Binoy Paily vs Dani Varghese.M. on 8 April, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 615 of 2007()


1. BINOY PAILY, S/O.PAILY,
                      ...  Petitioner

                        Vs



1. DANI VARGHESE.M., S/O.VARGHESE,
                       ...       Respondent

2. VARGHESE.A.K., S/O.ALIAS,

3. THE ORIENTAL INSURANCE CO. LTD.

                For Petitioner  :SRI.PEEYUS A.KOTTAM

                For Respondent  :SRI.A.R.GEORGE

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :08/04/2009

 O R D E R
                    C.N.RAMACHANDRAN NAIR &
                         K.SURENDRA MOHAN, JJ.
               ....................................................................
                           M.A.C.A. No.615 of 2007
               ....................................................................
                  Dated this the 8th day of April, 2009.

                                      JUDGMENT

Ramachandran Nair, J.

Appeal is filed challenging the order of the MACT rejecting

claim petition filed by the appellant for the reason that accident was on

account of negligence by the appellant. We have heard counsel

appearing for the appellant and Standing Counsel appearing for the

Insurance company.

2. Counsel for the appellant submitted that accident is not on

account of negligence of the appellant as found by the MACT. He

referred to the report of the AMVI and the FIR which show that

appellant’s two wheeler went and hit the centre of the two wheeler

going in front of him. The MACT took this as a case of accident

arising on account of appellant’s failure to maintain minimum clearance

from the vehicle going in front of him. Even though the principle

stated by the MACT is correct, we notice that the accident in this case

happened only after the vehicle going in front of the appellant’s vehicle

2

turned to the right. In fact it is clear from the evidence that the

appellant’s vehicle went and hit in the middle of the vehicle going in

front which only means that the vehicle going in front of the appellant

was turning to the right. Of course if the vehicle turned without giving

indication, appellant would not have had notice and there was no

escape from the accident. On the other hand, the MACT has referred to

the Police case and stated that the motor vehicle turned to the right only

after giving indication. In any case we are of the view that the

accident is not completely attributable to the appellant and at the

maximum, his speed and indifference would have contributed to it.

Since the appellant was in the hospital for two weeks and he has

suffered injuries on his face and since the accident is not fully

attributable to him, we award a compensation of Rs.25,000/- which will

be deposited by the third respondent with interest at 7.5% p.a. from

date of application till date of payment.

C.N.RAMACHANDRAN NAIR
Judge

K.SURENDRA MOHAN
Judge
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