done is,
on receipt of the summons from the criminal court, appears before
the court and pleads guilty and pays the fine. So by his conduct
after understanding the allegations in the criminal case he had
pleaded guilty which shows that he had applied sudden brake.
When he had applied sudden brake and if the motorcycle was
coming at a reasonable speed even then he might not have been in
a position to stop the vehicle because it was so unexpected and in
some cases if sudden brake is applied the rider as well as the pillion
rider will be thrown out resulting in serious injuries. It has also
to be born in mind that no person will like to go and hit on the back
of a vehicle and sustain injury for himself. Therefore here is a case
where the lorry driver was primarily responsible for applying a
sudden brake without proper care and a motorcyclist on account of
the lack of non compliance of the statutory regulations had gone
and hit on the back of the lorry. So both the drivers had
contributed equally to the accident. The Tribunal has extracted the
deposition of PW1 wherein PW1 admits that he knows that a
reasonable distance has to be kept from the on moving vehicle and
M.A.C.A.Nos. 1592 OF 2008 & 1593 OF 2008
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when a question was put him regarding application of sudden brake
he had given the explanation that if sudden brake was applied, both
of them would have fallen from the bike.
4. Therefore from the circumstances available in this case
I hold this is a case where the rider of the bike as well as the lorry
has equally contributed to the accident and therefore I apportion
the negligence at 50% each on both the rider of the bike and the
lorry driver. The next question is regarding compensation. In view
of this finding the Tribunal may have to consider the quantum of
compensation. For that purpose both the parties are permitted to
produce documentary as well as oral evidence and the matter be
disposed of in accordance with law.
Both the parties are directed to appear before the Tribunal on
15.12.2008.
M.N. KRISHNAN, JUDGE
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