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Gimens vs Baby on 26 November, 2008

Kerala High Court
Gimens vs Baby on 26 November, 2008
       

  

  

 
 
  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

———————-

Koshy, J.

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

M.A.C.A. No.1489 of 2006

-: 2 :-

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

Bijoy Kumar Dugar v. Bidyadar Dutta and Others (AIR

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

M.A.C.A. No.1489 of 2006

-: 3 :-

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.

vsv

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