IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 1489 of 2006() 1. GIMENS, S/O. ELDHOSE, ... Petitioner Vs 1. BABY, S/O. POULOSE, ... Respondent 2. P.I. YACOB, S/O. ISSAC, 3. UNITED INDIA INSURANCE CO.LTD., For Petitioner :SRI.P.V.GEORGE(PUTHIYIDAM) For Respondent :SRI.C.V.BIMAL ROY The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :26/11/2008 O R D E R J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.1489 of 2006 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of November, 2008 J U D G M E N T
Appellant-claimant while traveling as pillion rider on motor cycle
bearing Reg. No.KL-7/Q-3257 sustained injuries on 7.6.2002 when the
bus bearing Reg. No.KL-7/AE-8482 driven by the first respondent hit
the motor cycle. Tribunal rejected the claim as negligence of the first
respondent who was driving the bus was not proved. Third respondent
alone contested the case. Both sides relied on documentary evidence.
No oral evidence was produced. Exhibit A1 is the FIR which alleges
negligence only on the driver of the bus. Exhibit A2 shows that the
driver of the bus was charge-sheeted. Exhibits A3 and A4 are the
Motor Vehicle Inspector’s report. Tribunal was of the opinion that as
per the charge-sheet, accident spot is a little on the wrong side of the
motor cyclist and therefore bus driver cannot be held to be negligent.
As per the charge-sheet, collision had occurred at a distance of 25 cms
south of the northern end of the tar road. Bus was proceeding from
west to east while the motor cycle was proceeding slightly on the
wrong side. It is contended by the learned counsel for the appellant
that immediately on the bus hitting the motor cycle it was pushed
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back and the position of the motor cycle after accident mentioned in
the charge-sheet is not correct and on the basis of the accident spot
stated in the mahazar, it cannot be held that motor cyclist was solely
responsible for the accident. It was a head on collision. In fact after
enquiry police charge-sheeted the bus driver. The Supreme Court in
2006 SC 1255) held that in a case of head on collision in the absence
of clear evidence, negligence of both drivers can be presumed.
Learned counsel contended that the driver of the motor cycle pleaded
guilty before the Magistrate and produced a copy of the criminal
court judgment. Considering all these facts, we are of the opinion that
the motor cyclist and the bus driver were negligent and apportion the
negligence on both the drivers in equal proportion, i.e. 50:50. The
rider of the motor cycle is not a party to the claim. First respondent
driver of the bus has to pay the 50% of the compensation awarded.
Second respondent owner is vicariously liable and he is also jointly and
severally liable to pay compensation. Third respondent being the
insurer of the bus has to pay the amount. We find that the Tribunal
has not assessed the quantum of compensation. We are of the opinion
that for that purpose, the matter has to be sent back. We have found
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that there is 50:50 negligence. Hence the respondents are liable to
pay only 50% of the compensation to be assessed by the Tribunal.
Appeal is allowed in part. The award under challenge
dismissing the application is set aside. Case is remanded to the Motor
Accidents Claims Tribunal, Muvattupuzha for assessment of
compensation and passing award. Parties are directed to appear in
the Tribunal on 2.2.2009.
J.B. KOSHY, JUDGE.
THOMAS P.JOSEPH, JUDGE.