High Court Kerala High Court

National Insurance Company … vs Biju A.Anandan on 4 June, 2009

Kerala High Court
National Insurance Company … vs Biju A.Anandan on 4 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 763 of 2009()


1. NATIONAL INSURANCE COMPANY LIMITED,
                      ...  Petitioner

                        Vs



1. BIJU A.ANANDAN, S/O.ANANDAN,BIJU BHAVAN,
                       ...       Respondent

                For Petitioner  :SRI.MATHEWS JACOB (SR.)

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :04/06/2009

 O R D E R
                       V. RAMKUMAR , J.
            ==========================
                      M.A.C.A. No. 763 of 2009
            ==========================
                Dated this the 4th day of June, 2009.

                           JUDGMENT

In this appeal filed by the insurer, the award dated

31.07.2008 in O.P. (MV) No. 1489 of 2000 on the file of the

Motor Accident Claims Tribunal, Attingal is challenged. The

original petition filed by the sole respondent herein, was under

Section 166 of the Motor Vehicles Act, 1988 (“The Act” for short)

for the injuries sustained by him in a road traffic accident which

took place on 18.08.1988. The respondent/claimant was riding

his motorcycle bearing registration No. KL-01/K-4692 which

collided with another motorcycle bearing registration No. KL-01/C

3439. The riders of both the motorcycles sustained injuries and

the driver of the other motorcycle succumbed to the injuries. The

respondent/claimant had sustained multiple fractures and the

learned Tribunal after a careful evaluation of the oral and

documentary evidence in the case, assessed the just

compensation at Rs.91,429/- payable with interest at the rate of

7.5% per annum from the date of the application namely

M.A.C.A. No. 763/2009 : 2 :

25.10.2000 till the date of award and thereafter at the rate of

9%.

2. The main contentions of the appellant/insurer are the

following:-

i. The dependents of the driver of the motorcycle

bearing registration No. KL-01/C-3439 who succumbed to the

injuries in the accident had lodged a claim as O.P. (M.V.) No.

1134 of 1998 in which they proceeded on the basis that the

respondent herein was negligent. The said O.P ended in

compromise awarding a huge amount to the claimants therein.

Thereafter, the respondent herein was estopped from filing the

present O.P on the footing that the accident took place on

account of the negligence of the deceased.

ii. The Mangalapuram Police had charge sheeted

the respondent/claimant as the person responsible for the rash

and negligible driving resulting in the accident. It was on that

basis that O.P (M.V) No. 1134 of 1998 came to be awarded

against the respondent herein. Hence, the respondent was

precluded from filing the present claim on the footing that the

M.A.C.A. No. 763/2009 : 3 :

accident took place on account of the negligence of the deceased

rider of the other motor cycle.

3. I am afraid that I find myself unable to agree with the

above contentions. As per the impugned award, the respondent

as well as the rider of the other motor cycle have been found

responsible for the accident apportioning the liability between

them in the ratio of 50:50. If so, merely because the claim was

made against the respondent herein on the footing that he was

negligent for the accident and that claim was finally settled

awarding compensation to the dependents of the rider of the

other vehicle, does not preclude the respondent herein from

lodging a claim alleging negligence on the part of the rider of the

other vehicle.

4. It is true that the Mangalapuram police had charge

sheeted the respondent herein as the person responsible for the

rash and negligent driving resulting in the accident. But the

stand taken by the police cannot be the final say to the matter

particularly when the fact remains that the respondent herein

was acquitted by the criminal court. Hence, it cannot be said

M.A.C.A. No. 763/2009 : 4 :

that the respondent was estopped from preferring a claim against

the other vehicle involved in the accident.

5. As for the quantum of compensation, I do not think that

the assessment by the Tribunal is on the higher side. I,

therefore, do not find any good ground for interference with the

impugned award. This appeal is, accordingly, dismissed in

limine.

Dated this the 4th day of June, 2009.

V. RAMKUMAR, JUDGE.

rv

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